Progress update 3 - the difficult decision to discontinue

Very reluctantly, we felt it necessary to stop short of filing this claim with regards to the Jessica Pressley ban. Bringing legal proceedings is a serious matter which carries risks of heavy costs or of producing a counterproductive result. In this case, for relatively complicated technical reasons, we decided at the last minute to draw back from issuing the claim. This doesn't mean that we've abandoned the argument. It just means that on the particular case of the Jessica Pressley banning order we won't be going to Court. We are still looking for an opportunity to bring a challenge to the DCMS/Ofcom/ATVOD's unlawful arrogation of powers that only belong to Parliament and thereby to interfere with liberty of expression on the Internet. 

The issues in the case


Time limit

To apply for permission to seek judicial review a claimant must bring the claim promptly, and in any case, not later than 3 months after the decision was made of which review is sought. In this case the decision complained about was made on 7 October. That would have made 7 January the latest possible date to bring a claim. However the decision we sought to challenge was made behind closed doors and only communicated to JP Media who were silenced by that order. For that reason it was only when Ofcom announced their action publicly on 15 November 2013, through the Ofcom/ATVOD websites, that the Ofcom 'Direction' against JP Media could be known by any other interested party. For that reason we contended that the 3 month time limit expired on 15 February 2014.

Standing

Ofcom also objected that we did not have standing to bring a claim. Under the Human Rights Act 1998 one can only bring a claim relying on an interference with a European Convention Right if one can show that the claimant would have standing (known as "victim status" under the Convention) to bring a claim before the ECHR Court. As it happens we had an individual who was prepared to be the claimant in the case. He could demonstrate that he had successfully visited the Jessica Pressley site in early October 2013 and had tried to visit it again in mid November 2013 but was unable to access it then. Ofcom cannot deny that he was prevented on the second occasion by their action in 'directing' that the website should close. Obviously his Article 10 Right to receive ideas and information imparted by Jessica Pressley was interfered with by Ofcom. That he had the necessary "victim status" under Article 10 is clearly shown by the case of Open Door and Dublin Well Woman v Ireland, (1992) Application no. 14234/88; 14235/88.

All that is then left is the substantive case. And Ofcom do not have an answer to that. Because there is no answer. There is no answer that would survive any scrutiny. And Ofcom know it!

The decision not to proceed

However as regards our challenge, we had three days following receipt of Ofcom's second reply to file our claim. 15 February was a Saturday so effectively we had two. There was still a lot of work to finish preparing and printing the bundles to file and serve the claim. We were, at the same time, deeply concentrating on the legal argument. Ofcom's objection as to 'standing' did not worry us on the argument alone. Although we would have to face convincing the Court, and it was concerning that we still did not have proper representation. So our claimant would be filing the claim as a litigant in person until we could find representation on terms we could afford (preferably pro bono). However the issue which finally caused us to draw back was the question of 'time to bring the claim'. Whilst being relatively confident that our argument on this ought to prevail. This has been a very heavily litigated issue. There is a large body of case law on this. Judges have in the past complained about having to sit through four days of argument on purely that issue. We felt that there was a high risk that the case would get bogged down by a lot of expensively funded argument on that issue. We were concerned that the fundamental issues might be lost sight of. That we would be made to appear as busy bodies involving ourselves in issues that weren't of direct concern to ourselves and lose the sympathy of the Court. Moreover by any calculation the case would be filed, if it were to be, only barely in time.

It was a difficult decision. One that perhaps we might have made differently. The Jessica Pressley case had lots of ingredients that made it a good one to fight. But there we are. Thank you all for your interest and expressions of support. 

The way forward. - A new challenge

However, although we cannot proceed with this one we have not lost heart. We are still actively seeking a case to take forward with the benefit of the work already done and better organisation. We are particularly seeking to challenge ATVOD on the narrow issue of the lawfulness of ATVOD fees. It's a simple issue. Parliament was deceived in pushing through s.368NA of the Communications Act. The Joint Committee on Delegated Legislation reported the measure in 2010 as of dubious vires and for using an unexpected procedure to implement it. ATVOD/Ofcom would have no hope of enforcing any action to require payment, nor of defending a claim for restitution of fees paid previously. That's right. Not only can no one lawfully be obliged to pay ATVOD fees, but any one who has paid any in the past has a right at common law to restitution with interest, under the principle established in Woolwich Equitable Building Society -v- Inland Revenue Commissioners (2) [1993] AC 70. 

If ATVOD is challenged on this issue and a Court ruled that s.368NA is ultra vires, ATVOD is immediately insolvent. That would dispose of them in one step. In as much as Ofcom would be left with responsibility for day to day regulation under Part 4A of the Act, they would be compelled, without new funds, to limit themselves to regulation of television on-demand, and would simply not be able to afford to stray into unlawful attempts to censor the Internet.