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'And if Russell Brand and Jonathan Ross had been newspaper journalists?'

Posted: 30/10/08 By: Martin Moore
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This article was originally published as a blog post on Martin Moore's blog and discusses the recent 'prank calling' incident involving BBC radio presenters Russell Brand and Jonathan Ross. Moore is the director of the Media Standards Trust.

Suppose it had been two newspaper journalists who made the call to Mr Sachs, put the video on the newspaper's website and published an article about it. How would the response have been different?

Well, it would have received very little coverage in the press because most papers still abide by the rule that they will not criticize one another's behaviour - particularly on taste and decency issues (there are notable exceptions but these tend to be buried within the media sections of websites like the Guardian).

It is very unlikely it would have been picked up by the broadcasters since they too tend to avoid moralizing about members of the British press (note how little mention there has been on the BBC, for example, of the indictment of various newspapers for their McCann coverage).

Without the oxygen of publicity it is unlikely there would have been many complaints. As Martin Belam has pointed out, there were only two complaints after the original Ross-Brand broadcast on October 18. The rest of the complaints (over 27,000 and rising) came after the broadcast was covered by the Mail on Sunday and other newspapers.

Even had people complained in their thousands, we would not have known. The Press Complaints Commission - the press equivalent of the BBC Trust or OFCOM - does not release figures about the number of complaints on a specific issue. It waits until the end of the year and then tots up the total number of complaints - and even then groups them by which clause of the editorial code they fall under (e.g. accuracy, privacy). And all complaints, excepting those from Mr Sachs and his granddaughter, would have been thrown out anyway because they would be counted as 'third party complainants' who are not directly affected.

And if Mr Sachs himself had complained? Or his granddaughter?

If they had complained to the newspaper there is little likelihood they would have received a response. The Federation of Poles in Great Britain wrote to the Daily Mail a few months back, complaining that the paper was deliberately encouraging discrimination against immigrants, in particular Poles and their families. It cited more than 50 Daily Mail articles that it argued contained anti-Polish sentiment (including: 'Polish Borat claims groping women is normal in Eastern Europe', 'Polish immigrants take £1bn out of UK Economy', and 'Fears for NHS & Schools as 1,000 Polish children are born every month'). After the Daily Mail refused to respond the Polish community appealed to the PCC which arranged for a letter to be published in the paper.

And if they had complained to the Press Complaint Commission? Their complaint would have been rejected. The Commission explicitly excludes taste and decency issues from its remit.

The result? If it had been two newspaper journalists [making the phonecalls] there almost certainly would have been virtually no press criticism, few complaints, no apologies, no suspensions, no resignations, no inquiries, no fines.

But because it happened at the BBC? Blanket front page coverage in the national press, over 27,000 complaints, statements by the leaders of both main political parties, the suspension of both presenters (and resignation of one), an official inquiry, the potential of a significant fine for the broadcaster (to be paid out of the licence fee).

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Comments

Martin, This was not a "prank call"! It was an offence under the Communications Act 2003. If I made use of the telephone system by repeatedly sending messages that were grossly offensive, of an indecent, obscene and menacing character for the purpose of causing annoyance, inconvenience or needless anxiety to Andrew Sachs and/or his grand daughter Georgina Baillie then I would be guilty of an offence under Section 127 of the Communications Act 2003. As such I would be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both. However if I sent the offensive messages in the course of providing a programme service within the meaning of the Broadcasting Act 1990 then I would not be liable. It would appear that there is one law for the license payers and another for the dismal duo of Brand and Ross. However Brand and Ross were not broadcasting at the time the offensive messages were sent; they were recording. It is right that Ofcom investigate the BBC for a possible breach of the Broadcasting Act. But why have Brand and Ross not been prosecuted under the terms of Section 127 of the Communications Act 2003?

Peter Smith - 30/10/08

Just to clarify the word 'prank' was added by Journalism.co.uk in the intro to this piece, not by Martin. However, Peter's point still stands.

Laura Oliver - 30/10/08

Peter, First, as Laura says, I never used the word 'prank' either in the intro to my blog or in the blog itself. Fair point about the Communications Act. Though I was trying to illustrate that, by comparison with broadcasting, were a newspaper journalist to do something similar it is virtually certain nothing would be done by the newspaper or the PCC. And probably not by the police either, going by their response to the evidence provided by Operation Motorman (in which 305 national newspaper journalists were found to have been gathering significant amounts of personal information, in breach of Section 55 of the Data Protection Act, with the help of a private detective)

Martin Moore, Director, Media Standards Trust - 30/10/08

The person who wrote the first comment is clearly very worked up, not sure why though. The common sense answer to why there have been no prosecutions under the telecommunications act – it was a joke, no intent Legal reason for this – THERE IS NO COMPLAINANT, the victims in this alleged case (I use the term ‘case’ very loosely indeed) is not pursuing any allegation Rant over. No idiotic replies please

Christian Chilton, employed - 30/10/08

Christian, "worked up"? "I'm mad as hell and I'm not going to take it any more!" Brand and Ross broke the law! And they haven’t been held to account! Section 127 of the Communications Act 2003 is shown below. Subsection 4 is not an out for them as they were not broadcasting when they made the obscene calls. When the BBC broadcasted the radio show they put the evidence of the crime in the public domain. The radio show may have breached sections of the Broadcasting Act. But Brand and Ross breached Section 127 of the Communications Act. Read it! If you made obscene calls you would likely be prosecuted. A young person would likely have an ASBO served on them. Brand and Ross seem to be above the law. Have you ever heard the expression “Qui tacet consentit” (silence implies consent)? Andrew Sachs (78) was likely subjected to similar abuse when he was a young person in Berlin. He was lucky enough to get out and come here. Do the math… 127 Improper use of public electronic communications network (1) A person is guilty of an offence if he— (a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) causes any such message or matter to be so sent. (2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he— (a) sends by means of a public electronic communications network, a message that he knows to be false, (b) causes such a message to be sent; or (c) persistently makes use of a public electronic communications network. (3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both. (4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

Peter Smith - 30/10/08

Apples and oranges, Martin. Journalists attempt to self-regulate, and while I agree that especially with some newspapers (and while we villify the Daily Mail and the Daily Express, we should also note that all newspapers can display disturbing tendencies toward) this self-regulatory model does need to be enforced better, newspaper journalists at least make a passing attempt at some kind of topical approach to a story. At least if the Daily Mail targets Poles, Muslims or other minority populations that represent the 'other', it does so with a belief that it is doing the Right Thing, and that it is responding to genuine fears its readership has (not an excuse - the reasons are primarily economic and feed into that horrible chicken/egg cycle of xenophobia). Ross and Brand, however, did this in the name of comedy, not journalism - whatever your taste in comedy, it was the two presenters directly insulting a man and his family for no reason. I don't believe that two print journalists would have done something like this in the first place (no real audience for 'pranking'), or secondly that they would have got away with it (there is some regulation, at least). It just so happens that we have a greater say in the BBC output - effectively, the licence payer has the role of the advertiser in PSB. Apples and oranges, Martin.

Chris Cherry - 30/10/08

Surely the main difference between printed and electronic media is that one is not actually 'telecommunications' per se. That is, till you post the article on the 'ternet. The law against transmitting obscenities and indeed, any matter that may cause offence, harks right back to the start of telecommunications, under what is known as the Wireless and Telegraph Act. This has, obviously evolved into the Communications Act. Besides all of that, Common Sense decrees that one does not brag about sexual conquests to someone's grandparents and call it comedy. IMHO, they should both be prosecuted - personally. They contravened the Communications Act the minute they swore on the telephone. That offence may well have been commited with the knowledge of the BBC. It is true, though, that someone at the BBC sanctioned the broadcast of the call - a second and separate contravention of the act.

Ian - 31/10/08

Comedy can be rather subjective and sometimes close to the bone. Brand actually did have sex with Andrew Sachs granddaughter, in my opinion - it’s a joke gone wrong. This was Andrew Sachs opinion also. Kiss and tell is not illegal, if it were the likes of Jodie Marsh would be serving life in Belmarsh Lets now look at the granddaughter, she is a member of a rather distasteful gothic group, the ‘satanic sluts’. I hardly think she would be offended by a swear word being used by Ross. In anycase the group are promoting the European tour, the term ‘like a flea on dogs back’ comes to mind. Agree to disagree perhaps?

Christian Chilton, employed - 31/10/08

Just to clarify. Jonathan and Russell did not commit an offence under the Communications Act 2003. They may however have committed an offence under the Protection from Harassment Act 1997 or even the Malicious Communications Act 1988. Given that their argument would most likely be that they did not intend their act to be "malicious", and given the less serious nature of their offence, then the most likely outcome would be that the police would not pursue it but the offended party might. However, given that Mr Sachs has clearly indicated that he wants no further action then it is highly unlikely that any individual will face prosecution. Given all that, they made a joke. Some people may not have liked it, but lots of people thought it was funny. Now just let this go. Let us have Jonathan back and let us have the Russell Brand show back. Thank you. Jen

Jen Johnson - 08/11/08

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