Participation TV: Regulatory Statement

Statement published 03|06|10

Executive Summary

Introduction

1.1 Ofcom published a third consultation on Participation TV: rules on the promotion of premium rate services ^(-1-) on 3 November 2009. This document is Ofcom's regulatory statement on this consultation.

1.2 The consultation confirmed (following previous consultations) Ofcom's decision to amend the Broadcasting Code to clarify that services designed primarily to promote Premium Rate Service (PRS) lines would not be considered as editorial in nature (and regulated under the Broadcasting Code) but would be treated as advertising. Advertising is regulated under the BCAP Broadcast Advertising Standards Code (the Advertising Code). The consultation set out the new rules and associated guidance under the Broadcasting Code.

1.3 The changes were necessary to ensure that, as required by the relevant European legislation, advertising is readily recognisable and distinguishable from editorial content. We consider that the changes to the Broadcasting Code benefit viewers and consumers, by maintaining the distinction between editorial and advertising and offering enhanced consumer protection for the latter under the Advertising Code, and benefits broadcasters by increased clarity, consistency and therefore fair competition in the acceptable use and promotion of PRS.

1.4 In reaching its conclusions, Ofcom recognised that, when the new Broadcasting Code rules are brought into effect, those Participation TV (PTV) services which were previously regulated under the Broadcasting Code may now fall to be regulated under the Advertising Code.

1.5 Our impact assessment suggested that relatively few services will be significantly affected by this change and need to modify their services. However, two categories of service Adult Chat ^(-2-) PTV and Psychic PTV - could not continue to operate as they do currently if classified as advertising since the promotion of some categories of premium rate services (PRS) featured on these services is heavily restricted under the Advertising Code. In particular, under the current Advertising Code rules, services predicated on the promotion of live psychic PRS (Psychic PTV) or PRS of a sexual nature (Adult Chat PTV) on a free to air basis would not be permitted.

1.6 However, research commissioned by Ofcom on audience views of Participation TV services showed that viewers are generally tolerant of such services continuing to be broadcast, subject to certain safeguards to ensure that services are appropriately labelled and positioned so that viewers do not chance upon them unintentionally. Ofcom therefore considered changes to the Advertising Code to ensure that the regulation of those services remains proportionate to the aim of protecting the viewing public from harm and/or offence.

1.7 The consultation set out four options for the future regulation of Adult Chat PTV services. These options were:

1. Retain the current rules, allowing promotion of PRS of a sexual nature on encrypted channels only ^(-3-);
   
2. Allow promotion of PRS of a sexual nature on open access channels in spot advertising and teleshopping, subject to scheduling restrictions;
   
3. Allow promotion of PRS of a sexual nature in spot adverts subject to scheduling restrictions, but with teleshopping promotion only allowed on encrypted channels;
   
4. Allow promotion of PRS of a sexual nature on dedicated teleshopping channels subject to scheduling restrictions and labelling rules, but spot advertising remains only on encrypted channels.

1.8 The consultation also set out four options for the future regulation of Psychic PTV services. These options were:

1. Retain the current rules, prohibiting promotion of psychic and occult practices (with the current exceptions for general pre-recorded PRS);
   
2. Extend the exceptions to allow promotion of live personal psychic services, subject to restrictions on the specific type of practice;
   
3. Allow promotion of these specific live personal psychic services in spot adverts only;
   
4. Allow promotion of these specific live personal psychic services only in dedicated teleshopping channels, subject to labelling rules.

1.9 We stated that, in each case, Option 4 was Ofcom's preferred option for regulation of promotion of these services. We proposed amendments to the relevant rules in the Advertising Code, to be introduced when the changes to the Broadcasting Code come into effect.

1.10 We invited responses to the consultation, and particularly to Ofcom's proposal to amend the Advertising Code rules concerning the promotion of telecommunications based sexual entertainment services or featuring live psychic services. The responses are summarised in Section 2 of this document.

Amendments to the Advertising Code rules

1.11 Following consideration of the responses, Ofcom intends to implement the changes to the Advertising Code rules. However, this will be with amendments to the Advertising Code rules as proposed in two areas.

1.12 The proposed Advertising Code rules for promotion of telecommunications based sexual entertainment services required channels to be appropriately positioned and labelled within an 'Adult' or similar section of an Electronic Programme Guide (EPG) on any platform. Digital Satellite (Sky, Freesat) and Digital Cable (Virgin Media) platforms operate segregated genre-based EPGs including an 'Adult' section: channels on these platforms would be able to meet the conditions the proposed rule. However, due to the lack of a segregated EPG on most set-top boxes, channels would currently be unable to meet the conditions for promotion (unless in encrypted form) on the Digital Terrestrial Television (DTT) platform. The most commonly used operator on the DTT platform is Freeview, which provides free-to-air services; there are other operators who provide these free-to-air services plus additional subscription services via DTT. The DTT EPG is administered by the Digital TV Multiplex Operators consortium (DMOL).

1.13 A proposal from Arqiva, who operate DTT multiplexes that carry Adult Chat PTV services and are a board member of DMOL, seeks to improve labelling and sign-posting on the DTT EPG. Ofcom considers that, if such a proposal were implemented, channels carried on DTT would be able to meet the proposed Advertising Code requirement that such channels "are appropriately positioned and labelled within an 'Adult' or similar section of an Electronic Programme Guide".

1.14 However, Ofcom notes that, compared to other TV platforms, DTT provides a smaller number of channels to access; also, not all receivers offer parental controls, to block either individual channels or groups of channels on the platform. The risk of unintentional viewing is therefore higher than with other platforms, and we consider that a stricter timing restriction should be introduced for DTT: that adult sex chat services should be allowed only between midnight and 0530 hours, rather than 2100-0530 on other platforms.

1.15 Under the revised Advertising Code rules set out in the consultation document, in order to promote live psychic PRS, Psychic PTV channels would need to be "appropriately positioned and labelled within a 'Specialist' or similar section of an EPG" on any platform.

1.16 We recognised that the rules as drafted would mean that only channels within an appropriate EPG section would be able to do so, and that this would prevent 'simulcasting' (where the content of one channel is broadcast at the same time on another channel) or teleshopping 'windows' of such content featuring on general entertainment channels. A number of responses claimed that this restriction was disproportionate and would make the core Psychic TV services unviable.

1.17 In the light of these submissions, Ofcom has considered whether the restriction of Psychic PTV services to the 'Specialist' area of an EPG is proportionate to its policy aims. We have considered new information on the financial model of Psychic TV broadcasters, and noted the lack of evidence of risks of harm to users from the psychic services that would be permitted under the rules. We have also considered the risk of offence to viewers.

1.18 Taking these factors into account, we will amend the proposed rule to remove the requirement to be positioned in a 'Specialist' section of the EPG. However, we consider that the conditions of the rule that broadcasters wishing to promote psychic practices, either on entire channels, or simulcast or in teleshopping windows, should ensure that such content is labelled as such i.e. as featuring psychic practices. This will allow viewers to make an informed viewing choice, and for channels wishing to promote psychic PRS to be clearly identified. Ofcom will also keep under review the products featured and the way in which they are advertised.

1.19 The revised rules, which reflect the amendments above, are set out in Section 3 of this document.

Next steps

1.20 The revised Advertising Code is due to come into effect on 1 September 2010. The amended rules will be effective from this date.

1.21 The changes to the Broadcasting Code which were confirmed in the consultation will also come into effect on this date.

1.22 No action will be required for most PTV channels as a result of the changes to the Broadcasting Code and Advertising Code. However, they must ensure that from 1 September 2010 they comply with the Advertising Code.

1.23 The revised Advertising Code rules will require TV channels wishing to promote telecommunications based services sexual entertainment services or live psychic PRS to ensure that they are licensed for the purpose of the promotion of such services. These licences are currently categorised as 'editorial' in the annex to the licence, and will need to be amended to be 'teleshopping' licences. Broadcasters would therefore need to request an amendment to the annex to their licence to reflect these requirements should they wish to broadcast such content. This should be in advance of the date that the rules come into effect on 1 September 2010.

1.24 Ofcom, BCAP and the Advertising Standards Authority (ASA) have agreed that, for the time being, Ofcom will be the regulatory body for Participation TV (defined as all types of long-form advertising that are primarily dependent on promotion of Premium Rate Service phone lines, and other paid interaction with content). This includes services currently regulated by Ofcom (adult chat, psychic, quiz) and others currently regulated by the ASA (gambling, message boards, dating).

Footnotes:

  1.- See http://www.ofcom.org.uk/consult/condocs/participationtv3/

  2.- In this document we use the generic term Adult Chat PTV. Adult Chat PTV channels promote PRS services of a sexual nature, and non-sexual PRS services or what is sometimes called flirtatious chat. These terms are explained at relevant points in the document and defined further in the Glossary.

  3.- In the consultation and this document when referring to "encrypted" channels or "encrypted" elements on those channels, Ofcom means the same as "mandatory restricted access" as defined in Rule 1.18 of the Ofcom Broadcasting Code (revised December 2009). Both the existing and new draft BCAP Codes refer for example to "encrypted elements of adult entertainment channels."