Home > Consultations > Consultation Documents > Broadcasting_code > Ofcom broadcasting code > Section 10

Section 10, Consultation on the proposed Ofcom Broadcasting Code consultation

Fairness

Consultation published: 14|03|2005
Consultation closes: 14|03|2005

This section is laid out as follows:

Proposed Code section 7
Background to proposed Code section 7
Proposed inclusions
Proposed deletions
Questions

Proposed Code, section 7, Fairness

(sections 3(2)(f) and 327 of the Act and section 107(1) and 130(1) of the 1996 Act, TWF Directive Article 23.)

Foreword

This section and the following section on privacy are different from other sections of the Code. They apply to how broadcasters treat the individuals or organisations directly affected by programmes rather than to what the general public sees and/or hears as viewers and listeners. In this section, programmes includes advertisements.

This section contains rules Ofcom expects broadcasters to observe in order to avoid unfairness in programmes to individuals or organisations. However, failure to observe any rule in this section will normally only constitute a breach of this section of the Code where it results in unfairness in the programme. Importantly, the Code cannot foresee every eventuality and does not set out all circumstances in which there may be unfairness.

Principle

To ensure that broadcasters avoid unjust or unfair treatment in programmes of individuals or organisations.

Rules

7.1 Broadcasters should avoid unjust or unfair treatment of individuals or organisations in programmes.

Dealing fairly with contributors and obtaining informed consent

7.2 Broadcasters and programme makers should be straightforward and fair in their dealings with potential contributors to programmes. This normally includes making clear what the nature and purpose of the programme is and the nature of their respective contractual rights and obligations.

7.3 Where a person is invited to make a contribution to a programme (except when the subject matter is trivial or their participation minor), they should normally:

be told the nature of the programme, what the programme is about and be given a clear explanation of why they were asked to contribute and when and where it is likely to be first transmitted;
be told what kind of contribution they are expected to make e.g. live, pre-recorded, interview, discussion, edited, unedited etc;
be informed about the areas of questioning, and, wherever possible, the nature of other contributions;
be made aware of any significant changes to the programme as it develops which might reasonably affect their original consent to participate, and cause material unfairness (e.g. relevant changes in programme title or tone of the programme);
be told, if offered an opportunity to preview the programme, whether they will be able to effect any changes to it;
if the contributor is a child, consent should normally be obtained from a parent or guardian, or other person over the age of eighteen in loco parentis. In the case of an adult, who is not in a position to give informed consent, a person over the age of eighteen with primary responsibility for their care should normally give it on their behalf.

7.4 When a programme is edited, contributions should be represented fairly.

7.5 Guarantees given to contributors, e.g. relating to the content of a programme, confidentiality, or anonymity, should normally be honoured.

7.6 Broadcasters should ensure that the reuse of material, i.e. use of material originally recorded for one purpose and then used in a later or different programme, does not create unfairness (or an unwarranted infringement of privacy). This applies both to material obtained from others and the broadcaster's own material.

Opportunity to contribute and proper consideration of facts

7.7 Broadcasters should satisfy themselves, before transmitting a factual programme, that all material facts have been considered and are fairly presented.

7.8 Non-factual programmes (such as drama and drama-documentaries) should not distort facts in a way which is unfair to an individual or organisation. Care should also be taken in the characterisation or casting not to convey an unfair impression of the characters on whom the drama is based.

7.9 All relevant parties should be offered an opportunity to contribute where that is necessary to achieve fairness.

7.10 If a damaging critique is made in a programme, those concerned should normally be given an appropriate and timely opportunity to respond.

7.11 Anyone has the right to refuse to participate in a programme, but that need not prevent the programme from going ahead. Where a person chooses to make no comment or refuses to appear in a broadcast, the broadcast should make clear that the individual concerned has chosen not to appear and their explanation, if it could be unfair not to do so.

7.12 Where it is appropriate to represent the views of a person or organisation that is not participating in the programme, this must be done in a fair manner and tone.

Deception, set-ups and 'wind-up' calls

7.13 Broadcasters or programme-makers should not normally obtain or seek information, pictures or an agreement to contribute through misrepresentation or deception.

7.14 Use of material obtained through misrepresentation or deception may be warranted if it is in the public interest. Where there is no adequate public interest justification, consent should be obtained from the individual concerned before the material is broadcast. Material with celebrities and those in the public eye can be used without consent, however it should not be used without a public interest justification if it is likely to result in unjustified public ridicule or personal distress.

7.15 Unsolicited 'wind-up' style calls and set-up interviews require care and the person being 'wound up' should not be exploited. Consent should be obtained before broadcasting 'wind-up' calls and therefore such calls must normally be pre-recorded.

Background to proposed Code section 7 - Fairness

1. The regulation of broadcasting regarding fairness is intended to protect those taking part in person in a programme (or who are otherwise directly affected) from being unfairly treated.

2. Section 3(2)(f) of the Act requires Ofcom to apply standards that provide adequate protection to members of the public and all other persons from unfair treatment in programmes. With regard to fairness, Ofcom is required by section 327 of the Act to take over the functions of the BSC contained in part 5 of the 1996 Act (with some exceptions).

3. Particularly, under section 107(1) of the 1996 Act, Ofcom has a duty to draw up a Code giving guidance as to the principles to be observed and the practices to be followed in connection with avoiding unfair and unjust treatment in programmes. The legislation on which the regulation in this area is based is otherwise unchanged from the 1996 Act. The aim of the principle and rules in the proposed Code is therefore, as can be expected, similar to the Code of Guidance issued by the BSC which is currently in force.

Proposed inclusions

4. The foreword to this section of the Code is intended to explain to users of the Code who and what the section applies to. This is necessary because the sections on fairness and privacy are different from the other sections of the Code.

5. The rules in this section are largely similar to the predecessor Codes. The legislation, on which this section of the Code is based is unchanged. However the wording has changed in places to follow the structure adopted by this Code.

6. The principle and rule 7.1 directly mirror the wording of the legislation in the 1996 Act, section 107(1)(a).

7. Rules 7.2 to 7.6 set out the practices Ofcom expects broadcasters to follow to avoid unfairness when dealing with contributors and obtaining fully informed consent.

8. Rules 7.7 to 7.12 deal with broadcasters' obligation to provide an opportunity to contribute to those who otherwise may be treated unfairly and to give proper consideration to facts. These rules reflect the requirement in the TWF Directive Article 23 to provide a "right of reply". The concept of a right to reply is fundamental to fairness and sets a standard which should be applied across all service providers, whether subject to the TWF Directive or not.

9. Rules 7.13 to 7.15 set out the practices broadcasters are expected to follow when using methods involving deception, set-ups, or 'wind-up' calls to obtain material for their programmes.

Proposed deletions

10. This draft section, along with the section on Privacy, of the Ofcom Code will replace the BSC Code on Fairness and Privacy, section 2 of the ITC Programme Code and section 3 of the RA Programme Code. Ofcom proposes to remove some of the advisory narrative in the previous Codes. Where it is useful to do so, some of this may be included in the guidance. Significant omissions, i.e. omissions that imply that there could be a change in what is required from broadcasters and/or what the public can expect, are set out below.

11. Ofcom proposes to omit section 10 of the BSC Code on Fairness and Privacy regarding Correction and Apology. Requiring a broadcaster to broadcast an apology is not a sanction available to Ofcom.

12. Section 2.13 of the ITC Programme Code contains regulation regarding the provision of tapes and transcripts to others. Ofcom proposes not to include any rule to this effect in the Code.

Questions

Question 10a:
Are the principles, rules and meanings necessary, consistent, proportionate and achievable? If not, can the wording be improved and if so how?

Question 10b:
Are there any principles, rules or meaning we have not put here which would achieve the intentions of the Communications Act and other applicable legislation and be necessary, consistent, proportionate and achievable?