Editorial Standards Findings Appeals to the Trust and other editorial issues considered by the Editorial Standards Committee March 2012 issued April 2012

Getting the best out of the BBC for licence fee payers

Editorial Standards Findings/Appeals to the Trust and other editorial issues considered Contentsby the Editorial Standards Committee

Remit of the Editorial Standards Committee 1

Summary of findings 3

Appeal Findings 5 Torchwood – Miracle Day, BBC One, 25 August 2011 5 Strictly Come Dancing, BBC One, 29 October 2011 11 BBC News at One and BBC News at Six, BBC One, 30 June 2010 16

Rejected Appeals 22 BBC coverage of Thai Red Shirt protests 22 The Bible‟s Buried Secrets, BBC Two, 15, 22 and 29 March 2011 37 BBC Online coverage of the 2011 UK Census 42 Money Box, BBC Radio 4, 30 April 2011 46 Wonders of the Universe, BBC Two, 6 March 2011 53 BBC News identification of crime suspects 58 The World at One, BBC Radio 4, 27 December 2010 61 BBC Online Hamas profiles 66 Today programme coverage of NHS neonatal and child care 77 Watchdog, BBC One, 14 April 2011 83

March 2012 issued April 2012

Remit of the Editorial Standards Committee

The Editorial Standards Committee (ESC) is responsible for assisting the Trust in securing editorial standards. It has a number of responsibilities, set out in its Terms of Reference at bbc.co.uk/bbctrust/about/meetings_and_minutes/bbc_trust_committees.html. The Committee comprises five Trustees: Alison Hastings (Chairman), Mehmuda Mian, David Liddiment, Richard Ayre and Lord Williams. It is advised and supported by the Trust Unit. In line with the ESC‟s responsibility for monitoring the effectiveness of handling editorial complaints by BBC management, the Committee considers appeals against the decisions and actions of the BBC‟s Editorial Complaints Unit (ECU) or of a BBC Director with responsibility for the BBC‟s output (if the editorial complaint falls outside the remit of the ECU). The Committee will consider appeals concerning complaints which allege that: • the complainant has suffered unfair treatment either in a transmitted programme or item, or in the process of making the programme or item • the complainant‟s privacy has been unjustifiably infringed, either in a transmitted programme or item, or in the process of making the programme or item • there has otherwise been a failure to observe required editorial standards The Committee will aim to reach a final decision on an appeal within 16 weeks of accepting the request. The findings for all appeals accepted by the Committee are reported in this bulletin, Editorial Complaints: Appeals to the Trust. As set out in its Terms of Reference, the Committee can decline to consider an appeal which in its opinion: • is vexatious or trivial; • does not raise a matter of substance; • relates to the content of a programme or item which has not yet been broadcast; • concerns issues of bias by omission in BBC news programmes unless the Chairman believes that it is plausible that the omission of an item could have led to a breach of the guidelines on impartiality; • has not been made within four weeks of the final correspondence with the ECU or BBC Director on the original complaint; and • relates to matters which are the subject of or likely to be the subject of, or relevant to, legal proceedings. The Committee will not generally reconsider any aspects of complaints that have already been adjudicated upon or considered by a Court. Any appeals that the Committee has declined to consider under the above criteria are reported in the bulletin.

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In line with its duty to consider topics of editorial concern to the Committee, whether or not such concern arises from a formal complaint, and to commission information requests from the Trust Unit or Executive to support such consideration, the Committee also from time to time requests the Executive to report to the Committee regarding breaches which have been accepted by the Executive and are therefore not subject to appeal to the Committee. The bulletin also may contain findings relating to such cases.

The bulletin also includes any remedial action/s directed by the Committee. It is published at bbc.co.uk/bbctrust or is available from: The Secretary, Editorial Standards Committee BBC Trust Unit 180 Great Portland Street London W1W 5QZ

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Summary of findings

Torchwood – Miracle Day, BBC One, 25 August 2011 The complainant said that a sex scene in episode seven of the BBC One drama series Torchwood was inappropriate for its target audience (which the complainant considered to be children under 16 years of age). The complainant said that, although the programme was shown after the watershed, it would attract 13-15 year olds who watch Doctor Who. The complainant also complained about the existence of a link between the Doctor Who and Torchwood websites.

The Committee concluded:

 that the sexual content was appropriately handled taking into account the lead-up to the scene and that the development of the scene gave no doubt as to the ultimate outcome.

 that the scene itself was not prurient or exploitative and was not sexually explicit.

 that most viewers are aware of the 9pm watershed and, given the nature of the drama and its scheduling, the scene did not exceed audience expectations.

 that, given the ultimate outcome of the scene was clear for some time, carers and parents were able to decide to switch off if they wished.

 that, while specific content advice regarding the sex scene would have been useful, the development of the scene and the established context of the programme meant that viewers would have had sufficient information to decide whether they wished to view the programme.

 that, taking into account the information provided online about any challenging content, and the scheduling of the series, the Committee did not consider that a link between the Doctor Who and Torchwood websites was of sufficient concern in encouraging children to watch this post-watershed drama.

The complaint was not upheld.

For the finding in full see pages 5 to 10.

Strictly Come Dancing, BBC One, 29 October 2011 Two people appealed to the BBC Trust against the BBC‟s response to complaints regarding a dance routine on the Strictly Come Dancing Halloween special. The appeals were consolidated and considered together across the range of issues raised. The complainants said that a dance routine performed by Robbie Savage to the Michael Jackson song Bad was sexually explicit (particularly in relation to its ending, when the contestant jumped onto the judges‟ desk in front of one of the male judges) and was inappropriate for the programme‟s audience.

The Committee concluded:

 that the routine in question was not sexually aggressive and would have been viewed more as pantomime behaviour, a caricature of Michael Jackson‟s dance

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routine, and would not have had a harmful effect on children.

 that, while some viewers may have found elements of the routine tasteless and vulgar, overall the routine did not exceed audience expectations.

 that the audience would be familiar with the nature of Robbie Savage‟s on-screen relationship with the male judge and would take that into consideration as part of the narrative of the show.

 that the dance routine met generally accepted standards, but that the final hip thrust on the judges‟ desk was at the margins of acceptability in a programme appealing to a wide family audience.

The complaints were not upheld. For the finding in full see pages 11 to 15.

BBC News at One and BBC News at Six, BBC One, 30 June 2010 The complainant said that his privacy had been breached in the filming and broadcast of a BBC News report covering a prison visit by the Justice Secretary. The complainant said that both the filming and the broadcast had been without his consent. BBC News had apologised to the complainant for filming him and said that it had taken steps to ensure that the footage would not re-broadcast. The complainant appealed to the Trust following the BBC‟s rejection of his request for compensation.

The Committee concluded:

 that the act of filming the complainant had been a minor infringement of privacy which was justified by the public interest in the BBC gathering this material and in the light of the steps taken by the BBC to alert those present to filming.

 That the complainant‟s legitimate expectation of privacy had been infringed in the broadcasting of his image without his consent.

 that a technique should have been used to disguise him before the reports were broadcast and therefore the infringement was not warranted.

 that, as the BBC had already apologised to the complainant on several occasions and appeared to have taken appropriate steps to ensure the material would not be shown in the future, all available remedies had already been provided and matters, therefore, had been resolved.

 that, as a licence fee-funded body it would not have been appropriate for the BBC to have offered financial compensation to the complainant.

The complaint was found to be resolved.

For the finding in full see pages 16 to 21.

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Appeal Findings Torchwood – Miracle Day, BBC One, 25 August 2011 1. The programme

Torchwood is a spin-off from the revival of Doctor Who in 2005. It is now in its fourth series having first been broadcast on BBC Three in 2006. This programme is from the fourth series, which ran from July to September 2011. The drama follows the exploits of a small team of alien-hunters, who make up the Cardiff branch of the Torchwood Institute. The central character is Captain Jack Harkness, an immortal con man from the distant future. Jack originally appeared in the 2005 series of Doctor Who. In this series the team are investigating the strange phenomenon of Miracle Day, when no one dies, but people still become sick and age.

2. The complaint

Stage 1

The complainant contacted BBC Audience Services to complain about a sex scene in episode 7 of Torchwood: Miracle Day.

BBC Audience Services explained that the relationship between the characters of Captain Jack and Angelo Colasanto was central to the storyline. In their view, the sexual content was not unusual in a post-watershed drama and previous episodes had contained similar scenes.

The complainant asked for a response to the complaint that, although the programme was scheduled after the 9pm watershed, it would attract 13-15 year olds who watch Doctor Who. She also asked if there was a link to Torchwood on the Doctor Who website.

BBC Audience Services felt that regular viewers would be aware that this well-established series contained adult themes, including sexual content. The scene occurred around 12 minutes into the episode during which time they were made aware of the developing relationship between the two men.

Stage 2

The Editorial Complaints Unit considered the complaint in relation to the BBC Editorial Guidelines on Harm and Offence. They concluded that the sexual content in the episode was justified given the context of the developing plot. Although the ECU acknowledged that older children may still be watching television after 9pm, they believed that it is broadly understood that after this time programming of a more adult nature may be aired and it is then up to parents to make the decision about children‟s viewing. In their view, Torchwood has established itself as an adult drama, containing adult relationships with content of a sexual nature. The ECU believed that the scene was not unduly abrupt as it occurred 12 minutes into the episode and so was not unacceptably close to the watershed. There was a warning of violent content before the programme, which did give some indication that the content might not be suitable for children. However, the ECU did not believe that the sexual content was so explicit as to require a similar warning. As to the scene itself, the ECU did not feel the physical relationship between the two men was “particularly graphic” – nudity was “partial and fleeting” and it was not clear “that any particular sexual acts were taking place”. The ECU added that although some viewers may have felt the content was more shocking as the partners were of the same sex, the BBC Editorial Guidelines or Ofcom‟s Broadcasting Code does not make this distinction. For

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these reasons, the ECU did not believe the sex scenes exceeded “generally accepted standards”.

The ECU did not find any link from the Doctor Who website to Torchwood.

Stage 3 – Appeal to the Editorial Standards Committee (ESC)

The complainant contacted the BBC Trust to appeal the Stage 2 decision.

The complainant argued that:

 This episode of Torchwood was “inappropriate for the target audience” (children under 16 years of age). “What does audience research say about audience profile of Torchwood?”

 “The reality of TV viewing in a family is parents do not always watch alongside their children.”

 A link to Torchwood on the Doctor Who website did exist in September 2011.

 The programme makers targeted an audience and failed to deliver material appropriate to that audience, “...this constitutes a breach of trust”.

3. Applicable Editorial Guidelines

The following sections of the 2010 Editorial Guidelines are applicable:

Section 5 – Harm and Offence

Introduction

We must be sensitive to, and keep in touch with, generally accepted standards as well as our audiences‟ expectations of our content, particularly in relation to the protection of children. Audience expectations of our content usually vary according to the service on which it appears.

When our content includes challenging material that risks offending some of our audience we must always be able to demonstrate a clear editorial purpose, taking account of generally accepted standards, and ensure it is clearly signposted.

Generally Accepted Standards

Applying „generally accepted standards‟ is a matter of judgement, taking account of the content, the context in which it appears and editorial justification.

Context

Context includes, but is not confined to:

- the surrounding editorial material

- the service on which the content is available

- the time at which it is available

- the likely size and composition of the potential audience and likely expectation of the audience

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- the harm or offence likely to be caused by the inclusion of the particular content in output generally, or in output of a particular nature or description

- the extent to which the nature of the content can be brought to the attention of the potential audience, for example, by signposting and content information

- the effect of the content on audiences who may come across it unawares.

Practices

Audience Expectations

5.4.1 We should judge the suitability of content for our audiences, including children, in relation to the expectations of the likely audience, taking account of the time and day on which it is available, the nature of the service and the nature of the content.

The Watershed and Scheduling for TV, Radio and Online

5.4.6 Television scheduling decisions need to balance the protection of young people and particularly children with the rights of all viewers, including those without children, to receive a full range of subject matter throughout the day.

The 9pm television watershed is used by broadcasters to distinguish between programmes intended mainly for a general audience and those programmes intended for an adult audience. However, parents and carers share in the responsibility for assessing whether programme content is suitable for their children, based on their expectations of that content.

The 9pm watershed signals the beginning of the transition to more adult material, but the change should not be abrupt. Programme makers and schedulers should also take into account the nature of the channel and viewer expectations. The strongest material should appear later in the schedule. If sudden changes of tone are unavoidable they should be clearly signposted, for example by giving clear information about scenes of a sexual nature, violence or the use of strong language.

5.4.15 ... the nature of the content we make available should be based on the audience expectations of the specific online service and informed by our knowledge of when it is likely to appeal to a significant proportion of children.

Unexpected and challenging content, especially content which might be unsuitable for children, should be labelled to avoid causing unjustifiable offence.

Sex

5.4.34 In all BBC output the portrayal of sex, or the exploration of sexual issues, should be editorially justified and treated with appropriate sensitivity.

In post-watershed content, we must be able to justify the frank and realistic portrayal of sex and the exploration of themes and issues which some people might find offensive.

4. The Committee’s decision March 2012 issued April 2012 7

The Committee considered the complaint against the relevant editorial standards, as set out in the BBC‟s Editorial Guidelines. The Guidelines are a statement of the BBC‟s values and standards.

In reaching its decision the Committee took full account of all the available evidence, including (but not limited to) the Editorial Adviser‟s report and subsequent submissions from the complainant and the BBC.

The Committee noted that this appeal raised issues which required consideration of the guidelines relating to harm and offence. It was noted that when considering whether “generally accepted standards” had been met, the context of the scene and the programme was an important factor. The Committee also noted that it was required to take into consideration the likely audience expectations of this programme judging the suitability of the content for the audience, including children, and taking into account the time and day on which the programme was broadcast and the nature of the service and the content.

The Committee noted that any challenging content online, which might be unsuitable for children, should be labelled to avoid causing unjustifiable offence.

The Committee noted that the programme was broadcast after the 9pm watershed and, therefore, it should be considered whether the scene was editorially justified and treated with appropriate sensitivity.

Complaint Point 1 – The content was too sexually explicit in a drama scheduled immediately after the 9pm watershed bearing in mind the allegation that the series was directly targeted at children due to Torchwood‟s connection with Doctor Who.

The Committee noted the storyline of the episode and the context of the relationship between the two men. It commenced with Captain Jack arriving at Ellis Island in 1927 and meeting an Italian immigrant, Angelo Colasanto, who tried to impersonate him to obtain entry into the United States. On realising this, Captain Jack wrestled Angelo to the floor to retrieve his papers. There was a look between the two men which indicated some attraction. The two men joined forces and rented a room together in a boarding house. As they entered the room a look passed between them as they realised there was only one bed. They looked out of the window and saw a woman standing on a fire escape and had a conversation about a fantasy relationship with her. This soon turned into Captain Jack seducing Angelo and twelve minutes into the episode they ended up naked on the bed kissing. They started to talk about past relationships whilst in bed together. The scene on the bed, including the conversation, lasted just under five minutes.

The Committee noted that the relationship between Captain Jack and Angelo was integral to the storyline. Angelo was caught between his sexual desire and his Catholic faith. It also illustrated the difference between the two men‟s attitude to this sexual relationship as Captain Jack was not bothered about the illegality of the act in the 1920s, which made Angelo question Captain Jack‟s feelings towards him. Angelo‟s anguish over his relationship with Jack led him to try to kill him. This proved impossible due to Jack‟s immortality and Jack was taken to a neighbourhood cellar where he was repeatedly tortured as people tried to kill him.

The Committee noted the continuation of this storyline in Episode 8 when Captain Jack met Angelo in the present day and he was dying on a life support machine. Angelo‟s granddaughter explained that three mobster families tapped Jack‟s blood back in the 1920s to gain immortality. In Episode 10, the final episode, it was revealed that the families attached Jack‟s blood to a force field to give them immortality but aliens

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misunderstood and recently gave immortality to the Earth in the spirit of benevolence. Finally, Miracle Day was destroyed and order on Earth was restored.

The Committee noted that there had been similar sex scenes in earlier series. From the start of the first series there had been broad sexual themes and sex scenes. The lead character Captain Jack had been bisexual throughout and numerous scenes have been included to illustrate this. There was a history in dialogue and through visuals of him having physical relationships with men and women.

The Committee noted that this episode attracted an audience of 4.5 million. The majority of viewers were over 25 years of age at 3.83 million viewers.

The Committee also noted that in the 9pm slot on 25 August 2011, it is estimated that 1.34 million children were available to watch television. Of this total audience, 23.5% (315,000) were watching this episode of Torchwood. When compared with Doctor Who shown at approximately 7pm, the estimated number of children available to view was 2.85 million and, of this, 47.4% (1.35 million) were watching Doctor Who.

The Committee noted that the sex scene between Jack and Angelo received 1,294 complaints with another 148 complaints about the violence (most of which mentioned the sexual content). This was the most complained about issue over the whole series with a further 268 complaints about the inappropriateness of the homosexual content and characters. 161 complaints were received from viewers who were concerned about reports that a gay sex scene, included in the American version, had been cut from Episode 3. The whole of Series 4 received 2,351 complaints. The series received a high level of appreciation at 6.5% of all correspondence (the average for positive feedback across BBC One is 2.3%).

The Committee noted that this episode carried a pre-transmission warning which stated:

“Violent scenes now on BBC1. They‟ve got Gwen‟s family, but all they really want is Jack.”

The Committee noted that the production team was asked if any consideration was given to providing an announcement warning viewers about the sexual content. They explained that Series 4 had various guidance for upsetting scenes, violence, strong language and general „adult themes‟. Episode 3 carried guidance for sexual content as it contained a sexual encounter between two male characters intercut with a bed scene between a man and a woman. As the sexual element had not featured before in Series 4, the decision was taken to include the announcement which stated “some scenes of a sexual nature”. The production team felt that by Episode 7 of Series 4 “it was reasonable to expect viewers to realise that this was a post-watershed drama with significant adult themes”.

The Committee considered whether the transition to adult material, namely the sex scene near the start of the episode, was too abrupt after the 9pm watershed and, therefore, exceeded generally accepted standards. It was felt that the sexual content was appropriately handled taking into account the lead- up to the scene. Captain Jack‟s sexual proclivities were well known by the audience and the development of the scene gave no doubt as to the ultimate outcome. The scene, itself, was not prurient or exploitative and was not sexually explicit. The Committee believed that most viewers are aware of the purpose of the 9pm watershed and, given the nature of the drama and its scheduling, it did not exceed audience expectations. In particular, the Committee noted that at the ultimate outcome the scene was clear for some time and carers and parents were able to decide to switch off if they wished.

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The Committee did not consider that the programme was in breach of the guidelines by not providing a pre-transmission announcement about the sexual content. However, it was felt that providing content information is a useful tool in allowing viewers to judge whether they wish to view a programme. In this case, the Committee concluded that, while specific content advice regarding the sex scene would have been useful, the development of the scene and the established context of the programme meant that viewers would have had sufficient information to make a decision.

Complaint Point 2 – The direct link online between the Doctor Who website and Torchwood, which does not provide parental guidance, would encourage younger viewers to watch Torchwood.

The Committee noted that the initial web link provided had been an archived page for Doctor Who, which gave a hyperlink to Torchwood. Viewers could also access the Torchwood site via the character of Captain Jack Harkness on the Doctor Who website. However, the Committee also noted that parental guidance was provided for Torchwood episodes available on the BBC iPlayer and guidance information was also provided on the Electronic Programme Guide (EPG).

Taking into account the information provided about any challenging content and the scheduling of the series, the Committee did not consider that any link between the two websites was of sufficient concern in encouraging children to watch this post-watershed drama.

Finding: Not upheld

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Strictly Come Dancing, BBC One, 29 October 2011 1. The programme

Strictly Come Dancing is a popular Saturday night show now in its ninth series. This particular programme started at 7pm. Celebrities are paired up with professional dancers to compete in a ballroom competition. The couples are marked by four judges and, then, the viewing public vote to keep in their favourite couples. The former Welsh professional footballer, Robbie Savage, was paired in this series with professional dancer Ola Jordan, who has appeared since series four. In this programme he was the eighth celebrity to dance (out of the eleven who remained in the competition) and his routine appeared roughly two-thirds of the way through the programme at 8.08pm.

2. The complaint

Stage 1

Members of the public contacted BBC Audience Services to complain about Robbie Savage‟s dance routine, on the basis that it was too explicit.

BBC Audience Services explained that Robbie Savage was emulating Michael Jackson‟s famous dance moves from his video Bad as part of the Halloween Special.

The Executive Producer of Strictly Come Dancing was contacted for comments. The Executive Producer made the following points:

 Careful thought goes into the whole production, from routines to costumes, to make sure it is suitable for a family audience.

 Robbie Savage‟s dance routine should be seen in the context of the Halloween Special where some routines and costumes are deliberately exaggerated.

 The hip thrust is one of Michael Jackson‟s iconic moves and the routine was danced to his song „Bad‟. Viewers would, therefore, be in no doubt that Robbie was mimicking one of Jackson‟s signature moves.

 Robbie‟s jump onto the judges‟ desk at the end of the dance took everyone by surprise and was played largely for laughs, which seemed to be supported by the judges, audience and presenters.

The complainants were not satisfied with the reply from BBC Audience Services and the Executive Producer. The complaint was referred to the next stage.

Stage 2

The Editorial Complaints Unit (ECU) investigated the complaint in relation to the BBC‟s Editorial Guidelines concerning television scheduling and the watershed. They concluded that, on balance, the dance routine did not breach the guidelines. The reasons given were:

 Viewers would be familiar with the mimicking of “some of Michael Jackson‟s trademark dance moves” to his song „Bad‟. Even younger viewers would not be surprised “given its ubiquity in the videos and public performances of Michael Jackson”.

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 The original video had a “slightly darker feel” and Robbie‟s dance routine was plainly a pastiche and “had a much more light-hearted feel”.

 Given the context of the pastiche on Michael Jackson‟s routine, the hip thrust was “a humorous punctuation rather than something that has sexually explicit overtones”. This exaggeration made them less, rather than more, erotic.

 When the Executive Producer said the routine “took everyone by surprise”, she was referring to the audience and judges. The routine was planned and rehearsed and the production team was completely in control of the programme.

Stage 3 – Appeal to the Editorial Standards Committee (ESC)

Two complainants contacted the BBC Trust to appeal the Stage 2 decision.

The complainants argued that:

 It was immaterial what Michael Jackson may have done in past routines. Context can only go so far in excusing offensive material.

 If Michael Jackson had performed a striptease routine, would that be considered appropriate?

 The handling of genitals was inappropriate in a programme shown at 7pm during family viewing time.

 The leaping on to the judges‟ table went beyond Michael Jackson‟s dance moves. Mr Revel Horwood was singled out for the final hip thrust. The move was “erotic and sexually explicit”.

 Exaggeration may make the hip thrusts less erotic but the aggression, particularly the final move on the judges‟ table, takes it into other areas of sex acts – “that of aggressive, non-consensual acts”.

 In allowing this behaviour, the BBC is not interested in protecting the moral development of people under eighteen. It is showing children it is acceptable to act in a way that is sexually aggressive.

 It “…was in bad taste”

 When is the BBC going to say “stop” as “this dance is the thin end of the wedge”?

 The BBC should apologise.

At its meeting in February 2012 the Editorial Standards Committee agreed to consolidate the appeals so that they could be considered together across the full range of issues identified.

3. Applicable Editorial Guidelines

The following sections of the 2010 Editorial Guidelines are applicable:

Section 5 – Harm and Offence

Introduction

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We must be sensitive to, and keep in touch with, generally accepted standards as well as our audiences‟ expectations of our content, particularly in relation to the protection of children. Audience expectations of our content usually vary according to the service on which it appears.

When our content includes challenging material that risks offending some of our audience we must always be able to demonstrate a clear editorial purpose, taking account of generally accepted standards, and ensure it is clearly signposted.

Generally Accepted Standards

Applying „generally accepted standards‟ is a matter of judgement, taking account of the content, the context in which it appears and editorial justification.

Context

Context includes, but is not confined to:

- the surrounding editorial material

- the service on which the content is available

- the time at which it is available

- the likely size and composition of the potential audience and likely expectation of the audience

- the harm or offence likely to be caused by the inclusion of the particular content in output generally, or in output of a particular nature or description

- the extent to which the nature of the content can be brought to the attention of the potential audience, for example, by signposting and content information

- the effect of the content on audiences who may come across it unawares.

Practices

Audience Expectations

5.4.1 We should judge the suitability of content for our audiences, including children, in relation to the expectations of the likely audience, taking account of the time and day on which it is available, the nature of the service and the nature of the content.

The Watershed and Scheduling for TV, Radio and Online

5.4.7 Programmes broadcast between 5.30am and 9pm must be suitable for a general audience including children. The earlier in the evening a programme is placed, the more suitable it should be for children to watch without an older person. Programmes in later pre-watershed slots may not be suitable for the youngest children or for children to watch without an older person.

4. The Committee’s decision

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The Committee considered the complaint against the relevant editorial standards, as set out in the BBC‟s Editorial Guidelines. The Guidelines are a statement of the BBC‟s values and standards.

In reaching its decision the Committee took full account of all the available evidence, including (but not limited to) the Editorial Adviser‟s report and subsequent submissions from one of the complainants and the BBC.

The Committee noted that this appeal raised issues which required consideration of the guidelines relating to harm and offence. It was noted that when considering whether „generally accepted standards‟ had been met, the context of the item and the programme was an important factor. The Committee also noted that it was required to take into consideration the likely audience expectations of this programme judging the suitability of the content for the audience, including children, and taking into account the time and day on which the programme was broadcast and the nature of the service and the content.

The Committee noted that the programme was broadcast before the 9pm watershed, which raised the issue of whether the dance routine was suitable for a general audience including children. This included taking into account that the earlier in the evening a programme is placed, the more suitable it should be for children to watch without an older person.

The Committee noted that Robbie Savage and Ola Jordan performed the pasa doble to Michael Jackson‟s song Bad. The dance started with Robbie Savage copying Michael Jackson‟s outfit and pose. During the dance Robbie Savage performed hip thrusts with his hand over his groin and right at the end he jumped on to the judges‟ desk, kneeling, and performed the same movement in front of Craig Revel Horwood. The judges all commented on this aspect of the dance.

The Committee also noted that the video of Robbie Savage in training, which was broadcast just before the routine, showed him performing a hip thrust move once with his hand over his groin. There was also a brief replay of the dance from the previous week which showed Robbie Savage and Ola Jordan performing to Love Man with some “raunchy” moves (including one hip thrust with no hand over groin).

The Committee noted that the Halloween Specials have always been promoted as containing spectacular special effects with costumes, props and routines.

The Committee noted that this programme attracted an audience of 11.3 million and that the majority of viewers were over 45 years of age. For this Halloween show, 7.57 million viewers were over 45 years of age and 790,000 viewers were children (aged 16 and under). At this time of the evening, approximately 2.46 million children would be viewing television and, of this total audience, around 32% were watching Strictly Come Dancing.

The Committee also noted that this dance routine received 498 complaints. The series as a whole received 3,912 complaints.

The Committee first considered whether the dance routine would be a bad influence on children. It was noted that the hip thrust with a hand over the groin was a very familiar motif in Michael Jackson‟s routine that many children would be aware of. The Committee noted that when this dance move first appeared in videos it was viewed as shocking, but over the years this response has lessened and this move has appeared many times in pre- watershed entertainment programmes. On this occasion, it was felt that this routine was not sexually aggressive and would be viewed more as pantomime behaviour, a caricature

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of Michael Jackson‟s dance routine. On this basis, the Committee did not believe that this gesture would have a harmful effect on children.

Turning to the issue of offence, the Committee understood that some viewers may have found the hip thrusts in Robbie Savage‟s dance routine tasteless and vulgar, particularly the final jump onto the judges‟ desk. Overall, however, the Committee felt that the dance routine did not exceed audience expectations. The Committee took into account that regular viewers would be aware of the relationship between the judges and the contestants over the course of the series. The Committee noted that Robbie Savage‟s persona had been developed to portray him as preoccupied with his appearance and body image and it considered that the pastiche of the Michael Jackson routine was an extension of this caricature. The dance itself was not overly sexualised, but the final leap onto the judges‟ desk could be misconstrued if viewers were not aware of the back story between the judge and the contestant. The Committee considered that the audience would be familiar with the nature of Robbie Savage‟s on- screen relationship with the male judge and would take that into consideration as part of the narrative of the show. The Committee concluded that the dance routine met “generally accepted standards”, but that the final hip thrust on the judges‟ desk was at the margins of acceptability in a programme appealing to a wide family audience.

Finding: Not upheld.

March 2012 issued April 2012 15

BBC News at One and BBC News at Six, BBC One, 30 June 2010

1. Background

BBC News at One, Six and Ten broadcast on 30 June 2010 film of a visit by the Justice Secretary, Kenneth Clarke, to HMP Armley (also known as Leeds Prison). The context was a major announcement by Mr Clarke on proposed prison reform, shifting the emphasis from incarceration to rehabilitation.

In preparation for the announcement, the Ministry of Justice provided filming access to the BBC at the prison the day before. Mr Clarke was shown in the broadcast film talking to inmates.

The complainant, who was a prisoner there at the time, said that his privacy was breached when he was filmed and when an identifiable image of him was subsequently broadcast. Both the filming and broadcast had been without his consent.

The BBC accepted that the complainant‟s legitimate expectation of privacy had been breached in respect both of the gathering of the material and its broadcast. It apologised and said the breaches had been inadvertent. In addition, the BBC said the material concerned had been marked to prevent its re-use.

The complainant said that in view of the stress caused to himself and his family an apology was not sufficient.

2. Complaint

Stage 1

The complainant wrote to the producer of the report on 13 December 2010 (there had been some previous correspondence with BBC Look North which the complainant mistakenly thought had made the film). He said that he and other prisoners had been on their association time when Mr Clarke visited B wing at Leeds Prison. This had been the only time prisoners were allowed out of their cells and it was at this point that he had been filmed without having given his permission.

The producer replied to the complainant that BBC News tried hard to film only those who had given their permission and if someone had been filmed inadvertently they would not use the shot or disguise them. She said she remembered the prison landing had been busy because Mr Clarke‟s visit had coincided with prisoners‟ association time and she hoped the complainant had not been filmed. However, if this had been the case, she offered her sincere apologies. After further exchanges, the producer identified the complainant on the footage and said she had taken action to ensure it was not re-used.

Stage 2

The complainant wrote to the Director, BBC News, on 5 October 2011 repeating the above, and saying that the transmitted footage had caused stress not only to himself but also to his son because his fellow pupils had seen his father in jail. The complainant said he thought that, as a result, he should be compensated.

The Director, BBC News, responded that she believed BBC News was under no obligation to take any further action.

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She gave the following reasons for her decision:

 Mr Clarke had appeared on the prison wing at an unexpected time, during the prisoners‟ association time and the camera crew had had to start filming otherwise they would have lost the opportunity to get footage of him. It had been at this point that the complainant had been caught briefly on camera

 In the few seconds the complainant was shown, he was seen looking at the camera and must have known that Mr Clarke was being filmed. However, the complainant had taken no steps to ensure his picture was not shown

 The footage in which the complainant was glimpsed was so fleeting that the complainant was not readily identifiable

 A stop had been put on the archive material being reused

 The producer had already apologised for the inadvertent use of the shot, and the Director, BBC News, added her apologies for the upset the complainant had experienced.

Appeal to the BBC Trust

The complainant appealed to the Editorial Standards Committee of the BBC Trust on 11 November 2011. He said that if it had been true that the footage in which he had been shown was so fleeting, then his family would not have been able to identify him, and this had not been the case. The complainant added that an attempt had been made at Stage 2 to put the blame on to him, when the BBC should have accepted that it was in the wrong and have compensated him accordingly.

The Head of Editorial Standards, BBC Trust, responded on 13 December 2011 saying that she did not consider it was proportionate to take things further and for the ESC to consider the appeal. She said:

 The BBC had accepted there was a breach of the complainant‟s personal privacy – the filming of his face had been inadvertent and the BBC would always attempt only to show people who had given consent

 She accepted that the complainant had had no option but to be present at the time and the onus had not been on him to tell the programme makers to avoid using the footage of him. However, she also noted it was a fleeting shot, that the BBC had taken steps to ensure it would not be reshown, and that the complainant had been given an apology

 She added her apologies and said that, as a licence fee payer funded organisation, the BBC did not provide compensation of the kind the complainant was seeking.

The complainant challenged this decision, saying that he felt he was being bullied by the BBC, and that an apology and assurance about future use of the film were not sufficient in view of the damage done. He questioned why financial compensation could not be made.

The ESC, at its January 2012 meeting, accepted the appeal.

3. Applicable Editorial Guidelines

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The following sections of the BBC‟s Editorial Guidelines are applicable.

Section 7 – Privacy

Introduction

The BBC respects privacy and does not infringe it without good reason…

Meeting … ethical, regulatory and legal obligations in our output requires consideration of the balance between privacy and our right to broadcast information in the public interest. We must be able to demonstrate why an infringement of privacy is justified.

An infringement is considered in two stages, requiring justifications for both the gathering and the broadcasting…

Legitimate Expectations of Privacy

An individual‟s legitimate expectation of privacy is qualified by location and the nature of the information and behaviour, and the extent to which the information is already in the public domain…

The Public Interest

…When considering what is in the public interest we also need to take account of information already in the public domain…

When using the public interest to justify an intrusion, consideration should be given to proportionality; the greater the intrusion, the greater the public interest required to justify it.

Privacy and Consent

…In potentially sensitive places, for example ambulances, hospitals, schools and prisons, we should normally obtain two separate consents, one for gathering the material and the other for broadcasting it, unless it is justified not to obtain such consents.

4. The Committee’s decision

The Committee considered the complaint against the relevant editorial standards, as set out in the BBC‟s Editorial Guidelines. The Guidelines are a statement of the BBC‟s values and standards.

In reaching its decision the Committee took full account of the available evidence, including (but not limited to) the Editorial Adviser‟s report and the subsequent submissions from the complainant and the BBC Executive.

The Committee noted that the guidelines on privacy in potentially sensitive places, for example prisons, required the BBC normally to obtain two separate consents, one for gathering the material and the other for broadcasting it.

It noted that HMP Armley was a potentially sensitive place as defined by guidelines and that it included a mix of inmates, including those who were on remand awaiting trial, prisoners who had been convicted and given a custodial sentence and individuals who may be particularly vulnerable.

The Committee first considered the gathering of the material and whether the complainant‟s privacy had been breached in the process.

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The Committee noted statements from the BBC and the complainant about the circumstances of the filming and how the complainant had come to be filmed in the background.

The location producer had described how Mr Clarke‟s visit to the prison had not gone according to schedule and he had appeared during association time when the landing where interviews were due to be filmed was full of prisoners. If filming had not gone ahead, then the opportunity to get footage of Mr Clarke would have been lost. The complainant had been caught briefly on camera in the background.

The Committee noted that the complainant had stated that association time was the only time prisoners were allowed out of their cells and that prisoners could not choose when to have their association time or when to call their families, and that he had been on the phone when the filming had taken place.

The Committee noted that the film crew had agreed on behalf of the BBC to a contract with the Ministry of Justice (MoJ) before permission had been given to enter the prison. The contract had underlined the importance of protecting the privacy of inmates.

The Committee also noted the MoJ‟s statement that prison staff had obtained written consent in advance from selected prisoners who had agreed to be filmed; which prisoners these were was indicated to the media.

The Committee considered it was clear that the complainant was aware filming was taking place. It took place on an open prison landing where the complainant was standing watching Mr Clarke. The Committee agreed that the act of filming in itself had been a minor infringement of privacy which was justified by the public interest in the BBC gathering this material and in the light of the steps taken by the BBC to alert those present to filming. The Committee then turned to the question of the broadcast of the pictures.

The Committee noted that all three versions of the film, as broadcast, were broadly similar. The complainant‟s face was shown for between one and two seconds in all three and he was pictured in the background, standing with his back to a phone booth, watching the filming and other inmates talking to Mr Clarke.

The Committee also noted a statement from the producer that the editing of the film had been done initially overnight by the Breakfast programme team in order to preview Mr Clarke‟s speech the following day. The shot in question had not been used in that piece but was used in the re-cuts for the One, Six and Ten o‟clock bulletins. The producer, the Committee noted, had not been involved in the editing of any of the packages.

The Committee was aware of newspaper and internet publicity about the complainant which would have been in the public domain locally at the time of his trial and conviction in the crown court, shortly before the filming and broadcast of the complainant in the BBC News bulletins. A local newspaper article dated a month before the BBC filmed at Leeds prison, for example, identified the complainant by name, address and police photograph.

However, the Committee also noted the agreement with the MoJ to protect the privacy of inmates and the MoJ‟s statement that it would be the responsibility of individual media organisations to ensure that individuals who had not given their permission were not identifiable in the broadcast film. The Committee noted that the BBC had said the filming was inadvertent, and also the fact that the complainant was convicted and his name and image were already in the public domain. The Committee considered that this mitigated the infringement of privacy; however the Committee agreed with the BBC that the complainant‟s legitimate expectation of privacy had been infringed by the broadcasting of

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his image without his consent. It considered that a technique should have been used to disguise him before the reports were broadcast and therefore the infringement was not warranted.

The Committee noted that the BBC had apologised on several occasions for what had happened and had appeared to have taken the appropriate steps to ensure the material would not be shown in the future. It noted that the programme producer had apologised at Stage 1 of the complaint and assured the complainant that the shot would not be used; the Director, BBC News, had also apologised at Stage 2; and the Head of Editorial Standards, BBC Trust, had added her apologies at the appeal stage.

The Committee considered what, additionally, the BBC could have done in the circumstances, and came to the view that all available remedies had already been provided and matters, therefore, had been resolved. It confirmed that, as a licence fee- funded body, it would not have been appropriate for the BBC to have offered financial compensation to the complainant.

Finding: Resolved

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Rejected Appeals

Appeals rejected by the ESC as being out of remit or because the complaints had not raised a matter of substance and there was no reasonable prospect of success.

BBC coverage of Thai Red Shirt protests The complainant appealed to the Editorial Standards Committee following the decision of the Head of Editorial Standards that the complainant‟s appeal did not qualify to proceed for consideration by the Committee. The complaint The complainant contacted the BBC to express the collective disapproval, on behalf of a group of people, of the BBC‟s coverage of the red shirt protests in Bangkok, Thailand – March to May 2010. The complainant was initially in contact with different divisions of the BBC at the same time. When the complainant appealed to the Trust, the Head of Editorial Standards clarified that Stage 1 was defined as involving the complainant‟s preliminary exchanges with BBC Audience Services and Stage 2 as his correspondence with the Deputy Head of BBC Newsgathering. Stage 1 As the amount of correspondence at Stage 1 was extensive every exchange has not been summarised, only the main issues raised in the complaint, which were later addressed in the complainant‟s appeal letter to the BBC Trust on 4 March 2011.

The complainant initially wrote to the BBC Trust on 28 May 2010 saying that he believed that the BBC had been guilty of helping to “stoke the fires of rebellion” in Thailand “through bias, ignorance and sensationalism” .

He wrote again the following day enclosing a 35 page document, which included observations from a cross section of those who had responded to a letter he had written on 17 May 2010 to the editor of The Nation newspaper in Bangkok about the BBC coverage of the red shirt rallies.

In this letter the complainant requested:

1. An initial response within the framework of the BBC complaints procedure

2. A detailed investigation into accusations regarding the failures of BBC reporters in Thailand

3. A public forum in Bangkok for Thais and expats to express their views to the BBC

4. A piece of quality investigative journalism (Panorama-style) into the past and present of Thaksin Shinawatra

The complainant then made several attempts to contact the BBC without response and wrote again to the BBC Trust on 1 July 2010, saying that he had not had a reply from BBC Audience Services to his initial letter. The Trust Unit passed the details to BBC Audience Services.

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The Complaints Co-ordinator, BBC Audience Services, replied to the letter of 29 May 2010 and said that it contained insufficient information to allow a response in any detail. He explained that the complainant needed to provide specific programme and transmission times and dates for all the news reports in question, detailing on what specific channel/outlet they were broadcast and why he was unhappy with them.

The complainant replied on 18 July 2010 objecting to the Complaints Co-ordinator‟s response and asking for clarification about the two reference numbers given to his complaint. On 29 July 2010 the complainant sent a full dossier of his complaints to BBC World News. On 2 August 2010 the complainant sent a full email reply to the Complaints Co-ordinator giving a list of examples from the BBC‟s coverage of the red shirt protests of “possible bias, factual inaccuracy, ignorance and sensationalism”.

On 9 August 2010 the Complaints Co-ordinator replied and again said that in order to take on and respond to complaints, the BBC required complainants to specify the output about which they were complaining.

During further emails the Complaints Co-ordinator stated that the complainant was now in touch with BBC World News and that having noted the complainant‟s views and explained the BBC‟s position, he must now conclude corresponding on this matter. After further emails, the Complaints Co-ordinator replied on 17 August 2010 saying he was unable to correspond further.

Stage 2

The Stage 2 process was handled by the Deputy Head of Newsgathering. She first replied to the complainant‟s full dossier of complaints (dated 29 July 2010) on 8 January 2011. The Deputy Head of Newsgathering‟s letter of 8 January, and the complainant‟s response of 24 January 2011 are summarised below.

In her letter the Deputy Head of Newsgathering began by apologising for the long delay in replying to the letter of 29 July 2010.

The Deputy Head of Newsgathering noted that there were few references in the submission to specific reports or dates.

The Deputy Head of Newsgathering also noted that many of the comments were from third parties.

The Deputy Head of Newsgathering said she had studied the complainant‟s dossier of complaints and tried to identify recurring themes and specific questions.

1. Incorrect Translations. She explained how translations were carried out by broadcasters to accurately reflect the sentiments or opinions being expressed.

2. Inaccurate descriptions of locations of incidents. The Deputy Head of Newsgathering said that she had not been able to identify any sequence which included the image of a tank and Rachel Harvey‟s interview with a woman from Isaan. She said that it was possible there may have been an inappropriate juxtaposition in this case but she had been unable to check this without details of the time and date that this sequence was broadcast.

3. Lack of coverage of violent incidents carried out by the red shirts - for example failure to report an attack on Chula Hospital. The Deputy Head of Newsgathering said that the BBC had reported incidents of violence by the red

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shirts and that the BBC reported on the Chula hospital attack on 30 April. She said: “I attach here links to the coverage on the BBC website from that day which includes video footage from the hospital.”

4. “Anonymous” red-shirt protester interview by Rachel Harvey was actually Weng Tojirakarn. The Deputy Head of Newsgathering said she had talked to Rachel Harvey, who had interviewed Mr Weng on several occasions and had not kept his identity secret. She said that without details of the date of this piece it was impossible to trace the incident.

5. Repeated claims that the Prime Minister’s government was unelected (including references to Zeinab Badawi’s Hardtalk interview.) The Deputy Head of Newsgathering said that references in the Hardtalk programme had already been addressed separately by the editor of the programme. She said she understood that there had been a separate complaint about a reference to the government being unelected in one of Alastair Leithead‟s pieces and the BBC had issued an apology to the government for this mistake.

6. Lack of interviews with government officials. The Deputy Head of Newsgathering said the BBC team in Bangkok had tried constantly to get official responses and had found it extremely difficult to get interviews with government officials – and they had been limited to using clips which had been recorded by news agencies. However, she said that whenever Prime Minister Abhisit gave a statement it had been reported. She also said that Rachel Harvey had interviewed the government spokesman in March 2010 before the protests had got underway and that Alastair Leithead had interviewed the Prime Minister and Finance Minister Korn during the protests.

In the complainant‟s reply on 24 January 2011 he said that many of his comments involved “undateable issues”. The complainant said that it was unfortunate that he was unable to provide dates for some of his accusations and that had been used against him. He said a group action would inevitably have third party points of view and that the BBC appeared to have difficulty in dealing with “group initiatives”.

In response to the points addressed by the Deputy Head of Newsgathering the complainant said:

1. His main point seemed to have been ignored, namely that there had been “no attempt to distinguish between English language propaganda, banners, posters, clips that had been carefully prepared by the Red Shirt leadership for the foreign media and the violent hate messages that were being communicated to the demonstrators in their own language 24/7”.

2. He questioned why Rachel Harvey‟s reports were so difficult to research and whether she had been asked about this particular interview.

3. He asked where the evidence was that this footage was shown on BBC World News and said that the point was that there was far less reference to violence inflicted by the red shirts than there was to violence purportedly coming from the army.

4. He said it seemed almost unbelievable that the BBC was not able to investigate Rachel Harvey‟s news pieces, and said that Mr Weng had been presented as a

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passer-by shortly after the live TV debates between the government and the red shirt leaders on Thai television.

5. He said that his “biggest complaint was that the BBC had not done its homework and that Zeinab Badawi had been dismissive, aggressive and confrontational, but not in a cut and thrust way”.

6. He said there had been a clear overuse by the BBC of the red shirt spokesman, Sean Boonpracong, providing a very clear imbalance, and a frequent lack of a contrasting point of view.

The Deputy Head of Newsgathering sent a further letter on 14 February 2011 responding to the complainant‟s letter of 24 January 2011. She said that the complaints procedure was not the right prism through which to examine the impartiality of the entirety of the BBC‟s output.

She said she had asked Rachel Harvey about the specific sequence the complainant described in which an image of a tank was juxtaposed with an interview Rachel Harvey conducted. However, Rachel Harvey could not recall this particular coverage and the Deputy Head of Newsgathering saw no reason to doubt her word. The Deputy Head of Newsgathering said that if there had been an on-screen juxtaposition it would have almost certainly been created in London at the time of broadcast and it would have been a disproportionate use of resources to look through all the material broadcast on BBC World News throughout the period of this story.

On the question of an interview with Mr Weng, the Deputy Head of Newsgathering said she had found a piece from 5 April 2010 which fitted the description but the person Rachel Harvey had interviewed had not been Mr Weng – the man had borne a passing resemblance to Mr Weng but they had been two different people.

In regard to the language of the banners carried by the protesters, the Deputy Head of Newsgathering said the BBC had not relied on English statements and banners and had paid attention to what was being said in Thai. She said the BBC‟s assessment was that although there had been some instances of incitement to violence, those had certainly not been the majority.

Appeal to the BBC Trust

The complainant appealed to the BBC Trust on 4 March 2011. In his appeal letter he said that a large part of his whole case was based on issues and facts that were not reported. The complainant also said that the formation of his group took place at the end of a long period of news coverage and so it had not generally been possible to give precise dates and times of news bulletins.

The complainant accused the BBC of “blatant bias, persistent factual inaccuracy, gross distortions and sensationalism” in its coverage of the Bangkok protests. He referred to his original document which contained a 103-point list, and highlighted “just a few examples”:

 Bias: The clear and regular reporting of red shirt propaganda was rarely counterbalanced with information concerning the more sinister aspects of the red shirt campaign, such as incitement to violence.

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 Factual inaccuracy: Statements claiming that the government refused to negotiate were untrue.

 Gross distortion: BBC coverage suggested that this was a poor versus rich class war and implied, or sometimes stated incorrectly, that the Abhisit government is illegitimate and originated from a coup.

 Sensationalism: Negative images of tanks and soldiers were often used, including the interview with an Isaan woman demanding democracy and juxtaposed with footage of tanks.

The complainant said there were also many examples about what was not reported or “little reported”. These included:

 Investigative shortcomings: no attempt to investigate the background and motivations of the red shirt leadership: a failure to ask red shirt supporters their understanding of democracy.

 Insufficient local knowledge: seemingly, little understanding of the general complexity of politics in Thailand and the fact that the red shirts are not representative of Thailand as a whole.

The complainant also said that he remained unhappy with the Deputy Head of Newsgathering‟s conclusions and that his group was utterly committed to the allegation that there were serious defects in the BBC‟s coverage of the Bangkok protests. An objective investigation into what went wrong remained his goal.

He also included two pages of supporting notes giving details of a meeting in Bangkok on 9 October 2010 between five of his group and the BBC‟s Alastair Leithead. He said that this meeting was an example of an attempt to stifle his complaint.

The Head of Editorial Standards’ decision

The Senior Editorial Strategy Adviser, Trust Unit, wrote to the complainant on 12 August 2011 to explain the Head of Editorial Standards‟ decision that his appeal did not qualify to proceed for consideration by the Committee. She explained that the Trust does not adjudicate on every appeal that is brought to it, and part of the role of the BBC Trust‟s Head of Editorial Standards is to check that appeals qualify for consideration by the Trust (or one of its complaints committees) under the Complaints Framework.

The Senior Editorial Strategy Adviser explained that the Head of Editorial Standards had noted that the appeal potentially raised a number of important issues.

 Whether the BBC‟s Editorial Guidelines on accuracy and impartiality were regularly breached during the reporting by BBC World News of the political unrest in Thailand the previous year.

 The professional conduct of a number of BBC correspondents.

 The BBC‟s overall reputation in Thailand and beyond for dealing with sensitive on- air issues and how it responds to criticism and maintains trust with its audiences.

She also noted that on closer analysis, the appeal contained a number of unconventional features which had unfortunately made it extremely difficult to assess its validity.

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These features included:

 The appeal was light on precise facts and contained little specific detail of examples of alleged BBC misreporting. The Head of Editorial Standards hoped that the complainant would appreciate that it was therefore extremely difficult to address his general concerns without any precise evidence from specific programme items, which could be tested against the BBC‟s Editorial Guidelines.

 According to the complainant‟s appeal letter, a large feature of his appeal focuses on issues and facts that were not reported. The Head of Editorial Standards took this to amount to a complaint of bias by omission. She noted that while of course any possible bias by omission needs to be taken seriously, it also can be a problematic and time-consuming concept to investigate thoroughly, especially in connection with such a wide range of output.

 The appeal was backed by a large number of “third-party” complainants, who had become involved in an online campaign. The Head of Editorial Standards explained that the complainant‟s objective went well beyond the normal scope of complaints submitted to the Editorial Standards Committee, as it appeared to involve pressing for a full-scale review of the impartiality of the BBC‟s coverage of events in Thailand between March and May 2010.

The Head of Editorial Standards bore in mind the unusual features of this appeal when reviewing all the correspondence from the complainant‟s case. She also took note of the two letters from the Deputy Head of Newsgathering who gave detailed and well-argued responses to the complaints. Having read her letters there did not, in the view of the Head of Editorial Standards, appear to be any substantial evidence that there may have been serious specific breaches of the BBC‟s Editorial Guidelines regarding any of the issues raised by the complainant.

However, in order to provide as comprehensive an assessment as possible given the unusual features outlined above, the Trust Unit obtained a sample of fifteen relevant items broadcast on BBC World News during the period of the red shirt protests in Thailand the previous year and received independent advice about them. The Head of Editorial Standards outlined as below an analysis of the items, which did not amount to a comprehensive review of the relevant output but did provide some significant pointers.

The results of this analysis indicated that:

 There were numerous references to how former Thai Prime Minister, Thaksin Shinawatra, had encouraged some of the demonstrators, e.g. in an interview with Dr Tim Forsyth of the London School of Economics on the 1200 bulletin on 16 May 2010.

 Several references were made to the fact that the Thai Prime Minister was still ready to negotiate with the protesters, e.g. during a two-way interview with Quentin Somerville from Bangkok on the 1200 BBC World News bulletin on 10 April 2010, and during a two-way interview with Rachel Harvey on the GMT programme, 13 May 2010.

 There were several references to the fact that some of the red shirts had been instigating incidents of violence, e.g. the GMT programme on 14 May 2010 reported that protesters had set fire to a bus and had been armed with fireworks and stones. Both Peter Biles and Alastair Leithead also mentioned that some

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protesters had been deliberately provoking government troops. The Deputy Head of Newsgathering also gave the complainant other examples of when red shirt violence had been reported on BBC World News, including the attacks on Chula hospital on 30 April 2010.

 The BBC World News reports featured video footage from a wide variety of perspectives and locations. The BBC correspondents were sometimes behind government lines, sometimes behind the red-shirt lines and sometimes in no- man‟s land (e.g. Rachel Harvey reported in this way on the 1200 bulletin on 15 May 2010).

 There were several clips in these broadcasts of Thai government spokesmen talking about the protests, e.g. in the 1200 bulletin on 16 May 2010 and on the GMT programme on 17 May 2010. Where there was no actual clip of a government spokesman included in these broadcasts, the government position was usually explained by BBC correspondents (e.g. in the GMT edition on 13 and 14 May 2010). At the end of the protests on 19 May 2010 the Impact Asia programme carried a substantial interview with the Thai Finance Minister, Korn Chatikavanij.

Overall, it was the Head of Editorial Standards‟ view that there was nothing in the analysed items which indicated there may have been any breaches of the BBC‟s Editorial Guidelines on accuracy and impartiality. Both the government and red shirt positions were routinely given and the broader implications analysed.

In the circumstances, the Head of Editorial Standards was comfortable that the result was likely to be indicative of BBC World News‟ coverage of the issue during this period.

The Head of Editorial Standards made the following assessment according to the BBC Trust‟s own procedure for assessing whether a complaint should progress to the ESC:

 Appropriate: This appeal amounts to a campaign for a full review of the coverage of the red shirts protests. However, while the Trust Unit recognises that political unrest such as this obviously arouses strong feelings and reactions among many sections of the population concerned, bias and distortion may be difficult to prove objectively. It could be argued that the case the complainant put forward is rooted in an expression of political and personal perspectives rather than the presentation of a detailed analytical case. The Head of Editorial Standards noted the explanations the complainant provided for this, but against this backdrop said it did not seem appropriate for the Trust to entertain this complaint.

 Proportionate: The Head of Editorial Standards noted that a great deal of BBC time had already been devoted to assessing this complaint, even though it had always been challenging to establish its exact nature. She felt that a full-scale review would require a significant amount of time and effort and that it was difficult, particularly in view of the analysis of the sample items outlined above, to see how a wide-ranging review of the BBC World News coverage of the Thai protests would come to any different conclusions.

 Cost-effective: The Head of Editorial Standards noted that a full-scale review of the kind the complainant sought would take up a considerable amount of resources and money. Given the imprecise nature of the complaint, it would not appear to be a justifiable use of the licence fee to carry out such a review.

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Overall therefore the Head of Editorial Standards‟ decision was that there was not sufficient evidence to suggest that the appeal had a reasonable prospect of success. The Head of Editorial Standards did not propose to put it to the Committee.

Challenge to the decision of the Head of Editorial Standards The complainant challenged the decision of the Head of Editorial Standards on 2 September 2011. He raised a number of points. For example:  he highlighted that the letter did not address his concerns about a translation given by Rachel Harvey in an interview which he had been provided a copy of by the Deputy Head of Newsgathering

 he asked why the interview with Dr Weng had not been located

 he stated that he felt the sample of coverage reviewed was too small and a sample should be taken from March and April 2010;

 he complained that while the BBC had admitted an apology was made to the then Prime Minister Abhisit following an edition of Hardtalk this had not been made public

 he stated that if the complaint was going through the World News system cost- effectiveness should not be a concern

 he asked the Trustees to consider why Alastair Leithead had attempted to “silence” his group by meeting with them in 2010

 he stated that different parts of the BBC had provided him with different information regarding their access to a translator and reports on the hate speeches

 he asked the BBC to admit its coverage of the situation in Thailand had improved following his complaint.

The Trust Unit responded on 17 October 2011, noting that the complainant had raised several points to support his challenge and explaining that his letter would be provided to the Committee when it considered the complainant‟s challenge to the Head of Editorial Standards‟ decision not to proceed. Accordingly, the Trust Unit did not propose to respond to the majority of the points raised at this point.

However, the Trust Unit noted that the complainant‟s point that the Head of Editorial Standards‟ letter did not address his concerns about a translation given by Rachel Harvey (on BBC World News on 5 April 2010). This point had not been addressed by the BBC Executive in the first instance and so the Trust Unit asked the Deputy Head of Newsgathering to provide the complainant with a response directly.

The Trust Unit also explained to the complainant that, in relation to the size of the sample, an Independent Editorial Adviser would be asked to review coverage from a further six days in March and seven days in April.

Further response from the BBC Trust

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The Head of Editorial Standards wrote to the complainant again on 13 January 2012. She explained that she was responding on two points the complainant raised in his challenge:

 The first point concerned the English translation which appeared in a Rachel Harvey report on BBC World News on 5 April 2010 about the red shirts protests in Bangkok  The second point concerned the issue of the size of the sample used in the Trust Unit analysis of the complaint.

Translation point – background

In her letter the Head of Editorial Standards set out the background to the English translation point, before setting out her decision that this point of appeal did not qualify to proceed.

The Head of Editorial Standards noted that the complainant‟s list of 103 examples of possible bias, factual inaccuracy and sensationalism (submitted at Stage 1) included the complaint that the BBC had wrongly translated statements from red shirts. The complaint regarding the specific translation of a Rachel Harvey report on 5 April 2010 on BBC World News came about after the complainant obtained a DVD of this report further to correspondence with the Deputy Head of Newsgathering at Stage 2.

 In response to the complainant‟s point that an „anonymous‟ red-shirt protester interviewed by Rachel Harvey was actually Weng Tojirakarn, the Deputy Head of Newsgathering explained in a letter dated 4 January 2011 that it was impossible to trace the incident that provoked the complaint without details of the date of the piece in question.

 On 24 January 2011 the complainant responded giving dates when the item may have been broadcast and on 14 February 2011 the Deputy Head of Newsgathering explained that a piece from 5 April which fitted the description of the interview had been found. She explained that the person interviewed in this footage was not Dr Weng.

 The complainant replied on 17 February 2011 requesting a copy of the interview, which was sent. Unfortunately he did not receive this copy and following liaison with the Trust Unit a further copy was sent in April 2011, after he had made his appeal to the BBC Trust on 4 March 2011.

Translation point – complaint

On 9 May 2011 the complainant wrote to the Deputy Head of Newsgathering and the Trust regarding the translation, and provided a further response regarding the translation on 18 May 2011 as below, asking that this issue be considered as part of his wide-ranging complaint regarding the entire coverage of the red shirts issue between March and May 2010. The complainant quoted a transcript of Rachel Harvey‟s interview with a red shirt supporter:

“I‟m just going to ask this gentleman why he‟s come to join the protest. Hello sir. Could you just tell me why you‟re here today?”

After the interviewee had spoken in Thai, Rachel Harvey provided this translation:

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“So the gist of what he was saying there was that he has supported the red shirt movement ever since the military coup of 2006 and he‟s here protesting because he wants what he calls true democracy and proper social justice.”

The complainant said that is was absolutely correct that the interviewee revealed his desire for democracy and justice without double standards. However, the complainant said that he made no reference whatsoever to the length of his membership in the red shirt movement, nor did he mention the coup of 2006.

The complainant said these were the words of Rachel Harvey, and he believed that by drawing attention to something that the interviewee had not even mentioned there was a strong argument for the possibility that Rachel Harvey had been intending to directly influence the thought processes and reactions of the general viewing public.

The complainant suggested that this provided evidence of Rachel Harvey pursuing her own agenda by referring to the coup which she believed to be the cause of all the trouble. The complainant believed that an alternative explanation was that the interpreters chosen by the BBC must have submitted a false translation.

On a related issue the complainant said that the red shirt movement as a visible entity had not been in existence in 2006 and had only started in 2008 as a response to yellow shirt activism. He also stated his view that the mass mobilisation of red shirt supporters had been recent, and had been a consequence of the confiscation of a large amount of Thaksin Shinawatra‟s wealth.

Unfortunately the point regarding this translation was not addressed in the letter to the complainant of 12 August 2011. After a period of delay, for which the BBC Trust Unit apologised, the specific complaint was referred to the Deputy Head of Newsgathering for a Stage 2 response.

Stage 2 response to translation point

The Deputy Head of Newsgathering wrote to the complainant on 18 October 2011 and said that the complainant had been correct to say that Rachel Harvey had not offered a literal translation when she explained what the interviewee had said.

The Deputy Head of Newsgathering said the key phrase was “the gist of what he was saying”. She said that, as she had explained in earlier correspondence, it was not unusual for BBC correspondents to paraphrase comments by interviewees when they were translated. She said that Rachel Harvey had confirmed to her that she and her team had spoken to the man before the interview and had included some of the details he had given her when she had summarised his views in English.

The Deputy Head of Newsgathering said that Rachel Harvey had been clear that everything she had said fairly represented the position of the man she had spoken to. In addition, she had been open and transparent with the audience, making clear that she had been expressing “the gist” of his comments, not a direct translation.

The Deputy Head of Newsgathering said she therefore had nothing to add on this matter. The complainant replied on 26 October 2011 and said her conclusions were totally unsatisfactory.

Head of Editorial Standards’ response to translation point

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On 26 October 2011 the complainant wrote to the BBC Trust, disagreeing with the decision given by the Deputy Head of Newsgathering, and asking that this complaint be escalated.

The complainant said that the fact that Rachel Harvey had failed to provide a literal translation was not so much his concern – it was the fact that other details had been added to what the interviewee had been saying in the clip.

The complainant asked whether it was good practice at the BBC to add things that had been said off-camera to the translation of statements made during an official on-camera interview. The complainant‟s view was that this practice was totally unethical and unfair both to the interviewee and to the viewing public.

In addition, the complainant said that the response by the Deputy Head of Newsgathering had failed to acknowledge his point about it being incorrect to say that the red shirt movement had been in existence in 2006.

In the letter of 13 January 2012, the Head of Editorial Standards noted what the complainant said about the translation being inaccurate but considered that the word “gist” used by Rachel Harvey when describing what the interviewee had said to her in Thai was an essential signpost to the audience. Rachel Harvey was not claiming that this was a literal translation – she was providing a summary of his views and providing the context in which they had been made.

The Head of Editorial Standards also noted what the complainant said about the formation of the red shirts movement and that this had not occurred until 2008, not in 2006 as mentioned in Rachel Harvey‟s summary of the view of the red shirt supporter. However, the substance of the point was that the interviewee was a long-term supporter of the red shirts movement. Even if what the speaker had said to Rachel Harvey was not strictly accurate the Head of Editorial Standards felt that it was duly accurate for him to say and her to relay the substance of the point, i.e. that he had been a supporter of the opposition to the Thai government since 2006.

Given the above factors the Head of Editorial Standards was satisfied that this point of appeal had no reasonable prospect of success. She did not feel that the point raised in any way changed her decision not to proceed with his wide-ranging appeal regarding the entire coverage of the red shirts issue between March and May 2010. She gave the complainant the opportunity to respond on this specific point if he wished to do so.

Review of additional footage

The Head of Editorial Standards‟ letter of 13 January 2012 also dealt with the complainant‟s comment that the sample of footage reviewed was too narrow. The Head of Editorial Standards explained that an Independent Editorial Adviser was asked to review coverage from a further five days in March and seven days in April. Following this review, the Head of Editorial Standards was satisfied that there was nothing to change her decision that the appeal should not proceed to the Committee as it would not have a reasonable prospect of success.

The conclusions of the Independent Editorial Adviser were provided to the complainant in a further email of 26 January 2012. In that email it was explained that the independent adviser analysed an additional 15 items which were taken from the following dates: 12, 14, 15, 16 and 28 March, and 5, 9, 12, 19, 20, 23 and 28 April 2010 with some items being taken from the same day. The results of the analysis indicated that:

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1. Correspondents routinely gave a summary of the ideological and tactical positions taken by the government and the red shirts protesters, e.g. Rachel Harvey report on GMT on 15 March 2010 and Alastair Leithead report on 19 April 2010. On GMT on 12 April the presenter read a balanced intro line saying that both sides accused each other of firing weapons during a confrontation during the previous weekend in which 21 people were killed.

2. There were some references to the fact that many in Thailand were unhappy with the red shirts protests. On 16 March 2010 Impact Asia conducted a live two minute interview with a Thai businessman, Buntoon Wongseelashote, who had contacted the BBC via its website. He said: “The demonstration itself ... I must say it may appear to people of the world that a lot of people are unhappy with the government. The truth is that most of the people in Thailand are happy with the present government. When they (i.e. the red shirts) claim that the current government is illegitimate it is not right.”

On 15 March an Alastair Leithead report on Impact Asia included a clip of the Thai Prime Minister explaining that he would not dissolve parliament and said there were other key voices in the country that had to be listened to. On GMT 1 on 28 April Rachel Harvey‟s report contained footage of protesters demanding that the red shirt demonstrations be called off.

3. The comments by the presenters and correspondents were generally well-sourced with both sides being quoted. The claim that the Prime Minister had come to power illegitimately was attributed to the red shirts and was not put forward by the BBC, e.g. George Alagiah on GMT on 16 March: “The demonstrators, many of them supporters of the former Prime Minister, Thaksin Shinawatra, accuse the current government of being illegitimate.”

4. The footage of government tanks and troops was used responsibly with BBC correspondents careful to show how these forces were generally using restraint e.g. both Rachel Harvey and Alastair Leithead on outlets on 16 March 2010 described how government forces were using jazz music to try to promote an atmosphere of calm. On GMT 1 on April 19 Alastair Leithead described how the government forces were heavily armed but were also using flowers as a gesture. The meeting between three government leaders and three red shirt leaders was given considerable prominence on the 1200 bulletin on 28 March 2010.

5. Correspondents reported from inside the camps of both sides but also in the same reports talked about how the other side was being deployed, e.g. on GMT on 15 March Rachel Harvey reported from the streets where red shirt protesters had gathered but also showed the government forces through a fence. On GMT on 19 April Alastair Leithead reported from among the government forces but also showed the red shirt encampment across the street. In general the correspondents pointed out the unrest was localised and took place either in a main shopping district or the edge of the business/commercial area of Bangkok.

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The editorial adviser concluded that this analysis builds on the results of the earlier analysis – that there were no indications of any breaches of the BBC‟s Editorial Guidelines on accuracy and impartiality.

Response to the Head of Editorial Standards’ letter of 13 January 2012

The complainant responded to the Head of Editorial Standards on 8 February 2012 in respect of the translation issue and the sample reviewed.

He repeated points he had made in his appeal to the Trust regarding the translation issue, highlighting that his concern was not so much that Rachel Harvey had failed to provide a literal translation, but that other details were added to what the interviewee was saying. He asked questions about the interview and stated that if this had been an English language interview, it is highly unlikely that Rachel Harvey would have added off-camera comments after the interview. He also objected to the Head of Editorial Standards‟ response that the substance of the comment about the support for the red shirt movement since 2006, was that the interviewee was a long-term supporter of the red shirts movement.

As to the sample reviewed, the complainant repeated his point that the BBC was offering samples of news reports to disprove wide ranging and serious accusations.

The complainant also provided in his response a transcript of a film compilation available on YouTube, which he said clearly illustrates “the red shirt message: a benign face for the worldwide public and an inflammatory one for the red shirts on the ground”. He asked how the BBC could have missed this.

The Committee’s decision The Committee was provided with: the complainant‟s original appeal letter to the Trust, the Head of Editorial Standards‟ decision not to proceed with his appeal (dated 12 August 2011), the complainant‟s challenge to the Head of Editorial Standards‟ decision (dated 2 September 2011), the Stage 2 decision dated 14 February 2011, the Head of Editorial Standards‟ letter of 13 January 2012 (regarding the translation point and the sample), the complainant's response to that letter (dated 8 February 2012) and the Stage 2 response on the translation point (dated 18 October 2011). The Committee was also provided with the complainant‟s 103 point original list of July 2010, and the 40 page dossier was made available to the Committee at the meeting, along with the email to the complainant setting out the conclusions of the Independent Editorial Adviser (dated 26 January 2012) and the email from the Deputy Head of Newsgathering to the complainant dated 8 January 2011.

The Committee was also provided with the sample footage which had been provided to the Independent Editorial Adviser.

The Committee noted the unconventional features of the appeal which had been identified by the Head of Editorial Standards. In particular it noted that the appeal was light on precise facts and contained little specific detail of examples of alleged BBC misreporting. It also noted that a large feature of the appeal focused on issues and facts that were not reported. The Committee agreed that, on the basis of the information provided by the complainant, there did not appear to be any evidence that there may have been specific breaches of the BBC‟s Editorial Guidelines regarding any of the issues raised by the complainant.

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The Committee noted that, as an exception to the usual process, the Trust Unit had obtained a sample of 30 different items broadcast on BBC World News during the period of the red shirt protests in Thailand, and obtained independent advice on the samples, in order to check whether there were any significant pointers in the coverage that there was an arguable case that the Editorial Guidelines had been breached.

The Committee noted that the Head of Editorial Standards was satisfied that the coverage in the 30 items did not indicate that there had been breaches of the Editorial Guidelines. It noted that the complainant had objected to the Head of Editorial Standards “providing single examples of news reports to disprove wide-ranging and serious allegations”. However, the Committee agreed that appropriate steps had been taken by the Head of Editorial Standards to analyse whether the complainant‟s appeal raised a matter of substance, so qualifying it to proceed for consideration.

The Committee agreed that there was nothing in the 30 items which indicated that there may have been a breach of the Editorial Guidelines. It noted that the complainant was pressing for a full-scale review of the impartiality of the BBC‟s coverage of events in Thailand between March and May 2010. However, given that the complainant had not provided examples of any specific items which breached the BBC‟s Editorial Guidelines, and given that there was nothing in the samples to indicate that the coverage breached the BBC‟s Editorial Guidelines, the Committee agreed that it would not be appropriate, proportionate or cost- effective to undertake such a review, and that this appeal did not have a reasonable prospect of success.

The Committee noted the complainant‟s objections to the Head of Editorial Standards‟ comments that it would not be cost-effective to undertake a full scale review of the BBC‟s coverage. However, it agreed that it was appropriate to consider whether it was proportionate and cost-effective to proceed with the appeal, when considering whether the appeal qualified to proceed for consideration.

In relation to the complaint about the translation given by Rachel Harvey, the Committee noted the Stage 2 response, and the objections raised by the complainant in response. The Committee noted the quoted transcript provided by the complainant. It agreed that the word “gist” used by Rachel Harvey when describing what the interviewee had said to her in Thai was an essential signpost to the audience. The Committee agreed that Rachel Harvey was not claiming that she was giving a literal translation, but was providing a summary of his views. It also agreed that the substance of the point made in Rachel Harvey‟s translation that the interviewee had supported the red shirts movement since 2006, was that the interviewee was a long-term supporter of the red shirts movement. Even if what the speaker had said to Rachel Harvey was not strictly accurate the Committee agreed that it was duly accurate for him to say and her to relay the substance of the point, i.e. that he had been a supporter of the opposition to the Thai government since 2006. Accordingly, the Committee agreed that this point of appeal did not have a reasonable prospect of success.

The Committee noted that the complainant had asked why a copy of the interview with Dr Weng had not been found. The Committee noted that the Deputy Head of Newsgathering had found a piece which fitted the description provided by the complainant, except that the interviewee had not been Dr Weng. The Committee agreed that appropriate steps had been taken to locate the interview described by the complainant and it would be disproportionate for the BBC to search further for the item especially given the complainant could not provide any further details of its broadcast. The Committee agreed that the failure to locate the interview did not raise an issue in terms of a breach of the Editorial Guidelines.

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The Committee noted the complainant‟s comment that while the BBC had admitted an apology was made to the then Prime Minister Abhisit this had not been made public. The Committee agreed that in the absence of an upheld breach at Stage 2 or an upheld breach by the Committee, there is no requirement for an editor‟s response to complaints about a programme to be made public. The Committee noted that the complainant referred to a meeting of his group and Alastair Leithead as an attempt to “silence” them. The Committee agreed that they had not seen any evidence which suggested that Alastair Leithead was seeking to “silence” the complainant. The Committee commended the correspondent for meeting with the group to try to understand and resolve their concerns. The Committee noted that the complainant had said that Alastair Leithead had made comments in the meeting with the complainants which contrasted with statements made at Stage 2 by the Deputy Head of Newsgathering. The Committee agreed that this did not appear to give rise to a potential breach of the Editorial Guidelines.

The Committee noted that the complainant had provided a transcript of a film available on YouTube, which he said clearly illustrated the red shirt message: “a benign face for the worldwide public and an inflammatory one for the red shirts on the ground”. The Committee agreed that the transcript of this film did not provide any evidence to indicate that the BBC‟s coverage of the red shirt issue had been inaccurate or partial. Accordingly, the Committee agreed that the appeal did not have a reasonable prospect of success, noting that it would not be appropriate, cost-effective or proportionate for the appeal to proceed for consideration. The Committee agreed that the appeal did not raise a matter of substance. The Committee therefore decided the appeal did not qualify to proceed for consideration.

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The Bible’s Buried Secrets, BBC Two, 15, 22 and 29 March 2011 The complainant appealed to the Editorial Standards Committee following the decision of the Head of Editorial Standards that the complainant‟s appeal did not qualify to proceed for consideration by the Committee. The complaint Stage 1 The complainant contacted the BBC on 19 March 2011 alleging that the first part of the series, „Did King David‟s Empire Exist?‟ was one-sided and did not mention the Egyptian New Chronology popularised by historian David Rohl.

The complainant received a response on 30 March 2011 from the production team explaining that David Rohl‟s theories were not featured because his revised chronology of ancient Egypt is not widely adopted in biblical scholarship. The BBC went on to say that all three programmes in the series attempt to set the debates about history and the Bible within the chronological and archaeological frameworks employed in mainstream biblical scholarship.

The complainant answered on 30 March 2011 arguing that Rohl was not alone in questioning the orthodox/conventional Egyptian chronology. He went on to criticise the programme as one-sided and suggested that the presenter, as an atheist, was limited in her experience of the Bible as the word of God. He referred to two blogs. The complainant wrote again on 15 April 2011, complaining that he had not received a reply.

BBC Audience Services replied on 17 April 2011 saying that they could not trace the complainant‟s email of 30 March but would answer the points raised in his letter of 15 April. Since the reference to the two blogs was only outlined in the email of 30 March, this was not touched upon. It was explained that Dr Stavrakopoulou was chosen to present the series on the strength of her credentials as a biblical scholar and not her personal beliefs. The BBC pointed out that she is Senior Lecturer in Hebrew Studies at the University of Exeter and has published extensively in this field.

The complainant responded on 18 April 2011 claiming the documentary was subjective and selective. He argued that it ignored alternative findings and interpretations such as David Rohl‟s New Chronology of Egypt.

On 27 May 2011 the Executive Producer wrote to the complainant and pointed out that the programme reviewed the current viable theories around and reflected those that had been peer-reviewed by biblical scholars. He argued that David Rohl‟s theories were not discussed because they have not been widely adopted in biblical scholarship. He suggested that if a programme were to take into account every interpretation it would have to refer to every conceivable theory – however maverick – that has ever been put forward.

There was a further round of correspondence before the complainant escalated his complaint to Stage 2.

Stage 2

On 27 July 2011 the complainant wrote to the Head of Religion and Ethics repeating his complaint that The Bible‟s Buried Secrets was one-sided and selective in both content and approach. He said that he felt it was misleading to imply that the Old Testament is not

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solidly, soundly and securely based in real history. He urged the BBC to steer clear of sensationalist claims that “this or that discovery will rock the foundations of Judeo- Christianity” and asked how the BBC safeguards the truth.

The Head of Religion and Ethics responded on 30 August 2011 saying that the Executive Producer had already tried to explain the BBC‟s position. He said “we tried to produce an imaginative and thought-provoking series”.

Appeal to the Trust

The complainant wrote to the BBC Trust on 20 September 2011, referring to previous correspondence for the substance of his complaint.

He explained that his complaint “focuses solely on the almost dismissive manner in which programme makers and the presenter treated the Bible and, with it, the sensibilities of Christians and Jews”.

He felt the programmes constituted “an unjustified attack on the integrity of Old and (by inference) New Testaments and the faith of millions of pious Jews and committed Christians”. He argued that “the lack of any discernible attempt to achieve balance or fairness surely represents a serious breach of the BBC‟s editorial guidelines”.

Decision of the Head of Editorial Standards

The Head of Editorial Standards replied initially on 16 December 2011 and then wrote again amending this letter on 31 January 2012, following the provision of further correspondence from the complainant which the Trust Unit had not previously seen.

The Head of Editorial Standards explained that the Trust does not adjudicate on every appeal that is brought to it, and part of her role is to check that appeals qualify for consideration by the Trust (or one of its complaints committees) under the Complaints Framework. The Head of Editorial Standards said that she had read the relevant correspondence and considered that the appeal did not have a reasonable prospect of success and should not proceed to the Trust‟s Editorial Standards Committee.

The Head of Editorial Standards accepted that the complainant had argued very forcibly that The Bible‟s Buried Secrets failed to achieve balance and fairness and that it caused offence to Jews and Christians. She therefore considered the appeal request looking specifically at the BBC Editorial Guidelines on impartiality and on religion.

She noted that the complainant had argued that the programmes in series were unbalanced and one-sided because they ignored “inconvenient alternative findings and interpretations”. She noted in particular the he felt it was unfair not to include David Rohl‟s views in the first programme of the series, in which the presenter explored the arguments for and against the historical accuracy of the biblical story of David.

The Head of Editorial Standards explained that, as the guidelines make clear, it is not possible to include every strand of thought in an hour-long documentary. Noting that David Rohl‟s views were omitted altogether, she said that the questions which then arise from the application of the Guidelines are: is it an important perspective and was the decision to omit this perspective reasonably and carefully reached?

The Head of Editorial Standards noted that the programme-makers had explained that the archaeological chronology used in the programme on King David is employed by the vast

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majority of biblical scholars and historians. In contrast, David Rohl‟s theories questioning that chronology have not been widely adopted in biblical scholarship. She noted the programme makers had said that David Rohl “is simply not significant enough an academic voice in biblical and Near Eastern studies to have necessitated engagement with his theories”. She also noted that David Rohl‟s work is, on the whole, not published with the main academic publishers and is not widely adopted by academics.

The Head of Editorial Standards said that, given that David Rohl‟s views are not widely adopted in mainstream biblical and ancient Near Eastern archaeology, it appeared to her that it could not be characterised as an important perspective which had to be included in order to achieve due impartiality.

Turning to the wider issue, the Head of Editorial Standards noted that a number of interviewees in the programme did support the historical accuracy of the Bible, including Professor Yosef Garfinkel, Hebrew University of Jerusalem; Doron Spielman, City of David; and Professor Baruch Halpern, Pennsylvania State University. All of these voices argued against the position taken by the presenter and challenged her view.

The Head of Editorial Standards noted that it was true that the presenter made it clear in the programme that she did not think that the evidence for the existence of King David‟s empire made “a convincing picture”. She noted that the BBC Guidelines do allow an academic or other specialist to express a personal view in its output as long as such personal view content is clearly signposted to audiences. She said that, while the presenter, who is Senior Lecturer in Hebrew Studies at the University of Exeter, is clearly well qualified to offer her opinion, it is important that the programme therefore clearly indicated to the audience that she was offering an expert opinion on this debate rather than undisputed fact.

The Head of Editorial Standards noted that, at the beginning of the first documentary, the presenter gave her academic credentials so that the audience knew who she was. She also spoke in the first person saying, for example, when listening to a tourist guide confidently claim that David‟s psalms were written 3000 years ago in Jerusalem, that “evidence presented here as fact, I know to be ambiguous”. Later, when she visited the site of a fortified walled town at Khirbet Qeiyafa she commented that “on the face of it, this is really compelling evidence and it certainly challenges some of my own ideas about this period”.

The Head of Editorial Standards noted that the second programme in the series focused on monotheism. The presenter outlined in the broadcast the contention that the ancient Israelites practised polytheism rather than monotheism. However, the Head of Editorial Standards believed the programme was clear that this was the presenter‟s personal view. For example, she qualified her statements with phrases such as “I believe...”, “I disagree...”, “in my view...”, “it strikes me...” and “I‟m convinced...”. The Head of Editorial Standards noted that, again, the programme featured a number of individuals whose views were different from the presenter‟s, such as Rabbi Ken Spiro of a Jerusalem Yeshivah.

The Head of Editorial Standards then turned to the third programme in the series, which focused on the Biblical story of the Garden of Eden. She noted that the presenter set out a challenge to conventional understanding by examining whether the Garden of Eden was an allegory of a real place in ancient Israel. The Head of Editorial Standards noted that the presenter‟s views were made clear by statements such as “I think…”, “I want to argue…”, “I can see why…”, “I agree…” and “If I‟m right…”. And again, the programme featured opposing views, such as Vinny Commons, a creationist.

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The Head of Editorial Standards therefore felt that the presenter‟s commentary in all three programmes left the audience in little doubt that she had opinions about the period and was expressing them openly. The Head of Editorial Standards said that the examination of opposing views throughout the programmes reinforced the viewer‟s understanding that the matters under discussion were disputed and that the presenter‟s view was not universally held.

The Head of Editorial Standards explained that she had carefully weighed the complainant‟s concerns against the BBC guidelines on Impartiality. Bearing in mind the information set out above, she did not feel this aspect of his complaint had a reasonable chance of success.

The Head of Editorial Standards then noted the BBC Guidelines on Religion. She explained that she understood that the series had offended the complainant and she regretted the distress this caused him. She also said that she appreciated his view that the programmes “constituted an unjustified attack on the integrity of Old and (by inference) New Testaments and the faith of millions of pious Jews and committed Christians”. However, she accepted the argument put forward by the Executive that aspects of the programme which seemed challenging and provocative to the complainant are the subject of mainstream debate in academic circles and included in lectures in Bible Studies degree programmes in the UK and elsewhere. To inform viewers of current debate in biblical scholarship seemed to her to amount to a clear editorial justification. She did not think it appropriate to suggest that the presenter denigrated the religious beliefs of others: the presenter may not have held the same views but she did not disparage or ridicule them. Consequently, the Head of Editorial Standards said she did not feel that this aspect of the complaint had a reasonable chance of success either.

The complainant responded on 31 January 2012 expressing his disappointment with the decision. He said that he felt the programmes misinformed viewers and he suggested other theorists‟ positions which could have been included. The complainant questioned whether the series had been referred to a senior editorial figure in the BBC. The Trust Unit confirmed to him on 3 February 2012 that the Head of Religion and Ethics had final sign off on the programmes.

The Committee’s decision

The Committee was provided with the complainant‟s appeal to the Trust, the response from the Head of Editorial Standards, and the complainant‟s letter asking the Committee to review the Head of Editorial Standards‟ decision. The Committee was also provided with the final responses from the Executive Editor of the series and the Head of Religion and Ethics. The Committee was also provided with the series of three programmes.

The Committee noted the complainant‟s strong feeling that the programme had been offensive to himself and other Christians. The Committee noted that he had taken issue with the presenter‟s point of view and had argued that other, contrasting viewpoints should have been featured in the programme.

The Committee noted that the BBC Guidelines do allow an academic or other specialist to express a personal view in its output, as long as such personal view content is clearly signposted to audiences. The Committee agreed that the presenter, who is Senior Lecturer in Hebrew Studies at the University of Exeter, left the audience in little doubt that she had opinions about the period and was expressing them openly. The Committee

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also agreed that the examination of opposing views throughout the programmes reinforced the viewer‟s understanding that the matters under discussion were disputed and that the presenter‟s view was not universally held. The Committee noted that, in his challenge to the Head of Editorial Standards‟ decision, the complainant had said that the response to the complaint had focused solely on the work of David Rohl. The Committee agreed that the point made above would apply to all those who held alternative viewpoints and Mr Rohl was just one example.

The Committee noted the Executive‟s argument that aspects of the programme which seemed challenging and provocative to the complainant are the subject of mainstream debate in academic circles and included in lectures in Bible Studies degree programmes in the UK and elsewhere. The Committee agreed that, in informing viewers of the current debate in biblical scholarship the presenter did not denigrate the religious beliefs of others.

Having considered the points raised by the complainant and the responses from the BBC and the Head of Editorial Standards, and viewed the series of programmes, the Committee agreed that it was a matter of editorial judgement for the BBC to decide who to include in its programmes, that there were sufficient opposing voices in the episodes of this series and that the presenter did not denigrate the religious beliefs of others. Taking into account the guidelines on Impartiality and Religion, the Committee agreed that the complaint did not have a reasonable prospect of success on appeal.

The Committee therefore decided this appeal did not qualify to proceed for consideration.

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BBC Online coverage of the 2011 UK Census The complainant appealed to the Editorial Standards Committee following the decision of the Head of Editorial Standards that the complainant‟s appeal did not qualify to proceed for consideration by the Committee. The complaint Stage 1 The complainant emailed the BBC on 29 March 2011. He said that an article published on the BBC website on 22 March 2011 entitled “Religion may become extinct in nine nations, study says” was trying to alter the outcome of a question about religion contained within the census that was due to be completed shortly.

He said that another article published on the BBC website on 21 March 2011 entitled “Two-thirds of Britons not religious, suggests survey” was also trying to influence the public about what they should say on the census form.

BBC Audience Services replied saying that there was no reason why the BBC would have a vested interest in the outcome of the question on religious preference in the census form. The response said that the reason for the timing of the article on 22 March 2011 was because a paper on the subject was presented at the American Physical Society conference, which was being held at the time.

Stage 2

The complainant emailed the BBC‟s Editorial Complaints Unit in April 2011 to say that the BBC had attempted to manipulate how people completed the question on religion in the census form by running a series of articles in the days before the form had to be completed.

He cited the two articles mentioned at Stage 1 and two others on the BBC website: “Humanist religious question census campaign launched” published on 4 March 2011 and “Census: How religious is the UK?” published on 21 February 2011.

The complainant said the BBC had failed to be impartial in these articles. He alleged that these articles were intended to draw people‟s attention to the “No religion” box on the questionnaire and to suggest to people that they should tick that box.

The complainant said the articles gave extensive coverage to the British Humanist Association but had no input from any Christian, Buddhist or Hindu religious organisations. He said religion was a controversial subject and outlined the BBC editorial guidelines he felt had been breached.

The Editorial Complaints Unit responded on 24 August 2011. The Complaints Manager said that the complaint was beyond the remit of the ECU as it could only evaluate the content of individual items taken on their own merit. She said that impartiality across a range of output, the choice of what is and what is not included in reports and the timing of a broadcast or publication were all editorial decisions, responsibility for which lies with news management. As a result, she said she had referred the complaint on to the Head of Editorial Compliance and Accountability for BBC News.

The Head of Editorial Compliance and Accountability for BBC News replied on 22 September 2011. She said she wanted to assure the complainant of the BBC‟s total commitment to impartiality.

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She then examined each of the articles he had highlighted. She said “Census: How religious is the UK?” was an analysis of why the religious question was on the census form. She said it featured the objections of the British Humanist Association as well as comments from the Office of National Statistics, a historian, a spokesperson for the Church of England and a practising Christian. She said she felt the piece examined the issue fairly and accurately and she was satisfied that it was balanced and duly impartial.

She then turned to the article entitled “Religion may become extinct in nine nations, study says”. She said this was a report from a scientific conference in the United States where data from census forms was extrapolated to produce a theory that religion in some countries could become extinct. She said it was simply coincidence that this conference was held in the week ahead of the UK census.

She said the report did not contain data from the United Kingdom, so she did not believe it would have been relevant to seek the views of the Church of England, as the complainant suggested. She said she believed it was editorially legitimate to report the study this way.

She said the other two reports were examining a specific and high profile campaign by the British Humanist Association. She said that had any other organisations launched similar campaigns, then the BBC may well have considered those as “top-line” news stories too.

She said that the complainant had suggested that there should have been input from Christians, Hindus and Buddhists into these pieces. However, she said the story was more about religious affiliation generally and so, in these short news pieces, she believed it was proportionate and legitimate editorially to seek the perspective of a relevant over-arching organisation. She said, in this case, it was the think-tank Theos.

She said that, contrary to the complainant‟s suggestion, there were news reports about the census on the BBC website emanating from other religious groups. She cited two examples; one entitled “Pagans campaign for census voice” published on 27 February 2011 and one entitled “Census 2011: Cardiff council fears 22,000 undercount” published on 27 March 2011. She said the latter reported how Muslims in Wales were being encouraged to tick the religion box in the census.

She concluded by saying she did not agree that the reports highlighted were biased or an attempt to manipulate how people completed the census form. She said that she believed they were reported fairly and accurately, delivering audiences with relevant information to enable them to make up their own minds about the issue. Appeal to the Trust The complainant emailed the BBC Trust on 20 October 2011. He said that he was not happy with the conclusions of the Head of Editorial Compliance and Accountability, BBC News. He had also contacted the BBC Trust on 22 September 2011 explaining that he was not happy with the decision of the ECU not to take his complaint.

The Trust‟s Head of Editorial Standards first wrote to the complainant on 11 October 2011 regarding his point about the ECU not taking his complaint. The complainant challenged this decision in a letter of 26 October. The Head of Editorial Standards then wrote again on 11 January 2012 and noted that in writing her letter of 11 October she had not yet received his appeal against the decision of the Head of Editorial Compliance and Accountability, BBC News and was therefore writing again to provide him with a further

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response. She was clear, however, that her decision was substantively the same – that the appeal did not have a reasonable prospect of success. The Head of Editorial Standards explained that the Trust does not adjudicate on every appeal that is brought to it, and part of her role is to check that appeals qualify for consideration by the Trust (or one of its complaints committees) under the Complaints Framework. The Head of Editorial Standards said that she had read the relevant correspondence and considered that the appeal did not have a reasonable prospect of success and should not proceed to the Trust‟s Editorial Standards Committee. She said that she understood this was a matter about which the complainant felt very strongly, and noted the points made in his previous correspondence and in rebuttal to the Head of Accountability in his appeal.

However, she said that she was satisfied that the Head of Accountability for BBC News did carry out an investigation into the complaint and provided an analysis of why she believed that these reports were not biased or an attempt to manipulate how people completed the census form.

In terms of giving the British Humanist Association (BHA) more coverage, the Head of Accountability explained that stories the complainant had highlighted were:

“…reports about a question on the census form, its wording and the specific initiative by the BHA – its high-profile campaign. Had the Church of England, or the Roman Catholic Church, or Hindu organizations launched similar campaigns, then the BBC may well have considered those as “top-line” news stories too, and might have treated them similarly…

“I am satisfied that due prominence was given to the BHA and its campaign and that due weight was given to those directly able to respond to the question raised by the campaign.”

The Head of Editorial Standards noted that in terms of other religions receiving no representation, the Head of Accountability provided the complainant with details of other online stories emanating from other faiths. She also emphasised that due impartiality did not require that every viewpoint is represented in every story. However, she noted that the Head of Accountability specifically mentioned a story which included a Muslim viewpoint suggesting that people of this faith should record their religion on the census form.

The Head of Editorial Standards said that she should also be clear that there was no “formula” for working out how much coverage a faith should receive dependent on the number of believers – the amount of coverage given to any subject is an editorial decision based on a number of factors but always bearing in mind the BBC‟s Editorial Guidelines.

Having reviewed the Head of Accountability‟s replies at Stage 2 and having read the articles anew bearing in mind the complainant‟s appeal of 20 October 2011 the Head of Editorial Standards did not consider there was a reasonable prospect of success for his appeal on this point.

The complainant responded on 25 January 2012 asking the Trustees to review the decision and alleging that the Head of Editorial Standards had not acted impartially in reviewing his appeal. He set out again that he felt BBC staff were not impartial and were encouraging atheism. He asked again for details of what formula the BBC was working to in allocating coverage.

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The Committee’s decision The Committee was provided with the complainant‟s appeal to the Trust and subsequent clarification, the second response from the Head of Editorial Standards, and the complainant‟s letter asking the Committee to review the Head of Editorial Standards‟ decision. The Committee was also provided with the final Stage 2 finding from the Head of Editorial Compliance and Accountability.

The Committee noted that it had also been provided with paperwork for the consideration of a decision to apply the expedited complaints procedure to this complainant. The Committee was clear that its consideration of whether to take this appeal was not dependent on its consideration of the application of the expedited procedure, which it would discuss separately.

The Committee noted the complainant‟s allegation that the BBC was attempting to influence the outcome of the 2011 census, and it noted the examples of BBC Online articles which he had cited to support this allegation, in particular articles covering the British Humanist Association. The Committee also noted the detailed response that the Head of Editorial Compliance and Accountability had given at Stage 2.

The Committee was satisfied that the BBC had demonstrated to the complainant that the UK census had been covered from a range of viewpoints and that there is no obligation in the Guidelines for every viewpoint to be covered in every story. The Committee also agreed that there was not a set formula for working out how much coverage a faith should receive, and the amount of coverage given to any subject is an editorial decision based on a number of factors but always bearing in mind the BBC‟s Editorial Guidelines.

The Committee considered that the articles cited by the complainant demonstrated the proper exercise of editorial discretion in the way they covered the Humanist campaign. Overall, the Committee agreed that the complaint did not have a reasonable prospect of success on appeal.

The Committee noted the complainant‟s repeated allegations that BBC staff had not considered his complaint impartially; however, it did not agree that the evidence supported this conclusion.

The Committee therefore decided this appeal did not qualify to proceed for consideration.

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Money Box, BBC Radio 4, 30 April 2011 The complainant appealed to the Editorial Standards Committee following the decision of the Head of Editorial Standards that the complainant‟s appeal did not qualify to proceed for consideration by the Committee. The complaint Stage 1 The complainant contacted the BBC to complain that an edition of Money Box, which dealt with the subject of final salary pension schemes, was biased. He said that the presenter did not challenge the comments of a pension consultant who considered final salary schemes to be a “perk”. He said that the programme had called for defined contribution schemes to replace final salary pensions without examining the implications for pensioners.

BBC Audience Services replied on 26 May 2011, saying that the aim of the programme was to explore why this type of pension scheme had become unpopular with employers. It sought the opinions of a number of people connected with the issue and aimed to provide a forum for debate, enabling listeners to make up their own minds.

On 10 June 2011 the complainant replied, reiterating that he felt the programme was one-sided and that it did not feature all significant views on the subject.

BBC Audience Services replied again, apologising for the delay in responding and saying that they had consulted the Editor of Money Box who had explained that the programme regularly featured representations from pensioners and trades unionists. The reply said that a recent “pensions special” had featured Unison, but, whereas that discussion partially focused on the public sector where 60% of workers are in trades unions:

“This discussion solely focused on the private sector where only 14% of workers are in trades unions. This clearly makes a contribution from a trade unionist or the pensioners‟ organisation set up by the trades unions less relevant.”

Nonetheless the programme did feature a pensioners‟ advocate.

The Editor rejected the suggestions of imbalance:

“It was not biased against final salary pension schemes. The programme tried to look at why these schemes have become increasingly hard to afford and why these schemes are closing and being curtailed in large numbers.”

He said that the programme explored issues “both legislative and societal” that had led to the current state of final salary schemes.

Stage 2

On 7 October 2011 the complainant wrote to the BBC‟s Editorial Complaints Unit (ECU) quoting from the BBC‟s Editorial Values (1.2.6), which commit the BBC to “provide a comprehensive forum for public debate”.

He said that the programme was presented as a public debate, therefore a comprehensive forum had to be provided; instead he felt that the contributors all took the same position. He said that no serious consideration was given to the consequences for

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individuals of the closure of the schemes. He felt that the pensioners‟ advocate featured in the programme “…was left out of the general discussion at the end of the programme”.

The complainant said that increasing life expectancy was given as a reason for the closure of final salary schemes but the credibility of future projections was not challenged. In particular he said that the presenter did not pick up on the comments of actuary Ronnie Bowie, who qualified his earlier views on rising life expectancy with a mention of the rising levels of obesity and the impact this may have on length of life.

The complainant felt the BBC‟s Editorial Guidelines on impartiality (section 4.4.18 on Contentious Views and Possible Offence), had been breached.

The ECU replied, noting that the complainant had referred to the BBC‟s Editorial Values in his letter of complaint, and explained:

“This section reflects the BBC‟s broad aims, values and aspirations whereas the subsequent sections of the guidelines provide the specific editorial standards that programme makers are expected to meet when producing content broadcast or published by the BBC. I therefore believe it is appropriate to consider your complaint against the relevant sections I have outlined above. I note that you have also referred to Section 4.4.18 (Contentious Views and Possible Offence). This guideline is intended to ensure that those expressing contentious views or those with the potential to cause serious offence are appropriately challenged and tested. I will therefore have to form a judgement as to whether the views expressed in the programme could reasonably be considered contentious.”

The ECU then wrote with the outcome of its investigation. The ECU said that the choice of programme topic was a matter for programme makers. The treatment of that topic became a matter of concern to the ECU if it led to a potential breach of editorial standards, for example on grounds of inaccuracy or unfairness.

The ECU said that the scope of the programme was clearly established at the start by the presenter:

“Final salary pension schemes are dead. That‟s the general consensus of a dozen people we‟ve spoken to in the last couple of weeks, and today we‟re exploring that idea in a special Money Box….”

And it noted that the presenter went on to say:

“Final salary pension schemes have come under huge pressures. Four out of five are closed to new members of staff and many are now closed completely.”

The ECU therefore believed the remit of the programme was clear: that it set out to explore the premise that defined benefit schemes had come under huge pressures and were proving increasingly unsustainable. The ECU appreciated that the complainant felt the programme should have considered other, related, aspects of the pension debate such as the social policy implications or the consequences for individuals, but it was reasonable for the programme to limit discussion to those issues set out at the start of the programme.

The ECU went on to consider whether the programme achieved the requirements for due impartiality in relation to the specific subject matter under discussion. It said that Money Box had contacted a number of experts, all of whom were pessimistic about the future of final salary schemes. The programme included contributions from a wide range of people

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with knowledge and expertise of the pensions business. The contributors were united in their opinion that final salary schemes were no longer sustainable. The ECU therefore considered it reasonable for the programme to reflect the broad consensus of informed experts. Whilst some organisations oppose plans to close or restrict access to final salary pension schemes, their opposition did not negate the broad consensus that final salary schemes were unlikely to survive in their current form:

“I agree that the view of the unions could have been included in this programme and that would have given listeners an alternative perspective. However I do not believe the omission of this perspective led to a lack of balance bearing in mind the broad consensus on this issue.”

Finally the ECU addressed the complaint that the presenter did not rigorously test contentious views expressed by the contributors. It said that the contributors accurately reflected the prevailing consensus of informed and expert opinion so their comments could not be said to be “contentious”. It noted that the Editorial Guidelines say that contentious views are those which “may cause serious offence to many in our audiences” and the ECU could see no basis for concluding that what was said in the programme could reasonably be judged in such terms.

Appeal to the BBC Trust

The complainant made his appeal on 17 November 2011. He said that the ECU disregarded his point about the editorial values. He said that a comprehensive debate was necessary, but was lacking in this programme. The complainant noted that the ECU found that the programme achieved impartiality by reflecting a broad consensus of expert views. However, the complainant noted that the Editor said that the programme had featured a pensioners‟ advocate. The complainant felt these views were contradictory.

The complainant believed the ECU had ignored the presenter‟s failure to ask questions about the prediction that life expectancy is ever increasing. He also contested the ECU‟s conclusion that views expressed by the programme‟s contributors would have been unlikely to cause serious offence.

The Trust‟s Head of Editorial Standards replied to the complainant, explaining that the Trust does not adjudicate on every appeal that is brought to it, and part of her role is to check that appeals qualify for consideration by the Trust (or one of its complaints committees) under the Complaints Framework. The Head of Editorial Standards said that she had read the relevant correspondence and listened to the programme in question and considered that the appeal did not have a reasonable prospect of success and should not proceed to the Trust‟s Editorial Standards Committee.

The Head of Editorial Standards explained that her role was to determine whether an appeal had engaged any of the BBC‟s Editorial Guidelines. She emphasised that it is not her function to decide whether there has been a breach of the Editorial Guidelines, as that is a matter for the ESC. If she determined that any of the Editorial Guidelines had been engaged, she would then consider whether the appeal raised a matter of substance, and in particular whether there was sufficient evidence to suggest that it had a reasonable prospect of success and there was a case for the BBC Executive to answer. In reaching her decision, she explained that she must give consideration to whether it was appropriate, proportionate and cost-effective for the Trust to address his appeal.

She noted that the complaint was that Money Box failed to reflect a comprehensive range of views and that it failed to sufficiently challenge contributors, including those expressing contentious views. She therefore determined that the Editorial Guidelines on impartiality

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were engaged, and noted that this guideline applies to output as a whole and not just to a single programme.

Editorial Values vs Editorial Guidelines

The Head of Editorial Standards noted that the complainant quoted from the BBC‟s Editorial Values. These are a summary of the BBC‟s ethical values and underpin its approach to programme production. She said there was no contradiction between the Editorial Values and the Editorial Guidelines, but the guidelines provide much greater detail on the standards expected of everyone making or presenting the BBC‟s output.

The ECU’s decision to consider the complaint against guidelines on impartiality

The Head of Editorial Standards noted that in assessing the complaint about “one- sidedness” the ECU considered the complainant‟s comments against the BBC‟s guidelines on impartiality. She noted the ECU‟s Complaints Director drew the complainant‟s attention to these specific guidelines and asked for his comments on the guidelines and on the summary of his complaint. She noted the complainant‟s reply made no mention of the guidelines that the Complaints Director proposed to follow.

The Head of Editorial Standards concluded that it was appropriate for the ECU to consider the complaint against the BBC‟s guidelines on impartiality rather than the broader Editorial Values. Furthermore, the ECU provided an explanation of their reasoning, and an opportunity for the complainant to comment on this decision.

The lack of a comprehensive debate

The Head of Editorial Standards noted that the programme set out its agenda in the presenter‟s opening script:

“Final salary pension schemes are dead. That‟s the general consensus of a dozen people we‟ve spoken to in the last couple of weeks, and today we‟re exploring that idea in a special Money Box for this Bank Holiday weekend… Over the last 40 years final salary pension schemes have come under huge pressures. Four out of five are closed to new members of staff and many are now closed completely.”

Whilst she appreciated that the complainant would have preferred the programme to consider the impact of the closure of defined benefit schemes on individuals, this was not the topic under consideration. Instead the programme chose to focus on whether these schemes were dead, and if so, why.

The Head of Editorial Standards noted that the programme went on to explore these factors:

“So what‟s gone wrong with these pensions that, after all, offered what we wanted: a small contribution from us to get a reasonable and guaranteed pension for life?”

She noted that the following factors were considered in the programme:

 phasing out of the cross subsidy from early leavers  inflation protection  retrospective changes to pension schemes  contribution holidays  abolition of tax credits paid to pension funds

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 an over-reliance on equities rather than other forms of investment  under-performance of the equities market  an over-confident attitude to risk amongst company directors  rising life expectancy  a failure of actuaries to predict the rise in life expectancy  pension protection legislation

The Head of Editorial Standards said that this section of the programme dealt with the history of the final pension scheme and featured a range of voices, including archive news footage of pensioners – one of whom had suffered from losing her pension rights due to the cross subsidy issue, another of whom was delighted by her new final salary pension. Historical perspective was also added by interviews with a senior actuary, the Director General of Saga, and an academic who was Director of the Pensions Institute at Cass Business School. The academic expressed his regret at the demise of the defined benefit scheme:

“Very sadly, in 10 or 15 years one of the great contributions that this country built up over 150 years to give reasonable pensions in retirement to workers related to the salaries just prior to retirement has come to an end in 15 years. It‟s tragic.”

The Head of Editorial Standards noted that, having explored the historical factors behind the decline of defined benefit schemes, the programme changed format into a studio debate “…to discuss if final salary pensions are dead”. This section of the programme featured three guests who were experts in the pensions field. She noted that all three believed that the final salary pension scheme had little or no future and this reflected the views of all of the experts contacted by the programme. The Head of Editorial Standards said that whilst the representative of Saga described herself on her website as “a champion for the rights of pensioners”, she too concluded that, “it‟s the end of final salary pension schemes”.

The Head of Editorial Standards did not believe there was evidence that the ECU finding was inconsistent with the comments of the programme editor. The editor responded to the complainant‟s charge that there was no representative from a trades union or the National Pensioners‟ Convention by explaining why he believed that their view was less pertinent to this debate, and by pointing out that a pensioners‟ advocate had been interviewed for the programme. The ECU concluded that a trade unionist may have provided an alternative perspective but their omission did not lead to a lack of balance due to the broad consensus amongst the experts.

Given this broad consensus, the Head of Editorial Standards did not believe that the appeal had a reasonable prospect of success on the grounds that the programme failed to achieve due impartiality by failing to include a comprehensive debate on the topic set out by the programme.

Failure to ask searching questions

The Head of Editorial Standards noted that the complainant said that the presenter failed to pick up on comments about the potential impact of obesity on life expectancy. The relevant section of the programme was quoted in her letter.

She said that the point of the comments appeared to be that, should increasing levels of obesity significantly counteract lengthening life expectancy, or should advances in medical science (which prolong life expectancy) slow, actuaries now have better “early warning systems” to enable them to react more quickly than in the past when actuaries relied on mortality tables.

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Given the evidence that the programme had already challenged the part played by actuaries in the decline of final salary schemes, the Head of Editorial Standards did not consider this a significant point that required further challenge at that stage of the programme. The impact of obesity was raised as an uncertainty that might affect life expectancy assumptions and she did not consider that the point needed to be pursued further in order to achieve due impartiality. She therefore did not consider that this point of appeal had a reasonable prospect of success.

Comments likely to cause serious offence

The Head of Editorial Standards set out that “contentious views” are defined in the BBC‟s Editorial Guidelines as those which “may cause serious offence to many in our audiences”, for instance relating to race or religion. There are strict referral procedures for interviewing people holding such views and “the potential for offence must be weighed against the public interest and any risk to the BBC‟s impartiality”. She noted what the pensions consultant had said in the programme:

“Pensions are simply a perk and the trouble is over the last 40 or 50 years we‟ve understated the cost of providing that pension, so it appears as though you get something for nothing.”

The Head of Editorial Standards said that employers have traditionally offered differing pension schemes, and the varying terms of these schemes have been one of a number of factors considered by employees when deciding which career opportunity to pursue, as part of an overall pay and benefits package.

She noted that, whilst the presenter might have picked up on this comment and asked whether occupational pensions were really a perk, a benefit or an entitlement, she did not believe there was sufficient evidence that such a comment would be likely to cause serious offence to many listeners in the sense that is meant by the guidelines.

Overall therefore the Head of Editorial Standards did not believe the appeal had a reasonable prospect of success.

The complainant requested that the Committee review the decision of the Head of Editorial Standards not to proceed with the appeal. In this response the complainant referred to a subsequent speech by the presenter, and raised a new point about a potential comparison between the treatment of employees‟ pensions and company directors‟ pensions. He questioned why an advocate was necessary to be featured on the programme if impartiality was otherwise achieved. He reiterated his point that the presenter did not question further statements about future life expectancy. The complainant raised the issue of the definition of “perk” and the offensiveness of the statement made about “perks”. The Committee’s decision The Committee was provided with the complainant‟s appeal to the Trust, the response from the Head of Editorial Standards and the complainant‟s letter asking the Committee to review the Head of Editorial Standards‟ decision. The Committee was also provided with the Stage 2 finding from the Editorial Complaints Unit and the programme in question.

The Committee noted the complainant‟s argument that the programme had been “one- sided” in its treatment of final salary scheme pensions in that it had not been comprehensive and had failed to challenge the contributors‟ views. However, the Committee agreed with the Head of Editorial Standards that the programme was justified

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in taking the approach it had (to look at whether final salary pension schemes were “dead” and, if so, why) which was clearly signposted in the programme. The Committee agreed that, given this signalled approach, and the general consensus of experts in the field, the programme had included an appropriate range of contributors. The Committee also noted the complainant‟s view that the presenter did not ask more searching questions on statements made about future life expectancy, such as the potential impact of obesity. The Committee agreed with the Head of Editorial Standards that the programme did not need to pursue these points any further than it had already done in order to achieve due impartiality. The Committee agreed that there was not a reasonable prospect of success for an appeal on the grounds that the programme had failed to achieve due impartiality by failing to include a comprehensive debate.

The Committee agreed with the Head of Editorial Standards that there is no contradiction between the Editorial Values and the Editorial Guidelines, which provide much greater detail on the standards expected of everyone making or presenting the BBC‟s output.

The Committee noted that, in his response to the Head of Editorial Standards‟ decision, the complainant had raised some new points which had not previously been raised with the BBC Executive. The Committee agreed that it would not take these into account because they should have been raised with the BBC Executive in the first instance. The Committee also noted that the complainant had referred to a speech made by the presenter of the programme a few days after it was broadcast. The Committee was clear that its duty in this case was to consider the material that was broadcast by the BBC and not comments made by the presenter in another context.

The Committee also noted the complainant‟s view that comments made on the programme were offensive and should have been considered against the relevant guidelines on offence. The Committee agreed with the Head of Editorial Standards that the views expressed in this discussion of pensions were not likely to cause serious offence to many listeners in the sense that is meant by the guidelines.

The Committee considered that, while the programme had not looked at the impact of the closure of defined benefit schemes on individuals, which the complainant would have liked, it was within the creative remit of the BBC to make the programme that it had made. There was no requirement in the Editorial Guidelines for the issues which the complainant had raised to be included in the programme. The Committee‟s view, having listened to the programme and considered the points made by the complainant and the BBC, was that there was no reasonable prospect of success for this complaint on appeal.

The Committee therefore decided this appeal did not qualify to proceed for consideration.

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Wonders of the Universe, BBC Two, 6 March 2011 The complainant appealed to the Editorial Standards Committee following the decision of the Head of Editorial Standards that the complainant‟s appeal did not qualify to proceed for consideration by the Committee. The complaint Stage 1 The complainant wrote to the BBC saying that it had inaccurately described “entropy” as “disorder”, pointing out there had been a long-standing campaign to correct science textbooks which promoted the “disorder fallacy”.

BBC Audience Services replied apologising for the delay. It acknowledged the campaign to which the complainant referred, but said “there will always be differing opinion on any scientific matter”. The response explained the reference in the programme to order and disorder “was merely a vehicle to try and explain the overall concept”:

“Professor Cox was talking in the context of thermodynamics and was expanding into the premise of entropy being expressed in terms of ultimate randomness.”

The complainant replied, and in September 2011 received a response from the programme‟s Executive Producer. He again apologised for the delays experienced. The Executive Producer said neither he nor his colleagues had been aware about the campaign to alter the characterisation of thermodynamics and that if the subject was revisited this would be given due consideration. Nevertheless, the programme stood by its description of entropy, saying the use of the term “disorder” in the context was consistent with its use throughout the vast majority of science. He did not accept the complainant‟s allegation that the presenter and the programme‟s advisers had continued to “side with the Creationists”.

In response, the complainant said the use of a sand castle in a description of entropy, and the use of the terms “order” and “disorder” was misleading. The complainant said that this confirmed the Creationist view “that the order in a sand castle can only occur if some intelligent agency creates it”. He said that Creationists claim that their conclusions about the impossibility of evolution are “supported by many eminent scientists who confirm that the Second Law of Thermodynamics is about a Universal tendency towards disorder”.

Stage 2

The complainant escalated his complaint to the Editorial Complaints Unit at the second stage of the complaints process. He repeated his claim that the programme implied support for the Creationist view and he argued that the sand castle example was inaccurate as entropy is related to the dispersal of energy: the sand castle and the pile of sand were at the same temperature so would have the same entropic value.

The ECU did not uphold the complaint saying:

 while some scientists no longer use it, the concept of order and disorder in thermodynamics remains in widespread use in science in contexts similar to that used in the programme

 the sand castle illustration was arguably flawed and not strictly accurate, in that it was incorrect that the sand castle had low entropy and the pile of sand high entropy – but in the context of the analogy the programme was attempting to convey (how entropy

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change takes place and what effect it has on our world) it would not have seriously misled the audience

 the sand castle example explained the notion that it is overwhelmingly more likely that everything is moving towards a state of equilibrium, that the world does not run in reverse (explaining the central concept of the programme, the arrow of time)

 the line in the programme, “the second law says that everything tends from order to disorder”, did not imply a logical link to the view put forward by Creationists

 it was a scientific programme presented by an eminent physicist and tackled its subject matter from a scientific perspective; evolution and intelligent design were not mentioned at any stage; religion and any concepts of a supreme being or a deity formed no part of the programme either overtly or covertly.

Appeal to the BBC Trust

The complainant appealed to the Trust stating that the programme was confusing and misleading. The misrepresentation of the laws of physics in the sand castle example led logically to the view held by Creationists, namely that:

“If everything in the Universe tends to disorder then the evolution of life is prohibited by the Second Law of Thermodynamics. Consequently, science proves that only God can create the order necessary for life.”

The Trust‟s Head of Editorial Standards replied to the complainant, explaining that the Trust does not adjudicate on every appeal that is brought to it, and part of her role is to check that appeals qualify for consideration by the Trust (or one of its complaints committees) under the Complaints Framework. The Head of Editorial Standards said that she had read the relevant correspondence and considered that the appeal did not have a reasonable prospect of success and should not proceed to the Trust‟s Editorial Standards Committee.

The Head of Editorial Standards explained that her role was to determine whether an appeal had engaged any of the BBC‟s Editorial Guidelines. She emphasised that it is not her function to decide whether there has been a breach of the Editorial Guidelines, as that is a matter for the ESC. If she determined that any of the Editorial Guidelines had been engaged, she would then consider whether the appeal raised a matter of substance, and in particular whether there was sufficient evidence to suggest that it had a reasonable prospect of success and there was a case for the BBC Executive to answer. In reaching her decision, she explained that she must give consideration to whether it was appropriate, proportionate and cost-effective for the Trust to address his appeal.

She explained that the appeal engaged the Accuracy guideline, and then explained why she had decided the appeal should not proceed.

Use of the concepts of “order” and “disorder” in relation to entropy

The Head of Editorial Standards said that she did not accept that the programme was wrong to refer to the concepts of “order” and “disorder” in relation to entropy. She accepted that there was an ongoing debate amongst scientists about their appropriateness in this context. Nevertheless she noted the terms were still in use and in

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the research undertaken for this appeal there did not appear to be a consensus amongst the experts about the words‟ acceptability. She was mindful that it is not the BBC‟s role to prescribe acceptable usage, rather it is to deliver output that is well sourced, based on sound evidence and presented in clear precise language. In her view it had met those requirements.

She noted that early in the correspondence the Executive Producer had given assurance that now that he was aware of the debate to which the complainant referred, he would give the issue due consideration in any future coverage of the topic. It would be wholly wrong for the BBC to ban the usage of a word or a concept because a particular group, in this case those who take the Creationists‟ view of the world, have chosen to promote their viewpoint in a particular way.

In relation to whether in this instance the framing of the concepts misled the audience, the Head of Editorial Standards did not believe it did. She said that this was a programme designed for a general “entry level” audience. She considered the argument that the words “order” and “disorder” mean one thing to scientists and something entirely different to the man in the street, and that by using them here the audience would reach the conclusion that the Creationist views on evolution are proven. However, she agreed with the ECU that the way the concept was presented did not imply a logical link to their view. Moreover, she noted it was important to consider the section about entropy in the context of the whole programme, which discussed the ultimate fate of the entire universe and used other examples to explain the concepts of the “arrow of time”: the audience‟s understanding of the topic did not rely solely on their interpretation of the meaning of “order” and “disorder”.

Finally, she thought that an audience prepared to sit down and watch an hour long programme on this topic was likely to be able to appreciate the words are being used to mean something rather different from a “messy bedroom”. While a lay person might not instantly grasp the full meaning of order, disorder, chaos and other words from everyday usage that have been appropriated for use in science, they are nevertheless capable of appreciating the changed context.

Therefore she did not believe this aspect of the complaint had a reasonable prospect of success were it to proceed to appeal.

Whether the sand castle example was misleading

In considering the issues, the Head of Editorial Standards was conscious that there had already been an acknowledgement at Stage 2 by the ECU Complaints Director that the way in which the sand castle example was framed was potentially misleading in relation to understanding the concept of entropy:

“.. during the course of my investigation I have become increasingly aware that there are drawbacks to the illustration that Professor Cox used; for example, I am more than willing to accept that when he stated that the sand castle has low entropy and the pile of sand has high entropy that was incorrect.”

The Head of Editorial Standards noted that there is no requirement under the Editorial Guidelines that BBC output maintains literal accuracy, rather programme makers are required to demonstrate due accuracy. So the issue would be whether the audience would have been seriously misled. The ECU concluded not; that in its view the audience were being asked to consider how entropy change takes place and what effect it has on our world and the universe as a whole:

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“…(there is a possibility that) viewers with limited or no knowledge of thermodynamics or entropy change would watch the programme and take away the basic message that these laws explain why time only runs in one direction. They might understand that the second law of thermodynamics explains why it is overwhelmingly more likely or more probable that everything is moving towards a state of equilibrium, as illustrated by the break down of the sand castle or indeed ice breaking off from a glacier.”

The Head of Editorial Standards agreed with the ECU that the broad concept being communicated by the presenter was that of time not being capable of being reversed. So whilst, like the ECU, she had some sympathy with the complainant‟s frustration that the sand castle example was not ideal in either concept or execution, it is the overall impression viewers are likely to be left with which she had to consider: would they have been confused? She did not think that would be the case in the context of the programme, and therefore the sand castle explanation was not in her opinion materially misleading. She therefore did not think this complaint had a reasonable prospect of success were it to proceed to appeal.

Whether the presenter appeared to offer support for the notion of intelligent design

The Head of Editorial Standards said she did not have much to add to the points made by the ECU at Stage 2. She noted there was no mention in the programme of Creationism, intelligent design or anything else which would suggest to viewers that the programme promoted a particular viewpoint. The programme was about something different altogether from the theory of evolution, it discussed the ultimate fate of the entire universe, not just that of mankind and mankind‟s time on earth. The Head of Editorial Standards referred the complainant to the ECU‟s comments:

“I would take issue with your conclusion that there is somehow a logical and faultless link between a single line in what Professor Cox said (“the second law says that everything tends from order to disorder”) and the view put forward by Creationists. It seems to me that viewers would have to make a considerable number of (erroneous) assumptions above and beyond what was said in the programme to reach the conclusion that Professor Cox was saying that evolution was just a theory that cannot be proved and therefore the Creationists must be right.”

The Head of Editorial Standards noted the complainant‟s argument that the imperfect example of the sand castle tended in particular towards support for the theory of intelligent design. However, considering that the programme was not about creation and did not offer any thoughts on that subject, she did not conclude that the Creationist view would prevail.

Overall therefore the Head of Editorial Standards did not think the appeal had a reasonable prospect of success and she said that she did not propose to put it before the Editorial Standards Committee.

The complainant requested that the Committee review the decision of the Head of Editorial Standards not to proceed with the appeal. He reiterated his views that the programme was wrong to use the terms “order” and “disorder” in its explanation of the science of entropy and that used in this manner the programme supported the Creationist view. The complainant said the script could have gone into greater detail about what it meant by “everything tends from order to disorder” in order to make clear what this means in a scientific context.

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The Committee’s decision The Committee was provided with the complainant‟s appeal to the Trust, the response from the Head of Editorial Standards and the complainant‟s letter asking the Committee to review the Head of Editorial Standards‟ decision. The Committee was also provided with the Stage 2 finding from the Editorial Complaints Unit and the programme in question.

The Committee noted the complainant‟s argument that, in using the terms “order” and “disorder”, and by illustrating entropy using the example of a sand castle and a pile of sand, the programme had been inaccurate. The Committee also noted the complainant‟s argument that this, together with the language used by the programme to describe the Second Law of Thermodynamics, could be misused by Creationists to argue a scientific basis for their opposition to the theory of evolution. The Committee also noted that the complainant had argued that the fact the programme was aimed at a lay audience meant there was more need for the terminology to be accurate, not less. The Committee was mindful that it was considering whether there was a case to say that the programme had been in breach of the Editorial Guidelines, which require “due accuracy”. The Committee agreed that it was reasonable to conclude that, given that the subject of the part of the programme in question was not evolution, it was not materially misleading to use the terms “order” and “disorder” even if experts used these terms with a highly specific meaning which differed from that in general use by the public. That is, viewers would not have been misled with regard to the point that the presenter was making about the flow of time. The Committee noted that the ECU had accepted that the way the sand castle had been framed was not accurate with regard to entropy. It also noted the complainant‟s point that, by extension, this would imply that the reference to order and disorder was also not accurate. The Committee noted that, while there is an ongoing debate amongst scientists about the use of these words in this context, the terms are still in use and in the research undertaken for this appeal request there did not appear to be a consensus amongst experts about the acceptability of the words.

While the Committee was sympathetic to the complainant‟s concerns about the potential for misunderstanding the Second Law of Thermodynamics and its misuse by Creationists, it did not consider that there was a reasonable prospect of success for this appeal on the grounds that the BBC‟s Editorial Guidelines on accuracy had been breached.

The Committee therefore decided this appeal did not qualify to proceed for consideration.

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BBC News identification of crime suspects The complainant appealed to the Editorial Standards Committee following the decision of the Head of Editorial Standards that the complainant‟s appeal did not qualify to proceed for consideration by the Committee. The complaint Stage 1 The complainant contacted BBC Audience Services on 26 July 2011 saying that the publication on BBC News of names and photographs of individuals who were merely being questioned about a crime was unfair. He felt that it could have a devastating effect on the life of the individual concerned. He referred to two recent cases – that of the nurse who was suspected of tampering with a saline solution in a hospital resulting in the deaths of patients, and that of the landlord questioned over the murder of Joanna Yeates.

The complainant received a reply from BBC Audience Services which stated that the BBC follows all laws and court instructions when dealing with such cases. The reply then said that, if the complainant felt that the BBC had broken the law, he should reply with details of the reports in question.

The complainant responded on 4 August 2011 and raised the question of the legality of such exposure and said that as it was repeated over many days and programmes, it was disingenuous to ask for specific examples. He referred also to several newspapers which were forced to pay damages to the landlord following their reporting of the case.

BBC Audience Services replied on 8 September 2011 apologising that the previous response had put the onus on the complainant to provide examples when he was, in fact, making a general point. They had consulted the UK News Editor who had explained that BBC News is mindful of the sensitivities around the identification of suspects and that they are careful to operate within the law. The UK News Editor explained that it is not illegal to report the identity of suspects but the BBC must, and does, act in accordance with the law as it relates to defamation and privacy and to the provisions of the Contempt of Court Act.

BBC Audience Services quoted the UK News Editor in their reply:

“BBC News always strives to strike the right balance between reporting significant and newsworthy developments – including arrests and charges – on serious criminal cases, and being fair to those arrested and charged. In the case of [the landlord], his arrest was a significant development in a case which had gripped the attention of our audiences. Our reporting was measured and fair, and stayed within the terms of the contempt and defamation laws, unlike the newspapers [the complainant] mentions who have had to pay damages because of some of the background material they published. The case of [the nurse] was slightly different in that she was initially charged with serious offences. (These charges have now been dropped.) But once again, BBC News reported this major development in a story of great concern and interest to the public with full attention to the laws of contempt and defamation.”

Stage 2

On 4 October 2011 the complainant wrote to the BBC Trust and was referred back to the Director, BBC News. When he wrote on 31 October 2011 he acknowledged that the 20 day period from his last reply from BBC Audience Services had expired, but asked that

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nevertheless his complaint be considered. He said that attempts to email the Director, BBC News, had been unsuccessful. He repeated his complaint and overriding concern – that the identification of innocent individuals with serious crimes could have an extremely adverse effect on their personal lives and would lead them to be identified in some people‟s minds as murderers. He said this point had been completely ignored in previous replies.

Following an exchange of correspondence with the Trust Unit, the Head of Editorial Compliance and Accountability, BBC News, replied on 21 November 2011.

In this letter she said that BBC News would not respond further to the complaint as contact had not been made within the 20 working day limit. She said that although the complainant stated that the email address given to him did not work, other complaints had been received through this address during this period. She added that if she had felt there was any merit in his complaint this lateness would have been overlooked. However, as the complainant had received a good answer from a senior News editor already, she would consider it a disproportionate use of BBC resources to give further consideration to the complaint.

Appeal to the BBC Trust

The complainant contacted the BBC Trust Unit, saying that the response from the Head of Editorial Compliance and Accountability, BBC News did not address his complaint satisfactorily. He also stressed that he had tried to contact BBC News within the 20 working day limit but that the email address had not worked. He said that the response from BBC Audience Services which the Head of Editorial Compliance and Accountability, BBC News considered to be a “good answer” was inadequate.

The Head of Editorial Standards responded to the appeal, explaining that she did not propose to take the appeal further as it was out of time. The complainant challenged this response and, at their meeting in January, the ESC noted that the complainant had contacted the BBC Trust within the time limit for escalating his complaint to Stage 2, although the Trust reply directing him to Stage 2 was not sent until after the deadline. The Committee disagreed with the decision of the Head of Editorial Standards and asked her to examine the substance of the appeal, in order to determine whether it should proceed to the Trust.

The Head of Editorial Standards wrote to the complainant again on 6 February 2012 addressing the substance of his complaint, that the identification of innocent individuals with serious crimes could have an adverse effect on their personal lives.

The Head of Editorial Standards referred first of all to the case of the landlord, who was questioned by police over the murder of Joanna Yeates. She noted that on 8 October 2011 an article appeared in the Financial Times relating to the landlord‟s case. This article examined at length the press coverage surrounding his arrest and included a long interview with the landlord himself. The article explained that he won damages from eight newspapers following the reporting of his arrest and that two of the newspapers were also prosecuted for breaching the Contempt of Court Act. The Head of Editorial Standards noted that at no point did the article or the landlord refer to the BBC or to its coverage of the case, nor had any action been taken against the BBC by the landlord or by the Crown Prosecution Service.

Regarding the case of the nurse, although she also had in the past been critical of newspaper coverage of her case, the Head of Editorial Standards could find no evidence

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that any criticism was ever made by her of the BBC‟s coverage following her arrest and subsequent charge.

The Head of Editorial Standards noted that the BBC‟s UK News Editor had explained that BBC News was mindful of the sensitivities around the identification of suspects and that they are careful to operate within the law. He explained that it is not illegal to report the identity of suspects but the BBC must and does act in accordance with the law as it relates to defamation and privacy and to the provisions of the Contempt of Court Act.

The Head of Editorial Standards said that she supported the view that it is important that BBC News be free to report major developments in a story which is of great concern and interest to the public, while remaining within the terms of contempt and defamation laws. She felt the complainant had not provided any precise examples of where he felt the BBC went too far in the reporting of these cases, and no evidence of law breaking or a lack of sensitivity by the BBC. She considered therefore that there was no reasonable prospect of the appeal being successful and that the matter should not proceed on appeal to the Trust.

The complainant requested that the Committee review the decision of the Head of Editorial Standards not to proceed with the appeal. He explained that he had provided examples but his concern was not restricted to these two cases. He asked for the Committee to consider his appeal. The Committee’s decision The Committee was provided with the complainant‟s appeal to the Trust, the response from the Head of Editorial Standards and the complainant‟s letter asking the Committee to review the Head of Editorial Standards‟ decision. The Committee was also provided with the final Stage 2 letter from the Head of Editorial Compliance and Accountability for BBC News.

The Committee noted that the complainant was concerned with the general practice of naming suspects in criminal cases before they had been convicted, and that he had cited two cases by way of example. The Committee noted the response from the UK News Editor, which explained that the BBC is mindful of the sensitivities around the identification of suspects and that it is careful to operate within the law. The Committee also noted that in the examples provided by the complainant no criticism had been levelled at the BBC by the people involved, although they had been critical of some newspaper coverage.

The Committee agreed that the concerns raised by the complainant were not Editorial Guideline matters. The Committee noted that the complainant had not identified specific content which could be tested against the Guidelines. The Committee agreed that therefore there was no reasonable prospect of success for this complaint on appeal.

The Committee therefore decided this appeal did not qualify to proceed for consideration.

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The World at One, BBC Radio 4, 27 December 2010 The complainant appealed to the Editorial Standards Committee following the decision of the Head of Editorial Standards that the complainant‟s appeal did not qualify to proceed for consideration by the Committee. The complaint Stage 1 The complainant wrote to the BBC regarding an interview with Conservative Party Deputy Chairman, Michael Fallon MP, broadcast on The World at One on 27 December 2010.

The complainant alleged that the interviewer, in pressing Mr Fallon to answer a question, ignored Mr Fallon's previous answer and “[asserted], in the form of a question that the MP supported the Liberal Democrat‟s candidacy. Which he had clearly not done”.

The complainant concluded by asking for a transcript of the interview in order to enable him to judge whether the questioning had been based on facts “known to the interviewer to be untrue”.

In reply, BBC Audience Services set out the context of the interview and maintained that Mr Fallon was given “ample time and space to clarify his own position” in which he clearly stated his support for the Conservative candidate.

The BBC response to the complaint was that, by pressing on this issue, the interviewer was merely trying to clarify whether or not Mr Cameron‟s implied support for the Liberal Democrat candidate did, or did not, represent official Conservative policy. The BBC said that, in the subsequent part of the interview, which the complainant thought continued in a similar vein, the presenter sought to establish whether Mr Cameron‟s remarks presaged a future electoral pact between the two coalition partners at the next election. The BBC said that, again, Mr Fallon was “…given ample time to make his perspectives clear” and by way of explanation, added “It is the interviewer‟s job to press interviewees when deemed appropriate”.

In response, the complainant quoted from the supplied transcript and alleged that the interviewer had made an untruthful comment, namely that Michael Fallon and the Conservatives wanted the Liberal Democrat candidate to win.

The complainant cited various BBC Guidelines on Accuracy, Misleading Audiences, Impartiality, Diversity of Opinion and Due Impartiality and concluded that overall the interview “did not comply with the BBC‟s normally high standards [as set out in the extracts from the Guidelines]”.

On the same day, the complainant wrote to the BBC‟s Editorial Complaints Unit (ECU) to summarise the issues he had raised in his reply. He suggested that his complaint raised questions about “the BBC‟s duty, as a public broadcaster, to act in accordance with the highest possible standards of fairness and truthfulness” which he said the interviewer had failed to meet by the manner of his questioning. The complainant argued that, “it is quite unfair under the guise of robustness or of „pressing interviewees‟ to totally misrepresent the comments of the person being interviewed”.

The complainant received a substantive reply from the Editor of The World at One. He began by apologising for the time his response had taken. He provided the complainant with a full transcript of the interview and said that he believed the full transcript showed

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that the interviewer was not “making an untruthful comment” about Mr Fallon, as claimed in the complaint:

“[The interviewer] was clear in his interview that he was quoting the Prime Minister‟s comment earlier that month when he had wished his coalition partners well…

“…the Prime Minister‟s statement had prompted considerable comment in the media”

The Editor sent the complainant extracts from the Daily Telegraph, The Times and the Financial Times, to illustrate the point. He said that the interviewer‟s questioning was fair, impartial and professional, and that Mr Fallon had been given “a clear opportunity to set out his position”. He concluded by saying that in the context of the wide speculation about the Prime Minister‟s own position, the interviewer would have “been doing the audience a disservice not to press him further”.

Stage 2

The complainant wrote again to the ECU. He contested the BBC‟s assertion that the interviewer‟s questioning did not involve “an untruthful comment” and quoted the interviewer‟s question in support of this allegation:

“It‟s a very rum position to be in isn‟t it? Having your own candidate, whom of course you have to come out and say publicly you support, but actually wanting the Liberal Democrats to win.”

The complainant said that the newspaper comments about Mr Cameron‟s remarks were irrelevant.

The complainant said it would not have been clear to listeners that the interviewer‟s references to wanting the Liberal Democrats to win related to comments made by Mr Cameron not Mr Fallon. He said that the interviewer implied, not just once but on a number of occasions, that Mr Fallon supported the Liberal Democrat candidate.

The complainant summarised his complaint saying that the piece was misleading, failed to meet the BBC‟s own standards and suggested that there was a tendency among BBC interviewers to interpret “robust interviewing” as “a licence to mislead and indeed tell untruths”.

An ECU Complaints Director considered the complaint in relation to the Editorial Guidelines on Accuracy, Impartiality and Politics.

The Complaints Director said that he had listened to the programme and discussed the complainant‟s concerns with the programme-makers. He observed that the interviewer had begun the relevant section of the interview by asking, “Who would you like to see win the Oldham by-election?” In the Complaints Director‟s opinion this was “a legitimate point to raise in the circumstances”. The Complaints Director noted that the by-election was the first major test of how the Conservatives and Liberal Democrats intended to campaign against each other while working together in coalition, and the fact that the Prime Minister had also signalled a different approach to campaigning when he said “we wish our opponents well”. The Complaints Director also noted that Mr Fallon's response to the question was an unequivocal statement of support for the Conservative candidate.

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The Complaints Director then observed that the interviewer “chose to push the issue further”. In his view, given the context of the interview, this seemed to him to be “…a reasonable position to take in a political interview of this kind where listeners are used to interviewers challenging contributors rather than simply taking their responses at face value”.

The Complaints Director said that he did not think listeners would have understood the interviewer to be saying it was a matter of uncontested fact that the Conservatives wanted the Liberal Democrats to win the by-election. He said that it was clear from the exchanges that the interviewer was putting forward a premise in order to explore the nature of the relationship between the coalition partners. The interviewer was asking whether there was a difference between what the party was saying publicly and what members might be saying privately. The Complaints Director said this was an entirely legitimate line of questioning bearing in mind Mr Cameron‟s comments and reports from the Westminster village that high-ranking Conservative ministers were increasingly open to some kind of electoral pact in the future.

The Complaints Director said that it was clear that Mr Fallon was given ample opportunity to reject the premise put forward by the interviewer on more than one occasion, and this would have further prevented any possibility that listeners would have been misled.

The Complaints Director concluded that the interviewer‟s questioning was not inaccurate and the audience would not have been given a misleading impression of the Conservative position.

The Complaints Director also said he did not agree that the interviewer‟s approach lacked the necessary impartiality. The Complaints Director said that the Editorial Guidelines allow journalists to examine and challenge the views of the various political parties as part of the democratic debate. He said that this approach is well understood by the audience, particularly for programmes which regularly interview politicians.

The Complaints Director did not uphold the complaint.

Appeal to the BBC Trust

The complainant escalated his complaint to the BBC Trust, stating that he wished the whole of his correspondence to be used as the grounds of his appeal.

The Trust‟s Senior Editorial Strategy Adviser replied on behalf of the Head of Editorial Standards.

She explained that the Trust does not adjudicate on every appeal that is brought to it, and part of the role of the Head of Editorial Standards is to check that appeals qualify for consideration by the Trust (or one of its complaints committees) under the Complaints Framework. The Head of Editorial Standards had read the relevant correspondence and transcripts of the items in question and considered that the appeal did not have a reasonable prospect of success and should not proceed to the Trust‟s Editorial Standards Committee.

The Senior Editorial Adviser said that the Head of Editorial Standards believed that the complainant had been provided with a clear and reasonable explanation for the interviewer‟s line of questioning. She said that, while the complainant asserted this was a matter of an interviewer telling an untruth, the Head of Editorial Standards wished to be clear that she did not accept his interpretation. She said that it came down to the right of an interviewer not to always accept at face value everything that an interviewee says. On

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behalf of the listener, he or she has an obligation to challenge assertions made and probe for further information.

The Head of Editorial Standards also observed that, as highlighted in earlier correspondence, The World at One was far from alone among media outlets in seeing Mr Cameron‟s statement as an important issue to explore.

The Head of Editorial Standards therefore did not feel that the appeal would have a reasonable prospect of success with the ESC and did not propose to put it to the Committee.

The complainant requested that the Committee review the decision of the Head of Editorial Standards not to proceed with the appeal. He submitted suggestions for improvements to the complaints process, and raised a number of points for the ESC‟s consideration.

The complainant was concerned that the “adherence to truth” was not achieved in the interview with Mr Fallon. He said that the guiding principle should be that of truth rather than the Editorial Guidelines, and that this complaint had not been answered. The complainant objected to the style of interview and referred to other examples, including a previous complaint he had made. The complainant said that politicians were treated differently from other interviewees and criticised what he described as the BBC‟s policy of adopting “the justifiable aggressive interview”.

The complainant also criticised the complaint process, in particular the procedure whereby “the Head of Editorial Standards anticipates the outcome of an appeal”. He said that this decision should be made by Trustees. The Committee’s decision The Committee was provided with the complainant‟s appeal to the Trust, the response from the Senior Editorial Strategy Adviser on behalf of the Head of Editorial Standards and the complainant‟s letter asking the Committee to review the Head of Editorial Standards‟ decision. The Committee was also provided with the Stage 2 finding from the Editorial Complaints Unit and the item in question.

The Committee noted that the complainant had said the basis of his complaint was the importance of the truth, and he had emphasised that it was about the specific truth of what had been said by the interviewer. The Committee was mindful that the pursuit of truth is a fundamental journalistic principle and is embodied in the BBC‟s Editorial Values. It agreed that the purpose of the questioning was to establish the wider truth regarding the Conservative Party‟s attitude to its coalition partners. While the complaint was to be judged against the requirements of the Editorial Guidelines (particularly those on accuracy and impartiality), the Committee saw no contradiction with the complainant's emphasis on the “truth”. Having listened to the interview and considered the points made by the complainant, and by the BBC in response, the Committee agreed that the questions put by the interviewer in this case raised no issues with regard to the Editorial Guidelines.

The Committee noted the complainant‟s detailed questions regarding the style adopted by BBC journalists when interviewing politicians. The Committee agreed that the Editorial Guidelines allow journalists to examine and challenge the views of the various political parties as part of the democratic debate. The Committee agreed that this approach is well understood by the audience, particularly for programmes which regularly interview politicians.

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The Committee was satisfied that, with regard to the specific interview which formed the basis of this complaint, there was no case to answer with regard to a breach of the Editorial Guidelines. The Committee agreed that there was no reasonable prospect of success for this complaint on appeal.

The Committee noted that the complainant had referred to previous closed complaints (which had not been upheld) and it agreed that these were not relevant to its consideration of whether to hear this complaint on appeal.

Turning to the complainant‟s criticism of the complaint process, in particular the procedure whereby “the Head of Editorial Standards anticipates the outcome of an appeal”, the Committee was mindful that the published procedure for appeals to the Trust states:

3.10 Your appeal must meet the following criteria:

(d) Your appeal must raise a matter of substance – in particular, that, in the opinion of the Trust, there is sufficient evidence to suggest that the appeal has a reasonable prospect of success and there is a case for the BBC Executive to answer. Consideration will also be given to whether it is appropriate, proportionate and cost-effective for the Trust to address an appeal. For example, given the distinct roles and responsibilities of the Trust and the Executive, the Trust will not usually take appeals relating to day to day operational issues.

And

3.26 The Complaints Manager or Head of Editorial Standards will write to you if the Head of Editorial Standards thinks your appeal does not qualify, and explain the reasons for that decision. If you disagree with that decision then you may appeal it to the Editorial Standards Committee (ESC). The Trust is the final arbiter if any question arises as to whether an appeal is for the Trust to determine or not.

The Committee agreed that in considering whether the complainant‟s appeal had a reasonable prospect of success, the Head of Editorial Standards was fulfilling her normal duties as set out in the editorial appeals procedure.

The Committee therefore decided this appeal did not qualify to proceed for consideration.

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BBC Online Hamas profiles The complainant appealed to the Editorial Standards Committee following the decision of the Head of Editorial Standards that the complainant‟s appeal did not qualify to proceed for consideration by the Committee. The complaint Stage 1 The complainant wrote to BBC Audience Services on 11 July 2011 raising a number of issues regarding BBC Online articles, profiles of Hamas, Khaled Meshaal, Ismail Haniya and Mahmoud Zahhar.

Whilst the complainant raised a series of points specific to each article, his general complaint was that individually and collectively they painted a more benign portrait of Hamas and its leaders than is supported by the evidence, particularly in relation to the organisation‟s advocacy of violence and its position regarding recognition of Israel.

The complainant received a reply from the BBC Online Middle East Editor concerning his complaint about the Hamas profile. The response acknowledged that the article contained a serious omission in not explicitly stating that the Hamas charter committed the organisation to the destruction of Israel. The complainant was informed the article had been revised as a result of his complaint. The remainder of his complaint about the Hamas article was rejected; the Editor said that whilst parts of Hamas‟s rhetoric and charter were clearly hateful and anti-Semitic, there was also a “pragmatic, even „moderate‟” trend which discusses an accommodation of some kind with Israel. Suicide missions had ceased and there was evidence of some efforts to rein in rocket fire from Gaza. He concluded that overall the profile was a “fair and accurate reflection of Hamas in its range and complexity”.

The complainant responded to the BBC Online Middle East Editor disputing his conclusions. He also inquired about the absence of a reply to the remaining complaints he had lodged.

The BBC Online Middle East Editor responded, reiterating his original conclusion on the Hamas profile and stating that it reflected both the activities of Hamas as a terrorist group but also its wider role in Gaza and the West Bank, where it runs extensive social services and where it has significant support amongst Palestinians.

He said that the profile articles on the three leaders were no longer linked to from the BBC website and only appeared via a web search. He nevertheless stated that the profiles were fair and accurate and “reflect reasonably the words, policies and actions of Hamas and its leaders”.

The BBC Online Middle East Editor then addressed the complaint that the profiles did not reflect the real position of the three leaders in respect of their views on Israel. He said that the political leaders spoke in different terms to different audiences and at different times, and the profiles reflected this.

Following further correspondence, the BBC Online Middle East Editor also rejected the complaint that collectively the inaccuracies which the complainant alleged in the articles amounted to a breach of the guidelines on Impartiality.

Stage 2

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The complainant wrote to the Editorial Complaints Unit, reiterating his earlier points and adding additional detail in support of the allegation that the articles contained a number of inaccuracies and collectively amounted to a breach of the impartiality guidelines.

The Complaints Director said that the three articles about the Hamas leaders were clearly marked as last updated in 2006 and noted that the complaint did not concern their accuracy when last revised. In the ECU‟s view, where the time and date of publication or revision are made clear to the reader, there is not a requirement that the articles should be revisited to see if any subsequent events or pronouncements may have affected their accuracy or completeness. Consequently in the view of the ECU, the complaint of inaccuracy regarding more recent developments was not an issue for consideration under the guidelines.

With regard to the Hamas profile, the ECU said this was much more recent and was linked to from current output, and therefore the requirement remained that it should be kept accurate. However, the ECU did not uphold the following allegations of inaccuracy:

 omitting to state that Hamas opposes peace negotiations with Israel and calls for the slaughter of the Jews

Whilst this was not explicitly stated, in the view of the ECU Hamas‟s uncompromising attitude towards Israel was made clear and therefore the omission of that specific information was not a serious breach of editorial standards

 failure to detail recent terrorist activity by Hamas

The ECU said that its characterisation as a terrorist organisation by Israel, the US and the EU is referred to explicitly, as is its record of terrorist attacks, particularly suicide bombings; the omission of recent attacks would not mislead the reader as to the nature of Hamas

 the article describes some elements of the Hamas leadership as moderate when this is not the case

The ECU said it was a reasonable exercise of editorial judgement considering the evidence available.

Following the ECU finding, the complaint of bias across the range of articles was considered by the Head of Editorial Compliance and Accountability for News as it did not fall within the ECU‟s remit. She replied to the complainant, stating that there was no case to answer in this respect as the ECU had already determined that none of the individual articles breached the guidelines.

Appeal to the BBC Trust

The complainant appealed to the Editorial Standards Committee of the BBC Trust asking that it review the decisions made at Stage 2 not to uphold any aspect of his four complaints. He disagreed with the basis on which the ECU rejected his complaints of inaccuracy relating to the articles about the three Hamas leaders. He said that the stances of all of them had not changed since the profiles were updated and that his concern was about the accuracy at the time that he had made his complaint, when they were linked to from the then current country profile.

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The complainant cited quotations from speeches by Mahmoud Zahhar and Khaled Meshaal in support of his contention that the profiles were inaccurate at the date of last revision in 2006.

He also cited additional evidence in support of his contention that Hamas has an absolute commitment to the destruction of the State of Israel. The complainant maintained that Israeli and Palestinian claims and statements were not treated equally in the articles, with Palestinian statements reported as facts, and Israeli statements qualified.

He asked that each article be assessed separately and summarised the grounds of his appeal as being that all the profiles of the leaders of Hamas show them as willing to reconcile themselves to the continued existence of Israel and, in certain circumstances, to give up the armed struggle – they all show Hamas as being “less than totally committed to Israel‟s destruction”. He also said that the profile of Hamas underplays “the brutality of the regime and its commitment to violence”. He said that all the profiles are inaccurate and misleading and, taken together, they paint a more moderate picture of Hamas than is the case, and than Hamas paint to their own people, and are therefore biased.

The Trust‟s Head of Editorial Standards replied, explaining that the Trust does not adjudicate on every appeal that is brought to it, and part of her role is to check that appeals qualify for consideration by the Trust (or one of its complaints committees) under the Complaints Framework. The Head of Editorial Standards said that the relevant correspondence and articles in question had been reviewed by an independent editorial adviser. The Head of Editorial Standards said that she did not consider that the appeal had a reasonable prospect of success and therefore did not propose to put it before the Editorial Standards Committee on appeal.

The Head of Editorial Standards provided her reasons for concluding that there was no reasonable prospect of success for each of the complainant‟s points.

Complaint Point 1: The Hamas profile was inaccurate in that it failed to mention that the Hamas charter opposes peace negotiations with Israel and calls for the slaughter of the Jews.

The Head of Editorial Standards noted that all of the following statements are contained in the article; these are verbatim quotes:

 the group‟s short-term aim is to drive Israeli forces from the occupied territories  it also has a long-term aim of establishing an Islamic state on all of historic Palestine – most of which has been contained within Israel‟s borders since its creation in 1948  the founding document of Hamas commits the organisation to the destruction of Israel  it has launched attacks on Israeli troops and settlers in the Palestinian territories and against civilians in Israel  Hamas resisted all attempts to get it to sign up to previous agreements with Israel as well as to recognise Israel‟s legitimacy and to give up the armed struggle  it has remained steadfast to its pledge never to sign up to a permanent ceasefire while Israel occupies Palestinian territory and its troops are responsible for the deaths of Palestinians  Hamas‟s refusal to relinquish its demand for a right to return for Palestinian refugees threatens Israel‟s very existence as a Jewish state.

The Head of Editorial Standards considered the range of material supplied in support of the complainant‟s allegation but said that the omission of specific material was a matter

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for editorial judgement, and not a guideline issue unless the effect of that omission rendered the item inaccurate or misleading in some way. She said that the article was not obliged to mention the specific clause the complainant referred to from the Hamas Charter.

The Head of Editorial Standards noted that the article did not suggest that Hamas had made a commitment to recognise Israel. There was only a single mention of a possible deal, and it was framed in this context:

“Hamas resisted all efforts to get it to sign up to previous agreements with Israel, as well as to recognise Israel's legitimacy and to give up the armed struggle.

“It has remained steadfast to its pledge never to sign up to a permanent ceasefire while Israel occupies Palestinian territory and its troops are responsible for the deaths of Palestinians.

“It did, however, offer a 10-year truce in return for a complete Israeli withdrawal from territories occupied in 1967: the West Bank, Gaza Strip and East Jerusalem.

“But it has not relinquished its assertion that Palestinian refugees from 1948 should be allowed to return to homes in what has become Israel - a move that threatens Israel's very existence as a Jewish state.”

The Head of Editorial Standards considered that, while the article did not frame the sentiment in the way the complainant wished, it did make Hamas‟s hardline position clear in numerous other statements (as quoted above). The Head of Editorial Standards said she did not think readers would be left with the impression from the article that Hamas was ready to make a deal to recognise Israel. The Head of Editorial Standards noted that there was also well-sourced evidence that Hamas had expressed a willingness (albeit mainly in “confidential” diplomatic talks) to discuss some of those issues which in public it had suggested are non-negotiable. She noted it is rightly a matter of editorial judgement how that is nuanced in BBC output and she did not see how in this instance the complainant‟s point engages the Editorial Guidelines. Regarding the complainant‟s argument that Hamas has a genocidal intent towards the Jewish people and that this should have been stated in the article, the Head of Editorial Standards noted that in the quotes above and also in numerous additional examples in the article, Hamas‟s advocacy for violence against Israel and its citizens is made clear. She noted that the article detailed the series of bus bombings in early 1996 which killed nearly 60 Israelis and reported the organisation‟s support for suicide bombings. With regard to the choice not to characterise Hamas‟s attitude towards the murder of Jewish civilians in the same way as it is expressed in the Hamas Charter, the Head of Editorial Standards said that this was a matter of editorial judgement which does not engage the Editorial Guidelines. Complaint Point 2: The Hamas profile did not include any reference to recent Hamas terrorist activity. The Head of Editorial Standards noted that the complainant had cited intense bombardment of Israel by Hamas from February until May 2011. He also mentioned the murder of a schoolboy and the murder of a British student. The Head of Editorial Standards said that this would only be an issue for consideration under the guidelines if the effect of that omission rendered the item inaccurate or misleading in some way.

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The Head of Editorial Standards noted that both the article and the picture captions it contains relayed in some detail the level of violence used by Hamas in pursuit of its aims. There was reference to rockets being fired and also to suicide bombings. She said that the BBC properly used its editorial judgement and was under no obligation to include the specific examples the complainant mentioned. In addition, the dateline of when the article was last revised was clearly marked, and it preceded the events mentioned. The Head of Editorial Standards did not believe this point engaged the Editorial Guidelines. Complaint Point 3: The Hamas profile described some elements of the Hamas leadership as moderate when this was not the case. The Head of Editorial Standards set out the part of the article to which the complainant objected:

“More moderate political figures also emerged as significant players within the movement.

“One of them was Ismail Haniya, a former aide to Sheikh Yassin, who was appointed to a „collective leadership‟ in the occupied territories along with the more hardline Mahmoud Zahhar and Said al-Siyam.”

She noted that only Ismail Haniya was mentioned by name; he was described as “more moderate” in comparison to the “more hardline” Mahmoud Zahhar. She said that it was not an absolute statement, but one comparing two men.

The Head of Editorial Standards noted the quotes from some of Mr Haniya‟s speeches that the complainant had included in his submission, and also the complainant‟s contention that the impression of moderation was one fostered dishonestly by Hamas itself. She noted that it is the preserve of editorial judgement what weight to give to evidence, of which quotes from speeches are only a part. She said that journalists would take into consideration deeds as well as words, and also other factors such as the likelihood that Mr Haniya might nuance sentiments differently depending on his audience.

The Head of Editorial Standards noted that the comment about Mr Haniya was in the context of a profile which, as noted in her response to complaint point 1, reflected Hamas‟s continued steadfast refusal to sign up to a permanent ceasefire. She did not consider that the allegation of inaccuracy in relation to this issue would have a reasonable prospect of success were it to proceed to appeal.

Complaint Point 4: The Hamas profile said that Israel was responsible for starting the war in Gaza. The Head of Editorial Standards noted that the complainant had said that, despite Hamas having unilaterally chosen to end the cease-fire that preceded the Gaza war, the profile of Hamas said that Israel launched the war. The Head of Editorial Standards said she could not find this reference in the version of the article which the complainant had supplied. It did not mention the 2008 war in Gaza at all, let alone who might have been responsible. In the event that the complainant had an alternative version of the article which included the statement he quoted, the Head of Editorial Standards said only that it was a fact that Israel launched the war, and it would be entirely reasonable for the journalist to state the reason Israel gave for doing so. She

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asked the complainant to provide the article, and said that currently there was nothing to test here against the guideline on Accuracy. Complaint Point 5: The three profiles of the Hamas leaders. The Head of Editorial Standards then turned to the complaints about the profiles of the three leaders. She accepted the validity of the complaints in that, at the time the complaints were made, the articles were accessible by linking from current BBC output. She noted that the complainant had said he believed the issues raised about the articles in July 2011 would have applied equally had the complaints been made when the articles were first written in 2006. The Head of Editorial Standards noted that the complainant had asked for each article to be considered individually, and she said that she would do this, but that first she would like to make some general comments about the profiles, as the appeal raised a number of points that related to all three. The Head of Editorial Standards said:

 The profiles were not presented in isolation and would be accessed by readers who had followed links from a more general page about Hamas or the Palestinian territories.  There would not be an expectation for any individual profile to provide a comprehensive account of Hamas policy. The role of the profile would be to illuminate each individual leader‟s role within the wider Hamas story.  As such the reference to Israel‟s assassination attempts against the respective leaders would be editorially justified as the profiler was focusing on events as they affected those individuals.  With regard to the allegation that the profiles underplayed Hamas‟s violent intent, the Head of Editorial Standards reiterated the point that the profiles did not appear in isolation and that the page which they linked from contained additional detail about the organisation‟s activities. She cited section 4.4.25 of the Editorial Guidelines which states that a set of interlinked web pages may be considered as a whole for impartiality purposes.

The Head of Editorial Standards then considered each of the three profiles in turn. 1. Ismail Haniya The Head of Editorial Standards noted that the complainant had alleged Ismail Haniya‟s profile was misleading because it did not state that his policy is to take over all of Israel. The complainant also said the profile emphasised Israeli attempts to kill him, but not why.

The Head of Editorial Standards noted that the date the profile was written was clearly signalled to the reader, and Ismail Haniya had only relatively recently taken over the leadership of Hamas in the Gaza Strip. The Head of Editorial Standards said that the profiler had exercised editorial judgement in describing where Ismail Haniya sits within the ranks of Hamas. She quoted from the profile:

“He is considered a pragmatist in the movement‟s ranks who is more open to dialogue with Israel.”

The Head of Editorial Standards accepted that an updated profile might also have chosen to include his condemnation of the assassination of Osama Bin Laden in May 2011, as cited in the complainant‟s appeal. However, the Head of Editorial Standards noted the profile was clearly marked with the date it was written.

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The Head of Editorial Standards noted the complainant had said Ismail Haniya‟s policy had not changed substantively since the profile was written, but she said that she must assess the article on what would have been available to the journalist who was writing the profile at the time.

The Head of Editorial Standards noted that the more hardline position attributed to Ismail Haniya came largely from extracts of speeches he gave at election rallies during January 2006. She agreed they were uncompromising in relation to Israel. However, she considered that the role of the journalist is to reach a professional judgement on the evidence presented to them and then to exercise that judgement in selecting what to include or not to include.

The Head of Editorial Standards said that Ismail Haniya‟s profile reflects his role on the international stage and how he has positioned his Government and his people‟s aspirations for independence. She said that the profiler had chosen to highlight that aspect of Ismail Haniya because that was what the profiler considered relevant and important. The Head of Editorial Standards did not accept that the article suggested Ismail Haniya did not believe in the principles which guide Hamas. She noted the concluding paragraphs of the profile:

“He stressed (when outlining his administration‟s programme) the Palestinians were entitled to continue their struggle for independence, but at the same time said he wanted to hold talks with international mediators about solving the conflict.

“Our government will spare no effort to reach a just peace in the region, putting an end to the occupation and restoring our rights”

The Head of Editorial Standards said she did not believe an appeal on the grounds of inaccuracy would have a reasonable prospect of success.

2. Mahmoud Zahhar

The Head of Editorial Standards noted the complainant‟s allegations in relation to the profile of Mahmoud Zahhar:

 the article says he justified acts of violence, but does not mention his advocacy of such acts  he has publicly stated that nothing less than the liberation of Gaza, the West Bank and Jerusalem would suffice but this is not reflected in the profile  there is no evidence for the statement in his profile that he floated the possibility of peace talks with Israel via a third party and this is inaccurate

The Head of Editorial Standards noted that, while the profile did not characterise Mahmoud Zahhar in the way the complainant would wish, it made it clear where he stands politically within the party. She noted the profile states that he is one of Hamas‟s ideological leaders and that he is considered more hardline than Ismail Haniya. She also noted that the caption alongside his profile picture at the top of the page says “Mahmoud Zahhar insists Hamas has a „right to resist‟”, and she quoted the concluding paragraphs of the profile:

“(Hamas) agreed to an informal truce with Israel which began in February 2005, and Hamas took part in elections for the first time. Although the international community has called on Hamas to renounce violence, Mr Zahhar has insisted his organisation has the „right to resist‟ Israeli attacks.

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“„We are not playing at terrorism or violence. We are under occupation,‟ he said.

“„The Israelis are continuing their aggression against our people, killing, detention, demolition and in order to stop these processes, we run effective self-defence by all means, including using guns.‟

“While insisting on the right to „resist‟ he has also floated the possibility of holding peace talks with Israel via a third party.”

The Head of Editorial Standards said that the quote above clearly highlighted Mahmoud Zahhar‟s advocacy of violence though this may be presented as self-defence. She noted that other quotes may exist, such as those cited by the complainant, but she did not believe their inclusion would have left the reader with a different impression of Mahmoud Zahhar‟s position. The Head of Editorial Standards therefore said that the guidelines had not been engaged in relation to this point.

The Head of Editorial Standards said that she did not have any specific evidence to support the statement in the article that Mahmoud Zahhar had floated the possibility of peace talks via a third party. However, she noted that there was well-sourced evidence that the Hamas leadership had engaged in behind-the-scenes diplomacy at times over the years, which has resulted relatively recently in headlines accusing them of betraying their principles. The Head of Editorial Standards said that, as Mahmoud Zahhar is clearly a key figure in the organisation it was unlikely that he would not have been party to these initiatives.

The Head of Editorial Standards said that the profiler had exercised their proper role in selecting to include what they believed to be most relevant about Mahmoud Zahhar, beyond what is already known about the organisation as a whole. In this case, the choice was clearly to emphasise his role as one of the Hamas founders, as the target of an Israeli assassination attempt which killed his son, as a relative hardliner and one of those who supported Hamas‟s involvement in the political process.

In relation to the complainant‟s second point, the Head of Editorial Standards said that Mahmoud Zahhar subscribing to the statements in the Hamas Charter which call for the return of all Palestinian lands was a legitimate fact for the journalist to exclude, as the omission of that information would not alter the reader‟s perception of Mr Zahhar‟s views. She noted that this information was in the article on Hamas.

The Head of Editorial Standards said her view was the same for the complainant‟s final point; she did not believe that an appeal which alleged it was inaccurate to state that Mahmoud Zahhar floated the idea of peace talks via a third party would have a reasonable prospect of success.

3. Khaled Meshaal

The Head of Editorial Standards noted that the complainant had raised two specific points in relation to Khaled Meshaal‟s profile:

 it emphasised Israel‟s attempts to kill him rather than his participation in the campaign of terror

 his profile suggested it is only Israel which alleges that Hamas leaders are involved in the murder of civilians

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In relation to the complainant‟s first point, the Head of Editorial Standards quoted what the profile had said, which she noted was alongside an image of masked Hamas activists and a caption saying “Hamas has been responsible for many suicide bombings in Israel”:

“He took over the operation of a Hamas bureau in the capital Amman, where he was in charge of international fundraising for Hamas.

“He was also particularly energetic in expanding the group's foreign relations with countries such as Iran and Syria.

“Money was channelled from donors around the world to the West Bank and Gaza Strip for social welfare programmes run by Hamas.

“The Israelis say some of it was used for suicide bombings and other attacks on Israelis.

“A year later, Israeli agents tried to kill him.”

The Head of Editorial Standards said that the profile made a direct association between Khaled Meshaal‟s activities, Hamas‟s campaign of terror, and Israel‟s attempt to assassinate him. She said that this complaint did not engage a relevant guideline.

Regarding the second point, the Head of Editorial Standards quoted the section of the profile which she assumed it referred to:

“Israeli assassination attempt The operation was authorised by the government of Prime Minister Benjamin Netanyahu, which described Mr Meshaal as the „pre-eminent figure in Hamas and responsible for the murder of innocent Israeli civilians‟.”

The Head of Editorial Standards said that it does not logically follow that in attributing a quote to Mr Netanyahu the article implied that only Israel believes Hamas leaders or Khaled Meshaal are responsible for the murder of civilians. She also observed that the profile again linked Khaled Meshaal directly to Hamas-perpetrated violence, and therefore gave an explanation for Israel‟s targeting of him.

On the complainant‟s broader point, the Head of Editorial Standards said the profile made clear that Khaled Meshaal is one of the key figures in the organisation. She said that the profile, and the country profile from which it is linked, clearly associate Hamas with the perpetration of numerous acts of violence against the civilian population in Israel. The Head of Editorial Standards said that readers would assume that a leader of Hamas, such as Khaled Meshaal, would ultimately be responsible for the actions of its members. Again, she did not think the complaint engaged a relevant guideline.

The complainant requested that the Committee review the decision of the Head of Editorial Standards not to proceed with the appeal. He raised a number of points:

 the complainant raised a new point about a particular extract from the Hamas profile and alleged bias by omission  the Hamas profile did not mention recent acts of violence by Hamas against Israel but did mention more recent actions carried out by Israel  the use of the word “moderate” in the context of Hamas was inappropriate  the way the cease-fire was described was inaccurate

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 the profiles would be read by people following links from up-to-date articles who would assume that they were equally up-to-date  there was no evidence to support the claim in the profile of Ismael Haniya that he was open to dialogue with Israel  Mahmoud Zahhar had not floated the possibility of peace talks previously  Khaled Meshaal‟s profile was misleading

On the point regarding Mahmoud Zahhar, the Trust Unit asked the BBC to provide the source for the statement in the profile that he had “floated the possibility of holding peace talks with Israel via a third party”. The BBC provided links to three non-BBC news articles which it said supported this statement.

The BBC‟s response was shared with the complainant, who analysed each of the articles and concluded that none of them supported the idea that Mahmoud Zahhar had an interest in holding genuine peace talks.

The Committee’s decision

The Committee was provided with the complainant‟s appeal to the Trust, the response from the Head of Editorial Standards and the complainant‟s letter asking the Committee to review the Head of Editorial Standards‟ decision. The Committee was also provided with the Stage 2 findings from the Editorial Complaints Unit and the Head of Editorial Compliance and Accountability for News, the BBC‟s response to the request for its source for the statement regarding Mahmoud Zahhar, the complainant‟s response to that, and the four profiles in question.

The Committee noted that the complainant had submitted further material in support of his appeal request on the day before its meeting but it agreed that it would not consider further submissions from any of the parties at such a late stage.

The Committee noted that the complainant had asked the Trust to consider his complaint regarding the accuracy of the articles individually and the impartiality of the articles taken as a whole.

The Committee noted the arguments that the complainant had put forward in support of his complaint that each of the profiles had omitted significant information which resulted in a misleading impression of the subjects of the profile. The Committee noted that it had been the BBC‟s contention that these profiles were no longer “live” and therefore, as the time of the last update was clearly marked, there was no obligation to update the profiles to reflect more recent events. The Committee also noted the complainant‟s allegation that the profiles would have been misleading even at the time when they were being updated.

The Committee agreed that there was no requirement in the Editorial Guidelines for the profiles to be updated to include information about more recent events, but that the information contained in the profiles must be duly accurate at the time of the date stamp. The Committee also noted that the complainant had agreed that the stances of each of the Hamas leaders had not changed since the profiles were updated, but had argued that other specific events should have been referenced. The Committee agreed with the Head of Editorial Standards that the choice of what details to include in the profiles was one of editorial judgement, provided that the Editorial Guidelines were not breached. The Committee noted the Head of Editorial Standards‟ view that in many cases, what was

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included in the profiles was consistent with complainant‟s view of the objectives and aims of Hamas and the individuals profiled. The Committee therefore agreed that the omission of the specific material highlighted by the complainant had not rendered the profiles inaccurate or misleading. The Committee concluded that there was not a reasonable prospect of success for an appeal on the grounds that any of the articles had breached the guidelines on accuracy.

On the specific question of the accuracy of the statement that Mahmoud Zahhar had floated the possibility of holding peace talks with Israel, the Committee agreed that the question required interpretation of what had been said by Mahmoud Zahhar in different situations. The Committee noted that the complainant‟s interpretation differed from that of the journalist who had written the profile but it agreed that this was not a sufficient basis to support an appeal on the grounds of a breach of the accuracy guidelines.

Taking into account that it did not believe there was a case for an appeal on the grounds that the articles had been inaccurate individually, the Committee agreed that overall they were not misleading or biased. The Committee therefore concluded that there was no reasonable prospect of success for an appeal on the grounds that the profiles taken together had breached the impartiality guidelines.

The Committee therefore decided this appeal did not qualify to proceed for consideration.

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Today programme coverage of NHS neonatal and child care The complainant appealed to the Editorial Standards Committee following the decision of the Head of Editorial Standards that the complainant‟s appeal did not qualify to proceed for consideration by the Committee. The complaint Stage 1 The complainant initially wrote to BBC Audience Services, saying that the edition of Woman‟s Hour broadcast on 15 July 2010 showed a “lack of sensitivity” towards people who had lost a baby. She said that, while the programme did feature an item on bereavement services following neonatal death, the BBC consistently displayed more concern about adult illnesses and deaths than those of babies and children. The complainant also said that she was “deeply upset and angered” to see a trailer for a future programme which was to be wholly devoted to the subject of people who choose to be “childfree”.

She complained that the programme summary on “listen now” did not mention the item on parental bereavement.

The complainant said she would like the BBC to explain why it only featured one case of bereavement on this programme yet arranged a whole phone-in about not wanting children.

The complainant said that Britain has a high stillbirth rate and neonatal services have not been given the funds they need to keep pace with demand. The complainant said that this is rarely reported on BBC Radio 4 and the programme should have shown greater respect for SANDS, the bereavement charity they had featured, and for the feelings of bereaved parents.

In a follow-up phone call the complainant said that the edition of the Today programme broadcast on 12 November 2010 showed a clear imbalance in the coverage given to “adult” healthcare issues and those affecting the very young and the very old.

The complainant also wrote to a Today programme presenter to complain that too little attention was given to NHS treatment of babies. She referred to a report by the Neonatal Taskforce which had quoted a 2,700 shortfall in nursing staff on neonatal units, but whose recommendations for extra funding had not been met by the Government. She noted that although the Today programme mentioned the report in its headlines, it did not follow this up with a discussion.

The complainant referred to a recent File on Four programme in which a coroner called for proper post mortems to be carried out on stillborn children to aid medical understanding of its causes and she complained that Today had not also covered the topic.

BBC Audience Services wrote to the complainant, referring to two recent editions of the Today programme; a feature comparing hospital and home births, and a report about treatment of elderly people around the world.

The complainant wrote to the BBC‟s Head of Complaints complaining about the manner in which her complaint about the Woman‟s Hour programme had been dealt with. She said

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that the subject of her letter, how BBC Radio 4 regards the death of babies, is not a trivial issue.

The complainant contrasted the difference in coverage between News online and Radio 4.

BBC Audience Services provided a response to the complaint about the Today programme and included a link to coverage in April of the Lancet report on UK stillbirths.

The complainant was also in correspondence with the BBC regarding separate complaints about the BBC website‟s “Editor‟s pick” and how her complaints had been handled.

The complainant replied to the response from BBC Audience Services, saying she was relieved when she heard the Today report on stillbirths. She said, however, that she believed there was a culture within parts of the BBC that thinks the deaths of children in the UK are of little interest unless they are extreme cases involving violence. The complainant said that a BBC report into deaths from flu did not mention how many were children and stated that “an incisive reporter” would have realised this was an issue and pursued it.

A Senior Producer at Radio 4 replied, thanking the complainant for her comments and stating that she was sure the Today programme would return to this important subject in the future.

The complainant wrote again to the Today programme complaining that it had devoted significant time to covering a story from The Children‟s Society about treatment of immigrant children in detention but had only briefly mentioned a report from the special care babies charity Bliss about cuts to frontline nursing staff. She stated that she would complain to the BBC Trust.

The Duty Editor of the Today programme wrote to the complainant, saying that the programme had interviewed the President of the Royal College of Obstetricians and Gynaecologists, whose organisation had just published a report calling for a radical shake- up of women‟s health services, but added that the programme could not always cover every report on any given subject.

Stage 2

The complainant wrote to the Director of BBC News to reiterate her points that healthcare of babies and children was rarely covered and that she felt failings in the relevant health service were largely ignored.

The Head of Editorial Compliance and Accountability for BBC News replied to the complainant. She noted that the complainant had acknowledged that the BBC News website had given the issue a degree of attention. She said that the Today programme was not a programme of record and could not cover every topic. She set out the Duty Editor‟s description of the role of the Today programme:

“„Today‟ aims to set the agenda for the day ahead. It‟s not a programme of record in the sense that „The Times‟ used to be described as the paper of record. Our job, at least in news terms, is to set out the major stories we think are significant or will have significance that day. Over time we do reflect a wide range of subjects but on a daily basis there will be stories we don‟t follow (even if they‟re in the papers) either because they fall outside our time or most often because they have already been comprehensively covered elsewhere on Radio 4 by the time we go on air.”

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The Head of Editorial Compliance and Accountability included links to some recent coverage by the Today programme about neonatal care.

Appeal to the BBC Trust

The complainant appealed to the BBC Trust on 17 January 2012, alleging that the Today programme never ignores reports into shortcomings in the care of the elderly “…yet it has ignored the failure to fund maternity and neonatal care to meet increasing demand and cope with increasingly complex pregnancies”. She quoted the NHS Toolkit Report and the Bliss report and complained that they were only mentioned in headlines on the programme.

The complainant said that it was inconsistent for the Head of Editorial Compliance and Accountability to say that child mortality is dropping in the UK whilst on another day an interviewer questioned a guest on why “not enough was done” to protect the life of just one child. The complainant said that, although Today did cover a report on child mortality in the Lancet with an interview with a mother who had lost her baby, the programme showed a “lack of interest” in pursuing and investigating government lack of action on this subject.

She further complained that whereas the Today programme covered a Save the Children campaign about child mortality overseas, this did not look at the issue in this country. The complainant asked the BBC Trust to look at coverage of shortcomings in maternity and neonatal care by Today, and the charities it chooses to interview and promote.

The complainant subsequently wrote to the Trust noting that the Today programme had not covered the launch of a report by SANDS attended by a Health Minister, yet on the same day had covered a Save the Children campaign.

The Trust‟s Head of Editorial Standards replied, explaining that the Trust does not adjudicate on every appeal that is brought to it, and part of her role is to check that appeals qualify for consideration by the Trust (or one of its complaints committees) under the Complaints Framework. The Head of Editorial Standards said that the relevant correspondence had been reviewed by the Trust Unit. She said that she did not consider that the appeal had a reasonable prospect of success and therefore did not propose to put it before the Editorial Standards Committee.

The Head of Editorial Standards said that she appreciated the complainant had written to the BBC because she felt very strongly about the issue and why the BBC should give it coverage.

The Head of Editorial Standards explained that her role was to determine whether an appeal had engaged any of the BBC‟s Editorial Guidelines. She said that it is not her function to decide whether there has been a breach of the Editorial Guidelines, as that is a matter for the ESC. If she determined that any of the Editorial Guidelines had been engaged, she would then consider whether the appeal raised a matter of substance, and in particular whether there was sufficient evidence to suggest that it had a reasonable prospect of success and there was a case for the BBC Executive to answer. In reaching her decision, she explained that she must give consideration to whether it was appropriate, proportionate and cost-effective for the Trust to address the appeal.

The Head of Editorial Standards said that the BBC Editorial Guidelines which might be engaged by the complaint were those dealing with impartiality, and that the BBC has additional particular responsibilities when reporting on “controversial subjects”. She said that, in determining whether a subject is controversial, the BBC should take account

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(among other things) of such issues as the level of public and political contention and debate; how topical the subject is; and sensitivity in terms of the audience‟s beliefs and culture.

The Head of Editorial Standards explained that there are strict separations of remit between the BBC Executive and the BBC Trust. She said that the Royal Charter and the accompanying Agreement between the Secretary of State and the BBC draw a distinction between the role of the BBC Trust and that of the BBC Executive Board, led by the Director-General.

She explained that “the direction of the BBC‟s editorial and creative output” is specifically defined in the Charter (paragraph 38, (1) (b)) as a duty that is the responsibility of the Executive Board, and one in which the Trust does not usually get involved unless, for example, it relates to a breach of the BBC‟s editorial standards.

The Head of Editorial Standards said that the decision by the Today programme to cover some of the reports the complainant cited on maternity and neonatal care in headlines but not in further detail was an editorial decision over which the Trust had no remit unless a breach of a specific editorial guideline is alleged. She said this was also the case with the decision whether or not to cover other reports or stories on the subject which are covered in other media or on other BBC output, and the decision whether or not to question members of the government on the subject.

The Head of Editorial Standards therefore considered the question of whether there are grounds to believe any guidelines have been breached.

The Head of Editorial Standards said that, while the NHS provision of maternal and neonatal services was undoubtedly an important and emotive subject, it was not however, a “controversial subject” within the meaning of the Editorial Guidelines; there was not at present a high level of public or political contention or topicality about it.

The Head of Editorial Standards noted the complainant‟s claim that the Today programme is inconsistent, or biased, in its lack of coverage of allegations of inadequate funding of neonatal services. She noted that the complainant quoted statements from reports from the NHS Medical Director and the charity, Bliss, alleging a lack of staff in these services. The Head of Editorial Standards noted that the complainant was dissatisfied with the Head of Editorial Compliance and Accountability‟s response, which was that over time, the programme does reflect a wide range of subjects but –

“on a daily basis there will be stories we don‟t follow (even if they‟re in the papers) either because they fall outside our time or most often because they have already been comprehensively covered elsewhere on Radio 4 by the time we go on air”.

The Head of Editorial Standards noted the complainant‟s comment that, given the former Prime Minister‟s baby died as did the child of the current Prime Minister, she “…had to challenge the judgement of the programme‟s editors” in not interviewing a government representative.

The Head of Editorial Standards explained that she had examined the claim of bias by reference to the Impartiality guidelines, which do give the BBC Executive a wide remit to select independently the stories they wish to cover; and to the Royal Charter and Agreement, which do not allow the BBC Trust to interfere with the BBC‟s editorial decisions (if not themselves in breach of guidelines). She said that she did not believe that there was a case for the Executive to answer. The Head of Editorial Standards noted that the Today programme did cover the two reports mentioned in its headlines and, as

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has been set out in earlier correspondence on this complaint, the programme did cover the issue in greater depth from time to time.

The Head of Editorial Standards noted the complainant‟s comments comparing the lack of coverage of the Bliss report with coverage of a report about the detention of children by immigration authorities. She also noted the complainant‟s view that the rigorous questioning of a guest about the protection of the life of just one child was inconsistent with the programme‟s lack of coverage of the subject of neonatal deaths. The Head of Editorial Standards said that, since the complainant did not allege actual bias or lack of impartiality in the manner of reporting on the issue, but rather that bias was demonstrated simply by the fact that the issue and the reports cited were not covered in as much depth as other reports about other issues, there were no grounds on which she could place this appeal before the ESC and there was no case for the Executive to answer in respect of the Editorial Guidelines.

Turning to the Today programme‟s coverage of a Lancet report on stillbirths, which included an interview with a representative from a stillbirth charity, the Head of Editorial Standards noted that the complaint appeared to be that the programme should have also interviewed a government representative about the issue.

The Head of Editorial Standards explained that the BBC is entitled, as set out in the guidelines on Impartiality (4.2.5),

“to produce content about any subject, at any point on the spectrum of debate, as long as there are good editorial reasons for doing so.”

Furthermore, although the BBC, in covering news, must give “due weight to events, opinion and main strands of argument”, this does not mean it is obliged to interview government representatives.

The Head of Editorial Standards noted the complainant‟s request for the Trust to investigate how the Today programme covers the subject of shortcomings in UK services in maternity and neonatal care and also “the charities it chooses to interview and promote”. She noted the complainant‟s view that “the BBC has a responsibility to demonstrate that it does not favour viewpoints or groups over others or exclude them”.

The Head of Editorial Standards explained that she had examined the evidence presented and the responses received from the BBC. She noted that the BBC had sent the complainant links to items covering stillbirths, research on premature babies and the question of whether childbirth should be at home or in hospitals. She also noted coverage of the subject on Radio 4‟s File on Four. Furthermore, the Head of Editorial Standards noted that the complainant had herself referred to other coverage, for example the items following a report in the Lancet, and coverage of other reports she had mentioned in the headlines and other parts of the BBC. The Head of Editorial Standards noted the complainant had also referred to detailed coverage by BBC Online.

The Head of Editorial Standards said that the BBC has editorial freedom to produce content about any subject so long as this content is not biased. She said that the fact the BBC had covered other unrelated subjects in greater depth than the complainant would wish, or had not covered the subject of neonatal healthcare in the way or in the depth the complainant would like, did not amount to sufficient evidence to suggest that the appeal had a reasonable prospect of success. She said that it also did not suggest that there was a case to be answered by the BBC Executive, nor did it suggest that any specific guidelines have been breached.

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The complainant requested that the Committee review the decision of the Head of Editorial Standards not to proceed with the appeal. The Committee’s decision The Committee was provided with the complainant‟s appeal to the Trust, the response from the Head of Editorial Standards, a reply from the complainant, a further letter from the Head of Editorial Standards and the complainant‟s letter asking the Committee to review the Head of Editorial Standards‟ decision. The Committee was also provided with the Stage 2 finding from the Head of Editorial Compliance and Accountability for News.

The Committee noted the complainant‟s very strong feelings about the subject of neonatal care. While it was sensitive to the complainant‟s concerns in seeking greater coverage of the subject by the Today programme in particular, it agreed that the choice of subjects to include in any given edition of the programme was an editorial decision which was ultimately the responsibility of the BBC Executive and not the Trust, provided there is no breach of the Editorial Guidelines. The Committee agreed with the Head of Editorial Standards‟ conclusion that the fact that the BBC had covered other unrelated subjects in greater depth than the complainant would wish, or had not covered the subject of neonatal healthcare in the way that the complainant would like, did not amount to sufficient evidence to suggest a breach of the Editorial Guidelines on impartiality.

The Committee noted that, in her response to the Head of Editorial Standards‟ decision, the complainant had argued that the subject was a controversial one. The Committee agreed with the Head of Editorial Standards that the subject was not a controversial one within the meaning intended by the Editorial Guidelines.

The Committee noted that the complainant had also taken issue with the Head of Editorial Standards‟ reasoning that the complaint did not raise a “matter of substance”. The Committee was mindful that this was the terminology of the Appeals Procedure and was not intended to relate to the importance of a subject to the complainant, or more generally to others with an interest in the subject. The Committee agreed that the complaint had not raised a matter of substance in the sense that it had no real prospect of successfully demonstrating that the BBC had been in breach of the Editorial Guidelines, which is the specific remit of the Committee.

The Committee therefore decided this appeal did not qualify to proceed for consideration.

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Watchdog, BBC One, 14 April 2011 The complainant appealed to the Editorial Standards Committee following the decision of the Head of Editorial Standards that the complainant‟s appeal did not qualify to proceed for consideration by the Committee. The complaint

Stage 1

The complainant contacted the BBC regarding the episode of Watchdog broadcast on 14 April 2011. The programme had contained an item on the surcharges some companies and organisations levy for using certain types of charge cards. The report had looked specifically at the amount airlines were charging for customers who were paying by certain payment cards (such as credit or debit cards) and how the public could try and minimise or even avoid them. Martin Lewis presented a pre-recorded report and then was interviewed afterwards live on the programme. At the time of broadcast, Mr Lewis was also supporting a “super-complaint” from the consumer organisation Which? to have these charges looked at by the Office of Fair Trading. The complainant said that:

 the programme “plugged” several brand names and “advertised buying financial products”  the BBC was “advertising” financial services that Martin Lewis was selling  the presenter said that “everyone should have Mr Lewis as a travel advisor”

BBC Audience Services replied, saying that the programme was not advertising these companies or any other products but was rather investigating concerns that the general public may have had, and that Martin Lewis was providing his own views based on his experience and profession.

In response the complainant said that the complaint was specifically about the statement that “all holiday makers should consult Martin Lewis”, and that this had not been dealt with.

BBC Audience Services said that the presenter had not made the comment that the complainant had attributed to her. In further response, BBC Audience Services quoted the precise words that the presenter had used: “Martin, we need you in our pockets”.

BBC Audience Services said that the presenter had intended this comment to make the point that this was a complex issue and it would be handy to have someone permanently on hand to help explain. It was not “an unqualified endorsement of Mr Lewis”.

Stage 2

The complainant wrote to the Editorial Complaints Unit at Stage 2 of the complaints process, saying that:

 it was not necessary to name the payment cards  Mr Lewis referred to these cards and they are the same ones as he “publishes on his website” - this should have been mentioned in the programme  “Mr Lewis's business is a paid agent for these prepaid cards”. He will have been paid for referring sales of these cards either directly or via an intermediary, through viewers going to his website and clicking through  there was an endorsement by the presenter of Martin Lewis as a travel adviser.

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In a further letter the complainant added that:

 Ryanair does not specifically recommend Kalixa or endorse it (Kalixa‟s own press release confirms this) and Watchdog should have stated this fact.  Mr Lewis‟s business is paid by providers for introducing consumers to financial products and Watchdog should have referenced this.  there was a conflict of interest.

The Editorial Complaints Unit did not uphold the complaint and the Head of Editorial Complaints explained his decision in a letter of 2 December 2011.

The Head of Editorial Complaints said his view was that Mr Lewis had not crossed the boundary between the promotional and the merely factual. Referring to Mr Lewis‟s contribution to the programme, the Head of Editorial Complaints said that he had already made clear that the view of consumer bodies, as well as his own view, was that the practice of levying charges for card transactions far in excess of the cost of processing the transactions should cease. In that context the use of pre-paid cards was presented more as a “least worst” alternative than as a desirable option in their own right. Mr Lewis also made the point that credit cards confer protection which pre-paid cards do not. The Head of Editorial Complaints said that, while Mr Lewis did mention two of the pre-paid cards which could at the time be used for Ryanair transactions, his emphasis was on pre-paid Mastercards generically, and he did not recommend either of the named cards over another, or over their unnamed alternatives.

The Head of Editorial Complaints noted that the two cards named by Mr Lewis were FairFx and Kalixa. He said that the complainant was correct saying these were among those featured at the time on Mr Lewis‟s website. He said that the complainant may also be right in saying that he would benefit from a referral fee if customers obtained these cards via his website, but, in the absence of anything in the item which would have directed viewers towards that website (apart from the caption identifying him as “MONEY SAVING EXPERT” which appeared on screen for a few seconds), taken with the absence of any element of recommendation for particular cards, that did not constitute a declarable financial interest in this context.

In relation to the presenter‟s final remark to Mr Lewis, the Head of Editorial Complaints said that he understood it as meaning that it would be convenient to have a portable source of information on such a topic. He did not agree that it should be characterised as “an unqualified endorsement of Mr Lewis as a travel adviser”.

Appeal to the BBC Trust

The complainant wrote to the BBC Trust asking for the appeal to be considered.

The grounds put forward by the complainant were that:

 The BBC was advertising certain payment cards and methods to avoid charges on budget airlines such as Ryanair.  Ryanair does not endorse or recommend these (or specifically the Kalixa) cards. Watchdog made no reference to this.  There was no need to refer to these cards by name.  Martin Lewis has a financial interest in the products he was referring to, therefore the viewer should have been made aware of this and there was a conflict of interest.  Reference was made to Martin Lewis‟s business – moneysavingexpert.com  Ryanair subsequently changed its practice of charging and therefore this

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Watchdog item was misleading.  The presenter endorsed Martin Lewis as a travel adviser with her closing remarks.

The complainant also asked whether Mr Lewis's appearances on the BBC as Money Saving Expert were in return for mentioning or linking to his company moneysavingexpert.com, and if so whether this had confused the public about the legal difference between editorial and commercial businesses.

The complainant provided several documents with the appeal, including: an Ofcom adjudication concerning links from a GMTV website to Mr Lewis‟s website; a recent press article; an account given of his business by Mr Lewis to the Treasury Select Committee; Mr Lewis‟s company‟s consumer credit licence from the Office of Fair Trading.

The Trust‟s Head of Editorial Standards replied, explaining that the Trust does not adjudicate on every appeal that is brought to it, and part of her role is to check that appeals qualify for consideration by the Trust (or one of its complaints committees) under the Complaints Framework. The Head of Editorial Standards said that the relevant correspondence had been reviewed by the Trust Unit and an independent editorial adviser had reviewed the programme in question. She said that she did not consider that the appeal had a reasonable prospect of success and therefore did not propose to put it before the Editorial Standards Committee.

She explained that, as Head of Editorial Standards, her role is, first, to determine whether an appeal has engaged any of the BBC‟s Editorial Guidelines. She emphasised that it is not her function to decide whether there has been a breach of the Editorial Guidelines, as that is a matter for the ESC. If she determined that any of the Editorial Guidelines had been engaged, she must then consider whether the appeal raises a matter of substance, and in particular whether there is sufficient evidence to suggest that it has a reasonable prospect of success and there is a case for the BBC Executive to answer. She said that, in reaching her decision, she must give consideration to whether it is appropriate, proportionate and cost-effective for the Trust to address the appeal.

The Head of Editorial Standards took each of the complainant‟s grounds for appeal in turn.

Appeal point 1: The BBC was advertising certain payment cards and methods to avoid charges on budget airlines such as Ryanair.

The Head of Editorial Standards said she did not consider that the report or the interview on Watchdog could reasonably be characterised as advertising. In her opinion, this was clearly an editorial item based around Which?'s super–complaint on these surcharges, or drip fees. She said that this issue has frequently been in the press, and other media, and is a well-known issue of complaint from customers. The Head of Editorial Standards said that the programme certainly examined this in an editorial manner, looking at other areas where these charges exist, looking at the reasons for the charges, interviews with relevant parties and importantly gave the advantages and disadvantages of payment methods (e.g. that credit cards give you extra protections, certain cards are not completely free). She therefore did not consider that there was a reasonable prospect of success for this aspect of the complaint and she did not propose to put it before the Committee.

Appeal point 2: Ryanair does not endorse or recommend these (or specifically the Kalixa) cards. Watchdog made no reference to this.

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The Head of Editorial Standards said that there are a number of payment methods and it is not surprising that a card which avoids or minimises the payments to Ryanair is not recommended by Ryanair. The Head of Editorial Standards noted that the report concerned how to minimise or avoid drip fees, and she said that whether or not Ryanair endorsed the cards referred to by Watchdog was not relevant to ensuring impartiality. She did not believe that viewers would have been misled and did not consider that there was a reasonable prospect of success for this aspect of the complaint.

Appeal point 3: There was no need to refer to these cards by name.

The Head of Editorial Standards said that doing so in this case was not in itself problematic or likely to be a breach of the guidelines. She noted that Watchdog is a consumer programme, and offering information and, where appropriate, advice to viewers is part of its remit. She said that this report first asked whether these charges could be justified and then gave advice on how to avoid them. The Head of Editorial Standards said that, given the programme was stating that the consumer could avoid these charges and was helping them do so, it was reasonable to assume that it was editorially justified to do so. She said that viewers would expect to be given examples of pre-paid or other cards which would help minimise the charges. The Head of Editorial Standards noted that, while the programme did refer to two cards specifically, it introduced them in more general terms as “pre-paid Mastercard” and indicated that other cards exist (it also stated that Kalixa and FairFX were examples of these types of cards). The Head of Editorial Standards did not consider that there was a reasonable prospect of success for this aspect of the complaint.

Appeal point 4: Martin Lewis has a financial interest in the products he was referring to, therefore the viewer should have been made aware of this and there was a conflict of interest.

The Head of Editorial Standards noted that Martin Lewis owns a website and that he states on this website that it takes no advertising, is not a subscription service and companies cannot pay to be included on it. It claims to be wholly independent. The Head of Editorial Standards said it appears from the website that Martin Lewis receives something called “an affiliation payment”. She noted that the website explains:

“Guides are written purely from a „what‟s the best way to save money?‟ stance. Yet, once they're finished one of the team has the job to see if any „affiliate links‟ to the top products can be found.

While these look and work in the same way as normal links, if someone clicks through the link is tracked and it may generate a payment to the site (the details vary; sometimes per click, per user, per application, per accepted application or any combination).”

The Head of Editorial Standards said that companies with an affiliation link are marked with an asterisk on the website, and that it appears Kalixa and FairFX both have affiliate links.

The Head of Editorial Standards said that the Editor of Watchdog had informed the independent editorial adviser that Martin Lewis has no general financial relationship with these two cards (other than that referred to above) and gains nothing from promoting them.

Given that any payment is made solely from links on his website and not from his endorsement, the Head of Editorial Standards did not consider that it was likely the Trust

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would find a conflict of interest. She said there was no reference made to his website (though she noted that his onscreen label appeared as “Money Saving Expert” – with a gap between the words to differentiate it from the website), neither was there a reference to how to obtain these cards in the programme. She said, therefore, there was no inducement in the programme to go to Martin Lewis's website and it appears that there was no direct financial gain for Martin Lewis's company. The Head of Editorial Standards did not consider there was a reasonable prospect of success for this aspect of the complaint.

Appeal point 5: Reference is made to Martin Lewis's business, moneysavingexpert.com.

The Head of Editorial Standards referred to her response to point 4 and reiterated that the only reference was in Martin Lewis‟s onscreen label – which in fact was the more generic term “Money Saving Expert”. The Head of Editorial Standards did not consider there was a reasonable prospect of success for this aspect of the complaint.

Appeal point 6: Ryanair subsequently changed its practice of charging and therefore this Watchdog item was misleading.

The Head of Editorial Standards accepted that it may be the case that Ryanair has changed its practice, but it appears from the correspondence that at the time of the broadcast of the programme this was not the case, and therefore not relevant. The Head of Editorial Standards did not consider there was a reasonable prospect of success for this aspect of the complaint.

Appeal point 7: The presenter endorsed Martin Lewis as a travel adviser with her closing remarks.

The Head of Editorial Standards noted that the presenter had said near the end of the interview, “Martin, we need you in our pockets”. The Head of Editorial Standards said that this did not appear to her to be an endorsement of Martin Lewis as a travel adviser. Rather, it seemed to her that, as the BBC Executive had said, it was a reference to the usefulness of having somebody like Martin Lewis who could provide advice on saving viewers money, easily accessible, as if he were “in our pockets”. The Head of Editorial Standards added that it seemed to be a rather ad lib and informal comment made as studio banter, and was unlikely to be seen as anything other than that. The Head of Editorial Standards did not consider there was a reasonable prospect for this aspect of the complaint.

Appeal point 8: The question of whether Mr Lewis's appearance as Money Saving Expert was in return for mentioning or linking to his company moneysavingexpert.com and, if so, whether this had confused the public about the legal difference between editorial and commercial businesses?

The Head of Editorial Standards said that the complainant seemed to be implying that there may be some understanding or contract between Watchdog and Mr Lewis whereby his appearance is linked to mentions and references and links to his company website. Given that there were no direct references, visual or verbal, to his website in this item, or links to his website, the Head of Editorial Standards did not believe that there was evidence to support this complaint. Further, she said that an independent editorial adviser had been told by the Watchdog programme team that there was no formal or informal agreement to credit Martin Lewis's company or website in the programme. The Head of Editorial Standards said it appeared to her that Watchdog had employed Martin Lewis as a consumer expert, in the same way as a financial programme may use an economist from, for example HSBC. She did not consider that there was a reasonable prospect of success

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for this aspect of the complaint.

The Head of Editorial Standards concluded that, overall, she did not believe that the appeal had a reasonable prospect of success and she did not propose to put it to the ESC.

The complainant requested that the Committee review the decision of the Head of Editorial Standards not to proceed with the appeal.

In response to the Head of Editorial Standards‟ comments about the lack of a direct reference to Martin Lewis‟s website, the complainant said that the phrase “Money Saving Expert” was a trademark and its use was therefore promotional. The complainant also raised new complaints relating to the “editorial line” of the programme and Ryanair‟s plans for its own pre-paid card. The Committee’s decision The Committee was provided with the complainant‟s appeal to the Trust, the response from the Head of Editorial Standards and the complainant‟s letter asking the Committee to review the Head of Editorial Standards‟ decision. The Committee was also provided with the Stage 2 finding from the Head of Editorial Complaints and the programme in question.

The Committee noted that some new complaints had been raised in the complainant‟s challenge to the Head of Editorial Standards‟ decision and it agreed that it would not consider these as they had not previously been raised with the Executive as was required by the BBC Agreement1. The Committee noted that the Ofcom finding which the complainant had included with the appeal was available at the meeting but it agreed with the Head of Editorial Standards that the specific circumstances of that decision were not relevant to the consideration of this complaint.

The Committee noted that the complainant also had made further, late, submissions to the Trust Unit. Although these were not in time to be included in the distribution of paperwork to the Committee, they had been brought to the meeting. The Committee noted that the complainant had already provided a response to the Head of Editorial Standards‟ decision and it would not take these additional, late submissions into account.

The Committee noted the complainant‟s point regarding the trademarked phrase “Money Saving Expert”; however, it considered that this was no different from naming the bank which the Head of Editorial Standards had given as an example in her response to the complaint. The Committee agreed that this was not a direct promotional link to Mr Lewis‟s website and there was no Editorial Guidelines issue.

The Committee noted the complainant‟s point that Mr Lewis‟s business derives a profit from people using his website to access the websites of cards such as those featured in the report. The Committee agreed, however, that the Watchdog report did not constitute direct endorsement of specific pre-paid cards over others, nor did it directly promote Mr Lewis‟s website. The Committee agreed that the programme was editorially justified in providing viewers with the information which it had done.

The Committee noted the complainant‟s argument regarding the way the FairFx and Kalixa cards were being marketed at the time of the Watchdog broadcast. The Committee agreed that the fact of whether or not these companies were specifically promoting their cards as a way of avoiding airline charges was irrelevant to any consideration of whether

1 90(3) The Trust should not have a role in handling or determining individual complaints in the first instance, except where the complaint relates to any act or omission of the Trust itself or of the Trust Unit. March 2012 issued April 2012 88

the programme was factually accurate to suggest that they could be used in this way at the time of broadcast.

The Committee also agreed that subsequent changes to the practices of the airlines, to which the complainant had referred, did not raise any concerns with regard to the question of whether the advice given in the report was factually accurate or editorially justified at the time of broadcast. The Committee agreed that the complaint did not have a reasonable prospect of success on appeal. The Committee therefore decided this appeal did not qualify to proceed for consideration.

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