Broadcast Bulletin Issue number 175 07/02/11
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.
Channel Climax 3-3, 1 July 2010, 22:15 to 22:45
Climax 3-3 (-1-) was a channel broadcast under a licence held by Playboy TV UK/Benelux Limited (“Playboy” or “the Licensee”) in the adult section of the Sky Electronic Programme Guide (“EPG”). The service comprised adult sexual entertainment broadcast in Sky channel number 961, and was normally provided only between 22:00 and 05:30 and subject to mandatory restricted access with measures in place to ensure the subscriber is an adult. The channel however included some “freeview” sections broadcast without mandatory restricted access in order to promote the channel and encourage viewers to subscribe.
On 1 July 2010 between 22:15 and 22:45, the service showed prolonged and explicit scenes of sexual activity. The broadcast, which comprised three separate scenes, featured either two or three actresses together.
The first scene showed two actresses in a bar setting. This scene included the depiction of the insertion of a bottle, a straw, a dildo and a hand-held soft drink dispenser gun. The second scene showed what appeared to be a lone woman urinating in a barn. The third scene showed three actresses in a barn who appeared to be inserting fingers and dildos into themselves and each other.
The sexual activity in all three scenes included depictions of: insertion of dildos, fingers and other objects either by one female on another or one female on herself; oral sex; and masturbation. During the broadcast the camera featured close up and intimate shots of the sexual activity but some activity was partially hidden by parts of the actresses’ bodies.
On 2 July 2010 Playboy informed Ofcom that there had been a scheduling error by the company that organised the listing of its broadcasts and that this material had been played out by mistake without any protections. Some time later Ofcom received a complaint from a viewer who said that broadcasts in the “freeview” section of Climax 3-3 on 1 July 2010 included some strong material that should have been subject to mandatory restricted access.
Ofcom requested formal comments from Playboy in relation to the following Code Rule:
Rule 1.17 “Material equivalent to the British board of Film Classification (BBFC) R18-rating must not be broadcast at any time”.
Playboy confirmed that the material had been broadcast without mandatory restricted access and in error on 1 July 2010, and that it had informed Ofcom the next day of this particular scheduling failure before any complaint was made. An employee at its listing company had accidentally imported the incorrect data on to the scheduling system and this resulted in scheduled encrypted content being broadcast free to air. This human error was not picked up at the “safety net” stage. Playboy had now put in place stringent new checking processes to ensure this would not happen again.
Regarding the explicitness of the material and whether this was of R18 equivalent rating, Playboy said that there were a limited number of borderline shots of angles where there could be some debate over whether the object or finger penetration was simulated. It said that when deciding whether to edit out certain shots from its material it always sought advice from the BBFC. It said that it went by the rule that “if it cannot be argued that penetration is not occurring, then it must be cut”. For example fingers may be bent at the knuckle rather than penetrating, objects may go underneath or behind an orifice, and if objects are filmed from behind there could potentially be a gap between the orifice and the object. With regard to what appeared to be urination by one of the actresses, Playboy argued that it always ensured that the point of exit was obscured so that it could be argued that the act was simulated, for example, by using a water bottle hidden by a leg.
Playboy accepted however that it was in breach of the Code, in that it had broadcast “adult sex material” (material that contains images and/or language of a strong sexual nature broadcast from the primary purpose of sexual arousal or stimulation) without the necessary mandatory restricted access required by the Code. However, it argued that “there was nothing broadcast which could be construed as unarguably R18 or equivalent i.e. full-on penetration”. It did accept that there was a “very fine line between simulated and non-simulated” activity.
Playboy said in light of the compliance error, it had acted responsibly and informed Ofcom of this breach as soon as possible, on the day after the error occurred. This underlined the Licensee’s commitment to compliance and “willingness to keep an open dialogue” with Ofcom.
Ofcom has a duty to ensure that people under eighteen are protected and 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. 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 behind mandatory restricted access.
Rule 1.17 of the Code means, however, that BBFC R18 rated films or equivalent material must not be broadcast at any time, whether or not behind mandatory restricted access. Ofcom guidance makes clear that broadcasters should be guided by the BBFC guidelines on “R18” works in deciding what is equivalent to BBFC R18 rated material. The BBFC states that: “The R18 category is a special and legally restricted classification primarily for explicit works of consenting sex...”. Various Ofcom decisions have clarified what Ofcom has regarded as content equivalent to R18-rated material (-2-).
In considering the content of this programme Ofcom asked itself first whether the content of the programme was equivalent to that in a BBFC R18-rated film or video.
Ofcom first examined a scene during this broadcast which included what appeared to be a lone actress urinating. Ofcom considered that this scene had a clear focus on the act of urination and that, as with other material in this programme, was broadcast for the primary purpose of sexual arousal. In the circumstances, Ofcom considered that this particular content was of an equivalent standard to R18-rated material and its broadcast was therefore a breach of Rule 1.17.
Ofcom next examined other scenes in the programme which appeared to show either vaginal or anal penetration by various objects, including dildos, fingers and a bottle. Ofcom recognised that these scenes were less clear. However, viewers would have reasonably believed that penetration was taking place despite there being no explicit shots of point of insertion. In particular, Ofcom considered that despite the partially obscured nature of the images, viewers would have been left with the clear impression that penetration by the bottle had occurred in the first scene and that penetration by dildos had occurred in the third scene.
In any event, this material clearly constituted at the very least ‘adult sex material’ – i.e. images of a strong sexual nature that were broadcast for the primary purpose of sexual arousal and should not therefore have been broadcast without mandatory restricted access.
Ofcom notes that the Licensee alerted the regulator of the compliance error the day after the broadcast and acknowledged that it was a potentially serious mistake, before a complaint was received by Ofcom. Ofcom welcomes the proactive stance of Playboy with regard to this matter.
However, this is a serious breach of the Code. Material equivalent to BBFC R18 content must not be broadcast at any time. As a result, the Licensee is put on notice that this present contravention of its licence is being considered for the imposition of a statutory sanction.
Breach of Rule 1.17
- RHF Productions Ltd dated 18 May 2009 (http://stakeholders.ofcom.org.uk/binaries/enforcement/content-sanctions-adjudications/rhfportland.pdf)
- Portland Enterprises (C.I.) Limited dated 23 July 2008 (http://stakeholders.ofcom.org.uk/binaries/enforcement/content-sanctions-adjudications/portland.pdf)
- Gamecast UK Ltd dated 17 January 2007 (http://stakeholders.ofcom.org.uk/binaries/enforcement/content-sanctions-adjudications/gamecast.pdf)
Electronic Arts (“EA”) branding during Premier League football coverage
Sky Sports 2, 11 September 2010, 12:30
On 11 September 2010 Sky Sports 2 broadcast live coverage of the Premier League fixture between Everton and Manchester United. In the course of the game and the pre- and post-match comment, graphic on-screen displays of statistics and match facts appeared in total 14 times. For example, each time a goal was scored, an on-screen graphic appeared, indicating the time of the goal. Other graphics included data on shots on goal, numbers of corners, and so on.
On each occasion that such an on-screen graphic was displayed, it was accompanied by a logo for Electronic Arts (“EA”), a maker of video games.
A complainant objected to the EA branding, saying that it was “irrelevant”, “unnecessary” and “blatant”. Ofcom initially sought information on EA’s role in connection with the match data, and any contractual arrangements relating to the appearance of the on-screen branding.
Sky confirmed that the branding did not result from any programme sponsorship arrangements it had entered into with EA. Ofcom therefore considered Sky’s formal comments under the rules in Section Ten of the (September 2010) Code (-1-), and in particular:
Rule 10.3 Products and services must not be promoted in programmes;
Rule 10.4 No undue prominence may be given in any programme to a product or service; and
Rule 10.5 Product placement is prohibited (-2-).
Sky explained that EA was contracted to the Premier League (“PL”) as the ‘Official Sports Technology Partner’. Sky understood that this arrangement included sponsorship of the PL itself, a sponsor presence at matches and in other PL controlled properties, including in the overseas broadcast feed.
Sky stressed, though, that it had no contractual agreement with EA in respect of the on-screen credits.
Sky’s contract with the Premier League
The broadcaster said that, as part of its contractual agreement with the PL for the live broadcast of certain PL matches, it: “is required, subject to applicable laws and the Ofcom codes, to provide an on-screen credit for the ‘official technology partner’”. It went to say that “This credit must be included in Sky’s live broadcasts as part of the Sky Sports channels, and in the overseas world feed of all matches produced by Sky…”.
The broadcaster said that when, “at Sky’s election”, match statistics were shown it provided a credit for EA as official technology partner of the PL. Such credits are provided subject to EA “making available the required technology to facilitate the display of player or match statistics, and in all cases subject to Ofcom’s codes.”
Sky supplied relevant extracts of its contract with the PL.
Sky said that it maintained its independence of editorial control at all times, including where credits were given for EA or any other PL sponsor.
Sky told us that there was nothing in its agreement with the PL requiring the inclusion of the EA credit. Rather, the agreement provided that, should Sky make use of the statistical data provided by the PL, it “include an appropriate reference to the PL’s ‘official technology partner’”. Further, Sky said, its obligations to the PL “are subject to an express reservation in respect of Sky’s obligations under the Code”.
Sky said that each use of player and match statistics was editorially justified and was not influenced by any other consideration.
Sky submitted that, were it to be prevented from using the statistics – because, for example, Ofcom were to find the inclusion of the EA branding in breach of the Code – it would, in Sky’s view, represent a significant reduction in the quality of coverage and in its viewers’ enjoyment of the game.
Sky was of the view that the EA branding was not promotional. The broadcaster referred to parts of Ofcom’s guidance on this rule:
“For the purpose of this rule, products and services are promoted where there is a clear “sell”. This can occur, for example, where information is provided about prices or other specific attributes of the product”; and “Not all references, even where they are positive or favourable, are “promotional” in the context of this rule”
No specific product or service was mentioned, Sky said, and no ‘sales’ messages or the like were present. For these reasons, Sky did not consider that Rule 10.3 had been breached.
Sky acknowledged that, “on this occasion, the application of the EA on-screen credit should have been subject to greater editorial judgement given the high-scoring nature of this particular game, which meant the credit was displayed on a higher than normal number of occasions”. Sky accepted that its editorial policy in that respect should be “clarified”.
Even so, it said, the EA branding was in line with that adopted by other broadcasters covering sport. Sky drew attention to Ofcom’s guidance on Rule 10.4, which includes the following:
“Editorial justification will depend on the nature of the programme and there may be certain types of programmes – e.g. sports and music coverage in television programmes – where there is a general acceptance that brands will feature.”
Further, Sky said, technical provider credits may be reflected in broadcast coverage. However, in subsequent correspondence, Sky clarified that EA was not a technology or technical provider in this case – EA does not, for example, gather data on football matches. (A different company part-owned by the PL does that job). Sky also said that it generates its own data for use in its broadcasts and other services.
More generally, Sky told us that Ofcom’s guidance on undue prominence – which advises against products’ appearances being the subject of negotiation or agreement – could not be intended to preclude the sort of contractual arrangements entered into by Sky and the PL. To do so, Sky said, would prohibit the appearance of editorially justified branding, for example during post-match interviews in front of heavily branded hoardings. Instead, it was Sky’s view that the application of this guidance should be limited to circumstances in which the exact nature of exposure for a brand in a programme might have been arranged, akin to product placement.
Sky stated that: “…notwithstanding Sky’s view that, on this occasion, there were too many EA on-screen credits, Sky does not consider that the manner in which the EA on-screen credit appeared was unduly prominent. The logo only appeared with relevant data and for a maximum of 4 seconds at a time…this is the first year that the PL has had an ‘official technology partner’, and therefore the event branding may have greater prominence as compared to broadcast coverage in previous seasons.”
Sky explained its view that “there were too many references to the EA on-screen credit due to a lack of appreciation for the risks involved in the mechanical application of the credit in a high scoring game such as this one (which ended 3-3)”. Sky submitted that it had therefore revised its editorial policy to ensure that, in future “the EA on-screen credit will not be applied in a mechanical fashion to all uses of the relevant statistical data in order to minimise the risks of any potential infringement of Ofcom’s codes”.
Sky pointed to the current Code’s definition of product placement: “Product placement is the inclusion of, or a reference to, a product or service within a programme in return for payment or other valuable consideration to the programme maker or broadcaster (or any representative or associate of either).”
Given this, the broadcaster argued, the EA branding could not amount to product placement as Sky had received no consideration and that the exposure of the brand was a function of the event organiser’s sponsorship arrangements.
Ofcom accepts, as our guidance to Section Ten of the Code indicates, that sports coverage is a genre in which branding and general commercial exposure can be expected. In our view, audiences generally accept and understand that branding associated with advertising and the sponsorship of professional sport is part and parcel of that industry.
In that respect, for example: there is more likely to be sufficient editorial justification for a post-match interview to be conducted in front of venue advertising or sponsorship hoardings in sports coverage, than in other types of programme genres. Logos and branding on players’ kits, and on display around a pitch, track or venue are also common. However, under the current Code, the scope for an Ofcom licensee to transmit sports programming in which it has elected to add branding - such as in on-screen graphic elements - is extremely limited.
As Sky noted, Ofcom (like its predecessor, the ITC) has considered that, in certain circumstances, there is sufficient editorial justification for broadcasters to show brief and limited credits for companies who provide technical services to sports events and coverage. For example, the display of the names of companies who supply timing services when lap times, finishing times and so on are shown.
However, Ofcom notes that in this case, according to Sky, EA was not a technical supplier in that sense. Instead, EA’s role was the ‘Official Sports Technology Partner’ of the PL, subject to a contractual arrangement between EA and the PL (to which Sky confirmed it was not party to).
As such, the on-screen credits had arisen as a result of Sky’s contractual arrangement with the PL. On the basis of Sky’s representations, Ofcom accepted that the credits were not broadcast in return for payment or other valuable consideration to Sky or its associates. Therefore, Rule 10.5 (prohibition of product placement) was not breached.
Rules 10.3 and 10.4
Ofcom noted that the contract between the PL and Sky in relation to the “official technology category” and the display of player or match statistics stated that Sky must “ensure that on-screen credit is given to the PL sponsor [EA]...”. We accept Sky’s submission that its obligations to the PL were subject to “an express reservation in respect of Sky’s obligations under the Code”. The situation appeared to accord with Sky’s explanation that the on-screen credits were displayed “at Sky’s election”.
However, in Ofcom’s view, the inclusion of the logo could not be described as an editorially justified means of indicating to the audience who had been the technical provider of the statistical information in question. In light of the fact that EA was not a technology or technical provider of the statistical data in question (notwithstanding any funding arrangements between EA and the PL in respect of the provision of such data), Ofcom did not accept that there was any editorial justification for Sky to elect to add the EA logo to its coverage.
Ofcom was of the view that the inclusion of the EA logo arose solely from the relevant contractual arrangements that were in place between the PL and EA and between the PL and Sky. Ofcom therefore concluded that, in the absence of any editorial justification, and in view of the inclusion of the logo arising from these contractual arrangements, the only purpose it could serve was to promote EA’s name and trade mark. On this basis, Ofcom concluded that Rule 10.3 had been breached.
In addition, Ofcom judged that the repeated appearance of the logo – 14 displays of it across the programme - gave undue prominence to EA, in breach of Rule 10.4. Further, Ofcom was of the view that the extent of this undue prominence was such that it, in itself, amounted to the promotion of EA, further underlining the breach of Rule 10.3.
Ofcom considered it relevant that, on 26 October 2009, Ofcom recorded a breach of Rule 10.3 in a case involving the appearance of commercial branding in Sky’s cricket coverage (-3-). Although that case differed from the current case in that the former concerned a logo displayed under an agreement made directly between Sky and a commercial third party, it nevertheless resulted in similar broadcast content: during sports coverage, a commercial third party’s logo was displayed when technical data was presented on-screen graphically. A breach of Rule 10.3 (promotion) was recorded in that case.
On 28 June 2010, following the UK Government’s decision to permit product placement, subject to certain safeguards, Ofcom issued a Code Review consultation on the rules relating to commercial references in television programming.
As well as proposing rules to permit product placement to reflect EU and UK legislative changes, we proposed related revisions to other Code rules that we considered were impacted by the introduction of product placement, such as sponsorship. In particular, we proposed that limited sponsorship credits (e.g. a sponsor’s logo with a brief association statement) be allowed during programmes (see Part 5 of the consultation document (-4-)).
Breaches of Rules 10.3 and 10.4
2.- On 20 December 2010, Ofcom published new rules that allow, subject to restrictions, product placement in programmes. These rules come into force on 28 February 2011. Until this date, programmes must comply with the existing rules, which include a prohibition on product placement. Further information on the new rules can be found at: http://stakeholders.ofcom.org.uk/consultations/bcrtv2010/statement/
6.- As noted in footnote 2 above, Ofcom issued its statement and a revised Section Nine of the Code (Commercial references in television programming) on 20 December 2010. The new rules do not come into force until 28 February 2011. Until that time, Sections Nine (Television) and Ten (Television) of the December 2010 Code remain in force.
Kundli Aur Kismat (Future & Fortune)
Sunrise TV, 20 July 2010, 14:00 to 16:00
Kundli Aur Kismat ( Future & Fortune) is a two-hour astrology show on Sunrise TV, a general entertainment channel for the UK Asian community. The programme invites viewers to call in using an 0845 number to receive on-air astrological readings. Numbers with an 0845 prefix are relatively low cost, attracting geographic call rates if rung from a BT landline.
A viewer complained that on ringing the programme on the 0845 number he was told that he would need to pay £30 by debit or credit card to receive a reading. The programme had said nothing about the charge.
On viewing the programme, we noted that the programme’s presenter made numerous verbal invitations to viewers to call in. In addition, a large on-screen banner was displayed for about six minutes at the end of the first hour of the programme, and another was shown throughout the second hour. The earlier banner displayed the 0845 number, the programme’s name and the words ‘Live Entertainment’; the later banner was identical but also contained text saying ‘Phone lines are open till 5pm’.
Ofcom sought information and comments from Sunrise TV, under the rules within Section Ten of the Code (-1-), including Rules 10.2 and 10.3:
Rule 10.2 Broadcasters must ensure that the advertising and programme elements of a service are kept separate;
Rule 10.3 Products and services must not be promoted in programmes.
In particular we sought comment in respect of the degree of promotion given to the paid-for readings and their availability to viewers at times when the programme was not on air, including for an hour after the programme’s close.
Sunrise initially responded to Ofcom arguing that the readings qualified as programme-related material (“PRM”). Ofcom therefore sought further comment on the conformity of the programme and the readings with the rules on PRM, mindful that the Code defines PRM as “…products or services that are both directly derived from a specific programme and intended to allow listeners or viewers to benefit fully from, or to interact with, that programme.”
The broadcaster explained that at the time of the complainant’s call the programme was using a comparatively low cost 0845 number, and not a much more expensive premium rate number. It had wished to use a premium rate number but had discovered that a live chat service of this sort requires prior permission from the premium rate regulator PhonepayPlus (PPP). During the time that its request for prior permission was being processed, the broadcaster chose to use the 0845 number and charge callers for the reading by other means.
Sunrise TV further explained that the maximum charge that can be applied to a premium rate phone call is £30. This was therefore the amount it charged callers using the temporary 0845 route. Payment was requested when a call was received and was made generally either by debit or credit card, the broadcaster said, although in some rare circumstances payment was made through money transfer.
Callers were told immediately on getting through to the 0845 line that a charge of £30 was payable if they wished to have a reading. Documentation supplied by the broadcaster showed that 75 calls were answered during the course of the programme on 20 July 2010, of which 25 callers agreed to pay the charge of £30. For those that declined the charge, the call was terminated.
The broadcaster said further that the number of callers put through to the show is managed to ensure that all those who wish to receive a live reading on air will get one. In some rare cases callers to the show agree to the charge but for their own reasons to do not want the reading live on air. In these circumstances, Sunrise TV said, the presenter will call back after the show and give the reading off-air.
Sunrise TV said that the presenter is paid to host the show and receives no additional payment from the charges that are made to those that call in. Sunrise TV receives all of the money that is generated by the charges made to callers. Advertising and programming were kept distinct, the broadcaster argued, as using a telephone number, whether of a relatively low rate as in this case, or premium rate, is an accepted way of encouraging interaction with viewers and is part of the programme. Further, it submitted that the programme’s advertising breaks were clearly separated from editorial content.
As to the prohibition on promoting products or services in programmes (Rule 10.3), Sunrise TV said that the use of the 0845 number was an integral part of creating a link with the audience. As such, the broadcaster was of the view that the promotion of the astrological reading service was programme-related material (PRM) and therefore fell into the exemption from the requirements of Rule 10.3. Similarly, the broadcaster said, because there was no promotion of a product or a service, there was no undue prominence and Rule 10.4 did not apply.
In response to questioning about the degree of promotion given to the 0845 number, the broadcaster stressed that as Kundli Aur Kismat is an interactive programme “trailing the contact details in an integral part of that”. That viewers were encouraged to call for an hour following the show was, Sunrise TV told us, a means of creating programme material for the next broadcast: “the gist of the topics raised in such readings is often used as an initial discussion topic in the following show”.
In making the decision to charge at the point of viewer contact, Sunrise TV said that it had taken note of the obligations imposed under the Code, in particular the definition of PRM. In this case, the show’s viewers were encouraged to participate in the show and the readings given to those participants formed the core of the programme, though not necessarily the entire programme which also included more general presenter discussion of the subject.
Sunrise TV said it had formed the view that the charges made were not a relevant factor in determining whether or not the service offered was PRM. Neither did the broadcaster consider the scale of the charges applied to be relevant to the Code position of live interaction with the show, provided that the charges did not impact on the editorial integrity of the show. Sunrise TV took the view that the service offered was directly derived from the show and it allowed viewers to participate in it. As such, in Sunrise TV’s view, the service satisfied the Code’s definition of PRM. The broadcaster told us that it had relied on the definition of PRM contained within the Code when it set up the mechanics for the viewer interaction within this programme. Sunrise TV did not see a distinction between this interaction taking place during the broadcast or at other times.
Generally, Sunrise TV acknowledged that in order to participate in the show callers were required to pay a charge, but it was not aware that the Code prohibits this practice. The broadcaster said that callers were not obliged in any way to accept the charge and if they did they were guaranteed to participate. A premium rate number has been used since the beginning of September following the grant of permission by PPP.
Sunrise TV stressed that it treats all complaints seriously and endeavours to ensure that it complies fully with the Code. It said that this particular show has proved popular with the audience generally by offering a unique format to its Asian audience. Sunrise stated that it and the presenter are conscious of the potential difficulties with the format of this show, particularly given that it is broadcast live, and strive to deliver advice that satisfies both the audience and the Code.
The guiding principle behind Section Ten of the Code is that commercial references in programmes should not compromise the editorial independence of the broadcaster. Viewers must be able to listen to and watch programming confident that what they are presented with is the product of an independent editorial voice.
The principle of prohibition of commercial distortion of programming applies to broadcasters’ own commercial activity as much as to that of others. One aim of Section Ten is therefore to ensure that the promotion of products and services is excluded from programming (Rule 10.3). As set out in the Code, there is a specific exemption from this rule for the provision of programme-related material (PRM). The Code defines PRM as:
“…products or services that are both directly derived from a specific programme and intended to allow listeners or viewers to benefit fully from, or to interact with, that programme.”
This definition follows that set out in European law, the Audiovisual Media Services Directive. Recital 99 explains that PRM should be both additional to a programme and directly derived from it:
“[PRM] should be limited to announcements concerning products that fulfil the dual condition of being both ancillary to and directly derived from the programmes concerned. The term ‘ancillary’ refers to products intended specifically to allow the viewing public to benefit fully from, or to interact with, these programmes.”
PRM therefore applies to supplementary products and services derived from a programme and from which the consumer benefits outside of their viewing experience of the programme itself – for instance, books and CDs derived from programmes, and podcasts and web pages that provide discussion or information further to the programme and that viewers can themselves sometimes contribute to.
Services provided to viewers during the course of a programme itself cannot therefore be descried as PRM.
In addition to the exemption from Rule 10.3 for PRM, premium rate telephone services (“PRS”) have long been a further qualified exception to the general prohibition of the promotion of products or services in programmes. The reasoning behind this exception is that communication between viewers and broadcasters or programme makers is a natural and desirable addition to broadcasting and PRS – if properly used and clearly priced – can be justified for use in programmes in that way.
However, the technique of soliciting payment by debit and credit cards cannot be justified by reference to the charges that could have been applied (and subsequently have been) by means of a PRS. Furthermore, a broadcaster cannot make an unacceptable ‘sell’ of a product or service comply with the Code by showing that it could have been charged for by means of a PRS.
In any event, there has always been a need for PRS to be used in a manner that is editorially justified – see the Note at the end of this Finding for further guidance on this subject.
Ofcom therefore noted that this case did not involve PRS, and the astrological reading service in question did not meet the definition of PRM. Furthermore, we took into account that viewers could receive readings off-air, and indeed were encouraged to call for readings for an hour after the programme had finished. As such, Ofcom concluded that the programme promoted a commercial service, and was therefore in breach of Rule 10.3.
Further, we judged that the extent of the encouragement to call and the availability of the service outside of the programme amounted to the advertising of a service in programming. The programme was therefore also in breach of Rule 10.2.
Breaches of Rules 10.2 and 10.3
Note to Broadcasters
Although there is some latitude for PRS in programmes under the Code, they must nevertheless be editorially justifiable. This requirement is especially acute where interaction is charged for by higher priced premium rate telephone calls.
On 1 September 2010 (therefore some weeks after this programme was transmitted) revisions to Section Ten came into force that clarified the need for the promotion of PRS in programmes to be clearly subsiduary to the programme’s editorial purpose. The changes to the Code and Guidance arose from the Ofcom Regulatory Statement Rules on the promotion of premium rate services (-2-).
Guidance published at the same time contains extensive advice on the Code’s new, more detailed requirements. This advice discusses, among other things, the relative balance of the PRS and other elements of a programme, the extent of the promotion of the PRS and the cost of the PRS.In that respect, Ofcom wishes to make clear that programmes apparently wholly or mainly formulated to take advantage of premium rate revenues are likely to be in breach of the Code, or to require re-classifying by licensees as teleshopping (i.e. advertising) in the form of ‘participation TV’ (PTV). In the latter case, programmes must meet the requirements for teleshopping and licensees may need to adapt the item’s format accordingly. Also, broadcasters must make absolutely clear to the audience that what they are watching is advertising material. Special rules apply to ‘psychic’ teleshopping: see BCAP Code Section 15 (-3-) and the Ofcom statement referred to in footnote 2 of this Finding.
3.- Available at http://www.cap.org.uk/The-Codes/BCAP-Code.aspx?q=test
JC Halliday sponsorship of Instant Traffic and Travel
Q97.2, 21 October 2010, 08:30
Q97.2 is a local radio station that broadcasts to the Coleraine area in Northern Ireland. Its travel update bulletin featured a sponsorship credit by a local branch of a garage firm, JC Halliday, which contained the following claim.
“JC Halliday Bushmills, 20% cheaper than Kwik Fit: Oil and filter special only £39.99.”
A complainant claimed that this comparison was inaccurate and that Kwik Fit charged less than the sponsor for certain oil and filter changes.
Rule 9.3 (-1-) of the Code states: “Sponsorship on radio and television must comply with … the advertising content … rules that apply to that medium.”
Rule 3.9 of the BCAP Code (-2-) states: “Broadcasters must hold documentary evidence to prove claims … are capable of objective substantiation.”
Rule 3.33 of the BCAP Code states: “Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.”
Ofcom asked Northern Media Group, the owner of Q97.2, and the sponsor, for its comments under these rules.
Northern Media Group accepted that the sponsor credit did not meet the standards required by these rules and said that approval for this particular credit was overlooked, owing to the relocation of its production department, which is based at one of its other radio stations, Q102.
The broadcaster explained that “due to the upheaval of the office move, a member of staff incorrectly sent the tag [sponsorship credit] to be broadcast before it was finally signed off.” It added that the “tag was played on four occasions, all on 21 October 2010” (between 07:20 and 08:40) and upon discovering the error, it immediately removed the sponsorship credit from further broadcast.
With regard to Rule 3.9 of the BCAP Code, the broadcaster admitted that it did not hold documentary evidence of the claim made in the sponsor credit prior to its broadcast. However, it stated that it was in the process of obtaining this, having already received some relevant documentation from the sponsor. It added that obtaining documentary evidence prior to broadcast was part of its normal internal approval procedures, which, in this case, were overlooked.
Northern Media Group wished to point out Q97.2’s “previous good record in regard to advertising rules and codes”.
JC Halliday said it was not its “goal to wrongly advertise”. It argued that its own research found that the price quoted by Kwik Fit for an oil and filter change for one specific make of vehicle was £49.95. The sponsor acknowledged that it charged the same price as Kwik Fit for oil and filter changes on other makes of vehicle but added that this was due to Kwik Fit having “different prices for different grading of oil”, of which it had not been aware at the time it had conducted its research.
Ofcom did not consider that the cost difference quoted in the sponsorship credit for an oil and filter change for one particular make of vehicle was representative of general price differences. By JC Halliday’s own admission, the difference in cost varied considerably, depending on a number of factors.
Since all oil and filter changes by JC Halliday were not 20% cheaper than those carried out by Kwik Fit, as the sponsorship credit claimed, Ofcom concluded that the credit was likely to have misled listeners, in breach of Rule 3.33 of the BCAP Code.
Ofcom noted that procedural failures led to Q97.2 holding no documentary evidence in support of the sponsor’s claim that its “ oil and filter special” was “ 20% cheaper than Kwik Fit”. Holding appropriate substantiation prior to the broadcast of advertising claims is an important means by which to ensure consumer protection. In this instance Q97.2 did not hold documentary evidence to support fully the sponsor’s claim, in breach of Rule 3.9 of the BCAP Code.
As the sponsorship credits breached BCAP Code requirements, they were also in breach of Rule 9.3 of the Code, which requires that sponsorship must comply with advertising content rules.
Ofcom noted Northern Media Group’s explanation of how the sponsorship credit had been broadcast erroneously on four occasions, and its acceptance that it had not complied with relevant rules. We welcomed Q97.2’s swift removal of the sponsorship credit from the schedules as soon as it became aware of its error. Nevertheless, Ofcom expects the broadcaster to ensure that appropriate contingencies are in place to ensure consistent Code compliance in the future.
Breach of Rule 9.3 of the Code
Breaches of Rules 3.9 and 3.33 of the BCAP Code
1.- This case was considered by Ofcom under the September 2010 Code (which was in force at the time of this broadcast). Broadcasters should note that, as of 20 December 2010, a new version of the Code is now in force, and in particular, a new Section Ten: Commercial communications in radio programming. Full information is available at: http://stakeholders.ofcom.org.uk/consultations/bcrradio2010/statement/
2.- The UK Code of Broadcast Advertising, which can be found at:
Comedy Circus KE Superstars
Sony Entertainment Television Asia, 20 October 2010, 15:00
Sony Entertainment Television Asia (“SET Asia”) is a general entertainment channel aimed at a UK-based Asian audience. Comedy Circus KE Superstars is a stage-based comedy sketch show.
Ofcom received a complaint about references to Vodafone within the programme, which the viewer believed to be product placement.
On reviewing the material, Ofcom noted that Vodafone appeared to be the sponsor of the programme, and branding for the company appeared on the programme set and during on-screen graphics.
In addition, Ofcom noted that on one occasion during the programme, while the female presenter was talking, a caption appeared which read “Jewellery Sponsored By Silver Queen”.
Ofcom asked SET Asia how the material complied with the following Code rules in Sections Nine and Ten (-1-):
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 10.4 No undue prominence may be given in any programme to a product or service; and
Rule 10.5 Product placement is prohibited.
The broadcaster said that Comedy Circus KE Superstars had not been scheduled to be broadcast. However, the previous programme had finished early and Circus KE Superstars was transmitted as an additional programme, in error.
SET Asia said all of its programmes are sourced from its parent channel in India which are then edited in India to ensure they comply with Ofcom’s regulations.
SET Asia said it has taken steps to remind staff that such mistakes must be avoided in the future, including refresher training for the editing team and “strict monitoring procedures” at the transmission stage for a second compliance check in the UK.
The broadcaster said that no payment or other valuable consideration was received by its Indian parent company for the reference to the jewellery.
Rule 9.5 of the Code prohibits any promotional reference to the sponsor, its name, trademark, image, activities or products. It also prevents non-promotional sponsor references within programme that are not editorially justified and incidental.
In this case, the Vodafone branding in graphics and on the set during this programme identified the sponsorship arrangement. As such, they had clearly been placed deliberately by SET Asia’s parent channel in India, and could not be described as incidental.
Rule 10.5 of the Code prohibits product placement. The Code sets out that, for the purposes of this rule, arrangements covering the inclusion of products or services in a television programme acquired from outside the UK (and films made for cinema) are not considered to be product placement, provided that no broadcaster regulated by Ofcom and involved in the broadcast of that programme (or film) directly benefits from the arrangement.
Ofcom noted that in this case the broadcaster noted its parent company did not receive any payment or other valuable consideration for the reference to the jewellers. Its broadcast on SET Asia was therefore not in breach of Rule 10.5.
However, Rule 10.4 makes clear that “undue prominence” may result from:
- the presence of, or reference to, a product or service in a programme where there is no editorial justification; or
- the manner in which a product or appears or is referred to in a programme.
In this case, there was no editorial justification for the on-screen caption referring to the supplier of jewellery worn by the presenter.
Ofcom notes that the programme’s transmission on SET Asia occurred due to an error. Further, we note the steps taken by SET Asia as a result of the broadcast, including further training for the compliance team in India and a second stage of compliance in the UK.
While we have concerns about the broadcast of this material, in light of the actions taken by the broadcaster and its good compliance record in this area Ofcom considers this matter resolved.
In Demand with Luke Wilkins
Kerrang! Radio, 10 November 2010, 19:15
Kerrang! Radio is a station that specialises in rock music. The station regularly runs a feature called “Hot or Not” in which two songs are played and listeners are invited to vote for their favourite. Listeners can submit their vote via email, the broadcaster’s Facebook page, or by premium rate text message costing 25 pence.
Ofcom received a complaint from a listener about the feature broadcast on 10 November 2010. The complainant was concerned that, during the feature, the presenter had disqualified one of the songs and cancelled the vote, allegedly because he suspected the band in question was using the vote for publicity purposes. The complainant considered the presenter’s actions were unfair given that some listeners had already paid to cast their vote.
Ofcom therefore sought comments from Bauer Media (“Bauer”), the owner of Kerrang! Radio, under Rule 2.14 of the Code which states that:
“Broadcasters must ensure that…listeners are not materially misled about…voting.”
Bauer said that the presenter had no authorisation to cancel the vote and when questioned, could offer no justification for doing so. It accepted that this raised compliance issues with regard to Rule 2.14 of the Code.
The broadcaster subsequently took disciplinary action against the presenter and began contacting the 32 listeners who had voted by text message, to arrange a refund and invite them to a future live event by way of apology.
In order to avoid a recurrence, Bauer said that Kerrang! Radio had “since reminded all presenters of the Ofcom Broadcasting Code and their responsibilities and has reiterated the processes to be followed by all presenters on air.”
Audiences pay to participate in voting exercises on the basis that their vote contributes to determining an outcome. Rule 2.14 requires broadcasters to be transparent when explaining how votes influence the result so that viewers and listeners can make an informed decision about taking part.
On this occasion, listeners were invited to vote on the basis that the song that obtained the most votes would be declared the winner but owing to the presenter’s decision to disqualify one of the songs, this did not happen. As listeners’ votes did not contribute to the outcome as advised, Ofcom considered that those who had paid a premium rate to place their vote were materially misled by the promotion of this exercise.
However, Ofcom accepted that this incident occurred due to the presenter’s actions rather than a decision to cancel the vote by the broadcaster’s management, and as such, it had not been the broadcaster’s intention to deliberately mislead its audience. We also noted the swift remedial action taken to refund listeners who had voted by text message. Ofcom therefore considers the matter resolved.
The full document (Advertising Scheduling Cases / Other Standard cases / Fairness & Privacy cases) is available below