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Are legal fights tougher with print media over broadcast?

The primary reason why crisis PR practitioners will have more dealings with Fleet Street compared to broadcasters, is the stark contrast in the effectiveness of the regulation of broadcast output against the print press.

I know this also because alongside my work as a crisis PR lawyer, for over 30 years I have legalled out TV content of various sorts and know that compliance with the Ofcom Code is regarded as essential because Ofcom's far superior record of enforcing that Code, compared to the IPSO equivalent.

There are two key provisions in the Ofcom Code. Both are found in Section 7.7.1 reads as follows: "Broadcasters must avoid unjust or unfair treatment of individuals or organisations in programmes".

This provision takes in an obligation to accuracy but goes beyond the IPSO Code because it also stipulates that those who are the subject of adverse comment in TV programmes must not be treated "unfairly".

The second key provision is found at paragraph 7.11: "If a programme alleges wrongdoing or incompetence or makes other significant allegations, those concerned should normally give an appropriate and timely opportunity to respond".

I will illustrate by way of two examples how the provisions of the Ofcom Code can and should be deployed to good effect to prevent a looming PR crisis occurring – prevention in PR terms being infinitely preferable to any attempted cure.

I undertook extensive pre-broadcast correspondence with ITV, who were making a potentially very damaging programme about a major corporate client. I had the advantage of ITV having been a past client, and my knowing their senior in-house lawyer personally.

As I pressed ITV on both the content of the programme, and its methodology (including its use of expert evidence), it became clear to me that ITV has chosen the wrong type of expert to substantiate the serious allegations which they wished to make against my client. As I pressed ITV hard on this, they eventually abandoned the programme altogether.

By way of a second example of how the Code can be deployed effectively, a financial services client was going to be the at the wrong end of some serious allegations which were going to be made by BBC's flagship Watchdog consumer programme. However, it had not done its homework with sufficient expedition, and a programme to be broadcast on the Wednesday evening, the allegations only came in to the client on Tuesday afternoon.

I wrote to the BBC in robust terms informing them that there was not time for my client to investigate and respond in any detail to the allegations which were the subject of the programme, and consequently the BBC had not complied with its obligations under paragraph 7.11 of the Code. The BBC reluctantly agreed. It dropped that element of the programme, which was not then revisited in a subsequent edition.

The whole purpose of the Ofcom Code is to prevent broadcasters subjecting companies and individuals to “unfair” treatment in programmes. The Code also expressly provides that those who are threatened with such “unfair treatment” must have adequate prior notice.

The Code is given greater strength because all broadcasters know that they are much more vulnerable to a successful libel claim of they do not comply fully with their Ofcom obligations.

One of the other advantages of doing crisis work vis à vis broadcasters is that you normally have a matter of days within which to work, rather than the matter of hours as is often the case with newspapers. It is impossible to exaggerate how important it is to make the very best use of this time to give effect to the intentions of Ofcom when it published its Code, for which a detailed knowledge of its terms, the way editorial decisions are made by broadcasters, and the interaction between it and the law are all essential.

Written by

Jonathan Coad, crisis PR lawyer, Coad Law

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