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External Review of Decisions 2017



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Date published: June 2017

Reviewer: Linda Clark, Kensington Swan, with assistance from Abby Ward

Scope

The BSA invited Linda Clark, Special Counsel at Kensington Swan and a former journalist and broadcaster, to undertake an independent review of five Broadcasting Standards Authority (BSA) decisions considering classifications and timebands, under the Programme Information standard (formerly Responsible Programming) and the Children’s Interests standard for pay and free-to-air television. The review was commissioned to provide feedback to the BSA, so that it can consider any areas for improvement in the delivery of its functions, or its application of the particular standards assessed.

We asked Ms Clark to assess whether the way the Authority interprets these standards and its reasoning is appropriate and reasonable in these decisions, having regard to:

  • the legal robustness of the decisions;
  • the quality of the legal reasoning;
  • readability and clarity of the decisions;
  • the degree to which the decisions provide guidance and useful clarity on the Authority’s approach; and
  • consistency of approach (where possible given the small sample size).

Results

Ms Clark concluded that the BSA’s decisions are generally legally robust, well-reasoned, readable and clear. Ms Clark commented that the BSA is to be commended for its skilful management of a substantial workload that requires navigating the evolving social expectations and values that broadcasting standards are designed to reflect.

In terms of the application of the standards in each case, Ms Clark agreed with the outcomes reached. She expressed some disquiet about the application of the Programme Information and Children’s Interests standards in relation to one decision concerning Criminal Minds and the broadcast of allegedly strong adult content close to the 8.30pm transition into Adults Only time.

Ms Clark identified areas for improvement in the Authority’s decisions which she considered would enhance the effectiveness of BSA’s decisions in informing and educating broadcasters and the public about the boundaries of freedom of expression in a liberal, democratic society, and the application of the standards.

The Authority has considered Ms Clark’s suggested improvements for its decisions and intends to adopt the following recommendations:

  • including in each written decision a more detailed discussion on freedom of expression and how the balancing exercise is undertaken to assess whether limits on that freedom is justified;
  • more clearly articulating some of the contextual ‘terms of art’ which the Authority has come to use over time (so that they are more readily understood by a first-time reader); and
  • greater use of, and reference to, past decisions, which often inform the decisions reached by the Authority in each case.

Decisions

The decisions considered were: