BROADCAST REGULATION
Television, radio, communications
ARTICLE : 

by Robin Hilton, solicitor

Ofcom, the Office of Communications, yesterday published a revised Broadcasting Code for the television and radio broadcast industries which will come into effect on 25 July 2005. The Code was designed to unify and modernise the codes previously set by the “legacy regulators”: the Independent Television Commission, the Radio Authority and the Broadcasting Standards Commission. It is intended not just to comply with the requirements of legislation such as theCommunications Act 2003, the Broadcasting Act 1996 and the Human Rights Act 1998, but also to deal with the changing broadcasting environment, particularly the growth of digital television, digital radio and the internet.

The 89-page Code seeks to balance the interests of those who need protection (in particular those under 18) with broadcasters’ freedom to include more challenging material. It covers areas such as fairness and privacy, protecting the under 18s, harm and offence, and sponsorship and commercial references. Subject to certain exceptions, the Code applies to radio and television content in services licensed by Ofcom, services funded by the BBC licence fee and to Welsh broadcaster S4C. Certain sections dealing with impartiality, elections, sponsorship and commercial references do not apply to BBC services funded by the licence fee.

Protecting the Under 18s
In order to ensure that people under 18 are protected, no material may be broadcast that might seriously impair their physical, mental or moral development. The 9pm watershed is also upheld, although the transmission of 12-rated and 15-rated services before 8pm on premium subscription film channels is now permitted, provided there are protection systems in place such as PIN numbers.

Potentially offensive material must be justified by its context: this includes a number of factors including time of broadcast, size of audience and the likely composition of the potential audience. Ofcom has also decided not to allow the broadcast of R18 material (hard core pornography).

Fairness
Certain practices must be followed to ensure “fair” treatment, such as obtaining informed consents and not obtaining information through misrepresentation or deception (although this may be warranted in certain “public interest” situations).

Privacy
These provisions deal with what is meant by “a legitimate expectation of privacy”. This may vary, so that even in public places people, in certain circumstances, may reasonably expect a right of privacy. The Code also explores what may be a “warranted” infringement of privacy (e.g. detecting crime, protecting public health, disclosing incompetence that affects the public, etc).

Sponsorship and Commercial References
As with the earlier ITC Codes, the overriding principle of editorial independence is maintained, although there has been some helpful deregulation. Programmes must not be distorted for commercial purposes and it is key to ensure that there is a distinction between advertising, sponsorship messages and programmes. All sponsorship arrangements must be “transparent”.

Undue prominence of products or services where there is no editorial justification is still prohibited. However, there is now scope for “non-promotional” references to products or services if these can be editorially justified and are incidental. The ban on product placement has not been lifted, although Ofcom has suggested that it will consult on product placement later this year in the context of a wider assessment of the broadcast advertising market. With traditional broadcast advertising coming under great pressure, Ofcom recognises that programme-makers and commercial broadcasters need to find other sources of funding for programmes. These rules are designed to prevent programmes from being used “merely as advertising platforms” and Ofcom therefore believes that separate rules on merchandising are not required. This will be welcome news to broadcasters and programme-makers.

Sanctions
Where the Code has been breached, Ofcom will publish its findings and, if the broadcaster deliberately, seriously or repeatedly breaches the Code, Ofcom may impose statutory sanctions (fines, shortening/revocation of the broadcasting licence) against the broadcaster.

Although it is the responsibility of the broadcaster to comply with the Code, programme-makers will doubtless be required to deliver programmes that comply with the Code. How Ofcom will interpret its own codes remains to be seen, but programme-makers and broadcasters should be alive to particular issues, such as door-stepping and surreptitious filming, coverage of emergency situations such as scenes of disaster, programmes made for children, sponsored programming and product placement.

The Code can be found at: http://www.ofcom.org.uk/tv/ifi/codes

This update is © The Simkins Partnership.
The Simkins Partnership website is at: http://www.simkins.com