Broadcast Bulletin Issue number 147 07/12/09
The Big Top 40 Show, Various programmes, Win This Week with Sky, STV Business Briefing, Beauty Simplified, Various programmes, La Rixe, The Hotmix: Eminem, Drivetime, Baba Ji Online, Lazzat-e-Iftaar & various Fairness & Privacy cases ..... [more]
The Big Top 40 Show
Galaxy Manchester 102 FM, 28 June 2009, 16:00
The Big Top 40 Show is the current UK commercial radio network weekly chart show, featuring the Big Top 40 chart. The three hour programme is produced by Global Radio and broadcast on over 140 stations (owned by various radio groups) across the network.
Throughout the programme the Big Top 40 chart is regularly referred to as “the chart you can change”. Listeners are told that they may influence the top ten (known as “the iTunes top ten”) during the programme, by visiting the show’s website, bigtop40.com. The website features weblinks to the iTunes online store for the purchase of listed downloads before “lock down” (a little before 18:00) to influence the new top ten, which is played from 18:00 (-1-).
A Galaxy Manchester 102 FM listener was concerned about the number of references to iTunes made throughout the programme.
Ofcom noted repeated references throughout the broadcast to:
- listeners’ ability to influence the chart; and
- invitations (including direct calls to action) to download tracks via the show’s
website (before 18:00).
- “…The Big Top 40 Show … the chart you can change … you decide in real time … the Big Top 40 is the only chart powered by iTunes … this is the Big Top 40 – the only chart you can influence as we count it down. Get online right now to Big Top 40 dot com. When you download from our website, it directly affects the top ten … at five minutes past four, let’s check out the chart. This is the iTunes top ten … The Big Top 40 show. Download now at The Big Top 40 Show dot com”;
- “…powered by iTunes, the chart you can change…” ;
- “let’s check out the chart. This is the iTunes top ten…”;
- “You can download that now at Big Top 40 dot com”;
- “…you can help make that happen by downloading it now…”
We therefore asked Global Radio (“Global”), which owns Galaxy Manchester, for details of any commercial arrangement it had with any third party concerning the broadcast, together with its comments with regard to the following Code rules:
- 10.1 – Broadcasters must maintain the independence of editorial control over programme content;
- 10.3 – Products and services must not be promoted in programmes. This rule does not apply to programme-related material. (See Rule 10.6); and
- 10.4 – No undue prominence may be given in any programme to a product or service.
Global provided Ofcom with evidence to demonstrate that the agreement it had in place with iTunes involved no financial arrangement concerning the production of The Big Top 40 Show.
Global said that it referred on air to iTunes only to inform listeners that the top ten of the Big Top 40 chart was provided by iTunes (i.e. “ the iTunes top ten”), as this differentiated it from tracks 11 to 40 in the chart, the positions of which were informed by iTunes but ultimately decided by Global.
The broadcaster assured Ofcom that, while the download service provider enabled it to use iTunes’ music download sales data to compile the weekly chart, Global itself retained “absolute editorial control of the programme.”
Global added that “at least 95% of single sales are now digital, and … in the UK … 98% of all music downloads are via iTunes” and “given the ubiquitous nature of iTunes … it was the natural choice … from which to source chart data which most accurately reflects consumer behaviour.”
It said that The Big Top 40 Show was created to reflect the “far more instantaneous movement of the charts in the UK than ever before … and keep up to date with consumer behaviour.” By reminding listeners of their opportunity to change the chart in a more instantaneous way than previously possible, Global believed a new concept of the Big Top 40 chart was being made clear to them. In addition, the broadcaster believed that its references to the chart being “ powered by iTunes” put this new concept into “editorial context for the listener.”
Global argued that iTunes data were used to inform the chart programme in the same way as other data providers informed previous radio chart programmes. Similarly, it argued that “calls to influence the chart remind listeners to interact with the programme and impact the chart itself, on an instantaneous basis” and are “no different to someone encouraging listeners to influence the traditional format chart by buying records throughout the week.”
The broadcaster said that the Big Top 40 website, to which listeners were referred (to influence the Big Top 40 chart) was directly derived from the programme and allowed listeners to interact with it. Global therefore considered that the Big Top 40 website was programme-related material and the references to it in the programme were editorially justified.
In conclusion Global summarised that it believed the aired references to iTunes were editorially justified and duly prominent, as:
- iTunes was the chosen (and most appropriate) data supplier of the chart;
- it was iTunes’ “infrastructure” that enabled listeners to affect the outcome of the chart;
- the “iTunes top ten” had to be differentiated from the rest of the Big Top 40 chart, which is not solely based on iTunes’ data; and
- the chart was “a new concept and must be put into editorial context for the listener.”
Having assessed the evidence available to it, Ofcom was satisfied that the broadcaster had maintained independent editorial control (Rule 10.1).
A radio chart show based on (or influenced by) download data reflects the contemporary singles market. We note Global’s point that the principle proprietary download service provider in the UK is iTunes. Ofcom therefore accepts that iTunes was an appropriate source of data from which to compile a download chart.
Ofcom acknowledges that on-air encouragement for listeners to influence the chart “on an instantaneous basis” (by purchasing downloads via the show’s website), and therefore interact with the programme, has some parallels with the encouragement historically broadcast to influence previous traditional format radio charts (by purchasing records in the coming week).
However, Ofcom noted three significant differences between this instance and previous radio charts based on record sales. In this case, encouragement to influence the chart:
- was directly solicited (e.g. “ Download now at The Big Top 40 Show dot com” and “ You can download that now at Big Top 40 dot com ”), as opposed to being implied or referred to in passing;
- had become a central feature of the chart show, as the mechanism by which its editorial format was achieved; and
- involved the sale of products (downloads) and the service supplied by only one provider (iTunes) rather than all retail outlets selling records.
Under Rule 10.3 of the Code, products and services must not be promoted in programmes. However, this rule does not apply to programme-related material, which may be promoted in programmes only where it is editorially justified (Rule 10.6). Programme-related material is defined in the Code as “…products or services that are both directly derived from a specific programme and intended to allow listeners … to benefit fully from, or to interact with, that programme”.
In this case, Ofcom noted that Global considered the website, bigtop40.com, to be directly derived from the programming, and that the ability to buy downloads via the site enabled listeners to interact with the programming. In Global’s view, on-air references to the website therefore constituted legitimate programme-related material. It was therefore Global’s belief that on-air encouragements to listeners to influence the chart by downloading tracks at bigtop40.com amounted to editorially justified promotions.
Ofcom accepted that the website bigtop40.com was directly derived from The Big Top 40 Show. Furthermore, the website allowed listeners a form of interaction with the programme, to the extent that they could follow the weblinks at the website to buy downloads, which then influenced the position of tracks within the Big Top 40 chart, thereby determining the contents of the show. However, Ofcom noted that this was facilitated at bigtop40.com by means of purchasing downloads from iTunes through direct weblinks to the online iTunes Store. It was Ofcom’s view that, ultimately, bigtop40.com effectively appeared to be a ‘portal’ for the purchase of iTunes downloads.
iTunes downloads could not meet the definition of programme-related material under the Code (Rule 10.6). The downloads were iTunes products that could be purchased through the iTunes download service. Both the downloads themselves and the service by which they were acquired existed separately from The Big Top 40 Show, and were not therefore directly derived from it.
Section Ten of the Code is based on a range of specific provisions in European television broadcasting legislation – the Television Without Frontiers Directive – such as the separation of advertising and programming, and restrictions on advertising minutage. Although radio licensees must comply with Section Ten of the Code, in reaching a decision in this particular case, Ofcom took into account that the European legislation does not apply to radio broadcasts.
Ofcom also took into account the specific circumstances in this case, namely that Global had updated a traditional approach to radio chart show programming to make it relevant to the contemporary digital “interactive” environment. In addition, it appeared that, for The Big Top 40 Show’s target audience (i.e. younger listeners who are most likely to purchase downloads), the fact that a significant majority (-2-) of all music downloads are via iTunes was likely to have made the brand synonymous with the service it provides. On balance, therefore, Ofcom considered the bigtop40.com website to be programme-related material and the inclusion of references to bigtop40.com and to listeners’ ability to influence the chart to be editorially justified, in the circumstances of this particular radio format.
However, Ofcom was concerned by the nature of many of the references to bigtop40.com – in particular, where they directly solicited the purchase of downloads (for example: “You can download that now at Big Top 40 dot com”). On some occasions such references were made within clear calls to action to purchase specific downloads (for example: “Download now at The Big Top 40 Show dot com”).
As set out above, Ofcom noted that it was, in fact, only possible to download the tracks in question by following the weblinks at bigtop40.com to the iTunes online store. Ofcom also noted that the direct solicits and calls to action did not specify iTunes as the provider of the downloads or the download service. Nevertheless, given that a significant majority of UK singles downloads are made via iTunes, Ofcom considered that the brand itself was likely to have become synonymous with the service it provides. Further, Ofcom considered that as a result of the other information provided about the format in the programming, it was likely to have been obvious to listeners that the downloads were iTunes products, downloaded via the iTunes service. Given that the downloads themselves were not programme-related material, Ofcom concluded that these direct solicits and calls to action amounted to a promotion of products (i.e. iTunes downloads) and the iTunes download service itself. These references were therefore in breach of Rule 10.3 of the Code.
Ofcom was also concerned about the manner and frequency of references to iTunes made throughout the programme.
Ofcom accepted that reference to “the iTunes top ten” was editorially justified as a means to explain the specific source and nature of the Big Top 40 chart’s top ten places. Likewise, Ofcom accepted that an occasional reference to the Big Top 40 chart being “powered by iTunes” could be editorially justified as a means to explain the nature of the entire chart, which was influenced by iTunes as a data source. However, Ofcom did not consider that the repeated references throughout the programme to iTunes (whether referring to the top ten or the chart more generally) served any further purpose and therefore appeared gratuitous. Ofcom considered there was insufficient editorial justification for the sheer number and frequency of these references. Their inclusion in the broadcast therefore gave undue prominence to iTunes, in breach of Rule 10.4 of the Code.
Breaches of Rules 10.3 and 10.4
Cartoon Network (Spanish language), 27 May 2009 to 4 August 2009 Boomerang Spain, 6 June 2009 to 12 July 2009
Cartoon Network (Spanish language) and Boomerang Spain are children’s channels licensed by Ofcom to Turner Entertainment Networks International Limited (“Turner”), and broadcast in Spain. The compliance department for Turner is based in London.
During a recent monitoring exercise, Ofcom noted that some children’s programming on both channels, was sponsored by food products which might be categorised as High in Fat, Salt or Sugar (“HFSS”) according to the nutrient profiling scheme of the Food Standards Agency, in particular Haribo (jelly sweets), Choco Krispies (cereal) and Nesquik (milk flavouring powder).
Regulatory Framework and Guidance
As part of its duties under the Communications Act 2003 (“the 2003 Act”) in relation to broadcasting, Ofcom is ultimately responsible for setting broadcast standards for advertising and the sponsorship of programmes. The relevant objectives to be secured by these standards include:
- that persons under the age of 18 are protected (section 319(2)(a) of the 2003 Act);
- to prevent the unsuitable sponsorship of programmes included in television services (section 319(2)(j)).
The Advertising Standards Authority (“the ASA”) and Broadcast Committee of Advertising Practice (“BCAP”) regulate the content of broadcast advertising, under a Memorandum of Understanding with Ofcom (-1-). Specifically, BCAP supervises and reviews the codes that govern the regulation of broadcast advertising.
The regulation of broadcast sponsorship remains with Ofcom because of its intrinsic connection with broadcasters’ editorial content. It is dealt with in Section Nine of Ofcom’s Broadcasting Code (“the Code”).
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.”
In February 2007 Ofcom published its Final Statement on Television Advertising of Food and Drink Products to Children. This amended the BCAP Rules on the Scheduling of Television Advertisements to specify in Rule 4.2.1(b) that:
“The following may not be advertised in or adjacent to children’s programmes or programmes commissioned for, principally directed at or likely to appeal particularly to audiences below the age of 16:
…(vi) food or drink products that are assessed as high in fat, salt or sugar in accordance with the nutrient profiling scheme published by the Food Standards Agency (FSA) on 6 December 2005.” (-2-)
BCAP has issued specific guidance (“Guidance”) in order to help advertisers and broadcaster differentiate between HFSS and non-HFSS products in advertisements (and therefore by extension in sponsorship). This Guidance aims to give greater certainty about when the Rules that govern television advertisements (and sponsorship) that promote, directly or indirectly, an HFSS product apply. (-3-)
Ofcom was also concerned that the Nesquik sponsorship credit contained an advertising message. Rule 9.13 of the Code states:
“Sponsorship must be clearly separated from advertising. Sponsor credits must not contain advertising messages or calls to action. In particular, credits must not encourage the purchase or rental of the products or services of the sponsor or a third party”.
The animated credit showed of various pairs of sunglasses. The voiceover stated: “From now you will see everything with different eyes with the glasses and ‘protagafas’ design by Kukuxumusu that you will find in every Nesquik box. Nesquik sponsors this show.”
The caption stated : “ www.echale.nesquik.es + Free sunglasses on the Nesquik boxes and accumulating points on the rest of the packages. Promotion limited to 430.000 units. Only national territory.”
Ofcom therefore asked Turner for its comments on the credits with regards to Rules 9.3 of the Code, and Rule 4.2.1(b) of the BCAP Rules on the Scheduling of Television Advertisements. In relation to the Nesquik sponsorship credit, Ofcom also asked Turner for its comments with regards to Rule 9.13 of the Code.
Rule 9.3 of the Code and Rule 4.2.1(b) of the
BCAP Rules on the Scheduling of Television Advertisements
Turner confirmed that Cartoon Network (Spanish Language) and Boomerang (Spain) were children’s channels. It continued that having reviewed the nutritional profile of the sponsors’ products (i.e. Haribo, Choco Krispies and Nesquik), it could confirm that they all fall into the category of HFSS foods. It therefore acknowledged that each of the sponsorship arrangements was in breach of Rule 4.2.1(b) of the BCAP Rules on the Scheduling of Television Advertisements, and therefore also in breach of Rule 9.3 of the Code.
The broadcaster continued that “there are no rules in Spain equivalent to Ofcom’s HFSS rules and therefore the classification of these food products has been harder to undertake in Spain than in the UK.” It added that there had been a “misunderstanding in its Spanish team in respect of more day-to-day food products”. Turner said that it is undertaking a training programme as a matter of urgency.
Turner said that having reviewed the credit for Nesquik, it acknowledged that the credit contained a promotional message and therefore went beyond the requirements for sponsorship credits. The broadcaster added that it has implemented training in this area to ensure compliance with Rule 9.13.
Rule 9.3 of the Broadcasting Code and
Rule 4.2.1(b) of the BCAP Rules on the Scheduling of Television Advertisements
Ofcom noted Turner’s point that Spain does not have any rules which are equivalent to Ofcom’s HFSS rules and therefore Turner has found classification of HFSS food products harder to undertake in Spain. However, as Turner has chosen to establish itself in the UK and, as such, holds Ofcom licences for the transmission of Cartoon Network (Spanish language) and Boomerang Spain, it must comply with all of the UK’s relevant codes and rules in relation to advertising and sponsorship of programmes.
Article 2 of the European legislation the Television Without Frontiers (TWF) Directive, requires all European Member States to ensure that all broadcasts under its jurisdiction comply with “rules of the system of law applicable to broadcast intended for the public in that Member State”. In addition, Article 16 of the TWF Directive requires Member States to protect the health of minors from the effects of advertising.
Ofcom has also had regard to the fact that its obligations under the 2003 Act are not limited to protecting children in the UK. Ofcom has responsibilities with regard to advertising transmitted by all Ofcom licensees regardless of the territory in which they choose to broadcast.
A sponsored programme is one which has had some or all of its costs met by a sponsor with a view to promoting its own or another’s name, trademark, image, activities, services, products or any other direct or indirect interest (-4-). Sponsorship credits inform viewers that a programme is sponsored and let them know the identity of the sponsor, thereby informing the viewer of the sponsorship arrangement. This is part of the editorial environment and the regulation of sponsorship arrangements therefore rests with Ofcom.
Sponsorship credits may include a brief description of the sponsor’s brands, products or services provided, but must be clearly separated from advertising. However, in accordance with Rule 9.3 of Ofcom’s Broadcasting Code, sponsorship (and the associated credits) must comply with the terms of BCAP’s Television Advertising Standards Code and its Rules on the Scheduling of Advertisements.
Turner admitted that Cartoon Network (Spanish Language) and Boomerang Spain were children’s channels and the sponsored programmes were therefore children’s programmes. Turner also admitted that the nutritional profile of the products featured in the sponsorship credits (i.e. Haribo, Choco Krispies and Nesquik) meant that they fell into the category of HFSS products. The sponsorship was therefore in breach of Rule 4.2.1(b) of the BCAP Rules on the Scheduling of Television Advertisements and, accordingly, in breach of Rule 9.3 of the Broadcasting Code, which requires that sponsorship must comply with the advertising scheduling rules that apply to the relevant medium, in this case television.
Sponsorship of various programmes on Cartoon Network (Spanish language) and Boomerang Spain by Choco Krispies – Breach of Rule 9.3 of the Code and Rule 4.2.1(b) of the BCAP Rules on the Scheduling of Television Advertisements
Sponsorship of various programmes on Cartoon Network (Spanish language) by Haribo – Breach of Rule 9.3 of the Code and Rule 4.2.1(b) of the BCAP Rules on the Scheduling of Television Advertisements
Rule 9.13 of the Code is directly derived from European legislation, the TWF Directive.
The TWF Directive limits the amount of advertising a broadcaster can transmit (Article 18) and requires that advertising is kept separate from other parts of the programme service (Article 10). As sponsorship credits are treated as part of the sponsored content rather than advertising, they do not count towards the amount of airtime a broadcaster is allowed to use for advertising. To prevent credits effectively becoming advertisements, and therefore increasing the amount of advertising transmitted, broadcasters are required to ensure that sponsorship credits do not contain advertising messages.
The sponsorship credit informed the viewer that they would find a free pair of sunglasses inside each box of Nesquik. The credit therefore promoted the sponsor’s product in breach of Rule 9.13 of the Code.
Sponsorship of various programmes by Nesquik, Cartoon Network (Spanish language) – Breach of Rule 9.13 and 9.3 of the Broadcasting Code and Rule 4.2.1(b) of the BCAP Rules on the Scheduling of Television Advertisements
Ofcom is concerned that Turner appears to have had insufficient procedures in place to ensure compliance with Rule 9.3 of the Code and Rule 4.2.1(b) of the Rules on the Scheduling of Television Advertisements. In light of this, Ofcom is requiring the broadcaster to attend a meeting to discuss its compliance processes and procedures. Further, Ofcom is putting the licensee on notice that any further breaches of Rule 9.3 and Rule 4.2.1(b) of the Rules on the Scheduling of Television Advertisements will be taken extremely seriously and in such circumstances Ofcom may consider further regulatory action.
1.- This arrangement operates on a formal footing sanctioned by Parliament. The Memorandum of Understanding between the parties can be found at: http://www.ofcom.org.uk/consult/condocs/reg_broad_ad/update/mou/.
3.- The Guidance is available at www.asa.org.uk/asa/code/tv_code/Guidance_Notes.
Win This Week with Sky
Hallam FM (South Yorkshire), 28 September 2009, 07:05
Win This Week with Sky was a sponsored listener competition feature broadcast in Hallam FM’s breakfast show.
In this instance, it opened with the following pre-recorded sponsor credit:
“ Win This Week with Sky; like drama and entertainment; choose the variety pack; Hallam FM.”
The presenter then said:
“ Every morning this week we’re giving away Sky plus an HD box, including a year’s subscription to Sky, including the Style and Culture and Knowledge pack, plus the HD pack, and an HD-ready TV as well – a fantastic prize! Sky let you choose the type of TV you want, without paying for stuff you don’t, as Sky have six entertainment packs to choose from. Do you want get under the skin of your type of culture? Choose the TV you want with Sky’s Style and Culture pack, or for drama and entertainment choose Sky’s variety pack. We’ll play a game now. Contestant number one is Liz Harrison in Denaby. Hello…”
A listener questioned the validity of the claim, “Sky let you choose the type of TV you want, without paying for stuff you don’t”, and referred to Ofcom’s recent Finding concerning the competition, Win with Sky, when Hallam FM was found in breach of the Code, for failure to gain appropriate approval in advance (in this case, from the Radio Advertising Clearance Centre) for the broadcast of a sponsor credit. (-1-)
Under the Code, sponsor credits on radio may contain advertising claims. However, as the advertising claim in this case had been made outside the sponsor credit and as part of the programming itself, we sought Hallam FM’s comments with regard to Rule 9.5 of the Code, which states:
“There must be no promotional reference to the sponsor, its name, trademark, image, activities, services or products or to any of its other direct or indirect interests. There must be no promotional generic references. Non-promotional references are permitted only where they are editorially justified and incidental.”
Bauer Radio, which owns Hallam FM, said that it was “aware of a similar complaint from a listener … for a previous Sky campaign … concerning clarity over the different Sky packs”. It added that, “although this read was longer than normal, we wanted to make sure we made it clear to listeners that we were describing the prize accurately.”
The broadcaster did not believe it had breached Rule 9.5 of the Code, as it had retained editorial control of the competition, adding that “the mechanic involved a listener describing one of their favourite TV programmes, with the participant invited to guess the TV show in question. Before we put this promotion to air we took extreme care to make sure the listener clues covered a full range of shows and not just those available on Sky’s channels. On the day in question the clue was for a BBC programme.”
Bauer Radio appeared to believe it had not breached the Code on the grounds that it had maintained editorial independence and avoided giving undue prominence to Sky programmes within the competition itself.
Broadcasters are reminded that only non-promotional references to a sponsor and its products/services are permitted in the programming it has sponsored and such references must be both editorially justified and incidental. Where the sponsor is also providing a broadcast competition prize, its on-air description should therefore be sufficient for listeners to be able to decide whether they wish to enter the competition, but should not generally include advertising messages or other information about the sponsor and/or its products/services.
In this instance, the broadcast competition appeared to comprise four distinct sections:
- a pre-recorded sponsor credit (which had been appropriately cleared for broadcast) – “ Win This Week with Sky; like drama and entertainment; choose the variety pack; Hallam FM”;
- a presenter-read description of the broadcast competition prize available each morning – “ Every morning this week we’re giving away Sky plus an HD box, including a year’s subscription to Sky, including the Style and Culture and Knowledge pack, plus the HD pack, and an HD-ready TV as well – a fantastic prize!”;
- presenter-read information about the sponsor and its products/services – “ Sky let you choose the type of TV you want, without paying for stuff you don’t, as Sky have six entertainment packs to choose from. Do you want get under the skin of your type of culture? Choose the TV you want with Sky’s Style and Culture pack, or for drama and entertainment choose Sky’s variety pack”; and
- the presenter-led broadcast competition itself – “ We’ll play a game now. Contestant number one is Liz Harrison in Denaby. Hello…”
Ofcom considered that the prize description was clear and sufficient to enable listeners to decide whether they would like to enter the competition.
However, Ofcom did not agree with the broadcaster’s argument that the additional information about the sponsor’s products/services was necessary “to make sure [the broadcaster] made it clear to listeners that [it was] describing the prize accurately”. The information clearly promoted the sponsor’s products/services and included an advertising claim (“ Sky let you choose the type of TV you want, without paying for stuff you don’t...”) and product descriptions. Promotional references to the sponsor and its products/services are prohibited in programming and the feature was therefore in breach of Rule 9.5 of the Code.
In view of Hallam FM’s previous breach of Section Nine of the Code, as referred to above, and the breach recorded here, Ofcom intends to discuss Bauer’s compliance processes with it in more detail.Breach of Rule 9.5
1.- See Broadcast Bulletin issue number 140 (24 August 2009), which can be found at: http://www.ofcom.org.uk/tv/obb/prog_cb/obb140/Issue140.pdf.
STV Business Briefing
STV, May to August 2009, 22:30
STV Business Briefing was a series of short reports that followed STV’s evening news programme. It included business news reports relevant to Scotland and market share prices. The programme was sponsored by STV Jobs (a job finding service).
Ofcom asked STV to comment on the sponsorship arrangement under Rule 9.1 (news and current affairs programmes on television may not be sponsored).
STV assured Ofcom that it took compliance with the Code very seriously and was fully aware of the prohibition on the sponsorship of news and current affairs programmes. The broadcaster advised that it had based its sponsorship of the STV Business Briefing report on Ofcom’s guidance that accompanies the Code. This states that “short specialist reports following a news programme - including sport, travel and weather reports - may be sponsored.”
STV took the view, based on Ofcom’s guidance, that the report met the criteria of a ‘short specialist report’ and was therefore open to sponsorship. The broadcaster advised that it treated the STV Business Briefing as a short specialist report as the content was restricted to business information only. The format mirrored that of a sports report and it was clearly separated from the main news programme. STV argued that sports reports contain opinion and analysis in the same way as the STV Business Briefings. It would therefore be unfair for Ofcom to record a breach finding, when STV had followed the terms of the guidance. STV also advised that it ceased broadcasting this report on 24 August 2009.
Rule 9.1 of the Code prohibits the sponsorship of news and current affairs programmes. This rule is derived from the requirements of the Television Without Frontiers Directive (-1-). It supports the important principle that news must be reported with due accuracy and presented with due impartiality. A broadcaster’s editorial control over the content of its news should not be, or appear to be, compromised.
Other information that traditionally accompanies news, such as sports and weather reports, may be sponsored provided this is separated from the news. There is no absolute prohibition on the sponsorship of business features. Reports consisting of factual information, such as stock prices, may be sponsored because it is unlikely that the sponsorship will be seen to compromise the accuracy and impartiality of the information provided. However, sponsorship of reports that contain analysis or opinion on business news is incompatible with the requirements of Rule 9.1.
Ofcom noted that the guidance to Rule 9.1 only gives examples of topics – sport, travel, weather – that do not deal with matters of political or industrial controversy, or current public policy. We believe it is sufficiently clear from the Code and guidance that programmes that do contain analysis of such issues cannot be sponsored.
In this instance, we noted the STV Business Briefing was introduced as a round-up of business news. It provided short reports on matters of local business interest, including explanation and analysis of current events and issues, such as the increase in the number of public service workers in Scotland, which it attributed to “the Government’s rescue of the stricken banking sector.” Reports were also included on Government reassurance to shipyard workers about their jobs, and the controversy surrounding a senior banker’s pay. These clearly dealt with matters of political and industrial controversy.
In conclusion, the STV Business Briefings went beyond providing factual market information (which may be sponsored). As such, Ofcom judged the programme to be a news report and the sponsorship was therefore in breach of the Code.
Breach of Rule 9.1
The original decision to find this programme in breach was appealed by the broadcaster, leading to a review. This finding is the result of that review.
Sunrise TV, 28 July 2009, 11:00
Sunrise TV is a general entertainment channel for the UK Asian community. Beauty Simplified is a phone-in programme presented by a beautician, Bina Khan, who offers callers beauty tips and advice.
A viewer was concerned that a range of beauty products was promoted in the programme and the promotions included prices and details of where the products could be purchased.
Ofcom noted that the programme included discussions concerning four products that were available through the presenter’s personal website, BinaKhan.com, and various sponsored links to WellJuice.com, which produced and supplied the products.
The presenter occasionally referred to her own website, although only once by name (e.g. “…go for diet lemon juice … probably you know how to get it if you go to my website, yes?” and “…if you don’t know where it is then visit my website, BinaKhan.com, and you can find the location by clicking on to store location…”)
Given the references to the presenter’s website (BinaKhan.com), through which viewers could purchase products produced and supplied by WellJuice.com and featured in the programme, we sought Sunrise TV’s comments with regard to the following Code Rules:
- 10.1 – Broadcasters must maintain the independence of editorial control over programme content;
- 10.3 – Products and services must not be promoted in programmes. This rule does not apply to programme-related material;
- 10.4 – No undue prominence may be given in any programme to a product or service; and
- 10.5 – Product placement is prohibited.
Sunrise TV said that it had no commercial arrangement in place with the operator of the website, WellJuice.com. It added that the presenter had confirmed that, while all the products she recommended on her website (BinaKhan.com) were available from that company, she also had no commercial relationship with it concerning the programme. The broadcaster also stated: “At no time is any broadcast on Sunrise TV assigned in any way to a third party.”
Sunrise TV said that the presenter was “well known within the Asian community, having hosted similar shows on radio and written extensively in Asian publications and is considered an expert in home remedies.” It added that, as with all presenters, Bina Khan was required to comply with the programme’s brief - in this case, “to provide the viewers with an interactive programme offering beauty tips and advice using natural remedies that are generally available in a discussion based environment prompted by viewers’ phone calls” and to “act in accordance with the production values that have been set in place.”
The broadcaster said that the references to products and services in the programme were “spontaneous and unrehearsed.” However, it acknowledged that “during the course of this show undue prominence was inadvertently given to the products available from WellJuice.com through the BinaKhan.com website and this represented a breach of Code Rule 10.4.” Sunrise TV also acknowledged that the website, BinaKhan.com, was not programme-related material, as it was not directly derived from the programme. It added that, “by giving the advice in the way that she did, Bina Khan inadvertently promoted her own website and as a consequence the specific products in a manner that would appear to contravene Rule 10.3.”
The broadcaster said it had therefore reminded all presenters to avoid promoting or giving undue prominence to products or services in programmes and had “stressed the particular importance of these obligations in respect of live interactive programming when offering spontaneous and unrehearsed responses to questions and statements by participants in such programmes.”
Sunrise TV said that the presenter had “offered her apologies for the shortfall in the professional standards expected of her”, and offered its own “unreserved apologies for the shortfalls highlighted by this complaint.”
Ofcom notes Sunrise TV’s assurances that there was no commercial arrangement in place between the broadcaster or the presenter and the operator of the website, WellJuice.com, concerning the programme and that “at no time is any broadcast on Sunrise TV assigned in any way to a third party.” On the basis of the evidence available to it, Ofcom was satisfied that product placement had not occurred (Rule 10.5) and that the broadcaster’s editorial independence had been maintained (Rule 10.1).
Where editorially justified, presenters may make reference to products and/or services in programmes. For example, they may find it appropriate to refer the audience to a channel’s or programme’s own website to obtain further information concerning the broadcast. However, references to products and/or services in phone-ins need special care, especially if the presenter is speaking in the capacity of an expert and has associated professional interests that are separate from the broadcast (e.g. a personal website).
The presenter made reference to a number of generic products, such as dried fruit soup, and green, lemon and mint teas. However, on a few occasions, she also mentioned the availability of the following products on her personal website, BinaKhan.com (through sponsored links to the producer and supplier, WellJuice.com):
- Bio Hair Oil;
- Diet Lemon;
- Egg Hair Oil; and
- Castor Oil.
Ofcom noted that the presenter did appear to take some care when responding to callers and appeared to be aware of possible Code compliance pitfalls. For example:
- when asked by a caller about egg hair oil – noted by the caller as a particularly expensive product – the presenter offered her instructions on how to make her own, as opposed to promote further its purchase;
- the only time the presenter actually stated her web address in the programme (as opposed to referring to it generically as “my website”), was to enable a caller to locate her nearest retail outlet, rather than to purchase any product via BinaKhan.com; and
- the presenter generally appeared to advise callers in line with Code requirements – i.e. not to promote specific products but instead give her view on the most appropriate general solutions for callers’ questions, problems or circumstances.
While Ofcom did not find a breach of Rule 10.3, there appeared to be no editorial justification for her referring to her own website – either generically ( “my website”) or by naming it (BinaKhan.com). Ofcom noted that a range of products discussed in the programme were promoted on the website, through which they could also be purchased. The programme therefore gave undue prominence to her personal web service and the products available on it, in breach of Rule 10.4 of the Code.
Breach of Rule 10.4
Ahlebait TV, 23 August 2009, 10:30
Ahlebait TV broadcasts religious teachings to a Shia-Muslim audience.
Throughout various programmes, a prayer service is promoted via scrolling text at the bottom of the screen. Viewers are invited to submit their name and message to a premium rate text service at a cost of 50p plus standard network charges. By using this service, viewers can request a live Dua (prayer) to be included in another of Alhebait’s programmes, Dua from Holy Places.
A viewer objected to the promotion of this service.
Ofcom sought the broadcaster’s comments on the promotion under Rule 10.3 (products and services must not be promoted in programmes) of the Code.
Ahlebait TV advised that the promotion related to a service provided during its programme Dua from Holy Places. This programmeoffers viewers the opportunity to receive a live prayer, read by one its representatives located in a holy place, during the programme.
Ahlebait TV advised that during the programme, viewers are invited to submit their details via a landline telephone number. The broadcaster explained that this entry route attracts a large number of callers, who cannot all be accommodated within the duration of the programme. Therefore an additional SMS entry route is offered outside of the programme, which is promoted throughout other programmes.
The Code requires that advertising and programming should be distinct and clearly separated. As a general rule, products and services should not be promoted in programming. There are limited exceptions to this rule. For instance, programme-related material may be promoted in or around the programme from which it is derived (Rule 10.6). Programme-related material is defined in the Code as “…products or services that are both directly derived from a specific programme and intended to allow listeners or viewers to benefit fully from, or to interact with, that programme”.
Rule 10.9 of the Code states that premium rate services will normally be regarded as products or services and must not therefore appear in programmes unless:
- they form part of the editorial content of the programme; or
- they fall within the definition of programme-related material.
In this case, Ofcom noted that this premium rate SMS service was programme related in that its purpose was to allow viewers to submit prayer requests to the programme Dua from Holy Places. However, the service was promoted outside of this programme, during broadcasts from which the prayer line was not directly derived. Because the service was not related to the programmes during which it was promoted, the promotion was not justified and was therefore in breach of the Code.
Breach of Rule 10.3
Shorts TV, 12 September 2009, 13:30
Shorts TV is an arts channel aimed at adults specialising in short films; it is available without any access restrictions. As part of its “Best in Fest” short film season, Shorts TV broadcast a 22 minute feature film in French entitled La Rixe (‘The Brawl’). English subtitles were provided. The film portrayed a police force’s struggle to maintain order in an unruly suburb, culminating in a confrontation with some of its residents
The film included 14 instances of highly offensive language being used by the characters in the film. This was translated as “fuck” and its derivatives in the English subtitles. There was also a scene lasting around three minutes in which three police officers were attacked by a gang. The sequence showed police officers being beaten with clubs, and a female officer being repeatedly kicked in the stomach. The gang fled the scene leaving the police officers incapacitated and the film concluded with brief but bloody images of the injuries sustained.
One viewer complained that the film should not have been broadcast at this time of day given the strong language used and the violent gang scene. Ofcom therefore sought the broadcaster’s comments under the following rules of the Code:
- Rule 1.11 – Violence must be appropriately limited in programmes before the watershed; and
- Rule 1.14 – The most offensive language must not be broadcast before the watershed.
Shorts TV said the film had been incorrectly scheduled by its compliance team and acknowledged that the offensive language and violent gang scene complained of were inappropriate. In light of this error, the broadcaster said it has undertaken a review to determine how this mistake occurred to preventing a similar incident happening in the future.
The broadcaster however said that Shorts TV is aimed at adults and therefore child viewing figures for the film would be negligible. It further added that the offensive language, spoken in rapid, colloquial French, would have most likely gone beyond the level of child viewers’ comprehension. Whilst recognising the seriousness of the error, Shorts TV maintained that these factors would have gone some way in lessening the impact of the dialogue.
Ofcom research indicates that the word “fuck” and its derivatives are considered by viewers to be some of the most offensive language. Its inclusion in subtitles of this afternoon programme was in clear breach of Rule 1.14 which prohibits the use of such language before the watershed.
As regards Rule 1.11 and the scene featuring the gang attack on three police officers, Ofcom noted that it showed police officers being assaulted in a very violent way. Although a number of the blows did not show the point of impact, this key scene was graphic enough to leave viewers in no doubt about the viciousness of the attack or the effect on the police officers. Ofcom also noted that the scene lasted about three minutes, which was considerable given that the film itself was 22 minutes long. The violence shown was clearly not appropriately limited.
Neither was it in Ofcom’s view, justified by the context as required by Rule 1.11. Ofcom noted that the scene was pivotal to the plot and included in a feature film, and that Short TV does not appear to attract a significant child audience. None of these factors however justified showing this violent scene before the watershed – as is acknowledged by the broadcaster. The programme was therefore in breach of Rule 1.11.
Ofcom urges the broadcaster to introduce more robust procedures as soon as possible.
Breaches of Rules 1.11 and 1.14
The Hotmix: Eminem
4Music, 27 September 2009, 14:00
The Hotmix is a series of programmes featuring music videos linked by a particular theme. This edition played a compilation of songs by the artist Eminem.
One viewer complained to Ofcom that some of the songs contained the word “fuck”. Ofcom noted that the programme contained two instances of this word in two separate music videos.
Ofcom sought comments from Box TV, which owns and complies 4 Music, under Rule 1.14 of the Code (the most offensive language must not be broadcast before the watershed)
Box TV explained that owing to a breakdown in its compliance procedures, this programme was not viewed before broadcast by the compliance manager. It recognised the language was inappropriate for a pre-watershed transmission and apologised for any offence caused by this oversight.
In light of this incident, Box TV reminded its staff of the importance of clearing material for broadcast and introduced an additional compliance check to its procedures. The broadcaster hoped these measures will prevent a recurrence of this type of human error.
Our research indicates that the word “fuck” and its derivatives are an example of the most offensive language. Ofcom welcomed Box TV’s apology and the implementation of an extra layer in its compliance process to minimise the likelihood of a similar incident.
However, Ofcom was concerned that a programme featuring songs by Eminem, who is widely known to use offensive language in his lyrics, was cleared for transmission without prior viewing by Box TV’s compliance team. A broadcaster must carry out appropriate checks before broadcasting such a programme in the afternoon.
The broadcast of the most offensive language at this time was a clear breach of Rule 1.14
Breach of Rule 1.14
OnFM, 9 September 2009, 15:00
OnFM is a community radio station that broadcasts to the Hammersmith area in West London. During this edition of its Drivetime programme, an unedited version of the song “Leave Me Alone (I’m Lonely)”by the artist Pink, containing two instances of the word “fuck”, was aired.
A listener complained to Ofcom about the broadcast of the offensive lyrics. Ofcom sought the broadcaster’s comments under Rule 1.14 of the Code (the most offensive language must not be broadcast when children are likely to be listening).
OnFM said it fully recognised that the broadcast of this language was unsuitable.
OnFM explained that the error occurred because the presenter had mistakenly selected the unedited rather than the ‘radio edit’ version of the song. It said that because of the live nature of the broadcast and the fact that the examples of offensive language featured in quick succession during the song, there was no time for the presenter to remove the track.
In response to the incident, OnFM issued an on-air apology later in the same programme. It also introduced a number of new safeguards to minimise the likelihood of a recurrence of the same problem, including the vetting of all new music tracks and pre-recording a number of programmes.
Ofcom research indicates that the word “fuck” and its derivatives are examples of the most offensive language. Such language should not be broadcast on radio when children are particularly likely to be listening, as with this programme.
Ofcom noted OnFM’s on-air apology and welcomed the seriousness with which OnFM treated the matter, which has led to the broadcaster improving its compliance procedures. However, the broadcast of the most offensive language at this time, when a significant number of children may have been listening, is a clear breach of the Code.
Breach of Rule 1.14
Baba Ji Online
DM Digital, 13 May 2009, 11:00
Ofcom received a complaint that a presenter gave callers (and viewers) potentially harmful medical and other advice during this programme.
On 29 May 2009, Ofcom asked DM Digital to provide a copy of the programme. Despite several further requests from Ofcom for the recording, and written undertakings by DM Digital that the recording would be supplied, the broadcaster did not supply the recording to Ofcom until 10 August 2009 (over 10 weeks after the initial request by Ofcom).
Ofcom asked the broadcaster to provide formal comments in relation to Condition 11 of its Television Licensable Content Service (“TLCS”) licence. This states that: “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” and “the Licensee shall:…At the request of Ofcom forthwith produce to Ofcom any such recordings for examination or reproduction.” Guidance makes clear that recordings must be retained for 60 days by holders of TLCS licences.
DM Digital said that after receiving the original request for the recording from Ofcom, the content in question had been transferred to DVD in June 2009 and it believed the disc had been sent to Ofcom at that time, which it evidently had not. Due to the channel moving to new premises, the broadcaster said the matter of providing the recording to Ofcom had been overlooked. DM Digital apologised for the delay in providing the recording, said that this had not been a deliberate act; and gave assurances that the late provision of recordings would not happen again in future.
It is a condition of DM Digital’s licence that recordings of all output are retained for 60 days after transmission and that Ofcom is provided “forthwith” with any material on request. It took DM Digital over 10 weeks to supply the requested recording. Ofcom considers this to be an entirely unacceptable delay and represents a serious breach of Condition 11 (Retention and production of recordings) by DM Digital.
Should these problems recur, Ofcom may consider further regulatory action. This breach will be held on the licensee’s record.
Breach of Licence Condition 11 (Retention and production of recordings)
PTV Global, 28 August 2009, 19:40
PTV Global is a channel aimed at a Pakistani audience. The Ofcom licence for the PTV Global channel is held by Pakistan Television Corporation Ltd. (“PTV”). PTV also operates five other channels (including one called PTV Home), none of which can be received in Europe and are therefore not licensed by Ofcom.
The programme Lazzat-e-Iftaar was a 15 minute cookery programme broadcast during the Muslim holy month of Ramadan (-1-). During the programme a presenter demonstrated how to make dishes which would be suitable to break the daily fast.
The set was branded with the logo of a milk product called Olpers. The branding appeared behind the presenter and on the front of the cookery workbench. Four cartons of Olpers milk appeared on the set: three on a shelving unit and one on the workbench. The presenter referred to Olpers verbally, as well as using the product in one of the recipes she made.
A complainant was concerned that the programme contained “heavy product placement”.
Ofcom asked the broadcaster for its comments with regards to the following Code Rules:
- 10.3 – Products and services must not be promoted in programmes. This rule does not apply to programme-related material.
- 10.4 – No undue prominence may be given in any programme to a product or service.
- 10.5 – Product placement is prohibited.
PTV told Ofcom that the programme was intended for transmission on the PTV Home channel which it transmits to Asia. It said that Olpers milk and Olpers milk products, are only distributed for sale in Pakistan and some countries in the Middle East. It was therefore never the intention to advertise it on a channel which is broadcast in a country where the product is not distributed.
PTV said its policy is not to broadcast branded programmes on the PTV Global channel. The broadcaster explained that content is shared between the PTV Global channel and the PTV Home channel. PTV initially receives the content in the form of VHS tapes and DVDs, and then a member of its staff transfers each 24 hour period worth of content on to servers ready for transmission on both the PTV Home and PTV Global channels.
PTV continued that there was one version of the programme Lazzat-e-Iftaar which was meant for transmission on the PTV Home channel and another which was meant for transmission on the PTV Global channel.
PTV stated that, on this occasion, the branded content was broadcast on the PTV Global channel in error, because the member of staff responsible for transferring the content from the VHS tapes and DVDs to the servers ready for transmission, picked the wrong version for broadcast on the PTV Global channel.
In order to prevent such an error occurring again, PTV has implemented a new system. In one location a member of staff now transfers the content intended for transmission on the PTV Home channel onto one server. In a separate location another member of staff transfers content intended for transmission on the PTV Global channel onto another server. The broadcaster assures Ofcom that this new process will ensure that only content which has been complied for broadcast on the PTV Global channel will be transmitted on that channel.
PTV added that it had received payment for the inclusion of references to Olpers in the programme when it was broadcast in Asia on the PTV Home channel, but confirmed that it did not receive payment for the inclusion of the references in the programme broadcast on PTV Global.
One of the fundamental principles of European broadcasting regulation is that advertising and programming (that is editorial content) must be kept separate. This is set out in Article 10 of the Television Without Frontiers Directive which is in turn reflected in the rules in Section Ten (Commercial References in Programmes) of the Code.
Ofcom noted that PTV had received payment for the inclusion of the references to Olpers milk in the programme when it was broadcast in Asia on the PTV Home channel.
Rule 10.5 of the Code prohibits product placement. The Code sets out that, for the purposes of this rule, arrangements covering the inclusion of products or services in a television programme acquired from outside the UK (and films made for cinema) are not considered to be product placement, provided that no broadcaster regulated by Ofcom and involved in the broadcast of that programme (or film) directly benefits from the arrangement.
Ofcom noted that in this case, the licensee, PTV, also owned the non-Ofcom licensed channel (PTV Home) on which the programme was originally broadcast, and to which this product placement arrangement related. Therefore in this case, the Ofcom licensee was not only involved in the broadcast of that programme but also directly benefited from the placement arrangement.
However, Ofcom acknowledged that the programme was never meant for transmission on PTV Global and that its broadcast on this service was unintentional.
Ofcom welcomes the steps taken by PTV as a result of the broadcast to prevent a similar error occurring in the future (i.e. PTV has separated the content meant for transmission in the UK and Europe on the PTV Global channel from content meant for transmission in Asia on the PTV Home channel).
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.
The full document (Other Standard cases / Fairness & Privacy cases) is available below
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