Examination of Witnesses (Questions 40-54)
MR PAUL BOLT, MR NORMAN MCLEAN AND MS ANDREA MILLWOOD HARGRAVE
THURSDAY 23 MAY 2002
40. Being an advocate of the consumer I would like to ask what role you envisage the Consumer Panel playing in content regulation, and are you concerned that it can only address content issues at OFCOM's instigation?
(Mr Bolt) Here I think I share the view not only of the ITC but of OFTEL and other regulators, that I do not see the Consumer Panel as such having a role. I would much rather see, and the ITC touched on various ways in which this could be done, the Content Board demonstrating that it is plugged into both directly viewer/listener feedback in the way that, for example, our codes are informed directly by that, but also in a wider consultative approach to policy making, identifying the public policy angles, if you like, the citizens' as opposed to the consumer interest. Again, I think it is down to the Content Board to have an apparatus which is seen to take in that wider audience interest, rather than confusing people with having the Consumer Panel half in and half out of content regulations. I think we do see a fairly firm divide between them.
41. So if the Content Board then was not playing the advocate's position, how would you legislate against that? If it did not look after the interests of the consumer, how would you legislate against that and effect change?
(Mr Bolt) I think the Content Board would exist only to look after the interests of the citizen rather than the consumer. I think there is a whole range of consumer interests vis-á-vis electronic communications which are relatively unproblematic in the sense that it is quasi utility, if you like; it is fairly obvious what the consumer interest is and that it is a generic interest. This is not at all obvious when you are dealing with the kind of content issues that we have had to deal with and, even more, there are wider issues about content policy that broadcasting regulators have to think about.
(Mr McLean) I think there need to be quite clear arrangements between the Content Board and the Consumer Panel, effective arrangements to enable consumers and citizens to understand the differentiation between the two, and to which body, to which organisation, they should go on any particular issue. That has to be made very public and very clear so that people are not confused about which particular organisation they should address their complaints or particular issues to.
42. Are you satisfied that the citizen and consumer definitions in the Bill are all right?
(Mr Bolt) We certainly have no amendments to suggest.
43. Do you agree with there being a Consumer Panel, or do you think it is just a nuisance? Surely the distinction between the Content Board and the Consumer Panel is that the Content Board is part of the regulator; it has a gamekeeper role to play. The Consumer Panel is there as an independent, self-standing body to champion the consumer interest, and if you are going to have a Consumer Panel there at all, hence my first question to you, is it not artificially clipping its wings to prevent it looking at content issues? Without wanting it to drown itself in content issues, if one thinks back to the introduction to the White Paper, the fundamental principle of creating OFCOM was that you could not distinguish between content and economics, and that the two were intertwined and you had to have this merged regulator to look at the two. Do we want a Consumer Panel at all but, if we are going to have one and it is an independent body, surely it has to have the same right to roam across the entire gamut that OFCOM has?
(Mr Bolt) I do not think saying the two are intertwined is the same as saying that you cannot distinguish between them. I think the two are importantly intertwined and there are some issues that very much need to be tackled in an integrated way. Patricia has touched on some of them but I think one has to face reality and currently people do know in many respects the difference between the concepts of telecoms and broadcastingpeople will continue psychologically to think of them as different. A lot of the regulation going on now will go on after OFCOM is created not very differently from what it is now. Do I think there should be a Consumer Panel? It seems to me to be an excellent and innovative idea to try to have something which is so strongly independent but still within the mechanism. I share Norman's view that what we need is a very clear concordat between the Consumer Panel and the Content Board but I know, and you can ask them, that OFTEL colleagues very strongly feel that a focused Consumer Panel is a good idea and has a wide range of matters which hang together to deal with, and I think it would be very bad, turning your question round, if the Content Board saw itself as not having to worry about this reasonably direct interest of the consumer because the Consumer Panel was there to do that. I think content is the kind of thing where you do need very directly to get alongside the consumer, but also think about it in a wider sense than mere consumerism.
44. As I understand it, there is a danger that if the Consumer Panel's role is not very clearly defined on the face of the Bill, people could become quite cynical about it, it could very quickly become, as it were, a talking shop that people were affectionate towards but did not listen to.
(Mr Bolt) I think that is unlikely given that the Consumer Panel has a statutory position which OFCOM will be statutorily obliged to take notice of. At limit, you cannot both have the benefits of it being statutorily and formally independent and have the merit of being sure it is plugged into the machinery.
Lord Pilkington of Oxenford
45. Going back to this vexed question of the BBC, if I can take you down a little bit of history, when the Annan Commission reported back in the 1970s they said that the BBC's handling of complaints was so dreadful that they established the Broadcasting Complaints Commission which you inherited the role of, and it has jurisdiction over the BBC and also the rest of the broadcasting media. Now that has been taken away from OFCOM. Will OFCOM inherit all your powers in the same way?
(Mr Bolt) Yes, and there is no intention to take it away. The ITC touched on the importance of looking carefully at the BBC's agreement when it is redrafted
46. Which we have not seen.
(Mr Bolt)And presented. There are, for example, powers, as you will know, currently for us and the ITC to require funding from the BBC roughly proportionate to the amount of business they generate, and there are various sanctions we have against the BBC which fall short, as you again will know, of financial sanctions. What we would expect to see and will be looking carefully to see when the revised agreement is produced is not only mechanisms whereby OFCOM can recover its regulatory costs from the BBC just as it will do from the licensed broadcasters, but also mechanisms which will reproduce and probably add to the sanctions that we currently have against the BBC, and I fully share the ITC's view that there should be equality between the BBC and other broadcasters in that, and there ought to be at limit some means of financial sanction. I should say that it is, of course, very rare for the ITC or the Radio Authority to go around fining broadcasters for matters of a purely content nature, so I think it would be a pretty backstop power.
(Mr McLean) Could I be rather technical here, and perhaps the Bill Team might correct me if I have got this wrong: Clause 219 of the Bill replicates Part 5 of the Broadcasting Act 1996 which is all about fairness and privacy complaints, processes, procedures, which includes complaints against the BBC in relation to fairness and privacy matters.
47. So you are happy about that. The other question is this: are you happy that the proposed objectives relating to standards in Clause 212 are adequate?
(Mr Bolt) With one exception: the only thing that worries us about those is they all go in one direction. They all, in effect, talk about reasons for intervening and nowhere is it stated that there is a positive good in freedom of expression in its own right. Now, Clause 3(1)(f) in the general duties does refer to that as one of the things to be weighed but nowhere does it state it in the code. Obviously to some extent you could always pray the general duty in aid I suppose, but I do think it is odd that it is not expressly mentioned. There has to be balance there otherwise it is just a sort of nanny's charter and excuse to be too restricted in the code.
48. So you would like this specifically altered in the Bill?
(Mr Bolt) Yes, I would like some meansI believe Counsel has had some difficulties about doing itof saying that in formulating the code and deciding revisions of it and matters under the code, and one of the things that I would say ought to be in the first set of objectives should be the sustaining of freedom of expression is a good in its own right.
49. Since Lord Pilkington took us down memory lane, when I entered the Lords in the mid-90s there was a group organised by Lord Orr-Ewing that seemed to stay up all hours of the night simply to be shocked by the BBC, but one of the problems is that with "offensive" and "harmful" there does seem a generational gap in research between what younger people find offensive and what older people find offensive. I am not quite clear yet where this light touch is coming in because everybody that comes to us seems to tell us, "We are all right; we are going to be somewhere in this new organisation". What is different from the Broadcasting Standards Commission that is going to be in OFCOM? What are you going to divest yourselves of? What are you not going to do that you have been doing previously? I also welcome your suggestion about a positive duty. Is it possible to have a single standard for an audience that takes offence at very different things?
(Mr Bolt) I will ask Andrea to pick that up in a minute but very briefly I think the general principle that we adopted in the codes is what is the reasonable expectation of the audience that is likely to be watching a particular programme, and I think that gets you quite a long way beyond the simplicity of trying to applyand, of course, the time is important as wella single standard to all programming everywhere. Andrea will say more in a moment. What is going to be different, what is going to be less regulatory? As I said, at the moment there is a statutory obligation on the BSC, which we have a vast army of five people to carry out, to consider all complaints made about taste, decency, sex and violence, and obviously we try to some extent to weed them out but there is a statutory obligation on us to consider it. Lord Pilkington reminded us that part of it is to keep the BBC under check as well. That is not replicated in the Bill and I think that is good, because I think as long as you have that it tends to encourageI am not saying we always find thisin the last analysis and in the literal sense an irresponsible attitude in broadcasters feeling, "Oh, well, people can always complain to the BSC and we will not really take that seriously complaints made to us". The Bill gives OFCOM an opportunity to have a stick and carrot approach whereby broadcasters improve their act in dealing with complaints and deal with the vast majority of them satisfactorily themselves, even if perhaps they are made initially to OFCOM, and provided the broadcaster is doing this well and sensitively and responsibly OFCOM, as it will be, can stop nannying around and carrying the can for the broadcaster in dealing with all those complaints. I think that is an advance and it offers an opportunity for a considerable liberalisation and I think the broadcasters are showing signs in recent times of being more ready to recognise where things have gone wrong and not arguing the toss with us all the time. I think the time is coming for such a system whereby they deal more with the enforcement of standards and properly with complaints and the admission of where things have been got wrong, and there is a good opportunity to move towards that in what is a revised statutory framework. I am sorrythat was rather a long preamble.
(Ms Millwood Hargrave) You talked specifically about offensive and harmful material, and I think there is an eternal debate about what is harmful so, if I can park that and come back to it, it is the offensive material where you see such great differences across audiences and that is why one conducts research, and Paul talked and so did the ITC about the expectations of audiences, and a lot of programmes are very clearly targeted at different age groups and different types of audiences. The work that the BSC does is not always work that looks at whole markets or audiences: it very often targets and goes into particular areas or groups that might be interested, or that are more susceptible to particular issues that we are having to look at within taste and decency. One of the reasons we so welcome the promotion and development so specifically of media literacy is, as we move into different platforms and different ways of receiving similar types of programming, we see that people have very different expectations and we need to take those into account, and media literacy allows you to cross some of those barriers, whereas broadcasting is a very well understood and well recognised environment at the moment. It is changing with satellite and cable and we see people reacting differently to satellite and cable. It will change even further, and that is why media literacy is so important. The harmful content I think there is less debate about at one level because it is the offensive content where people react so differently, and it seems to me there are many debates, certainly within internet regulation or debates about internet regulation, and internet is talked about within the media literacy debate, about whether something is harmful or illegal, and then how do you define "harmful"? That is a debate that is very difficult to have and, again, you can only do it by conducting research, by drawing on experiences of people around you, on taking information from professionals and building up expertise and knowledge. I think the harmful side is a much more complicated side to research and look at than the offensive side.
50. It has been suggested to us that there should be overlapping membership between the Consumer Panel and the Content Board. Do you agree or disagree with that?
(Mr Bolt) I do not think there should be anything to prevent there being overlapping membership and I can see that advantages might well flow from there being overlapping membership. I really think, and I suppose you will say "He would say this, wouldn't he", that it is unwise for the legislation to go into detail about OFCOM's internal arrangements because I think that will be evolving and it needs to be fluid in much the same way as technology does, but I would say in principle I certainly would not want it to be prevented. It would be slightly odd if there were not some kind of connection, but I think it needs to be very clearly structured and understood.
51. One of the suggestions is that the Bill concentrates on competition at production level and not necessarily content level, the monopolistic provision of the type of content. Do you see the Content Board having any role in promoting that competition, or is that an issue for OFCOM generally?
(Mr Bolt) I think it is for OFCOM generally, but I think it is an issue for the Content Board to take a measured and informed view as to the health of, if you like, the content production market generally, and that would certainly go to your discussion with the ITC about whether quotas are a blunt instrument, or are the right way to go about creating a thriving independent sector. I think it would be part of the Content Board's view to have regard to what is going on because, as Patricia said, one has to be humble; you cannot regulate for good content but you can regulate for an environment which is broadly conducive to it. I think one of the benefits of having all the regulators under one roof will be hopefully that the Content Board will develop the capacity to make an informed input into the top OFCOM board's consideration of competition type issues and say things like, "Well, hey, the most important thing here is, for example, the kind of issues that Channel 4 has been raising about if its share of the market goes down this will have a catastrophic effect in the future on the health of the independent production sector and on Channel 4's performance against its remit". I think that would be an entirely legitimate thing for a content wing of OFCOM to put forward and feed into the wider discussions that are going on.
52. It was said in an answer from Andrea that the landscape is changing constantly and will evolve over time. Do you think the Bill has the flexibility to deal with that?
(Mr Bolt) I will invite my colleagues to add to this but I would say in general terms the Bill takes the right approach of trying to be clear about general principles and general duties by allowing a lot of the actual detail of regulation to be done in secondary legislation but, as Patricia rightly tried to emphasise when you were talking about accountability, it does hedge OFCOM's powers around with a lot of duties to consult and a lot of reserve powers for the Secretary of State, so I think there is the flexibility there that is needed. I also think in broad terms, but again obviously I am parti pris, that there are sufficient accountability safeguards built in.
(Mr McLean) Perhaps Andrea would like to mention media literacy which is quite important and looking very much to the future, and regulation evolving in an approach towards self-regulation.
(Ms Millwood Hargrave) I think I have mentioned media literacy a number of times because it is something that we have always considered very important and have seen how important it has continued to be as the media landscapes change. Taking up one of the particular points, accountability, that was touched upon, I was very pleased to see again that there is a requirement within OFCOM that all its research should be published and that, of course, adds towards the transparency of its decision-making at other levels, certainly within the Content Board the customer research that was being talked about, because that is very important indeed and is a policy we have always held to.
53. I have a question to do with the culture of OFCOM. Do you think it will be able to hit the ground running as a single regulator or as a merger, an agglomeration, of regulators? Will it be able to quickly establish the culture of a single regulator?
(Mr Bolt) I hope it will be neither. I think a merger would be pretty much of a disaster. I think in most mergers you get the worse elements of all of them and I do not think it is necessary, as I have touched on anyway, to pretend that everything has to somehow now be merged and converged when the real world technologically and in market and consumer perception terms is not all merged. I think it is important that there are certain ground rules about the way OFCOM is going to go about its work which are established, and I think openness and transparency will be important to establish throughout the organisation, so I think there are a few general principles there. Of course, the Bill refers to best regulatory practice so I think those kind of things do need to be inculcated throughout the organisation. I do not, however, think it would be right to try to establish a monolithic OFCOM culture so that everybody suddenly came out as homo or femina OFCOM from day 1. A lot of people have a lot of expertise which the public should not be losing, and will be carrying on doing a lot of things very much like they do now. Remember more than half the 1,100 odd posts in OFCOM are in the Radiocoms Agency and a lot of them are just allowing taxis to operate properly and things like that, so one has to be sensible and one has to concentrate on a few big issues where it clearly all comes together. Patricia touched on the digitalisation, broadbandall these thingsand we have to be seen to make a difference by pulling together talent from outside as well as inside the regulators, gripping those issues, making a difference, and showing that this was the kind of thing OFCOM needs to tackle as an OFCOM. So I would say it is not a merger, or a monolithic culture either.
54. Are you thinking of it as a single, coherent, new culture?
(Mr Bolt) At high level, yes.
Chairman: Thank you.