Speech on broadcasting regulation in a converged world

29 October 2013

MONDAY 16 OCTOBER 2013

Ed Richards, Chief Executive, Ofcom

PDF File Speech on broadcasting regulation in a converged world

Introduction

Good evening.

Let me start by going back in order to look forward.

Our current system of broadcasting regulation began life in the analogue era, an age of two or three channels, one living room television, and nothing much at all after midnight, before breakfast or during much of the day.

As late as 1972 total British television output was capped by law to 9,900 hours per year across BBC1, BBC2 and ITV.

If you wanted audiovisual content - not that anyone called it that then - then scheduled linear TV was it - not that anyone called it that either.

This simple, static environment began to change radically from the 1980s onwards, through the advent of multi-channel television, then via the introduction of video on-demand, catch-up viewing and exploding with the phenomenon of mobile connectivity.

The number of channels, the range and volume of available content has since proliferated. Today, Ofcom licenses over 2,000 broadcast services many of which broadcast 24 hours a day.

In moving from TV aimed at mass appeal, and almost exclusively in the medium of English, to a diverse, often niche, multi-lingual environment the regulator's task has inevitably shifted.

Gone are the days of just a few established, big broadcasters each with a strong culture of compliance. Now, we also regulate a universe of smaller, sometimes transitory, providers operating often on a shoestring and often with little experience of comprehensive broadcast regulation.

And, of course, the production and consumption of audio visual content continues to be transformed, often blurring the lines of traditional regulation.

But while the environment has changed radically, the evidence suggests that people's underlying concerns have not. Audiences continue to expect a level of assurance through certain fundamental protections and the safeguarding of critical freedoms.

So today I want to discuss how:

Ofcom continues to meet these expectations in today's more complex broadcast environment;
And the nature of some of the challenges to come for both broadcasters and regulators;
And where we think some of the solutions might be found.

Fundamental objectives

So what are the fundamental objectives and where do public expectations lie in relation to audience protection, in the midst of a world of dramatic changes in the broadcast landscape?

The starting point must be freedom of expression. People rightly continue to expect and want a free media uninhibited by unnecessary regulatory restrictions. People are entitled to receive news and information quickly, accurately and transparently, without political interference.

Therefore, freedom of expression will always be at the very heart of our approach to regulation. To which we add three key areas which in many ways reflect the views of the public and Parliament:

People typically want to be protected from illegal and harmful content, pretty much regardless of how it's delivered.
People are entitled to have their privacy respected, both in broadcast content and online services.
And Parliament has made very clear that there should always be a plurality and diversity of voices in the media.

Delivering these goals will become more challenging in a connected world

To date, our system of broadcast regulation has been able to deliver these aims.

It has given broadcasters the freedom to explore challenging subjects and produce strong investigative programmes that play a vital role in informing the public in areas of clear public interest.

There are lots of examples of television broadcast journalism producing strong investigative programmes; with Exposure, ITV's programme about the Jimmy Savile abuse story and Panorama's undercover investigation of abuse carried out by staff at Winterbourne View care home to name only two.

It is worth noting here that broadcasters themselves have actively refuted the idea that the regulatory framework inhibits their ability to undertake investigative journalism.

Broadcast regulation has also allowed broadcasters to develop effective compliance regimes and a culture of compliance, operating within the context of a clear regulatory framework. And this approach continues to enjoy widespread support from industry, parliament and the public.

Yet the further we move into a connected world, the more it seems that the current regulatory structure may struggle to meet evolving audience expectations.

Audiences are inevitably going to be unclear about the levels of regulation that apply to content accessed through different distribution mechanisms and through different devices, let alone through connected TVs offering content similar or identical in form, but emanating from different jurisdictions, through different distribution mediums and from completely different regulatory contexts.

With this backdrop I'd like to look at some specific areas of concern, all of which help to illustrate the balance we have to strike between, for example, freedom of speech, and protecting audiences from harm - as well as illustrating some of the challenges of today and the challenges to come.

Protection of minors

Protection of minors is a crucial part of Ofcom's work, whether that is by:

Protecting a child from taking part in a potentially dangerous eating challenge on children's television;
Preventing children from watching a music video that contains explicit sex, drug use and offensive language;
Or protecting children from other unsuitable content such as violence.

The standards we have set to meet these objectives in our Broadcasting Code are among the most important.

For example, we have rules in place for linear content which prohibit the broadcast of BBFC rated R18 material and ensure that strong sexual content is behind robust access controls. ATVOD similarly prevents R18 content from being shown without sufficient access controls. In the past year Ofcom has imposed financial penalties on three ATVOD notified services - 'Playboy TV', 'Demand Adult' and 'Strictly Broadband' - after these services provided R18 equivalent material without adequate measures in place to ensure that those under 18 would not normally see or hear it.

The Broadcasting Code also has rules to ensure strong violent content and language will not be broadcast at a time when children are likely to see or hear it. We have recently found Channel 4 in breach of the Code for broadcasting violent content during an episode of Hollyoaks. The episode in question showed a violent fight scene ending with a character being pushed into the path of a high speed train and in our view, the information and context were insufficient to prepare younger viewers or their parents for the violent, intense and shocking scene.

It's important to note that whatever the issue, our decisions in this kind of area reflect generally accepted standards. That is why we conduct and publish regular research to ensure our decisions are informed by current public opinion.

Challenges for the future?

But looking ahead it is clear that connected devices increase the chances of potentially harmful content reaching children. Content that looks and feels just like TV will be delivered on TVs, but won't be regulated to broadcast standards.

We only have to look at music videos here, and the fact that UK regulated on-demand services such as Vevo show strong content on music videos, at any time during the day, that are clearly not acceptable to show before 9pm on scheduled linear TV.

Take Rihanna's video for the song S&M, for example, which contained themes of sexual bondage, dominance and sadomasochism. This video was a breach of the Broadcasting Code, but can be easily found on the video on-demand service Vevo, accessed through an app on a connected TV, tablet or mobile phone.

Or a more recent example is the Robin Thicke music video for Blurred Lines. This video has two versions: a rated and an unrated version. The unrated can be watched on Vevo on any connected device, as an immediate alternative to the rated version. Albeit, there is an "explicit" warning in the bottom left hand corner, but I suspect this will attract rather than deter younger audiences.

We have already given considerable thought to meeting this challenge, which we explored in our response to the recent European Commission Green Paper on media convergence.

First, full broadcast-style regulation will not be the right way to protect audiences in a way they expect in an online context. We should however consider whether a more harmonised approach to standards protections across linear and on-demand programme services might be necessary to meet the challenges of convergence and audiences' expectations of all audiovisual content, regardless of its means of delivery.

Second, we have to look at alternative mechanisms. There will be an important role for the government, industry and regulators to provide audiences with information, education and a framework of personal responsibility through which individuals and families can exercise informed choice.

Third, we need to consider the potential roles and responsibilities of other players in the system, in particular broadcasters, device manufacturers and platform providers.

The Government has made an important first step in this area, by making clear that it expects industry across the internet value chain - from retailers to device manufacturers - to ensure all internet-enabled devices have the tools through which children can be kept safe if parents know how to use them.

The Prime Minister has asked Ofcom to have a role in reporting on aspects of this work, and we will be pleased to do so.

This is an important development, alongside parental supervision and education. But like everyone else we remain open minded about whether such initiatives are the answer to adequate protection of children in the longer term.

Hate speech

Just as for the protection of minors, the Broadcasting Code is clear and comprehensive in its provisions on hate speech, whether that is:

A programme that encourages violent behaviour against homosexual people;
One that advocates that all Muslims should attack or kill those who disrespect the Prophet Muhammad;
Or a broadcast that includes an indirect call to action to members of the Sikh community to take violent action.

We have to take the issue of incitement to crime or violence extremely seriously. On the few occasions where this issue has arisen, we have taken, or are taking, strong action.

However, the balance between freedom of speech and ensuring audiences are adequately protected, is of particular importance and relevance here. For example, last year Ofcom sanctioned a community radio station, Sister Ruby, for broadcasting statements which we considered were likely to encourage or to incite the commission of crime against homosexuals and were likely to encourage others to copy this behaviour.

In reaching this decision, Ofcom had to take careful account of the broadcaster's and audience's right to freedom of expression, as set out in Article 10 of the European Convention on Human Rights. This case also required a delicate balance with Article 9: that everyone "has the right to freedom of thought, conscience and religion"; and Article 14: which concerns the right to enjoyment of human rights without discrimination on grounds such as religion.

Challenges for the future?

While broadcast regulation works very effectively in preventing hate speech within the regulated environment, we need to be clear that we work within a limited framework. Ofcom is not capable of stopping audio‑visual hate speech across the UK.

If problematic content comes to our attention and falls within the boundaries of the broadcast regulated environment then we can take quick and effective action. However, the connected world provides almost unlimited opportunity to communicate with communities around the world, to distribute extremist material and to encourage or to incite hate. This could be via a blog, a lecture delivered directly via skype, or a new linear TV or on-demand service from outside the EEA delivered straight onto the connected TV in any British living room.

This content will reflect the inherently global nature of the internet and no doubt, the full diversity of opinion around the world. These services may not be regulated within the EEA and therefore will in all likelihood not be subject to the same regulatory framework, including rules prohibiting incitement to hate.

Presenting distressing content in news

Our duties extend also to protecting audiences from potentially harmful or offensive material and to ensure that news is presented with due accuracy. In this context, a third area which I want to highlight this evening is that of the presentation of potentially distressing live content.

Again, we can and do act to regulate this area through the Code, whether we are talking about:

Live news coverage of war crimes in Syria;
Footage of a live car chase which ends with the driver committing suicide with a handgun;
Or coverage of terrorist attacks like the 7/7 London bombings.

The established regime helps to ensure that broadcasters take appropriate steps to ensure the authenticity of content they use and think carefully about its presentation.

Creating the trust of audiences is vital and we know that audiences have much higher levels of trust in TV news compared to the other ways they access news. The latest figures suggest that 70% of people trust TV news the most; compared to 9% for radio, and 5% for newspapers.

Some of the judgements can be very difficult. A good example to illustrate this point is the coverage of the death of Colonel Gaddafi.

The broadcast footage shown included challenging images of the former Libyan leader badly injured shortly before his death, which clearly had the potential to upset or offend. Much of the footage was filmed on mobile phones.

We received over 100 complaints about this news coverage across a range of broadcasters. The complaints said the footage was too graphic and shouldn't have been shown before the watershed. Our view in this case was that the coverage of this significant news item was carefully presented by broadcasters so that it was appropriately limited both before and after the watershed. There are various other examples, that can easily be drawn to mind, in which careful judgements were made about what and how to air difficult, distressing content.

But again, in an era of such dramatic technical, consumer and audience change, there are going to be major challenges for the future.

Challenges for the future?

The proliferation of user generated, instantly distributed news footage has considerable benefits for both broadcasters and the public. News broadcasters have made very productive use of mobile phone footage and so called citizen journalism to report a variety of news stories as they develop. In this way mobile phone captured content can be seen simply as an extension to traditional eye-witness testimony that has been a key feature of broadcast news output for many years.

The Channel 4 programme Sri Lanka's Killing Fields broadcast in 2012 is a fascinating example of investigative journalism that used a dossier of evidence including mobile phone footage to report on a controversial and difficult issue. This is something that would not have been possible 15 or even 10 years ago.

However the increasing use of such content will present particular challenges for both broadcasters and of course regulators.

Online media is currently very different to broadcast media. In the old world a cameraman from an established broadcaster would have arrived at the scene and thought about what to film. This content would then have gone through an editing process and been carefully presented.

We are now in a world where members of the public film content themselves using their mobile devices - remember mobile penetration in the UK is about 130% and rising every year. They can then give or sell footage to newspapers that can put this video content online within minutes. Or alternatively upload content themselves onto video platforms like YouTube and see it spread virally around the world in a matter of minutes.

Broadcasters now have to compete with news outlets not just from the print media in digital form, but from endless other online media service outlets.

Not long ago we were in a world where the public would go to the broadcast news first to get a sense of what was going on in the world and wait for the newspapers the next day to get their in-depth analysis on the subjects they cared about.

Now we are seeing people go to Twitter first to find out what's happening, followed by online print or online broadcaster services, and then the linear broadcast news. All long before the newspapers arrive on the doorstep.

This direct competition with the online world and within the online world, and the need for speed, the competition to be first, will inevitably change the way broadcasters think and react to covering news.

Broadcast journalism will continue to play an essential and unique role in bringing news to the public's attention. However, broadcasters will need to be vigilant to ensure that their desire to air content as quickly as possible does not undermine their standards, including their duty to broadcast with accuracy and in a way that protects audiences appropriately. This is, after all, an important component of why television news enjoys such a commanding position of trust among audiences across the UK.

Privacy

The final area I want to touch upon to begin with is the ability of the Code to uphold people's protection from unfair treatment in programmes and unwarranted infringements of privacy, whether that be for example:

Secret filming in a hospital to uncover neglect;
Door stepping a rogue trader
Or hacking someone's email.

The Broadcasting Code includes rules and practices that broadcasters should follow in making and broadcasting programmes.

Under the fairness aspects of the Broadcasting Code, these practices include obtaining informed consent from contributors; taking care to present material facts; and offering an opportunity to contribute.

Under privacy, it covers issues of consent, door stepping, people caught up in emergencies/victims of accidents, matters in relation to under 16s and vulnerable people.

Ofcom has always sought to defend robustly the broadcaster's and the audience's right to freedom of expression. It is of course absolutely essential that broadcasters continue to investigate and explore issues which are in the public interest.

When considering fairness and privacy cases, the balance between the rights of the broadcasters to freedom of expression and protecting individual's right to privacy is often a complex one: neither right takes precedence over the other, and each and every time we have to give very careful consideration to these competing rights.

Two good examples to illustrate this point include:

Firstly, our investigation into the Sky News Channel, after it obtained and broadcast material accessed by gaining unauthorised access to the email accounts of John Darwin and his wife, Anne.

Here we concluded that the broadcaster's right to freedom of expression outweighed Mr and Mrs Darwin's expectation of privacy, and that it was in the public interest for Sky News to have obtained the material in this way.

This case was very close to the line. It was a fine judgment.

Secondly, Ofcom's investigation into the Channel 4 Dispatches, Undercover Mosque. This included secretly filmed footage taken from mosques and other organisations, which featured the teachings of several speakers which the programme alleged to be homophobic, anti-Semitic, sexist and condemnatory of non-Muslims.

The programme stated that it had discovered extremism being preached in this country: "… an ideology of bigotry and intolerance spreading through Britain with its roots in Saudi Arabia".

This programme raised considerable concern as you can imagine and we were under considerable pressure to take action from the Kingdom of Saudi Arabia & the Royal Embassy of Saudi Arabia, as well as the Islamic Cultural Centre and the London Central Mosque.

However, our investigation found that the Dispatches programme had uncovered matters of clear public interest, had handled the material responsibly and that there was no evidence that the audience had been misled.

We also found that there had been no unfairness to those featured in the programme and any infringements of privacy that had occurred had been warranted in the public interest.

I am confident that this was entirely the right decision.

But there are, again, in this area new challenges to confront.

Challenges for the future?

Firstly, the measures we have in place to protect individuals' privacy in broadcast programmes - and we do find breaches of privacy as well- are currently not reflected in the online world. There are no regulatory protections, for example, for privacy for UK regulated video on-demand content and no relevant rules to protect individuals' privacy more broadly online.

Secondly, the increasing adoption of social media means there are many, many more opportunities to have your privacy infringed. For example, the ways journalists gather content has changed. We are now in a world where it is not uncommon for journalists to find information from people's social media profiles, who perhaps unwittingly, may not have set the right privacy settings.

Adapting broadcast regulation in a converged world

Let me now return to the content regulation model and the broader question of how it adapts to the emerging digital age.

Having set out just a few of the challenges posed by the online world, I want to briefly discuss how we might begin to approach them.

One important question for policy makers is whether changing consumer and social expectations - and changing use of new technologies - change the need for regulatory intervention to meet the goals which remain constant.

Our research into audience protection in a converged world, which looked at audience expectations, suggests that for now, the way in which content is delivered does have an impact on what protections and assurance audiences expect. However, we need to bear in mind that this may be transitory.

Thinking about the relatively near future, however, any revisions of the regulatory system need to be flexible enough to take account of consumer expectations associated with different devices and different means of distribution.

So what might broadcast regulation look like in the future?

We believe we should be moving, gradually, towards a tiered approach, ranging from a comprehensive set of standards for the content people watch most and where they expect the highest level of assurance, to a minimum standard that includes core areas of protection for content where audience expectations are lower.

At the most comprehensive end is the PSB licensed broadcast content. Here, I think the case for changing established regulation, is weak. Audience trust is high and the culture of compliance is strong, and effective.

At the other end of the spectrum are open internet services that are not captured by UK or EU jurisdiction and are not remotely TV-like.

This would include content delivered via social networks, search engines and video apps and include user generated content.

The nature of the way content of this kind is generated and distributed means that broadcast-like standards, with the emphasis on editorial obligations and editorial judgement, are not at all appropriate.

Moreover, audiences tend to understand that they are in an environment which, if not quite the content wild west, offers little if any regulatory assurance about what they might come across, or what their children might come across.

Recent litigation, of course, has made clear that the virtual world of social media is not quite as much of a wild west as perhaps some thought it to be. Our defamation laws, it turns out, do apply to tweets just as much as any other form of publishing.

And of course, other areas of the law and new self-regulatory approaches such as online filters may also apply here and play an important role.

But if it is clear to audiences what they can expect at either end of this content spectrum - PSB, with everything it represents to people at one end and the open, 'buyer beware' internet at the other, then working out what lies in between is arguably trickier.

To start with there is the area of content that covers both licensed non PSB linear services and the notified TV-like video on-demand services.

This quite broad category includes the cable and satellite channels, TV and radio-like video on-demand and catch-up services delivered on connected TVs and other connected devices. The boundaries between existing delineations in this area are already blurring. It underlines the challenge very clearly when we see services that are essentially indistinguishable - between linear and on demand - on the same device, over networks that are invisible to the consumer, but which operate with an entirely different set of rules.

One solution to addressing audience expectations here might be to start by asking all such content to adhere to minimum standards that are held in common across media. These minimum standards could be based on the absolute core of what concerns the public and Parliament.

This could build on the current protections in the ATVOD Code for Video on Demand, which already include protections against hatred, sexually explicit content and some protections against consumer harm. It could then, for example, include more comprehensive standards regarding the protection of minors, as well as protecting individuals against unwarranted infringements of privacy and accuracy in news.

Such minimum standards would therefore offer a slightly higher level of protection than the current ATVOD Code and ensure that audiences are protected from the worst cases of harm.

It would also create a more harmonised approach to standards protections across linear and on-demand programmes, in line with what we know about audience expectations.

There would then be a question about how to treat the additional aspects of the Broadcasting code, including protection from content that is more concerned with matters of generally accepted standards, such as offensive language and low level sexual content and violence, and of course impartiality.

It would of course be possible to leave these to apply to licensed linear services alone, or alternatively you could draw a consistent line with on-demand services, which would mean either levelling up, or levelling down.

In the status quo case, the challenge would be whether this approach continues to make any sense to audiences today, next year or more importantly in five or ten years time.

Importantly, a model which looked at least to make sense of this broad category of TV-like video could also include a framework of other mechanisms and support:

Clear information, such as signalling and ratings;
And technology controls, like parental controls and filtering

Clearly, changing the approach is not without challenges of its own, chief of which is deciding what is included for that audience in a connected world and what is excluded.

And as services evolve and audience expectations evolve, a broader set of issues may also come under discussion. At present we operate with a fairly narrow set of criteria in relation to defined TV-like on-demand services. That will inevitably be debated in Europe in the future. We know, for example, that our French colleagues at the CSA are already much more inclined to include a wider range of content as regulated video on-demand services than we currently do in the UK. We also know lots of regulators across Europe who want to discuss this in the future.

Architecture

There is much more to consider in these areas and as we do that, and as regulatory models evolve, we need to consider what kind of framework, what kind of core principles are the right ones to have in the back of our mind.

To consider this briefly, I want to draw on our evidence to the Leveson Inquiry where we were asked about this very question in a slightly different context.

From our own experience, and indeed from the experience of many others, we have a pretty good idea now of the characteristics required for effective, independent regulation. These are I think, in a very visible and transparent way, the foundations stones upon which trust in regulators and regulation can be built.

In the first instance, the regulator must have effective safeguards against undue influence based on:

Independent governance and decision making
Clear public accountability
Clear regulatory objectives and purposes
Clear and transparent processes

Secondly, the regulator should be able to guarantee its independence and accountability through:

Workable membership incentives/obligations to check the rights of people are involved
Independent funding and budget control
Accessibility
It must have - Genuine powers of investigation
Effective powers of enforcement and sanction

These are all characteristics of broadcast regulation and will help it to endure against the challenges to come and to continue to maintain public confidence.

But that will not be enough for a complex world of variation, difference and fragmentation.

We also need to think about a second question; the extent to which we can deliver the purposes, the freedoms and protections through not only statutory, but also through co-regulation or self-regulation where they're appropriate.

When considering the right model of regulation - statutory, co, or self‑regulation, there are among a series, but there is one essential point to consider and that is the alignment of incentives.

Self-regulation is likely to work where the public interest is aligned with the industry's own commercial interest. In some instances there is an alignment and there are specific incentives on companies to adhere to standards. The great example of this in today's world is advertising regulation.

However, there will be some instances where self-regulation won't work very well or indeed at all. For example, services that seek to exploit the vulnerable as part of their commercial model are unlikely to ever have the right incentives to police themselves effectively.

As we grapple with the diverse, disparate world of digital media we will almost certainly need a variable geometry, with statutory powers in certain limited areas at its core, and with further judgements to be made about how best to construct any regulatory architecture beyond, if and where it is judged necessary.

I believe the kind of developments I have described will be only the first phase - where audience expectations are still predominantly driven by a meaningful sense of different delivery mechanisms and in particular of different reception devices. People expect high levels of protection if content is delivered on the TV, but expect less assurance if they seek content on the open internet on other devices.

However, this is a transition. And while this phase may endure for some time to come, I don't believe that the rather helpful reference point provided by the nexus around type of device and means of distribution will last forever.

In the longer run, it is certain that the means of distribution will be almost irrelevant for these purposes, and that the device itself won't matter much either. We will reach a point where consumers will be so familiar with watching content that looks and feels like TV, but is internet delivered to all sorts of connected devices, that these distinctions in audience expectations will probably be gradually wither and die.

We will then be facing a point when existing models really do not work any longer and a significant evolution will be necessary. But one of the features of the present system has been its continuity and its stability, which has contributed to its credibility compared to some other models. So I think that it will be some time before we reach this second, more fundamental realignment phase, and therefore I expect that we will still adhere to relatively established models of regulation for a little while to come.

For now, we are only in the first phase of the evolution, where despite rapid changes in technology, we know people still expect to be given some assurance about their viewing experience in the living room, and that the television is still a meaningful basis for delineating our approach in the minds of a very large number of people.

So for now, we can stick with the TV, whatever challenges that this may throw up.