On Sunday night, HBO in the US aired a new episode of Last Week Tonight with John Oliver. The second half of the show was a long explanation/opinion piece from Oliver about what Brexit is (this is a show aimed at Americans after all), and was essentially a 15 minute piece imploring Britain to Vote Remain. It’s very good and hits the nail on the head.
On Monday morning the HBO had posted the full 15 minutes on YouTube.
In fact some of the videos from Last Week Tonight put on YouTube are blocked in the UK by the uploader – i.e. HBO. But this one wasn’t. The reason is almost certainly because Sky Atlantic has the rights to the show in the UK, and Sky prefers to limit access to clips from the show to its own subscribers.
But in this instance, UK viewers could watch — almost certainly because Oliver and his producers knew that the piece wouldn’t be broadcastable in the UK until the Brexit referendum had finished.
I noticed quite early on Monday that the piece was unbroadcastable under UK election guidelines, and later on Monday, Sky Atlantic pulled its planned broadcast from Monday night when new episodes of the show usually air. Sky Atlantic will instead broadcast the show on Thursday after polls close.
Now if you were to believe a certain section of the “Twittersphere” this is because Sky is owned by Rupert Murdoch, and his papers in particular are rampantly “Leave.”
But the truth is that Sky Atlantic couldn’t have shown the programme whether or not they had wanted to (Murdoch doesn’t fully own Sky either, although he certainly exercises a lot of control).
In the UK we have strict rules about impartiality in the run-up to an election or referendum. The UK regulator Ofcom, publishes a Broadcast Code which all UK commercial broadcasters have to adhere to (The BBC also adheres to some parts of the code).
Section Six of the code deals with Elections and Referendums, and is based on UK law:
Relevant legislation includes, in particular, sections 319(2)(c) and 320 of the Communications Act 2003, and Article 10 of the European Convention on Human Rights. Broadcasters should also have regard to relevant sections of the Representation of the People Act 1983 (as amended) (“RPA”) – see in particular sections 66A, 92 and 93 (which is amended by section 144 of the Political Parties, Elections and Referendums Act 2000).
Ofcom told broadcasters earlier this year that the “referendum period” would run from 15 April 2016 until 10pm 23 June 2016.
Rule 6.3 is critical during this time:
Due weight must be given to designated organisations in coverage during the referendum period. Broadcasters must also consider giving appropriate coverage to other permitted participants with significant views and perspectives.
It’s pretty clear that Sky Atlantic wouldn’t have been able to balance John Oliver’s piece appropriately, and so, they postponed the episode until after the election.
Topical comedy programmes are always tricky during election periods, and it’s notable that the current run of Have I Got News For You has been interrupted until after the referendum now. You can broadcast topical comedy, but you have to have “balance” in your comedy too.
What if Sky had broadcast the programme anyway? What could have happened?
Well Ofcom regularly finds broadcasters in breach of it’s code. Only this week the Discovery owned Quest (and Quest+1) channel was found to have breached several rules when they broadcast a post-watershed programme, complete with multiple swearwords, in an early-morning pre-watershed slot.
In this instance, the finding was simply a rap on the knuckles (Discovery was extremely apologetic, and put in place new compliance procedures to ensure that the mistake was not repeated), but no further sanction. Broadcasters who repeatedly breach rules can face fines or in extreme cases, have their broadcast licences revoked. In essence they can be shut down. This is rare, and for the most part has only happened to adult channels who have repeatedly breached rules. But a multi-billion pound broadcaster like Sky, reporting to shareholders, cannot possibly risk the loss of its licence.
You can be certain that Ofcom and potentially the Crown Prosecution Service would take greater exception to rules surrounding elections and referendums being broken by a large broadcaster. The Representation of the People Act would potentially leave senior people at an infringing broadcaster personally responsible for illegal actions, and subject to being prosecuted under the law.
Indeed, here’s what Ofcom published with respect to a much smaller local election recently:
Ofcom will consider any breach arising from election-related programming to be potentially serious, and will consider taking regulatory action, as appropriate, in such cases, including considering the imposition of a statutory sanction. (i.e. the removal of a broadcast licence.)
Furthermore, the fine that Ofcom can choose to impose can be informed by that company’s turnover. Sky’s 2015 turnover was around £11.3bn.
Since broadcasting the Oliver piece without “balance” would be deemed quite deliberate by Sky, the cumulative fine, risk to broadcast licence and the potential for personal prosecution means that there was no way Sky was ever going to broadcast it.
It’s not a conspiracy — just the law.
Note: I’m not a lawyer, and these are just my interpretation of the rules as I understand them.