In the second interview in OfcomWatch’s Interview Series, Paul Tavener spoke to Tim Suter and Matt Peacock over a variety of broadcasting standards issues. Further interviews on a selection of other topics will be posted in the coming months on the Ofcomwatch Interviews page.

This interview was carried out on behalf of both Ofcomwatch and Ofwatch on the 7th April 2005 at Ofcom�s headquarters at Riverside house. Tim Suter is Ofcom�s Partner for Content and Standards, and Matt Peacock is Ofcom’s Director of Communications. The main topics covered included a general discussion of the new broadcast code, adult service issues, how Ofcom deals with some of it�s processes and the future of broadcast regulation in the Internet age.

The full transcript of the interview runs to 23 pages but here are some of the more notable points and a little of my interpretation of what was said:

When will the new broadcasting code be published?
It now looks like the broadcasting code will not be published until �this side of the summer�. When pressed all that Tim would say was �before people go away for their holidays�.

Like many children my son breaks up for school on the 22nd July so this side of the summer probably means before then, although Tim also said that �We won�t be driven by a time table we�ll be driven by getting the right decision.� So who knows?

There will also be a gap between the time that the code is published and when it comes into force to allow broadcasters to understand it and make any necessary adjustments. This time delay has not been finalised but might be two months.

Harm and offence, taste and decency and generally accepted standards
One of the most challenging areas that Ofcom had to resolve was the difference in philosophy between the old ITC �taste and decency� and the new Ofcom generally accepted standard of �harm and offence�. In the end Ofcom have decided that the difference boils down to the fact that �taste and decency� is inherently subjective whereas �harm and offence� is potentially objective.

It was also made clear that different generally accepted standards might well be applied to different types of service and that Ofcom have greater flexibility with the new code as far as considerations of context are concerned, but that everything ultimately had to relate back to the letter of the law.

How do Ofcom manage Adult services?
Both Matt and Tim were very reluctant to discuss any detailed aspects of the new code before publication. Matt said that �We�ve actually found it�s unhelpful for us to give a running commentary on discussions within the organisation once the consultation phase has closed, it doesn�t actually add anything and that is why we don�t do it.�

To be fair to them this was pointed out to me before hand so it wasn�t a surprise, although this didn�t stop me from squeezing in a few questions and pushing the boundaries in various areas. Both Tim and Matt were at pains to point out that they would be more than happy to answer my detailed questions and provide justification for Ofcom�s code decisions after publication, so I will be back to interview them again the other side of the summer.

The controversy surrounding some broadcast code issues became clear when I found that the reluctance to discuss code issues extended to discussions involving the existing regulations in some areas, presumably for fear of sending the wrong signal or letting something slip.

When asked about some of the highly explicit films that have been broadcast free to air recently the most that could be gleaned was that:

�This is a judgement that people take, and this is why we are a post transmission regulator.� And �we�re largely complaint driven but not entirely.�

When asked would a film like Nine Songs be suitable for broadcast? The response was predictably that �We would always avoid the question until we have to deal with a complaint�, although Tim did add �I note that it�s a film that�s got an 18 certificate, but that�s a very interesting decision.�

Although neither Tim or Matt would were willing to be drawn into any sort of debate over the current regulation of adult services it is abundantly clear to anyone who is familiar with the BBFC standards and who has seen much of the current output from adult services, that Ofcom are, in the absence of any complaints, turning a blind eye to some content that would clearly not meet the existing BBFC 18 classification and would therefore by definition be of R18 standard.

Proscription orders
Again Tim would not be drawn but he did say �Of course Xtasi hasn�t been proscribed, we have put the paperwork into the secretary of state, but it hasn�t yet been proscribed.� This was later confirmed by Matt. I was surprised by this as that Statutory Instrument suggests that the proscription order came into force on the 21st February 2005. Further investigation will be carried out with the DCMS who should be able to give a definitive answer (at least in theory!).

Is Ofcom effectively the broadcast censor?
Tim was adamant that Ofcom is not a censor claiming that censorship by definition must occur pre transmission. My view was that restriction of content by an official body such as Ofcom amounted to censorship. It would seem that it depends which dictionary you look in as to whether censorship includes prior restraint.

Putting aside the issue of individual judgements over whether a certain line has been crossed or not, It would seem beyond dispute to me that if the existing Ofcom code *forbids* R18 content on any channel at any time, that this amounts to the prior restraint (i.e. censorship) of all R18 content. With one sentence the current Ofcom code imposes prior restraint on an entire BBFC classification. And to put that in perspective more R18 titles were certified by the BBFC in 2004 than 18 titles were by a large margin. If that�s not censorship then I don�t know what is.

Should standards and guidance be based more on audience research?
Although accepting that audience research was very important it was not accepted that it was definitive �We have to use our own discretion in interpreting the material that is put before us� said Tim.

Should this research not only inform, but in some cases define what is generally accepted?

It�s a good question, but you can�t use audience research to define generally accepted standards, we can�t do that, in the end the buck stops with us. It may be definitive in some ways but it frequently won�t help you in hard cases.

Well that�s an interesting answer and one that perhaps might be worth revisiting later. Whilst I can see that there must be some scope for discretion and Ofcom do accept that survey results may be definitive in some ways, I think that large scale public surveys should be given far greater weight simply because of the fact the standard is supposed to be �general accepted� and large scale surveys are as close as you can get to defining that.

Does the emergence of Internet complaint campaigns cause problems?
On the issue of complaints, especially orchestrated complaint campaigns such as those mounted by Christian voice and similar, it would seem that these do make Ofcom�s job more complicated and do create concerns for Ofcom, however these concerns are more to do with processing all of the complaints rather than any policy issues. The number of complaints has a bearing but is certainly not the determining factor in policy making.

The future of broadcast regulation
Definitely more scope to comment here!

Last October Ofcom�s chairman Lord Currie gave a speech in which he said:

�The rapid growth of first multi-channel, then digital, then PVRs and soon higher-speed broadband are simply the pre-tremors of the real volcanic eruption that technology is about to unleash. At the risk of being over-dramatic I would say that most traditional television broadcasters are today standing about the equivalent of one mile from Mount St Helen. When it blows, frankly, that is too close and then it will be too late to run.�

There would appear to be no doubt that new means of delivery will change the very nature of regulation very significantly. The only questions remaining being when and how regulation will change.

When faced with the prospect of major changes such as the introduction of television via the Internet, Tim was keen to go back to first principles to look at why we need to regulate in the first place.

In the past the need for regulation has been driven by two key factors, firstly that broadcasting has the ability to exert a very powerful influence, whilst at the same time people�s ability to protect themselves from harm and offence has been very limited. As broadcasting becomes increasingly decentralised and as a greater range of mechanisms become available to provide informed choice so the need for regulation will decrease. Although it is unlikely to disappear entirely, the face of regulation will change dramatically.

So as the old world of traditional broadcasting starts to collide with the new world of Internet distribution, what does this mean for broadcast regulation?

Ofcom�s view is that we can�t simply stretch the traditional broadcasting regulatory framework to cover the new means of Internet distribution. A new model is required and there needs to be serious public debate over where regulation is going in the future. Ofcom does not want to regulate content on the Internet, but is aware that the existing distinction between television and the Internet is slowly disappearing and that maintaining different sets of rules for the two forms of distribution would eventually become untenable so some form of rationalisation must eventually be introduced.

Whatever happens ultimately the decision will rest with Parliament, although even Parliament is restricted by what is possible. There would be little point in providing an elaborate new regulatory structure for people to use if nobody wanted to use it and an unregulated alternative was available at the click of a mouse. There might well be a place for both a regulated environment and an unregulated environment allowing people the choice of which environment they wished to use.

So how long have we got before Lord Curries volcanism engulfs broadcasting? The short answer is nobody really knows, but Matt was prepared to stick his neck out with a guesstimate �three to five years before we start to see real traction� he said. It would seem that the key is Internet speed and here the improvements have been truly massive. Last year, the entry level broadband speed provided by BT quadrupled. It was 512k but it�s now two meg. Once you get above eight megs the quality is effectively indistinguishable from anything you’d see over a broadcast transmission.

In France companies such as Iliad already provide television over IP on an eight meg connection for twenty Euros a month. The vanguard has already arrived in the UK with Home Choice and at the current rate of increase in speed it won�t take long before broadcast quality television will be available to millions of people via the Internet. In my opinion even Matt may be overly cautious with his estimate. It could be closer than we think.

So, has Ofcom really taken all of this on board? Will the new broadcasting code be the first step towards a new more liberal deregulated future? Or will Ofcom, despite all that has been said above, succumb to that almost irresistible attraction for a regulator � to regulate?

I think that Ofcom realise that the emerging Internet environment does not look kindly on regulation. There may well be a transitionary phase but their role will inevitably diminish, the regulatory function will be increasingly borne by citizen consumers and most citizen consumers will be very happy to take on such responsibility. The alternative is for Ofcom to fight the good fight until overwhelmed by the forces of the Internet, but I don�t think that is what they want at all, I think Ofcom will adapt to the emerging regulatory environment very well, in Tim�s words, Ofcom is an organisation that is impatient for the future.