29 Jun, 2011

Herbert Smith advises Primark on successful complaint over faked Panorama footage

Herbert Smith’s dispute resolution team advised retail chain Primark on its successful complaint regarding allegations of child labour in its supply chain made by the BBC’s Panorama programme, broadcast in June 2008. Footage broadcast by Panorama was found by the BBC Trust to have been faked by the freelance journalist who obtained the footage, Dan McDougall. This is a major victory for Herbert Smith’s long-standing client, Associated British Foods plc (Primark’s parent company).

The Panorama programme “Primark: On the Rack” was broadcast by the BBC on 23 June 2008 as an hour-long special. The programme featured footage of three young boys in Bangalore, who were alleged to be making clothes for Primark in a backstreet shop. This was used to support the contentions that Primark’s Indian suppliers were using child labour on Primark clothing and that Primark’s supply chain was out of control.

Primark believed from the outset that this footage could not be genuine and raised its concerns with the BBC programme team during the right to reply process before broadcast. After broadcast, Primark complained to both the BBC Director-General and the BBC’s Editorial Complaints Unit (the “ECU”). None of the strong representations made by Primark were taken seriously.

In July 2009, the ECU reopened its inquiry into Primark’s complaint after the company submitted a substantial quantity of fresh evidence that gave rise to further grave concern over the authenticity of the footage used in the programme.

The ECU found there had been breaches of the BBC’s editorial guidelines (including that the Bangalore footage had not been adequately verified before it was transmitted) but said that it was unable to conclude that the footage had been fabricated, although there was “an unresolved question about the authenticity of the disputed material”.

Primark immediately appealed to the BBC Trust on the basis that the decision of the ECU regarding the issue of fabrication was wrong and the approach taken was fundamentally flawed. The BBC Trust re-investigated the evidence (including sending its editorial adviser to India to interview witnesses, a step the ECU had failed to take).

On 16 June 2011, almost three years after the broadcast of the programme, the BBC Trust’s Editorial Standards Committee (ESC) found that the Bangalore footage was not authentic and that there had been a serious breach of the accuracy and fairness editorial guidelines. There were serious editorial failings on the part of Panorama (which the Trust said was the case regardless of the decision on fabrication).

There was also a breach of the accountability guideline due to the ECU’s approach in two respects (including that it appeared to have placed the burden on Primark to prove its case in the complaint).

Serious sanctions have been imposed on the BBC Executive. An apology to Primark was broadcast on BBC One at the end of last night’s Panorama programme and is to be displayed on the front page of the Panorama website for a period of one week. The programme is never to be sold or repeated and steps are to be taken by the BBC to notify any third parties who were supplied the programme of the Trust’s decision. Further, the BBC Executive must consider its position in connection with the Royal Television Society Award which was given to the programme in 2009.

The BBC Executive is considering the lessons learned from this matter and the serious issues raised are to be carefully considered in connection with the review the Trust is already carrying out of the BBC Complaints Framework.

Herbert Smith’s team, which was instructed on the matter from the very outset, was led by partner Alan Watts and of counsel Anna Bateman. They were assisted by various associates and trainees over the years and supported by Nusrat Zar and Anna FitzHerbert of Herbert Smith’s administrative and public law team. James Price QC was instructed (and Ian Gatt QC of Herbert Smith’s in-house advocacy unit also advised at times).

Alan Watts commented: “This is a fantastic result for Primark. It has held its nerve despite continued resistance from the BBC to take its concerns seriously and to deal with the formal complaint appropriately. Allegations that Primark’s supply chain involved child labour were refuted before the programme was even broadcast. Serious questions have to be addressed as to how the BBC’s flagship investigative journalism programme could have been allowed to broadcast footage which has been found to have been staged by Mr McDougall and completely unverified (and unverifiable) by the BBC”.

Anna Bateman added: “The issues in this case were complex and demanded meticulous attention to detail and perseverance to discover the truth. Primark was not provided with crucial evidence held by the BBC until very late in the process despite the fact that evidence was supportive of Primark’s case. The BBC Trust’s finding is the result of three years of hard work and faith that the footage would ultimately be proven to be staged. This ultimately paid off but many other complainants faced with the same uphill struggle would have given up long ago”.

Paul Lister, General Counsel at Associated British Foods plc (Primark’s parent company) said: “We are delighted at the result. It has taken a long time to get there but we were convinced from the outset that it was something we had to pursue. Numerous issues came up throughout the process and at each and every stage we were able to look to Herbert Smith for clear strategic advice. I am very grateful to Herbert Smith for their help and guidance throughout the process which was invaluable.



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