On 9 October Ofcom published its long-awaited decision on complaints about the four-part Al Jazeera series ‘The Lobby’, broadcast from 11-14 January . I was a complainant. Below is a Q+A on the decision.
Q: What is the fatal flaw in the Ofcom decision?
A: The opinion that the programme was ‘in the public interest’. This is crucial. The decision accepts that Ella Rose (the Director of the Jewish Labour Movement, who was filmed surreptitiously) had a ‘legitimate expectation of privacy with regard to the inclusion of the footage which showed her having private conversations.’ But that expectation was – according to Ofcom – outweighed by the ‘public interest’. ‘Public interest’ (along with ‘freedom of expression’) trumped ‘privacy’. But the plain fact is, the ‘investigation’ found nothing untoward. In the blog I wrote back in January, I noted the comment from Andrew Billen in The Times:
“For the life of me I could not see what Israel was doing wrong here. The Lobby sensationally exposed the existence of, well, a lobby.”
How can an investigation which comes up with precisely nothing, possibly be ‘in the public interest’?
Al Jazeera (through Carter-Ruck) claimed that there was prima facie evidence of the existence of a story that was in the public interest, namely, ‘the efforts of a foreign state covertly to influence and interfere with British democracy and the operation of the political system.’ Guess what … Israel’s diplomats do their job, just like British diplomats: to get the best deal for their country. How can the revelation of such an obvious fact POSSIBLY be ‘in the public interest’? In fact the programmes were AGAINST the public interest. Under the cover of an investigation of the so-called ‘Lobby’, this series purposefully fuelled prejudice against Jews. (For the evidence see my blog again).
Effectively Al Jazeera was setting up a ‘straw man’ justification for the programme – and Ofcom unbelievably swallowed it. It’s a really dangerous path to go down. Imagine: UK Jewish community leaders have regular meetings at 10 Downing Street. Sometimes (no doubt) Israel is discussed – for example, when the Iran agreement was being drawn up.
According to Ofcom, that allows Al Jazeera (or any other broadcaster) to surreptitiously film the president of the Board of Deputies, the president of the Union of Jewish Students – and any other attendee – and presumably the staff who brief them.
Another example: Presumably in recent days the Spanish ambassador has been talking to UK policymakers about Catalonia, with a view to shaping the UK response. Does that give Al Jazeera carte blanche to surreptitiously film Sr Carlos Bastarreche and his staff? Or there are allegations that a prominent politician is a paedophile; according to Ofcom, this gives carte blanche for him to be surreptitiously filmed.
Q: But Ambassador Regev apologised, Shai Masot was send home and Maria Strizzolo resigned as a UK civil servant. You still maintain that the Al Jazeera investigation came up with nothing?
A: Yes. And Al Jazeera (through Carter-Ruck) was able to cite these acts as ‘evidence’ that it came up with something.
Q: Was Al Jazeera right to surreptitiously film Ms Ella Rose in distress?
A: No – and Ofcom got this wrong too. Rule 8.17 of the Broadcast Code says ‘People in a state of distress should not be put under pressure to take part in a programme or provide interviews, unless it is warranted.’ It says nothing about surreptitious filming – but how can 8.17 not apply a fortiori to that? ‘Unless it is warranted’ means ‘unless there is a public interest ground’ – and as explained above, there wasn’t.
Shockingly Al Jazeera (through Carter-Ruck) tried to argue that Ms Rose’s distress was fair game because it was rooted in her professional capacity, not her personal one. (Rule 8.16 says ‘Broadcasters should not take or broadcast footage or audio of people caught up in emergencies, victims of accidents or those suffering a personal tragedy, even in a public place, where that results in an infringement of privacy, unless it is warranted or the people concerned have given consent’). So distress caused by antisemitic bullying doesn’t count if it’s in the context of a job? An absurd and offensive distinction.
Q: Ms Rose deliberately downplayed her past employment at the embassy. Doesn’t this create a public interest reason for surreptitious filming?
A: Another straw man. The Ofcom report quotes Al Jazeera’s evidence: ‘There were accusations that Ms Rose had deliberately downplayed her past employment at the embassy.’
Accusations from whom? And were they credible? Or were they simply from Asa Winstanley, a known Israel traducer who writes for Electronic Intifada, a renowned Israel-traducing online publication? Ms Rose is said in the report to have disputed that her employment at the embassy was ‘played down’ and she provided evidence in the form of social media posts. So why did Ofcom believe Al Jazeera and not her?
Q: Did Ofcom consider all your complaints?
A: No. My complaint said that rule 2.2 of the Broadcast Code had been breached:
2.2 Factual programmes or items or portrayals of factual matters must not materially mislead the audience.
The ‘investigation’ showed Jean Fitzpatrick coming to the Labour Friends of Israel Stand at the 2016 Labour Party Conference. She is a hardcore anti-Israel activist and it appears to be a ‘setup job’ with her scripted. But we are not told this. She is portrayed as if she has come to the Conference simply to participate, with no specific intention. If she had been recruited specifically as an ‘agent provocateur’ this should have been revealed to the viewer.
And my complaint also said that rule 5.13 had been breached:
5.13 Broadcasters should not give undue prominence to the views and opinions of particular persons or bodies on matters of political or industrial controversy and matters relating to current public policy in all the programmes included in any service (listed above) taken as a whole.
The series focused almost entirely on the views of know Israel traducers such as Ben White, Ilan Pappe, Jackie Walker, Asa Winstanley, Peter Oborne and Jean Fitzpatrick.
Q: Was Ofcom correct to rule that the programme respected the ‘impartiality’ provision (#5.5) of the Broadcast Code?
5.5 Due impartiality on matters of political or industrial controversy and matters relating to current public policy must be preserved on the part of any person providing a service (listed above).
Due impartiality was clearly lacking. This was evidenced by the extensive use of commentators known to be Israel traducers: Ben White, Ilan Pappe, Jackie Walker, Asa Winstanley, Peter Oborne, Jean Fitzpatrick. No pro-Israel commentators appeared. Jackie Walker alone was granted over three minutes on air. Yet Ofcom – incredibly – thinks that the programme included ‘a range of viewpoints’ (p28).
Q: So all in all, what will the impact of the Ofcom ruling be?
The ruling is extremely damaging, principally – but by no means exclusively – to the Jewish community. It makes surreptitious filming legitimate on the flimsiest of pretexts and even if there is no material result. This includes surreptitious filming of Jews distressed by antisemitic bullying, provided this is in the context of their job. The ruling legitimises a form of Jew-bashing, thus turning the clock back about 500 years.
It shows zero sensitivity and plays into the hands of anti-Semites.
Moreover, there is no right of appeal.