Examination of Witnesses (Questions 420-439)|
CBE, DAVID EDMONDS,
TUESDAY 26 FEBRUARY 2002
420. Yes; well, let me tell you, the Advertising
Association disagrees with you, they say they cannot differentiate.
The Chief Executive of Independent Television, who came before
us, his marketing person said they could not differentiate from
under-tens. Now I am very happy with what you have just said,
because I thought that was just plain rubbish; so what you have
just said is that not only can you differentiate but, within your
regulations, you do differentiate?
(Ms Hodgson) No. I misunderstood your question. What
I said was that there are constraints on what can be shown around
programming for children, and there is a variety of age bands;
and I will write to you about that.
421. But I specifically put that to you, the
(Ms Hodgson) I will write to you about those age bands.
422. I have actually read the regulations, and
I would contend that, yes, they probably are being met by the
advertisers, but that they are by no means enough, because what
we have is extensive advertising in some broadcasting schedules,
chopping up programmes, as well as between programmes; and, with
the best will in the world, for the vast majority of parents,
it is then very difficult for them to control what their children
see. I would put to you that the EDM has been signed by over 120
colleagues now, and that there is massive support for change,
massive support for change. Now you say also, "empower viewers
through strengthening accountability." Now the Advertising
Association tell me that they have had very few complaints; now
I would suggest that they have had very few complaints because
the vast majority of the population actually do not know how to
complain about this nature of things, it is almost a soft problem,
it is not an absolutely horrific, explicit problem, it is a soft,
kind of `hard to grasp' problem. And when I did a live radio `phone-in
programme, with a very well-known journalist, who says on air,
"I know nothing about this; we're going to see what happens,"
a huge number of people telephoned in, 99 per cent of them agreeing
with my stance, and they were absolutely overwhelmed, they could
not believe how many people were ringing in about it. And, with
the best will in the world to these people, these are not the
sort of people that knew how to contact you and complain, or the
Advertising Association, or anybody else, but they knew how to
make their complaint with this telephone call, and they made it.
And there was one person who half-supported the Advertising Association's
point of view, and the vast majority of the rest of the public
did not. Now does that give you grounds for concern, that complaints
are not actually reaching you?
(Ms Hodgson) You make clearly a very strong case.
Our advertising guidelines are currently out for public consultation,
and this will be an ideal opportunity to take into consideration
your own and other Members' concerns. I think people actually
do know how to complain; we get thousands of complaints a year.
And what is quite interesting is, with the increased competition
between channels, there is actually an increase in complaints
about advertising; it is something we take very seriously. As
a result of the increase in complaints about advertising, this
is general, outside the children's area, obviously there has been
an increase in the complaints that we have upheld, particularly
in the area of misleadingness and harm. So I think that certainly
some of our current regulations are being effective; and we hear
what you say and it is the right moment to express those concerns.
423. Can I just interrupt there, because I would
like to follow up your question about complaints; obviously, I
will return to you, Debra. Debra Shipley has been talking about
complaints and the alleged low number of complaints, but ought
it not to be that if there are standards the standards ought to
be upheld and enforced, whether there are any complaints or not?
(Ms Hodgson) Of course; and we hope they are.
424. I see in the press today that, after the
obscenity with which Mr Stephen Fry introduced the BAFTA awards,
before the watershed, last Sunday evening, the BBC said that they
had had very few complaints, and then went on to say, curiously,
that some of the things he said were within the guidelines; well,
let us forget that latter part. But if there are standards to
be upheld, ought it not to have to depend upon people, as Debra
Shipley said, having the skill and knowledge about how to lodge
complaints, ought not the regulating authorities enforce the standards,
even if there were not one complaint?
(Ms Hodgson) You are absolutely right, Chairman, and
indeed we do; and a number of the uphelds, in this area of advertising,
as in standards elsewhere, are the result of our staff monitoring.
In the case of the BBC, that is outwith the competence, the statutory
powers, of the ITC; but it is within those of my colleague, so
I will hand over to Paul Bolt.
(Mr Bolt) Yes; we, at the BSC, can only act on complaints.
The programme you mention particularly we have already had complaints
about, so we will be looking at that.
425. So you take a less casual view of it than
do the BBC?
(Mr Bolt) Obviously, we will look very seriously at
it, when prima facie there is obviously something to look
Chairman: Thank you.
426. Is it a concern to you that the Advertising
Association, it says it in front of me, it is written here, "Broadcasters
do not treat under-fives as a discrete group," and they said
to us earlier on, another group, that under-tens was the whole
sort of target group, that they do not treat it as a discrete
group, therefore the advertising is placed anyhow? So something
that might be appropriate for a ten year old to watch, I think,
a trailer, for example, of Lord of the Rings, for example, advertising
the film, for ten year olds, fine; for three year olds, they are
going to jump out of their skin. Is that a concern to you?
(Ms Hodgson) Of course it is.
427. That has happened in the last few weeks?
(Ms Hodgson) I think they are answering your question
rather broadly. It is the responsibility of the licensees to make
sure that material is appropriate for those who are likely to
be watching at that time; and if there is a particular concern
that you have I would be grateful to receive it and we will look
428. I have a number of concerns; one is of
that sort of quality, and the lack of real teeth about what you
are saying, regarding that sort of thing, but also the sheer quantity
and the timing, chopping up programmes, in amongst the programme,
as well as between, and the sheer amount of it, the sheer amount,
(Ms Hodgson) I would question that we do not have
teeth. Obviously, matters of judgement about whether something
is appropriate are matters of judgement, but we do take the points
you are making very seriously; and, as I said, specific complaints
that you have, please forward to me and they will be considered,
and the general points you made will be looked at in the context
of the current consultation about advertising standards.
429. But I keep repeating this question about
the difference between pre-school and under-tens; is that a concern
to you, that they do not differentiate, and is that something
you will take up with them?
(Ms Hodgson) Of course we will look at that, that
is exactly the kind of point that a consultation about these issues
should consider. On your broader point, which is advertising within
programmes that are focused on children, it is obviously a big
debate, right across the European Union at the moment, and we
see the Scandinavian countries, Denmark, which did have a ban,
has just removed it. It is quite a difficult issue for us, that
one, because, understandably, the commercial broadcasters are
fairly cautious about putting on programmes, if they have no means
of raising the revenue to pay for those programmes. So I think
that is a debate that we will have to have.
430. I would say, to that, that it was put to
us that children's television was public service broadcasting,
and they were very proud of it because it was public service broadcasting;
however, when I put to them, "How do you justify chopping
it up with commercial TV?", which I quote here, banning advertisements
during programmes they tend to find results in banning advertising
products from parents, particularly mothers. So it is a major
commercial organisation, it is not public service broadcasting
at all, it is just a major commercial organisation underpinning
the rest of the service, it is nothing to do with public service
(Ms Hodgson) Parliament, of course, took a view, in
the 1990-1996 Act, that they would ask commercial organisations
to undertake certain public service obligations, such as news,
diversity and, in this particular case, children's programming.
There is clearly, as competition increases, a question of the
degree of public service that the commercial companies can afford.
I think, probably, a practical decision has to be made about the
level of obligation on them and what is affordable in the state
of the market; that will be a matter that, of course, can be decided
by this House when it discusses the new Communications Bill.
431. There are three areas really I want to
look at, the BBC and analogue switch-off, but before I do that,
if I may just concentrate for a moment on radio. While I can see
the medium and longer-term advantages in having an OFCOM, because,
well, we know the reasons why, I have got a long memory, and I
remember when radio used to be a part of the Independent Broadcasting
Authority and it was really sidelined, it was always television
and radio was a small budget thing, and Brompton Towers, where
the Independent Broadcasting Authority was based, 40 Brompton
Road, if I remember rightly, I think the radio division had a
few rather undecorated offices, and that was about it. Does the
Radio Authority fear that now rejoining a large OFCOM will be
just turning the clock back?
(Mr Stoller) Of course, it is an area of concern;
we remember what you very accurately recall, the risk that radio
and other, smaller media can become something of a Friday afternoon
job. My colleagues, I think, know this, and in all the discussions
we have had of looking at possible models for OFCOM, I stress
they are only possible models for OFCOM, I think everybody has
understood that there is a need to protect that which is distinct
about radio. At the same time, I am sure we would say, from the
Authority's point of view, that there are things that we do that
are not distinct, and, clearly, if media and telecoms and spectrum
are to converge and that is to be regulated in a converged way,
quite a lot of what the Radio Authority does will fall into those
common areas, and our concern has been to protect those things
which are distinctive about radio. What are they, in terms of
what OFCOM is likely to be asked to do. Clearly, they are licensing,
because the Radio Authority still has a substantial task to do
new analogue and digital licensing, so licensing for radio is
a separate function; if the new legislation continues with formats
for those licences, as we very much hope that it will, then the
maintenance of those formats becomes a separate task. The idea
that we are now making very good progress on, the third tier of
radio, access radio, will have a distinctiveness. There will be
certain tasks need to be distinct. I have persuaded my colleagues,
I think, and those who have done the initial preliminary design
that radio needs something of a separate identity within OFCOM,
but not such as to simply reproduce what we do now in a different
form; that which needs to be done separately should be done separately,
but that which can fairly sensibly become part of common or converged
activity should be done in that way. And I am pretty confident
that the work that has been done so far, subject, of course, to
what the OFCOM Board actually think, when they come in, because
they will decide, not us, I am confident that that sort of work
indicates we can look after the needs of radio, and indeed have
the sort of flexibility within OFCOM that can produce necessary
sectoral attention, not just for radio, which is my concern, but
for any other medium or area which needs it, and a flexible OFCOM,
which I think I can say we are all signed up to, will be the way
of doing that.
432. Did you consider at all the model that
was proposed by this Committee, I think about three or four years
ago, in its Select Committee Report, which suggested that an OFCOM,
whatever we were suggesting it be called at the time, should have
its functions split in order to protect minority media, like radio,
have its functions split between the regulation of the delivery
of services and the actual content of those services?
(Mr Stoller) Yes, we did, and indeed colleagues might
want to come in, in a moment, on this, we looked at a whole range
of models. And, again, what we are working with at the moment
as a possible idea is no more than illustrative. You can actually
cut up the work in a whole different range of ways; from a narrow
radio perspective, that is less attractive. The two examples that
I pulled out are particularly of areas where radio has a specialism;
one of those, licensing, would more logically fall into infrastructure,
the other, format regulation, would fall into content. We think
they are inextricably linked, and it is with that in mind that
we are less attracted to the two-pillar model; it can work perhaps
for other media, and maybe for radio when the radio licensing
task is completed, in six or seven years' time, but we think not
at the moment. I do not know whether colleagues would like to
say anything else about structures.
(Ms Hodgson) As my colleague said, we are all agreed
on the need for radio to have the kind of support that will enable
it to be as effective as it has been in the last decade. The three
broadcasting regulators are all agreed that we would like to see
a Content Board within OFCOM, as a sub-committee of the main Commission,
so that there is a focus for the particular issues that I think
you are concerned about, and that the kind of trade-offs that
will need to be made between quality and range of content and
economic and competition issues can be transparent, and be seen
to be transparent, in the way the organisation works.
(Mr Bolt) I was only going to say, in a sense, we
are the only body that is concerned only with content, because
my fellow broadcasting regulators have other things as well. And
I would not favour a separate content regulator because, at the
high level, quite frequently, the two things are interrelated,
as colleagues have said, content does drive the economics, and
the economics very much affect the content, and you are not going
to make some of the difficult choices that Patricia has mentioned
go away by having two separate bodies championing them. So I think
at the high level it has to be merged. The art of it, as Tony
was suggesting, is making sure that the stuff that people should
be allowed, basically, very much to get on with, within that overall
structure, they can get on with; that is what we want.
433. Let us just shift to content. The Chairman
has pointed out, rather interestingly, in relation to the BAFTA
awards, how really it has been your organisation, Mr Bolt, which
may have to regulate what has happened with the BBC output, rather
than the BBC themselves, who have chosen, it would seem, rather
to ignore what happened with the BAFTA affair. I just want to
ask really, generally, how comfortable are you all with the idea
that the BBC is going to be semi-detached from OFCOM; anyone?
(Mr Stoller) The Radio Authority's view is clear.
We regard it as axiomatic that if you are a major player in a
competitive market you cannot also be a regulator. And it seems
to us that leaving the BBC wholly outside the purview of OFCOM
would be as strange as leaving BT outside it. The question is
not, it seems to us, is the BBC wholly in or wholly out, but where
along that spectrum of possible involvement OFCOM relates to the
BBC. The specific example you choose, it does seem to us wrong
that the BBC is judge and jury in its own case, on complaints
about its content, and that we know, from a radio point of view,
that we have had to deal with taste and decency issues firmly,
with significant sanctions, with the commercial radio companies,
they have taken that, and, by and large, this is not currently
a problem for us. It is very difficult for them to see the same
material, or worse material, being broadcast by the BBC when the
same sanctions cannot be applied. So it seems to us, at the Radio
Authority, that you have to identify certain areas where the BBC
needs to come within OFCOM's purview, and which those are essentially
is the judgement that I think Parliament would have to make.
434. Before you go on, can I just comment upon
that reply that you made. A: I have had a letter this morning
from an extremely prominent, a very, very well-known participant
in the media, formerly in the press, now in radio, who said that
if he had broadcast the remarks that Ali G did, at 9 am last Monday,
then he would have been severely disciplined and could have been
fined, I think, up to 3 per cent of his annual turnover. How tolerable
is it that the BBC can broadcast material which, if a commercial
broadcaster transmitted it, would be subject to severe penalty,
and simply decide that it cannot be bothered doing anything about
(Mr Stoller) Would you allow me just to shade off
slightly from dealing with the specific Ali G broadcast?
435. Yes. I did not want to talk about specific
broadcasts, I wanted to talk about what it stands for, in terms
(Mr Stoller) It seems to us completely unacceptable,
and it seems to our industry unacceptable, that there should be
different standards. And, looking at the Communications White
Paper and the tasks that are to be laid upon OFCOM, it seems that
there would be indeed an attempt to move towards imposing common
standards, particularly in these very difficult but salient areas
of taste and decency and what is acceptable at what time; but
the present arrangement is highly unsatisfactory.
436. The second question I put to you is, following
your most recent answer to Mr Fabricant, what leads you to take
the view that there is a viable argument for not including the
BBC wholly within a regulatory system that is going to affect
every other broadcaster in the country?
(Mr Stoller) My own view is that the BBC's inclusion
within OFCOM, from the area that we have an interest and a legitimate
position, is to ensure that their conduct and their activity in
a competitive sense is fairly handled, that where there are issues
such as complaints, final judgements on those complaints, that
should fall to OFCOM. What I have heard is a suggestion that,
for example, the BBC Governors should be replaced by OFCOM; that
seems to me to be unnecessarily far along one end of the spectrum.
How the BBC handles its own internal governance and management,
I think, is very properly a matter for the BBC, and I would be
inclined to be a defender of that; the question is, what applies
where the BBC moves into common areas. And, again, if I may throw
it back, that feels to me to be exactly a judgement for Parliament
to make about where along that spectrum actually OFCOM should
437. Before I cease pursuing this line of argument,
but I think it is a very important issue before the country, let
me draw your attention to the case, that happened a few years
ago, of the lottery programme on the BBC, called the Big Ticket,
in which there were those of us who alleged that it was simply
an advertising programme for a new form of Camelot scratch cards,
and that therefore it was in breach of the BBC Charter. I was
derided and assailed for saying that in the House of Commons,
and then, very belatedly, the BBC Board of Governors, having agreed
that this should be done, they came back to the view that I had
held, that it was wrong, that it breached the Charter and it should
not have been done. So if you have got such a hesitant group of
people in charge of regulating the country's biggest broadcaster,
and the one for which we all have to pay a tax, whether we want
to or not, is that a satisfactory state of affairs?
(Mr Stoller) I am entirely clear that the BBC Governors
should be regarded as the governors, rather than the regulators,
of the BBC.
438. Then who is the regulator?
(Mr Stoller) In that instance, which you cite, that
should be a matter that would fall to OFCOM.
439. So that is your answer to quis custodiet
(Mr Stoller) It is. I do not know, however, whether
colleagues would like to come in, because this is a matter we
have discussed among ourselves as well.
(Mr Bolt) It would be mine as well, and indeed the
Commission's; and, I think, to be fair to the White Paper proposals,
they do envisage the BBC coming under OFCOM in many regards, including
taste and decency, although the interesting question remains open,
that we have implicitly been discussing, what sanctions will be
available to OFCOM in enforcing that, on taste and decency grounds.
To answer your rhetorical question, I think the only argument
which has ever struck me as being plausible relates to some fear
that OFCOM will have commercial concerns uppermost in its mind,
and therefore will deliberately seek to constrain what the BBC
does. And, as we said in our written BSC evidence, we feel the
answer to that really is for Parliament to determine the broad
outlines for the Governors to try to interpret that remit, but
for OFCOM to regulate how well the BBC actually is performing,
and, for most purposes, to treat it like any other broadcaster.