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Broadcast Bulletin Issue number 152 22/02/10

Bang Babes, The Pad, TMTV, Early Bird, Inside Africa, Sponsorship of The Simpsons, Dum Hai Tou Entertain Kar, Glasvegas, Big Fight Live, The Passions of Girls Aloud, Have I Got News For You, Dancing on Ice, various Fairness & Privacy cases

It is Ofcom's policy to describe fully the content in television and radio programmes that is subject to broadcast investigations. Some of the language and descriptions used in Ofcom’s Broadcast Bulletins may therefore cause offence.


Standards cases

In Breach

Bang Babes
Tease Me 3, 30/31 October 2009, 23:20 to 00:20
Tease Me 3, 7 November 2009, 21:45 to 22:30
Tease Me, 13/14 November 2009, 23:45 to 00:30

Introduction

Bang Babes is an adult sex chat service, owned and operated by Bang Channels Limited, and available freely without mandatory restricted access on the channels Tease Me and Tease Me 3 (Sky channel numbers 912 and 959). Both channels are situated in the 'adult' section of the Sky electronic programme guide ("EPG"). These channels broadcast 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 contact the PRS numbers.

Bang Babes, Tease Me 3, 30/31 October 2009, 23:20 to 00:20
The complainant said the content included in the programme was too sexually explicit to be available without mandatory restricted access.

Ofcom noted that the broadcast contained a range of sexual material broadcast without mandatory restricted access. Between 23:20 and 00:20 the broadcast featured a female presenter wearing a purple thong and no top. At various times during the broadcast the presenter adopted various sexual positions, including lying on her back with her legs wide open to camera and also kneeling on all fours with her buttocks to camera. While doing so the presenter repeatedly carried out a number of sexual acts, for example, she: simulated masturbation in a realistic way by touching and rubbing her thong against her genital and anal area; spat saliva over her genital area; and rubbed saliva and lotion over her genital area. She also repeatedly showed anal and genital detail.

Bang Babes, Tease Me 3, 7 November 2009, 21:45 to 22:30
The complainant here was concerned that the presenter was wearing inadequate underwear which resulted in images of her anus being shown.

Ofcom noted that the broadcast contained a range of strong sexual material. It featured a presenter wearing a skimpy pink thong and bikini top. The presenter adopted various sexual positions, including kneeling on all fours with her buttocks to camera and lying on her back facing the camera with her legs spread wide apart. While in these positions the presenter thrust her bottom in a sexual manner for prolonged periods of time as though miming sexual intercourse. She also repeatedly touched and rubbed her genital and anal area.

Bang Babes, Tease Me, 13/14 November 2009, 23:45 to 00:30
The complainant was concerned that the broadcast included prolonged graphic and intrusive images of vaginal and anal detail, and of simulated masturbation.

Ofcom noted that the broadcast featured a presenter wearing a black thong and black stockings. Her top was pulled down to reveal her breasts. During the broadcast she adopted various sexual positions, including kneeling on all fours with her buttocks to camera and lying on her back with her legs spread wide apart. While doing so the presenter repeatedly: showed her anal and genital area; spat on her fingers and rubbed saliva around her anal and genital area; opened her legs to show genital detail while simulating masturbation in a realistic way – vigorously rubbing saliva on her genital area and rubbing her thong against her genitals; and spat over her breasts.

Promotion of the www.bangbabes.tv website address – for all broadcasts
In addition, after viewing the content complained of Ofcom noted that during all three broadcasts the website 'www.bangbabes.tv' was promoted. When accessed by Ofcom this website featured images of a strong sexual nature equivalent to BBFC R18-rated material ("R18-rated equivalent material") which could be readily viewed without appropriate protections. Although this R18-rated equivalent material was not broadcast on-air, Ofcom was concerned that it appeared on a website being promoted on Ofcom licensed services freely available without mandatory restricted access from 21:00.

Relevant Code rules
Ofcom requested comments from Bang Channels Limited ("Bang Channels" or "the Licensee") – which holds the licences for and complies the Tease Me channels – in relation to the following:

Tease Me 3, 30/31 October 2009, 23:20 to 00:20

  • Rule 1.24 (-1-) ('adult-sex' material is restricted to overnight services with mandatory restricted access);
  • Rule 2.1 (generally accepted standards); and
  • Rule 2.3 (material which may cause offence must be justified by context) of the Code.

Tease Me 3, 7 November 2009, 21:45 to 22:30

  • Rule 2.1; and
  • Rule 2.3.

Tease Me, 13/14 November 2009, 23:45 to 00:30

  • Rule 1.24;
  • Rule 2.1; and
  • Rule 2.3.

Ofcom sought comments in respect of the strong sexual nature of some of the content; and the promotion of a website featuring unrestricted R18-rated equivalent material.

Response

In relation to each broadcast the Licensee stated the following comments:

Bang Babes, Tease Me 3, 30/31 October 2009, 23:20 to 00:20
The Licensee stated that it did not consider the material broadcast constituted 'adult-sex' material and therefore was not in breach of Rule 1.24. With regard to Rules 2.1 and 2.3, it said that the material was broadcast post watershed on a clearly sign-posted 'adult' channel in the 'adult' section of the EPG. It stated that an infomercial was broadcast at 21:00 (as it is every night) before the Bang Babes programming started, advising viewers that the upcoming programming was adult in nature and providing instructions on how to manually restrict the channel if viewers did not wish to see it in future. It therefore considered that potential viewers were given adequate warning as to the nature of the broadcast.

Bang Channels stated that the transmission took place post watershed on an 'adult' TV channel and most reasonable viewers would expect to see behaviour of a sexual nature. It said that it did not believe the presenter's actions were offensive and that she did not simulate sex acts, but "merely behaved in a sexual manner, which was consistent with the context of the broadcast".

Bang Babes, Tease Me 3, 7 November 2009, 21:45 to 22:30 (-2-)
With regard to Rules 2.1 and 2.3 the Licensee stated that it did regret the proximity of the broadcast to the watershed. It said that, in response to this complaint, all of its production team and presenters have been reminded of the importance of observing the watershed and that they should take care not to broadcast stronger material too close to the watershed.

However, Bang Channels stated that it did not believe this material exceeded generally accepted standards. It stated that an infomercial was broadcast at 21:00 (as it is every night) before the Bang Babes programming started, advising viewers that the upcoming programming was adult in nature (see above). It stated that it did not consider the content offensive, given the context of the broadcast. It did not accept that the presenter simulated masturbation, but "merely behaved in a sexual manner, which was consistent with the context of the broadcast".

Bang Babes, Tease Me, 13/14 November 2009, 23:45 to 00:30
With regard to Rule 1.24, the Licensee said that it did not consider the content broadcast to be 'adult-sex' material and therefore it did not "have a case to answer".

With reference to Rules 2.1 and 2.3, it did not accept that the material exceeded generally accepted standards. It said that the content was broadcast well after the watershed on an 'adult' TV channel in the 'adult' section of the EPG. It stated with regard to this broadcast too that an infomercial was broadcast at 21:00 (as it is every night) before the Bang Babes programming started (see above).

As with the broadcast of 7 November 2009, Bang Channels stated that it did not believe the transmission was offensive, given the context of the broadcast, and did not accept that the presenter simulated masturbation.

Promotion of the www.bangbabes.tv website address – for all broadcasts
With regard the promotion of the website www.bangbabes.tv for all three broadcasts, the broadcaster accepted that the website contained R18-rated equivalent material. It stated that the material in question was advertising a third party website and it was not aware of the kind of material the third party provider would be advertising when they sold them the advertising space. It said that as soon as the material was bought to its attention it removed the material and ordered a complete review of all of its websites. The broadcaster continued that it was "disappointing" that Ofcom did not bring this to matter to its attention sooner so that it could have acted to remove the material faster.

Decision

Ofcom has a duty to ensure that generally accepted standards are applied to the content of radio and television services so as to provide adequate protection from the inclusion of harmful or offensive material. In relation to generally accepted standards, including those in relation to sexual material, Ofcom recognises that what is and is not generally accepted is subject to change over time. When deciding whether or not particular broadcast content is likely to fall within generally accepted standards, it is necessary to assess the character of the content itself and the context in which it is provided.

In relation to the broadcast of material of a sexual nature this normally involves assessing the strength or explicitness of the content and balancing it against the particular editorial or contextual justification for broadcasting the content. Ofcom seeks to ensure that material of a sexual nature, when broadcast, is editorially justified, appropriately scheduled and where necessary access is restricted to adults.

Broadcasters are allowed to broadcast after the watershed (and without other access restrictions) material which of a strong sexual nature as long as it is justified by the context. However, this material must not be considered to be adult sex material (i.e. it is not strong sexual images which are broadcast for the primary purpose of sexual arousal or stimulation).

Rule 1.24 of the Code 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  (-3-).

In considering the contents of each of these programmes Ofcom asked itself two questions:

  • was the content of the programme 'adult-sex' material (as regards 30/31 October and 13/14 November 2009 broadcasts); and,
  • did the broadcaster take appropriate steps to ensure that the content was provided with sufficient contextual justification so as to ensure that it fell within generally accepted standards.

Bang Babes, Tease Me 3, 30/31 October 2009, 23:20 to 00:20
Bang Babes, Tease Me, 13/14 November 2009, 23:45 to 00:30

Ofcom considered the above broadcasts together in respect of Rules 1.24, 2.1 and 2.3 of the Code. Ofcom notes that both broadcasts complained of featured the same presenter.

In relation to Rule 1.24, Ofcom examined the content of these broadcasts and considered that it was of a very strong sexual nature and on some occasions contained explicit images of genital and anal detail. For example during these broadcasts the presenter was shown apparently performing masturbation on herself (spitting on her fingers and vigorously rubbing saliva on her genital area and rubbing her thong against her genital and anal area). In Ofcom's opinion, a viewer could reasonably have perceived these sexual acts as real. The presenter was also shown pulling her buttocks apart to reveal her anus and extensive labial detail. Ofcom took account of the fact that the sequences were several minutes each in duration, and in some cases, were repeated. In Ofcom's view, the primary purpose of broadcasting this material was clearly sexual arousal. Further given the above, the material was, in Ofcom's view, of a strong sexual nature. Having assessed the programmes' content and purpose, Ofcom considered that the material broadcast constituted 'adult-sex' material. Its broadcast, without mandatory restricted access, was therefore in breach of Rule 1.24.

Ofcom is concerned that the Licensee considers material, such as genital detail and simulated masturbation in a sexual context such as this, to be acceptable for broadcast without mandatory restricted access.

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

Ofcom then went on to consider whether the broadcasts were also in breach of Rules 2.1 and 2.3 of the Code. In light of Ofcom's view that this material constituted 'adult-sex' material and was therefore unsuitable for broadcast without mandatory restricted access, the broadcasts were clearly capable of causing offence. Ofcom therefore examined the extent to which there were any particular editorial or contextual factors that might have limited the potential for offence. Ofcom noted that the programmes were broadcast a considerable time after the watershed, that viewers tend to expect stronger sexual material to be shown later at night, and that they were preceded at around 21:00 by some information giving advice to viewers. Ofcom also took account of the fact that the channels were positioned in the 'adult' section of the EPG and that viewers tend to expect the broadcast of stronger sexual material on channels in this section of the EPG than would be expected to be included on other channels.

However, in this case, given the prolonged and frequent scenes of a strong sexual nature and the inclusion of graphic images of genital and anal detail (provided for the purpose of sexual arousal), the time of broadcast and location of the channels were not sufficient to justify the broadcast of the material (-4-). The material shown was of a nature that it would have exceeded the likely expectation of the vast majority of the audience. Ofcom concluded that this content was clearly not justified by the context and was in breach of generally accepted standards.

These broadcasts were also therefore in breach of Rules 2.1 and 2.3 of the Code.

Bang Babes, Tease Me 3, 7 November 2009, 21:45 to 22:30
Ofcom considered this broadcast in respect of Rules 2.1 and 2.3 of the Code.

In terms of the content of this broadcast, Ofcom considered these sexual images to be strong and capable of causing offence. On a number of occasions the presenter positioned herself in front of the camera with her legs wide apart for prolonged periods of time. Given the thong the presenter was wearing and the close up nature of some shots, there were occasions when her anus and labial area were shown in detail. The presenter also appeared to simulate masturbation at various points in the broadcast, as she was seen rubbing her anal and vaginal area in a sexual manner.

Ofcom therefore examined the extent to which there were any particular editorial or contextual factors that might have limited the potential for offence. Ofcom noted that the programme was broadcast some (but not a long time) after the watershed and that viewers tend to expect stronger sexual material to be shown later at night. Ofcom also took account of the fact that the channel was positioned in the 'adult' section of the Sky EPG and that viewers tend to expect the broadcast of stronger sexual material on channels in this section of the EPG than would be expected to be included on other channels.

The Licensee's response regretted that this material was shown so close to the watershed but denied that it breached generally accepted standards.

However, in this case, given the prolonged and frequent scenes of a sexual nature and the inclusion of images of genital and anal detail (provided for the purpose of sexual arousal) the time of broadcast and location of the channel were not sufficient to justify the broadcast of the material . The material shown was so strongly sexual that it would have exceeded the likely expectation of the vast majority of the audience watching a channel without mandatory restricted access at this time. Ofcom was also concerned by the degree of offence likely to be caused to viewers who might come across this material unawares.

Ofcom notes the regret expressed by Bang Channels regarding the proximity of the broadcast to the watershed and the compliance measures it has taken in response to this. However, Ofcom concluded that this content was not justified by the context, breached generally accepted standards and so contravened Rules 2.1 and 2.3.

Rules 2.1 and 2.3 of the Code were therefore breached.

Promotion of the www.bangbabes.tv website address – for all broadcasts
The content of websites is not broadcast material, and therefore not subject to the requirements of the Code. However, any promotional references to websites made on air are broadcast content. Ofcom therefore has the duty and the power to regulate such references under the Communications Act 2003. Ofcom licensed services should in no circumstances promote 'adult' websites which provide unrestricted R18-rated equivalent material if such material can be accessed without appropriate restrictions in place. Ofcom is able to request that references to such websites are removed.

On the day that Ofcom was made aware of the broadcast promotions to the www.bangbabes.tv website, and that it contained R18-rated equivalent material, it immediately spoke to the broadcaster to ask it to remove the website link from all future programming.

Code Rules 2.1 and 2.3 apply to promotional references to websites made on air because they are broadcast content. The issue in this case was whether the website was suitable to be promoted on a licensed television service and so complied with these rules. When accessed – merely by clicking a button to confirm that the user was over 18 – the www.bangbabes.tv website contained clips of R18-rated equivalent material. This included video images of a woman performing oral sex on two men. This website did not require prior registration to view and its promotion on television was therefore of serious concern to Ofcom. The promotional references to the www.bangbabes.tv website on air therefore breached generally accepted standards. They were offensive because of the unprotected and explicit sexual material they led to and were not in Ofcom's opinion justified by the context, such as only being broadcast after 21:00 on a service in the 'adult' section of the Sky EPG. Ofcom therefore concluded that the promotional references to the website as broadcast on the three programmes were in breach of Rules 2.1 and 2.3 of the Code.

Ofcom notes the broadcaster's response that it was "disappointing" that Ofcom did not bring this to matter to its attention sooner so that it could have acted to remove the material quicker. As stated above, Ofcom immediately spoke to the broadcaster after becoming aware that it was broadcasting a promotion for its website which contained R18-rated equivalent material. Ofcom reminds all broadcasters that it is the responsibility of the Licensee to ensure on an ongoing basis that all broadcast output meets the requirements of the Code.

Ofcom has notified the Licensee that it is considering these contraventions of the Code for statutory sanction in light of their seriousness and/or repeated nature.

Please see the Note on page 22 of this Bulletin about Bang Media and Bang Channels.

Bang Babes, Tease Me 3, 30/31 October 2009, 23:20 to 00:20: Breach of Rules 1.24, 2.1 and 2.3

Bang Babes, Tease Me 3, 7 November 2009, 21:45 to 22:30: Breach of Rules 2.1 and 2.3

Bang Babes, Tease Me, 13/14 November 2009, 23:45 to 00:30: 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 is relevant.

  2.- The broadcaster was only asked to comment on Rules 2.1 and 2.3 for this broadcast.

  3.- For example:

  4.- Ofcom has repeatedly made clear that factors such as a channel being in the 'adult' section of the EPG and the content being broadcast after the watershed do not justify the broadcast of inappropriately strong sexual material. See for example:


In Breach

The Pad
Tease Me 3, 20 August 2009, 12:00

Introduction

The Pad is a televised daytime interactive chat programme broadcast without mandatory restricted access. It is broadcast on Tease Me 3, which is located in the 'adult' section of the Sky Electronic Programme Guide ("EPG") on channel number 959. Tease Me 3 is owned and operated by Bang Channels Limited ("Bang Channels" or "the Licensee"). Viewers are invited to contact onscreen female presenters via premium rate telephony services ("PRS"). The presenters generally dress and behave in a provocative and/or flirtatious manner.

Ofcom received a complaint about material broadcast during The Pad on 20 August 2009 at 12:00, which the complainant suggested was too sexually strong for transmission at this time. Ofcom noted that the programme featured a presenter wearing: a skimpy halter neck top, black pants, fish net stockings, suspenders and stilettos. During the broadcast the presenter adopted various positions for relatively prolonged periods of time, including kneeling on all fours, and lying on her front. While in these positions the presenter repeatedly stroked her thighs and breasts, and thrust her hips as though miming intercourse. The presenter also positioned her buttocks to camera and spanked herself lightly. Her nipples were briefly visible on several occasions.

Ofcom asked the Licensee for comments under Rule 1.3 (children must be protected from unsuitable material by appropriate scheduling).

Response

The broadcaster said that it did not believe the actions, behaviour or dress of the presenter beached the Code. It said that the material was no different to material broadcast on more mainstream channels, for example music videos. It continued that the presenter did not reveal sexual body parts, say anything sexual or simulate sex and/or sex acts. It also stated that the material was consistent with other channels broadcasting similar content at this time of day.

With regard to Rule 1.3, the broadcaster said that the material was not aimed at children and would not appeal to children, especially younger children. It stated that the nature of the channel and the position of the channel within the adult section of the EPG amounted to appropriate scheduling as it minimised the risk of children coming across it unawares. It stated that it was highly unlikely that children might have been watching at the time and said that even if this was the case the material was not strong enough to cause harm.

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 should not at any time appear to mimic or simulate sexual acts before the watershed. In this case, the female presenter, dressed in skimpy clothing, clearly adopted various sexual positions for relatively prolonged periods of time, including kneeling on all fours and kneeling with her legs open to camera (while the camera moved up and down over the front of her body), while thrusting her groin in a sexual manner as though miming sexual intercourse. During this time she also stroked her thighs and buttocks on occasions with the camera moving up and down over her body. 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 this material was clearly unsuitable for transmission before the 21:00 watershed.

In addition, the presenter was dressed in an item of clothing that was very revealing to the point where her breasts were barely covered. This meant that when adopting certain positions, such as lying on her front and bending over, the presenter's nipples were shown to viewers at various times during the broadcast. Such images of nudity are not necessarily unsuitable before the watershed. This depends on all the circumstances and the context of the material. In this case, in Ofcom's opinion, the combination of the presenter's sexual positions with nudity is unsuitable before the watershed.

Given the sexual nature of the content, the location of the channel in the 'adult' section of the EPG and its scheduling at 12:00 were not sufficient to provide adequate protection to prevent children from viewing this material. This unsuitable content was not appropriately scheduled. Ofcom has repeatedly made clear that the location of a channel, without mandatory restricted access, in the 'adult' section of the Sky EPG does not in itself provide adequate protection to under-eighteens from inappropriate material (-1-). Therefore the material breached Rule 1.3

Ofcom has notified the Licensee that it is considering these contraventions of the Code for statutory sanction in light of their seriousness and/or repeated nature.

Please see the Note on page 22 of this Bulletin about Bang Media and Bang Channels.

Breach of Rule 1.3

Footnotes:

  1.- 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/.


In Breach

The Pad
Tease Me, 6 November 2009, 12:00 to 13:00 and 14:00 to 15:00

Introduction

The Pad is a televised daytime interactive chat programme broadcast without mandatory restricted access. It is broadcast on the Tease Me channel, which is located in the 'adult' section of the Sky Electronic Programme Guide ("EPG") on channel number 912. Tease Me is owned and operated by Bang Channels Limited ("Bang Channels" or "the Licensee"). Viewers are invited to contact onscreen female presenters via premium rate telephony services ("PRS"). The presenters generally dress and behave in a provocative and/or flirtatious manner.

Ofcom received complaints about material broadcast during The Pad on 6 November 2009 between 12:00 and 13:00, and 14:00 and 15:00. The complainant suggested that the material broadcast was too strong for transmission at these times. Ofcom viewed the material and noted that both broadcasts featured the same presenter. On both occasions she was wearing skimpy black PVC knickers and a skimpy "boob tube" top with 'Playmate' written on it. During both broadcasts she was shown lying on her back with her legs wide open for prolonged periods of time. While doing so she repeatedly gyrated and thrust her pelvis as though miming intercourse. While in this position the presenter also stroked her stomach and pulled down the side of her knickers in a sexually provocative manner. The presenter also lay on her front during the programmes for prolonged periods of time. While in this position she pulled down her knickers to reveal the top of her bottom, and also raised her bottom in the air and repeatedly gyrated her pelvis in a sexual manner.

Ofcom asked the Licensee for comments under Rule 1.3 (children must be protected from unsuitable material by appropriate scheduling).

Response

The Licensee said that Tease Me TV is transmitted in the 'adult' section of the EPG. It stated that it is therefore clearly sign posted as an adult channel and as such is unsuitable to view by children at any time of day, even though the daytime content is non-'adult' in nature.

Bang Channels continued that the 'adult' section of the EPG does not sit beside any genres of interest to children and has easy to use parental controls. The broadcaster stated that in light of this it believes the material was appropriately scheduled.

The broadcaster stated that Ofcom's own research (-1-) indicates that the majority of people believe that responsibility for the protection of the under-eighteens lies as much with the parent as the broadcaster. The Licensee continued that it considered the safeguards in place were more than sufficient to prevent children viewing the channel and that at this point responsibility should pass to the parent. It therefore stated that the material did not result in a breach of Rule 1.3.

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.

Ofcom has made clear in previous published decisions what sort of material is unsuitable to be included in daytime interactive chat programmes. These decisions were summarised in a guidance letter sent by Ofcom to daytime and adult sex chat broadcasters in August 2009, and have been clarified subsequently by further findings (-2-).

In the context of daytime interactive chat programmes where the presenters generally dress and behave in a provocative and/or flirtatious matter for extended periods in order to solicit PRS calls, the presenters should not for example appear to mimic or simulate sexual acts. During these particular broadcasts the female presenter dressed in skimpy clothing adopted various sexual positions for prolonged periods of time. The content included her lying on her back with her legs wide open while she repeatedly gyrated and thrust her pelvis as though miming intercourse, while stroking her body in a sexually provocative manner. 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 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 between 12:00 and 15:00 were not sufficient to provide adequate protection to prevent children from viewing this material. Ofcom notes that the research, "Attitudes towards sexual material on television", published in June 2009, found that participants did accept that parents have a responsibility for their children's viewing. This responsibility is underlined by the fact that it is possible for parents to activate PIN controls on certain channels to restrict children's viewing. However, Ofcom also notes that other later research shows that only "around one in three households with a multichannel television service have set these [access] controls (34%)" (-3-). Ofcom therefore does not consider that the existence of parental controls offers enough protection to under-eighteens from viewing unsuitable material of this nature.

In addition, Ofcom has repeatedly made clear that the location of a channel in the 'adult' section of the Sky EPG, available without mandatory restricted access, does not in itself provide adequate protection to under-eighteens from inappropriate material shown on daytime chat channels (-4-). Therefore this unsuitable content was not appropriately scheduled.

Therefore the material breached Rule 1.3.

Ofcom has notified the Licensee that it is considering these contraventions of the Code for statutory sanction in light of their seriousness and/or repeated nature.

Please see the Note on page 22 of this Bulletin about Bang Media and Bang Channels.

Breach of Rule 1.3

Footnotes:

  1.- "Attitudes towards sexual material on television", published June 2009, http://www.ofcom.org.uk/advice/media_literacy/medlitpub/medlitpubrss/uk_childrens_ml/full_report.pdf

  2.- Elite Days Finding in Bulletin 144 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb144/; Top Shelf TV Finding in Bulletin 149 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb149/.; and Elite Days finding in Bulletin 151 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb151/Issue151.pdf

  3.- UK children's media literacy at: http://www.ofcom.org.uk/advice/media_literacy/medlitpub/medlitpubrss/uk_childrens_ml/full_report.pdf

  4.- Bang Babes 'Tease Me 2' in Bulletin 120 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb120/; 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' and 'Tease Me 3' Finding and Elite Days Finding in Bulletin 144 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb144/Issue144.pdf; Babeworld TV Finding in Bulletin 145 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb145/; Live 960 Finding in Bulletin 149 and Top Shelf TV Finding in Bulletin 149 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb149/.


In Breach

TMTV
Tease Me TV (Freeview), 3 November 2009, 05:00

It is Ofcom's policy to describe fully the content in television and radio programmes that is subject to broadcast investigations. Some of the language and descriptions used in this finding may therefore cause offence.

Introduction

Tease Me TV is a channel that provides programming of a sexual nature, available without mandatory access restrictions. It is situated in the 'adult' section of the Sky electronic programme guide. The channel broadcasts programmes based on interactive 'adult' sex chat services: viewers are invited to contact on-screen presenters via premium rate telephony services. The female presenters dress and behave in a sexually provocative way. In this programme, when the presenter took calls from viewers, these conversations were typically masked by a music track to ensure that the audience did not hear what was being said.

Ofcom received a complaint that content on the channel contained language that the complainant considered inappropriate for broadcast. On reviewing the content, Ofcom noted that at one point around 05:00, when the female presenter took a telephone call from a viewer, which was audible to viewers. Ofcom noted the presenter using the following instances of sexually explicit language:

"Dance you motherfucker".

"Fuck me so fucking hard in my cunt".

"I want you to fuck me really good and hard now. I want you to just fuck me 'til you squirt and I can see it right in that little pussy hole right there. You're going to come right in my arse are you?"

"You like a nice cunt, don't you?"

Ofcom asked Bang Media, who hold the licence and provide compliance for Tease Me TV, for their comments under the following Rules of the Code: Rule 2.1 (generally accepted standards) and Rule 2.3 (material that may cause offence must be justified by the context).

Response

Bang Media said that during the transmission of the programme in question, a microphone was left "live, resulting in the inadvertent broadcast" of the explicit language. The broadcaster acknowledged that this language was "unacceptable for transmission under the Broadcasting Code…at anytime". However, Bang Media offered the following in mitigation: the explicit language was not broadcast deliberately; and the language had been picked up by a "distant microphone" by accident. In addition, whilst acknowledging the language was audible, the broadcaster said "it would have been apparent only to a viewer who was listening intently with their television at high volume".

Decision

We noted the representations of the broadcaster that the broadcast of the explicit sexual language was not intentional; and that, in the broadcaster's opinion, it was not easily audible. However, we also noted that the broadcaster acknowledged that, under the Code, this language Ofcom considered that: the sexually explicit nature of this language for the purpose of sexual arousal broadcast on a channel without mandatory access restrictions is unacceptable at any time of day; and that, even though the language was broadcast 'off-mike', it was still audible.

In summary, Rules 2.1 and 2.3 require broadcasters that provide 'adult' sex chat services on channels without mandatory access restrictions, must protect viewers from material that is harmful or offensive and which cannot be justified by the context.
Ofcom considers that to broadcast content that consists to a large extent of a presenter using very explicit sexual language, on a free-to-air channel without any form of mandatory protection system, and without justification by the context – as here - is contrary to generally accepted standards. In reaching its decision, Ofcom was aware of a previously published Finding and several previously published decisions of Ofcom's Content Sanctions Committee (-1-) relating to sexually explicit language on adult sex chat channels.

The content was in breach of Rules 2.1 and 2.3.

Ofcom has notified the Licensee that it is considering these contraventions of the Code for statutory sanction in light of their seriousness and/or repeated nature.

Please see the Note on page 22 of this Bulletin about Bang Media and Bang Channels.

Breach of Rules 2.1 and 2.3

Footnotes:

  1.- See Breach Finding against Sex Station on Lucky Star, Ofcom Broadcast Bulletin 115, 11 August 2008, http://www.ofcom.org.uk/tv/obb/prog_cb/obb115/. See Sanctions decisions against: Satellite Entertainment Limited concerning its channel SportxxxBabes, dated 26 August 2008, paragraph 4.3, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/sportxxxbabes.pdf; Square 1 Management Limited concerning its channel Smile TV, dated 10 July 2008, paragraph 1.4, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/SmileTV.pdf ; Connection Makers Limited dated 30 November 2007, paragraph 1.4, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/babeworld.pdf


In Breach

Bang Babes
Tease Me TV (Freeview), 23 November 2009, 3:00

Early Bird
Tease Me TV (Freeview), 23 November 2009, 7:30

Introduction

Tease Me TV is a daytime chat and adult sex chat channel available from 03:00 until mid-morning on Freeview. From 03:00 until the early morning Tease Me TV broadcasts adult sex chat programming, and then until it ends the service in mid-morning it transmits a daytime chat service. Both types of programming are broadcast without mandatory restricted access. The Digital Television Programme Service licence for this service is held by Bang Media (London) Ltd ("Bang Media" or the "Licensee"). Viewers complained about inappropriate adult content allegedly shown on this channel. Ofcom therefore asked Bang Media to provide recordings of the programmes that were complained about (see above).

Condition 11 of Bang Media's licence states that the Licensee must make and retain a recording of all its programmes for a period of 60 days from broadcast, and at Ofcom's request must produce a recording "forthwith". Ofcom has made clear that recordings "must be of a standard and in a format which allows Ofcom to view the material as broadcast." (See Ofcom's Guidance notes for licence applicants for Digital Television Programme Services, paragraph 77.)

Response

Between 30 November 2009 and 15 January 2010 Ofcom was in extensive correspondence with Bang Media asking the Licensee to provide recordings of the programmes. Bang Media failed to meet the initial deadline set by Ofcom, and on request Ofcom agreed an extension to 8 January 2010.

On 8 January 2010, Bang Media provided Ofcom with an internet link to a site so that Ofcom could download recordings of the programmes. However, the quality of these recordings were not "of a standard and in a format which allows Ofcom to view the material as broadcast" (i.e. there was intermittent pixilation of images and a loss of audio). Ofcom therefore asked Bang Media for DVD copies of the programmes by an agreed deadline of 14 January 2010. As with the previous recordings, however, the quality was also not 'as broadcast'.

On 15 January 2010, Ofcom wrote to Bang Media to advise it had an option to either provide a recording of the items 'as broadcast' quality by 19 January 2010; or, failing that, submit any formal comments it wished to present regarding the failure to provide these recordings in accordance with Condition 11 of its licence.

Bang Media did not provide further recordings or comments.

Decision

It is a condition of all broadcast licences that the Licensee adopts acceptable procedures for the retention of, and production of recordings to Ofcom, and that recordings should be 'as broadcast' (i.e. the same quality in terms of both sound and picture as when originally transmitted).

In this case, Bang Media failed on several occasions, and despite repeated requests, to provide Ofcom "forthwith" with programme recordings in 'as broadcast' quality. Ofcom has therefore found Bang Media in breach of its licence.

Ofcom formally notifies the Licensee that it is considering these contraventions of the Code for statutory sanction in light of their seriousness and/or repeated nature. These breaches may be considered for sanction together with other serious and/or repeated breaches by Bang Channels Limited ("Bang Channels"). This would be on the basis that Bang Media and Bang Channels are controlled by the same person and all editorial compliance decisions regarding both Bang Media and Bang Channels are taken by one compliance team.

Please see the Note on page 22 of this Bulletin about Bang Media and Bang Channels.

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

Note: Bang Channels Limited and Bang Media (London) Limited

On 8 February 2009 in Broadcast Bulletin 151 Ofcom published a number of breaches of the Code against Bang Channels Limited ("Bang Channels"): see http://www.ofcom.org.uk/tv/obb/prog_cb/obb151/Issue151.pdf,

These breaches concerned the Tease Me adult sex chat service, for which Bang Channels holds the licence. Ofcom explained in Broadcast Bulletin 151 that as a result of these breaches, it was notifying the licensee that it was considering the imposition of statutory sanctions.

In the current Broadcast Bulletin (152), Ofcom has published further breaches of the Code as regards services for which Bang Channels holds the licences, Tease Me and Tease Me 3. Ofcom considers these breaches to be both serious and repeated.

Broadcast Bulletin 152 also contains breach findings recorded against another Licencee, Bang Media (London) Limited ("Bang Media"). These decisions relate to Bang Media's channel on Freeview, Tease Me TV.

As is made clear in Broadcast Bulletins 151 and 152, these breaches are serious and/or repeated and are therefore being considered by Ofcom for statutory sanction. Bang Media and Bang Channels are controlled by the same person and all editorial compliance decisions regarding both Bang Media and Bang Channels are taken by one compliance team, For these reasons Ofcom will consider for sanction together all serious and/or repeated Code or licence breaches for which Bang Media and Bang Channels are responsible.


In Breach

Inside Africa
CNN International, 29 September 2009, 09:30

Introduction

The CNN International channel broadcasts news, current affairs and business programming as well as documentaries on the cable, satellite and Digital Terrestrial Television (Freeview) platforms.

Turner Broadcasting System Europe Limited holds the Television Licensable Content Service (TLCS) licence for the broadcast of CNN International on both the cable and satellite platforms. On the Freeview platform, S4C2 Limited holds the Digital Television Programme Service (DTPS) licence for the broadcast of the channel to Wales (-1-), while Turner Entertainment Networks International Limited holds the DTPS licence for the broadcast of the channel to the rest of the UK.

Turner Broadcasting System Europe Limited and Turner Entertainment Networks International Limited are both owned by the same parent company, and for ease, will both be referred to as "Turner" in this finding.

The edition of Inside Africa broadcast on 29 September 2009 was sponsored by Zenith Bank. The programme contained various reports on issues relating to Africa, including:

  • the 64th United Nations General Assembly, including speeches made by President Obama and Colonel Gaddafi;
  • Africa's role in the General Assembly; and
  • climate change issues affecting Africa as discussed at the UN General Assembly's one day climate change summit.

The programme also contained an interview with the Kenyan Prime Minister about his relationship with the President of Kenya and how the Kenyan government has dealt with corruption, as well as a segment called African Business Week, which included two news headlines regarding African businesses.

Inside Africa was also described on CNN International's website as "a weekly, half-hour, current affairs program that provides global viewers with an inside look at political, economic, social and cultural affairs and trends in Africa".

A viewer objected to the programme being sponsored because it was a current affairs programme. The Code defines a current affairs programme as "one that contains explanation and analysis of current events and issues, including material dealing with political or industrial controversy or with current public policy".

Ofcom asked Turner for its comments on the programme with regards to Rule 9.1 of the Code which states that news and current affairs programmes may not be sponsored.

Response

Turner said that having reviewed the programme it considered that the topics covered were of a current affairs nature. It said that Inside Africa had been a "mainstay of CNN's feature programming output since 2000…. Throughout the years the programme has consistently explored the challenges and opportunities facing Africa – as seen through the prism of different cultures and religions, the mediums of art and literature, seeking to capture the hopes, dreams and aspirations of its people, leaders and nations". Turner continued that "It would appear that there has been a recent inadvertent editorial shift" in the nature of the programme.

Turner told Ofcom that the editorial team responsible for the programme has now been reminded of the relevant rules in relation to sponsorship and that it intends to retrain all relevant members of staff including those based in Africa. CNN's lead producer will also be relocated from the network's headquarters in Atlanta in the USA to Johannesburg in South Africa to "help to ensure the show stays true to its editorial mission as...feature programming focussing on African culture".

Turner said that it would also change the description of the programme which appeared on CNN's website.

S4C2 Ltd did not wish to make any additional representations to those submitted by Turner.

Decision

Rule 9.1 of the Code prohibits news and current affairs programmes on television from being sponsored. This rule is directly derived from the requirements of the Audiovisual Media Services (AVMS) Directive (-2-). It supports the important principle that news and current affairs must be reported with due accuracy and presented with due impartiality. A broadcaster's editorial control over the content of its news and current affairs programming should not be, or appear to be, compromised.

In this case Ofcom noted that the programme contained the following explanation and analysis of current events and issues:

  • the 64th United Nations General Assembly (held in September 2009, the same month in which the programme was broadcast), including speeches made by President Obama and Colonel Gaddafi;
  • Africa's role in the General Assembly;
  • climate change issues affecting Africa as discussed at the UN General Assembly's one day climate change summit; and
  • a segment called African Business Week, which included two news headlines regarding African businesses.

Ofcom also noted that Turner had acknowledged that the programme was a current affairs programme and therefore should not have been sponsored.

In view of the above, Ofcom therefore found Inside Africa in breach of Rule 9.1. This breach will be held on record in relation to the following licences:

  • TLCS 103 licensed to Turner Broadcasting System Europe Limited.
  • DTPS 042 licensed to Turner Entertainment Networks International Limited.
  • DTPS 043 licensed to S4C2 Limited.

Breach of Rule 9.1

Footnotes:

  1.- Section 362(2) of the Communications Act 2003 states that the provider of the service is "the person with general control over which programmes and other services and facilities are comprised in the service (whether or not he has control of the content of individual programmes or of the broadcasting or distribution of the service)". While Turner makes the editorial decisions about CNN International, S4C2 Limited holds the licence for the broadcast of the channel on the Freeview platform in Wales, and is therefore responsible for the service.

  2.- Article 3(f)(4) of the Audiovisual Media Services Directive states that: "News and current affairs programmes shall not be sponsored".


In Breach

Sponsorship of The Simpsons
Sky 1, October 2009, various dates and times

Introduction

The Simpsons on Sky 1 is sponsored by Currys, the electrical retailer. Some of the sponsorship credits in the campaign allude to the sponsor's delivery service. Others revolve around the following services provided by the sponsor: recycling, car carrying and installation.

Examples of the credits include:

Delivery
A man is shown allowing his pet dog to lick a dirty plate clean before replacing it in a cupboard. The scene is accompanied by the voiceover "Need a dishwasher? – The Simpsons on Sky, delivered to you by Currys in a flash".

The strapline "Currys we can help" is also included in text at the bottom of the screen.

Recycling
A man is shown standing on a hill next to an old television. As he unlocks his car in readiness to load the television into it, the television begins to roll away. The scene is accompanied by the voiceover "Want to recycle without the hassle? – Currys, we can help".

Car carry service
A woman is shown struggling across a windy car park carrying a large television box. The scene is accompanied by the voiceover "Need a hand to your car? – Currys, we can help".

Installation
Two men wearing Currys uniform are shown fixing a television to a wall, accompanied by the voiceover "Trouble installing?"

In the credits referring to the re-cycling, car carry and installation services, the strapline "Currys we can help" is included in text at the bottom of the screen with "Sponsor of The Simpsons" in smaller text just above it.

Ofcom sought the broadcaster's comments on the credits under Rule 9.13, which 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 a third party."

This rule implements the requirements of European legislation, the Audiovisual Media Services (AVMS) Directive. The AVMS Directive states that broadcasters can only transmit a set amount of advertising per hour. Sponsorship credits are exempt from this limit and are treated as part of the sponsored programme. Therefore, to ensure that sponsorship credits are distinct from advertising, the Directive requires that sponsored programmes "shall not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those products or services".

Guidance issued by the European Commission on the interpretation of this requirement states that there should be "no explicit reference to the products or services of the sponsor during the [sponsored] programme, except where the reference serves the sole purpose of identifying the sponsor or making explicit the link between the programme and the sponsor".

Rule 9.13 prevents credits effectively becoming advertisements and therefore increasing the amount of advertising transmitted.

Response

Sky noted that, in advance of the credits' transmission, it had sought and had been given informal advice by Ofcom on the campaign's compliance with Rule 9.13, Sky was of the view that "Ofcom had confirmed the credits were compliant", and accordingly, Sky considered that the credits complied with the Code.

Sky believed the point at issue was the strapline "Currys we can help". Sky did not consider these words could be construed as either an advertising message or call to action. The broadcaster was of the view that the credits did not encourage the purchase of goods or services from Currys. Rather, they informed viewers that Currys can help viewers with certain issues in certain circumstances e.g. "if the viewer wants to recycle white goods, Currys can help".

Sky asserted that the credits contained neither specific nor detailed advertising messages about the products or services offered by the sponsor. Nor did they make advertising claims that were either implicitly or explicitly capable of objective substantiation. The statement "we can help", within the context of the scenarios set out in the credits, was simply a generalised statement of fact. Any reference to goods or services provided by Currys was made to help identify Currys as a sponsor of the programme and to identify the fact that in certain situations, Currys can help.

Decision

Previous Broadcast Bulletins (-1-) have stated that the purpose of a sponsorship credit is to inform the audience when a programme is sponsored and by whom. Credits are not permitted to be advertisements and should focus on the sponsorship arrangement and not the sponsor or its goods or services.

Rule 9.13 permits a limited amount of information about the sponsor, including references to its products and services, in credits on the basis that this can help identify the sponsor or help associate the sponsor with the sponsored content. However, credits must be distinct from advertising and not contain advertising messages such as promotional statements about the sponsor or the products or services it offers.

Delivery credits
In relation to the credits in which the sponsor is referred to as "delivering" the sponsored programme, Ofcom notes that these credits focus on the sponsorship. While alluding to the sponsor's delivery service, the voiceover clearly refers to the sponsorship arrangement. There is no direct reference to services provided by the sponsor. While these credits link the sponsorship arrangement to the sponsor's delivery service, Ofcom judged that, on balance, these credits did not include advertising messages and therefore did not breach Rule 9.13.

Not in breach of Rule 9.13

Recycling, car carrying and installation credits
In the case of the credits referring to the sponsor's recycling, car carrying and installation services, the juxtaposition of the strapline "Currys, we can help" alongside specific questions ("trouble installing?", "need a hand to your car?" and "want to recycle without the hassle?") clearly imparts information about the services offered by the sponsor. In Ofcom's opinion, the primary focus of these credits is the sponsor's services and not the sponsorship arrangement: the sponsorship message is included in text only and is the least prominent information in the credits.

Ofcom concludes that, in the context in which they are made, the references to the sponsor's services in these credits are promotional. The principle purpose of the credits appears to be to advertise these services and not to identify the sponsorship arrangement. As such, the credits in the campaign that refer to the sponsor's recycling, car carrying and installation services are in breach of Rule 9.13.

Informal guidance given by Ofcom
Ofcom does not accept Sky's view that, in advance of transmission, Ofcom had "confirmed that the credits were compliant".

Ofcom is a post-transmission regulator and has always made clear to its licensees that it does not offer pre-transmission clearance or compliance approval. As stated in the Code, Ofcom does, however, offer general guidance on the interpretation of the Code to assist its licensees. It nevertheless remains the responsibility of the broadcaster to comply with the Code.

In this case, Ofcom was of the view that its decision to record breaches of Rule 9.13 was consistent with the general guidance it had given Sky on the campaign.

Breaches of Rule 9.13

Note to Broadcasters:

In advance of a programme's transmission, Ofcom only offer general guidance on the interpretation of the Code. Ofcom does not and cannot clear material prior to broadcast. Any such advice is given on the strict understanding that it will not affect Ofcom's discretion to judge cases and complaints after transmission and will not affect the exercise of Ofcom's regulatory responsibilities. Broadcasters should seek their own legal advice on any compliance issues arising. Ofcom will not be liable for any loss or damage arising from reliance on informal guidance.

Footnotes:

  1.- See http://www.ofcom.org.uk/tv/obb/prog_cb/obb130/ and http://www.ofcom.org.uk/tv/obb/prog_cb/obb146/.


In Breach

Dum Hai Tou Entertain Kar
ARY Digital, 3 December 2009, 11:00

Introduction

ARY Digital is a general entertainment channel serving a UK Pakistani audience, and is broadcast on cable and satellite platforms. Dum Hai Tou Entertain Kar ("Entertain, if You Dare") is a Pakistani talent show. Ofcom received a complaint that in this particular episode a contestant came on stage with a live snake and proceeded to bite the live snake's head off, and then skin the snake with his hands and teeth while continuing to eat it. The complainant considered this content ("the Snake Contestant content") was inappropriate for broadcast.

Having reviewed the content, Ofcom asked ARY Digital (UK) Limited ("ARY"), which is the licence holder and provides compliance for the channel, for its comments under the following Rules of the Code: Rule 1.3 (children must be protected from unsuitable material by appropriate scheduling); and Rule 2.3 (offensive material must be justified by the context).

Response

ARY apologised for any offence caused by the Snake Contestant content, and said that it would "try to make sure that such content is kept separate from the UK viewers" in future.

With regard to Rule 1.3, the broadcaster said that the programme ("the 3 December broadcast") had been originally broadcast at 22:00 on 2 December 2009 ("the 2 December broadcast") from its transmission department in Pakistan. ARY said it became aware of the Snake Contestant content just after the 2 December 2009 broadcast had been transmitted. The broadcaster said it immediately contacted its transmission department in Pakistan to ensure that the same programme was not broadcast on the following day i.e. the morning of 3 December 2009, as originally scheduled. However, ARY said: "Unfortunately, the following morning with the shift change in the transmission department, this message was lost and this same episode was transmitted". In conclusion, the broadcaster questioned the number of children that might have been watching the programme on 3 December 2009 given that it took place on a weekday morning during school time.

With regard to Rule 2.3, ARY said the Snake Contestant content had to be seen in the context of this particular programme and its format. As well as including aspiring singers, actors and other performers, the programme "also invited anyone who could amaze the audience and the judges by doing something extraordinary". The broadcaster said that Dum Hai Tou Entertain Kar was produced in Pakistan, and ARY had scheduled it for a UK audience after watching one sample episode. However, the broadcaster added that "we were unaware that this episode…include[d] such an act where it will disturb a viewer".

Decision

Ofcom recognises that the talent show format proves highly popular amongst audiences. It is therefore unsurprising that: many broadcasters should seek to feature this programme format in their schedules; and that broadcasters serving ethnic minorities would seek to provide talent shows focused towards the communities they serve. Ofcom further recognises that, at times, some of the contestants performing in talent shows will be displaying skills that may seem bizarre and strange compared to the majority of performances on display. Broadcasters are free to include any such contestants, as long as the content complies with the Code.

In this case, a talent show contestant was shown bringing a live snake on stage. After holding the live snake in his teeth, the contestant was then shown biting the snake's head off. The programme then continued to show the contestant biting into the snake and gradually ripping off and eating the skin and flesh of the animal to leave just its skeleton. Ofcom noted that this whole sequence lasted several minutes and, at several times, the shocked reactions of both the studio audience and two judges were shown on screen.

Ofcom considered that this explicit and graphic killing, and then eating, of a snake by the talent show contestant was clearly unsuitable for children and had the potential to cause offence to viewers in general. This is because the snake was clearly alive before its head was bitten off and no measures appeared to have been taken before the killing to lessen any pain; the contestant proceeded to skin and then devour the snake's flesh in front of the audience; the whole sequence lasted several minutes, including a number of close ups; and the sequence was designed purely for entertainment.

In Ofcom's view this material was not appropriately scheduled so as to provide the necessary protection to child viewers. Although this content was shown on a weekday morning during school time it was quite possible that children may have been watching, some unaccompanied. ARY Digital is a general entertainment channel and a talent show often attracts young viewers. This material clearly exceeded the likely expectations of the audience for this programme shown on ARY Digital at this time.

Ofcom notes that this was acknowledged by the broadcaster's attempts to ensure that the 2 December broadcast was not repeated on the morning of 3 December 2009. However, it is clear that these attempts failed and the programme was broadcast at a time when there was a material chance that children, including some of the very youngest children, may have been in the audience. As a consequence, Ofcom considered that this was a breach of Rule 1.3.

Concerning Rule 2.3, for the reasons set out above this material had the potential to offend. The issue was therefore whether it was justified by the context. In assessing context Ofcom has regard to factors such as the editorial content of the programme, the service on which it is broadcast, the degree of offence likely to be caused and the effect of the material on viewers who may come across it unawares.

ARY stated that the Snake Contestant content had to be seen in the context of this particular programme inviting anyone on to perform who could do something "extraordinary," and that the show is produced in Pakistan. Even though the programme was entitled "Entertain, if You Dare," the content of this show like all others, whether produced in the UK or elsewhere, must comply with the Code when broadcast on a licensed service. It was clear to Ofcom that this material was capable of causing considerable offence through its graphic nature, that it would have exceeded audience expectations for this programme on this general entertainment channel, and that it would have surprised and shocked some viewers who came across it unawares. In reaching its decision, Ofcom took account of the broadcaster's right to freedom of expression , and the fact that this was a talent show where the channel's audience would have come to expect that some of the performances would have likely to been out of the ordinary. However, this offensive content was not justified by the context which primary purpose is a programme to entertain the audience and was therefore in breach of Rule 2.3.

Ofcom considered that ARYs' compliance procedures have been shown to be seriously inadequate by this case. In particular, we are concerned that the broadcaster had not viewed this particular episode at all prior to broadcast. Instead on its own admission it based its compliance decisions for this programme, and the whole series from which it came, on viewing only one episode in this series. Ofcom reminds all broadcasters of the need to ensure compliance is undertaken systematically across all programme output.

In addition, we are concerned that despite attempts to communicate with its transmission department following the 2 December broadcast, ARY was not able to prevent the programme, including the Snake Contestant content, being repeated on 3 December 2009. It is a matter for broadcasters how their transmission facilities are arranged, including the decision as to whether such facilities are located overseas. However, all broadcasters must ensure that they have systems in place to ensure they have adequate control over programme scheduling to ensure compliance with the Code.

Breach of 1.3 and 2.3


In Breach

Glasvegas
MTVN HD, 14 December 2009, 12:23

Introduction

MTVN HD is a High Definition music and children's channel available on satellite and cable platforms. The programme in this case was a recording of a song performed live in session ("the Session") by the band Glasvegas. Ofcom received one complaint that this programme contained two instances of the most offensive language before the watershed, when the complainant's four year old child was watching.

Ofcom noted that the programme contained two instances of the word "fucking". It therefore asked MTV Networks Europe ("MTVNE"), which holds the licence and provides compliance for MTVN HD, for its comments under Rule 1.14 of the Code (the most offensive language must not be broadcast before the watershed).

Response

MTVNE apologised unreservedly for this incident and expressed its disappointment that this had happened in close proximity to a similar breach recorded by Ofcom (-1-) (the "Lady Gaga Breach"). MTVNE said that the present case and the Lady Gaga Breach were "very different in nature and should not be interpreted as a sign that MTVNE is taking its compliance responsibilities in anything but the most serious manner".

The broadcaster explained that this programme consisted of a recording of the band Glasvegas performing one song from the Session. This song was labelled on screen as "Daddy's Gone". Following the broadcast of the programme MTVNE said it had launched an investigation. This had shown that due to human error a different song ("Cheating Heart") (-2-) from the Session had been copied onto the tape for broadcast, and mislabelled as the song "Daddy's Gone". MTVNE said that when the Session had been originally complied for broadcast, Cheating Heart was the only song that had been deemed appropriate for broadcast only after the watershed.

MTVNE said that as a result of its investigation: senior staff had spoken to the member of staff responsible; all content from the Session had been correctly edited to ensure compliance with the Code; and all staff had been "further reminded of the importance of vigilance at all times through their line managers and through a company-wide, all staff meeting".

Decision

Ofcom's research (-3-) indicates that most viewers find the word "fuck" (and its derivatives) as one of the most offensive words. Ofcom notes MTVNE's apology and steps taken to remind staff of the importance of ensuring compliance with the Code. However, the broadcast of the most offensive language before the watershed was a clear breach of Rule 1.14.

Breach of Rule 1.14

Footnotes:

  1.- See MTV Live: Isle of MTV music festival, featuring Lady Gaga, Broadcast Bulletin 149, dated 11 January 2010.

  2.- The full title of this song was: It’s My Own Cheating Heart That Makes Me Cry.

  3.- "Language and Sexual Imagery in Broadcasting: A Contextual Investigation", September
2005.


In Breach

Big Fight Live
ITV4, 29 November 2009, 11:30

Introduction

This edition of Big Fight Live was a repeat of the live coverage of the British and Commonwealth Middleweight Boxing Championships, broadcast the previous evening on the same channel. During a ringside conversation in between rounds, a competitor referred to an injury he had sustained by saying "fuck the cut". About an hour later, in a similar scenario, a corner-man encouraged a boxer, stating "if you don't win this fight, that's you fucking done".

Ofcom received two complaints from viewers who considered this language was inappropriate given the programme's weekend morning scheduling. Ofcom asked ITV Broadcasting Limited ("ITV"), who complied the programme on behalf of the ITV Network for ITV4, for its comments under Rule 1.14 of the Code (the most offensive language must not be broadcast before the watershed).

Response

ITV explained that during the original live broadcast the commentator and programme makers had not identified the first instance of offensive language and as a result no apology was made. However, later in the fight the commentator had detected the language used by the corner-man and had immediately apologised to viewers during the live broadcast.

As regards the repeat broadcast of the fight ITV advised that no compliance advice was sought before its re-broadcast. As a result both instances of the offensive language were broadcast the following morning. ITV apologised and accepted full responsibility for the circumstances that led to the broadcast of the offensive language.

Following this incident, ITV reviewed its compliance procedures for live sports events. A compliance advisor is now appointed to liaise with the production team for all such programmes prior to their transmission, and any incidents of this kind during live transmission will be reported to them for advice before any repeat broadcast. It was therefore confident that this would minimise the risk of a recurrence.

Decision

Ofcom's research (-1-) indicates that the word "fuck" and its derivatives are examples of the most offensive language. Rule 1.14 states that the most offensive language must not be broadcast before the watershed. Ofcom noted ITV's review of its compliance procedures to ensure that the issue of offensive language in live sports events is properly considered prior to such events and where necessary before any repeat broadcasts.

It should be noted that Rule 1.14 applies to all channels including those with low child audience figures such as Big Fight Live. This is because measures must be in place to provide adequate protection to child viewers, even those that come across material unawares.

The broadcast was therefore in breach of the Code.

Breach of Rule 1.14

Footnotes:

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


In Breach

The Passions of Girls Aloud
ITV2, 16 December 2009, 08:30

Introduction

This documentary series followed the members of the all-girl pop group "Girls Aloud" as they worked on individual challenges that were important to them. In this episode, the band member Nicola Roberts attempted to create her own make-up range for women with fair skin.

During the programme, Nicola Robert's mentor used the word "fuck". Ofcom received a complaint from a viewer who believed the use of such language was unsuitable before the watershed. Ofcom asked ITV Broadcasting Limited ("ITV") who complied the programme on behalf of the ITV Network for ITV2 to comment with regard to Rule 1.14 (the most offensive language must not be broadcast before the watershed).

Response

ITV said the programme had been viewed by its compliance staff prior to first transmission after the watershed. The production team were asked to create an edited version for daytime transmission. But in doing so they made an error and one use of the word "fuck" was not masked. As a result, when the programme was repeated on the morning of 16 December 2009, the version with the offensive language was transmitted.

The broadcaster said it received three complaints about the language and had offered its unreserved apology to these complainants. ITV stated that ratings suggested a negligible child audience, but it accepted that the strong language should not have been broadcast at this time of the morning. It assured Ofcom that steps have now been taken to ensure this version of the programme is not repeated again in daytime schedules.

Decision

Ofcom's research (-1-) indicates that the word "fuck" and its derivatives are examples of the most offensive language. Rule 1.14 states that the most offensive language must not be broadcast on television before the watershed.

Ofcom acknowledged the apology from ITV and its assurances not to broadcast this version of the programme again. However, the broadcast of this strong language during the morning when children could have been watching is a breach of Rule 1.14 of the Code.

Breach of Rule 1.14

Footnotes:

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


In Breach

Have I Got News For You
Dave, 27 December 2009, 14:40

Introduction

Have I Got News For You is a long-running satirical quiz series originally broadcast on BBC Two. This programme was a repeat broadcast, transmitted on the channel Dave, which is an entertainment channel available on the satellite and cable platforms and Freeview.

During the programme the following caption was shown on screen:

"I couldn't give a flying fuck."

One viewer complained that the use of such language at this time of broadcast was unsuitable as her child had been watching. The channel Dave is operated and complied by UKTV. Ofcom wrote to UKTV, asking it to comment under Rule 1.14 (the most offensive language must not be broadcast before the watershed).

Response

UKTV apologised unreservedly for the transmission of the offensive language. UKTV explained that due to human error their outsourced partner (which complied this series on their behalf) had failed to identify and edit out the offending language. UKTV said its partner has taken immediate action to prevent such errors happening in the future. This included disciplining the staff member responsible for the mistake and retraining compliance staff.

Decision

Ofcom's research (-1-) on offensive language identified that the word "fuck" and its derivates are examples of the most offensive language. Rule 1.14 makes clear that the most offensive language must not be broadcast on television before the watershed.

Ofcom notes UKTV's apology and the compliance measures taken in response to the error. In this case, however, Ofcom was concerned that the outsourced compliance procedures (for which UKTV remained ultimately responsible at all times) were not sufficiently robust to pick up the obvious use of the word "fuck" (which stayed on screen for approximately 4 seconds) in this pre-recorded programme. Ofcom has therefore found the broadcast in breach of Rule 1.14.

Breach of Rule 1.14

Footnotes:

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


Not in Breach

Dancing on Ice
ITV1, 31 January 2010, 18:15

Introduction

Dancing on Ice is a well-established programme format in which, over a series of weeks, a collection of ice-skating pairs consisting of one celebrity and one professional skater compete in an ice-skating talent contest.

Each week, after each couple has performed, their performances are judged and given a mark by a panel of judges. Ofcom received 443 complaints concerning this particular edition of the programme, regarding the comments made by one of the judges, Jason Gardiner, about the performance by the former Olympic swimmer, Sharron Davies. Complainants considered the comments offensive and upsetting and unsuitable to be heard by children.

Ofcom noted that as part of his comments about the initial routine performed by Sharron Davies and her professional partner, Pavel Aubrecht, Jason Gardiner said the following:

"It was like watching faecal matter that won't flush – it goes around and around and around and in the end it doesn't go anywhere."

Ofcom considered the complaints under Rule 1.3 (children must be protected by appropriate scheduling) and Rule 2.3 (material that may cause offence must be justified by the context).

Decision

Dancing on Ice is a popular and well-known programme format, which features ice-skating performances which are voted upon by a panel of judges and the general public. The panel of judges give their comments about the performances as well as marking them. It is well-established in these types of programmes that the judges comment on performances in a manner that some may find offensive.

In this particular edition, after the initial routine performed by Sharron Davies and Pavel Aubrecht, Jason Gardiner made the following remarks:

"OK, I'm giving you a '2' for improved leg lines and arm lines – absolutely – but for me this is also about performance and your skating is on one level; and I don't know what it was – it was just like – the brown costume and everything. It was like watching faecal matter that won't flush – it goes around and around and around and in the end it doesn't go anywhere. You've got to give me a performance level, there's got to be some sort of a journey with you."

Ofcom recognised that the reference to "faecal matter" was potentially offensive to a number of people. However, under Rule 2.3 broadcasters can transmit offensive content, as long as it is justified by the context. Context includes such factors as the editorial content of the programme, the degree of offence likely to be caused and the likely expectation of the audience.

In this case, Jason Gardiner used what Ofcom believed was unusual language to describe the performance of Sharron Davies. However, Ofcom considered that Jason Gardiner is well established as the acerbic 'nasty' judge on Dancing on Ice, and seems quite content to play up to his 'pantomime villain' image within the format of the show. This was demonstrated by the fact that every comment he makes is almost invariably booed by the audience, as was the case regarding the comments he made about Sharron Davies on this occasion.

Ofcom also considered that Jason Gardiner's remarks were fleeting and seemed to be a passing reference to a combination of the colour of Sharron Davies' costume and a comment on what Jason Gardiner perceived to be the poor standard of her performance. Further, we noted that: after hearing Jason Gardiner's remarks, several of the other judges immediately distanced themselves from Jason Gardiner's comments and said they felt that Sharron Davies had given a good performance; the presenter, Holly Willoughby, swiftly moved on to the next judge, Karen Barber, and pointedly asked her not to comment on Sharron Davies' costume; and in their substantive comments, the judges following Jason Gardiner made very positive remarks about the performance of Sharron Davies.

In addition, we considered that the comment: was not dwelt upon; could be considered to be more of a medical term rather than a more commonly-used offensive word; was used in the context of a value judgement about a performance, rather than against a particular person, by a judge in a talent competition, whose role is to provide critical judgements on different performances; and would have been likely to have been recognised as part of the 'cut and thrust' of this contest, by the majority of the audience, familiar with this programme format. Ofcom considered that the audience to this programme, in general, would have come to expect negative comments being expressed by the judges about particular contestants, and that this would have been particularly the case concerning comments made by Jason Gardiner.

Given the above, and taking into account the broadcaster's right to freedom of expression (-1-), Ofcom considered that the content, though potentially offensive to some in the audience, was justified by the context. It therefore was not in breach of Rule 2.3.

We noted that a number of complainants expressed concern that the term "faecal matter" was unsuitable to be heard by children who might have been watching. While Dancing on Ice is intended for a family audience, it is not a programme that is primarily aimed at children. Ofcom considered that most children would be unfamiliar with this term. In any event, we consider that, while some may consider it to be offensive, the word is an accepted medical term rather than a commonly-used form of offensive language. Therefore, Ofcom considered that the content in this case was appropriately scheduled, and was not in breach of Rule 1.3.

Not in Breach of Rules 1.3 or 2.3

Footnotes:

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

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Related Items

a) Ofcoms Broadcasting Code (the Code) the most recent version of which took effect on 28 February 2011 and covers all programmes broadcast on or after 28 February 2011.

Note: Programmes broadcast prior to 28 February 2011 are covered by the version of the Code that was in force at the date of broadcast.

b) Programmes broadcast prior to 16 December 2009 are covered by the 2005 Code which came into effect on 25 July 2005 (with the exception of Rule 10.17 which came into effect on 1 July 2005).

c) Code on the Scheduling of Television Advertising (“COSTA”).

d) Other codes and requirements that may also apply to broadcasters, depending on their circumstances. These include the Code on Television Access Services (which sets out how much subtitling, signing and audio description relevant licensees must provide), the Code on Electronic Programme Guides, the Code on Listed Events, and the Cross Promotion Code.