Broadcast Bulletin Issue number 171 06/12/10
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.
Notice of Revocation of Licences
In Breach
Licence numbers: TLCS-933, TLCS-1015, TLCS-1231 or the TLCS Licences
Service names: Tease Me, Tease Me 2 and Tease Me 3
Licensee Bang Channels Limited
Licence number: DTPS-078 or the DTPS Licence
Service name: Tease Me TV
Licensee: Bang Media (London) Limited
Introduction
On 25 November 2010, Ofcom revoked all licences held by Bang Channels Limited and Bang Media (London) Limited, on the grounds that the licensees were no longer ‘fit and proper’ to hold Ofcom licences.
Bang Channels Ltd held three TLCS licences: TLCS-933 (Tease Me), TLCS-1015 (Tease Me 2) and TLCS-1231 (Tease Me 3). Bang Media (London) Ltd held one DTPS licence: DTPS-078 (Tease Me TV) (the four licences referred to collectively as “the licences”, and Bang Channels Ltd and Bang Media (London) Ltd referred to collectively as “the Licensees”). The Licensees are under common control, and have the same directors and compliance team. The three TLCS licences were granted under Part 1 of the Broadcasting Act 1990 (“the 1990 Act”). The DTPS licence was granted under Part 1 of the Broadcasting Act 1996 (“the 1996 Act”).
On 2 November 2010, Ofcom notified the Licensees, that it was minded to revoke the licences, subject to their representations, on the basis that Ofcom no longer considered that the Licensees were fit and proper persons to hold a licence under the 1990 Act or the 1996 Act. This was due to serious and repeated breaches of the Ofcom Broadcasting Code (“the Code”) and their licence conditions recorded against the Licensees.
Period prior to issuing the Notice of proposed licence revocation
Prior to issuing the Notice of proposed revocation on 2 November 2010, Ofcom had found a series of serious and repeated breaches of the Code (48 separate breaches in total) by the Licensees over the previous 19 months. In addition to these Code breaches, the Licensees had failed to provide recordings upon request by Ofcom in respect of five programmes, in breach of Licence Condition 11.
On 29 July 2010, Ofcom fined the Licensees 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. No payment has been received from the Licensees, and Ofcom now is pursuing this as a separate matter.
Period since issuing the notice of proposed revocation
Since issuing the Notice of proposed revocation on 2 November 2010, Ofcom found a further nine breaches of the BCAP Code Rules 32.3 and 4.2 in relation to material broadcast by the Licensees between 9 November 2010 and 16 November 2010 (see http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/breach-26-november-2010/).
In addition, on 19 November 2010, Ofcom issued a direction to the Licensees to cease providing the Licensed Services with immediate effect, in light of evidence of broadcast material which was considered to be likely to amount to a serious breach of the BCAP Code in relation to the broadcast of pornography and/or BBFC R18-rated material (-1-).
However, Ofcom had evidence that the Licensees continued to broadcast material in breach of the direction. Whilst the material was not listed on the Sky EPG, it continued to be broadcast via satellite in the United Kingdom and Ofcom was aware that the Licensees had sought to inform viewers how to access these broadcasts by reconfiguring satellite receivers.
Licensees’ Representations
The Licensees’ representations, as submitted on 24 November 2010, were not sufficient to persuade Ofcom, in light of all the evidence, that it should not revoke the licences on the basis that the Licensees are no longer fit and proper. In particular, Ofcom was not satisfied that sufficient changes had been made to the structure of the Licensees and their compliance arrangements that further serious repeated breaches of the licensing regime would not occur.
Revocation
On this basis, Ofcom ceased to be satisfied that the Licensees were fit and proper persons to hold licences under the 1990 Act or the 1996 Act and decided to revoke those licences, in accordance with section 3(3)(b) of the 1990 Act and section 3(3)(b) of the 1996 Act.
Accordingly, Ofcom revoked all the licences on 25 November 2010 with immediate effect.
The full Decision can be found at: http://stakeholders.ofcom.org.uk/binaries/enforcement/content-sanctions-adjudications/bangmedia-revocation.pdf
Standards cases
Footnotes:
1.- Material equivalent to BBFC R18 is not permitted to be broadcast on Ofcom licensed services under any circumstances.
Standard Cases
In Breach
Charity appeal for Shah Jalal Mosque and Madrasha
ATN Bangla UK, 11 and 12 August 2010, various times
Introduction
ATN Bangla UK provides a general entertainment service from the Indian sub-continent for Asian communities in the UK and other countries across Europe. It broadcasts predominantly in Tamil, Bengali, English, Hindi and Punjabi.
This charity appeal was ATN Bangla UK’s second appeal broadcast during Ramadan 2010. It ran throughout the evening of 12 August 2010 (from 18:00) and overnight (to 04:15), to raise money for the Shah Jalal Mosque and Madrasha Islamic Cultural Centre, in Burnley.
Throughout most of the programme, details of how viewers could donate were displayed in a panel across the lower part of the screen. The information panel also stated that the appeal for “Burnley Islamic Cultural Centre” was “arranged by Shah Jalal Mosque and Madrasha” and referred to “charity no. 10611412”. A scroll beneath the panel detailed what various amounts, if donated, could purchase and also stated: “This appeal is supported by Ashton Bangladesh Welfare Association”.
A viewer questioned the legitimacy of the charity, noting that the charity number displayed on-screen did not appear to be genuine. He also alleged that Shah Jalal Mosque and Madrasha had paid for, and therefore sponsored, ATN Bangla UK’s broadcast appeal.
Ofcom noted that charity number 10611412 did not appear to be associated with any charity listed on the Charity Commission’s website.
We therefore asked ATN Bangla UK for its comments concerning the complainant’s concerns, with specific regard to the following Code Rule:
Rule 10.13 (-1-) “Charity appeals that are broadcast free of charge are allowed in programmes provided that the broadcaster has taken reasonable steps to satisfy itself that:
- the organisation concerned can produce satisfactory evidence of charitable status, or, in the case of an emergency appeal, that a responsible public fund has been set up to deal with it; and
- the organisation concerned is not prohibited from advertising on the relevant medium”.
Ofcom also asked the broadcaster for a copy of any agreements it had made with any third party associated with the appeal, and recordings of any broadcast material that had resulted from such agreements.
ATN Bangla UK said that the charity appeal had not been broadcast in return for payment or other valuable consideration. It provided:
- a copy of a “Charity Campaign Agreement – Ramadan 2010”, which gave details of a payment that had been made to the broadcaster by Shah Jalal Mosque and Madrasha for: “Ramadan Campaign Cost Inclusive of Studio live facilities, Set & Props, Documentary production, Promo making, Presenter, Fund raising conference & Food”; and
recordings of:
- the broadcast charity appeal;
- a short “documentary”, which:
- lasted approximately six and a half minutes;
- examined the Islamic Cultural Centre construction project more closely; and
- was broadcast on six occasions (once before and once after the broadcast appeal and four times during it); and
- a “promotional”, which was:
- 31 seconds;
- both a programme trail for the broadcast appeal and an appeal in its own right, as it provided details of how to donate; and
- broadcast on twelve occasions during the day of the broadcast appeal and on five occasions during the preceding day (11 August 2010).
Section Nine of the Code states that “a sponsored programme … is a programme that has had some or all of its costs met by a sponsor with a view to promoting its own or another's name, trademark, image, activities, services, products or any other direct or indirect interest…”
We therefore also asked ATN Bangla UK for its comments, with specific regard to the following Code rules:
Rule 9.5 “There must be no promotional reference to the sponsor, its name, trademark, image, activities, services or products or to any of its other direct or indirect interests. There must be no promotional generic references. Non-promotional references are permitted only where they are editorially justified and incidental”;
Rule 9.6 “Sponsorship must be clearly identified as such by reference to the name and/or logo of the sponsor. For programmes, credits must be broadcast at the beginning and/or end of the programme”; and
Rule 9.7 “The relationship between the sponsor and the sponsored … programme must be transparent.”
Response
ATN Bangla UK said that it considered Shah Jalal Mosque and Madrasha to be a legitimate charitable organisation. The broadcaster added that the organisation was raising funds for its Islamic Cultural Centre with the support of Aston Bangladesh Welfare Association, which is a charitable organisation registered with the Charity Commission (number 1061412). It explained that the charity number shown on-screen throughout the broadcast appeal (i.e. “10611412”) was incorrect, as a result of a transcription error, which had been an oversight on its part.
ATN Bangla UK said it took this matter very seriously and hoped the complainant’s concern about the legitimacy of the organisation had now been assuaged.
In response to Ofcom’s request for comments concerning Rules 9.5, 9.6 and 9.7 of the Code, ATN Bangla UK stated:
“The … Charity Appeal did not make reference to purchase or rental of a product or service, the charity appeal promotional intended to inform the audience the purpose of the appeal, which was made with due consideration to section 10.13 ... of the Code”
The broadcaster therefore appeared to have considered all the broadcast material under consideration (i.e. the programme trail for the broadcast charity appeal, the documentary broadcast in and around the appeal and the appeal itself) to have been programming (not advertising), but did not appear to have considered any of it to have been sponsored.
Decision
Rule 10.13 of the Code notes that a charity appeal broadcast in (or as) a programme must be broadcast “free of charge”. If payment, or the provision of some other valuable consideration, is made for the broadcast, by the relevant charity, the appeal may only take place outside programming (i.e. as advertising). Otherwise, the broadcast raises issues under Section Nine (Sponsorship) of the Code, as discussed under ‘sponsorship issues’, below.
The charity
Ofcom noted that ATN Bangla UK considered the charity appeal to have been broadcast free of charge and had therefore considered it to be compliant with that aspect of Rule 10.13 of the Code..
Further, we noted that ATN Bangla UK had taken steps to assess the legitimacy of the broadcast appeal’s beneficiary (Shah Jalal Mosque and Madrasha Islamic Cultural Centre), as required by Rule 10.13 of the Code (on the basis that the broadcaster considered the programme to have been broadcast free of charge).
While it was unfortunate that Aston Bangladesh Welfare Association’s charity number (1061412) had been quoted incorrectly on-screen, we recognise that, as a supporter for the Shah Jalal Mosque and Madrasha Islamic Cultural Centre, the provision of such information nevertheless demonstrated that ATN Bangla UK had taken reasonable steps to ensure the beneficiary’s charitable status, as required under Rule 10.13 of the Code.
Sponsorship issues
Ofcom noted both the content of the agreement made between ATN Bangla UK (the broadcaster) and Shah Jalal Mosque and Madrasha (the charity), which stated that payment has been received by the broadcaster towards meeting the costs of:
- “Studio live facilities”;
- “Set & Props”;
- “Documentary production”;
- “Promo making”;
- “Presenter”;
- “Fund raising conference”; and
- “Food”.
As stated in the Code, “a sponsored programme … is a programme that has had some or all of its costs met by a sponsor with a view to promoting its … activities, services … or any other … interest…”
In particular, Ofcom noted that, as detailed in the agreement, payment by Shah Jalal Mosque and Madrasha had been made to the broadcaster in return for the provision of the following items:
- live studio facilities, the set, props and the presenter used in the broadcast charity appeal;
- production of the associated documentary, broadcast on six occasions in and around the broadcast charity appeal; and
- production of the additional (brief) appeals and programme trails, broadcast on 17 occasions as programming (not advertising).
These costs appeared to Ofcom to be programme costs met with a view to promoting its activities and interests within the broadcast charity appeals, to raise funds for its Islamic Cultural Centre. Ofcom therefore concluded that the broadcast charity appeals, and all the material broadcast in association with them, were sponsored by Shah Jalal Mosque and Madrasha.
Rule 9.5 of the Code requires that “there must be no promotional reference to the sponsor, its … activities … or to any of its other … interests … Non-promotional references are permitted only where they are editorially justified and incidental”.
The purpose of a broadcast charity appeal is generally to solicit and encourage the audience to make financial donations to the charity in question. In this case, the charity was also the sponsor of the appeals. As such, Ofcom considered that the references within the appeals to the Shah Jalal Mosque and Madrasha, and its Islamic Cultural Centre, were promotional references to the sponsor, its activities and interests. The broadcast charity appeals in this instance (i.e. the extended overnight charity appeal programme, which also contained the associated short documentary, and the brief appeals that also trailed the programme) were therefore in breach of Rule 9.5.
Likewise, Ofcom noted that the subject matter of the associated documentary broadcast outside the extended overnight appeal was the sponsor’s Islamic Cultural Centre construction project. As such, these references to the sponsor’s activities and interests could not be considered incidental, as required by Rule 9.5 of the Code. The two separate broadcasts of the documentary (before and after the extended overnight charity appeal programme) were therefore in breach of this rule.
To ensure that the audience is made aware of commercial involvement in programmes, Rule 9.7 of the Code requires that “the relationship between the sponsor and the sponsored … programme must be transparent”, and Rule 9.6 requires that “sponsorship must be clearly identified as such … credits must be broadcast at the beginning and/or end of the programme”. These are explicit requirements of EU broadcasting legislation – the Audiovisual Media Services (AVMS) Directive.
During the broadcast of all the material under consideration in this instance, viewers would have been unaware of any commercial arrangement between ATN Bangla UK and the Shah Jalal Mosque and Madrasha, as no sponsorship credits were broadcast, in breach of Rules 9.6 and 9.7 of the Code.
Ofcom is concerned by ATN Bangla UK’s lack of compliance in this instance and puts the broadcaster on notice that, in the event of similar Code breaches, we will consider taking further regulatory action.
Breaches of Rules 9.5, 9.6 and 9.7Footnotes:
1.- At the time of the broadcasts in question, the relevant rule was Rule 10.13. From 1 September, it was re-numbered as Rule 10.15 in the amended Section Ten of the Code; available at: http://stakeholders.ofcom.org.uk/broadcasting/broadcast-codes/broadcast-code/commercial-references/
In Breach
Sponsorship of Inside Incredible Athletes
Channel 4, 29 August 2010, 21:00
Introduction
Inside Incredible Athletes profiled several competitors of the upcoming London 2012 Paralympic Games and covered their preparation for the event.
Ofcom noted that, directly before the programme started, two sponsorship credits were broadcast. Both credits contained images of the official London 2012 logo. One credit referred to BT, with the voiceover stating:
“BT, proud partner of the London 2012 Paralympic Games”.
The second credit referred to Sainsbury’s, with the voiceover stating:
“Over four thousand of the world’s greatest athletes will be pushing themselves to their absolute limits at the London 2012 Paralympic Games and everyone at Sainsbury’s is very proud to be supporting them.”
Similar credits appeared before and after the commercial breaks that occurred during Inside Incredible Athletes, and at the end of the programme.
Ofcom noted that none of the credits referred to, or gave any indication of, a sponsorship arrangement between BT/Sainsbury’s and the programme.
Ofcom therefore asked Channel 4 to confirm that BT and Sainsbury’s had sponsored the programme, and sought the broadcaster’s comments with regard to the following Code rules:
- Rule 9.6 – Sponsorship must be clearly identified as such by reference to the name and/or the logo of the sponsor; and
- Rule 9.7 – The relationship between the sponsor and the sponsored channel or programme must be transparent.
Response
Channel 4 explained that, when acquiring the UK television rights for the London 2012 Paralympic Games, it “pledged to provide the event with strongest pre-Games broadcast coverage the event has ever received”. It added that “all Paralympic coverage both pre-Games and during the event is sponsored by BT and Sainsbury’s.”
The broadcaster confirmed that Inside Incredible Athletes formed part of its pre-Games coverage and therefore the programme was sponsored by BT and Sainsbury’s. With regard to the programmes’ sponsorship credits, Channel 4 said that, in its view, the credits clearly identified “the Paralympic pre-Games sponsorship arrangement through voiceover and visual logo.”
Channel 4 argued that viewers had a “good understanding of the look and feel of programme sponsorship credits in general” and did not accept that there would be “viewer confusion about the relationship between the sponsor and the sponsored programme, especially in the light of the unprecedented publicity about Channel 4 becoming the Paralympics broadcaster and the extensive pre-Games coverage it plans”.
Therefore, the broadcaster did not consider the sponsorship credits to have breached either Rule 9.6 or 9.7 of the Code.
Decision
Ofcom considered that the sponsorship credits made clear that BT and Sainsbury’s were sponsors of the London 2012 Paralympic Games (for example: “BT, proud partner of the London 2012 Paralympic Games”; and “Over four thousand of the world’s greatest athletes will be pushing themselves to their absolute limits at the London 2012 Paralympic Games and everyone at Sainsbury’s is very proud to be supporting them”).
As such, we did not dispute Channel 4’s view that the sponsorship arrangement between BT/Sainsbury’s and London 2012 Paralympic Games was sufficiently clear. However, we were concerned that the sponsorship credits made no reference to the sponsorship arrangement between BT/Sainsbury’s and the programme Inside Incredible Athletes.
Rule 9.6 of the Code requires that programme sponsorship must be clearly identified “as such”, and Rule 9.7 requires that the relationship between the sponsor and the sponsored programme must be made clear to the audience. These are explicit requirements of EU broadcasting legislation – the Audiovisual Media Services (AVMS) Directive.
As the sponsorship credits made no reference to the sponsored programme, Ofcom did not consider the programme sponsorship arrangement to be clearly identified as such, as required by Rule 9.6. As a consequence, the relationship between the sponsor and the sponsored programme was not transparent, and the programme was therefore also in breach of Rule 9.7.
Breaches of Rules 9.6 and 9.7
In Breach
Dirty Talk Live
Dirty Talk, 2 September 2010, 21:00 to 22:00
Dirty Talk Live is a programme on the adult chat television service Dirty Talk available freely without mandatory restricted access on Sky channel number 920. This channel is situated in the 'adult' section of the Sky Electronic Programme Guide (“Sky EPG”). The licence for this service is owned and operated by RHF Productions Limited (“RHF” or “the Licensee”). 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 about alleged inappropriate adult content broadcast at various times between 21:00 and 22:00 on 2 September 2010. The complainant considered the presenter “continually simulated both sexual intercourse and oral sex” too soon after the watershed.
From 1 September 2010, daytime chat and adult sex chat broadcast services were no longer regulated under the Ofcom Broadcasting Code as editorial content but as long form advertising (teleshopping). Ofcom set out its decision on this issue in a statement published on 3 June 2010 (-1-) after a period of public consultation. Ofcom’s statutory duties in relation to broadcast advertising were contracted out to the Advertising Standards Authority (“ASA”) in 2004. The rules governing broadcast advertising are set by the Broadcast Committee of Advertising Practice (“BCAP”) with the approval of Ofcom. BCAP performs its function by setting, monitoring and amending the UK Broadcast Code of Advertising Practice (“BCAP Code”), with Ofcom retaining back-stop enforcement powers. Ofcom has however retained responsibility for regulation of certain services under the BCAP Code. These include daytime chat and adult sex chat services. As a consequence, all output from these channels must comply with the BCAP Code.
Ofcom noted the presenter was wearing a basque, fishnet stockings, and a thong. On several occasions between 21:00 and 21:30 and throughout the remainder of the broadcast the presenter knelt on all fours with her buttocks pointing upwards and lay on her back with her legs open to camera. While in both of these positions she thrust her hips powerfully in a sexual manner so as to mimic sexual intercourse. Although fully clothed, she also stroked her breasts, lightly spanked her buttocks, opened her mouth in a sexual rather than flirtatious manner and mimed oral sex. Ofcom noted the images described above were shown very shortly after the 21:00 watershed, starting at 21:03.
Ofcom requested formal comments from RHF in relation to the following BCAP Code Rule:
Rule 32.3 Relevant timing restrictions must be applied to advertisements that, through their content, might harm or distress children of particular ages or that are otherwise unsuitable for them.
Response
In response the Licensee said “the programme would have been in line with viewer’s expectations of an adult channel broadcast after the watershed...without mandatory restricted access”. However, they accepted their internal compliance guidelines had not been followed in this instance due to an inexperienced presenter who was unfamiliar with the Licensee’s internal compliance guidelines. Additionally, the studio’s communication equipment had failed, resulting in the producer leaving the gallery to fix it and was therefore not in a position to oversee the programme content as it was broadcast. RHF told Ofcom it had reviewed its compliance procedures and taken steps to ensure “content of this nature is not broadcast again” so soon after 21:00. These measures included: suspension of both the producer and presenter in question pending further compliance training and amending RHF’s internal guidelines to ensure at least one producer is present in the gallery at all times between the hours of 21:00 and 22:00, given this is a particularly busy period and to provide an additional level of scrutiny over the broadcast of the programme.
Decision
Ofcom has a statutory duty to ensure that persons under the age of eighteen are protected from harmful or offensive material in radio and television programmes (including advertising).
In fulfilling this duty, 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. Ofcom notes however that a broadcaster’s right to freedom of expression, although applicable to commercial sexual content and pornography, is more restricted in this context compared to, for example, political speech. This right can be legitimately restricted if it is for the protection of the public, including the protection of those under 18.
In applying BCAP Code Rule 32.3 Ofcom had first to decide if the broadcast material was unsuitable for children. With regards to this broadcast, Ofcom noted that on a number of occasions between 21:00 and 21:30 (and as early as 21:03) the female presenter adopted sexually provocative positions - for example, kneeling on all fours with her buttocks in the air and thrusting heavily and gyrating her hips. She was also seen lying on her back for prolonged periods with her legs open to camera and thrusting her hips. Ofcom noted that whilst in this position the on-screen graphics obscured the presenter’s genital area to some extent. In adopting these positions, in Ofcom’s view, the presenter was mimicking sexual intercourse. In Ofcom’s opinion, this material was clearly unsuitable for children.
Ofcom then went on to consider whether relevant timing restrictions had been applied to the material in question. Ofcom noted that this programme was broadcast on a channel without mandatory restricted access in the period immediately after the 21:00 watershed, which is in place to protect minors.
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 (and in particular parents) would not expect such material to be broadcast so soon after 21:00. Ofcom took account of the fact that the Dirty Talk channel is in the 'adult' section of the Sky EPG and is available without mandatory restricted access.
As regards timing restrictions for scheduling, Ofcom has made clear in numerous previous published findings that stronger material should appear later in the schedule and that the transition to more adult material should not be unduly abrupt at the 21:00 watershed (-2-). 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 so soon after the 21:00 watershed. Given the images described above were broadcast between 21:00 and 21:30, Ofcom considered relevant timing restrictions were not applied on this occasion to broadcast content which was unsuitable for children. This broadcast was therefore in breach of BCAP Code Rule 32.3.
Breach of BCAP Code Rule 32.3
Footnotes:
1.- See: http://stakeholders.ofcom.org.uk/consultations/participationtv3/statement/
2.- For example:
Free Blue 1 Babeworld.tv, 9 July 2010, 21:00 to 21:30(http://stakeholders.ofcom.org.uk/binaries/enforcement/broadcast-bulletins/obb168/issue168.pdf)
Sport XXX Babes, 16 May 2010, 21:00 to 21:30 (http://stakeholders.ofcom.org.uk/binaries/enforcement/broadcast-bulletins/obb164/issue164.pdf)
Friendly TV Various programmes,various dates between 3 April 2009 and 5 July 2009 ( http://stakeholders.ofcom.org.uk/binaries/enforcement/broadcast-bulletins/obb153/Issue153.pdf )
In Breach
Bluebird
Essex Babes, 16 September 2010, 17:45 to 18:15
Bluebird
Essex Babes, 27 September 2010, 22:30 to 23:10
40 Plus Readers Wives
Essex Babes, 27 September 2010, 23:10 to 24:00
The channel Essex Babes is owned and operated by the licensee Satellite Entertainment Limited (“SEL” or “the Licensee”).
Essex Babes is situated in the 'adult' section of the Sky electronic programme guide and is available freely without mandatory restricted access. It is broadcast on Sky channel number 955. At the times indicated above the channel promoted a service on screen known and branded as Bluebird TV. The channel broadcasts programmes during the day based on daytime chat, and after the 21:00 watershed programmes 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 a more sexually provocative way after the watershed while encouraging viewers to contact the PRS numbers.
Condition 11 of SEL’s licences 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 recordings “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 complaints about alleged inappropriate content broadcast at around:
- 18:00 on 16 September 2010; and,
- 22:30 and 23:10 on 27 September 2010
In order to make an initial assessment of the complaints (to consider whether or not to investigate the issue), Ofcom requested from the Licensee recordings of material from 17:45 to 18:15 on 16 September 2010, and from 22:30 to 24:00 on 27 September 2010.
Response
Between 4 October and 27 October 2010 Ofcom formally asked SEL on several occasions, and set explicit deadlines, to provide recordings of its output at the times and dates specified. In response, the Licensee failed to provide recordings of the programmes requested.
Since the Licensee was obliged under the terms of its licence to supply the recordings “forthwith” on request, Ofcom asked the Licensee for formal representations on its compliance with Condition 11 of its licences.
SEL did not provide any comments in response. Ofcom therefore proceeded to reach a decision.
Decision
It is a condition of all broadcast licences that a licensee adopts procedures for the retention and production of recordings and provides these recordings to Ofcom “forthwith” if requested. Further, the recordings should be “as broadcast “(i.e. the same quality in terms of both sound and picture as when originally transmitted).
In particular, Condition 11 of the Television Licensable Content Service licence states:
“…the Licensee shall:
- make and retain or arrange for the retention of a recording in sound and vision of every programme included in the Licensed Service for a period of 60 daysfrom the date of its inclusion therein; and
- at the request of Ofcom forthwith produce to Ofcom any such recording for examination or reproduction;…”
Ofcom formally asked SEL on several occasions to provide recordings of the output at the time and dates specified so that Ofcom could view them and decide whether they raised any potential issues under the Code. The Licensee failed to provide the recordings and provided no valid reasons to justify this failure. There were therefore twoclear and separate breaches of Condition 11 (Retention and production of recordings) of SEL’s licences to broadcast.
All contraventions of Condition 11 are serious matters because they mean that Ofcom is unable to assess whether a particular broadcast raises potential issues under the Code. This therefore impedes Ofcom from carrying out its statutory duty to regulate television and radio broadcasts.
It is a broadcast licence condition requiring a licensee to provide Ofcom on request with a recording of its output. It is unacceptable for a licensee to refuse to provide such recordings.
Ofcom has previously and recently found the Licensee in breach of Condition 11 for failure to provide requested material on 8 November and 22 November 2010 as regards four individual broadcasts concerning three of its licences (-1-). These two current contraventions are therefore additional and repeated examples of further individually serious breaches of one of SEL’s licences. As a result of the breach of licences recorded on 22 November 2010, the Licensee was put on notice that those contraventions of its licences were being considered for the imposition of a statutory sanction. These two further breaches of one of its licences will be added to the Licensee’s compliance record and will be considered for sanction in addition to the breaches previously recorded.
Breach of Licence Condition 11 (retention and production of recordings) – 16 September 2010
Breach of Licence Condition 11 (retention and production of recordings) – 27 September 2010
Footnotes:
1.-http://stakeholders.ofcom.org.uk/binaries/enforcement/broadcast-bulletins/obb169/issue169.pdf published on 8 November 2010 and http://stakeholders.ofcom.org.uk/binaries/enforcement/broadcast-bulletins/obb170/issue170.pdf published on 22 November 2010.
Resolved
Sky Sports News
Sky Sports News, 7 September 2010, 11:30
Introduction
Sky Sports News broadcast a live press conference between David Haye and Audley Harrison. The press conference was given to promote the boxers’ world heavyweight title fight scheduled for 13 November 2010. During the conference there were two instances of offensive language. As the boxers participated in a heated verbal exchange Haye said to Harrison: “You’re going to slink back to LA and hide out in the fucking hills”. Shortly after, as the taunts between the two men continued, Harrison said that he had seen other boxers knock Haye down. Haye challenged Harrison on who he was referring to and Harrison responded with: “Jim Twite in the fucking ABAs, you forgetting?”
Ofcom received a complaint from a viewer who objected to strong language being broadcast at this time of day. Ofcom wrote to BSkyB (“Sky”), which holds the licence for this service, for comments with regard to Rule 1.14 (the most offensive language must not be broadcast before the watershed).
Response
Sky apologised for the offensive language and for any offence caused to viewers. It explained that they have previously broadcast numerous live interviews and press conferences featuring both boxers without any similar incident occurring. Both boxers and their managers were advised before the conference that it would be broadcast live and that they should not swear. Given the clear guidance given and previous exemplary record of both boxers in this regard, the production team did not expect offensive language to feature.
Immediately after the second use of offensive language, the live coverage was stopped. On the return to the studio the presenter apologised to viewers. When coverage of the press conference resumed, the Sky Sports News reporter reminded those present that the broadcast was live and that they should “ mind their language” and “keep it clean”. After the conference ended without any further incident the studio presenter again apologised to viewers.
The broadcaster acknowledges that offensive language was used and that this is wholly unacceptable but believes that it took all reasonable steps prior to and during the broadcast to prevent and minimise any offence to viewers. It considers that it acted promptly and effectively in dealing with an unexpected event during the live broadcast.
Decision
Ofcom’s audience research (-1-) shows that the word “fuck” and its derivatives are considered to be very offensive, and therefore this language should not be broadcast before the watershed.
Ofcom recognises that the transmission of ‘live’ programming presents particular difficulties and compliance challenges as regards the use of unexpected offensive language. In the circumstances of the live coverage of this press conference, we considered that the broadcaster took reasonable steps to limit potential offence and comply with the Code. For example, it gave guidance in advance about the unacceptability of offensive language and promptly cut away from the event as soon as there appeared a risk that the use of offensive language might escalate. Various apologies were given to viewers as soon as practicable after the bad language was used. In the circumstances and this occasion, Ofcom regards this matter as resolved.
Footnotes:
1.- “Audience attitudes towards offensive language on television and radio”, August 2010, available to view at: http://stakeholders.ofcom.org.uk/binaries/research/tv-research/offensive-lang.pdf
Resolved
The full document (Advertising Scheduling Cases / Other Standard cases / Fairness & Privacy cases) is available below