The U.K. Ofcom Broadcasting Code- Explained

• Today with the plethora of entertainment being consumed via different platforms ranging from Netflix to Youtube and Facebook, this Code is very much alive and needs to be complied with to prevent infringement and being pulled up or reported about. With the UK and Brexit, a lot of the Ofcom regulations have been updated for 2021.
• Ofcom (Office of Communication) the broadcasting worlds regulatory body, came into existence in January 2003, set up by the Office of Communications Act 2002. Its primary duties were to-
  1. Ensure a wide range of TV and radio services of high quality and wide appeal.
  2. Maintain plurality in the provision of broadcasting.
  3. Apply adequate protection for audiences against offensive or harmful material.
  4. Apply adequate protection for audiences against unfairness or the infringement of privacy.
• Ofcom regulates most content on television (excluding content broadcast during a commercial break) and UK video on-demand services. The main code applying to the content of television programmes and on-demand content which broadcasters must comply with is the Ofcom Broadcasting Code. Accordingly, independent production companies and programme-makers have contractual obligations to comply with the Code and the Handbook.

So what is in the Ofcom Broadcasting Code?

Ofcom is required by the Communications Act 2003 to draw up a broadcasting code against which it can measure complaints made. This must cover programme standards (minors, impartiality, accuracy, harm, and offence) and fairness and privacy. The Ofcom Broadcasting Code is set out in terms of principles and rules. Broadcasters must ensure that they comply with the rules as set out in the Code.

The Code acknowledges the importance of freedom of expression but points out that with those rights come responsibilities. The Code has 10 key Sections containing Principles and Rules-

(i) Section 1- Protecting the Under-Eighteens

Section 1 of the Code requires broadcasters to protect those under the age of 18 by providing rules on scheduling and content information. Television broadcasters must observe the 21:00 watershed. The watershed does not apply to radio broadcasters, but particular regard must be had to times when children are likely to be listening. Section 1 also curbs, among other things, violence, dangerous behaviour as well as offensive language appearing before the watershed or in an inappropriate context. In addition, Section 1 insists on broadcasters taking care of the physical and emotional welfare of and the dignity of people under 18 who take part in or are involved in programmes.

(ii) Section 2- Harm and Offence

This section outlines standards for broadcast content so as to provide adequate protection for members of the public from harmful and/or offensive material. Section 2 requires broadcasters to apply accepted standards to the content of television and radio services in order to provide adequate protection for the public from the inclusion of harmful and/or offensive material in such services. Programmes must not include material that condones or glamorises violence, dangerous, or anti-social behaviour or is likely to encourage others to copy such behaviour. The rules in this section are designed not only to provide adequate protection for adults but also to protect people under eighteen.

(iii) Section 3- Crime, Disorder, Hatred and Abuse

This section of the Code covers material that is likely to incite crime or disorder, reflecting Ofcom’s duty to prohibit the broadcast of this type of programming. Section 3 requires broadcasters too, among other things, protect members of the public from the inclusion of harmful and/or offensive material, such as offensive language, discriminatory treatment or language, or contents that directly or indirectly amount to a call to criminal action or disorder, abusive or derogatory treatment of individuals, groups, religions, or communities or material promoting or encouraging engagement in terrorism or other forms of criminal activity or disorder and/or hate speech which is likely to encourage criminal activity or lead to disorder.

(iv) Section 4- Religion

This section relates to the responsibility of broadcasters with respect to the content of religious programmes. Section 4 requires broadcasters to exercise a proper degree of responsibility with respect to the content of religious programmes. This section basically states that the religious views and beliefs of those belonging to a particular religion or religious denomination must not be subject to abusive treatment.

(v) Section 5- Due impartiality and due accuracy

This section relates to the concept of due impartiality as it applies to news and other programmes. Section 5 provides for due impartiality and due accuracy and under prominence of views and opinions. The broadcaster must report news, in whatever form, with due accuracy and present them with due impartiality. Any mistake must be acknowledged and corrected immediately. Viewers must be made aware of what they are seeing. If a presenter gives a personal view or makes an authored programme, this must be made clear and alternative viewpoints adequately represented, either in the programme or in a series of programmes.

(vi) Section 6- Elections and referendums

This section covers the special impartiality requirements and other legislation that must be applied at the time of elections and referendums. Section 6 deals with elections and referendums by requiring impartiality to be strictly maintained in constituency reports. In particular, the rules relating to matters of major political or industrial controversy and major matters relating to current public policy, apply to the coverage of elections and referendums. In determining the appropriate level of coverage to be given to parties and independent candidates broadcasters must take into account evidence of past electoral support and/or current support. Broadcasters must also consider giving appropriate coverage to parties and independent candidates with significant views and perspectives.

(vii) Section 7- Fairness

Section 7 requires broadcasters to avoid unjust or unfair treatment of individuals or organisations in programmes. This section and the following section on privacy are different from other sections of the Code. They apply to how broadcasters treat the individuals or organisations directly affected by programmes, rather than what the general public sees and/or hears as viewers and listeners.

(viii) Section 8- Privacy

Section 8 requires broadcasters to avoid any unwarranted infringement of privacy in programmes and in connection with obtaining material included in programmes. Any infringement of privacy should be warranted. This section, like the preceding section, applies 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.

(ix) Section 9- Commercial references on TV

This section relates to broadcasters’ editorial independence and control over programming with a distinction between editorial content and advertising. The BBC, S4C and S4C Digital are not Ofcom licensees and, therefore, not subject to sections 9. However, they are subject to the legislation on listed events and, therefore, the regulations on listed events as set out in the relevant provisions of the Code. Section 9 requires broadcasters to maintain independent editorial control over programming. It also obliges broadcasters to ensure the distinction of editorial content from advertising. It prohibits “surreptitious advertising” which makes reference to a product, service, or trademark within a programme with the intention to advertise without making this clear to the audience. Section 9 provides rules for the sponsorship of television programmes. It provides regulations relating to, among other things, prohibited sponsors and the format and content of the sponsor’s credit.

(x) Section 10- Commercial communications on radio

This section relates to radio broadcast only and is to ensure the transparency of commercial communications as a means to secure consumer protection. Section 10 of the Code contains specific rules for radio broadcasting. The fundamental principle in section 10 is to ensure the transparency of commercial communications as a means to secure consumer protection. Viewers must not be misled. There has to be transparency and editorial independence. Advertising products have to be kept separate from the content of programmes.

We have specialist media solicitors who can help you navigate the complexities of broadcasting in the UK and also get you the required Ofcom licence to broadcast. For expert legal advice, contact help@bizlawuk.co.uk or WhatsApp us on 07583452230. Visit www.bizlawuk.co.uk to find more useful content. If you find this information useful, please like and share it.