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Chapter 5. Outwith remit of the AEWG

In Group discussions, and in response to the public consultation, we were aware that our working definition of adult entertainment was relatively narrow and did not include all of the issues that cause concern to the public.

For example;

• The service does not have to be 'live'. Internet pornography and magazines are not necessarily live broadcasts. (Anonymous response to consultation )

Having cast our net widely at the outset, we then excluded from our brief a number of issues which are regulated already.

Advertising

The Advertising Standards Authority administers the rules by which the marketing industry controls the content of marketing communications. It investigates complaints from both the public and the industry about marketing communications that are alleged to break the British Code of Advertising, Sales Promotion and Direct Marketing (the CAP Code). The ASA also investigates complaints to ensure that television and radio advertising complies with the CAP (broadcast) Codes. We contacted the ASA which confirmed that its Code covers the whole of the UK and applies to:

a. advertisements in newspapers, magazines, brochures, leaflets, circulars, mailings, e-mails, text transmissions, fax transmissions, catalogues, follow-up literature and other electronic and printed material
b. posters and other promotional media in public places, including moving images
c. cinema and video commercials
d. advertisements in non-broadcast electronic media, including online advertisements in paid-for space ( e.g. banner and pop-up advertisements)
e. viewdata services
f. marketing databases containing consumers' personal information
g. sales promotions
h. advertisement promotions

The ASA emphasised that it covers legal advertising because it is a self-regulatory body rather than a legal enforcement body. Therefore, if an advertisement is illegal, such as for an illegal service ( e.g. prostitute cards) the ASA would not adjudicate under the Codes because it would be the responsibility of the police to ensure that such advertising did not appear or that there was not an illegal practice taking place that warranted advertising. The ASA does not cover fly posting which is an illegal practice. We recommend that anyone who has concerns about the content of AE related advertising should report the matter to their Local Authority and to the ASA.

Complaints about sexually explicit advertisements

We asked the ASA for information about complaints received about advertisements featuring male/female strippers and pole or lap dancing or advertisements for adult entertainment activities.

The ASA took over the responsibility for regulating broadcast advertising from the Office of Communications ( OFCOM) on 1 November 2004. As a result it could only provide information about TV ad complaints received after that date. Of the three specific advertisements we had mentioned (Volvic, Timberland Flooring and Vodafone) the ASA only received complaints about the Volvic one. 26 complaints were received that the advertisement was sexist, inappropriately used sex to sell mineral water, contained inappropriate imagery for family viewing times and promoted negative stereotyping. The complaints were considered by the ASA Council, which decided that there was no justification for an investigation into the complaints under the TV Code.

The only other TV ad that the ASA had received complaints about featured an adult entertainment type service for Bounty and featured a scene showing prostitutes in Amsterdam. 10 viewers objected that it should not have been shown during children's programming and that its scheduling was inappropriate. The ASA Council decided that a scheduling restriction should be imposed to ensure the ad stayed clear of children's programmes. Other complaints were received that the advertisement promoted negative stereotyping of transsexuals although the ASA Council decided that those complaints did not justify an investigation.

The majority of complaints received by the ASA about adult entertainment advertisement were for dancing bars on the basis that they are offensive; most were produced by Spearmint Rhino. Typical objections are that such advertisements are unsuitable for public display, especially when posters have been sited near places of worship or schools, and that because they frequently feature scantily clad women as the subject for adult entertainment, they are sexist and objectify women.

The ASA does occasionally receive complaints about advertisements for sex chat lines that appear in some magazines and newspapers. The ASA notes that contact services and sex chat lines are not illegal and there is no prohibition on them being advertised. As with advertisements about dancing bars most of those complaints are about the product rather than the content of the advertising and therefore, are rarely investigated.

Most complaints about this type of advertising are resolved without investigation. The ASA Council usually considers that advertisements are unlikely to cause serious or widespread offence unless they go further than merely showing women wearing little clothing, for example, if they are sexually explicit. In addition, the ASA considers that most complaints they receive are objections to the product being advertised at all rather than the content of a particular advertisement. For example, the level of nudity displayed in advertisements for dancing bars rarely goes beyond that shown in those for lingerie, although the latter tend to draw fewer complaints.

The ASA does investigate advertisements where there appears to be grounds for believing that serious or widespread offence has been caused. Since 2000, it has received;

Local Advertising

We found that City of Glasgow Council and Dundee Council had effective policies with regard to advertising related to the sex industry, including adult entertainment.

In Glasgow, the licensing committee's view on taxi adverting is expressed in its policy on taxi advertising. Each case is considered on its own merits but, broadly, the policy will not allow images of nudity or portrayals of people as sex objects. There is no ban on or restriction of the advertising of adult entertainment premises as such but they are subject to the general policy. All licence holders wishing to carry advertising on their vehicles must obtain the consent of the licensing authority, so this type of advertising is fairly closely monitored.

The taxi advertising policy says that 'In general, each application for approval of advertising material will be considered on its own merits but advertisements will not be permitted which advertise or promote the sale of alcohol or tobacco products; nor if they contain political, ethnic, religious, sectarian, sexual or controversial text; display nude or semi-nude figures; or are likely to offend public taste; depict men, women or children as sexual objects; depict direct and immediate violence to anyone shown in the advertisement or observing it; advertise any racist group or organisation which intends to promote such a group or such organisation and/or any of its activities.'

Fly posting is usually encountered in terms of premises holding entertainment licences and is prohibited by a condition on those licences. Fly posting is also contrary to planning law and enforcement is carried out by the Council's Development and Regeneration Services for the planning authority in terms of planning legislation and not in terms of licensing legislation. Reports of fly posting are generally responded to within a week of notification but if a complaint is received that the material is offensive there is an immediate response. There is currently no monitoring of the amount of material which relates to that of a sexist nature or which is demeaning or offensive to women.

Graffiti is removed by the Council cleansing services and again they will give high priority to complaints regarding offensive material. There is currently no monitoring of the amount of material which relates to that of a sexist nature or which is demeaning or offensive to women.

We also highlight Glasgow's recent distribution of the 'See Something Say Something' Card, a Community Safety initiative, which was launched at the beginning of August 2005. The aim of the campaign was to encourage maximum reporting of graffiti etc and the Council reports an increase in reporting of graffiti, fly tipping, and fly posting from 908 reports to 1400 reports, an increase of 54% on previous figures.

In Dundee, The City Council's Licensing Committee has imposed the following condition on all Taxi Licences in terms of the Civic Government (Scotland) Act 1982:

The holder of a taxi licence shall not permit any notice, advertisement or printed bill or any names, letters or numbers to appear upon the outside or inside of any licensed taxi other than the name, lettering and numbers referred to in Condition 10 ( i.e. name of the operator and taxi number). Where a variation of this Condition is approved the advertisement must not obliterate names, numbers etc referred to in Condition 10. Notwithstanding the provisions of this condition, the holder of the license shall display "no smoking" signs inside the vehicle in the form and position approved by the council's licensing authority.

Accordingly if the holder of a taxi licence wishes to display advertising on his taxi he requires to apply for approval from the local authority. There have been no variations granted which would allow advertising of adult entertainment on any taxi in the City.

The AEWGcommends this type of determined and co-ordinated approach to other Councils who wish to take effective action.

Employment status

We noted concerns from performers that their self-employed status allowed exploitation by operators . One performer asked for more defined guidelines for performers and club owners with regards to taxation. The decision on whether a worker is employed or self-employed is made by HM Inland Revenue and Customs ( HMRC) and is, therefore, outwith the remit of this Group. We noted, however, two relevant challenges, notably Customs and Excise Commissioners v Polok and another⁶⁸; and 16844: Stephen Paul Rudd T/A Duo's Spa and Sauna⁶⁹. From these findings it would be reasonable to assume that the activities of performers and their customers are separable from the services provided by operators.

The Group also noted that one Scottish operator has taken advice on taxation and provides helpful information to the performers. He commented that many performers want to comply fully with taxation requirements so that they have a legitimate source of income to support applications for loans such as mortgages. We note that HMRC is always willing to provide free advice and guidance on personal taxation and recommend that both performers and operators should use that source of advice.

We are concerned by performers' reports of what they see as unfair commission systems and fines. We note that in the absence of a written contract, such terms can be changed arbitrarily, and that can be both unfair and exploitative. We recommend that performers should have a formal contract which sets out the terms for payment, conduct and working conditions. When choosing where to work, performers may wish to take into account the terms of any such contract.

Litter

In relation to flyers that are handed out to advertise clubs then thrown away and also litter in general left around clubs, the Group found that littering is covered by the Environmental Protection Act 1990.

The Act says that If any person throws down, drops or otherwise deposits in, into or on various categories of mainly public land, any thing whatsoever in such circumstances as to cause, or contribute to, or tend to lead to, defacement by litter, this constitutes an offence under Section 87 of the Environmental Protection Act 1990. It is punishable by a fine of up to £2,500. More usually, however, offenders are offered a fixed penalty notice by an authorised local officer, or a police officer, under which they may pay a fixed penalty of £50 and there are no further legal proceedings.

Under Section 89 of the 1990 Act, responsibility for clearing litter rests on a number of so-called duty bodies, which are generally those responsible for the land in question. In most instances of littering, this will be the local authority. The duty body must clear litter to the standards in the Code of Practice on Litter and Refuse, and the Scottish Ministers have powers to direct duty bodies in the performance of this statutory duty. Local authorities may serve litter abatement notices on those who permit land to become defaced by litter, and street litter control notices which specify reasonable requirements relating to keeping the area around premises clean, under Section 92 and 93 respectively of the Act. Under Section 91 any person aggrieved by the failure of a duty body to carry out its clearance duty may obtain an order from the sheriff requiring it to do so.

Phone services

OFCOM, a UK wide regulator , has the power, for the purpose of regulating the provision, content, promotion and marketing of premium rate services, to set conditions that bind the persons to whom they are applied. ICSTIS, the Independent Committee for the Supervision of Standards of Telephone Information Services is the regulatory body for premium rate services.

The AEWG contacted ICSTIS for information and found its definitions helpful. We used some of ICSTIS's definitions and terminology in our recommendations with the aim of promoting coherence and consistency.

ICTIS defines Sexual Entertainment Services as services of a clearly sexual nature or any services for which the associated promotional material is of a clearly sexual nature, or indicates directly, or implies, that the service is of a sexual nature. It adds that services which are pay for product services, where the product is of a clearly sexual nature, are sexual entertainment services.

• Sexual entertainment services, and promotions for them, must not contain references which suggest or imply the involvement of persons under 18 years of age.
• Promotions for sexual entertainment services must not appear in publications targeted at persons under the age of 18.
• Promotions for sexual entertainment services must be in context with the publication or other media in which they appear. Services should be in context with the advertising material promoting them. The content of a service should not be contrary to the reasonable expectations of those responding to the promotion.
• All sexual entertainment services must provide an introductory message at the beginning of the service stating that:
  a. the caller must be over the age of 18, and
  b. the caller should be either the bill-payer or have the bill-payer's permission to call the service

ICSTIS Guidelines are intended to advise the premium rate services industry on how it interprets or applies provisions in the ICSTIS Code of Practice.

Live Services - Providers of live entertainment services are normally required to record all calls and to contribute to the Live Service Providers' Compensation Fund. They must make all reasonable endeavours to discourage under-age callers and unauthorised use. If an operator has reasonable grounds to suspect that the caller is under 18 years of age, the operator should ask the caller their age and date of birth, and ask them any other questions which the operator thinks are appropriate. If the caller hesitates in responding, the replies are inconsistent or the operator is still not satisfied, then the caller should be regarded as being under 18 and the call should be terminated.

Recording Equipment - Service providers are required to record all services, and recording equipment must be compatible with ICSTIS' replay facilities. Recordings must be retained for a period of at least one year and delivered to ICSTIS and the Adjudicator within three working days of request.

Sex Advice Services - To avoid being classified as sexual entertainment services, the content of advice services must not be presented in a sexually titillating manner.

Printed material

UK laws on pornography are covered by the Obscene Publications Act 1959 in England and Wales and in Scotland by The Civic Governance (Scotland) Act 1982.

The AEWG noted that a petition was lodged on behalf of Scottish Women Against Pornography, calling for the Scottish Parliament to define pornographic material as incitement to sexual hatred and to make such incitement an offence similar to that of incitement to racial hatred. The Group decided that the focus of their work should be on matters where there are relevant powers for the devolved Government in Scotland. The broader aspects of the control of the media which can contain pornographic material are reserved matters, and as such were not included in the scope of work for the Group. The petition was therefore outwith our remit and was directed to the group in the Scottish Executive dealing with Extreme Pornography.

In March 2006, the National Federation of Retail Newsagents ( NFRN), which represents 19,000 independent newsagents, issued guidelines to its members on the display of magazines and newspapers that display sexually explicit images. Such items should be displayed out of the sight of children but newspapers can remain on the bottom shelf if they are folded in a way to conceal sexually explicit content. The guidance is not legally binding.

Public order

The Group's remit was to recommend regulations for adult entertainment within specific premises. Any activities that take place outwith premises would potentially be covered by existing legislation on public order. We are satisfied that there is adequate legislation on public order, though we note concerns that members of the public are reluctant to report incidents and can be concerned at the lack of an adequate response. We recommend that members of local communities should always report public disorder to the local Police.

The report on the Economic Impact of AE found that:

• "At a Scotland-wide level it was argued by Visit Scotland that currently there is little negative impact over and above the impact of bars and nightclubs in city centres. There may be a slight problem with specific areas, but the AE industry does not discourage visitors to cities in general. This was seen to be partly as visitors are much more liberal and tolerant than in the past and expect to see a red light district in any major city. Disturbances connected with AE establishments were not seen to discourage tourism or tourist spend more than other bars or nightclubs." In Dundee, the researchers found that "There appear to be very few negative impacts associated with the industry in Dundee, which may reflect the small scale of the industry there. Residents have reported littering and prostitution as associated with AE premises, but these reports are uncommon. The licensing board reported that there is a perceived crime problem associated with AE by some, but that crime statistics do not appear to support this. The police report that there have been very occasional problems of indecent advances towards the performers, but these are rare. Standards of stewarding in AE venues are usually good." (Economic Impact Report see Annex 5)

Sex shops

Local Authorities already have the power to license sex shops but it is at their discretion whether or not they do so. The Group decided that sex shops were already capable of being regulated.

Theatres and cinemas

The Civic Governance (Scotland) Act 1982 Pt II. Section 41. Public entertainment licenses stipulates that

(1) A licence, to be known as a "public entertainment licence", shall be required for the use of premises as a place of public entertainment but does not include-

premises licensed under the Theatres Act 1968, Section 1 of the Cinemas Act 1985 or Part II of the Gaming Act 1968.

A licence is required under the Theatres Act 1968 for the 'public performance of any play'. If a premises wished to exhibit films for commercial purposes it would require to be licensed under the Cinemas Act 1985. Licences for the aforementioned are granted by the local authority and where these licences are held a public entertainment licence would not be required.

The classification of films is a matter reserved to Westminster and is therefore outwith the remit of the AEWG. The British Board of Film Classification is the independent regulator of the film and video industry in the UK.

Under Section 1 of The Cinemas Act 1985 "no premises shall be used for a film exhibition unless they are licensed for the purpose under this section". The licensing authority is the Local Authority in whose area the premises are situated. The licence is granted subject to such conditions as the Local Authority may determine.

The responsibility for classification of films and videos lies with the British Board of Film Classification. The BBFC stipulates that "any material which is in breach of the criminal law, including material judged to be obscene under the current interpretation of the Obscene Publications Act 1959." is not acceptable . There is a category "R18" which applies to films to be shown only in specially licensed cinemas or supplied only in licensed sex shops and to persons of not less than 18 years. According to the BBFC "the "R18" category is a special and legally restricted classification primarily for explicit works of consenting sex between adults. Films may only be shown to adults in specially licensed cinemas and videos may be supplied to adults only in licensed sex shops. "R18" videos may not be supplied by mail order".

Local authorities are not bound to accept the BBFC's classification of a particular film, although this does not happen very often. If a cinema wished to show an "R18" film it would need to ensure that the conditions of its licence allow this or obtain the Local Authority's consent. For example, in Dundee the conditions attached to Cinema Licences allow the showing of films in all other categories, e.g. " PG", "12", "15", "18", etc. but specify that other material may be shown with the consent of the Local Authority.

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