Andrea MillwoodHargrave provides independent advice on media regulatory policy and research issues. Sonia Livingstone is professor of social psychology in the Department of Media and Communications at the London School of Economics and Political Science.

Sonia Livingstone directs the EU Kids online network at the London School of Economics. 

Harm and Offence in Media Content

A Review of the Evidence

By Andrea Millwood Hargrave, Sonia Livingstone

Intellect Ltd.

Copyright © 2009 Intellect Ltd
All rights reserved.
ISBN: 978-1-84150-238-0

Contents

Preface,
Executive Summary,
1 The Policy Context,
2 Researching Media Effects,
3 Television,
4 Film, Video and DVD,
5 Electronic Games,
6 Internet,
7 Telephony,
8 Radio and Music,
9 Print,
10 Advertising,
11 Regulation in the Home,
12 Conclusions,
Annex I Methodological Considerations in Researching Harm and Offence,
Annex II The Legal Framework of English Law Regulating Media Content,
Bibliography,
Index,

CHAPTER 1

The Policy Context

Introduction

Harm: material damage, actual or potential ill effect. (Soanes and Stevenson, 2004)

Offence: an act or instance of offending; resentment or hurt (ibid.), something that outrages the moral or physical senses. (Merriam-Webster, n.d.)

Recent and ongoing policy initiatives in Europe and elsewhere are typically set against a background of concern regarding the potential for harm from exposure to media content. These concerns arise especially for children and especially for content delivered in easily accessible ways through platforms such as the Internet or in ways less easily regulated than content delivered through a scarce and limited spectrum (as in traditional analogue broadcasting). One of the key changes has been the acceptance of the concepts of ‘harm’ and ‘offence’ as a legitimate reason to legislate or regulate, replacing notions of ‘taste’ and ‘decency’ that had predominated previously in broadcasting regulation in the United Kingdom and Europe. Although the debate, and the evidence base, is largely focused on the exposure of minors to potentially harmful or offensive material, there are other sensibilities such as offence or harm caused to those from minority groups.

Although harmful and offensive material is, in principle, distinguished from that which is illegal (obscenity, child abuse images, incitement to racial hatred, etc), it remains difficult to define the boundaries in a robust and consensual fashion. What contents are considered acceptable by today’s standards, norms and values, and by whom? Borderline and unacceptable material may include a range of contents, most prominently though not exclusively ‘adult content’ of various kinds, and these may occasion considerable concern on the part of the public or subsections thereof. While norms of taste and decency can be tracked, with some reliability, through standard opinion measurement techniques, methods for assessing harm especially are much more contested and difficult. Arguably too, the research evidence – of which there is a huge amount – remains concentrated on a media environment and a regulatory regime that is still in a period of rapid change, rendering the evidence potentially out of date.

With the arrival of newer media content, particularly through the Internet (though also digital television, mobile phones, etc), it is not clear how far the public recognizes or feels empowered to respond to the expanding array of content on offer. It is likely that these newer, more interactive media pose a challenge particularly to ordinary families as well as to regulators. Can they apply familiar domestic practices of regulation and restriction to newer media? What range of concerns do people have regarding new media forms and contents? What do they need to know about whether the greatly-expanded range of contents now available to children have been shown to cause harm or not?

Policy debates attempt to balance the often-conflicting concerns over possible harms against other concerns (most notably, civil liberties and freedom of speech, children’s rights to exploration and privacy, and parents’ capacities or otherwise to regulate their children’s media use). Difficult issues arise. How do we draw the line between the offensive and the harmful? Is it a matter of particular kinds of contents, particular forms of media or particular groups of children? What kinds of harms, if any, have received robust empirical support? What is the evidence for offence across diverse sectors of the population? How far should the regulator and policy-maker concern themselves with audiences other than children?

To produce effective, evidence-based policy looking towards the media environment of the future, an assessment of the evidence for content-related harm and offence is clearly required across as many of the current forms of evolving media as possible. That is the purpose of this updated review.

Regulating against risk of harm – the UK perspective

In the United Kingdom, the Communications Act 2003 requires that the regulator (Ofcom) draws up a code for television and radio, setting standards for programmes, on matters such as protecting the under-eighteens, harm and offence, sponsorship, fairness and privacy. The Act outlines that in carrying out its functions, Ofcom is required to secure:

Section 3 General duties of OFCOM (Office of Public Sector Information [OPSI], 2003) 2(e) The application, in the case of all television and radio services, of standards that provide adequate protection to members of the public from the inclusion of offensive and harmful material in such services;

This was a change from previous content regulatory regimes which had talked of regulating for ‘taste and decency’. Issues of taste and decency are fluid and arguably subjective, especially taste. The Broadcasting Standards Commission (set up by the Broadcasting Act, 1990) recognized this and made a distinction between issues of taste and those of decency:

A distinction has to be made between attitudes which are subject to rapid changes of fashion, such as style of dress or modes of address, and those which reflect more enduring views of right and wrong. Matters of taste are ephemeral, while matters of decency, such as the dignity to be accorded to the dead and bereaved, reflect ideals that acknowledge our shared values. (Broadcasting Standards Commission, 1998)

Ofcom has welcomed this change to a notion of ‘harm and offence’, codified in the Communications Act. The former Chairman of the Content Board, Richard Hooper, said in Ofcom’s ‘Annual Report’ (2005a:15):

In content regulation, the Act also supports a move away from the more subjective approach of the past, based on an assessment of taste and decency in television and radio programmes, to a more objective analysis of the extent of harm and offence to audiences. The result is a Code that is much shorter and is, more importantly, focused on providing protection to those who need it most, particularly children and young people.

In performing its duties, Ofcom (if it appears relevant to Ofcom in the circumstances) must have regard to:

3 (4)(h) The vulnerability of children and of others whose circumstances appear to OFCOM to put them in need of special protection.

In addition, the Communications Act 2003 (Section 127) states:

127 (1) A person is guilty of an offence if he:

(a) Sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) Causes any such message or matter to be so sent.

In terms of broadcasting standards regulation a key change in the Act is the standards objective which requires:

319 (2)(f):That generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material.

There is also a specific requirement within the Act (319 (2)(a)) which sets as a standards objective that people under eighteen are protected.

Within the United Kingdom, a diverse range of laws set the legal framework for considerations of harm and offence, in addition to the Communications Act 2003. These include laws regarding public decency, electronic commerce, indecent display, obscene publications, protection of children, public order, video recordings and so forth; brief accounts of these, as they relate to media content and harm/offence are outlined in Annex II.

Additionally to the legal and statutory framework considering the risk of harm, there have been two recent inquiries considering the potential for harm of the Internet and video-games. The Byron Review (2008) was an independent review, tasked with considering the risks to children in particular and much of the updated material presented here was used by Ofcom in its submission to the Review. Byron’s report suggested a simplification and clarification of the classification system. Regarding the Internet, recommendations include the establishment of a UK Council for Child Internet Safety, reporting to the Prime Minister. The task of this Council should be:

to lead the development of a strategy with two core elements: better regulation – in the form, wherever possible, of voluntary codes of practice that industry can sign up to – and better information and education, where the role of government, law enforcement, schools and children’s services will be key.

Byron suggests that the Council should also have an ongoing research role and that it should reexamine the legislation surrounding sites that may contain harmful and inappropriate material. Further, she makes specific requests of the industry, including a recommendation that computers sold for use in the home should have kite marked parental control software which is easy to install and use. Across both sectors Byron calls for raising awareness of the issues, especially for parents and carers, and for clear information. She also calls for ‘whole-school’ policies regarding e-safety and improving awareness.

In addition to the Byron Review, there has been a Culture, Media and Sport committee inquiry into harmful content on the Internet and in video-games, which looked at all consumers, not just children. Other initiatives have also taken place – the Department for Children, Schools and Families produced an action plan which includes an anti-cyber-bullying pack and a Virtual Cyber-bullying Taskforce. In its ‘Action Plan’ on tackling violence, the Home Office commits to ‘working with the technology and communications industries to tackle violence and offensive content on the internet, and in video games, films and other media’.

Similarly, the Home Office Taskforce on Child Protection on the Internet has published guidance for social networking, aimed at parents and children, and the providers of social networking sites. It makes several recommendations including those relating to safety information, editorial responsibility (including appropriate advertising), registration, user profile and associated controls, identity authentication and age verification. The ‘Kitemark for Child Safety Online’ has been launched (2008) – a collaboration between the British Standards Institute, the Home Office, Ofcom and representatives from ISPs and application developers. This allows manufacturers to get their products certified, increasing control over the standard of filtering, monitoring and blocking applications.

Regulating against risk of harm – the European perspective

The change in content regulation from ‘good taste and decency’ was driven in part by the European Union’s formulation of ‘harm and offence’ (see also Shaw, 1999). Article 22 (1) of the Television Without Frontiers (TVWF) Directive (2003) required Member States to take appropriate measures to ensure that television broadcasts ‘do not include programmes which might seriously impair the physical, mental or moral development of minors, in particular those that involve pornography or gratuitous violence.’ The same Directive said that ‘programmes which are likely to impair the physical, mental or moral development of minors’ may be broadcast as long as scheduling or other access control systems are put in place.

In 2007 the Audio Visual Media Services (AVMS) Directive was adopted by the Member States of the European Union. It replaces the TVWF Directive and is a response to what the Commission saw as the increasing convergence of technologies and markets and the way in which content could be accessed. The AVMS Directive extends regulation to all audio-visual media services, regardless of how they are transmitted, that offer the same or similar ‘television-like’ services. So content such as online games and user-generated videos, as well as electronic versions of newspapers and magazines, fall outside the scope of the AVMS Directive. The Directive refers to the need to protect minors:

(44) The availability of harmful content in audiovisual media services continues to be a concern for legislators, the media industry and parents. There will also be new challenges, especially in connection with new platforms and new products. It is therefore necessary to introduce rules to protect the physical, mental and moral development of minors as well as human dignity in all audiovisual media services, including audiovisual commercial communications.

The Directive mentions the importance of media literacy to create a knowledgeable user base. The Directive is expected to be implemented in the United Kingdom in 2009.

The relevance of media literacy was amplified by the Commission’s ‘Communication on Media Literacy’ (2007) which focuses on three areas:

* media literacy for commercial communication, covering issues related to advertising;

* media literacy for audio-visual works, which is in part about raising awareness of European film and enhancing creativity skills;

* media literacy for online which, for example, will give citizens a better knowledge of how Google and other Internet search engines work.

A separate recommendation on the protection of minors and human dignity and the right of reply in relation to the competitiveness of the European audio-visual and information services industry was adopted in 2006. This recommendation focuses on the content of audio-visual and information services covering all forms of delivery, from broadcasting to the Internet. It encourages cooperation and the sharing of experience and good practices between self- and co-regulatory bodies that deal with the rating or classification of audio-visual content. Thus, it is hoped, viewers can assess the content and suitability of programmes, in particular parents and teachers. The recommendation particularly mentions the importance of media literacy.

Alongside these European initiatives, the European Union has continued with its Safer Internet plus Programme, with a budget of 55 million Euros. It will:

* Reduce illegal content and tackle harmful conduct online: providing the public with national contact points for reporting illegal content online and harmful conduct, focusing in particular on child sexual abuse material and grooming.

* Promote a safer online environment: especially through self-regulatory initiatives.

* Ensure public awareness: targeting children, their parents and teachers. Exchange best practices within the network of national awareness centres.

* Establish a knowledge base: bringing together researchers engaged in child safety online at a European level.

While it is clear that content which may not conform to generally accepted standards or which may offend can be identified through opinion research, complaints and other tests of public tolerance, it is unclear how harm is to be objectively measured. The key objective of this review therefore, is to examine notions of harm and offence across key media, identifying the evidence that exists, while recognizing that regulatory practice and policy may not necessarily be based on direct evidence. It will be important for the industry (from broadcaster to content provider), the regulator and other policy-makers to be able to identify what may cause harm especially, as this is a more profound concept in its implications than offence. It is also important to identify whether and when offence may become harmful, again in relation to the available evidence.

Modes of access

The distinction between types of content services, long established within UK legislation and regulatory practice, has been superseded – or updated – by the adoption of the AVMS Directive. Broadcasting, ‘linear’ programming or a ‘push’ technology, means that content is pushed at the viewer according to a schedule or transmission timetable set by the content provider (or broadcaster). Content that is ‘pulled down’ (i.e. provided as a result of selection by the viewer), such as video-on-demand or Internet-based services, is non-linear and has not been regulated thus far. It does not fall outside the legal framework, however, for it is subject to the criminal law.

With the convergence of broadcasting and Internet protocol-based technologies, the Commission argued that certain regulatory practices should apply to all audio-visual content regardless of its mode of delivery (Eurobarometer, 2004; European Commission, 1997). The AVMS Directive continues to distinguish between linear and non-linear services, but allows for some regulation of ‘television-like’ services based on judgements about audience expectations and editorial responsibility, regardless of delivery platform. Thus, regulation will continue for linear services such as traditional broadcasting, but will also be extended to include television schedules delivered over the Internet (IPTV), streamed content and near video-on-demand. Non-linear services (including video-on-demand) will, for the first time, be regulated, although less prescriptively than linear services. While the Directive argues that transfrontier communications should remain unrestricted, it recognizes that nation states will have to interpret the Directive’s principles according to their own systems. Importantly, the newer technologies such as IPTV remove geographical obstacles. Thus, the ability of Member States to regulate for national cultural sensitivities is uncertain when material crosses geographical boundaries. It is not clear that the new Directive, yet to be implemented, has taken sufficient account of this when seeking to create a European content regulatory system (see Wheeler, 2004).

(Continues…)Excerpted from Harm and Offence in Media Content by Andrea Millwood Hargrave, Sonia Livingstone. Copyright © 2009 Intellect Ltd. Excerpted by permission of Intellect Ltd..
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