Communications
Act 2003
Briefing on Clause 319
Programmes matter
mediawatch-uk believes that the Communications Act 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 indicates that market forces and the battle for
ratings and audience share will be the overriding concerns.
Indeed the Secretary of State for Trade and Industry, writing in The
Parliamentary Monitor (No 98 October 2002) said:
"The aim of the Communications Bill is to make Britain the most
dynamic, innovative and exciting broadcasting market in the world. And at the
heart of it lie our measures to promote competition".
Following publication of the draft Bill little attention was focussed on
the concerns of the public about the damaging influence of some programming.
mediawatch-uk has already sent to every Member of Parliament 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."
The functions of the Content Board are set out in Clause 12 of the Communications
Bill and we note that these include "matters that concern the contents of anything that is or may be
broadcast…"
Clause 13 sets out the role and function of the Consumer Panel which, we
note, shall not include research relating to public opinion with respect
to the contents of anything broadcast.
mediawatch-uk has always believed that Programme Codes ought to assume
primary importance in any regulatory scheme because it provides 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.
We note, in Clause 319, that OFCOM shall have a duty to set, and from
time to time, review and revise, such standards for the content of programmes
to be included in television and radio services…". We examine below what
we believe to be the shortcomings of Clause 319 (2).
Goodbye 'Good Taste and Decency'
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ver 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, in our opinion, are capable of wider interpretation.
Clause 319 of the Act 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 "persons under the
age of eighteen" (319(2)(a)) and the "inclusion in such services of
offensive and harmful material". (319(2)(f)) Consideration will be given
to the degree of harm or offence (319(4)(a)) and the likely size, composition
and expectation of the potential audience. (319(4)(b)).
These provisions, which have their origin in a European Union
Audiovisual Policy document issued in 1998, (see 'Converging Technology')
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.
Programme standards for TV and Radio
Clause 319: OFCOM's standards code
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ediawatch-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". (319(1))
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 1990, Clause
6(1)(a))
Moreover, the task of drawing up a Programme Code, although fulfilled by
the Independent Television Commission, 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 ITC has granted licences to a number of soft pornography TV channels
which suggests that the Code has been adapted to conform to programmes rather
than programmes made to conform to the Code.
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 standards 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 public's
confusion arising from the fact that there are currently four Codes: an ITC
Programme Code, BBC Producers Guidelines and a Broadcasting Standards
Commission Code of Guidance and a Radio Authority Programme Code.
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 and guidelines.
Above all the standards 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) (see www.sciencemag.org)
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 criminal and antisocial behaviour arising from
violence in entertainment.
We note the emphasis in Clause 14 on conducting and publishing research
and to take account of the results (14(1)(a)(b)).
mediawatch-uk welcomes the draft Bill's proposals for the standard's
objectives (319(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 TV sets, 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 in the
this Clause what this means.
mediawatch-uk
recommends the following amendment to this clause:
add: from
material likely to cause harm or disturbance.
Click
here for comments and observations on the V-chip,
watershed and classification
2 (b) This standards objective has been lifted from
existing legislation and mediawatch-uk agrees that "material likely to
encourage or to incite the commission of any crime or disorder is not
included…". However, we believe that the word "incite" should be
clarified in this Clause 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, (see 'Promoting a Culture of Violence')
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 standards
code.
mediawatch-uk
recommends the following amendment to this clause:
add: for
the purposes of this Act the frequent depiction of violence involving firearms,
offensive weapons and physical assaults should constitute an incitement.
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 Act. Accordingly, we welcome the provisions in Clause 308
intended to safeguard impartiality.
We do not agree with the ITC's recent suggestion, set out in the study 'New
News, Old News', published 31/10/2002, (see old ITC website at www.ofcom.org.uk) that OFCOM should give
broadcasters greater freedoms 'to depart from standard rules and codes on
issues such as impartiality'. The airing of strong opinion from presenters
and less fact in news coverage, especially on 'niche' channels, is a proposal
that should be rejected because it is not in the public interest.
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 requirement 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 here 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 selected
universities will be kept in work for a very long time indeed!
OFCOM can be certain that very many people are concerned about what is
transmitted now. 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. It is very rare indeed 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
BBC's, ITC's and BSC's 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 not to transmit 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 in the Bill. 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 meta-analysis of harms of pornography, published in April 2002
by the National Foundation for Family Research in Canada, concludes that
pornography too causes a number of 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.
(The full text of the NFFRE pornography study is available on their
website. A username and password are needed.) Click here
for the Press Release issued 12 March 2002)
Taking research into account, the licensing of pornographic channels and
the consequent growth of pornographic programming is offensive and harmful and
damaging to health and morals (Clause 10 ECHR). Therefore, OFCOM must take a
robust regulatory attitude towards such material.
In 1996 the then National Viewers' and Listeners' Association, in a
submission on the renewal of the BBC's Royal Charter, suggested a formula for
content regulation in 'Towards a Viewers Charter'
Click here
(see blue text).
mediawatch-uk
recommends the following amendment to this clause:
add: for
the purposes of this Act "offensive and harmful material" should be
defined as anything which undermines human dignity, family life, law and order,
civilised values, health and morals.
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 any 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 if not reinstated. Click here
for response to ITC consultation.
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 complemented by requirements for OFCOM to actively canvas
and invite public response to programmes generally.
mediawatch-uk believes that all television and radio services should be
required in the Act to regularly and frequently advertise the address,
telephone number and e-mail address of OFCOM, the Content Board and the
Consumer Panel so as to actively encourage the widest 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
important 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
recommends that the whole of Section 319 (4) should be deleted because it seems
to us to serve only the interests of the communications industry providing a
range of reasons why harmful and offensive material may be excused.
mediawatch-uk welcomes the requirements set out in Clause
319(5)(6)(7)(8)
With regard to monitoring programmes we believe that a well-defined
Standards Code is essential if this task is to be conducted effectively.
Accordingtly, we welcome the requirement in Clause 312 the publication
of a draft of the proposed code and the following consultation process.
We welcome the requirements in Clause 313 on the observance of the
Standards Code and the requirement to establish procedures for the handling of
complaints.
We welcome the requirements in Clause 316 to publicise OFCOM's functions
in relation to complaints.
We welcome the duty placed upon the Secretary of State in Clause 317
with regard to the imposition of Proscription Orders on foreign services.
However, there is a certain inconsistency apparent in Clause 317(3)(a) which
states that "Matter is objectionable for the purposes of subsection (2)
only if - it offends against good taste and decency". Clause 307(f) sets a
new and different test.
Moreover, a Proscription Order against the pornographic satellite TV
channel 'Satisfaction' was recommended in September 2000 by the
Independent Television Commission. This Proscription Order has still not
been laid by the Secretary of State!
We draw attention here to our proposal, set out in 'A Fair Deal For
Stakeholders' (Click here), 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.
For more comment and opinion on Programme Content Regulation:
Click
here for 'Regulation: the Key Issue
Click
here for 'Empowering the Viewer'
The Second Reading debate on the
Communications Bill on 3 December 2002 can be seen at: www.publications.parliament.uk
Clause 319 of
the Communications Bill was debated by Standing Committee E on 28 January 2003.
For latest news and developments,
including the full text of Communications Act 2003, visit: www.ofcom.org.uk
Revised 10/10/2003
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