Media Bill

Lord Foster of Bath Excerpts

Committee stage
Monday 20th May 2024 Lords Chamber

I confess that the final amendment is merely a probing amendment, after having noted that there was a difference between the broadcast standards code and the tier 1 standards code where the former includes a ban on subliminal programming or advertising. The tier 1 standards code does not include the same language, and I want to know from my noble friend why that is the case. Even though it might be that the broadcasting code provision has never been used, as it prohibits harmful broadcasting and therefore it is all okay, I am slightly worried that anybody looking at the legislation might say that it is included in the broadcast code but not in the tier 1 standards code and therefore there must be some statutory distinction made between the two codes. I do not think that should be the case. If subliminal material, programming and advertising are prohibited on broadcasting, they should be prohibited on tier 1 services as well. Amendment 58 merely asks that question of my noble friend.

[Lord Foster of Bath (LD)]

My Lords, I begin by saying to the noble Baroness, Lady Thornton, that I am very supportive of her Amendment 35. Perhaps like her, I have had communications over several years from the campaign, Turn On The Subtitles, which is doing extremely good work in drawing attention to the way in which putting subtitles on by default and allowing people to be able to turn them off if they wish has been shown to provide huge benefit to children’s learning of reading.

I also say a huge thank you to the noble Lord, Lord Lansley. He and I had a brief chat the other day about his amendments. I went away and had to put a wet towel over my head in a darkened room to try to understand them, and I did not get very far. I am enormously grateful that, today, I understood the arguments that he is making. They are very much in support of my Amendment 70.

My amendment seeks to apply the Ofcom standards code—which, as we have heard, is described in Section 319 of the Communications Act—to all on-demand programme services, to ensure that there is a consistency in standards objectives across all platforms. I entirely agree with the noble Lord that we need to find ways to bring the Broadcasting Code and the current tier 1 standards code into unison. The problem is that Schedule 7, as currently drafted, will apply those standards only to tier 1 services, leaving a wide range of on-demand services entirely unregulated. It is worth recalling that the senior executive in charge of implementing the first system of VOD regulation at Ofcom, Trevor Barnes, warned last month:

“The Culture Secretary is given very wide discretion to decide who is, and who is not, caught in the Tier 1 net”.


The amendment removes that discretion and, therefore, offers far greater public protection.

As we have heard, Section 319 encompasses a broad range of standards objectives, including protection for children and protection from material that might cause harm and offence, but I will focus on Sections 319(2)(c) and 319(2)(d), which require that news be

“presented with due impartiality and … due accuracy”,

and, further, that the special

“impartiality requirements of section 320”

be applied—namely, that every TV and radio service must preserve due impartiality on

“matters of political or industrial controversy; and … matters relating to current public policy”.

Those requirements date back to the very beginning of commercial TV in 1954 and have ensured that we have had a highly trusted broadcast media environment that has, so far, resisted the kinds of disinformation and polarisation that is so prevalent in online information services. Preserving that trusted environment not only depends on Parliament legislating for impartiality but requires a regulator that is prepared to do its job robustly and to implement that legislation without fear or favour. For most of its 20 years in regulating the linear world, Ofcom has done just that.

But here there is a spoiler alert—I note that the current chairman of Ofcom, the noble Lord, Lord Grade of Yarmouth, is in his place, and I suspect that he will not be particularly comfortable with the view that I hold. I think it is a matter of concern that, more recently, Ofcom does not seem to apply those rules with the rigour that Parliament has required, particularly in respect of GB News. Two examples will illustrate the problem, but there are many that I could have given.

On 13 January, the GB News presenter Neil Oliver used his programme to link Covid vaccines to the non-existent disease of “turbo cancer”, a wholly fictitious medical condition beloved by conspiracy theorists. That kind of dangerous disinformation, which went entirely unopposed on the GB News programme, should have been a slam dunk for a regulator charged with ensuring both accuracy and impartiality on licensed broadcasters. A month later, after multiple complaints, Ofcom delivered its verdict:

“In line with freedom of expression, our rules allow broadcasters to cover controversial themes and topics … We recognise that these brief comments were the presenter’s personal view and did not materially mislead the audience. We therefore will not be pursuing this further”.


It did not even bother with an investigation.

Last month, the same presenter hosted a journalist, Jasmine Birtles, who suggested that action against climate change was part of a “depopulation agenda” designed to

“remove 7.5 billion people from the world”.

There was no contrary view from either the presenter or other guests on the show. What was Ofcom’s response? It simply announced on its website that the programme

“did not raise issues warranting investigation”.

When challenged, it responded that the views expressed on the show

“were clearly presented as a personal opinion, consistent with the right to freedom of expression”.

I suspect that we all support the idea of freedom of expression—it is an Article 10 right—but there is no conflict between that right and an impartiality regime that ensures that all sides of any controversial matter are freely presented. That is the law of the land, and it needs to be upheld in both the linear and on-demand worlds.

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Moved by

[Lord Foster of Bath]

57: After Clause 37, insert the following new Clause—
“Age rating standardsWhere Tier 1 providers use an age rating or other classification system to comply with the duties imposed on them by or under this Act for the protection of audiences from harm, they must—(a) apply the age rating or classification system used by the video works authority based on their classification guidelines, or(b) apply an age rating or classification system that is judged by OFCOM to be—(i) based on a transparent set of appropriate standards,(ii) applied consistently across content,(iii) informed by regular consultation with the UK public, and(iv) well understood and recognised by the public.”Member’s explanatory statement
This new Clause seeks to ensure that, where age ratings are used by Video on Demand platforms, those ratings are the same as the ones used by the British Board of Film Classification or meet equivalent standards of rigour, transparency, and objectivity.

[Lord Foster of Bath (LD)]

My Lords, on behalf of my noble friend Lord Storey and with his permission, I move Amendment 57. It seeks to ensure that, where age ratings are used by video on demand channels—and I of course acknowledge that some adopt a different approach to audience protection—the ratings are the same as the ones used by the British Board of Film Classification or meet equivalent standards of rigour, transparency and objectivity. I pay particular tribute to the noble Lord, Lord Bethell, who has worked tirelessly on this issue and whose amendments, while having the same effect as Amendment 57, provide much more detail on the procedures to be followed. We on these Benches support them, and the amendments from the noble Baroness, Lady Thornton.

I welcome the Bill’s proposal to improve audience protection on streaming services through Ofcom reviews, but my concern is that the Bill does not specify on what basis Ofcom should consider measures to be adequate—echoing the point I made earlier on the need for Parliament to have a greater say in guiding Ofcom on the way it carries out its functions. This is a particular problem when it comes to age ratings, as not all age ratings are equally effective for child protection. The present lack of consistency risks undermining public confidence in age ratings in general and I know there is an unusual level of cross-party support on this particular issue.

In the ideal world—as I see it—all streaming content would carry a BBFC age rating. We expect this of cinema and DVD releases, so why not streaming? Netflix, Amazon, Apple and many others have demonstrated that this is achievable. However, in the interests of achieving consensus, at the very least there should be minimum standards to ensure greater consistency where services choose to use age ratings. This is essentially what all the amendments in this group seek to achieve. BBFC ratings are rightly trusted and valued by UK families. The BBFC is designated by the Government, accountable to Parliament and legally bound to take UK public opinion into account, which it does through extensive research. The BBFC is also fully transparent. It publishes its guidelines and provides detailed content advice to help families make informed choices. This is essential to the effectiveness of its ratings.

Streamers working with the BBFC automatically benefit from its transparency and consistency and from the massive public trust it enjoys. Netflix viewers understand what a 12 or a 15 means on Netflix because it means exactly the same thing as in cinemas or on DVD. I have looked at some of the services that do not use BBFC ratings, including Disney+, Paramount+ and Sky’s Now service. I did not find any information on their age rating criteria, nor any evidence of research underpinning their standards. The ratings these services apply are often misaligned with UK expectations. Even where films and series have a legally enforceable BBFC rating, they often choose to apply—bizarrely—a different rating. How can parents know which rating to trust when the BBFC says one thing and Disney says something different?

To give an example: “Beauty and the Beast”, the 2017 live action remake, was a PG in the cinemas and on DVD. It remains a PG online on those streamers that are working with the BBFC, including Amazon Prime and Apple TV, but on Disney+, for some reason, it has been reclassified as a 12+. Another example is “Bohemian Rhapsody”, the Freddie Mercury biopic. This has a BBFC rating of 12. Many families will have enjoyed it together at the cinema. It remains a 12 on Amazon, Apple and the other services that work with the BBFC, but on Disney+ it is 16+. This means that, if a parent wants to let their 12 year-old watch a film that is entirely appropriate for them, they need to set the child’s Disney+ profile to access 16+ content—but that would include many titles with a BBFC rating of 15 or 18.

At the same time, Disney classified a very sinister 2019 adaptation of “A Christmas Carol” involving graphic horror scenes and sexual exploitation as a 9+. While Disney subsequently took this title down, it was a serious compliance failure when it was released with this rating in the first place. But Disney+ is not the only offender. On Paramount+, titles rated BBFC 12 are routinely bumped up to 15+, putting them alongside much stronger material. Do family favourites such as “Mean Girls”, “Top Gun: Maverick” and various titles in the Transformers series really belong alongside violent thrillers and gory horror movies?

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By contrast, these amendments risk putting unnecessary restrictions on Ofcom and could, in effect, preclude change or any new forms of age rating entering the market, undermining the good progress that has already been made. I am sure that is not what my noble friend or other noble Lords would want to see. However, I appreciate the concerns that lie behind the amendments they have put forward; those are weighty concerns indeed. We have committed to listen to the interested parties on this debate, and we will continue to do that as the Bill progresses.

[Lord Foster of Bath (LD)]

My Lords, I am enormously grateful to the Minister for his detailed response. Clearly, this is an issue we are very likely to return to on Report.

I have a couple of quick points the Minister might ponder on. He told us that Ofcom will be responsible for drafting the video on demand code. He said that will lead to Ofcom having extensive powers. But I am still left wondering how Ofcom is going to be made aware of the views of Parliament as it comes to draw up the code. How will we have any say in that code before it is finally put into place?

I confess that there were a couple of things the Minister said that slightly worried me. In response to a very simple amendment, which asked that one of Ofcom’s statutory consultees would be the BBFC, the Minister said, “We have discovered that Ofcom and the BBFC meet regularly”. I am sure they do, and I am delighted, but this Bill is meant to be future-proof and things could change later. I cannot understand why, if they meet regularly anyway, the BBFC cannot be listed as a statutory consultee.

Finally, it was slightly odd, given all the powers Ofcom has and how it will be able to do all this work, that when it comes to accrediting those who choose not to use an age-rating system, the Minister’s response appeared to be that Ofcom has too much on to take on that responsibility. I thought that was slightly odd. As I said, we are grateful to the Minister for his response, and I am certain we will be returning to this issue at a later date.

Amendment 57 withdrawn.