Select Committee on Culture, Media and Sport Minutes of Evidence

Examination of Witnesses (Questions 420-439)



  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 under-fives?
  (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 at.

  Chairman: Thank you.

Ms Shipley

  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 into it.

  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, for under-fives?
  (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 broadcasting?
  (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.

Michael Fabricant

  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 it?
  (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 of regulation?
  (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 be biting.

  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 ipsos custodes?
  (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.

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