Broadcast Bulletin Issue number 115 - 11|08|08
Notice of Sanction
British Broadcasting Corporation (“BBC”)
Comic Relief, BBC1, 17 March 2007
Sport Relief, BBC1, 15 July 2006
Children in Need, 18 November 2005, BBC1 (Scotland)
TMi, BBC2 and CBBC, 16 September 2006
The Liz Kershaw Show, BBC 6 Music, 25 July 2005 - 6 January 2007
Russell Brand, BBC 6 Music, 9 April 2006
The Clare McDonnell Show, BBC 6 Music, from September 2006
The Jo Whiley Show, BBC Radio 1, 20 April 2006 and 12 May 2006
On 30 July 2007, Ofcom published its decisions to impose statutory sanctions on the BBC for breaches of Rules 2.11 (competitions should be conducted fairly) of the Code in the programmes listed above.
Ofcom has found that Rule 2.11 was breached in each programme as follows:
Comic Relief , BBC1, 17 March 2007
- Five participants were needed to take part in a competition. When only two participants were available and then provided incorrect answers, the programme’s Associate Producer arranged to be telephoned and subsequently went on air and won the competition.
Sport Relief , BBC1, 15 July 2006
- During pre-production the programme’s Executive Producer approved a contingency plan to deal with any failure with the telephony systems. In the event that there was no available shortlist of possible winners to participate in the competition live on air, a Production Co-ordinator would ‘stand-in’ as the winner. During transmission, a technical problem resulted in no callers being available to participate. The Production Co-ordinator went on air and was declared the winner.
Children in Need , BBC1 Scotland , 18 November 2005
- A competition was devised for a live regional opt-out for BBC1 Scotland. When pre-transmission arrangements with a local call centre were not communicated properly, resulting in no callers being available to participate on the night of transmission, a fictitious name was put on screen and confirmed as the winner.
TMi , BBC2 and CBBC, 16 September 2006
- A problem contacting potential winners who had called in to participate in a live competition led to the programme’s Series Producer asking a Researcher to play the part of a contestant live on air. The Researcher went on air, assumed the role of a child, and won the competition.
The Liz Kershaw Show , BBC 6 Music, between 25 July 2005 and 6 January 2007
- In up to seventeen pre-recorded programmes, which were broadcast ‘as live’, listeners were encouraged to enter competitions that they would have no chance of winning. In these programmes, members of the production team posed as genuine winners and also made up fictitious names which were presented on air as genuine winners.
Russell Brand , BBC 6 Music, 9 April 2006
- In a pre-recorded programme, which was broadcast ‘as live’, listeners were encouraged to enter a competition they would have no chance of winning. A BBC staff member was presented in the programme as a genuine winner.
The Clare McDonnell Show , BBC 6 Music, from September 2006
- In an unspecified number of programmes, the production team made up the names of competition winners, when there were not enough correct entries to the competition. In addition, the production team sometimes denied genuine winners their prize because they had previously won competitions on BBC 6 Music; this was not made clear in the terms and conditions of the competition.
The Jo Whiley Show , Radio 1, 20 April 2006 and 12 May 2006
- In a partially pre-recorded edition of the programme transmitted on 20 April 2006, listeners were invited to enter a competition which they would have no chance of winning. The section of the programme containing the competition had been pre-recorded, but was broadcast ‘as live’. The individual presented in the programme as the winner of the first part of the competition was a BBC employee and the name of the winner of the second part of the competition was made up by the production team.
- In a pre-recorded edition of the programme transmitted on 12 May 2006, which was broadcast ‘as live’, listeners were invited to enter a competition which they would have no chance of winning. The individual presented in the programme as the winner of the first part of the competition was a member of the public who had been contacted specifically by the production team to take part in the pre-recorded competition. The name of the winner of the second part of the competition was made up by the production team.
For the reasons set out in the adjudications, Ofcom imposed a financial penalty on the BBC in relation to each programme, and in some cases directed the BBC to broadcast statements of its findings in a form to be determined by Ofcom, as follows:
Comic Relief : a fine of £45,000 was imposed on the BBC for the breach of Rule 2.11 in the live programme on BBC1;
Sport Relief : a fine of £45,000 was imposed on the BBC for the breach of Rule 2.11 in the live programme on BBC1;
Children in Need : a fine of £35,000 was imposed on the BBC for the breach of Rule 2.11 in the live programme on BBC1 ( Scotland );
TMi : a fine of £50,000 was imposed on the BBC for the breach of Rule 2.11 in the live programme transmitted on BBC2 and CBBC. In addition the BBC has been directed to broadcast a statement of Ofcom’s findings on BBC2 and CBBC in a form to be determined by Ofcom on two specified occasions;
The Liz Kershaw Show : a fine of £115,000 was imposed on the BBC for the breaches of Rule 2.11 in up to seventeen pre-recorded editions of the programme on BBC 6 Music. In addition, the BBC has been directed to broadcast a statement of Ofcom’s findings on BBC 6 Music in a form to be determined by Ofcom on two specified occasions;
Russell Brand : a fine of £17,500 was imposed on the BBC for the breach of Rule 2.11 in a pre-recorded edition of the programme on BBC 6 Music;
The Clare McDonnell Show : a fine of £17,500 was imposed on the BBC for the breaches of Rule 2.11 in a number of unspecified pre-recorded editions of the programme on BBC 6 Music;
The Jo Whiley Show : a fine of £75,000 has been imposed on the BBC for the breaches of Rule 2.11 in two pre-recorded editions of the programme on Radio 1. In addition, the BBC has been directed to broadcast a statement of Ofcom’s findings on Radio 1 in a form to be determined by Ofcom on two specified occasions.
The full adjudications can be found at:
Portland Enterprises (C.I.) Limited
Television X – The Fantasy Channel, 8 June 2007, 22:00
On 23 July 2008 Ofcom published its decision to impose a statutory sanction on Portland Enterprises (C.I.) Limited (“Portland Enterprises”) in respect of its service Television X – The Fantasy Channel (“Television X”) for serious breaches of the Code. Television X included in its service so-called ‘babe’ programming, i.e. live programmes using female presenters (described as ‘babes’) who interact with viewers through the use of premium rate services (“ PRS ”). Elements of this programming – both encrypted and free-to-air – were found in breach of the following Code Rules:
- 1.24 (‘adult-sex’ material);
- 1.25 (R18-rated films or their equivalent must not be broadcast);
- 2.1 (generally accepted standards);
- 2.3 (material that may cause offence must be justified by context).
Ofcom found Portland Enterprises in breach of these rules due to the following conduct:
- the free-to-air transmission of material of a character that should have been subject to protection by encryption and other controls (breach of rule 1.24);
- the transmission under encryption of material that was equivalent to BBFC R18 classification (breach of rule 1.25); and
- the broadcasting of sexually explicit content contrary to viewer expectations for a free-to-air unencrypted channel (breaches of Rules 2.1 and 2.3).
For the reasons set out in the adjudication Ofcom imposed a financial penalty of £25,000 on Portland (payable to HM Paymaster General).
The full adjudication can be found at:
Saturday Early Breakfast
Dream 100 Radio, 15 March 2008, 07:20
A listener complained to Ofcom that on 15 March 2008 the message “Text Dream by sending the word DREAM and your message to 64477. Texts are charged at 25p plus your standard network rate” was aired during Dream 100’s Saturday Early Breakfast show in a programme that was pre-recorded. The complainant was therefore concerned that listeners were being encouraged to interact with a programme where it was not possible to do so.
Ofcom asked Tindle Radio, the owner of Dream 100 Radio, for its comments under Rule 2.2 of the Code which states that factual programmes or items “must not materially mislead the audience”.
Tindle Radio said that training had been given to staff at all of its radio stations and in particular at Dream 100 to ensure that presenters did not solicit for texts in pre-recorded programmes. However, it said that this was not what had occurred on this occasion. It continued that, as a precaution to listeners to ensure they knew about the 25p text charge for texting comments into the station, PhonepayPlus (the premium rate services (“PRS”) regulator) requires broadcasters to transmit approximately eight 'wealth warnings' throughout the day to ensure listeners are made aware that texts are charged at a higher rate. It continued that it had never been advised that they should only be transmitted in 'live' hours and that it had just ensured that it was rotating them as required. However, it said it accepted that there was the potential for it to be unclear as to when contributors should expect their message to be read out if they were not aware that they were listening to a recorded programme. As a consequence, it had removed all such promotions from pre-recorded programming.
The broadcaster also confirmed that it had slightly changed the wording of the 'wealth warnings' it transmits, which now state " If you want to text Dream 100" which it considered made it clearer that its purpose was not to solicit for messages but to warn listeners of the costs.
Tindle Radio concluded its response by apologising for any errors it had made and stated that there had not been any intention to harm listeners by charging them unduly, adding that the price of the texts only covered the costs of the shortcode text system it uses.
On 25 February 2008 (in Broadcast Bulletin 103), Ofcom resolved a complaint against Dream 100 Radio which involved the broadcast of pre-recorded programming containing direct calls to action for listeners to submit song requests by text message, using PRS. After a full investigation, Tindle Radio apologised and told Ofcom that it had instructed its presenters to avoid promoting its interactive services during pre-recorded programming. In view of the broadcaster’s previous assurances Ofcom was therefore extremely concerned to note that listeners were still likely to be misled into potentially submitting text messages during pre-recorded programmes without it being made clear whether any such texts were likely to be put to air. In addition, given that text messages were submitted using PRS, there was also the potential to cause material harm. In this instance, whilst the broadcaster believed that the messages in question were ‘wealth warnings’, Ofcom considered that the inclusion of the first sentence, in the form of a direct ‘command’ i.e. “Text Dream by sending the word DREAM and your message to 64477” amounted to a ‘call to action’ and therefore did have the potential to mislead the audience by encouraging them to consider that they could legitimately interact with the programme they were listening to; which they could not.
Ofcom acknowledged the broadcaster’s admission that the ‘wealth warnings’ had the potential to mislead and welcomed its actions in removing them from pre-recorded programming. However, given its previous finding published in Bulletin 103, Ofcom considered it unacceptable that the broadcaster, which should have been in no doubt regarding the seriousness of this issue, continued to appear to encourage its listeners to pay to submit texts during pre-recorded programmes.
Broadcasters must at all times ensure that the audience is not misled into thinking they can legitimately interact with pre-recorded programmes and especially when they are being charged to do so. Ofcom therefore expects Tindle Radio to take particular care in ensuring that its use of PRS and interactivity complies with the Code in the future.
Breach of Rule 2.2
Rick Shaw’s Drivetime
XFM, 21 January 2008, 16:45
Rick Shaw’s Drivetime featured a regular competition called “The Random Question Generator” during January and February 2008. To enter, listeners were invited to send a text message to a five digit short code (charged at their standard network rate). An entrant was then selected at random to appear on air at a later date, usually the following day, to answer a series of questions.
During the competition, the presenter, Rick Shaw, asked the questions in a 40 second period. When the 40 seconds had elapsed, he announced that the contestant could have a prize for every correct answer given and proceeded to ask what prizes they would like. Rick Shaw then agreed to each of the contestant’s prize requests, irrespective of their absurdity (e.g. “a girlfriend”,“a private jet” and “a pint of milk”) . However, there was at no time any intention of these prizes being awarded – instead, each contestant was sent a selection of CD and DVDs.
Ofcom received a complaint from a “winner” who had also contacted XFM directly. The complainant considered that the competition was misleading because he had understood that the prize pledges made by Mr Shaw were genuine. Ofcom asked GCap Media, the owner of XFM, for its comments under Rule 2.11 of the Code (fair conduct of competitions).
GCap, who owned the broadcaster at the time, explained that this particular competition was in essence a joke and was presented as such. It argued that the sheer nonsensical nature of some of the requests and the presenter’s nonchalant response clearly indicated this. It added that it was standard procedure to advise entrants prior to going on air that they would be asked to state a random but fictitious prize. In GCap’s view, therefore, it considered this was sufficient in informing contestants of the true, informal nature of the competition. Nevertheless, it stated that to prevent any further misunderstanding, The Random Question Generator had been withdrawn from the schedule after the complainant contacted the station.
Rule 2.11 of the Code requires that “competitions should be conducted fairly, prizes should be described accurately and rules should be appropriately known”.
Whilst Ofcom acknowledges the advice given to entrants before taking part, in this instance, it is principally concerned by how the competition was likely to have been perceived on air by listeners. Ofcom considered whether there was any likelihood of listeners and indeed entrants believing that Mr Shaw’s acceptance of their prize requests was genuine. Whilst some of the items chosen by winners were unrealistic and therefore clearly a joke, Ofcom notes that other requests, such as a satellite navigation system or concert tickets were not and, as such, the audience’s understanding of the competition would have largely depended on which particular edition they were listening to and whether they were regular listeners who would “get the joke”.
Further, Ofcom noted that there was no description given on air of the actual prizes awarded to the competition’s winners (CDs and DVDs); the presenter simply stated that he would send the winner “some stuff”.
Whilst Ofcom acknowledged the relaxed tone of the competition, the often irreverent nature of XFM and its significant following, it did not consider it reasonable for the broadcaster to assume that potential entrants would have always recognised the presenter’s on-air agreement to supply specific prizes as “a joke”. Ofcom therefore concluded that there were some occasions when the descriptions of both the prizes and the rules were misleading.
Ofcom noted that the competition in question had been withdrawn from the schedule. Nevertheless, it considered that XFM should make every effort to ensure that its listeners are not misled in the future by the comical nature of such competitions and that it is made clear to listeners and competition entrants what prize is actually on offer – and that the requested prizes will not be awarded. This is especially important when listeners are paying to enter a competition on the understanding that it is being conducted fairly and that the prize on offer has been described accurately.
Breach of Rule 2.11
“Middle Money”, Five US (Channel 5 Broadcasting Ltd), 21 May 2007, 01:00
Quiz Call is a late night Call TV quiz show running various competitions which viewers are invited to enter via a premium rate number (or free via the internet).
In a competition broadcast on 21 May 2007 , viewers were invited to send a text message or call a premium rate number to identify “WORDS STARTING WITH ‘S’ AND ENDING IN ‘T’”. Eleven pre-selected words were hidden under stickers on a stand in the studio. When a contestant identified a correct answer, the sticker on that word was removed. At the end of the competition, the remaining answers were revealed. By the end of the broadcast, four contestants had identified correct answers (“SUBJECT”, “SEAPORT”, “SHIPMENT” and “SUBSCRIPT”). The presenter than revealed the remaining answers including the word “SAILCLOTH”. Realising that the word did not end in ‘T’, the presenter apologised to viewers on air.
A viewer complained to Ofcom about the inclusion of the word “SAILCLOTH” as one of the answers in the competition because it does not end in ‘T’, as specified.
Five admitted that the incident had occurred, and described it as “an innocent yet stupid mistake”. Games on Quiz Call are devised by the producers and then passed to an approver to ensure the games are fair and correct. The games are then sent to Five to be signed off. On this occasion, the producer believed that the game had been reviewed and approved by Five when in fact it had not.
Five emphasised that, at the end of the competition, viewers still had the opportunity to guess the remaining six correct answers and as such no entrants had suffered financial loss. It had instructed the production company to contact everyone who had called or entered by text and offer a refund. As there were four callers who had withheld their numbers and could not be contacted, Five broadcast an on-air apology the following week, inviting any entrants who had not yet been contacted to claim a refund.
Following discovery of the error, Five revised its sign-off process for all competitions on Quiz Call by adding two additional stages of checking and approval. It said that in the future no game would be scheduled for broadcast until written approval had been received from Five. It also put in place additional checks to be made immediately prior to broadcast.
Ofcom welcomed the further compliance checks that Five had put in place and noted that Five had apologised for the error and had made extensive efforts to refund viewers who had entered the competition.
Human error had caused the inclusion of an answer which was impossible for viewers to have identified. In competitions with a number of available answers, some are likely to be more difficult than others, but it is essential that, in order to achieve fairness, all the answers are reasonable. An impossible answer is not reasonable.
Although viewers still had the opportunity to identify one of the six remaining correct answers, Ofcom believed that the number of available answers is one of the factors viewers would have been likely to have taken into account when deciding whether to pay to enter the competition. By giving the impression that there were seven answers left to be guessed, when in fact there were only six, Five conducted the quiz unfairly, in breach of Rule 2.11.
Breach of Rule 2.11
The Great Big British Quiz
“Which Signs Are Wrong?”, Five, 29 October 2006, 00:45
“Which Flags are Wrong?”, Five, 25 November 2006, 01:25
The Great Big British Quiz was a late night live Call TV quiz show running various competitions which viewers were invited to try to solve via a premium rate telephone number (or for free via the internet).
On 29 October 2006 , in a competition called “Which Signs Are Wrong?”, viewers were shown a graphic of several road signs and asked which signs were not correctly displayed. Ofcom received five complaints from viewers that this competition was not resolved satisfactorily in that a correct answer was not provided on air and, when the five “wrong” signs were revealed by the presenter, the errors on those five signs were not identified to the audience.
On 25 November 2006 , in a competition called “Which Flags Are Wrong?”, viewers were shown several national flags and asked to identify which were incorrect. Ofcom received a complaint from a viewer that the correct answer was revealed as the flag of Japan , but the complainant did not consider that there had in fact been any alteration to that flag.
Ofcom asked Five to provide comments on Rule 2.11 of the Code (competitions should be conducted fairly), and to provide details of the images that had been altered in the two competitions.
“Which Signs are Wrong?”
Five provided Ofcom with details of the alterations which had been made to the road signs. These were simple graphics and the presenter had made it clear that the signs had been altered only “slightly”. Five said that the competition had been approved by an independent promotional verification service prior to broadcast and that the graphics were magnified to full screen eight times for up to two minutes each time viewers were instructed to “look closely”. In the course of the programme, it said that some viewers identified one or more of the signs which had been altered, each of which was correctly identified on air. In addition, it stated that viewers could have deduced the correct answer by eliminating aired answers which were incorrect. However, it admitted that no viewer identified them all as a single answer. Five also accepted that one way in which the competition could have been won was by guesswork.
“Which Flags Are Wrong?”
Five explained that the official version of the Japanese flag had a height:width ratio of 2:3 with the red disc in the exact centre of the flag. The diameter of the red disk is three-fifths of the flag’s height. In the competition, the red disc had been enlarged by 5% making it larger than three-fifths of the flag’s height. It said that the competition had been approved for broadcast by an independent promotional verification service prior to broadcast.
It said that viewers were told that they would need a “keen eye” to spot which flag or flags were wrong, thereby indicating that the difference would be slight. It continued that the flags were on screen for the duration of the game and were magnified to full screen on several occasions. In addition, it stated that some contestants did correctly identify the Japanese flag as being one of the flags which had been altered. It said that given that the Japanese flag had only one element (i.e. a red disc on a white background); it was not unreasonable to believe viewers would draw the conclusion that the dimensions of the disc might have been changed. Five explained that guesswork was one possible method by which the competition could have been solved, and elimination of the aired incorrect answers was another.
“Which Signs are Wrong?”
Four of the signs appeared to Ofcom to be so indistinctly altered that it considered it was doubtful that the errors could reasonably have been detected by viewers and that any success in the competition would have had to have been largely down to guesswork.
“Which Flags Are Wrong?”
Ofcom took the view that the 5% alteration to the red disc in the Japanese flag made success in the competition largely a matter of guesswork.
In relation to the fair conduct of each competition, Ofcom judged that whilst some viewers had correctly identified the images in both competitions, this would in all likelihood have been down to guesswork. The two competitions were presented on air as being “solvable” when in fact it was highly unlikely that they could be solved through traditional means and that guesswork was the overriding factor required in each case. This was not made clear to viewers and this lack of transparency as to the methods required to solve each puzzle meant that the competitions were conducted unfairly, in breach of Rule 2.11 of the Code.
“Which Signs Are Wrong?” - Breach of Rule 2.11
“Which Flags are Wrong?” - Breach of Rule 2.11
It should be noted that Ofcom’s updated guidance for competitions (published on 23 April 2007) stated that for competitions to be conducted fairly, we believe its correct solution should be reasonable (i.e. not unfairly obscure) and certain. This applies to all competitions, including those that Ofcom judges to be dependent to any extent on factual recall and/or the application of established protocol (e.g. accepted mathematical process). However difficult or cryptic the competition itself, we would expect application of the methodology to produce only the correct solution. All methodologies should be clear, comprehensive and precise.
The Great Big British Quiz
“How Many Cats?”, Five, 16 December 2006, 01:00
The Great Big British Quiz was a late night live Call TV quiz show running various competitions which viewers were invited to try to solve via a premium rate telephone number (or for free via the internet).
On 16 December 2006 , the programme featured a puzzle in which viewers were shown a graphic of the cat with the following question:
“15 cats meet 3 cats each. Those cats all meet 25 cats and they all go for a curry! How many cats?”
Viewers were invited to call a premium rate number for a chance to answer the question. The answer was later broadcast as being 2,641. No contestant correctly identified the answer.
Three viewers complained to Ofcom, querying the validity of the answer 2,641. Ofcom asked Five for its comments on Rule 2.11 of the Code (competitions should be conducted fairly) and for the details of the methodology involved in solving the puzzle and how it was applied to reach the figure 2,641.
Five provided the methodology as requested and an explanation of how it was applied and admitted that the answer broadcast in the programme was incorrect and that it should have been 2,461. It explained that the methodology was overseen by an independent verification service and it had been correctly applied. However, at the time the game went on air its computerised “Answer Checker” system was briefly out of action due to technical problems and a sealed envelope was used instead so that the presenter could reveal the solution manually. Unfortunately, on this occasion, the production company’s Head of Content erroneously reversed the “6” and “4” when writing the answer that was inserted into the envelope. The answer was, in fact, 2,461 rather than 2,641.
Five said that it had checked the recording of the programme and confirmed that no viewer had come through to the studio with either the actual answer, 2,461, or the incorrectly stated answer, 2,641. As a consequence of no viewers having given either of the answers, Five considered that no viewer suffered any financial loss as a result of the wrong answer being transmitted. It continued that the incident was the result of an honest human error but that it had, nevertheless carried out a review of the way games and puzzles are set, checked and approved. Further checking procedures had now been implemented to ensure the answer given on air was the correct one.
Ofcom considered that the methodology to resolve the competition was accurate, explained satisfactorily and considered fair. We also noted that the incident on this occasion appeared to have arisen from human error.
However, while Five had submitted that no financial detriment had been caused to viewers as a result of the incorrect answer being broadcast, Ofcom nevertheless considered that the competition in question had not been conducted fairly. Due to the incorrect answer being placed in the envelope at the outset of the competition, the broadcast of its solution on that occasion could never have been accurate.
It is important that broadcasters understand that a perceived lack of financial harm to viewers does not necessarily mitigate the inherent unfairness resulting from the conduct of a flawed competition, particularly when viewers are paying a premium rate charge to participate. This competition was therefore conducted unfairly, in breach of Rule 2.11 of the Code.
Breach of Rule 2.11
It should be noted that in accordance with Ofcom’s updated guidance for competitions (published on 23 April 2007 ) broadcasters should ensure that however difficult or cryptic the competition itself, Ofcom would expect application of the methodology to produce only the correct solution. All methodologies should (in addition) be clear, comprehensive and precise.
The Great Big British Quiz
“Catch of the Day”, Five, 19 November 2006, 01:30
“Get Sum”, Five, 17 December 2006, 01:55
The Great Big British Quiz was a late night live Call TV quiz show running various competitions which viewers were invited to try to solve via a premium rate telephone number (or for free via the internet).
On 19 November 2006 , in a competition called “Catch of the Day”, viewers were asked to add the numbers featured on screen on three kites. Each of the kites featured letters or numbers on them; the first had the word “NINETY” with “III” written underneath, the second kite had the number “110”, and the third had the number “45” written in digital numerals (as it would appear on a calculator). Towards the end of the competition a clue was screened which stated “Answer is between 1418 – 1420!” A contestant then identified 1419 as the correct answer. However, the way in which the answer had been reached was not revealed to the audience. Ofcom received one complaint from a viewer querying the answer.
On 17 December 2006 , in a competition called “Get Sum”, viewers were asked to add the numbers in a number puzzle presented in a graphic on screen. No contestant who was put through to the studio identified the correct answer. When the competition ended the answer was revealed as 1,928, but no explanation was provided as to how the answer had been reached. Ofcom received complaints from two viewers querying the answer.
Ofcom asked Five for its comments on Rule 2.11 of the Code which states that “competitions should be conducted fairly”.
Five provided the methodology for both competitions and stated that a promotional verification service had approved the competitions prior to broadcast. It said that several types of puzzles include the words “Add the Numbers” but the design and presentation varied from game to game.
“Catch of the Day”
Five provided a detailed breakdown of how the methodology applied in this competition. It explained that to solve it, viewers had to calculate every possible number within the kites (which were also different colours i.e. red, green and blue), including: numbers within other written numbers and numbers within digital numbers. Viewers then had to add each of these possible numbers to each of the other numbers. In addition, if a kite was facing right, then all the numbers that could be made on that kite were positive numbers and, if facing left, all the numbers on that kite were negative numbers. Viewers then also had to work out the total of the numbers for the different coloured kites. Then every number from each of the kites needed to be added or deducted from the other respective kite. The final answer was the result of all these sums, plus the original numbers that could be made from each of the numbers on the kites.
Upon investigation Five accepted that there was a fault with the formula used to calculate the answer on this occasion. It said that this had not been picked up during the verification process and acknowledged it was wholly inadequate that this was the case. It continued that it was “astonished and angry” that the puzzle was not checked properly by its verification service before it was transmitted. However, it stated that in relation to the overall complexity of the puzzle it did not believe that the methodology in this case was unfairly obscure given that equally complex rule sets in other puzzles are solved by its viewers.
Five provided a detailed breakdown of how the methodology was applied in this puzzle. It said that the layout of the numbers and text in this puzzle was important and to calculate the answer viewers had to add all the possible sums from the numbers. This included numbers within numbers. All and any numbers made from roman numerals are added and any other sums that can be made that are grammatically correct were included. Upon investigation however, it was acknowledged that the roman numerals had not been included in the calculation and Five therefore accepted that an error had occurred and the correct answer was in fact 1,930, not 1,928 as broadcast.
Five said that it had checked the recording of the programme and confirmed that no caller to the studio had presented an answer of either 1,928 or 1,930 and that therefore no viewer had suffered any financial loss as a result of its mistake. It said however that it was “extremely disappointed” that the independent verification service it used had not entirely eliminated the potential for error.
Following the discovery of both of these incidents, Five decided to withdraw this style of cryptic counting game from its call TV quiz services. It provided Ofcom with details of improved measures it had put in place to ensure that in future all solutions when revealed are correct and explained where necessary.
A basic principle in the fair conduct of running a competition is to ensure that viewers are told the correct answer and the methodology used to reach the answer is consistent and applied correctly. This avoids potential financial detriment to viewers should a similar competition be run in the future. Ofcom was concerned that incorrect answers had been broadcast on two occasions as a result of the broadcaster’s reliance on an independent verification service. While Ofcom welcomed the steps Five had taken to ensure its compliance with the Code in this respect, the procedures which were in place at the time to ensure that the methodology was correctly applied had clearly failed. In addition, Ofcom considered that the methodology in each of these competitions was so obscure that they could be deemed unfair. Both competitions were therefore in breach of Rule 2.11 of the Code.
“Catch of the Day” - Breach of Rule 2.11
“Get Sum” - Breach of Rule 2.11
On 23 April 2007 Ofcom published updated guidance to Rule 2.11 which specifically addressed the explicit expectation that the correct solution to any quiz should be reasonable (i.e. not unfairly obscure) and certain. In the accompanying note to broadcasters, Ofcom stated that it did not believe it would be appropriate to find broadcasters in breach of Rule 2.11 retrospectively. Therefore Ofcom did not find either broadcast in breach of Rule 2.11 on the grounds of any obscure methodology applied in these two competitions.
Advertisements for The Politics Programme on Revelation TV and Genesis TV
Premier Christian Radio, various times between 25 April and 1 May 2008
“Alan Craig, the Christian People Alliance and Christian Party's candidate for London Mayor has seen ITV force him to re-write comments in his party election broadcast about a radical Muslim group. Join me George Hargreaves on The Politics Programme on Genesis TV and Revelation TV on Wednesday 30 April at 9pm when we ask the question: ‘Has the Christian People Alliance and Christian Party's mayoral candidate, Alan Craig, been a victim of political censorship gone bad and political correctness gone mad?’ ”.
Ofcom received a complaint from a listener who was concerned that this advertisement promoted a particular candidate in the London Mayoral election and that no other advertisements for the other candidates were transmitted.
Premier Christian Radio confirmed that the advertisement was transmitted between 25 April and 1 May 2008 - that is, during the run-up, or election period, and on the day of the election for the London Mayor as well as other occasions.
Section 321 of the Communications Act 2003 (“the Act”) prohibits political advertising. Section 2, Rule 15 of the BCAP Radio Advertising Code (“the BCAP Radio Code”) states that
- shows undue partiality in matter of political or industrial controversy or relating to current public policy; and
- is broadcast by, or no behalf of, any body whose objects are wholly or mainly of a political nature, and no advertisement is directed towards any political end”.
Premier Christian Radio cleared the advertisement though the Radio Advertising Clearance Centre (”RACC”). Ofcom wrote to the RACC and to Premier Christian Radio for their comments on how the advertisement complied with the BCAP Radio Code. All holders of Ofcom radio licences must comply with the BCAP Radio Code as a condition of their licences.
The RACC said that it considered that the advertisement was not directed towards a political end, but was rather advertising a television debate. It said that it was careful to ensure that the wording of the advertisement did not give a political view but asked a question that would be debated on The Politics Programme. The RACC said that listeners were not invited to react in a particular way, which they would if it had been directed towards a political end. It stated that the statement about ITV made in the advertisement was a matter of fact and that it was not felt that this was a political comment or a comment directed towards a political end. The RACC stated that the advertisement made no political point about the policies of the Christian Alliance Party.
Premier Christian Radio said that the advertisement had gone through the usual clearance process which it believed to be sufficient to ensure compliance of the Code. It said that the RACC had cleared the advertisement because it promoted a political discussion programme. It said that not to have cleared it would be akin to not allowing Newsnight to be advertised. Premier Christian Radio said that the advertisement took no sides in whether Alan Craig had been the victim of political censorship and political correctness, but that it directed listeners to The Politics Programme to watch the debate and to make up their own minds.
Taken as a whole, Ofcom considered that the advertisement showed undue partiality in relation to the London Mayoral election (i.e. a matter of political controversy).
While the advertisement did not call on listeners to vote for any particular candidate, it implicitly promoted the London Mayoral candidacy of Alan Craig. First, the advertisement made two references to one specific candidate in the context of the London mayoral election. Second, the advertisement clearly implied that Alan Craig had in some way been a victim of unjust treatment during the election period. Ofcom does not accept that ending the advertisement with a question changed its overall message. Finally, the advertisement was worded in such a way that it left listeners with a one-sided view of ITV’s decision to instruct Alan Craig to re-write his Party Election Broadcast as being some form of censorship without offering an alternative view point.
Ofcom notes that Premier Christian Radio cleared this advertisement before broadcast through the RACC. While the advertisement could be seen as a programme trailer, that is promoting an upcoming political programme, it also served another purpose however. By focusing so centrally on one candidate and specific issues relating to him, the advertisement became directed towards a political end. The advertisement was therefore in breach of Section 2, Rule 15 of the BCAP Code.
Breach of Section 2, Rule 15 of the BCAP Radio Advertising Standards Code
The Broadcast Committee of Advertising Practice (“BCAP”) Radio Advertising Standards Code (“the BCAP Radio Code”) is maintained and administered by BCAP and the Advertising Standards Authority (“the ASA”) under the terms of the co-regulatory agreement between Ofcom and those two bodies. Political advertising is prohibited under section 321 of the Communications Act 2003 and by Section 2, Rule 15 of the BCAP Radio Code. While the political advertising rules are set out in the BCAP Radio Code, Ofcom remains responsible for their enforcement.
The World’s Got Talent
ITV1, 6 April 2008, 19:00
ITV2, 2 June 2008, 19:00
The World’s Got Talent is a spin-off from Britain’s Got Talent and features variety performers from around the world in different international versions of the ITV talent show. The programme complained of included acts such as a man who climbed into a giant washing machine and rotated inside it as it operated, a human dartboard, a performer eating glass and another setting himself on fire as part of his routine.
Ofcom received 8 complaints from viewers who were concerned about children emulating these potentially dangerous activities. The programme was repeated on ITV2 on 2 June 2008 . This attracted one complaint from a viewer who referred specifically to clips featuring the washing machine.
Ofcom asked Channel Television (“Channel”), which complies this series on behalf of ITV1 and 2 , to comment with reference to Rules 1.3 (appropriate scheduling) and 1.13 (dangerous behaviour that is likely to be easily imitable by children in a manner that is harmful must not be broadcast before the watershed) of the Code.
Channel stated that the show aired as a prelude to the new series of Britain’s Got Talent and aimed to show how standards of entertainment vary enormously from country to country. The clips which led to complaints were all screened in the second part of the programme in a montage of “risky” stunts and performances. Channel pointed out that the section was introduced with the following guidance:
“Across the globe viewers have watched some of the world’s greatest daredevils, who push themselves to perform amazing and somewhat unspeakable acts. Are they brave? Yes. Are they all a bit crazy? Definitely. Do not try this at home!”
This was followed by another warning as the man climbed into the giant washing machine: “Do not, I repeat, do not try this at home under any circumstances”
As a man was seen spinning in a large washing machine the US show’s host, Jerry Springer, was seen looking on in a concerned manner as if fearful that the man might be in danger. Following on from the sequence of “risky” stunts, the show then included a montage of clips that showed how some of the acts had gone wrong. This was introduced with: “Some of the following stunts are so dangerous that these budding daredevils risk serious personal injury.” Channel believed that this sequence reinforced the obviously dangerous nature of the acts and the fact that they should not be attempted by the untrained.
Channel argued that the dangerous stunts section was responsibly scheduled and was suitable for a family audience. It maintained that the clips were editorially justified as they served to illustrate the cultural and social differences that The World’s Got Talent aimed to highlight to the audience. Channel stated that the 19:00 schedule had previously featured thrilling family dramas like Primeval and was a time when the very youngest children were likely to be in bed. It argued that the number of warnings alongside the brevity of the clips served to ensure a minimal possibility of imitation amongst younger viewers.
After Ofcom asked for comments on this content, the broadcaster edited this episode of the programme to exclude the washing machine sequence entirely and reduce considerably the length of the section devoted to dangerous stunts. This was to ensure that any future repeats of the episode would comply with the Code.
Rule 1.3 requires that children must be protected by appropriate scheduling from material that is unsuitable for them. Appropriate scheduling is judged by a number of factors including: the nature of the content; the likely number and age range of the audience; the start and finish time of the programme; and likely audience expectations. Audience figures for the original broadcast on 6 April 2008 show that the programme attracted a high number of children, making up almost 13% of the total audience share (624,000). A total of almost 6% or 291,000 viewers were children aged between 4 and 9.
We note the attempts the broadcaster made to alert viewers to the dangers of such behaviour through guidance, and recognise the steps it took to try to address its responsibilities in this regard. However, we do not believe that repeated warnings would be sufficient, in the case of this particular kind of material, in this particular kind of programme, and with this particular audience, necessarily to provide sufficient protection from harm - especially for the significant numbers of younger viewers mentioned.
Shown on a Sunday evening on ITV1 on 6 April 2008, a time when younger children are often allowed to stay up later than usual, the show would have appealed to family audiences familiar with Britain’s Got Talent, which had achieved high ratings when first screened in 2007. Research referred to in the Code Guidance Notes points to the fact that children are prone to emulate what they see on television and specifically points to areas of concern such as “everyday household items such as micro-waves and tumble-dryers, which can cause harm if misused”.
It is unlikely, in our view that verbal warnings or merely implied concern from the presenters (such as Jerry Springer looking concerned) would have necessarily registered with younger viewers – who, in our view, would have been attracted to and entertained by the image of a human being revolving in the porthole window of a washing machine. This may have been particularly the case here, where some of the warnings may have been lost on children, where the content was exciting, fast moving and eye catching.
Moreover, a sequence featuring such extreme routines as getting into washing machines, eating glass, people being used as a human dartboard or being set on fire would more typically be expected to feature in shows broadcast after the watershed where, at the very least, parents and carers would be alerted to the need to supervise more closely any child’s viewing.
Ofcom notes that the repeat of the episode on 2 June 2008 was on ITV2. This repeat (not being broadcast on ITV’s flagship channel and being aired on a Monday night) was not likely to attract the same number of younger viewers as the original showing in April. ITV2 is however a general entertainment channel likely to attract a significant number of children and the repeat was also in breach of the Code.
On balance, therefore, it is our view that the broadcaster, despite providing verbal warnings and featuring visual clues as to the unacceptability of the behaviour featured, failed to offer adequate protection to child viewers in this specific instance. Both broadcasts of this programme were therefore in breach of Rules 1.3 and 1.13 of the Code.
Breach of Rules 1.3 and 1.13
Drive with Dominik Diamond & Marissa
talk107 (Edinburgh and East Central Scotland), 28 March 2008, 14:00
The programme included a regular travel feature sponsored by The Travel Company Edinburgh (“TTCE”) in which a representative of the company was interviewed – in this case, about the problems at Heathrow Terminal 5. Listeners were not told that the feature was sponsored but the interviewee was credited on air as a representative of TTCE and allowed to promote specific holidays offered by the company. One of the presenters referred listeners to TTCE’s website. A listener complained that the feature “blurred the boundaries between advertising and an editorially justified travel feature.”
We therefore asked talk 107 to comment on the following Rules of the Code:
9.4 A sponsor must not influence the content and/or scheduling of a channel or programme in such a way as to impair the responsibility and editorial independence of the broadcaster.
9.5 There must be no promotional reference to the sponsor, its name, trademark, image, activities, services or products or to any of its other direct or indirect interests. There must be no promotional generic references. Non-promotional references are permitted only where they are editorially justified and incidental.
9.6 Sponsorship must be clearly identified as such by reference to the name and/or logo of the sponsor. For programmes, credits must be broadcast at the beginning and/or end of the programme.
9.7 The relationship between the sponsor and the sponsored channel or programme must be transparent.
UTV Radio, which owns talk 107, accepted that the broadcast raised issues under Section 9 of the Code concerning transparency, separation and editorial independence. It said that all promotional references were removed from subsequent broadcasts as soon as it became aware of the complaint and added that the sponsorship arrangement had ended on 30 May 2008 and that the feature was no longer being broadcast.
UTV said that the Station Director and Acting Programme Manager had taken steps to avoid recurrence and ensure future compliance with Section 9 of the Code. All producers, presenters and sales staff had been briefed and a training programme concerning sponsorship had been initiated for new starters.
UTV confirmed to Ofcom that the programme was sponsored by TTCE. However, this information was not appropriately conveyed to listeners in breach of Rule 9.6 and 9.7 of the Code. Transparency is a fundamental principle of commercial references in editorial. The audience must be made aware of any commercial arrangement between the broadcaster and a commercial third party.
The travel feature clearly promoted TTCE’s (the sponsor’s) products and services (i.e. its website, ttce.com, and holidays, such as a 2 bedroom mobile home in Blackpool for 4 nights from 7 April 2008 , reduced from £265 to £109). The item also featured a representative of the sponsor, who was credited as a TTCE employee on air. The feature was therefore in breach of Rule 9.5 of the Code.
It also appeared to Ofcom that the sponsor (TTCE) had been permitted to influence the travel feature’s content on a regular basis. The broadcaster had ceased to take effective responsibility for its output and ceded editorial independence by allowing the sponsor regularly and repeatedly to promote its products and services, in breach of Rule 9.4 of the Code.
We welcome the action taken by UTV to avoid future recurrence. However, this particular output highlighted a repeated compliance failure since the item was featured weekly. Ofcom is concerned that programming so clearly in breach of the Code remained on air until we had alerted UTV to this complaint.
This case represents a serious lapse in talk 107’s compliance and Ofcom may consider further regulatory action in the event of any similar breaches.
Breach of Rules 9.4, 9.5, 9.6 and 9.7
Graham Torrington’s Late Night Love
SGR Colchester (Colchester), 22 April 2008, 22:00
During this late night phone-in concerning personal relationships, the presenter promoted his internet dating site, hatebeingsingle.com, when he said:
“If you are single and looking for love, my new internet dating site, hatebeingsingle.com, has over five million users on there. If that’s you, and you don’t like being single, let’s see if we can sort out a new partner for you or just somebody to be a friend to. Hatebeingsingle.com has five million users, so get yourself registered right now. And if you’re a single parent or if you’re over forty, there’s two new special sections on there. So get yourself registered on hatebeingsingle.com…”
A listener claimed that the site was a commercial operation and that the presenter’s repeated references to it (as above) were not therefore editorially justified.
Section 10 of the Code concerns, among other things, commercial references in
programmes. Rules 10.3 and 10.4, respectively, prohibit the following in programming:
- the promotion of products and services; and
- undue prominence being given to products and services.
We asked for the broadcaster for its comments with regard to these Rules.
GCap Media plc, which owned SGR Colchester at the time of broadcast, acknowledged that the presenter had promoted his own franchise (the website, www.hatebeingsingle.com) within programming. It added that the presenter had not sought SGR’s consent to do so before the broadcast and that, if he had, it would have been refused. GCap acknowledged that the presenter’s comments breached the Code and apologised for the broadcast.
GCap said that the presenter had been made aware of the seriousness of the matter and added that SGR’s Programme Controller had taken steps to prevent recurrence, which included “strengthened guidelines alongside increased monitoring.” GCap said that it takes its “obligations relating to the Ofcom Broadcasting Code extremely seriously and issues regular guidance to its radio stations and radio station personnel.”
The Code prohibits the promotion of goods and services in programming. In this case, a dating website – a commercial product/service – was clearly and actively promoted on Graham Torrington’s Late Night Love. This was in breach of Rule 10.3.
While Ofcom recognises that the programme concerned personal relationships, the manner in which the presenter referred to his own business was overtly promotional and therefore lacked any editorial justification. The result was that “undue prominence” was given to the presenter’s website, in breach of Rule 10.4.
Breach of Rules 10.3 and 10.4
Lucky Star, 11 & 26 July 2007, 21:00
Sex Station is free-to-air unencrypted programming on Lucky Star channel. The channel is listed in the adult section of the Sky electronic programme guide (“EPG”). It broadcasts programmes based on interactive ‘adult’ chat services: viewers are invited to contact on-screen presenters (“babes”) via premium rate services (“PRS”). The female presenters dress provocatively and encourage viewers to contact them.
While monitoring the output of channels within the ‘adult’ section of the Sky EPG, Ofcom found material broadcast in Sex Station on the 11 July 2007 t hat included some explicit images featuring, in particular, apparent female masturbation. The presenters and viewers’ texts also used some explicit sexual language, such as (at 21:08 ), “We want a paddling pool filled with your hot, horny man-muck” and a viewer’s text (at 21:43 ) saying, “Tammy would you punish me if I didn’t lick your fanny good enough?”
Ofcom asked Lucky Star to comment on the broadcast under the following Code Rules:
- Rule 1.2 (the broadcaster must take reasonable steps to protect under 18s);
- Rule 1.24 (‘adult-sex’ material is restricted to overnight encrypted services);
- Rule 2.1 (the broadcaster must apply generally accepted standards); and
- Rule 2.3 (offensive material must be justified by context).
While our investigation was underway, Ofcom received a complaint concerning similar output on 26 July 2007 . We noted in particular that during this output a frank sexual discussion took place from 21:00 to 21:10, which included such language as, “I’m looking for a dirty man who’s going to make me cum everywhere”, and, “I reckon you guys should spunk all over that [i.e. a presenter’s white bodice]. Cover her up with white”.
Ofcom therefore asked Lucky Star to comment on the broadcast under the same Rules of the Code, as above.
In response to our request for comment concerning the monitored output on 11 July 2007, and with reference to Rule 1.2 of the Code, Lucky Star said that Sex Station appears post watershed, with an ‘18’ warning and within the ‘adult’ section of the Sky EPG. It added that the presenters are instructed to moderate their language nearer the watershed and that, while the programme is live, viewers’ texts are “heavily moderated prior to being put to screen and acutely rude words are not allowed.”
In respect of Rule 1.24 in particular, the broadcaster did not believe the language used on 11 July 2007 made the output ‘adult-sex’ material. It added that such language was “in common currency and in use by persons younger than age 18” and its primary purpose was not sexual arousal or stimulation.
With Rules 2.1 and 2.3 in mind, Lucky Star added that viewer texts often include stronger language and “substantial moderation is used.” The broadcaster acknowledged that the viewer texts quoted by Ofcom had been moderated and added that, after “careful reflection”, it was making every effort to ensure that all language, including that of the presenters, was less graphic in future.
In response to our request for comment concerning the output on 26 July 2007 Lucky Star apologised for the discussion broadcast, “not only because it was so close to the watershed but because it contained language of a strength which would not, under normal circumstances, be broadcast [in] this programme at all.”
While not wishing to detract from its apology, the broadcaster added that the channel was experiencing technical difficulties on the night – as evidenced by periods in which the screen went blank – and “the programme producer distinctly remembers informing the presenters that they were not going on air.” In conclusion the broadcaster said that, since this unfortunate incident, the content of the show had been changed dramatically and that “careful note [had…] been taken of Ofcom’s concerns regarding ‘babe’ type content.”
Ofcom notes that the programmes were broadcast with a warning, post-watershed and on a service operating within the adult section of the Sky EPG. We also note that the broadcaster chose not to comment on the visual content of the material broadcast.
Ofcom judged that much of the material broadcast after 21:00 was sexually explicit, as regards both the images (in particular, apparent masturbation) and language. This content had insufficient editorial or contextual justification to allow its exceptional transmission unencrypted on free-to-air television. For these reasons this content was in breach of Rule 1.24, which requires such material to be encrypted and restricted to broadcast after 22:00. We acknowledge Lucky Star’s policy of allowing only moderated language closer to the watershed and we recognise that technical difficulties appear to have occurred on 26 July 2007. Nevertheless, in both programmes the broadcaster included much stronger language than Ofcom considers suitable for broadcast so soon after the 21:00 watershed.
The broadcasts were therefore in breach of Rules 1.2 and 1.24 of the Code.
Ofcom welcomes Lucky Star’s apology concerning the language broadcast on 26 July 2007. Nevertheless, t his content was sexually explicit and unsuitable for free-to-air television. It was therefore also in breach of generally accepted standards to ensure adequate protection for viewers in general from harmful and/or offensive material. In Ofcom’s opinion, factors such as this channel being in the ‘adult’ sector of the EPG and the content being broadcast after 21:00 did not justify the broadcast of this material.
Ofcom has issued sufficient information, in the form of findings and guidance, for broadcasters within the ‘adult’ section of the EPG to know that special care is required when assessing what material is likely to be acceptable on unencrypted services. In this case, Lucky Star failed to apply generally accepted standards to ensure that viewers were adequately protected from the broadcast of offensive material.
The broadcasts were therefore in breach of Rules 2.1 and 2.3 of the Code.
Lucky Star was unaware of Ofcom’s concern about the programme it broadcast on 11 July 2007 before it broadcast the programme on 26 July 2007 (about which we received the complaint). We therefore welcome the broadcaster’s decision to moderate the content of the programme after being alerted to our concerns. It is a fundamental responsibility of any broadcaster to ensure that its viewers are adequately protected against the inclusion of harmful or offensive material in its output.
Ofcom regarded these breaches of the Code as serious and considered whether to recommend this case for consideration of a statutory sanction. Taking into account all the relevant circumstances however (including the broadcaster moderating its output on being made aware of Ofcom’s specific concerns, its apology and its previous compliance record), Ofcom decided on balance not to pursue a sanction on this occasion. However, any further breaches of this nature by Lucky Star are likely to result in Ofcom considering the imposition of a statutory sanction.
Breach of Rules 1.2, 1.24, 2.1 and 2.3
House of Fun
House of Fun, 26 July 2007, 22:00 and 29 August 2007, 23:00
House of Fun is a free-to-air unencrypted channel. The channel is listed in the adult section of the Sky electronic programme guide (“EPG”). It broadcasts programmes based on interactive ‘adult’ chat services: viewers are invited to contact on-screen presenters (“babes”) via premium rate services (“PRS”). The female presenters dress provocatively and encourage viewers to contact them.
Ofcom received two complaints that the channel broadcast material that featured explicit images in particular apparent female masturbation.
Ofcom viewed recordings of the material broadcast on the above dates and noted that the content contained images of the presenters engaged in acts of an apparently explicit sexual nature including:
- various shots of presenters with their hands in their underwear appearing to masturbate;
- two presenters licking another presenter’s breasts while they had their hands inside the first presenter’s underwear, appearing to masturbate her; and
- two of the female presenters removing their underwear and, while the picture was pixelated, appearing to masturbate.
Ofcom asked House of Fun Television Limited (“House of Fun TV”), which holds the licence for House of Fun to comment on how the content complied with the following Code Rules: 1.24 (‘adult-sex’ material); 2.1 (generally accepted standards); and 2.3 (material that may cause offence must be justified by context).
The broadcaster stated that the primary purpose of the broadcasts was to entertain. It said that the fact that numerous callers phoned in simply to chat to the presenters in a harmless and non-sexual manner, although there were other callers who had “a more racy bias to their conversation.” This indicated that the purpose of the broadcasts was not to arouse or stimulate sexually, but to stimulate an interaction between the presenter and the off-screen caller.
House of Fun TV said that great care was taken to ensure that there was no real masturbation was broadcast, although undoubtedly there was “posturing and gesturing with hands in the vaginal regions and on the upper thighs of the presenters”. The broadcaster stated that suggestion, innuendo, titillation were all part of the presenters’ performances. It stated that from a purely visual point of view, a pixelated image is a pixelated image and an overexcited viewer may imagine many things, but the reality is that the image was pixelated and nothing inappropriate was broadcast which could be identified.
The broadcaster stated that House of Fun was broadcast in the ‘adult’ section of the EPG and viewers expected its content to be appropriately ‘adult’ in this context. The programme, although entertaining, contained scenes of nudity, and parodied, in a light-hearted way, acts of sexual fantasy, eroticism and society's sense of decency.
Ofcom notes that the programmes were broadcast with a warning, post-watershed and on a service operating within the adult section of the Sky EPG.
Ofcom judges that the material broadcast was visually sexually explicit, in particular the apparent masturbation. This content had insufficient editorial or contextual justification to allow its exceptional transmission unencrypted on free-to-air television. For these reasons this content was in breach of Rule 1.24, which requires such material to be encrypted and restricted to broadcast after 22:00.
Under the Code ‘generally accepted standards’ must be applied to the content of programmes (Rule 2.1). In applying these standards, broadcasters must ensure that material which may cause offence is justified by context (Rule 2.3). Context can include such factors as the editorial content of the programme, the channel on which it is shown and the time of broadcast, and the expectations of the likely audience.
This content was sexually explicit and unsuitable for free-to-air television. It was therefore also in breach of generally accepted standards to ensure adequate protection for viewers in general from harmful and/or offensive material. In Ofcom’s opinion, contextual factors such as this channel being in the ‘adult’ sector of the EPG and the content being broadcast after 23:00 did not justify the broadcast of this material.
Ofcom therefore found that Rules 1.24, 2.1 and 2.3 of the Code were breached.
Ofcom has issued sufficient information, in the form of findings and guidance, for broadcasters within the ‘adult’ section of the EPG to know that special care is required when assessing what material is likely to be acceptable on unencrypted services. In this case, House of Fun failed to apply generally accepted standards to ensure that viewers were adequately protected from the broadcast of offensive material.
These were serious and repeated breaches of the Code. Ofcom reviewed whether the matter should be referred to the Content Sanctions Committee (the “Committee”) for consideration of a statutory sanction. However, taking account of all the relevant circumstances, including that no explicit language was transmitted, the late time of the broadcasts and the fact that monitoring by Ofcom showed subsequent improvements in compliance, Ofcom decided that, on balance on this occasion, the matter would not be referred to the Committee. Should there be further breaches of a similar nature however by this Licensee, it is likely that the contraventions of the Code will be referred to the Committee.
Breaches of Rules 1.24, 2.1 and 2.3
Big Brother: Celebrity Hijack
E4, 25 January 2008, 21:00
Big Brother: Celebrity Hijack was first broadcast in January 2008 and was a variation on the theme of Big Brother. In Celebrity Hijack, the role of “Big Brother” was assumed by a different celebrity each day and, at various stages of the programme, viewers were invited to vote using premium rate services (“PRS”) to determine which ‘housemate’ was evicted.
The penultimate episode of this series featured a “double eviction” where six out of the eight remaining housemates faced the public vote and viewers were asked to vote for who they wanted evicted from the house.
A viewer contacted Ofcom alleging that whilst on-screen information stated that viewers were voting to ‘evict’, on two occasions the programme’s presenter said “the two housemates with the least amount of votes” would be withdrawn from the show. The complainant argued that if viewers were ‘voting to evict’ then the two housemates with the ‘most votes’ should have been leaving the house.
Ofcom asked Channel Four, the owner of E4, for its comments under Rule 2.2 of the Code which states that “factual items must not materially mislead the audience”.
Channel Four acknowledged that the information given by the presenter contradicted the on-screen instructions (“vote to evict”) seen several times during the programme. It said that it regretted the incident and attributed the oversight to a scripting error. However, it continued that that this error was outweighed by the occasions that viewers were informed both visually and verbally that their vote was “to evict”. It also added that, aside from the final show, Big Brother generally follows the principle of voting to evict and that viewers would be aware of this.
Channel 4 said that to ensure complete transparency, a statement was posted on its website the following day explaining the circumstances. The statement also confirmed that the position of the two housemates who were actually evicted did not alter while the programme was being broadcast and Channel 4 provided Ofcom with voting statistics to confirm this.
Ofcom judged that the directions of how to vote that were shown on screen and explained by the presenter were, on two occasions, contradictory and were therefore potentially misleading to viewers. In addition, as voting involved viewers calling a premium rate number, there was also the potential for material harm as a consequence of the two errors that occurred. However, Ofcom accepted that the programme did, and historically always has, generally instructed viewers to vote to evict and considered that it was therefore unlikely that any significant harm was caused by these two mistaken references by the presenter. Moreover, having assessed in detail the voting data supplied by Channel 4, Ofcom could find no evidence that voting patterns were affected during the programme as a result of the errors and therefore the correct result, reflected by the voting, was achieved.
In conclusion, Ofcom welcomed the broadcaster’s swift public acknowledgement of the problem and the steps it took to clarify the matter with its viewers and considers the matter resolved. However, broadcasters are urged to be aware at all times of the importance of the accuracy of scripts that include ‘calls to action’ and particularly where premium rate charges are involved. In addition, live broadcasts which use audience participation and voting should be responsibly monitored as they are transmitted by appropriately trained personnel so that any ‘live’ mistakes can be brought to the attention of viewers at the earliest opportunity and preferably in the same programme.
F1: Canadian Grand Prix Live
ITV1, 8 June 2008, 17:05
Ofcom received 14 complaints about ITV1’s coverage of the Formula 1 Canadian Grand Prix. The complaints concerned the use of the word “pikey” by commentator Martin Brundle, during a ‘grid walk’ interview with Bernie Ecclestone. Martin Brundle asked Mr Ecclestone: "There are some pikeys out there putting some new tarmac down at Turn 10 apparently. Are they out of the way yet?” The complainants objected that the word was offensive and racist towards the travelling community.
Ofcom asked ITV to respond to the complaints with regard to Rule 2.3 (generally accepted standards).
ITV responded that during ITV1’s live F1 coverage presenter Martin Brundle’s ‘grid walk’ interviews are unscripted and spontaneous. It confirmed that the interview with Mr Ecclestone on this occasion did include the use of the term “pikey” and accepted that the term is regarded by some viewers as offensive due to its origin as a derogatory term for Irish Travellers. However, ITV also felt that the word is used more widely today as a non-specific but admittedly derogatory term.
ITV emphasised that in the context in which the term was used in the programme there was no intention for it to have been interpreted as referring to the travelling communities (whether Travellers, Gypsies or Roma). It stated that Martin Brundle was unaware of the potential racial or ethnic connotations and in no way intended the remark to be understood as derogatory towards Travellers. The broadcaster added that Mr Brundle sincerely regrets any offence the remark may have caused. ITV also pointed out that during the course of his career as a commentator, racing journalist and driver, Martin Brundle has never received any criticism of this nature before.
In response to the error and subsequent complaints the ITV Press Office issued an apology to any viewers who were offended by the comment and also apologised for any offence to the 22 viewers who contacted its Duty Office. The broadcaster has also provided compliance advice to the production team and the presenter in relation to potentially offensive language.
Ofcom notes ITV’s acknowledgement of the potential offence the word “pikey” can cause to some viewers and the compliance measures taken in response to this incident. It welcomes the apologies issued by its Press Office and directly to individual complainants. In view of these actions, Ofcom considers this matter resolved.
The Nathan Caton Show (Short Cut)
Paramount Comedy 2, 14 May 2008, 15:58
A viewer complained about a short comedy sketch from The Nathan Caton Show which appeared between programmes. This featured comedian Nathan Caton as a caricature of a streetwise teenager having a car makeover, and included the character saying, “It’s supposed to pimp my ride, not shit my ride”, “Is that fuchsia red? That’s fucked up black”. The viewer believed it was not appropriate to show this material at this hour.
Ofcom asked Paramount for its comments against Rules 1.14 ( the most offensive language must not be broadcast before the watershed ) and 2.1 and 2.3 (generally accepted standards) of the Code.
Paramount Comedy apologised and explained that the programme was originally reviewed and allocated to Paramount 1 for scheduling after 22:00 , but due to human error was made available on both Paramount Channels with no restriction. Paramount advised that it has updated its systems to prevent any similar recurrence.
The Code requires broadcasters to avoid the most offensive language before the watershed, and when broadcasting offensive language to take into account frequency and context. Ofcom notes that this compliance mistake was the result of human error, is an isolated case, and that Paramount has taken steps to ensure such mistakes do not recur .
Ofcom also took into account that this occurred on a niche station aimed at a predominantly adult audience and at a period when viewing figures indicate no children were watching. We therefore consider the matter resolved.
The full document is available below