Statement on the fairness and privacy complaints handling guidelines consultation

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.