Tuesday 17 June 2014

Guess who did not notify or pay the fee?

An anonymous comment, left on one of our posts below, caught our eye and needs more prominence.
Anonymous1/6/14 14:18
Perhaps it may aid your case if ATVOD were questioned on why the did not register with the Information Commisioners Office until 28th September 2013.
It would appear that they held data illegally for almost 3 1/2 years.
If so, then passing on information they held to OFCOM may too have been against the law?
It seems that ATVOD, who go about collecting personal data on individuals and publishing it along with their "determinations" that someone has failed to notify them or paid them a fee, had themselves failed to notify the Information Commissioner of its personal data processing. Neither had it paid the fee to be registered. What's more, when ATVOD belatedly registered in September last year, following complaints, they completely failed to provide the information they are obliged to. ATVOD's listing states that the purpose of their collecting private data about you is, "to enable us to promote our goods and services".  They must mean their exciting new range of ATVOD blindfolds and earplugs,  specially crafted to protect teenagers from discovering that they weren't found in the gooseberry patch or brought by the stork.


We look forward to the Information Commissioner's Office taking decisive action. But don't hold your breath. When we asked for confirmation that last September was the date of ATVOD's first registration, we were told that the ICO cannot comment because that would break the Data Protection Act.

Thursday 13 March 2014

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 caseAnd 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. 

Saturday 8 March 2014

Progress catchup 2 - Analysis and reply

This is what we made of the Ofcom response posted in the previous entry.

Ofcom refutes the claim on two grounds. First, on the issue of 'standing' to bring a claim, and second, on the issue of whether the claim would be brought within the permitted time limit. Both of these considerations are very important, and would be sufficient in themselves to enable the Court to dismiss the claim if it agreed with these submissions. On the other hand these issues are arguable either way, and we had given a lot of thought to both. We would not have begun to consider a claim unless we were confident that our argument on these issues was far stronger than any counter argument. We'll return to these technical questions  in slightly more depth in the next blog entry. 

However, what is more striking about Ofcom's response is that it completely fails to address the substantive elements of the proposed claim. It merely dismisses it as without merit and recites a litany of the provisions of the Communications Act as if that was any sort of answer to the issues raised. We therefore considered it appropriate to reply briefly, putting the two black and white issues to them again. Ofcom would be forced to argue against these issues if they were to make a defence. Merely dismissing them as not worth responding to would hardly cut any mustard in Court and pre-action protocol requires that they respond.

We wrote in reply:
"With regard to the substance of the claim, your reply makes one reference to what is described as “...various proposed challenges to primary legislation as made by Parliament”. In fact the issues lie with secondary legislation, specifically the Audiovisual Media Services Regulations 2009 & 2010 (si. 2009/2979 & si. 2010/419). We contend that the regulations confer no power on ATVOD or Ofcom to make rules or requirements that might be breached. One cannot breach a requirement to employ “CAC systems”, for instance, unless one is bound to comply with such a requirement. Accordingly, we will claim, Ofcom had no power to direct that an alleged ‘service provider’ be sanctioned for failing to comply with any order, rule, regulation or subordinate instrument that ATVOD had no power to make. See paragraph 14 of the letter before action. 
Also we contend that the Regulations which became s.368NA, and s.368D(3)(za), which Ofcom found JP Media to have contravened in its notice of 23 September, are void and always were void. This is so, we will claim, because the Secretary of State did not have power to impose taxation as delegated legislation under the enabling Act. Fees required to be paid to Ofcom or the appropriate regulatory authority are taxation meeting those principles defined in Lower Mainland Dairy Products Sales Adjustment Committee v Crystal Dairy, Limited (British Columbia) [1932] UKPC 70; [1933] AC 168 . See paragraph 12 of the letter before action. 
It is the strength and simplicity of these arguments that have given us confidence to consider applying for judicial review, if however you are aware of something that we have overlooked. It would save everyone’s time and effort if we had a chance to consider any objection before we proceed. Time is now very close by our estimation at least, so your very prompt response indicating your position on these issues would be desirable. If you feel a purpose would be served by more time, we would be prepared to issue proceedings and apply for a stay for a period to allow further discussion."
Ofcom replied within two days:
"As stated in our response of 7 February 2014 to your letter before claim, Ofcom considers that you do not have standing to bring a claim, there is no merit in your proposed claim, and in any event, you are out of time to do so. As previously explained, we would seek to recover our costs in relation to any such claim, including the cost of acknowledging service."
Such a reply is not really very clever. It might give the writer some emotional satisfaction, but it would be likely to be viewed by the Court as contrary to the spirit of pre-action protocol and would most likely undermine any case they might wish to make about recovering their costs.  

Of course, what is much more damaging to their defence is that it is perfectly clear that they do not have an answer to the substantive case. And the effect of their refusal to comment is to advertise the fact. They are quite capable and willing to outline a defence on the issues of 'locus standi' and 'time limits', so why fail completely to address the 'ultra vires' issues? Now is the time that they need to indicate at least the basis of any defence they will rely on later.  

Progress catchup 1 - update on the challenge to Ofcom/ATVOD

Ofcom were given until 7 February to reply. At 4.30 pm on the 7th they e-mailed their reply. This is the response letter we received posted in full below as jpeg images. 

In summary
                     Ofcom first set out the history of the case in terms of ATVOD's and Ofcom's procedure, then they responded to the grounds of claim as put to them, before replying to the request for information and documents and indicating that they would oppose an application for a protected costs order. 

Below is copied the important bit - their response to the grounds to bring the claim.


" Ofcom's response to the proposed claim
Ofcom considers that there is no merit in the proposed grounds of challenge advanced in your letter dated 24 January 2013.
Standing
In order to bring a claim for judicial review, a party must have "sufficient interest in the matter to which the application relates". Ofcom does not consider that Some Common Sense, which you describe as "an ad hoc group of concerned individuals and groups" has sufficient interest to bring an application. Even more so, we note that your group does not appear to include either the person to whom Ofcom's direction was addressed (i.e. the Service Provider) nor the person featuring in the Service (i.e. Jessica Pressley).
Time for bringing a claim
Rule 54.5 of the CPR requires that a claim must be brought "(a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose." Neither of these requirements have been satisfied.
Given that Ofcom's direction was given on 7 October 2013, the three month period for bringing a claim expired on 7 January 2014. That the proposed Claimants may not have been aware of Ofcom's direction until it was published on its website on 15 November 2013 is not relevant (and merely emphasises that the proposed Claimants do not have sufficient interest in the matter to bring a claim).
Substantive proposed claim
Moreover, any application for judicial review would be without merit. It is not clear from your letter exactly what are your proposed grounds for review. However, they appear primarily to relate to the compatibility of Ofcom's decision with Article 10 of the European Convention on Human Rights.
Ofcom's decision is not an unlawful interference with Some Common Sense's freedom of expression. Article 10 states that the right to freedom of expression may be subject to restrictions as are prescribed by law and are necessary in a democratic society, inter alia, for the protection of health and morals, and Ofcom's decision was compatible with this.
Under section 368(c) of the Act, both Ofcom and ATVOD (as the appropriate designated authority) are under a duty "to take such steps as appear to them best calculated to secure that every provider of an on-demand programme service complies with the requirements of section 368D". Section 368D in turn requires providers of on-demand programme services to comply with the requirements of sections 368E to 368H and these include, of particular relevance to the present case, a requirement under section 368E(2) that "if an on-demand programme service contains material which might seriously impair the physical, mental or moral development of persons under the age of eighteen, the material must be made available in a manner which secures that such persons will not normally see or hear it."
Ofcom was clearly applying the statutory scheme prescribed by law, which Parliament has determined is necessary in a democratic society for the protection of under-eighteens from harmful material.
Ofcom does not accept your assertion that it has incorrectly applied section 368A(1) in finding that the Service was an ODPS, or that it incorrectly applied section 368E(2) in finding that the Service "might seriously impair the physical,mental or moral development of persons under the age  of eighteen". In relation to the first point, we note that the Service Provider had an opportunity to appeal ATVOD's decision that it was an ODPS to Ofcom and did not do so. On the secondpoint, Ofcom has made numerous findings in relation to R!* material, and it is absurd to suggest that the Service's own "conditions of entry" would be enough to prevent minors from viewing the R18 material."


Friday 24 January 2014

Letter before action sent. 24 January

Today the letter was sent. The final text is pasted in the post below overwriting the draft text. It's substantially the same. It may be slightly longer, which may not be a virtue, but hopefully it's clearer. The title of the blog has been changed to 'Some Common Sense' to bring it into line with the claimant.

Thursday 16 January 2014

Draft letter before action


Rather than make a new post this has been updated today, 24 January 2013 replacing the draft text with the actual text of the letter sent. 


Below is the text of a draft of a 'letter before action' that it is proposed to send to Ofcom.  
Below is the text of the letter sent to Ofcom. Under Court rules Ofcom is obliged to reply within 14 days stating whether or not it concedes the case in whole or in part. The core of the claim is that for technical reasons Ofcom/ATVOD had no lawful power to make rules requiring age verification. Neither is the requirement to pay ATVOD fees lawful. Therefore Ofcom acted unlawfully in issuing a direction that a website called "Jessica Pressley" should be shut down following findings that it had not 'notified', paid a fee and instituted age verification checks. This action is being pursued to protect a matter of principle, on the basis that everyone has a right to be able to receive information and ideas from any source without interference from a public authority. It isn't being pursued on behalf of the "Jessica Pressley" website, or any other private interest. "Jessica Pressley" has had no involvement with the bringing of this case.

Because the statutory requirements are unambiguous, Ofcom has (hopefully) very little room to make a defence. It is hoped therefore that Ofcom will concede the issue and reign in ATVOD without the matter needing to go to Court. But if it is necessary to apply for judicial review we are quietly confident (albeit in advance of a response from Ofcom) that we would succeed.


TEXT OF THE LETTER BEFORE ACTION


Dear Sirs,

Letter before Action in compliance with CPR 54 Pre-action Protocol for Judicial Review

We write to inform you that we intend to challenge Ofcom’s action in issuing a Direction under s.368K of the Communications Act 2003 against JP Media on 7 October 2013 (http://stakeholders.ofcom.org.uk/enforcement/video-on-demand-services/jessica-pressley-statement ) by which the right to freedom of expression of every internet user who might wish to receive information and ideas imparted by JP Media has been violated unlawfully.
We have set out our proposed grounds of claim below. The purpose of this letter is to comply with the CPR 54 Judicial Review Pre-Action Protocol.
We also want to give Ofcom an opportunity to reconsider its position and respond in a way that either makes the proposed claim unnecessary, or narrows what is in dispute, or otherwise makes Ofcom’s position clearer.
A response is requested by 7 February 2014.

1.     ‘Some Common Sense’ is an ad hoc group of concerned individuals and groups. The proposed claimant will be a representative person or persons who will say that their rights to receive information and ideas on the world wide web as guaranteed by article 10 (art.10) of the European Convention of Human Rights (ECHR) as scheduled to the Human Rights Act 1998 (the HRA) have been unlawfully interfered with by Ofcom.
2.     The proposed defendant is the Office of Communications (Ofcom). Ofcom is a public authority within the meaning of section 6 of the HRA. Ofcom’s implementation of the provisions of the Communications Act 2003 (the CA) is susceptible to judicial review if it unjustifiably interferes with the human rights of those affected or is otherwise unlawful.
3.     Interested parties would include
a.     ATVOD, of 27 Sheet Street, Windsor, Berkshire, SL4 1BN 
b.     JP Media, of Flat 7, Water House,
Porters Way,
Polegate,
BN26 6RJ (last known address)
c.     Secretary of State for Culture Media and Sport, DCMS, 2-4 Cockspur Street
London
SW1Y 5DH 
Copies of this letter before action have been sent to each of them for their information.
4.     The alleged wrongful conduct is, Ofcom issuing the Direction of 7 October 2013 to JP Media (the Direction) which suspended its right to provide the “Jessica Pressley” website or any other “on-demand programme service” (ODPS) under powers provided by s.368K of the CA. http://stakeholders.ofcom.org.uk/enforcement/video-on-demand-services/jessica-pressley-statement/
5.     This became known to the claimants when ATVOD published a press release which was reported in the Guardian Newspaper on 15 November 2013 and was published on the ATVOD website the same day.
6.     The remedies sought would be
a.     the quashing of Ofcom’s Direction of 7 October 2013 against JP Media.
b.     a declaration that ATVOD and Ofcom had exceeded their powers under Part 4A of the CA in respect of the making and enforcement of rules and requirements beyond the provisions of the Act itself.
c.     a declaration that s.368NA (and consequent provisions) of the CA is void ab initio.
  1. The Direction suppressing the Jessica Pressley website was an interference with the claimants’ art.10 right to freedom of expression. It was unlawful unless the interference —
a.     was made for one of the legitimate purposes contained in the second paragraph of art.10 ECHR (art.10(2))
and
b.     was prescribed by law
and
c.     was necessary in a democratic state.
  1. The burden of justifying an interference with the exercise of a Convention right such as that protected by art.10 lies on the public authority which has interfered with such exercise, in this case Ofcom.
Prescribed by law
9.     The Direction followed from Determinations by ATVOD that the Jessica Pressley website —
a.     was an ODPS determined not to have given prior notification (Rule 1)
b.     had not paid a fee (Rule 4)
c.     and had not implemented stipulations contained in the ATVOD Rules & Guidance that it must employ a so called “CAC System” relating to age verification. (Rule 11)
10.  ATVOD’s  Rules 1 and 4 Determination reads:
“... ATVOD’s determination is that Jessica Pressley is an ODPS in respect of which a notification has not been given and in respect of which a fee has not been paid, and that therefore between 18 March 2013 and 24 June 2013 J P Media was in breach of Rule 1 and Rule 4 in relation to the service Jessica Pressley. These breaches constitute an infringement of the statutory requirement set out in section 368BA (Requirement to notify an ODPS) and 368D(3)(za) (Requirement to pay a fee) of the Act.”
ATVOD Rule 1
11.  Section 368A(1)(a) of the CA defines an ODPS.
For the purposes of this Act, a service is an “on-demand programme service”
if—
(a) its principal purpose is the provision of programmes the form and content of which are comparable to the form and content of programmes normally included in television programme services
a.     The Jessica Pressley website was not an ODPS as defined by section 368A(1)(a). Referring to the videos on the website, ATVOD determined that the website was an ODPS because, Although these programmes do not feature credits to cast and crew, they are directly comparable in this and other relevant respects with programmes shown on some broadcast adult channels”. Can the absence of programme credits be evidence that the Jessica Pressley video content was comparable to television broadcasts? This might seem a rather strange finding until you appreciate that Ofcom had previously found that the absence of programme credits was indicative of a video not being comparable to television. (http://stakeholders.ofcom.org.uk/binaries/enforcement/vod-services/top-gear-youtube-decision.pdf )  However taking account of this, the finding seems not merely strange but strangely perverse. The truth is that the Jessica Pressley website was simply an internet website. It didn’t carry television material. It wasn’t delivering television content through television on-demand platforms or delivery systems. The videos featured no well-known television actors, they were short, without voiceover, without incidental music, with rudimentary sound recording, with the barest narrative and dialogue, consisting of substantially one continuous take (in contrast with television productions which are constructed through film editing so that shots are typically only two or three seconds in length). There were no credits to cast and crew, not least because probably the cast was the crew and consisted of a couple of persons with a camcorder. It was not television of any sort. It was a website on the world wide web accessible through the internet. To stretch definitions to argue otherwise is absurd. One might as well say that a village cricket match is television because the Ashes series is televised. The website was not an ODPS that a user would expect to be regulated as television on-demand. And if it wasn’t an ODPS Ofcom had no authority to issue the Direction, which was not prescribed by law.
b.     Alternatively, even if it were found to have been an ODPS, s.368(1)(a) of the CA is not formulated with sufficient precision to enable JP Media, or ATVOD, or Ofcom, or anyone else, to foresee with a reasonable degree of certainty whether a website might be an ODPS or not. The criteria by which Ofcom or ATVOD might determine a website to be an ODPS can be variously either so broad or so finely drawn as to be arbitrary, possibly relying excessively on an interpretation the word “dynamic” in the last sentence of recital 17 of Directive 2007/65/EC (recital 24 Directive 2010/13/EU) at the expense of the recital as a whole. Thereby Ofcom/ATVOD have introduced new criteria that could not have been foreseen on the basis of the text of s.368A(1)(a) of the CA. And accordingly ATVOD’s Determination and Ofcom’s enforcement Direction were not prescribed by law. (c.f.Gaweda v Poland, app. 26229/95, [2002] ECHR 301, (2004) 39 EHRR 4
ATVOD Rule 4
12.  Even if the website were an ODPS, in respect of which a fee may not have been paid, the Secretary of State did not have power to amend the CA by the Audiovisual Media Services Regulations (AVMSR) 2010 (si.2010/419) to insert s.368NA under powers provided by s.2(2) of the European Communities Act 1972 (ECA) subject to Schedule 2 of the ECA, because s.1(1)(a) of schedule 2 of  the ECA excludes power –
(a) to make any provision imposing or increasing taxation
The requirement to pay a licence fee to a public body is taxation. Therefore s.368NA of the CA as amended is void ab initio. Therefore ATVOD’s rule 4 is unlawful, and the requirement to pay a fee was not prescribed by law.
ATVOD Rule 11
13.  ATVOD’s Rule 11 Determination reads:
“ATVOD has determined that between 18 March 2013 and 24 June 2013, JP Media was committing two breaches of Rule 11 (Harmful Material: Protection of the Under-18’s) in relation to the service Jessica Pressley
Rule 11 requires that ‘R18’ equivalent material should only be made available in on demand programme services in a manner which secures that persons under the age of eighteen will not normally see or hear it.
(1)   This service has breached Rule 11 in relation to the free content on the service in that a person under the age of eighteen could easily  access ‘R18’ equivalent material, including still images and video, unprotected by any form of CAC System or age verification
(2)   The service provider has breached Rule 11 in failing to have in place an effective CAC System which verified that the user was aged eighteen or over at the point of registration or access by the mandatory use of technical tools for age verification.
Each breach constitutes an infringement of the statutory requirement set out in section 368E(2) of the Communications Act 2003”
14.  But even if Jessica Pressley were an ODPS regulated by ATVOD and Ofcom. And whereas it may not have put in place so called CAC Systems to the specification required by ATVOD, which was determined to have been “two breaches” of ATVOD’s Rules & Guidance, ATVOD had no power to require compliance with such Rules & Guidance, or to determine breaches of them. ATVOD has no power to enforce anything beyond the requirements of the Act itself because it was designated by Ofcom to co-regulate the provisions of Part 4A of the CA which were created by the AVMSRs 2009 & 2010 (si.2009/2979 & si.2010/419) under powers provided by s.2(2) of the ECA subject to Schedule 2 of the ECA. However, s.1(1)(c) of schedule 2 of the ECA denies power –
(c) to confer any power to legislate by means of orders, rules, regulations or other subordinate instrument, other than rules of procedure for any court or tribunal
Therefore nothing introduced into the CA by the AVMSRs 2009 and 2010 could grant Ofcom or ATVOD power to make binding ATVOD Rules & Guidance, or to determine that there had been breaches of them said to require employment of CAC Systems, or to control access by the mandatory use of technical tools for age verification, whether under a precautionary approach or any other approach. Therefore ATVOD’s determination, and its enforcement notice, that there had been a breach of its Rule 11 was ultra vires. And thus since Ofcom’s Direction followed directly from ATVOD’s Determinations and Enforcement Notification, the Direction was also not prescribed by law.

Necessary to a legitimate purpose
15.  Further the interference was either not made for a legitimate purpose, or was not necessary to achieve that purpose, insofar as it was intended to uphold the requirement of s.368E(2) of the CA which states—
(2)  If an on-demand programme service contains material which might seriously impair the physical, mental or moral development of persons under the age of eighteen, the material must be made available in a manner which secures that such persons will not normally see or hear it.
In contrast ATVOD’s Rule 11 as cited in ATVOD’s determination
requires that ‘R18’ equivalent material should only be made available in on demand programme services in a manner which secures that persons under the age of eighteen will not normally see or hear it
Section 368E(2) however contains no mention of “R18 equivalent material”. ATVOD and Ofcom as the appropriate authorities are constrained to enforce only the requirements of the Act, which require restrictions only for  material which might seriously impair ”.  Ofcom itself has commissioned two reviews of all the available academic research into the question of whether sexually explicit expression might harm young persons in 2005 and again in 2010. In the 2005 review (R18 material: its potential impact on people under 18,  http://stakeholders.ofcom.org.uk/binaries/research/radio-research/r18.pdf ), Ellen Helsper found in answer to the question,
Might R18 material seriously impair the development of minors?”
“From the research reviewed in this report the answer would be no.”.
In 2010 Dr Guy Cumberbatch reviewed the academic evidence again (Annexed to Sexually Explicit Material and Video On Demand Services - A Report to DCMS by Ofcom  http://stakeholders.ofcom.org.uk/binaries/internet/explicit-material-vod.pdf ). The Executive summary reports,
Guy Cumberbatch’s main conclusions are consistent with the conclusions of the 2005 review”.
The Jessica Pressley site, although sexually explicit, and possibly “R18 equivalent”, could not be said to contain material which might seriously impair the development of persons under eighteen. Neither Ofcom nor ATVOD produced any evidence that anything on the website in question might impair the development of young persons in any degree. And if the complaint is that it contained R18 equivalent material, Ofcom’s own research fails to support the idea that such material might seriously impair etc. Therefore the interference was either unnecessary or not made for a legitimate purpose such as for the protection of health or morals.
16.  Moreover, access to the Jessica Pressley website could only be effected via a webpage requiring an act signifying acceptance of conditions of entry which stated.
By proceeding you affirm that you are at least 18 years or older, and that you are voluntarily choosing to view and access such sexually-explicit images and content for your own personal use.”
The website clearly was not intended to be viewed by persons under eighteen at all, and would not normally be viewed by such persons. Young persons could not normally see it by accident or chance. They might only do so by exceptionally affirming falsely that they satisfied the conditions of entry. There is no evidence that any person under eighteen ever saw the Jessica Pressley website, and such persons could not normally do so.
17.  Ofcom has entirely suppressed the Jessica Pressley website, and disproportionately prohibited the person or persons represented by JP Media indefinitely from posting anything to the internet which might arbitrarily be held to be an ODPS. Ofcom must convincingly establish that these measures were necessary and proportionate to a legitimate aim. The claimants believe that Ofcom cannot do so. Neither were they prescribed by law. Therefore there has been an unwarranted violation of the claimants’ fundamental right to receive information and ideas imparted by JP Media or Jessica Pressley.