Are the two Channel 4 documentaries containing sexual harassment and assault claims by ten men against Kevin Spacey (pictured above) fair to the actor? Shown on the public service broadcaster on 6 and 7 May, viewers of the programmes called Spacey Unmasked will no doubt have an opinion on this issue.

Spacey himself certainly thinks the broadcasts are unfair to him. He says Channel 4 only gave him seven days before the broadcast to comment on claims by anonymised individuals which cover 50 or so years of his adult life.

Spacey’s lawyers said their client faced “trial by media in relation to new [potentially criminal] allegations without a chance to present his side of the case”. So, a couple of days in advance of the programmes being shown, the actor went on the offensive. He recorded a long interview in which he agreed there were times when he acted in a way that was “inappropriate” but denied sexual harassment or assault. The interview garnered widespread coverage in the media.

Spacey’s interview dominated page 3 of The Sunday Times on 5 May

People or organisations who – like Spacey – believe they have been treated unfairly on TV or radio and their reputation tarnished may decide to sue for defamation (often a high risk and expensive strategy). But they may also make a formal complaint to Ofcom. Note that this ability to complain about being treated unfairly will soon be extended to viewers of bigger video on demand services.

Based on over a decade at Ofcom overseeing fairness and privacy complaints, here are some tips on how to make a successful fairness complaint – or, if you are a broadcaster, how to successully defend yourself.

MAKING A FAIRNESS COMPLAINT

  1. Ensure you are eligible to make a fairness complaint under Section Seven of the Broadcasting Code (or Section Eight if privacy). An obvious point but sometimes neglected. Ofcom set out the conditions on their website. Importantly for example fairness complaints can only be made by someone “affected” by the broadcast, must normally be made within 20 days of broadcast, and it must not seem the complainant has a remedy by way of court proceedings (eg defamation).
  2. Choose your battles. Ofcom entertains (ie investigates) a fair number of the fairness complaints they receive, but very few result in breaches of the Code. This is because in particular Ofcom places a high value on broadcasters’ freedom of expression. It is difficult to win a fairness complaint, especially against an experienced broadcaster, aware of their responsibilities under Section Seven. The State of Qatar for example recently found this out to their cost when their lawyers complained – in vain – to Ofcom about an ITV documentary on allegations of human rights and other abuses in the country.

Qatar loses fairness complaint against ITV

3. Be aware that even if you do win, it is usually only a moral and media victory. The regulator has no power to award damages. On rare occasions, Ofcom may require the offending service to broadcast a summary of its breach decision. Only if the breach is especially shocking will Ofcom fine the broadcaster. The most notable case here was back in 2011 when Ofcom fined the Iranian news channel Press TV £100,000 for broadcasting a forced confession made by journalist Maziar Bahari (picture below).

    4. Draft your complaint carefully. Keep it as crisp as you can and to the point. The Ofcom procedures for considering a fairness (or privacy) complaint are more time-consuming, technical and rigorous than for all other types of complaint under the Code. This is because Ofcom is adjudicating between the complainant and the broadcaster, not just assessing a programme that is complained about against the relevant rules in the Code. You may want to seek specialist assistance with drafting a complaint.

    DEFENDING A FAIRNESS COMPLAINT

    5. The best defence is having effective compliance arrangements and training in place while a broadcast in being made. This means the production team for a programme will be aware in advance of their duties under the Ofcom fairness rules and take steps to fulfil them – for example by giving someone against whom “significant allegations” are being made an appropriate chance to respond.

    6. If you think a fairness complaint made against you is very weak and frivolous, do not just meekly allow Ofcom to produce an entertainment decision and proceed to investigate. On first becoming aware of the complaint, set out for the regulator at this early stage your arguments as to why they should end the process there and then. If you succeed, you will save yourself (and Ofcom) an immense amount of time and effort.

    7. If Ofcom does start a fairness investigation, deal with it in a timely and sensible way. Again, an obvious point but too often ignored by less well resourced broadcasters. Like an advocate in court, try to see the case from the judge’s (Ofcom’s) point of view – and lay out your responses so as to present the regulator with the facts and arguments to find in your favour.

    It will be interesting to discover in the weeks ahead if Kevin Spacey does make a fairness complaint to Ofcom about the Channel 4 documentaries. I doubt it. Knowing the broadcaster’s professional compliance team, they will have been across these programmes from an early stage and will have been wise enough to give Spacey’s responses adequate space.