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What the BBC called a “sorry incident” has also turned out to be an expensive one for licence fee payers. Ofcom’s Content Sanctions Committee recently decided to impose a hefty £150,000 fine on the BBC for serious and repeated breaches of the Ofcom Broadcasting Code rules relating to offence and unwarranted infringement of privacy.
The decision of course relates to the infamous broadcast on Radio 2 of two editions of The Russell Brand Show in October 2008. Thanks to extensive media coverage, the details of the broadcasts are well-known. What is worth noting, however, are the factors that led to the level of financial penalty imposed.
Background
During two editions of The Russell Brand Show broadcast in October 2008 offensive references were made to the actor, Andrew Sachs, and to his granddaughter, Georgina Baillie, which resulted in their privacy being infringed.
The first edition had been pre-recorded three days before broadcast and was scheduled to contain a telephone interview with Andrew Sachs. He was unavailable when contacted during the recording, which led to a number of telephone calls being made to him and a series of lewd messages, including an improvised “apology” song, being left on his answerphone by Russell Brand and Jonathan Ross. Between the broadcast of the first and second editions of Russell Brand, the Controller of Radio 2 received a complaint about the first programme from Andrew Sachs. However, she was unaware that any complaint had been received until after the broadcast of the second programme, in which further references to Andrew Sachs and Georgina Baillie were made and in which the “apology” song was played again.
Ofcom received nearly 2,000 complaints about the programmes, while the BBC received nearly 43,000. The BBC told Ofcom that the broadcasts should never have happened, that they were unacceptable and that they demonstrably failed to meet the BBC’s editorial standards.
Having investigated the case, Ofcom found that both programmes breached the Ofcom Broadcasting Code rules relating to offence and infringement of privacy. Ofcom considered the breaches to be serious and repeated and therefore referred the case to its Content Sanctions Committee for consideration of the imposition of a statutory sanction.
The Committee’s findings
The Committee began by stressing its commitment to allowing broadcasters to explore creative freedom without undue interference. It then went on to crucify the BBC for broadcasting “exceptionally offensive, humiliating and demeaning” material that also represented “infringements of privacy of the most serious nature”.
The Committee considered the references to Andrew Sachs and Georgina Baillie became “increasingly explicit, offensive and gratuitous” during the course of the first programme. This had a cumulative effect, which resulted in the broadcast of the material overall being “exceptionally offensive, humiliating and demeaning”. The Committee said that the seriousness of the breaches relating to offence was compounded because the first programme was pre-recorded, giving the BBC ample time to comply the programme thoroughly. In addition, the Committee considered that the “apology” song, which was played in the first programme and then repeated in its entirety in the second programme, trivialised and compounded the severe offence already caused by the presenters’ remarks. In reaching its conclusions, the Committee noted that Ofcom was not obliged to quantify the level of offence actually caused. However, it considered that any evidence as to the degree of offence likely to be caused might be a relevant factor and, in this case, the Committee considered that it was appropriate to take some account of the large number of complaints made to Ofcom and the BBC after the programmes were broadcast.
The Committee considered that the breach of the Ofcom Code rule relating to privacy was “especially serious”. It found the nature of the information disclosed was highly personal, intimate and sensitive and that it was revealed in the context of Andrew Sachs and Georgina Baillie being named and so clearly identifiable. The Committee considered that there was no justification whatsoever for the “gross breaches of privacy” and referred to the BBC Trust’s own assessment that the broadcast of the remarks about Mr Sachs and his granddaughter were “an unacceptable and deplorable intrusion into their private lives”.
The Committee also found that the repetition of the “apology” in the second programme meant that the intimate information revealed in the first programme was revisited, so that the seriousness of the earlier breaches of privacy was exacerbated. The Committee decided that the seriousness was also increased by the fact that the BBC had received a complaint from Andrew Sachs two days before the second programme was broadcast and had therefore had an opportunity to take corrective action.
Having received some very sorry admissions from the BBC relating to failures of editorial control and judgment and failures of compliance systems, the Committee suggested that there were no fewer than six flaws within the Radio 2 compliance systems for Russell Brand. These were:
- a lack of clarity about the exact role of someone who was a senior figure at the agency that represents Russell Brand acting as the Executive Producer of the programmes;
- the failure of the Executive Producer to attend a BBC Safeguarding Trust compliance course, despite this being a condition of the production contract;
- the Executive Producer’s failure to sign off compliance forms for these two editions of Russell Brand, despite this being another condition of the production contract and, further, the BBC did not know whether he had signed off previous forms;
- there was no proactive testing and insufficient monitoring of the compliance systems in the BBC Audio and Music Group in general, and in particular relating to Russell Brand after the series became an independent production from May 2008;
- an unacceptable conflict of interest for the Producer in day-to-day charge of the series when he was seconded from the BBC on a part-time basis to the independent production company that made Russell Brand; and
- a lack of clarity about who at the BBC had “hands-on” editorial oversight of the series.
The fact that the senior management of BBC Radio always regarded Russell Brand as a “high risk” series greatly concerned the Committee, as did the BBC’s failure to honour assurances given to Ofcom that the compliance systems for BBC Radio would be improved after a series of Ofcom statutory sanctions were imposed on the BBC in July 2008 for mishandling competitions. The Committee concluded that it appeared that Russell Brand’s interests had been given greater priority than the BBC’s risk management systems.
The Committee’s decision on the level of fine
Having decided that the Russell Brand case breaches were sufficiently serious and repeated to merit a significant financial penalty, the Committee then had to come up with a figure that was in line with its previous decisions and that would be substantial enough to ensure the BBC continued its efforts to make its compliance with the Code appropriately robust, and to act as an incentive to other broadcasters. It should be noted that, whilst the BBC is Britain’s largest public service broadcaster, the maximum fine that Ofcom can impose upon it is limited to £250,000 on any occasion, because the BBC is funded by the licence fee.
The Committee considered that the circumstances that had arisen in relation to the Brand case were “unprecedented and exceptional”. It did, however, find its decision in Kiss FM (20 June 2006) of assistance because that case involved a very serious breach of the fairness and privacy rules and a series of contraventions of the rules on harm and offence.
The fairness and privacy breach in Kiss FM related to a prank phone call transmitted live. A member of the public had inadvertently left his phone number on the voicemail of a Kiss FM presenter, believing it to be that of the HR officer of a prospective employer. The presenter then telephoned him, posing as the HR officer, and made a series of very disparaging and distressing comments to him about his employment prospects. The fine imposed for this fairness and privacy breach was £75,000. The Committee considered that the privacy breaches in the Brand case were more serious than previous privacy breaches that it had recorded, including Kiss FM, mainly because the first programme was pre-recorded, the breaches did not involve fine editorial judgment, the BBC failed to apply its existing compliance procedures effectively, the breaches occurred despite previous assurances given to Ofcom and were repeated and they involved two individuals.
The Committee also considered in Kiss FM a series of breaches of the standards rules relating to offensive language and sexual content. The penalty imposed for these breaches was £100,000 – a figure that the Committee noted was partly to protect the under-eighteens because the offensive language and sexual content was broadcast at breakfast time (a factor not present in the Brand case). In the Committee’s view, the offence breaches in the Brand case were less serious than those in Kiss FM.
The Committee considered that the following factors tended to increase the level of the fine:
- the breaches in the second programme occurred after the BBC had received a complaint from Andrew Sachs;
- senior management responsible for Radio 2 ought to have known that breaches of the Code were likely to occur when compliance procedures were so lax that (as in this case) staff did not seek to apply them appropriately;
- the extent of the BBC’s failures to apply its compliance systems in general; and
- there had been ample time to ensure robust compliance of the first programme because it had been wholly pre-recorded three days in advance. The Committee regarded this as a significant aggravating factor.
The Committee considered that the following factors tended to decrease the level of the fine:
- once alerted to the compliance problems in this case, the most senior management at the BBC acted swiftly to mitigate the offence and damage caused: the BBC apologised publicly at an early stage and admitted that there had been failures of editorial judgment and compliance systems; the Controller of Radio 2, the Radio 2 Head of Compliance and Russell Brand himself resigned; and Jonathan Ross was suspended and publicly apologised upon his return to air;
- the BBC had taken a series of additional actions to improve compliance, including issuing new guidance on compliance for pre-recorded programmes, recruiting a new full-time Head of Editorial Standards for Audio and Music and implementing new procedures for content made by talent-owned independent production companies; and
- the BBC had cooperated with Ofcom’s investigation.
Having considered the relevant facts and all the representations made by the BBC, the Committee decided to fine the BBC £80,000 for its failure to observe the privacy “standard” and £70,000 in respect of the breaches of the Code rules relating to offence. It also directed the BBC to broadcast a statement of Ofcom’s findings on Radio 2.
Comment
The whys and wherefores of the Committee’s decision are reflected in the level of financial penalty imposed on the BBC. A substantial financial penalty was imposed mainly because of the nature and number of offensive remarks made, the “gross” infringements of privacy, the repeated contraventions of the Code, the numerous and significant failures in the BBC’s editorial control and judgment and its compliance systems and the fact that the BBC appeared to have given its talent’s interests greater priority than its own risk management systems.
Although the BBC did not dispute that the Code breaches should be referred to the Committee, it did make representations in an attempt to soften the financial blow. It has to be said though that these pleas in mitigation paled in comparison to the catalogue of disasters exposed by the Russell Brand broadcasts. In particular, the effectiveness of the BBC’s pleas appears to have been substantially diminished by the BBC’s failure to honour assurances given to Ofcom a year ago that the compliance systems for BBC Radio would be improved.
It is also worth noting that this is only the second time that Ofcom has imposed a fine in respect of unwarranted infringement of privacy, the first being Kiss FM. Over the last two years, Ofcom has significantly ramped up the number of cases being considered for sanction and the number and amount of financial penalties that it has imposed. Notably, Ofcom has imposed some very significant fines on television and radio broadcasters alike for the unfair conduct of viewer and listener competitions. In light of this, it is likely that more fines for infringement of privacy will be imposed in the future, unless, of course, broadcasters are all rigorous about compliance in this area.
Finally, Ofcom has never before recorded a breach of the Ofcom Broadcasting Code rule relating to privacy without receiving a direct first-party complaint from the individual(s) or organisation(s) directly affected by the broadcast. By virtue of the Committee’s repeated reference to the privacy “standard” in its decision, it appears that in recording a breach Ofcom relied on its broad duty under section 3 of the Communications Act 2003 to secure the application of standards for television and radio services that provide adequate protection from unwarranted infringements of privacy. Ofcom acknowledged that it did not have direct representations from a first-party complainant, but felt that it had significant and sufficient evidence (including a copy of Andrew Sachs’ complaint to the BBC) to reach a considered view that a financial penalty was appropriate. It remains to be seen whether Ofcom will record any further breaches of the Ofcom Broadcasting Code rule relating to privacy against broadcasters in the future in the absence of first-party complaints – it is an interesting decision for Ofcom to have made given its potential to open the floodgates to those not directly affected by programmes complaining about infringement of privacy of others.
Eleanor Steyn
Article to be published in the Entertainment Law Review. Reproduced here with the permission of Sweet & Maxwell.
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