Broadcast Bulletin Issue number 149 11/01/10

Drivetime, The Gospel Truth with Andrew Womack, Live 960, Top Shelf TV, MTV Live: Isle of MTV music festival featuring Lady Gaga, Club Paradiso, F1: Grand Prix & Complaint by Ms Emma Czikai

Standards cases

In Breach

Drivetime
Radio XL 1296 AM (West Midlands), 5 October 2009, 15:00

Introduction

Radio XL provides a music, news, views and information service for the Asian community in the West Midlands.

During this edition of Radio XL’s drivetime programme, promotional material was broadcast shortly after 16:00.

Promotion of office space
After a commercial break and brief station ident, the presenter said:

“Traffic control updates for you in about three to four minutes’ time. Time to squeeze in a little song. Just before that, I’ve got to tell you something and this is dedicated to you. In fact it’s special attention to everybody, especially if you’re a solicitor, if you’re an accountants, travel agents and all those that need office space. Now, office space now available in a prime location on the main high street in West Bromwich. The premises are opposite the subway and have car parking to the rear. Over eighteen hundred square feet of office space is available, and great premises with competitive rates at a highly sought after location there. If you want any enquiries on there, if you do need office space, why not pick up the phone and call either David on 0121… [repeats name and number] or Richard on 0121… [repeats number] and they can help you out with that, if you need any office space – got loads available over in West Bromwich. ”

A listener found the “presenter … blatantly plugging office space/rooms for letting … disruptive in [Radio XL’s] usual programming”, adding that “it wasn’t even a sponsorship or an advert ... it was the presenter announcing it.”

The broadcaster confirmed that the promotional material in question was a presenter-read and paid-for advertisement.

We therefore sought Radio XL’s comments with regard to Rule 10.2 of the Code, which states:

“Broadcasters must ensure that the advertising and programme elements of a service are kept separate.”

Promotion of special travel rates
While listening to the recording provided by Radio XL, we also noted the following material, which was broadcast over a consistent rhythmic sound-bed, following a post-news weather-check ident:

• A pre-recorded sponsor credit: “Radio XL weather is brought to you in association with Southall Travel – taking you to the best destinations in the world”;
• A presenter-read weather forecast; and
• Pre-recorded promotional material concerning the sponsor: “For special rates to India, Pakistan, USA, Canada, Kenya, Dar-es-Salaam, Kilimanjaro and Dubai, call Southall Travel, twenty-four hours a day, seven days a week on 0121… [repeats number] ”.

Radio XL said the material contained in the final bullet-point, above, was “an end tag”, which we understood to mean a sponsorship credit, as opposed to part of the weather forecast itself.

We therefore sought the broadcaster’s comments with regard to Rule 9.9 of the Code, which, with reference to sponsorship credits, states:

“Credits must be short branding statements. However, credits may contain legitimate advertising messages.”

Response

Promotion of office space
Radio XL referred to one of the two principles upon which Section Ten of the Code is based; namely:

“To ensure that the independence of editorial control over programme content is maintained and that programmes are not distorted for commercial purposes.”

It added that, “in this passage the presenter [was] clearly doing a paid for live read”, with “no attempt to disguise this as normal programming.” The broadcaster admitted there was “no separation” but claimed the nature of the output was transparent to listeners, as no attempt had been made “to disguise [the] material as normal programming.”

Radio XL said the complainant had “found the announcement disruptive to normal programming, hence insinuating that it was not normal programming.” It added that the complainant’s reference to the presenter “blatantly plugging office space” indicated that the material in question was an advertisement. Radio XL therefore wondered whether the complainant’s claim that the material was not “sponsorship or an advert” was contradictory, as it implied that the material was something else, without suggesting what.

Nevertheless, the broadcaster concluded that, in hindsight, it may have been appropriate “to avoid … confusion … to separate the live read from the programming with a jingle.”

Promotion of special travel rates
Radio XL acknowledged its need to ensure that it maintained editorial control over sponsored programming, which should not be distorted for commercial purposes, and that sponsorship arrangements were transparent and sponsorship messages were separated from programmes and distinct from advertising.

The broadcaster considered that, “in this instance there [was] a sponsor credit followed by the programming content in the form of the weather followed by ‘another sponsor credit’ and then a station ident acting as a separation.”

Radio XL believed that “the issue appears to be whether the third bullet point [as in the introduction, above] should [have been] treated as a second sponsor credit.” In the broadcaster’s view, the continuous music bed under both the credits and the programming in between them, demonstrated that the credits were linked.

The broadcaster said “the ‘second’ sponsor credit [was] short and clearly contain[ed] a legitimate advertising message.” It added that Radio XL did not repeat “brought to you in association with Southall Travel”, since it was obviously linked by the music bed to the first sponsor credit.

Decision

Promotion of office space
Broadcast output is defined either as editorial (programming) or advertising. For the purposes of transparency, and reflecting the second of the two principles upon which Section Ten of the Code is based, Rule 10.2 of the Code requires that:

“Broadcasters must ensure that the advertising and programme elements of a service are kept separate.”

Presenters may read advertisements (live or recorded) but broadcasters should ensure that the distinction between advertising and programming is not blurred and that listeners are not confused between them. It is therefore advisable for presenter-read advertisements to be separated from programming by, for example, a jingle or station ident, or by scheduling them in the middle of a commercial break.

In this case, a commercial break was clearly separated from the material that followed by a station ident. The presenter continued his drivetime programme, announcing that he would be playing a song before a travel update. He then dedicated to Radio XL listeners what he was about to say (i.e. “Just before that, I’ve got to tell you something and this is dedicated to you. In fact it’s special attention to everybody…”). We note the broadcaster’s claim that no attempt had been made “to disguise [the] material as normal programming.” Whether or not such an attempt had been made, Ofcom considers that the 40 second promotion of available office space that followed was presented seamlessly as programming.

We note Radio XL’s analysis of the complainant’s view concerning the material broadcast. We do not consider that the presenter was “clearly doing a paid for live read.” Further, we note that Radio XL acknowledged it had not ensured that the advertising and programme elements of its service had been kept separate.

The broadcast was in breach of Rule 10.2 of the Code.

Promotion of special travel rates
Rule 9.6 of the Code requires, among other things, that sponsor credits must appear before and/or after any sponsored programming features (in this case, a weather bulletin). In addition, Rule 9.9 states:

“Credits must be short branding statements. However, credits may contain legitimate advertising messages”.

Ofcom’s published guidance to Rule 9.9 reminds broadcasters that:

• “the primary purpose of a sponsor credit is to inform the listener of the sponsorship arrangement”;
• “a full sponsor credit comprises the sponsor's name and identifies clearly the sponsored output” and “may also contain limited legitimate advertising…”; and
• “sponsor credits on radio should not sound like advertisements.”

The promotional material that followed the weather update comprised merely advertising messages, offering “special rates” to eight destinations and providing Southall Travel’s contact details and availability (i.e. “For special rates to India, Pakistan, USA, Canada, Kenya, Dar-es-Salaam, Kilimanjaro and Dubai, call Southall Travel, twenty-four hours a day, seven days a week on 0121… [repeats number] ”).

Sponsor credits on radio tend to last less than ten seconds, including the announcement of the sponsorship arrangement that is in place and any short, additional advertising message.

Ofcom noted Radio XL’s view that the consistent music-bed (music being played under the speech) throughout the opening sponsor credit, the weather update and the ‘end tag’ (i.e. the promotional message for the sponsor) demonstrated a link between the material surrounding the weather bulletin itself. We did not consider that the music-bed was sufficient to remind the listener of any sponsorship arrangement. Further we noted that the promotional message lasted 17 seconds.

In the circumstances, Ofcom therefore considered that the sponsor credit sounded more like a full advertisement than a brief branding statement. The sponsor credit was therefore in breach of Rule 9.9 of the Code.

Breach of Rules 9.9 and 10.2

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In Breach

The Gospel Truth with Andrew Womack
Revelation TV, 7 October 2009, 08:30

Introduction

Revelation TV is a religious channel that features discussion and personal view programmes. At the end of this programme, the following were promoted in length:

• DVD and CD recordings of the programmes
• A book written by the presenter
• Conferences at which the presenter was appearing

Ofcom sought the broadcaster’s comments on the promotions under Rule 10.3 (products and services must not be promoted in programme) and Rule 10.4 (no undue prominence may be given in any programme to a product or service) of the Code.

Response

Revelation TV stated that all matters referred to in the programme were directly connected to the presenter Andrew Womack’s ministry and the CD/DVDs directly related to the content of the programme. The broadcaster said that the promotions were not included for commercial gain. The programme made clear that if viewers could not afford to pay the quoted price for the CD, they would be sent it free of charge. Further no cost was given in relation to the conferences mentioned.

The broadcaster advised that when programme-makers enter into a contract with Revelation TV for their programmes to be shown on the station, they are reminded of the need to conform to Ofcom rules. However, the broadcaster accepted that it was responsible for ensuring that the material it transmits complies with the Code.

Revelation TV explained that since the programme was shown, it had written to all those who make programmes for the channel, reminding them of the need to study and comply with Ofcom regulations. In addition, two meetings had been held with all in-house presenters and producers to remind them of the Codes requirements in relation to commercial references within programmes.

The broadcaster apologised if the programme had breached the Code.

Decision

Ofcom noted that approximately the last five minutes of the half hour programme was dedicated to the direct selling of the presenter’s products and the promotion of conferences. The products were promoted in a style and format usually associated with teleshopping. Products were displayed on screen and accompanied by the following voiceover:

 “visit our website where you can order ministry materials online 24 hours a day, seven days a week at [website address]. On our website, you’ll not only find materials from today’s broadcast, you’ll find a wealth of resources free for you to download for yourself and share with others or you can use your credit card to order by telephone. Our helpline number is […]. We hope to hear from you today”.

Mention was made of the fact that this was the last opportunity for viewers to order a recording of the teaching featured in the programme. Contact details (postal address, website and telephone number) for acquiring all the products promoted remained on screen throughout the promotions and were also given verbally.

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). Any reference to a product or service within a programme must be editorially justified and not unduly prominent.

In this case, Ofcom accepts that there was sufficient justification for the CD/DVDs to be promoted within the programme on the basis that they comprised material directly related to the programme and, as such, met the definition of programme-related material. However, the promotion of programme-related material must be editorially justified and not result in undue prominence. The duration, tone and level of detail in the promotion of these products, as set out above, went beyond what was editorially justified and was unduly prominent. The promotion was therefore in breach of Rule 10.4 of the Code.

While noting that the book and conferences promoted in the programme were linked to the presenter and his ministry, Ofcom considers that this in itself did not provide sufficient justification for the products to be promoted in the programme. Neither the book nor the conferences were directly derived from the programme and therefore could not benefit for the exemption set out In Rule 9.6 for programme-related material. These promotions were therefore in breach of Rule 10.3 of the Code.

Ofcom notes that the broadcaster accepts it is responsible under its licence for the compliance of the broadcast material it transmits. However, Ofcom is particularly concerned that Revelation TV appears to place such reliance on programme-makers for ensuring that material complies with the Code. Ofcom has previously censured Revelation TV for failing to review the content of its programmes prior to transmission ^(-1-). In light of our concerns, Ofcom is requiring the broadcaster to attend a meeting to discuss its compliance processes and procedures.

Breach of Rules 10.3 and 10.4

Footnotes:

  1.- See Ofcom’s finding on Vision for Israel in Ofcom Broadcast Bulletin 120 which is available at http://www.ofcom.org.uk/tv/obb/prog_cb/obb120/issue120.pdf

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In Breach

Live 960
Live 960, 11 September 2009, 22:00

Introduction

Live 960 is owned and operated by Hoppr Entertainment Limited (“Hoppr Entertainment”). Live 960 is a daytime chat and adult sex chat channel service available freely without mandatory restricted access. The channel is situated in the ‘adult’ section of the Sky electronic programme guide (“EPG”). The channel broadcasts programmes after the 21:00 watershed based on interactive adult sex chat services: viewers are invited to contact onscreen female presenters via premium rate telephony services (“PRS”). The female presenters dress and behave in a sexually provocative way while encouraging viewers to call the PRS telephone line.

A viewer complained about the strong adult content shown during this broadcast. This showed two presenters carrying out a number of sexual acts on each other. At various points in the broadcast the presenters were wearing skimpy thongs and tops that were open to reveal their breasts, spitting on each other’s knickers and licking each other’s breasts, and were shown touching and apparently licking each other’s genital areas. The broadcast included prolonged and close up shots between the presenters’ legs while simulating masturbation. It also included an image of one of the presenters moving her thong to one side to briefly reveal her genitals, while the other simulated the performance of oral sex on her.

Ofcom asked Hoppr Entertainment for its comments on the broadcast in respect of Rules 1.24 ^(-1-) (‘adult-sex’ material); 2.1 (generally accepted standards); and 2.3 (material that may cause offence must be justified by context).

Response

Hoppr Entertainment said that the broadcast of this material was an accident and was not deliberate. It said that its programmes are broadcast live and therefore it is difficult to stop a mistake such as this. It continued that both the cameraman and presenter no longer work for Hoppr Entertainment.

The broadcaster said that it has now put compliance systems in place to prevent this happening again. These include training presenters on the Code and introducing contracts which require presenters to comply with the Code at all times.

Decision

Rule 1.24 requires ‘adult-sex’ material to be broadcast only between 22:00 and 05:30, and then only if mandatory restricted access is in place. Through a series of published findings, and published decisions of the Content Sanctions Committee, Ofcom has made clear what constitutes ‘adult-sex’ material ^(-2-)

Ofcom noted that the broadcast material complained of showed the two presenters apparently performing oral sex and masturbation on each other (head between legs, licking and touching other presenters’ genital areas). In Ofcom’s opinion, a viewer could reasonably have perceived some of these sexual acts as real. The presenters were also shown spitting on and licking each other’s knickers and one presenter very briefly showed her genitals. Ofcom considered that these images broadcast during the programme were clearly of a strong sexual nature and that the primary purpose of this material was sexual arousal or stimulation.

Ofcom noted that the programme was broadcast after the watershed and on a service operating within the ‘adult’ section of the Sky EPG. Nonetheless in Ofcom’s view this content had insufficient editorial or contextual justification to allow its exceptional transmission without mandatory restricted access on free-to-air television. This content was, in Ofcom’s view, ‘adult-sex’ material and its broadcast was in breach of Rule 1.24, which requires such material to be broadcast only after 22:00 with mandatory restricted access.

The broadcasts were therefore in breach of Rule 1.24 of the Code.

Being ‘adult-sex’ material the content complained of clearly had the potential to be offensive. Ofcom recognises that broadcasting this material in the ‘adult’ section of the EPG and after the 21:00 watershed were steps which helped to minimise the potential offence caused to viewers. However, given the strength of the material, which Ofcom considered to be ‘adult-sex’ material and therefore only suitable for transmission with mandatory restricted access (see above), Ofcom considered that factors such as its location in the ‘adult’ section of the EPG and the content being broadcast after 21:00 did not justify the broadcast of this material in this instance. Ofcom also notes the possibility of viewers (and in particular children) at this time coming across this material unawares. Ofcom therefore concluded that this content was not justified by the context and was therefore in breach of Rules 2.1 and 2.3 of the Code.

Ofcom notes the compliance measures taken by the broadcaster in response to the transmission of the material. However, given the strength of the content broadcast, Ofcom considered this contravention to be a serious breach of the Code. Ofcom notes that Hoppr Entertainment has been operating a licence for Live 960 since 19 August 2009 and since that time it has been found in breach of its licence conditions and of the Code on separate occasions. Given this, Ofcom is now requiring the licensee to attend a meeting at Ofcom to discuss its compliance procedures. Ofcom also puts Hoppr Entertainment on notice that it must take all necessary and appropriate measures to ensure its channels comply with the Code in the future. Ofcom will not expect further breaches of this nature to occur again.

Breach of Rules 1.24, 2.1 and 2.3

Footnotes:

  1.-Please note that on 16 December 2009, a revised version of the Code was issued. For programmes broadcast on or after 16 December 2009, Rule 1.18 will apply.

  2.- For example: Sanctions decision against Square 1 Management Limited concerning its channel Smile TV, dated 10 July 2008, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/SmileTV.pdf; Breach Finding on SportxxxBabes, Ofcom Broadcast Bulletin 115, dated 11 August 2008; http://www.ofcom.org.uk/tv/obb/prog_cb/obb115/; Breach Finding on SportxxxBabes, Ofcom Broadcast Bulletin 119, dated 13 October 2008; http://www.ofcom.org.uk/tv/obb/prog_cb/obb119/; Sanctions decision against Satellite Entertainment Limited concerning its channel SportxxxBabes, dated 26 August 2008, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/sportxxxbabes.pdf; and Sanctions decision against Satellite Entertainment Limited concerning its channel SportxxxBabes, dated 26 August 2008, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/sportxxxbabes.pdf.

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In Breach

Top Shelf TV
Top Shelf TV, 17 September 2009, 16:45

Introduction

Top Shelf TV is owned and operated by Playboy TV UK/Benelux Limited (“Playboy” or “the Licensee”). Top Shelf TV is a televised interactive chat channel available freely without mandatory restricted access. The channel is situated in the ‘adult’ section of the Sky Electronic Programme Guide (“Sky EPG”) on Channel 911 ^(-1-). Viewers can call a premium rate telephone number and talk to onscreen female presenters. The presenters generally dress and behave in a provocative and/or flirtatious manner.

On 17 September 2009 routine Ofcom monitoring raised concerns about some material broadcast on Top Shelf TV before the watershed at 16:45. A woman, dressed in skimpy black underwear, stockings, suspenders and stilettos repeatedly lay on her back facing the camera with her legs spread wide apart for prolonged periods of time. While doing so she repeatedly thrust her groin area in close-up to camera as though miming intercourse, and stroked and caressed her body in a sexually provocative manner. This material was presented with background music.

Given the time of broadcast in the late afternoon and that it was available without any access restrictions, Ofcom asked the broadcaster to comment with regard to Rule 1.3 (children must be protected by appropriate scheduling from material that is unsuitable for them).

Response

The Licensee initially responded that the programme material in question was supplied by another licensee, Primetime TV (“PTTV”), and Playboy was not responsible for its compliance. Ofcom pointed out however that a licensee remains responsible for complying all material broadcast on its service unless or until Ofcom has agreed otherwise in advance. Playboy therefore reviewed its original response and accepted that it was responsible for the broadcast of this material.

Playboy said that the material Ofcom queried was in fact part of a test broadcast by PTTV and that the Licensee’s compliance team had not monitored it when broadcast. Playboy however accepted that the presenter’s behaviour was too overtly sexual and unsuitable for the time of broadcast on a channel that was freely available to view. It also confirmed that it has subsequently spoken to PTTV to ensure that such material would not be shown again before the 21:00 watershed.

Decision

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

The behaviour of presenters for daytime chat services must not at any time appear to mimic or simulate sexual acts before the watershed. In this case the female presenter dressed in skimpy underwear adopted various sexual positions including lying on her back with her legs wide open for prolonged periods of time and thrusting her groin repeatedly in close up to camera as though miming sexual intercourse, while stroking her thighs and buttocks. In Ofcom’s opinion the sexual imagery shown to viewers had no editorial context other than sexual stimulation. It was therefore not editorially justified. In Ofcom’s view the repeated actions and sexual positions of the presenter were intended to be sexually provocative in nature. In light of this behaviour, together with its lack of editorial justification, in Ofcom’s view (and admitted by Playboy) this material was clearly unsuitable for children.
 
Given the sexual nature of the content, the location of the channel in the ‘adult’ section of the EPG and its scheduling at 16:45 were not sufficient to provide adequate protection to prevent children from viewing this material. Ofcom has repeatedly made clear that the location of a channel in the ‘adult’ section of the Sky EPG, available freely without mandatory restricted access, does not in itself provide adequate protection to under-eighteens from inappropriate material. Therefore the material breached Rule 1.3 ^(-2-)

Breach of Rule 1.3

Footnotes:

  1.- Playboy TV UK/Benelux Limited transferred its licence for Top Shelf TV to Just4USTV Ltd on 22 September 2009. Just4USTV is a wholly owned subsidiary of Playboy TV UK/Benelux Ltd. From 22 September 2009, JUST4USTV began broadcasting a channel called Elite on EPG number 911.

  2.- Bang Babes ‘Tease Me’ Finding, The Pad ‘Tease Me 2’ Finding and Note to Daytime and Adult Sex Chat Service Broadcasters in Bulletin 137 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb137/; Freeview promotions for Playboy in Bulletin 139 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb139/Issue139.pdf, Bang Babes ‘Tease Me 2’ in Bulletin 120 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb120/.

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In Breach

MTV Live: Isle of MTV music festival, featuring Lady Gaga
MTV One, 2 November 2009, 16:00

Introduction

MTV is a music channel available on satellite and cable platforms. The Isle of MTV music festival took place in July 2009 and featured a number of pop musicians. This programme included a 30 minute performance by Lady Gaga which was recorded at the festival and transmitted on 2 November 2009. During her performance, Lady Gaga addressed the audience and said “put your hands up in the air and dance, you motherfuckers”. One viewer complained about the broadcast of the word “motherfuckers” at 16:00 on a week day at a time when children could be watching.

Ofcom asked MTV Networks Europe (“MTVNE”), which complies the channel, for its comments under Rule 1.14 (the most offensive language must not be broadcast before the watershed) of the Code.

Response

MTVNE unreservedly apologised for the transmission of the language and explained that the programme was broadcast in error.

MTVNE explained that the programme was originally produced and edited by its sister company in Italy and then viewed and complied by its compliance team at MTV in London with all the offensive language removed. After the material was complied, MTV in London requested the Italian office to make technical alterations to the programme’s sound track. The Italian office mistakenly used the original, unedited audio of the concert to make the changes however, and this error resulted in the offensive language being made intelligible again on the soundtrack.

MTVNE outlined the extensive steps it took when it became aware of the broadcast of this offensive language. These included: writing to the complainant and transmitting an apology to viewers the following week; and introducing further compliance checks on all material delivered from Italy.

Decision

Ofcom research on offensive language ^(-1-) identified that the word “fuck” and its derivatives were considered by viewers to be very offensive. Ofcom notes MTVNE’s apology for the broadcast of this offensive language and the action MTVNE has taken since it became aware of its transmission, including an on-air apology and the introduction of further compliance checks.

However, Rule 1.14 of the Code states unequivocally that “the most offensive language must not be broadcast before the watershed…”. Therefore the broadcast of this language before the watershed in this instance is a breach of Rule 1.14.

Breach of Rule 1.14

Footnotes:

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

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In Breach

Club Paradiso
Club Paradiso, 24 October 2009, 05:30

Introduction

Club Paradiso is an interactive adult sex chat service available freely without mandatory restricted access. The channel is situated in the ‘adult’ section of the Sky electronic programme guide (“EPG”). The channel broadcasts programmes based on interactive ‘adult’ sex chat services: viewers are invited to contact on-screen female presenters via premium rate telephony services (“PRS”). The female presenters dress and behave in a sexually provocative way. A viewer made a complaint about the programme.

Ofcom sought a recording of the programme complained of from Chat Central, which is the licence holder for Club Paradiso.

Response

Between 28 October and 30 November 2009 Ofcom was in correspondence with Chat Central seeking a recording of the programme. During this time Chat Central failed to meet a number of deadlines set by Ofcom. Eventually it provided Ofcom with a recording of the programme, but it was not ‘as broadcast’ quality (i.e. it did not contain some of the on-screen text that had apparently been part of the actual broadcast).

Ofcom sought clarification from Chat Central about its reasons for delay in responding to Ofcom’s request and the quality of the recording provided.

Chat Central said that it believed it had been misled by a member of staff about his handling of Ofcom’s request (for example he claimed to have sent the recording to Ofcom when this had not happened), and there had been an increased workload caused by various issues during the company’s first eight weeks of trading.

Chat Central confirmed that following this incident, it had employed two more staff and immediately changed to a new recording system that was able to record its output in ‘as broadcast’ quality, 24 hours a day.

Decision

It is a condition of all broadcast licences that the licensee adopts procedures for the retention and production of recordings and provides these 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).

In this case, Chat Central failed to respond to Ofcom’s request for recordings ‘forthwith’ and had not put procedures in place to ensure their programme recordings were ‘as broadcast’.

Taking these factors into account Ofcom has found Chat Central in breach of its licence condition for failing to retain recordings of their output in ‘as broadcast’ quality and for failing to provide the deal with a request for recordings “forthwith”.

This is a serious and significant breach of the broadcaster’s licence and will be held on Chat Central’s compliance record.

Breach of Licence Condition 11 (retention and production of recordings)

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Resolved

F1: Grand Prix
BBC1, 1 November 2009, 12:10

Introduction

On 1 November 2009, BBC 1 broadcast the Formula 1 Grand Prix, live from Abu Dhabi. Immediately after the race, cameras followed the drivers as they left their cars and presented themselves for the official post-race weigh-in. This part of the live coverage captured an impromptu conversation between the podium drivers, Sebastian Vettel, Mark Webber and Jenson Button, during which Jenson Button said “fuck, I should have waited”.

Ofcom received one complaint from a viewer who considered this language was inappropriate given the programme’s afternoon scheduling. Ofcom sought the broadcaster’s comments under Rule 1.14 of the Code (the most offensive language should not be broadcast before the watershed).

Response

The BBC said that the post-race coverage was supplied by a third party, Formula One Management (“Formula One”), and therefore the BBC had limited control over the output and the conduct of the drivers. However, it stressed that it asked Formula One to remind drivers that their conversations would be broadcast live and must not swear, and that Formula One had given the drivers this reminder.

The BBC regretted the broadcast of the word, but maintained that the majority of viewers would understand that live coverage of the “highly charged atmosphere surrounding sporting events” may occasionally contain strong language. The BBC also referred to: the subsequent apology given by the programme commentator on air; the context of the non-aggressive friendly banter in which the word was used; and the fact that the BBC ensured that the offensive language was not shown in any repeat or on the iPlayer. It stated that these factors mitigated any offence caused.

To minimise the likelihood of recurrence, the BBC said it would, in future, make every effort to dip or mask the sound if there is an indication of the impending use of strong language.

Decision

Our research indicates that the word “fuck” and its derivatives are an example of the most offensive language.

Ofcom accepts that ‘live’ broadcasting poses special compliance challenges for broadcasters, especially when the coverage is supplied by a third party. Ofcom also appreciates that viewers value ‘behind the scene’ moments that provide a close-up insight into the post-race activities of drivers. However, such broadcasts (live, ‘fly-on-the-wall’, and filmed by a third party, where the coverage is largely out of the broadcaster’s hands) can carry risks for compliance and so the broadcaster must take all reasonable steps to ensure compliance with the Code.

Ofcom notes that the BBC does ask Formula One to remind drivers to take care not to swear, and that the BBC plans to reduce the risk of a similar incident happening again through dipping or masking the sound if there is an indication of the impending use of strong language. Ofcom also notes that the BBC transmitted an on air apology. In light of these factors, including the context and tone of this use of strong language, Ofcom has decided that the matter is resolved.

Resolved

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The full document (Other Standard cases / Fairness & Privacy cases) is available below