Broadcasting in UK Law

The charges against Ms Murphy were that on 19 th August 2006 and on 25 th September 2006 she "dishonestly received a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme".

The question is to be answered by identifying what is said to be the "programme included in a broadcasting service", then determining where that broadcasting service is provided from. Employing the definitions of s.6 CDPA, a "programme" is "any item included in a broadcast", itself defined as "an electronic transmission of visual images, sounds or other information". We do not consider that for this purpose a "broadcasting service" is anything more than a succession of such transmissions.

But where Parliament has conferred on the executive an administrative discretion without indicating the precise limits within which it must be exercised, to presume that it must be exercised within Convention limits would be to go far beyond the resolution of an ambiguity.

But again, this surely does not mean that in deciding whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organisations, we are not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it.

Nevertheless the European Court of Human Rights unanimously found an infringement of Article 10, mainly (it seems) because of the monopoly positions enjoyed in Switzerland by a single public broadcasting corporation and a single company controlling television commercials. The judgment does not, with respect, give full or clear reasons for what seems to be a far-reaching conclusion.

Understandably Parliament has given to the BSC a broad licence as to how they exercise their judgment and discretion. The nature of its work and its membership are important when considering the role of the courts in relation to adjudications by the BSC. What constitutes an infringement of privacy or bad taste or a failure to conform to proper standards of decency is very much a matter of personal judgment. This is not an area on which the courts are well equipped to adjudicate.

To my mind the privacy of a human being denotes at the same time the personal "space" in which the individual is free to be itself, and also the carapace, or shell, or umbrella, or whatever other metaphor is preferred, which protects that space from intrusion. An infringement of privacy is an affront to the personality, which is damaged both by the violation and by the demonstration that the personal space is not inviolate.