Comments of Ed Richards on release of today's Ayre Inquiry to the Broadcasting Press Guild

Like theatre or cinema, television is a medium that depends heavily on artifice: what you see if you are in the studio or gallery is often very different from what you see the other side of the screen. Most of the time, this artifice is both necessary and legitimate. The viewer knows that, in an era of computer generated images, what appears on television as the weather presenter against a panoramic vista of the Thames from Big Ben to Tower Bridge may in fact have been shot in the studio in front of a green chroma key wall. Similarly, viewers understand and accept what Michael Grade has called the grammatical devices of television - the properly labelled reconstruction, the cutaway to shorten time.

But periodically in broadcasting, the programme-maker’s legitimate artifice has spilled over into falsification and an abuse of the viewers’ trust. Scandal then ensues. It happened most infamously with the rigged quiz show Twenty One in America in the 1950s. It happened on British television in the late 1990s with faked guests on the popular confessional chat shows of the time. And it has erupted again over the past year with participation television.

Last year, public policy and regulatory attention focused on a relatively new genre - participation quiz television for prize money - dedicated channels or programme blocks, often late at night and on cable and satellite channels. There was suddenly a rash of these shows which were essentially about money-making and prizes, and where the programming elements very much took second place. The concerns focused around the transparency of what were in effect the ‘odds’ - a viewer’s chances of getting through on the phone to answer the question; the adequacy of protection for the vulnerable against racking up unmanageable bills and whether the quiz answers themselves were fair and reasonable.

Regulation around all of these aspects was tightened; dubious practice exposed both by whistleblowers going to the press and regulatory scrutiny. A combination of the tightened regulatory screw and the glare of publicity has significantly limited the unchecked and largely unmanaged growth of this sub-genre.

In January there were 4 dedicated quiz channels and 9 dedicated programme blocks aired on 23 channels. By May this was down to 1 dedicated channel, and 4 programme blocks aired on 7 channels. Clear indications from the Gambling Commission about how they will treat such programming when their powers vest on 1 September is likely to see a further diminution in this activity.

But, while this was taking place, earlier this year a series of exposés about interactive participation television on mainstream programmes on mainstream channels burst upon us. This was not middle of the night activity on minority channels. It was in flagship programmes from our largest and most respected broadcasters.

This was no longer regulatory business as usual, coping with and managing change and new developments in the viewers’ and consumers’ interests. This was one of those periodic tipping points in broadcasting where the risk was of long-term damage to viewers’ trust.

Broadcasters’ top management were caught unawares. Viewers, the press and regulators too were surprised at the extent of what seemed to have gone wrong. Rules were in place but had not been followed. There appeared to have been a widespread and systemic failure of Compliance.

As the broadcasting regulator, Ofcom set in train a number of individual investigations into alleged breaches of our Code. The first verdicts have been issued. Significant penalties have been imposed in the form of stiff and unprecedented fines.

ICSTIS, which deals with premium sale telecoms services has similarly investigated the Call-Centres and telecoms service providers who have offered these services to broadcasters. Again, the first verdicts are in and significant fines are being levied.

This is a necessary and important but essentially piecemeal response to a problem that Ofcom believed was more deep-seated and fundamental.

To address it we asked Richard, the respected former broadcasting editor to make an independent report and recommendations on the systemic compliance failures.

Richard Ayre’s report is published today. I believe it is a well-argued, comprehensive and cogent report. It makes far-sighted recommendations, fit for an age when broadcasting, computing and telecommunications converge, and recommendations which will protect the viewer and consumer.

We agree with Richard Ayre’s analysis and with his central conclusion.

His analysis starts from the premise that premium rate participation TV services are popular and can serve the viewer: they chime with audiences’ increasing desire to interact with and participate in a wide range of programming. As such, participation television, unlike dedicated Quiz TV, has a long-term and probably growing future. Secondly, broadcasters have, in the main, simply failed to develop appropriate and transparent compliance systems to manage this phenomenon and what happens when, almost inevitably, telecoms services fail to meet the producers’ or audience’s expectations.

In a lengthened supply chain between the broadcaster, responsible for what goes on air, the independent producer, responsible for what happens in the gallery and studio, and the telecoms company responsible for the systems and call centre, too much can go wrong, unchecked. When failures have occurred there has been, at best, a culture of ‘the show must go on’ regardless; at worst it has been a case of ‘what the viewer does not know won’t hurt them’. The first may have been honourably motivated but was entirely misguided. The second very significantly worse.

This is a wholly unacceptable approach which has betrayed the viewers’ trust. It should never occur again. If it does, responsibilities will be clear and the penalties the most severe the law allows.

Richard Ayre proposes a single, unambiguous point of accountability and compliance - the broadcaster, through their licence from Ofcom. We believe this is sensible. It removes any ambiguity about who is responsible, broadcaster, producer or telecoms company or to whom they are accountable as between ICSTIS or Ofcom. They are broadcasters; on this they account to us. They must deliver compliance systems that any viewer can know, trust and understand.

I observe that whenever periodic broadcasting scandals have erupted it is often in relatively new or unfamiliar formats which broadcasters’ existing editorial and compliance standards do not yet adequately cover. So it has been in this case: most broadcasters simply did not understand that over and above their normal duty of care to mass broadcast audiences they owed a further duty to users of phone in services as individual customers.

We note that the one major broadcaster who Richard Ayre cites as an exemplar of good practice - BSkyB - is a company that has a tradition of understanding not just broadcast audiences but individual customers to whom they owe an individual responsibility as subscribers. In the charges they levy and the nature of the contracts they have with independent producers and call centres, Sky have put the focus of Participation TV on enhancement of the viewer experience rather than being a money-making enterprise in its own right. Sky has millions of loyal customers - a concept from which many broadcasters could learn. So we commend this approach.

There are lessons too for the regulatory regime. Where two regulators are involved, good co-ordination and communication are at a premium as is clarity about who is responsible for what. Richard Ayre’s central proposal for a new broadcasters’ licence condition will help address that; but we will also review the wider aspects of the co-regulatory relationship between ICSTIS, Ofcom and broadcasters. Richard Ayre has expressed concern that a service provider with no fewer than twenty-one breaches of the ICSTIS Code recorded against it was in a position to pitch for and win the contract with one of the main broadcasters. We will look, with ICSTIS, at whether their powers are sufficient in this area and whether the overall relationship between ICSTIS and Ofcom is the right one.

A further key lesson is that the essentially complaints-led investigation regimes which both Ofcom and ICSTIS operate have not on their own been sufficient in this area. When the deception is taking place inside the studio, the gallery or the call centre, audiences are simply unaware that they have been misled or that the call that they have paid for is simply discarded. They have no basis on which to complain. Detection relies on individual whistleblowers. By itself, this is clearly insufficient.

Richard Ayre proposes a system of independent audit and verification. We agree with the principle and will very shortly consult on possible ways of delivering it. We want to avoid being narrowly prescriptive while ensuring that what we do is effective. And we do not want to give any broadcaster the excuse ever to say “but we ticked all the boxes specified; surely that is enough?”

It will not be enough. It is the outcome that matters: that viewers and those who phone in are never misled or deceived again.

There have recently been encouraging words from our top broadcasting executives about a new respect for the viewer as individual customer and of zero tolerance of breaches of viewers’ trust. That is very welcome. But what the viewing public also want to see is chapter and verse of the actual safeguards the broadcasters are putting in place to ensure that the wrong that has happened in participation TV is never repeated.

I encourage the broadcasters to respond openly to that public wish. Not least so that each can learn best practice from the others.

Although Ayre has rightly focused on PRS, I would finally observe that some of the underlying causes he has observed, noticeably blurred accountabilities between broadcasters and producers and the wrong sets of incentives, have led to other examples of programming on our leading channels where the content contained in the programme appears to have misled the viewer.

In these cases, even though unlike Quiz TV because viewers are not giving up their money, they are still giving up their trust.

I believe the new respect for the viewer must be applied across the whole programming schedule from today. Viewers have a right to expect that they can trust all their programming, all of the time, whether it involves direct participation or not.

In mainstream broadcasting in Britain we have long had competition for audiences and competition for quality. We must now ensure that this competition is matched by renewed care and attention towards the fragile fabric of trust that exists between the broadcaster and millions of viewers.

Comments of Ed Richards on release of today's Ayre Inquiry to the Broadcasting Press Guild

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