Examination of Witness (Questions 360-379)
Mr Jim Murray
6 NOVEMBER 2006
Q360 Chairman: Do your organisation
and the people you represent have in their mind a view of the
future? Is it that they want to maintain certain restrictions
on advertising even if that results eventually in the actual business
model not being capable of sustaining television as we know it?
Where are you coming from ultimately? In other words, you could
regulate the advertising as you want but in the end there is nothing
to regulate because the channels disappear.
Mr Murray: We do not know exactly what will
happen, let us be clear immediately about that, and there is a
possibility that at least in some markets free-to-air would be
under threat. Given the vast amount of advertising revenue which
already goes to the very many channels which we have there will
be change and it may be that there are too many channels out there.
It may be there will be changes of models, though that, of course,
may vary from one market to another within the European Union,
depending on all kinds of other things, so we cannot say that
we have a precise model where we say, "This is what we want
to see all over Europe". To some degree there is a move away
from free-to-air in those cities and regions which rely largely
on cable provision. They are in effect paying. Some of those channels
you could get on free-to-air with an ordinary antenna but there
is already a move away from that. I hesitate to say, "We
do not care about free-to-air", which in itself has great
advantages, but if we look at the situation at the moment there
is almost certainly enough revenue out there from commercial communication,
and maybe from licence revenue too, to preserve a variety of models
without necessarily having to say, "It is Domesday. We must
extend it". One swallow does not make a summer but I just
reflect on the fact that I have signed up to 42 television channels
in a new apartment for €12 a month. Most of them are in a
language I do not understand, let me say immediately, but it is
there and I think €12 a month is less than the BBC licence
fee now; it is certainly less than an Irish one. I cannot say
that there is a precise model out there but we would say let us
not be so worried about the use of the word "threat".
Yes, we do see threats all the time but not quite in the same
way that some broadcasters have seen them.
Q361 Lord Walpole: I am wondering
how much of the question Mr Murray has answered but I will ask
it anyway. Do you agree with liberalisation of quantitative rules
and do you consider the need for tightening of the rules? I know
that it has gone down from 35 to 30 minutes. Do you consider the
proposed rules on product placement and sponsorship adequately
protect the interests of consumers?
Mr Murray: I think the answer to all of those
questions is no. First, take the issue of quantitative restrictions
on advertising. It is here where I want to paint a broader picture,
if I may, and that is to look at the role of commercial communication
in our culture generally, to look back at how it was 20 or 30
years ago and also to think of how it might be in the future because
this is only one small step in what is an overall trend. One of
the difficulties we have in dealing with situations like this
is that we tend to consider them just as a step at a time. For
us the proposal would add greatly to the exposure to commercial
communication, both by removing the quantitative restrictions
and by allowing product placement. I mentioned before this question
that we need more advertising because there are more channels
and there are more channels because we have more advertising and
so on and there is the problem of tuning out, but the real issue
and the one I would particularly ask you to consider is that commercial
communication is more and more a part of our daily culture. It
is a culture as well as simply a means of financing other things.
It is a culture in itself. It is in our schools, it is in our
hospitals and it is in our political work. Party congresses are
very often sponsored. European Presidencies now are sponsored
or consist of activities which are sponsored. I recently attended
a Finnish Presidency meeting at which there were 32 commercial
sponsors, which is the record so far. Obviously, they pervade
our culture, our sport, our entertainment and our hospitals, as
I know from my own direct experience although people told me I
should not have noticed it. In a labour ward the changing mats
are sponsored by a particular nappies company. Among certain kinds
of so-called celebrities we are now familiar with sponsored weddings
and sponsored births, it seems. We have not yet had a sponsored
funeral but it may not be long before Hello is invited
by somebody to share their grief at this bad moment in their life.
From our point of view this is changing our culture and it is
also changing our relationship to consumption. We are a consumer
organisation and we strongly believe in consumer choice and all
of those things, but we do not believe that consumption s the
end of life. All of this does in a cumulative way influence content.
Even if there is no direct contract between sponsor and advertiser
and the broadcaster or producer of a programme, overall the process
and the way in which we are commercialising all our life has its
effect. This is particularly the case, of course, in relation
to children where they are surrounded by commercial communication
and by a culture of commercial communication everywhere. I do
not know enough about this but concerns have been raised in the
UK about childhood and the shortening of childhood and so on.
In a vague kind of way—and I cannot say this is a form of
submission—it seems to me that there is to some degree a
connection between the fact that children are growing up in a
culture which is totally pervaded by commercial communication..
It is why, for example, in one area we certainly want to see a
tightening of the rules, and that is in relation to the advertising
of certain foods to children. We are quite clear now about this.
We would like to see a ban on the advertising of certain foods,
foods high in salt, sugar or fat, to children, not just in children's
programmes but also in the other programmes up to, I suppose,
a watershed time, which make up something like 70 per cent of
children's viewing. This is not at all to argue that commercial
communication is the root cause of obesity or a bad diet; of course
not, but what it does is add pressure on parents who are already
under pressure. All parents' decisions about food are compromised
very often between what the child wants and what the parent thinks
is right and the time available and so on. In work done in particular
by our UK member when they have carried out focus group discussions
with parents commercial communication is identified as a very
strong source of pressure in this area. For us it is not that
commercial communication makes children fat; it is that it makes
it harder to be a good parent, and it makes it too hard at the
moment in our view to be a good parent. That is why we would like
to see—it is not in the Commission proposal but we still
have hope that something may come through the Parliament—a
ban on the advertising of snack foods. In itself it will not solve
everything but it will be at least a way of shouting "Stop!"
against this wider trend that we have talked about where commercial
communication is just more and more part of our culture and where
we can hardly ever get away from it. Yes, we need a tightening
of the rules there. On product placement, it is in large measure
hidden advertising. Ten or 20 years ago it would have been held
immediately to be in breach of the International Chamber of Commerce
rule on separation of advertising and programme content; there
would simply have been no doubt about it, but that principle has
been elided over the years because it became convenient to do
so. I do not know if you have seen them, but I have brought some
DVDs from the Writers' Guild of America who are also opposed to
product placement for their own reasons, some of which coincide
with ours, so they have sent us some examples of what can happen.
In our view something like this, although it would not be the
same, of course, could happen here.
Q362 Baroness Eccles of Moulton: Who
is it who is opposed to product placement?
Mr Murray: The Screenwriters' Guild of America.
They find that they are being asked to change the script, for
example, to suit the product placer or sponsor or whatever. You
will see one there in particular where it is important that all
the characters in the situation comedy should eat only a particular
brand of biscuit but also should play with the biscuits and say,
"Oh, isn't this nice?", and so on. The writers were
required in effect to incorporate this into the script. They also
have some worries about royalties but that is a different question.
In looking for a tightening of the rules against that wider background,
do we simply, as most people do, say, "Oh, isn't it terrible,
all the advertising at Christmas, Halloween, here and there and
everywhere?", do we simply shrug our shoulders and say, "It
is inevitable, it is the way of the world, it cannot be helped,
we must not complain", or do we say, "Wait a minute:
what kind of world do we want? What kind of daily culture do we
want?"?
Q363 Chairman: Given the draft as
it currently stands, that is, the 20 October one, what tighter
rules would you like to see? You are not happy with product placement.
Are there any rules that you would like to see tighter than in
the current draft?
Mr Murray: In product placement one has to distinguish
the good end where nobody wants to stop somebody from mending
a sofa to a theatre production or something like that.
Q364 Chairman: Which they can do
now.
Mr Murray: Which they can do now. Donations
of what are termed production aids or something like that we would
see as fine, but there should not be payment for showing the product
and any agreement on content in return for the supply of a product
should flatly be declared to be illegal. This is in the directive
itself.
Q365 Chairman: What about sponsorship
of programmes and the amount of advertising per hour and the breaks
between? Are you content with the draft as it now stands?
Mr Murray: Because of the wider issues which
we have talked about we would prefer not to liberalise advertising
at all—
Q366 Chairman: But maintain the position?
Mr Murray:— but maintain the position.
Talking to broadcasters, they have spoken about some room for
some slightly different arrangements but not to the extent that
they increase the level of commercial communication and so on.
They do not want to be absolute about it, not to that extent,
but shifting advertising from times when people do not watch to
times when they do is exposing more people to more advertising,
even though quantitatively you can say there are exactly the same
number of minutes. One has to be careful about that. We are working
with the Parliament at the moment on some quite specific amendments
that we have proposed to members of the Parliament, with what
success I have to say remains to be seen, because we are coming
from a long way back. We are trying to put something particularly
on children into the directive which is not at all proposed by
the Commission, so what success we have remains to be seen but
I would be happy to make some of those available to the Committee.
Chairman: That would be very helpful.
Q367 Lord Fearn: Concerning illegal
or harmful content, do effective mechanisms exist to control the
type of illegal content identified in the proposal, such as race
hatred? Is the proposal likely to substantially enhance restrictions
on freedom of expression?
Mr Murray: That is a more difficult one when
we are talking of areas outside purely commercial communication,
where restrictions that are accepted on commercial communication
are not accepted on the expression of private opinions. One always
has to draw a distinction between these two and that is accepted
even under the First Amendment of the American Constitution. As
a consumer organisation we are not really very competent to talk
about how to regulate the expression of race hatred. Normally
it is not something that is done for a commercial purpose. I remark
in passing that it is obviously a difficult one because it is
something which in the end is going to have to be enforced by
Member States and they may have a different view of it, as is
clearly the case at the moment. I express no views on whether
it was right for Germany or not, but clearly to deny the Holocaust
is not an offence in Ireland, so there are different views about
it and, as I said, it rather extends beyond our core area, which
is the relationship between commercial operators and consumers.
Q368 Chairman: The E-Commerce Directive
has certain obligations upon on-line providers of services, has
it not, outside of this?
Mr Murray: Yes.
Q369 Chairman: We did not give you
notice of this, so you may reasonably say that you need time to
reflect upon it, but insofar as the E-Commerce Directive had certain
obligations upon internet providers, did that directive provide
adequate safeguards against harmful content and so on as far as
your organisation is concerned? I am not here talking about advertising.
Mr Murray: I am not aware of it having been
an issue.
Q370 Chairman: You did have notice;
I apologise.
Mr Murray: This may be my fault, so to speak,
but I have not heard of it as being a special issue. Again, it
is something which depends very much on the national culture.
Lord Walpole: Does the imposition of
quotas for European works and independent productions adequately
meet the demands of European citizens for diverse and local content?
Q371 Chairman: Or, put another way,
does your organisation regard this as something that is important
to consumers or is that a matter for Member States to be bothered
about?
Mr Murray: It is largely for Member States.
We would be concerned about the possibility that minority groups
would be deprived of some of the choices they should have in a
purely unrestricted market, but, given that we are not always
happy about protectionism in the wider sense, this is something
that I have some misgivings about. The idea of preserving choice
and particularly preserving choice for minorities if that cannot
be done in the market we would absolutely be in favour of.
Q372 Lord Walpole: I ask this one
particularly because in the block of flats that I live in we do
have a very wide range of television programmes available, obviously,
in Arabic and Chinese and all that sort of thing. It is a question
of whether they are European or independent. The inhabitants of
the flats want them, do they not, and if they were banned in any
way some of them would want some of them?
Mr Murray: They may come in a package.
Q373 Lord Walpole: Yes, I think they
do come in a package. You have just bought yourself one.
Mr Murray: As I said earlier, I am getting 42
channels and I only want six of them, but it is nice to have the
others. It is also a question, but this very much extends outside
our remit, of preserving an industry or something like that. This
may well be a legitimate thing to do but it is a difficult thing
for us, particularly when we use the word "demand",
because if there is a demand there may well be a supply. It depends
on the level of demand. That will vary also. Our French members
would, I think, answer, "No, it is not enough and we want
more, more, more". We tend to be somewhat sceptical about
anything which implies a privileged position, whether it is for
farmers or for business.
Q374 Chairman: You are the first
witness who has managed to bring the common agricultural policy
into our inquiry. Only an Irishman could achieve that.
Mr Murray: It is called biting the hand that
feeds you.
Q375 Chairman: Indeed! Now is a good
time for Ireland to say that it is about time it finished.
Mr Murray: I have no objection to that!
Q376 Baroness Eccles of Moulton: On
the subject of the Country of Origin Principle you have some quite
strong words in your position paper, particularly relating to
material that originates in another Member State and also on the
question of non-linear services. In your opinion has the principle
been beneficial or harmful to consumers? Do you consider it appropriate
to reconsider this principle and would you also favour greater
harmonisation between Member States for a reduction in Member
States' discretion regarding implementation?
Mr Murray: It is difficult. First of all, the
Country of Origin Principle is obviously a practical one because
it is very difficult to maintain any other, so generally speaking
it would be the Country of Origin Principle. There are a number
of areas, one of which we will have to exclude immediately and
that is the question of the rights of consumers who are dealing
with something from another country. That perhaps is something
we dealt with in e-commerce, so I will leave that out for a moment.
It is a different kind of thing. The real difficulty here is to
what extent may a Member State maintain, for good non-protectionist
reasons, its own traditional standards, particularly again in
relation to children. I suppose the most obvious example of that
is the Swedish case. There have been other examples but I think
in the Swedish case nobody would seriously argue that the restrictions
which they wish to maintain arose from a purely protectionist
instinct, to stop people buying non-Swedish goods. That argument
has been made about the Greek case, that it is protectionist in
intent, although I do not know about that, but certainly in the
Swedish case it has not. It is an odd question. To some degree
it is to do with the question of subsidiarity, not as a legal
principle because that is quite narrowly defined, but as a general
principle. When it was first introduced I noted that in the UK
it was seen as something to stop Brussels from interfering, but
in the Nordic countries it was seen more as maintaining freedom
to do their own thing and stopping Brussels stopping them from
doing their own thing. In the UK it was, "Now Brussels cannot
tell us to do something", but in the Nordic countries it
was, "Now Brussels cannot stop us from doing something which
we were doing before". The UK analysis was correct, by the
way. The only thing the subsidiarity principle does is stop the
European Union from doing something. It does not per se
give Member States any increased competence. This is the issue
and, representing as we do a diverse group of consumers, in many
cases from countries which have tended to be more restrictive
than the UK, not just in this area but in many other areas as
well, their plea is, if I can put it crudely, "We do not
want the UK model imposed on us", whether it is financial
services or advertising or whatever. This is at the root of it,
and yet we would also accept that many of the claims for particularity
that individual Member States have made, claiming that they do
so in the interests of their consumers, are in fact simply protectionist.
We are well aware of Member States saying, "We are doing
this for consumers", when, of course, they are not.
Q377 Baroness Eccles of Moulton: What
about the non-binding proposal in the latest amended directive
that there should be a process of co-operation between the country
that is having the material transmitted from it and the country
that is receiving it? That should perhaps solve the problem of
teddy bears?
Mr Murray: I do not know if I am supposed to
officially know about this one or not, but—
Q378 Chairman: Knowing whether you
have actually read it and fully understood it would be helpful,
but you may not have known about it. We have only just had a chance
to look at it in the last few days.
Mr Murray: Would it work? The question is to
what extent can a Member State for a good cause say, "Look:
we insist that anybody broadcasting to our market, certainly in
any quantity, should respect certain of our cultural views or
our tradition or whatever", and none of them is a Saudi Arabian
culture, but there are differences and it is the subversive end
that we are talking about. I do not have an easy answer. I am
not sure whether in itself it might work. It might need some form
of umpire, if I can put it that way, to judge when the demand
of a Member State is appropriate or not because otherwise, if
it is purely voluntary, you could have France or Sweden or whatever
coming to you all the time and saying, "Please stop this",
or, "Please stop that". Whether those matters could
be solved bilaterally I do not know.
Q379 Baroness Eccles of Moulton: But
you believe in the principle as a principle?
Mr Murray: Yes. It is part of respect for the
autonomy and culture of individual Member States though it can
be very difficult to apply in practice. It is a principle that
by and large would have very little application to UK or Irish
consumers because the regimes are relatively liberal there. It
might happen in Ireland where there is increasingly a move for
more restrictions on the advertising market, but is the Dublin
Government going to go to ITV and say—
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