Tuesday, September 28, 2010

Follow up to Ofcom on BBC DRM

I've sent a follow up note to Ofcom asking them to reconsider disclosing the key information they have withheld when responding to my freedom of information request on the BBC HD DRM decision. I've suggested the claimed exemptions under sections 41 and 44 of the Freedom of Information Act and section 393(1) of the Communications Act don't apply and that they have an obligation to disclose.  I was tempted but refrained from reminding them that the Communications Act 2003, Part 1, section 3, outlines the General duties of OFCOM as follows:

(1) It shall be the principal duty of OFCOM, in carrying out their functions—
(a) to further the interests of citizens in relation to communications matters; and
(b) to further the interests of consumers in relevant markets, where appropriate by promoting competition.

And that they appear to be failing in these duties when it comes to the BBC HD DRM decision.

Copy of my follow up note below.

To: Julia Fraser
Subject: Re: Your Ofcom enquiry
Dear Ms Fraser,

Freedom of Information: Right to know request 1-155429914

Thank you for your response to my freedom on information request
relating to the Ofcom consultation 'Content Management on the HD
Freeview platform' and in particular the full response to section
(b) and partial information supplied in connection with sections
(c) and (d) of my request.

You have, however, withheld key information relating to sections
(a) and similarly in relation to sections (c) and (d) of my
request, suggesting it falls under exemptions provided by Section
41 and Section 44 of the Freedom of Information Act and Section
393(1) of the Communications Act 2003.

In relation to Section 41, you will be aware and s2.3 of the full
exemptions guidance on how s41 should be interpreted says:

"2.3 This exemption only applies if a breach of confidence would be
"actionable". A breach of confidence will only be "actionable" if a
person could bring an action and be successful. The courts have
recognised that a person will not succeed in an action for breach
of confidence if the public interest in disclosure outweighs the
public interest in keeping the confidence."

So the courts have recognised that there is a public interest test
in relation to Section 41 exemptions, despite your advice to the
contrary. It is my contention that the disclosure of the arguments
of the BBC, Channel 4 and ITV in favour of DRM would be in the
public interest and would significantly outweigh the interest in
keeping the confidence. After all, if the confidential claims are
in the public interest and so compelling as to be a key factor in
Ofcom's decision to approve HD DRM, (as stated by Ofcom in your
decision to approve Freeview HD DRM in June 2010) how can the
public be harmed by having access to and understanding these
arguments; and the detailed efforts the broadcasters are making on
our behalf?

On the question of your claim of exemption from disclosure under
Section 44 of the Act, as I understand it, you are claiming the
protection of s41(1)(a) i.e. prohibition from disclosure under an
existing Act, the Communications Act 2003, and specifically Section
393(1) of the latter Act. Section 393(1) does indeed appear to
prevent the disclosure of information obtained about a business.
However, Section 393(2)(a) of the Communications Act 2003 says:

"(2) Subsection (1) does not apply to any disclosure of information
which is made—

(a) for the purpose of facilitating the carrying out by OFCOM of
any of their functions;"

So s393(1) does not apply to Ofcom in carrying out its functions.
In addition Section 393(6) of the Communications Act 2003 says

"6) Nothing in this section—

(a) limits the matters that may be published under section 15, 26
or 390;

(b) limits the matters that may be included in, or made public as
part of, a report made by OFCOM by virtue of a provision of this
Act or the Office of Communications Act 2002 (c. 11);

(c) prevents the disclosure of anything for the purposes of a
report of legal proceedings in which it has been publicly

(d) applies to information that has been published or made public
as mentioned in paragraphs (a) to (c)."

So Section 393 cannot be used to limit matters included in an Ofcom
report. As a matter of interest, section 15 relates to Ofcom's duty
to publish and take account of research; Section 26 relates to
Ofcom's publication of information and advice for consumers; both
of which arguably relate to the Freeview DRM decision.

In relation to the information supplied, I fully understand and
support your decision to redact some of the information therein
based on Section 40 of the Act which relates to personal

So thank you for the information you have supplied but I would ask
you to reconsider disclosing the information you have withheld
relating to sections (a), (b) and (c) of my original freedom of
information request. Given the balance of public interest test
required under section 41 of the Freedom of Information Act and the
claimed exemption under Section 44 being negated in particular by
section 393(2) of the Communications Act 2003, I would respectfully
suggest Ofcom has an obligation to disclose this information.

So just to be clear on the request, I have repeated the original
(a), (c) and (d) requests below:

(a) A full copy, including the redacted sections noted on page 1
and 7, of the 'BBC response to Ofcom consultation of 22 January

(c) Details supplied by Channel 4, not part of its formal response
to the consultation
relating to specific content which, in its view, may be at risk in
the future if content management is not introduced and also those
titles which it believes are currently sensitive.

Note specifically in relation to (c): I would request the withheld
attachment to the email correspondence from Channel 4 to Ofcom.

(d) A full copy of ITV communications with Ofcom relating to
'Content management on the HD Freeview platform'.

Note specifically in relation to (d): I would request the withheld
attachment to the email correspondence from ITV Plc to Ofcom.

Thank you for your time and attention and I look forward to hearing
from you further on this matter.

Yours sincerely,

Ray Corrigan

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