Ofcom over-reaction to Kyle show tragedy?

Moral panics rarely make good laws or regulation. The tragic death of Steve Dymond, who committed suicide after taking a lie detector test on The Jeremy Kyle Show, is the latest example. Ofcom is now proposing to introduce rules in the Broadcasting Code which will create potentially onerous new duties on all British broadcasters – both TV and radio, and covering behemoths like the BBC to community radio stations – to take ‘due care’ of all adults participating in their programmes. Our consultant, former Ofcom Standards executive, Trevor Barnes, explains why broadcasters need to get up to speed urgently on Ofcom’s new proposals, which will be discussed at a special seminar at SMB on 25 September 2019.

Many of the large broadcasters have now woken up to the worrying implications of Ofcom’s proposals, set out in a consultation (‘Protecting participants in TV and radio programmes’) which closes on 23 September 2019. But many smaller radio and international broadcasters have still to understand them. Hopefully this blog will help make the implications clear.

The two new rules would be added to Section Two of the Code. The first would state that ‘Due care must be taken over the welfare, wellbeing and dignity of [adult] participants in programmes.’ The second, ‘Participants must not be caused unjustified distress or anxiety by taking part in programmes or by the broadcast of those programmes.’ The only carve outs from the new duties are drama programmes, and the duties would not be owed to presenters and reporters.

In my view, and that of the broadcasters who are aware of the implications, Ofcom’s current proposals are disproportionate and wrong-headed, with significant process and resourcing implications. Any viewer or listener, and any individual who participates in any broadcast item, will be able to make a complaint to Ofcom if they think someone or the complainant has not been shown ‘due care’. Even if the complaint is ends up being meritless, in almost every case Ofcom will have no alternative but to ask the broadcaster for comments about what went on behind the scenes. This in turn will potentially oblige all production staff to keep new records to enable the broadcaster to demonstrate to the regulator that ‘due care’ was taken.

Just imagine the possible implications for radio ‘phone-ins’ alone. What additional checks may need to be made on all adults about to be put on air to see if they are vulnerable? How can ‘shock jocks’ still shock if they risk all the time causing ‘unjustified’ distress or anxiety to people who call in?

Ofcom says it will issue new guidance on the new rules to ensure they ‘reflect’ the right to freedom of expression but in the consultation it is already discussing measures a broadcaster would need to consider taking before, during and after production. The equivalent guidance for Rules 1.28 to 1.30 (which these new proposals for adults are modelled on), covering due care of under-eighteens in programmes, has grown steadily over the years and is now over eight pages long. There is a serious risk any guidance for the new 2.17 and 2.18 rules would be as long and complicated and onerous for broadcasters – but without the same justification.

The legal basis for the new rules is also somewhat tenuous. Every Section of the Code at the moment is based on a standards objective set out in the 2003 Communications Act. Rules 1.28 to 1.30 (rightly) protecting children are based on Ofcom’s specific powers and duties to protect under eighteens. There are no equivalent duties and powers to protect adults taking part in programmes.

There is a case for UK broadcasters to take more care of potentially vulnerable adults who participate in their programmes. But these unduly onerous and disproportionate rules are not the answer. Not least they seriously risk broadcasters not making programmes reflecting the real world we live in, peopled by vulnerable adults and where individuals do become anxious and distressed.

Broadcasters would be well advised to read the Ofcom consultation and propose new rules carefully, and consider sending the regulator their reaction by the 23 September 2019 closing date. If broadcasters want these new rules scrapped or amended they need to tell Ofcom and why.