House of Lords - Media convergence - Communications Committee

Media convergence - Communications Committee Contents

Chapter 2: Content standards—the challenges ahead

12. The UK's content standards framework has to date proven remarkably resilient. Through a complex system of regulation and incentives, publicly accepted standards are, by and large, understood and upheld, and a more or less settled balance between public, legal and regulatory responsibility has been secured.

13. However, meeting the public's expectations, or even being particularly clear about what those expectations are, is becoming increasingly difficult. To a great extent, these difficulties come down to convergence. Its impact is raising a number of challenges for the model on which content standards regulation has been based. This model is shown in Figure 1 below.

14. The issues are complex and diverse, ranging from potential erosion of trust and confidence in some media, and potential harm to children, to outmoded and possibly unnecessary regulation too slow to adapt to changing markets and public expectations. In our analysis, however, these issues can be collapsed down to two core challenges which lie ahead:

Challenge 1: As convergence develops, what changes, if any, are needed to the regulatory framework covering more conventional audio-visual content provision (for example TV and TV-like services),[11] to ensure, above all, that public expectations about content standards for those media continue to be met?

Challenge 2: What is the best way to provide a safer environment for content of all types accessed via the internet, especially where likely to be harmful to children or where other threats to society are posed?

15. Underpinning the debate in both cases is a broad question about the philosophy of media regulation, particularly given the changes brought about by convergence: should we adopt a more libertarian approach, in which the public is expected to make its own choices about which media and content to use, informed by appropriate information; or a more paternalistic approach, in which regulators impose certain standards and help make those choices on behalf of the public? As a starting point, this chapter sets out the challenges which any new approach to content standards must address. The following two chapters will elaborate on our own view of the right way to proceed and the balance to be struck between these two different schools of thought.

FIGURE 1

Overview of the current UK framework for content standards regulation[12]

Challenge 1: The content standards framework

16. Until recently, separate media industries were distinguishable by the way they delivered their content. To a great extent, for example, newspaper businesses were newspaper businesses because their content reached audiences on large sheets of thin paper, rather than over electromagnetic spectrum or through the flickering light of a projector at the cinema.

17. By and large, the regulators of each of these industries continue to be distinguishable as if this were still the case; their standards codes generally hold sway over a single technology, or rather the content providers who happen to use it.

18. Technology, however, provides a decreasingly reliable way of defining the boundaries of separate media industries. Alongside their unique historical delivery mechanism, content providers increasingly make use of internet protocol (IP). Conveyed via IP, content reduced down to packets of data can be assembled as text, image, video, sound or however else technology allows, and can do so on a growing range of devices, fixed and mobile.

19. Consequently, not only are the technologically defined crosshairs in regulators' sights proving increasingly off-target over time, but the sharp boundaries between separate media industries are starting to fade, perhaps along with the public's sense that each one should be expected to obey a distinct code of standards.

20. Certainly in the short term, convergence has put the logic of the 'one delivery mechanism—one industry—one regulator' model under strain. The longer-term prospect, though, as IPPR, the Institute for Public Policy Resarch, wrote in evidence is that "if these trends continue, as most analysts expect, the distinctions between our current regulators could soon become as meaningless as the distinctions between the media they seek to regulate."[14]

21. We have heard proposals for far-reaching reform which would tidy up the regulatory structure and address the emerging tensions. In particular, models put forward by Tim Suter,[15] IPPR[16] and Lara Fielden[17] acted as a useful catalyst for our thinking. It is a truism in the media, however, that the future is impossible to predict and major structural changes may have countless unforeseen effects. In considering the various proposals for overhaul to the framework, we were aware that what appears consistent and tidy today could potentially leave us in unexpected difficulty tomorrow. We came to the view, therefore, that consistency and tidiness are not to be prized for their own sake. In considering reform to the content standards framework, we should not try to set a course for the promised land. Rather, we should look more simply for a framework which enables audiences to make good decisions about the content which suits them and their families. The framework will need updating to the extent that it fails to facilitate their ability to do this, and fails by extension to earn or deserve their trust.

22. Whether audience trust is already at risk is a matter of debate,[18] but the fluidity of change is uncontested; dramatic developments in media industries and audience behaviour will continue to run on in the wake of convergence; and the coherence of the content standards framework and audiences' confidence in it, left as it is, will likely erode over time.

23. These risks exist across all the media encompassed by the content standards framework: broadcast TV, radio, premium rate phone services and more. However, evidence to this inquiry has shown these effects to be most in need of attention in two areas: 'TV-like' content (see Box 1 below); and the provision of news. Our focus, therefore, has been on those.

BOX 1

TV-like content

'TV-like' is a useful concept established in the European Commission's AVMS (Audiovisual Media Services) Directive,[19] but not one which is easy to summarise. The purpose of the concept, however, is relatively straightforward: to create a shorthand for a category of audiovisual content which is neither broadcast on a linear channel, and therefore currently expected by audiences and obliged by regulators to comply with a comprehensive standards code, nor barely watched user-generated content which is neither expected nor obliged to comply with any national regulatory code. It establishes a useful category in between the two, albeit one which is difficult in its own terms to define. Examples include content on YouTube channels such as 'Jamie Oliver's Food Tube' and 'Bad Teeth'; channels made available through special interest websites such as 'Motorcycle News TV' and 'Manchester United TV'; but also other examples of audiovisual services which could fall into the definition of TV-like but which may not yet have been developed.

Audiences do have reasonable expectations of the standards upheld by providers of TV-like content but, as Ofcom noted in their evidence to us, it "is seen to be different from broadcasting content and people have generally lower expectations about regulation in this area."[20] For the purposes of the framework for content standards regulation, therefore, TV-like as an intermediate category must be defined; and this has left regulators, the world over, grappling for neat, practical wording.[21] The AVMS Directive itself defines it across 9 recitals (21-29), not particularly neatly, but given the evolving nature of the boundaries of this category, in a way which is suitably open to interpretation over time. In its terms TV-like providers are defined by the fact: "that they compete for the same audience as TV broadcasts, and the nature and the means of access to the service would lead the user reasonably to expect regulatory protection within the scope of this Directive."[22]

24. Starting with converging audiovisual (TV-like) content, the most thorough recent research into UK audiences provides a salutary reminder that the public are, generally speaking, not regulatory experts. To say the least, "few were well-versed in the details of how regulation works in practice."[23] Certainly, there is no evidence to show that audiences pause to consider the way content happened to reach their screens, asking themselves which regulatory authority and code applies.

25. Instead, the public's expectations of standards are generally based on relatively informal inferences drawn from a feature of the environment, the content provider's brand or from an aspect of the interface. For example,

26. In an era when all audiovisual content on the TV set was broadcast, basing expectations of content standards on these rules of thumb was relatively unproblematic; they provided intuitive shortcuts likely to lead to the correct expectation. In the converged era, the reliability of audiences' inferences will diminish, leading to potential confusion and erosion of trust.

27. A similar risk may emerge in the area of news provision. Broadcast news is required to adhere to the Broadcasting Code with its full range of protections relating to accuracy, fairness as well as an obligation to uphold due impartiality. While the successor to the PCC (Press Complaints Commission) with oversight of participating newspapers and news websites, may well include some of these protections in its code, it will certainly not include an obligation to uphold due impartiality.

28. The abiding difference between the balanced, impartial news provided by the broadcasters and the vigorous partisan news provided by the press has helped to create a valuable mixed ecology.[26] However, the impact of convergence means that the providers of each will become increasingly difficult to distinguish from each other. The binary distinction between impartial and partisan news will no longer be mirrored in the difference between news which UK audiences watch, and news which they read.

29. As IPPR put to us:

30. In sum, convergence raises challenges for the sustainability of the UK's framework of content standards. In particular, it brings into question the sense in distinguishing between broadcast TV and non-broadcast, TV-like content on the basis of the different technologies used to distribute them. The direction of travel clearly points to a world in which these differences become very difficult to discern and may in fact become irrelevant in UK audiences' decisions about what to watch. To this extent, under a framework based on these distinctions, audiences will face increased confusion about the standards they can expect when accessing content, with a risk to the trust and confidence they have more generally in the media they use.

Challenge 2: Standards for content available over the internet

31. A second set of challenges to the content standards framework arises from content available over the internet which some have described as the 'wild west'. While conventional audio-visual content is required to meet agreed standards in areas such as harm, offence, fair treatment or protection of children, much content delivered over the internet faces no such constraint. Regulatory bodies with responsibility for content standards in the UK gain their ultimate leverage over content providers and distributors from a source of authority grounded in, but limited by jurisdiction.[28] The concerns arise, therefore, because convergence is increasingly exposing ways in which jurisdictional controls are possible to bypass.

32. As an example, a UK-based provider of legal adult video on demand content would be obliged to put that content behind access controls, restricting it from audiences unable to verify their age as appropriate. However, the UK regulator of on demand video content, ATVOD (Authority for Television on Demand), told us:

33. Concerns about content accessed online are not limited to its potential harm to children, or its detriment to adults' ability to bring accurate expectations to content. For example, the promotion of terrorism is also a concern, particularly in languages unfamiliar to those who might report it to the authorities. Equally, the promotion of terrorism by individuals beyond jurisdictional reach may increasingly require Governments to cooperate across borders in the enforcement of their respective criminal law. Altogether, this is an area that deserves careful consideration and we note that a number of potentially useful recommendations were made in a recent report published under the auspices of the Clean IT project and the European Commission.[30]

34. More broadly, that content available over the open internet is an important issue is underlined by Ofcom's 2012 Children and Parents: Media Use and Attitudes Report[31] which shows the extent to which younger cohorts are consuming content over the internet, and the trend lines point in only one direction:

"While children aged 5-15 continue to spend most time watching TV, children aged 12-15 are spending more time online (rising from 14.9 hours a week in 2011 to 17.1 in 2012) and now spend as much time in a week using the internet as they do watching television. They are also more likely than they were in 2011 to mostly use the internet in their bedrooms (43% in 2012 vs. 34% in 2011). Children who use the internet mostly alone comprise one in seven internet users aged 5-7 (14%), one in four aged 8-11 (24%) and over half of those aged 12-15 (55%)."

35. These challenges, however, should not be assumed automatically to require some form of regulatory approach. First, for some, the lack of regulatory influence is a defining, and altogether positive characteristic of the open internet, establishing previously unknown opportunities for free speech. Indeed, research suggests that UK audiences are aware of the need to strike a balance between regulation and free speech, and would certainly not want to see standards upheld at any cost. This research conducted for Ofcom in 2012 shows that they:

36. Second, characterisations of the internet as a lawless 'wild west' are not entirely accurate. So long as there is a jurisdictional handle, content providers in breach of UK criminal and civil law are subject to their provisions, however they distribute their material. Hence it follows that those writing and publishing online who fall within jurisdictional reach must recognise their responsibilities and liabilities. Indeed, action is currently being taken in cases involving individuals having made allegedly defamatory remarks on social media;[33] and the Director of Public Prosecutions has just closed his consultation on guidance to prosecutors in such cases.[34] His final guidance document will clarify the balance between freedom of expression and the need to uphold the law, and the need to strike a balance must not be understated, but it will not alter the fact that, so long as there is a jurisdictional handle, the criminal and civil law can be brought to bear on those who break it when communicating over the open internet.

37. Third, while illegal content provided by those beyond UK or European jurisdictional reach is accessible, UK audiences often do not have great interest in it. As Ed Richards, Ofcom CEO, told us, of all content currently consumed by UK audiences, the material beyond all UK or European jurisdictional controls represents perhaps:

38. Given these factors, it seems to us that the set of challenges generated by content distributed over the open internet arise not only from concerns expressed by some about exposure to unwelcome or harmful content (and the weakening jurisdictional leverage which allows this to happen), but also from the competing pressures to be taken into account in addressing such concerns, including for example:

· Variations in public expectations;

· Striking the right balance between regulation and free speech;

· The public's appetite for personal responsibility;

· The reach of existing UK law;

· Proportionality;

· Practicalities and costs.

39. Taking these difficult competing pressures into account does not amount to an excuse for inaction. This is an undeniably contentious area and legitimate concerns should not be ignored, particularly when they are only likely to grow.