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This section is laid out as follows:

• Proposed Code section 1
• Background to section 1
• Proposed inclusions
• Proposed deletions
• Questions

Proposed Code, section 1, Protecting the Under Eighteens.

(section 319(2)(a) of the Act, TWF Directive Article 22)

Principles

To ensure that people under the age of eighteen are protected from:

• potential or actual moral, psychological or physical harm caused by content in programmes;
• potential or actual distress caused by content in programmes;
• potential or actual exploitation through participation or coverage in programmes;
• potential or actual harm through participation or coverage in programmes;
• material which might seriously impair the moral, psychological or physical development of children.

Rules

Scheduling and content information

1.1 Material that might seriously impair the moral psychological or physical development of children must not be broadcast.

Meaning of "children":

Children are people under the age of 15 years.

1.2 Material that is unsuitable for people under the age of eighteen must be appropriately scheduled. In particular, children must be protected by appropriate scheduling or technical devices from material that is likely to impair their moral, psychological or physical development. If such material is not encoded then a clear verbal warning must be given before the programme starts.

1.3 In scheduling content, broadcasters must take account of the likely number and age range of children present in the potential audience, bearing in mind school time, weekends and holidays. Television broadcasters must observe the watershed. Radio broadcasters must have particular regard to times when children are particularly likely to be listening.

Meaning of the "watershed":

The watershed only applies to television. It is the period which starts at 2100 and lasts until 0530. Material unsuitable for children should not, in general, be shown before 2100 or after 0530. On premium subscription services the watershed is at ? (please see linked questions at the end of this section)

Meaning of "when children are particularly likely to be listening":

This phrase applies to radio and sound services. It particularly refers to the school run and breakfast time, but might include other times.

1.4 Television broadcasters should ensure that the transition at the watershed to stronger material is not abrupt. Stronger, more adult material, should be scheduled well after 2100. Broadcasters must consider giving clear warnings if the material may be unsuitable for young persons.

Meaning of "young persons":

Young persons are those aged 15,16 and 17.

1.5 For television programmes broadcast before the watershed, clear information about content that is unsuitable for certain age ranges under the age of eighteen must be given to the audience.

1.6 For radio and sound services, broadcasters must consider giving clear verbal warnings about programme content that may be unsuitable for young persons when children are not particularly likely to be listening. Clear information must be given to the audience, when children are particularly likely to be listening, about content that is unsuitable for certain ages under the age of eighteen.

The coverage of sexual and other offences involving the under eighteens

1.7 Broadcasters must not identify people under the age of eighteen who are victims, witnesses or defendants in UK court proceedings involving sexual offences (unless the court rules otherwise). The word 'incest' must not be used where a person under the age of eighteen might be identified as the victim (the offence may be described as a serious sexual offence).

1.8 Particular care must be taken when reporting court proceedings involving sexual offences, that the relationship between the accused and the person under the age of eighteen is not implied, and cannot be inferred, from the material broadcast or taken in conjunction with other material published by the media.

1.9 When covering any pre-trial investigation into an alleged criminal offence in the UK, broadcasters should pay particular regard to the potentially vulnerable position of any person under the age of eighteen involved as a witness or victim, before broadcasting their name, address, identity of school or other educational establishment, place of work, or any still or moving picture of them. Particular justification is also required for the broadcast of such material related to the identity of any person under the age of eighteen who is involved in the defence as a defendant or potential defendant.

Smoking, alcohol, drug and solvent abuse

1.10 Drinking alcohol, smoking, solvent abuse, the use of illegal drugs and the abuse of drugs should not be featured in children's programmes unless there is a clear educational purpose.

1.11 Drinking alcohol, smoking, solvent abuse, the use of illegal drugs and the abuse of drugs should be avoided in other programmes broadcast before the watershed, or when children are particularly likely to be listening, unless there is an editorial justification.

Violence and dangerous behaviour

1.12 Material containing violence that has the potential to cause moral or psychological harm should not be broadcast before the watershed or when children are particularly likely to be listening.

1.13 Types of violence or violent behaviour, whether verbal or physical, that are easily imitable by children in a manner that is harmful and or dangerous, should not be broadcast before the watershed or when children are particularly likely to be listening, unless it is editorially justifiable. Such material should not be featured in children's programmes unless it serves a clear educational purpose.

1.14 Dangerous behaviour or its portrayal, that is likely to be easily imitable by children in a manner that is dangerous, should not be broadcast before the watershed, or when children are particularly likely to be listening, unless it is editorially justifiable. Such material should not be featured in children's programmes unless it serves a clear educational purpose.

1.15 Violence and violent behaviour (verbal or physical) should not be presented as a positive means to an end in programmes broadcast before the watershed, or when children are particularly likely to be listening, unless there is an editorial justification. Such material should not be featured in children's programmes unless it serves a clear educational purpose.

Offensive language

1.16 The most offensive language must not be broadcast before the watershed or when children are particularly likely to be listening.

1.17 Offensive language should not feature in children's programmes.

1.18 Less offensive language must not be broadcast before the watershed, or when children are particularly likely to be listening, unless it is justified by the context. Frequent use of such language must be avoided before the watershed.

Sex

1.19 Material of a sexual nature (verbal and/or visual) should be inexplicit and appropriately limited, if broadcast before the watershed or when children are particularly likely to be listening.

Nudity

1.20 Nudity before the watershed must be non-sexual and must be justified by the context.

Exorcism, the Occult and the Paranormal

1.21 Demonstrations of exorcism and the occult must not be transmitted before the watershed, or when children are particularly likely to be listening.

Please see the RIA, in section 14 of this consultation, for detailed discussion on options regarding the scheduling of programmes regarding the paranormal. A related question is asked at the end of this section.

Premium subscription services and pay-per-view channels

Please see the RIA, in section 14 of this consultation, for detailed discussion on options regarding premium subscription services and pay-per-view (PPV) channels. Related questions are asked at the end of this section.

The participation of people under the age of eighteen in programmes

1.22 People under the age of eighteen must not be harmed or put in moral, psychological or physical danger in the making of programmes or by the broadcast of programmes.

1.23 People under the age of eighteen must not be caused unjustifiable distress or anxiety by their participation in programmes or the broadcast of those programmes.

1.24 The exploitation of persons under the age of eighteen is unacceptable, irrespective of any consent given by persons under the age of eighteen or by a parent, guardian or other person over the age of eighteen in loco parentis.

1.25 Prizes offered in programmes to children must be appropriate to the age range of both the target audience and participants.

Background to proposed Code section 1 - Protecting the Under Eighteens

1. The principles and rules in this section of the Code are drawn from Ofcom's responsibilities under two pieces of legislation: the Act and TWF Directive Article 22. (You can find these in annex 4 and 5 of this consultation).

2. The specific obligation set out section 319(2)(a) in the Act, to protect persons under the age of eighteen is new. The 1990 Act contained no such obligation. However it did require the ITC to have "special regard to programmes included in licensed services in circumstances such that large numbers of children and young persons may be expected to be watching the programmes" and it placed an equivalent obligation upon the Radio Authority with regards to radio.

3. In drawing up their Codes the RA and ITC placed a high priority on the protection of children and young people. Ofcom does not believe that there is a compelling need to change the substance of the rules relating to the protection of the under eighteens that currently exist.

4. However, as the legacy Codes tend to combine provisions for the protection of children with other matters (such as taste and decency). Ofcom believes it is appropriate to follow the standard objectives of the Act and therefore has drafted a specific section in the new Code to deal with the protection of the under eighteens. Given this is the first standard objective named in the Act this section also opens the Code as an indication of the importance Parliament, and Ofcom, place on the protection of the under eighteens.

5. Whilst Ofcom recognises the obligation to protect persons under the age of eighteen, it does not consider that all age groups within this range necessarily require identical forms of protection at all times. The rules have been drafted with this in mind. For example, the care that broadcasters must take in protecting the average seventeen year old audience member will be of a different nature to that required to protect the average eight year old audience member.

Proposed inclusions

Principles

6. The principles are new and are intended to clearly set out the rationale behind Ofcom's rules in this area, as a result of Ofcom's obligations under the Act and the TWF Directive.

Rules

7. All the rules as drafted are intended to protect the under eighteens as required under the Act and by the TWF Directive. They are newly worded although in most cases they are currently covered by the existing Codes. Where Ofcom believes there has been a substantive change, this is highlighted below.

Scheduling and content information

8. Rule 1.1 reflects Article 22(1) of the TWF Directive. It sets a necessary standard which should be applied to protect the under eighteens across all service providers regardless of whether the TWF Directive applies to that service or not. Ofcom does not consider that any broadcaster regulated by Ofcom would find this regulation disproportionate.

9. Rule 1.2 maintains broadcasters' existing responsibility to schedule their material appropriately. Ofcom recognises that, in an open and democratic society, citizen-consumers have the right to listen to, and watch, complex and challenging broadcast material. However, Ofcom also recognises that sometimes such material can be problematic, particularly with regard to younger members of society. Therefore a necessary balance must be struck between the wider needs of society and the need to protect children. It is Ofcom's view that the specific rule on appropriate scheduling, and the consequential rules that follow, help to provide this balance.

10. The second sentence of rule 1.2 reflects Article 22(2) and (3) of the TWF Directive. It sets a necessary standard which should be applied to protect the under eighteens across all service providers regardless of whether the TWF Directive applies to that service or not. Ofcom does not consider that any broadcaster regulated by Ofcom would find the addition of this regulation disproportionate.

11. Rule 1.3 maintains the obligation on television broadcasters to respect the watershed and take account of factors such as school holidays that might increase the number of children present in a given audience. Ofcom believes it important to maintain the principle of the television watershed: that is the transition point (at 2100 for most channels) whereby viewers may expect that material could be of a more adult nature. (The RIA in section 14 discusses rules surrounding the watershed on premium subscription services. There are related questions at the end of this section.)

12. The watershed has not been defined in terms of age before. Separately, under the ITC Code, children were defined as those aged 15 and under. The other relevant Codes did not define a specific age. There is no single accepted definition of children either in legislation or more generally.

13. Ofcom proposes that it would be more appropriate to define children as those under 15. This will maintain consistency with the existing ITC guidelines (whether they are removed or not) with regards to film classification and scheduling, whereby as a general guide '15' rated films may be broadcast from 2100. Using 2100 as a starting time for 15 plus material is well established and understood by television broadcasters.

14. However, Ofcom does recognise that children and young people, especially in their teenage years, vary widely in maturity and sophistication. Whilst Ofcom believes it is appropriate to define 'children' for the purposes of the Code as those aged under 15, respondents should take note of the rules relating to scheduling and warnings with regard to young people who may stay up after the watershed.

15. Audience expectations regarding radio are different to television. With radio programming, the focus has tended to be on those times when children are particularly likely to be listening, e.g. during the 'school run' or breakfast shows. Because of these existing audience expectations, Ofcom proposes that it would be appropriate to keep the same framework in place for radio.

16. Rule 1.4 is proposed in recognition of the fact that, whilst the watershed is well recognised as a delineating marker beyond which more adult material may be shown, an abrupt transition at 2100 to material with a strong adult theme is potentially harmful. Therefore rule 1.3 takes account of the fact that there may be programmes that overlap the watershed which some children may be allowed to stay up to watch the ending of. There is clearly material that most people would regard as problematic for all children and it is this material that should be broadcast significantly later in the schedule. In those cases consideration should be given to young people who may be in the audience and clear warnings given, if necessary, which will enable them to decide whether to continue to watch.

17. Rule 1.5 is drafted in recognition of the fact that, even with appropriate scheduling, some additional information before the watershed may be necessary in order to protect the under eighteens.

18. Rule 1.6 addresses the same issues as 1.4 and 1.5 with regards to radio (where there is no watershed but where broadcasters must take account of times when children are particularly likely to be listening).

19. We draw a distinction between information generally and more specific warnings. Information may be appropriate at any time of the day and is in line with a trend towards an increased use of labelling to aid viewers make informed choices. For example, a nature programme transmitted in the early evening may show scenes of animals preying on one another that a very young child might find upsetting. However if a warning is needed the material should in all probability be scheduled after the watershed. Exceptionally News may sometimes require a warning pre watershed.

Coverage of sexual and other offences involving the under eighteens

20. The rules as drafted are based on the existing rules as previously agreed with broadcasters by the legacy regulators.

21. Rules 1.7 and 1.8 specifically address the coverage of sexual offences and are largely unchanged. Rule 1.8 seeks to address the potential for the 'jigsaw' effect.

22. The 'jigsaw' effect is when a person's identity may be revealed through different parts of the media reporting different aspects of a crime that, taken individually do not reveal the victim's identity, but taken together might well do so. For example, one news source might name a particular person in a particular locality and report that he has been charged with a 'serious' sexual offence, another news source might report that a 'man' in that locality has been charged with offences against children in his care - taken together the two pieces of news might enable someone to identify the child or children who are the alleged victims of a sexual offence.

23. Rule 1.9 is concerned with pre-trial coverage of criminal cases in general (not just sexual offences) and is intended to protect the potentially vulnerable position of persons under the age of eighteen who may be involved as victims, witnesses or as defendants. Please note that the courts have the power to impose or lift reporting restrictions where appropriate and Ofcom will not apply regulation that is more restrictive than the courts.

24. Parliament is sufficiently concerned by both of these matters to have passed appropriate amending legislation - although the relevant provisions have not been brought into force. The Secretary of State has preferred, instead, to leave this to regulators and the media itself. Consequently this rule has been included and, if properly applied, there will be no need for legislation to be enacted.

Rules regarding smoking, alcohol, drug and solvent abuse

25. The issues and concerns surrounding smoking, alcohol, the misuse and abuse of drugs (both legal and illegal) and solvent abuse are varied and complex. They are all a feature of modern society and clearly a legitimate component or theme for programming. However, given the potential for harm, rules are proposed that provide a clear framework for the way these substances are included in programming where children are concerned.

26. Ofcom has drawn on the existing Codes to set the rules in this area. In particular Ofcom does not believe the inclusion of these substances in programmes for children is acceptable without a clear educational purpose. However, the inclusion of these substances in more general programming before the watershed is acceptable providing there is editorial justification.

Rules regarding violence and dangerous behaviour

Violence

27. Ofcom understands that many citizen-consumers are very concerned about the potential impact of violence within broadcast material upon society - in particular on children and younger audience members.

28. The existing Codes also reflected these concerns and Ofcom's new rules have sought to specify these protections by restricting more violent material until after the watershed and requiring that less violent material before the watershed is editorially justified.

Offensive language

29. These rules are based on the existing rules. Ofcom recognises that offensive language is also a feature of modern society and may be legitimately used in broadcasting. However, offensive language raises clear concerns about harm to children and offence in general. There is a concern that children may imitate offensive language or be upset or offended to hear offensive language that their parents or guardians or other adults have told them is wrong.

30. The prohibition on the most offensive language before the watershed (rule 1.16) serves two interlinked purposes; it helps to protect children from potentially distressing or harmful material when they may not be mature enough to deal with it and also protects all viewers more generally from offence. Ofcom believes this is consistent with the existing Code provisions. Its primary purpose however is to protect children.

31. The prohibition on offensive language in children's programmes (rule 1.16) ensures that there will always be programming that parents can be certain will not contain offensive language.

32. Rule 1.18 limits the amount of less offensive language shown before the watershed or when children may be particularly likely to be listening. By ensuring that such material is in context and not frequently used, Ofcom believes children are protected from the potentially harmful effects of repeated use of offensive language and, as with the general prohibition on more offensive language before the watershed, audience members more generally are protected from offence.

Sex

33. This rule is based on the existing rules. Rule 1.19 limits the type of sexual material that may be broadcast before the watershed or when children might be particularly likely to be listening. More explicit material may be acceptable in an educational programme. Material of a more explicit nature after the watershed is subject to the more general rules on offence and appropriate scheduling.

Nudity

34. These rules are based on the existing rules. We believe that nudity in a non-sexual context before the watershed is not problematic and will not harm persons under the age of eighteen providing it is in a relevant context and not gratuitous.

Exorcism, the occult and the paranormal

35. The proposed rules continue to apply protection to children (using the precautionary principle) and also take into account the differing views expressed in the ITC research Beyond Entertainment (2001) regarding the potential for harm of negative practices such as the occult and other practices. This research is explained in greater detail in the background to the next section regarding harm and offence.

36. The scheduling of programmes on the paranormal is discussed in detail in the RIA in section 14 of this consultation. A relevant question is included at the end of this section.

Premium subscription services and pay-per-view channels

37. The RIA in section 14 discusses rules surrounding PPV and premium subscription services. There are related questions at the end of this section.

Participation

38. The rules as drafted are based on the existing rules and are intended to protect persons under the age of eighteen who take part in programmes.

39. Rule 1.22 is intended to protect persons under the age of eighteen from harm or danger in the making, or broadcast of programmes.

40. Similarly, rule 1.23 seeks to protect persons under the age of eighteen who participate in programmes from unjustifiable distress. However, Ofcom does recognise that there may, on occasion, be a legitimate need to make or broadcast programmes that may distress those persons under the age of eighteen involved with the making of a programme. It is unjustified distress that is unacceptable.

41. Rule 1.24 reflects concerns raised by stakeholders about the participation of persons under the age of eighteen in programmes. There are certain circumstances, where the nature of the participation is clearly so inappropriate despite consent having been given by a parent, parents, guardian or person in loco parentis that exploitation has occurred.

42. With regards to rule 1.25 Ofcom believes it is important that prizes in programmes for children are appropriate to the age range of the audience.

43. Where prizes are of a very high value there is a risk that child participants will be under excessive pressure to perform. The existing ITC Programme Code expressly forbids the awarding of cash prizes in children's television programmes. However, there is no such rule for radio programming. Ofcom believes there may be no regulatory reason to have different rules for television and radio and therefore seeks views on whether cash prizes should be expressly forbidden for television.

44. Ofcom understands that citizen-consumers may have a number of concerns about the use of cash prizes in children's competitions.

45. Such prizes might be regarded as an inappropriate way for broadcasters to 'buy' children's audiences. Cash prizes may result in undue pressure (from e.g. family members) upon children to perform well. Parents may also be concerned that children may receive such cash prizes without them (the parents) being aware of it. Finally, parents may be concerned about the potentially negative effect of cash prizes about children's perceptions of the value and role of money and the way in which such prizes might simply be regarded as appealing to greed.

46. In contrast, Ofcom also recognises that it would be difficult to consider that, e.g. a £10 cash prize, was potentially more harmful then a £150 games console.

47. Ofcom therefore welcomes respondents' responses to the question at the end of this section on whether cash prizes should be specifically forbidden.

Proposed deletions

49. Paragraph 85 of the BSC Code on Standards contained an overt prohibition on 'explicit portrayals of sexual acts between adults and children'. Similarly, rule 1.4c in the RA's Programme Code, has a prohibition on 'portrayal or description of sexual activity between humans and animals or between adults and children'.

50. Ofcom believes that such explicit rules are unnecessary in the light of proposed general rules relating to the incitement of crime (section 6 of this consultation), offence (section 5 of this consultation) and the rule on material of a sexual nature (proposed rule 1.19).

51. The RA Programme Code had a specific prohibition in rule 1.3 on blasphemy in children's programmes or when young listeners are particularly likely to be listening.

52. Ofcom's view is that such a specific prohibition is not necessary to protect younger members of the audience. This is because the new rules refer to 'offensive' (rather then 'bad') language, and so include blasphemy.

53. Section 1.4 of the ITC Programme Code contains specific rules regarding the scheduling of films classified by the British Board of Film Classification (BBFC).

54. The rules broadly require that normally no '12' rated film should start before 2000, that normally no '15' rated film should start before 2100 (or 2000 on premium rated services), and that no '18' rated films should start before 2200 on any service.

55. The ITC rules are qualified by saying that the BBFC classifications should be used as a "guide to scheduling" and also by the insertion of the word "normally" with regard to '12' and '15' films and by allowing the rule regarding '18' films to be relaxed if the film was made more than ten years ago. There is a balancing warning that some '15' films may not even be suitable for 2000 because of their content

56. The ITC Code creates an assumption in scheduling by rating that, some argue, is too prescriptive in its approach. At the same time it may be confusing because of the possible exemptions which effectively recognise that these strict rules are not easy to apply.

57. Broadcasters make numerous scheduling and content decisions about the material they transmit. Films are just one of many genres they handle daily.

58. Ofcom proposes that this rule be omitted because the scheduling rules contained at the start of this section adequately protect the under eighteens.

Questions

Question 4a:
Are the principles, rules and meanings necessary, consistent, proportionate and achievable? If not, can the wording be improved and if so how?

Question 4b:
Are there any principles, rules or meaning we have not put here which would achieve the intentions of the Communications Act and other applicable legislation and be necessary, consistent, proportionate and achievable?

Question 4c:
Are the proposed definitions of children and young persons appropriate?

Question 4d:
Do we need rules regarding violence and dangerous behaviour, smoking, drug taking etc as proposed in the Code or are such matters already covered by other rules?

Question 4e:
Which of the options described in the RIA regarding the watershed on premium subscription services is the best option and why? (If a new place is proposed for the watershed, what is it, and why?) What technical and other protections can broadcasters and platform operators put in place to protect children?

Question 4f:
Which of the options described in the RIA on the scheduling of programmes regarding the paranormal is the best option and why?

Question 4g:
Should cash prizes be specifically forbidden in children's programmes?

Question 4h:
Should there be rules linking the scheduling of films to the BBFC classifications?

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