Tim Hardy thinks that the current powers of television's regulatory bodies do little to deter the often unscrupulous and inaccurate reportage that forms "public interest' programming. Tim Hardy is a litigation partner at Cameron McKenna.
Broadcast media is immensely powerful. A factual programme shown on prime-time television can attract up to 10 million viewers. Inaccuracies and unfairness can be devastating for those involved.
But short of issuing libel proceedings following a broadcast, there is little that can be done to rein in errant broadcasters and make them accountable to the viewing and listening public.
In January, the Broadcasting Standards Commission (BSC) introduced a new Code on Fairness and Privacy, as required by the Broadcasting Act 1996. The code gives guidance on the principles and practices to be followed in connection with the avoidance of unjust and unfair treatment in programmes and unwarranted infringement of privacy in or in connection with the obtaining of material included in programmes.
Disaffected parties may complain to the BSC if they feel that broadcasters have failed to follow these guidelines. But complainants are increasingly finding that the BSC's adjudications result in minimal change to broadcasting practices. Conduct criticised by the BSC has been known to be repeated by a broadcaster a matter of weeks later.
And why not? The BSC can do nothing to punish transgressors, except order a summary of the adjudication to be published after a future edition of the offending programme.
In a recent adjudications bulletin, the commission criticised two BBC programmes for unfair and unjust treatment of their subject matters. The first was an edition of The Rantzen Report which investigated the treatment of a hospital patient.
The BSC held that secret filming carried out for the programme had been unjustified. The BBC's in-house magazine noted, in respect of this adjudication, that "the programme makers' journalistic integrity was not in doubt" and that it "stood by the decision to use secretly recorded film, given the fundamental validity of the programme".
The second programme criticised was a Watchdog programme carrying a feature on Dixons Group. The BSC found that the item had been misleading and that secret filming had invaded Dixons' privacy. The BBC argued that the number of complaints was "tiny" and that "Watchdog remains committed to impartiality, fairness and eliminating the risk of error".
A commission with the power to punish programme makers may see these "commitments" being adhered to somewhat more strongly than they are at present. Suggestions for reform have included:
requiring the programme's presenter to read out the summary of the adjudication;
an apology. At present, no apology is required. The adjudications are likely to be taken much more seriously if the presenter is required to make a specific apology. In one notable 1996 case, the broadcaster prefaced and followed the summary of the adjudication with derogatory on-camera comments by the programme's presenter. The new Broadcasting Act requires summaries to be broadcast without comment, but says nothing about their time of broadcast; and finally
the power to fine broadcasters and production companies for inaccurate or unfair stories. The Independent Television Commission (ITC) has such a power in respect of non-BBC channels, and additional powers for repeat offenders which include the right to withdraw their licences. At least one successful complainant has suggested giving the ITC the power to order the sacking of the staff who make the offending programmes.
Journalists claim that any broadening of powers will mean the end of investigative journalism. But this claim does not survive close examination.
Investigative journalism has a vital place in any democracy. Journalists have considerable protection from the BSC's existing Code on Fairness and Privacy. The use of deception and various invasions of privacy is permitted in cases of "overriding public interest", subject to the caveat that "the means of obtaining the information must be proportionate to the matter under investigation".
It is even planned to build protection into the forthcoming Human Rights Bill, which will introduce into English law for the first time a right to privacy, providing journalists comply with their own codes of practice.
The current regime gives journalists the ability to argue that almost any story is in the public interest.
When stories are later shown to be nothing of the kind, there is little that can be done, short of the broadcast of an adjudication with little impact.
If the broadcast media is to maintain its reputation for fair, accurate and balanced reporting, it is vital that the BSC is given teeth to enforce its code.