Editorial Standards Findings Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee December 2009 issued February 2010 Getting the best out of the BBC for licence fee payers Contents Remit of the Editorial Standards Committee 1 Summary of findings 3 Repossessed, BBC One, 6 January 2009 3 Complaints arising out of the ESC’s findings of 3 March 2009 4 Findings 6 Repossessed, BBC One, 6 January 2009 6 Complaints arising out of the ESC’s findings of 3 March 2009 16 Rejected appeals 21 General Anti-Israeli Bias 21 December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee Remit of the Editorial Standards Committee The Editorial Standards Committee (ESC) is responsible for assisting the Trust in securing editorial standards. It has a number of responsibilities, set out in its Terms of Reference at bbc.co.uk/bbctrust/about/meetings_and_minutes/bbc_trust_committees.html. The Committee comprises six Trustees: Richard Tait (Chairman), Chitra Bharucha, Mehmuda Mian, David Liddiment, Alison Hastings and Anthony Fry. It is advised and supported by the Trust Unit. In line with the ESC’s responsibility for monitoring the effectiveness of handling editorial complaints by BBC management, the Committee considers appeals against the decisions and actions of the BBC’s Editorial Complaints Unit (ECU) or of a BBC Director with responsibility for the BBC’s output (if the editorial complaint falls outside the remit of the ECU). The Committee will consider appeals concerning complaints which allege that: • the complainant has suffered unfair treatment either in a transmitted programme or item, or in the process of making the programme or item • the complainant’s privacy has been unjustifiably infringed, either in a transmitted programme or item, or in the process of making the programme or item • there has otherwise been a failure to observe required editorial standards The Committee will aim to reach a final decision on an appeal within 16 weeks of receiving the request. The findings for all appeals accepted by the Committee are reported in this bulletin, Editorial Complaints: Appeals to the Trust. As set out in its Terms of Reference, the Committee can decline to consider an appeal which in its opinion: • is vexatious or trivial; • does not raise a matter of substance; • relates to the content of a programme or item which has not yet been broadcast; • concerns issues of bias by omission in BBC news programmes unless the Chairman believes that it is plausible that the omission of an item could have led to a breach of the guidelines on impartiality; • has not been made within four weeks of the final correspondence with the ECU or BBC Director on the original complaint; and • relates to matters which are the subject of or likely to be the subject of, or relevant to, legal proceedings. The Committee will not generally reconsider any aspects of complaints that have already been adjudicated upon or considered by a Court. Any appeals that the Committee has declined to consider under the above criteria are reported in the bulletin. December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee In line with its duty to consider topics of editorial concern to the Committee, whether or not such concern arises from a formal complaint, and to commission information requests from the Trust Unit or Executive to support such consideration, the Committee also from time to time requests the Executive to report to the Committee regarding breaches which have been accepted by the Executive and are therefore not subject to appeal to the Committee. The bulletin also may contain findings relating to such cases. The bulletin also includes any remedial action/s directed by the Committee. It is published at bbc.co.uk/bbctrust or is available from: The Secretary, Editorial Standards Committee BBC Trust Unit 180 Great Portland Street London W1W 5QZ December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee Summary of findings Repossessed, BBC One, 6 January 2009 This programme was a documentary following three families facing repossession of their homes. This is a first party appeal brought by the Judicial Communications Office (the appellant) on behalf of the judge involved in a possession order referred to within the programme, and also on behalf of the judiciary as a whole. The appeal argued that the programme, in presenting the opinions of an individual outside of the court, had presented a one-sided view of the hearing, and, in doing so, gave no opportunity for a right of reply. The appellant also argued that the depiction of the judge presented a damaging and unfair representation of the judiciary in general which could lead viewers to a misleading and false impression of the court process. The complainant also stated that there had been unreasonable delays in the BBC’s handling of the complaint. The Committee concluded: Accuracy • that the programme did not suggest the householder (Mr A) would ask for more time, merely that he was hoping the judge would be lenient • that, having listened to a recording of the court hearing, in the Committee’s view the judge had sounded caring, had given the couple the opportunity to explain their situation and had suggested to them that they should contact the council to obtain housing • that the comments made by Mr A after the hearing were made in the heat of the moment and were an absolutely understandable expression of disappointment and emotional distress, and would have been understood as such by the audience • that, while it is important for people to be able to express themselves freely within documentaries, it is essential that due accuracy is observed – particularly where fairness is concerned • that it was incumbent on the production team to gather evidence first hand where possible and that, because there was no production team member present in court, an appropriate context had not been given to Mr A’s comments • that there had been a failure to observe the guidelines on accuracy, which require that output must be well sourced, based on sound evidence, tested and presented in clear, precise language. Fairness and Right of Reply regarding the judge • that, although the judge had not been identified by name or image, it was possible that he could have been identified by some of the audience • that whilst it was entirely possible that those who could identify the judge were also able to understand that the couple were speaking from emotion and this did not represent what had actually occurred, it was equally possible that there were those who could identify the judge who would not be able to make this distinction • that Mr A’s comments amounted to a damaging critique and that, had a member of the production team been present in the court, the comments could have been put in context or might have been edited out before transmission December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee • that, as no member of the programme team was present, the only option open for the programme to achieve accuracy and fairness was to put the couple’s comments to the judge and incorporate his point of view • that the programme had not offered a right of reply or otherwise provided context to correct the inaccuracy and counter the criticism and was therefore unfair in its presentation of Mr A’s comments. Fairness and Right of Reply regarding the judiciary • that the comments expressed by Mr A would not have led people to a specific or particular view of the court’s processes • that in another case in the programme the courts were presented in a very positive light • that the programme was not damaging to the judiciary as a whole. Action to be taken by the BBC • that the BBC’s offer to edit out the strongest comments from any future broadcast of the programme was an appropriate action in this case. Accountability (Complaint handling) • that the complainant had been kept suitably informed of the process of the complaint at Stage 1 and the complaint was handled within a reasonable time frame given the circumstances as explained to the complainant at the time, which included paternity leave on the part of the producer and annual leave of the BBC representative • that there were unreasonable delays at Stage 2 of the complaints process in that the BBC Editorial Complaints Code of Practice states that the BBC aims to reply setting out relevant guidelines “usually within ten working days” and then to complete its investigation within 20 days thereafter • these limits were exceeded by the BBC in both cases due to pressure of work and lack of staff at the BBC’s Editorial Complaints Unit at the time • the ESC would write to the complainant apologising for the delays at Stage 2 of the complaints process. The complaint was partially upheld. For the finding in full see pages 6 to 15. Complaints arising out of the ESC’s findings of 3 March 2009 The Committee considered five appeals relating to the findings published in its 3 March 2009 bulletin. The five complaints each concerned, in broad terms, the actions taken by the BBC following those earlier findings. Three of the complaints were not upheld and two were partially upheld. December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee For the finding in full see pages 16 to 20. December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee Findings Repossessed, BBC One, 6 January 2009 1. Background This programme (produced by Betty TV for the BBC) was a documentary about three families facing repossession of their homes. One couple (Mr and Mrs A) were interviewed outside Colchester County Court after their repossession hearing. During this interview Mr A said that the judge talked to his wife “like she was rubbish” and that he “spoke to us like we were dogs”. 2. The complaint Stage 1 The appellant wrote to BBC Information in January 2009 (there was no date on the letter but the letter was received by BBC Information on 19 January 2009). He said that the programme included “inaccurate and defamatory comments”. The appellant, in referring to Mr A’s comments about their treatment by the judge at the hearing, said that these were “wholly unjustified and grossly misleading”. The appellant noted that the hearing had in fact been conducted in a polite and entirely proper manner, and the BBC had made no attempt to verify Mr A’s claim. The appellant said that this was made worse by the fact that this was the only contribution shown about the court hearing and that Mr A’s comment was given greater emphasis by being included at the beginning of the programme. The judge and judiciary should have been given a right of reply. The appellant also stated that the programme gave the impression that Mr A was going to ask the judge for more time to pay and that this request was rejected. The appellant noted that no request was made. This was not checked by the BBC. The appellant went on to argue that the programme’s misreporting of the court process could have misled viewers and given a false impression of the Court process. The appellant concluded that the programme’s failings amounted to a breach of the BBC’s editorial code which required “clear and decisive remedial action”. BBC Information replied on 29 January 2009. The reply contained a response from the Managing Director of Betty TV. The Managing Director explained that, because filming was not permitted in the court rooms, no-one from the production team was present at the hearing. He also stated that Mr and Mrs A had been visibly shaken and upset by the experience of the hearing which had lasted about five minutes. The Managing Director noted that the brevity of the hearing and Mr and Mrs A’s demeanour when they came out of court was consistent with the view they expressed in the interview. He also stated that while Mr and Mrs A did not have a financial plan to solve their problems they had hoped the court would give them more time to find a solution. Given their expectations, Mr and Mrs A was shocked by the briefness of the hearing and felt the judge had “talked down to them”. He said that Mr and Mrs A were simply expressing their feelings about their experience. The interview showed how genuinely they felt. The comments were not “wholly unjustified and grossly misleading”. The reply also included the extract from the commentary as Mr and Mrs A were travelling to the court: “[Mr A] doesn’t have a financial plan, but he’s hoping the Judge will be lenient and give them extra time in their home.” December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee The Managing Director of Betty TV felt that the use of the word “hoping” did not imply that Mr and Mrs A were going to ask for extra time, only that he hoped the judge might offer them a reprieve. On the question of a right of reply the Managing Director of Betty TV said that Mr and Mrs A were simply expressing their feelings about their experience in court and a right of reply was not necessary. The reply also explained the background and purpose of the programme i.e. that it was an observational documentary about three families facing the threat of repossession, told almost entirely from their perspectives. It was not presented as or intended to be an investigation from different perspectives into repossession or court processes. The reply noted that the programme did not suggest all court hearings were similar to that experienced by Mr and Mrs A and that the viewer would have understood that Mr A’s comments were a reflection of his inner turmoil and not that of the court system. The viewer was aware that Mr and Mrs A were not offering a financial plan and that had they done so the outcome of the hearing might have been different. The appellant wrote back in February 2009 (again, there was no date on the letter – BBC Information date stamped receiving it on 16 February 2009). The appellant stated that the fact that the independent production company, Betty TV Ltd, was not present at the hearing made it even more necessary for them to take reasonable steps to ensure that the account given was accurate and balanced. The appellant stated: “Unless it was able to verify the account given by [Mr and Mrs A] neither the production company nor the BBC should have published the statements to which objection has been taken.” The appellant noted that it was clear from the recording of the hearing that the comments were unjustified. He could not understand how the Managing Director could have expressed an opinion on whether the comments were unjustified or misleading without anyone from the production checking what had happened in court. On the question of a right of reply, the appellant said that he was surprised by the Managing Director’s conclusion, given the “ferocity” of Mr A’s comments and the clear undertaking given in the BBC’s Editorial Code. The breach of the code was exacerbated by the fact that the judge could only have been one of two judges sitting in that court at the time of the hearing. The appellant also noted that the programme included an interview with the Citizens Advice Bureau which would lead viewers to believe that some attempt was being made to represent an accurate picture of the court process. However, in Mr and Mrs A’s case that representation was “false and misleading”. The Acting Commissioning Editor, Documentaries, replied on 19 March 2009. She stated that the Executive Producer of the programme at Betty TV had now heard the recording of the hearing. The production team had also spoken to Mr and Mrs A about their experience and felt the comments by Mr and Mrs A were justified. The Acting Commissioning Editor, Documentaries, said that no-one from the court had explained the process to Mr and Mrs A, and while the judge had not spoken inappropriately to the couple, he had interrupted them when they tried to explain themselves and reached his conclusion within a few minutes of the start of the hearing. The reply reiterated that the comments were to do with the feelings of Mr and Mrs A about their court experience, it was not about the conduct of the judge who remained unnamed in the programme. The reply concluded: December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee “Although I believe these comments are editorially justified, we do not wish to cause any unintentional distress and would be willing to remove the strongest comments from any versions of the documentary to be broadcast in the future internationally or on other UK channels.” Stage 2 The appellant wrote to the Editorial Complaints Unit (ECU), the second stage of the BBC’s complaints procedure, on 31 March 2009. The appellant repeated his concerns that the programme contained inaccurate and defamatory comments. The appellant noted that while he welcomed the programme’s offer to exclude the phrase treated “like dogs” from future broadcasts, the reply from the Acting Commissioning Editor did not deal with areas of the complaint raised by the appellant and stated at one point that Mr and Mrs A’s comments had been justified. The appellant noted it was nearly three months since the broadcast and the damage to the image of the judiciary had continued. He also reiterated his concerns about the inaccuracy of Mr and Mrs A’s comments, the lack of a right of reply and the possible effect the programme had had on the willingness of people to seek help through the courts. The ECU replied on 4 June with its substantive reply. The ECU did not uphold the complaint. The ECU decided that Mr and Mrs A’s comments needed to be seen in the context of the piece. Mr and Mrs A were in an emotionally fragile state. Mr A had made it clear he was not an educated man. Therefore, viewers would have been aware “he was likely to speak in a manner which owed more to emotion that to considered judgement”. The ECU was satisfied that the viewers would have understood that his comments outside the court were more of a reflection of his feelings at a time of particular distress than as information about the conduct of the judge. The ECU noted that standards of accuracy were no more applicable to this than any other expression of personal feeling or opinion. As to the right of reply, the ECU noted that while Mr A had expressed himself strongly, the judge had not been named. The ECU concluded that this was a difficult judgement but that those viewers who would have been able to identify the judge would be best placed to recognise that Mr A’s comments were reactions to the process and least likely to have their opinion of the judge influenced. As such, the comments would not “have had the force of a serious allegation or criticism in the eyes of those able to identify” the judge. The ECU also stated that with regard to the complainant’s concern that the commentary gave a misleading impression that Mr A was going to request more time to pay and that the court had rejected this, the ECU said that viewers would have understood that Mr A’s comments referred to nothing more than a hope. The appellant replied to the ECU in June 2009 (date stamped on receipt as 22 June 2009). The appellant stated their disappointment at the ECU’s findings. The appellant stated that Mr A’s comments that the judge “spoke to us like dogs” and spoke to his wife “like she was rubbish” constituted “the most serious slurs against a professional judge”. The appellant also argued that the suggestion that viewers would have discounted the statements because of Mr A’s emotional state was not sustainable. The appellant pointed out that they were broadcast in what was patently an edited and filmed programme, and a serious documentary; the circumstances gave the impression that what Mr A said was true and plausible; and the fact that no contrary account of the hearing was advanced or even hinted at implied that there was no contrary account capable of being advanced. With regard to the issue of the right of reply, the appellant felt that it was reasonable to expect those who were in a position to identify the judge to attach some weight to the BBC’s airing of Mr A’s views, given that the BBC was a reputable broadcaster and its editorial policy was to prove accuracy and provide a right of reply. December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee The appellant concluded by suggesting that the BBC should apologise to the District Judges and broadcast an accurate item on the approach by District Judges to mortgage repossession. The ECU replied on 7 August satisfied that viewers would have understood Mr A’s comments as a reflection of his feelings rather than as information about the conduct of the judge. It was as a reflection of Mr A’s feelings that the remarks merited inclusion and it did not follow that they had credibility. The ECU also pointed out that only those that knew which judge was sitting would have known precisely who was being targeted. Stage 3 – Appeal to the Editorial Standards Committee (ESC) The appellant appealed to the BBC Trust on 19 August 2009. The appellant asked the ESC to review the ECU’s decision and also to consider the time taken to deal with this complaint. 3. Applicable Editorial Standards Section 3 – Accuracy Introduction The BBC’s commitment to accuracy is a core editorial value and fundamental to our reputation. Our output must be well sourced, based on sound evidence, thoroughly tested and presented in clear, precise language. We aim to achieve it by: • The accurate gathering of material using first hand sources wherever possible. • Checking and cross checking the facts. • Corroborating claims and allegations made by contributors. Gathering material We should try to witness events and gather information first hand. Where this is not possible, we should talk to first hand sources and, where necessary, corroborate their evidence. Section 5 – Fairness, Contributors and Consent Introduction The BBC strives to be fair to all – fair to those we're making programmes about, fair to contributors, and fair to our audiences. Fairness editorial principles Where allegations are being made, the individual or organisations concerned should normally have the right of reply. Right of reply When we make allegations of wrong doing, iniquity or incompetence or lay out a strong and damaging critique of an individual or institution the presumption is that those criticised should be given a “right of reply”, that is, given a fair opportunity to respond to the allegations before transmission. December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee Ofcom Broadcasting Code The Ofcom Broadcasting Code which is incorporated into the editorial guidelines and which is included here for information requires that: 7.1 Broadcasters must avoid unjust or unfair treatment of individuals or organisations in programmes. 7.9 Before broadcasting a factual programme, including programmes examining past events, broadcasters should take reasonable care to satisfy themselves that: • material facts have not been presented, disregarded or omitted in a way that is unfair to an individual or organisation • anyone whose omission could be unfair to an individual or organisation has been offered an opportunity to contribute. 7.11 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. Section 17 – Accountability Introduction The BBC is accountable to its audiences. Their continuing trust in the BBC is a crucial part of our contract with them. We will act in good faith by dealing fairly and openly with them. We are open in admitting mistakes when they are made and encourage a culture of willingness to learn from them. Feedback & complaints Audiences are at the heart of everything the BBC does. Audience feedback is invaluable to us and helps improve programme quality. Our commitment to our audiences is to ensure that complaints and enquiries are dealt with quickly, courteously and with respect. 4. The Committee’s decision The Committee considered the complaint against the relevant editorial standards, as set out in the BBC’s editorial guidelines. The guidelines are a statement of the BBC’s values and standards. In reaching its decision the Committee took full account of all the available evidence, including (but not limited to) the Editorial Adviser’s report and subsequent submissions from BBC Audience Services and a tape recording of the court hearing. This appeal raises issues requiring consideration of the editorial guidelines relating to accuracy, fairness and right of reply, and a separate issue relating to accountability and the handling of the complaint. The Committee noted that the guideline on accuracy requires BBC output to be well sourced and based on sound evidence. It requires claims and allegations made by contributors to be corroborated wherever possible. On gathering material, the guideline December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee states that programme makers should try to witness events and gather information first hand. The guideline on fairness states that the BBC strives to be fair to all – fair to those the programmes are made about, to contributors, and to audiences. The guideline on the right of reply requires that when the BBC makes allegations of wrongdoing, iniquity or incompetence or lays out a strong and damaging critique of an individual or an institution the presumption is that those criticised should be given a fair opportunity to respond to the allegations before transmission. The Committee noted that this does not necessarily require a filmed interview but can include gathering information in a response which informs the production and editing of the programme. The Committee also noted that the Ofcom Broadcasting Code to which the BBC is subject on the matter of fairness requires that broadcasters must avoid unjust or unfair treatment of individuals or organisations in programmes and should take reasonable care to satisfy themselves that material facts have not been presented, disregarded or omitted in a way that is unfair to an individual or organisation. With regard to complaint handling the Committee noted that the editorial guidelines state that the BBC is committed to ensure that complaints and enquiries are dealt with quickly, courteously and with respect. It further noted that the BBC Editorial Complaints Code of Practice sets out the periods of time within which the BBC aims to complete the various stages of the complaints process and that these time limits are not mandatory. Accuracy and Fairness This was a documentary following three families facing repossession of their homes. The Committee noted that the appellant, representing the District Judge in one of the cases as well as the judiciary, argued that the programme contained inaccurate and defamatory comments about him, which were wholly unjustified and grossly misleading. The Committee further noted that the appellant argued that the breach was aggravated by the fact that the comments complained of were the only contribution about the court hearing and that they were given greater emphasis by having also been included at the start of the programme. The Committee noted that the appellant said the programme suggested the couple were going to ask in court for more time to pay but they did not, and that these comments amounted to a serious allegation which had a strong and damaging effect on him. The Committee noted the appellant’s argument that the circumstances fell within the editorial guideline requiring a right of reply to be offered prior to transmission of the programme. Also the appellant argued that the programme was damaging to the judiciary as a whole and expressed concern about the effect the programme might have on the willingness of other people to go to court. The Committee then noted what the Managing Director of the independent production company had stated in reply. The Committee noted that with regard to the issue of what was said at the hearing, the production team had stated: “As filming is not permitted inside court rooms, no-one from Betty [TV] was in court with [Mr and Mrs A] during the repossession hearing. The director and producer of the programme waited outside the court during the hearing and filmed an interview with [Mr and Mrs A] (part of which was included in the broadcast programme) immediately after they came out of the court building.” The Committee considered this was not an acceptable explanation for why no-one from the production team had attended the hearing. The Committee agreed that it was December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee incumbent upon the production team to gather evidence first hand wherever possible, and that in this case a representative of the production team should have attended the court hearing in order to corroborate and contextualise what was said. With regard to the appellant’s view that the programme had suggested that the couple were going to ask the judge for more time to pay, the Committee noted that the commentary in the programme stated: “[Mr A] doesn’t have a financial plan but he’s hoping [our emphasis] the judge will be lenient and give them extra time in their home.” The Committee agreed that this did not suggest that Mr A would ask for more time, merely that he was hoping the judge would be lenient. The Committee then noted the comments which the husband and wife made after the court hearing: Mr A: Basically ’e just said they’d do a repossession order for 28 days. It’s really upset ’er – don’t let ’em upset you. It’s stupid… Mrs A: I know, I knew it was going to happen anyway, I know. It’s just the way he talked, you know. Mr A: The way he talked to her – like she was rubbish… Mrs A: It’s nothing to him – it’s just his day’s work isn’t it, you know. Mr A: Spoke to us like we were dogs didn’t ’e. I just can’t believe how they speak to people. If someone spoke to you like that in the street you would, without a doubt, you would smack ’im. Wouldn’t suffer that. The Committee noted the appellant’s view that these comments were an “inaccurate” and “grossly misleading” representation of what happened in court. The Committee then noted the production team’s response. The Committee noted what the Managing Director stated in his reply to the appellant: “[Mr and Mrs A] were visibly shaken and upset by their experience in court and in their interview they expressed their emotions and what they felt about the decision and the manner in which they were informed of the court’s decision. The brevity of the hearing and the [Mr and Mrs A’s] demeanour when they came out of court were consistent with the views they expressed.” The Committee noted that the production team had said that Mr and Mrs A’s comments had more to do with their feelings than the conduct of the judge, and that having heard the tape of the hearing, read the transcript and spoken again to the couple, the production team felt the comments were justified. The Committee also noted that the BBC offered to remove the strongest comments from any versions of the documentary to be broadcast in future. The Committee then considered the comments and decision made by the ECU. It noted that the ECU agreed that the comments, “if measured as statements of fact, would have to be considered inaccurate”. It further noted, however, that the ECU stated that the couple were in an emotionally fragile state and that the audience would have appreciated that the husband was likely to speak in a manner which owed more to emotion than considered judgement. The Committee noted that the ECU had concluded that the comments would have been understood by the audience to be statements of December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee feeling, not of fact and that therefore it could not uphold the complaint as a breach of the editorial guideline on accuracy. The Committee also noted that the ECU stated that the judge was not named, and those viewers who would have been able to identify him would be least likely to have their opinion of him swayed by the comments. The Committee noted that the appellant had stated that members of the local community knew exactly who was being targeted in the programme. It noted that the ECU had concluded that there was no unfairness to the judge and no requirement to offer him a right of reply. The Committee read the transcript and listened to a tape recording of the court hearing which had been provided to them by the appellant. It concluded that the judge had sounded kind and caring, gave the couple the opportunity to explain their situation, and suggested to them that they contact the council to obtain housing. The Committee concluded that the comments by Mr A, which were said in the heat of the moment, were an absolutely understandable expression of disappointment and emotional distress, and would have been understood as such by the audience. Notwithstanding, whilst it was important that people were able to express themselves freely within documentaries (even if what they thought had happened did not match what had occurred) it was essential that due accuracy be observed. This was particularly the case where fairness was concerned. This meant it was incumbent upon the production team and the BBC to reach a view as to what had occurred and contextualise the views expressed by Mr and Mrs A. However, the Committee was concerned that because there was no production team member present in court, an appropriate context had not been given to Mr A’s comments. There had been a failure to observe the guidelines on accuracy which require that output must be well sourced, based on sound evidence, tested and presented in clear precise language. Facts had not been checked and allegations had not been corroborated. The production team had not witnessed events and gathered information at first hand. The Committee therefore upheld this element of the appeal on accuracy. Turning to Fairness, the Committee noted that the judge had not been identified by name or image and as such would not have been known to the majority of the audience watching. Notwithstanding, it was clear that the judge may have been identifiable to some of the audience. Whilst it was entirely possible that those who could identify the judge were also able to understand that the couple were speaking from emotion and this did not represent what had actually occurred, it was equally possible that there were those who could identify the judge who would not be able to make this distinction. To suggest that a judge spoke to the As as if they were rubbish or to Mrs A as if she were a dog was to make a damaging critique. The Committee concluded that if the production team had been in court they would have been able to put the couple’s comments properly in context or might have made the decision to edit out the strongest of the comments before transmission. As the production team were not there and had not researched what had occurred, the option open to them to achieve fairness was to put the couple’s comments to the judge and then incorporate his point of view. (A right of reply does not have to be an interview.) This was not done. December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee The Committee concluded therefore that the programme had been inaccurate, had contained a damaging critique and had not offered a right of reply or otherwise provided context to correct the inaccuracy or counter the criticism. It was therefore unfair to the judge in its presentation of Mr A’s comments. The Committee therefore upheld this element of the appeal on fairness. Turning to the question of whether any further actions should be required to be undertaken by the BBC, the Committee noted that the BBC had offered to edit out the strongest comments before this programme was re-shown, and concluded that this was an appropriate action in this case. The Committee did not consider that an on-air apology was a proportionate response to this matter given the limited number of people who may have identified the judge, the brevity of the comments and given the likelihood that many would have seen Mr A’s comments as an emotional outburst and therefore not credible. In relation to the guidelines on Fairness the Committee concluded that the programme was not damaging to the judiciary as a whole. The Committee did not agree with the appellant that the comments expressed by Mr A would have led people to a specific or particular view of the court’s processes. The Committee noted that in another case in the programme the courts were presented in a very positive light. There was no breach of the fairness guidelines. Accountability – Complaints handling The Committee noted that the appellant was dissatisfied with the length of time it had taken the BBC to deal with the complaint. It noted that the BBC Editorial Complaints Code of Practice states that the BBC aims to reply within ten working days to Stage 1 complaints and that for Stage 2 complaints the BBC will usually reply within ten working days setting out the relevant editorial guidelines and aims to complete its investigation within 20 working days thereafter. The Committee noted that at Stage 1 two letters from the appellant were dated simply “January” and then “February”. However, the evidence from BBC Audience Services was that they were very prompt following the recorded receipt of the appellant’s correspondence, both in replying to him and keeping him informed of the progress of the complaint and also in chasing up replies from the production company and the BBC. The Committee noted the evidence from Audience Services that there had been some delay from the production company and then from the BBC Acting Commissioning Editor in responding to the complaint. BBC Audience Services chased the progress by email on 10 March, then again on 19 March then on 23 March and then on 1 April, when they were told that the letter had been sent “a week ago”. The delays had been due first to the independent producer arranging to listen to the tape recording and formulating a reply, then by his paternity leave, then by the BBC Acting Commissioning Editor’s annual leave. The appellant received the letter dated 19 March from the Acting Commissioning Editor on 27 March. The Committee concluded that it was likely that although the letter was dated 19 March it had not been sent until the Acting Commissioning Editor’s return from leave on 23 March. The Committee concluded that although the time limits set out in the BBC Editorial Complaints Code of Practice had been exceeded in this case, the appellant had been kept suitably informed of the process of the complaint at Stage 1 and the complaint was handled within a reasonable time frame given the circumstances as explained to the appellant at the time, which included paternity leave on the part of the producer and annual leave of the BBC representative. December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee Turning to the delays at Stage 2 the Committee noted that the first letter from the ECU setting out the relevant editorial guidelines was sent on 20 April following the appellant’s letter of 31 March. The Committee then noted that the complainant sent a reminder on 1 June and a draft finding was then sent to him on 4 June. His response having been received on 22 June, followed by a reminder on 10 July, the ECU then sent out its formal finding on 7 August. The Committee noted that the ECU had stated that the reasons for the delay were due to a mixture of pressure of work and short staffing at the time. The Committee concluded that there were unreasonable delays at Stage 2 of the complaints process in that the Editorial Complaints Code of Practice states that the BBC aims to reply setting out relevant guidelines “usually within ten working days” and then to complete its investigation within 20 days thereafter, and that these limits were exceeded by the BBC in both cases due to pressure of work and lack of staff at the BBC’s Editorial Complaints Unit at the time. The Committee decided that they would write to the appellant apologising for the delays at Stage 2 of the complaints process. Finding: Upheld as to accuracy and fairness regarding the judge (right of reply); not upheld as to fairness regarding the judiciary; not upheld as to delay at Stage 1 of the complaints process; upheld as to unreasonable delay at Stage 2 of the complaints process. December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee Complaints arising out of the ESC’s findings of 3 March 2009 1. The background The Committee considered five appeals relating to the findings published in its 3 March 2009 bulletin. The five complaints each concerned, in broad terms, the actions taken by the BBC following those earlier findings. The five complaints were made in two letters dated 26 April 2009. The complaints were rejected by BBC News in a letter dated 6 May 2009. The complainant appealed to the BBC Trust in a letter dated 11 May 2009, and provided further information on his complaints in letters dated 6 May 2009, 13 May 2009, 21 May 2009 and 3 July 2009. BBC News provided additional comments to the Committee in a document dated 14 July 2009. The complainant provided additional comments in a document dated 3 August 2009. The Committee had all of these documents before it, and considered them in reaching its decisions. The Committee considered these complaints at its meeting on 2 September 2009. Due to a miscommunication regarding the precise nature of the complaint, the Committee reconsidered Complaint 2 at its meeting on 1 December 2009. At that meeting, it also had before it a letter dated 20 October 2009 from BBC News, and a reply from the complainant dated 13 November 2009. 2. The complaints and the Committee’s decision Complaint A: Jeremy Bowen should be replaced as the BBC’s Middle East Editor The complainant stated that Mr Bowen should be replaced as Middle East Editor. The complainant drew attention to the fact that, in its 3 March 2009 findings, the ESC had upheld one complaint and partially upheld another complaint of lack of impartiality in relation to an article written by Mr Bowen. The Committee concluded that there was no basis for saying that Mr Bowen should be replaced as Middle East Editor. The complainant also made another allegation, which the ESC considered defamatory and which was rejected in its entirety. The Committee decided that the fact that Mr Bowen continues as Middle East Editor does not mean that the remedial action taken by the Executive in response to its 3 March 2009 findings could be said to be inappropriate or insufficient. Finding: Not upheld Complaint B: The BBC Journalist’s guide to facts and terminology should be updated in light of the ESC’s 3 March 2009 finding This complaint was that the BBC’s Style Guide should be updated in light of the ESC’s 3 March 2009 finding. The complainant also stated that a video which appears on the BBC website needed to be removed or updated in light of the finding. BBC News confirmed that it had removed the video in question. At the ESC meeting of 2 September 2009, BBC News informed the ESC that it intended to update the Style Guide. However, it subsequently became clear that BBC News and the complainant had been referring to two separate Style Guides – BBC News had been December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee referring to an internal guide used by journalists, whereas the complainant was referring to an external abbreviated guide available to the public on the BBC website. This issue was therefore reconsidered at the ESC meeting of 1 December 2009. The external guide states, of settlements: Settlements are residential areas built by Israelis in the occupied territories. They are illegal under international law: this is the position of the UN Security Council and the UK government among others – although Israel rejects this. When writing a story about settlements we can aim, where relevant, to include context to the effect that “all settlements in the West Bank, including East Jerusalem, are considered illegal under international law, though Israel disputes this.” The complainant stated, in summary, that the settlements are not illegal, and/or that not all of the settlements are illegal, and/or that in all events experts and countries disagree about this issue and the guide should therefore reflect this disagreement. He contended that the guide is inaccurate, partial, and does not reflect the true diversity of opinion that exists on this issue, and in particular that it should reflect the US position. The ESC rejected this complaint. The Committee considered that it was accurate to say that the settlements are illegal under international law, and that BBC News was entitled to rely on the views of the UN Security Council and the UK Government in reaching this conclusion, as well as on the conclusions of a report on international law which had been commissioned by the BBC. Furthermore, the Committee considered that in any event the external guide makes it clear that the view that the settlements are illegal is the view of the UN Security Council and the UK Government, and that Israel disputes that contention. It was an abbreviated guide and it was not necessary to include the position of other countries. In relation to the internal guide, the ESC noted that it had been amended to reflect the findings of the ESC’s earlier decision. In particular, the guide contains a section on the US position on the settlements. That section describes the US position on the legality of the settlements as one of “studied ambiguity”. It sets out some of the history of the US’ position, including its vote for UN Security Council resolution 465 in 1980. It then says: “For the past 30 years, however, the US has been reluctant to take a public position on this legal issue, preferring to focus on the policy aspect.” The guide then sets out a statement by President George W Bush on the issue in April 2004, and comments by the State Department and President Obama in 2009. It also records the ESC’s conclusion in the earlier complaints that there was no evidence to suggest that it was the US position that the Har Homa settlement was illegal. The complainant stated that this account did not properly reflect the views of the administrations of Presidents Reagan, Bush senior and Clinton on the question of illegality. He provided evidence to support his contention that their position was not one of “studied ambiguity” but was, “that the settlements were not illegal, but (after some hesitation at the beginning of Reagan’s term) that they were unhelpful.” The complainant also stated that the internal guide should mention the fact that the Middle East Road Map requires a cessation of settlement activity, as this could explain recent statements by the current US administration. The ESC rejected this complaint. It considered that, as a broad summary, it was accurate to describe the US’ position as one of “studied ambiguity”. It also considered that it was clear even from the evidence provided by the complainant that the US had preferred to focus on policy questions rather than on the question of legality. Moreover, this internal December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee guide was a summary of the US’ position for the benefit of journalists, and it was entitled to focus on the position since President George W Bush. It was not necessary to engage in a President-by-President account of the nuances of US policy, and journalists would not rely on it for such detail. Nor was it necessary to provide detail about the Road Map. The complainant also stated that the external guide was not, as it stated, an abbreviated version of the internal guide. The ESC noted, however, that the extract which it had been provided from the internal guide was concerned specifically with the US position on settlements, whereas the extract from the external guide was concerned with settlements generally. The Committee also felt that in any event the external guide did not need to use the same language as the internal guide in order to fulfill its function of summarising that internal guide. The Committee therefore decided that the remedial action taken by the Executive in response to its 3 March 2009 findings could not be said to be inappropriate or insufficient because of the failure to amend the external style guide or to make further amendments to the internal style guide. As the video content had been removed it did not need to consider that issue. BBC News had taken steps promptly and no complaint could be made about the time taken. This complaint was rejected. Finding: Not upheld Complaint C: Amendments to the BBC News website article “How 1967 Defined the Middle East” The complainant raised several concerns regarding the amendments which BBC News has made to the article, “How 1967 Defined the Middle East” in light of the Committee’s findings of 3 March 2009. The Committee first considered whether the amendments made to the article were sufficient in light of its earlier findings that there had been a breach of the impartiality guidelines. It recalled that, in its earlier finding, it had stated that it was not suggesting that the same amount of space be given to different arguments, and that all that was required was a clear statement signposting that there were alternative theses subscribed to by respectable historians. The Committee concluded that the amendments made to the article were sufficient to signpost that such alternative theses exist. This is clear from the first paragraph of the amended article, which reads: “To understand what is happening between Israel and the Palestinians now, it is important to understand what happened in the Middle East war of 1967 – a subject of much debate among historians. The BBC Middle East editor Jeremy Bowen, who presented the Radio 4 series Six Days That Changed the Middle East, here gives his own assessment.” It is also clear from the following sentence which appears under the heading “Spoiling for a Fight”: “While historians hold different views on the 1967 war, one school of thought is that it is a myth to suggest the Israeli David slew the Arab Goliath, and that it is more accurate to say there were two Goliaths in the Middle East.” The Committee next considered certain amendments made in light of its findings that there had been breaches of the accuracy guidelines. December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee The Committee recalled that the original article stated: “The Israeli generals … had been training to finish the unfinished business of Israel’s independence war of 1948 for most of their careers.” In its 3 March 2009 findings, the ESC held that this breached the guidelines on accuracy as it would have been impossible for the reader to know what unfinished business the author had meant. The amended article states: “The Israeli generals … had been training to finish the unfinished business of Israel’s independence war of 1948 – the capture of East Jerusalem – for most of their careers.” The Committee concluded that this addition made it clear what “unfinished business” was being referred to, and that the breach had accordingly been remedied. The Committee noted, however, that the same quote was used as a caption to a photograph illustrating the article, and that the caption had not been amended. The Committee decided to ask BBC News to amend the caption promptly. The Committee next recalled the following statement in the original article: “When the messianic moment of victory combined with Zionism’s innate instinct to push out the frontier, the result was the settlement movement.” In its 3 March 2009 findings, the Committee had found that this statement lacked precision and should be qualified. The amended article states instead: “When the messianic moment of victory combined with the tendency within Zionism to push out the frontier, the result was the settlement movement.” The Committee concluded that it was satisfied that that amendment reflected the Committee’s original finding. The Committee also considered whether the amended article had been promoted with sufficient duration and prominence. It concluded that the publication of its earlier finding, together with the amendment of the article, was a sufficient response and that there was no need to promote the amended article with any greater prominence or duration. Lastly, the Committee noted that the paragraph which had been added to the end of the amended article was incomplete insofar as it stated that: “[The ESC] partially upheld a complaint that the article breached guidelines on impartiality.” In fact, the ESC had upheld one complaint and partially upheld another complaint that the article breached guidelines on impartiality. The Committee decided to ask BBC News to amend this paragraph accordingly. In conclusion, the Committee decided to ask BBC News to amend the caption to the photograph and the paragraph at the end of the article in the ways outlined above. Otherwise, it was satisfied that the amendments to the article, and the manner in which those amendments were publicised, were appropriate and sufficient. This complaint was therefore upheld in part but otherwise rejected. Finding: Partially upheld Complaint D: A correction should be broadcast following the ESC adjudication regarding a breach of the accuracy guideline concerning an edition of From Our Own Correspondent The complainant stated that, in relation to the earlier finding that the From Our Own Correspondent report had breached the accuracy guidelines, a correction should be December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee broadcast. The complainant suggested that it would be appropriate to broadcast the correction over at least three consecutive weeks so that it is likely to be heard by most of those who heard the original report. BBC News stated that the proportionate response to the Committee’s earlier finding was to publish the full ESC report, which had been done. The Committee agreed with BBC News. There was no need to broadcast any correction in this case. The remedial action was appropriate and sufficient. Finding: Not upheld Complaint E: Comments made by the BBC News publicity in response to questions from the press concerning the ESC finding of 3 March 2009 This complaint related to comments made by BBC News publicity in response to questions from the press following the ESC’s finding. The complainant stated that BBC News’s comments downplayed the significance of the ESC’s findings and conveyed the impression that the findings had no real relevance to present day coverage. BBC News responded that it was appropriate to put the ESC’s findings in a broader context. The complainant replied that BBC News had presented an incomplete or one-sided account of that context. The Committee concluded that it was appropriate and sufficient for BBC News to put the findings in a broader context. In general terms, the manner in which BBC News had presented that context was appropriate, given its role. However, the Committee noted that one part of BBC News’s comments was inaccurate. BBC News had said: “this is a single partially upheld finding related to one piece of output about events that took place over forty years ago”. In fact, the ESC had upheld one complaint of impartiality and partially upheld another. BBC News accepted that this comment was inaccurate. It was based on a misunderstanding arising from the fact that the subject line of an email from the Trust Unit to BBC News referred to both appeals whereas the contents of the email applied only to one. The Committee also considered a statement prepared by a member of staff which explained the background to this misunderstanding. The Committee accepted that the inaccuracy in the BBC News response was a regrettable mistake. The Committee therefore upheld this complaint insofar as it relates to the inaccurate statement in the BBC News comments. The Committee also decided to formally record an apology to the complainant for that mistake. Otherwise, the complaint was rejected insofar as it relates to the broader content of the BBC News response. Finding: The Committee upheld the element of the complaint that suggested that the initial BBC News response contained an inaccuracy as to the description of the ESC’s finding. December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee Rejected appeals Appeals rejected by the ESC as being out of remit or because the complaint had not raised a matter of substance and there was no reasonable prospect of success. General Anti-Israeli Bias The complainant appealed to the Committee to overturn the decision of the Head of Editorial Standards’ not to proceed with his appeal which suggested that the BBC, and Jeremy Bowen the BBC’s Middle East editor, were persistently biased against Israel. The Committee’s decision The Committee noted that the complainant had raised this complaint on appeal to the Trust in a letter dated 1 September 2008. In this letter the complainant set out reasons for the Committee to consider his complaint that the BBC and particularly its Middle East editor was biased against Israel. The Committee noted that in a reply dated 2 October 2008 the Head of Editorial Standards had turned down the complainant’s request for an appeal on the basis that having considered all of the correspondence on the matter and having noted the former BBC Governors’ report and recommendations on the BBC coverage of the Israeli-Palestinian conflict, as well as noting the fact that since the inception of the BBC Trust in January 2007 not one appeal on the issue of the conflict had been upheld, there was not a case to answer for the BBC Executive with regard to systemic or persistent bias against Israel. The Committee noted that the complainant appealed this decision in a letter dated 20 November 2008. The Committee considered this appeal at its 5 February 2009 meeting. The Committee noted that the complainant had a number of impending appeals on issues relating to the Middle East conflict and, therefore, decided to hold back its decision on this issue until after it had considered all of the complainant’s appeals currently with the Trust. Since making this decision the Committee has considered the following nine appeals by the complainant on various aspects of the coverage of the Israeli-Palestinian conflict: • Bias in four online articles i) Israeli air strike targets Hamas ii) Rockets ‘violated Gaza ceasefire’ iii) Gaza truce ‘violated repeatedly’ iv) London summit on Jewish refugees • Birth of Israel, BBC Two, 4 May 2008 • The Thirties in Colour, BBC Four, 3 August 2008 • Today, BBC Radio 4, 14 July 2008 • Panorama: Gaza – Out of the Ruins, BBC One, 9 February 2009 • PM, BBC Radio 4, 10 February 2009 The Committee noted that having considered all nine appeals it had not found any to be in breach of the BBC’s Editorial Guidelines. However, the Committee did note that the BBC December 2009 issued February 2010 Editorial Standards Findings/Appeals and other editorial issues to the Trust considered by the Editorial Standards Committee Online article “London summit on Jewish refugees” had been partially upheld by the BBC Executive’s Editorial Complaints Unit (ECU) with regard to a phrase which suggested that Jews were “fully integrated” in Muslim countries. The Committee noted that the ECU had found the phrasing was misleading and had asked for the article to be amended and the Middle East team to be reminded of the need “to explain this situation clearly”. The Committee also noted that the complainant had pointed out to the Committee a newspaper article that suggested that the BBC Arabic service had incorrectly made reference to the content of the Israeli maths curriculum. The Committee also noted the complainant’s reference to the Committee’s decision on two separate appeals it had considered in March 2009 concerning a BBC online article entitled “How 1967 defined the Middle East” and an item in an edition of BBC Radio 4’s programme From Our Own Correspondent, broadcast on 12 January 2008, in which it had upheld, and upheld in part, complaints concerning accuracy and bias. The Committee noted that the matters which had been subject to an uphold or partial uphold were concerned with the precision of language and/or the lack of reference to other arguments The Committee concluded that having considered the evidence provided by the complainant across his nine appeals and after taking into account the appeals that the ESC and ECU had upheld or upheld in part, it was of the view that there was insufficient evidence to suggest that the appeal had a reasonable prospect of success and there is accordingly no case for the BBC to answer. As such, the Committee agreed that any consideration of this matter on appeal would be inappropriate and disproportionate. The Committee therefore rejected the complainant’s request for an appeal. The Trust also considered (having taken into account the evidence referred to above and having also taking into account the volume of output on the conflict) that there was insufficient evidence to suggest that there should be any review of the BBC’s content on this matter. December 2009 issued February 2010