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Biased BBC – A More Rigorous, Impartial Regulator Needed

As the BBC’s bias against Israel resurfaced this week in the Today programme, Ofcom has again been in the spotlight. Clive Thorne explains why and how the regulator’s powers must be restricted to restore accountability and judicial oversight.

To Ofcom’s failure to regulate the BBC, can be added its failure to observe its own duty of impartiality. That failure again emerged before Easter when it ruled in March against GB News that five programmes hosted by MPs Jacob Rees-Mogg, Esther McVey and Philip Davies breached its impartiality rules. It did so on the basis that a politician cannot be a newsreader or reporter in a news programme unless, exceptionally, it is editorially justified.

That was a highly political decision. Yet Ofcom itself had been found lacking in impartiality by the DCMS in its BBC Mid-Term Review (MTR) of 22 Jan 2024. The review’s recommendations on the BBC and Ofcom (in respect of the BBC’s future regulation and complaints framework) indicate both have substantial failings and if anything, understate them. It suggests a ‘major challenge for the BBC continues to be  impartiality’, but should have referred to the BBC’s ‘major failing’  to comply with the obligation of ‘due impartiality’ and its lack of an independent and effective complaints structure.  The review also highlighted the need for Ofcom to hold the BBC to account in ‘a more robust way’, including on its impartiality responsibilities, yet the recommendations, merely proposed ‘clearer explanations of the process and the roles of both the BBC and Ofcom’, suggesting the BBC ‘can do more to ensure audiences feel their complaints will be fairly considered.’  For Ofcom the MTR proposed a new legally binding regulatory function to review independently more of the BBC’s complaints decisions and improve the experiences of complainants.

It is clear that Ofcom in its present role cannot be permitted to continue. But it seems that the DCMS establishment when faced with problems (particularly those raised by the Online Safety Act) decided to pass matters requiring a determination to Ofcom without taking account of the adequacy of the organization to act independently and judicially It is now a disproportionately large and unaccountable regulator with essentially judicial obligations, but performing those as a regulator rather than judicially.  Its jurisdiction under the Online Safety Act involves important issues of freedom of speech and expression which, staffed by civil servants, it is ill-equipped to determine. Its failure in respect to exercise of its statutory obligations, acting as regulator rather than judicially were again highlighted by the GB News investigations. The problems have been the subject of much analysis, not least in the government’s DCMS Mid Term Review (MTR, March 2024) about the failings of the BBC Complaints Framework and its interaction with Ofcom, again acting as regulator on matters requiring judicial determination.

During the passage of the ‘highly unsatisfactory’ Online Safety Act Bill, Lord Frost stated that ‘the Secretary of State and Ofcom will have unprecedented powers to define and limit speech with limited parliamentary and judicial oversight.’  Meanwhile a GB News representative in response saw Ofcom’s political host decision it as a ‘chilling development for all broadcasters, for freedom of speech, and for everyone in the United Kingdom’ going against established precedent and; raising serious questions about Ofcom’s oversight over its own regulations…’

Many of these concerns could be addressed by removing from Ofcom its jurisdiction to determine breaches of broadcasting obligations and instead jurisdiction given to a newly constituted Tribunal chaired by an experienced lawyer, perhaps with lay members and obliged to act in accordance with the rules of natural justice and with an appropriate appeal route, if required, to the higher courts.

In the case of BBC complaints Ofcom’s jurisdiction should be abolished in its entirety and, instead of the Stage 2 appeal to the Executive Complaints Unit, there should be an appeal to an ad hoc independent tribunal with a further right of appeal to an appeal tribunal chaired by an experienced lawyer, again with lay members including a BBC representative. The successful independent press complaints procedure under the auspices of IPSO and IMPRESS including Independent Review procedures is a helpful precedent.

Underlying Ofcom’s role, as was shown by the GB News decision, is a justifiable concern that matters involving freedom of speech and the freedom of broadcast are now being determined by a regulator not acting independently or judicially, but implementing some perceived political or governmental obligation.

Clive Thorne

Clive Thorne is a lawyer specialising in intellectual property including patents, copyright, trademarks, breaches of confidence, privacy and data law, as well as IT Litigation Arbitration and administrative law. He practises in the UK and internationally, with experience particularly in the Far East, and is admitted to practise in Hong Kong and Australia. He has handled disputes in all relevant courts including the High Court, IPEC, Court of Appeal, Privy Council and UK Supreme Court. He writes and lectures on IP law and recently co-authored A User's Guide to Copyright. (Seventh Edition).

 

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