Ofcom Broadcast Code Consultation

(11-10-2009 09:36 )aaron Wrote:  

(11-10-2009 08:28 )firekind Wrote:  the best thing that could happen is for the channels to be banned on tv. they would just move online and ofcom would have nothing to do with setting rules.

If they move online they will die quite quickly. Adult Live couldn't make a live online show work and Sex Station online is struggling for callers too.

This is not a fair comparison.
The online webshows are at present having to compete with the TV shows for callers.
If there were no TV shows, presumably the online webshows would get a lot more callers.

(11-10-2009 07:15 )admin Wrote:  At least two of the channels have suggested in this forum that people here could make their views known to Ofcom, but it seems that nobody took the suggestions seriously. More recently another of the channels has discussed the matter with me at length, but I had not posted anything here on the subject yet because the last consultation has been missed anyway.

I know that one representative from one of the channels did. Thing is, a "why don't you write to Ofcom" message on here isn't really going to provoke people into action is it?

The same message outlining exactly what Ofcom are looking to do, or even have done in the past, with these channels, is far more likely to provoke a reaction from most on here I would have thought because I have no doubt it would show up Ofcom as the inconsistent hypocrites that they undoubtedly are.

I would guess a lot more goes on between Ofcom and these channels than we get to hear about. If that is the case, the channels should be highlighting it a lot more than they do.

It's been noticeable lately that a few of the channels have started pushing things a bit. In my opinion, nothing has been shown that is beyond the pale for a specialist channel in it's own section amongst the channel listings. Despite that, I suspect some letters have flown out from Ofcom HQ about a lot of it though. My argument is, that if that's the case, then people from the channels should be highlighting all the instances because that is what would be most likely to get people worked up about Ofcom's rather pathetic nannying.

And DigitalDave's point is a valid one. Yes, the channels need barristers of course but they also need the support of people that watch the channels. For example, if Ofcom have 2 people complaining about something shown on one of these channels but then have 300-400 people saying they saw nothing wrong with it that has to help the channel's case surely?

(11-10-2009 11:11 )MARCCE Wrote:  And DigitalDave's point is a valid one.

You're altering what Digital Dave said, which was that "they throw tens of thousands at barristers instead".

The word "instead" indicates that Digital Dave believes barristers are an alternative to public support, whereas in reality you cannot take on Ofcom effectively without having proper legal representation.

(11-10-2009 11:30 )admin Wrote:  

(11-10-2009 11:11 )MARCCE Wrote:  And DigitalDave's point is a valid one.

You're altering what Digital Dave said, which was that "they throw tens of thousands at barristers instead".

The word "instead" indicates that Digital Dave believes barristers are an alternative to public support, whereas in reality you cannot take on Ofcom effectively without having proper legal representation.

Dear me, no it doesn't. It implies that the channels favoured a strategy of simply hiring lawyers at vast expense rather than exploring other approaches in addition to this, such as public consultation.

Of course they need legal representation, this point is so obvious as to not require stating.

Just so you know, I've worked in the media, including businesses closely related to the babe channels, for two decades. I also work in property. I know exactly how lawyers work and how they will seek to maximise any opportunity for their own ends.

Get off my back 'admin' (who, let us not forget, is a lawyer apparently!).

(11-10-2009 10:25 )TheWatcher Wrote:  The online webshows are at present having to compete with the TV shows for callers.
If there were no TV shows, presumably the online webshows would get a lot more callers.

But there would always be TV shows, because even if they were banned some of them would go encrypted and continue to broadcast. I believe they would still get more callers than webshows who would still struggle to compete.

I had previously asked one of the Broadcasters if a rep from the PTVBA could sign up and let the forum membership know what their overall strategy is with Ofcom. And what the forum membership could do to help. No results so far....

(11-10-2009 09:33 )brummie Wrote:  Don't know if anyone from the production companies of the Babeshows reads these boards but if so a couple of questions:

1. What precisely does the European directive have to say that affects the late night content of Babeshows and how learly is this set out.
2. Is the European directive a mandatory document binding on all member states or merely a reccomendation or voluntary document.
3. Is Ofcom aware of the European broadcasting document and the answers to the above.
4. Would it be benificial for myself and other members of this board to bang off an e-mail to Ofcom letting them know of our displeasure with its behaviour towards the shows, or would this serve to inflame the situation even more
   

As Danvox points out in his post ...."The vast majority of the responses seem to have cut and pasted wording direct from the website of a religious group. It's easy to spot them, they all quote the AVCS Directive, and clearly haven't got a clue what it is. (50% of content must be EU made, one country can ban content aimed at them from from another, children have to be protected from harmful content)."

would it be possible for someone to draft here a response for board members to also cut and paste off to Ofcom.

I had previously asked for a similar question to be passed on:

(17-09-2009 23:28 )vostok 1 Wrote:  Hofmiester: I am currently drafting a letter to Ofcom, it would be a big help if you could ask your bosses to ask their Lawyers these three questions and let me know.

1) Is it correct to say that the Ofcom Code has never been laid before Parliament and therefore is not law and can only be used as a guide and should comply to current legislation, specifically the EU Television Without Frontiers directive?

2) Is the Ofcom Code simply a set of guidelines to current broadcasting law and nothing more as it is not on the Statute Books and has not been laid before Parliament?

3) If you follow the guidance under the Television Without Frontiers directives you would comply with the law, so why have you been fined for broadcasting what Ofcom call "Adult sex material"?

Since The Department of Culture Media and Sport states that “In order to encourage free movement of broadcasts, all broadcasting must comply with the European Directive, “Television Without Frontiers” or TVWF.

Broadcasting matters covered by the Directive include sports rights, right of reply, advertising, sponsorship and protection of minors.” The key word there is MUST. All broadcasting MUST be compatible with the TVWF Directive.

Article 22 of TVWF:

1. Member States shall take appropriate measures to ensure that television broadcasts by broadcasters under their jurisdiction do not include any programmes which might seriously impair the physical, mental or moral development of minors, in particular programmes that involve pornography or gratuitous violence.

2. The measures provided for in paragraph 1 shall also extend to other programmes which are likely to impair the physical, mental or moral development of minors, except where it is ensured, by selecting the time of the broadcast (post watershed topless content, as you do) by any technical measure (the ability for parents to remove all 900 channels from the Sky Digital EPG and the ability to delete seleted channels from freeview, as you do) that minors in the area of transmission will not normally hear or see such broadcasts.

3. Furthermore, when such programmes are broadcast in unencoded/Un-encrypted form Member States shall ensure that they are preceded by an acoustic warning or are identified by the presence of a visual symbol throughout their duration.
________________________________________________________________​________________________________________________________________​__________


So, the way I see it by explicit instruction from the Department of Culture Media and Sport, the above, from the TVWF Directive, must comply with the Ofcom Broadcast Code and current Broadcast Law.

It follows then that Ofcom cannot have applied the TVWF rules correctly. This quite obviously goes against the stated objectives of TVWF to create a single market and, affects those `fundamental public interests` such as Freedom of Expression with regard to TV broadcasting.

So if the Babe Channels were to continue to show a warning message (as has already been done with the PTBA advert), and show a small “18” certificate after 10pm then the broadcast would be compatible with TVWF Directives as recognised by The Department of Culture Media and Sport.

Perhaps all those (unjustified) fines were illegal?

Thanks.

This was the response:

(08-10-2009 00:31 )Hofmiester Wrote:  Firstly Vostok, appologies, sorry I missed this post - thanks for hilighting it in another forum. You have some VERY valid points, and if you dont mind I would like to take some time to post a considerd reply.

Most of these issues have been taken up with OFCOM, and you would be asstounded to hear some of their replies and excuses. I will point out that the TWF directive has now been superceaded by the "Audiovisual Media Services Directive" AVMD, which frightingly now gives OFCOM the additional power to regulate the Internet (And they already have started , you will have noticed that many of the stations no longer promote a web address)

I very much applaud your effots in writing to OFCOM, this is actualy what the industry needs, as OFCOM's claime that there is no consumer demand for these types of stations. They base this on studies and 'Consumer Focus Groups', but if you were stuck in a room at OFCOM with 11 other people you had never met before, would you admit you jerk off to a TV babe nightly. Their data is flawed by its own nature, and they use that against us.

You may be interested to know that most of the Adult Stations are members of a Trade Organisation called the PTVBA (Participation TV Broadcasters Association) - there are a couple of stations who arnt members, and you can tell who they are because they have no interest in the long term viability of the industry, and will proberbly be the next to have their knuckles wrapped - but we are all tared with the same brush.

firekind, I'm afraid a TV ban and move to the net will not safeguard the existence of these channels. It is at best an interim measure. At worst, the Audiovisual Media Services Directive will eventually require film-style classification and regulation of online (IPTV, web gaming etc.) services.

They are trying to close perceived legislative loopholes. The only real course of action is to force Ofcom to comply with the legal framework that safeguards our fundamental rights as adults to watch any and all legally available material via TV (and hence the web).

The Comms Act 2003 does not permit Ofcom to break the law with regard to our Constitutional Rights (as defined by Statute Law, Common Law and legal precedent). Ofcom are also legally bound to uphold the HRA 1998 and the Case Law of the ECHR.

Here's a potted history of TV regulation:

The ECHR has declared that "It is undisputed [amongst 17 international judges] that a broadcast licensing system cannot be used to restrict any legally available material" (Groppera AG v Switzerland, 1990).

In 1990 hardcore was illegal in the UK, thus the ITC could legally ban "real sex" from our TV screens. However, in 2000, while performing a Judicial Review of the actual meaning and application of the VRA 1984, the High Court found there was no evidence of "any harm which may be caused" to children viewing hardcore at R18 in the home to allow the BBFC to continue to ban real 'hardcore' sex at R18.

Real 'hardcore' sex thus became legal in R18 'sex works' (it was already allowed in 18-rated non-'sex works' - e.g. The Lover's Guide, Romance etc.). The ITC tried to whitewash the situation by replacing their original "real sex" description with "R18" but, this was still illegal under the TVWF Directive and the 1990 "legal material" ruling from the ECHR. In short, when the High Court found no evidence to support the "any harm which may be caused" to children test with regard to hardcore sex in the VRA 1984, they shut the door on any more stringent tests such as "serious impairment to moral or psychological development" in the TVWF Directive. The UK Constitution doesn't recognise ANY possible harm to children from viewing real sex either in 18-rated non-'sex works' or R18-rated 'sex works' - and that's by order of the High Court no less.

From a rational/biological perspective, it is impossible for Nature/evolution to produce a creature that can be morally or psychologically damaged by a full working knowledge of its method of reproduction no matter what its age. Only non-rational, cultural and religious beliefs claim this is not the obvious truth. Although everyone's fundamental right to believe bullshit is guaranteed by international Human Rights law, non-rational cultural and religious beliefs cannot be used as an excuse to suppress or restrict the rights of rational non-believers.

As far as I'm concerned Ofcom don't have a legal leg to stand on. In fact, they're in breach of so many laws and precedents I'm surprised the Board hasn't been arrested for Human Rights violations.

Now, the whole point of the TVWF is to ensure a level playing field for Euro-wide TV companies. Ofcom have the power to proscribe (i.e. ban) any and all foreign stations that don't conform to UK law. In 2000, the ITC recommended to the DCMS that SCT (the hardcore Satisfaction Channel TV) should be proscribed - 9 years on and access to that channel is still able to be sold in the UK. The DCMS has done nothing, indeed, they claim to be "considering the matter". In 2005/6 (iirc) however, Ofcom recommended Xtasi be proscribed for beaming violent hardcore material into the UK - it was banned within weeks of the recommendation. So what's going on with SCT? The DCMS (the Government) CANNOT proscribe vanilla hardcore channels BECAUSE its is legal to be viewed in the UK on TV by order of the High Court, ECHR, HRA and the UK Constitution. Ofcom are actively breaking The Law and Constitution of this land. Any move against SCT will result in legal action by the owners and the Ofcom Code being ripped to shreds by the TVWF and other EU Free Trade agreements. The DCMS thus do nothing and rely on public ignorance to maintain the illegal "status quo" created by the ITC following the High Court ruling in 2000 and continued by Ofcom to the present day.

I do not know what's going on in the minds of the British public but, we pay taxes so that the Government and laws of this land act to protect our lives, rights and property. No one in their right mind would pay to have their rights restricted and lives oppressed, would they? You do not pay taxes to have your rights trampled on by unelected jobsworths who've clearly missed the point of their entire existence. Ofcom exist to ensure your right to view what you want on TV whilst ensuring you don't get ripped off in the process. They're supposed to create an environment for TV and telecoms companies to thrive and compete across Europe to generate foreign income and keep this country afloat. Instead, they have created a situation in which the only way to watch LEGAL 'R18-type' material on TV is to subscribe to foreign satellite services and thus make them richer and this nation poorer. Ofcom have decided that the only way to ensure protection of the under 18s is to make UK TV safe for the under 18s no matter what time of day a programme is broadcast or what other technological methods are employed to restrct access. The point is however, there is NOTHING on sale in the UK that is known to be 'morally or psychologically' harmful to people under 18 thus, Ofcom's restrictions are simply infringing on the rights of adult viewers for NO REASON WHATSOEVER. Ofcom's rules are completely and utterly pointless and arbitrary and rely ONLY on belief-driven bullshit.

Thanks for the above post IanG.

Ofcom are there to provide guidance on broadcast regulation and ensure those that are licensed operate within the remit of that license.

Ofcom have a code of practice which if followed you will not fall foul of the various broadcasting laws as it should provide guidance only.. However this code completely ignores recognised broadcasting regulations (DCMVS own and TVWF) so how can you be fined and punished under it? And why do the Babe Shows Barristers who were recently paid a colossal £250,000 not fight the fines on these grounds?

As you said in your post: The R18 classification was created in 1982 in response to the recommendations in 1979 of the Home Office Committee on Obscenity and Film Censorship chaired by Sir Bernard Williams.
In 2000 a pornographic distribution company wanted a R18 certificate by the BBFC for one of their movies. Home secretary Jack Straw intervened and wanted to prevent its release, saying that Hardcore pornography was ‘harmful’. When the distributor challenged this in court, no evidence could be presented of the associated “harm” and we have the R18 as it exists today. Why do the broadcasters of the Babe Shows not want to challenge Ofcom in court? They obviously have more than enough money to do so. They have the evidence on their side. Why haven’t the barristers (who have made £250,000+ in recent times) recommended this?

Ofcom’s Statutory Duties
Under the Communications Act 2003:

“ 3(1) It shall be the principal duty of Ofcom, in carrying out their functions;
(a) to further the interests of citizens in relation to communications matters; and
(b) to further the interests of consumers in relevant markets, where appropriate by promoting competition”
Ofcom’s specific duties fall into six areas:

1. Ensuring the optimal use of the electro-magnetic spectrum
2. Ensuring that a wide range of electronic communications services - including high speed data services - is available throughout the UK
3. Ensuring a wide range of TV and radio services of high quality and wide appeal
4. Maintaining plurality in the provision of broadcasting
5. Applying adequate protection for audiences against offensive or harmful material
6. Applying adequate protection for audiences against unfairness or the infringement of privacy


Ofcom’s Regulatory Principles

* Ofcom will regulate with a clearly articulated and publicly reviewed annual plan, with stated policy objectives.
* Ofcom will intervene where there is a specific statutory duty to work towards a public policy goal which markets alone cannot achieve.
* Ofcom will operate with a bias against intervention, but with a willingness to intervene firmly, promptly and effectively where required.
* Ofcom will strive to ensure its interventions will be evidence-based, proportionate, consistent, accountable and transparent in both deliberation and outcome.
* Ofcom will always seek the least intrusive regulatory mechanisms to achieve its policy objectives.
* Ofcom will research markets constantly and will aim to remain at the forefront of technological understanding.
* Ofcom will consult widely with all relevant stakeholders and assess the impact of regulatory action before imposing regulation upon a market.

As you correctly say Ian G: Ofcom have chosen to ignore European court of Human Rights Case Law, it illegal under the terms of Article 10 of the HRA to use a broadcast licensing system to restrict any legally available material as was shown by Groppera AG v Switzerland, 1990. R18 is legally available material, and the output of the Babe Shows is nowhere near R18 level. So why the threat to "pull the plug" on Babe Shows, within hours, as Hofmiester said?

Ofcom are satisfied that their current stance is correct and legal. It is not. The broadcasters should be pushing for a Judicial Review. Why don’t they?

For what its worth, this is a a battle that has been going on a long time. I contributed to the original consultation several years ago when there were actually high hopes that R18 would be allowed on subscription channels. The report that Ofcom produced was shoddy, used flawed statistics (my degree included a LOT of statistics) and still could not be used to justofy a ban. So they went down the route of Parents cannot be trusted to keep their pin numbers safe, and children cannot be trusted not to use them, and emotional or developmental harm might result from seeing R18 stuff. So far in excess of the European Law that it was laughable, but then they rolled out the classic government phrase "precautionary principle" - ie it doesn't matter how small the chance is of something happening, we must ban it anyway (something they only apply selectively of course). And we wound up with the current code.

One side effect of this, when I later complained that a channel was breaching the code by showing R18 material (and in one case material BEYOND R18) in the hope that forcing ofcom to fine a channel might force the channel to fight back and win, Ofcom refused to investigate my complaint on the grounds that, as I was an acknowledged supporter of R18 on the telly, my complaint was clearly vexatious and if I complained again they would consider that I was deliberately wasting their time and further steps would be taken.

So they had proof that their code was being broken, but refused to do anything about it.

They know that their code does not comply with EU law, but they believe that no-one will do anything about it because of the legal costs. The first one to stand and fight will spend a LOT of money, but every channel will benefit from the increased call rates, so it is not seen as cost effective. Now if the Adult Channels Trade Organisation actually agreed to jointly fund a legal challenge I'm pretty sure it would be successful, and the costs would be shared. Makes sense to me - I wonder why they haven't done it?