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The Bill keeps in place the power of the Home Secretary to ban a particular broadcast or types of broadcast, most recently exercised two years ago to censor the appearance on radio and television of Northern Ireland terrorists and their supporters. It pretends to exercise a "lighter touch," but then introduces the BSC and gives the ITC a wide range of powers to enforce the myriad conditions imposed on licensees. But many of its critics have also been inconsistent. Broadcasters are understandably opposed to any tightening of the "due impartiality" requirement, yet many have advocated the imposition of minimum programme standards to safeguard quality television. Both requirements restrict the editorial freedom of broadcasting companies.
The fundamental issue is whether it is right for the law to impose restraints on broadcasters which are not imposed on the press. Nobody expects a newspaper editor to be impartial on contemporary political issues or to be even-handed in his choice of contributors. A law requiring the press to be objective would be considered a monstrous invasion of its fundamental freedoms.
So why are these freedoms denied broadcasters? Is there any reason why one channel should not show left-wing documentaries, while other channels are more sympathetic to the Conservative Party?
The broadcasting legislation will inevitably lead to a host of legal questions. It would be surprising if the ITC licensing decisions were not questioned in the courts, particularly if it does exercise its discretion to award a licence to an applicant other than the highest bidder.
The ITC also is to be given a wider range of disciplinary powers than those enjoyed by its predecessor, the IBA. It will have powers to fine broadcasting companies which do not comply with the conditions of their licence, to shorten its period or to revoke it.
In France the national private channels have frequently broken the terms of their licence conditions, finding this profitable and this has led to litigation before the administrative courts. The courts here may be asked, for example, to review decisions about how serious a licensee's breach of programming obligations should be to justify a fine or more drastic sanction.
This is an exciting time in which to take up the first Media Law Chair in the country. There are a number of things to do. Legal rules in a number of areas should be examined critically from the perspective of freedom of speech, to see how effectively they foster the values of that most fundamental liberty. Government is indifferent to these questions, and no law reform body has the capacity to tackle them. I hope that in time lawyers and judges will see that the profession of journalists and broadcasters is at least as honourable as their own. When that happens, perhaps the media will become less frightened of the inevitable intervention of the law.
Eric Barendt is Goodman Professor of Media Law at University College, London.
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