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Television, regulation, independent regulator, convergence, media literacy
All around the world, television is regulated. The extent of the regulation and how it is done varies, although the general themes are fairly universal. But as nations move towards a converged, digital future, key questions remain: Why should television be regulated? And if it is regulated, then who should do it, and how should they do it? Should regulation be only about protection? Should regulation also have a role in education? And indeed, can regulation be truly effective without education?
These are essential questions, and the reason why they are so important is because television is important, however transmitted, be it over the air, cable, satellite or internet. Throughout the developed world, nearly every household has at least one television set. Indeed, an examination of 184 countries worldwide showed that over 65% of households had one television set, with most in the developed world having an average of two per household1. People watch television for hours each day; after sleeping and working, more time is spent watching television than anything else in the lives of people in the developed world –East and West.
Although nobody regulates people’s sleeping habits –at least not yet– there are many laws that protect people while they work: labour laws, health and safety legislation, and so on. Given that so much of people’s time is spent watching television, maybe it is comforting to think that this, too, is subject to a degree of protective supervision. After all, television is important –as well as interesting. As the British humorist Alan Coren said, «Television is more interesting than people. If it were not, we would have people standing in the corners of our rooms».
Television has been, and remains, the most powerful mass medium of the modern age. It is more powerful than radio because it adds pictures to the sound. It became more powerful than newspapers because it is largely free to receive. And it is still more powerful than the internet because of the very fact that it is broadcasting and reaches a mass audience: it is not a one-to-one medium, but one-to-many and therefore it has the capacity to influence and change millions of people at once. Politicians quickly understood the potential of television and have used it as their main means of speaking to the electorate. And so too have advertisers, who understand that, as a way of communicating with a large group of consumers, television is unparalleled.
Given the power of television, it is understandable that governments have wished to exercise a degree of control over it. In authoritarian regimes, that has meant the government censoring information and restricting debate. In benign governments, it means ensuring that television is used for the public good to promote democratic expression and cultural heritage, and that viewers are protected from potential harm. For the purpose of this analysis, regulation as a tool of censorship and repression will not be examined. Rather, the analysis will bear on what is often referred to as the «European model», where regulation is used to protect basic rights, including freedom of expression, comparing it, when need be, to other models and countries.
Freedom of expression and information constitutes one of the essential human rights and it is important in democratic societies for there to be a wide range of independent and autonomous means of communication. Article 19 of the Universal Declaration of Human Rights states that «Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers». But this is not an unrestricted right and it comes with responsibilities.
In Europe, the right to freedom of expression is subject to certain conditions and limitations which are set out in law. Typically (and as set out in Article 10 of the European Convention on Human Rights, for example), the exclusions cover: the prevention of disorder or crime, the protection of health or morals, the protection of the reputation and rights of others (including the right to privacy), preventing the disclosure of information received in confidence, and maintaining the authority and impartiality of the judiciary2. Therefore one of the key issues for legislators is determining where the balance lies between potentially conflicting rights: the commercial rights of the broadcaster, society’s rights as represented by the State, and the individual rights.
Totalitarian states generally make it an offence to broadcast material which may be critical of their government. Unfortunately, there are still many such states, even in Europe, like the Republic of Belarus for example. Although these States may represent an extreme position, most countries will not tolerate broadcasting which encourages revolt. A balance must be sought which, on the one hand, allows freedom of expression of opinion, but does not, on the other hand, go so far as to incite to crime, including political insurgence. Wherever the balance is drawn, it is vital that the rules are codified to enable broadcasters, viewers, and law-makers to know where the boundaries of acceptability and proportionality lie. And in order for those rules to be truly effective and reflective of the society that makes them, viewers –that is, citizens– must also understand and accept them.
Historically, the legal justification for the regulation of television has relied on the fact that television uses a scarce, public resource: spectrum. The spectrum which broadcasters use is allocated to each country by an agency of the United Nations, the International Telecommunications Union (ITU), and the individual countries then divide that spectrum into separate channels and assign it to the broadcasters. There is only so much spectrum available for each country and therefore it is a scarce resource and potentially quite valuable. For example, in the UK, all television spectrum already has been allocated and the regulator, OFCOM, is introducing spectrum pricing which will mean that every broadcaster will have to pay for the spectrum they use, based on commercial market value. It is very unusual for a country to have no method of controlling the use of television spectrum: even war-torn countries like Iraq and Afghanistan licence their broadcast spectrum and they have regulators in place to do the licensing.
As Lord Reith, the founder of the BBC said, television is there to inform, educate, and entertain and, arguably, television can do this more effectively than any other single medium. So, the use of scarce, valuable public resources for informing, educating and entertaining society justifies its regulation.
If there is going to be regulation, then there needs to be someone with the legal authority to do it: a regulator. There are three options: regulation done by an independent regulator; regulation done through a government minister and his/her department, and regulation by the courts.
It is generally agreed as best international practice that an important element in the preservation of broadcasting as part of the democratic process is the establishment of an independent broadcasting regulator. To be independent, the broadcasting regulatory authority must be able to function free from any interference or pressure from political or economic forces. An independent regulatory authority should have its duties and responsibilities set out in law, and its decisions should be subject to appeal in a court of law.
Internationally, there is an increase in the number of «converged» regulatory bodies exercising more than one regulatory function. For example, in the UK, OFCOM regulates broadcasting, telecommunications, and spectrum management as well as having certain competition functions. In Malaysia, the regulator is also responsible for the Post Office. The Gibraltar Regulatory Authority adds gambling to the list. But, whatever the regulatory functions that are covered, if the regulator is independent from political pressure and interference, the outcome –for citizens– will be television which is also more independent. This is particularly important in democracies, where the availability of an independent media is vital for a functioning, informed electorate.
To achieve an independent regulator, the process of appointment should be transparent, and set out in statute. In many societies, it can be a major challenge for politicians in government to agree to a process which will deliver a regulatory authority consisting of independent individuals; there is no «right» method. Each country must consider how best to appoint men and women who are representative of the broad spectrum of society, who are qualified to take the range of complex decisions incumbent upon a broadcasting regulator, and who have the strength of character to resist political and financial pressures.
One of the most invidious ways in which a regulatory authority can be subject to political pressure and influence is through the threat of dismissal of its chairman or members. Therefore, the law should state clearly the factors which may lead to dismissal, for example, physical or mental incapacity, or a clear breach of the rules of propriety.
Funding can also be used as a means of exerting political pressure: if the authority does not act in accordance with government wishes, funding could be withdrawn. Terms of funding should be set out in law, and, wherever possible, be kept separate from any potential political interference.
Where there is no independent regulator, decisions about licensing or authorising television broadcasts are usually done directly by a government department. This can, of course, lead to direct political intervention in determining who can and cannot broadcast. Whilst this can seem superficially attractive to governments, it becomes less attractive if the government in future finds itself out of power and in opposition with an antagonistic broadcast media working against its interests!
For example, in the Czech Republic, members of the Television and Radio Broadcasting Council are appointed by Parliament. At the time of their appointment in 2000, government was formed by two main parties, the ODS and CSSD. An election in 2002 shifted the balance of power to a new coalition made up of CSSD with the support of two other parties. The ODS is now in opposition. This has not only caused tension between the government and the regulator, but also between government and the most popular television channel which is thought to be pro-ODS and anti the new coalition partners. This television channel was, of course, licensed by the Broadcasting Council.
The third instrument for regulation is direct exercise of the law by the courts. In quite a few countries, even though an independent regulatory authority sets out the standards which must be applied to all programme content (usually through the publication of a designated Code)3, any breach of these standards is considered by the courts, not the regulatory authority. This means that any sanctions –such as fines or the revocation of a licence– are determined through a judicial, rather than an administrative process. What must be balanced are the speed, ease and relative low cost of administrative sanctions with the security of proper judicial due process.
For example, in Sweden, the Swedish Broadcasting Authority (SBA) is the regulator responsible for ensuring that all licensed broadcasters comply with the terms of their licences as well as the Radio and Television Act. If a licence condition is breached (for example, a requirement to observe political impartiality), the SBA can order the broadcaster to announce the SBA’s decision in a broadcast. However, if a rule set out in the Radio Television Act (on advertising, sponsorship or undue prominence) is breached, the SBA must petition the Court. It is then up to the Court to determine whether or not to impose a fine and if so, how much.
The mechanism used for placing obligations on broadcasters is generally through licensing. It is rare for the State to give away or sell broadcast spectrum in perpetuity; generally broadcasters are allowed to use it for limited set periods under a licence. Sometimes, licences are sold by the government; often they are free. Depending on the level of demand, they are either allocated on a first-come first-served basis, or competitions are held. But it is through the licensing process that basic regulatory conditions are applied and enforced.
In addition, the general law will apply to television broadcasters. Sometimes, provisions which refer specifically to television content are set out in legislation; alternatively, they are set out in separate codes or secondary legislation. For example, the Canadian Broadcasting Act provides for the creation of regulations through secondary legislation. The Canadian Television Broadcasting Regulations set out a number of provisions relating to content which broadcasters must follow. To support these regulations, a self-regulatory body, the Canadian Broadcasting Standards Council, has developed its own codes to which members (all Canadian broadcasters) must comply. In Bosnia-Herzegovina, the Communications Regulatory Agency must write, publish and apply its own broadcast content code as instructed in the Law of Communications. It adopted its new code in January 2008.
One of the very key reasons why television is regulated is to ensure that what people see on the screen reflects their society and enhances their values and ethics. In this regard, regulation of content differs from censorship. Whereas censorship involves the application of rules by a legitimate (usually State) authority prior to publication or broadcast, regulation entails the post hoc application of rules by a legitimate authority to what has already been published. Regulation cannot directly prevent the publication of material; it can only apply sanctions for breaches of the rules after the fact. In practice, the existence of regulation inevitably leads to selfcensorship by broadcasters, as they seek to avoid being punished for breaking the rules. However, the ultimate choice of whether or not to publish is that of the broadcaster, and not of the regulator; the regulator exercises no editorial control.
More than any other aspect of regulation, effective content regulation is inextricably linked to media literacy. If the purpose of content regulation is to ensure that programme content reflects generally accepted standards and expectations, then viewers –as well as broadcasters and the regulator– have to understand what they can expect to receive through their television sets. In fact, regulation works best when all players are working to the same understanding: viewers tell the regulator what they want, the regulator encodes those expectations in regulation, and broadcasters, following the rules, give the public what they wish to see. When this cycle runs effectively, a media literate citizenry is able to ensure that the quality and standards of television –as policed by the regulator– remain high.
Nearly everywhere in the world, countries set rules to ensure that children are not harmed –either physically, psychologically or morally– and apply regulations restricting violence, sexual portrayal and bad language. Many countries insist that warnings precede programmes which are not suitable for children, or that on-screen symbols are used to «rate» programmes. Many countries also operate a «watershed» system for television, where programmes which have more adult themes or content cannot be shown while young children are most likely to be watching, usually before 21.00 or 22.00.
As well as protecting children, society is also concerned about protecting adults. In some countries, issues of taste and decency are heavily regulated to ensure that nobody –even adults– are offended by what they see. For example, in most Muslim countries, nothing can be broadcast which offends against the morals and ethical code of Islam. This will extend from not permitting any encouragement of dating (which is not allowed in Islam) to showing any nudity at all.
Most European countries also apply rules which prevent the most offensive material from being shown, particularly material which is considered to be degrading to human dignity. What is considered offensive will vary considerably from country to country, and is very culturally specific. For example, sexual nudity is frowned upon in the USA, whereas graphic violence is fairly tolerated. By contrast, in the UK violence is limited, whereas fairly graphic sexual behaviour is acceptable, at least late at night. Attitudes to homosexuality also vary considerably, even within Europe4.
Although issues of taste will vary from society to society –and must be developed in a culturally sensitive way– there are also issues of harm which are perhaps more universal. At its most obvious, there are usually rules which prevent television being used as an instrument to generate crime or disorder. In particular, no government will tolerate television being used to provoke political uprising. Rules against harm can include not permitting details of suicide, or how to commit crimes, or showing dangerous behaviour which could be easily imitated by children.
Given the power of the broadcast media, it is perhaps especially important to apply and enforce rules to ensure that programmes do not broadcast material –including the views of interviewees or programme guests– which discriminate against people, for example on the grounds of race, nationality, religion or sex. Associated with this, many regulators apply rules which prevent stereotyping of ethnic minorities, women, and disabled people.
Religious broadcasting is another sensitive area where special rules may be applied to ensure that due respect is given to all religious beliefs, and religious intolerance is not provoked. Again, this will vary from country to country: in Muslim countries, it is illegal to encourage conversion from Islam, whereas conversion to Islam is positively encouraged.
Given the power of broadcasting, broadcasters generally are under an obligation to be fair in their treatment of both subjects and participants in programmes. In many parts of the world, broadcasters are required to offer a prompt right of reply to any person or organisation where a programme has been inaccurate and as a result, unfair.
One of the key requirements for the proper application of democracy is the availability of accurate news. Although this is a key standard of good journalism, it is perhaps particularly important in the broadcast media, given their persuasive power. Some countries, for example many within Europe, also require news to be impartial and unbiased. This is not the case in others, for example the USA, where the editorial bias of the channel’s owner can filter through to news.
It is also vital in any functioning democracy to ensure that election coverage is dealt with in a fair and accurate way. Many countries apply strict rules on the amount of political advertising that can be broadcast, especially during an election period. Most European countries also apply rules which require that each major political party receive balanced and equal coverage in news and other programming.
Another aspect of television regulation is consumer protection. An obvious means of protecting consumers is to require that all television advertising is accurate and not misleading. Most countries have methods in place to regulate advertising: at times, it is done by the main television regulator, although it is often done through self-regulatory bodies that have responsibility for all advertising, regardless of media. In addition, many countries apply specific rules prohibiting television advertising of certain products (such as guns, or cigarettes) or restricting the times at which they can be advertised (for example, alcohol or contraceptives).
Many countries seek to set rules which limit the amount of advertising available on broadcast services. Within the European Economic Area, there are strict rules on the amount of television advertising which is permitted, with an average of 12 minutes per hour allowed. There are also rules setting out the spacing of advertising breaks within programmes, and rules on the scheduling of advertising. While these rules have an effect on the advertising market (sometimes serving to increase the cost of television advertising by limiting its availability), the prime purpose is to ensure that viewers’ enjoyment of television is not marred by too many or too frequent advertising breaks. Similarly, European television is subject to strict rules maintaining a separation between advertising and programming, meaning that product placement and undue prominence of commercial products is not permitted. These rules are enforced in order to ensure that editorial integrity is not undermined by commercial interests, again at least in part to enhance the quality of television for viewers.
As well as restricting what can be broadcast, television regulation can also place positive obligations on broadcasters, for example by obliging them to broadcast what is known as public service programmes, typically news, educational, religious and children’s programming.
A core decision for governments is whether they will provide for a dedicated public service broadcaster who is independent of government but which is obliged to provide certain programming in the public interest in return for a degree of State support. This support is usually in the form of funding, either in part (as in Kosovo where advertiser funding is supplemented by a charge added to every electricity bill), or in whole (as in the UK where the BBC is funded entirely by a compulsory licence fee charged to all households with a television).
Increasingly throughout the world where State broadcasters still exist, steps are being taken to transfer them to being independent public service broadcasters accountable to an independent board, appointed by government. Wherever a public service broadcaster is being set up, the fundamental issues are: determining the method of governance and accountability, deciding how it is to be funded, and what the key programming obligations are to be.
One of the reasons why public service broadcasting is supported by most governments in the world has to do with cultural imperatives. Many governments are increasingly worried about the effects of globalisation on local culture, often citing the spread of American television as a cause of a loss of local or national identity. The provision of public service broadcasting offsets this trend, as it is a means of ensuring that there is at least one television service whose role is to reflect society back to itself.
Regulation can also have economic objectives, to promote trade, and fair competition but these are less likely to overlap with the interests of media literacy. However, regulatory bodies usually have responsibilities to apply ownership regulations to ensure adequate plurality of ownership of broadcasters. At times, these can be quite restrictive and straightforward, such as in Armenia where no company is permitted to hold more than one television licence in any one locality. Or they can be more complex, as in France, where an intricate matrix is applied limiting the numbers of overlapping television, radio and newspapers that any one body can own. Such ownership rules go beyond economic competition concerns; they are applied to ensure that there is a range of sources of information available to the public. For that reason, citizens should be able to understand why having a choice of news providers, a range of information sources is indeed important. But even where citizens do not have that awareness, regulation –in the form of ownership limits– acts as a proxy. Clearly, the regulator cannot force viewers to compare and contrast television stations, but it can ensure that a choice is at least available.
If this, then, is historically how and why television has been regulated, what of the future? The reasons for regulating broadcasting stem from the basic premise that, as television uses spectrum –which is a scarce public resource– it is reasonable for the State to apply restrictions and obligations on its use. But this scarcity rationale argument loses much of its power when considering the digital future, which offers an abundance of channels.
Around the world, what is now known as analogue terrestrial television is coming to an end. This is because the spectrum which is currently allocated on a global basis to television is going to be made available for other uses, most likely mobile telecommunications, though discussions about the use of this «digital dividend» are not over yet (community associations are seeking to claim some of it). Instead, television services will move to another part of the spectrum which enables the television signals to be condensed and sent more efficiently. Major public policy choices have to be made in advance of this move to digital television: Will the new technology be used for the broadcast of a greater number of television services –which is how digital television will be applied in Europe– or will it be used to enable high definition television with better picture quality, as the USA has decided? And all of this is happening quickly, with the USA moving to digital by 2010, and much of Europe planning the switchover by 2012.
But, whatever decisions are taken about how digital television spectrum will be used, the fact remains that the scarcity arguments are no longer as relevant as a basic justification for regulating television. Whether or not used for that purpose, digital spectrum can accommodate far more television services than the current analogue spectrum. Add to this the fact that cable and satellite distribution systems are also in the process of becoming digitalised –thereby effectively doing away with any arguments about scarcity– there is room for everybody. Furthermore, as broadband penetration increases and bandwidths grow, the availability of television delivery over the internet becomes very much a reality.
So, in the new digital world, to what extent do the arguments for regulating television remain? If the main barrier to entry –shortage of space– has been eliminated, is there still a justification for licensing television, restricting content or imposing obligations on what should be broadcast?
Many believe there are, although the scope and priorities of regulation are likely to change.
Examining the current reasons for regulating television, it can be seen that many of them lose much of their rationale when applied to the multi-channel, converged digital future. For example, with a large market and lower barriers to entry, there is little reason to regulate for the traditional economic purposes above and beyond the application of general competition law. Instead, the focus shifts to ensuring that access to new platforms and electronic programme guides is offered on fair and nondiscriminatory terms. Where there is a public service broadcaster, the regulator has to consider whether the regulatory framework and funding is adequate: Can the PSB afford to move to digital, to use the internet and offer new channels? Is it necessary to impose «must carry» provisions on new platforms, and to ensure that the PSB gets priority listing on any electronic programme guides, as happens in the UK?
But if the focus of economic regulation shifts, what about the cultural reasons for regulation, ensuring that accepted standards of protection are applied? There is no reason to believe that the public, as well as governments, will stop expecting children to be protected, or for there to be no adequate protection against harm and offence, unfair treatment, nor protection for democratic purposes or consumer protection. In the same way, there will be even more need to educate and inform the public and their children about their rights and responsibilities online and offline. In future, there will be a change which is already beginning: rather than relying on regulatory authorities to bear the brunt of responsibility, the focus of regulation will start to shift towards more self-regulation by both providers and users. Content providers, be they broadcasters or internet providers and distributors, will increasingly be expected to give audiences more information about content, for example by using ratings and tools such as filters, to enable users to decide themselves what they will and will not access.
However, audiences will only be able to take decisions about what they want to watch if they are informed and trained. Therefore, the role of media literacy and education will grow –that is, the means by which the public learns how to manage this new, multi-informational, mass media converged digital world. There is no doubt that the regulator will continue to have an important role to play even as countries shift towards greater self-regulation and individual responsibility, both by putting the means in place to oversee new regulatory methods and by leading the push towards greater media literacy. Already, regulators in a number of countries are taking an interest in media literacy, including Australia, Canada, Israel, New Zealand, Chile, Romania and Turkey. In the UK, the communications regulator OFCOM has a specific remit to promote media literacy5. Its work is intended:
• To give people the opportunity and motivation to develop competence and confidence to participate in communications technology and digital society.
• To inform and empower people to manage their own media activity (both consumption and creation).
It does this mainly by setting itself the goal to be the leading centre of research on media literacy, by acting as a network hub amongst a wide range of stakeholders, and by identifying and supporting projects such as those which encourage older people to gain confidence using digital and internet technology, in preparation for the digital switchover. Another significant aspect of OFCOM’s involvement in media literacy has been its support of common principles for information provision and labelling to be applied by all providers of audiovisual content (both broadcasting and on-line) in relation to potentially harmful and/or offensive material.
There is an undoubted question over the extent to which a statutory regulatory body should lead the move into media literacy: Surely this is something which should involve the industry, educationalists, social scientists and citizens themselves? Nonetheless, the regulatory authority is in an ideal position to act as a neutral arbiter and –importantly– as an advisor to government on media literacy initiatives. Furthermore, the legitimisation of the role of the regulator itself depends to a large extent on citizens’ understanding of the purpose and means of regulation.
Media literacy includes ensuring that television viewers understand there is a «watershed» (if there is one) and what it means; or understanding that they have a right to be able to believe what they see on their television news, and to complain if they see something which does not meet generally accepted standards. The regulator has a key role to play not only in developing sound and appropriate responses to regulatory policies, but also in disseminating a practical understanding of those policies to audiences. Because, regardless of the growth in the number of media channels or the method of delivery of those channels, there will remain the desire to ensure that our most important conduit for understanding the world remains fair, honest, decent and true.
1 See www.nationmaster.com/graph/med_hou_wit_tel-media-households-with-television#definition using the World Development Indicators Database using available data from 1987 to 2005. It is likely the figure is higher by now.
2 «Article 13 of the American Convention on Human Rights (or the Pact of San Jose), which applies in much of Latin America, also sets out limitations on the right to freedom of expression. Those limitations are: the rights or reputations of others and the protection of national security, public order, or public health or morals. In addition, film censorship is specifically allowed, and incitement to hatred on grounds of race, colour, religion, language or national origin may be punishable by law. By contrast, the United States of America has taken a different route. Freedom of speech is set out in the First Amendment to the Constitution as an inalienable right, with no restrictions contained in either the Constitution itself or its Amendments. The only limitations to that right are those which have been agreed by the Supreme Court».
3 See, for example, the OFCOM Broadcasting Code at www.ofcom.org.uk/tv/ifi/codes/bcode.
4 For example, a homosexual kiss broadcast before 21.00 on the popular BBC hospital soap, «Casualty», was not held to be offensive by the UK regulatory authorities. However, a group of Romanian television regulators, when shown the relevant clip by the author, declared it to be the most disgusting thing they had seen.
5 Section 11 of the Communications Act 2003 states: «Duty to promote media literacy.
1) It shall be the duty of OFCOM to take such steps, and to enter into such arrangements, as appear to them calculated:
a) To bring about, or to encourage others to bring about, a better public understanding of the nature and characteristics of material published by means of the electronic media.
b) To bring about, or to encourage others to bring about, a better public awareness and understanding of the processes by which such material is selected, or made available, for publication by such means.
c) To bring about, or to encourage others to bring about, the development of a better public awareness of the available systems by which access to material published by means of the electronic media is or can be regulated.
d) To bring about, or to encourage others to bring about, the development of a better public awareness of the available systems by which persons to whom such material is made available may control what is received and of the uses to which such systems may be put.
e) To encourage the development and use of technologies and systems for regulating access to such material, and for facilitating control over what material is received, that are both effective and easy to use.
2) In this section, references to the publication of anything by means of the electronic media are references to its being:
a) Broadcast so as to be available for reception by members of the public or of a section of the public.
b) Distributed by means of an electronic communications network to members of the public or of a section of the public».