Draft Communications Bill

Submission to the Joint Scrutiny Committee

Programmes matter

mediawatch-uk welcomes the publication of the Government's Communications Bill and the opportunity the viewing public have been given, through the consultation process, to shape the final Act of Parliament.

Following publication of the Bill most press attention focussed on the proposals to relax ownership rules permitting mergers and acquisitions from abroad. This diverted attention away from the many other important aspects of the draft Bill. The concerns of the viewing public about the damaging influence of some programming have been low on the agenda and have, so far, not been considered directly by the Joint Select Committee currently scrutinising the Bill.

mediawatch-uk believes that the Communications Bill, with 259 clauses, does little to shift the balance of power away from those who currently own and run the electronic media. It is evident from the draft Bill that the thinking behind it gives priority to the interests of the industry rather than to the viewing, and listening, public. Its emphasis on "light touch" and "self-regulation" indicate that market forces and the scramble for ratings and audience share will be the overriding concerns.

mediawatch-uk has already sent to every Member of Parliament and to the Joint Committee a copy of the Briefing Paper 'A Fair Deal For Stakeholders' in the hope that the recommendations we have made to strengthen the position of viewers and listeners will be taken into account.

Of crucial importance in the structure of the new regulator, OFCOM, will be the Content Board and its remit and make up. Its role, described in the Bill, will include "securing a wide range of broadcasting services" and "ensuring the application of generally accepted standards." The Board will advise on "minimum content standards and accuracy and impartiality standards and the approval of codes."

mediawatch-uk has always believed that the Programme Codes and Producers Guidelines ought to assume primary importance in any regulatory scheme because they provide the framework within which programmes should be produced and assessed. The contrived ambiguity of the present codes, plus the fact that they are interpreted only by the broadcasting authorities, has led to the rapid and incremental rise in the presence of violence, obscene language and explicit sexual conduct on television.

Goodbye 'Good Taste and Decency'

Ever since the introduction of Independent Television in 1954 it has always been a statutory requirement that those in authority should ensure/secure that programmes "do not offend good taste or decency or offend public feeling".

The Communications Bill replaces this with new provisions that are open to even wider interpretation. Clause 212 of the Bill states that a duty of OFCOM will be to set standards for the content of television and radio services which shall be contained in a code.

Among other things the code will set objectives with regard to the "protection of minors" and the "inclusion of offensive and harmful material". Consideration will be given to the degree of harm or offence and the likely size, composition and expectation of the audience.

These provisions, which have their origin in a European Union Audiovisual Policy document issued in 1998, are clearly calculated to enable justifiable criticism of offensive programme content to be easily dismissed. In this scheme the viewer or listener, aided by advance programme information, will be expected to avoid the programmes likely to offend and the broadcasters' responsibility not to cause offence is removed. Interpretation of the statute and formulation of the code will rest with the regulator. By removing previous obligations it is difficult to see how the Secretary of State's ambition to 'strengthen content regulation' will be achieved.

People who are concerned about bad taste and indecency on television can look forward to no real improvement as a result of this Bill - unless it is substantially amended in Committee.

Audiences Matter

Content and Consumers

mediawatch-uk agrees with those who have criticised the draft Bill for not delineating satisfactorily the respective roles and remits of the Content Board and the Consumer Panel. We welcome the establishment of both but believe it is essential that once OFCOM becomes operational the public know from the outset whether the Board or the Panel is the appropriate point of contact for their concern.

The Content Board should be the point of contact for any comment about any broadcast programme on television or radio. Moreover, in order to make this clear it would be helpful to call it the Content Standards Board. The Board should have a high public profile with its own well-publicised address, telephone number and e-mail address.

OFCOM should require that this public information should be regularly transmitted, at least once a week at varying times and days, on all licensed television and radio services. It should be done in a way that will encourage the viewing and listening public to communicate with the broadcasters. It is important, and in the public interest, that these provisions are required in the Bill.

The Consumer Panel should deal solely with consumer issues, like, for example, reception, pricing, advertising, marketing and so on. The Consumer Panel should also have a high public profile with its own address, telephone number and e-mail address.

Programme standards for television and radio services.

212 OFCOM's standards code.

mediawatch-uk welcomes the draft Bill's provision for a standards code and the duty for OFCOM to set … such standards for the content of programmes..". We welcome also the duty to "secure the standards objectives".

However, experience from the past shows that similar statutory duties laid upon the broadcasters have failed with regard to securing that programmes "do not offend against good taste or decency, incite to crime or to lead to disorder or offend public feeling". (Broadcasting Act 1996, Clause 6(1)(a))

Moreover, the task of drawing up a Programme Code, although fulfilled by the ITC and the BBC, the reviews and revisions of recent years have tended to accommodate more and more programming and imagery that seems to conflict with the requirements of the Broadcasting Act above.

For example, the April 2001 version of the ITC Programme Code leaves out the requirement, included in the January 1998 version, in section 1.6 on Sex and Nudity, that "The portrayal of sexual behaviour, and of nudity, needs to be defensible in context and presented with tact and discretion".

The fact that in recent years the ITC has granted licences to a number of soft pornography channels suggests that the Code has been adapted to conform to programmes rather than programmes made to conform to the Code.

The presence of programmes about pornography and the sex industry in general, notably on Channel 4 TV and Channel 5 TV in recent years, indicates a lamentable dereliction of duty on the part of the ITC in doing nothing to stop or reverse the trend. The fact that such important decisions on programme content have taken place without any public or parliamentary scrutiny is also a matter of concern substantiating the feeling felt by many that broadcasters have their own agenda.

mediawatch-uk believes that a detailed and well defined Programme Code is the key to the maintenance of standards. Experience shows that ambiguity, at this level, whether contrived or not, is not the way to secure the high standards in television programming that audiences expect.

OFCOM must give priority to the task drawing up a Programme Code and we welcome the Secretary of State's statement in August 2001 that a common code is being contemplated. This makes good sense and would dispel the confusion arising from the fact that there are three Codes: an ITC Programme Code, BBC Producers Guidelines and a Broadcasting Standards Commission Code of Guidance.

OFCOM's statutory task of setting standards needs to be based on some principles and these should represent a departure from the vague and imprecise terms of the present codes.

Above all the code should recognise the power and influence of television in shaping attitudes and behaviour. The latest scientific research published 29 March 2002 in the American SCIENCE magazine (Vol. 295) concludes that viewing violence increases aggressive behaviour. Accordingly, OFCOM's Code should at least draw attention to scientific research and require producers to avoid perpetuating antisocial behaviour arising from violence in entertainment.

mediawatch-uk welcomes the draft Bill's proposals for the standard's objectives (212 (2))

2 (a) Although there is a requirement that "persons under the age of eighteen are protected" we believe it would be helpful to state what they are to be "protected" from and what means are proposed to achieve this. Although there is no specific mention of the so-called "watershed" we believe that constraints of this sort have lost their meaning and force in the 24-hour, multi-channel, television environment. The fact that a very high proportion of this age group now have their own television viewing equipment, which they tend to view without supervision, renders the "watershed" invalid. If it is intended to protect under 18 year olds from unsuitable imagery it would assist understanding if it were stated what this means.

2 (b) This standards objective has been lifted from existing legislation and mediawatch-uk agrees that "material likely to encourage or to incite any crime or disorder is not included…". However, we believe that the word "incite" should be clarified as to what constitutes an incitement.

mediawatch-uk believes that the constant portrayal in film and drama of crime and disorder, often in a glamorised and stylised fashion, could be said to be an incitement. Indeed, the British Board of Film Classification in its Annual Report of 1996/97 stated "America has the highest crime rates in the developed world and produces the most violent entertainment. The most popular stars are the macho heroes who use violence successfully and therefore demonstrate and validate its use ... It (violence) has also become far more pervasive, since it occurs in a much larger proportion of films, particularly those targeted at a young audience".

The Government is particularly concerned about the "national emergency" of crime and disorder among the young. New punitive measures have been brought into being by the Home Secretary in an attempt to deal with this growing problem.

mediawatch-uk believes that television, which screens numerous films portraying violence each year, contributes significantly to "yob culture" and the overall impact of the fictional portrayal of crime and violence ought to be regarded as an incitement. Accordingly, OFCOM's interpretation of what "incite" means ought to be much broader and this should be reflected in the code.

2 (c) mediawatch-uk agrees that news - and current affairs - should be presented with due impartiality. We believe that it is especially important that impartiality is evident in individual programmes rather than the current practice of being impartial over time, for example, in a series. The increasing number of channels means that the patterns of viewing are have become much less consistent and this practice should be acknowledged and recognised in the proposals.

2 (d) mediawatch-uk agrees that news should be reported with due accuracy. OFCOM should, therefore, have the capability of determining "due accuracy" and have powers to take action where inaccuracies are evident.

2 (e) mediawatch-uk agrees that a "proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes". However, we believe that the "proper degree of responsibility" needs to be clarified. What is a "proper degree" and, in this context, what is "responsibility"? Has it to do with false claims or promises or inappropriate fund raising or more to do with theology and/or belief and practice?

2(f) mediawatch-uk notes that the draft bill abandons the requirment for OFCOM to "secure that programmes do not offend good taste and decency…or offend public feeling" as set out in current legislation.

The proposal to apply "generally accepted standards" causes us more concern than anything else in this section. It begs the question: "What are generally accepted standards" and how are they to be determined? And by whom are these standards to be accepted?

In order to determine this requirement a very great deal of new research is going to be needed to ascertain what is "generally accepted". This would suggest that researchers at the media faculties of certain universities will kept in work for a very long time indeed! OFCOM can be certain that very many people are concerned about what is transmitted now and this indicates a serious failure of the present regulatory regime that OFCOM must correct rather than incorporate into the new regime. The trust that many people have in the regulators that their best interests will be served has been betrayed. The interests of the industry are the highest priority. It is very rare for any broadcaster to admit an error of judgement with regard to actual content of any programme. Errors with regard to timing and scheduling are less rare as the Complaints Bulletins show.

Curiously, this clause proposes to "provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material". mediawatch-uk notes the emphasis here on protection from the inclusion of offensive and harmful material. This seems to imply that offensive and harmful material is legitimate provided there is a means of protection from it. The onus here rests with the viewing and listening public to avoid offensive and harmful material rather than placing the onus on the broadcaster to stop transmitting it. It would be more in keeping with the role of an effective regulator, and in the public interest, if this clause required OFCOM to secure the EXCLUSION of offensive and harmful material. It would also aid understanding if the terms "offensive and harmful" could be defined. It would also be helpful if the "and" is replaced with "and/or" because offensive may not be harmful and harmful may not be offensive.

Many people are offended by bad language on television and radio whether or not it is gratuitous or included on the grounds of "realism". Such language undermines educational standards and communication skills and it could be said to be harmful in so far as it is another aspect of aggressive behaviour. It is well known that continuing profanity in programmes also causes deep offence and hurt to many people. This could also be said to be harmful and offensive.

The latest research, published this year by the National Foundation for Family Research in Canada, concludes that pornography too causes several behavioural, psychological and social problems. It encourages a deviant attitude towards intimate relationships such as perceptions of sexual dominance, submissiveness and sex role stereotyping or viewing persons as sexual objects. Sexual aggressiveness, sexually hostile and violent problems that are linked to pornography.

Taking research into account, the licensing of pornographic channels and the consequent growth of pornographic programming is offensive and harmful and therefore OFCOM must take a robust regulatory attitude towards such material.

2 (g) mediawatch-uk agrees that unsuitable advertising is prevented. However, the notion of "unsuitable" needs clarification and definition. The present secretive process by which television advertising is approved by the Television Advertising Clearance Centre should be open to public scrutiny. It is not good enough for regulation to be exercised after transmission in the light of adverse public response.

OFCOM must involve the Consumer Panel in drawing up a Code of Advertising Standards and Practice and the Consumers Panel should in future have a role in the process by which advertisements reach the screen. We would suggest the present ITC code on advertising is a good starting point although Clause 13 on taste and decency and respect for human dignity should be more rigorously enforced. The revisions removing prohibitions introduced in May 2000 should be reviewed.

2 (h) mediawatch-uk believes that "unsuitable sponsorship" could be better defined.

2 (i) mediawatch-uk agrees that there should be "no undue discrimination" but that this could be better defined.

2 (j) mediawatch-uk agrees with the proposal that subliminally conveying messages should be prohibited.

(4) (a) mediawatch-uk believes, from past experience, that this clause relies too much on the discretion of OFCOM. The "degree of harm or offence likely to be caused" is indeterminate and no parameters are set in the Bill. This is a serious weakness.

At the present time the Broadcasting Standards Commission is required to consider every complaint within its statutory remit. In this scheme the number of complaints received has no bearing on whether the complaints are considered. By requiring OFCOM to assess "the degree" it will be legitimate for no complaints to be considered simply because there may be few by comparison to, say, the number of viewers. Moreover, without some definition of "harm or offence" it is impossible to measure any "degree". It is imperative that this clause is clarified in the public interest but should it stand it should be complimented by requirements for OFCOM to actively canvas public response to programmes generally.

mediawatch-uk believes that all television and radio services should be required to regularly and frequently advertise the address, telephone number and e-mail address of OFCOM or the 'Content Board' so as to actively encourage public participation. Only in this way can there be any accurate assessment of "degree" of harm or offence".

4 (b) The "degree of harm or offence" should not depend upon "the likely size and composition of the potential audience". This is a recipe for a free-for-all in which standards will not be "set" objectively but will be variable according to a number of irrelevant factors not related to actual programme content.

4 (c) The "likely expectation of the audiences" seems to further remove the role of OFCOM to regulate harmful or offensive programme content placing the onus for avoiding it on to the viewer or listener. Equally, this clause depends for its efficacy on advance programme information and the necessity for viewers and listeners to make themselves aware of it.

This is another means by which responsibility for programme content is simply devolved to viewers and listeners and is not what ought to be expected of a scheme of regulation.

4 (d) This clause provides a rationale for OFCOM's role in promoting "media literacy" so that viewers and listeners are enabled to make informed choices. These clauses suggest that "light touch" and "self regulation" - mean respectively that OFCOM will have little to do with enforcing any standards and "self regulation" applies to viewers and listeners rather than to broadcasters.

4 (e) the intention of this clause requires clarification in respect of the circumstances in which a change of the application of standards is necessary.

4 (f) mediawatch-uk agrees that the independence of editorial control is safeguarded but within the limits set by the code.

mediawatch-uk welcomes the requirements set out in Sections 217, 218, 219, 220 and 221.

With regard to monitoring programmes we believe that a well-defined Programme Code is essential if this task is to be conducted effectively.

We draw attention here to our proposal, set out in 'A Fair Deal For Stakeholders' for a Compliance Officer to be required for every licensed television or radio service. In a multi-channel environment a single regulator cannot possibly monitor the output of every channel. The shift towards "self regulation" by broadcasters should not be limited solely to the proposed triennial performance review by OFCOM. There will surely be times when monitoring will give rise to intervention and the Compliance Officer should be the means through which accountability is exercised.

mediawatch-uk concludes its submission to the Joint Select Committee at this point owing to the limited time available to present evidence.


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