Broadcast Bulletin Issue number 118 - 29|09|08
Taggart, The Work of Mad Men, LivexxxBabes, “Getting under the skin of a famous celebrity” competition, Cinema give-away competition, CSI: Crime Scene Investigation, Trailer, News, Mortgage and Finance, Scrolled promotion of live tarot reading, PK’s Afternoon Drive, Ax Men & Complaint by Southwark Council
ITV1; 20, 21, and 27 May, and 3, 4 and 5 June (six episodes); 15:30
Taggart, the long running and well-known murder crime drama series involving a team of Glasgow police detectives, was originally scheduled on ITV1 at 21:00.
During the repeat run of the series in an afternoon slot, Ofcom received 13 complaints, across six separate episodes, expressing concern about extremely violent acts being shown at a time when children could be watching. These included: characters being set on fire; self immolation; a man being shot in the head at close range; a bottle smashed in a man’s face to kill him; bleach forced down a struggling victim’s throat; a man beaten up, a murder with a blowtorch and a heavily charred face shown after the attack; and scenes where characters were stabbed or suffered knife wounds. Ofcom noted that there had been little or no programme information regarding the content provided to the audience before the programmes commenced.
Ofcom wrote to STV, who complied this programme for ITV1, for its comments. We asked for comments under Rules 1.3 (children must be protected by appropriate scheduling), 1.11 (violence must be appropriately limited) and 2.3 (material which may cause offence must be justified by the context) of the Code.
STV replied that when it was asked, at what it described as “short notice”, to provide episodes of Taggart for the afternoon slot on ITV1, it very carefully considered the transmission time, the overall scheduling, likely audience expectations and the subject matter. It said that since ITV1 ceased its weekday children’s programming in 2006, the afternoon timeslot had been filled with programmes aimed at adult viewers, in particular crime drama. Therefore, STV said it believed the audience would be largely aware of the format and style of Taggart, in that every episode contains at least one murder, and parents’ expectations would be informed by the programme title itself.
STV confirmed that some episodes of Taggart were considered unsuitable for an afternoon timeslot because of the subject matter. For the episodes that were shown, the broadcaster said the programme was edited to reduce the levels of violence. Overall, STV considered the low level of the child audience – over the afternoon repeats, an average 2% of viewers to the programme were children – indicated that the programmes had been appropriately scheduled.
STV pointed out that the sequence where a man set himself alight could not be edited out entirely for reasons of continuity. In retrospect, it considered that this episode was inappropriate for broadcast in the afternoon.
STV acknowledged that the scene where a woman was forced to swallow bleach “might have” exceeded audience expectations and that viewers may have been taken by surprise by the amount of blood shown in a sequence where a detective was stabbed in the arm. Overall, however, it believed that the episodes broadcast had been edited to ensure that any scenes of violence were appropriately limited and were suitable for a well-known crime drama.
STV also pointed out that, after being informed of the complaints and even before responding to Ofcom, it decided to cease all broadcasts of Taggart before the watershed.
In principle, material which has been originally aired after 21:00 can be broadcast during the day and comply with the Code, provided any necessary edits have been made or other necessary measures taken to ensure it is appropriate for a daytime audience, which may include children. Therefore, in accordance with Rule 1.11 , while violence may be shown before 21:00, broadcasters must be mindful that such acts must not be unduly graphic or prolonged.
Taggart is an uncompromising and hard-hitting drama that regularly deals with more challenging adult subject matter and often portrays disturbing murders in a frank and unflinching manner. Given that Taggart is a much “grittier” drama than for example Midsomer Murders, very careful contextualisation and editing were clearly essential to ensure the programme was appropriate for an afternoon timeslot, as STV has acknowledged.
In coming to its decision, Ofcom noted that, whilst the programme on 27 May 2008 gave some information about content before transmission (“it’s a grisly trail of murder for the Taggart team”) other episodes had little (e.g. on 3 June 2008: “DCI Burke’s in mortal danger in Taggart”) or no information provided by the broadcaster.
Whilst noting that STV had sought to make these episodes suitable for afternoon transmission, it is Ofcom’s opinion that the depictions of violence and its after-effects, in the scenes complained of, were too explicit and not appropriately limited. Ofcom notes the acknowledgement by STV that the sequence where a man sets fire to himself was not appropriate for an afternoon slot. However, Ofcom is also of the view that the other scenes featured in the episodes complained about included excessive depictions of violence and its after-effects and were therefore in breach of Rule 1.11.
These scenes included:
- a character being shot in the head at close range. This did not show any blood but the sound effect occurred immediately the gun was placed on the man’s temple and was so loud that viewers would have been in no doubt as to the brutality of what had occurred. A second shooting in the same episode showed the victim hit in the chest by gunfire and falling backwards followed by the gurgling sound of his death throes (21 May 2008);
- a struggling victim who had bleach forced down her throat by the murderer and a bottle being smashed in a man’s face to kill him (27 May 2008);
- two characters being shot, one fatally, with blood clearly visible (3 June 2008);
- the charred remains of a man murdered with a blowtorch and a man hanging upside down with his fingers cut off (4 June 2008) ; and
- a policeman being stabbed in the shoulder and blood pouring from his wound. (5 June 2008).
Several other sequences (21 May 2008, 27 May 2008, 4 June 2008 and 5 June 2008) showed the result of characters having been stabbed, shot or strangled. Although the moment of death was not shown, the cumulative effect of these sequences was in Ofcom’s view unrelenting.
Ofcom recognises that these programmes were aimed primarily at an adult audience and that in order to reflect real life they included challenging material. However, given the afternoon scheduled slot, when children were likely to be viewing, the content needed to be treated with particular care. In Ofcom’s view the violence was not appropriately limited for the afternoon slot and contained harrowing and brutal scenes across the six episodes we investigated and it was not justified by the context. It was therefore in breach of Rule 1.11.
Rule 1.3 requires children to be protected from unsuitable content by appropriate scheduling. Broadcasters must make decisions before a programme has been broadcast, as to the number of children likely to watch, to inform their decision as to whether it is appropriately scheduled. In this case, given that Taggart was scheduled to be broadcast at 15:30, it was, in Ofcom’s opinion, likely that a certain number of children would be watching, some unaccompanied by an adult, especially since ITV1 is a flagship general entertainment channel. This has been confirmed by the final audience figures. An average of approximately 15,000 children (under 15 year olds) watched each of these episodes of Taggart. Ofcom further notes that at the times when Taggart was broadcast the total number of children watching all television was about 1 million. Therefore, although children formed a small minority of the audience of Taggart, there were a not inconsiderable number overall who watched the episodes complained of and a large number who were available to view.
Given the violent and often brutal nature of the images shown, Ofcom believes the 15:30 timeslot provided insufficient protection to children. The programmes complained of were in breach of Rule 1.3.
Whilst Ofcom notes the desire of ITV1 to move away from children’s programming in some of its afternoon timeslots towards crime drama, audiences do not expect inappropriate material to be shown at this time. We acknowledge that STV made some edits to the episodes complained of. Its argument that some inappropriate sequences were not edited out completely because this would have interrupted the continuity of the programme, but that nonetheless the relevant episode was suitable for broadcast, is not acceptable. Such an episode in Ofcom’s view may simply not be appropriate for broadcast in the afternoon.
The graphic and brutal nature of the violent scenes shown in the episodes investigated and discussed above, and their lack of contextual justification, particularly given the afternoon timeslot, resulted in these scenes exceeding audience expectations. It is Ofcom’s view that the violence in these episodes went beyond generally accepted standards for an afternoon drama, and was not justified by the context. Rule 2.3 was also breached as a result.
Breach of Rules 1.3, 1.11 and 2.3
The Work of Mad Men
Red TV, 11 July 2008, 19:55 (repeated 12 July 2008, 11:30)
Red TV is a general entertainment channel focusing on factual programming. The Work of Mad Men is an entertainment series, featuring bizarre and amusing advertisements from around the world. The episode complained of included an advertisement from Holland for an English language institute called ‘Soesman Language Training’. The advertisement showed Dutch-speaking parents in a car with their children listening to a pop song in English. The lyrics of the song contain repeated use of the phrase “I want to fuck you in the ass” – which the children appeared to understand and giggle over but their parents failed to comprehend.
Ofcom received two complaints from a viewer who was concerned by this broadcast of offensive language before the watershed and the repeat broadcast of the episode.
Ofcom asked Red TV for its comments under Rule 1.3 (children must be protected by appropriate scheduling from material that is unsuitable for them) and Rule 1.14 (the most offensive language must not be broadcast before the watershed).
Red TV acknowledged that the clip should not have been broadcast before the watershed. It stated that the offensive language had not been spotted by its compliance staff. This was due, it said, to its team being largely made up of people from outside the UK who have a lack of understanding regarding issues relating to the watershed. In response to the complaints, Red TV stated that it has taken steps to issue guidelines to its compliance team to ensure they understand what can be broadcast prior to 21:00 . Red TV also said that it has withdrawn the series from production, planned an on air apology to be broadcast and taken other steps to improve its compliance procedures.
Rule 1.14 of the Code states that “the most offensive language must not be broadcast before the watershed or when children are particularly likely to be listening”. The broadcast of the word “fuck” six times within the advertisement complained of, when children were likely to be viewing, was clearly unacceptable.
Ofcom was also concerned that the programme was repeated the next day at 11:30 on a Saturday morning and that such strong language was not picked up by Red TV’s compliance procedures.
While Red TV broadcast an apology, and has given assurances of improved compliance, Ofcom is concerned that the compliance procedures in place were clearly insufficient when these items were broadcast. Broadcasters must have in place robust procedures and appropriate staff to ensure compliance with the Code.
The programme was therefore in breach of Rules 1.3 and 1.14.
Breach of Rule 1.3 and 1.14
LivexxxBabes, 8 June 2008, 21:00–03:00
LivexxxBabes is free-to-air unencrypted programming in the adult section of the Sky electronic programme guide (“EPG”). The channel broadcasts programmes based on interactive ‘adult’ chat services: viewers are invited to contact on-screen presenters (“babes”) via premium rate telephony services (“PRS”). The female presenters dress and behave provocatively.
Ofcom received a complaint alleging that the broadcast amounted to ‘adult-sex’ material within the meaning of Code Rule 1.24 and therefore should have been transmitted in line with that rule’s requirements, including encryption. In particular, after 22:00 there was constant nudity and a voiceover periodically referred to “mutual tommy-tanking”.
Ofcom viewed the material. It noted that between 21:00 and 22.00 the presenters were dressed in a relatively modest way. After 22:00 however the presenters bared their breasts and for the rest of the broadcast performed in an overtly sexual manner, including thrusting their backsides to camera so that on occasion their anal area was showing.
Ofcom sought comments from the Licensee in respect of Rules 2.1 (generally accepted standards must be applied) and 2.3 (offensive material must be justified by context) of the Code.
The broadcaster replied through the Participation Television Broadcasters Association (“PTVBA” or “the Association”). The PTVBA is a not-for-profit trade association that represents a number of licensees from various participation TV sectors, including ‘adult’ chat TV channels like LivexxxBabes.
The Association said that it did not believe that the content on LivexxxBabes posed any risk of harm and offence. It pointed out that LivexxxBabes is situated within the ‘adult’ section of the EPG and stated that the broadcaster observes the Association’s guidance on graduation of content, “namely that presenters should not remove their tops until after 9.30pm, when partial nudity (i.e. topless females) is more widely accessible on satellite television, including in the general entertainment section.” The Association did not believe that there was any question of a Code breach and, further, that if Ofcom recorded a breach it would represent a significant move away from Ofcom’s current policy and enforcement activity that would necessitate unequivocal notification to stakeholders.
In respect of the presenters’ anuses being apparent, the Association said that it did not believe that one shot could reasonably be considered as amounting to a contravention of the Code.
The PTVBA referred to a number of other matters they considered to be mitigating factors:
- the complaint, it understood, was not made by a member of the public;
- the PTVBA seeks to co-operate with regulators, among others, to ensure compliance with rules and offer safe viewing. The PTVBA said that it had produced a film to be played on all members’ channels demonstrating how to impose parental controls on the entire adult section of the EPG; and
- members of the PTVBA have put in place internal procedures to ensure compliance with its principles, including complaint handling and staff training.
It is a requirement of the Code that content which is considered to be ‘adult-sex’ material must be PIN protected and encrypted (Rule 1.24). In this case, Ofcom did not consider the content complained of to be ‘adult-sex’ material. This decision was reached taking all the relevant circumstances into account, including the sexual explicitness and nature of the images (including such factors as their length and editing) and language, the purpose of broadcasting this material and the overall context in which it was broadcast. In particular, although clearly material of a sexual nature, the programming did not include simulated or real genital stimulation and contact between presenters was avoided.
However, in this case the presenters were wearing thongs and while they thrust their bottoms towards the camera there were a few, brief occasions when their anal areas were shown in intrusive detail. The location of the channel in the ‘adult’ section of the EPG and late transmission were not sufficient to justify these aspects of the content. This, in Ofcom’s opinion, was so revealing as to be offensive and in breach of generally accepted standards on a free-to-air channel in the adult section of the EPG.
The broadcaster, and all others operating in the free-to-air ‘adult’ chat sector, should take great care with physically invasive shots, particularly of the crotch and backside, and where strong visual emphasis is placed on breasts and bottoms, for example by prolonged or extreme close-up, in order to remain compliant with the Code.
Breach of Rules 2.1 and 2.3
“Getting under the skin of a famous celebrity” competition
The Breakfast Show, Mercia FM, 30 April 2008, 06:00
On 2 May 2008, GCap Media (“GCap”), the owner of the local radio station Mercia FM, contacted Ofcom stating that a problem had occurred with a listener competition. On this occasion, a technological fault meant that the production team could not retrieve any texts that had been submitted by listeners. As a consequence, the presenter called her neighbour and put her on air as the winner.
Ofcom asked GCap about the conduct of the competition with regard to Rule 2.11 which states that “competitions should be conducted fairly”.
GCap confirmed that the competition was held on 30 April 2008 between 08:30 and 08:55 and that the prize was a skin care kit. To win the prize, a well known actress was impersonated on air and listeners had to identify the actress in question. In order to enter the competition, listeners had to text “ mercia healthy” to the text number 82122.
GCap explained that Mercia FM uses a text service called ‘Flytext’ which collates all text based entries that are received. On this occasion however, the system developed a technical fault where the computer screen which should have shown all of the entries received from listeners went blank. As the entries were not visible, the presenters in the studio were unable to select a winner so one of the presenters contacted her neighbour and put her on air as the winner of the competition.
The presenters and the producer of the show reported what had occurred to their immediate superior, the Programme Controller, who brought the matter to the attention of the Managing Director of Mercia FM. Subsequently, an on-air apology was transmitted and also published on Mercia FM’s website which stated:
“…A technical problem occurred which meant that competition entries didn’t get through to the studio. As a result, we put to air a stand-in caller who had not entered the contest. This was a grave mistake on the part of the presenters, and Mercia has taken the decision to take the presenters off air with immediate effect. We would like to apologise unreservedly for this. Everyone who entered on Wednesday will be put in a draw, and one person will be picked at random to win the prize”.
GCap continued that the competition received 87 entries in total and that the cost of each entry was a text message charged at the sender’s standard text message rate. It explained that the Flytext system was capable of identifying the details of the entrants, all of whom were put into a new draw on Friday 2 May 2008. A winner was chosen at random and the original prize that had been on offer was awarded.
GCap said that the presenters “made an error by inventing a winner instead of being honest with their listeners”. Both presenters were employed under freelance contracts and the producer was an employee of Mercia FM. As soon as the events came to light, the contracts of the two presenters were terminated and the employee was suspended. At a subsequent disciplinary hearing the employee was dismissed. GCap said that this action was “consistent with the facts of the case, to re-instil trust with [its] listeners, to apologise to them” and to remedy the situation accordingly. It also confirmed that its legal department had issued guidelines to all GCap stations during the two weeks following this incident.
Ofcom’s Guidance on Rule 2.11 states: “ two features have been found particularly likely to produce difficulties with the proper running of competitions: the technical complexity of telephony and other communication technology chains, and the pressures of production, particularly live production. Each can give rise to problems by itself, but frequently the two effects interrelate” .
Broadcasters must at all times ensure that the audience is not misled as to the fair conduct of a competition. In addition, it is never acceptable for presenters to consider that the faking of a competition winner is the best and most appropriate way to conclude a competition in the face of technical difficulties. Broadcasters must therefore ensure that members of staff responsible for conducting competitions are fully aware of the types of appropriate contingencies that should be put in place.
Whilst Ofcom noted that the broadcaster took swift and appropriate action to remedy the matter and to discipline those responsible, the competition was nevertheless conducted unfairly, by concluding it with a fake winner. The competition was therefore in breach of Rule 2.11.
Ofcom notes the subsequent action taken by GCap, including informing the regulator of the issue and re-running the competition with all the original entrants. However, breaching the audience’s trust in such a way is never acceptable, regardless of the circumstances in which it has occurred. Ofcom expects Mercia FM to take particular care in ensuring that the conduct of its future competitions complies with the Code and that its staff is appropriately trained to deal with technical problems if they arise.
Breach of Rule 2.11
Cinema give-away competition
The Breakfast Show, Mercury FM (Crawley), 17 May 2008, 06:00
GCap Media (“GCap”), the owner of local radio station Mercury FM ( Crawley) informed Ofcom that during a competition in the Breakfast Show to win two cinema tickets, the telephone system failed. To conclude the competition, the presenter announced a fictitious name as the winner on air.
Ofcom asked GCap about the conduct of the competition with regard to Rule 2.11 of the Code which states that “competitions should be conducted fairly”.
GCap confirmed that this was a local competition to win two cinema tickets. An audio clip of an interview with a celebrity was broadcast and the presenters asked listeners a question based on the information contained in the clip. Listeners were then invited to call the radio station with the correct answer, following which a winner should have been selected.
It confirmed that all radio stations within the GCap group use a computer-based telephone system to route studio calls. During networked programmes, the telephone system is configured to forward all regional telephone calls from listeners to the network studio centre in Bristol. However, during regional programmes this divert function is manually disabled by the presenter of each programme.
GCap confirmed that on this occasion the presenter had failed to disable the divert function and consequently, any telephone calls that were made would have been routed to the network studio centre in Bristol rather than to the Breakfast Show on Mercury FM (Crawley). GCap stated that the telephone number used for the competition was a local rate number and therefore the cost of any call would have been at the applicable standard local rate if made from a landline. However, it stated that no calls were answered by the network system at the time the competition was conducted, so any listeners who may have tried to enter the competition would not have been charged for attempting to do so. In addition, GCap confirmed that the prize was not awarded.
GCap said that after the incident, the presenter responsible for ensuring that the content of the programme adhered to the Code, emailed the station’s Programme Controller who immediately reported the matter to the Legal department and the Regional Managing Director.
Mercury FM (Crawley) transmitted an apology and posted an apology on its website which stated:
“On Saturday 17 th May during the Breakfast Show’s cinema give-away contest, a technical problem occurred which meant that the competition entries didn’t get through to the studio. As a result, we announced on air a winner’s name who had not entered the contest. This was a grave mistake on the part of the presenter and Mercury FM would like to apologise unreservedly for this”.
Ofcom Guidance on Rule 2.11 states: “ two features have been found particularly likely to produce difficulties with the proper running of competitions: the technical complexity of telephony and other communication technology chains, and the pressures of production, particularly live production. Each can give rise to problems by itself, but frequently the two effects interrelate” .
Broadcasters must at all times ensure that the audience is not misled into thinking that it can legitimately interact with a programme. Further, it is never acceptable for a presenter to consider that the faking of the name of a competition winner is the best and most expedient way to deal with an unexpected technical malfunction. Ofcom considers that broadcasters should have planned contingencies in place for such situations - for example, the competition could have been postponed and conducted at a later time when the technical problem had been resolved.
Ofcom noted that no consumer harm was caused because no calls were answered. It also noted that the presenter referred the matter to her seniors and her contract was subsequently terminated by GCap. Further, Mercury FM (Crawley) had apologised to its listeners for the incident. However, the competition was concluded unfairly, by the presenter announcing a fictitious name on air as the winner. The competition was therefore in breach of Rule 2.11.
Breaching the audience’s trust in such a way is never acceptable, regardless of the circumstances in which it has occurred. Ofcom expects Mercury FM (Crawley) to take particular care in ensuring that the conduct of its future competitions complies with the Code and that its staff is appropriately trained to deal with technical problems if they arise.
Breach of Rule 2.11
CSI: Crime Scene Investigation
Five, 4 March 2008, 21:00
Ofcom received one complaint from a viewer who was concerned that this episode of CSI contained several instances of flashing images. These images were primarily from scenes set in a nightclub, and comprised ‘strobe’ lighting effects. No warning of any sort was broadcast before or during the programme.
Certain types of flashing images present a danger of triggering seizures in viewers who are susceptible to photosensitive epilepsy (“PSE”). Rule 2.13 of the Code states that television broadcasters must take precautions to maintain a low level of risk to viewers who have PSE. Ofcom therefore asked Five how this broadcast complied with Rule 2.13.
Five explained that, due to the recent US writers’ strike, this episode of CSI was delivered late, and was only available to the broadcaster on the day before the scheduled transmission. Five’s compliance staff identified that the programme contained flashing images, and highlighted a need for the programme to carry a pre-broadcast announcement alerting viewers to the presence of these images. However, the compliance department’s warning came too late to be implemented by Five’s presentation department, therefore an announcement was not actually broadcast. Five acknowledged that by not broadcasting any warning it had breached Rule 2.13.
Due to the short timescales involved, Five said however that it would not have been reasonably practicable to re-edit the programme to eliminate or reduce the severity of the flashing sequences prior to broadcast. Additionally, it said it would not have been normal practice to reject the programme in its entirety, as the episodes of the series are sequential, and details of the programme would have appeared in the listings and other information some weeks in advance of broadcast. Five have since put in place a system to ensure that any late compliance warnings are correctly passed to their presentation department in future.
A technical assessment by Ofcom concluded that the programme contained over 20 distinct sequences of flashing images where the rate, intensity and screen area occupied by the flashes did not comply with the technical criteria outlined in Ofcom’s Guidance Note on Flashing Images (‘the Guidance’).
We expect broadcasters to be always alert to material which poses a risk to viewers subject to PSE and to check whether such content complies with Ofcom’s technical criteria set out in the Guidance. If it does not, then Rule 2.13 requires the broadcaster to take any “reasonably practicable” measures to follow the Guidance and make the material compliant. If it is not reasonably practicable to follow the Guidance but the broadcaster still wishes to transmit such material, it must (a) be able to demonstrate that it is editorially justified to broadcast the non-compliant material; and (b) that it gave an adequate warning or warnings.
In this case Five was aware that the flashing images breached Ofcom’s technical criteria but no warning was broadcast. It therefore breached Rule 2.13. Ofcom does not need in this case to decide whether – if a warning had been broadcast – Five would have been editorially justified in showing the flashing images. It is possible for a broadcaster to demonstrate that it is editorially justified in showing material which does not comply with Ofcom PSE guidance in any type of programming (including drama). Whether it is in fact editorially justified in a particular case, however, depends on all the circumstances – including such factors as the extent to which the material breaches the Guidance and the context in which the flashing images are broadcast. It is for Ofcom to decide in the context of Rule 2.13 whether any editorial justification claimed is in fact sufficient.
We welcome Five’s assurances that compliance procedures have been improved following this complaint. However, we would reiterate the need for broadcasters to exercise caution in relation to flashing images where harm may be caused.
This decision is published following a review requested by the broadcaster.
Breach of Rule 2.13
(True CSI) Five US, 16 June 2008, 21:30
Ofcom received a complaint about a trailer broadcast for the programme True CSI, a documentary series showing stories of real-life crimes. The trailer included footage from the programme which was edited to resemble a video tape being fast-forwarded, interspersed with text on a static background. In some cases this fast-forwarding effect led to flashing images being broadcast. The complainant said the trailer caused his wife to have a mild seizure.
Certain types of flashing images may trigger seizures in viewers who are susceptible to photosensitive epilepsy (“PSE”). Rule 2.13 of the Code therefore states that: “Broadcasters must take precautions to maintain a low level of risk to viewers who have PSE. Where it is not reasonably practicable to follow the Ofcom guidance…and where broadcasters can demonstrate that the broadcasting of flashing lights and/or patterns is editorially justified, viewers should be given an adequate verbal and also, if appropriate, text warning at the start of the programme or programme item”. Ofcom guidance sets out technical criteria which broadcasts of flashing lights or images should comply with to help ensure compliance with Rule 2.13.
We asked Five for its comments on this trailer with regard to Rule 2.13.
Five stated the trailer was identified as potentially raising an issue during the production process, due to the fast-forwarding effect used. The trailer then underwent Five’s quality control (“QC”) process on two separate occasions: firstly during the editing stage and again prior to transmission. The promotional trailer passed both these checks. Five has since learnt from an external adviser that the trailer was not compliant with Ofcom’s technical guidance. It has therefore acknowledged that the trailer should not have been broadcast.
Five has informed Ofcom that all promotion makers have been instructed to avoid the use of this fast-forwarding effect or any other contentious flashing as part of the creative treatment within a promotion. Five has also reminded its QC operators that any such material should be rejected. Five apologised for the failure of its compliance procedures in this instance. It said that it is confident the steps it has taken will prevent any recurrence.
A technical assessment by Ofcom found that during this 40 second trailer, there were six distinct sequences (lasting approximately 8 seconds in total), where the rate, intensity and screen area occupied by flashing images breached the technical criteria outlined in Ofcom’s Guidance Note on Flashing Images (‘the Guidance’). Ofcom noted Five’s apology and the compliance measures taken in response to this complaint. However, we were concerned that Five’s compliance procedures failed to detect that the material did not comply with Rule 2.13 of the Code. We remind television broadcasters that it is their responsibility to ensure that all material they transmit complies with this Code. This responsibility is particularly important where there is potential for harm to viewers.
The broadcast of this material was therefore in breach of Rule 2.13.
Breach of Rule 2.13
Channel S ATN, 22 August 2007, 23:15
ATN, known at the time of broadcast as Channel S ATN, is a television service aimed at the British Bangladeshi community.
A viewer was concerned that news broadcast on Channel S ATN appeared to be sponsored.
Further, Ofcom noted that news summaries within the news bulletin appeared to be sponsored by Mutual Trust Bank Limited and United Commercial Bank Limited. We asked the broadcaster for its comments with regard to Rule 9.1 of Code, which prohibits the sponsorship of news and current affairs programmes on television.
Channel S ATN said that the news bulletin was broadcast live from Bangladesh and that it had therefore had no opportunity to re-edit the material.
The sponsorship of news is prohibited to ensure that the broadcaster maintains editorial control over (impartial) output that has not been distorted for commercial purposes. This requirement comes from European legislation – the Television Without Frontiers Directive.
Nevertheless, in this case, Channel S decided to transmit a live news broadcast from Bangladesh without considering UK regulatory compliance.
Broadcasters are responsible for ensuring that the material they broadcast on services licensed by Ofcom complies with the Code. Ofcom is concerned that Channel S ATN appeared to believe it was acceptable to transmit live material from overseas without doing so. In this instance Channel S ATN broadcast news summaries as sponsored output, in breach of Rule 9.1 of the Code.
Breach of Rule 9.1
Mortgage and Finance
Mortgage and Finance, Channel S, 27 January 2008, 17:00
Channel S is a television service aimed at the British Bangladeshi community.
During a one and a half hour discussion programme, which was sponsored by Premier Properties and Olympia Properties & Finance, viewers were invited to call the studio on a standard (020…) London telephone line for general advice on financial matters. The studio guest, who responded to the callers’ queries, was introduced as “the Managing Director of Premier Properties Group.” A viewer was concerned that the programme appeared to promote Premier Properties.
Further, Ofcom noted that viewers were not informed (by sponsorship credit) of the sponsorship arrangement at the beginning or end of the programme but only as it entered the two commercial breaks within the broadcast.
Throughout the programme both the presenter and the studio guest responded to callers with such comments as (translated from Bengali):
- “ ... so if you phone the studio and ask for my phone number, we will try and help you. We have an office at Stratford …
- …contact our offices at ‘Premier Properties’ or if you phone the studio, then brother Munir will give you the number and we would be able to help you…
- … Docklands , OK , our office is in Stratford , so there is no problem. Get in touch with us. We will process it for you…
- ...before putting the phone down, you ask the control room for the phone number; brother Kamrul’s number…
- …y es, we can help in many ways for the financial side of it. We specialise for people who buy at auction…
- …I think if you make an appointment and come for a one to one session, then your problem could be solved…”
We asked the broadcaster for its comments with regard to the following Code Rules:
- Rule 9.5, which requires that, in a sponsored programme, there must be no promotional reference to the sponsor or its activities, services or products, or to any direct or indirect interests, there must be no promotional generic references and any non-promotional references are permitted only where they are editorially justified and incidental; and
- Rule 9.6, which, for the purpose of absolute transparency to viewers, requires that any programme sponsorship arrangement must be clearly identified as such by the reference to the name and/or logo of the sponsor at the beginning and/or end of the programme.
Channel S said that the programme was a “pilot episode” of teleshopping, produced “as an info commercial for shopping hours in Bengali.” It added that the broadcast “was not supposed to be a normal chat programme” and had been produced to reflect the type of material it had found on shopping channels, rather than having been considered with regard to relevant compliance requirements. The broadcaster said that a full series had not subsequently been commissioned.
Ofcom notes that the presenter both introduced the studio guest (the Managing Director of one of the programme’s sponsors) as “our guest who was with us last week” and acknowledged that “last week we could not answer a lot of calls.” While Channel S told us that a full series of Mortgage and Finance may not have been commissioned, we note that this broadcast was not a stand-alone “pilot episode”. Ofcom was therefore concerned that Channel S could consider Mortgage and Finance to be a “pilot episode” of teleshopping.
Teleshopping must comply with the Broadcast Committee of Advertising Practice Television Advertising Standards Code. However, a fundamental requirement of teleshopping is that the advertiser makes a direct offer of goods or services that viewers can purchase within the broadcast. Prices, methods of payment and selling messages tend to feature heavily in such output. This broadcast made no direct offer, quoted no prices and mentioned no payment method. Further, viewers were unable to purchase anything in the broadcast. Viewers were therefore most likely to have considered Mortgage and Finance to be editorial – i.e. a phone-in programme for general advice on money matters.
In a sponsored programme, Rule 9.5 of the Code permits only editorially justified references to the sponsor that are incidental and non-promotional. This programme was sponsored by Premier Properties and Olympia Properties & Finance and the studio guest was introduced as “the Managing Director of Premier Properties Group.” Both the presenter and the studio guest solicited business for the sponsor throughout the broadcast. The programme was therefore in breach of Rule 9.5 of the Code.
Rule 9.6 of the Code aims to ensure transparency of any sponsorship arrangement to viewers by requiring that a sponsored programme is clearly identified as such at its beginning and/or end. This is a minimum requirement, as required by European legislation (the Television Without Frontiers Directive), but a broadcaster may choose to broadcast additional credits (subject to Rule 10.4 of the Code, regarding undue prominence). In this case, however, Channel S only featured credits before each of the two commercial breaks in the broadcast. It therefore failed to meet the minimum requirement of placing a sponsorship credit at the beginning and/or end of this one and a half hour programme, and was therefore in breach of Rule 9.6 of the Code.
Breach of Rules 9.5 and 9.6
Scrolled promotion of live tarot reading
MATV, 25 April 2008, 12:00-17:00
MATV provides a news and family entertainment service for the Asian community. During routine sampling of the channel’s output, i t was noted that a scrolling caption appeared intermittently across the bottom of the screen throughout afternoon programmes. The caption promoted a premium rate telephone number that viewers could call for live tarot readings.
MATV confirmed that the scrolled caption was editorial output. However, this intermittent promotion of live tarot services appeared unconnected to the content of the programmes over which it appeared. Ofcom therefore asked the broadcaster for its comments with regard to the following Code Rules:
- 10.3 – “Products and services must not be promoted in programmes…”; and
- 10.4 – “No undue prominence may be given in any programme to a product or service.”
MATV said that the scrolling caption was originally broadcast during a “tarot show” that was now no longer being transmitted. It added that the material had been broadcast by mistake and had been removed from air as soon as it was noticed – there had been a delay in identifying the error due to staff absence.
The broadcaster said that, to date, its transmission service had been operated at an outsourced facility, but that no scrolled information would now be transmitted unless it has been approved by MATV’s Head of Compliance.
Ofcom notes that MATV said the scrolled promotion of live tarot services was a mistake and that it had been broadcast previously during a tarot show, which was no longer being transmitted. However, we called the promoted premium rate number and a tarot reading service was still being offered to callers. MATV had therefore promoted a tarot reading service throughout afternoon programmes, in breach of Rule 10.3.
In this instance, the on-screen promotion of a tarot reading service had no connection with the programmes in which it appeared. There was no editorial justification for its broadcast and the service was therefore given undue prominence, in breach of Rule 10.4 of the Code.
Breach of Rules 10.3 and 10.4
PK’s Afternoon Drive
Cool FM, 10 June 2008, 14:00
PK’s Afternoon Drive is a general entertainment radio programme broadcast on weekdays. During this particular edition, the presenter asked listeners to guess the city alluded to in the following sentence: “the most famous chase in this city was years ago when a man called Jesse Owens chased down Olympic gold in front of Adolf Hitler in 1936.” Contestants submitted their answer via text message charged at 25 pence per entry and the presenter advised that the winner would be selected from all the entrants who answered correctly.
Shortly after the competition closed, the selected entrant was put on air and gave the (incorrect) answer as “Munich”. He was then announced as the winner of a prize of a trip for two people to that destination and entry into a draw to win a BMW 1 Series Coupé. Ofcom received a complaint from a listener who identified that the correct answer was in fact Berlin and as such, all those who submitted this answer were unfairly excluded from the competition.
Ofcom asked Bauer Radio, the owner of Cool FM, for its comments under Rule 2.11 of the Code which states that “competitions should be conducted fairly.”
Bauer Radio explained that shortly after the prize was awarded, the presenter realised the error and announced his mistake on air. He added that a second draw would be taking place with a similar prize. The station’s telephone system identified all entrants that had submitted “ Berlin” as their answer and a re-draw took place within the following hour. A trip for two people to Berlin was awarded to the contestant selected.
The broadcaster accepted it was entirely responsible for the error but stressed that the re-draw ensured no listener was materially harmed and allowed the competition to reach a fair conclusion.
Ofcom recognises that the mistake occurred due to human error. Nevertheless, it appears that the answer was not properly researched in advance of the competition being broadcast. Ultimately this led to the misallocation of the original prize. Rule 2.11 states that all competitions should be conducted fairly. Where broadcasters are inviting the audience to pay to enter such competitions, it is particularly important that due care is taken to ensure that no such errors occur.
However, in this instance, Ofcom welcomes the swift action taken by the broadcaster to avoid unfairness and therefore considers the matter resolved.
The History Channel, 1 August 2008, 10:00
Ax Men is a factual programme which looks at the day-to-day work of different logging companies in the north west of the USA. One viewer complained to Ofcom that in the last 10 minutes of the programme various forms of bad language, including “bullshit” and “fuck”, were used.
Ofcom asked The History Channel to respond under Rule 1.14 (the most offensive language must not be broadcast before the watershed) of the Code.
The History Channel offered its unreserved apologies for the broadcast of this language. The broadcaster said that as soon as it was made aware that this language had been transmitted, it withdrew all copies of Ax Men for further review and began an internal investigation. This enquiry found that the broadcaster’s compliance team had made numerous changes to the programme to ensure it complied with the Code, but some of these changes were later and inadvertently reversed in error by a technician. This mistake led to the offensive language in question being broadcast. The History Channel said that on the same day this incident came to their attention, it further tightened its compliance procedures.
Ofcom does not consider the infrequent use of “bullshit”, which is considered to be mild offensive language, to be at odds with the Code when broadcast in a factual programme unlikely to appeal to children. However, “fuck” is considered one of the most offensive forms of language. Rule 1.14 clearly states that this should not be broadcast before the watershed.
In Bulletin 89, published on 16 July 2007, Ofcom made clear its concerns about broadcasters showing post-watershed content before 21:00 without ensuring the material was suitable for this earlier timeslot. We acknowledge The History Channel’s apology and admission that the most offensive language should not have been broadcast. Ofcom also notes the broadcaster has made compliance changes as a result of this incident and that it has had a good compliance record to date.
The History Channel should have had more robust procedures in place in the first instance and its error resulted in one of the most offensive terms being broadcast at a time when viewers would not expect such language. However, given that this is the first time such an incident has occurred on the channel and it has put additional compliance measures in place, we consider this matter resolved. Nevertheless, Ofcom would not expect a recurrence of this language in the future.
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