This Christmas all British broadcasters can breathe a sigh of relief. Ofcom finally published (18 December 2020) their new rules placing new obligations on TV and radio channels to look after adults in their programmes – like tragic Steve Dymond (pictured) who was suspected of committing suicide in 2019 after appearing on the now defunct Jeremy Kyle Show. See https://www.ofcom.org.uk/__data/assets/pdf_file/0027/209565/statement-protecting-participants-in-programmes.pdf

Although the new rules are not perfect, and much will depend on how Ofcom applies them when they come into force in April 2021, they are a vast improvement on the regulator’s ill-conceived first set of proposals published in the autumn of 2019. These proposed to impose dangerously intrusive new duties on broadcasters to take care of ALL adults taking part in ALL their programmes through new rules in Section Two of the Broadcasting Code, and – crucially – would have been almost certainly unlawful (see my previous blogs).

In response to the justified outcry from broadcasters, Ofcom went back to the drawing board. In a second consultation (unprecedented in my experience for Ofcom in the standards area) they suggested overall a much more sensible and proportionate set of proposals. The central point was that the proposed new changes would supplement the existing regulations in Section Seven of the Code (Fairness) by introducing a new Practice ie a duty to take due care over the welfare of a contributor who might be at risk of significant harm as a result of taking part in a programme, except where the subject matter is trivial or their participation minor.

Because the new regulations were in Section Seven, this would provide essential protections to broadcasters: the individual appearing in the programme would need to make a formal fairness complaint to Ofcom (so weeding out many potentially vexatious complaints), and there could only be a breach of the Code if Ofcom concludes the participant was indeed unjustly or unfairly treated under Rule 7.1.

Sophie Gradon, who died after appearing on ITV’s Love Island

The other – but ill-advised – proposal in the second set of proposals was to introduce a wholly new rule in Section Two to oblige broadcasters to provide adequate protection to audiences from potential harm and/or offence arising from the treatment of “vulnerable people”, and those who appear to be put at risk of harm, in programmes. This potential novel rule was in fact unnecessary because broadcasters were already under a duty to do this under the existing Rule 2.3.

Ofcom’s final – and very sensible – decision on this point on 18 December was to retreat. Instead of a new rule, the regulator will simply add a sub-clause to Rule 2.3, specifically setting out “treatment of people who appear to be put at risk of significant harm as a result of their participation in a programme” as a specific potential cause of offence which a broadcaster may need to justify by the context.

We must now wait for the Ofcom guidance on the new rules to be published early in the New Year before the changes come into force on 5 April 2021. This will be especially important for all news and current affairs broadcasters. They were given some Christmas cheer by Ofcom saying (Statement, paras.3.33-35) that the new rules (and the intrusive obligation for example to do risk assessments) will only apply to them in limited circumstances, but hopefully the new guidance will provide further, and much needed, assurance.

Ofcom clearly wanted to clear their decks of this issue before the much more contentious and controversial one of how to regulate online harms crash lands on Riverside House (Ofcom’s London HQ) in 2021. The online giants like Facebook and Google will be looking to Ofcom to come up with some practical and proportionate regulations and guidance on how the regulator will apply the new statutory duty of care the government plans to impose on them to protect users from certain types of harmful content.

As I know from chairing a panel of experts on the subject for media law firm, Simons Muirhead (see picture above, and https://smab.co.uk/online-harms-white-paper/ ), the major online companies welcome sensible and proportionate regulation – but will Ofcom propose it first time round? If not, do these companies have the UK regulatory nous and expertise to persuade Ofcom to change tack – as happened successfully with the new rules on protection of participants?

Watch this fast developing regulatory space in the New Year….