What the Regulators Say 4
Created on 06 Aug 2012
Broacast content regulators have been keeping busy - here's our latest round up of important decisions and comments.
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Ofcom's watershed warning
Ofcom continues to worry that there’s still too much unsuitable material before the watershed – putting out a Note to Broadcasters about programmes originally meant for late night transmission which are then edited poorly if at all before being broadcast before 9.00pm. This follows on from its formal guidance issued last year. Ofcom is also concerned that broadcasters are getting very close to the line too soon after the watershed, issuing guidance when it feels that something has got a bit too close, and a formal finding of a code breach against Playing it Straight on E4, with three uses of the strongest language in pre-title sequence. Like the Ofcom Code, the Editorial Guidelines warn against any abrupt change to “more adult material”.
History bites back
Traffic Cops: Running on Empty, BBC1, 23 June 2011
Repeats of two programmes, both first broadcast some years ago, have prompted warnings from Ofcom. The first, Don't Tell the Bride, showed someone taking a call on a mobile phone while driving. It’s now illegal. Ofcom has urged the BBC to edit out or reduce similar material, and to ensure that producers don’t set up this kind of sequence in future. And Ofcom has also warned that the public interest justification for showing, for example, repeats of programmes that follow the work of the police, doesn’t last forever. It might be justified to show identifiable pictures of individuals behaving criminally or anti-socially on first broadcast, but if programmes are repeated long after filming, a time will come when the public interest won’t be enough to outweigh their legitimate expectation of privacy.
Children in Court
The law is clear, even if it goes back to 1933, before television came to the UK. Images – moving or still photographs - of under-18s (under-16s in Scotland) who are subject to criminal proceedings may not be published. The Editorial Guidelines warn against identifying children who commit crimes. The BBC’s News at Ten, reporting on the conviction of a youngster who took part in last year’s riots, had taken some steps to conceal both his and his mother’s identity, but was found to be in breach of the Editorial Guidelines by the BBC Trust. The Trust set out what it considered to be the important factors: “..the gait, clothing, height and build of the child and the geographical location of the court (which was not given but would have been apparent to those who knew the area) added to his age which was given in the report combined with the gait, height, build, skin colouring, dress of the accompanying adults and voice of the child’s mother would render him identifiable to family, friends and some in his neighbourhood".
Evidence in public courts isn't private
Selkirk News, BBC Radio Scotland, 26 January 2012
A man whose lawyer described details of his medical condition to try to mitigate his sentence on cannabis growing charges has had his complaint of unwarranted infringement of privacy dismissed by Ofcom. Mr Julian Gaze argued that he hadn’t told his family how ill he was, so when the BBC gave full details of his trial and conviction, it breached his privacy. Ofcom, firmly defending the principle of open justice, noted that all relevant information had been given in open court, so he had no legitimate expectation of privacy.
The High Court has given two judgements recently which defend proper reporting. The first clarified what the police need to do when trying to get broadcasters to hand over their rushes. Essex Police asked the BBC and other television companies for a great deal of material shot as they cleared the protestors from Dale Farm. The Crown Court originally authorised police access to pretty much all the material shot, but the BBC, jointly with ITN, Sky and a couple of indies went for judicial review of that decision, and the High Court’s judgement set out a whole series of steps the police must go through, which includes providing evidence of why they believe the evidence in the footage will be helpful and what crimes might be revealed. The High Court also took seriously the point that there would be a serious risk to camera crews’ safety if demonstrators started to think anything they shot would end up with the police.
The High Court has also ruled in favour of the BBC, and against a decision by the Justice Secretary, over an application by the BBC to film an interview with Babar Ahmad, a UK citizen wanted in the United States on terrorism charges. He has been in jail for more than seven years while his challenge to the extradition request makes its way through the courts. The court overruled the Justice Secretary, but made it clear that the facts of this case were exceptional, and that no wider precedent was being set. The interview went ahead – you can see clips from it here.
Sympathy for regulators?
I should hope so. In June the United States Supreme Court issued its ruling on a group of cases brought by broadcasters who wanted it to declare rules on indecency – nudity and strong language – unconstitutional. It didn’t, surprising observers by issuing a very narrow ruling on the mechanics of regulation. As a result, the US regulator the Federal Communications Commission, according to the Los Angeles Times, now has to go through its backlog of complaints working out whether they are valid. Apparently is has one and a half million of them, covering thousands of broadcasts. Some backlog!