Broadcast Bulletin Issue number 176 21/02/11
BBC News at Ten, Qanooni Mashwary, Leah Smith Drive Time, Breach of Licence Condition and Complaints
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.
BBC News at Ten
BBC1, 23 November 2010, 22:00
This news item reported on the announcement made earlier that day that Prince William and Kate Middleton would marry at Westminster Abbey on Friday 29 April 2011.
The item was introduced by News at Ten presenter, Huw Edwards, who handed over to the royal correspondent, June Kelly, live at Westminster Abbey. June Kelly then introduced a pre-recorded news package for this story.
The pre-recorded package included a clip of Prince William and Kate Middleton’s photo call at St James's Palace on the day their engagement had been announced the previous week. This clip contained flashing images, caused by flash photography of the couple and of Kate Middleton’s engagement ring.
Ofcom received a complaint from a viewer who has photosensitive epilepsy (“PSE”). The complainant was concerned about the amount of flashing images broadcast during the news report and the distress these images could potentially cause to photosensitive viewers. The complainant was particularly concerned that the report contained no warning during or before its broadcast.
Certain types of flashing images present a danger of triggering seizures in viewers who are susceptible to PSE. Rule 2.12 of the Code therefore requires that:
“Television broadcasters must take precautions to maintain a low level of risk to viewers who have photosensitive epilepsy. Where it is not reasonably practicable to follow the Ofcom guidance (see the Ofcom website), and where broadcasters can demonstrate that the broadcasting of flashing lights and/or patterns is editorially justified, viewers should be given an adequate verbal and also, if appropriate, text warning at the start of the programme or programme item”.
Ofcom carried out a technical assessment of the flashing images in this news report and found some potentially problematic material. Ofcom therefore wrote to the BBC and asked it to comment with regard to Rule 2.12.
The BBC agreed that this news report should have been preceded by a warning. It said that it did identify a problem with the flashing images in this footage and “an appropriate warning was given by the presenter in the earlier bulletin at 6 o’clock”. It said that the news package in the ten o’clock bulletin was not introduced by the bulletin presenter but by a reporter on location at Westminster Abbey. It explained that the reporter on location “should have been instructed to include a warning in her remarks but, unfortunately, this did not happen”. The BBC apologised for this oversight.
The BBC said that it “wishes to stress, however, that the fact of an oversight on this occasion should not be taken as evidence that it does not take this issue seriously”, and that “appropriate measures were taken to analyse the footage and identify that there were issues relating to it and that a warning was appropriate”. It said that the oversight “lay in this not being communicated to the reporter on location”. The BBC stated that “since this incident, news teams have been reminded of the importance of making sure that sufficient warnings are given in every case”.
Given the significant potential harm that can result in viewers with PSE who are exposed to flashing images, Rule 2.12 makes clear that Ofcom expects broadcasters to maintain a low level of risk in this regard.
Further, Ofcom’s Guidance in this area (-1-) (and the annexed Guidance Note on flashing images which is based on scientific research), are intended to limit the incidence of seizures. The guidance states that “a warning should only be used in place of the guidelines, if editorially justified”.
Ofcom tested this programme against its published Guidance concerning PSE. It found that the sequence involving the flash photography of the couple, and images of Kate Middleton’s engagement ring, contained 13 seconds of flashing where the brightness transitions (‘flashes’) exceeded the “intensity” limits as set out in the Guidance. The sequence contained flashing at an average rate of approximately 11 flashes per second (the limit in Ofcom’s Guidance being no more than three flashes per second). Ofcom noted the BBC’s acceptance that the material did not comply with the appropriate PSE standards.
Ofcom then considered whether there had been sufficient editorial justification for the broadcast of this material. In this case, we noted that the material in question was pre-recorded, but we considered that there was nevertheless editorial justification for including this news item in this report. In these circumstances, appropriate warnings should be given to viewers, as required by Rule 2.12. Ofcom considers that warnings of this type may assist viewers with PSE to avoid instances of flashing images that the broadcaster cannot reasonably control.
We noted that the BBC had taken appropriate measures to check the item, and had identified it as being problematic in advance of its transmission. The BBC had apologised for not including an appropriate warning on this occasion.
Ofcom acknowledges that the omission of a warning was as a result of human error on this occasion, and that the BBC news teams have taken additional compliance measures in response to this. However, the omission of a warning in circumstances where the BBC was aware the material was problematic is a matter of concern to Ofcom, and we do not expect a recurrence.
Breach of Rule 2.12
Ahlebait TV, 16 September 2010, 19:00
Ahlebait TV broadcasts news, current affairs and entertainment programmes from an Islamic perspective.
Ofcom received a complaint that during a call-in programme about legal issues, a permanent caption was displayed on screen which gave out contact information and the names of the solicitors presenting the programme, from Denning Solicitors. The caption read:
“Qanooni Mashwary, Live call: 0208 900 1742, Erian K Reilly, Solicitor Advocate, Zeeshan Saqib Mian, Solicitor Advocate, Denning Solicitors, Brought to you by Charles Edward College”.
Ofcom asked Ahlebait TV to clarify whether the programme was sponsored by Charles Edward College; and on what basis the references to the college and Denning Solicitors were included in the programme. Ofcom also asked how the material complied with the following Rules under Section Ten (-1-) of the Code:
Rule 10.3: “Products and services must not be promoted in programmes”; and
Rule 10.4: “No undue prominence may be given in any programme to a product or service”.
Ahlebait TV said the programme was not sponsored by Charles Edward College but said the caption was included by mistake as the result of an error by a trainee member of staff. The broadcaster said this individual had been suspended and that the programme had also been suspended. The broadcaster apologised for this mistake and assured Ofcom that such an incident would not happen again.
Ahlebait TV said the reference to Denning Solicitors was included only as a factual credit to name the firm the presenters worked for. The broadcaster said it had no commercial arrangement with either Denning Solicitors or Charles Edward College.
One of the fundamental principles underpinning Section Ten (Commercial References and Other Matters) is to ensure that the broadcaster maintains independent editorial control over programme content, and that programmes are not distorted for commercial purposes.
Ofcom noted that Ahlebait TV admitted that the reference to Charles Edward College was made in error by a trainee member of staff. There was no valid basis to mention the college, as it did not appear to be connected to the programme in any way. Without any editorial justification for the reference, and in view of the implication that the college had sponsored the programme, Ofcom concluded that this reference amounted to a promotion for the college, in breach of Rule 10.3. The fact this caption was on screen throughout the programme made the reference unduly prominent and in breach of Rule 10.4.
In relation to the reference within the caption to the legal firm with which both of the programme’s hosts were associated, Ofcom accepts that such credits can assist in identifying a presenter or guest’s experience and profession. However such references must be appropriately limited and brief. In this case, however, the visual reference to Denning Solicitors appeared on-screen throughout the programme and was therefore unduly prominent, in breach of Rule 10.4.
Breaches of Rules 10.3 and 10.4
Leah Smith Drive Time
Somer Valley FM, 1 December 2010, 15:50
Somer Valley FM is a community radio station serving the communities in and around Midsomer Norton and Radstock in north east Somerset. Output is presented by volunteers. The licence is held by Somer Valley Community Radio Ltd (“Somer Valley”).
Ofcom received a complaint that a song played on the station included the word “motherfucker”. The listener felt such language was unacceptable at a time when children would be likely to be listening on their way home from school.
Ofcom asked Somer Valley for its comments under Rule 1.14 of the Code which states:
“The most offensive language must not be broadcast.... when children are particularly likely to be listening (in the case of radio).”
Somer Valley apologised “unreservedly” for any offence caused to listeners by the inclusion of this language and fully accepted the broadcast of the material was at odds with the Code.
The broadcaster said the track, “Do It Like A Dude” by Jessie J was requested by a young listener and played out. Somer Valley said the song should not have been on its music system in unedited form. It said this music system is intended for schools and community radio stations and highlights songs that contain explicit content with an advisory warning. Somer Valley said only a limited number of personnel at the station have access to this system or are allowed to load songs onto the station’s music library. However, the broadcaster said that, on this occasion, a volunteer who was aware the correct procedure was not being followed (and who has since left the station) accessed the station’s music library and downloaded the track into it. Since the incident, the station said only one computer now has access to the music library and that this is closely monitored.
Somer Valley said that, after the offensive language was aired, the song was faded out and replaced with another track before the presenter apologised.
Somer Valley said it “deeply regretted” the language was broadcast, given the station’s links to primary and secondary schools in the area, and that further compliance training has been given to volunteers at the station to ensure such an incident is not repeated.
Ofcom research on offensive language (-1-) clearly notes that the word “fuck” and its derivatives are considered by audiences to be very offensive. Such language is unacceptable when children are likely to be listening and the inclusion of the word “motherfucker” is clearly at odds with the requirements of Rule 1.14.
We note the compliance procedures in place at the station at the time of the incident to avoid such language were not adhered to, which resulted in the track being played out unedited at a time when children were likely to be listening.
However, Ofcom took into account that an apology was broadcast, and the station has a good compliance record. We also welcome the measures introduced to avoid any recurrence in the future. Given all of these circumstances, Ofcom considers this matter resolved.
1.- Audience attitudes towards offensive language on television and radio, August 2010 (http://stakeholders.ofcom.org.uk/binaries/research/tv-research/offensive-lang.pdf)
Broadcast Licence Condition cases
Breach of Licence Condition
Brick FM is a community radio station providing a service for the people of St Boswells, Newton St Boswells and the surrounding area in the Scottish Borders. It has been on air since January 2008 and the output is presented by volunteers. The licence is held by Brick FM Ltd.
The station’s licence includes as an annex a ‘key commitments’ document which sets out what the radio station is required to broadcast (which is based on the promises made by the station in its original application for the licence).
We have had some concerns regarding the output broadcast on Brick FM following a complaint from a listener, and have been corresponding with the station over an extended period of time.
In order to assess the delivery of the station’s key commitments we asked Brick FM Ltd on 27 April 2010 to provide us with recordings spanning four specified days with a request that specific key commitments be signposted. Some limited analysis of the recordings and signposting information was provided by the licensee but it was inadequate to enable us to properly assess whether the station was delivering against its key commitments.
On 20 August 2010 we again wrote to Brick FM Ltd indicating that further content sampling was required on the basis that we had not been able to verify from the information previously supplied that the station’s output was delivering against the key commitments we had specified. In recognition that the information we required would take some time to put together we gave the licensee a full calendar month to comply, i.e. by 20 September 2010.
On 10 September 2010 we were informed by the licensee that the studio had suffered a direct lightning strike which had damaged recording equipment. Brick FM Ltd was given a further deadline (1 November 2010) by which to provide us with the required recordings and information. On 3 November we received eight discs from Brick FM Ltd containing recordings of output broadcast on Brick FM. However, no supplementary information was provided signposting the specific key commitment delivery or indeed the dates or times of broadcast. As this information was material to us to determine whether Brick FM Ltd was delivering against its key commitments, we returned the discs to the licensee and asked that the recordings be re-submitted labelled with the supplementary information required.
Subsequently, the licensee informed us that the recordings and information we requested on 3 November had been sent to us on 13 December 2010. However, six weeks later, we still had not received this information. Brick FM Ltd failed to provide the requested recordings and supplementary information after being reminded by Ofcom that we still required them. We therefore asked the licensee for its comments with regard to Licence Condition 8(2)(b) contained in Part 2 of the Schedule of the licence which states:
“The Licensee shall:
8 (2) (a) make and retain, for a period of 42 days from the date of its inclusion therein, a recording of every programme included in the Licensed Service together with regular time reference checks.”
(b) at the request of Ofcom forthwith produce to Ofcom any such recording for examination and reproduction.”
Furthermore, after numerous reminders by Ofcom, the broadcaster failed to provide the information required and requested by Ofcom concerning our investigations into the delivery of the station’s key commitments. We therefore asked for its comments with regards to Licence Condition 9(1)(d) which states:
“The Licensee shall:
9 (1) (d) [provide] such information as Ofcom may reasonably require for the purpose of determining the extent to which the Licensee is providing the Licensed Service to meet the objectives and commitments specified in the Community Radio Order 2004”
The licensee said that “we make and retain for a period of 42 days a recording of output. Only on certain occasions do we give time and date, as the format of our station required the shows to repeat at different hours on different days by the request of Brick FM listeners on a 24 hour basis. At the request of Ofcom we have produced to Ofcom recordings for examination and reproduction.”
Brick FM Ltd added that it had “provided such information, for the purpose of determining the objectives and commitments specfice [sic] in the community radio order 2004. We have responded and fulfilled our agreement to the best of our abilities. Brick FM Ltrd [sic] has complied with the licence obligations referred to in respect of the matters outlined and therefore we believe [we] are not in breach of its licence.”
Ofcom notes that Brick FM Ltd has provided recordings in the past, including a DVD in January 2011. However, these were inadequately labelled and output was not described or sign-posted, or even dated. The DVD received on 7 January 2011 still did not meet the requirements of what we asked for. In addition, we still have not received the recordings and information that the licensee says was posted on 13 December 2010.
By failing to provide the recordings of output and the other information we have requested we have not been able to assess whether the licensee is delivering against its key commitments, which form part of its licence. Therefore we have not been able to reach a decision on the licensee’s compliance in this regard.
The failure by Brick FM Ltd. to supply the recording in this instance is a serious and significant breach of Condition 8(2) of its licence to broadcast and should there be any similar contraventions, Ofcom will consider further regulatory action.
Breach of Licence Condition 8(2) and 9(1) contained in Part 2 of the Schedule to the community radio licence held by Brick FM Ltd (licence number CR135)
Breach of Licence Condition
OnFM is a community radio station providing a service for the people of Hammersmith, west London, and has a particular focus on serving the local Irish community as well as other ethnic groups. It has been broadcasting since May 2008 and the output is presented by volunteers. The licence is held by OnFM Ltd.
The station’s licence includes as an annex a ‘key commitments’ document which sets out what the radio station is required to broadcast (which is based on the promises made by the station in its original application for the licence). In the programming section it says that “daytime output overall will typically comprise 40% music and 60% speech” and “by the end of the first 12 months on air, the service will typically be live, for at least 8 hours per day”.
On 17 November 2010 Ofcom received a complaint regarding the amount of live output and the proportion of speech programming broadcast on the station, alleging that the station was not meeting its live broadcasting and speech programming requirements. Accordingly, Ofcom wrote to the licensee, OnFM Ltd, to ask whether it was complying with its key commitment to broadcast 60% speech and to provide at least eight hours live programming per day. At the same time we requested recordings covering two days of output in a specified week which we monitored to ascertain the level of key commitment delivery.
The licensee did not provide comments on the allegations regarding its key commitment delivery on live output and speech programming. Ofcom’s analysis of the output provided by the station indicated that OnFM was not delivering against its live output remit and its promise to broadcast 60% speech programming during the day. On this basis, Ofcom again wrote to the licensee to ask how it considered its output complied with the licence condition relating to key commitments delivery. Condition 2(4), contained in Part 2 of the Schedule to the licence, states that:
“The Licensee shall ensure that the Licensed Service (-1-) accords with the proposals set out in the Annex so as to maintain the character of the Licensed Service throughout the licence period.”
The licensee said that it agreed that during the period monitored “we were not able to meet the target of eight hours of live shows and sustain our original undertaking to supply 60 per cent speech between 8am and 8pm.”
The licensee said that “OnFM’s fulfilment of its promise to deliver a high standard of speech broadcasting throughout the daytime output is well within the current team’s capabilities.”
In addition the licensee has indicated that it intends to apply to Ofcom to amend its key commitments. This will be considered separately.
By failing to provide the required live output of eight hours per day and 60% speech in daytime programming, OnFM Ltd was not providing the service as described in its key commitments, and therefore is in breach of the licence condition referred to above. Ofcom has therefore formally recorded this breach by OnFM Ltd.
Community radio stations are, under the terms of The Community Radio Order 2004, defined as local radio stations provided primarily for the good of members of the public or for a particular community, rather than primarily for commercial reasons. They are also required to deliver social gain, be run on a not-for-profit basis, involve members of their target communities and be accountable to the communities they serve.
Any organisation applying for a community radio licence is required to set out proposals as to how it will meet these various statutory requirements. If it is awarded a licence, its proposals are then included in the licence so as to ensure their continued delivery. As referred to above this part of a community radio station's licence is known as the 'key commitments', and it is designed to ensure that each community radio station continues to provide the service for which it has been licensed.
Breach of Licence Condition 2(4) in Part 2 of the Schedule to the community radio licence held by OnFM Ltd (licence number CR074)
The full document (Advertising Scheduling Cases / Other Standard cases / Fairness & Privacy cases) is available below
In this section
Issue number 176 21/02/11 (665 kB)
Full Print Version
a) Ofcoms Broadcasting Code (the Code) the most recent version of which took effect on 28 February 2011 and covers all programmes broadcast on or after 28 February 2011. The Broadcasting Code can be found here.
Note: Programmes broadcast prior to 28 February 2011 are covered by the version of the Code that was in force at the date of broadcast.
b) Programmes broadcast prior to 16 December 2009 are covered by the 2005 Code which came into effect on 25 July 2005 (with the exception of Rule 10.17 which came into effect on 1 July 2005) and can be found here.
c) Code on the Scheduling of Television Advertising (“COSTA”) can be found here.
d) Other codes and requirements that may also apply to broadcasters, depending on their circumstances. These include the Code on Television Access Services (which sets out how much subtitling, signing and audio description relevant licensees must provide), the Code on Electronic Programme Guides, the Code on Listed Events, and the Cross Promotion Code, can be found here.