Regulation of news broadcasting companies

On 14 March 2024, the House of Lords will consider the following question for short debate:

Lord McNally (Liberal Democrat) to ask His Majesty’s Government what assessment they have made of the regulation of news broadcasting companies.

1.   What is the role of Ofcom in regulating news broadcasting companies?

Ofcom is the regulator and competition authority for the UK’s communications industries.^[1] It was established under the Office of Communications Act 2002 and operates under several acts of parliament. The principal duty of Ofcom is to “further the interests of citizens in relation to communications matters”. In particular, Ofcom implements and enforces communications, competition and consumer protection laws.

Ofcom determines who can broadcast in the UK by issuing licences for all commercial television and radio services. These licences come with conditions that broadcasters must follow. If these conditions are broken, Ofcom has the power to revoke a licence. For example, in March 2022, Ofcom revoked the broadcast licence of RT, a Russian broadcaster, with immediate effect amid concerns over its impartiality, particularly surrounding the ongoing conflict in Ukraine.^[2] These concerns included the broadcaster’s funding by the Russian government and the implementation of new laws within Russia, which “effectively criminalise any independent journalism that departs from the Russian state’s own news narrative, in particular in relation to the invasion of Ukraine”.

1.1  Ofcom’s broadcasting code

Under the Broadcasting Act 1996 (as amended) and the Communication Act 2003, Ofcom is required to draft a broadcasting code for television and radio, covering: fairness and privacy; product placement in television programmes; standards in programmes; and sponsorship.^[3] There are several factors Ofcom must consider when drafting, reviewing and revising its broadcasting code. These include the:

• potential harm or offence caused by different types of content, both generally and in specific programme categories
• size and demographics of the audience
• audience’s expectations regarding programme content and how effectively this information is conveyed
• risk of unintended exposure to inappropriate content for those unaware of a programme’s nature
• need for services to indicate changes in programme content, especially those impacting the application of the code
• importance of maintaining editorial independence in programme content creation

The broadcasting code comprises of ten sections.^[4] Each section is summarised below:

• Section one: Protecting those aged under 18 years. This outlines the rules around programme scheduling and content information to safeguard children.
• Section two: Harm and offence. This details the standards that broadcasters need to follow to provide the public with “adequate protection” from harmful or offensive content.
• Section three: Crime, disorder, hatred and abuse. This prohibits broadcasts that could incite crime or disorder.
• Section four: Religion. This outlines the responsibilities of broadcasters regarding religious content.
• Section five: Due impartiality and due accuracy. This ensures that news, in whatever form, is reported with “due accuracy and presented with due impartiality”.
• Section six: Elections and referendums. This addresses special impartiality requirements that must be applied at the time of an election or referendum.
• Section seven: Fairness. This promotes the fair treatment of individuals and organisations in broadcasts.
• Section eight: Privacy. This outlines how broadcasters are expected to protect an individual’s privacy regarding programme content and production.
• Section nine: Commercial references on television. This relates to broadcasters’ editorial independence and control over programming with a distinction made between editorial content and advertising.
• Section ten: Commercial communications on radio. This discusses transparency of commercial communications to secure consumer protection.

The regulator’s chief executive, Melanie Dawes, has previously stated that Ofcom’s “crucial role” in “preserving the integrity of broadcast news and current affairs programming” had “remained steadfast”.^[5] Highlighting the role of Ofcom in upholding standards of due impartiality and due accuracy (section five of the code), Ms Dawes stated that:

These two pillars of our broadcasting code—which reflect the duties set for Ofcom by Parliament—are designed to protect audiences from harm, and to secure a counterweight to other, more partial, sources of news. They give TV and radio news audiences confidence that they can rely on the facts while also “hearing the other side” through a range of alternative views, so they can judge for themselves.

Importantly, our due impartiality rules respect broadcasters’ freedom to make editorial and creative choices, and the rights of viewers and listeners to receive a range of information and ideas. This includes controversial opinions that challenge the mainstream or status quo. Our rules support rigorous, challenging journalism that holds those in power to account and has earned our TV and radio broadcasters an unrivalled global reputation. The principle of freedom of expression is highly valued by audiences and hugely important for our democracy.

However, Ms Dawes also acknowledged that Ofcom’s due impartiality rules were “sometimes misunderstood”.^[6] She noted that a “common misconception” was that “due impartiality means ‘neutrality’” or that it was a “mathematical construct whereby equal airtime must be given to all sides of a debate”. She highlighted that the word “due” was “extremely important”, as it meant “adequate or appropriate to the subject and nature of the programme”. Therefore, she stated that when Ofcom applied its code to news broadcasters, it took account of a “number of contextual factors”, including the nature of the subject, the type of channel and programme, and the “likely expectation of the audience”.

1.2 External regulator of the BBC

The BBC operates under a royal charter, which acts as its constitution.^[7] This charter is granted by an order issued in the Privy Council and is typically reviewed and renewed every ten years. The current charter, approved in December 2016, began on 1 January 2017 and remains in effect until 31 December 2027. A separate framework agreement details the specific rules governing the BBC’s operations.^[8]

The royal charter defines the BBC’s core objective, which is to “act in the public interest” by providing “impartial, high-quality and distinctive output and services which inform, educate and entertain”.^[9] Article six of the royal charter sets out the public purposes of the BBC. This includes providing “impartial news and information to help people understand and engage with the world around them”.

Since becoming the BBC’s external regulator in 2017, Ofcom is required under the royal charter to develop an operating framework for the BBC.^[10] This framework must contain provisions that Ofcom considers appropriate to “secure the effective regulation of the BBC’s activities”, as set out in the charter and agreement. Additionally, Ofcom is tasked with:

• Setting an operating licence for the BBC’s “UK Public Services”, such as BBC One, BBC News and BBC Parliament, outlining regulatory conditions it considers appropriate for the BBC to deliver its mission and public purposes.
• Determining appropriate measures to assess the performance of UK Public Services.
• Outlining requirements in the operating framework which protect fair and effective competition relating to material changes to UK Public Service and non-service activities.
• Setting requirements in the operating framework in relation to interaction between the BBC and its commercial activities. This is to ensure that commercial activities do not “distort the market or gain an unfair competitive advantage”, stemming from their association with UK Public Services, trading activities, or non-service operations.
• Regulating the content standards of the BBC’s television, radio and on-demand programmes, by Ofcom’s standards and fairness codes.^[11]

Ofcom also publishes annual reports detailing how it carries out its regulatory functions and assesses the BBC’s compliance with the requirements of the operating framework, operating licence and associated documents.^[12]

In its latest report, published in November 2023, Ofcom noted that, overall, the BBC had “performed well” and “continued to deliver” its mission and public purposes.^[13] It reported that 83 percent of adults used the BBC every week and that audiences across the UK remained “generally positive” towards the broadcaster, with 60 percent rating it highly. The report also found that 75 percent of adults were positive about the “importance to society” of the BBC’s provision of “news and information to help people understand what is going on in the UK and the world”. However, it also noted that some people “continue[d] to have reservations” about the BBC’s impartiality, though found that audience perceptions had “remained unchanged from last year”.

1.3 Enforcement

Under the 2003 act, Ofcom has a statutory duty to establish procedures for the handling and resolution of complaints from listeners and viewers about programmes broadcast on radio and TV channels that it licences.^[14] This includes the Welsh channel, S4C. Ofcom’s enforcement role also extends to the BBC. Under the BBC charter and agreement, Ofcom must establish procedures for handling and resolving complaints with the BBC’s television, radio and on-demand programmes.^[15]

Ofcom’s procedures for handling and resolving complaints are as follows:

• Initial assessment: Based on an initial assessment of the complaint, and, in most cases, reviewing the relevant television or radio content, Ofcom determines whether the broadcasting code (or other Ofcom codes) may have been breached. If no potential breach has been identified, Ofcom will decline to investigate further and publish its decision in a bulletin. Ofcom has said that it aimed to assess all complaints within 15 working days.
• Investigations: Should a case raise “potentially substantive issues”, Ofcom will further investigate the complaint to determine if a breach of one of its codes has occurred. Such investigations may involve grouping several related cases against the same broadcaster. Ofcom has stated that it aimed to complete these cases within 50 working days.
• Sanctions: If Ofcom determines that a broadcaster has breached the broadcasting code or another Ofcom code, and considers the breach or breaches to be “serious, deliberate, repeated, and/or reckless”, it may consider whether to impose a statutory sanction against the broadcaster. Sanctions can include: issuing a direction to broadcast a correction or a statement of Ofcom’s findings; imposing a financial penalty; shortening or suspending a licence (for some categories of licence); and revoking a licence (although this does not apply to the BBC, Channel 4 or S4C).

In addition to launching investigations following an assessment of complaints, Ofcom can conduct investigations on its initiative. It handles complaint-led and self-initiated investigations using the same procedure.

2.   How many recent complaints, cases and sanctions have there been against broadcasters?

2.1 Complaints and cases assessed

In its latest annual report, published in July 2023, Ofcom noted that it had received a total of 36,908 complaints in 2022/23.^[16] This led to 8,725 cases being assessed, with 44 cases referred for investigation. Ofcom also reported that in 2022/23, it had concluded 82 investigations. It had found that:

• 70 investigated cases had revealed that the complaints breached the broadcasting code or other Ofcom codes
• 8 investigated cases revealed that the complaints were not in breach of the codes or were discontinued
• 2 investigated cases were resolved
• 2 investigated cases revealed that the complaints were not in breach and guidance was issued to the broadcaster

2.2 BBC content standards and investigations

The BBC operates under a ‘BBC first’ framework for handling complaints.^[17] This means viewers and listeners must first address their concerns about BBC television, radio, or on-demand programmes directly with the broadcaster. The complainant can then escalate the issue to Ofcom if they:

• are dissatisfied with the BBC’s response or if the BBC fails to respond in a timely manner
• believe Ofcom intervention, including potential sanctions against the BBC, are appropriate

Ofcom reported that it had received and assessed 1,834 complaints in 2022/23 relating to BBC content.^[18] Of these complaints:

• 1,720 were referred to the ‘BBC first’ approach
• 114 went through Ofcom’s BBC standards process

2.3 Recent cases against news broadcasters

Ofcom has investigated several news broadcasters as a result of complaints alleging breaches of the broadcasting code. Some recent examples are as follows:

• On 4 March 2024, an Ofcom investigation concluded that “misogynistic” comments made on a programme on GB News had breached the broadcasting code “designed to protect viewers from offensive content”.^[19] Ofcom therefore required GB News to provide further information about its compliance practices in this area.
• In September 2023, Ofcom opened an investigation following complaints into a GB News programme presented by the then Deputy Chairman of the Conservative Party Lee Anderson, who had interviewed the then home secretary, Suella Braverman.^[20] Following an investigation, Ofcom found that the programme “did not raise any issues warranting investigation under the code”.
• In November 2022, Ofcom found that an online BBC News article about an antisemitic attack in London had failed to observe the BBC’s editorial guidelines on due impartiality and due accuracy.^[21] Following its investigation, the regulator stated that it would review how the BBC addressed complaints handling and transparency issues raised by the case.

3.   What recent action has the government taken on regulating broadcasting?

The government has previously stated that broadcasting regulation was “a matter for Ofcom”, as the UK’s independent regulator of television and radio.^[22] It also noted that Ofcom “sets and enforces stringent standards for licenced broadcasters to meet in its broadcasting code”.

In recent years, the government has introduced legislation containing provisions to update the framework governing public service broadcasting. It has also conducted a mid-term review of the BBC, which assessed the effectiveness of the governance and regulation of the BBC.

3.1 Broadcasting white paper

In April 2022, the Boris Johnson government published a white paper setting out the government’s vision for the broadcasting sector.^[23] In the white paper, the government stated that the “headwinds” facing radio and television broadcasters in the UK were “intensifying”, highlighting that competition was increasing, audience habits and technology were “changing constantly” and that “global giants” were “making their presence felt”.^[24] The government said that it intended to act to support its system of public service broadcasting, using its “new legislative freedoms to deliver a regulatory framework in the best interests of the UK”. Therefore, it outlined several proposed changes to public service broadcasting.^[25] These included:

• Channel 4 ownership: Ownership change from public to private, similar to other public service broadcasters that were privately owned, such as ITV and Channel 5.
• BBC funding: A two-year freeze on the TV licence fee at £159, followed by inflation-based increases. The BBC’s commercial borrowing limit would also be increased.
• Public service remit changes: Replacing the “outdated” set of purposes and objectives that broadcasters must contribute to with a “new, shorter remit”.
• Content delivery flexibility: More freedom for broadcasters to deliver content on various free-to-air platforms.
• On-demand television: Introduce a “new prominence regime” for on-demand television, which would ensure public service content was available and easy to find on designated platforms.
• Video-on-demand regulation: Bringing larger “TV-like video-on-demand providers” that were unregulated under Ofcom’s authority and giving Ofcom new powers to draft and enforce a new video-on-demand code to ensure content was subject to similar standards as that in the broadcasting code.

The government’s proposed plan to privatise Channel 4 was met with criticism. In a statement on its website, the broadcaster expressed its disappointment with the proposal, noting that the government’s announcement had been made “without formally recognising the significant public interest concerns which have been raised”.^[26] Channel 4 also noted that it had presented the Department for Digital, Culture, Media and Sport (DCMS) with a “real alternative to privatisation” that would “safeguard its future financial stability, allowing it to do significantly more for the British public, the creative industries and the economy, particularly outside London”. Additionally, the shadow culture secretary, Lucy Powell, described the proposal as “cultural vandalism”, arguing that it would “cost jobs and opportunities in the North and Yorkshire, and hit the wider British creative economy”.^[27]

The government reconsidered the privatisation of Channel 4 following Liz Truss’s appointment as prime minister in September 2022. The following month, the then secretary of state for DCMS, Michelle Donelan, said that she was reviewing the business case for selling the channel.^[28] In January 2023, Ms Donelan confirmed that her business case review had concluded and that Channel 4 would not be sold.^[29] Instead, the government stated that it would be introducing reforms to “help Channel 4 grow and better compete in the age of streaming giants”. It noted that the channel operated under a “publisher-broadcaster” model, meaning it commissioned or acquired content from independent producers who retained the rights to those programmes. The government argued that this limited Channel 4’s control over its content and ability to generate revenue from its productions. Therefore, it would legislate to “relax the publisher-broadcaster restriction in Channel 4’s remit”, which would allow Channel 4 to produce and own its content, potentially increasing its income and financial stability.^[30]

3.2 Mid-term review of the BBC

Article 57 of the BBC’s royal charter allows the secretary of state for DCMS to conduct a mid-term review to evaluate the effectiveness of the governance and regulation of the BBC.^[31] In May 2022, the then secretary of state, Nadine Dorries, launched a review and published its terms of reference.^[32] These terms were devised following consultation with the BBC, Ofcom and ministers of the devolved administrations.

The terms of reference for the review were to assess the implementation of key changes to the BBC’s governance and regulation through the current charter and examine whether these changes had enabled the BBC to effectively fulfil its mission and public purposes across the UK and globally, uphold its general duties, and ensure that the BBC board and Ofcom successfully carry out their designated functions as outlined in the charter and framework agreement.^[33] The review focused on several areas, including the effectiveness of BBC’s mechanisms in upholding editorial standards and impartiality, alongside the regulatory framework for enforcing content standards. 

The review’s findings were published in January 2024.^[34] It highlighted that impartiality was “core to the BBC’s responsibilities under the charter”, particularly through its provision of “impartial news and information to help people understand and engage with the world around them”.^[35] The review concluded that there was “clear evidence” that adherence to impartiality and editorial standards was “now at the heart of the BBC’s priorities”. However, it called on the BBC and Ofcom to “continue to strive to fulfil their responsibilities”. It also noted that whilst people in the UK had valued the role of the BBC in news provision, impartiality was “one of the areas where the BBC is perceived less favourably compared to other aspects of news delivery”.^[36]

To improve impartiality and build audience trust, the review recommended that the BBC publish information about its impartiality efforts and their impact.^[37] It also stated that a “significant” recommendation was to extend Ofcom’s regulatory responsibilities relating to the BBC to online content. This would enable Ofcom to “hold the BBC to account, including against its impartiality responsibilities, in a more robust way”.

Responding to the review’s findings, a spokesperson for the BBC said that the mid-term review was designed to look at the BBC’s governance and regulation and that it was “pleased” that the government’s findings “reflect that overall these are working well”.^[38] Discussing impartiality, the spokesperson stated that “no other organisation takes its commitment to impartiality more seriously” and that it had “well-established and detailed plans to sustain and further improve standards”.

3.3 Media Bill 2022–23

In the King’s Speech 2023, the government announced that it planned to introduce a media bill to “support the creative industries and protect public interest journalism”.^[39] In the briefing notes published alongside the King’s Speech, the government said that the bill sought to “make long-term changes to ensure viewers and listeners across the UK can continue to access public service television and radio content as technology changes” and “deliver the manifesto commitment to repeal section 40 of the Crime and Courts Act 2013 which, if commenced, could have a chilling effect on the freedom of the press”. The briefing notes also outlined several measures on broadcasting reforms to be included in the bill. These included:

• Modernised public service TV mission statement: This would encourage public service broadcasters (BBC, ITV, STV, Channel 4, S4C, Channel 5) to “focus on what makes them distinctive”, whilst delivering “high-quality programmes on a wider range of services”.
• Public service broadcasting access: This would ensure such content was easy to find on connected devices and online platforms, such as on smart TVs, set-top boxes and streaming sticks. The government stated that this reform was “vital for public service broadcasting sustainability”.
• Reduce regulatory burdens and costs for commercial radio stations: This would support investment by broadcasters in content and, in turn, the long-term sustainability of the sector, whilst strengthening protections for the provision of local news and information.
• Support Channel 4’s sustainability: This would include strengthening Channel 4’s governance arrangements and programme production.
• S4C expansion: This would allow S4C to broaden its reach, offer content on new platforms, and update its remit for digital services.

The Media Bill 2022–23 was introduced by the government in the House of Commons in November 2023.^[40] It completed its House of Commons stages on 30 January 2024. The bill was introduced in the House of Lords on 1 February 2024.

Further information on the bill and a summary of its passage in the House of Commons is provided in the House of Lords Library briefing, ‘Media Bill’ (12 February 2024).

4.   Read more

4.1 Library publications

• House of Commons Library, ‘The government’s role in upholding the impartiality of BBC news coverage’, 26 February 2024
• House of Lords Library, ‘Future of public service broadcasting’, 31 October 2022

4.2 Parliamentary questions

• House of Commons, ‘Written question: BBC—Political impartiality (1337)’, 16 November 2023
• House of Lords, ‘Written question: Media—Disinformation (HL10692)’, 25 October 2023
• House of Commons, ‘Written question: Press freedom (203646)’, 25 October 2023
• House of Commons, ‘Written question: Broadcasting—Russia (142463)’, 24 March 2022

4.3 Press articles

• Rowena Mason and Ben Quinn, ‘GB News is being allowed to break impartiality rules, say senior TV figures’, Guardian, 24 February 2024
• Faye Brown, ‘Lucy Frazer questioned about BBC bias, as government accused of ‘culture wars’ over impartiality reforms’, Sky News, 22 January 2024
• Peter Walker, ‘Lib Dems ask Ofcom to investigate GB News over Ed Davey criticism’, Guardian, 11 January 2024
• Joshua Nevett, ‘Ofcom urged to toughen rules for politicians presenting on news TV’, BBC News, 6 July 2023
• James Gregory, ‘Gary Lineker row goes to heart of BBC reputation: Ofcom boss’, BBC News, 14 March 2023

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Cove image by Matt C on Unsplash.