The Office of Communications, otherwise known as Ofcom, the body that now regulates the broadcasting industry, has unveiled its new broadcasting code, which came into force on 25 July 2005 (available at www.ofcom.org).

Ofcom has taken over the reigns of regulation from the 'legacy regulators', the Independent Television Commission, the Radio Authority and the Broadcasting Standards Commission, and has reduced the six codes that they operated into a single code with appendices.


This is no mean feat. According to Richard Hooper, the chairman of the Ofcom content board: 'The code is the product of extensive consultation with broadcasters, viewers and listeners and other interested parties. And it is intended to unify and modernise the standards set by the legacy regulators.'


The Communications Act 2003 provided the statutory framework for the code. Section 319(2) sets out the objectives for the code, which in summary are that broadcasters should: protect those under the age of 18; not include material that would encourage or incite crime or disorder; present news with due impartiality and accuracy; exercise a proper degree of respect to religion in programmes; provide adequate protection for the public from material that it would find offensive or harmful; avoid misleading or harmful advertising or that which contravenes the prohibition on political advertising; avoid unsuitable sponsorship of programmes and ensure that here is no undue discrimination between advertisers; and ensure that there is no use of techniques that exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred.


Drafted in light of the Human Rights Act 1998, the code pays particular regard to the rights of freedom of expression and privacy (articles 10 and 8 of the European Convention on Human Rights), the right to freedom of thought, conscience and religion (article 9) and the right to enjoyment of human rights without discrimination on grounds of sex, race and religion (article 14).


It will apply to radio and television content in services licensed by Ofcom, funded by the BBC licence fee, except with regard to sections 5, 6, 9 and 10 of the code, concerning due impartiality, due accuracy and undue prominence of views and opinions; elections and referendums; sponsorship; commercial references (which remain governed by the BBC board of governors) and Sianel Pedwar Cymru.


Richard Hooper's foreword to the code evidences what Ofcom is trying to achieve: 'Audiences expect challenging and creative content, while also wanting [regulating] standards to be maintained and, in particular, children to be protected from unsuitable material.' Additionally, he highlights Ofcom's Parliament-given duty 'to promote media literacy', educating listeners and viewers as to the increased choice available to them at a time of 'rapid change' in what and how audio-visual content is available to most households.


So what does the code say? Given that it runs to nearly 90 pages, not counting the significant guidance notes, it is not feasible to analyse all the sections, but some do bear special consideration.




Children


Section 1, to be read in conjunction with section 2, provides protection of the under-18s, requiring that 'material that might seriously impair the physical, mental or moral development of people under 18 must not be broadcast'. That can include matters relating to drugs, smoking and alcohol, violence and offensive language, sex and nudity.


A 9pm watershed is maintained with regard to the television, while radio broadcasters need to 'have particular regard to times when children are particularly likely to be listening', for example, during the school run or at breakfast time.


The context in which such material is broadcast making it justifiable, will include the nature of the content, the time of the programme and the likely expectation of the audience.




Harm and offence


Seeking to ensure that 'generally accepted standards' are applied to content to provide 'adequate protection' from harmful and/or offensive material - including issues of sex, violence, humiliation, discrimination - section 2 requires that the inclusion of such material must be justified as set out above, by virtue of its context.


The harm and offence test replaces the old 'taste and decency' regulation, putting the bar a little lower and giving greater scope to broadcasters. The guidance notes remind broadcasters that Ofcom publishes complaints bulletins on matters the public have found to be harmful and/or offensive. While they remind broadcasters that 'generally accepted standards will change over time and will also vary according to content', they may prove a useful source of reference material.




Fairness and privacy


Differing from the other sections, sections 7 and 8 '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'. They set out practices that should be followed with regard to obtaining consents, giving an opportunity to contribute, with regard to deception.


But the code makes it clear that following these principles will not automatically ensure that broadcasters are not in breach of the code; nor will failure to comply automatically mean that they are in breach, if that failure does not give rise to unfairness.


The code requires that unfairness and invasions of privacy must be 'warranted': 'Where broadcasters wish to justify an infringement of privacy as warranted, they should be able to demonstrate why in the particular circumstances of the case it is warranted. If the reason is that it is in the public interest, then the broadcaster should be able to demonstrate that the public interest outweighs the right to privacy'. This test also applies to fairness.


On what constitutes a legitimate expectation of privacy, the code warns that there may be such a legitimate expectation even in a public place, which is in line with the European jurisprudence, as evidenced in the case of Von Hannover v Germany (see [2004] Gazette, 15 July, 32).




Sponsorship and commercial references


Sections 9 and 10 relax the rules with regard to sponsorship and commercial references within programmes, provided that any such references are editorially justified and any sponsorship is transparent.


Non-promotional references are allowed provided that they are editorially justified, untying the hands of broadcasters somewhat.


Ofcom's philosophy in setting the code is explained on its Web site: 'We have sought to target regulation where it is required, to be proportionate and consistent and to create regulation which is achievable. We have had regard to our duties to promote choice and competition, to further the interests of citizens-consumers and to support innovation, creativity and investment. As listeners and viewers exercise choice in a digital and multi-channel environment, it is important to allow broadcasters as much freedom of expression as is consistent with the law as well as the flexibility to differentiate between services and enable their audiences to make informed choices.'



Compliance with Ofcom's code is not voluntary and it has a wide range of sanctions, including in cases of serious, deliberate or repeated breaches of the code, a fine or suspension or revocation of the broadcaster's licence. Accordingly, it seems that Ofcom is more real tiger than paper tiger. Just what effect the new code will have on broadcasting standards remains to be seen, as will the extent to which Ofcom will flex its considerable muscles.





By Amber Melville-Brown, David Price Solicitors & Advocates, London