This Guidance does not extend to Information Society services as defined by Directive 98/34/EC (as amended).
This document sets out the policy of the Independent Television Commission, and presently followed by Ofcom, towards the regulation of interactive television services. It is designed to provide guidance to licensees, and should be read alongside the existing rules for the regulation of content, and in particular the Programme Code, the Advertising Code and the Rules on the Amount and Scheduling of Advertising. It is organised into the following sections: -
1. Background
2. Definition of interactive services
3. The ITC’s general approach
4. Dedicated interactive (‘shopping mall’) services
5. Enhanced programming
Background
The ITC conducted an in-depth consultation on the regulation of interactive television services during the course of 2000. This generated a total of 32 responses, some very detailed. The ITC also engaged in a series of bilateral discussions with interested parties. Almost all the participants recognised the complexity of the issues, and the fast-moving nature of the market place. There was also a general recognition of the importance of ensuring that regulatory burdens on this new and important market should be as light as possible. But many respondents also highlighted the need to ensure that the existing protection of viewers of linear television services – especially in relation to the separation of commercial content from programmes, and the protection of children – remains adequately safeguarded.
Definition of Interactive Services
Interactivity is a functionality rather than a specific type of service, and it can be applied in a wide variety of contexts. Its distinguishing characteristic is the ability of viewers to interact with TV programmes by one of two methods:
* by changing the content which appears on the screen – for example to access background information, to change camera angles, to view more than one picture at a time, or to view associated text at the same time as a main picture;
* by providing information to the broadcaster through a return path, usually a telephone line – for example to order a product, to exercise ‘votes’ on options provided by a programme or to participate in an on-screen quiz show.
These services are available only to members of the public with digital equipment, whether satellite, cable or digital terrestrial. A range of interactive services is now being provided to the public by broadcasters using both of these types of interactivity, although many projects are still at the pilot stage.
A separate but related development has been the growth of Internet-via-TV services. These provide access to the full World Wide Web rather than to content moderated by the broadcaster – such web access is not normally edited, except to the extent necessary to make text legible on a TV screen. This kind of service uses the TV essentially as a computer screen, in connection with a set-top box providing a function similar to a PC. The ITC had made it clear that it does not intend to regulate the Internet, however viewers get access to it, and pure Internet-via-TV services lie outside the scope of this policy statement.
The ITC’s general approach to interactive TV services
Interactive TV services differ substantially from the Internet – in that they are provided in the context of TV programmes and content put out by familiar broadcasting organisations. This is an environment in which the viewer has considerable trust, underpinned by well-developed and widely respected standards for all forms of content. This trust is important to broadcasters and advertisers, as well as to viewers.
The ITC takes as its starting point the need to continue to study and understand the interactive services market in its own right, through a combination of:
* close monitoring of market developments
* the establishment of a forum for ongoing discussion with licensees on all the main issues
* research into viewers’ experience of, and reactions to, interactive
television services, where appropriate in co-operation with the
interested parties.
Each of these activities will help to inform Ofcom’s continuing review of the public policy and viewer protection issues.
In the shorter term, the ITC is aware of the need for general guidance for licensees and advertisers. It bases its approach on three general principles:
I. Viewers have a major interest in the development of a dynamic and innovative market in interactive services.
Regulation must not impose unnecessary costs or restraints, and must be confined to dealing with clear viewer detriments. In no circumstances should the financial or opportunity cost of regulation be allowed to outweigh the benefits.
II. We should build on existing audience expectations.
Where content comes unbidden into the home as part of a linear TV service, viewers do not make active choices other than which channel to watch – and they make no active choices at all about advertising which by its nature is unscheduled from the viewer’s perspective. Viewers’ reactions are based on a clear set of expectations about the level of protection provided by the current system.
By contrast, where viewers are ‘pulling’ content, having chosen an interactive option, they are by definition exercising control over it. Their expectations, as a result, can be different.
III. The current distinction between programmes and advertising is important to viewers and should be safeguarded.
Viewers need to be clear when they are being sold to, and TV programmes should be free of commercial interference. This applies to all programmes, but special safeguards are applied to news, current affairs, consumer advice and children’s programmes. Interactivity may well provide valuable and welcome enhancements to programmes; but it must not prejudice the fundamental principle of separation of programmes from advertising.
Taken together, these principles suggest that the potential detriments faced by viewers of interactive services are modest, and that the ITC’s overall approach should be a light touch one. It would not in any circumstances be appropriate to develop ‘new regulation’ for interactive services – the main need is to identify which elements of existing content regulation should be retained for the interactive environment, and which can be disapplied. The ITC’s main regulatory concerns focus on principle III – ie to ensure that viewers are clear about what kind of environment they are in, and that programme integrity is effectively maintained.
The remaining sections of this paper set out how this general approach will be applied to the major types of interactive service which have so far been developed. These fall into two main categories – dedicated interactive services, and enhanced programming.
Dedicated interactive services
These are services accessed in their own right, usually through an electronic programme guide. Typically they consist of electronic ‘shopping malls’ and entertainment services such as betting and gaming. Their content is not usually linked to specific programmes. Some of these services operate entirely within a ‘walled garden’ controlled by the broadcaster; others may be linked to a form of full Internet access.
Viewer detriments can arise from any content on these services which is misleading, offensive or harmful. These are similar to the detriments which can arise from linear services, including teleshopping channels. What is more difficult to assess is the level of protection viewers expect in the dedicated interactive environment. It is reasonable to suppose that it will be rather less than with linear services, given the newness and non-universality of dedicated services, and given the level of deliberate choice required to use them. The ITC has not been aware of any significant problem in the early stages of development of these services, but this is an area that will require further research as the market develops.
Ofcom’s regulatory approach to this area also needs to be closely informed by practicalities, and it was clear from the consultation exercise that it would be inappropriate to take on any kind of commitment to regulate the detailed content provided through dedicated interactive services, even where these operate within a broadcaster’s ‘walled garden’. As the market has developed, it has become increasingly difficult to distinguish between interactive material chosen by viewers from within a ‘walled garden’ and material from the generality of the Internet, and there are risks of distorting the market between the two types of service. One to one transactions, meanwhile, are matters for trading standards officers and the Courts, supplemented by whatever mechanisms traders may choose to establish.
The ITC proposes to set just two requirements in this area:
* Broadcasters’ own content
Where broadcasters provide content of their own, eg as part of a portal to an Electronic High Street, this lies clearly within their responsibility and control. Such content falls within the scope of an Ofcom licence, and will be expected to conform to Ofcom content rules. Pre-vetting may not be appropriate or practicable, but Ofcom would expect that any material it considers misleading, offensive or harmful should be removed on notification.
* Transparency of different types of content
Viewers must not be misled about the regulatory regime that applies to any interactive/internet content they may access, for example they must not believe it is subject to Ofcom or BCAP Codes when it is not
In addition, there may be circumstances where a content provider on a dedicated service provides programming – an example could be a supermarket chain providing a cookery programme for users of an electronic shopping mall. Such content providers would be licensees in the same way as conventional TV companies, and would thus be subject to Ofcom licensing requirements.
Beyond these requirements, the ITC does not propose to set any standards for content on dedicated interactive services, including ‘walled gardens’. Ofcom, BCAP and the ASA will communicate informally to licensees any major content problems brought to our attention, but it will be for broadcasters, advertisers and other providers to decide how best to respond.
Enhanced programme services
These are services which provide for interaction with a linear programme. There are three main cases:
* Editorial enhancements to programmes
These arise where non-commercial content such as background to news, sports events or dramas is accessed from the programme concerned.
* Advertising enhancements to programmes
These arise where commercial material is accessed, either directly or indirectly, from a linear programme, eg for goods or services related to the editorial content. They can be combined with editorial enhancements for example where viewers are given access in the first instance to screens offering a combination of editorial material and banner ads.
* Advertising enhancements to advertisements
These are enhancements accessed through an advertisement (or a sponsorship credit), eg to get more information about a product or where to buy it.
Because these enhancements start from conventional linear programmes, viewer expectations may be rather different from those applying to dedicated interactive services. The decision to interact will usually have been made after the decision to watch the programme, so the viewer may well regard the interactivity as an extension of the programme. Also, accessing the interactivity is likely to involve fewer viewer deliberate choices which may increase the expectation of a level of protection closer to that in the linear environment. There are also significant concerns – widely recognised by respondents to our consultation – about the possible impact of interactive services on the integrity of linear programmes, for example if commercial content is entirely unchecked. The ITC agrees with these concerns, and in general sees no persuasive argument that the protection of programme integrity is any less important in the interactive environment than in the linear one.
At the same time, there is no dispute that some degree of commercial exploitation of links with programmes will be needed if the costs of providing interactive enhancements are to be met.
The ITC has concluded that these two apparently conflicting considerations can be reconciled through the establishment of a set of simplified ground rules based on elements of our existing Codes. These rules are set out in full at Annex A. The main features fall under three headings:
* Licensees’ general responsibility
Licensees are already required under the Programmes and Advertising Codes to ensure that ensure that material they transmit complies with Code requirements. The ITC sees these requirements as extending to all enhancements over which the licensee exercises control, and to any interactive icons present in a programme or advertisement.
* Viewer transparency
Licensees will not be expected to take responsibility for material over which they have no editorial control, but differences of status must be transparent to viewers. For example, viewers must be told any costs of choosing to interact (eg telephone calls).
* Commercial content linked to programmes
Ofcom’s Programme Code prevents undue prominence of products appearing in programmes, and parallel concerns arise with interactive enhancements. Interactive icons themselves should not be branded, and should not be used in a way that encourages undue prominence of a product appearing in a linear programme.
BCAP sets specific requirements in its Advertising Code on the separation of advertisements from programmes. In the interactive environment, the ITC requires three analogous forms of separation.
The first is to prevent viewers from proceeding straight from a programme to a single advertisement – the ITC does not see the choice to interact as being the same as the choice to receive advertising or offers for sale. An intermediate ‘first click’ screen should offer at least some non-commercial material, as well as links to commercial content if appropriate.
The second form of separation is transparency of advertising content – advertising material should be distinguishable as such. This applies in the interactive environment just as it applies to the linear one.
The third form of separation is between specific categories of programmes and specific advertisements. In the linear environment, Ofcom sets a number of rules limiting for example the appearance of programme presenters in advertisements adjacent to the programme concerned. These restrictions apply also to interactive advertising content accessed through such programmes.
In addition, Ofcom has set more specific requirements for interactive enhancements to three especially sensitive categories of programme – news and current affairs, consumer advice programmes, and children’s programmes. Again, these mirror closely the existing rules for linear programmes.
* News and current affairs
No interactive advertisements should be provided for products or services referred to in the relevant section of a news or current affairs programme, and there should be no interactive ads of any kind providing offers for sale.
* Consumer advice programmes
No direct offers for sale may be made for products or services reviewed in a consumer advice programme.
* Children’s programmes
Existing restrictions on advertising within children’s programmes in the linear environment (eg of alcohol, slimming products, medicines, adult films and also of offers for sale of any kind) also apply in the interactive environment.
Ofcom
November 2004