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.
‘Meaning of “due impartiality”:
“Due” is an important qualification to the concept of impartiality. Impartiality itself means not favouring one side over another. “Due” means adequate or appropriate to the subject and nature of the programme. So “due impartiality” does not mean an equal division of time has to be given to every view, or that every argument and every facet of every argument has to be represented. The approach to due impartiality may vary according to the nature of the subject, the type of programme and channel, the likely expectation of the audience as to content, and the extent to which the content and approach is signalled to the audience. Context, as defined in Section Two: Harm and Offence of the Code, is important.’

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 may not 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’.
Rule 5.4 is referring to the company responsible for broadcasting a programme.
Rule 5.10 requires ‘personal view’ or ‘authored’ programmes to be ‘clearly signaled to the audience at the outset’.

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 ).
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).
Meaning of “election period”:
For a parliamentary general election, this period begins with the dissolution of Parliament. For a parliamentary by-election, this period begins with the issuing of a writ or on such earlier date as is notified in the London Gazette. For the Scottish Parliament elections and National Assembly for Wales elections, the period begins with the dissolution of the Scottish Parliament or the National Assembly for Wales as appropriate or, in the case of a by-election, with the date of the occurrence of a vacancy. For the Northern Ireland Assembly, the London Assembly and for local government elections, it is the last date for publication of notices of the election. For European parliamentary elections, it is the last date for publication of the notice of election, which is 25 days before the election. In all cases the period ends with the close of the poll.
Meaning of ‘referendum period’ is normally dictated by the legislation governing the referendum in question.

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’.
‘Permitted participants’ are groups that are registered with the Electoral Commission and therefore entitled to campaign directly in favour of one side of the referendum. ‘Designated organisations’ are the groups selected by the EC as the lead campaign groups for either side.

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.
Rule 6.10 – on radio, the full list of candidates only needs to be broadcast once a day – other programmes can refer listeners to a website where they can find the full list.

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.
Compliance with 7.3 will normally be required for contributors’ consent to be ‘informed’.

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’.
Any exam question on section 8 will require some discussion of whether the infringement in the scenario was ‘warranted’.
Meaning of “legitimate expectation of privacy”:
Legitimate expectations of privacy will vary according to the place and nature of the information, activity or condition in question, the extent to which it is in the public domain (if at all) and whether the individual concerned is already in the public eye. There may be circumstances where people can reasonably expect privacy even in a public place. Some activities and conditions may be of such a private nature that filming or recording, even in a public place, could involve an infringement of privacy. People under investigation or in the public eye, and their immediate family and friends, retain the right to a private life, although private behaviour can raise issues of legitimate public interest.

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.
Second point – weight of privacy interests will be greater in respect of certain information – eg info disclosing location of someone’s home (practice 8.2) – so will need greater public interest to be warranted.

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).
ALL – unless warranted.

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.
8.3 doesn’t just apply to people experiencing ‘suffering and distress’.

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