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Should Ofcom consult on longer TV advertising breaks?

When an almost identical story appears in all the mainstream media simultaneously, it is usually a clear sign of a concerted management exercise to communicate with the public.

Last weekend, the same story appeared everywhere to the effect that Ofcom[1] would be reviewing changes to the rules that govern how much advertising time can be shown on commercial television. Here is the BBC version of the story.

There was no press release or documented interview; just a classic ‘leak’, but a pretty precise one. Note these two quotes.

“Ofcom admitted it would “listen to different views and examine what TV viewers say”. 

“We’re scoping a range of options, but before we form any plans we’ll listen to different views and examine what TV viewers say. We need to strike the right balance between protecting viewers’ interests and sustaining our traditional broadcasters, which includes helping them compete with American streaming platforms.”

However, there is no sign of a consultation. It is not that Ofcom is a hesitant consultor. As this is being written there are 15 consultations ‘open’ on its website, and, over the years it has been one of the better regulators in the way it has managed its consultation process. So maybe a consultation is being planned.

Note however that the same leaked story states that “We have had initial discussions with stakeholders, and we expect to be able to outline our next steps later this summer.” Alternatively, “ Ofcom said it expected to give more details about the potential changes to advertising later in the summer”. On this timescale, there is little opportunity for a meaningful consultation. Critics will no doubt complain that the review feels like an industry stitch-up. There may be a commitment to ‘listen’ but without a formal process, it is difficult to feel confident that it would either transparent or inclusive.

Several thoughts occur to us:

  1. Organisations like Ofcom will no doubt rely upon focus groups and other forms of ‘research’ in order to gather information to feed into decision-making. It may sound reasonable but consider the weaknesses of this approach. There is no clarity as to what exactly is already pre-determined (Gunning One); no requirement to provide the full information to inform their discussions (Gunning Two), and of course no commitment to take account of what is heard (Gunning Four). Then, who chooses the participants?
  2. Ofcom’s consultations are mostly technical, and not easily accessible to the general public. Some of its responsibilities, however, cover matters of considerable interest to many people, who, individually or collectively might feel they’d like to have a say. In an important Regulator, who exactly decides what is and what is not subject to a public consultation?
  3. …which leads to the pressing need for independent oversight of public consultations in the UK. In The Politics of Consultation[2], Elizabeth Gammell and I argued the case for an Office of Public Engagement which can remove from organisations like this, the unfettered power to decide whether or not to consult.

The wider issue is about the kind of democracy we have in 2022. Two years ago, the OECD conducted an extensive review of emerging models of citizens’ participation[3], and explored dozens of different variations. The movement towards greater public involvement (yes … even in non-democratic countries) seems unstoppable, but the precise forms which it takes can vary enormously. Many are subject to manipulation, and the need for enforceable standards is clear. The popularity of Citizens’ Assemblies is but one manifestation of this trend, and public bodies are still experimenting with such initiatives.

Increasingly, there are choices to be made. Ofcom – and all the other public decision-makers can select any number of methodologies through which to ‘listen to different views’.

Some are better than others, but public consultation remains one of the most robust options – not least because there are definite rules, and our Courts will enforce them.

In the case of longer advertisement breaks, who knows what the public’s views may be? Possibly they might welcome the chance to stretch their legs, make the proverbial cup of coffee – or maybe they eagerly anticipate successive attempts to persuade them to swipe their credit cards on what’s on display. But at least with a public consultation, they have the right to express their view and for those views to be conscientiously considered. This is far better than leaving it to the whim of a researcher to decide who to approach and what to ask them.

Ofcom should hold a public consultation on this issue.

[1] Ofcom is the regulator for TV, radio, video on demand, fixed line telecoms, mobiles, postal services, plus airwaves …

[2] The Politics of Consultation (2018) by Rhion Jones and Elizabeth Gammell is published by the Consultation Institute and is available through the Institute website. (See here)

[3] The extensive project is called Innovative Citizen Participation –  (See here)

 

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