Culture and Consumerism: Citizenship, Public Service Broadcasting and the BBC’s Fair Trading Obligations
| DOI | http://doi.org/10.1111/1468-2230.00345 |
| Date | 01 September 2001 |
| Author | Georgina Born,Tony Prosser |
| Published date | 01 September 2001 |
THE
MODERN LAW REVIEW
Volume 64 No 5September 2001
Culture and Consumerism: Citizenship, Public Service
Broadcasting and the BBC’s Fair Trading Obligations
Georgina Born* and Tony Prosser**
The authors examine the future of public service broadcasting in the context of
current debates about, and commercial pressures on, the BBC. They describe the
European Community constraints on public service broadcasting and the need for
a clearer definition of such broadcasting, noting that such a definition is not
currently provided in UK law. The BBC is also under increasing pressure from
fair trading rules derived from competition law, some of which may weaken its
ability to deliver its public service mission. Original research undertaken within
the BBC suggests that external and internal pressures have undermined the
conditions for a distinctive public service output, although there remains the basis
for such an output within the culture of programme-making. The authors develop
theoretical bases for a redefinition of public service broadcasting centred on the
principles of citizenship, universality and quality in relation to services and
output, and examine the implications for the structure of channels in the digital
era. Finally, the authors discuss the legal and regulatory implications of their
analysis in the context of the Government’s Communications White Paper,
arguing that the social and cultural purposes of public service broadcasting must
not be made subordinate to competition-based concerns.
Is broadcasting best conceived as a commercial activity or as an expression of
cultural norms and expectations? The obvious answer is that it is both.
Nevertheless, we shall argue that the tension between these different conceptions
of the nature of broadcasting has been a major source of uncertainties in
broadcasting law (including both European and domestic law) and in the self-
image of broadcasters at a number of levels, and that it is far from being resolved.
In particular, the two conceptions imply radically different visions of the nature of
the television viewer, as sovereign consumer making a choice from a range of
services offered by the marketplace, or as a citizen participating in a culture
serving the purpose of his or her self-development as well as that of the society of
which the citizen is a member.
ßThe Modern Law Review Limited 2001 (MLR 64:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 657
* Faculty of Social and Political Sciences, University of Cambridge, and Emmanuel College, Cambridge;
** School of Law, University of Glasgow.
This work draws heavily on research projects funded by the ESRC’s Media Economics and Media Culture
Research Programme: T. Prosser, D. Goldberg and S. Verhulst, Legal Responses to Regulating the
Changing Media, award no. L126251021, and G. Born, Redefining Public Service Broadcasting: An
Ethnography of the BBC, award no. L126251041. We are grateful for the ESRC support and would also
like to thank a number of people for comments: Andrew Barry, Jay Blumler, Richard Collins, John Corner,
Rachael Craufurd-Smith, Mike Feintuck, Tom Gibbons, John Hill, Trine Syvertsen, Damian Tambini and
Charlotte Villiers. The usual disclaimer applies.
In this article we shall bring out the implications of this tension in relation to
public service broadcasting and the BBC’s fair trading obligations, and in doing so
we attempt to provide a renewed normative definition of public service
broadcasting (PSB).1At the outset, our working definition of PSB is broadcasting
the content of which is not shaped simply by market signals from advertisers or (in
subscription services) from viewers, but by an appeal to principles of citizenship,
universality and quality, concepts that we will develop in detail below.2We
confine our discussion to the BBC; this is not to suggest that the Corporation is, or
should be, the only purveyor of PSB, but rather to claim that the problems are
particularly acute in view of the expectations it carries and the defects in its
structure of governance.
At first sight it might appear that the forces of commercialisation are leading to
the rout of broadcasting as culture or public service. The profusion of new services
made possible by digitalisation would appear to remove earlier justifications for
PSB based on spectrum shortage, and the development of pay-per-view services
(should these ever prove popular on a mass scale) will make broadcasting appear
closer than ever before to a marketplace in which services are provided to meet the
preferences of the sovereign consumer.3As a result, we have seen strong pressures
exerted by private sector broadcasters to loosen the requirements on them for PSB,
while the special position of the BBC has been increasingly questioned as
unnecessary, elitist and anti-competitive.4
A dominant criticism of the BBC in public and policy debate in the last decade
has been for lacking compliance with fair trading norms. Indeed fair trading
arguments have become the major means by which the BBC’s competitors have
attempted to erode the legitimacy of the Corporation; while government has also
limited the BBC’s opportunities to innovate on these grounds. In responding to
these criticisms, the BBC has been caught between a rock and a hard place. On the
one hand, if it avoids commercial activities and runs down popular and mainstream
programming on its channels, it can be accused of marginality and of taking the
route of ‘market failure’ provision, simply filling the gaps left by its commercial
rivals. On the other hand, if the BBC does compete with commercial operators, it
makes itself vulnerable to accusations of unfair trading and the abuse of its
privileged position. The crescendo of criticisms of the BBC in relation to fair
trading issues must be seen in the context of a growing crisis in the legitimacy of
the Corporation’s governance arrangements.5Specifically, the criticism has been
made that the governors are constitutionally ill-positioned to take the wider view
and promote the interests of the broadcasting sector as a whole, and thus of this
important sector of the British economy. Dissatisfaction with the regulation of
1 The basis of the article is collaborative and interdisciplinary. It combines comparative research on the
regulatory bases and constitutional status of public service broadcasting (Prosser) with the results of a
two-year ethnographic study inside the BBC carried out in the late 1990s which is set within an
ongoing analysis of the wider broadcasting environment (Born).
2 For earlier discussion of citizenship and PSB see M. Feintuck, Media Regulation, Public Interest and
the Law (Edinburgh: Edinburgh University Press, 1999).
3 The literature on these developments is legion; for an attempt to consider them in the UK context, see
the Select Committee on Culture, Media and Sport, The Multi-Media Revolution HC 520 (1997–98).
4 See eg R. Craufurd-Smith, Broadcasting Law and Fundamental Rights (Oxford: Clarendon Press,
1997) 49–52. For some recent examples of criticism of the role of the BBC in the developing
broadcasting market see the Select Committee on Culture, Media and Sport, The Funding of the BBC,
HC 25 (1999–2000), and evidence thereto.
5 The Culture, Media and Sport Committee has been a major source of criticism; see notably The Multi-
Media Revolution, HC 520 (1997–8), paras 141–59.
The Modern Law Review [Vol. 64
658 ßThe Modern Law Review Limited 2001
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