Supplementary memorandum submitted by
mediawatch-uk welcomes the publication of the
Government's Communications Bill and the opportunity the viewing
public have been given, through the consultation process, to shape
the final Act of Parliament.
Following publication of the Bill most press
attention focused on the proposals to relax ownership rules permitting
mergers and acquisitions from abroad. This diverted attention
away from the many other important aspects of the draft Bill.
The concerns of the viewing public about the damaging influence
of some programming have been low on the agenda and have, so far,
not been considered directly by the Joint Select Committee currently
scrutinising the Bill.
mediawatch-uk believes that the Communications
Bill, with 259 clauses, does little to shift the balance of power
away from those who currently own and run the electronic media.
It is evident from the draft Bill that the thinking behind it
gives priority to the interests of the industry rather than to
the viewing, and listening, public. Its emphasis on "light
touch" and "self-regulation" indicate that market
forces and the scramble for ratings and audience share will be
the overriding concerns.
mediawatch-uk has already sent to every Member
of Parliament and to the Joint Committee a copy of the Briefing
Paper "A Fair Deal for Stakeholders" in the hope that
the recommendations we have made to strengthen the position of
viewers and listeners will be taken into account.
Of crucial importance in the structure of the
new regulator, OFCOM, will be the Content Board and its remit
and make up. Its role, described in the Bill, will include "securing
a wide range of broadcasting services" will "ensuring
the application of generally accepted standards." The Board
will advise on "minimum content standards and accuracy and
impartiality standards and the approval of codes".
mediawatch-uk has always believed that the Programme
Codes and Producers Guidelines ought to assume primary importance
in any regulatory scheme because they provide the framework within
which programmes should be produced and assessed. The contrived
ambiguity of the present codes, plus the fact that they are interpreted
only by the broadcasting authorities, has led to the rapid and
incremental rise in the presence of violence, obscene language
and explicit sexual conduct on television.
Ever since the introduction of Independent Television
in 1954 it has always been a statutory requirement that those
in authority should ensure/secure that programmes "do not
offend good taste or decency or offend public feeling".
The Communications Bill replaces this with new
provisions that are open to even wider interpretation. Clause
212 of the Bill states that a duty of OFCOM will be to set standards
for the content of television and radio services which shall be
contained in a code.
Among other things the code will set objectives
with regard to the "protection of minors" and the "inclusion
of offensive and harmful material". Consideration will be
given to the degree of harm or offence and the likely size, composition
and expectation of the audience.
These provisions, which have their origin in
a European Union Audiovisual Policy document issued in 1998, are
clearly calculated to enable justifiable criticism of offensive
programme content to be easily dismissed. In this scheme the viewer
or listener, aided by advance programme information, will be expected
to avoid the programmes likely to offend and the broadcasters'
responsibility not to cause offence is removed. Interpretation
of the statute and formulation of the code will rest with the
regulator. By removing previous obligations it is difficult to
see how the Secretary of State's ambition to "strengthen
content regulation" will be achieved.
People who are concerned about bad taste and
indecency on television can look forward to no real improvement
as a result of this Billunless it is substantially amended
Content and Consumers
mediawatch-uk agrees with those who have criticised
the draft Bill for not delineating satisfactorily the respective
roles and remits of the Content Board and the Consumer Panel.
We welcome the establishment of both but believe it is essential
that once OFCOM becomes operational the public know from the outset
whether the Board or the Panel is the appropriate point of contact
for their concern.
The Content Board should be the point of contact
for any comment about any broadcast programme on television or
radio. Moreover, in order to make this clear it would be helpful
to call it the Content Standards Board. The Board should have
a high public profile with its own well-publicised address, telephone
number and e-mail address.
OFCOM should require that this public information
should be regularly transmitted, at least once a week at varying
times and days, on all licensed television and radio services.
It should be done in a way that will encourage the viewing and
listening public to communicate with the broadcasters. It is important,
and in the public interest, that these provisions are required
in the Bill.
The Consumer Panel should deal solely with consumer
issues, like, for example, reception, pricing, advertising, marketing
and so on. The Consumer Panel should also have a high public profile
with its own address, telephone number and e-mail address.
212 OFCOM's standards code.
mediawatch-uk welcomes the draft Bill's provision
for a standards code and the duty for OFCOM to set ". . .
such standards for the content of programmes . . .". We welcome
also the duty to "secure the standards objectives".
However, experience from the past shows that
similar statutory duties laid upon the broadcasters have failed
with regard to securing that programmes "do not offend against
good taste or decency, incite to crime or to lead to disorder
or offend public feeling". (Broadcasting Act 1996, Clause
Moreover, the task of drawing up a Programme
Code, although fulfilled by the ITC and the BBC, the reviews and
revisions of recent years have tended to accommodate more and
more programming and imagery that seems to conflict with the requirements
of the Broadcasting Act above.
For example, the April 2001 version of the ITC
Programme Code leaves out the requirement, included in the January
1998, version, in section 1.6 on Sex and Nudity, that "The
portrayal of sexual behaviour, and of nudity, needs to be defensible
in context and presented with tact and discretion".
The fact that in recent years the ITC has granted
licenses to a number of soft pornography channels suggests that
the Code has been adapted to conform to programmes rather than
programmes made to conform to the Code.
The presence of programmes about pornography
and the sex industry in general, notably on Channel 4 TV and Channel
5 TV in recent years, indicates a lamentable dereliction of duty
on the part of the ITC in doing nothing to stop or reverse the
trend. The fact that such important decisions on programme content
have taken place without any public or parliamentary scrutiny
is also a matter of concern substantiating the feeling felt by
many that broadcasters have their own agenda.
mediawatch-uk believes that a detailed and well-defined
Programme Code is the key to the maintenance of standards. Experience
shows that ambiguity, at this level, whether contrived or not,
is not thy way to secure the high standards in television programming
that audiences expect.
OFCOM must give priority to the task drawing
up a Programme Code and we welcome the Secretary of State's statement
in August 2001 that a common code is being contemplated. This
makes good sense and would dispel the confusion arising from the
fact that there are three Codes: an ITC Programme Code, BBC Producers
Guidelines and a Broadcasting Standards Commission Code of Guidance.
OFCOM's statutory task of setting standards
needs to be based on some principles and these should represent
a departure from the vague and imprecise terms of the present
Above all the code should recognise the power
and influence of television in shaping attitudes and behaviour.
The latest scientific research published 29 March 2002 in the
American SCIENCE magazine (Vol. 295) concludes that viewing violence
increases aggressive behaviour. Accordingly, OFCOM's Code should
at least draw attention to scientific research and require producers
to avoid perpetuating antisocial behaviour arising from violence
mediawatch-uk welcomes the draft Bill's proposals
for the standard's objectives (212 (2))
2 (a) Although there is a requirement that "persons
under the age of eighteen are protected" we believe it would
be helpful to state what they are to be "protected"
from and what means are proposed to achieve this. Although there
is no specific mention of the so-called "watershed"
we believe that constraints of this sort have lost their meaning
and force in the 24-hour, multi-channel, television environment.
The fact that a very high proportion of this age group now have
their own television viewing equipment, which they tend to view
without supervision, renders the "watershed" invalid.
If it is intended to protect under 18 year olds from unsuitable
imagery it would assist understanding if it were stated what this
2 (b) This standards objective has been lifted
from existing legislation and mediawatch-uk agrees that "material
likely to encourage or to incite any crime or disorder is not
included . . .". However, we believe that the word "incite"
should be clarified as to what constitutes an incitement.
mediawatch-uk believes that the constant portrayal
in film and drama of crime and disorder, often in a glamorised
and stylised fashion, could be said to be an incitement. Indeed,
the British Board of Film Classification in its Annual Report
of 1996/97 stated "America has the highest crime rates in
the developed world and produces the most violent entertainment.
The most popular stars are the macho heroes who use violence successfully
and therefore demonstrate and validate its use . . . It (violence)
has also become far more pervasive, since it occurs in a much
larger proportion of films, particularly those targeted at a young
The Government is particularly concerned about
the "national emergency" of crime and disorder among
the young. New punitive measures have been brought into being
by the Home Secretary in an attempt to deal with this growing
mediawatch-uk believes that television, which
screens numerous films portraying violence each year, contributes
significantly to "yob culture" and the overall impact
of the fictional portrayal of crime and violence ought to be regarded
as an incitement. Accordingly, OFCOM's interpretation of what
"incite" means ought to be much broader and this should
be reflected in the code.
2 (c) mediawatch-uk agrees that newsand
current affairsshould be presented with due impartiality.
We believe that it is especially important that impartiality is
evident in individual programmes rather than the current practice
of being impartial over time, for example, in a series. The increasing
number of channels means that the patterns of viewing have become
much less consistent and this practice should be acknowledged
and recognised in the proposals.
2 (d) mediawatch-uk agrees that news should
be reported with due accuracy. OFCOM should, therefore, have the
capability of determining "due accuracy" and have powers
to take action where inaccuracies are evident.
2 (e) mediawatch-uk agrees that a "proper
degree of responsibility is exercised with respect to the content
of programmes which are religious programmes". However, we
believe that the "proper degree of responsibility" needs
to be clarified. What is a "proper degree" and, in this
context, what is "responsibility"? Has it to do with
false claims or promises or inappropriate fund raising or more
to do with theology and/or belief and practice?
2 (f) mediawatch-uk notes that the draft bill
abandons that requirement of OFCOM to "secure that programmes
do not offend good taste and decency . . . or offend public feeling"
as set out in current legislation.
The proposal to apply "generally accepted
standards" causes us more concern than anything else in this
section. It begs the question: "What are generally accepted
standards" and how are they to be determined? And by whom
are these standards to be accepted?
In order to determine this requirement a very
great deal of new research is going to be needed to ascertain
what is "generally accepted". This would suggest that
researchers at the media faculties of certain universities will
kept in work for a very long time indeed! OFCOM can be certain
that very many people are concerned about what is transmitted
now and this indicates a serious failure of the present regulatory
regime that OFCOM must correct rather than incorporate into the
new regime. The trust that many people have in the regulators
that their best interests will be served has been betrayed. The
interests of the industry are the highest priority. It is very
rare for any broadcaster to admit an error of judgement with regard
to actual content of any programme. Errors with regard to timing
and scheduling are less rare as the Complaints Bulletins show.
Curiously, this clause proposes to "provide
adequate protection for members of the public from the inclusion
in such services of offensive and harmful material". mediawatch-uk
notes the emphasis here on protection from the inclusion of offensive
and harmful material. This seems to imply that offensive and harmful
material is legitimate provided there is means of protection from
it. The onus here rests with the viewing and listening public
to avoid offensive and harmful material rather than placing the
onus on the broadcaster to stop transmitting it. It would be more
in keeping with the role of an effective regulator, and in the
public interest, if this clause required OFCOM to secure the EXCLUSION
of offensive and harmful material. It would also aid understanding
if the terms "offensive and harmful" could be defined.
It would also be helpful if the "and" is replaced with
"and/or" because offensive may not be harmful and harmful
may not be offensive.
Many people are offended by bad language on
television and radio whether or not it is gratuitous or included
on the grounds of "realism". Such language undermines
educational standards and communication skills and it could be
said to be harmful in so far as it is another aspect of aggressive
behaviour. It is well known that continuing profanity in programmes
also causes deep offence and hurt to many people. This could also
be said to be harmful and offensive.
The latest research, published this year by
the National Foundation for Family Research in Canada, concludes
that pornography too causes several behavioural, psychological
and social problems. It encourages a deviant attitude towards
intimate relationships such as perceptions of sexual dominance,
submissiveness and sex role stereotyping or viewing persons as
sexual objects. Sexual aggressiveness, sexually hostile and violent
problems that are linked to pornography.
Taking research into account, the licensing
of pornographic channels and the consequent growth of pornographic
programming is offensive and harmful and therefore OFCOM must
take a robust regulatory attitude towards such material.
2 (g) mediawatch-uk agrees that unsuitable advertising
is prevented. However, the notion of "unsuitable" needs
clarification and definition. The present secretive process by
which television advertising is approved by the Television Advertising
Clearance Centre should be open to public scrutiny. It is not
good enough for regulation to be exercised after transmission
in the light of adverse public response.
OFCOM must involve the Consumer Panel in drawing
up a Code of Advertising Standards and Practice and the Consumers
Panel should in future have a role in the process by which advertisements
reach the screen. We would suggest the present ITC code on advertising
is a good starting point although Clause 13 on taste and decency
and respect for human dignity should be more rigorously enforced.
The revisions removing prohibitions introduced in May 2000 should
2 (h) mediawatch-uk believes that "unsuitable
sponsorship" could be better defined.
2 (i) mediawatch-uk agrees that there should
be "no undue discrimination" but that this could be
2 (j) mediawatch-uk agrees with the proposal
that subliminally conveying messages be prohibited.
(4) (a) mediawatch-uk believes, from past experience,
that this clause relies too much on the discretion of OFCOM. The
"degree of harm or offence likely to be caused" is indeterminate
and no parameters are set in the Bill. This is a serious weakness.
At the present time the Broadcasting Standards
Commission is required to consider every complaint within its
statutory remit. In this scheme the number of complaints received
has no bearing on whether the complaints are considered. By requiring
OFCOM to assess "the degree" it will be legitimate for
no complaints to be considered simply because there may be few
by comparison to, say, the number of viewers. Moreover, without
some definition of "harm or offence" it is impossible
to measure any "degree". It is imperative that this
clause is clarified in the public interest but should it stand
it should be complemented by requirements for OFCOM to actively
canvas public response to programmes generally.
mediawatch-uk believes that all television and
radio services should be required to regularly and frequently
advertise the address, telephone number and e-mail address of
OFCOM or the "Content Board" so as to actively encourage
public participation. Only in this way can there by any accurate
assessment of "degree of harm or offence".
4 (b) The "degree of harm or offence"
should not depend upon "the likely size and composition of
the potential audience". This is a recipe for a free-for-all
in which standards will not be "set" objectively but
will be variable according to a number of irrelevant factors not
related to actual programme content.
4 (c) The "likely expectation of the audiences"
seems to further remove the role of OFCOM to regulate harmful
or offensive programme content placing the onus for avoiding it
on to the viewer or listener. Equally, this clause depends for
its efficacy on advance programme information and the necessity
for viewers and listeners to make themselves aware of it.
This is another means by which responsibility
for programme content is simply devolved to viewers and listeners
and is not what ought to be expected of a scheme of regulation.
4 (d) This clause provides a rationale for OFCOM's
role in promoting "media literacy" so that viewers and
listeners are enabled to make informed choices. These clauses
suggest that "light touch" and "self regulation"mean
respectively that OFCOM will have little to do with enforcing
any standards and "self regulation" applies to viewers
and listeners rather than to broadcasters.
4 (e) the intention of this clause requires
clarification in respect of the circumstances in which a change
of the application of standards is necessary.
4 (f) mediawatch-uk agrees that the independence
of editorial control is safeguarded but within the limits set
by the code.
mediawatch-uk welcomes the requirements set
out in Sections 217, 218, 219, 220 and 221.
With regard to monitoring programmes we believe
that a well-defined Programme Code is essential if this task is
to be conducted effectively.
We draw attention here to our proposal, set
out in "A Fair Deal For Stakeholders" for a Compliance
Officer to be required for every licensed television or radio
service. In a multi-channel environment a single regulator cannot
possibly monitor the output of every channel. The shift towards
"self regulation" by broadcasters should not be limited
solely to the proposed triennial performance review by OFCOM.
There will surely be times when monitoring will give rise to intervention
and the Compliance Officer should be the means through which accountability
mediawatch-uk concludes its submission to the
Joint Select Committee at this point owing to the limited time
available to present evidence.