A response from mediawatch-uk to the public consultation issued by the Department of Culture, Media and Sport

DCMS News release 11/3/2009 here

We appreciate the opportunity to respond to this important consultation, which, ultimately, will affect everyone who watches television.

INTRODUCTION

We note that the Directive imposes "certain minimum standards on scheduled television services" but it would have been helpful if these minimum standards could have been set out in the consultation.

We believe it is a very serious flaw in the Directive that Member States cannot impose standards on broadcasts that originate from other EU Member States.  It is not clear how any standards can be imposed in these circumstances.  What incentive is there for member states to retain or maintain ‘high standards' when this aspiration can be undermined by ‘low standards' in programmes coming from other member states, especially when so much emphasis is placed on a ‘single market' in broadcasting services across the EU.

It would have been very helpful if the consultation paper had also included details of the EU Law that "guarantees minimum content standards". (4)

EXTENDED SCOPE

We believe that the scope of the AVMS Directive should be extended to include all on-demand services. (6)  We really do wonder why these services were omitted from the provisions of the Communications Act 2003 in the first place.  Accordingly, we agree that on-demand services should be subject to the same regulatory regime as all other television broadcast services.  This makes perfect sense.

THREE TIERS OF REGULATION

We accept that certain "minimum standards" should apply to advertising content but, again, it would have been far more helpful if these ‘minimum standards' had been set out in the consultation paper.

In passing, we very much agree with the remarks about standards made by the Rt Hon Andy Burnham, MP, the Secretary of State, in June when speaking to the Convergence Think Tank. 

He said: "What do I mean by standards? I'm thinking of guiding principles like impartiality and accuracy in TV and radio news, the integrity of programme making and the 9pm watershed, protecting against harm and offence, that have stood us in good stead for years. These are principles that have stood us in good stead over the years.

"Why are these important? Standards are what have kept British broadcasting valued, celebrated and trusted in the UK and around the world. And I think they are becoming more, not less, important to traditional print and broadcast media as we look to the future.

"Being trusted has never been more important. People are still relying heavily on TV news - despite the explosion in information sources. And trust is what people value most, particularly in news.

"People, both at home and abroad,  look to British programming because they understand that it is produced to high standards, meaning they know they can trust what they are seeing and hearing." 

We agree with the existing prohibition on "product placement" advertising although we question the purpose of such a prohibition if member states have the option to choose whether or not to adopt it.  We can predict that in a "single market" serious anomalies are bound to arise causing real problems for those who choose to adopt the prohibition.  We also wonder what "exceptions" are likely to be invoked. (9)

We agree with the aspiration to protect minors but, given the availability of some programmes to be downloaded anytime, anywhere we do wonder how the AVMS directive will "ensure" protection for children in normal or any circumstances. (10)(11)  Clear proposals on this question really must be made by the Government in adopting this Directive.

We also agree that there should be a "right of reply to television broadcasters" but, again, clear proposals on a workable mechanism to provide this must be made also in an "equivalent remedy" which should include a Complaints procedure.

RIGHT OF REPLY IN TELEVISION BROADCASTING

Article 23

1. Without prejudice to other provisions adopted by the Member States under civil, administrative or criminal law, any natural or legal person, regardless of nationality, whose legitimate interests, in particular reputation and good name, have been damaged by an assertion of incorrect facts in a television programme must have a right of reply or equivalent remedies. Member States shall ensure that the actual exercise of the right of reply or equivalent remedies is not hindered by the imposition of unreasonable terms or conditions.

The reply shall be transmitted within a reasonable time subsequent to the request being substantiated and at a time and in a manner appropriate to the broadcast to which the request refers.

2. A right of reply or equivalent remedies shall exist in relation to all broadcasters under the jurisdiction of a Member State.

3. Member States shall adopt the measures needed to establish the right of reply or the equivalent remedies and shall determine the procedure to be followed for the exercise thereof. In particular, they shall ensure that a sufficient time span is allowed and that the procedures are such that the right or equivalent remedies can be exercised appropriately by natural or legal persons resident or established in other Member States.

4. An application for exercise of the right of reply or the equivalent remedies may be rejected if such a reply is not justified according to the conditions laid down in paragraph 1, would involve a punishable act, would render the broadcaster liable to civil law proceedings or would transgress standards of public decency.

5. Provision shall be made for procedures whereby disputes as to the exercise of the right of reply or the equivalent remedies can be subject to judicial review.

It is essential that full contact information is readily accessible to everyone.  We believe it is also essential for all Member States to provide an effective Complaints Procedure for members of the public who may have a grievance about something broadcast. 

Since Ofcom has an established system for receiving and assessing complaints this seems to us to be another compelling reason to give responsibility for managing the right of reply to the regulator. This would obviate the need for another "contact committee".

We understand that in the present economic climate there is a desire among commercial broadcasters to increase the amount of advertising but we believe it would not be in the public interest to increase the length of time available to advertisers.  Excessive advertising breaks could very well be counter-productive and drive viewers away from commercial television because their viewing enjoyment is being spoilt.  We are aware that Ofcom has recently revised the rules governing advertising breaks and extended the limit from 7 to 12 minutes per hour.

SCOPE

We can understand that when the Television Without Frontiers Directive was first drawn up in 1989 video-on-demand services were not included.  The technology to enable this was not then widely available but the development and intensive marketing of low cost, high capacity computers, combined with the intensive marketing of the software and widespread take up of Broadband services, has made video-on-demand easy for many people. 

Now that downloading from the Internet has become commonplace, and a facility offered by all major TV providers, we believe that regulation must take this into account. We believe it is not enough to rely on voluntary agreements determined by the industry on such an important matter as this. 

Since the AVMS Directive requires "EU regulatory standards" to be applied we can see no good reason why responsibility for regulation should not be given to Ofcom and that the Government should expect Ofcom to "impose minimum regulatory standards" as it does already for free-to-air transmissions.

Accordingly, we believe the UK Government should proceed without delay to bring forward legislation to "transpose the definition of on-demand audiovisual media services into UK law".  Moreover, the legislation should give primary responsibility for regulation of these services to Ofcom.  Special emphasis should be given to incorporating Article 22 of the Directive into the new Communications Act.

PROTECTION OF MINORS IN TELEVISION BROADCASTING

Article 22

1. Member States shall take appropriate measures to ensure that television broadcasts by broadcasters under their jurisdiction do not include any programmes which might seriously impair the physical, mental or moral development of minors, in particular programmes that involve pornography or gratuitous violence.

2. The measures provided for in paragraph 1 shall also extend to other programmes which are likely to impair the physical, mental or moral development of minors, except where it is ensured, by selecting the time of the broadcast or by any technical measure, that minors in the area of transmission will not normally hear or see such broadcasts.

3. Furthermore, when such programmes are broadcast in unencoded form Member States shall ensure that they are preceded by an acoustic warning or are identified by the presence of a visual symbol throughout their duration.

Since there is no mention of the "watershed" we assume that the AVMS Directive at last recognises, although well understood in Britain, that it has become outmoded by video-on-demand services.  It is all the more important therefore that Article 22 is interpreted very generously by broadcasters if their duty to protect minors, as set out in Article 22 (1) is to be properly fulfilled.

Moreover, the Government should take immediate steps to ascertain from all broadcasters how they propose to ensure that video-on-demand programmes, accessible anytime, anywhere, do not "involve pornography or gratuitous violence".  In this regard it should not be a justification to appeal to definitions of these terms reached in court proceedings. 

The regulation of broadcasting imposes a much lower test of "generally accepted standards" which ought to be determined by a combination of public opinion polls, analysis of complaints and frequent analysis of public attitudes.  We refer here to Ofcom's own research, set out in the Communications Market reports, which for the four years to 2007 found that the majority believe there of too much violence and swearing on TV. 

Moreover, an opinion poll conducted for Radio Times in May 2008 found that 95 per cent think the watershed is necessary, 74 per cent think there is too much violence, 69 per cent too much swearing, 52 per cent too much sex and 40 per cent too much nudity on television.

So far as we are aware no broadcaster has yet undertaken a review of output let alone undertaken any change of programme policy in the light of these findings.  It is evident from the programmes transmitted that some broadcasters, such as Virgin 1 and Fiver, have no regard for these findings and continue to defy this part of the Directive.

DEFINING ON-DEMAND SERVICES IN DOMESTIC LAW

We welcome the Government's declared intention to "translate the definition of on-demand audiovisual media services into UK law".  We also welcome the intention "to create and define the concept of an on-demand programme service".

However, before proceeding to these services being "mediated", some ground rules must be set out (by the Government or by Ofcom) to ensure that "editorial responsibility" is exercised in the public interest rather than in the interests of broadcasters.  It is not enough to propose "effective control" without setting out what the Government intends to achieve and how to achieve it.

CONCLUSIONS

We recall that the Government's intention in reforming communications regulation was to overcome public confusion by establishing Ofcom as a streamlined communications regulator with a "light touch".  To avoid public confusion clear proposals relating to the AVMS Directive must be set out and we believe this is more necessary now than ever before. 

As media accessibility becomes ever more complex with ever more choices of platforms it is essential that regulation becomes simple, straightforward, high profile, easy to access and understand with results that favour the interests of the public rather than the interests of the industry.

October 2008

CLARIFICATION

Since sending in this submission to the DCMS we have been advised that the minimum content standards can be found in Chapters 11a and 11b of the AVMS Directive.

Chapter 11a contains rules which apply to all audiovisual media services (i.e.: television broadcasting as well as VOD services).  Chapter 11b contains rules which apply to on-demand services only.  (Article 22 which you mention, applies only to television broadcasting.)

Under the provisions in Chapters 11a and 11b, providers of video-on-demand services must (among other things):

Make available to viewers relevant information about how they can be contacted and how they are regulated (Article 3a);

Not make available material which contains incitement to hatred on grounds of race, sex, religion or nationality (Article 3b);

Comply with rules on product placement (Article 3g);

Take steps to ensure that minors are protected from material which might cause them serious harm (e.g. through the use of PIN numbers to access such services) (Article 3h);

The UK and other EU Member States have until 19 December 2009 to implement the Directive.  It will be for the body which co-regulates VOD services to ensure these minimum content standards are contained within their codes and guidance (with appropriate guidance and support from the Government and Ofcom).