Getting the message out – political broadcasting in the UK
This is an extract of an interview given by Paul Herbert, Partner at Goodman Derrick to Giverny Tattersfield for a Lexis Nexis publication.
What are the rules around political broadcasting?
There is a long-standing ban on advertisements of a political nature on television or radio in the UK on the grounds that allowing political advertising in the broadcast media would give an advantage to the best financed candidates or parties. This ban dates back to the launch of commercial TV in the UK in the 1950s and in 2013 it survived a challenge to the European Court of Human Rights in Strasbourg.
Party political broadcasts (PPBs), party election broadcasts (PEBs) and referendum campaign broadcasts (RCBs), however, are specifically excluded from this ban and are designed to offset the differential ability of parties to attract campaign funds. This free airtime is provided prior to elections and referenda and provides qualifying parties with the opportunity to deliver their messages directly to the electorate through the broadcast media. Airtime for PPBs is provided to the major political parties on an annual basis.
Parliament, though section 333 of the Communications Act 2003, has charged Ofcom with the duty of making rules regarding the allocation, length, and frequency of such broadcasts, as well as identifying the broadcasters that are required to transmit them. Similar obligations are imposed upon the BBC in its agreement with the Department for Culture, Media & Sport and these are administered by the BBC Trust.
How are PPBs, PEBs and RCBs allocated? Are there any restraints on what the political broadcasts can be used for?
PPBs and PEBs may only be allocated to political parties registered by the Electoral Commission and adjudged by Ofcom and the BBC Trust to be ‘Major Parties’. These currently include:
- Liberal Democrats
- Plaid Cymru in Wales
- SNP in Scotland, and
- Sinn Fein, the SDLP, the Ulster Unionist and the Democratic Unionist Parties in Northern Ireland
Controversially, the Green Party was not recognised as a major party for the 2015 General Election and therefore was not allocated any PEBs.
RCBs, on the other hand, may only be allocated to organisations as designated by the Electoral Commission. However, as in the recent case of the Ukip PPB, there is nothing to stop parties using their PPBs to address wider issues. For example, issues that might concern the EU referendum debate. Regardless, this is unlikely to happen unless there is sufficient unanimity in the party about the issue, so don’t expect to see the Conservatives using any of their forthcoming PPBs for this purpose.
What, if any, editorial control do Channel 4 and the BBC have over content of political broadcasts?
Usually broadcasters have ultimate editorial control over the content of all their programmes, as well as the content of their services. However, that is clearly not appropriate for PPBs, PEBs, and RCBs. Here, their role is limited to striving to ensure that the broadcasts comply with the Ofcom Broadcast Code, the BBC Editorial Guidelines and the general law, since for all other purposes PPBs, PEBs and RCBs are programmes like any other.
With the fractured nature of the EU referendum campaigns, how will the broadcast slots be allocated?
Each referendum organisation, which has been designated as such by the Electoral Commission, will be allocated a series of RCBs before each referendum. The allocation should be equal for each referendum organisation. Hence, there will be equal allocations for the ‘Leave’ and ‘Remain’ campaigns.
If content in a political broadcast was held to be defamatory or inaccurate who would be liable?
Although the broadcasters do not exercise editorial control over the content of political broadcasts, they would be legally liable as publishers of the content. Hence, their practice is to seek indemnities from the political parties/referendum organisations in respect of any legal claims they might be exposed to as a result of the broadcasts.
However, if sufficient grounds exist, broadcasters are able to refuse to show certain content. For example, in 1997, the UK-based ProLife Alliance had enough public support to be granted a PEB and submitted a video that was graphic in nature. The content, which showed ‘the products of a suction abortion: tiny limbs, bloodied and dismembered, a separated head, their human shape and form plainly recognisable’, was said to be ‘disturbing to any person of ordinary sensibilities’. The broadcasters declined to show the video on the grounds that it could be offensive or disturbing to a large number of viewers and, therefore, contravene the harm and offence rules of the ITV/BBC Guidelines. The ProLife Alliance sought permission for judicial review of the broadcasters’ decision, which was subsequently refused—this refusal was later upheld on appeal.
Broadcasters have taken a similar approach with regards to the political broadcasts of the BNP in the past. Channel 5 and the BBC, in 2004 and 2014 respectively, refused to transmit the BNP’s broadcasts on the grounds they might give rise to racial hatred.
The accusation of inciting racial hatred is one which UKIP has recently faced with regards to its PPB of early February 2016. The PPB focussed on the possible future admission of Turkey to the EU and, in the process, provoked controversy for what were seen to be anti-Turkish and anti-Islamic sentiments. Notably this was not a RCB, rather UKIP decided to use their PPB slot to promote its anti-EU agenda.
The PPB was shown on both the BBC and ITV, and Ofcom is reported to have received numerous complaints on the grounds that it caused offence on religious and racial grounds. Ofcom are set to investigate the matter, as part of its mandate, and, if the complaint is upheld, will sanction the BBC and ITV, since they are the only bodies in this matter regulated by Ofcom. Ukip would not, therefore, face sanctions.
However, despite the fact that the indemnities normally sought by broadcasters are primarily concerned with issues of legal liability and associated costs, in such an instance as this, they might seek indemnities from UKIP to cover any financial sanctions imposed by Ofcom in the form of fines.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.