Should complaints always be in writing and on a standard form? (Provision will be made for anyone who is unable to submit their complaint in this format)
It is only fair and reasonable to those who have to respond to the complaint that the complaint is made in writing so that the broadcaster/programme maker has a clear indication of the nature and extent of the complaint(s) being made from the outset. The fact that it is recorded in writing 'fixes' the complaint thus reducing the risk that the broadcaster/programme maker can be dragged into dealing with a costantly metamorphosising complaint.
It is probably possible to record and convey complaints by other means (e.g. by voicemail) but submitting and dealing with written complaints is likely to be far more prcticable and less problematic for most people. No doubt members of Ofcom's staff and others (such as relatives, friends, neighbours or members of Citizen's Advice Bureaux or voluntary organisations) are more than willing to assist those who struggle to express themselves in writing to prepare their complaint in written form.
The main reason for asking complainants to use a standard form is to prompt them to provide all the necessary information required by Ofcom and by the broadcaster/programme maker to enable them to process/respond to the complaint promptly and appropriately and for that information to be presented in a convenient way. From a broadcaster/programme maker's perspective, a standard form is only of practical value if it obliges or encourages complainants to set out their complaints clearly and precisely and in a concise manner. However, in the past, many complainants have merely cross-referred in the standard form to another document, e.g. a rambling letter of complaint which often encompasses all manner of complaints, moans and grievances.
Either Ofcom should as a general rule insist that complainants submit their complaints by using the standard form (which form should be revised to oblige them to set out the grounds of their complaint more precisely) or, alternatively, Ofcom should allow complainants to submit their complaints in any form they chose but Ofcom should then as part of the 'entertainment decision' (see comments below) filter out any irrelevant or inappropriate elements or grounds for complaint at this stage and prepare a statement or summary of the complaint indicating the specific grounds for complaint which Ofcom expects the broadcaster/programme maker to address.
Should Ofcom be able to seek to clarify the terms of a complaint where it is unclear?
Yes, definitely. In fact, Ofcom should not proceed with a complaint unless and until the terms of the complaint are clear and Ofcom is satisfied that the complaint is relevant (i.e. confines itself to issues of fairness and/or privacy).
Should Ofcom include a provision in its new guidelines to provide parties to a complaint with copies of entertainment decisions?
Yes. As a broadcaster, we would welcome it. In particular, the 'entertainment decision' should evolve into a more useful tool. This stage or step in the complaint handling procedure offers an opportunity to 'streamline' the complaint and the process. It provides an opportunity not only for the Executive to sift out those elements or parts of a complaint which fall outside Ofcom's fairness and privacy remit as envisaged in clause 3.8 of the draft proposed Guidelines but also to weed out any irrelevant or superfluous material and to pare the complaint down to its key essential elements. Ofcom's executive should then provide both parties with a clear and concise summary of those issues or grounds for complaint which Ofcom regards as the thrust of the complaint and specifically those heads or issues which Ofcom expects the broadcaster/programme maker to address.
If Ofcom wants its complaints handling procedure to be 'quick and effective', then it is in all the parties' interests for each complaint to be set out clearly and precisely and confined to the relevant facts. The complainant should, of course, be given the first opportunity to frame his or her complaint but an early assessment and determination by Ofcom of which heads or grounds for complaint are valid or relevant and what elements or materials are pertinent to the complaint would save both parties valuable time and effort subsequently.
Should Ofcom incorporate a mechanism for appropriate resolution of complaints? How should this operate?
Whilst we query how useful this mechanism will prove in practice, we are in favour of it being offered as one of the options available to broadcasters. It represents a means of bringing a complaint to a swift and mutually acceptable conclusion.
It should always be a matter for the broadcaster (alone) to decide whether or not to make a proposal for 'appropriate resolution': Ofcom can give the broadcaster the option upon receipt of the complaint and/or subsequently upon receipt of the complainant's second written statement (if appropriate). Ofcom could suggest or recommend this option and it would be fair for Ofcom to take a broadcaster's refusal to make such a proposal into account when making its determination and directing the broadcaster to make redress in the event that the complaint is upheld. But Ofcom should not be entitled to oblige the broadcaster to make such a proposal.
Should Ofcom limit the written stages of the complaints consideration process to a maximum of two exchanges of written submissions (i.e. two rounds) - unless there are exceptional circumstances?
In the vast marjority of cases, two rounds of written statements are sufficient. Thereafter, the parties tend to simply make the same points again and to re-package the same 'evidence'.
Nevertheless, we foresee that there may be exceptionally complex or involved cases where further rounds or echanges of statements would be fair and appropriate (even if we have not been a party to any such case in practice). Ofcom should accordingly reserve the discretion to require or (if either party requests the same) to approve a further or additional exchanges of statements. If both parties request the same, then Ofcom should almost invariably consent to the same.
Should Ofcom consider late material whether in writing or at a hearing? Should Ofcom publish criteria for the admission of such material (and if so, what?) or should the decision be a matter for Ofcom's discretion?
There may be (relatively rare) cases or circumstances where it would be appropriate to permit the parties or either of them to present late material (so, for example, in relation to a privacy complaint where a key issue is whether the infringement of privacy was warranted or not, the fact that the complainant has been convicted of a criminal offence following the exchange of statements could be highly relevant to the determination and should therefore be permitted).
We suspect that it would be very difficult to formulate a sufficiently flexible list of criteria to cover all the deserving cases and would be happy for Ofcom to retain a discretion on this issue.
In what circumstances should Ofcom hold hearings? Should Ofcom publish criteria for holding hearings or should the decision be a matter for Ofcom's discretion?
From our perspective, hearings should only be held very occasionally. In the vast marjority of cases, the evidence and information comprised in the exchanged written statements should be sufficient to enable the Fairness Committee or the Executive Fairness Group to adjudicate upon the complaints fairly and appropriately. Accordingly, in our view, hearings should only be necessary where the Fairness Committee or the Executive Fairness Group remain undecided on the complaint or any key element of it following the exchange of statements and the Fairness Committee or the Executive Fairness Group are of the opinion that a further exchange of statements was unlikely to clarify or resolve the matter.
Should Ofcom retain a mechanism for reviewing decisions of the Executive? What should the possible grounds for a review be?
Although we do not anticipate that we would ever have reason to resort to it, both natural justice and the provisions of the Human Rights Act suggest that it would be prudent to incorporate a right of appeal (in realation to the Executive's decisions at least) into Ofcom's complaints handling procedures.
The current grounds for review set out in Clause 3.23 of the draft proposed Guidelines seem fair and reasonable.
In what circumstances should Ofcom direct the broadcast or publication of a summary of its findings?
We propose that Ofcom should only direct the broadcast or publication of a summary of its findings in those (presumably relatively rare) cases where Ofcom has determined that the thrust or sting of the complaint is valid (i.e where Ofcom has adjudicated in favour of the complainant on all or the marjority of the key issues) and the programme constituted a serious invasion of the complainant's privacy or resulted in serious unfairness to him or her and thus the complainant deserves redress in public.
In what circumstances should Ofcom consider applying a statutory sanction?
A statutory sanction should be reserved for only the most serious and exceptional cases. In our view, a statutory sanction would be appropriate in cases of persistent flouting of the Code by the relevant broadcaster (i.e. a series or sequence of complaints which suggest or indicate that the broadcaster or its programme makers either are not properly aware of or pay no heed to the requirements of the Code) or where the complaint has revealed such a substantial breach of the Code that this individual case amounts in itself to a flagrant disregard of the Code by the relevant broadcaster.
We note that Ofcom considers that its complaints handling procedures should be 'quick and effective, easy to use and understand and in keeping with natural justice'. These are commendable principles but we are concerned that, in practice, the current procedure and the proposed Guidelines work in favour of the complainant and place heavy burdens on the broadcaster in practice.
So, for example, the complainant effectively has upto 90 days 'to prepare its case' (i.e. to lodge the complaint) but the broadcaster is usually required to 'prepare its defence' and respond to the complaint within ten working days of notification of it. For a commissioner/broadcaster such as ourselves (which does not produce its programmes itself but instead commissions them from external producers), this deadline is particularly tight: we have to forward the complaint to the relevant production company; discuss it with them; await their draft statement and some (but not necessarily all) of the requested documentation from them; prepare or procure the remaining requested documents (often from scratch); discuss and, if necessary, request amendments to the draft statement; possibly make additions (e.g. the station's continuity announcement) to it subsequently and then forward all the required documentation and information to Ofcom within ten working days.
We also predict that the vast marjority of privacy and fairness complaints are made in relation to factual programmes and current affairs programmes in particular. Such programmes often form part of long running series which are in production for large parts of the year. It is therefore often the case that the production team which worked on the programme which is the subject of a complaint are engaged on the production of a later episode of the same series at the time of notification of the complaint. They are thus frequently unavailable or too busy at the time to be able to give their immediate attention to the complaint.
For these reasons, we request that the deadline for the broadcaster's initial response be extended, but that Ofcom should still retain its discretion (which should not be unreasonably withheld) to grant extensions of time in appropriate cases.
Likewise, we feel that the proposed time period for the second round of statements (i.e. a week) is too short.
In contrast to the very tight deadlines imposed upon the parties to the complaint, we often have to wait a suprisingly long period of time for the adjudication or at least to receive notification of it. If inevitably there is going to be a lull whist we await the adjudiciation, perhaps more time could be allocated to the earlier stages of the process.
S4C December 2005
