The scandal of Britain's libel laws and their facility for libel tourism is well known. So too is our cavalier attitude to freedom of speech. But the idea that a country with one of the worst records for press freedom and human rights could use UK broadcast regulations to challenge legitimate reporting of allegations of cold-blooded killings in a brutal civil war surely takes the UK to a new place.

Last year we broadcast a video showing nine bound and naked men, two of whom were shot, on camera, by soldiers who appeared to be wearing Sri Lankan army uniform. On the night in question I made it clear that while we couldn't authenticate this video, sent to us by a group called Journalists for Democracy in Sri Lanka, it raised matters of such importance that further investigation was warranted. The Sri Lankan high commission immediately denied the atrocities that the video appeared to show.

Two weeks later, at a news conference in Colombo, Sri Lanka said independent analysis had declared the video a fake. It mounted a high-profile global campaign to discredit the report, protesting outside Channel 4's London headquarters. The Sri Lankan government opened up a second front in the UK, filing a series of complaints with Ofcom – one for accuracy and impartiality, one for fairness and privacy. What had begun as a media campaign to try to destroy the credibility of our news report had become a private battle using the UK's broadcast regulator. It was a battle in which they were initially allowed to hide anonymously behind the confidential nature of the procedures.

Battle was spared by the findings of a UN committee which concluded that the tape did appear authentic, and dismissed Sri Lanka's analysis. Strangely, on the eve of the UN report's publication the government of Sri Lanka dropped its Ofcom complaints.

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Comment: Ofcom not exploited

8th February 2010. See article from guardian.co.uk by Chris Banatvala, Director of standards, Ofcom

Jon Snow is absolutely right when he says that Ofcom's complaints function must not be used by governments to curb … investigative reporting [to] hide from public scrutiny. But, contrary to the suggestion contained in your headline, Ofcom did not allow the Sri Lankan government to exploit our procedures, when it complained about Channel 4 News broadcasting footage of the apparent atrocities committed against the Tamils.

Ofcom has an excellent track record in defending freedom of speech for legitimate investigative journalism (for example, our decision in Channel 4's Undercover Mosque).

In this Sri Lankan case, Ofcom did not take forward the Sri Lankan government's fairness complaint and rejected its impartiality and accuracy complaint.

Ofcom has a statutory duty to ensure that broadcasters comply with the broadcasting code, irrespective of the identity of any complainant. As the Channel 4 News presenter points out – only parliament can change that.

Ofcom has welcomed the formation of a new organisation to shape, coordinate and influence European telecoms regulation.

Called the Body of European Regulations in Electronic Communications (BEREC), it is made up of 27 regulators from the European Union member states. It meets for the first time today in Brussels to elect a Chairman and Vice Chairmen, who will serve a 12 month term. BEREC replaces the European Regulators' Group, with beefed-up powers formalised under European legislation, but remains very clearly a body of independent national regulators.

The formation of BEREC is a major step forward and will improve the consistency and quality of regulation across the EU. BEREC establishes authority in the group of national regulators, working together to the common goal of serving the interests of consumers and the communications sector as a whole, said Ed Richards, Ofcom's Chief Executive.

BEREC also has an important responsibility to act as an authoritative and independent adviser to the Commission and the European Parliament on regulatory matters.

See article from ec.europa.eu

The first meetings of the Board of Regulators of BEREC and the Management Committee of the Office were held in Brussels on 28 January 2010. The 27 heads of the NRAs laid down the cornerstone for the institutional structure that will deliver the results that the legislators intended. They also discussed ways to ensure that the both BEREC and the Office will be operational as soon as possible to respond to the needs of the single market.

Although, the increased participation of BEREC in the new Article 7 procedure and the possibility to give opinions on cross-border disputes will need to wait until May 2011, the date for the transposition of the new framework to be completed, BEREC is able to carry out many tasks without the need to wait so long. BEREC is already able to:

• disseminate best practice, assist NRAs, advise the Commission, the European Parliament and the Council, and assist the institutions and the NRAs in their relations with third parties
• deliver opinions on draft recommendations and/or guidelines on the form, content and level of detail to be given in notifications, in accordance with Article 7b of Directive 2002/21/EC (Framework Directive)
• be consulted on draft recommendations on relevant product and service markets, in accordance with Article 15 of the Framework Directive
• deliver opinions on draft decisions on the identification of transnational markets, in accordance with Article 15 of the Framework Directive
• be consulted on draft measures relating to effective access to the emergency call number 112
• be consulted on draft measures relating to the effective implementation of the 116 numbering range
• deliver opinions on draft decisions and recommendations on harmonisation, in accordance with Article 19 of the Framework Directive
• deliver opinions aiming to ensure the development of common rules and requirements for providers of cross-border business services
• provide assistance to NRAs on issues relating to fraud or the misuse of numbering resources within the Community in particular for cross-border services
• monitor and report on the electronic communications sector
• issue reports and provide advice and deliver opinions to the European Parliament and the Council, on any matter regarding electronic communications within its competence.

Shock jock Jon Gaunt, who was sacked after calling a councillor a Nazi live on air, has won permission to bring a High Court challenge against the media watchdog, Ofcom.

Gaunt - known as Gaunty - lost his job with Talksport in November 2008 following the exchange, which involved a discussion about Redbridge Council's decision to ban smokers from becoming foster parents.

The presenter, who was in care as a child, was sacked after calling councillor Michael Stark a Nazi and an ignorant pig live on air, and prompted several complaints from listeners.

When Ofcom upheld the complaints under the broadcasting code of practice, Gaunt launched an appeal, claiming his fundamental right to free speech and to criticise a professional politician had been infringed.

At a hearing at the High Court, the presenter was granted permission to bring an appeal against Ofcom. He said: The right of every British citizen to speak his or her mind, free of the fear of sanction from faceless government-appointed bureaucrats is a right that we must all protect and preserve.

Ofcom overstepped its remit in my case, and infringed the free speech which I, and every other British citizen, has enjoyed since the time of Magna Carta.

Gaunt is being supported by the civil rights group Liberty, whose director, Shami Chakrabarti, he once labelled Britain's most dangerous woman.

Top Shelf TV, 17 September 2009, 16:45

Top Shelf TV is owned and operated by Playboy TV UK/Benelux Limited. Top Shelf TV is a televised interactive chat channel available freely without mandatory restricted access. The channel is situated in the adult section of the Sky Electronic Programme Guide (Sky EPG) on Channel 911. Viewers can call a premium rate telephone number and talk to onscreen female presenters. The presenters generally dress and behave in a provocative and/or flirtatious manner.

On 17 September 2009 routine Ofcom monitoring raised concerns about some material broadcast on Top Shelf TV before the watershed at 16:45. A woman, dressed in skimpy black underwear, stockings, suspenders and stilettos repeatedly lay on her back facing the camera with her legs spread wide apart for prolonged periods of time. While doing so she repeatedly thrust her groin area in close-up to camera as though miming intercourse, and stroked and caressed her body in a sexually provocative manner. This material was presented with background music.

Given the time of broadcast in the late afternoon and that it was available without any access restrictions,

Ofcom considered Rule 1.3 (children must be protected by appropriate scheduling from material that is unsuitable for them).

Ofcom Decision: In breach

The behaviour of presenters for daytime chat services must not at any time appear to mimic or simulate sexual acts before the watershed. In this case the female presenter dressed in skimpy underwear adopted various sexual positions including lying on her back with her legs wide open for prolonged periods of time and thrusting her groin repeatedly in close up to camera as though miming sexual intercourse, while stroking her thighs and buttocks. In Ofcom's opinion the sexual imagery shown to viewers had no editorial context other than sexual stimulation. It was therefore not editorially justified. In Ofcom's view the repeated actions and sexual positions of the presenter were intended to be sexually provocative in nature. In light of this behaviour, together with its lack of editorial justification, in Ofcom's view (and admitted by Playboy) this material was clearly unsuitable for children.

Given the sexual nature of the content, the location of the channel in the adult section of the EPG and its scheduling at 16:45 were not sufficient to provide adequate protection to prevent children from viewing this material. Ofcom has repeatedly made clear that the location of a channel in the adult section of the Sky EPG, available freely without mandatory restricted access, does not in itself provide adequate protection to under-eighteens from inappropriate material. Therefore the material breached Rule 1.3

Live 960, 11 September 2009, 22:00

Live 960 is owned and operated by Hoppr Entertainment Limited (Hoppr Entertainment). Live 960 is a daytime chat and adult sex chat channel service available freely without mandatory restricted access. The channel is situated in the adult section of the Sky electronic programme guide (EPG). The channel broadcasts programmes after the 21:00 watershed based on interactive adult sex chat services: viewers are invited to contact onscreen female presenters via premium rate telephony services (PRS). The female presenters dress and behave in a sexually provocative way while encouraging viewers to call the PRS telephone line.

A viewer complained about the strong adult content shown during this broadcast. This showed two presenters carrying out a number of sexual acts on each other. At various points in the broadcast the presenters were wearing skimpy thongs and tops that were open to reveal their breasts, spitting on each other's knickers and licking each other's breasts, and were shown touching and apparently licking each other's genital areas. The broadcast included prolonged and close up shots between the presenters' legs while simulating masturbation. It also included an image of one of the presenters moving her thong to one side to briefly reveal her genitals, while the other simulated the performance of oral sex on her.

Ofcom considered rules:

• 1.24 (-1-) ('adult-sex' material)
• 2.1 (generally accepted standards)
• 2.3 (material that may cause offence must be justified by context).

Ofcom Decision: Breach of Rules 1.24, 2.1 and 2.3

Rule 1.24 requires adult-sex material to be broadcast only between 22:00 and 05:30, and then only if mandatory restricted access is in place.

Ofcom noted that the broadcast material complained of showed the two presenters apparently performing oral sex and masturbation on each other (head between legs, licking and touching other presenters' genital areas). In Ofcom's opinion, a viewer could reasonably have perceived some of these sexual acts as real. The presenters were also shown spitting on and licking each other's knickers and one presenter very briefly showed her genitals. Ofcom considered that these images broadcast during the programme were clearly of a strong sexual nature and that the primary purpose of this material was sexual arousal or stimulation.

In Ofcom's view this content had insufficient editorial or contextual justification to allow its exceptional transmission without mandatory restricted access on free-to-air television. This content was, in Ofcom's view, adult-sex material and its broadcast was in breach of Rule 1.24, which requires such material to be broadcast only after 22:00 with mandatory restricted access. The broadcasts were therefore in breach of Rule 1.24 of the Code.

Ofcom considered that factors such as its location in the adult section of the EPG and the content being broadcast after 21:00 did not justify the broadcast of this material in this instance. Ofcom also notes the possibility of viewers (and in particular children) at this time coming across this material unawares. Ofcom therefore concluded that this content was not justified by the context and was therefore in breach of Rules 2.1 and 2.3 of the Code.

Ofcom notes the compliance measures taken by the broadcaster in response to the transmission of the material. However, given the strength of the content broadcast, Ofcom considered this contravention to be a serious breach of the Code. Ofcom notes that Hoppr Entertainment has been operating a licence for Live 960 since 19 August 2009 and since that time it has been found in breach of its licence conditions and of the Code on separate occasions. Given this, Ofcom is now requiring the licensee to attend a meeting at Ofcom to discuss its compliance procedures. Ofcom also puts Hoppr Entertainment on notice that it must take all necessary and appropriate measures to ensure its channels comply with the Code in the future. Ofcom will not expect further breaches of this nature to occur again.