Actively
campaigning for accountability and public participation in broadcasting
Regulation the key issue
Responding to
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
INTRODUCTION
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.
THE BBC
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
requirements?"
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
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.
On
"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
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
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.
On
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
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."
On
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
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.
RECOMMENDATIONS
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".
8. The
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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