Broadcast Bulletin Issue number 123 - 08|12|08
Venus TV Ltd, Greater Manchester transport plan – local poll advertisement, Club Classics, Heart Breakfast, The Five Thirty Show, Nemone, Donald Macleod, The Live Hour, All-Ireland Final Competition, Top Gear, Harry and Paul, Complaints by Sri Guru Singh Sabha Sikh Temple made on its behalf by Dr Parvinder Singh Garcha, Mr Ian Hunter, Miss Davina Hunter on behalf of herself and her son (a minor), British Toy and Hobby Association, Ms Roberta Marchesin, Mr Graham McGrath and by Miss Elizabeth Young.
Notice of Sanction
Venus TV Ltd
Venus TV, ASA referral to Ofcom for TV Advertising Code Breaches,
April to October 2007
On 4 December 2008 , Ofcom published its decision to impose a statutory sanction on Venus TV Ltd (“the Licensee”), in respect of its service Venus TV (“the Channel”). This was for serious and repeated b reaches of the Broadcast Committee of Advertising Practice Television Advertising Standards Code (“the TV Advertising Code”), and in light of Condition 8 (4) of the Channel’s licence which requires the Licensee to ensure that Venus TV complies with the TV Advertising Code.
The sanction was for breaches of the TV Advertising Code recorded by the Advertising Authority (“ASA”) relating to broadcasts of five different advertisements shown on Venus TV over the period November 2006 and August 2007 :
- Golden Bull Kastoori Capsules (a herbal remedy), adjudication published in April 2007;
- Jorge Hane Weight Loss, published in May 2007;
- Pandith astrology, published in October 2007;
- Pundit Maharaj astrology, published in October 2007; and
- Roopamrit (a face cream), published in October 2007.
The regulation of broadcast advertising standards is a function of Ofcom that has been contracted out by Ofcom to the ASA. In accordance with this contracting out arrangement, the ASA referred Venus TV Ltd to Ofcom for consideration of a statutory sanction for these repeated and serious breaches of the TV Advertising Code.
In summary, Ofcom concluded that a statutory sanction was appropriate in this case because the breaches of the TV Advertising Code were serious in that:
- they raised significant issues of consumer protection, particularly in relation to the health of viewers. For example, three of the infomercials claimed to offer remedies to various medical conditions but none were supported by sufficient evidence, thereby materially misleading viewers;
- they demonstrated repeated and systemic poor compliance by Venus TV Ltd. There was clear evidence that the Licensee did not have robust compliance procedures in place before, and at the time of, the breaches; and
- the advertisements were in the form of teleshopping items lasting up to several minutes, thereby increasing the likely negative impact of the advertising.
The breaches were also repeated.
For the reasons set out in the adjudication, Ofcom imposed a financial penalty of £35,000 on Venus TV Ltd (payable to HM Paymaster General) and directed it to broadcast a statement of Ofcom’s findings on Venus TV in a form to be determined by Ofcom on two specified occasions.
The full adjudication can be found: http://www.ofcom.org.uk/tv/obb/ocsc_adjud/venustv.pdf
The James Whale Show, Talksport, 20 March 2008, 22:00
On 8 December 2008, Ofcom published its decision to impose a statutory sanction on Talksport Ltd in respect of its service Talksport. The sanction was for breaches of Rule 6.1 of the Code (which states “The rules in Section Five, in particular the rules relating to matters of major political or industrial controversy and major matters relating to current public policy, apply to the coverage of elections and referendums”).
The effect of Rule 6.1 is to ensure broadcasters must show due impartiality in their coverage of elections and referendums. This is to help ensure that elections are conducted fairly, and that no unfair advantage is given to candidates through promotion in the broadcast media.
The broadcaster was fined for an edition of The James Whale Show on the 20 th March 2008 . Ofcom found that the Licensee had seriously breached the due impartiality rules at the time of an election. The presenter directly encouraged listeners to vote for Boris Johnson in the upcoming London mayoral elections and criticised Ken Livingston.
For the reasons set out in the adjudication Ofcom imposed a financial penalty of £20,000 on Talksport Ltd (payable to HM Paymaster General) and directed it to broadcast a statement of Ofcom’s findings in a form to be determined by Ofcom on one specified occasion.
In deciding on a level of financial penalty in this case, Ofcom was concerned not to impose a penalty which in its view would have an inappropriate and restricting effect on live discussion and phone in programmes on Talksport and similar channels, hosted by presenters with controversial and outspoken views. Ofcom considers that it is important to ensure that the plurality of viewpoints and broadening of debate on important issues that a channel like Talksport can provide are not discouraged.
The full adjudication is available at: http://www.ofcom.org.uk/tv/obb/ocsc_adjud/talksport.pdf
Greater Manchester transport plan – local poll advertisement
ITV1 (Granada), 6-13 November 2008, various times
This finding was originally published on 28 November 2008.
Ofcom received seven complaints about an advertisement broadcast on ITV1 ( Granada ) publicising a local poll being held in the Greater Manchester area. The poll seeks to gauge opinion on a proposed transport plan for the area, to be financed by funding from a central government Transport Innovation Fund (“TIF”). This transport plan includes the introduction of a congestion charging scheme.
The advertisement featured a presenter in a studio referring to the poll and summarising the consequences of ‘yes’ and ‘no’ outcomes. During the advertisement a call to action to vote, the name and logo: Greater Manchester Future Transport (“GMFT”), and GMFT’s website address were all prominently displayed.
GMFT is a brand set up to provide information on the transport proposals. It was established jointly by the Association of Greater Manchester Authorities (“AGMA”), a grouping of the area’s local authorities, and the Greater Manchester Passenger Transport Authority (“GMPTA”), the body responsible for the county’s public transport provision. The GMPTA has an executive arm, the Greater Manchester Passenger Transport Executive (“GMPTE”). Small logos of AGMA and GMPTA were shown briefly in the advertisement’s closing sequence.
The advertisement had been cleared by Clearcast. This body examines and advises on advertising scripts and films before production and transmission, on behalf of broadcasters, with the aim of ensuring compliance.
The complainants alleged variously that the advertisement was biased towards the ‘yes’ choice in the poll (i.e. the outcome in favour of the imposition of a congestion charging scheme) and constituted propaganda.
Political broadcast advertising is prohibited under the terms of section 321 of the Communications Act 2003 (“the Act”) and, for television, by Section 4 of the Broadcast Committee of Advertising Practice (BCAP) Television Advertising Standards Code (“the TV Advertising Code”). The relevant extracts from the Act and the TV Advertising Code are given in full at the end of this adjudication.
The TV Advertising Code, formerly Ofcom’s Advertising Standards Code, is now administered by the Advertising Standards Authority (ASA) and BCAP. Ofcom, however, remains responsible under the terms of the Memorandum of Understanding, between Ofcom and the ASA, for enforcing the rules on Political Advertising, namely Section 4 of the TV Advertising Code.
Ofcom sought ITV’s comments on whether:
a) the advertisement, by prominently featuring the GMFT website, was “directed towards a political end”, as proscribed by section 321(2)(b) of the Act and Section 4(b) of the TV Advertising Code; and
b) the advertisement showed “…partiality as respects matters of political or industrial controversy or relating to current public policy”, as proscribed by Section 4(d) of the TV Advertising Code, by the manner in which the choices in the poll, and their consequences, were presented.
Having been notified of Ofcom’s investigation and having considered the advertisement in light of the complaints, ITV removed the advertisement from transmission.
a) Was the advertisement “directed towards a political end”? (Section 4(b) of the TV Advertising Code and Section 321(2) (a), (f) and (g) of the Act);
The broadcaster said that GMPTA had asserted that statute prevents both it and AGMA from displaying political bias, and that ITV did not consider their compliance with these statutes to be in question.
ITV submitted that the primary purpose of the advertising was to educate the population of Manchester on the repercussions of voting ‘yes’ or ‘no’ in the forthcoming referendum. ITV questioned whether the advertisement fell under the auspices of “issue campaigning for the purpose of influencing legislation…” [see notes to Section 4 of the TV Advertising Code at the end of this Finding], rather than the signposting and promotion of debate of an issue of local importance.
b) Did the advertisement “show partiality as respects matters of political or industrial controversy or relating to current public policy” ? ( Section 4(d) of the TV Advertising Code, with particular reference to Section 321(3) (f) and (g) of the Act );
As to whether the advertisement showed partiality, ITV said that although the creative treatment considered alternative outcomes, it accepted it was arguable that there was a possibility that a partiality issue had arisen.
ITV pointed out that this issue was originally addressed by Clearcast with regard to a perceived imbalance in respect of partiality. Upon submission, Clearcast had considered the script for the advertisement in relation to Section 4 of the TV Advertising Code. Clearcast had recognised that the script related to a matter of political controversy as outlined in Section 4(d). It therefore sought to ensure that the advertisement was not partial. For that reason, it asked for the consequences of voting either ‘yes’ or ‘no’ to be referred to in the advertisement. On the basis that the script was amended to address this point and the finished commercial, when submitted, matched the approved script, Clearcast considered the advertisement to be acceptable under the provisions of Section 4 of the TV Advertising Code.
After having being made aware that the advertising was subject to an investigation by Ofcom, and having been informed that ITV had removed the advertising from broadcast, Clearcast made the commercial unacceptable on its clearance database system and informed broadcasters of this.
ITV accepted that, on balance, it understood the advertisement to be potentially in breach of Section 4(d) of the TV Advertising Code. Further, ITV stressed that as a responsible broadcaster and having undertaken due process, it removed the advertising as soon as practical on being made aware of the serious concerns of Ofcom.
ITV said that it appreciated the importance of working in conjunction with Clearcast as both a shareholder and industry stakeholder in that organisation, to clarify and resolve issues with regard to submission of advertising potentially subject to Section 4 of the TV Advertising Code.
Ofcom was also informed by GMPTA that it had used the established procedure “designed prior to transmission to ensure that…Clearcast was content that the transmission would comply with the Code”. GMPTA stated that it willingly made changes suggested by Clearcast.
It is Ofcom’s statutory duty to regulate broadcast advertising to ensure that the regulatory regime set out in the Act is enforced and to set standards in accordance with the objectives specifically set out in the Act.
Since commercial broadcasting began in the UK in the 1950s, Parliament has made clear through successive Acts of Parliament concerning broadcast regulation, that ‘political’ advertising should not be permitted on television or radio.
Section 321 of the Act makes clear that an advertisement breaches the prohibition on political advertising if it is:
- an advertisement that is directed towards a political end; and/or
- an advertisement that shows partiality as respects matters of political or industrial controversy or relating to current public policy.
The Act has made the statutory definition of “political advertising”, for the purposes of the prohibition, more explicit than in any previous legislation. The definition is reflected in Section 4 of the TV Advertising Code which is given in full at the end of this decision.
The Act gives examples of political objects and political ends, including:
- “influencing the outcome of elections or referendums, whether in the United Kingdom or elsewhere”;
- “influencing public opinion on a matter which, in the United Kingdom , is a matter of public controversy”; and
- “promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends”.
(Section 321(3)(a), (f) and (g), respectively).
Ofcom noted that in line with normal process for placing an advertisement on ITV, the advertiser had sought, and obtained, clearance from Clearcast. Further, Clearcast had recognised in this case the particular need for the advertisement to meet the requirements of Section 4 of the TV Advertising Code.
Ofcom takes this opportunity to remind licensees and advertisers that discharging the licence obligation for pre-transmission scrutiny of advertising (whether through Clearcast or by other means) does not guarantee the compliance of advertising to the advertising codes. The broadcaster itself is obliged under its licence to ensure that any advertising it broadcasts is so compliant.
With these observations in mind, Ofcom concluded under the two heads above as follows:
a) Was the advertisement “directed towards a political end”? (Section 4(b) of the TV Advertising Code and Section 321(2) (a), (f) and (g) of the Act);
We carefully considered the advertisement against these sections of the TV Advertising Code and the Act. We noted that:
- the name, logo and website of GMFT were all highly prominent;
- the advertisement contained and prominently displayed a call to action: “Vote by 11 th December 2008 ”, directly underneath which appeared the website address of GMFT. The website was therefore given significant prominence in association with a call to action to vote.
As observed previously in this Finding GMFT is the name given to a brand set up by AGMA and GMPTA. During the period of the advertisement’s broadcast the GMFT website provided information on a matter of political controversy (whether to introduce a congestion charge in the Greater Manchester area). This information was, however, partial in respect of the transport funding bid and the prospective congestion charge (see further below). In our view this advertisement therefore directed viewers to a website which contained information about a matter of political controversy which was partial in support of a ‘yes’ vote.
In Ofcom’s view the GMFT website contained material that was almost exclusively in support of the congestion charge and a ‘yes’ vote.
For example, the website included a banner display on multiple pages as follows:
- “The congestion charge – the facts. The congestion charge would help fund major investment in public transport and congestion reduction measures. Vote no = the public transport investment plan and Congestion Charge will not happen. Vote yes = the public transport investment plan and Congestion Charge will go ahead.”
The following statements were also included on the website:
- “Up to one in seven new jobs could be at risk if the transport system is not expanded to cope with this pressure.”
[from webpage headed “Background to the TIF”]
- “We therefore believe that the Greater Manchester Future Transport proposals are vital to keep the Greater Manchester economy growing and to keep spreading prosperity to all. Without this massive, once-in-a-generation investment package, we believe that business costs will rise, local investment will fall and the chance to achieve our full economic potential will be lost. The Future Transport package would allow us to make several decades’ worth of investment over the next 5 years, radically improving public transport provision and giving people more choice about their travel plans before the congestion charge could be introduced in the summer of 2013.”
[from a downloadable letter addressed to businesses on the website]
- “Fewer than 20% of Greater Manchester ’s weekday peak-time drivers would pay a charge. The average daily charge is estimated to be less than £3 (at 2007 prices).”
[from webpage headed “Congestion charge – our plans”]
“Success in Stockholm - The congestion charging trial in Stockholm found:
Estimates show that the emissions of particles and nitrogen oxide from road traffic fell by 8%-12% in Stockholm ’s inner city. For all road traffic in the City of Stockholm this corresponds to 3-5%.
These small differences are estimated to have a considerable effect on health. For the entire Greater Stockholm area (1.44 million inhabitants, 35 x 35 km), it is estimated that 25 - 30 fewer premature deaths would occur per year as a result of a reduction in long-term exposure to particles.”
[from webpage “Environment and Health – success in Stockholm ”]
A page of the site listed press releases. Some press release titles and the brief copy used on the website to describe the downloadable releases are listed below.
- “Letter of response to Graham Stringer MP proving that 9 out 10 would not need to pay the charge”
- “Unions Welcome TIF Job Injection
New research has revealed almost 10,000 new jobs could be created in Greater Manchester as a result of the Transport Innovation Fund (TIF) package”
- “Proposed bus boost for Bury - details released
New details have been released about how Bury bus services would improve if the Transport Innovation Fund (TIF) proposals go ahead”
[There were similar press releases for Oldham , Rochdale , Salford , South Manchester , Stockport , Trafford and Wigan Borough]
- “Further Evidence That Businesses Will Benefit From TIF
Research co-ordinated by KPMG, the leading financial services firm, shows Greater Manchester 's Transport Innovation Fund (TIF) package is good news for jobs, supports business and provides excellent value for money for Greater Manchester ”
- “Transport Innovation Fund - The only option for transport funding
Conventional Government funding for transport could take up to 50 years to provide the scale of investment in public transport proposed under Greater Manchester ’s bid to the Transport Innovation Fund it is revealed today”
Ofcom was specifically referred by GMPTA and AGMA to a link on the website to a document opposing the congestion charge. This document was a submission made by Greater Manchester Momentum Group (“GMMG”) to the North West Regional Development Agency. However, Ofcom noted that this was immediately followed by a link described as “our response” to the submission. This response set out arguments against the views put forward by GMMG, clearly reflecting the positioning of GMFT and its website.
In view of the foregoing, and taking into account the terms of Sections 321(3)(a), (f) and (g) of the Act, we have concluded that the advertisement was directed towards a political end.
The advertisement was therefore in breach of Section 4(b) of the TV Advertising Code.
b) Did the advertisement “show partiality as respects matters of political or industrial controversy or relating to current public policy” ? ( Section 4(d) of the TV Advertising Code, with particular reference to Section 321(3) (f) and (g) of the Act );
The advertisement was filmed in a studio and presented by a man in front of large video screens. For much of the advertisement the screens prominently displayed a call to action (“Vote by 11 th December 2008 ” ) in conjunction with the website address of GMFT. GMFT’s name and logo were also highly prominent within the advertisement.
The presenter’s script ran, in full, as follows:
“If you’re registered on the electoral register for Greater Manchester , you’ll shortly be asked to vote on the proposed investment plan for Greater Manchester ’s transport system and the congestion charge… Vote ‘No’ and this public transport investment plan and the congestion charge won’t happen… Vote ‘Yes’ and there would be investment in public transport in many parts of Greater Manchester , part funded by the congestion charge. A congestion charge will apply on weekdays only if you drive across either of these two rings between 7 and 9:30 in the morning and out between 4 and 6:30 in the evening. Make sure you have your say before 10pm on December the 11th.”
During the comment on the ‘no’ consequences, the following text appeared prominently on one of the background video screens:
“FACT: VOTE NO =
• No Transport Investment Funding
• No Congestion Charge”
When the ‘yes’ consequences were introduced, the following text appeared prominently on one of the background video screens:
“FACT: VOTE YES =
• Transport Investment Funding
• Congestion Charge”
In addition, video sequences were shown of public transport expansion on a map and of an animated graphic of the congestion zone with arrows indicating the charging applied to the direction of travel.
We carefully considered the advertisement against the relevant sections of the TV Advertising Code and the Act. We noted that:
- the time allocated in the advertisement to the consequences of the ‘yes’ and ‘no’ outcomes of the poll was weighted significantly towards the ‘yes’ result;
- the presentation and tone of the consequences of the two outcomes was uneven. The audio and graphics described the positive consequences of a ‘yes’ outcome in the poll but did not offer any opposing viewpoints. The ‘no’ option was presented negatively, with a short message stating that a ‘no’ vote would mean “No Transport Investment Funding” and “No Congestion Charge” ;
- the language used in the advertisement favoured the ‘yes’ point of view. For example, the use of “only” in the spoken statement “A congestion charge will apply on weekdays only” tended to minimise the effect of the charge. Further, the use of “will” in that statement had the effect of pre-judging the poll’s result.
In view of these points, and taking into account the terms of Sections 321(3) (f) and (g) of the Act, we have concluded that the advertisement showed partiality as respects matters of political or industrial controversy or relating to current public policy.
The advertisement was therefore in breach of Section 4(d) of the TV Advertising Code.
Breaches of Sections 4(b) and (d) of the BCAP Television Advertising Code
Extracts from the relevant legislation and code
Communications Act 2003, Section 319(1) & (2)(g)
(1) It shall be the duty of OFCOM to set, and from time to time to review and revise, such standards for the content of programmes to be included in television and radio services as appear to them best calculated to secure the standards objectives.
(2) The standards objectives are—
(g) that advertising that contravenes the prohibition on political advertising set out in section 321(2) is not included in television or radio services;
Communications Act 2003, Sections 321(2) and (3)
(2) For the purposes of section 319(2)(g) an advertisement contravenes the prohibition on political advertising if it is—
(a) an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature;
(b) an advertisement which is directed towards a political end; or
(c) an advertisement which has a connection with an industrial dispute.
(3) For the purposes of this section objects of a political nature and political ends include each of the following—
(a) influencing the outcome of elections or referendums, whether in the United Kingdom or elsewhere;
(b) bringing about changes of the law in the whole or a part of the United Kingdom or elsewhere, or otherwise influencing the legislative process in any country or territory;
(c) influencing the policies or decisions of local, regional or national governments, whether in the United Kingdom or elsewhere;
(d) influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the United Kingdom or of a country or territory outside the United Kingdom ;
(e) influencing the policies or decisions of persons on whom functions are conferred by or under international agreements;
(f) influencing public opinion on a matter which, in the United Kingdom , is a matter of public controversy;
(g) promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends.
BCAP Television Advertising Standards Code, Section 4
(a) may be inserted by or on behalf of any body whose objects are wholly or mainly of a political nature.
(b) may be directed towards any political end.
(c) may have any relation to any industrial dispute (with limited exceptions).
Note to 4(c):
The Broadcasting Act 1990 specifically exempts public service advertisements by or on behalf of a government department from the prohibition of advertisements having ‘any relation to any industrial dispute’.
(d) may show partiality as respects matters of political or industrial controversy or relating to current public policy
Notes to Section 4:
(1) The purpose of this prohibition is to prevent well-funded organisations from using the power of television advertising to distort the balance of political debate. The rule reflects the statutory ban on ‘political’ advertising on television in the Broadcasting Act 1990.
(2) The term ‘political’ here is used in a wider sense than ‘party political’. The rule prevents, for example, issue campaigning for the purpose of influencing legislation or executive action by legislatures either at home or abroad. Where there is a risk that advertising could breach this rule, prospective advertisers should seek guidance from licensees before developing specific proposals.
Heart 106.2 (Greater London); 11 July 2008, 16:00-22:00;
Heart 106.2 (Greater London); 14 July 2008, 06:00-09:00
During routine monitoring of Heart 106.2’s output, Ofcom noted numerous references to ‘Mamma Mia! The Movie’ – the film version of the stage show, ‘Mamma Mia!’, which is based on the songs of ABBA. The station also referred to itself as “The official radio station of ‘Mamma Mia! The Movie’.”
Club Classics – 11 July 2008 , 16:00-22:00
In this programme, on the evening after the general release of ‘Mamma Mia! The Movie’ in the UK , references included promotional trailers for the following Monday’s Heart Breakfast. These trailers stated that this upcoming edition of the programme was to be “with the stars of ‘Mamma Mia! The Movie’.
After one such trailer, the presenter said: “…that’s gonna be perfect – see the film over the weekend, hear those fantastic interviews on Heart Breakfast next week – perfect.”
Other references to the film during Club Classics included:
- (in a brief item concerning films on television and at the cinema that evening): “…If you're heading out, don't want to be staying in - i.e. the cinema - ‘Mamma Mia! The Movie’ finally out and gonna absolutely do the business this weekend. Enjoy that if you're going tonight…” ;
- (between songs, a recorded link): “Think ‘Mamma Mia! The Movie’, think London ’s Heart” , followed by an audio clip from the film and: “The official radio station of ‘Mamma Mia! The Movie’: London ’s Heart” ;
- (leading into a traffic update): “…If you’re getting ready to go out – maybe to see ‘Mamma Mia! The Movie’, maybe heading out for dinner somewhere, hookin’ up with some friends – keep the radio tuned in for some great tunes” ;
- (final item in the 19:00 news bulletin): “ … and it's believed that ‘Mamma Mia! The Movie’ will go straight to the top of the London box office this weekend … And you can hear exclusive interviews with the cast of the film right now on our website - Heart.co.uk” ; and
- (immediately after a repeat of the Heart Breakfast ‘‘Mamma Mia! The Movie’ trailer, which followed the commercial break after the news):
“Just after seven, I hope you had a good day and a really good week as well. It’s gonna be a good weekend, definitely. ‘Mamma Mia! The Movie’ finally in cinemas. Loads of stuff goin’ on. Hope you’ve got some good plans…”
Heart Breakfast – 14 July 2008 , 06:00-09:00
On the following Monday, the Breakfast programme featured exclusive interviews with three of the film’s leading actors. Outside these interviews, further references were also made to ‘Mamma Mia! The Movie’ . Examples included:
- “Hoping you’ve had the chance to go and see ‘Mamma Mia! The Movie’ now – seems like a lot of London has. It’s number 1 in the box office. It is a wonderful film” ;
“So don’t forget of course that Heart is the exclusive ‘Mamma Mia! The Movie’ station” ;
“ Don’t forget of course you’re listening to the ‘Mamma Mia! The Movie’ official station” ;
“Don’t know if you’ve managed to see Abba The Movie yet … Relax into it because it’s just one of the best films ever...” ;
“…so ‘Mamma Mia! The Movie’ is out, finally. Hopefully, you’ve had chance to see it” ; and
“I loved it. I loved the film. It’s just fun and great – you don’t have to be a massive Abba fan to go and see it either.”
- (in news bulletins):
“… ‘Mamma Mia! The Movie’ has gone straight to the top of the UK box office” ;
We asked Heart 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.”
We also asked the broadcaster for details of any commercial agreement between Heart and any organisation associated with the production and/or distribution of ‘Mamma Mia! The Movie’ .
Heart said that it is a music and entertainment station primarily targeted at women in their thirties and that it aims to provide them with interesting and relevant lifestyle features. The broadcaster believed that the launch of ‘Mamma Mia! The Movie’ was “a massive showbiz event which presented an outstanding opportunity to engage with the lives and lifestyles of [Heart’s] target audience.” It added that not only was it editorially justified for Heart to have provided extensive coverage of the event, but its audience would have expected it.
The broadcaster believed the film’s plot and cast “could not have been more on brand for a station like Heart” and said that, “rather than promote the movie through any association with Heart, [its] intention was to promote Heart through association with the movie…and so make Heart the station of choice for people who were excited about the movie”.
Heart said that its on-air references to ‘Mamma Mia! The Movie’ formed part of normal programming strands – programme trails, presenter links, comment that Heart believed would reflect its listeners’ enthusiasm for the film.
The broadcaster claimed that its on-air references to Heart being “the exclusive ‘Mamma Mia! The Movie’ station”, “the ‘Mamma Mia! The Movie’ official station”, “ the official radio station of ‘Mamma Mia! The Movie’” and similar were “intended to be ‘puffery’ to promote Heart in accessible language, rather than reflect any formal relationship between the station and ‘Mamma Mia’.” It justified its “on air positioning as the station that ‘owned’ the film” by adding that:
- Heart was the only UK radio station to travel to Greece and conduct cast interviews;
- Heart hosted the world premiere of ‘Mamma Mia! The Movie’, “with [its] presenters on the ‘blue’ carpet (the producer’s version of a red carpet) interviewing the stars of the movie” for the public; and
- Heart presenters introduced exclusive screenings of the movie in the week prior to the film’s release.
With regard to Rule 10.3 of the Code, the broadcaster believed the references to ‘Mamma Mia! The Movie’ “were tapping into the pre-existing excitement around the movie’s release amongst its audience”, rather than promoting the film. With regard to Rule 10.4 of the Code, the broadcaster was confident that its self-initiated association with ‘Mamma Mia! The Movie’ and the on-air references it made were editorially justified, in the light of the film’s appeal to Heart’s audience, the pre-existing prominence of ABBA on its playlist and its wish to provide compelling content to its target audience.
The broadcaster added that none of the output under investigation by Ofcom formed part of a commercial agreement. However, it stated that between 23 June 2008 and 10 July 2008 , it broadcast content relating to ‘Mamma Mia! The Movie’ that had resulted from a commercial agreement with “Universal – Mamma Mia” (“Universal”) – the distributors of the film. This agreement entailed:
- trailing and running two competitions on air, sponsored by ‘Mamma Mia! The Movie’ – one held on 1 July 2008 , for tickets to the world premiere of ‘Mamma Mia! The Movie’, and one held over the weekend 5-6 July 2008, for a holiday in Greece ; and
- co-promoting[(-1-)] ‘Mamma Mia! The Movie’ and Heart in advertising, online and through street activity.
The broadcaster was confident that the references to ‘Mamma Mia! The Movie’ that it broadcast in Club Classics on 11 July 2008 and Heart Breakfast on 14 July 2008 were separate from the content relating to the commercial agreement, and were also both non-promotional and editorially justified.
1.- A co-promotion is a promotional arrangement between a broadcaster and a sponsor/advertiser that involves the promotion of both parties’ brands and/or products and/or services. It generally comprises more than broadcast material - e.g. promotional website material, non-broadcast promotional events etc.
Undue prominence may result from the presence of, or reference to, a product or service in a programme where there is no editorial justification, or as a result of the manner in which a product or service appears or is referred to. When deciding whether such references in programmes give undue prominence to products or services (prohibited under Rule 10.4 of the Code), Ofcom considers, among other things, what was said, the way in which it was said, its context in relation to other output and the likely perception of listeners. Further, in certain circumstances and depending on the context, it is possible that undue prominence can itself lead to products or services being promoted in programmes resulting in a breach of Rule 10.3 of the Code.
There may be editorial justification for on-air references to products or services (including films) that are particularly relevant to broadcasters’ audiences. In this case,
Ofcom acknowledges that the release of ‘Mamma Mia! The Movie’ was an event of interest to Heart’s target audience and notes the enthusiasm with which the broadcaster sought to engage its audience with the film in both Club Classics and Heart Breakfast.
While Heart sought to provide an “on air positioning as the station that ‘owned’ the film” in this content, Ofcom does not consider this legitimised the frequency and manner of the references made to ‘Mamma Mia! The Movie’ in these broadcasts. This was compounded by the fact that by the time listeners heard Club Classics on 11 July 2008 , and Heart Breakfast on 14 July 2008 , they were likely to have already been aware of the broadcaster’s interest in and association with ‘Mamma Mia! The Movie’ through previous broadcast advertising and the film’s sponsorship of competitions on Heart, resulting from the commercial arrangement with Universal.
Club Classics – 11 July 2008 , 16:00-22:00
Club Classics was broadcast the day after Heart had ended broadcasting output sponsored by ‘Mamma Mia! The Movie’. In the programme Heart trailed the following Monday’s breakfast show (Heart Breakfast), promoting its interviews with some of the film’s leading actors. It also predicted box office success for ‘Mamma Mia! The Movie’ in news and the programme’s presenter referred to the film in a ‘what’s on’ feature. Ofcom accepts that some of these references to ‘Mamma Mia! The Movie’ appeared to be appropriately topical, of likely appeal and relevant to Heart’s target audience and therefore editorially justified.
Ofcom also accepts that the broadcaster was “tapping into the pre-existing excitement around the movie’s release amongst its audience.” However, the extent to which such excitement was reflected or created by Heart on air (and over time) is uncertain. Regular listeners were most likely to have known since 23 June 2008 (when material in which ‘Mamma Mia! The Movie’ was first co-promoted on air under the commercial agreement with Universal) that Heart and the film were commercially linked.
In this instance, Ofcom therefore considers that references such as “The official radio station of ‘Mamma Mia! The Movie’: London’s Heart”, were unlikely to have been understood by listeners of Club Classics as simply “‘puffery’ to promote Heart”, as the broadcaster had intended. We consider that listeners were most likely to have viewed such references as indicating some form of ongoing commercial arrangement between Heart and ‘Mamma Mia! The Movie’.
In addition, the presenter made a number of what Ofcom considered to be contrived references to the film in otherwise normal comment, which appeared only to support this (see Introduction, e.g. “…If you’re getting ready to go out – maybe to see ‘Mamma Mia! The Movie’ …” and “It’s gonna be a good weekend, definitely. ‘Mamma Mia! The Movie’ finally in cinemas…”). These also went beyond informing listeners about the recent release of a film that was likely to interest them.
Heart Breakfast – 14 July 2008 , 06:00-09:00
As in Club Classics, Heart Breakfast contained some similar editorially justified references to ‘Mamma Mia! The Movie’ – in this case, in news, interviews with the film’s leading actors and some of the presenters’ conversation.
However, one of the presenters said to listeners, “Don’t forget of course, you’re listening to the ‘Mamma Mia! The Movie’ official station” and referred to Heart being “the exclusive ‘Mamma Mia! The Movie’ station”. Other references of concern included such statements as “Think ‘Mamma Mia! The Movie’, think London ’s Heart” . Ofcom considered that, as in Club Classics, listeners were most likely to have viewed these references to the film as indicating some form of ongoing commercial arrangement between Heart and ‘Mamma Mia! The Movie’.
In conclusion, Ofcom accepts that there was some editorial justification for references to ‘Mama Mia! The Movie’ in Heart’s programming during this period. However, in this case, the sheer volume, nature and tone of references resulted in the references appearing to be contrived and in some places, gratuitous. This resulted in the station giving undue prominence to the film and also promoting it as a product. Ofcom considered that the station output went beyond informing listeners about the recent release of a film that was likely to interest them. This resulted in breaches of the Code.
Club Classics – 11 July 2008 , 16:00-22:00 : Breach of Rules 10.3 and 10.4
Heart Breakfast – 14 July 2008 , 06:00-09:00 :Breach of Rules 10.3 and 10.4
Note to Radio Broadcasters
Radio broadcasters should take care at all times to avoid promoting and/or giving undue prominence to products or services in programmes. Where a commercial agreement is in place with a third party, particular care is needed not only at the time a client is sponsoring output or running an advertising campaign on air, but also when such output has ended. This is particularly important if the broadcaster has also chosen to promote itself or its goods or services by forming a close association with the sponsor/advertiser (for example, through a co-promotional agreement that involves additional off-air activity). A broadcaster may wish to embrace this association by reflecting its enthusiasm for it, and/or that of its audience, on air. While there may be editorial justification for doing so, the broadcaster should always take care to define the parameters of the association and the extent to which broadcast activity forms part of it.
The Five Thirty Show
STV, 20 March 2008, 17:00
The Five Thirty Show is a half-hour weekday topical magazine programme. A report featured the Rugby Union player, Kenny Logan, who spoke about how he had overcome dyslexia by following the Dore support programme. During this pre-recorded report, which was filmed at The Dore Clinic in Edinburgh, Kenny Logan was interviewed about his dyslexia and how the programme had helped him.
When introducing the report, one of the studio presenters referred to how Mr Logan had struggled with dyslexia “until he discovered a revolutionary support programme.” Near the beginning of the feature, the narrator added: “…new help is at hand. The Dore’s Clinic in Edinburgh offers revolutionary treatment for those battling learning difficulties.”
Throughout the interview, Mr Logan stood in front of a poster that promoted “The Dore programme.” The interviewer asked him, “What difference has Dore made?” Mr Logan replied: “I feel like a sponge now. I take in so much more information … I’m learning so much more now. I’m really enjoying, you know, life, because everyday you’re learning something new.” A little later, the narrator asked Mr Logan, “How does it work?” He replied: “There are so many things out there; I can only tell you my experience: Dore has changed my life.”
After the report, one of the studio presenters told viewers there was “more information on that treatment on our website.”
A viewer was concerned that the feature was an inaccurate “blatant advert for Dore in Edinburgh .”
Ofcom noted an ITC Finding from 2002[(-1-)], which stated that the ‘cerebellar theory’ of dyslexia (espoused by Dore) had originated over thirty years previously. Ofcom also established that Mr Logan was a director of Dore’s holding company, Camden Holdings.
We therefore asked STV for its comments on the complainant’s concern, with regard to the following Code Rules:
- 2.2 – “Factual programmes or features or portrayals of factual matters must not materially mislead the audience.”
- 10.1 – “Broadcasters must maintain the independence of editorial control over programme content.”
- 10.3 – “Products and services must not be promoted in programmes.”
- 10.4 – “No undue prominence may be given in any programme to a product or service.”
- 10.5 – “Product placement is prohibited.”
STV said it had “set out to highlight how a leading celebrity overcame a learning difficulty”, adding that the feature “was not an examination of treatments of dyslexia … not an endorsement of the Dore Programme” and “ not a documentary about Dore.” Nevertheless, the broadcaster regarded the Dore Programme poster as a typically suitable backdrop for the feature and believed it contextualised the interview with relevant branding. It also noted that the poster was partly obscured by Mr Logan.
STV said that it was “unaware of any business relationship between Mr Logan and Dore, or any of its associated companies”, prior to the interview. Dore had sent STV a news release claiming that its programme could help people with the condition and offered the broadcaster an opportunity to interview Mr Logan, as “a well-known individual who could talk with knowledge about the condition.”
STV said that Mr Logan formerly played Rugby Union for Scotland and currently played for London Scottish, adding that the news interest in this feature was not the Dore Programme itself, but that Kenny Logan was willing to talk candidly about his own experience of dyslexia, which it believed would be of interest to its viewers.
STV described the broadcast as a “feather-weight magazine style programme which presented Kenny Logan’s personal journey and battle with dyslexia.” However, the broadcaster confirmed that, in accordance with STV’s standard practice for news interviews, it had not paid Mr Logan for his appearance and no pre-conditions concerning either editorial content or production style were imposed on it; neither had it received any payment or other valuable consideration from Dore for broadcasting the feature.
The broadcaster admitted that “Mr Logan’s impression of the Dore Programme was certainly part of the story” but it did not believe the feature gave the impression that STV accepted it as a successful option for dyslexics, quoting one of the programme’s presenters, who it claimed had stated, “This doesn’t sound like the answer to people who don’t know about it.” STV acknowledged that the Dore Programme was described as “a revolutionary support programme” and a “revolutionary treatment.” The broadcaster said that these references intended to convey that the Dore Programme was more “a fundamental change to established procedures” than an evaluation of that change. Subsequently, however, STV claimed that, “at no time did STV lead viewers to believe that the Dore Programme represented a fundamental change to established procedure around treating dyslexia”, adding that, “in relation to reference to the Dore Programme as “new”, STV submits that in relative terms, by any standards of medical treatment, less than 10 years is indeed current or recent.”
STV summarised its position by saying: “…the story of Mr Logan was presented in a manner in which [The] Five Thirty Show viewers are used to. STV does not believe that the audience was at any time misled into believing that the story was a documentary about dyslexia involving any endorsement of a named medical treatment.”
Ofcom accepts that STV was editorially justified in covering Mr Logan’s personal experience of dyslexia and notes that the broadcaster says it had been unaware of any business relationship between Mr Logan and Dore. Ofcom also acknowledges that viewers may not expect the same degree of journalistic rigour from “a feather-weight magazine style programme” than an established news and current affairs output. Nevertheless, Ofcom was surprised that prior to broadcast no background checks were carried out into the Dore Programme itself or Mr Logan’s association with Dore. This is especially the case since the feature had been instigated after receipt of a news release from Dore, offering the broadcaster an opportunity to interview him.
This resulted in the personal endorsement of the Dore Programme, a commercial product or service, (“Dore has changed my life”) by a director of Dore’s holding company (Camden Holdings), in a report that was filmed in Dore’s Edinburgh clinic. The report also screened a Dore poster promotion to the side of Mr Logan throughout his interview. In the context of a feature covering how Mr Logan had struggled with dyslexia “until he discovered a revolutionary support programme”, Ofcom considered that this material promoted Dore, in breach of Rule 10.3 of the Code, which prohibits the promotion of products and services in programmes.
Furthermore, the report not only featured constant references to Dore, but mentioned no specific alternative approaches to tackling dyslexia, referred viewers to STV’s website for further details about the Dore Programme and failed to question its efficacy. The broadcast therefore gave undue prominence to Dore, in breach of Rule 10.4 of the Code.
STV claimed not to have given the impression that it accepted the Dore Programme as a successful option for dyslexics, as the interviewer had questioned its validity when he said, “This doesn’t sound like the answer to people who don’t know about it.” However, in Ofcom’s view, far from challenging the Dore Programme, the interviewer simply appeared to be seeking further detail about how it worked, when he actually said, “Exercise and balance – it doesn’t sound like the answer to people who don’t know about it – how does it work?”
Ofcom considers that STV presented the Dore Programme as a brand new breakthrough, when it said that Mr Logan had struggled with dyslexia “until he discovered a revolutionary support programme” and then added, “…new help is at hand. The Dore’s Clinic in Edinburgh offers revolutionary treatment for those battling learning difficulties.” While STV believes it reflected “new” as meaning “current or recent”, the ITC found in its Complaints & Interventions Report of 1 September 2002 that the ‘cerebellar theory’ of dyslexia, upon which the Dore Programme is based, had originated over thirty years previously.
Furthermore, the broadcaster not only achieved its aim to portray the Dore Programme as “a fundamental change to established procedures”, but also failed to question its efficacy. Ofcom also notes that a simple internet search concerning Dore and/or Kenny Logan provides links to websites that question the efficacy of the Dore Programme.
The ITC finding stated that:
“ Having consulted with leading dyslexia organisations and other practitioners in the field, the ITC is satisfied that these claims by the programme that the DDAT treatment was both revolutionary and a breakthrough were not sustainable. The ‘cerebellar theory’ of dyslexia originated at least thirty years ago and exercise-based regimens, without the use of drugs or supplements, have been available in this country and the USA prior to the establishment of DDAT”.
However, this item presented the Dore Programme as both new, which it was not, and effective, as it was unchallenged. Further, it presented the Dore programme in a promotional and unduly prominent manner, as described above. In Ofcom’s view, STV therefore presented a misleading impression of the Dore Programme to its viewers. In portraying matters relating to health and, in particular, treatment options, Ofcom considers that there is clear potential for harm in terms of viewers making choices relating to their own health. We consider that broadcasters should take particular care to ensure that viewers are not misled as to the nature and efficacy of any particular treatment and take a balanced approach so as not to mislead. We therefore found that the broadcast portrayed factual matters that materially misled viewers, in breach of Rule 2.2 of the Code.
Breach of Rules 2.2, 10.3 and 10.4
BBC 6 Music, 12 September 2008, 13:00
Nemone is a daily magazine programme hosted by the DJ Nemone Metaxas. Its focus is contemporary music, however, occasionally the programme features guests from other genres of entertainment.
This edition featured an interview with American comedian Doug Stanhope. During the interview, Mr Stanhope commented that the Republican vice-presidential candidate, Sarah Palin, was a suitable target for his satirical style of humour. The interview included the following:
Doug Stanhope: [Ms Palin] is a 44 year-old mother of five, two of which are retarded.
Nemone Metaxus: These are your, [laughs] obviously, your views…
Doug Stanhope: One’s got Down’s Syndrome and the other volunteered for Iraq . So that’s two retards out of five.... Oh nothing. They give me nothing, nothing but blank looks.
Nemone Metaxus: Doug this is your opinion, your opinion of what’s happening back home, so obviously, if something kicks off in America …
Doug Stanhope: For Pete’s sake, don’t stare at me like that. The woman has a baby with Down’s Syndrome; how can America get behind her when even God obviously hates her. [laughs]
Nemone Metaxus: I think we’ll leave that to you. That’s obviously what you think about I’m sure there are some….
Doug Stanhope: So that’s some of the stuff we’ve been dealing with.
Ofcom received a complaint from a listener who was offended by Mr Stanhope’s use of the word “retarded” to describe someone with Down’s Syndrome. The complainant was also concerned that the presenter did not seriously challenge these remarks or apologise to listeners.
Ofcom asked the BBC for its comments under Rule 2.3 of the Code which requires material that may cause offence to be justified by the context.
The broadcaster pointed out that BBC 6 Music is aimed at an adult audience and that Friday’s edition of Nemone in particular, regularly features guests with edgier, more adult orientated material. It also noted that the presenter warned listeners to prepare themselves “for a vitriolic assault on the senses” adding that her guest is “often described as the standard bearer for extreme American comedy.” With this in mind, the BBC argued that listeners should have been expecting some outspoken and controversial humour to follow.
Nevertheless, the BBC recognised that these particular comments were potentially offensive and said it regrets that the presenter did not issue a clear apology at the first available opportunity. As a consequence, it has reviewed its procedure for briefing guests on tailoring their material to ensure it is suitable for broadcast. Additionally, the BBC said it will consider pre-recording interviews with certain guests to reduce the likelihood of a reoccurrence.
Ofcom notes that the comedian made references to individuals as “retarded”. Research indicates that views on this term are split. It is considered by some to be highly offensive, while others are less concerned by its use.
Ofcom acknowledges that BBC 6 Music attracts a predominantly adult audience and that regular listeners who are familiar with the irreverent style of its presenters and guests may not necessarily find the use of words such as “retard” offensive.
When dealing with generally accepted standards, the Code refers specifically to offence that may be caused by discriminatory treatment and language based on disability. In this case, the word “retarded” was used in a particularly derogatory manner. Further, references to Down’s Syndrome were also made in a clearly offensive way. First, a child with Down’s Syndrome was described as retarded. Second, there was a highly offensive comment which described Down’s Syndrome as a form of punishment by God. Both of these, in Ofcom’s opinion, went well beyond generally accepted standards and the audience’s expectations for this programme. In this case in was clear that the context did not justify these offensive comments.
Ofcom was also concerned that during the broadcast the presenter did not give what it considered to be a sufficient reprimand or apology, which could have served to reduce the offence.
While we welcome the BBC ’s procedural review for briefing guests and its acceptance that such material was inappropriate, Ofcom concludes that this programme was in breach of Rule 2.3 of the Code.
Breach of Rule 2.3
96.3 Rock Radio, 26 September 2008, 19:40
96.3 Rock Radio is a classic rock commercial radio station, operated by GMG Radio. It is broadcast in Glasgow, Renfrewshire and on DAB Digital Radio in Edinburgh . Donald Macleod, a Scottish music industry entrepreneur and newspaper columnist, presents a show on weekdays from 18:00 to 22:00 .
During the broadcast in question, the presenter said the following when introducing the song ‘Black Hole Sun’ by Soundgarden:
“Barack Obama’s favourite song. Your Mum’s got a big black hole, son” .
A listener contacted Ofcom to complain, stating that this comment was racist.
Ofcom asked GMG Radio to comment with reference to Rule 2.3 (“in applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context”).
GMG Radio stated that 96.3 Rock Radio has a “free thinking and often controversial attitude, going beyond what is normally heard from commercial radio services in the area”. It said that the station is aimed at a male audience, 35 years and over, generally featuring male oriented events and interests.
With regard to the comment in question, GMG Radio acknowledged that the comment was “completely ill advised and regrettable”, though it stated that it was not intended to cause unwarranted offence. The presenter said his comment had been made “without any racial intent and was uttered whilst under some pressure within the studio”. Further, it stated that the presenter was “genuinely appalled and extremely concerned at making the remark”, which was an attempt at adult humour.
GMG said that in response to the complaint, the presenter has apologised to the station management, the complainant and Ofcom for the unintentional offence caused. GMG Radio also stated that the presenter has pledged to comply fully with all aspects of the Code in making any future broadcasts.
Ofcom noted the broadcaster’s response that, although completely ill advised and regrettable, the comment was not intended by the presenter to cause offence. Ofcom also noted the apologies made by the presenter.
Ofcom does not assess whether behaviour or language is racist; this is a matter for relevant authorities. However, Ofcom does require that generally accepted standards are applied in radio programmes. It is concerned that this comment, which clearly is potentially offensive on the grounds of race, had been included in a broadcast without due consideration for the way it may have been interpreted by listeners and without any apology within the programme itself.
Ofcom concluded that the comment was not justified by the context and breached generally accepted standards. It was therefore in breach of Rule 2.3.Breach of Rule 2.3
The Live Hour
Xfm Scotland, 12 October 2008, 20:00
Xfm Scotland broadcast a recording of a live performance by the band Oasis. One listener complained that during the programme several examples of offensive language were broadcast when children might be listening. On reviewing a recording of the material provided by GCap Media Ltd. (“GCap”), which controls and provides compliance for the station, Ofcom noted that the programme contained the word “cunt”, as well as several instances of the word “fucking”.
Ofcom wrote to GCap, asking it to respond under Rule 2.3 (material that may cause offence must be justified by the context).
GCap apologised for the broadcast. It said that immediately following transmission, it had realised that offensive material, which it deemed to be completely unacceptable, had been broadcast. Following an internal investigation, it discovered that a producer had used the unedited version of this particular concert, despite the fact that GCap’s standard procedures are that all such material must be double-checked for inappropriate content before broadcast.
GCap contacted the person who had complained to Ofcom (the same person had complained directly to the station) to apologise. It also broadcast an on-air apology on Xfm Scotland at approximately the same time the following day. GCap said that since the broadcast, it has taken formal disciplinary action against the producer responsible and has strengthened its compliance procedures at Xfm Scotland .
GCap asked Ofcom to note, however, that listeners to Xfm Scotland expected edgier content and that very few children would be listening to the station at that time.
Ofcom’s research[(-1-)] confirms that many listeners find “fuck” and its derivatives, and “cunt”, some of the most offensive language. Ofcom welcomes the admission by GCap of the compliance error in this case, its apologies both to the complainant and on-air, and the fact that the broadcaster has tightened up compliance procedures.
In general, offensive material can be broadcast, so long as it is justified by the context. In this case, given factors such as the time of broadcast, the effect that the material might have had on listeners who may have come across the material unawares, and the lack of any warning to the audience, Ofcom considered that the broadcast of this offensive material was not justified by the context. Therefore it concludes that there was a breach of generally accepted standards and so of Rule 2.3.
Breach of Rule 2.3
All-Ireland Final Competition
UTV, 13/14 September 2008, various times
Between 11 and 16 September 2008 UTV ran a viewers’ competition to win two tickets to the Gaelic Athletic Association All-Ireland Final. Entry was by premium rate service (“PRS”) telephone line (though not SMS, which UTV does not use for competitions) and free online entry.
The competition posed a question about the All-Ireland Final and required entrants to choose one of three answers. The winner would later be chosen randomly from all the entries received that gave the correct answer.
On 16 September 2008 UTV notified Ofcom of problems with the processing of PRS entries over the weekend of 13 and 14 September. On 23 September, when UTV had fuller details of the background to the problem, the broadcaster wrote to Ofcom with a more detailed explanation both of what went wrong and the steps taken to ensure that viewers were not disadvantaged.
In light of the letter of 23 September Ofcom sought further comments from the broadcaster under Rule 2.11 of the Code (fair conduct of competitions).
UTV supplied extensive documentation detailing the extent of the problem, the efforts made to unearth the reasons for it, and the remedial action taken.
The broadcaster said that over the weekend of 13 and 14 September some 296 calls (made by 241 callers) had incurred a premium charge but had not been properly logged. As a result these entries had been excluded from the competition. UTV said the reason for the logging problem lay in the system operated by the service provider[(-1-)].
On Monday 15 September, when the technical troubles were first known to the broadcaster, it had cancelled any further on-air publicity for the competition as this promoted PRS entry. The telephone lines themselves were closed on 16 September; any calls made up to closure were eligible and were entered. Online entries were not affected and were allowed to continue.
UTV’s submission further set out that it had sought urgently to understand the full details of the problem and to ensure that swift action was taken to reimburse callers. It said that all possible steps were taken to contact the 241 callers affected so that they could be entered into the competition and offered refunds.
230 callers were contacted and offered refunds; for those that said they did not require a refund, a donation was made to a cancer charity. The remaining callers had either withheld their numbers (and therefore could not be contacted), did not wish to speak to UTV or did not respond to messages left. In all, 272 entries were reinstated to the competition draw, £182 given in refunds and £114 donated to charity.
The broadcaster also said that it had immediately terminated its business relationship with the service provider. UTV said that it would suspend all competitions until a new service provided had been appointed.
Ofcom welcomed the broadcaster’s effective and speedy action in cancelling further promotions for the PRS route of entry, establishing the cause of the problem, putting right excluded entries and effecting refunds or charitable donations.
We also acknowledge UTV’s immediate notification of the matter to Ofcom and the openness and efficiency with which the broadcaster dealt with Ofcom’s further enquiries. It is clear that the technical deficiencies and their consequences were deeply regretted by the broadcaster.
For these reasons, Ofcom has concluded that the issue is resolved.
Ofcom wishes to remind television licensees that under their Ofcom licences they are required to notify Ofcom of any “significant irregularities or other problems” in the operation of PRS competitions and votes.
Ofcom expects all licensees to take particular care when inviting listeners and viewers to take part in competitions. Code breaches can arise from errors, however inadvertent. These remain the responsibility of the licensee even where they arise from systems or actions in the control only of contractors or agents. Broadcasters must make sure they are fully familiar with the Guidance[(-2-)] to Section 2 of the Code that deals extensively with competitions.Resolved
1.- PRS service providers are companies that contract directly with network operators for premium rate numbers and provide the technical means by which calls are received and processed. When acting for other parties, such as broadcasters, service providers are essentially providing a necessary technical link in the chain between caller and broadcaster.
2.- This is available at: http://www.ofcom.org.uk/tv/ifi/guidance/bguidance/guidance2.pdf
Not in Breach
BBC Two, 2 November 2008, 20:00
Top Gear is a car-focused magazine programme primarily aimed at car enthusiasts. In this edition, the three presenters were given the challenge of customising second-hand lorries and performing certain tasks to experience being an HGV driver.
In one sequence, while discussing the upcoming lorry challenge Jeremy Clarkson said to the other presenters:
“What matters to lorry drivers? Murdering prostitutes? Fuel economy?”
A few minutes later, whilst driving a lorry, Jeremy Clarkson said:
“This is a hard job [driving a lorry] and I’m not just saying this to win favour with lorry drivers: change gear; change gear; change gear; check your mirrors; murder a prostitute…”
Ofcom received 339 complaints about comments made by Jeremy Clarkson concerning lorry drivers.
Ofcom considered these complaints under Rule 2.3 (material that may cause offence must be justified by the context).
Top Gear is a long-running entertainment programme and viewers, in general, have come to expect a certain level of outspoken, adult-oriented humour from the presenters.
Taste in comedy can vary widely between people and Ofcom recognised that the comments made by Jeremy Clarkson could be offensive to some people. Ofcom is not an arbiter of good taste but rather it must judge whether a broadcaster has applied generally accepted standards by ensuring that members of the public were given adequate protection from offensive material. In each case when reaching a decision on whether material breached the Code, Ofcom must take into account the broadcaster’s right to freedom of expression, which includes the right to hold opinions and to receive and impart information and ideas without interference by public authority[(-1-)]. The Code places no restrictions on the subjects covered by broadcasters, or the manner in which such subjects are treated, so long as offensive material that is broadcast is justified by the context.
On this occasion, Ofcom accepts that the comments made by Jeremy Clarkson could shock some viewers. However, Ofcom did not believe the intention of the comments could be seen to imply that all lorry drivers murder prostitutes, nor would it be reasonable to make such an inference. In Ofcom’s view, the presenter was clearly using exaggeration to make a joke, albeit not to everyone’s taste. The comments should therefore been seen in that context.
It is often the case that humour can cause offence. To restrict humour only to material which does not cause offence would be an unnecessary restriction of freedom of expression. However, in transmitting potentially offensive material, broadcasters must ensure that they apply generally accepted standards.
Ofcom considered that the large majority of the audience would have understood the comments as being made for comic effect, and were in keeping with what would normally be expected from this presenter in this particular programme.
Given the intent of the comment, the context of the programme and the time of broadcast, Ofcom concluded that the broadcast of this material was justified by the context. Therefore, the programme was not in breach of Rule 2.3.
Not in Breach
Harry and Paul
BBC1, 26 September 2008, 21:00
Ofcom received 42 complaints regarding a sketch in the Harry and Paul show which depicted a so-called upper class character, played by Harry Enfield, encouraging a “Northern” man - whom he treats as his dog - to “mate” with his neighbour’s Filipina maid. The scene showed the “Northerner”, known as Clive, failing to show interest in the maid and the Harry Enfield character shouting encouragement and urging Clive to “mount her” before sending the maid back to the neighbour’s home.
The complainants expressed concern that the sketch was offensive to the Filipino community and women in general, by presenting the Filipina as an object of sexual gratification.
Ofcom recognises the sensitivities involved when comedy makes reference to or represents any particular ethnic community in the United Kingdom . In this case it was a Filipino who featured in the broadcast. We therefore considered this material in the light of Rule 2.3 (generally accepted standards) which says that “…broadcasters must ensure that material which may cause offence is justified by the context…”
Context includes such factors as the editorial content of the programme, the degree of harm and offence likely to be caused and the likely expectation of the audience.
This particular sketch was one of a number which ran throughout the series in which Harry Enfield plays an extreme comedy stereotype of an upper class “toff” living in the South of England. This caricature has little sensitivity to those outside of his social class. Consequently, he treats Clive like his dog. It is in this context that the sketch showed the Harry Enfield character encouraging Clive to “mate” with his neighbour’s domestic help, for whom he also has little or no respect.
Whilst Harry and Paul is a new series, Harry Enfield and Paul Whitehouse are long established comedians whose style of humour often focuses on presenting characters in an exaggerated and stereotyped way for comic effect. The comedy frequently comes from the absurdity of the situation.
In terms of the degree of offence and the likely expectation of the audience, we considered whether the material was justified by the context of the sketch as a whole.
As noted above, this item featured established comedians and the sketch was typical of the material presented by Harry Enfield and Paul Whitehouse in this, and other series. Therefore it is Ofcom’s view that the material would not have exceeded the likely expectation of the vast majority of the audience.
Further, in Ofcom’s view, there was no intention to ridicule women or the Filipino community in this sketch. The target of the humour was very clearly the upper class character played by Harry Enfield who holds such a deluded view of his social superiority that he treats individuals with lower social status with ridiculous disdain. The Filipina domestic help was featured as a character in the sketch to highlight this extreme and ridiculous behaviour.
Comedy often, and rightly, engages with challenging and sensitive subjects such as social class. In this respect Ofcom must regulate potentially offensive material in a manner that also respects freedom of expression – the broadcasters’ right to transmit information and the viewers’ right to receive it. Ofcom must therefore seek an appropriate balance between protecting members of the public from harm and offence on the one hand and the broadcaster’s right to freedom of expression on the other, taking into account such matters as context.
Although this sketch may have caused offence to some individuals, it explored the issue of social class in an absurd way which was not intended to reflect real life. In our view this was the approach and effect of this sketch. On balance, it is Ofcom’s view that the material did not breach generally accepted standards because it was justified by the context.
Not in Breach
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