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Rough justice

By Clive Whittingham 29-04-2016

Suddenly, there it was, riding over the hill at the last possible moment, just as the deepening despair about the demise of the factual television business seemed terminal – Making a Murderer on Netflix. A genuine, bona fide hit.

A documentary that people watched in their droves (judging by social media conversation, public awareness, buzz and effect – Netflix won’t tell us exactly how many, of course) and talked to each other about. An unscripted show that set agendas, started trends and had people as high up as POTUS Barack Obama passing comment. ‘The next big thing,’ for which unscripted execs and producers have scratched around while drama sailed off into the distance on a big party ship, has arrived. This is it – true crime, in serialised form.

HBO had already shown the potential for this with The Jinx, finally giving factual a slice of the binge-watching action. Now, after Making a Murderer, you can bet plenty of channels are going to want their version. Think you’ve been the subject of a miscarriage of justice? Fear not, that rumble in the distance is the sound of the unscripted television business stampeding towards your cell.

The problem is, broadcasters can’t have it. At least, not in the UK, and not in the same way as Netflix can. Those of us who couldn’t get enough of the Steven Avery case, and angrily kicked our PS4 across the living room when that 11th episode we were looking forward to turned out to just be the trailer that Netflix had tagged on to the end of the season (pack that in, please), will have undoubtedly since read about evidence that was not included in the documentary.

Making a Murderer subject Steven Avery

Making a Murderer subject Steven Avery

The programme strongly suggests Avery’s conviction for murdering Teresa Halbach is every bit as big a stitch-up as that for the rape of Penny Beernsten, for which he previously served 18 years before being exonerated.

But some evidence – such as his sweat being found in Halbech’s car, Halbech filing a complaint and refusing to work at his salvage yard again after a previous visit, Avery using a false name to book her for this job then making withheld phone calls to her mobile on the day of her death – was not included in the 10 episodes.

The filmmakers, justifiably, said it was difficult to squeeze such a prolonged case into 10 hours, and that only what they considered the most important evidence from both sides made the cut.

The wider issue this raises, particularly in the UK, is that linear channels are judged according to far stricter regulations than the SVoD streamers. One producer we spoke to doubted whether Channel 4 or Sky Atlantic, which would seem perfect second-window destinations for Making a Murderer, would even be able to show the series as it is now because of UK watchdog Ofcom’s regulations on due impartiality and incitement – Ken Kratz, prosecutor in the Avery case, has received death threats following the show’s release.

But the Ofcom code doesn’t cover Netflix or Amazon Prime, despite both services obviously competing with the linear broadcasters in the UK. To make it more perverse still, the much more relaxed Ofcom rules that do cover the streamers only apply to Amazon Prime, which has a London base, and not to Netflix, which doesn’t.

This means ITV, Amazon Prime and Netflix could air exactly the same programme and attract three different levels of regulatory response: heavy, light and nothing at all.

It also means programmes for which Netflix is enjoying stellar reviews and coverage are potentially out of bounds for linear broadcasters struggling to keep pace. The burning sense of injustice Making a Murderer creates is one of its biggest pulls – but would a UK linear channel attempting to make a similar show be able to inspire the same emotions while operating within the guidelines?

The pace of technological change is notorious, the speed at which rules and regulations catch up likewise. Nevertheless, it can’t be right, as the convergence between linear and streaming continues, that it’s one rule for one and one for another.

Mind you, one has only to look at the taxation debate around multinational companies like Google to see how difficult this is going to be to correct. Perhaps Making a Murderer isn’t going to be such a Godsend to the unscripted business after all.

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today's correspondent

Clive Whittingham News editor
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Clive Whittingham is news editor at C21 Media and also edits C21's Factual Weekly newsletter.

Prior to joining the company as senior reporter in 2011, he worked for several regional newspapers in the UK, including the Northants Evening Telegraph. He has also worked for The Daily Telegraph.

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