Ofcom ref: 00733152 Julia Snape Email: [email protected]

16 July 2019

Leaving Neverland: Michael Jackson and Me: Channel 4, 6 & 7 March 2019

Thank you for your request for information regarding Ofcom’s consideration of complaints about the above programme. Your request was received on 24 June 2019. You have asked a number of questions, which we set out below. To the extent that you have asked for recorded information which is held by Ofcom, we have considered those requests in accordance with the Freedom of Information Act 2000 (‘the Act’).

Your questions:

“1) Full reasoning and explanation as to why Ofcom ruled against complaints relating to the showing of the 'Leaving Neverland' documentary aired by Channel 4 on 6/3/19 and 7/3/19.

2) An explanation as to why Ofcom failed to act on the large number of public complaints about this programme, which was clearly exposed as a 'witch hunt' against an individual who can no longer defend himself even before the programme was aired, full of lies and inaccuracies.

3) What investigation was carried out by Ofcom in relation to the complaints made against the programme?

4) Since these complaints of standard and factual inaccuracy were submitted to Ofcom, what procedures were carried out by Ofcom in order to ascertain whether further investigation was required?

5) Since at least several complaints were made with specific reference to Ofcom's own Code of Conduct (which the programmes clearly breached on numerous occasions), why did Ofcom adjudicate against these complaints and in favour of a programme which material and ethos was in breach of said Code of Conduct?

6) All correspondence, documents, notes, reports and transcripts of any telephone calls, and all e-mails relating to the enquiry into the 'Leaving Neverland' programmes”.

Our response

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In line with our published procedures1 for investigating breaches of content standards for television and radio, Ofcom does not, as a matter of course, correspond with individual complainants about the outcome of their complaints. However, we would like to be as helpful as possible, and on that basis have provided some further detail of our assessment.

Ofcom has duties under the Communications Act 2003 to set standards with which broadcasters must comply when broadcasting television programmes. These standards are set out in our published Broadcasting Code (“the Code”)2. We also have duties to put in place procedures for handling and resolving complaints, where members of the public are concerned that broadcasters may not have observed the requirements of the Code: those procedures are set out above. When Ofcom receives a complaint under the Code, we will request a copy of the programme from the broadcaster and commence an initial assessment. As part of this assessment, we may, depending on the facts, request further background information which may be relevant in determining whether a complaint (or complaints) raises potentially substantive issues under the Code which warrant investigation by Ofcom. As you have noted, we received a large number of complaints in relation to this particular programme. However, the number of complaints in any case is not determinative in whether Ofcom launches an investigation. Rather, we will consider whether a complaint (or complaints) raise potentially substantive issues under the Code which warrant investigation by Ofcom. In summary, the complaints raised concerns that the programme:

• broadcast allegations against Michael Jackson as fact which were never proven in court; and • omitted key facts and did not offer Jackson’s Estate, family or any other individuals beyond the accusing families the opportunity to contribute.

Our decision that the programme did not raise issues warranting investigation under the Code was made after we very carefully assessed the material and considered the concerns raised by the complaints. We considered that Rule 2.2 was the most potentially relevant in this case. Rule 2.2 requires that “Factual programmes or items or portrayals of factual matters must not materially mislead the audience”.

In addition, Section Seven of the Code relates to matters of fairness concerning programme contributors. Section Seven requires broadcasters to avoid unjust or unfair treatment of individuals or organisations in programmes. Ofcom will generally only consider a fairness complaint if it is made by the “person affected” or a person authorised to make the complaint on behalf of the “person affected”, for example Jackson’s Estate.

In relation to Rule 2.2, we considered whether any of the content in the programme was potentially materially misleading.

1 https://www.ofcom.org.uk/__data/assets/pdf_file/0020/55109/breaches-content-standards.pdf 2 https://www.ofcom.org.uk/__data/assets/pdf_file/0016/132073/Broadcast-Code-Full.pdf

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We considered the programme as a whole and the overall context in which various statements were made. In our view, taking into account that the allegations against Jackson were very clearly presented as the personal testimonies of the individuals concerned and that reference was made to the Jackson family denying the claims, we did not consider the programme raised issues warranting investigation under Rule 2.2.

On that basis, Ofcom’s view was that the complaints submitted did not raise issues warranting investigation under the Code. Ofcom’s decision in relation to this programme was published on 25 March 2019 in Issue 375 of Ofcom’s Broadcast and On Demand Bulletin (see page 106 /107)3.

Recorded information

You have also asked for certain recorded information which Ofcom holds. In particular, you have requested “all correspondence, documents, notes, reports and transcripts of any telephone calls, and all e-mails” relating to Ofcom’s consideration of the programme.

We cannot disclose this information on the basis of section 393(1) of the Communications Act 2003 and section 44 of the Act. Under section 393(1) of the Communications Act 2003, Ofcom is prohibited from disclosing information which relates to a business and which we have obtained in the course of undertaking our work, unless that business consents or one of the other statutory gateways is met. In this case, we do not have Channel 4’s consent to provide the information you have requested, nor are any of the other statutory gateways met. Given that section 393(1) applies in this case, so too does the exemption under section 44 of the Act. Section 44 provides an absolute exemption against disclosing information in circumstances where such disclosure is prohibited by another enactment (in this case, the Communications Act 2003). Yours sincerely

Information Requests

Freedom of Information questions

If you are unhappy with the response or level of service you have received in relation to your request from Ofcom, you may ask for an internal review. If you ask us for an internal review of our decision, it will be treated as a formal complaint and will be subject to an independent review within Ofcom. We will acknowledge the complaint and inform you of the date by which you might expect to be told the outcome. The following outcomes are possible: • the original decision is upheld; or • the original decision is reversed or modified.

Timing If you wish to exercise your right to an internal review you should contact us within two months of the date of this letter. There is no statutory deadline for undertaking internal reviews and it will depend upon the complexity of the case. However, we aim to conclude all such reviews within 20 working days, and up to 40 working days in exceptional cases. We will keep you informed of the progress of any such review. If you wish to request an internal review, you should contact:

3 https://www.ofcom.org.uk/__data/assets/pdf_file/0024/142098/Issue-375-Ofcoms-Broadcast-and-On- Demand-Bulletin.pdf

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Jacqui Gregory Corporation Secretary Ofcom Riverside House 2a Southwark Bridge Road London SE1 9HA

If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

Information Commissioner’s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF

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