Broadcast Bulletin Issue number 164 23/08/10

Special Live With Jassi Khangura, The Circle, The Raj Show, Bang Babes, Early Bird, 18 Keen, Live XXX Babes, Sport XXX Babes, The Naked Office, Provision of recordings, Advertising minutage, Complaint by Ms Farwa Wiechmann, Cereal Partners UK (“Nestlé”),Kellogg’s, Tom Sanders, Mr Paul Parry, Jeremy Davies, Mr Edward Saleh, Painted Children UK Ltd & Ms Geraldine Stevens.

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

Special Live With Jassi Khangura
The Sikh Channel, 2 May 2010, 18:45

Introduction

The Sikh Channel is in the religious section of the Sky Electronic Programme Guide (EPG).The channel is aimed at the Sikh community in the UK. Special Live with Jassi Khangura was a programme in Punjabi, which featured as an interviewee Jassi Khangura, who is a serving politician in the Punjab area of India. Ofcom received a complaint that this programme - which took place during the recent 2010 UK General Election campaign - included a contribution from a Conservative party general election candidate and did not have any contributions from other political parties.

Ofcom commissioned an independent translation of the content of this broadcast. We noted it was a studio discussion programme. It featured eight participants, including Gurcharan Singh and Jas Parmer, both Conservative party Parliamentary candidates ^(-1-) in the General Election that took place four days after this programme was broadcast. It appeared to Ofcom that the discussion which took place concerned matters relating to the constituencies of the election candidates. At times of election specific rules apply to the broadcast of constituency reports and discussions.

Ofcom therefore asked The Sikh Channel for its comments under Rule 6.9, which states:

If a candidate takes part in an item about his/her particular constituency, or electoral area, then candidates of each of the major parties must be offered the opportunity to take part. (However, if they refuse or are unable to participate, the item may nevertheless go ahead.)

Response

The Sikh Channel said that this programme was a special programme about the career of the Punjabi politician Jassi Khangura. The broadcaster said that Gurcharan Singh and Jas Parmer were former colleagues of Jassi Khangura and the fact they appeared in the programme was coincidental to the election period as they brought him [Jassi Khangura] as a guest to the Sikh Channel. In addition, The Sikh Channel said Gurcharan Singh and Jas Parmer were not appearing in the programme for the purposes of self-promotion but were merely assisting the main guest of the programme i.e. Jassi Khangura.

Decision

Section Six of the Code applies specific rules at the time of elections. If broadcasters choose to cover election campaigns, they must ensure that they comply with Rules set out in Section Six of the Code, and in particular the constituency reporting Rules laid out in Rules 6.8 to 6.13 of the Code. These are specific Rules that apply when a broadcaster is broadcasting a constituency report during an election campaign (i.e. when the report or the candidate focuses on his/her constituency). Ofcom guidance ^(-2-) to Section Six states that Rule 6.9 requires that if a candidate takes part in an item about his/her constituency then the broadcaster must ensure that each of the major parties (in the case of the UK as a whole - the Labour, Conservative and Liberal Democrat parties) is offered an opportunity to take part, as well as those with evidence of significant previous or current electoral support (Rule 6.10).

In this case, we noted the broadcaster invited two Conservative party parliamentary candidates to take part in a discussion in the programme. We note the broadcasters representations that the focus of this programme was the career of an overseas politician. However, we noted that during the programme both Gurcharan Singh and Jas Parmer made various comments relating to the constituencies in which they were standing as Parliamentary candidates.

For example, at different times Gurcharan Singh said ^(-3-):

I was selected on 5 December 2008. On paper this is a Labour seat so I had to begin work and I did begin in earnest. I began on simple rounds. I sent letters to about 15,000 people and made a survey between 700 and 800. There were two important questions: How did you vote last time? How do you think you will vote this time?

an important issue came up and that is that concerning the hospital in Southall, which treats 100,000 accident and emergency cases and where there is a maternity unit where 4,000 women give birth yearly, a paper was published that this service be closed. This hurt everybody. Our present MP did not raise a voice in protest against this. I had 1,860 people sign and sent it to the Secretary of State. He said that it shouldnt have been closed.

They were the Labour Party and they thought that the seat was theirs, where was the need to get into all these things? There is no need to work. They are Asian, the vote is community-linked. No petition. No dialogue. Yes they did do one thing. They instructed their manager, their chief executive not to shut down for that would lead to a lot of noise. But see the gazette, the local paper they launched their campaign Save our Services. I launched our campaign Save our Services.

So this is a part of our campaign and now only four days remain and in these four days you will have to decide who you will cast your vote for, if you do vote. Later do not regret that if you had cast your vote we might have won.

We have to be prepared with our votes or else we will regret itSo vote early and vote Conservative and vote according to your conscience. Before signing, before crossing, look at the credibility of the candidate.

In addition, at different times Jas Parmer said:

You asked about the campaign. When, in 2008, the post office was being closed under the aegis of the Labour Party, I had campaigned at various places in Smethick. Our sitting MP, John Spellar, moved and put to the vote two motions on 18 March and in both, the vote was for closure of the post office. I campaigned. I was selected in 2009, a year after the selection of brother Gurcharan. My campaign is a short campaign. Our association here was in a way as good as non existent. So in a way I had to build an association hereWhen the Labour guys saw us they turned the other way though they had a former MP.

Our spirits have soared from the love and support we have got in Smethick and we are doing door-to-door campaigning. We have also sent 3 to 4 leaflets. My campaign hinges on two things: the first is about honest politics. Our politics will be honest politics. The Conservative Party has said that if your MP does not stand the test of honesty and integrity, then the people have the right to deselect him and throw him out. This is something that has not happened in our parliament. The second is that as a Sikh I will not only serve the entire community but no one will need to tell us about our special needs and requirements.

We considered that this programme, by including contributions from two Conservative party Parliamentary candidates, giving their views about the constituencies in which they were seeking election, was clearly a constituency report or discussion as defined in the Code. The Code states that if a parliamentary candidate is given an opportunity to discuss matters relating to his constituency then other candidates from the major parties should also offered an opportunity to take part. This ensures due impartiality is strictly maintained at the time of elections with respect to specific constituencies.

We noted that the broadcaster, although it had invited two Conservative party Parliamentary candidates to participate in the programme, had not invited the Labour party candidates and Liberal Democrat party candidates for the constituencies of Ealing Southall and Warley to take part in the programme. Therefore, a constituency discussion concerning the constituencies of Ealing Southall and Warley was broadcast but not all the candidates from the major parties in these two constituencies were offered an opportunity to take part. We therefore concluded that the programme was in breach of Rule 6.9 of the Code.

Ofcom notes the view implicit in the comments from The Sikh Channel that this programme was not intended to be a constituency report. However, we remind all broadcasters of the care that needs to be taken when candidates appear in programmes during an election period. In particular, broadcasters must ensure that where a programme deals with matters relating to a specific constituency of a candidate appearing in the programme, then the broadcaster must ensure that each of the major parties is offered an opportunity to take part, as well as those parties with evidence of significant previous or current electoral support. In this regard, we refer broadcasters to the published Guidance to Section Six of the Code. This states: A useful test for broadcasters is to ask whether a report could be seen as promotional for a candidate within his/her constituency. If it is, then it requires input from, at least, the other main parties and potentially others depending on the constituency.

Breach of Rule 6.9

Footnotes:

  1.- Gurcharan Singh was the Conservative party candidate in the constituency of Ealing Southall and Jas Parmer was the Conservative party candidate for the constituency of Warley.

  2.- See http://www.ofcom.org.uk/tv/ifi/guidance/bguidance/section6_2009.pdf

  3.- All the following quotations are from the independent translation commissioned by Ofcom.

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In Breach

The Circle
Wedding TV, 23 to 30 April 2010, 00:00 01:00 and 10:00 11:00 daily

Introduction

Ofcom received a complaint that a psychic participation TV programme, The Circle, was being repeated within the schedules of the channel Wedding TV. The programme could not, the complainant argued, therefore satisfy the Broadcasting Codes rules on the use of premium rate telephone service (PRS).

We examined The Circle over the course of a week. Identical editions of the programme were broadcast twice each day for an hour starting at midnight and at 10:00. At least one of these transmissions therefore must have been recorded, and it was apparent from the content of the programmes that all the transmissions may have been recorded.

The Circle was hosted by the same presenter each time and consisted of interviews with psychics who also gave readings to viewers who had apparently called in and been put to air.

Other elements of the content included magazine offers for new members; special offer cheaper phone calls; frequent claims that there are 250 Circle psychics; promotion of the availability of phone psychics 24 hours a day, seven days a week; and the display of a rota of psychics with details of how to select each of them after calling. In addition every programme also included two pre-recorded segments featuring the presenter which solely promoted the company and its psychics.

Participation TV: background

Participation TV (PTV) is a type of programming in which viewers are encouraged to interact with a programme, typically by making a phone call or sending a text message. The telephone numbers and text shortcodes are promoted heavily within the programming and are invariably PRS. PTV programming usually features chat, sex chat, psychic or quiz content.

The Code makes clear that premium rate telephone numbers are considered to be products or services and cannot therefore appear in programmes without editorial justification. This means that they must meet one or both of the tests set out in Rule 10.9 ^(-1-) of the Broadcasting Code:

Premium rate numbers will normally be regarded as products or services, and must therefore not appear in programmes, except where:

• they form part of the editorial content of the programme; or
• they fall within the meaning of programme-related material.

PTV operators have argued that PTV programming is capable of meeting the Codes requirements as callers will influence what is seen and heard on screen, so fulfilling the Codes requirement that the PRS services form part of editorial. But for this to be possible the programming clearly must be live. Since pre-recorded or repeated PTV programming can never satisfy the requirements of Rule 10.9, such programming must be advertising.

Separately, the Broadcast Committee of Advertising Practice (BCAP ^(-2-)) Television Advertising Standards Code (the TV Advertising Code) currently contains an outright prohibition on the advertising of psychic services. Rule 10.3 of the TV Advertising Code states:

With very limited exceptions, advertisements for products or services concerned with (a) the occult or (b) psychic practices are not acceptable.

The very limited exceptions do not include personal psychic consultations or readings. These are prohibited at present and have been for many years ^(-3-).

All material broadcast on Ofcom licensed services must fall as either programming or advertising. Where the composition of an item or its terms of inclusion in a schedule (for example purchase of the items airtime) exclude the possibility of the material being classed as programming, it must be considered as advertising.

Investigation

Wedding TV informed Ofcom that the airtime for The Circle had been sold to a third party. This, in combination with the fact that the content was pre-recorded meant that this material was advertising and therefore had to comply with the TV Advertising Code.

Ofcom therefore sought Wedding TVs response to the acceptability of the material under the following TV Advertising Code rules:

Rule 2.1.1: There must be a clear distinction between programmes and advertisements.

Rule 3.1(i) [unacceptable categories]:
the occult etc. (See 10.3 The occult, psychic practices and exorcism for details and some exceptions).

Rule 5.1.1: No advertisement may directly or by implication mislead about any material fact or characteristic of a product or service.

Rule 5.1.2: No advertisement may mislead by omission about any material fact or characteristic of a product or service or advertiser.

Rule 10.3: With very limited exceptions, advertisements for products or services concerned with (a) the occult or (b) psychic practices are not acceptable.

The misleadingness provisions were raised with Wedding TV as we considered the presentation of the pre-recorded or repeated programmes to be potentially capable of misleading viewers into thinking that they could call the number on screen for the opportunity to be given a live psychic reading on air.

Response

Wedding TV explained its understanding that Ofcom currently classified PTV as editorial content and commented that PTV material will from September 2010 be re-classified as teleshopping. For these reasons Wedding TV had believed The Circle to be programming. Wedding TV supplied a number of quotes from Ofcom Consultations and Regulatory Statements on PTV to demonstrate why it had formed the understanding that The Circle could be treated as programming.

As to the potential for viewers to be misled into thinking that pre-recorded material was live, Wedding TV said that when the channel began to carry The Circle our compliance department was undergoing a period of change, and never having previously broadcast pre-recorded psychic content, did not fully appreciate the significance of transmitting pre-recorded content including PRS numbers and interactive elements and were too reliant upon information provided by our client.

Decision

Given that Wedding TV had sold the space in its schedule for The Circle, Ofcom concluded that the material must be regarded as advertising and be governed by the TV Advertising Code. This would have been so even if the air-time had not been rented out to another as the materialwas pre-recorded and contained heavy promotion of a product in the form of premium rate telephony, and therefore was inherently incapable of satisfying the requirements of Rule 10.9 of the Broadcasting Code.

In this context, it was clear that the content advertised psychic services which is prohibited under the TV Advertising Code. This was therefore a breach.

Ofcom also judged that the presentation of the material was misleading because it gave the appearance to viewers of being live, although it was pre-recorded. This resulted in the potential for viewers to believe that they could pay a premium rate to contact the show while it was on air, when in fact they could not.

Further, we took the view that in the context of a genre that has until now persisted on screen only on the basis that it is able to qualify as interactive programming given that it is prohibited as advertising it was not clear to viewers, or Ofcom, that The Circle was in fact placed as advertising and therefore that the advertising was not clearly distinct from programming, as required by Rule 2.1.1.

Breach of Broadcast Committee of Advertising Practice Television Advertising Standards Code Rules 2.1.1, 3.1(i), 5.1.1, 5.1.2, and 10.3

Footnotes:

  1.- This rule has been amended and renumbered following the Ofcom statement Participation TV: Regulatory Statement published on 3 June 2010. The changes will come into force on 1 September 2010.

  2.- The duty to regulate broadcast advertising is carried out by the Advertising Standards Authority ("ASA") and its industry arm, the Broadcast Committee of Advertising Practice ("BCAP"). The ASA makes adjudications against the television and radio codes; BCAP supervises and reviews the codes.

  3.- This prohibition, and one related to PRS-based sex chat services, are due to be relaxed on 1 September 2010, but remain in force until that date. Ofcoms Participation TV: Regulatory Statement, is available at: http://stakeholders.ofcom.org.uk/consultations/participationtv3/statement/

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In Breach

The Raj Show
Raaj FM, 27 April 2010, 11:00

Introduction

Raaj FM provides a community radio service for the Panjabi community in Sandwell, West Midlands.

The Raj Show is a music-based programme, which is presented in Punjabi. On this occasion, it was sponsored by Cape Hill Solicitors.

A listener complained that the presenter of the programme “repeatedly plugged the sponsor’s details…”

Ofcom noted that the presenter appeared to promote the programme’s sponsor within four lengthy sponsor credits. Each credit lasted between approximately one and three minutes. The credits not only stated that the programme was sponsored by Cape Hill Solicitors, but also included advertising messages, which:

• informed listeners that the sponsor was “experienced in immigration and asylum cases, as well as asylum appeals”;
• detailed the sponsor’s free services (e.g. “…on Tuesdays they provide free sponsorship ^(-1-) from 10:00am to 4:30pm…” and “…Wednesdays, free immigration advice surgery from 1:00 to 4:00pm…”);
• solicited listeners to contact the sponsor (e.g. “…if you have any residential or commercial problem, you should give them a chance…” and “…if you have any issue or problem, definitely get in touch with them…”); and
• provided the sponsor’s contact telephone number and two postal addresses.

We therefore asked Raaj FM for its comments on the matter, with regard to Rule 9.9 of the Code, which states:

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

The Code also states that one of the key principles of the sponsorship rules is to maintain “a distinction between advertising and sponsorship.”

Response

Raaj FM confirmed that the presenter-read messages were sponsor credits. The broadcaster believed that these credits were distinct from advertisements, as the presenter had announced the sponsorship arrangement and presented the credits in full. It added that, by contrast, all Raaj FM’s advertisements were introduced as such by the presenter, pre-produced and included music or jingles. In addition, they were scheduled for broadcast at specific times and the presenter welcomed listeners back to the programme after the advertisement or commercial break had ended.

Nevertheless, the broadcaster acknowledged that, in this instance, the presenter had “a style that [involved] an element of repetition and explanation of points which other presenters would not labour”, adding that this style was also “represented within the sponsorship credits with unnecessary repetition of key words and phrases and explanations that were not required.” It considered that “other presenters faced with the same task would have a different style and would present the sponsorship credit succinctly and in a much shorter time.”

Raaj FM also recognised that all its presenters were volunteers. It had therefore reviewed its policy concerning the broadcast of sponsor credits. While presenters had previously been provided with information to include in credits, which could then be presented in an individual style, the broadcaster now pre-scripted and scheduled sponsor credits to be presented at specific times. In addition, each credit would now “contain just one advertising sales message.”

The broadcaster said that it had also “reinforced” its training of presenters, “to highlight the difference between advertisements and sponsorship and the primary purpose of sponsorship credits being to inform listeners of the sponsorship arrangement.”

In conclusion, however, Raaj FM reiterated that, in this instance, it considered the presenter had “ensured … separation by … providing … details in a way that [was] distinct to advertisements.”

Decision

The primary purpose of a sponsor credit on radio is to inform the audience of the sponsorship arrangement. Nevertheless, a sponsor credit on radio should be brief.

Rule 9.9 states:“Credits must be short branding statements. However, credits may contain legitimate advertising messages”. Ofcom’s published guidance to Rule 9.9 reminds broadcasters that:

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

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

The presenter stated clearly that the programme was sponsored by Cape Hill Solicitors in each of the four sponsor credits. Nevertheless, the sponsor and its services were promoted for up to three minutes in each credit. Ofcom therefore considered that the emphasis of these credits was on advertising the sponsor and its services, rather than primarily informing listeners of the sponsorship arrangement.

We noted Raaj FM’s policy concerning the broadcast of clearly signalled and pre-recorded advertisements at scheduled times. This may generally have contributed to ensuring a distinction between advertisements and presenter-read sponsor credits.

However, in this instance, the presenter provided extended promotional messages about the programme sponsor and its products and services, within sponsor credits. Ofcom considered that these credits sounded more like full presenter-read advertisements for Cape Hill Solicitors (the sponsor) than brief branding statements.

The sponsor credits were in breach of Rule 9.9 of the Code.

Ofcom welcomed Raaj FM’s actions concerning its future broadcast of sponsor credits.

Breach of Rule 9.9

Footnotes:

  1.-In this context, ‘sponsorship’ refers to advice concerning the sponsoring of friends and/or family members to visit the UK or of a spouse to settle in the UK.

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In Breach

Bang Babes
Tease Me TV 2, 22 May 2010, 03:35 to 04:00

Introduction

Bang Babes is a programme on the adult sex chat television service Tease Me TV 2. Tease Me TV 2 is broadcast under a licence held by Playboy TV UK/Benelux Limited (“Playboy” or “the Licensee”). Playboy therefore has compliance responsibility for all programmes broadcast on that service, including Bang Babes. The service is available freely without mandatory restricted access on Sky channel number 902. This channel is situated in the 'adult' section of the Sky electronic programme guide ("EPG"). The channel broadcasts programmes after the 21:00 watershed based on interactive 'adult' sex chat services. Viewers are invited to contact onscreen female presenters via premium rate telephony services ("PRS"). The female presenters dress and behave in a sexually provocative way while encouraging viewers to contact the PRS numbers.

Ofcom received a complaint from a viewer who said that the broadcast “included prolonged and repeated close up graphic and intrusive images of vaginal and anal detail”. The complainant also said the broadcast showed “masturbation throughout”.

Ofcom noted that between 03:30 and 04:00, the broadcast included a female presenter wearing a yellow bikini top (which was pulled to the side to reveal her breasts) and a matching thong. During the broadcast she adopted various sexual positions for relatively prolonged periods of time, including bending over on all fours with her buttocks to camera and lying on her back with her legs spread wide open to camera. While in these positions the presenter’s anal and labial area was shown in close up and extensive detail. Throughout the broadcast the presenter repeatedly: rubbed her genital area with her fingers; rubbed her thong against her genitals; pulled her buttocks apart to reveal her anus; sucked her fingers to mimic performing oral sex on a man; and rubbed saliva over her breasts.

Ofcom requested formal comments from Playboy in relation to the following Code rules:

• Rule 1.18 ('Adult sex material' - material that contains images and/or language of a strong sexual nature which is broadcast for the primary purpose of sexual arousal or stimulation - must not be broadcast at any time other than between 2200 and 0530 on premium subscription services and pay per view/night services which operate with mandatory restricted access. In addition, measures must be in place to ensure that the subscriber is an adult);
• Rule 2.1 (the broadcaster must apply generally accepted standards); and
• Rule 2.3 (offensive material must be justified by context).

Response

Playboy said that “having viewed the content, it appears that some of the content was in breach of the Code, for which we apologise”.

It said that “we have recently started taking content from an experienced provider [of adult sex chat material]…much of this content is delivered live, and we have had to install new systems, both technical and procedural, to cope with this product”. It explained that there have been “some teething troubles, which have led to one or two slipups”. The Licensee said that as a result it will be more vigilant in the future.

Decision

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

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

Broadcasters are allowed to broadcast after the watershed (and without other access restrictions) material which is of a strong sexual nature as long as it is justified by the context. However, this material must not be considered to be ‘adult sex material’ (i.e. it is not strong sexual images which are broadcast for the primary purpose of sexual arousal or stimulation), or BBFC R-18 rated films or their equivalent.

Rule 1.18 of the Code requires ‘adult sex material’ to be broadcast only between 22:00 and 05:30, and then only if mandatory restricted access is in place. In judging whether material is ‘adult sex material’, and therefore is subject to this rule, broadcasters should be guided by the definitions used by the BBFC when referring to “sex-works at ‘18’”. This guidance has been supplemented by various decisions of Ofcom through a series of published findings, and published decisions of the Content Sanctions Committee. By these means Ofcom has made clear what constitutes ‘adult sex material’ ^(-1-).

In considering the contents of this programme Ofcom asked itself two questions:

• was the content of the programme 'adult sex material’; and
• did the broadcaster ensure that the content was provided with sufficient contextual justification so as to ensure that it fell within generally accepted standards.

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 broadcaster’s 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.

Ofcom considered this broadcast in respect of Rules 1.18, 2.1 and 2.3 of the Code.

In relation to Rule 1.18, Ofcom examined the content of the broadcast and considered that it contained material of a very strong sexual nature, including graphic and intrusive images of genital and anal detail. For example, during the broadcast the presenter was shown apparently performing masturbation on herself by repeatedly touching her genital area and rubbing her thong against her genitals. In Ofcom's opinion, in this particular case, a viewer could reasonably have perceived the sexual acts as real. The presenter was also shown at various times bending over with her buttocks close up to camera and pulling her buttocks apart to reveal her anus and extensive labial detail. Further, Ofcom took account of the fact that the sequences were, in some cases, relatively prolonged and repeated throughout the 25 minute broadcast. In Ofcom's view, the primary purpose of broadcasting this material was clearly sexual arousal. Given the above, the material was, in Ofcom's view, of a very strong sexual nature. Having assessed these programme’s content and purpose, Ofcom considered that the material broadcast constituted 'adult-sex' material. Its broadcast, without mandatory restricted access, was therefore in breach of Rule 1.18 of the Code.

Ofcom then went on to consider whether the broadcast was also in breach of Rules 2.1 and 2.3 of the Code. In light of Ofcom's view that the programme contained material that constituted 'adult sex material' and was therefore unsuitable for broadcast without mandatory restricted access, the broadcast was clearly capable of causing considerable offence. Ofcom therefore examined the extent to which there were any particular editorial or contextual factors that might have limited the potential for offence. Ofcom noted that the programme was broadcast at 03:35, therefore a long time after the watershed, and that viewers tend to expect stronger sexual material to be shown later at night. Ofcom also took account of the fact that the Tease Me TV 2 channel is 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.

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

Ofcom notes that the Licensee acknowledged that “some of the content was in breach of the Code” and its apology for its broadcast. As part of correspondence prior to Ofcom agreeing to license Playboy to provide the service Tease Me TV 2, we were informed by Playboy that the Licensee would be “acquiring content for it [i.e. this service] from an established producer [Bang Media]” but “the service will be an original service not a simulcast of an existing one”. In addition, Playboy assured Ofcom that it: “will continue to have editorial control and editorial responsibility for the channel”; “will have a second tier of compliance checking”; and “will also have a significant amount of editorial input during pre-production, and throughout the production process as necessary”. Ofcom will expect, in future, Playboy to have in place adequate compliance arrangements.

Breach of Rules 1.18, 2.1 and 2.3

  1.-For example:

• Sanctions decision against Square 1 Management Limited concerning its channel Smile TV, dated 10 July 2008, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/SmileTV.pdf;
• Breach Finding on SportxxxBabes, Ofcom Broadcast Bulletin 115, dated 11 August 2008; http://www.ofcom.org.uk/tv/obb/prog_cb/obb115/;
• Breach Finding on SportxxxBabes, Ofcom Broadcast Bulletin 119, dated 13 October 2008; http://www.ofcom.org.uk/tv/obb/prog_cb/obb119/;
• Sanctions decision against Satellite Entertainment Limited concerning its channel SportxxxBabes, dated 26 August 2008, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/sportxxxbabes.pdf; and
• Sanctions decision against Satellite Entertainment Limited concerning its channel SportxxxBabes, dated 26 August 2008, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/sportxxxbabes.pdf;
• Sanction decision against Playboy TV UK/Benelux Limited concerning its channel Playboy One, dated 2 April 2009, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/playboytv.pdf;
• Breach Finding on Bang Babes licensed by Bang Channels Limited, Broadcast Bulletin 151, http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb151/; and
• Breach Finding on Bang Babes, Broadcast Bulletin 152, http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb152/
• Breach Finding on Bang Babes, Broadcast Bulletin 153, http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb153/
• Breach Finding on Bang Babes, Broadcast Bulletin 157, http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb157/
• Breach Finding on Bang Babes, Broadcast Bulletin 163, http://stakeholders.ofcom.org.uk/binaries/enforcement/broadcast-bulletins/obb163/issue163.pdf

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In Breach

Early Bird
Tease Me TV (Freeview) 3 June 2010, 05:45 to 06.30 and 08:00 to 09:00

Introduction

Earlybird is a televised daytime interactive chat programme broadcast without mandatory restricted access on Tease Me TV. Viewers are invited to contact onscreen female presenters via premium rate telephony services (PRS). The presenters generally dress and behave in a flirtatious manner.

The programme is broadcast on the service Tease Me TV between 05:30 and 09:00. Tease Me TV is located on the Freeview platform on channel number 98. The licence for the service Tease Me TV is held by Bang Media (London) Ltd (“Bang Media”).

Ofcom received two complaints about the above broadcast. The complainants were concerned that the material was too sexual to be broadcast in the daytime and that the presenter’s skimpy outfit and movements were inappropriate for a young audience who might be watching television on this free to air service on the Freeview platform.

The female presenter was wearing a very skimpy string/lace bra that barely covered her nipples, a thong with a string back and stockings and suspenders. During the broadcast the presenter adopted various sexual positions for periods of time including: on her side with her legs open; on her back with her legs open; and, on all fours with her hips raised. While in these positions she repeatedly stroked and touched her body, buttocks and breasts, wiggled and thrust her hips in a sexually provocative way. At one time she also stood up and danced briefly to the camera. On occasions the camera focused in on various parts of her body.

Ofcom therefore requested comments from Bang Media under Rule 1.3 (children must be protected from unsuitable material by appropriate scheduling).

Response

Bang Media said that “Ofcom have previously judged content of this nature broadcast at this time on the Freeview platform to be acceptable”. It said that it did not see “how this broadcast differed from broadcasts previously deemed to be acceptable by Ofcom”.

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 material unsuitable for children should not, in general, be shown before 21:00 or after 05:30.

Ofcom has made clear in numerous previous published findings what sort of material is unsuitable to be included in daytime interactive chat programmes without mandatory restricted access ^(-1-). In the context of daytime interactive chat programmes where the presenters generally dress and behave in a flirtatious matter for extended periods in order to solicit PRS calls, Ofcom underlined that the presenters should not, for example, appear to mimic or simulate sexual acts or behave in an overtly sexual manner and clothing should be appropriate for the time of broadcast. 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.

This broadcast was transmitted during the early morning and featured a female presenter wearing very skimpy lingerie of a sexual nature. The presenter was shown acting in a sexualised way – for example by adopting various sexual positions for periods of time, such as: kneeling on all fours; lying on her front with her legs wide open and bottom raised in the air; and lying on her side and back with her legs wide open (albeit away from camera). While in these positions the presenter repeatedly wiggled or gyrated her buttocks and pelvis as though mimicking sexual activity or excitement. She also licked her lips in a sexualised rather than flirtatious way. In addition, the presenter, on various occasions, stroked particular parts of her body, including her breasts, stomach, thighs and buttocks.

We concluded that the content included in the broadcast as described above and shown on the Tease Me TV service licensed by Bang Media, had no editorial justification since its sole purpose was to elicit PRS calls. In Ofcom’s view the revealing and sexual clothing, repeated actions and sexual positions of the presenter were intended to be sexually provocative in nature and the broadcast of such images was not suitable to promote daytime chat. In light of this behaviour, together with its lack of editorial justification, in Ofcom’s view the material was clearly unsuitable for pre-watershed transmission.This material was broadcast at a time when children may have been watching television, some unaccompanied by an adult. While Ofcom noted that all of the material was broadcast on a channel that is not located directly next to children’s 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.. Taking into account the factors above, Ofcom concluded that the content of this broadcast 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 Bang Media’s assertion that this material was no different to that deemed acceptable by Ofcom in other broadcasts. We noted that the broadcaster did not however refer to any particular broadcasts. Ofcom notes that any material deemed by Ofcom to be acceptable in other broadcasts would not have contained the type of content included in this broadcast, in particular, the skimpy and sexualised outfit and the sexualised positions, movements and gestures of the presenter, Any material broadcast directly after 05:30 should be appropriate and in particular, content broadcast from 06:30 when children might be getting up for school and watching television. In Ofcom's view the very skimpy clothing of the presenter combined with her repeated and sexualised actions and behaviour were intended to be sexually provocative in nature and the broadcast of such images was not suitable to promote daytime chat.

As a result of the serious and repeated nature of the breaches recorded previously against Bang Channels Limited and Bang Media (London) Ltd in Bulletins 157, 158 and 163, Bang Media has already been put on notice that these contraventions of the Code are being considered for statutory sanction. Consideration of this statutory sanction is in addition to the sanction already imposed on Bang Media and published on 29 July 2010 ^(-2-) for serious and repeated breaches of the Code in Bulletins 151, 152 and 153.

Breach of Rule 1.3

Footnotes:

  1.- Tease Me: Earlybird, Tease Me TV (Freeview), 15 February 2010, 05:30 and Tease Me: Earlybird, Tease Me TV (Freeview), 25 January 2010, 07:15 – both Findings in Bulletin 158 at http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb158/;
The Pad, Tease Me, 26 February, 11:45, The Pad, Tease Me 3, 27 February 2010, 11:45, Tease Me: Earlybird, Tease Me TV (Freeview) 26 January 2010, 07:15 - all in Bulletin 157 at http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb157/;
The Pad Tease Me, 6 November 2009, 12:00 to 13:00 and 14:00 to 15:00, Bulletin 152 at http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb152/;
Elite Days, Finding in Bulletin 151 at http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb151/;
Top Shelf TV, Finding in Bulletin 149 at http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb149/;

  2.- See http://stakeholders.ofcom.org.uk/binaries/enforcement/content-sanctions-adjudications/bangchannels.pdf

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In Breach

18 Keen
Tease Me, 10 June 2010, 21:30 to 22:30

Introduction

18 Keen is an adult sex chat television service, owned and operated by Bang Channels Limited (“Bang Channels” or “the Licensee”). The service is available freely without mandatory restricted access on the channel Tease Me (Sky channel number 912). This channel is situated in the 'adult' section of the Sky electronic programme guide ("EPG"). The channel broadcasts programmes after the 21:00 watershed based on interactive 'adult' sex chat services. Viewers are invited to contact onscreen female presenters via premium rate telephony services ("PRS"). The female presenters dress and behave in a sexually provocative way while encouraging viewers to contact the PRS numbers.

Ofcom received a complaint that the content was too sexually explicit to be broadcast at around 21:30. The complainant referred to the underwear the two presenters were wearing and that they were performing sex acts on each other.

Ofcom noted that the broadcast featured two female presenters on an unmade single bed in a bedroom setting. They were both initially wearing bras and knickers and one presenter’s knickers were made of see through material. The presenters removed their bras during their act. At various times, the presenters adopted sexual positions including: on all fours with their bottoms close to camera; lying on their backs with legs open to camera; one presenter between the legs of the other; on their knees with one presenter behind the other one; and one presenter sat over the other presenter’s breasts. While in these positions they rubbed each other’s bare breasts and nipples, thrust and moved their hips in a sexualised manner as if miming intercourse, and spanked and stroked each other’s buttocks. They also licked their fingers and rubbed the inside of their upper thighs in a sexualised way.

Ofcom requested formal 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 response the Licensee said that it was “satisfied that the material broadcast was compliant with the Code” and was consistent with other material that was broadcast on the same evening in the ‘adult’ section of the EPG. It also pointed out that the Code does not prohibit the exposing of breasts at any time, particularly after the watershed.

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 broadcaster’s 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 images in this programme, 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 applied generally accepted standards.

In terms of this broadcast, Ofcom considered the sexual images shown to be strong and capable of causing offence. On a number of occasions the female presenters adopted sexually provocative positions both individually and together and the nature of their joint performance was very sexual. For example, they rubbed and stroked each other’s exposed breasts, spanked each other, one presenter mimed licking the other between the legs and they rubbed the inside of their upper thighs in a sexualised manner.

Ofcom therefore examined the extent to which there were any particular editorial or contextual factors that might have limited the potential for offence. Ofcom noted that this programme was broadcast in the first hour after the watershed, and that viewers tend to expect stronger sexual material to be shown after this time. Ofcom also took account of the fact that the Tease Me channel is 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.

Ofcom 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. On this channel – as with all channels broadcasting without mandatory restricted access – the stronger material should appear later in the schedule. One of the factors Ofcom must take into account when assessing context is the likely expectation of the audience. Here Ofcom believes that viewers of a channel freely available without mandatory restricted access would not expect to see material of such strength broadcast between 21:30 and 22:00.. Ofcom considered that the time of broadcast and the location of the channel were not sufficient to justify the broadcast of sexually provocative behaviour between two female presenters at this time in the schedule.. The material shown was so strongly sexual that we do not consider the broadcaster applied generally acceptable standards.

Ofcom notes the broadcaster’s statement that the Code does not prohibit programmes that contain images of naked breasts regardless of the time of broadcast. The Code does allow for images of nudity to be broadcast both before and after the watershed. But if the images of nudity have the potential to cause offence – as here – they must be justified by the context. In this case, Ofcom considered that the material shown (including the presenters stroking and rubbing each other’s naked breasts) was provided for the purposes of sexual arousal in order to elicit PRS calls. For the reasons set out above, this material was too strong to be shown so soon after the watershed and was clearly not justified by the context.

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

On 29 July 2010 ^(-1-) Bang Channels Limited and Bang Media (London) Ltd were fined £157,250 for serious and repeated breaches of the Code. These breaches had been published in Bulletins 151,152 and 153. As a result of the continued serious and repeated nature of breaches recorded against Bang Channels Limited and Bang Media (London) Ltd in Bulletins 157, 158 and 163, the Licensee has already been put on notice that these further contraventions of the Code are being considered for another statutory sanction.

Breach of Rules 2.1 and 2.3

Footnotes:

  1.- See http://stakeholders.ofcom.org.uk/binaries/enforcement/content-sanctions-adjudications/bangchannels.pdf

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In Breach

Live XXX Babes
Live XXX Babes, 31 March 2010, 22:00 to 23.00

Live XXX Babes
Live XXX Babes, 1 April 2010, 22:00 to 22:24

Sport XXX Babes
Sport XXX Babes, 3 April 2010, 22:00 to 02:00

Northern Birds
Northern Birds, 11 April 2010, 22:30 to 23:00

Sport XXX Babes
Sport XXX Babes, 16 May 2010, 21:00 to 21:30

Sport XXX Babes
Sport XXX Babes, 19 May 2010, 00:00 to 01:00

Introduction

Live XXX Babes , Sports XXX Babes and Northern Birdsare adult sex chat television services. Each service has a separate licence but all three licences are owned and complied by Satellite Entertainment Limited (“SEL” or “the Licensee”). The services are available freely without mandatory restricted access on Sky channel numbers 950 (Live XXX Babes), 945 (Sports XXX Babes) and 954 (Northern Birds). These channels are situated in the 'adult' section of the Sky electronic programme guide ("EPG"). The 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.

As a result of its concerns about compliance in this sector, Ofcom conducts monitoring exercises of daytime and adult sex chat channels.

Live XXX Babes ,(Sky Channel 950) 31 March 2010, 22:00 to 23:00
During this programme, a female presenter was wearing a leather dress that exposed her breasts, a skimpy thong and fishnet stockings. She adopted various sexual positions. These included on all fours with her buttocks to camera and on her back with her legs wide open. While in these positions the presenter carried out a number of sexual acts including miming and simulating masturbation, by rubbing and touching her crotch and anus over her skimpy thong which at times revealed her labial contours. She also licked her fingers and touched around the edges of her labia and pulled on her thong to bunch it into her crotch and reveal her genital contours. At times the camera zoomed in between the presenter’s wide open legs in intrusive detail.

Live XXX Babes, (Sky Channel 950), 1 April 2010, 22:00 to 22:24
During this programme, a female presenter wearing a pink thong and a bra pulled down to reveal her breasts. For the majority of the broadcast the presenter adopted the sexual position of lying on her back with her legs wide open to camera for a prolonged period of time. While in this position she simulated masturbation by severely bunching her thong against her genitals whilst gyrating up and down. The broadcast included close up shots of the presenter’s genital area, with outer labial detail shown, which were massaged and oiled. In addition the presenter positioned herself on all fours and massaged her buttocks thrusting them at the camera for prolonged periods of time and revealing anal detail.

Sport XXX Babes ,(Sky Channel 945) 3 April 2010, 22:00 to 02:00
Between 22:00 and 23:26 and 00:02 to 00:47 this broadcast included a female presenter wearing her hair in pigtails and dressed in a “school uniform”. For the majority of the broadcast she pulled her shirt and bra down to reveal her breasts. At various times, she lifted her mini skirt and adopted sexual positions including on all fours with her buttocks close to camera and lying on her back with her legs wide open to camera. While in these positions she was shown simulating masturbation by repeatedly rubbing her genital and anal area and pulling her thong tightly against her genitals whilst thrusting her hips forward in a sexual manner. The broadcast included repeated close up shots of the presenter’s genital and anal area, with outer labial and anal detail visible.

Following this broadcast, from 23:26 to 00:02, Ofcom noted a blonde presenter wearing a gold thong. For the majority of the broadcast she lay with her legs wide open, gyrated her hips up and down and bunched her thong severely against her genitals simulating masturbation. At one point she squirted oil on her genital area and continued to simulate masturbation rubbing the oil into her upper thighs and outer labia. While on all fours she thrust her buttocks to camera and was seen to simulate masturbation by repeatedly and vigorously pulling on her thong. Throughout the segment, labial and anal detail were visible.

Northern Birds (Sky Channel 954), 11 April 2010, 22:30 to 23:00
During routine monitoring of this channel, Ofcom noted that this broadcast featured a female presenter wearing a black lacy basque. At various times during the broadcast the presenter adopted sexual positions, including lying on her back with her legs wide open to camera and bending over with her buttocks to camera for relatively prolonged periods of time. Whilst in these positions, the presenter repeatedly carried out a number of sexual acts in intrusive detail. These included: vigorously stroking her buttocks and pulling her buttocks apart direct to camera to reveal outer anal detail and labial detail; bunching her thong into her genitals and tugging at it to reveal her outer labia; simulating masturbation by rubbing her outer labia; and touching in and around her crotch area.

Sport XXX Babes, 16 May 2010, 21:00 to 21:30 & Sport XXX Babes, 19 May 2010, 00:00 – 01:00
With reference to these two cases, Ofcom received a complaint about their offensive nature. The complainant expressed concern about the anal and genital detail visible, particularly when shown prior to 22:00.

  Sport XXX Babes, (Sky Channel 945),16 May 2010, 21:00 to 21:30
The presenter was wearing a checked mini skirt which was pulled up around her waist for the majority of the broadcast to reveal a white thong. In the first half of the segment, from 21:00 to 21:30, she positioned herself on all fours with her buttocks upwards. While in this position, she rolled down the top of her thong to half way down her buttocks and thrust her buttocks in a sexual manner so as to mime sexual intercourse. In addition she licked her finger suggestively and inserted her finger into her mouth to suggest a sex act.

After 21:30 Ofcom noted the presenter repeated the same position on all fours but her buttocks were positioned direct to camera and the images were close up and intrusive revealing her outer labia. Whilst in this position she stroked her outer labia and between her buttocks to simulate masturbation, pulled her thong down and into her buttocks to show anal detail and massaged her fingers around the top of her buttocks to suggest a sex act. The presenter also lowered her bra to show her breasts and sat with her legs wide open to camera. In this position she placed spit on her genital area, pulled her thong tightly against her genitals to reveal labial detail and simulated masturbation. She also pulled down her thong low enough to reveal her pubic area and repeatedly placed her hands between her legs.

Sport XXX Babes , (Sky Channel 945),19 May 2010, 00:00 – 01:00
Ofcom noted that the broadcast featured a female presenter wearing a black basque with the top pulled down to reveal her breasts. During the broadcast she adopted various sexual positions for prolonged periods of time, including bending over on all fours with her buttocks to camera and lying on her back with her legs spread wide open to camera. While doing so, the presenter repeatedly pulled her underwear tightly against her genital area, opened her legs to expose labial detail in close up; and positioned her buttocks to camera revealing anal detail.

Ofcom requested formal comments under Code Rules 2.1 (the broadcaster must apply generally accepted standards) and 2.3 (offensive material must be justified by context) from SEL in relation to the following broadcasts:

• Live XXX Babes, (Sky Channel 950), 31 March 2010, 22:00 – 23:00;
• Live XXX Babes, (Sky Channel 950), 1 April 2010, 22:00 to 22:24 ;
• Sport XXX Babes,(Sky Channel 945) 3 April 2010, 22:00 to 02:00 ;
• Northern Birds (Sky Channel 954), 11 April 2010, 22:30 to 23:00 ;
• Sport XXX Babes, (Sky Channel 945) 16 May 2010, 21:00 to 21:30;and
• Sport XXX Babes, (Sky Channel 945), 19 May 2010, 00:00 – 01:00 .

In addition, Ofcom requested formal comments from SEL under Rule 1.6 (the transition to more adult material must not be unduly abrupt at the watershed…the strongest material should appear later in the schedule) as regards Sport XXX Babes, (Sky Channel 945) 16 May 2010, 21:00 to 21:30.
 
Response

Ofcom contacted the Licensee on several occasions to confirm receipt of the requests for formal comments. SEL however did not provide comments to Ofcom. In the absence of any response from the Licensee, Ofcom proceeded to reach a decision on this material against the Code.

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.

Broadcasters are allowed to broadcast after the watershed (and without other access restrictions) material which is of a strong sexual nature as long as it is justified by the context. This requires Ofcom to assess the strength or explicitness of the content and balance 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 broadcaster’s 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.

Live XXX Babes, 31 March 2010, 22:00 – 23:00
Live XXX Babes, 1 April 2010, 22:00 to 22:24
Sport XXX Babes, 3 April 2010, 22:00 to 02:00
Northern Birds, 11 April 2010, 22:30 to 23:00
Sport XXX Babes, 16 May 2010, 21:00 to 21:30
Sport XXX Babes, 19 May 2010, 00:00 to 01:00

Ofcom considered all of the above broadcasts together because four resulted from the same monitoring exercise and all concerned similar issues and similar material broadcast post-watershed. Ofcom examined them in respect of Rules 2.1 and 2.3 of the Code.

In terms of the content of all these broadcasts, Ofcom considered the sexual images shown to be strong and capable of causing offence. During all six broadcasts detailed above, the presenters positioned themselves in front of the camera with legs wide apart and on all fours with buttocks in full view for prolonged periods of time. Given the fact that all presenters pulled their underwear tightly against their genital area so as to “bunch” the material, and the images were sometimes filmed close up, there were numerous occasions when outer labial and anal detail was shown in intrusive detail. In addition, during all broadcasts the presenters in each individual programme appeared to mime masturbation at various points in the broadcasts, by touching around their genital and anal areas and sometimes simulate masturbation by rubbing their underwear vigorously against their genitals and touching or stroking the crotch in a sexual manner.

Ofcom therefore examined the extent to which there were any particular editorial or contextual factors that might have limited the potential for offence. Ofcom noted that five of the six programmes were broadcast after 22:00, therefore after the watershed, and that viewers tend to expect stronger sexual material to be shown later at night. Ofcom also took account of the fact that the channels were 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.

However, in all cases there were prolonged and repeated scenes of a sexual nature, such as miming and simulating masturbation, the adoption of sexual positions and images of the presenters’ outer labial and anal areas, which taken together resulted in material with highly sexualised content. Ofcom considered that the time of broadcast and location of the channel were therefore not sufficient to justify the broadcast of such material. Given the strength of the sexual nature of the content, available on a channel without mandatory restricted access, we considered that the broadcaster did not apply generally acceptable standards and the material was not contextually justified. These broadcasts therefore breached Rules 2.1 and 2.3 of the Code.

Ofcom is concerned in particular, that the broadcast on Sport XXX Babes on 16 May was transmitted from 21:00. This strong sexual content, of an equally similar nature to that shown after 22:00 on the other channels detailed, included the presenter revealing her breasts and genital and anal detail, simulating masturbation and inserting her fingers into her mouth to mime oral sex. Rule 1.6 makes clear that the strongest material should appear later in the schedule and that the transition to more adult material should not be unduly abrupt at the watershed of 21:00. The degree of offence likely to be caused by viewing this material was therefore considered greater than after 22:00 given the insufficient context. Ofcom concluded that this content was clearly not justified by the context and, in addition to breaching generally accepted standards also contravened Rule 1.6.

It is Ofcom’s view that these breaches are serious. In particular, Ofcom is comcerned by the apparent repeated nature of these breaches. Ofcom is therefore putting the Licensee on notice that further repeated contraventions of the Code of a similar nature will be considered for the imposition of a statutory sanction.

Live XXX Babes, 31 March 2010, 22:00 to 23:00: Breach of Rules 2.1 and 2.3
Live XXX Babes, 1 April 2010, 22:00 to 22:24: Breach of Rules 2.1 and 2.3
Sport XXX Babes, 3 April 2010, 22:00 to 02:00: Breach of Rules 2.1 and 2.3
Northern Birds, 11April 2010, 22:30 to 23:00: Breach of Rules 2.1 and 2.3
Sport XXX Babes, 16 May 2010, 21:00 to 21:30: Breach of Rules 1.6, 2.1 and2.3
Sport XXX Babes, 19 May 2010, 00:00 to 01:00: Breach of Rules 2.1 and 2.3

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In Breach

The Naked Office
Virgin 1, 5 June 2010, 20:00

Introduction

Virgin 1 is a general entertainment service broadcasting on cable and satellite platforms. The licence for this service is held by Living TV Group Ltd (“Living TV” or the “Licensee”). The programme, The Naked Office, is a series of programmes in which a business behaviour expert coaches struggling commercial enterprises in an effort to improve their team cohesion and boost their overall commercial performance, the final challenge for the staff being going into work naked. In this particular episode the staff were also asked to have their favourite body part cast in plaster. One of the members of staff chose to have his buttocks cast, and in discussion with a colleague regarding the process involved in making the cast said “if you fucking rip it off, it kills you”.

When viewing the programme as a result of complaints, Ofcom noted this instance of the word “fucking” had not been bleeped in line with other examples of offensive language within the programme. As the programme was broadcast at 20:00, Ofcom requested the broadcaster’s comments under Rule 1.14 (the most offensive language must not be broadcast before the watershed).

Response

Living TV apologised for any offence that may have been caused. It said this was an isolated incident and the result of human error and not a failure of process. The Licensee said that it had robust procedures in place to ensure programmes complied with the Code and that normally they worked successfully. In this case, the content of the programme was fully viewed and complied by a first compliance executive. Usually a second executive then makes further checks to ensure all potentially offensive language has been bleeped or removed. Unfortunately, in this case due to human error the second check did not take place and Living TV said that in this instance the first executive had not instructed a second colleague to check his work, and the use of the most offensive language was missed. The relevant member of staff had now been disciplined. Living TV assured Ofcom that this particular programme in the series had now been complied to ensure adherence with the Code and that any repeats of the programme would be fully compliant.

Decision

Rule 1.14 states that the most offensive language should not be broadcast before the watershed. Ofcom research ^(-1-) indicates that the word “fuck” and its derivatives are an example of the most offensive language.

Ofcom notes the Licensee’s apology and welcomes the prompt action the broadcaster has taken to ensure the programme will comply with the Code in any future broadcast and its assurances about the robustness of its usual compliance processes. However, in this case, this broadcast of the most offensive language was in breach of Rule 1.14 of the Code.

Breach of Rule 1.14

Footnotes:

  1.- Ofcom research publication: Audience attitudes towards offensive language on television and radio at: http://stakeholders.ofcom.org.uk/binaries/research/tv-research/offensive-lang.pdf June 2010, p.92

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In Breach

Provision of recordings
MATV, 5 June 2010, 21:30 and 6 June 2010, 22:00

Introduction

MATV is a news and family entertainment television channel aimed at the Asian community in the UK. Ofcom was contacted by a viewer who complained that MATV presenters had made promotional references to a number of products and services in a programme broadcast on 6 June 2010. Ofcom requested a recording of this programme on 8 June 2010.

Ofcom did not receive a recording. Therefore on 23 June 2010, we repeated our request for the recording. Ofcom was informed that it would be sent within 48 hours.

On 22 June 2010, Ofcom received another complaint of a similar nature about a programme broadcast on MATV on 5 June 2010 and subsequently requested a recording of this programme on 25 June 2010.

Both recordings were provided to Ofcom by the broadcaster on 2 July 2010. However, neither of the recordings had included any sound and therefore Ofcom was unable to consider the complaint.

Under Condition 11 of MATV’s TLCS licence to broadcast, MATV is required to keep recordings of its output in sound and vision for 60 days after transmission. If requested by Ofcom, Condition 11 also requires licensees to provide such recordings to Ofcom "forthwith".

Ofcom asked the broadcaster for its representations on whether it had complied with Licence Condition 11 on two occasions: firstly, on 30 June 2010, with regard to its failure at that time to provide Ofcom with the first recording; and the broadcaster’s comments were again requested on 6 July 2010, when MATV confirmed that it was unable to supply either recording with sound.

Response

When Ofcom notified MATV of the problem with the audio, the broadcaster said that unfortunately, its playout facility, operated by a third party, “had some issue that day as they were moving the play out from one place to another”.

In further correspondence, MATV apologised for the incident and said that “as a corrective step”, it has “now started recording at a 2nd location as well”.

Decision

Despite requesting the first recording on 8 June 2010, Ofcom received no communication from MATV until it contacted the broadcaster on 23 June 2010 to enquire why the recording had not yet been provided. MATV then sought confirmation of the name of the specific channel and then told Ofcom that it would be in receipt of the recording within 48 hours.

However, it took a further seven days and additional contact from Ofcom before both the recordings were received on 2 July 2010. As noted above, the recordings were inadequate since neither recording included any sound.

Ofcom was therefore concerned about MATV’s failure to supply forthwith a recording of the programme broadcast on 6 June 2010 despite reminders from Ofcom, and MATV’s failure to supply recordings with sound.

Further, Ofcom noted that MATV’s response indicated the lack of audio in the recordings was owing to “some issue that day” but as the affected programmes were broadcast on different days, it was apparent to Ofcom that the problem was not confined to just one day.

Ofcom is concerned that it has found MATV in breach of Condition 11 of its licence previously (in Broadcast Bulletin 145 ^(-1-)). Ofcom is therefore now putting MATV on notice that, in the event of any further breaches of this Licence Condition, Ofcom will proceed to considering further regulatory action.

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

Footnotes:

  1.-http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb145/

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