16 No. 59 JUSTICE and it was therefore duly accurate.” This conclusion seems difficult to reconcile with the Editorial Guidelines which state that “all BBC output … must be based on sound evidence, thoroughly tested and presented in clear, precise language.”23 Judicial Review In principle, a dissatisfied complainant can apply for judicial review after exhausting the BBC’s complaints’ procedures. However, (a) this has usually taken upwards of two years and a multiplicity of steps; (b) a complainant must show error of law, irrationality, abuse of power or procedural impropriety, and the height of these hurdles is increased by the general respect held for the BBC; (c) the application has to be brought in England within three months of the final decision, save in exceptional circumstances;24 and (d) the legal costs are indeterminate and can be very high if the claim fails, since the applicant will normally be ordered to pay the BBC’s costs. In these circumstances, it seems that no pro-Israel benefactor has been persuaded to put up the funds required to take on the BBC. Forthcoming Changes Following the recent review, the government accepted that the BBC complaints system is unsatisfactory and decided to change it so that (a) “In the first instance the BBC will handle the complaint. Where a complainant is unsatisfied with the response, or where the BBC fails to respond in a timely manner, the complainant will then be able to complain to Ofcom”; and (b) “Ofcom will be able to consider complaints about all BBC content, including accuracy and impartiality in BBC programmes."25 Unfortunately, the proposed new BBC Framework Agreement26 fails to give effect to the government’s expressed intention in two important respects. In the first place, according to the current draft, a complainant will not be entitled to complain to Ofcom on the ground that the BBC has failed to respond in a timely manner, unless the BBC has failed to comply with the time limits indicated in its own procedures.27 On past form, these will be insufficiently clear or specific to secure a timely response. Secondly, under the current draft, Ofcom will not consider complaints of inaccuracy in content other than news, for example, documentaries.28 This is in line with Ofcom’s powers in relation to other broadcasters (discussed below), but it is a significant gap in the regulatory scheme, which is particularly serious in relation to the BBC, in view of its privileged position. If this draft is adopted, it will mean a significant reduction of the BBC’s current obligations regarding content, inconsistent with the government’s intention expressed in the White Paper. In addition, the requirements of accuracy and impartiality will cease to be direct legal obligations of the BBC. Requirements will only be enforceable by the courts indirectly by judicial review if there is an error of law, irrationality, abuse of power or procedural impropriety on the part of Ofcom on a complaint of lack of due accuracy (in news) or lack of due impartiality (in news and some other content). Other Broadcasters Other broadcasters are required to observe the provisions of the Ofcom Broadcasting Code29 established under sections 319-320 of the Communications Act 2003,30 and Ofcom is responsible for examining compliance and complaints. In accordance with the 2003 Act, the Code specifies that news in television and radio services must be presented with due accuracy and due impartiality.31 The Code adds that “significant mistakes in news should normally be acknowledged and corrected on air quickly. Corrections should be appropriately scheduled.”32 In addition, due impartiality on the part of the broadcaster must be preserved in respect to matters of 23. Supra note 14, §3.2.2. As noted above, the BBC Trust is required to do all it can to secure that this code is complied with. 24. In Scotland, there is no specific time limit but the application must be brought without undue delay. 25. U.K. Department for Culture Media & Sport, A BBC for the future: a broadcaster of distinction, May 2016, available at https://www.gov.uk/government/uploads/system/ uploads/attachment_data/file/524864/DCMS_A_BBC_ for_the_future_rev1.pdf (last visited Feb. 17, 2017). 26. Draft BBC Charter and Draft Framework agreement, U.K. Department of Culture, Media and Sport, Sep. 15, 2016, available at https://www.gov.uk/government/ publications/draft-bbc-charter-and-draft-frameworkagreement (last visited Feb. 21, 2017). 27. Id. §57(1)(a)(iii). 28. Supra note 26, §49; draft Framework Agreement §59 Schedule 3 §§2-3, Communications Act 2003, secs. 319-320. 29. The Ofcom Broadcasting Code, Ofcom, May 9, 2016, available at https://www.ofcom.org.uk/tv-radio-and-ondemand/broadcast-codes/broadcast-code (last visited Feb. 21, 2017). 30. Available at http://www.legislation.gov.uk/ukpga/2003/21/ contents (last visited Mar. 5, 2017). 31. Communications Act 2003, supra note 30, sec. 319(2)(c) and (d). 32. Ofcom Broadcasting Code, supra note 29, §5.2.
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