Examination of Witnesses (Questions 165-179)
MR TOM
KAVANAGH, MR
CHRIS BANATVALA
AND MR
GEORGE KIDD
28 NOVEMBER 2006
Chairman: We now move on to the regulators.
Can I therefore welcome representatives of each of the three regulators
involved in this area: Tom Kavanagh of the Gambling Commission;
George Kidd of ICSTIS; and Chris Banatvala of Ofcom. Can I ask
Janet Anderson to begin.
Q165 Janet Anderson: Could I first
of all address you, Chris, about the number of complaints made
to you about call TV shows. I believe that the volume of these
shows that are being broadcast is increasing significantly. Can
you perhaps tell us how the proportion as well as the number of
complaints has risen over time.
Mr Banatvala: Last year in 2005
we received around 450 complaints about quiz shows. This year
it is projected to be around 800. To put that in some sort of
context, last year in terms of programmes we received 15,500,
and along with the advertising issues as well which went to the
ASA, that is about 29,000. In terms of this year it is projected
to be around 25,000 together, of which about 16,000 are programming,
so coming to Ofcom it is about 800 of 16,000 but within the panoply
of all broadcasting issues of 25,000.
Q166 Janet Anderson: And what is
the nature of these complaints? What do people mainly complain
about?
Mr Banatvala: A large majority
of the complaints are not Code specific. What I mean by that is
they do not warrant an investigation because they simply raise
concerns, the sort of concerns you are rightly raising here today.
They say, "It is unfair, we do not know what is going on,
the quiz is too difficult, or too easy." However, 25% relate
to George Kidd's area of ICSTIS which is about the actual promotion
of the premium rate, and the other 25% are specific and which
we investigate and we adjudicate on.
Q167 Janet Anderson: So would it
be fair to say that most of your complainants have not gone through
the free route on the internet; they are generally the ones who
have had to pay the premium rate?
Mr Banatvala: To be honest with
you, the majority of the complaints are not necessarily people
participating in the programme. I would say they are third party
interested people who think there is something inherently wrong
with these rather than people who have actually participated and
said, "I phoned in and I did not get through."
Q168 Janet Anderson: Right. Could
I perhaps ask you, Tom, about this business about the free routes.
Somebody mentioned earlier there were some statistics about people
who had internet access and it says that in socio-economic groups
D and E it is only 35% and of the over 65s it is 25%, so it seems
to me that some of these shows are circumventing the regulations
on lotteries by offering what is a free route, but it is a free
route that is only available to a very limited number of people.
Mr Kavanagh: That is a good point.
The new Act introduces a five-point test. That does not come into
effect until next September but it clarifies a lot the law in
that area. As I was listening earlier I was looking at the first
point of that test, and that is that each entrant has a choice
between using the paid or the free route, so there is clearly
a question we are going to have to address of do people genuinely
have a choice between the two routes if a substantial proportion
of them do not have access to what is the free entry route. That
is something that we are going to have to look at over the next
few months.
Q169 Janet Anderson: So you think
that by offering internet access this may just be a way of circumventing
the regulations?
Mr Kavanagh: I am not sure I can
say that. What I can say is the test that we have got to use is
the one that is given to us in the Act. The web entry itself is
clearly a free route as defined by the Act, but does it meet the
first point of the five-point test which is, as I have said, that
it must be available to each entrant. That is what the Act actually
says, that each entrant must have a choice between the free and
the paid route. Clearly if internet access is as low as was suggested
by some of the earlier people here, there is a real question there
as to whether people genuinely have that choice.
Q170 Janet Anderson: Do you consider
this to be gambling? Do you think it is a form of gambling?
Mr Kavanagh: I can only answer
in terms of the law that we are required to operate. If there
is no free entry route, it is a lottery undoubtedly as defined
by the Gambling Act. If there is a free entry route the question
boils down to whether it meets the five-point test. If it meets
that five-point test then it falls outwith the definition of gambling
and the Gambling Act and therefore outwith our regulatory control.
Q171 Janet Anderson: This is obviously
something you are going to look at.
Mr Kavanagh: We are looking at
it. As I say, we have got the five-point test and that is what
we have to use to judge the different programmes and channels.
Q172 Janet Anderson: Could I perhaps
to all three of you pose the next couple of questions. Do you
think it is unfair to keep viewers in the dark about how the correct
answer was arrived at in cryptic puzzles, particularly when no
viewers have been able to solve them?
Mr Kavanagh: To us it is a problem
that we do not have in gambling because it is not what normally
happens. In gambling regulation the outcome of the event is always
known. You talked about a bookmaker and you can always find out
who won a horse race, so we have never had to face a gambling
case where the bookmaker or casino says, "We are not going
to tell you the outcome but you have lost"!
Q173 Janet Anderson: Absolutely.
What about George and Chris?
Mr Kidd: I will give you a short
answer because this really is Chris's business at Ofcom. The point
at which our Code might engage would be if you get to the point
where you are misleading people by virtue of they simply could
not possibly know—
Q174 Janet Anderson: You mean like
the rawlplugs example?
Mr Kidd: The rawlplugs might be
a case in point. It is first and foremost an Ofcom issue about
the fairness of the broadcasting Code and so on.
Mr Banatvala: This is Ofcom's
area because this is to do with the editorial content as opposed
to the promotion of premium rate lines. As George says, our Code
requires fairness and of course we have to define what fairness
is. The question that was posed before and the question that we
would have to ask ourselves is would a reasonable person be able
to get to the answer? If the answer to that is no, then there
is a possible breach of the Code. If it is possible, and you use
examples such as "white . . . white whatever" everybody
who rings up knows that there will be a number of options—yes,
you will know and you will be in full knowledge that a lot people
know the answer. What you might not know is something you are
rightly focusing on, which is what are your chances of getting
through on that question. Referring to the slightly more difficult
cryptic questions, what we require is that if you have a difficult
or cryptic question a) that you do not say it is easy, and b)
if required, you will show Ofcom your methodology and we will
verify it.
Q175 Janet Anderson: Right, and are
you satisfied that they are following your recommendation of lodging
answers and methodology with a third party?
Mr Banatvala: That is a recommendation.
What we say is you do not have to do it but you have to be able
to show that you have independent verification. We do not say
exactly how you should do it, but if we want to know the answer
and we want to know how you have kept it, then we will ask you
the question. We are not prescriptive and say you must lodge it
with a lawyer; what we say is you must prove it to us.
Q176 Chairman: Can you say a bit
about where we have got to. You are conducting a review of this;
do you accept that the present regulation is insufficient to offer
the consumer the protection that he needs?
Mr Banatvala: Can I just give
you a little bit of background. It was in about April or May of
last year when these quizzes really mushroomed. We published our
Code in May last year and it came in in July, and for the first
time there was a requirement to conduct competitions fairly. On
the back of viewer interest/viewer concern, we went out and we
produced some guidance, alongside the ICSTIS guidance, and we
divided it quite rightly where theirs was to do with the promotion
of the premium rate and ours was to do with editorial control.
It was at the beginning of this year that we did that and concern
has continued to increase and there have continued to be press
enquiries, and we have therefore decided that we should look again.
ICSTIS itself will talk about what transparency is already there.
It is quite important to note that when in February ICSTIS produced
its guidelines, it changed the scene. It very much changed what
was out there. There was first a requirement, for instance, to
tell people how much the call was at the beginning. ICSTIS will
continue with all the different changes. Having said that, six
months later we are both looking at our remits again. From our
point of view I notice that a lot of people have used analogies
to selling, and we are asking that very question ourselves: is
this actually advertising as opposed to editorial? If that is
the case, then obviously a different Code will come down to bear
because it will be more about consumer protection and financial
transactions than the editorial role that Ofcom looks after.
Q177 Mr Evans: Do you think that
people ought to know the chances that they have of getting through
to the studio and what the chances are of them even winning the
prize? When I said is it perhaps one in half a million chance
of winning the prize, I could not be told. It might even be worse
than that. People should be given that information, surely?
Mr Banatvala: I will ask George
to answer because it is within his remit.
Mr Kidd: Chance is very difficult.
We recognised that at the start. We recognised it last September
when we called the industry in and then consulted all stakeholders
about how we should address call TV. The judgment then was that
what we had to communicate for everybody (which was meaningful)
was the fact there is an element of chance. What we could not
find at that time was a way of computing what the element of chance
would be on a real-time basis. What we did have then, and it would
still be a challenge, was the risk that we ended up with the industry
communicating something which is not meaningful or not helpful
or actually misleading to the customer. So our primary focus when
we introduced the statement of expectations in January was to
make clear you will always pay for a call and you will always
get the message back that there is an element of chance involved.
There are various things that have happened around that, but perhaps
I could take that and move to a point regarding our own review
and our examination of this. The statement was only in place in
January but it is a fast-moving market, and at that time I do
not think we had two national linear broadcasters in the market-place,
so I think it was right and proper that we decided in September/October
time that we would review again whether we had got the balance
right, in light of public expectations, in light of our monitoring,
in light of the complaints that we had had or not had, and the
extent to which there was a latent community out there who understood
or who were frustrated. As part of that we have done some research,
and one of the things we did get from the research—and it
is only headline stuff at the moment—is the fact that 93%
of people who have used the service understand absolutely that
they pay always, and 85% of those who have used the service understand
that there is an element of chance. What that did not drill down
into—and I think today has been enormously helpful in this
regard—is the element of chance.
Q178 Chairman: A witness from ITV
made the point to me that actually he believed that most people
understood that they were one of thousands calling in and therefore
that was the kind of chance of actually getting through. Do you
have any evidence to support that?
Mr Kidd: I think the first new
evidence of understanding we have is the research figures I have
just given you. I think the other place we go in terms of hard
statistics are the people who do come to us. Complaints come to
us through Ofcom, they come to us direct, and they come to us
through the phone companies. I think the experience of phone companies
is interesting. It has not been touched on at all today yet, and
it is a very, very mixed package. Of the 145 complaints that we
had registered and that were investigated in relation to our Code,
7% (less than 10%) related to pricing. Between 50% and 60% related
to fairness, but that fairness was "there is a chance element",
"it is too tough a quiz", "I don't know the odds"—so
it is very much to get inside numbers. At that point with 145,
I do not think we have got robust enough numbers.
Q179 Chairman: ITV suggested earlier,
which you will have heard, that they would be willing to consider
putting up a figure representing perhaps the number of calls in
a similar period the day before. Is that something that you would
consider putting into your Code?
Mr Kidd: Yes. It has got to be
evidence-based and that is the thing in terms of Code changes.
We have got to get this right. I do not want to do something which
has an unintended negative effect upon the consumer. We are looking
at chance, and we made that clear when we said we will review
the statement of expectations. We will look at the quality and
clarity of pricing. The point about whether this is advertising
within a programme, which is itself its own advertising, is a
very good one and, if it is, then there are advertising clearance
standards around pricing, and we will want to look at that in
terms of whether we have got pricing right. I think on the conduct
of studios, this issue of—"I have sat there 25 minutes
and nobody is getting through"- we are in a unique position
to look at the call data and look at the video tapes from our
monitoring and say is this a practice, is it an accidental practice,
is it an occasional practice, is there anything wilful going on.
We need to look at all those things, the complaints and the research
that we have done. I would expect but not anticipate the nature
of change around chance. I think the other things that the broadcasters
have talked about are also interesting and worth looking at. That
is call warnings, which we have in other areas of premium rates,
so if people have a product which might have that compulsive use
aspect to it, and spend caps.
Mr Banatvala: In terms of making
sure that there is absolute transparency, and the consumer knows
exactly what they are getting, we have to get the balance right
in terms of the information because with too much information
on the screen people will miss the key messages. We have all discussed
what are the key messages—the element of chance, how much
it is, where are the terms and conditions, where you can get your
free route of entry—but we have got to be careful because
if you overload the screen you are taking the chance that people
will not read anything, and that is even worse. That is why you
have got to take a very balanced view and take everything into
account before you say this is the information we put on.
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