Joint Committee on Draft Communications Bill Report


300. All services that fall within the scope of licensable content services or are otherwise required to hold a licence under the Broadcasting Acts are subject to a framework of standards set out in Clauses 212 to 221. Clause 212 provides a skeleton which OFCOM is to flesh out into standards codes, which may be separate for television and radio.[567] The Government's aim is to ensure that "these standards are flexible so as to be able to reflect changes in social attitudes and audience expectation".[568] The standards have been criticised for failing to carry forward the existing obligation upon the regulator to do all it can to secure that nothing is included in television programmes "which offends against good taste or decency or is likely … to be offensive to public feeling", although in our online forum, Peter Woods supported removal of the obligation, which he viewed as "demonstrably obsolete".[569] The Broadcasting Standards Commission expressed concern that the Government's commitment to ensuring "a proper balance of both freedom of expression and the need to provide protection against certain types of broadcast material" was not reflected in the wording of Clause 212: they feared that the absence of direct reference to the desirability of defending freedom of expression might lead the codes to become a "nanny's charter".[570] In the expectation that, in carrying out its tasks under Clause 212, OFCOM would be required to have the most careful regard to its duties under Clause 3(1)(f) and (g), we have concluded that Clause 212 as drafted provides an appropriate framework for the preparation of standards codes by OFCOM.

301. Clause 214 provides a framework for setting particular standards objectives for advertisements and sponsorship. It prescribes that these standards must contain a prohibition on political advertising. The Government's view is that there are strong grounds for re-enacting the long-standing ban on political advertising in the broadcast media, but it acknowledges that a recent decision of the European Court of Human Rights has cast doubt on the compatibility of that ban with the Convention.[571] Professor Eric Barendt argued that a blanket ban on political advertising was not compatible with human rights and suggested that the aim could best be secured by limits on expenditure on political advertising.[572] The Joint Committee on Human Rights has argued that a ban on the purchase of advertising time for political purposes is likely to be compatible with Convention rights.[573] We support the principles underlying the proposed ban on political advertising contained in Clause 214(2) and urge the Government to give careful consideration to methods of carrying forward that ban in ways which are not susceptible to challenge as being incompatible with Convention rights.

302. Clause 218(2) requires OFCOM to establish procedures for the handling and resolution of complaints about broadcast standards. This is intentionally a much more flexible system than provided for under the 1996 Act. The most significant change is that the BSC is required to consider all complaints relating to taste and decency, whereas OFCOM will not have to do so. This development was welcomed by the BSC, which considered that its current obligation to consider all complaints about broadcast standards had encouraged an irresponsible attitude on the part of broadcasters.[574]

303. The draft Bill does not, however, seek to give effect to the proposal in the White Paper that all complaints about standards be made in the first instance to the broadcaster and only subsequently be considered by OFCOM. The new proposal is designed to enable a prompt response to complaints by the regulator where appropriate.[575] S4C expressed concern at this change, arguing that broadcasters would benefit if all complaints went to them in the first instance; they feared that, "once you provide that alternative avenue for complaints [direct to OFCOM], people will tend to choose the alternative avenue".[576] A similar view was taken by the CRCA.[577] The BBC noted that "broadcasters should usually be the first port of call for complaints about programmes, but complainants should have a right of appeal to OFCOM".[578] We agree that it will usually be in the best interests of broadcasters and viewers and listeners for complaints about standards to be directed in the first instance to the broadcaster concerned, but we view it as an unnecessary restriction upon the viewer or listener to make such a route mandatory, and we support the Government's proposals accordingly.

304. Special considerations, and special procedures, apply in the case of complaints that relate not to general broadcast standards, but individual concerns about unfair treatment or unwarranted infringement of privacy in licensed broadcast services.[579] In essence, the draft Bill transfers to OFCOM the existing functions of the BSC in considering complaints of unfair treatment or unwarranted infringement of privacy.[580] However, the existing requirement on the BSC to establish a Committee to consider fairness complaints is to be repealed.[581] We raised with the ITC whether the requirement for a specific structure for handling such complaints ought to be carried forward into the new arrangements. The ITC thought it was likely that OFCOM would establish a specific sub-committee for dealing with fairness and privacy issues.[582] While we accept that it may be inappropriate to be too prescriptive on the face of the Bill, we consider it to be of the utmost importance that OFCOM establishes specific structures for handling complaints relating to fairness and privacy and ensures that adjudication of such complaints is made only by those who have heard and considered the case in full.

567   Q 55. Back

568   Policy, para Back

569   Broadcasting Act 1990, section 6(1)(a); Memorandum submitted by Media-Watch UK. Back

570   Policy, para; QQ 47-48. Back

571   EN, para 365. Back

572   Ev 168, para 8; QQ 497-500. Back

573   JCHR, paras 57-63. Back

574   QQ 36, 49. Back

575   Policy, para Back

576   Ev 214, paras 4.8-4.9; Q 611. Back

577   Ev 251, para 46. Back

578   Ev 174, para 3.5. Back

579   Cm 5010, section 6.5. Back

580   Broadcasting Act 1996, sections 107, 110, 111, 114, 115, 118 to 121; Clause 219 and Schedule 10, para 106. Back

581   Broadcasting Act 1996, section 112; Schedule 13, Part 1. Back

582   Q 27. Back

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Prepared 31 July 2002