Friday, May 20, 2011

BBC HD DRM timeline

I've done a rough timeline on Open University academics' open letters and freedom of information requests relating to Ofcom's consultation and decision on the BBC/Freeview HD signal DRM.

25 March 2010

Open letter to Ofcom objecting to HD signal DRM proposal signed by 50 OU academics

Also sent as formal response to the Ofcom consultation.  (My esteemed colleague Blaine Price sent the submission and Ofcom filed it, as an individual rather than a group response to the consultation).

21 May 2010

OU academics Open letter to Michael Lyons, the Chairman of the BBC Trust

Published by OpenDemocracy 30 May 2010

We received an acknowledgement of this letter from Mr Lyons’ personal assistant, June Prunty, (on 27 May 2010) but we never received a substantive response from Mr Lyons himself.

14 June 2010

Ofcom approve BBC/freeview HD DRM

The heart of the decision was in paragraphs 1.5 and 1.6 where they admitted to being persuaded by “confidential” i.e. secret information provided by BBC, ITV and Channel 4, as well as the story spun by rights holders.

There are many examples of confused thinking in the document, though, and their perspective on copyright law in 5.31 and 5.36 and the, shall we say, counterintuitive logical leaps made from that perspective, plus the reference to "fair usage rights" (lack of precision at best, ignorance of the law at worst) suggests a shaping of the decision by the content industry; (and the, 'if you only knew what I knew', secret details of secret meetings/negotiations held between the broadcasters and content industry).

26 August 2010

We sent a freedom of information request for the “confidential” information supplied by broadcasters to the Ofcom consultation via the whatdotheyknow website

This link contains copies of subsequent exchanges of communications with Ofcom right up to and including their most recent declaration on 7th February 2011, in response to our request for an internal review of their decision, that they were withholding the key information.

27 September 2010

Ofcom’s initial response to the FOI request. (Firefox 4.0.1 seems to be having problems displaying this properly but it reads fine in Chrome)

The initial excuses for withholding the key confidential arguments that the BBC, ITV and Channel 4 used to convince Ofcom to permit DRM on the HD Freeview signal were sections 41 and 44 of the Freedom of Information Act and section 393(1) of the Communcations Act 2003; and that there is no public interest test to compel disclosure of that information under sections 41 and 44.  Ofcom’s letter dated 27 September 2010 said:

"This information you requested is being withheld as it falls under the following exemptions:

·            Section 41 of the Act, relating to information provided in confidence. Section 41 is an absolute exemption under the Act and does not require a public interest test.
·            Section 44 of the Act. Under this section information which we hold on this subject is exempt from disclosure since it was shared with us under our regulatory power and disclosure is prohibited under section 393(1) of the Communications Act (CA) 2003.  Section 44 is an absolute exemption under the Act and does not require a public interest test."

28 September 2010

Follow up request to Ofcom for withheld information

At this point we get into somewhat tedious regulatory alphanumeric soup.

We explained in this note that the courts have recognised that there is a public interest test in relation to Section 41 exemptions, despite Ofcom’s advice to the contrary. (This is explicit in paragraph 2.3 of the statute’s full exemptions guidance on how s41 should be interpreted

It is our 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. So a s41 refusal raises the possibilty that Ofcom are concerned about legal action by the BBC, Channel 4 and ITV if they were to disclose this information; and also the risk that a judge would rule that keeping the information secret was in the public interest, a pretty difficult argument to make I would have thought.  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 their decision to approve Freeview HD DRM in June 2010), how can the public possibly be harmed by having access to and understanding these arguments; and the detailed efforts the broadcasters are making on our behalf.

S44 of the FOIA + S393(1) of the Communications Act seem to indicate Ofcom is prohibited from disclosing information obtained about a business. But section 393(2) says this (i.e.section 393(1)) does not apply to any disclosure of information which is made “for the purpose of facilitating the carrying out by OFCOM of any of their functions”.

Additionally section 393(6) of the Act says section 393 cannot be used to limit matters included in an Ofcom report and, in particular, matters related to Ofcom's duty to publish and take account of research and to Ofcom's publication of information and advice for consumers; both of which arguably relate to the Freeview DRM decision.

Stasis until 2 February 2011

At this stage Ofcom effectively went into lockdown with the re-organisation brought upon them by the coalition government cuts. Trying to be sensitive to the traumas associated with such circumstances we decided not to press for further answers until the new year. We sent them a reminder on 2 February 2011 and, in fairness, they then responded within a week.

7 February 2011

Ofcom’s final response withholding the key information.

They ignore our section 41 FOIA arguments and reject our section 393 CA arguments. They add that disclosing information in breach of section 393(1) “may constitute a criminal offence”.

Sections 393(4) and (5) give lists of “functions”, “enactments and instruments” relevant to section 393. The Freedom of Information Act is not included in these lists. This enables Ofcom to deduce, bizarrely if logically, that (and I quote):

“disclosure under FOIA is not a function for which Ofcom can disclose information”  

Hilarity ensues.

They also advise us to take it up with the Information Commissioners Office if we’re still not happy.  It is fair to say we are not happy, even if the their final conclusion, taken in isolation, is rather amusing.

In brief –

Open letters to Ofcom and BBC Trust Chairman (March – May 2010)

Ofcom approve HD lockdown (June 2010)

FoI ping pong (Aug 2010 – Feb 2011) –

Us: We’d like to see the secret BBC, ITV and Channel 4 information that convinced Ofcom to lock down HD Freeview with DRM please.

Ofcom: No. S41 & s 44 of the FOIA and s393(1) of the Communications Act say we don’t have to disclose this, even if it’s in the public interest to do so.

Us: Er courts and statutory guidance say s41 doesn’t have an absolute public interest exemption; and s393(2) of the Communications Act says you can’t use s393(1) as an excuse for withholding information if you’re fulfilling your public interest obligations by doing so.
So we’d like to see the secret BBC, ITV and Channel 4 information please, especially since you mentioned how keen they were to protect the public interest with their submissions.

Ofcom: No. S41 is complicated so let’s ignore that (implicit not explicit). WARNING – it may be a CRIME to tell you what you want to know. S44 FoIA provides a great excuse not to tell you anything because “Section 44 is an absolute exemption under the FoIA and does not require a public interest test” Anyway we see your s393(2) Communications Act loophole and raise you a s393(4)&(5) slam dunk. And (with a very straight face can say) therefore “disclosure under FOIA is not a function for which Ofcom can disclose information.”  

Now I realise the "In brief" summary of the FoI communications with Ofcom is a little colourful and I certainly wouldn't want to impugn the motives of dedicated public servants in Ofcom who are doing a tough job in straitened circumstances.  I would like to know, however, what happened within Ofcom in late 2009 to make them change their long standing opposition to BBC/Freeview DRM, to the extent that they then quickly launched a public consultation about how brilliant DRM was. Also, if the secret arguments of the BBC, Channel 4 and ITV are so compelling as to be a primary factor in convincing Ofcom that DRM is in the public interest, why can't the public have access to these documents? 

If you're interested in a little more detail on the saga, my blogpost reactions as it unfolded are here. We haven't decided yet whether to take the matter up with the Information Commissioner.

Update: Apparently there was a problem with the hyperlinks in this post.  Hopefully that is now fixed.

Monday, May 16, 2011

Arsenal 1 - Aston Villa 2

My younger son and I went to Arsenal's final home match of the season yesterday, only to witness them losing miserably to Aston Villa. It's hard to believe that 3 weeks ago they were still in with a chance of winning the league.  There were no tickets available for the Villa match at that stage.  Then we lost to Bolton, killed off any hope of leading the final standings and a number of ticket holders made their tickets available for sale on the Arsenal ticket exchange.

Yesterday, Arsenal looked more like exhausted relegation candidates than title contenders.  After 5 minutes Villa had had three attacks and Darren Bent had been left in acres of space on each occasion.  By 11 minutes Bent had had the freedom of the Arsenal box on 5 occasions only this time Kyle Walker decided to give him the ball which he duly despatched into the net. 0-1 Villa. 4 minutes later, roaming free for the 6th time Bent was given the ball again, this time by Ashley Young, who had figured out that Bent + space + time + clueless defence = goal.  15 minutes in, 0-2 to Villa.

Thereafter Villa retired into their own half and didn't see much of the ball except as it got passed around them, and occasionally directly to them, by a group of Arsenal players who were jogging around in slow motion, looking in most cases as if it was all too much like hard work and they didn't want to be there.  With the notable exceptions of Robin Van Persie and Jack Wilshere the rest of this erstwhile honours chasing squad were woeful, particularly in the first half.  Early on Villa had been playing a pressing game high up the pitch - really dangerous against pacy attackers like Walcott but they needn't have worried as the Arsenal speed merchant had left his accelerator at home. This is a moot point anyway since no one even attempted to give him a ball over the top to run onto.

After the break some Arsenal players upped their pace from a deliriously slow walk to a hesitant jog though mostly they seemed to be standing around hoping the ball would be passed to someone else, almost all completely devoid of energy.

In fairness whatever the manager said at half time Song partly awoke from his slumbers and Gibbs, who had been exposed defensively, along with the rest of the back four, in the first half, injected a modicum of entropy and heat into his performance going forward.  Ironically Song did more attacking once he had been moved to centre half (at half time Chamakh had come on for Squillaci, with Song moving to the back and Van Persie into the middle).  This was partly because Villa had given up attempting to get the ball or to get into the Arsenal half of the field though Young and Downing made two or three forays forward, getting a couple of shots in on Szczesny.

Darren Bent was looking an increasingly frustrated lone figure up front, as even on the few occasions his team did venture forward they didn't give him the ball in spite of the continuing lack of attention he was receiving in the vast open wilderness he continued to occupy on the Emirates pitch. Clearly they'd forgotten the Bent + space + clueless defence = goal formula. Honestly if Arsenal had a natural goal scorer like Bent in the team along with a fit Van Persie for a full season (which, remember, has never happened), scoring at the rate of 20 goals every 21 games as he had done, we could almost get away with the other structural weaknesses in the side. (And I say that as someone who has never been a big Van Persie fan)

Part way through the second half the stadium announcer declared the attendance for the day to be 60k+ and that the team would be doing 'a lap of appreciation' at the end. This was met with boos and a sarcastic chant from the crowd, "You're havin' a laugh, 6%, you're havin' a laugh, 6%" presumably in "appreciation" of the board's decision to hike the ticket prices by 6.5% for next year.

Diehard supporters will point to the two disallowed Arsenal goals, the stonewall penalty the ref inexplicably missed in the first half (Ramsey through on goal, poleaxed by Dunne on the edge of the six yard box), the inescapable red card that would have accompanied that penalty. And, you know, they're right.  On another day those things would have gone Arsenal's way, we could have comfortably taken the points with a three or four goal margin and we could have papered over the cracks of a tired, washed out performance. The only energy most players showed was in threatening to pick fights and complaining to the ref about Villa's time wasting tactics, as Villa laughed behind their sleeves at the extra time the Arsenal guys were wasting, squaring up to them and arguing with the ref!

People began leaving the ground about 10 minutes from the end, so they missed Van Persie's consolation goal 90 seconds from the end of normal time.  Most of those remaining left on the final whistle, declining to hang around for the lap of appreciation.  It's been a poor end to a promising season and sad to see some of the remaining fans booing the squad as they came round the pitch, largely unenthusiastically. In this regard Van Persie should be picked out again - he brought his two kids with him and got them to wave to the crowd too.

Players and managers are real people too though with their huge salaries and lives in bubbles they don't see the world through the same lens as the rest of us and we sometimes forget that. They're disappointed to have come so close but missed out on multiple medals in the past couple of months and that disappointment shows in their game and demeanour. Arsene Wenger also looked tired and depressed traipsing round the pitch with the rest of them.  Hopefully they can close the season on a positive note next week and, whatever the summer brings in terms of changes, get a decent restful break, enabling them to approach the new season with some renewed energy, passion, vigour and confidence.

To the disappointed and even angry supporters, fuming at the lack of another season without silverware it's worth remembering that, next to Man U., Arsenal have been the most consistent side in the Premier League for 15 years.  That kind of longevity in football deserves respect and there are 90 other clubs and sets of supporters in the top four divisions of english football and many more from around the world who would love to be in the Gunners' situation. So whilst decrying the lack of success and the insipid frustrating performances like that against Aston Villa, we should pause too and appreciate what we've got.  So thanks to Arsene Wenger and the players and backroom staff at Arsenal for another season of ups and downs. Have a good break and good luck with preparations for next year.