Government Censorship: DCMS Towards the end of 2000 the Government were reported to be about renew their campaign of proscribing foreign
hardcore channels. In particular, they were about to take on AdultX. Before anything was published, AdultX went down the pan anyway. Shaun took the opportunity to quiz Alan Castleton at the Department of
Culture, Media, Sport and Proscription about the Governments views on porn particularly now that it is no longer considered obscene. Here is the reply received in February 2001. |
Thank you for your email of 13 December about Satellite pornography. I have now received advice on the further issues you raised and considered these issues carefully before replying. I do apologise for the time it has taken to reply to your emails. You
will be disappointed to learn that the Government position in respect of the content of programmes on television as set out in my letter of 21 March 2000 remains unchanged. As also said in my previous letter, there remain wide differences in
opinion about what is acceptable on television, but we consider that the position taken in this respect has the support of Parliament and the public generally. The Government takes very seriously its obligations under the Television without Frontiers
Directive and the European Convention on Human Rights, and considers the action it takes under section 177of the Broadcasting Act 1990 to be in conformity with those obligations. You point out that other countries allow sexually explicit material
to be broadcast, but countries are permitted a margin of appreciation in such matters, and different countries may set different standards according to judgments formed at a national level as to what is acceptable, without being in breach of their
obligations. As I have said the Government believes that its judgments in this respect enjoy the support of Parliament and the public generally. Yours sincerely Alan Castleton Shaun's response
clearly highlights some of the weaknesses in the Government's position so I have included this also
Dear Mr Casselton, Thank you for you recent reply, in respect to the government's continued imposition of censorious (and in my view unjustified) proscription orders, on foreign broadcasters, and the retention of strict censorship on domestic
subscription satellite television. I hope you don't mind this further reply, but I am afraid I remain quite unsatisfied with the response I have received, and therefore would like to address the issue further. I have thus quoted your reply, and
will address points by responses embedded in the quotation. Thank you for your email of 13 December about Satellite pornography. I have now received advice on the further issues you raised and considered these issues carefully before replying. I
do apologise for the time it has taken to reply to your emails. No problem. I can understand the delay considering the difficulty in providing the justification of censorship which I seek from you. You will be disappointed to learn that the
Government position in respect of the content of programmes on television as set out in my letter of 21 March 2000 remains unchanged. Disappointed yes, surprised no. As also said in my previous letter, there remain wide differences in
opinion about what is acceptable on television, but we consider that the position taken in this respect has the support of Parliament and the public generally. I have tried to point out, that mere opinion (regardless of whose opinion), is still no
justification whatsoever for what is after all state imposed censorship, and therefore a restriction of human rights under article 10, freedom of expression. Such restriction demands the *strictest* of justification, must be more than necessary, in a
plural society, after principles of tolerance and broad-mindedness have been applied. With all due respect I hardly think that your reply citing simple public or political opinion hardly consists of any form of justification at all! Some direct
questions which would be very easy to answer, if the restrictions imposed by the government were at all justified and necessary in the way I understand the terms: How many people do you estimate would be harmed, if you did not impose the
restriction ? Exactly what form would this harm take ? What evidence have you, that such harm was occuring, which justified the proscription orders ? Why couldn't the harm be minimized by other legislation imposing the minimum of restriction, on freeborn
(?) adults, such as a requirement not to show sexually explicit material to minors, or allow them to see it ? Why would only attempts of censorship achieve the desired result ? The Government takes very seriously its obligations under the
Television without Frontiers Directive and the European Convention on Human Rights, and considers the action it takes under section 177 of the Broadcasting Act 1990 to be in conformity with those obligations. Well, if so, then what is the
necessity for the rather draconian TV censorshipl we have in this country ? I believe the government takes the need to pander to religious people, and the National Viewers and Listener's Association very seriously indeed! I do not presently
believe it takes the rightful freedom of its citizens to express themselves [in this case via a closed TV channel] very seriously. The continued proscription of broadcasters who show, late at night equivalent material to R18 classified material, hasn't
been justified and the imposition of censorious mechanisms to prevent viewing is therefore, in my humble opinion, nothing but unwarranted repression. You point out that other countries allow sexually explicit material to be broadcast, but
countries are permitted a margin of appreciation in such matters, and different countries may set different standards according to judgments formed at a national level as to what is acceptable, without being in breach of their obligations. Acceptable ? Acceptable to whom ? They are (or were) quite acceptable to me.
The only criteria for such restriction (resulting in the possibility of people being imprisoned for transgression) is proper evidence of harm. That some church goers may find the material unacceptable (to them) isn't any reason for its
restriction, when those people can clearly make their own choice, about it, and it is confined to a subscription channel, where access can be controlled by pin number etc. If they were to have it imposed on them, say via free to air television, they
might have a cause to complain. But not when they don't have to involve themselves in it. Public opinion, might well (and once did) support capital punishment, racial discrimination, and the making homosexual acts illegal. But that doesn't make
them right, does it ? As I have said the Government believes that its judgments in this respect enjoy the support of Parliament and the public generally. As I have said, the research by both the ITC and the BBFC has indicated that: Pornography may be shown, so long as it is legal, and on late at night
. The BBFC on their web site, (which I've quoted) clearly indicates that public opinion no longer supports such unjustified censorship, and people don't want a nanny state dictating to them what they can and cannot see in the sanctity and privacy of
their homes. I believe that most British people have always felt like this, and the Mary Whitehouse types, and the Daily Mail have distorted the real truth. Many conversations I have had with ordinary people, lead me to believe this. Sadly the
government seems to be pandering to the repressive censorious bigots in society, who will use any means they can, to impose narrow minded standards on the rest of us, who *should* in a free society be allowed to make their own choices. I hope,
next time you consider proscription of a broadcaster of adult material, you will remember this email, and ask yourself, as a free born (?) person yourself, if the restriction the Government advocates really is necessary and justified ? As you have STILL
NOT provided justification in terms of both necessity, and harm, I am sure the answer will be no. If the necessity to proscribe these services is so strong, you will have no difficulty in providing it, by return email. Justification should consist
of evidence of harm which would ensue, if the freedom clearly provided for in Article 10 of the EHCR was not subject to restriction. The fact that some people don't like these kind of broadcasts, is in my view completely irrelevant. Thank
you again for your reply. I am afraid, I still seek the justification as to why it is necessary to impose proscription orders, on foreign broadcasters, who show material which would be classified at R18 Yours sincerely, Shaun.
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Attitude to Hardcore Channels On 25th September 1998 David Tucker wrote to Chris Smith, the Minister responsible for proscribing Rendez-Vous etc. and requested copies of
the documents that he considered when coming to his decision.
The reply received is provided below. |
 13th November 1998. Dear Mr. Tucker, Re Eurotica Rendez-Vous TV You requested copies of the documents that
persuaded the Secretary of State to decide to proscribe Eurotica Rendez-Vous. From our files it would appear that the documents you request are in effect a number of submissions by officials to the Secretary of State commencing in December 1997 and up to
September 1998. I further understand that the Secretary of State viewed a video tape provided by the Independent Television Commission containing an evening's broadcast by Eurotica. I attach a summary of the substance of these submissions as they
relate to the proscription of Eurotica Rendez-Vous. I also enclose copies of two departmental new releases. As you may be aware, the proscription of Eurotica Rendez-Vous is the subject of a judicial review being brought by DSTV, the broadcaster, against
the Secretary of State. The Secretary of State is defending his decision to proscribe Eurotica in these proceedings. You will therefore understand that under the Code of Open Government, there are exemptions where disclosure might prejudice legal
proceedings or where information is covered by legal professional privilege. Notwithstanding this, I would hope the attached summary does indeed enable you to see the substance of those documents which persuaded the Secretary of State to decide as he
did. Yours sincerely Alan Simpson.
| Summary of those relevant parts of submissions concerned with the Secretary of State's decision to proscribe Eurotica/Rendez-Vous Background
- In respect of UK-licensed broadcasters, specific matters concerning taste and decency are subject to regulation in accordance with the various programme codes and broadcasters' licence conditions. Section 6 of the Broadcasting Act 1990 prohibits the
transmission of programs offending against good taste and decency. As well as specific broadcasting legislation, all television programmes are subject to the provisions of the Obscene Publications Act 1959.
- While the portrayal of sexual
activity, whether or not in pornography, continues to generate substantial public attention, surveys by the Broadcasting Standards Commission surveys that it is not, as a general issue a major concern for the majority of viewers.
- Adult
channels licensed in the UK.
As well as those broadcasters with generally-based programme remits, which may occasionally show adult-oriented films involving nudity and sex, there are three dedicated adult channels which have been licensed in the
UK by the Independent television Commission (ITC): Playboy TV. The Adult Channel, and Television X - the Fantasy Channel. Contrary to the claims of their critics, these channels do not show explicit sexual acts, but only suggestive material from which it
is impossible to determine whether sex is actually taking place. They may only show material equivalent in content to that which would receive a British Board of Film Classification (BBFC) rating of 18. They are not allowed to show films which have been
classified R18 and cannot show erect penises, or acts of penetration, ejaculation or oral sex, all of which are common on the hard-core satellite channels broadcast from outside the United Kingdom.
- The ITC - the statutory body for licensing
and regulating commercial television provided in and broadcast from the UK - takes the view that, as long as they are encrypted and broadcast late at night, the three dedicated adult channels are licensable, and do not breach the legislative provisions
on taste and decency. They arc not perceived to pose as serious a threat to children as hard-core channels.
- There is a small but highly vocal lobby which does not accept this line of thought, believing that such channels are symptomatic of,
and contribute to, the general decline in moral standards in society.
- The ITC retains responsibility for thy day-to-day regulation of these UK-licensed services, and the UK Government has occasionally been required to defend their
availability, as some Europeans find it hypocritical that the Government allows these soft-core channels to broadcast (and export them to the continent) while taking action against the foreign hard-core channels. One view in Europe is that such channels
merely provide titillation that deprives the viewer of what he (and the majority of subscribers are men) has paid to see, which is explicit sex.
- However, the UK position can he defended when one examines the text of the EC Broadcasting
Directive, and in particular the distinction between the first two paragraphs in Article 22 of the Directive. The first paragraph requires Member States to ensure that no programmes are broadcast which might seriously impair the physical, mental or moral
development of children, in particular, programmes that involve pornography or gratuitous violence. In the case of such programmes, the fact that they are broadcast encrypted is no defence.
- The second paragraph deals with the slightly lower
level of programmes which are likely to impair the physical, mental or moral development of children. The Directive states that such programmes are allowed, providing that by means of encryption, or being broadcast late at night, children would he
unlikely to see them. This accords with the basis on which the ITC has licensed the soft-core channels.
- Hard-core pornography on foreign satellite channels.
As these channels originate abroad, they cannot (under the Directive) be
subjected to the UK licensing system. The Government cannot unilaterally stop them broadcasting, and it therefore looks to a combination of domestic and EC legislation to provide a degree of protection against such services.
- Legal and policy
background.
The ITC has a duty to notify the Secretary of State of a foreign satellite television service which 'repeatedly includes programmes which contain matter which offends against good taste or decency or is likely to encourage or incite
to crime or lead to disorder or to be offensive to public feeling. Where the ITC has formally notified the Secretary of State of such a service, he may make such an order, if he is satisfied that to do so is in the public interest and is compatible with
the United Kingdom's international obligations, The legal instruments relevant to this power are Sections 177 and 179 of the 1990 Broadcasting Act and Articles 2a and 22 of the 1989 EC Broadcasting Directive (as amended in 1997). copies are, attached.
- Prior to the proscription against Eurotica Rendez-Vous, four proscription orders had been made against foreign satellite services:
| 6 April 1993 | Red Hot Television | Netherlands | | 13 November 1995 | XXX TV Erotica | Sweden | | 10 October 1996 | Rendez-Vous | France | | 3 April 1997 |
Satisfaction Club Television | Italy |
- On the first two occasions on which the Government made proscription orders, it is thought that the broadcasters subsequently
went out of business. This was due largely to the fact a significant part of their commercial revenue
came from the UK. It appears that the merger between Rendez-Vous and Eurotica was prompted in part by the effect on Rendez-Vous' income of the Government's third proscription order.
- The Eurotica Rendez-Vous service was created in July 1997.
Eurotica had been broadcasting hard core pornography for,some time, but although it was receivable in the UK, the ITC had not issued a notification. The service was not being marketed in the UK, and as smartcards were not generally available, their view
was that a proscription order would have had no real effect. However, the merged service was widely advertised in the specialist press, and the 5-10 minutes of unencrypted transmission at the start of each evening gave a UK phone number and an annual
subscription price of #129.
- The ITC concluded that the Eurotica Rendez-Vous service was unacceptable and should be the subject of a proscription order and it duly notified the Secretary Of State on 27 October 1997, It therefore fell to the
Secretary of State to consider:
a) whether a proscription order would have been in the public interest; and
b) if so, whether such an order would have been compatible with the UK's international obligations.
- The secretary of state
and officials viewed a video cassette tape containing examples of material being broadcast on Eurotica Rendez-Vous. It contained the same type of material - explicit hard-core pornography - as other channels which had been the subject of proscription
orders to date. The Secretary of State was satisfied that it was in the public interest to make a proscription order against Eurotica Rendez-Vous.
- The Government initiated the consultation process required by the Broadcasting Directive on 9
January 1998, informing the broadcaster, the European Commission and the French authorities (as the Government believed Eurotica Rendez-Vous came under French jurisdiction) of our intention to proscribe the service. However, the French authorities denied
they had jurisdiction. It transpired that Denmark had issued a licence to a part of this set-up called DSTV and it appeared that Denmark had jurisdiction over Eurotica Rendez-Vous under the terms of the Broadcasting Directive. Therefore, in order to he
sure that we had complied fully with the terms of the Directive, we consulted the Danish authorities on our intended action.
- The Department subsequently sent formal letters of notification to the broadcaster. (7 July 1998), to the European
Commission (8 July 1998), via the Permanent Representation of the United Kingdom to the European Union, and to the Danish authorities (7 July 1998) of its intention to proscribe the service.
- Notification letters, which are required by the,
Directive, inform those parties of the Government's view that a service infringes Article 22 of the Broadcasting Directive and of its intention to take measures, in this case to issue a proscription order, should any further infringements take place.
This process serves to ensure that any proposed order complies with the UK's international obligations.
- There then followed a 15 day consultation period with the Commission and Denmark to try to reach an 'amicable settlement. At the end of
this period, the Secretary of State made a proscription order against Eurotica Rendez-Vous as there were further infringements of Article 22.
- On 19 August, the High Court made an order staying the coming into force of the order pending its
hearing of Eurotica Rendez-Vous's legal challenge: it did not have time to consider the case at the time, Those proceedings took place on 9/10 September 1998 and the stay was lifted. The order proscribing Eurotica Rendez-Vous therefore came into force on
11 September and is now proscribed. The broadcaster was, however, granted leave by the Court to seek a Judicial Review of the
Secretary of State's decision.
- The European Commission is charged to ensure that a UK proscription order is
proportionate and compatible with Community law. The Commission's opinion on three of the four previous cases indicated that our action met these concerns.
- .Effect and impact of a proscription order.
A proscription order will not in
itself stop Eurotica Rendez-Vous from broadcasting.What the order will do Is to make it an offence in the UK to:
- promote, advertise or supply the use of decoding equipment designed for the purpose of accessing the service (in this case
a dedicated smart card)
- promote, advertise or supply any equipment or goods for use in connection with the service
- promote, advertise or supply programme material for use the the service
- advertise goods on the service
-
publish programme listings for the service
- The principal effects therefore will be that the service could not be marketed lawfully in the UK and that its commercial revenue should he restricted.
- Thereafter, for the Government's
action to be wholly successful, a proscription order would need to be complemented by the Commission encouraging the Member States with jurisdiction to take action against the broadcaster. This demonstrates the limitations of the Government's position.
While a proscription order restricts the promotion and availability of the channel, it does not in itself stop the service being broadcast, and the Government is ultimately dependent on the European Commission and other countries to take supportive
action.
Department for Culture, Media and Sport
Broadcasting Policy Division
13 November 1998 |
Government Archive: Channel Bizarre Channel Bizarre, a satellite porn channel recently ceased transmission blaming a proscription order by the UK Government. In fact this
wasn't the case as described by the following Response from the Department for Culture, Media, Sport and Proscription.
|
 Thank you for your recent letter about the proscription of Channel Bizarre, it may be helpful if I set out the position in full. In the
UK, responsibility for what is broadcast on television rests with the broadcasters and the broadcasting regulatory bodies: the Governors of the BBC: the independent Television Commission (ITC); and the Welsh Fourth Channel Authority (S4C). They are
independent of the Government and are accountable for safeguarding the public interest in broadcasting, in carrying out their responsibilities, these authorities have a duty under our domestic broadcasting legislation to ensure that programmes contain
nothing which offends against good taste or decency or is likely to be offensive to public feeling. The Broadcasting Act 1990 provides that if the Secretary of State has been notified by the ITC of an unacceptable foreign satellite service, he may
proscribe that service if he is satisfied that to do so is in the public interest and compatible with the UK's international obligations. The Government believes that there is no place for hard-core pornography in a society that cares about the
protection of children and regards such pornography as unacceptable in any medium. Other European countries share our desire to protect children and that is why they agreed to international legislation prohibiting the broadcasting of pornographic
programmes. The European Commission's 'Television Without Frontiers' Directive (89/552/EEC as amended by 97/36/EC) prohibits broadcasters in the EU from transmitting pornographic television programmes. This, coupled with the powers in domestic
legislation enables Member States to take action to restrict access to foreign broadcasters who transmit unacceptable material. The Directive provides for Member States to take appropriate measures to ensure that television broadcasts by broadcasters
under their jurisdiction 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'. Where a Member State believes a breach of this
provision to have taken place, it may take measures against the broadcaster. it is the view of the Minister that programmes broadcast by Channel Bizarre might seriously impair physical, mental or moral development of minors. The harmfulness of such
programmes is the responsibility of each Member State which may define such terms in accordance with its national legislation and moral values. In giving its advisory opinion in case E-8/97 [TV 1000 Sverige AB v the Norwegian Government] on 12 June 1998
(which concerned materially the same provisions), the EFTA Court indicated that it was for the national authorities of the receiving State to determine, in accordance with that State's values and national legislation, which programmes might seriously
impair the physical, mental or moral development of minors, it therefore follows that no Europe-wide standard is appropriate or required and that different Member States may come to different conclusions regarding the same programmes. However, in
the case of Channel Bizarre, no proscription order has in fact been made. There is a requirement to consult the broadcaster with the aim of reaching an amicable settlement and only where such a settlement is not reached does the Minister subsequently
make a proscription order. The Minister consulted Channel Bizarre, but the broadcaster ceased broadcasting before the consultation process had finished. Even if the Minister had subsequently made a proscription order, that would not in itself stop
Channel Bizarre from broadcasting, it would, however, make it an offence in the UK to supply dedicated equipment (e.g.. smartcards) and programme material advertise for or on that channel or to provide any other service in support of the channel The
principal effects, therefore, are that a proscribed service cannot be marketed lawfully in the UK and that its commerce revenue is restricted. Yours sincerely Alan Simpson.
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