Broadcast Bulletin Issue number 135 - 08/06/09

Lakeland Radio Limited, The Noon Show, Herre på täppan, News bulletins & RFL Janatar Raay, Ben 10: Alien Force, UK Tings, Jon Gaunt, Moving Wallpaper, Complaint by Mr Ulf Olsson, Complaint by Humphries Kirk Solicitors on behalf of Ultimate Energy plc

Standards cases

Notice of Sanction

Lakeland Radio Limited
Suss the Celeb, 2 January 2008 to 1 May 2008

On 29 May 2009, Ofcom published its decision to impose a statutory sanction on Lakeland Radio Limited for breaches of Rule 2.11 (competitions should be conducted fairly).

Ofcom has found that this rule was breached in the conduct of a series of three listener competitions called Suss the Celeb, as follows:

• in approximately 85 daily rounds of the competition, the presenter deliberately selected listeners who he knew had submitted the wrong answers, which he then broadcast. This prevented the prize from being won too soon. As a result, those listeners who had paid to enter the competition on these occasions had no chance of winning.
• the licensee had failed to put in place sufficient compliance procedures and checks, and there had been a lack of appropriate compliance training for its staff.

For the reasons set out in the adjudication, Ofcom imposed a financial penalty of £15,000 on Lakeland Radio Limited.

In addition, the licensee was directed to broadcast a statement of Ofcom’s findings in a form to be determined by Ofcom on one specified occasion.

The full adjudication is available at: http://www.ofcom.org.uk/tv/obb/ocsc_adjud/lakeland.pdf

---

In Breach

The Noon Show
Ujima Radio, 31 March 2009, 13:00

Introduction

Ujima Radio is a community radio station in Bristol. The station is part of the CEED Charity Ltd (Centre for Employment and Enterprise Development) and aims to reach BME communities in Bristol. It is owned and run by local people, and many of the station staff work in a voluntary capacity.

The Noon Show is broadcast every weekday from 13:00 to 16:00 and includes new music, talk and interviews. During a broadcast of the show, the presenter read out a story that featured in a newspaper entitled “The secret life of a male prostitute”. He then commented on the story and spoke about issues relating to black homosexuals. As part of this discussion the presenter made a number of comments directly about the black man who featured in the story, called “ Elijah”, and homosexuality in general.

With regard to “ Elijah”, and what appeared to be homosexuality in general, the presenter said:

“21 years old, he’s out the game ‘cos his backside’s hanging out. Probably got a catheter….We’re taking a moment to readjust here, readjust ourself, ask God Almighty to set us straight and keep us free from the pestilence that certainly has fallen on us and certainly is a pestilence.”

With regard to homosexuality the presenter said:

“ I don’t like to believe we are the most homophobic, I like to look at it as we are the most right thinking. It’s as simple as that. Because if you didn’t think right, you wouldn’t be here in the first place … as there wouldn’t be such [a] thing as procreation, and procreation has to continue between man and woman… don’t get it twisted and don’t get sick out there, real talk now…it takes a man and hormone. Adam and Eve, simple, simple, simple. Argue your case with God Almighty.”

“ You know your son is up in his bedroom playing his Xbox and you think ‘oh he’s 16, 17 years old’ and that lot, you’d like to see a few girls going up there but you don’t wanna walk up there and find that they’re not playing Xbox - the only box they’re playing is a nasty dirty little box, you know. I’m just merely saying, every time your son comes through the door with different boys, well it might be boys or just play mates I’m afraid.”

“Goodness knows what I would do if my sons turned round and told me they [are gay] , I know what I would do but I won’t tell you on-air.”
 
Ofcom received a complaint from a listener who felt that the presenter’s comments during this discussion were offensive towards the gay community.

Ofcom wrote to Ujima Radio for its comments under Rule 2.3 of the Code (material that may cause offence must be justified by the context).

Response

The broadcaster acknowledged that the programme was unsuitable for broadcast and that listeners would have been offended by the comments made by the presenter.

Ujima Radio said that as a consequence of the complaint the station terminated the presenter’s volunteer contract and broadcast an on-air apology the following week. In addition, the broadcaster said that it had reminded all of its presenters of the policies and procedures it has in place in order to comply with the Code. It has also provided guidance. The broadcaster said that it has also carried out training on the Code and compulsory online legal training for all presenters.

Decision

Ofcom notes the broadcaster’s acknowledgement that listeners would have been offended by the comments made by the presenter and the broadcast of an on-air apology. Ofcom also notes the compliance measures taken in response to this incident.

Ofcom was concerned by this material and in particular the language used and the homophobic tone and manner in which the comments were made. In Ofcom’s opinion, such comments would reasonably have been perceived as hostile and pejorative towards the gay community and had the potential to cause considerable offence.

In general, offensive material can be broadcast, so long as it is justified by the context. Given factors such as the service on which the material is broadcast; the degree of harm or offence likely to be caused by the inclusion of the material; and the likely expectation of the audience, Ofcom considered that the broadcast of this offensive material was not justified by the context. Therefore, the material went beyond generally accepted standards for this type of programme and breached Rule 2.3 of the Code.

Breach of Rule 2.3

---

In Breach

Herre p tppan
TV6 (Sweden), 1 March 2009 at 20:00

Introduction

TV6 is a Swedish language channel licensed by Ofcom that is controlled and complied by Viasat Broadcasting UK Limited (“Viasat”). Viasat holds 25 Ofcom licences for separate television channels which broadcast from the United Kingdom to various Scandinavian and Eastern European countries, including Sweden. The Viasat compliance department is based in London and manages compliance for all these licensees centrally. TV6 is not on domestic Electronic Programme Guide and cannot be received in this country on normal satellite or cable equipment.

Herre på täppan (“King of the Hill”) is a game show that sets bizarre challenges for contestants, with the ultimate prize of becoming “King of the Hill”. The challenges range from games, such as answering general knowledge questions, to eating something unknown, or undertaking some potentially dangerous or painful activity. The winner of each challenge wins 2000 Swedish krona and the loser 500 Swedish krona.

Ofcom received a complaint from a Swedish viewer about the broadcast of a challenge called The Human Letter. This involved two young men attaching six pieces of paper, printed to resemble oversized stamps, directly to their bodies using a staple gun as quickly as possible. The programme showed the men stapling the ‘stamps’ to their face, and to their bare legs and torso. The viewer felt that the challenge was unsuitable for broadcast because it encouraged dangerous behaviour.

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; and
• Rule 1.13 - Dangerous behaviour that is likely to be easily imitable by children in a manner that is harmful must not be broadcast before the watershed, or when children are particularly likely to be listening, unless there is editorial justification.

Response

With regard to Rule 1.3, Viasat stated that TV6 is a channel aimed at men between the ages of 15 to 49 and the programme was broadcast at 20:00, which it said is outside the peak viewing time for children in Sweden. It continued that the programme Herre på täppan is marketed as a general entertainment programme and viewers of this series know the programme contains different challenges, many of which are bizarre, but all are undertaken in a humorous and light-hearted fashion. It therefore believes the programme content complied with Rule 1.3 of the Code.

With regard to Rule 1.13, Viasat said that this series is not made for children, and the programme was broadcast outside of peak viewing time for children, especially on channel TV6. It stated that the behaviour during the challenge did not constitute dangerous behaviour nor was it easily imitable by children in a manner that is harmful. It continued that the act caused hardly any injury to the contestants, which it said was clear from the programme. The broadcaster pointed out that the contestants were stapling paper to their own bodies, not to other people’s bodies. It also stated that the programme made clear that the challenge was an unsuitable thing to do, as the presenter said: “that must really hurt” [English translation].Viasat therefore considered that it was editorially justified to broadcast this particular challenge.

However, in response to the complaint the broadcaster stated that it has now scheduled this programme to after the watershed, beginning at 21:00.

Decision

Ofcom recognises that Swedish audiences may have different expectations regarding the broadcast of what could be considered dangerous behaviour before the watershed. We also note that Swedish audiences may consider 20:00 to be outside the peak viewing time for children. While taking these factors into account, Ofcom has also has to recognise that 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 1.13 of the Code states that dangerous behaviour that is likely to be easily imitable by children in a manner that is harmful must not be broadcast before the (21:00) watershed, or when children are particularly likely to be listening, unless there is editorial justification.

Ofcom acknowledges that TV6 is aimed at men between the ages of 15 to 49 and the programme is not primarily aimed at children. We also note that the broadcaster did not consider the challenge to constitute dangerous behaviour. However, child audience figures provided by the independent Swedish regulator, GRN ^(-1-), indicate that approximately 28,000 children between the ages of 4 and 15 watched this programme, which was 12 per cent of the total audience. Therefore, the programme was scheduled and broadcast at a time when children were likely to, and in fact were, viewing.

In Ofcom’s opinion, attaching pieces of paper directly to the body using a staple gun, including to the face, could reasonably be considered dangerous behaviour. Further it is an activity which is likely to be easily imitable by children. Staple guns are accessible objects, widely available in schools for example. We therefore considered that the behaviour featured could be easily imitated by children in a way which may be harmful. In Ofcom’s opinion, the programme also presented this behaviour as both humorous and acceptable and it did not sufficiently warn younger viewers of the potentially harmful results. This is despite the fact that in the programme the staples pierced the men’s skin and drew some blood: one even suggested that one staple pierced his rib. Ofcom considered there was insufficient editorial justification for featuring the material in this manner at this time of the evening. The programme was therefore in breach of Rule 1.13.

Given the breach of Rule 1.13, relating to material shown before the watershed, Ofcom also considered the programme in breach of Rule 1.3 which requires that “children must also be protected by appropriate scheduling from material that is unsuitable for them”.

Before the current breaches, Ofcom had previously raised with Viasat concerns regarding its overall compliance record for the television services it operates, especially as regards protection of the under-eighteens on TV6 ^(-2-). Ofcom therefore recently met with Viasat to discuss those concerns and Viasat’s compliance record and processes generally. In light of those compliance concerns and record, Ofcom considered in this case whether further regulatory action might be appropriate. Ofcom however decided that, on balance, it was not, taking account of all the circumstances and in particular the broadcaster’s voluntary decision from now on to schedule Herre på täppan to start after the watershed. Ofcom remains, however, concerned with the recent compliance record of Viasat, and of channel TV6 in particular.

Breach of Rules 1.3 and 1.13

Footnotes:

  1.- GRN were provided the audience figures by Mediamätning i Skandinavien (MMS).

  2.- See the following recorded breaches of the Code, in particular: Ofcom Bulletin 117: World’s Most Amazing Videos, TV6 Sweden, 28 June 2008, 20:00; breach of Rules 1.3, 1.10, 1.11 and 1.13;
Ofcom Bulletin 127: Penn & Teller: Bullshit! TV6 Sweden, 27 September 2008, 19:55; breach of Rules 1.3, 1.14, 1.16, 1.17 and 2.3; and
Ofcom Bulletin 127: Axe Gamekillers, TV6 Sweden, 12 October 2008, 13:30; breach of Rules 9.5, 9.7 and 9.13

---

In Breach

News bulletins
ATN Bangla, 18 November 2008, 08:00 and 29 December 2008, 12:00

RFL Janatar Raay
ATN Bangla, 30 December 2008, 09:30

Introduction

ATN Bangla is a general entertainment channel aimed at a Bengali-speaking UK audience.

News bulletins, 18 November 2008 and 29 December 2008

Two viewers were concerned that ATN Bangla’s news bulletins were sponsored.

Ofcom noted that during both of the news bulletins, the name of a bank (National Bank Limited) and its logo appeared to the left of the scrolling news bar at the bottom of the screen.

Ofcom also noted that during the news bulletin broadcast on 29 December 2008, a logo for a company called RFL Plastics Limited (“RFL”) appeared on the backdrop behind the newsreader and at another point during the same bulletin, a logo for a company called United Commercial Bank Limited (“UCB”) also appeared on-screen for twenty seconds. However, it did appear that efforts had been made to conceal some other pop-up logos.

Ofcom asked the broadcaster for its comments with regards to the following Code Rules:

• Rule 9.1 – News and current affairs programmes may not be sponsored.
• Rule 10.4 – No undue prominence may be given in any programme to a product or service.
• Rule 10.5 – Product placement is prohibited.

RFL Janatar Raay , 30 December 2008

Ofcom noted that during this current affairs programme whichcovered a national election in Bangladesh, a logo for a company called RFL Plastics Limited (“RFL”) appeared in a number of places. The logo of a company called Berger Trusted Worldwide also appeared on the screen for a few seconds at one point during the programme. On several occasions throughout the programme, parts of the screen were obscured, which appeared to suggest that the broadcaster had made efforts to conceal some pop-up logos.

• Rule 9.1 – News and current affairs programmes may not be sponsored.
• Rule 10.4 – No undue prominence may be given in any programme to a product or service.
• Rule 10.5 – Product placement is prohibited.

Response

News bulletins, 18 November 2008 and 29 December 2008

Rule 9.1
Channel S Plus Limited (“Channel S”), the licensee of the channel, ATN Bangla, acknowledged that the name of the bank, National Bank Limited, appeared to the left of the scroll bar at the bottom of the screen. It explained that the sponsorship arrangement had occurred before it acquired the programme from Bangladesh, and that National Bank Limited does not have any UK branches. Channel S therefore considered that, because it had not entered into any contract with the sponsor and UK viewers could not use the services of the sponsor, the news bulletin was not sponsored content and therefore was compliant with Rule 9.1 of the Code. However, the broadcaster informed Ofcom that it had taken immediate action to obscure the entire scroll bar.

Rule 10.4
The broadcaster submitted that due to a national state of emergency in Bangladesh at the time of the broadcasts, during which the army put all broadcasting companies under surveillance, its content supplier had to work under difficult conditions which led to errors of judgement.

Channel S said that RFL is a manufacturing company in Bangladesh which had designed and made the set for the programme, and that the RFL logo was an “emblem of the set maker”. The broadcaster said that as the appearance of the logo was not intended to promote any product or service, and its viewers were “very unlikely to consider it as a product or a service as there was no statement of any product or service promotion”, it did not consider it to be unduly prominent.

With regards to the appearance of the UCB logo in the news bulletin, Channel S said that this was included in error due to the difficult operating conditions described above. However, it argued that “the nature of the pop-up was clear enough for the viewers to construe that it was separate from the programme” and wished to point out that it does not generate any revenue from the appearance of pop-up logos as the programming is acquired content and it is the original broadcaster in Bangladesh who generates revenue from them. It argued that this accidental appearance during programming was “very unlikely to be considered as giving prominence [to a product or service]”. It assured Ofcom that it has reviewed its system to ensure that such an error does not occur again.

Rule 10.5
The broadcaster assured Ofcom that it adheres to the prohibition on product placement.

RFL Janatar Raay , 30 December 2008

Rule 9.1
Although the company called RFL was referenced in the title of this current affairs programme and references to RFL appeared throughout the programme, the broadcaster assured Ofcom that the programme was not sponsored by RFL.

Rule 10.4
Channel S told Ofcom that, as in the case of the news broadcasts detailed above, due to a national state of emergency in Bangladesh at the time of the broadcast, during which the army put all broadcasting companies under surveillance, its content supplier had to work under difficult conditions which led to errors of judgement.

As the broadcaster had previously explained in relation to the news broadcasts (see above), RFL is a manufacturing company in Bangladesh, which had designed and made the set for the programme. The broadcaster said that the logo was not considered as an unduly prominent reference to a product or service, and therefore the “producer did not treat [the] RFL logo as any kind of advertisement or promotion”. It added that its appearance was “not intended to promote any product or service; the logo appeared as a mere emblem of the set manufacturer and designer” and that it “[did] not make any reference to any product or service provision”.

With regards to the appearance of the Berger Trusted Worldwide logo during the programme, the broadcaster said that this pop-up logo only appeared very briefly and was therefore not detected by the editor. The broadcaster also submitted that the products of Berger Trusted Worldwide are not available in the UK.

The broadcaster assured Ofcom that it adheres to the prohibition on product placement.

Decision

Ofcom noted the broadcaster’s assurances in both cases that it adheres to the prohibition on product placement and found no evidence that the broadcasts were in breach of Rule 10.5 of the Code.

As a condition of holding an Ofcom licence, broadcasters must take responsibility for ensuring that the material they broadcast complies with Ofcom codes. It is a matter of concern to Ofcom that at the time of all of the above broadcasts, the licensee appeared to have relied on a third party (i.e. its content supplier in Bangladesh), which it knew to be operating under difficult conditions, to ensure that the material broadcast on the channel was compliant with Ofcom’s codes.

News bulletins, 18 November 2008 and 29 December 2008

Rule 9.1
The sponsorship of news (and current affairs) programmes is prohibited. This requirement comes directly from European legislation – the Television Without Frontiers Directive. This is to ensure news is not distorted for commercial purposes. In news, the broadcaster must maintain, and must be seen to maintain, editorial control over its output.

In this case, Channel S transmitted sponsored news broadcasts from Bangladesh without ensuring that they complied with the Code, in breach of Rule 9.1.

Rule 10.4
The Code states that undue prominence may result from “the presence of or reference to, a product or service (including company names, brand names, logos) in a programme where there is no editorial justification”. Ofcom was therefore concerned that the broadcaster did not consider the presence of the RFL logo to be an unduly prominent reference to a product or service because “there was no statement of any product or service promotion”. In this case there was clearly no editorial justification for the presence of the RFL logo in the programme.

With regard to the presence of the UCB pop-up logo, which appeared during the programme for a period of twenty seconds, Ofcom considered that while viewers were unlikely to interpret the appearance of the pop-up logo as part of the programme, there was clearly no editorial justification for its appearance, since it had no relation to anything in the content of the programme. The presence of the RFL and UCB logos in the programme were therefore in breach of Rule 10.4 of the Code.

RFL Janatar Raay , 30 December 2008

As in the case of the news bulletins, Ofcom was concerned that despite the Code clearly stating that undue prominence may result from the presence of logos where there is no editorial justification, the broadcaster did not consider the appearance of the RFL or Berger Trusted Worldwide logos to be unduly prominent. The RFL logo appeared in several places such as on: the front of the desk; a mug on the desk; a screen behind the presenter and to the left of a scroll bar at the bottom of the screen, giving rise to undue prominence.

There was also no editorial justification for the presence of the RFL or the Berger Trusted Worldwide logos in the programme. Ofcom therefore found the programme in breach of Rule 10.4 of the Code.

News bulletins, 18 Nov 2008 and 29 Dec 2008: Breach of Rules 9.1 and 10.4

RFL Janatar Raay, 30 December 2008: Breach of Rule 10.4

---

In Breach

Ben 10: Alien Force
Cartoon Network, various dates, March 2009

Introduction

During monitoring, Ofcom noticed that the series Ben 10: Alien Force was sponsored by Ben 10: Alien Force the Game. The credits featured footage from the video game, which included one of the main characters from the series.

Rule 9.3 of the Code requires sponsorship to comply with advertising content and scheduling rules.

The rules that apply to the scheduling of television advertising ^(-1-) require that:

• advertisements for merchandise based on children’s programmes must not be broadcast in the two hours before or after the relevant programme; and
• a person (including cartoon and puppet characters), whose appearance is central to a programme, must not appear in advertisements scheduled in breaks in or adjacent to the relevant programme.

The purpose of these rules is to assist in maintaining a clear distinction between advertising and editorial material. The rules are also in place to reduce the risk of children being more vulnerable to the impact of advertising of merchandise based on programmes they are or have been watching.

We sought the broadcaster’s comments on the sponsorship arrangement under Rule 9.3 of the Code.

Response

Turner Entertainment Networks International Limited (“Turner”), the licence holder for Cartoon Network, said that it had always been its interpretation that the advertising “separation” rules were not applicable to sponsor credits. This is because the Code requires sponsorship to be distinct from advertising.

Turner believed that the scheduling rules referred to in Rule 9.3 were those that protected viewers from products and services that they should not be exposed to at all (e.g. those products that could never be scheduled around children’s programmes e.g. alcohol).

Turner noted that sponsorship credits are editorial material, designed to inform viewers of the relationship between the sponsor and programme. Because credits must not contain the promotional qualities of an advertisement, Turner said that it had always been its understanding that Rule 9.3 would not impose a prohibition on products such as toys sponsoring children’s programmes.

Turner believed that its interpretation of Rule 9.3 had been common practice in the broadcasting industry for a number of years and asserted that the ITC, the regulator that preceded Ofcom, had indicated that the practice was acceptable.

Decision

Rule 9.3 applies the same content and scheduling restrictions to sponsor credits as those which apply to advertising. While sponsor credits must not contain the types of selling messages that are included in advertising, references to the sponsor or its products are permitted. Such references clearly provide the sponsor with promotional benefits.
 
Rule 9.3 therefore ensures that sponsor credits do not contain material that is harmful and/or offensive and prevents advertisers from using sponsorship as a means of circumventing advertising regulations. The advertising rules that prohibit the broadcast of advertisements for programme based merchandise, and those that feature programme characters, around the related programme recognise that children are more likely to be vulnerable to the impact of such advertising and susceptible to confusion between what is programming and what is advertising.

Ofcom does not exempt sponsorship from these rules, and, to our knowledge, neither did the ITC. The licensee did not provide us with any evidence that supported its assertion that sponsorship credits did not have to comply with the scheduling advertising rules. The sponsorship of a children’s programme by merchandise based on that programme, or sponsor credits that features characters from the sponsored programme is incompatible with Rule 9.3.

The sponsorship arrangement and the sponsor credits were therefore in breach of Rule 9.3.

Breach of Rule 9.3

  1.- See Sections 4.2.2 and 4.2.7 of the BCAP Rules on the Scheduling of Television Advertisements

---

In Breach

UK Tings
Channel AKA, 18 April 2009, 06:30, 07:15 and 08:40

Introduction

Channel AKA is an urban music channel owned by Mushroom TV Ltd. Ofcom received three complaints from listeners regarding the broadcast of various music videos during the programme UK Tings. The complainants said the programme included videos which contained material of a sexual nature, including sexual language, animations of sex scenes and partial nudity. The complainants considered the videos to be inappropriate for broadcast on a Saturday morning.

Response

The broadcaster said it was unable to provide Ofcom with a recording of the material because its playout equipment was disabled. It did state, however, that it was likely that such material was broadcast at the times noted by the complainants. Channel AKA explained that the videos were scheduled in error after a temporary late night shut-down in transmission took place while new equipment was being installed. The broadcaster apologised for any offence caused.

Decision

In the absence of a recording we were unable to consider the complaints made in this case. It is a condition of Channel AKA’s licence that recordings of output are retained for 60 days after transmission, and that they must provide Ofcom with any such material upon request. Failure to supply this recording is a serious and significant breach of the broadcaster’s licence. This will be held on record.

Breach of Licence Condition 11

---

Supplementary Note to Ofcoms Finding

Jon Gaunt
Talksport, 7 November 2008, 11:25

On 11 May 2009, in Ofcom Broadcast Bulletin 133, Ofcom published its finding in relation to the above broadcast. Following the publication of this finding, the presenter of the programme, Jon Gaunt, made representations to Ofcom which disputed some of the surrounding circumstances of the broadcast, and specifically certain steps which Talksport had said it had taken, as set out in the section headed “Response”. Ofcom put the substance of Mr. Gaunt’s representations to Talksport. Talksport in turn disputed Mr Gaunt’s account of events. Ofcom therefore notes that there are areas of dispute between Talksport and Jon Gaunt as regards the surrounding circumstances of the 7 November 2008 broadcast.

However, Ofcom’s finding that the broadcast breached Rules 2.1 and 2.3 of the Broadcasting Code was based on the content of the material as broadcast. Accordingly, Ofcom considers that the areas of factual dispute between Talksport and Mr. Gaunt do not materially affect Ofcom’s published decision in this case. Nevertheless, Ofcom has considered it appropriate to amend its original finding as published, to the extent of reflecting matters in dispute as between Talksport and Mr Gaunt. The amended finding is available at: http://www.ofcom.org.uk/tv/obb/prog_cb/obb133/issue133.pdf

---

Not in Breach

Moving Wallpaper
ITV1, 20 March 2009, 21:00

Introduction

Moving Wallpaper is a satirical comedy drama set in a television production office run by an egotistical and maverick producer called Jonathan Pope. This second series featured Jonathan working under great pressure to deliver a hit programme after the failure of his previous production Echo Beach, which was featured in the first series.

Ofcom received 100 complaints about an episode which featured a transsexual character called Georgina, whom Jonathan brought in for her track record in writing successful TV drama. The hiring of Georgina resulted in anger from the in-house writing team who felt sidelined by her appointment and consequently went on strike. During the episode Georgina experienced bigoted treatment from other characters, including Jonathan and some of his production team.

The complainants expressed concern that this storyline was offensive and encouraged transphobic bullying and discrimination against transsexuals in the workplace.

Decision

Satirical programmes, such as Moving Wallpaper, often derive humour from exaggerating a situation or attitude to the point of absurdity and Ofcom acknowledges that this may cause offence to individuals. Potentially offensive material may, however, be broadcast provided it complies with the Code. In regulating the content of broadcast television programmes Ofcom requires broadcasters to ensure that they apply “generally accepted standards” to ensure viewers have adequate protection from offensive material.

When applying generally accepted standards, Rule 2.3 states that broadcasters must ensure that material which may cause offence is justified by the context. Context includes, but is not limited to: the editorial content of the programme; the service on which the material is broadcast; the degree of offence likely to be caused; and the likely expectation of the audience.

In applying the Code, Ofcom must also carry out its duties in light of Article 10 of the European Convention of Human Rights which provides for the right to freedom of expression. Comedy and satire often, and rightly, engage with challenging and sensitive subjects touching on sexuality and gender. 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 context.
 
Ofcom recognises the concerns generated by the treatment of the transgender character Georgina in this episode of the comedy drama. In Ofcom’s view, references such as “a cock in a frock”, “trannies”, “he/she”, “not natural” and the overall discriminatory attitude demonstrated by Jonathan and some of his production team towards Georgina certainly had the potential to cause offence. This offence was clearly reflected in the strength of the many complaints received by Ofcom, some of which were from the transgender community.

However, it is important to note that the Code does not simply prohibit the broadcast of potentially offensive material. Rather, Rule 2.3 means that such material may be broadcast, if its inclusion is justified by context so as to provide adequate protection for members of the public.

In terms of assessing the context Ofcom firstly reviewed the editorial content of this popular comedy drama. First, it should be noted that this programme was a drama, with fictional characters and set in a fictional television environment. This was the second series of Moving Wallpaper and the chauvinistic and narcissistic character of Jonathan Pope was already well established from series one. In the opening scenes of this particular episode, before Jonathan meets Georgina, he talks about “George” as the new writer coming in who has a strong track record in writing hit television drama scripts. He demonstrates he has no qualms in undermining his existing scriptwriters by bringing in someone over their heads to avoid another television flop.

In Ofcom’s view it was therefore part of the characterisation of Jonathan to react negatively to Georgina from the point at which he meets her and realises she is a transsexual – even though it is the same writer Jonathan had previously praised for her extensive experience. Members of the production team also made negative references to Georgina’s gender ⁽¹⁾. Their motives however were less obvious: one stated he was “just jealous” of her long list of writing credits, and another stated that her attitude was not related to Georgina’s gender but the way in which Jonathan had brought her in without consulting the team.

In contrast, throughout the programme, Georgina is not presented in a negative or stereotypical way. She has strong morals and is very professional, refusing for example to bow to the pressure Jonathan puts her under to turn around a script quickly and to re-use storylines simply to salvage his own reputation.

It is Ofcom’s view that the intention of the humour in this episode was to illustrate the crass and prejudiced character of Jonathan, rather than to ridicule a transsexual character. Georgina is given her opportunity to tell Jonathan what she thinks of him at the end of the programme, referring to him as “incompetent, sexist, offensive and talentless”.

Although Ofcom appreciates this programme caused offence to some individuals, its intention was to draw out the characters, in the programme, in a manner which was both absurd and satirical. The reactions of the production team to the character of Georgina were a key part of the storyline (i.e. this is how certain individuals reacted to her) and therefore editorially justified. The programme did not condone or encourage such negative attitudes to transsexuals. The broadcaster met generally accepted standards given the specific context of a satirical drama. Therefore Rule 2.3 of the Code was not breached.
 
(1) To correct an error in the original finding, Ofcom substituted the word "gender" for "sexuality" on 19th February 2010.
 
Not in Breach of Rule 2.3

The full document and Fairness & Privacy cases are available below