James Murdoch’s Edinburgh MacTaggart Lecture attack on
Ofcom and the BBC was so blatantly self-interested and tendentious that
it was easily dismissed by all right-thinking people. Now that it
has been firmly adopted and amplified by politicians, who might
all too soon have the power to mount an attack on these
institutions to his and his father’s liking, it becomes a firm imperative
to stand by the potential victims. Or does it?

Even in these out-of-joint times when calm debate is rarely possible,
there are good reasons for questioning the legitimacy of both
institutions – especially Ofcom – in a mature liberal democracy.
Historically, the central principle which has been seen as essential to
the right of free expression is that it be impervious to State intervention.
This means, in the words of Edward Clarke, John Locke’s friend, that
specific legislation controlling the media – in his day, of course, just the
press – was “very needless”. That was in 1695 but it is still true, as is
the jurist William Blackstone’s insistence, the following century,
that there be no “prior constraint” on public communications.

One way or another Ofcom and the BBC both play fast and loose
with these principles. They do so on the 20th century grounds that
broadcasting was so pervasive and limited a resource it required
regulation and this justified the involvement of the State. Whether
or not, fundamentally, it was right to regulate broadcasting was never
considered. Nevertheless, the principle of free expression, as a
basic human right, ought not to be media-specific, for all that it has
been – more or less – limited to the press. (The theatre, for example,
had to wait until 1968 before escaping from the dead censoring of
the Lord Chamberlain.)

Broadcasting regulation was inevitable not least because there
was an initial technical justification for controlling the allocation of
bandwidths; without control, broadcasters – or any other
through-air signal provider – could encroach upon each other.

In the age of channel abundance the scarcity argument fails. Even
without this, it was a clear case of mission creep to move from
necessary technological regulation of the infrastructure to the control
of content; but, again, this was done and persists without much
argument as to its appropriateness in a democracy ostensibly
committed to the principles of free expression. That such control is
“very needless”, given that we have general laws aplenty for the policing
of media content, is ignored.

What is left to justify content-control are non-technological
assertions – that broadcasting can be an “uninvited guest” of
exceptional power and influence and that the market cannot be trusted to
provide “quality”. These, though, are really no more than shibboleths,
puny in the face of what is arguably an ever-more pressing need to
defend the right of free expression. The arguments for specific content-control
are nothing more than pleas for the nanny State to protect us
from this image, or encourage us to consume those messages. The time
is long past to let go of nurse.

There is, in short, nothing to be said for Ofcom’s meddling with
content. Leave aside the bourgeois, curtain-twitching requirements of
its production “code”, how it comes to be, for example, messing in the
appointment of chief executives of media outlets is both curious and
offensive to the principle of free expression.

The BBC is, of course, a better case; but its close relationship to the
State via the licence fee ought to be a matter of far greater concern than it
is. The licence fee settlement renders it susceptible to real
pressure from even the most benign of politicians, never mind swiveleyed
maniacs who, in defiance of the Corporation’s impeccable
pro-establishment history from the moment of the 1926 General Strike
on, are now again on a witch-hunt looking for reds under the BBC bed.

Public service broadcasting is in an hour of need all right but, despite
this, would-be siren songs about the wonders of the market sound
clashingly out of tune. The best argument for some form of State
intervention is, pace young Murdoch, the market’s palpable
failure to provide a full range of programming whenever it has been
left free to do so.

Correcting that failure, however, simply has nothing to do
with an overblown, overstaffed (750-plus) NGO such as Ofcom. It
should be cut down to a technological brief immediately.
More problematically, the correction of market failure does
not necessarily require a sledgehammer the size and
complexity of the BBC. A commission charged with providing
funding for “quality” and empowered to command space for
its transmission might do just as well. In New Zealand and in Ireland
broadcasting commissions distribute public funds specifically
to producers to make good lacuna in programming provision. Surely not
the crazy, unthinkable idea that the emotional spin of top-slicing of the
beloved BBC’s licence fee makes it seem? Like republicanism it should
not be dismissed as unthinkable – even if it is going to have to wait its
time while we defend the public service broadcasting principle in
toto from the barbarians at the gate.

Brian Winston

The writer is a member of the BJR editorial board. A follow-up to his
history of free expression, Messages: Free Expression, Media and
the West, 2005, will be published next year.