I’ve had a very positive response to my last blog “Ofcom’s Unfairness Committee”, with the link re-tweeted on Twitter to over 10,000 PR and Media people! It’s obviously struck a chord; In particular I want to share this note from Susan Barty, a partner with leading London law firm CMS Cameron McKenna LLP, who writes: 
I agree, it is a nonsense that Dispatches can choose not to contact them or ask them to take part, trash them in the programme, and then try and rely on the fact that they were not contributors.
1. Under the Reynolds guidelines, in order to benefit from the qualified privilege defence, the media should be seeking comment from the subject of any story, unless the matter is particularly urgent, or if there is real reason not to do so.
2. There are two distinct issues with Section 7 of the code. First, were Nestlé, Kellogg’s and TS “contributors”? (I was very interested at your reference to “interviewee”!) Secondly, even if Ofcom choose not to regard them as contributors, were they treated fairly, in particular in relation to 7.11?
On any basis they were entitled to be dealt with fairly. The Principle at the start of section 7 states it is ”To ensure that broadcasters avoid unjust or unfair treatment of individuals or organisations in programmes” – i.e. it is not specific to “contributors” or otherwise. The Foreword to the Fairness section is also interesting: “this section contains ‘practices to be followed’ by broadcasters when dealing with individuals or organisations participating in or otherwise directly affected by programmes as broadcast.
Following these practices will not necessarily avoid a breach of this section of the code (Rule 7.1). However, failure to follow these practises will only constitute a breach where it results in unfairness to an individual or organisation in the programme.” I cannot see how Ofcom can have reached the conclusion that they were treated fairly. Even, for the moment, ignoring the position in respect of Kellogg’s and Nestlé, the conclusions in relation to TS are extraordinary – and really do make you wonder what was going on here.
3. You refer to the question of hearings, and there no longer being “an option for the complainant to have ‘their day in court’ – the tribunal hearing just vanished”. In fact it is not quite as simple as that. The procedures for handling fairness and privacy complaints say that:
“In some circumstances, Ofcom may decide to hold a hearing before reaching a decision if it considers that a hearing will advance its understanding of the case, or if it is necessary to ensure that the proceedings are fair. At the hearing, the parties will be invited to make oral representations.
Ofcom will normally give 15 working days’ notice of the hearing date to the parties. Hearings may take place in England, Northern Ireland, Scotland or Wales, as appropriate. ” They go on to provide information as to how hearings will be dealt with – i.e. that they will be in private, who can attend etc. It is just that, previously, it used to be a fairly regular practice and now they probably never consider that a hearing will advance their understanding of the case. I have made specific requests before – but have never got a hearing. (SB 7/9/10).
Thanks Susan, this is really helpful. If anybody has anything further to add - I am very keen to build up a file on Ofcom Standards and Fairness to send to the media and DCMS – please contact me john [@] stonborough.com or leave a comment in the box below.
