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. In the present case, there is no doubt that the core of the transmissions received by Ms Murphy, the visual images and the ambient sound of the matches themselves, was transmitted for simultaneous reception by members of the public and was capable of being lawfully received by them from BSkyB.

It would be to impute to Parliament an intention not only that the executive should exercise the discretion in conformity with the Convention, but also that the domestic courts should enforce that conformity by the importation into domestic administrative law of the text of the Convention and the jurisprudence of the European Court of Human Rights in the interpretation and application of 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.

Mr Malynicz pointed to the Nice Classification, Ninth Edition. He did so not in order to construe what "telecommunications services" meant in his clients' specification, recognising that would be impermissible. Instead he drew attention to the explanatory note to show that as a matter of language, telecommunications could include both telephony, data message transmission and radio and television.

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.