VI. CONTENT REGULATION
The limits of Internet regulation
112. Although the Internet is being used and will
be used increasingly as a medium for audio and video material,
the Internet is fundamentally different to traditional broadcast
media. Whereas there is closely controlled and licensed access
to broadcast media, there is no spectrum scarcity on the Internet
and no tradition of licensing. The Internet has flourished with
a minimum of regulation, partly because the Internet first developed
in the United States, a country that provides specific constitutional
protection for freedom of speech.
We have noted previously that, due to the almost infinite scale
and international character of the Internet, content regulation
of the traditional kind is not viable for the Internet.
113. The Government believes that a distinct regulatory
approach to the Internet is required.
The Government reaffirms its commitment to self-regulation through
the Internet Watch Foundation as the most effective means of preventing
illegal material being available on sites controlled by United
Kingdom Internet service providers.
Ms Hewitt saw the Foundation as a "model" for tackling
the problem of illegal content and the approach retains the support
of service providers.
The White Paper also commits the Government to the promotion of
filtering devices for the Internet and of the more widespread
rating of Internet sites, measures to which service providers
are also committed.
114. Despite the White Paper's avowed commitment
to a distinct approach to Internet regulation, a number of organisations
have expressed concern that the White Paper might herald a move
towards new forms of content regulation for the Internet.
The White Paper refers to the establishment of "a high level
set of principles and objectives for the regulation of content
across all electronic communications".
The Government proposes to give OFCOM responsibility "for
maintaining content standards in the electronic media".
The White Paper indicates that a combination of self-regulation
and "co-regulation" will be required for services such
as the Internet. "Co-regulation" is defined as entailing
an "active involvement of Government or regulator" and
the Government states that, in cases of co-regulation, "the
regulator will ... have scope to impose more formal regulation
if the response of industry is ineffective or not forthcoming
in a sufficiently timely manner".
115. Both the British Internet Publishers' Alliance
and AOL were concerned that the attempt to propose general principles
for the content of all electronic media would undermine the axiom
that Internet content regulation was confined to the laws that
also applied offline.
Daily Mail and General Trust plc was worried that proposals for
content regulation in the White Paper might be applied to newspapers'
Internet activities, with newspaper content online open to new
forms of regulatory interference.
This concern was shared by other sections of the newspaper industry.
116. Both Mr Smith and Ms Hewitt were keen to dispel
any fears that the White Paper included any new proposals for
regulation of the Internet. They said that the Government had
no intention of proposing censorship of the Internet or moving
"even half a step down the road towards State control of
We welcome these clear and unequivocal statements that the
Government is not seeking to establish any new forms of Internet
regulation by means of proposals in the White Paper. We consider,
however, that fears on this score arise directly from what can
most generously be interpreted as infelicitous drafting in the
White Paper. The same mistake must not be repeated in the legislation
that follows. We recommend that the new regulator be explicitly
excluded by statute from imposing regulatory obligations relating
to Internet content. We further recommend that the Government
reaffirm its commitment to self-regulation as the best and only
way forward for Internet content regulation and clarify that the
Government does not envisage any form of "co-regulation"
of the Internet involving additional powers of enforcement that
go beyond the principle that the general law should apply online
117. The practical and philosophical objections to
statutory regulation of Internet content apply as much to audio-visual
content as to text. Internet broadcasting cannot and will not
Nevertheless, the White Paper implies the establishment of some
standards for the Internet content of some of those licensed to
broadcast in other ways. The White Paper states that "we
would expect to see public service broadcasters applying the same
high standards and high quality in their services on the Internet
and via telephony as they do on their traditional broadcast businesses".
The document also explains that the Government expects broadcasters
"who have a responsibility to broadcast accurate and impartial
news to maintain those standards in their news services in other
118. These statements were seen by ntl as implying
a different regulatory approach for licensed broadcasters on the
Internet compared with other Internet broadcasters and ntl concluded:
"The only effect of
a policy of differential regulatory expectations would be to marginalise
some of the most capable and responsible companies in exploiting
the new media to the full. Attempting to regulate only those you
happen to be able to reach for other reasons is short-sighted
and will ultimately prove counter-productive."
It is instructive that the Radio Authority told us
that it did not seek control over Internet radio content: "The
fundamental reason for licensing broadcasts has to do with spectrum
scarcity ... There is no spectrum scarcity of any significance
on the Internet and therefore it would not be appropriate for
the Radio Authority to seek to regulate radio stations on the
On the same basis, we consider that it would not be appropriate
for the new regulator to use its licensing powers for media with
spectrum scarcity as a back-door method of Internet content regulation
and we recommend that there be a specific statutory prohibition
on the new regulator doing so.
The regulation of licensed broadcasters
119. Over time, it is likely that a great deal of
broadcast content will migrate to the Internet or broadband networks
that give the viewer much more control over what he or she chooses
to watch. As Telewest argued, "with the advent of digital
broadband technology, the idea that broadcasting is a 'push' form
of communications has to be adjusted. Consumers will increasingly
'pull' material into their premises so there will be a need to
pull back content regulation the more that viewers control the
signals they access."
AOL UK questioned whether regulation had been properly re-assessed
and re-balanced in the light of the reduction in spectrum scarcity
and questioned "whether public service broadcasting will
still be central or important to consumers' lives in five or ten
years' time or whether the choice of content and services and
of platforms over which these can be accessed will be so diverse
as to end the need to safeguard public service broadcasting".
Mr Cruickshank believed that the White Paper had not properly
reflected the timescale over which the Internet would have such
a general impact as to render obligations such as impartiality
of news broadcasters inapplicable: "That is an elephant in
the corner, as they say in America; it is very soon".
120. The White Paper proposes what the Government
sees as a flexible regulatory framework based on a three-tier
structure with the "basic tier supporting standards across
all services" and the two further tiers applicable to what
the Government terms public service broadcasters.
As part of the first tier, the White Paper proposes that all broadcasters
would be subject to "any relevant underpinning codes establishing
negative minimum content standards set by OFCOM".
The second tier would be concerned with the delivery of public
service obligations that "are easily quantifiable and measurable"
while the qualitative public service remits of what we earlier
termed the "privileged broadcasters" would be covered
under the third tier.
One of the principles of the White Paper is that the case for
regulation will decline over time so that regulation will have
to be "at the minimum necessary level", kept under review
and removed where appropriate.
121. The ITC supported "the White Paper's broad
approach to simpler, streamlined regulation graduated according
to a medium's pervasiveness and invasiveness (i.e., how much conscious
prior choice the consumer has over the selection of material)".
We have previously noted that the distinction of services that
are universally available and "pushed" into the home
and those that are selected and "pulled" by the viewer
is sensible and have argued that non-scheduled services should
only be subject to limited content regulation.
Video Networks Limited considered that video-on-demand and interactive
services would increasingly compete with the Internet and that
regulation had to reflect that reality: "The regulatory régime
that needs to apply to these services must parallel that of the
liberal environment of the Internet rather than the more restrictive
régime traditionally applied to television advertising,
since ultimately in the future all services are likely to be received
by broadband Internet".
In the future, universal negative content regulation will cease
to be possible. As the Internet becomes used increasingly as a
medium for broadcast content, there will be an alternative to
the licensed broadcasters. The regulatory régime for licensed
broadcasters, and for non-scheduled services in particular, must
122. In 1998 we noted that "the capacity for
comprehensive negative regulation will slip away, but the desirability
of positive regulation will still remain".
Ms Hodgson argued that the public was realistic about the changing
nature of the broadcasting market, but still saw a role for public
She argued that, while certain broadcasters still received certain
privileges, including direct or indirect public subsidy, there
would be a strong case for accountability for such subsidy in
terms of positive programming requirements.
We expect there to be a continuing case for positive programming
requirements for the "privileged broadcasters" and any
other licensed broadcasters that may in future be in receipt of
direct or indirect subsidy in respect of public service content.
123. One positive programming requirement that currently
applies to certain broadcasters, and that will in future apply
more generally, relates to access to broadcasting for people with
Since the White Paper was published, the Government has issued
detailed proposals to increase the target for the provision of
subtitling on digital terrestrial television from 50 per cent
of programmes by the tenth anniversary of the start of the service
to 80 per cent by the tenth anniversary.
The Government also proposes to extend these requirements to digital
cable and satellite services when legislation permits, but to
give the regulator power to exempt certain categories of channels
(on all platforms) on a case-by-case basis.
These proposals have been welcomed by the Royal National Institute
for Deaf People.
BSkyB advocated a voluntary rather than legislative approach to
subtitling, arguing that compulsory requirements would place burdens
upon new channels.
Over 5 million people regularly use subtitles.
Take-up of digital television among people who are deaf or hard
of hearing has been lower than amongst the population as a whole,
largely due to the inaccessibility of the digital channels.
We strongly support the Government's recent proposals to establish
more stretching targets for subtitling on digital terrestrial
television and to extend such obligations to digital cable and
satellite services by means of new primary legislation. We consider
that any decision by the new regulator to exempt providers from
these targets should be transparent and based on clear criteria.
124. For the privileged broadcasters subject to positive
content regulation by the new regulator, the Government is encouraging
a move away from "the detailed, prescriptive requirementsoften
dubbed 'box ticking'which are contained in present licences"
that the Government considers "may inhibit creative innovation,
and thus harm both the public interest and the commercial success
The Government envisages a greater role for the development of
statements of programme policy and self-regulatory mechanisms
by broadcasters, but with back-stop powers for the regulator if
this approach does not work.
These proposals were broadly welcomed by ITV, Channel 4 and Channel 5.
The regulation of the BBC
125. When we advocated the establishment of a single
regulator for the communications industry in 1998, we recommended
that the new regulator should have oversight of broadcast content
regulation "for all broadcasters, including the BBC".
When we reviewed the BBC's funding in 1999 we concluded that "the
present arrangements for the accountability and regulation of
the BBC are not sustainable to 2006".
We argued that the BBC's governance was inseparable from other
broadcasting regulatory matters and had to be integral to the
review preceding the White Paper. We reiterated our earlier recommendation
that BBC content regulation should be the responsibility of the
126. The White Paper does propose some changes to
the way the BBC is regulated, but does not go nearly as far as
we have repeatedly recommended. The Government intends that OFCOM
will be responsible for agreeing targets for regional production
with the BBC and monitoring the Corporation's compliance with
It is also envisaged that OFCOM's over-arching codes setting out
first tier minimum standards will apply to the BBC, although responsibility
for regulation of the impartiality requirements in respect of
the BBC would remain with the BBC Governors.
Unresolved complaints about failure to meet basic standards set
out in the code could be taken up by OFCOM.
Finally, with regard to programme policy, the White Paper states
that "the BBC's Board of Governors will naturally want to
consider observations made by OFCOM".
127. The BBC unsurprisingly welcomed the proposals
on its own role in the White Paper.
Sir Christopher Bland and Mr Dyke considered that there should
be a plurality of content regulators reflecting the different
status of broadcasters.
Mr Smith argued that the continued separate regulatory position
of the BBC was justified both because the BBC was a broadcaster
subject to special rules and a distinct remit established by Parliament
and because the BBC was the recipient of licence fee income.
He also made reference to the fact that the BBC "judges itself
to be fiercely and robustly independent of political influence,
and rightly so".
128. A number of witnesses argued that the White
Paper represented a missed opportunity to reassess the BBC's governance.
ITV argued that the fact that the BBC was largely excluded from
the new regulatory structure would inhibit the development of
coherent regulation reflecting the complex interaction between
the BBC and the rest of the broadcasting market.
This view was echoed by Channel 4, BSkyB, Emap Performance and
the British Internet Publishers' Alliance.
Criticism on these grounds was by no means confined to the BBC's
commercial rivals. The Broadcasting Standards Commission observed
that "it seems inconsistent with the overall direction of
the White Paper proposals that the BBC is not brought more clearly
within the regulatory framework".
The National Consumer Council viewed the exclusion of "positive
content regulation of the primary public service broadcaster from
the remit" of the new regulator as "illogical"
and thought that it did "not make sense from the consumer
point of view to have the major broadcaster outside the orbit
The Council did not see any logic in the notion that the BBC's
editorial independence was dependent upon its separation from
an external regulator, implying as that notion did that other
broadcasters were subject to constant interference.
129. The ITC argued that the new regulator would
take some time to settle down and that the BBC's role could then
be examined in 2004 in the context of the review of the BBC Charter.
This was also the view of Mr Smith, who contended that it would
be wrong for proposals in the White Paper to pre-empt parliamentary
consideration of Charter review.
This proposed approach is precisely the one which we have previously
argued should be avoided.
There is a real danger that the regulatory régime for
broadcasting will be in a state of almost continuous flux and
uncertainty from now until 2006. By failing to provide for an
integrated approach by the new regulator to all broadcasters including
the BBC, the Government has left a large amount of unfinished
business. We find it absurd to suggest that Parliament's role
in reviewing the BBC's status would somehow be diminished if the
BBC were subject to equal treatment with other broadcasters in
legislation that will doubtless be subject to extended and detailed
consideration by both Houses of Parliament. We recommend that
the House of Commons be given a full opportunity early in the
next Parliament to consider the future regulation and governance
of the BBC as part of the process leading to enactment of the
new regulatory régime.
p 9; Q 537. Back
(1997-98) 520-I, paras 106-108, 114. Back
5010, para 6.3.2. Back
para 6.10.3. Back
610, 537; Evidence, pp 8, 158. Back
5010, paras 6.10.4-6.10.7; Evidence, pp 8, 158; QQ 20, 539, 541,
p 158; Q 59. Back
5010, para 6.3; emphasis added. Back
370 Ibid. Back
5010, p 83 and para 6.3. Ms Hewitt employed the phrase "co-regulation"
in oral evidence in the context of the Internet Watch Foundation,
Q 610. Back
pp 48, 158. Back
p 149; Q 530. Back
pp 16, 207. Back
610, 650. Back
(1997-98) 520-I, para 107; Evidence, p 133. Back
5010, para 5.9.1. Back
para 6.6.2. Back
p 24. Back
p 236. Back
pp 156, 157. Back
5010, para 5.4. Back
para 5.6.1. Back
paras 5.7.1, 5.8.1. Back
paras 1.3.9, 8.11.1-8.11.4. Back
p 142. Back
(1997-98) 520-I, paras 111, 116. Back
130; Evidence, p 33. Back
(1997-98) 520-I, para 117. Back
482, 488. Back
5010, paras 5.6.1, 5.6.2, 7.6.2. Back
613; HC Deb, 29 January 2001, col 26W; Review of the Statutory
Requirements for the Provision of Subtitling, Sign Language and
Audio Description Services, Department for Culture, Media
and Sport, para 4.2.2. Back
paras 4.6.1-4.7.5; Q 631. Back
p 226. Back
370; Evidence, p 239. Back
(1999-2000) 25-I, para 103. Back
p 227. Back
5010, para 5.4.3. Back
paras 5.8.3-5.8.5. Back
pp 115, 126, 209. Back
(1997-98) 520-I, para 158. Back
(1999-2000) 25-I, para 105. Back
paras 111-113. Back
5010, para 4.4.4. Back
para 5.6.4. Back
409 Ibid. Back
5010, para 5.8.4. Back
pp 131-132. Back
440, 448. Back
pp 114, 115; QQ 410, 411. Back
430, 276; Evidence, pp 47, 105, 127. Back
p 215. Back
p 2; Q 12. Back
420 Ibid. Back
478, 480. Back
649. See also Cm 5010, para 5.8.6. Back
(1999-2000) 25-I, para 111. Back