BBC, ITV and Channel 4 stance on Freeview HD DRM

Ray Corrigan made this Freedom of Information request to Office of Communications

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by Office of Communications.

Dear Office of Communications,

I would like to make a freedom of information request for full and complete copies of all the BBC, ITV and Channel 4 communications with Ofcom relating to the Ofcom consultation 'Content management on the HD Freeview platform' (Start date: 22 January 2010, End date: 02 April 2010).

In particular could you send me:

(a) A full copy, including the redacted sections noted on page 1 and 7, of the 'BBC response to Ofcom consultation of 22 January 2010'
http://stakeholders.ofcom.org.uk/binarie...

(b) A copy of the BBC submission to Ofcom of 8 December 2009 on this same matter

(c) Details supplied by Channel 4, not part of its formal response to the consultation,
http://stakeholders.ofcom.org.uk/binarie...,
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.

(d) A full copy of ITV communications with Ofcom relating to 'Content management on the HD Freeview platform'. ITV's submission is not obviously available on Ofcom's webpage relating to the consultation at http://stakeholders.ofcom.org.uk/consult...

Thank you.

Yours faithfully,

Ray Corrigan

Francis Irving left an annotation ()

Dear Office of Communications,

On the 26th of August I made a freedom of information request for full and complete copies of all the BBC, ITV and Channel 4 communications with Ofcom relating to the Ofcom consultation 'Content management on the HD Freeview platform'.

I understand by law that I should have received a response promptly or at the latest within 20 working days, which in this case would have been the 24th September.

I'm contacting you as a reminder today that I have not yet received a response to my request.

Yours faithfully,

Ray Corrigan

Julia Fraser, Office of Communications

3 Attachments

Dear Mr Corrigan,

Pease find attached letter and two additional files, in response to your
enquiry of 26 August.

Yours sincerely,

Julia Fraser

:: Julia Fraser

Head of Knowledge Centre
020 7981 3751 T

020 7981 3406 F

[1][email address]

:: Ofcom

Riverside House
2a Southwark Bridge Road
London SE1 9HA

020 7981 3000
[2]www.ofcom.org.uk

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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 disclosed;

(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 information.

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 2010 http://stakeholders.ofcom.org.uk/binarie...

(c) Details supplied by Channel 4, not part of its formal response to the consultation http://stakeholders.ofcom.org.uk/binarie... 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

Mauzima Bhamji, Office of Communications

Dear Mr Corrigan

Freedom of Information: Internal review

Thank you for your email dated 28 September (see below) to Ofcom asking for a review of our decision in relation to your request for information.

The review will be conducted under the supervision of the Secretary to the Corporation. While there is no statutory deadline for completing internal reviews, we aim to respond within 20 working days. Please contact me at [Ofcom request email] if you have any queries, remembering to quote the reference number 1-155429914.

Yours sincerely

Mauzima Bhamji

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Information Requests, Office of Communications

Dear Mr Corrigan

Freedom of Information: Internal review (Content management on the HD
Freeview platform)

Thank you for your email dated 28 September to Ofcom asking for a review
of Ofcom's decision in relation to your request for information.

On 29 September I wrote to you stating that the "review will be conducted
under the supervision of the Secretary to the Corporation. While there is
no statutory deadline for completing internal reviews, we aim to respond
within 20 working days".

We are currently undertaking the review of our decision that you
requested. As we do not have all the information in order to make a
decision, Ofcom is still not in a position to reply to your request for a
review. It is therefore necessary to extend the date for responding to
you. I hope to be in a position to respond to you by 23 November 2010.

Yours sincerely

Mauzima Bhamji

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Dear Ms Bhamji,

Freedom of Information: Right to know request 1-155429914

I'm writing to check on the status of the Ofcom internal review of my freedom of information request relating to content management on the HD Freeview platform. Your note of 28 October 2010 suggested you hoped to be in a position to respond on the issue by 23 November 2010.

I do understand that Ofcom staff are under considerable pressure at the moment and don't wish to add unnecessarily to that but your early attention to this overdue response would be appreciated.

Yours sincerely,

Ray Corrigan

Graham Howell, Office of Communications

1 Attachment

Our reference 1-153521203

February 7th 2011

Mr Ray Corrigan
Via email: [FOI #45799 email]

Dear Mr. Corrigan,

Re: Freedom of Information request

Thank you for your request of 28 September 2010 for Ofcom to carry out an internal review of its decision regarding your original request for information in accordance to the Freedom of Information Act 2000 (the “FoIA”). We apologise for the delay in replying to you, which in a large part is because of an internal re-organisation we have just finished.

Request for Internal Review

In your original request, you asked for the following information:

(a) A full copy, including the redacted sections noted on page 1 and 7, of the 'BBC response to Ofcom consultation of 22 January 2010 http://stakeholders.ofcom.org.uk/binarie...
(b) A full copy, including the redacted sections noted on page 1 and 7, of the BBC response to Ofcom consultation of 22 January 2010
(c) A copy of the BBC submission to Ofcom of 8 December 2009 on this same matter
(d) Details supplied by C4, 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
(e) A full copy of the ITV communications with Ofcom relating to Content management of the HD Freeview platform. ITV’s submission is not obviously available on Ofcom’s webpage relating to the consultation....

In your request for an internal review (the “Requested Information”), you asked Ofcom to review its decision to withhold “key information relating to sections (a) and similarly in relation to sections (c) and (d) of my request”. Specifically:

(a) A full copy, including the redacted sections noted on page 1 and 7, of the 'BBC response to Ofcom consultation of 22 January 2010 http://stakeholders.ofcom.org.uk/binarie...

(c) Details supplied by Channel 4, not part of its formal response to the consultation http://stakeholders.ofcom.org.uk/binarie... 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.

Your email of 28 September 2010, questioned the application of s393(2) and s393(6)(a) of the Communications Act 2003 (‘CA03’) to justify the possible disclosure of the information you have requested.

Our response to your internal review request

We have made appropriate and proportionate internal enquiries in response to your request for a review, and considered your case carefully. Looking at each of your requests in turn:

1. Requested Information provided by the British Broadcasting Commission (BBC)

The information you requested is being withheld for the following reasons.

(i) Section 44 FOIA – Prohibition of disclosure

The Requested Information is being withheld under section 44 of FoIA. Under this section, the Requested Information is exempt from disclosure as it falls within the prohibition on disclosure in s.393(1) CA03, as it is information relating to a business which has been obtained by Ofcom in exercise of its powers under that Act. Section 44 is an absolute exemption under the FoIA and does not require a public interest test.

In summary, the Requested Information is information with respect to the BBC that was obtained in exercise of a power conferred by the Broadcasting Act 1996 (‘BA96’) and the CA03; namely, for Ofcom to consider content management issues on the HD Freeview platform as part of its regulatory functions in that area.

Section 393(1) CA03 provides that the Requested Information is not, so long as that business continues to be carried on, to be disclosed without the consent of the person for the time being carrying on that business. The BBC, a going concern, does not consent to the disclosure of the information.

We note that disclosing information in breach of section 393 (1) CA03 may constitute a criminal offence.

Section 393(2)

You raise the possible application of s393(2) CA03, which states that under section 393(2)(a), Ofcom may disclose information where this is for the purpose of carrying out one of its functions or, under section 393(2)(b), for the purpose of enabling that person to carry out their functions.

Sections 393(4) and (5) prescribe the statutory functions that are relevant to section 393(2) We have considered the functions provided for in the instruments set out under s393(4) CA03 and 393(5) CA03 .The FoIA is not prescribed amongst those enactments, nor to our knowledge do any of the orders made by the Secretary of State under section 393(4)(c) CA03 include a reference to the FoIA. As disclosure under FOIA is not a function for which Ofcom can disclose information for under that section, s393(2) CA03 is not relevant in this context.

In any event, and separate from FOI, Ofcom has made a decision as to what information to publish and what information to keep confidential when it published its statement in this area. Please refer to this statement.

S393(6)(a)

Section 393(6)(a) as provides states “nothing in this section limits the matters that may be published under section 15, 26 or 390 of the CA03;

Again, FoIA is not prescribed in s15, 26 or 390 of the CA03. Accordingly, we do not consider that s 393(6) of the Communications Act 2003 applies in this case.

Other reasons for withholding information may apply.

2. Requested Information provided by Channel Four (C4) – letter dated 28 April 2010

The Requested Information is being withheld for the following reasons.

(i) Section 44 – Prohibition of disclosure

The Requested Information is being withheld under section 44 of the FoIA. Channel Four, a going concern, does not consent to the disclosure of the information: consistent with the analysis above (see above, for the reasons set out there we do not consider that s 393(2), s393(6)(a) of the CA03 apply.)

Other reasons for withholding information may apply.

3. Requested Information provided by ITV – dated 1 April 2010 and 30 April 2010

Attached is ITV’s submission dated 1 April 2010, with redactions. The redactions relate to confidential discussions held by ITV with rightsholders. Additional further information provided by ITV relating also to their confidential discussions with rights holders is being withheld for the following reasons.

(i) Section 44 – Prohibition of disclosure

The Requested Information is being withheld under section 44 of the FoIA. ITV, a going concern, does not consent to the disclosure of the information: consistent with the analysis above (see above, for the reasons set out there we do not consider that s 393(2), s393(6)(a) of the CA03 apply.)

Other reasons for withholding information may apply.

Please ensure that when using the provided information in any way, you comply with all relevant legislation. For example, the information provided may be protected by copyright under the Copyright, Designs and Patents Act 1988 (as amended). If in doubt, please seek independent legal advice. For Ofcom’s policy on copyright and related issues, please refer to http://www.ofcom.org.uk/about/accoun/dis...

Yours sincerely

Graham Howell

If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

If you have any queries or would like to discuss this informally then please contact Information Requests (email: [Ofcom request email]). Please remember to quote the reference number above in any future communications.

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