Progress catchup 1 - update on the challenge to Ofcom/ATVOD

Ofcom were given until 7 February to reply. At 4.30 pm on the 7th they e-mailed their reply. This is the response letter we received posted in full below as jpeg images. 

In summary: 
                     Ofcom first set out the history of the case in terms of ATVOD's and Ofcom's procedure, then they responded to the grounds of claim as put to them, before replying to the request for information and documents and indicating that they would oppose an application for a protected costs order. 

Below is copied the important bit - their response to the grounds to bring the claim.

" Ofcom's response to the proposed claim

Ofcom considers that there is no merit in the proposed grounds of challenge advanced in your letter dated 24 January 2013.

Standing

In order to bring a claim for judicial review, a party must have "sufficient interest in the matter to which the application relates". Ofcom does not consider that Some Common Sense, which you describe as "an ad hoc group of concerned individuals and groups" has sufficient interest to bring an application. Even more so, we note that your group does not appear to include either the person to whom Ofcom's direction was addressed (i.e. the Service Provider) nor the person featuring in the Service (i.e. Jessica Pressley).

Time for bringing a claim

Rule 54.5 of the CPR requires that a claim must be brought "(a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose." Neither of these requirements have been satisfied.

Given that Ofcom's direction was given on 7 October 2013, the three month period for bringing a claim expired on 7 January 2014. That the proposed Claimants may not have been aware of Ofcom's direction until it was published on its website on 15 November 2013 is not relevant (and merely emphasises that the proposed Claimants do not have sufficient interest in the matter to bring a claim).

Substantive proposed claim

Moreover, any application for judicial review would be without merit. It is not clear from your letter exactly what are your proposed grounds for review. However, they appear primarily to relate to the compatibility of Ofcom's decision with Article 10 of the European Convention on Human Rights.

Ofcom's decision is not an unlawful interference with Some Common Sense's freedom of expression. Article 10 states that the right to freedom of expression may be subject to restrictions as are prescribed by law and are necessary in a democratic society, inter alia, for the protection of health and morals, and Ofcom's decision was compatible with this.

Under section 368(c) of the Act, both Ofcom and ATVOD (as the appropriate designated authority) are under a duty "to take such steps as appear to them best calculated to secure that every provider of an on-demand programme service complies with the requirements of section 368D". Section 368D in turn requires providers of on-demand programme services to comply with the requirements of sections 368E to 368H and these include, of particular relevance to the present case, a requirement under section 368E(2) that "if an on-demand programme service contains material which might seriously impair the physical, mental or moral development of persons under the age of eighteen, the material must be made available in a manner which secures that such persons will not normally see or hear it."

Ofcom was clearly applying the statutory scheme prescribed by law, which Parliament has determined is necessary in a democratic society for the protection of under-eighteens from harmful material.

Ofcom does not accept your assertion that it has incorrectly applied section 368A(1) in finding that the Service was an ODPS, or that it incorrectly applied section 368E(2) in finding that the Service "might seriously impair the physical,mental or moral development of persons under the age  of eighteen". In relation to the first point, we note that the Service Provider had an opportunity to appeal ATVOD's decision that it was an ODPS to Ofcom and did not do so. On the secondpoint, Ofcom has made numerous findings in relation to R!* material, and it is absurd to suggest that the Service's own "conditions of entry" would be enough to prevent minors from viewing the R18 material."

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