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Broadcast Bulletin Issue number 141 14/09/09

UTV Live Tonight, The Land Cries Out for the Blood that Was Shed, Sky HD cross-promotions featuring the Ashes series, Costa Coffee sponsorship of competitions in breakfast shows, XXX Channel AKA - ‘Playtime Two’, Giggs Featuring Kyze, UK Tings, Bangla TV, Most Haunted, The Jeremy Kyle Show, Midlands Today & various Fairness and Privacy Complaints - See PDF bulletin

Standards cases

In Breach

UTV Live Tonight
UTV, 21 and 27 May 2009, 22:40

Introduction

Elections to the European Parliament were held in Northern Ireland on 4 June 2009. As part of its election coverage, UTV broadcast two reports featuring the candidates standing in the election. The first report was broadcast on 21 May 2009 and the second on 27 May 2009. The first report was introduced as follows:

“seven parties are contesting this election, and tonight we are going to look at three of them.”

Three of the candidates were then profiled. The report ended with the following:

“…that was a look at three of our European candidates. Next week we’ll look at the issues concerning the other four.”

The following week the remaining candidates were profiled. A viewer complained that the report of 27 May 2009 did not name all of the candidates who were standing for election. Ofcom asked UTV to comment on the reports in light of Rule 6.13 of the Code which states that when broadcasters transmit constituency (or electoral area) reports focusing on prospective candidates then all the parties standing in that area constituency should be listed in sound and/or vision (-1-).

Response

UTV said it took its responsibility to its audience seriously. In this instance it said that its output had inadvertently breached Rule 6.13 of the Code and it apologised. The broadcaster went on to argue that the reports themselves thoroughly reviewed some of the key election policies of all the parties taking part in the European elections. It said that the purpose of Rule 6.13 is to ensure that the public is aware that there may be other parties not mentioned in reports that will feature on the ballot paper. In this respect it argued that even the most casual viewer of UTV’s election coverage would have been aware of all of the parties and candidates. Finally, UTV was keen to point out that as a result of the complaint it had re-briefed its editorial team about its obligations under the Code.

Decision

The rules in Section 6 of the Code regarding the conduct of elections come from Ofcom’s statutory duties as outlined in the Representation of the People Act 1983 (as amended) as well as the Communications Act 2003.

The requirement to broadcast the name of all parties standing in an electoral area, in a constituency report, is to ensure the electorate is aware of all the prospective candidates who are standing for election – irrespective of which candidate is the subject of the report. In both of these reports, UTV failed to list either in sound and/or vision as required, all of the parties with a candidate standing in the elections. This resulted in a breach of the Rule.

Ofcom welcomes UTV’s acknowledgment of a breach of Rule 6.13 in respect of these two electoral reports and the steps that have been taken to remind the editorial team of its responsibilities under the Code.

We also recognise that during the two reports as a whole, coverage was given to all of the relevant parties. In Ofcom’s view this reduced the potential for unfairness to any individual party arising from the broadcaster’s failure to list all of the parties in the reports.
 
Breach of Rule 6.13

Footnotes:

  1.- In the case of an independent candidate who is not standing on a party list, his or her name should also be included.

In Breach

The Land Cries Out for the Blood that Was Shed
Revelation TV, 23 June 2009, 15:30

Introduction

Revelation TV is a UK-based Christian channel that features a range of programmes with a religious theme. Ofcom received a complaint about The Land Cries Out for the Blood that was Shed (“ The Land Cries Out”), objecting to the programme’s stance against abortion, and the showing of graphic images of aborted foetuses. The complainant was concerned that the programme had been broadcast in the afternoon and prior to a children’s programme called R Kids.
 
The programme was a documentary film, which consisted of commentary and interviews setting out facts, figures and opinions about abortion. All the interviewees (drawn mainly from anti-abortion organisations in the UK, the US and Israel) put forward arguments and opinions against abortion, with the views expressed being predominantly delivered from a Christian and Jewish perspective. During the programme, a range of images (collectively “the Images”) were shown, which depicted, in photographic form, aborted foetuses or the process of abortion.

In summary, the Images consisted of the following:

  • firstly, montages (“the Montages”) of still photographs of late-stage aborted foetuses shown three times during the programme lasting in excess of thirty seconds in total (-1-); and
  • second, a number of times, brief but discernable “flash frames” (-2-) (the “Flash-Frames”) of photographs of late-stage aborted foetuses, shown intermittently throughout the programme.

The programme also touched on: the legal situation pertaining to abortion in the UK, the US and Israel; and the United Nations policy concerning abortion. In addition, a number of interviewees gave their perspectives on the legal situation surrounding abortion in the above countries, and how it was being dealt with at the UN.

Ofcom asked Revelation TV for its comments under the following Rules of the Code:

  • Rule 1.3: Children must be protected by appropriate scheduling;
  • Rule 2.1: Generally accepted standards must be applied to the contents of television programmes;
  • Rule 2.3: Offensive material must be justified by the context and appropriate information should also be broadcast; and
  • Rule 5.5: On matters of political controversy or relating to current public policy due impartiality must be preserved.

Response

Revelation TV said that The Land Cries Out was a film that had been produced by the Hatikvah Film Trust (“Hatikvah”), and that the broadcaster intended, on 10 June 2009, to show excerpts of the film during an interview with the Chief Executive Officer of Hatikvah (“the 10 June Interview”). In preparing for the 10 June Interview, the broadcaster said that it realised that: the copy of The Land Cries Out supplied by Hatikvah was faulty, in that it abruptly stopped after 41 minutes; and that some of the images in the film were, according to the broadcaster: “too graphic for showing on TV”. Revelation TV said that as the 10 June Interview “was only showing excerpts from the film, it was decided to go ahead using the faulty copy of the film”. The broadcaster said that during the 10 June Interview: “an opportunity was given for viewers to respond and interact on the subject matter by email, texting and live phone calls to the studio”.

Following the 10 June Interview, the broadcaster said that instructions had been given to staff “that the tape supplied by [Hatikvah] was not to be shown until a corrected version of the film arrived and some of the graphics had been toned down”. Instructions were also given that “the corrected film could only be played after the 9.00 pm watershed”. The broadcaster said that “Regrettably, those instructions were not followed”.

Specifically, Revelation TV said that the tape of The Land Cries Out “regrettably… was put into the schedule for playing on the afternoon of the 23 June at 3.30 pm”. This was despite the Head of Scheduling making “a note that we were not to schedule” this particular film. The broadcaster said that after it realised that the film was broadcast on 23 June 2009 “the programme was pulled from the schedule and has not been broadcast again”. The broadcaster said the programme has been destroyed from its ‘hard drive’ so that it cannot be repeated in any form.

Concerning specific Rules of the Code, the broadcaster made a number of points:

Rule 1.3: Children must be protected by appropriate scheduling

Concerning Rule 1.3, Revelation TV said there was a fifteen minute gap between the end of The Land Cries Out and the children’s programme R Kids.

Rule 2.1 and 2.3: Generally accepted standards and Offensive material must be justified by the context

Concerning Rules 2.1 and 2.3, Revelation TV said that it was “situated on the Sky platform in the Christian ‘genre’” and that viewers to such genre of stations will expect there to be a Christian basis to the programmes. In addition, the broadcaster said what constitutes harmful and/or offensive material is a “subjective matter” and that “Many programmes shown on other TV channels would be considered by Revelation TV viewers to contain harmful and/or offensive material. But they realise that they have to accept those images and words because they are acceptable to others. What is acceptable to one person may not be acceptable to another”.

The broadcaster said that whilst it recognised that abortion is legal in the UK, Revelation TV, in common with “the majority of traditional Christians” and most viewers who watch Revelation TV, believe that “in God’s eyes, abortion is murder and should not happen”. According to the broadcaster: “The film’s images were there to illustrate the views being expressed in the film, and not to cause shock or offence”. In summary, the broadcaster considered that The Land Cries Out had complied with Rules 2.1 and 2.3 because it: “dealt with a subject that is considered important by Christians; it presented the traditional Christian view; and it dealt with it from a moral and biblical perspective”.

Rule 5.5: Due impartiality on matters of political controversy

Concerning Rule 5.5, the broadcaster said that it “does not consider abortion to be a matter of political or industrial controversy, as defined in Rule 5.5. Rather it believes it is a moral issue”. Revelation TV considered that: all the main political parties contain those who support, and those who oppose, what can be stated as being the Christian view on this matter; that the channel, as a Christian broadcaster “has an obligation to present the issues concerning abortion”; and The Land Cries Out had made clear that abortion is legal in the UK, US and Israel.

In conclusion, the broadcaster said that it gave ample opportunity to debate issues such as abortion through its live interactive programming. In particular, it said that on the day of the broadcast of The Land Cries Out “there were two live, one and a half hour programmes, where viewers were able to discuss the subjects of their choosing by email texting, and live phone call to the studio”.

Decision

Ofcom recognises that broadcasters cover issues in their programming that raise strong opinions. This will include such matters as abortion that is widely perceived to have a moral dimension, about which advocates of different religions will have strong views. It is therefore not surprising that broadcasters aimed at a religious audience, should wish to cover the issue of abortion. Ofcom recognises that, in so doing, such broadcasters are exercising their right to freedom of expression, which includes the freedom to hold opinions and receive and impart information and ideas without interference by public authority (-3-). Broadcasters must be permitted to deal with controversial issues and images so long as the material complies with the requirements of the Code such as scheduling, the application of generally accepted standards and due impartiality.

Therefore, broadcasters should not be prohibited from transmitting potentially offensive material or controversial subject matter which may elicit strong divergent views amongst the audience. Further, it should be noted that the manner in which a subject is covered is an editorial decision for the broadcaster.

In this case, a Christian broadcaster transmitted a film on the subject of abortion from a strongly anti-abortion perspective. Given the known position of many sections of the Christian community against abortion, Ofcom acknowledges that it would be unsurprising if such a programme (i.e. one showing an anti-abortion perspective) might be broadcast on a channel of this kind.

However, Ofcom had two broad areas of concern about the programme:

Firstly, Ofcom noted that collectively the Images consisted of depictions in photographic form of late-stage aborted foetuses. Ofcom therefore had to consider whether by broadcasting the Images, Revelation TV had failed to ensure that people under eighteen were protected, and generally accepted standards were maintained.

Second, given that the programme was touching on and discussing Governmental and international policy on abortion, Ofcom had to consider whether Section Five of the Code (concerning due impartiality) was engaged, and if so, whether due impartiality was maintained on a matter of political or industrial controversy or matter relating to current public policy.

The Images

Ofcom considered the Images collectively as being highly problematic, with real potential to cause harm and offence, including harm to any children watching.

Firstly, the Montages consisted of extremely graphic still photographs showing full images of different late stage aborted foetuses outside of the womb. These images included severed body parts including heads and limbs. Given the very explicit nature of these photographs, and the length of time they were visible to viewers, Ofcom considered the Montages had the greatest potential to cause harm and offence, including harm to any children watching. There were similar concerns about the graphic nature of the Flash Frames which included some of the same stills in the Montages.

Rule 1.3: Children must be protected by appropriate scheduling

This programme was broadcast well before the 9pm Watershed, and in fact, at a time when children would be arriving home from school. It also was broadcast only a short time before one of Revelation TV’s programmes aimed at children ( R Kids). Ofcom therefore considered that there was a material chance that some children might be in the audience for The Land Cries Out. Ofcom considered that the strength and highly graphic nature of the Images were totally unacceptable to be broadcast at a time when children might have been watching. The highly graphic nature of the Montages in particular, would have had, in Ofcom’s opinion, the likely potential to have caused distress and upset amongst any child viewers exposed to such material. As a consequence, Ofcom considered the content to be in breach of Rule 1.3.

Rule 2.1 and 2.3: Generally accepted standards and Offensive material must be justified by the context

In relation to generally accepted standards, under the Code, there is no absolute prohibition on offensive content being broadcast. Ofcom recognises that a broadcaster may transmit content, including images, which might have the potential to cause offence, so long it is justified by the context. Ofcom recognised that this programme was shown on a Christian channel, where a programme taking a position that was strongly against the act of abortion, would not, in general, have gone beyond the likely expectation of the audience for this channel. Ofcom also noted that Revelation TV is classified by Ofcom as a “specialist religious” broadcaster. As Ofcom’s Guidance Notes on Section 4 of the Code states, broadcasters: “who wish to label their output more clearly as religious, [and/or] who wish to proclaim or expound their doctrines and beliefs at the lowest risk of giving offence…usually apply for a specialist religious licence”.

Ofcom noted Revelation TV’s statements about its moral position on abortion and further the channel’s assertion that many of its viewers find material broadcast on other channels harmful and/or offensive. However, Ofcom’s duty is to ensure that generally accepted standards are applied across all of its licensees. In this case, Ofcom considered that: audience expectations; the broadcaster’s perspective on the a subject of abortion; and the specialist religious determination of the channel could not act in mitigation for the broadcast of pictures of aborted foetuses and the process of abortion, especially in the case of the Montages broadcast at this time. In applying generally accepted standards broadcasters must understand that the audience expect that the most potentially offensive material would be broadcast much later in the schedule and certainly not before the watershed. Further, and importantly, the broadcaster failed to give any information to the audience about the contents of this programme.

Therefore, Ofcom considered that a combination of the Images, and in particular, the Montages, could not be justified by the context given the time of broadcast and the failure to provide adequate information, and were, therefore, in breach of Rules 2.1 and 2.3.

Rule 5.5: Due impartiality on matters of political controversy

Outside of news programmes, under Section Five of the Code, broadcasters must ensure that they preserve “due impartiality” on matters relating to political or industrial controversy or matters relating to current public policy. However, just because a broadcaster is dealing with a subject, such as abortion, which elicits strong opinions and reactions amongst people, does not automatically mean that Section Five is engaged. In addition, when interpreting due impartiality, Ofcom must take into account the requirements of the Convention, which includes 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.

However, the broadcaster’s right to freedom of expression is not absolute and broadcasters must always comply with the Code. Ofcom therefore 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.

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.

During the programme, Ofcom noted there were various references to the law on abortion in the UK, the US and Israel. In this case, Ofcom considered that there were a number of examples in the programme of statements which discussed the policy on, and desirability of abortion. In these examples, strong opinions were expressed about the legal situation concerning abortion in the UK, the US, and Israel, and at the level of the UN. In particular, the programme commentary and several interviewees variously: gave interpretations of what the practical effects of legalised abortion are; described what they saw as the defects of the legislation pertaining to abortion in different jurisdictions; and described their efforts to lobby to change legislation or judicial decisions relating to abortion. In this way, Ofcom therefore considered that the programme was dealing with a matter of political or industrial controversy or a matter relating to current public policy.

For example, the following statements within the programme:

The UK

Andrea Minichiello Williams (Director, Christian Legal Centre) said the following at different times:
 
“ And what we found was this: because there was permissive legislation, legislation which actually allowed for abortion, it then became essentially abortion on demand despite these huge restrictions.” (-5-)

“ And what we did in legislation is that we crossed a clear moral boundary…that very crossing of the boundary has meant that we are taking lives in their thousands but it’s in our law.”

David M. Noakes (former lawyer) said:

“ By legalising abortion in 1967, we turned abortion from an individual sin into a national sin and the whole nation is implicated. Therefore the whole nation is now responsible for the shedding of the innocent blood of millions of unborn children.”

The programme commentary stated:

“ In the United Kingdom, the legislation of abortion was intended to protect women from the dire consequences that often result from back-yard operations. However, like other countries, official statistics show there has been a massive escalation in the number of abortions.”

Peter Smith (SPUC Evangelicals and the International Right to Life Federation) said:

“ I believe the legislation of abortion in 1967 was probably one of the most disastrous times for the United Kingdom…It has affected the whole fabric of British society.”

The US

Allan Parker (the Justice Foundation) said:

“ In the year 2000, we began to have the opportunity to represent Norma McCorvey, who was ‘Roe’ of Roe v Wade, the main legal case that brought abortion to America in 1973. And we also began to represent Sandra Cano, who was ‘Doe’ of Doe v Bolton, which was a companion case to Roe v Wade. And together in January 1973, those two cases were decided by the United States Supreme Court and legalised abortion on demand up to the point of birth, including partial birth abortion.”

Wiliam Koenig (the Watch Foundation) said:

“ Abortion’s violence. It’s violence inside the mother’s womb…And from the time of Roe versus Wade, and from the time that abortion was allowed in America, we have seen violence increase exponentially from that point of Roe versus Wade. I believe there is a direct connection.”

Israel

The programme commentary said:

 “ There is a small band of pro-life young Israelis who are demonstrating against what they see as a culture of death. Among them is a nineteen-year old Messianic Jew called Joel Jelski.”

 This was followed by Joel Jelski (Bound4life), saying:

“ We do what we call ‘sieges’: It’s pretty much where we stand in front of abortion clinics, the Parliament - the Knesset – and we pray…We believe that prayer is what is going to change things in this nation.”

Later in the programme, concerning the policy, reported in the programme, of the Israeli army paying for female soldiers to have up to two abortions, Joel Jelski said:

“ I believe that God despises abortion. And the very army that was created to protect Israel is destroying it. So many abortions are coming through the army and so many lives are being destroyed. Immorality is rampant in the army because it’s supported by those laws that say: ‘you can have an abortion if you are immoral, we don’t care’. And it’s destroying the very thing, the idea it was created for: to protect lives, and to protect Israel, the Jewish Nation.”

Joel Jelski also said, indicating one of the walls built to divide communities in Israel:

“ Well, you only have to look behind me to the wall to see the demographic problems that have been caused by abortion.”

United Nations

The programme commentary said:

“ Meanwhile, the United Nations has an agenda for globalising abortion on demand.”

This was followed by Peter Smith (SPUC Evangelicals and the International Right to Life Federation), saying:

“ They’re trying to make abortion a universal human right and most of the countries of the world don’t have legalised abortion. They don’t think killing their children is a really good thing. So there’s a lot of resistance to it. But Britain’s leading the pack there, especially with the EU, and trying to push it through, along with a lot of other depraved stuff. But the compliance committees for all the different conventions have been taken over by people who are totally pro-abortion and have invented this universal right to abortion. And they have been pressurising about sixty nations to legalise abortion. And a couple have but most of them have held out. But the UN is doing a lot of dreadful things in this regard.”

Ofcom considered that the inclusion of such statements do not in themselves cause an issue under the Code, as long as the broadcaster ensured that due impartiality was maintained. However, having reviewed the programme, Ofcom noted that The Land Cries Out contained no opinions or viewpoints that could be portrayed as being from a pro-abortion stance. Further, Ofcom noted that Revelation TV could not point to any specific examples as to how due impartiality had been maintained in editorially linked programmes, dealing with the issue of abortion, within an appropriate period and aimed at a like audience. Given the above, Ofcom therefore considered the programme to be in breach of Rule 5.5.

Conclusion
Ofcom considered these breaches of the Code to be serious. This was especially the case given past regulatory action against Revelation TV (-6-). Broadcasters have the right to transmit a range of material, some of which might be both offensive to some as well as highly emotive or controversial. However, in doing so, broadcasters must comply with the Code at all times. In particular, all broadcasters must ensure that: material is appropriately scheduled and labelled; offensive content is justified by the context; and due impartiality is maintained on matters of political and industrial controversy and matters relating to current public policy.

Breach of Rules 1.3, 2.1, 2.3 and 5.5

Footnotes:

  1.- During the programme, the Montages were shown for separate periods of: approximately 12 seconds; approximately19 seconds; and approximately 3 seconds. 

  2.- These “flash frames” were brief shots of aborted foetuses which lasted less than a second.

  3.-As enshrined in Article 10 of the European Convention on Human Rights (“the Convention”).

  4.- See http://www.ofcom.org.uk/tv/ifi/guidance/bguidance/guidance4.pdf

  5.- The UK 1967 Abortion Act allows abortions under exceptional circumstances e.g. if the mother’s life is at risk.

  6.- See Bulletin 85, World in Focus and R Mornings, Breach of Rules 2.3 and 5.5; and Bulletin120, Vision for Israel, Breach of Rule 4.1.

In Breach

Sky HD cross-promotions featuring the Ashes series
Various Sky channels, 27 May to 27 June 2009, various times

Introduction

Under Ofcom’s rules television broadcasters are able to place items in their schedules promoting their own ‘broadcasting-related services’ without such promotions being subject to the limits on maximum permissible advertising time. These items are known as cross-promotions and are for most purposes regulated under a specific Ofcom Cross-promotion Code (“the Cross-promotion Code”) and, in respect of their content, under Ofcom’s Broadcasting Code.

Since cross-promotions essentially seek to promote broadcasting-related services, they may contain claims about those services. Therefore, where relevant, cross-promotions have to comply with the rules in the BCAP Television Advertising Standards Code (“the TV Advertising Code”) (-1-). In particular Ofcom has publicly stated that this will be the case where, for instance the issue of misleading material arises.
 
Between 27 May and 27 June 2009, Sky ran a cross-promotion (-2-) on many of its channels for its sports service available in high definition (HD). The cross-promotion encouraged viewers to subscribe to the service to watch the then forthcoming Ashes cricket series, which was to begin on 8 July 2009 and finish on 24 August 2009.

The cross-promotion was 30 seconds long. Former England captains Sir Ian Botham and Nasser Hussain were shown talking about the sporting importance of the Ashes, the high quality of Sky’s cricket coverage and how the sharpness of HD pictures enhances that coverage. The first 20 seconds showed cricket being played or Botham or Hussain speaking; the final 10 seconds was a sequence showing the Sky Sports HD channel logo, a Sky logo and the line “believe in better” against a black background.

During the final sequence a voice-over originally said: “…For the first time ever watch the entire Ashes series live in high definition with Sky Sports HD...” (this was subsequently edited – see Response section below).

Six viewers complained to Ofcom that when they had contacted Sky after seeing the cross-promotion they had been told that the HD service could not be provided in time for them to watch the Ashes series. The complainants therefore considered the cross-promotion to be misleading.

Ofcom sought Sky’s comments on how the cross-promotion complied with the following rules of the TV Advertising Code:

Rule 5.1.1:       “No…[cross promotion]… may directly or by implication mislead about any material fact or characteristic of a product or service”.

Rule 5.1.2:       “No …[cross promotion]… may mislead by omission about any material fact or characteristic of a product or service…”.

In particular Ofcom drew the licensee’s attention to note (2) of the notes that accompany these rules and which makes clear that availability is a relevant consideration for misleadingness:

“(2) [The content]…is likely to be considered misleading if, for example, it contains a false statement, description, illustration or claim about a material fact or characteristic. Material characteristics include price, availability and performance. Any ambiguity which might give a misleading impression must be avoided.”

(Extract from notes to Rules 5.1.1 and 5.1.2)

Response

Sky explained that consumers who wish to purchase its HD service can be divided into three groups:

  1. existing Sky customers who already have a Sky+ HD box [a type of Sky set-top box necessary for displaying HD channels] but have not subscribed to the HD service;
  2. existing Sky customers who have a non-HD capable Sky box; and
  3. consumers who do not already subscribe to Sky.

Those in group (i) can have HD services enabled in a matter of hours, Sky said, and those in group (iii) would have had an installation within seven days.

However, the demand from consumers in group (ii) – existing Sky customers who would need an upgraded box – was sufficiently great that Sky had introduced a pre-registration process. Under this process Sky collected customers’ information and contacted them periodically to let them know how long Sky estimated it would be before an order could be placed for their HD box. Once an installer in a customer’s area was available Sky invited the customer to complete and pay for their Sky+ HD order.

How long a customer would have to wait within the pre-registration scheme depended on a number of factors, including the customer’s location, engineers’ availability and the demand for HD boxes in the customer’s area.

Sky said that when it had become aware that some customers joining the pre-registration process may not be installed in time for the start of the Ashes, it had added superimposed text to the cross-promotion saying: “Pre-registration required and installation may happen after the Ashes has started. ” This text was added on 6 June 2009 and ran until 27 June 2009, when the campaign finished.

At the same time the text was added Sky also altered the cross-promotion’s voice-over so that “entire” was omitted from the original wording: “…For the first time ever watch the entire Ashes series live in high definition with Sky Sports HD...”

There were therefore two versions of the cross-promotion. The earlier one ran from 27 May to 6 June 2009 without the warning text and included the word “entire” [Ashes series] in voice-over. The later version ran from 6 June to 27 June 2009 with the additional text and with the word “entire” removed.

In addition, Sky commented that it had invested substantially in extra engineers before January 2009 when an HD promotion was introduced and that, subsequently, resources had been re-directed to areas with greater demand. Because of this, Sky said, the waiting times for many customers in the pre-registration process dropped significantly in early June so that customers who were initially advised of relatively long waiting times in May were actually installed much sooner. Therefore, according to Sky, it was possible that a number of complainants would have received installations in time for the Ashes series.

Decision

In light of the problems experienced by some customers in getting an HD sports service in time for some or all of the Ashes, Ofcom did not consider either of the versions of the cross-promotion to be acceptable. Figures requested by Ofcom from Sky showed that the number of customers who could not be installed in time for the start of the Ashes or in some cases in time for any of the series was, in Ofcom’s view, a small but importantly significant minority.

This minority was confined to existing Sky customers who did not have an HD capable set-top box, i.e. to those in group ii) as explained in the Response section above.

The cross-promotion clearly stated that viewers would be able “For the first time ever watch the [ entire] Ashes series live in high definition with Sky Sports HD...” Ofcom judged Sky’s inability to fulfil in time all the demand created to be prima facie evidence of both versions of the cross-promotion being misleading.

We did not consider the changes made to the promotion (the removal of the word “entire” and the addition of a ‘disclaimer’) to have overcome the problem for the later part of the campaign. Other than the end logos, all of the images used in the cross-promotions concerned the Ashes coverage and emphasised the benefits of watching the matches in high definition. Similarly, virtually all of the audio used in both promotions, whether spoken to camera or presented in voice-over, referred to the Ashes coverage. Because of this, the effects of adding the text and removing the word “entire” were not, in Ofcom’s view, sufficient to overcome the overall impression that HD coverage was available in time for the Ashes to anyone who requested it.

In respect of the ‘disclaimer’, Ofcom took account of the ASA’s published guidance (-3-) that:

“The principal offer and any important qualifications to it should not normally appear only in the form of superimposed text…

Superimposed text may be used to expand or clarify an offer or to make minor qualifications. It may also be used to resolve minor ambiguities. Superimposed text that flatly contradicts a claim made elsewhere in the advertisement is not acceptable.”

(Paragraphs 2a and b of Advertising Guidance Note No. 1 of the BCAP Advertising Guidance Notes)

Ofcom therefore concluded that both versions of the cross-promotion were in breach of the TV Advertising Code.

Breaches of Rules 5.1.1 and 5.1.2 of the BCAP Television Advertising Standards Code

Footnotes:

  1.- BCAP is the Broadcast Committee of Advertising Practice. BCAP is the code administrating arm of the Advertising Standards Authority (ASA). Ofcom has contracted out its advertising control function to the ASA. Ofcom has put on record that it will apply the TV Advertising Code to cross-promotions where appropriate – see paragraphs 7.27 and 7.28 of the Ofcom Regulatory Statement Review of the cross-promotion rules, available at: http://www.ofcom.org.uk/consult/condocs/promotion/statement/statement.pdf.

  2.- An edited version of the cross-promotion was aired from 6 June to 27 June – see further below.

  3.- Available at: http://www.cap.org.uk/NR/rdonlyres/566E8E1B-D3C7-45DB-9E6D-84A9478FF1B1/0/BCAP_Advertising_Guidance_Notes.pdf

In Breach

Costa Coffee sponsorship of competitions in breakfast shows
Kiss 101, Key 103, Forth One, 18 to 27 March 2009, various times

Introduction

Costa Coffee sponsored competitions in breakfast shows on three Bauer-owned radio stations (Kiss 101, Key 103, Forth One). Sponsor credits used in trails for the competitions and in the competitions themselves contained the claim:

“7 out of 10 coffee lovers prefer Costa coffee”.

(The Code allows legitimate advertising claims in sponsor credits on radio but not in those on television.)

Starbucks complained to Ofcom that the claim was unqualified and could not be supported. It asserted that the meaning of the claim could be understood as a preference claim against all coffee drinks or even more widely as a claim against all aspects of its business, so including such things as “store ambiance”. Starbucks therefore objected that the claim could not be substantiated in respect of coffee preference or of other features of Costa’s business.

Starbucks said that the tasting trial commissioned by Costa Coffee (which was the source of the claim and detailed on Costa Coffee’s website) had been limited to preferences expressed about cappuccino coffee alone, a drink that represents just a small proportion of coffee sales. The trial examined no other aspects of coffee retailing (whether the preference for other types of coffee or for stores themselves).

Starbucks further objected that, whether interpreted as a preference claim for coffee drinks or more widely, the claim was also unqualified as who the comparison was made against. It considered that such a wide claim ( “7 out of 10 coffee lovers prefer Costa coffee”) would need to be justified against all other outlets, whether chains or independent traders, yet the taste test had tested cappuccino drinks from Costa Coffee against only two competitors, one of them Starbucks.

Rule 9.3 of the Code states:

“Sponsorship on radio and television must comply with both the advertising content and scheduling rules that apply to that medium”.

Therefore advertising claims made in radio sponsor credits must comply with the BCAP Radio Advertising Standards Code (-1-) (“the Radio Advertising Code”).

In this case the relevant rules are those that address misleading claims – Section Two, Rule 3 of the Radio Advertising Code – and fair comparisons – Section Two, Rule 6. These rules’ requirements include a provision that:

In particular:

a) [Sponsorship credits]… must not contain any descriptions, claims or other material which might, directly or by implication, mislead about the product or service advertised or about its suitability for the purpose recommended.

b) [Sponsorship credits]…must clarify any important limitations or qualifications, without which a misleading impression of a product or service might be given;

c) Before accepting …[sponsorship credits], Licensees must be satisfied that all descriptions and claims have been adequately substantiated by the advertiser. A half-truth, or a statement which inflates the truth, or which is literally true but deceptive when taken out of context, may be misleading for these purposes. Ambiguity in the precise wording of advertisements and in the use of sound effects must be avoided.

(Extract from Section Two, Rule 3)

And:

[Sponsorship credits]…containing comparisons with other advertisers, or other products, are permissible in the interest of vigorous competition and public information provided that:

a) the principles of fair competition are respected and the comparisons used are not likely to mislead listeners about either product;

b) points of comparison are based on fairly selected facts which can be substantiated;

c) comparisons chosen do not give the advertiser an artificial advantage over his competitor;

(Extract from Section Two, Rule 6)

Ofcom sought Bauer’s comments on how the “7 out of 10 coffee lovers prefer Costa coffee” claim complied with these rules.

Response

In its response, which included a submission from Costa Coffee, Bauer told us that the “7 out of 10…” claim was included in sponsor credits in pre-recorded trails on the three stations concerned, but not in credits in trails that had been read out live. The claim was also made in the sponsor credits included in ‘set-ups’ (introductions) to the competitions.

Bauer explained that the scripts used were cleared in-house (i.e. not sent to the central radio advertising clearance body (-2-)) and substantiation assembled. The licensee stated that it had studied the supporting research provided to it by the sponsor and reassured itself that the sample size of the research was satisfactory and that it was a robust survey, and that the company conducting the survey was experienced in this form of test. (The test survey was commissioned by Costa Coffee from a research firm, Tangible. It was conducted in three locations in the UK, the tests scored preferences was for only cappuccino drinks from Costa against only Starbucks and one other. The sample size of self-defined ‘coffee lovers’ within the tests was 174.)

Bauer said (as did Costa in its submission via the licensee) that advice had been sought on the non-broadcast advertising from the ASA’s pre-publication advisory unit.

Within the limited time available for the sponsor credits, the licensee said, it did not have the room to include supporting information to qualify the claim. But throughout the campaign the licensees’ websites carried further information on the promotion and included full details of the research carried out by the sponsor. Although none of the trails or competition sponsor credits referred listeners online for more information, Bauer told us, all of its stations’ websites are continually promoted on-air as the destination to find out more information about promotions and other editorial elements.

Bauer therefore believed the sponsorship campaign to have been compliant with the Code.

Decision

The claim in the sponsorship credit that “ 7 out of 10 coffee lovers prefer Costa coffee” was not qualified in any way (though important qualifications and details of the ‘taste test’ existed on Costa Coffee’s website).

Costa’s tests were plainly based on a subjective and limited assessment by the test subjects of one coffee drink. (See Response section above for a description of the test.) Given these limitations of the trial, we do not consider that an unqualified claim such as “ 7 out of 10…prefer Costa coffee” could be made without appropriate qualification to the claim itself and accompanying explanatory detail.

Where claims require such qualification it is not sufficient to rely on these being placed on websites or in other places away from the broadcast sponsor credit: the claim itself must be qualified.

Ofcom therefore judged the claim to be unsubstantiated and so to have breached Rule 9.3 of the Code, with reference to Section Two, Rule 3 and Section Two, Rule 6 of the Radio Advertising Code.

Footnotes:

  1.- BCAP is the Broadcast Committee of Advertising Practice. BCAP is the code administrating arm of the Advertising Standards Authority (ASA). Ofcom has contracted out its advertising control function to the ASA.

  2.- This body is the Radio Advertising Clearance Centre (RACC). While certain categories of advertising require mandatory clearance by RACC before transmission, that condition did not apply in this case.

Breach of Rule 9.3
Breach of Section Two, Rule 3 and Section Two, Rule 6 of the BCAP Radio Advertising Standards Code

In Breach

XXX Channel AKA - Playtime Two, Giggs Featuring Kyze
Channel AKA, 25 June 2009, 22:45 approximately

Introduction

Channel AKA is an urban music channel whose licence is held by Mushroom TV Limited (“Mushroom TV”). The channel is available without any access restrictions. XXX Channel AKA is part of the channel’s late night programming, broadcast between 22:00 and 05:30. The programme features music videos of a more adult nature containing stronger images.

A viewer complained about the broadcast of the music video ‘Playtime Two’ by Giggs Featuring Kyze, which featured material of a sexual nature. The complainant considered the sexual material broadcast in this video too strong to be available at approximately 22:45 and on this channel. Ofcom noted that the video included: frequent shots of naked breasts; women wearing revealing thongs and pulling at their underwear to expose genital detail; women touching their breasts and genital area in a sexual manner; women squirting water and licking whipped cream off each other’s naked breasts; frequent shots between women’s legs (while wearing thongs); frequent close up shots of female buttocks (while wearing thongs); a brief shot of a woman pulling her buttocks apart to show anal detail; and a man simulating sexual stimulation between a woman’s legs.

Ofcom asked Mushroom TV 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 said that it did not consider the content of the music video exceed generally accepted standards. It stated that XXX Channel AKA is broadcast post-watershed, between 22:00 and 05.30, and includes adult-oriented music videos primarily from the urban music genre. It highlighted that the music video complained of was broadcast at 22:45. Mushroom TV continued that the programme title XXX Channel AKA was clearly labelled both onscreen during the broadcast and on the Electronic Programme Guide. It also said that the channel is aimed at an adult audience and has low child audience figures.

However, in response to the complaint, Mushroom TV stated that it has now withdrawn the video broadcast on 25 June 2009 from the late-night playlist and will replace it with an edited version.

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 sexual imagery broadcast in this particular music video, 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 and compliance with the Code.

Ofcom appreciates that music videos are an artistic and creative medium, which can and do sometimes contain challenging content which some may find offensive. It recognises that the music video in this case was transmitted after the watershed during Channel AKA’s late night programming, which is aimed at an adult audience and features material of a more adult nature. In addition Ofcom recognises that the programme title ( XXX Channel AKA) would have provided some indication to viewers regarding the type of content included in the programme. Given these factors, Ofcom considered that there would have been a certain amount of audience expectation for the broadcast of more challenging material during this particular programme. In taking its decision Ofcom also had regard to the broadcaster’s and the audience’s right to freedom of expression under Article 10 of the European Convention on Human Rights.

Ofcom was concerned by the strong sexual imagery included in the ‘Playtime Two’ video and in particular the time of broadcast. This video contained frequent shots of naked breasts; women touching their breasts and genital area in a sexual manner; women licking whipped cream off each other’s breasts; and a man simulating sexual stimulation on a woman. In Ofcom’s view, given the strength of the material and the time of broadcast Ofcom did not consider that the broadcaster had applied generally accepted standards. In Ofcom’s opinion, despite the title of the programme and the later evening scheduling, Ofcom considered that this particular material would have exceeded audience expectations for a music programme of this nature broadcast at 22:45 without any access restrictions on a music channel.

While taking into account the name of the programme and that it does include music videos of a more adult nature, it was Ofcom’s view that, on balance, the broadcaster did not apply generally accepted standards to this content and the material was not justified by the context. Therefore the material breached Rules 2.1 and 2.3 of the Code.

Breach of Rules 2.1 and 2.3

In Breach

UK Tings
Channel AKA, 13 June 2009, 07:00

Introduction

Channel AKA is an urban music channel whose licence is held by Mushroom TV Limited (“Mushroom TV”). Ofcom received 12 complaints from viewers regarding the broadcast of various music videos from 07:00 on a Saturday morning, during the programme UK Tings. The complainants said the videos contained material of a sexual nature, including sexual language, partial nudity, and women touching each other’s breasts. The complainants considered the videos to be inappropriate for broadcast at this time.

Response

The broadcaster said it was unable to provide Ofcom with a recording of the material because it experienced a “faulty physical connection”. It did state, however, that it was likely that such material was broadcast at the times noted by the complainants. Channel AKA explained that the videos were scheduled in error after a temporary late night shut-down in transmission took place while new equipment was being installed.

The broadcaster said the problem has now been rectified and apologised for any offence caused. It said that it has broadcast a series of on-air apologies and written to all complainants who had contacted it directly to express its regret.

Decision

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

Ofcom has recently published a breach of Licence Condition 11 by Mushroom TV (-1-) regarding complaints made about similar content scheduled inappropriately on Channel AKA. Ofcom is therefore concerned that technical faults have resulted in the broadcaster failing to provide recordings on two recent occasions and that, by its own admission, inappropriate material was probably broadcast on this channel on 13 June 2009. Ofcom is concerned by the recent compliance record of Mushroom TV, and in particular Channel AKA, as regards failing to comply with Licence Condition 11 of its licence and will discuss this issue at a meeting with the licensee to review its compliance arrangements (-2-).

Ofcom puts Mushroom TV on notice that it must take all necessary and appropriate measures to ensure its channels comply with the Code in the future. If there are further breaches of Licence Condition 11 concerning Channel AKA, Ofcom will consider the imposition of a statutory sanction.

Breach of Licence Condition 11 (Retention and Production of recordings)

Footnotes:

  1.- Broadcast bulletin issue 135, published 8 June 2009: http://www.ofcom.org.uk/tv/obb/prog_cb/obb135/

  2.- Please see also the previous finding in this Bulletin concerning a music video containing sexual imagery broadcast on Channel AKA on 25 June 2009 which breached Rules 2.1 and 2.3 of the Code. 

In Breach

Bangla TV
29 May 2009

Introduction

Bangla TV (“Bangla”) is a general entertainment channel aimed at a Bengali-speaking UK audience. Ofcom received a complaint that a late-night broadcast by Bangla on 29 May 2009 contained unsuitable images of deceased flood victims. During its investigation into this complaint Ofcom experienced serious delays by Bangla in providing a recording of the programme and a translation of its content.

Between 8 June and 20 July 2009 Ofcom was in extensive and prolonged contact with Bangla asking for it to provide a recording and English transcript of the programme. During this period Bangla failed to meet a number of deadlines set by Ofcom and at one point provided a recording of the programme that was not ‘as broadcast’ (i.e. it did not contain any audio). An acceptable recording of the programme and corresponding English transcript was eventually received by Ofcom on 21 July 2009, over six weeks after the initial request for the programme recording was made. Ofcom’s procedures for the handling of complaints state that licensees should normally provide Ofcom with a copy of a recording it requests within five working days.

After reviewing the recording and translation Ofcom found that the broadcast did not breach the Code as the material was appropriately justified by context. However it wrote to Bangla on 24 July 2009 asking for it to provide formal comments as to how it complied with Condition 11 of its licence. This states that:

“ Retention and production of recordings
Section 325(1) and         
(2) of the Communications Act

(1)   The Licensee shall adopt procedures acceptable to Ofcom for the retention and production of recordings in sound and vision and of any programme which is the subject matter of a Standards Complaint …

Section 334(1) of the Communications Act

(2)   In particular, the Licensee shall:…
(b)   At the request of Ofcom forthwith produce to Ofcom any such recordings for examination or reproduction; and
(c)   At the request of Ofcom forthwith produce to Ofcom any script or transcript of a programme included in the Licensed Service which he is able to produce to it.”

Guidance Notes, Paragraph 69 states that (for a television licence of this kind): “The licensee must retain, or arrange for the retention of, recordings of everything included in the licensed service for a period of 60 days. If Ofcom requests of copy of any recording, the licensee must provide this forthwith. Recordings must be of a standard and in a format which allows Ofcom to view the material as broadcast. The licensee must also (where possible) provide Ofcom with scripts or transcripts of any material included in the service.”

Response

Bangla apologised for the delay in this case. It said that “as an ethnic broadcasting company we are managing our administration, main-control-room, and production with a limited number of staff”. It said that despite this “all staff are very serious (and trained) about compliance issues and the requirements of Ofcom, at all times”.

Bangla said that it had failed to provide the recording on 17 June and 9 July because the relevant staff member was sick. Notwithstanding this, it said it understood that it has an obligation to provide Ofcom with recordings on time. Bangla said that in the future it would be “more cautious and will try to extend our capacity” to ensure compliance with its licence requirements.

Decision

It is a condition of all broadcast licences that the licensee adopts procedures for the retention and production of recordings and supplies recordings to Ofcom “forthwith” if requested. Further, the recordings should be ‘as broadcast’ (i.e. the same quality in terms of both sound and picture as when originally transmitted).

Ofcom acknowledges that Bangla did eventually provide the requested material. However, this was only after numerous and time-consuming requests from Ofcom; the provision by Bangla of an incomplete recording; and, repeated failures to meet Ofcom’s stated deadlines. Further, Ofcom considered that some of the reasons for delay given by Bangla (for example that it did not receive Ofcom’s correspondence and was unable to deal with Ofcom’s request due to a combination of technical faults and staff illness) were unacceptable. It is the responsibility of all broadcasters to update Ofcom of any changes to its contact details in a timely way and to ensure that it has a sufficient number of staff (who are appropriately trained) to be able to carry out all its compliance responsibilities effectively. Clearly, a key function of any compliance team is to be able to respond to requests from Ofcom as and when they arise.

Taking these factors into account, Ofcom has found Bangla in breach of Condition 11 of its licence for failing to provide a requested recording in “as broadcast” quality and failing to provide the requested recording and transcript “forthwith”.

This is a serious and significant breach of the broadcaster’s licence and will be held on record by Ofcom. The actions of the broadcaster in this case were entirely unacceptable. Should these problems recur, Ofcom may consider further regulatory action.

Breach of Licence Condition 11 (Retention and Production of recordings)

In Breach

Most Haunted
Living 2, 21 July 2009, 11:00

Introduction

Most Haunted is a programme which shows a team of so-called investigators visiting locations where, in the past, according to the programme, there have been allegations of haunting. Ofcom received one complaint that this particular episode included a number of instances of the most offensive language being broadcast during daytime. Ofcom noted the programme contained sixteen uses of the word “ fuck” and “ fucking”.

Ofcom asked Virgin Media Television Limited (“Virgin Media”), which provides compliance for Living 2, for its comments under Rule 1.14 of the Code (the most offensive language must not be broadcast before the watershed).

Response

Virgin Media expressed its apologies for the programme being broadcast containing offensive language. It added that: it took the transmission of swearing on its channels during daytime hours “very seriously”; and where a programme containing offensive language is to be broadcast before the watershed, the broadcaster takes “careful steps to ensure that such content is suitably censored”.

Virgin Media said that this particular episode “was identified as being a post 2100 show due to the swearing, and as such had a language warning attached to the programme”. However, the broadcaster said due to human error the programme had been broadcast in the morning. The broadcaster added that following the broadcast, it had undertaken “further checks to this series to avoid a similar incident”. In addition, on air apologies were broadcast at the beginning and end of the edition of Most Haunted shown on the channel in the same time-slot the following week.

Decision

Ofcom’s research (-1-) confirms that most viewers find the word “ fuck” and its derivatives one of the most offensive words. To allow a programme containing sixteen uses of the most offensive language during daytime was a clear breach of Rule 1.14. To broadcast this language before the watershed was obviously unacceptable..

Ofcom welcomes Virgin Media’s apologies on screen and admission of the compliance error, and the steps it has taken to improve compliance procedures.
Ofcom remains very concerned however that this clear breach of Rule 1.14 was allowed to occur, especially in light of previous and recent published Findings against Living 2’s sister channels Bravo, Living and Virgin 1 (-2-). All of these channels, including Living 2, are owned by Virgin Media, which also provides compliance for them.

These cases also involved the broadcast of the most offensive language before the watershed. Ofcom is concerned that despite these previous Findings, Living 2’s compliance procedures were such that a further breach involving the repeated broadcast of the most offensive language during daytime should now be recorded against another channel owned and complied by Virgin Media. As a consequence, Ofcom is therefore requiring Virgin Media to attend a meeting with the regulator to discuss its compliance record and arrangements.

Footnotes:

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

  2.- See Dirty Cows, Living,Bulletin 100, 14 January 2008; Look Who’s Talking, Living, Bulletin 112, 23 June 2008; Brit Cops: Frontline Crime, Bravo, Bulletin 129, 8 March 2009; and To the Manor Bowen, Virgin 1, 12 July 2009, Bulletin 140.

Breach of Rule 1.14

In Breach

The Jeremy Kyle Show
ITV2, 2 July 2009, 14:35

Introduction

Jeremy Kyle presents a popular confessional talk show where members of the public discuss their personal problems in a frank and frequently confrontational manner. A viewer complained to Ofcom that one of the interviewees referred to his partner as a “fat, lazy cunt”. Ofcom wrote to ITV Broadcasting Limited (“ITV Broadcasting”) which holds 11 ITV licences and is responsible for the compliance of The Jeremy Kyle Show on behalf of the ITV network. Ofcom asked ITV Broadcasting to comment under Rule 1.14 (the most offensive language must not be broadcast before the watershed). Ofcom was particularly concerned in light of two fairly recent recorded breaches against ITV for the use of the same word in the Jeremy Kyle Show. (-1-)

Response

ITV Broadcasting said that the offensive language complained of occurred when two guests were talking across each other and, whilst it did not consider that it was readily audible, it accepted that it was possible to hear it. It said that this offensive language had been noted prior to broadcast and been edited out of the main programme. But, unfortunately, the same original exchange between the two guests was subsequently used in a brief ‘tease’ to be included in a different part of the programme, and this use of the offensive language was not spotted by the producer or editor responsible. It explained that ‘teases’ are added to the programme after the principal editing of the main programme has been completed. Two different compliance advisors viewed the programme before its original broadcast and another reviewed it before the repeat broadcast complained of, and none noticed the ‘tease’ included the offensive word.

ITV Broadcasting apologised and acknowledged that the word “cunt” is considered to one of the most offensive phrases by viewers and is not acceptable in a daytime talk show. It considered however that the fact Ofcom received only one complaint after three transmissions of the programme supported its view that it was not readily audible to most viewers. It considered that the two previous recorded breaches in relation to the use of the same word also occurred because the word was not clearly audible. However, to improve compliance processes further, ITV Broadcasting said it had introduced various changes. For example where in the past ‘teases’ have been prepared by a different production team members to those editing the main programme, individual producers will now be responsible for the content of all teases as well as the main programme, and material used in ‘teases’ will only be taken from pre-edited programme material.
 
Decision

The word “cunt” is a clear example of the most offensive language. Its use in a daytime talk show would be highly offensive and unacceptable, as ITV Broadcasting has acknowledged. A recording of the programme showed that while the word was audible, it did occur during a heated exchange between two guests talking over each other – and therefore may have been difficult to identify. Ofcom welcomes the statement by the broadcaster that it has now taken steps to tighten up its editing processes to avoid a recurrence.

However, this is the third instance during a period of just over one year where the most offensive language has been included in error in a daytime edition of The Jeremy Kyle Show. Whilst Ofcom acknowledges the broadcaster’s apology and the subsequent steps to improve compliance processes, the broadcast of such language before the 21:00 is a clear breach of Rule 1.14 and is unacceptable.

Breach of Rule 1.14

Footnotes:

  1.-http://www.ofcom.org.uk/tv/obb/prog_cb/obb128/issue128.pdf dated 23 February 2009 and http://www.ofcom.org.uk/tv/obb/prog_cb/obb113/Issue113.pdf dated 7 July 2008.

In Breach

Midlands Today
BBC1 (Midlands), 26 June 2009, 18:30

Introduction

This news bulletin featured a report on local rock bands. It contained footage of a band performing on stage with strobe lighting effects. No warning was given of these effects before the broadcast. Ofcom received a complaint from a viewer who after watching the report experienced a migraine, and, was concerned that the flashing images could have led to seizures in photosensitive viewers.

Certain types of flashing images can trigger seizures in viewers who are susceptible to photosensitive epilepsy (“PSE”). Rule 2.13 of the Code therefore states that:

“Broadcasters must take precautions to maintain a low level of risk to viewers who have PSE. Where it is not reasonably practicable to follow the Ofcom guidance…and where broadcasters can demonstrate that the broadcasting of flashing lights and/or patterns is editorially justified, viewers should be given an adequate verbal and also, if appropriate, text warning at the start of the programme or programme item”.

Ofcom requested a statement from the BBC in relation to Rule 2.13.
 
Response

The BBC said that footage of this nature is normally assessed prior to broadcast to ensure that it meets industry guidelines. On this occasion the report was not tested in the usual way because the senior picture editor, responsible for editing the report, believed the footage of flashing lights was acceptable. The BBC acknowledged that the footage did not comply with the appropriate standards and should not have aired without an appropriate warning. It said this was an unfortunate error of judgement, and apologised for any problems this may have caused viewers.

The BBC said it had sent a note to those staff members responsible for news output in BBC West Midlands, reminding them of the issues regarding PSE, and scheduled further training for the coming months. It said a warning would now be broadcast as a matter of course for all material that has potential to cause problems, such as flash photography at news conferences or music videos, and the relevant news report has been deleted from the library to ensure that it cannot be broadcast again by mistake.

Decision

Ofcom’s Guidance Note advises on the technical limits necessary for flashing images and is intended to minimise the level of risk to photosensitive viewers. All broadcasters should ensure that their technical teams are familiar with Ofcom’spublished guidance as regards flashing images.

Ofcom analysed the report complained of against the Guidance. We found that it contained six distinct sequences (totalling approximately 13 seconds) where the brightness, frequency and screen areas contained flashing which exceeded the limits as set out in the Guidance. The flashing was therefore clearly in breach of Rule 2.13.

In Breach Rule 2.13

Footnotes:

  1.- The Guidance states that a potentially harmful flashoccurs when there is a pair of opposing changes in luminance (i.e. an increase in luminance followed by a decrease, or a decrease followed by an increase) of 20 candelas per square metre (cd.m-2) or more. This applies only when the screen luminance of the darker image is below 160 cd.m-2. However, irrespective of luminance, a transition to or from a saturated red is also considered potentially harmful. In addition, a sequence of flashes is not permitted when the combined area of flashes occurring concurrently occupies more than one quarter of the displayed screen area and there are more than three flashes within any one-second period. Full published guidance available at: http://www.ofcom.org.uk/tv/ifi/guidance/bguidance/guidance2.pdf .

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