Media Law

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Media Law in Northern Ireland

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Television and Radio – Broadcasting Regulation

Office of Communications

What is meant by the Office of Communications?

The Office of Communications or Ofcom as it is commonly known is the communications regulator in the UK. The following sectors are regulated by Ofcom:

• Television
• Radio
• Fixed line telecoms
• Mobile telecoms
• Internet

The Establishment of the Office of Communications

• Ofcom was established by the Communications Act 2003 and has the general duties of furthering the interests of citizens and consumers.
• Ofcom is accountable to Parliament and is directly involved in setting up technical aspects of policy, implementing and enforcing the law.
• Ofcom acts independently of the government enabling them to act solely in the interests of consumers but often work closely with the Department of Trade and the Department for Culture Media and Sport.

Specific Duties of Ofcom

Ofcom’s specific duties are as follows:

• Ensuring the optimal use of the electro-magnetic spectrum
• Ensuring that a wide range of electronic communications services – including high speed data services – is available throughout the United Kingdom
• Ensuring a wide range of TV and radio services of high quality and wide appeal
• Maintaining plurality in the provision of broadcasting
• Applying adequate protection for audiences against offensive or harmful material
• Applying adequate protection for audiences against unfairness or the infringement of privacy.

Broadcasting Regulation

The regulation of the television industry prior to the Communications Act 2003 was carried out by the Broadcasting Standards Commission and the Independent Television Commission in relation to television and the Radio Authority in relation to the radio. Now following the 2003 Act the powers and functions of all have been taken over by Ofcom.

Applying adequate Protection for audiences against offensive or harmful material

When concerned with offensive or harmful material Ofcom will investigate the material in accordance with accepted standards.

Ofcom protect the audience by putting specific codes in place which producers or broadcasts should take into account when producing their broadcasts.

Ofcom will further protect the interests of citizens in relation to this by fully researching any complaints which they may have received from members of the general public in relation to offensive or harmful material.

Applying adequate protection for audiences against unfairness or the infringement of privacy

Ofcom will ensure that audiences are protected against unfairness of infringement of privacy in relation to broadcasting by fully examining any complaint they receive by a member of the general public in relation to this.

Ofcom complaints procedure

When an individual is concerned with the standards of a broadcast they will be free to right to Ofcom to exhibit their concern but when an individual is concerned with unfairness of infringement of privacy Ofcom will only investigate a claim from an individual who has a direct interest in the broadcast.

The Ofcom Broadcasting Code 2009

The Ofcom Broadcasting Code 2009 took effect on the 16 December 2009 and now covers all programmes broadcast on or after 16 December. Programmes broadcast before this date as still covered by the 2005 Broadcasting Code.

The Broadcasting Code 2009 puts in place specific standards which must be adhered to when broadcasting programmes. In particular in contains provisions regarding the following:

• Protection of Under 18’s
• Harm and Offence
• Crime
• Religion
• Privacy

Protection of Under 18’s

In relation to this key area of the code the following provisions are made:

• Material that might seriously impair the physical, mental or moral development of people under eighteen must not be broadcast.
• In the provision of services, broadcasters must take all reasonable steps to protect people under eighteen.
• Children must also be protected in the form of appropriate scheduling ensuring that they are not privy to material that is unsuitable for them.

Definition of Children

In this context children is taken to mean anyone under the age of 15.

What is meant by appropriate scheduling?

The following factors are taken into considering when looking at appropriate scheduling:

• the nature of the content;

• the likely number and age range of children in the audience, taking into account school time, weekends and holidays;

• the start time and finish time of the programme;

• the nature of the channel or station and the particular programme; and

• the likely expectations of the audience for a particular channel or station at a particular time and on a particular day.

The Watershed – Television broadcasting

The term watershed is a term which applies specifically to television and means that programmes which would be regarded as unsuitable for children should not be shown after 21.00 or before 05.30.

Children Likely to be listening – Radio broadcasting

Radio broadcasters must pay particular attention to their content during times when it is said that children are likely to be listening. This is particularly during the “school run” and for those hours immediately after school.

Offensive Language, Sexual Material, Use of Drugs Alcohol or Smoking

These subjects must be appropriately limited prior to the watershed and at times when children are likely to be listening. In cases where the programmes are made specifically for children these subjects must not be featured unless there is strong editorial justification.

Restricted Films

Films which are classified as restricted to people of the age of 18 or over cannot be shown prior to the watershed unless they are shown on pay per view services.

Films which are classified as restricted to people of the age of 15 or over can only be shown prior to the watershed if there is mandatory restricted access in place and those security systems in place must mandatorily be described to all subscribers.

Harm and Offence

The principal contained within the Broadcasting Code 2009 in relation to harm and offence is as follows:

To ensure that generally accepted standards are applied to the content of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material.

Generally accepted Standards

When decided what is a generally accepted standard broadcasters of both television and radio must ensure that material which may cause offence is justified by the context of the material.

What material is included as harmful or offensive?

Such material may include the following:

• Offensive language
• Violence
• Sex and sexual violence
• Humiliation
• Discriminatory treatment or language  an example of this is on the grounds of age, disability, gender, race, religion, beliefs and sexual orientation

What is meant by Context of the material?

When looking at the context of the material factors such as the editorial content of the programme or series, the service which the programme is broadcast on, the time of the broadcast, the programmes scheduled both before and after the programme in question, the degree of harm likely to have been caused by the inclusion and the potential size of the audience among other factors will be taken into account.

Crime

• Material that is likely to encourage or incite the commission of a crime or to lead to disorder should not be included in television or radio services.
• Material which either describes or demonstrates criminal techniques containing essential details of the techniques must not be broadcast unless they are editorially justified.
• If a programme is made concerning particular crimes then no payment can be made to a criminal involved in any of the crimes depicted in the broadcast.
• During criminal proceedings no payment can be made or offered to witnesses involved in those proceedings.

Religion

• Broadcasters have to exercise the proper degree of responsibility with respect to the content of programmes which are religious.
• Broadcasters must ensure that religious programmes do not involve the improper exploitation of any susceptibilities of the audience for such a programme.
• Broadcasters must also ensure that religious programmes do not involve any abusive treatment of the religious views belonging to a particular religion.

Privacy

• Broadcasters must avoid unwarranted infringement of privacy in the programmes but must also be ensure against the unwarranted infringement of privacy in obtaining the material used in the programmes.
• For a use to be warranted the broadcaster has to be able to demonstrate the infringement of the privacy as warranted in each case. The best example of this is that it would be in the public interest.

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