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27|06|07

Westminster Media Forum - Participation TV

Tim Suter, Partner, Content and Standards

Let me start by commending the Westminster Media Forum for their foresight in arranging this seminar for today – timing it to coincide with a moment when so many politicians are about to have more time to spend looking at day-time television – even late night television – and may well be wondering what goes on there, and what they’ll be able to spend their time doing in future…

So, in addition to offering a bit of therapy for politicians with more time on their hands, I’d like to do three things this morning.

First, I’d like to give a bit of history and context to the issue.

Second, I’d like to pull out what I see as the main consequences and lessons that we have learnt over the last few months.

And third, I’d like briefly to look to the future, and place Participation TV in its wider context.

But first, we need to get some definitions clear in our heads.

Participation TV is potentially a very wide category – broadcasting has never been an entirely passive medium. But we probably need to differentiate between specific types of channel and blocks of content whose sole aim is in interacting with the audience, and the use of interactivity in more general programming.

Common to both, of course, is the capacity for broadcasters to use participation not only to drive editorial elements of the programme but also to drive sometimes significant revenue streams. The highly successful Premium Rate Services industry has been able to add a significant new income line to broadcaster’s top line which, as other forms of commercial revenue become strained has been very welcome.

So for us, Participation TV has revolved around three genres:

• Quiz TV, by which we have meant both discrete channels as well as programme blocks that consist entirely of quiz programmes with the participants being essential the viewing public at home, interacting usually via PRS;
• Adult chat, or Babe channels – where the viewer interacts with a progressively less dressed girl in a studio, by phoning or texting a prominently displayed premium rate line;
• and psychic services, which operate in a very similar way.

Much of the recent publicity and the highest profile cases have not, in fact been derived from either the adult or the psychic channels – and some of the individual cases have been in more general programming. So what we need to understand is the central truth that has emerged in the last couple of years, and that is common to all types of paid for participation in programmes: that television has itself become a significant purveyor of consumer services. The question is whether it has also adopted the mind-set and approach that is necessary as a result.

History

For me, viewed from an Ofcom perspective, the story of PTV went in three distinct, though somewhat overlapping phases.

First was what you might call the “theoretical” phase – when we created the Ofcom code and specifically included within it a couple of rules that bore upon the conduct of competitions and compliance with the relevant Icstis code when using PRS. I recall at the time being told, very clearly and forcefully, that this was unnecessary since it was demonstrably not in the interests of broadcasters to run unfair competitions. I’m very glad indeed that we stuck to our guns and included those rules, because they are what we are using now to judge what have emerged as serious breaches of consumer trust and broadcasting ethics.

The second phase was what you might describe as the “technical” phase – when we began to confront the challenge posed by the increasing consumer focus of some kinds of participation TV, and in particular, to consider the extent to which it was sufficiently covered by a broadcasting code that was rightly focused on issues of harm and offence deriving from what is actually broadcast, rather than the more sharply focused consumer protection issues that are present, for instance, in the advertising code. This is of particular relevance to the adult and psychic services which operate under editorial licences but which are clearly related to more conventional teleshopping services. We published a discussion document setting out the issues as we saw them at the end of last year: a consultation will follow shortly.

During this phase, alongside the regulatory architecture questions that we were grappling with, there was a growing concern about the way in which some quizzes were actually being run. The CMS committee played a vital role here in its inquiry, which turned the spotlight on some of the more opaque practices: lack of transparency about odds, the possibilities of racking up large phone bills – and the impenetrability of some of the questions. These were difficult, but by no means impossible questions for Icstis and ourselves to cope with: Icstis revised their code to tighten the rules around transparency and disclosure, which was where the majority of concern lay. Ofcom continued to challenge, and find against, some of the loopier quiz questions – rawlplugs spring to mind.

And then, in the third phase, the dam broke, and the PSBs arrived in the story. Richard and Judy, Brain Teaser, GMTV, Blue Peter. Some of those investigations are completed, some are still underway – so I won’t comment on them in detail. Crucially, though, the issues were quite different from those that we had already been dealing with. These were not instances of impossible questions or unknowable odds. Nothing that has turned out to be problematic would have been visible to the viewer at home – or even to the luckless person monitoring the output. These problems were buried right deep in the heart of the process. And that is why they were so important to bring to light and deal with.

Consequences and lessons

Which brings us to today, and the lessons we should learn.

I think there are five. Two for the regulators, and three for the broadcasters. I’ll do the regulators first.

Lesson 1: the three “C’s”: clarity, co-ordination and consistency.

Richard Ayre, as you know, has been inquiring into the issues surrounding the use of PRS in quiz programmes and although his report is yet to be published, I have no doubt that one of the things he will reflect upon is the need for clarity and co-ordination between the regulators involved – in the majority of cases, Icstis and ourselves, but increasingly the gambling commission as well – and assuming we are going to see gambling teleshopping channels in the autumn when the government lifts the ban on advertising gambling on television, it will be the ASA as well.

Each of us has a different and important job to do, but the CMS Select Committee was not alone in suggesting that the overlaps might lead to confusion.

We have good day to day working with Icstis, and are further developing our processes for deciding who should take the lead on different cases – inevitably, since our rules bite on different people: Icstis catches the service provider, we bite on the broadcaster. But we will need to rise to the challenge of demonstrating how well we can work together and how the framework we operate delivers real protection to consumers.

Lesson 2: the process is the product.

The focus of broadcasting regulation, quite rightly, is in the material that is broadcast. Freedom of expression lies at the heart of our code, and anything we do to limit that freedom of expression should be only very carefully done, in response to real justification. That justification is set for us, by statute, as issues of harm and offence. Now we are all feeling our way here, but the harm that seems to have been intended in the law is rather different from the sort of consumer harm that may accrue as a result of sharp practice in operating essentially consumer services.

What is going wrong is often invisible to the viewer, and is the result of processes which are at best flawed and at worst misleading. But as content regulators we have far less purchase on process, much more on the actual material broadcast.

This is a real challenge for the future. It is something that parliament should look at carefully when it next considers the framework for content regulation.

Those are, as I see it, the key lessons for the regulators. What about the broadcasters? Well, I think there are three absolutely critical lessons.

Lesson #1: the audience are consumers too

This seems to me to lie absolutely at the heart of the problems we have seen. It seems to me axiomatic that only if you have a view of the audience as an undifferentiated passive group of people can you be so cavalier with their money. The moment you begin to think of each one of them as an individual, each one of them as someone who is deliberately choosing to spend their money directly with you, each one of them as somebody who has absolutely the same rights and protection as every other participant – from that moment, it is impossible to think that it is acceptable to deprive them of their opportunity to win.

Of course there are technical reasons why things go wrong – and these must inevitably have been compounded by the sheer volume of people involved in some of these programmes – that after all was one of the key elements of the PSB programmes: these were significant shows attracting large audiences. The question must inevitably be about the kind of planning and preparation involved in putting these programmes together. While it might have been adequate to deal with an “ordinary” programme, was it adequate to deliver the protection for individual paying customers? The answer, in some cases, was palpably “no”: and I suspect the reason is that they were not envisaged, by the broadcaster, as individual consumers.

Well, they should have been, and they will be in future.

Lesson #2: the show does not always have to go on

Heresy, I know, for anyone who has worked in live programmes to say such a thing. But live programming, let’s face it, has bred a sort of fighter pilot mentality about mishap: war stories traded in the club or the pub, scrapes avoided, disasters overcome, the show always kept on the road, sometimes by the thinnest of threads. And that mentality has not served consumers well in these recent cases. It is linked, of course, to the previous lesson: the show is kept afloat for the benefit of the viewing public at home, for whom the show going on is paramount. But if the consequence of the show going on is that consumers are deprived of the chance to win or participate fairly – without their knowledge or consent – then something has gone badly wrong.

And that is significant, of course, because it cuts to the heart of one of the central tenets of broadcasting practice. And because, equally, the attraction of many of these shows is precisely their immediacy –the excitement generated by live programming: phone now, vote now, this is your chance to win – and so on.

The liveness is the point – so it mustn’t also be the problem.

And finally, lesson #3: the buck stops with the broadcaster

One of the features of participation TV is that there are so many people involved in it. Programmes using PRS are typically involving a broadcaster, a producer, a service provider, a network – and there could be more. Of all of them the person with perhaps least day to day responsibility for what is actually going on is the broadcaster: they commission and pay for the show, but they don’t actually make it. Although they will always benefit from any revenue stream and may even be responsible for some of the contracts involved down the chain, there’s an equally strong likelihood that those contracts will have been individually struck.

But the broadcaster is the person responsible for the overall programme – it is part of their licence condition that they should comply with the broadcasting code, which requires them to ensure that competitions are run fairly.

I don’t doubt that this is complicated - indeed, it seems to me that the problem for broadcasters is exactly the same as the one I called out for regulators: the fact that the process is the product. It isn’t just what ends up on the screen. It is also about how it got there. And that is what broadcasters need to be particularly concerned about.

The future

And so, to conclude with a few thoughts about the future.

We yesterday published our findings about Brain Teaser. There are more findings to come, more cases to be dealt with. But the flood of complaints has slowed significantly as the number of quiz channels and dedicated blocks of quiz programmes has sharply reduced.

We will shortly be publishing and responding to Richard Ayre’s inquiry into the use of PRS. I can’t anticipate where he will come out, but I’ve known Richard for many years and I know he won’t pull his punches – he never did when I was dealing with him as Controller of Editorial Policy in the BBC and I don’t expect him to now.

And we will shortly be publishing our consultation on Participation TV – we’ve held on to it so that we will be able to incorporate into it any recommendations from Richard’s inquiry.

Quiz TV has probably blown over, at least in its most extreme form – the number of channels and dedicated programming blocks has reduced.

But the lessons of the last few months will be absolutely essential for the future, for the issues that we have been dealing with are only going to become more marked. As another of our Content Board members, Adam Singer, constantly reminds me, television is being challenged at both ends of the scale:

• first, the immense increases in the storage capacity available puts pressure on conventional scheduling,
• while the existence of the return path guarantees that interactivity will be central to the future of broadcasting

This, perhaps, is one of the earliest, and most surprising, challenges of convergence. We all expected it to come around mobile TV, or EPGs, or multi-media licensing. And it will.

But this is convergence of a different kind: a convergence of interests, when the consumer interest and the citizen interest collide. Broadcasters have shown that they are well placed to cope with the interests of the citizen. Now they must convince that they can be equally regarding of the interests of the consumer.

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