Memorandum submitted by the Broadcasting
Standards Commission (BSC)
INTRODUCTION
1. The BSC considers audience complaints
about privacy (as well as fairness and standards) in broadcasting
of all kinds. It is the only statutory body within the regulatory
framework of UK broadcasting which covers the whole field of broadcasting;
radio and television, public corporations (including the BBC)
and commercial broadcasters, both terrestrial and satellite. This
includes text, cable and digital services. Its overarching codes
must be reflected by all the broadcasting regulators. The number
of people who complain to the BSC and the feedback received from
complainants suggest that they value access to a cost-free alternative
to court.
2. The BSC welcomes the opportunity to contribute
to the Committee's inquiry into privacy and media intrusion.
CONSTITUTION AND
ORGANISATION
3. The BSC came into being on 1 April 1997,
following the passing of the Broadcasting Act 1996. The BSC is
the successor body to the Broadcasting Complaints Commission,
which had been established under the Broadcasting Act 1980 to
deal with fairness and privacy complaints, and the Broadcasting
Standards Council.
4. The BSC consists of a chairman, deputy
chairman and such other lay members, up to a total of 15, as are
appointed by the Secretary of State for Culture, Media and Sport.
There are currently nine other members. Commissioners are drawn
from a variety of backgrounds, including politics, broadcasting,
business and religion. Current Commissioners' biographies appear
at Annex 1. The BSC's membership combines demonstrable independence
with recognised expertise.
5. Commissioners are supported by a staff
of 21, who include a team of six dealing with fairness and privacy
complaints. The team is headed by a lawyer and several members
of the team have legal qualifications or training. The services
of two legal advisers are also available on a consultancy basis.
STATUTORY FRAMEWORK
6. Under the Broadcasting Act 1996, the
BSC has three main statutory functions in relation to fairness
and privacy:
(a) to produce codes of guidance as to the
principles to be observed and practices to be followed by broadcasters.
(b) to consider and adjudicate on complaints.
(c) to commission research.
7. A privacy complaint is a complaint that
relates to unwarranted infringement of privacy in programmes that
are broadcast, or in connection with obtaining material that is
included in such programmes (ie in the making of the programme).
The actions of a programme-maker in collecting material for a
programme can thus infringe privacy, not just the broadcast itself.
8. A privacy complaint can be made by (or
on behalf of) an individual or a body, whether incorporated or
not, but the privacy of that individual or body must have been
infringed if the complaint is to be entertained. It should be
made within a reasonable time after the programme was transmitted.
A reasonable time is usually considered to be within three months
in the case of television programmes and six weeks in the case
of radio programmes. This is to coincide with the broadcasters'
obligations to keep a recording of the programme for these periods.
Only in exceptional circumstances can the BSC consider a privacy
complaint made on behalf of someone who died more than five years
before transmission of the programme in question.
9. The BSC cannot entertain, or proceed
with consideration of, a complaint if the matter complained of
is the subject of legal proceedings. The BSC may also refuse to
entertain or cease to consider a complaint if there is a legal
remedy available to the complainant. However, as the BSC is designed
to offer a remedy that is affordable and normally speedier than
court proceedings, it rarely exercises this right.
10. The BSC may direct the broadcaster or
regulator to publish a summary of the BSC's findings in relation
to a complaint within the period and in the manner specified eg
in print or on air. In practice the BSC only exercises this discretion
where the complaint has been upheld in whole or in part. The BSC
publishes regular reports summarising the outcome of complaints.
Anonymity can be granted where, for example, publishing a complainant's
name would compound a breach of privacy.
11. The power to give directions is the
only sanction currently available to the BSC. However, it is widely
recognised that being required to broadcast an adverse finding
is serious and embarrassing.
12. Subject to Parliamentary approval, Ofcom—the
Office of Communications—will assume the BSC's fairness
and privacy functions. Ofcom will also inherit current regulators'
powers to impose sanctions for broadcasters' failings to comply
with Ofcom's fairness and privacy codes. Ofcom will also have
the power to impose sanctions on the BBC and the Welsh Authority
in respect of their public service channels. Ofcom will continue
to provide complainants with an informal, but informed, independent
and free means of redress.
PRIVACY CODE
13. A copy of the current privacy code,
adopted in 1998, is attached at Annex 2. The code is presently
in the course of revision.
14. The privacy code includes the following
key provisions:
(a) An infringement will be acceptable where
there is an overriding public interest in disclosure. The means
of obtaining information must be proportionate to the matter under
investigation.
(b) The private lives of most people are
of no legitimate public interest and, although people in the public
eye are in a special position, they do not forfeit the right to
privacy in all situations.
(c) Secret recording is only justified if
it serves an overriding public interest.
(d) Doorstepping of people not in the news
is only justified if there has been repeated refusal to grant
an interview or the protagonist might disappear and must even
then serve an overriding public interest.
(e) Broadcasters should not add to the distress
of people caught up in emergencies or suffering a personal tragedy.
(f) Children's vulnerability should be a
prime concern for broadcasters. They should not be questioned
about private family matters and, if under 16, should not be interviewed
on matters of significance without the consent of their parents
or those in loco parentis.
(g) When granted access to police operations
and other agencies, emergency services or bodies working with
vulnerable people, programme-makers should identify what they
are doing and should stop filming or leave private property if
asked to do so in the absence of any overriding public interest.
15. The BSC's code reflects the balancing
exercise that the European Convention on Human Rights requires,
in particular between the right to respect for private life in
Article 8 and the right to freedom of expression in Article 10
in that infringements of privacy have to be justified by an overriding
public interest in disclosure of the information. This echoes
Convention concepts of "legitimate aims" and "pressing
social need" and would include, eg revealing crime or disreputable
behaviour and disclosing significant incompetence in public office.
PROCEDUCE FOR
HANDING COMPLAINTS
16. The BSC's procedures are designed to
offer an affordable and relatively speedy remedy to those aggrieved.
However, the BSC does not have the resources to undertake an in-depth
investigation into the truth or otherwise of statements made by
the parties. The process is essentially adversarial in nature
and the evidence before the BSC is normally confined to what is
produced by the parties. Where there is a conflict of evidence,
a hearing is the chief means at the BSC's disposal to test the
credibility of the parties.
17. The Commissioners play the major role
in the BSC's system of handling privacy complaints. They meet
every fortnight (other than in August and over public holidays).
A detailed description of the BSC's current procedures is annexed
at Annex 3 and a short summary is set out below.
18. Straightforward complaints that appear
to be within the BSC's remit can be entertained by officials but
the majority are referred to an Entertainment Group consisting
of three Commissioners, who decide whether or not the complaint
should be entertained. If it is entertained, a copy of the complaint
is sent to the broadcaster, who is required to make a statement
in response. A decision is then taken as to whether to require
a second round of statements and/or a hearing.
19. The complaint is then considered by
a panel of three Commissioners, either with the assistance of
a hearing or, if no hearing is considered necessary, at a findings
meeting. Hearings are held in private and are relatively informal.
The complainant can be represented, as well as attend in person,
and both parties can, with the approval of the Commissioners,
bring witnesses in support.
20. 2001-02 targets for the average time
taken to reach signing of the adjudication were 33 weeks where
a hearing was required and 24 weeks where no hearing was required.
The BSC achieved 25 weeks in the first case and 19 weeks in the
second. This year's targets are 32 weeks and 22 weeks respectively.
RESEARCH
21. Research commissioned by the BSC in
collaboration with the BBC, ICSTIS, ITC, IPPR and the Radio Authority
entitled The Public Interest, the Media and Privacy, (attached
at Annex 4—not reproduced here) found that most people
are familiar with the concept of the public interest. Where something
might affect a single person, it can be in the public interest
if that effect involves some general issue that, in turn, has
impact upon a wider population, eg serious crime. The research
found that most of the public approve of quite firm parameters
being set on what the media can do in the name of serving the
public interest. They felt that everyone has a right to privacy,
but such a right was conditional on his or her behaviour. The
higher the degree of public interest, the greater the degree of
intrusion permitted and the consequences of intrusion were also
important. Widespread scepticism was expressed about the motives
of media, particularly the tabloid press, in intruding into privacy.
It was widely felt that the media, even though they might be acting
in the public interest, were primarily, and cynically, acting
in their own interest, to gain an audience.
22. The research also found that the public
expect a high degree of public interest to be demonstrated to
justify surreptitious recording. There is a strong view that the
impact of media exposure on the people concerned must be appropriate
to the reason for intrusion. Children are considered to have virtually
inviolable rights to privacy. The giving of consent is seen as
absolving the media from charges of infringing privacy, but there
was a concern that people giving personal information may not
always have been in a fit state of mind to make a rational decision
(eg after a bereavement).
PRIVACY COMPLAINTS—THE
LAST FIVE
YEARS
23. References to privacy complaints include
both complaints solely about infringement of privacy and complaints
about infringement of privacy combined with unfairness.
24. Annexes 5-7 set out information regarding
all privacy complaints in respect of the years 1998-99 to 2001-02
(April to March) and, in relation to adjudicated complaints, for
the whole 1998-2002 period. The diverse nature of the complaints
and the programmes attracting complaints, and the relatively small
number of cases, make it difficult to identify long-term trends
or to draw confident, detailed conclusions. Nevertheless, the
record of the last five years in respect of complaints entertained
and adjudicated does suggest certain points, summarised below.
Entertainment
25. The vast majority of complainants about
privacy also complain about unfairness. The proportion of solely
privacy complaints entertained between 1 April 1998 and 31 December
2002 is roughly the same as the proportion of joint fairness and
privacy complaints entertained and there are no discernible trends
as between the two over the years. The only ground for not entertaining
complaints about privacy (other than those grounds, such as delay,
which apply to all complaints) is that privacy has not been infringed.
This tends to be because, for example, there has been trespass
rather than an infringement of privacy, or nothing of a private
nature has been disclosed. It is rare for solely privacy complaints
to be stopped by legal proceedings (two between April 1998 and
December 2002) but 15 combined fairness and privacy complaints
have been stopped by legal proceedings. In three cases complaints
have been stopped by the broadcaster apologising.
26. The BSC accepts privacy complaints from
companies and corporate bodies. In 1997 DSG Retail Limited (Dixons)
complained about secret filming in its stores. The BSC upheld
the complaint and a copy of the adjudication is attached at Annex
8 (not reproduced here). In this case, the BBC challenged
the jurisdiction of the BSC to consider privacy complaints by
incorporated bodies but the BSC's decision was upheld by the Court
of Appeal. Privacy complaints by other corporate bodies, for example
a women's refuge (disclosure of address) and school (filming of
children in the playground), have also been entertained.
27. The BSC also accepts privacy complaints
made on behalf of those who have died within five years before
the broadcast of the programme and complaints that privacy has
been infringed by broadcast of information about relatives of
the complainants. By way of example, a copy of the adjudication
of Mr Andrew Fletcher's complaint is attached at Annex 9 (not
reproduced here).
Adjudicated complaints
28. Most privacy complaints relate to infringement
of privacy in the programme as broadcast, though many concern
infringements of privacy in both the programme as broadcast and
the making of the programme. Very few complaints are made about
the infringement of privacy solely in the making of the programme.
(A programme must have been broadcast before a complaint can be
entertained.)
29. Few people request anonymity in adjudications.
Examples of where complainants have done so are where personal
family matters, criminal accusations, anti-social behaviour or
mental illness are involved or the complainant is a minor.
30. A hearing has been held in slightly
over a fifth of privacy cases adjudicated. Hearings are held in
respect of both solely privacy complaints and combined fairness
and privacy complaints. The number of hearings has declined slightly
over the years. This is in line with the general trend as regards
complaints as a whole, as the BSC endeavours to ensure that hearings
are held only where necessary in order to minimise the inevitable
delay.
31. The broad analysis of type of complainant
set out in Annex 7, suggests that individuals with complaints
in a personal capacity are the largest body of complainants. They
are followed by businesses (which include two public companies
and a handful of sole traders, but are mainly small businesses),
then professionals, such as doctors and teachers, and those with
some connection with crime or criminals. Few people in political
or public life complain. Individuals with complaints in a personal
capacity are most likely to have them upheld, followed by professionals
and, some way behind, businesses and employees.
32. News and current affairs programmes
attract the most complaints but only about a quarter of them are
upheld. Next comes investigative programmes, although more complaints
are upheld here, nearly a third. The popularity of crime reconstructions
has led to an increasing number of complaints, but few are upheld.
Complaints about observational documentaries, dealing with such
subjects as the work of public services, are most likely to be
upheld.
33. In five years there have only been eight
privacy complaints about radio programmes; however, this is perhaps
not surprising in view of the much more limited scope for infringement
of privacy in radio. For the first time in five years, there were
in 2002 complaints adjudicated (two) in respect of teletext.
34. Among television broadcasters ITV attracts
the most complaints, but has a low rate of complaints upheld.
There is no accumulation of evidence that any broadcaster is especially
likely to transgress. Virtually all complaints (all but three)
are about terrestrial broadcasters. This may reflect the lower
audience numbers for satellite/cable broadcasters and perhaps
a consequent lesser degree of concern.
35. Many people complained about being filmed
in public places, the nature of their complaint depending on the
circumstances in which they were filmed. Of the other complaints,
disclosure of personal or supposedly confidential information
was the most common reason, followed by secret filming and doorstepping.
Complaints about secret filming or doorstepping were in many cases
linked with fairness complaints and the outcome was often influenced
by whether the fairness complaint was upheld (if so, infringement
of privacy was also likely to be judged to be unwarranted and
vice versa). In some cases, though, doorstepping was misused for
dramatic effect. The likelihood of those complaints being upheld
followed the same order. There is a noticeable, though still small,
number of complaints about filming victims of car accidents, sometimes
in the teeth of their objections. All complaints of this nature
were upheld and, by way of example, the adjudication in respect
of Mr Knapper's complaint is attached at Annex 10 (not reproduced
here). The Commission remains concerned that broadcasters
should not take undue advantage of access to the operations of
police and emergency services. More than half the complaints about
broadcasting photographs of complainants were upheld. A significant
number of people objected to filming of their house or car, often
in connection with crime reconstructions. These complaints were
unlikely to be upheld if they did not identify the owner.
36. Nearly a third of all privacy complaints
adjudicated during the last five years have been upheld in whole
or in part. The most common reasons for not upholding a complaint
were that the infringement was warranted, the complainant was
not identifiable, the information or image was already in the
public domain, consent had been given or implied, filming took
place in public or the activity in question did not attract any
expectation of privacy.
37. Copies of adjudications in respect of
some typical complaints are attached at Annex 11 (not all reproduced
here—see below). In view of the recent ruling by the
European Court of Human Rights on Mr Geoffrey's Peck's case, the
BSC's adjudication in respect of Mr Peck is also attached for
interest, although it dates back to 1997 (see part of Annex
11).
January 2003
Annex 1
COMMISSIONER'S BIOGRAPHIES
CHAIRMAN
Lord Dubs of Battersea
Lord Alf Dubs, was a member of the Broadcasting
Standards Council between 1988 and 1994, and became Deputy Chairman
in 1995, he also served as Deputy Chairman of the Broadcasting
Standards Commission until 1997.
Lord Dubs was, from 1997 until December 1999,
Parliamentary Under-secretary of State, Northern Ireland Office.
He was the Deputy Chairman of the Independent Television Commission
between July 2000 and February 2001. Lord Dubs has spent much
of his career in politics, both at local and national level. He
was Member of Parliament for Battersea between 1979 and 1987.
Between 1972 and 1977 Lord Dubs was Chairman of Westminster Community
Relations Council and between 1988 and 1995 Director of the British
Refugee Council.
DEPUTY CHAIRMAN
Suzanne Warner
Became Deputy Chairman on 1 January, 1998 and
takes responsibility for oversight of standards work. She was
Group Director of Government Relations for Cable and Wireless
plc 1995-97. A past non-executive Director of South Thames Regional
Health Authority and Broadmoor Hospital Authority. Formerly an
adviser to the Deputy Chairman of British Telecom, Executive Director
of Food from Britain and Secretary and acting Chairman of the
Economic and Social Research Council.
MEMBERS
David Boulton
Is a published author and an established broadcaster.
A Former Head of News and Current Affairs at Granada Television,
where he was also Head of both Arts and Drama documentaries. More
recently, he was a broadcasting consultant, 1990-96. He is currently
Editor of the quarterly religious magazine, Sea of Faith.
Uday Dholakia
Uday is Senior Partner at Global Consulting
UK Ltd. Previously he was a Member of Central Television's Regional
Advisory Council, 1993-95. Since 1995 he has been a Trustee of
the National Employment Policy Institute and in 1997 he became
a Member of the East Midlands Electricity Consumer Committee.
He was elected Vice President of the Small Business Bureau in
1998. Uday is also a Member of the Leicestershire Probation Board.
He currently chairs the BSC's IT and equal Opportunities Committees.
Geoff Elliott
Geoff has spent most of his career in journalism.
He is currently Head of Journalism at the University of Central
Lancashire, Preston. Between 1994-96 he was a Member of The Press
Complaints Commission. A Member of the Press Complaints Editors'
Code Committee 1991-94 and a Member of the Press Council 1987-90.
Strachan Heppell CB
Before joining the Commission in 1996, Strachan
held various senior Civil Service posts both within the United
Kingdom and in Hong Kong. He was Deputy Secretary at the Department
of Health 1983-95, and Social Security Adviser to the Hong Kong
Government in 1977. He is a Member of the management board of
the European Medicines Evaluation Agency and Chairman of Family
Fund Trust. Currently he is a Visiting Fellow at the London School
of Economics.
The Right Reverend Richard Holloway
Richard was Bishop of Edinburgh between 1986
and October 2000. He was elected Primus, Scottish Episcopal Church
in 1992. He has spent most of his career associated with the Church.
He has held a number of positions including the Chair of the BMA
Steering Group on Ethics and Genetics. A former Chair of the International
Anglican Family Network, and between 1990 and 1997 was a Member
of the Human Fertilisation and Embryology Authority. He is currently
a Trustee of the Waverley Care Trust. He has been a reviewer and
writer for the Guardian, Scotsman, Herald, Times, Independent
and a frequent presenter on radio and television. He has written
a number of books.
The Rev Rose Hudson-Wilkin
Rose is a Church of England Vicar at All Saints
in Haggerston, North London. She was a Member of the General Synod
between 1995-98. Previously Rose was a presenter for Central Television
and a Member of the ITC's Midlands Viewer Consultative Committee.
Maggie Redfern
Following a career in broadcasting, Maggie became
a teacher of English and Media Studies at a London school in 1994.
Previously she spent over 10 years at the BBC in a variety of
roles including producer and senior producer on Radio Four, and
Chief Publicity Officer at BBC Radio. She has acted as a consultant
to the Home Office Urban Development Unit and researched and wrote
reports and publications for the National Consumer Council.
Sally O'Sullivan
Has been Chief Executive of Cabal Communications
since 1998. Previously she was Deputy Editor of Woman's World
(1977-78), and Women's Editor, Daily Record (1980). More recently
she was Editor for various top level magazines including; "She"
(1989), "Harper's and Queens" (1989-91) and Editor-in-Chief,
"Homes and Gardens" (1996-98). More recently Cabal Communications
has launched it's own lads magazine "Front". She is
a non-executive Director of London Transport and Anglian Water,
and a Member of the Nuffield Council on Bioethics and the Advisory
Council on the misuse of drugs.
Kath Worrall
Is a broadcasting consultant with successful
senior management experience in both the commercial and public
service sectors, who has worked overseas advising on broadcasting
legislation and regulation. She has held a number of senior broadcasting
posts in Britain, which include the Director of Broadcasting at
Border Television, the Secretary, BBC Scotland, and Managing Editor,
BBC Cumbria.
Annex 2
PRIVACY CODE
PREAMBLE TO
CODE ON
FAIRNESS AND
PRIVACY
1. In any democratic society, there are
balances to be struck between the citizen's right to receive information
and ideas, and the responsibilities of broadcasters and journalists
to behave reasonably and fairly and not to cause an unwarranted
infringement of a citizen's basic right to privacy.
The guidance in this Code cannot resolve that
dilemma. But it sets out what the Broadcasting Standards Commission
considers are the principles to be observed and practices to be
followed by all broadcasters (including the providers of teletext
services) to avoid unjust or unfair treatment in radio and television
programmes, and to avoid the unwarranted infringement of privacy
in the making and broadcasting of such programmes. Broadcasters
and broadcasting regulatory bodies should reflect this guidance
in their own codes and guidelines.
The Commission will, as required by the Act,
take the provisions of this Code into account as it considers
complaints and the Code will be revised, as necessary, in light
of its experience. But the guidance in a code can never be exhaustive.
Whether the needs of fairness and privacy have been met can only
be judged by considering each particular case in light of the
information the broadcaster had available after diligent research
at the time the programme was made or broadcast.
CODE ON
PRIVACY
General
14. The line to be drawn between the public's
right to information and the citizen's right to privacy can sometimes
be a fine one. In considering complaints about the unwarranted
infringement of privacy, the Commission will therefore address
itself to two distinct questions: First, has there been an infringement
of privacy? Second, if so, was it warranted?
An infringement of privacy has to be justified
by an overriding public interest in disclosure of the information.
This would include revealing or detecting crime or disreputable
behaviour, protecting public health or safety, exposing misleading
claims made by individuals or organisations, or disclosing significant
incompetence in public office. Moreover, the means of obtaining
the information must be proportionate to the matter under investigation.
15 Privacy can be infringed during the obtaining
of material for a programme, even if none of it is broadcast,
as well as in the way in which material is used within the programme.
16. For much of the time, the private lives
of most people are of no legitimate public interest. It is important
that when, for a short time, people are caught up, however involuntarily,
in events which have a place in the news, their situation is not
abused or exploited either at the time or in later programmes
which revisit those events. When broadcasters are covering events
in public places, they should ensure that the words spoken or
images shown are sufficiently in the public domain to justify
their broadcast without the consent of the individuals concerned.
When filming or recording in institutions, organisations or agencies
where permission has been given by the relevant authority or management,
broadcasters are under no obligation to seek the individual consent
of employees or others whose appearance is incidental or where
they are essentially anonymous members of the general public.
However, in clearly sensitive situations in places such as hospitals
or prisons or police stations, individual consent should normally
be obtained unless their identity has been concealed. Broadcasters
should take similar care with material recorded by CCTV cameras
to ensure identifiable individuals are treated fairly. Any exceptions
to the requirement of individual consent would have to be justified
by an overriding public interest.
17. People in the public eye, either through
the position they hold or the publicity they attract, are in a
special position. However, not all matters which interest the
public are in the public interest. Even when personal matters
become the proper subject of enquiry, people in the public eye
or their immediate family or friends do not forfeit the right
to privacy, though there may be occasions where private behaviour
raises broader public issues either through the nature of the
behaviour itself or by the consequences of its becoming widely
known. But any information broadcast should be significant as
well as true. The location of a person's home or family should
not normally be revealed unless strictly relevant to the behaviour
under investigation.
THE USE
OF HIDDEN
MICROPHONES AND
CAMERAS
18. The use of secret recording should only
be considered where it is necessary to the credibility and authenticity
of the story, as the use of hidden recording techniques can be
unfair to those recorded as well as infringe their privacy. In
seeking to determine whether an infringement of privacy is warranted,
the Commission will consider the following guiding principles:
(i) Normally, broadcasters on location should
operate only in public where they can be seen. Where recording
does take place secretly in public places, the words or images
recorded should serve an overriding public interest to justify:
— the decision to gather the material;
(ii) An unattended recording device should
not be left on private property without the full and informed
consent of the occupiers or their agent unless seeking permission
might frustrate the investigation by the programme-makers of matters
of an overriding public interest.
(iii) The open and apparent use of cameras
or recording devices on both public and private property, when
the subject is on private property, must be appropriate to the
importance or nature of the story. The broadcaster should not
intrude unnecessarily on private behaviour.
19. When broadcasting material obtained
secretly, whether in public or on private property, broadcasters
should take care not to infringe the privacy of bystanders who
may be caught inadvertently in the recording. Wherever it is clear
that unfairness might otherwise be caused, the identity of innocent
parties should be obscured.
20. Broadcasters should apply the same rules
to material shot secretly by others as they do to their own recordings
in taking the decision whether to broadcast the material.
21. When secret recording is undertaken
as part of an entertainment programme, care should also be taken
to prevent the unwarranted infringement of privacy. Those who
are the subjects of a recorded deception should be asked to give
their consent before the material is broadcast. If they become
aware of the recording and ask for it to stop, their wishes should
be respected. In a live broadcast, especial care should be taken
to avoid offence to the individuals concerned.
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