Broadcast Bulletin Issue number 166 27/09/10

Ruhaniat Aur Tib-e-Nabvi, The Ministry, Club Paradiso, Early Bird, Marie Stopes International advertisement & Complaint by Ms K on her own behalf and on behalf of her son (a minor)

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.

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

Ruhaniat Aur Tib-e-Nabvi
Venus TV, 9 September 2009, 12:05 to 13:00

This Review Decision replaces a previous decision published in Ofcom’s Broadcast Bulletin on 25 January 2010.

Summary of Original Decision

Introduction

Venus TV is a general entertainment television channel for the Asian community, broadcasting in English, Urdu, Hindi, Punjabi, Gujarati and Bengali.

Ruhaniat aur Tib-e-Nabviis a daily phone-in programme aimed at the Muslim community. The presenter of the programme normally gives lifestyle advice to members of the public based on practices advocated in the Qu’ran. In this edition, the presenter gave advice to a number of callers about a range of health and diet related issues.

A viewer was concerned the advice given by the presenter in the programme could be potentially dangerous to viewers.

By means of an independent summary translation of the programme, Ofcom identified five excerpts that it considered to amount to medical advice on potentially serious conditions, such as high blood pressure and diabetes. The five excerpts were as follows:

Presenter:       “I tell people in my programme, blood pressure is actually due to constipation. Try to get rid of blood pressure, try to get rid of constipation. Then you will not need to take any tablets. If you try my suggestion – eat gulkand [conserve of roses] continuously – it will work…”

Presenter:       “To control blood pressure she [the caller’s friend] should not eat hot food. Avoid hot food, for example, egg and fish etc. She should avoid these foods.”

Presenter:       “Let me tell you one thing, eating eggs increases your blood pressure. Therefore, I advise to eat eggs made as a halva [Anday Ka Halva/Egg Halva] ”

Presenter:       “ People who have diabetes should not eat roti [chapati] for at least three months. Instead feed them gram flour roti [chapati] . Do not give them rice, potato, cauliflower, okra etc to eat. They should also avoid drinking tea… Diabetes is usually a disease caused by dryness and hotness. Those people who get diabetes face a problem of dryness and hotness.”

Presenter :      “ Whenever blood pressure appears in any part of your body you should drink Shikangbeen [lemon drink] … When you drink it for three to five days you will feel that your high blood pressure problem has been controlled. If you drink it with faith in God, God will solve this problem for you… After three months of drinking this drink, many of my friends called me to tell me that their blood pressure problems had been solved, along with controlling their diet as advised.”

Ofcom therefore asked Venus TV Limited (“Venus TV”) for its comments with regard to Rule 2.1 of the Code, which states:

“Generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material.”

Response

Venus TV stated that the programme gives advice to the Muslim community based on what is said in the Holy Qu’ran and teachings of the Prophet Mohammed. It explained that “Tib-al Nabvi” means practices and sayings of Prophet Muhammad on hygiene, sanitation and treatment of diseases and is traditionally followed by Muslims. It said that it did not consider the programme to be harmful or offensive to the Muslim community or any other religious community.

The broadcaster continued that the presenter, Allama Qadri, is a qualified scholar of the Islamic religion, is well known in the Asian community and has 40 years of experience in natural remedies. Venus TV stated that the products that the presenter advised viewers to use were all natural and fresh, and available in the high street. It also said that viewers were advised to take the products for a few days only.

The broadcaster stated that the programme Ruhaniat and Tib-e-Nabvi does apply protections for members of the public as it runs a continuous scroll during the programme which states, “If you have any health problems please contact your GP”. Venus TV supplied Ofcom with evidence that other programmes in this series, broadcast on and around the same date, carried the scroll (which was in English). Further, Venus stated that the presenter verbally advised callers to contact their doctor. The broadcaster said that the scroll was not included on this occasion due to human error.

Original Decision

In its original decision, which cited the excerpts from the programme listed above, Ofcom recognised that Ruhaniat aur Tib-e-Nabvi is a programme which provides advice to the Muslim community based on practices of the Qu’ran. Ofcom also noted from the broadcaster’s comments that the presenter is experienced and well known in the Asian community and the title of the programme would have provided an indication to viewers as to the nature of the programme and the advice it included.

Ofcom noted the broadcaster’s assertion that the programme normally includes a scroll on the bottom of the screen which states that callers with health problems should contact their doctor. It also noted that omission of the scroll on this occasion was due to human error. The independent translator commissioned by Ofcom to review the programme confirmed that no such information was provided during this particular programme, either by the presenter or by the use of a scroll.

Therefore it was Ofcom’s view that the programme allowed this presenter - who was not a qualified medical practitioner - to give unsubstantiated and potentially dangerous medical advice about high blood pressure and diabetes, without any reference to the need to seek help from a qualified doctor. Ofcom concluded that as a result of watching this broadcast, there was an appreciable risk that viewers who suffer from such serious medical conditions might forego or delay orthodox medical treatment in favour of the advice given during the programme. This in turn could have led to significant consequences for their health.

Ofcom concluded that this programme failed to apply generally accepted standards by not providing adequate protection to viewers from material which had a potential to cause vulnerable members of the audience serious harm. Ofcom found that the programme was in breach of Rule 2.1 of the Code and published its decision in the Broadcast Bulletin on 25 January 2010.

Request for Review

Venus TV submitted a request for a review of Ofcom’s decision, on the grounds that:

i) it was materially flawed because the advice given by the programme’s host related only to diet and nutrition and was described incorrectly as “medical advice”;

ii) the advice given in the programme did not constitute claims that either the host or the use of natural foods could cure illnesses, but rather that such foods could prevent or control them;

iii) the presenter of the programme did not actively say that viewers should not contact their doctors for serious conditions; and

iv) there was an implied understanding on viewers’ parts that the dietary solutions were complementary to any medication.

Venus TV also argued that the decision was not proportionate, because the absence of a scroll urging viewers to contact a health professional was a rare omission due to a member of technical staff who “simply forgot” to turn on the scroll on this occasion. Further, it argued that the evidence it had provided to show that the scroll was present on several other occasions was not given due weight by Ofcom.

Venus TV was also of the view that the decision was discriminatory in comparison to Ofcom’s decision on a BBC programme After You’ve Gone (-1-) . An episode of this comedy series, broadcast at 19:30 on BBC1, included a scene in which a character took a large quantity of prescription painkillers. In its finding, Ofcom acknowledged that there was a risk of harm to younger children watching the programme but, on balance, decided that the case was resolved. Ofcom reached this decision on the basis of the BBC’s recognition that the content had not been appropriately scheduled for children, and its assurance that the programme would only be repeated in a later slot of 20:30.

Venus TV argued that, in its case, its assurance that the scroll would always appear in future broadcasts of the programme had not been accepted by Ofcom as grounds to resolve the matter in the same way, leading Venus TV to conclude that it was being treated differently to the BBC because it was a minority channel.

A member of the Ofcom Executive who had not been involved in the original decision considered this request for review in accordance with Ofcom’s Procedures for the handling of broadcasting standards or other licence-related cases (-2-) (the “Procedures”).

The Executive decided that a new, independent translation of the whole programme was necessary to assess the request for review. This was commissioned and Venus TV was given an opportunity to comment on it. Venus TV reiterated its desire for Ofcom’s decision to be reviewed.

Having considered the new, independent translation and the request for review, the Executive decided that Venus TV had put forward a case that the decision was materially flawed and that there was a reasonable prospect of success on the grounds that three of the five programme excerpts on which the decision was based did not appear to suggest “cures” for the medical conditions in question and that, while the first and fifth excerpts could be understood as implying cures, the excerpts did not provide clear evidence of potentially harmful advice. Rather, they could be perceived as generic dietary advice.

Additionally, it was decided that the Committee should consider whether the original decision was potentially disproportionate on the basis of the particular evidence on which it relied – namely the five excerpts (see Introduction, above) and in light of Venus TV’s explanation that the absence of a scroll (the measure usually taken by Venus TV to provide adequate protection for the audience from potential harm to their health) was the result of human error.

The case was therefore referred to the Broadcasting Review Committee (-3-) (“the Committee”), together with the full independent translation of the programme.

Review Decision

The first decision for the Committee was whether or not Venus TV had demonstrated that there were sufficient grounds to review the original decision of 25 January 2010. In the light of the new, independent translation, the Committee assessed that it had. It was therefore appropriate for the Committee to reconsider the case having regard to all of the submissions made throughout the process and to the new, independent translation and with specific regard to the grounds for review laid out by the complainant in the review request (see above).

The Committee then went on to consider whether or not the broadcast complained of had breached Rule 2.1 of the Code. This rule reflects one of Ofcom’s key standards objectives, namely to ensure that broadcasters apply “generally accepted standards” to the content of television programmes so as to provide adequate protection from the inclusion of offensive or harmful material.

Programmes that provide lifestyle and health advice about potentially serious medical conditions, can be broadcast providing that adequate protection is provided for members of the public so as to comply with the Code.

In this instance, the Committee first considered the context in which this programme was broadcast, noting that Venus TV had explained that the programme “…was for the Muslim community and was to remind and guide them to how simple daily things were still the best along with their month of fasting (Ramadan) for a healthy life”.

The Committee then turned to the question of the nature of the advice given in the programme and whether it had the potential to cause harm, in particular to viewers’ health by providing misleading or unsubstantiated advice.

Having considered the full independent translation of the programme, the Committee acknowledged that much of the advice given within the programme could be described as generic dietary advice, where less serious conditions were referred to and a variety of general nutrition advice was given as a means of alleviating particular symptoms. For example:

To a caller who had experienced stomach pain for a year and a half, the presenter diagnosed that the problem was due to “gastric bloating” and suggested:

“Just eat curry made with ginger and black pepper ... and don’t put anything in there: red chillies, green chillies, stop all these chillies ... after this, you can, if you don’t eat curry that’s good, you should eat your chapatti with just milk ... and if you try then you can also have this experiment that you eat potatoes, cauliflower, bahmia [okra] and rice, stop all of them”.

When discussing fasting more generally, the presenter stated:

“As we maintain this topic and both these things in view in our programme, of both these things we will first tell you what food you will eat and what things you will avoid and then we tell you how great spiritual powers are obtained in it to perform any of the duties.”

The Committee therefore considered that the programme was intended to an extent to provide dietary advice to those undertaking fasting during Ramadan, and to encourage and offer spiritual support to practising Muslims at this time.

The Committee also acknowledged that it was possible for dietary advice of this nature to complement conventional medicine. As such, the Committee was of the view that it was unlikely that any potential harm could be caused to viewers by these particular parts of the programme, which did not therefore raise issues under Rule 2.1 of the Code.

However, the Committee also noted that the full independent translation contained several references to serious medical conditions, some of which had not been included within the excerpts on which Ofcom’s original decision relied. The Committee focused on the following sections of the programme in particular:

1)   A caller asked for advice about diabetes, specifically asking “what could be done to prevent it so that diabetes doesn’t occur?” The presenter gave advice on foods to avoid and stated that:

“Diabetes is an illness of dryness and heat, whoever suffers from this, if you observe them you will see that there is a major element of dryness and heat in them. I have by the Grace of Allah many people whom we have found and told them, they were cured through food and are normal. Their blood sugar level which used to be above twenty is now five, five and a half.”

2)   A little later, the presenter told the same caller:

“…And if one can control food, then a dangerous illness such as diabetes can be rid of forever on the condition that they are mentally well.”

3)   Another caller was concerned about her husband’s frequent sneezing. The presenter diagnosed this condition as “influenza” and, when told by the caller that influenza had been ruled out by doctors, replied “The real problem is that whatever name you give it, this is in reality influenza”. He then stated:

“To treat this fully or to cure this to completely rid of this contact me on this phone and I will advise you to avoid a few things, advise your husband and advise about eating a few things, surely this illness will go away.”

4)   Another caller asked about blood pressure, to which the presenter responded:

“For blood pressure we advise that whenever this appears in any part of the body then you drink lemon drink straight away. Drink it for three or four days and you yourself will notice that your high blood pressure, Allah willing, this will make a difference and Allah will cure you if you keep drinking with faith ... Many friends called me after drinking this for three months. We didn’t have an illness such as blood pressure after continuing to act on this procedure. On condition that they kept concentrating on those procedures and acting on the things that we advised them of that you must not eat these things and you can eat these things. They kept acting on this and Allah rid them of that illness completely.”

5)   One caller had been in touch with the presenter previously, and had been advised to eat gulkand (sweet preserve of rose petals). He stated that this “did not bring any relief to me at all” and the presenter made further suggestions involving hot milk. He then stated: “if God wishes, your constipation will go away with it”. The caller pointed out that he had high blood pressure and asked it he could “still eat it like that”. The presenter said:

“Blood pressure has nothing to do with it ... blood pressure ... on the contrary, I usually say in my programmes that the reality of high blood pressure is that it is caused by constipation.”

6)   The caller pointed out that he took tablets every day for his blood pressure problem and the presenter replied:

“Try first, and when you get rid of your constipation, then see if you feel the need to take a tablet every day or not. You will see the difference. ”

7)   Another caller wanted to discuss his mother’s back pain. He explained that:

            “An injection was administered in her back and she is taking the rest of the pain killers ... She also has high blood pressure as well. So is there any remedy...?”

      The presenter responded:

“The discs, I usually say that I don’t know, it may be in the doctor’s books but it is not in our books ... there is a muscle, which we call nerves, [Allah] created such a nerve so that the discs cannot be damaged ... So by taking injections or eating such things which create wind ... We continue on one sort of food for many years that cause us to feel so much pain that the doctors have no other words to say except that ‘your discs are damaged’.”

The Committee considered that these examples clearly contained references to serious medical conditions (diabetes, blood pressure and spinal disc problems). The nature of the advice given within these examples was therefore particularly significant in terms of the potential for the programme to have caused harm to the audience.

As stated above, in circumstances where a programme provides health advice that may include references to potentially serious medical conditions, the Code requires that the broadcaster applies “generally accepted standards” to provide adequate protection from harmful material. The purpose of this requirement is to mitigate any risk that viewers who suffer from such conditions might forego or delay orthodox medical treatment in favour of the advice given during the programme, with consequent harm caused to their health.

In this case, the Committee concluded that the examples above referring to serious medical conditions appeared to go further than simply providing generic dietary or nutrition advice. Instead the examples demonstrated instances where the presenter had directly claimed and/or implied that such conditions could be cured or alleviated with particular foods or drinks, such as in example 1, above: “…they were cured through food and are normal.” The Committee noted that the word “cure” was not used in every instance. However, it was of the view that the repeated use of other phrases such as “can be rid of forever” (example 2); “to completely rid of this” (example 3); and “..didn’t have an illness such as blood pressure after continuing to act on this procedure” (example 4) were likely to have been taken to mean “cure” by viewers.

Moreover, the Committee noted that some of the references to conventional medicine appeared to disparage it, for instance in example 7: “We continue on one sort of food for many years that cause us to feel so much pain that the doctors have no other words to say except that ‘your discs are damaged’.” There were also examples of the presenter suggesting that callers had been misdiagnosed by their doctor, such as in example 3: “The real problem is that whatever name you give it, this is in reality influenza”. The Committee was particularly concerned by instances where the presenter stated that conventional treatments prescribed to them could be harming them (for example: taking injections in the case of back problems “caused wind” (example 7)or could be unnecessary (for example taking tablets in the case of blood pressure, “then see if you feel the need to take a tablet every day” (example 6)).

In the Committee’s view, it was also important to take into account the status of the presenter, an Islamic scholar, which appeared high in relation to the callers (through the use of terms of respect on their part and a more familiar form of address on his part). The Committee considered this was a significant factor in terms of the programme’s potential for harm, in that viewers were more likely to defer to the presenter’s advice.

The Committee considered that there was the potential for the advice given in the programme to discourage viewers from seeking conventional medical treatment for these potentially serious medical conditions, in favour of the presenter’s suggestions. The Committee therefore concluded that the programme’s advice had the potential to cause harm.

It then turned its attention to whether the original decision had been proportionate in finding the programme in breach of Rule 2.1, taking into account Venus TV’s submissions to date.

In particular, the Committee considered what steps the broadcaster had taken to provide the audience with adequate protection from harm, as required by Rule 2.1. The Committee noted that a scroll was normally included in broadcasts of this programme reminding viewers with health problems to contact their GP. The Committee considered that such a scroll may have offered a counterbalance to the messages given by the presenter and may therefore have provided protection against potential harm, had it been included in this particular broadcast. However, without the scroll, there was no other sufficient protection for the audience from the potentially harmful advice about serious medical conditions. In particular, the Committee noted that on no occasion did the presenter verbally advise viewers to contact their doctor, as Venus had said was the case.

The Committee acknowledged that Venus TV had explained the absence of the scroll in this case as the result of human error, and took into account the broadcaster’s assurance that greater care would be taken in future to ensure that this scroll would be included. However, the Committee was concerned that Venus TV had given no explanation of the measures it had taken or was intending to take to ensure future compliance, for example by means of improved procedures or technical processes.

The Committee considered whether, in reaching the original decision, Ofcom was, as alleged by Venus TV in its request for review, discriminating against Venus TV, when compared to the case of the BBC programme After You’ve Gone (-4-). In that case Ofcom had resolved the issue following assurances from the broadcaster. The Committee noted that, in that case, the BBC had itself acknowledged that the programme had been scheduled inappropriately. Further, the BBC had given a specific guarantee (as opposed to a general assurance) - namely that it would only repeat the programme in a later timeslot.

In addition, the Committee considered that After You’ve Gone was a comedy programme, rather than a factual, advisory programme as in the case of the broadcast by Venus TV. Taking into account the significant contextual differences between these two programme genres, the Committee did not consider the cases to be comparable. In the Committee’s view, the potential for harm was much greater in the Venus TV case, compared to the BBC case cited. Nor did it find any evidence to suggest that Venus TV had been discriminated against by Ofcom.

In light of the nature of the potential harm the Committee had identified, as set out above, it decided it was proportionate in this instance to record a breach of the Code. The Committee therefore found that this broadcast of Ruhaniat aur Tib-e-Nabvi was in breach of Rule 2.1 of the Code.

Breach of Rule 2.1

Footnotes:

  1.-http://stakeholders.ofcom.org.uk/binaries/enforcement/broadcast-bulletins/obb121/issue121.pdf

  2.-http://stakeholders.ofcom.org.uk/broadcasting/guidance/complaints-sanctions/standards/

  3.- 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.

  4.-http://stakeholders.ofcom.org.uk/binaries/enforcement/broadcast-bulletins/obb121/issue121.pdf

In Breach

The Ministry
BEN TV, 3 July 2010, 11:00 to 11:30

Introduction

BEN TV describes itself as a “black oriented, urban, diverse and cosmopolitan family channel” which broadcasts entertainment and news programmes to Europe and North Africa. The licence for Ben TV is held by Greener Technology Limited (“the Licensee”).

The Ministry was a religious programme broadcast on BEN TV in which viewers phoned in to seek healing and prayers about a range of personal matters including their children’s physical and mental health. It featured a visiting pastor, speaking in Twi (a Ghanaian dialect), who delivered his guidance in a prophetic style. To assist the pastor and the callers a woman sat beside him and translated his comments into English.

A caller from Italy asked the pastor to pray for her two daughters who had headaches and stomach pain. The pastor offered his prayers and asked the caller if she knew someone called Ama. The caller confirmed there was an Ama in her family to which the pastor replied (in translation from the original Twi):

“In the spirits I see you standing beside someone called Ama…you are a crying woman. If you don’t pray, by the end of December, the Ama you know in your family will die…”

In the same programme, a caller from Germany asked the pastor to pray for her 13 year old son who was “a bit delayed in his talking and all the activities he performs”. During the course of the conversation that followed the pastor asked the caller if she knew someone called “Serwaa”.

The caller confirmed “Serwaa” was her daughter, to which the pastor replied (in translation from the original Twi):

“If you don’t pray for her, exactly one month from today she will die. A demon will go and hit her heart so she will get a heart attack, the incident would have occurred exactly one month from today but because you have called we refuse it in Jesus’ name. May God touch her. They are looking for someone called Serwaa to be used as a sacrifice for a river located in Asante Bekwai, in Mampong (-1-). There is a river lying there and they want someone called Serwaa to be sacrificed. We refuse it. Do three days of fasting.”

Ofcom received a complaint from a viewer who said he was shocked by the pastor’s comments, and suggested they were not acceptable and “downright wicked” because the pastor was informing parents that their children would die if the parents did not pray.

The broadcaster was asked to provide comments with respect to the following Rules:

  • Rule 2.1:    broadcasters must apply generally accepted standards to provide adequate protection for members of the public from the inclusion of harmful material; and
  • Rule 4.6:    religious programmes must not improperly exploit any susceptibilities of the audience.     

Response

In response the broadcaster explained that the pastor was a visiting preacher from Ghana who had not been properly briefed about the requirements of the Code before he went on air. The pastor was preaching in a “prophetic style” which was common “in their churches”.

Ben TV stated that in future - to ensure similar material was not broadcast again - it would ensure that all pastors or ministries delivering prophetic content on air would be advised before broadcast of the Code rules and they would be required to sign compliance agreements.

In addition the broadcaster stated that as soon as Ofcom had notified them of the complaint an extensive on-air apology, delivered by a senior pastor, was transmitted to viewers on 8 July 2010. The apology explained that the statement was made by a visiting pastor and whilst it was “misconstrued” it was also “highly regrettable”.

The broadcaster offered its “sincerest” apologies to viewers for the harm or offence the material may have caused.

Decision

In reaching this decision Ofcom has considered the fact that broadcasters have a right to freedom of expression which gives the broadcaster a right to transmit and the audience a right to receive creative material, information and ideas without interference from a public body, but subject to restrictions prescribed by law and necessary in a democratic society. Although broadcasters and viewers have this right, broadcasters must therefore ensure that the material they transmit is in accordance with the general law and the Code.

Rule 4.6

Ofcom is required by the Act to set standards to ensure that religious programmes protect listeners and viewers from the failure of a proper degree of responsibility and improper exploitation. In particular, section 319(6)(a) states that “any improper exploitation of any susceptibilities of the audience for such a [religious] programme” should be avoided. This is reflected in Rule 4.6 of the Code which aims to ensure that broadcasters do not exploit the audience at a time when they are potentially vunerable. This approach is supported by Ofcom’s research in this area which is in the Guidance to this Rule.

“Respondents to Ofcom research on religious programmes believe that all people are susceptible at one time or another. There are times when it will be clear to the broadcaster that they are soliciting an actual response from their audience. At these times broadcasters need to take care and recognising the possible risk to audience members particularly the vulnerable.”

Ofcom noted that in both of the examples set out above, the pastor stated that specific members of each callers’ family would die if the caller did not pray for the individual. In the second example, the pastor seemed to forecast that the caller’s daughter would be saved from being sacrificed in a river if the caller prayed for her. It was of particular concern to Ofcom that the pastor was therefore implying that it was only because the viewer had telephoned the programme that a personal catastrophe had been avoided. It is Ofcom’s view that this was improper exploitation of the audience and therefore in breach of Rule 4.6 and unacceptable.

Rule 2.1

Rule 2.1 requires that broadcasters apply generally accepted standards to provide protection for members of the public from the inclusion of harmful or offensive material.

Ofcom noted that in the response from the broadcaster, the “prophetic style” of ministry, where a pastor foretells future events (as demonstrated in this programme), was common “in their churches”. However, while mindful of the range of styles and modes of worship practised within different traditions, Ofcom is of the view that forecasts or claims to viewers or listeners of a specific forthcoming death or other dire event should be excluded from religious programming, however earnestly believed in particular churches. To encourage any form of religious observance through such warnings carries serious risks of distress, harm and offence and improper exploitation of viewers. In these circumstances - as in this case - broadcasters do not provide adequate protection for members of the public from harmful and/or offensive material, and fail to apply generally accepted standards in accordance with the requirements of Rule 2.1.

Ofcom welcomes the broadcaster’s on-air apology and acknowledgement that, although viewers can continue to seek this style of religious ministry in a church, when broadcast it must comply with the Code.

It is Ofcom’s view that this is a serious breach of the Code and we would urge other religious licensees considering broadcasting content of a similar nature to take careful note of this breach finding.

Breach of Rules 2.1 and 4.6

Footnotes:

  1.- Mampong is a district of Ghana in the Ashanti region.

In Breach

Club Paradiso
Club Paradiso, 24/25 June 2010, 00:15 to 00:45

Introduction

Club Paradiso is a daytime and adult sex chat television service broadcast under a licence held by Chat Central Limited (“Chat Central” or “the Licensee”).The service is available freely without mandatory restricted access on Sky channel number 966. This channel is situated in the 'adult' section of the Sky electronic programme guide ("EPG"). The channel broadcasts chat and teleshopping services during the daytime, and 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 flirtatious way during the day and more sexually provocative way after the watershed while encouraging viewers to contact the PRS numbers.

Ofcom received a complaint which said that this broadcast was too explicit and included sexual activity between a male and female presenter including simulated or mimed oral sex, sexual intercourse and other sexually provocative acts.

Ofcom noted that between 00:15 and 00:45, the broadcast featured a male as well as a female presenter. The male was wearing underpants and the female fishnet stockings and a black thong. During the broadcast the female presenter adopted various sexual positions for relatively prolonged periods of time, including on her back with her legs apart, on all fours with buttocks to camera and sat on top of and astride the male presenter’s chest. The male presenter also adopted various positions, which included kneeling with his crotch by the female presenter’s mouth, kneeling behind the female presenter whilst she was on all fours and lying on his back while under the female presenter. While in these positions, the female and male mimed oral sex on each other, they both gyrated their hips miming sexual intercourse, the male squirted white lotion on the female’s buttocks and rubbed it in, and the male licked the female’s breasts and nipples. Furthermore the male stroked and gently spanked the female’s body and buttocks. At times the squirted lotion was left on the female’s buttocks for a period of time. While adopting these positions or engaging in these activities, neither presenter touched the other’s genital area.

Ofcom requested formal comments from Club Paradiso 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

Club Paradiso said that it decided to run a section of programming with both male and female presenters on a trial and one off basis. This trial took place midweek and well past the watershed and the presenters kept a safe distance between themselves with no sexual touching of the genital area. It said that the material was not of a strong sexual nature, did not constitute explicit material and did not go beyond generally accepted standards. Club Paradiso said it did not intend to push any boundaries of acceptability and apologised if Ofcom felt this was the case. The Licensee said it was keen to ensure that its output adhered to Ofcom’s Code Rules.

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 strong sexual nature, including scenes of simulated and mimed sexual activity. For example, during the broadcast the male presenter mimed sexual intercourse with the female and they both mimicked the performance of oral sex on each other, The female presenter adopted various sexual positions including astride the male presenter’s chest near his face. In addition, the white lotion used as a prop in the performance was squirted onto and allowed to remain on the female presenter’s buttocks, and the male licked the female presenter’s breasts and nipples in sexual and intimate manner. Even though neither presenter directly touched the other’s genital area, the performance and provocative actions of both presenters were clearly suggestive of various sexual acts. Ofcom took account of the fact that the sequences were, in some cases, relatively prolonged and repeated throughout the 30 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 strong sexual nature. Having assessed this programme’s content and purpose, Ofcom considered that this content 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 00:15, 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 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 intimacy and the strong sexual nature of the performance (for the purpose of sexual arousal), the time of broadcast and location of the channel were not sufficient to justify the broadcast of the material. The material shown was so strongly sexual that it would have exceeded the likely expectation of the vast majority of the audience. Ofcom concluded that the content was clearly not justified by the context and was in breach of generally accepted standards and in breach of Rules 2.1 and 2.3.

Ofcom welcomed the Licensee’s apologies and confirmation it was keen to adhere to the Code and put in place new procedures if necessary. It also noted the broadcaster’s statements that this was a trial broadcast piece which has not been repeated, and that its record of compliance until now has been good. However, in Ofcom’s opinion, the content of this programme exceeded that which should be broadcast free to air without mandatory restricted access and there was a clear breach of Rules 1.18, 2.1 and 2.3 of the Code.

Ofcom has provided a considerable amount of guidance to adult sex chat broadcasters about what constitutes ‘adult sex material’ and what is acceptable under the Code. These broadcasters need to take particular care when they feature more than one presenter on screen and the presenters are or appear to be intimate with each other in a sexual manner.

Breach of Rules 1.18, 2.1 and 2.3

Footnotes:

  1.- For example:

In Breach

Early Bird
Tease Me TV (Freeview), 3 August 2010, 08:00 to 09:00

Introduction

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

Ofcom received a complaint from a viewer about this broadcast. The complainant was a parent of young children and was concerned “that during the morning until 9am the Early Bird digital channel is broadcasting sexually explicit television”. The complainant said that the material was broadcast at “a time when many young children watch television, before school and in the holidays and the channel is easily accessible”.

The Licensee provided a recording. Ofcom noted that the female presenter was wearing a revealing red lace bra and thong, red fish net stocking and suspenders, and red stilettos. During the broadcast the presenter adopted certain positions including lying on her side, back and front with her legs wide open, lying on her side with one leg raised in the air, and on all fours with her hips and buttocks raised. While in these positions the presenter repeatedly: stroked and touched her body including her crotch area, legs and breasts; moved and gyrated her hips in a sexually provocative way; and lightly jiggled her breasts. The presenter was also shown licking her lips and showing her tongue to reveal a tongue stud. A number of times during the broadcast the camera moved up and down the presenter’s body so that her covered breasts were shown in close up.

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

Response

Ofcom formally requested comments from Bang Media on a number of occasions. Bang Media did not provide any comments. In the absence of any response from the Licensee, Ofcom proceeded to reach a decision on this material against 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. 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 sexual positions for prolonged periods of time, such as: lying on her side and back with her legs wide open or in the air (albeit away from camera) and kneeling on all fours with her hips and buttocks raised in the air. While in these positions the presenter repeatedly mimicked sexual activity by moving and gyrating her hips in a sexual manner and her breasts were shown in close up. The presenter also repeatedly stroked her breasts and crotch area and licked her lips in a sexualised rather than flirtatious way.

Ofcom concluded that the content included in the broadcast as described above had no editorial justification since its sole purpose was to elicit PRS calls. In Ofcom’s view, the revealing and sexual clothing, and 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 children.

Ofcom went on to consider whether this material was appropriately scheduled. Ofcom took into account that this material was broadcast from 08:00 in the morning and therefore at a time when children may have been in the audiance, some unaccompanied by an adult. While Ofcom noted that 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. 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 content of the 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.

On 29 July 2010 Ofcom fined Bang Media (London) Limited and Bang Channels Limited a total of £157,250 for serious and repeated breaches of the Code as regards the broadcast of programmes between June 2009 and November 2009, and for breaches of Licence Conditions.

In addition, as a result of the serious and repeated nature of breaches recorded previously against Bang Channels Limited and Bang Media (London) Ltd in Bulletins 157, 158, 163 and 165, Bang Media has already been put on notice that these contraventions of the Code are being considered for further statutory sanction.

Breach of Rule 1.3

Footnotes:

  1.- Earlybird, Tease Me TV, 3 June 2010, 05:45 and 08:00, Bulletin 164 at http://stakeholders.ofcom.org.uk/binaries/enforcement/broadcast-bulletins/obb164/issue164.pdf; Earlybird, Tease Me TV, 30 January, 20 March, 27 April 2010 and Earlybird, Tease Me, 21 April 2010 – all Findings in Bulletin 163 at http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb163/; 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/;

In Breach

Early Bird
Tease Me TV (Freeview), 15 July 2010, 08:30 to 09:00

Introduction

Early Bird 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. Tease Me TV is a daytime chat channel available from 05:30 until 09:00 on Freeview. The programming is broadcast without mandatory restricted access. The licence for the service Tease Me TV is held by Bang Media (London) Ltd (“Bang Media”).

Condition 11 of Bang Media’s licence states that the Licensee must make and retain a recording of all its programmes for a period of 60 days from broadcast, and at Ofcom’s request must produce a recording “forthwith”. Ofcom has made clear that recordings “must be of a standard and in a format which allows Ofcom to view the material as broadcast.”

Ofcom received one complaint about alleged inappropriate adult content between 08:30 and 09:00. Ofcom requested a recording of that material from Bang Media.

Response

Between 20 July and 25 August 2010 Ofcom asked Bang Media on several occasions and set various deadlines to provide a recording of the programme. In correspondence Bang Media stated that it was having difficulty in retrieving the material Ofcom had requested. The Licensee did not provide a recording. Ofcom therefore asked the Licensee for formal comments on its compliance with Condition 11 of its licence, and in particular the obligation to provide Ofcom with a copy of its output “forthwith” on request. Bang Media did not provide any comments in response.

Decision

The failure by Bang Media to supply the recording in this instance is a serious and significant breach of Condition 11 (Retention and production of recordings) of its licence to broadcast. This breach will be held on record.

On 29 July 2010 Ofcom fined Bang Media (London) Limited and Bang Channels Limited a total of £157,250 for serious and repeated breaches of the Code as regards the broadcast of programmes between June 2009 and November 2009, and for breaches of Licence Conditions. In addition, as a result of the serious and repeated nature of breaches recorded previously against Bang Channels Limited and Bang Media (London) Ltd in Bulletins 157, 158, 163 and 165, Bang Media has already been put on notice that these contraventions of the Code are being considered for further statutory sanction.

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

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