NCTJ Broadcast Regulation

1. NCTJ Broadcast Regulation November 2018

2. This week • Remaining sections of Ofcom code. • Sections 5 and 6 – news etc. • Sections 7 and 8 – fairness and privacy. • Hopefully time for questions if needed.

3. Ofcom Broadcasting Code rules Things to think about in relation to a given section/rule: • Scope of application (some sections/rules only apply to certain categories of broadcast). • Section ‘principles’ (the overall aim of each section). • Content of rules (what does the rule prohibit broadcasters from doing?). • Exceptions (not many of the OBC rules are absolute).

4. Section 5 – Due Impartiality and Accuracy Principle: ‘To ensure that news, in whatever form, is reported with due accuracy and presented with due impartiality.’ • All ‘news’ – rules 5.1 to 5.3. • PLUS the ‘special impartiality requirements’ for some news: • News on ‘matters of political or industrial controversy’ or ‘current public policy’ – rules 5.4 to 5.10 and 5.13. • News on ‘matters of major … controversy’ or ‘major matters relating to current public policy’ – rules 5.11 and 5.12.

5. Section 5 – due impartiality • All news ‘must be reported with due impartiality’ (5.1). • Important – due impartiality =/= equal time or weight for each view or argument. • Rule 5.8: If presenters/reporters have personal interests that might affect impartiality, they must be made clear to audience.

6. Section 5 – due accuracy • All news must be reported with ‘due accuracy’ (5.1). • Again, due accuracy means adequate/appropriate to the subject and nature of the programme. • Rule 5.2 – ‘significant mistakes in news should normally be acknowledged and corrected on air quickly’. Corrections of mistakes in past programmes should be ‘appropriately scheduled’.

7. Section 5 – special impartiality requirements • Apply to news on ‘matters of political or industrial controversy’ (ie ‘issues on which politicians, industry and/or the media are in debate’) or ‘current public policy’. • Rule 5.5: ‘Due impartiality’ on these subjects required ‘within a programme or over a series of programmes’ on the same subject that are ‘editorially linked’ (series should be made clear to audience: 5.6). • Rule 5.13: Views of particular people/groups must not be given ‘undue prominence’ in all programmes overall.

8. Section 5 – special impartiality requirements • Rule 5.4: Opinions and views of the broadcaster must be excluded. • Rule 5.9: News presenters and reporters in news programmes maynot express their own opinions. • 5.9 again: Other presenters etc may express their own opinions, if: • Alternative views are ‘adequately represented’; • Regular appearances aren’t used to promote views ‘in a way that compromises the requirement for due impartiality’.

9. Section 5 – special impartiality requirements • Rule 5.3 – politicians should not be used to report news without exceptional editorial justification. • Rule 5.7: ‘Views and facts must not be misrepresented.’ • 5.7 again: Views must be given ‘due weight over appropriate timeframes.’

10. Section 5 – matters of major controversy • Generally means matters ‘which are of national, and often international importance’. • Rule 5.11: Due impartiality must be preserved on these subjects ‘in each programme or in clearly linked and timely programmes’. • Rule 5.12: An ‘appropriately wide range of significant views must be included and given due weight’.

11. Section 6 – Elections and Referendums • IMPORTANT – Rule 6.1: all of Section 5 rules apply to coverage of elections/referendums (especially 5.11-5.12). • Section 6 only applies during the ‘election period’ as defined in the Code. • For general elections, runs from dissolution of Parliament to the close of the poll (ie the end of voting).

12. Section 6 – during election period • ‘Due weight’ must be given to the coverage of parties and independent candidates in election, taking into account evidence of past/current support (6.2); and to coverage of designated organisations in referendum (6.3). • Broadcasters ‘must also consider giving appropriate coverage’ to parties (elections, 6.2) or ‘permitted participants’ (referendums, 6.3) with ‘significant views and perspectives’.

13. Section 6 – during election period • Rule 6.6: Candidates for election and representatives of referendum campaigns must not act as presenters or interviewers of programmes during election period… • …except appearances in non-political programmes which were arranged before the election period (rule 6.7).

14. Section 6 – constituency coverage • Rule 6.8: due impartiality ‘must be strictly maintained’ in constituency reports or discussions. • Rule 6.9: if a candidate takes part in an item about their constituency, all other candidates must be given the chance to take part. • …and candidates on other programmes must not be allowed to make constituency points when no other candidates have a similar opportunity (6.11). • Rule 6.10: any constituency report or discussion must include a list of candidates.

15. Section 6 – on voting day • Rule 6.4: ‘Discussion and analysis of election and referendum issues’ must stop when polling stations open. • Rule 6.5: Results of opinion polls must not be reported on polling day until polling stations close.

16. Section 7 and 8 – Fairness and Privacy • REMEMBER – sections 7 and 8 are the only sections of the Code aimed at protecting participants in/subjects of programmes, rather than at protecting the audience. • Another difference – each section contains only one rule (7.1 and 8.1). • The rest of each section is made up of ‘practices to be followed’ – failing to comply with these practices will only be a breach of the Code if it results in a breach of rule 7.1/8.1.

17. Section 7 – Fairness • Rule 7.1: ‘Broadcasters must avoid unjust or unfair treatment of individuals or organisations in programmes.’ • Does not apply to presenters etc – only ‘when dealing with individuals or organisations participating in or otherwise directly affected by programmes’. • Practice 7.2: broadcasters ‘should normally be fair in their dealings with potential contributors’ unless exceptional justification not to be.

18. Section 7 – informed consent • Practice 7.3: Contributors to programmes (unless subject is trivial or participation is minor) should be told: • Nature/subject of programme and purpose of their contribution; • When/where programme expected to be broadcast; • Format of contribution (eg live/edited/discussion/interview); • Areas of questioning and other likely contributions; • Any significant changes to the programme as it develops; • Whether, if given opportunity to preview programme, they will be able to request any changes. • Exceptions may be justified in the public interest.

19. Section 7 - contributors • Practice 7.6: Contributions to edited programmes should be ‘represented fairly’. • Practice 7.7: Guarantees given to contributors should normally be honoured. • Practice 7.8: Material should not be re-used in a way that creates unfairness (also applies to privacy infringements: 8.10).

20. Section 7 – kids as contributors • Practice 7.4: For U16 contributors, consent should be obtained from parent or guardian. • 7.4 again: U16s ‘should not be asked for views on matters likely to be beyond their capacity to answer properly’ without parental consent. • Practice 7.5: Above also applies to adults who are not in a position to give consent.

21. Section 7 – presentation of facts • Practice 7.9: Before broadcasting a programme, ensure that ‘material facts have not been presented, disregarded or omitted in a way that is unfair’. • 7.9 again: offer ‘anyone whose omission could be unfair’ an opportunity to contribute. • 7.10 applies to dramas etc – also shouldn’t portray facts unfairly.

22. Section 7 – allegations • Practice 7.11: if alleging ‘wrongdoing or incompetence or … other significant allegations’, should give the person/organization concerned ‘an appropriate and timely opportunity to respond’. • Practice 7.12: if person says ‘no comment’ or refuses to appear, broadcast should make this clear and give their explanation. • Practice 7.13: if representing views of someone not participating in the programme, must be done fairly.

23. Section 8 – Privacy • Rule 8.1: ‘Any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted.’ • Warranted = most important word. Any potential breach of section 8 can be avoided if ‘warranted’. • Also look at ‘legitimate expectation of privacy’.

24. Section 8 – meaning of ‘warranted’ • Based on ‘the particular circumstances of the case’. • Most likely reason is that the infringement is ‘in the public interest’, which ‘outweighs the right to privacy.’ • Examples of ‘public interest’: • Revealing/detecting crime; • Protecting public health/safety; • Exposing misleading claims; • Disclosing incompetence that affects the public.

25. Section 8 – consent • Infringements of privacy in the making (8.5) or broadcast (8.6) of a programme should be with consent. • Practice 8.8: When filming at an organization, should have its permission. • Don’t need consent from people incidentally included. • BUT should normally have separate consent from individuals in sensitive situations (eg in hospitals, schools, police stations, etc).

26. Section 8 – obtaining information • Practice 8.9: Means of gathering information ‘must be proportionate in all the circumstances’. • Practice 8.4: Information recorded in/broadcast from a public place may still be private enough that consent should normally be obtained. • Practice 8.7: If a person is being filmed in a way that infringes their privacy, and they ask for recording/broadcast to be stopped, the broadcaster should do so unless warranted.

27. Section 8 – suffering and distress • Practice 8.3: people caught up in newsworthy events still have a right to privacy, so that infringements must be warranted. • Practice 8.16: should not ‘take or broadcast’ recordings of ‘people caught up in emergencies, victims of accidents or those suffering a personal tragedy, even in a public place’ if doing so infringes their privacy – unless warranted or with consent. • BUT – foreword to section 8 recognises that reporting on major breaking events can involve difficult decisions. Less leeway will be given to decisions made when editing a programme before broadcast.

28. Section 8 – suffering and distress • Practice 8.17: People in distress should not be pressured to take part in a programme. • Practice 8.18: Identity of person who has died unexpectedly should not be revealed until family have been informed. • Practice 8.19: When making or broadcasting programmes about past events involving trauma to individuals, broadcasters should try to reduce the distress caused to victims/relatives. • In particular, victims/families should be informed of plans for the programme.

29. Questions