The term ‘future proof’ implies that the Communications Act 2003 has not kept up with changes, particularly technological changes and even that the legislation – or indeed any legislation – is somehow inflexible and ‘bad’. This argument, albeit in different forms, is often marshalled by those in favour of de-regulation or self-regulation – that only ‘industry’ (whoever that might be) can keep up. I would like to challenge this perspective, particularly the suggestion that reliance on industry bodies is the best way to protect the public interest.
What does the term, ‘future proof’ mean? Is it just more techno-babble, oft repeated but with little real meaning?
There are to my mind three drivers threatening the ‘future-proof’ nature of the Communications Act. The first concerns changes deriving from technology and the rapidly changing nature of both the technological devices available and the varying nature of services available. It would be foolish to base a regulatory system on things when those things may change. This realisation is not new; during the 1990s, ‘convergence’ and ‘technological neutrality’ were the buzz words, resulting in the horizontal approach to regulation, with one system for networks and one for content. Many of the problems about the relationship between content and infrastructure are based in the interrelationship of suppliers at various points in the supply chain. While competition law may be an appropriate starting point for these issues, a purely economic approach is unlikely to protect all content and viewer based concerns. This is one issue that the communications review, and any review of the Communications Act, will need to address. Nonetheless, the horizontal and converged approach was that adopted in the Communications Act, albeit imperfectly as we shall see.
The second challenge to a future-proof piece of legislation comes from changes in policy itself. Such changes can be linked to changes in technology, when something new becomes possible. In many cases, the newness is over-stated, often being a variant of what went before. New technologies can cause policy panic. When radio was first introduced, many were concerned about the impact of this new technology on reading and writing; concerns about ‘video nasties’ led to the Video Recordings Act. Sometimes the waves of concern recede, and we are left with a legislative over-response to the perceived problem. This reinforces the need to look to the deeper policy concerns. Of course there are limits to this analysis – as the BBC’s decision to air ‘Jerry Springer the Opera’ shows; it drew criticism from some Christian groups but the decision was upheld by Ofcom as our attitude to religion and blasphemy has changed.
This piece will focus only on some key points in the Communications Act: the creation of a super-regulator; the approach to different types of transmission (and the limitations of the broadcasting regime); the trend towards devolving regulatory responsibility to industry (or industry bodies); and the use of self-regulation and self-certification. The interaction of these aspects of the Communications Act results in some tensions:
- horizontality and a common approach to regulation v multiple regulators and distinctions between broadcasting and other transmission methods
- the needs of industry for flexibility v the needs of the audience to understand the system (access and transparency concerns) and
- economic concerns v qualitative concerns.
Horizontality v Distinction between Broadcast and Internet
Ofcom was created with responsibility for the communications sector generally, reflecting the ideal of platform neutral regulation in a converged industry sector. On the whole, it adopts functional definitions, which look to the nature of the activity rather than the mechanism by which that activity is carried out – ie it attempts a technology neutral approach. Despite this, the Communications Act does not live up to this ideal, perhaps carrying with it the legacy of previous technical limitations.
It is notable that, despite the common approach to carriage, different regimes apply to similar (or the same) content. Broadcasting is distinguished from interactive services, with different protection (if any) applying to the content supplied. Given the fine boundary between some Near Video On Demand (NVOD) and Video On Demand (VOD) systems, is this difference in protection obvious to the viewer? Media literacy presupposes the viewer is aware of the framework within which the services are provided which is often far from clear, quite apart from the issue of a level playing field for service-providers. With the implementation of the Audio Visual Media Services Directive 2007(AVMSD),[ii] the Communications Act will have to be amended to account for the obligations required to be imposed on all audiovisual media service providers – which will include those providing services over two-way, as well as one-way, systems. We will still be left with awkward distinctions – based on viewer choices (which are themselves technology dependent) – between push and pull, linear and interactive. Perhaps we need to revisit the logic of this distinction.
Unified v Multiple Regulators and Self-/Co-regulation
The next tension is that between a unified regulator and multiple regulators (ie the challenge to the horizontal ideal posed by a predisposition to self- and co-regulation). The lack of uniformity of systems is reinforced through the deregulatory impulse contained in the preference for devolved responsibility for regulation. Rather than controlling any such devolution, Ofcom has taken a more organic approach, allowing industry bodies to spring up in a haphazard fashion. There are gaps and overlaps in the systems. Content that is essentially the same may be subject to different rules depending on how that content is accessed.
Films are a case in point. They are categorised for distribution in cinemas on an age-based system; a different system applies for sale of videos and DVDs (albeit run by the same body, but with different appeal procedures in case of a challenge to classification); a film could be broadcast on television – but either be subject to scheduling restrictions, or cuts, to make it compliant with the broadcasting code, or via the Internet with no restrictions save those imposed by the general law. The press can put audiovisual content on their respective Web sites and be subject only to minimal self-regulation (see Mosley[iii]), whilst a broadcaster doing the same thing seems to have to comply with broadcasting codes in the same circumstances. There are gaps in the system, notably with the Internet, but also other technology based exclusions, such as material accessed by Bluetooth. While many of these bodies take a self-certification/age-based approach, they do not all use the same system which adds to potential confusion (eg games, which might fall within the cinematic BBFC or computer games-specific NICAM system).
Industry Flexibility v Audience Understanding
The boundaries between the different regulators may not be clear from a viewer’s perspective, as they reflect industry boundaries – is the distinction between what the Association of Television On Demand (ATVOD) and the Independent Mobile Classification Board (IMCB) regulate self-evident? This raises questions about how effective the co-regulation/self-regulation system as a whole is in protecting viewers’ interests and providing them with a remedy. Effectiveness – or rather the lack of it – is a real concern here. Whilst some bodies, such as the Advertising Standards Authority, are well-organised, visible, well-funded and generally effective, others – such as the ATVOD and to a certain extent the IMCB – have a profile low to the point of near invisibility.
It should be noted that such co and self-regulatory bodies are probably public bodies for the purposes of the Human Rights Act 1998; the protection of individuals’ human rights therefore is an issue of direct relevance – and we are talking more broadly than just freedom of expression here. Obviously, there are concerns about privacy rights, but also rights to a fair trial (Article 6) and rights to a remedy (Article 13). In passing, it is worth reminding ourselves that the European Court of Human Rights in Peck[iv] did not find that the Press Complaints Commission constituted a remedy for these purposes.
One final point on the use of co-regulation concerns the extent to which it is mandated by the AVMSD. The recent consultation suggests that co-regulation is required by the AVMSD. This is not so; the Directive permits co-regulation and the Commission communication on co-regulation itself recognises that there are limitations to the circumstances in which co-regulation is permissible where fundamental rights are at stake.[v] Also, co-regulation should be representative where important issues are at stake – many of these bodies do not take into account the voices of non-industry groups.
Economic v Qualitative Concerns
Self-regulation and co-regulation thus give rise to another issue concerning standard-setting; if industry self-regulates, it is likely to set standards which are optimal from its own perspective, rather than that of the viewer. This is the tension between economic concerns and qualitative concerns. It is reflected in the Communications Act with regard to licensing conditions. Whilst the Act envisages that broadcasters should comply with some positive obligations, these are set by the broadcasters themselves through statements of programme policy (SOPPs) The Communications Act permits broadcasters to make significant changes to their SOPP, provided Ofcom is consulted (this is weaker than the role of the Trust for BBC services which may undertake a public value test). Thus, the provisions which allow for Ofcom’s involvement in significant changes are merely legitimising the renegotiation of broadcasters’ obligations, as can be seen in Ofcom’s acceptance of a weakening of ITV’s obligations in respect of non-news regional programming and children’s programming. ITV in its SOPP for 2008 proposed to reduce its commitment to children’s programming still further, despite Ofcom’s concerns. ITV took account of Ofcom’s representations and then effectively ignored them, claiming that it had satisfied its obligations under the Communications Act merely by ‘listening’ as required by s 267(2). Ofcom is under a duty to review at regular intervals the provision of public service broadcasting, but in doing so it focuses on the public services broadcasting provided by television services as a whole. This is a more general and environmental assessment than a licensee by licensee assessment as found in the ITC reports.
One possible solution is to remove from Ofcom’s remit all content matters and confer them on a single independent body. I remain unconvinced by the reliance on self- and co-regulatory bodies. It is not only an abdication by the Government of difficult policy choices but it leads to ineffective protection of viewers – most of the bodies are simply inadequately resourced, even if the industry intention is benign. (The exceptions are the BBFC and ASA, whose funding is not a matter of choice but of participation in the industry). As the House of Lords suggested[vi], responsibility for the BBC could also be conferred on such a body. Such a body could also be responsible for all other providers of audiovisual content, with common standards to be applied irrespective of the transmission network, or the body making that content available. Certainly a separate regulatory body would lessen consumer confusion. I might make one exception here – and that concerns advertising. There is a strong argument for saying that commercial content should be subject to a single coherent regime, and the ASA is an example of co-regulation that works. The nature of that regime, whether it should be a labelling system or a content restrictive regime, remains open.
Positive Programme Requirements
A responsibility for the audiovisual environment generally, however, means that we would not be concerned just with negative content requirements but with the diet of programming available overall (and possibly the diversity of operators). It may be that a more balanced approach is less negative regulation and more positive regulation, such as requirements for children’s programming. In this I note the parallels between this suggestion and the aspiration in the AVMSD towards non-linear audiovisual media service providers complying with the European and independent programme quotas. I would also add that the obligation towards impartiality in news remains crucial, as does the right to reply. As with negative standards, any regulatory body should also have sufficient powers to ensure that all operators complied with these standards.
Lorna Woods is a Professor of Law at City University, London.
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[i] Directive 2007/65/EC of the European Parliament and of teh Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities OJ [2007] L 332/27. A consolidated version of the directive is available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1989L0552:20071219:EN:PDF
[ii] Mosley v News Group Newspapers Ltd (No 3) [2008] EWHC 1777 (QB); The Times, 30 July 2008
[iii] Peck v UK (ECHR) (2003) 36 EHRR 41; [2003] EMLR 287
[iv] European Parliament, Council and Commission, Inter-institutional Agreement on Better Law-Making [2003] OJ C321/1, paragraph 17 et seq.
[vi] House of Lords, Select Committee on the BBC’s Charter Review, The Review of the BBC’s Royal Charter, 1 November 2005, HL Paper 50-I
