Broadcast Bulletin Issue number 127 - 09|02|09
Penn & Teller: Bullshit!, Axe Gamekillers, Overnight Hit Mix, Saturday Night Warm-Up, Channel U, Fizz, Minx Girl Promotion, Hell’s Kitchen USA, Funniest Ever You’ve Been Framed, George Lamb, The Alex Zane Breakfast Show, Programme trailer, Music Express, Complaints by Dr Christian Farthing & Dr Peter Proud.
Penn & Teller: Bullshit!
TV6 Sweden, 27 September 2008 at 19:55
TV6 is a Swedish language channel licensed by Ofcom that is controlled and complied by Viasat Broadcasting UK Limited (“Viasat”). Viasat holds 27 Ofcom licences for separate television channels which broadcast from the United Kingdom to various Scandinavian countries, including Sweden . The Viasat compliance department is based in London and manages compliance for all these licensees centrally. TV6 is not on the Sky Electronic Programme Guide and cannot be received in this country on normal satellite equipment.
Penn & Teller: Bullshit! is a US entertainment series, originally broadcast on the US subscription channel Showtime. The series is hosted by the two American comedians/magicians Penn Jillette and Teller (known as Penn & Teller). The programme is described on the official Showtime website as a “high-octane, weird, wacky, entertaining journey through some bizarre territory that no one else is brave enough to touch” and aims to cause controversy by applying Penn & Teller’s critical approach to various beliefs and philosophies. Previous topics featured in the series had included ‘new age medicine’, ‘being green’ and ‘world peace’. The episode complained of was called ‘War on Porn’ and was broadcast in English with Swedish subtitles.
Ofcom received a complaint from a Swedish viewer about the sexual content included in the programme. The viewer was particularly concerned that the programme was inappropriately scheduled before the watershed on a Saturday evening, when young children were likely to be watching.
Ofcom obtained a copy of the programme from Viasat. It featured frequent, but brief, clips of adult sexual content. These included shots of men and women simulating sexual intercourse, women touching themselves and other women in a sexual manner, shots of naked breasts and footage of an adult industry convention - including shots of sex toys, such as dildos and whips.
The programme also contained varying levels of offensive language. It was broadcast in English with Swedish sub-titles. The original sound-track in English contained several uses of the word “fuck” together with references to “cunt” and “motherfucker.” It also featured milder language such as, “dick”, “tits”, “cock”, and “pissed”.
Ofcom commissioned an independent translation of the Swedish subtitles used in the broadcast in order to identify how the language used in the English original sound-track was translated for the Swedish audience. The English translation indicated that the Swedish subtitles also included references to the word “fuck” and “cunt”, together with references to milder language, such as “cock” and “tits.”
We asked Viasat for its comments in relation to the following Rules of the Code:
- Rule 1.3 - Children must be protected by appropriate scheduling from material that is unsuitable for them;
- Rule 1.14 - The most offensive language must not be broadcast before the watershed or when children are particularly likely to be listening;
- Rule 1.16 - Offensive language must not be broadcast before the watershed, or when children are particularly likely to be listening, unless it is justified by the context;
- Rule 1.17 - Representations of sexual intercourse must not occur before the watershed, or when children are particularly likely to be listening, unless there is a serious educational purpose; and
- Rule 2.3 - Material which may cause offence must be justified by the context.
Viasat highlighted that TV6 Sweden is aimed at men from the ages of 15 to 49 and therefore its viewers expect more challenging programming.
With regard to the offensive language featured in the programme, the broadcaster pointed out that although the language is offensive in English the same words are not regarded as offensive in Swedish. It stated that, although English offensive language is used throughout the programme, the majority of this offensive language was either not translated into Swedish or translated into mild or inoffensive language in the subtitles. Viasat also highlighted that the broadcast of offensive language in Sweden is not restricted to post-watershed programmes, and the viewer expectations of a Swedish audience are different from those of an English speaking audience. Viasat therefore believed the programme was suitable for the time of broadcast with regard to language.
Concerning the sexual content, however, Viasat acknowledged that the scheduling of the programme was in breach of its compliance procedures. The programme had been given a post-watershed restriction but nonetheless the scheduling team took an independent decision to show this programme at 19:55 , without prior consultation with the Viasat compliance department.
Viasat said it has pointed out the seriousness of this error to those involved. It has also employed new staff in the scheduling department to ensure that proper compliance procedures are adhered to at all times in the future.
Ofcom noted that the programme was broadcast in English, with Swedish subtitles. It had regard to Viasat’s comments concerning the language used in the programme, including its statement that offensive language is not restricted to post-watershed programmes in Sweden . It also took into account that some of the most offensive language that featured in the English original sound-track of the programme, such as “motherfucker”, was either omitted or replaced with milder language when translated in the Swedish subtitles. However, Ofcom was concerned that certain references to the most offensive words in English were also broadcast in the subtitles translated into their Swedish equivalent. These included references to “fuck” and “cunt.”
Ofcom recognises that Swedish audiences may have different expectations regarding the use of offensive language before the watershed. However, Viasat is a broadcaster licensed by Ofcom and therefore it is required to comply with its licensing obligations in the United Kingdom . This includes ensuring that all of its broadcast output complies with the Code. Rule 1.14 of the Code states unequivocally that “the most offensive language must not be broadcast before the watershed…” Ofcom therefore concluded that the broadcast of “fuck” and “cunt” before the watershed was clearly unacceptable and Rule 1.14 of the Code was breached.
Rule 1.16 of the Code states that “offensive language must not be broadcast before the watershed, or when children are particularly likely to be listening, unless it is justified by the context. In any event, frequent use of such language must be avoided before the watershed.”
With regard to context, Ofcom noted that the programme was broadcast on a Saturday night at 19:55 , and not preceded by any warning. Ofcom acknowledges that the channel is aimed at men from the ages of 15 to 49. However, child audience figures provided by the independent Swedish regulator, GRN, indicate that approximately 7,000 children between the ages of 4 and 15 watched this programme. Therefore, Viasat must take account of the fact that the programme was scheduled and broadcast at a time when children could have been (and in fact were) viewing. In light of this, Ofcom considered that the frequency and nature of the offensive language used was not justified by the context and was therefore in breach of Rule 1.16 of the Code.
With regard to the sexual content of the programme, Ofcom noted Viasat’s acknowledgement that the programme was broadcast at an inappropriate time and its explanation for this error. Rule 1.17 of the Code states that “representations of sexual intercourse must not occur before the watershed, or when children are particularly likely to be listening, unless there is a serious educational purpose.” Ofcom noted that that the programme included brief scenes of sexual acts, including men and women simulating sexual intercourse. Given that the programme’s format was an entertainment series and was not used for educational purposes, Ofcom considered that this material was therefore in breach of Rule 1.17.
Given these breaches of Rules 1.14, 1.16 and 1.17 relating to material shown before the watershed, Ofcom also considered the programme in breach of Rule 1.3, which requires that “children must…be protected by appropriate scheduling from material that is unsuitable for them”.
With regard to Rule 2.3, this makes clear that “in applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context.” “Context” in turn includes a variety of different potential factors such as the editorial content of the programme, the time of broadcast, the effect of the material on viewers who may come across it unawares and audience expectation.
With regard to the language used in the programme, in general, offensive material can be broadcast, so long as it is justified by the context. Ofcom again noted that the channel was aimed at a male audience aged 15 to 49. However, given factors such as the time of broadcast - Saturday night at 19:55 - and the effect that the material might have had on viewers who may have come across it unawares, Ofcom considered that the broadcast of this offensive language at this time was not justified by the context. The programme therefore did not apply generally accepted standards and breached Rule 2.3 of the Code.
With regard to the sexual imagery in the programme, Ofcom considered that, given the nature and strength of the material, this had a clear potential to cause offence. Therefore its treatment by the broadcaster required justification in the context to provide adequate protection for viewers. Ofcom acknowledges that the channel is aimed at an adult male audience and has an audience expectation for more challenging content. However, Ofcom was particularly concerned with the nature of the content and the time of broadcast. The programme contained numerous clips of simulated sexual intercourse and nudity. Taking into account the scheduling of the programme and that it was transmitted without a warning, Ofcom was concerned by the degree of offence likely to be caused to viewers watching at this time and the significant effect this material would have had on those who came across it unawares. In Ofcom’s view, in light of these factors, the broadcast of this offensive material was not justified by the context and was a breach of generally accepted standards. Therefore Rule 2.3 was also breached with regard to the sexual content of the programme.
Breach of Rules 1.3, 1.14, 1.16, 1.17 and 2.3Please see note on page 12 concerning Viasat’s compliance record
TV6 Sweden, 12 October 2008, 13:30
TV6 is a Swedish language channel operated by Viasat Broadcasting UK Limited (“Viasat”).
Axe Gamekillers is a programme in which a male contestant who believes he is on a reality dating show, goes on a series of dates with an actress who he believes to be a fellow contestant. Every situation he finds himself in is staged, and during every date he is confronted by a ‘Gamekiller’ (an actor or actress whose purpose is to throw the date off course and ruin the contestant’s chances of success). If the contestant overcomes the challenges faced on the date his name is etched onto the Axe Gamekillers chalice.
The series was fully funded by Axe (a brand of men’s deodorant) and acquired by Viasat from the USA . The programme contained the following references to Axe:
- Axe was etched on the Axe Gamekillers chalice which was shown on two occasions;
- On three occasions, during the sections of the programme where the contestant’s score was calculated, the word ‘Axe’ appeared at the bottom of the screen; and
- On three occasions, during sections of the programme called ‘Axe Tips’, the narrator referred to ‘Axe Tips’ and this appeared as text in the centre of the screen. The word ‘Axe’ also appeared at the bottom of the screen during these sections.
A viewer complained that the purpose of the programme was to “expose the AXE trademark”.
On viewing a recording of the programme, Ofcom noted that, in addition to Axe funding the series, the programme was also sponsored by Viasat-To-Go (Viasat’s mobile TV business). The voice-over in the sponsorship credits at the beginning and end of the programme, as well as either side of the commercial break, stated:
“Axe Gamekillers sponsored by Viasat-To-Go, Real TV in your mobile. Learn more on viasat.se/mobil-tv”.
We asked Viasat for its comments in relation to the following Code Rules:
- Rule 9.5 - there must be no promotional reference to the sponsor, its name, trademark, image, activities, services or products or to any of its other direct or indirect interests. There must be no promotional generic references. Non-promotional references are permitted only where they are editorially justified and incidental.
- Rule 9.7 - the relationship between the sponsor and the sponsored channel or programme must be transparent.
- Rule 9.13 – sponsorship must be clearly separated from advertising. Sponsor credits must not contain advertising messages or calls to action. In particular, credits must not encourage the purchase or rental of the products or services of the sponsor or a third party.
Rule 9.5 – sponsor references
Viasat said that the references to Axe within the programme appeared “occasionally” on the Axe Gamekillers chalice and during the ‘Axe Tips’ sections. It said that it did not consider the references to be unduly prominent, nor promotional in the context of the programme, and stated that they formed ”an integral part of the of the programme editorially”. The broadcaster added that it considered the reference to Axe on the chalice to be editorially justified because “Axe is the sponsor of the programme and therefore eligible to provide a prize to the winning contestants”.
Rule 9.7 - transparency of sponsorship arrangement
Viasat said that the programme was sponsored by Axe and Viasat-To-Go. The original name of the programme was ‘The Gamekillers’, but when TV6 acquired the programme, it chose to refer to it as Axe Gamekillers in the sponsorship credits, in the viewer competition at the end of the programme, and in Swedish programme listings. Viasat added that, in its view, these references to Axe made the sponsorship arrangement transparent.
Rule 9.13 – sponsorship must be clearly separated from advertising
In relation to the Viasat-To-Go sponsorship credit, the broadcaster said that the statement “Real TV in your mobile. Learn more on viasat.se/mobil-tv” provided a brief description of the service plus contact details for the viewer to find out more about the sponsor’s service. Viasat said that “the inclusion of ‘Learn more on’ [was] not promotional or encouraging, but a standard way of communicating in relation to a website address”.
Ofcom’s rules on programme sponsorship prevent “unsuitable sponsorship” by ensuring that:
- the editorial independence of the broadcaster is maintained and that programmes are not distorted for commercial purposes;
- sponsorship arrangements are clearly identified and transparent; and
- sponsor credits are separated from programme content and distinct from advertising.
Rule 9.5 – sponsor references
Programme sponsorship provides sponsors with an opportunity to associate their brands/products with programmes. It does not however provide sponsors with an opportunity to ‘place’ their brands within programme content. There must be no promotional references (actual or generic) to a sponsor or a sponsor's product or service within a programme it is sponsoring. Any non-promotional reference to a sponsor or its product or service must be editorially justified and must also be incidental. Guidance issued by Ofcom states that “A reference to the sponsor within a programme must not be a condition of the sponsorship arrangement. Broadcasters should be aware that a reference to a sponsor within a programme may create a higher presumption of editorial influence by the sponsor”.
Ofcom is aware that the programme was originally produced for broadcast as part of an advertising campaign for Axe Dry deodorant in the USA . The references to Axe throughout the programme were therefore likely to have been included specifically for the purpose of promoting the brand.
Ofcom did not accept the broadcaster’s argument that the references to Axe during the programme were editorially justified. The references to Axe within the tips and scoring sections of the programme, and on the chalice did not appear to serve any clear editorial function other than as prominent references to the sponsor’s brand. These therefore appeared to Ofcom to have been included for the purpose of promoting the sponsor within the programme. The programme was therefore in breach of Rule 9.5 of the Code.
Rule 9.7 – transparency of sponsorship arrangement
Ofcom noted that Viasat had re-named the programme Axe Gamekillers as the broadcaster considered that this made Axe’s sponsorship of the programme clear. Ofcom also noted that the broadcaster had used sponsor credits around the programme to identity Viasat-To-Go’s sponsorship.
Ofcom considered that the use of these different methods of identifying the two sponsors had the potential to create viewer confusion over the nature of the relationship between Axe, Viasat-To-Go and the programme. As it was not apparent who the programme sponsor was and who had funded the programme, Ofcom judged the programme to be in breach of 9.7 of the Code.
Rule 9.13 – sponsorship must be clearly separated from advertising
Rule 9.13 states that sponsorship must be clearly separated from advertising. Sponsor credits must not contain advertising messages or calls to action. In particular, credits must not encourage the purchase or rental of the products or services of the sponsor or a third party.
Guidance issued by Ofcom states:
“If sponsor credits contain contact details, these include the minimum information necessary to allow viewers to make initial contact with the sponsor should they so wish. Contact details may include a description of the means of contact (e.g. tel:, text:) but must not invite or exhort viewers to contact the sponsor. Any direct appeals to the viewer to buy or try the sponsor’s goods or services or to contact the sponsor for more information are likely to breach Rule 9.13”
Ofcom judged “Learn more on viasat.se/mobil-tv” to be an invitation to the viewer to contact the sponsor, in breach of Rule 9.13.
Breach of Rules 9.5, 9.7 and 9.13
Note regarding Viasat’s compliance record
Ofcom has significant concerns regarding the overall compliance record of a number of television services operated by Viasat and broadcast from the United Kingdom to Scandinavia . The 27 licences held by Viasat are complied and managed centrally by a compliance department based in London . Ofcom considers that a Licensee which holds multiple licences and chooses to comply them centrally should exercise appropriate care in the management and supervision of all of its channels. Should breaches occur on separate channels in these circumstances Ofcom may consider the contraventions together.
It appears to Ofcom that the broadcaster may have inadequate procedures in place to ensure compliance with the Code. In light of this, Ofcom will meet with Viasat at the broadcaster’s office, to discuss its compliance record and processes.
Viasat is also put on notice that any further significant breaches of the Code will be taken extremely seriously and, in such circumstances, Ofcom will consider the imposition of a statutory sanction, which includes financial penalties.
The sponsorship rules in the Code also apply to advertiser-funded programmes.
See footnote 2.
Overnight Hit Mix
Your Radio (West Dunbartonshire, Argyll & Bute), 11 October 2008, 00:00
This programme was pre-recorded and broadcast ‘as live’. During the programme, the presenter announced her forthcoming birthday and then solicited texts for anyone having a birthday “this weekend”.
The presenter said: “…text me in if you want a ‘Happy Birthday’ to yourself, to somebody, to your friend – 60300 – and we’ll get them on air next…”
A listener who responded to the invitation subsequently accessed the station’s website which indicated that the programme had been pre-recorded. The listener therefore realised that her message could not have been acknowledged on air at the time of the broadcast.
We asked Your Radio for its comments on the matter, with reference to Rule 2.2 of the Code, which requires that “… items or portrayals of factual matters must not materially mislead the audience.”
Your Radio said that the presenter’s invitation to listeners to text the programme was “a spur of the moment error of judgement” and that, “in trying to make her show more entertaining and interactive [the presenter] gave out part of the text contact details.” The broadcaster said that the presenter was “a young and inexperienced broadcaster.” Your Radio stressed that there was never any deliberate attempt to mislead its audience.
Your Radio said it had taken the matter very seriously. It said that all presenters who pre-record programmes had been made aware that there should be no attempt to encourage listeners” to contact a show that does not have a live presenter in the studio”. Further, all pre-recorded overnight shows had been suspended and would be presented by experienced presenters if reintroduced. The broadcaster advised that it had also changed its approach to training new presenters.
Presenters should avoid broadcasting any ‘call to action’ that states or implies the prospect of audience interaction with a programme, if such interaction is not possible. In this case, during a pre-recorded programme which was broadcast ‘as live’, the presenter mistakenly invited listeners to text in birthday messages for her to broadcast. While we accept that this was not intentional, this materially misled listeners into believing they could interact directly with that programme when they could not.
Ofcom notes the extensive action taken by Your Radio to avoid recurrence. However two Ofcom Findings have been published previously (on 25 February and 11 August 2008 ) concerning similar issues . The broadcaster therefore should have been aware of the problems associated with inviting listeners to interact with pre-recorded programmes and should have taken steps to ensure the inexperienced presenter was aware of the need to take special care with regard to this issue.
The broadcast materially misled listeners, in breach of Rule 2.2 of the Code.
Breach of Rule 2.2
Please see the Note to Broadcasters, below (page 17)
Saturday Night Warm-Up
Northern Media Group radio stations (Northern Ireland), 6 September 2008, 18:00
Saturday Night Warm-up was a dance music show. This edition of the programme was pre-recorded and broadcast ‘as live’ and networked across Northern Media Group’s six commercial radio stations in Northern Ireland : Five FM, Six FM, Seven FM, Q97.2, Q101 West and Q102.
During the programme, the presenter invited listeners to contact the show on a number of occasions. These invites included:
- “…your chance to be part of the show. All you’ve got to do is text us, let us know what songs you want to hear – what you’re up to on the biggest party night of the week. Pick up your cellphone, insert the number 7, write your message and send it to us at eight double-three double-nine” ;
- “…let us know what you’re up to tonight, if you want to be part of the show. It’s the biggest party night of the week – we’re with you all the way. This is your official Saturday Night Warm-up…” ;
- “Tonight from 8 o’clock we’re playing Planet Love anthems. Just text what song made it for you at this year’s Planet Love or any year over the last decade – Text…” ;
- “OK we’re going to go live in ‘The Mix’ in minutes – we’ve got the Pioneer C DJs ready – and we’re still taking your texts. What song has made it for you at Planet Love over the last ten years? It could be a new song but, er, judging by your response on the text, most of them are old school anthems. Let us know what song you want to hear inside the next five minutes on…” ; and
- “Thanks for all your texts tonight – a lot of texts requesting that one from Underworld ‘Born Slippy’.”
A listener complained that the presenter invited the audience to interact with the programme by using a text short code “which notoriously generates money for the company.” The complainant was concerned that, as the programme was pre-recorded, “listeners’ dedications and other contributions [had] no chance of being used or featured.”
We asked Northern Media Group (referred to in this finding as “NMG” or “the broadcaster”) for its comments with reference to Rule 2.2 of the Code, which requires that “… items or portrayals of factual matters must not materially mislead the audience.”
NMG confirmed that the programme was pre-recorded but said that there had been no intention to harm or mislead listeners. There was no commercial motivation for encouraging listeners to contact the station as it received no income from the text service promoted. However, NMG acknowledged that it was unacceptable to suggest to listeners that they could interact with a pre-recorded programme when this was not possible. It apologised for doing so.
NMG explained that the presenter included the invitations to “make the show more interesting”. Messages that were sent to the broadcaster during the pre-recorded programme were checked in the days that followed and the presenter was encouraged to use them in the next available programme.
The broadcaster said that the practice resulted from deficiencies in its policies and procedures. It advised that it had amended its procedures to ensure listeners are not encouraged to interact “as-live with pre-recorded programmes”. All presenters of pre-recorded programmes have been instructed not to encourage listener interaction in such broadcasts. NMG added that where presenters invite listeners to correspond with them, it will be clear to the listener that their contribution will not be used immediately.
In response to specific questions raised by Ofcom, NMG advised that some of the messages referred to during the programme in question were not genuine but made up by the presenter. The broadcaster also explained that The Saturday Night Warm Up was broadcast weekly from 9 August 2008 and the majority of shows broadcast were pre-recorded. The broadcaster explained that, prior to the issue being brought to its attention, it was likely that most shows would have encouraged listeners to interact. However, following notification of the complaint and copies of Ofcom’s Findings in this area, no pre-recorded editions of the programme had encouraged audience interaction.
NMG added that listeners who submitted texts in response to the on air invitations paid only their “standard network rate”. While the text shortcode used provided the station with an option to charge a premium for each SMS received, the charge would be applied only when a return message was sent to the sender of the original message. As the broadcaster did not reply to the inbound messages, the cost to listeners of sending a text to the number promoted would have been their standard network rate.
Ofcom notes NMG’s apology and the action it has taken to avoid recurrence.
However, Ofcom is extremely concerned that the broadcaster failed to have sufficient procedures in place to prevent the deception of its audience. In this case the presenter not only pre-recorded ‘calls to action’ that stated or implied the possibility of immediate audience interaction with the programme but also reported on fictitious messages, which the presenter claimed to have received during the programme. This was unacceptable and in breach of the Code.
Ofcom accepts that this was not pre-meditated in order to deliberately deceive the audience. However, Ofcom considers that it should have been clear to those involved in producing the programme that to deceive the audience in this way was unacceptable. Further, the breaches occurred after Ofcom published Findings against other broadcasters for similar Code breaches. NMG should therefore have been aware of Ofcom’s concerns in this area and taken steps to prevent this practice.
Ofcom noted that listeners’ texts were not charged at premium rate but at standard network rates. Nevertheless, by repeatedly telling listeners that they could interact with the programme when they could not, the audience was materially misled. As the programme progressed, the audience would have believed that some listeners had interacted with it. The presenter appeared to intend deliberately to deceive listeners, in a serious breach of listener trust. The broadcast materially misled listeners, in breach of Rule 2.2 of the Code.
This is a serious breach of the Code. Ofcom will consider further regulatory action in the event of any similar breach by any NMG station.
Breach of Rule 2.2
Note to Broadcasters: Calls to action in pre-recorded output broadcast ‘as live’
To date, Ofcom has published four Findings concerning material broadcast in pre-recorded radio programmes. In each case the broadcast stated or implied that listeners could interact with the programme when they could not [the two Findings above and two Findings against Dream 100 FM published previously, on 25 February and 11 August 2008].
Ofcom acknowledges that broadcasters may wish to make pre-recorded programming as ‘natural’ as possible. However, broadcasters must not materially mislead their audience by, for example, encouraging listeners to interact with a programme by telephone, when this is not possible. This is particularly important if significant charges are levied (e.g. for contact using phone/text services charged at premium rate (“PRS”)), when the potential to cause material harm is greater. However, broadcasters should note that, where lesser (non-premium rate) or no such charges are levied in pre-recorded programmes, an audience can still be materially misled by the inaccurate portrayal of factual matters. In particular, licensees should consider the risk of a fundamental breach of trust between a broadcaster and its audience.
Generally, immediate interaction in pre-recorded programmes is not possible. Requests for members of an audience to correspond with a view to interacting in subsequent output may, however, be possible (e.g. requests for dedications to be included in a subsequent pre-recorded radio programme). Broadcasters must consider carefully whether information they choose to include in pre-recorded programmes broadcast ‘as live’ (e.g. calls to action) has the potential to materially mislead their audiences.
Ofcom puts broadcasters on notice that we regard breaches of Rule 2.2 of the Code, due to overt deception or a lack of thorough consideration for compliance, as serious. Such breaches result in a fundamental breach of trust between the broadcaster and its audience and Ofcom will not hesitate to consider further regulatory action, when necessary.
Channel U, August 2008, various dates and times
Fizz, August 2008, various dates and times
Ofcom monitored the output of Channel U, an urban music channel, and Fizz, a pop music channel, on various dates and times in August 2008. At the time, both channels were owned by Video Interactive Television plc .
Ofcom noted that at the end of some of the videos on the channels, the following text appeared on the screen “Check www.channelu.tv for Video’s, MP3’s and Realtones!” or “Check www.fizzmusic.co.uk for Video’s, MP3’s and Realtones!”
We noted that the channels’ websites advertised realtones and mp3s for sale.
Ofcom asked the broadcaster for its comments in relation to Rule 10.3, which states that “products and services must not be promoted within programmes. This rule does not apply to programme-related material”.
The broadcaster responded that the on screen messages “Check www.channelu.tv for Video’s, MP3’s and Realtones!” and “Check www.fizzmusic.co.uk for Video’s, MP3’s and Realtones!” were no longer displayed on Channel U and Fizz. It added that the messages had “acted as a signpost to the website where artist information and news is available and as such, [were] programme related items”.
Rule 10.3 prevents products and services from being promoted in programmes, the only exception to this is where promotions relate to programme-related material (“PRM”). Broadcasters must bear in mind that the ability to promote a product or service as PRM in or around programmes is permitted purely by way of exception to the fundamental broadcasting principle that advertising and programme content must be kept separate. For material to qualify as PRM, it must not only be directly derived from a specific programme but also allow viewers to benefit fully from, or interact with, that programme.
In this case the broadcaster promoted not simply the websites but the availability of products and services (videos, mp3s and realtones) that could be purchased via the websites. These products and services did not meet the definition of PRM in that they were not directly derived from the programmes. As such, it was not appropriate for the broadcaster to promote their availability within a programme and the material was therefore in breach of Rule 10.3 of the Code.
Breach of Rule 10.3
The licences for these channels were transferred from Video Interactive Television plc to Factor 15 Records Limited on 23 January 2009.
‘Minx Girl’ Promotion
Chart Show TV, 20 October 2008 at 17:50
Chart Show TV is a pop music video channel operated by CSC Media Group (“CSC”). The channel broadcast a promotion, which was transmitted before the watershed, called ‘Minx Girl’. The promotion stated:
“ Are you confident, feisty and easy on the eye? If you are, Chart Show TV wants to hear from you. We are on the look out for a proper Minx Girl for some knicker–clad-naughtiness. We want you to tell us some of your naughtiest secrets and become a proper minx. Just send us a photo of yourself and tell us why you want to be a proper Minx” .
The promotional details were voiced over an excerpt of the music video ‘Dirrty’ by Christina Aguilera - which featured the singer dressed and dancing in a sexually provocative way - and footage of a model (from her waist up) in her underwear lying on a bed, moving in a suggestive manner.
A viewer complained about the inappropriate scheduling of the promotion.
Ofcom asked CSC to comment on the broadcast in relation to Rule 1.3 of the Code (children must be protected by appropriate scheduling from material that is unsuitable for them).
CSC acknowledged that the promotion was unsuitable for a pre-watershed broadcast and apologised for any offence caused. It explained that the error occurred after the promotion was mistakenly marked for ‘daytime’ rather than ‘post-watershed’ broadcast.
In response to the complaint, the channel’s producers have been reminded of their responsibilities under the Code and of the importance of correctly marking content for ‘daytime’ and ‘post-watershed’. The broadcaster stated that it has a rigorous policy for ensuring under-eighteens are protected and regretted this error.
In Ofcom’s opinion this promotion was clearly unsuitable to be broadcast in the early evening when it was likely that a number of children could be watching. There was a teasing script accompanied by visual material, which was mildly sexually provocative. Ofcom notes that the broadcast of this promotion pre-watershed resulted from human error. It also notes the broadcaster’s response to the complaint and its assurances of rigorous compliance for protecting under-eighteens.
However, the broadcast of this material before the 21:00 watershed is a clear breach of Rule 1.3.Breach of Rule 1.3
Hell’s Kitchen USA
ITV2, 12 November 2008, 20:00
Ofcom received a complaint that one of the contestants taking part in this series of Hell’s Kitchen USA said “fuck me” in an interview to camera. The broadcaster was asked to comment under Rule 1.14 of the Code which states that the most offensive language must not be broadcast before the watershed.
The broadcaster explained that this programme was subject to a well established and robust compliance process, particularly given that it originally included a considerable amount of strong language and this had to be removed for the programme to be shown ay 20:00. However, the intonation and accent of the speaker meant that the word was missed through human error although the broadcaster accepted that it was audible.
The broadcaster accepted that the word should not have been broadcast and apologised. In addition ITV has said that it will further review its internal procedures in the light of this incident.
The Code requires that licensees do not broadcast the most offensive language before the watershed. The use of the phrase “fuck me” in this episode of Hell’s Kitchen USA was a clear example of this language.
While noting the broadcaster’s apology and the fact that this one instance occurred as a result of human error, Ofcom expects all broadcasters to ensure that material broadcast before 21:00 does not include the most offensive language.
Ofcom has therefore recorded a breach of Rule 1.14.
Breach of Rule 1.14
Funniest Ever You’ve Been Framed
ITV1, 1 November 2008 at 18:00
Funniest Ever You’ve Been Framed featured a selection of humorous home video clips, including unseen material and clips shown in previous series of You've Been Framed.
This programme broadcast a clip in which a teenage boy microwaved an egg in its shell. The boy was filmed as he removed the heated egg (with its shell intact) from the microwave and held it up to the camera. Moments after this the egg exploded with a loud ‘bang’, spraying its content over the camera lens.
During the clip the voice over said:
(at the beginning of the clip): “Rule one of many, here’s why you should never, ever put whole eggs in the microwave…”
(at end of the clip): “For pity sake don’t try it yourself.”
A viewer felt that the broadcast of this clip was inappropriate and would encourage children to imitate dangerous behaviour.
Ofcom asked ITV to comment with reference to Rule 1.13 of the Code, which includes, “Dangerous behaviour, or the portrayal of dangerous behaviour, that is likely to be easily imitable by children in a manner that is harmful, must not be broadcast before the watershed, or when children are particularly likely to be listening, unless there is editorial justification .”
ITV stated that You've Been Framed is a “very long running and popular family entertainment show, familiar to most viewers”. It said that where clips show any potentially dangerous behaviour ITV always takes care to consider whether the behaviour is likely to be easily imitable by children in a manner that might be harmful.
The broadcaster considered the clip to show an unwise but not seriously dangerous prank. It stated that the clip in question was broadcast in at least three previous You’ve Been Framed series, without raising any viewer concerns.
ITV highlighted the warning given by the voice over at the beginning and end of the clip, which it said “ makes it clear that this is not an activity that should be imitated by viewers”. ITV stated that, in the context of the repeated warnings and the overall tone of the programme mocking this sort of prank, it considered that the behaviour was not likely to be imitated in a harmful way by children. It also considered that, given the nature of the programme, there was editorial justification for including the clip.
However, in response to the complaint ITV said it removed the clip from the programme (and from all the previous programmes in which it has featured) in order to prevent any further repeat broadcast. The broadcaster apologised for any distress caused to the complainant.
Ofcom notes You’ve Been Framed is an established programme that has a familiar style of ridiculous and irreverent humour.
However, the clip in question featured everyday household items: a microwave and an egg. Both items are regularly used and are of easy access. The clip itself clearly showed viewers how to make an egg explode. A potentially dangerous activity which, given its visual impact, may appeal to children. In light of these factors, Ofcom had concerns about the broadcast of this material at a time when a significant number of children were watching; audience data shows that 15.9% of the audience consisted of children under the age of 15 (a total of approximately 864,000 individual children).
Ofcom noted the warning’s provided at the beginning and end of the clip. However, given the clip presented laughter from the studio audience after the egg exploded and showed no negative consequences (e.g. any physical harm or pain to the individuals involved), Ofcom considered that this would have weakened the impact of these warnings. As a result, the clip could have been interpreted as both humorous and harmless, therefore encouraging children to imitate such behaviour.
While Ofcom had concerns about the broadcast of this material, it noted ITV’s apology and its assurance not to repeat the material. In light of this, Ofcom considers the matter resolved.
BBC 6 Music, 5 November 2008, 10:00
George Lamb presents a live week day show on the BBC digital radio station, 6 Music. The show, co-hosted by Marc Hughes, is described as “inane banter plus amazing bands and guests playing live nearly every morning!” by the official BBC 6 Music website.
During this programme, t he presenter discussed a news story concerning a bid by the American property tycoon, Donald Trump, to build a luxury golf course in Scotland and his battle with local fisherman, Michael Forbes, whose farm lies on the site initially approved for the complex. As part of the discussion the presenter said the following:
George Lamb: “He's [i.e. Mr Forbes] now said ‘I'll give my land to travellers before I give it to Trump’
Marc Hughes: Did he say that? Brilliant
George Lamb: And you ain't moving travellers off basically. Travellers is [sic] like asbestos basically. The whole gaff is getting condemned."
Ofcom received six complaints from listeners who believed George Lamb’s comment was racist towards the travelling community.
Ofcom asked the BBC 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).
The BBC stated that George Lamb’s show is an established feature of the 6 Music schedule and the show has a “loyal following of listeners who understand and enjoy its somewhat quirky format and direction”.
While the BBC accepted that the term “traveller” was used in a negative way during the broadcast, it said that the comment was “not intended to be, nor was it, racist”. However, the BBC said that while the presenter did not set out to be offensive, the station acknowledged that offence might have been caused to some listeners. In consequence the recording of the programme, available on the BBC iPlayer, was withdrawn on the day of broadcast and re-edited to remove the section in question. George Lamb also made an on-air apology the day after his comments were broadcast.
Ofcom notes the BBC’s acknowledgement of the potential offence the presenter’s comments could have caused to some viewers and the actions taken by the station shortly after the broadcast to mitigate it. In view of the presenter’s on-air apology and subsequent action taken by the BBC, Ofcom considers this matter resolved.
The Alex Zane Breakfast Show
XFM, 20 August 2008, 07:20
In this edition of the Alex Zane Breakfast Show, the programme discussed a song which it said was acceptable in the 1960’s but would now be “questionable at best”. The song was “Code of Love” by Mike Sarne and had been released in 1963. The presenter then played the following sample from “Code of Love”:
“Number 1 you find someone, 2 you hold her hand, 3 you kiss her on the cheek. Number 4 you squeeze her, number 5 you tease her, 6, 7, 8, 9, 10, too late to say when.”
The presenters then explained that they had been inspired to write and produce their own song, which like Sarne’s song would be considered to be inappropriate now but may have been acceptable in the 60’s. Before playing their song, one of the presenters said that it would only be played on the radio once but it would be available on the internet later where “the laws are different”.
The presenters’ song was then played which featured a man describing his amorous and, at times, physical advances, and a woman attempting to refuse them. Lyrics to the song included:
Man: “What’s a girl like you doing out at this time?
Such a crackin bird, like to make you all mine
and I ain’t taking ‘no’ for an answer tonight.
Woman: What are you doing let go of my arm!
Man: Just settle down and you’ll come to no harm
cause I ain’t taking ‘no’ for an answer tonight.
Man: I walked her down to where there ain’t no big lights.
Woman: I’m telling you I’ll put up a big fight!
Man : But I ain’t taking ‘no’ for an answer tonight.”
Man: “Do any of your friends know where you are?
Woman: Ere you’ve only gone and torn my new bra.
Man: That’s cause I ain’t taking ‘no’ for an answer tonight.
Man: Why don’t you take off some of your clothes?
Woman: I swear I am going to punch you in the nose!
Man: Don’t care I’m not taking ‘no’ for an answer tonight.”
Man: “Well she’s the type of girl who knocks you right off your feet. That’s what I tried to do to her, only she don’t seem that interested. Looks like I’m going to have to try harder.”
Woman: “What are you doing, now why won’t you leave me?
Man: Have a look at this - it’s great believe me.
Woman: I told you ‘no’ and that’s my answer tonight.
Man: If this was fish and chips it’d be a double portion.
Woman: You’re going to get another police caution!
Man: Look I ain’t taking ‘no’ for an answer tonight.”
Woman: (Police sirens in background.) Here come the cop cars, sirens wailing.
Man: My pickup technique must be failing,
I’ll grudgingly accept ‘no’ as an answer tonight.”
A listener complained that the song had contained connotations of rape.
Ofcom requested XFM’s comments in relation to Rule 2.3 of the Code which says, “In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context.”
XFM explained that the previous day’s programme had featured a song from the 1960s by the song writer Mike Sarne called “The Code of Love”, which had been discussed as now being politically incorrect. The breakfast team then decided to record their own politically incorrect song called “Won’t Take ‘No’ For An Answer”.
Notwithstanding this, the broadcaster stated that the programme makers had not sought advice in advance from XFM’s management about the inclusion of the song. It considered the song to have been “inappropriate for broadcast” and that its inclusion had been a “serious misjudgement”. As a result, XFM stated that its management had taken steps to remedy the situation, including disciplinary action and compliance training for the staff involved. XFM also broadcast an on-air apology the following day.
XFM also said the station is known for its cutting edge content, and is not aimed at a conservative audience. As such regular listeners would expect content which is at times satirical and irreverent. It added that the proportion of listeners aged under-18 to The Alex Zane Breakfast Show is 3.5%.
Ofcom recognises the sensitivities involved when comedy makes reference to or deals with challenging subjects. Comedy and satire in particular has a long tradition of pushing boundaries and challenging what is acceptable. Taste in comedy can also vary widely between 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 the audience was 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 unless prescribed by law .
The Code itself 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. Context includes such factors as the editorial content of the programme, the degree of harm and offence likely to be caused, the likely expectation of the audience and the time of broadcast.
It is clear from the introduction to the song that the programme was aiming to make a pastiche of Sarne’s original song. The presenters were attempting to satirise what used to be acceptable in the 1960’s but would now be considered totally inappropriate by today’s standards. If was therefore always possible that the result could be offensive and therefore the context that such material was presented would be particularly important. .
However, the extract from Sarne’s song played by the presenters bore little relation to the pastiche they attempted. The subject matter and tone of “Code of Love” were vastly different to the presenters’ own song (which was supposedly inspired by the former). In Ofcom’s view, the presenters’ song was likely to have been perceived by listeners as recounting a physical and sexual assault. As such, the actions of the man in this song shared little resemblance to those of the suitor in the “Code of Love” extract played by the broadcaster. Ofcom also noted that the subject matter of the presenters’ song was portrayed as a light-hearted joke and the material was transmitted at breakfast-time, when children may be in the audience.
Ofcom considers that it is, of course, possible to deal with challenging and sensitive subject matter in a satirical manner. To restrict such treatments would be an unnecessary and inappropriate restriction on freedom of expression. However, broadcasters need to take extra care when attempting such treatments and ensure that the context fully justifies the potential for offence and it is appropriately executed.
Ofcom notes XFM’s actions following the broadcast. The Licensee initiated its own investigation into how the material had been broadcast without consultation with senior management. The broadcaster also aired its own on-air apology. Ofcom also noted that XFM introduced compliance workshops for those involved.
In dealing with satire, there is often a fine line between what is and what is not acceptable. It was clear there was an attempt in this case to parody what was considered to be acceptable in the 1960’s. Although not necessarily appropriately executed, Ofcom acknowledges the actions taken by the broadcaster following transmission of the material and therefore considers the matter resolved.
As enshrined in Article 10 of the European Convention on Human Rights.
Viking FM, 21 October 2008, 17:20
Viking FM is a commercial radio station, which broadcasts chart music shows and local information to the East Yorkshire and Northern Lincolnshire area. It is operated by Bauer Media (“Bauer”).
Ofcom received a complaint about the broadcast of a promotion for the radio station’s late night programme called The Confessional. The programme invites listeners to share their stories and experiences in frank and honest discussion with the show’s presenters.
The trailer said the following:
Voice over: “Tonight on ‘The Confessional’… We’re looking for your stories all about dogging .
Vox pop: There was people having sex… there were a lot of guys really and then another couple came over and kinda joined with them so it ended up being like a big groupie.
Voice over: We’ll be with you from ten. ‘The Confessional’, a show of secrets on Viking FM.”
A listener complained that the trailer had been scheduled inappropriately.
Ofcom asked Bauer to comment with reference to the following Rules of the Code:
- Rule 1.3 – “Children must be protected by appropriate scheduling from material that is unsuitable for them”;
- Rule 1.16 – “Offensive language must not be broadcast before the watershed, or when children are particularly likely to be listening, unless it is justified by the context”; and
- Rule 2.3 – “In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context”.
Bauer acknowledged that the trailer did not comply with Rules 1.3 or 2.3 of the Code. It apologised to the complainant and stated that it sincerely regretted that the trailer was transmitted at a time when the audience was likely to include children. Bauer explained the error by stating that the trailer was flagged with timing restrictions. However, due to an oversight, the restrictions were overlooked and the trailer was aired at 17.20. It further stated that the error was spotted immediately and the trailer removed from the playout system to prevent any further recurrence.
As a result of this error Bauer said it carried out a full review of its playout procedures to ensure that any material which is not appropriate for broadcast at particular times cannot be incorrectly scheduled. In addition, as part of its review, Bauer stated that it will no longer pre-record and schedule trailers for The Confessional programme, as the content of the programme may include material that is not suitable for younger listeners.
Ofcom notes Bauer’s acknowledgement that the scheduling of the trailer did not comply with the Code. Ofcom welcomes the broadcaster’s apology to the complainant and the swift compliance measures taken in response to this scheduling error. In view of these actions, Ofcom considers this matter resolved.
The term “dogging” refers to the act of having sex with one or more partners in a public place and/or watching others do so.
Music Express Nepali TV, 1 October 2008, 17:15Introduction
Nepali TV is a general entertainment channel aimed at a UK Bangladeshi audience. Ofcom received one complaint that the opening titles of the programme, Music Express, broadcast on 1 October 2008, contained computer-generated visual effects. Some of these effects consisted of rapidly changing images, leading to a ‘flashing’ effect on the screen.
Certain flashing images present a danger of triggering seizures in viewers who are susceptible to photosensitive epilepsy (“PSE”). Rule 2.13 of the Code therefore requires broadcasters to take precautions to maintain a low risk to viewers who have PSE. Ofcom asked Nepali TV how this opening sequence complied with this Rule.
Nepali TV stated that once it had received the correspondence from Ofcom, it immediately reviewed the opening credits and removed the flashing effects. The opening sequence was then replaced with a still image.
A technical assessment by Ofcom concluded that the opening titles of the programme contained five distinct sequences where the rate, intensity and screen area occupied by the flashing images exceeded the maximum limits set out in Ofcom’s Guidance Note on Flashing Images.
In view of the swift response by Nepali TV, however, Ofcom is treating this matter as resolved.Resolved
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