Findings and Conclusions of the BBC Trust Public Value and Fair Trading Committee Fair Trading Appeal Investigation: appeal regarding the BBC’s gardening website and gardeners' calendar function A. The Appeal..............................................................................................................3 B. Summary of Findings..............................................................................................5 C. Conduct of the Appeal Investigation....................................................................7 D. Context....................................................................................................................8 Appellant's Gardening Website 8 BBC Gardening Website and Gardeners' Calendar 8 E. Relevant BBC Guidelines........................................................................................9 Fair Trading and Competitive Impact 9 BBC Service Licences 10 F. Detailed Findings....................................................................................................10 G. Sanctions.................................................................................................................16 A. The Appeal The Appellant, who has requested that its name be treated as confidential in these findings, made a formal fair trading complaint to the BBC Gardening website editor, copied to the Controller Fair Trading, on 4 January 2008, about the BBC’s gardening website on bbc.co.uk, and in particular, its gardener’s calendar function. The Appellant claims the BBC intentionally copied this function from its own website, and further allege that the BBC used public funds to compete directly with its own subscription based service, on a scale and scope that created directly attributable loss of earnings and customers. The BBC Executive Fair Trading Committee (“EFTC”) dismissed these claims in its findings of 21 February 2008. EFTC found that the BBC’s website was conceived well before the launch of the Appellant's website and that the two websites were developed independently. Further, it found that the BBC had not breached the Competitive Impact Principle (“CIP”) and there was no breach of UK/ EC Competition Law (including state aid law), the Royal Charter, the Framework Agreement or the BBC’s Fair Trading guidelines. The Appellant’s fair trading appeal was submitted to the BBC Trust on 21 April 2008. The Trust Unit met with the Appellant, and its legal adviser on 9 June 2008 after requesting further information from the Appellant in a letter dated 2 May 2008 on the alleged effects of the BBC calendar function on demand for its services. This information was not supplied to the Trust. In the period between requesting this information and the meeting, the appellant sought and obtained assistance from the British Internet Publishers’ Association. The Appellant’s fair trading appeal set out the following key issues for the Trust’s Public Value and Fair Trading Committee (“the Committee”) to review. These issues were confirmed with the Appellant and their legal adviser at the 9 June meeting: BBC Gardening Website a. The Appellant does not agree with the EFTC’s conclusion that the BBC's proposal for an interactive gardeners’ website, and specifically the interactive gardening calendar function, was well established before the launch of the Appellant's site; b. The BBC gardener’s calendar offered on the BBC gardening website is a service already available in the private sector. The BBC has provided no evidence to the Appellant that its gardening website is ‘distinctive’; c. The BBC gardening website has been given an unfair advantage in contravention of the CIP through, for example (a) investment of £184,000 of Licence Fee funds to compete with the private sector; and (b) promotion of the new calendar service on bbc.co.uk; d. The use of licence fee funds to fund a service directly competing with that provided by the Appellant is an abuse of the BBC’s dominant position and contrary to competition law; e. The Appellant has not been given an adequate explanation as to why no visitor data is captured by the BBC generally or as a result of click throughs from banner promotions on bbc.co.uk in order to measure the impact of the BBC’s investment in its gardening site, and has not received such visitor data as previously requested. Calendar Function f. BBC staff did not tell the truth about using a BBC email address to join the Appellant's service prior to launch of the BBC’s gardeners' calendar function; g. The BBC did not conduct an adequate Public Purposes assessment of the BBC's gardening calendar function prior to launch on bbc.co.uk; h. The BBC did not conduct an adequate competitive impact assessment of the BBC's gardening calendar function prior to launch on bbc.co.uk; i. The Appellant has requested, but has not received, copies of the BBC's Public Purposes assessment and its competitive impact assessment relating to the gardening calendar function; j. The BBC gardening website development team were aware of the Appellant's service and knew their planned calendar function and future developments, including photo sharing and design advice sharing, would cause a chilling effect on the Appellant’s subscription business. Interim Measures Requested k. The Appellant requested as an interim measure that the Trust require the BBC to desist from further developments of its gardening website until the appeal investigation was complete. Finally, in agreement with the Appellant’s legal adviser, the Trust Unit made clear that it would not be addressing the following point as part of its appeal investigation, as it was not a competent authority in this regard: l. The BBC has directly copied features and elements of the Appellant's site and infringed intellectual property rights belonging to the Appellant (e.g. know how and copyright together with ideas such as “My Plants”, search for gardens based on postcode and 'style' and photo sharing). EFTC Findings The Appellant’s original fair trading complaint was considered by the EFTC, which determined that its Fair Trading complaint should not be upheld. The EFTC findings concluded that the BBC’s internet gardening sites were unlikely to create negative market impact, and may in fact stimulate demand for gardening products and services, including web- based services beyond those offered by the BBC. Additionally, it found that the Appellant has continued to innovate and develop its site, contrary to its assertions that the BBC has inhibited investment by its presence in the marketplace. Its findings also state that the Appellant did not provide any evidence of falling subscriber numbers in response to the BBC’s activities, but that it did provide two emails from a subscriber and a potential sponsor claiming that the BBC’s provision of free content meant that subscriptions were not an economically justifiable cost. The EFTC outlined the following explanation of its decision not to uphold the Appellant’s complaint in a letter dated 21 February 2008: 1. There is no evidence that the BBC deliberately replicated the main services provided by the Appellant website to launch a directly competing service; 2. The BBC’s actions are not in breach of the CIP; 3. There are no grounds under the Fair Trading guidelines for the BBC to be required to cease to provide the BBC's gardeners’ calendar; 4. There has been no breach of the BBC’s Royal Charter, its Agreement with DCMS, UK/ EC competition Law or the BBC’s Fair Trading Guidelines. The Committee also noted that further information was provided to the Appellant by the BBC’s Controller Fair Trading in the form of a letter dated 11 April that addressed further questions from the Appellant on evidence which related to the EFTC decisions. The BBC also provided a Freedom of Information Act ("FOI") response to the Appellant dated 8 April 2008, which provided some of the evidence requested in relation to the EFTC decisions. After initially declining to meet with the Appellant in a letter dated 24th January 2008, the Controller Fair Trading did then offer to meet with the Appellant, in view of the number of exchanges of correspondence, in order to help clarify any remaining issues. This offer of a meeting was not taken up by the Appellant. B. Summary of the Committee’s Findings The Committee first considered this appeal on 30 July 2008, but, after a request for further information from a Trustee, decided to postpone its final decision until the next scheduled Committee meeting on 10 September 2008. Having duly considered the appeal, together with the further information put before the Committee as a result of the Trustee’s request, the Committee decided that no elements of the appeal should be upheld. It did find, however, that some specific learning points need to be actioned by the BBC’s management as a result of this appeal investigation. In summary, the Committee found that: a. The BBC gardening website was conceived and developed independently of the Appellant’s gardening website. Further, the development of the BBC gardeners' calendar service was not connected with the development of the Appellant’s own interactive calendar service. b. The Appellant did not agree with the BBC Executive’s timeline for the development and launch of the BBC gardening website. The Appellant claims that the BBC’s idea for an interactive gardeners’ calendar came after the launch of the Appellant’s own site. The Committee found that, contrary to the Appellant’s assertions, the initiation of the BBC’s plan to develop the gardeners’ calendar was conceived in April 2005 and put into development in August 2005 so as to coincide with the BBC television series Gardener’s Year (televised in January 2006). This meant that the BBC's idea for an interactive gardeners’ calendar came before what can be regarded as the hard launch of the Appellant's site in March 2006. The BBC Executive had considered how it could make the BBC's gardening website, and the BBC's gardeners’ calendar, distinctive as compared to other gardening websites and services. The Committee also decided that there is sufficient distinctiveness between the BBC’s service and the Appellant’s own website such that the BBC is not providing (and did not set out to provide) a service already in the private sector. c. The BBC gardening website has not been given an unfair advantage in contravention of the CIP either by investment of Licence Fee monies in the development of the BBC gardening website or by promotion of the gardeners’ calendar through bbc.co.uk. d. Whilst noting that the BBC is not a competent competition authority, the Committee found that the use of Licence Fee monies in pursuit of the Public Purposes is not contrary to competition law. e. The BBC’s explanation for not having visitor data for banner promotions on bbc.co.uk publicising the gardeners’ calendar function in respect of its gardening website is reasonable. f. There was no evidence that BBC staff intended to deceive the Appellant about the BBC's actions with respect to signing up to the Appellant's web service. The Appellant alleged that the BBC’s gardening website editor deliberately joined the Appellant's service as a user to copy ideas from it, then attempted to conceal what she had done by using a different email address. The Trust Unit investigation did not find any evidence to support this allegation (see detailed findings below at Section F.5). However, the Committee recommended that the BBC review its guidance on the use of BBC email addresses to avoid confusion for staff. g. The BBC’s gardening website, and in particular, the gardeners' calendar function, sits within the bbc.co.uk service licence and is consistent with the Public Purposes of that service. h. The CIP has not been breached through the launch of the BBC gardener’s calendar function on its gardening website, nor through the promotion of that facility on bbc.co.uk because competitive impact was a factor that was duly considered by the BBC at the time of development of the BBC gardeners’ calendar. However, the Committee did find that record keeping for assessments of competitive impact should be improved, and that such assessments should be kept up to date when planned launches of new services were delayed or covered a long period of time. i. The Appellant alleged that the Executive did not provide it with all the information initially requested in its original complaint, including copies of the Executive’s assessments of the BBC’s Public Purposes, the CIP and distinctiveness in relation to the BBC's gardening website. Although the Committee found that the BBC had complied with the CIP and requirements for distinctiveness and fulfilment of the BBC’s Public Purposes, it also found that record keeping in these areas needs to be strengthened in future so that, where appropriate, a summary and explanation of underlying analysis can easily be provided to stakeholders on request. j. The BBC’s actions in developing and launching their gardening website are not consistent with the Appellant’s view that the BBC either intended to create a chilling effect on the Appellant’s business by launching the BBC gardeners’ calendar service or that a chilling effect was in fact created. The Committee found that there was no evidence that the BBC activities in this area inhibit the ability of the Appellant to innovate and provide products and services to its customers, to the contrary, there is evidence that the Appellant has continued to innovate since the launch of the BBC gardeners’ calendar. Interim Measures Requested k. As there was no evidence that the BBC had breached fair trading guidelines and in particular the CIP, the Committee concluded that it would not have been appropriate for the Committee to have sought to intervene on an interim basis in the BBC’s operations in providing its gardening related internet sites whilst the appeal was under consideration. This report sets out how the appeal investigation was conducted, and the context to the appeal and the relevant regulatory and legal framework. The Committee’s detailed findings are set out at Section F below. C. Conduct of the Appeal Investigation The Appellant submitted a Fair Trading Appeal to the BBC Trust on 21 April 2008. The handling of this appeal was in accordance with the BBC’s published statement of the BBC Fair Trading Complaints and Appeals Process. An appeal investigation was subsequently conducted for the Committee by the BBC Trust Unit, established under the new BBC Charter which came into effect on 1 January 2007. The BBC Trust Unit is separate and independent from the BBC Executive and accounts directly to the BBC Trust. Documentation relating to the Appellant’s complaint was submitted by the EFTC and the Appellant to the Trust Unit. Following an initial review, telephone and face-to-face interviews with all relevant parties were conducted between May and July 2008, together with a full assessment of documentary evidence requested during the course of the investigation. Subsequent investigations were also carried out in August and September following further questions raised by a Trustee in response to an initial report presented to the Committee on 30 July 2008. The Appellant was kept informed throughout the investigation process by telephone, email and letter, however, the Appellant raised a concern that the communications provided by the Trust Unit were not provided promptly when subsequent steps in the process were triggered. This feedback has been noted by the Trust Unit to assist in providing an improved appeal process in the future. The Committee believes that the Trust Unit investigation was proportionate and reasonable in relation to the issues raised in this appeal. D. Context The Appellant's Gardening Website The Trust agreed with the Appellant and its legal adviser that intellectual property and copyright matters would not be addressed in this appeal, as the Trust is not a competent authority in this regard. It is nonetheless useful to understand the various elements that make up the services available from the Appellant's site and the BBC site respectively. The Appellant's website was ‘hard’ launched in March 2006 following beta testing which the Appellant has stated commenced in April 2005. The Appellant has three subscription options two of which involve payment by users. The key functional areas of the Appellant's service are described on its website and include: .. the ability to build your own garden online; .. the ability to create plant inventory lists, groups and notes; .. personalised gardening care instructions; .. a plant finder (with a c.6500 plant database); .. a listing of garden designers and sharing of online member garden spaces by location, postcode or style; .. a two dimensional garden layout planning tool. BBC Gardening Website and Gardeners’ Calendar Function The BBC’s gardening website was launched in October 2000 and is now part of the BBC’s ‘Lifestyle’ group of websites which includes Food, Health, Gardening, Parenting and Consumer sites. The BBC’s gardening website includes: .. highlights of gardening events; .. links to relevant BBC television and radio coverage; .. a plant finder database; .. a link to a site providing advice on the environment and sustainable gardening; .. a message board for registered users; .. a gardening calendar; .. a Gardeners’ Year television series blog; .. a pest and disease identifier; .. a three dimensional virtual garden tool; .. news feeds related to gardening; .. links to ‘how to’ articles.1 The calendar service on the BBC’s gardening website, elements of which The Appellant alleges was copied from its own site, was launched in March 2007. The calendar service provided registered users with timely advice on garden care, relevant BBC programmes on radio and television and automatic email alerts, together with a desktop based alert system, to remind users of a range of gardening tasks, including planting guides and advice on seasonal care. According to documentation supplied by the Executive, the idea for this function was conceived in April 2005 and development began in August 2005 in preparation for the launch in 2006 of the Gardener’s Year television series presented by Alan Titchmarsh. A scoping document for the BBC site dated August 2005 sets out the main functionality of the calendar service, including the ability to select specific garden features and have advice provided via email and other alerts specific to these features. In the event, the calendar function was not launched in 2006 due to new technical infrastructure developments and a desire to broaden the editorial objectives of the site beyond the tie in to the Gardener’s Year to provide links to learning and other BBC content. E. Relevant BBC Guidelines Fair Trading and Competitive Impact The Trust has adopted a Competitive Impact Policy Statement which requires the BBC to take account of the competitive impact of the BBC's activities on the wider market. The Trust has also adopted a Fair Trading Policy that applies to all trading activities of the BBC, although separate requirements apply to Public Service and Commercial Activities. The Executive has implemented the Fair Trading Policy through adopting the Fair Trading Guidelines and, in handling appeals from fair trading complaints, the Trust determines whether there has been a breach of the Fair Trading Guidelines. The Competitive Impact Policy Statement provides that, in carrying out its public service activities, the BBC must comply with a Competitive Impact Principle ("CIP"). The CIP requires the BBC to endeavour to minimise its negative competitive impacts on the wider market, whilst always ensuring the fulfilment of its Public Purposes and taking into account its other obligations in the Charter and Agreement. Although the appeal relates to BBC activities that pre-date the implementation of the Fair Trading framework, the investigation of this appeal follows the approach of the Executive in determining the original complaint which is to take a decision as if the framework as at 1 July 2007 was in place at the time of the alleged fair trading breaches.2 The Committee considered this to be appropriate because this Fair Trading framework imposes additional requirements that the BBC must now satisfy. 1 BBC Gardening website at http://www.bbc.co.uk/gardening/ 2 EFTC decision dated 21 February 2008 3http://www.bbc.co.uk/bbctrust/assets/files/pdf/regulatory_framework/service_licences/online/online_servicelicences/bbc_co_uk_servicelicence_30apr2007.pdf 4http://www.bbc.co.uk/bbctrust/assets/files/pdf/regulatory_framework/fair_trading/competitive_impact_statement.pdf p.8 BBC Service Licences The BBC’s gardening website is part of bbc.co.uk and so sits within the Trust’s service licence framework for bbc.co.uk. The current service licence for bbc.co.uk was approved by the Trust on 30 April 20073 and the relevant section of the licence that applies in this case is at Annex III, Section 2 (iv), which confirms the BBC will balance the potential for public value against the risk of market impact (the commitments in Annex III stem from the recommendations set out in the Graf Review of 2004, commissioned by the Department for Culture, Media and Sport). Service licences are only approved by the Trust once it is satisfied that the service is, in general terms, in compliance with competition and state aid law.4 Even with such approval, however, this does not remove the need for the BBC Executive to apply the CIP to the delivery of that service, and to each new element developed for that service (as per the Competitive Impact Policy Statement. A similar commitment may be found in Annex III of the current service licence for bbc.co.uk). In the Lifestyle area of bbc.co.uk, within which the BBC’s gardening website sits, the BBC’s online service focuses on providing content which is linked to its programmes and in turn to the furthering of its Public Purposes. F. Detailed Findings The Committee considered and made the following findings in respect of each of the issues it was agreed with the Appellant and would be addressed. 1. The Committee considered the Appellant’s assertion that it was incorrect for the BBC to conclude that their idea for an interactive gardener's website was well established before the launch of the Appellant's site. Based on interviews with the editor of the BBC gardening website, and the technical project manager of the BBC gardening website, together with documentation supplied by the Executive, the Committee was satisfied that the BBC’s gardeners’ calendar was conceived and developed independently of the Appellant’s gardeners’ calendar. The BBC’s calendar function was originally planned to coincide with the screening of the Alan Titchmarsh series Gardener’s Year and planning discussions relating to the BBC's calendar function began in April 2005, well before the hard launch of the Appellant’s service in March 2006. The Committee found that the BBC’s gardeners’ calendar was conceived and developed independently of the Appellant’s gardeners’ calendar. 2. The Committee considered the Appellant’s allegation that the BBC is offering a service already available in the private sector and had provided no evidence to the Appellant that its gardening website is ‘distinctive’. The Committee noted the Trust’s recent review of the bbc.co.uk service, which highlighted a need to develop a rigorous set of criteria to ensure new developments on the service are distinctive. This follows the Graf review which highlighted the lack of a formal method of assessing distinctiveness with respect to the BBC’s presence in certain markets. However, the BBC has not yet developed a formal method of measuring distinctiveness. Nonetheless, the Committee found, based on documentary evidence, that reviews of other gardening themed websites, including the Appellant’s own site, were carried out by the Executive with a view to ensuring that the features to be included on the BBC site were distinctive. The Committee found that the Executive did consider how it could make the BBC's gardening website, and the BBC gardeners’ calendar, distinctive as compared to other gardening websites. Evidence was provided illustrating the investigation undertaken by the team developing the site and the steps taken by them to distinguish the service from other offerings. The Committee also noted that the Appellant’s complaint focused on the lack of a detailed response from EFTC, and that it may have been appropriate for EFTC to provide the Appellant with an explanation of how the Executive's assessment for distinctiveness was carried out, and how the gardeners’ calendar function fulfils the requirement for the BBC to develop distinctive services on bbc.co.uk. During its assessment of the Trust Unit’s appeal investigation findings, the Committee had access to both the Appellant's site and the BBC site and compared the look and feel of each service, together with the tools which enabled a greater level of personalisation for the subscribers of each service. The comparison of the sites was aimed at assessing the distinctiveness of the BBC site in accordance with the service licence provisions for bbc.co.uk. The Committee noted that the BBC site provided a number of features not provided by the Appellant's site, including BBC weather and television and radio listings that might be relevant to a gardener. The site also providers users with information on gardening choices, such as organic gardening, and links to other non-commercial sites providing further information. It accordingly concluded that the BBC is not providing a service already in the private sector and the site was consistent with the BBC’s public purposes. The Committee also had access to other gardening websites, both free and subscription based, together with non-gardening websites which also allowed user selection of topics or genres which determined the content of subsequent emails or desktop alerts provided to the subscriber. The Committee found that the BBC did have due regard to the distinctiveness of its gardening website, in particular its gardener’s calendar function, before launching this function on bbc.co.uk. It also found, given its view that there is 5 The Trust Unit's investigation identified a number of websites that provide gardening content in the UK, including those operated by Channel 4 and the Royal Horticultural Society, as well as commercial websites, all of which enjoy a substantial volume of visits. The Committee considers the investigation conducted by the Trust Unit to be proportionate and reasonable in relation to this appeal. sufficient distinctiveness between the BBC’s service and the Appellant’s own website, that the BBC is not providing a service already in the private sector. 3. The Committee considered the Appellant’s allegation that the BBC gardening website had been given an unfair advantage in contravention of the CIP through, for example (a) the investment of £184,000 of Licence Fee funds to compete with the private sector; and (b) the promotion of its calendar service on bbc.co.uk The actual spend on delivering the BBC’s Gardeners’ calendar function was £92,000 in 2006/07, not £184,000. The larger of these two figures was a budgetary estimate only, as noted in the BBC’s FOI response dated 8 April 2008. The Committee was satisfied that the CIP was not breached through the launch of the BBC’s gardener’s calendar function on its gardening website using licence fee funds. The use of such funds in this way is ancillary to the provision by the BBC of its core public service activities and is within the approved scope of use of licence fee funds. The Committee found no evidence of the BBC intending to directly compete with other services in the marketplace, and that the promotion of the BBC’s Gardener’s Calendar function on bbc.co.uk has not been given an unfair advantage in contravention of the CIP 4. .The Committee considered the Appellant's assertion, emphasised by its legal adviser, that the use of licence fee funds by the BBC to compete directly with the Appellant was an abuse of the BBC's dominant market position and contrary to competition law. The Committee found no evidence that the BBC had infringed competition law. Taking the provision of gardening website services to users located in the UK as a reasonable frame of reference5, the BBC would not be viewed as dominant. Furthermore, the launch of a new service is generally presumed to be lawful. 5. The Committee examined the Appellant’s complaints that it had not received an explanation as to why no visitor data could be made available for the banner that promoted the gardener’s calendar site on bbc.co.uk. The gardeners’ calendar site sits within bbc.co.uk. The Committee found that visitor data bbc.co.uk is generally unavailable. This is because the additional licence fee spend that would be required to perform customised analysis on the raw data held in the BBC’s web statistics reporting tool would be difficult to justify in respect of the majority of bbc.co.uk. The effectiveness of the BBC's website is instead generally assessed using data on the number of hits on bbc.co.uk sites, as opposed to the more complicated process of extracting and analysing visitor and click-through data for the banners themselves. The Committee found the BBC's explanation as to the lack of visitor data for banner promotions in respect of its gardening website satisfactory. 6. The Committee considered whether BBC staff told the truth about using a BBC email address to join the Appellant's service prior to launch of the BBC’s own website. The BBC’s Freedom of Information Act (“FOI”) response to the Appellant dated 8 April 2008 states that the BBC Gardening website editor signed up to the Appellant's service using a non-BBC email address. This statement is contradicted by the Appellant, who provided evidence that a BBC email address was used on 31 March 2006. The BBC Gardening website editor provided further information in response to on an enquiry by the EFTC and subsequently the Trust Unit that she had used both a personal email address and a BBC email address to sign up to the Appellant's service in response to a press release sent out by the Appellant when it launched its website in March 2006, although she did not confirm the precise dates of doing so or which registration occurred first. The explanation given for the statement in the FOI response is that the editor failed to recall the use of both email addresses at the time the FOI response was being compiled. The Committee found no evidence that BBC staff intended to deceive the Appellant about their actions with respect to signing up to the Appellant's web service when writing the FOI response. The Committee also noted that it is not unusual for staff to use private email addresses when researching work-related issues (for instance when staff are working away from the office), and that referring to such use in the FOI response does not automatically imply any deception. The Committee found that, although there are clear rules about the use of email addresses for online journalism, there are no similar rules covering work related research, and that further guidance could be helpful. The Committee found there was no evidence that BBC staff intended to deceive the Appellant about their actions with respect to signing up to the Appellant's web service. The Committee decided to recommend to the Executive that a review of guidance surrounding the use of email addresses when carrying out research be conducted. 7. The Committee considered the Appellant’s allegation that the BBC did not conduct an adequate Public Purposes assessment of its gardening calendar function prior to launch on bbc.co.uk. The Committee found that the gardening website, and in particular, the gardening calendar function, sits within the bbc.co.uk service licence and is consistent with the Public Purposes of that service. In this case, the Committee found that the development of a gardening calendar to coincide with BBC content – namely Gardener’s Year – was distinctive (see section F.2 above). The Committee also noted that the Appellant’s complaint focused on a lack of a detailed response from EFTC, and that it may have been appropriate for EFTC to provide the Appellant with an explanation of how Public Purposes assessments are carried out, and how the BBC's gardener’s calendar function fulfils the BBC’s Public Purposes remit. The Committee found that the BBC's gardening website and, in particular, the gardeners’ calendar function, sits within the bbc.co.uk service licence and is consistent with the Public Purposes of that service. 8. The Committee considered the Appellant’s allegation that the BBC did not conduct an adequate competitive impact assessment of the BBC's gardening calendar function prior to launch on bbc.co.uk No specific competitive impact assessment documentation exists as the Competitive Impact Policy Statement and Fair Trading Policy were not in place at the time of the alleged breaches (see Section G below for recommendations which have been made by the Committee in this area). However, evidence provided by the BBC Gardening website editor shows that comparable websites were reviewed and assessed to understand how the BBC’s own site could be designed in a way which was distinctive from, thereby impacting minimally on, comparable websites including the Appellant's website The Committee found that the Executive’s approach to the launch of the gardeners’ calendar service minimised its competitive impact. 9. The Committee considered the Appellant’s allegation that the Executive did not provide it with all the information initially requested in its original complaint, including copies of the Executive’s assessments of the BBC’s Public Purposes, the CIP and distinctiveness in relation to the BBC's gardening website. As noted above, no formal assessment documentation exists in relation to these areas - although the Committee found that the BBC had complied with the CIP and requirements for distinctiveness and fulfilment of the BBC’s Public Purposes. The Committee considered that record keeping in these areas needs to be strengthened in future so that, where appropriate, a summary and explanation of underlying analysis can be easily provided to stakeholders on request The Committee found no breach in relation to the Appellant's complaint that it had not received requested information given the informal nature of the assessment carried out but recommended that record keeping in these areas be strengthened. 10. The Committee considered the Appellant’s allegation that the BBC gardening website development team were aware of the Appellant's service and knew their planned BBC service would cause a chilling effect on the Appellant’s subscription business. The Appellant sent a press release to the BBC’s Gardening website editor in March 2006, so it is clear that the BBC was aware of the Appellant’s service at the time of its launch. There is also evidence that BBC staff took up the invitation to sign up to the Appellant’s service and review its features. However, the Committee found no evidence that the BBC knew the gardening website would cause a chilling effect on the Appellant. It also found no evidence that the BBC knew of the the Appellant's site before its hard launch in March 2006. As noted elsewhere, however, the BBC’s attempts to ensure its own service were distinctive, together with its focus on developing established BBC content on multimedia platforms for its audiences, in fulfilment of its Public Purposes, are inconsistent with the Appellant’s view that the BBC intended to create a chilling effect on the Appellant’s business by launching the BBC gardeners’ calendar service. The Committee noted that the Appellant has continued to develop its website and to offer new features to customers. The Committee decided that there was no evidence to support the Appellant’s allegation that the BBC intended to cause a chilling effect on its business. 11. The Committee considered the Appellant’s assertion that planned enhancements of the BBC site replicate certain of the Appellant's site's features and will have a further damaging effect on the Appellant's business, stifling its ability to provide innovative and new features to its customers. The Committee reviewed the contents of both the BBC site and the Appellant's site, and examined the features available on each – including an overview of each home page (where, for example, advice and photo sharing were offered) and a more detailed look at the use of email alerts, both on the Appellant and BBC sites and more widely across different markets. The Committee found no prima facie evidence that the BBC’s planned enhancements will in the future inhibit the ability of the Appellant to innovate and provide products and services to its customers. The Committee considered that the Appellant had requested that the BBC Trust should instruct BBC management to desist from further developments of its gardening website until its appeal investigation had concluded. The Trust Unit had taken the view at an early stage that it would not be appropriate in this case to depart from the Fair Trading appeals procedure by asking the Committee to intervene before the appeal was determined. The Committee found no evidence that the BBC had breached fair trading guidelines and in particular, the CIP and therefore concluded that it would have been inappropriate for the Committee to seek to intervene in the BBC’s operations whilst the appeal was in progress. G Recommendations Whilst noting that there were no elements of this appeal that should be upheld, and therefore no sanctions would be relevant in this case, the Committee noted that it required the following actions to be implemented by BBC management to improve its record keeping and handling of fair trading complaints. 1. Maintain clear records of Public Purposes, CIP and distinctiveness assessments when developing and launching new functionality on bbc.co.uk so that, if requested by stakeholders, appropriate explanations can easily be provided; 2. Ensure assessments of competitive impact remain timely when there is a delay in launching a planned new service; 3. Bring forward plans, in line with the Graf review and the Trust’s review of bbc.co.uk, to develop a formal method for assessing the distinctiveness of new services and sites on bbc.co.uk; 4. Suggest to the BBC Executive that a review be carried out of the guidance provided to staff on the use of BBC email addresses used when researching work-related websites or other internet based services. Public Value and Fair Trading Committee BBC Trust September 2008