Friday, September 23, 2011

Freeview HD DRM FoI update

Apologies to those of you following the BBC/Freeview HD DRM saga for not posting more updates on the succession of communications I've had with the BBC, ITV, Channel 4, Ofcom, the British Library, the BFI and others.  I'm not finding much time in the average week for blogging at the moment.

The latest exchanges have been this afternoon, relating to legal advice the BBC received on the competition issues - they have refused to disclose this - and a meeting that took place between the broadcasters, the rights holders and Ofcom on 10 March 2010 at Freeview's offices. Ofcom has no record of who attended this meeting.

The BBC has justified its refusal to release details of the legal advice they got on the HD DRM competition issues citing section 42 of the Freedom of Information Act. (Section 42 combined with section 2(2)(b) refusal). Section 42 is a qualified exemption for legal advice. Section 2(2)(b) is

"in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information."

Their response is understandable but I've asked for an internal review and requested associated information citing the authority of the Three Rivers House of Lords case from 2004.    For the uninitiated,

Three Rivers District Council and others (Respondents) v. Governor and Company of the Bank of England (Appellants) [2004] UKHL 48 on appeal from:[2002] EWHC 2730

suggested privilege does not cover all situations where legal advice relates to business matters. Additionally the court suggested that copies of, or discussion about such legal advice may not be privileged if such copies/discussions are for non privileged purposes.

Ofcom's lack of institutional records on a key meeting between themselves, broadcasters and rights holders on the HD DRM issue is perhaps a little surprising. Or perhaps not.