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Regulatory background

1. The BBC Trust (“Trust”) regulates the whole of the BBC’s output. Also under the terms of the Charter 2006, the Agreement 2006 and the Communications Act 2003 (“the Act”), some content broadcast on BBC’s UK Public Broadcasting services is regulated not only by the Trust but also by the Office of Communications (“Ofcom”). In respect of such content, both organisations have overlapping regulatory jurisdiction.

2. As set out in Section 2 (Areas of Ofcom/Trust engagement) of the Memorandum of Understanding 2007 (“MoU”) and clause 46 of the Agreement (Regulatory Obligations on the UK Public Services – Programme Code Standards), in providing UK Public Broadcasting Services the BBC is required to observe certain programme standards set by Ofcom to secure some of the objectives listed in section 319 of the Act, namely that:

• persons under eighteen are protected;
• material likely to encourage or to incite the commission of crime or to lead to disorder is excluded;
• that the proper degree of responsibility is exercised with respect to the content of religious programmes;
• generally accepted standards are applied so as to provide adequate protection for members of the public from the inclusion in services of offensive and harmful material; and
• there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred;

3. Under section 198 (1) and (2)(a) of the Act it shall be the function of Ofcom to the extent that provision for them to do so is given in the BBC Charter and Agreement, to regulate the provision of the BBC’s services and the carrying on by the BBC of other activities for purposes connected with the provision of those services. Under Section 319(2)(f) of the Act, Ofcom has a duty to set standards to secure that generally accepted standards are applied to the content of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material. Ofcom regulates for both actual and potential harm and offence.

4. Under section 46(2)(b) of the Agreement, however, the BBC is required to observe that standard (and the other standards set by Ofcom) only to the extent that it does not concern the accuracy or impartiality of the content of any BBC programme. This reflects the Trust‘s exclusive jurisdiction to ensure the accuracy or impartiality of the BBC’s programme content.

Jurisdiction and addition to the MoU

5. No difficulty arises when a service/programme gives rise to an issue of accuracy or impartiality alone: the Trust has sole jurisdiction. But sometimes a single service/programme gives rise to an issue both of offence and/or harm, and accuracy.

6. In such a situation, Ofcom and the Trust have agreed that the following approach will apply: both organisations have jurisdiction only if the fundamental issue satisfies three conditions:

• It is not an issue arising from News/news headlines or Current Affairs content as defined in the Memorandum of Understanding; and
• It arises from deceptive or misleading content; and
• It arises from (a) an explicit on-air invitation to the audience to participate in a vote^(-1-) or competition and harm or offence to members of the public is, or is likely to be, caused or (b) an on-air invitation to the audience/members of the public to act in a manner likely to result in material harm and/or offence (for example, actions likely to result in detrimental life changing consequences such as injury to health or financial well being).

Otherwise, the BBC Trust has sole jurisdiction over issues concerning accuracy or impartiality (including issues arising from deceptive or misleading content) in all the BBC’s services/programmes.

Resolution of jurisdictional disputes

7. Should there be a difference as to whether the conditions in 6 are fulfilled representatives of Ofcom and the Trust will consider and discuss the application of the approach set out above, in the light of the content of the particular service/programme in issue, with a view to reaching prompt agreement.

8. If prompt agreement proves impossible, representatives of both organisations will remain willing and available to continue their dialogue with a view to reaching agreement within a reasonable time.

9. If no agreement can be reached within a reasonable time, the dispute will be referred to more senior designated representatives according to the agreed procedure for resolution set out in Section 3 of the Memorandum (How Ofcom and the Trust will work together: Reconciliation of disputes - page 9).

BBC Trust 16 July 2008
Ofcom Board 15 July 2008

Footnotes:

1.- Vote does not include opinion polls, that is schemes in which viewers are asked to express a point of view by choosing a preference on a topic but where the outcome is confined to gauging a balance of opinion.

The full document is available below

• Addition to the Memorandum of Understanding between Ofcom and the BBC Trust to deal with regulatory jurisdiction [pdf]
  Full Print Version

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