Ofcom Discussion

(28-08-2010 22:21 )Scotsman Wrote:  I think since Ofcom are pouring all their staff into the project to destroy the channels by watching them 24/7 and apparently also having someone man the computers everyday looking for slip vids on this forum, we should really start screening new members.

Maybe have them write a 200 word essay on why they should be allowed on the forum? Maybe include a multiple choice section and test them on their knowledge of the babeshows. If it's good, we know they're a fan. If it's perfect and strangely accurate, we'll know it's Ofcom.

That strategy would be doomed to failure; the Ofcommers know the Babechannels better than any of us ever will - they could tell you a presenter's name without ever having seen her face purely on the basis of 'prolonged labial detail and exposed anus' clips.

I do hope no-one suggests fake reviews about things that have not happened on completely tame shows, as that would waste official time.

One option would be to describe shows, but be vague about the channel number, time and day, waiting between 2 and 7 days before posting. Ofcom can act without a viewer complaint, but they cannot go on a "fishing expedition" trawling for days until they find something. Even the taxman isnt allowed to.

(15-07-2010 16:38 )Gold Plated Pension Wrote:  

(14-07-2010 22:33 )Gold Plated Pension Wrote:  [quote='Gold Plated Pension' pid='545736' dateline='1276633648']
Ofcom today find themselves in the High Court to defend their 'Generally Accepted Standards' and 'Offensive Material' policy following a ruling they made against an interview carried out by radio presenter John Gaunt.

Following this ruling Gaunt lost his job at TalkSport but won the right in January 2010 to judicial review the Ofcom decision with the backing of Liberty, a human rights and civil liberties organisation.


John Gaunt lost the judicial review against Ofcom following their decision in May 2009 that he had breached 'Generally Accepted Standards'.

I'm still searching for a link to the full decision to post on this forum so that we can view the details of evidence Ofcom presented to defend their 'Generally Accepted Standards'.

Gaunt has stated he will take this issue all the way to the European Court of Appeal if necessary. Good luck to the guy.

Whilst the full decision is published trying to get an electronic copy of it proves difficult. Have been on the phone all day to different sections of the RCofJ who each pass me on to someone else. Typical.

The case was heard at the Royal Courts of Justice (Queen’s Bench Division) on 15 and 16 June 2010. The case number is CO/9919/2009 and the decision was released on Tuesday 13th July. If anyone can locate the document and post a link it would be appreciated. I will continue trying.

The case was heard before Sir Anthony May and Justice Blair.

For all you budding legal execs here is the full decision including stated case law of the judicial review.

PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE BLAIR
____________________

Between:
GAUNT
Claimant

- and -


OFCOM Defendant
and


LIBERTY Intervener

____________________

G Millar QC and M Henderson (instructed by Howe & Co) for the Claimant
D Anderson QC and D Glen (instructed by Ofcom Legal Dept) for the Defendant
Ivan Hare instructed by Liberty for the Intervener

Hearing dates: 15th and 16th June 2010


The relevant legislation under discussion

Legislation and the Broadcasting Code:

By section 6(1)(a) of the Broadcasting Act 1990, broadcasters were regulated so as to require them to comply with a requirement that nothing would be included in their programmes which "offends against good taste or decency or is likely to encourage or incite to crime or lead to disorder or to be offensive to public feeling". This has been replaced by section 3(2)(e) of the Communications Act 2003, which places the duty on OFCOM to secure the application by all television and radio stations of standards that provide adequate protection to members of the public from the inclusion of "offensive and harmful material". By section 3(4)(g), they are required to have regard to the need to do this in the manner that best guarantees an appropriate level of freedom of expression. Section 319 of the 2003 Act obliges OFCOM to set such standards for the content of programmes as appear to them best calculated to secure standard objectives. These objectives include, at section 319(2)(f), that generally accepted standards are applied to the content of broadcast programmes to provide adequate protection for members of the public from the inclusion in such programmes of offensive and harmful material. OFCOM is obliged by the Broadcasting Act 1996 and the 2003 Act to draw up a Code for television and radio covering, among other things, standards in programmes. This is known as the Broadcasting Code, which states explicitly that it has been drafted in particular in the light of the right to freedom of expression as expressed in Article 10 of the European Convention on Human Rights, which encompasses the audiences' right to receive creative material, information and ideas without interference, but subject to restrictions prescribed by law and necessary in a democratic society.

Paragraph 2.1 of the Code provides that generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive materials. Paragraph 2.3 provides that, in applying generally accepted standards, broadcasters must ensure that material which may cause offence is justified by the context. Such material may include, among other material, offensive language.


and yet quite astonishingly the first principles of defence were not used

Mr Anderson QC, for OFCOM, says that they are highly conscious that restrictions on freedom of expression, however slight or marginal, need to be justified. But the interference in the present case was an entirely proper application of the relevant statutory framework and Code (which are not themselves challenged) taken with Article 10 of the European Convention on Human Rights. He submits that OFCOM's Amended Finding explicitly recognises the freedom of broadcasters to choose the manner in which they broadcast; the need to apply standards which best guarantee an appropriate level of freedom of expression; the fact that broadcasting offensive material is not in itself a breach of the Code; and the fact that broadcasting offensive material needs to be justified by the context.

That is, you do not accept that what Ofcom have in place and the way they apply it is legal. You challenge every stream. It's like the road traffic cop stopping you for speeding using a hand held device. You don't accept guilt even though you might have been exceeding the limit. You challenge his authority, is it up to date, his training on using the device, the calibration certificate, is it up to date, the appropriate use of the device, aim, location, other external influences etc, the record taken, was the previous speed record stored correctly/deleted etc. I am aware of one central london local authority who have yet to update the authorisations of their environmental health/licensing officers but yet enforcement is still being carried out albeit that they are acting 'ultra vires'.

Mr Anderson notes that the relevant statutory provisions and the Broadcasting Code are not challenged as not complying with Article 10.

and therefore Ofcom's QC stated

Mr Anderson accepts that the court's approach to proportionality under the Convention goes beyond that traditionally adopted by judicial review in a domestic setting. But this does not mean that the court should place itself in the position of the decision-maker and engage in a merits-based review. The court's task is not simply to substitute its own view for that of OFCOM, but to review OFCOM's decision with an intensity appropriate to all the circumstances of the case.

allowing him to state

Thus considerable weight should be given to OFCOM's expert judgment on what constitutes generally accepted standards on the inclusion of offensive material.

and we all know the outcome.

It is stated elsewhere on this forum that Jon Gaunt is launching a further challenge against this decision.


http://www.bailii.org/ew/cases/EWHC/QB/2010/1756.html

Quote:Thus considerable weight should be given to OFCOM's expert judgment on what constitutes generally accepted standards on the inclusion of offensive material.

Oh yes, OFCOM are such fucking 'experts'.

Apparently, one must say "clock" instead of "cock"...but it looks like OFCOM forgot to tell James May.

One can hear "nigger" used frequently in TV programmes. Even "mutha fucker" passes for 'acceptable language' these days. But, alas, using words like "nazi" and "fascist pig" are forbidden words the likes of which will cause you to lose your job.

'Experts' my arse. Incompetent, prejudiced pricks just about sums up the 7 (count them!!) members of the almighty OFCOM Content Board.

It astonishes me that in this day and age broadcasters dont do even basic homework for their defence. They must know they need to quote chapter and verse to put a biassed adjudcator on the spot.

Ofcom's latest Bulletin had a go at BangBabes again. In their defence Bang said their shows were in line with unpublished previous Ofcom guidance, but failed to substantiate that.

The same Bulletin found against several Sport shows - perhaps indicating a new playmate for the regulator. Sport clearly supplied recordings andwere asked to comment on the complaints. Sport did not reply.

Sometimes it is really difficult to sympathise.

(08-09-2010 02:48 )hagman1989 Wrote:  bring them back

i demand you bangbabes

Alas they are forbidden from making shows like these by the mighty OFCOM Content Board.

According to OFCOM Bullshitting 151, there's too much scope for exceeding the "vast majority of the audience's expectations". There's also too much "anal and labial detail". There's just too much hot sex action for the average BangBabes audience...after all, one member of the 'audience' supposedly complained that the stuff on screen was way beyond what they'd like to see on this channel.

In our poll though, almost 50% of 200 Babe Channels Forum users said their expectations were never met, let alone, 'exceeded'. OFCOM are clearly liars or fantasists. They're also hypocrits, offerring dodgy 'guidance' and refuting common understanding of what "you cannot show this before 10pm" means to every English speaking person on this Earth. When I see a notice saying "No parking before 9am" I don't assume it means "No parking at anytime". OFCOM however do...especially if it means they can rack-up £150,000 in fines during these troubled financial times. I suppose OFCOM have to justify their £147Million hole in the taxpayer's bucket each year...and I guess this type of crooked 'regulating' fits the bill nicely (at least for them in No. 11 Downing St.)...

Ofcoms procedures are a flagrant breech of the European Convention on Human Rights, and thus breaking the Human Rights Act 1998 that incorporated it.

Old news? No, I'm not talking about Freedom of Speech, but Article 6 that says "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal".

Complaints are heard by the Content Committee who can hardly be described as "impartial" for multiple reasons.
They would have...
1. drafted the Broadcasting Code
2. been involved in scoping arguably flawed and biassed public attitude surveys
3. and interpreting/accepting the results
4. drafting and/or approving Guidance on the Broadcasting Code
5. managing the compliance and monitoring staff who identify alleged breeches and refer them to the Content Committee
6. are employed by the same organisation that defines the rules and identifies alleged breeches
7. hear appeals

Its like living in a small town in Eastern Europe where Herr Mayor passes a law that disadvantages your business, his brother is the policeman who arrests you, the Mayors cousin is the Town Prosecutor, the Mayor is the Judge and policeman who arrested you is the Jury. And the policeman is on performance-related pay as decided by the Mayor.

Not impartial.

Not independent.

(17-09-2010 22:27 )eccles Wrote:  Ofcoms procedures are a flagrant breech of the European Convention on Human Rights, and thus breaking the Human Rights Act 1998 that incorporated it.

Old news? No, I'm not talking about Freedom of Speech, but Article 6 that says "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal".

Complaints are heard by the Content Committee who can hardly be described as "impartial" for multiple reasons.
They would have...
1. drafted the Broadcasting Code
2. been involved in scoping arguably flawed and biassed public attitude surveys
3. and interpreting/accepting the results
4. drafting and/or approving Guidance on the Broadcasting Code
5. managing the compliance and monitoring staff who identify alleged breeches and refer them to the Content Committee
6. are employed by the same organisation that defines the rules and identifies alleged breeches
7. hear appeals

Its like living in a small town in Eastern Europe where Herr Mayor passes a law that disadvantages your business, his brother is the policeman who arrests you, the Mayors cousin is the Town Prosecutor, the Mayor is the Judge and policeman who arrested you is the Jury. And the policeman is on performance-related pay as decided by the Mayor.

Not impartial.

Not independent.

And imposing sanctions/financial penalties in accordance with their enforcement code.

or not as the case may be against Bang Media,

The Committee noted that the total amount payable by the Licensees represented over 5% of the Licensees‟ aggregate annual revenue and was therefore a significant penalty for the Licensees. However, in view of the seriousness of the breaches found, the repeated nature of the breaches and the need to ensure that any penalty imposed acted as a sufficient incentive to comply the Committee considered that this was an appropriate level.

I believe their guidelines on financial penalties says up to 5% so why exceed that amount on a small operator if your ultimate sanction is not to put them out of business.

I can never understand the licence condition that requires all broadcasters to retain recording for 60 days thereafter. This is not only onerous, burdensome and expensive to comply with but is nearly double that required by other authorities like the Metropolitan Police etc under the Licensing Act where they ask for 31 days with their justification being crime and disorder and under age sales in licensed premises.

If someone took 60 days to make a complaint then any reasonable authority would throw it out and if it takes an authority this length of time to investigate a complaint then their enforcement protocols need reviewing.

GPP, I think there's a common misconception that the complaints proceedure exists to allow OFCOM to fine channels for breaches of their Code. It doesn't. The complaints proceedure is in fact supposed to allow the Right of Reply - i.e. for allegations and/or incorrect claims made about a person or company by a broadcaster to be challenged by that aggrieved/offended party.

Not all countries in the EU have the same defamation/libel laws as the UK (which you may be aware are being challenged and are likely to be changed (if not scrapped entirely) in the hopefully not too distant future). The Right of Reply, as required by the TWF Directive, is for such rectification of what are essentially false and/or libelous comments. Folks may recall that while the ITC were in charge of TV regulation that broadcasters would sometimes make public apologies for comments deemed incorrect and/or to clarify to whom their allegations were directed if another person/company felt they were being unfairly/incorrectly implicated.

What OFCOM have done with the Right of Reply is contemptuous and probably illegal.

I know for a fact that banning R18-type material goes against ECHR Case Law. Indeed, banning the broadcast of any legally available material is quite clearly a breach of Article 10 of the HRA 1998. OFCOM are law-breakers, pure and simple. It matters not what OFCOM believe the Comms Act allows them to do. OFCOM are a public body and as such they are bound first and foremost to abide by the HRA 1998 and the TWF Directive. The Comms Act simply states what they can then do within the bounds set by these pre-existing and over-arching laws granting and enshrining OUR rights and freedoms.

So, the 60 day retention of broadcasts is for the benefit of aggrieved members of the public/companies who wish to complain about defamatory statements made by the broadcaster (e.g. the 'Nazi' Councillor Jon Gaunt dissed on air). In fact, this is exactly the type of case the Right of Reply is designed to cater for, NOT the fining of channels months after some deranged religious tosser thought they saw naked girls on-screen when in actuality the girls were wearing flesh coloured knickers under their white thongs...

OFCOM are clearly twisted, mindless fuckwits. Their Code will not stand up to scrutiny under the HRA 1998. Unfortunately, it seems no fucker in this land is willing to charge OFCOM with Human Rights abuses and have their Code subjected to a Judicial Review against the terms of the HRA 1998 or, indeed, the European Citizen's Bill of Rights in the Lisbon Treaty.

As I've said before, if the TWF Directive can be seen/argued to grant the right to broadcasters to broadcast harmless R18-type material (as openly admitted by OFCOM) then OFCOM are in blatant breach of EC Law which, ensures any Rights granted by EC Directives take absolute precedence over all and any domestic legislation (and any pisspot 'Standards Codes' produced by backward ignorant fascist fucks interpreting such piss poor legislation as is the Comms Act 2003).

(20-09-2010 22:51 )IanG Wrote:  Unfortunately, it seems no fucker in this land is willing to charge OFCOM with Human Rights abuses and have their Code subjected to a Judicial Review

Trouble used to be that one of the largest players was a major operator of sex-shops and another was a major publisher of porn mags. Making R18 films available all night every night would have cost their sex shop and magazine businesses a fortune.

When Ofcom first consulted on their new Broadcast Code, including whether R18 should be shown on TV, one of the groups OPPOSING allowing it was the sex shop owners trade body, the AITA (see Ofcom Statement and AITA Letter)

That's right, the sex shop industry campaigned against it.

In broadcasting generally there is a clear recognition that if the same media organisation has both TV and print businesses there can be a conflict of interest between the two and there are restrictive rules about media cross-ownership. Doesnt seem to apply in this case - perhaps it should, perhaps sex shop owners and porn publishers should be banned from running TV channels. Theres seems to be a lack of fight among the big boys, and the smaller operators have been cowed into submission.