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Guidelines for the handling of standards complaints and cases (in programmes and sponsorship)

Introduction

1. This document outlines the procedures to be followed by Ofcom in the handling of all standards complaints and cases (i.e. Ofcom initiated investigations) in programmes, advertising and sponsorship (in both radio and television services). Separate guidelines exist for the handling of fairness and privacy complaints. It has been drawn up in the light of the requirements of the European Convention of Human Rights (which refers to the 'right to a fair trial’) and is effective from 5 April 2004.

2. These guidelines deal only with complaints and investigations up to the point where a statutory sanction may, where appropriate, be considered. There are separate guidelines concerning statutory sanctions (Outline Procedures for Sanctions in content cases i.e. sanctions as prescribed under the Communications Act 2003 and the Broadcasting Acts 1990 and 1996 as amended).

3. Ofcom inherited its Programme and Advertising Codes from the legacy regulators and is applying them transitionally pending the drafting of new Codes. In particular, the Broadcasting Standards Commission’s Standards Code will continue to apply transitionally in respect of BBC/S4C programmes. For the avoidance of doubt, where a 'breach' of a Code or Codes is referred to in this document, this should also be interpreted to include a ‘contravention’ of the BSC Code, as appropriate.

4. The Communications Act 2003 requires Ofcom to establish procedures for the handling and resolution of complaints. It is also Ofcom’s regulatory duty to set out in its Codes such content standards as it thinks will best secure the standards objectives set out in the Communications Act. Ofcom’s licensees are obliged under their licences, and the BBC and S4C (on some matters) are obliged, under the Agreement, to adhere to the provisions of Ofcom’s Codes (including Codes on advertising; programme standards; fairness and privacy; and sponsorship). Ofcom may therefore raise issues about potential Code breaches with broadcasters as well as investigate appropriate complaints which raise issues concerning compliance with Ofcom’s Codes. The procedures in a complaint led investigation and an Ofcom initiated investigation are the same.

Form of complaints

5. Ofcom will publicise on its website contact details of all broadcasters. Complainants are encouraged to contact the broadcaster first. However, if the complainant wishes the complaint to be considered by Ofcom, Ofcom will consider the complaint. It should be noted however, that if a complainant raises evidence that there is an issue for the broadcaster to answer then Ofcom must investigate the case.

6. The details of the complaint (time; channel; programme/advertisement; nature of the complaint etc) will be logged by the Contact Centre. Complaints must be made within a reasonable time because broadcasters are only required to keep recordings for, in the case of radio, 42 days after the relevant broadcast, for television 90 days after the relevant broadcast except satellite and cable, in which case the time limit for retention is 60 days after the relevant broadcast. Each complaint will be acknowledged and the complainant will be given a reference number. All complainants will receive a response, even if their complaint does not require further investigation or does not fall within Ofcom’s regulatory remit.

Assessment of complaint

7. An initial assessment of the complaint is made. If it is decided that the complaint does not raise issues that warrant further investigation, then Ofcom’s Contact Centre will write to the complainant explaining that there has been no breach of the Code.

Complaints with investigations

8. If it is considered that a complaint raises issues that warrant further consideration, then the complaint is passed to a case officer who will be responsible for investigating the complaint in consultation with colleagues.

9. If necessary, Ofcom may request a copy of the material (programme, advertisement or sponsorship) from the broadcaster. However no written response from the broadcaster is expected at this stage. Broadcasters should normally deliver copies of the material in question within five working days of a request being made.

10. Where complaints are made in relation to advertising, it is possible at this stage and in exceptional circumstances, for Ofcom to direct a broadcaster (or broadcasters) to withdraw such advertising immediately until an investigation is completed. Such a direction will only be made where Ofcom believes that there is prima facie evidence that there is a serious breach of the Advertising Code. Before any such direction is made, it must be referred for approval to a senior member of the executive (such as the Head of Standards or a Partner).

11. Once a copy of the relevant programme or advertising material has been considered, the case officer may decide, in consultation with colleagues, that no breach has occurred. If so, the case officer will reply to the complainant and, where appropriate, the relevant broadcaster or clearance centre explaining that the Code has not been breached. The complaint is then closed.

12. Where the case officer believes, in consultation with colleagues, that a breach of the Code may have occurred s/he should inform the broadcaster or clearance centre and request a written response. The case officer should normally enclose a copy of the letter or record of complaint including the name and address of the complainant. However, in exceptional cases, Ofcom will consider a complaint made by someone who wishes to remain anonymous. Exceptions may also be made with the broadcaster’s or clearance centre’s agreement, where large numbers of similar complaints are involved. A complainant’s identity may only be disclosed to those with a direct interest in the matter complained of.

13. The case officer should explain to the broadcaster or clearance centre which part of the Code he or she considers relevant. The case officer may also wish to raise other issues outside those that have been raised by the complainant. This should be made clear to the broadcaster or clearance centre. A response to Ofcom should normally be received within 10 working days (however, particularly complicated investigations or circumstances may dictate otherwise).

14. If requested, Ofcom should also supply to a complainant the broadcaster’s or clearance centre’s response. However, Ofcom reserves the right to remove any confidential, market sensitive or legally privileged material which may have been supplied to Ofcom, if requested by the broadcaster or the complainant, in the course of its investigation.

15. Once a case officer has completed his/her correspondence with a broadcaster or clearance centre, s/he may decide, in consultation with colleagues, that no breach has occurred. If so, the case officer will reply to the complainant and relevant broadcaster or clearance centre explaining that there has been no breach of the Code. The complaint is then closed.

16. If, in consultation with colleagues, a case officer believes that a breach of the Code has occurred, s/he must refer the case for independent assessment to the line manager. The manager must have all the relevant documentation to consider (the recording and/or script, correspondence and any other information the case officer has relied on in reaching his or her decision).

17. The manager may consider that no breach of the Code has occurred. If so, the complainant and broadcaster or clearance centre should be informed by the case officer. The complaint is then closed.

18. If the manager considers that a breach has occurred (but no further action, such as a sanction, is appropriate) then he or she will write to the broadcaster or clearance centre informing them of the intervention and its forthcoming publication in Ofcom’s Programmes Complaints Bulletin or Advertising Complaints Bulletin. The broadcaster or clearance centre will have the opportunity to comment on factual errors, omissions and on the presentation of their case in a draft summary of the finding before publication. The complainant(s) will be informed, at the same time as publication, of the outcome by the case officer and the complaint will be closed.

19. It is possible that certain complaints can be satisfactorily 'resolved' without the necessity for formal intervention (or, in the case of an advertisement, a decision can be taken that ‘no further action is necessary’). Such circumstances are limited but might exist where a broadcaster has taken immediate and appropriate action and remedied the problem. A 'complaint resolved/no further action is necessary' is at Ofcom’s discretion.

Sanctions

20. Where the manager concludes that a sanction may be warranted, s/he will inform the broadcaster and the procedures in the Outline Procedures for Sanctions in Content Cases will apply from this point. Ofcom can impose a number of possible sanctions if it feels the conditions of its licences and/or Codes have been frequently, deliberately or seriously breached. It can direct a broadcaster not to repeat material; direct a broadcaster to publish a correction or summary of a finding or adjudication; fine a broadcaster; and, with the exception of the BBC, Channel 4 and S4C, shorten or revoke a licence.

Appeals

21. Broadcasters, clearance centres or complainants may, on occasion, be dissatisfied with the outcome of Ofcom’s decisions. Under these circumstances, Ofcom will normally offer an internal appeals process.

22. The request for an appeal must be made within a reasonable time (normally within three working days of receiving Ofcom’s decision). Whether an appeal is permitted will be at Ofcom’s discretion. In the case of a broadcaster or clearance centre, the request should be made with the stated agreement of the Chairman, Chief Executive or designated alternative.

23. The complainant, broadcaster or clearance centre should provide a full written statement of the grounds for appeal and send this to Ofcom within ten working days after the request for an appeal. In exceptional circumstances we may receive the appeal verbally and record it for the complainant.

24. The appeal will be considered by a person who has had no involvement in the case and is in a more senior position than the original ‘decision-maker’. The person will have before him or her all the relevant material (recording and/or script, correspondence and any other information examined).

25. If an appeal is unsuccessful, a further appeal at a more senior level within Ofcom may be requested with the stated agreement of the Chairman, Chief Executive or designated deputy of the broadcaster or clearance centre. This will normally be granted, although Ofcom reserves the right to refuse further appeals. The conditions for the second appeal are the same as for the first.

26. If both appeals are unsuccessful, broadcasters or clearance centres who wish to request a further appeal may write to the Chairman of the Content Board (with the stated agreement of the Chairman, Chief Executive or designated deputy) requesting that the matter be put forward to the Content Board or sub-committee of the Content Board. The deadlines for notification of appeals and submission of grounds of appeal are again normally at the end of the third and tenth working day respectively after the receipt of the decision being appealed. The Chairman of the Content Board, or designated deputy, will decide whether to grant a further appeal or not. An appeal will normally be conducted by the Content Board. The decision of the Chairman or the Content Board is final.

27. It must be noted that these procedures are not part of the standard decision-making process on complaints and case investigations. These are appeal procedures providing for retrospective appeal of decisions which have already been taken. If the original decision being appealed involves a programme or part of a programme, an advertisement or sponsorship material being taken off air, Ofcom may require that it remain off air while the appeal is taking place.

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