Rushanara Ali, Labour MP for Bethnal Green and Bow (see photo), featured in this Bulletin. Ms Ali was the subject of a four and half minute report broadcast on 29 April 2017 on Bangla TV, which referred to her in glowing terms and was in Ofcom’s words “overwhelmingly supportive” of her candidacy in the forthcoming General Election and the Labour Party more widely, while also being critical of the Conservative Government. The report was preceded by some limited references to Theresa May, Tim Farron (the then leader of the Lib Dems) and to Nicola Sturgeon, the SNP Leader. These references however were not enough to provide due impartiality.

Ofcom assessed the report against Rule 5.1 (news must be duly accurate and impartial) and not the election rules in Section Six. This was because it was broadcast just before the election period started for the 8 June 2017 General Election.

In the same Bulletin another channel which focusses on an ethnic minority audience (the cable service Channel 44, broadcasting in Urdu) was found to breach Section Six. On 8 June the  service transmitted various reports including comments on the General Election poll that day e.g. a Labour Party supporter who stated that  “[The Labour Party’s] policies are very good. They have promised to abolish higher education fees and they have also said that they would write off [student loan debts]. These are very attractive policies for young people like myself”. This was in clear breach of Rule 6.4 which bans all “discussion and analysis of election” issues while polls are open.

These contraventions of the Code underline how some licensees still seem unfamiliar with the some basic provisions of the Code. Channel 44 told Ofcom (very wisely) that “its reporters would be required to complete training on election reporting before being permitted to report on elections in future.”

Another decision I found interesting was the not in breach privacy finding against the BBC3 for the documentary entitled How Police Missed the Grindr Killer. This was about Stephen Port, who was convicted in 2016 for “date-raping” and murdering four young gay men in London within 15 months of each other. It featured a montage of images from a gay website including four unobscured photographs of the complainant (Mr G). These were shown for approximately three seconds. Mr G did not by all accounts watch the programme when broadcast but complained about it only after accessing the documentary via the BBC’s on demand service on 10 May 2017. Ofcom (rightly in my view) found that Mr G did not have a legitimate expectation of privacy about the photographs being included in the programme because they were in the public domain, having been posted there by Mr G to advertise his services and show potential clients  what he looked like.

On these particular facts, Ofcom found the complainant did not have an expectation of privacy. But the regulator (importantly) pointed out that “photographs of a person may be personal and private…and therefore, in some circumstances, that person may have a legitimate expectation of privacy in relation to those photographs. Further, it is our view that people are not necessarily deprived of their right to privacy if information or images, in respect of which they claim that right, have been put into the public domain in the past.” In other words – just because a photo of a person has been made public at some point in the past that person does not lose his or her expectation of privacy in that photo for ever afterwards.

In this case Mr G removed his photos from the website after 10 May 2017. This undoubtedly prompted Ofcom to remind broadcasters that they “should periodically review their justification for including potentially personal or private information about people in programmes to ensure the ongoing accessibility of that information does not unwarrantably infringe a person’s privacy.” To note: if a particular programme does not breach Ofcom’s privacy rules when first broadcast, this does not mean that it will continue to do automatically at all times when broadcast or made available on demand later.

One final comment on this Bulletin: broadcasters MUST once a year file details of their relevant turnover with Ofcom in a timely way. If they do not, they face a statutory sanction, which may include licence revocation. This is the fate now facing Prime Bangla Limited, Global Tamil Vision Limited, and Pakistan Television Corporation Limited for three of their services. Busy broadcasters may be tempted to ignore those reminder letters from Ofcom. Don’t.