Leaked letter reveals Home Secretary’s proposal for Ofcom powers to ‘censor’ broadcast of ‘extremist content’

Home Secretary Theresa May proposed that broadcast regulator Ofcom be given the power “censor” transmissions involving “extremist content”, according to a leaked letter in which the former culture secretary condemned the plans.

Sajid Javid, who moved from culture to Business Secretary earlier this month, said the rule change would “involve a fundamental shift in the way UK broadcasting is regulated, away from the current framework which is designed to take appropriate account of the right to freedom of expression”.

Leaked to and published by The Guardian, the letter from Javid to Prime Minister David Cameron took issue with paragraph 111 in “Extremist Strategy ‘A Stronger Britain’”. At the time, May was seeking clearance for publication from the Home Affairs Committee and National Security Committee.

According to The Guardian, it is not clear what the result of Javid’s letter was, though it said that next week’s Queen’s speech is “expected” to include reference to powers to “strengthen the role of Ofcom to take action against channels which broadcast extremist content”.

The leaked letter does not set out exactly what paragraph 111 said, but Javid told the Prime Minister that he believed that the proposed rules would lead to the UK being associated with “other countries with a pre-transmission regulatory regime [that] are not known for their compliance with rights relating to freedom of expression”. He added that the “Government may not wish to be associated with such regimes”.

He also suggested that the Government could be accused to “inappropriate involvement in the regulation of the broadcast media which is particularly sensitive in light of Leveson”.

Javid wrote: "My department fully supports the aims and objectives of this Strategy, which seek to tackle extremism in all its forms whilst promoting the benefits of belonging to British society, and I recognise the shared challenge for both Government and communities to do more to tackle the issues that create divisions in n society.

"I also recognise the particular challenge of ensuring that the opportunities for extremists to spread their message are limited and the important work that Ofcom does in this area in regulating the broadcast media. Ofcom has strict rules, set out in the broadcasting code, which require that material likely to encourage or to incite the commission of crime or lead to disorder is not included in television and radio services. In addition, Ofcom's remit in relation to 'television-like' on-demand programme services ('ODPS') includes a provision on material likely to incite hatred extremist content. Ofcom has taken robust action against UK broadcasters which have breached these rules. However, Ofcom does not have the powers to approve programmes before they are broadcast and nor do we consider that it should have these powers as has been proposed in paragraph 111 of the strategy.

"Extending Ofcom's powers to enable it to take pre-emptive action would move it from its current position as a post-transmission regulator into the role of censor. This would involve a fundamental shift in the way UK broadcasting is regulated, away from the current framework which is designed to take appropriate account of the right to freedom of expression. Whilst it is absolutely vital that Government works in partnership with individuals and organisations to do all it can to ensure that society is protected from extremism, it must also continue to protect the right to freedom of expression and ensure that these proposals do not restrict or prevent legitimate and lawful comment on debate.

"It should also be noted that the other countries with a pre-transmission regulatory regime are not known for their compliance with rights relating to freedom of expression and Government may not wish to be associated with such regimes.

"I am concerned about the risk that the powers would be used otherwise than intended, not least given the difficulty of defining extremism, and the consequent likelihood of the Government being seen to be interfering with freedom of speech without sufficient justification. Given that Ofcom comprises a Government appointed Board there is clearly a risk that the Government will be accused of inappropriate involvement in the regulation of the broadcast media which is particularly sensitive in light of Leveson.

"I am therefore unable to agree the publication of this strategy with the current wording used in paragraph 111, and would propose that it is replaced with the text below. This had previously been agreed between our two departments as well as Ofcom, and sets out the Government's intention to keep Ofcom's powers under regular review to ensure it is able to take sufficiently robust action against extremist broadcasts."

Without publishing in the letter what May’s paragraph 111 said, he suggested it should be amended to read: "We fully support Ofcom's efforts to identify and take appropriate action against extremist content and, with ofcom's independence in mind, we will offer specialist linguistic and other resources to assist it as requested and when appropriate. We will regularly review with Ofcom whether its legislative powers remain sufficiently broad and robust to tackle the broadcast of extremist material."

Javid added: "I would like to reiterate my department's commitment to assisting in the progression of the work of the Task Force and would take this opportunity to thank you and your department for the good work you have done in developing this strategy."