Broadcasting Code Guidance

Despite the turmoil over the UK economy, summer officially ended and autumn began on 23 September. And still no news from Ofcom on an important review affecting all TV and radio broadcasters but which remains shrouded by uncertainty. Trevor Barnes, SMB Consultant and former Ofcom executive, sets out some questions to which broadcasters need answers.

Broadcasters, their compliance teams and media lawyers rely on the official Ofcom Guidance that accompanies the Broadcasting Code as an authoritative source on how the media regulator interprets and applies the Code. So the Guidance is important. And a review of it potentially quite a big deal.

Back on 13 June this year Ofcom revealed that it had already started to review the Guidance and planned this summer to launch a Call for Inputs because the regulator was “keen to hear from broadcasters on how [Ofcom] could update and improve the guidance. Further details will be flagged in the Bulletin and through our Broadcasting email updates.” Click here for more information.

Summer is now over. And since 13 June nothing has been flagged. Instead there has been a resounding silence. Ofcom said it planned to publish its “refreshed guidance” in the “first half of 2023”. That could be as soon as January 2023 – only three months away.

Has Ofcom changed its mind? Has it shelved the review? Has it dropped the Call for Inputs? Or will it go ahead in the autumn? Broadcasters and their advisers deserve a response to these questions. And I suggest – in the interests of transparency – a broad (non-confidential) outline of what broadcasters have said in reply to the 13 June request for how the Guidance could be improved and updated.

As the autumn nights draw in, here are a few ideas – based on my experience as a former TV and radio journalist, and erstwhile Ofcom senior manager who helped to amend the Guidance in the past.

Ofcom should revisit the Guidance as a whole with fresh eyes and aim to shorten it wherever possible. Over the years the Guidance has grown longer and longer as it was freighted with extra advice to reflect additional or amended rules and new sensitivities. These lengthy additions have covered, for example, protection for children (Rules 1.28 and 1.29), broadcast competitions and voting (Rules 2.13 to 2.16), and product placement (Rules 9.6 to 9.14).

Ofcom should look at every sentence and paragraph of the Guidance and ask in late 2022: Does this really need to be said, and at this length? Does it clearly help explain how Ofcom will interpret and apply the Code? Or is it, frankly, waffle?

References to outdated research should be removed. Look at the Guidance to Rules 1.11 to 1.16 by way of illustration. This includes Independent Television Commission (abolished at the end of 2003) research dating back to 1998.

Keep, and update, the sections of the Guidance giving relevant precedents and case studies which show in concrete terms how particular Code Rules have been applied in the past. These help bring the Guidance alive. Also (am I alone?) it is difficult on the Ofcom website or via the Ofcom Bulletin to research quickly past decisions of the regulator on particular Code rules to find precedent cases.

Hopefully Ofcom will publish its intentions and next steps about the Code review Guidance soon. A transparent, comprehensive and rigorous reassessment of the Guidance is overdue.

But, by focussing on the Guidance, Ofcom is in fact missing a different and much more significant opportunity to review broadcasting regulation to make it fit for purpose for the 2020s and beyond. If the regulator is not smart enough to seize this chance proactively in the coming months, the new Culture Secretary, Michelle Donelan, may perhaps spot it instead and put the regulator on the back foot. This opportunity is the subject of a forthcoming blog.