Broadcast Bulletin Issue number 168 25/10/10
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.
TV8, 29 April 2010, 10:00
TV8 is a Swedish language channel licensed by Ofcom that is controlled and complied by Viasat Broadcasting UK Limited (“Viasat”). Viasat holds 30 Ofcom licences for separate television channels, which broadcast from the United Kingdom to various Scandinavian countries, including Sweden. The Viasat compliance department is based in the UK and manages compliance for all these licensees centrally. TV8 is not on the Sky Electronic Programme Guide and cannot be received in the UK without specialised satellite equipment.
Ringoling is a Call TV quiz service on TV8. In a competition called “Triangle”, a large triangle appeared on screen. The triangle contained what appeared to be 12 smaller triangles, eight of which contained a number. The following question was screened throughout the competition:
“What is the total sum of all numbers in the triangles?”
The presenter encouraged viewers to call a premium rate telephone number, at a cost of 9.90 krona (£0.85) per call, or send a premium rate text, at a cost of 20kr (£1.75) each, for a chance to enter the competition. After taking 84 entrants to air, who did not give the correct answer, he gave viewers the following clue:
“The correct answer is an odd number between five hundred and fifteen and five hundred and nineteen.”
The next entrant put on air gave the required answer (517). The presenter then revealed how the answer had been arrived at. He pointed out 21 different triangles, each of which:
- was a triangle, or combination of triangles, from the 12 smaller triangles that had been shown throughout the competition; and
- contained at least one number.
A viewer was concerned that the presenter had not included all the possible triangles (comprising single triangles and combinations of triangles) that contained at least one number, when calculating the answer.
Further, Ofcom noted that at least two triangles (formed from combinations of other triangles) contained numbers, but had not been identified and revealed by the presenter. The numbers they contained did not appear to have been included in the broadcaster’s calculation of the required answer (517). Ofcom was concerned that this required answer was therefore incorrect.
Rule 2.13 of the Code requires that “broadcast competitions … must be conducted fairly.”
With specific regard to this rule, we asked Viasat to detail the methodology it had applied in arriving at the answer, 517.
Viasat said that the objective of the competition was “to pinpoint the numbers contained within the complete triangles” (Ofcom’s emphasis) and then add them up. It stated that the competition was therefore “based on mathematics”. It had only one possible solution and the methodology was therefore as described in the programme. Viasat provided Ofcom with printed copies of the 21 triangles (as displayed on screen at the end of the competition), which contained the numbers that had contributed to the required answer, 517.
It was still unclear to Ofcom, from the printed copies of the 21 triangles, how the broadcaster had arrived at the required answer of 517. In particular, Ofcom noted that there were other triangles containing numbers, which did not appear to have been included. Viasat therefore provided further information on the methodology it had applied. It stated that the additional triangles Ofcom had identified were not “ complete triangles” (Ofcom’s emphasis).
On close inspection of the printed copies, Ofcom noted that two of the lines used in the construction of the original 12 small triangles did not actually join the sides of the large triangle in which they appeared. Very small gaps had been left between one end of each of these lines and the sides of the large triangle. Four of the 12 triangles were therefore incomplete. Three of these four triangles contained numbers.
Further, Ofcom noted that:
- the relevant gap in each of the four triangles was so small, it was impossible to see on the recording provided by the broadcaster; and
- at no point in the broadcast competition, including the explanation of how the required answer was arrived at, was any reference made to including numbers from only complete triangles, when calculating the answer.
With regard to these specific points, Viasat said that:
- “although [the] small gaps may not have been evident in the recording provided, they should have been evident to the viewer during [the] broadcast (as the image would have been clearer and bigger on a normal size television screen)”; and
- “although no specific reference may have been made to complete triangles, the premise of the competition was to count “triangles”. The definition of a triangle is “a plane figure with three straight sides and three angles” (as defined by the Oxford dictionary); hence, as there is a small gap, it is not a triangle and therefore not counted.”
The broadcaster said that it made every effort to ensure its competitions were run fairly but, having recognised that competitions in Ringoling “could have been very difficult for some viewers … the decision was taken to cancel the programme”, which ended on 16 May 2010.
As stated in Ofcom’s guidance to Section Two of the Code, for a competition to be conducted fairly, we believe its correct solution should be reasonable and certain.
Ofcom accepts that identifying the correct answer(s) may be more difficult in some competitions than others. However, if, taking into account all the factors, the answer is not reasonable, and almost impossible to be identified by any viewer, then Ofcom is likely to consider that the competition has not been conducted fairly.
Information provided on screen
We noted that Viasat said the recording it had provided to Ofcom was not as clear as the material broadcast by TV8. In previous issues of Ofcom’s Broadcast Bulletins, it has regularly reminded broadcasters that recordings provided to Ofcom for compliance purposes should be “‘as broadcast’ (i.e. the same quality in terms of both sound and picture as when originally transmitted).” (-1-)
Having viewed the recording provided by Viasat on screens of various sizes, Ofcom is of the view that the recorded material was sufficiently clear to make an assessment of what viewers were most likely to have seen. In Ofcom’s view, it is unlikely that viewers would have, under any reasonable circumstances, been able to detect that some triangles were not complete because their lines did not meet. This is because the gap between the lines was so small that it was undetectable. Therefore, when asked to add the numbers in the completed triangles, the audience would not have reasonably been able to distinguish between complete and incomplete triangles. This view is supported by the fact that:
- the complainant was concerned that all the possible triangles had not been included; and
- no viewer identified the required answer until the following clue had been provided by the presenter:
“The correct answer is an odd number, between five hundred and fifteen, and five hundred and nineteen.”
In Ofcom’s view, this clue simply provided viewers with the required answer, 517.
Explanation of the answer
Ofcom noted that the methodology applied in calculating the required answer was not explained fully after the competition had ended, as no reference was made to including numbers from only complete triangles. Guidance to Rules 2.13 to 2.16 of the Code states:
“Except where the logic behind an answer to a competition is readily recognisable to a reasonable viewer, the methodology used to produce it should be adequately explained during the broadcast at the time the answer is given. The same guidance – the broadcast of both the answer and any explanation of how it was arrived at – applies in the event that no entrant is successful.”
We noted the definition of a triangle, quoted in Viasat’s response. However, Ofcom did not consider that the methodology applied in this instance was explained adequately on air, as the presenter failed to detail why the numbers in certain triangles were excluded from the calculation of the required answer.
On the basis of all the material provided to Ofcom, no entrant could have been expected to arrive at the required answer, given the information provided to viewers when TV8 invited them to enter (until the clue was provided). Further, no viewer was likely to known why the required answer was correct, after the presenter had explained how it had been calculated. The competition was not therefore conducted fairly, in breach of Rule 2.13.
Ofcom has taken into account TV8’s very good compliance record, with no Code breaches recorded to date. We also note that TV8 has now taken the decision to cancel the programme. Nevertheless, we are taking this opportunity to remind the broadcaster that, in recent years, Ofcom has recorded numerous breaches of its rules relating to broadcast competitions. Ofcom has made it clear that it expects all broadcasters to exercise particular caution when inviting audiences to enter such competitions, particularly where they are required to pay a premium rate to participate.Breach of Rule 2.13
1.- See, for example: ‘Quality of recordings’, Broadcast Bulletin issue number 95, 22 October 2007, at:
and the following Findings:
Amount of advertising…, GEM, Issue number 145, 9 November 2009, at:
Club Paradiso, Club Paradiso, Issue number 149, 11 January 2010, at:
Bang Babes and Early Bird, Tease Me TV, Issue number 152, 22 February 2010, at:
Babeworld.tv, 9 July 2010, 21:00 to 21:30
Freeblue 1 is an adult sex chat television service, owned and operated by Babeworld TV Limited (“Babeworld TV” or “the Licensee”). The service is available freely without mandatory restricted access on the channel Babeworld TV (Sky channel number 908). 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 about the conduct of the female presenters.
Ofcom noted that the programme featured up to eleven women on screen at the same time. All of the women were wearing skimpy underwear including thongs and bras. At various times the women were shown adopting sexual positions, including: lying on their backs with their legs open to camera; bending over with their buttocks to camera; and presenters between the legs of other presenters. While in these positions the female presenters carried out a number of sexually provocative acts. Some were shown rubbing their breasts and buttocks, and touching around their genital area and upper thighs. Some presenters were shown kissing each other and touching each other’s breasts, buttocks, genital area and upper thighs. They were also shown lightly spanking each other’s buttocks. The broadcast also included images of a presenter placing her head between the legs of another presenter, mimicking oral sex. In addition, a female presenter removed another presenter’s bra and was shown licking and sucking her nipples. Certain presenters licked their fingers to mimic the performance of oral sex on a man.
Ofcom requested formal comments from Babeworld TV under the following Code Rules:
- Rule 1.6 - the transition to more adult material must not be unduly abrupt at the watershed;
- Rule 2.1 - the broadcaster must apply generally accepted standards; and
- Rule 2.3 - offensive material must be justified by context.
The Licensee said that this broadcast “was the launch of Bluebird TV and as such it had several presenters on screen at the same”. It said that there were so many presenters that viewers would have found it hard to focus on any one girl for any length of time.
Babeworld TV said that the broadcast “went out on an adult EPG and therefore the likely viewing audience would have been fully aware of the type of content it could expect to receive”. It continued that it was “unlikely that they [the viewers] would have found the content at odds with the generally accepted standards”. It continued that the material “would not have caused any offence as it would have been in context with their [viewers’] expectations and the channel listing”.
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.
Ofcom recognises that there were a number of presenters on screen at the same time filmed in relative long shot for the most part and there were not any close-up images of genitalia. The overall impact of the images was lessened to some extent by these factors. Nevertheless, Ofcom considered the imagery in terms of sexually provocative behaviour on the screen still to be sexually strong and capable of causing offence, particularly for the time it was scheduled. On a number of occasions the female presenters adopted sexually provocative positions both individually and together, and the nature of their joint performances was very sexual. For example, the presenters rubbed and stroked each other’s genital area and upper thighs in a sexualised manner, spanked each other, one presenter mimicked licking another presenter between her legs, and one presenter was shown licking and sucking another presenter’s exposed breasts.
Ofcom therefore examined the extent to which there were any particular editorial or contextual factors that might have limited the potential for offence. As noted above, all the presenters were shown from a distance and the camera did not film any of the images described above in close up or in intrusive detail. Ofcom took into account that this programme was broadcast after the 21:00 watershed, and that viewers tend to expect stronger sexual material to be shown after this time. Ofcom also noted that the Babeworld TV 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.
However, Ofcom was concerned that the sexualised images described above were shown directly after the watershed from 21:00. Ofcom took into account 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 directly after the watershed between 21:00 and 21:30. Ofcom therefore considered that the time of broadcast and the location of the channel were not sufficient to justify the broadcast of sexually provocative behaviour such as that included in this broadcast at this time in the schedule. Ofcom therefore concluded that this content was clearly not justified by the context and breached generally accepted standards.
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. Given the images described above were broadcast so soon after the watershed, Ofcom considered that they were too strong to be shown so soon after the watershed and contravened Rule 1.6.
This broadcast was therefore in breach of Rules 1.6, 2.1 and 2.3 of the Code.
Breach of Rules 1.6, 2.1 and 2.3
Elite TV 2, 6 August 2010, 12:24
Elite Days is a televised daytime interactive chat programme broadcast without mandatory restricted access on Elite TV2. 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 licence for the service Elite TV2 is held by Over 18 TV Ltd (“Over 18 TV” or the “Licensee”).The service is available freely without mandatory restricted access on Sky channel number 914. This channel is situated in the 'adult' section of the Sky electronic programme guide ("EPG").
As a result of Ofcom’s concerns about compliance in this sector, Ofcom conducts occasional monitoring of daytime chat channels.
In this case, Ofcom noted that the female presenter was wearing a very skimpy mesh and string vest showing her naked breasts beneath with only plasters over her nipples, and a see through lace thong. During the broadcast the presenter adopted various sexual positions for periods of time, including on her front with her bottom in the air, and on her side with her legs apart. While in these positions she repeatedly stroked and touched her body, buttocks and breasts, and wiggled and thrust her hips in the air in a sexually provocative way. She also pulled her mesh vest over her buttocks while pushing her hips in the air.
Ofcom requested comments from Over 18 TV under Rule 1.3 (“Children must be protected by appropriate scheduling from material that is unsuitable for them.”)
Over 18 TV acknowledged that the presenter’s clothing might raise potential issues under the Code but stated its belief that the clothing was within the margins of acceptability of the Code. The Licensee did, however, offer its apologies and assurance that it was taking steps to ensure this incident was not repeated. Over 18 TV agreed that nipple covers were not suitable attire for a female presenter for daytime broadcasts and “may cross the line from sexy in to sexual attire”.
Over 18 TV explained that on this particular day a junior producer had been left in charge of the output whilst the company had an away day. The producer and the presenter were aware of what was suitable attire but its internal compliance document made no specific reference to nipple covers, only that “breasts must be covered at all times ensuring no nipple or areola are visible”. Over 18 TV added that, having seen presenters on other channels using nipple covers, the producer and presenter concluded that there was no compliance issue. Over 18 TV stated that this decision was incorrect and have now advised their presenters and producers to err on the side of caution.
Over 18 TV said it had now changed its internal compliance manual to state that “breasts must be covered with a bra at all times ensuring no nipple or areola are visible. Nipple covers, small straps or anything other than a bra which covers the breast as well as nipples are strictly prohibited between the hours of 5.30am and 9pm”.
With regard to the presenter’s performance, Over 18 TV said that she was not acting in a sexual way. She was a well known glamour model and the positions she adopted were similar to those seen in photo shoots for magazines. The Licensee said that overall her performance was sexy rather than mimicking any sexual act, and that the presenter behaved at all times in a relaxed rather than sexually provocative manner.
Over 18 TV added that it was unlikely that children would come across the material unawares given the position of the channel on the Sky EPG and that parental controls were available to block material. Over 18 TV also said that it was unlikely that children would find the material sexual in any way, that there was no full nudity, and no images could be considered harmful. It said that near nudity and provocative material are available on mainstream and other channels which are widely accessible and which are not so easy to block using parental controls.
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.
This broadcast was transmitted at lunchtime and featured a female presenter wearing a very skimpy outfit 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: lying on her front with her legs open and bottom raised in the air; and lying on her side with her legs open (albeit away from camera). While in these positions the presenter repeatedly wiggled or gyrated her buttocks in a sexually provocative way as though mimicking sexual activity or excitement. She also stroked parts of her body, including her breasts, thighs and buttocks.
We note the Licensee’s assertions that: children are unlikely to find the material sexual as there was no full nudity and similar material is available on mainstream and other channels; that the presenter was a well known glamour model and her pictures can be seen in magazines; and that the attire worn by the presenter was sexy rather than sexual. However, in this instance the presenter’s breasts were naked under her mesh vest except for plasters covering her nipples and her actions added to the sexual nature of the content. Ofcom noted the Licensee’s point that the producer said he had seen female presenters wearing similar clothing on other daytime chat services. Licensees should never assume that because other broadcasters include certain actions in their output that this is compliant with the requirements of the Code.– especially when Ofcom has provided clear guidance on that area of broadcasting (see footnote 1). In Ofcom’s opinion, this material was clearly unsuitable for children.
Ofcom then considered whether this material was appropriately scheduled. We concluded that the content included in the broadcast as described above, had limited editorial justification since its primary purpose was to elicit PRS calls. It was broadcast during the day and in school holidays when children may have been watching television, some unaccompanied by an adult. While Ofcom noted that the material was broadcast on a channel in the adult section of the EPG, there was the clear potential for children, should they be flicking through the EPG, to come across the channel unawares. We accept that adult channels on the Sky EPG can be blocked by means of a PIN parental protection system. However this does not absolve broadcasters from their responsibility to comply material so as to protect children from material that is unsuitable for them.
Ofcom concluded that the content of this broadcast was clearly unsuitable for children and not appropriately scheduled. Therefore the content breached Rule 1.3 of the Code.
Breach of Rule 1.3
1.- Tease Me (Freeview) Finding in Bulletin 165 at http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb165/;
Early Bird (Freeview) Finding in Bulletin 163 at http://www.ofcom.org.uk/tv/obb/prog_cb/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/;
Top Shelf TV, Finding in Bulletin 149 at http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb149/.
Tease Me TV (Freeview), 27 July 2010, 07:30 to 07:50
Earlybird is a televised daytime interactive chat programme broadcast on Tease Me TV between 05:30 and 09:00 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 concerned that the content was unsuitable for broadcast at this time of day.
Ofcom noted that the female presenter was wearing a pink bra and thong over which was a skimpy mesh all-in-one vest and thong. During the broadcast the presenter adopted certain positions including lying on her side with her legs wide open; on her front with her bottom raised sometimes turning to reveal her bottom to camera; and, on her back with her hips raised in the air. While in these positions the presenter repeatedly: stroked and touched her body including her crotch area, legs, buttocks and breasts; moved and gyrated her hips sometimes high in the air in a sexually provocative way; pulled sexualised facial expressions and lightly spanked her buttocks.
Ofcom requested comments from Bang Media under Rule 1.3 (children must be protected from unsuitable material by appropriate scheduling).
Ofcom formally requested comments from Bang Media on several 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.
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, such as: lying on her side with her legs wide open (albeit away from camera) throughout most of the broadcast and on her back with her hips raised high in the air. While in these positions the presenter repeatedly mimicked sexual activity by moving and gyrating her hips in a sexual manner and stroking particular parts of her body, including her breasts and crotch area. She also pulled facial expressions that were sexualised rather than flirtatious, and was shown lightly spanking her buttocks.
We 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 clothing and 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 on a weekday morning and therefore at a time when children may have been watching television, some unaccompanied by an adult. Many children were also on their school holidays. 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, and 163, Bang Media has already been put on notice that these contraventions of the Code are being considered for a further statutory sanction.
Breach of Rule 1.3
1.- Earlybird, Tease Me TV, 3 June 2010, 05:45 and 08:00, Broadcast Bulletin 164 at http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb164/; Earlybird, Tease Me TV, 30 January, 20 March, 27 April 2010 and Earlybird, Tease Me, 21 April 2010 – all Findings in Broadcast 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 Broadcast 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 Broadcast 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, Broadcast Bulletin 152 at http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb152/;
Elite Days, Finding in Broadcast Bulletin 151 at http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb151/;
Baronessen flytter ind
Kanal 4 Denmark, 1 August 2010, 19:00
Baronessen flytter ind is a series broadcast on Kanal 4 Denmark, a television channel that operates under an Ofcom licence and transmits to audiences in Denmark.The licence is held by SBS Broadcasting Networks Ltd (“SBS” or the “Licensee”).
This is a lifestyle swap programme which features a celebrity Baroness going to live with an ‘ordinary’ Danish family. The wife of the family then spends time in the Baroness’ castle. The Baroness for her part aims to change the attitudes of the male members of the family, rethink their approach towards helping out around the family home and improve their overall family life.
The husband of the family, Jonny, works in a sex shop. In this episode the Baroness visits him at his place of work and discusses the nature of the business in a bid to understand him and what motivates him.
Ofcom received a complaint from a viewer who objected to the sexual content of the broadcast.
Ofcom noted that, during the broadcast, footage from within the sex shop showed adult DVDs, the covers of which showed images of naked and scantily clad women. There was also some discussion about the sex toys on sale and the camera focussed on several dildos. At one point the Duchess removed a large fist shaped dildo from the shelf and asked Jonny: “Can you explain this?” Jonny answered: “Yes it’s for both vaginal and anal use, you use it as your hand.” Jonny then briefly made a fist and demonstrated a thrusting motion.
Ofcom wrote to SBS for comments with regard to Rule 1.3 (“Children must be protected by appropriate scheduling from material that is unsuitable for them”) and Rule 1.20 (“…Any discussion on, or portrayal of, sexual behaviour must be editorially justified if included before the watershed…and must be appropriately limited”).
The Licensee explained that the channel appeals to a female adult audience and the programme attracts only a small percentage of children. It said that the channel is seen only by a Danish audience, who generally have a more liberal attitude towards sexual matters than UK viewers.
SBS argued that the scenes from within the sex shop were both editorially justified and appropriately limited as required by Rule 1.20. It said they were needed to show an insight into Jonny’s work in order to understand his attitude towards his home life, and that the shots of DVD covers and other material were brief and that there was no detailed or prolonged depiction of nudity.
With regards to the discussion about a sex toy, the Licensee acknowledged this may possibly be contentious but argued it was editorially justified because it allowed viewers to see how the Baroness copes with an environment very different to her usual surroundings, and how her reaction to the husband’s unusual profession colours her attitude towards Jonny and the tasks she assigns his family. SBS considered the discussion involving the dildo, including the explanation of its use, was appropriately limited.
Rule 1.3 of the Code states that children must be protected by appropriate scheduling from material that is unsuitable for them.
When setting and applying standards in its Code to provide adequate protection to members of the public including under eighteens, 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.
We appreciate the reasons of editorial justification put forward by SBS who have explained that the interview in Jonny’s workplace, was an important part of the show, helping give the audience a greater understanding of the individuals featured and their personal motivations. However, Ofcom’s concern in this instance was the time at which this programme was broadcast. Taking into account the right to freedom of expression as outlined above, we do not believe that the footage from a sex shop featured in this particular programme was suitable for pre-watershed broadcast. While many of the camera shots within the sex shop did not focus on nudity and the shots of the DVD covers were not especially graphic, we were concerned by the discussion on, and shots of, sex aids set out above.
We accept that this programme was broadcast at 20:00 local time in Denmark. However this is still well before the 21:00 watershed. It was broadcast at a time when we would expect broadcasters to be mindful of the sexual content of programming in order to protect children who may be in the audience. Ofcom considers that the series is a light-hearted entertainment programme which viewers would not normally expect to feature material of an overtly sexual nature. Ofcom’s view was that the sex aids part of the interview was unnecessarily detailed and not sufficiently editorially justified.
We do not consider that this content was appropriate for a pre-watershed programme of this kind which is available to a general audience including some children. The programme therefore breached Rules 1.3 and 1.20.Breach of Rules 1.3 and 1.20
Tease Me, 28 July 2010, 23:40 to 00:00
Bang Babes is a programme on the adult sex chat television service known as Tease Me, owned and operated by Bang Channels Limited (“Bang Channels” or “the Licensee”). The service is available freely without mandatory restricted access on Sky channel number 912. This channel is situated in the 'adult' section of the Sky electronic programme guide. 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.
Condition 11 of Bang Media’s licence states that the Licensee must make and then 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 a complaint about alleged inappropriate adult content broadcast between 23:40 and midnight. Ofcom requested a recording of the material from Bang Media.
Between 16 August and 7 September 2010 Ofcom formally asked Bang Media on several occasions, and set various deadlines, to provide a recording of the programme. The Licensee failed to provide a recording of the programme. 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. Ofcom therefore proceeded to reach a decision.
Ofcom formally asked Bang Media on several occasions to provide a recording of the output which was complained of so that Ofcom could view it and decide whether it raised any potential issues under the Code. Bang Media failed to provide any recording. This was therefore a clear breach of Condition 11 (Retention and production of recordings) of Bang Media’s licence to broadcast.
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 Condition 11. 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, and 163, Bang Media has already been put on notice that these contraventions of the Code are being considered for a further statutory sanction.
Breach of Condition 11 (retention and production of recordings)
BBC2, 1 August 2010, 21:30
Top Gear is a long-running light entertainment series presented by Jeremy Clarkson based on a motoring magazine format. Jeremy Clarkson and his co-presenters, James May and Richard Hammond, provide information and commentary about cars and interact with the audience and special guests. Programmes are generally broadcast later in the evening schedule and typically include quirky and humorous banter between the presenters. Repeats of programmes are broadcast later in the week and are available to view on BBC iPlayer.
In this particular programme, Mr Jeremy Clarkson was presenting his views about a new Ferrari car and he compared it to older versions, one of which was owned by James May. His commentary included the following opinion about the appearance of Ferraris in general:
“Striking - yes, but pretty - no. This one for example is just vulgar, and even James’ Ferrari (the 430) was a bit wrong - that smiling front end - it looked like a simpleton - should have been called the 430 Speciale Needs”.
Ofcom received two complaints. In summary, the complainants were offended by Mr Clarkson’s use of “speciale needs” when he was criticising the car’s appearance, playing on its proper name of Ferrari F430 Especial. Ofcom wrote to the BBC to request comments from them in respect of Rule 2.3 of the Code (material which may cause offence must be justified by the context).
In response, the BBC said it regretted that the comments made by Jeremy Clarkson in the programme caused offence to some viewers. The BBC said that Top Gear is a light hearted and humorous programme characterised by a certain amount of good natured bantering. It said that regular audiences would be aware of the tone of the show and the fact that fun is often poked at the expense of the presenters, guests and vehicles featured in it. The BBC said that Mr Clarkson’s intention in describing the car as “speciale needs” and the front end of it as looking like a “simpleton” was as a light hearted reference to the look of the car (the front of which has the appearance of a broad smile) in contrast to a newer model, which was praised by Mr Clarkson. The BBC said that it was the car itself that was the subject of the fun being poked at and its owner, co-presenter James May.
The BBC recognised, however, following complaints received, that the comment had the potential to cause offence so it was removed from the repeat version of the programme and the version available on BBC iPlayer. It assured Ofcom that the original version of the programme would not be repeated again. The BBC offered its apologies for any offence caused by the comments. It said there was no intent to make light of those with special educational needs or to make fun at their expense.
Ofcom has a duty to ensure that generally accepted standardsare applied to the content of radio and television services so as to provide adequate protection from the inclusion of harmful or offensive material. In applying those standards, Ofcom is required, by the Communications Act 2003, to do so “in the manner that best guarantees an appropriate level of freedom of expression”.
In relation to generally accepted standards, including those in relation to remarks used in a discriminatory and potentially offensive way, Ofcom recognises that what is and is not generally accepted is subject to change over time. When deciding whether or not particular broadcast content is likely to fall within generally accepted standards it is necessary to first assess the character of the content itself and then assess the context in which that content is broadcast. In the case of potentially discriminatory comments, this involves assessing the potential for offence and balancing that against the particular editorial or contextual justification for broadcasting such comments. Ofcom does not prohibit the use of any words.
We took account of the fact that Top Gear is well known for its irreverent style, and sometimes outspoken humour and studio banter between the presenters, and that many viewers are familiar with this format. Ofcom also noted that this programme was broadcast at 21:30 and that viewers expect programmes to contain more challenging content and humour after the watershed.
However, Ofcom recognises that discriminatory language of this nature has the potential to be very offensive to some viewers, as it could be seen to single out certain sections of society in a derogatory way because of their disability. In Ofcom’s view, the comments made by Jeremy Clarkson in this instance were capable of causing offence. In particular, on this occasion he was clearly criticising the car’s physical appearance by directly comparing it to “a simpleton” and saying it should have been called “430 Speciale Needs”. In Ofcom's opinion, while obviously intended as a joke and not aimed directly at an individual with learning difficulties, the comment could easily be understood as ridiculing people in society with a particular physical disability or learning difficulty.
Ofcom also noted that the BBC accepted that the inclusion of the comments had caused some members of the audience offence. This was reflected in the fact that they had chosen to remove these comments from the repeat versions of the programme and from the version of the programme available on BBC iPlayer.
Ofcom acknowledged that the BBC took immediate steps in response to complaints it received about the programme. In particular the BBC had voluntarily removed the comments from the iPlayer version of the programme and the repeat version broadcast several days later, and made the decision not to repeat the programme in its original format. It had also apologised for any offence caused by the comments, underlining that there was no intent to make fun of those with special needs.
Ofcom therefore considered this case resolved.
Big Brothers Little Brother
Channel 4, 22 August 2010, 11:25
Big Brother’s Little Brother is a pre-watershed “sister programme” of the main Big Brother series. It is broadcast live in the early evening weekdays on E4 and Sunday mornings on Channel 4 (as here). It provides an overview of the latest events in the Big Brother house and interviews with evicted housemates.
When referring to a task that was set in the Big Brother house, evicted housemate John James Parton (“John James”) used the phrase “fuck it”. Ofcom received two complaints from viewers who considered this language to be unsuitable given the morning scheduling of the programme.
Ofcom therefore sought the broadcaster’s comments under Rule 1.14 of the Code (“The most offensive language must not be broadcast before the watershed…”).
Channel 4 said that before the programme’s dress rehearsal, all four evicted housemates from the previous show were advised that Big Brother’s Little Brother was a family show with a very different tone and audience expectation to other Big Brother strands of programming. All participants of the programme were required to sign a guest briefing form. The broadcaster said that both before and after the dress rehearsal, John James was reminded that swearing of any kind was completely prohibited on Big Brother’s Little Brother. Directly before transmission, the no-swearing policy was repeated to all housemates.
Channel 4 said directly following the incident, both presenters interrupted John James and offered their apologies to viewers. The broadcast then cut to transmission of a pre-recorded segment. Following this, a further apology was made to viewers for any offence John James’ language may have caused.
Once the programme had finished, the broadcaster made arrangements to ensure the offending language was removed so that repeat broadcasts were suitable for a pre-watershed audience. Further, a decision was taken to pre-record any interviews with John James planned for subsequent episodes of Big Brother’s Little Brother.
Channel 4 considered that it had appropriate procedures in place to prevent a breach of Rule 1.14 and the broadcast of offensive language was caused by a contributor who had expressly been instructed not to swear while live on air. It added that the presenters took appropriate action to prevent further breaches by apologising twice to the audience for what had occurred. It therefore submitted that Ofcom should regard the matter as resolved.
Our research indicates that the word “fuck” and its derivatives are an example of the most offensive language. Rule 1.14 states that the most offensive language must not be broadcast before the watershed.
Ofcom recognised that the programme was broadcast live and noted the procedures in place to minimise the risk of offensive language being used by participants of Big Brother’s Little Brother. It also noted the swift apology given by both presenters and the action taken to remove the offensive language from repeat broadcasts. Ofcom therefore considers the matter resolved.
Who Wants to be a Millionaire?
ITV1, 3 August 2010, 20:00
This episode of the quiz show Who Wants to be a Millionaire featured a viewer competition with a prize of £1,000. Viewers were asked to identify the answer to a question from four options presented during the programme as A, B, C or D. Viewers could enter by calling a premium telephone number, charged at £1 from a BT line or by text message, charged at £1 plus the user’s standard network rate.
Ofcom received three complaints from viewers about the competition. One complainant was concerned that, when calling the telephone entry line, there was a recorded message referring to a different competition question than the one that had been broadcast in the programme. The other two complainants discovered that, despite entering the competition before the closure announcement broadcast at the end of the programme, they were advised that the competition had closed and their entry had been rejected.
Ofcom therefore contacted ITV Broadcasting Limited (“ITV”), who complied the programme on behalf of the ITV Network for ITV1, and sought its comments under Rule 2.14 of the Code (“Broadcasters must ensure that viewers or listeners are not materially misled about any broadcast competition or voting.”)
ITV explained that the incident had occurred due to human error. A request to change the sequence of episodes was made by the show’s producers; the request was to switch episode 14 (scheduled for 3 August 2010) with episode 16. Unfortunately, this alteration was not made by ITV’s scheduling department and so the original sequence of episodes remained in the broadcaster’s scheduling system.
When preparing the competition’s telephone entry system on 3 August 2010, the producer and interactive team were working to the revised transmission schedule and therefore included the competition question originally intended for episode 16. Consequently, the question posed to callers during the recorded message differed to the competition question broadcast in the programme.
The broadcaster said that the error was “spotted immediately on broadcast by ITV Interactive Operations, who were monitoring the show live.” It concluded that there was potential for viewers who had entered by telephone to have been misled and therefore, the competition was cancelled within three minutes of detecting the problem. ITV added that as the programme was pre-recorded, it was unable to prevent any subsequent on-air invitations to participate but ensured that viewers would not be charged if they sought to enter. The telephone message was changed to advise entrants that the competition was closed and that they would not be charged. Text message entrants received a reply similarly stating the competition was closed, that they had been charged standard network rate, and giving details on how they could apply for a refund – via ITV’s website or telephone.
The broadcaster said that the total number of entries for the competition was 12,031 comprising 2,698 submitted by telephone and 9,063 by text message. It was able to facilitate an automatic refund to BT telephone entrants who had not withheld their number. It also set up a call centre responsible for contacting non-BT telephone entrants directly and dealing with refund applications. ITV broadcast an announcement on ITV1 the following day in which it apologised for the mistake and directed viewers to the ITV website for details of the refund procedure. ITV pledged that monies that had not been claimed by 1 November 2010 would be donated to charity.
ITV stated that, following the incident, it had reviewed its scheduling processes to seek to avoid any similar error arising in the future. It also removed competition questions from the telephone message script in order to prevent this particular problem from reoccurring.
In recent years, Ofcom has recorded numerous breaches of its Rules relating to audience competitions. Ofcom has made it clear that it expects all broadcasters to exercise particular caution when inviting audiences to enter broadcast competitions, particularly where they are required to pay a premium rate to participate.
In this case, Ofcom considered that the error that had occurred had resulted in the possibility that viewers may have been materially misled. In particular, because viewers had been provided with a different question during the programme than the one referred to in the recorded message on the telephone entry line. There was a risk that the 2,698 telephone entrants might have either inadvertently answered the wrong question, or terminated their call due to the confusion, but still incurred a charge. Ofcom was therefore concerned that the problem was not detected before the programme went to air.
However, Ofcom noted the extremely swift action taken by the broadcaster to cancel the competition and set up a comprehensive refund process and the measures it has now put in place to ensure that the error is not repeated. In view of the remedial action taken by ITV in this instance, Ofcom considers the matter resolved.Resolved
Sky Sports News
Sky Sports News, 29 July 2010, 12:00
Sky Sports News is a 24-hour rolling sports news service. Ofcom received a complaint that during a live report from a horse race meeting in Ireland, branding for the drink Guinness could be seen clearly behind the correspondent at the event.
After reviewing the material, Ofcom asked Sky to comment on how the material complied with Rule 10.4 of the Code (“No undue prominence may be given to a product or service.”)
Sky said the live report took place at the Galway Races in Ireland, where Guinness was one of the event sponsors and consequently there was branding for the drink around the racecourse.
The broadcaster said that, before a live report is broadcast, it is normal practice to take about five minutes to assess any technical issues and the quality of the pictures and sound, including any compliance issues which may have arisen from the placement of the camera. However, Sky said two technical problems had occurred before transmission of this report which had to be dealt with to enable it to be shown live. The live link was the priority for Sky personnel and the technical matter was only corrected approximately 30 seconds before the interview, which meant there was only a short time left to check for general compliance.
The broadcaster said the production team had failed to realise the Guinness branding was too prominently framed in the shot. Sky acknowledged this was a case of human error and sincerely apologised for this situation. After the interview, a decision was taken by Sky not to repeat the report as the broadcaster decided the item was overly prominent towards the Guinness logo.
Sky said there were other live reports from the Galway Races across its coverage, but none featured any Guinness branding. Following the incident, the Executive Producer of Sky Sports discussed the issue with the key staff involved in this error to ensure compliance of live output remains a priority at all times. In addition, the broadcaster said in its compliance training courses, it will ensure all relevant staff are re-trained on this issue.
One of the principles of Section Ten of the Code is to ensure that programmes are not distorted for commercial purposes.
Undue prominence may result from the manner in which a product or service, including brand names and logos, appears in a programme.
Ofcom acknowledges that sports programming, and in particular post-event interviews, often include incidental shots of advertising logos and branding affiliated with the event sponsor.
However, in this case, a sizeable hoarding displaying three pints of Guinness together with Guinness branding, took up much of the frame and was clearly in view behind the correspondent for most of the two and a half minute duration of the report.
We note that Sky has admitted that the branding was unduly prominent and has apologised, explaining that this had occurred as a result of human error due to a technical problem before the live transmission of the report.
Given the action the broadcaster has taken to ensure staff are vigilant in this area, and the good compliance record of the channel, Ofcom considers the matter resolved.Resolved
Not in Breach
Dispatches: Britains Islamic Republic
Channel 4, 1 March 2010, 20:00
This edition of Dispatches was presented by investigative journalist Andrew Gilligan and reported on the Islamic Forum of Europe (“the IFE”). The programme sought to investigate how the IFE - described as “a fundamentalist Muslim group” in the programme - had allegedly infiltrated a number of British political parties and was exerting influence over Tower Hamlets Council in London. The programme included secretly filmed footage taken in the East London Mosque, the London Muslim Centre and the studios of the IFE’s weekly radio show, Easy Talk.
The presenter introduced the programme by saying:
“Tonight on Dispatches, how a fundamentalist Muslim group has secretly infiltrated the Labour party and the broader political system... How it wants an Islamic State, or caliphate. And how it wants to live by Sharia Law in the UK... And how it is already exerting influence over a London borough council with a billion pound budget.”
The programme reported that the East London Mosque in Whitechapel is linked to the IFE and that, through government grants paid to support the Mosque or associated organisations, British tax payers “are unwittingly helping to finance its [the IFE’s] planned and co-ordinated bid to infiltrate British politics”. The programme alsoexamined the IFE’s allegedly wider channels of influence, such as, for example, its radio programmes on Muslim Community Radio (“MCR”) and by representing Muslim community organisations.
Ofcom received 205 complaints about the programme. The complaints expressed a number of concerns about the broadcast. In summary, the complainants said that the programme:
- was biased against Islam, the IFE, the East London Mosque and the Muslim community;
- contained inaccurate and defamatory accusations about the IFE and wrongly referred to the IFE as a “fundamentalist” and “extremist” organisation;
- was politically motivated and broadcast too close to general and local elections;
- was a misleading and dishonest portrayal of the Muslim community;
- was offensive to Muslims; and
- contributed to “Islamophobia” by portraying Muslims as terrorists and will add to racial tension by promoting hatred.
Ofcom viewed the programme in light of these complaints. We examined the material under the following rules of the Broadcasting Code:
- Rule 2.2: “Factual programmes or items or portrayals of factual matter must not materially mislead the audience.”
- Rule 2.3: “In applying generally accepted standards, broadcasters must ensure that material which may cause offence is justified by the context. Such material may include, but is not limited to…discriminatory treatment or language (for example on the grounds of…religion).”
- Rule 3.1: “Material likely to encourage or incite the commission of crime or to lead to disorder must not be included in television or radio services.”
- Rule 5.5: “Due impartiality on matters of political or industrial controversy and matters relating to current public policy must be preserved on the part of any person providing a service.”
Some complainants believed the programme was broadcast too close to the general and local elections. In this case, the programme was broadcast on 1 March 2010, outside the election period (i.e. before the announcement of the dissolution of Parliament). Therefore the ‘stricter’ rules in Section Six of the Code relating to elections did not apply to this programme.
Rule 5.5 (Due impartiality)
A number of complainants said that this programme was politically motivated and, as noted above, was broadcast too close to the general and local elections.
In exercising its functions Ofcom must take account of the right to freedom of expression. This encompasses the broadcasters’ right to transmit and the audience’s right to receive creative material, information and ideas without interference but subject to restrictions prescribed by law and necessary in a democratic society. This right is enshrined in the European Convention on Human Rights. The rules in the Code seek to balance this right to freedom of expression against the need to apply restrictions. These restrictions include such statutory duties as the requirement for broadcasters to preserve “due impartiality” on certain matters. Ofcom recognises that Section Five of the Code, which sets out how due impartiality must be preserved, acts to limit, to some extent, freedom of expression. This is because its application necessarily requires broadcasters to ensure that neither side of a debate relating to matters of political or industrial controversy and matters relating to current public policy is unduly favoured.
Ofcom acknowledged that Channel 4’s statutory remit requires it to provide:
“…a broad range of high quality and diverse programming which, in particular … exhibits a distinctive character.”
Ofcom also considered it of paramount importance that broadcasters, such as Channel 4, continue to explore controversial subject matters. While such programmes can polarise opinion, they are essential to our understanding of the world around us.
The programme had an investigative format and looked into the activities of the IFE and certain individual members. It is important to note that what areas a programme covers and when a programme is transmitted are purely editorial decisions for the broadcaster, but subject of course to the requirement that its content complies with the requirements of the Code.
Section Five of the Code states that due impartiality must be preserved by the broadcaster on “matters of political or industrial controversy and matters relating to current public policy.” The Code explains in summary that these are “political or industrial issues on which politicians, industry and/or the media are in debate…”.
Did the programme include matters of political controversy?
Ofcom first had to establish whether Dispatches: Britain’s Islamic Republic contained subject matter requiring the application of the due impartiality rules. We noted that during the programme it was alleged that the IFE infiltrated a number of British political parties at local level, such as the Labour Party and Respect Party. In particular it claimed that a prospective party candidate for the Respect Party in the 2010 general election was linked to the IFE. The programme also reported that the IFE was exerting influence over Tower Hamlets Council.
In Ofcom’s view parts of the programme did discuss issues of political controversy. We considered in this case that the issue of political controversy was the extent to which a certain Islamic group had allegedly influenced certain local political parties, institutions and policies. Therefore in this case, taking into account all the circumstances, and bearing in mind the context of the programme described in the Introduction above, Ofcom concluded that the elements of this investigative programme dealing with these issues were subject to the due impartiality rules.
Was due impartiality preserved in the programme?
Given the programme’s investigative format, looking into activities of certain individuals and organisations, the editorial narrative of the programme reflected what the reporter had discovered. It focussed on the actions of the IFE and its alleged members, and the effect these organisations had on particular political parties and their policies. Such investigative programmes will always take on a certain editorial approach to the subject matter, but nevertheless, such programming must always ensure that due impartiality is maintained.
As noted above, the programme alleged that the IFE had infiltrated certain political parties and the Tower Hamlets Council in London. For example, the programme included interviews with people who explained how the IFE had managed to extert influence over political parties. The programme also alleged that some politicians had connections with the IFE.
However, Ofcom noted that during the programme, where allegations were made against the IFE, alternative viewpoints were expressed. In particular, certain contributors in the programme were able to put their viewpoint across (as well as deny allegations). Therefore the programme transmited other opinions, and in particualr, those who believed that the IFE was not an extremist Muslim organisation and that it was not targetting political parties to infiltrate. For example, the programme carried views of the IFE and stated:
“In a statement to Dispatches, the IFE rejects our allegations of entryism or that it is infiltrating British political parties”
The IFE said:
“There is no IFE policy … or strategy which directs its members to join [Tower Hamlets Labour Party] … or that is has influenced or sought to influence key funding decisions.”
Given the above, we considered that the programme included views to both support and reject the allegations made about the IFE in the programme, and any response or opposing views to the evidence gathered was appropriately presented during the course of the programme. Given this, Ofcom considered that the programme was a legitimate investigation into the activities of the IFE and “due impartiality” was preserved as required by Rule 5.5.
Rule 2.2 (Factual programmes must not materially mislead the audience)
A number of complainants also suggested that the programme: contained inaccurate and misleading accusations about Islam, the East London Mosque, the Muslim community and the IFE e.g. wrongly referring to the IFE as a “fundamentalist” and “extremist” organisation.
Rule 2.2 states that: “Factual programmes or items or portrayals of factual matters must not materially mislead the audience”. It is important to note that there is no freestanding requirement for non-news programmes to be accurate. Rather, the accompanying Ofcom guidance to Rule 2.2 of the Code explains that “Ofcom is required to guard against harmful or offensive material, and it is possible that actual or potential harm and/or offence may be the result of misleading material in relation to the representation of factual issues. This rule is therefore designed to deal with content which materially misleads the audience so as to cause harm or offence.” (Emphasis in original). Ofcom was therefore unable to consider complaints relating solely to the accuracy of the claims made during the programme.
Ofcom considered that the vast majority of the audience would be likely to understand that documentaries such as this result from hours of footage edited down as required for the individual programmes. Provided those featured in the programmes are not treated unfairlyand viewers are not materially misled, this is, of course, an acceptable practice.
This programme was an investigative documentary into the activities, views and policies of particular organisations and individuals. As a piece of considered television journalism it was legitimately entitled to adopt a position on those activities, views and policies – provided the audience was not materially misled. This programme did make some controversial allegations. These were supported by recorded clips, or actual quotes, as appropriate; and the programme also included on screen statements from many of the people and organisations who featured in the investigation in response to allegations made in the programme. There is no evidence that viewers were materially misled therefore in terms of Rule 2.2 as to the allegations against particular individuals or organisations. Nor did the programme suggest at any point that all or many Muslims or Muslim organisations or their members were in general extremist or fundamentalist. The audience was therefore not materially misled in this respect either. As a consequence, Ofcom did not consider the programme to be in breach of Rule 2.2.
Rule 2.3 (generally accepted standards)
Some complainants considered that the allegations made in the programme were offensive to Muslims. It should be noted that the Code does not prohibit the broadcast of material because it is, or is perceived to be, offensive. Such material can be transmitted so long as it is justified by the context. Ofcom therefore considered these complaints under Rule 2.3 of the Code, which states:
“In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context”.
The meaning of “context” includes, but is not limited to:
“the editorial content of the programme…or series; the service on which the material is broadcast;…the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally or in programmes of a particular description;…[and] the likely expectation of the audience.”
In this case, Ofcom considered that the broadcast of this programme was clearly justified by context and in accordance with the Code. This was an in-depth investigative documentary exploring the extent to which the IFE had allegedly infiltrated certain British political parties and social organisations. The nature of the programme was a serious documentary focusing on an important issue of public interest. The editorial purpose and the issues it sought to expose were clearly positioned to viewers at the start of the programme. The programme was clearly part of Channel 4’s distinct public service remit. Also in Ofcom’s opinion most of the channel’s likely audience would have expected such a provocative documentary from the Dispatches strand.
Within the programme, it was made clear that the allegations made related to the IFE only and were not representative of all Muslims. For example, the programme referred to the views and experiences of Muslims who were not part of the IFE, and included contributions from leaders of the Tower Hamlets Muslim community. In particular the programme stated that:
“ Although the IFE claim to speak for the Muslim community as a whole and their members have access to government, the fact is, they don’t even represent the Muslim community in Tower Hamlets.”
“We’ve spoken to many leaders of the Tower Hamlets Muslim community, like Harmuz Ali, who are furious at the way the IFE is spreading its influence and claiming to speak for them.”
In addition, as noted above, the programme also represented the views of the IFE in response to the allegations.
Therefore in accordance with generally accepted standards, the allegations made about the IFE were put within the context of views from the wider Muslim community. Given the above reasons, Ofcom believed that the programme was not in breach of Rule 2.3.
Rule 3.1 (Incitement of crime):
Some of the complainants believed that the programme contributed to “Islamophobia” by portraying Muslims as terrorists and would add to racial tension by promoting hatred. While the programme certainly contained strong allegations about the IFE and their beliefs, in Ofcom’s opinion these views would not, on a reasonable view, encourage or incite the commission of a crime (such as racial hatred), contextualised with commentary as they were within a serious documentary. The allegations were justified by the narrative of the programme and put fully in context. Accordingly, Ofcom did not consider that the programme was likely to encourage or incite the commission of crime or lead to disorder. Therefore Ofcom did not consider the programme to be in breach of Rule 3.1.
Not in breach of Rules 2.2, 2.3, 3.1 and 5.5
1.- Please see Ofcom’s decision with regard to a fairness and privacy complaint made by Mr Abjol Miah about this Dispatches programme: on page 31 of Bulletin 167: http://stakeholders.ofcom.org.uk/binaries/enforcement/broadcast-bulletins/obb167/issue167.pdf
The full document (Advertising Scheduling Cases / Other Standard cases / Fairness & Privacy cases) is available below