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COVID-19: Ofcom decisions on fake news

01 May 2020

While much ‘fake news’ seems to be a particular problem in relation to information transmitted via social media networks of different types, the traditional media is not immune from this. The role of the broadcast media is particularly important given that they still attract high levels of audience trust, especially during the current pandemic.

Ofcom has recently announced that it will treat complaints in relation to the coronavirus as a matter of priority and on 23 March 2020 issued a note to broadcasters on coronavirus. Rather than relying on accuracy or impartiality provisions in its Broadcasting Code (rule 5) or rule against misleading audiences (rule 2.2), which it has used, for example, in relation to global warming, Ofcom here is relying on provisions relating to harm in rule 2.1 Ofcom Broadcasting Code.  It states:

“Generally accepted standards must be applied to the content of television and radio services… so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material.”

In terms of harm, Ofcom’s recent guidance identified the following three categories in a non-exhaustive list:

  • health claims related to the virus;
  • medical advice;
  • accuracy or misleading material in relation to the virus or public policy regarding it.

Ofcom has already issued three decisions under an expedited process. The first decision was against a Community radio station, the second two concerned London Live, a local television channel, and the third involved ITV.

Uckfield FM

The Uckfield FM decision concerned a talk show in which a guest speaker made a number of unsubstantiated claims about coronavirus, including making a link between the roll-out of 5G and the spread of coronavirus, and throwing doubt on government policy relating to the coronavirus.

Ofcom received two complaints. The broadcaster accepted that the quality of the interview was not acceptable and it was reviewing its interview procedures.

Ofcom assessed the complaint bearing in mind the sensitivity of the context, considering that:

“listeners would have been particularly vulnerable to any misleading or unsubstantiated claims that could be potentially harmful to them, at a time when they were highly likely to be seeking information about how to protect themselves and others from the spread of the virus.”

Ofcom found a violation of rule 2.1, finding that the views expressed had the potential to undermine compliance with Government policy and that they were potentially harmful.

Ofcom found that the broadcaster had taken inadequate steps to protect the audience from harm. The guest, a registered nurse, was positioned as a speaker with authority and the guest’s views were not really challenged.

Further, a general disclaimer at the beginning that the guest’s views were “not intended to replace any advice given by your medical practitioner”, was insufficient given that in the rest of the interview the disclaimer was directly contradicted.

Ofcom referred to research that found that warnings and disclaimer have a questionable effect if contradicted in this way. While Ofcom took into account Uckfield’s apology and steps to improve, Ofcom still found a serious breach and directed the licensee to broadcast a summary of the decision as directed by Ofcom.

London Live

The London Live decision concerned an interview programme on a local television channel hosted Brian Rose. In the programme, a pre-recorded interview with David Icke was broadcast. In the interview, David Icke expressed his view that the world is controlled by a cult which wants to create “a beyond Orwellian global state in which a tiny few people dictate to everyone else” and that the responses by government were an exploitative over-reaction to the threat posed. Ofcom received 48 complaints.

London Live argued that it had removed any content that could have been considered to be medical advice or contrary to government guidance, even taking into account changes in understanding about the virus arising between the date the interview was recorded and aired.

London Live also argued that the media must hold those with power to account and that it “would be concerned if Ofcom censored anyone that questioned the official government version of events,” especially given the current constraints on civil liberties. The issues raised by David Icke (impact of lockdown; accuracy of testing; use of tracking technology and compulsory vaccinations) were areas of legitimate debate even among the medical community. The interviewer, although not adopting a combative style, did at points correct some of David Icke’s statements and was clearly sceptical about the ideas put forward.

Ofcom’s decision acknowledged that freedom of expression is a relevant factor and that broadcasters should be able to challenge Government policy. Nonetheless, broadcasters must provide adequate protection to audiences.  Ofcom noted the sensitivity of the subject, especially given that London has been significantly affected by the virus; in its view, health claims can be specially harmful to those who are vulnerable.

David Icke cast doubt on the use of vaccines and, significantly, “cast doubt on the motives behind the official health advice aimed at reducing the spread of the virus.”  His views went beyond holding Government to account and discussing the effectiveness of the Government’s strategy to deal with the pandemic. The claim that the UK government, other governments and organisations including the WHO were serving a cult aiming to “transform the world economic order into this technocratic AI controlled tyranny” had the potential to undermine confidence in government policy.

The disclaimer and the introduction of David Icke as ‘a professional conspiracy theorist’ provided insufficient protection given his repeated assertions that were largely unchallenged. Further the introduction re-affirmed his authority through the mention of his thirty years’ experience in this area. Ofcom found there to be a serious breach and is considering whether to impose a sanction.

This Morning

This Morning, broadcast by ITV, is a magazine programme. The investigation related to comments made in a segment of the programme dealing with coronavirus scams and fake news. The programme’s consumer editor gave the example of the stories about the claimed link between 5G and coronavirus, describing them as “ridiculous”. Her co-presenter, Holmes, then commented that:

“what I don’t accept is mainstream media immediately slapping that down as not true when they do not know it’s not true. No-one should attack or damage or do anything like that. But it is very easy to say it is not true because it suits the state narrative. That’s all I would say as someone with an enquiring mind.”

The consumer editor then made the comment that having inquiring minds involved being more questioning on ‘these platforms.’ Subsequently, Holmes issued a statement clarifying that he did not support the link between 5G and coronavirus. Ofcom received 755 complaints.

Ofcom found that Holmes’s comments had the potential to do harm. It then considered whether ITV had done enough to protect the audience – taking into account specifically the views of the consumer editor who had made clear that there was no truth in the 5G rumours and who – as a consumer editor – had a voice of authority.

Again Ofcom highlighted the sensitivity of the context. It noted that the attacks on 5G masts, by damaging the communications systems, have caused significant harm to the public at a time of crisis. Ofcom thought that Holmes’s comments were ambiguous and appeared to challenge the consumer editor’s strong rejection of any link between 5G and coronavirus purely on the basis that it was the stated view of the UK authorities. Those comments could therefore have undermined people’s trust in the views of those in authority. The fact that Holmes is a very well-know presenter made him in this context a figure of authority, carrying greater weight.

The views of the consumer editor, however, were a strong factor in mitigating the damage, taking into account the overall context of the discussion and the subsequent clarification. Ofcom decided not to investigate further. It did, however, provide guidance to ITV, reminding it about the risks in discussing unproven claims and theories, and that presenters should act responsibly and their role is particularly important in times of crisis.

Comment and themes

Ofcom has emphasised that in determining harm and the level of appropriate protection, context is important. Factors Ofcom will take into account include: the service on which the material is broadcast, the degree of harm likely to be caused, the likely expectation of the audience and the effect of this material on viewers who may come across it unawares.

More specifically, Ofcom will consider the severity of the situation (whether in relation to individual circumstances or the situation in society in general); whether the material was targeted at a particularly vulnerable audience; whether the claims were made by a speaker who is portrayed as having authority; the existence or conversely the absence of a range of information or views, and the giving of advice on limited information.

Here, Ofcom across all three decisions emphasised the vulnerability of members of an audience in general during the pandemic, especially as they were highly likely to be seeking information about how to protect themselves and others from the spread of the virus. This approach appears to be taking into account findings from audience research on health claims which – among other points – suggested that those with serious health conditions would be more vulnerable to (erroneous) health claims.

One common theme through the three decisions is whether the government’s policies in relation to COVID-19 would be undermined. While Ofcom accepted that the Government is not immune from criticism (recently complaints about Piers Morgan on Good Morning Britain, who strongly challenged a minister on the Government’s handling of the coronavirus, were dismissed), it seemed concerned when commentators doubted Government’s motives (without evidence). It is unclear whether Ofcom would take a different position if other authoritative views were included in the programme, or whether the fact that this is being assessed as a matter of harm rather than under the impartiality rules, means that the harm cannot be undone through the inclusion of a range of voices. It is also worth noting that the harm here is not direct harm from the impact of the comments themselves but arguable indirect harm arising from what happens if people do not follow government advice.

While genre is not a determining factor, it can be seen that factual programming might be more open to concerns in this context rather than other programming. All the cases here, concerned factual but non-news programming.  All were chat shows and two concerned the way the interview was carried out; the third related to off-the-cuff remarks by the presenter. It seems that broadcasters will need to take care about the quality of the persons they invite as guests on chat shows, as well as the approach taken towards the interview.

In both Uckfield and London Live, Ofcom was critical that the guests were not sufficiently challenged by the interviewer/host. Ofcom also seemed to suggest that generic disclaimers (e.g. ‘these views are not those of the programme’ or ‘make sure to take your own advice from a qualified person’) will not constitute sufficient safeguard when the substance of the interview allows the guest to reinforce his or her message.

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