Ofcom have clearly accepted (without admitting it) that they do not have the statutory powers to introduce the new and totally disproportionate rules in Section Two of the Broadcasting Code they originally proposed in August 2019. These would have imposed a new duty of care on ALL broadcasters to look after the welfare of ALL adults taking part in ALL programmes. (See my previous blogs). Instead in their new consultation (published, symbolically perhaps for worried broadcasters on Friday, 13 March) they are planning in effect to introduce two new Practices in Section Seven of the Code (Fairness).

The important thing, as broadcasting compliance experts know, is that there is only one Rule in Section Seven which can be broken – that is, a broadcaster must avoid unfair or unjust treatment of individuals in programmes. A Practice cannot be breached – only a Rule. This move to Section Seven by Ofcom has two advantages for broadcasters which lessen the impact of the latest proposed changes.

A fairness complaint can only be made to Ofcom by an individual affected, not any member of the public, and must be formally entertained by Ofcom before any investigation begins. Ofcom must always produce a reasoned entertainment decision. This will cut considerably the number of complaints under the new Practices and the number which Ofcom investigates. Second, whenever finding a breach based on the new Practices, Ofcom will still need to demonstrate that whatever the broadcaster is supposed to have done/not done, it resulted in unfair or unjust treatment to the individual concerned.

The first new Ofcom proposal is to extend the existing Practice 7.3 on ‘informed consent’. This reform would place an obligation on broadcasters whenever seeking ‘informed consent’ from anyone taking part in a programme to ensure they are “informed about potential negative consequences arising from their participation in the programme which may affect their welfare…and any steps the broadcaster…intends to take to mitigate these”.

The second proposal is to introduce a wholly new Practice (7.15) which would compel broadcasters to take “due care over the welfare of: (a) vulnerable people [defined in 8.22] who take part in a programme; and (b) someone who might be at risk of harm as a a result of taking part in a programme, taking into account” their contribution and the nature of the programme etc.

At the back of the consultation is a ‘risk matrix’ of Guidance supposed to help broadcasters identify risks and manage them when considering Practices 7.3 and 7.15. This is over long and over complicated in my view. It does not underline sufficiently the paramount importance Ofcom should place on freedom of expression and Ofcom’s intention when applying the new Practices not to impose a new and disproportionate burden on broadcasters, especially in the area of news and current affairs.

Ofcom also proposes to bring in a new Rule in Section Two (Harm and Offence – Rule 2.17) to protect VIEWERS (not participants). In effect it extends Rule 2.3 by obliging broadcasters to protect viewers from harm and offence “arising from the treatment of vulnerable people in programmes, and those who appear to be put at risk as a result of participation in a programme” by providing sufficient context or information to viewers.

Interestingly Ofcom did not propose this novelty in the first consultation. It does not explain why it suddenly decided in this second consultation that viewers needed this extra protection. Rule 2.3 of course covers this area adequately already – and has been used for this purpose several times by Ofcom. This new rule is simply not needed and should be dropped.

The consultation closes on 14 April 2020. Although the new proposals are narrower and more sensible than the original ones, they can still be improved. If any broadcaster needs help in preparing a response please drop me a line.