Territorial disputes hot up as Ofcom stakes its claims

Tessa Jowell could not have been more emphatic. “There are no plans to regulate the content of newspapers – it couldn’t be clearer – there are no such clauses in the bill,” she told an audience of broadcasting and telecoms executives at last week’s Westminster Media Forum seminar. Not surprisingly – given what she said – there were no newspaper bosses in attendance to hear her assurances. But she laid it on with a trowel anyway.

Speaking alongside Ofcom chairman Lord Currie, she insisted: “The free press will remain free. Whatever our irritations with papers from time to time, we know it is their job, for better or for worse, to be the grit in the oyster. And we will defend to the death their right to be opinionated, controversial and free of Government or regulator control.”

A resounding defence of free speech, particularly given the “irritations” being felt in Downing Street over Cherie Blair’s property purchase. But why did the culture secretary feel the need to stamp so firmly and publicly on a “threat” which most followers of the Ofcom saga had not even noticed until last week?

Jowell was responding to four leading articles in last week’s papers. First The Sun boomed “Hands Off”, declaring that the Communications Bill presented “the alarming spectre of governments being able to influence what papers publish”. The Daily Mirror said the Government was “giving itself a free hand to do whatever it wants and silence anyone who dares to disagree”.

The Daily Mail joined in, and finally The Times, which – on the morning of Jowell’s speech – described the bill’s inclusion of a reference to newspapers as “startling” and “extraordinary”.

What concerned them all was a phrase in the bill giving Ofcom the right to consider whether a newspaper takeover would affect “the accurate presentation of news and free expression of opinion” and whether or not it was in the public interest. Even though Ofcom’s role would merely be an advisory one – since takeover approval would remain in the hands of the Office of Fair Trading and the Competition Commission – the phrase raised hackles among newspaper owners. But why, when the same phrase exists in the current legislation governing newspaper takeovers?

As I understand it, what worries publishers is the potential power of that wording in the hands of Ofcom’s content board. They fear that, under the proactive chairmanship of Radio Authority chairman Richard Hooper, the content board would take the clause more seriously than the OFT and Competition Commission, with no great expertise in “content”, have ever done.

The content board seems likely to emerge as a major force within Ofcom, as pressure grows for greater protection of public service programming, to counter the possible takeovers of ITV and Channel 5 by giant American groups with no experience or culture of public service.

Last week, Ofcom advertised its five top executive posts, holders of which will report to the chief executive (that job is due to be filled by January). One is for a content and consumer protection director, who will “lead the arrangements for Ofcom’s Content Board, ensuring that the interests of viewers, listeners and consumers are effectively taken into account in all of the regulator’s work”. The director will also develop Ofcom policies for protecting consumers.

This could be a very high-profile job and, depending who fills it, could worry newspapers by pronouncing on matters that concern the media generally. For instance, when the Government abandoned plans to make it a criminal offence for newspapers to pay witnesses in court cases, it invited the Press Complaints Commission to draw up a code of practice, in consultation with other regulators. Ofcom’s director of content would have a big say in such a code.

But there is another reason why newspapers are suspicious of Ofcom. In the debate over Ofcom’s role and powers, the advertising business has been pressing the Government to allow broadcast advertising to be increasingly self-regulated. It cites the model of the Advertising Standards Authority (ASA), which handles complaints about ads in the press and other non-broadcast media, and has been applauded by Government. Jowell has given a green light for a move towards self-regulation, if a suitable system can be devised.

I understand the move is being resisted by newspaper publishers, who fear any relationship between the ASA and Ofcom could spill over from advertising matters to editorial.

And it’s not clear that the Independent Television Commission welcomes the idea either. A few weeks ago, I pointed out there had been an unfortunate – some would say unprecedented – divergence of views between the ITC and the Broadcast Advertising Clearance Centre, the self-regulatory body which pre-vets commercials.

Matters have got worse since then. The BACC was ridiculed for banning an advertisement for satirical ITV show 2DTV, because it made fun of President Bush. The BACC said it could only be broadcast with his consent. Next, an ITC spokesman said the ruling might have been a little harsh and was being reconsidered, cutting the ground from under the self-regulatory body.

Mild-mannered BACC director Uisdean Maclean was quoted on the Media Guardian website: “That’s not the answer they gave formally two weeks ago when we asked this question. We asked if we could interpret the code in this instance and the ITC said emphatically no.”

In a case announced this week, the ITC overruled the BACC again – this time over the timing of a Government fire safety campaign.

It seems the battles over just how far Ofcom will control the media are by no means over.

Torin Douglas is media correspondent for BBC News