22 January 2009

Ross's Liabilities

Jonathon Ross returns from his twelve week suspension as reported by, amonst others, The Guardian.

Imagine that the known facts relating to his suspension were outlined in an undergraduate law exam; can you answer the question, what were his liabilities?

Lets begin with section 43 of the Telecommunications Act 1984 (c. 12) which provides,

"43 — (1) A person who—
(a)sends, by means of a public telecommunication system, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b)sends by those means, for the purpose of causing annoyance, inconvenience or needless anxiety to another, a message that he knows to be false or persistently makes use for that purpose of a public telecommunication system,
shall be guilty of an offence and liable on summary conviction to [F1 imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both].
(2) Subsection (1) above does not apply to anything done in the course of providing a [F2 programme service (within the meaning of the Broadcasting Act 1990)] F3 .

It seems to be a clear breach of the Act until you get to s43(2) which provides a get out clause. (The 'within the meaning of the Broadcasting Act 1990 refers to 201 Broadcasting Act 1990 (c. 42) which covers a radio broadcast).

This raises the question of statutory interpretation: a literal interpretation lets the man off the hook, but is that the correct interpretation?

In the absence of any case law for clarification it is not possible to say. I would imagine that the provision was put in place so that drama containing offensive and abusive communications within it could be broadcast without incurring criminal liabilities. If that is true, one can make a good argument for not interpreting the Act literally. There wasn't a prosecution, so the argument is merely of academic interest.

Analysis of section 127 of the Communications Act 2003 (c. 21) takes one to the same point.

A further laibility is found in the Protection from Harassment Act 1997 (c. 40).

But this is a civil remedy. It would be up to the receiver of the 'phone calls to initiate the prosecution.

Why wasn't this done?

Perhaps there was an agreement to raise Sach's grandaughter's profile?

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