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Outline procedures for handling fairness and privacy complaints

Introduction

1. The Communications Act 2003 requires Ofcom to consider and, where appropriate, adjudicate on fairness and privacy complaints. This document outlines the procedures that Ofcom will normally follow when handling fairness and privacy complaints about programmes (“programme” includes an advertisement, teletext and any item included in television and radio services). Separate guidelines exist for the handling of standards complaints. These outline procedures have been prepared in the light of the Human Rights Act 1998 and the European Convention on Human Rights (which refers to the right to a fair trial) and are effective from 1 June 2006.

Making complaints

2. Due to their complexity, Ofcom will normally only consider fairness and privacy complaints that are in writing and on Ofcom’s fairness and privacy complaint form. ( For a complaint form go to Ofcom’s website at www.ofcom.org.uk or contact: Ofcom, Riverside House, 2a Southwark Bridge Road, London SE1 9HA, Tel No. 020 7981 3000 ). The details of the complainant and complaint (including time; channel; programme; nature of the complaint etc) will be needed. It is very important that the complainant provides as many of these details as possible - in particular, the title of the programme and on what channel/station it was broadcast - so that it can be correctly identified and a recording obtained as soon as possible from the broadcaster.

3. Once received, each complaint will be logged and the complainant will be given a reference number(-1-).

4. The complaint should normally be made by the “person affected” by the programme (see text box below). For the purposes of these outline procedures “a person” means an individual, association or corporate body. However, the complaint may be made by someone else on behalf of the person affected, provided s/he is authorised to do so by the person affected. In exceptional circumstances, a member of the family of the person affected or someone closely connected to that person may make a complaint without having obtained the authority of the person affected. This would be permitted if the person affected is unable to give that authority, for example, because s/he is under the age of 16.

The Person Affected

The “person affected” is a person who:

a) was a participant in the programme and may have been the subject of the alleged unfair treatment; or

b) whether a participant or not, had a sufficiently direct interest in the subject matter

of that alleged unfair treatment; and/or,

c) was a person whose privacy may have been infringed in a programme or in the making of a programme.

5. Ofcom may refuse to proceed with a fairness and/or privacy complaint if it appears not to have been made within a reasonable time after the broadcast of the programme. Complainants are therefore advised to submit complaints as soon as possible after the most recent broadcast of the programme. This should be no later than 32 calendar days after the broadcast of radio programmes, 50 calendar days after the broadcast of programmes on satellite and cable and 80 calendar days after the broadcast of terrestrial television programmes. This is because broadcasters are only required by law to retain recordings of their output for a limited period. These periods differ depending on whether the service complained about is television (terrestrial or other) or radio(-2-).

6. However if a complainant decides, in the first instance, to pursue the matter with the broadcaster then Ofcom will expect the broadcaster to retain the relevant recordings and any related material. Once the broadcaster has informed the complainant of the final outcome of their complaint, the broadcaster is expected to retain the recordings for the periods set out in Footnote 2 below. These periods run from the date at which the broadcaster may reasonably expect the complainant to have received the broadcaster’s final communication. It is expected that a complainant who then wants to take the matter to Ofcom will submit their complaint as soon as possible following the final communication from the broadcaster(-3-).

Complaint assessment

7. Upon receipt of a complaint Ofcom will normally forward a copy of the complaint to the broadcaster and ask it to provide a recording of the programme in question within five working days. Ofcom will then decide whether or not it can proceed with the complaint (i.e. whether to entertain the complaint). This decision is called the Entertainment Decision (see text box below) and is normally made by the Case Leader(-4-) (who will usually be the complainant’s main point of contact throughout the complaint process). The complainant and the broadcaster will be provided with a copy of Ofcom’s Entertainment Decision.

Entertainment Decision

The legislation sets out a number of criteria that must be satisfied before a fairness and privacy complaint can be entertained by Ofcom. The criteria are detailed below:

  • the complainant must be “the person affected” (see text box above) or someone properly authorised to act on behalf of “the person affected”;
  • the matter(s) complained of must not be the subject of legal proceedings in the UK or be more appropriately resolved by legal proceedings in the UK;
  • the complaint must not be frivolous; and,
  • it must not be inappropriate to entertain or proceed with consideration of the complaint for any other reason.

The Entertainment Decision sets out the heads of complaint on which Ofcom will proceed to adjudicate. These heads of complaint also form the basis of the final adjudication.

8. Not all complaints received will fall into Ofcom’s fairness and privacy remit. If the complaint falls outside that remit, then the complainant and broadcaster will be notified and provided with a copy of Ofcom’s Entertainment Decision which will explain why the complaint will not be taken forward for consideration (please also see “Reviewing an Executive Decision” below).

9. However, if the complaint raises other matters which are within Ofcom’s remit, the complaint will be passed to an appropriate member of the Executive(-5-) to investigate. (If it is a standards matter the Guidelines for the Handling of Standards Complaints and Cases will apply, for more information please refer to Ofcom’s website).

10. Where appropriate (for example, where the complaint is more complex), the Executive may decide not to make the Entertainment Decision itself but refer the complaint to the Fairness Committee to make that decision. The Fairness Committee is Ofcom’s most senior decision making body for fairness and privacy complaints (see “Fairness Committee” below).

Entertained complaints

11. Once a complaint is entertained, the consideration of it falls under Ofcom’s jurisdiction. It is essential to the integrity of Ofcom’s processes and its ability to adjudicate fairly that the parties concerned, both complainant and broadcaster, abide by all Ofcom’s published rules and procedures. These rules and procedures require, for example, that parties to a complaint should treat all correspondence, documents and other material concerning the complaint as confidential (see text box below).

Confidentiality

Confidentiality is necessary for the proper performance of Ofcom’s functions with respect to fairness and privacy adjudications and to enable the parties to prepare their cases fully and candidly.

Parties may normally publicly disclose the fact that a complaint has been made, or is being contested, and broadly what it is about. Parties may also use any information, which, though relevant to the proceedings, is already in the public domain and available from another source, for a purpose which is unrelated to the case.

However both parties are subject to the requirement of confidentiality in relation to all other material submitted and communications/correspondence entered into in relation to that complaint. Moreover, once a complaint has been entertained, neither party should take any steps which could – whether intentionally or not – compromise, or risk compromising, the fair adjudication of the matter by Ofcom or otherwise constitute, in Ofcom’s opinion, an abuse of process.

12. Failure by complainants to abide by Ofcom’s published rules and procedures may result in Ofcom discontinuing its consideration of the complaint. Failure by broadcasters to abide by these rules and procedures may result in Ofcom taking appropriate action against the broadcaster.

13. If the complaint is ‘entertained’, the broadcaster will be sent a copy of the Entertainment Decision, together with the complaint and any supporting documentation which relates directly to the complaint.

14. The broadcaster will be asked to provide, normally within 20 working days(-6-), either a proposal for ‘appropriate resolution’ (see text box below) or a statement in response to the complaint.

15. Where a broadcaster provides a proposal for ‘appropriate resolution’ the complainant will normally be given 10 working days to confirm whether or not they accept the proposal.

16. An extension to the deadline for any response will only be allowed in appropriate circumstances. Requests for such an extension must be made in writing as early as possible giving reasons for the request. Ofcom will inform both the broadcaster and complainant of any extension to the deadline.

Appropriate Resolution

At this stage, the complaint may be resolved without the need for adjudication by Ofcom provided the complainant is willing to consider an immediate proposal for redress and the broadcaster considers that it is appropriate to propose a remedy or redress. Examples of such redress might include, but are not restricted to, the editing of a programme for future broadcasts , an undertaking not to repeat the programme or an apology or correction in writing and/or broadcast.

Ofcom will not proceed with the complaint if the redress that is proposed is accepted by the complainant.

Ofcom will proceed with consideration of the complaint if the redress that is proposed is not accepted by the complainant. In these circumstances, the broadcaster will be asked to provide a statement in response within 20 working days in keeping with the requirements outlined in paragraph 15.

Ofcom will normally publish brief details of resolved complaints in the Ofcom broadcast bulletin on its website.

17. On receipt of the broadcaster’s statement, Ofcom will proceed as follows:

18. If a second round of statements is considered appropriate Ofcom will:

Any requests for an extension of time must be in accordance with paragraph 16 above.

19. After this point, Ofcom will only allow further written submissions in circumstances where it judges this is exceptionally required in order to adjudicate fairly on the matter.

20. New material is not normally accepted. The admission of new material will only be considered if it is:

Whether such material is admitted will be at the discretion of Ofcom. If new material is admitted it will be provided to the other party who will then be given an opportunity to comment on it.

21. Both the complainant and the broadcaster will see all the relevant material supplied by the other party, and on which that party seeks to rely, in relation to the matters at issue and which the Executive Fairness Group or Fairness Committee will consider, or have sight of, when reaching its adjudication.

The Executive Fairness Group

22. Once all the evidence has been submitted, Ofcom will consider whether the case should be decided by the Executive Fairness Group or the Fairness Committee. The case will be decided by the Executive Fairness Group if Ofcom considers that, for example, it does not raise complex issues (see text box below for information on the Executive Fairness Group). The Executive Fairness Group will make a Provisional Decision (i.e. upheld, not upheld, upheld in part), which it will provide with reasons, to both parties.

23. Both parties will then have 10 working days to comment on factual inaccuracies or typographical errors in the Provisional Decision or submit grounds for a review of the Provisional Decision.

24. If within 10 working days of Ofcom’s notification to the parties of the Provisional Decision neither party requests a review of that decision (see section on “Reviewing a n Executive Decision” below), the Adjudication is finalised and sent to both parties.

Executive Fairness Group

The Ofcom Board has delegated authority to the Executive Fairness Group in relation to fairness and privacy complaints.

The remit of the Executive Fairness Group includes:

a) considering and adjudicating on fairness and privacy complaints referred to it; and,

b) approving the wording of the provisional decisions and final adjudications of complaints it has adjudicated upon.

The Group normally has three members, all of whom shall be drawn from the Executive, and normally consists of two senior members of the Executive and the Case Leader with responsibility for managing the case. The Group may be attended by a legal adviser and, as appropriate, any other Ofcom colleagues.

Reviewing an Executive Decision

25. If the complainant or broadcaster is dissatisfied with a decision made by the Case Leader or the Executive Fairness Group (Entertainment Decision or Provisional Decision respectively) then they may request a review within 10 working days. Any requests for an extension of time must be in accordance with paragraph 16 above. A review will normally only be granted if the dissatisfied party puts forward an arguable case that the decision is flawed on, for example, any of the following grounds:

26. The decision whether or not to grant a review will be taken by a more senior member of the Executive who was not party to the original decision, and will normally be made by reference only to the grounds for review put forward by the person who has requested it. Advice may be sought from an Ofcom lawyer who has not previously been the appointed legal advisor on the case. Reasons for the decision will be provided to both parties.

27. Any review granted will be undertaken by the Fairness Committee (see section on the Fairness Committee below). The Fairness Committee will normally only reconsider those elements of the decision under review, on the grounds put forward by the party who requested a review. However, there may be exceptional circumstances where other elements of the decision will be referred to the Fairness Committee for review. The decision of the Fairness Committee on any Entertainment Decision or adjudication, referred to it for review, is final.

28. If a review of a Provisional Decision is not granted, the adjudication is finalised and will be sent to both parties.

The Fairness Committee

29. The Fairness Committee will consider cases referred to it by the Executive for decision, for example, because they are complex (see text box below for information on the Fairness Committee).

The Fairness Committee

The Ofcom Board has delegated authority to the Fairness Committee in relation to fairness and privacy complaints.

The remit of the Fairness Committee includes:

a) deciding whether to entertain or proceed with the consideration of fairness and privacy complaints where such decisions have been referred to it by the Case Leader;

b) considering and adjudicating on fairness and privacy complaints referred to it by the Case Leader or the Executive Fairness Group (for example, due to their complexity); and,

c) reviewing an Entertainment Decision or Provisional Decision made by the Case Leader or the Executive Fairness Group respectively where either one or both of the parties have made out a case for that decision to be reviewed (see section on “Reviewing an Executive Decision” above).

The Fairness Committee consists of a minimum of three members, all of whom are drawn from the Content Board. The Committee is attended by a legal adviser and, as appropriate, any other Ofcom colleagues. For more information on the Fairness Committee’s role please refer to Ofcom’s website.

30. The Fairness Committee will make a decision, based on the submissions of both parties, at a Decision Meeting.

31. In some circumstances Ofcom may decide to hold a hearing (see text box on Hearings below) before reaching a decision(-7-), if Ofcom considers that a hearing will advance its understanding of the case. For example where there is a conflict of interest, or a lack of clarity in the written submissions, which is likely to be resolved by a hearing. At the hearing the parties will be invited to make oral representations. Normally fifteen working days notice of the hearing date will be given to the parties. Hearings may take place in Scotland, Wales, Northern Ireland or England, as appropriate.

Hearings

Hearings are held in private. A representative from Ofcom will make notes, but the hearings will not normally be recorded. Each of the parties may bring to the hearing any other person (normally up to a maximum of three other people). Their names, connection to the case and a description of the role they intend to play at the hearing, should be given to Ofcom at least five working days before the hearing. Ofcom must also be informed if any person to attend a hearing is under the age of 16.

The procedure at the hearing will be at the discretion of the Chair, but will normally be as follows:

  • the Chair explains the proceedings;
  • the complainant briefly summarises their case (normally up to 10 minutes);
  • the broadcaster briefly summarises its case (normally up to 10 minutes);
  • the Fairness Committee may put questions to the broadcaster and/or the complainant;
  • at the Chair’s discretion, the parties may ask each other questions but only through the Chair;
  • the broadcaster then makes a brief final statement (normally up to 5 minutes); and,
  • the complainant then concludes with a brief final statement (normally up to 5 minutes).

32. New material is not normally accepted at the hearing. The admission of new material will only be considered if it is:

Whether such material is admitted at the hearing will be at the discretion of the Chair. If new material is admitted it will be provided to the other party who will then be given an opportunity to comment on it.

33. At the Decision Meeting or following the hearing, the Fairness Committee will decide if the complaint is upheld, partly upheld or not upheld.

34. The Fairness Committee’s Provisional Decision (or Entertainment Decision) will be sent to both parties. 10 working days will be allowed for comment. Either party may raise factual inaccuracies or typographical errors for consideration by the Committee. In addition either party may draw to the attention of the Fairness Committee that in their view the decision merits reconsideration(-8-) on, for example, any of the following grounds:

35. If Ofcom feels that a point has been made which is material to the substance of the decision, then any such representations will be copied to the other party who will then be given 10 working days to comment. Those comments will be copied to the other party for information. Any requests for an extension of time must be in accordance with paragraph 16 above.

36. The Fairness Committee will take into account all material representations and comments before it concludes the adjudication (or Entertainment Decision). The final adjudication (or Entertainment Decision) of the Fairness Committee will then be sent to both parties.

Adjudications generally

(Fairness Committee and Executive Fairness Group)

37. Ofcom will normally publish, in the Ofcom broadcast bulletin on its website, a copy of its adjudication on each complaint.

38. If a complaint is upheld or partly upheld, then Ofcom may also direct the broadcaster to broadcast a summary of its adjudication(-9-). Both parties will be given the opportunity to comment on the summary of the adjudication.

39. Ofcom will normally make such a direction where there has been a breach of the fairness and/or privacy sections of the Ofcom Broadcasting Code which has resulted in a complainant’s legitimate interests being seriously damaged and requires a remedy over and above publication in the Ofcom broadcast bulletin. Any decision to direct will reflect Ofcom’s duties to be proportionate, consistent and targeted only at cases on which, in Ofcom’s view, action is merited.

Sanctions

40. If Ofcom believes that a fairness and privacy adjudication against a broadcaster may justify consideration of a statutory sanction against the broadcaster, (according to Ofcom’s published criteria for considering sanctions), then the case will be referred back to a Case Leader. The Outline Procedure for Statutory Sanctions in Content Cases will then apply (for more information please refer to Ofcom’s website).

Footnotes:

1.- Ofcom’s annual report (which can be found on the Ofcom website) contains key performance indicators which give the best practice average times for concluding a fairness and/or privacy complaint.

2.- Recordings of radio programmes must be kept by broadcasters for 42 days after the broadcast. Recordings of television programmes must be kept for 60 days except in the case of BBC1, BBC2, ITV1, Channel 4, Five and S4C in which case recordings must be kept for 90 days.

3.- Broadcasters should be aware that they are required to ensure that Ofcom’s functions in relation to fairness and privacy complaints are brought to the attention of the public. (These include functions which enable complainants to ask Ofcom to consider complaints where they are dissatisfied with the broadcaster’s consideration of the complaint).

4.- Where the outline procedures refer to “a/the Case Leader” it means a Programme Executive employed in Ofcom’s Content and Standards department that has been assigned to a particular case.

5.- Where the outline procedures refer to “the Executive” it means any relevant member/s of staff employed in Ofcom’s Content and Standards department.

6.- In addition to the working days given for responses, two further working days will be added to all deadlines referred to in these procedures for postal receipt.

7.- This does not apply to Entertainment Decisions .

8.- This does not apply to cases referred to the Fairness Committee for review, since these decisions are final.

9.- Under section 119 of the Broadcasting Act 1996 (as amended by the Communications Act 2003) Ofcom may also give directions to a broadcaster to publish a summary of its adjudication in an appropriate publication.



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