Broadcasting, balance, and blacklists

With less than a month to go before voters go to the polls on 8 June, the newspapers, airwaves, and social media are awash with coverage of the general election. A key topic is the lack of a televised head-to-head UK-wide leaders’ debate involving Theresa May and Jeremy Corbyn – although north of the border, Nicola Sturgeon will face her rivals in a live televised debate on STV.

Other complaints include BBC coverage of UKIP, with the Green party describing as ‘galling’ the decision to give Paul Nuttall two dedicated 30-minute BBC shows prior to the election whereas the Greens have none. Many Twitter users have made the same joke after UKIP’s collapse in the recent local elections: they may have lost all their seats, but at least they’ve got a safe seat on BBC Question Time.

In the past few days Michael Crick, Channel 4 News’ political correspondent, has complained about stage management of political press conferences, stating that: ‘In the ’80s and ’90s, party leaders had half-hour press conferences every AM. Thatcher and co didn’t have lists of questioners or need to know questions in advance.’

Against this backdrop, we consider the rules which apply to broadcasters’ coverage in the lead-up to, and on the day of, the election. These rules have recently altered, as Ofcom only announced changes to its broadcasting code in early March 2017, which then came into effect on 22 March 2017. This election campaign is the first test of how the code will work in practice.

Broadcasting rules

Under electoral legislation, broadcasters must follow codes of practice in their coverage of candidates during election periods. Under section 319 of the Communications Act 2003, Ofcom is required to draw up a code for television and radio services, setting such standards as appear to it best calculated to secure a number of standards objectives for the content of programmes. The broadcasting code regulates independent broadcasters, and the BBC and S4C must draw up, and comply with, their own codes.

In addition to the Ofcom, BBC, and S4C codes, the major broadcasters have produced specific guidelines for their journalists about the 2017 elections (the general election, and the recent local and mayoral elections). Channel 4, for example, has published a guidance note, ‘Guidelines for Programmes Broadcast in the run up to and during the General Election on 8 June 2017’, and it published a separate guidance note in advance of the 4 May elections. The BBC’s ‘Election Guidelines 2017’ runs to 25 pages and includes detailed sections on social media and audience comment, and commissioning and reporting opinion polls.

The three key sections of Ofcom’s code are sections 5 (due impartiality and due accuracy), 6 (elections and referendums), and 7 (fairness). Each of these sections is accompanied by Ofcom guidance.

Ofcom held a consultation between November 2016 and January 2017, following which it decided to amend both section 6 and its rules on party political and referendum broadcasts (the PPRB rules) to remove the previous concept of the list of larger parties. It also altered its approach to regulating BBC editorial content in the areas of due impartiality, due accuracy, elections, and referendums.

Until the recent changes, section 6 and the PPRB rules imposed obligations on broadcasters by reference to a list of larger parties. The PPRB rules required certain licensed broadcasters to offer a minimum of two party election broadcasts to each of the defined ‘larger parties’ and section 6 required broadcasters in their editorial coverage to give ‘due weight’ to the ‘larger parties’. Many journalists and organisations had raised concerns about the list of larger parties. Ofcom has now decided to scrap the list and instead allow broadcasters to use their own judgment, based on the criteria of past electoral support and/or current support, which has been widely welcomed. Ofcom’s guidance makes clear that it puts more weight on evidence of past electoral support than evidence of current support, such as opinion polls.

Section 5 of the code requires broadcasters to act with ‘due impartiality’ (meaning not favouring one side over the other, although what is ‘due’ impartiality is measured as that which is appropriate or adequate to the subject and nature of the programme). Different parts of the section apply to different forms of broadcast, but the guidance makes clear that it requires careful, fact-sensitive consideration by all broadcasters in a range of politically sensitive circumstances, not only during election periods and not only in news or political broadcasting. Due impartiality remains a consideration for the producers of Coronation Street and The Archers as much as it might be for the Today programme and Newsnight. It binds broadcasters similarly on election day and on a damp Tuesday evening in January.

Section 5 makes specific provision for due impartiality in news programming and particularly on issues of political controversy. News in whatever form must be reported with both ‘due accuracy’ and ‘due impartiality’ (rule 5.1). Due impartiality on matters of political or industrial controversy must be preserved, but can be achieved across a series of programmes (for example, including a range of perspectives on a particular issue (rule 5.5)).

Section 6 concerns programmes at the time of elections and referendums. The accompanying Ofcom guidance emphasises that due impartiality during election campaigns ‘does not mean that balance is required in any simple mathematical sense’ (paragraph 1.7). Similarly, the BBC’s guidelines make clear that balance is not required in every programme or bulletin, but rather, particular programmes or programme strands are expected to achieve balance over ‘an appropriate period, normally across a week, or for weekly programmes across the campaign as a whole’. So one party leader appearing on the Andrew Marr Show one week, and other party leaders in subsequent weeks, will not breach the fair balance requirement.

Rule 6.6 provides that candidates must not act as news presenters, interviewers, or presenters of any type of programme during the election period. Rule 6.7 provides that appearances by candidates ‘in non-political programmes that were planned or scheduled before the election or referendum period may continue, but no new appearances should be arranged and broadcast during the period’. Under both rules 6.6 and 6.7, the code makes clear that the BBC is not required to remove archive content during the election period.

Rules 6.8 to 6.12 concern constituency coverage, and they are particularly onerous for broadcasters. Due impartiality must be ‘strictly maintained’ in any constituency report (rule 6.8). If a candidate takes part in an item about their constituency, it is mandatory for broadcasters to offer all candidates within the constituency ‘representing parties with previous significant electoral support or where there is evidence of significant current support,’ including independent candidates, the opportunity to take part (rule 6.9). However, the item may go ahead if a candidate refuses or is unable to participate.

There are specific rules regarding polling day itself. Rule 6.4 provides that: ‘Discussion and analysis of election and referendum issues must finish when the poll opens.’ This refers to the opening of physical polling stations; the same rule does not apply to postal voting. Rule 6.5 bars broadcasters from publishing the results of any opinion poll on polling day itself until the polls close.

Section 7 provides that no individual or organisation is treated unjustly or unfairly in any programme. It includes a positive principle that broadcasters will deal ‘fairly’ with all contributors whomever they may be (rule 7.1). This incorporates an obligation to ensure everyone knows what they are signing up for when they contribute to a broadcast, including in live broadcasting and news programming.

No debate

A key topic of concern for many is the lack of a head-to-head UK-wide leaders’ debate. Theresa May has refused to take part in televised debates, saying that this is because she prefers on-the-ground campaigning. Jeremy Corbyn then refused to take part, saying he would not be involved in a debate made up only of opposition party representatives.

ITV has said it will hold an election debate without either May or Corbyn, although it does not plan to embarrass them with empty chairs. The BBC has confirmed that May and Corbyn will appear one after the other on a BBC Question Time general election special, and David Dimbleby has defended the decision, stating on the Today programme:‘You cannot coerce people into coming into a studio. If they don’t want to do it, they won’t do it.’

Other candidates have also refused to appear in televised debates, leading to broadcasters needing to split items up over two separate recordings. Nothing in the code provides a basis for complaint about these decisions by broadcasters. If a broadcaster wished to go further, and ‘empty chair’ a candidate who has refused to take part in a debate, this would be possible within the code, if the missing candidate had been treated fairly and was aware that this would be the result of a failure to attend.

Election day

We have explained that the broadcasting rules are particularly strict on polling days. In recent years there have been many examples of broadcasters falling foul of these provisions. For example, in 2010, Glasgow radio station Clyde 1 was held in breach of rule 6.4 of the Ofcom code after presenters on a football show, Superscoreboard, discussed how they had voted.

And in 2016, Fox News breached the code on the day of the Brexit vote. A five-minute long news item was aired that not only reported on the EU referendum, but editorialised it with a pro-Brexit stance. At one point, the presenter described the EU as ‘the European super state which makes many decisions on behalf of the UK’, and later in the item, it was said that ‘we are governed by a bunch of bureaucrats that don’t speak English in a funny place called The Hague, which makes no sense at all, and it tells Britain what to do’. Fox News claimed that this had been prepared for a US audience, but Ofcom disagreed, finding it to have breached rule 6.4 – a warning for other broadcasters who operate both internationally and in the UK market that they are still subject to the code.

Caoilfhionn Gallagher QC and Angela Patrick are barristers at Doughty Street Chambers

@DoughtyStPublic

www.doughtystreet.co.uk

Doughty Street Chambers are providing a weekly 'Election and the law' update for Solicitors Journal in the run-up to GE2017. Click here for more.