Friday, November 18, 2011

BBC legal advice on HD DRM

The BBC has now responded to my internal review request in relation to disclosing their legal advice on competition issues associated with HD DRM.  The review is very thoughtful and the analysis of the issues clear and enlightening. In summary the response suggests that:
(a) the BBC had no formal structured legal advice on the competition issues relating to introducing DRM on the HD Freeview platform;

(b) the legal advice that was sought was ad hoc and given in email communications on a range of issues over a number of weeks;

(c) the BBC should disclose the draft document (“Draft Submission”) they prepared on some of the competition and copyright legal issues which was intended for submission to Ofcom (but in the end not actually submitted);

(d) the BBC are going to review the relevant document before releasing a redacted copy by the 25th of November (next Friday).

Copy of the review below.



Original Request and the BBC’s Decision 

By a request made on 6 June 2011, the requestor sought copies of all BBC
communications with Ofcom relating to the Ofcom consultation “Content
Management on the HD Freeview Platform”.  A number of documents were
then disclosed by the BBC under cover of a letter from Steve Gutteridge (BBC
Distribution) dated 8 July 2011.

The requestor then raised a series of questions relating to the disclosed
material.  Relevant to this internal review, the requestor asked if the BBC had
sought and/or received “professional legal advice on the competition issues
relating to:

Mandatory DRM removing the ability of consumers to purchase
receivers without DRM and the BBC leveraging its position as
holder of the multiplex licence to mandate DRM thereby affecting
competition at the level of the manufacturers;

Rights holders’ possible collective efforts to pressurise public
service broadcasters into mandating HD DRM?”

In its response dated 25 August 2011, Rachel Ward (Information and
Compliance) confirmed that the BBC “did seek legal advice on our approach
to HD content management”.

Perhaps not surprisingly, the requestor then, on 25 August 2011, requested
disclosure of that legal advice and also copies of BBC documents and/or
briefings summarising that advice.  On 23 September 2011, Mr Gutteridge
wrote to Mr Corrigan informing him that the BBC was withholding this
information on the basis that it was subject to legal professional privilege.  It is
this final decision that I am now asked to review.

Issues Under Review 

Although the requestor has asked that the review focus on the foundation of
one argument relied on by Mr Gutteridge (that legal professional privilege is
perhaps at its strongest where it relates to a public body or quasi-public body),

I do not consider it to be my role to scrutinise specific pieces of reasoning
which led to the decision to withhold information.  My role is to look at the
issue afresh and to decide whether an exemption applies in respect of the
information that is sought.  I therefore summarise the issue that I am to
address simply in the following terms:

Whether the Section 42 (1) exemption (legal privilege exemption) requires
that the information be withheld.

In undertaking this review, I have considered the provisions of the Act and the
guidance issued by the Information Commissioner’s Office and the Ministry of
Justice on the exemption relating to legal professional privilege.  I have also
consulted individuals within the BBC, both in its Legal Division and in BBC
Distribution, who were responsible for advising the BBC on the content
management proposals relating to HD on the DTT platform and for
corresponding with OFCOM on this issue.

I have gathered together a very considerable body of information relating to
the BBC’s proposal for content management on the DTT platform.  In many
instances, one or more internal lawyers were party to internal communications
which fed into the BBC ‘s response to Ofcom’s consultation on HD Content
Management.  However, having spent a very considerable amount of time
gathering this information and reviewing it, it is clear that only occasional input
was sought or offered by lawyers on competition law issues.  It is important to
note, also, that there was no set piece formal legal advice that was provided
and, further, that the legal issues addressed in this advice do not closely
mirror the two issues highlighted by the requestor.

My assessment, therefore, is that legal advice was sought and given in email
communications on an ad hoc basis over a number of weeks on a range of
issues (“the Advice”), only some of which touch on (but do not mirror) the
issues highlighted by the requestor.  In addition to the Advice, a document
was prepared for possible submission to Ofcom outlining some of the
competition and copyright law issues that had been identified. It appears from
my enquiries that this separate legal document (“the Draft Submission”) was
not in the event submitted to Ofcom.

The requestor is seeking the BBC’s internal legal advice and also
documents/briefings which summarise that advice.  I consider that the Advice
corresponds with the first category of documents and that the Draft
Submission corresponds with the second category.

Notwithstanding the requestor’s observation that not all advice given by
lawyers is privileged legal advice (based on the House of Lords decision in
the Three Rivers Litigation), the wording of the request makes it clear in my
view that peripheral advice relating to business issues that may have been
provided by lawyers is not is what is being sought.  The requestor in terms
seeks “professional legal advice” on “competition issues relating to two

specific issues”.  Any presentational and/or commercial advice given by a
lawyer would fall outside the scope of the request.  I am satisfied, therefore,
that the Advice held by the BBC is subject to legal professional privilege.

Section 42 (1) is for qualified exemption and it is therefore necessary to
consider the public interest test.  In this case, apart from furthering the general
public interest in disclosure of information relating to public authorities, it also
possible that the public interest is served by the public understanding the
tenor of legal advice that was received may further the BBC’s accountability in
respect of the its actions.  However, in the absence of a formal, structured
piece of advice on the competition law issues highlighted by the requestor, the
disclosure of the Advice would in fact shed little light. I consider that the public
interest in disclosure is clearly outweighed in respect of the Advice by the
public interest in legal privilege being maintained (recognised by the
Information Tribunal in Bellamy v Information Commissioner as being a strong
public interest).  I see no factor in other words which displaces the public
interest in an organisation being able in confidence to seek and be given
candid legal advice on complex legal issues.

However, slightly different considerations apply to the Draft Submission
because, although this can be seen as addressing some of the same issues
as the Advice, it was prepared with a view to being provided to Ofcom as
representing the BBC’s considered position on the legal issues it addressed. It
was therefore prepared with a view to any legal privilege attaching to it being
waived.  This document can be regarded in my view as a BBC document
and/or briefing which to a degree summarises the legal advice that was
received (albeit, understandably, it does not address the full process by when
the BBC came to form its legal position).  Whilst legal professional privilege
does still apply to this document, it is of a lower order than attaches to the
Advice in respect of which, as I have explained, it is vital that organisations
can seek, receive and consider legal advice candidly and in confidence.  

I also believe that there is some public interest in disclosing the Draft
Submission.  This is because it may aid public understanding of the legal
basis of the BBC’s submission to Ofcom on HD Content Management
because the Draft Submission provides legal analysis of some of the issues
raised by the BBC in its submission.  The disclosure of this document does
not risk in my view revealing the train of thought of the legal advice that was
sought and received and, therefore, does not undermine the confidentiality of
that important and sensitive process.  


I endorse the BBC’s application of the Section 42(1) (legal professional
privilege) exemption so as to withhold the legal professional advice sought
and provided to the BBC on the two issues that the requestor has highlighted.

However, I have concluded that the same does not apply to the final version
of the Draft Submission document that was prepared with a view to it being
provided to Ofcom.  Whilst earlier drafts of that document should not be

disclosed because they may reveal the train of the legal advice that was
sought and given, the final draft can be seen as setting out the BBC’s settled
position for external submission.  My conclusion, therefore, is that the final
draft of the Draft Submission only can be disclosed, redacted to remove any
personal or commercially sensitive data in accordance with the Freedom of
Information Act and redacted so as to remove information that is not relevant
to the request. "

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