MEDIA BULLETIN
Edition 31 - November 2008
Our last bulletin considered in depth
recent developments in the law of privacy.
This bulletin has a regulatory emphasis and
concentrates on the newly published
Ofcom Code and recent Ofcom
Adjudications.
OFCOM CODE
In October 2008 Ofcom published a revised
version of The Ofcom Broadcasting Code,
which was published in 2005. There are
very few changes, the most numerous
being grammatical or linguistic tinkering
which make no difference to the
applicable principles and rules.
There are two changes which are worth
highlighting:
- Rule 3.3, which prohibits payments to
convicted or confessed criminals for
programme contributions relating to
their crimes has been extended to
cover payments not just made directly
but all payments made both directly
and indirectly to criminals.
- Rule 10.15 has been removed entirely.
This rule prohibited television
broadcasters from broadcasting
appeals for donations to make
programmes or fund their services.
This rule has now been replaced by
what was Rule 10.16 - which previously
covered only radio.
This has now been
renumbered as 10.15 and reads as
follows:
“Appeals for funds for programmes or
services
10.15 Broadcasters may broadcast
appeals for donations to make
programmes or fund their service. The
audience must be told of the purpose of
the donation and how much has been
raised as a result of the appeal. All
donations must be separately accounted
for and used for the purpose for which
they were donated.”
OFCOM ADJUDICATIONS
It is interesting to note from recent Ofcom
Broadcast Bulletins how rarely programme
complaints are upheld. The September,
October and November 2008 bulletins list
complaints relating to over 800
programmes; only 42 standard breaches
were upheld and a mere three relating to
fairness and privacy.
Standards Cases
Most of the upheld standards cases relate
to the broadcast of inappropriate language
or sexual material, competitions and
undue prominence. In the light of the
many earlier decisions by Ofcom in these
areas it is difficult to understand how
much of the material came to be
broadcast:
Language
The broadcast of such language as:
- “fuck, fucked and shit” at 14.45
- “fucking psycho bastard” at 12.20
- “fuck you in the ass” at 11.30
were all, unsurprisingly, found to be in
breach of Rule 1.14 of the Code which
requires that “the most offensive
language must not be broadcast before
the watershed or when children are
particularly likely to be listening”.
A more interesting case was that relating
to the Scott Mills Radio 1 programme
broadcast on 12 August 2008 at 16.00.
A regular feature in this radio programme
is an item called ‘Badly Bleeped TV’ in
which extracts from TV or radio are played
with words ‘bleeped’ out. The words
themselves are later revealed as being not
offensive. However, the remaining
beginning and ending sounds of the words
give the impression the ‘bleep’ is masking
an offensive word. On this occasion, two
of the clips included words that began with ‘f’ and these were edited in such a way
that one listener believed that he had heard the word “fuck”.
Ofcom accepted that the feature itself was
in keeping with the irreverent humour of
the Scott Mills show and that its suggestive
style was likely to have been in line with
the expectations of regular listeners.
In respect of the complaint, Ofcom
considered, as regards the first instance,
that while listeners had been led to
believe the word “fucked” was the missing
word, “fucked” was not clearly audible.
However in relation to the second word in the broadcast, Ofcom noted that it sounded like the word “fuck”. Therefore, by broadcasting a word that had been
edited to sound identical to the word “fuck”, the programme
was in breach of Rule 1.14 of the Code.
Prize Competitions
Notwithstanding the widespread publicity that has been given
to prize competitions and the obligation under Rule 2.11 that “competitions should be conducted fairly”, Ofcom found a
breach of this rule on three occasions when during radio
broadcasts a presenter:
- called her neighbour and put her on air as the winner
of a competition because as a result of technical
difficulties text responses to the competition could
not be retrieved
- announced a fictitious name as the winner because of a
telephone system failure
- had pre-determined the winner of the competition prize,
pre-recorded his ‘entry’ and played it ‘as live’ instead of
running a genuine competition.
Undue Prominence
Although the prohibitions on undue prominence (Rule 10.4)
and products being promoted in programmes (Rule 10.3) are
well known, some broadcasters still seem to struggle with
what is permitted.
Information about brands and products in a programme can
be justified but the more commercial the product or service
and the more prominent the references, the greater the risk
that such references may constitute undue prominence. In
recent complaints upheld by Ofcom the products featured
heavily and references to them were all in favourable terms.
Examples of the sort of references which Ofcom identified as
falling the wrong side of the line of acceptability were:-
- Just about ask any consumer and they’ll say “Yep *** a
brand that works as well as the more expensive brands for
less”
- “I would shop here and I would buy this”
- “you’ve saved yourself a few quid there”
- “I’ve been converted”
Protection of Children
The World’s Got Talent is a spin-off from Britain’s Got Talent
which features a variety of performers from around the world
in local versions of the ITV talent show. The programme
complained of included acts such as a man who climbed into
a giant washing machine and rotated inside, a human
dartboard, a performer eating glass and another setting
himself on fire. The programme was broadcast on ITV1 at
7pm on a Sunday evening.
Ofcom considered complaints from viewers who were
concerned about children emulating activities contained in
the programme. The performances were introduced with the
following guidance:
“Across the globe viewers have watched some of the world’s
greatest daredevils, who push themselves to perform
amazing and somewhat unspeakable acts. Are they brave?
Yes. Are they all a bit crazy? Definitely. Do not try this at
home!”.
This was followed by another warning as the man climbed into
the giant washing machine:
“Do not, I repeat, do not try this at home under any
circumstances”.
Rule 1.3 requires that children must be protected by
appropriate scheduling from material that is unsuitable for
them.
Ofcom concluded that the attempts by the broadcaster to
alert viewers to the dangers of such behaviour were
insufficient, in the case of this particular kind of material, in
this particular kind of programme, and with this particular
audience, necessarily to provide sufficient protection from
harm for the significant numbers of younger viewers watching
(13% of the audience).
Ofcom took the view that verbal warnings would not
necessarily have registered with younger viewers – who would
have been attracted to and entertained by the image of a
human being revolving in the porthole window of a washing
machine. The concern was that some of the warnings may
have been lost on children where the content was exciting,
fast moving and eye catching.
Ofcom decided that the broadcaster, despite the warnings,
failed to offer adequate protection to child viewers in this
specific instance. The broadcast of this programme was
therefore in breach of Rule 1.3 and also Rule 1.13 which
prohibits the broadcast of material before the watershed
which portrays dangerous behaviour that is likely to be easily
imitable by children unless there is editorial justification. In
this case there was none as the programme was solely for
entertainment.
Fairness and Privacy Cases
There are two Ofcom decisions relating to privacy which are
of some assistance for news and documentary programme
makers. The first relates to an item broadcast on the BBC’s
North West Tonight on 4 February 2008 and the second in the
programme ‘Weekend Nazis’ broadcast on BBC1 on 23 August
2007.
Complaint by Lady Winterton
The programme included a report alleging that Lady Jane Ann
Winterton and her husband Sir Nicholas Winterton (both of
whom are MPs) were “ripping off the tax payer by claiming
expenses for their London flat”. The report stated that the
couple had paid off the mortgage on their London flat but had
then transferred it into a trust so that they could claim the
rent for the flat through their Parliamentary expenses.
The report included external shots of the complainant’s house in Cheshire (one of which showed the reporter ringing the
doorbell) with the following commentary:
“They weren’t at their Cheshire home today and their
London office told us they wouldn’t be explaining themselves
on camera”.
Lady Winterton complained that her privacy was
unwarrantably infringed in the making of the programme in
that her home was filmed without her consent and that her
privacy was unwarrantably infringed in the broadcast of the
programme because that footage was broadcast without her
consent.
The BBC said that the story was of considerable public
interest and that North West Tonight was anxious to give it
proper coverage including any comment from either Lady
Winterton or her husband. Having previously failed to
contact either Lady Winterton or her husband, the
programme makers decided to try to contact them by sending
a reporter to their home in Cheshire.
Having examined the footage in question, Ofcom concluded
that there was no reason why the filming of the reporter’s
approach to the front door of the property would have
infringed Lady Winterton’s privacy to any greater degree than
might have been the case had a member of the general public
approached the door using the same pathway. Nor in Ofcom’s
opinion did this footage contain any inherently private or
particularly sensitive information about Lady Winterton that
was not already available to the general public since only the
exterior of the property was filmed. As a result Ofcom
concluded that the filming of the property in these
circumstances was not intrusive into Lady Winterton’s
personal and family life.
Ofcom recognised that there is an expectation that a
broadcaster should not disclose the location of a person’s
home or family unless it is warranted. However only exterior
shots of the house were included and no house number, house
name or street name was disclosed and no mention of the
location of the house was made other than that it was in
Cheshire. In Ofcom’s view only those already familiar with
the property would have been able to identify it from the
footage broadcast in the programme.
Taking into account all of these factors Ofcom found that
Lady Winterton did not have a legitimate expectation of
privacy either in relation to the filming of the outside of her
home or the broadcast of that footage.
Complaint by Glenn Swallow
On 27 August 2007, BBC1 broadcast the documentary
Weekend Nazis. The programme focused on the annual “War
and Peace Show” in Kent during which event, World War II re
enactment groups put on displays. The programme
questioned why the majority of the World War II re-enactors
chose to depict German soldiers and why, out of those, the
majority chose to depict the “Waffen-SS”. Was there a “dark
side” (that is, the presence of extremist right wing views) the
programme asked to what was regarded by many as innocent
fun in recreating “living history”.
Mr Glenn Swallow is a military re-enactor and a leading
member of the Second Battle Group (the “SBG”),
a re-enactment group who portray the 1st SS Panzer Division.
Mr Swallow first appeared in the programme dressed in a SS
uniform. He was identified by the programme presenter who
asked him questions about war crimes to which Mr Swallow
was shown answering “No comment”.
Mr Swallow was also shown in conversation in a beer tent
reserved for show organisers and re-enactors. An undercover
reporter equipped with a hidden camera and a microphone
recorded Mr Swallow’s conversation and, although he could
not be clearly seen in the footage, his voice was broadcast
and his words were subtitled on screen. The presenter
introduced this part of the programme by stating that “Glenn
Swallow, after quite a few beers was only too keen to share
his political views”. The programme then included the
following comment made by Mr Swallow:
“If the Waffen-SS existed now – it’s too late for me now– I would join. I believe we should be sorting these ****ing
Muslims out, personally”.
Mr Swallow complained that his privacy was unwarrantably
infringed in both the making and broadcast of the
programme, in that:
i) the programme makers did not seek Mr Swallow’s
permission to conduct any interview with him;
ii) Mr Swallow was named in the programme;
iii) he was secretly filmed in the beer tent having a private
conversation in which he expressed his personal views.
Dealing with each of these complaints in sequence Ofcom
reached the following conclusions:
(a) Mr Swallow did not have a legitimate expectation of
privacy in relation to recording of the ‘no comment’ footage.
The footage was filmed at a public event during which no
restrictions were placed on the programme makers by the
event organisers. The programme makers had openly
attended the War and Peace venue with their film equipment
and had filmed openly.
They were engaged in recording short ‘vox pop’ style
interviews designed to question the motivation of the reenactors.
Mr Swallow had been present while the reporter
had attempted to question another SBG member and on being
questioned himself Mr Swallow responded “no comment” several times, did not seek to remove himself from the
filming and did not disclose any information of a private
nature.
(b) In the context in which he was named in the programme
Mr Swallow did not have a legitimate expectation of privacy.
He was named in the context of his leadership of the SBG and
he was already publicly associated with the SBG.
(c) The final head of complaint related to
the undercover filming of Mr Swallow in
the beer tent. Mr Swallow complained
that his privacy was infringed because he
was secretly filmed having a private
conversation in which he expressed his
personal views. Ofcom considered this
head of complaint in relation to both the
making and broadcast of the programme.
The making of the programme
Ofcom first considered whether Mr
Swallow had a legitimate expectation of
privacy in relation to being secretly
filmed. The filming took place in the early
hours of the morning in beer tents that
were “effectively private parties” and Mr
Swallow was secretly recorded while in a
situation in which he assumed he was
having a private conversation.
Ofcom therefore concluded that Mr
Swallow did have a legitimate expectation
of privacy and his privacy had been
infringed by the recording.
However Ofcom concluded that such
infringement was warranted. There was
prima facie evidence of a story in the
public interest. Research for the
programme took place over two years
during which time researchers witnessed
numerous extreme and racist remarks at
earlier War and Peace events. The
broadcaster also stated that the
programme researchers had “attended a
session at which participants in the show
sang Nazi songs glorifying Hitler and the
Third Reich”.
The broadcast of the programme
Having decided that Mr Swallow’s privacy
was infringed in the making of the
programme Ofcom naturally confirmed this
was also the case in the broadcast of
programme. Ofcom then had to decide if
the infringement was “warranted” in
which respect the Code states:
“. . where broadcasters wish to justify an
infringement of privacy as warranted,
they should be able to demonstrate why in
the particular circumstances of the case,
it is warranted. If the reason is that it is
in the public interest, then the
broadcaster should be able to
demonstrate that the public interest
outweighs the right to privacy.”
The BBC argued that a significant public
interest was served by the broadcast of the
programme in that it showed that there
were individuals with extreme racist views
in a prominent re-enactment organisation.
Furthermore it was in the public interest
to expose a senior member of the SBG reenactment
group as holding racist opinions
in light of the organisation’s public
disavowal of extremist viewpoints.
Ofcom was not persuaded that the public
interest in broadcasting these comments,
in which Mr Swallow was named, was
sufficient to warrant the infringement of
his privacy. Mr Swallow holds no publicly
accountable office, nor does the SBG reenactment
group of which he is a member
hold any publicly accountable function or
receive public money.
It further noted that the filming was at a
private, social occasion at which alcohol
was served, indeed the programme
recognised that the re-enactors had “hit
the beer tent” and Mr Swallow was filmed
by the programme makers after he had had “quite a few beers”.
Ofcom concluded that although Mr
Swallow’s highly offensive views broadcast
in the programme were at odds with the
publicly stated principles of the
organisation in which he is a prominent
member, for the reasons given above the
public interest in naming him and
broadcasting the comments did not
outweigh the infringement of his privacy.
An interesting but perhaps surprising
decision.
Ofcom note to Broadcasters
In September 2008 Ofcom issued the
following note to all broadcasters:
All Licensees are reminded of the
requirements contained in their Licences
to make and retain recordings of all
output, and supply recordings “forthwith” on request. For the avoidance of doubt,
these obligations are non-negotiable and
compulsory. Ofcom is very concerned
about Licensees who are not complying
with these duties. Failure fully to adhere
to these requirements may result in
Ofcom considering the imposition of
statutory sanctions.
If you would like any further information about the issues raised in this newsletter, or any other aspect of media law, please contact any member of Goodman Derrick LLP's .
This guide is for general
information and interest
only and should not be
relied upon as providing
specific legal advice.
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