Media watchdogs must unite to combat legal threat to rulings

What is the collective noun for media watchdogs? A gaggle, perhaps? (Not that they do gag much these days – merely rapping people over the knuckles, weeks after the event, if at all.)

Whatever the right term is, there was a positive horde of them last week, assembled on the moral high ground (the first floor of the Grosvenor House), at the invitation of the chairman of the Advertising Standards Authority, Lord Rodgers of Quarry Bank.

The crème de la crème of “mediadjudication” was there: Lady Howe, chairman of the Broadcasting Standards Commission; Andreas Whittam-Smith, president of the British Board of Film Classification; Professor Bob Pinker, the privacy commissioner of the Press Complaints Commission; Frank Willis, director of advertising at the Independent Television Commission; plus ASA council members and staff, the heads of various trade associations and other deep thinkers.

They were there to discuss an issue of pressing importance.

Not, sadly, how to stop ITV butchering sensitive films like last Saturday’s The Age of Innocence with Toyota’s crassly intrusive bumper breaks. Neither the ITC nor the BBFC have the power to do that.

Nor even, unfortunately, how to stop The Daily Telegraph devoting its main front-page headline, on the day of the Ireland election results, to an England World Cup victory that didn’t even get the side as far as the quarter finals. The PCC has no say over dumbing down.

The subject of the ASA’s high-powered seminar was the imminent incorporation of the European Convention on Human Rights into British law, and the impact this could have on media regulation. The Convention’s two key sections are Article 8, which gives people the right to privacy, and the counter-balancing Article 10, which establishes the right to freedom of expression.

Until now, the media’s greatest fear has been over Article 8, namely, that the Human Rights Bill could lead to “a privacy law by the back door”. The self-regulatory PCC could find its rulings open to challenge in the courts, while publishers might be faced with cases of “prior restraint'”, as companies and individuals seek gagging injunctions.

Last week, after a lengthy campaign by newspapers and the PCC chairman Lord Wakeham, the Government introduced an amendment aimed at safeguarding press freedom.

But the ASA and other media bodies have a different worry – over Article 10. Their codes, by definition, curb freedom of expression. This is done with the best of intentions, to protect the public from irresponsible, offensive or misleading advertising, or breaches of taste and decency, intrusive filming or reporting, or untrue or inaccurate statements.

The problem is it will now be possible for advertisers and others to challenge such decisions in the courts, on the grounds that their freedom of expression has been infringed. If they were to object to, say, an ASA or Broadcasting Advertising Clearance Centre decision, or a BBFC refusal to grant a cinema or video certificate, it would be for a judge to decide whether the restriction was legitimate or necessary.

The ASA believes, in theory, practically every decision it takes could be challenged under Article 10.

Take, say, the launch of a new album by the Spice Girls, with a risqué advertising campaign. Suppose the media owners ask the ASA for its advice before carrying the ads and the ASA turns them down.

The record company might be able to sue the media owner and/or the ASA for loss of earnings, since the launch would have been disrupted.

The ASA’s worry is that media owners might start ignoring its rulings, for fear of laying themselves open to legal challenge by advertisers. This is unlikely to happen until a test case has been heard, but the ASA is sufficiently worried to have called its fellow-watchdogs together to discuss the problem.

The PCC is less concerned, because it does not rule on matters of taste and decency and its rulings don’t have the same financial implications as a ban on an advertising campaign.

But the BBFC is in the same boat as the ASA, because – pre-vetting all films and videos – it can bring financial disaster on a film and its producers. Until recently, it did not even have a widely published code of practice to help people understand its decisions.

The ITC and the Radio Authority no longer pre-vet programmes or advertisements, leaving that to the broadcasters and their agents, but if these companies turn down an item because they believe it infringes the ITC or RA codes, they and the watchdogs could find themselves in the courts.

There is a defence, of course. The regulators must be able to prove they have acted in accordance with their own rules and responsibilities, that there is consistency in their rulings, and that any sanctions they impose are not “disproportionate” to the “offence”.

But there may be another danger, caused by the sheer number of media watchdogs, the different ways they operate and conflicting decisions they reach. For example, some make judgments on taste and decency, others don’t. And while the BSC recently upheld viewers’ complaints against a Channel 4 series, which showed people eating a placenta paté, the ITC rejected them.

Might judges compare and contrast the various rulings and modus operandi of the different media bodies in order to determine whether one has acted properly?

If so, the gaggle might be forced to get together more often.

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