Ofcom clears ITV for Piers Morgan’s controversial comments about Meghan Markle

Prince Harry and Meghan Markle going to church at Sandringham on Christmas Day 2017 | Source: Wikimedia Commons

Dr. Alexandros Antoniou, School of Law, University of Essex

On 1 September 2021, Ofcom, the UK’s communications regulator, rejected a record of complaints about Piers Morgan’s comments on Good Morning Britain in the wake of the Duke and Duchess of Sussex’s interview with Oprah Winfrey.

Good Morning Britain (GMB) is a weekday morning news and discussion programme broadcast on ITV. On 8 March 2021, GMB was dominated by the interview between Oprah Winfrey and the Duke and Duchess of Sussex which had been broadcast overnight in the USA. Excerpts from the interview had been made publicly available ahead of its full broadcast in the UK that evening. The programme included a report on how the US was reacting to the interview and focused on two parts which revealed that the Duchess had contemplated suicide and that an unnamed member of the Royal Family had raised concerns about “how dark” her son’s skin colour might be.

The following day, the lead presenter Piers Morgan made it very clear during the show that he did not believe a word of what Megan Markle had said, adding that if she read him a weather report, he wouldn’t believe it. Mr. Morgan stormed off the GMB set after clashing with weather presenter Alex Beresford over his controversial remarks. By the end of the day, the mental health charity Mind had released a statement showing their deep concern over the statements aired in the show. This was rather awkward for ITV because of their 2021 Get Britain Talking mental wellness campaign, in which Mind is a partner. A strong public reaction ensued. Ofcom received more than 57,000 complaints about Mr. Morgan’s comments on GMB, making it the most complained about TV show in Ofcom’s history. The same evening, ITV announced that the GMB host resigned from his role on the show after six (often confrontational) years.

The complaints received by the regulator can be grouped under two main categories. The first category related to concerns about Morgan’s statements on the Duchess of Sussex’s revelations about her mental health and suicidal feelings. The second category related to concerns about the presenter’s dispute of the Duchess’ personal account of her experiences of racism within the Royal Family during her time as a senior royal. The programme in question raised issues under Section Two of the regulator’s Broadcasting Code which outlines standards for broadcast content in respect of harm and offence.

In particular, the rules engaged were Rule 2.1 which provides that “generally accepted standards must be applied to the content of television and radio services […] so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material” and Rule 2.3 which requires that broadcasters must ensure that potentially offensive material is justified by the context. Under the latter, racist terms and material should be avoided unless their inclusion can be justified by the editorial content of the programme.

As far as the discussion of mental health and suicide in the programme is concerned, Ofcom held in a 97-page-long ruling that Piers Morgan was entitled to hold and express strong views that scrutinised the veracity, timing and possible motivations behind the allegations made by the Duke and Duchess of Sussex. Their interview was a major international news story that was a legitimate subject for debate in the public interest. Restricting such views would be “an unwarranted and chilling restriction” to the broadcasters’ right to freedom of expression and the audience’s right to receive information and ideas without undue interference (Article 10 of the ECHR). However, while the Broadcasting Code does not seek to curb broadcasters’ right to include contentious viewpoints, compliance with the Code’s rules must be ensured.

The regulator expressly acknowledged that Piers Morgan’s statements of disbelief of Meghan Markle’s suicidal thoughts had the potential to cause harm and offence to viewers. Without adequate protection by broadcasters, audience members (some of whom were likely to place weight on the presenter’s opinions) may have been discouraged from seeking mental health support for fear of facing a similar reaction. As the Chief Executive of Mind explained in the charity’s statement: “[…] when celebrities and high-profile individuals speak publicly about their own mental health problems, it can help inspire others to do the same. Sharing personal experiences of poor mental health can be overwhelming, so it’s important that when people do open up about their mental health they are met with understanding and support.”

Ofcom underlined their concerns about Mr. Morgan’s apparent disregard for the seriousness of anyone expressing suicidal thoughts, but nevertheless took the view that the robust and direct challenge to his comments from other programme contributors provided important context for viewers throughout the programme. “Overall, adequate protection for viewers was provided and the potentially harmful and highly offensive material was sufficiently contextualised,” Ofcom concluded. Thus, on balance, the programme was not found in breach of Rules 2.1 and 2.3 in respect of the discussion on mental health and suicide. Although the regulator ruled in Mr. Morgan’s favour, it reminded ITV to be more cautious when discussing sensitive issues around mental health, e.g., through the use of timely warnings or signposting of support services.

A similar reasoning was followed in relation to the second category of complaints about race. Ofcom considered that the conversations in the programme provided an open and frank debate on the nature and impact of racism, about which there is a high public interest value. Given the seriousness of the allegations made in the interview to Oprah Winfrey, it was legitimate to discuss and scrutinise these claims. The programme included, however, several contributors who could speak “decisively and with authority” on racial issues, meaning that a range of views was represented, and Mr. Morgan’s comments were directly challenged on several occasions. Despite the strong opinions expressed in the programme, which could be highly offensive to some viewers, any potential offence was justified, according to the regulator’s view, by the broader context; hence, the comments were not found to be in breach of Rule 2.3 of the Code.

Speaking at a Royal Television Society conference in September 2021, the Chief Executive of Ofcom Dame Melanie Dawes defended the regulator’s ruling as a “quite a finely balanced decision” but “pretty critical” of Piers Morgan. However, BBC presenter Clive Myrie, who interviewed Dame Dawes at the event, told her: “The media forums that I’m on, which include a lot of black broadcasters and producers and people in the industry, were very upset at the Ofcom ruling concerning Piers Morgan, which was about his comments and views on mental health issues, but that race element is there. And their sense is that it [Ofcom] is too white an organisation and would never understand why that ruling was so upsetting to so many people.”

Piers Morgan was recently nominated for best TV presenter at the 2021 National Television Awards. On 15 September 2021, it was reported that he would be joining a Rupert Murdoch-owned network as a host of a new show that is planned to air in the US, UK and Australia.


This piece was first published on the IRIS Merlin legal database and is reproduced on our blog with permission and thanks. The original article can be accessed here.

Advertising Watchdog Warns Instagram Influencers over Compliance

Photo by Jakob Owens

Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 18 March 2021, the Advertising Standards Authority (ASA), the UK’s regulator of advertising across all media, published its research on whether influencer ads are appropriately disclosed on social media. The regulator’s report revealed a “disappointing overall rate of compliance” with its rules requiring ads on social media to be clearly signposted as such.

The UK Code of Non-broadcast Advertising and Direct and Promotional Marketing (CAP Code), which applies to ads in all non-broadcast media, including digital platforms, requires that marketing communications must be “obviously identifiable” as such (Rule 2.1). There are equivalent rules in the Code for broadcast media. Marketers must leave consumers in no doubt over when they read, “like” or otherwise engage with advertising content. This is underpinned by the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). If influencers fail to make it sufficiently clear that they are being paid to promote a product or service, they are in breach of the CAP Code. The brands with which non-compliant influencers are working are held equally responsible for failing to adequately disclose advertising content.

The prominent use of #ad is recommended by the ASA as the clearest way of communicating the nature of advertising content. Alternatively, transparency can also be promoted by using a platform’s own branded content tools, e.g., Instagram’s Paid Partnership tool which can help communicate the existence of a commercial relationship between a creator and a business.

In 2020, the number of complaints received by the regulator about influencers increased by 55% from the previous year. This is despite the advisory information that has been made available by the ASA on “making clear that ads are ads” and a series of rulings on inadequately labelled influencer advertising. As the regulator’s 2021 Influencer Monitoring Report notes, the ASA continues to see “far too many incidences of non-disclosure”.

Although the Authority’s rules on appropriate ad disclosure apply to all types of media where influencers choose to advertise, the ASA’s assessment focused on Instagram content because the majority of complaints tended to be raised in relation to this platform and its features. For the purposes of its monitoring exercise, approximately 24 000 individual Instagram “Stories” across 122 UK-based influencers were assessed over a three-week period in September 2020. The regulator identified nearly one in four of these Stories as marketing (as opposed to editorial content). Compliance rates were “far below” what was anticipated. The ASA considered that 65% of these ads were insufficiently labelled as advertising. Ads in the beauty, food and fitness, clothing and leisure sectors were found to have particularly low rates of compliance.

More specifically, the following shortcomings emerged:

  • first, inconsistent disclosure of ad content spanning a number of consecutive Stories;
  • second, instances where posts, IGTV or Reels content were accurately disclosed as an ad but their corresponding Story was not;
  • third, poor visibility of labelling (e.g., small fonts) which made it difficult to spot an ad; fourth, lack of clarity in disclosing affiliate content (i.e. a marketing model whereby an affiliate generates traffic to a brand’s website in exchange for a commission, usually a percentage of sales) which still counts as advertising; and
  • finally, instances where influencers relied on bios or previous posts to communicate to consumers their connection to a product.

The ASA put on notice all the influencers monitored (including the brands that featured in undisclosed ads) and requested assurances of future compliance. Enforcement action is likely to be taken if follow-up monitoring spot checks indicate further instances of non-compliance. This might include promoting their non-compliance not only through the regulator’s website but also through its own targeted paid search ads.

This piece was first published on the IRIS Merlin legal database and is reproduced here with premission and thanks.

UK Radio Station Sanctioned by Ofcom over Coronavirus Conspiracy Theories

Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 7 December 2020, Ofcom, the UK’s communications regulator, found that The Family Programme, a live radio broadcast, featured potentially harmful statements about the COVID-19 pandemic without adequate protection for listeners.

The regulator currently prioritises cases linked to the coronavirus where programmes may have helped spread misinformation or included misleading material about the illness and public policy in relation to it. The Family Programme is broadcast every Sunday on New Style Radio 98.7 FM, which is a community radio station providing a service for Afro-Caribbean communities in Birmingham. The licensee for this service is the Afro-Caribbean Millennium Centre (ACMC).

During the programme, a number of “highly contentious, unevidenced conspiracy theories about the coronavirus” were set out. In its ruling, Ofcom highlighted controversial allegations that wearing face masks can “cause serious neurological and respiratory damage”, as well as suggestions that Bill Gates intended to reduce the world population, and mark and control 7 billion humans through vaccination. At the time of the broadcast, human and clinical trials were ongoing around the world to develop and deploy an effective vaccine, which is recognised by the scientific and medical community (and endorsed by the World Health Organisation) as the key to controlling and potentially defeating the COVID-19 pandemic. Ofcom was particularly concerned that such unsubstantiated claims would cause harm to listeners by undermining confidence in any future roll-out of a vaccination programme.

The presenter, Simon Solomon, referred to the crisis as an orchestrated “plan-demic” linked to the roll-out of 5G, and repeated without challenge throughout the programme the suggestion that “government and WHO policies are deliberately aimed at killing people.” Much of the discussion centred around a document written and a video presented by conspiracy theorist Claire Edwards, both of which have been discredited by fact-checking initiatives or trustworthy media organisations. Ofcom expressed serious concerns that such allegations could lead listeners to disregard public authorities’ advice and the social distancing measures intended to protect public health (especially at a time when coronavirus cases were rising and the government had just announced a second national lockdown in England).

The regulator rejected the presenter’s arguments that he had not endorsed Claire Edwards’ claims. In its view, the presenter had increased the potential for harm by lending the contents of those claims further credibility and adding greater weight: “listeners would have been left in no doubt that the presenter supported the contents of Ms. Edwards’ documents.” ACMC accepted the regulator’s findings and mentioned in its response that, as Mr. Solomon was a “very experienced” presenter, they “could not have possibly envisaged” that he would present a programme containing potentially harmful material. The licensee also stated that The Family Programme broadcast at issue could be seen as an “aberration” and believed that it constituted an “exception” to their normal high standards of professionalism.

In considering whether ACMC had provided listeners with “adequate protection” from this potentially harmful material (as Rule 2.1 of the Ofcom Broadcasting Code requires), Ofcom ruled that the disclaimer given by the presenter at the beginning of the programme had the potential to compound the potential harm to members of the public: “Rather than provide a warning about the unsubstantiated and controversial nature of the conspiracy theories put forward in the programme, in our view [the disclaimer] denigrated listeners who did not subscribe to them and cast doubt on the veracity of mainstream and credible sources of information about the coronavirus pandemic.” Moreover, according to Ofcom, Mr. Solomon had presented highly contentious claims as unequivocal facts and uncritically guided listeners to use the programme as the basis for their research.

Ofcom considered the steps ACMC had taken to mitigate the potential for harm following the broadcast of the programme; these were the suspension of the programme and its presenter, as well as the broadcast of “a special programme” about the coronavirus, which was aired on 15 November 2020 at the same time as the original programme and which “comprehensively refuted all the conspiracy theories” included in the initial broadcast.

The regulator emphasised that broadcasting views which question official authorities on public health information is not in principle prohibited and acknowledged the presenter’s right to discuss contentious viewpoints. However, in doing so, broadcasters must ensure compliance with the Code. Despite the actions taken by the licensee, the regulator was of the opinion that there were not sufficient measures in place to ensure that listeners were protected from the inclusion of “potentially extremely harmful material” in this programme, which was broadcast for two hours “without sufficient warnings, context or challenge during a public health crisis.”

As a result, Ofcom found that New Style Radio had committed a serious breach of the Broadcasting Code and directed the station to broadcast a summary of its ruling. The regulator has yet to give a final verdict regarding a suitable sanction, which could determine whether Solomon shall continue on the station as a presenter.

This article originally appeared on the IRIS Merlin legal database and is reproduced here with permission and thanks.

Marketers in Hot Water: ASA Rulings During the COVID-19 Crisis

Photo by Luca Bravo

Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

Being conscious of its regulatory role during the ongoing global health crisis, the Advertising Standards Authority (“ASA”), the UK’s regulator of advertising across all media, aims to act with due regard to the circumstances faced by businesses in the current emergency. Since the beginning of the pandemic, the regulator seems to have adopted a layered approach to the implementation of its rules.

‘Forbearance’

Following the Chancellor’s reference to “possible regulatory forbearance” in his March 2020 speech on the government’s measures to address the economic emergency, the regulator announced it would adjust accordingly its regulatory approach towards relatively minor advertising indiscretions by businesses facing an “existential threat” e.g., the hospitality industry, event organisers etc.

Where a marketer, for example, was unable to carry out or had to rethink elements of a promotion because the impact of COVID-19 had derailed their original plans (e.g., by creating unanticipated high demand of a product or service) and failed to put in place suitable management measures to justify amending a promotion and communicate this to consumers in a timely fashion, a more light-touch approach may be warranted where a breach of the rules on promotional marketing could not have sensibly been foreseen. Or, an advisory rather than investigatory approach may be adopted where it was the first time a complaint was raised against an advertiser.

A tougher approach

During a period which saw an intense sale of high-demand products (e.g., hand sanitisers), the regulator seems to have escalated its regulatory interventions in cases where marketers have unfairly taken advantage of the ongoing global disruption for financial gain or acted in a way that disadvantages consumers. Key areas of concern that have emerged so far include medical claims about COVID-19, alternative and complementary therapies, food supplements as well as irresponsible advertising practices.

The regulator is likely to take a dim view of an advertiser who makes unsubstantiated ‘medical or medicinal claims’ as such claims may only be made with respect to licenced medicines or appropriately marked medical devices in compliance with Sections 11 and 12 of the BCAP and CAP Codes respectively. For example, the ASA banned a paid-for Facebook ad and a website post for a COVID-19 test provider which gave the impression that a positive antibody test would show that people were immune to the virus (ASA Ruling on XMedical Ltd t/a Corona Test Centre, 14 Oct. 2020). The regulator also banned an ad in The Sun making unsubstantiated claims that a reusable copper-infused face mask would instantaneously kill particles of COVID-19 that came into contact with it (ASA Ruling on Easylife Group Ltd, 11 Nov. 2020).

Unsubstantiated reduction of disease risk claims or claims that food supplements can prevent or treat coronavirus infection can be particularly problematic. The ASA targeted, for example, Instagram posts from the accounts of Cosmetic Medical Advice employees which implied that an intravenous fluid drips treatment could help prevent people from catching coronavirus (ASA Ruling on Cosmetic Medical Advice UK, 22 Apr. 2020). In an another ruling, a national newspaper ad for a brand of honey was banned for implying that it could be used as a treatment for coughs and that its “anti-microbial” properties could prevent or treat human diseases (ASA Ruling on Manuka Doctor UK Ltd, 6 Jan. 2021). Sections 13 and 15 of the BCAP and CAP Codes limit nutrition claims about foodstuffs to only those expressly listed as authorised on the EU Register of Health Claims.

Moreover, the ASA tends to rely on its general rules on social responsibility (Section 1 of the BCAP and CAP Codes) and material misleadingness (Section 3 of the BCAP and CAP Codes) when targeting ads that seek to profit from the ongoing public health emergency. For instance, in December 2020, following complaints by Stella Creasy, Labour/Co-operative Member of Parliament of the United Kingdom, the ASA banned four Instagram posts made by influencers in association with Klarna Bank for promoting the use of the company’s deferred payment service in an “irresponsible manner” in breach of the advertising code (Ruling on Klarna Bank AB, 23 Dec. 2020). The controversial ads encouraged the use of credit to purchase beauty and clothing products in order to help with boosting people’s mood during the challenging circumstances faced by many consumers in the national coronavirus lockdown period.

More recently, the ASA banned Ryanair’s “jab and go” TV campaign on the grounds that it encouraged the public to act irresponsibly once they had received a coronavirus vaccination shot (Ruling on Ryanair DAC, 3 Feb. 2021). The ban came just days after the Ryanair chief executive, Michael O’Leary, stated in a BBC Radio 4 interview that he expected a revival of European beach holidays in summer 2021.

The Ryanair ruling deserves perhaps a more detailed consideration because it is the first ad with a marketing message about emerging from the pandemic that was found in breach of the regulator’s rules.

‘Jab & Go!’: addressing the post-COVID-19 life

The two controversial television advertisements launched on Boxing Day and were seen between 26 December 2020 and 4 January 2021. The first ad featured a medical syringe and a small bottle labelled “vaccine” along with on-screen text stating “vaccines are coming”. The voice-over encouraged consumers to snap up Easter and Summer bargain deals to sunny European countries like Italy and Greece, because “you could jab and go”. Footage also showed people in their 20s and 30s at holiday destinations. During the last few seconds of the ad further on-screen text reinforced the same message with large lettering stating: “Jab & Go!” The second ad was similar, except that it included a different price offer.

The advertisements attracted 2,370 complaints and were challenged on three grounds: first, that the ads, and particularly the “Jab & Go” claim, were misleading because they gave the impression that large parts of the UK population would be vaccinated against COVID-19 by Summer 2021 and unaffected by travel restrictions related to the pandemic; second, that the promotional statements in the ads were offensive because they trivialised the effects of the pandemic on society; and finally, that the ads encouraged people to behave irresponsibly once they received a coronavirus vaccination shot.

The commercial aircraft carrier submitted that their ads were first broadcast at a time during which the government continued to give “optimistic briefings” implying that a significant proportion of the population would be vaccinated midway through the year. In addition to the timing of the ads’ broadcast, the general public’s familiarity with information about the vaccines, the rollout schedule, the continuously changing international travel restrictions and inherent uncertainty in the travel industry, as well as the use of conditional language in the voice-over (“could”), were all important contextual factors which would enable the average viewer to understand the ads envisaged “a hypothetical Easter or summer holiday.”

However, it was exactly this context, marked by uncertainty and complexity, that placed an additional level of responsibility on advertisers to act cautiously when linking developments in response to the coronavirus pandemic with buyers’ decision-making processes, especially at a time when consumers were likely to feel apprehensive about booking holidays.

A misleading and irresponsible ad

The ASA found that both ads breached Rule 3.1 of the UK Code of Broadcast Advertising (BCAP Code) by materially misleading consumers about the impact that COVID-19 vaccines would have on their ability to travel abroad during Easter and summer 2021. The regulator considered that the information available at the time the ads were broadcast left no doubt that it was “highly unlikely” that societal groups falling outside the priority list for ‘phase one’ of the planned vaccination rollout schedule (i.e., the most vulnerable individuals in society) would be maximally protected in time to go on holiday in either Summer or Easter 2021.

Moreover, while the vaccines have been proved to provide some protection against developing serious illness, much is unknown about how the vaccine may prevent its spread from one person to another. Hence, vaccinated individuals are advised to continue adhering to social distancing and wearing face coverings. Such measures were likely to remain in place for both vaccinated and non-vaccinated people “in at least the short- to medium-term”, the ASA stressed.

The overall impact created by the elements of the ad, including links to the planned vaccination rollout in the ad and the accompanying footage (featuring a group of young people jumping together into a pool and a couple being served by a waiter without a mask) overshadowed the conditionality of the word “could” and conveyed a misleading message: i.e., that most people who wished to go on holiday would be vaccinated in time to be in a position to do so and could go on holiday without restrictions as a direct result of being vaccinated against COVID-19.

The ads were also found to have breached Rule 1.2 of the BCAP Code, which requires marketers to prepare advertisements with a sense of responsibility to the wider society. The emphasis on the vaccines from the very outset, as well as the suggestion of immediacy and speed of access through the claim “Jab & Go”, encouraged people to behave irresponsibly by prompting those not yet eligible to be vaccinated to arrange vaccination at a time when health services came under intense strain. Moreover, the featured imagery of people enjoying typical holiday activities without observing social distancing would lead some viewers to infer that it was possible for anyone to get vaccinated by Easter or summer 2021 and go on holiday once vaccinated without necessarily adhering to restrictions, posing risks for their own and others’ health.

But not an offensive ad

The ASA ruled, however, that the Ryanair ads did not breach the harm and offensiveness rules under Section Four of the BCAP Code. Although their “celebratory” tone was “distasteful” to some viewers, they were not found to be insensitive to the wider impact of the pandemic and were unlikely to cause serious or widespread offence against generally accepted societal standards. Presumably, the position would have been different, had the ad made light of the emotional toll the pandemic has taken on individual and collective well-being or otherwise trivialised its effects.

Interestingly, the evaluation made by Clearcast, the non-governmental organisation which pre-approves ads for broadcast on the UK’s main commercial channels, was out of step with the ASA’s assessment. Clearcast took the view that the Ryanair ads contained “a hopeful message” that holidaying in summer 2021 without social distancing was a real possibility and when the ads were approved (when England was coming out of its second lockdown) “it looked like better times were coming”.

The Ryanair ruling serves as a useful reminder that, in the aftermath of the Prime Minister’s announcement about England’s roadmap for easing coronavirus measures, marketers who promote services or events that necessitate lifting of business or travel restrictions need to exercise caution when dealing with post-lockdown life. This is especially the case when links are made between fast-moving developments in the country’s response to the pandemic and the consumer’s confidence in purchasing a product or service. Finally, the Ryanair ad creates an opportunity to look into the regulator’s approach to the application of its harm and offence rules in the COVID-19 context.

Harm and offence in the time of coronavirus

At the time of writing, and since the onset of the pandemic, only five coronavirus-related rulings engaged the harm and offensiveness rules under Section Four of the advertising codes. With the exception of the Ryanair ruling, complaints were upheld in all four cases. However, only one of those was found to have crossed the line in terms of harm. The ASA’s justifications for banning the remaining three were couched in offensiveness terms.

More specifically, a newspaper and Instagram post by a hemp shop were deemed ‘harmful’ because they described COVID-19 as a “hoax” and “incited” people to break the law by discouraging them from wearing face coverings in shops (ASA Ruling on Geraint Christopher t/a Hemp in Avalon, 2 Dec. 2020). Concerns about harm in coronavirus-related advertising content seem to be associated with marketing messages which raise the risk that consumers’ trust in public health advice could be undermined, with potentially serious consequences not only for their own but also others’ health. This broad approach to societal harm is noteworthy in this context. Some parallels may be drawn with the Ofcom’s (the UK’s communications regulator) approach, which has also found harm arising from broadcast content contradicting official governmental guidance.

Offensiveness manifested itself in a product listing on Amazon as well as paid-for display ads and website claims about face coverings that made use of alarmist language likely to cause fear without justifiable reason (ASA Rulings on Easy Shopping 4 Home Ltd and Novads OU, 4 Mar. 2020). A newspaper ad for mattresses was also banned for being offensive because it associated immigrants with diseases such as the coronavirus (Ruling on Vic Smith Bedding Ltd, 11 Mar. 2020). That stated, the ASA seems to have overlooked in the former cases the potential for significant harm to the wider society arising from exploiting people’s health-related fears or anxieties. Also, by examining the Vic Smith Bedding ad through the lens of offensiveness, the regulator seems to have discounted the potential harm to ethnic minority groups who have been assaulted or denied services, like transport, because of fear that they may pass on the virus. It may also be suggested that the ASA minimised the importance of the role of advertising in potentially exacerbating or reinforcing socially harmful attitudes. The media have also reported cases of xenophobia and racist attacks against students of Asian descent due to the virus originating in China.

Arguably, each of the rulings referred to above regarding medicinal claims, food supplements and alternative treatments could have the effect of exploiting consumers’ health-related fears to persuade (or in certain instances even mislead) them to buy the service or product. Yet, reference to the harm and offensiveness rules was made in none of them. Given the sensitivities of the pandemic and its ongoing impact, the potential for societal harm which can arise from appeals to insecurities that encourage ill-advised purchasing decisions should not be underestimated.

This piece was first published on The International Forum for Responsible Media and is reproduced here with permission and thanks.

Coronavirus and Harm in Broadcast Content

Photo by Fringer Cat

UK communications regulator Ofcom has so far made six sanctions decisions on broadcast content related to the coronavirus. What do these decisions illustrate about what Ofcom considers harmful? In this post, Professor Lorna Woods explains the different types of harm that the regulator appears to take into account when considering misinformation around the virus and COVID-19.

Ofcom guidance on coronavirus

On 23 March 2020, UK communications regulator Ofcom issued guidance on content standards during the pandemic.  Building on the generally applicable Broadcast Content Code, the Ofcom guidance highlighted the importance of sections 2 and 5. Section 2 deals with harm and offence; section 5 with impartiality and accuracy. It might be thought that content about COVID-19 that has little evidential support could be dealt with under section 5, as Ofcom has previously dealt with complaints about climate change and anti-vaccine views on this basis. Yet Ofcom’s guidance on coronavirus points back to its approach to ‘health and wealth claims’ under rule 2.1. This rule specifies that broadcasters should apply ‘generally accepted standards’ to ‘provide adequate protection’ from harmful and/or offensive material. Ofcom’s Coronavirus guidance highlighted three areas of concern:

  • health claims;
  • medical advice; and
  • the need for accuracy in programmes dealing with the virus or with public policy in relation to the virus.

The guidance does not give much detail on how harm might arise, so what can be discerned from Ofcom’s approach in practice?

Health and wealth claims

Ofcom defines health or wealth claims as statements that specific products, practices or activities will result in various benefits, especially when conventional treatments or advice are dismissed. Based on research it commissioned, the regulator has identified ‘a hierarchy of factors affecting the level of potential harm arising’, divided into three categories which it applies in cases involving health or wealth claims generally. Primary considerations are the vulnerability of the audience (e.g when they may be affected by serious illness) and the authority of the speaker. Secondary factors include the range of views presented, and the level of certainty ascribed to them. Tertiary factors are personal gain, genre, audience size and time of broadcast.

The coronavirus decisions

The sanctions decisions on content related to the coronavirus were:

A further programme (The Last Leg on Channel 4) is identified as Covid-related, but it was not pursued.  It concerned comments made by a guest on the programme about Boris Johnson’s health, rather than the public health impact seen in the other programmes. It is not possible to identify a full list of programmes which might have raised coronavirus issues but which were not taken forward because Ofcom gives no reasons for such decisions, just stating that the complaints have been dismissed (this is a possible failing in Ofcom’s systems).

These six programmes promoted 5G technology as a cause of coronavirus. Loveworld News also suggested hydroxychloroquine as a ‘cure’ for COVID-19. During the sermon there was a call for people to ‘pray against the false vaccine’. All suggested an ulterior motive for lock-down (the creation of a new world order) and that government advice was not to be trusted. In The Family Programme, which heavily promoted a document entitled ‘The COVID-19 genocide of 2020’, there were references to ‘our duty to break unjust laws’.  With the exception of This Morning (which was still criticised), Ofcom found breaches of the code. In its London Live decision, Ofcom emphasised that its ‘rules do not prohibit the broadcast of controversial or outlandish views’ but ‘broadcasters must ensure that such views are properly contextualised so as to comply with the Code’.

What is harm?

These decisions illustrate what might be considered (in the broadcast context) harmful and that the ways that harm might be envisaged to arise show different levels of connection to the content, which we can ascribe to three broad categories: direct, indirect and societal.

A direct connection between content and harm can be seen, for example, in the context of photosensitive epilepsy (not in issue here), where content might have a direct impact on the psychology or emotional state of the audience. To the extent that psychological or emotional well-being was considered, it was a factor in assessing the vulnerability of members of the audience.  The concern in this context is therefore probably not their psychological or emotional well-being (though this can be seen in the context of some decisions in relation to children under rule 1 of the Broadcast Content Code), but the steps that individuals may take in response to the content: an indirect harm.

Indirect harm could occur because of a belief in the effectiveness of hydroxychloroquine or thinking that 5G causes coronavirus, which could lead people to engage in risky behaviours contrary to official advice (e.g. not social-distancing or injecting harmful substances).  It could also include circumstances when individuals seek to damage 5G masts. In this, the link between content and harm is indirect: it requires action on the part of the viewer to give effect to the harm.  This approach is not new. It ties in with the concerns Ofcom identified with regard to health claims and medical advice generally, and can also be seen with the rules in the Content Code relating to copycat behaviours.

London Live argued that it had removed any content that could have been considered to be medical advice or contrary to government guidance. The discussion was general and not aimed at any particular person. Ofcom still found the content to be harmful, however. This seems to extend the understanding of harm: what is distinctive here is that the harm occurs at the societal level, relating to virus spread, rather than just individual risk.

This broad approach to the societal category of harm is noticeable as regards Ofcom’s third category of concern: the approach to public policy. Although Ofcom emphasised the importance of a robust debate around the Government’s handling of the pandemic and in particular the restrictions to our freedoms, Ofcom found harm arising from criticism of Government’s motives. Some criticism, for example that in The Family Programme where the presenter repeatedly commented that “Government and WHO policies are deliberately aimed at killing people” was extreme.  Nonetheless, it seems that there is a low threshold to trigger this concern which is especially noticeable in Ofcom’s This Morning decision. There, the comparatively mild challenge to the government’s policies was assessed by Ofcom as ambiguous but yet was determined to have undermined people’s trust in official advice. Although a failure to follow government advice could clearly lead to harm – whether to the individual not following the advice or to others as a result of the spread of COVID-19 – this seems to be a broad understanding of harmful content, especially given the role of the media in holding government to account.

Conclusion

It is important, however, to appraise these decisions in context. The programmes (with the partial exception of This Morning) promoted extreme views. In the London Live interview, for example, the interviewee stated that the world is controlled by a cult which wants to create “a beyond Orwellian global state in which a tiny few people dictate to everyone else”.  In the Loveworld Sermon, the preacher argued that there was a sinister plan for the survivors of Covid-19:

“And the younger ones that are strong enough for the formation of the new breed that is in the dream, the new breed, the new class of people that some scientists want to create for the world. While all others may soon have to perish.”

Similar views were repeatedly expressed in The Family Programme.  Additionally, we should remember that the rule relates not to the existence of harmful content, but to the broadcaster’s failure to protect the audience.  In these cases (This Morning being the exception), there were only minimal attempts to provide balance or context in the presentation of the content, and the viewpoints were in each case adopted by the presenter, giving that viewpoint weight and authority.

All of Ofcom’s decisions emphasised – in accordance with its approach to health and wealth claims – the vulnerability of the audience, here the concerns arising from the spread of a novel virus for which there was at the time no cure or even particularly effective treatment, especially in groups or areas particularly adversely affected.  So, while Ofcom recognises a broad scope to harm in this context, the decisions on the facts were balanced. It is far from certain that Ofcom would find other views that are critical of the Government to be harmful; this trend would certainly not seem to be applicable beyond the pandemic situation. Finally, the challenge brought by the Free Speech Union was unsuccessful; permission to bring a judicial review action was refused.

This post first appeared on the Media@LSE blog and is reproduced here with permission and thanks.

ICO’s Age Appropriate Design Code of Practice Comes Into Effect

Photo by Igor Starkov

Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 2 September 2020, the Information Commissioner’s Office (ICO), the United Kingdom’s independent body established to uphold information rights, formally issued its Age Appropriate Design Code of Practice which should be followed by online services to protect children’s privacy.

The Age Appropriate Design Code of Practice, the first of its kind, is a statutory code required under Section 123 of the Data Protection Act 2018 and aims to address the increasing “datafication” of children. The Code was first published on 12 August 2020 and, following completion of its parliamentary stages, it came into force on 2 September 2020. The Information Commissioner, Elizabeth Denham CBE, stated: “For all the benefits the digital economy can offer children, we are not currently creating a safe space for them to learn, explore and play. This statutory Code of Practice looks to change that, not by seeking to protect children from the digital world, but by protecting them within it.”

The Code’s primary focus is to set a benchmark for the appropriate protection of children’s personal data and provide default settings which ensure that children have the best possible access to online services whilst minimising data collection and use, by default. It sets out 15 standards on data collection and protection, and reflects a risk-based approach. Section 123(7) of the DPA 2018 defines “standards of age-appropriate design” as “such standards of age-appropriate design of such services as appear to the Commissioner to be desirable having regard to the best interests of children.” The 15 points of the Age Appropriate Design Code include a duty to conduct data protection impact assessments; transparency; policy and community standards; data sharing and minimisation; geolocation; parental controls; nudge techniques; and online tools, among others. For a brief overview of the standards laid out in the Code, see here. Due to the fact that different services will need to implement various technical solutions, the ICO acknowledges that these are not intended as technical standards, but as a bundle of technology-neutral design principles and practical privacy features.

These principles apply to any online products or services (including, for instance, educational websites, social media platforms, apps, online games, and connected toys with or without a screen) that process personal data and are likely to be used by children under 18 in the UK; therefore, they are not limited to services specifically aimed at children. The Code covers entities based in the UK as well as entities based outside of the UK if their services are provided to (or monitor) users based in the UK. Services provided on an indirect charging basis (for example, funded by advertising) also fall within its remit.

The ICO and the courts will take the Code into account in determining whether the GDPR and PECR requirements have been met for the purposes of enforcement action. Although the Code is now in effect, the industry has been given a 12-month implementation period to get up to speed and introduce suitable changes. After a year in force, the ICO will undertake a review of the Code and its effectiveness.

This article was first published in the 9th issue of IRIS Legal Observations of the European Audiovisual Observatory and is reproduced here with permission and thanks.

New Socio-Legal Research on Harmful Gender Stereotypes in Advertising

Photo by Joshua Earle

Dr. Alexandros Antoniou and Dr. Dimitris Akrivos, Lecturers in Media Law, University of Essex

A year after the introduction of the UK Advertising Standards Authority’s (ASA) new rule on gender stereotyping, a new study evaluates the regulator’s approach to depictions of harmful gender stereotypes in advertisements.

Dr Alexandros Antoniou and Dr Dimitris Akrivos from the School of Law are the authors of ‘Gender portrayals in advertising: stereotypes, inclusive marketing and regulation’. Their study, which was recently published in the Journal of Media Law, a leading journal in the field, offers an in-depth socio-legal analysis of the ASA’s modern practice which systematises for the first time the regulator’s rulings in the field of gender stereotyping.

For a long time, academic research has highlighted the impact gender stereotypical advertising images can have on people’s aspirations, professional performance and mental well-being. In response to long-standing concerns around the matter, the ASA introduced in June 2019 a new advertising rule and guidance into its harm and offensiveness framework. The new rule, which came into effect on 14 June 2019, states: ‘Advertisements must not include gender stereotypes that are likely to cause harm, or serious or widespread offence’. Academic discussion has not until now queried whether the actions taken by the ASA constitute a satisfactory response to the problem.

Dr. Antoniou and Dr. Akrivos had previously analysed on the International Forum for Responsible Media Blog the first ads to be banned under the new ASA gender-stereotyping rules, including the Volkswagen’s ad, which promoted the manufacturer’s eGolf model and the TV commercial promoting the Philadelphia cream cheese.

Their new article brings a new perspective in the ASA’s approach by paying close attention to the complex structure of gender stereotypes and the interaction between their multiple components. More specifically, Dr Antoniou and Dr Akrivos’ research looks at how the ASA has dealt with different forms of gender stereotyping, including sexualisation and objectification; body image; gender roles, behaviours and characteristics; and the ridiculing of those who do not conform to gender norms.

The authors argue that, although the ASA’s new rule and guidelines constitute a step in the right direction, they represent a missed opportunity to take bolder action against ads that objectify or inappropriately sexualise individuals. Dr Antoniou and Dr Akrivos stated: “the new ASA guiding principles need to be revisited in order to go beyond the traditional male/female binary”. They recommend that the new guidance on gender representation in marketing communications needs to reflect the multi-faceted nature and fluidity of modern gender identities. “We propose the introduction of a new concept requiring advertisers to give ‘due weight and consideration’ to the diversity of modern masculinities and femininities”.

The University of Essex’s press release on the study can be found here. The research also featured in an article on the global marketing magazine Campaign and a piece on the LGBTQ magazine GScene.

LONDON LIVE sanctioned by Ofcom for broadcasting ‘potentially harmful’ interview on COVID-19

Image by Pexels

Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 20 April 2020, the UK communications regulator Ofcom ruled that ESTV Ltd had breached its Broadcasting Code by airing an interview on the Coronavirus pandemic which risked causing “significant harm to viewers.”

ESTV Ltd, the licensee, is the owner of the local TV channel London Live, which serves the London area. On 8 April 2020, London Live broadcast an 80-minute interview with the former footballer and sports broadcaster David Icke, who was introduced by the presenter Brian Rose at the start of the programme as “a writer and public speaker known since the 1990s as a professional conspiracy theorist.” At the time of the broadcast, it was estimated that approximately 1.4 million people had been infected globally and the UK Government had introduced its lockdown policy to curb the spread of the virus.

Given the global Coronavirus crisis, the regulator expressed particular concern over the broadcast of Icke’s opinions which “cast doubt on the motives behind the official health advice aimed at reducing the spread of the virus.” The interviewee repeatedly suggested in the programme that the measures taken by the UK Government, other national governments and international health bodies such as the WHO were being implemented to further the malevolent ambitions of a “clandestine cult,” rather than to protect public health. While not expressly mentioning 5G technology, Icke referred, among other things, to an “electromagnetic, technologically generated soup of radiation toxicity” which, he claimed, had compromised the immune system of elderly people. Icke also expressed doubts over the use of vaccines (which are widely accepted by scientific communities as important mechanisms in controlling infectious disease outbreaks and part of a long-term solution to COVID-19), describing them as a “tidal wave of toxic shite” and any decision to make them mandatory as a form of “fascism.”

ESTV Ltd acknowledged that the programme included “controversial” and “unorthodox” material that challenged mainstream thinking, but considered it to be an exploration of Icke’s “extraordinary” views about the origins of the virus and governments’ responses within the limits of Article 10 of the European Convention on Human Rights. The regulator stated that the licensee was not, in principle, prohibited from broadcasting opinions which diverged from, or challenged official authorities on public health information and that Icke had a right to hold and express these views. However, Ofcom queried whether in the current unprecedented circumstances the programme had ensured that members of the public were “adequately protected” from the inclusion of potentially harmful material in compliance with Rule 2.1 of the Broadcasting Code.

The regulator stated that some viewers might well have expected that Icke’s opinions would not necessarily be scientifically or otherwise empirically supported, but they had also been likely to be “particularly vulnerable” during a global public health emergency. The extended nature of the interview, its sensitive subject matter, the severity of the situation and the degree of challenge (or the inclusion of opposing views) were factors that weighed significantly in the decision-making. Ofcom found that for some 80 minutes, ESTV Ltd had provided David Icke with a platform to set out highly controversial and unsubstantiated claims (which the licensee itself considered “may be absurd”) with minimal challenge within the programme. Moreover, the impact of the limited challenge that was present was minimised by the presenter’s final comments to the interviewee: after shaking hands, Brian Rose said that David Icke had “amazing knowledge and amazing perspectives about what’s going on here.” The regulator concluded that the licensee had failed to adequately protect viewers from potential harm and considered the breach of Rule 2.1 to be serious.

Ofcom directed ESTV Ltd to broadcast a summary of its ruling. Its Sanctions Panel will consider the matter further. Ofcom’s decision was delivered within just two weeks, as the regulator prioritises cases linked to Coronavirus whereby programmes may have helped spread misinformation or included material of a misleading nature about the illness and public policy in relation to it.

This article was first published in IRIS Legal Observations of the European Audiovisual Observatory and is reproduced here with permission and thanks.

TV Cameras To Be Allowed To Film in Crown Court in England and Wales

Photo by Julian Schiemann

Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 16 January 2020, the Ministry of Justice announced plans to allow for the first time in England and Wales recordings and broadcasts from the Crown Court with the aim of increasing public engagement with the justice system.

Filming is already permitted in the Supreme Court and has been since it was set up in 2009 (although this is carried out by the court itself) and the television broadcasting of Court of Appeal proceedings has been possible in specified circumstances since 2013 under the Court of Appeal (Recording and Broadcasting) Order 2013. The Crown Court (Recording and Broadcasting) Order 2020 will extend this to the Crown Court (which deals with serious criminal cases like murder and sexual offences) and allow cameras to broadcast the sentencing remarks of High Court and Senior Circuit judges when sitting in open court. No other court user will be filmed, however, and normal reporting restrictions will continue to apply to protect victims or witnesses involved in the case.

The policy aim of this legislative move is to ensure that courts “remain open and transparent and allow people to see justice being delivered to the most serious of offenders.” The legislation has been welcomed by broadcasters such as ITN, Sky and the BBC, and follows a not-for-broadcast pilot run between July 2016 and February 2017 to enable assessment of the practical and technical challenges of filming in the Crown Court.

The 2020 Order prescribes the conditions to be satisfied for the visual and sound recording and broadcast of sentencing remarks in the Crown Court. When these conditions are satisfied, section 41 of the Criminal Justice Act 1925 (which bans photography and filming in courts and their precincts) and section 9 of the Contempt of Court Act 1981 (which makes it illegal to record sound in court and broadcast any audio-recording of court proceedings except with the permission of the court) will not apply.

The legislation comes with safeguards. Whole trials will not be televised and filming will be restricted to the judge alone who will be seen on camera as he or she delivers their sentencing remarks. Moreover, recording or live broadcast can only be carried out by persons who have been given specific permission by the Lord Chancellor. Filming will also be appropriately edited before leaving the courtroom. Where filming is to be broadcast live, there will be a short delay before broadcast to avoid breaches of reporting restrictions or any other error. Whilst concerns may be expressed that particular sections of lengthy remarks may be broadcast out of context to create a false impression, the full sentencing remarks of any case broadcast will be hosted on a website to which the public will have access. Her Majesty’s Courts and Tribunals Service will retain copyright of the footage and will be able to access any footage taken by broadcasters.

This post first appeared on the legal database IRIS Merlin and is reproduced here with permission and thanks.

Money Market Funds Reforms in the US and the EU

Dr Mohammed Alshaleel, Lecturer in Law at the University of Essex, published an article titled ‘Money Market Funds Reforms in the US and the EU: The Quest for Financial Stability’.

The article considers the impact of money market funds (MMFs) reforms in the US and the EU on the money market fund industry and global financial stability. The 2008 financial crisis proved that MMFs are a source of considerable instability to the global financial system, and highlighted their susceptibility to runs. The shareholders’ incentive to redeem their shares before others do when there is a perception that the MMFs might suffer a loss makes MMFs vulnerable to runs. Given this reality, the article argues that the emphasis of the financial regulators on achieving the stability of the entire financial system after the 2008 financial crisis necessitates the strictness of the new reforms.

Divided into six parts, the article outlines the attributes and classification of MMFs, the definition of financial stability, and the run and systemic risk posed by MMFs during the financial crisis, before assessing the MMFs’ reforms in the US and the EU and the impacts of these reforms on the MMFs industry and global financial stability system. The major component of the US reform is the introduction of the floating net asset value (FNAV), where an MMF’s share price will fluctuate to reflect the daily market value of the fund assets. In the EU the new regulation provides investors with a high degree of optionality for investing by introducing Low Volatility Net Asset Value (LVNAV) MMFs.

The article concludes that despite that, the reforms are likely to jeopardise the viability of some categories of MMFs, they enhance global financial stability, and the complexity of the reforms has made MMFs more appropriate products to financial institutions’ investors than retail investors.

The article is published in Volume 31, Issue 2, pp. 303-335 of the European Business Law Review and can be accessed here.