OFCOM AND PLURALITY
Rupert Murdoch’s abandoned £8bn bid to obtain full ownership of BSkyB struck to the core of The Office of Communications’ (Ofcom) business whilst shining a pre-Leveson light on the complex relationships between politicians and media proprietors. Ofcom, whose goal is one of an open and competitive market, are statutorily obliged to ensure media plurality by monitoring media ownership. Ofcom, whilst able to mete out severe punishment, can be seen as a light touch regulator which facilitates the burgeoning, competitive broadcasting and communications market.
In November 2010, Vince Cable referred the takeover bid to Ofcom who he tasked with considering issues relating to media plurality. The then Business Secretary was stripped of the handling of such media competition issues in light of The Telegraph’s revelations of Cable’s anti-Murdoch sentiment. Such duties were now the preserve of Jeremy Hunt, the Secretary of State for Culture, Media and Sport. However, the proposed hiving off from News Corporation of Sky News into a separate listed company meant that a discussion on media control and any resultant Competition Commission Inquiry did not transpire.
Widespread political and public expectation of a successful, pre Parliamentary summer recess merger was suddenly and abruptly confounded with Ofcom’s intervention into the proposed takeover in 2011. As the political and public discourse over the phone hacking scandal intensified, the regulatory authority espoused its ‘duty to be satisfied on an ongoing basis that the holder of a broadcasting licence is ‘fit and proper’. Murdoch’s News of the World, viewed as being at the vanguard of hacking endeavors closed in July 2011. News Corporation’s proprietor withdrew his organisation’s offer to spin off Sky News. And thus, the BSkyB bid was withdrawn. Ofcom’s subsequent, and government initiated, scrutiny of BSkyB was to conclude in September 2012 with a public lambasting of News Corporation’s James Murdoch for his inaction over the phone hacking scandal, when chairman of News International. But crucially, Ofcom ruled that BSkyB was ‘fit and proper’ to hold a broadcasting license.
Ofcom is funded by broadcasters’ license fees and government funds. It is legally obliged to consult widely with stakeholders in the formation of media and communications regulation. This open and transparent consultation must be fiscally prudent and time efficient. It checks to see if broadcasters are fulfilling their public service obligations.
Like the Freedom Of Information Act, Ofcom was a child of New Labour. Governmentally independent, it was established by The Communications Act 2003. This statute defined Ofcom’s primary duty as existing to further the interests of citizen-consumers through a regulatory regime which, where appropriate, encourages competition. Like New Labour’s now defunct Financial Services Authority, it is a merged regulator with authority over TV broadcasters (commercial and in areas the BBC), radio and telecommunications.
Ofcom was a legislative reaction to the changing media landscape as demonstrated by the digital era’s proliferation of TV channels and explosion in internet and mobile phone usage. The abundance of TV stations can though lead to a race to the bottom regarding standards, with content produced to appeal to the lowest common dominator. The commercial need for guaranteed advertising revenue has led to the homogenisation of content in the form of Big Brother and The X Factor Series 10.
THE BROADCASTING CODE
Ofcom ensures compliance with the Broadcasting Code, adjudicating on matters when broadcasters have allegedly breached rules. These rules are in sections such as protecting the under 18s, harm and offence, crime, religion, due impartiality and due accuracy and undue prominence of views and opinions, elections and referendums, fairness, privacy, commercial references in TV programmes(although The Advertising Standards Agency regulate TV advertising under contract from Ofcom) and commercial communications in Radio programming.
Ofcom recently found Kerrang Radio to be in breach of rules on the broadcast of offensive language at a time when children could have been listening. http://www.bbc.co.uk/news/entertainment-arts-25183160
A person aggrieved by the content of a broadcasted programme can complain to Ofcom in the first instance. Channel 4’s ‘The Great Global Warming Swindle’ prompted 265 complaints to Ofcom who found in favour of impartiality and fairness breaches http://www.theguardian.com/media/2008/jul/22/channel4.ofcom1
The on-going trial of Michael Adebolajo and Michael Adebowale has led to Ofcom delaying the publication of its decisions emanating from its investigation into the broadcast coverage of Lee Rigby’s murder. The rules in question were:
Rule 1.3: “Children must…be protected by appropriate scheduling from material that is unsuitable for them”.
Rule 2.3: “In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context…Appropriate information should also be broadcast where it would assist in avoiding or minimising offence”.
Ofcom adjudicate on matters relating to the broadcast of sex, violence, swearing and the watershed. Channel 4’s, post watershed but compliant inducing, broadcast of ‘Sri Lanka’s Killing Fields’ was cleared of breaching the broadcasting code; http://www.theguardian.com/media/2011/oct/24/channel-4-sri-lanka-killing-fields
A journalist may wish to call upon the public interest defence when breaching a code. This, like with defamation, could, for example, entail disclosing incompetence that affects the public. Ofcom, like the Press Complaints Commission (PCC), will consider when such a defence is called upon, whether it was possible for the journalist to use a method other than the code breaking one.
Ofcom, unlike the PCC, has sterner sanctions that can significantly affect organisations and careers. These include the ability to:
revoke broadcasting licenses, given by Ofcom for up to 12 years, to commercial broadcasters. The following reports details the loss of Press TV’s license for breaches of broadcasting rules relating to editorial control; http://www.bbc.co.uk/news/entertainment-arts-16652356
impose fines of up to £250000 for the BBC or up to 5% of turnover for other English channels. For another example of breaches of the code, this time focussing on encouraging or inciting the commission of crime see http://www.pressgazette.co.uk/ofcom-fines-islamic-channel-broadcast-acceptable-murder-comments
direct not to repeat programme or air a correction. Sachsgate resulted in a £150000 fine for the BBC and Radio 2 being ordered to broadcast the regulator’s findings which included breaches of Rule 2.1 (generally accepted standards must be applied programmes); Rule 2.3 (offensive material must be justified by the context); and Rule 8.1 (the ’standard’ requiring adequate protection for members of the public from unwarranted infringements of privacy).
BROADCAST v PRINT REGULATION.
Arguably, there exists a need for regulation which codifies moral and ethical behaviour as journalistically related law is specific and limited to areas such as defamation and libel. The regulation of broadcast and print is noticeably different, in part because of the perception that TV and radio are more immediate and thus have more power to provoke, offend or harm audience. The perceived greater emotional impact of moving images and sound compared to printed text and images has resulted in a broadcasting regulatory system built on the bedrock of impartiality. This ideal, although perhaps not reality, can be seen as a counterbalance to the printed press who are free to be partisan, if such content (comment, editorial) is clearly demarcated from news. Broadcasters need to consider the axis of debate and there content needs to be devoid of bias or preconception.
WHY DO CODES MATTER?
Codes of practice are fundamental to the relationship between producer and consumer. As we have seen with the phone hacking scandal, there needs to exist trust. A reader or viewer’s trust in a journalists’ activity when sourcing and producing a story is of paramount importance as it functions to sustain readership or viewership. Codes provide a benchmark for behaviour which, if followed, can reassure the audience and build trust, which is key to the industry’s and individual journalists’ success. As the Leveson Inquiry has revealed there exists a challenge that journalists must face in these recessionary times. It centres on the difficulty of conducting ethical journalism when faced with trying to write business critical scoops of commercial appeal. Technological advances in clandestinely acquiring data can be an opportunity but may also pose a threat to a journalist’s ethics.
MATTERS FOR CONSIDERATION
Codes focus on ethical behaviours that journalists should (arguably) follow and questions they should consider such as; how fat can they go to get a story? Do the ends justify the means? What practices are legitimate? Journalists should consider notions of respect for privacy, although this is typically weighed against freedom of expression. The demand for celebrity stories and gossip explains its continued supply. Obtaining such scoops can involve practice that veers into ethically questionable journalistic activity such as phone hacking or invasion of privacy. JournalistS may attempt to use the public interest defence when embroiled in such activity. This may not always hold as was seen with the Max Mosley case http://www.theguardian.com/uk/2008/jul/24/mosley.privacy
THE EDITORS’ CODE OF PRACTICE
This code is administered by the industry’s self-regulatory Press Complaints Commission of which Lord Leveson offered a withering assessment. The PCC oversees ethical standards in Editors’ Code of Practice. The print industry has been very public in espousing its concerns over any new regulatory system which is the child of the political classes. Their concerns centre on the sanctions of a new politically sponsored Royal Charter which has the power to revoke licenses. The industry argues this would be the death knell of the free press. Countering this argument are those aggrieved by the unethical and illegal journalistic activity such as the phone hacking victims.
Within the UK there apparently exists a vibrant, diverse media, free from state control. Those with the means to publish are able to do so. Whilst finances will facilitate the publication of newspapers or magazines on a larger scale, technological advances have enabled free distribution of content through social media/blogs and YouTube. The printed press, unlike broadcasters can be partisan on issues such as elections unlike broadcasters. Proprietors and advertisers can influence the editorial line taken by newspaper and thus journalists. The owner’s political stance can determine the publication’s agenda and editorial. However, even within such a context, journalists still face moral questions when covering a story, although these can be affected by commercial needs. Whilst the UK is revered for its press freedoms, there are legal and moral restrictions on this freedom such as those relating to libel, privacy and confidentiality.
PCC STRUCTURE AND ROLE
PCC commissioners consist of lay people and serving editors
financed by annual levy on industry
complaints to editor first then if dissatisfied the PCC
handles complaints by people aggrieved by the actions of the press. The PCC ruled that there was not a breach of Clause 3 (Privacy) and Clause 4 (Harassment) of the Editors’ Code of Practice in Vicky Pryce case http://www.pcc.org.uk/news/index.html?article=ODUxNA==
PCC negotiates resolutions to problems, adjudicates on complaints, intervenes before material published
cannot impose fines (c.f. Royal Charter hopes)
SCOPE OF EDITORS’ CODE
The code binds the industry, although it is not legally binding as breaching it is not a crime or tort. The code can be seen as attempting to strike a balance between right to privacy and freedom of expression. The ethical behaviour hopefully emanating from following the code centres on these areas:
Accuracy, opportunity to reply, privacy, harassment, intrusion into grief or shock, children, children in sex cases, hospitals, reporting of crime, clandestine devices and subterfuge (as seen in phone hacking scandal), victims of sexual assault, discrimination, financial journalism, confidential sources, witness payments in criminal trials, payment to criminals.
Whilst the vast majority of complaints to the PCC relate to inaccuracies and opportunity to reply, the following case details a PCC ruling that a local newspaper published excessive detail about a method of suicide http://www.pcc.org.uk/news/index.html?article=ODA4Ng==
It is possible to breach certain parts of code if you have a public interest defence which includes detecting or exposing crime or serious impropriety, protecting public health and safety, preventing the public from being misled by an action or a statement of an individual or organisation
For an allegation of breach of Clause 6 (Children) and the PCC’s consideration of the public interest see http://www.pcc.org.uk/news/index.html?article=ODQ5Mg==
Resulting from previous journalistic endeavour, BBC editorial guidelines for staff and license fee payers in turn, outline moral and ethical behavioural areas whilst offering advice. Whilst Ofcom regulates the BBC in some areas such as allegations of unfair or offensive broadcasts, accuracy and impartiality issues are the regulatory preserve of the self-regulatory BBC trust. Complaints against BBC should go to Editorial Complaints Unit then, if dissatisfied, the BBC Trust. The following case details a partial upholding of a complaints against the lack of overt reference to a guest’s political leanings http://www.iengage.org.uk/news/comment/2766-bbc-complaints-unit-partly-upholds-complaint-over-non-neutral-commentator
http://www.pcc.org.uk/cop/practice.html The Editors’ Code of Practice
http://www.pcc.org.uk/index.html The Press Complaints Commission
http://stakeholders.ofcom.org.uk/broadcasting/broadcast-codes/broadcast-code/ The Broadcasting Code
http://www.bbc.co.uk/editorialguidelines/ BBC Editorial Guidelines
http://www.nuj.org.uk/about/nuj-code/ National Union of Journalists Code of Conduct
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