http://www.ofcom.org.uk/consult/condocs/fandp/statement/
1.1 Ofcom’s statutory duties include the application, in the case of all television and radio services, of standards which provide adequate protection to members of the public and all other persons from unfair treatment in programmes and from unwarrantable infringement of privacy in both the making and broadcast of programmes.
1.2 Specifically, the Broadcasting Act 1996, as amended (“the 1996 Act”), gives Ofcom a duty to consider and adjudicate on complaints raised in relation to unjust or unfair treatment in programmes and in relation to the unwarranted infringement of privacy in, or in connection with the obtaining of material included in such programmes; and the Communications Act 2003 (“the Act”) requires Ofcom to establish procedures for the consideration and adjudication of such complaints.
1.3 Subject to certain matters expressly required by statute, Ofcom must determine an appropriate structure and process for handling complaints. Ofcom considers it important that this includes ensuring that parties to a complaint are clear about what they will be expected to provide at each stage of the process and by when they will be expected to provide it.
1.4 Ofcom procedures have been determined in accordance with the regulatory principles to which it must have regard under the Act. According to these principles, Ofcom’s regulatory activities should be transparent, accountable, proportionate and consistent and targeted only at cases in which action is needed. Consequently, Ofcom has sought under the procedures to establish a process by which it considers and adjudicates on complaints in a manner which is evidence-based and transparent in both deliberation and outcome. In the interests of the parties, the process has been designed to be quick and effective as possible with procedures that are easy to use and understand.
1.5 The procedures take account of the requirements of the Television Without Frontiers Directive (89/552/EEC, as amended by EC Directive 97/36/EC) and the guidelines have also been drafted in the light of the Human Rights Act 1998 and the European Convention on Human Rights to ensure the procedures are in keeping with the rules of natural justice and applied in a way that best guarantees an appropriate level of freedom of expression.
The Statement
1.6 This statement summarises the substantive responses to Ofcom’s consultation on the “Proposed Guidelines for handling Fairness and Privacy complaints” and gives Ofcom’s responses to the points that were raised and explains any changes that have been made. The final guidelines are titled “Outline Procedures for handling Fairness and Privacy complaints” and are referred to in this document as “the Outline Procedures”.
1.7 Respondents have in some cases commented on every proposed paragraph of the guidelines and many have suggested changes to the wording. In some cases respondents had opposing views on what should be done reflecting the different perspectives involved.
1.8 This statement could not cover every point that has been raised by respondents to the consultation; instead it summarises the most significant issues and Ofcom’s response to them.
1.9 However, it should be made clear that, in considering the final wording of the Outline Procedures, Ofcom has considered each and every response received in its full form.
1.10 Changes have been made to the Outline Procedures in the light of the responses and also in order to ensure clarity and, where relevant, consistency, as well as to ensure appropriate statutory requirements are met.
1.11 Below is a summary of the substantial changes.
1.12 Appropriate Resolution. In keeping with Ofcom’s duty to intervene only where necessary, the consultation proposed a process of “Appropriate Resolution”. This approach could see some complaints being resolved before a formal Ofcom investigation takes place. There are occasions when complainants may prefer quick and appropriate action taken by the broadcaster (e.g. a letter of apology, a promise to edit future programmes, an on-air correction) instead of Ofcom conducting an investigation.
1.13 The procedures allow for a complainant, who would be prepared to consider an offer of “Appropriate Resolution”, to indicate this (on the complaint form). Ofcom would then allow the broadcaster, if the broadcaster felt it was appropriate, to propose an acceptable remedy (within a defined timescale). However, Ofcom recognises that there will be occasions when a broadcaster will not consider a proposal for a resolution to be appropriate. For example, the broadcaster may believe that there has not been any unfair treatment or that there was no infringement of privacy or they may consider that the infringement was warranted. After taking account of all respondents’ feedback, we consider that the only practicable way that such a resolution process can work is if both parties agree to the resolution. This ensures that the process’s voluntary nature is preserved.
1.14 Reviews of Fairness Committee Decisions. At present, when the Fairness Committee reaches its decision on a complaint between two parties that decision is final. Some respondents requested that the Fairness Committee decisions be open to appeal (as are those decision made by the Executive). This was an issue that was clearly important to a number of respondents and one that Ofcom considered extremely seriously.
1.15 However, to create another body, as was suggested by some respondents, that could review Fairness Committee decisions would not be consistent with Ofcom’s constitution and governance since the Fairness Committee is a committee of Ofcom, with delegated powers from the Ofcom Board. As such it is the most senior decision-making body in terms of adjudicating on fairness and privacy complaints.
1.16 Ofcom’s predecessor, the Broadcasting Standards Commission, obtained legal advice that stated that it could be unlawful for any final adjudication made by an authority such as Ofcom to be internally reviewed since, having finally decided the submitted issues, Ofcom’s authority over those questions is ended at that point (it is functus officio at that point). Ofcom’s statutory requirement with respect to fairness and privacy complaints is to adjudicate (it is a quasi-judicial process in which Ofcom acts as a decision maker between two opposing parties). In these circumstances, it is generally established that there is no right of review of a final adjudication unless expressly provided by statute (other than by way of judicial review by the courts).
1.17 It should also be noted that an internal review within Ofcom is not a process that is required by the Act. It was established, at the time the Act was passed, that since stakeholders could challenge Ofcom’s decisions by means of Judicial Review this was sufficient, in terms of human rights compliance i.e. the right to a fair hearing. Parliament did not therefore legislate for an internal review process to be part of Ofcom’s procedures.
1.18 Nevertheless, we recognise that the regulator’s decisions in these areas can be crucially important in terms of the courts’ interpretation of these matters, broadcasting policy and freedom of expression. As such, we acknowledge that it is essential that Ofcom’s judgments are as sound as possible and made after thorough scrutiny. In addressing these issues we have noted the apparent inconsistency whereby the simpler cases are reviewable but the more complex cases are not.
1.19 Taking this into account, and given the legal parameters we must work within, we have revised our new Outline Procedures, to incorporate a two stage process for Fairness Committee decisions, involving a provisional decision and, if necessary, a re-consideration. A two stage process will only exist for those cases which go directly to the Fairness Committee and not those cases which the Fairness Committee are considering on review.
1.20 Therefore, the Outline Procedures now state that the Fairness Committee in the first instance will reach a provisional decision which may be reconsidered following final representations from the parties (this does not apply to cases referred to the Fairness Committee for review, since these decisions are final). If either party makes material representations (see final procedures for those issues which are considered to be material), which may change part or all of a decision, then the Fairness Committee will re-consider the relevant part of its provisional decision. The other party would always be offered an opportunity to comment on any final representations before the Fairness Committee makes its final adjudication. It should be noted that this extra stage will mean that the Fairness Committee adjudications will take longer to finalise in some cases.
1.21 Deadlines. The responses argued that the current deadlines are unrealistic and almost impossible to fulfil given the amount of work and research that is sometimes required (such as obtaining and viewing rushes; interviewing producers who have since gone on to work on new projects; etc). It has frequently been the case that broadcasters have not been able to respond within the current time limits.
1.22 Ofcom considers that it is pointless having deadlines which parties find almost impossible to adhere to. We consider it would be more appropriate to have realistic deadlines and aim to ensure that all parties comply with them. This would also help stop parties from having unrealistic expectations of our procedures. It is therefore proposed that first round statements should be lodged with Ofcom within 20 working days (as opposed to 10) and second round statements within 10 working days (as opposed to 5).
1.23 Authorisation. Authorisation is an essential element of the complaint process where someone is complaining on behalf of the complainant. We are revising the complaint form to ensure that those who complain on behalf of “the person affected” obtain the necessary authorisation. Complaints cannot be entertained without the appropriate authority.
1.24 Below is a summary of other less significant, but important, changes to the procedures from the current guidelines:
The procedures now include definitions in grey boxes (e.g. “affected person”).
The number of days in which a complaint should be lodged with Ofcom has been reduced (since using the current deadlines set by statute for recording retention as the deadline for lodging a complaint may not guarantee that relevant recordings are available).
The procedures now require that, when a complainant contacts the broadcaster in the first instance, broadcasters should keep recordings for longer.
The complaint form will now be forwarded to broadcaster immediately – therefore putting the onus on broadcaster to retain relevant information and complainant to frame his/her complaint correctly.
The procedures formalise the current practice of providing a copy of the Entertainment Decision to both parties.
Greater guidance on Ofcom’s confidentiality requirement and compliance with our published procedures is included.
The procedures now give emphasis on Ofcom giving adequate reasoning and explanations to our actions.
Greater indication of when we might require a summary of an adjudication to be broadcast is included in the procedures.
Rabu, 27 Juni 2007
Reforming Complaints Management System at National Human Rights Commission
By Bipin Adhikari
http://www.nepalnews.com.np/contents/englishweekly/spotlight/2003/jul/jul25/national9.htm
The complaint handling function of a human rights commission is arguably its most important and valuable activity. A complaint process that is not understandable, accessible, speedy, effective or fair risks not only seriously damaging a commission's credibility, but also impedes its ability to bring about positive changes to the prevailing human rights situation.
The National Human Rights Commission, established in Nepal three years before, as per the enactment of the Human Rights Commission Act of 1997, is an independent and autonomous body established for the effective implementation and protection and promotion of human rights. The Commission receives complaints from the people on the violation of their human rights. It is fully empowered to undertake necessary its inquiries and investigations on the basis of any kind of information it has received about negligence from any concerned individual, institution or agency regarding the preventing of human rights violations. The Commission itself can undertake such investigations, or it can assign the responsibility to an individual or an agency. The Commission, after receiving the report of the investigation, decides upon the case.
While taking action upon the complaints, requests and reports within its jurisdiction, Article 11 (1) of the Act has given the Commission powers similar to those of a law court to act under the prevailing laws. The Commission, among other things, may summon any person to appear before the Commission, listen to witnesses, order the presentation of documents, ask from any government or public office or court for any document for its copy, receive evidence, carry out or cause to be carried out on the spot observations, ask for the presentation of evidence and carry out or cause to be carried out searches when necessary.
The Monitoring and Protection Division of the Commission has registered a total of 1229 complaints since the establishment of the Commission till May 2003. Of the total complaints, 1061 complaints deal with the violations of human rights by the government, while 172 complaints are registered as complaints of human rights violations by the Maoists. The complaints registered against the Maoists include one complaint dealing with the injuries inflicted by the Maoists on 64 women, a complaint on the abduction and disappearances of 47 people in Rolpa, a complaint on the killings of 17 women, and a complaint on the abduction of 16 women by the Maoists.
The details of the action on the complaints are as follows:
Details of Complaints 2057 B.S. (2000 April- 2001 March)2058 B.S
(2001 April- 2002 March) 2059 B.S. (2002 April- 2003 March 2060 Baisakh (April/May 2003) Total Remarks Total number of Complaints 440 211 550 28 1229 Complaints against the Government 331 197 506 24 1061 Complaints against the Maoists 109 15 44 4 172 Complaints Cancelled 73 43 3 0 119 Complaints Pending Decision/ Suspended 36 39 4 0 79 Decision on Complaints 11 5 4 0 20
The cancelled and suspended complaints above include complaints on issues beyond the authority of the Commission; complaints lacking in additional evidence and therefore no further investigation possible, and complaints in which legal action had been already taken.
A study pursued about one and half year ago on the complaint management system showed that there is a scope for improvement on the model that NHRC Nepal has adopted for itself. The above figures on the settlements of human rights complaints also show that the NHRC machinery needs to be activated, and part of the solution to the existing problems of delay and arrears is a well-developed complaint management system which is not only understandable and accessible but also speedy, effective and fair. The existing environment of Maoist conflict further indicates towards the urgency of an effective complaint settlement mechanism.
There is no one accepted way of handling complaints. Similar commissions around the world have adopted differing approaches based on the nature of the cases it deals with, the traditions (legal and otherwise) that form part of the backdrop to its existence, the organizational structure it adopts, the capacities of the personnel and the emphasis it places on the various, sometimes conflicting objectives the complaint process is meant to respond to.
It is also true that most commissions have adopted a process that facilitates and demystifies complaint filing and investigation, tries to eliminate unnecessary bureaucracy, cost and duplication of efforts, seeks to devolve administrative decision-making to the lowest possible level, attempts to accentuate quick and amicable resolution, searches for comprehensive remedies that aim both at restoration and prevention, sets the standard of proof at an appropriate level given the powers it possess, affords both sides to a complaint the opportunity to present its case and tries to minimize the possibility of administering abuse or error.
In this background, attempts are being made by the Commission to study its challenges and enhance the effectiveness and efficiency of the existing system by adopting a systematic and uniform approach to complaints handling.
[Adhikari is a lawyer. Comments on the article may be sent to human_rights_Nepal@yahoo.co.uk"
http://www.nepalnews.com.np/contents/englishweekly/spotlight/2003/jul/jul25/national9.htm
The complaint handling function of a human rights commission is arguably its most important and valuable activity. A complaint process that is not understandable, accessible, speedy, effective or fair risks not only seriously damaging a commission's credibility, but also impedes its ability to bring about positive changes to the prevailing human rights situation.
The National Human Rights Commission, established in Nepal three years before, as per the enactment of the Human Rights Commission Act of 1997, is an independent and autonomous body established for the effective implementation and protection and promotion of human rights. The Commission receives complaints from the people on the violation of their human rights. It is fully empowered to undertake necessary its inquiries and investigations on the basis of any kind of information it has received about negligence from any concerned individual, institution or agency regarding the preventing of human rights violations. The Commission itself can undertake such investigations, or it can assign the responsibility to an individual or an agency. The Commission, after receiving the report of the investigation, decides upon the case.
While taking action upon the complaints, requests and reports within its jurisdiction, Article 11 (1) of the Act has given the Commission powers similar to those of a law court to act under the prevailing laws. The Commission, among other things, may summon any person to appear before the Commission, listen to witnesses, order the presentation of documents, ask from any government or public office or court for any document for its copy, receive evidence, carry out or cause to be carried out on the spot observations, ask for the presentation of evidence and carry out or cause to be carried out searches when necessary.
The Monitoring and Protection Division of the Commission has registered a total of 1229 complaints since the establishment of the Commission till May 2003. Of the total complaints, 1061 complaints deal with the violations of human rights by the government, while 172 complaints are registered as complaints of human rights violations by the Maoists. The complaints registered against the Maoists include one complaint dealing with the injuries inflicted by the Maoists on 64 women, a complaint on the abduction and disappearances of 47 people in Rolpa, a complaint on the killings of 17 women, and a complaint on the abduction of 16 women by the Maoists.
The details of the action on the complaints are as follows:
Details of Complaints 2057 B.S. (2000 April- 2001 March)2058 B.S
(2001 April- 2002 March) 2059 B.S. (2002 April- 2003 March 2060 Baisakh (April/May 2003) Total Remarks Total number of Complaints 440 211 550 28 1229 Complaints against the Government 331 197 506 24 1061 Complaints against the Maoists 109 15 44 4 172 Complaints Cancelled 73 43 3 0 119 Complaints Pending Decision/ Suspended 36 39 4 0 79 Decision on Complaints 11 5 4 0 20
The cancelled and suspended complaints above include complaints on issues beyond the authority of the Commission; complaints lacking in additional evidence and therefore no further investigation possible, and complaints in which legal action had been already taken.
A study pursued about one and half year ago on the complaint management system showed that there is a scope for improvement on the model that NHRC Nepal has adopted for itself. The above figures on the settlements of human rights complaints also show that the NHRC machinery needs to be activated, and part of the solution to the existing problems of delay and arrears is a well-developed complaint management system which is not only understandable and accessible but also speedy, effective and fair. The existing environment of Maoist conflict further indicates towards the urgency of an effective complaint settlement mechanism.
There is no one accepted way of handling complaints. Similar commissions around the world have adopted differing approaches based on the nature of the cases it deals with, the traditions (legal and otherwise) that form part of the backdrop to its existence, the organizational structure it adopts, the capacities of the personnel and the emphasis it places on the various, sometimes conflicting objectives the complaint process is meant to respond to.
It is also true that most commissions have adopted a process that facilitates and demystifies complaint filing and investigation, tries to eliminate unnecessary bureaucracy, cost and duplication of efforts, seeks to devolve administrative decision-making to the lowest possible level, attempts to accentuate quick and amicable resolution, searches for comprehensive remedies that aim both at restoration and prevention, sets the standard of proof at an appropriate level given the powers it possess, affords both sides to a complaint the opportunity to present its case and tries to minimize the possibility of administering abuse or error.
In this background, attempts are being made by the Commission to study its challenges and enhance the effectiveness and efficiency of the existing system by adopting a systematic and uniform approach to complaints handling.
[Adhikari is a lawyer. Comments on the article may be sent to human_rights_Nepal@yahoo.co.uk"
Human Rights Complaints: When to Go It Alone, When to Call Your Attorney
03/ 02/ 2006
by Charles R. McConnell
Few managers who have ever been involved in a human rights complaint are happy to see one arrive. An external agency determines the timing of a complaint and the time frame for the company’s initial response. Thus, a human rights complaint is always an intrusion on management’s routine, so there’s no “good” time to deal with a complaint.
A human rights complaint is an allegation of discrimination. An ex-employee might claim that his or her termination was discriminatory; a current employee might allege discrimination in taking disciplinary action or applying employment terms and conditions; a job applicant might cite discrimination as reason for the company’s failure to offer employment. Filing a complaint costs an individual only the time and effort involved in visiting the nearest office of the State Division of Human Rights (the name might vary from state to state). Some aggrieved individuals may first go to the Equal Employment Opportunity Commission (EEOC), but the EEOC will usually refer the complaint to the state agency and take it back only if it remains unresolved for a long period or promises to develop into a lawsuit.
Managers who've had minimal experience with human rights complaints are likely to exhibit two common reactions: The desire to fight every complaint that arrives and the urge to immediately call an attorney. But neither reaction is appropriate. Some human rights complaints should be conceded or at least subjected to negotiation and can be resolved without attorney involvement.
The substance of a complaint ordinarily consists of several numbered allegations written up by a agency representative following an interview with the aggrieved individual. Complaining individuals receive agency assistance in articulating their grievances. It’s extremely easy for individuals to initiate human rights complaints––it only takes showing up at the agency and letting agency personnel do most of the work.
It’s important for someone in the organization, either a human resource practitioner or another manager, to manage the response to a complaint and keep it moving as necessary. You will be given a certain time frame (30 days is not uncommon) in which to supply detailed written responses to the allegations in the complaint. In addition to written answers or explanations, some responses will require the submission of other documentation. You should make every effort to meet specified deadlines; if there are to be delays (and often there will be), let them be the fault of the external agency.
The initial step following receipt of a complaint should always be a prompt, thorough and honest internal investigation to gather information and assess the complaint’s substance. The investigation, which inevitably includes interviews of interested or involved parties in the organization, is conducted for two important purposes: To obtain information for responding to allegations; and to determine whether an effort should be made to resolve the complaint by working directly with the agency without involving attorneys.
When a complaint has sufficient substance, the best course of action is to negotiate a settlement. In other words, if the investigation indicates that the company is in the wrong, it makes sense to negotiate some agreeable arrangement for resolution. For example, a registered nurse was rejected for employment based on a recruiter’s judgment that her age (on the high side of 50) and a voluntarily admitted physical limitation left her unable to do the job for which she applied. The recruiter’s position? “The poor thing (the job applicant) just wouldn't be able to stand the pace on that unit.” The nurse filed a human rights complaint alleging discrimination based on age and disability. The negotiated settlement included an independent medical examination to determine whether the individual was able to meet the requirements of the job. Based on the medical examination, the nurse was hired. Had this complaint simply been opposed from the start, the employer would most likely have lost and would have wasted considerable time, effort and perhaps legal fees defending the largely indefensible.
When a human rights complaint arrives, don't immediately call a lawyer and don't instantly decide to fight it without first investigating thoroughly. When it’s likely that your company is at fault, concede or negotiate. Call the attorney only when all good-faith efforts fails to bring an acceptable resolution; or when the complainant or human rights agency resorts to legal action
by Charles R. McConnell
Few managers who have ever been involved in a human rights complaint are happy to see one arrive. An external agency determines the timing of a complaint and the time frame for the company’s initial response. Thus, a human rights complaint is always an intrusion on management’s routine, so there’s no “good” time to deal with a complaint.
A human rights complaint is an allegation of discrimination. An ex-employee might claim that his or her termination was discriminatory; a current employee might allege discrimination in taking disciplinary action or applying employment terms and conditions; a job applicant might cite discrimination as reason for the company’s failure to offer employment. Filing a complaint costs an individual only the time and effort involved in visiting the nearest office of the State Division of Human Rights (the name might vary from state to state). Some aggrieved individuals may first go to the Equal Employment Opportunity Commission (EEOC), but the EEOC will usually refer the complaint to the state agency and take it back only if it remains unresolved for a long period or promises to develop into a lawsuit.
Managers who've had minimal experience with human rights complaints are likely to exhibit two common reactions: The desire to fight every complaint that arrives and the urge to immediately call an attorney. But neither reaction is appropriate. Some human rights complaints should be conceded or at least subjected to negotiation and can be resolved without attorney involvement.
The substance of a complaint ordinarily consists of several numbered allegations written up by a agency representative following an interview with the aggrieved individual. Complaining individuals receive agency assistance in articulating their grievances. It’s extremely easy for individuals to initiate human rights complaints––it only takes showing up at the agency and letting agency personnel do most of the work.
It’s important for someone in the organization, either a human resource practitioner or another manager, to manage the response to a complaint and keep it moving as necessary. You will be given a certain time frame (30 days is not uncommon) in which to supply detailed written responses to the allegations in the complaint. In addition to written answers or explanations, some responses will require the submission of other documentation. You should make every effort to meet specified deadlines; if there are to be delays (and often there will be), let them be the fault of the external agency.
The initial step following receipt of a complaint should always be a prompt, thorough and honest internal investigation to gather information and assess the complaint’s substance. The investigation, which inevitably includes interviews of interested or involved parties in the organization, is conducted for two important purposes: To obtain information for responding to allegations; and to determine whether an effort should be made to resolve the complaint by working directly with the agency without involving attorneys.
When a complaint has sufficient substance, the best course of action is to negotiate a settlement. In other words, if the investigation indicates that the company is in the wrong, it makes sense to negotiate some agreeable arrangement for resolution. For example, a registered nurse was rejected for employment based on a recruiter’s judgment that her age (on the high side of 50) and a voluntarily admitted physical limitation left her unable to do the job for which she applied. The recruiter’s position? “The poor thing (the job applicant) just wouldn't be able to stand the pace on that unit.” The nurse filed a human rights complaint alleging discrimination based on age and disability. The negotiated settlement included an independent medical examination to determine whether the individual was able to meet the requirements of the job. Based on the medical examination, the nurse was hired. Had this complaint simply been opposed from the start, the employer would most likely have lost and would have wasted considerable time, effort and perhaps legal fees defending the largely indefensible.
When a human rights complaint arrives, don't immediately call a lawyer and don't instantly decide to fight it without first investigating thoroughly. When it’s likely that your company is at fault, concede or negotiate. Call the attorney only when all good-faith efforts fails to bring an acceptable resolution; or when the complainant or human rights agency resorts to legal action
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