Home > Consultations > Consultation Documents > Broadcasting_code > Ofcom broadcasting code > Section 3

In this proposed Code introduction, references to Code sections and appendixes refer to sections and appendixes in the proposed Code, not to sections in the consultation.

• Proposed Code Introduction
• Background to proposed Code Introduction
• Proposed inclusions
• Proposed deletions
• Questions

Proposed Code Introduction

This Code is for the use of the public and for those who work in broadcasting, or in connection with broadcasting.

Broadcasting is a creative and evolving medium where choice, innovation and experimentation serve the interest of both citizens and consumers.

Freedom of expression is an essential human right. It is the right to hold opinions, to receive information and ideas and to impart them.

Broadcasting and freedom of expression are intrinsically linked. The one is the life blood of the other. Nowhere can that tension between the right to freedom of expression and its restriction be more acute than in drawing up a Code which seeks to regulate broadcasting.

The main purpose of the Code is to set standards which will protect viewers and listeners whilst still enabling broadcasters to be creative and to express a full range of views.

The Code is laid out in terms of principles, meanings and rules. The purpose of the principles is to help broadcasters understand the standards objectives and apply the rules. Broadcasters must ensure that they comply with the rules as set out in the Code. The meanings help explain what Ofcom intends by some of the words and phrases used in the Code. Relevant legislation is noted under section headings so readers can turn to the actual legislation if they wish.

The Code does not seek to address each and every situation that could arise. Broadcasters may face a number of individual cases which are not specifically referred to in this Code. Examples included in the Code are not exhaustive. However, the principles, as outlined in the following sections, should make clear what the Code is designed to achieve in terms of compliance and help broadcasters make the necessary judgments.

To further assist those who work in broadcasting, as well as viewers and listeners who wish to understand broadcasting standards or make a complaint, non-binding guidance to accompany the Code will also be issued by Ofcom on the Ofcom website (www.ofcom.org.uk) and will be regularly reviewed. Members of the public who have no access to the web can ask Ofcom to send them a copy by post.

Broadcasters should be familiar with their audiences and ensure that programme content can always be justified by the context and the editorial needs of the programme. (In the Code, the word 'programmes' is taken to mean both television programmes and radio programming.) No subject matter is prohibited by this Code. But it is expected that broadcasters will ensure at all times that their programmes comply with the law, respect the truth and respect human dignity. These are minimum standards applicable to all programmes and are relevant as appropriate to all the standards objectives. They are set in accordance with Ofcom's general duties under sections 3(2)(e) and (f) and 3(4)(g)-(j) and section 319(5)(a) of the Act, and apply to all broadcasters. A programme which does not comply with the law, respect the truth or respect human dignity is likely to breach one or more standards objectives.

In setting standards for fairness and privacy and standards for the content of programmes to be included in television and radio services, Ofcom is required by the Communications Act 2003 (the Act) and also by the Broadcasting Act 1996 (the 1996 Act) to draw up a Code or Codes relating to standards in programmes, sponsorship and fairness and privacy. See sections 3(2)(e) and (f), 319, 320, 321 and 326 of the Act and sections 107(1) and (2) of the 1996 Act. (These extracts can be found in appendix 1 of the Code). Ofcom is required (under section 319(4) of the Act) to take account of each of the following matters, to the extent Ofcom thinks relevant in securing the standards objectives:

1. the degree of harm and offence likely to be caused by the inclusion of any particular sort of material in programmes generally or in programmes of a particular description;
2. the likely size and composition of the potential audience for programmes included in television and radio services generally or in television and radio services of a particular description;
3. the likely expectation of the audience as to the nature of a programme's content and the extent to which the nature of a programme's content can be brought to the attention of potential members of the audience;
4. the likelihood of persons who are unaware of the nature of a programme's content being unintentionally exposed, by their own actions, to that content;
5. the desirability of securing that the content of services identifies when there is a change affecting the nature of a service that is being watched or listened to and, in particular, a change that is relevant to the application of the standards set under this section;
6. the desirability of maintaining the independence of editorial control over programme content.

These criteria have informed Ofcom's approach to setting the Code and therefore must be taken into account by broadcasters in interpreting the rules.

The Code applies to programmes and sponsorship on radio and television services licensed by the Office of Communications (Ofcom), to the British Broadcasting Corporation (BBC) and Sianel Pedwar Cymru (S4C) and S4C digital. Broadcasters are required by the terms of their Ofcom licence, and, in the case of the BBC by the BBC Agreement^(-1-), and, in the case of S4C by statute, to observe the standards set out in this Code.

However, sections 5 and 6 of this Code, regarding impartiality and election and referendum coverage and sections 9 and 10, regarding sponsorship and commercial references and other matters, do not apply to the BBC. The BBC is regulated separately by the BBC governors on matters of impartiality, accuracy in news and the undue prominence of views and opinions which includes election and referendum coverage. The BBC does not take sponsorship and section 13 refers to international obligations in the European Television Without Frontiers Directive (TWF Directive) which the UK government has decided not to apply to the BBC. The relevant sections of the TWF Directive would apply to the BBC only if the government was to issue a notification to that effect.

The Code has been drafted in the light of the Human Rights Act 1998 (the HRA) and the European Convention on Human Rights (the Convention). In particular, the right to freedom of expression, as expressed in Article 10 of the Convention, encompasses the audience's right to receive creative material, information and ideas without interference but subject to restrictions required by law and necessary in a democratic society. This Article together with Article 8 regarding the right to a person's private and family life, home and correspondence, can be found in appendix 3 of the Code.

The Code also gives effect to a number of requirements relating to television in the TWF Directive. The relevant extracts can be found in appendix 2 of the Code.

It is the responsibility of the broadcaster to ensure compliance with the Code. Programme makers who require further advice on applying this Code should, in the first instance, talk to those editorially responsible for the programme and to the broadcaster's compliance and legal officers.

Ofcom can offer general advice on the interpretation of the Code. However, any such advice is given on the strict understanding that it will not affect Ofcom's discretion to judge cases and complaints after transmission and will not affect the exercise of Ofcom's regulatory responsibilities. Broadcasters should seek their own legal advice on any compliance issues arising. Ofcom will not be liable for any loss or damage arising from reliance on informal advice given pre-broadcast.

Background to Proposed Code Introduction

1. Key legislative extracts from the Act and the 1996 Act can be found in annex 4.

2. Ofcom is required by section 3(2)(e) of the Act to apply standards that provide adequate protection to members of the public from the inclusion of harmful and offensive material in television and radio services. Section 3 (2)(f) of the Act also requires Ofcom to apply standards that provide adequate protection to members of the public and all other persons from unfair treatment in programmes and unwarranted infringement in privacy resulting from the activities of radio and television services.

3. Ofcom is required by section 319(1) of the Act to set standards to secure standard objectives set out in section 319(2) of the Act. Section 319(3) of the Act further states that those standards must be contained in one or more Codes.

4. In setting these standards Ofcom must have regard to matters laid out in section 319(4) of the Act such as the likely expectations of the audience. These standards must include minimum standards for all television and radio services (section 319(5)(a) of the Act) and such other standards as appear to be appropriate for securing the objectives (section 319(5)(b) of the Act). Section 319(6)(a) and (b) of the Act includes particular provisions that must apply to religious programmes. Section 319(7) of the Act requires Ofcom to take into account international obligations notified to Ofcom by the Secretary of State.

5. Ofcom must also implement the relevant provisions of the TWF Directive. Some key extracts can be found in annex 5 of this consultation.

6. Additionally, with regard to sponsorship, Ofcom is required by section 321 (1)(a) and (b) of the Act to include general provisions governing standards and practice in the sponsorship of programmes and may include provision prohibiting forms and methods of sponsorship (whether generally or in particular circumstances). Section 321(4) of the Act requires Ofcom, in relation to programme services, to have a general responsibility with respect to methods of sponsorship. It is also the duty of Ofcom to comply with any direction given by the Secretary of State regarding forms and methods of sponsorship that should not be employed in, or in connection with the provision of programme services as set out in section 321(5) and (6) of the Act.

7. With regard to fairness and privacy, Ofcom is required by section 327 of the Act to take over the functions of the Broadcasting Standards Commission contained in part 5 of the 1996 Act (with some exceptions). Particularly, however, under section 107(1) of the1996 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 and the unwarranted infringement of privacy in, or in the obtaining of material included in, programmes.

Proposed inclusions

1. The introduction to the proposed Code is intended to set the tone and draw up the background for the whole Code. Its purpose is to set out clearly the parameters for the Code, Ofcom's legal obligations in drawing up the Code, and the effect that it is intended that the Code will have.

2. The introduction is a narrative. Ofcom invites comments on the introduction as a whole or on specific matters raised in it.

3. The introduction sets out what areas are covered by the Ofcom Broadcasting Code and who the Code applies to. It explains why Ofcom has drawn up the Code and why broadcasters must comply with it. The introduction also draws attention to relevant sections of the HRA along with certain central principles - respect for the law, the truth and human dignity - as these are key to Ofcom's expectations of all broadcast material. Respect for the law, the truth and human dignity are minimum standards that may relate to each of the standards objectives as relevant depending on the nature of the broadcast, and are set in accordance with Ofcom's duties under the Act. They apply to all broadcasters.

4. The introduction sets out the structure of the Code and how is should be used. It lists the considerations in the legislation Ofcom considers are relevant to complying with the Code. The introduction also explains to what extent Ofcom can and will give guidance.

Proposed deletions

5. The introduction to the proposed Code does not replace any specific part of the Codes of the legacy regulators.

Questions

Question 3a:
Does the introduction appropriately set out the purpose and background of the Code and does it achieve the right balance between giving broadcasters creative and editorial freedom while protecting listeners and viewers?

Question 3b:
Should there be one Code or more than one Code? (Please see the RIA in section 14 of this consultation for further information.)

Question 3c:
Is the approach suggested by Ofcom the best approach to the proposed new Code/s? If not, is there a better approach and, if so, what? (Please see the RIA in section 14 of this consultation for further information.)

Question 3d:
Should the Code differentiate between different types of services with different rules for different services, or does the proposed approach allow sufficient latitude for services to interpret the rules appropriately for their audiences? (Please see the RIA in section 14 of this consultation for further information.)

---

Footnotes:

1. - the BBC "Agreement" is the Agreement dated 25 January 1996 between Her Majesty's Secretary of State for National Heritage (now the Secretary of State for Culture, Media and Sport) and the British Broadcasting Corporation as amended by the Amendment dated 4 December 2003

next

Back to top