Ofcom Consultations

(11-02-2011 22:35 )eccles Wrote:  I find a good test for proposed shortcuts is this question:

What would we say if this happened in Zimbabwe?

If it happened in Zimbabwe / Egypt 2 weeks ago / Russia / China / North Korea / Romania / Hungary the UK government and press would be condemming it as a backdoor way of abolishing fair legal process. But somehow it is OK if it happens here.

(13-02-2011 03:21 )eccles Wrote:  

(11-02-2011 22:35 )eccles Wrote:  I find a good test for proposed shortcuts is this question:

What would we say if this happened in Zimbabwe?

If it happened in Zimbabwe / Egypt 2 weeks ago / Russia / China / North Korea / Romania / Hungary the UK government and press would be condemming it as a backdoor way of abolishing fair legal process. But somehow it is OK if it happens here.

Have you noticed how the Dictator has fled the nest,how the poor underlings won there right to become free from the grasps of tyrany?
I wonder when this country will ever become free from the likes of these quangos that have been forced on us!!!!!!!!!

Channel TV, one of the regional ITV franchises, has responded to Ofcoms consultation about revised sanctions guidelines. They refer to a pending Judicial Review. Responses (Sanction Guidelines)

The grounds seem to be that existing rules - let alone updated ones - creates regulatory uncertainty and results in "double compliance". This may relate to sanctions against ITV in general for not producing enough material in 2006 and 2007 outside London (or the M25, which is where Ofcom mistakenly draws the line). Bulletin 126 dated 26/01/09 gives details. ITV was fined £220,000, independent Channel TV was fined £5,000
Bulletin 126
ITV Channel etc Sanction Jan 2009
(Ofcoms own link does not work)

Or it could relate to the 2004 British Comedy Awards where ITV was fined £80,000 for a premium rate fix. Published 2 October 2009
Channel TV Sanction Oct 2009

The first seems most likely though the fine was low. By "double compliance" Channel TV may mean that they are liable for their own programs AND something done by another Channel 3 broadcaster under a collective responsibiliy, but which they have little or no control over.

The point was made as follows in Channel’s grounds for review submitted to the High Court:
“it is incumbent upon Ofcom in adopting new compliance/sanctions policy to provide proper guidance in that policy to non-compliance licensees about the steps that they are required to take in order to avoid sanctions. This was required both as a matter of legal certainty and because without such guidance Ofcom could not properly form any view about the benefits and disadvantages of its new approach since without clear guidance the licensees might adopt an entirely different approach that involves different benefit and disadvantages.”

TalkTalk, who so far as I know do not operate a TV channel, crawl up Ofcoms arse and ask ... no, too rude. Here is what they say:
"TalkTalk Group has reviewed Ofcom’s consultation document setting out the proposed revisions to the penalty guidelines. We agree with Ofcom that deterrence should be the central objective of Ofcom’s practice of imposing penalties for infringements of regulatory obligations and believe the draft penalty guidelines set out all the relevant factors that Ofcom should take into account in determining the level of a penalty."

Virgin Media questions whether the proposed change will achieve Ofcoms stated objectives. They point out that Ofcom are moving way from the Competition Commissions recommended process for setting fines. They also suggest that deterrence should be part of a wider framework that reflects the seriousness of the offence.

Sky takes issue with making specific reference to "unusual arrangements" at ITV in formal guidelines, suggests that non-cooperation can already be taken into account, questions the transparancy of the process (a legal requirement) and points out that Ofcom has shown no examples where the current policy fails to deliver.

Sky also states "Non-cooperation should not include the exercise of legitimate rights of defence including exhaustion of any and all legal and administrative appeals."

eccles, what is this "NWA 2008" Channel TV refer to? This appears to have something to do with 'double compliance'.

I don't know why these broadcasters didn't take the opportunity to point out how vague and subjective OFCOM's Code actually is with regard to rule 2.3, "justifying offensive content by 'the context'". Meaningless drivel is what it is. Indeed, its illegal according to the Comms Act 2003 and OFCOM's DUTY to protect the general public from "offensive and harmful material" is what it is.

The law does not say "OFCOM can use the Code Review Criteria to allow broadcasters to second guess if offensive (and potentially harmful) material can be broadcast". How exactly does rule 2.3 provide adequate protection to the public from the inclusion of offensive and harmful material as the law demands? How exactly does rule 2.3 mean OFCOM and their fucking Code are indeed meeting the Standards Objectives as defined in the Comms Act 2003?

Why can nobody else see how OFCOM have utterly disregarded the law? Why can nobody see that to use the Code Review Criteria from section 319(4) as providing 'the context' to justify broadcasting offensive (and potentially harmful) material is in itself totally and utterly wrong, wrongheaded and, moreover, a means to cover-up OFCOM's dereliction of their DUTIES and Standards Objectives according to the law? The fact that OFCOM regularly quote clauses from THE INSTRUCTIONS TO THEM FOR REVIEWING THEIR CODE when handing out 'In-Breach' notices to broadcasters should tell the world there is something wrong, probably crooked, and quite likely very illegal going on at the heart of OFCOM.

NWA 2008 seems to be the ITV Network Arrangements 2008, the framework under which a federal cluster of supposedly independent regional companies put out a mostly national service.

If Sale of the Century contains swearing and nusity, who gets fined ? And who decides how much Norwich TV gets to contribute and how much advertising revenue they get back ?

The consultation is here. If Ofcom ever published the decision I cannot see it.
http://stakeholders.ofcom.org.uk/consult...08/summary

Finally received the following response from Ofcom after complaining, regarding the further restrictions they imposed on the channels, however, you'll note that they state that no futher restrictions have been implimented post or pre watershed!!! See below:

Thank you for your recent email to Ofcom. It appears to me that your concerns relate to: your belief that Ofcom had added further restrictions to the Adult EPG section without prior consultation; what you see as Ofcom’s failure to apply the findings of our public survey on Attitudes to Sexual Material on Television; and your view that Ofcom has not accurately applied the “generally accepted standards” of the viewing public or complied with Article 10 of the Human Rights Act.



You have asked for us to respond and I will try to address each of these points. I will address your specific point about complaints to and about Ofcom at the end of my email.



Further restrictions



Perhaps the first thing to say is that there have been changes in the way that adult chat services are regulated but not through the introduction of any new or more restrictive rules about pre- or post-watershed adult content. You may be referring to the recent Ofcom regulatory statement on Participation TV (published on 3 June 2010) which is available here:



http://stakeholders.ofcom.org.uk/binarie...tement.pdf



The statement set out the results of Ofcom’s third consultation on participation television, and confirmed Ofcom’s decision to amend the Broadcasting Code to clarify that services designed primarily to promote Premium Rate Service (PRS) lines would not be considered as editorial in nature (and regulated under the Broadcasting Code) but would be treated as advertising. Advertising is regulated under the BCAP Broadcast Advertising Standards Code (the Advertising Code). The consultation set out the new rules and associated guidance under the Broadcasting Code.



Essentially and in line with the current Code, the BCAP Code seeks to ensure that children are protected from material that is unsuitable for them or that could cause physical, mental, moral or social harm and that viewers in general should be protected from serious or widespread offence against generally accepted moral, social or cultural standards. For example, Rule 4.2 of the BCAP Code is substantially equivalent to Rule 2.1 of the Broadcasting Code which provides that: “Generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material,” (see below for further discussion of how Ofcom considers offensive material in light of generally accepted standards).



Ofcom has already published several decisions under the BCAP Code and you can read these in our Broadcast Bulletins, for example:



http://stakeholders.ofcom.org.uk/binarie...sue174.pdf



Going back a little further, Ofcom also consulted in 2009 on further changes to its Code on rules concerning sexual material. But these changes were designed to ensure that broadcasters would be in no doubt about the rules that apply to material of a sexual nature.



If you have any questions about this consultation – or the two participation television consultations that preceded it or indeed the Code consultation - we would be happy to answer them. As you can see, though, any changes made in relation to adult chat channels were the subject of public consultations.



Generally Accepted Standards and the European Convention on Human Rights



Legislative background and the Broadcasting Code



The requirement for regulating content by generally accepted standards is set out in legislation. The Communications Act 2003 (“the Act) requires that “generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection of members of the public from the inclusion in such services of harmful and/or offensive material”

(http://stakeholders.ofcom.org.uk/binarie...endix1.pdf)





This requirement in the Act is therefore explicitly set out in the Broadcasting Code in Rule 2.1 which directly repeats the legal requirement in the Act:



Rule 2.1: Generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material.



Further, Rule 2.3 of the Code states that in applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context. The Code therefore, that is Rule 2.1 and 2.3, does not seek to prohibit offensive material from being broadcast, even if it might be considered to fall below generally accepted standards, but requires the broadcaster to justify the broadcast of such material by providing context. Context includes, but is not limited to, factors such as the service on which the material is broadcast, the time of broadcast and audience expectation. As already noted above, the BCAP Code, under which adult chat services now fall, contains substantially equivalent provisions (in the Principle of Section Four and Rule 4.2)



ECHR



Moving on to your specific area of concern, in considering matters of this nature Ofcom must also exercise its duties in a way which is compatible with Article 10 of the European Convention on Human Rights which provides for the right of freedom of expression and the right to hold opinions and to receive and impart information and ideas without interference by public body. Applied to broadcasting, Article 10 protects the broadcaster’s right to transmit material as well as the audience’s rights to receive material as long as the broadcaster ensures compliance with the Rules of the Code and the requirements of statutory and common law.



How generally accepted standards are applied: Ofcom’s research



The Act further requires that Ofcom should, from time to time, commission regular research to understand public attitudes. This is particularly relevant in the area of harm and offence where expectations may vary over time and by individual or group. Ofcom therefore commissions regular independent research to guide its decision making with regard to generally accepted standards (see http://stakeholders.ofcom.org.uk/market-...esearch/). Recent examples of research include:



· Audience attitudes towards offensive language on television and radio

http://stakeholders.ofcom.org.uk/binarie...e-lang.pdf



· Attitudes towards sexual material on television

http://stakeholders.ofcom.org.uk/binarie.../sextv.pdf



In addition a range of research was commissioned and published at the time of the launch of the revised Broadcasting Code in 2005. This can also be viewed in the TV research link detailed above.



This type of qualitative independent research provides very important guidance to Ofcom about the public’s views on matters such as offensive language or sexual content. As you note, public views change over time and as language evolves new words replace others or as new channels appear expectations are altered and therefore such insight is extremely helpful for both Ofcom and broadcasters. For example, the most recent offensive language research detailed above identified that viewers widely understood these contextual factors and where they provided sufficient justification.



Turning to the research that you mention specifically, you are right to note that in respect of sexually explicit content it identified a level of public tolerance, but this tolerance came within the context of appropriate application of protective mechanisms.



Ofcom can be informed of the public’s view through research but Rule 2.3 (and, where relevant, the BCAP Code) requires Ofcom to also consider the context in which the material was presented and this will differ according to a range of factors (channel, scheduling, editorial content, audience expectation) which are unique to every broadcast. These contextual factors influence the way in which Ofcom applies generally accepted standards



On a final note, therefore, in relation to this type of material, although I note that you suggest that there has been some change in Ofcom’s regulation of this area. I would like to make absolutely clear that there has been no change in the application of generally accepted standards by Ofcom. These standards are applied on a case by case basis and our findings will depend on the context of each individual instance where the relevant standards codes may have been breached.



Complaints about Ofcom



I also note that you query why you did not receive a response to previous contact and ask how to make complaints about Ofcom. On this first point, I have been unable to find a record of any previous contact with Ofcom by you. However, if you need information about complaints about Ofcom you may find this page helpful:



http://www.ofcom.org.uk/about/policies-a...out-ofcom/



I hope this response has been helpful to you.



Kind regards

300 page on offensive language on tv and radio, thats a fucking waste of time and money. this just shows you how ofcom wastes our money and stupid things.

I contacted the Advertising Standards Authority concerning their 'Generally Accepted Standards' and requested a copy. The ASA are not a public authority so do not have to comply with the requirements of the Freedom of Information Act 2000 so a polite e-mail was sent.

Their complete response was

Thank you for your e-mail.

Further to your query, I am afraid that we don’t have a document that outlines what ‘generally accepted standards’ are.

The Advertising Codes are administered by the ASA Council. Appointed by our Chairman. ASA Council members offer a wide range of skills and experiences, representing the perspectives of a wide cross section of society, including young people, families, charities and consumer groups. They make judgments about taste and decency cases based on their experience, understanding of cultural values, public sensitivities and expert knowledge of the Code.

So rather than containing a definitive or prescriptive list of what ‘generally accepted standards’ are, the Codes allow the ASA to apply the rules on a case-by-case basis.

Kind regards


The response came from their press office.

So we have a group of people with a vast experience of cultural values, public sensitivities and an expert knowledge of the codes they decide against, possibly with legal advice/direction.

Ofc@m as part of their consultation on investigations and sanctions are proposing the whole process is dealt with by an employee throughout. with the removal of the Broadcast Review Committee and the Broadcasting Sanctions Committee.

So balanced, fair, propotionate and transparent decisions and sanctions by one officer, yeh right.

Ofcom is obliged to follow best regulatory practice under section 3 of the Communications Act 2003. The BT response covers this by reference to the Macrory Report

Macrory also advocates a transparent penalties policy, stating that Regulators should be transparent in the way that they apply and determine administrative penalties. Macrory provides a balanced approach with a range of criteria as a benchmark for a fining policy which is not focused solely on punishment. It could be argued that Ofc@m’s proposed penalties guidance with its central objective of deterrence and lack of transparency does in fact depart from the Macrory principles.

Apart from the response from Talk Talk Ofc@m don't seem to have any support from the other respondants but knowing Ofc@m as we do will ignore these and do as they wish.


http://www.bis.gov.uk/policies/better-re...businesses

most public bodies have scrutiny committee which examines the desicions made the by body.

(23-02-2011 08:54 )Jay39 Wrote:  Finally received the following response from Ofcom after complaining, regarding the further restrictions they imposed on the channels, however, you'll note that they state that no futher restrictions have been implimented post or pre watershed!!! See below:
...

Thanks Jay for pushing them on this. What they sidestep is how the new detailed guidance links to all the consultations and research they list. No mild suggestive language until after midnight. Nothing that could be mistaken for semen. These are totally new. No implied nudity until 11pm goes beyond their research that said 10-11 and goes beyond published decisions.