Impartial – or fair?

Our modern society convulses on occasions about issues that burst into flame from seemingly remarkably small sparks. It’s somehow a feature of the social media age, and perhaps of the nature of politics that social media seems to encourage.

In the last weeks in the UK, one convulsion has been in relation to a brief tweet by a former footballer criticising the language surrounding one aspect of government policy. It’s more complicated than that, of course: the former footballer is Gary Lineker, who leads football coverage at national broadcaster the BBC (and is its highest paid star), and the policy is one of the new Prime Minister’s 5 key promises to the nation, to stop the arrival of a few thousand individuals by boats across the Channel from France.

Lineker, who famously never received a yellow or red card as a player, was sent from the pitch by the BBC, only subsequently to be reinstated after a wider rebellion by pundits and commentators neutered its sports coverage. At its heart the BBC’s convulsion was in relation to its commitment to ‘impartiality’ and the extent to which that commitment should limit comments by contractors such as Lineker, particularly those operating in non-news areas of its coverage. No one disputes that employed news staff must avoid sounding personally political.

I don’t intend myself to discuss government policy nor the words Lineker chose to use, nor other aspects of alleged politicisation at the BBC. A lot has already been said about the fairness or otherwise of Lineker’s treatment and the treatment of other BBC contractors. Rather than turning that over again, I want to explore what the BBC and others think is meant by impartiality and whether it’s the right concept to apply at all. I am grateful in this to the inspiration of a short post by legal blogger David Allen Green, which considered the concept of impartiality as it is applied in the courts.

A key section of Green’s commentary is the following:

“the judge is required…to decide the dispute impartially and having given each side a fair hearing./What the judge will not do – even though they are duty-bound to be impartial – is to treat both sides as having equal weight and not make any material decisions at all.”

He rails at what he and others sometimes call the ‘both-side-ism’ that the BBC can appear prey to: the tendency occasionally simplified as reporting two points of view, one that it is currently raining and the other that it is not, rather than looking out of the window to verify the situation one way or the other. Of course, most issues are more nuanced than the presence of precipitation (even in the context of the UK’s propensity to wide varieties of rainfall). In a more substantive area, many complain that the BBC used to have both climate scientists and climate change deniers weigh in on the issue, as if the balance of opinion was somewhere halfway between these, when the unanimity of scientists about the climate crisis is almost total. Happily the broadcaster seems to have gained greater confidence in the certainty of the science of late.

The oddest thing when exploring impartiality at the BBC is that though this is the term that has been used as a one-word drumbeat throughout the recent debates – the Director General’s comments were littered with that single word – it is not what the BBC is committed to, nor what the regulator, Ofcom, insists on. The broadcaster is called on not to apply ‘impartiality’ but ‘due impartiality’. This is the term used in Ofcom’s Broadcasting Code. It’s also the relevant term in the BBC’s foundational document, its Royal Charter, and in the Framework Agreements between the organisation and the government that sit beneath the Royal Charter. The BBC is not expected to be impartial; it is required to be duly impartial. What’s more, that requirement applies largely only to its news reporting: the word ‘impartial’ appears only to be applied within the foundational Royal Charter with regard to the BBC’s “news, current affairs and factual programming”.

It’s been reinforced more recently in the latest of the so-called Framework Agreements that are the vehicle for the government to assert its expectations of the BBC. The 2022 Framework Agreement inserts clear obligations for the BBC board, under the unequivocal banner “The board must:”. Bullet (b) says that the board must “ensure in particular that any such guidelines set appropriate standards to secure the fairness, due impartiality, due accuracy and editorial integrity of the content of the UK Public Services”.

In its Broadcasting Code, Ofcom clearly explains the importance of the word ‘due’:

““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.”

So the BBC is explicitly not required to be impartial, and should not be seeking to apply that standard, it must be duly impartial. As Ofcom explains, that means it must apply appropriate judgement and be impartial with a wise sense of the context and of reality. In short, it must be fair – it’s notable that many dictionaries offer fairness as an alternate term for impartiality. But surely fairness is an even better synonym for due impartiality: both terms require sense and judgement, and would expressly lean against lazy both-side-ism.

The banner for Section 4 of the BBC’s editorial guidelines

It’s sad then that the BBC’s own Editorial Guidelines are casual in how they consider the term impartial. Section 4 of the Guidelines is entitled Impartiality, not Due Impartiality. Further, while the introduction of the section does talk about due impartiality, the explanation seems less precise than Ofcom’s and in fact seems to invite the introduction of all points of view, just not necessarily in a single programme but instead potentially over a whole range of programming. It feels like an invitation to both-side-ism rather than a clear expectation that journalistic judgement must be applied and fairness should prevail. Later in the section, both ‘impartiality’ and ‘due impartiality’ are used, without any apparent consciousness that they are different things and that the BBC is not required to be ‘impartial’ without the context and sense that comes with the ‘due’.

Perhaps unusually for this blog I’m not seeking to argue that the term fairness should be substituted for due impartiality – that term seems well-embedded and well-understood at least by the BBC’s regulator if not so clearly by the broadcaster itself. But I do think that the judgement and sense that is freighted in the term fairness needs to be learned from. Due impartiality is not impartiality – it is a much better and more demanding standard. It is not fair to its great heritage that the BBC is lazily drifting from living up to the standard of due impartiality and apparently trying to substitute the weaker term of impartiality.

See also: Fairness on the airwaves

The BBC and impartiality, The law and lore blog, 13 March 2023, David Allen Green

Broadcasting Code, Section 5: Due impartiality and due accuracy, Ofcom (dated 5 January 2021)

Broadcasting Code, Section 5: Due impartiality and due accuracy, Guidance notes, Ofcom (dated 22 March 2017)

BBC Royal Charter 2016

Framework Agreement between Secretary of State and the BBC, 2022

Editorial Guidelines, Section 4: Impartiality, BBC