EMPOWERING THE VIEWER
he objective of any system of content regulation should surely be to set standards and to provide a mechanism by which they are maintained or improved. The system should provide adequate safeguards and appropriate sanctions against those who abuse it.
As with any system of regulation it must be based on principles that are clearly defined in order to enable proper and effective application by the competent authority. It should be obvious to the competent authority, to the practitioner and, above all, to the consumer what the objectives and principles are. Experience demonstrates that it is futile to attempt to regulate content using schemes that are not clearly defined, ambiguous and interpreted only by regulators.
Any system of regulation must have at its core aspirations to show respect for the audience, to present the best possible information, education and entertainment. We agree with Lord Attenborough, and others, who called, in December 1999, upon the BBC to have "far sighted plans and an undiminished passion for excellence". We would suggest that this principle should be the overriding guide for all channels. Parliament must ensure that a framework of legislation requires this and that it complements other broader social policies.
Politicians talk of having "joined up government" where different departments co-operate and harmonise application of policy with others. But it is clearly pointless to have stringent law and order policy, for example, aimed at encouraging good and responsible citizenship if it is undermined by lawlessness and disorder presented and normalised in entertainment. It is equally pointless to promote policies aiming to encourage family cohesion and stability if marital infidelity and sexual promiscuity is constantly portrayed in entertainment. It is also pointless to attempt to raise educational standards of literacy and improve communication skills if these are undermined by the use of obscene and profane language and poor expression in popular entertainment.
The beginning of a new millennium surely presents a timely opportunity to take stock of the existing system of content regulation and overhaul those aspects which are failing. In the paper which follows we identify the key points of failure and make recommendations which we believe would improve the system for the benefit of everyone.
THE ESSENTIAL PROBLEM
he essential problem with broadcast content regulation in Britain (and around the world) is that there is no definitive statement of what constitutes unacceptable programme material. In years gone by there was a much more tangible public consensus of what was unacceptable. Responding to this broad consensus Parliament ensured, in the Royal Charter of the BBC and in the Broadcasting Act, that a general statement of principle on programmes was included.
The Broadcasting Act 1990 states in Section 6(1)(a):
"That the (Independent Television) Commission shall do all that they can to secure ... that nothing is included in ... programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling"
The Royal Charter of the BBC, renewed by Parliament in 1996, states that the Corporation, acting in the public interest, shall do all they can to secure the same requirements. Sections 5.1(d) and 5.3(a) and (b).
This Association has long believed that this statement of principle urgently needs to be properly defined in the public interest. In our response to the Government's White Paper, (Cmd 2621), published in 1994, on the Future of the BBC, we said that the renewal of the Charter was an ideal opportunity to put in place better defined requirements on programme standards that could be better enforced by those in positions of authority, representing the public interest, and better understood by all involved in programme making.
We drew attention to the public undertaking, in February 1988, made by the then Chairman of the Governors, Marmaduke Hussey, who told the Home Secretary that he would "take firm steps to eradicate unnecessary and gratuitous violence, sex and bad language from our programmes".
We also drew attention to a statement by the BBC's then Director General, John Birt, in March 1993, who said that the Corporation would not promote the "culture of cruelty and violence".
Our proposal, which was not taken up by the Government, was to combine the existing statement of principle with the above statements thus:
"That the programmes for which they are responsible should not offend good taste or decency nor contain unnecessary and gratuitous violence, sex or bad language or incite to crime or disorder or promote a culture of cruelty and violence or be offensive to public feeling."
n our efforts to press the Broadcasting Authorities for their understanding of the above statutory and Charter requirements we wrote to the BBC for an explanation. An official responded as follows:
"In general terms the BBC is committed to broadcasting a wide range of programmes which cater to the various needs and tastes of different audiences and to experimenting with new programmes and performers. But this means that sometimes we broadcast things which are not to everyone's taste.
"Our programmes should not, of course, offend against good taste or decency, encourage or incite crime or lead to disorder or offend public feelings. The question of what is good taste or decent is a matter of judgement and the boundaries change over time. Different people hold different views".
We put a similar question to Sir Christopher Bland, present Chairman of the Governors when he took part in a BBC Online "chat with the Chairman" on 20th July 1998. We asked him to explain how the Governors ... secure that programmes comply with the Royal Charter.
"The most important mechanism for doing this is via our Producers Guidelines, which every programme maker in the BBC, and also our independent producers, have to understand and abide by. As a failsafe mechanism, we have our complaints procedures, which go all the way up to the Board of Governors; in addition we are regulated by the Broadcasting Standards Commission on matters of taste, decency and fairness."
The Broadcasting Standards Commission, although a statutory body, has advisory status only rather that powers to regulate. The Director of the BSC, Stephen Whittle, took part in a discussion on the Channel 4 programme 'Right to Reply' 28/3/98. On taste and decency issues he said that such matters are:
"difficult and, from time to time, extremely subjective judgements about which there is general disagreement in the community. I think what the BSC is saying to broadcasters at that point (when a complaint is upheld) is 'this is where we believe at this moment the line runs ... now, the line keeps moving'".
THE GOVERNMENT'S POSITION
his Association entirely agrees with the statement in Chapter 5.5(a) of 'Regulating Communications: approaching convergence in the Information Age', a Green Paper published in July 1988, that:
"The regulatory process starts with Government. Regulators must have a clear legislative framework within which to operate. With greater clarity of duties and objectives comes improved accountability for their delivery - to Parliament, to Ministers and to consumers".
However, little was said about how this would be achieved. Moreover, since the 1960's a policy of non-intervention in matters of programme content regulation has prevailed. In a written answer to Desmond Swayne MP on the 14/12/98, Janet Anderson MP, Minister for Broadcasting at the DCMS, stated that:
"Broadcasters are subject to the general law and are required to comply with the regulators' guidelines on programme content. It is a long standing and, I believe, a fundamental principle that Government does not intervene directly in issues of broadcasting content. Responsibility for enforcing the rules lies with the regulators, who are charged with safeguarding the public interest".
Corrective Government action, apparently, has never been envisaged even in the face of mounting evidence that the regulators are failing to regulate.
The Secretary of State for Culture Media and Sport, The Rt Hon Chris Smith MP, when addressing the British Video Association in November 1996, said then that such regulation should be carried on with "the lightest possible touch".
In July 1999 Mr Smith was interviewed at length for 'Broadcast'. He said:
"The broad thrust that we set out in the recent white paper (Regulating Communications) was very much along the lines of evolutionary change, but change trying to achieve the lightest regulatory touch consistent with maintaining the public interest"
This attitude, in the last few years, has had a noticeable effect on TV standards of taste and decency so much so that many people within the industry have publicly criticised the general trend in "tacky" programming. The last sexual taboo was broken on British television when Channel 4 transmitted a documentary in its 'Hidden Love' series on 14 September 1999 which examined bestiality. The programme, 'Animal Passions', included an interview with a Missouri man, Mark Mathews aged 47, who engages in sexual practices with a "beautiful little pony" named "Pixel" which he said he loved and "married" in a special ceremony in 1993. A woman who engages similarly with a labrador-cross dog said that she derived great pleasure from feeling the dog's fur against her skin.
he Catholic Bishops of England and Wales in their pre-election publication, issued in 1996, "The Common Good", described the process of deteriorating standards thus:
"While Britain continues to enjoy standards of broadcasting which are, rightly, admired elsewhere, those standards cannot be taken for granted. There is, for instance, a constant drift towards more screen violence, greater use of obscene language and ever more explicit depictions of intimate sexual activity. It cannot be argued that broadcasters are merely responding to changes in public taste, as they play a major part in shaping that taste."
"We must point out that it is always easier to drive taste in these matters downwards rather than upwards. Each step is a small one by itself. If nobody takes responsibility for each incremental movement, however, the eventual result will be the decay of public standards of decency to the point where they no longer exist, yet without at any time a deliberate decision having been made by society that this is what it wants. This is one more domain where a large number of individual consumer choices, exercised under the supposed sovereignty of free market forces, can have a markedly deleterious effect on the common good."
n December 1998 the BBC launched its prospectus 'The BBC Beyond 2000'. The books which accompanied the launch set out the Corporation's future undertakings and commitments to the licence fee payers and acknowledged that:
"Television and Radio have proved to be the most powerful media yet to be invented".
Moreover, Sir Christopher Bland, the Chairman of the Governors, proudly boasted that the BBC had "shaped the taste of the nation".
Sir Christopher Bland described the BBC's Producers' Guidelines (first published in November 1996 and revised in February 2000) as the most comprehensive ethical code for broadcasters anywhere in the world.
We acknowledge that in many respects this is true but some of the more critical clauses on actual programme content lack definition and place the onus for offence on audience perceptions and expectations rather than on the producers and the programmes they make.
For example, in section 6.10, SEX, the Guidelines state:
"The portrayal and depiction of sex will always be a part of drama and factual programmes because of the important part it plays in most people's emotions and experience. In this, as in most areas of taste, public attitudes have shifted over time. Broadly, audiences in the United Kingdom have become more liberal in their acceptance of sexually explicit material while attitudes around the world are mixed ....
"We use the Watershed to try to ensure that adults view what is intended for adults. Sexual activity is linked to moral decisions, therefore its portrayal should not be separated from an acknowledgement of the moral process.
"We must draw the line well short of anything that might be labelled obscene or pornographic."
The ITC Programme Code in Section 1.5, Sex and Nudity, states:
"The Portrayal of sexual behaviour, and of nudity, needs to be defensible in context and presented with tact and discretion. Of greatest concern are scenes of non-consensual sexual portrayal, including rape, and particularly where there is graphic physical detail or the action is to any degree prolonged."
Judging by contemporary programming on Channel 4 and Channel 5 it is apparent that the meaning of this clause has been so distorted and diluted as to mean anything or nothing.
It is extra-ordinary, for example, how the ITC can justify the transmission of the four-hour gangster epic 'Once Upon A Time In America' which includes the depiction of two brutal rapes. This film has been screened by Channel 4 TV three times in four years. (May 1994, February 1996 and April 1998).
The ITC Programme Code says in the foreword, clause (h):
"The Code does not attempt to cover the full range of programme matters with which the ITC and licensees are concerned. This is not because such matters are unimportant, but because they have not given rise to the need for ITC guidance. The Code is therefore not a complete guide to good practice in every situation. Nor is it necessarily the last word on the matters to which it refers. Views and attitudes change, and any description of what is required of those who make and provide programmes may be incomplete and possibly out- dated. The Code is subject to interpretation in the light of changing circumstances, and on some matters it may be necessary to introduce fresh requirements or advice from time to time."
It is noteworthy that when David Sullivan, proprietor of the 'Sport' newspapers, was granted a licence for his pornographic channel 'Babylon Blue' in January 1995, the ITC was reported to have said that there were no grounds to outlaw the new station because Mr Sullivan has given assurances that it will comply with the ITC's codes. An ITC spokesman said:
"We recognise the possible controversy this will create but we have no discretion to refuse a licence. The proposed service will be available only to those who choose to subscribe. It will be broadcast late at night, encrypted, and the people who subscribe know what they will be watching. Any service has to comply with our codes and the company is aware that if they breach this we can take action. This can range from fines to withdrawing their licence".
On the 27 March 2000 the ITC presented its Annual Report and Accounts to Parliament. Among the Licensees listed on pages 24 and 25 are 'Babylon Blue' and a number of other satellite television services which transmit pornographic programming, these are, 'The Adult Channel', 'Bravo', 'The Penthouse Channel', 'Playboy TV' and 'The Adam and Eve Channel'. We understand that 'Playboy TV' has recently been given the go-ahead to begin transmission at 8.00pm instead of 10.00pm.
Problems of compliance continue to arise. On Channel 5 a thirteen part series 'Sex and Shopping' began on 29th October 1998. This depicted explicit sexual activity of every description, and attempted to ridicule and discredit all legal constraints on obscenity. The ITC, in its finding published on 21st May 1999, said that it had "intervened with Channel 5 over the second, fourth and fifth episodes of the series in respect of taste and decency".
The Annual Report of the ITC for 1998 states that some of the imagery included in this series was "unacceptably explicit for transmission at any time"
The finding concluded that some parts of the series were in breach of the Programme Code. Channel 5 TV has since repeated the first series, having increased the pixilation on some images, and has screened a second series which carried on where the first left off!
Channel 4 TV and Channel 5 TV continue to transmit programmes which seem difficult to reconcile with the statutory obligations and with the ITC's Programme Code. The ITC has for too long done nothing to resist the demands of some in the broadcasting industry whose sole purpose in life is to sweep away all constraints. On Sunday 2 April 2000 Channel 4 TV screened the notorious video 'The Driller Killer'. This film was made in 1979 but because of the brutal and sadistic violence was not granted a video classification until 1999. A Channel 4 spokesman is reported to have said:
"Film is an evolving medium and what was once considered unsuitable can now be viewed in a different light. We're keen for viewers to judge for themselves".
A system of Content Regulation was devised by Parliament which assumed that an active role would be taken by the regulatory authorities. The Broadcasting Act states that the ITC should secure that programmes comply with requirements. The above statement by Channel 4 suggests that this task is no longer the duty of the ITC but is now down to the subjective judgement of individual viewers.
THE "GRADUATED" OR "TIERED" APPROACH
'Regulating Communications' went on to suggest that regulation will progress in an evolutionary way and will be
"based on categories of service which reflect differing consumer expectations."
This general approach to content regulation was set out in 'The Multi-Media Revolution', a Report from the Select Committee on Culture, Media and Sport published in May 1998. The select Committee suggested a "tiered" system of content regulation dependent upon the type of television service in question. The rationale for such a system was said, with resignation, to be the best way forward because
"over time, public sector regulation of content will become increasingly difficult; technology will erode the State's capacity to intervene …" (117)
'Regulating Communications' acknowledged that:
"the public expects, and is entitled to expect, a basic level of 'negative' regulation - preventing the transmission of undesirable material - so far as this is possible".
Negative regulation is described as:
"that which seeks to prevent the transmission of material which may
offend viewers (eg by portraying violence, sexual activity or containing bad language) and of material which is misleading". (2.14)
The "tiered" system of regulation won favour with the Government and in it's publication issued in June 1999, 'Regulating Communications: The Way Ahead', the results of the consultation on technical convergence, it was stated:
"Many responses to the Green Paper suggested that a shift to greater reliance on self-regulation of content was desirable and necessary. But most respondents also recognised that content regulation should be graduated according to the degree of viewer control over the service received. The Government shares this approach." (3.12) (see also 1.14).
"Generally available free-to-air broadcast services, which arrive unsolicited to the home and which are accessible at the flick of a switch, should continue to be subject to detailed content controls". (3.12)
The European Commission in its Report 'The Digital Age: European Audiovisual Policy', published October 1998, also set out this approach in III.2, Legal framework and regulatory bodies:
"In general, "traditional" procedures should be replaced by lighter, simpler systems operating in a graduated way as a function of the pervasiveness of the medium (eg pay-per-view and near video-on-demand services should only be subject to minimal requirements, whereas terrestrial free-to-air television will continue to need a higher level of regulation in the general public interest)."
"The regulatory framework, in order to evolve without the need for constant adaptation and the consequent lack of legal security, should be more based on principles and consist less of detailed rules. Such principles, however, should include pluralism, the need to provide for quality content, respect for linguistic and cultural diversity and the protection of minors".
The question is whether Parliament intended, in the public interest, to set objective standards for broadcasting or whether it was intended that subjectivity should prevail. The "graduated" regulation idea suggests that content depends upon ease of access. Is this really what was intended or has the proposed scheme simply evolved or has the evolution been pushed in a certain direction by those with a vested interest?
RESPONDING TO THE CONSULTATION
ediawatch-uk welcomes the opportunity to submit ideas and recommendations to the Joint Communications Reform Team. We are aware that all aspects of regulation are under review but we confine ourselves in this paper to the question of Content Regulation.
It has always been understood that Parliament, in the Broadcasting Act and in the BBC's Royal Charter, intended to set objective standards for programme content that should apply to all channels. This Association believes that Content Regulation will remain of critical importance in the digital age as communications technology converges. Clearly there will be a need for uniform standards of content and a uniform scheme of regulation. Ways must be found to improve and maintain standards of content rather than simply surrender them to the vagaries of market forces.
This Association believes that the "graduated" or "tiered" approach undermines completely the established aspiration for objective standards and as such will present real difficulties for content regulators in maintaining or improving standards. Should the Government introduce this proposal the change will have come about with little informed public or parliamentary debate and will surely pave the way for those who have an interest in driving standards of taste and decency ever downwards.
It is noteworthy that Lord Birt, former Director General of the BBC, speaking in July 1999, warned that instant accessibility to what he described as the raucous, the vulgar and the sensationalist could degrade British culture. The digital TV revolution could, he said, create a knowledge underclass and could undermine our social cohesion.
A consequence of the new multi-channel environment of British broadcasting today is that audiences have fragmented and in the unedifying scramble for high ratings and audience share standards have collapsed. Nowhere is this more apparent than with Channel 5 TV: so bad has the situation become that The Rt Hon Chris Smith MP, Secretary of State for Culture Media and Sport, made an unprecedented statement in the House of Commons, 12/6/2000, rebuking Channel 5 TV. He said:
"We have noted in recent days very considerable concern about some of the content on television, particularly Channel 5". However, "Government cannot and should not, of course, directly intervene, but I believe that the broadcasters have a commercial and moral duty to take good account of the views of the public and I urge them to do so".
This Association welcomes and appreciates the concern expressed by Mr Smith but we really wonder whether the views expressed by the public will make any difference to the trenchant position taken up by Mr David Elstein, chief Executive of Channel 5 TV, who told a correspondent that he respected her views but they did not "represent the vast majority of my viewers ... I am therefore unwilling to change Channel 5's output to meet your preferences".
This attitude, of course, is not new among broadcasting officials. For example, in March 1988 the Head of Programme Liaison at Thames Television, in a reply to a viewer who complained about 'The Fear', concluded
"You don't like it but this is why we have four network channels, to give the viewer choice."
The on-going controversy surrounding 'News at Ten' has also given rise to unprecedented criticism from the industry of the sleazy and tacky programmes which now appear routinely on ITV in the late evening slot. Sir Alastair Burnett has described these programmes as "weak series, entertainment trivia and mildly pornographic programmes".
This trend is apparent on independent television generally. The culpability of the Independent Television Commission in allowing this developing situation to arise was illustrated again when, as a gesture to the advertisers, a rebuke was issued in the Annual Performance review published in May 2000. The ITC was reported to have strongly criticised ITV for "lightweight human interest stories" in its current affairs, unoriginal programmes, a lack of serious documentaries, and the flagship programme 'Tonight' must "expand its ambition with a stronger emphasis on investigative political and international stories".
With content regulation already failing we view with concern the idea being promoted that the Human Rights Act 1999, incorporating into British law the European Convention on Human Rights, will make regulation more difficult because of the provisions in Article 10 on "freedom of expression". The ITC has argued publicly that the rules on TV advertising should be relaxed, because of this Act, to remove a number of prohibitions that currently apply to certain goods and services. Advertisers should not have their "freedom of expression" constrained.
We note that the Broadcasting Standards Commission, in its response to the EU Regulatory Review, has stated that the Human Rights Act introduces new considerations:
"We now emphasise that freedom of expression and freedom of information are rights which should only be circumscribed for good and sufficient reason. This would normally be where greater harm could result, such as a genuine risk to the security of the state, invasion of the legitimate privacy of the individual, or damage to children. Any new approach to regulation must therefore reflect the balance to be struck between freedom, which is a right, and responsibility, which is its consequence."
The BSC offered no clues as to what "good and sufficient reason" might be.
The European Convention does guarantee the right to freedom of expression but it should be noted that this guarantee is not absolute. Article 10 states:
"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".
Already, even before the Human Rights Act becomes law, it has become apparent that the lack of definition is providing new opportunities to those ready to exploit the situation by demanding "freedom of expression" as though it is an unimpeachable absolute.
uch more should be done by the broadcasting authorities to elicit comment about programmes from the public. In any new scheme of content regulation the Government should include provisions requiring the broadcasters to do far more to canvas public opinion about programme content. This should be a continuous process, for which additional resources should be made available, and not limited to seasonal programmes like 'Feedback' on BBC Radio 4 and 'Points of View' on BBC1 television.
We gladly acknowledge that the BBC has done most to involve the public in programme policy decisions by arranging public meetings in different parts of the country. The various symposiums arranged by the Governors to discuss programme matters are also an important way of keeping them acquainted with broader opinion. Unfortunately, these events have tended to be dominated by representatives from the media industry anxious to safeguard their interests rather than by members of the public or ordinary licence fee payers. It is difficult for the outsider to discern what effect on programming these carefully managed public relations events actually achieve. For too long there has been an over reliance on the opinions of invited focus groups which tend not to reflect the broadest public opinion.
This Association believes that the single most important innovation in viewer and listener relations has been the introduction of the national rate 24 hour telephone service, based in Belfast, for receiving comments from the public. Much more should be done on air to promote this public service. We recommend that a series of programmes be made to introduce this facility to licence fee payers and that its work be regularly featured in consumer programmes.
We acknowledge that the Independent Television Commission produces and publishes an annual 'Factfile' which is a comprehensive guide to commercial television srevices in the UK. Much more should be done to advertise this handy booklet and this Association suggests that ITV should introduce a national telephone service, similar to that operated by the BBC, for comments from the public to be made about independent television programming.
'Right To Reply' on Channel 4 TV is a fine example of what is needed on the other channels although it is not enough for such programmes simply to be aired. Programme policy changes should be promised and verifiable as a result of the legitimate concerns raised by viewers.
This Association believes that the broadcasting authorities give insufficient weight to unsolicited complaints or comments about programmes. Generally, these letters are a result of genuine offence being caused by programmes that are transmitted directly into the nation's living rooms. The response received by most people who make the effort and take trouble to write gives no encouragement and the writer is almost always made to feel foolish and a nuisance.
The BBC has its own Programme Correspondence Section with a head who is responsible to the Governors. There is, apparently, no equivalent section within independent television and this is another shortcoming that ought to be remedied.
This Association believes that the analysis of complaints and comments from the public should be carried on independently of the broadcasting authorities who have always acted as judge and jury in their own court.
It is a matter of some regret that the Broadcasting Standards Commission, since it was established in 1988, has presided over a worsening situation and has failed to bring about the sustained improvement in standards that many hoped would result from it activities. We believe that the Commission has itself contributed to the general decline in standards by its willingness to accept many of the excuses and justifications for the excesses in programmes. Sadly this does nothing to inspire public confidence in the Commission and the letter which follows, sent to this Association by a Mrs Platt in March 1995, is a typical comment:
"I personally wrote to complain over the film 'Basic Instinct' which I found to be pornographic. After 5 preliminary letters I, eventually, after many months, received a very unsatisfactory letter quoting channel 3's excuses, but entirely agreeing with them.
"In my opinion, and after hearing of the same treatment meted out to my son in law concerning an explicit homosexual programme on Channel 4, I have come to the conclusion it is a waste of time complaining to this council!!"
In September 1999 Lord Holme of Cheltenham took up the appointment of Chairman of the BSC. In a letter published in 'Broadcast', 15/10/99, we said:
"The priority for Lord Holme is surely to establish public confidence in its functioning ... He "could improve the Commission's standing if a definitive code of guidance could be devised that would give greater consistency and less equivocation to their findings. Moreover, we believe that whole process of making findings could be speeded up so complaints take weeks rather than months to process. Finally, broadcasters should be required, at the least, not to repeat shows about which complaints have been upheld".
There should be more programmes about television presented in an informative and entertaining way. Over the years there have been very few programmes or news features about the huge changes in communications technology which will eventually affect every household in Britain. One notable exception to this was a programme produced by Goldwyn Associates transmitted at 11.20pm by BBC2 called 'The Business: Tomorrow's Television' in May 1996. This described how "the big computer manufacturers, the very big telephone companies, the big media moguls are all moving in and are investing fortunes to find a goldmine when TV goes digital".
This Association recommends that a statutory statement on taste and decency should be included in any new media legislation. The statement should be supported by unambiguous definitions of terms, capable of being enforced, if necessary, in the courts and which are not subject to whimsical change. This could be achieved by means of a supplementary schedule which would clearly establish the limits of acceptable programme content. A well defined Programme Code, which should apply to every channel, would complement the schedule and provide detailed guidelines for programme makers and, above all, the viewing public.
It is confusing and unhelpful to have three different Codes: The Broadcasting Standards Commission's Code of Guidance; ITC's Programme Code; BBC Producers Guidelines. The fact that these have different perspectives and use differing and ambiguous terminology also causes public confusion. This Association can see no good reason why there should not be one comprehensive Programme Code that applies to all television services.
To accompany such a legal framework this Association recommends that the present regime of sanctions available to the Independent Television Commission be extended to include breaches of taste and decency requirements. The ITC has powers to fine and to withdraw licences from ITV companies but these powers are rarely exercised. In the last six years sanctions have been imposed for product placement, faking in documentaries and inappropriate scheduling. The ITC has rarely confronted taste and decency issues directly. Only when recommending that Proscription Orders be issued by the Culture Secretary against a foreign satellite TV channels, for example 'Adult X', which transmit unacceptable pornographic programming does the ITC refer to taste and decency rules being breached.
Apart from adverse comments in the ITC's Annual Performance Reviews we know of no sanctions, apart from warnings, that have ever been imposed on any UK independent TV channel simply on the grounds that they have breached acceptable standards of good taste and decency. 'Babylon Blue' was fined £10,000 in November 1999 for "inadequate editing" of the film 'The Black Tie Affair'.
RELIEF THROUGH THE COURTS
t present there is no mechanism through which an aggrieved viewer or listener can gain relief through the judicial system for perceived breaches of taste and decency regulations. The Broadcasting Act is civil law and no criminal prosecution is possible and the BBC is established by Royal Charter. The only legal procedure available to a member of the public is the lengthy and costly Judicial Review process. However, this process can only determine, after transmission, whether or not all the correct procedures were followed before a programme is screened.
Prosecution under the Obscene Publications Act 1959 is theoretically possible but in practice a prosecution may only be mounted with the consent of the Director of Public Prosecutions. This Association referred 'Fetishes', a 90-minute film screened by Channel 4 TV in September 1998, depicting unspeakable sado-masochistic practices, to the DPP but we were told that "there is not a realistic prospect of conviction for an offence contrary to Section 2(i) Obscene Publications Act 1959".
If Channel 4 TV cannot be prosecuted for showing explicit sado-masochistic practices and the ITC can justify such material as being a "serious documentary" there can be no prospect of lesser material being treated more harshly.
This Association recognises that real difficulties have arisen from the new multi-channel television environment. There are now so many channels that it is impractical to monitor the entire output of all of them. Clearly new problems require new solutions.
This Association recommends that every licensed TV and Radio channel should have its own Compliance Officer who should be accountable to the competent regulatory authority. With new definitive statutory requirements on programme content and a well defined uniform programme code it should be far easier to identify breaches in the regulations. Such breaches should not be entirely dependent upon investigations following negative public reaction. The idea, emanating from some in the industry, that disciplinary action should only be considered if a specified proportion of the audience complains should be rejected.
ENDING THE CONFUSION
his Association agrees with the Secretary of State that the present system of content regulation is confusing and should be significantly streamlined in the public interest. Viewers and listeners find it confusing that there are so many points of contact within the broadcasting industry.
We recommend that a single point of contact for viewers and listeners of all Television and Radio programming, on whatever channel, would overcome the public uncertainty and confusion that presently prevails. The address, telephone number and e-mail address of this "one stop shop" should be regularly transmitted and published in all programme magazines as well as on the electronic programme information schemes. It should also be published either on the TV Licence or on a public information leaflet which accompanies the TV Licence renewal form.
A SINGLE AUTHORITY?
his Association believes that there is force to the argument, advanced by the Independent Television Commission until recently, that economic and content regulation cannot be separated. Clearly the authority which grants licences to operate must have powers to ensure that programmes comply with the statutory content requirements and the conditions of the licence.
However, it is plainly not in the public interest to have a content regulator which simply complies with the demands of the programme and film makers and with the demands made by the advertisers. Contrary to popular belief the ITC does not preview programmes to ensure compliance. In practice the ITC is a 'post hoc' regulator which investigates programmes if complaints are received. Powers and duties to preview were taken out of the Broadcasting Act 1990 and as a result it is far from clear how the statutory requirements on taste and decency are secured other than by admonition after offensive programmes have been screened.
Whilst we recognise that a single content regulator would concentrate a lot of power in only a few hands such a regulator would have the benefit of a well defined code of practice and well defined statutory requirements. It is in the statutory requirements that the 'power' should reside rather than in the members of such a regulatory authority. This is the only sure way to safeguard standards.
A PROGRAMME COMPLIANCE CENTRE
he single point of contact, A Programme Compliance Centre, could have a number of functions that would give empowerment to the viewer and listener. A high public profile would be essential if it is to work in the interests of consumers.
Aggrieved viewers and listeners could telephone, e-mail or write to the PCC. Such communications would be analysed and passed to the appropriate TV company for a response. The PPC would publish monthly reports of complaints received and the broadcasters response to them. The PCC's reports could be scrutinised by the Culture Media and Sport Select Committee and the chairmen of the broadcasting authorities and companies regularly called to account in Parliament.
(We acknowledge that the Broadcasting Standards Commission currently performs such a function but additionally it adjudicates autonomously on complaints it receives. In this capacity it offers advice to the broadcasters who need not comply.)
Economic regulation, the issuing of franchises and licences and so on, could be carried on by an Electronic Media Authority which could include regulation of the Internet as part of its function. Such an authority could ensure that the terms and conditions of television, radio and Internet licences are met. We recognise that the Internet is a worldwide phenomenon which presents particular difficulties so far as enforceable regulation is concerned. This Association flatly rejects the idea such difficulties are insurmountable. Internet Service Providers should, in the first place, be required by law to regulate the services they host but appeal should be available to a higher authority.
We recognise that there are now many specialist channels catering for niche audiences and minority interests. This should not preclude a broad variety of programming being provided across many channels. An Electronic Media Authority should have powers to ensure that a broad mix of programming is available to the increasing number of people who wish to subscribe to such services.
At the present time the BBC, a Public Service Broadcaster, continues to provide a broad range of programming on television and radio because it is funded by a universal licence fee and is available to every household in Britain. In the increasingly competitive world of multi-channel television it is difficult to see, in the longer term, how the licence fee can be fully justified bearing in mind that more and more people are opting to subscribe to other services. Increasingly, people pay for the services they use and are unwilling to pay for those they do not.
IMPROVING CONTENT REGULATION
This Association notes that the British Board of Film Classification has recently devised a new Code setting out content categories of what the Board believes is acceptable content for each age classification of films and videos. Whilst this Association does not agree with the latitude permitted to film and video producers the principle is established that a workable schedule can be devised.
This Association recommends that a regulatory authority should have as part of its statutory remit, the task of distinguishing what is acceptable for television, and other electronic media, and what is not.
The Broadcasting Standards Commission has already completed substantial research on language which identified words, phrases and expressions which cause public offence. On the assumption that any new scheme of content regulation will include the requirement not to offend public feeling we propose that the supplementary schedule should set out the words, phrases and expressions to be excluded from programming.
The Schedule should exclude the depiction/display and active engagement of private bodily parts and excretal functions.
The Schedule should exclude the fictional depiction/display of torture, restraint, infliction of pain, deliberate killing (especially that using weapons and other instruments easily accessible eg. hammers, scissors, knives, screwdrivers baseball bats and so on).
his Association suggests that a new offence of "bringing broadcasting into disrepute" with attendant disciplinary measures should be introduced for channels which breach the statutory requirements, or the schedule or the new definitive programme code.
If the Broadcasting Standards Commission is to remain as a separate entity as a forum for public complaints we believe that any programme which has had public complaints upheld against it should not be repeated on the same or any other channel.
ontent Regulation in Britain has been part of the broadcaster's remit since 1954 when Parliament included such provisions in the Television Act. Accordingly, the public tend to trust that high programme standards will be safeguarded and that their best interests will be served by those vested by Parliament with responsibilities in this respect. The difficulties arising from the new technologies should, therefore, not be regarded as insurmountable but a challenge to devise new solutions and strategies in the public interest.
This Association believes that the authorities are failing to regulate broadcasting and that the public interest is not best served by the present system. The measures set out in this paper could greatly empower the consumer to stop the progressive slide in standards. Better programming, that does not rely on the worst excesses of human behaviour, would benefit society as a whole. It is not uncommon for films and other programmes commissioned for television to include graphic portrayals of brutal violence, sexual conduct and, routinely, to transmit offensively obscene and profane language. We cannot, as a society, at the same time glorify and defend works of entertainment which set the worst possible example and then condemn those who simply reflect behaviour that is popularised and normalised on television and in film and video. So long as nothing is done to improve the general moral and ethical tone of our entertainment serious behavioural problems will persist.
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