By Professor Lorna Woods
This post originally appeared on the City Legal Research blog.
The Leveson Enquiry is focussing, understandably enough, on the regulation on the press, but there are more general issues which at some point will need to be addressed. One of these is the question of whether Sky, as part of the Murdoch media empire, is a ‘fit and proper person’ for the purposes of the Broadcasting Act (News Corporation holds 39.14% of the shares in BSkyB). S. 3 of the Broadcasting Act 1990 and s. 3 of the Broadcasting Act 1996 impose a duty on Ofcom to ensure that broadcasting licences (whether radio or television) are held by fit and proper persons.
This duty is ongoing and does not apply just at the time of the grant of the licence. It is therefore possible that a licence may be removed from a person if that person ceases – in Ofcom’s opinion – to be fit and proper. The person in question is the holder of the licence – so the person may be a corporate body. Ofcom will take into account the actions of controlling directors and shareholders, as well as the actions of the licence-holder itself and any determination could affect all licences held by that body.
While this much is clear from the Acts, the scope of ‘fit and proper’ is much less clear-cut, at least in the broadcasting context (other regulators have come up with their own definitions). Here, note that it is not defined in the Broadcasting Acts although presumably the categories of persons prohibited from holding a broadcasting licence do not trigger the fit and proper test. In general, it would seem to be a question for Ofcom – in satisfying itself that the requirements of both s. 3s are fulfilled – that will determine the question.
