Broadcast Bulletin Issue number 154 22/03/10

Bang Channels Limited and Bang Media (London) Limited, GMTV with Lorraine, Vicky Gill, Navrang, Hot Country, Dickinson’s Real Deal, Dispatches: Inside Britain’s Israel Lobby, Advertising scheduling, Complaint by Mr G, Complaint by Miss Dawn Brown

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

Notice of Direction

Bang Channels Limited (“Bang Channels”) holds a broadcasting licence for television services known as Tease Me, Tease Me 2, Tease Me 3. These services are transmitted by satellite on Sky in channel numbers 912, 948 and 959 respectively.

Bang Media (London) Limited (“Bang Media”) holds a broadcasting licence for the television service on Freeview known as Tease Me TV.

Ofcom has recently published in Broadcast Bulletins 151, 152 and 153 various breaches of the Broadcasting Code against each of Bang Channels and Bang Media. Ofcom also published various breaches of Condition 11 (retention and production of recordings) of their Licences. Since these breaches were serious and repeated, Bang Channels and Bang Media were warned that Ofcom was considering these contraventions for statutory sanction.

Despite these published findings, Ofcom was concerned that Bang Channels and Bang Media were continuing to transmit content that is in breach of the Code in that it appears similar in nature to that has already found in breach of the Code on a number of occasions.

On 12 March 2010, under the terms of its licence, Ofcom directed Bang Channels and Bang Media to comply with the following Directions.

Pursuant to Condition 17(1) of TLCS licences numbers 933, 1015 and 1231:

OFCOM NOW FORMALLY DIRECTS:

Bang Channels Limited, the holder of TLCS licences 933, 1015 and 1231 – in respect of the provision of the services known as ‘Tease Me’, ‘Tease Me 2’ and ‘Tease Me 3’ (‘the Licensed Services’)

• to comply forthwith with the Broadcasting Code (in particular sections 1 and 2) and Condition 11 of its licence (retention and production of recordings) and to act in accordance with any guidance published or provided by Ofcom concerning material broadcast by daytime and adult sex chat television services, including (but not limited to) that provided in or by: the Guidance Notes to section 1 and 2 of the Broadcasting Code, the letter dated 3 August 2009 from Ofcom to all daytime and adult sex chat channels; the Ofcom breach findings against Bang Channels Limited published on 6 July 2009 and accompanying Note to Daytime and Adult Sex Chat Service Broadcasters in Ofcom Broadcast Bulletin 137; the breach findings against Bang Channels Limited published on 26 October 2009 and accompanying Note to Adult Sex Chat Broadcasters in Broadcast Bulletin 144; the breach findings against Bang Channels Limited published on 8 February 2010 in Bulletin 151; the breach findings against Bang Channels Limited and Bang Media (London) Limited published on 22 February 2010 in Bulletin 152; and the breach findings against Bang Channels Limited published on 8 March 2010 in Bulletin 153;
• to stop transmitting forthwith any content which, either by its nature or in the manner in which it is broadcast (e.g. pre-watershed or without mandatory restricted access), is materially similar to that already found in breach of the Broadcasting Code by Ofcom in the published breach findings against Bang Channels Limited and Bang Media (London) Limited referred to immediately above; and
• immediately to confirm these actions to Ofcom in writing by no later than 5pm on Monday 15 March 2010 .

Under Conditions 28 and 29 of the above mentioned TLCS licences, failure to comply with a Direction given by Ofcom could give rise to consideration of a statutory sanction and may result in the revocation of the licences referred to above.

Pursuant to Condition 17(1) of DTPS licence number 078:

OFCOM NOW FORMALLY DIRECTS:

Bang Media (London) Limited, the holder of DTPS licence 078 – in respect of the provision of the service known as ‘Tease Me TV’ (‘the Licensed Service’):

• to comply forthwith with the Broadcasting Code (in particular sections 1 and 2) and Condition 11 of its licence (retention and production of recordings) and act in accordance with any guidance published or provided by Ofcom concerning material broadcast by daytime and adult sex chat television services, including (but not limited to) that provided in or by: the Guidance Notes to section 1 and 2 of the Broadcasting Code, the letter dated 3 August 2009 from Ofcom to all daytime and adult sex chat channels; the Ofcom breach findings against Bang Channels Limited published on 6 July 2009 and accompanying Note to Daytime and Adult Sex Chat Service Broadcasters in Ofcom Broadcast Bulletin 137; the breach findings against Bang Channels Limited published on 26 October 2009 and accompanying Note to Adult Sex Chat Broadcasters in Broadcast Bulletin 144; the breach findings against Bang Channels Limited published on 8 February 2010 in Bulletin 151; the breach findings against Bang Channels Limited and Bang Media (London) Limited published on 22 February 2010 in Bulletin 152; and the breach findings against Bang Channels Limited published on 8 March 2010 in Bulletin 153;
• to stop transmitting forthwith any content which, either by its nature or in the manner in which it is broadcast (e.g. pre-watershed or without mandatory restricted access), is materially similar to that already found in breach of the Broadcasting Code by Ofcom in the published breach findings against Bang Channels Limited and Bang Media (London) Limited referred to immediately above; and
• immediately to confirm these actions to Ofcom in writing by no later than 5pm on Monday 15 March 2010 .

Under Conditions 28 and 29 of the above mentioned DTPS licence, failure to comply with a Direction given by Ofcom could give rise to consideration of a statutory sanction and may result in the revocation of the licence referred to above.

In Breach

GMTV with Lorraine
GMTV, 14 January 2010, 08:30

Introduction

GMTV with Lorraine is a weekday morning programme featuring discussions on lifestyle, fashion and entertainment. The programme includes a regular feature called Deals of the Week, in whichguestMartin Lewis offers viewers advice on current consumer deals. A viewer objected to these features on the following grounds:
 “How does GMTV keep editorial and advertising separate given that its money expert Martin Lewis broadcasts what listeners will trust is editorial but always directs viewers to his business moneysavingexpert.com which is a sales business?”
We viewed an example of Deals of the Week broadcast on 14 January 2010. During this item Mr Lewis discussed gym membership deals, referring to free passes that were available, and told viewers:
“… to chose a gym make sure you get one of the free passes. Now these are some of those that are available with vouchers you can print off the internet now. Guess what, all on GM.TV”

Mr Lewis also discussed current restaurant deals and referred to specific vouchers, stating:

“…all of those available via the website”.

Ofcom viewed GMTV’s web page at the time of broadcast. The page contained
information on the deals discussed in the programme, including the information provided in the programme. However, to obtain full details of these offers, including the relevant vouchers, viewers were required to click through using “Useful Links” to Mr Lewis’ own website, moneysavingexpert.com.

We sought GMTV’s comments on the complaint under Rule 10.3 of the Code – which states that products and services must not be promoted in programmes.

Response

GMTV explained that it received no payment from Martin Lewis in respect of either his appearance on GMTV or any reference to moneysavingexpert.com on GMTV’s website. GMTV said that, in common with most expert contributors to the programme, Martin Lewis is paid for his appearances.

GMTV stated that during the programme in question, Martin Lewis provided a considerable amount of information potentially helpful to those contemplating gym membership, referring directly to a gym savings website and advising viewers to avoid locking themselves into a 12 month contract. He also mentioned a number of fitness chains that offered free trials. GMTV said it would be open to viewers to take this information and research offers of free passes at any of the chains mentioned without visiting gm.tv. GMTV believed that to suggest the “thrust” of the item was to direct viewers to gm.tv and ultimately moneysavingexpert.com was inaccurate and disingenuous. Viewers could obtain the benefits of the advice offered without visiting moneysavingexpert.com, with the reference to gm.tv being secondary to the information provided by Mr Lewis on the subject during the programme. GMTV considered that the references to its website, gm.tv, within the item were entirely justified editorially in providing GMTV’s viewers with more detail.

GMTV submitted that a reference within the programme to the programme website, which in turn referred the viewer (if they so wished) to moneysavingexpert.com was far less a call to action or commercial reference than references to a retailer as part of any consumer item broadcast by GMTV or another broadcaster. For example, during a fashion item, it is usual for gm.tv to list stockists of clothing that has been shown in the programme. Both research and information obtained from GMTV’s website confirm that viewers like the facility of obtaining such information, details of money saving deals or other information relating to items broadcast on GMTV. GMTV believed that the suggestion that references to goods or services in consumer items amount to the “promotion” of such goods and services where the reference is brief and secondary and does not contain a call to action or advertising claims appears ill-conceived. GMTV argued that, by its very nature, consumer advice will involve references to commercial goods and services. GMTV also expressed concern that, should a web reference of the sort at issue be judged to amount to a breach of the Code, this would eliminate a source of information which GMTV believes is of great value to, and greatly valued by, its viewers. GMTV believed that the logical conclusion of such a finding of a breach of Rule 10.3 in this case would appear to prevent GMTV listing stockists or providers of goods or services online.

GMTV commented that the objection in this case appeared to be that the ultimate destination (moneysavingexpert.com) is owned by the contributor. GMTV disputed that moneysavingexpert.com is a sales business in any greater sense that the website of any broadcaster, all of which contain banner advertising and pre-roll advertisements and many of which contain information referred to briefly in programming. GMTV stated that moneysavingexpert.com provides information without the necessity to purchase any good or service or to subscribe to receive information. GMTV submitted that if it was the case that this website required a subscription, there would be no link or reference to it on gm.tv.

Finally, GMTV stated that, although it was firmly of the view that there was no breach of Rule 10.3 in this case, as a responsible broadcaster, it had taken steps to remove those references pending the outcome of Ofcom’s investigation. However, it stressed that this action in no way implied that GMTV considered the practice to have been dubious or that it amounted to anything other than the provision of information that was both useful to and very popular with its viewers.

Decision

Section Ten of the Code contains rules that apply to commercial references within programmes. The rules are based on principles that seek to ensure that:

• the independence of editorial control over programme content is maintained;
• programmes are not distorted for commercial purposes; and
• advertising and editorial are kept separate.

Rule 10.3 of the Code prohibits the promotion of products and services, unless they meet the Code’s definition of programme-related material ^(-1-).

In the context of a consumer affairs programme, there is clear editorial justification for broadcasters to include details about reviewed items, such as availability and cost: this information is provided in the interest of the viewer. Ofcom would not generally consider such information to be promotional in this editorial context. However, such references should avoid giving undue prominence to any one particular product, manufacturer or supplier and reviews should not be subject to any commercial agreement with a manufacturer/supplier.

It is also acceptable for broadcasters to provide this kind of information as part of programme-related material, for instance on a programme-related website.

In this case, the programme promoted the availability of discount vouchers and directed viewers to GMTV’s programme-related website to obtain them, for example when Martin Lewis stated: “…Now these are some of those that are available with vouchers you can print off the internet now. Guess what, all on GM.TV”.
 
However, Ofcom noted that the GMTV website did not provide viewers with direct access to the vouchers. Instead viewers who accessed the programme website to obtain the vouchers in fact had to follow a further weblink to a third party website - the guest’s own business, moneysavingexpert.com - to find the necessary links to access the vouchers.

As to whether moneysavingexpert.com was a sales business, Ofcom noted that while the website does not operate on a subscription basis, the following information about how the website generates income is stated on the site:

“MoneySavingExpert.com is free to use and free of advertising - you can’t pay to have content put on the site. Articles are written based on specialised editorial research of the best ways to save money.

The income comes from links that generate revenue when clicked. Once articles are finished, where possible 'affiliated links' to the top products are used and have a * by them. Yet if no affiliate link is available a non-paying link is used; i.e. if the top pick doesn't pay, it remains the top pick regardless”

Irrespective of whether or not the site generated revenue as a result of the deals promoted within the programme, Ofcom considers that this third party website is nevertheless a commercial business.

By inviting viewers to obtain further information and vouchers on the GMTV website, and then re-directing them to Martin Lewis’ commercial website to obtain that information, the programme was effectively promoting his business. As a result of this promotion, the programme was in breach of Rule 10.3 of the Code.

Breach of Rule 10.3

In Breach

Footnotes:

  1.- Programme-related material is defined in the Code as “..products or services that are both directly derived from a specific programme and intended to allow listeners or viewers to benefit fully from, or interact with, that programme”.

Notice of Direction

Vicky Gill
Radio XL 1296 AM (West Midlands), 19 December 2009, 18:00

Navrang
Radio XL 1296 AM (West Midlands), 4 January 2010, 13:00

Introduction

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

Vicky Gill

Vicky Gill’s show broadcast on 19 December 2009, included an hour-long segment discussing family law during which listeners were able to call the studio to put questions to a lawyer from a company called Charles & Co. Solicitors. At the end of the programme, the presenter told listeners to “get a pen and paper”. The presenter then went on to say:

“…But eventually from all sides, if one has to divorce, then it is better one consults a proper person and Charles & Co. are in Birmingham. First, write down their address: Charles & Co. Solicitors. 16-17 Caroline Street, Birmingham. Caroline Street is a very famous street, it is located in the jewellery quarter – 16-17 Caroline Street, Birmingham. And write down Gurjeet Chahal’s phone number: [phone number provided] . Please who want to write this in Hindi and Urdu, I will say it in these languages very slowly [number repeated in Urdu] … ”

The presenter also added:

“Next week, same time, same day, once again Gurjeet Chahal will attend this programme to meet you.”

A listener complained to Ofcom that the comments promoted the lawyer.

We sought Radio XL’s comments with regard to the following Code Rules:

• Rule 10.3 – “Products and services must not be promoted in programmes. This rule does not apply to programme-related material.”
• Rule 10.4 – “No undue prominence may be given in any programme to a product or service.”

Navrang

On 4 January 2010, just before 14:30, the presenter asked listeners to have a pen and paper ready because she was going to broadcast a special message from S&S Bargains after playing some music. After two songs the presenter said:

“Now let us go towards this message – and this message we are delivering to you is on behalf of S&S Bargains. S&S Bargains is in Sparkhill and their grand opening has taken place on Saturday 2nd January and they have a special offers for new year, for example: a large bag of chapatti flour is only £6.99; Daz powder, 90 wash, is only £11.99 any loaf of bread – 2 loaves for a pound; milk, 2 litre bottle – 2 bottles for a pound. So hurry up and go and take advantage of their special offers. I will tell their address again: S&S Bargain Centre, whose opening has taken place on 2nd January, S&S Bargain Centre, Unit B, 181 Percy Road, Sparkhill, B11 3JS. Telephone: [phone number provided] . that is [phone number repeated] . We have given you the telephone number of S&S Bargain Centre and their address also. They are S&S Bargain Centre based in Sparkhill. Their grand opening has already taken place on 2nd January. They have special offers for the new year – the products which we have already told you. If you need these products – why should you not require these products?! – every individual needs these products – go and take advantage of their sale. OK – now we go towards our next song…”

A listener complained that an advertisement was not separated from editorial content and sounded more like an endorsement by the presenter.

Radio XL confirmed that the promotional material in question was a presenter-read paid-for advertisement.

We therefore sought the broadcaster’s comments with regards to Rule 10.2 of the Code, which states:

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

Response

Vicky Gill

Radio XL considered that it had ensured that independence of editorial control had been maintained and that the programme has not been distorted for commercial purposes.

With regards to Rules 10.3 and Rule 10.4, Radio XL stated the programme was “used to provide information to [its] listeners regarding family law and not a programme designed to promote the guest” and therefore it was “editorially justified in mentioning the guest’s details at the end of the programme”. The broadcaster continued that “as an example, in answering questions [the guest] encouraged one listener to contact any family law specialist and any immigration specialist and not her own practice.” Radio XL also stated that the guest’s legal practice was referred to for just a few minutes at the end of the hour-long programme.

Radio XL continued that the “practitioner [could not] answer everybody’s question over the phone; there may be listeners who need[ed] to provide a more detailed history. For their benefit [the lawyer]…mentioned her phone number at the end of the programme”, which Radio XL believed was editorially justified and not unduly prominent.

Navrang

Radio XL said that it was made aware of the complaint in relation to this programme while Ofcom’s investigation into a similar complaint was ongoing ^(-1-). The broadcaster explained that it began to amend its procedures to avoid further breaches of the Code.

However, Radio XL also said that in this case “the presenter did make a separation between the programming and live read by saying, ‘Now let us go towards this message – and this message we are delivering to you is on behalf of S&S Bargains…’”

Decision

Vicky Gill

The Code prohibits broadcasters promoting, or giving undue prominence to, products and services in programmes. This is to ensure there is clear separation between programmes and advertising and to prevent programmes from being distorted for commercial purposes.

In this case, Ofcom recognises that the lawyer from Charles & Co. Solicitors was providing general advice as part of the phone-in programme covering family law. Ofcom also noted Radio XL’s explanation that during the majority of the programme Charles & Co. Solicitors was not referred to, and that the guest lawyer had encouraged one listener to contact family law and immigration specialists generally, rather than one specifically working for Charles & Co. Solicitors.

While it may be acceptable for the presenter or the guest to refer to the guest’s credentials and the company name, for example to introduce the guest to the audience and explain the guest’s speciality or area of experience, such references must not be promotional or unduly prominent. The duration of the references to the guest’s company in relation to the duration of the entire programme is only one factor which Ofcom takes into account when judging whether or not a programme has complied with Rules 10.3 and 10.4 of the Code. For instance, we would also consider whether there was editorial justification for referring to the company’s contact details, and the manner in which those details were given on air.

In this case, irrespective of the relatively small amount of the programme used to refer to the guest’s legal practice, Ofcom considered the references to be problematic under the Code. We judged that telling listeners to “get a pen and paper” before proceeding to describe the solicitor’s specialism, (i.e. “if one has to divorce, then it is better one consults a proper person and Charles & Co. are in Birmingham”), and then providing the name, address and telephone number of the solicitors firm, contained the type of information likely to be included in an advertisement. The content was therefore promotional and provided undue prominence for the company without sufficient editorial justification. Ofcom therefore found the programme in breach of Rules 10.3 and 10.4 of the Code.

Navrang

Broadcast output is defined either as editorial (programming) or advertising. One of the two principles upon which Section Ten of the Code is based is to ensure that the advertising and programme elements of a service are clearly separated. To reflect this principle and to ensure transparency in programming, Rule 10.2 of the Code requires that:

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

Radio 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 Broadcast Bulletin 149, published on 11 January 2010 ^(-2-), Ofcom recorded a breach of Rule 10.2 of the Code in relation to an insufficiently separated presenter-read advertisement broadcast on Radio XL. Ofcom noted that this new content, regarding a presenter-read live advertisement for S&S Bargain Centre, had been broadcast on Radio XL before its decision on the previous case had been published. However, given that Radio XL’s response to Ofcom’s investigation of the current case was submitted after the publication of Ofcom’s previous decision, Ofcom was concerned that Radio XL still considered that “the presenter did make a separation between the programming and the [presenter-read live advertisement for S&S Bargain Centre]”.

Ofcom considered that the 40 second presenter-read paid-for advertisement promoting the S&S Bargain Centre directly followed the broadcast of two songs and was presented seamlessly as programming. Ofcom judged that the words “Now let us go towards this message – and this message we are delivering to you is on behalf of S&S Bargains…” was insufficient to separate the advertisement from programming. As the presenter-read advertisement was not separated from programming, the broadcast was in breach of Rule 10.2 of the Code.

Vicky Gill: Breach of Rules 10.3 and 10.4
Navrang: Breach of Rule 10.2

Footnotes:

  1.- Following the previous investigation, Ofcom recorded a breach of Rule 10.2 of the Code in relation to similar promotional content broadcast on Radio XL. See Broadcast Bulletin 149, published on 11 January 2010 (http://www.ofcom.org.uk/tv/obb/prog_cb/obb149/Issue149.pdf).

  2.- See http://www.ofcom.org.uk/tv/obb/prog_cb/obb149/Issue149.pdf

In Breach

Hot Country
Rural TV, 28 December 2009, 22:00

Introduction

Rural TV is a channel which focuses on outdoor and countryside interest programming, and country and western music.

Ofcom received a complaint that the sponsor credit for a country and western music programme, Hot Country, contained information which could be deemed to be calls to action. The complainant was also of the view that advertising had appeared within the programme itself.

On reviewing the material, we noted the sponsor credit, which was a single title card, included the caption: “For more information call…” ,before giving the sponsor’s telephone number. We also observed that the same title card was used during a paid-for advertisement for the company which appeared in an advertising break during the same programme.

Ofcom asked the broadcaster for its comments on Rule 9.13 of the Code which requires that sponsorship is clearly separated from advertising, and that sponsor credits must not contain advertising messages or calls to action.

In addition, within the programme itself, a singer talked about a country music weekend holiday and gave details of its location, the services offered and booking information. This appeared to Ofcom to be advertising.

Ofcom sought the broadcaster’s comments on this aspect of the material under Rule 10.2, which requires that advertising and programme elements are kept separate.

Response

Rural TV accepted the sponsor credit included a call to action and the advertising for the company placed in the advertising break was the same as the sponsor credit. It also said the country music weekend segment should have been placed in an advert break. The breaches were, it said, due to insufficient compliance checking on its part. The broadcaster apologised for all of the lapses.

The broadcaster said Hot Country was produced by a production company which was not entirely familiar with the Code, although Rural TV said it had endeavoured to ensure the company was familiar with Ofcom’s requirements.

Rural TV said the programme was supplied very close to the broadcast deadline and, unusually, also included advertising. The broadcaster acknowledged that although it had checked the programme for technical and regulatory compliance, this check had not been sufficient.

Since this incident occurred, the broadcaster said it has ensured the production company fully understands the requirements of the Code. All relevant staff have been reminded that the late receipt of a programme is not an excuse for inadequate compliance checks.

Decision

European legislation, the Audiovisual Media Services (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.

As made clear in previous Broadcast Bulletins (see Bulletins 130 and 146), Ofcom’s guidance ^(-1-) on the rules relating to sponsorship states that the purpose of a sponsor credit is to inform viewers about the sponsorship arrangement between the sponsor and the programme. Credits should not be used as a vehicle to promote the sponsor’s products or services, nor should they directly invite the audience to contact the sponsor.

Under Rule 9.13, sponsor credits should not contain calls to action. While basic contact details can be given in credits (such as a website address or a telephone number), this should not be accompanied by language which could be seen as inviting the audience to contact the sponsor. In this case Ofcom found that the use of the phrase, “For more information call...” invited viewers to contact the sponsor and was therefore a call to action, in breach of Rule 9.13.

Additionally, Ofcom noted the same title card that was used in this sponsor credit was also used within a paid-for advertisement for the company that appeared in an advertising break during the same programme. This did not amount to a clear separation of sponsorship from advertising, and for this reason a further breach of Rule 9.13 has been recorded.

Broadcasters are required to keep advertising and programme elements separate to ensure programmes are not distorted for commercial purposes. Rural TV admitted the segment where a country music holiday was promoted was an advert incorrectly placed within programme time. Therefore the programme was also in breach of Rule 10.2.

Ofcom welcomes the tighter compliance measures introduced by Rural TV to ensure its output remains compliant with the Code.

Breaches of Rules 9.13 and 10.2

Resolved

Footnotes:

  1.-See www.ofcom.org.uk/tv/ifi/guidance/bguidance/section9_2009.pdf

Resolved

Dickinsons Real Deal
ITV1, 19 January 2010, 14:00

Introduction

Dickinson’s Real Deal is a daytime entertainment programme based on the valuation of antiques. Each edition features a viewer competition that requires participants to answer a multiple choice question correctly to enter a prize draw. Viewers can enter via a premium rate telephone number (costing £1 from a BT line) or text message (costing £1 each plus the user’s standard network rate), or for free via ITV’s website. The competition is promoted four times at regular intervals during the programme.

Ofcom received one complaint from a viewer who noted that the question posed by the voiceover did not correspond to the question on-screen. The complainant said that this would have affected the fairness of the competition as it was unclear which question viewers were supposed to answer.

Ofcom asked ITV Broadcasting Limited (“ITV”), who complied the programme on behalf of the ITV Network, for its comments under Rules 2.13 (competitions must be conducted fairly) and 2.14 (broadcasters must ensure that viewers are not materially misled about any competition) of the Code.

Response

ITV explained that because this was a repeat of a previously broadcast series, each episode was re-edited by the production company, RDF Television, to include new competition questions. The programme in question contained three correct promotions of the competition. However, the final promotion featured the correct graphic but the voiceover related to a previous competition. This was identified by the production team but owing to an error in the dubbing process, it was not corrected. Further, the ITV Compliance adviser responsible for Dickinson’s Real Deal did not detect the discrepancy when clearing the programme for transmission.

The broadcaster said it was alerted to the matter by a small number of complaints that it had received. It concluded that there was a clear possibility of viewer confusion caused by the error and so cancelled the competition for that day and implemented a refund procedure. It broadcast an on air announcement about the cancellation during the end credits of the following day’s edition, referring viewers to its website for details of how to obtain a refund. It added that it was able to automatically reimburse entrants who called from a BT account and that it had established a call centre to contact other telephone entrants to arrange repayment. Further, ITV said that it had sent text message entrants instructions on how to obtain a refund. At the time of its response, ITV said it had already refunded 5,026 of the 15,984 entrants eligible and that any monies not claimed within three months would be donated to charity.

ITV apologised for any confusion to viewers caused by this oversight and has since introduced an additional check made by the Series Editor if any changes have been made to the original programme. It also pledged to be extra-vigilant when checking this particular element of the show to prevent a repeat incident.

Decision

Rule 2.13 of the Code requires broadcasters to conduct competitions fairly. Rule 2.14 states that viewers should not be materially misled by competitions.

Ofcom was concerned that the discrepancy between the competition question broadcast in vision and in audio had been identified, but was then not corrected during post-production. Further, the error also went undetected by ITV’s compliance adviser. This led to the broadcast of materially misleading information which could have impacted the fairness of the competition, and had the potential to cause viewers financial loss.

However, Ofcom accepted that this was an isolated incident arising from an unusual sequence of human errors. Further, we noted the prompt refund procedures put in place to compensate entrants, and that the broadcaster had improved its processes to prevent a recurrence. We therefore considered the matter resolved.

Resolved

Not In Breach

Dispatches: Inside Britains Israel Lobby
Channel 4, 16 November 2009, 20:00

Introduction

This edition of Dispatches waspresented by journalist Peter Oborne. It sought to establish the extent of the alleged influence of the pro Israel lobby on British politicians and asked what effect this influence had on the Middle East policies of the Conservative and Labour parties in particular. The presenter began the programme with the following:

“Dispatches reveals the activities of the most effective lobby working inside British political parties….we investigate the Israel lobby’s bankrolling of British politicians.”

He then said:

“I resolved to ask questions. How does the pro-Israel lobby in Britain work? Who runs it? And how does it get results?”

The programme was an investigation into several individual organisations, and the people who ran them. The programme said that these groups formed part of the pro-Israeli lobby in Britain and sought to demonstrate how they “bankrolled” some British politicians. The programme also questioned the attitude of some lobby groups to elements of the British press, describing what it said were aggressive methods of complaint to the Press Complaints Commission against “anti-Israeli reporting”.

Ofcom received 50 complaints about certain aspects of the programme. These complaints fell into four groups:

a) the programme was biased against Israel and/or the Israeli government;

b) it did not adequately explain fully the background to the current situation in the Middle East;

c) it was anti-Semitic; and

d) it was overly critical of certain lobby groups.

Ofcom viewed the programme in light of these complaints. We examined the material under the due impartiality rules in Section Five of the Code; and the rules on offensive material in Section Two.

Decision

a) Due Impartiality

Complainants believed that the programme lacked balance and was one sided.

In exercising its functions Ofcom must take account of the right to freedom of expression. This encompasses the broadcasters’ right to transmit and the audience’s right to receive creative material, information and ideas without interference but subject to restrictions prescribed by law and necessary in a democratic society. This right is enshrined in the European Convention on Human Rights. The rules in the Code seek to balance this right to freedom of expression against the need to apply restrictions. These restrictions include such statutory duties as the requirement for broadcasters to preserve “due impartiality” on certain matters. Ofcom recognises that Section Five of the Code, which sets out how due impartiality must be preserved, acts to limit, to some extent, freedom of expression. This is because its application necessarily requires broadcasters to ensure that neither side of a debate relating to matters of political or industrial controversy and matters relating to current public policy is unduly favoured.

Ofcom also acknowledges that Channel 4’s statutory remit requires it to provide “…a broad range of high quality and diverse programming which, in particular ….exhibits a distinctive character.”

Ofcom considers it of paramount importance that broadcasters, such as Channel 4, continue to explore controversial subject matter. While such programmes can polarise opinion, they are essential to our understanding of the world around us.

Section Five states that due impartiality must be preserved by the broadcaster on “matters of political or industrial controversy and matters relating to current public policy.” The Code explains in summary that these are “political or industrial issues on which politicians, industry and/or the media are in debate…”

Ofcom had first to establish whether Dispatches, Inside Britain’s Israel Lobby contained subject matter requiring the application of the due impartiality rules. We noted that several complainants considered this programme was biased against the Israeli State and its policies. However, we considered that the programme was not a discussion about arguments for and against Israeli policy. Rather, it was clearly an ‘investigation’ into the activities of organisations and individuals who allegedly lobby UK political parties from a pro-Israeli perspective to influence political debate and public policy.

In this case, taking into account all the circumstances, and bearing in mind the context of the programme described in the Introduction above, Ofcom concluded that on balance the programme was subject to the due impartiality rules. This is because an issue of political controversy was being discussed. This was not the politically controversial debate surrounding the policies and actions of the Israeli State in the Middle East and beyond. Rather the issue of political controversy was: the alleged effect of political lobby groups, supportive of the state of Israel, and its policies; and the methods of those lobby groups, and their attempts to influence political debate and public policy in this country.

Given that the programme’s investigative format, looking into activities of certain individuals and organisations, the editorial narrative of the programme reflected what the reporter had discovered. It focussed on the methods of these lobby groups and the effect these organisations had on the policies of particular political parties. Such investigative programmes will always take on a certain editorial approach to the subject matter, but nevertheless, such programming must always ensure that due impartiality is maintained.

For example footage was shown of the Conservative Shadow Foreign Secretary, William Hague, describing the Israeli response to attacks from Hezbollah as “ disproportionate”. The programme then sought to demonstrate what it saw as pro-Israel lobby groups’ over reaction to Hague’s criticism. It described how Mr Hague’s “ moderate” comment met strong reaction from the Conservative Friends of Israel (“CFI”): a letter was published in The Spectator magazine strongly criticising his remark; there was a cessation of donations to Mr Hague by the CFI; and the director of the CFI (according to the programme):

 “…had a meeting with David Cameron at which it was understood that terms such as ‘disproportionate’ are not the sort that Conservatives should use to describe Israeli military action.”

Another example of this approach by the programme occurred when the presenter, seen at the Conservative party Conference, said:

“the longer I’m here, the more I’m beginning to feel that the CFI’s purpose is to make sure David Cameron’s Middle East policy is in step with the political agenda of the current Israeli government.”

In this , the programme, although not offering a view on Conservative policy on the Middle East, expressed a view on what certain lobby groups would like that policy to be. In demonstrating, in its view, the lobby groups’ attempts to influence political process and public policy, we considered that it was incumbent on the broadcaster to maintain due impartiality in this case.

Given the above, Ofcom considered whether the programme complied with Rule 5.5, which states that: “Due impartiality on matters of political or industrial controversy and matters relating to current public policy must be preserved on the part of any person providing a service…”.

We noted that during the programme where allegations were made against particular lobby groups or individuals, the viewpoints of those groups or individuals were included in the programme. For example, the programme included statements from: the CFI; and Poju Zabludowicz, an individual who the programme alleged was connected to an organisation called Britain’s Israel Communications and Research Centre (“BICOM”). In addition, the programme included an interview with Lorna Fitzsimons, Chief Executive of BICOM.

Overall the reporter set out a series of legitimate questions. Such as:

“How does the pro-Israel lobby work? Who runs it? And how does it get results?

The programme then aimed to answer these questions by gathering evidence. However, importantly it did so while still ensuring that opposing views were also recognised.

Given the above, we considered that the programme included views from the organisations and individuals highlighted in the programme as being active as lobbying in sympathy to the Israeli State. In Ofcom’s view this was a legitimate investigation into the activities of lobby groups, which approached the subject with “due impartiality” in accordance with Rule 5.5.

Several complainants were also concerned that groups featured in the programme – notably the CFI, Labour Friends of Israel and BICOM – were treated unfairly. Others objected to the broadcast of footage of the residences of individuals connected to these organisations. In Ofcom’s view these complaints were related to fairness and privacy. Ofcom will normally only consider such complaints when they are made by a “person affected” by a programme, for example a member of one of the organisations concerned or someone authorised by them. We have not received any such complaint and so did not to investigate these concerns further.

b) The Middle East

Some viewers complained that the programme did not fully explain the background to the Middle East situation. However, what areas a programme does and does not cover is purely an editorial decision for the broadcaster and not a matter for Ofcom (so long as the programme complies with the requirements of the Code).  In any event, it should be noted that this programme was an investigation into the alleged influence of the Israeli lobby on British politics and did not seek to examine the Middle East issue.

c) and d) Offence

Some complainants were offended by the programme because they believed it was anti-Semitic. Ofcom considered these complaints under Rule 2.3 of the Code which requires that material which may cause offence is justified by the context. Under “meaning of context” the Code lists a number of factors. These include the editorial content of the programme and the service on which it is broadcast.

It is inevitable that a programme of this nature will include frequent references to Israel and Judaism. It can also be expected to refer to prominent figures in the Jewish community and portray groups that are pro-Israel. Given the editorial content of this programme described above, and the way the programme sought to expose what it said was the way pro-Israel lobbyists use financial means to gain political influence, it is almost inevitable that many of the references to prominent figures and groups would be critical. However, such a critical analysis does not, in Ofcom’s view, constitute anti-Semitism. Importantly, Ofcom found that these references, and the programme overall were directed towards individuals or organisations because of their alleged actions and activities and not because of their religion. In this case generally accepted standards were applied by the broadcaster and there was no breach of Rule 2.3.

Not in Breach of Rule 5.5 and Rule 2.3

Advertising Scheduling cases

In Breach

Advertising scheduling
Sci-Fi Channel, 20 December 2009, 12:00

Introduction

Rule 4 of the Code on the Scheduling of Television Advertising (“COSTA”), states: “time devoted to television advertising and teleshopping spots on any channel in any one hour must not exceed 12 minutes”.
 
This rule implements the requirements of European legislation, the Audiovisual Media Services (AVMS) Directive.

As part of Ofcom’s routine monitoring of broadcasters’ compliance with COSTA, Ofcom noticed that a total of 16 minutes of advertising was transmitted on the Sci-Fi Channel during one clock hour. This is 4 minutes more than is permitted. Ofcom wrote to NBC Global Universal Networks (“NBC Universal”), the licence holder for the Sci-Fi Channel, for its comments under Rule 4 of COSTA.

Response

NBC Universal, having investigated the incident further, acknowledged that in this instance, the Sci-Fi Channel had not complied with Rule 4 of the Code. The broadcaster explained that due to human error the length of programme broadcast between 11.00 hours and 13.00 hours had not been properly checked and as a result a five minute commercial break was broadcast during the incorrect hour period. This created a 4 minute overrun of advertising in the 12.00 hour (and left the 11.00 hour 5 minutes short of advertising).

Whilst normally, such an anomaly would be identified through the daily minutage report, the broadcaster explained that in this instance the anomaly was not noticed. The broadcaster said it would ensure further training is delivered and will stress the need for greater diligence amongst employees in order to minimise the risk of a recurrence.

Decision

Ofcom notes that NBC Universal has taken further steps to ensure compliance with COSTA. However, this failure followed an earlier minutage overrun on the Sci-Fi Channel, on 22 November 2009. In that case, NBC Universal had informed Ofcom that sufficient procedures had been implemented to minimise the risk of a recurrence.

Ofcom is concerned that NBC Universal’s procedures were not robust enough to prevent this second overrun (in one month) from occurring, and in the circumstances has found the channel in breach of Rule 4 of COSTA.

Ofcom may consider further regulatory action if this problem recurs. This breach will be held on record.

Breach of Rule 4 of COSTA

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