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Artillery Row

It is time to take back control of our airwaves

There is no reason why broadcasters should not be like newspapers: free to say what they like, within the law

There is a small but memorable incident in Chapter 1 of 1984 about hiding bad news. An announcement of a glorious victory by Oceania is followed, as Winston Smith glumly predicted it would be, by some less welcome information: the chocolate ration is to go down from 30 grammes to 20. For those watching events carefully on New Year’s Day, something similar happened then.

At the very same time that Brexiteers were expressing their relief as they watched Big Ben chime out our departure from the dead hand of the EU, Ofcom very considerably widened the “hate speech” restrictions on what we are allowed to see and hear on radio and TV. Since these changes not only add greatly to censorship but actually emanate from none other than the European Union itself, they should give us pause.

The new rules on so-called hate speech are far wider

To remind you of the position of Ofcom in all this, the position is broadly as follows. Subject to a few exceptions it is illegal to broadcast to the UK public without a licence from Ofcom, one condition of which is that you have to obey its Broadcasting Code. If you don’t you are liable to sanctions, and potentially to lose your licence. So essentially you have to do as Ofcom says. It’s similar if you run an on-demand service like Netflix (or certain YouTube channels): there are certain requirements you must satisfy, and Ofcom has a power to fine you for any breach.

Up to New Year’s Eve the rules enforced by Ofcom banned the broadcast of anything which spread, incited, promoted or justified hatred based on intolerance on the grounds of “disability, ethnicity, gender, gender reassignment, nationality, race, religion, or sexual orientation”; Netflix and the like similarly could not make available anything likely to stir up hatred based on race, sex, religion or nationality. This was difficult enough. True, there was some relaxation for context (since otherwise not only reporting current events but showing many old films would have been distinctly problematical). Nevertheless, it meant that it was safer to refuse to air a large number of opinions. It also meant that Ofcom came under pressure, as noted here in The Critic, to require almost uncritical acceptance of (for example) gay or transgender activism, since any balancing voice was apt to be seen as falling foul of the prohibition.

Since then, life has got much worse. The new rules on so-called hate speech are far wider; they prohibit you from watching or seeing anything likely to engender hatred against any of the numerous “protected groups” listed in the 2000 EU Charter of Fundamental Rights. Look that up and you will see that there have been added to all the other existing characteristics the following: social origin, genetic features, language, political or any other opinion, property, birth, and age. All characteristics on this long list must now be protected from material likely to engender hatred, leaving broadcasters and Netflix to tailor their programmes accordingly.

If you find what they say offensive, switch off

It’s not difficult to see how this will in practice have an effect of narrowing discussion and controversy. To take some obvious examples, what are we now to make of suggestions from the left that that the elderly selfishly swung the EU referendum to promote their own interests; that billionaires and holders of hereditary wealth control the economy for their own economic benefit; or that free-market fundamentalists are blot on our society? Conversely, what about a right-winger who expresses detestation for the youth of today, suggests that the ignorant and ill-educated working class should be denied a say in government, or attacks language fanatics in Scotland or Wales as a threat to civilised life?

All of this can plausibly be said to be within the ambit of the new rules on hate-speech, on the basis that statements like these are likely to spawn hatred on the grounds of age, or opinion, or property, or whatever. True, these may not be opinions many of us have much sympathy with, but they are widely held and generally lawful to express.

Even assuming Ofcom to be even-handed in any enforcement action, to give any governmental organisation the right to control the expression of opinions of this kind, and potentially to sanction broadcasters who allow them to be expressed on air, is going much too far. The danger is very real that we will end up with a slightly left-liberal broadcast monoculture where participants – most of whom have limited time and resources to deal with regulatory matters – will play safe and avoid controversial views, if only to keep Ofcom off their backs.

But the free expression side, while vital, is only part of the matter. The way these new measures were enacted is curious. You will already have noticed one thing. The extra categories which gain protection from the new regime are taken directly from the EU’s 2000 Charter of Fundamental Rights, despite the fact that this is an instrument that ceased to be effective in UK from 11 pm on 31 December.

Indeed, the new rules, with their requirement to embody the categories contained in the Charter, are themselves derived from another piece of Euro-legislation, the 2018 amendments to the AVMS (Audio-Visual Media Services) Directive. This, too, is yet another piece of legislation which, thanks to Brexit, is no longer in force here since New Year’s Eve.

How is it we have suddenly become plus européen que les européens in imposing restrictions peculiar to European law which never existed before?

It was certainly not necessary. True, technically under strict EU law the amendments to the AVMS directive were meant to be enacted by member States during the UK’s Brexit transition period, a time during which the UK had agreed in principle to continue to be subject to EU rules. But if anything was a technicality it was this. The UK was due entirely to leave the EU at the end of 2020; it would not in practice have faced any serious consequences had it failed to enact the changes, since even if it did legislate it would be entirely free to reverse the effects of any legislation in a matter of weeks. And in any case the concrete rules introduced by Ofcom to make the new regime binding on broadcasters only became active after Brexit, when the entire Euro-Directive had dropped by the wayside as a matter of UK law.

Yet despite all this the government pressed ahead. The regulations giving effect to the Euro-Directive were passed, using legacy powers to enact EU law, so as to come into effect on 1 November, a date which everyone then knew was just nine weeks before Euro-law became permanently irrelevant in the UK context. Then Ofcom, which could have done nothing and let the matter drop on 1 January this year, obliged by introducing the necessary rules on 31 December.

The eventual aspiration should be to remove Ofcom from control of what is said on the airwaves

It is hard to avoid the conclusion that this was all the intended result of a genteel Sir Humphrey-style arrangement between parties who liked the old European ways of doing things and weren’t going to let a little thing like Brexit get in the way. A fair inference is that the DCMS (the Department for Digital, Culture, Media & Sport), never particularly attracted by the idea of broadcast free speech, was wedded all along to the idea of introducing further regulation of the airwaves on the pattern of the 2018 Euro-law. It is also possible that elements in parliament, notably the Digital, Culture, Media and Sport Select Committee, thought much the same way: indeed, as recently as last month that committee had pressed Ofcom to do more to suppress the airing in the media of views it deemed unacceptable. As regards Ofcom, this has had an ignoble history in the last couple of years of interference and imposition of its views on what was allowed on radio and television, and showed no reluctance to follow the lead of the select committee.

What can we do about all this? Call it out, certainly, and point out that the government could make a politically inexpensive Brexit gesture by getting rid of this new and illiberal wave of Euro-inspired censorship. But in the long term, unaffected by the trammels of EU law, we should be thinking of a more general relaxation of control.

The eventual aspiration should be to remove Ofcom from control of what is said on the airwaves, limiting it to such matters as allocating frequencies, the technicalities of TV advertising, and the like. Today there is no reason why broadcasters should not be like newspapers: free to say what they like, within the law. If you find what they say offensive, the solution lies with you. Switch off.

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