A fair deal for stakeholders

Briefing for the Communications Bill

FOREWORD

'A Fair Deal for Stakeholders' is intended to be a contribution to the public consultation on the Communications Bill due to be published early in 2002. We hope it will assist the political process and encourage public discussion as the Bill progresses through Parliament.

The Summary provides a plan that we believe will strengthen the position of viewers and listeners by enabling genuine involvement in determining programme content policy.

SUMMARY

· Broadcasters to present the public with far-sighted plans that demonstrate a real passion for excellence.

· A new definitive Code of Practice that will apply to all licensed TV and Radio services.

· A system of content regulation based on clearly defined principles ensuring that standards of taste and decency in programmes will progressively improve.

· Powers to impose sanctions and a new offence of bringing broadcasting into disrepute.

· An independent consumers panel, (or one-stop-shop) with a high profile and strong links to the viewing and listening public.

· Regular promotional TV and Radio programmes about the work of OFCOM, the Content Board and the Consumers Panel.

· Publication of regular reports on monitored programme content, TV and Radio channel performance reviews and analysis of complaints.

· The distribution to every household of a 'Factfile' or 'Directory' giving contact information of all TV and Radio services and inviting comment about programmes.

· The appointment of a 'Compliance Officer' for every licensed TV and Radio service to secure that programmes comply with the Code of Practice.

· Retention of existing powers to recommend Proscription Orders against unacceptable foreign satellite channels.

INTRODUCTION

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n 12 October 2001 the Department of Culture Media and Sport and the Department for Trade and Industry jointly published a 'Digital Action Plan'. The DCMS also announced that Sir Robin Biggam had been re-appointed as Chairman of the Independent Television Commission and Towers Perrin, the Management Consultant, published a 'Scoping Project' setting out a detailed scheme for the future of Communications Regulation.

On 15 October the Communications 'paving' Bill received a Second Reading in the House of Lords and it passed through Committee Stage on 29 October and 6 November. It was given a Third Reading on the 13 December.

mediawatch-uk recognises that the development of digital technology and its rapid application into the communications media presents new problems of regulation which must have a legal framework and a regulatory structure that will have at its core the interests of the viewing and listening stakeholder.

We acknowledge that the switch to digital requires careful planning and, above all, a comprehensive information campaign that will dispel public confusion. It is essential that cost implications are set out clearly with trustworthy descriptions of the options available.

We note that the Government, in its Consultation 'Regulating Communications: approaching convergence in the Information Age', stated: (5.5(a))

"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".

and in (5.5(c))

"The whole process requires transparency. All parties with an interest must have an opportunity to participate effectively in the decision making process. Regulators' procedures should be set out clearly, the key decisions must be explained and their rationale properly understood".

OBJECTIVES AND PRINCIPLES

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he objective of any system of content regulation should surely be to set standards and to provide a proper and effective mechanism by which they are maintained or improved in line with public expectations. The system should provide adequate safeguards and appropriate sanctions against those who breach the standards. mediawatch-uk welcomes that this need is acknowledged by Towers Perrin in their 'Scoping Project' Report.

As with any system of regulation it must be based on principles that are clearly defined and it should be obvious to the practitioner and to the viewing and listening stakeholder what these principles are. The priority task for OFCOM, therefore, is to establish principles.

The White Paper intends that OFCOM is to be given adequate powers to establish rules and to impose sanctions. However, there is no indication of what these rules might be or the circumstances in which sanctions might be imposed. Further clarification on these points is therefore necessary.

Whilst we accept that there are merits in the current system there is no description in the White Paper of what the "more coherent system of objectives and principles" might be. Towers Perrin did not adequately develop this theme.

The requirement to balance "freedom of speech against the need to protect against potentially harmful material" needs to be better explained especially with regard to how the right balance is to be achieved taking into account the stakeholders' interest. This is especially important because the White Paper observes that "audience expectations differ". Expectations are said to be related to "sophisticated assumptions derived from programme description, time of day and week and context". Towers Perrin recognised this dilemma but failed to suggest directly how the balance is to be achieved.

Experience gained by mediawatch-uk, and its predecessor, shows that this line of reasoning can be, and is, used to justify anything no matter how offensive, extreme or objectionable it may be. Moreover, we believe that it conflicts with the Government's evident desire "to combine a lighter touch in many aspects with tough protection of the genuine public interest in others".

MEDIA LITERACY

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t the same time the White Paper says that OFCOM will have the task of introducing a three tier system of regulation but it will have to help people make informed choices about what they and their children see and hear. Towers Perrin offered no real advice on this question although media literacy is listed among other factors in Chart E.

From this it is certainly not clear how OFCOM will achieve the maintenance of high quality content, a wide range of programming and a plurality of public expression whilst at the same time protecting the interests of citizens. By promoting media literacy as a way of requiring people to take on greater responsibility for their own and their children's viewing and Internet use, OFCOM could place the onus for content regulation on the viewing and listening stakeholder rather than on the programme providers. And the provision of "clear, consistent and user friendly information" reinforces the trend in focusing away from the provider.

mediawatch-uk believes that in the present 24-hour global broadcasting environment the 'watershed' is outmoded as an effective means of protecting young people from unsuitable material. The widespread use of video recorders enabling easy time shifting of programmes has rendered the 'watershed' meaningless, as has the availability of programming on the Internet.

The importance attached to rating systems in the White Paper is also misplaced because these are also at variance with the desire to introduce "tough protection" against "potentially offensive or harmful material". Rating schemes safeguard the broadcasters from justifiable criticism of the excesses they transmit. Relying on "accepted community standards", which are plainly subject to considerable variation, may inevitably lead to a rapid degeneration of standards as OFCOM could adopt the 'lowest common denominator' as its guide. This problem was not addressed by Towers Perrin.

PUBLIC CONFIDENCE

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ast experience demonstrates that it is futile to attempt to regulate content using schemes that are poorly defined, ambiguous and interpreted only by regulators.

Further evidence of failure in the present system is provided by the Briefing Update (No7) issued by the Broadcasting Standards Commission 29/1/2001. This shows that "half the respondents in a survey conducted in 1999 spontaneously said they had a concern about television output" and that "there was an increase in 1999 in the absolute numbers of incidents of depicted violence, swearing and offensive language, while the numbers of scenes of sexual activity were among the highest recorded".

In order to overcome public concern OFCOM, in its efforts to regulate content, must firstly establish public confidence. It should require that all broadcasters do nothing to undermine human dignity or civilised values, that they show respect for the audience and that they present the best possible information, education and entertainment. For their part broadcasters must present far-sighted plans demonstrating a real passion for excellence which will fulfil the above objectives.

The statutory requirement that programmes should not offend good taste or decency or offend public feeling should be maintained but be better defined. A new offence of bringing broadcasting into disrepute should be introduced.

OFCOM should be required to publish regular reports on monitored programme content, conduct regular research on public attitudes to content issues, conduct TV and Radio performance- reviews and publish annual accounts and analysis of comments received from the public. mediawatch-uk believes that these requirements will demonstrate a willingness to be accountable.

REGULATING CONTENT

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he essential problem, that we hope the Communications Bill will resolve once and for all, is that up to now there has been no definitive statement of what constitutes unacceptable programme material.

mediawatch-uk welcomes proposals by Towers Perrin that a Content Board should be established as part of OFCOM's overall structure. Programmes are the most important consideration for the viewing and listening stakeholder. It is important that the Content Board has strong links with the Consumers Panel envisaged in Chart E of the Towers Perrin 'Scoping Project'.

It is essential that the Board and the Panel have at their disposal a definitive Code of Practice/Programme Code/Producers Guidelines. Such a Code should have significant status in the overall scheme of content regulation. It should, above all, take into account public unease and dismay with the level and nature of violent and sexual imagery as well as the level of obscene and profane language that the existing Codes accommodate by their contrived ambiguity and poor definitions.

The task of regulating content will clearly require such a statement and we recommend, simply as a starting point, consideration of the BBFC Classification Guide published in September 2000. The Broadcasting Act and the BBC's Royal Charter require that programmes should "not offend good taste or decency". It is evident that films regarded by the Board as suitable for '18' classification rarely meet with the above requirements and accordingly should be automatically excluded from broadcast content unless it can be shown that they comply.

We note with concern that the White Paper makes no reference to objective standards but instead suggests that "community standards" will be a primary determining factor in future. Recent correspondence with the ITC shows that this test of acceptability is already being used in some adjudications rejecting public complaints about TV advertising rather than the provisions of its own Code. We would point out that this creates real difficulties because public consensus has become fragmented as a result of long term exposure to conflicting ideologies and lifestyles popularised in the media. The White Paper is not clear at all on how OFCOM will make judgements about content and the basis upon which it will adjudicate on complaints from the public. Towers Perrin made no attempt to grapple with this difficulty.

mediawatch-uk believes that the "tiered" approach to content regulation could easily undermine established standards and could add significantly to the present public confusion rather than dispel it.

A consequence of the multi-channel television environment is that audiences have fragmented and in the unedifying scramble for ratings and audience share standards of taste and decency have collapsed. So bad had the situation become that The Rt Hon Chris Smith MP, Culture Secretary, issued an unprecedented rebuke against Channel 5 TV in the House of Commons, 12/6/2000, and in July 2001 Government ministers expressed dismay following the screening, by Channel 4 TV, of the 'Brass Eye' programme on paedophilia.

We note that the White paper takes into account the provisions of the Human Rights Act 1998 and we would expect OFCOM to place due emphasis on the requirements to protect health and morals which ought to take priority over all other considerations. Towers Perrin made no specific comment on this matter.

AUTHENTIC PUBLIC OPINION

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FCOM must do far more to elicit comment from the general public about programmes. mediawatch-uk welcomes the formal establishment of the Consumers Panel but this must be broadly based if it is to reflect authentic public opinion. The present system of BBC and ITC local and regional advisory councils provides a useful model but these have tended to conduct business behind the scenes and few outside the broadcasting industry know anything about them. OFCOM must ensure that the Consumers Panel has a high public profile with a single postal address, e-mail address and telephone number regularly publicised on television and radio. We would also suggest that a 24-hour 'answerphone' service be established to enable public comment about programmes to be received.

We note with considerable interest remarks made by Lord Hussey of North Bradley in his memoirs, serialised in 'The Sunday Times' 28/10/2001, upon taking up his appointment as chairman of the BBC Governors:

"Another thing which became immediately apparent to me was the disdain with which letters of complaint were treated. The BBC management felt that they were not accountable to anyone. The attitude of arrogance was stupefying"

We welcome and endorse the recommendation made by Towers Perrin for a 'one-stop-shop' that would deal with complaints from viewing and listening stakeholders about offensive programmes.

Moreover, the work of OFCOM, the Content Board and the Consumers Panel should be the subject of regular promotional television programmes which could perhaps take the form of an amalgamation of 'Watchdog', 'Right to Reply', 'Points of View' and 'Feedback'. OFCOM must ensure that the broadcasters do far more to canvas public opinion on programme content. This should be a continuous process for which additional resources should be made available if necessary.

mediawatch-uk believes that the single most important innovation in viewer and listener relations has been the introduction by the BBC of the national rate, 24-hour telephone service for receiving comments about programmes from the public. OFCOM should establish a well-publicised equivalent service for the services over which it has jurisdiction. We suggest that a leaflet be enclosed with the TV licence renewal notice giving details of how the public can contact OFCOM and/or the Content Board and/or the Consumers Panel. Additionally, space should be taken in all programme magazines to promote this public service.

mediawatch-uk acknowledges that the ITC produces and publishes an annual 'Factfile' which is a comprehensive guide to commercial television services in the UK. OFCOM must produce a similar booklet and do much more to promote it than the ITC has ever done.

mediawatch-uk believes that the broadcasting authorities have given insufficient weight to unsolicited complaints or comments from the public about programmes. Generally, these are a result of genuine offence being caused by programme content. The response received is almost always a discouragement and the writer is made to feel foolish and a nuisance. Indeed a recent article in a national Sunday newspaper referred to such people as "busybodies". OFCOM must address this serious deficiency in public relations, which would not be tolerated in any other industry.

mediawatch-uk believes that the Consumers Panel should be expected to conduct an analysis of complaints and that BBC programmes should be included in this process. OFCOM must be required by Parliament to devise a definitive Programme Code that would enable greater consistency and less equivocation in its "code adjudications". The process of making findings should be speeded up taking weeks rather than months. The findings should be published each month and where complaints are upheld this ought to disqualify programmes from any future repeat screening.

OFCOM'S performance should be regularly reviewed by the Secretary of State and/or through the Select Committee system in Parliament.

A SINGLE CODE

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ediawatch-uk can see no good reason why there should not be a single comprehensive Programme Code that applies to all television services. This would serve the public interest. We welcome the Secretary of State's statement, 'Broadcast' 3 August 2001, that a common code of practice is being contemplated. To accompany such a framework there should be a regime of sanctions leading ultimately to a withdrawal of the Licence. Sanctions should be extended to include breaches of good taste and decency and/or offences against community standards. We welcome Towers Perrin's recognition that sanctions will be needed.

At present there is no mechanism through which an aggrieved viewer can gain relief for perceived breaches of taste and decency regulations through the judicial system. Whilst it is true that the Obscene Publications Act 1959 can be invoked no prosecution is possible without the consent of the Director of Public Prosecutions. That this fact is not mentioned in Annex A of the White Paper: 'Negative content regulation', is rather curious. We note that Towers Perrin did not focus on this matter either.

COMPLIANCE OFFICERS

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ediawatch-uk recognises that real regulatory difficulties have arisen from the rapid growth of television channels. It has become impractical to monitor the entire output of all of them. One way of overcoming this problem is that OFCOM should require that every licensed TV and Radio Station has its own resident Compliance Officer who should be accountable to OFCOM through the Content Board and the Consumers Panel. With new definitive statutory requirements on programme content accompanied by a well-defined common Programme Code it should be far easier for breaches in the regulations to be identified and appropriate sanctions imposed. Such breaches should not be entirely dependent upon investigations following negative public reaction to a programme. OFCOM should also have the power to preview programmes if necessary. In correspondence with mediawatch-uk the Secretary of State has said that the White Paper contains no proposals to return to a system of pre-vetting.

It is plainly not in the public interest to have a content regulator that simply complies with the demands of film and programme makers and/or with demands made by advertisers. OFCOM must ensure that the balance of power is shifted towards the viewing and listening stakeholder.

mediawatch-uk notes that new classification guidelines were published by the British Board of Film Classification in September 2000. Whilst we certainly do not agree with the latitude permitted to film and video producers the principle - regarded for so long as impractical - of a workable schedule of content being devised is now established.

OFCOM must have, as part of its statutory remit, the task of distinguishing what is acceptable for the electronic media and what is not.

PROSCRIPTION ORDERS

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e note with considerable interest the inclusion in 'Annex A' of the White Paper details of provisions enabling the Secretary of State to issue Proscription Orders against foreign satellite services given that the ITC or the Radio Authority makes such a recommendation. Towers Perrin did not specifically refer to these powers.

It is a matter of great concern that the ITC recommended in September 2000 that a Proscription Order be issued against the 'Satisfaction Channel'. By December 2001 this Proscription Order had still not been issued by the Secretary of State. This delay completely undermines the efficacy and validity of this part of the Broadcasting Act.

CONCLUSIONS

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iven that the five existing regulators commissioned Towers Perrin it is perhaps predictable that the interests of the viewing and listening stakeholders are not given the highest priority throughout the 'Scoping Project'. Clearly a different report would have resulted had their brief taken into account the thinking and experience of numerous groups representing viewers and listeners.

Many questions relating to content regulation and stakeholder involvement were not addressed and answers must be found.

mediawatch-uk readily acknowledges that Towers Perrin has produced a detailed and practical plan for the evolution to a new regulatory regime. There is clearly a need for clarification and further development with regard to the regulation of programme content. So far as stakeholders are concerned mediawatch-uk believes that this is their primary concern and we expect the comprehensive Communications Bill to deal fully with this matter.

January 2002

The Second Reading debate on the Communications Bill 3 December 2002 can be seen at: www.parliament.uk (click on Lords then Debates and select date).

Click here for mediawatch-uk parliamentary briefing on Clause 307 of the Communications Bill

Click here for 'Regulation - The Key Issue'

Click here for 'Empowering the Viewer'

For news and information visit; www.ofcom.org.uk