UK: Media Law Bulletin

Last Updated: 12 October 2010
Article by Paul Herbert

Remember Palestine - Press TV

Press TV is an Iranian news network which broadcasts in English from the UK. It is therefore regulated by Ofcom and subject to the requirements of the Ofcom Broadcasting Code ("OBC"). "Remember Palestine" is a current affairs programme presented by Lauren Booth (who is incidentally the sister of Cherie Blair). This particular programme discussed the events surrounding the interception by Israeli military forces of a pro Palestinian aid convoy en route to Gaza on 31st May 2010. The programme started with a pro Palestinian song set to anti Israeli/pro Palestinian imagery. The programme featured both live and recorded interviews with various contributors including a relative of one of the people on the ship and representatives of various Palestinian charities and aid organisations. None of the contributors represented Israel or its interests.

The Presenter offered the following comments:

"Israeli commandos... committed a massacre of innocent civilians sailing aid ships to the besieged Gaza Strip... this was obviously a barbarous attack on civilians"

"One thing is certain: as Turkey buries its murdered citizens and in Britain we welcome home our brave and injured, the brave men and women on those ships, in one move, have shifted world opinion against Israeli apartheid..".

The various contributors offered the following comments:

"Israel's inhuman and illegal blockage of the people of Gaza... this was the use of lethal force for political ends..."

"Israel is a state above the law..."

"Israel's piracy in the Mediterranean Sea ended with a massacre..."

"The martyrdom of the supporters of the Palestinian people on the freedom flotilla..."

Ofcom received a complaint that the programme was in contravention of the Broadcaster's obligation to observe due impartiality. Rule 5.5 of the OBC states:

"Due impartiality on matters of political or industrial controversy and matters relating to current public policy must be preserved on the part of any person providing a service. This may be achieved within a programme or over a series of programmes taken as a whole."

In its response, Press TV highlighted two comments made by the Presenter which it felt provided the audience with the Israeli viewpoint, ie:-

"There has been a lot of talk about violent terrorism; the Israeli army have said the sort of people who want to go on a Gaza aid convoy are radicals..."

"We've been hearing that the poor commandos landed and were lynched, they didn't mean to use force..."

However, Ofcom were not impressed, pointing out that when seen in context these comments did not produce the effect contended by Press TV. For instance, in relation to the first quote, the Presenter went on to ask the contributor "Does that describe your brother-in-law?" The contributor replied "No not at all" and duly described him; the Presenter then commented "He sounds like a nice guy..."

In relation to the second quote, this was in fact preceded by a comment by the Presenter:

"There has been a lot of Israeli propaganda obviously since the attack.".

Perhaps not surprisingly Ofcom held that when the comments highlighted by the Broadcaster were considered in the context in which they were delivered, they did not achieve due impartiality.

On a wider point, the Broadcaster contended that the "intensity of the descriptions in the programme merely reflected the general atmosphere around the world" and the comment that "Israel is a state above the law" is a viewpoint shared by a large number of people.

Notably the obligation upon the Broadcaster in Rule 5.5 of the OBC is to achieve "due" impartiality. This is not the same as absolute impartiality and due impartiality means as is appropriate to the subject matter. Thus, for example a broadcaster need not be impartial on the issue of a subject such as terrorism or racism; nor does due impartiality import a requirement to give equal time to every view or argument. However, Ofcom felt that because the programme included a number of viewpoints all of which were critical of Israel, it was incumbent upon the Broadcaster to include alternative views which were supportive of or at least sought to explain the actions of Israel. Ofcom therefore upheld the complaint and ruled that the programme was in breach of Rule.5.5.

In reading the adjudication, the author was reminded of an adjudication back in June 2003 by Ofcom's predecessor, the ITC. This concerned a report on Fox News about which complaints were received concerning bias and lack of impartiality. On that occasion, the ITC rejected the complaints and observed that "overseas channels will sometimes view events from their own particular perspective". There was, it said, no need for overseas channels to be completely balanced in their reporting, as long as they represented a range of views in their entire schedule. Ofcom was clearly not prepared to extend that tolerance to an overseas service in respect of a piece which appeared to be entirely devoid of alternative voices.

Gaunt v Ofcom

The controversial radio presenter, Jon Gaunt, lost his recent judicial review application in respect of Ofcom's decision that his interview with Michael Stark on 7 November 2008 breached the OBC. Mr Gaunt's application had been supported by Liberty.

Mr Stark, a councillor of Redbridge Council, had proposed that smokers should be banned from adopting or fostering children. Mr Stark was subsequently invited onto Mr Gaunt's radio show on Talksport. Mr Gaunt was particularly sensitive to the issue in question as he himself had been fostered as a child. A heated debate ensued, which rapidly degenerated into an uncontrolled shouting match whereby Mr Gaunt called Mr Stark a "Nazi", a "health Nazi" and an "ignorant pig".

Fifty-three complaints were received by Ofcom. They found that Mr Gaunt's interview did not apply the generally accepted standards so as to protect the public from harmful or offensive material (Rule 2.1 OBC), and that the material which caused offence could not be justified in context (Rule 2.3).

Although Ofcom's decision was made against Talksport as licensee for the Talksport service, and not personally against Mr Gaunt, the Court nevertheless held that Mr Gaunt had sufficient standing challenge it. The Court accepted that the decision was capable of affecting Mr Gaunt's freedom to conduct radio interviews in the manner in which he had become accustomed. Mr Gaunt argued that Ofcom's decision was a disproportionate and unjustified interference with his freedom of expression contrary to Article 10 ECHR. He argued that the limits of acceptable criticism of political issues are wider as regards a politician such as Mr Stark as opposed to a private individual. He also pointed out that Mr Stark himself had not complained about his treatment during the interview.

Liberty reminded the Court that freedom of expression is a fundamental constituent to the functioning of a democratic society, and that it is especially important in debates relating to policies at all levels of government. Liberty also stated that Mr Stark was fully aware of the nature of Mr Gaunt's interviewing style, and that the interview was a legitimate discussion about a new and controversial policy.

The Court noted that the OBC explicitly states it has been drafted in light of the right to freedom of expression pursuant to Article 10, and that Ofcom has a statutory duty to regulate broadcasts. It then considered whether Ofcom's decision disproportionately infringed Mr Gaunt's right to freedom of expression, and whether, having regard to that ECHR right, the broadcast failed to protect the public from the inclusion of harmful or offensive material.

The Court found that the term "Nazi", although potentially highly insulting, was capable of being justified in context. However, Mr Gaunt's use of the term in the latter part of the interview clearly amounted to verbal abuse of Mr Stark. Additionally, the term "ignorant pig" was not justifiable. Given that the offensive and abusive nature of the broadcast had no factual content or justification, the Court held that Ofcom's decision was not a material interference with Mr Gaunt's freedom of expression.

A press release subsequently published by Liberty states that Mr Gaunt intends to challenge the Court's decision. One suspects that he has an uphill task ahead of him: The ability of politicians to take their punishment from strident interviewers does not necessarily limit the harm and offence to the audience. The broadcast regulators' enviable record in JR applications is likely to continue and Ofcom's distinction between the labels "Nazi" and "ignorant pig" though superficially trivial, give an interesting insight into how complaints of this nature are analysed in the calm and collected atmosphere of an Adjudication Hearing.

Ofcom Consultation on Product Placement

This subject has a rather tortuous history: for as long as anyone cares to remember, Product Placement ("P/P") has been prohibited in all UK television services. The only exception has been in relation to theatrical movies shown on TV, since of course the practice is widespread in Hollywood and elsewhere.

The AVMS Directive (2007) confirmed the ban on P/P but for the first time permitted member states to derogate from this, subject to certain safeguards and prohibited categories of products.

The Government carried out a consultation on the AVMS Directive in 2008 and concluded as a result that the ban on P/P should be maintained. A year later and with a new minister in charge, it had a change of heart and launched a second consultation. This persuaded the Government to relax the ban on P/P and led to the passing of the Audiovisual Media Services (Product Placement) Regulations 2010, which amend the Communications Act 2003 to permit paid-for product placement in television programmes. However, P/P remains prohibited under Rule 10.5 OBC.

In June 2010 Ofcom commenced a consultation to examine its proposed new rules clarifying how P/P will be regulated. These are expected to be issued at the end of 2010. The consultation closed on 17 September 2010.
Under the new legislation, P/P is permissible in the following genres:

  • Cinematographic works;
  • Films and series made for TV;
  • On-demand services;
  • Sports programmes; and
  • Light entertainment programmes.

It is specifically prohibited in children's, religious, current and consumer affairs programming. The legislation prohibits the placement of alcohol, tobacco products, medicines, infant formulae, HFSS foods and gambling services. The purpose of Ofcom's consultation is to examine how these permission and prohibitions should operate. Specific as the new legislation is, it still throws up a number of potential issues and uncertainties which the consultation seeks to cover:

  • Should P/P be solely defined as for commercial purposes as the legislation suggests, or should all P/P be regulated, whatever its purpose?
  • Extraordinarily, the legislation does not explicitly mention news programming as a prohibited area for P/P. Ofcom seeks to rectify this apparent lacuna.
  • Ofcom proposes that "thematic placement", that is the creation of storylines or situations to showcase the interests or objectives of a third party funder should not be permitted.
  • As well as the products specifically prohibited by the legislation, Ofcom proposes to extend the prohibition to any products the advertising of which on TV is prohibited by the BCAP Code eg weapons, sexual massage services, obscene material and the like.

Ofcom also proposes that broadcasters use an on-air symbol at the beginning and end of programmes to alert viewers to product placement, in line with the statutory requirements under the Act. There are also proposals to use a neutral signal, and an audio signal, in order to clarify further whether a programme contains product placement.

Importantly, the existing prohibition on undue prominence in the OBC would remain unaffected by the advent of P/P. This means that all P/P would have to be in context and editorially justified: in other words not blatant.

The commercial benefits of product placement cannot be predicted at this stage, but it is unlikely to present a significant boost to the long-term funding of TV programming. The final regulatory rules are awaited with great interest.

LEGAL

Defamation update

We only have room for one short but important decision. The recent case of Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB) considered whether an assertion in a newspaper book review that the book's author had allowed "copy approval" was sufficiently serious, or too trivial, to found a libel action.

The Claimant, an author and academic, sued for libel and malicious falsehood in respect of a book review published by the defendant newspaper. It was said that Dr Thornton's academic approach "means that her interviewees have the right to read what she says about them and alter it. In journalism we call this 'copy approval' and disapprove". Dr Thornton claimed that those words meant that she had engaged in a highly reprehensible practice of copy approval and had thereby shown herself to be untrustworthy and fatally lacking in integrity and credibility as a researcher and writer. Her primary case was that the article was a business or professional libel. In addition Dr Thornton submitted that when it was read in its context it was also a personal attack or libel.

Tugendhat J held that the words complained of were not capable of being defamatory. In reaching his decision, the Judge considered (i) business defamation and what makes it actionable and (ii) the requirement for a complaint to include a qualification or threshold of seriousness to exclude trivial claims.

Tugendhat J held that the words complained of did not amount to a personal libel, as they did not imply that Dr Thornton "had done anything which in ordinary language could be highly reprehensible, or reprehensible at all" or, alternatively, fell below the threshold required for the words complained of to be capable of being defamatory.

Furthermore, those words could not amount to a professional libel. Although professional success as a writer does depend to some extent upon the opinion of reviewers and those reviewers may affect the attitude of potential readers, the standard to be applied was that of society as a whole. In the world of professional writing, there are many different standards of work targeted to different readerships. Writers are therefore free to direct different products to different readerships or markets. Therefore to impute to a writer that they wrote to one standard rather than another, without more, could not of itself affect her reputation with society as a whole and be defamatory.

The case is potentially of great importance to broadcasters and publishers as it introduces a "substantial harm" test into the definition of what constitutes a defamatory allegation. It sends an important message to potential claimants and their advisers that trivial claims will not be entertained: there is a threshold of seriousness which must be crossed before a statement can be regarded as defamatory.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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