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APPENDIX 10
Memorandum submitted by the Broadcasting
Standards Commission
GENERAL POINTS
1. The Broadcasting Standards Commission
welcomes both the policy approaches set out in the White Paper
as well as the broad thrust of its detailed proposals. In particular,
the Commission is pleased by the continued commitment to the importance
of the "widest possible access to a choice of diverse communications
services of the highest quality", including strong public
service broadcasters, and the recognition of the need to go on
safeguarding "the interests of citizens and consumers".
2. The Commission supports the intention
to make the UK home to "the most dynamic and competitive
communications and media market in the world" (1.2.1) balanced
by the desire to have "the most trusted and reliable safeguards
for citizens and consumers" (1.2.12).
3. The Commission continues to stress that
access and affordability are crucial tests to meet the White Paper's
own objectives because take-up may not be as fast as hoped.
4. The Commission also supports the intention
to achieve "must carry", "must provide" and
"due prominence" provisions for public service broadcasting
wherever practicable. (Chapter 3).
5. The Commission would also wish to underline
the importance of the diversity of ownership across the media
and plurality of voice within them, as well as fair representation,
as crucial to a healthy media ecology. In the Commission's view,
this is not something to be left simply to Competition Law (see
the recent report of the German Commission on Concentration in
the Media). Any review of the ownership rules relating to commercial
television and radio, and the press should keep these basic principles
as the test, using a calculation of "share of voice".
At the very least, it should not be possible for any one company
to own both Channel 3 and Channel 5 (Chapter 4), or for the number
of commercial radio licences held in any one area to exceed five.
6. The Commission also acknowledges the
need to rationalise regulation by providing a body which can have
"the vision to see across converging industries and help
build a coherent and flexible system. . . combining better representation
of consumers and citizens and a careful balance between law, formal
regulation and self-regulation" (1.3.6).
7. The Commission will work with other regulatory
bodies, within the limits of its existing statutory responsibilities,
to avoid unnecessary duplication and reduce the potential for
double jeopardy prior to the establishment of OFCOM. Some of this
is already in place with its concordat with the Radio Authority,
and joint research activities with the ITC and others. (Chapter
8)
SECURING QUALITY
8. The Commission is pleased to see the
key role that public service provision will have in the digital
future. The Commission also welcomes the three-tier approach to
the regulation of broadcasting content, which is consistent with
our proposals to the White Paper process designed to encourage
greater responsibility on the part of content providers.
9. The Commission agrees that the BBC, S4C
and Channel 4 should remain as the principal public service broadcasters,
operating as public corporations, but it also supports the continuation
of Channels 3 and 5's contribution, albeit in a modified form
(5.4).
10. However, 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
basic codes for the first tier (5.6.1) apply to all broadcasters,
including the BBC, these include the impartiality requirement.
It would be for the Governors to ensure compliance but it should
be for OFCOM to conclude, on appeal, whether the requirements
had been satisfactorily met. Equally, in the third tier, if OFCOM
is to have the responsibility of ensuring cross industry issues
of public service broadcasting provision and performance (5.8.4),
the Governors should "have regard" to OFCOM's views
rather than "naturally want to consider".
COMPLAINT HANDLING
11. The Commission understands the logic
of providers being given the opportunity to deal with complaints
(5.6.4). It matches the concept of greater self-regulation that
underpins the White Paper's approach. However, the Commission's
own experience of the handling of both standards and fairness
and privacy complaints, and the views of complainants themselves,
indicate that there is strong public support and value for a complaint
handling system which is seen to be independent of the editorial
process and which can provide efficient, judicious and timely
redress.
12. Content complaints are generally of
a different order to those of service delivery. There is a degree
of personal involvement and investment, as well as a sense of
rights denied with fairness and privacy complaints, which is not
the same as issues of value for money or delivery.
13. To argue that to move to a provider
based service in the first instance may not command general public
support because it will not be viewed as sufficiently at arm's
length, may add to the time taken to achieve redress and will
be inconsistent in its results. It may be thought to be a lessening
of present processes of accountability and transparency.
14. Complaints are also an important indicator
of audience concerns. OFCOM will need information from the complaint
process to inform its own work as well as the power to impose
sanctions, if the issue is sufficiently serious, even if the provider
has dealt with the complaint.
15. At the very least, OFCOM will need the
power to be able to reassure itself that whatever complaint mechanism
is put in place, it must command the confidence of complainants
and broadcasters by its visible independence and fairness, as
well as providing fast and effective relief within strict time
limits.
16. Sanctions will range from publication,
to a stop on further transmission, to a formal warning of a fine.
In the interests of a level playing field, this should apply to
all broadcasters. OFCOM will also require powers to require tapes
and other materials from the BBC as well as licensed services,
as well as the power to summon broadcasters and conduct hearings
much as the Commission has at present in Part 5 of the Broadcasting
Act 1996.
17. The Commission also believes that it
is important to fairness and privacy cases, as well as other significant
content complaints, for the citizen dimension to be reflected
in the decision-making process by citizen members of a content
committee of OFCOM operating under delegated powers. Such lay
involvement has been a strong feature of content regulation for
a number of years and there is every indication that it has public
confidence. (See Annex)
PUBLIC SERVICE
OBLIGATIONS
18. The Commission agrees that the new regulatory
regime will need flexibility to consider any variation of the
obligations of Channels 3 and 5 (5.6.10 and 11). These are essentially
judgements about market conditions and should be part of OFCOM's
remit assisted by appropriate research.
19. The Commission takes the view that the
third tier obligations should be the matter of promises of performance
based on the commissioning and scheduling cycle. The promises
would be an interpretation of how each public service broadcaster
intended to meet their high-level public service obligations as
defined in their licence for the period ahead, bearing in mind
developments in audience expectations. OFCOM would be available
to give guidance or advice, if required. But its statutory duty
would be to comment on performance and, if necessary apply sanctions
for non-compliance.
SAFEGUARDING THE
CITIZEN
20. Again, the Commission welcomes the intention
to establish high level principles and objectives for the regulation
of content, based on the differences between services and audience
expectations of them (6.1). The Commission is content with the
elaboration set out in 6.3.6 and 6.3.7. but it would offer two
comments. The first is that the reference to "accepted community
standards" needs to be clear in legislation to mean the standards
widely accepted within society, ie what is acceptable to the majority
rather than a minority, however defined. Second, the Commission
is of the view that accuracy and impartiality are essential rather
than "desirable".
21. Based on its own experience, the Commission
also endorses the White Paper's proposals for research and media
literacy.
22. In order to establish what those acceptable
standards might be, and the differential expectations of the various
delivery platforms, OFCOM's research programme will need to be
both continuous and widespread (6.3). Recent research for the
Commission suggests that audiences feel both confused and disenfranchised
by some of the changes, while understanding and welcoming the
choice being offered to them.
23. The Commission suggests that a three
stranded-programme of research should be undertaken on audience
and consumer expectations. The three strands would be:
(i) Monitoring and validation (a continuous
programme of research):
— To track changes and the sensitivities
of the audience, as well as the shifting preferences of the consumer
— To track and anticipate changes in
the marketplace and their impact on the consumer
— To monitor the changes created in
the broadcasting environment by the different opportunities offered
by the various delivery platforms
— To validate diversity measures, some
examples of which are outlined in the White Paper
(ii) Community standards (including technical
standards):
— Definition of the standards and the
changes that occur over time
— Definition of standards that apply
to certain population groups, especially as niche programme opportunities
become more widespread
— Work on the protection of children
and vulnerable groups (eg with regard to privacy)
— Consumer rights and protection devices
— Development of tools to co-regulate/self-regulate
(iii) Access (including awareness raising
campaigns, media literacy across broad population groups):
— Track access by defined groups
— Work with other organisations/facilitate
education and training possibilities (hardware ad content)
— Work with other organisations/facilitate
awareness and information campaigns, especially with regard to
tools available
— Work with other organisations/facilitate
media literacy projects, with especial regard to personal/familial
regulation.
24. While the Commission welcomes the endorsement
of citizen's juries and panels it would hope that appropriate
methodologies could be chosen to answer specific research needs.
25. There may be some overlap with carriage
issues as they impact on audience expectations.
26. Ratings and filtering systems will also
need to be built into the research requirement identified in 5.6.3
and 6.4.1-3.
27. We agree that fairness and privacy complaints
should come directly to OFCOM (6.5.1 and 2), as these are matters
that touch on the fundamental rights of individuals and others
and should be the matter of speedy redress. (See also the comments
on complaint handling above.)
28. The content committee within OFCOM referred
to above needs to be able to draw on the expertise of those who
can bring insight, experience and an independent view to the consideration
of content issues.
29. The Commission agrees that rating may
well be an additional tool for the longer term in providing information
about the nature of content, no matter the platform or means of
delivery (6.7.4).
30. The Commission is already working within
the Council of Europe and with ICRA and IWF and broadcasters and
other regulatory bodies to ensure reliable protective devices
for Internet users (6.10). It will be an important focus for OFCOM.
31. However, the Commission believes it
is important to maintain OFCOM's role as setting the framework
for content standards, and only dealing with any content problems
post delivery. We therefore think the role of classification belongs
outside of OFCOM with an appropriate co-regulatory body such as
the BBFC (6.11.12), though OFCOM could be given the duty to consider
complaints about classification.
PROTECTING THE
CONSUMER
32. The Commission welcomes the clear separation
of content and service issues and supports the appointment of
a consumer panel to advise and lobby on delivery matters (7.5.1).
33. However, we think it would be a mistake
to confuse the different roles of customer service, pricing and
value for money with content concerns (7.5.2). OFCOM's research
and its content committee should be capable of providing guidance
on the assessment of public attitudes.
THE NEW
ORGANISATIONAL FRAMEWORK
34. The Commission believes that OFCOM as
a new body should start from first principles rather than simply
seek to bolt together the existing bodies. Its form should follow
its functions, with an integrated horizontal structure allowing
for working across sectors and disciplines (8.1), rather than
a pillar structure.
35. Given the potential power and scope
of OFCOM, the Commission agrees it should have a board structure
comprising both non-executives (in the majority) and executives
who take responsibility for particular areas. OFCOM should also
have specialist sub-committees with delegated powers, which may
have a more representative feel, to exercise particular specific
functions (ie content issues or radio licensing), with major issues
of policy coming to the main board (8.6).
36. The Commission also agrees that any
internal conflicts between OFCOM's objectives should be the subject
of clear and transparent procedures and appeal processes.
37. The Commission supports the basic objectives
set out in 8.5 as well as the licensing proposals and suggested
powers set out in 8.8 and 8.9, and the approaches set out in 8.10
and 8.11.
38. The Commission sees OFCOM's main areas
of responsibility as follows:
Content (the citizen basket)
— The basic codes, the three tier
system, advertising, rating and filtering, media literacy
Networks and service delivery (the consumer basket)
— Access and interoperability
— Health and environmental
— Consumer Protection and Panel
Competition and economic issues
— Pricing and access issues
— Market/Economic research
Policy and international relations
Communication, public affairs
39. For the structure and functions of the
Content Regulatory Committee which the Commission proposes, see
the attached Annex.
Annex
CONTENT REGULATORY COMMITTEE
1. The Commission would propose as one of
the committees of OFCOM a focused forum specialising in content
matters for citizens and broadcasters which, by its transparent
procedures was able to gain the confidence of both, allowing it
to influence policy and stimulate debate whilst providing a simple,
cost-efficient solution to concerns.
2. Members would be appointed to provide
knowledge and expertise, informed by an appreciation of audience
concerns.
FUNCTION
Advises OFCOM about citizen concerns, helping
to shape policy and the codes, to protect citizen interests and
advise content providers
Strong liaison with research function, both
informing of issues and learning from results
Complaint service with simple, clear procedures
and responsibilities which has the confidence of all stake holders
and provides appropriate redress
To use the information gained from complaints
to help develop policy to protect the interests of citizens and
advise content providers
Each broadcaster to have a procedure for dealing
with complaints. Procedures subject to consultation with Content
Regulatory Committee and must be approved by the Director of content
STRUCTURE
OFCOM appointed members (approximately 10) representing
a broad cross-section and contributing personal expertise and
experience, but independent of industry. Duty to consider issues
raised by complaints and reflect interests of viewers/listeners
re content.
Mandated and delegated by the OFCOM board to
take decisions, especially on fairness and privacy complaints
Funded by OFCOM
Supported by content staff
Legal advice provided by OFCOM
BENEFITS
Regulator benefits from informed debate before
taking decisions
Citizen dimension taken seriously by regulator
and commands public confidence
Content Regulatory Sub-committee has weight
of regulator behind it
Content Regulatory Sub-committee has access
to knowledge and expertise of OFCOM staff
APPEALS
Appeals to the Committee
Judicial Review
February 2001
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