C2C3Part V The Broadcasting Standards Commission
Pt. 5 modified (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 18 para. 52 (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
Establishment of Broadcasting Standards Commission
F39106 The Broadcasting Standards Commission.
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Unjust or unfair treatment or unwarranted infringement of privacy
C1107 Preparation by F21OFCOM of code relating to avoidance of unjust or unfair treatment or interference with privacy.
1
It shall be the duty of F21OFCOM to draw up, and from time to time review, a code giving guidance as to principles to be observed, and practices to be followed, in connection with the avoidance of—
a
unjust or unfair treatment in programmes to which this section applies, or
b
unwarranted infringement of privacy in, or in connection with the obtaining of material included in, such programmes.
F222
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3
F21OFCOM shall from time to time publish the code (as for the time being in force).
4
Before drawing up or revising the code, F21OFCOM shall consult—
a
each broadcasting F23... body, and
b
such other persons as appear to F21OFCOM to be appropriate.
5
This section applies to—
a
any programme broadcast by the BBC,
b
any programme broadcast by the Welsh Authority or included in F24any public service of the Welsh Authority (within the meaning of Part 2 of Schedule 12 to the Communications Act 2003) , and
c
any programme included in a licensed service.
Portrayal of violence or sexual conduct etc.
F40108 Preparation by BSC of code relating to broadcasting standards generally.
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F41109 Monitoring by BSC of broadcasting standards.
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Complaints
110 General functions of F29OFCOM in relation to complaints.
1
Subject to the provisions of this Part, it shall be the duty of F29OFCOM to consider and adjudicate on complaints which are made to them in accordance with sections 111 and 114 and relate—
a
to unjust or unfair treatment in programmes to which section 107 applies, or
b
to unwarranted infringement of privacy in, or in connection with the obtaining of material included in, such programmes.
F302
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4
111 Complaints of unfair treatment etc.
1
A fairness complaint may be made by an individual or by a body of persons, whether incorporated or not, but, subject to subsection (2), shall not be entertained by F42OFCOM unless made by the person affected or by a person authorised by him to make the complaint for him.
2
Where the person affected is an individual who has died, a fairness complaint may be made by his personal representative or by a member of the family of the person affected, or by some other person or body closely connected with him (whether as his employer, or as a body of which he was at his death a member, or in any other way).
3
Where the person affected is an individual who is for any reason both unable to make a complaint himself and unable to authorise another person to do so for him, a fairness complaint may be made by a member of the family of the person affected, or by some other person or body closely connected with him (whether as his employer, or as a body of which he is a member, or in any other way).
4
F42OFCOM shall not entertain, or proceed with the consideration of, a fairness complaint if it appears to them that the complaint relates to the broadcasting of the relevant programme, or to its inclusion in a licensed service, on an occasion more than five years after the death of the person affected, unless it appears to them that in the particular circumstances it is appropriate to do so.
5
F42OFCOM may refuse to entertain a fairness complaint if it appears to them not to have been made within a reasonable time after the last occasion on which the relevant programme was broadcast or, as the case may be, included in a licensed service.
6
Where, in the case of a fairness complaint, the relevant programme was broadcast or included in a licensed service after the death of the person affected, subsection (5) shall apply as if at the end there were added “within five years (or such longer period as may be allowed by F42OFCOM in the particular case under subsection (4)) after the death of the person affected”.
7
F42OFCOM may refuse to entertain—
a
a fairness complaint which is a complaint of unjust or unfair treatment if the person named as the person affected was not himself the subject of the treatment complained of and it appears to F42OFCOM that he did not have a sufficiently direct interest in the subject-matter of that treatment to justify the making of a complaint with him as the person affected, or
b
a complaint made under subsection (2) or (3) by a person other than the person affected or a person authorised by him, if it appears to F42OFCOM that the complainant’s connection with the person affected is not sufficiently close to justify the making of the complaint by him.
F43112 Committee to consider fairness complaints.
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F44113 Complaints relating to taste and decency, etc.
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114 Supplementary provisions as to making of complaints of either kind.
1
2
The F25OFCOM shall not entertain, or proceed with the consideration of, a fairness complaint F27... if it appears to them—
a
that the matter complained of is the subject of proceedings in a court of law in the United Kingdom, or
b
c
that the complaint is frivolous, or
d
that for any other reason it is inappropriate for them to entertain, or proceed with the consideration of, the complaint.
115 Consideration of fairness complaints.
1
Subject to the provisions of sections 111 and 114, every fairness complaint made to F14OFCOM shall be considered by them either at a hearing or, if they think fit, without a hearing.
2
Hearings under this section shall be held in private; and where such a hearing is held in respect of a fairness complaint, each of the following persons shall be given an opportunity to attend and be heard, namely—
a
the complainant,
b
the relevant person,
F15c
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d
e
any other person who F14OFCOM consider might be able to assist at the hearing.
3
Before F14OFCOM proceed to consider a fairness complaint they shall send a copy of it—
a
to the relevant person, and
F17b
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4
Where the relevant person receives from F14OFCOM a copy of the complaint, it shall be the duty of that person, if so required by F14OFCOM—
a
to provide F14OFCOM with a visual or sound recording of the relevant programme or of any specified part of it, if and so far as the relevant person has such a recording in his possession;
b
to make suitable arrangements for enabling the complainant to view or hear the relevant programme, or any specified part of it, if and so far as the relevant person has in his possession a visual or sound recording of it;
c
to provide F14OFCOM and the complainant with a transcript of so much of the relevant programme, or of any specified part of it, as consisted of speech, if and so far as the relevant person is able to do so;
d
to provide F14OFCOM and the complainant with copies of any documents in the possession of the relevant person, being the originals or copies of any correspondence between that person and the person affected or the complainant in connection with the complaint;
F18da
to provide OFCOM with such other things appearing to OFCOM to be relevant to their consideration of the complaint, and to be in the possession of the relevant person, as may be specified or described by OFCOM;
e
to furnish to F14OFCOM and the complainant a written statement in answer to the complaint.
5
Where the relevant person receives from F14OFCOM a copy of a fairness complaint, it shall also be the duty of that person, if so required by F14OFCOM—
a
where the relevant person is a broadcasting body, to arrange for one or more of the governors, members or employees of the body to attend F14OFCOM and assist them in their consideration of the complaint, or
b
where the relevant person is a body other than a broadcasting body, to arrange for one or more of the following, namely—
i
the persons who take part in the management or control of the body, or
ii
the employees of the body,
to attend F14OFCOM and assist them in their consideration of the complaint, or
c
where the relevant person is an individual, to attend, or to arrange for one or more of his employees to attend, F14OFCOM and assist them in their consideration of the complaint.
6
Where the relevant person receives from F14OFCOM a copy of a fairness complaint and, in connection with the complaint, F14OFCOM make to any other person a request to which this subsection applies, it shall be the duty of the relevant person to take such steps as he reasonably can to ensure that the request is complied with.
7
Subsection (6) applies to the following requests by F14OFCOM to any such other person as is there mentioned, namely—
a
a request to make suitable arrangements for enabling the complainant and any member or employee of F14OFCOM to view or hear the relevant programme, or any specified part of it, if and so far as the person requested has in his possession a visual or sound recording of it;
b
a request to provide F14OFCOM and the complainant with a transcript of so much of the relevant programme, or of any specified part of it, as consisted of speech, if and so far as the person requested is able to do so;
c
a request to provide F14OFCOM and the complainant with copies of any documents in the possession of the person requested, being the originals or copies of any correspondence between that person and the person affected or the complainant in connection with the complaint;
F19ca
a request to provide OFCOM with such other things appearing to OFCOM to be relevant to their consideration of the complaint, and to be in the possession of the person requested, as may be specified or described by OFCOM;
d
a request to furnish to F14OFCOM and the complainant a written statement in answer to the complaint;
e
a request to attend, or (where the person requested is not an individual) to arrange for a representative to attend, F14OFCOM and assist them in their consideration of the complaint.
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9
In this section “the relevant person” means—
a
in a case where the relevant programme was broadcast by a broadcasting body, that body, and
b
in a case where the relevant programme was included in a licensed service, the licence holder providing the service.
F45116 Consideration of standards complaints.
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117 Duty to retain recordings.
For the purposes of F46section 115 of this Act and of section 167 of the 1990 Act (power to make copies of recordings in connection with certain offences) it shall be the duty of each broadcasting body to retain a recording of every television or sound programme which is broadcast by that body—
a
where it is of a television programme, during the period of 90 days beginning with the day of the broadcast, and
b
where it is of a sound programme, during the period of 42 days beginning with the day of the broadcast.
118 Power to pay allowances to persons attending hearings.
F36OFCOM may, if they think fit, make to any person who attends them in connection with a fairness complaint F47... such payments as they think fit by way of travelling allowance or subsistence allowance where expenditure on travelling or, as the case may be, on subsistence is necessarily incurred by him for the purpose of enabling him so to attend.
119 Publication of F36OFCOM’s findings.
F31
Where OFCOM have considered and adjudicated upon a fairness complaint, they may direct the relevant person to publish the matters mentioned in subsection (3) in such manner, and within such period, as may be specified in the directions.
3
Those matters are—
a
a summary of the complaint;
b
F36OFCOM's findings on the complaint or a summary of them;
F2c
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5
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F17
The regulatory regime for every licensed service includes the conditions that OFCOM consider appropriate for securing that the licence holder complies with every direction given to him under this section.
7A
Section 263 of the Communications Act 2003 applies in relation to conditions included by virtue of subsection (7) in the regulatory regime for a licensed service as it applies in relation to conditions which are so included by virtue of a provision of Chapter 4 of Part 3 of that Act.
7B
It is hereby declared that, where—
a
OFCOM exercise their powers under this Part to adjudicate upon a fairness complaint or to give a direction under subsection (1), and
b
it appears to them that the matters to which the complaint in question relates consist in or include a contravention of the conditions of the licence for a licensed service,
the exercise by OFCOM of their powers under this Part is not to preclude the exercise by them of their powers under any other enactment in respect of the contravention.
7C
Where OFCOM are proposing to exercise any of their powers in respect of a contravention of a licence condition in a case in which the contravention relates to matters that have been the subject-matter of a fairness complaint—
a
OFCOM may have regard, in the exercise of those powers, to any matters considered or steps taken by them for the purpose of adjudicating upon that complaint and to any direction given by them under this section; but
b
steps taken for the purposes of this Part do not satisfy a requirement to give the licence holder in relation to whom those powers are to be exercised a reasonable opportunity, before they are exercised, of making representations to OFCOM.
8
F36OFCOM shall publish, monthly or at such other intervals as they think fit and in such manner as they think fit, reports each containing, as regards every fairness complaint F8... which falls within this subsection and has been dealt with by them in the period covered by the report—
a
a summary of the complaint and the action taken by them on it,
b
where they have adjudicated on it, a summary of—
i
their findings,
ii
any direction given under subsection (1), or other action taken by them, in relation to the complaint, and
c
where a direction has been given under subsection (1) in relation to the complaint, a summary of any action taken by a broadcasting bodyF9... or the holder of a licence to provide a licensed service in pursuance of the direction.
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10
11
The references in subsections (3)(b) and (8)(b) to F36OFCOM’s findings on a complaint shall be construed, in relation to a fairness complaint which has been considered by them in two or more parts, as references to their findings on each part of the complaint.
F411A
In this section “relevant person” means—
a
in a case where the relevant programme was broadcast by a broadcasting body, that body; and
b
in a case where the relevant programme was included in a licensed service, the licence holder providing that service.
F1212
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120 Reports on action taken voluntarily in response to findings on complaints.
1
F372
Where the relevant programme was included in a licensed service, the licence holder shall send to OFCOM a report of any supplementary action taken by him or by any other person responsible for the making or provision of the relevant programme.
3
Where the relevant programme was broadcast by a broadcasting body, that body shall send to F36OFCOM a report of any supplementary action taken by—
a
the broadcasting body, or
b
any other person appearing to that body to be responsible for the making or provision of the relevant programme.
4
F36OFCOM may include, in any report under section 119(8), a summary of any report received by them under subsection (2) or (3) in relation to the complaint.
5
In this section “supplementary action”, in relation to a complaint, means action which, although not taken in pursuance of a direction under section 119(1), is taken in consequence of the findings of F36OFCOM on the complaint.
121 Certain statements etc. protected by qualified privilege for purposes of defamation.
1
For the purposes of the law relating to defamation—
a
publication of any statement in the course of the consideration by F36OFCOM of, and their adjudication on, a fairness complaint,
b
publication by F36OFCOM of directions under section 119(1) relating to a fairness complaint, or
c
publication of a report of F36OFCOM , so far as the report relates to fairness complaints,
is privileged unless the publication is shown to be made with malice.
2
Nothing in subsection (1) shall be construed as limiting any privilege subsisting apart from that subsection.
Miscellaneous and general
F13122 Power of BSC to commission research.
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F13123 International representation by BSC of Government interests.
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F13124 Duty to publicise BSC.
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F13125 Annual reports.
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F13126 Reports to Secretary of State.
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F13127 Contributions towards cost of BSC.
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F13128 Transfer of assets of Broadcasting Complaints Commission and Broadcasting Standards Council to BSC and dissolution of those bodies.
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F13129 Transitional provisions relating to complaints.
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130 Interpretation of Part V.
1
In this Part (unless the context otherwise requires)—
F35...
“broadcasting body” means the BBC or the Welsh Authority;
F35...
“fairness complaint” has the meaning given by section 110(4);
F35...
“licensed service” meansF35...—
- a
any television programme service (within the meaning of Part I of the 1990 Act) which is licensed under that Part,
- aa
F33 the public teletext service,
- b
any relevant independent radio service (within the meaning of section 85 of the 1990 Act),
- c
any additional service (within the meaning of Part 1 of the 1990 Act) which is licensed under that Part,
- d
any digital programme service (within the meaning of Part I of this Act) which is licensed under that Part,
- e
any qualifying service (within the meaning of Part I of this Act) provided by a person other than the Welsh Authority,
- f
any digital sound programme service (within the meaning of Part II of this Act) which is licensed under that Part,
- g
any simulcast radio service (within the meaning of Part II of this Act), and
- h
any digital additional service (within the meaning of Part I or II of this Act) which is licensed under that Part;
- a
F35...
“participant”, in relation to a programme, means a person who appeared, or whose voice was heard, in the programme;
“the person affected”—
- a
in relation to any such unjust or unfair treatment as is mentioned in section 110(1), means a participant in the programme in question who was the subject of that treatment or a person who, whether such a participant or not, had a direct interest in the subject-matter of that treatment, and
- b
in relation to any such unwarranted infringement of privacy as is so mentioned, means a person whose privacy was infringed;
- a
“programme” includes an advertisement and a teletext transmission and, in relation to a service, includes any item included in that service;
F35...
“the relevant programme”, in relation to a complaint, means the programme to which the complaint relates;
F35...
F35...
“unjust or unfair treatment” includes treatment which is unjust or unfair because of the way in which material included in a programme has been selected or arranged.
2
In this Part—
a
any reference to programmes to which section 107 applies shall be construed in accordance with section 107(5), F34...
F34b
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Pt. 5: transfer of functions (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 1 para. 14 (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)