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1. Freedom of expression is an essential human right. It is the right to hold opinions, to receive information and ideas and to impart them.

2. Broadcasting and freedom of expression are intrinsically linked. The one is the life blood of the other. Nowhere can that tension between the right to freedom of expression and its restriction be more acute than in drawing up a Code which seeks to regulate broadcasting.

3. All regulation in the proposed Code must be prescribed by law and necessary in a democratic society. Unnecessary regulation should not be in this Code. Rules cannot be made at the whim of a regulator.

4. Regulation should be transparent, accountable, proportionate, consistent and targeted only at cases where action is needed. That is a requirement of the Act but it is also part of the test Ofcom has to apply in restricting freedom of expression.

5. So what is necessary? In drawing up this Code Ofcom has not started with the Codes of the legacy regulators but has instead started with the law.

6. The sections into which the proposed Code is divided are primarily drawn from sections 319(2) of the Act and 107 of the 1996 Act. The section on Election and Referendum reporting, which mainly deals with the coverage of UK elections and referendums, is also based on the PPERA and the RPA. The proposed Code also implements certain aspects of the TWF Directive.

7. The regulation in each section seeks to protect viewers and listeners. But it must also be consistent, where possible, with promoting choice and competition. Choice and competition benefits listeners and viewers, as both citizens and consumers, as well as benefiting the broadcasting industry. Ofcom is required to foster plurality, promote cultural diversity, promote informed citizens and support innovation, creativity and investment. In considering the necessity for regulation Ofcom must have all these in mind.

8. It is also important, as different media converge, to regulate television and radio in the same way wherever possible. Sometimes, however, different legislation means we have to treat television differently. But we have not proposed to increase the regulatory burden on radio which has traditionally been regulated with a lighter touch.

9. The Act also lists certain considerations that Ofcom has to take into account, to the extent it considers relevant, in setting standards. This list, which is contained in section 319(4) of the Act, is so important that it has been included in the proposed introduction to the Code itself. For example, it says the likely expectation of the audience should be taken into account: the expectation of the audience will vary from service to service, and programme to programme. Broadcasters are in the best position to know their likely audience and to be able to alter the audiences' expectations by various means such as scheduling, publicity, presentation introductions, format and so on.

10. We have considered, in drawing up this proposed Code, whether it is necessary to set a rule which applies across all broadcasters equally. An example of such a rule would be that no material should be broadcast which incites crime. Where such specific rules are not necessary, we have then sought to set rules which can be interpreted differently by different broadcasters and in different circumstances, e.g. that broadcasters must provide adequate protection for viewers and listeners from the inclusion of harmful or offensive material in television or radio programmes.

11. Interpretative rules of this nature also allow for the possibility of increased media literacy and labelling by broadcasters.

12. The introduction to the proposed Code (section 3 of this consultation) explains how the Code should be used and the difference between principles, rules, meanings and guidance. That explanation is not included here. Moreover, the background to each part of the Code is explained in each section. However, there is an essential difference in the way sections 1 and 2 of the Code (sections 4 and 5 of this consultation) have been approached which it is worth explaining here.

13. Section 1 of the proposed Code (section 4 of this consultation) deals with the protection of the under eighteens. The Act requires Ofcom to have as a standards objective that 'persons under the age of eighteen are protected'. This wording is uncompromising. Ofcom has approached this section, where necessary, with a precautionary approach, particularly with regard to children (defined here as the under fifteens). This contrasts with section 2 of the proposed Code (section 5 of this consultation) which deals with harm and offence. Material that might be regarded as harmful or offensive must be judged against 'generally accepted standards' and 'adequate protection' must be provided against the inclusion of such material. The wording in the Act is qualified and so Ofcom has approached this section with these qualifications very much in mind. It is necessarily less restrictive than section 1 of the proposed Code.

14. As listeners and viewers exercise choice in a digital and multi-channel environment, it is important to allow broadcasters as much freedom as is consistent with the law to differentiate between services and offer choice to their audiences. The Act clearly envisages both audiences and broadcasters taking more responsibility for what is broadcast on the one hand and what is received on the other. The regulation that Ofcom provides in this Code should include the minimum standards required by law. We have only set more restrictive rules for specific descriptions of services where this can be justified. Otherwise it allows broadcasters to manage their own standards and enable them to differentiate their services for their viewers and listeners.

15. In a creative industry such as broadcasting, freedom of expression will always mean that there will be a certain level of complaints as broadcasters explore fresh areas and boundaries. The existence of complaints is no bad thing. If there were no complaints at all, it would indicate a level of self censorship by broadcasters and an unwillingness to experiment with form and content by broadcasting challenging and provocative programmes, both of which would be unhealthy in a democratic society and ultimately deny audiences the benefits of choice to which they are entitled.

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