Jeni Barnett and MMR: Analysis of the Ofcom Decision

This is my analysis of the Ofcom determination of the complaints against the notrious Jeni Barnett radio show broadcast on 7 January 2009.

I set out this determination in full below, in italics. And, as I did with the Night Jack court ruling, I have inserted my comments in [brackets].

My general view is that it actually is not a bad or surprising ruling, given (a) the narrow questions which Ofcom had to address given the actual wording of the Code and (b) the evidence submitted by LBC's lawyers (which in large part seems to have relied on the contributions of the hostile callers to provide "balance" not provided by the presenter).

Indeed, Ofcom makes intersting comments about the inadequate briefing for the presentation of the broadcast and how the presentation was was unclear on significant points, and it also comments about the impatient and dismissive manner the presenter dealt with criticism.

Skeptics should thereby not be discouraged by the overall ruling that the radio show was "not in breach", for as a careful reading of the ruling perhaps suggests that Ofcom is really quite damning about the quality of the broadcast.

The source of this text is the Ofcom site here, which I gratefully acknowledge.


Jeni Barnett
LBC 97.3 FM, 7 January 2009, 14:00

Introduction

LBC 97.3 FM (“LBC”) is a local speech based commercial radio service which broadcasts across Greater London. Ofcom received 190 complaints regarding a discussion about a parent’s right to not give their child the Measles, Mumps and Rubella (“MMR”) vaccination, on the weekday afternoon phone-in discussion programme presented by Jeni Barnett.

The complainants expressed concern about the way in which Jeni Barnett presented and handled the phone-in discussion on this topic. In their view the programme gave such an unbalanced, inaccurate and irresponsible portrayal of the dangers of the triple MMR vaccine that it could have caused considerable anxiety to parents. This in their view could reduce the take up of the vaccination resulting in a considerable threat to public health.

Ofcom asked LBC to comment with reference to the following Code Rules:

2.2 – factual programmes or items or portrayals of factual matters must not materially mislead the audience; and
5.13 – local radio services must 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 taken as a whole.

Ofcom was of the view that the MMR vaccination could be considered a matter relating to current public policy given that it is part of the Government recommended childhood vaccination schedule.

[Here Ofcom is setting the scene. It is their job as a regulator to convert often general complaints into potetential breaches of particular provisions of the Code. In this case they have identified two code provisions. The last sentence is to explain why Code Rule 5.13 is applicable. The use of 5.13 is interesting as it is not an immediately obvious provision, and it perhaps shows that Ofcom wanted to ensure LBC had to deal with the strongest possible complaint against the broadcast.]


Response

LBC responded that the debate on the right to choose the MMR vaccination was based upon presenter opinion, as was much of LBC’s output. Indeed, the focus of this discussion was based on Jeni Barnett’s own personal experience as a mother - who had chosen not to give her daughter the triple MMR vaccine – and the right for her to make this choice for her child without being criticised for it.

From the outset of the programme, the broadcaster argued that Jeni Barnett made clear that she was not an expert herself and that this programme was focused on the notion of informed parental choice, not about whether immunisation was good or bad. Furthermore, the presenter had invited experts, as well as parents who had refused the vaccination, to call in and had advised against scaremongering. In conclusion, they argued that the programme did not “stray into the bounds of providing factual information that mislead listeners” and did not breach Rule 2.2.

With reference to Rule 5.13, the broadcaster stated that given the nature of LBC’s output, the vast majority of its content would in some way be related to government policy and therefore fell within the bounds of “current public policy”. In their view however, the Code provided scope for presenters to express their own opinions thereby stimulating debate, provided that a fair opportunity for comment was offered.

The phone-in format of the programme afforded this facility.

In this particular programme Jeni Barnett received six callers to the programme, four of whom presented opposing views to her. Indeed, the second caller actually pointed out that he was a regular listener and that every medical expert he had heard on LBC discussing the issue of MMR had said it was “a good thing” and the evidence against it had been refuted.

Overall these points demonstrated that the broadcaster had not only provided balance in this broadcast but also across its output. Given that Rule 5.13 defined undue prominence as a “significant imbalance of views” the broadcaster stated that this programme did not reach this level of imbalance and was therefore not in breach of this rule.

[Fairness requires that a case is put to the relevant party before a determination. LBC would have instructed lawyers to prepare this response, and so the response is closely honed to the terms of the two Code Rules. This is how, in general terms, companies will usually have an advantage in regulatory matters.

The lawyers for LBC have ensured anything which can be said for LBC in respect of the two Code provisions will be. The consolation for non-lawyers in this case is the sympathy one must have for the lawyers who had (presumably) to listen repeatedly to the recording of their client's show in formulating this response.

It is clear that LBC has had to rely on the callers to provide evidence of balance which was otherwise missing in the broadcast.

The LBC lawyers have done a thorough job of the required exercise and, in my view, Ofcom was going to struggle to uphold a complaint of the two Code Rules.]


Decision

The Communications Act 2003 places a statutory duty on Ofcom to ensure that broadcasters apply generally accepted standards so that the public is adequately protected from harmful material. In applying this rule Ofcom must ensure an appropriate level of freedom of expression as set out in Article 10 of the European Convention on Human Rights. This is in terms of both the broadcaster’s right to impart information and ideas and the audience’s right to receive them.

Ofcom must therefore seek an appropriate balance between ensuring members of the public are protected from material which may be considered harmful on the one hand and the broadcaster’s right to freedom of expression on the other.

As the complainants expressed concern, that the programme misleadingly suggested that the MMR vaccine was dangerous, thereby suggesting to parents that immunisation was not recommended nor a necessity, we firstly considered the programme with specific reference to Rule 2.2. This rule relates to protecting the public from material which may be harmful, by requiring the broadcaster to ensure that the portrayal of factual matters does not materially mislead the audience.

[Again, this is scene-setting. Ofcom is setting out its powers and how it will approach the case. It correctly identifies Coder Rule 2.2 as the most important provision.]


Rule 2.2

With reference to this rule Ofcom considered if the programme had given the overall impression to listeners that the MMR vaccine was dangerous and unnecessary and whether material harm might have been caused to the public as a result.

[Ofcom is setting out what it sees as the Code Rule 2.2 test in this particular instance. See that they have split it into two: the "overall impression" and the "material harm" tests. For a complaint to be upheld on Code 2.2 it would need to meet both these tests.]


Ofcom acknowledges that the focus of the debate was intended to be about a parent’s right to choose, based upon an informed decision, whether to have their child immunised. The presenter set out this argument clearly at the outset of the programme, recounting her personal experience when she chose not to immunise her daughter and with comments such as:

“…if as a human being you decide you do not want to give your child a vaccination, you should in a democracy, have the right to say no.”

Furthermore, Jeni Barnett restated this argument several times during the course of the hour long programme with statements such as:

“I want you to tell me why you think we have to have this measles jab..”
“It’s not my job to say to people ‘don’t do it’ it’s not my job to do any of that. But you’re allowed to have your say.”

“You’ve got to make an informed decision – your children will not be the same as anyone else’s.”

As Jeni Barnett had clearly set out her personal position at the start of the programme it was not unexpected that she would endorse the statements and motives of two mothers who had also elected not to immunise some, or all, of their children. Consequently the callers did make a number of unchallenged statements that suggested the MMR vaccination and immunisations in general were simply not necessary and could be dangerous to a child’s health.

For example, the first caller made the comments:

“It must be wrong to be putting toxins and poisonous material into a young baby’s body…live viruses that are cured in monkey’s kidneys. How can that be the right thing to do?”

And:

“I just think vaccination is a total abuse of the immune system.”

The other caller said :

“he [her son]...had the MMR, and then when he was three he was diagnosed with autism…my paediatrician was quite sure that it was the cause of the autism.”

And:

“I would never recommend having my children vaccinated…all my children who have never been vaccinated have been very very healthy.”

Also Jeni Barnett did not question the text messages and emails she received during the programme which put forward a similar anti-immunisation or MMR position, such as:

“…as well as not being a hundred per cent effective, they also contain cancer causing agents.”

“…gave my son MMR and then watched him shut down for a week as autism took hold…I live with guilt.”

“It’s all Government spin children don’t need the triple jab.”

[These comments are now hereby immortalised in an Official Document!]


In considering Rule 2.2, however, our decision was not based on whether the presenter should have challenged the callers or whether she should have exercised more caution in reading out texts and emails. Rather, it was based on whether, taken as a whole, the content of the programme would have left listeners with the overall impression that the MMR jab was dangerous thereby influencing parents not to immunise their children.

[This is the crucial passage. No sensible person listening to the broadcast would have not wanted some of the callers and texts to be challenged; but this is NOT the question which Ofcom is asking itself. In view of the text of Code Rule 2.2, I am afraid I have to say Ofcom is righr to adopt this restricted approach.]


Ofcom is of the view that, on balance, the programme did include sufficient and important opposing arguments to inform listeners of the case for immunisation and so served to dispel concerns about the dangers of the vaccine and ensure overall that the information was not materially misleading or harmful.

[This is where one can form a different view to Ofcom, because it appears that the "balance" which saves the broadcast was not intended by the presenter or by LBC. The callers that put contrary arguments were presumably not set up to do so. In my view, left to itself, the broadcast may have been held to be in breach.]

[Ofcom now set out the extent of this "balance".]


Indeed four of the six callers given air-time during the hour long programme presented an opposing view to Jeni Barnett. Importantly, two of these four callers were health professionals, a GP and a nurse, who drew upon their experience of working closely with young children and the Government recommended immunisation schedule. The doctor in particular was given a considerable amount of air time, largely uninterrupted by the presenter, to explain the rationale for the MMR immunisation programme and the reasons why it was important to eradicate measles:

“All you need to do is meet one family whose normal child - they took the decision not to vaccinate their child - and they got measles and they got a devastating complication such as inflammation of the brain…or they died, and your opinion changes.”

“Measles is the one that can really does kill…it’s just because the numbers in Western Europe and the States and Australia are lower that we don’t see this so often.”

In addition the nurse criticised Jeni Barnett several times for being “irresponsible” and made comments such as:

“You should think about what you are doing on this programme. You are doing a lot of damage.”

She also presented the rationale for a national immunisation schedule:

“If you deny immunisation then you are denying health to your child and other children.”

Another caller reprimanded Jeni Barnett for reading out an anonymous email saying that vaccines contained “cancer causing agents” (see above) because it would “scare new mothers” and it was irresponsible to read out such a statement without the name of the person who had sent in the email. A further caller stated that all the medical experts he had heard on LBC previously had rejected the arguments against the MMR vaccine.

Further, on at least two occasions Jeni Barnett herself looked to redress the balance by commenting:

“…there isn’t a definitive answer. There is no absolute answer” and “as a parent you have to make a decision based on your own family history”.

[This was enough to make the show balanced, it would appear. But the following two paragraphs are very interesting.]


Broadcasters must exercise extreme caution when dealing with issues of public health where misinformation or misleading impression could cause actual or potential damage. It is extremely important that while broadcasters exercise their freedom of expression, they must ensure that any potentially harmful material is fully put in context. Broadcaster understandably wish to reflect discussions and debates that are taking place across the country, but in doing so, in areas of public health, they must not ignore the prevailing medical advice. In particular, while maintaining the right to freedom of expression, broadcasters need to be responsible and be aware of giving air to unfounded or unscientific views on matters of public health which may carry some weight.

[This paragraph will presumably be quoted by anyone making a complaint to Ofcom about such a programme in future.]


At times, it appeared that during this broadcast the presenter relied upon her anecdotal experience and was not adequately briefed on the wider public health issues and prevailing medical advice which this debate would undoubtedly also touch upon. For example, at times the schedule of other childhood immunisations were confused with the MMR triple vaccine schedule, and no reference at all was made to any current research contesting a link between autism and the MMR vaccine yet several anecdotal references were made supporting a link. Whilst this did not mean that the programme overall was materially misleading, and was therefore not in breach of Rule 2.2, in Ofcom’s opinion that it would have been preferable for the programme to have made some significant points clearer to listeners.

[This paragraph seems to me to be damning about the programme. In my view, given the wording of the Code Rules and the "balance" provided by the callers, this is as far as Ofcom really could have gone in this case in criticising the broadcast. In simple terms, Ofcom have held that the presentation in the broadcast was inadequate and unclear on significant points.]


In conclusion, however, Ofcom is of the view that on balance there were sufficient opposing arguments and challenges from contributors, including health professionals, to present the case for immunisation and that listeners would not have been materially misled by this broadcast. Therefore, Rule 2.2 was not breached.

[Sad, but Ofcom really had no choice; at least Ofcom were able to qualify their determination here with their comments on the quality of the broadcast.]


Rule 5.13

Rule 5.13 states that: “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 taken as a whole.”

[Again, Ofcom setting out the rule.]

Some complainants expressed concern that the way in which Jeni Barnett presented the discussion was not balanced and resulted in undue prominence of the anti-MMR position. We assessed these concerns with reference to Rule 5.13.

Rule 5.13 prohibits undue prominence being given to particular views on matters relating to current public policy on a local radio service such as LBC in the context of its output overall. Given that the very nature of speech based local radio services is to debate matters of interest to listeners within a certain locale, which inevitably may relate to current public policy, this requirement for impartiality for the local radio broadcaster is slightly different to that applied to broadcasters with national coverage.

Firstly, legislation in this area, which is therefore reflected in the rules in the Code, requires local radio stations to ensure that no undue prominence is given to views, on controversial matters. This is a separate and different concept to the requirement of due impartiality. Secondly, as Rule 5.13 makes clear, for this rule to be breached the broadcaster would have to demonstrate a “ significant [Ofcom’s emphasis] imbalance of views aired” across “ all [Ofcom’s emphasis] programming on a service dealing with the same or related issue within an appropriate period.”

In contrast, the rule of due impartiality for national radio broadcasters must be achieved within a programme or more than one programme of the same series only.

As set out above when considering Rule 2.2, Ofcom was of the opinion that the programme itself provided a balance of views which were both in support of, and also opposed to, the MMR vaccine and the immunisation schedule for children. Therefore Ofcom considered that across the programme there was not a significant imbalance of the views aired.

In conclusion, it is Ofcom’s view that the programme itself provided enough views to ensure that the programme provided balance overall and, therefore, no undue prominence and no breach of Rule 5.13.

[Ofcom is merely saying here that it cannot hold a breach of this alternative rule which applies only to local radio stations when it has not found a breach of Rule 2.2.]


Ofcom recognises that it is important for broadcasters to bring discussions about medical matters to an audience, and, that broadcasters should have the editorial freedom to present such matters as they wish provided that they comply with the Code. However, it is Ofcom’s view that broadcasters should exercise caution when dealing with medical matters where the issues are as controversial and scientifically based as the MMR vaccination. Whilst the broadcaster stated that the focus of this programme was about parental choice, not whether the MMR immunisation was good or bad, it was inevitable that such a discussion would evaluate the merits of immunisation or otherwise the issue of choice would not be relevant at all. Where such arguments are based on an understanding of the science and medicine, broadcasters should be aware of the potential dangers of causing harm.

[Again this paragraph may well be quoted in future complaints.]


It is also Ofcom’s view that the notion of avoiding undue prominence may include the presenter, as appropriate, paying due respect to callers putting forward a view with which he or she disagrees. For example, in this case the contributions of the two mothers who had not immunised their children were positively endorsed and appreciated by the presenter with comments such as “This is fascinating” and “Fantastic…I know I shouldn’t be biased…” In comparison, Jeni Barnett’s treatment of the nurse who criticised her handling of the topic was at times dismissive and impatient. In the context of Rule 5.13 therefore, broadcasters are advised to ensure that overall the tone towards, and treatment of, callers does not leave listeners with the impression that one particular view on a matter of political controversy or a matter relating to current public policy, is being given undue prominence.

[Again this appears to me damning, and it seems to go further than Ofcom needed to in not finding a breach of 5.13. The presenter's "dismissive and impatient" handling of criticism was, however, not enough for Ofcom to find a breach.]


Not in Breach of Rules 2.2 and 5.13

[There is sometimes more to a case report than its headline determination!]


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