Broadcast Bulletin Issue number 139 - 03/08/09

Comment & The Real Deal, Radio Asian Fever, CricketAM, SoccerAM, Free-to-view promotion for Playboy TV, Stonecold TV, Snoop Dogg’s Fatherhood, Trailer for ‘Black’, It Pays to Watch, Complaints by The Viscount Monckton of Brenchley, Professor Timothy Ball, community of Middlesbrough and by Middlesbrough Council made on their behalf by the Mayor of Middlesbrough, Mr Ray Mallon, Booker Limited, Mr Terry Barnes, Mr Billy Johnston & Mr Jason Smith made on his behalf by Mr Trevor Jones

Standards cases

In Breach

Comment & The Real Deal
Press TV, January 2009, Various dates and times

Introduction

Press TV is an Iranian international news network, which broadcasts in English. Press TV have explained to Ofcom that it receives funding from advertising revenue; Iranian tax-payers; sales from services provided in respect of the technical and engineering industry; and sales from its archives.

The Respect Party MP, George Galloway, presents two sixty minute long programmes on the channel:

Comment, a weekly phone-in programme, starting at 20:30, in which viewers can contribute by telephone, email and SMS text on issues of interest in the news; and
The Real Deal, a weekly current affairs programme, starting at 19:00 that includes interviews in the studio and by telephone.

During January 2009, whilst the Israeli armed forces were present in the Gaza strip, Ofcom received four complaints from viewers about three programmes:

Comment broadcast on 8 January 2009 (“the 8 January Comment”);
Comment broadcast on 15 January 2009 (“the 15 January Comment”); and
The Real Deal broadcast on 18 January 2009 (“the 18 January Real Deal”).

Complainants considered that these programmes were biased against Israel, when dealing with the issue of the Israeli military presence in Gaza. During its investigation, Ofcom also viewed and had concerns about a fourth programme, an edition of Comment broadcast on 23 January 2009 (“the 23 January Comment”).

These three editions of Comment were exclusively devoted to the subject of Gaza. During these programmes, George Galloway interacted with the audience in two ways: he answered telephone calls live; and he read out and commented on emails and SMS texts received from viewers, which were displayed on a Comment Wall in the studio. The emails and texts from viewers also appeared on rolling graphics that were shown on screen during the programmes.

The 18 January Real Deal was a current affairs programme, which, in addition to the issue of Gaza,dealt with a number of subjects, but principally: the gas dispute between Russia and the Ukraine; and the proposed new runway at Heathrow airport. The editorial approach taken by the programme was indicated by George Galloway, in his introduction to the programme, when he said:

“ Bringing you the news and views you just won’t find in the corporate media”.

In the section of the programme that discussed Gaza George Galloway conducted a live studio interview with the Palestinian author, Ahmed Masoud. In addition, there was a telephone contribution from the American investigative reporter, Jeff Steinberg, who gave his perspective on alleged US involvement in Israeli Government policy towards Gaza.

Complainants considered that these four programmes (“the Programmes”), variously: failed to put both sides of the argument in relation to the situation in Gaza; constituted Iranian propaganda; and that George Galloway in particular did not conduct a balanced discussion on the issue of Gaza.

Ofcom wrote to Press TV, concerning the Programmes, asking for its comments under Rules 5.11 and 5.12:

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 making the service 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

Press TV maintained that all the Programmes complied with the rules on impartiality in Section 5 of the Code, and it highlighted how it had included sufficient alternative views within the Programmes. Examples are set out below.

Comment

Comment is a “phone-in” programme, and according to Press TV “it allows absolutely anyone to openly express their views and opinion” by telephone, email or SMS text. George Galloway encouraged viewers of all opinions to contribute to these programmes. For example, during the 15 January Comment he said:

“We want to see your name up here in lights, whether you agree with us or not.”

The broadcaster added that Comment should be regarded as a series of clearly linked and timely programmes “as it covers so many subjects, but many issues are debated repeatedly, which gives viewers a number of chances to respond”.

In particular, Press TV maintained that Comment is a “personal view” programme, where the identity of the presenter was of paramount importance. In the broadcaster’s opinion, the audience is made aware that Comment is “a programme of opinion”. In addition, Comment is an hour-long programme “which gives plenty of time for anyone to contribute”. Further, viewers are able to leave telephone voice messages at any time, in between weekly editions of Comment, so as to express their opinions to the programme.

Concerning the various statements made by George Galloway against Israeli policy and its activities in Gaza, Press TV made the following points:

George Galloway was expressing his opinion and many people agreed with him. For example, if viewers disagreed with George Galloway’s stated view that Israel had committed “war crimes”, Press TV said that “we allow people to contribute to the show who believe that Israel has not committed a war crime. However, the number of people who believe the latter is only a small percentage, and therefore the contributions to the show reflect that”;
similarly, George Galloway expressed his view that Israel was guilty of: “murder[ing] United Nations employees”, based on news reports that Israeli airstrikes had caused the deaths of two UN agency employees. Press TV said this had resulted in the suspension of food delivery operations by that agency in Gaza. The broadcaster added that the use of the word “murder” in this case was in the context that Israel had been aware of the UN agency operating in Gaza “yet [Israel’s] forces attack the same specified location, not on one occasion, but on several occasions, and ends up killing UN personnel, [which] is an act of murder”. Press TV added that “it would be unreasonable to consider the use of the term “murder” as being partial, particularly when the daily context was such that Israel were ignoring calls for reducing its aggression on so many occasions”;
the broadcaster highlighted an example of an email contribution from one viewer who asked “ Why should Israel not protect itself?” In response, George Galloway said that Israel’s attack on Gaza was “ a funny way” of protecting itself by “ slaughtering women and children by the hundreds in just two weeks”. According to Press TV, this showed that “viewers hear both sides of the account whereby one person has argued the need for Israel to defend itself and the other has questioned the manner in which Israel protects itself when so many civilians get killed”; and
another email from a viewer said “Stop disgracing yourself. Israel has millions of enemies. Stop killing our soul, George. Accept the reality. We are being attacked everyday”. George Galloway replied by encouraging the viewer to ring in so that he could hear her view in more detail.

The Real Deal

Concerning the 18 January Real Deal, Press TV made a number of points:

George Galloway referred to a parliamentary debate in which he participated, and where he was in the clear minority on the issue of Gaza. According to Press TV, this clarified to viewers that the issue of Gaza was “not a one-sided subject, but is one that has different angles and can attract various points of view”;
in his interview with the Palestinian author, Ahmed Masoud, whose life had been affected by Israel’s actions, according to Press TV it “would have been insensitive for George Galloway to tackle the Israeli line against his guest”;
the programme included a telephone interview with the investigative reporter, Jeff Steinberg. The latter was invited “to explain to viewers the Israeli perspective”. This interview highlighted Israel’s perspective on Iran, Hezbollah and Hamas and Israel’s “objective to reduce the threat from such organisations, and in particular, to exterminate Hamas”. In this way, the broadcaster said “the viewers [were] therefore given Israel’s perception of the threat and can therefore make up their own minds about how Israel should deal with such a threat”; and
when George Galloway referred to “ethnic cleansing” , Press TV said that he talked about the: “ethnic cleansing of the Palestinian people from Southern Palestine into Gaza”. In this way, the viewers understand the use of the term “ethnic cleansing” as the transfer of a people from one area into the next.

Decision

Under the Communications Act 2003, and therefore the Code, due impartiality must be preserved by broadcasters in all major matters of political or industrial policy. In dealing with these major matters broadcasters must include an appropriately wide range of significant views.

When interpreting due impartiality, Ofcom must take into account the broadcaster’s and viewers’ 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-). However, 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 also 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.

The three editions of Comment considered in this case dealt almost exclusively with the subject of the Israeli military presence in Gaza. Further, a substantial portion of the 18 January Real Deal also dealt with the issue of Israel’s presence in Gaza. This is not surprising given that the latter was a major international news story at the time of broadcast . Given the large amount of media and political attention and debate about the Israeli armed forces’ activities in the Gaza strip during early 2009, in Ofcom’s opinion, the Programmes dealt with a matter of major political controversy and Rules 5.11 and 5.12 were applicable.

In assessing whether due impartiality has been applied, the term “due” is important. Under the Code, it means adequate or appropriate to the subject and nature of the programme. Therefore, “due impartiality” does not mean an equal division of time has to be given to every view, or that every argument and every facet of every argument has to be represented. Due impartiality may be preserved in a number of ways and it is an editorial decision for the broadcaster as to how it ensures due impartiality is maintained.

In this case, George Galloway (a politician, well-known for his views opposing many policies and positions of the state of Israel), was presenting both a ‘phone-in’ and ’authored‘ programme ( Comment), and a general interview-led current affairs programme ( The Real Deal). All these broadcasts were clearly branded around the personality and views of George Galloway. Rule 5.9 of the Code makes clear the principle that presenters may express their own views on controversial matters provided alternative viewpoints are adequately represented and due impartiality is maintained.

Taking the Programmes as a whole, Ofcom noted that there were some but extremely limited (see below) contributions that could be labelled as being broadly supportive of the actions of the Israeli state in Gaza during January 2009. It should be noted that where a matter of major political controversy is being discussed – as here – Rule 5.12 applies and the broadcaster must ensure that “an appropriately wide range of significant views must be included and given due weight in each programme or in clearly linked and timely programmes”. This is especially important where a presenter is known to have strongly held views on the subject being discussed in the programme and clearly makes his position clear throughout the programme.

Ofcom separately considered: firstly, the three editions of Comment; and second, the 18 January Real Deal.

Three editions of Comment

Ofcom recognises that the approach to maintaining due impartiality may vary according to the subject, the type of programme and channel, and the likely expectation of the audience. However, broadcasters must ensure that when covering a matter of major political controversy, they include both a wide range of significant views and ensure that these are given due weight. How broadcasters achieve due impartiality is an editorial decision for them.

Since in this case Press TV could not point to any “clearly linked and timely programmes” on its service dealing with the issue of Gaza, the main question for Ofcom was whether “an appropriately wide range of significant views” were included and “given due weight” in the programmes complained of.

This programme consisted of George Galloway alone in a studio talking directly to camera. This was punctuated with telephone calls and emails or SMS text messages leaving George Galloway to respond. In the main, these were one hour programmes with George Galloway talking entirely about his views.

The presenter would take short telephone calls from viewers where generally, the caller was permitted to make a comment which would then be followed by the presenter giving an address to camera on the issue raised. There were also a number of texts and emails, read out by the presenter – which were short, being around a maximum of one or two sentences in length.

Wide range of significant views

The overwhelming majority of the content of the programmes were from a pro-Palestinian point of view and were highly critical of Israeli policy. The presenter spoke from an entirely pro-Palestinian point of view. There was not one telephone call from a pro-Israeli position in any of the programmes and only the most limited and short text or email messages from viewers from a pro-Israeli position.

In the programme, George Galloway variously labelled Israel as committing: “murder”; “apartheid-style occupation”; “murder [of] UN employees ”; and a “war crime”.

As previously stated the majority of the programme contained George Galloway speaking directly to camera. He expressed his strong opposition to the actions of the Israeli State in Gaza, and in particular the tactics used by the Israeli military. He defended the activities of Hamas (which was elected to govern in Gaza), including its tactic of launching rockets against Israeli targets.

Further examples of comments by the presenter in the programmes included:

8 January Comment

“Collectively punishing people is a Nazi tactic.”

The Palestinians were under the “iron heel of a brutal apartheid-style occupation.”

“Which other country could murder United Nations employees?”

15 January Comment

“It is a war crime. It is a scandal of the greatest proportions.”

23 January Comment

“We’re discovering the war crimes and the mass graves of Palestine.”

Ofcom recognises that some people may strongly object to such views. However, the Code does not prohibit broadcasters from including such strongly-held views. However, in order to ensure compliance with Rule 5.12, it is not enough for a broadcaster either just to include some limited viewpoints that could be portrayed as representing an alternative (minority) “significant view” on an issue, or to allude to the existence of such views. An “appropriately wide range of significant views” must be included.

Ofcom considered that Press TV had not directed Ofcom to how the broadcaster had ensured there had been an “appropriately wide range of significant [Ofcom’s emphasis] views” included in the editions of Comment, or in clearly-linked or timely programmes. As such, the viewpoint of the Israeli state was not adequately represented within any of the editions of Comment. In this way, viewers were not adequately furnished with opinions as to how the situation in Gaza during January 2009, and its lead up, was perceived from the viewpoint of Israeli position (official or otherwise).

Due weight

Ofcom also considered whether, within the editions of Comment, Press TV had ensured that any expression of a “wide range of significant views” were given “due weight”. In this regard, Ofcom noted that the contributions from what could be broadly labelled as being pro-Israeli, were extremely limited. The presenter, George Galloway, treated such contributions in a different way to the manner in which he treated contributions which could be labelled as being from a pro-Palestinian perspective. Alternative views in these programmes were not debated and/or discussed but dismissed and used as a further opportunity for the presenter to put forward his views. For example:

8 January Comment

Email read out: “Iran is being very cheeky here George, you must admit this. It uses its local allies very smoothly. Why has the world kept silent?”

George Galloway: “That’s a barely literate message, Carl, but if I can attempt to interpret it, let me tell you this: Iran is standing up for the Arab Muslim people in Palestine. If the Arab Muslim leaders were doing as a much as Iran is doing to come to the aid of the Palestinian people, they wouldn’t be in the bloody mess that they are in. So save your sneaky little messages. Put them in your pipe and smoke them.”

And in the same programme:

Email (from a listener “George, why do Hamas use human shields? Israel is to
in Los Angeles) blame? Don’t think so.”
read out:

George Galloway: “Well again, I don’t know if your name really is Mohsen out there in Los Angeles. I rather doubt that it is. But you know, a million and a half Palestinians are crammed in the tiny space of the Gaza strip – one of the most densely populated places on the earth. There is no need for human shields. There is nowhere for anyone to go. There is no space. They are crammed there, cheek by jowl. The fighters and the people are crammed together. Please don’t fall for this kind of Israeli propaganda, Mohsen – if your name is Mohsen, which I doubt.”

15 January Comment

Email read out: “Why is it that all the terrorist organisations in the world have Islamic affiliations?...Don’t you think the world would have been better if not for Islam?”

George Galloway: “That’s just about the most ignorant and foolish email I have ever seen in my life. I can’t believe a sentient being like you, with the ability to work a computer could write such rubbish. The real terrorists in the world today are: Israel; the Israeli armed forces; and the United States of America; and the other governments that, either, are supplying them with arms - like the British Government – that are allowing them to carry out this massacre in Gaza, or the Arab regimes that are collaborating with them.”

23 January Comment

SMS text (from a “Do you know that Goliath of old originates from Gaza. This
listener in Africa) means that it’s the Gazans who are terrorising Israel.”
read out:

George Galloway: “No it doesn’t and you oughtn’t to take too literal an attitude to the Old Testament, my dear. The ‘David’ in this picture is definitely the Palestinians, and the ‘Goliath’ in this picture is definitely Israel, as anyone with eyes to see – and I know there are some eyeless in Gaza now, and eyeless, it appears, in Africa too.”

Ofcom considered that within the three editions of Comment, there were very few and limited contributions included in the programme that could be portrayed as being pro-Israeli, and in particular contrary to the views being expressed by George Galloway. This meant that within these programmes, a very small proportion of the airtime was given over to points of view that could be seen as critical of the Palestinian position or in favour of the Israeli Government.

Ofcom considered that in dealing with these contributions, the broadcasters failed to give “due weight” to alternative views. Further, the broadcaster failed to engage or debate with such points of view which were contrary to the programme’s own position. Rather, Ofcom considered that George Galloway used such opinions contrary to his own, only as vehicles to punctuate what could be classed as a form of on-going political polemic, delivered by the presenter directly to camera and unchallenged.

Broadcasters are free to include controversial presenters, with particular points of view on certain subjects. Further, when dealing with a matter of major political or industrial controversy or a major matter relating to current public policy, presenters are not required equally to agree or support all viewpoints on an issue. Ofcom recognises that this would be an unacceptable restriction on the broadcaster’s right to freedom of expression. However, the Code requires that when certain “matters of major political controversy” are discussed not only must an “appropriately wide range of significant views” be represented, these views must be given “due weight.” “Due weight” must be judged in light of all the relevant circumstances, which include not only the length and prominence with which the significant view is presented but the tone, manner and the seriousness with which it is treated. Broadcasters must therefore ensure that, as appropriate and necessary, expressions of alternative “significant views” should be presented.

In audience participation programmes, such as Comment, where viewers or listeners are encouraged to telephone, email, text or otherwise contribute to the programme, and interview programmes, including a range of contributors, it is not the case that broadcasters have to ensure an equal number of points of view are featured. It also has to be recognised that while broadcasters can encourage callers from different perspectives, it cannot ‘manufacture’ them. However, it is the responsibility of the broadcaster to ensure that due impartiality is maintained. Therefore, in the situation where: a matter of major political or industrial controversy or major matter relating to current public policy is being covered in a programme; a controversial presenter with strongly-held views is setting out his views on that subject within a programme; and that there are few, if any, views being expressed in opposition to the presenter’s view, for example in an audience participation programme such as this, then broadcasters must have systems in place to ensure that due impartiality is maintained. For example, in such cases, if a presenter or broadcaster is aware that they are receiving few audience interventions from an alternative point of view, they could consider: summarising, within the programme, what that alternative point of view is; having available interviewees to express alternative views; or challenging those audience interventions they are receiving, more critically. However, ultimately, how due impartiality is maintained is an editorial matter for the broadcaster.

18 January Real Deal

The Real Deal is a current affairs programme, in which George Galloway discusses issues of interest in the news. The style of the programme is principally that of the presenter addressing the camera, with occasional interviews in the studio and by telephone. In the 18 January Real Deal, George Galloway conducted: an interview in the studio with an Ukranian-born journalist, concerning the gas dispute between Russia and the Ukraine; and an interview by telephone with a Greenpeace representative, concerning a proposed new runway at Heathrow airport. In addition, about a third of the programme was devoted to the issue of the situation in Gaza. In this section of the programme, as well as giving his own views to camera about the situation in Gaza, George Galloway conducted: an interview in the studio with a Palestinian writer, Ahmed Masoud; and an interview by telephone with a journalist, Jeff Steinberg, who was giving his interpretation of the effects of US Government policy on the actions of the Israeli Government.

Ofcom noted that the programme included a number of statements that were critical of the Israeli Government’s actions in Gaza. For example, at different times, George Galloway said the following:

“ It has been the deliberate policy by the Israelis to try to manage the news and the pictures coming out of their killing zone”.

“[Israeli] spokesmen and women, with their Australian, South African, and New York accents, try to convince the world that mass murder is in fact no more than a humane cleaning up operation. It is as if it has been scripted by Lewis Carroll”.

“Despite the vast majority of the Israeli people apparently behind the war, most of the rest of the world has seen through the lies. The attack on the United Nations refugee complex, in Gaza on Thursday, was the final proof, if it were needed that this hasn’t been any kind of pinpoint attack on so-called Hamas militants, but an indiscriminate blitz on Palestinians, young and old – men, women and children”.

George Galloway also talked of the “ethnic cleansing of the Palestinian people from Southern Palestine into Gaza.”

George Galloway ended this particular programme by saying:

“Once more this programme is dedicated to the brave men, women and children of Palestine. You will overcome, I believe that.”

In addition, whilst being interviewed by George Galloway , the Palestinian writer Ahmed Masoud took a similar position to the presenter, for example:

“Israel has been targeting civilians mainly: killing people in mosques; in hospitals; in universities. Again, to me, the way I see it, this is part of the ethnic cleansing that Israel is preparing for. They want to ethnically cleanse Gaza completely.”

The broadcaster also had the journalist Jeff Steinberg as a guest on the programme. Ofcom noted Press TV’s contention that he was giving the “Israeli perspective” on Israeli Government policy. However, Ofcom considered that his role in the programme was that of a commentator. His viewpoint would therefore be seen as an observer rather than someone putting forward the Israeli position. In fact at times he was actually critical of the actions of the Israeli Government, whilst giving his personal interpretation of the motivations behind US foreign policy and the actions of the Israeli Government. For example, Ofcom noted that during the programme this particular contributor labelled Israel’s actions in Gaza as an “act of outright Nazi-type genocide”.

Ofcom considered that both Ahmed Masoud and Jeff Steinberg were putting forward viewpoints critical of the Israeli Government’s policy in Gaza. In addition, the programme did not challenge any of the views that were critical of Israeli Government policy, put forward by these two contributors. Further, Ofcom considered that: there were no views included in the programme which could be considered being pro-Israeli; and, Press TV was unable to point Ofcom to any other clearly-linked or timely programmes which contained an “appropriately wide range of significant views” including views whjch were supportive of Israeli policy. Therefore, Ofcom considered that the viewpoint of the Israeli state was not adequately represented within the 18 January Real Deal. In this way, viewers were not adequately furnished with opinions as to how the situation in Gaza during January 2009, and its lead up, was perceived from the viewpoint of an official Israeli position.

Conclusion

It is a requirement in legislation that Ofcom must take particular account of the need to ensure due impartiality is preserved when dealing with major matters of political controversy.

In summary, Ofcom considered that within the Programmes overall, there was not an appropriately wide range of significant views included and that the views that were included that were contrary to the opinion of the presenter, were not given due weight. As a consequence, Ofcom considered the Programmes to have breached Rules 5.11 and 5.12 of the Code.

Ofcom recognises that limits to editorial freedom exist partly to ensure compliance with Section 5 of the Code, and in particular the requirement to ensure due impartiality when dealing with matters of major political or industrial controversy or major matters relating to current public policy. However, Ofcom also recognises that there may be a number of ways that broadcasters can ensure that an appropriately wide range of significant views are included in a programme and given due weight.

In carrying out its duties, Ofcom recognises that there is not, and should not be, any prohibition on broadcasters discussing controversial subjects^(-2-). The Israeli-Palestinian conflict understandably raises extremely strong views and emotions from all sides. It is right that broadcasters are able to reflect such opinions within its programmes. There must be a place for such programming which gives air to highly opinionated and vocal reaction on issues of such importance. However, in order to comply with the Code, broadcasters must ensure that, when discussing matters of major political or industrial controversy or a major matter relating to current public policy, a real range of significant views are included in a programme. Further, in such cases, when presenting any significant alternative view, it must be given due weight and consideration.

Breach of Rules 5.11 and 5.12

Footnotes:

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

2.- See Decision of Ofcom’s Content Sanctions Committee concerning Islam Channel Ltd., dated 21 July 2007 (the “Islam Channel Decision”) see http://www.ofcom.org.uk/tv/obb/ocsc_adjud/islamchannel.pdf

In Breach

Radio Asian Fever
Coverage of the European Elections, 10 May 2009, 18:00

Introduction

Radio Asian Fever (also known as Fever 107.3 FM) is an Asian community radio station based in Leeds which is owned and operated by Radio Asian Fever Ltd (“the Licensee”). The UK European parliamentary election took place on 4 June 2009 and the official election (or run up) period for this poll commenced on 28 April 2009. On 12 May 2009 Ofcom received a complaint that a political programme broadcast on Radio Asian Fever on 10 May 2009 was presented by Radio Asian Fever’s Project Director, who also sits on the Licensee’s board, and featured a local Labour councillor and a Labour candidate for the European parliamentary elections. It was claimed that the presenter and the two Labour representatives all encouraged listeners to vote Labour. The complainant was concerned that the Licensee showed political bias by only featuring a Labour councillor and Labour MEP candidate on the programme during an election period.

On receiving the complaint Ofcom immediately contacted the licensee to ensure that it fully understood its obligation under the impartiality requirements of the Code and, in particular, the rules that apply to broadcasting at the time of an election.

Ofcom subsequently requested comments from the Licensee on how this programme complied with Rule 6.1 (the application of impartiality requirements during the time of elections) and Rule 6.2 (due weight must be given to the coverage of major parties during the election period) of the Code.

Response

The broadcaster responded that some of its staff attended a meeting on 10 May 2009 at Leeds Civic Hall. It continued that, during that meeting, it was claimed that Labour’s second seat in the local European Parliament constituency was under threat, through voter apathy, from the British National Party in the forthcoming elections. Radio Asian Fever was asked to help by giving airtime to Mr Maroof Hussein and Cllr Arif Hussein (a Labour candidate for the European parliamentary elections and a local Labour councillor respectively) to encourage listeners to vote for Labour. The Licensee said that if it had refused this request it might have offended many members of the various ethnic communities who were present at the meeting and who listened to its service.

Having agreed to feature Mr Maroof Hussein and Mr Arif Hussein, the Licensee said that it had not realised that the European elections were subject to the same requirements as local and national elections and that it should have referred to the Code before agreeing to feature them. The Licensee continued that Radio Asian Fever has in the past always given due weight to the coverage of the major parties whenever it has covered elections and that not doing so on this occasion was due to a “lack of concentration” and poor judgement.

With regard to broadcasting the Licensee’s own opinions on air on a matter of political controversy (for example the presenter, who is on the Board, stated live on air “vote Labour to keep the BNP out”), the Licensee apologised and said that the presenter was guilty of being absent-minded and for getting carried away with the community’s concerns and fears. The Licensee sincerely apologised and confirmed that this would not happen again.

The Licensee said that in order to correct its mistake it would give due weight and time to members of the other major parties (i.e. the Liberal Democrats and the Conservatives) which was equal to that which it gave to the Labour Party. It said that it would also broadcast a generic advertisement for the European parliamentary elections urging its listeners to vote for a party of their choice. The Licensee concluded its response to Ofcom by asking it to take into account that it is a small community station operating on a very small budget broadcasting programmes which benefit the local community all year round.

Decision

Rule 6.2 – Due weight to the coverage of political parties in elections

The effect of Section 6 of the Code is to ensure that broadcasters apply the “due impartiality” rules (as set out in Section 5 of the Code) to their coverage of elections. In particular Rule 5.11 states that “due impartiality must be preserved on matters of major political… controversy…by the person providing a service…in each programme or in clearly linked and timely programmes”. Ofcom considers that the European parliamentary election is a major matter of political controversy as defined by the Code.

Ofcom recognises the importance to the right to freedom of expression. This encompasses the broadcasters’ right to transmit and the audience’s right to receive creative material, information and ideas without interference but subject to restrictions prescribed by law and necessary in a democratic society. This right is enshrined in the European Convention on Human Rights.

However, UK legislation requires broadcasters to preserve due impartiality on major matters of political controversy. This requirement is considered to be particularly important at the time of elections. This means that broadcasters in covering election issues must ensure that, during the election period, due weight is given to all the major parties (and other parties where appropriate). Rule 6.2 states:

“Due weight must be given to the coverage of major parties during the election period. Broadcasters must also consider giving appropriate coverage to other parties and independent candidates with significant views and perspectives.”

On 10 May 2009 programme, the station interviewed both a Labour candidate for the European Elections and a local Labour councillor. In the programme, the interviewees were able to promote the Labour Party and set out its policies for the election. Under the Code, the licensee was under an obligation during the election period to ensure that due impartiality was preserved and other major parties were therefore given an opportunity to participate. How this is achieved is an editorial matter for the broadcaster, for example impartiality can be achieved within a particular programme or over time through a series of programmes.

On receipt of the complaint, the licensee confirmed that it would contact the other major parties to offer them an amount of airtime equivalent to that which it had given to the Labour Party. It also said that it would create a generic advertising campaign for the European election urging its listeners to vote for the party of their choice. On 2 June 2009 Fever FM broadcast an hour-long interview with local Conservative councillor Matthew Lobley. It also arranged for an equal amount of time on-air with a local Liberal Democrat councillor. However, due to other commitments, the broadcaster informed us that the Liberal councillor was unable to attend the pre-arranged interview.

We note the efforts the licensee made to comply with the Code. However, at time of elections broadcasters must ensure due impartiality by giving due weight to major parties. In the case of general coverage of the election (as opposed to the specifics of a constituency report) the broadcaster was required to give coverage to the three main parties in the UK. The broadcaster’s failure to cover the Liberal Democrat Party’s position, in any form, therefore resulted in a breach of the Code.

Beach of Section 6.2 of the Code

Rule 6.1 Due Impartiality at the time of Elections

In the programme transmitted on 10 May 2009, the presenter (alongside his Labour Party guests) clearly endorsed the Labour Party and encouraged listeners to vote Labour.

The presenter of the programme, who is a Director of the Licensee and sits on its board, used his position publicly and personally to endorse a partial political message. For instance, he referred to the European election ballot paper stating “…on the voting sheet, there’s a box where you vote for Labour isn’t it…one cross on Labour…just one tick on Labour”. He also made other direct calls to listeners to vote Labour including “you’re not voting for him [one of the Labour party members present] you are voting for the Labour Party”, “ just vote for Labour on 4 June” and “just tick your box on Labour”. Towards the end of the programme the presenter stated:

“…it is very, very important that everybody gathers and votes for the Labour Party on 4 June and keeps out the British National Party”

This was all in the context of an ‘interview’ with two members of the Labour party, the overall effect being a one hour on–air conversation about the reasons to vote Labour in the up-coming election, and how to achieve it.

Ofcom did not therefore consider that the programme was presented with due impartiality. The seriousness of this breach of the Code was compounded by the fact that it occurred in the “election period” just three weeks before the European parliamentary election on 4 June 2009.

While Ofcom welcomed the broadcaster’s admission that it made a grave error of judgement in allowing its service to be used in a politically partial way, Ofcom was concerned that a member of the board of the Licensee, who was also the presenter of the programme, exercised poor judgement during an election period which led to a serious and significant breach of the Code. While Ofcom recognises that Radio Asian Fever is a small local station, it is a condition of its licence that it complies with the Code.

Breach of Rule 6.2 – Due weight to the coverage of political parties in elections
Breach of Rule 6.1 – Due Impartiality at the time of Elections

In Breach

CricketAM
Sky Sports 1, 2 August 2008, 09:00

SoccerAM
Sky Sports 1 and Sky One, 13 December 2008 and 3 January 2009, 09:00

Introduction

In April 2009, Ofcom carried out a routine spot check on British Sky Broadcasting Limited’s (“Sky”) use of premium rate services (“PRS”) for competitions and voting in programmes. Ofcom asked Sky if it was using PRS for competitions and voting and, if so, for details of its third-party verification arrangements.

Background to Ofcom PRS spot checks

The treatment by broadcasters of viewers’ and listeners’ communications with them, gave rise to serious public concern throughout much of 2007. Instances of poor practice, mostly concerning PRS, led to serious breaches of the Code and PhonepayPlus’ Code of Practice^(-1-) by some broadcasters.

As a result, on 9 May 2008, after consultation, Ofcom varied TV broadcasters’ licences to make them directly responsible for communication with the public where the mechanism of communication features in programmes. The types of communication covered by the licence variation include, but are not limited to, all forms of telephony, email and other internet-based communication and post.

In addition to this broad obligation, the licence variation introduced a requirement for broadcasters to implement a system of third-party verification where PRS is used for competitions or voting schemes in programmes. The condition of the licence requiring third-party verification became an active requirement on 1 August 2008. In its regulatory statement on the issue, Ofcom also made clear that it would conduct a schedule of spot checks on licensees’ verification systems^(-2-). Ofcom has therefore been carrying out spots checks on its licensees to ensure that where necessary, they have third-party verification in place.

In response to Ofcom’s spot check in April 2009, Sky informed us that it had uncovered that PRS had been used for competitions/voting in three programmes broadcast on Sky Sports 1 (as detailed below). Sky admitted these uses of PRS had not been subject to third party verification as required by Sky’s Television Licensable Content Service (TLCS) licences for the channels Sky Sports 1 and Sky One.

Sky also informed Ofcom that further checks it had conducted as a result of Ofcom’s spot check had brought to light the fact that technical problems had occurred with viewer voting in all three instances (detailed further below).

CricketAM is a live cricket-based magazine programme broadcast on Sky Sports 1 on Saturday mornings.

SoccerAM isa live football-based magazine programme. The series was broadcast simultaneously on Sky Sports 1 and Sky One on Saturday mornings.

CricketAM – 2 August 2008

The episode of CricketAM broadcast on 2 August 2008 included a viewer competition called ‘Car Park Calypso’. Approximately half-way through the hour and a half programme, viewers were invited via verbal and visual calls to action, to guess how many times players from the guest cricket club Montrose CC would hit the stumps during a 60 second bowl-out which would take place at the end of the programme. The prize was a goody-bag and a signed Middlesex Twenty20 shirt.

Viewers were invited to submit their guess by sending a text message to a PRS SMS shortcode number (there was one number for viewers in the UK and another for viewers in the Republic of Ireland (“ROI”)). The texts were charged at 25 pence plus the standard network rate for viewers in the UK, and 35 cents plus the standard the network rate for viewers in the ROI. Viewers could also enter by email.

Viewers were informed that entrants who had guessed correctly would be placed in a draw and the winner would be selected randomly the following Monday (4 August 2008) and announced during the next episode of the programme (9 August 2008). Just before the end of the programme, one of the presenters announced that the lines were closed, after which the 60 second bowl-out began. The players from Montrose CC hit the stumps 10 times during the allotted 60 seconds, so any viewers who had sent a text containing ‘10’ as their answer would go into the prize draw to win the goody-bag and the signed shirt.

Sky told Ofcom that on this occasion, due to a technical fault, competition entries submitted by viewers in the ROI had not been registered.

SoccerAM – 13 December 2008

This programme contained a light-hearted segment called ‘SoccerAM Tyne/Wear Dance-Off’, during which two dancers - one, a Sunderland supporter nicknamed ‘The Mackem Mover’ and the other, a Newcastle United supporter nicknamed ‘The Geordie Dancer’ - took it in turns to dance.

Lines opened at 10:35 and viewers were invited via verbal and visual calls to action, to vote for their favourite dancer by texting his name to a PRS SMS shortcode number (there was one number for viewers in the UK, and another for viewers in the ROI). The texts were charged at 25 pence plus the standard the network rate for viewers in the UK and 35 cents plus the standard the network rate for viewers in the ROI.

At 10:50 viewers were once again invited to vote and the lines closed at 11:00. The winner of the ‘dance-off’ was announced at 11:23 and awarded the ‘Tyne/Wear Dance-Off’ trophy.

Sky told Ofcom that on this occasion, due to a technical fault, votes submitted by viewers in the ROI had not been counted.

SoccerAM – 3 January 2009

This programme contained a light-hearted segment called ‘SoccerAM Dance-Off 2009’, during which 13 members of the SoccerAM crew took it in turns to dance for the chance to win the accolade of ‘Dance-Off Champion 2009’.

Lines opened at 10:43 and viewers were invited via verbal and visual calls to action to vote for the winner by texting the name of their favourite dancer to a PRS SMS shortcode number (there was one number for viewers in the UK, and another for viewers in the ROI). If viewers did not have a favourite, they could also text “DONT CARE”. The texts were charged at 25 pence plus the standard the network rate for viewers in the UK and 35 cents plus the standard the network rate for viewers in the ROI.

At 10:54 viewers were once again invited to vote and the lines closed at 11:25. At 11:31 one of the presenters announced which of the dancers had received the second and third highest number of votes. She then announced which dancer had received the most votes and presented him with the ‘Dance-Off 2009’ trophy.

Sky told Ofcom that on this occasion, due to human error by a member of Sky’s production staff in setting up the software system, votes submitted by viewers in the ROI had not been counted.

In relation to all three programmes, Ofcom asked Sky for its comments with regard to the following Licence Condition:

TLCS Licence Condition 6(A)(3)(b) Requirements for the handling of communications from Viewers:

“Where the Licensee uses a Controlled Premium Rate Service as defined under the PRS Condition in force at the time made under section 120 of the Communications Act 2003 as the method of communication for voting or competitions publicised within programme time, the Licensee shall ensure that its compliance procedures include a system of verification by an appropriate independent third party…”;

In relation to the CricketAM programme, Ofcom asked Sky for it comments under the following Code Rule:

Rule 2.11 – “Competitions should be conducted fairly, prizes should be described accurately and rules should be clear and appropriately made known”.

In relation to the two SoccerAM programmes, Ofcom asked Sky for it comments under the following Code Rule:

Rule 2.2 – “Factual programmes or items or portrayals of factual matters must not materially mislead the audience”.

Response

Sky told Ofcom that it had made the decision that once the licence condition requiring verification of PRS use for competitions and voting in programmes came into force, it would implement an internal policy not to use any PRS services for voting or competitions in programmes.

However, following Ofcom’s spot check, Sky discovered that since 1 August 2008 (the date on which verification of PRS use for competitions and voting became an active requirement), PRS had been “mistakenly used” for one viewer competition and two viewer votes (as detailed above). Sky stated that, as it was not its policy to use PRS services for voting and competitions in programmes, it did not have any verification arrangements in place.

The broadcaster said that, in the case of the ‘Car Park Calypso’ competition broadcast on CricketAM on 2 August 2008, there “appears to have been a miscommunication between the Legal Advisors and the production staff at Sky Sports” which meant that production staff had believed that the verification requirement did not become an active requirement until 9 August 2008. Sky had arranged to use a free entry route (email) for the competition broadcast on 9 August 2008, but due to the miscommunication had not arranged to do this for the competition broadcast on 2 August 2008.

In the case of the votes on SoccerAM broadcast on 13 December 2008 and 3 January 2009, Sky said that “it was believed that prior to Ofcom’s rules [requiring the verification of PRS for competitions and voting in programmes] coming into effect, Sky’s policy that it would no longer use PRS for in-programme votes and competitions had been effectively communicated to the business at all levels.” It added that “it is therefore highly unfortunate and extremely regrettable that these mistakes occurred.”

However, aside from the fact that it had not verified the use of PRS in these three programmes as required under its licence, Sky also found that in all three cases none of the competition entries or votes received from viewers in the ROI were registered in the software system used by the production team.

CricketAM – 2 August 2008 – ‘Car Park Calypso’ competition

Due to a technical failure by Sky’s third party technical services provider, the software system failed to register the entries of five entrants from ROI. However, Sky stated that none of these entrants had guessed the correct answer, so would not, in any case, have been put in the prize draw for a chance to win the prize.

SoccerAM – 13 December 2008 – ‘SoccerAM Tyne/Wear Dance-Off’

Due to a technical failure by Sky’s third party technical services provider, the software system failed to register 866 valid votes from viewers in ROI. Sky told Ofcom that having obtained from its service provider details of the votes from the ROI, it could confirm that those votes would not have made any material difference to the outcome of the vote.

SoccerAM – 3 January 2009 – ‘SoccerAM Dance-Off 2009’

Due to human error by a member of Sky’s production staff in setting up the software system, it had failed to register 794 valid votes from viewers in ROI. Sky told Ofcom that having obtained from its service provider details of the votes from the ROI, it could confirm that those votes would not have made any material difference to the outcome of the vote.

The broadcaster added that it had not benefited financially from the texts received from viewers in the ROI because the service provider had failed to report any revenues from the use of the PRS numbers used for viewers in the ROI on these occasions.

When Sky became aware that these errors had occurred, it told Ofcom that it had taken the following remedial steps:

On 22 May 2009, it sent a press release to a number of major news outlets in the UK and ROI acknowledging and apologising for the errors made and highlighting the steps which would be taken.
It asked its PRS service provider to contact all the relevant mobile operators in the ROI, to action a refund of all charges attributable to the texts sent from the ROI in relation to the SoccerAM votes and CricketAM competition.
Following the refund of the text charges, Sky also sent the following text messages to each affected viewer to notify them of the refund:
For texts received for the Car Park Calypso competition, 2 August 2008 - “CricketAM has refunded you 35c for txt to Calypso on 2/8/08. Entry not counted due to technical fault. Refund on next bill. For info skysports.com/cricketam”
For texts received for the SoccerAM Tyne/Wear Dance-Off, SoccerAM, 13 December 2008 – “SoccerAM has refunded you 35c for txt vote to Dance Off on 13/12/08. Vote not counted due to technical fault. Refund on next bill. www.socceram.com for info”
For texts received for the SoccerAM Dance-Off 2009, SoccerAM, 3 January 2009 – “SoccerAM has refunded you 35c for txt vote to Dance Off on 3/1/09. Vote not counted due to technical fault. Refund on next bill. www.socceram.com for info”

Additionally, in relation to the ‘Car Park Calypso’ competition broadcast on CricketAM on 2 August 2008, Sky contacted the five affected viewers individually to apologise for the error and sent them a CricketAM t-shirt as a gesture of goodwill. The broadcaster also published a written apology on the CricketAM website, together with the text of its formal press release on the matter.

In relation to the two dance-off competitions broadcast on 13 December 2008 and 3 January 2009, in addition to the actions detailed above, Sky broadcast an on-air apology (in text and voice-over) during SoccerAM on 23 May 2009 (the final programme of the series). The broadcaster said that “in order to ensure that the apology was given appropriate prominence within the programme, and viewed by as many affected viewers as possible, the apology aired at around 10:30am, approximately the same time as when the original dance-offs and voting took place. The apology was pre-recorded and did not involve the show’s presenters in order to ensure that the matter would be viewed as being taken seriously, and outside the context of the light-hearted and irreverent nature of the programme.” In addition to the broadcast apology, Sky published a written apology on the SoccerAM website, together with the text of its formal press release on the matter.

Sky said that it had considered that “these actions have gone some way to remedying the errors…by putting entrants in the ROI in the position they would have been in had they not texted the relevant shows. Furthermore, Sky considers that it has done so in a fully transparent manner in order to bring the matter to the attention of viewers and the wider public, further demonstrating the seriousness with which it views this matter and its commitment to remedying the situation.”

Sky told Ofcom that it continues to operate a policy of not using PRS for votes and competitions and that it had taken immediate action to ensure that these failures are not repeated, including:

reminding all Sky Sports production staff that Sky’s policy is not to use PRS in programmes;
reviewing Sky’s arrangements with its service provider to ensure “enhanced audit and review procedures (in respect of the services it continues to provide, principally free text mechanisms)”;
reviewing the internal procedures by which SMS shortcodes are provided to production staff to introduce an additional compliance process;
providing further training to the production teams involved in the particular incidents concerned; and
commencing a review of the editorial compliance structure within Sky Sports to assess whether improvements can be made to the effectiveness of compliance.

Decision

CricketAM – 2 August 2008

Rule 2.11 of the Code states that “Competitions should be conducted fairly, prizes should be described accurately and rules should be clear and appropriately made known”.

Following the broadcaster’s on air invitations to viewers to enter the ‘Car Park Calypso’ competition, those viewers in the ROI who paid a premium rate to enter the competition would have done so on the basis that they would have a fair and equal chance of winning the competition. However, due to the technical fault, ROI viewers’ entries were not registered and therefore those viewers stood no chance of winning the competition, irrespective of whether or not they had the correct answer.

Ofcom acknowledges that:

the fault was unintentional and occurred due to a technical error;
the error meant that five viewers’ entries from the ROI were affected;
the broadcaster has subsequently improved its compliance procedures; and
the broadcaster took extensive remedial steps (as described above) to mitigate the level of harm caused to viewers.

Nevertheless, the competition was not conducted fairly, in breach of Rule 2.11 of the Code.

SoccerAM – 13 December 2008 and 3 January 2009

Rule 2.2 of the Code states that “Factual programmes or items or portrayals of factual matters must not materially mislead the audience”.

Ofcom found that during the episodes of SoccerAM broadcast on 13 December 2008 and 3 January 2009, the votes of viewers from the ROI had not been counted by the software system. Those viewers were materially misled into believing that they could pay a premium rate to vote to influence the outcome of the dance-off competitions, if they sent a text to the PRS numbers that were displayed on screen and promoted in verbal calls to action.

Ofcom acknowledges that, in both of these cases, the fact that viewer votes from the ROI were not counted, was unintentional and occurred in one case due to human error by a member of Sky’s production staff and in the other case, due to a technical error. Ofcom also took into account that Sky has subsequently taken extensive remedial steps to mitigate the level of harm caused to viewers, and has improved its compliance procedures.

However, those 1,660 viewers who paid to vote by PRS during these two programmes did so on the understanding that their votes would be counted and would influence the final outcome. They were therefore materially misled as to their ability to cast votes and potentially influence the outcome of the vote. As a result, material harm in terms of financial loss was also caused to those 1,660 viewers, even though Sky subsequently issued refunds.

Ofcom therefore found both programmes in breach of Rule 2.2 of the Code.

TLCS Licence Condition 6(A)(3)(b)

Ofcom noted that an internal miscommunication about the date on which the verification requirements came into force led to the use of PRS in the ‘Car Park Calypso’ competition broadcast on CricketAM on 2 August 2008. While this was an unfortunate mistake, the fact that PRS was used for a competition in a programme and was not subject to third-party verification, was in breach of TLCS Licence Condition 6(A)(3)(b).

In the case of the PRS votes which were conducted during the episodes of SoccerAM broadcast on 13 December 2008 and 3 January 2009, Ofcom noted that despite Sky’s internal policy of not using PRS in votes or competitions in programmes, the production staff appeared to be unaware of this policy. Ofcom welcomes the remedial steps which the broadcaster has since taken to improve compliance processes, but the fact that PRS were used for voting in these two programmes and were not subject to third-party verification was in breach of TLCS Licence Condition 6(A)(3)(b).

Ofcom was particularly concerned that the use of the PRS in these three instances only came to Sky’s attention as a result of Ofcom’s routine spot check, and it is questionable whether the errors that resulted in the breaches in these cases would have come to light at all had it not been for this check.

Throughout 2007 and 2008, whether in sanctions adjudications, published findings, additional guidance and, indeed, via the new licence condition, Ofcom had made it clear to all its licensees that it expected extreme caution to be exercised in the use of PRS in programmes. Ofcom was therefore surprised that, in the case of the ‘Car Park Calypso’ competition broadcast during CricketAM on 2 August 2008, a “miscommunication between the Legal Advisors and the production staff at Sky Sports” about the date on which the new licence condition came into force could have occurred,

It was also a matter of great concern to Ofcom that it appeared that appropriate compliance checks had not been undertaken by Sky at the time of transmission of the episodes of SoccerAM on 13 December 2008 and 3 January 2009. Irrespective of the misunderstanding by production staff, it would appear that no-one responsible for ensuring these programmes’ compliance with the Code had noticed that they included the use of PRS, in contravention of Sky’s own internal policy.

However, Ofcom noted that in all three instances, the compliance failures were not caused by a deliberate act and the audience was not misled intentionally. Further Ofcom recognises the extensive steps that Sky took once the breaches had been identified.

Nevertheless, the breaches of the Code, and of the Licence Condition, are serious and will be held on record.

Car Park Calypso competition, CricketAM, 2 August 2008 – breach of Rule 2.11 and TLCS Licence Condition 6(A)(3)(b)

SoccerAM Tyne/Wear Dance-Off, SoccerAM, 13 December 2008 - breach of Rule 2.2 and TLCS Licence Condition 6(A)(3)(b)

SoccerAM Dance-Off 2009, SoccerAM, 3 January 2009 - breach of Rule 2.2 and TLCS Licence Condition 6(A)(3)(b)

Footnotes:

1.-http://www.phonepayplus.org.uk/upload/PhonepayPlus_Code_of_Practice.pdf

2.- Regulatory Statement Participation TV Part 1: protecting viewers and consumers http://www.ofcom.org.uk/consult/condocs/participationtv/statement/

In Breach

Free-to-view promotion for Playboy TV
Adult Previews channel, Virgin Media, 5 May 2009, 22:00

Introduction

The ‘Adult Previews’ channel is located on the Virgin Media service (Channel 470). The channel is operated and complied by Virgin Media Limited (“Virgin Media”). It is available without any access restrictions and is situated in the ‘adult’ section of the Virgin Media electronic programme guide (“Virgin EPG”). Its purpose is to promote ‘adult-sex’ channels with mandatory access restrictions which are available on the Virgin Media service. From 22:00 the channel broadcasts a series of promotional trailers on a loop, each of which lasts around ten minutes.

Ofcom received a complaint about a free-to-view promotional trailer broadcast from 22:00 on 5 May 2009, promoting the ‘adult-sex’ channel Playboy TV. The complainant said the trailer showed naked women simulating sex, touching themselves and other women. The complainant felt that the sexual material broadcast in the trailer was too strong to be available at 22:00 without mandatory access restrictions.

Ofcom noted that the trailer for Playboy TV included eight separate promotions for programmes of a sexual nature broadcast on this channel. The trailer included frequent, but brief, clips of strong sexual material. These included: shots of naked breasts and female pubic areas; men and women touching each other in a sexual manner, including licking and kissing breasts; women stroking their breasts and buttocks; and cropped shots of real or simulated sex acts. The trailer also contained an example of the most offensive language: “…do you like it when you get really hard and the girl fucking shoves your cock down her throat?”

We asked Virgin Media for its comments in relation to Rules 2.1 (generally accepted standards) and 2.3 (material which may cause offence must be justified by the context).

Response

The broadcaster highlighted that the ‘Adult Previews’ channel broadcasts specific guidance to customers before 22:00 about how they can restrict access to this channel or any other channels containing ‘adult’ content. Virgin Media said that this information is to protect members of the public should they decide that such content is not of interest to them or if they do not wish to find it on their Virgin Media service.

With regard to whether the material complied with the Code, the broadcaster said that the material was broadcast on a channel listed in the ‘adult’ section of the Virgin EPG and clearly labelled as “Adult Previews”. Therefore, viewers would have been aware of the type of material to expect. It continued that the channel does not air ‘adult’ promotional material until after 22:00 and the potential audience of the material was likely to be very small due to the unlikely appeal of looped programme trailers. The broadcaster also argued that if a viewer had come across the channel or material unawares, which it said was unlikely, it considered that any offence caused would have been minimal.

Decision

Rule 2.3 makes clear that “in applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context.” “Context” in turn includes a variety of different potential factors such as the editorial content of the programme, the service on which the material is broadcast, the time of broadcast and the effect of the material on viewers who may come across it unawares. In this case Ofcom considered that, given the nature and strength of the material broadcast in this trailer, it had the clear potential to cause offence. Therefore the broadcaster was required to ensure that the material was justified by the context in order to provide adequate protection for viewers.

Ofcom noted the broadcaster’s argument that the material complained of met generally accepted standards because it was broadcast on a channel with the specific and clearly labelled purpose of showing promotional trailers for ‘adult-sex’ channels. Further, the channel was located in the ‘adult’ section of the Virgin EPG and therefore the material would not have exceeded the expectations of the audience. Also it was shown after 22:00. In addition, Ofcom noted that prior to 22:00 the channel provides information to viewers regarding how they can restrict access to the ‘Adult Preview’ channel and the ‘adult-sex’ channels it promotes.

However, with regard to this particular trailer, Ofcom was concerned by the explicit nature of the content and the time of broadcast, given it could be viewed without any access restrictions. The trailer contained frequent shots of naked breasts and female pubic areas, men and women touching each other in a sexual manner and cropped shots of real or simulated sex acts. It also contained most offensive language as well as sexually explicit language. In Ofcom’s view therefore this material had the potential to be highly offensive to viewers, especially ones who came across it unawares, and so was not within audience expectations. Graphic content of this nature, albeit tightly edited, requires a strong justification to be broadcast without access restrictions, particularly if relatively soon after the 21:00 watershed. In this case the strong content was broadcast from 22:00 – only one hour after the watershed.

Ofcom has consistently made clear through previous published decisions that the broadcast of explicit sexual content, such as this, which is freely available and without access restrictions is not justified by context simply by it being shown on a channel: in the ‘adult’ section of an EPG; and whose title makes clear it specialises in broadcasting ‘adult’ content. Furthermore, the provision of information to the viewer about voluntary parental controls which can restrict access to that channel does not provide contextual justification for the broadcast of material of this nature at this time. This is particularly relevant in this case, given that the information provided by the broadcaster was not part of the trailer complained of or the programming broadcast after 22:00. In light of these factors, it was Ofcom’s view that, on balance, the broadcast of this offensive material was not sufficiently justified by the context and was a breach of generally accepted standards. Therefore the material breached Rules 2.1 and 2.3 of the Code.

Breach of Rules 2.1 and 2.3 of the Code

In Breach

Stonecold TV
My Channel, 20 May 2009, 18:30

Introduction

StoneCold TV is aprogramme of humorous clips intended for an adult audience broadcast on the general entertainment channel, My Channel. This particular episode featured a segment entitled “Bill and Todd’s Drunk Adventure” in which two men called Bill and Ted were shown filming each other engaging in various activities while drunk. In one sequence the two men use an implement which generated an electric shock when they made contact with it. The men’s reactions to the pain of the electric shock were also broadcast. These included the following exclamations: “…what the fuck?...”; “…oh shit…”; “… fuckin’ dude…”; “motherfucker”; and “ this bullshit is fuckin’ done!”. A second sequence showed one of the men ingesting the contents of an ashtray and saying “… it’s a fucking ashtray…” and “… I’m a fucking nutjob…”

Two viewers complained about the broadcast of this language before the watershed.

Ofcom wrote to My Channel, asking it to comment under Rule 1.14 (the most offensive language must not be broadcast before the watershed). Ofcom also asked the broadcaster to comment on the programme generally in light of Rule 1.3 (inappropriate scheduling).

Response

My Channel stated that a scheduling error had led to the broadcast of the programme in a pre watershed timeslot. It had in fact been allocated a 23.30 timeslot. This was a genuine, human error and the channel apologised for the offence that had been caused to viewers. My Channel also provided Ofcom with details of steps it had taken internally to prevent such an error occurring in the future. These included the separation, in storage, of tapes of programmes suitable for pre-watershed timeslots and tapes of programmes suitable for post-watershed timeslots. In addition an extra check of the suitability of all programmes before broadcast would now be carried out by the channel.

Decision

Rule 1.14 prohibits the broadcast of the most offensive language before the watershed. Ofcom research on offensive language^(-1-) identified that “fuck” and its derivatives were considered by viewers to be very offensive. Rule 1.3 seeks to ensure that children are protected by means of inappropriate scheduling from unsuitable material. In this case Ofcom considered that the programme contained themes that were clearly not suitable for a pre-watershed audience. For instance, the programme contained images of drunken adults behaving in a dangerous manner that could be easily imitable by children.

Ofcom notes that the broadcast of this programme on this occasion occurred as a result of human error. We welcome the steps taken by My Channel as a result of the broadcast to prevent a similar error occurring in the future. However, the broadcast of such language and with such frequency before the 21:00 watershed is a clear breach of Rule 1.14. Additionally the programme was inappropriately scheduled and resulted in a breach or Rule 1.3.

Breach of Rules 1.3 and 1.14

Footnotes:

1.- “Language and Sexual Imagery in Broadcasting: A Contextual Investigation”, September 2005

Resolved

Snoop Doggs Father Hood
4 Music, 20 April 2009, 19:00

Introduction

Snoop Dogg's Father Hood is an American made television reality show which features rap artist Snoop Dogg and his family going about their daily lives. This particular episode featured several sequences in which offensive language was broadcast. These occurred during conversations between Snoop Dogg and his children and Snoop Dogg and members of his entourage. The sequences were interspersed throughout the programme and included: “…it just pissed me off…”; “…fuck, we gotta go…”; “fucked up”; and “make sure that nigger don’t go in my room…”. Two viewers complained about the broadcast of this language before the watershed.

Ofcom wrote to Box Television Limited, which owns and operates 4 Music, asking it to comment under Rule 1.14 (the most offensive language must not be broadcast before the watershed).

Response

Box Television stated that this series is acquired from the United States. As Snoop Dogg appeals to a wide range of 4 Music’s viewers a decision was taken that only a pre-watershed edited version of the series would be made for broadcast on 4 Music to ensure the programme’s suitability for both pre- and post-watershed transmission.

On this occasion, because the programme had been delivered late to the broadcaster, the correctly edited version of the episode had not been locked into the channel’s transmission schedule. This meant the unedited version of the programme was requested for transmission. Box Television explained that this was due to human error and apologised for any offence that the error had caused. As soon as the error came to light a full investigation was carried out which resulted in the introduction of additional pre transmission procedural checks. An apology for the broadcast was also aired the following evening and again the following week immediately before the next showing of Snoop Dogg’s Fatherhood.

Decision

Rule 1.14 prohibits the broadcast of the most offensive language before the watershed. While some of the language complained of would not come within this category, Ofcom research on offensive language ^(-1-) identified that “fuck” and its derivatives were considered by viewers to be very offensive. There were two instances of this word in the broadcast.

Ofcom notes that the broadcast of this language on this occasion occurred as a result of human error. Ofcom welcomes the steps taken by Box Television as a result of the broadcast to prevent a similar error occurring in the future. In addition we note that a full apology for the error and for any offence to viewers was broadcast on 4Music on two separate occasions.
While we have concerns about the broadcast of this material, in light of the actions taken by the broadcaster and its good compliance record in this area Ofcom considers this matter resolved.

Footnotes:

1.- “Language and Sexual Imagery in Broadcasting: A Contextual Investigation”, September 2005

Resolved

Resolved

Trailer for Black
9X, 8 June 2009, approximately 09:50

Introduction

9X is a Hindi language channel operated by INX Media UK Limited (“INX Media”). The channel broadcasts general entertainment programming within the UK.

A viewer complained about the broadcast of a trailer for the programme ‘Black’, a drama series about the paranormal (which is transmitted on 9X, Monday to Thursday at 22:30). The trailer was transmitted at approximately 09:50. It showed a woman on a bed with her hands tied behind her back. The woman appeared to be possessed, with abnormally large eyes, whitened irises and heavily dilated pupils. She was shown trying to escape and looking intensely into the camera. She was also shown levitating off a bed. The trailer included haunting sound effects, including howling wolves. The complainant said the trailer was very disturbing and was concerned that it was broadcast when his children were watching.

We asked INX Media for its comments in relation to Rule 1.3 of the Code “children must be protected by appropriate scheduling from material that is unsuitable for them.”

Response

INX Media acknowledged that the trailer was not appropriate for children and that the scheduling of the trailer at this time was an inadvertent error. INX Media apologised for the error and informed Ofcom that it has taken immediate steps to reschedule the trailer after 21:00 in order to prevent any repeat broadcast.

Decision

Ofcom notes INX Media’s acknowledgement that the trailer was inappropriately scheduled and therefore did not comply with the Code. Ofcom also notes the broadcaster’s apology and the compliance measures taken in response to this scheduling error.

In view of these actions and taking into account that the broadcaster has previously had a good compliance record, Ofcom considers this matter resolved.

Resolved

Not In Breach

It Pays to Watch
Five, 15 October 2008, 17:30

Introduction

It Pays to Watch is a consumer advice programme presented by Martin Lewis. Martin Lewis is also the owner of a website that provides consumers with information on how to save money. The website includes a search tool called FlightChecker, which enables users to search for cheap flights .

This episode of It Pays to Watch included an item on how to obtain low cost flights. The presenter referred to a number of different websites as sources of cheap flight information, including flight checkertype services, which he described as a source of finding “the really dirty cheap flights”. Shots of the presenter’s FlightChecker service, with the web address visible, were featured on screen.

A viewer objected that the portrayal of the presenter’s service was misleading as the service did not include flights provided by a major budget airline. On the basis that the programme presenter is the owner of the FlightChecker service, the complainant questioned whether the programme was distorted for commercial purposes.

Ofcom asked Five to comment on the complaint with reference to Rule 10.1 of the Code which states: “Broadcasters must maintain the independence of editorial control over programme content”.

Response

By way of background to the programme, Five explained that the It Pays to Watch series was commissioned by its Senior Programme Controller and Head of News & Current Affairs. The series is produced by an independent production company, Money Savings Productions Limited. The programme’s executive producer is the chief executive of Money Savings Productions Limited and has produced and executive produced a range of factual programmes for the channel over the past ten years. Five advised that both the executive producer and the programme’s presenter, Martin Lewis, are also directors of Money Saving Productions Limited.

Five stated that the control of the editorial content of the programme rested with the programme’s production team and Five, as commissioner and broadcaster of the programme. Five said that the programme was produced in accordance with its standard general terms of agreement which enabled it to exercise editorial control of the programme content to ensure compliance with the Code. The programme was written and produced by the series producer who was a freelance contractor engaged by the production company.

The programme’s editorial specification was to provide information and advice to viewers on how best to save money in a variety of ways by cutting costs, spending less, budgeting better, and making use of discounts and offers. Five explained that each week the programme tackled a different theme. The content of each programme was chosen by the production team in conjunction with the presenter. Five advised that the presenter, Martin Lewis, is a consumer finance journalist who regularly appears as a finance expert on a number of programmes on different channels. He has also written three books on financial matters. Five said that the presenter’s wealth of experience in this field was invaluable both to the production team in drawing on his knowledge, and also to viewers because it gave the programme credibility.

Five explained that once the topics chosen for inclusion in the programme were agreed, the programme’s producer wrote the first draft of the programme’s running order and script. This was done independently of the presenter. Each item was independently researched and reviewed by a member of the production team. The script was circulated to the programme’s executive producer for review, to Five’s commissioning editor for approval, and to Five’s legal and compliance team for review. Further rounds of review and approval of the script and running order took place prior to recording of each episode.

Five stated that the programme in question was recorded on the day of transmission. A member of Five’s programming team was present at each recording, together with a lawyer from its legal and compliance team. Each item in the programme was carefully reviewed to ensure the programme’s editorial integrity and compliance with the Code.

Five said that the main theme of the programme in question was how to obtain the best deal on a bargain break. During an item on flights the presenter noted that the internet was a “powerhouse” for finding cheap flights. The presenter advised viewers that there were a lot of cheap flight websites but that viewers needed to understand that the key to saving money was using the “right type for the right purpose”. The presenter then outlined the various types of websites available.

The first, the “screen-scraper”, the presenter described as perfect for viewers who knew exactly where and when they wanted to go. The presenter gave his “top picks” for this type of site as Kayak.co.uk and Travelsupermarket.com. Images from both sites were displayed on screen.

The presenter then advised viewers who wanted “the really dirty cheap flights” to use “a flight checker”. He explained that such sites work by finding available flights to match the user’s desired date and price criteria. The presenter advised viewers that they could find details of “the” flight checker on the programme’s website. The presenter also referred to another website, Skyscanner, that had some of the same functionality. Again, images from both sites were displayed on screen.

Five advised that, later in the programme, the presenter advised viewers that the “start point for anything” was comparison websites and named seven such sites.

Five said that while it is true that the FlightChecker service is part of a website operated by the presenter, no commission is paid by any of the airlines searched by the service. Therefore, if any viewers used the service as a result of watching the programme, neither the presenter nor the website would have benefitted from the booking. Five said that the decision to feature the site was based on its unique functionality and its ability to help viewers find some of the cheapest flights available. The only site to offer similar (albeit more limited) function was also mentioned in the programme. In addition, the website address for the service was not given in the programme to avoid promoting the presenter’s website. Direct website addresses were given for all other websites mentioned in the programme.

In summary, Five re-iterated that the editorial control of the programme remained with the channel and the production company. The presenter’s experience and knowledge of consumer issues was an essential ingredient to the success of the programme, but the programme was not distorted for any commercial purpose.

Decision

Ofcom noted Five’s grounds for including the reference to the FlightChecker service and its assurances that the channel exercised editorial control over the series and that the programme was not distorted for commercial purposes.

We viewed the programme, as well as the other seven programmes in the series, to assess whether they appeared to be distorted for commercial purposes. Overall, we found no evidence to suggest that the presenter’s other commercial activities had distorted the programme content.

We did not identify references to the programme presenter’s website in any of the other programmes in the series. We also found that, on balance, the prominence given to the presenter’s FlightChecker service in this episode was not significantly greater than references given to other third party sites throughout the series. Importantly, we considered the reference to the service within the programme was justified given the nature of the discussion (i.e. how to obtain cheap flights).

While we were satisfied that there was no evidence to suggest that Five failed to maintain editorial control over the programme, we recognise that the presenter’s ownership of the Flighchecker service could lead viewers to question the motivation behind the reference and the editorial independence of the review. One of the Principles underpinning Section Ten of the Code is that programmes should not be distorted for commercial purposes. Even where no actual distortion has occurred, a programme that appears to be distorted for commercial purposes is likely to draw the editorial integrity of that programme into question.

The case highlights the potential issues that can arise when a reporter reviewing products and services has a relationship with those products or services (in this case the presenter, who was also a director of the production company, was the owner of the service reviewed). In Ofcom’s view, audiences have a high expectation of the editorial integrity of consumer advice programmes, and therefore we advise all broadcasters to exercise extreme caution when commissioning and complying such programmes to ensure editorial integrity is not undermined.

Not in Breach of Rule 10.1

The full document and Fairness & Privacy cases are available below

In this section

Issue number 139 - 03/08/09 (589 kB)

Full Print Version

Broadcast Bulletin Issue number 139 - 03/08/09

Standards cases

In Breach

Comment & The Real DealPress TV, January 2009, Various dates and times

In Breach

Radio Asian FeverCoverage of the European Elections, 10 May 2009, 18:00

In Breach

CricketAMSky Sports 1, 2 August 2008, 09:00SoccerAMSky Sports 1 and Sky One, 13 December 2008 and 3 January 2009, 09:00

Footnotes:

In Breach

Free-to-view promotion for Playboy TVAdult Previews channel, Virgin Media, 5 May 2009, 22:00

In Breach

Stonecold TV My Channel, 20 May 2009, 18:30

Resolved

Snoop Doggs Father Hood 4 Music, 20 April 2009, 19:00

Resolved

Trailer for Black9X, 8 June 2009, approximately 09:50

Not In Breach

It Pays to Watch Five, 15 October 2008, 17:30

In this section

Issue number 139 - 03/08/09 (589 kB)

Comment & The Real Deal
Press TV, January 2009, Various dates and times

Radio Asian Fever
Coverage of the European Elections, 10 May 2009, 18:00

CricketAM
Sky Sports 1, 2 August 2008, 09:00

SoccerAM
Sky Sports 1 and Sky One, 13 December 2008 and 3 January 2009, 09:00

Free-to-view promotion for Playboy TV
Adult Previews channel, Virgin Media, 5 May 2009, 22:00

Stonecold TV
My Channel, 20 May 2009, 18:30

Snoop Doggs Father Hood
4 Music, 20 April 2009, 19:00

Trailer for Black
9X, 8 June 2009, approximately 09:50

It Pays to Watch
Five, 15 October 2008, 17:30