Traveller Movement v Ofcom & Channel 4

Channel 4 broadcast two series of a programme Big Fat Gypsy Weddings (BFGW), and another series Thelma’s Gypsy Girls (TGG).

The Traveller Movement (TM) complained to Ofcom about the second series of BFGW, one programme from the first series, and TGG.  TM argued that the programmes breached the provisions of the Ofcom Broadcasting Code (‘the Code’) in that they were unfair, harmful (particularly to children and young persons) and offensive in a number of important respects.

Ofcom split the complaint into two parts: complaints about fairness were dealt with in accordance with Ofcom’s fairness and privacy procedures.  These allow for both the broadcaster and the complainant to comment on Ofcom’s ‘preliminary view’, before Ofcom reaches its final decision.  In contrast, matters of harm and offence were considered in accordance with Ofcom’s standards procedures, which provide for Ofcom’s preliminary view to be seen and commented on only by the broadcaster, before Ofcom’s final decision.

Ofcom made two decisions: one concerning fairness; the other concerning issues of harm and offence.  All aspects of the complaint were rejected.

TM sought Judicial Review of Ofcom’s standards decision, asking the Court to quash the decision on the basis that it was unlawful on a number of grounds.

Whether, as alleged by TM:

1) Ofcom had acted irrationally by dismissing TM’s evidence regarding harm caused by the broadcasts and by concluding that TM had not adduced sufficient evidence to find a breach of the Ofcom Broadcasting Code;

2) Ofcom had acted unreasonably by not using its discretionary powers under the Standards procedures to seek out further information from TM (or otherwise) regarding harm caused by the broadcasts, in circumstances where Ofcom had found insufficient evidence of harm to justify a finding of breach;

3) Ofcom had acted irrationally and thus unlawfully in rejecting an offer of assistance from the Equality and Human Rights Commission;

4) The standards procedures are unfair and breach natural justice in that complainants are denied the opportunity to comment on Ofcom’s preliminary view, whereas broadcasters do have such an opportunity; further Ofcom had acted unreasonably in failing to vary the standards procedures in this case and seek TM’s comments on the preliminary view.

Dismissing the application:

1) Ofcom’s conclusion that there was no clear evidence of harm attributable directly to the broadcasts, even if perhaps not the only possible assessment of the evidence, was “certainly rational”;

2) It was not unreasonable for Ofcom not to seek further evidence from TM when it arrived at the preliminary view; further, Ofcom is not under any duty to look beyond a complaint and carry out its own independent investigations and research into whether harm has been caused by broadcasts. Ofcom is entitled to take the view that a complainant has submitted all relevant material at the time of complaint;

3) It was not irrational for Ofcom not to seek the assistance of the EHRC;

4) Ofcom standards procedures are not unlawful. It was neither unfair nor prejudicial that the standards preliminary view was seen only by Channel 4, or that Ofcom chose not to vary the procedure in that respect. Standards complaints can be made by anyone and do not involve the determination by Ofcom of the rights and grievances of individual complainants. Accordingly complainants are in a different position to broadcasters, which as licensees are directly affected by the outcome of standards decisions.  This is in contrast to fairness complaints which by law can only be brought by a “person affected” and thus involves a decision with directly affects both complainant and broadcaster.

This judgment is helpful in setting out the boundaries of Ofcom’s duties in investigating Standards complaints and, mindful of different remits and powers, will be of wider application to the procedures of other media regulators.

An interesting obiter observation of Ouseley J is that if representations by a broadcaster on the merits of a preliminary view were to cause Ofcom to change its mind there ‘…might be a case … in certain circumstances’ that it would be unfair not to allow a complainant to comment on the change contemplated, although Ouseley J expressly did not form a view on that.