House of Lords - Media convergence - Communications Committee

Media convergence - Communications Committee Contents

Chapter 3: A new content standards framework

41. We set out in Chapter 2 our view that the impact of convergence is raising two core challenges for the model on which content standards regulation has been based. The first of these, which we address in this chapter, comes down to the collision of two phenomena:

· A framework of standards for broadcast TV and for non-broadcast, TV-like content, made distinct on the basis of the different technologies used to distribute them

· The emergence of 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.

42. While the trend towards greater consumer confusion at the hands of convergence points in only one direction, the evidence to us has been persuasive that the existing framework has not yet reached breaking point. This evidence comes down to:

· an acknowledgement that the emerging incoherencies are yet significantly to disrupt audiences' ability to form accurate expectations of content standards across different media;

· the fact of continuing public value in retaining certain elements of the existing content standards framework;

· a pragmatic acceptance that the regulatory settlement for the print media is so much in flux that further recommendations for change in the immediate future would probably be unhelpful.

43. To elaborate just on the first of these points, Ofcom's evidence, for example, emphasised that:

44. The growing but still relatively small proportion of viewing which counts as TV-like rather than TV content itself is shown in Figure 2 below.

FIGURE 2

Average minutes of TV viewing per day by type[37]

45. Moreover, the great majority of TV-like content they do see is currently previously broadcast material, specifically made available to allow audiences to catch up with the linear schedule. As a result, it will in all likelihood comply with the comprehensive standards contained in Ofcom's Broadcasting Code even though, strictly speaking, it is not under that obligation.

46. Of course, as penetration of connected TVs grows and the TV-like content industry matures, content subject to lighter and even no real regulation will be increasingly available alongside catch up services. While linear viewing will retain the largest share of total viewing for some time to come, the reach of TV-like content will continue to extend; and it is likely that, soon, most viewers will use both TV and TV-like services in a typical week, just as the reliability of their rules of thumb for distinguishing between the two starts to decline. This raises the prospect that confusion will become a more pressing issue.

47. At present, this is only a medium term prospect. For the time being, broadcast regulation can continue to co-exist with both on demand and press regulation without disrupting audiences' ability to build accurate expectations about the content they encounter

48. In a nutshell, therefore, our view is that the need for the framework as a whole to undergo a redesign is not immediate. However, it remains likely that this need will become more pressing in the medium term and what is more, a great deal of consensus already exists about the direction of travel and, on that basis, what the redesign will necessarily involve.

49. With this in mind, we put forward a two-stage approach, reflecting that:

· There is a role for some sensible but relatively modest changes to be made immediately, while keeping the core of the current content standards framework, and its legislative foundation, intact;

· Looking further into the future, provision also needs to be made for the regulatory framework to evolve and adapt in response to the issues likely to be aggravated by convergence, in particular the ability of audiences to build accurate expectations of content and the trust they place in the content standards framework they rely on to do so.

Stage 1

50. While keeping the core of current content standards regulation in place, however, there is a role for some sensible clarification within the existing framework in the short term. Two relatively modest changes would include the following:

51. First:

Broadcast licences should be amended to ensure that standards similar to those set out in the Ofcom Broadcasting Code, amended for the relevant environment, would apply to any service using the same channel name or brand as a licensed broadcast service.

52. This clarifies a minor anomaly in current standards regulation: the website, mobile and video on demand content provided by broadcasters is not subject to the Broadcasting Code. In practice, because broadcasters know that audiences expect "a consistent level of regulation for the same branded services across [different] ways of accessing content,"[38] they generally ensure that all of their content is Broadcasting Code compliant. In addition, because most of their on demand content is made available so that audiences can 'catch up' with the linear broadcast schedule, it is generally compliant with the Code as a matter of course. An argument can be made, however, particularly as broadcasters begin to premiere content through their on demand platforms,[39] that it would be sensible to ensure compliance with the Code is guaranteed through regulation rather than left up to the coincidence of on demand and catch up, or to the strength of broadcasters' respect for brand consistency.

53. Second, there is a case for positively encouraging other (non-broadcast) providers to join in this framework:

Ofcom should investigate the option of non-broadcast providers of TV-like services, such as Netflix and the content providers mentioned in Box 1, being invited to comply with an appropriate set of standards (the Broadcasting Code suitably amended for their environment) in return for some form of public recognition or kitemark.

54. Of course, broadcasters are not the only players in the audiovisual sector. Although non-broadcasters have no obligation to adhere to the Broadcasting Code, they may uphold high standards in order to gain audiences' trust and build a competitive advantage on that basis. There may be mutual advantage, therefore, in the UK content standards regime providing them with an incentive to adhere voluntarily to standards in the Broadcasting Code, suitably adapted for their environment, such as on demand. A kitemark, for example, might be of value to non-broadcast audiovisual content providers, particularly those seeking to establish their credentials with UK audiences.

Stage 2

55. In the longer term, the pressure for changes to be made to the content standards framework will gather momentum. As Ofcom CEO, Ed Richards, told us in his evidence:

56. A significant degree of consensus appears to exist over the broad outline of a future framework. Building on this consensus, we will present our own model. As we set out above, this does not aim for consistency or tidiness for its own sake. Instead our intention is to set out the next evolutionary stage of the content standards framework as we see it, responding to the challenges described in Chapter 2, and in particular to highlight some of the changes ahead which can only be enabled through legislation.

57. Our proposed framework consists of four separate regulatory 'areas', delineating different regions of the UK's future converged media landscape as we see it.

Area 1: Public Service Broadcasters (PSBs)

58. The most straightforward area in the framework requires no regulatory or legislative change. It contains the public service broadcasters. In this area we suggest that comprehensive regulation and enforcement of the Broadcasting Code should be retained.

59. No evidence we have received during this inquiry has dissented from the view that, as an absolute imperative, a group of major content providers such as the PSBs should continue to uphold a very high and comprehensive set of standards. In doing so, they play a fundamental role in the broader UK content standards landscape, providing the assurance of trusted content as well as setting a benchmark to which other content providers can aspire, and against which consumers can compare them. Public service content provides a clear reference point, ranging across children's content, drama and entertainment and extending all the way to the provision of balanced and impartial news.

60. Admittedly, there was some discussion during the inquiry about whether regulation was itself the guarantee of high content standards or whether the PSBs' motivating force came from elsewhere. For example, Tim Suter, put it to us that:

61. However, while this proposition might be correct (and one day might be proved to be so), there is little real argument for gambling on it now. The number and range of PSBs could conceivably change over time, but the existence of a category of providers of public service content is reasonably assured; and these providers will continue to receive funding, guaranteed prominence or other forms of public support, on which certain obligations can continue to be made conditional. As the impact of convergence works its way across the media landscape, this will mean, as we discuss later, that the role played by the PSBs will in some aspects grow rather than decline in importance. This is not a time to gamble. As IPPR put to us:

62. Even as other areas may inevitably undergo a certain amount of steady, managed deregulation, PSBs, supported by their stricter regulatory code, should be expected to guarantee high and comprehensive standards in the converging media mix.

Area 2: TV and TV-like content (non-news)

63. The second category in our suggested framework establishes a new regulatory area. Overseen by a single body, this area would contain TV-like content providers irrespective of their platform as well broadcasters without PSB status.

64. There are three principal reasons for establishing this second regulatory area:

· To respond to convergence, and remove scope for confusion between different regulatory approaches for similar content available on the same platforms and devices

· To remove barriers to innovation and growth

· More broadly, to reflect changes in the role played by audio visual content as part of the overall media ecology

65. First, this area responds directly to trends set in motion by convergence. As TV and TV-like content merge within audiences' decision making, the confusion generated by their obligatory adherence to different standards codes will reach a point at which the disparity must be addressed. In the absence of change, there will be a detriment to audiences' ability to form expectations of the content standards they can rely on. For example, a viewer switching with ease from a linear broadcast programme on their living room screen to on demand or other TV-like content available at the click of a button will be unlikely to differentiate greatly between these services, although the standards they have to adhere to may be greatly different. This could easily result in undesired content appearing on the screen unexpectedly, and as such serve to undermine the audience's trust in the framework they may believe protects them. Accordingly, at a certain point, the sensible course of action will be to establish a regulatory area for content inherently similar from the perspective of the audience, and to move the relevant providers into it. This will include TV-like providers and those TV broadcasters not captured by the first regulatory area by virtue of their PSB status.

66. Second, establishing this area responds to the risk that the existing framework might inhibit content providers from exploiting the opportunities for innovation and growth brought about by convergence. Under our proposed framework, they would be able to develop new services to meet changing audience needs without worrying about compliance with different regulatory regimes. Hybrid on-demand and linear services, interactive TV services such as Sesame Street Kinect available over internet-connected Xbox consoles, streamed hyper-local news services, next generation YouTube services: all and more would be covered by the new content framework. Bringing providers of all these services into a single regulatory area and establishing over time parity between their standards codes will help remove barriers to innovation and the development of services with potentially significant benefit to UK citizens.

67. Third, this new regulatory area responds to the changing role of audiovisual content. This is very different from the one it played when extensive standards regulation was warranted on the basis of the scarcity of spectrum, the resulting power of broadcasters and the special influence of their TV content. Audio-visual content in a more converged world will in time move closer in nature to all other published media content, and the standards framework should adjust to reflect this change.

68. Last but not least, an important aim of establishing this regulatory area, in line with Ofcom's duties as set out in the Communications Act 2003, would be to reduce regulatory costs.

69. While the detail of the establishment of this part of the framework would need to be considered carefully in the coming years, there are a number of important questions which might already be answered at least in outline. For example:

· How should it be implemented?

· What broad approach to standards and consumer protection would it be expected to take?

· When should the change take place, and how should it be brought into effect?

HOW SHOULD IT BE IMPLEMENTED?

70. Regarding implementation, we think that there is a clear case for co-regulation rather than statutory regulation, perhaps with a role for Ofcom as backstop for appeals, monitoring performance of the regulatory body and setting overarching principles for the code. We attach in Appendix 5 a summary of self-, co- and statutory regulatory structures.

71. Establishing an effective approach to standards in this converging market will be a difficult process, with the need to balance audience expectations with the provision of sufficient room for fast paced and ongoing innovation. The need to strike this balance has been underlined consistently in evidence alongside the view that the best guarantee of achieving it is to ensure significant industry involvement, and little direct, statutory control. This points squarely at a co-regulatory system, requiring service providers to play a role in developing their own content code and compliance systems in collaboration with the regulator, allowing flexibility for the code to evolve over time with consumer expectations and technological change.

72. Existing co-regulatory structures along these lines have proven such systems to be effective in balancing these goals. As the ASA (Advertising Standards Authority) put to us, capturing a significant degree of consensus, co-regulation "has proven, time and again, that it is capable of adapting its regulation in line with wider business, technical and societal need."[43]

WHAT BROAD APPROACH TO STANDARDS AND CONSUMER PROTECTION WOULD THE NEW CO-REGULATOR BE EXPECTED TO TAKE?

73. Once a new co-regulator has been established, it will certainly be desirable to move the broadcasters and TV-like providers within this area to a single, new standards code. Ofcom might be asked to set out some general principles which it would expect the new code to cover, but it would be for the industry to draw up the detailed code. It is not sensible to speculate on the detail of that code here, as much would depend on the state of media convergence and audience expectations at the time it is introduced. However, it is likely that it will ultimately be less detailed than Ofcom's Broadcasting Code, but may be greater in scope than ATVOD's current rules for on demand services.

74. To a significant extent, the leverage for this regulatory area is already provided through the AVMS Directive and its transposition into UK statute. This creates formal authority for a regulator to oversee both broadcast TV as well as TV-like content providers, and with a jurisdictional reach which stretches as far as the borders of the European Union.[44] There are two potential sticking points, however:

· Statutory authority to establish the new regulator, although a co-regulatory framework overseen by Ofcom would appear to be acceptable within the terms of AVMS

· The jurisdictional reach of its code in the event that this goes beyond the provisions of the AVMS Directive

WHEN SHOULD THE CHANGE TAKE PLACE, AND HOW SHOULD IT BE BROUGHT INTO EFFECT?

75. Statutory authority would be required to establish this regulatory area. In particular, the new communications Bill would need to make provision for, at some stage:

· A move from broadcast licensing (except for PSBs) to a system based on notification, as currently used for on demand TV services;

· Scope for Ofcom to introduce a common regulatory framework for TV and TV-like content;

· Possible amendments to the standards requirements set out in the current Communications Act 2003.

76. It is impossible to forecast the right moment to introduce these changes. However, pressure to do so will grow and possibly reach a critical moment in the lifetime of the next communications Act.[45] This places a responsibility on the Government to find a sensible way to proceed, avoiding unnecessary disruption in the immediate future (at Stage 1 as we have described it) while achieving the flexibility to make further-reaching changes in the medium term (at Stage 2).

77. We have considered a number of the procedures available for introducing flexibility into the new Bill, from sunset clauses to conventional forms of delegated powers subject either to affirmative or negative resolution. None of these seem adequate, creating either a potentially unnecessary drain on Parliamentary time and resources, or the opposite: insufficient opportunity—given the likely very high degree of interest in these changes across both Houses—for Parliamentary scrutiny and for amendments to be made. The two principal options, therefore, and the only two which provide the democratic safeguard of in-depth Parliamentary scrutiny, are:

· Making no provision in the forthcoming communications Bill for change to the content standards framework. Should statutory authority be required to enable reform in the lifetime of the next communications Act, additional primary legislation can be introduced to amend it;

· Making provision in the forthcoming communications Bill for evolutionary change to the content standards framework. Specifically, introduce a clause to the new Bill giving a power to the Secretary of State to make an order amending the Bill along the lines we describe below, ensuring any such orders are subject to super-affirmative procedure, described in Box 2 below.

BOX 2

Super-affirmative procedure

The "super-affirmative procedure" is the form of strengthened affirmative procedure provided for in Part 1 of the Legislative and Regulatory Reform Act 2006. Other forms of strengthened affirmative procedure are provided for in a number of other Acts (for instance the Public Bodies Act 2011). In summary, the super-affirmative procedure under the 2006 Act is broadly as follows:[46]

A minister wishing to make an order must first consult on his or her proposals (section 13) and must lay before Parliament a draft of the order along with an explanatory document which includes, among other things, details of the consultation (section 14).

The draft order lies before both Houses for 60 days, not including periods when either House is adjourned for more than 4 days, during which time either House may make resolutions, and a Committee of either House charged with reporting on the draft order may make recommendations. The minister must have regard to any such resolutions and recommendations, and any other representations, made during the 60 days (section 18).

After the 60 days have elapsed, the Minister can either proceed with the draft order without amendment, or lay a revised draft order, in effect subject to the normal affirmative procedure.

In either case, the minister must lay before Parliament a statement about any representations received; and, in the case of a revised draft order, the statement must also give details of the proposed revisions. Between the laying of the statement (or the revised draft and the statement) and the approval of the draft, the designated scrutiny committee of either House may recommend that the order should not proceed, in which case it may not then proceed unless the relevant House rejects the recommendation, by resolution, in the same session.

78. On balance our preference is for the latter option described above on at least three grounds.

79. First, flexibility. Amending the next communications Act through the introduction of additional primary legislation is likely only to achieve the first of the following two sensible goals:

· Providing statutory authority to enable modernisation of the content standards framework;

· Providing that authority quickly and deftly in order that the content standards framework is flexible and able to adapt to fast-changing circumstances.

This second goal, however, is important. Just as we have set out above, the Government has also made clear:

80. Second, certainty. There is an opportunity in the next communications Bill to provide industry with a clear picture of the broad direction of travel in the regulatory framework; doing so would not only allow all those involved to prepare but more importantly, to discuss in concrete terms the merits and permutations of the ways in which change may proceed. By contrast, certainty is unlikely to be created by leaving future regulatory changes hostage to an amending Bill's passage through Parliament.

81. Third, efficiency. Why waste Parliamentary and Government time and resource doing twice what the Government can introduce the flexibility to achieve in one go?

82. We note that some aspects of the changes such as the move from licensing to notification could be introduced at an earlier date, possibly at the same time as a new Act, if thought desirable.

83. In order to ensure the Secretary of State is able to lay an order making the changes we set out above with reasonable assurance that he/she is doing so at the appropriate moment, he/she could act on advice from Ofcom. The Government would, therefore, as a priority, need to establish an acceptable basis on which Ofcom would give such advice, which might, for example, include a review of:

· the demonstrable convergence in the markets for TV and TV-like content;

· the extent to which disparity in the content standards codes for each is detrimental to audiences and to innovation;

· the scope for reducing the burden of statutory regulations which are or have become unnecessary;[49]

· the prospects of establishing adequate alternative arrangements which would secure effective co- or self-regulation.

84. The Government should introduce a new power in the next communications Bill for the Secretary of State to lay an order subject to super-affirmative procedure which would amend that Act by:

· establishing scope for Ofcom to introduce a common regulatory framework for TV and TV-like content and giving Ofcom authority to designate a co-regulator for that purpose;

· moving non-PSB broadcasters from a licence based to a notification-based regulatory system and altering, where appropriate, any detailed content standards requirements set out in the Act for those non-PSB broadcasters.

In this way the Government can make good on its commitment to develop a policy with sufficient flexibility to remain relevant and adaptable to future advances, while being mindful of the need for the exercise of such flexibility to be suitably overseen by Parliament.

85. The Bill should establish a duty for Ofcom to advise the Secretary of State on a regular basis (eg. once every four years) about the timing of laying such an order, with the first such review to be conducted no later than 2016 (coinciding with BBC Charter renewal).

86. The Government should set out, after consultation, clear guidance to Ofcom on the considerations for Ofcom to take into account in giving advice regarding the establishment of a new system of co-regulation for all (non-PSB) TV and TV-like audiovisual services, whether broadcast or not. These considerations might, for example, include:

· the demonstrable convergence in the markets for TV and TV-like content;

· the extent to which disparity in the content standards codes for each is detrimental to audiences and to innovation;

· the scope for reducing the burden of statutory regulations which are or have become unnecessary;[50]

· the prospects of establishing adequate alternative arrangements which would secure effective co-or self regulation.

87. On each occasion in this Report where a recommendation is made to the Government regarding the next communications Bill, these recommendations should be taken equally to apply to the forthcoming White Paper on communications as far as time allows.

88. It was mentioned above that there are two potential sticking points to the establishment of this regulatory area. The first is the provision of statutory authority for relevant changes to be made. The second is the jurisdictional reach of the code of the body overseeing this area.

89. Clearly the AVMS Directive is an important part of the context to this jurisdictional reach, which could in some circumstances constrain the effectiveness of any new UK-only regulation. The Government would also need to work in Europe to influence future changes to AVMS consistent with these proposals.

90. Given the length of time taken to establish a new Directive, there would be value in best practice and thinking to be shared and harmonisation to be actively introduced voluntarily where possible in the interim.

91. Once the regulatory area for TV and TV-like content has been established, the Government should press for provisions made in its code, as appropriate, to be incorporated into an amended AVMS Directive or its successor.

92. Given the infrequency and pace of reviews of the AVMS Directive, the Government should also press the Commission to ensure a mechanism or forum is in place through which the relevant national regulators and co-regulators overseeing the fusing category of TV and TV-like content can share best practice and work towards voluntary harmonisation of their codes as far as possible.

93. Further, we note in this context, that there is some prospect for cooperation along these lines between the EU and the US. Talks are due to begin on a free-trade agreement, establishing a very significant area of cooperation across the Atlantic,[51] and we note that media and audiovisual services would fall within the terms of these discussions.

94. We urge the Government to ensure that cooperation on the regulation of converging media content, such as the category of TV and TV-like material, is included as part of the discussions between the EU and the US about the establishment of a free trade agreement.

SIGN-POSTING CONTENT STANDARDS

95. In our proposed new framework, the PSBs' brands will continue to act as a trusted signal to audiences that high and comprehensive standards have been respected across all the content bearing their name. The brands of content providers, at least the familiar ones, in this second regulatory area will equally provide strong clues to audiences about the standards they can expect providers to uphold.

96. In addition, as a highly recognised way of distinguishing between content suitable and not suitable for children, the watershed has been and will remain important for some time.

97. However, linear broadcast content will increasingly appear seamlessly alongside on demand content and other material delivered by providers beyond jurisdictional reach. When the joins between these types of content really do become seamless, applying a watershed to one while it cannot be to others will be unlikely to serve the purpose of providing clear guidance for audiences navigating the media.[52]

98. This is indicative of the fact that, beyond that upheld by clearly recognised brands such as the PSBs, the conventional linear broadcast watershed will be decreasingly able to act as a cornerstone of a clear standards framework.

99. A diminishing role for the watershed is not a design feature of our model. The trends set in motion by convergence lead us naturally towards a shift in the balance from a more paternalistic approach, in which regulators impose certain standards and help make choices on behalf of the public about which media and content to use, to a more libertarian one, in which the public will be expected to make its own choices, informed by appropriate information.

100. This raises two related matters. First, as this shift continues to unfold, the Government will need to consider carefully the role of media literacy and education to ensure that audiences understand the extent and implications of their personal responsibility when navigating the media. Second, as part of our framework, it is essential that additional information about the nature of individual programmes is provided in order to enable users to decide which content is suitable for themselves and their families to watch.

101. To be clear, we do not suggest that guidance should replace protections provided in law against the exposure of children to adult content. At present, it is illegal for both broadcasters and TV-like providers to provide access to content only suitable for audiences aged over 18 without placing that content behind a robust system of age-verification, linked for example to ownership of a credit card. Instead, we suggest that guidance about the nature of content should be introduced as a matter of course for legal TV and TV-like content which, for whatever reason, individuals and in particular adults supervising children may not feel is suitable to watch.

102. At present, some guidance is made available about content which legally can be viewed by audiences of any age, but which it may be inappropriate for them to see. However, there is a variability of approaches, which in our view will prove inadequate.

103. On demand content inappropriate for audiences under 16 is currently marked 'G' for guidance by some broadcasters and is placed behind an age-verification system, albeit one which relies on audiences honestly declaring their age. Other providers such as BSkyB place such content behind a system of pin-control and use an age-rating scheme familiar to UK audiences from cinema and video game content. In a nutshell, there is variability among TV and TV-like providers in the extent to which they provide guidance on content at all; and there is also variability among those providing guidance in the way in which they do so. If we are to look for a framework which enables audiences to make informed decisions about the content which suits them and their families across converging media, it seems unlikely that it will fulfil this purpose if they have to deal with proliferating and varying approaches to guidance.

104. Of course, an inevitable challenge for any guidance scheme arises from the volume of content involved. There is little prospect of a regulator or co-regulator being able to age-rate all of the content they oversee. Instead, it will be necessary for providers themselves to age-rate their own content.

105. In order to ensure, as far as possible, this is done in a coherent and consistent manner, and that audiences are provided with a clear basis on which to make informed decisions, it would be desirable for a single ratings system for TV and TV-like content to be in place. The authority behind this single, platform-neutral ratings system can then act as a body of appeal should audiences feel that a particular provider has inaccurately self-certified their content. A good model for such a system, in our view, is the BBFC's certification regime already in place for cinema content. We are aware that this age-rating scheme is expanding beyond the cinema and the BBFC has in development a self-certifying tool for user-generated content. It would appear, therefore, to provide a potential model for the self-administered age-rating scheme we propose. Overseen by a body setting broad principles for each age classification bracket, a single age-rating scheme across TV and TV-like content would ensure that audiences can build an intuitive familiarity with it and use it to form accurate expectations of the content with which they might engage.

106. As part of a new system of co-regulation for all (non-PSB) TV and TV-like services, the relevant industry players should adopt a standard age-based classification system to be used by the content providers under the purview of the co-regulator described above.

107. Further, given the pivotal role this is likely to play under the new framework, and given that audiences will need to adjust to this new way of prejudging (non-PSB) TV and TV-like content, the TV and TV-like industry should introduce a self-administered age-rating scheme sooner rather than later across (non-PSB) broadcast and TV-like services. While it would initially provide, to a certain degree, a redundant layer of protection for (non-PSB) broadcast TV already subject to the watershed, this redundancy in itself has value, as it will help to habituate audiences to the signals they will need to rely on in the new framework once some of the current protections they are used to, such as the watershed, are no longer in place.

108. The Government should seek to influence amendment to the AVMS Directive to ensure that such an age-rating scheme is adopted by TV and TV-like providers across the European Union.

109. While the use of an age-rating system would be required of (non-PSB) broadcasters and TV-like providers, PSBs could also be invited to use the new system, especially for their on demand content, so that it is applied consistently across the board.

Area 3: News and current affairs

110. Under our proposed framework, the Broadcasting Code would remain in place for all PSB news and current affairs provision with its full range of protections relating to accuracy, fairness as well as an obligation to uphold due impartiality. Just as is the case in other areas, this creates a safeguard for audiences, guaranteeing the provision of trusted content, against which they can compare what they see, read and hear elsewhere.

111. While this much of the standards framework for news and current affairs provision is clear, the regulatory settlement for the printed news media and their online counterparts is at the time of writing still in flux since the publication of Lord Justice Leveson's report. However, certain features of its structure are probable, and perhaps relatively uncontentious at this stage. For example, it seems likely that it will consist of a voluntary self-regulator overseen by a backstop body of some description, and its code, although insisting on accuracy and fair treatment, is unlikely to include any obligation to due impartiality.

112. The converging media mix for news and current affairs provision, therefore, will under the new framework continue to maintain the valuable mixed ecology of balanced, impartial news providers and vigorous partisan news providers.

113. Convergence does pose a key challenge, however. As noted earlier, the binary distinction between impartial and partisan news is decreasingly reflected in the difference between news which UK audiences watch and hear, and news which they read.

114. This raises the issue of how far news impartiality requirements should extend across news and current affairs services in future. In future, we think that non-PSB broadcast news and current affairs should be treated in the same way as non-broadcast news and current affairs as far as impartiality is concerned. Audiences can decreasingly rely on their old rules of thumb to guide their expectations of balance in the news and current affairs services with which they engage; certainly the fact that they happen to watch it, whether on their laptops or on their TV screens, or read it will become increasingly irrelevant. As such, they will have to base their expectations on something else, and this perhaps argues for a new mechanism to be put in place; we discuss provision to be made for this below, perhaps via a kitemark, in paras 121-122 of this chapter.

115. The important point is that medium will cease to be the primary clue used by audiences in prejudging the balance they can expect from news and current affairs services. Ensuring there is a more reliable alternative will be a smarter way of helping audiences build accurate expectations, than simply holding onto an increasingly untenable link between impartial news and a particular medium. In addition, breaking this link would also help reduce barriers to innovation. Much as is the case with non-news content, it would create opportunities for established news and current affairs providers to introduce new converged services and brands without worrying about regulatory hurdles which might currently act as disincentives to their development.

116. Making this change, however, does raises the important question of how and by whom the news and current affairs content of non-PSB TV and TV-like providers should be overseen, at least in terms of monitoring their provision of other more general protections specific to news and current affairs such as those relating to fairness, accuracy, invasions of privacy and so on.

117. One possibility, of course, would be to incorporate this competence within the second regulatory area (TV and TV-like content) itself. However, this approach would lead to the establishment of four distinct regulators of news and current affairs content across the converging media landscape (Ofcom, BBC Trust, the press regulator, and an additional news and current affairs regulator for other non-PSB TV and TV-like content). This would not be prone to provide a great deal of clarity to audiences on the receiving end.

118. A more straightforward approach would be for the news and current affairs content provided by all non-PSB providers to be overseen by the regulator currently being established following the publication of Lord Justice Leveson's report. While very little else has been uncontentious in the debates surrounding the Leveson inquiry, the Editors' Code written by the PCC's Code Committee has generally been considered a sensible document with a great degree of overlap (barring obligations to due impartiality) with the protections specific to news and current affairs provision contained in the Broadcasting Code. Beyond this distinction, however, a requirement under the new framework for non-PSB TV and TV-like news and current affairs providers to adhere to the future code of the regulator emerging from the post-Leveson discussions, should not create any great difference to the standards they currently uphold. Of course, in order to ensure there is flexibility to incorporate TV and TV-like news and current affairs providers within the purview of the emerging system of regulation, it is essential for the wording of any new arrangements to be such that it can embrace them. In addition, although current indications suggest this will not come to pass,[53] if a separate regulatory system for the press were to emerge in Scotland (as this is a matter devolved to the Scottish Government), consideration would need to be given to the most appropriate body to oversee TV and TV-like news provision there.

119. As part of a proposed co-regulatory model for TV and TV-like content providers, Ofcom and the Government should consider, in consultation with the future press regulator, the implications of incorporating regulation of all non-PSB news and current affairs content into its remit, and removal of the impartiality requirement from those providers.

120. Ofcom should at the same time consider arrangements for providers who combine news and general entertainment in a single TV or TV-like service.

121. While it might be assumed that the opportunity to transition out of compliance with Ofcom's Broadcasting Code would be seized by non-PSB news providers, this is not necessarily the case. It is conceivable that one or more may find value in voluntary compliance with the Code, perhaps to maintain or establish their credentials with UK audiences. Voluntary compliance with the Broadcasting Code might be signalled, for example, by a kitemark for news providers much as it could be for non-news providers, as suggested in paras 53-54 of this chapter.

122. In establishing a co-regulator for TV and TV-like content providers, Ofcom should investigate the option of non-PSB providers of news services, such as Sky News, being invited to comply with the Broadcasting Code (suitably amended for their environment if TV-like) in return for some form of public recognition or kitemark.

Area 4: The open internet

123. The fourth area in the new framework contains the sphere of the open internet. The principal challenges this generates for the content standards framework were set out in Chapter 2. We consider them in their own right in the following chapter, Chapter 4, below.

The model as a whole

124. While we have made a number of specific recommendations for action on the part of both the Government and Ofcom, we also invite them to respond critically to the new framework as set out above in overview.