Law, Regulation & Policies
- The law of the land
- Contempt of Court
- Political Impartiality
- OFCOM and ASA regulations
- Your own station rules
With so many inexperienced broadcasters, any community radio station theoretically sits on a precipice of legal action. The most important laws covering broadcast radio are those addressing libel, contempt of court and political impartiality at election times. It is vitally important that presenters and in some circumstances even guests understand the broad principles of broadcasting laws, and that station management fully understand their legal obligations and, just as importantly, what to do when there is a transgression. The induction, volunteer agreement and training should all stress that a single careless slip of the tongue could result in the closure of the station.
If anyone says anything which defames an individual or organisation, the presenter and the station could both be sued for libel. A successful law suit could bankrupt a station overnight. To our knowledge there has never yet been a case of a UK community radio station being judged guilty of libel, and that is a credit to the sector. But it is no reason for complacency.
A statement is considered defamatory if it ‘unfairly damages reputation by exposing a person to hatred, contempt, shame or ridicule or makes a person likely to be avoided or shunned.’ The legal benchmark is whether a ‘reasonable person’ or ‘right thinking member of society’ would consider the victim less favourably as a result of the comment.
There are many misconceptions about libel.
- Libel does not prevent a broadcaster from reporting facts about an individual or organisation, providing they can prove them to be true (and the burden of proof lies with the accused).
- A comment is no less libellous just because it has already been made elsewhere. If a newspaper makes defamatory comments and a radio station reads the story on air, the radio station can be held to account – whether or not the newspaper is also sued.
- A comment can still be libellous even if it is reported as a rumour – or even if it is reported as being untrue. So the comment ‘Someone has just phoned in to say that Joe Bloggs the window cleaner has been washing windows with dirty rainwater, but we know for a fact he fills his bucket from the tap’ could still be held to be libellous as it is repeating a defamatory comment.
- The word ‘allegedly’ is no defence. In fact the opposite is true, a court may well consider it proof that the broadcaster was aware that the comment may be unjustified.
- A comment can be libellous even if the victim has the immediate right to reply and deny.
- Specific (and true) allegations are not libellous, but generalising from them can be. If presenter A says ‘Joe Bloggs washed my windows with dirty rainwater this morning’ that would not be libellous (if true). If presenter B adds ‘yeah, he’s always doing that’ this is a libel, if Joe Bloggs can demonstrate that at least sometimes he uses clean water.
- You can libel someone without naming them. If a presenter says ‘we hear a certain local tradesman has been filling his bucket with rainwater again, if you see someone armed with a ladder and bucket in the High Street area, watch he doesn’t splash your shoes.’ If Joe Bloggs can convince a court that a reasonable person would take this to be referring to him, he can successfully sue.
- Context is everything. A joke made on a comedy sketch show is much less likely to be considered libellous than a report on a news broadcast. However this is unreliable – if a court judges that the listener may not have realised the show was meant to be funny (and we’ve all heard comedy shows like that) the libel could still stand. Context also applies to the programme or programme part – the court will not take a statement out of context if the whole of the rest of the item or programme would have undermined the reasonable person’s belief in the contentious statement.
- Justification. ‘We were justified in saying this because it was true in substance and fact.’ – If the substance is sufficiently true, a court may overlook minor details of fact.
- Fair comment. If the contested remarks are statements of opinion rather than fact, it’s an acceptable defence to say that the comment was based on fact and made in good faith, without malice and on a matter of public concern.
- Privilege. A complex legal defence based on public interest, which normally only applies to the reporting of parliament, court activities, public inquiries etc. In common law it is based on the principle that a person may have a moral, legal or social duty to inform others about a third party. Defences of privilege rarely succeed in court.
British libel law is so complex and nuanced that not even specialist lawyers can always be sure which way a court would decide. The consequences of a libel can be so severe that the only sensible approach is to play safe at all times. Drum the following motto into your presenters heads:
“If in doubt, leave it out.”
“Engage brain before opening mouth.”
A final fact may serve to strike the fear of court into the most radical amateur shock jock – the person committing the libel can be sued in the same sitting as the radio station.
Contempt of court
Most people are broadly aware of the libel laws, even if they are vague or confused about the legal details. Contempt of court on the other hand is easily forgotten about, even by experienced broadcasters. This is rather frightening, as contempt is a criminal, not civil offence and you can not only be heavily fined for it, you can be sent to jail.
In general terms, contempt of court laws are there to ensure that the media do not prejudice fair trials. Most obviously this refers to court reporting – what journalists say about the day’s events at a trial. Court reporting is a specialised journalistic skill that should not normally be undertaken by a community radio volunteer without extensive professional training. But contempt of court can be committed by any broadcaster at any time between a person being charged with an offence and the end of a trial. It happens whenever someone passes judgement on a current court case or broadcasts information which may prejudice jurors – for example revealing the defendant’s previous convictions. Presenters can easily forget that the type of comments made daily in every pub and bus queue in the land can land a broadcaster in deep trouble.
For example, during the trial of Dr Harold Shipman at Preston Crown Court, two presenters on the city’s main commercial station, Rock FM, made comments suggesting that the accused was ‘guilty as sin’ and should ‘just admit to it.’ Fortunately for them, their management acted swiftly in correcting their comments on air and suspending the presenters from broadcasting. The judge at the subsequent trial told them that only this prompt response had spared the presenters a prison sentence.
As with libel, the only safe approach is extreme caution. It is a good idea to forbid outright your presenters from discussing any on-going court cases in process or pending. Hosts of phone-in shows in particular need to understand the importance of cutting off a contributor at the first hint that they might be about to comment on a case.
The Shipman case is referred to in this useful and still relevant BBC article from 2001. What were those DJ’s thinking?
While most of the rules regarding political impartiality are OFCOM regulations rather than laws, in the run up to elections (parliamentary, European, local government and regional assembly) the Representation of the People Act places particular restrictions on radio stations. Broadly, you are obliged to offer equal access to ‘main candidates’ and recognition of ‘other candidates’ in reports and debates. Currently the interpretation of this is that the ‘main parties’ are Labour, Conservative, Liberal Democrat and (in Scotland and Wales) the main nationalist parties. In Northern Ireland they are OUP, DUP, SDLP and Sinn Fein. Occasionally there may be local circumstances in which an independent or minor party has significant electoral support and they can also be classed as ‘main’ candidates. In practice this means:
- If you invite one candidate to contribute to a programme you must also give the same opportunity to their rivals,
- If you refer to one or several candidates or parties in a particular ward or constituency, you must also list all the other candidates and parties standing.
- Recorded clips of candidates (for example, an excerpt from a speech at a public meeting) must be balanced in such a way as to not give unfair advantage or disadvantage to one candidate.
- In phone-in shows, care must be taken to ensure that all views are represented fairly (although not necessarily to identical mathematical balance, minute by minute)
- In general, stations should ‘satisfy themselves’ that parties and election issues have been treated with due impartiality.
The law of the land:
- Forbids you from libelling any individual or organisation.
- Forbids you from prejudicing a court case.
- Obliges you to be impartial at election times.
- Is not to be messed with. If in doubt, leave it out.
Once again, the safest route is to expressly forbid your presenters from talking politics during election campaigns, except in well planned, carefully organised ‘campaign special’ programmes. While Ofcom might lack the resources to monitor your output at election time, you can bet that the candidates and their friends wont – so please devote proper resources to this issue in such a way as to obey the law but still do your best to promote political debate on your community.
Also see summary of OFCOM rules below.
A community radio station is unlikely to encounter many if any of these, but bear in mind that a station and its presenters can also break the law by violating:
- The Official Secrets Act
- The individual’s right to a private life under the Human Rights Act
- Incitement laws (to violence, to racial hatred etc)
[Authors note: this section was written before the newest Ofcom Code was issued. Therefore please take the following section as a general guide only – and read the newest Code before acting on anything in this section]
Until the summer of 2005, the OFCOM codes for radio broadcasters were divided into three categories
- Programming including news and current affairs
While the Engineering Code remains unchanged, the first two have now been merged into one broadcasting code for both radio and television operators, with ten sections, including more clearly specified rules for protection of the Under 18s.
The code applies to all of your broadcast material. In some respects the rules are quite specific, in others they are frustratingly vague. Issues of decency and obscenity in particular are entirely dependant on context. A song lyric which would pass unnoticed at 11pm might generate outrage and serious complaints at 11am, and OFCOM recognises this. It is worth remembering that there is still no ‘watershed’ on radio. Instead broadcasters are asked to make judgements about what is appropriate for the audience at any time of day or night. The code declares its objective as finding a balance between the right to free expression of opinion, allowing adults to make informed choices about what they will see and hear, and protecting audiences – particularly young people – from offence or harm.
The code is simpler than it was, but is nevertheless still a weighty document. Many of the legal obligations upon a radio station (such as adhering to the law and keeping a record of transmission) are specified elsewhere and are no longer repeated within the code. At first sight, it appears that the new code places less emphasis on abstract issues of ‘taste and decency’ and more emphasis upon protection from harm. It will be fascinating to see how this changes the nature of judgements made against (or indeed in favour of) broadcasters. It is standard to use the rule of precedent (i.e. previous judgements) as a guide to the limits of acceptable practice. It may be many months or even years before it becomes clear how the application of the new code will differ to past experiences. In the meantime, it would be highly advisable for community broadcasters to assume that transgressions that have been punished in the past will continue to be punished in the future.
The code is now divided into ten sections:
- Protecting the Under-Eighteens
- Due Impartiality and Due Accuracy and Undue Prominence of Views and Opinions
- Elections and Referendums·
- Commercial References and Other Matters
It is essential that you download and devour all 89 pages of the code, however unappealing that prospect might be. As an introductory guide, here are some of more relevant issues raised in each section.
Protecting the Under-Eighteens
- Material that might seriously impair the physical, mental or moral development of people under eighteen must not be broadcast.
- Radio broadcasters must have regard to times when children are most likely to be listening (eg breakfast and early evening schedules)
- You must take care not to broadcast material that may lead to the identification of young people involved in criminal cases, and particularly sexual offences, whether as witnesses, victims or defendants.
- At times when children are likely to be listening, and unless there is very strong editorial justification, radio broadcasters must avoid portrayals or discussion of alcohol, drugs, smoking and solvent abuse; violence, anti-social and dangerous behaviour; use of offensive language; issues of sex and sexuality; the occult and paranormal activity.
- If under-18s are involved in programme making, their physical and emotional welfare and dignity must be preserved at all times ( a big issue for youth community radio).
- Competition prizes must be appropriate to the age of the target audience.
Broadcasters must never:
- Condone, incite or encourage criminal activity or public disorder.
- Broadcast information or convey techniques that would be of use in criminal activities.
- Make payments to convicted criminals or anyone involved in criminal proceedings that relate to their conviction or such proceedings.
- Broadcasters must exercise responsibility when dealing with religious issues
- Religious beliefs must never be subjected to abusive treatment.
- The nature of religious programming must be made clear to the audience.
Due impartiality and accuracy
- News, in whatever form, must be broadcast with impartiality and accuracy.
- Significant mistakes in news items must be corrected on air at the earliest appropriate opportunity.
- The newsreader or reporter must not express personal opinions on matters of controversy.
- Views and matters of fact must not be misrepresented.
- Programmes based upon a presenter’s personal opinion must be clearly labelled as such
- Matters of political or industrial controversy must be covered with impartiality and encompass both (or all) sides of the dispute.
Elections and referendums
- Due weight must be given to the coverage of major parties during the election period. Broadcasters must also consider giving appropriate coverage to other parties and independent candidates with significant views and perspectives. [2015 update – Ofcom determined that UKIP is a major party alongside the Conservatives, Labour the Lib Dems and the nationalist parties in their nations]
- Candidates in UK elections and their representatives must not act as news presenters, interviewers or presenters of any type of programme during the election period.
- If a candidate takes part in an item about his/her particular constituency, or electoral area, then candidates of each of the major parties must be offered the opportunity to take part. (However, if they refuse or are unable to participate, the item may nevertheless go ahead.)
- Any constituency or electoral area report or discussion must include a list of all candidates standing and the name of the party they represent or, if they are standing independently, the fact that they are an independent candidate.
- Broadcasters must avoid unjust or unfair treatment of individuals or organisations in programmes.
- Except in exceptional circumstances, where a person is invited to make a contribution to a programme they should give ‘informed consent’ – that is:
- be told the nature and purpose of the programme, what the programme is about and be given a clear explanation of why they were asked to contribute and when (if known) and where it is likely to be first broadcast;
- be told what kind of contribution they are expected to make, for example, live, pre-recorded, interview, discussion, edited, unedited, etc;
- be informed about the areas of questioning and, wherever possible, the nature of other likely contributions;
- be made aware of any significant changes to the programme as it develops which might reasonably affect their original consent to participate, and which might cause material unfairness;
- be told the nature of their contractual rights and obligations and those of the programme maker and broadcaster in relation to their contribution;
- be given clear information as to whether and how they can request changes before broadcast.
- If a contributor is under 16 years of age, informed consent must come from a parent or guardian.
- Contributions should be edited fairly
- Makers of factual programmes should satisfy themselves that material facts are complete and accurate
- Fictional programmes or drama should not unfairly portray any real individual or organisation.
- Allegations of wrong-doing or incompetence should be accompanied by a right-to-reply for those involved.
- Deception of interviewees should only be used when there is strong public interest and there are no alternative methods available.
- If the purpose of a deception is entertainment (eg practical jokes and ‘wind-up calls’) then written consent of the ‘victim’ must be obtained before broadcast.
- Infringements of privacy must be warranted by public interest – e.g. exposing crime, or protecting public safety.
- An individual’s private address or contact details should not be broadcast without permission or strong public interest justification.
- If an individual or organisation’s privacy is being infringed, and they ask that the recording or live broadcast be stopped, the broadcaster should do so, unless it is warranted to continue in the public interest.
- Conversations or telephone calls may only be recorded with the participant’s permission, unless warranted by public interest.
- People in distress, whether or not in a public place, must be treated with sensitivity and should not be put under pressure to participate in broadcasts.
- People under the age of 16 should be protected from invasion of privacy, irrespective of their place in, for example, a notorious family or an event at school, and should not be questioned about private matters without parental consent.
The OFCOM broadcasting code:
- Came into effect on July 25th 2005
- MUST [!]be read with great care by station managers, trainers and programme managers, who must explain its main points to all broadcasters.
- Contains rules on everything from sponsorship to séances.
- News and current affairs programming may not be sponsored.
- You may not take sponsorship from anyone who is not permitted to advertise with the exception of gaming and betting companies (and those may not sponsor programmes aimed at under 18’s.)
- Sponsors may not have influence over the content or scheduling of programmes.
- References to the sponsor within the programme must be editorially justifiable.
- Sponsorship must be transparent to the audience, and clearly separate to advertising.
- Broadcasters must maintain editorial independence from advertisers or other commercial interests.
- Products or services may not be promoted through ‘product placement’ or similar means.
- References to brands providing products as prizes for competitions must be brief and secondary.
- Appeals for money to charities or the station itself are permitted, but it must be clearly specified for whom and to what purpose the money is being raised.
Record Of Transmission
Under the terms of every broadcast radio licence, it is specified that ‘OFCOM can require a company to provide it with a tape and/or transcript of broadcast material at any time up to 42 days after the broadcast was made.’
A record of transmission:
- Must be kept for 42 days after broadcast
- If it isn’t, you may face a heavy fine or even the loss of your licence.
If OFCOM receives a complaint about anything you have broadcast, you will need to be able to submit a copy of your broadcast for their consideration and judgement. If you are unable to do this, you are likely to face a heavy fine and possibly lose your licence (or at least find it unlikely to be renewed). There are many ways you can record your transmission (see R.O.T.) but the less scope for human error you have in your ROT system the better – OFCOM will not see ‘Fred forgot to put the tape on’ as a valid excuse.
Since the Toolkit was written, more stations have been found ‘in breach’ for failure to record their output than any other breach of the Code.
Ofcom, volunteers and your revenue
You are legally obliged to have a ‘mixed economy’ for your station the key rule is:
‘A minimum of 25% of annual operational income must come from sources other than on-air commercial funding and the value of volunteer inputs. Put another way, stations claiming a value for volunteer inputs and generating income from
on-air commercial sources must always generate at least 25% of their income from other sources (grants, donations, service level agreements etc).’
As of 2008, a crucial element for making this work is calculating your turnover if you seek to include volunteer time or ‘input’ as Ofcom puts it. There guide to this is here. It is clearly written and vital reading.
The Engineering Code
The Sponsorship and Engineering Codes:
- Should be read closely by the business manager and engineer respectively
- Can be comfortably ignored by everyone else.
The Engineering Code (see it in all its glory here) ensures that your radio station adheres to the technical obligations surrounding radio transmission equipment. It also sets out inspection procedures and other important information for your station engineer. He (and it will probably be he) should know the Engineering Code inside out. Everyone else can happily ignore it but obey the guy when he starts quoting it. See Technical Matters for more on this.
UK Code of Broadcast Advertising (BCAP Code)
In 2004 responsibility for ensuring that radio advertisements comply with the law was handed over from OFCOM to the ASA, bringing radio into line with TV, cinema, billboards etc. The ASA code applies to every advertisement carried on any radio station and is overseen by a committee called the Broadcast Committee of Advertising Practice (BCAP). The document is even more detailed and complex than the OFCOM Programming Code, and anyone involved in making or broadcasting advertisements on a community radio station should read the entire document closely. As an overview, the code spells out:
- Should be read in its entirety before you accept advertising
- What sort of advertisements need to be cleared in advance by the Radio Advertising Clearance Centre and which need only be cleared by station staff (all ads must be cleared by someone before broadcast).
- That advertising and editorial programming must be clearly distinguishable.That they must not be misleading or dishonest.
- How they can or cannot refer to rival products.
- That they must not offend taste and decency.
- How adverts can and cannot be worded.
- Where there are particular restrictions on advertising practice (e.g. with advertising aimed at children).
- Restrictions on political and religious advertising.
- Specific restrictions on how various products, such as financial services, can be advertised.
- Restrictions on how, when and which sensitive products can or cannot be advertised (e.g. sexually-related products, alcohol, tobacco, gambling, firearms etc)
The entire document is long (33 sections and 3 appendices in the 2014 version) and far from gripping reading, but a copy should be close to hand at any community radio station which carries advertising.
Your own rules
While station management and licence applicants need to be totally familiar with the law and OFCOM and ASA regulations, you probably won’t want to inflict all of that on your volunteers. Instead you should take the key components and make them into an easily understood set of broadcasting rules. These will form a central part of your volunteer agreement.
To protect yourself from OFCOM complaints, you should really set the standards of behaviour higher than the regulations demand. That will should give you a ‘buffer zone’ that allows you to rebuke or discipline a volunteer presenter before their behaviour generates a complaint to OFCOM. In particular your rules should cover:
- Swearing and obscenity. We would recommend forbidding it altogether. In our experience some volunteers will break this rule on a regular basis, particularly if they host specialist music shows in genres where ‘parental advisory’ stickers on records are common. But if you notice a high frequency of swearwords on a particular show you should give the presenter a dressing down, which should be formally noted in case of complaint (firm action prior to OFCOM calling you to investigate a complaint could lessen penalties). Most single releases with obscene lyrics will come with a ‘clean’ radio edit, and where available they should be used. Audio editors such as Cool Edit will make it relatively simple (although time consuming) to bleep out or reverse swearwords and the right volunteer will enjoy this sort of remixing.
- No preaching. Whether religious or political, it is dangerous to let presenters believe that they have a soapbox when they are on air. That is not their privilege. If they wish to air their personal opinions they should do it in the right place at the right time – it is one thing to have a volunteer contribute to a debate where there is a structured balance. It is quite another for them to interrupt their late night lounge show with an extended rant about their local MP. Of course if a show is plainly labelled as a soap-box or platform show then there could be exceptions and there are specific OFCOM rules on religious and political output.
- Drug references. As with swearing, references to drug use are common in some musical genres. Again, OFCOM would take into account the context (eg time of day and the nature of the likely listenership) but it is safer to ask your presenters to avoid such records wherever possible.
- Lay down specific rules for potentially problematic shows. At ALL FM there is a fortnightly show entitled Under the Pavement (see Box **) which serves the ‘activist’ community of the area. In other words they discuss and publicise community, environmental and political activism, sometimes in controversial areas such as animal rights. We would argue that such a show is entirely justified under the remit of a community radio station, but obviously it can sail close to the wind regarding OFCOM rules on impartiality. In such cases it is vital that the presenters see their role as facilitating debate within the community. They should maintain a balance of viewpoints, offer opportunities for response and keep a healthy distance between their role as presenters and their own personal opinions. It is one thing to announce that there is a political demonstration in the area next weekend, quite another to urge listeners to attend. Remember that the more controversial a subject of discussion might be, the more likely it is to generate complaints.
Rules for volunteers
- Should be tighter than OFCOM rules and the law.
- Should be clearly spelled out in your volunteer agreement.
- Should be clarified with presenters of potentially controversial programmes.
What to do when things go wrong
“The rules are so vague, when we started we were told that there was no watershed, but that some stronger language might be acceptable late at night. A lot of our material, both guests and music is quite edgy. So we’re always asking what can we get away with – not so much with OFCOM, but more what can we get away with without Phil [Korbel] or Alex [Green] phoning in and shouting at us. We once played a record called ‘Free the Airwaves’ by the American folk singer David Rovics which had the lyrics ‘F*ck the FCC’. I thought if it had been British and about OFCOM maybe not, but that this was all about multinational corporations owning radio stations and so I thought it was quite appropriate and acceptable for a community station. Next thing Phil Korbel is on the phone saying ‘take that off immediately.’ Whoops! And then we had a poet in the studio at the time, and she was asking ‘well can I do this poem?’ and I was saying, well that’s got the F-word and that’s got the C-word, erm, have you got any about daffodils or anything?
Now we over-compensate I think. Whenever we have guests in we have to explain you can’t say this or you can’t say that. It puts us in a difficult position sometimes, trying to get the balance of not getting the station into trouble without stifling debate.”
David, volunteer presenter, Under the Pavement, ALL FM 96.9
(Phil Korbel adds: “My concern with that song was that the swearword was in the chorus and could easily have been edited out. If they’d asked, I might have been happy for the poet to continue as it was a live broadcast and carried artistic justification. Community radio should be the home for radical output and it’s very much up to the broadcaster that their mission to push the envelope doesn’t take the station off the air. It can be done.”)
When OFCOM receive a complaint about a broadcast, they will always investigate. If they decide the rules have been broken they have the power to issue a fine or in serious cases take away the licence. They will consider the seriousness of the offence, but just as important to them will be the station’s response to it.
To take a famous recent-ish example, when Elton John turned the breakfast-time airways blue during an interview with Chris Moyles on Radio 1, OFCOM was inundated with complaints. OFCOM issued no punishment because of the swift and professional reaction of Moyles and his bosses. OFCOM’s statement said ‘in view of the nature of the error, the on-air apologies and the action taken, we consider the matter resolved’ Their reaction would certainly have been very different if it had been the presenter who swore. Even the reputation of Elton John will have been a factor – Radio 1 could not have been reasonably predicted an experienced mainstream media performer like him to behave so inappropriately. Had it been John Lydon or Noel Gallagher invited on at 9am the reaction may have been less sympathetic. The whole grisly episode can still be heard here – cringe-inducing for anyone involved in running a station.
Whenever they receive a complaint OFCOM will want to know:
- What happened? They will ask for a recording.
- How did the situation arise? Was it predictable or planned in advance? What procedures did you have in place to stop it happening?
- What was done to remedy it? Were apologies broadcast? How did you react to any complaint received to the station? Was the presenter disciplined?
- How are you ensuring it won’t happen again? Have you offered retraining? Have you changed or tightened your rules and procedures?
If you can give satisfactory answers to those questions, OFCOM are highly unlikely to punish any but the most serious transgressions.
When things go wrong
- Act swiftly and decisively.
- Remember that OFCOM are as interested in what happened before and after as they are in the offence itself.
Above all, don’t attempt to cover up or mislead any OFCOM investigation. They will certainly consider that a much more serious offence than the original one.
One final hint for this chapter. OFCOM, via its website, will allow you to subscribe to their Complaints Bulletin, which reaps rewards to any programmer who can spare ten minutes a month to scan through it. Mostly dull and TV-orientated but the radio gems are in there and will make you wonder why the radio station ever did what they did and sometimes how on earth they got away with it.