Ofcom reviews Broadcasting Code

Topic: Regulatory

Who: Ofcom

When: 15 June 2009

Where: United Kingdom

Law stated as at: 26 June 2009

What happened:

The Communications Act 2003 requires Ofcom to review and revise the Broadcasting Code (the "Code") from time to time. The current version of the code has been in force for four years and sets out the rules for acceptable broadcasting, with a focus on matters such as the protection of children, harm and offence and commercial references in TV and radio programmes. True to its obligations, Ofcom has taken a fresh look at the content of the Code and has decided it is time to consult with interested parties as to whether or not certain Code rules should be revised. On 15th June, Ofcom launched a consultation which focuses on the Code and Ofcom's aim to provide greater clarification and guidance so broadcasters have more guidance at their disposal to avoid compliance failures. So what are some of the changes Ofcom is seeking the views of stakeholders on?

1. Radio

Ofcom has indicated that it wants to "liberalise" some of the rules on commercial references in radio programming but that consumer protection and editorial independence are still of key importance. Ofcom has considered the issue of commercial references as a result of recent audience research demonstrating listeners would actually welcome relevant promotions so long as editorial independence and transparency were maintained. Ofcom is therefore consulting on whether or not to permit the use of the following categories of promotions on radio:

• Content-related promotions – radio stations could be permitted to broadcast brief promotions for products or services directly associated with the programme content (e.g. the offer of a music download of a song just after it has been played);
• Venue-sponsored outside broadcasts – stations could be allowed to broadcast outside broadcasts that have been sponsored by the venue or venue owner; and
• Sponsored listener competition features – listener competitions which include specific references to a sponsor.

2. Competitions, voting and sexual material

The current version of the Code includes rules aimed at ensuring that consumers and audiences are protected and not misled where competitions and voting mechanisms are concerned. TV competitions have caught the attention of the press over the last year due to the large fines imposed by Ofcom on broadcasters where they have failed to comply with the rules set out in the Code. Ofcom does not propose to make vast changes to current regulatory practice where competitions, voting and the use of sexual material is concerned, but it will seek to clarify these rules due to the number of compliance failures that have arisen recently.

It is proposed that the new version of the Code will incorporate some clarification and Ofcom guidance on compliance where the use of sexual material and competitions are concerned as highlighted below:

(a) The use of sexual material

Ofcom proposes that:

• the existing rules and guidance relating to material that is equivalent to BBFC (British Board of Film Classification) R18-rated works and "adult-sex" material be reworded and updated to provide further clarification;
• the term "encryption" previously used to refer to the measures which must be put in place by a broadcaster in relation to the broadcast of "adult-sex" material be replaced with the term "mandatory access restriction"; and
• a new rule on the use of "strong sex material" be introduced in relation to material that is broadcast after 9.00pm on what are considered general entertainment channels with widespread appeal so that images and/or language of a strong sexual nature must be strongly justified by context.

(b) The conduct of audience competitions

Ofcom recommends the existing rules be modified to ensure that:

• broadcast competitions and voting are fairly promoted and conducted and broadcasters must not materially mislead viewers or listeners;
• broadcast competition rules must be clear and appropriately made known; and
• broadcast competition prizes must be described accurately.

3. Public information programming

Not-for-profit organisations are currently prohibited from funding programmes with content about their own activities or interests. As part of this consultation exercise Ofcom is questioning whether this prohibition should remain in force. It puts forward for consideration some possible new rules that could replace the current outright prohibition and permit non -commercial, not-for-profit entities (such as public services) to fund Public Information Programming such as:

• requiring that the programmes concerned are in the public interest;
• prohibiting funders banned from TV or radio advertising from funding such programmes (e.g. political parties);
• requiring that the programmes do not cover controversial matters; and
• ensuring that such funding arrangements are made transparent to the audience.

These amendments have been considered and proposed following requests for advice from both broadcasters and from non-commercial, not-for-profit organisations. Ofcom also notes that there would need to be sufficient safeguards in place to prevent potential misuse such as in relation to surreptitious advertising, editorial independence and due impartiality.

4. Product and prop placements

Section 9 of the current Code contains rules that apply to sponsorship on radio and television. Section 10 contains rules that apply to commercial references and other matters on both television and radio. Ofcom is proposing to replace these sections with two new sets of rules that would separate, and be tailored specifically for, radio and television such as section 9 of the revised Code would contain the rules applying to all commercial references in television programming and section 10 would contain the rules applicable to radio programming.

The rules in relation to product and prop placement will be determined by the Government and Ofcom will have a duty to ensure broadcasters comply with such new statutory requirements. Ofcom will not create its own rules on such matters seeing as they will be governed by legislation so Ofcom simply proposes to replicate the wording adopted in such new legislative provisions within the revised Code.

Why this matters:

This consultation exercise closes on 4th September 2009 and Ofcom intends to publish the revised Code in December 2009. Ofcom's proposed changes to the Code are partly prompted by the Audio Visual Media Services Directive which has to be implemented in the UK by the end of the year but it is also a good excuse to clarify some of the rules that have been breached in high profile cases involving inappropriate conduct and TV competitions over the last year. Ofcom hopes that providing broadcasters with greater guidance and clarity will avoid any more of these high profile compliance breaches.

Finally, it is also likely that there could be further amendments to the Code in store where sexual material, offensive language and the use of the watershed are concerned. Ofcom has recently published the results of research it commissioned into audiences views on sexual content on TV and it intends to conduct further research into public attitudes towards language. Such research assists Ofcom to review the Code and take into account what the public considers to be acceptable where broadcast media is concerned. The findings of such research could pursuade Ofcom to amend the Code further where such topics are concerned but, for the moment, Ofcom is not proposing any additional revisions to the existing Code other than those addressed as part of this consultation process.