Big Fat Gypsy Weddings get Ofcom (and High Court) approval

Ofcom has successfully resisted an application for judicial review of its decision to reject a standards complaint made by the Traveller Movement about the Channel 4 series Big Fat Gypsy Weddings and Thelma’s Gypsy Girls.¹ The decision is notable for its rarity: it is one of only three judicial review hearings that Ofcom has faced in relation to its regulation of broadcasters. It also affirms the courts’ reluctance to interfere with decisions made by a specialist media regulator on matters which fall within the regulator’s remit.

Background

On 1 August 2012, the Traveller Movement (TM) complained to Ofcom about the Channel 4 (C4) broadcasts in 2012 of the second series of the observational documentary, Big Fat Gypsy Weddings, with one episode from its first series, and a further series called Thelma’s Gypsy Girls. TM alleged that C4 intended to create programmes that would be “racist, harmful, offensive, harmful to children” or were “reckless as to this obvious and very foreseeable outcome”.  The gist was that the two series were offensive because they were racist and denigrated individuals and families from the Irish Traveller, English Traveller, Gypsy and Romany (ITG&R) communities in a “negatively stereotypical way”, causing harm particularly to children and young persons.

Ofcom dealt with the aspects of the complaint that it considered raised:

1. “standards” issues under its procedures for investigating breaches of content standards;² and
2. “fairness” issues under its procedures for the adjudication of fairness and privacy complaints.³

TM was aware from the outset that the standards and fairness aspects were being dealt with separately, and by separate teams within Ofcom.  In particular, in its “Entertainment Decision” of November 2012 to entertain certain fairness aspects (on the basis that TM had standing to complain about those), Ofcom made it clear that the fairness complaint did not include any allegations that harm had been caused by the programmes: that was an issue for the standards complaint.

Ofcom’s views

Ofcom reached a “Preliminary View” on fairness after representations from C4.  Ofcom sent this to TM and C4 on 27 September 2013, stating its preliminary view not to uphold the complaint. Further representations were invited on the existing complaint and the Preliminary View.  TM made no further representations, beyond complaining about how long Ofcom had taken to reach its “indefensible” decision.  C4 made no representations either.  Shortly afterwards, there followed the “Final Decision” on the fairness complaint.

TM’s challenge only concerned Ofcom’s “Final Decision” on the standards complaint.  Under its standards complaints procedures (which explain that fairness complaints are dealt with under different statutory provisions and different procedures), Ofcom received representations from C4 in response to the complaint, which (in accordance with the procedures) were not sent to TM.  The Preliminary View was then sent (again, in line with the procedures) to C4 only and not to TM.  C4 had no comments, and Ofcom’s Final Decision was issued on the same day as the fairness Final Decision, again rejecting the complaint.

TM challenged the standards decision, on the grounds that the procedure adopted was unfair, whether:

1. in general, in not enabling complainants to comment on the Preliminary View (in contrast to broadcasters, which were given that opportunity); or
2. in the particular circumstances of this case, where Ofcom had a discretion to give TM that opportunity, and TM considered that TM should have been given it.

TM also contended that Ofcom had acted irrationally in not accepting the proffered help of the Equality and Human Rights Commission (EHRC), unlike the Advertising Standards Authority (ASA), which had accepted such help.  Finally, TM contended that the decision not to accept TM’s expert evidence as adequate evidence of harm was irrational.

The statutory framework and the Broadcasting Code

Ofcom’s duties are set out in the Communications Act 2003 (2003 Act).  It is required, as part of its principal duty, to further “the interests of citizens in relation to communications matters.”  Among other things, it is required to secure the application, in the case of all television and radio services, of standards that provide adequate protection to:

1. “members of the public from the inclusion of offensive and harmful material in such services”;⁴ and
2. “members of the public and all other persons from both –
   1. unfair treatment in programmes included in such services; and
   2. unwarranted infringements of privacy resulting from activities carried on for the purposes of such services”.⁵

Part V of the Broadcasting Act 1996 (1996 Act) deals with Ofcom’s code for avoiding unjust or unfair treatment.  Under section 111(1) of the 1996 Act, a fairness complaint may be made by an individual or body of persons, but has to be made by “the person affected”.  Section 130 defines “the person affected” as one who was a participant in the programme who was the subject of the alleged unfair treatment or who had “a direct interest in the subject-matter” of the alleged unfair treatment.

Part 3 of the 2003 Act deals with Ofcom’s standards code.  Section 319 provides that Ofcom has a duty to set such standards for the content of programmes to be included in television and radio services as appear to Ofcom best calculated to secure the “standards objectives”, which include protection of under-18s and the application of “generally accepted standards … to the contents of television … services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material”.

Further to these statutory obligations, section 1 of Ofcom’s Broadcasting Code deals with the protection of under-18s, while section 2 deals with harm and offence, and section 7 deals with fairness.  The foreword to section 7 says that it (and section 8, on privacy) are different from other sections of the Code: “They apply to how broadcasters treat the individuals or organisations directly affected by programmes, rather than to what the general public sees and/or hears as viewers and listeners.”

Grounds for judicial review

TM challenged Ofcom’s decision on four grounds, each of which were addressed by Mr Justice Ouseley in turn.

Ground 1: fairness in the standards decision

TM submitted that the standards complaints procedures were unfair and lacked rational justification.  TM argued that the nature of the complaint and the allegations of harm to children required either the application of the fairness complaints procedure or a modification of the standards procedure to the same effect, so that the complainant, like the broadcaster, had an opportunity to comment on the Preliminary View.  TM maintained that it had been prejudiced by this difference in procedures because substantial further representations and evidence would have been made and provided.

Ouseley J found that the key issue was whether it was unfair for the opportunity to comment on an adjudicatory body’s preliminary view to have been provided to one party only, which depended on the purpose and effect of its being made available to one party only.  In this instance, the judge considered that Ofcom’s fairness and standards complaints procedures differed for good reason.  The fairness procedures dealt with complaints from people who were actually affected by the unfairness alleged, and so the Preliminary View concerned an affected complainant as much as the broadcaster.  A standards complaint, on the other hand, could be made by anyone.  The broadcaster was directly affected by the outcome of a standards complaint, but a complainant might well not be affected at all.  Ofcom, perfectly reasonably in the judge’s view, did not regard standards complaints as involving adjudication on or determination of the grievances and rights of individual complainants.  Its task was to resolve “the objective question of whether a broadcaster has breached” a standards requirement of the Code.

TM also contended that Ofcom should have departed from the standards complaints procedures in the circumstances of this case, on the basis of the introduction to the standards complaints procedures, which states:

“If Ofcom considers it is necessary to depart from these Procedures in any material respect in a particular case for reasons of fairness and/or in order for Ofcom properly to consider a complaint(s) or carry out an investigation, it shall write to the broadcaster concerned (and any other relevant parties) in advance setting out the nature/extent of its departure, its reasons for doing so and seeking the relevant parties’ response.”

Ouseley J accepted Ofcom’s submission that this reference had not been intended to increase flexibility, but to reduce uncertainty over the procedure that would be adopted.  It was also intended that any departure should be decided at the start of the procedure.  Ouseley J concluded that the alleged potential source of unfairness had been known about at the outset, had been made clear throughout, no variation to it had been sought and no objection had been made to it.  It was for the complainant to put its complaint forward, and there was no reason for it to be given “a second bite at the cherry”.

To demonstrate that it had been prejudiced, TM submitted a variety of material to show what it would have said. These included a witness statement from an expert expressing surprise that Ofcom had not sought further information from him or TM before “rejecting” his report, especially as C4 had not challenged it.  Ouseley J noted, however, that it had not been rejected: Ofcom’s conclusion had simply been that it did not demonstrate harm.

Ground 2: failure to obtain further information from TM

TM submitted that Ofcom had unlawfully failed to apply the paragraph in its standards complaints procedures that provides: “If in any case where Ofcom considers that it is necessary to obtain further information to ensure that it can fairly and properly prepare its preliminary view, Ofcom may seek such information before preparing that view.”

In TM’s view, Ofcom ought to have used this provision to draw TM’s attention to what it was concluding on a preliminary basis about the weaknesses of the complaint.

Ouseley J dismissed this argument: it could not be the case, where Ofcom was not persuaded by the evidence submitted by a complainant of a breach of the Code, that it should then undertake further investigations to ensure that there was no additional evidence of breach that the complainant had failed to put forward.

Ground 3: failure to use other powers to establish that harm had not been caused to children

TM contended that Ofcom was under a duty to ensure that children were not harmed by broadcasts: this, in reality, was a submission on which Ofcom ought to have sought the assistance of the EHRC.

The EHRC had written to Ofcom on 8 July 2013 asking when the investigation would be concluded, referring to the part it had played in the ASA decision and saying: “If Ofcom would like the Commission to provide any input please let me know and I will be happy to help.”  Ofcom thanked the EHRC for its offer of assistance, but did not consider it necessary at that time.

Ouseley J could see no reason for holding that response to be unlawful, and requiring Ofcom to seek assistance in dealing with its specialist statutory functions.  He did not consider that there was anything irrational in Ofcom’s response.

Ground 4: irrationality in conclusion that TM had not adduced sufficient evidence of harm to children

TM submitted that the evidence of an expert, submitted with the complaint, had been compelling and related directly to the broadcasts, and that Ofcom had no choice rationally but to accept it, and so to accept that the programmes had caused harm.

Ouseley J noted that the expert’s evidence drew together and commented on observations from others, notably the Traveller Education Support Services staff about changes in behaviour by non-Traveller school children to Traveller school children after the programmes were broadcast.  Almost all of these were at a very general level.  He noted that the email which the expert had sent out to obtain evidence showed that he had sought only negative feedback, and that there had been only five responses, without any indication of how many had been sent the emails.

Ouseley J found that Ofcom’s approach to the evidence had been perfectly rational.  He noted that it would have to be a very clear case for the judgment of the specialist regulator to be held irrational, and so unlawful, on a topic involving harm, context and freedom of expression, and that this was “nowhere near such a case”.

Accordingly, the application for judicial review was dismissed.

Comment

Judicial reviews of Ofcom’s findings on editorial content are a rare occurrence: only three have gone to trial since Ofcom assumed its statutory powers on 29 December 2003.⁶  Of those, this is the first that has been brought by a complainant.  The others were brought by a broadcaster, which had been sanctioned by Ofcom for breaches of the Code, and by a presenter, whose contract with a radio station had been terminated after a live interview (which was later found by Ofcom to have breached the Code).  None of the three judicial reviews has been upheld, and each has described Ofcom as being better placed than the court to assess matters falling within the remit of the specialist media regulator.

The Traveller Movement decision is also notable for its inconsistencies with Ofcom’s admittedly anomalous decision in 2009 to investigate, and ultimately to fine, the BBC in relation to breaches of section 8 of the Code in two editions of The Russell Brand Show, in the absence of a first-party complaint from either of the “persons affected” (namely Andrew Sachs and his granddaughter).⁷ In the Traveller Movement case, counsel for Ofcom made much of the differences between Ofcom’s procedure for investigating standards complaints (which, she submitted, focuses on what was broadcast and how it measures against the Code and is not an adversarial process) and that for investigating fairness complaints.  Ouseley J commented, however, that Ofcom’s task in a fairness complaint is “to determine the grievance and right of the individually affected complainant.”  Although obiter dicta, that rationale may well preclude Ofcom from investigating fairness and/or privacy breaches in the future without actually receiving complaints from the persons affected.

Eleanor Steyn, Associate, Michael Simkins LLP