News Criminal Defence 21st Jun 2017

Narita Bahra represents the The Sikh Channel at Office of Communications Regulatory Tribunal

The Office of Communication (Ofcom) regulate television and radio programme content in the UK in accordance with the Ofcom Broadcasting Code. Broadcasters must ensure that they comply with the rules as set out in the Code. Where broadcasters fail to observe Ofcom Standard Codes and the Fairness Codes the regulator will take action. Stakes for those who are asked to appear before the regulatory panel are high, as penalties can result in substantial fines and/ or loss of the broadcasting licence.

Under the Code the provider of a service is the person with “general control” over which programmes and other facilities and services are comprised in the service. “General control” is broad. It includes control over services and facilities to which access is provided, as well as editorial control.

Where a Code has been breached, Ofcom will normally publish a finding and explain why a broadcaster has breached the Code. Thereafter, regardless of whether the breach is accepted by the licence holder, Ofcom have discretion to instigate further regulatory adjudication, if they form the view that the licence holder has “deliberately, seriously or repeatedly” breached the code. Statutory sanctions against the broadcaster post a panel hearing can follow.

When justifying any accepted breach it is crucial that broadcasters are able to justify the context in which the offending material appeared;

In accordance with section 319(4) of the Code the following factors need to be considered:

(a)  the degree of harm and offence likely to be caused by the inclusion of any particular sort of material in programmes generally or in programmes of a particular description;

(b)  the likely size and composition of the potential audience for programmes included in television and radio services generally or in television and radio services of a particular description;

(c)  the likely expectation of the audience as to the nature of a programme’s content and the extent to which the nature of a programme’s content can be brought to the attention of potential members of the audience;

(d)  the likelihood of persons who are unaware of the nature of a programme’s content being unintentionally exposed, by their own actions, to that content;

(e)  the desirability of securing that the content of services identifies when there is a change affecting the nature of a service that is being watched or listened to and, in particular, a change that is relevant to the application of the standards set under this section;

(f)  the desirability of maintaining the independence of editorial control over programme content.

Ofcom advise that any Broadcasters who find themselves facing potential breaches of the Code or compliance issues should seek their own legal advice as soon as practicable.

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