Do it first, make trouble and inspire change” is not the kind of maxim adopted by many lawyers. Not in their professional lives, at least, where conservatism often seems as entrenched as risk-taking is rare. But Jan Tomalin, soon to be controller of legal and compliance for Channel 4, has a fidelity to doing it first, making trouble and inspiring change that might be a little worrying, were it not an integral part of her job description.
Tomalin has been head of legal and compliance at Channel 4 since 1992, but is stepping up to a new role as controller on 1 January 2004. The subtle differentiation in designation signifies a fusion of legal and editorial roles that is unprecedented in broadcasting. In effect, Tomalin’s creative skills are being formally recognised as being just as important as her legal brain. This is, no doubt, the reality of life for many lawyers involved in the pre-broadcast process, but in keeping with its mantra Channel 4 is the first broadcaster to break new ground and establish a role that deliberately blends what to some lawyers, not to mention journalists, are mutually exclusive concepts: creative thought and legal analysis.
As Tomalin puts it: “The old saying in media law is that ‘lawyers advise and editors decide’. But at Channel 4 it’s impossible to give legal advice without stepping into editorial territory. There is a huge crossover and all the lawyers here have to work very closely with producers and programme-makers, probably far more than newspaper lawyers do with journalists. To do the job well, you have to have a creative drive that wants to push boundaries.”
Pushing boundaries is, of course, what Channel 4 does best. Hot on the heels of the controversy caused by its screening of illusionist Derren Brown’s Russian roulette stunt was Pornography: The Musical, a documentary about the UK sex industry, in which women in the business sang about their lives. The director behind it, Bafta-winning Brian Hill, admitted that the documentary would shock viewers, but denied that it was “in any way salacious or titillating”. Hill, whose last documentary was Feltham Sings, in which young offenders also sung about their lives, says that Pornography: The Musical might have been “difficult and unpalatable”, but insists that he was setting out to show what working in the sex industry is really like.
Hill has a staunch supporter in Tomalin, who says of his documentary: “It’s an extraordinary work of breadth and daring, stylish and, yes, shocking. It shows real people talking about what they do and provides a remarkable insight into the sex industry.”
But is it not fodder for the Daily Mail? The paper’s charge that the then chief executive of Channel 4 Michael Grade was the UK’s “pornographer-in-chief” is regularly redirected at the channel’s output. Again, Tomalin unhesitatingly adopts the company line: “As a groundbreaking channel, our remit is to get people talking about things. And I think that with the warnings accompanying the programme, and given its title, viewers were in a position to know what they would get.”
Tomalin has a team of five lawyers who advise on editorial and compliance issues, and is currently in the process of recruiting a sixth (the advert for the role played on the Derren Brown show with the tag ‘Help us get away with murder’). As controller of legal and compliance in the new year, she will step away – a little – from providing the day-to-day advice on programmes.
As David Scott, the channel’s deputy chief executive, says: “In her new role, Jan will advise on fewer programmes directly and spend more of her time on a strategic overview of content-related issues, although she will still advise on the most sensitive programmes, particularly those from current affairs.”
On a daily basis, the legal problems cropping up involve defamation, contempt of court and reporting restrictions, as well as compliance with the Independent Television Commission (ITC) codes. Breach of the ITC codes – which impose a range of stipulations as to taste and decency, impartiality in news reporting and investigative film-making, among other things – can lead to severe consequences. The ITC can fine a commercial broadcaster and require the broadcast of an on-screen apology or correction.
However enmeshed in the creative process a Channel 4 lawyer can become, for Tomalin, the regulatory regime must never be forgotten. “All broadcasters take compliance very seriously,” she says. “At Channel 4, although the brief is to take risks, we have to do so responsibly. So, for example, we had to be confident that the Derren Brown programme didn’t glamorise guns or dangerous activity, and think very carefully about the message conveyed to our viewers.”
Likewise the compliance procedures for a hit such as Big Brother – a “huge project”, according to Tomalin – entailing live streaming to the corporation’s website and its E4 entertainment channel, as well as text messaging and digitally-based services, on top of the basic terrestrial broadcast. Tomalin was instrumental in setting up the system by which Big Brother would be looked after by her lawyers, but found that often they were confronted by dilemmas that had their foundation less in the law and more in ethics. “Often we’d have to ask, ‘Is it right to show this?’, on occasions when there may not have been a legal reason not to,” says Tomalin.
Only rarely, it seems, does Channel 4 find itself in the courts. “We don’t have much litigation, which is how I like it,” says Tomalin. When there is a claim, Tomalin turns to a tried and trusted group of external lawyers. Upon qualifying as a solicitor she worked with Susan Aslan at DJ Freeman, whom she has continued to instruct throughout the latter’s career at DJ Freeman and on to her current role with Olswang. The two other lawyers regularly used are Razi Mireskandari of West End firm Simons Muirhead & Burton and Louis Charalambous of niche criminal, employment and public law firm CCL. Among her favoured counsel are Jonathan Caplan QC of 5 Paper Buildings, and Adrienne Page QC and Matthew Nicklin, both from 5 Raymond Buildings.
When she becomes controller of legal and compliance, Tomalin will be free to work more closely with editorial colleagues at an earlier stage in programme-making, and will also devote more time to behind-the-scenes strategy, for example in assessing risk and film-makers’ safety when filming in dangerous locations. She will also have the minor problem of helping Channel 4 adjust to a wholly new regulatory regime: on 29 December, the new communications super-regulator Ofcom comes into being, which will absorb the functions of the ITC, the Broadcasting Standards Commission, Oftel, the Radio Authority and the Radiocommunications Agency; among broadcasters there is a fear that it will not regulate with a light touch.
Tomalin confirms that Channel 4 has been engaged in an ongoing dialogue with Ofcom as to how it will operate. With many of the existing regulators being “parachuted” into the one super-regulator, Tomalin says she sees Ofcom as being “an exciting opportunity to start afresh”. She adds that it would be no bad thing if the existing broadcasting codes were ripped up and redrafted, with input from what is now a mature industry, one which should have more of an incentive to adopt a mea culpa stance if appropriate. “We need clear, concise principles for regulation, which should enable broadcasters to be more grown-up, instead of a series of incrementally drafted and reactive codes.”
Meanwhile, before she gets down to business in her new role, Tomalin is off to Australia and New Zealand to indulge her passion for scuba diving. On her return, a brave new broadcasting world awaits her. And it is one to which there could be few people better suited – as her employers have recognised.
Controller of legal and compliance (from 1 Jan 2004)
Channel 4 Television Corporation
|Organisation||Channel 4 Television Corporation|
|Controller of legal and compliance (from 1 Jan 2004)||Jan Tomalin|
|Reporting to||Deputy chief executive David Scott|
|Main law firms||CCL, Olswang and Simons Muirhead & Burton|