UK Netflix, regulated only in the

Netherlands, has never faced a

complaint despite removing content
after misinformation claims
Ofcom has no power to rule on Netflix programming –
despite its contentious documentaries drawing criticism in
the media

By ​Karl McDonald
May 23, 2019 9:29 am
Updated September 16, 2020 4:09 pm

Netflix is regulated in the Netherlands, so it isn’t subject to Ofcom judgements like the BBC,
ITV and Channel 4 (Photo: Getty/i)

Netflix​ has never faced an official complaint from UK audiences, according to the Dutch
regulator in charge of oversight of the platform’s output.
Ofcom​ has no power to regulate Netflix as it does traditional broadcasters like the BBC
because the company is based in the Netherlands and falls under Dutch rules.

As a result, its millions of UK users must use the company’s own internal processes to
complain about controversial programming – including documentaries featuring shoddy
science or potentially harmful diets.

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“We can’t leave it to big private firms like Netflix to be judge and jury for themselves,” warned
Lib Dem House of Commons media spokesperson Christine Jardine.

Netflix this year released a documentary series called ​The Disappearance of Madeleine
McCann​, while US-focused series such as ​Making A Murderer​ and ​Wild, Wild Country​ were
widely viewed in the UK.

Leaving Neverland: Michael Jackson and Me​, a comparable two-part documentary

broadcast on Channel 4, was subject to at least 240 complaints, according to Ofcom’s
weekly​ ​bulletins​.

The streaming platform now has more than 10 million subscribers in the UK, more than
Sky’s subscription package.

Dutch regulation
It is not currently regulated by Ofcom. The company is based in the Netherlands, and is
therefore subject to Dutch regulation even on its English-language output and programmes
specific to the UK version of the platform.

That stands in contrast to the ​BBC​’s video-on-demand service, the iPlayer, which must
secure Ofcom’s agreement even to make platform changes.

The Dutch regulator, Commissariaat voor de Media, told ​i​ that it had never received a formal
complaint about Netflix or its programming. By contrast, Ofcom received almost ​56,000
complaints​ about television programming in 2018.
Netflix is headquartered in Amsterdam and is subject to Dutch regulation (Photo: CC BY
2.0/Rob Dammers)

Lodging an objection broadcast television with Ofcom is a ​relatively simple process online​,
while the pathway to complain to the Dutch regulator is much less clear. The actual law
governing Netflix in the Netherlands is ​only available online in Dutch​.

Netflix programming which has received backlash in the media includes The Magic Pill,
which made false claims about the power of cutting carbohydrates, and What The Health?
which far overstated the link between diet and cancer. 13 Reasons Why, a drama series,
was ​criticised for glamourising suicide​.

As well as its in-house productions, Netflix hosts dozens of respected films made by the
BBC, PBS and independent filmmakers.

Aliens and cryptids

At time of writing, documentaries fronted by ​Louis Theroux​ and ​David Attenborough​ were
available, as were the critically acclaimed Blackfish, about orca exploitation, the
Oscar-nominated Virunga, about park rangers in the Congo, and the classic 1990 film Paris
Is Burning, about the New York drag scene.

But those documentaries sit undifferentiated on the platform from much more questionable
films bought in from elsewhere, with some dating back to the days before Netflix .

The platform retains a number of alien and cryptid-related documentaries. Alien Mummies,
from 2012, “probes the facts and fiction of the world’s most mysterious remains”, while
2017’s Discovering Bigfoot follows “researchers” as they chase “definitive proof” of
Sasquatch’s existence.
The landing page for ‘Alien Mummies’ on Netflix

On the more serious end, Cowspiracy, a 2014 documentary which advocates veganism as
an environmentalist tactic, has been criticised for questionable science.

The film claims that livestock and their by-products create 51 per cent of all greenhouse
emissions. Scientists say the true number is closer to 15 per cent.

The documentary appears as a suggestion for users who have watched non-political food
programming such as Chef’s Table, which profiles noteworthy chefs.

Health and diet controversies

But while Cowspiracy is contentious and inaccurate, its message is unlikely to be damaging.
Other Netflix-hosted documentaries about health and diet are more problematic.

The Australian Medical Association ​demanded the removal of The Magic Pill​, a film which
claims the so-called “ketogenic” diet has a wide range of health benefits, including shrinking
a cancerous tumour.

The keto diet, which encourages lots of fat and little carbohydrates, is ​approached with
caution by the medical profession​, and has been linked to unhealthy weight loss, among
other complications.

2017’s What The Health, a pro-veganism film, ​drew criticism​ after comparing eating eggs to
smoking five cigarettes a day and linking food choices to cancer in a much stronger way
than any data indicates.

And Gwyneth Paltrow’s Goop has been granted a Netflix deal, despite being challenged for
sharing false or misleading information about the health benefits of lifestyle products in the
past, and paying a $145,000 settlement in a ​consumer protection lawsuit for misleading
customers.
Gwyneth Paltrow’s Goop has been criticised for its lax standards in recommending lifestyle
products (Photo: Getty)

“There is not only a quality difference between the high and low-end programmes, but a
political and ideological one too,” academic Dr Sarah Arnold of Maynooth University told ​i​.

Other streaming platforms have failed make this distinction, with ​Amazon criticised for
showing “anti-vaxxer” conspiracy content​ as a search result for vaccination. “We might find,
for example, pro- and anti-vaccination programmes on the same platform,” she added.

“This gives the impression of a ‘balanced’ range of programmes even though one might
have poor scientific support,” Dr Arnold said.

She highlights the case of Root Cause, a documentary which appeared on Netflix and
Amazon Prime linking root canals to cancer.

It was ultimately removed​, but its presence in the first place raises a quality control issue.

Media, not tech

“Where television broadcasters are much more accountable to the public in terms of
regulation and remit, Netflix doesn’t have the same oversight so there is little to prevent it
from showing sensational, if not factually incorrect, content,” Dr Arnold warned.

Netflix told ​i​ that the company “reviews all comments and complaints”, highlighting the fact
that company makes a positive decision on what content it uploads – unlike ​YouTube​ or
Facebook​, where user-generated content dominates.
The company differs from other start-ups of its generation in describing itself as a “media
company” rather than simply a tech platform.

Mark Zuckerberg, Facebook’s founder, leaves the Elysee palace in France after a meeting
(Photo: Getty)

That is meaningful because it implies that the company takes its role as curator and
gatekeeper seriously, as a television channel or news site might, rather than simply viewing
itself as an impartial host for user-generated content.

Facebook’s Mark Zuckerberg insisted in 2016 that it is simply Facebook’s job to “build the
tools”, and the company, along with YouTube and other networks, has been reluctant to go
as far as some politicians have demanded​ in taking responsibility for what is published.

But Reed Hastings, Netflix’s CEO, ​recently said​ it was “a content company powered by tech”
because most of its spending is on programming rather than platform.

High expectations
Jeremy Wright​, the Secretary of State for Digital, Culture, Media and Sport, addressed the
regulation gap in a speech at the Enders conference in March.

“Our regulation of broadcasters is widely appreciated – including by audiences – for its

robustness and effectiveness, and it sets the framework for much of the cultural and
economic benefit that we so value,” he said.
“It provides crucial consumer protections, especially with regard to harmful and inaccurate
content, which plays an important role in ensuring trust in our broadcasters.

But he added: “For relatively new on-demand platforms, rules are in many areas not as
robust.”

Jeremy Wright, the Secretary of State for Digital, Culture, Media and Sport (Photo: Getty)

“We place high expectations on our public service broadcasters to reflect and represent the
full diversity of the UK’s nations and regions, and in doing so creating a product that often
appeals across the globe.

“On-demand platforms undoubtedly have global appeal. But it is worth thinking about how
we can encourage them to develop in a way that means the content produced here truly
reflects UK audiences.”

Many of the low-quality documentaries may contribute to the erosion of public discourse and
faith in science by hinting at conspiracies or dismissing “mainstream science” on certain
issues.

Monopoly position
Celebrating the removal of Root Cause, Jeffrey M Cole, the president of the American
Dental Association said the film contained “significant misinformation that is not supported by
scientific evidence” – potentially adding to the already significant worries the public have
surrounding visiting the dentist.
The problem of ill-fitting algorithmic recommendations also applies to YouTube, where users
have complained of being shown right-wing videos in the sidebar despite watching content
totally unrelated to politics.

But there is also a structural problem: Netflix has benefited from presenting something
different to what came before, and from regulators being unready.

“It is one of the early starters who got into monopoly positions, and who regulatory and
constitutional authorities have been slow to comprehend,” Jean Seaton, professor of media
history at the University of Westminster told ​i​.

The fact that one rule applies to the BBC, ITV and Channel 4 while another, Dutch rule
applies to Netflix is illustrative of that fact.

Judge and jury

The Lib Dems’ DCMS spokesperson in the House of Commons, Christine Jardine, called for
more accountability, saying: “I would be absolutely astonished if there has never been a UK
subscriber who felt they had a legitimate complaint to raise with Netflix.

“We can’t leave it to big private firms like Netflix to be judge and jury for themselves.”

Christine Jardine MP

“There clearly needs to be a regulatory regime which holds global streaming companies
accountable.

“We can’t leave it to big private firms like Netflix to be judge and jury for themselves.”

The company, when contacted by ​i​, highlighted its own internal complaints procedure by
phone, social media or its online help centre.

“We work with the British Board of Film Classification (BBFC) to apply age ratings to all our
content,” a spokesman said. “We also provide a description and warnings on all content and
have a safe zone for kids as well as parental controls.”

“We provide choice to our members but fully appreciate and don’t expect everything to
appeal to everyone, which is part of the beauty of Netflix, and you can discover new genres
and shows that interest you.”

https://inews.co.uk/news/media/netflix-complaints-ofcom-regulator-diet-controversy-294075