Archive for the ‘OFCOM’ tag
This post was first published on LeftFootForward on January 26th 2011
There is a moment in The King’s Speech, just nominated for 12 Oscars, in which George V loses patience with his son’s stutter and yells at him to get his words out.
BSkyB has similarly lost patience with the process for deciding whether News Corporation be allowed to buy the 61 per cent of Sky it does not currently own. It has yelled at Ofcom (or the equivalent – a vitriolic letter), accusing the independent media regulator of distorting its brief, ‘using unreliable metrics’, and ‘making questionable judgments’ such that ‘its conclusions are flawed’. And this is the ‘non-confidential version’. One wonders how much ruder the confidential one was.
Are there any grounds to justify Sky’s attack?
Back in November 2010 Ofcom was asked, by the business secretary, to investigate whether News Corp’s bid for Sky raised enough questions about the future plurality of news provision to warrant passing it on to the Competition Commission.
In order to be passed on it had to pass a pretty low threshold. It simply had to assess whether the takeover would reduce the number of providers and hold a reasonable belief ‘that the proposed acquisition may operate or be expected to operate against the public interest’.
On the first, the answer was easy to calculate. At the retail level (i.e. news consumed directly by the public) the number of organisations will fall from 16 to 15. At the wholesale level (e.g. Sky providing news for commercial radio stations) the number will fall from 11 to 10.
On the second Ofcom inevitably had to take a more qualitative approach, although it has done its best to use quantitative methods to make it. It tries to work out the relative ability of different news organisations to influence and inform public opinion, based on the amount of news people consume from different outlets.
Using this approach it calculates that, for example, were the merger to go through, News Corp’s wholesale news reach as a percentage of regular news consumers would increase from 32% to 51%.
Therefore on both these criteria Ofcom found that the public would have less choice of news provider. Given such an assessment it is difficult to see how Ofcom could have done anything other than advise Jeremy Hunt to refer the bid to the Competition Commission.
There is a battle brewing for 2010 around regulation of audio-visual news (also known sometimes as on demand programme services, or TV-on-demand, or video, but more about that later). At the heart of the issue is how the different media regulatory bodies judge when audio visual material is television-like and when it’s not. Only then can they decide who has responsibility for regulating it. Or not. Tricky? You haven’t heard the half of it.
The battle comes to a head next year because:
- The government is accepting bids for Independently Funded News Consortia (IFNC) that will step in when ITV steps out of producing regional news (see report on Media Guardian)
- News groups – including newspapers – are already putting together bids to run IFNCs (e.g. Trinity Mirror, PA and Ten Alps in the North East). Meaning that newspapers will be involved in the production of audio visual material for broadcast on TV and on the web
- The Audio Visual Media Services Directive comes into force on 19th December 2009, meaning that all audio visual material on the web that is television like will be regulated by ATVOD (the Association for Television on Demand)
- The PCC’s remit already extends to audio visual material on newspaper websites, such as that produced and broadcast on Trinity Mirror sites (e.g. on Birmingham Mail)
- Broadcast television news (i.e. the stuff you see on your telly in the living room) will continue to be regulated by Ofcom including, presumably, the regional news produced by the IFNCs on ITV between, for example, 6-6.30pm
These things, you have probably noticed, are not mutually compatible. They add up, at the very least, to a regulatory soup and potentially a regional news car crash (please excuse the multiple mixed metaphors).
Even in the most straightforward future scenario in which: the Conservatives win the next election and maintain commitment to IFNCs (already in doubt), Ofcom accepts a number of bids, and there is a relatively smooth transfer of services at the end of 2010 (alot of ‘ifs’ there) – it is still far from clear how these services would be regulated and by who.
Which is presumably why Baroness Buscombe, the chair of the PCC, has launched a broadside against Ofcom, warning this week that “extension of Ofcom’s powers beyond television could damage freedom of expression” (see ‘Buscombe: Ofcom expansion has risks for free speech‘).
The PCC is presumably concerned that if, say, Trinity Mirror-PA-Ten Alps wins the NE England franchise for IFNC, then the audio visual news it produces will no longer be regulated by the PCC but by Ofcom and, by extension, all video content broadcast on Trinity Mirror newspaper websites will have to adhere to broadcast regulations on impartiality.
This is highly unlikely. For one thing, the AVMS directive, which will apply to the new television-like services online, will not be regulated by Ofcom but by ATVOD, and does not include guidelines about impartiality (though ATVOD does accept Ofcom as a backstop regulator). Moreover, the IFNC is not the same as Trinity Mirror newspapers, and will be distinguishable from them (not least because it will be making programmes for television broadcast).
However, she is right to start to raise questions about audio visual news regulation. From the perspective of the public, who regulates what as regards audio visual material online is already confusing. After the 19th December (when AVMS comes into force) it will be even more so. By the end of next year it will only be lawyers and regulatory nerds who will have a clue as to who is responsible to whom for what. This is not a great situation to end up in.
These issues desperately need a proper public airing in the first half of 2010. Unfortunately, given the forthcoming election, they are liable to get lost in politics until the summer, by which time things will be even more of a muddle than they are now.
Reading reports about the alleged dust up between James Murdoch and Robert Peston in Edinburgh one gets the impression that their views about the future of UK media were diametrically opposed to one another. Yet reading their speeches in full (Murdoch’s MacTaggart Lecture and Robert Peston’s Richard Dunn Memorial Lecture) one is struck by the frequency with which they agree.
Both emphasise that the lines that used to divide print, broadcast and digital are disappearing. “Broadcasting is now part of a single all-media market” Murdoch said. Peston made the same point but directed it more at journalism: “the traditional distinctions between television journalists, radio journalists and print journalists are quite close to being obsolete”.
Both also noted how digital convergence is a fact of life for the producer if not yet for all consumers. “Even if part of the consumption of media remains in the analogue world”, Murdoch said, “…the production of those creative works is already wholly digital”. Anyone thinking of joining the industry, Peston said, should not, “think of themselves as wanting to be broadcast journalists, or radio journalists or print journalists: [because] increasingly it’s all the same thing”. “[I]n national and international news,’ Peston continued, “convergence has in a very fundamental sense already happened for TV, radio and newspapers. We all do video, audio and the written word.”
And both recognised the unsustainability of contemporary media regulation. Peston was very clear; “Old regulations don’t fit the new media world”. For Murdoch, “we [in the UK] have analogue attitudes in a digital age” and a regulatory framework that constrains “enterprise, free choice and commercial investment”.
Where they differed, of course, was in their attitudes to how this regulation might change. For Murdoch the – rather simplistic – answer to regulatory inconsistency was to get rid of all regulation (well, almost all. Murdoch would like the government to crack down on illegal downloaders). Remove regulation, and cut the BBC down to a fraction of its current size and, Murdoch argued, the UK would release a fountain of pent-up creative energy and investment.
One wonders how familiar Murdoch is with the US. For someone who spends half his life on a plane it seems strange he does not make reference to the crisis in funding of journalism there. Few news organisations have successfully been able to charge for content in the States, despite the lack of a BBC. Still, he could justifiably counter that there has been more investment in innovation in the US, and more urgency to find new digital business models.
Peston’s attitude towards regulation is rather less apocalyptic. Peston is no Pangloss but he does not, like Murdoch, see regulation as inherently regressive. Indeed Peston remarks on the fantastic failure of market mechanisms to prevent financial collapse in 2007/08. Yet though Peston feels uneasy about significant media deregulation, he recognises that his uneasiness ‘may not be rational’. For such decisions to be made rationally, Peston suggests, we need ‘a robust new way of measuring market share’. A sensible observation that could be extended beyond market share to measurement of output. Peston is also, as one might expect, rather less down on the BBC.
Missing from both speeches was a realistic vision of how best to sustain public interest journalism in the digital age. Murdoch made very clear what he was against, but his easy solution to the crisis in news – deregulate – was unconvincing. Peston gave us an insight into the eye of the crisis – from someone who has been in the middle it – but not a route out.
Helpful as it may be to bring attention to the ongoing woes of the media – and news in particular – we need more ideas about where to go next. Whether or not you disagree with the Press Associations public service reporting initiative, or with Ofcom’s proposals for IFNC’s, at least they represent attempts to work out how to solve the ‘democratic deficit’ problem. That problem is likely to become even more acute this autumn whatever the government’s approach to liberalization of media ownership.
‘The home of free speech’ claims the Sun’s new radio show, SunTalk, hosted by its columnist Jon Gaunt. “We are not regulated by Ofcom, we are regulated by the Press Complaints Commission. We don’t want people to libel anyone or any of that nonsense, we want people to talk from the heart. If we were a traditional radio station that would not be possible,” Gaunt said.
Well, for starters he’s shifted from a code that is captured on 97 A4 pages, to one which can be written (admittedly in small font) on one A4 page. Losing 96 pages of rules certainly sounds alot freer. And it’s impressive that SunTalk makes its adherence to the PCC code clear on the website (which is a lesson to the rest of The Sun where references to the code are decidedly sparse).
And there are indeed a bunch of areas where Gaunt will find himself much less constrained. Particularly with respect to:
Harm and Offence – he won’t be required to ‘provide adequate protection for members of the public from the inclusion… of harmful and/or offensive material.’ There would be no similar regulatory intervention on SunTalk, for example, if there were to be a Ross/Brand ‘Sachsgate’ episode (on grounds of harm and offence, though there could be on privacy). Which may mean a more proportionate media response.
Due Impartiality and Due Accuracy – though Gaunty ‘must take care not to publish inaccurate, misleading or distorted information’, he will be under no such limits when it comes to impartiality. He will not need to maintain ‘Due impartiality on matters of political or industrial controversy’ nor need he be too concerned to make sure ‘alternative viewpoints must be adequately represented’ or be careful not to give any political views ‘particular prominence’. This frees him up to do things like invite David Cameron onto the programme for an hour (as he did last Monday), and to refer to him as ‘Prime Minister’.
Elections and referendums – the SunTalk presenter will not be required to offer space to all candidates in the run-up to an election, nor will he have to stop all discussion and analysis once the polls open. It will be fascinating to see how SunTalk reports on the European elections coming up this June.
So far, the story seems to fit with the way it’s been presented – i.e. whether you like it or not, this means live radio broadcasts (or ones with a 7-second delay) are freer to start being politically partial and polemic.
But there are also some other areas where things are more complicated, particularly as regards commercial constraints and how complaints are dealt with.
On sponsorship, for example, the broadcasting code makes clear that TV and radio have to be transparent about their sponsors, can’t promote products within programmes, and need to protect editorial independence within programmes. The press code doesn’t comment on commercial issues like this, so presumably no such restrictions apply (though we start to stray here into Advertising Standards Authority territory, and OFT).
Similarly, it does not refer to competitions. Whereas the broadcasting code states that ‘Competitions should be conducted fairly, prizes should be described accurately and rules should be clear and appropriately made known’.
However, the real confusion comes less from what SunTalk can and can’t do, than from the inconsistency from what it can and can’t do compared to other broadcasters. So, for example, though you can now watch Sky news clips on the Sun website, and listen to SunTalk, you couldn’t listen to SunTalk through SkyTV because it would be regulated differently. So can Sky broadcast SunTalk via the Sky website and if so what rules should apply? From the perspective of the public this cannot help but get confusing.
There’s also a challenge for SunTalk deciding how it deals with complaints. On Ofcom regulated sites, for example, ‘mistakes in news should be acknowledged and corrected on air quickly’. It is not yet clear how mistakes on SunTalk will be acknowledged and corrected.
SunTalk only started broadcasting on 24 April so, unsurprisingly, there is yet to be a test case. But it would be odd if there was not some controversy between now and the autumn – if only to encourage more people to tune in…