On 3 December 2024, the UK converged communications regulator, Ofcom, opened a consultation on proposed revisions to its General Procedures (the “Procedure(s)”) for investigating potential breaches of broadcast licences. This consultation seeks to update and refine the existing Procedures to ensure they remain effective and fit for purpose in the evolving broadcasting landscape.
Background of the Procedures
Ofcom published the Procedures for investigating breaches of broadcast licences, following consultation in July 2013 and last updated them in 2017.
The existing Procedures outline several essential actions for Ofcom, including initiating an initial assessment stage upon receiving a complaint, publishing lists of both assessed complaints that are not pursued and new investigations, and making details of investigation decisions publicly available to enhance transparency. Broadcasters are mandated to provide recordings within five working days upon request. Additionally, Ofcom has established key performance indicators, committing to assess complaints within 15 working days and to complete investigations within 50 working days.
The revised Procedures will complement other existing frameworks, such as the Procedures for Investigating Breaches of Content Standards for Television and Radio, the Procedures for the Consideration and Adjudication of Fairness and Privacy Complaints, and the Enforcement Guidelines.
What are the key proposed changes to the Procedures?
1. Publish a new and more detailed administrative priorities framework
The new framework aims to improve transparency and clarify Ofcom’s approach to initial complaint assessments and enforcement priorities. This will help broadcasters and complainants better understand where Ofcom’s resources are most effectively utilised and targeted.
The three main administrative priority factors that Ofcom will typically consider when deciding whether to continue beyond an initial assessment and, if relevant, launch an investigation into a broadcaster’s compliance with relevant requirements will be outlined in the new framework. These three factors are (i) the risk of harm or seriousness of the alleged conduct, (ii) the impact of addressing the alleged conduct, and (iii) the resource implications of continuing the assessment and, if relevant, conducting an investigation.
The proposed changes are expected to enhance Ofcom’s discretion, allowing it to more effectively and transparently consider key factors when deciding whether to launch an investigation. This will clarify that not every potential breach will lead to an investigation, with Ofcom focusing instead on cases where the benefits and potential consumer harm justify further action.
2. Sharing information about complaints with the broadcaster
Ofcom has clarified that it will only share a summary of the issues with the broadcaster and not share the complainant’s name. However, in rare cases, Ofcom may need to share the complaint’s actual wording or the complainant’s name if the broadcaster needs it to understand the complaint fully and defend themselves, or if necessary for Ofcom’s assessment and regulatory functions. Ofcom will inform the complainant and seek their consent before disclosing any confidential information, including their name.
The proposed change is likely to have a positive impact by clarifying Ofcom’s existing practice and fostering greater trust among vulnerable complainants, particularly those with protected characteristics. This could encourage more individuals to report harmful conduct, leading to better compliance by broadcasters and greater accountability. While the risk of vexatious complaints may increase, Ofcom’s procedures and External Contact Policy are prepared to manage this effectively.
3. No longer inform complainants directly of the outcome of Ofcom’s assessments
Complainants will no longer be notified directly about the outcome of their complaints, as these outcomes will be available online in Ofcom’s Bulletin. This change aims to streamline the process and make information more accessible in a centralised location. Additionally, automatic email responses to online complaints will be updated to inform complainants about how to find the outcome of their complaint. For complaints made via phone, text relay, or video relay, Ofcom will explore ways to provide this information, such as verbally through call handlers or via automated emails if an email address is provided.
The proposed changes are expected to enhance Ofcom’s efficiency in handling complaints by shifting resources from corresponding with complainants to ensuring broadcasters address harmful non-compliance. While the transition to primarily online communication may pose challenges for groups with limited internet access - such as the elderly or those in rural areas - Ofcom has proposed solutions, including offering alternative ways for these complainants to receive outcomes via phone or email upon request. This ensures that any adverse impact on these groups is minimised.
4. Set a time limit for making complaints
The proposed change is that complaints related to broadcast content should be made within 20 working days of the broadcast, while complaints about off-air matters should be made as soon as possible. Ofcom may amend this 20-day deadline in specific cases for fairness or proper investigation, and complainants seeking an extension must explain why in their submission.
This should benefit broadcasters by allowing Ofcom to request recordings and information within a manageable timeframe, typically no later than 20 working days after the broadcast. This change will also benefit complainants by providing a clear and specific time limit, making the process easier to understand, especially for neurodiverse individuals. Additionally, it will enable Ofcom to apply its administrative priorities framework more consistently, focusing resources on cases with the greatest potential harm, benefiting audiences and the target community.
Ofcom are also proposing several changes to restructure, simply and clarify the Procedures to make them easier to follow.
The proposed revised Procedures are set out in Annex 6, published alongside the consultation document. Ofcom have also published the existing Procedures in the same template in Annex 7.
Next Steps
The consultation period will be open for 12 weeks and will end on 25 February 2025.
If, after reviewing the consultation responses, Ofcom decide to implement an updated version of the Procedures, Ofcom will publish it alongside the statement. Since the proposed changes won’t require broadcasters to alter their own processes, the new Procedures will take effect immediately upon publication. However, any ongoing cases will be managed under the Procedures that were in place when they were opened.
Co-authored by Florentina Terholli, trainee solicitor at CMS.
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