Ofcom


By its charter the British Broadcasting Corporation (BBC) is intended and expected to censor the programmes it transmits. However, the BBC is regulated in part by the Office of Communications (Ofcom).

Ofcom is the regulator for the UK communications industries, replacing the Broadcasting Standards Commission (BSC), the Independent Television Commission (ITC), Office of Telecommunications (Oftel), the Radio Authority and the Radiocommunications Agency. It has responsibilities across television, radio, telecommunications and wireless communications services. Ofcom’s principal duties are to further the interests of citizens in relation to communications matters and the interests of consumers in relevant markets where appropriate by promoting competition. Ofcom’s specific duties include applying adequate protection for audiences against offensive or harmful material and unfair treatment or the infringement of privacy. From December 2003 Ofcom assumed the regulatory role of the BSC, ITC, Oftel, and the Radio Authority (collectively termed the ‘legacy regulators’).

Ofcom can impose the following sanctions: it can direct a broadcaster not to repeat a programme or advertisement; direct a broadcaster to publish a correction or adjudication (‘lesser sanctions’); or it can fine a broadcaster; and shorten or revoke a licence (excluding the BBC, Channel 4 or S4C) (‘greater sanctions’). These powers to penalise licensees and ultimately to revoke licences mean that Ofcom wields considerable influence.

The Ofcom Broadcasting Code (2009) sets out the standards which audiences are entitled to expect from broadcasters. These standards include appropriate scheduling of programmes so as to protect children; adequate protection of the public from harmful or offensive material; exclusion of material likely to encourage crime or lead to disorder; that news is presented with due accuracy and impartiality, and that due impartiality is preserved with regard to matters of political or industrial controversy or related to current public policy. Also, the Code has sections on fairness and privacy which apply to how broadcasters treat individuals or organisations directly affected by programmes.

It is a criminal offence to broadcast without a licence and the prosecution does not need to prove an intent to do so. Therefore, pirate radio stations have to keep one step ahead of the Department of Trade Inspectors, who can forfeit equipment as well as prosecute for infringements.

The Government has a power to direct that certain matters should not be broadcast on both commercial television and on the BBC. It used this power in 1988 to ban spoken comment by or in support of Sinn Fein, the Ulster UDA or any of the organisations proscribed under earlier anti-terrorism laws. A challenge to the gagging order by the National Union of Journalists (NUJ), on the basis that it infringed the right of freedom of expression in Article 10 of the Convention, failed in the House of Lords and the application was rejected by the European Commission of Human Rights.

In 1993 the Government exercised its power to control what is broadcast by proscribing the Red Hot satellite channel, a carrier of pornographic material. This was upheld after an initial legal challenge, although there may have been an infringement of EU broadcasting law. The Government even retains the power to send in troops to take control of the BBC in the name of the Crown in extreme circumstances.

Unlike newspapers which can openly propagate their own views, the television companies cannot editorialise on matters - other than broadcasting issues - which are politically or industrially controversial or relate to current public policy. Subliminal messages are prohibited and religious broadcasting is specifically controlled.

In a 2003 case before the House of Lords, the ProLife Alliance (a political party opposed to abortion and euthanasia) challenged the BBC’s decision not to show its party political broadcast, which featured disturbing images of aborted foetuses. Both the BBC and independent broadcasters are subject to a duty not to show programmes that are likely to offend public feeling, but the Alliance argued that its rights under Article 10 of the Convention should outweigh such concerns. However, the House of Lords upheld the BBC’s judgment of what would be offensive to the public, holding that Parliament had made it clear that a correct application of this standard should outweigh the right to free expression.

Ofcom’s Code on the Scheduling of Television Advertising sets out the rules for broadcasters when advertising, and also requires compliance with the Television Advertising Standards Code, issued by the Broadcast Committee on Advertising Practice (BCAP). This Code, as well as BCAP’s Radio Advertising Code, prohibits advertising on behalf of a body whose objects are wholly or mainly of a political nature of advertising which is directed towards a political end. This covers radio advertising about atrocities in Rwanda and Burundi by Amnesty International. The Index on Censorship magazine has suffered a similar ban, which was held not to breach Article 10 of the Convention.

There are limits to Ofcom’s duties. The Court of Appeal has accepted that in judging whether all the constituent parts of a programme satisfy the good taste canon, the ITC could take account of the purpose and character of the programme as a whole. The duties set out above had also to be reconciled with ITC’s other duties, for instance to secure a wide showing of programmes of merit. Channel 4 was deliberately created to provide programmes calculated to appeal to tastes and interests not generally catered for by ITV, and to encourage innovation and experimentation in the form and content of programmes. Inevitably, this can only be done in some cases at the risk of causing offence to those with mainline tastes. The requirement of impartiality in non-news programmes can be satisfied over a series of programmes and a tradition has developed of allowing more latitude to personal view programmes that are balanced by others.

The courts have discouraged legal challenges to the ITC and its predecessor, the IBA, for vetting programmes, and their decisions on individual programmes generally can only be quashed if they are so perverse as to be unreasonable. This will undoubtedly also apply to Ofcom. The BBC is now regulated, in part, by Ofcom. BBC compliance with the programme codes is regulated by Ofcom. Issues concerning accuracy and impartiality remain the responsibility of the BBC Governors.

Radio or television programmes broadcast by the independent broadcasters or the BBC can be reviewed by Ofcom. Complaints of unjust or unfair treatment or unwarranted infringements of privacy in, or in connection with, the obtaining of material included in sound or television broadcasts, may be made by a person affected. They are known as ‘fairness complaints’. Complaints cannot be made in connection with someone who has died more than five years previously, but within this period a member of the family, a personal representative or someone closely connected can make a fairness complaint to Ofcom. Written complaints can be made by anyone about the portrayal of violence or sexual conduct or about alleged failures of programmes to attain standards of taste and decency - a ‘standards complaint’ - within two months of a television programme and three weeks of a radio programme.

Ofcom cannot order the payment of any money to the complainant, but can insist on the responsible body publishing Ofcom’s findings and, more significantly, can insist on an approved summary being broadcast within a stipulated time.

The Obscene Publications Act applies to television and radio broadcasts, although since 1990 no prosecutions have been brought.
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