May 2005

 Regulation of TV via the Internet

The European Union was reviewing its Television Without Frontiers Directive and invited responses on a number of topics.

From Ofwatch Representing the opinions of Adult Service viewers in the UK

For further details contact Paul Taverner admin@ofwatch.org.uk

Response to the discussion document on Transfrontier television T-TT(2005)003

Introduction

Ofwatch is an organisation that represents the interests of the consumers of adult television services in the UK. We view the prospect of Internet service regulation with some trepidation. Whilst we welcome measures that are aimed at protecting children from unsuitable content, we expect that due consideration and respect will also be given to the rights of adults to view content of their own choosing in the privacy of their own homes.

There is great expectation that Ofcom, the new UK media regulator will create a much more liberal, consistent and transparent regulatory regime in the UK in the very near future, although this remains far from certain. As of May 2005 adult television services in the UK still suffer from inconsistent, disproportionate and non-transparent regulation that represents one of the worst examples of regulatory excess in all of Europe.

The following comments should be read in the light of the existing circumstances in the UK.

The need to regulate

After reading the discussion document it is clear that a great deal of thought has gone into how to regulate the new services, but that perhaps not enough thought has gone into considering the reasons why we should not regulate them. “Content regulation” appears no less than twenty nine times in the discussion document whereas “freedom of expression” is mentioned but once. It is hard to escape the conclusion that the decision to regulate has effectively already been taken and that the only question that now remains is how best to achieve this end.

The benefits of greater personal autonomy and the freedom to choose are difficult matters to quantify but are nevertheless very important issues that could be threatened by regulation. Innovation and development of new services are also very important issues that are difficult to quantify, but which are also likely to be threatened by regulation. The Internet and the services provided through it provide some of the most important outlets for free expression that have ever existed. The public should be permitted access to at least one media source that is truly free and where unfiltered content is available to those who consciously decide to access it.

It is against this background that we must consider the need for “horizontal, technologically neutral, graduated regulation of regulatable content”. Before considering the type of regulation that is required we feel that the need for regulation needs to be more clearly and fully articulated. Whilst there may be scope for limited regulation in some instances, regulation has many undesirable effects and should be strictly limited to cases where it is obviously needed.

There is a great danger that the search for “horizontal, technologically neutral, graduated regulation of regulatable content” will lead to something that is either unworkably complex or unacceptably restrictive.

Given the great technological changes that are already underway it is reasonable to assume that a new regulatory approach is required, but the new regulatory approach must show a greater respect for the autonomy of the individual than has been the case in the past. It is all too easy to over state the importance of some of the effects that favour regulation and assume that the consumer is simply a helpless victim.

There has been discussion about technology that “prevents the receiver from exercising control”. Whilst this is undoubtedly true to a limited extent, it should always be borne in mind that a very powerful (and “technology neutral”) mechanism for exercising receiver control is always available in all forms of technology by way of the off switch. Under existing broadcasting regulations we are only too familiar with the exact opposite situation where in some areas rigidly paternalistic regulation prevents the receiver from receiving what is actually desired.

We note that spectrum scarcity is a diminishing factor that will continue to decrease in importance and eventually disappear entirely, we also note that the diversity in sources of information have been greatly increased by the Internet. This leads to the conclusion that the need for regulation should be much reduced even in traditional broadcasting.

The method of regulating

We strongly oppose the “comprehensive” view taken by Dr Grünwald which would lead to a very large number of regulated services. This would create an unnecessary regulatory burden on many services that do not need it and would lead to regulation for regulations sake due to the fact that this mode of regulation is considered more convenient for the regulators to manage.

If it is necessary for some services to be regulated, (and the case for this must still be made) these services must be clearly identified and regulation should be tightly focused where it is needed. If the list of targeted services was kept to a minimum, as we believe it should, then the burden of maintenance should not be excessive.

One of the main reasons that remains for regulating, is the multiplicative effect of large numbers of viewers coupled with the power of the media in terms of opinion formation. As this is the prime concern, regulation should address this issue first and foremost.

Regulation should be targeted at large scale distributors. Small and medium scale distributors should require no regulation beyond the usual requirements of the law. Based on some suitable volume measurement such as viewer numbers, subscriber base, number of downloads or similar the largest distributors should be regulated with a light touch to achieve the desired aims. This approach would target regulation where it is needed most and would provide the greatest freedom where it is of most value.

The printed press

1.3.2 page 16 paragraph 2 concerning what services should be regulated: “leaving out the printed press (for not being an electronic service)”. This statement is very revealing and warrants closer inspection.

Newspapers are read by millions of people and undoubtedly have the ability to influence opinion. Leaving them out because they are not an electronic service is hardly media neutral, ignores the fact that many Newspapers now have online versions and cannot be logically justified. It would be useful to further consider why the press should be excluded.

Perhaps the real reason for leaving the press out has more to do with the perceived but unspoken value that is placed on the press in terms of free expression? Including the press in this debate would have the advantage of providing a more comprehensive approach and more importantly would introduce a useful consistency check on what is proposed for other media.

Even allowing for the fact that the moving image is more persuasive than the written word, large circulation newspapers have a larger influence on public opinion than small broadcasters do by virtue of the fact that they reach a very much wider audience. It would seem reasonable therefore to suppose that small broadcasters should not have to bare a burden of regulation that is any greater than that of a large circulation newspaper.

We do not believe that the press should be regulated in the same way as broadcasting and do realise that including the press in the current discussions might be controversial. However the reasons why the press are not regulated need to be discussed further and these reasons need to inform the debate about other media. It would be better to include the press in the discussion if only to determine what special feature of the press makes it suitable for non regulation. The press should appear in the graduated spectrum at the unregulated end.

Jurisdiction

Concerning jurisdiction. 1.3.4 paragraph 4 “adoption of general principles leaving detailed regulation to member states.”

For material that is both truly localised and is likely to be seen in public such as a bill boards or the front cover of a magazines it is reasonable to apply local standards of acceptability.

For non localised material such as television broadcasts in the Internet age, the value of local standards will steadily decrease. The most that can be reasonably expected is for distributors to label content in such a way that the viewer is able to make an informed choice about what to watch and provide the potential for automated software filters to protect children from unsuitable content.

The diversity of opinion in matters of taste, offence and acceptability concerning various types of content will be greater between individuals within any given nation than between any two nations. Although the numbers of people holding various view points may well vary greatly nation to nation, all will be represented to some extent. There is no reason to restrict material based on a “national” margin of appreciation in cases where content is specifically and deliberately sought by an adult. Harm should be an objective measure that applies to all and should not be open to abusive interpretation by national Governments to justify arbitrary levels of censorship for political purposes.

In addition to the national margin of appreciation being unwelcome in some areas, it is also becoming increasingly difficult to apply in practice. Attempts to do so will simply lead to confusion and eventually will bring the law itself into disrepute. Steps should be taken now to standardise and limit regulation at the European level based on principles of free expression and evidence of harm, not on the historical precedent and prejudice of national Governments.

We note how jealously individual states guard their powers of media regulation. Unfortunately, (or fortunately depending upon your outlook) it would appear that the era when national restrictions can be maintained is now drawing to a close. It would be better for everyone if this fact could be accepted by politicians, law makers and regulators alike. We are pessimistic about the likelihood of appropriate legal controls being handed over to European management in the near future and suspect that this will lead to an often vociferous, occasionally successful but ultimately futile struggle for control that will continue for a considerable period. Perhaps all that can be done is to ensure that the facts are presented in a timely fashion to all interested parties.

Summary

Although there may be a case for regulation under some circumstances the case for it remains to be made. The possibilities presented by the Internet for future media services are enormous and largely untapped. The value of the Internet as a medium for free expression is hard to underestimate. If regulation is required then it is of the greatest importance that a way is found to keep such regulation on a tight rein and to ensure that it is not permitted to expand uncontrolled into the new medium in the way that it has with traditional television services which are currently over regulated to the detriment of all.

Regulation should be focused where it is needed most, such as the very largest of distributors and small scale operators should be left unregulated as they are now.

The printed press should be included in the scope of the new regulation as there is no logical reason why it should be excluded and every reason why it should be included. The degree of regulation imposed on the press should be carefully considered and these considerations should inform the debate about other media.

An attempt should be made to reach a European consensus concerning what constitutes disproportionate harm. Every effort must be made to ensure that all interested parties understand that in some cases, regardless of the benefit or hindrance of regulation that it will simply not be possible to continue with the traditional regulation of the media on a national basis without introducing draconian measures to restrict the flow of information. The sooner this lesson is learnt the better for all concerned.

July 2003

Theme 4: Protection of Minors and Public Order - Right of Reply

The European Union was reviewing its Television Without Frontiers Directive and invited responses on a number of topics.

From Ofwatch, Representing the opinions of Adult Service viewers in the UK

For further details contact Paul Tavener via Ofwatch

The response has also been copied to Ofcom

We note that to date (27^th 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 British people.

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 the 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 the UK. These observations may not receive the emphasis they deserve from the UK authorities, if indeed they are mentioned at all.

General Observations

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 UK 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 further still.

2. Hardcore material is increasingly available to the public in the UK. 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 Europe, the United States 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 ourselves in.

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 UK (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 UK 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 UK authorities themselves. They have been, and will continue to be as opposition to the Government’s position grows, however any submissions from the existing UK authorities should be viewed in the light of the above observations.

 

Concerning the 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 UK. 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 above.

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 UK, we do not believe that at this point in time it represents a serious problem.

3. Derogation from the obligation to ensure freedom of reception

We 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.

Article 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 subscription services.

Illegal material should be defined in terms of consent or on the basis of reliable evidence of disproportionate harm. This definition should be consistent throughout Europe 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.

 

4. 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.

Whilst classification 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.

 

Right of Reply

We believe that the right of reply within the British jurisdiction is probably one of the best in Europe. It would appear logical to use this as the basis for European legislation.

 

Additional Observations

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 UK 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 UK in the future. A copy of this submission will be sent to Ofcom.

 

Notes

¹ The publics view 2002  (table 56) ISBN 0-9544055-0-1 available from the BSC. A similar report from 2001 was available from the old BSC website and shows a similar result.