EMPOWERING THE VIEWER
INTRODUCTION
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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
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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."
BROADCASTER'S JUDGEMENT
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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.
He said:
"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
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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.
INCISIVE ANALYSIS
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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."
SHAPING TASTE
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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
harm or
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
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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.
RECOMMENDATIONS
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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".
REGULATING PROGRAMMES
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
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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.
MULTI-CHANNEL TELEVISION
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
T |
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?
T |
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
T |
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.
Language
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.
Sexual Conduct
The Schedule should exclude the depiction/display and active engagement
of private bodily parts and excretal functions.
Violent Conduct
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).
NEW SANCTIONS
T |
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.
CONCLUSION
C |
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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