New Clause 22 (Hansard, 11 April 1972)

§ Mr. Whitehead
I beg to move, That the Clause be read a Second time.
At this late hour, I would remind the House of a very brief remark I made on 21st December in Committee. We were then discussing the stipulations of Section 3(1) and (2) of the principal Act in so far as those subsections would apply to radio just as they apply and have applied to television. I said: Each programme contractor in television has a carefully written document, the contract of that television company between itself and the I.T.A., and such documents will be written for radio."—[OFFICIAL REPORT, Standing Committee F, 21st December, 1971; c. 506.] I went on to say that over a period of time those contracts had formed an additional barrier to the proper development in a journalistic sense of television so far, and would form a barrier to radio in the future because of the restrictive nature of their wording.
I want to take the House briefly through the development of the rôle of the Authority as publishers. In his excellent recent study of the development of the I.T.A., Mr. Peter Black had this to say about the curious lapse by which Section 3(1)(a) of the Act was strengthened in the case of each independent programme contractor by the individual contracts which were drawn up between the I.T.A. and the programme company: Clause 3a of the Act laid the responsibility on the Authority for ensuring that nothing was broadcast that offended against good taste or decency or was likely to encourage crime or disorder or which contains any offensive representation of or any reference to living persons'. A clause in the contracts tied the contractors to undertaking that their programmes would not 'knowingly be defamatory, seditious, blasphemous, obscene 1216 or contain injurious falsehood or slander', etc. They also undertook to indemnify the Authority against any damages awarded against it as a result of such broadcasts. That is an accurate quotation, certainly as far as the companies for which I worked are concerned, from the contract which each company has had with the Authority since the beginning and as redrawn in 1967.
The contracts are known within the industry as the "cowards' charter" and it is my purpose tonight in briefly moving new Clause 22 to see whether we cannot perhaps make amends for the mistake—and I think it was a mistake in the case of television—involved in the drawing up of these contracts and start from the beginning in the case of commercial radio by recognising the responsibilities of the contracting companies, as they will be the publishers of the material, particularly in the news field.
Mr. Black, in discussing the problems of the contracts which were laid upon the contracting companies, went on to say: They had made"— that is the contracts— the companies responsible to the Authority. In law it could therefore be argued that the Authority was the publisher of the programmes. The reverse could also be argued: it was in the same position, as owner of the transmitters, as owners of the presses that printed newspapers. It could also be argued—and had been by Clark and Fraser when interpreting their function—that the Act did not require them to exercise day-to-day supervision over the companies. Just who, in short, was the publisher? Reducing the question to common sense, it was obvious that Clark was not. But for the purpose of identifying someone who could be sued he had to be because, under the Act, the companies could not be. The indemnifying clause, and the 'not knowingly' undertaking, had to be in the contracts until Parliament felt able to admit that the companies that put out the programmes were run by responsible men, as responsible to the appropriate laws as newspapers. To this day Parliament has not taken that step. Parliament has not decided that the television companies are responsible organisations which can bear the responsibilities of publishers.
I want to illustrate this point and the difficulties it raises in the journalistic function in broadcasting with my personal experience. In 1968 when I was working for a commercial television company, subject like all the others to that form 1217 of contract I have described, we had information relating to the activities of the public relations firm Maurice Fraser and Associates and its contact with a certain other country.
We found, because of the information at our disposal, that it was possible by the day of proposed transmission to force the management consultancy firm which had been involved with Maurice Fraser and Associates and with the Greek Government, a firm called P. A. Management, to publish on the day of proposed transmission a statement accepting, because it had no alternative but to accept, the substantial truth of what we were contending in the programme, what had been discovered by way of sworn statements from previous employees of the public relations firm.
The Authority took the view and clearly will take the view in a similar situation in television—and, unless we do something about it, will do the same in radio—that those statements, although clearly true and clearly not libellous, were equally clearly defamatory. Therefore by a curious paradox we were prevented from putting on the air a programme which raised no possible question of legal action, because by the day of transmission the people who might have been litigants had been forced into the position where they had to accept broadly the truth of the allegations made against them. But because those allegations were of the nature and style that they were, the Authority took the view that it would not be within the terms of the contract of Thames Television, since the Authority and not the company was publisher, to allow this material, which was technically defamatory, on the air. So the programme was stopped. It is an extraordinary situation.

§ Mr. Chataway
The whole House will have been very interested in the speech of the hon. Member for Derby, North (Mr. Whitehead). Even at this time of night I found a great deal of interest in what he said. That, after goodness knows how many hours of debate on the Bill, we should be presented with an entirely novel argument is a surprise, and a very welcome one. I can well see that the experience the hon. Gentleman has had as a producer has led him to feel strongly about this point, but even if one accepted his argument and believed it was right to transfer total responsibility to the company away from the Authority, the new Clause would not achieve it. While I understand the purpose of the new Clause, it would not have the effect of making the company, and only the company, liable.
The difficulty is that it is the Authority which is the propagator. Since the Authority is transmitting the programmes, there is a situation in which the Authority is in effect publishing them. Whether that be the case or not, my advice is that the new Clause would not have the effect of transferring the responsibility. I can see that when the hon. Gentleman takes the analogy of the Press he is suggesting that in this respect the company should have the same freedom as a newspaper to say "This is our judgment; we will take the risk and publish". But the broadcasting situation is rather different.

§ Mr. Whitehead
The difference is the Television Act. There is to be in addition the restriction of the contract.

§ Mr. Chataway
How far the difficulty flows from the Act and how far from the reality of the situation, where the Authority has the ultimate responsibility and does the transmission, perhaps there will be opportunity to discuss on some further occasion. All I can say now is that I am sure my successor will be interested in the point the hon. Gentleman has raised, and obviously the hon. Gentleman is more concerned with it in relation to television than to radio. There really is no prospect of effecting the kind of change the hon. Gentleman wants to see as simply as the new Clause suggests.

§ Mr. Richard
I reinforce the argument of my hon. Friend the Member for Derby, North (Mr. Whitehead). I understand him to be saying that, because it is the 1220 Authority which does the transmitting and therefore is the propagator, and because the programme companies are bound by their contracts with the Authority not to commit libel, the individual programme companies in the independent network are under a greater degree of restriction than either the B.B.C. or, indeed, any of the newspapers in Fleet Street. My hon. Friend is basing his case on three main propositions. Third I think he is saying that these restrictions do not apply to the other media of communication with which the independent network, whether television or radio, is in competition.
The Minister should consider these arguments. I do not see why an independent company should be under any greater restraint in this regard than the B.B.C. It arises only because of the difference in the structure of the two authorities and that, is not a sufficiently good reason if it seriously hampers the way in which individual producers put out programmes which they and their programme companies think are legitimate.
Therefore, although one clearly could not vote on the new Clause because, as the Minister says, it does not achieve the intention, nevertheless it is a point which I hope the new Minister will at least agree to look at. If it is a good one, perhaps he will remedy it, if not during consideration of the Bill, at some future stage. There is a simple legal tag which applies here, Ibi jus ibi remediem—"If there is a need for justice, there is a need for a remedy." I hope that the Minister will consider this.

§ Mr. Whitehead
Like my hon. and learned Friend, I follow at least the intention of this probing Clause. When some of his learned friends are called in to advise in the dilemma which I have described to the House, it is an absurd situation in which, after having advised on the legality of what is proposed, they have further to advise on the situation vis-à-vis the programme contract. It is that advice which limits journalists working in commercial broadcasting in a way in which none of their competitors in public service broadcasting or the Press is limited.
I hope that, at some later stage, the new Minister will look again at this stipulation. It should be removed from the 1221 contracts which at the moment shackle commercial broadcasting. Bearing in mind what my hon. and learned Friend has said, I beg to ask leave to withdraw the Motion.