On 9 April 2010, Channel 4 broadcast a Dispatches episode which criticised the organising and the charitable fundraising of the London Marathon.  The London Marathon Limited and the London Marathon Charitable Trust Limited subsequently complained of unfair treatment to Ofcom, which recently published its decision.  Although the summary refers to the complaint being “partly upheld”, and despite having agreed that a number of allegations had been made where there had been no prior notice and therefore no opportunity to respond, Ofcom found overall that the programme-makers were not unfair in their dealings with the complainants, and upheld only one of 38 parts of the complaint.

The complaint

The London Marathon Limited (“London Marathon”) and The London Marathon Charitable Trust Limited (“London Marathon Trust”) complained to Ofcom following the broadcast of a Dispatches episode entitled Tracing the Marathon Millions.  The episode was critical of the London Marathon event, analysing the allotment of places to individual runners and to charities, and alleging a lack of transparency by the organisers.

The complaint was in 38 parts, and alleged unfair treatment in respect of a number of issues.  The complainants considered that the programme-makers did not treat them fairly.  They complained that the programme-makers did not return telephone calls or meet with the London Marathon event organisers, nor did they obtain fully informed consent from the London Marathon and the London Marathon Trust as to their participation, as they did not inform the complainants of the names of a number of contributors or the nature of their likely contributions.  The complainants also claimed that they were not given an appropriate or timely opportunity to respond to allegations made in the programme, and that the broadcast did not include the short statement of response which they had prepared.  Finally, the complainants stated that the programme-makers omitted or disregarded material facts.

Ofcom’s decision

Ofcom addressed a number of the complaints by considering in particular the following provisions of Practice 7 of its Broadcasting Code which deals with fairness:

  • Practice 7.2, which states that broadcasters and programme makers should normally be fair in their dealings with potential contributors to programmes unless there is exceptional reason which justifies otherwise;
  • Practice 7.3, which states that where a person is invited to make a contribution to a programme, they should normally be told about the nature and the purpose of the programme, what sort of contribution is expected, the area of questioning and the nature of any other likely contributors;
  • Practice 7.9, which demands that broadcasters take reasonable care to satisfy themselves that material facts have not been omitted or disregarded in an unfair manner; and
  • Practice 7.11, which states that if a programme alleges wrongdoing or incompetence or makes other significant allegations, those concerned should normally be given an appropriate and timely opportunity to respond.

Although Ofcom accepted that the programme made serious criticism of the London Marathon, Ofcom found that Channel 4’s programme had not treated the London Marathon and the London Marathon Trust unfairly in all but one of the 38 parts of the complaint.  Ofcom found that Channel 4 had provided the complainants with adequate information about the programme and with sufficient time to respond to the criticisms (the initial letter which is said to have been long and detailed was sent 17 working days before the broadcast, and another letter some 7 days prior to that).  Ofcom also found that the programme did not omit or disregard pertinent information in a way to prejudice the London Marathon event, on the basis that information had been included in the broadcast statements, or that the information was irrelevant or immaterial.  Similarly, Channel 4 was not obliged to use a short statement which the London Marathon and the London Marathon Trust had prepared for the broadcast, notwithstanding that it had been marked “to be used in full or not at all”.

Part of complaint upheld

The part of the complaint that Ofcom found to be unfair concerned Dispatches’ statement that the London Marathon and the London Marathon Trust were “not always consistent” when it came to explanations regarding amounts of money going towards grants.  This statement only relied on one illustration, which was an email stating that £31 million had been awarded in grants since 1981, rather than the otherwise standard quoted figure of £35 million.  However, London Marathon had explained prior to broadcast that this was merely a typographical error and that in all other instances it had consistently provided the figure of £35 million.  Ofcom found that it was unfair to make a broad statement based on one single typographical error in the context of widespread correct publicity, as this is not an example of persistent inconsistency. 

Comment

This decision demonstrates a number of potential pitfalls when dealing with broadcasters in relation to investigative journalism and documentaries.  This also serves as a reminder that it is always important to understand and anticipate the approach which is likely to be taken in a particular broadcast and to deal carefully with programme researchers and producers.

By referring to some of the key provisions of the Ofcom Broadcasting Code in terms of seeking to hold broadcasters to account, the decision provides a highly detailed analysis of particular aspects of a programme that can contribute to a general tenor of unfairness.  However, even where there is a general tenor of unfairness, it does not mean that Ofcom will find that there has been a breach of its Broadcasting Code.  Channel 4 had taken a strong line, in particular as to whether certain allegations should have been put to the complainants.  Ofcom appears to have accepted this approach, concluding that there was no unfairness, for example, on the basis that some information was public information or that a response was provided from elsewhere.  Some aspects of Ofcom’s conclusions were more expected than others.  For example, the 17-day period from the detailed letter to the date of the programme itself would have made it difficult to succeed on a complaint that an appropriate and timely opportunity to respond had not been given, at least on the issues raised in that letter.  Indeed, broadcasters regularly give only 10 days or less to respond.  However, in this case, Ofcom somewhat surprisingly concluded that a number of allegations made in the programme did not, in fact, amount to allegations of wrongdoing or incompetence, or other significant allegations, and that the broadcast was therefore not unfair to the complainants. 

It is difficult fully to identify how Ofcom could justify its findings as to what constitutes an allegation of wrongdoing, or another significant allegation, and what does not.  Ofcom’s decisions can be escalated through their complaints procedure internally or challenged by means of judicial review.  It will be interesting to see whether the London Marathon and/ or the London Marathon Trust take any further steps in relation to this programme. 

Please click here for Ofcom’s latest Broadcast Bulletin publishing the decision.