How is the watershed changing in the modern TV world?

As Ofcom conducts a review of its current rules, Ben Dowell examines what changes might mean for terrestrial, on-demand and subscription TV services

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We all know roughly what the watershed means, right? No hanky panky or bad language on TV or the radio before 9pm (or after 5.30am). Broadly speaking, it covers all aspects of unsuitable material, including distressing images – and the main point is to protect children.

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Even after 9pm frequent bad language or violence must be justified by context in all programming and special care must be taken for shows that children are liable to watch.

It’s enforced by the UK’s main media regulator, Ofcom, and all TV channels that have a broadcast licence have to comply.

In addition, the so-called watershed transition after 9pm must not be abrupt, according to the rules. A ten-minute period after 9pm is generally considered to still be covered by the rules – something which has, for example, seen some TV writers forced to re-write scripts for dramas which start at 9pm but open with adult material or a lot of F-words.

Sanctions include warnings or even a fine. Since 2003 Ofcom has taken action on more than 300 occasions when unsuitable content has aired.

The watershed is a rule of thumb clearly understood by viewers, and those who enforce it, and it helps viewers negotiate the schedules.

And it doesn’t look like it is going to disappear any time soon, despite BBC director-general Tony Hall’s prediction in an interview with Radio Times in 2015 that it could disappear. “Has the watershed got a future in 20 or 30 years’ time?” he said. “I suspect not.”

As one official from the department of Digital, Culture, Media and Sport [DCMS] tells RadioTimes.com: “There are no discussions about getting rid of it. It still plays an important part of the protection of children.”

The statistics back this up. Twice a year, Ofcom researches the public attitude to the watershed and on the current evidence 93% of viewers understand what it is and 74% think 9pm is the right time for it. When just parents are asked, that number increases to 76%.

But of course, in today’s on-demand, streaming world, the system is more complicated, as the DCMS official recognises.

The fact that many people now record their viewing and watch at another time presents issues, as does the fact that Netlfix and Amazon are freely available online. So what is the state of play – and how will things change? Here’s our detailed guide.

How are Amazon and Netflix regulated?

Here it gets complicated. Netflix and Amazon do not, obviously, have watershed restrictions. And how an on-demand service is regulated depends on where the provider is established. That’s determined by a number of factors including where the head office is based, where editorial decisions about the service are taken and where a significant part of the relevant workforce is based.

In the case of Netflix, it falls within the jurisdiction of Holland, but it still has to abide by the terms of the European Union’s Audio Visual Media Services Directive, which dictates standards for on-demand services, particularly covering potential harm to children (you can read them here if you’re interested). But Ofcom has no power to issue sanctions on Netflix, as it is regulated by the Dutch regulator.

UK consumers who may not feel this offers the protections they want are of course able to invoke parental controls on subscriptions:  if you pay for Netflix and you’re a parent then it’s up to you to introduce your own safeguards.

Amazon Prime Video is a slightly different case. Like Netflix, it abides by the AVMS Directive but this IS enforced by Ofcom in the UK.

So theoretically, as you can read here, Ofcom is able to levy a fine at Amazon Prime Video if it crosses the line.

Jeremy Clarkson, who who fronts Amazon’s premier TV show The Grand Tour and is, shall we say, familiar with said line, is aware of this. As he disclosed at a Q and A session ahead of The Grand Tour season two.

“It’s a grey area but I think Ofcom already are [responsible for Amazon], but I’m not sure whether they know they are or not – which sums Ofcom up really,” he said. “‘We’re not sure we have jurisdiction here.’ I think they do. [Ofcom have replied by saying they do know – “it’s listed on our web-site as an on-demand service we regulate”].

“I once had two Ofcoms go against me for one programme – which I don’t think anyone’s ever done before. But nobody ever said anything to me! The only way I knew about it was by reading it in the newspapers. ‘Oh, I’ve had a slapped wrist?’ But I haven’t. Nobody ever says, ‘You’ve done this and you mustn’t do it again.’ That doesn’t happen.”

What about recorded content?

The real debate at the moment is around the use of PIN codes to protect viewers, and this is where things are likely to change because Ofcom is currently reviewing the current rules.

At the moment, only premium subscription channels like Sky Cinema are covered by what is known as mandatory pin protection. If you record an adult film and seek to watch it before the watershed then you are automatically asked for your set top box pin number. Sky does occasionally invoke pin protection in some shows (it has happened to me recently while trying to watch a record of comedy Silicon Valley before 9pm) but it is not obliged to.

Currently, rules in Ofcom’s Broadcasting Code allow for films rated up to ‘15’ by the BBFC to be broadcast during the day on premium subscription, and up to ‘18’ on pay-per-view film channels, provided they are protected by a mandatory PIN code. This means a PIN which cannot be removed or bypassed by viewers.

Will this change?

Yes. The regulator wants to introduce what it is calling mandatory daytime protection, ie PIN codes, for content other than 15 or 18 films – and is consulting the industry on this before (as seems likely) introducing the changes later this year.

The deadline for Ofcom’s consultation is 9th May and the regulator will reach a final decision by the end of the summer.

The new rules would effect all the premium pay channels on Sky and Virgin. But clearly only channels available on subscription TV platforms would currently be able to implement this change. Technical limitations make it unfeasible for free-to-air services delivered via digital terrestrial television, such as Freeview, to use a mandatory daytime protection system.

And Ofcom has made it clear that any such reforms would not permit hard core pornography being broadcast pre-watershed.

Will broadcasters welcome this?

Almost certainly. The feeling in the industry is that this could present broadcasters with an opportunity.

Because one potential outcome is that these premium channels could broadcast adult-orientated content – containing scenes of violence, bad language or of a sexual nature – during the day behind a PIN protected wall. For them the watershed will disappear but with safeguards.

And for those broadcasters, it will put an end to the need to cut out offending content in order to air shows before the watershed.

Or as an Ofcom spokeswoman puts it: “Extending mandatory daytime protection rules could enable the Broadcasting Code to allow for increased choice in daytime viewing for adults, while maintaining a robust level of protection for children, to complement the existing 9pm watershed.

“We are seeking views from interested parties to comment on our proposal by Wednesday 9 May 2018. We will take all responses and information received into account before reaching our final decision.”

This is likely to present opportunities for true crime channels to broadcast more adult themed content in the day – while music channels will not have to be as careful as they currently are about the sexual (or otherwise) content of the material they can show….

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For other viewing, it looks like it will be business as usual. As long as we have schedules, we’ll have a form of watershed.