Select Committee on Culture, Media and Sport Fifth Report

2. The broadcasters



25. All UK broadcasters were subject to the jurisdiction of the Broadcasting Standards Commission ("BSC"). In accordance with Sections 107 and 108 of the Broadcasting Act 1996 the BSC issues two Codes of Guidance, one dealing with privacy and fairness and the other with standards in programmes. The BBC regulated itself under its Producer Guidelines while all commercial licensees including the ITV licensees, Channel 4, Five and BSkyB, were regulated additionally by the Independent Television Commission (ITC). The ITC's Programme Code contained very similar provisions to the BBC's Producer Guidelines. The ITC was obliged by the same two sections of the Broadcasting Act 1996 "to reflect the general effect" of the BSC's Codes in its Programme Code. In preparation for amalgamation under Ofcom the ITC has been referring privacy complainants where possible to the BSC.[26]

26. The key features of the BSC regime were:

·  While complaints can relate to either the programme-making or the broadcast itself, the window for making a complaint was after the programme has been broadcast and within a reasonable time (usually three months for TV and six weeks for radio, reflecting obligations on broadcasters to keep recordings of their output for these periods). However, extensions were allowed in exceptional circumstances.

·  The BSC only accepted complaints from individuals or organisations whose privacy had actually been infringed (although we understand that some third party complaints on intrusive material could be dealt with as relating to "standards" rather than "fairness and privacy").

·  A complaint could not be entertained, or proceeded with, if it was the subject of legal proceedings. The Commission may also refuse to consider a complaint if "there is a legal remedy available"; however the BSC's submission said that this right was rarely exercised in view of the fact that the Commission was "designed to offer a remedy that is affordable and normally speedier than court proceedings".

·  In some instances where matters of fact were disputed the BSC would hold a hearing with all parties present, as well as their witnesses if necessary and Commissioners (who may themselves ask questions).

·  The Commission's only sanction was the power to direct a broadcaster to broadcast its findings and pay for publication somewhere of the complainant's choosing. The Chairman of the BSC told us that if people wanted money then they went to the courts. He said that broadcasters hated having to publish adverse findings.[27] The sanctions available to the ITC with respect to the commercial broadcasters were considerably more draconian and included large fines or even loss of licence. The joint evidence from ITV, Channel 4 and Channel Five stated that the ITC had never fined a broadcaster for a breach of its code relating to privacy.

·  The BSC told us that it expected that Ofcom would continue to offer complainants an informal but informed, independent and free means of redress. Ofcom would however have increased authority and powers flowing from its position as the integrated economic regulator.

·  There were no formal means by which complaints could be resolved. The Commission's approach, set by law, was limited to adversarial proceedings and adjudication. However, it was open to complainants to withdraw complaints in the face of adequate action by the broadcaster and the BBC's evidence recorded that happening on two occasions in 2000-02 (out of 9 privacy complaints).[28]

27. In 2001-02 the average performance targets agreed with the DCMS were: (a) 33 weeks with a hearing (25 achieved); and (b) 24 weeks without a hearing (19 achieved).[29] Lord Dubs said that one weakness of the system was its lack of speed. This was often because production teams tended to disperse after filming making reassembly for a hearing difficult.[30]


28. The BBC was covered by the BSC but also regulated itself. The BBC had a Programme Complaints Unit (PCU) for, inter alia, complaints of unwarranted infringement of personal privacy. The Unit was in the Public Policy Division and so was separated from programme-making or other output. The BBC described the Unit's activity as "rigorous and impartial investigation of complaints which suggest a serious and specific breach of the BBC's editorial standards."[31] The standards were set out in the Producers' Guidelines as required by the Charter and Agreement.

29. Where a complaint was upheld by the PCU it was up to divisional management to determine and implement remedial and/or disciplinary action. It was for the Head of PCU to recommend on-air correction. The BBC had an appeal mechanism in the form of the Governors' Programme Complaints Committee separately supported by an Editorial Adviser. The Committee would consider the matter and may require an on-air apology or correction.

Numbers of complaints

30. Between 1998-99 and 2001-02 the BSC received about 50 complaints per year involving privacy (compared to up to 6,000 per year on standards). Of the 50, about 10 per year were not entertained on various grounds. Over the whole period 40 were upheld (in whole or in part) and 85 were rejected. Ms Judith Barnes told us that customer satisfaction research in 1999 revealed that complainants liked the idea of face-to-face hearings with the broadcasters but they would have liked more assistance with the procedures.[32]

31. In 2000-2002 privacy complaints formed less than 1% of all complaints to the BBC's PCU with none going on appeal to the GPCC. It was unclear whether this figure included those privacy complaints accepted by BBC Information. The BBC recognised that people with personal grievances have often preferred to go to the BSC and this may be because the Commission was seen as more independent—an external judge. Conversely, complainants about standards seemed to want to address their concerns directly to the broadcaster responsible.[33]

32. With regard to ITV, Channel 4 and Channel Five in the last ten years, the regulators have entertained 178 complaints on privacy grounds about programmes on all three channels; and of these 52 have been upheld in whole and 43 have been upheld in part. In other words, on three channels, each broadcasting all day (ITV, with regional variations, broadcasting up to 30 hours a day), the average number of privacy complaints has been fewer than 18 each year, of which slightly over half were upheld in whole or in part.[34]

33. There has been a statutory framework governing the ways in which TV programmes have been made over the last ten years. Broadcasters seem to have been given a reasonably clear understanding of their responsibilities, and the regulators have recognised the need both to protect freedom of expression and safeguard the privacy of individuals. The evidence suggested that there are few occasions when broadcasters have seriously invaded the privacy of individuals without some justification. The current regulations, and the manner in which they are applied, seem to have worked within the boundaries of their own aspirations. However, one cannot ignore the judgment of the ECHR in Peck which (applying to circumstances prior to the introduction of the Human Rights Act 1998) found arrangements in the UK to be deficient—one point noted was that the media regulators had no powers of prior restraint nor any means of awarding compensation.[35]


34. The subject of doorstepping, both by individual presenters and camera crews and by the so-called "media scrum", was an issue that concerned us greatly, applying equally to TV and print journalists. This was emphasised by the late submission of evidence from one witness which indicated that not all intrusive media behaviour ceased 10 or 20 years ago and, as far as one can tell, not all journalists desist when requested. The events described took place in 2001.[36] The broadcasters and the press tended to blame each other for this problem, with both sides claiming to withdraw as soon as requested.[37] We make a recommendation below for some collaboration between Ofcom and the PCC to sort this problem out.

35. With regard to targeted doorstepping of individuals we heard from the broadcasters that the reason for this was often to offer the last chance to the subject of an investigative programme to give his or her side of the story.[38] We found this to be rather disingenuous, especially when the broadcaster said that these attempts sometimes took place after exchanges where interviews had been ruled out, sometimes in writing. We set out our recommendations on broadcasting below.

36. Ofcom must seize the opportunity presented by its new structure to undertake a thorough review, including wide consultation, of how complaints against the broadcasters should be tackled and on the substance of a new code upon which the system will rest. In the meantime, and under the new arrangements, we recommend the continuation of hearings for complex cases (but we see no good reason why the complainant cannot make a full record of the proceedings).

37. We were not at all convinced that door-stepping, by a film crew, of people who have refused, sometimes in writing, to be interviewed is really done to give the subjects of a programme a final opportunity to put their side of the story. The motivation is surely less judicial and more about entertaining footage. Such intrusion, and broadcasting the result, should only be undertaken in important cases of significant public interest.

38. The BBC should respond to the preference of individuals for their privacy complaints to be dealt with by an external body (previously the Broadcasting Standards Commission) and should either increase the demonstrable independence of its own system or refer complaints to Ofcom if the initial response from the programme-makers does not resolve the situation. The BBC should participate fully in the Ofcom review that we recommend above.

39. Ofcom and all the broadcasters should engage with the PCC and the press industry to develop ways of tackling the media scrums that still seem to gather at the scent of a story. Described by Lord Wakeham as "a form of collective harassment" this is a matter that must be capable of being sorted out—especially when it is the victims of violent events, or their families, that are involved.

40. Of necessity we reserve our judgement on the precise arrangements to be established by Ofcom. This is a matter to which we may well return.

26   Ev 304 Vol II Back

27   Q 697 Back

28   Ev 304ff Vol II Back

29   Ev 306 Vol II Back

30   Q 688 Back

31   Q 139 Back

32   Q 707 Back

33   Q 140 Back

34   Ev 91 Vol III Back

35   Ev 93 Vol III Back

36   Ev 202 Vol III Back

37   QQ 457, 927, 929 and 930 Back

38   Q 928 (Mr Battle) Back

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Prepared 16 June 2003