Freedom of Expression and Free Television - The Channel 4 Experience

1 November 2012

A speech given by David Abraham at The Freeword Centre, London. November 1st 2012.

Thirty years ago tonight, British TV viewers were about to have their perspectives altered with the arrival of Channel 4 into their living rooms for the first time. Our founders were animated by the belief that Britain in the late 1970s was changing. They saw that fresh but marginal ideas and viewpoints could be supported and served by the creation of an independent, non-mainstream station. Channel 4 would be free at the point of reception but not reliant upon the future financial support of the state.

Supporters of Channel 4 also believed that by liberating the editorial process from the constraints of in-house production at the BBC and ITV, our media would be enriched by the flow of plural and challenging viewpoints coming from independent producers. This, they were convinced, would strengthen the fabric of civic and cultural life in Britain.

The public remit that frames Channel 4 has been handed down over several generations of management. Delivering it is something that quite rightly is always in debate.  It has even been described as a ‘sacred trust' - an amalgam of ideals ranging from the philosophical to the practical: from the need to challenge audiences with new ideas, to the responsibility to support new talent and the development of new creative companies and so to support entrepreneurship.

But challenging audiences and challenging existing laws and regulations often go hand in hand so tonight my focus is on the relationship between the two from a Channel 4 perspective. I'd like to thank the Freeword Centre for hosting. Being here tonight, rather than at Horseferry Road, reminds us all that the ideals that have always informed Channel 4 form part of a wider tradition of freedom of expression in this country that goes back way before television.

Britain after all has a taste for rebellious institutions - places where people who push against the norm, or have something new to say are given a platform - where radical and innovative thoughts can breed.

It's a habit that has developed over the centuries going back to the coffee houses of the 1650's. These were open hothouses of independent thought, creativity and innovation which operated without wealth or class divides - much like Speakers' Corner still does today. More formal organisations like the Royal Society, the Royal Academy and the RSA then evolved - just as institutions like the ICA and the Royal Court have done in the modern era.

What's more, these organisations have generally been not-for-profit ones too - because this very freedom from government, shareholders and solely commercial interests is what helps create a particular space for experimentation and risk.

Such bodies are a hallmark of a democratic society that allows innovative thought and radical thinking to flourish. In the words of the academic Slavoj Zizek, star of a new Film 4 backed feature ‘A Pervert's Guide To Ideology': ‘we live in a universe of dead conventions and ‘lack the language to articulate our unfreedom'. Channel 4 is part of a tradition that questions ‘unfreedom' and it is vital that we remind ourselves of it on this, the eve of our anniversary and keep reinventing ourselves, as a social enterprise for the 21st century.

Channel 4 uses its unique status as a hybrid, not for profit organisation to deliver very particular forms of public value. This public contribution can be measured in multiple ways but the one I am focusing on tonight is Channel 4's support for freedom of speech. And by freedom of speech I mean much more than saying what you like. We recognise free speech from multiple viewpoints and believe in questioning authority and supporting others to do so. We hold these others and ourselves to account for our views in public and refuse to accept that free speech needs anonymity as a cover, being willing to stand up for the truth and to accept the costs of doing so.

I shall begin by looking back at a couple of examples of how Channel 4 did these things in the early decades, and then review more recent cases from each of the flashpoint areas of investigative journalism, libel, taste and decency and big business. Each case reveals something of the unique and critical contribution that the Legal and Compliance teams at Channel 4 have consistently delivered in support of our ground-breaking journalism and creativity and so this speech is dedicated to them both past and present.

The Early Years

Until 1989 newspapers and TV had no rights to challenge or appeal a gag order covering a trial. When the judge banned Channel 4 from using actors to read excerpts of the court transcripts in the Clive Ponting trial, Channel 4 substituted a team of newsreaders to get round the order and get the programmes to air and filed a complaint with the European Commission citing the European Convention on Human Rights and breach of freedom of expression. The UK Government accepted the ruling and negotiated a ‘friendly settlement'. Consequently the law was changed to give all the media a special right to appeal against orders aimed at excluding the media and public from any part of a criminal trial. This case demonstrated very early on how Channel 4 was committed to openness and accountability in public life.

The next case was centred on the issue of accepting accountability for the anonymity of sources. It was also the closest the Channel has ever come to being closed down. Broadcast in 1991, The Committee investigated allegations made by ‘Source A' a self-confessed loyalist terrorist that he was a member of a group of Protestant businessmen, and pillars of the community that met regularly and who colluded with RUC officers to plot the deaths of suspected IRA supporters.

Channel 4 was ordered by the High Court to identify Source A and when it refused on journalistic grounds, contempt proceedings were issued, with the Channel facing potential penalties including the sequestration of its assets.

But recognising that closing Channel 4 down would not be likely to change the principled position of its management, Lord Justice Woolf stated that:

"it may not have been appreciated by the companies in this case the dangers which were implicit in giving an unqualified undertaking [of confidentiality to their sources], although... this should have been in their mind. This will not apply to the future but is a compelling factor in the present situation''.

This judgment had the effect of warning all journalists what would happen if they were ever again tempted to put the public interest above the law. As a result of the judgment before any unqualified undertaking can be given to a source which it is expected Channel 4 should be bound by, it must be referred up to the Chief Executive and to the Channel 4 Board for consideration.

Investigative Journalism

The next two cases highlight the unique way in which Channel 4 approaches investigative journalism as a public body that must at all times be highly accountable for the manner of its investigations.

‘Undercover Mosque' was a Dispatches Special in 2007 made by David Henshaw who is here with us this evening. An undercover reporter revealed extreme and anti-democratic views being preached in mainstream British Mosques and Islamic organisations which claimed to be committed to interfaith dialogue. The undercover recordings featured the teachings of several speakers and teachers which were homophobic, anti-Semitic, sexist and condemnatory of non-Muslims.

Following broadcast, West Midlands Police launched an investigation into some of the individuals featured in the programme. In August 2007 they wrote to Channel 4 and the CPS, simultaneously issuing a press release alleging that the programme might ‘undermine community cohesion' and referred the matter to Ofcom alleging that the programme was manipulated.

But in November 2007 Ofcom dismissed all complaints against Undercover Mosque and concluded:

"(This) was a legitimate investigation, uncovering matters of important public interest"

Reluctantly, the producers were then forced to issue libel proceedings against the police and CPS when they refused to withdraw the unfounded allegations that the programme had been mis-edited and had incited criminal activity. In May 2008 the police did apologise unreservedly for the comments which they accepted were incorrect and unjustified. They also agreed to pay £100,000 damages to the programme-makers who donated this to The Rory Peck Trust.

Now, this approach is extremely rare for Channel 4 and we acknowledge that some media owners take a more purist view that they should never resort to using libel laws as they conflict with values of freedom of expression. We respect the views of many here this evening who have lobbied for the new Defamation Bill to remove the right of all companies to sue for libel unless they can show actual (or likely) serious financial harm and malice, dishonesty or reckless disregard for the truth. The government has not included this within the Bill. I shall return to this a little later suffice to say that when the integrity and trust of Channel 4 are put at risk, it is a threat to our future finances and much more.

Channel 4 has a strong tradition of covering international investigations in-depth and is recognised and trusted by the public for doing so independently. Take Sri Lanka's Killing Fields for example, produced by ITN. It was watched by a million viewers on Channel 4 and over 500,000 viewers in over 30 countries via 4oD. Following its transmission, it was screened to diplomats at the UN in Geneva and New York and also to politicians at the European Parliament and the US Senate.

A global campaign to discredit the integrity of the journalism in these documentaries has been sustained since the first broadcast. Nevertheless, on 22 March this year, a week after the broadcast of the 2nd Programme, the UN Human Rights Council adopted a resolution urging Sri Lanka to take steps to investigate the alleged abuses carried out by Government forces in the final phase of the conflict.

Sri Lanka's Killings Fields and its follow up War Crimes Unpunished demonstrate Channel 4 standing up to vested authorities around the world and the value of investigative journalism to hold others to account in a period when less and less money is being spent on such endeavours. Reactive journalism on its own is never enough. We may be smaller than the BBC, ITV and Sky but the independence of Channel 4 is critical in this respect - free from the pressures of both private investors and a government that ultimately holds the purse strings of the licence fee.

The current scandal around Jimmy Savile reminds us all of both the value and of the challenges surrounding investigative journalism. There remains a very real risk that the appetite for these projects will continue to be challenged both economically and legally and that is why Channel 4 News, Dispatches and Unreported World remain such key parts of the Channel 4 schedule, and why we shall continue to invest in them and why we have also invested £0.25m in training the next generation of investigative journalists.

Comedy

Channel 4 has also made an outstanding contribution to the history of comedy in this country - breaking new talent and taking risks on material that other broadcasters have tended to shy away from- but this has not come without periodic moments of serious regulatory and legal debate - as shown in the very recent and successful libel trial privately brought by Frankie Boyle against the Daily Mirror. This focused on satirical sketches contained in a series commissioned by Channel 4 in 2010. We would not have broadcast these sketches if we believed them to be racist. The jury agreed as Ofcom had already done earlier. The Daily Mirror disagreed but in an important outcome for comedians in this country, they lost the case.

Back in 1997 the case of Brass Eye forced the then regulator to change its code of practice with regard to ‘set-up' situations.

Examining subjects as diverse as drugs, animals, science, crime, sex and moral decline Brass Eye featured ‘set-up' interviews with public figures, MP's and celebrities who were asked to support campaigns, unaware that they were entirely contrived. The most controversial was for a made up drug called ‘Cake'. David Amess MP famously supported the campaign and raised a parliamentary question about the drug without checking whether it was real.

The then ITC Programme Code did not permit such interviews to be broadcast without the express consent of the individuals, which would not have been forthcoming given their obvious embarrassment in being duped. Nevertheless, Channel 4 broadcast the interviews but complaints by a number of those featured were upheld notwithstanding the clear public interest arguments.

The Code was later changed after representations from Channel 4 that such a public interest exception should be introduced that would allow such material to be broadcast without individuals express consent. This subsequently paved the way to further changes in the Code to allow Ali G, Trigger Happy TV and Balls of Steel.

Libel

Channel 4 recognises that libel laws are rather like a knife that can cut both ways - in defence of the truth and of the vulnerable as well as being open to misuse by the powerful. Both aspects came to light in the case of Fiddes vs Channel 4.

In 2009 The Channel had broadcast a seemingly harmless observational documentary produced by Studio Lambert following Tito Jackson's visit to the UK. The programme narrative included the breakdown of the relationship between Matt Fiddes, a former bodyguard to Michael Jackson, and Tito Jackson.

Fiddes issued libel proceedings claiming that the programme alleged that he had exploited the family for his own self-interest and betrayed their trust and that the programme had been ‘faked'. The claimant's solicitors were funded under a conditional fee arrangement and were potentially entitled to receive 100% uplift on their legal fees if the case was won, in addition to any damages paid out to the claimant. Channel 4 contested the claim on the basis that the allegations were justified and a matter of fair comment.

Channel 4 was backed by the Jackson family throughout and eventually the claimant discontinued the case a few days before the start of 5 week libel trial and withdrew his allegations that the programme had been faked. No damages or the claimant's legal costs estimated to be £1.3million were paid by C4. The cost of defending the case cost C4 £1.7 million.

C4 is not opposed to ‘no-win-no-fee' in providing the necessary access to justice for claimants. But we object to claimant firms being entitled to recover grossly inflated uplifts that are often disproportionate to the risk they run in bringing a claim.

Often these costs are used to place financial pressure on media defendants to settle and encourage some claimants to bring unmeritorious claims since they are not at risk. They also discourage others from reporting the truth in the first place for fear of such lawsuits.

This case was one that confronted me my upon my arrival at Channel 4 and was particularly toxic because of the repeated attempts by the claimant to use press coverage on the case to discredit the film's director with false claims of fakery as a result of which she was harassed and found it difficult to remain in employment. Parts of the press went along with this.

I believe our remit leads us to be both the sponsor and the defenders of free speech. In extreme circumstances like this and in the case of Undercover Mosque, this manifests itself in resisting spurious legal claims. For the good of everyone, Channel 4 has to be prepared to use its size and to stand up to those who seek to put pressure on the media and we must not exclude the option of using the courts to do so.

Commercial Conflicts

Paradoxically, from time to time, this can also mean we will even have to stand up to those who fund our programmes.

For 30 years Channel 4 has benefited from an enlightened approach by British marketeers and advertisers who, by buying our audiences support our creative ambitions, which have in turn supported the development of an independent and independently minded creative economy for the UK. This is achieved despite Channel 4 remaining both an irritant and a challenger to vested interests.

This year, for example, in an undercover Dispatches special about abuse in the ticketing industry so called ‘fan sites' were exposed as, in effect a cover for touting. In response to a detailed right to reply letter sent to Viagogo, one of the UK's biggest ticket re-selling websites - brought an application for an injunction to prevent undercover evidence being included in the programme on the grounds of ‘breach of confidence' and in effect preventing the key allegations being broadcast. The application was contested on public interest grounds and was dismissed on all counts in the High Court. Viagogo then applied to the Court of Appeal for permission to appeal against the High Court judgment, but this was refused only a matter of hours before the broadcast, which then went ahead.

Taste and Decency

On the very first night Channel 4 went live in 1982 the film Walter was shown which the Evening Standard described as ‘one of the most shocking films about mental illness ever broadcast'.

Ever since, it is in this conflict area between creative freedom of expression and taste and decency that Channel 4 has lived through some of its most intense moments of public scrutiny and on occasion struggled in some of its most vociferous debates.

It is perhaps inevitable that our culture of risk-taking will on occasion take us over the line. Getting it wrong can be as valuable as getting it right and I felt it was important to reflect on a couple of examples tonight because we have had to learn from our miss-steps as much as from our victories.

In 2007 Ofcom found that Channel 4 ‘failed to address the potential for racial offence' in remarks made during Celebrity Big Brother. The Channel accepted and regretted that many viewers had been offended but submitted that important freedom of expression issues were at stake. Channel 4 considered the debate stimulated by what occurred had been of "undeniable public value" regardless of the fact that it had not set out to create a national debate about racism. But Ofcom found that Channel 4 failed sufficiently to address the potential for offence, left this behaviour unchallenged and failed in its handling of the incidents broadcast to take account of the cumulative effect of the events in the House. Ofcom directed C4 to broadcast the findings on three separate occasions.

In 2010, Frankie Boyle's Tramadol Nights series mentioned earlier also included a darkly satirical joke directed at Jordan. However, Ofcom did not share our view and concluded that the joke appeared to directly target and mock the mental and physical disabilities of her eight year-old son which was highly offensive to the audience. They concluded that the case involved an erroneous decision on a matter of editorial judgment on the Channel‘s part which we accepted and for which we apologised.

We have sought to learn from these experiences whilst also avoiding the danger of a creative ‘chilling effect' moving through our building. For example, one of the many benefits that new technologies provide is to allow authors to explain their work and the thinking behind it more directly so that together we reduce the misapprehension that the channel is not listening to its audience. Peter Kosminsky, for example, used a live webcast to great effect in explaining the research that went into his controversial Channel 4 drama The Promise in 2011.

But, occasional offence seems inevitable given the remit to test boundaries and when cultural tastes are always fluid. Channel 4's producers have often exposed the differences between generations in terms of what is and isn't acceptable at any point in time. It is perhaps likely that our culture of risk-taking will also on occasion take us over the line. But I have also learned that even the appearance of doing so for its own sake does not sit comfortably with the spirit of our remit.

Freedom of Expression and Free TV

My focus so far this evening has been on looking at some of the ways in which Channel 4 has had to and continues to defend its editorial values against the increasingly complex legal and regulatory framework in which we work.

This is essential in order to live up to the spirit suggested by our remit - to champion freedoms in television and to act as a catalyst tolerated within a bigger system. Mummifying Alan, Drugs Live, Plane Crash, Bank of Dave and our film on Ian Brady are all very recent examples of how our legal team had to test the boundaries of several UK laws in order to get extraordinary new shows on air. We are currently working on projects for next year that amongst other issues push the envelope on existing laws on human tissue, murder trials and end of life care.

As a national broadcaster we carry out this work within the accountability framework set by the Digital Economy Act and under the supervision of Ofcom. I do not believe this framework blunts our creativity or journalism; indeed, I am in broad agreement with the spirit of what our respected news anchor Jon Snow recently said at The Leveson Enquiry: individual citizens ought to have firmer recourse and protection when media organisations break the law; and statutory accountability far from stifling public interest journalism, can actually help to sharpen it and increase public trust.

But it is also true that sometimes - perhaps because we are smaller than the BBC we, rather like Private Eye, are tolerated for our freedoms to a degree that larger channels are not. As Michael Grade recently told me, when Downing Street panicked over a Channel 4 documentary alleging that a company in which Dennis Thatcher was Deputy Chairman had purchased another firm which did business with the Mafia, Tim Bell's advice was to just ignore the programme altogether. But at other times our freedoms have to be fought for on a case-by-case basis and then, the fact that we are independent really matters.

I passionately believe that Channel 4's remit will remain equally important in future decades. To explain why I'd like to broaden the perspective out and touch on links with the wider technological environment in which the content is now moving. Because freedoms also rely on the ‘how' as well as the ‘what' in media.

The internet is often described as a bastion of free speech - giving everyone the opportunity to say what they want, and be heard by and to listen to anyone else (and to do so anonymously). In the case of genuine dissidents and whistleblowers, this argument has merit. But the increasing use by some of anonymous trolls, especially in the West, to abuse and malign others means that whilst speech is free it need not always be defended. The result is a mix of allegation, insult, abuse and speculation. So what good is this flood of opinion? What prominence does it have without traditional media to select, corroborate and promote it? What value does it have when some are unwilling to defend the views they write or if the writers are unwilling to be accountable for what they say?

By contrast Channel 4 stands as a direct descendent of the coffee house culture of public debate of fact and opinion, public defence of that debate and public free speech for all - and it refuses to become part of that culture that prefers speculation and insult, abuse and allegation sourced in the anonymous unaccountable web. Channel 4 stands up for the programmes it airs, is accountable for them and defends them to the benefit of producers and the public.

But in the part of our media landscape that I inhabit, the world of television, things are profoundly changing. Driven by the same technological forces that are affecting all our lives, a new kind of environment is emerging. That of integrated technology and content pay platforms competing with state funded broadcasting in the form of the BBC. Or voluntary pay TV vs involuntary as it could be described.

Free to air television, which has been the foundation of public service broadcasting for many decades is now having to adapt to a world which is being blurred by broadband.

New kinds of gatekeepers and intermediaries are emerging which are challenging us to reimagine how public broadcasting is delivered in the future. One way or another, the notion that citizens might access a plurality of accountable views and ideas free at the point of consumption is being altered.

It remains the case that the vast majority of content viewed behind pay walls is still content coming from the public service channels that makes up the vast bulk of the online catching up and tweeting too. But freedom of the imagination and freedom of access are ultimately linked. The more of our media that is gate-kept by integrated technology and content platforms, the greater the vigilance that is required to protect challenging new voices getting heard at scale.

Channel 4 is currently active on two fronts in this struggle. Firstly, we oppose recent suggestions by the House of Lords Select Committee suggesting that terrestrial television should be transferred off its DTT spectrum and moved onto the internet. Seven million homes in the UK - many of them occupied by the economically disadvantaged, still do not even have broadband. Informed industry estimates suggest that total lawful TV on demand still makes up less than 3% of all TV viewing. We need to retain universal access broadcast free at point of reception for a good while yet - a position we are pleased to see that Ofcom and the government have both recently confirmed.

Secondly, we are working hard to adapt ourselves to the future, and investing heavily to develop new relationships online. It cannot be right to allow technology platforms alone to profit from the attention that public service broadcasters create in the public interest. This is the reason why last year I announced that we were embarking on a new strategy to engage much more directly with our audiences via the emerging tools of connected TV. Within a reasonably short space of time nearly 6m viewers - including 1 in 3 16-24 years olds - have voluntarily registered with us and are now becoming active respondents to our growing range of digital products, offers and conversations.

Over time this will introduce a new engagement layer with our audience in which the mutuality between us is manifested far more intensely than was ever possible in the era of traditional ‘one to many' broadcasting.

It creates a new opportunity, in the digital age, to deepen and extend the traditions that I have been talking about this evening.

My vision is that this new engagement layer will ultimately form the basis of a renewed civic engagement with public service broadcasting in the 21st century. Not, a ‘juju stick' with which to defend a position of undoubted privilege - but a revolutionary way to harness viewer engagement to directly support and fund British originality and creative endeavour - to continue to take the risks that others dare not take. All funded via the natural affinity of the audience towards the 4 brand - rather than through restrictive pay walls or the threat of criminal fines.

By harnessing the potential of the new connected TV environment, we plan for this deeper message to become part of everything that reinforces and expands the public's understanding of why we are here and what we are for. This is how we plan to remain as relevant over the next 30 years as we have for the last 30- a social enterprise for the 21st century that citizens and creative individuals alike continue to value and to prize.