UK

Expert assessment: Sanctions

Ofcom’s sanctioning authority does include the power to revoke licenses, but not for public service broadcasters (BBC, Channel 4 and S4C), the print press (which is managed by the self-regulatory body, the Press Complaints Commission) or online media (unless that content is operated by a television or radio broadcaster). It is also true the law does not specify as to what breaches may justify the prescription of which types of sanctions, thereby leaving such matters to be decided by Ofcom. However, Ofcom has fixed internal regulations in place outlining broadcasting codes and rules related to competition and consumer protection. It is obliged to produce these codes under law, outlining any standards which, if breached, may lead to penalties. Ofcom must also publish its decisions, clearly outlining in what way a breach of standard has occurred. If Ofcom decides against a broadcaster, that broadcaster has the opportunity to request a review of the decision.

Ofcom’s sanctioning powers can be initiated as a result of citizen and consumer complaints or ex officio. These powers are established in a range of media-related legislation, including the Communications Act of 2003,266 the Competition Act 1998,267 the Enterprise Act 2002, the Broadcasting Act 1990, the Broadcasting Act 1996, and the EU Regulations and the Wireless Telegraphy Act 2006. In 2005, Ofcom also introduced a set of codes clearly outlining broadcasting standards that apply to all broadcasters, including the BBC and S4C.268 When a broadcaster breaches these codes deliberately, seriously or repeatedly, Ofcom may impose statutory sanctions against the broadcaster.269 Sanctions available to Ofcom include: a decision to issue a direction not to repeat a programme or advertisement; a direction to broadcast a correction or a statement of Ofcom’s findings; the imposition a financial penalty; the decision shorten or suspend a license (only applicable in certain cases); and/or the decision to revoke a license (not applicable to the BBC, S4C or Channel 4).

The Communications Act 2003 requires Ofcom to prepare and publish a statement containing the guidelines for determining the amount of penalties imposed by Ofcom under the Communications Act or any other enactment (apart from the Competition Act 1998).270 These guidelines are focused on weighing appropriate and proportionate penalties to ensure compliance.

In most cases the maximum financial penalty for commercial TV or radio licensees is £250,000 or 5 percent of the broadcaster’s “Qualifying Revenue,” whichever is greater. For licensed public service broadcasters the maximum financial penalty is 5 percent of its “qualifying revenue.” For the BBC and S4C, the maximum financial penalty is £250,000.271

There have been several prominent cases in which Ofcom fined a broadcaster for breaches to the broadcasting codes: In 2009, for instance, Ofcom fined the BBC a record £150,000 for broadcasting “gratuitously offensive, humiliating and demeaning” prank phone calls aired over a BBC radio show made by Russell Brand and Jonathan Ross to actor Andrew Sachs.272

Ofcom is also empowered to revoke a license for breaches to the broadcasting codes as well as for violating condition of licenses and spectrum agreements, and for non-payment of license fees.273 Procedures for revocations start with a notification stating the reason for revocation and specifying the duration of the suspension or revocation. In the broadcasting sector, its revocation powers extend to commercial radio and television and do not include the BBC, S4C or Channel 4.

In 2010, Ofcom revoked four TV broadcast licenses owned by Bang Channels Limited and Bang Media Limited following serious and repeated breaches of the broadcasting code on the protection of viewers under 18.274 The licensees provided the following free-to-air adult chat services: Tease Me; Tease Me TV and Tease Me 2 and 3, in which viewers contact the on-screen female presenters via premium rate telephony services (“PRS”). During the daytime, the channels are not permitted to promote adult chat services and the material must be suitable for a pre-watershed audience (before 9 p.m. and after 5:30 a.m.), as defined by the broadcasting code.275 Ofcom had previously fined the two companies a total of £157,250 for serious breaches of the broadcasting code and other license conditions.

Appeals against OFCOM’s decisions can be made to OFCOM, however all of Ofcom’s decisions are subject to judicial review. The Communications Act also provides for appeals regarding competition-related decisions to be appealed in the Competition Appeal Tribunal (CAT), a special judicial body that decides cases involving regulatory issues in the UK. Decisions by that body can be appealed in the appropriate regional court.

265 This example was cited by the Hungarian Government under “Criticism 1” and “Criticism 18,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at:http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/criticisms-and-answers-formulated-on-the-subject-of-the-proposed-media-act-examined-in-a-european-context 266 See the Communications Act 2003 at: http://www.legislation.gov.uk/ukpga/2003/21/contents. 267 See the Competition Act 1998, at: http://www.oft.gov.uk/shared_oft/business_leaflets/ca98_guidelines/oft417.pdf. Under the Competition Act 1998, Ofcom may issue such directions as it considers appropriate to bring infringements to an end in relation to anti-competitive agreements or abuses of a dominant position as set out in Chapter 1 and II of the Competition Act 1998 and Articles 81 and 82 of the EC Treaty. It also has the power to impose financial penalties up to 10 percent of the worldwide turnover of the undertaking concerned. 268 See Ofcom’s Broadcasting Codes at: http://stakeholders.ofcom.org.uk/broadcasting/broadcast-codes/broadcast-code/. 269 http://stakeholders.ofcom.org.uk/broadcasting/guidance/complaints-sanctions/procedures-statutory-sanctions/ 270 http://www.ofcom.org.uk/files/2010/06/penguid.pdf. 271 http://stakeholders.ofcom.org.uk/broadcasting/guidance/complaints-sanctions/procedures-statutory-sanctions/ 272 See “BBC Brand/Ross fine,” Ofcom: http://consumers.ofcom.org.uk/2009/04/bbc-brandross-fine/ 273 Procedures for the consideration of statutory sanctions in breaches of broadcast licenses http://stakeholders.ofcom.org.uk/broadcasting/guidance/complaints-sanctions/procedures-statutory-sanctions/ 274 See Ofcom Broadcasting Code on “Protecting the Under Eighteeens.” http://stakeholders.ofcom.org.uk/binaries/broadcast/guidance/831193/section1.pdf. 275 See Ofcom Broadcasting Code on “Protecting the Under Eighteeens.” http://stakeholders.ofcom.org.uk/binaries/broadcast/guidance/831193/section1.pdf.