Law Report: Researcher cannot complain over television programme: Regina v Broadcasting Complaints Commission, ex parte British Broadcasting Corporation - Queen's Bench Division (Mr Justice Laws), 13 May 1994

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The Broadcasting Complaints Commission only had jurisdiction under the Broadcasting Act 1990 to hear a complaint of 'unjust or unfair treatment' in respect of a television programme where the complainant had participated in or 'had a direct interest in' the contents of the programme. A researcher whose views were not finally incorporated in the programme and who claimed this affected her reputation and integrity, did not have the necessary direct interest to complain.

Mr Justice Laws granted an application by the BBC for judicial review of the commission's decision, in September 1992, to hear a complaint by Mrs Jean Howard concerning a programme, broadcast on BBC 2 on 26 February 1992, entitled 'Tito - Churchill's Man?' It concerned the circumstances in which Mr Churchill, during the Second World War, arrived at the decision in December 1943 that the Allies should support Marshal Tito and his partisans in Yugoslavia in place of Mihailovich.

Mrs Howard had worked at the intelligence decoding centre at Bletchley Park during the war, writing weekly summaries of Enigma decrypts, including some from the Yugoslav front. She had done some paid research and been interviewed for the Tito programme, but her material was not used or referred to. She complained that the BBC had, by excluding her material, cast doubt on her value as a researcher among those who knew she had been involved and thus discredited her reputation and personal integrity.

Two important points had been omitted, she said: '(1) the acceptance by Fitzroy Maclean of Tito's propaganda figure on numbers of partisans and German divisions said to have been held down by Tito, which were incorporated in his 'Blockbuster' report of November 1943; (2) it was 'Blockbuster' which influenced Churchill, who fudged the issue throughout the war by repeating that Tito was holding down 35 Axis divisions: a figure quoted before the Italian capitulation in September 1943 for Axis divisions in the whole of the Balkans.'

Later she added: 'In a programme devoted to putting the record straight the correct number of Axis divisions and guerillas should have been included.'

The commission said it was not concerned to judge the programme's historical accuracy but to examine whether Mrs Howard was known in relevant circles to have participated in its research, whether what was stated in the programme was at variance with her assessment as known in those circles and, if so, whether fairness required the programme to have made her position clear.

The commission concluded that it was unfair of the BBC to broadcast the programme without reference to Mrs Howard's known views as it might lead specialists to infer that her research on the subject had been found unsatisfactory.

Charles Flint (BBC legal dept) for the applicants; David Pannick QC (Gregory Rowcliffe & Milners) for the commission.

MR JUSTICE LAWS said the commission's jurisdiction to hear this complaint of 'unjust or unfair treatment' under section 143(1)(a) depended on whether Mrs Howard, though not a 'participant' in the programme, was a 'person affected' under section 144(2) in the sense that she 'had a direct interest in the subject matter of that treatment' under section 150, which also provided that treatment could be 'unjust or unfair because of the way in which material included in a programme has been selected or arranged.'

It was argued that the concept of 'unjust or unfair treatment' encompassed the way a programme had been edited, and that Mrs Howard's complaint was that the way the programme was edited directly damaged her reputation.

The statute obviously did not require, in order to clothe the commission with jursdiction, that a complainant appear or be heard in the programme, or even that he or she had actually been referred to or mentioned in the programme. But the statute could not be construed so as to confer jurisdiction on the ground only that the complainant had a direct interest in the putative unfair or unjust treatment.

The words 'direct interest in the subject matter of that treatment' in section 150 required it to be shown that the complainant had a direct interest in the contents of the programme which arose not merely because he or she asserted that it treated him or her unfairly or unjustly; his or her interest must be in the subject matter of the programme said to constitute unfair treatment, whether or not that subject matter was indeed unjust or unfair.

'Direct interest' imported at least some connection or nexus between Mrs Howard and the contents of the programme itself. But there was none: the events of late 1943 could not conceivably be said to have involved her directly. It was not suggested she played any direct part in the events with which the programme was concerned. Her complaint was of the effect the programme would have on the opinion others might entertain of her later research. That was altogether outside the conception of a direct interest in the subject matter of what she said constituted unfair treatment.