Actively campaigning for accountability and public participation in broadcasting
Regulation the key issue
the department of Culture, Media & Sport and the Department of Trade and Industry
on their consultation document regulating communications: ‘Approaching
convergence in the information age’.
Published: October 1998
mediawatch-uk agrees entirely with the statement in
Chapter 5.5(a) of 'REGULATING COMMUNICATIONS' 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".
This Association believes that content regulation will remain of critical importance as broadcasting moves into the Digital Age. Ways must be found to improve and maintain standards of programme content rather than simply surrender them to the vagaries of market forces.
The all embracing approach to content regulation established by Parliament in the Broadcasting Act and the BBC's Royal Charter should be made to prevail in the Digital Age even though audiences will be fragmented by the multiplicity of channels available and that consumers choose to use. Parliament must ensure, through legislation, that effective means of regulation for high quality wholesome entertainment are readily available and that the voice of the consumer is given due weight in the new broadcasting environment. A new framework of guidelines setting objective standards of good taste and decency must be devised for the common good.
We believe that content regulation must be coherent and we consider that a single regulatory authority, or "one-stop-shop", would have advantages in this regard. It is plainly not in the public interest to have different regulatory authorities reaching different conclusions and findings on complaints about programme content that offends public feeling. As we shall show below, the present regulatory regime does not serve the public very well at all.
If the Government is persuaded to replace the existing system with a more efficient single regulatory authority, it is essential that it be given a significant status and a high public profile. A prerequisite would be a well-defined Code of Practice with attendant sanctions. The code should not be filled with ambiguous phrases or meaningless platitudes or escape clauses capable of meaning anything or nothing. Executive powers would be necessary rather than mere advisory status. The disadvantages of the existing separate organisations arise principally from their limited powers, their low public profiles and a low appreciation by the public of their roles and functions.
Regulating Communications makes a number of notable and fundamental observations: that it represents the "next stage" in consultation; that the potential benefits to the citizen/consumer, to business and to government are significant; that excessive and inconsistent regulation is a "risk". Particular importance is attached to "serving the consumer interest" and it is said that the challenge to regulation presented by convergence will, if necessary, be supported by amendments to legislation "on a case by case basis in advance of possible wider change" but this will progress in an evolutionary way "to regulation 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 States capacity to intervene"...(117). The capacity for comprehensive negative regulation will slip away, but the desirability of positive regulation will remain (117). The Culture Select Committee observed that most people are concerned about the programmes that arrive in their living rooms rather than the means of transmission. Their report also stated 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" (110)
Regulating Communications assumes that content
regulation, which has always been a feature of British broadcasting, will
continue. There are two types of regulation described: "positive
regulation" and "negative regulation". 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)
Reference to content regulation as "negative" puts the practice at a
clear disadvantage and many, including this Association, would regard the
exclusion of such material as very "positive" regulation!
Regulating Communications states that the challenge to the Government "will be to ensure that the regulatory frameworks for telecommunications and broadcasting keep pace with the Information Age" although views will be sought "on how regulations should develop over the next few years". (1.4, 1.5)
This Association welcomes the importance attached to the regulation of broadcast content. We agree with the observation that broadcasting ... "is a powerful means of communication with a potential to influence which goes beyond that of any other medium." (2.12)
We agree that there is public concern about the content of broadcast services and that there is public support for content regulation. (2.12) We agree with the Government that "these factors" demand the formulation of "policies to ensure that broadcasting makes a positive contribution to its cultural, social and educational goals." (2.13) Regulating Communications continues: "These objectives are secured at present by the ITC and Radio Authority licence obligations and codes of practice". (2.15) "We will continue to ensure that consumers are able to choose between programmes of high quality which represent the full spectrum of opinion and interests. The Government aims to secure: plurality of voice; impartiality; diversity of content; high quality of content; controls over offensive material". (2.16)
We identify with those who feel that the present system is not working adequately and we disagree with the Secretary of State, the Rt Hon Chris Smith MP, who said at the AGM of the British Video Association in November 1997 that content regulation is something the government will be seeking opinions on, adding that it should be carried out with "the lightest possible touch". This attitude is further enhanced by the broadcasters' own codes and guidelines which are contrived to be ambiguous and therefore lack meaning and force in their application. Complaints from the public about offensive content are easily dismissed because there is nothing firm against which they can be assessed. Regulating Communications asks what else can be done to make current structures work better and which will be the key regulatory issues in the digital future.
This Association would argue that content regulation is the key regulatory issue in the digital future. It is not being "secured" quite so well as the DCMS and the DTI suppose. This Association has consistently maintained that the present edifice of regulation is not working adequately, principally because there is an overall lack of definition in the statutory requirements on good taste and decency in the Broadcasting Act 1990 (Clause 6(1) (a)) and in the BBC's Royal Charter (Clause 5(1)(d)) and an overall lack of will to interpret and apply them for the common good.
It is our belief that the present regulatory system, so far as programme content is concerned, is run by an autocratic elite which has its power inflated further by Government policy of non-intervention in these matters. As such the system works against the public interest and the common good.
In this response to Regulating Communications, we present examples of correspondence with the Broadcasting Authorities as evidence that they are largely impervious to criticism of any kind about programme content.
Interpreting Clause 5 (I)(d) in the Royal Charter was raised in a letter to the BBC and in reply an official explained how the Corporation understands its obligation on good taste and decency:
"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".
This entirely subjective interpretation, capable of meaning whatever anyone wants it to mean, is surely not what Parliament intended. The BBC is established by Royal Charter and has a Board of Governors appointed by Parliament. The role of the BBC Governors is described in some detail in a guide, published in December 1997, entitled 'Governing Today's BBC'. The section Listening to the Audience describes the BBC's commitment to accountability as being at the centre of its relationship with its audience. "This is a two way process. If the Governors are to act genuinely in the public interest, they must be alert to the views and concerns of audiences... There is a variety of means by which this is achieved, some of which are well-established while others are more recent developments. They involve: public consultation; independent advice; audience research; a strategy for listening; and complaints about programmes."
This Association wrote to each of the BBC Governors about the scheduled screening of the film 'Pulp Fiction' on BBC2 in November 1997. Having viewed the film before transmission (it is available on video), we said "the film includes a constant stream of gratuitous obscene and profane language as well as a number of brutal and merciless shootings, scenes of bondage and graphic use of illegal drugs". We asked that the Governors personally view the film in advance of its transmission to satisfy themselves that the film did not offend good taste and decency. Christopher Graham, the BBC's Secretary, said in reply that 'Pulp Fiction' has been "recognised as a classic of its kind by a leading contemporary film-maker and its nature and genre are well known.... In keeping with our policy, the film will be preceded by warnings about the content so that viewers are fully aware of what to expect.... While I understand your concern, the BBC takes the view that violence and strong language are part of contemporary society and adult drama must be free to explore important issues truthfully".
Sir Christopher Bland, in a reply to a Member of Parliament on
John Beyer, Director of National VALA, put the following question to Sir Christopher in a BBC On-Line "Chat with the Chairman" on 20 July 1998:
(1) "Could Sir Christopher Bland please explain how the Governors of the BBC, acting in the public interest, secure that programmes do not offend good taste or decency and do not offend public feeling according to the requirements set out in the Royal Charter?
(2) And could he explain how dramas like
'Close Relations', with explicit sex scenes, comply with these
Sir Christopher replied: "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". Curiously, the second part of our question relating to the drama Close Relations was not put to Sir Christopher or he decided the question was too difficult to answer. In fact, this Association had already taken up with the BBC the portrayal of explicit sexual conduct in the Close Relations series transmitted in May and June 1998. Numerous complaints were sent to the BBC, including one from this Association sent directly to Sir Christopher. We suggested that the drama had caused considerable offence to the public and that the BBC had made a serious error of judgement by commissioning and approving this serial.
The Head of Programme Complaints, Fraser Steel, replied: "The sexual element was crucial to most of the involvements depicted, and the scenes of sexual activity marked significant stages in their advance or decline .... It seems to me that every effort was made, through billings in Radio Times and on-air warnings, to ensure that viewers were kept informed of the series' style and content .... I do not believe it was wrong to broadcast it and do not feel able to uphold your complaint".
Mr Steel revealed that only two of the episodes attracted more than 15 complaints to the BBC. After further questioning Mr Steel disclosed that the series, over its five episodes, attracted a total of 114 calls of complaint about its content.
Following transmission of Ladies Night on BBC1 screened on 22 April 1998, this Association wrote to Sir Christopher expressing concern about the inclusion of numerous scenes of men stripping and humiliating the women in their audiences:
"It was sleazy in the extreme and hardly what one would expect from the BBC with its long standing reputation for quality broadcasting."
"I suggest that this programme fell a long way short of "good taste and decency" and was, therefore, incompatible with the BBC's statement of promises and Charter commitments."
Fraser Steel replied:
"I am sorry you felt this programme contained "sleazy" material unsuitable for broadcast. The programme-makers were aware that it contained scenes which some viewers would not wish to watch, and it was prefaced by a warning about strong language and nudity. However, there is a distinction between programmes which offend against good taste and decency and programmes which, for good documentary or dramatic reasons, depict behaviour which might be regarded as tasteless or indecent.
This programme is a case in point, I think. The purpose was to look at the reality behind 'The Full Monty' feature film, which showed what was perhaps a rather rosy view of the world of male stripping. As the 'Radio Times' billing for the programme stated, "the resulting film says as much about the sexuality of nineties women as it does about stripping". The producer set out to explore the reality of life in an established male strip group, from the viewpoints of both the performers and the audience, and to look at why this form of entertainment had become so popular. The recent popularity of male stripping as a form of entertainment is, I think, a phenomenon worth exploring, and I believe the programme (which was, as you say, carefully edited) explored it with an appropriate combination of realism and respect for viewers' sensibilities.
So while I regret the offence you and some of your members were caused, I do not feel I have grounds for upholding your complaint. Nevertheless, I am grateful to you for writing. Feedback from viewers is becoming increasingly important as the BBC strives to cater for a changing audience with diverse views and tastes. There is continuing debate over where the boundaries of acceptability lie and your letter will help inform that debate. I have drawn the points you raise to the attention of senior management."
In November 1996 the BBC issued a new edition of its Producers' Guidelines. Newspaper headlines suggested that BBC bosses had ordered swearing to be cut out of programmes. Sir Christopher described the guidelines as "the most comprehensive code of ethics in broadcasting" and John Birt said "they provide detailed guidance which programme makers at all levels need to be aware of if we are to meet the expectations of our audiences."
Following the transmission of Billy Connolly's World Tour of Australia in October 1997, the BBC received 58 complaints about the swearing in the series. These complaints were dismissed by the Corporation and John Birt, the Director General, was reported as saying, "These complaints must be set against the fact that a large audience thoroughly enjoyed a series which gave scope to one of
THE INDEPENDENT TELEVISION COMMISSION
The Independent Television Commission has statutory duties under the Broadcasting Act 1990 to do all that it can to secure that programmes "do not offend good taste or decency or incite to crime or lead to disorder or to offend public feeling" - Clause 6(1)(a). The Commission is also required to draw up and, from time to time, review a Programme Code. It has jurisdiction over all independent broadcasting, including cable and satellite services which, according to the terms of their licences, must observe the Programme Code.
The mechanism by which the Programme Code is observed and enforced has always been difficult for the outside observer to perceive. Up until the Broadcasting Act 1990 came into effect, the Independent Broadcasting Authority, following earlier legislation, had powers to preview controversial programmes. This was a duty rarely exercised but one which was plainly necessary if the public interest was to be served. The 1990 Act removed that duty, making content regulation dependent upon public reaction following transmission.
From experience gained by this Association, it is apparent that the ITC seldom, if ever, admits to any error of judgement and that programmes transmitted are almost always justified whatever the content. On rare occasions the Independent Television companies are censured by the ITC but the problems are usually ascribed to inappropriate scheduling rather than with the content itself. An exception, however, occurred in October 1993. Channel 4 was censured for screening an episode of '
In July 1994 the ITC issued warnings to MTV and the Adult Channel after several breaches of the Programme Code. MTV had shown, at a time when young children were likely to be watching, a pop video in which a doll's head was mutilated. The Adult Channel was censured for screening generally available material too soon after . ITV's drama series 'The Knock' was criticised for showing a scene involving a suggestion of rape and strangulation which was "too strong" for a programme beginning at . In 'Emmerdale' the significant change towards a tougher more violent style was criticised by the ITC although no specific part of the Programme Code was reported to have been breached. 'Blind Date' was criticised in April 1995 about the "increasingly obvious sexual innuendo" although, again, no breaches of the Programme Code were mentioned.
Complaints about television advertisements generally seem to be considered more seriously than complaints about programmes. The ITC has a separate Code of Advertising Standards and Practice which, on the whole, works well. However, recent decisions by the secretive Broadcasting Advertising Clearance Centre to permit advertisements that include nudity, which would seem not to comply with clause 13 of the Code, have offended public feeling. In October 1994 the ITC issued new rules aimed at contributing to the progress towards national dietary improvement. Advertisements that encourage excessive consumption of sweets and snacks would be disallowed from February 1995. In December 1994 the ITC took the unprecedented step of fining Granada Television £500,000 for promoting products in the live show 'This Morning'. The show was said to have breached the Programme Code seven times in two years by giving "undue prominence" to commercial goods and services. In March 1995 GMTV was criticised for similar reasons.
In recent years the ITC has granted licences to a number of "soft porn" cable and satellite channels. In January 1995 permission was given to the proprietor of 'The Sunday Sport' to run an "adult" channel called 'Babylon Blue'. 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 will know what they will be watching".
This matter was raised by this Association with the European Commission in 1996 because it was believed that the terms of the European Directive on Broadcasting Activities were being breached. It was disclosed in November 1996 that the European Commission was to question the
In a reply received from Commissioner Oreja,
This situation was the subject of a debate in the House of Commons in November 1996:
Lawrence Cunliffe MP for Leigh in
Despite the then Government's claim that they were winning the battle against satellite porn, evidence shows that 27 hard-core films were available in
The ITC granted such licences on the understanding that the channels undertake to observe the Programme Code. The latest version of the Code, issued in January 1998, states in Section 1.5 that "the portrayal of sexual behaviour, and of nudity, needs to be defensible in context and presented with tact and discretion". Precisely how such channels comply with these requirements has never been satisfactorily explained. Many films and other programmes which include brutal violence, explicit sexual conduct and streams of obscene and profane language, causing widespread public offence, fail to attract the slightest criticism or censure by the ITC and, as the following examples illustrate, mysteriously are said not to breach the Programme Code.
In June 1996, the situation had become so bad that the former Chief Executive of Yorkshire Television, Bruce Gyngell said that mainstream television is in danger of lurching into a "mire of sleaze" in the battle for ratings. He had refused to transmit God's Gift and The Good Sex Guide because they were a "travesty of the standards an ITV audience should expect". God's Gift demeans those who take part and, saddest of all, it demeans the audience."
Channel 4, over which the ITC has jurisdiction, screened a programme on
"In fulfilling the requirements of Section
6(1)(a) of the Act (to which you have referred in your letter), the ITC must
take account of the likelihood of offence to viewers of the programme
generally. It will have been most likely to cause offence for those viewers who
do not wish to see female nudity on television. This danger was however
minimised by the clear and specific warning at the start of the programme that
its subject matter was "the world of the strip club, where women bare
everything". At a time when the ITC is receiving correspondence from
viewers on a wide range of topics and programmes, there have been no letters
(other than your own) on this particular programme. Our judgement is that Men
Only: The Girl Club was acceptable at the late time scheduled." It should
be noted that no attempt was made to explain how the scenes complied with
Section 1.5 of the Programme Code requiring that sex and nudity be presented
with tact and discretion.
"As a result of the Broadcasting Act 1990, the ITC does not preview the programmes of Channel 4 or any other broadcaster licensed by the ITC. Nor does the ITC have the responsibility for approving the schedules of its licensees in advance. All licensees are however required to adhere to the rules and guidelines in the ITC Programme Code which sets out the relevant standards of acceptability in terms of taste and decency, sexual portrayal, language, violence and other matters. In the event that a licensee breaches the Code, the ITC has the power to impose one of a range of sanctions, for example a formal warning, a public apology or a fine.
Channel 4's planned 'Red Light Zone' season is running late at night on Saturdays for eight weeks from 11 March and is a mix of factual programmes, documentaries and short dramas. Its subject matter of the sex industries had been treated on television before without causing general offence. The ITC will however be monitoring the season carefully as part of our normal regulatory work. If we judge we have cause to intervene, we will do so."
In September 1995 this Association took up with the ITC the repeat screening of the film 'Basic Instinct'. We said that this "controversial film contains brutal violence including a vicious murder and rape and had been associated with at least one stabbing..."
Robin Duval's reply of
"This particular film has been transmitted on BSkyB and ITV on a number of occasions and has produced relatively few complaints from viewers. When shown on ITV it has been edited down to make its content suitable for transmission at . The ITC did not find that what was actually broadcast on 23 September was in breach of the Requirements of the Broadcasting Act of the ITC Programme Code."
After further correspondence, Mr Duval revealed that:
"The Programme Code, inter alia, requires that no version of a film rated 18' by the BBFC should start before on any service. This is a minimum requirement and it may be that further cuts are appropriate in order that what is transmitted conforms with all the requirements of the Code. These are not the same as those applied by the BBFC, partly because of the different structure of the audience that may be anticipated for the film. By the same token, the ITC would regard any detailed comparison of the ITV version with the BBFC version as of limited regulatory relevance. However, I can tell you that, in the case of Basic Instinct, some 3-4 minutes of the film were removed for ITV transmission in order to reduce certain violent and sexual elements, as well as some strong language, so that what was shown would be acceptable to viewers at 10pm".
In May 1995 Channel 4 announced that it was to screen Martin Scorsese's film 'The Last Temptation of Christ'. The Director of Programmes, John Willis, is reported to have said: "The film's history suggests that some will be offended by our decision to screen this film. But we feel it is a very thoughtful and moving piece of work". Although Channel 4 has a special remit to cater for tastes not catered for elsewhere, it is nevertheless bound by the same obligation "not to offend public feeling" as the other independent companies. The public reaction against the screening of this film was unprecedented. The ITC received 1,554 complaints and Channel 4 around 6,000. The ITC rejected all complaints about this film on the grounds that it did not contravene its religious code and that it had been shown on other channels and had been classified by the British Board of Film Classification.
In response to complaints to the Chairman of the ITC about this film, Robin Duval, Deputy Director - Programmes, explained:
"The ITC is the regulator of independent television and issues a programme code with which the broadcasters must comply. This includes rules and guidelines relating to public offence, language, violence, sexual behaviour and a range of other matters. The ITC may intervene with a television company where there appears to have been a breach of the ITC Programme Code or any other licence obligation.
"We have noted your objections to the transmission of Natural Born Killers and appreciate that the film was not to everybody's taste. It is a difficult film relying heavily on stylised images to attack media handling of violent events. When assessing whether or not the film should have been shown on television, we took into account that it had received an '18' rating for both cinema and video release from the British Board of Film Classification. In the event, the version transmitted by Channel 5 was cut further to make it acceptable for television. The film was preceded by a short interview with the director, Oliver Stone, explaining his motivation for making the film as well as giving a clear idea of its content. An unambiguous announcement followed warning viewers that the film contained strong language and violence from the outset. In all the circumstances, we do not believe that many viewers would have been unprepared for its difficult nature. Natural Born Killers was shown at , well after the watershed. It is generally accepted that stronger material exploring adult themes may be transmitted later in the evening. This is not based on an assumption that no children will be watching at this later hour, but on the principle that from parents are expected to share the responsibility for what their children are permitted to see. We concluded that Channel 5 handled the transmission of the film responsibly."
Again no attempt was made to reconcile the content of this film with the ITC's Programme Code although Mr Duval went on:
"We are also sensitive to the amount of programmes containing violence in the schedule as a whole and our Programme Code contains guidance on this matter. ITC licensees must bear in mind that people seldom view just one programme. An acceptable minimum of violence, for example, in each individual programme, may add up to an intolerable level over a period. An examination of the programme schedules does not show an unending stream of potentially offensive programmes. The ITC will however continue to exercise vigilance in respect of what is shown and intervene where necessary. We have called for a reduction in the amount of violence shown on channels that we license, in addition to that which has already been achieved by terrestrial channels since 1987. Currently, the amount of violence on all terrestrial television is about 0.6% of the total transmission time. This includes everything from a verbal threat to murder."
On the general question of violence on television this Association has monitored a number of films shown on the terrestrial channels. The latest report 'More Cruelty and Violence 4' analysed 264 films. We counted 1281 incidents involving firearms, 918 violent assaults and 409 incidents involving offensive weapons. A copy of this report was sent to Sir Robin Biggam, Chairman of the ITC, who replied in person. He referred to "a failure in this report to discriminate between what the public regards on the one hand as trivial and on the other as serious violence". He went on: "The report refers to
This Association replied as follows:
"I note your dissatisfaction with an "all-embracing definition of violence" but suggest to you that the ITC cannot have it both ways. The research by
I also believe it is unhelpful to try to minimise the impact of violence on the screen by proposing that some violence is trivial and other violence is serious. Such a distinction is not made in the ITC's new Programme Code which also seems to adopt an all-embracing approach. Indeed, the Code states that "there can be no defence of violence shown or heard for its own sake". I respectfully suggest that much of the violence shown in the films included in our analysis is there simply "for its own sake" and with little or no justification at all.
Since the researchers, who are sponsored largely by the broadcasters, have consistently failed to reach conclusions on this subject of considerable public importance that satisfy even the ITC, it is hardly appropriate for you to criticise our method of drawing attention to the persistent problem of violent entertainment transmitted by the broadcasting industry."
The media magazine 'BROADCAST' reported on
Sir Robin Biggam replied on 8 October. He said "There are no absolute restrictions on the subjects that programmes may tackle but the ITC requires that the treatment of them complies with ITC Code rules … Channel 4 considered legal advice as well as the requirements of the ITC Programme Code before taking the decision to buy the programme. Cuts were made to make it acceptable for
On 6 October, Channel 4 screened 'Renegade.tv : Sex
The three programmes mentioned above set a new standard of depravity for television and follow calls made at this year's Edinburgh International Television Festival by people in the industry for more explicit sex on TV. The approval, without any public debate or discussion, by the ITC of such programming would seem to be completely at variance with the Government's action to proscribe European satellite TV channels which transmit pornographic programming which the ITC itself says is "unacceptable"!
THE BROADCASTING STANDARDS COUNCIL/COMMISSION
In his reply to the question put to him on-line, Sir Christopher Bland referred to the BBC being "regulated" by the Broadcasting Standards Commission on matters of taste and decency and fairness. It should be made clear that the BSC acts only in an advisory capacity and the notion of being "regulated" is rather overstating the position.
The Director of the Broadcasting Standards Commission, Stephen Whittle, was a studio guest on the Channel 4 programme Right to Reply on
This Association believes that such a non-interventionist attitude is completely at variance with the purpose of the Commission and out of step with Parliament's intentions when setting up the BSC originally. It was certainly not the ideal that inspired those who fought to establish an independent forum for dealing properly with public complaints about programme standards.
In setting up the BSC, Parliament called it a Broadcasting Standards Council clearly implying, by the choice of title, that there are "standards" and that there was a need to maintain "standards" or bring about an improvement in deteriorating "standards". It is evident from the results of the BSC's annual public surveys that there remains, despite the functioning of the Commission, widespread public concern about broadcasting standards. The fifth annual monitoring report of public opinion, published in September 1997, revealed that 64% of respondents believe that there is too much violence on television, 55% too much sex and 41% too much bad language.
The essential weakness in the taste and decency provisions of the Broadcasting Act were explained well by Lady Howe in March 1996 in a letter to a member of this Association. Part of her letter is reproduced here because her explanation is central to understanding how the real problems associated with content regulation have arisen.
"You ask about the Council's interpretation of the 1990 Broadcasting Act's reference to the inclusion of nothing which offends against good taste and decency. This phrase has been incorporated in broadcasting legislation for many years and has now been applied to the BBC with the renewal of its Charter.
To the best of my knowledge, the clause has never been tested in the Courts. What constitutes good taste and decency for the purpose of the Act is, therefore, a matter for judgement by those charged with responsibility for observing the Act, i.e. the Independent Television Commission, the Radio Authority, and the Welsh Fourth Channel Authority.
"The Council is not the custodian of the Act and it must apply its own interpretation of taste and decency in fulfilling its separate duties under the Act. This is set out in the council's Code of Practice. It cannot be a requirement of the law that a complaint must be upheld if the varied Members coming from various walks of life do not accept that such standards have been broken."
This Association 's analysis of complaints dealt with by the BSC shows that there is a general inconsistency and that the outcome of making a complaint is akin to a form of lottery, giving rise to considerable public dissatisfaction. Complaints about brutal violence or obscene or profane language in one programme may be upheld whilst the same or similar material in another programme is not upheld and is excused on a range of grounds not related to the concerns of the complainant.
The rather ad hoc procedures adopted by the BSC were explained in a letter from Lady Howe in June 1995 to a member of this Association:
"We do not act, however, on the individual preferences of the Council's Members in reaching conclusions about any one of the very many programmes available to the audience each day on an increasing number of channels. In forming its collective view about a complaint, we take into account a number of factors. Among them are the time of the broadcast, the channel on which the programme has gone out, any information attached to the programme which indicated its nature to the potential audience, the expectations likely to be aroused by individual contributors appearing in the programme, its title, or the audience's previous knowledge of a series or serial, the established nature of a programme, its targeted audience, and the evidence of research conducted by the Council and others. To these factors will be added the different backgrounds and experiences of the Members of the Council involved in the decision. Only then do we determine the opinion we express in the Finding."
This subjective approach to dealing with complaints was the subject of correspondence between this Association and the BSC. In a letter from Lady Howe in November 1995, she said:
"I think it is important for everyone to understand that the Council is not acting as a court of law and reaching judgements which can balance right and wrong. The members are asked to give their opinions in response to complaints. They do so on the basis of their own experience, their own knowledge of the world, the evidence of the Council's research (which is, of course, always publicly available), and such factors as the time of the broadcast, the nature of the programme, the channel concerned, and the amount of advance information available to the audience so that an informed choice can be made".
That the BSC's Code of Practice was not mentioned as a factor taken into account in the task of "making findings" was the subject of correspondence between this Association and the then Minister of State for Heritage. We sought clarification as to the purpose and status of the Code of Practice. In his response Lord Inglewood said "Section 154 of the (Broadcasting) Act requires the Council to take into account any relevant provisions of the Code in considering a complaint. The Code, therefore, serves two main purposes: acting as an input into broadcasting regulation, and as an aid to the Council in reaching findings on complaints".
Even when a complaint is upheld by the BSC, the broadcasters need not observe the finding.
This Association sent in a complaint about the film 'Ladybird, Ladybird' transmitted by Channel 4 on
It was not until the end of July 1997 that the new Broadcasting Standards Commission published its finding in Bulletin No. 3. The Commission "considered.... that the sustained, graphic violence was of a particularly brutal nature especially when combined with the torrent of verbal abuse. It concluded that the brutality of the violence and the strength and menace of the bad language went beyond acceptable limits and therefore upheld the complaint".
The new Chief Executive of Channel 4, Michael Jackson, immediately launched a scathing attack on the Commission and undertook to repeat the film without cuts. He accused the Commission of arbitrary and subjective judgement and asserted "Channel 4 is very concerned that the BSC should take an extreme view of a distinguished feature film by one of
Astonishingly, the Independent Television Commission is reported to have said that Ladybird, Ladybird did not breach the Programme Code!
John Beyer wrote to the new Secretary of State for Culture, Media & Sport, The Rt Hon Chris Smith MP, respectfully suggesting that an intervention to support the public interest was required otherwise the work and statutory purposes of the Commission, and public confidence in it, would be completely undermined.
Mr Smith's reply of 17 September 1997 is worthy of careful study:
"I understand from the ITC and the BSC that only one complaint was made about it and this would suggest that its late screening and the warnings which preceded it were generally effective in enabling those likely to be offended to avoid it. Nevertheless, both ITC and BSC made full investigations and, as you note, they reached different conclusions. This has happened on a few occasions in the past and I do not regard it as a cause for particular concern. It points up the subtly different roles of the ITC and BSC. The ITC, as regulator, provides a code of practice which is binding on broadcasters through their licence conditions. It did not judge that this code had been breached by Ladybird, Ladybird. The BSC, as you say, represents the consumer and so takes the measure of changing public opinion in judging whether the way in which a programme portrays events would have been offensive to the generality of viewers. The BSC's valuable research into changing public attitudes and its monitoring of the pattern of complaints received inform the guidelines it produces for broadcasters which are, in time, reflected in the ITC Code. There is, however, no reason why the two bodies should always reach the same conclusion about a particular programme.
Of course neither the ITC nor the BSC can prevent Channel 4 from repeating 'Ladybird, Ladybird', nor is that what our system of broadcasting regulation intends. If they could, one offended viewer could deprive all viewers of part or all of a programme; a situation I do not think most would welcome. I myself do not see the repetition of programmes which have previously attracted complaints as a cause for concern in itself. Public attitudes vary - and they also change over time. The channel has been required to publicise the BSC's judgement that it offended on this occasion and will be required to do so again if a subsequent screening also attracts complaints which are upheld. I would hope that - if a further screening does in the end proceed - a prominent notice will appear indicating the nature of the broadcast to be shown.
In view of the fact that a thorough consideration has been carried out by both BSC and ITC, and that Channel Four has done what the BSC required of it in publishing its upholding of the complaint, I do not see any reason to intervene in this case."
It is evident from this, and from Mr Smith's other public statements quoted above, that no intervention to defend the public interest in terms of content regulation is ever likely.
THE OBSCENE PUBLICATIONS ACT 1959
Regulating Communications refers fleetingly to the Obscene Publications Act as an additional means of content regulation. This Association, along with others, has long held the opinion that this Act is failing to work against pornography in the way that Parliament intended.
In the pre-amble to the Obscene Publications Act 1959 it is stated that the intention of the Act is to "strengthen the law concerning pornography". However, Lord Denning, when Master of the Rolls, stated in 1972: "Unfortunately, this legislation against pornography seems to have misfired - at any rate as far as prosecutions are concerned. Experience has shown that much material - which at first sight would appear to be pornographic in the extreme - has escaped the reach of the law". He argued that the law had misfired because of the wording of the statute and the way in which the courts have applied it. Eight years later in the
The Williams Committee Report, published in 1979, which examined the working of the Law on Obscenity and Film Censorship, concluded that the law on these matters "in short, is a mess".
Since 1969 successive Government Ministers and Secretaries of State with responsibility for legislation related to obscene publications have maintained, in correspondence and meetings with this Association, that there is not sufficient consensus in Parliament to enact measures that would effectively strengthen the Obscene Publications Act.
This Association recognises and welcomes subsidiary measures, which we have actively supported with nationwide petitions, to deal with pornography involving children, indecent displays and video recordings.
However, all of these measures, effective though they may be, leave intact the Obscene Publications Act which has singularly failed to contain the burgeoning pornography industry which continues to operate in direct defiance of the intention declared in the Act of Parliament to outlaw pornography.
The weakness of the present law was confirmed by former Superintendent Michael Hames in an interview with The Times,
Representation to the Director of Public Prosecutions in 1991 concerning the literary abomination Juliette by the Marquis de Sade, which contains graphic descriptions of unspeakable brutality and sexual torture, resulted in no criminal proceedings against the publisher because of "insufficient evidence" that the book is obscene in the meaning of the law. This led in 1992 to a motion signed by 87 Members of Parliament calling for a review of the law.
The proliferation of new cable and satellite TV channels devoted to so called "adult" and erotic material being granted licences by the Independent Television Commission, gives new impetus and urgency to the need for effective law on obscenity.
Recent attempts by the Government to outlaw hard core pornography being transmitted into
The Independent Television Commission recommended that the channel should be proscribed in October 1997. The British Government has not yet been able to implement the ban because of the legal challenge which is expected to go to the European Court of Human Rights. The channel, backed by American and French cash, is using the European Convention on Human Rights and its guarantee of freedom of speech to fight the Proscription Order. We understand that the Culture Secretary, The Rt Hon Chris Smith MP, has called in outside lawyers to advise on the extent of the Government's powers to outlaw such channels.
The last Conservative Government used Article 22 of the European Directive (which allows nations to prohibit material which could harm children) to outlaw satellite pornography. This system has so far worked effectively to close down channels such as 'Red Hot Dutch', 'TV Erotica' and 'Italian Satisfaction Club Television'.
When the ITC first recommended the Proscription Order for 'Eurotica Rendez-Vous', it said: "The Commission concluded that the channel, based in
The ownership of 'Eurotica Rendez-Vous' is complex. At one time an American company called Spice International was involved. American money is understood to be backing the channel, but the day to day business is run by executives based in
The problems over proscribing 'Eurotica Rendez-Vous' were revealed in an exchange of letters between the Chairman of the ITC, Sir Robin Biggam and this Association. John Beyer warned, "If the Government loses this test case, Article 22 of the EC Directive will have to be rewritten as a priority."
Low budget hardcore pornography is now being made available in ever increasing quantities using all the modern means of communication. A letter from
To illustrate the enormity of the problems created by a benevolent attitude to pornography, we quote from a feature article published in 'The Sunday Times' on 10 January 1998 describing the huge slick industry that hardcore pornography has become:
"From a one-storey warehouse five miles north of Beverly Hills, Vivid Video turned out 125 productions last year. For the unfamiliar, they all look startlingly similar: five sex scenes per hour, most including some lesbian and group action, strung together with dull words badly acted ... For 23 hours a day, seven days a week, dubbing machines and digital edit suites churn out product for distribution on five continents via video stores, mail order houses, the Internet, hotel chains, pay-per-view, satellite networks and, especially lucrative just now, the European cable market. In 1996, according to Adult Video News, 8,000 new titles hit the market, with Americans clocking up 665 million rentals (nearly a tenfold increase in ten years) and spending $8 billion on porn altogether - twice what they spend at mainstream cinema. Vivid Video and its hardcore productions were featured in 'Louis Theroux's Weird Weekend' screened on BBC2 recently."
To illustrate further how the Act has over time been rendered impotent, a study of pornography trials in
One object of the study was to ascertain the legal threshold for pornography - in other words what distinguished material that would be considered obscene from material that would be considered not obscene. The nature of the pornography, in both volunteered guilty pleas and not guilty pleas, that went to trial and resulted in conviction, involved material which included extreme torture (electric shocks applied to the genitals, fisting, severe beating of the genitals, ball gags to the mouth, full body suspensions); sex with animals (including the insertion of animals into the vagina, oral sex with animals and the masturbation of animals to ejaculation); and coprophilia and the use of enemas. This means that much of the pornography transmitted on television in
Had the Obscene Publications Act been effectively strengthened in the past, the protracted problems now being experienced would not even have arisen.
THE PROTECTION OF CHILDREN ACT 1978
In Section 4.48 Regulating Communications refers to the Protection of Children Act as an "existing law" which impinges upon broadcasting. In recent years several programmes have included images of children which, by their context, could be regarded as "indecent" within the meaning of the Act. This Association referred these programmes to the Independent Television Commission and to the Broadcasting Standards Commission and to the Crown Prosecution Service. We also referred the matter to the Home Secretary which led to protracted correspondence with Lord Williams of Mostyn.
The broadcasting establishment has taken this Act of Parliament so seriously that the Broadcasting Standards Commission's Code of Practice (third edition) advises that:
"The Protection of Children Act (1978) makes it an offence to take an indecent photograph, film or video-recording of a child under the age of 16, or involve a child below 16 in a photograph or recording which is itself indecent - even if the child's role in it is not. Even when legal advice judges material to be on the right side of the law, it should be subjected to careful scrutiny at the highest level over the need to include the sequence in the programme. This applies even when the child is played by an older actor or actress."
The BBC Producers' Guidelines issued in November 1996 advise that:
"The Protection of Children Act (1978) covers cases of children filmed or otherwise displayed for pornographic purposes. It is an offence under the act to take an indecent photograph of a child under the age of sixteen or to involve a child under that age in a photograph that is itself indecent even if the child's role is not. Explicit sexual contact between adults and children should not be depicted in any BBC programme. Programme makers should consult the BBC's legal department if they have any queries about the law as it affects children."
Curiously, the ITC's Programme Code does not specifically mention this Act although Section 1.5 Sex and Nudity is worthy of inclusion here:
"The portrayal of sexual behaviour, and of nudity, needs to be defensible in context and presented with tact and discretion. Of the 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."
"Representation of sexual intercourse should be reserved until after 9.00 pm. Exceptions to this rule may be allowed in the case of nature films, programmes with a serious educational purpose, or where the representation is non-graphic, and must be approved in advance by the licensee's most senior programme executive or the designated alternate."
"Graphic portrayal of violent sexual behaviour is justifiable only very exceptionally. The same approval process must be followed."
In a letter to Sir Robin Biggam, Chairman of the Independent Television Commission, this Association expressed the opinion that this programme was in breach of the statutory requirements on incitement to crime and on presenting matters of public policy with due impartiality.
The ITC's Deputy Director - Programmes, Robin Duval, in a lengthy reply, helpfully explained that Channel 4 took extensive legal advice before transmission and that they took care not to promote or schedule the programme in a way likely to draw it to the attention of disturbed viewers. According to Mr Duval the programme illustrated "some of the consequences of the law's failure to qualify content by reference to context".
In other words the pictures of naked children included in the programme were not "indecent" because they were presented in a context of explaining a failure in the Act! No doubt people with an active interest in and sexual preference for children fully appreciated this fine distinction!
This Association also referred this programme to the Broadcasting Standards Commission suggesting that it was in breach of their Code of Practice. In the Commission's finding, Channel 4 explained that the central thesis of the programme was that "freedom of expression....was being restricted" and that "common sense had been abandoned in a misguided attempt to protect children by demonising natural images of childhood.... The decision to transmit at rather than a later time was to avoid the risk of some viewers imputing to the photographic images....a perceived indecency which did not exist".
The Broadcasting Standards Commission, in not upholding the complaints, considered that the subject matter had been handled sensitively and would not have created widespread offence.
This Association also referred the programme to the Crown Prosecution Service suggesting that Channel 4 and the ITC should be prosecuted for being in possession of and transmitting indecent pictures of children. After months of deliberation, Richard Glenister, Central Casework, replied saying "I have decided that there is not a realistic prospect of conviction....".
This Association then wrote to the Home Secretary, The Rt Hon Jack Straw MP, about this serious matter suggesting that it is not the role of broadcasting to undermine the law, and, surely, not the role of the CPS to make such decisions without recourse to the courts. John Beyer said, "If child pornography, that is, indecent pictures of children, was intentionally outlawed by Parliament, it should surely be illegal and those who broadcast such imagery should surely be prosecuted".
In another programme transmitted, also by Channel 4, on 8 January 1998 entitled 'The Devil Amongst Us', described as "looking at some of the complex ethical dilemmas surrounding child sex offenders", a number of men were interviewed including one who was accessing images of naked children on the Internet - and, moreover, showing how easy it is to access them. At least in this programme the producer ensured that the faces of the children were obscured!
Recent international action by police around the world shows that the Protection of Children Act 1978 retains substantial efficacy. However, we believe that the legal definition of "indecent" should, for the sake of the children, be interpreted much more restrictively.
mediawatch-uk recommends that:
1. The Broadcasting Authorities do much more to encourage public participation in determining programme policy on taste and decency issues rather than continuing to make broad assumptions about programme content based on the absence of complaints.
2. The taste and decency provisions of the Broadcasting Act and the BBC's Royal Charter be reformulated so as to provide definition of the terms and better serve the public interest.
3. The relevant sections of the ITC Programme Code and BBC Producers' Guidelines be overhauled and ambiguities removed so that there is better definition of terms leading to improved application.
4. The requirement by the ITC to preview controversial programmes - removed by the 1990 Broadcasting Act - be restored and added to the BBC's Royal Charter.
5. The Broadcasting Standards Commission be given greater powers to strengthen the voice of the consumer against the powerful interests of the broadcasters and that their findings be given greater force so that complaints upheld means that the programmes in question will not be repeated.
6. The British Government seeks to strengthen clauses in the European Directives concerning the transmission of pornographic material via satellite and cable TV systems. In particular that the terms "pornography" and "gratuitous violence" in Article 22 of the European Directive on Broadcasting Activities be defined so that TV channels which transmit such material can be outlawed without prolonged legal wrangling.
7. The present ill-defined Obscene Publications Act be amended forthwith with a workable definition of "obscene" that would enable successful prosecution of material that is presently "legal". An effective amendment would give greater confidence to the Police, Customs & Excise, Trading Standards Officers to deal with the trade in obscene articles which is said to be "out of control".
British Government, which enjoyes a "special relationship" with the
9. The Protection of Children Act be clarified with a more restrictive legal definition of "indecent".
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