YouTube Thinks It's Ofcom

As many of you know, early Tuesday morning, YouTube deleted TalkRADIO UK’s entire YouTube channel. As I have a weekly “spot” on it (every Thursday at 11 am with Mike Graham) where I discuss books, arts, and litigation, I found this alarming. Neither presenters, management, nor in-house counsel were informed, and Julia Hartley-Brewer, the breakfast DJ, walked into the studio to be confronted with a missing YouTube stream. TalkRADIO’s Twitter and Facebook streams, plus normal radio broadcast throughout the country, remained unhindered.

By Tuesday evening — after interventions from Michael Gove and a formal statement from Ofcom putting as much distance between it and YouTube as possible — TalkRADIO’s channel had been reinstated.

As the story unfolded through the day, it became clear that the deletion was based on TalkRADIO’s criticism of government policy, particularly lockdowns in response to COVID-19. I happen to be aware that this was the station’s third “strike”. It is possible it was caused by a campaign of mass-reporting; TalkRADIO’s lawyers told the BBC that Ofcom has never flagged any of its COVID-19 content.

This raises legal issues on both sides of the pond. In a UK context, YouTube is purporting to do Ofcom’s job. Ofcom is the UK’s media regulator, and mandates — across both television and radio — requirements of impartiality, balance, and decency. If you’re an American reading this, imagine a public body designed to impose something a bit like your country’s historic Fairness Doctrine plus basic public morality (“no sex please, we’re British”) on broadcasters. Ofcom regulates TalkRADIO (and all other UK broadcasters, including the BBC, LBC, Channel 4, Sky, and ITV).

Ofcom has the power to sanction TalkRADIO if broadcasting guidelines are breached. That means, if — for example — it interviews an anti-vaxxer or Holocaust denier or someone who thinks Bill Gates is plotting to microchip us all, Ofcom would step in and probably review its broadcasting licence (insert relevant “oi, you got a loicence for that radio station?” gag). Relatedly, Ofcom would also step in if a presenter dropped the c-bomb or n-bomb on air or suggested that 14-year-olds could consent to sex with their teachers. Producers joke about “the Ofcom button” in studios around the country, but it acts as emergency brake when an interviewee or caller goes off the rails during live shows.

Ofcom is, for all its faults, accountable to Parliament and administered in a transparent way. When YouTube deletes content Ofcom has approved, it is purporting to do HM Government’s job while claiming it has higher editorial standards. That said, it is possible — given the dreadful parochialism that exists in the US — that YouTube did not, until yesterday, realise Ofcom exists. YouTube’s behaviour is particularly egregious when one considers UK broadcasters can also be sued for defamation (libel, slander) and intellectual property breaches, while YouTube cannot (with limited exceptions in the area of copyright).

If YouTube has an editorial policy (in this case, in support of lockdowns as a policy response to COVID-19, because there has been no anti-vaxxer or conspiracist material on TalkRADIO to attract Ofcom’s attention) then YouTube should be treated as a publisher in law, and not simply as a place that hosts other people’s content. At the moment it is not, while the BBC, Times, LBC, Spectator, Guardian, and, yes, TalkRADIO all are.

If YouTube is treated as a publisher, however, it will be liable for user-generated content, which on a vast site like that will be almost impossible to manage without hiring armies of editorial staff and lawyers. It will also be regulated by Ofcom, like other UK broadcasters, meaning it would be vulnerable to having its licence pulled (or other sanctions) for breaches. This would delight traditional media (not just broadcasters) by levelling the competitive playing field. YouTube currently enjoys considerable economic advantages over its competitors thanks to protection from most lawsuits.

This is coupled with the widespread problem of Americans being unaware that other countries also have laws and do things differently.

Helen Dale won the Miles Franklin Award for her first novel, The Hand that Signed the Paper, and read law at Oxford and Edinburgh. Her most recent novel, Kingdom of the Wicked, was shortlisted for the Prometheus Prize for science fiction. She writes for a number of outlets, including The Spectator, The Australian, and Standpoint, and has a weekly spot on TalkRADIO with Mike Graham. She lives in London and is on Twitter @_HelenDale