Ofcom mystery: are broadcasters behaving better?

The latest Ofcom Broadcast Bulletin (443) has confirmed the trend. The Bulletin has been on a diet. Compared to Bulletins before the pandemic, there have been fewer Standards decisions published – whether breaches of the Broadcasting Code or other rules, or not upholds giving useful tips to broadcasters on where the regulator draws the line in tricky cases. The weight loss has been especially noticeable in 2021. SMB consultant and former Ofcom executive Trevor Barnes asks why and provides an intriguing answer…

The only Ofcom Decision of much interest to media lawyers in the latest Bulletin was on fairness – not to uphold the fairness complaint by the Covid scientist, Susan Michie, against Good Morning Britain. The Professor had been invited on the programme in July 2021 and criticised the move of the government last summer to relax the rules on mask-wearing. As part of the discussion she was asked whether her life long membership of the Communist Party (which had been widely aired in UK newspapers) influenced her views on state intervention. She thought this was unfair but on the facts of the case Ofcom – rightly in my view – rejected the complaint.

The only Standards (as opposed to fairness) decision was on the relatively obscure subject of free charitable appeals – a not in breach determination against a Sikh channel.

So what’s been going on? Have broadcasters stopped behaving badly?

Several broadcasters have told me that it appears Ofcom has been sending out more informal guidance over the past year. This is when Ofcom decides, usually after seeking comments on the case from the licence holder, that the station has not breached the Code but it is not worthwhile publishing a not in breach or resolved decision. (A ‘resolved’ is where there was a breach but in the opinion of Ofcom mitigating action by the broadcaster was sufficient for a breach to be inappropriate.) Instead the regulator writes a letter to the broadcaster giving them some advice – usually along the lines of ‘there was no breach of the Code on this occasion but be careful on this point in future.’

This growth in guidance is because it seems Ofcom took the pragmatic decision after the Covid pandemic began to focus the resources of Standards executives on the complaints and cases where there was a reasonable likelihood that the Code was breached, or the case attracted many complaints and/or had a high profile (think the Piers Morgan/Megan Markle issue – see my previous blogs). The net result overall has been fewer investigations – resource intensive for both Ofcom and the broadcasters concerned – and so fewer decisions published in the Bulletin.

This change of approach was never formally announced – or formalised. But it is welcome. When I was at Ofcom there were quite a few cases which frankly did not merit investigation. There is some evidence – in my opinion – that overall UK broadcasters have become more compliant with the Code in recent years: partly as a result of some hefty fines imposed on errant channels by Ofcom but also because a number are ‘playing safe’ and taking fewer risks.

Ofcom though will need to take care about the amount and nature of informal guidance it issues in the months ahead, now that (hopefully) the UK starts to live with Covid. A central principle of regulation is transparency. Published decisions explain to everyone subject to regulation (and the public) who is being regulated and why. Informal guidance can easily be so vague as to be meaningless and for this reason less than helpful to the recipient. If too common it is also of no use to other broadcasters – because the advice is private.