Bailout: five reasons to doubt the Bailey Review

(Talking of course about the just-published (but much-trailed) Independent Review of the Commercialisation and Sexualisation of Childhood by Reg Bailey for the Department of Education, which you can download here.  Also, this is very much an opinion piece, even more so than usual…)

1. As with the Papadopoulos report that came before it (which I discussed here), the report does not even acknowledge once – let alone deal with – the simple fact that proposing new restrictions on the print, broadcast and online media might have an impact on freedom of expression. Let me be clear: as many of you will know, I’m far from a First Amendment free-speech-above-all-rights type, and I have a long record of arguing in favour of media regulation, at least in certain circumstances. However, it is simply not possible in 2011 to pretend that article 10 of the ECHR (among other things) does not exist. Indeed, some of the suggestions in the report might be quite compatible with expression and communication rights, but that’s no excuse for ignoring them entirely. Furthermore, given how many of the recommendations are for vague industry-led responses (with a threat of Government intervention if the right results aren’t delivered), there is a need to get the rights thing right the first time, as the usual mechanisms of scrutiny through the Human Rights Act (and, in a more prosaic way, impact assessments) may not be readily available. Instead, we get a report where the cute opening story is a report from a meeting where it was suggested that button-pressing could cut off TV programmes that the masses don’t like. You couldn’t make this stuff up.

2. I started today by listening to the report’s author confirming on Radio 4 that evidence of harm was not present, but that that should not prevent action. Obviously not. We find the same rigorous approach on p. 37, which alludes to academic debates on the relationship between pornography and harm, while citing two sources that favour the harm argument – Papadopoulos (twice), who was hardly credible on this point, and one pro-harm academic article. Unsurprisingly, this fleeting tour of one of the most controversial debates in media regulation concludes that ‘this (is) a persuasive argument for strong measures to be taken’. Obviously not. We find the same rigorous approach on p. 37, which alludes to academic debates on the relationship between pornography and harm, while citing two sources that favour the harm argument – Papadopoulos (twice), who was hardly credible on this point, and one pro-harm academic article. Unsurprisingly, this fleeting tour of one of the most controversial debates in media regulation concludes that ‘this (is) a persuasive argument for strong measures to be taken’.

3. We are told throughout that there is a problem with complaints systems, but we never get told what this problem is. Sometimes it seems like the target is a nebulous figure. Take for example p. 60, where the complaints to the Advertising Standards Authority regarding children are described as “relatively low” with “just 4.6 per cent of the advertisements (complained about) drawing 10 per cent of the complaints” being the subject of children-related complaints. Just? As compared with what fictional benchmark? I’ve read the ASA code more than once. It has hundreds of things that one could complain about. Why is 10 per cent of the complaints being about children a problem? Similarly, of the review’s own survey, 15 per cent didn’t make a complaint because they didn’t know who to complain to – not far off the 13 per cent who didn’t get round to it, and far short of the 43 per cent who didn’t need to. Yet the recommendations are stacked up to support the sad 15 per cent. There’s a misleading diagram on p. 78 that tries to make the ‘complaints landscape’ look complicated, mostly through putting a plethora of unrelated things on the page and providing unnecessary duplication and details of what are often just different stages in an appeals process. The report (at p. 79) criticises there being different complaints processes for broadcasting, including the distinction between television and on-demand services. What’s not acknowledged is how hard the UK has argued to treat the latter differently, and how much the Government has favoured ‘light-touch’ regulation of new services. Finally – again from the you-can’t-make-it-up department, parents apparently told the review that they felt or ‘feared being made to feel’ embarrassed about making complaints. I’m terribly sorry for their troubles, but if parents are so concerned about the dangerous world, could they perhaps consider getting over it?

4. Parents, parents, parents.  It’s not for nothing that every single large-print italicised quote is from a concerned parent, just happening to support the author’s approach.  This might be OK in an advertisement, but it’s unbecoming of an independent review for Government.  But it goes deeper than this, with multiple recommendations swallowing the parental Kool-Aid, like Ofcom being told to issue an annual report on how it ‘specifically engaged parents’, setting up a special website for complaints from parents to regulators, statistics on support for the watershed that don’t concur with the author’s view being dismissed (on p. 3) with the response that ‘the fact that some parents report otherwise should cause broadcasters concern’, and on and on.  Did I miss a clause that gave parents some special legal status?  If someone is stupid enough to exercise their freedom of expression through making a television programme, should they now read the right to speak as subject to what parents might say?  ‘Many parents think retailers should treat [lad’s mags] in the same way as they treat pornography’ (p. 24).  Well, many parents don’t like homosexuality or immigrants, but that doesn’t make it right.

5. Serious proposals for reforming media regulation need a greater grasp of the law.  For example, one key recommendation is to apply the Video Recordings Act in full to ‘music videos’.  Setting aside broader issues with the Act, it’s not entirely unreasonable to reconsider the ‘exemption’ from classification for most musical video recordings.  However, the report seems to suggest that this will have a major impact on non-VRA uses (TV, download, and so on).  I seriously doubt this.  If videos were being classified in a routine way, then I could see the case that classification might follow through in non-statutory contexts.  But an actual music video is a 4-minute clip that is unlikely to appear on a DVD or other form of physical supply, and would – even without exemption – never need to go to the BBFC in the first place.  Plus, music videos on TV are already subject to the Broadcasting Code, along with other things (soap operas, talent shows and more) that have never been subject to the VRA in the first place.  This issue is the reddest of red herrings.  More puzzling still is the discussion of the ‘watershed’.  The recommendation notes that ‘pre-watershed programming should therefore be developed and regulated with a greater weight towards the attitudes and views of parents, rather than ‘viewers’ as a whole’ (p. 32).  But is the very existence of the watershed not already proof of going beyond viewers as a whole – if the test was for everyone then why would there be a watershed in the first place?  The Communications Act already provides (s 319(2)(a) that the protection of under 18s is a requirement of the Broadcasting Code.  As is so often the case in projects of this nature, the report confuses an objection to the result with an objection to the law.

It’s a pity the report goes down this road, especially as there are some constructive suggestions regarding advertising and commercialisation.  There’s even an attempt to be realistic about fashion, although as that section is very critical of the way the media has overdone the moral panic, that bit’s not being very well reported.  It’s more distressing to see the warm welcome with which the Government has greeted the pro-censorship aspects of the report, seeing no contradiction between doing so and the regular pronouncements that it wants to see the end of the nanny state.  (Replaced by the parents and Mumsnet state, no doubt).  Still, there’s always the hope that, like many reports, its only outcome is another report in a couple of years time…