Summary of those relevant parts of submissions concerned with the
Secretary of State's decision to proscribe Eurotica/Rendez-Vous
Background
- In respect of UK-licensed broadcasters, specific matters concerning taste and decency
are subject to regulation in accordance with the various programme codes and broadcasters'
licence conditions. Section 6 of the Broadcasting Act 1990 prohibits the transmission of
programs offending against good taste and decency. As well as specific broadcasting
legislation, all television programmes are subject to the provisions of the Obscene
Publications Act 1959.
- While the portrayal of sexual activity, whether or not in pornography, continues to
generate substantial public attention, surveys by the Broadcasting Standards Commission
surveys that it is not, as a general issue a major concern for the majority of viewers.
- Adult channels licensed in the UK.
As well as those broadcasters with generally-based programme remits, which may
occasionally show adult-oriented films involving nudity and sex, there are three dedicated
adult channels which have been licensed in the UK by the Independent television Commission
(ITC): Playboy TV. The Adult Channel, and Television X - the Fantasy Channel. Contrary to
the claims of their critics, these channels do not show explicit sexual acts, but only
suggestive material from which it is impossible to determine whether sex is actually
taking place. They may only show material equivalent in content to that which would
receive a British Board of Film Classification (BBFC) rating of 18. They are not allowed
to show films which have been classified R18 and cannot show erect penises, or acts of
penetration, ejaculation or oral sex, all of which are common on the hard-core satellite
channels broadcast from outside the United Kingdom.
- The ITC - the statutory body for licensing and regulating commercial television provided
in and broadcast from the UK - takes the view that, as long as they are encrypted and
broadcast late at night, the three dedicated adult channels are licensable, and do not
breach the legislative provisions on taste and decency. They arc not perceived to pose as
serious a threat to children as hard-core channels.
- There is a small but highly vocal lobby which does not accept this line of thought,
believing that such channels are symptomatic of, and contribute to, the general decline in
moral standards in society.
- The ITC retains responsibility for thy day-to-day regulation of these UK-licensed
services, and the UK Government has occasionally been required to defend their
availability, as some Europeans find it hypocritical that the Government allows these
soft-core channels to broadcast (and export them to the continent) while taking action
against the foreign hard-core channels. One view in Europe is that such channels merely
provide titillation that deprives the viewer of what he (and the majority of subscribers
are men) has paid to see, which is explicit sex.
- However, the UK position can he defended when one examines the text of the EC
Broadcasting Directive, and in particular the distinction between the first two paragraphs
in Article 22 of the Directive. The first paragraph requires Member States to ensure that
no programmes are broadcast which might seriously impair the physical, mental or moral
development of children, in particular, programmes that involve pornography or gratuitous
violence. In the case of such programmes, the fact that they are broadcast encrypted is no
defence.
- The second paragraph deals with the slightly lower level of programmes which are likely
to impair the physical, mental or moral development of children. The Directive states that
such programmes are allowed, providing that by means of encryption, or being broadcast
late at night, children would he unlikely to see them. This accords with the basis on
which the ITC has licensed the soft-core channels.
- Hard-core pornography on foreign satellite channels.
As these channels originate abroad, they cannot (under the Directive) be subjected to the
UK licensing system. The Government cannot unilaterally stop them broadcasting, and it
therefore looks to a combination of domestic and EC legislation to provide a degree of
protection against such services.
- Legal and policy background.
The ITC has a duty to notify the Secretary of State of a foreign satellite television
service which 'repeatedly includes programmes which contain matter which offends against
good taste or decency or is likely to encourage or incite to crime or lead to disorder or
to be offensive to public feeling. Where the ITC has formally notified the Secretary of
State of such a service, he may make such an order, if he is satisfied that to do so is in
the public interest and is compatible with the United Kingdom's international obligations,
The legal instruments relevant to this power are Sections 177 and 179 of the 1990
Broadcasting Act and Articles 2a and 22 of the 1989 EC Broadcasting Directive (as amended
in 1997). copies are, attached.
- Prior to the proscription against Eurotica Rendez-Vous, four proscription orders had
been made against foreign satellite services:
| 6 April 1993 |
Red Hot Television |
Netherlands |
| 13 November 1995 |
XXX TV Erotica |
Sweden |
| 10 October 1996 |
Rendez-Vous |
France |
| 3 April 1997 |
Satisfaction Club Television |
Italy |
- On the first two occasions on which the Government made proscription orders, it is
thought that the broadcasters subsequently
went out of business. This was due largely to the fact a significant part of their
commercial revenue came from the UK. It appears that the merger between Rendez-Vous and
Eurotica was prompted in part by the effect on Rendez-Vous' income of the Government's
third proscription order.
- The Eurotica Rendez-Vous service was created in July 1997. Eurotica had been
broadcasting hard core pornography for,some time, but although it was receivable in the
UK, the ITC had not issued a notification. The service was not being marketed in the UK,
and as smartcards were not generally available, their view was that a proscription order
would have had no real effect. However, the merged service was widely advertised in the
specialist press, and the 5-10 minutes of unencrypted transmission at the start of each
evening gave a UK phone number and an annual subscription price of #129.
- The ITC concluded that the Eurotica Rendez-Vous service was unacceptable and should be
the subject of a proscription order and it duly notified the Secretary Of State on 27
October 1997, It therefore fell to the Secretary of State to consider:
a) whether a proscription order would have been in the public interest; and
b) if so, whether such an order would have been compatible with the UK's international
obligations.
- The secretary of state and officials viewed a video cassette tape containing examples of
material being broadcast on Eurotica Rendez-Vous. It contained the same type of material -
explicit hard-core pornography - as other channels which had been the subject of
proscription orders to date. The Secretary of State was satisfied that it was in the
public interest to make a proscription order against Eurotica Rendez-Vous.
- The Government initiated the consultation process required by the Broadcasting Directive
on 9 January 1998, informing the broadcaster, the European Commission and the French
authorities (as the Government believed Eurotica Rendez-Vous came under French
jurisdiction) of our intention to proscribe the service. However, the French authorities
denied they had jurisdiction. It transpired that Denmark had issued a licence to a part of
this set-up called DSTV and it appeared that Denmark had jurisdiction over Eurotica
Rendez-Vous under the terms of the Broadcasting Directive. Therefore, in order to he sure
that we had complied fully with the terms of the Directive, we consulted the Danish
authorities on our intended action.
- The Department subsequently sent formal letters of notification to the broadcaster. (7
July 1998), to the European Commission (8 July 1998), via the Permanent Representation of
the United Kingdom to the European Union, and to the Danish authorities (7 July 1998) of
its intention to proscribe the service.
- Notification letters, which are required by the, Directive, inform those parties of the
Government's view that a service infringes Article 22 of the Broadcasting Directive and of
its intention to take measures, in this case to issue a proscription order, should any
further infringements take place. This process serves to ensure that any proposed order
complies with the UK's international obligations.
- There then followed a 15 day consultation period with the Commission and Denmark to try
to reach an 'amicable settlement. At the end of this period, the Secretary of State made a
proscription order against Eurotica Rendez-Vous as there were further infringements of
Article 22.
- On 19 August, the High Court made an order staying the coming into force of the order
pending its hearing of Eurotica Rendez-Vous's legal challenge: it did not have time to
consider the case at the time, Those proceedings took place on 9/10 September 1998 and the
stay was lifted. The order proscribing Eurotica Rendez-Vous therefore came into force on
11 September and is now proscribed. The broadcaster was, however, granted leave by the
Court to seek a Judicial Review of the
Secretary of State's decision.
- The European Commission is charged to ensure that a UK proscription order is
proportionate and compatible with Community law. The Commission's opinion on three of the
four previous cases indicated that our action met these concerns.
- .Effect and impact of a proscription order.
A proscription order will not in itself stop Eurotica Rendez-Vous from broadcasting.What
the order will do Is to make it an offence in the UK to:
- promote, advertise or supply the use of decoding equipment designed for the purpose of
accessing the service (in this case a dedicated smart card)
- promote, advertise or supply any equipment or goods for use in connection with the
service
- promote, advertise or supply programme material for use the the service
- advertise goods on the service
- publish programme listings for the service
- The principal effects therefore will be that the service could not be marketed lawfully
in the UK and that its commercial revenue should he restricted.
- Thereafter, for the Government's action to be wholly successful, a proscription order
would need to be complemented by the Commission encouraging the Member States with
jurisdiction to take action against the broadcaster. This demonstrates the limitations of
the Government's position. While a proscription order restricts the promotion and
availability of the channel, it does not in itself stop the service being broadcast, and
the Government is ultimately dependent on the European Commission and other countries to
take supportive action.
Department for Culture, Media and Sport
Broadcasting Policy Division
13 November 1998
|
13th November 1998.