Ofcom’s Un-Fairness Committee

John Stonborough asks ‘After a Ruling that destroys the Right to be Heard – Is it Time to Overhaul the Ofcom Standards and Fairness Complaints Process?’

In a telling scene in the new Stieg Larsson film, The Girl Who Played with Fire, investigative reporter Micke Blomkvist insists that the targets of a Millennium investigation into people trafficking, must be contacted for comment before publication.

As you’d expect most fetch up dead, but as asking for a comment or interview is what journalists do, it may come as a surprise that there is no obligation to contact the subject of an investigation in the UK.

A commonly cited reason (for not contacting people) is the supposed threat of injunction; grossly over-stated in my experience. But Editors usually insist the reporter ‘put a call in’, even if the reporter doesn’t really need to, or sometimes want to, hear the answer. The risk if they don’t, according to former Sunday Telegraph Editor Dominic Lawson, is that “the newspaper’s position is much weaker, legally, if it then publishes something which is untrue”.

Radio and TV are different. The convention enshrined in the Ofcom Code (which applies to both BBC and ITV) says broadcasters must avoid unfairness. In fact it pays dividends to read the whole of Section 7 which is all about contributors’ rights.

But most crucial is 7.11 which states. “If a programme alleges wrongdoing or incompetence or makes other significant allegations, those concerned should normally be given an appropriate and timely opportunity to respond.” This applies in particular to investigations by hostile TV programmes. BBC Panorama, C4 Dispatches fall into that category.

There is a PR maxim that says ‘the later they approach you, the worse the story will be; and the less they tell you, the worse the story will be.’ So when corporate PRs get wind of an investigation, but no reporter gets in touch or they have to kick the information out of them, alarm bells shrill.

Now everyone needs to sit up and take notice. The regulator Ofcom has validated the decision by a programme maker to be economical about content even, in one case, after they failed to contact the target at all.

Cast your mind back to October 2009 when Channel 4 Dispatches ran an hour long programme, made by Blakeway Productions, called What’s in Your Breakfast. It was an attack on health claims made by cereal manufacturers about their products. Whether the programme was right, partially right or plain wrong is not at issue. What matters is why there were no interviews or even a quote from Nestlé, Kellogg’s and others?

ofcom.jpgThe question Ofcom was asked to address was whether Nestlé and Kellogg’s should have been allowed to contribute to the programme. If yes, then they were entitled to be dealt with ‘fairly’ (7.3).

The Office of Non-Communication

Months went by. Then last week, fairness and common sense took a hit below the waterline when Ofcom ruled they were not ‘a contributor’ and handed Dispatches carte blanche to treat future targets unfairly. If you don’t believe it read the three adjudications (Ofcom Broadcast Bulletin 164 – 23/08/2010) .

The key to this is the word ‘contributor’. Dispatches asked the manufacturers some questions, but it now seems, intentionally, never asked them to contribute (by interview or statement); thereby avoiding having to inform them in advance about the content.

This debate goes back more than 10 years, when the ITC (grandfather to Ofcom) stopped talking about ‘interviewees’ and introduced the notion of a ‘contributor’. The issue then as now, was how much information about the investigation, programme makers were obliged to provide individuals or organisations directly affected.

Restricting it to interviewees only, put the target in a Catch 22. First they had to agree to do an interview, before anybody would tell them what the interview was actually about. This was grossly unfair. Hence the change, in part at my insistence, to ‘contributor’.  Anybody directly affected could agree to contribute, but hold fire on an actual interview, while they assessed the evidence the programme makers wished to confront them with. It was imperfect, but a lot fairer. Programme makers have never liked it of course.

And so it remained, until last week.  In the lengthy ruling, in which Nestlé and Kellogg’s had complained that they were not given a proper opportunity to respond; Ofcom said there was no requirement on the programme-maker to offer such an opportunity because “no significant allegations of wrong-doing” were made about either cereal manufacturer.

Ignore for a moment that Ofcom has mis-quoted the wording of Section 7.11 (see above) – surely, any critical commenton national TV about a product, especially foods consumed by half the world’s children, manufactured by two of the world’s most famous companies, is significant, and they should have been granted all the rights accruing to a contributor, including a timely and proper opportunity to respond.

You could argue that the viewer might have liked to hear what these giant manufacturers had to say. Instead they were shut out. Their input largely ignored. Their protests dismissed. Were it not so serious, one might have laughed when Channel 4’s lawyer Stephen Collins brushed off one short (two paragraph) rebuttal statement as “verbose and self-serving”.

As you can imagine there is more to this story. I sense a degree of ‘Regulator Capture’ by C4, but have no evidence of it. But perhaps instead of worrying about one adjudication, no matter how bizarre and perverse, the real problem is with the Ofcom Fairness and Standards process. It has become a legalistic, bureaucratic monster, where terror of Judicial Review eclipses common sense and fairness.

In December Ofcom quietly changed the rules. No longer is there an option for a complainant to have ‘their day in court’ – the tribunal hearing just vanished. Now all decisions are made in conclave by a committee. Who they are, we don’t know. Have they read everything, one can only hope. What we do know is they base the decision on a rinsed version of the original complaint.

It is time for a new complaints process; something more akin to the old Broadcasting Complaints Commission. In the meantime Channel 4 should take no comfort from this Ofcom ruling. Dispatches got away with injustice, that’s all. (c)JTCS2010

About JS

John Stonborough FCIPR specialises in media relations, providing an authoritative and discreet advocacy to corporate and private clients world-wide. He specialises in handling the hostile media and media regulation. He is known for observing "An interview is no time for an original thought." He is the great-nephew of the philosopher Ludwig Wittgenstein. His working career began as a London policeman and then as a reporter for the Daily Mail, BBC Radio 4, Thames Television and Channel 4 TV. From 2001 to 2004 he was The Media Advisor to the House of Commons Commission. He is a Fellow of the Chartered Institute of Public Relations. He is married and lives in London, England. www.stonborough.com
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