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This section is laid out as follows:

• Proposed Code section 5
• Background to proposed Code section 5
• Proposed inclusions
• Proposed deletions
• Questions

Proposed Code, section 5, Due Impartiality and Due Accuracy and Undue Prominence of Views and Opinions

(section 319(2)(c) and section 320 of the Act)

This section of the Code does not apply to the BBC which is regulated on these matters by the BBC Board of Governors.

Principles

To ensure that news, in whatever form, is reported with due accuracy and presented with due impartiality.

To ensure that controversial political and industrial matters and matters of current public policy are dealt with accurately, fairly and with an appropriate level of objectivity and even-handedness.

To encourage a wide range of views on controversial political and industrial matters and matters of public policy.

To ensure that broadcasters do not use their services as a platform for their views on controversial political and industrial matters and matters of public policy.

To ensure that the views and opinions of particular persons or bodies on controversial political and industrial issues and events and matters of public policy are not given undue prominence.

Rules

News

5.1 News, in whatever form, must be reported with due accuracy and presented with due impartiality

5.2 An appropriate range of views should be fairly and dispassionately reported and presented over an appropriate time scale when covering controversial political and industrial events and issues and matters of current public policy. This is particularly so on matters of major political or industrial controversy and major matters relating to current public policy.

5.3 Significant mistakes should be acknowledged as quickly as possible and corrected on air with due weight.

5.4 No active politician should be used as a newsreader, interviewer or reporter in any news programmes. Where, in exceptional circumstances this may be editorially justified, the political allegiance must be made clear to the audience.

5.5 Simulated news bulletins in other programmes (eg drama, current affairs) must be produced in such a way that there is no reasonable possibility of listeners or viewers being misled into believing they are listening or watching an actual news bulletin.

Special impartiality requirements

Matters of political or industrial controversy and matters relating to current public policy on television services, teletext services, national radio and national digital sound programmes and services

5.6 Due impartiality on matters of political and industrial controversy and matters relating to current public policy must be preserved on the part of the person providing a television service, teletext service, national radio and national digital sound programmes and service. This may be achieved within a programme or over a series of programmes taken as a whole.

Meaning of "due impartiality":

Impartiality requires fairness, accuracy and an appropriate level of objectivity and even handedness of approach to a subject. "Due" is an important word in the context of impartiality. "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. It means adequate or appropriate to the subject and nature of the programme. So the approach to 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 2 of the Code, is important.

Meaning of "matters of political or industrial controversy and matters relating to current public policy":

Matters of political or industrial controversy are political or industrial issues or events on which politicians, industry and/or the media are in debate. Matters relating to current public policy need not be the subject of debate but relate to a policy under discussion or already decided by a local, regional or national government or by bodies mandated by those public bodies to make policy on their behalf e.g. non governmental organisations, relevant European institutions etc.

Meaning of "series of programmes taken as a whole" (in relation to television and national radio):

This means more than one programme in the same service, editorially linked, dealing with the same or related issues within an appropriate period and aimed at a like audience. A series can mean e.g. a strand, or two programmes (such as a drama and a debate about the drama) or a 'cluster' or 'season' of programmes on the same subject.

5.7 The transmission of editorially linked programmes dealing with the same subject matter (as part of a 'series' in which the broadcaster aims to achieve due impartiality) should normally be announced to the audience on air.

5.8 Views and facts must be represented clearly, accurately, fairly and with due weight over appropriate time-frames.

5.9 Any off air status of a reporter or presenter, which might call into question his or her role in the programme, must be made transparent to the audience.

5.10 If a reporter or presenter is receiving money or benefits from any individual or group whose views are included in the programme, then that must be made clear to viewers or listeners.

5.11 Presenters, reporters, presenters of 'personal view' or 'authored programmes' and chairs of discussion programmes may express views on matters of political or industrial controversy or matters relating to current public policy as long as those views are adequately challenged by alternative voices either in the programme (eg through the inclusion of interviews, phone-in or panel debate), or in a series of programmes taken as a whole. Presenter phone-ins must invite and must not exclude alternative views.

5.12 Presenters must not use the advantage of regular appearances as a platform to give views undue prominence.

5.13 A 'personal view' or 'authored' programme must be clearly signalled to the audience at the start and end. (Personality phone-in hosts on radio are exempted from this provision unless their personal view status is unclear).

Meaning of "personal view" and "authored":

'Personal view' programmes are programmes where the presenter is presenting his or her personal view, opinion or beliefs on these matters. Personal views can range from the outright expression of highly partial views e.g. by a person who is a member of a lobby group and is campaigning on the subject, to the considered 'authored' opinion of a journalist, commentator or academic, with professional expertise or a specialism in an area which enables her or him to express opinions which are not necessarily mainstream

Matters of major political or industrial controversy and major matters relating to current public policy on television services, teletext services, national radio and national digital sound programmes and services

5.14 The rules described under due impartiality above apply. In addition, due impartiality must be preserved by the person providing a television service, teletext service, national radio and national digital sound programmes and service in each programme or in clearly linked and timely programmes on matters of major political and industrial controversy and major matters relating to current public policy, in which the matter is the subject (or a significant part) of the programme.

Meaning of "matters of major political or industrial controversy and major matters relating to current public policy":

These will vary according to events but are generally matters of political or industrial controversy or matters of current public policy which are of national, and often international, importance.

5.15 A full range of significant views and relevant facts must be represented clearly, accurately, fairly and with due weight in each programme or in clearly linked and timely programmes concerning matters of major political and industrial controversy and major matters relating to current public policy.

Undue prominence in programming on matters of political or industrial controversy and matters relating to current public policy (local radio services, local digital sound programme services, or radio licensable content services)

5.16 Broadcasters should not give undue prominence to the views and opinions of particular persons or bodies on matters of political or industrial controversy and matters relating to current public policy in programmes included in the service taken as a whole.

Meaning of "undue prominence of views and opinions" (in this section):

Undue prominence is a significant imbalance of views aired within coverage of matters of political or industrial controversy or matters relating to current public policy.

Meaning of "programmes included in the service taken as a whole" (in this section):

Programmes included in the service taken as a whole, means programming dealing with the same or related issues within an appropriate period.

Views of television and radio licensees and S4C (excluding radio and television restricted services)

5.17 Television and radio services and S4C (with the exception of restricted services) must exclude all expressions of the views and opinions of the persons providing the service on matters of political and industrial controversy and matters relating to current public policy. Views and opinions relating to the provision of programme services are excluded from this requirement. (The service may include the expression of views and opinions by the persons providing the service if they are speeches in a legislative forum.)

Background to proposed Code section 5 - Due Impartiality

1. The principles and rules in this section of the Code are based on sections 319(2)(c) and (d) and 320 of the Act. (You can find these in annex 4 of this consultation). We have also carefully considered Article 10 of the Convention - the right of free expression. (You can find this in annex 6 of this consultation.)

2. The wording of the legislation (or its intention) has not changed in any significant manner from the relevant sections of the 1990 Act.

3. Previous regulation on 'due impartiality', 'due accuracy' and 'undue prominence' was contained in section 3 and 2.12 of the ITC Programme Code, and in section 1 of the RA News and Current Affairs Code, (some of that section also deals with fairness matters).

4. High profile cases in the last few years under the ITC have included a John Pilger programme on Palestine on ITV, and Fox News during the Iraq war. In neither case was the broadcaster found to be in breach of the ITC Programme Code.

Proposed Inclusions

5. The four principles are new. Principles one, two and four are based on wording from the Act. Principle three is an expression of the high level principle behind the creation of due impartiality legislation and is also an acknowledgment of the Article 10 of the Convention.

News

6. Rules 5.1 is based on wording from the Act. Impartiality and the News a research study conducted by Ipsos-RSL on behalf of Ofcom/ITC in December 2003 (Ofcom review of public service television broadcasting phase 1 annex 7.11, 2004) examined attitudes to news impartiality in the UK. Over three-quarters of the 4000 respondents said impartiality in news was a good thing. Accuracy was viewed as even more important. The survey demonstrated that there are greater expectations for news channels that are perceived to be aimed at a UK audience than there are for channels with a global audience or for retransmitted news services made originally for non UK audiences. Section 319(4)(c) of the Act requires Ofcom to have regard in setting standards to the likely expectation of the audience and the extent to which the nature of a programme's content can be brought to the attention of potential members of the audience.

7. However it would be possible to create a new rule to add here. The research could be taken to show that given the complaints received during the Iraq war by the ITC, the essential tool UK audiences require is an indication of whether they are watching or listening to news that is primarily made for an overseas audience. This also fits in with the spirit of section 319(4)(d) of the Act. Over 70% in the survey recognised examples of retransmitted news services that were in fact made for a country outside the UK or for a global audience, but that leaves a proportion who did not realise that. A rule could be created which says retransmitted news made originally for a non UK audience should, in some way, be labelled as such. Such a rule would aid transparency for the proportion in the survey who did not realise they were watching a non UK news. But would such a rule, which would be particular to the United Kingdom, be necessary, consistent, proportionate and achievable? It would still be the case that such services must ensure that a wide range of views and opinions are aired and that 'due impartiality ' is still maintained. A question on this can be found at the end of this section.

8. Rule 5.2 is based on wording from the Act. Additional wording is drawn from the previous Codes as they are clear and well understood by broadcasters. The words 'appropriate time scale' have replaced the idea that views should be carried during the period in which a controversy is active and that editorial discretion will decide whether this is in a single news item or spread over bulletins.

9. Rule 5.3 draws on the intention of 'due accuracy' in the Act. The word 'significant' has been put there to acknowledge that some mistakes are more important than others and mistakes which are insignificant may not need correction. Due weight also incorporates the expectation of due prominence.

10. Rule 5.4 explains how, in practice, 'due impartiality' must apply to politicians who present news and acknowledges the need for transparency. Broadcasters currently abide by this rule. Additional wording from the ITC and RA Codes may move into guidance.

11. Rule 5.5 can be found in section 2.12 (ii) of the ITC Programme Code and ties in with the idea of 'due accuracy' and also with the idea of transparency for the viewer and listener.

Special impartiality requirements

Matters of political or industrial controversy and matters relating to current public policy on television services, teletext services, national radio and national digital sound programmes and services

12. The next part of this section deals with the special impartiality requirements described in section 320 of the Act.

13. The meanings have been created to explain how Ofcom will interpret the legislation and to help viewers and listeners, in particular, understand what these, sometimes quite technical terms, mean.

14. Rule 5.6 is drawn from the words of the Act, section 320(1)(b), (2)(a) and (b) and 4(a) and is required by section 320(5)(a).

15. The meaning of "due impartiality" draws on the understanding that broadcasters already have of this term but has some fresh wording which, in particular takes account of the requirements of 319(4)(c) of the Act, that is the expectation of audiences, and how they may be altered.

16. The meaning of "matters of political controversy and matters relating to current public policy" is included to aid understanding by viewers, listeners and those who work in the broadcasting industry. The explanation regarding public policy is new but, we believe, captures the meaning of the Act.

17. The meaning of "series of programmes taken as whole" is of particular use to viewers and listeners. It gives examples of ways in which programmes may be grouped together. Ofcom is required by legislation to determine what constitutes a series by section 320(5)(b) of the Act. The word "series" has changed over time and now encapsulates the idea of clusters and seasons, not simply a short run of programming on one subject. The period in which such a series should be transmitted has not been defined because that can vary according to the issue. For example, a series about legislation that is due to be debated in Parliament in a week's time may need to be transmitted in that week whilst a series about legislation planned for a year's time could run over a much longer period. The meaning also includes the words that the programmes should be "aimed at a like audience". This is a concept that has been used in radio. In television terms it is understood that the type of audience available e.g. in peak is different to those available in the middle of the night or in daytime and if interested viewers are to be given the opportunity to hear further views then it should be at a time when they stand a reasonable chance of viewing the programme/s.

18. Rule 5.7 qualifies rule 5.6 by explaining that the existence of linked programmes in a series should normally be announced on air to the audience. This rule has generally been applied by broadcasters in the past and is not a new departure. It provides for greater transparency for the audience so that they know that they can find other views on an issue. It is not however an absolute requirement because it may be the case that over a long running issue fresh programming will be in the process of being made and the broadcaster will be unclear on precise transmission plans. This is a further explanation of what constitutes a series as required by section 320(5)(b) of the Act.

19. Rule 5.8 is a requirement that applies to rule 5.1. Fairness and factual accuracy are integral to "due impartiality" and are already understood by broadcasters. The words "clarity" and "due weight" have been added. Representing views clearly is part of a fair approach to different views. "Due weight" acknowledges that some facts and views are less important than others.

20. Rules 5.9 has been the practice for radio services and supports the general principle of transparency to the audience.

21. Rule 5.10 is a new rule but Ofcom believes that a financial or other benefit may be seen to be, or may be, an inducement to a presenter or reporter to take a particular line and in the interests of "due impartiality" and transparency the audience need to know this. This does not stop a programme from going ahead.

22. Rule 5.11 is drawn from current radio practice but is a change of emphasis from television custom and practice. It explains how "due impartiality" can be met whilst allowing presenters and reporters freedom of expression. Broadcasters feel that the 'requirement' in the ITC Programme Code to have a balancing "personal view" programme has had an inhibiting effect. Television broadcasters have been concerned that if they commission an opinion programme they will be constrained to broadcast a second opinion programme to balance it (taking the opposite view) and that presents scheduling difficulties and can be unattractive and unimaginative from the point of view of the audience. Broadcasters say that this has acted as a brake preventing the full expression of all shades of opinion, on significant matters, that are essential in a democratic society. Broadcasters have argued that it has inhibited their right of freedom of expression under Article 10 of the Convention to impart information and ideas and for the listener and viewers to receive them. Although broadcasters of course acknowledge that the right of freedom of expression is subject, under Article 10 to the restrictions, prescribed by law, which are necessary in a democratic society. (You can read Article 10 in annex 6.)

23. Rule 5.12 qualifies rule 5.11. It means that even if a presenter view is balanced, as described in rule 5.11, presenters may not, over time, use their position to continually promote a view. It is drawn from radio practice and is an extension of the principle expressed in section 320(1)(c) of the Act.

24. Rule 5.13 also qualifies rule 5.11. The aim is to inform the audience and give greater transparency. If this is complied with it allows greater freedom of expression for the broadcaster. The requirement to signal this type of programme to the audience - both at the start to inform those watching or listening, and also at the end for those who may have turned on part way through the programme - is drawn from 319(4)(c) and (d). It also means that at the start and end of a programme, when presenters and reporters most commonly lay out their thesis and conclusions, the audience is made aware that they are listening to a perspective even if the aim is to achieve due impartiality within the programme. It is not anticipated that the actual words "personal view" or "authored" will be necessarily used by broadcasters but whichever form of labelling most suits their brands and audiences. The balancing programme obligation itself has been removed and the different ways in which challenging views could be achieved is expressed in rule 5.11.

25. The meaning of "personal view" draws on the way the words are presently understood by broadcasters. However the word "authored" has also been explained. This is a departure. "Authored" is a technical expression used by broadcasters and unlikely to be understood by members of the public. It deals with the difficulty of calling the considered judgements of a respected commentator a "personal view" whilst they none the less may reflect what is in fact an opinion even though it is an opinion based on experience, knowledge and judgement. This is not intended to cover news reports by correspondents or extended programmes by news correspondents unless they are clearly giving a "personal view."

Matters of major political or industrial controversy and major matters relating to current public policy on television services, teletext services, national radio and national digital sound programmes and services

26. This part of the section concerning major matters contains two rules and one related meaning.

27. Rule 5.14 is based on the wording of section 320(6)(a) and (b) but adds some new wording. The new wording relates to the timing of a balancing programme or programmes and to signalling that such a programme/s exists to the audience It is there to aid transparency and links to section 319(4)(c). It also acknowledges the significance the Act gives to major matters of major political and industrial controversy and major matters relating to current public policy.

28. The meaning of major matters draws on wording that is well understood by broadcasters.

29. Rule 5.15 draws on the wording of rule 5.8 but applies to major matters. As this relates to major matters the rule further requires that a full range of significant views and relevant facts should be included in the programme or series.

Undue prominence in programming on matters of political or industrial controversy and matters relating to current public policy (local radio services, local digital sound programme services, or radio licensable content services)

30. The part of this section on "undue prominence" in programming contains one rule and two related meanings. Rule 5.16 draws on section 320(1)(c) of the Act.

31. The meaning of "undue prominence of views and opinions" draws on broadcaster's current understanding of the meaning of these words.

32. The meaning of "programmes included in the service taken as a whole" is a change in meaning. Previously the RA specified a period of three months before the transmission of the item in question and three months after. This has been changed to the wording "appropriate period" and acknowledges that some matters are current for a short period and others for much longer. If the broadcaster has a reasonable proposition for the timing of programmes within a service then that will be a more logical way of approaching timing than using an arbitrary time frame. It will however be open to a listener with a complaint to say why the listener thinks the broadcaster's approach to the appropriate period may be wrong.

Views of television and radio licensees and S4C (excluding radio and television restricted services)

33. The final part concerning the views of television and radio licensees and S4C contains one rule, 5.17 which is based on wording from section 320(1)(a)of the Act.

Proposed deletions

34. The specific section regarding personal view programmes contained in section 3.5 of the ITC Programme Code has been removed. Personal view programmes are allowed but the rules regarding how balance may be achieved, that facts should be respected and transparency at the front of the programme have all been dealt with as separate matters that apply to all programmes dealing with matters defined in section 320 of the Act.

35. Section 3.6 of the ITC Programme Code contains guidance regarding interviews and discussion has also been removed as it does not have the force of a rule.

36. General narration has also been removed. Where relevant, aspects of this may be included in guidance to this section of the Code.

Questions

Question 8a:
Are the principles, rules and meanings necessary, consistent, proportionate and achievable? If not, can the wording be improved and if so how?

Question 8b:
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?

Question 8c:
Does this section encourage imaginative and challenging programming on controversial matters?

Question 8d:
In particular do rules 5.11, 5.12 and 5.13 and the associated meanings of "personal view" and "authored" programmes give broadcasters enough flexibility to produce challenging programmes while ensuring that the Act is complied with?

Question 8e:
Would appropriate labelling help the UK audience understand the nature of retransmitted news services (not primarily intended for the UK market)?

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