Impartiality and the BBC…

The issue of BBC and impartiality seems never far from the surface these days – and during the highly charged Brexit process it seems to have erupted more and more. So much so that Ofcom, who have been the BBC’s regulator since it took the role from the BBC Trust in 2017, are now undertaking a review.

This review is very much to be welcomed – but it needs to be understood too. This is not happening, as some seem to think, as a recognition of BBC bias, or an acknowledgement that something is wrong in practice with the BBC’s output. The terms of the review give a somewhat less direct explanation. The Terms of Reference of the review state that:

“We will seek to understand more clearly the importance the audience places on the BBC’s impartiality; whether they are satisfied that the current tools used to ensure due impartiality are effective; and how audience attitudes to impartiality, accuracy and trust relate to one another.”

This is much more about perception of impartiality than the practice. It is primarily a review of audience opinion rather than the BBC’s practices. It is, however, an in depth review and is very much to be welcomed – but whether it will go far enough or deep enough to satisfy the BBC’s critics is another matter entirely. The first signs are not as positive as they might be. When the BBC’s Director General, was reported to have said that “We must stand up for it and defend our role like never before,” it set alarm bells ringing. Defensiveness, in many ways, is the last thing that the BBC should be thinking about now.

Indeed, in relation to impartiality in particular, the BBC’s defensiveness has been a big part of the problem. Whenever the BBC has been seen to be partial, it’s first reaction – and indeed that of its senior journalists and producers, particularly when responding in the social media – has been a kind of aggressive and dismissive defensiveness. ‘How dare you suggest that’ and ‘don’t be ridiculous’ has been the general tone pretty much every time, even when it is pretty clear that the BBC has made a mistake, an error of judgment, or been ‘played’ by someone in order to gain an advantage. These things happen – and the BBC’s often intense denial that it is even conceivable that they have looks not only ridiculous in itself but undermines the very trust that the BBC seeks to protect.

Neutrality and impartiality

It is important to be clear in what way the BBC is required to be impartial. The Broadcasting Code requires that the BBC (and other broadcasters)”…ensure that news, in whatever form, is reported with due accuracy and presented with due impartiality.”

Note that the requirements for accuracy and impartiality are together – impartiality and accuracy are two parts of the same requirement, and quite rightly. Whilst ensuring that there is impartiality, broadcasters should not take their eye of accuracy. If one side of a debate is telling the truth and the other is telling lies, it is not breaching impartiality to call out the lies, even if that looks as though it is being harder on one side than the other. If one side is lying, the due in due impartiality actually requires the lies to be called out.

The code makes a big point of what due is supposed to imply:

“Due” is an important qualification to the concept of impartiality. Impartiality itself means not favouring one side over another. “Due” means adequate or appropriate to the subject and nature of the programme. So “due impartiality” does not mean an equal division of time has to be given to every view, or that every argument and every facet of every argument has to be represented.

This is where, at least in perception, the BBC starts to get itself into trouble. That trouble has been official in relation to climate change, when it was rebuked by Ofcom for not challenging Lord Lawson sufficiently in an interview on Radio 4’s Today Programme in 2017, but has been made more intense over Brexit, when many people have suggested that the BBC’s journalists have not challenged the claims made, particularly by leading Brexiters, or called out things that are known to be untrue. In order to be seen to be impartial, it looks as though the BBC has let the requirement for accuracy slip, and potentially to a dangerous degree.

Being criticised by both sides isn’t evidence of impartiality

The BBC is of course criticised by both sides in the Brexit debate. Remainers claim the BBC is biased towards Brexit. Brexiters claim the BBC is biased towards Remainers. It is sometimes claimed, even by people in the BBC, that this is in some ways evidence that the BBC is impartial, or is getting the balance right. It is really important to understand that this is a logical fallacy. If you are getting the balance right, then you might well be criticised by both sides – but the converse is not true. One of the sides may be criticising you fairly, the other side unfairly. If one side sees that the bias is going their way, then they may well criticise anyway, to try to keep that bias in place, and to try to cancel out the criticism from their opponents. Bad faith criticism, to try to bully the journalists and indeed the BBC, is to be expected – particularly when the facts and evidence surrounding a particular issue point clearly in one way rather than the other. If you don’t have the facts on your side, using under-hand methods is one of the tools at your disposal – and that includes bad faith attacks on the broadcasters.

This does not, of course, mean that all criticism of the BBC and other broadcasters is done in bad faith – very much the opposite – but it does mean that the argument that because both sides are attacking we must be being neutral or impartial is fundamentally flawed. Criticisms should be taken seriously, but taken with a distinct pinch of salt

Particular problems in the current era

Times are particularly challenging right now, and not just because politics is particularly heated. The BBC is facing a complex environment that puts particular pressures on its news and current affairs role – and particularly its impartiality.

One of the most important is the danger that it faces in being ‘played’ by people with a vested interest. This manifests itself in many different ways, from murkier funded ‘Think tanks’ pretending to be neutral themselves and portraying themselves as researchers when they are really highly manipulative lobbyists, to people trying to gain fame or push their particular personal agendas. Problems like the ‘fake vicar‘ who appeared on Newsnight might have many different explanations, but they certainly do not inspire trust.

Newsnight’s use of one of his own propaganda pictures as the backdrop for their feature on Stephen Yaxley-Lennon (‘Tommy Robinson’) might also fit into this category – it was certainly a significant mistake, but whether it was accidental or Newsnight being played we may never find out – particularly as the BBC refuses to even countenance the possibility that it was wrong. The regular problems with apparent ‘plants’ in the audiences of Question Time might fit along the same lines – again it is not always clear whether these people blag their way into the audiences or are actually invited, as one UKIP candidate who managed to get on the programme three times has claimed.

Another challenge to the BBC is the apparent untouchability of its ‘big beasts’ – presenters such as Andrew Neil and perhaps most prominently John Humphrys – who headline the highest profile programmes. This points to another of the BBC’s biggest dilemmas – balancing ‘box office’ with informative, impartial and accurate journalism. When the presenters become the stars, that balance is challenged.

Headlines and Tweets

Another huge challenge, and one faced by the whole of the media, not just the BBC, is a failure to grasp the importance of headlines and summaries. Traditionally journalists have had little or no control over the headlines that accompany their stories – and in the past this has mostly been an annoyance, but little more. Now, however, it matters in many more ways. It is not just that people will often only see the headlines – that was always true, as you look at a newspaper in a shop, or see someone else reading it on the train – but that those headlines can often be the only thing that can be seen. It is what appears in search results, for example, or in a Twitter or Facebook feed. It is what is automatically generated if you click the button to tweet a story – you have to manually go in and change it if you want to say something different.

It can be screen-shotted without providing a link to the actual story. It can be used by manipulative politicians to imply something quite different from the intention of the story itself – Jacob Rees-Mogg has a particular track record here, but he is far from alone. There are people trying to manipulate news output all the time – it is one of the key features of the ‘post-truth’ era.

What needs to be done?

The first thing is to welcome this current review – and to encourage Ofcom to take it seriously, and the BBC to address it properly, and without this instinctive defensiveness that has characterised their approach to criticism so far. That, indeed, might be the single most important thing for the BBC to do. We all make mistakes – and we all know that others make mistakes. That includes the BBC.

Without acknowledging, let alone apologising for their mistakes, the BBC looks worse and worse. The kind of dismissive responses to questions about impartiality, from the Corbyn/Kremlin backdrop to the Fake Vicar to the ‘jokes’ about Diane Abbott prior to airtime on Question Time, do the BBC a lot of harm. The BBC can easily seem aloof, arrogant, looking down its nose at its audience – that really needs to change.

One way it needs to change is more openness about the debates that are going on. I am sure, from the people that I know at the BBC, that when something bad happens there are many people worried about it, wondering whether they misjudged the issue, and worse. I know there are people in the BBC, for example, who are concerned about the BBC’s role in the rise to prominence of Nigel Farage, and others who are embarrassed about the arrogance of some presenters on the Today Programme. These debates must be happening in the BBC behind closed doors – there should be some way to show the public that the BBC is at least aware that there are problems, and problems with practice not just with the perception of audiences.

If the BBC could, just once, say something along the lines of ‘yes, we may have misjudged that, and with hindsight we shouldn’t have used that picture/invited that person to be interviewed, or we could have been tougher in our questioning of that politician, rather than going straight onto the ‘how dare you criticise us’ road, it would really help.

Taking genuine experts more seriously would also help – and again, I know the BBC does try hard here, and I know that many experts are hard to reach or less good ‘box office’ than politicians or ‘think tank’ representatives, but it really matters. That last part, the use of lobbyists without knowing or acknowledging their real background, funding and so forth, has been a perennial problem.

We need the BBC

The importance of the BBC in the current era cannot be overstated. We need high quality, relatively impartial, and accurate and informative journalism now more than ever. In the struggle with fake news and other forms of misinformation, the existence of reliable ‘real’ news is a crucial tool. The BBC ought to be able to provide it – it holds a unique and critical position. Its grip on that position, however, is far from firm. Changes need to be made if it is to be maintained. I hope the BBC is brave enough to make them.

(This is of course my own personal, biased and far from impartial perspective).

SLS 2019 – University of Central Lancashire, Preston


Here’s the official call for papers for the Cyberlaw section of the SLS

SLS Cyberlaw Section: Call for Papers/Panels for 2019 SLS Annual Conference at the University of Central Lancashire, Preston

This is a call for papers and panels for the Cyberlaw section of the 2019 Society of Legal Scholars Annual Conference to be held at the University of Central Lancashire in Preston, from Tuesday 3rd September – Friday 6th September. This year’s theme is ‘Central Questions About Law.

The Cyberlaw section will meet in the first half of the conference on Tuesday 3rd and Wednesday 4th September.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Monday 18th March 2019. All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. If you experience any issues in using Oxford Abstracts, please contact

Decisions will be communicated by the end of April.

I would welcome proposals for papers and panels on any issue relating to social media regulation, data protection, copyright reform and surveillance, including those addressing this year’s conference theme and though it might seem hard to predict, on the impact of Brexit on all aspects of cyber law. We welcome proposals representing a full range of intellectual perspectives in the subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts. Sessions are 90 minutes in length and so we recommend panels of three to four speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference. With this in mind, when you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

Please also note that the SLS offers a Best Paper Prize which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel. The Prize carries a £250 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies. To be eligible:

  • speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
  • papers must not exceed 12,000 words including footnotes (as counted in Word);
  • papers must be uploaded to the paperbank by 11:59pm UK time on Monday 26th August; and
  • papers must not have been published previously or have been accepted or be under consideration for publication.
  • papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

I have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 14th of June in order to secure their place within the programme, though please do let me know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course, and will open after the decisions on the response to the calls are made.

With best wishes,

Paul Bernal