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This section is laid out as follows:

• Proposed Code section 2
• Background to proposed Code section 2
• Proposed inclusions
• Proposed deletions
• Questions

Proposed Code, section 2, Harm and Offence

(section 319(2)(f) and (l) of the Act)

The rules in this section are to prevent harm and offence, however, they also have the additional effect of protecting people under the age of eighteen.

Principle

To ensure that broadcasters provide adequate protection for viewers and listeners from the inclusion of harmful or offensive material, judged against generally accepted standards.

Rules

2.1 Broadcasters must provide adequate protection for viewers and listeners from the inclusion of harmful or offensive material in television or radio programmes judged against generally accepted standards.

2.2 Factual programmes must respect the truth.

2.3 The use of potentially offensive language and material - in particular, the inclusion of scenes of violence or sex, or scenes of humiliation, distress or the use of discriminatory treatment or language or scenes of graphic sexual violence - must be justified by the context, and information included where it might assist in preventing offence.

Meaning of "context":

Context is used to denote, among other things, the matters referred to in section 319 (4)(a),(b),(c) and (d) of the Communications Act which can be found in the introduction to this Code. Those matters are: the degree of harm or offence caused by the inclusion of a particular sort of material, the likely size and composition of the audience, the likely expectation of the audience, the extent to which content can be brought to the attention of the audience e.g. by the giving of information, and the effect of the material on somebody who views or hears it by chance. Context also includes the service, the time of transmission, what other programmes are scheduled before and after the programme concerned, whether the programme is a one off or part of a series as well as the editorial content of the programme. This list is not exhaustive. Context will also be applied to harmful and offensive material in 2.1.

'Adult' material on premium subscription services
Please see the RIA, in section 14 of this consultation, for detailed discussion of options regarding 'Adult' material on premium subscription services. Related questions are asked at the end of this section.

2.4 Programmes must avoid anything that individually, and/or taken as a whole and in context, is likely to encourage violent, dangerous or seriously antisocial behaviour.

2.5 The means or methods of suicide and self harm must not be included in programmes except where the context, scheduling and likely audience can justify them.

2.6 Demonstrations of exorcism, the occult, the paranormal, divination and related practices must be treated with due objectivity. Entertainment programmes that contain such demonstrations must be clearly labelled as such for the audience. No potentially life changing advice may be given. (Religious programmes are exempted from the rule about life-changing advice but must, in any event, comply with the provisions in the section regarding religious programmes in this Code.) (Please also note the scheduling restrictions contained in section 1 of this Code.) Films, dramas and fiction generally are not bound by this rule.

Meaning of "life-changing":

Life-changing advice includes advice about health, finances, employment, relationships etc.

2.7 Broadcasters must prevent hypnosis being induced in susceptible viewers and listeners.

'R18'- rated films and programmes and R18 standard
Please see the RIA, in section 14 of this consultation, for detailed discussion on options regarding R18 and R18 standard materials. Linked questions are asked at the end of this section.

2.8 No version of a film or programme refused certification by the British Board of Film Classification (BBFC) may be broadcast.

2.9 Programmes must not use techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred.

2.10 Television broadcasters must minimise the risk to viewers who have photosensitive epilepsy. Please see appendix 3 of this Code (this can be found in Annex 8 to this consultation).

Background to proposed Code section 2 - Harm and Offence

1. The principle and rules in this section derive from sections 319(2)(f), (l) and 319(4)(a), (b), (c), (d) and (e) of the Act and Article 22 of the TWF Directive. These can be found in annexes 4 and 5 of this consultation.

2. The 1990 Broadcasting Act ( the 1990 Act) required that "[nothing should be included which] offends against good taste and decency" or "[is likely to be] offensive to public feeling".

3. The wording in the Act is different. It deals with the concept of harm as well as offence, not simply offence. It does not require, as the previous act, that 'nothing' should be included which offends but instead requires 'adequate protection' from the inclusion of harmful and offensive material. 'Good taste and decency' and 'public feeling' is now replaced by the concept of 'generally accepted standards'. Also section 319(4)(a) of the Act talks about the degree of harm or offence likely to be caused by the inclusion of any particular sort of material.

4. Detailed prescriptive rules cannot anticipate every situation. Moreover social mores and sensitivities change, both over time and in response to events day by day; and television and radio must have wide freedom to address any subject.

5. The rules in this section have, on the whole, been drawn widely to stand the test of time and also to allow broadcasters, the audience and Ofcom to interpret what is meant by harm and offence as it applies in every case.

6. The legacy Code sections that this proposed section would replace are found in section 1 and section 5 of the ITC Programme Code; section 1 of the RA Programme Code; and the BSC Code on Standards.

Proposed inclusions

7. The principle is new. It is based on the requirements of the Act.

8. Rule 2.1 is based on the Act.

9. Rule 2.2 which, requires the truth to be respected in factual programmes, is a minimum standard. Ofcom believes this should be applied to avoid giving offence and possibly causing harm. While respect for the truth is specifically set out as a rule in this section in recognition of its potential relevance to the harm and offence standards objectives, the requirement that broadcasters comply with the law, respect the truth and respect human dignity are minimum standards, set in accordance with Ofcom's duties under the Act. They are included in the introduction to the Code and relate to each standards objective as relevant depending on the nature of the broadcast.

10. Rule 2.3 is effectively a new rule although it picks up on many areas contained in the legacy Codes. It points up some of the key areas where audiences have found offence in the past including graphic sexual violence.

11. Effectively, there is no ban on any type of material as long as it is within the law. (R18 and films refused a BBFC certificate are discussed in the RIA and later in this section respectively.) Material that has the potential to offend may be used. But it must be justified by context, and information used where it may help prevent offence. This is a rule which has been set with the matters raised in 319(4) very much in mind. The meaning of context which follows includes the matters contained in section 319(4) of the Communications Act and indicates that other matters may be added to that list depending on the circumstances of each programme. This is a rule which must be interpreted by each broadcaster.

12. Rule 2.4 is new. It addresses the concern that some programmes may e.g. by the tone of the commentary effectively condone or glorify violent or dangerous or seriously anti-social behaviour so that it encourages viewers or listeners to copy the behaviour or be supportive of such behaviour.

13. Rule 2.5 covers a continued concern about the impact of real or portrayed suicide, and self harm on those whose minds may be disturbed. Whilst it is always difficult to prove causality a study found that portrayal of self poisoning in a popular television drama (Casualty) was associated with a short lived increase in presentation of self poisoning patients to general hospitals. (Hawton et al 1999, British Medical Journal). Another study, The Werther effect after television films (Schmidtke A, Hafner H, Psychological Medicine 1988) studied the effect of a twice-broadcast (1981, 1982) six-episode weekly serial showing the railway suicide of a 19-year-old male student. Over extended periods (up to 70 days after the first episode), the number of railway suicides increased.

14. Rule 2.6 has a complicated background. The ITC, in the autumn of 2003, consulted on the section of the Programme Code that dealt with these matters and updated its Code. This proposed rule changes this regulation yet again and brings together radio and television regulation in this area.

15. Specific regulation has been included on this matter as a result of research undertaken by the ITC with a representative sample of 3000 viewers which was published in 2001 (Beyond Entertainment). It showed that occult practices, namely Satanism, black magic, ouija and voodoo, were viewed as having negative intent. They were considered as risky and, therefore, dangerous, whether people believed in such phenomena or not, as the intention behind such practice was believed to be about exerting influence. Those considering such phenomena as harmful ranged from 91% for Satanism to 78% for spells. However purportedly contacting the 'known' dead was border line. 54% of viewers thought clairaudience was harmful and 44% thought clairvoyance was harmful.

16. Where viewers perceive material as harmful there is a possibility that they will be offended by stumbling across it accidentally.

17. Substantive evidence of actual harm was not received by the ITC during its consultation on these matters in autumn 2003 although concern was expressed by diverse groups and individuals about such programming.

18. This proposed rule requires that entertainment shows be clearly labelled as such, and that no potentially life changing advice should be given. (Examples of what may be considered as life-changing are also given). These elements of the legacy Codes (although not the detailed requirements of the ITC Programme Code) would be retained as proportionate, necessary and targeted regulation. The requirement that factual shows look at such matters only in the context of a legitimate investigation would be removed and replaced by a requirement for due objectivity in both entertainment and factual programmes. The stronger the material, the more likely offence or harm could be caused, and, therefore, the greater the objectivity that would be needed. Please note that under the Fraudulent Mediums Act 1951, a person who is acting for a reward and who, with intent to deceive, purports to act as a spiritualistic medium or to exercise any powers of telepathy, clairvoyance or other similar powers, or while doing so uses any fraudulent device, is guilty of an offence, unless it is done solely for the purpose of entertainment.

19. These changes are in line with the requirements of 319(4) of the Act which require that Ofcom, in setting standards, has regard to matters such as the likely size and composition of the audience and likely audience expectation. The nature of the objectivity required would change according to the likely audience and the information that could be given to adjust an audience's expectations and understanding of the programme and its parameters.

20. Drama and fiction and films are excluded from this rule although, clearly, broadcasters may want to consider the potential for offence and/or harm and the need for information or warning when scheduling such material.

21. Scheduling advice on this matter is now contained in section 1 of the proposed Code (protecting the under eighteens). Further information can be found in the RIA, section 14. A question is asked regarding the scheduling at the end of section 4 of this consultation.

22. Rule 2.7, regarding hypnosis, has been brought across from the legacy Codes as a precautionary rule to prevent harm. Previous Codes referred to the Hypnotism Act of 1952. However Ofcom is not aware of evidence that hypnosis can be induced by radio and television broadcasts. Ofcom would welcome evidence and opinions on this matter and a question has been asked at the end of this section.

23. The arguments regarding R18s are covered in section 14 of this consultation, the RIA. Questions are asked regarding R18 and R18 standard material at the end of this section.

24. Rule 2.8 requires that films that have been refused a BBFC classification must not be broadcast. The case for such a prohibition is considered by some as obvious. In certain cases films, videos and DVDs contain material such as violent pornography which is not judged suitable for commercial distribution in this country. To remove this rule would mean that material unable to gain a BBFC certificate could be available on television. (It should be noted that rejections can also be for legal reasons which would equally apply to broadcasters.) Further it may be a matter of concern if broadcasters were perceived to apply an approach which undermined the intention of Parliament in passing the Video Recordings Act 1984 (VRA).

25. However some argue that in principle it is wrong for Ofcom to rely on the judgements of another regulator. Furthermore there is a difference between material rejected under the current guidelines (currently under one a year) and 'historic' rejects. 'Historic' rejects refused BBFC classification may, over time, or with cuts be suitable for broadcast. However broadcasters argue that a television broadcaster would be faced with the unnecessary expense of reclassifying the film in order to comply with this rule whereas the general rules on offence in this section should cover it adequately. A question on this rule has been included at the end of this section.

26. Rule 2.9 is a direct reference back to the Act. It more or less repeats unaltered the provisions of the ITC and RA Codes.

27. Rule 2.10 derives from work done by the ITC and which is informed by considerable technical background. Ofcom understands that views differ on the detail of the limits to be applied to flashing images, rapid cutting and the like. The former ITC guidance has been attached as an appendix to the Code in order for it to be binding. It is in annex 8 of this consultation. Evidence based comment upon it would be welcome. It is there to protect viewers, particularly younger viewers from physical harm. However if it can be demonstrated that a lower level of technical intervention will actually achieve the same level of protection Ofcom would of course be required to lift or alter unnecessary regulation.

Proposed deletions

28. As part of Ofcom's move to simplify and condense the Code, considerable discussion of various topics has been omitted, particularly under offence. The aim is to cover these subjects in guidance.

29. In the legacy Codes protection of children is interspersed with matters of harm and offence for adults. The regulation regarding the protection of under eighteens has largely been moved into section 1 of the proposed Code - a section that did not previously exist.

Questions

Question 5a:
Are the principles, rules and meanings necessary, consistent, proportionate and achievable? If not, can the wording be improved and if so how?

Question 5b:
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 5c:
Should a rule on hypnosis be included and if so what evidence of harm or potential harm is there regarding the use of hypnosis on television or radio audiences?

Question 5d:
Is the inclusion of R18 and R18 standard material compatible with the TWF Directive which requires that nothing is included in licence services which might seriously impair the physical, mental or moral development of minors?

Question 5e:
If the answer to 5d is yes, then are there technical and other protections that broadcasters and platform operators can put in place to protect the under eighteens, who should not, and adults, who may not wish to, access R18 and R18 standard material? (the Act section 319(2)(a)(f) and 319(4))

Question 5f:
Which of the options described in the RIA regarding R18s, and R18 standard material is the best option, and why?

Question 5g:
Should the restrictions in place regarding transmitting 'adult' sex material on certain premium subscription services, PPV and PPN services be changed, and if so what restrictions should be in place, and on which services?

Question 5h:
Should there be a prohibition on the transmission of films, videos and DVDs refused a BBFC certificate. If not should there be any rule and if so what rule?

Question 5i:
Can a lesser level of technical intervention achieve the same protection for those with photosensitive epilepsy?

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