House of Lords - Explanatory Note
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Clause 304: Code of practice for electronic programme guides

639.     OFCOM must draft and maintain a code of practice for electronic programme guides. This may extend to ensuring that programmes on public service channels are adequately listed or promoted in, and made accessible from, the guide.

*an electronic programme guide is defined, for the purposes of this clause, in subsection (6) as a service which comprises (i) the listing and/or promotion of some or all of the programmes included in any one or more programme services the providers of which are, or include, persons other than the provider of the guide and (ii) a facility for obtaining access, in whole or in part, to the programme service so far as it is promoted or listed in the guide. This service is to be included in a television licensable content service, a digital television programme service, or a digital additional television service.

640.     For the purposes of these provisions the public service channels are the BBC's television services in digital form, any Channel 3 service in digital form, Channel 4 in digital form, Channel 5 in digital form, S4C digital, and the digital public teletext service. Subsection (4) provides the Secretary of State with a power to amend this list by order though she must not do so without consulting OFCOM.

Clause 305: Conditions to comply with code under s. 304

641.     OFCOM are to include in every licence for a service which comprises or includes the provision of an electronic programme guide conditions to secure the observation of the code provided for in clause 304.

Clause 306: Character and coverage of sound broadcasting services

642.     This clause amends section 106 of the Broadcasting Act 1990 dealing with the character and coverage of radio services. Broadly, OFCOM are to set such conditions as are necessary for maintaining the character of the service. OFCOM may only consent to a departure from the original character if such a departure would not greatly change that character, if the departure would not narrow the range of relevant independent radio services available in the area covered by the service, and in the case of local licences, there is user demand for the changes that the departure would effect of that the departure would be pro-competitive.

*Relevant independent radio services consist of sound broadcasting services, radio licensable content services and additional radio services that fall within the scope of OFCOM's regulatory functions under clause 242.

643.     OFCOM may allow a local licence holder to extend the area to which he broadcasts, but only if such an extension is not significant and is justified by exceptional circumstances.

Clause 307: Local content and character of local sound broadcasting services

644.     Subsection (1) imposes a duty on OFCOM to ensure that local sound broadcasting services contain local content and retain the character of local radio. They must also secure that other connections between each such service and the relevant area are established and maintained. OFCOM are required to draft, publish and maintain a code giving guidance as to when local sound broadcasting services satisfy the requirements of subsection (1) and have regard to the code when carrying out their functions in relation to local sound broadcasting services. OFCOM's guidance may extend to such issues as providing descriptions of local content, the inclusion of locally-made programmes and local advertisements, the employment, training and development of members of the local community and use of local premises. Subsection (7) requires OFCOM to consult with persons having an interest in local sound broadcasting services before drafting or revising the code.

Clause 308: Variations of radio multiplex licences affecting service characteristics

645.     This clause amends subsection (6) of section 54 of the Broadcasting Act 1996 and inserts subsections (6A) and (6B). Upon the request of a radio multiplex licensee to vary a licence condition implementing a proposal submitted in his original application submitted under sections 46(4) or 50(4) of the Broadcasting Act 1996 relating to the number of digital sound programmes services and the characteristics of each service to be broadcast, the timetable for the launch for those services, the broadcasting of digital additional services, the promotion of digital receivers by the listening public, his financial position and his technical plan relating to the service, OFCOM must vary the licence as requested, subject to tests set out in subsections (6A) and (6B).

646.     Section 54(6A) provides that OFCOM may not vary a national radio multiplex licence where it appears that, if the requested amendment were made, the capacity of the digital sound programme services broadcast under the licence to appeal to a variety of tastes and interests would be unacceptably diminished.

647.     Section 54(6B) stipulates that OFCOM may only vary a local radio multiplex licence where they are satisfied that:

  • the variation would not unacceptably narrow the range of programmes available to people living in the areas where the multiplex service is provided;

  • the variation is pro-competitive; and

  • there is user demand for the changes to the services.

Clause 309: Conditions relating to competition matters

648.     Under clause 360, OFCOM will have concurrent jurisdiction with the DGFT to apply and enforce Part 1 of the Competition Act 1998, with the exception of section 38, subsections (1) to (6), and section 51 (which latter provisions apply to the DGFT alone). This means that OFCOM will be able to exercise almost all of the functions of the OFT under Part 1 of the 1998 Act is so far as they relate to activities connected with communications matters.

649.     Clause 309 makes specific provision for OFCOM to have powers, in addition to those concurrent powers under the Competition Act, to ensure fair and effective competition in the provision of licensed services and connected services. This gives OFCOM competition powers specific to the broadcasting sector. Subsection (3) provides that, in ensuring fair and effective competition between licence holders, OFCOM can issue guidance (a code) to licensees on the specifics of how this should be achieved and that they can issue directions to individual licensees for that purpose.

Clause 310: Exercise of Broadcasting Act powers for a competition purpose

650.     This clause applies to OFCOM's Broadcasting Act powers, as defined in subsection (1). Subsection (2) provides that OFCOM should not use the sector-specific Broadcasting Act powers provided in clause 307, where they consider that a more appropriate way of proceeding would be through the use of their general competition powers under the Competition Act 1998.

651.     Subsection (4) provides that where OFCOM have considered that the exercise of their Broadcasting Act powers for a competition purpose is the most appropriate route, the route of appeal against any decisions under these powers shall be to the Competition Appeals Tribunal. Subsection (6) limits the jurisdiction of the Tribunal in any such appeal. This clause does not apply to the exercise by OFCOM of any of their powers under clauses 285 to 289 or Schedule 11 or any of their powers relating to any condition included in a licence by virtue of any of those clauses.

Clause 311: Review of powers exercised for competition purposes

652.     This clause provides for OFCOM periodically to review any guidance or codes or directions that they issue in respect of their Broadcasting Act competition powers and that they must consult on any changes they propose to make.

Clause 312: OFCOM's standards code

653.     Subsection (1) places OFCOM under a duty to set standards for the content of television and radio services, which shall be contained in a code or codes.

654.     These codes should safeguard the objectives set out in subsection (2), such objectives relating to the protection of minors; the prohibition of material likely to encourage crime or disorder; the impartiality of television and radio services; the accuracy of the news; the content of religious programmes; the protection of the public from offensive and harmful material; the prevention of unsuitable advertising and sponsorship; the prevention of undue discrimination between advertisers; and the prohibition of broadcasts of subliminal material.

655.     A particular standards objective relates to responsible religious broadcasting. Subsection (6) expands upon this to safeguard against the improper exploitation of any susceptibilities of the audience or the abusive treatment of the religious views and beliefs of those belonging to a particular religion or denomination.

656.     Subsection (5) makes clear that, while minimum standards will be of general application, OFCOM are also under a duty to set standards for particular types of programme or service (for example, children's programmes) where OFCOM consider that such standards are appropriate to achieve the objectives contained in subsection (2).

657.     In setting the codes, OFCOM are under a duty to have regard to the factors set out in subsection (4) so far as they are relevant. These concern the degree of harm or offence like to be caused by the content of programmes; the probable size and composition of the audience; the expectation of the audience as to the nature of a programme's content and the extent to which it can be brought to their attention; the danger of accidental exposure of a person to content, the nature of which they were unaware; the desirability of indicating when there is a change affecting the nature of the service being watched or listened to; and maintaining independent editorial control over the content of a programme.

658.     Paragraph 40 of Schedule 18 provides that any code drawn up under section 6, 7, 9, 90, 91 or 93 of the Broadcasting Act 1990 or section 108 of the Broadcasting Act 1996 shall have effect as if it were a code issued by OFCOM for the purpose of this clause. However, codes drawn up under the Broadcasting Act 1990 shall only apply to services authorised by licences under that Act and, in the case of codes under section 6, 7 and 9 of that Act, S4C. As regards codes drawn up under section 108 of the Broadcasting Act 1996, these will only have effect for services provided by the BBC or the Welsh Authority and then only to the extent that the codes contain provisions applying to those services and, in the case of the Welsh Authority, which relate to matters other than advertising and impartiality.

Clause 313: Special impartiality requirements

659.     This clause specifies particular requirements, some of which are to be expanded upon by rules in OFCOM's standards code, placed upon service providers to ensure that programmes services are free from bias. The matters to which these requirements apply are political or industrial controversy, and public policy:

  • the service provider must not air its own views on such matters (unless they concern the provision of television or television or radio programme services); as in the 1990 Act, this restriction does not apply to radio restricted service licences.

  • as regards every television programme service, teletext service, national radio services and national digital sound broadcasting services, the service provider must preserve due impartiality about such matters. The relevant rules in the code must particularly take account of the need to preserve impartiality for major matters of political or industrial controversy or relating to current public policy. Fulfilment of this requirement need not necessarily be measured programme by programme, but on balance over all programmes included in the relevant service; and

  • as regards local radio services, local digital sound programme services, and radio licensable content services, the service provider must ensure that undue prominence is not given to any particular viewpoint about such matters. This need be satisfied only by considering the entire service, rather than programme by programme, or even series by series.

Clause 314: Objectives for advertisements and sponsorship

660.     Standards set by OFCOM must ensure that the inclusion of unsuitable advertising and sponsorship in television and radio is prevented. This clause deals with the specific objectives for advertisements and sponsorship. Subsection (1) requires the standards set by OFCOM to include general provisions about the required standards in advertising and sponsorship and permits OFCOM to prohibit advertisements and methods of advertising and sponsorship.

661.     Subsection (2) imposes on OFCOM a duty to secure a general prohibition on political advertising and advertising related to industrial disputes in the broadcast media. This reproduces the duty imposed under the Broadcasting Act 1990 on the ITC and the Radio Authority to secure a similar prohibition. Subsection (7) specifies that an advertisement of a public service nature which is inserted by or on behalf of a government department, and a party political broadcast which complies with the rules for such broadcasts, may nonetheless be broadcast. Unlike the previous rules that the ITC and Radio Authority were required to impose under the Broadcasting Act 1990, the Bill sets out in subsection (3) the matters which are included in the reference to "objects of a political nature" and "political ends" in subsection (2) so as to make clear the scope of the prohibition. These include each of the following: influencing the outcome of elections or referendums in the UK or elsewhere; bringing about changes in the law or otherwise influencing the legislative process in the UK or elsewhere; influencing the policies or decisions of local, regional or national governments in the UK or elsewhere; influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the UK or of a country or territory outside the UK; influencing the policy or decisions of persons on whom functions are conferred by or under international agreements; influencing public opinion on a matter which in the UK is a matter of public controversy; and promoting the interests of a party or other group of persons organised in the UK or elsewhere for political ends.

662.     It is because of the ban that this clause would impose on political advertising that, in the light of the decision of the European Court of Human Rights in the case of Vgt Verein gegen Tierfabriken v Switzerland, the Minister in charge of the Bill was unable to make a statement of compatibility under section 19(1)(a) of the Human Rights Act 1998. The fact that the Minister made a statement under section 19(1)(b) of that Act does not, however, mean that the Government believes the ban would necessarily be found to be incompatible if the ban were to be challenged in the United Kingdom courts or to be considered by the European Court of Human Rights.

663.     More generally, subsection (5) and (6) provide for consultation by OFCOM with the Secretary of State regarding the descriptions of advertisements that should not be included in programme services; and the forms and methods of advertising and sponsorship that should not be used. In addition, the Secretary of State has a power to issue directions (with which OFCOM must comply) on any of those matters.

Clause 315: Supplementary powers relating to advertising

664.     This clause requires all licences related to the provision of programme services, the public teletext service and other teletext services (where either additional television or digital additional television services) to include a condition that the licence holder must comply with OFCOM's directions on the maximum time to be given to advertisements in any given time period, the minimal interval that must elapse between two periods of advertisements, the number of advertisement slots that are allowed in any programme or hour or day, and the exclusion of any advertisement from a specified part of a service.

Clause 316: Modification of matters to be taken into account under s. 312

665.     This clause provides that the Secretary of State, following consultation with OFCOM, may by order modify the factors set out in clause 312(4) to be considered by OFCOM when setting or amending standards codes.

Clause 317: Setting and publication of standards

666.     This clause concerns the procedures for setting the codes containing the standards for the content of television, radio and teletext services. Subsections (1) to (5) deal with the consultation process that OFCOM must enter into prior to setting or revising these standards. Different provision is made regarding the persons to be consulted depending on the relevance of the code to their interests.

667.     Following this process, OFCOM may modify its draft standards code as they see fit in light of the consultation, and must then publish the code. If new standards are being set, or old standards being revised, OFCOM must bring them to the attention of those whom the standards are likely to affect and send a copy to the Secretary of State, the BBC (unless it is a code containing only standards for advertising or sponsorship) and, if the code relates to television programme services, the Welsh Authority.

Clause 318: Observance of standards code

668.     OFCOM are to include in every Broadcasting Act licence for a programme service such conditions as they deem to be suitable in order to safeguard the standards listed in clause 312. OFCOM must also implement procedures for hearing complaints in connection with the non-observance of such standards. OFCOM may report to the Secretary of State periodically regarding issues relating to OFCOM's standards code that appear to raise questions of general broadcasting policy.

669.     Regarding advertising and sponsorship, OFCOM must include a further licence condition obliging the licence holder for a programme service to comply with any direction from OFCOM on the matters set out in subsection (5), all of which relate to the exclusion of certain advertisements or sponsorship.

Clause 319: Duty to observe fairness code

670.     This clause requires OFCOM to include in each Broadcasting Act licence for a programme service such conditions as they consider appropriate for securing observance, in connection with the provision of that service and in relation to programmes included in that service, of the fairness code for the time being in force under section 107 of the Broadcasting Act 1996.

Clause 320: Standards with respect to fairness

671.     This clause relates to the exercise by OFCOM of functions relating to the consideration of complaints regarding fairness and privacy which were formerly exercised by the Broadcasting Standards Commission under Part V of the Broadcasting Act 1996.

672.     A standards complaint under Part V of that Act may not be made after the commencement of this section. This clause amends the provisions in sections 115, 119 and 120 of the 1996 Act relating to the consideration of fairness complaints.

*a standards complaint is defined in section 110(4) of the Broadcasting Act 1996 as a complaint made to the Broadcasting Standards Commission which relates to the portrayal of violence or sexual conduct or to standards of taste and decency.

Clause 321: Duty to publicise OFCOM's functions in relation to complaints

673.     OFCOM are to include in a licence for every service to which this clause applies conditions to ensure that procedures for handling and resolving complaints about observance of standards, including OFCOM's functions under Part 5 of the Broadcasting Act 1996, are publicised. This clause applies to every programme service licensed by a Broadcasting Act licence

Clause 322: Proscription orders

674.     Where OFCOM have notified the Secretary of State that a foreign television or sound service repeatedly contains programmes with content that offends taste or decency, is likely to incite crime or disorder or be offensive to public feeling, she may issue a proscription order where she is satisfied that to do so is in the public interest and compatible with the international obligations of the United Kingdom. Subsection (6) sets out the services to which this clause applies.

    *The meaning of a foreign service is given in subsection (7) and broadly encompasses those services which do not need to be licensed under the Broadcasting Acts 1990 and 1996 but would be if they were provided in the United Kingdom or the provider fell within the jurisdiction of the United Kingdom for the purposes of the Television without Frontiers Directive.

Clause 323: Effect of proscription order

675.     Any service prescribed by the Secretary of State in an order made under clause 319 cannot be included in any multiplex service or any cable package service (as defined in subsections (3) and (4) respectively). The effect of subsection (5) is that the provision of radio and/or television (or similar) services via the internet will not constitute the provision of a cable package service.

Clause 324: Notification for enforcing proscription

676.     Where OFCOM have reasonable grounds to believe that a service proscribed by an order made under clause 322 is included in a multiplex service or cable package, they may notify the multiplex service provider or cable packager accordingly and require that person to cease including the proscribed service. OFCOM must give the notified provider more than 7 days to comply with their request, although he must cease to include the service within 7 days if reasonably practicable. A notified provider has a statutory duty to comply with OFCOM's request, failure to comply with which is enforceable in civil proceedings by OFCOM.

Clause 325: Penalties for contravention of notification under s.324

677.     OFCOM may impose a penalty on any multiplex service provider or cable packager who contravenes a requirement notified by OFCOM under clause 324. Before imposing a penalty, OFCOM must give a multiplex service provider or cable packager a reasonable opportunity to make representations. Any fine imposed must be appropriate and proportionate to the contravention, and in any case may not exceed £5,000 per day for each day (or part thereof) that a multiplex service provider or cable packager includes a proscribed service in contravention of a notification made under clause 324. The Secretary of State may, by order, amend the maximum penalty set out in subsection (3).

Clause 326: Party political broadcasts

678.     OFCOM must include in the licence for every licensed public service channel and every national radio service conditions requiring the licensee to broadcast party political broadcasts and referendum campaign broadcasts and to observe associated rules set by OFCOM. These rules may include provision for determining which political parties and designated organisations may make broadcasts, and how long and frequent these broadcasts may be. OFCOM are subject in this respect to the Political Parties, Elections and Referendums Act 2000 (c.41), and shall have regard to the views of the Electoral Commission. Paragraph 35 of Schedule 18 provides that any rules made by the ITC under section 36 of the Broadcasting Act 1990 or by the Radio Authority under section 107 of that Act, which are in force immediately before the commencement of this clause, shall have effect as rules made by OFCOM under this clause.

Clause 327: Retention and production of recordings

679.     OFCOM are to include in the licence for every programme service licensed under the Broadcasting Acts conditions requiring the licensee to record every programme that they broadcast, and to keep each recording for a specified period (which for radio programmes shall be no longer than 42 days, and for television programmes shall be no longer than 90 days) and, at OFCOM's request, to provide them with any such recording as well as any script or transcript of the relevant programme that the licensee is able to produce. Under subsection (3), OFCOM may themselves make and use recordings of programmes for the purposes of supervision. However, subsection (4) makes it clear that they are not required to vet programmes in advance of their being broadcast.

Clause 328: Conditions securing compliance with international obligations

680.     OFCOM are to include in the licence for every service of the types listed in subsection (3) conditions to secure compliance with such of the United Kingdom's international obligations as have been notified to OFCOM by the Secretary of State.

Clause 329: Government requirements for licensed services

681.     The Secretary of State, or any other Minister of the Crown, has the power by notice to require OFCOM to issue a direction to licence holders to include a particular announcement in their service at specified times. The Secretary of State alone may require OFCOM to direct licence holders to refrain from including any particular matter in their services.

*Subsection (9) makes clear that Minister of the Crown includes the Treasury.

682.     Where a licence holder is obliged to make a particular announcement, they may make clear in their service that this is being carried out further to a direction given by OFCOM. Similarly, where a licence holder has been obliged to refrain from including a particular matter in their services, the licence holder may announce in the service that this is the case, and may also announce when that obligation has come to an end.

683.     The purpose of these provisions is principally to allow Ministers to address matters of national security or major public interest, and to do so in such a way that the affected broadcasters are not required to take editorial responsibility for the content of such directions.

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Prepared: 6 March 2003