Chapter 2: Content standardsthe
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
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),
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.
Overview of the current UK framework for content standards regulation
Challenge 1: The content standards
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
"Standards are linked to an accident of
delivery platform," as Lara Fielden put 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 mechanismone industryone
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
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
and Lara Fielden
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
22. Whether audience trust is already at risk
is a matter of debate,
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.
'TV-like' is a useful concept established in the
European Commission's AVMS (Audiovisual Media Services) Directive,
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
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."
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,
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."
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."
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,
"when introduced to the concept of a converged
device such as a connected TV
their expectations for regulation
partly determined by the screen used, such as a large
shared screen in [the] living room versus personal PC or device,
but also by the comparative ease of access to audio-visual content
through a one-touch button or seamless link to VoD, compared to
searching and choosing content via a web browser."
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.
"Accessed via a PC, smart phone, and tablet
devices, regulated and unregulated content, licensed and unlicensed
services, are becoming impossible to differentiate. With the advent
of internet-connected TVs they sit side by side on the living
room TV, fuelling the potential for consumer confusion over whether
the content with which they engage is regulated and, if so, to
what extent and by whom."
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
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:
"Consumers are switching between different
types of content from different sources on the same device and
will increasingly be unaware that even though the content looks
the same, different standards of regulation apply. For example,
a broadcast news service delivered to a television and a video-based
online news service delivered to a television may come (in time)
to look the same, but different standards of regulationfor
example over accuracy and impartialitywill apply. This
raises the potential for consumers to be confused and for their
expectations of the standards that apply to the content they are
viewing to be frustrated."
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
The concerns arise, therefore, because convergence is increasingly
exposing ways in which jurisdictional controls are possible to
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),
is that most of the
hardcore porn that can be seen by children is not regulated within
The provider of one of the services that
was fined before Christmas
sold that service
it is now being provided from America."
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.
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
which shows the extent to which younger cohorts are consuming
content over the internet, and the trend lines point in only one
"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:
"were less concerned that the open internet
should be regulated in the future
on the basis that people
should be allowed the freedom to produce and choose to view all
different types of content, and the responsibility of sourcing
content from the internet lies with the individual."
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;
and the Director of Public Prosecutions has just closed his consultation
on guidance to prosecutors in such cases.
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
"a couple of percent and, frankly, my view
of that is you do not need a sledgehammer to crack a nut
do not create an architecture, which is a big cost, a big overhead,
which is going to struggle with jurisdictional issues because
some of them will be being run from God knows where. Just accept
what it is, which is a minority pursuit
help parents take
responsibility for it, make sure that in extreme cases, like child
pornography, you can deal with it
but otherwise let it
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;
· 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.
- We will elaborate on our response in Chapter
11 For a definition of TV-like, see Box 1 on p 14. Back
A glossary of the acronyms used in this figure and elsewhere in
this report is contained in Appendix 4. Back
Lara Fielden Back
Tim Suter, an expert in media policy and regulation. Back
Lara Fielden Back
Indeed, our Report was triggered, in part, by a desire to help
reach one. Back
Directive 2010/13/EU of the European Parliament and of the Council.
Taking a unique approach, the Australian Convergence Review, for
example, identifies the crucial feature of content in which audiences
expect standards to be upheld as 'professional media content'
provided by 'significant media enterprises.' Its report is available
online (March 2012): http://www.dbcde.gov.au/__data/assets/pdf_file/0007/147733/Convergence_Review_Final_Report.pdf Back
Directive 2010/13/EU of the European Parliament and of the Council.
Ipsos MORI, Protecting Audiences in a Converged World,
January 2012. Available online:
Lara Fielden Back
The Guardian, 'Leveson debate: TV-style regulation is not
going to screen out all the problems', 3 February 2013. Available
See Appendix 1 Back
QQ 617 and 623 Back
Clean IT Project, Reducing terrorist use of the Internet,
January 2013. Available online:
Ofcom, Children and Parents: Media Use and Attitudes Report,
October 2012. Available online:
Ipsos MORI, Protecting Audiences in a Converged World.
January 2012. Available online:
BBC Online News, 'Twitter users: A guide to the law,' 26
February 2013. Available online:
Crown Prosecution Service, 'DPP launches public consultation on
prosecutions involving social media communications,' 19 December
2012. Available online:
Q 609 Back