AN independent TV producer has begun legal proceedings to stop the new BBC Scotland channel’s news service. David Henry has taken the action against Ofcom on the grounds the regulator has failed in its statutory duty to prevent any broadcaster having undue influence on public opinion.

The Competition Appeal Tribunal is due to hear the case in January and if it rules that Ofcom is in breach of its duty the launch of the new channel could be delayed until a full review can be carried out.

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Henry claims he has already been threatened he will be liable for Ofcom’s costs if he loses but is confident of a ruling in his favour.

“It could ruin me but I am unlikely to lose and if I do it will be a total outrage,” he told The National. “I don’t have a pot of money but sometimes you have to stand up for what you believe in.”

The National:

The hearing on January 10 will be the culmination of a year-long fight by Henry to have Ofcom take the issue seriously.

In the meantime, STV has closed its STV2 news programme with the channel’s bosses giving the launch of the new BBC channel as one of the reasons.

The new BBC channel is to be broadcast for 12 hours a day with a news bulletin running for an hour at 9pm.

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It is this programme, and not the new channel per se, that is the issue, according to Henry, who argues that as the BBC already has 42% of the market share for news in Scotland and the new programme will take this up to around 50%.

During the public consultation into the new channel, Henry launched a petition which was signed by 722 people calling for the regulator to conduct a full competition review on the grounds that the BBC already had over 40% of the market share of news and current affairs in Scotland.

He believes more people would have signed the petition had the issue been given more publicity but, as it was, many of those who did hear about it mistakenly thought the petition was against the channel itself rather than the plan for the BBC to run the new hour-long news bulletin.

“My submission to Ofcom during the consultation and before the decision to allow the new channel raised the issue of media plurality as Ofcom has a duty to ensure no one organisation can have too much control of media that is likely to affect public opinion,” said Henry.

“When Rupert Murdoch wanted to buy Sky, Ofcom looked at it and said it would mean he would have 10% of news across all platforms which they deemed was too high.

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‘‘This caused Ofcom to recommend deferring the merger to the competition authorities and Murdoch was ultimately refused.

“Now the BBC has 42% market share of news in Scotland so how can that possibly be in the public interest for them to launch another channel in Scotland that will have an extra hour of news? In the meantime another news provider has closed down, which clearly raises competition issues. Instead of the Scottish audience having extra choice they are going to end up with less choice. We will just get the same stories and same angles on BBC Scotland that we already have.

“Ofcom’s main duty is to ensure a wide range of voices in the communications market and specifically in news and current affairs ... so how come the BBC is treated differently? They should be treated the same.”

Henry said his case was not about censorship but about the fact that “the same group of people are making the same content which is being broadcast on different platforms and no other point of view is being made” which he argued is not in the interests of a functioning democracy.

“I don’t think people realise how important the issue is,” he said. “This is not about the new channel itself. If the BBC was to pull the 9pm news and contract it out to an independent news producer – preferably one that has not got a big market share – then that would be fine.”

He added that with the future unclear for STV the BBC could end up with an even bigger share of the market.

“We have to get the BBC round the table and agree a change of plan because this cannot be healthy in a democracy. Ofcom said in its report on the new channel that there would be some damage to the competition by the new channel but it was difficult to quantify ... although now we know about STV2.

“It said the new channel would be extra value for licence payers but it is not its job to rule on public value but to rule on public interest which is not the same. It is not in the public interest that the BBC launch another service – it is in fact against it.

Henry said that if he wins it would have wider implications for the BBC.

‘‘If Ofcom has to re-examine its decision it will open a can of worms as it will have to run the same test every time the BBC wants to do something and at the moment it doesn’t.”

An Ofcom spokesperson said: “Our decision to approve BBC Scotland was made after carefully considering all the evidence, and responses from interested parties.”