Next Wednesday the Westminster Media Forum will be holding a seminar to discuss various issues concerning the proposed broadcasting code. Three Panel discussion groups will be held to discuss key issues:
Protecting vulnerable groups - Ofcom or Off-switch?
Is the UK ready for news with a viewpoint?
New forms of advertising - are the proposed rules still too conservative?

Ofcom and the Westminster Media Forum must be congratulated for organising this seminar which, with luck, will generate considerable lively debate and hopefully some answers to a number of questions that have arisen since the broadcasting standards consultation was published.

Most of my questions centre around the broadcasting prohibition on R18 content and having read the consultation document in detail the questions are piling up rather alarmingly. The issue at stake is the balance between the need to protect children from unsuitable content and the need to respect adult�s right to free expression.

The recommended course of action is to continue the existing R18 broadcasting prohibition. One of the assumptions being that R18 content is so seriously offensive to society that its transmission would be a breach of generally accepted standards.

Yet R18 already is the generally accepted standard for the video and DVD�s sold from hundreds of licensed sex shops throughout the country. And the public agree by a very large margin that people who wish to see particularly explicit sexual content on subscription television should be allowed to do so.

It is pointed out to us in the regulatory impact assessment that although 76% of the population agreed that people should be allowed to pay extra to view particularly sexually explicit programmes on subscription services, that no distinction was made between 18 and R18 content in the survey. Other communication with Ofcom has revealed that Ofcom also believe that the public did not fully understand the question (notwithstanding the dictionary definition of the word �explicit�).

This leads to a question. If the survey question was badly worded and the public didn�t fully understand it, why was the same question asked again in Ofcom�s latest research �the Communications Market 2004�? - with the same result incidentally. Of more concern is what would Ofcom�s reaction have been if the public had responded with say only 20% approval? Would it have still maintained that the public didn�t understand the question? Or would it have held the reponse up as evidence in favour of the ban?

The other reason given for the recommended ban is to protect children from harm

Yet elsewhere it has been accepted that harmful content may be shown late at night when some children may still be watching, on free to air services. R18 content by contrast could be restricted to services that children would be highly unlikely to be able to watch.

In addition the protective measures that are so clearly important to this issue have only been mentioned in passing in the Regulatory Impact Assessment. Such measures should have formed the central discussion point for the R18 debate and the regulatory impact assessment should have provided a lot more information about them.

Modern digital broadcast technology allows services to have mandatory PIN protection that would make R18 broadcast content more secure than R18 video (recorded broadcasts being as secure as R18 video). Encryption and more traditional measures to ensure subscribers are adults could provide very substantial protection.

No doubt it will still be argued that children could still gain access to content by stealing their parent�s credit cards and PIN number and subscribing and watching when their parents were out or in bed, but is this a likely scenario? Or is it an excuse for avoiding uncomfortable decisions?

Apart from the conclusion there is much else in the Regulatory impact assessment to take issue with:

We are told that the Government believe that controls on the distribution of R18 content should be as strict as possible, yet on further investigation we find that the DCMS have still not decided whether to proscribe the Italian R18 service Satisfaction TV following the ITC�s request to do so 4 years ago. Surely this should have been mentioned? Such a delay cannot possibly be reconciled with any �pressing social need� and lends an unwelcome element of farce to this important issue.

We are also told that Ofcom is an evidence based regulator, yet no evidence has been presented to show that R18 content is seriously harmful. Ofcom appear to have relied on appeals to common sense to prove their point that a total prohibition is necessary.

Meanwhile anyone who owns a computer can download R18 content from the Internet and every adult is free to purchase R18 content from hundreds (yes hundreds) of High street sex shops throughout the country and take them home. Spanish viewers can even watch R18 content on free to air services.

Adult Subscribers to �adult� services expect to see �adult� content on such services and quite reasonably expect Ofcom to apply consistent, proportionate and joined up regulation basing its decisions on evidence where harm is concerned and on viewer expectations where offence is concerned, and not on the opinions of those who have no intention of watching the services they complain about.

The suggested blanket prohibition on R18 content under all circumstances would be both disproportionate to the likely harm that might be caused and inconsistent with greater levels of risk accepted with the post watershed broadcasting of dangerous and easily imitable behaviour when children are watching. Nor would it be �joined up� with the regulation of the BBFC.

If the R18 standard is not to be permitted, it is also hard to see what generally accepted standard would be appropriate. BBFC �18� is not a realistic option, unless Ofcom is prepared to abandon any idea of light touch regulation in favour of censorship of an even more severe form than the ITC were prepared to impose. The current more-than-18-but-less-than-R18 is also not a realistic possibility as it is impossibly vague and it is unlikely that it is generally accepted by anyone other than Ofcom.

It simply needs to be accepted that the diversity of taste in society today is now so great that it cannot all be contained within one channels remit. One size simply does not fit all, and if Ofcom are looking for some further justification for this approach I suggest the following:

Although section 319(2)(f) of the Communications Act requires Ofcom to apply “generally accepted standards” to the contents of television services, it might well be argued what does �generally accepted� mean on a service that 99% of the population will never watch? Perhaps section 3(4)(k) of this Act gives a pointer here in that it requires Ofcom to have regard (where relevant), in performing their duties to “the opinions of consumers in relevant markets and of members of the public generally” (my emphasis). This can be interpreted to favour the opinions of consumers in relevant markets (such as specialist subscription services) whilst favouring public opinion on more generally available services. Such an interpretation would also be more compatible with the requirements of the Human Rights Act, which includes no exceptions permitting restriction of free expression based on public opinion.

No doubt that next Wednesday�s seminar will prove to be an interesting event and is certainly one that I look forward to attending and speaking at. I hope to be able to report back on developments afterwards.