We note that to date (27th July 2003)
neither the British Government nor the current British television regulator
(the ITC) appear to have contributed to this consultation, which is
unfortunate given the current position concerning the application of article
2a in the UK.
We would respectfully suggest that during future
negotiations between the British and European authorities concerning the
Television Without Frontiers directive that the
general observations described below should at least be considered and that
the British Government should be encouraged to explain their actions to the
As the official Government position will undoubtedly be
put forward at some stage we would like to offer you a different
perspective, specifically that of the viewers of adult entertainment within
United Kingdom. It is important
to consider this viewpoint because this group is generally underrepresented
and in the past has been largely ignored by the
UK authorities (the Government
and the ITC).
Before discussing the specific questions you have
asked, I would like to draw your attention to
some important general observations concerning material that may be
considered harmful under Article 22 paragraph 1, but not seriously harmful
under paragraph 2. Specifically explicit sexual activity
between consenting adults (hardcore) and attitudes towards such material in
These observations may not receive the emphasis they deserve from the
UK authorities, if indeed they
are mentioned at all.
1. The British public
have become very much more liberal and tolerant concerning sexuality in
recent years. This fact is repeatedly underplayed or ignored by the
authorities. In a recent survey of public opinion from 1200 adults
commissioned by the Broadcasting Standards Commission and the ITC it was
found that 76% of the population agreed that people should be allowed to
view particularly sexually explicit programmes on subscription
channels1. It was also established that the majority of those who
did object were more elderly, so the level of agreement may well increase
2. Hardcore material
is increasingly available to the public in the
Hardcore video is now legally and extensively sold from more than 120
licensed outlets throughout the country under the BBFC R18 classification.
HM Customs and Excise no longer consider that material depicting consensual
sexual activity between adults to fall within the scope of the import
prohibition on obscene articles and large quantities are imported from
and elsewhere. Foreign hardcore Satellite services are also watched by
increasing numbers of viewers.
3. The policy of the UK Government concerning hardcore
pornography is now both unclear and inconsistent. Despite claims by
Government ministers that hardcore
pornography has no place on British television, requests from the ITC to
proscribe the Italian hardcore service The Satisfaction Channel in the
year 2000 have been ignored and no proscription order has been made or
appears likely. Despite repeated questions from the members of the public,
the Author and the Author’s Member of Parliament the British Government have
refused point blank to discuss the issue. It has been reported elsewhere
that the Government are still “considering the matter”, which after 3 years
is quite absurd and clearly demonstrates the ridiculous position we now find
As the British
Government have refused to answer any questions concerning Article 2a and
any pending proscription orders, it has been difficult to discover the
reasons for their actions, but the following explanation appears highly
likely. If the Satisfaction Channel were to be proscribed after applying
Article 2a of the directive it is likely that the Broadcaster concerned
would take legal action in the European courts. In view of the fact that
hardcore material is now legally sold in the
(and has been since the year 2000) it is unlikely that the courts would view
the British Governments position as favourably as they have in the past and
there is every chance that they would be defeated in court. If the
Government announced that they were not going to proscribe the Satisfaction
channel this would prompt calls for hardcore broadcasting from domestic
services which would be likely to expand hardcore availability via BskyB.
Consequently the British Government has been “considering the matter” for
the last 3 years.
4. In view of the
ability to encrypt and PIN protect subscription channels, making hardcore
material available to adults is unlikely to be a source of significant harm
to children. What ever harm may exist (and there is no reliable evidence)
must be seen in the light of the number of likely child viewers compared
with the likely number of adult viewers. The
authorities have clearly not applied the principle of proportionality in
respect to this issue. Needless to say, Adult service viewers are strongly
in favour of lifting the existing restrictions so that hardcore services can
be received more easily.
It may well be argued
that a lot of these issues should be taken up with the
authorities themselves. They have been, and will continue to be as
opposition to the Government’s position grows, however any submissions from
authorities should be viewed in the light of the above observations.
specific questions in the consultation:
1. Prohibition or
limitation of broadcasts likely to harm minors.
There definitely have
been problems with national legislation in the
The problems are largely the result of the British Government being unable
or unwilling to come to terms with the points raised as general observations
The current wording of
Article 22 probably represents the best approximation to the proper degree
of control that is possible. In view of the unavoidably subjective nature of
the text it is unlikely that any further clarification can be achieved.
As broadcasting and
all other forms of electronic media converge and become more extensive and
complex, centralised regulation will become increasingly costly and
increasingly less effective. Children will be best protected by
self-regulation on the part of their parents rather than the Government. In
fact forcing parents to take an active role in controlling television is
likely to have a beneficial effect on their viewing habits.
We believe that all
potentially harmful material should be classified according to its content
(sex, violence, language etc) and this information should be provided to
adult viewers in order for them to make an informed choice concerning what
to watch. This sort of system would work especially well if viewers could be
given the ability to set their preferences online so that television output
could be automatically adjusted accordingly (bleeps on/off, pixelation
on/off, specific types of program or channels on/off).
2. Prohibition of
broadcasts containing incitement to hatred.
We would suggest that
the same approach be taken to Question 2 as with Question 1. Whilst
incitement to hatred is an issue in the
we do not believe that at this point in time it represents a serious
Derogation from the obligation to ensure freedom of reception
believe that all adult viewers should have the freedom to watch any
programme or service regardless of the country of origin and that the
provision allowing derogation from the obligation to ensure freedom of
reception should be deleted from the directive.
The central issue here
is the lack of commonly held standards between nations in the face of
Governments who feel a need to control peoples viewing habits. In the world
of twenty first century media and communications the degree to which
Governments can hope to control what their citizen’s watch is likely to
diminish. Governments must simply come to terms with this new situation.
2a has become increasingly pointless as can be seen from the ridiculous
position the UK Government has maneuvered itself into concerning
proscription orders (see General Observation 3). National Governments should
have no right to interfere with the broadcasting of legal material on
material should be defined in terms of consent or on the basis of reliable
evidence of disproportionate harm. This definition should be consistent
and there should be no national discretion in this matter either.
Potentially harmful material should be classified so that the adult
population can select according to their taste. Hardcore material should
always be encrypted to help protect children. Future efforts should focus on
creating a clear, simple and effective means to enable adults to make an
informed choice easily.
The recommendation on the protection of minors and human dignity
The Internet provides
one of the most important developments in human communication ever seen. It
provides more freedom of expression, more scope for communication and more
choice in content than any other medium ever devised. The need to keep this
line of communication free from petty bureaucracy cannot be over emphasised.
of content is an important issue it must not be allowed to encroach upon the
basic liberty of this new medium. Once again illegal material such as child
pornography should be prosecuted to the full extent of the law, but
censorship of non-illegal material should be resisted at all costs.
Classification of material should be encouraged provided no excessive
bureaucratic burden is placed on content providers.
believe that the right of reply within the British jurisdiction is probably
one of the best in
It would appear logical to use this as the basis for European legislation.
We feel certain that
there are many organisations and individuals who would wish to contribute to
these discussions if they were only aware that they were taking place.
Censor Watch were only alerted to this consultation when reviewing Ofcom’s
board meeting agenda for July.
Although we fully
realise the difficulties that must be involved with effectively advertising
a pan European consultation such as this, we would suggest that at the very
least, each national regulator should have a legal duty to advertise the
fact on their websites, so that more members of the public with an interest
in media issues would be able to contribute.
We hope that in the
light of recent changes to legislation in the
and the new regulatory organisation that is now being put in place (Ofcom)
that there is a real possibility that appropriate consideration will be
given to freedom of speech in the
in the future. A copy of this submission will be sent to Ofcom.
view 2002 (table 56) ISBN 0-9544055-0-1
available from the BSC. A similar report from 2001 was available from the
website and shows a