Ofcom’s explanation for undermining their own ruling

Wed 23/07/2008 17:16

From Andrew Morgan, Ofcom

Dear Dean,

Ofcom notes your comments on the reporting of its decision into The Great Global Warming Swindle and the wording in the notification email issued by Ofcom.

Ofcom distributes email notifications with the aim of alerting interested parties to the publication of specific Ofcom documents. As such, it is not always possible in these emails to include all the detail and relevant information behind announcements.

You state that Ofcom did not refer within the notification to specific guidance supporting Rule 2.2 of the Broadcasting Code. This states that the rule is designed to deal with content which materially misleads the audience so as to cause harm or offence. Nevertheless, the notification did state:

“….while Ofcom had concerns about aspects of the presentation (and omission) of facts and views within the programme, it did not believe, given the nature of the programme, that this led to the audience being materially misled. As such, Channel 4 has not been found in breach of Rule 2.2 of the Broadcasting Code.”

This paragraph of the notification focuses on the specific Rule set out in the Broadcasting Code which states:

“Factual programmes or items or portrayals of factual matters must not materially mislead the audience”.

Ofcom could reasonably expect seasoned media correspondents who reported on the Finding to appreciate the significance of the words ‘materially misled’ in the notification and the meaning attached to them under the Code and its guidance.

It is also worth noting that the guidance you discussed was set out in the full findings within Broadcast Bulletin No. 114. In addition, please be reassured that Ofcom’s Media Office communicated this guidance in full to any journalists who contacted Ofcom regarding the outcome of its investigation.

Ofcom takes on board your comments, however in this case Ofcom will not be issuing a correction given the reasons detailed above.

Yours sincerely

Andrew Morgan

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An Ofcom attempt at a brush-off… and my reply

Dear Mr Morrison

Freedom of Information: Right to know request

Thank you for your request for information regarding The Great Global Warming Swindle.

Your request was received on 23 July 2008 and I am dealing with it under the terms of the Freedom of Information Act 2000 (‘the Act’).

Generally any information provided will consist of copies of original documents in paper or electronic format.

Where we hold the information you have requested we will endeavour to answer your request in full and within 20 working days. If we are unable to provide the information requested, we will explain why under the Act the information has not been provided.

If you have any queries then please contact information.requests@ofcom.org.uk. Please remember to quote the reference number above in any future communications.

Yours sincerely

Eleanor Berg

———

Thank you Eleanor,

There is however an outstanding question in my email of yesterday evening, and to which I still require a prompt response:

1. Will OFCOM produce a new Update as a matter of urgency; to correct this error while the matter is still a matter of public discussion; and will you circulate this correction directly to editors of the national media?

I assume that Andrew Morgan or Stewart Purvis will be in touch today with a response to this question?

Regards

Dean Morrison

Ofcom responsible for the misreporting of their own ruling

Tue 22/07/2008 22:57

To Andrew Morgan – Ofcom

Dear Andrew,

I am concerned about widespread reporting such as this:

“TV documentary on global warming did not mislead viewers, says Ofcom “

http://tinyurl.com/5ectw

Which you know is not what the ruling states (page 14):

“The accompanying Ofcom guidance to the Code explains that “Ofcom is required to guard against harmful or offensive material, and it is possible that actual or potential harm and/or offence may be the result of misleading material in relation to the representation of factual issues. This rule is therefore designed to deal with content which materially misleads the audience so as to cause harm or offence.” (Emphasis in original).

Ofcom therefore only regulates misleading material where that material is likely to cause harm or offence.”

and:

“In dealing with these complaints therefore Ofcom had to ascertain – not whether the programme was accurate – but whether it materially misled the audience with the result that harm and/or offence was likely to be caused. It is not within Ofcom’s remit or ability in this case as the regulator of the ‘communications industry’ to establish or seek to adjudicate on ‘facts’ such as whether global warming is a man-made phenomenon, nor is Ofcom able to reach conclusions about the validity of any particular scientific theories.”

and (page 15):

“In summary, in relation to the manner in which facts in the programme were presented, Ofcom is of the view that the audience of this programme was not materially misled in a manner that would have led to actual or potential harm.”

and (page 15/16)

“As a result Ofcom considered it highly unlikely that the programme could have caused actual harm. As to potential harm some complainants had considered that the programme’s questioning of the theory of man-made global warming would create doubt and confusion in viewers’ minds about the need to take action against global warming. Ofcom considers that, although the programme may have caused viewers to challenge the consensus view that human activity is the main cause of global warming, there is no evidence that the programme in itself did, or would, cause appreciable potential harm to members of the public.”

Therefore the headline is wrong, and should include the caveat  “so as to cause harm or offence” to accurately reflect the ruling.

I’d normally consider this to be a matter of poor reporting, coupled with an aggressive damage limitation exercise by Channel 4. I contacted the editors of a number of papers yesterday, and the Guardian at least corrected the story to reflect the actual ruling.

However it now appears to me that the source of this misreporting is OFCOM itself. It would appear that yesterday you published a summary of the ruling in:

“Ofcom Update: Ofcom Broadcast Bulletin issue number 114”

that omitted key information and the vital caveat:-

“In addition, while Ofcom had concerns about aspects of the presentation (and omission) of fact and views within the programme, it did not believe, given the nature of the programme, that this led to the audience being materially misled.  As such, Channel 4 has not been found in breach of Rule 2.2 of the Broadcasting Code.”

-and much of the media would seem to have simply repeated this without checking to see if it fairly reflected the actual ruling – which has allowed Channel 4 to incorrectly claim that they have been vindicated by OFCOM on these matters of fact.

Therefore as a matter of urgency:

1. Who was responsible for producing the “Ofcom Update”? and who authorised its publication?
2. Were the contents of the “Ofcom Update” agreed with the panel that made the ruling?
3. If this is not the case, I feel that OFCOM has made a grave error in a matter of great public interest, and will seriously consider making a complaint about OFCOM itself.
4. Will OFCOM produce an new Update as a matter of urgency;  to correct this error while the matter is still a matter of public discussion; and will you circulate this correction directly to editors of the national media?

Regards

Dean Morrison

Leaks to Channel 4 – and their Guardian ‘spoiler’

Dear Andrew,

On a separate matter it seems that the ruling was ‘leaked’ to the media at the weekend – in a way which laid the ground for the ‘spin’ that Channel 4 seem to be putting on the story today.

I understood that the ruling was under strict embargo, and that any breach of this would be considered very seriously indeed?

I would like you to look at the Guardian article this weekend, which not only seemed to have some advance insight into your ruling, but also the position that Channel 4 was planning to take on the matter:

http://www.guardian.co.uk/media/2008/jul/19/channel4.climatechange

“In a long-awaited judgment following a 15-month inquiry, Ofcom is expected to censure the network over its treatment of some scientists in the programme, The Great Global Warming Swindle, which sparked outcry from environmentalists.

Complaints about privacy and fairness from the government’s former chief scientist, Sir David King, and the Nobel peace prize-winning Intergovernmental Panel on Climate Change will be upheld on almost all counts, the Guardian has learned.

But it is understood that Channel 4 will still claim victory because the ultimate verdict on a separate complaint about accuracy, which contained 131 specific points and ran to 270 pages, will find that it did not breach the regulator’s broadcasting code and did not materially mislead viewers.

The detail of the ruling is expected to criticise Channel 4 over some aspects of the controversial programme, made by the director Martin Durkin, but executives will argue that the key test of whether it was right to broadcast the programme has been passed.” (my emphasis)

To me that indicates that the leak came from someone with intimate knowledge of the intentions of Channel 4 executives – and that this leak is therefore a ‘spoiler’ intended to frame any debate to Channel 4’s advantage.

If so this would seem to be an abuse of your procedures, and Channel 4’s responsibilities to you.

Could you tell me whether you will be investigating this ‘leak’, and what action you would take if it was found to originate in Channel 4?

As for my individual complaint – I will await your letter to me before giving you a formal response…

Yours sincerely

Dean Morrison

First response from Ofcom

Mon 21/07/2008 17:22

Dear Dean

A copy of Ofcom’s decision has been sent to you this afternoon in response to your complaint.

Your email of this afternoon to Stewart Purvis has been passed to me for reply.We have noted your comments in relation to the interview given by Hamish Mykura to the BBC today.

We will examine the interview and take any steps that are appropriate in the circumstances.

Yours sincerely

Andrew Morgan

Mon 21/07/2008 15:37

To Stewart Purvis of OFCOM:

Dear Mr Purvis,

I believe that Hamish Mykura has been misrepresenting today’s ruling on “The Great Global Warming Swindle” – to make the claim that the programme has been vindicated on matters of fact – when reality your judgement says:

“The accompanying Ofcom guidance to the Code explains that “Ofcom is required to guard against harmful or offensive material, and it is possible that actual or potential harm and/or offence may be the result of misleading material in relation to the representation of factual issues. This rule is therefore designed to deal with content which materially misleads the audience so as to cause harm or offence.” (Emphasis in original).

Ofcom therefore only regulates misleading material where that material is likely to cause harm or offence. As a consequence, the requirement that content must not materially mislead the audience is necessarily a high test. In dealing with these complaints therefore Ofcom had to ascertain – not whether the programme was accurate – but whether it materially misled the audience with the result that harm and/or offence was likely to be caused. It is not within Ofcom’s remit or ability in this case as the regulator of the ‘communications industry’ to establish or seek to adjudicate on ‘facts’ such as whether global warming is a man-made phenomenon, nor is Ofcom able to reach conclusions about the validity of any particular scientific theories.” ( Page 14)

I understand the ruling to mean that you were making a judgment about whether the presentation of misleading information was likely to cause ‘harm or offence’ – and your ruling specifically did not adjudicate on ‘facts’ – or in any way endorse the content of the programme – which is the impression Mr Mykura seeks to achieve in this BBC interview:

http://news.bbc.co.uk/1/hi/sci/tech/7517595.stm

(from this web-page)

http://news.bbc.co.uk/1/hi/sci/tech/7517509.stm

Please could you listen to the interview, and issue a public clarification if you are in agreement,

Regards

Dean Morrison

On seeing Ofcom’s ruling misreported

I write regarding this article:

http://www.guardian.co.uk/media/2008/jul/21/channel4.ofcom

Where I believe you are misreporting the OFCOM ruling on “The Great Global Warming Swindle”.

It’s untrue to say that the OFCOM ruled that the programme did not ‘materially mislead’ the viewers – and I’m surprised to see the Guardian repeating Hamish Mykura’s spin, without looking at the ruling (page 14)

“The accompanying Ofcom guidance to the Code explains that “Ofcom is required to guard against harmful or offensive material, and it is possible that actual or potential harm and/or offence may be the result of misleading material in relation to the representation of factual issues. This rule is therefore designed to deal with content which materially misleads the audience so as to cause harm or offence.” (Emphasis in original).

Ofcom therefore only regulates misleading material where that material is likely to cause harm or offence. As a consequence, the requirement that content must not materially mislead the audience is necessarily a high test.

In dealing with these complaints therefore Ofcom had to ascertain – not whether the programme was accurate – but whether it materially misled the audience with the result that harm and/or offence was likely to be caused. It is not within Ofcom’s remit or ability in this case as the regulator of the ‘communications industry’ to establish or seek to adjudicate on ‘facts’ such as whether global warming is a man-made phenomenon, nor is Ofcom able to reach conclusions about the validity of any particular scientific theories.”

Therefore Ofcom concluded the broadcasters did not intend to cause “harm or offence” – but made no judgement as to whether the public had been misled or not…

Please stop helping Channel 4 in their damage limitation exercise.

Regards

Dean Morrison

Hastings

Ofcom’s materially misleading “Swindle”

There follows correspondence between myself and Ofcom on their ruling, and in particular on their own misrepresention of their own ruling – on the “Great Global Warming Swindle” mockumentary…

Let the Fisking begin!!