a a a Display Options Cymraeg

Independent regulator and competition authority
for the UK communications industries.

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Broadcast Bulletin Issue number 136 - 22/06/09

Five News at 7, The Alan Titchmarsh Show, The Paul O’Grady Show, UEFA Champions League Live, The MySpace Chart, UEFA Champions League Live, The MySpace Chart, Sponsorship of Dexter, Maranam Muttuppulli Alla, Vanakathukuriyavarkal, Chat Café, George Galloway, Virgin Media Advertisement, Jeni Barnett & Dispatches: The Trouble With Boris.

Standards cases

In Breach

Five News at 7
Five, 5 February 2009, 19:00

Introduction

A viewer complained about an item during this edition of Five News at 7, in which a Garmin GPS running watch was reviewed. The complainant considered the tone and nature of the review to be promotional for the watch, that it made unflattering comments about a competitive brand and that Garmin might have had paid for the coverage. Generally, the complainant questioned the appropriateness of a news programme including an item of this nature.

Ofcom sought Five's comments under the following Code rules:

  • Rule 10.3 – Products and services must not be promoted in programmes…
  • Rule 10.4 – No undue prominence may be given in any programme to a product or service.
  • Rule 10.5 – Product placement is prohibited.

We also requested background information about how the watch came to be reviewed and what arrangements to feature it might have been made with the manufacturer or supplier.

Response

Overall, Five denied that the item was in breach of Rules 10.3 and 10.5 of the Code, but accepted that "on balance" the item may have been unduly prominent of the watch and therefore in breach of Rule 10.4.

Five explained that Five News at 7 had been relaunched at the beginning of 2009, targeting a young male audience. As part of the revamp an ad hoc gadget review feature was introduced. This feature has included reviews of netbooks, video goggles and a mini cinema projector. The format of the review offered a pre-recorded piece followed by a live studio 'chat' with a "gadget expert".

The broadcaster confirmed that no product is ever featured through agreement with manufacturers and that no "valuable consideration" was received by Five in return for including the Garmin watch in the programme.

After a decision to review runners' watches, the production staff selected five possible models, but could obtain only the Garmin and the Timex watches. The Timex was received only after the pre-recorded report had been completed. Also, no expert could be found to discuss the watch in the live studio segment and the reviewing reporter therefore had to fill that role.

In respect of the pre-recorded report, Five pointed out that references were made to the watch being "chunky" and "oversized on girly wrists", and that it is complicated to use: "the simple functions seem anything but simple".

Further, the broadcaster commented, during the live interview it was said that the Garmin watch comes with a substantial price tag: "but all of this comes at a price, £279 to be precise"; "comes at a price, it's quite expensive"; "they are expensive, they are a luxury"; "there are other brands that are cheaper"; "…you get what you pay for with these [GPS watches generally] ". Five also drew attention to the Timex watch being referred to by name and shown in close-up on a Timex branded stand.

As to editorial justification, Five argued that GPS watches are no longer limited to elite athletes and that, bearing in mind the new target audience of the programme - young males - it considered a feature on running watches was editorially justified.

Taking into account all these points, Five did not accept that the item was in breach of Rules 10.3 or 10.5: in Five's view, it was neither promotional, nor did it amount to product placement.

However, the broadcaster did "…accept that some of the references and information may have gone too far when considering this [the undue prominence] rule". Further, Five accepted that the item could have given the impression of external commercial influence on the programme, although there was in fact no influence. Five acknowledged that making the report only when all of the watches intended for review were available would have been preferable.

Five said that the requirements of the Code had been discussed in detail with the production staff to avoid any further problems of this sort.

Decision

Ofcom notes that Five stated that there was no commercial arrangement in place and we saw no evidence that product placement took place.

However, Five did recognise that the item may have, on balance, breached the rules on "undue prominence" (Rule 10.4 of the Code).

In Ofcom's view the item clearly gave undue prominence to the Garmin watch. Particularly important in this respect were the manner of the listing of the product's features combined with the positive comparison with the only other watch featured, and the nature of the shot in which the Garmin watch and attachments were set out in sequence on a table, teleshopping-style.

Ofcom's guidance to Rule 10.4 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; or
  • the manner in which a product or service (including company names, brand names, logos) appears or is referred to in a programme.

The item comprised a pre-recorded report and a live studio discussion about the Garmin watch. Within the report, a number of close-ups of the watch were shown, the watch's on-screen functions were focused on, a heart monitor accessory was shown separately, the watch was shown being used with a wireless laptop link (including a screen shot), and a table-top shot showed the watch surrounded by all its accessories (which appeared one after another).

The audio included the following comments in reference to the watch:

"…small but genius invention";

"…as easy to charge as a mobile phone";

"…this watch gives you the best of both worlds - I say this watch, generally running watches";

"…you get what you pay for with these";

"…there are other brands that are cheaper - there are other models of Garmin that are cheaper - but you got a lot less functions";

"…with that you're getting GPS, you're getting a speedometer, you're getting a pedometer; but you go for something more basic, like the Timex one you have there in your right hand and you're getting little more than a stopwatch and a light"; and

"…And is it worth it though?" "I think it's pretty good - you can actually buy them online cheaper than that £279. They are expensive, they are a luxury, but I think they're quite good."

In Ofcom's view, the manner in which the watch was described and shown in the programme resulted in undue prominence.

Further, the way the watch was demonstrated and the editorial nature of the report appeared to have some features in common with a teleshopping promotion. For instance, the watch and its accessories were displayed on a table-top in a stop-frame sequence in the pre-recorded report.  

A further factor in judging the context of undue prominence is the nature of the programme in which a report or sequence appears. In this case the review appeared as part of a news programme, part of the discussion provided by the show's news presenter. In such a context viewers would expect more balanced reporting and perceive the content as carrying particular authority. In such circumstances, the audience is likely to expect a more exacting test of undue prominence.

As to Rule 10.3 (that prohibits the promotion of products and services in programmes), in Ofcom's view the position of the item was very much more doubtful than argued by Five.

Rule 10.3 states that: "Products and services must not be promoted in programmes…". Broadly, Ofcom determines whether a product or service has been promoted within programmes by assessing both the degree of prominence given and the manner in which the products or services are discussed or referred to. Either can lead to 'promotion' on its own, depending on the extent and emphasis given to the coverage. Although promotion will frequently be active promotion – calls to action to purchase and the like – that is not, in itself, a necessary condition for breach of the rule.

In Ofcom's view this was not only a particularly egregious example of undue prominence, especially as it appeared in a news programme, but the product was featured so heavily and in terms that were essentially uncritical, that the report also breached Rule 10.3.

Breach of Rules 10.3 and 10.4

In Breach

The Alan Titchmarsh Show
ITV1, 23 March 2009, 15:00 and 26 March 2009, 15:00

Introduction

The Alan Titchmarsh Show is a daily magazine programme that celebrates the 'best of British', featuring items such as food and wine, fashion, showbiz, music, gardening, current affairs and consumer issues. The programme is broadcast either live or 'as live'.

23 March 2009
During this programme, Alan Titchmarsh interviewed the actress Jane Seymour. Ofcom received a complaint from a viewer who was concerned that the interviewee's jewellery range and clothing range were heavily promoted.

Ofcom noted that the interview was prefaced with a montage of clips from Ms Seymour's recent films, and included discussion of her role as the face of the clothing brand CC (Country Casuals), her new book, the availability of her new Open Heart jewellery range at H Samuels and her upcoming films.

26 March 2009
During this programme, Alan Titchmarsh interviewed the actress Stephanie Beacham. Ofcom received a complaint from a viewer who was concerned that Harley Street Skin Care products were "promoted in a prominent fashion".

Ofcom noted that during the five minute interview, the first half focussed on Ms Beacham's role in Coronation Street, and the second half focussed on appearance and skin care. Both Alan Titchmarsh and the interviewee referred to the Harley Street Skincare products which were displayed on the table in front of them. On one occasion, Alan Titchmarsh also referred to the website www.harleystreetskincare.co.uk.

Having viewed the website, Ofcom noted that Ms Beacham had worked with Harley Street Skin Care to create the range of products which were referred to during the programme.

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

  • 10.3 – Products and services must not be promoted in programmes. This rule does not apply to programme-related material;
  • 10.4 – No undue prominence may be given in any programme to a product or service; and
  • 10.5 – Product placement is prohibited.

Response

Channel Television ("Channel TV"), an ITV licence holder, who is responsible for the compliance of the programme on behalf of the ITV network (ITV), responded to Ofcom.

The broadcaster told Ofcom that no payment or other valuable consideration had been received by Channel TV or the production company for the inclusion of, or reference to any of the products within either of the programmes.

Channel TV said that the interviews were "entirely typical of the 'celebrity spot' on any magazine show in that the interviewees discussed career highlights, current ventures and ongoing projects". It added that all celebrities are booked because "they, their lifestyle or achievements, are of interest to viewers and no guest is booked in to the The Alan Titchmarsh Show unless they genuinely warrant their appearance by virtue of their public profile".

The broadcaster submitted that it retains full editorial control over the guests that are booked and that discussions are held with Channel TV's compliance team as to "whether guests who do have a commercial venture to promote are likely to be suitable for the show, given the requirements of [Section] 10 of the Code". It added that potential interviewees have in the past been rejected as they required assurances that their ventures "would be referred to in a specific, promotional, manner".

Channel TV told Ofcom that it receives many queries from viewers as to where products worn, mentioned by, or associated with the guests may be acquired, which is why the references to the Harley Street Skin Care website and the reference to the availability of the Open Hearts jewellery range at H Samuels were included in these programmes.

23 March 2009
Channel TV said that the interview with Jane Seymour was live and covered subjects such as her acting career, her success in the USA and advice for newcomers to the industry, before the conversation turned to her role with CC. The broadcaster said that at the time, Ms Seymour was making a brief visit to the UK to promote her new book in CC stores and submitted that her description of her role for the company was "very brief and restrained to simply stating 'I wear the clothes'". It added that Ms Seymour made no comment on the design, value for money or price of the clothes, but talked about how she had liked the people she had worked with at CC.

With regard to Ms Seymour's references to her jewellery collection, Channel TV said that "unprompted by Alan Titchmarsh, [she had] briefly mentioned that the self-designed necklace she was wearing had recently been licensed by H Samuels and was available in their shops. She did not refer to the fact that an entire range is available at H Samuels. Alan did not press or repeat this point [and] no price information was given".

The broadcaster submitted that "these brief references to Jane Seymour's commercial ventures were entirely tied into and justified by the editorial context in which they appeared. Channel TV added that there was no undue prominence for either CC or H Samuels and that it did not consider the "brief and editorially-relevant mentions" of either brand to be unduly promotional, rather that "they were entirely typical of the kind of straightforward factual mention appropriate in this kind of interview".

26 March 2009
Channel TV told Ofcom that this programme was broadcast 'as live'. It acknowledged that the set featured products from a skin care range with which Ms Beacham was connected. It added that the placement of the products on the table was approved by the compliance team "as the labelling was discreet; the products were not displayed to advantage and they were seen in medium close up only once during the interview". It added that neither Alan Titchmarsh nor Ms Beacham touched or displayed the products at any time and no price information was given. Channel TV added that although Alan Titchmarsh made "one very brief mention" of the manufacturer's website, this was the only time at which any specific information as to the name of the brand was mentioned.

Channel TV submitted that Ms Beacham "has always been famous for her good looks and thus the editorial relevance of these brief and non-promotional mentions of her skin care venture is clear". It stated that Ms Beacham discussed many topics before Alan Titchmarsh raised the subject of face creams and argued that "it is hard to see how light-hearted statements such as 'it's better really when you clean your teeth to shove on a bit of cream' can be interpreted as unduly promotional for any specific product". The broadcaster added that "the products were not afforded any visual prominence", no price information was given and the name of the product range was mentioned only once by Alan Titchmarsh.

Decision

Ofcom noted the broadcaster's assurances that neither it nor the production company had received payment, or other valuable consideration, for referring to any of the products referred to in either of the programmes and found no evidence that either of the broadcasts was in breach of Rule 10.5 which prohibits product placement.

With regards to the promotion of products and services in programmes, it is common for celebrity guests on chat shows and magazine-style programmes to refer to their latest venture. This is often an autobiography or an artistic endeavour, e.g. a film or play, and the reference is usually relatively brief. However, other products or services are also referred to. Accordingly, there is often sufficient editorial justification for the reference to avoid concerns arising under Section Ten of the Code. However, the more commercial the guest's venture and the more prominent the references to it within a programme, the greater the risk that such references may appear to be, in effect, promotional selling messages in breach of Rule 10.3, or unduly prominent in breach of Rule 10.4, or both.

It is the broadcaster's responsibility to ensure that any references to commercial products/services are appropriately limited so as not to become unduly prominent. Ofcom acknowledges that unexpected situations may arise in the case of a live broadcast.

23 March 2009
Ofcom noted the following references to CC, made during the interview:

AT:      "You're beautifully clad as ever."

JS:       "Yes. CC."

AT:      "CC. Not 10CC."

JS:       "No, no, just CC. CC. I mean it's so wonderful when you're not in England very often but when you come back and, you know, from the whole window, everywhere you go has these most beautiful photographs that I feel like I have to live up to, you know, me and the CC shops."

AT:      "So it was Country Casuals."

JS:       "Country Casuals."

AT:      "It's now CC. So what's your role with CC?"

JS:       "I wear the clothes [looks down at and touches her jacket to indicate that it is from CC] and I'm very happy to do it."

AT:      "If Paul Smith's watching out there [winks at the camera] "

JS:        "Actually they're fantastic people and also they put my book out there in the stores. I just went out to Bluewater yesterday and I met lots of people at CC. It was great fun. And I was signing my book and I signed lots more, so if anyone wants a signed book go to CC."

Ofcom recognises this programme was a live broadcast. However, in our view, the broadcaster did not attempt to draw the conversation away from the subject of Ms
Seymour's commercial venture as the face of CC, but in fact, he initiated the conversation by referring to his guest's clothes, "You're beautifully clad as ever". Further he sought clarification from her about the brand's full name and asked her to explain her association with the CC brand. This had more in common with a paid for promotion spot than a chat show.

While the references to the availability of Ms Seymour's jewellery range at H Samuels were brief and, on balance, appropriately limited, Ofcom was concerned that there was insufficient editorial justification for the manner and frequency of the repeated references to the CC brand during the interview and, as such, the references were judged to be unduly prominent.

26 March 2009
Ofcom noted that the second half of this pre-recorded interview was concerned with Ms Beacham's youthful appearance and how she had been able to achieve this without resorting to surgery.

Ofcom was particularly concerned that the skin care products had clearly been set out on the table in front of the presenter and Ms Beacham in advance of the interview, evidencing that the inclusion of references to the products had clearly been planned.

Further, Ofcom noted that during the interview, the conversation about skin care was initiated by the interviewer, Alan Titchmarsh, rather than the guest:

AT:      "You're looking so tremendous, not just in your clothes but in your complexion and I notice ladies and gentlemen on the table here what I think in the trade they call unguents";

to which Stephanie Beacham replied:

SB:       "Unguents. Yes. There comes a decision I think when you are at a certain stage and age. Is it the knife or are you going to do something else?!"
 
After discussing the fact that Ms Beacham had not undergone surgery to maintain a youthful appearance, the conversation continued in a promotional manner:
 
SB:      "You need stuff that's going to feed your skin. You need the tripeptides and anti-oxidants and vitamins…. You need something that's going to just stop the clock right now and keep your skin plump and dewy and radiant and here's the kit [nods towards the products on the table] ."

AT:      "Well it's working for you, I mean it's fab isn't it."

SB:       "Well it actually does work. The other thing is sun damage is dreadful. It ruins our skin."

AT:      "And you've had enough time in LA to discover that."

SB:       "Twenty-five years."

AT:      "Harleystreetskincare.co.uk. So it'll be on the website all the details."

The interview also covered the benefits of using cream on the skin rather than resorting to surgery, for example:

SB:      "It's sort of sad and it's a desperate chase isn't it [surgery] . It's better really when you clean your teeth at night to shove on a bit of cream and when you clean your teeth in the morning to do the same again."

AT:      "Shove your cream on and clean your teeth and she's a good advert for it."

Ofcom noted Channel TV's submission that Stephanie Beacham "has always been famous for her good looks and thus the editorial relevance of these brief and non-promotional mentions of her skin care venture is clear". However, in view of the fact that no explanation was given during the interview that the products were Ms Beacham's "skin care venture" (i.e. that she was involved in a commercial arrangement of some kind with the manufacturer of the products), Ofcom did not accept Channel TV's argument that references to her "skin care venture" were "editorially relevant" or editorially justified.

Ofcom noted that the product labelling was not clearly visible during the shots of the products on the table and the manufacturer of the products was only mentioned once, however it was a matter of concern that the products were displayed on the table at all as part of the interview. Regardless of the level of detail visible, Ofcom did not consider that there was sufficient editorial justification for this.

Ofcom considered that the guest made several claims that the ingredients in the Harley Street Skin Care products would keep skin looking youthful such as: "You need something that's going to just stop the clock right now and keep your skin plump and dewy and radiant and here's the kit". She then stated that the skin care range "actually does work". In Ofcom's view, these types of endorsements are comparable to the style and manner of those made about products being promoted in a teleshopping broadcast; this is emphasised by the fact that the inclusion of such claims in any broadcast advertisement for such products would require objective substantiation. Ofcom considered that there was insufficient editorial justification for such references during the programme.

Further, during the interview, the programme's presenter directed viewers to the Harley Street Skin Care website: "Harleystreetskincare.co.uk. So it'll be on the website all the details". Ofcom considered that there was not sufficient editorial justification for this reference.

In Ofcom's view, taking account of the nature and type of the references, including the sort of claims normally associated with advertisements, and the lack of any sufficient explanation for their inclusion in the interview, the overall purpose of the references appeared to be promotional. Ofcom found that the combination of the appearance of the products on the table, the nature of the guest's claims about the efficacy and benefits of the products, and the reference to the manufacturer's website were unduly prominent and promotional, in breach of Rules 10.3 and 10.4 of the Code.

23 March 2009: Breach of Rule 10.4
26 March 2009: Breach of Rule 10.3 and 10.4

In Breach

The Paul OGrady Show
Channel 4, 24 March 2009, 17:00

Introduction

During the opening section of his weekday chat show, the presenter mentioned that the members of the studio audience were: "…very nice people … but things are starting to sag on some of them…"

He added: "But help is supposedly at your hands – because for everybody in the audience we've been given this, and it's a free anti-aging serum called Ageless."

A close-up shot was shown of the product being held up to the camera by the presenter, as he joked with the audience and continued: "Seriously … honestly, it's called Ageless – I feel like I'm on QVC here! – Ageless … it reduces fine lines and wrinkles in five minutes – [to camera:] you haven't seen this lot! … now there's one for every member of the audience … you get one of these – Ageless – and I hope it works…"

Having briefly continued with his typical light-hearted banter, the presenter told the members of the studio audience that they would each receive the product at the end of the show, emphasising once again the product name, "…Ageless."

A viewer claimed that this "extended segment … [was] in contravention of the Code."

We asked Channel 4 for its comments with regard to the following Code Rules:

  • 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; and
  • 10.5 – Product placement is prohibited.

Response

The broadcaster said: "There was no agreement of any kind between Ageless and Channel 4 or [the production company] about the product being featured or shown in the programme." It added that "the Producer decided as part of an on-going joke to exaggerate [the presenter's] age and that of [its] dedicated audience by giving them a pot of anti-aging serum", which suited the presenter, who it said regularly joked about his age and the age of the studio audience.

Channel 4 said that "the script was carefully drafted not to promote Ageless and only included one verbal reference to the product." It considered the reference to the product and its claims to be editorially justified, as they "contextualised the joke and played on the fact that whatever [the presenter] and the audience do they cannot cheat old age as it is an inevitable fact of life." Channel 4 said that it had planned references to "apparently", "supposedly" and "let's hope it works" to ensure that it was not seen as endorsing Ageless. The broadcaster also noted that the joke ended with the presenter revealing a large exaggerated container of generic (unbranded) anti-aging serum, which indicated how much assistance he would need to look young again. The prop was styled in "typical comical fashion to avoid undue prominence to the Ageless brand…"

The broadcaster provided the wording of the intended script, from which it acknowledged that the presenter had deviated "in the sheer exuberance of the moment, and unfortunately on a live transmission … for comedic purposes in the context of the on-going joke. It was never intended as a conscious name-check or endorsement of a commercial brand."

Decision

Ofcom noted Channel 4's assurance that the anti-aging serum had not been featured in the programme as part of a commercial agreement and therefore found no evidence that the broadcast was in breach of Rule 10.5 of the Code.

We also noted that the programme was transmitted live, and the presenter deviated from the intended script. Unfortunately, however, this resulted in Ageless being referred to on six occasions and without sufficient editorial justification. Ofcom found these references to be unduly prominent. The broadcast was therefore in breach of Rule 10.4 of the Code.

The comic effect of the presenter's performance was clear. However, we noted the following:

  • Six references to Ageless took place in a little over two minutes – as opposed to a single passing reference scripted in an intended segment of approximately 45 seconds;
  • While one of the scripted lines was "apparently it reduces fine lines and wrinkles in five minutes", the presenter, in fact, stated an advertising claim: "it reduces fine lines and wrinkles in five minutes"; and
  • The product's packaging was clearly visible throughout most of the segment, held by the presenter for around 50 seconds and shot in close-up.

Ofcom considered that the overall effect of the item was to promote and endorse this commercial product, irrespective of the intention of the broadcaster or the presenter. The cumulative effect of the manner and frequency of these repeated references, including an advertising claim, was that the product appeared to be promoted in the programme, in breach of Rule 10.3 of the Code.

Breach of Rules 10.3 and 10.4

In Breach

UEFA Champions League Live
ITV1, 14 April 2009, 19:30

Introduction

During the post-match analysis of this UEFA Champions League football match, a viewer was concerned that the presenter referred to a DVD being on general sale:

"Highlights tonight of this game and the Bayern/Barcelona match on ITV1 at 10:35. Following that, there's another chance for you to see that acclaimed Clough documentary at 11:40. It's also been released on DVD and is now on general sale as well."

There was an accompanying full screen visual of the DVD cover and the text: "Clough Tonight 11:40pm ITV1".

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

  • 10.3 – Products and services must not be promoted in programmes. This rule does not apply to programme-related material.

Programme-related material ("PRM") is defined as products and services that are both directly derived from a specific programme and intended to allow listeners or viewers to benefit fully from, or to interact with, that programme.

Response

ITV Broadcasting Limited ("ITV Broadcasting") is responsible for the compliance of the programme on behalf of the ITV network (ITV1).

ITV Broadcasting said that the Clough documentary referred to in the programme was an ITV Sport production. It submitted that the documentary about Brian Clough's life and career, particularly the parts about his European Cup triumphs (i.e. the fact that he is the only manager to have won successive European Cup trophies), was of "significant interest and relevance to the viewers of this Champions League game".

The ITV Sport production team therefore felt that it was appropriate towards the end of the Champions League coverage to remind viewers who may have missed the documentary when it was first broadcast that it was being repeated later that same evening. However, it considered that many viewers who would be interested in watching the programme would be unable to due to its late scheduling at 23:40, and therefore the producers felt it was editorially justified to also refer to the release of the programme on DVD. The broadcaster said that this information (i.e. "It's also been released on DVD and is now on general sale as well") was "very brief and general as to its availability".
 
The broadcaster said that it recognised that the Clough DVD did not qualify as programme-related material in this context, because the content was not directly derived from the Champions League programme content. However, it believed the reference to the DVD would have been acceptable as a reference to programme-related material had it followed immediately after the Clough documentary itself, broadcast at 23.40. Nevertheless, the broadcaster suggested that in the context of the Champions League post-match coverage, "as a short addition to the commonplace announcement of what was coming up on the channel later that evening, the reference [to the DVD] was sufficiently editorially relevant, brief and informational, rather than directly promotional, so as not to constitute a breach of Rule 10.3".

ITV Broadcasting argued that given the relationship in subject matter between the Champions League and a documentary focussing on "a football legend intrinsically linked with European football", it did not believe the reference to the DVD should be considered as a breach of the Code. However, it said that it did accept that "as a general rule references to DVD releases in programme time always require strong editorial justification, and that it had now given further guidance to the ITV Sport production team on the need for care when making any reference to the availability of such a retail product, particularly where it is not programme related material as such".

Decision

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. 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 be both directly derived from a specific programme and allow viewers to benefit fully from, or interact with, that programme.

Ofcom does not accept that the relationship between the Champions League and an ITV Sport documentary focussing on an individual known for having been the only manager to have won successive European Cup trophies was sufficient editorial justification for referring to the ITV Sport DVD during this particular programme. As acknowledged by ITV Broadcasting, the DVD was not directly derived from this programme, nor did it allow viewers to benefit fully from this programme and as such could not be considered to be PRM. The reference to the DVD was therefore in breach of Rule 10.3.

Breach of Rule 10.3

In Breach

The MySpace Chart
MTV Two, February 2009, various dates and times

Introduction

The MySpace Chart features music videos from a chart compiled from viewer votes. The programme is sponsored by MySpace, a social networking website. Viewers can view videos on MTV Two's MySpace page or on the programme's own website, where they can vote for their favourite video.

Ofcom noted that throughout each hour long programme, the programme title, accompanied by the channel logo, remained on-screen constantly.

We sought MTV's comments on the references to MySpace under the following Code Rules:

  • 9.4 – A sponsor must not influence the content and/or scheduling of a programme in such a way as to impair the responsibility and editorial independence of the broadcaster; and
  • 9.5 – There must be no promotional reference to the sponsor, its name, trademark, image, activities, services or products … Non-promotional references are permitted only where they are editorially justified and incidental.

Response

The broadcaster, MTV Networks Europe ("MTVNE"), advised that the programme was sponsored by Fox Interactive Media UK Limited (t/a MySpace UK). MTVNE provided Ofcom with a copy of the sponsorship contract.

MTVNE stated that the programme was scheduled exclusively by its scheduling department and the times of broadcast were consistent with the times an established chart had been broadcast on MTV Two before the sponsorship arrangement existed.
 
In relation to the on-screen programme title, MTVNE explained that all of its channels identify programmes via a digital on-screen graphic. The font, size and position on screen of this graphic are exactly the same for all channels. It was for this reason that the programme name appeared in the top right hand of the screen during the programme. MTVNE explained that it broadcasts many chart based programmes on its channels and it was important for it to use this navigation graphic to help viewers identify which chart they are watching. On this basis, the broadcaster considered the reference to the programme title throughout the programme was editorially justified.

MTVNE said that it believed the on-screen graphic was not promotional for MySpace: it did not incorporate the MySpace logo or corporate font. The broadcaster assured Ofcom that no discussions took place between itself and the sponsor regarding the size, font or positioning of the graphic. The on-air references to the programme title were not a contractual requirement of the sponsorship arrangement.

MTVNE advised Ofcom that, pending the outcome of the investigation, it had removed the graphic from screen.

Decision

We note MTVNE's assurance that the content and scheduling of the programme was not unduly influenced by the sponsorship arrangement: this was supported by the sponsorship contract submitted by the broadcaster. We therefore found the programme not in breach of Rule 9.4.

Regarding the references to the sponsor throughout the programme, it is acceptable for broadcasters to integrate a sponsor's name into a programme title as a way of identifying a sponsorship arrangement. However, broadcasters must take extra care, when using the sponsor's name in this way, to avoid giving undue prominence to the sponsor by referencing the programme name excessively during the programme. If references to the programme title occur in the programme, they should be editorially justified and incidental to ensure that the resulting sponsor references comply with the Code.

In this case, we noted that MTV uses continuous on-screen graphics to display programme titles in its other programmes to help viewers identify the programme they are watching. However, in Ofcom's view, the inclusion of a commercial reference (i.e. the name of a programme sponsor) within such a graphic changes the nature of this type of on-air reference, and creates the potential for undue prominence.

Ofcom did not therefore consider that the regular use of such graphics in other MTV programmes constituted sufficient editorial justification for the continuous display of the sponsor's name, contained in the on-screen graphic, throughout this programme. Ofcom found that this continuous reference to the sponsor was excessive, not incidental and not justified by the editorial requirements of the programme. It was therefore in breach of Rule 9.5 of the Code.

Breach of Rule 9.5

In Breach

Sponsorship of Dexter
FX, May 2009, various dates and times

Introduction

Dexter, a TV cop drama series, was sponsored on the television channel FX by the film Angels & Demons, released in cinemas in May 2009.

The sponsor credits shown before the start and after the end of the programmes were 15 seconds long and, other than two brief sequences of voice-over, contained only footage and audio from the film. The voice-overs were "Tell the world the truth" and "Angels & Demons sponsors Dexter on FX HD and FX".

The internal 'bumpers' – those sponsor credits shown around the internal breaks in the programmes – were very brief, two or three seconds, and included only the second of the voice-overs. Both the longer and shorter credits also contained a caption with a website address: " www.angels-and-demons-may14.co.uk ".

Rule 9.13 of the Code requires 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".

In light of this rule, a viewer queried the inclusion of the release date in the film's web address within the sponsor credits.

Ofcom was also concerned about the general presentation of the longer credits: that they were essentially no different to promotional trailers for the film – in other words, that they closely resembled advertisements.

Ofcom requested FX's comments under Rule 9.13. In particular, we sought the licensee's comments on how it believed the content of the longer credits complied with the need for them to be "clearly separated from advertising" and how the use of the website address and its reference to the release date of the film complied with the need for the credits not to "contain advertising messages or calls to action" and "…not encourage the purchase or rental of the products or services of the sponsor or a third party".

Response

FX accepted that it had "got the balance of the credits wrong" and that "undoubtedly these credits are in breach of Rule 9.13". FX apologised for the breach.

Further, the licensee said that it was having the credits re-edited to reduce the film footage considerably and to have the release date removed from the website address contained in the caption. The new credits would replace the old ones immediately.

FX said that it had directed relevant staff to the findings and guidance note published by Ofcom in Bulletin 130, "…so they understand the importance of ensuring that in future sponsorship credits are compliant". In addition, FX stated that it was reviewing its internal systems for clearing sponsorship credits and had included an external compliance consultant in its process for assessing sponsorship credits before transmission.

Decision

Ofcom noted the licensee's unequivocal acceptance of the breach and acknowledged the very speedy and thorough way in which the matter had been handled.

The purpose of Rule 9.13 is to give effect to a requirement of a European Directive which states that:

"they [sponsored programmes] must not encourage the purchase or rental of the products or services of the sponsor or a third party, in particular by making special promotional references to those products or services." (Article 17(1)(c))

This means that sponsor credits on television should not resemble advertisements by, for example, employing advertising techniques such as product claims, availability statements (including outlets, release dates and the like), pricing information and so on. More broadly, as stated in Ofcom's published guidance to Rule 9.13, sponsor credits do not count towards the amount of advertising that is permissible and so should be readily distinguishable from advertisements.

In a guidance note on the application of Rule 9,13, published on 23 March 2009 in issue 130 of the Bulletin (-1-), we explained that when judging whether a television sponsorship credit is sufficiently distinct from advertising, Ofcom may take into account a number of factors. These include but are not limited to:

  • What is the primary focus of the credits? Is the focus of the credits the sponsorship arrangement itself or the sponsor's product or service?
  • What information about the sponsor's products/services is included in the credits? A brief description can help identify the sponsor. Detailed descriptions, references to positive attributes, or claims – particularly those that are capable of objective substantiation – about the sponsor's products/services (e.g. market leadership, health benefits, efficacy) are likely to result in credits breaching the Code.
  • Do the credits contain content that is likely to encourage the viewer to contact the sponsor? Basic contact details (websites etc.) may be included but invitations to contact the sponsor or purchase goods/services are unacceptable.

It is important for TV broadcasters always to remember that the main purpose of a sponsor credit is to create an association between the sponsor and the sponsored programme that enables viewers to identify the sponsorship arrangement; it is not the role of sponsor credits to act as advertising vehicles for products and services.  Licensees must therefore exercise care to ensure that the general character of sponsor credits does not resemble that of advertising.

Where, as here, the sponsoring product is itself an audiovisual work, extracts from it should be limited and subordinate to the purpose of sponsorship – creating an association between the sponsor and the sponsored programme. Website addresses are acceptable in sponsor credits but, as with product names, must not contain claims or other information characteristic of advertisements.

In Ofcom's view, both the general construction of the credits and the particular inclusion of the release date in the film's website address were in breach of Rule 9.13 because the overall impression given by the credits was of an advertising message.

Breach of Rule 9.13

  1.- Issue 130 of the Bulletin is available at: http://www.ofcom.org.uk/tv/obb/prog_cb/obb130/

In Breach

Maranam Muttuppulli Alla
Global Tamil Vision, 2 November 2008, 19:00

Vanakathukuriyavarkal
Global Tamil Vision, 27 November 2008, 17:10

Introduction

Global Tamil Vision ("GTV") is a satellite channel broadcasting content to an ethnic Tamil audience. Ofcom received a complaint concerning a programme broadcast by GTV on 2 November 2008 called Maranam Muttuppulli Alla. The complainant felt that the programme glorified the terrorist activities of the Liberation Tigers of Tamil Eelam ("LTTE") and certain of its members. During its investigations, Ofcom also considered a further programme broadcast by the channel on 27 November 2008 called Vanakathukuriyavarkal.

Ofcom commissioned independently-produced translations of both programmes ("the Programmes"), and noted various references to the activities and leaders of the LTTE, which is presently a proscribed terrorist organisation under the Terrorism Act 2000. This means that under current UK legislation, it is unlawful to be a member of the LTTE, to raise funds for it or to invite or encourage support for it.

In summary, Ofcom noted the Programmes consisted of the following content:

Maranam Muttuppulli Alla ("the 2 November Programme")
The 2 November Programme was broadcast as a memorial programme on the anniversary of the death of the LTTE political leader, S.P.Tamilchelvan, and of five other members of the LTTE. It included various interviews, speeches and songs that commemorated the life of Mr Tamilchelvan.

Vanakathukuriyavarkal ("the 27 November Programme")
The 27 November Programme was broadcast on Heroes Day (-1-), and consisted of a series of songs, speeches and poems which commemorated the actions of the LTTE and its leader, Velupillai Prabhakaran.

Ofcom considered whether the content of the Programmes could potentially be seen to glorify the activities of the LTTE, a proscribed terrorist organisation. Ofcom therefore wrote to GTV asking for its comments under the following Code Rule:

  • 2.4 – Programmes must not include material (whether in individual programmes or in programmes taken together), which, taking into account the context, condones or glamorises violent, dangerous or seriously antisocial behaviour and is likely to encourage others to copy such behaviour.

Response

In its response, GTV said that it broadcasts predominantly to the Sri Lankan "Diaspora", and made a number of points about the Programmes.

2 November Programme
The broadcaster said that this programme, commemorating Mr Thamilchelvan's death, complied with the Code, and referred to the "feelings of utter dismay and shock expressed in many world's leaders' statements of hearing of Mr Thamilchelvan's demise". GTV added that "all we attempted to do was pay tribute to a fondly remembered leader who dedicated his last five years to search for a politically negotiated settlement".

GTV said that for the majority of its target audience, Sri Lankan Tamils: "Mr Thamilchelvan was the last hope of achieving a lasting, politically negotiated solution to the ethnic problems facing Sri Lanka". According to the broadcaster, Mr Thamilchelvan was the head of the political wing of the LTTE, and that the Tamil community perceived him as a "messenger of peace" akin to "Gerry Adams (former political leader of the IRA)". Given this context, GTV decided to broadcast a programme commemorating the first anniversary of Mr Thamilchelvan's death, something that it had not done "to remember other fallen cadres of the LTTE". GTV felt that it was necessary "to remind our viewers of his political activities so that someone else will be encouraged to take over and continue his peace building efforts". However, in outlining Mr Thamilchelvan's activities, including as the Tamil chief negotiator in the peace summits, overseen by the Norwegian Government, GTV said the programme also mentioned five of his colleagues who died at the same time that he did.

GTV also explained the background to two of the statements featured in the programme, which Ofcom had highlighted. First:

"We vow to take revenge in future for the death of these six brave soldiers, by showing the different faces the Tamils hurt by the Singhala domination."
(All of the programme extracts included in this Finding are transcripts of the original translations provided to Ofcom by an independent external translation company).

GTV said this statement was part of a poem used at Mr Thamilchelvan's funeral, which says that Mr Thamilchelvan and his six colleagues would not be forgotten "and the work they will continue and this is the best form of revenge Tamils hurt by the Singhalese (-2-) can exact". Second:

"Never ever forget this. We have not buried our brother Tamilchelvan in the burial ground. We have buried him in our hearts and minds. We will rise! We will rise! Will rise as Tigers! Will become soldiers! Tamil Eelam will win!"

GTV said this statement was from a speech by a Tamil politician, Dr Seeman, speaking at Mr Tahmilchelvan's funeral, and was part of a section of the programme "in which we tried to show our viewers how the Tamils felt all over the world about the news of Thamilchelvan's death". The broadcaster said that Dr Seeman's speech at Mr Thamilchelvan's funeral had to be seen in the context of a speech given prior to his, which had referred to the "Chola Empire and its Tiger citizens" (-3-), but had not been included in the 2 November Programme. Dr Seeman's comments therefore were referring to this previous, unbroadcast speech. GTV said it had not edited Dr Seeman's speech because "he did not refer to [the] LTTE or its soldiers".

27 November Programme
GTV said that, having reviewed the programme, some of the content in the programme should not have been broadcast. In doing so, the broadcaster accepted that "we have inadvertently breached…Rule 2.4". GTV added that having been contacted by Ofcom, it had "taken all necessary precautions so as not to make a similar mistake in future".

Decision

Ofcom understands that some its licensees will be directing their services predominantly to the members of a single ethnic or cultural group. It is therefore inevitable and appropriate that the output of such channels will be dominated by issues that concern and are of interest to the members of the particular ethnic group. In this case, GTV specifically directs its service to members of the Tamil community living in the UK. It is therefore unsurprising that given the nature of the conflict between certain elements of the Tamil minority and the Sri Lankan Government, that a channel such as GTV might have touched upon points of view, including the LTTE's, arguing for an autonomous Tamil state within Sri Lanka.

The Code does not preclude broadcasters from discussing or covering the activities of proscribed terrorist organisations, such as the LTTE. Ofcom recognises that it would be an unacceptable restriction on a broadcaster's freedom of expression (-4-) to curtail coverage of certain issues, including the activities of recognised terrorist organisations in any way. However, in broadcasting such content, broadcasters must be aware of the need to comply with the general law and the Code, and in particular Rule 2.4. The relevant test under Rule 2.4 is that content must not: firstly, taking into account the context, condone or otherwise glamorise violent, dangerous or seriously antisocial behaviour; and secondly, be likely to encourage others to copy such behaviour.

Ofcom considered each of the Programmes in turn.

2 November Programme
Ofcom noted that this programme, consisting mainly of interviews and telephone contributions, was a commemorative tribute to S.P. Thamilchalvan, who headed the LTTE's political wing until his death in 2007. Much of the programme stressed Mr Thamilchalvan's role in various attempts to broker peace between the LTTE and the Sri Lankan Government, and Ofcom noted that Mr Tahmilchelvan is revered by certain members of the Tamil community. Ofcom also noted GTV's submissions that one speech, by the Tamil politician Dr Seeman, should be seen in the context of references to a particular period in South Asian history.

However, Ofcom noted the following content was broadcast within the programme:

"Tamilchelvan set foot on the path of liberation…he grew into a full-fledged soldier on whom courage and tactics were directly inducted by our leader."

"We vow to take revenge in future for the death of these six brave soldiers, by showing the different faces the Tamils hurt by the Singhala domination."

"Then our great leader adopted the violent path of the struggle to wrest our rights that are now in the hands of the enemy."

"Struggle is inevitable. It is a protective endeavour without which one's ethnicity will be destroyed, one's family will be mutilated, one's education will be spoiled, one's mother will be killed, one's sister will be raped."

"We do not fear and hide, but destroy the enemy camp with tremendous strength."

"I wish to request one and all of our people to do all within your capability to defeat the forces that are against this liberation struggle."

Ofcom considered that these statements went beyond merely commemorative references to a departed political leader, and could reasonably be seen to glorify and support the activities of the LTTE. Further, the content could reasonably be construed as likely to encourage others to copy such behaviour and support the activities of the LTTE. Therefore, Ofcom concluded that this programme was in breach of Rule 2.4.

27 November Programme
Ofcom noted that this programme was broadcast on Heroes Day, an important day in the Tamil calendar. At the beginning of the programme, Ofcom noted the following was broadcast:

"Today is the day to remember those martyrs who lost their lives in battlefield, fighting with the treacherous army that steps to our soil."

The programme then contained songs, poems and speeches, which included various references to the activities of the LTTE and its leader:

"Praise the great name of the Tigers".

"This is the day, when once a year we announce to the world the courage and speed of the soldiers in saving the Tamil Eezham (-5-). Even if we asked to go it alone, the soldier goes first as an example to others, he bathes in the blood and makes the sea of Eezham a graveyard – this is the day when we praise them."

"Today is the day when we praise the valiant soldiers, let us praise them, we will worship them, and we will put flowers at their grave."

"We will not rest until we get the Tamil Eezham. The birth of Tamil Eezham is assured. It will be under the leadership of Prabakharan."

"I will cut the heads of those who attack the Tamil Eezham people without any kindness, those fools who attack the people."

"We will harm with sharp sword the generation that made sound and came to fight for money, this is the truth I tell you."

Ofcom recognises that songs and poetry have a long tradition of dealing with the full range of human experiences and emotions. Just because content, in lyrical form, may refer to acts of violence, does not mean that there has been a breach of the Code. For example, certain songs and poetry may contain references to political struggles such as fights for independence, and such content would need to be considered in such a context. In this case, however, Ofcom considered that the 27 November Programme contained various instances of commemorative material that supported and glorified the activities of the LTTE and its leader. Further, Ofcom considered that this material went further than merely commemorating the activities of Tamil cultural figures, but in several instances could reasonably be construed as likely to encourage others to copy such behaviour and support the activities of the LTTE. Given this, and the fact that GTV had expressly admitted a breach of the Code, Ofcom decided that this programme was in breach of Rule 2.4.

Ofcom considered the breach of these rules to be very serious. The right to broadcast comes with it responsibilities. It is important that broadcasters do not inappropriately use a licence to broadcast to, for instance, glorify violence.  On this occasion Ofcom did not impose a statutory sanction.  However, the broadcaster should be aware that further recurrence of such breaches could lead Ofcom to consider taking further regulatory action.

Breach of Rule 2.4

Footnotes:

  1.- Heroes Day is an annual commemoration by LTTE supporters to honour the deaths of members of the LTTE.

  2.- The majority ethnic group in Sri Lanka.

  3.- According to GTV, at Mr Thamilchalvan's funeral, a speaker prior to Dr Seeman had referred to the Chola empire, that had previously existed in Southern India, and its "Tiger Citizens…[who had] centuries ago, again and again rose from many setbacks and created a parallel of [the] Diaspora Tamils' current mood to those of the Tiger citizenry of the then Chola Empire".

  4.- As enshrined in the European Convention on Human Rights.

  5.-Also known as Tamil Eelam, which is the name given by some Tamil groups for a Tamil homeland.

In Breach

Chat Café
LA Babes, 25 February 2009, 13:00

Introduction

Chat Café is a daytime chat programme broadcast without access restrictions. It is located in the 'adult' section of the Sky Electronic Programme Guide ("EPG") on the service LA Babes (Sky channel number 956). Viewers can call a premium rate telephone number and talk to an onscreen presenter. Viewers can see the female presenters engaged in conversation but cannot hear what is being said as music is played over the images. At certain intervals the presenters can switch on a microphone and speak directly to viewers to encourage them to call the premium rate telephony service ("PRS") number.

Ofcom received a complaint that material broadcast at lunchtime featured a presenter in a low cut top and mini skirt engaged in inappropriate activities for a daytime broadcast. These included: jiggling her breasts to the camera; shaking her bottom in front of the camera and lifting her skirt to reveal her buttocks; and opening her legs leaving the viewer with an impression that she was not wearing any underwear and simulating masturbation with a microphone.

Ofcom asked the licensee, Fierce Media, for comments under Rule 1.3 (children must be protected from unsuitable material by appropriate scheduling) and Rule 2.3 (broadcasters must ensure that material which may cause offence is justified by context).

Response

With reference to Rule 1.3 the licensee argued that this rule was not breached given that the material was scheduled in the 'adult' section of the EPG where viewers could expect to find material of a similar nature and even of a "more overtly sexual nature" at this time of day. Furthermore, any children who may have been accidentally exposed to this content would not, in the broadcaster's opinion, understand the meaning of the gestures or of the show in general. In terms of the content, the broadcaster stated that the presenter was dressed correctly at all times.

However, the presenter's simulated masturbation of the microphone and the occasional touching of her upper body – even though they were presented in a fun and playful, not sexually explicit way – were not in line with the broadcaster's own internal guidelines for the time of broadcast. Consequently the licensee had dismissed the producer and suspended the presenter with immediate effect.

Furthermore, Fierce Media also confirmed that the service LA Babeshad been taken off-air for an indefinite period following this complaint.

Decision

Rule 1.3 makes clear that children should be protected from material which is unsuitable for them by appropriate scheduling. This is judged according to factors such as the nature of the content, the nature of the channel and the time of broadcast.

In this case the nature of the content included a presenter behaving in an overtly sexual manner and, by the broadcaster's own admission, had engaged in simulating masturbation with a microphone at the request of a caller. Whilst taking other telephone calls, the presenter also engaged in actions such as getting up from the bed and standing with her bottom to the camera; lifting her mini skirt to reveal her buttocks then stroking them suggestively; and lowering her top to reveal her cleavage and then jiggling her chest to the camera.

The licensee stated that the presenter was wearing knickers at all times. In Ofcom's opinion, however, the broadcast images gave the impression to the viewer that the presenter was wearing minimal, or no, underwear. This was apparent when she opened and closed her legs in front of the camera.

Given that these activities and images were not suitable for daytime broadcast, it was Ofcom's view that the positioning of this channel in the 'adult' section of the EPG was not sufficient to provide adequate protection to prevent children from accessing the content and this was a breach of Rule 1.3.

Furthermore, it was also Ofcom's view that the broadcast of this material would have exceeded the expectation of viewers watching television during the day and was therefore offensive. 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 this case, Ofcom was of the opinion that the editorial content as set out above was not appropriate for the time of broadcast, and the type of service and positioning in the 'adult' section of the EPG did not provide adequate context to protect viewers from the offensive material.

Breach of Rules 1.3 and 2.3

In Breach

George Galloway
Talksport, 22 November 2008; 27, 29 December 2008; 2, 9 January 2009, 22:00

Introduction

George Galloway MP of the Respect Party presents a twice weekly evening phone-in programme on Talksport in which he debates a wide range of topical issues with listeners who phone in. The programme (" George Galloway") also features interviews with celebrities, politicians and media commentators. It varies in length but is normally between two and three hours in duration. The topics covered are often political in nature and, because of the programme's length an opportunity is afforded for detailed discussion of current events.

Ofcom received a total of 14 complaints in respect of the programmes referred to above. All of the programmes about which Ofcom received complaints featured, to differing degrees, heated debate between George Galloway, listeners and media commentators on the situation in the Gaza strip. Listeners also heard strongly held views forcefully put by many callers to the programmes. The subject was particularly emotive during the period when these programmes were broadcast because on 27 December 2008 Israel launched an offensive on the Gaza strip which it said was to stop Hamas from firing rockets into Israel. George Galloway has long been recognised as an outspoken critic of the Israeli government.

On 27 December 2008 George Galloway chose to deal extensively with the Gaza situation on his programme. He returned to the issue on various occasions in the days and weeks that followed, as the conflict in the region continued. He encouraged listeners to call in with their views and also interviewed various commentators on the subject. Ofcom received a number of complaints about the content of these programmes from listeners who believed that George Galloway was biased against Israel and did not allow callers holding an opposing view to his own an adequate opportunity to comment. One complaint related to George Galloway's perceived anti-Israeli bias for similar reasons on the broadcast of 22 November 2008. This was before the Israeli offensive of 27 December 2008.

Several listeners also objected to George Galloway's call, on a number of the programmes, for listeners to attend planned demonstrations against Israeli actions in London and elsewhere.
 
The recent Israeli presence in Gaza, and the pre-conflict situation in Gaza are matters of "major political controversy" under the Code and must be treated with "due impartiality". Ofcom therefore asked Talksport to comment on George Galloway in light of the relevant Code rules:

  • Rule 5.11 – … due impartiality must be preserved on matters of major political and industrial controversy and major matters relating to current public policy by the person providing a service (listed above) in each programme or in clearly linked and timely programmes.
  • Rule 5.12 - In dealing with matters of major political and industrial controversy and major matters relating to current public policy an appropriately wide range of significant views must be included and given due weight in each programme or in clearly linked and timely programmes. Views and facts must not be misrepresented.

Response

Talksport pointed out that the Code makes clear that the approach to due impartiality may vary according to the nature of the subject, the type of programme and channel, the likely expectation of the audience as to content, and the extent to which the content and approach is signalled to the audience. It then addressed each of these factors in turn:

The nature of the subject
Talksport maintained that the Israel-Gaza problem crosses party lines in this country and is not a party political issue. It pointed out that the Israeli government's actions in December 2008/January 2009 were condemned by the majority of the international community and that the situation in Gaza deteriorated to such an extent that it was regarded as a humanitarian crisis. In its view the nature of this subject had a very real bearing on the approach to due impartiality in this case.

The type of programme and channel
Talksport pointed out that the station has a national reputation as one that employs highly opinionated presenters. It said the phone-in format employed on George Galloway is well-known to the general public, who enjoy hearing heated debate about topics that are the talking points of the day. Talksport emphasised that George Galloway himself is famous in Britain for being an outspoken politician who, since his arrival on Talksport, has built up a reputation as a hard-hitting broadcaster. He and the audience recognise that Talksport phone-ins are not overly formal discourses, as may sometimes be the case on more traditional radio stations. They rely more on a passionate exchange of views which is sometimes combative and often emotive.
 
The likely expectation of the audience as to content, and the extent to which the content and approach is signalled to the audience
The broadcaster said that both the station and the presenter are extremely well-known quantities so that people who tune in know what to expect. It also said that George Galloway's views on the Middle East are equally well-known to regular listeners as well as non-listeners. In addition it was stressed that throughout his programmes, George Galloway encourages people with an alternative point of view to call. He prioritises such callers and terminates their calls only if he thinks they have made or are likely to make racist comments, defamatory comments or in his view are deliberately misinforming the listeners.

In summary therefore, Talksport argued that these factors should all be considered by Ofcom when reaching a decision on whether the approach to due impartiality on this occasion was appropriate.

The broadcaster then discussed how in its view the programmes met Code requirements. It said that central to the rules is the need for differing viewpoints to be aired and argued that far from opposing views being excluded on the programme, alternative views to the presenter's are given priority by both the presenter and his production staff. It then went on to illustrate how these alternative views were aired.

Talksport began by saying that on a matter of controversy like this, the fact that more callers take one view rather than another is nobody's fault. One view may be more popular, or listeners with a similar point of view to the presenter may be more numerous than those who oppose his view. It said that pro-Israeli callers were not just taken to air, but were prioritised and more callers with this viewpoint were asked for by the presenter. It referred to the programme of 27 December 2008, which was taken up almost entirely with the situation in Gaza (the Israeli offensive having commenced on that day). It said that the fact that five callers who disagreed with George Galloway were heard on air proved that alternative views were not excluded. It said that the fact that there were fewer callers who disagreed with him than agreed with him was beyond its control and was, in the station's view, a fair representation of the general public's sentiments on this issue. Talksport also directed Ofcom to a morning programme three days later when George Galloway stood in for a colleague. It said that on this programme George Galloway took many contributions from callers with a pro Israeli viewpoint and was joined by a pro-Israeli journalist.

The station went on to give details of pro-Israeli guests on George Galloway during the timeframe of the complaints. It described how, in the programme of 22 November 2008, Lorna Fitzsimmons of the British Israeli Communications and Research Centre responded in a highly articulate way to comments made by a previous guest (the journalist Lauren Booth) who had described the unfolding of a humanitarian crisis in Gaza. The station pointed out that the appearance of a pro-Israeli guest had been signalled to listeners in advance by George Galloway, who explained that he had "a strong point of view on this", which was the same as Lauren Booth's and pointed out that another view was needed. When Lorna Fitzsimmons came to air, she contradicted George Galloway and was able to make her points without interruption for much of the interview. She criticised Booth for making comparisons between the Gaza crisis and concentration camps and told George Galloway that Israel unfairly gets all the blame for the humanitarian crisis which, she said, was not of its making. She went on to describe Hamas as brutal and described their "terror".Talksport maintained this was a clear and fair presentation of an alternative viewpoint on the programme. Other examples of alternative views on the Gaza conflict on George Galloway were: an extended interview on 30 December 2008 with a pro-Israeli journalist toward the end of the show which had been signalled to listeners on the previous day; a discussion on 2 January 2009 between George Galloway and a well known, pro-Israeli journalist; and the defence of the Israeli position by the pro-Israeli American Republican Samuel Joe Wurzelbarcher on 9 January 2009.

Talksport also wished to highlight that, on 3 January 2009 when news broke that Israeli forces had occupied the Gaza Strip, in order to comply with the Code rules on due impartiality in news, Talksport's Programme Director replaced George Galloway with an enhanced news programme presented by the non-partisan presenter Ian Collins to reflect the fact that a rolling news event was being dealt with.

Talksport then provided details of what it said was a wide variety of viewpoints alternative to Galloway's on this issue on the station's output generally during the relevant timeframe. On 29 December 2009 for example the presenter Ian Collins discussed the situation in the Middle East from a non-partisan point of view, allowing all sides to have their say and putting forward the Israeli point of view. Similarly, on 30 December 2008, presenter Mike Graham defended the Israeli point of view and Ian Collins discussed the issue again, in a non-partisan way, later that evening from 10pm. Finally, on 14 January 2009, the broadly pro-Israeli presenter David Prever was joined by the pro-Israeli Lorna Fitzsimmons discussing what they described as the lack of news headlines on Gaza.

Talksport argued that these examples demonstrated that, in common with many other issues, George Galloway finds himself on the opposite side of the argument to most of his fellow presenters on Talksport. It also said that George Galloway's brand of socialist views is unique in the radio industry in this country. Consequently, argued Talksport, his role as a presenter on the station is of itself a valuable contribution towards the Code's requirements for broadcasters to provide alternative voices and viewpoints.

Finally, in relation to the complaints concerning George Galloway's various requests to listeners to attend anti-Israeliprotest demonstrations, Talksport said that George Galloway did invite listeners to take part and apart from that, said nothing other than for people to peacefully protest. Talksport pointed out that the demonstrations were not illegal, having been agreed with by the police and George Galloway said nothing that would encourage racial hatred or violence.
 
Decision

Under the Communications Act 2003, broadcasters are required to treat all major matters of political or industrial policy with due impartiality. However, Ofcom must also take into account the broadcaster's and listeners' 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 broadcaster's right to freedom of expression is not absolute. In carrying out its duties, Ofcom must balance the right to freedom of expression on one hand, with the need to preserve "due impartiality" on matters relating to political or industrial controversy or matters relating to current public policy. Therefore, whilst any Ofcom licensee should have the freedom to discuss any controversial subject or include particular points of view in its programming, in doing so broadcasters must always comply with the Code.

Ofcom recognises that Section Five of the Code, which sets out how due impartiality must be preserved, acts to limit, to some extent, freedom of expression. This is because its application necessarily requires broadcasters to ensure that neither side of a debate relating to matters of political or industrial controversy and matters relating to current public policy is unduly favoured.

All of the complaints Ofcom received about George Galloway concerned the presenter's handling on the programme of the situation in Gaza between November 2008 and January 2009. It was not disputed that this issue was a "matter of major political controversy" under the Code and that the rules in Section Five were applicable, in particular Rules 5.11 and 5.12 which require due impartiality to be observed on major matters. Ofcom noted that many complainants objected to the concept of the programme itself – a well known politician being permitted regularly to promote his views on a national radio programme. However the Code permits presenters to express their own views on controversial issues so long as alternative views are adequately represented and regular presenters (such as George Galloway) do not promote their views in a way that compromises due impartiality. The Code also requires presenter phone-ins, like this one, to encourage and not exclude alternative views. In Ofcom's view it is of paramount importance that broadcasters and presenters continue to explore controversial subject matter even when, as here, opinion becomes polarised.

The approach to due impartiality
In assessing whether due impartiality has been preserved the Code explains that the approach may vary according to the nature of the subject, the type of programme and channel, the likely expectation of the audience as to content, and the extent to which the content and approach is signalled to the audience. As was pointed out by Talksport, the station is known for its highly opinionated presenters, such as George Galloway, who engage in heated debate with listeners. The profile of the Respect Party MP is also a relevant consideration when assessing whether the approach to due impartiality on these programmes was acceptable. He is recognised in this country for trenchant views on many issues and his sympathy for the Palestinian viewpoint in relation to the Middle East question is particularly well known. In the programme of 22 November 2008, George Galloway makes this clear when he says:

"I am not impartial on this subject, nor can I be…"
 
However, it is important that the subject matter itself is treated with due impartiality. Ofcom noted that the tension in Gaza at the time of these broadcasts was extremely high and had resulted in armed conflict by the time of the second programme under investigation (27 December 2009). This meant that the views of the presenter, the guests and the callers to the programmes could be expected to be outspoken, emotive and at times reproachful. Ofcom also noted Talksport's argument that, such was the strength of feeling about Israeli actions, the issue had effectively crossed party political lines. All of these considerations do not obviate the need for due impartiality however they demonstrate that the views espoused by George Galloway would not necessarily come as a surprise to listeners, familiar as they would be with his opinions and personality. Due impartiality does not require there to be an equal balance of views on the controversial subject matter being discussed. To secure compliance with the Code, what must be ensured is that firstly, there is a wide range of significant views and secondly, that these views are given due weight in each programme or in clearly linked and timely programmes (Rule 5.12).

Wide range of significant views

During the five programmes examined by Ofcom in this investigation there was a large volume of views expressed which were critical of Israeli government policy towards Gaza – in the programme of 22 November 2008 these views were critical of the Israeli blockade of Gaza then in place, and in the other programmes listeners criticised the Israeli military action in Gaza which had begun on 27 December 2008. On the programme of 22 November 2008 for example, guest Lauren Booth described the Israeli blockade of Gaza as:

"the most cruel siege in human history"

and on the same programme a caller remarked:

"I can't understand how they have the nerve to come on and defend Israel…they just tell lies."

Ofcom also noted that on the programme of 27 December 2008 calls which could be described as pro-Israeli were greatly outnumbered by calls which were critical of the Israeli position. Callers expressed anger and disgust at Israeli "aggression" and the attack which began that day was described as a "barbaric".

At the same time however Ofcom noted that in all programmes, George Galloway encouraged listeners with differing viewpoints to call in. He told listeners, for example on the programme of 2 January 2009 that:

"you're welcome whatever your point of view but you're especially welcome if you disagree with me…"

Bearing in mind the factors relating to the approach to due impartiality in this case described above, in Ofcom's view these differing views were brought to air with adequate frequency on all the programmes examined. On 27 December 2008 for example, one caller referred to Israel and asked:

"…do you not think a country has the right to defend itself when hundreds of rockets are coming over?"

Further, on 22 November 2008 there was a detailed interview with Lorna Fitzsimmons of the British Israeli Communications and Research Agency who responded articulately to many of the points raised earlier by George Galloway and Lauren Booth. She was also given the opportunity to defend the Israeli government. There were clearly other significant views expressed on the station throughout this period such as a journalist and the pro-Israeli Republican Samuel Joe Wurzelbarcher. Other examples, as cited by Talksport, demonstrated that the station had achieved on air a range of significant views on this issue.

Due Weight
Ofcom accepts that as a way of encouraging debate and generating interest in a subject, broadcasters may legitimately be controversial and challenging, even to the extent of taking a position where they "may express their own views" (see Rule 5.9 of the Code). However, broadcasters need to be careful in ensuring that this approach does not impinge on the Code's requirement to give "due weight" to other significant views. In its consideration of the programmes Ofcom was at times concerned that George Galloway did not necessarily afford callers who disagreed with him an adequate opportunity to present their argument and at times appeared to cut callers off who disagreed with him. For example on the programme of 22 November 2008 during a discussion with one caller about the origins of the conflict, George Galloway indicated that if the caller was not prepared to accept that Israel was "illegally occupying" territory that did not belong to it, there was "nothing further to talk about…" before cutting the caller off. Although other callers were given an appropriate opportunity, broadcasters need to strike the right balance between being provocative and ensuring compliance with the Code.

It is important to note however that the Code requirement for due weight may be met "within each programme or (Ofcom's emphasis) in clearly linked and timely programmes". In this case, while the views of some callers may not have been afforded due weight in specific programmes, it was Ofcom's view that overall, on the service, due weight was achieved through firstly the detailed interviews on George Galloway with recognisable commentators such as Lorna Fitzsimmons and The Times journalist Oliver Kamm who defended the Israeli government position. It was also met by programmes such as the edition of George Galloway of 30 December 2008, to which Ofcom was directed by Talksport. The programme began with George Galloway making a specific call for listeners who disagreed with him to call in. He said:

"…everyone knows where I'm coming from on this subject…but that doesn't mean I want to hog the microphone. On the contrary, I want an argument with you. So, please, if you have a different perspective from me, please call…"

George Galloway also signalled that a pro-Israeli journalist would be joining him at a certain point in the programme. Ofcom noted that when the sequence on Gaza began, three callers with a pro-Israeli perspective were brought to air in succession.

Finally Talksport directed us to material across the service, in the days and weeks in which the conflict continued in which alternative views were extensively canvassed. As a result Ofcom concluded that the due weight requirement of Rule 5.12 was met.

Calls to join demonstrations
A number of complainants highlighted George Galloway's support for and encouragement to listeners to attend demonstrations against Israeli actions planned for London and elsewhere. At various points the presenter said:

"...everyone of us has a duty. I will myself at 2 o'clock tomorrow afternoon be in the demonstration outside the Israeli embassy at Kensington Church Street, Kensington High Street in London at 2 o'clock tomorrow."

"...go to the 'Stop The War' coalition website, you'll get details of the local Stop The War organisation in the North-East and they definitely should be doing something."

"Well you can join me at 2 o'clock tomorrow afternoon outside the Israeli embassy in Kensington Church Street in London, for what I think is going to be a very big demonstration."

"I hope everyone who's in Scotland can reach George Square [Glasgow], is there at half four tomorrow afternoon."

"We'll be out at...[details of addresses and times of the demonstrations in London, Edinburgh, and Glasgow]... Stand up, stand up against the great crime that took place in Gaza today!"

We accept, as Talksport argues, that the presenter did not in any way encourage or incite hatred or violence.

However, in Ofcom's view, at these junctures the programme turned from debating points of views and opinions into active campaigning on a major matter of political controversy. The broadcaster was actively encouraging listeners to participate in a political activity with details of the events, addresses and times. These calls to action did not come from an interviewee (who was for instance a campaign organiser on the demonstration itself) but from the presenter himself. At this point, we consider, the broadcaster crossed the line from legitimate and provocative debate with adequate alternative views to one who was calling listeners to action. By actively becoming involved in one side of a campaign on a matter of political or industrial controversy this element of the programme failed to comply with the due impartiality requirements which are set out in legislation and in Ofcom's Code. 

Conclusion
Overall, for the reasons outlined in this decision, Ofcom concluded that there was an appropriately wide range of significant views aired on the station and on George Galloway during the period to which these complaints related. On balance Ofcom concluded that these views were also afforded due weight, particularly for example on the programmes of 22 November 2008 and 30 December 2008.

However, in encouraging listeners to attend demonstrations with details of dates, times and locations, the programme move away from legitimate debate and started to campaign on a major matter of controversy resulting in a breach of Rule 5.11.

Not in breach of Rule 5.12
In breach of Rule 5.11 (in respect of the calls to join demonstrations)

Footnotes:

  1.-As stated in Article 10 of the European Convention on Human Rights.

In Breach

Virgin Media Advertisement
Sci-Fi Channel, 31 January 2009, 15:00

Introduction

The Advertising Standards Authority ("ASA") received a complaint from a viewer about the sound levels of a Virgin advertisement broadcast on the Sci-Fi channel, which appeared to be much higher in volume than the advertisements scheduled adjacent to it. When the ASA tried to acquire a recording of the material the broadcaster stated that it did not have a recording of the broadcast featuring the spot advertising insert.

The ASA referred the complaint to Ofcom because the failure of a broadcaster to retain and supply a recording of its output is a breach of the broadcaster's licence.

Ofcom requested comments from the broadcaster under its Licence Condition 11 which requires broadcasters to retain recordings of their output for 60 days after transmission, and to provide Ofcom with any such material upon request.

Response

The broadcaster explained that the Virgin advertisement was inserted by Virgin Media into the Sci-Fi Channel broadcast feed after it had left the Sci-Fi channel's play-out centre, for the benefit of Virgin's own cable subscribers.

The Sci-Fi Channel argued that it had received contractual assurances from Virgin Media that its insertions into the broadcast feed would be fully compliant with regulatory requirements. However, the Sci-Fi Channel had not established its own technical facility to ensure the recording of the modified broadcast would be retained.

Virgin Media had now ceased inserting these spot advertisements and the Sci-Fi Channel would not recommence the scheduling of such advertisements without transmission recording facilities being in place.

The broadcaster fully accepted that as the licence holder it was obliged to keep and retain a recording of all material broadcast for a period of 60 days and apologised for the failure to retain a recording. Furthermore, it stated that it had reviewed procedures firstly, to ensure compliance with BCAP sound levels requirements, and secondly, to ensure the retention of recordings of all broadcast output – including advertisements which are inserted into the channel feed by third party affiliates.

Decision

All cable and satellite licensees are required to make and retain, or arrange for, the retention of a recording in sound and vision of every programme included in the Licensed Service for a period of 60 days. This recording must be available to Ofcom, as it was broadcast and of a quality as seen or heard by the viewer, whatever television platform it was transmitted on.

Ofcom noted the broadcaster's apology and its explanation that it had retained recordings of the broadcast feed but that a third party, that is Virgin Media, had inserted their advertisement over the play-out centre feed for the benefit of cable subscribers. It is however a requirement on the licensee to retain recordings of all of the versions of the content broadcast on whatever platform, including any content that has been modified, not on any third party affiliate who inserts content onto the original feed. All licensees therefore need to be satisfied that where this situation might occur suitable facilities or arrangements are in place to ensure recordings are made and retained.

As the Sci-Fi Channel has accepted that they did not have a technical facility in place, to ensure that a recording of the modified broadcast, the broadcaster has breached one of its licence conditions. This is a serious and significant breach of the Sci-Fi Channel licence and will be held on record.

Breach of Licence Condition 11

Not in Breach

Jeni Barnett
LBC 97.3 FM, 7 January 2009, 14:00

Introduction

LBC 97.3 FM ("LBC") is a local speech based commercial radio service which broadcasts across Greater London. Ofcom received 190 complaints regarding a discussion about a parent's right to not give their child the Measles, Mumps and Rubella ("MMR") vaccination, on the weekday afternoon phone-in discussion programme presented by Jeni Barnett.

The complainants expressed concern about the way in which Jeni Barnett presented and handled the phone-in discussion on this topic. In their view the programme gave such an unbalanced, inaccurate and irresponsible portrayal of the dangers of the triple MMR vaccine that it could have caused considerable anxiety to parents. This in their view could reduce the take up of the vaccination resulting in a considerable threat to public health.

Ofcom asked LBC to comment with reference to the following Code Rules:

  • 2.2 – factual programmes or items or portrayals of factual matters must not materially mislead the audience; and
  • 5.13 – local radio services must not give undue prominence to the views and opinions of particular persons or bodies on matters of political or industrial controversy and matters relating to current public policy in all the programmes included in any service taken as a whole.

Ofcom was of the view that the MMR vaccination could be considered a matter relating to current public policy given that it is part of the Government recommended childhood vaccination schedule.

Response

LBC responded that the debate on the right to choose the MMR vaccination was based upon presenter opinion, as was much of LBC's output. Indeed, the focus of this discussion was based on Jeni Barnett's own personal experience as a mother - who had chosen not to give her daughter the triple MMR vaccine – and the right for her to make this choice for her child without being criticised for it.

From the outset of the programme, the broadcaster argued that Jeni Barnett made clear that she was not an expert herself and that this programme was focused on the notion of informed parental choice, not about whether immunisation was good or bad. Furthermore, the presenter had invited experts, as well as parents who had refused the vaccination, to call in and had advised against scaremongering. In conclusion, they argued that the programme did not "stray into the bounds of providing factual information that mislead listeners" and did not breach Rule 2.2.

With reference to Rule 5.13, the broadcaster stated that given the nature of LBC's output, the vast majority of its content would in some way be related to government policy and therefore fell within the bounds of "current public policy". In their view however, the Code provided scope for presenters to express their own opinions thereby stimulating debate, provided that a fair opportunity for comment was offered.
The phone-in format of the programme afforded this facility.

In this particular programme Jeni Barnett received six callers to the programme, four of whom presented opposing views to her. Indeed, the second caller actually pointed out that he was a regular listener and that every medical expert he had heard on LBC discussing the issue of MMR had said it was "a good thing" and the evidence against it had been refuted.

Overall these points demonstrated that the broadcaster had not only provided balance in this broadcast but also across its output. Given that Rule 5.13 defined undue prominence as a "significant imbalance of views" the broadcaster stated that this programme did not reach this level of imbalance and was therefore not in breach of this rule.

Decision

The Communications Act 2003 places a statutory duty on Ofcom to ensure that broadcasters apply generally accepted standards so that the public is adequately protected from harmful material. In applying this rule Ofcom must ensure an appropriate level of freedom of expression as set out in Article 10 of the European Convention on Human Rights. This is in terms of both the broadcaster's right to impart information and ideas and the audience's right to receive them.

Ofcom must therefore seek an appropriate balance between ensuring members of the public are protected from material which may be considered harmful on the one hand and the broadcaster's right to freedom of expression on the other.

As the complainants expressed concern, that the programme misleadingly suggested that the MMR vaccine was dangerous, thereby suggesting to parents that immunisation was not recommended nor a necessity, we firstly considered the programme with specific reference to Rule 2.2. This rule relates to protecting the public from material which may be harmful, by requiring the broadcaster to ensure that the portrayal of factual matters does not materially mislead the audience.

Rule 2.2
With reference to this rule Ofcom considered if the programme had given the overall impression to listeners that the MMR vaccine was dangerous and unnecessary and whether material harm might have been caused to the public as a result.

Ofcom acknowledges that the focus of the debate was intended to be about a parent's right to choose, based upon an informed decision, whether to have their child immunised. The presenter set out this argument clearly at the outset of the programme, recounting her personal experience when she chose not to immunise her daughter and with comments such as:

"…if as a human being you decide you do not want to give your child a vaccination, you should in a democracy, have the right to say no."

Furthermore, Jeni Barnett restated this argument several times during the course of the hour long programme with statements such as:

"I want you to tell me why you think we have to have this measles jab.."
 "It's not my job to say to people 'don't do it' it's not my job to do any of that. But you're allowed to have your say."

"You've got to make an informed decision – your children will not be the same as anyone else's."

As Jeni Barnett had clearly set out her personal position at the start of the programme it was not unexpected that she would endorse the statements and motives of two mothers who had also elected not to immunise some, or all, of their children. Consequently the callers did make a number of unchallenged statements that suggested the MMR vaccination and immunisations in general were simply not necessary and could be dangerous to a child's health.

For example, the first caller made the comments:

"It must be wrong to be putting toxins and poisonous material into a young baby's body…live viruses that are cured in monkey's kidneys. How can that be the right thing to do?"

And:

"I just think vaccination is a total abuse of the immune system."

The other caller said :

"he [her son]...had the MMR, and then when he was three he was diagnosed with autism…my paediatrician was quite sure that it was the cause of the autism."

And:

"I would never recommend having my children vaccinated…all my children who have never been vaccinated have been very very healthy."

Also Jeni Barnett did not question the text messages and emails she received during the programme which put forward a similar anti-immunisation or MMR position, such as:

"…as well as not being a hundred per cent effective, they also contain cancer causing agents."

  "…gave my son MMR and then watched him shut down for a week as autism took hold…I live with guilt."

"It's all Government spin children don't need the triple jab."

In considering Rule 2.2, however, our decision was not based on whether the presenter should have challenged the callers or whether she should have exercised more caution in reading out texts and emails. Rather, it was based on whether, taken as a whole, the content of the programme would have left listeners with the overall impression that the MMR jab was dangerous thereby influencing parents not to immunise their children.

Ofcom is of the view that, on balance, the programme did include sufficient and important opposing arguments to inform listeners of the case for immunisation and so served to dispel concerns about the dangers of the vaccine and ensure overall that the information was not materially misleading or harmful.

Indeed four of the six callers given air-time during the hour long programme presented an opposing view to Jeni Barnett. Importantly, two of these four callers were health professionals, a GP and a nurse, who drew upon their experience of working closely with young children and the Government recommended immunisation schedule. The doctor in particular was given a considerable amount of air time, largely uninterrupted by the presenter, to explain the rationale for the MMR immunisation programme and the reasons why it was important to eradicate measles:

"All you need to do is meet one family whose normal child - they took the decision not to vaccinate their child - and they got measles and they got a devastating complication such as inflammation of the brain…or they died, and your opinion changes."

"Measles is the one that can really does kill…it's just because the numbers in Western Europe and the States and Australia are lower that we don't see this so often."

In addition the nurse criticised Jeni Barnett several times for being "irresponsible" and made comments such as:

"You should think about what you are doing on this programme. You are doing a lot of damage."

She also presented the rationale for a national immunisation schedule:

"If you deny immunisation then you are denying health to your child and other children."

Another caller reprimanded Jeni Barnett for reading out an anonymous email saying that vaccines contained "cancer causing agents" (see above) because it would "scare new mothers" and it was irresponsible to read out such a statement without the name of the person who had sent in the email. A further caller stated that all the medical experts he had heard on LBC previously had rejected the arguments against the MMR vaccine.

Further, on at least two occasions Jeni Barnett herself looked to redress the balance by commenting:

"…there isn't a definitive answer. There is no absolute answer" and "as a parent you have to make a decision based on your own family history".

Broadcasters must exercise extreme caution when dealing with issues of public health where misinformation or misleading impression could cause actual or potential damage.  It is extremely important that while broadcasters exercise their freedom of expression, they must ensure that any potentially harmful material is fully put in context.  Broadcaster understandably wish to reflect discussions and debates that are taking place across the country, but in doing so, in areas of public health, they must not ignore the prevailing medical advice. In particular, while maintaining the right to freedom of expression, broadcasters need to be responsible and be aware of giving air to unfounded or unscientific views on matters of public health which may carry some weight. 
At times, it appeared that during this broadcast the presenter relied upon her anecdotal experience and was not adequately briefed on the wider public health issues and prevailing medical advice which this debate would undoubtedly also touch upon. For example, at times the schedule of other childhood immunisations were confused with the MMR triple vaccine schedule, and no reference at all was made to any current research contesting a link between autism and the MMR vaccine yet several anecdotal references were made supporting a link. Whilst this did not mean that the programme overall was materially misleading, and was therefore not in breach of Rule 2.2, in Ofcom's opinion that it would have been preferable for the programme to have made some significant points clearer to listeners.

In conclusion, however, Ofcom is of the view that on balance there were sufficient opposing arguments and challenges from contributors, including health professionals, to present the case for immunisation and that listeners would not have been materially misled by this broadcast. Therefore, Rule 2.2 was not breached.

Rule 5.13
Rule 5.13 states that: "Broadcasters should not give undue prominence to the views and opinions of particular persons or bodies on matters of political or industrial controversy and matters relating to current public policy in all the programmes included in any service taken as a whole."

Some complainants expressed concern that the way in which Jeni Barnett presented the discussion was not balanced and resulted in undue prominence of the anti-MMR position. We assessed these concerns with reference to Rule 5.13.

Rule 5.13 prohibits undue prominence being given to particular views on matters relating to current public policy on a local radio service such as LBC in the context of its output overall. Given that the very nature of speech based local radio services is to debate matters of interest to listeners within a certain locale, which inevitably may relate to current public policy, this requirement for impartiality for the local radio broadcaster is slightly different to that applied to broadcasters with national coverage.

Firstly, legislation in this area, which is therefore reflected in the rules in the Code, requires local radio stations to ensure that no undue prominence is given to views, on controversial matters.  This is a separate and different concept to the requirement of due impartiality.  Secondly, as Rule 5.13 makes clear, for this rule to be breached the broadcaster would have to demonstrate a " significant [Ofcom's emphasis] imbalance of views aired" across " all [Ofcom's emphasis] programming on a service dealing with the same or related issue within an appropriate period."

In contrast, the rule of due impartiality for national radio broadcasters must be achieved within a programme or more than one programme of the same series only.

As set out above when considering Rule 2.2, Ofcom was of the opinion that the programme itself provided a balance of views which were both in support of, and also opposed to, the MMR vaccine and the immunisation schedule for children. Therefore Ofcom considered that across the programme there was not a significant imbalance of the views aired.

In conclusion, it is Ofcom's view that the programme itself provided enough views to ensure that the programme provided balance overall and, therefore, no undue prominence and no breach of Rule 5.13.

Ofcom recognises that it is important for broadcasters to bring discussions about medical matters to an audience, and, that broadcasters should have the editorial freedom to present such matters as they wish provided that they comply with the Code. However, it is Ofcom's view that broadcasters should exercise caution when dealing with medical matters where the issues are as controversial and scientifically based as the MMR vaccination. Whilst the broadcaster stated that the focus of this programme was about parental choice, not whether the MMR immunisation was good or bad, it was inevitable that such a discussion would evaluate the merits of immunisation or otherwise the issue of choice would not be relevant at all.  Where such arguments are based on an understanding of the science and medicine, broadcasters should be aware of the potential dangers of causing harm.

It is also Ofcom's view that the notion of avoiding undue prominence may include the presenter, as appropriate, paying due respect to callers putting forward a view with which he or she disagrees. For example, in this case the contributions of the two mothers who had not immunised their children were positively endorsed and appreciated by the presenter with comments such as "This is fascinating" and "Fantastic…I know I shouldn't be biased…" In comparison, Jeni Barnett's treatment of the nurse who criticised her handling of the topic was at times dismissive and impatient. In the context of Rule 5.13 therefore, broadcasters are advised to ensure that overall the tone towards, and treatment of, callers does not leave listeners with the impression that one particular view on a matter of political controversy or a matter relating to current public policy, is being given undue prominence.

Not in Breach of Rules 2.2 and 5.13

Not In Breach

Dispatches: The Trouble With Boris
Channel 4, 30 March 2009, 20:00

Introduction

This edition of the Dispatches investigative current affairs programme examined Boris Johnson's record since becoming Mayor of London in May 2008 and questioned his performance during his first year in office. It referred to the Mayor's policies on issues such as transport and the environment and questioned whether the Mayor had a coherent plan for London. The programme also looked at various high level resignations by senior members of the Mayor's team and questioned the Mayor's relationship with certain business figures, including the owners of The Telegraph newspaper for which the Mayor writes a weekly column. The programme included the views of a number of contributors and also included extracts from interviews with Boris Johnson and speeches made by him.

Ofcom received 18 complaints about the programme. Viewers considered that the programme made allegations about Boris Johnson which were unfair and that it was not presented with due impartiality.

In relation to fairness, Ofcom can only consider and adjudicate on complaints of unfairness when they have been brought by the "person affected" (or someone on their behalf).. Ofcom has received no complaint from Boris Johnson (or from anyone authorised by him).  

In relation to the concerns about impartiality, there is a requirement for broadcasters to maintain 'due impartiality' when dealing with matters of political or industrial controversy or relating to current public policy. Ofcom considered that this edition of Dispatches did, on several occasions deal with matters of political controversy and/or matters relating to current public policy. For example, there was discussion of London's transport policy, including reference to the Congestion Charging Zone. The programme also included sequences on Olympic funding, London's Low Emission Zone, Housing Policy, Planning Policy, the management of the Metropolitan Police and the proposed expansion of Heathrow.

Therefore, in relation to these controversial matters, Channel 4 was required to ensure that they were treated with due impartiality in accordance with Section Five of the Code. In particular:

  • Rule 5.5, which states that "…due impartiality on matters of political or industrial controversy and matters relating to current public policy must be preserved…"; and
  • Rule 5.9, which states that "…presenters and reporters…may express their own views on matters of political or industrial controversy or matters relating to current public policy. However, alternative viewpoints must be adequately represented either in the programme, or in a series of programmes taken as a whole…"

Decision

In considering whether a programme such as Dispatches: The Trouble With Boris breaches the Code, Ofcom must exercise its duties in a way which is compatible with Article 10 of the European Convention of Human Rights. This protects the right to freedom of expression. This right encompasses the right to hold opinions and to receive and impart information and ideas without interference by public authority. Applied to broadcasting, Article 10 therefore protects the broadcaster's right to transmit material as well as the audience's right to receive it, as long as the broadcaster ensures compliance with the Rules of the Code as well as the law.

In addition, when reaching its decision in this case, Ofcom bore in mind that investigative journalism plays an essential role in public service broadcasting and is in the public interest. It is of paramount importance that broadcasters such as Channel 4 continue to explore controversial subject matter even where the broadcast of such material polarises opinion and results in complaints to Ofcom. In making investigative programmes, broadcasters must take care however to ensure that the material broadcast is in accordance with the Code. For instance matters of political controversy and matters of current public policy must be treated with due impartiality. The Code explains that " due" is an important qualification to the concept of impartiality. While impartiality itself means not favouring one side over another, "due" means adequate or appropriate to the subject and nature of the programme. The result is that an equal division of time does not have to be given to every view, nor does every argument have to be represented.

Having considered the programme's treatment of those matters to which the requirement of due impartiality applied, Ofcom concluded that overall due impartiality was maintained. There were a number of reasons for this.

The programme began with footage of Boris Johnson addressing a crowd shortly after becoming mayor. He says:

"…that's my pledge to London folks, a safer, greener, fairer city…"

The presenter then makes the editorial thrust of the programme clear with the following:

"…he's funny, charming and unconventional but, with the nation's capital in the grip of a financial crisis, has Mayor Boris got the vision to bring London forward?"

While the programme certainly goes on to level criticisms at Boris Johnson, the alternative viewpoints required by the Code were also apparent. Within the opening five minutes of the programme there is an interview with Mr Johnson in which he outlines what he hopes to achieve by the end of his first term in office. In respect of the other controversial issues discussed in the programme, the views of the Mayor are also demonstrated.

These views are set out by means of footage from Boris Johnson's speeches both before and after his election and by extracts of his appearances at Mayor's Question Time at the London Assembly. At times too, the presenter explains the Mayor's position. For example, we are told that the Mayor is scrapping the Western extension to the London Congestion Charge Zone. On the one hand the presenter notes this will result in 30,000 more cars entering the area but he then goes on to explain that the Mayor is adopting this policy in order to "help traders and small business" and goes on to state that the Mayor "is committed to cutting carbon emissions in other ways".

Viewers were also informed that the Mayor is suspending the latest phase in the Low Emission Zone. Although one interviewee tells the presenter that such a zone is the best policy for tackling air pollution from vehicles, the viewer is then informed by the presenter that the Mayor's reason for this suspension is because of the Low Emission Zone's "detrimental impact on small businesses", and the presenter adds that the Mayor has a range of other strategies "to improve London's air, including opposing the expansion of Heathrow".

Footage is also shown of the Mayor defending his housing policy. The programme explains that this policy has seen the Mayor accused of moulding his housing strategy for political advantage. The Mayor however is seen telling the Assembly that his team has been "extremely successful in our negotiations with boroughs across London in producing a fantastic commitment to affordable housing in incredibly difficult circumstances". The presenter also states "Boris told us at no time was consideration given to the political leadership of a borough" (in the context of the Mayor's housing policy).

In conclusion, Ofcom found that the nature of this programme was clearly signalled by its title, "The Trouble With Boris" and there is no doubt that it included a number of critical observations about Boris Johnson's performance as Mayor of London and his policies. However, to comply with the Code's requirement of "due impartiality," in making these observations the programme makers were not obliged to present every facet of every argument. In the circumstances of this programme in Ofcom's opinion sufficient "alternative views" were presented in such a way that the programme was not in breach of the Code.

Not in Breach of Rules 5.5 and 5.9

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