Ofcom broadcasts changes

Following a recent consultation, Ofcom has updated its general procedures for handling complaints, investigations and sanctions on TV, radio and on-demand programme services ("ODPS").

Background

At the start of 2017, in parallel to preparing documentation for regulation of the BBC by virtue of the new BBC Charter and Framework Agreement, Ofcom also reviewed its procedures for handling content standards and licensing investigations and sanctions, as they apply to all other broadcasters and ODPS (together the "Commercial Broadcasters").

Revised procedures

Following a consultation with the Commercial Broadcasters, Ofcom issued revised general procedures for the following:

investigating breaches of content standards for television and radio;
considering and adjudicating fairness and privacy complaints;
investigating breaches of broadcast licences;
considering statutory sanctions for breaches of broadcast licences;
investigating breaches of rules for ODPS; and
considering statutory sanctions arising in the context of ODPS.

These new procedures came into effect on 3 April 2017.

Statement on consultation responses

The statement issued by Ofcom following the consultation highlights the main issues raised by those responding Commercial Broadcasters, along with Ofcom's responses and final decisions on the changes to procedures.

The key issues raised were:

Departure from Ofcom's procedures. Ofcom's standard procedures may be departed from in certain circumstances (for reasons of fairness by way of example), however Ofcom will not routinely seek Commercial Broadcasters' views prior to deciding whether to depart from these standard procedures.
Decision to investigate. It is for Ofcom to determine whether a complaint raises substantive issues that warrant investigation based on the gravity / extent of the issues raised (a non-exhaustive list of issues warranting further investigation are set out in the procedures).
Applicable rules. Where a complaint is received about a "catch-up" ODPS and the material has recently been shown on a television service, it may be more appropriate for Ofcom to consider the complaint in light of the television broadcasting procedures, which are more extensive.
Provision of information by Ofcom. Other than in relation to fairness and privacy procedures, Ofcom may disclose details of a complainant to the Commercial Broadcaster, unless the complainant specifically requests anonymity. Requests for anonymity will be considered on a case by case basis.
Representations to Ofcom.
- Where the facts of a case are clear, Ofcom will not necessarily seek representations from the Commercial Broadcaster before forming a preliminary view. However, Ofcom will no longer consider "flashing image" incidents as a matter of objective fact as different equipment can produce different results.
- Rather than stipulating specific criteria, Ofcom will consider requests from Commercial Broadcasters to make oral representations in response to a preliminary view, on a case by case basis.
- After it has made the decision to investigate, Ofcom will not normally seek further representations from complainants, except in cases relating to fairness or privacy.
Decision making. Ofcom has implemented its proposals on the role of the Ofcom Content Board and Senior Executives. The final decision maker will be independent from the investigation and the formation of the preliminary view.
Notice of decision. Ofcom has not made any changes to the way it communicates its decisions and the pre-publication notice period will remain as one working day.
Fairness and privacy investigations. Ofcom will continue to consider fairness and privacy issues without needing a complaint from "the person affected" in exceptional circumstances. For clarity, Ofcom has updated the procedures to state that a preliminary view on a fairness or privacy complaint is only provisional.
Publication of the outcome of investigations. Ofcom has not made any changes to its standard procedures. It will continue to publish details of complaints it has assessed but not pursued.
Right to appeal and statutory sanctions. Ofcom will not be starting an internal review or appeal mechanism. An external method of review or appeal would be a matter for legislation, although Commercial Broadcasters may be able to challenge Ofcom's decisions via judicial review.
The Consultation Process. Ofcom will endeavour to provide a mark-up of proposed amendments when it provides further consultation documents.

In practice

Commercial Broadcasters should ensure they are aware of the changes to the various procedures for handling complaints, investigations and sanctions and that their own policies and procedures are updated accordingly to ensure consistency.

This article was written by Caroline Young and Leah Rushton. For more information, please contact Caroline on +44 (0)20 7203 5381 or caroline.young@crsblaw.com, or Leah on +44 (0)20 7203 5389 or leah.rushton@crsblaw.com