Digital Economy Bill

Written evidence submitted by Action on Hearing Loss (DEB 07)

A. Executive Summary

· Action on Hearing Loss is calling for the Digital Economy Bill to be amended to include provisions to provide for minimum levels of subtitles, audio-description and signing for TV watched on-demand.

· There are 7.5m subtitle users in the UK, [1] and 11 million people with hearing loss; that’s 1 in 6 people. [2] In addition to providing an essential service for people with hearing loss, subtitles are also widely used by people without sensory loss. [3]

· Thanks to legislation, the majority of traditional TV (linear programmes that are broadcast at a set time) includes optional subtitles; many channels exceed the 80% legislated minimum level of provision. [4]

· Because on-demand services are not covered by existing regulation, the provision of access services for TV watched on-demand relies on voluntary action by the industry. This approach has failed. Subtitles are missing, and 76% of on-demand content is inaccessible to people with hearing loss. [5]

· Action on Hearing Loss has worked closely with television providers, alongside the Royal National Institute for the Blind (RNIB) and Sense, to increase access services for people with sensory loss. But by 2015, only four of the UK’s 90 on-demand providers offered audio description; [6] there is a real and urgent need to improve.

· The digital exclusion of people with sensory loss is growing. Each year, an increasing number of people watch on-demand rather than linear TV, and they use internet enabled devices like tablets, laptops, and smart phones rather than a conventional TV set. [7] Provision of access services must reflect this.

· Television is an important part of UK culture. It provides valuable shared education, social and cultural resources as well as relief from stress and social isolation, [8] to which people with sensory loss have heightened vulnerability. [9]

· Parity in legislation governing linear and on-demand TV will provide parity in the provision of essential access services, bringing law into line with the modern digital landscape and removing the barriers that currently exclude people with sensory loss from equitable digital access.

For full definitions of linear TV and on-demand TV (also called video on-demand, or VOD), see Appendix 3.

B. Action on Hearing Loss

1. Action on Hearing Loss is the charity formerly known as RNID (Royal National Institute for the Deaf). Our vision is of a world where deafness, hearing loss and tinnitus do not limit or label people and where people value and look after their hearing. We help people confronting deafness, tinnitus and hearing loss to live the life they choose. We enable them to take control of their lives and remove the barriers in their way. We give people support and care, develop technology and treatments, and campaign for equality.

2. Throughout this evidence, we use the term 'people with hearing loss' to refer to people with all levels of hearing loss, including people who are profoundly deaf.

3. As the UK's largest charity taking action on hearing loss, we have longstanding experience in promoting digital access for people with sensory loss. We welcome the opportunity to submit evidence to the Digital Economy Bill Committee and support the introduction of legislation that reflects the substantial developments in digital broadcasting since 2003, when the Communications Act came into force.

4. We believe that people with hearing loss should benefit from the huge potential of new technology. In the digital revolution, no one should be left behind.

C. Background

5. Subtitle provision for television is ensured by the Communications Act 2003, which sets a proportional quota of access services to be provided on traditional linear TV (see Appendix 2). [10] Government developed the 2003 Act in recognition of the fundamental importance of access services for people with sensory impairments. [11] However, it does not require access services for on-demand content. [12]

6. A significant gap now exists between provision of subtitles on linear TV, which is 99% on some services, [13] versus on-demand television, where 76% of services provide no subtitles whatsoever. [14] This disparity highlights the failure of markets to deliver parity without a legislative requirement to do so.

7. The lack of access services is even greater with regards to audio-description, which is used by people with visual impairment. Only four of the UK’s 90 TV on-demand providers offered audio description in 2015, and there is no legislative requirement for them to do so. [15]

8. The current approach, which relies on voluntary action by the industry, has failed. Action on Hearing Loss has worked closely with television providers to increase access services for people with sensory loss, alongside RNIB and Sense. We have been reliably and consistently informed that legislation is the primary motivation for industry to invest in provision of these services.

9. As on-demand services become increasingly popular, [16] the Digital Economy Bill provides an opportunity to modernise the law, bringing it up to date by requiring that minimum levels of access services are available for TV watched on-demand.

D. Outline of Proposed Amendments

10. Action on Hearing Loss propose a new clause is added to the Digital Economy Bill to provide for a statutory code to underpin the provision of essential access services (subtitles, audio-description and signing) for on-demand television. This would bring parity to the legislation governing linear broadcasts and on-demand content, and would ensure that the successful provision of access services on the former would extend to the growing amount of TV content that is watched on-demand.

11. In the 2015-16 annual session of Parliament, Lilian Greenwood MP introduced a Private Members Bill to achieve this aim, the On-demand Audiovisual Services (Accessibility for People with Disabilities affecting Hearing or Sight or both) Bill 2015-16. [17] This Bill could, with some alteration, be the base for a new clause. The suggested clause is attached in Appendix 1.

12. If passed, the amendment would allow the regulator to publish a code outlining designated levels of access services for on-demand services. The code, as envisaged in the Private Members’ Bill, would be subject to a public consultation and regular review. It would set out the way that allocation of responsibility is split between broadcasters, platform operators, and other programme providers.

13. The term and scope of the term ‘on-demand audio-visual programme’ is already established in legislation through the Section 368A on the Communications Act 2003 (as amended).

Proportionate Measures for Parity

14. The code itself would not be set in legislation and two structural components ensure it would not impose an undue burden on the industry: First, the code would be subject to a public consultation and we anticipate that the industry would actively contribute and make the case for what is fair and feasible.

15. Second, it mirrors the existing code for linear TV, which contains a number of safeguards to ensure that the requirement does not act as a barrier to market entry or impose a disproportionate burden. For example, the proportion of content which must include access services works on a sliding scale; channels with low audience thresholds are exempted and minimum levels are gradually built up for new channels over a ten year period. [18]

16. Appendix 2 outlines the proportionate quota system which determines the levels of access services that must be provided on linear TV content over time.

E. The need for Digital Inclusion

17. Television is a significant and important part of British life. 95% of homes have a working TV, [19] and we spend on average 3 hours and 36 minutes watching TV each day. [20] It is a valuable educational, social, and cultural resource.

18. Television also plays an important role in social integration and provides relief from stress and isolation, to which people with sensory loss have heightened vulnerability. [21] For deaf and hard-of-hearing audiences, inclusivity in mass media broadcasts is critical for social inclusivity, psychological wellbeing and quality of life. [22]

19. Whilst traditional linear viewing remains popular, Ofcom report that since 2010 the reach of on-demand services has grown by 31pp to reach 58% of UK adults. [23] Each year the popularity of on-demand TV grows whilst linear viewing declines. [24]

20. But despite there being 7.5m subtitle users in the UK, [25] unlike on linear TV, there’s nothing obliging broadcasters or TV platforms to offer subtitles on these on-demand services - and most don’t.

21. For consumers who pay for subscription video on-demand packages, a failure by their service provider to subtitle paid-for content can feel both unjust and unfair. We know some customers have even paid for additional content with other services, after discovering their original TV subscription package does not offer subtitled content. [26]

Why Won’t the Voluntary Approach Work?

22. One reason the voluntary approach has failed is the inter-connected nature of the on-demand market. Platform providers draw content from multiple sources; in some instances, each platform provides content from within their own supply-chain, but will also host a number of on-demand services from other broadcasters. For example, as well as Sky content, a Sky subscription also provides viewers with access to other on-demand services including programmes from ITV, Channel 4, Channel 5, Comedy Central and UKTV.

23. Both Sky and BT have announced plans to improve the provision of their own on-demand content provided through their platforms. But this fails to take other content into consideration. As the most recent report from the regulator noted, there ‘continues to be something of a stalemate between content providers and platform operators regarding responsibility for VOD subtitling’. [27]

24. Content providers and platforms both believe that the responsibility to provide subtitles lies with the other. This will not be overcome without intervention from either the regulator or Government.

25. Subsection 3 of our proposed amendment (Appendix 1) is created to give the Government and regulator the power to intervene and end this stalemate.

New Generation Viewing

26. The decline of linear TV is likely to continue as future generations cement the popularity of on-demand services. Time spent watching broadcast television has had the steepest decline (27%) amongst 16-24 years olds since 2010, [28] and younger households are also more likely to live without any conventional TV set at all. [29]

27. Take up and use of on-demand services is growing. Ofcom data show that the proportion of time spent watching pre-recorded programmes has remained flat over the last three years, whilst on-demand viewing continues to grow. [30]

28. As more people than ever are connected to the internet, time spent watching live TV has fallen whilst viewing of all on-demand has progressively grown, almost doubling between 2010 and 2015. [31]

Internet Enabled Smart Phones, TVs, and Personal Devices

29. The increasing ownership of internet-enabled devices, such as tablets and smart phones, and the growing availability of superfast broadband and 4G mobile, has enabled the growth of on-demand TV viewing. [32]

30. More TV is watched over the internet than ever before. [33] The number of homes with no conventional TV set but with a broadband connection has risen, trebling between 2009 and 2014. [34]

31. Tablets offer an unprecedented level of technological access to families (Ofcom report one in three children have their own tablet) and, at the end of 2014, 36% of people were watching online catch-up TV services, like ITV Player, using a tablet. [35]

32. An increasing proportion of households have a TV connected to the internet via a smart TV, set-top box, games console or device such as Apple TV or Chromecast. [36]

33. Uptake of linear TV through internet, such as BT TV, is continuing to grow, as is the number of people subscribing to video-on-demand services like Netflix and Amazon. [37] Ofcom predict that video viewing on mobile phones will also ‘carry on increasing strongly’ as more people acquire smartphones and 4G mobile. [38]

34. As the provision of superfast broadband is increased across the UK (83% of premises in 2015 compared to 75% in 2014), [39] it is likely to increase the desirability and uptake of internet TV, via internet-enabled TV sets and personal devices, even further.

The Unmet Need for Subtitles

35. There is a significant unmet need for subtitles for on-demand TV. The BBC report that almost 2 million programmes a day, or 20% of all on-demand programmes, are watched using subtitles on BBC iPlayer. [40]

36. In 2015, Action on Hearing Loss found that 89% of people with hearing loss rely on subtitles to watch TV at least some of the time, and 87% of people with hearing loss have started to watch a programme on-demand and found that it had no subtitles. [41]

37. The impact is of national significance. One in six people in the UK (a total of 11 million) have hearing loss, indicating that a significant part of the population face exclusion from digital content. [42]

38. Television is an important cultural and social resource, and exclusion can exacerbate the sense of loneliness and social isolation that deeply affects many people with hearing loss. [43]

39. Our supporters report being isolated from social conversations about TV series, feeling ‘embarrassed’ when finding subtitled content with friends proves difficult or impossible, and of being ‘frustrated and disappointed’ when they cannot join their loved ones in watching a popular film or show. [44]

40. The majority of our supporters (68%) watch TV with at least one other person and the ability for subtitles to create inclusive social activities should not be overlooked. Seven out of ten people with hearing loss said they feel they’ve missed out on, or been left out of, conversations with their friends or family because of a lack of subtitles on on-demand services. [45]

41. Of those who said they never watch on-demand content, nearly two fifths (38%) said this was because subtitles are not available. [46]

42. When surveyed, nine out of ten people with hearing loss said the government should regulate to ensure that subtitles are available for on-demand services. [47] Legislation that ensures equitable access to on-demand television for people with sensory loss is long overdue.

43. As the revolution in technology continues, so will the shift from traditional TV viewing to on-demand viewing on smart TVs, via internet, and using multi-media devices like tablets and PCs. Provision of access services and governing legislation must reflect this.

F. Appendix 1 – Proposed New Clause

New Clause: Code of practice: accessibility to on-demand audiovisual services for people with disabilities affecting hearing and/or sight

(1) The Secretary of State shall by regulations establish a code of practice for the augmentation of on-demand audiovisual programme services to require providers of such services to accompany designated output with designated levels of –

a) Subtitling

b) Singing, or

c) Audio-description

(2) The Code shall require minimum levels of provision of one or more type of audiovisual augmentation

(3) The Code shall make provisions about the meeting of obligations established, including by allocating relevant responsibilities between –

a) Broadcasters

b) Platform operators, and

c) Any other provider or purveyor of programmes or programme services

(4) The Secretary of State shall, before making regulations under subsection 1, conduct a public consultation to inform the Secretary of State’s determination of the elements of the Code.

(5) The Secretary of State may delegate such duties and powers conferred under this Clause to an appropriate designated authority or agency as the Secretary of State thinks appropriate.

(6) For the purpose of Subsection 1 a service is an on-demand audiovisual programme if it falls within the definition given in Section 368A (Meaning of "on-demand programme service") of the Communications Act 2003 (as inserted by the Audiovisual Media Service Regulations 2009).

G. Appendix 2 - Ofcom’s Code on Television Access Services

44. In December 2003, the part of the Communications Act 2003 (the Act) that deals with the provision of access services (subtitling, signing, and audio description) for television content came into force. The Act ensures that linear television is accessible to people with sensory loss by creating a statutory requirement for the provision of access services on those broadcasts. [48]

45. The Act states that Ofcom must publish and from time to time review a code setting out how applicable television services should promote the understanding and enjoyment of television by people who are deaf or hard of hearing, or blind or partially-sighted, or who have a dual sensory impairment (deafblind).

46. The Act prescribes quotas for the subtitling (80%), signing (5%) and audio description (10%) of programmes to be reached by the tenth anniversary of the relevant date for each channel, as well as a subtitling quota to be reached by the fifth anniversary (60%).

47. Ofcom’s Code on Television Access Services sets out the criteria for determining which channels should provide access services, and what targets they should meet after what duration. Channels are selected on the basis of the benefits they would deliver to the audience, subject to being able to afford to provide access services. For those purposes, domestic channels with an audience share (all UK households, all times) of 0.05% are required to provide access services, unless there are technical reasons why this would not be practicable, and subject to their ability to afford the assessed cost by paying up to 1% of their relevant turnover.

48. The Code also sets out the types of programmes to be exempted from access service obligations (which may include all the programmes included in a channel).

49. The detailed obligations are available in Ofcom’s Code on Television Access Service, which can be viewed online at http://stakeholders.ofcom.org.uk/binaries/broadcast/other-codes/tv-access-services-2015.pdf

H. Appendix 3 – Glossary

Linear

51. Linear TV is viewed live at the time of broadcast. This is the traditional way of watching television and requires viewers to 'tune in' to a specific channel at a scheduled time to watch a programme.

52. Linear TV may also be called traditional TV, or live broadcast TV, although ‘live’ in this context refers to the method of broadcast rather than filming.

On-Demand

53. On-demand TV, also called video on-demand, or VOD, can be watched at a time chosen by the viewer. On-demand services include 'catch-up' TV where programmes previously broadcast as linear TV (e.g., an evening episode of EastEnders) can be accessed at a later time or date to suit the viewer. It is a source of particular frustration for subtitle users that even when the original linear version of a programme has included subtitles, these same subtitles are often not available on the catch-up version. This was noted by Ofcom in their most recent access service consultation document, ‘Accessibility of on demand programme services’ in 2016. [49]

54. On-demand TV also includes internet services and paid on-demand services (such as Netflix) that can be watched at a time of the viewer's choosing and may not have been broadcast before.

October 2016

I. Reference


[1] Ofcom, 2006. Television Access Services: Review of the Code and Guidance. Available from:

[1] http://stakeholders.ofcom.org.uk/binaries/consultations/accessservs/summary/access.pdf [Accessed 15 September 2016]

[2] Action on Hearing Loss, 2015. Hearing Matters: Why urgent action is needed on deafness, tinnitus and hearing loss across the UK. London: Action on Hearing Loss

[3] Ofcom, 2006. Television Access Services: Review of the Code and Guidance. Available from:

[3] http://stakeholders.ofcom.org.uk/binaries/consultations/accessservs/summary/access.pdf [Accessed 15 September 2016]

[4] Ofcom, 2015 Ofcom Television access services report 2015 . London: Ofcom. p.3

[5] ATVOD, 2015. Provision of Video on Demand Access Services - 2015 Report . Windsor: ATVOD

[6] ATVOD, 2015. Provision of Video on Demand Access Services - 2015 Report . Windsor: ATVOD

[7] Ofcom, 2015. Connected Nations 2015. London: Ofcom. p.77-78

[8] Evans, L., Wu, Y. & Price, E.. A new hope? Experiences of accessibility of services in deaf and hard-of-hearing audiences post-digital television switchover. 2015. International Journal of Digital Television , 6(3), p.350

[9] Action on Hearing Loss, 2015. Hearing Matters: Why urgent action is needed on deafness, tinnitus and hearing loss across the UK. London: Action on Hearing Loss, p.29

[10] Ofcom, 2015 Ofcom’s Code on Television Access Services . London: Ofcom

[11] Department for Culture, Media and Sport, 2010. Television Access Services for People with Sensory Impairments . London: Department for Culture, Media and Sport.

[12] Communications Act 2003. London: HMSO

[13] Ofcom, 2015 Ofcom Television access services report 2015 . London: Ofcom. p.3

[14] ATVOD, 2015. Provision of Video on Demand Access Services - 2015 Report . Windsor: ATVOD

[15] ATVOD, 2015. Provision of Video on Demand Access Services - 2015 Report . Windsor: ATVOD

[16] Ofcom, 2016. Factsheet 7 – video on demand. London: Ofcom

[17] On-Demand Audiovisual Services Bill , 2015-16. London: The Stationery Office

[18] Ofcom, 2015 Ofcom’s Code on Television Access Services . London: Ofcom. p.3-4

[19] Ofcom, 2016. Facts and figures [online] Available at: http://media.ofcom.org.uk/facts/ [Accessed 19 September 2016]

[20] Ofcom, 2016. Facts and figures [online] Available at: http://media.ofcom.org.uk/facts/ [Accessed 19 September 2016]

[21] Action on Hearing Loss, 2015. Hearing Matters: Why urgent action is needed on deafness, tinnitus and hearing loss across the UK. London: Action on Hearing Loss, p.29

[22] Evans, L., Wu, Y. & Price, E.. A new hope? Experiences of accessibility of services in deaf and hard-of-hearing audiences post-digital television switchover. 2015. International Journal of Digital Television , 6(3), p.350

[23] Ofcom, 2016. Facts and figures [online] Available at: http://media.ofcom.org.uk/facts/ [Accessed 19 September 2016]

[24] Ofcom, 2015. Connected Nations 2015. London: Ofcom. p.77-78

[25] Ofcom, 2006. Television Access Services: Review of the Code and Guidance . London: Ofcom. p.2

[26] Action on Hearing Loss, 2015. Progress on pause: Spelling out the case for subtitles on on-demand services. London: Action on Hearing Loss.

[27] ATVOD, 2015. Provision of Video on Demand Access Services - 2015 Report . Windsor: ATVOD. p.14

[28] Ofcom, 2016. The Communications Market 2016:Television and Audio-visual. London: Ofcom. p.53

[29] Ofcom, 2015. Connected Nations 2015. London: Ofcom. p.77

[30] Ofcom, 2016. The Communications Market 2016:Television and Audio-visual. London: Ofcom. p.103

[31] Ofcom, 2016. The Communications Market 2016:Television and Audio-visual. London: Ofcom. p.103

[32] Ofcom, 2016. The Communications Market 2016:Television and Audio-visual. London: Ofcom. p.54

[33] Ofcom, 2016. The Communications Market 2016:Television and Audio-visual. London: Ofcom

[34] Ofcom, 2015. Connected Nations 2015. London: Ofcom. p.77

[35] Ofcom, 2015. Half of UK homes turn to tablets – in just 5 years [press release] 27 May 2015. Available at: http://media.ofcom.org.uk/news/2015/five-years-of-tablets/ [Accessed 19 September 2016]

[36] Ofcom, 2015. Connected Nations 2015. London: Ofcom. p.80

[37] Ofcom, 2015. Connected Nations 2015. London: Ofcom. p.80-81

[38] Ofcom, 2015. Connected Nations 2015. London: Ofcom. p.81

[39] Ofcom, 2015. Connected Nations 2015. London: Ofcom. p.3

[40] BBC, 2016. BBC launched subtitles for live channel on BBC iPlayer in World-first. [Press release] 27 July 2016. Available at http://www.bbc.co.uk/mediacentre/latestnews/2016/BBC-launches-subtitles-for-live-channels-on-BBC-iPlayer-in-world-first [Accessed 19 September 2016]

[41] Action on Hearing Loss, 2015. Progress on pause: Spelling out the case for subtitles on on-demand services. London: Action on Hearing Loss.

[42] Action on Hearing Loss, 2015. Hearing Matters: Why urgent action is needed on deafness, tinnitus and hearing loss across the UK. London: Action on Hearing Loss.

[43] Action on Hearing Loss, 2015. Hearing Matters: Why urgent action is needed on deafness, tinnitus and hearing loss across the UK. London: Action on Hearing Loss. p.29

[44] Action on Hearing Loss, 2015. Progress on pause: Spelling out the case for subtitles on on-demand services. London: Action on Hearing Loss.

[45] Action on Hearing Loss, 2015. Progress on pause: Spelling out the case for subtitles on on-demand services. London: Action on Hearing

[46] Action on Hearing Loss, 2015. Progress on pause: Spelling out the case for subtitles on on-demand services. London: Action on Hearing

[47] Action on Hearing Loss, 2015. Progress on pause: Spelling out the case for subtitles on on-demand services. London: Action on Hearing

[48] Ofcom, 2006. Television Access Services: Review of the Code and Guidance . London: Ofcom.

[49] Ofcom, 2016. Accessibility of on demand programme services . London: Ofcom.

 

Prepared 10th October 2016