UK: BBC Panorama Episode On Primark Breached BBC Editorial Guidelines

Following an appeal by Primark against a finding by the BBC's Editorial Complaints Unit, the BBC Trust's Editorial Standards Committee has found against the BBC and has found that a Panorama programme breached the BBC Editorial Guidelines on accuracy and fairness. In particular, it concluded that it was more likely than not that footage used in the June 2008 edition of Panorama, entitled "Primark: On the Rack", was not authentic. This will come as a positive decision for many corporate entities that find themselves the subject of reports by investigative journalists, and will help ensure that any such reports will be scrutinised accurately and fairly.

A complainant may refer to the BBC or to Ofcom, the communications regulator, for complaints in respect of a BBC broadcast, with the exception of issues of impartiality and inaccuracy which remain the responsibility of the BBC. An initial complaint to the BBC should be made within 30 days of the transmission, and should be dealt with within 10 working days, depending on the nature of the complaint. If the complainant is not satisfied with the response, it is required to request a further response to the complaint. If the complaint is still not addressed, it may be referred to management, or, should the complainant consider that it relates to a breach of the BBC Editorial Guidelines, the complaint will be referred to the BBC Executive's Editorial Complaints Unit (ECU). Subsequently, the BBC Trust's Editorial Standards Committee (ESC) may be asked to consider an appeal against a decision of the ECU.

Primark initially complained to the ECU after the broadcast. The ECU's decision was not satisfactory to Primark, leading it to appeal to the ESC, at which stage Primark also appealed against the manner in which its complaint had been handled. While the ESC stated that there was "not one piece of irrefutable and conclusive evidence" which would enable it to say for certain whether the footage, sourced from an undercover reporter, was or was not staged, the appeal process did not require a finding beyond reasonable doubt. A review of the evidence concluded that the footage was more likely not to be authentic, and the material was considered to be in serious breach of the BBC's Editorial Guidelines on accuracy and fairness. These state respectively that the BBC's output must be well-sourced, based on sound evidence, thoroughly tested and presented in clear precise language, and that the BBC will be open, honest and straightforward in dealing with contributors. The appeal also highlighted serious failings in the making of the programme; it was found that the freelance journalist was given little or no guidance in relation to undercover footage guidelines, or how appropriately to record his approach to the filming and evidence obtained, so that the editorial team would be able to verify and authenticate the material prior to broadcast.

The finding required that an apology be broadcast before or after an edition of Panorama, the date of which is yet to be confirmed, and an apology be displayed on the front page of Panorama's website for one week from the date of the broadcast apology. The handling of Primark's complaint was also evaluated and the ECU was found to have acted unfairly by not taking into account the expert report submitted by Primark, and by placing the burden of proof regarding the complaint on Primark. Further, the issues of accuracy and fairness raised in this appeal are required to be considered by the BBC Trust in its review of the ECU framework in 2011-2012.

Primark's appeal has caused the BBC not only to reflect on the flaws in its complaints process, but also on the adequacy of the BBC Editorial Guidelines themselves. Accordingly, a BBC director has been tasked with considering amendments or enhancements to the guidelines. The BBC Executive is also due to report back with related findings and lessons learnt from the appeal by 7 July 2011.

Although this process has clearly been a protracted one for Primark – the final decision has taken about three years – overall this is a welcome result in terms of protecting corporate reputations from potential damage by evidence which is not sufficiently scrutinised by a broadcaster prior to broadcast. This appeal may therefore help shape the BBC Editorial Guidelines and complaints process to further ensure that actions of corporates are more fairly represented in future.

The journalist responsible for the footage may yet seek to contest the appeal and take the matter further. This may not be the last we hear of this.

The decision of the BBC Trust's Editorial Standards Committee can be found here.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

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The original publication date for this article was 17/06/2011.