House of Commons - Culture, Media and Sport

Select Committee on Culture, Media and Sport Fifth Report

6 REGULATION OF CONTENT ON NEW MEDIA

Existing regulation of content

196. Linear broadcasting[498] of programmes to a schedule on traditional media has been carefully regulated, with controls designed to protect viewers or listeners—particularly young people—from harmful and offensive content. Holders of broadcasting licences granted by Ofcom are required to adhere to Ofcom's Broadcasting Code. Breach of the Code may lead to fines or ultimately to variation or revocation of a licence; but the regulation is ex post and entails no assessment before broadcast. The onus is on a viewer to register a complaint.

197. The exhibition of film content is governed by section 20 of the Licensing Act 2003, which specifies that the admission of people aged under 18 must be restricted in accordance with any recommendation made by either the British Board of Film Classification (BBFC) or (more rarely) by another licensing authority (such as the local authority). The BBFC classifies almost all films released in the UK, taking into account licensing objectives designated by the Licensing Act: the prevention of crime and disorder, public safety, the prevention of public nuisance, and the protection of children from harm.[499]

198. Video works are also regulated for content and are subject to classification in much the same way as film. "Video work" is defined under the Video Recordings Act 1984 as any series of visual images (with or without sound) produced electronically by the use of information contained on any disc, magnetic tape or any other device capable of storing data electronically and shown as a moving picture.[500] The Act therefore covers works in a wide range of formats including works on VHS cassettes, DVDs and games console cartridges; but it does not cover moving images which are transmitted using the Internet or mobile phone networks. There is also doubt about whether the Act covers video-on-demand: current legal opinion is that it does not, although this has yet to be tested in the courts.[501] Therefore, a viewer may obtain perfectly legally on demand material which includes scenes which have had to be excised at the BBFC's instruction in order to secure a classification and go on general release. Only if the viewer then seeks to publish the material, or if under-age participants are involved, is an offence likely to have been committed.

199. The BBFC told us that there was "simply no gap between what most adults want to be able to see and what the BBFC classifies": in other words, most adults' film and video viewing preferences are not constrained by the BBFC. The BBFC noted, however, that new media offered easy access to extreme material, including animal cruelty, killing, torture and mutilation and sexual violence, and it gave a number of examples of ways in which such material could be made available using new technology to evade regulation. Many methods involved the Internet: material cut from versions issued on general release, on instruction from the BBFC, may simply be posted on websites; and Internet-based mail order services have frequently been used to circumvent UK law and regulation.[502]

200. Video games are covered by the Video Recordings Act 1984 but may claim exemption from classification unless the work depicts to any significant extent certain types of violence or sexual activity, in which case the work must be submitted to the BBFC for classification. Less than 5% of interactive games fall into this category.[503] The remainder are classified under a self-regulatory system-PEGI (Pan European Games System) - under which games developers complete a questionnaire and are awarded a rating by PEGI on the basis of their answers.[504] The BBFC believed that the threshold above which submission to the BBFC became necessary was set very high, thereby permitting the free circulation of material which was clearly unsuitable for young children. The BBFC also pointed out that video games were often upgraded through downloadable "enhancements" or patches, which were free from regulation; such patches could nonetheless include material which would take a game into a more restricted category of classification.[505]

The AudioVisual Media Services Directive

201. The European Commission has brought forward a proposal to update the framework for the regulation of broadcasting at an EU level. This proposal was published in December 2005 and is now presented as a draft Audio Visual Media Services Directive, updating the Television Without Frontiers Directive adopted in 1989.

202. The draft Directive covers many areas, including the maintenance of a single market for television services in the EU, quotas for the transmission of works produced in Europe, and the use of advertising. The area which is of especial relevance to this inquiry, however, and which has given rise to considerable controversy, is the proposal to extend regulation to cover not just traditional "linear" broadcasting, in which programmes are transmitted according to a schedule, but also "non-linear" broadcasting, in which the viewer "pulls" content at a time of his or her choosing. The draft would apply a two-tier approach, with a range of controls over both linear and non-linear broadcasting, but with further provisions applying to linear broadcasts only.

203. Most of the evidence which we received was critical of the proposal to regulate non-linear content, often on the grounds that to do so would hinder the development of new services, "stifle the market",[506] and "deter new and existing new media players from the market and divert investment and innovation away from the EU".[507] DCMS pointed out in an Explanatory Memorandum that some Articles within the Directive offered only an illusion of protection, as they did nothing to prevent children or adults accessing services from outside the EU.[508] Ms Enders spoke of "an amazing sense of optimism that the Commission must have that they can regulate anything online" and described the intention as "foolish" and based upon a "European tradition of wishing to control".[509] Google also described the application of TV rules to content made available on the Internet as misguided and saw the distinctions drawn between linear and non-linear content as impossible to apply in any sensible way on the Internet. At what point, it asked, did timeshifted viewing cease to feel like a television programme (and be regulated as such)?[510]

204. The British Screen Advisory Council warned that the cost of compliance with the Commission's proposals—both for the industry and for Ofcom—would increase "massively",[511] and the Mobile Broadband Group suspected that the Commission had made no attempt to assess the impact on national regulatory authorities; it reported Ofcom as saying that a regulator ten times its present size would be "overwhelmed by the task".[512] DCMS told us that it was vital that regulation was not unnecessary or unenforceable;[513] and Talkback Thames, while acknowledging the Commission's concern for the protection of young people, maintained that the criminal law in the UK already provided the necessary protection.[514]

205. H3G objected to the proposed inclusion of television content broadcast to mobile phones within the framework for regulatory content, arguing that mobile content (unlike scheduled television content) had to be specifically requested, could not be viewed unwittingly and could not be a shared viewing experience.[515] The Mobile Broadband Group described the Commission's proposals on content regulation as "futile, expensive and counter-productive".[516]

206. Not all witnesses were opposed to the Commission's plans to subject non-linear services to regulation. BECTU believed that the proposed framework had already been sufficiently graduated, in that it did not seek to apply the same depth of regulation to new media services as it did to traditional formats, and it regarded the opposition to the draft Directive from new media platform owners (mobile phone, telecommunications and Internet companies) as "blatant self-interest".[517] Equity was also in favour of a degree of regulation of services delivered using non-traditional methods.[518]

207. The stance taken by the Government and Ofcom at the outset of negotiations on the Directive was to resist much of what was proposed, and it represented many of the objections raised above in discussions on the document in the Commission. Both the Government and Ofcom were commended by witnesses for their efforts.[519] In taking this stance, however, the UK found itself in a tiny minority. In the autumn of 2006, recognising that the UK was unlikely to gather support for its preferred course, entailing minimal regulation, the Government took a strategic decision to propose a limited extension of regulation so as to cover on-demand services. Ofcom, although not persuaded of the need to widen the scope of regulation in broadcasting, was prepared to accept regulation "genuinely limited to material that looks, feels, sounds and generally is substitutable for television".[520] The Minister for Creative Industries and Tourism presented this solution as a more logical approach, noting that there was an inconsistency in acknowledging the need to regulate a programme broadcast to a schedule while resisting regulation of the same programme delivered days later on demand.[521]

208. Ofcom urged that self- and co-regulatory mechanisms should be used to ensure the outcomes desired by the Directive.[522] Others agreed that this would be the best approach, supported by existing statutory controls such as those applicable to child pornography.[523] Some models for self-regulation have already emerged. One, the PEGI system for interactive games, we have described above. We were also told by the Mobile Broadband Group in March 2006 that a classification framework for content was to be drawn up by an independent body—the Independent Mobile Classification Body—against which content providers could self-classify content.[524] ATVOD, the Association for Television on Demand, has drawn up for its members a Code of Practice based upon two core principles: Association members should recognise their responsibility to protect children and young people from unsuitable material; and members should recognise their responsibility to provide accurate, timely and reasonably prominent guidance in relation to their offerings of (a) content reasonably expected to cause significant offence or upset to some customers and (b) commercial services.[525] One witness described the ATVOD model as "providing a good example of a way forward".[526]

209. Although this is a report about creative industries rather than about the protection of children, the difficult issue of harmful content which is not broadcast and is not a programme as such but which simply sits on the Internet cannot be ignored. We pressed Google on its policy on controlling user-generated content disseminated via the Internet. It described its strategy as being "to harness the power of […] users to find and flag inappropriate content", and it maintained that it acted promptly to review (and if necessary remove) any content on Google Video found to be inappropriate for instance on the grounds of obscenity, graphic violence or for being racially or ethnically hateful.[527]

210. The most succinct and, we believe, persuasive statement on protection from harmful content was made by Ofcom, which said that "the fundamental message is that the primary responsibility in so many of these environments will lie with the consumer" and that "it is our opportunity to educate them and to make sure they have the tools available to them to make sure that they know what is there.[528] Google also subscribed to this view, saying that the best way of enabling parents to protect their children was to provide them with the tools to control viewing.[529] The Mobile Broadband Group told us that mobile phone operators provide filters for content accessible from a mobile phone over the Internet, providing a degree of parental control over children's access to websites.[530]

211. We agree with the approach taken by the Government and by Ofcom in negotiations with other EU Member States and with the European Commission on the draft Audio Visual Media Services Directive. The Government took a pragmatic decision to support the regulation of on-demand broadcast services, although we accept that there is in any case some logic underlying such a policy. It must be recognised, however, that the EU has chosen to extend the scope of new media regulation in ways that may disadvantage it in a globally competitive and increasingly technologically borderless world, and could see some existing businesses as well as start-ups in future choose to operate from more liberal jurisdictions. We believe that any such regulation of on-demand services should be self-regulation, both by the industry and within the home. In line with its duty to promote media literacy, Ofcom, with the assistance of all broadcasters and media regulators, should seek to increase public awareness that the protection of children from harmful content accessed via both new and traditional media will become increasingly a responsibility for parents.

498 Broadcasting in real time of programmes to a schedule: the programmes are "pushed" by the broadcaster rather than "pulled" on demand by the viewer. Back

499 Licensing Act 2003, section 4 Back

500 See Ev 273 Back

501 Q 611 Back

502 Ev 277-8 Back

503 ELSPA Ev 218 Back

504 BBFC Ev 278 Back

505 Ev 278 Back

506 H3G Ev 85; see also Mobile Broadband Group Ev 89 Back

507 BT Ev 100; also BSAC Q1. See also Ofcom memorandum to the House of Lords European Union Committee, published in Television Without Frontiers?, 3^rd Report of the European Union Committee, Session 2006-07, HL 27, Ev 43 Back

508 See Television Without Frontiers?, 3^rd Report of the House of Lords European Union Committee, Session 2006-07, HL 27, Ev 67 Back

509 Q 39 Back