As we all know, in December last year Berena were apparently laid to rest. The manner of the demise has led many of us to pursue formal complaints with the BBC using their online or postal complaints procedure. We have complied with and sometimes argued over time limits for lodging a complaint, considered the Royal Charter and Agreement and BBC Editorial Guidelines (“the Guidelines”) and formulated carefully worded complaints making reference to the Charter, Agreement and Guidelines.  In return, we have been treated to repetitious, seemingly generic responses from the BBC complaints department which rarely addressed the substance of our original complaint. If you had the grit to pursue your complaint through all three stages of the BBC complaints procedure you finally win the right to refer your complaint to the Office of Communications (OFCOM).  This is where a number of us find ourselves at this time. 

I thought, therefore, that it might be useful to review the complaints procedure as it applies to the BBC – just by way of background – and then to provide a more detailed review of how Ofcom deal with complaints and apply the Broadcasting Code when making decisions. Hopefully we might glean some information which will assist in making complaints to Ofcom in relation to Berena.

BBC Complaints and Ofcom

Ofcom is a body created by statute to regulate communication services in the United Kingdom. Ofcom is required by law to draw up a code covering, amongst other things, standards in television programs. The code, known as the Broadcasting Code (“the Code”), sets out a number of principles and rules that  broadcasters must comply with. 

The BBC has chosen to ensure its compliance with the Code by writing it into the Guidelines Therefore, f the BBC follows the Guidelines then in theory they will comply with the Code. 

Under the Royal Charter and Agreement the BBC Trust, which is the governing body of the BBC, is given responsibility for ensuring the BBC comply with the Guidelines. The first line of review of any breach of the Guidelines (in effect the Code) therefore falls to the BBC. As many of us now know, they have  developed a somewhat complicated three stage complaints procedure to enable the BBC Trust to fulfil this duty. Generally all three stages of this process must be completed before a complaint can be referred to Ofcom. This is known as overlapping jurisdiction and it simply means both the BBC Trust and Ofcom can end up considering a particular complaint. 

Not surprisingly, there has been much criticism of this procedure. It seems clumsy and duplicitous. Lord Grade, a former chairman of the BBC Board of Governors (the predecessor to the BBC Trust), had cause to make several complaints following his departure from the BBC. He described the process as “a grizzly experience”. Ironically, he had devised the process whilst at the BBC. Nevertheless, it is what we have to work with before securing a truly independent review of a complaint. 

Timescales and Procedure for complaining to Ofcom

Ofcom have produced a document entitled Procedures for Investigating Breaches of Content Standards for Television and Radio which can be found here.

Some points to note from this guide. 

  1. Complaints to Ofcom should generally be made within 20 working days of the final response from the BBC ECU (paragraph 1.19). 
  2. It seems Ofcom would like you to use their standard form to file a complaint, this can be found here.
  3. The form allows you to attach up to 5 documents. You could attach copies of your previous complaint and the BBC’s response together with any further evidence in support of your complaint. 

It does seem that you can submit a complaint in writing in which case paragraph 1.14 confirms your complaint should include the following:-

  • the name / title of the programme complained about; 
  • the date and time of the programme; 
  • the channel on which it was broadcast 
  • the name / title of the programme complained about; 
  • the date and time of the programme; 
  • the channel on which it was broadcast 

The complaint should be sent to Ofcom PO Box 1285, Warrington WA1 9GL. 

How do Ofcom Investigate Complaints?

Ofcom have a set procedure for the investigation of complaints. 

They will log each complaint received and send an acknowledgement  This is likely to be the only interaction you have with Ofcom. 

Stage One: Initial assessment

Ofcom will consider if there is a substantive issue in relation to the Code that requires investigation. They will look at issues such as the gravity and extent of the alleged breach. If they think there is a substantial issue they will usually review the broadcast and maybe ask the broadcaster for other information regarding the program. They are seeking to determine if there has been a possible breach that requires further interaction with and explanation from the broadcaster. If Ofcom decide there has not been a potential breach they will take the matter no further and report the determination in their fortnightly decisions bulletin.

This initial assessment should be completed within 15 working days.

Stage Two

If Ofcom believe there may have been a breach of the Code they will contact the broadcaster with salient details of the complaint and highlight the element of the Code that may have been breached. They will invite the broadcaster to make representations within 10 working days. Ofcom aim to complete this stage within 50 working days. 

Stage 3: Preliminary View

Ofcom then prepare a preliminary view which is forwarded to a panel of Ofcom Content Board Members and a copy is provided to the broadcaster with an invitation for further representations within 10 working days. 

Stage 4: Final Determination

Following receipt of any further representations from the broadcaster Ofcom will make its final decision usually via an independent panel member and in consultation with the Content Board. Ofcom will then publish the outcome in the bulletin. 

How is the Broadcasting Code applied? 

By far the more interesting issue is how Ofcom apply the code to the complaints they receive. As already mentioned they publish regular bulletins giving details of their decisions and the most recent set can be found here. When I originally began the complaints process with the BBC I was very mindful of hanging my complaint on the Guidelines in an attempt to focus on breaches of the Code. Since then I have been scouring the Ofcom bulletins for decisions made in relation to section 2 of the Code, namely harm and offence. Recently two decisions have been published that deal specifically with section 2 and these can be found in bulletin 371 which in turn can be found here. The cases that are of interest are Teen Life, VoxAfrica (page 39) and Sheffield in Focus, Sheffield Live! (page 24). It is well worth spending a few minutes reading both decisions, which are summarised briefly below. 

Teen Life VoxAfrica

This was a drama set in Ghana focusing on the lives of some teenagers and their parents. The complaint related to homophobic material. The alleged breach was rule 2.3 of the code focusing on the teenage life

2.3 In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context (see meaning of “context” below). Such material may include, but is not limited to, offensive language, violence, sex, sexual violence, humiliation, distress, violation of human dignity, discriminatory treatment or language (for example on the grounds of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation, and marriage and civil partnership). Appropriate information should also be broadcast where it would assist in avoiding or minimizing offence.

The first question asked was whether there was material in the program that had the potential to cause offence. In this case there was and the material included negative views about homosexually:-

  • “It’s terrible when they (teenagers) are attracted to the same sex”
  • “Psychologically you are very sick and you need help”
  • “It’s wrong in the eyes of God”
  • “(homosexuality) is not healthy”
  • Conversion therapy was advocated. 

There are a number of other quotes listed in the decision, these are just a few. These were held to be potentially highly offensive to viewers, equating homosexuality with disease and mental illness. 

Ofcom then considered whether the context justified the offensive nature of the material. The first point they deal with is the fact that this was a comedic drama, a work of fiction and that viewers were aware it was not a documentary. Ofcom did not consider the comedic nature of the drama was sufficient to mitigate the offensive nature, particularly given that the wider audience might not be aware that it was a comedy. 

Ofcom acknowledged homophobia could be dealt with in comedy and drama provided the broadcaster complied with the Code, but discriminatory material must always be justified by context. Here they will look at the editorial voice of the program – what is the editorial voice promoting? Here the editorial voice was that homosexuality was wrong and should be dealt with through conversion therapy. This was an endorsement of homophobia and a negative representation of homosexuality without sufficient context. 

They looked at the gay relationship in the context of other heterosexual couples but it was decided that these did not mitigate the offence as they were separate and unrelated. The offensive storyline need not be the main focus either or even the majority of the focus. Its presence is sufficient to warrant consideration. 

Held in Breach

Sheffield in Focus, Sheffield Live!

Sheffield Live! is a local television service broadcasting local news and information to the Sheffield area. Sheffield in Focus is a magazine program by and for disabled people. There was a discussion about an equality campaigner who identified as non-binary and as a freemason. There were a number of discussions regarding this individual and how they identified and the particulars can be found in the bulletin. 

As with VoxAfrica, Ofcom firstly considered whether there was material broadcast which could be considered offensive.  They looked again at a potential breach of rule 2.3.  The following were identified as potentially offensive:-

  • referring to the individual as he or him when he identified as non-binary
  • Calling the activist a hypocrite for having an obviously male name. 
  • Saying the activist was a “good victim” who would have been bullied to “high heaven at school”.

Ofcom found these comments had the potential to cause significant offence as they were insulting, derogatory and sought to ridicule the status of the activist. 

They also accepted that saying that the term “non-binary” “sounds like a robot”, and that the use of the pronoun “they” was comparable to a “horror film”, “robots” and “aliens” would be offensive to the wider LGBT+ community and its allies. 

Ofcom then considered the context. The show did not show the presenters and contributors but rather pictures of Sheffield as the conversation played. It was also expected as a magazine show there would possibly be contentious and strong views. But in this case the views were strongly and continually expressed and given these views were potentially highly offensive with regard to the Trans community it was felt the views exceeded the audience’s expectations on a weekday afternoon. 

Held in Breach 

How Do These Decision Influence Berena Complaints?

The Code requires that potentially offensive material is justified by the context. So what is context? The Code defines context to include (but is not limited to):

  • the editorial content of the programme, programmes or series;
  • the service on which the material is broadcast;
  • the time of broadcast;
  • what other programmes are scheduled before and after the programme programmes concerned;
  • the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally or programmes of a particular description;
  • the likely size and composition of the potential audience and likely expectation of the audience;
  • the extent to which the nature of the content can be brought to the attention of the potential audience for example by giving information; and the effect of the material on viewers or listeners who may come across it unawares.

The pivotal words here are “includes but is not limited to.”  Ofcom looks at the totality of the statement. So here are some pointers for your complaint to Ofcom based on rule 2.3 

  • Highlight the offensive words or actions that you are complaining about and under the totality principle you can probably include events before and after the complained of episode to add context.
  • On the issue of context I think we have all been told Holby is a fictional drama, the characters are not real nor are they intended to be representative. The Vox case makes it clear that does not automatically mitigate the offence caused. Certainly Holby is not a comedy but Vox was so is it not the case therefore that the representation offered by Holby is even more likely to be accepted by the audience as accurate? 
  • Looking at the editorial voice of the program, what is the editorial voice promoting? Here I really struggle with the idea that the voice was anything other than stereotypical and offensive, something less than other relationships, infidelity, doomed to fail etc. The grown up love story angle just doesn’t work here as that could have been secured in June when Bernie returned thus avoiding the stereotypical portrayal. I struggle to see anything positive from the extension of the storyline when it ended in this fashion. Isn’t this the editorial voice?
  • The reliance on the way the heterosexual and gay relationships were treated at the same time is, I suspect, irrelevant as it has no bearing on the context of the Berena storyline. A similar point was made by Ofcom in Vox. 
  • Vox did consider the minority audience argument, the idea that very few were offended. The makers of the program argued that the majority of the viewers would understand the comedic nature of the program and that only a very small number of viewers would not appreciate the cultural setting of the show and thus the context. Vox relied on percentages of viewers to prove this point. In a parity argument I think Holby has to contend with the fact that it hailed Berena as being representative of lesbian relationships and that representation was not just made to the minority lesbian community, but all viewers. It deliberately courted the lesbian/bi community and drew viewers in with the idea that they would take care with this relationship. I’m not going to recite those enticements as I suspect that we are all familiar with them.  They are listed elsewhere on the website should you need to refer to them.  Vox is authority for the principle that offending or harming a minority is sufficient and refers to the offence caused to the homosexual community, which would have been a minority.
  • There is an argument that with dramas the BBC should have been aware of the audience’s expectations. Recent Ofcom guidance on the representation of minorities advocates the employment of individuals who can provide this perspective. It would be interesting to know if Holby employ such people and if so whether they did actually consider the audience expectations. 
  • Consider the makeup of the audience. It is of course mostly heterosexual and they are unlikely to have any appreciation of the fact the wlw relationship portrayed is anything but a sad caricature. It is giving an untrue and offensive portrayal and that is not clear to the majority of viewers. 
  • The harm caused to the minority audience that Holby courted and enticed has been immense. The BBC deliberately led the audience to suspect that the characters may in fact marry in an episode described as “a celebration of love in all its forms”. There has been no attempt by Holby to mitigate the offence caused. The production team at BBC studios and the BBC itself have rebutted all complaints so far. They have refused to engage in dialogue or even to offer a glimmer of an apology. 

I suspect for many of us this is our first encounter with Ofcom, it is for me, but these decisions help us understand the process and how Ofcom exercise their duty and reach their decisions. I don’t think there is any wrong or right way to pursue the complaint and I suspect we have complained in very different ways. Don’t be daunted by this stage. By now you know the nature of your complaint inside out. Tell Ofcom the facts as you see them, tell them about the offence caused and the harm caused and why it is not acceptable for Holby to have behaved in this way. Finally, good luck!

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