OFCOM has quietly introduced a revised set of guidelines for the handling of complaints in respect of TV and radio advertising. The changes are small in number but potentially quite significant.
New Rules: Revised Ofcom Guidelines for the Handling of Standards Complaints and Cases in Advertising
On 1 December 2003, Ofcom, the UK's new communications super regulator, published "Guidelines for the handling of standards complaints and cases (in programmes, advertising and sponsorship)".
The document outlined the procedures to be followed by Ofcom in respect of complaints over broadcast advertising, once Ofcom officially came into being and took its full powers with effect from 29th December 2003.
They set out how and within what time frame complaints are to be made, how broadcasters are to be informed of those complaints and how they must respond and how investigations of complaints are to be processed. They also deal with the processing of requests for reviews of decisions and the sanctions for upheld complaints.
Broadly, they require complaints to be lodged within 42 days for radio ads and within 90 days for TV except satellite and cable where it is 60 days. In most cases, broadcasters or clearance centres on the wrong end of a complaint should respond within 10 days to a notification from Ofcom of a complaint. Up to two requests for review of an initial decision on a complaint will be considered and the review procedure will not allow continued airing of an advertisement, if at first instance the complaint in respect of it has been upheld and broadcasting of it required to be stopped.
What will change
In short order, Ofcom has now published slightly revised guidelines for the handling of standards complaints in respect of advertising. These have been effective from 5th April 2004. The revisions are not extensive. One includes additional wording stating that Ofcom will publicise on its website contact details of all broadcasters, complainants being encouraged to contact the broadcasters first if they have any complaints. Other changes are of more interest.
Revealing complainant's identity
A second change relates to the identity of a complainant. The earlier guidance indicated that if a case officer, on considering a complaint, decided that it should be taken further, the original complaint was to be sent to the advertiser concerned together with the name, but not the address of the complainant.
The revised guidance now makes it clear that both the name and the address of the complainant will be notified to the broadcaster at the point that they are notified that the complaint has been made and it is felt that it has substance. However a new related revision to the guidance states clearly that in exceptional cases, Ofcom will consider a complaint made by someone who wishes to remain anonymous, although it is not clear what those circumstances might be.
A related minor amendment changes "a complainant's identity may never be disclosed to a third party" to "a complainant's identity may only be disclosed to those with a direct interest in the matter complained". Clearly this was advisable since such information might need to be passed by a broadcaster to its advisors, for example, in order to seek advice on how to deal with the complaint.
Review/appeal procedure changes
Perhaps the most noteworthy changes take place in the section dealing with reviews, or "appeals" as they are now called.
First of all, a provision in the old guidance dealing with the furnishing of further evidence in the context of a review has now disappeared. The old guidance stated that if such further evidence is produced, then the case will not in fact be reviewed. It will be re-submitted to the case officer who handled the first investigation, with the new material. He or she would be asked to consider the new items and re-consider the case taking this into account.
All this wording has now gone from the new guidance, which in the context of appeals, does not make any reference to "further evidence" being submitted. One assumes from this that even if further evidence is provided in the context of an appeal, this will still be regarded as an appeal and will not go back to the original case officer.
Appeal request must be authorised
Another amendment here makes it clear that a request for an appeal must only be made with the "stated agreement of the chairman, chief executive or designated alternative" of a broadcaster or clearance centre concerned. Clearly there was a concern here regarding inadequately authorised appeal requests.
In the context of how appeal requests should be filed, there is a small change on whether appeal requests have to be by way of a full written statement of the grounds of appeal. Previously, the guidance said that in certain circumstances, Ofcom might be prepared to consider more informal requests for an appeal. Now the wording is as follows:
"In exceptional circumstances, we may receive the appeal verbally and record it for the complainant."
New appeal stage
Finally, perhaps the most important amendment in this part of the guidance is the inclusion of a further level of appeal.
The previous guidance allowed for two appeals in respect of an original finding. The first appeal was to be dealt with by a person who had no involvement in the case up until that point and was in a more senior position that the original decision maker. The second appeal was by way of an application to the Chairman of the Content Board who would decide whether or not to grant a further review. Once this appeal stage had been exhausted, that was the end of the internal appeal process.
In the new guidance, the first appeal is as before, and then there are not one but two further appeals.
The second appeal is before an Ofcom official at a yet more senior level than the first appeal handler. The request for this will normally be granted the guidance says, although Ofcom reserves the right to refuse further appeals. The conditions for this appeal are the same as for the first.
If after this second appeal, a broadcaster or clearance centre is still dissatisfied then it may request a final, third appeal by way of an application to the Chairman of the Content Board. In process and effect this is the same as the second appeal in the first guidance.
What happens next: The guidance is already in force and has been since 5 April 2004.