Communications Act 2003
Briefing on Clause 319
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'
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
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
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