MEF Responds to the CAP/BCAP Code Consultations

Over the last few weeks, we have been working closely with MEF members in the UK drafting a response to the proposed changes to the Code of Advertising Practice (CAP) and Broadcast Code of Advertising Practice (BCAP) in the UK. A cornerstone of the better regulation strategy and implementation is the five principles of good regulation which state that any regulation should be transparent, accountable, proportionate, consistent and targeted.

I am becoming increasingly concerned that the mobile media industry is being subject to a record number of significant reviews. As the CAP/BCAP consultations show, there are clear overlaps in jurisdiction between different regulators covering the same or differing aspects of content and advertising for mobile media services. These overlaps and lack of clarity as to which regulations apply and when, or by which regulator, clearly go against the better regulation principles. This is evidenced by the fact that some proposed changes to the CAP/BCAP Codes seem to clash with the PhonepayPlus Code. Any such ambiguity is likely to cause serious regulatory uncertainty and as a consequence, the regulatory burden on MEF members runs the serious risk of becoming disproportionate. The mobile media industry has already been subject to considerable scrutiny through the PhonepayPlus “Mobile Phone-Paid Services and their Marketing” consultation which imposed prior permission for certain mobile services. Ofcom is currently consulting on its premium rate services scope review, we will have a new regulator for all audiovisual services soon and PhonepayPlus is planning to consult on its Code in September. All this in a short 12 month period. While I’m not saying that the industry does not need to be regulated, regulation should not be an impediment to the innovative services that consumers find attractive.

The CAP/BCAP reviews are very thorough and I certainly would like to commend and congratulate them for the time and effort they took to look at their respective Codes. However, there is still much work to be done. Ofcom, PhonepayPlus, the Office of the Information Commissioner, CAP/BCAP/ASA, the DCMS and other bodies with a regulatory function really need to meet to discuss the clear demarcation of their jurisdictions and the applications of their Codes. In terms of our response to the CAP/BCAP Codes, we propose:

• That the Codes can be more goal based. They currently contain a long list of provisions that highlight misleading practices that can be incorporated in supplementary guidance to the Codes rather than being in the Codes themselves.
  
• A clarification in the ambiguity caused by certain proposed provisions – particularly the difference of emphasis in the wording of the children’s provisions set out in the CAP/BCAP Codes. In fact the CAP and BCAP Code implement the same legislation in different ways in the Code.
  
• Clear guidance should be provided to cover those situations where there is regulatory overlap. If the complaint relates to premium rate services, then PhonepayPlus should investigate, if it relates purely to advertising, then the ASA should investigate and if it is an issue of data protection and privacy, then the information commissioner should take the lead.

To get involved with MEF and our regulatory work, please contact Suhail for more information. To view our responses, please go to the following links:

CAP

http://www.m-e-f.org/fileadmin/user/Suhail/Regulatory/Microsoft_Word_-_CAP_Code_Response_MEF.pdf

BCAP

http://www.m-e-f.org/fileadmin/user/Suhail/Regulatory/BCAP_Code_Response_MEF_FINAL.pdf

Mobile Entertainment Forum response to Ofcom's Premium Rate Services Scope Review

Suhail Bhat, policy and initiatives director at MEF, has outlined his initial thoughts on the long awaited Premium Rate Services (PRS) Scope Review issued today by Ofcom:


"This follows the recent and thorough PhonepayPlus “Mobile Phone-Paid Services and their Marketing” consultation which imposed prior permission for certain mobile services. The Ofcom Scope Review is important to the industry as its aim is to ensure that the current PRS regulatory regime meets the needs of consumers, affords an appropriate level of consumer protection and also supports an innovative and quickly changing PRS industry. Ofcom states that there are currently gaps in the regulatory framework in the UK that need to be addressed and specifically targets areas of performance that need to be explored. These relate to:

• The clarity of pricing in PRS and the impact on consumer trust and confidence
• The mechanics of consumer redress in the PRS sector
• The ability of the current regulatory regime to deal with new and emerging services
• The effective application of a regulation across the PRS value chain
• The feasibility of a service provider registration scheme and its benefits for regulation and
• Any overlap between PpP role and that of other regulators and consumer protection bodies.

The Scope Review cannot be looked at in isolation of other regulatory developments within the UK or the EU. For example, we are working on a response to the recent Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) consultation on changes to the content of their Codes. CAP/BCAP is proposing to adopt aspects of the Unfair Commercial Practices Directive which bring their Codes directly into conflict with the PpP Code. And the PpP Code itself is scheduled for a major overhaul from September 2009. There is also a proposed new regulator for audiovisual media services through the DCMS which again covers mobile content for video on demand services and advertising.

It is becoming harder to navigate the complex regulatory requirements set out by different regulators. MEF has produced clear guides to all these pieces of regulation for its members and will continue to work with regulators to ensure that the regulatory frameworks meet their objectives. However, at the same time, we hope that the Scope Review will serve as a comprehensive detailing of what needs to be done in the long term to promote our industry and adequately protect consumers - not just a review that is valid until different regulators issue any further consultations."

MEF will be discussing the implications of the Scope Review and other proposed changes in legislation on Tuesday 26th May at 4pm as part of its EMEA Regulatory Committee.