10 THINGS EVERY TV BROADCASTER MUST KNOW

And they are… wait for it…

…the 10 Sections of the OFCOM CODE

 (not exactly glamorous, I know… but absolutely vital all the same)

Every broadcast professional – from television news journalist to producer of a sports magazine show – should know about the detail of the Ofcom Code. It’s the set of rules that governs the way commercial broadcasters operate in the UK. When it comes to factual programming for instance, the code states that commercial broadcasters must be impartial when covering politics and social issues, must be accurate, treat people fairly, respect privacy, avoid causing harm and offence and ensure that under-18s are protected from harmful material.

The code also contains guidance that applies to commercial references in television programmes including product placement, sponsorship, advertiser-funded programming and competitions. This information is becoming increasingly important as different business models are used to fund the making of programmes on commercial channels. Broadcasters of these kind of programmes must maintain editorial independence and clearly understand where the boundaries lie.

To find out more about the Ofcom Code and how it affects all broadcasters, visit the regulator’s website which breaks down each section in detail (link below)…

http://stakeholders.ofcom.org.uk/broadcasting/broadcast-codes/broadcast-code/

Or if you’re interested in how the code affects broadcast journalists in particular, read chapter three of McNae’s Essential Law for Journalists (Edition 21 – below), which contains a good summary of broadcast regulation.

The rest of this tutorial outlines the rulings of the Ofcom Code and draws heavily on content from the Ofcom website, which I recommend you click on and have a look around.

But first, a tip for students studying the Ofcom Code as part of the NCTJ diploma. It’s useful to split the 10 sections into five pairs with similar themes; this makes them easier to learn and understand.

1)    Protecting Under-18s & Harm and Offence

2)    Crime & Religion

3)    Due Impartiality and Due Accuracy and Undue Prominence of Views and Opinions & Elections and Referendums

4)    Fairness & Privacy

5)    Commercial References in Television Programmes & Commercial Communications in Radio Programmes

Now it’s time to look at each of these sections in more detail. In fact, there’s lots and lots of detail to take in, but it’s important that aspiring broadcast professionals have a good understanding of the concepts involved. It will make you a safe pair of hands in the workplace.

Section One: Protecting Under-18s

This section, quite simply, protects under-18s from harmful content on television and radio. It states: ‘Material that might seriously impair the physical, mental or moral development of people under 18 must not be broadcast’.

It adds:

• Children must be protected from damaging material by appropriate scheduling (children in this case means under-15s)
• Television broadcasters must observe the watershed, which means programmes unsuitable for children should not be seen before 9pm or after 5.30am
• Radio broadcasters should be aware of what’s being heard when children are reasonably expected to be listening: the school run and breakfast time, for instance
• For pre-watershed broadcasts, clear guidance should, if appropriate, be given about content that might distress children (news presenters can warn if footage about to be shown includes violence, for instance)
• The transition to more adult material should not be abrupt at the time of the watershed. Stronger material should appear later in the schedule
• Broadcasters should be careful about identifying under-18s who may be the victim of a sexual crime (for example, describing an offence as incest)
• They should also protect someone under-18 who may be a witness or victim of a crime
• References to drugs, smoking and alcohol abuse should not be made in programmes aimed primarily at children unless there is a strong editorial justification for doing so
• Drugs, smoking and alcohol abuse must not be condoned, encouraged or glamorised in programmes broadcast before the watershed
• Rules also limit the pre-watershed use of offensive language and the portrayal and discussion of sexual behaviour
• Violence and its after-effects must be ‘appropriately limited’ in pre-watershed programmes and be justified by context
• Violence, verbal or physical, that can be easily imitated by children must not be seen in programmes aimed at children, or in programmes screened before the watershed, unless there is strong editorial justification to do so

Offensive language and sexual material

• The most offensive language must not be broadcast before the watershed
• Offensive language must not be heard in programmes aimed at younger children unless in the most exceptional of circumstances
• Offensive language must not be broadcast before the watershed or when children are likely to be listening on radio unless it is justified by context. But frequent use of such language must be avoided before the watershed
• Adult sexual material (material that contains images and/or language of a strong sexual nature that is broadcast primarily for the purpose of sexual arousal or stimulation) must not be broadcast at any time other than between 10pm and 5.30am on designated channels including subscription
• Broadcasters must ensure that material broadcast post-watershed that contains language and images of a strong sexual nature must be justified by context
• Representations of sexual intercourse must not be screened pre-watershed or when children would be listening on radio unless there is a serious educational purpose
• Discussion of sexual behaviour must be editorially justified if included pre-watershed and must be appropriately limited
• Nudity before the watershed must be justified by context

Demonstrations of exorcisms, occult practices and the paranormal (which claim to be real) must not be shown pre-watershed or when children would be listening. Paranormal practices for entertainment purposes must not be broadcast when children would be watching or listening (but this rule does not apply to drama, film or comedy).

Broadcasters must also take care of under-18s who are involved in the production of programmes, irrespective of any consent that they or their parents may have given. They must not be caused unnecessary distress or anxiety as a result of taking part in the programme.

Prizes aimed at children must be appropriate to the age range and not too old for them.

Section Two: Harm and Offence

This section builds on the themes of Section One and states that ‘generally accepted’ standards should be applied to the content seen and heard on television and radio. Members of the public should be protected from harmful and offensive material, unless it can be justified by context.

Meaning of context

Context here can mean the following: the editorial content of the programme, the time of the broadcast, on which channel it is shown, what other programmes are shown before and afterwards, the degree of harm and offence likely to be caused, the likely size and composition of the audience and their likely expectations, the effect of the content on viewers and listeners who may find it by accident.

The section states the following:

• Factual programmes or items or portrayals of factual matters must not mislead the audience
• Material which may cause offence must be justified by context. This may include offensive language, violence, sex, sexual violence, humiliation, distress, violation of human dignity, etc. Appropriate language should be broadcast where it would assist in avoiding or minimising offence
• Content should not condone or glamorise violent, dangerous or anti-social behaviour
• Methods of suicide and self-harm must not be included in programmes except when they are editorially justified and justified by context
• Demonstrations of exorcism, occult or the paranormal that claim to be real should be treated objectively
• If there are demonstrations of the above for entertainment purposes, this should be made clear to viewers and listeners
• Demonstrations of the above – if claiming to be real or for entertainment purposes – must not contain life-changing advice aimed at individuals (religious programmes are exempt from this but must comply with Section Four of the code; films, drama and fiction are generally not bound by this rule)
• During demonstrations of hypnotic techniques, broadcasters must act responsibly to avoid detrimental effects on viewers and listeners
• Reconstructions in news and factual programmes should be clearly signalled to avoid viewers thinking they are watching the real thing
• Broadcasters must be aware of viewers with photosensitive epilepsy and offer warnings in advance if flash photography

Competitions

• Competitions must be run fairly, with clearly drawn up rules that are appropriately known. In particular, significant conditions that may affect a viewer’s chance to take part must be made clear (closing date for entries etc)
• Competition prizes must be described accurately

Section Three: Crime

The main principle behind this section is to prevent content being screened that could encourage or incite a crime to be committed or lead to disorder.

It covers these points:

• Content likely to encourage or incite a crime being committed or to lead to disorder must not be included in television or radio services
• Descriptions or demonstrations of criminal techniques that offer details which could be copied by a viewer must not be broadcast unless editorially justified
• No payment, promise of payment, or payment in kind may be made to a convicted or confessed criminal for a programme contribution unless in the public interest
• When criminal proceedings are active, no payment or promise of payment may be made to a witness or somebody likely to be called up as a witness. Nor should any payment be made dependent on the outcome of a trial. Only actual expenditure or lack of earnings during filming may be reimbursed
• When criminal proceedings are likely and foreseeable, payments should not be made to people likely to be witnesses unless there is a clear public interest reason to do so, such as investigating crime or corruption and this is the only way to get the information. This payment should be disclosed to both defence and prosecution should the case become active
• Broadcasters must not screen footage that could detrimentally affect the success of dealing with a hijack or kidnapping.

Section Four: Religion

This section aims to ensure that broadcasters act responsibly with the content of religious programmes. Vulnerabilities of the audience should not be exploited by such a programme, and broadcasters should ensure that it does not abuse the religious views and beliefs of those belonging to a particular religion or denomination.

The section states:

• Broadcasters must show the proper degree or responsibility when dealing with the content of religious programmes
• The religious views and beliefs of those belonging to a particular religion or denomination must not be abused
• If a particular religion is the subject of a programme, this should be made clear to the audience
• Religious programmes must not seek to secretly promote religious views
• Religious programmes must not recruit members or exploit the susceptibility of the audience
• Claims that certain people or groups possess special powers must be treated objectively.

Section Five: Due Impartiality and Due Accuracy and Undue Prominence of Views and Opinions

This section has one core principle: to ensure that news is reported with due accuracy and presented with due impartiality. It aims to ensure that the special impartiality requirements of the Communications Act 2003 are adhered to.

The section explains:

• News, in whatever form, should be reported with due accuracy and presented with due impartiality
• Significant mistakes in news should normally be acknowledged and quickly corrected on air. Corrections should be appropriately scheduled
• No politician may be used as a newsreader or reporter in a news programme unless on the rare occasion it is editorially justified (in that case, the political allegiance of the person should be made clear)

Special impartiality requirements: news and other programmes

• Owners of broadcast organisations must not use their companies to express their personal views and opinions on matters of political or industrial controversy (which means political and industrial issues currently under debate), or matters relating to current public policy (which means national and local government policy, etc)
• Broadcasters must ensure due impartiality on matters of political and industrial controversy (this can be achieved in one programme or in a series of programmes as a whole)
• The same goes for matters relating to current public policy
• Views and facts must not be misrepresented
• Any personal interest of a reporter or presenter which may call into question the due impartiality of the programme must be made clear to the audience
• Presenters and reporters (with the exception of presenters in news programmes) can present their views in ‘authored’ or ‘personal view’ programmes. But alternative views must be included in some way, and presenters must not use the fact that they are regularly on television to promote their personal views and compromise due impartiality
• The fact that it is a ‘personal view’ or ‘authored’ programme must be made clear to the audience at the outset – this is a minimum requirement (personality phone-in hosts on radio are exempt from this unless their personal view is unclear)
• When dealing with matters of major political and industrial controversy etc, an appropriately wide range of views must be included and given due weight. Views and facts must not be misrepresented
• Broadcasters should not give undue prominence to the views and opinions of a particular person or group when dealing with matters of political and industrial controversy and matters of current public policy

Section Six: Elections and Referendums

This section ensures that special impartiality requirements that are outlined in the Communications Act 2003 on broadcasting elections and referendums are carried out. It should be noted that the principles of Section Five about matters of political and industrial controversy and matters relating to current public policy are also relevant at election time.

This section states:

• Due weight must be given to the coverage of major parties during the election period. Broadcasters must also consider giving appropriate coverage to other parties and independent candidates
• Due weight must be given to the coverage of political organisations during the election period
• Discussion and analysis of election and referendum issues must finish when polling stations open
• Broadcasters may not publish the results of an opinion poll on polling day itself until the election or referendum poll closes
• Candidates in UK elections must not act as news presenters, interviewers, or presenters of any type of programme during the election period
• Appearances in non-political programmes scheduled for before the election period may continue
• Due impartiality must be maintained in an election report or discussion
• If a candidate takes part in an item about their electoral area, then all candidates should be invited to contribute. If they cannot, the item should still go ahead
• Any report after the close of nominations must include a list of all candidates standing (first name, surname, political group). For radio, if the report is repeated many times during the same day, just read the list the first time, then refer listeners to the website for more details
• When a candidate is taking part in a programme on any matter, they must not be allowed to make political points about their constituency if other candidates are not given a similar opportunity to do so

Section Seven: Fairness

Sections seven and eight are different to the others because they are about how broadcasters treat people taking part in a programme, not how it affects viewers watching at home. This section contains not only rulings, but also practices to be followed by broadcasters when dealing with people or organisations.

The principle behind the section is to ensure that broadcasters avoid unjust or unfair treatment of an individual (or organisation) who appears in a programme.

Practices to be followed

Broadcasters and programme-makers should be fair in their dealings with potential contributors to a programme, unless justified to do otherwise. Contributors should agree to take part based on ‘informed consent’, which means they should know the following:

• The nature and purpose of the programme, what the programme is about and why they’ve been asked to contribute
• Where and when the film will be broadcast
• What kind of contribution they’re expected to make (pre-recorded, live, interview, discussion, edited, unedited)
• The areas of questioning (note: no need to give exact questions)
• Any significant changes to the programme as it develops that might reasonably affect their original consent and could cause unfairness
• Their contractual rights and obligations and those of the programme-maker
• If they have an opportunity to preview the programme, clear guidance should be given on whether or not they can make changes to the programme (note: they don’t have a right to make changes unless it is agreed with the broadcaster in advance)

Note: it may be fair for broadcasters to ignore all or some of the above practices if they feel justified to do so.

• If a contributor is under-16, consent should normally be obtained from a parent or guardian
• Someone under-16 should not be asked for views on matters expected to be beyond their knowledge and capacity without that consent
• Contributions should be edited fairly
• Guarantees given to contributors about confidentiality or anonymity should normally be honoured
• Broadcasters should ensure that if contributions are re-edited for projects in the future, contributors should be treated fairly. This also applies to material acquired from outside sources
• For factual programmes – including ones looking at past events – broadcasters must be sure the facts are presented in a fair way, and individuals singled out for particular attention in the narrative are offered the chance to take part and give their opinion
• Factual dramas should portray facts, people or organisations in a fair light
• If a programme alleges wrongdoing or incompetence, etc, the subject of the allegation should be given an appropriate opportunity to respond
• If someone refuses to comment, the broadcaster should make it clear that the individual chose not to take part and include an explanation of why (if it is fair to do so)

Deception and ‘wind-up’ calls

Broadcasters should not obtain content or an agreement to contribute through deception, unless it is in the public interest to do so and the information cannot reasonably be obtained any other way.

For ‘wind-up’ calls or entertainment set-ups, consent should be obtained before the material is broadcast.

If an individual or group is not identifiable, then consent is not required, and while footage of celebrities or those in the public eye doesn’t need consent prior to broadcast, producers may need a public interest reason if the material results in ridicule or personal distress.

Section Eight: Privacy

Like the section before, Section Eight focuses on people and organisations that are directly affected by the programme-making process. The code offers practices for broadcasters to follow which aim to avoid the unwarranted infringement of privacy in programmes and in the obtaining of footage to be shown in them.

The Broadcasting Act of 1996 requires Ofcom to consider complaints about infringement of privacy. When filming at the scene of an emergency incident for instance, this may call for difficult decisions on the ground about what would constitute an invasion of privacy and what is allowed in the pursuit of a breaking news story. There is, of course, a strong public interest in covering a story like this and a pressure on broadcasters to get interviews and footage to tell the story properly. Ofcom will take this into account when adjudicating on complaints.

• Any infringement of privacy in programmes and in obtaining footage for programmes must be warranted

Practices to be followed

• Information that discloses the location of a person’s home or family should not be revealed (unless warranted)
• When someone is inadvertently caught up in the events of a news story they are entitled to privacy in both the making and broadcast of a programme, unless it is warranted to do otherwise. This also applies to later stories that revisit the news event
• Broadcasters should ensure that content filmed in or broadcast from a public place is not so private that prior consent is required from the individual or organisation involved
• If the broadcast of a programme would infringe privacy, consent should be obtained before broadcast (unless warranted)
• Callers to a phone-in are believed to have given consent to the broadcast of their contribution
• If an individual or organisation’s privacy is being infringed, and they ask that filming is stopped, the broadcaster should do so unless it is warranted to continue
• When filming at institutions, organisations or agencies, permission should be obtained from these bodies unless it is warranted to film without permission
• Permission of people in the background whose appearance is incidental is not normally required
• When recording in ambulances, hospitals, schools, prisons or police stations, permission should be obtained from those being filmed in sensitive situations, unless permission is not warranted. If the individual is not identified then permission is not required
• If footage is reused for a different programme or purpose, broadcasters must ensure no infringement of privacy takes place. This applies to both the broadcaster’s own content and footage acquired from other sources
• Doorstepping for factual programmes should not take place unless a request for an interview has been refused or it has not been possible to request an interview, or if there is good reason to believe the investigation would be hampered if the subject was approached in the open
• Broadcasters will, without prior permission, interview and film people in public places who are in the news
• A broadcaster can record phone calls if they establish from the start their identity, why they have called, and that the call has been recorded for possible broadcast. If it’s established that a phone call has been recorded without permission, then permission should be obtained before it is aired unless it is warranted not to do so

Surreptitious – or secret – filming is only used when it is warranted, which is when:

• There is evidence that the story is in the public interest
• There are reasonable grounds to suspect that more evidence can be obtained
• It is necessary for the credibility and authenticity of the programme

Material gathered through secret filming is only shown if warranted.

Content acquired surreptitiously for entertainment purposes can be shown if it is intrinsic to the entertainment of the programme and can be shown to not represent a significant infringement of privacy (which means in this case that it does not cause significant distress, annoyance or embarrassment). The material should not be broadcast without the consent of those involved, but if those featured are not identifiable in the programme, then consent for broadcast is not required.

Suffering and distress

• Broadcasters should not take or broadcast footage of people caught up in emergencies, victims of accidents, or those suffering a personal tragedy, even in a public place, where it results in an infringement of privacy, unless it is warranted to do so (i.e. the public interest value of the story) or the people have given consent
• People in a state of distress should not be put under pressure to appear in a programme or provide interviews unless it is warranted to do so (public interest value of the story)
• Broadcasters should be careful not to identify someone who has died, or the victims of accidents or violent crime, unless and until the next of kin has been informed or unless it is warranted to do so (public interest value)
• Broadcasters should try to reduce the potential distress to victims and/or relatives when making or broadcasting programmes examining past events that include trauma to individuals (crime documentaries, for instance) unless it is warranted to do so. This applies to dramatic reconstructions, factual dramas and factual programmes.
• If possible, surviving victims and families of those whose traumatic experience is the subject of the programme should be informed about when it will be screened etc, even if the events or material to be broadcast have been in the public domain (though in reality this may be difficult to achieve)

Under-16s and vulnerable people

Broadcasters should pay particular attention to the privacy of people under 16. They do not lose their right to privacy because of fame or their involvement in public events. When someone under 16 or a vulnerable person has lost their privacy, consent must be obtained from:

• A parent or guardian
• The person concerned (if possible)

Under-16s and vulnerable people should not be questioned about private matters without the consent of the parent or guardian.

The final two sections of the Ofcom Code will be covered in the next tutorial. They deal with commercial references in television and radio programmes:

Section Nine: Commercial References in Television Programmes

Section Ten: Commercial Communications in Radio Programmes

Phew! Finished at last…