UK: Broadcasters must give a right to reply

Last Updated: 29 June 2005
Article by Tim Hardy

Ofcom has upheld a complaint of unfair treatment from Novartis AG about a documentary, Dying for Drugs, broadcast by Channel 4 in April 2003.

The Adjudication clearly demonstrates that where a programme includes damaging allegations against a company, the journalists have a "particular responsibility" to ensure that the company is given a proper opportunity to respond in the programme. Channel 4's arguments that it had "deliberately sought to avoid presenting a corporate line" and that the programme was "a documentary rather than a current affairs programme" were rejected. The programme's emotive subject matter did not absolve the programme-makers from their responsibility to include Novartis' response.

This is a very helpful decision for any company that is involved in a documentary or current affairs programme, including the news. The decision is also a real blow to the hard-hitting documentary genre and its growing trend to ignore the rights of those criticised to contribute to programmes. The right to contribute arises from the requirement in the Ofcom Code to give "an appropriate and timely opportunity to respond." In turn, this necessarily involves discussing with the target for any criticism the allegations to be made in the programme, the basis for those allegations and the target's response.

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Ofcom has upheld a complaint of unfair treatment from Novartis AG about a documentary, Dying for Drugs, broadcast by Channel 4 in April 2003.

The Adjudication clearly demonstrates that where a programme includes damaging allegations against a company, the journalists have a "particular responsibility" to ensure that the company is given a proper opportunity to respond in the programme. Channel 4's arguments that it had "deliberately sought to avoid presenting a corporate line" and that the programme was "a documentary rather than a current affairs programme" were rejected. The programme's emotive subject matter did not absolve the programme-makers from their responsibility to include Novartis' response.

This is a very helpful decision for any company that is involved in a documentary or current affairs programme, including the news. The decision is also a real blow to the hard-hitting documentary genre and its growing trend to ignore the rights of those criticised to contribute to programmes. The right to contribute arises from the requirement in the Ofcom Code to give "an appropriate and timely opportunity to respond." In turn, this necessarily involves discussing with the target for any criticism the allegations to be made in the programme, the basis for those allegations and the target's response.

Background

True Vision, a production company that is known for making provocative documentaries on sensitive, emotional topics, produced Dying for Drugs, which investigated the conduct of several large pharmaceutical companies in the testing and pricing of drugs. Among the pharmaceutical companies featured, Novartis AG was criticised in relation to its testing and the pricing of Glivec, a drug developed for the treatment of Chronic Myeloid Leukaemia ("CML"), in South Korea.

Novartis' Complaint

Novartis complained that it had been treated unfairly in the programme, in that the programme had contained misleading and inaccurate statements and Novartis had not been given an appropriate or timely opportunity to respond to allegations made in the programme.

Ofcom's Decision

Ofcom considered that:

  • The programme had given viewers the false impression that CML patients in South Korea had been used as guinea pigs, that their lives had been put at risk in bringing Glivec to the market and that Glivec was now priced beyond their means. The programme had also implied that the US government was putting pressure on South Korea on behalf of Novartis and other pharmaceutical companies. There was no evidence to corroborate the claims made in the programme and this resulted in unfairness to Novartis.
  • The translation of a South Korean CML sufferer's contribution to the programme had not accurately represented what he had said, resulting in unfairness to Novartis.
  • The implication in the programme that the US government had largely funded the development of Glivec was misleading, since this was not in fact the case.
  • While the programme-makers did not have to provide Novartis with an opportunity to preview the programme before it was broadcast, they had failed to give Novartis an adequate opportunity to respond to the allegations made. Providing Novartis with a list of questions to answer was not adequate in this case because of the significance of the allegations made. Novartis should have been offered an interview.

Channel 4 will now be required to broadcast the summary of Ofcom's adjudication.

Implications for Corporations

Ofcom's Code provides:

"Before broadcasting a factual programme…broadcasters should take reasonable care to satisfy themselves that:…material facts have not been presented, disregarded or omitted in a way that is unfair to an individual or organisation…"

"If a programme alleges wrongdoing or incompetence or makes other significant allegations, those concerned should normally be given an appropriate and timely opportunity to respond."

The Code also sets out that, if a company is invited to make a contribution to a programme, the programme makers "should normally, at an appropriate stage:

  • [disclose] the nature and purpose of the programme, what the programme is about and [give] a clear explanation of why [a company] asked to contribute and when (if known) and where [the programme] is likely to be first broadcast;
  • [disclose] what kind of contribution [the company] is expected to make, for example, live, pre-recorded, interview, discussion, edited, unedited, etc;
  • [inform the company] about the areas of questioning and, wherever possible, the nature of other likely contributions; [and]
  • [disclose] any significant changes to the programme as it develops which might reasonably affect [the company's] original consent to participate, and which might cause material unfairness…"

Ofcom's decision on Dying for Drugs emphasises that, where factual programme-makers intend to criticise a company, they must provide the company with a proper opportunity to respond. In cases where significant allegations are to be made, they should offer an interview (which the target may decline) and, at the very least, include the company's response. The Adjudication also demonstrates that Ofcom will not tolerate bald and potentially damaging allegations in relation to a company being made in programmes without sufficient factual evidence being available to back them up, or without the allegations being clearly caveated as being, for example, an interviewee's opinion. Ofcom was also unimpressed with the use of an inaccurate translation in the programme.

The fact that the target of any criticism has a right to respond necessarily requires the broadcaster to enter into a dialogue with the target, which will provide a valuable opportunity to discover the precise nature of allegations being made and the facts on which programme-makers' assertions are based. The right to respond must be exercised properly, at the right time and with care in order to maximise a company's rights to obtain information on the allegations to be made in a programme. A strategy must be adopted to extract the greatest amount of information and, as soon as possible, to secure maximum opportunity to prevent damaging false allegations from being broadcast and for a thorough response to be prepared to minimise any adverse consequences. Ofcom's Code, bolstered by this Adjudication, can be used as a tool to encourage journalists to disclose factual evidence to back up their assertions, thus maximising the information that a company can obtain, and to press home the right to respond.

Channel 4's imaginative arguments that Dying for Drugs was a documentary, rather than a current affairs programme, and that "it had deliberately sought not to present a corporate line" reflect the debate as to whether the requirements for impartiality in broadcast journalism are outdated. Prior to the Hutton Inquiry, there was a noticeable groundswell of journalistic opinion moving towards the view that the rules on impartiality in broadcasting should be relaxed or amended, in order to bring them in line with the rules for print media, which is allowed to be opinionated. Post-Hutton and the BBC's restatement of its commitment to impartiality, the groundswell has ebbed. It is very reassuring to see in this Adjudication that Ofcom has insisted on due impartiality and provision of a right to respond, upholding these as fundamental principles of broadcasting.

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

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 22/06/2005.

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