Ofcom to Hitchens: 'Get Lost'

Not to my great surprise, Ofcom has declined to consider my complaint against the BBC over ‘What the Papers Say’, taking a more or less identical position to that of the BBC's own Editorial Complaints Unit and the BBC Trust. It is apparently 'frivolous' on my part to see any unfairness, or evidence of institutional bias against people holding views such as mine,  in having my words altered to change their meaning in a current affairs programme aired by an officially impartial national broadcaster.

 

Of course, no objective measure exists to establish the degree of hostility or accuracy in the caricature of a voice. But there is, in this case, something remarkably close to such a measure, which none of those investigating my complaint has ever taken into account despite my repeatedly mentioning it. As I have said a dozen times, and nobody has ever challenged me, the BBC would never have caricatured my brother's voice (very similar to mine) as it caricatured mine.

 

Here is their response in full (by ‘entertainment’, they mean what most people would mean by ‘consideration’). Much like the BBC, they make a great deal of the largely irrelevant issue of the (undoubted) difference between May Day and the Olympic ceremony, and very little of the interesting fact that the presenter took me to task for saying something I hadn't - and that the reason he was able to do this was that my words had been altered. They also ignored my point that I could find no parallel instance of any such alteration of the meaning of a quotation in the history of this programme, and the BBC had produced no such example.

 

I suppose I shall now have to take up the offer made to me by the programme's editor (before I lodged my complaint), to become a presenter of it. Let us see what happens about that.

 

Here is the Ofcom letter:

Entertainment Decision

Complaint by Mr Peter Hitchens

What the Papers Say, BBC Radio 4, 29 July 2012

Case No. 1-230571601

Summary

Ofcom has not entertained Mr Hitchens complaint as set out in “The Complaint” section below. This is because Ofcom considers (under section 114(2)(c) of the Broadcasting Act 1996 (as amended)) that Mr Hitchens has not set out a sustainable case of unjust or unfair treatment in the programme as broadcast for the broadcaster to answer. Ofcom will therefore not proceed to consider the complaint further. Ofcom’s decision and the reasons for it are set out below.

The Entertainment Decision

In reaching its decision not to entertain Mr Hitchens’ complaint, Ofcom considered the statutory criteria that must be satisfied before a complaint can be entertained. These are set out below. Ofcom also considered the following material in making its decision:

 complaint form dated 12 March 2013 and supporting material;

 a recording of the programme; and

 images of the Moscow Olympic opening ceremony and May Day parades (1980,1974,1966).

The Programme and relevant background

On 29 July 2012, BBC Radio 4 broadcast its weekly fifteen minute radio programme What the Papers Say. This edition of the programme was presented by political journalist Mr Mehdi Hasan, who analysed and commented on how various publications had covered the week’s news stories. Quotations from a variety of newspaper journalists, tweets from politicians and headlines from a number of publications were read by male and female actors. The first issue discussed in this edition of the programme was the 2012 London Olympic Games, which had begun a few days before. Mr Hasan explained that:

“The London Olympics kicked off in all its pomp and glory”.

Extracts from a number of newspaper articles commenting on the Olympic Games opening ceremony, and the tweet of a politician, were then read out by actors and Mr Hasan commented on their views.

The column of Mr Peter Hitchens, a journalist from the Mail on Sunday, was one of those quoted in this section of the programme. It was presented as follows:

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Presenter: “It was left to the Mail on Sunday’s Peter Hitchens to rival...for party pooper-in-chief.

Actor: Enthusiasm is compulsory only in totalitarian dictatorships. Anywhere else, we are free to be keen if we want to and bored if we want to.

Presenter: I am guessing Peter, you’re bored.

Actor: Count me out of the compulsory joy, reminds me all too much of [pause] Soviet Moscow.

Presenter: Really Peter? Really? London 2012 is the Soviet Union 1980. I think not”.

Following the broadcast of the programme, Mr Hitchens complained to Ofcom that he was treated unjustly or unfairly in the programme as broadcast.

The Complaint

Mr Hitchens completed a Fairness and Privacy Complaint Form on 12 March 2013 which was received by Ofcom on 14 March 2013.

Unjust or unfair treatment

Mr Hitchens complained to Ofcom that he was treated unjustly or unfairly in the programme as broadcast in that material facts were misrepresented, disregarded or omitted in a way that was unfair to him. Mr Hitchens said his written published work in a newspaper column was edited and then quoted in such a way that its meaning was altered. In particular, Mr Hitchens complained that:

i) He was quoted in the programme as broadcast as saying “Count me out of the compulsory joy, reminds me all too much of [pause] Soviet Moscow”, when his column had originally stated (with the words omitted in the BBC broadcast marked in bold by Ofcom): “Count me out of the compulsory joy. It reminds me all too much of May Day in Soviet Moscow”. Mr Hitchens said that he was then reproved by the programme’s presenter for the altered sentiment.

By way of background, Mr Hitchens stated in an email to the BBC that he had witnessed May Day in Soviet Moscow so was making a specific comparison based on his own experience, not a general remark and that the presenter’s criticism of his comment would not have been possible if the correct wording had been used.

ii) His views were not reflected in a fair manner, in that the quotation of his newspaper column was read by an actor in an absurdly exaggerated and hostile caricature of his voice.

By way of background, Mr Hitchens added that no other person on the programme (or in previous editions of the programme) has been treated in this way.

Please refer to the complaint form and any accompanying material for full details.

Relevant legislation

Under section 110(1) of the Broadcasting Act 1996 (as amended) (“the Act”), and subject to the remaining provisions of Part V of the Act, Ofcom has a duty to consider and adjudicate on complaints which relate:

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(a) to unjust or unfair treatment in programmes,1

Or

(b) to unwarranted infringement of privacy in, or in connection with the obtaining of material included in, such programmes.

These complaints are collectively referred to as “fairness complaints” by virtue of section 110(4) of the Act.

Part V of the Act (and in particular sections 111 and 114) sets out a number of statutory criteria which must be satisfied before a fairness complaint can be entertained by Ofcom.

“The Person Affected”

Section 111(1) of the Act provides that a “fairness complaint may be made by an individual or by a body of persons, whether incorporated or not, but...shall not be entertained by Ofcom unless made by “the person affected” or by a person authorised by him to make the complaint for him”.

“the person affected” is defined by section 130 of the Act as follows:

(a) In relation to any unjust or unfair treatment in programmes, it means a participant in the programme in question who was the subject of that treatment or a person who, whether such a participant or not, had a direct interest in the subject-matter of that treatment. (“Participant” is further defined by section 130 as meaning a “person who appeared, or whose voice was heard, in the programme”).

And,

(b) In relation to any unwarranted infringement of privacy, it means a person whose privacy was infringed.

Under section 111(7)(a) of the Act, Ofcom may refuse to entertain a complaint of unjust or unfair treatment “if the person named as the person affected was not himself the subject of the treatment complained of and it appears to Ofcom that he did not have a sufficiently direct interest in the subject-matter of that treatment to justify the making of a complaint with him as the person affected”.

In relation to Mr Hitchens’ complaint that he was treated unfairly in the programme as broadcast (as set out in “The Complaint” above”), Ofcom is satisfied that Mr Hitchens meets the applicable requirements of “the person affected” as defined by section 130(a) of the Act.

Ofcom notes that Mr Hitchens was not a participant in the programme as he did not appear in the programme and his voice was not heard. However, Ofcom is satisfied that Mr Hitchens has a “direct interest” in the subject matter of the programme in that his newspaper column was read by an actor, he was referred to by name and his views were directly referred to by the programme’s presenter.

1 Section 130 of the Act defines “unjust or unfair treatment” as including “treatment which is unjust or unfair because of the way in which material included in a programme has been selected or arranged.”

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“Reasonable time”

Section 111(5) of the Act provides that “Ofcom may refuse to entertain a fairness complaint if it appears to Ofcom not to have been made within a reasonable time after the last occasion on which the relevant programme was broadcast or, as the case may be, included in a licensed service.”

In this respect, Paragraph 1.10 of Ofcom’s “Procedures for the consideration and adjudication of Fairness and Privacy complaints” (“Ofcom’s Fairness and Privacy Procedures”) (dated 1 June 2011) provides that complainants should submit their complaint to Ofcom within 20 working days after broadcast of the relevant programme, and that, ordinarily, Ofcom will not accept a complaint which is submitted after this deadline. Where a complaint is submitted later than 20 working days after broadcast, complainants should explain why the complaint was not submitted earlier. Ofcom will then weigh up all relevant factors (including the complainant’s explanation for the delay in submitting the complaint) and decide whether or not it is appropriate for it to consider the complaint despite the delay in its submission.

Ofcom received Mr Hitchens’ complaint form on 14 March 2013. Following the broadcast of the programme on 29 July 2012, Mr Hitchens complained to the Editorial Complaints Unit of the BBC about the programme. He subsequently appealed its decision (not to uphold his complaint as regards an alleged lack of accuracy and of due impartiality in the programme) to the Editorial Standards Committee of the BBC Trust. The BBC Trust published its decision in relation to Mr Hitchens complaint on 12 March 20132. The decision was not to uphold Mr Hitchens’ appeal.

Having regard to the date of publication of the BBC Trust’s decision (i.e.12 March 2013) and the date Ofcom received Mr Hitchens’ complaint (i.e. 14 March 2013), Ofcom considers that the complaint to Ofcom was made within a reasonable time (i.e. two working days after the final decision by the BBC on Mr Hitchens’ complaint) after the BBC completed its consideration of Mr Hitchens’ complaint.

“Legal proceedings”

Sections 114(2) of the Act provides that Ofcom shall not entertain, or proceed with the consideration of, a fairness complaint if it appears to Ofcom:

(a) that the matter complained of is the subject of proceedings in a court of law in the United Kingdom, or

(b) that the matter complained of is a matter in respect of which the complainant or the person affected has a remedy by way of proceedings in a court of law in the United Kingdom, and that in the particular circumstances it is not appropriate for Ofcom to consider a complaint about it.

As to section 114(2)(a) above, Mr Hitchens has confirmed to Ofcom that the matters complained of are not the subject of proceedings in a court of law in the United Kingdom.

As to section 114(2)(b) above, Ofcom considers that, on the information available to it, the matter complained of does not appear to be a matter in respect of which Mr Hitchens (as “the person affected”) has a remedy by way of proceedings in a court of law in the United

2 See: http://downloads.bbc.co.uk/bbctrust/a... at page 20.

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Kingdom, and it is satisfied that it would not be inappropriate in the circumstances to proceed to consider the complaint under this provision.

“Frivolous”

Section 114(2)(c) of the Act provides that “Ofcom shall not entertain, or proceed with the consideration of, a fairness complaint if it appears to Ofcom that the complaint is frivolous.”

Ofcom will normally consider a complaint to be “frivolous” if in its opinion the complaint is unsustainable. Normally this is because the complainant has not provided reasonable grounds on which to base a complaint of unjust or unfair treatment or unwarranted infringement of privacy, and therefore there is not a case for the relevant broadcaster to answer.

In considering whether or not a complaint is sustainable, Ofcom takes into account a number of relevant factors including: a preliminary examination of the programme (including its nature, aim and content); the seriousness of the complaint; and, any exceptional circumstances that may be relevant.

Ofcom first considered Mr Hitchens’ complaint that the omission of the words “May Day in” changed the sense of his comparative statement and the reproof he received would not have been possible if the words had not been omitted. In earlier correspondence with the BBC, Mr Hitchens stated that he was making a specific comparison based on personal experience, not a general remark.

Ofcom took the view that in his column, Mr Hitchens drew a comparison between the London Olympic Games opening ceremony and the predominantly military parades associated with Soviet Russia, specifically the May Day parade. The effect of the removal of the words “May Day in”, in Ofcom’s opinion, was that listeners may instead have understood Mr Hitchens to be making a comparison between the London Olympic Games opening ceremony, and either specifically the Moscow Olympic Games opening ceremony in 1980 or more generally a military or public parade held in the Soviet Union at that time. This was reinforced by the presenter’s comments:

“Really Peter? Really? London 2012 is the Soviet Union 1980. I think not”.

Ofcom considered images of the 1980 Moscow Olympic Games opening ceremony and compared them with historic archive images of May Day parades in Soviet Russia. Ofcom noted that typically May Day parades in Soviet Russia contained elements of communist and military imagery and involved large numbers of individuals marching, or standing, in ordered formations. Ofcom also noted from the images of the Moscow Olympic Games opening ceremony, that these too included communist imagery and involved parades of people in ordered formations. Although there were clearly differences in the nature of these events, Ofcom considered that, in general terms, listeners would not have made a sufficient distinction between these events for this to have been at all likely to have resulted in any unfairness to Mr Hitchens by any mistaken comparison between them.

Ofcom did not consider that the inclusion of the three words “May Day in” would have indicated to listeners that Mr Hitchens was making a comment based on his personal experiences. Ofcom noted that in the full Mail on Sunday column (as published on the Mail Online website3) Mr Hitchens did not indicate his comment was based on his personal experiences. In any case, Ofcom’s view was that the omission in the programme of the fact

3 http://hitchensblog.mailonsunday.co.u...

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or implication that Mr Hitchens was making a specific, rather than a general, statement would not, in itself, have been likely to have altered listeners’ perceptions of him in a material and adverse way that was unfair.

Ofcom also considered the comment by the presenter, as set out above, in which he questioned the appropriateness of comparing the London Olympic Games opening ceremony to the Moscow Olympic Games opening ceremony or similar event. Ofcom considered that the following comment by the presenter: “Really Peter? Really?... I think not” simply expressed the fact that the presenter’s view differed from that of Mr Hitchens and would not have been likely to have altered listeners’ perceptions of Mr Hitchens in a way that was unfair to him. Ofcom recognised that journalists commonly disagree about the nature and interpretation of events. This was such a case and listeners would have understood it in this context.

Ofcom took account of that fact that Mr Hitchens did not, in his complaint form or the supporting material he provided, set out any clear reasons why listeners’ perception of him would have been materially and adversely affected as a result of the inaccurate comparison so as to result in unfairness to him. Given this, and the other factors set about above in relation to head i) of the complaint, Ofcom did not consider that in response to Mr Hitchens’ complaint there was a sustainable case for the broadcaster to answer.

In relation to head ii) of Mr Hitchens’ complaint (that the quotation of his newspaper column was read by an actor in an absurdly exaggerated and hostile caricature of his voice), Ofcom listened carefully to the programme as broadcast. It noted that a number of different actors were used to read the various columns, headlines and tweets featured throughout the programme. Ofcom considered that the representation by the actor of Mr Hitchens’ voice demonstrated some exaggeration, but that this was not excessive, and within the normal parameters for actors’ readings within this light-hearted and topical programme, and so was unlikely materially and adversely to influence listeners’ perceptions of him in a way that could reasonably amount to unfair treatment in the programme.

In reaching this conclusion Ofcom assessed the voices of other politicians and journalists who were featured in the programme. We noted that a tweet from Conservative MP Aidan Burley was read by an actor and that the version of Mr Burley’s voice spoken by the actor was an exaggeration of his voice. Ofcom also noted that the actor who depicted the voice of London Mayor (and journalist) Boris Johnson later in the programme used a similar tone and accent to that used by the actor who depicted Mr Hitchens’ voice.

In Ofcom’s view the programme “What the Papers Say” is an irreverent take on recent events, which features a degree of satire and critical comment, specifically from the viewpoint of the presenter that week, about the views of those in the public eye, generally journalists and politicians. Ofcom recognised that Mr Hitchens considered the way in which his voice was exaggerated to be “hostile”. However, in accordance with the right to freedom of expression, the programme may satirise or even be caustic about the views it critiques, provided it does so in a way that people are not unfairly or unjustly treated. This is an element of the programme that is both well-established and within the boundaries that listeners would expect. In the context of a programme of this nature, Ofcom was not satisfied that Mr Hitchens had put forward a reasonable argument that he had been singled out for unfair treatment.

Given the factors set out above, and in the particular circumstances of this case, Ofcom did not consider that Mr Hitchens has, on the face of it, set out a sustainable case for the broadcaster to answer.

Inappropriate for “any other reason”

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Section 114(2)(d) of the Act provides that “Ofcom shall not entertain, or proceed with the consideration of, a fairness complaint if it appears to Ofcom that for any other reason it is inappropriate for Ofcom to entertain, or proceed with the consideration of, the complaint.”

Ofcom considers that there does not appear to be “any other reason” why it would be inappropriate for Ofcom to entertain, or proceed with the consideration of, Mr Hitchens’ complaint in the circumstances of this case.

Decision

Ofcom has not entertained Mr Hitchens’ fairness complaint as set out in heads i) and ii) under section 114(2)(c) of the Act. This is because it appears to Ofcom that the complaint is frivolous in that Mr Hitchens has not set out a sustainable case either that the way in which his newspaper column was reflected, and in particular the omission of the words “May Day in” from the reference to Soviet Moscow, or the way his voice was portrayed in the programme, resulted in unfairness to him.

26 April 2013