Ofcom’s high profile consultation proposing to impose a new obligation on all TV and radio broadcasters to take due care of all adults participating in all their programmes (except drama) closes on 23 September. (See my previous blog of 9 August 2019). Many broadcasters have now woken up to the worrying implications of Ofcom’s plans and are working out their response.

What is clear is Ofcom’s proposed two new rules would stretch far beyond any necessary protections for participants in reality TV programmes (like Love Island 2019 winners, Amber Gill and Greg O’Shea – pictured) and create potentially onerous new regulatory burdens on broadcasters whenever an adult participated in a programme – from a news report to a local radio phone in. So how best to balance adequately protecting adults taking part in programmes against the need to make any new regulatory burden on broadcasters proportionate and workable? Here are some ideas.

First about the two new proposed rules. They would apply to all adult participants in all programmes except drama, and would state that (new 2.17): ‘Due care must be taken over the welfare, wellbeing and dignity of participants in programmes.’ And (new 2.18): ‘Participants must not be caused unjustified distress or anxiety by taking part in programmes or by the broadcast of those programmes.’

It is essential to narrow the ambit of the new rules themselves. It is these regulations that Ofcom will apply and judge broadcasters against, not the Guidance. On a plain reading they give the regulator very wide powers – I would argue much too wide – and broadcasters would be very optimistic if they place their trust in the accompanying Guidance to the new 2.17 and 2.18 to ensure Ofcom applies its new powers in a proportionate way.

Two sensible changes might be to define participants more narrowly – as for example ‘potentially vulnerable participants’ – and restrict the range of programming affected. This could be either by excluding more genres of programming (such as news and currents affairs programming, and documentaries), or (better in my view) expressly setting out the limited type of programming to which the new duties would apply. These could be restricted to reality TV like Love Island and broadcasts like The Jeremy Kyle Show where the broadcaster is in control of the format and selects participants deliberately to create tension and pressure – but above all, significantly, the type of programme which led to this consultation in the first place.

Another sensible change could limit the due care duty only to the welfare of participants. ‘Wellbeing’ is very wide and vague; and what does taking ‘due care’ over the ‘dignity’ of all adult participants mean in practice? A further helpful amendment could be to omit the new proposed rule 2.18 altogether. What does it add of substance to the new 2.17 – especially when Ofcom’s and broadcasters’ focus should be on protecting the welfare of potentially vulnerable people, and keeping the new regulatory burden on broadcasters to a necessary minimum?

Turning to the proposed new Guidance – this will be particularly important if Ofcom turns a deaf ear to the fears of broadcasters and refuses to narrow the scope of the new rules. In any event, what is missing is a clear statement at the beginning, underlining very explicitly that the regulator does not wish the rules to impose a disproportionate new burden on broadcasters and will apply them very flexibly, focussing on programming like reality TV and not expecting for example news and current affairs programmes to have elaborate procedures in place to check if due care has been taken of all adults taking part. The current proposed Guidance offers little or no protection to broadcasters against regulatory overreach – especially if the two new proposed rules are not narrowed first.

Instead some of the wording of the proposed Guidance should cause broadcasters real concern. For example: ‘It could be possible for a broadcaster to take comprehensive and appropriate steps to protect the welfare and wellbeing of its participants, only for an unforeseen potential harm to arise for one of them as a result of their participation in a programme. The guidance would make clear that, provided appropriate steps had been taken, these circumstances would not necessarily lead to an automatic [my emphasis added] breach of Rules 2.17 or 2.18.’ This wording in my opinion suggests a regulator predisposed to intervene with little sympathy or understanding of what can reasonably be expected of broadcasters in terms of protecting participants. In my opinion, it should read ‘would not normally lead to a breach of Rules 2.17 or 2.18’.

The legal basis for these new rules is rather dubious (Ofcom has no duty to protect adults similar to that to protect under-eighteens – see s319(2) of the 2003 Communications Act). I doubt though if any broadcaster – or group of broadcasters – will have the appetite to challenge Ofcom about this head on, let alone start a judicial review. Who would risk being pilloried in the media for blocking new rules to protect vulnerable adult participants in programmes like Steve Dymond? And JRs are notoriously difficult to win against a specialist regulator. It is interesting though that nowhere in Ofcom’s legal justification and Regulatory Impact Assessment in Section A.1 of the consultation is section 3(3)(a) of the 2003 Act quoted (Ofcom must have regard in all cases when carrying out its duties to the principles under which its regulatory activities must be ‘proportionate…and targeted only at cases in which action is needed’).

Ofcom seems to rely heavily on section 3(4)(h) of the 2003 Act (Ofcom must have regard to ‘the vulnerability of children and of others whose circumstances appear to OFCOM to put them in need of special protection’.) Indeed. But why one asks are the new rules therefore drafted to oblige broadcasters to protect ALL adults taking part in ALL programmes (except drama), rather than than just those adults who might arguably be in need of ‘special protection’ – that is, potentially vulnerable ones. The new rules should at least reflect more clearly what is supposed to be their legal justification.