Statement on the Ofcom Broadcasting Code - Summary

Summary
The Consultation
The draft Ofcom Broadcasting Code (“draft code”) was published for consultation
on14 July 2004. The consultation formally closed on 5 October 2004 although some
further submissions were received after that date. Overall, we received over 950
responses and we also received a campaign from mediamarch of over 1500 postcards

The quality and quantity of the responses demonstrates the importance that standards in
broadcasting have to citizen-consumers and to those who work in the industry and other
stakeholders. Of the non postcard responses 35 were from broadcasters, 96 were from
other stakeholders and 819 from members of the public. A full list of non confidential
respondents is included in this statement and is available on the web site1.

Publication of the Broadcasting Code

Because of the very high number of responses received and the very significant level of
interest in Ofcom’s new Broadcasting Code (“the Broadcasting Code”), publication was
delayed until 25 May 2005. The final Broadcasting Code reflects the many suggestions
and considered views expressed by respondents.

Ofcom’s philosophy in setting the Code

In drafting this Broadcasting Code we have sought to target regulation where it is
required, to be proportionate and consistent and to create regulation which is
achievable. We have had regard to our duties to promote choice and competition, to
further the interests of citizens-consumers and to support innovation, creativity and
investment.

As listeners and viewers exercise choice in a digital and multi-channel environment, it is

important to allow broadcasters as much freedom of expression as is consistent with the
law as well as the flexibility to differentiate between services and enable their audiences
to make informed choices.

The Communications Act 2003 (“the Act”) clearly envisages both audiences and
broadcasters taking more responsibility for what is broadcast on the one hand and what
is received on the other. The regulation that Ofcom provides in this Broadcasting Code
should include the minimum standards required by law. We have only set more
restrictive rules for specific descriptions of services where we believe this can be
justified.

In particular:

• We wanted to draft a code that would not simply rewrite previous codes but would be
a genuinely new code, rooted in the new broadcasting legislation – in particular the

1
We have also published on the website on an anonymous basis approximately 250 responses
which failed to state whether or not they should be confidential, despite being requested to make
this clear.

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Statement on the Ofcom Broadcasting Code - Summary

Act and the Broadcasting Act 1996 as amended (“the 1996 Act”) whilst also
incorporating, where relevant, the provisions of the EU Television Without Frontiers
Directive (“TWF Directive”), and in the light of the Human Rights Act 1998, in
particular the right to Freedom of Expression.

• Driven by section 319 (4) of the Act, we wanted to create a code that recognised the
rapidly changing broadcasting environment and increased levels of media literacy.
This enables us to ensure that children can be protected and adults are given the
information to make informed choices.

• Research indicates that the public believe that the primary purpose of standards
regulation in broadcasting is to protect the young and we have reflected that by
creating a separate section for the protection of the under-eighteens and by taking,
where appropriate, a precautionary approach to the protection of children (defined in
the Broadcasting Code as those under fifteen). This is also in line with the first
standards objective in the Act that those under eighteen should be protected (section
319 (2)(a)).

• As a corollary to the necessary protection of children, Parliament has required that

generally accepted standards should be applied to television and radio services so
that adequate protection is provided to prevent the inclusion of harmful or offensive
material. This is more qualified than in previous legislation which required that
nothing should be included that would offend against good taste and decency. This
means that rules in Section Two of the Broadcasting Code regarding Harm and
Offence accept that where broadcasters can editorially justify content and provide
appropriate information, they should be able to include more challenging material
even though that material may be considered offensive by some. This freedom is
however limited at times when children may be particularly expected to be listening
or viewing (in television terms pre-watershed).

• We wished to clarify and simplify the amount of standards regulation in broadcasting

so that the Broadcasting Code could easily read and understood by those who work
in the industry as well as members of the public. We have reduced the six codes of
the legacy regulators (Radio Authority, Broadcasting Standards Commission and
Independent Television Commission) to a single code with appendixes.

• Finally we wanted to create a code that acknowledged the reality of convergence

and so united radio and television regulation wherever possible without imposing a
heavier regulatory burden on either medium. In general respondents agreed with the
single code approach with break out rules where necessary for different services.

The statement
This statement summarises the responses to Ofcom’s consultation on its draft code and
Ofcom’s response to the points raised. It explains our reasons for changes we have
made to the draft code resulting in Ofcom’s Broadcasting Code2.

2
This document is not a legal document nor is it part of the Broadcasting Code nor is it an
exhaustive account of all the rationale there may be for each and every rule.

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Statement on the Ofcom Broadcasting Code - Summary

Respondents have in some cases commented on every proposed rule and many have
suggested changes to the wording, reflecting the very different perspectives involved.

This statement contains a summary of respondents’ views prepared for Ofcom by an

independent company which seeks to capture the majority of the comments made. It
also contains Ofcom’s response to those comments.

This document could not cover each and every point that has been raised by
respondents to the consultation; instead it summarises the most significant issues and
Ofcom’s response to them.

However, it should be made clear that, in considering the final wording of the
Broadcasting Code, Ofcom has considered each and every response received in its full
form (whether confidential or not).

Besides the mediamarch postcard campaign (and a linked campaign to encourage MPs
to write to Ofcom), we are aware that there have been three other campaigns running.
One is by those in favour of the broadcasting of R18 material (commonly known as hard
core pornography) and the other by those opposed to it. There has also been a
campaign by those in the adult sex shop industry, who are opposed to the broadcast of
R18s, to encourage MPs to write to Ofcom.

Linked publications
Guidance to the Broadcasting Code is being published on Ofcom’s website to
accompany the Broadcasting Code. Members of the public without access to the web
may request a copy of the guidance by post. This guidance is advisory rather than
binding and will be reviewed and updated as necessary.

As an evidence based regulator, Ofcom has also commissioned research to inform the
drafting of and the guidance to this Broadcasting Code. Ofcom plans to publish this
research on its website at the same time as the Broadcasting Code.

The research includes:

• A safe viewing environment for children – key findings from the qualitative research
• A safe viewing environment for children – key findings from the quantitative research
• Consultation Among Young People on the Proposed Ofcom Broadcasting Code: A
Research Consultation with U18s
• R18 material and its potential impact on people under eighteen: an overview of the
available literature
• Religious Programmes: a report on the key findings of a qualitative research study
• Research into the effectiveness of PIN protection systems in the UK
• Smoking, alcohol and drugs on television- A content analysis
• Offensive Language and Imagery in Broadcasting: A contextual Investigation

Some of these projects were quantitative in their nature (larger sample sizes, more
structured questioning, statistically reliable findings); some were qualitative (smaller
numbers of respondents, more open discussions, results to be used directionally or as
guidance) and some were a mixture of the two.

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Statement on the Ofcom Broadcasting Code - Summary

Issues which will be subject to further consultation

In preparing the Broadcasting Code three issues have emerged which we consider
should be the subject of further and separate consultation.

Product Placement
Against the backdrop of an apparent threat to the traditional spot advertising funding
model of commercial broadcasting, Ofcom is keen to examine and explore new potential
funding sources. These include product placement possibilities in the light of what the
TWF Directive may allow, both now and when it is reviewed. The EU has stated that it
will reach a provisional position on product placement as part of the re-drafting of the
TWF Directive by the end of year. However, there are mixed views over whether the
prohibition should remain and relaxing the rule on product placement immediately could
have implications for the overall ecology of television funding. Ofcom has therefore
decided that the Broadcasting Code should retain the prohibition on product placement,
but that the issue should be specifically consulted upon in the context of a separate
consultation later this year which will examine programme funding options.

Appealing for Funds

The second issue is whether television services, like radio services, may appeal for
funds on air to support programmes and services. Whilst we are aware that this would
be supported by specialist religious services and those interested in providing
community services there was a strong request from other respondents that this matter
should be the subject of a further consultation. Because of the importance of this issue
and its potential to change the economic ecology of broadcasting we will look at this in
our consultation on the future funding of programmes and also within the consultation on
“local” (community) television both of which are anticipated later this year.

Channel Sponsorship
Sponsorship of a whole television channel or radio station is currently not permitted. It
has been considered unacceptable because of the way in which the regulator interpreted
the TWF Directive and the ITC Code of Programme Sponsorship. Overall, the concern
was over a sponsor’s possible influence on the editorial content of a whole service and
the possibility that many services may carry unsponsorable content e.g. news.
However, under current rules commercial companies can become licensees and name
the broadcast service after the brand. From the audience perspective, channel
sponsorship may not be any different.

Ofcom has re-examined the TWF Directive and notes that it does not appear to explicitly
prohibit or approve of channel sponsorship. The Commission’s Interpretative
Communication indicates that if in doubt about the TWF then it will tend towards a more
liberal approach.

The general thrust of the responses suggests that channel sponsorship would be
welcomed. Subject to further internal consideration, Ofcom therefore intends to permit
channel sponsorship. However, it may be necessary to develop some further rules
around this specific area to ensure compatibility with the TWF Directive.

Ofcom aims to start a consultation as soon as possible on what rules, if any, are
necessary. Until Ofcom has concluded this consultation and taken all necessary

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consequent decisions, its present interpretation of the Directive and sponsorship rules
remain unchanged i.e. sponsorship of whole channels is prohibited.

Changes to Code
We have made many changes in response to the consultation which aid clarity or which
appear to be closer in line to the requirements of the Act and other relevant legislation.

We have also identified other substantive issues which have resulted in more
fundamental change. We have signalled some of the key changes below under
individual section headings in the order in which the issue is dealt with in the
Broadcasting Code, or if it is no longer in the Broadcasting Code, in the order in which it
was dealt with in the consultation document.

Principles
We received many suggestions as to what the principles should contain. We decided
that it was most logical to return where possible to the wording of the legislation.

Some respondents queried why it was necessary to incorporate within the rules the
wording of the principles. This is because it is important that the rules fully reflect the
objectives which Ofcom is seeking to secure.

Section One: Protecting the Under-Eighteens

This section attracted a large and very varied response.

• Scheduling
Scheduling issues raised most comment in this section. The rules relating to scheduling
have therefore been clarified to assist interpretation. We have dealt at length with the
reasoning here in the under-eighteens section of this document.

In making these changes we have also been aware of the very large number of
responses from members of the public and from viewer and listener groups, which have
urged clarity and respect for the watershed and times when children are particularly
likely to be listening in the case of radio and voiced concern that these scheduling
restrictions are ignored. We believe these changes will help meet these concerns as well
as the more technical concerns of the broadcasters.

We have not, however, chosen to adopt suggestions that, in particular, the watershed be
moved to later or earlier in the evening. We consider that the present system is well
understood. It provides protection for children before 2100 whilst accepting that, after
this time, parents/responsible adults must take more responsibility for television viewing
in the household. We have maintained the watershed and other restriction in the case of
radio, but Ofcom recognises that as technology and market changes increase (such as
the use of time-shifting devices e.g. PVRs) there will be a long-term impact upon the
watershed’s effectiveness as a tool to protect children.

• Substance abuse
We accept that society is concerned about the attractions of abusing both legal and
illegal substances and have therefore extended the draft rule to programmes likely to

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attract a wide under-eighteen audience. However, this is not an extra regulatory burden
since this is in line with what was required by the legacy codes. Ofcom commissioned
content analysis in this area. It indicates that under the current rules broadcasters act
responsibly.

• The scheduling of paranormal programmes on television

Under current television regulation certain paranormal programmes (which are for
entertainment purposes) are prohibited from broadcast on terrestrial channels pre-
watershed. The regulatory impact assessment (“RIA”) to this consultation asked whether
these channels should be regulated in the same way as satellite channels. The
responses show a split between the broadcasters and, in general, those representing
religious groups. The broadcasters largely believed that a level playing field should
prevail whilst religious groups believed a precautionary approach was the way forward.
Given our duty to protect the under-eighteens, we believe it is proportionate and correct
to adopt option two from the RIA which allows certain paranormal programming, which is
for entertainment, to be transmitted on all television services. However, the
Broadcasting Code retains the limitation that this material should only be shown when
significant numbers of children are not available to view e.g. school time.

• Premium subscription film services

Current rules prohibit premium subscription film channels from transmitting British Board
of Film Classification (“BBFC”) 12-rated (or higher) films before 2000. In effect this
means that those who subscribe to such channels can only watch PG-and U-rated films
during the day. We consider that those viewers that subscribe to premium subscription
film services have accepted a greater share of responsibility for what is broadcast into
the home. We have therefore decided that if such channels can provide sufficient
protection (e.g. a mandatory PIN), they should be allowed to broadcast higher BBFC-
rated films (i.e. up to 15-rated films or their equivalent) than previously permitted.

We believe this will be a real benefit to viewers, while ensuring that children can still be
protected.

• Adult sex material

Rules regarding services that transmit adult sex-material remain as before.

• R18
It was decided not to allow the broadcast of R18 or equivalent material.

Responses to this issue were polarised. We assessed the arguments carefully, with
particular reference to our statutory duties, the need to balance competing interests
between the protection of children and freedom of expression and the available
evidence. This includes the recent research we have commissioned into the
effectiveness of prevailing security mechanisms in the UK.

Ofcom considers there is a significant risk, that a least a proportion of children would be
able to access R18 material if it were to be broadcast under current security
mechanisms. Given the strength of the material and in the absence of evidence that
children could be effectively protected, Ofcom considers a prohibition of this material, for

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the time being, consistent with its objective to set standards to protect the under-
eighteens.

We have dealt with these arguments and our reasoning is set out in more detail later in
the full statement that follows.

We believe that we would be failing in our duty under the Communications Act 2003 if
we were to remove the current prohibition on the broadcast of R18 material at this time.
We consider that retaining the prohibition is necessary, appropriate, proportionate and
targeted to an area where it is necessary, in all the circumstances.

We are willing to review this issue again in the light of relevant developments.

Section Two: Harm and Offence

• Respect for the Truth
The proposed rule regarding respect for the truth has been the subject of concern for
some broadcasters but in particular the BBC. The BBC felt that Ofcom was proposing to
regulate in an area that was the prerogative of the BBC. Ofcom has no intention of
regulating the BBC on matters where Ofcom has no jurisdiction to do so.

Ofcom has accepted that the regulation of “respect for the truth” within Section Two:
Harm and Offence of the Broadcasting Code as set out in the draft rule would be better
expressed in terms of ensuring that audiences are not misled. Therefore the rule has
been changed to require that:

“Factual programmes or items or portrayals of factual matters must not

materially mislead the audience.”

This rule is necessary to prevent potential or actual harm and/or offence and as such
applies to all broadcasters.

It has also been explained that News is regulated under Section Five: Due Impartiality,
Due Accuracy, and Undue Prominence of Views and Opinions of the Broadcasting
Code, (and in the case of the BBC by the Governors on this issue).

• Offence
Following representations by the Commission for Racial Equality (“CRE”) Ligali and
others we have, in Rule 2.3 regarding offence, incorporated, as examples, the six areas
of equality (age, disability, gender, race, religion and sexual orientation) which are or will
be subject to legislation.

Section Three: Crime

• Payments to criminals and their associates
The draft code proposed that payments made to criminals in relation to their crime(s)
must be in the public interest and declared on air.

However, following further consideration we have removed the requirement for a

declaration, but maintained “the public interest test”. We consider an on air declaration

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not sufficiently linked to the standards objective “that material likely to encourage or to
incite the commission of crime or to lead to disorder is not included in television and
radio services”. However we would encourage such declarations for the sake of
transparency and this is made clear in the guidance to this section.

Section Four: Religion

• Belief
The draft code described a “religious programme” as a “programme which deals with
matters of religion or belief, as the central subject, or as a significant part, of the
programme”.

Respondents took differing views as to whether it was appropriate to include beliefs

which were not religious beliefs. Having considered this matter carefully we believe that
a correct reading of the Act is that religious programmes should be interpreted as
programmes involving religious views and religious beliefs only. This section therefore
does not apply to beliefs which are not religious. Of course, those beliefs which are not
religious will be subject to the other provisions within the Broadcasting Code. We have
therefore amended the meaning accordingly.

• Recruitment and fund raising

Following audience research we have decided to maintain the status quo regarding
recruitment – that is radio and specialist religious television services may recruit but
programmes on services which are not specialist may not recruit.

Separately, we have decided to consult further on the issue of allowing television

services to appeal directly to viewers for funds to support programmes or services
(including those that are religious). Until that is concluded the status quo prevails
including for those services which are religious services. See above under issues which
will be subject to further consultation.

Section Five: Due impartiality

• Due impartiality
The most significant issue raised by respondents to this section was the meaning of “due
impartiality”. The draft code referred to fairness, accuracy, objectivity, dispassion and
even-handedness as requirements for impartiality. Many of the respondents point out
that these requirements are not essential to achieving “due impartiality” and in particular
some of these terms have specific legal meanings. We accept that while these
attributes may contribute to “due impartiality” none of them necessarily equates with it or
is a necessary condition for it. A re-drafted meaning for “due impartiality” has therefore
been included in the Broadcasting Code which we believe is clearer and simple to
understand.

• Labelling of foreign news

The Consultation asked whether foreign retransmitted news services should be labelled
to assist the audience.

Ofcom has no doubt that, in principle, viewers and listeners should have easy access to
clear information about the nature, origin and content of all services. It is particularly

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important in the light of an ever-expanding number of channels and the growing

availability of trans-frontier broadcasting. However, this is important in all services and
Ofcom questioned why news should be any different in this respect to other services.

The development of labelling – either on screen or via EPGs – should be part of a more
positive form of regulation involving all channels. If possible it should not be used on a
piecemeal basis. The concept of labelling should ideally be developed through
consultation, and be universal.

Section Six: Election and referendum broadcasting

• Listing all candidates in a constituency in elections
We received representation from radio broadcasters that the requirement in the draft
code that all candidates be listed following a constituency report was more onerous than
the requirement under the Radio Authority Code. The Electoral Commission however
wished to retain this proposal.

However, we believe retaining this draft rule would mean unnecessarily imposing a
heavier regulatory burden on radio.

Section Seven: Fairness

• Practices to be followed
Broadcasters argued that this section and the following one on privacy contained
guidance rather than rules. This is because the draft rules in these sections were in
effect only practices to be followed by broadcasters so as to avoid either unfairness or
unwarranted infringements of privacy.

We agree that these two sections are different from the rest of the Broadcasting Code
and have therefore re-drafted these sections to reflect this. We have explained this in
greater detail in the Forewords to Sections: Seven and Eight.

• Young People
Several respondents proposed that in this and the following section the age at which an
adult’s consent is required for a person to feature in a programme be reduced from
eighteen to sixteen.

They argue that young people at sixteen can join the army, smoke, live away from home
and have children: they should therefore be able to decide for themselves whether or not
they can participate in a programme. Their right to freedom of expression also means
that using eighteen as the age at which a person can give consent is unduly restrictive.

In preparing the consultation document we have taken into account the Standards
Objective, in section 319(2)(a) of the Act, which requires that persons under the age of
eighteen are protected.

However we consider that the arguments presented are persuasive and are in line with
the increased rights of young people in society and the previous regulatory framework.
We have therefore changed these two sections.

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Section Eight: Privacy

• Please see comments under “Practices to be followed” and “Young People”
under Section Seven above
• Gathering material – news emergencies

Some respondents would like this section to spell out more explicitly the difference
between the considerations that apply in relation to privacy when gathering material as
opposed to broadcasting material. Many broadcasters were particularly concerned about
the issue of news gathering and in particular major news stories. Some suggest that in
such circumstances there should be no restriction on filming/recording people suffering,
or in distress, in emergencies as long as there is no infringement of privacy in the
broadcast itself or consent to broadcast is obtained. They were concerned that the
pressures on camera/sound operators at the scene of disasters and emergencies would
make it difficult for them to judge at the time whether filming or recording was an
unwarrantable infringement of privacy. They also argued that sensitive editorial
judgements about whether the material can be broadcast can be more made easily
afterwards. At its worst, some argued, these pressures could inhibit news gathering and
could create a “chilling effect” on newsgathering.

The Act requires Ofcom to consider complaints about unwarranted infringements of

privacy in connection with the obtaining of material included in a programme, as well as
in the broadcast. Therefore it is not possible, even in news, for Ofcom to fetter its
jurisdiction and not consider issues about privacy in the making of programmes.

Nevertheless, we recognise that it is essential that news organisations do not feel that
they are inhibited in gathering news material. We have therefore explicitly stated in the
Foreword to this section that, when considering complaints in this area, Ofcom will take
into account the pressures on broadcasting crews filming/recording in emergency
situations and the strong public interest in broadcasting material regarding disasters in
the news.

Section Nine: Sponsorship

We have removed a large amount of unnecessary regulation in this section. For
instance:

• Whether the sponsorship of whole channels/stations should be permitted

This has been addressed above under “issues which will be subject to further
consultation”.

• Sponsorship credits that are separated from the programme by spatial

means e.g. split screen
The European Commission has advised that a split screen technique may be used to
identify a programme sponsor. However, this may not be done in a way that
compromises the integrity of a programme. We now therefore require that sponsorship
credits must be clearly separated from programmes by temporal or spatial means.

• Sponsor references within programmes on television

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The draft code proposed that non-promotional, editorially justified references to a

sponsor should be permitted on television as they are in radio. After consultation this
proposal has been confirmed.

• Coverage of events
The detailed rules around events and event sponsorship have been removed.

• Consumer advice programmes

The restriction on television consumer advice programmes being sponsored was
included in the draft code. Some respondents questioned the need to retain such a rule
believing that other rules offered sufficient safeguards.

Having given further consideration, we agree that the other rules in the sponsorship
section provide adequate protection to the citizen-consumer. So long as there is
transparency and the audience is aware of who is sponsoring a programme the
audience are in a position to judge for themselves. We have removed this prohibition for
television to bring it in line with radio, since in this area of activity we see no reason for
the regulation to be different.

Section Ten: Commercial References and Other Matters

• Product Placement
This has been addressed above under “issues which will be subject to further
consultation”. For the present the status quo, preventing product placement, prevails.

• Cross promotion
Ofcom is currently reviewing its Rules on the Promotion of Programmes, Channels and
Related Services on Commercial Television, and will be consulting separately on this
matter later in the year. We have therefore included a reference to cross-promotion in
Section Ten of the Broadcasting Code to alert broadcasters to the possibility that
changes in this area may be made in the near future.

In other areas, we have also removed a large amount of unnecessary regulation. For
instance:

• Undue Prominence
We have noted the responses requesting clarification and have now reworded both
Rule 10.4 and a note concerning “undue prominence”. It now says that undue
prominence may arise either where there is no editorial justification or from the manner
in which the reference is made.

• Competitions outside programmes

As a result of the consultation, we have removed the rule restricting competitions
containing brand mentions to within programmes only. This will allow branded
competitions in programme trailers as well as in presentation time. However, to prevent
undue prominence for commercial products or services, Rule 10.11 requires any brand
mentions within competitions to be brief and secondary.

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• Investment recommendations
Following further legislation Rule 10.17 has been adjusted to include investment
recommendations and the appropriate appendix has also been amended. This rule will
come into effect on 1 July2005 (when the Investment Recommendation (Media)
Regulations come into force). .

• Merchandising
The majority of responses felt no additional rules were required regarding
merchandising.

In considering what rules are necessary in this area, Ofcom has to balance the
commercial interests of sponsors with safeguarding the editorial independence of the
broadcaster and protecting the viewer/listener from surreptitious advertising. Taking into
account all these matters, Ofcom has decided to remove the merchandising rules.
Broadcasters are required to maintain editorial control over programme content
(Rule 10.1). In addition, products and services must not be promoted in programmes
(Rule 10.3) and no undue prominence may be given in any programme to a product or
service (Rule 10.4). These rules are intended to prevent programmes from being used
merely as advertising platforms for merchandise and we therefore believe that separate,
specific rules on merchandising arrangements are not required.

Conclusion
As the Foreword to this Broadcasting Code explains, the Code has been developed at a
time of rapid expansion in choice for the citizen-consumer and rapid change for the
broadcast industry. The extensive consultation with viewers, listeners, broadcasters and
others, summarised in this document, has enabled us to create a code which we believe
will set a framework for the future. Of course, the application of the rules will evolve as
society, and broadcasting itself, develops.

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