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THE GUARDIAN
Monday, 25 January 1993
TV journalists are wary of an ambiguously worded clause of the Broadcasting Act
Vague sense of unease
JOHN WILLIS
EARLIER this month, an American fundamentalist group threatened to take Channel 4 to the US Supreme Court in its case against Damned In The USA - an Emmy-winning arts documentary which featured the controversial photographs of Robert Mapplethorpe.
Fortunately, they've decided not to proceed. But hard on the heels of last summer's Dispatches "The Committee" case and the Jani Allen libel action, the threat of the Supreme Court is the latest illustration of how the battleground for broadcasters in the early nineties will be played out as much in the law courts as in Parliament.
This will probably come to a head quickly with the controversial new "due impartiality" provisions that became fully active on January 1. The result could be television regulation shaped not by the Independent Television Commission but by judicial review in the divisional court. These provisions deal with "matters of political or industrial controversy or current public policy."
Fairness lies at the heart of all good TV journalism. But the wording of the new legislation is, in the words of Dr John Finnis, reader in law at Oxford University who advised ITV, "pregnant with ambiguity" and "creates the live possibility of legal challenge".
The small, vocal group of politicians, mainly in the House of Lords, who pushed the late addition of the due impartiality clause into the Broadcasting Act, seem to have little confidence in the intelligence of the British citizen. The vast majority have the good sense not to be brainwashed by what they see on television. Indeed, they are more likely to be confirmed in views they already hold than to be swayed by a television programme.
A 1991 ITC survey concluded that only a small minority of viewers perceive any bias in programme services and that perceptions of bias are equally divided between left and right. Isn't bias often in the eye of the beholder? In December's debate on due impartiality, Lord Wyatt condemned Brian Walden, amongst others, as tending to the left. I'm doubtful whether Labour politicians grilled by Mr Walden would agree, nor would most viewers.
The main concerns of the broadcasters surround the clause that refers to due impartiality on "major matters". The ITC suggests this means matters "prominent on the political or industrial agenda". Where does that leave overseas reporting? As broadcasters' post bags show, coverage of, say, Indonesia or Angola can excite huge debate. What level of impartiality is due here?
Or what about Aids? What weight should the growing dissident medical opinion about the disease be given? So far Channel 4's attempts to reflect these views within a range of programmes have just sparked a chorus of protesters insisting that only the orthodox view should be heard.
So who is to decide what a "major matter" is, or which alternative views are allowed the privilege of a reply? And are there always only two viewpoints on a major matter? Are there just two views on Northern Ireland, the Middle East or Yugoslavia?
Who is allowed a voice on the issue of pit closures? The Government, the Opposition, the NUM, the Democratic Union of Mineworkers, British Coal and the new power generating companies will probably have different views; yet the new legislation ignores the possibility that any controversy may stimulate five or six views.
At its extreme this could lead to a deadening mechanistic interpretation of the law. As BBC director general John Birt said in 1990, "Impartiality is achieved by the steady exercise of good judgment at every link in the editorial chain and not by a rigid tit-for-tat formula which will stultify programme making and obstruct public understanding".
The nebulous language of the legislation means that broadcasters will be groping in the dark. The only solid clue we have is what happened during the Gulf war. Channel 4 transmitted a video made by US anti-war protesters called Hell, No, We Won't Go… The existence of this mood amongst some Americans had largely gone unreported - and it was certainly an appropriate programme for Channel 4, with its particular pluralistic remit. Yet the Freedom Association, invoking the due impartiality section, tried to take us to the divisional court for judicial review, only dropping the case when its legal advisers suggested that it would be more fruitful to wait until after January 1, 1993 when the ITC code has statutory effect. Indeed, the ITC itself would be the defendant in any legal action.
It is no wonder that when talking to students in Cambridge about broadcasting careers recently I suggested that the only growing area of employment in television is amongst media lawyers. The due impartiality clause is just the latest piece of legislation we now have to advise our independent producers about. Libel, obscene publications, the Contempt of Court Act 1981, the Official Secrets Act 1989, the Police and Criminal Evidence Act 1984, the Prevention of Terrorism Act 1989, the Representation of the People's Act and, of course, the workings of the Broadcasting Complaints Commission and the Broadcasting Standards Council are all essential parts of the working knowledge of producers.
Broadcasters believe that an independent body to review complaints impartially and adjudicate fairly is important. There has been growing concern, though, that the activities of the BCC are bringing it into the impartiality arena.
The danger of the BCC being used by pressure groups such as dog owners or Aids charities to deal with issues of general unfairness rather than particular mistreatment threatens to limit debate. Broadcasters are increasingly worried too by the BCC's inclination to ignore some of the rules of evidence and natural justice. The due impartiality "lawyers' picnic" forecast by Lord Goodman is already here with the BCC.
As the girdle of regulation is tightened the impracticalities and uncertainties of the new legal obligations should not blind broadcasters to the overwhelming importance of proper standards of fairness and pluralism across the schedule as a whole. Yet the danger is that programme editors and executives will spend so long trying not to fall foul of this new ambiguously-worded legislation that we will forget the crucial role of robust television journalism.
As a 1990 Daily Telegraph leader criticising the due impartiality provisions said: "A classic test of any government is how far it seeks superintendence over matters left to good sense." Much of the legislation now facing broadcasters leaves little to good sense. Producers and executives must be determined to ensure that the ambiguities, the uncertainties, and the risks of the new legislation do not stifle or inhibit the mixture of debate, observation, opinion and investigation which has made current affairs and documentaries a crucial part of a healthy broadcasting system.
John Willis becomes Director of Programmes of Channel 4 Television tomorrow.
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