The correct balance of protection and
freedom of expression in television broadcasting in the United Kingdom
A response to Ofcom’s public consultation over the proposed broadcasting
code from Shaun Hollingworth.
This response can be freely published, and will be published on some web
sites dealing with censorship issues, such as the one run by Ofwatch.
Contents
1 Introduction
2 General Observations
3 Reply to section 3 Questions concerning the Introduction to the code
4 Reply to section 4 Questions concerning protection of the under eighteens
6 Reply to section 5 Questions concerning harm and offence
9 Reply to section 14 Questions concerning the Regulatory Impact Assessment
15 Critical assessment of Regulatory Impact Assessment recommendation 62
18 Summary
19 Conclusion
1 Introduction
I am a male individual, who for many years has been mystified by the
activities of the television regulators in the United Kingdom, when imposing
(generally quite unjustified) strict censorship of adult programming by
compiling overly restrictive programme codes even though rational analysis
of the available facts and statistics, clearly indicate this is usually
completely unnecessary.
I was shocked to learn how restricted we really are, compared with other
countries, in the European Union and elsewhere.
I have often sought proper justification for the censorious actions of
regulators in respect of so called "adult" material, but so far have never
been at all satisfied by the responses I have received from them, on the few
occasions I have received any reply at all.
This has been my position for over ELEVEN years.
I am a married person, and a parent of two children, aged 10 and 13 years,
who live with my wife and myself.
I am particularly concerned that freeborn adult individuals should be able
to make their own choices about "adult" material, when proper evidence of
harm (rather than mere offence alone) is lacking, and when sensible
precautions are used to prevent offence to others.
In this response I express much concern about the current broadcasting
prohibition of British Board of Film Classification (BBFC) R18 standard so
called "adult" material, but my comments also apply to any other material
which is disproportionately restricted and therefore censored by Ofcom
without any proper proof of harm, and without any evidence of any pressing
social need, and completely failing any strict test of necessity.
Many points are often repeated and laboured, as part of this submission. I
make no apology whatsoever for this, because they are really important ones
which seem to have been blatantly ignored, at least by the previous
regulator of television services in the UK. A heavy use of italics has been
employed to try and draw attention to certain points.
General Observations
There is much in the proposed code to be welcomed, including the formal
observation that freedom of expression, is a human right, and needs to be
respected, and also the clear formal recognition that: "Unnecessary
regulation should not be in this Code. Rules cannot be made at the whim of a
regulator."
However there are clear contradictions to the above, for example Ofcom's
recommendation that a prohibition on "R18" material should be maintained
despite statements made by Ofcom itself in the consultation document, that
the government has found no harm, and that research conducted by Ofcom, the
ITC, the British Board of Film Classification etc., has clearly indicated
that public opinion does not necessarily support such a prohibition, or the
strict censorship of any material intended only for adult viewing., which
would not itself be illegal elsewhere.
Reply to Section 3 Questions
Question 3a
Does the introduction appropriately set out the purpose and background of
the Code and does it achieve the right balance between giving broadcasters
creative and editorial freedom while protecting listeners and viewers?
Indeed it generally does. However as noted in my introduction there are
anomalies, when dealing with "R18" equivalent material, and the
recommendation by Ofcom, that the prohibition of such material should be
maintained apparently regardless of the lack of evidence of harm, the "adult
only" target audience, and regardless of any measures available to the
viewer, and broadcaster, to ensure that only this target audience would ever
be likely to see such material.
Question 3b
Should there be one Code or more than one Code? (Please see the RIA in
section 14 of this consultation for further information.)
Any single code must be flexible enough to allow for a wide range of
programming material, depending on the make up, and expectations of the
target audience, and to take into account that a particular audience might
be self selecting.
I am not sure how a single code for both television and radio, would be
appropriate, considering the vast differences between the two mediums, and
the fact that radio, as broadcast to the public is almost without exception,
"free to air."
Question 3c
Is the approach suggested by Ofcom the best approach to the proposed new
Code/s? If not, is there a better approach and, if so, what? (Please see the
RIA in section 14 of this consultation for further information.)
The new code and any justified restrictions it imposes, must be clear, fair,
reasonable, open to public scrutiny and properly respect the right to
freedom of expression, where the material to be broadcast is not provably
harmful to the target audience, and it should allow for the broadcast of
legal but possibly contentious material provided reasonable precautions
(such as the time of broadcast, and any pin or smart card protection etc.)
are taken, which will protect others, from viewing material they do not wish
to see, or are not mature enough to see. However that last concern alone,
SHOULD NEVER completely prevent adults from viewing whatever they wish to
view now we live in an age of multi channels, encryption, and PIN protection
etc.
Public opinion regarding what should, and should not be shown is important,
but it should never be allowed to override the rights of minority audiences
to view whatever they wish, unless there is also compelling evidence of
secular harm caused by the material being broadcast, which cannot be
minimised by any mechanism, other than outright censorship in the form of
prohibition. Any censorship by a public authority is (and has been legally
held to be) clearly an interference with freedom of expression, by that
authority, which in this case is Ofcom. Ofcom in such cases, must always pay
due regard to human rights. Censorship (by prohibition or restriction of
content) of programmes intended for minority audiences without proper
demonstrable evidence of secular harm, which is imposed because of the view
of public opinion alone, is quite simply tyranny of minority groups. Public
opinion alone, cannot and should not be taken as any sole justification for
restriction. Much more justification of harm should always be required, when
restriction in the form of censorship is to be imposed on citizens.
Question 3d
Should the Code differentiate between different types of services with
different rules for different services, or does the proposed approach allow
sufficient latitude for services to interpret the rules appropriately for
their audiences? (Please see the RIA in section 14 of this consultation for
further information.
The code should be flexible enough to accommodate the broadcasting of all
kinds of programme material to all types of audiences, and any concisely
worded restriction in the code must only be imposed after a proper
consideration and assessment of the risk of harm, and such a restriction
should also be the absolute minimum necessary to deal with such harm and no
more. The code should also specify clearly in what context any restriction
is to be applied
Deliberations on Ofcom's programme code, should begin on the basis that
everything which is not restricted by the criminal law should be allowed to
be shown, and then afterwards consider what, if anything, needs to be
necessarily restricted to prevent harm, and why that should be, and how any
such restriction will be the minimum restriction necessary. For example -
Not showing adult films on free to air mainstream television, in the early
evening when children are watching, would be a reasonable and understandable
restriction. Not allowing them to be shown at all, on any channel whatsoever
would be a grossly unfair restriction.
Reply to Section 4 Questions
Question 4a
Are the principles, rules and meanings necessary, consistent,
proportionate and achievable? If not, can the wording be improved and if so
how?
The rules must consider harm to children in the context of seeking always to
impose only minimum necessary restrictions, and to uphold our human rights
as adults. Restrictions imposed by the watershed should be considered in
tandem with the accessibility of the channel concerned, and the ease with
which it can be controlled by parents. A channel broadcast encrypted and
only available to people who deliberately choose to subscribe to it, ought
to have much more flexible watershed requirements, than one which is openly
accessible by any viewer. There should be an a watershed of 10.00 PM for
free to air channels broadcasting (unencrypted) "18" rated films, and
equivalent material. The broadcast of sexually contentious or excessively
violent material on free to air services could have a later watershed, for
example midnight, but only if it is proven that this is really necessary.
Question 4b
Are there any principles, rules or meaning we have not put here which
would achieve the intentions of the Communications Act and other applicable
legislation and be necessary, consistent, proportionate and achievable?
Restrictions should always be proportionate and properly justified in the
new code, taking fully into account ease of accessibility of a particular
broadcast channel by persons other than the target audience, and restriction
should be imposed to ONLY to reduce real and proven (rather than imagined)
harm, and be no more than absolutely necessary.
Question 4c
Are the proposed definitions of children and young persons appropriate?
Yes.
Question 4d
Do we need rules regarding violence and dangerous behaviour, smoking,
drug taking etc as proposed in the Code or are such matters already covered
by other rules?
Any of these kind of rules are only really necessary for material broadcast
pre-watershed, talking into account any likely younger audience, and the
ease of which the particular broadcast channel can be controlled by parents.
Generally they are covered by section 1.
Question 4e
Which of the options described in the RIA regarding the watershed on
premium subscription services is the best option and why? (If a new place is
proposed for the watershed, what is it, and why?) What technical and other
protections can broadcasters and platform operators put in place to protect
children?
Option 3. No strict watershed should be necessary on subscription services
if mechanisms are available for parents to control access to the service,
such as the requirement to enter a PIN number whenever the channel is
selected. The only purpose of such a watershed I could think of in these
kind of cases, is to prevent adults themselves viewing certain broadcast
material at times when children might be around and I don't think that would
be fair or justified.
Question 4f
Which of the options described in the RIA on the scheduling of programmes
regarding the paranormal is the best option and why?
I have no particular firm opinion on this. I can say I believe that
programmes about paranormal activity should not be prohibited from adults.
Also there should be exceptions for children's programmes, where the
intention is clearly to educate about the possibility of paranormal
activity. For example education about the possibility of extra sensory
perception etc.
Question 4g
Should cash prizes be specifically forbidden in children's programmes?
There should be guidelines which restrict appropriately, but not to totally
prohibit. Also the use of premium rate telephone numbers, merits serious
consideration regarding guidelines, when the broadcaster might be
encouraging children to ring in to win a prize using such expensive numbers.
Question 4h
Should there be rules linking the scheduling of films to the BBFC
classifications?
Classification decisions have varied over time by the BBFC themselves. Some
older films have recently got a significantly lower rating, when resubmitted
years later. Films for broadcast on the mainstream channels should be
subject to the same guidelines as any other program, take into account
exactly the same factors as used when considering what none film material is
appropriate. All "18" rated films should be allowed after the watershed and
earlier for self selecting premium channels, where parental control of "18"
rated material is available.
Section 5 Harm and Offence
Question 5a
Are the principles, rules and meanings necessary, consistent,
proportionate and achievable? If not, can the wording be improved and if so
how?
Any restrictive rule ought to clearly indicate under what circumstances and
context the rule is to be applied. IE pre-watershed, public access services
only, free to air only, or to adult channels with a self selecting audience.
This is not always clear enough in the proposed code.
Question 5b
Are there any principles, rules or meaning we have not put here which
would achieve the intentions of the Communications Act and other applicable
legislation and be necessary, consistent, proportionate and achievable?
None that I can think of.
Question 5c
Should a rule on hypnosis be included and if so what evidence of harm or
potential harm is there regarding the use of hypnosis on television or radio
audiences?
There should only be such a rule if Ofcom can clearly demonstrate that such
a rule is necessary, and it will protect against real and manifest secular
harm to the intended audience. Obviously if the intent is to hypnotise the
television audience, and this actually occurs, there is a serious cause for
concern, as this could cause widespread harm with people being hypnotised in
their own homes!
Question 5d
Is the inclusion of R18 and R18 standard material compatible with the TWF
Directive which requires that nothing is included in licence services which
might seriously impair the physical, mental or moral development of minors?
Yes it is compatible. Many other European countries have been broadcasting
none violent sexually explicit material for many years, whilst at the same
time the former regulator, the ITC has been battling to try and keep it out
of the UK, even though no public authority or expert testimony has been able
to properly show that this material, after sensible precautions were taken,
has ever caused any harm to anyone.
Even now the authorities in government are dithering about proscription of a
certain European based channel which broadcasts "R18" equivalent material to
UK subscribers and others. After four years of broadcasting, if this channel
really was causing harm enough to justify its prohibition from legal sale
here, the authorities would by now, have plenty of evidence of the damage
done by this. This is clearly not the case.
When the French regulators (the CSA) discussed restricting their adult
broadcasts the European commission in October 2002 disagreed. The EU Culture
and Education Commissioner Viviane Reding said that she believed France was
already fulfilling its responsibilities under the Television Without
Frontiers/Borders legislation protecting minors.
I am aware of the content that the French allow, on satellite TV late at
night. It is "R18" equivalent material.
Question 5e
If the answer to 5d is yes, then are there technical and other
protections that broadcasters and platform operators can put in place to
protect the under eighteens, who should not, and adults, who may not wish
to, access R18 and R18 standard material? (the Act section 319(2)(a)(f) and
319(4))
Yes.
The requirement for PIN protection whenever the channel is selected for
viewing (or playback if recorded on Sky Plus) is one possible safeguard.
Some adult broadcasters already use this mechanism. Channel 984 for example.
The watershed could be also be used if this really is considered necessary.
The requirement to always encrypt any service showing "R18" material is also
an obvious one. Also such material could only be broadcast on services that
the viewer has specifically asked to be enabled, such as a pay service
offering such material.
A service showing R18 material late at night could perhaps also be allowed
as part of a package available with more general channels, provided that the
service is not available by default, so that the subscriber to the general
package specifically has to ask for that "adult" service to be enabled, and
is made aware of the type of material broadcast on it.
Question 5f
Which of the options described in the RIA regarding R18s, and R18
standard material is the best option, and why?
Option 2, permit R18 content on ‘adult’ subscription services, including any
service where the viewer has asked the channel to be enabled.
Protection of children is important, but it is not the only issue to be
concerned with. A large proportion of households do not have children in
residence, and of those who do, they won't be children forever. They too,
will grow up, and will probably wish to make their own choice about whether
or not to view "R18" standard material on television, rather than to have a
negative choice imposed on them. My own two children aged 10 and 13, will
BOTH be adults in only seven and a half short years. I am convinced that
reasonable measures, such as pin protection, and encryption, of services
which are sought only by those who wish to see them, are more than adequate
to protect my children until adulthood, when I expect they will then wish to
decide for themselves what they want to see. I am just as much concerned
that they should have that right as future adults, as I am with protecting
them now, whilst they are still young.
Ofcom must also have proper regard for the future rights of my children as
freeborn adult human beings, living in a free society, where human rights do
matter, and are properly respected by those in authority.
It also has to be said, that adults are permitted all kinds of things which
can (and unfortunately do) cause direct and very serious and sometimes
deadly harm to children, such as alcohol, household cleaning material,
weedkillers etc. On the other hand I've never heard of anyone dying simply
because they watched an "R18" video. Clearly a sense of proportion is
required when considering this matter. Broadmindedness too, has been held to
be a requirement when authorities consider matters of freedom of expression.
I do not believe that the former TV regulator was ever broadminded.
Personally I believe this debate hinges in may respects on the concerns of
the overly sensitive religious right, and some in the extreme left, who
would it seems, use any excuse for imposing their so called "standards" on
others, rather than just because they really do have any serious concern
about the well being of children. Many people who advocate such media
censorship appear to (incorrectly) believe that television and video
restriction can somehow be used as a tool for social engineering.
Considering how long "R18" equivalent material has been allowed in most of
continental Europe on broadcast television, it must be concluded that if it
were damaging children enough to justify its outright prohibition from
television broadcasting there would be plenty of evidence from abroad to
support a position of prohibition. Were Ofcom to maintain such a position of
prohibition of "R18" material, I feel that it would have a statutory duty,
as a public authority interfering with the right to freedom of expression,
to fully justify such a position, and prove it was indeed a proportionate
and necessary one. I believe this would be a difficult thing for them to
achieve, and they won't be the first media regulator to have tried.
Question 5g
Should the restrictions in place regarding transmitting 'adult' sex
material on certain premium subscription services, PPV and PPN services be
changed, and if so what restrictions should be in place, and on which
services?
PPN and PPV services should be treated exactly the same, as any other
service which may broadcast encrypted sexually explicit material to
subscribers. The frequency of payment should be largely immaterial. Pay per
night or Per View, should have no regulatory advantages over channels which
choose to use a monthly or annual subscription. The only factor to consider
ought to be, that a viewer has specifically sought to have such a service
made available in their home. It should be made easy for longer term "adult"
subscriptions to be ended early, and the service immediately blocked by the
broadcaster if requested by the subscriber, even if any money paid up in
advance might not be refunded, to ensure the subscriber is always in
complete control of any explicit material entering his or her home.
The method of payment is irrelevant, unless it is used as a tool to provide
proof of age, for example credit (rather than debit) cards.
It seems that some public authorities currently have a disproportionate
obsession with sexually explicit material. There is also other material
broadcast which may be just as damaging to children, (and perhaps much more
so) that these authorities do not seem to be at all concerned with.
Question 5h
Should there be a prohibition on the transmission of films, videos and
DVDs refused a BBFC certificate. If not should there be any rule and if so
what rule?
The refusal of a BBFC certificate should not be automatic grounds for
prohibition from broadcast on television. Broadcasters should consider if
film material is suitable for broadcast, just as they would other material,
by using Ofcom's own concise guidelines. The reason for a refusal of a
classification certificate may not be relevant to the broadcasting scenario,
or may have been due to a law which has been revised since the work was
submitted to the BBFC for classification.
Question 5i
Can a lesser level of technical intervention achieve the same protection
for those with photosensitive epilepsy?
I don't know enough about this to comment, except that if there is a danger,
a warning ought to be given...
Perhaps in the future television sets could be programmed to reduce
localised on screen flashing, by computer controlled muti-frame comparison
technology, which could detect and prevent extreme flashing, if the viewer
needed this, and then the rule could be relaxed but such technology doesn't
exist at the moment.
Section 14 The Regulatory Impact Assessment
Question 14a
Has this RIA correctly identified the significant changes (as described
in the opening paragraph of the RIA) made in this consultation paper. If
not, what other changes are significant, and why?
Mostly. However I do have serious concerns regarding the R18 issue, which I
will point out later.
Question 14b
Do you disagree with the assessment of benefits and disadvantages drawn
up in this RIA and, if so, how would you suggest it should be altered?
Concerning the R18 issue, it appears that different people have written
different parts of this document, and they clearly have different ideas
about what constitutes freedom of expression.
There is a clear implication in the Human Rights Act, that all freedom of
expression should be allowed unless there is a compelling and pressing
social need for it to be restricted. Harm, (real and manifest harm I
believe) should be the prime barometer which is used as justification to
impose restriction. "Offence", by people who have no need to view a service
themselves, and by those who simply become offended at the thought of other
people doing so, is NO proper justification whatsoever for the imposition of
censorship of R18 material or indeed any other material on freeborn
individuals.
I am frankly both surprised and appalled by Ofcom's current position, in
recommendation 62, considering their findings that people (76% or so)
generally support the availability of sexually explicit material, and the
stated fact that the government had found little evidence of harm, caused by
the availability of R18 material. In light of this, to maintain such a
position regardless of any reasonable precautions which can be taken to
avoid offence to others, would clearly be a violation of the human rights of
those who wished to view such material and had taken specific steps to do so
themselves, by subscribing to particular services.
It is not at all clear, how Ofcom has arrived at a position of seeking to
maintain a prohibition of R18 material, in light of their legal obligations
as a public authority to respect rights, and the lack of evidence of harm,
which they themselves have indicated in the broadcasting codes consultation
document. Is this the action of a true "Evidence based" regulator ? No one
is suggesting that children should see R18 material, but according to
research done by the BBFC, they find no evidence of harm in cases were they
have seen it by accident.
39. This consultation seeks responses regarding the present prohibition
on transmitting R18s and, consequently, R18 standard material. Should the
prohibition be lifted or maintained? If it is not to be maintained then
Ofcom seeks information on what technical protections or other protections
are available which could ensure the protection of people under eighteen
(and others who do not wish to access the material). Further, if the
prohibition is lifted, on which services should it be lifted?
The prohibition should be lifted, as there is already adequate parental
control, on the reception of such material, for example by the entering of a
PIN number when the channel is selected, such as used by some broadcasters
on Sky Digital, and the requirement that such a service is not provided,
unless specifically requested, for example, by the viewer deliberately and
consciously choosing to subscribe.
40. The R18 category is a special and legally restricted BBFC
classification for explicit videos of consenting sex between adults. (The
BBFC guidelines regarding R18s can be found on the BBFC website a
www.bbfc.co.uk) The BBFC are currently classifying some 1400 videos in the
R18 category a year. Such material may presently be supplied to adults only,
over the counter, in licensed sex shops.
It should be considered that such material can also be legally and
legitimately imported from various suppliers abroad. The requirement of HM
Customs and Excise, for legal importation into the country for personal use
of foreign sex videos, is that the material does not breach the current BBFC
guidelines for R18 material as published . The material can also be
legitimately and legally downloaded from the internet, subject to similar
constraints. I have had personal discussions with people at the Home Office,
who told me, that the R18 standard is also the specifier of acceptable
limits of what people may put up on the internet, for example on web sites
without fear of any likely prosecution for obscene publication.
44.
The UK government can, and has, on the regulator's recommendation,
proscribed services which are licensed abroad but which transmit R18
standard material into the UK. It has previously proscribed five services.
The government has proscribed NO such services, since the more explicit
material became legally available in the year 2000, and the Human Rights Act
became part of domestic law. The ITC did recommend the proscription of
"Satisfaction Television" in 2000, but so far, the government has failed to
act, for the last four years. I can only assume the evidence of harm being
caused by this service in those four years, must be extremely thin on the
ground, otherwise the service would have been proscribed long before now.
There are many such services available in Europe, which can be legitimately
and legally subscribed to, within the UK, and no evidence is available that
they are harming anyone, in any proportion to the kind of restriction that
some people, (presumably for their own narrow minded reasons) wish to see
imposed upon them. Four years delay would not demonstrate any kind of
"pressing social need" to proscribe or restrict such services. I would
imagine that sudden proscription of the channel now, would be met with a
strong legal opposition in court considering the time lapse of four years.
It follows then, if such a service is legitimately available from any
European broadcaster, equivalent services should also be legitimately
available from a British based broadcaster.
46. Ofcom is required to set standards which maintain generally accepted
standards as required under section 319(2)(f) of the Act.
The BBFCs R18 standard is a generally accepted standard, and is used by
various authorities for purposes other than just limiting sexually explicit
material on video and DVD, to be sold only in licensed sex shops.
The R18 standard also sets the standard for what can be imported on video
for personal use, for what can be displayed on, and downloaded from the
internet, and indeed for what can be legitimately printed in adult
magazines, because the Crown Prosecution Service would not consider material
obscene, which did not breach the R18 standard.
The current position regarding the censorship of adult channels broadcast on
British based satellite and cable systems is a complete shambles. Currently
we have a situation where clearly the material broadcast on Ofcom licensed
adult channels is stronger than would be allowed on a BBFC "18" rated video,
but not as strong as would be allowed, on a BBFC "R18" video. When I made
enquiries to Ofcom myself, to try and ascertain the limits, of what I could
and could not broadcast, (I was posing as a potential investor, looking to
set up a new adult channel of my own) I was clearly told: "Er we don't tell
channels what they can and cannot show", and the one single rule I
eventually managed to learn was that "sexual penetration is not allowed" and
it seemed to me, there was a complete lack of guidance about limits
available to interested parties, and NO justification for that particular
restriction forthcoming, from those who are legally supposed to give it
under the Human Rights Act. Please note that because of the Human Rights
Act, the British board of Film Classification now justifies all its
censorship decisions in terms of harm, or the criminal law. Ofcom must start
to do the same, or face legal challenges.
In the event of Ofcom NOT adopting the R18 standard, and also NOT imposing
the somehow properly justified requirement that the current "adult" channels
it licenses dumb down their output to meet BBFC "18" (allowed on any service
anyway) standards then Ofcom would have to draw up a detailed code of its
own, about what is and is not allowed on adult videos. This necessarily
concise code, would also have to be made available to the general public,
NOT just to broadcasters, so the public can see exactly how their right to
freedom of expression is being limited by Ofcom's rules and why that is
necessarily so. It thus follows that Ofcom would also need to provide FULL
justification for any of the restrictions they impose on adult services in
any such code, and show these really are more than necessary, that show that
they really do fulfill a pressing social need, and also that they are
proportionate. It should be noted that the BBFC have done this, in order to
comply with the requirements of the Human Rights Act. What they allow and
specifically prohibit in any R18 video (or any video for that matter), is
available for all to see, in the published guidelines, on the BBFC internet
web site.
Again:
If Ofcom were not to adopt either standard (18 or R18) it would clearly need
to draw up and publish a code of its own for adult broadcasters, and in it
fully justify any restrictions imposed by it, and make that code available
to the public, so they could see how their rights were being restricted, and
why such restriction really was necessary.
There have been a lot of people paying out their hard earned money, with
expectations about being able to view certain "strength" material on Ofcom
licensed "adult" broadcast services, who have been extremely disappointed
because they have no way of easily knowing what is allowed, and what they
can expect to see. Ofcom, according to my own research, does not seem to
care much about this problem, even though it sets unclear limits on freedom
of expression.
47. In a survey of public opinion of 1200 adults commissioned by the BSC
and ITC (The Public's View 2002) it was found that 76% agreed that people
should be allowed to pay extra to view particularly sexually explicit
programmes on subscription services. The survey did not distinguish between
R18s and R18 standard material and more commonly available 'adult' material.
There is little evidence that most rational people would disagree with this.
The question pertaining to "particularly sexually explicit" material, is in
my view, a pointed question, and most people would assume it referred to
"R18" type material if they were at all aware of the details of that
particular censorship standard.
48. The government has found no compelling evidence of harm to adults as
R18s were made legally available in 2000. However the regulatory impact
analysis of a government consultation paper on the regulation of R18 videos,
published in 2000, explains the precautionary approach regarding children
and R18s: “There is always a risk of age-restricted material, such as
tobacco or alcohol, falling into the hands of, and being misused by,
children. Unlike tobacco and alcohol, which are widely available, there is
no known and substantiated health or other risk associated with watching a
video that has been given an R18 classification. However, there is
widespread public concern about the possibility of children viewing sexually
explicit material which is clearly unsuitable for them and the Government
takes the common sense view that exposure to such material at an early age
may be harmful to children. There is, therefore, a need to ensure that
controls on the distribution and viewing of these videos is as stringent as
possible.”
That something "may be harmful" as opposed to being provably and
demonstrably so, is no justification whatsoever for strict prohibition, and
every reason to take sensible precautions, such as the requirements for
subscription and/or only enabling such services for those who specifically
seek them out, and perhaps a requirement for a PIN number to be entered when
selecting the channel. Outright prohibition has not been shown to be
necessary, and indeed if it was, Ofcom would, I'm sure, have cited the
evidence for the need for it, in their consultation document on broadcasting
standards. Which is why I am appalled that they recommend that this
repressive status quo should prevail. This is in fact a shocking and most
unfair position for Ofcom to take.
I should also point out, that the Home Offices consultation document on the
"Regulation of R18 videos" referred to has been quietly abandoned or
shelved, since it was hastily issued by a previous Home Secretary, and later
passed over to the Department of Culture Media and Sport when they became
responsible for video regulations. After four years delay, any need for such
controls would be quite obvious by now, if there really was a pressing
social need for them, which there obviously isn't.
From the BBFC's web site quoted from:
Abused Children Most At Risk From Pornography
"
Several of the experts argued that pornography was less regulated and more
readily available in Europe and the USA. Yet they were not aware of any
evidence that a higher proportion of children in those countries needed
professional help because seeing pornography had upset them. Nor were
related outcomes like teenage pregnancies or marital breakdowns higher in
countries where pornography circulated more freely
"
52. Some argue that the restrictions in place regarding R18s, R18
standard material and 'adult' material are unnecessary regulation and a
restriction on freedom of expression and choice. But other stakeholder
groups regard such material as so innately offensive and potentially harmful
to adults as well as under eighteens that they consider a prohibition on R18
and R18 standard material an absolute necessity. Some want 'adult' sex
material prohibited as well.
Some people may well regard such material as "potentially harmful" and want
prohibition, but do they prove unequivocally that it is actually harmful
enough to justify that complete prohibition ? All those people want to do,
is to control what others may freely see, and impose their own blinkered and
narrow minded "standards" upon them.
When all the facts and evidence are properly and rationally examined, it is
certainly the case that the prohibition on R18 material clearly is a
blatantly "unnecessary regulation and a restriction on freedom of expression
and choice." and are therefore a violation of the human right to freedom of
expression, and deny proper choice for no valid reason whatsoever.
Evidence from the pointed question discussed above regarding "particularly
sexually explicit material" shows 76% of people do not agree with such a
position. That some people, who have no need to watch a particular service
themselves, and whose only concern is therefore to prevent others from
viewing it, would be able to see their repressive values firmly imposed on
others without presenting a shred of evidence that to do so really is
justified, necessary and proportionate is highly offensive in itself. It
does not in any way respect the right of freeborn individuals to decide for
themselves what they wish to see, limited only by proportionate and
necessary restriction, for reasons which involve HARM rather than just
simple offence. Unjustified censorship is itself offensive. It actually
hurts to learn we are not as free as we should be, and there is no
justification for that position.
Children cannot easily subscribe to "adult" material. Broadcasters such as
Sky take precautions to be sure that they are dealing only with subscribers
on the telephone, because the subscriber has to give a password to the
telephone operator. People under 18 are not allowed to be Sky subscribers.
Credit cards, (rather than debit cards) which are available only to people
aged 18 years and over could be required as payment. Payment in person, at
(for example) a satellite dealer could be required, if deemed absolutely
necessary, to prove age.
53. To remove or change the rules which prohibit R18s and R18 standard
material and to waive the 2200 rule and/or associated rules regarding
'adult' sex material would be an important change affecting broadcasters and
consumers with significant commercial impact.
This statement is quite true, but it might also be beneficial to point out
that the prime duty of Ofcom is to serve citizen consumers, as a whole, and
not to restrict anyone unjustly, and without evidence of compelling need. To
do otherwise surely has far reaching legal implications about the proper
workings of any regulator.
56. Option one would continue to protect the under eighteens and also be
based on the assumption that such material is so potentially offensive to
society that its transmission would be a breach of generally accepted
standards.
The maintenance of option one, unless fully and properly justified, as being
proportionate and necessary in a democratic society, and fulfilling a
pressing social need (which in fact has not been shown to exist) would be a
clear breach of Human Rights, and I for one would not hesitate to
continuously press Ofcom for such justification, until I was satisfied that
my human rights to freedom of expression were not being infringed. Freedom
of expression is a two way street, and is not just about what a broadcaster
may show, it is also about what a viewer may potentially expect to receive
from a broadcaster, and what choices he or she can make for themselves
without unwarranted interference by the state.
There is no evidence to show that under eighteens would be harmed in any way
if the prohibition of R18 equivalent material were to be lifted, provided
that sensible precautions are used, and Ofcom have a legal duty only to
impose the minimum restriction needed, to deal with any pressing social
need. This duty is imposed on them, owing to the fact that the Human Rights
Act is part of British law. I believe the new statutory framework under
which Ofcom directly operates requires this too.
Were evidence to appear, that the material was indeed harmful, and the
evidence was clearly compelling, then this would be the proper time for
Ofcom to consider any further necessary restrictions. People living in a
free society where authorities properly respect their human rights, should
not have to beg for their freedom or justify why they should have it. Those
who would wish to restrict it in some way really MUST show unequivocally why
that restriction is necessary, and proportionate and fulfills a pressing
social need.
In 1990 a European Judge (Bernhadt) stated:
"It seems also to be undisputed that a licensing system cannot be used for
imposing censorship and cannot justify the suppression of legally permitted
information and ideas" (Groppera 1990: Bernhadt 1§2).
If Ofcom maintain their prohibition of R18 material, which is legal material
it appears they are doing exactly this, and are therefore illegally
breaching the HRA, as the ITC apparently did for years, because they imposed
the same prohibition.
58. The benefit of option two would be that it would give viewers greater
choice. Many of the member states of Europe allow the broadcast transmission
of R18s. This would bring the UK into line with Europe. There would be new
channels offering such material and other channels would be able to schedule
more freely, potentially bringing in new subscribers thereby increasing the
revenues that such channels receive.
In recognising that most European countries permit this material, Ofcom
should also realise that were the material harmful enough to justify
prohibition, there would be plenty of evidence to demonstrate that harm was
real, and would have cited it in the consultation document on broadcasting
standards. Quite simply there is no need whatsoever to prevent people from
choosing for themselves, to view such material if they wish to.
In recognising that the revenues of such channels would increase, Ofcom
itself clearly acknowledges and recognises that there is clearly a strong
enough demand from the public that this kind of material should be
broadcast. Such a public demand should not be denied without compelling
reason. Nowhere in the consultation document on broadcasting standards, does
Ofcom cite any reasoning whatsoever which would proportionately justify any
prohibition, of R18 material, and yet they still recommend it remains. This
cannot be a correct position for them to take.
59. The disadvantages of option one would be that it may be out of line
with public opinion, limit choice for adults and inhibit the commercial
development of existing and potential services.
Indeed. All this is absolutely correct.
But more importantly, "option one" has not been justified to be necessary
and proportionate, and therefore would be a gross violation of peoples
rights to make their own choices.
60. The disadvantages of option two are that under eighteens may not be
sufficiently protected and adults may be exposed to potential offence.
Furthermore Ofcom would have to employ a person or persons to view and
regulate such material. That might lead to an increase in regulatory costs
to broadcasters.
Under eighteens will be adequately and sufficiently protected, by the
parental control mechanisms available on modern digital equipment, and the
fact that only adults may subscribe to a satellite or cable service. There
is simply no evidence that the levels of protection need to extend to
outright prohibition to protect people under eighteen, especially when
considering the lack of evidence of harm in the unlikely event that some of
them actually did see it.
I simply do not see why Ofcom cannot rely on the current mechanism for
reporting offence caused by such material, and why they would need to employ
anyone to police it, rather than simply do spot checks, if they thought any
kind of monitoring was necessary. Again it seems an obsession that
regulators appear to have, with limiting this kind of material.
For what reason I wonder ? Nowhere in this document do I read about Ofcom
having to employ a person to regulate material which is excessively violent.
If Ofcom were to employ someone to regulate adult broadcasters, I will
happily put myself forward for the job! Please expect me to be quite liberal
however.
61. There may also be an adverse economic impact on television services
presently supplying 'adult' sex material via premium subscription services
or via PPV or PPN. These services have built up a stock of material
permitted by the ITC and may find themselves at a disadvantage. They risk
losing viewers and may have to acquire fresh stock making old stock
redundant.
There is no reason why such broadcasters would not be able to still show
their old stock, intermingled with newer, less censored material. I
understand that many of these broadcasters keep unedited versions of their
material to hand, for distribution through other channels such as the
internet, and foreign broadcasts. In any case, I do not know why Ofcom would
concern itself so much with such matters. It is for Ofcom to serve the
interests of the public, and to see that their rights are not being
infringed without good reason. Which at the moment, they clearly are. In any
case the broadcasters will be much better of in the longer term if this
unjustified prohibition of R18 material were to be lifted.
Question 14c
Can you assist with information which will help us quantify the increased
costs or savings of the various options in this RIA?
As far as R18 material is concerned, Ofcom have already indicated in the
consultation document that revenue streams would increase for broadcasters
of adult sex material.
I do not see why they would not be happy with that!!
RIA recommendation 62
The status quo will prevail regarding a prohibition on R18s, and R18
standard material and also on a 2200 start for 'adult' sex material plus the
other protections currently in place regarding 'adult' sex material. It will
only change if it can be established that there are sufficient safeguards
(technical and otherwise) to protect persons under eighteen, and ensure that
adults who do not wish to see such material are adequately protected from
harm and offence.
I simply do not know how Ofcom have arrived at this position. In any event
there is not that much difference between much of what is being broadcast
now, and R18 material, in terms of potential offence (but every difference
in the context of human rights and free expression) and there simply is no
justification to maintain such a position. Those who support a relaxation of
the rules regarding R18 material recognise the need to try to be sure people
are not offended by it, and that proportionate restrictions are necessary so
children cannot easily see such material.
However my own research and knowledge of the matter clearly indicates that
people who would be offended by such material, would also be offended by the
material already allowed, and what they really want is to prevent ALL of us
from making any such choice whatsoever. This is unacceptable as is
recommendation 62 in its current form.
Offence alone certainly isn't any reason to prohibit anything.
Legal considerations
Ofcom makes the point in section 2 that:
“The new code is based on the law not on the code of the legacy
regulators”.
It also says:
“All regulation in the proposed Code must be prescribed by law and
necessary in a democratic society”.
So without such a law prohibiting R18 material from broadcasting, how could
Ofcom reasonably impose such a prohibition when harm enough isn't in
evidence ?
Quite simply as the R18 BBFC rated material has not properly been shown to
be harmful there is no current legal basis for proscription. It is not the
job of Ofcom, to impose its own ideals of taste and decency, upon the rest
of us, which I suspect the ITC had a habit of doing virtually throughout its
life.
If Ofcom wish to prohibit R18 material, it must properly show why only
prohibition is proportionate, necessary and justified.
Proportionality and Consistency considerations between the code and the
RIA
In terms of the R18 issue, the RIA is clearly inconsistent in that it seeks
to maintain an unjustified disproportionate and downright unfair prohibition
on material which has not been properly shown to harm.
Consistency with the BBFC and application of joined up regulation.
The purpose of the R18 classification is to provide for adult viewing of
sexually explicit material in the home, protecting children, without
infringing the rights of adults to view what they wish to view. As a
standard, the restriction only for sale in licenced sex shops is an
unfortunate one and one that perhaps badly needs revision. However these
rules were drawn up, at a time where the present multi channel television
climate would almost be a pipe dream, in the realm of science fiction. Ofcom
should note that the R18 rules never did apply to television reception, and
that it would be wrong to try and use a standard more than twenty years old
to justify restriction of something much much more modern such as multi
channel television. Instead it should require only reasonable precautions to
prevent offence, and the possibility of any harm to children.
Considerations of freedom of expression and evidence of harm
If Ofcom really is an evidence based regulator, then where is the evidence
to show, that the maintenance of a prohibition of R18 material from
television broadcasting really is fair, reasonable, proportionate, necessary
in a democratic society and fulfills a pressing social need ?
Nothing in the Ofcom consultation document on broadcasting standards
remotely indicates any justification whatsoever for maintaining an unfair,
unreasonable, and for many people, unwanted tyrannical prohibition. I am
convinced that even many of those who have NO desire to watch such material
themselves would still want the choice to be theirs, not one be imposed on
them by authority, unfairly and without any proof of need.
Common sense
Unjustified censorship as a concept, for many people, especially younger,
more media literate people, is in itself nowadays extremely offensive. That
people in positions of authority can unfairly and unjustly impose what are
nowadays often perceived to be narrow minded restrictions upon others
without showing any proper evidence of harm, is clearly unacceptable in any
kind of free and democratic country. Ofcom in considering its broadcasting
codes, should be striving to enhance the freedom and human rights of UK
citizens and stakeholders, not deciding what the next restriction it wants
to impose on the rest of us is going to be. It should also be deciding what
current restrictions are clearly unnecessary and should be getting rid of
them. The "R18" prohibition is clearly one of those restrictions, that
should be cast out, to become part of a less enlightened age.
Summary
Ofcom must unequivocally show that any restrictions it imposes really are
minimal, fair, justified, prevent real and manifest harm, are more than
necessary and comply with its own legal requirements, and those of the Human
Rights Act.
It must be seen to be properly transparent in all its decisions, and must
openly publish detailed programme standards including evidence based
justification for any necessary restriction for the use of its own for
specialist "adult" broadcasters, if it is not to adopt and shadow those
already used by other regulators, such as the BBFC's R18 standard.
I am most concerned that Ofcom still apparently wishes to impose
restrictions which it has not itself properly and openly justified as being
fair and reasonable, necessary in a democratic society, fulfilling a
pressing social need, and proportionate.
The regulatory Impact Assessment needs to be revised in the light of the
above, and the recommendation for the continuance of the prohibition of R18
standard material be again properly considered in the context of Human
Rights issues, and the fact that there is little evidence of harm, after
reasonable precautions are taken, and the assessment amended, because it
clearly does not meet with the requirements for continuing restriction, for
many reasons.
Conclusion
Censorship of television, by prohibition imposed in broadcasting standards
code, must be properly justified as to harm. and be proportionate.
I believe I have provided rational generally irrefutable arguments about why
the censorship imposed on adults, should be greatly reduced, for those who
wish to view "R18" equivalent explicit material on subscription television.
If Ofcom wish to maintain a prohibition on certain types of material I hope
it can provide a strong case for its position, for I am sure it will
otherwise be legally challenged at some stage if the restriction isn't
reasonable and fair.
My guess that Ofcom will be unable to provide the necessary evidence of
harm, caused by some material it currently completely prohibits. It will
certainly not be the first regulator, which has been unable to do so,
despite them trying extremely hard to maintain their own status quo.
Ofcom should therefore allow the broadcasting of "R18" standard material,
simply because it cannot show that any harm it causes really does justify
prohibition. The current prohibition is grossly disproportionate. This fact
alone renders any other arguments I have made here almost superfluous. I
repeat that I should not have to justify why I should be free to make a
choice for myself whether to watch R18 material on subscription television.
Such a position is contrary to my Human Rights. Ofcom must properly justify,
why they believe such a choice has to be denied to me.
I am grateful for this opportunity to put my views forward, and hope that
Ofcom will reach sensible conclusions, which are properly proportionate, and
respect the right to freedom of expression and draft the final version of
their programme code accordingly.
Shaun Hollingworth,
September 2004
