Disliking like

I have a new article in the forthcoming issue of the Journal of British Cinema and Television. JBCTV (Edinburgh University Press) is a journal that I have read and cited for some time, so it’s a particular pleasure to be published in it after all that.

The paper is entitled ‘TV-like’: aesthetics, quality and genre in the regulation of video-on-demand services (link is to pre-print version hosted by Newcastle University; updated link to final version will follow). It explores, in more detail than was possible in the on-demand chapter of Medium Law (chapter 6), the way in which ATVOD and Ofcom interpreted and implemented certain provisions of the Audiovisual Media Services Directive (AVMSD) concerning on-demand services. A big sticking point was working out, as required by the law, whether on-demand services were ‘comparable’ to the form and content of television services. Down the rabbit hole I went, and (with encouragement from my friend and sometime collaborator Keith M. Johnston in particular, and a most enjoyable presentation of a very early draft at an ECREA workshop in beautiful Aarhus), I found myself exploring whether the methods and conclusions of Ofcom could be better informed by other aspects of television studies. This arises because Ofcom needed to work out how to respond to the content of on-demand services, under headings such as titles and credits, the duration of the works, the quality of production, and much more. Of course, while all of this was being finished off, ATVOD’s functions were being folded back into Ofcom, and the European Commission was getting the rewrite of the AVMSD on track, so the article ends up as more of a reflection on an experiment, with an eye to how things might be better handled in future.

Here’s the full abstract, anyway, and hopefully some will find it of interest.

From 2010 to 2015, video-on-demand services in the UK were regulated by the Authority for Television on Demand (ATVOD), under an agreement with the statutory regulator Ofcom and applying the pan-European standards introduced through the 2007 EU Audiovisual Media Services Directive. A key question for the regulators and for service providers was whether any given service fell within the ‘scope’ of the law – that is, which services met the legal definition of an on-demand audiovisual media service. This is a study of how Ofcom exercised its role as the final arbiter of that definition, through a close examination of its 15 decisions in appeals against initial determinations by ATVOD. The use of the legal test for ‘comparability’ with conventional television services, and the regulatory focus on ‘TV-like’ on-demand services, has demonstrated the significance of production and aesthetics as a determinant of regulation. In particular, production decisions regarding titles, credits, and duration, as well as a range of issues of perceived quality (audio, video, voiceover, editing, and the like), have been taken into account. It is contended that Ofcom has relied on focus group research, rather than on wider insights from television studies research, in assessing these factors, and that the underlying Directive may have been flawed in its concepts and definitions.


Christmas comes early

For followers of media law, that is. The European Court of Human Rights gave its decision in another political advertising case today, TV Vest AS & Rogaland Pensjonistparti v Norway. Having already dealt with one situation earlier in the decade (VGT v Switzerland, 2001), finding that a Swiss ban was a violation of Article 10 (freedom of expression), and returned to a related matter in the Murphy v Ireland case mentioned on these pages last week, upholding an Irish ban on religious advertising, the case decided today involved a Norwegian political party’s attempt to advertise on TV, despite a statutory ban on such advertisements. The court found that there had been a violation of Article 10. Read the decision here and further comments from OfcomWatch (Russ Taylor) and MediaPal@LSE (Andrew) and Adrian Monck. While some of the counterarguments are dealt with in a bit more detail by the Court on this occasion, there’s not a huge amount in here that wasn’t in VGT, and although the UK did formally notify the Court of the House of Lords decision in ADI, it’s not dealt with directly (there was no obligation to do so, but it would have been very interesting!)

Political advertising on radio and TV is illegal in both Ireland and the UK. Challenges have been brought in both jurisdictions – in Ireland, it was Colgan v IRTC [2000] 2 IR 490. (which predated VGT and wasn’t much more than an application of the Murphy case on religious advertising, which hadn’t yet gone to the ECHR) and in the UK, it was the altogether more surprising Animal Defenders International case, which departed from VGT and found no violation of Article 10 (in the context of a Human Rights Act challenge). Both Ireland and UK intervened in writing in the Norwegian case.

Indeed, it has been a busy time. I dealt (fairly briefly) with the ADI case in teaching just over a month ago and before the semester is over, the landscape has changed. I already agreed to write an article on political advertising in 2009 and it’s turning out to have been an unusually sensible intention – at this rate it will write itself! There have been two significant decisions by Ofcom in relation to political advertising over the last fortnight (!) – one (here) on an advertisement found to promote the Yes cause in the Manchester congestion charge referendum and one (here) on a fairly blatant set of ads for the Lib Dems broadcast on the Channel S satellite services. Things are relatively quiet on the Irish side of things, though of course the Veritas dispute is enough to be going on with (and has led loads of readers to this site – hello, and welcome). The last Irish decisions on political advertising I recall are the Europe Direct decision at the Broadcasting Complaints Commission (discussed here), and the Irish Autism Action one at the BCI – though the one that keeps getting searched for according to my site stats is the earlier Trócaire controversy.

As a bonus link, the court referred to this wonderful EPRA paper from 2006 comparing political advertising rules across Europe. Download it here.

Don’t blame Father Ted

Magners argued that the term feck had been in usage since the 1800s and, in Ireland, the term was used in informal, everyday colloquial conversation with different meanings. They said it could be used to mean “to steal”, “to throw” or “to leave hastily”.

Adjudication: Wm Magners Ltd (Advertising Standards Authority, UK)

I can’t even begin to elaborate…

Edit: Hello Mulley Readers! I’ve been Fluffied again…

The search for veritas

Catholic bookshop/publisher Veritas is raising hell (sorry) over not being allowed to run an ad on Irish radio. The Irish Times has a report and another one. Religious advertising on television and radio is banned in Ireland under statutes as far back as the 1960 Broadcasting Authority Act.

I must say I’m quite disappointed in the reporting and in particular in some of the expert comments. For example, Maura Hyland of Veritas:

noted the “myriad of adverts being broadcast for alcohol, for example – which are not creating difficulties for the BCI”.

which is extremely unfair on the BCI (Broadcasting Commission of Ireland), given that religious advertising is illegal (whether the BCI likes it or not) and alcohol advertising is not. It is the people, through their elected representatives, that chose to put religious and alcohol advertising in different categories. Not the BCI. I appreciate that it’s easy to blame the typical faceless bureaucratic set of initials for all of life’s problems but the buck must stop somewhere, and in this case it’s with the national parliament.

Indeed even solicitors Mason Hayes & Curran are at it (though I can only imagine that they were quoted out of context) :

Solicitors Massan Hayes and Curran, who have advised Veritas described the ban as absurd and said a similar promotion by major stores would have been allowed. “It is almost certainly the case that an identical advert from those advertisers would not be rejected by the Commission,” the lawyers said.

Well it’s very simple. There is a difference between religious advertising and secular advertising. Secular advertising isn’t illegal. Of course an identical advert would not be rejected – why would it?

Anyway, back to the journalists. My problem here is that essentially the same provision was the subject of not just a Supreme Court decision but an unsuccessful challenge at the European Court of Human Rights in the past ten years. How can we expect there to be knowledge of the law among non-lawyers if fairly important elements like this are just omitted, as if they had never happened in the first place? (The case is Murphy v IRTC [1999] 1 IR 26, or Murphy v Ireland at the European level). They don’t mention a single past situation of dispute over religious advertising other than those related to Veritas (though there are many to choose from: Power to Change for example) which would lead the reader to believe that this is a first-time dispute. They don’t mention that there was a lengthy public consultation on this question and the then Government decided to keep the ban. Public engagement with the legal and political processes is so important and it is set back so far by leaving out simple and obvious facts.

There is little that is new here. There is perhaps a relatively minor, but interesting argument to be made over whether the legislative provision is being interpreted correctly. There is a broader argument over whether the provision should be amended or repealed (neither the ECHR nor Supreme Court decision would preclude this) which could be interesting, but few of the objectors seem prepared to deal with that challenge, choosing instead to carp about religion v alcohol and other festively red herrings. Indeed, given that the same advertiser, Veritas, was the subject of a negative decision at the Broadcasting Complaints Commission (BCC) regarding a fairly similar ad earlier this year (here (.doc, I’m afraid)), I smell a publicity stunt.

The final prize for misunderstanding the law goes to the unnamed PA reporter on the Irish Times site, who says:

Under a new Bill being reviewed by TDs, the rules will be changed to ban the promotion of one religion over another while ads will be allowed to promote religious papers and magazines for sale and promote religious events.

The latter point (ads to promote papers & magazines and events) is already the law – it was inserted in the Broadcasting Act 2001 – in response to various past problems. If the reporter can’t tell the difference between the law as it is and the proposed legislation, then no wonder the various contributors to the debate are confused.

The actual change in the Bill is to move from statutory language banning advertising directed towards a religious end to banning advertising “which addresses the issue of the merits or otherwise of adhering to any religious faith or belief or of becoming a member of any religion or religious organisation” (language that is already there in the recent amendment on books & mags & things, but in a different order – I’m not sure if this means anything more than tidying-up in practice, need to look at that in more detail). It’s just like the Lisbon Treaty problem, where a section that has a new bit and a restated bit gets lumped together as a change to the law. If the Broadcasting Bill got dumped, it would still be legal to promote papers and magazines and events – because it already is! Personally I think it’s silly that the exception says papers and magazines are OK but books and CDs are not, but that’s another day’s work.

This is not to say that there is no factual argument here – there could easily be. Diarmuid Martin (Archbishop of Dublin and as far as I recall with significant legal training in his back pocket) addresses this point in the Irish Times article quite well. I just wish that the reporting and the upset advertisers could give an accurate version of what the law is (and even what the law should be). Too much to ask for?

The pictures are better on the radio

A late entry for the award for Silliest Broadcasting Complaint Of The Year (a prestigious competition that I have just made up) is this:

John Barrowman apologises for exposing himself on BBC Radio 1

Yup, that’s right. (Alleged) radio nudity is apparently something we have to be worried about. The exchange was quite traumatic, so do look away now if you are the sensitive type. Apparently the presenters (on BBC Radio 1, late on Sunday evening) laughed and giggled when he said “I’m going to get it out”. I don’t know how the complainant was able to pick himself or herself off the floor, but indeed they did, and managed to let the BBC know. The BBC, as well as the unfortunate aural Chippendale, are falling over themselves to apologise.

In terms of the use of the vast potential of radio, it’s nothing compared to the Irish tradition of live Irish dancing on the radio, and in terms of naughty things in studios, it’s nothing on the 1971 KSAN Margo St. James ‘incident‘ (catalogued in Peter Laufer’s detailed history of talk radio), but this is clearly a Very Serious Issue that the BBC must deal with. Or perhaps not.

Edit: I had this post in draft, and now find (also via the Guardian) this erudite response from John Plunkett.

The BBC Trusts Me?

Screenshot, 12.45pm on 21.11.2008, www.bbc.co.uk/today/My post about the BBC Trust’s decision on local video has turned up on the homepage of the BBC Radio 4 Today programme (click the image which is a screenshot, here for posterity as I’m sure it’s just a fleeting mention). Given that I’m a fan, and the first thing I hear most mornings is Today, this does make me smile and blush in a slightly silly way.

Other stories:

Washington Calling

The US Government Accountability Office (GAO) (about) has put together a fascinating site on major issues, risks and challenges that the incoming President and Congress will be expected to deal with. The non-partisan GAO has always been an effective user of the Web and indeed its orientation towards scrutiny and transparency is a perfect fit for ‘e-government’ (whatever that is).

That alone would be reason to point you towards the Transitions 2009 website. However, with my own preoccupations in mind, it’s nice to see that one of the issues is:

Improving the United States Image Abroad / Public Diplomacy and International Broadcasting

which is described and introduced (including a nice, subtitled video message) here. The history of the US official broadcasting services (the Voice of America etc) is a very interesting one, and while I think the perception of its importance had diminished (particularly in the West), government activities still form a major part of the international broadcasting landscape. In many ways, government-supported ‘propaganda’ broadcasting, particularly via shortwave, predates a lot of our current concerns about jurisdiction and culture and all that jazz. I’ve always had a good deal of respect for VOA – though it’s not a patch either in terms of depth or scope on the (also more independent) BBC World Service – and it and its sister services are facing a lot of challenges, particularly in terms of the changing map of ‘priority’ languages. The US broadcasters are supporters of the Tor project (for anonymous Internet use) which should be acknowledged – even if there are plenty of things about US foreign policy to be critical of, Tor makes things possible that don’t necessarily line up all that well with US interests.

The challenges that the GAO note for the international broadcasting services include finance, management, scope and technology. The reports compiled by the Office to date are revealing, frank and sober. A great resource.