The secret censorship by the BBC of callers to phone-ins
Robert Henderson
Commissioner considers that where information is held for
non-journalistic/artistic/literary purposes and is only held to a
trivial or insignificant extent for the purposes listed in Schedule 1,
then the BBC will be obliged to comply with its obligations under Parts
I to V of the Act.".
That being so, I think his decision to decide that the banning of
callers without telling them they have been banned constitutes
significant editorial control, input etc is simply perverse.
The decision as to who should appear on a programme is a journalistic
one. However, that is not what is at issue here. The crux of this matter
is the hiding of both the censorship from the individual and the reasons
for censoring callers. It is difficult to see how that counts as
journalistic purposes. They are not protecting sources or hindering
ongoing or future investigations, which is the justification given for
the equivalent exemption under the DPA. Rather, all they are doing is
covering up their censorship and their reasons for it. Moreover, the BBC
being a public body primarily funded by a tax granted by Parliament,
there is an onus on it to account for its expenditure.
I won't take it forward because the only appeal is to the Information
Tribunal which carries the risk of costs being awarded against
appellants.
What this case has proved is that the BBC surreptitiously censor callers
to phone-ins. They do this by using a phone system which allows them to
flag up numbers which they then refuse to answer. The caller is unaware
of what is happening. They make the connection and the phone rings but
is never answered. The Information Commissioner's decision means the BBC
can censor callers without the subject of censorship knowing and without
having to explain their reasons. RH
Information Commissioner’s Office Promoting public access to official
information and protecting your personal information
Mr Robert Henderson
3 November2009
Dear Mr Henderson-
Freedom of Information Act 2000
BBC
Please find enclosed a Decision Notice providing the Commissioner’s
decision as to whether the BBC has complied with its duties under the
Freedom of Information Act 2000 (the “Act”). This Decision Notice
relates to your complaint about a request for information that you
submitted to the BBC on 24 September 2007. Following a recent High Court
Decision, your complaint has been carefully considered and in this case
the Commissioner has found that your request was for information held
for the purpose or journalism, art or literature and is therefore not
disclosable under the Act.
The Decision Notice outlines the findings of the Commissioner following
the recent High Court decision in which the High Court clarified the way
information held by the BBC is covered by the Act. The decision of the
High Court is binding on the Commissioner but we appreciate that the
outcome will be disappointing to you given the time you have waited for
an outcome.
If you disagree with any aspect of the attached Decision Notice, you
have the right to appeal to the Information Tribunal. Contact details
for the Tribunal are included in the Decision Notice.
The Decision Notice includes details about you and the public authority.
This is to ensure that there is no doubt as to the request for
information to which the Notice relates. The Commissioner will publish
the decision on the ICO website, but will remove all names and addresses
of complainants.
Although public authorities may choose to reproduce this Decision
Notice, the Commissioner would expect that they would take similar
steps. The Commissioner considers that these may be necessary in order
to comply with
the requirements of the Data Protection Act.
I hope the above information is of assistance.
Yours sincerely
Paddy Dillon
Senior Complaints Officer
Information Commissioner’s Office, Wycliffe House, Water Lane,
Wilmslow, Cheshire, SK9 5AF t: 0845 630 6060 f: 01625 524510 e:
ma...@ico.gsi.gov.uk w: ico.govuk
Decision Notice
Reference: FS50188859 Freedom of Information Act 2000 (Section 50)
Date: 3 November 2009
Public Authority: British Broadcasting Corporation
Address: 2252 White City
201 Wood Lane
London
W12 7TS
Summary
The complainant requested information relating to the BBC’s use of
systems to block particular callers from going on air during
‘phone-in’ broadcasts. The BBC refused to comply with the requests
under section 12 of the Act on the grounds that doing so would exceed
the ‘appropriate limit’. However, in light of a recent decision by
the High Court, the Commissioner’s decision is that the request fell
outside the scope of the Act because it relates to information held for
the purposes of journalism, art or literature. Therefore the BBC is not
obliged to comply with Parts I to V of the Act. The Commissioner’s Role
1. The Commissioner’s duty is to decide whether the BBC has complied
with its duties under the Freedom of Information Act 2000 (the "Act").
This Notice sets out his decision. The Request
2. The complainant wrote to the BBC on 24 September 2007 and requested
the following information regarding callers blocked from phone-ins on
programmes:
"(1) whether the BBC has a system capable of doing what I suspect has
been done to block callers.
(2) if the system exists how often has it been used in the past five
years?
(3) If it exists who authorised it?"
3. The BBC responded on 19 October 2007 and provided the complainant
with the information relevant to request 1. However, it refused to
comply with requests 2 1 Reference: FS50188859 and 3 on the grounds that
doing so would require it to work beyond the ‘appropriate limit’ of
18 hours. It therefore applied section 12 of the Act.
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4. On 22 October 2008 the complainant requested an internal review of
the BBC’s decision to refuse to comply with the requests.
?
5. On 8 November 2007 the BBC wrote to the complainant with its internal
review response and upheld the decision in the original response to the
requests.
The Investigation
Scope of the case
6. On 8 January 2008 the complainant contacted the Commissioner to
complain about the way his requests for information had been handled.
The information relevant to request 1 was disclosed to the complainant.
Therefore the Commissioner has therefore only considered and made a
decision in respect of requests 2 and 3. Chronology
7. The Commissioner exchanged correspondence with the BBC regarding its
decision not to fully comply with requests 2 and 3 on the basis that
section 12 of the Act applied.
?
8. The BBC is listed in schedule I part VI of the Act as a public
authority as follows: "The British Broadcasting Corporation, in respect
of information held for purposes other than those of journalism, art or
literature." This has been commonly referred to as the ‘derogation’.
9. Whilst the case was open, on 2 October 2009, the High Court handed
down its judgments in relation to two appeals it had heard involving the
application of the ‘derogation’ by the BBC. Both judgments found in
favour of the BBC. The Commissioner has applied the findings of the two
judgments to the facts of this case.
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10. Following the High Court decision, the BBC informed the Commissioner
that it considered the information relevant to requests 2 and 3 to be
within the scope of the derogation.
2 Reference: FS50188859
Analysis
Substantive Procedural Matters
Jurisdiction
11. Section 3 of the Act states:
"3. – (1) In this Act "public authority" means –
(b)…. any body…which –
(i) is listed in Schedule 1……"
The entry in relation to the BBC at Schedule 1, Part VI reads: "The
British Broadcasting Corporation, in respect of information held for
purposes other than those of journalism, art or literature" Section 7 of
the Act states: "7. – (1) Where a public authority is listed in
Schedule 1 only in relation to information of a specified description,
nothing in Parts I to V of this Act applies to any other information
held by the authority". The BBC has argued that the construction of
sections 3, 7 and Schedule 1 means that the BBC is not a public
authority where it holds the requested information for the purposes of
journalism, art or literature. Consequently, the Commissioner would not
have jurisdiction to issue a decision notice given the wording of
section 50.
12. This issue has been considered by the House of Lords in the case of
Sugar v BBC1. By a majority of 3:2, the Lords found in favour of the
Appellant, Mr Sugar, in concluding that the Commissioner does have
jurisdiction to issue decision notices regardless of whether the
information that has been requested is derogated. The Commissioner
adopts the reasoning set out by Lord Hope at paragraphs 54 and 55 where
he said: "54. Section 7(1) says that where a public authority is listed
in Schedule 1 only in relation to information of a specified
description, nothing in Parts I to V of the Act applies to any other
information held by the authority. What it does not say is that, in that
case, the authority is a hybrid – a "public authority" within the
meaning of the Act for some of the information that it holds and not a
"public authority" for the rest. The technique which it uses is a
different one. Taking the words of the subsection exactly as one finds
them, what it says is that nothing in Parts I to V of the Act applies to
any other "information" held by "the authority". This approach indicates
that, despite the qualification that appears against its name in
Schedule 1, the body is a public authority within the meaning of the Act
for all its purposes.
1 Sugar v BBC [2009] UKHL 9
3 Reference: FS50188859
That, in effect, is what section 3(1) of the Act provides when it says
what "public authority" means "in this Act". The exception in section
7(1) does not qualify the meaning of "public authority" in section 3(1).
It is directed to the information that the authority holds on the
assumption that, but for its provisions, Parts I to V would apply
because the holder of the information is a public authority." 2 BBC v
Steven Sugar & The Information Commissioner [2009] EWHC 2349 (Admin) 3
BBC v The Information Commissioner [2009] EWHC 2348 (Admin)
55. ……The question whether or not Parts I to V apply to the
information to which the person making the request under section 1(1)
seeks access depends on the way the public authority is listed. If its
listing is unqualified, Parts I to V apply to all the information that
it holds. If it is listed only in relation to information of a specified
description, only information that falls within the specified
description is subject to the right of access that Part I provides. But
it is nevertheless, for all the purposes of the Act, a public
authority".
13. Therefore, the Commissioner has jurisdiction to issue a decision
notice on the grounds that the BBC remains a public authority. Where the
information is derogated, the Commissioner considers that the BBC has no
obligations to comply with Parts I to V in respect of that information.
?
14. The Commissioner will first determine whether the requests are for
information held for the purposes of journalism, art or literature and
if therefore the BBC is required to comply with Parts I to V in respect
of the requests. Derogation
15. As mentioned previously, the scope of the derogation has been
considered by the High Court in the cases of the BBC v Steven Sugar and
the Information Commissioner [EW2349]2 and the BBC v the Information
Commissioner [EW2348].3 In both decisions Mr Justice Irwin stated: "My
conclusion is that the words in the Schedule mean the BBC has no
obligation to disclose information which they hold to any significant
extent for the purposes of journalism, art or literature, whether or not
the information is also held for other purposes. The words do not mean
that the information is disclosable if it is held for purposes distinct
from journalism, art or literature, whilst it is also held to any
significant extent for those purposes. If the information is held for
mixed purposes, including to any significant extent the purposes listed
in the Schedule or one of them, then the information is not
disclosable." (para 65 EA2349 and para 73 EW2348).
16. The Commissioner interprets the phrase "to any significant extent",
when taken in the context of the judgment as a whole, to mean that where
the requested information is held to a more than trivial or
insignificant extent for journalistic, 4 Reference: FS50188859
artistic or literary purposes the BBC will not be obliged to comply with
Parts I to V of the Act. This is the case even if the information is
also held for other purposes.
?
17. For completeness, the Commissioner considers that where information
is held for non-journalistic/artistic/literary purposes and is only held
to a trivial or insignificant extent for the purposes listed in Schedule
1, then the BBC will be obliged to comply with its obligations under
Parts I to V of the Act.
?
18. Thus, provided there is a relationship between the information and
one of the purposes listed in Schedule 1, then the information is
derogated. This approach is supported by Mr Justice Irwin’s comments
on the relationship between operational information, such as programme
costs and budgets, and creative output: "It seems to me difficult to say
that information held for ‘operational’ purposes is not held for the
‘purposes of journalism, art or literature." (para 87 EW2348)
19. The information relevant to the request need not be journalistic,
artistic or literary material itself. As explained above all that needs
to be established is whether the requested information is held to any
significant extent for one or more of the derogated purposes of art,
literature or journalism.
?
20. The two High Court decisions referred to above related to
information falling within the following categories:
?
? Salaries of presenters / talent
? Total staff costs of programmes
? Programme budgets
? Programme costs
? Payments to other production companies for programmes
? Payments to secure coverage of sporting events and other events
? Content of programmes / coverage of issues within programmes In
relation to all of the above Mr Justice Irwin found that the information
was held for operational purposes related to programme content and
therefore to a significant extent for the purposes of journalism, art or
literature.
21. The information requested in this case concerns the use of systems
to block or ban callers from being featured on BBC phone-in programmes.
The Commissioner recognises that the High Court cases did not
specifically consider this type of information. Nevertheless the
Commissioner considers the comments made by Mr Justice Irwin regarding
the need for a relationship between the requested information and the
derogated purposes are relevant and therefore he has considered them
here.
?
22. The BBC has explained that it operates a variety of telephone
systems across its different departments relating to its phone-in
programmes. These systems have different capabilities to block calls
from telephone numbers which have previously been used by abusive or
nuisance callers. For example, the BBC has explained 5 Reference:
FS50188859 that the telephone system used for phone-in programmes by
Radio 5 has a function allowing the operator to place a ‘warning’ or
‘banned’ flag against a telephone number following an undesirable
call. If a call is received from that telephone number in future, the
operator will be alerted to the ‘warning’ or ‘banned’ flag and
can choose not to answer the call and therefore not put the call through
to the programme.
?
23. Request 2 asked for details of the number of times the telephone
systems have been used to block calls in the past 5 years. The use of
telephone systems to identify certain telephone numbers and decide
whether or not to allow the callers to feature on phone-in programme is
a tool used to inform decisions about the broadcast output of the BBC. A
decision that a caller previously deemed abusive or a nuisance should
not be allowed to go on air is an editorial decision about programme
content. The Commissioner is satisfied that information about the number
of times these blocking systems have been used in the last five years
would also be used to inform the BBC’s editorial decisions such as
whether a phone-in format for a particular programme and if so what sort
of telephone system is appropriate. Therefore, the Commissioner
considers that the information relevant to request 2 is held to a
significant extent for the purposes of journalism, art or
literature.
?
24. The Commissioner also notes that request 3 asks for the names of
those who authorised the use of the systems to block callers. The BBC
has explained that the telephone systems in place will vary depending on
each department’s need, and the authorisation of each particular
system would be approved by the appropriate senior manager based on
their department’s assessed need. In the Commissioner’s view the
identity of managers who made the decision to put in place a telephone
blocking system to assist staff who must decide the content of BBC
output is itself information about an editorial decision. It is
information about who is responsible for that decision and therefore it
is held to a significant extent for the purposes of art, literature or
journalism.
?
25. In view of the above, the Commissioner has found that the request is
for information held for the purpose of journalism, art or literature
and that the BBC was not obliged to comply with Parts I to V of the Act.
The Decision
26. The Commissioner’s decision is that as the request is for
information held for the purposes of journalism, art or literature the
BBC was not obliged to comply with Part I to V of the Act in this case.
Steps Required
27. The Commissioner requires no steps to be taken.
6 Reference: FS50188859
Right of Appeal
28. Either party has the right to appeal against this Decision Notice to
the Information Tribunal. Information about the appeals process may be
obtained from:
Information Tribunal
Arnhem House Support Centre
PO Box 6987
Leicester
LE1 6ZX
Tel: 0845 600 0877
Fax: 0116 249 4253
Email: informati...@tribunals.gsi.gov.uk.
Website: www.informationtribunal.gov.uk
If you wish to appeal against a decision notice, you can obtain
information on how to appeal along with the relevant forms from the
Information Tribunal website. Any Notice of Appeal should be served on
the Tribunal within 28 calendar days of the date on which this Decision
Notice is served. Dated the 3rd day of November 2009 Signed
………………………………………………..
Jo Pedder
Senior Policy Manager
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
7 Reference: FS50188859
Legal Annex
General Right of Access
Section 1(1) provides that -
"Any person making a request for information to a public authority is
entitled –
(a) to be informed in writing by the public authority whether it holds
information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him."
Section 1(2) provides that - "Subsection (1) has the effect subject to
the following provisions of this section and to the provisions of
sections 2, 9, 12 and 14."
Section 1(3) provides that –
"Where a public authority –
(a) reasonably requires further information in order to identify and
locate the information requested, and
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(b) has informed the applicant of that requirement, the authority is not
obliged to comply with subsection (1) unless it is supplied with that
further information."
Section 1(4) provides that –
"The information –
(a) in respect of which the applicant is to be informed under subsection
(1)(a), or
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(b) which is to be communicated under subsection (1)(b), is the
information in question held at the time when the request is received,
except that account may be taken of any amendment or deletion made
between that time and the time when the information is to be
communicated under subsection (1)(b), being an amendment or deletion
that would have been made regardless of the receipt of the request."
Section 1(5) provides that – "A public authority is to be taken to
have complied with subsection (1)(a) in relation to any information if
it has communicated the information to the applicant in accordance with
subsection (1)(b)." Section 1(6) provides that – "In this Act, the
duty of a public authority to comply with subsection (1)(a) is referred
to as "the duty to confirm or deny"." ???
--
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Robert Henderson
Personal website: http://www.anywhere.demon.co.uk
Turk182
wrote:
The software you refer to that screens callers before the call is
answered, in it's commercial form, is called PhoneBox.
http://www.bionics.co.uk/Playout.aspx
The specific use you refer to does not jump out at you from the
website, but in practice, that is what it was actively used for in
respect of it's editorial possibilities, but it also provided call
handling and call origin data for analysis.
Both the BBC and commercial users used it, or a similar or home-made
product, in the way you describe; in other words to limit or prevent
access to programmes by people whose views they disagreed with or did
not want aired.
So for example, BBC radio knew, while under significant pressure from
the Labour government, that if discussions took place on air that
embarrassed the national or local government, that this would result
in the BBC having it’s wings clipped. Amid a climate of increasing
threats via Campbell and co, this was seen as essential. One BBC
manager said, "We can't do anything on air now without complaints
coming in from the government".
After the ‘stuffy’ old BBC began to break down, for many years the BBC
was becoming more ‘cutting edge’ and confident in it's role; and
by1995, it really had left it’s programme makers to get on and make
programmes. By 2000 things had changed dramatically. Controversial
output was becoming increasingly limited to the low audience, late
night and specialist news and programming, and the bulk of output
across national and local platforms, used blandness enhancement to
mollify and negate anger, dissent or discontent.
What did that do for programmes? It created an undue emphasis on
trivia: "Mrs Chandler from Springbourne has found a boxed game of
Tiddlywinks in her loft and wonders whether anybody has a set of
instructions? So, what ever happened to games like that? Have you
got any old games? We'll open up the lines now - give us a call and
tell us about your memories of old games". Listen now; this is still
a large and expensive part of your radio experience, particularly
where the BBC is concerned. It should cost pennies, but they make it
cost pounds.
The huge amount of trivia output like this, however, also had a knock
on effect for the BBC, as it attracted 'old' people - but the BBC
actively wanted to discourage old people from its output - it
increasingly wants to target young voters. BBC producers told
presenters, "we don't want the Doris type on - they were relegated to
'specialist', occasional 'old people output' like Sunday morning
requests. A poster was put up in BBC studios all over the country
showing their target listener. They were white, middle class,
comfortable and clean wearing woolly jumpers. They were also content
and law abiding, smiling- like a younger mum and dad.
The PhoneBox type software used by the BBC was then, not only used to
prevent the grumblers and the politically aware from getting on and
embarrassing anyone, but was also used to keep the old people off.
Names like Fred, Betty, Iris, and Sid would flash on the screen with a
warning; so they did not get answered or were answered but only when
it was too late. Alongside this would be the flashing name David - a
person who been on before only to complain about toxic waste in his
area - a complaint that had resulted in the BBC getting harassed by
the local MP for being sensationalist. David would now just assume
that he was having trouble getting through. He was now out in the
cold. He should have spoken about turnips - then he could have got on
every night.
Commercial radio was also highly efficient at exploiting this
editorial 'shutting up' tool. Some of the biggest people in
commercial radio today, used the software to rig competitions. Large
companies used it to extort thousands of pounds from local people by
rigging premium rate competitions. The practice, first reported on
the newsgroups by me - resulted in prosecutions, but was far more
widespread than eventually revealed.
Commercial radio still uses this ‘call barrier’ software to prevent
old people from getting on air. ‘Favourites' are allowed to gain
access. As the calls appear on the screen, a list of names and
locations and comments appear beside them. I recall one female
presenter of a programme, who always placed herself in front of the
PhoneBox screen, and generally used the software to ensure that people
who got on air were the ones who would say good things about her. The
stations, via the producers, also used it to make sure the sycophants
got on. They made themselves sound as if everybody loved them. The
old days of people complaining on air about the station were over.
They are all still using it for this purpose today.
This simple and sensible piece of software required the broadcasters
to be operating from an ethical and safe in their job security. Here
we have another problem; most radio people were on short-term
contracts with no employment rights. Unfortunately most commercial
radio bosses today are either ex-technical or salesmen. They care
nothing about freedom of speech. Ethics has no place. This was the
American way. This was station enhancement being uses as a censorship
tool. It gave the stations and individual broadcasters the ability to
completely change the essence of output. If you ever wondered why the
winner always screams on commercial radio, it’s because ‘she’ (women
are always targeted), is a known hysterical ‘screamer’.
Programmes became crooked, less democratic, and less spontaneous, with
a consistent feel to the style of programming all over the country.
The software tool was even used to contact people and get them on air,
based on their known ‘usefulness’. The presenter became less
important - cheap kids could host radio - as long as by computer
tweaking, it sounded convincing. No longer was the presenter dealing
with the unknown - the skills were lost - this is now fakery of the
worst kind.
Computers were also now increasingly used to programme music. It was
used as a tool to save money and as a result of that decision, output
became pretty much the same wherever you were. Payola was replaced by
companies doing open paid for deals to promote certain songs, though
not explaining to the listener that this was being done. People began
to turn off. Radio was now becoming very bland. It was a cash
machine for the bosses.
Radio and TV has never recovered from this culture. The broadcast
media is loaded with 'yes' men while women have virtually taken over
all the research, enhancing the sympathy for female victims of
violence to the exclusion of male. I am delighted that gay men have
been able to make it in the media, but if I told you know that MOST
local radio managers are now gay, we may wonder why this has happened,
and how this has also affected output. There has been an effect; some
of it has good but not all. It has given more power to the women.
Labour finally took all limitations off ownership. Now most
commercial radio is owned by two or three men. One of the biggest
most powerful and rich men in radio today is a drug fuelled sadist.
The main reason the government and the media want all digital radio,
is to prevent pirate stations getting through. They want total
control. You will listen to what you are told to.
The situation was bleak until internet radio started. Now anyone can
make a radio station - how long will it be before the government tries
to control this in the interests of big business and their own
political desires?
Turk182
Andy
Who the fuck runs Ofcom. Independent it ain't. Should be investigated
by the EU as it is nothing to do with communications - it gives
franchises based on wealth and not to media and telecoms companies -
but to ADVERTISING and CREDIT companies. The price of licenses creates
"barriers to entry" and is thus very anti-market and anti-choice.
I think Oona King was a good appointment though - might have not been
the best politician but does come from a background (we're not talking
ethnicity either) that is more in line with the real people of Britain
- a Britain about characters not demographics. We're a very different
country from suburban Australia and bible-belt America- we should have
media that reflects this.
Culex (The Infamous Culex)
wrote:
> What this case has proved is that the BBC surreptitiously censor callers
> to phone-ins. They do this by using a phone system which allows them to
> flag up numbers which they then refuse to answer. The caller is unaware
> of what is happening. They make the connection and the phone rings but
> is never answered. The Information Commissioner's decision means the BBC
> can censor callers without the subject of censorship knowing and without
> having to explain their reasons. RH
Bollocks. Just keep changing your phone number.
> That, in effect, is what section 3(1) of the Act provides when it says
> what "public authority" means "in this Act". The exception in section
> 7(1) does not qualify the meaning of "public authority" in section 3(1).
> It is directed to the ...
>
> read more »
Not bloody likely!
-- -
Culex -- the Infamous Culex