2023: Ofcom’s 20th birthday and time to review the Broadcasting Code

Observers have not fully appreciated the significance to Ofcom of Kevin Bakhurst, Ofcom’s Group Director of Broadcasting and Online Content (pictured), leaving the regulator to become Director-General of Ireland’s public service broadcaster, RTE. What should be the main priority for his successor? Trevor Barnes, who was appointed Ofcom’s Director of Broadcasting and Spectrum Law when the regulator was established in 2003 and is now a Consultant with SMB, explains why it should be a comprehensive review of the Broadcasting Code – the first for twenty years.

Kevin Bakhurst is now on six months’ gardening leave, but his resignation at the end of April 2023 has triggered heated speculation in Ofcom about his successor.

Some internal candidates for the role (base salary of £256,000 in 2022) will probably apply for the role. But almost certainly the Chief Executive, Dame Melanie Dawes, will be aiming to recruit someone from outside with practical and very senior editorial experience in broadcasting to match that of Bakhurst, to ensure Ofcom has continued credibility in this area with TV and radio services.

Bakhurst’s departure coincided with his job being shorn of important responsibilities: overseeing Ofcom’s move to regulate online content. This senior management work has since April this year been entrusted to the newly appointed Group Director of Online Safety, former Google Executive Gill Whitehead (pictured).

So with the focus of Bakhurst’s successor back on broadcasting, what should his or her priority be?

The end of this year will be Ofcom’s twentieth birthday: the anniversary of its formal creation as the UK’s converged media regulator. I was proud to work at Ofcom as a founding Legal Director when that happened. And July 2023 will mark the nineteenth anniversary of the publication for consultation of the draft Broadcasting Code. The Code came into effect in July 2005. It inevitably reflected that historical moment.

Since then the landscapes of British broadcasting, regulation, politics and society have evolved dramatically. Just think for example of the changes to the structure of ITV, the launch of news channels GB News and Talk TV, the creation and demise of the BBC Trust, product placement being permitted, the upheaval of Brexit and the rise of social media – and that is just a handful of the changes.

Ofcom has responded to these changes over the years by altering the Code in a piecemeal way. Some were in response to legal changes eg the introduction of product placement rules in Section Nine. Some were in response to awareness of the need to counter new types of harm – such as adding new rules to Section Two to deal with the broadcast competition scandal and to Section Three to deal more adroitly with the threats posed by hate speech and encouraging terrorism. Some were reactions to controversies in the media – like the new duty of care imposed on broadcasters to take care of contributors at risk of significant harm (see Practice 7.15). New rules have been added and some amended. The Broadcasting Code has grown and grown.

The online Guidance that accompanies the Code has lengthened correspondingly. Some of it is helpful. Some so vague (deliberately to give Ofcom wiggle room when applying the Code), it provides little assistance to broadcasters. In June of 2022, Ofcom announced it planned to review the Guidance. But nothing has happened since.

It is time for Ofcom to grasp the regulatory nettle and conduct a public consultation to review the Broadcasting Code as required by the Communications Act 2003 to ensure it is fit for purpose for the decades ahead. Can the Code be shortened? Can it be simplified? Can the language be clarified? Ofcom has never – or not in recent years – for example, investigated broadcasters under certain specific rules. Examples are Rules 2.6 to 2.9 inclusive focussing on exorcism and hypnotism, Rules 4.3 to 4.5 about religion, and several Rules in Section Five (due impartiality).

In many cases there are general rules in each section of the Code which are apt to cover the specific problems set out at length (and often unnecessarily) in particular rules, or practices (in the case of Sections Seven and Eight). With the number of specific rules culled, any particular harms or issues could then be set out in revamped Guidance.

The response of some at Ofcom will no doubt be: “If it ain’t broke, don’t fix it”. Indeed the Broadcasting Code ain’t broke. But after eighteen years it does need a comprehensive review to confirm whether it is still fully fit for purpose or does need fixing in certain respects. Kevin Bakhurst’s successor should not duck the challenge.