Broadcast Bulletin Issue number 158 24/05/10

Bang Babes, Tease Me: Earlybird, Special Message, CNN YouTube Debate on Climate Change, Wedi 7, Asiana Bridal Show 2010, (Celebrity) Big Brother’s Big Mouth, Advertising minutage, 209radio, community radio service for Cambridge, Complaints by Islam Channel, Mr Keith Harding, Mr David Ham on his own behalf and on behalf of Mrs Lorraine Ham (his wife), Miss Rubi Ham and Miss Chelsie Ham (his daughters), Steeles Law Solicitors made on behalf of Mr Keenam Bradshaw-Davis & Complaint by Ms Nassila Zelleg.

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 Bulletin may therefore cause offence.

Standards cases

In Breach

Bang Babes
Tease Me, 25 January 2010, 21:00, and 27 January 2010, 21:30
Tease Me 2, 10 February 2010, 21:00

Introduction

Bang Babes is an adult sex chat television service, owned and operated by Bang Channels Limited (Bang Channels or the Licensee) and available freely without mandatory restricted access on the channels Tease Me and Tease Me 2 (Sky channel numbers 912 and 948). 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.

Ofcom received complaints about the following broadcasts. The complainants said that the content transmitted was too sexually explicit to be broadcast at the time it was broadcast.

Bang Babes , Tease Me, 25 January 2010, 21:00 to 22:00
This broadcast featured a presenter wearing fishnet tights and a skimpy all in one body with a g-string back. Her breasts were exposed but with black plasters over her nipples. At various times during the broadcast the presenter adopted sexual positions, including lying on her back with her legs wide open to camera and kneeling on all fours bending over with her buttocks close to camera. While in these positions the presenter repeatedly carried out a number of sexually provocative actions. These included stroking and jiggling her buttocks and breasts close to camera and pulling her buttocks apart to reveal outer labial detail.

Bang Babes , Tease Me, 27 January 2010, 21:30 to 22:15
This broadcast featured two presenters wearing PVC and/or rubber type all in one bodices/corsets. They used various sexual toys in a playful but provocative way as props in their performance (including a rubber strap-on dildo, a rubber dildo holder, a ruler and a whip). During the broadcast they adopted various sexual positions, including bending over to camera and opening their legs to camera while both standing and seated. While in these positions, at various times during the broadcast, the presenters outer labial areas were revealed due to their skimpy underwear. The presenters stroked their breasts and buttocks, and played with the props suggestively, licking them or using them to hit themselves gently. The two presenters ran their hands and fingers over their g-strings touching their genital areas and just after 22:00 one rubbed her genitalia, simulating masturbation.

Bang Babes , Tease Me 2, 10 February 2010, 21:00 to 21:30
This broadcast featured a presenter with a purple/black bra top and thin g-string with a lace mini skirt over this. Her body and breasts were oiled. The presenter adopted various sexual positions including: bending over while on all fours thrusting her buttocks direct to camera, leaning back with her legs open and moving her body up and down while squatting. While in these positions the presenter tugged at her g-string to reveal some labial detail and pulled at her buttocks to reveal anal detail. During the broadcast the presenter also simulated insertion of a finger into her vagina, touched her thong around her genital area and licked her fingers suggestively.

Ofcom requested comments from Bang Channels in relation to the following Code Rules:

Rule 2.1 - the broadcaster must apply generally accepted standards; and
Rule 2.3 - offensive material must be justified by context.

Response

In relation to each broadcast the Licensee stated the following.

Bang Babes , Tease Me, 25 January 2010, 21:00 to 22:00
The broadcaster said that the broadcast was post watershed and that it was not sufficiently strong enough to cause any problems to viewers, even given its close proximity to the watershed. This broadcast was on a channel in the adult section of the EPG and was entirely consistent with viewer expectation for a channel of this kind. It said that the material as broadcast was no different to that broadcast on any other channel in the adult section of the EPG on the night in question. The broadcaster commented that its right as a broadcaster to freedom of expression under Article 10 of the European Convention on Human Rights should be protected. It said that when balanced with the need to protect viewers from harm and offence in a multi-channel environment, the viewer could exercise his choice simply not to view material which was not to his taste. It said that Sky viewers, for example, could block all adult content should they choose. The broadcaster considered that if it was to be found in breach of the Code in this case, Ofcom would find it difficult to justify its position in light of the broadcasters rights under Article 10 of the Human Rights Act.

Bang Babes , Tease Me, 27 January 2010, 21:30 to 22:15
Bang Channels stated that this material was in line with audience expectation for a channel of this nature at this time of night. It said it was satisfied that the nature of the broadcast provided sufficient context for the type of material shown. Adequate controls were in place to protect the public in the form of warnings as to the nature of the content, the channel type and position, and the ability of all set top boxes on sale in the UK to restrict access to any channel. It asserted its right that freedom of expression outweighed the potential for offence as individuals could exercise their right to simply not view the material in the first place.

Bang Babes , Tease Me 2, 10 February 2010, 21:00 to 21:30
The Licensee did not believe the footage presented any issues under the Code and that it was broadly consistent with past guidance from Ofcom and no different to anything else transmitted by other broadcasters operating within the same sector. It said there was no case to answer under the Code in this case.

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.

When setting and applying standards in its Code to provide adequate protection to members of the public from harm and offence, Ofcom must have regard to the need for standards to be applied in a manner that best guarantees an appropriate level of freedom of expression in accordance with Article 10 of the European Convention of Human Rights, as incorporated in the Human Rights Act 1998. This is the right of a broadcaster to impart information and ideas and the right of the audience to receive them. Accordingly, Ofcom must exercise its duties in light of these rights and not interfere with the exercise of these rights in broadcast services unless it is satisfied that the restrictions it seeks to apply are required by law and are necessary to achieve a legitimate aim. Ofcom notes however that a broadcasters right to freedom of expression, although applicable to sexual content and pornography, is more restricted in this context compared to, for example, political speech, and this right can be legitimately restricted if it is for the protection of the public, including the protection of those under 18.

In considering the contents of each of these programmes Ofcom assessed the strength of the content and then asked itself whether the broadcaster ensured that the content was provided with sufficient contextual justification so as to ensure that it fell within generally accepted standards.

Bang Babes, Tease Me, 25 January 2010, 21:00 to 22:00
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 adopted various sexual positions that, on occasions, due to the proximity of the camera and her skimpy underwear, revealed some outer labial detail. She also jiggled her buttocks and breasts to camera in a sexually provocative way.

Ofcom examined the extent to which there were any particular editorial or contextual factors that might have limited the potential for offence. Ofcom noted that this programme was broadcast in the first hour after the watershed and that viewers generally expect on all channels that stronger material will be shown after 21:00, within context. Ofcom took account of the fact that the Tease Me 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 in other sections. Further, we noted that if viewers choose, they can block certain channels from the EPG.

Ofcom however noted that content broadcast on this channel changes at 21;00 from daytime chat (whose content must be appropriately limited) to an adult sex chat service, and on this channel - as with all channels broadcasting without mandatory restricted access - the transition to stronger material must not be unduly sudden. However, in this case, given the content was broadcast so soon after the watershed, and that it included images whose strength exceeded this necessary, gradual move to more graphic material, the location of the channel in the adult section of the EPG and the existence of voluntary PIN controls were not sufficient to justify the broadcast of the material at this time. The content shown at this time would have exceeded the likely expectation of the vast majority of the audience for a channel of this nature and location.

Ofcom does not dispute Bang Channels right to freedom of expression. However, any content broadcast by an Ofcom licensee must comply with the provisions of the Code. In this case, material was shown soon after the 21:00 watershed which was clearly capable of causing offence and which had limited editorial justification: its aim was to persuade viewers to contact the presenters via PRS. In any event, as already pointed out, the weight attached to freedom of expression is less when it concerns sexual imagery broadcast to promote a product or service or pornography or in terms of protecting the health or morals of those under eighteen.

For these reasons, Ofcom considers that the material breached generally accepted standards at this time of night. Viewers may choose not to watch the channel, as suggested by the broadcaster, but there is the potential for viewers to be offended should they come across the material unawares.

This broadcast therefore breached Rules 2.1 and 2.3 of the Code.

Bang Babes , Tease Me, 27 January 2010, 21:30
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 presenters positioned themselves in front of the camera with legs wide apart or bent over in front of the camera in an intrusive way for prolonged periods of time. One presenter also appeared to simulate masturbation at one point in the broadcast, as she was seen rubbing her genitalia in a vigorous way through her underwear. As above, transition to stronger material at the watershed should be gradual and any material broadcast should be justified by context.

Ofcom then 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 just after the watershed and for the reasons stated above viewers expect a gradual move towards stronger material at this time. Again, 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. And, in addition, if viewers choose, they can block certain channels from the EPG.

However, in this case, given the overall content of the broadcast, the intrusive and sometimes prolonged and frequent scenes of a sexual nature and the inclusion of images of the presenters outer labial area (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 strongly sexual and 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 at the degree of offence likely to be caused to viewers who might come across this material unawares. Ofcom concluded that this content was clearly not justified by the context and was in breach of generally accepted standards. The broadcasters claims to freedom of expression in Ofcoms view did not outweigh the potential for offence to be caused by the failure to observe generally accepted standards.

This broadcast was therefore in breach of Rules 2.1 and 2.3 of the Code.

Bang Babes , Tease Me 2, 10 February 2010, 21:00 to 21:30

In terms of the content of this broadcast, Ofcom considered these sexual images also to be strong and capable of causing offence. On a number of occasions, for example, at the start of the broadcast, the presenter adopted sexual positions that, due to her skimpy underwear, revealed some outer labial and anal detail. The presenter also massaged her oiled breasts very close to camera; spanked herself and pulled at her buttocks to reveal outer anal detail; licked her fingers in a provocative way and mimed insertion of a finger into her vagina; and, in general, she was rubbing and touching herself in a sexually provocative way.

Ofcom then 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 immediately after the 21:00 watershed and that viewers tend to expect on all channels material of increasing strength to be shown after 21:00, within context. Ofcom took account of the fact that the Tease Me 2 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, and that access controls were available.

However, in this case, given the content was so immediately sexual and broadcast so soon after the watershed, and that it included material whose strength exceeded the necessary gradual move to more graphic material, the location of the channel was not sufficient to justify the broadcast of the material and would have exceeded the likely expectation of the vast majority of the audience, despite this being broadcast in the adult section of the EPG. Again, Ofcom was concerned by the degree of offence likely to be caused to viewers who might come across the material unawares. The material had the potential to cause offence and in this regard Ofcom concluded that it exceeded generally accepted standards.

This broadcast therefore breached Rules 2.1 and 2.3 of the Code.

Ofcom is presently considering the imposition of a statutory sanction against Bang Media (London) Limited and Bang Channels Limited for material transmitted between 20 June and 25 November 2009. In light of Bang Media and Bang Channels Limiteds serious and/or repeated breaches of the Code and Condition 11 of their licences, and their continued transmission after 25 November 2009 of content which appears similar in nature to that which had already been found in breach of the Code, Ofcom issued them with a Direction on 12 March 2010.

As a result of the serious and repeated nature of the breaches recorded in these current findings, and those recorded against Bang Media (London) Limited elsewhere in this Bulletin and in Bulletin 157, the Licensee is put on notice that these present contraventions of the Code are being considered for statutory sanction.

Breaches of Rules 2.1 and 2.3

In Breach

Tease Me: Earlybird
Tease Me TV (Freeview), 25 January 2010, 07:15

Introduction

Tease Me: Earlybird is a televised daytime interactive chat programme broadcast without mandatory restricted access. 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. It is part of the service known as Tease Me TV which is broadcast between 03:00 and 09:00 and located on Freeview at channel number 98. Tease Me TV on the Freeview platform is owned and operated by Bang Media (London) Ltd (Bang Media or the Licensee). Pre-watershed, the channel broadcasts programmes based on interactive chat. Post-watershed, the licensee transmits adult sex chat services. All of this programming is available without mandatory restricted access.

Ofcom received a complaint from a mother of a young child who said her child had flicked onto this channel whilst using the remote control. She had general concerns about this material being broadcast during the day and, in this particular case, on a Saturday morning when children may be watching unsupervised. She was worried about childrens exposure to this type of material and how they could be protected.

Ofcom noted that the female presenter dressed and acted in a sexually provocative manner between 07:15 and 07:45. She wore a black one piece body cut high on the thighs with a g-string back. At one point she exposed a nipple. She jiggled her hips, licked her fingers suggestively, touched her inner thighs and inside and around the g-string exposing her labial contours. She also adopted a sexual position, pushing her legs apart (albeit away from camera), and lifting her bottom and gyrating.

Ofcom asked Bang Media for its comments on the broadcast in respect of Rule 1.3 (children must be protected by appropriate scheduling from material that is unsuitable for them) and Rule 2.3 (material which may cause offence must be justified by the context).

Response

With regard to Rule 1.3, Bang Media said that the material in question, while not aimed at children, was no different to material commonly available on music channels aimed at younger teenagers. It said that appropriate scheduling was applied in this instance. The Licensee referred to a previous case in which it alleged Ofcom had said that, because the content of this channel was adequately separated from childrens channels on the Freeview platform, there was no contravention of the Code. Therefore Bang Media said there was also no breach of Rule 1.3 in this instance.

In respect of Rule 2.3, the broadcaster had not noted any exposed nipples in the broadcast. It said that the presenters movements were not sexually provocative. Bang Media said that Ofcom had previously provided guidance in which it outlined concern with presenters opening their legs to camera. However, on this occasion the presenters legs were facing away from the camera and this therefore was consistent with the guidance given. The broadcaster concluded that in this particular case it did not consider that the complaint warranted further investigation.

Decision

Rule 1.3 makes clear that children should be protected by appropriate scheduling from material which is unsuitable for them. Appropriate scheduling is judged according to factors such as: the nature of the content; the likely number of children in the audience taking into account such factors as school time; the start and finish time of the programme; the nature of the channel; and, the likely expectations of the audience for a particular channel or station at a particular time and a particular day. It should be noted that the watershed starts at 21:00 and ends at 05:30.

Ofcom has made clear in previous published findings^(-1-) what sort of material is unsuitable to be included in daytime interactive chat programmes i.e. those shown after 05:30. Presenters of daytime chat services should not at any time appear to mimic or simulate sexual acts before the watershed or behave in a sexual manner, by for instance adopting sexual positions. These decisions were also summarised in a guidance letter sent by Ofcom to all daytime and adult sex chat broadcasters including the Licensee in August 2009.

As regards Rule 1.3, Ofcom considered the material was clearly unsuitable for broadcast at this time of day when children may be in the audience. In this case, for a period of around half an hour, the presenter mimicked or mimed sex acts, and behaved in a sexual manner. For example she adopted a sexual position by opening her legs wide (albeit away from camera), and she also exposed a nipple at one point, licked her fingers suggestively, touched herself on and around her genital area, and tugged at her thong which at times exposed the contours of her genitals. We concluded that the content had no editorial justification. Its purpose was clearly sexual stimulation with the aim of attracting PRS income and, in contrary to the broadcasters assertion, was unlike the content of a music channel video (because, for example, the shots of the presenter here were more prolonged and sexually provocative, and were not edited to music).

In light of this Ofcom went on to consider whether the material was appropriately scheduled. We considered the likely number of children in the audience and the time of the broadcast. Ofcom noted that this material was broadcast on a Saturday morning when children are particularly likely to be in the available audience, some unaccompanied by an adult. While Ofcom noted that the material was broadcast on a channel that is not located directly next to childrens channels on the Freeview platform, there was the potential for children, should they be flicking through the Freeview electronic programme guide, to come across the channel unawares. Ofcom then considered the likely expectations of the audience for programmes broadcast at this time of day on a channel without mandatory restricted access. In its opinion, viewers would not expect to come across such material on this channel or any other unencrypted channel at this time.

Taking into account the factors above, Ofcom concluded that the material was unsuitable for children and not appropriately scheduled so as to protect them from it. Therefore the content breached Rule 1.3 of the Code.

Ofcom then went on to consider the broadcast against Rule 2.3 of the Code and whether the Licensee applied generally accepted standards. This Rule requires material which may cause offence to be justified by the context. Context includes factors such as: the service on which the material is broadcast and the time of broadcast; the likely expectation of the audience; the extent to which the nature of the content can be brought to the attention of the potential audience; and, the effect of the material on viewers who may come across it unawares.

Ofcom noted the broadcasters assertion that the material was suitably limited for broadcast at this time of day and that the presenters movements were not sexually provocative and that her open legs were facing away from the camera. However, as detailed earlier, the presenters outfit barely covered her genital area and her actions (for example, tugging at her g-string and fondling herself on and around her genital area, gyrating her hips, opening her legs wide, rubbing her breasts and exposing a nipple) were clearly for the purposes of sexual stimulation. In Ofcoms opinion this material was capable of causing offence. It therefore required justification by the context.

When broadcasting in the early morning around 07:15, Tease Me: Earlybird is a daytime chat service broadcast into viewers homes without mandatory access restrictions, pre-watershed and on the Freeview platform. Ofcom considered, in particular, the likely expectations of the audience and the effect of the material on viewers who may come across it unawares. In Ofcoms view, audiences at this time of day for services available without mandatory restricted access like those on Freeview would not expect to see sexual imagery of this relatively strong nature to be broadcast. The strength of this particular material went beyond the expectations of the majority of viewers of a daytime chat service.

Taking into account the factors detailed above, in Ofcoms view the material broadcast at this time on this service exceeded generally accepted standards and was in breach of Rule 2.3 of the Code.

Ofcom is presently considering the imposition of a statutory sanction against Bang Media (London) Limited and Bang Channels Limited for material transmitted between 20 June and 25 November 2009. In light of Bang Media and Bang Channels Limiteds serious and/or repeated breaches of the Code and Condition 11 of their licences and their continued transmission of content which appears similar in nature to that which had been found in breach of the Code, Ofcom issued them with a Direction on 12 March 2010.

As a result of the serious and/or repeated nature of the breach recorded in this current finding, and those recorded against Bang Channels Limited and Bang Media (London) Ltd elsewhere in this Bulletin and in Bulletin 157, the Licensee is put on notice that this present contravention of the Code is also being considered for statutory sanction.

Breaches of Rules 1.3 and 2.3

These include: The Pad, Tease Me, 26 February, 11:45, The Pad, Tease Me 3, 27 February 2010, 11:45 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb157/, Tease Me: Earlybird, Tease Me TV (Freeview) 26 January 2010, 07:15 all in Bulletin 157 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb157/; The Pad Tease Me, 6 November 2009, 12:00 to 13:00 and 14:00 to 15:00 Bulletin 152 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb152/; Elite Days finding in Bulletin 151 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb151/; Top Shelf TV Finding in Bulletin 149 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb149/; and Elite Days/Elite TV Finding in Bulletin 144 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb144/.

In Breach

Tease Me: Earlybird
Tease Me TV (Freeview), 15 February 2010, 05:30

Introduction

Ofcom viewed the material broadcast between 05:30 and 09:00 and noted that the presenter was wearing a black bra and G-string, and black fishnet stockings with suspenders. Throughout the three and half hour broadcast the presenter adopted various sexual positions for prolonged periods of time, including: kneeling with her legs wide open to camera; lying on her side and back with her legs open; lying on her front with her legs open and while doing so positioning her buttocks to camera; and kneeling on all fours. While in these positions the presenter repeatedly gyrated her pelvis and buttocks as though miming sexual intercourse. The presenter also repeatedly touched and stroked her body, including her legs and buttocks.

Ofcom asked Bang Media for its comments on the broadcast in respect of Rule 1.3 (children must be protected by appropriate scheduling from material that is unsuitable for them).

Response

Bang Media said that the material was appropriately scheduled so as to provide adequate protection for children. It stated that the position of the Tease Me TV channel on the Freeview platform provides adequate separation from childrens channels and therefore protection for the under 15s, which amounts to appropriate scheduling. The Licensee referred to previous cases in which it alleged Ofcom had said that, because the content of this channel was adequately separated from childrens channels on the Freeview platform, there was no contravention of the Code.

Bang Media also stated that parental controls are available on Freeview set top boxes, which provide further protections. The licensee referred to recent research by the Association for Interactive Media and Entertainment (AIME), which it said suggests that 90% of Freeview set top boxes on the market come with built in parental controls.
The licensee said that in light of the above the programme did not breach Rule 1.3 of the Code.

Decision

Rule 1.3 makes clear that children should be protected by appropriate scheduling from material which is unsuitable for them. Appropriate scheduling is judged according to factors such as: the nature of the content; the likely number of children in the audience taking into account such factors as school time; the start and finish time of the programme; the nature of the channel; and, the likely expectations of the audience for a particular channel or station at a particular time and a particular day. In particular, it should be noted that the watershed starts at 21:00 and ends at 05:30.

Ofcom has made clear in previous published findings^(-1-) what sort of material is unsuitable to be included in daytime interactive chat programmes. 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. These decisions were also summarised in a guidance letter sent by Ofcom to daytime and adult sex chat broadcasters in August 2009. Some of these findings involved Bang Media.

In Ofcoms view the material, broadcast before the watershed was clearly unsuitable for children. During this broadcast the female presenter was wearing very little clothing and also adopted various sexual positions for prolonged periods of time. In particular, she was shown kneeling on all fours, and lying on her front with her legs open and buttocks positioned to camera. While in these positions she behaved in a sexual manner by repeatedly gyrating her pelvis and buttocks as though miming sexual intercourse. During this time she also repeatedly touched and stroked her body. In Ofcoms opinion the imagery shown to viewers had no editorial context other than sexual stimulation. The behaviour of the presenter and her skimpy clothing were intended to be sexually provocative in nature and were not suitable to promote daytime chat. The images were therefore not editorially justified for broadcast at this time.

Ofcom went on to review whether this unsuitable material was appropriately scheduled. Ofcom considered the likely number of children in the audience and the time of the broadcast. Ofcom noted that this material was broadcast at a time when children were likely to be getting ready for school and may have been watching television, some unaccompanied by an adult. While Ofcom noted that the material was broadcast on a channel that is not located directly next to childrens channels on the Freeview platform, there was the potential for children, should they be flicking through the Freeview electronic programme guide, to come across the channel unawares. Ofcom then considered the likely expectations of the audience for programmes broadcast at this time of day on a channel without mandatory restricted access. In its opinion, viewers would not expect to come across such material on this channel or any other unencrypted channel at this time.

Taking into account the factors above, Ofcom concluded that the material was clearly unsuitable for children and not appropriately scheduled so as to protect them from it. Therefore the content breached Rule 1.3 of the Code.

Ofcom noted the broadcasters assertion that Ofcom had said in other previous cases that this channel was adequately separated from childrens channels on the Freeview service. Ofcom accepts that there is some separation of chat channels from childrens channels on Freeview. However, Ofcom considers that this separation does not adequately protect children from material that is unsuitable for them.
.
Ofcom also noted the broadcasters comments that parental controls are available on Freeview set top boxes and its reference to recent research carried out by AIME. While Ofcom recognises that it may be the case that a majority of Freeview set top boxes do now have voluntary parental controls, Ofcom research^(-2-) shows that only "around one in three households with a multichannel television service have set these [access] controls (34%)". Ofcom therefore does not consider that the existence of parental controls on set top boxes offers enough protection to under-eighteens from viewing unsuitable material of this nature. In any event, broadcasters, under the Code, are required to observe the watershed.

Ofcom is presently considering the imposition of a statutory sanction against Bang Media (London) Limited and Bang Channels Limited for material transmitted between 20 June and 25 November 2009. In light of Bang Media and Bang Channels Limiteds serious and/or repeated breaches of the Code and Condition 11 of their licences and their continued transmission of content which appears similar in nature to that which had been found in breach of the Code, Ofcom issued them with a Direction on 12 March 2010.

As a result of the serious and/or repeated nature of the breach recorded in this current finding, and those recorded against Bang Media and Bang Channels Limited elsewhere in this Bulletin and in Bulletin 157, the Licensee is put on notice that this present contravention of the Code is also being considered for statutory sanction.

Breach of Rule 1.3

Footnotes:

1.- These include: The Pad, Tease Me, 26 February, 11:45, The Pad, Tease Me 3, 27 February 2010, 11:45 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb157/, Tease Me: Earlybird, Tease Me TV (Freeview) 26 January 2010, 07:15 all in Bulletin 157 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb157/; The Pad Tease Me, 6 November 2009, 12:00 to 13:00 and 14:00 to 15:00 Bulletin 152 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb152/; Elite Days finding in Bulletin 151 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb151/Issue151.pdf; Top Shelf TV Finding in Bulletin 149 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb149/; and Elite Days/Elite TV Finding in Bulletin 144 at http://www.ofcom.org.uk/tv/obb/prog_cb/obb144/.

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

In Breach

Special Message
AT, 17 September 2009, 20:39

Introduction

AT provides a general entertainment television service broadcast in Urdu and English.

Two viewers were concerned that AT broadcast an extended appeal, Special Message, over a number of days, to raise 300,000 to save two orphans. One complainant believed the funds raised were likely to be given to criminals. The other complainant suspected the appeal was not for a registered charity.

The programme was presented in Urdu and we therefore obtained a full translation. Having considered this, Ofcom identified two issues of concern:

the status of the broadcast appeal; and
an on-air reference to a complaint received by Ofcom.

Status of the broadcast appeal
The studio guest sought donations from viewers and responded to viewers live telephone calls. Details of a bank account were broadcast on screen but viewers were not told on behalf of what organisation donations were being sought. No information appeared to be provided on air to explain how viewers donations would help two orphaned girls that had been mentioned.

Rule 10.13 of the Code states:

Charity appeals that are broadcast free of charge are allowed in programmes provided that the broadcaster has taken reasonable steps to satisfy itself that:

the organisation concerned can produce satisfactory evidence of charitable status, or, in the case of an emergency appeal, that a responsible public fund has been set up to deal with it; and
the organisation concerned is not prohibited from advertising on the relevant medium.

Ofcom therefore asked AT to provide a full schedule of when the appeal was broadcast on the channel and, with regard to Rule 10.13 of the Code, the following details:

the organisation for which the appeal was broadcast;
the action taken by AT, prior to the broadcast of the appeal, to satisfy itself of the charitys / emergency appeals status;
the holder of the bank account screened during the broadcast; and
confirmation of whether donated funds were intended to be used to secure the release of kidnapped children and, if so, to whom the funds were ultimately to be given.

On-air reference to a complaint received by Ofcom
During the broadcast the studio guest stated that a complainant to Ofcom had said that on this TV, an appeal is being made to save orphan girls, it should not be allowed, adding, So Ofcom have written to me to ask me saying OK this is fine

At the time of broadcast, Ofcom had already requested from AT a recording of the appeal it had broadcast the previous day (16 September 2009) and the broadcaster was therefore aware of the complaint in question.

Rule 2.2 of the Code states, among other things, that:

portrayals of factual matters must not materially mislead the audience.

With regard to this rule, Ofcom asked AT:

what the studio guest meant when he referred to Ofcom saying OK this is fine; and
why he said it.

Response

Status of the broadcast appeal
AT said that it was unable to provide a full schedule of when the appeal was broadcast on the channel, as 90% of its studio equipment had recently been stolen.

The broadcaster added that the broadcast appeal was made for (i.e. on behalf of) an individual, who it named and who it said was currently in a village near Pashawar (in North-West Frontier Province), Pakistan.

AT did not respond further, with regard to Rule 10.13 of the Code.

On-air reference to a complaint received by Ofcom
AT did not respond, with regard to Rule 2.2 of the Code.

Decision

Status of the broadcast appeal
Ofcom noted the circumstances in which AT said it had had lost its studio equipment. However, we could see no connection between this event and the broadcasters inability to provide a broadcast schedule for the appeal in question.

Broadcasters may conduct in programmes, and free of charge, appeals for legitimate charities or publicly-recognised emergencies.

However, in this instance, from the information provided by the broadcaster, the beneficiary of the broadcast appeal appeared to be a private individual. Further, AT provided no evidence or assurance that it had taken any steps to satisfy itself that the beneficiary:

was not prohibited from advertising on television; and
had charitable status; or
was an emergency appeal for which a responsible public fund had been set up.

The broadcast was therefore in breach of Rule 10.13 of the Code.

On-air reference to a complaint received by Ofcom
In the absence of any response from the broadcaster on this issue, Ofcom was unclear why the studio guest had referred to the complaint about which we had sought a recording from the broadcaster. However, whatever the purpose of this reference, Ofcom considered that the studio guests additional comment (i.e. Ofcom saying OK this is fine) was likely to be understood by viewers as an endorsement of the broadcast appeals legitimacy.

Ofcom does not approve editorial content for broadcast. In this instance, the broadcaster was aware that Ofcom was not in a position to provide a view that such an appeal was in accordance with its rules, as it knew we were investigating a complaint on the matter.

As stated in Ofcoms guidance to Rule 2.2, the rule is designed to deal with content that materially misleads the audience so as to cause harm and offence.

In Ofcoms view, ATs inaccurate portrayal of this issue had the potential to mislead viewers that the appeal had been endorsed, in some form, by its regulator. Given that some on-air callers had expressed doubt about the appeals, Ofcom considered that the inaccurate portrayal of this matter may have encouraged viewers to donate to the broadcast appeal who would not otherwise have done so. In materially misleading the audience in this way, the broadcast was likely to cause harm and was in breach of Rule 2.2 of the Code.

Ofcom is particularly concerned by the serious nature of these breaches, in which financial donations were being sought from the audience, with the potential for viewers to be materially misled. Ofcom therefore puts the broadcaster on notice that, should any similar breaches recur in future, it is likely to consider further regulatory action.

Breaches of Rules 2.2 and 10.13

In Breach

CNN YouTube Debate on Climate Change
CNN International, 16 December 2009, 20:00

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, Turner Entertainment Networks International Limited holds the Digital Television Programme Service (DTPS) licence.

Turner Broadcasting System Europe Limited and Turner Entertainment Networks International Limited are both owned by the same parent company, and is referred here as Turner.

CNN YouTube Debate on Climate Change was sponsored by Siemens. The hour-long debate was broadcast from Copenhagen, Denmark, during the period that the United Nations Copenhagen Climate Change Summit^(-1-) was being held. The programme consisted of videos which members of the public had uploaded via YouTube. The videos shown on the programme were a mixture of songs, poems and views about climate change as well as questions for the panellists.

The four panellists in the studio were:

Yvo De Boer, Executive Secretary of the United Nations Framework Convention on Climate Change;
Daryl Hannah, actress;
Thomas Freidman, New York Times columnist and author of The World is Flat and Hot, Flat & Crowded; and
Bjorn Lomborg, Director of the Copenhagen Consensus Centre and author of Cool It: The Skeptical Environmentalists Guide to Global Warming.

During the programme, Kofi Annan, former UN Secretary General and Chairman of the African Progress Panel, was brought into the studio debate from Geneva, Switzerland via a satellite link.

A viewer objected to the programme being sponsored because the debate centred on many aspects of current politic [sic], public and industrial controversy, subjects that were heavily featured in news broadcasts during that week and which could only be considered to be current affairs therefore not eligible for sponsorship.

Ofcom noted that questions put to the panel via YouTube included^(-2-):

How important is a deal on climate change and how seriously are world leaders taking the issue of climate change?
Why dont people acknowledge the evidence that suggests that climate change is not caused by humans?
Will there be penalties for countries which do not meet their targets to reduce CO2 emissions? / How would the world police any agreement?
How many African leaders were invited to the UN Climate Summit in Copenhagen?
What can Africa do to help itself in relation to climate change?
People from poorer nations are demanding action from world leaders, are they getting it?
How valid is a global carbon tax? / Why are individuals taxed rather than the giant corporations?
People feel disenfranchised in relation to climate change - how do we get them more involved?

Ofcom also noted that throughout the programme there were various references to YouTube, including:

The presenter informing the audience: Hello and welcome to our programme the CNN YouTube Debate on Climate Changethis is a little different to the forums that most of you will have been used to seeing. I will be moderating but I wont be asking the questions. Through our partnership with YouTube, everyone around the globe has had the chance to be a part of this discussion.
The name of the programme CNN YouTube Debate on Climate Change which included the YouTube logo was displayed on one wall of the set and also on a television screen between the presenter and the panel at times when this screen was not being used to show videos. The name of the programme with the YouTube logo also appeared continuously in a digital on-screen graphic in the bottom right-hand corner of the screen.
The videos uploaded via YouTube appeared on a full screen mocked-up YouTube page, which displayed in the search bar the name of the person who had uploaded the video. Green graphic footprints were shown across the page to reflect the green footprints used on the set and in other on-screen graphics.

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.

In relation to the visual and verbal references to YouTube throughout the programme, Ofcom asked Turner for its comments with regard to Rule 10.5 of the Code which states that product placement is prohibited.

Response

Rule 9.1
Turner said that in its opinion the CNN YouTube Debate on Climate Change was not a current affairs programme. Turner continued that the debate was associated with climate change which it considered falls within the lifestyle genre rather than the current affairs genre. The broadcaster argued that the foundation for the discussion was the personal opinions of ordinary citizens from around the world as submitted in videos to a specific CNN area on the YouTube channel. There were personal statements, poems, musical adaptations from a wide range of people from around the world and these thoughts provided the focus/questions/ideas for the panel discussion.

Rule 10.5
Turner informed Ofcom that the programme was not sponsored by YouTube, there was no commercial relationship between YouTube and the programme. Neither was there any influence to the editorial content of the programme by YouTube.

The broadcaster explained that the public were invited to participate in the event via the YouTube platform and that was how the content and information for the debate was obtained. Turner said that the references to YouTube within the programme were to inform the viewer of this relationship and were consistent with the common practice in factual programme production with regard to information providers. Turner added that complete transparency [was] necessary to show how the video clips were obtained and selected.

Turner said that no undue prominence was given to any product or service within the programme and that all third party brand references were editorially justified. Turner added that no product was placed within the programme.

Having considered Turners submission, Ofcom requested from Turner a copy of any contractual agreements that existed between CNN and Google (the owner of YouTube).

The contract provided by the broadcaster set out the format of the programme, how it would be publicised and promoted, and the responsibilities assigned to each party. There was no financial element to the contract, rather it provided mutual benefits to each party. Ofcom noted, in particular, that in exchange for the promotion of the programme on the Google and YouTube websites, and the provision of the YouTube platform, CNN committed to providing Google and YouTube with extensive visual branding references during the programme. As a result, CNN agreed to:

prominently integrate YouTube and Google branding the COP15^(-3-) Townhall Event^(-4-) set; and
ensure that when each YouTube harvested question is played to the audience, panellists and on television, each such question will be in a frame with the YouTube logo prominently displayed as part of the graphic.

Turner subsequently explained that this contract had been based on an agreement with Google/YouTube that had been used previously for other feeds of the CNN International service that are not licensed by Ofcom. The broadcaster stated that in this subsequent use of the contract, the fact that the programme was intended for an Ofcom licensed feed was overlooked and so no express reference to compliance with the Broadcast Code was included.

Turner went on to state that despite what the contract provided, the programme had been subject to CNNs compliance checks, and the opinion of the CNN production staff who had checked the programme was that the references to YouTube as an information provider did not constitute undue prominence.

Decision

Rule 9.1
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^(-5-). It supports the important principle of editorial independence and impartiality in news and current affairs. A broadcasters editorial control over the content of its news and current affairs programming should not be, or appear to be, compromised.

The Code states:

A current affairs programme is 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 did not accept Turners submission that the debate fell within the genre of lifestyle programming, rather than the current affairs genre. Ofcom noted that as well as the personal statements, poems, musical adaptations, the videos played during the programme also contained specific questions for the panel to debate such as^(-6-):

How important is a deal on climate change and how seriously are world leaders taking the issue of climate change?
Why dont people acknowledge the evidence that suggests that climate change is not caused by humans?
Will there be penalties for countries which do not meet their targets to reduce CO2 emissions? / How would the world police any agreement?
How many African leaders were invited to the UN Climate Summit in Copenhagen?
What can Africa do to help itself in relation to climate change?
People from poorer nations are demanding action from world leaders, are they getting it?
How valid is a global carbon tax? / Why are individuals taxed rather than the giant corporations?
People feel disenfranchised in relation to climate change - how do we get them more involved?

The panel debated the answers to these questions about climate change during the period in which the UN Copenhagen Climate Change Summit was being held. The summit was a topic of extensive international discussion during the week which this programme was broadcast. The programme also contained an interview with Kofi Annan, former UN Secretary General and Chairman of the African Progress Panel.

Therefore Ofcom considered that the programme clearly contained explanation and analysis of current events and issues, and discussion of matters of international public policy. Ofcom concluded that the programme met the definition of a current affairs programme, and should not have been sponsored. As a result, the programme was in breach of Rule 9.1 of the Code.

Rule 10.5
One of the fundamental principles of Section Ten of the Code is that clear separation is maintained between advertising and programming (that is, editorial content). In this case, a contractual arrangement had been drawn up, in which it was a condition that CNN would display and integrate prominently a range of visual references to YouTube within the programme, including its branding and logo. In return, Google would promote the programme on the Google and YouTube websites, and provide the YouTube platform for viewers to submit their questions by video. Ofcom judged that this arrangement amounted to product placement.

Product placement is the inclusion of, or reference to, a product or service within a programme in return for payment or other valuable consideration to the programme maker or broadcaster (or any representative or associate of either).

In exchange for the promotion of the programme, and the provision of the YouTube platform, CNN had agreed to provide Google and YouTube with extensive visual branding references during the programme. Ofcom considered this to be a valuable consideration to the broadcaster.

Ofcom noted Turners submission that the references to YouTube, as an information provider, did not constitute undue prominence. However, as the references resulted from a product placement arrangement, they were unacceptable under the Code, regardless of any possible editorial justification.

Ofcom therefore found the programme in breach of Rule 10.5 of the Code.

Ofcom was concerned that, when drafting the contract for this programme , Turner had overlooked that the programme would be broadcast on its Ofcom licensed service.

These breaches 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.

Breaches of Rules 9.1 and 10.5

Footnotes:

1.- The Climate Summit was held in Copenhagen between 7 and 18 December 2009.

2.- These questions are a summary of those put to the panel by the presenter and prompted by the viewer videos. They are not quotations.

3.- COP15 stands for the 15th meeting of the Conference of the Parties to the United Nations Framework Convention on Climate Change.

4.- COP15 Townhall Event was the working title of the programme.

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

6.- See footnote 2.

In Breach

Wedi 7
S4C, 1 March 2010, 19:00

Introduction

Wedi 7 is a live early evening magazine programme, broadcast on weekdays on S4C, the Welsh television channel aimed specifically at a Welsh-speaking audience. The programme regularly features a competition in which viewers are invited to contact the studio by telephone to select one of three possible answers to a question, for the chance of winning a prize. Calls from a BT landline are charged at 5 pence.

Ofcom received a complaint from a viewer who had attempted to enter the competition promoted during the programme on 1 March 2010. The competition was promoted as being open to enter until 2.30pm the following day, and the prize on offer was a television. The complainant said that, despite calling within the timeframe stipulated during the programme, his call was answered with a recorded message that advised that lines were closed.

Ofcom therefore sought comments from the broadcaster under Rules 2.13 and 2.14 of the Code.

Rule 2.13 states that: Broadcast competitionsmust be conducted fairly.
Rule 2.14 requires that: Broadcasters must ensure that viewersare not materially misled about any broadcast competition.

Response

S4C explained that the programmes production company regularly uses a third party service provider to administer telephone competitions. It said that, unfortunately on this occasion, the programmes producer forgot to ring [the telephone service provider] to inform them that there was a competition that evening. Consequently, the telephone lines were not operational.

The broadcaster said that the production company realised the error directly after the programme had aired and upon doing so, immediately contacted the broadcaster to inform it of the problem.

S4C said that it was decided that the competition should be re-run at the earliest opportunity. During the following days edition of Wedi 3 (a similar programme broadcast in the afternoon) and Wedi 7, viewers were informed of the problems of the previous evening and told that the competition was to be replayed with additional prizes for 20 runners up. Both programmes also included an apology and instructions about how entrants could be reimbursed. S4C said that in light of this incident, the production company has adopted a new system whereby a number of people are responsible for ensuring that telephone lines are prepared, instead of solely the producer, which was the case beforehand.

The broadcaster said that 2,800 viewers called to enter the competition promoted on 1 March 2010 but as lines were closed, were unable to register their entry. It added that one viewer had contacted the production company to request that her refund be donated to charity. The production increased this donation to 5.

Whilst it recognised the error, S4C wished to point out that this was an isolated incident and that it did not purposely mislead the audience or seek to cover up the mistake once it had been discovered. Furthermore, in view of the additional responsibilities given to other production staff, the broadcaster was confident that the error would not be repeated.

Decision

Ofcom noted the remedial action undertaken to ensure entrants had the opportunity of a obtaining a refund and participating in the competition when it was held again the following day. It also acknowledged that this was a genuine error and accepted that the broadcaster had not deliberately sought to mislead viewers about the competition, or withhold access to the competition lines after inviting viewers to enter.

However, Ofcom had concerns about the compliance procedure in place in relation to the competition telephone line. Merely relying on an individual to notify the call handling provider about the competition was not, in Ofcoms view, a sufficiently robust method of ensuring that lines were set up or being operated correctly. On this occasion, during a live production, the person responsible forgot to inform the provider, which led to the broadcast of a closed competition that a significant number of viewers attempted to enter.

Viewers were invited to enter a competition which they had no chance of winning. The competition was clearly not conducted fairly, in breach of Rule 2.13. Furthermore, although the cost to enter the competition was low, the broadcaster had nevertheless failed to ensure that its viewers were not materially misled by this competition, in breach of Rule 2.14.

In recent years, Ofcom has recorded numerous breaches of its rules relating to the running of broadcast competitions and has issued extensive guidance on how they should be conducted to ensure their compliance with the Code. While welcoming the subsequent actions taken by S4C, Ofcom was nevertheless concerned that prior to this incident, the broadcaster had considered that its process of setting up competition telephone lines was adequate.

Breaches of Rules 2.13 and 2.14

Footnotes:

1.-http://www.ofcom.org.uk/tv/ifi/guidance/bguidance/section2_2009.pdf

In Breach

Asiana Bridal Show 2010
Sunrise TV, 21 February 2010, 20:00

Introduction

Sunrise TV is a channel aimed at the UK Asian audience.

The Asiana Bridal Show is an annual event held over two days. It features a range of exhibitors that provide a variety of wedding services such as clothing, photography and catering. The event is co-sponsored by Sunrise TV and a number of other companies.

Sunrise TV broadcast a three-part series covering the highlights of the event. The third programme, shown on 21 February 2010, featured a series of interviews with exhibitors, which contained information about of the products they offered.
Ofcom received a complaint from a viewer who considered that the interviews in the programme amounted to advertisements for the businesses featured.

Ofcom viewed the programme and noted that during a number of these interviews, the presenter prompted interviewees to give the contact details for their business. In one case, contact details for an exhibitor were provided by the interviewer.

Ofcom sought the broadcasters comments on the programme in relation to the following Code rules:

Rule 10.3 Products and services must not be promoted within programmes;
Rule 10.4 No undue prominence must be given to in any programme to a product or service; and
Rule 10.5 Product placement is prohibited.

Response

Sunrise TV confirmed that no contractual arrangements existed between itself and exhibitors in respect of the interviews that were broadcast.

Sunrise TV also confirmed that it maintained editorial control over all aspects of the broadcast.

Sunrise TV explained that the event has been running for a number of years and has become an important part of the Asian calendar and the build up to the Asian wedding season. While some of the exhibitors at the event were national companies, the vast majority were small businesses with limited national recognition.

It was against this backdrop that the programmes format was designed, not only to showcase the current years fashions, but also to provide viewers with information about exhibitors and the scope of the show.

Sunrise acknowledged that the event itself was designed as a promotional vehicle for the exhibitors. It therefore recognised the importance of balancing the provision of information to viewers in an entertaining and informative programme against the requirements of the Code. When producing the series, the broadcaster said it was careful to avoid giving sponsor logos and exhibitor information a level of prominence that contravened the Codes requirements. Further, it interspersed the interviews with footage from the events catwalk show to provide viewers with an insight into the whole wedding event.

Sunrise TV did not believe that the programme was distorted for commercial purposes. However, it accepted that in some instances, the presenter afforded interviewees the opportunity to go beyond providing informative comment, and allowed them to provide contact details, which it acknowledged could be interpreted as promotional. It recognised that these elements could have been better edited to ensure compliance.

Decision

Ofcom notes Sunrise TVs confirmation that it had no contractual arrangement with any of the exhibitors in relation to the interviews. We therefore found no evidence of a breach of Rule 10.5 (product placement).

Ofcom accepts that, in the context of a programme covering an exhibition such as this wedding fair,viewers would expect to see information about the exhibitors and their services. In this context, we consider that the prominence given to the exhibitors was not excessive and was editorially justified. Therefore, we found no breach of Rule 10.4 (undue prominence).

However, this editorial justification did not extend to those instances where the interviewer prompted interviewees specifically to provide their contact details. On several occasions, the presenter asked certain interviewees: if somebody wants to get in touchwhere are you? This resulted in exhibitors providing details of their business location, telephone number or website. The effect of these references was to promote the businesses in question, in breach of Rule 10.3.

Breach of Rule 10.3

Resolved

(Celebrity) Big Brothers Big Mouth
E4, 29 January 2010, 23:05

Introduction

Big Brothers Big Mouth (BBBM) is the sister programme to Channel 4s main Big Brother series . It is transmitted live and is broadcast post-watershed and looks at events in the Big Brother House with a studio audience and celebrity guests. It provides a platform for fans to voice their views, put questions to the evicted housemates and discuss the latest events in the house. Viewers are able to contribute to the programme by phone, e-mail, text polls, or by leaving a message on the 24-hour "Mouthpiece" rant line.

This series of BBBM accompanied the 2010 series of Celebrity Big Brother (CBB). The series included six episodes which were mainly broadcast on E4 on Fridays at 23:00.

This episode of the programme was intended as the last ever episode of Celebrity BBBM, in light of the fact Channel 4 had announced it had no plans to make further series of CBB. It was broadcast the same night as the CBB series finale and followed the Channel 4 coverage of the event. The programme was presented by Davina McCall, who also presented CBB on Channel 4. It was preceded with a warning which stated:

First on Four, with strong language, adult humour and flashing images, the Big Mouth on a big event, Celebrity Big Brother.

The programme featured previously evicted celebrity housemates, including the five finalists. One of the guests on the programme was Vinnie Jones, who came third in the competition and had been evicted from the CBB house that night. During the programme a member of the studio audience asked Mr Jones how he had known instantly that the person who came into the house disguised in a chicken outfit was Ms McCall and not fellow housemate Nicola Tappenden. In response to the question, Mr Jones said:

she was walking like a retard, she was walking like this [he then demonstrated walking with difficulty] and our Nicky walks lovely.

Ms McCall then responded by saying:

I do not walk like a retard.

Complaints

Ofcom received eight complaints about the programme. In summary, all of the complainants were offended by the use of the term walking like a retard by Mr Jones, and the demonstration he gave after saying the comment. Seven of the complainants were also offended by the response from the presenter, Ms McCall, who had repeated the phrase. Four of the complainants also raised concerns that Ms McCall had appeared to enjoy the 'joke' and did not reprimand Mr Jones for the comment.
In line with Ofcoms procedures, the complaints were initially considered by the Executive without representations being requested from Channel 4. On 18 February 2010, Ofcom wrote to Channel 4 informing them that eight complaints had been received but not upheld. Ofcom stated that it was mindful of the overall context of the programme and decided on balance that there was not sufficient evidence to conclude that the word was necessarily intended to be offensive to anyone with learning difficulties. However, given the potential for such terms to cause offence, guidance was given to Channel 4. Ofcom stated that it takes the use of discriminatory language extremely seriously and reminded Channel 4 of the need to approach the broadcast of such language with sensitivity and care.

Two of the complainants requested a review of this decision. One of these requests was not initially treated as asking for a formal review and Ofcom instead wrote to the complainant again explaining its original decision. However, following further correspondence, Ofcom considered the two requests for review and, in accordance with Ofcoms Procedures for the handling of broadcasting standards or other licence-related cases ^(-1-), it was decided to refer the case to the Broadcasting Review Committee ^(-2-) (the Committee) because the reasoning of the original decision was insufficient.

Ofcom asked Channel 4 to submit written representations in relation to the requests for review and on how the relevant section of the programme complied with Rule 2.3 of the Code (which requires material that may cause offensive must be justified by the context).

Response

In response, Channel 4 stated that the programme had an established reputation for its irreverent humour and outspoken content and that the comments would not have exceeded the expectation of the audience watching at this time of night.

Channel 4 said, however, that it acknowledged that the comments could have caused offence to some viewers notwithstanding that, in this instance, the word was not directed at someone with a physical or mental disability. It added that the comment referred directly to Davina as part of a throw away banter between her and Vinnie Jones regarding the way she walked and that the comment was not used with the intention of offending anyone with learning difficulties.

However, Channel 4 stated that after complaints were made about the comments the programme was reviewed by the commissioning team responsible for Celebrity Big Brother, together with the Channels Diversity Advisor.

Channel 4 stated that the commissioning team regretted that in the heat of the moment during a live programme the comment by Mr Jones was allowed to go unchecked. It said that Channel 4 would normally respond to a comment of that nature by asking the presenter to admonish the person responsible and if appropriate, apologise to the audience. However on this occasion, due to the circumstances of the broadcast, including the very end of an intensive final-eviction day, this did not happen.

Channel 4 informed Ofcom that, in response to a complaint dated 9 February 2010 from one of the complainants, it had apologised on 10 February 2010 on behalf of Channel 4, the programme makers and Ms McCall, and had confirmed that it had removed these comments from its Video on Demand service (4OD) version of the programme.

Channel 4 also stated that when BBBM returns in the summer it would ensure that the programme making team and presenters were reminded of the importance of taking prompt action when contributors or guests make inappropriate comments. Channel 4 argued that, in the light of the prompt action it had taken, the complaints should be resolved.

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 applying those standards, Ofcom is required, by the Communications Act 2003, to do so in the manner that best guarantees an appropriate level of freedom of expression.

In relation to generally accepted standards, including those in relation to offensive or discriminatory language, 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 first assess the character of the content itself and then assess the context in which that content is broadcast. In the case of discriminatory language this would involve assessing the potential for offence and balancing that against the particular editorial or contextual justification for broadcasting such language.

Importantly, Ofcom does not prohibit the use of any words. Broadcasters may be able to justify the broadcasting of language and material which the audience may find offensive.

The Committee first examined the language used in this case in order to assess the potential it had for causing offence. In doing so the Committee recognised that the use of discriminatory language of this nature can be profoundly offensive to some viewers as it singles out a minority in society. Ofcoms own research ^(-3-) into offensive language identified that the word retard is quite polarising. Those people who consider it offensive do so because it is a derogatory term that refers to a disability.

The Committee recognised that the potential offence caused by a discriminatory word such as retard depends on the context in which it is used. For example, when using such words in a scripted drama the potential to offend may be lessened as the language may be used to identify the views or personality traits of a particular fictional character.

In the Committees opinion, however, the comments made by both Mr Jones and Ms McCall in this programme were clearly capable of causing offence. In reaching this view, the Committee noted that the use of the word retard by Mr Jones, although arguably intended as a joke and not aimed at an individual with learning difficulties, could be seen as being a comment on people in society with a particular disability. This was reinforced by Mr Jones demonstrating walking with difficulty when imitating the way in which Ms McCall had walked. Mr Jones then unfavourably compared the walk with that of fellow housemate Nicola Tappenden, which he described as lovely. It was the Committees view that his use of the word retard was capable of being understood not as merely a passing reference directed towards Ms McCall, but also as ridiculing those with a physical or learning difficulty, emphasised by his attempt at imitation.

The Committee was particularly concerned that not only was Mr Jones comment not corrected but that it was repeated by the presenter, Ms McCall, without any apparent recognition of its potential to cause offence. The Committee, while acknowledging this was a live show, considered that in this instance the action of Ms McCall had the potential to heighten the offence to viewers.

The Committee was also concerned that the programme makers took no action during the programme to seek to mitigate the offence that would have been caused by the comments. The Committee noted Channel 4s admission that it would normally respond to a comment of that nature by asking the presenter to admonish the person responsible and if appropriate, apologise to the audience. It said that, due to human error, it had failed to do so on this occasion.

In the Committees opinion that failure suggested a lack of understanding during the live broadcast of how offensive the comments had been.

The Committee then examined any other contextual factors which might have limited the potential for offence. It took account of the fact that Big Brothers Big Mouth is well known for its irreverent style, outspoken humour and studio banter, and that many viewers are familiar with this format. It also noted that this programme has always been broadcast live and well after the watershed, and that this particular broadcast was preceded by a warning about the content. The Committee recognised that viewers would have expected the programme to contain challenging humour as well as material likely to offend.

However, the Committee concluded that, on balance and in the circumstances of this particular case, there was insufficient context to justify the offence that was likely to be caused by the comments made during the programme. Therefore the broadcast breached generally accepted standards.

The Committee then went on to consider whether Channel 4 had taken immediate and appropriate steps to remedy this breach of generally accepted standards. The Committee noted the action taken by the broadcaster in response to the complaints made about the programme. In particular Channel 4 had voluntarily removed the comments from the Video on Demand (4OD) version of the programme after an internal review (albeit this was in response to a complaint several days after broadcast by an individual who is also a complainant in this case), and had apologised in writing to the complainant. The Committee also noted the measures taken by Channel 4 to ensure this does not happen again. The Committee considered these measures appropriate to remedy the breach of generally accepted standards and therefore considered the case resolved.

Resolved

Footnotes:

1.-http://www.ofcom.org.uk/tv/ifi/guidance/standards/

2.- The Broadcasting Review Committee is a sub-committee of the Ofcom Board consisting of members of the Ofcom Content Board. It reviews the decisions of the Ofcom Executive in fairness and privacy investigations, broadcasting standards investigations and other licence-related cases where either the complainant or the licensee is able to demonstrate that the decision is materially flawed.

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

Advertising Scheduling cases

In Breach

Advertising minutage
Kix!, Pop, Pop Girl, Tiny Pop, True Entertainment, True Movies, True Movies 2, various dates and times

Introduction

Rule 16b of the Code states: childrens programmes (other than schools programmes) with a scheduled duration of 30 minutes or less may not include an advertising or teleshopping break. Such programmes with a scheduled duration of longer than 30 minutes may have one break for each scheduled period of at least 30 minutes.

Both of these rules implement the requirements of European legislation, the Audiovisual Media Services (AVMS) Directive.

As part of Ofcoms routine monitoring of broadcasters compliance with COSTA, Ofcom observed that between 15 February and 2 March 2010, there were 48 separate instances, across Kix!, Pop, Pop Girl, Tiny Pop, True Entertainment, True Movies and True Movies 2 where the broadcaster appeared to have transmitted more than the permitted allowance of advertising in one clock hour.

Upon further monitoring, Ofcom also observed that between 1 and 28 February 2010, there were several instances across childrens channels; Tiny Pop, Kix!, Pop Girl, Pop, where the broadcaster appeared to have transmitted more than the permitted allowance of advertising breaks in a programme.

Ofcom wrote to CSC Media Group Ltd, the licence holder for Kix!, Pop, Pop Girl, Tiny Pop, True Entertainment, True Movies and True Movies 2, for its comments under Rule 4 and Rule 16 of COSTA.

Response

On this issue of minutage overruns, the licensee noted the severity of the incidents identified, which had occurred as a result of both human error and technical failures. As a result, the broadcaster explained it had retrained their staff on the need to comply with COSTA. Furthermore, the licensee stated it had undertaken and paid for significant enhancements to their scheduling software to better alert staff to potential overruns. In addition to this improved system, staff would be instructed to run manual checks on a daily basis.

On the issue of break pattern infringements, the licensee confirmed that all of its childrens channels had migrated to new scheduling patterns.

Decision

Ofcom notes that the licensee has taken further steps to ensure compliance with COSTA, including investment in new scheduling software and further staff training.

However, due to a high number of incidents across CSC Media Group channels within a short period of time, Ofcom consider these to be a significant breaches. We further note previous overruns and break pattern incidents that occurred across CSC Media Group channels, between 16 December 2009 and 24 January 2010.

Following these earlier instances, the licensee informed Ofcom that sufficient procedures had been implemented to ensure future compliance with the COSTA.

Ofcom is concerned that the licensee had not taken sufficient and immediate steps to prevent additional infringements recurring across its channels. Accordingly, we are recording a breach of Rule 4 and Rule 16 of COSTA.

Ofcom will continue to monitor the licensees channels to assess their compliance with COSTA.

Ofcom may consider further regulatory action if this problem recurs.

Breaches of Rule 4 and Rule 16 of COSTA

In Breach

Advertising minutage
Film 24, 1 to 14 March 2010, various dates and times

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 Ofcoms routine monitoring of broadcasters compliance with COSTA, Ofcom observed that between 1 and 14 March 2010, there were 22 separate incidents, where Film 24 appeared to have transmitted more than the permitted allowance of advertising minutes in one clock hour.

Ofcom wrote to Goldfinn Limited, the license holder for Film 24, for its comments under Rule 4 of COSTA.

Response

The broadcaster explained that the overruns were due to a number of complex scheduling problems, including failures in the existing scheduling software which was further compounded by a change of media sales house advertising systems.

The broadcaster further explained that it had conducted an internal investigation into the problems encountered with break scheduling. This had resulted in new systems being put in place by Film 24s media sales house and Canis Media (Film 24s scheduling provider). Furthermore, the scheduling software had been upgraded as a direct consequence to include an automatic alarm if the break schedules exceeded the clock hour limits.

Decision

Ofcom notes that Film 24 has taken further steps to ensure compliance with COSTA.

Notwithstanding this, Ofcom consider these incidences to be significant breaches and notes the high number of overruns that took place within a short two week period. We further note previous instances that occurred on Film 24 between 3 January and 28 February 2010, after which the broadcaster had provided Ofcom with assurances that new procedures were in place to prevent further overruns.

Ofcom is concerned that these procedures were not sufficient to prevent the latest overruns recurring. Accordingly, we are recording a breach of Rule 4 of COSTA.

Ofcom may consider further regulatory action if this problem recurs.

Breach of Rule 4 of COSTA

In Breach

Advertising minutage
ESPN, 17 February 2010, 20:00, 19 February 2010, 16:00, 24 February 2010, 20:00, 26 February 2010, 06:00, 28 February 2010, 15:00
ESPN Classic, 27 February 2010, 00:00

Introduction

As part of Ofcoms routine monitoring of broadcasters compliance with COSTA, Ofcom observed that between 17 February and 28 February 2010, there were five separate incidences, where ESPN appeared to have transmitted more than the permitted allowance of advertising minutes, during one clock hour.

Additionally, Ofcom observed that on 27 February, ESPN Classic appeared to have transmitted more than the permitted allowance of advertising minutes, during one clock hour.

Ofcom wrote to ESPN (Europe, Middle East and Africa) Ltd, the license holder for ESPN and ESPN Classic, for its comments under Rule 4 of COSTA.

Response

The broadcaster explained that the overruns on ESPN and ESPN Classic can be partly attributed to the effects of transferring over to a new playout system. The broadcaster further stated that, occasionally, some programmes would not play in full which had repercussions for the timing of automated breaks, leading to the subsequent overruns. The broadcaster further explained in relation to ESPN, which broadcasts live sports; that existing compliance checking procedures were neither flexible nor effective enough to deal with the uncertain duration of live sports events.

As a result of the incidents, the broadcaster had introduced a number of technical improvements and further training for staff, to prevent future overruns on both channels.

Decision

Ofcom notes that ESPN and ESPN Classic have taken further steps to ensure compliance with COSTA.

However, Ofcom considers these instances as significant breaches. We further note several previous instances that occurred between 1 January and 13 February 2010 on ESPN and between 1 and 3 January 2010 on ESPN Classics. Following these incidents, the broadcaster assured Ofcom that procedures would be significantly improved to prevent further overruns from occurring. Ofcom considers that these procedures were neither immediate not effective enough to prevent the latest overruns recurring. Accordingly, we are recording a breach of Rule 4 of COSTA.

Ofcom may consider further regulatory action if this problem recurs.

Breach of Rule 4 of COSTA

In Breach

Advertising minutage
Zing, 15 March 2010, 14:00, 15 March 2010, 15:00, 16 March 2010, 14:00 and 17 March 2010, 15:00

Introduction

As part of Ofcoms routine monitoring of broadcasters compliance with COSTA, Ofcom observed that on 15 March 2010, Zing appeared to have transmitted a total of 14 minutes and 45 seconds during one clock hour (2 minutes and 45 seconds more than allowed). Separately, on the same day, Zing also appeared to have transmitted 13 minutes and 30 seconds of advertising was transmitted during another clock hour (1 minute 30 seconds more than allowed)

Upon further monitoring by Ofcom, it also appeared that on 16 March 2010, Zing transmitted a total of 15 minutes of advertising in one clock hour (3 minutes more than allowed) Furthermore, on 17 March 2010, Zing appeared to have transmitted 12 minutes and 7 seconds of advertising (7 seconds more than is permitted)

Ofcom wrote to Asia TV Limited, the licence holder for Zing, for its comments under Rule 4 of COSTA.

Response

The broadcaster explained that the overruns are attributed to variations between the planned and actual programme start times. This led to breaks being transmitted in the wrong clock hours, which led to the subsequent overruns. As a result of these instances, the broadcaster stated they had installed new technical software to prevent future overruns occurring.

Decision

Ofcom notes that Zing has taken further steps to ensure compliance with COSTA. However, we note previous incidences (18 and 20 January 2010) where Zing had exceeded the permitted allowance of advertising minutes in one clock hour. Following these incidences, Zing had stated that new systems had been installed to prevent further incidents occurring. Ofcom is concerned that these measures were not adequate to prevent the latest overruns from occurring. Some of these individual overruns were significant. Accordingly, we are recording a breach of Rule 4 of COSTA.

Ofcom may consider further regulatory action if this problem recurs.

Breach of Rule 4 of COSTA

In Breach

Advertising minutage
More 4, 3 March 2010, 00:00
Channel 4 and S4C, 20 February 2010, 13:00

Introduction

This rule implements the requirements of European legislation, the Audiovisual Media Services (AVMS) Directive.

Channel 4
As part of Ofcoms routine monitoring of broadcasters compliance with COSTA, we observed that on 20 February 2010, Channel 4 appeared to have transmitted a total of 13 minutes and 44 seconds of advertising during one clock hour (1 minute and 44 seconds more than allowed). This overrun occurred during the programme C4 Racing.

Separately, on 3 March, Ofcom observed that Channel 4 licensee, More 4, appeared to have transmitted 12 minutes and 11 seconds of advertising during one clock hour (11 seconds more than allowed).

S4C
Ofcom was notified by S4C that it had broadcast a live simulcast of the programme C4 Racing, on its analogue service on 20 February 2010. As a result S4C had too broadcast a total of 13 minutes and 44 seconds of advertising in one clock hour (1 minute and 44 seconds more than allowed).

Channel 4 and S4C are each responsible for ensuring material broadcast on their channels is compliant with the Code. In the circumstances, Ofcom requested separate formal comments from Channel 4 and S4C in relation to Rule 4 of COSTA.

Response

Channel 4
With regards to the overrun on Channel 4, the licensee explained that as a result of human error, a break had been transmitted in the wrong clock hour which led to the subsequent overrun.

With regards to the overrun on More 4, the broadcaster explained that the schedule for More 4 was running later than had been planned. This led to the transmission of a break slipping from one clock hour to the next, which led to the subsequent overrun.

As a result of both overruns, Channel 4 said they improved working practices amongst staff and installed enhanced technical procedures that would alert staff in the event of a possible overrun.

S4C
S4C explained that as a result of the programme, C4 Racing, being transmitted simultaneously with Channel 4, they had followed Channel 4s break pattern which led to the subsequent overrun on S4C. The broadcaster further stated that no other incidents had occurred on S4C since and were unlikely to, again, in the future. Due to S4Cs analogue channel being switched off, this would be the last time S4C would be transmitting C4 Racing or any other Channel 4 programming simultaneously with Channel 4.

Decision

Channel 4
Ofcom notes that Channel 4 has taken further steps to ensure compliance with COSTA. However, we note a previous incident on Channel 4, on 24 January 2010, where a total of 14 minutes and 11 seconds of advertising was broadcast during one clock hour (2 minutes and 11 seconds more than allowed).

Ofcom is concerned that Channel 4 did not take sufficient steps to prevent additional infringements recurring across its channels. Accordingly, we are recording a breach of Rule 4 of COSTA. Ofcom may consider further regulatory action if this problem recurs.

S4C
Ofcom notes that S4C itself reported the overrun to Ofcom, and that it arose because it was carrying a live simulcast of Channel 4 Racing. Following digital switchover in Wales, S4C no longer simulcasts Channel 4 programming, so this particular problem will not recur. Accordingly, we consider the matter to be resolved.

Channel 4: In Breach of Rule 4 of COSTA

S4C: Resolved in respect of Rule 4 of COSTA

In Breach

Advertising minutage
Horse & Country TV, 2 March 2010, 21:00 and 8 March 2010, 21:00

Introduction

As part of Ofcoms routine monitoring of broadcasters compliance with COSTA, Ofcom observed that on 2 March 2010, Horse & Country appeared to have transmitted a total of 12 minutes and 34 seconds of advertising during one clock hour (34 seconds more than allowed). Separately, on 8 March 2010, Horse and Country appeared to have transmitted a total of 14 minutes of advertising during one clock hour (2 minutes more than allowed).

Ofcom wrote to Horse and Country TV for its comments under Rule 4 of COSTA.

Response

The broadcaster explained that both overruns were the result of programme start times inadvertently slipping beyond their schedule time. This resulted in the advertising break slipping from one clock hour to the next, which led to subsequent overruns occurring. As a result of these instances, the broadcaster explained they needed to do more to ensure future compliance with COSTA and has introduced a number of improvements to their operational procedures.

Decision

Ofcom notes that Horse & Country has taken further steps to ensure compliance with COSTA.

However, we note several previous instances (between 5 January 2010 and 27 February 2010) where Horse & Country had exceeded the permitted allowance of advertising minutes in one clock hour. Following these previous instances, the broadcaster had provided Ofcom with assurances that no further overruns would occur on Horse & Country due to new and improved procedures being installed. Ofcom is concerned that these procedures were not sufficient enough to prevent the latest overruns from occurring. Accordingly, we are recording a breach of Rule 4 of COSTA.

Ofcom may consider further regulatory action if this problem recurs.

Breach of Rule 4 of COSTA

In Breach

Advertising minutage
Body in Balance, 4 April 2010, 17:00

Introduction

As part of Ofcoms routine monitoring of broadcasters compliance with COSTA, Ofcom observed that Body in Balance appeared to have transmitted a total of 13 minutes and 08 seconds of advertising, during one clock hour (1 minute 08 seconds more than allowed).

Ofcom wrote to Body in Balance for its comments under Rule 4 of COSTA.

Response

The broadcaster explained that the overrun was the result of an error in the calculation of advertising minutes; a process which was currently reliant on a manual checking system. This error led to an overrun of advertising minutes in one clock hour. As a result of the incident, the broadcaster explained that they would improve their manual checking processes, however, at present, could not financially afford to introduce a more robust automated checking system.

Decision

Ofcom notes the improvements the broadcaster has made to ensure future compliance with COSTA. However, we are concerned that Body in Balances existing procedures were not sufficient enough to prevent the latest overrun from occurring. Accordingly, we are recording a breach of Rule 4 of COSTA.

Breach of Rule 4 of COSTA

Note to Broadcasters

Ofcoms Code on the Scheduling of Television Advertising

In recent months, several channels have been found in breach of rules in Ofcoms Code on the Scheduling of Television Advertising (COSTA) relating to the amount of advertising and the number of permitted advertising breaks.

The Code (http://www.ofcom.org.uk/tv/ifi/codes/code_adv/tacode.pdf) sets out the rules with which television broadcasters licensed by Ofcom (broadcasters) must comply when carrying advertising. These rules give effect to relevant provisions of the Audio Visual Media Services (AVMS) Directive.

In particular, the Code states that:

time devoted to television advertising and teleshopping spots on any channel in any one hour must not exceed 12 minutes; and
restrictions apply when inserting advertising breaks during the following programmes:
films and news programmes may only include one advertising or teleshopping break for each scheduled period of at least 30 minutes;
childrens programmes (other than schools programmes) with a scheduled duration of 30 minutes or less may not include an advertising or teleshopping break. Such programmes with a scheduled duration of longer than 30 minutes may have one break for each scheduled period of at least 30 minutes. Breaks are not permitted within schools programmes, but may be scheduled between programmes;

Ofcom actively monitors compliance with the Code, and takes breaches seriously.

Where Ofcom considers that a channel may have exceeded its hourly allowance of advertising minutage, or have taken more than the permitted number of internal breaks, we shall investigate. A list of channels under investigation is published each week at http://www.ofcom.org.uk/advice/audience_complaints/. Further information relating to Ofcoms investigation procedures can be found at http://www.ofcom.org.uk/tv/ifi/guidance/standards/standards.pdf.

Ofcom is concerned by some licensees continuing failure to comply with the requirements of COSTA. Broadcasters should note that Ofcom will consider imposing sanctions against them including fines where they seriously or repeatedly breach the Code.

For further information on Ofcoms sanctions procedure, please refer to the following link: http://www.ofcom.org.uk/radio/ifi/ifiguidance/sanctions/.

For all enquiries relating to COSTA, please contact advertising.rules@ofcom.org.uk

Other Cases

In Breach

209radio, community radio service for Cambridge
28 February 2010 to present

Introduction

On 28 February 2010 209radio Ltd, the company holding a licence to provide a community radio service for Cambridge, broadcasting as 209radio, ceased broadcasting its licensed service.

Accordingly, on 17 March Ofcom wrote to 209radio Ltd to ask how 209radio Ltd had complied with the following two conditions in its licence relating to format delivery.

Condition 2(1) contained in Part 2 of the Schedule to the licence, which states that:

The Licensee shall provide the Licensed Service specified in the Annex for the licence period.

Condition 2(4), contained in Part 2 of the Schedule to the licence, which states that:

The Licensee shall ensure that the Licensed Service accords with the proposals set out in the Annex so as to maintain the character of the Licensed Service throughout the licence period.

Response

209radio Ltd confirmed that it was no longer broadcasting its normal service and explained that this was due to financial problems.

Decision

By ceasing to broadcast its licensed service from 28 February 2010, 209radio Ltd was clearly in breach of the above licence conditions. Ofcom has therefore formally recorded this breach by 209radio Ltd.

We also note that this breach by the Licensee is continuing, as 209radio has not resumed broadcasting its licensed service since 28 February 2010. Provision by a Licensee of its licensed service is the fundamental purpose for which a community radio licence is granted. Ofcom has a range of duties in relation to radio broadcasting, including securing a range and diversity of local radio services which are calculated to appeal to a variety of tastes and interests, and the optimal use of the radio spectrum. These matters find expression in, or are linked to, the licence condition requiring the provision of the specified licensed service. Where a licensed service is not being provided in accordance with the licence, none of the required community radio programme output is provided, nor are the off-air activities included in the licence (as set out in the Licensees key commitments). These include social gain (such as training programmes, and opportunities for discussion) and access to and participation in the service (volunteering opportunities, for example). This is to the potential disadvantage of the target community, and in addition, choice for listeners is reduced. Finally, it is not an optimal use of the radio spectrum to have allocated frequencies unused, or not used for the purpose for which they have been allocated.

Ofcom is now considering the most appropriate next steps, including possible revocation of the licence. Since revocation requires a statutory sanction, Ofcom has formally notified the Licensee that we are considering these licence contraventions for statutory sanction in light of their seriousness and ongoing nature.

Breach of Licence Conditions 2(1) and 2(4) in Part 2 of the Schedule to the community radio licence held by 209radio Ltd (licence number CR095)

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

In this section

Issue number 158 24/05/10 (470 kB)

Full Print Version

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. The Broadcasting Code can be found here.

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) and can be found here.

c) Code on the Scheduling of Television Advertising (“COSTA”) can be found here.

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, can be found here.

Broadcast Bulletin Issue number 158 24/05/10

Standards cases

In Breach

Bang Babes Tease Me, 25 January 2010, 21:00, and 27 January 2010, 21:30Tease Me 2, 10 February 2010, 21:00

In Breach

Tease Me: Earlybird Tease Me TV (Freeview), 25 January 2010, 07:15

In Breach

Tease Me: Earlybird Tease Me TV (Freeview), 15 February 2010, 05:30

In Breach

Special Message AT, 17 September 2009, 20:39

In Breach

CNN YouTube Debate on Climate Change CNN International, 16 December 2009, 20:00

In Breach

Wedi 7 S4C, 1 March 2010, 19:00

In Breach

Asiana Bridal Show 2010 Sunrise TV, 21 February 2010, 20:00

Resolved

(Celebrity) Big Brothers Big Mouth E4, 29 January 2010, 23:05

Advertising Scheduling cases

In Breach

Advertising minutage Kix!, Pop, Pop Girl, Tiny Pop, True Entertainment, True Movies, True Movies 2, various dates and times

In Breach

Advertising minutage Film 24, 1 to 14 March 2010, various dates and times

In Breach

Advertising minutage ESPN, 17 February 2010, 20:00, 19 February 2010, 16:00, 24 February 2010, 20:00, 26 February 2010, 06:00, 28 February 2010, 15:00ESPN Classic, 27 February 2010, 00:00

In Breach

Advertising minutage Zing, 15 March 2010, 14:00, 15 March 2010, 15:00, 16 March 2010, 14:00 and 17 March 2010, 15:00

In Breach

Advertising minutage More 4, 3 March 2010, 00:00Channel 4 and S4C, 20 February 2010, 13:00

In Breach

Advertising minutage Horse & Country TV, 2 March 2010, 21:00 and 8 March 2010, 21:00

In Breach

Advertising minutage Body in Balance, 4 April 2010, 17:00

Note to Broadcasters

Other Cases

In Breach

209radio, community radio service for Cambridge28 February 2010 to present

In this section

Issue number 158 24/05/10 (470 kB)

Related Items

Bang Babes
Tease Me, 25 January 2010, 21:00, and 27 January 2010, 21:30
Tease Me 2, 10 February 2010, 21:00

Tease Me: Earlybird
Tease Me TV (Freeview), 25 January 2010, 07:15

Tease Me: Earlybird
Tease Me TV (Freeview), 15 February 2010, 05:30

Special Message
AT, 17 September 2009, 20:39

CNN YouTube Debate on Climate Change
CNN International, 16 December 2009, 20:00

Wedi 7
S4C, 1 March 2010, 19:00

Asiana Bridal Show 2010
Sunrise TV, 21 February 2010, 20:00

(Celebrity) Big Brothers Big Mouth
E4, 29 January 2010, 23:05

Advertising minutage
Kix!, Pop, Pop Girl, Tiny Pop, True Entertainment, True Movies, True Movies 2, various dates and times

Advertising minutage
Film 24, 1 to 14 March 2010, various dates and times

Advertising minutage
ESPN, 17 February 2010, 20:00, 19 February 2010, 16:00, 24 February 2010, 20:00, 26 February 2010, 06:00, 28 February 2010, 15:00
ESPN Classic, 27 February 2010, 00:00

Advertising minutage
Zing, 15 March 2010, 14:00, 15 March 2010, 15:00, 16 March 2010, 14:00 and 17 March 2010, 15:00

Advertising minutage
More 4, 3 March 2010, 00:00
Channel 4 and S4C, 20 February 2010, 13:00

Advertising minutage
Horse & Country TV, 2 March 2010, 21:00 and 8 March 2010, 21:00

Advertising minutage
Body in Balance, 4 April 2010, 17:00

209radio, community radio service for Cambridge
28 February 2010 to present