Broadcast Bulletin Issue number 90 - 30|07|07
Turn on TV, 6/7 May 2007, 23:47 - 00:51
Turn on TV2, 6/7 May 2007, 00:04 - 01:04
Turn on TV and Turn on TV2 channels are operated by Bang Media Ltd. Both channels broadcast interactive chat-based programme where viewers are invited to contact on-screen presenters via premium rate services. Both of the programmes complained about featured female presenters (referred to as ‘babes’), dressed in underwear, inviting viewers to call them. The complainant objected that the programmes promoted services that were not linked to the editorial content.
We requested and viewed a sample of the channels’ output and noted the following:
- On the service Turn on TV 2 there was an almost continuous on-screen promotion of a club that offered to send pictures and videos to members’ mobile phones. Membership of the club was offered via a premium rate text service.
- The club was also promoted on Turn on TV. Additionally, Turn on TV promoted a service that offered viewers an option of buying, via a premium rate text service, pictures of the ‘babes’.
- The quality of the recording of output supplied to Ofcom was poor.
We asked for the broadcaster’s comments on the complaint under Section 10 of the Code. The rules in this section require the advertising and programming elements of a channel to be kept separate.
We also sought the broadcaster’s comments, under Condition 11 of its Ofcom broadcasting licences (supply of recordings), on the quality of the recordings provided.
The broadcaster responded that, as soon as Ofcom notified it of the complaint, all promotions were removed from the channels and the broadcasts reviewed. The promotions had not been re-broadcast on either channel.
The broadcaster accepted that the promotion on Turn on TV 2 was not compliant with the Code in that the advertising for the club was not clearly separated from the editorial content. The broadcaster said that the breach had occurred as a result of a misunderstanding between the Promotions and Graphics department and the studio team.
In relation to the promotion of the club on Turn on TV, the broadcaster believed this was graphically separated from editorial elements of the programme and said that the promotion was broadcast for no more than 9 minutes in any hour.
The broadcaster advised that the promotion of the service on Turn on TV that offered viewers pictures of the presenters resulted from viewer requests for such a service. The service offered only pictures of the programme’s presenters and the broadcaster therefore considered the service was directly linked to the editorial content and added to the interactivity of the broadcast. As such, the broadcaster did not believe the promotion of the service within the programme was in breach of the Code.
Following receipt of the complaint, the broadcaster said that it had initiated further training of its Programmes and Graphics Department to ensure a full understanding of all relevant regulations. In addition, it had introduced a new clearance process whereby all promotional material will be cleared by the broadcaster’s Compliance Consultant until such time that the broadcaster was confident that the relevant departments fully understood the requirements of the Code.
Regarding the quality of the recordings, the broadcaster agreed that it was not acceptable. The broadcaster advised that its compliance recordings were provided by a third party and the broadcaster was investigating why the quality of the recordings supplied was poor.
Turn on TV2
The Code requires broadcasters to ensure that the programming and advertising elements of a service are kept separate (Rule 10.2) and prohibits the promotion of products and services within programmes (Rule 10.3). It makes clear that premium rate services will normally be regarded as products and services and must not therefore appear in programmes, except where they either meet the definition of programme-related material or contribute to the editorial content of the programme. In this case, the service promoted (i.e. the club sending pictures and videos to mobile phones via a premium rate text service) neither contributed to the programme’s editorial content nor met the definition of programme-related material. Therefore, as accepted by the broadcaster, the advertising of the service within the programme was in breach of the Code.
Turn on TV
The advertising of the same service on Turn on TV was also in breach of the Code. The promotion of the text club on Turn on TV was in two forms:
- a text box broadcast intermittently that was ‘overlaid’ on the programme; and
- scrolling text that appeared underneath the main telephone number used for contacting the on-screen ‘babes’.
In the case of the ‘overlaid’ text box, regardless of the duration of the message, viewers were likely to see this message not as advertising but as an integral part of the programme. As such, there was not sufficient separation between what was an advertising message and the programme content.
In the case of the scrolling text, this accompanied the main channel telephone number and its associated information (e.g. call costs). Again, it was therefore likely to be understood by viewers as forming part of the programme information rather than a separate piece of advertising.
In relation to the promotion of the service offering pictures of presenters, we understand that the promotion of such a service may meet the definition of programme-related material. However, the manner in which this service was promoted was unduly prominent. Rule 10.6 of the Code only permits programme-related material to be promoted where it is editorially justified. Ofcom’s published guidance on the promotion of programme-related material makes clear that broadcasters should bear in mind that the promotion of such material is permitted only by way of exception to the rule that prohibits the promotion of products and services within programmes. Promotions should not in any way compromise the principle of separation between advertising and programmes. It also makes clear that the promotion of programme-related material is subject to the ‘undue prominence’ rule. The text box promoting the picture service was on-screen for the majority of the broadcast. While broadcasters may inform viewers about the availability of programme-related material, there was not sufficient editorial justification in this case for the repeated and prolonged promotion of the picture service. The prominence of the promotion was therefore undue.
It is a condition of a television broadcast licence that the licensee adopts procedures for the retention and production of recordings and supplies recordings to Ofcom on request. Recordings should be ‘as broadcast’ (i.e. the same quality in terms of both sound and picture as when originally transmitted). The quality of the recordings supplied in this case was not ‘as broadcast’ and the broadcaster was therefore in breach of its Licence.
Breach of Rules 10.2, 10.3, and 10.9 - Turn on TV 2
Breach of Rules 10.2, 10.3, 10.4, 10.6 and 10.9 - Turn on TV
Breach of Licence Condition 11 – failure to supply adequate recordings
Note to Broadcasters
In Ofcom's opinion, the breaches of Section Ten of the Code recorded against Turn On TV are unequivocal. Based on the facts of the case, it is clear that in the programmes concerned, the advertising and programming elements were not properly separated. Ofcom is aware however that in other circumstances this is not always the case. This "grey area", and how best to regulate it, is an important issue explored in the public consultation on Participation TV which Ofcom began on 24 July 2007. In the consultation, Ofcom puts forward various options to clarify the issues. Broadcasters are encouraged to read and respond to the consultation.
Harry Hill’s TV Burp
ITV1, 24 March 2007, 18:10
Harry Hill’s TV Burp is a light-hearted family entertainment show in which comedian Harry Hill takes a satirical look at the week’s television.
In this programme, Harry Hill discussed a recent episode of Born Survivor: Bear Grylls. This is a Channel 4 documentary series in which ex-SAS man Bear Grylls demonstrates the skills he uses to survive in some of the world’s most extreme environments. In the course of the series, Grylls hunts and consumes various wild animals as he makes the audience aware of the unlikely food sources available in such hostile landscapes.
Ofcom received 44 complaints from viewers concerned with Harry Hill’s TV Burp’s re-broadcast of clips from Born Survivor. Viewers were particularly concerned with two scenes: one featured Grylls biting the head from a live frog and the other showed a turtle (which appeared to be alive) being roasted in its shell on top of an open fire. The complainants raised concerns about the animals’ welfare and many mentioned that they and their children had been upset by the scenes. Viewers questioned the appropriateness of using such clips for humorous effect.
Ofcom asked Channel TV to comment with reference to Rule 1.3 (appropriate scheduling) of the Code.
Channel TV said that special care had been taken to ensure that all clips included in the programme were suitable for the time of transmission, taking into account the family audience that the show attracts. It said that as this was the sixth series of Harry Hill’s TV Burp, the format and Harry Hill’s sense of humour had been well established with the audience.
The broadcaster argued that Born Survivor was scheduled at a similar time on Channel 4. It also pointed out that programmes such as Baywatch, You’ve Been Framed, Addams Family Reunion and Harry Potter and the Chamber of Secrets had also been transmitted in this early evening time slot on ITV, all of which: “…contain material with the potential to upset or disturb viewers in this family viewing slot…”
With reference to the belief that the turtle was cooked alive, Channel TV stated that: “Some viewers who contacted us directly did seem to believe that the turtle had been ‘cooked alive’ which was of course not the case; however, unlike the programme makers of Born Survivor, we did not show the killing of this poor animal, which may have led to this confusion. [We] suspect that the children who were unfortunately distressed by this sequence were amongst those who thought this”.
In considering this material, Ofcom is clear that it must exercise its duties in a way which is consistent with Article 10 of the European Convention on Human Rights (“freedom of expression”).
Rule 1.3 of the Code seeks to protect children from unsuitable material by appropriate scheduling. Born Survivor, although broadcast pre-watershed, is transmitted on Channel 4 and attracts a different audience to Harry Hill’s TV Burp. It is a documentary primarily seeking to inform the audience, rather than entertain it. Given the nature of the programme and the information available in listings publications and accompanying publicity, there is likely to be an awareness of the context such material may be used in such a survival-based programme on a channel such as Channel 4.
Ofcom did not consider that ‘real’ footage of a man biting off the head of a live frog was in any way similar to other programmes cited by the broadcaster which were transmitted around the same time e.g. Baywatch, You’ve Been Framed and Addams Family Reunion. Further, by editing the clips so that viewers were not aware that the turtle had been killed before being cooked, the offence caused was compounded.
I n Ofcom’s view, the choice of clips required more careful consideration when broadcast in a light entertainment programme during early peak time on a Saturday evening on ITV1. Given the longstanding popularity of Harry Hill’s TV Burp with families and young viewers, and taking into account the potentially high number of children available to view the programme at this time, Ofcom found that the clips were inappropriately scheduled. The programme was therefore in breach of Rule 1.3.
Breach of Rule 1.3
Advertisement for The Spectator
Classic FM (National), 9 - 12 May 2007, various times
An advertisement on Classic FM for an edition of The Spectator magazine promoted its review of the political career of the former Prime Minister, Tony Blair. After a sardonic description of the former premier, the advertisement concluded: “Blair: A Modern Tragedy. The definitive guide to the missed opportunity of the Tony Blair era. Manipulator, communicator, fabricator. Only in ‘The Spectator’. On sale Thursday.”
Two listeners believed the advertisement was political advertising in breach of the Communications Act 2003, as it was critical of Tony Blair’s record.
Section 1 Rule 4.6 of the BCAP Radio Advertising Standards Code (“the BCAP Code”) requires that certain categories of advertisements, which include UK-wide media, are approved in advance for broadcast by the Radio Advertising Clearance Centre (RACC).
Ofcom sought confirmation of the advertisement’s clearance from GCap, which owns Classic FM. We pointed out that, if the advertisement had not been approved by the RACC, the broadcaster must ensure that no other advertising for The Spectator was broadcast until central (i.e. RACC) copy clearance had been obtained.
GCap confirmed RACC approval had not been obtained prior to the advertisement’s broadcast and apologised for its procedural oversight on this occasion. GCap added that it had therefore reviewed its internal procedures for clearing advertisements and that it would ensure that scripts for “special categories” of advertisements, as listed in the BCAP Code (e.g. advertising concerning UK-wide media), were submitted for central clearance by the RACC. GCap also stated that it had strengthened its internal procedures to avoid any future recurrences of a similar nature.
We welcomed GCap’s actions and assurance. However, failure to ensure that an advertisement for any UK-wide media is appropriately cleared for broadcast is a clear breach of Section 1 Rule 4.6 of the BCAP Code. The advertisement had not been approved by the RACC in advance of broadcast, should not have been aired and was in breach of the BCAP Code.
Breach of Section 1 (Advertisements), Rule 4.6 (Central Copy Clearance) of the BCAP Code
1.-The Broadcast Committee of Advertising Practice (BCAP) Radio Advertising Standards Code (“the BCAP Code”) is maintained and administered by BCAP and the Advertising Standards Authority (ASA) under the terms of the co-regulatory agreement between Ofcom and these two bodies. Political advertising is prohibited under section 321 of the Communications Act 2003 and by Section 2, Rule 15 of the BCAP Code. While the political advertising rules are set out in the BCAP Code, Ofcom remains responsible for their enforcement. This complaint was therefore referred to Ofcom by the ASA, potentially for consideration under Section 2, Rule 15 of the BCAP Code.
Friendly TV, 7 May 2007, 00:20
Friendly TV broadcasts programming based on interactive ‘adult’ chat. Viewers are invited to call the on-screen presenters via a premium rate service. A viewer complained that, in addition to the number that enabled contact with the on-screen presenters, the channel promoted other premium rate services that did not contribute to the programme.
With very limited exceptions (e.g. where a service meets the definition of programme-related material), the Code prohibits the promotion of products and services, including premium rate services, within programmes.
Friendly TV was unable to supply Ofcom with a recording of the output. The broadcaster explained that it had incurred technical problems and had failed to record the programme.
The broadcaster said that it fully appreciated that it was a condition of its broadcasting licence to maintain recordings and stated that it had done so in-house for over three years. The broadcaster advised that it had ensured that its equipment was now recording correctly and was in addition looking into the possibility of using an external company to produce recordings.
As the broadcaster acknowledges, it is a condition of a television broadcast licence that the licensee retains recordings of its output for 60 days, and provides Ofcom with any material on request. Failure to supply the recording from 7 May 2007 is a serious and significant breach of Friendly TV’s licence. This will be held on record.
Breach of Licence Condition 11
Metro Radio (Tyne & Wear), 18 December 2006, 22:00
A member of the public participated in the programme Night Owls on Metro Radio on 18 December 2006. This person complained to the station that he had been treated unfairly in the broadcast. The broadcaster informed the individual of the outcome of his complaint on 17 January 2007.
The same person then made a fairness and privacy complaint to Ofcom. Condition 8 of Metro Radio’s Licence requires it to retain recordings of its output as broadcast for 42 days after transmission, and to provide Ofcom with any such material on request. Further, Ofcom’s published procedures for the handling of fairness and privacy cases provide that if a complainant decides to pursue such a complaint with a radio broadcaster first, Ofcom expects the broadcaster to retain the relevant recordings for 42 days after the complainant has been informed by the broadcaster of the final outcome of his complaint.
Ofcom therefore asked the broadcaster to provide a copy of the programme Night Owls, to facilitate investigation of the grounds of a fairness and privacy complaint. Emap Radio, which owns Metro Radio, said it was unable to provide Ofcom with a copy. Ofcom therefore asked Emap Radio to respond with regard to compliance with Condition 8 of Metro Radio’s licence (retention and production of recordings).
Emap Radio apologised. It assumed that because Ofcom’s request was made more than 42 days after the date of broadcast, no provision of a recording copy to Ofcom was necessary. As a consequence, the station did not provide a copy of the broadcast upon request. After subsequent investigation by the Head of Regulatory Affairs, Emap Radio confirmed that Metro Radio had in fact retained a copy of the programme.
Condition 8 of Metro Radio’s Licence in conjunction with Ofcom’s procedures for fairness and privacy complaints requires radio stations to extend the period for retention of recordings for 42 days after the date of the final correspondence between the complainant and broadcaster (i.e. 42 days from 17 January 2007). Ofcom wrote to the broadcaster asking for the copy of the recording during this period. It was therefore under a clear obligation not only to retain the recording but to supply a copy to Ofcom immediately on request. The failure of the broadcaster to do so resulted in Ofcom being unable to entertain the complaint in this case.
Failure to supply on request the recording of 18 December 2006 was a serious and significant breach of Metro Radio’s licence. This will be held on record.
Breach of Condition 8 of the Metro Radio licence
Fairness and Privacy Cases
Complaint by Mr Makhtoor Hussain
Sky News Report: Forced Marriages, BSkyB, 29 March 2006
Summary: Ofcom has not upheld this complaint of unfair treatment and unwarranted infringement of privacy.
The programme reported on forced marriages and featured three of Mr Makhtoor Hussain’s daughters who alleged that they had either been forced into marriage or had run away from home for fear of being forced into marriage.
Mr Hussain complained that he was treated unfairly and that his privacy was unwarrantably infringed in that: neither he nor his family were told about the broadcast of the report; he was secretly filmed without being told; “facts” were not told in the programme; he was shown wearing his work uniform; he was not told he was being filmed; and the programme revealed his family home, address and the family name.
The broadcaster, BSkyB, argued that the programme was not unfair to Mr Hussain in that: Mr Hussain had been forewarned by the programme makers that the report would be broadcast; he was openly filmed; and declined ample opportunity to present his side of the story. BSkyB also said that the programme did not unwarrantably infringe Mr Hussain’s privacy in that it did not identify his work uniform, nor the address of his home. Furthermore it argued that his family name, which he shared with his daughters who appeared in the programme, was already in the public domain.
Ofcom was satisfied that the broadcaster took reasonable steps to inform Mr Hussain about the broadcast; did not film him covertly; offered him an opportunity to respond to allegations made; did not broadcast material which identified his address or work uniform; and was justified in broadcasting his family name to identify his daughters who were interviewed for the programme. Ofcom therefore found no unfair treatment or unwarranted infringement of Mr Hussain’s privacy.
On 29 March 2006 , BSkyB News broadcast a report about forced marriages, that is, where one person is tricked or threatened into marriage against his or her will, often as a result of family pressures. The report focused in particular upon three sisters: Mrs Zaira Steele (née Hussain and referred to as Zaira Hussain in the programme), Ms Shagofta Hussain and ‘Saima’ (whose identity was obscured in the programme). The sisters recounted their experiences of being forced into marriage (or, in the case of Ms Shagofta Hussain, of running away from home for fear of being forced into marriage) and expressed their thoughts about the treatment they had received from their family and husbands.
In the programme, Mrs Steele alleged that she had been forced to marry at the age of 16. Her Pakistani husband had joined her two years later in the UK . She also alleged that her husband had abused her and that her parents had not helped her when she asked them. Mrs Steele left her first husband and was now married to a man of her own choice. The report also alleged that ‘Saima’ was rescued from a forced marriage in Pakistan and that their younger sister, Ms Shagofta Hussain, had run away from home when she was 15 years of age for fear of being forced into marriage.
Mr Makhtoor Hussain, the father of the three sisters, was named in the programme and footage of him and the exterior of his home were shown in the programme as the programme’s reporter ‘doorstepped’ him to ask for his side to the story. Mr Hussain declined to comment and later confirmed this to the reporter through his solicitor. The programme referred to the Hussain family home as being located in Peterborough .
Mr Hussain complained to Ofcom that he was treated unfairly in the programme and that his privacy was unwarrantably infringed in both the making and the broadcast of the programme.
Mr Hussain’s case
In summary, Mr Hussain complained to Ofcom that he was treated unfairly in the programme as broadcast in that:
- neither he, nor members of his family were informed of the broadcast of the programme;
- he was secretly filmed without being told; and
- “facts” were not told in the programme.
In summary, Mr Hussain also complained that his privacy was unwarrantably infringed in both the making and broadcast of the programme in that:
- his house was shown and his address was given;
- he was wearing his work uniform when secretly filmed;
- he was not told that he was being filmed; and
- his family name was given in the programme.
BSkyB said that the report was designed to promote discussion on this issue in anticipation of an expected government decision on whether or not to introduce legislation prohibiting such marriages and criminalising their facilitation.
In summary, and in particular reference to Mr Hussain’s unfairness complaint, BSkyB said that:
a) Regarding the complaint that Mr Hussain was not informed about the programme, BSkyB said that during the course of her investigation, Ms Eve Richings, the programme’s reporter, had spoken to Mr Hussain’s solicitor about the possibility of Mr Hussain, or his solicitor, making a statement on his own behalf or on behalf of the other members of the family. In their final conversation, Mr Hussain’s solicitor was informed that the report would be broadcast, despite the absence of such a statement. BSkyB argued that it was reasonable for the programme makers to assume that by notifying Mr Hussain’s solicitor, it was not necessary to notify him directly that the report would be broadcast. Ms Richings also notified the three sisters featured in the report to inform them that it would be broadcast. Immediately after the broadcast, Ms Richings was informed by Mrs Steele that her parents had “known it was going to run and had watched it”. Several weeks later, BSkyB said that one of the sisters featured in the programme had informed Ms Richings that “the whole community had watched the programme after her parents had 'called all the cousins' to let them know it was running”. Accordingly, BSkyB asserted that Mr Hussain had been forewarned that the report would be broadcast on 29 March 2006 .
BSkyB also said that it had no responsibility to inform any other members of Mr Hussain’s family about the report and that it was reasonable to assume that, having given notice to Mr Hussain’s legal representative and to his daughters, that any such obligation had been satisfied.
b) BSkyB said that Mr Hussain was not secretly filmed. He was filmed from a camera set up across the road from his house in clear view. The camera was set up on the other side of the road, not to obscure it, but because there was no pavement on the road immediately outside Mr Hussain’s house, and the programme makers felt that were it to be any closer, it might be too intrusive. BSkyB said that Ms Richings and cameraman were certain that Mr Hussain had seen the camera. In view of the fact that the filming was not in secret, BSkyB said there was no reason to make it clear to Mr Hussain that he was being filmed at the time as this was evident from the camera outside his house.
c) BSkyB said that Mr Hussain had not provided any information as to which “facts” were not “told”. BSkyB said that it was not therefore possible to respond to this allegation specifically. However, BSkyB said that Mr Hussain was given ample opportunity to present his side of the story and had declined to do so. The report told the sisters’ story from their perspective, and, largely, in their own words. Mr Hussain was given several opportunities to respond to the version of events provided by his daughters, both directly as part of the interview conducted on camera with Ms Richings, through his solicitor, and through requests made to one of his daughters.
In summary, and in response to Mr Hussain’s complaint of unwarranted infringement of privacy, BSkyB said that:
d) Regarding Mr Hussain’s complaint that his house was shown and that his address was given, BSkyB acknowledged that, during the report, the outside of Mr Hussain’s house was shown before the footage focused in on the front door when it was opened by him. In addition, the commentary stated that the house was located in Peterborough . BSkyB argued that the information disclosed in the report was, however, insufficient to identify Mr Hussain’s address to viewers. Specifically, neither the street name nor house number were identified and the shots included were sufficiently “tight” that no other identifying landmarks were visible. Accordingly, BSkyB said that the location of Mr Hussain’s home was not revealed by the report.
e) BSkyB said that from the footage shown in the report, Mr Hussain appeared to be wearing a plain white shirt without any visible branding and dark trousers. It was not possible to determine, therefore, whether or not this was his work uniform or how his appearance in the report might constitute an unwarranted infringement of his privacy.
f) BSkyB said that although Mr Hussain alleged that he was not told that he was being filmed, Ms Richings maintained that the camera and cameraman were positioned in clear view of the complainant when he answered the door to Ms Ritchings. No attempt was made to hide the camera from Mr Hussain, and, BSkyB said that Ms Ritchings was certain that he had seen the camera. Accordingly, it was not felt necessary by the programme makers to inform Mr Hussain that he was being filmed at the time.
BSkyB submitted a statement made by Ms Richings from her contemporaneous notes of making the report. Ms Richings said that concerns had been raised about how Mr Hussain might have reacted to a direct request to an interview. Following an internal discussion between Ms Richings and BSkyB’s Head of Home News, it was agreed that although it would be inappropriate to secretly film Mr Hussain, it would be appropriate to approach him unannounced provided that the camera was sited in full view across the road.
g) BSkyB acknowledged that Mr Hussain’s family name was used in the report as it was not possible to identify the two sisters that had agreed to contribute to the programme, without using the family name.
Ofcom’s statutory duties include the application, in the case of all television and radio services, of standards which provide adequate protection to members of the public and all other persons from unfair treatment and unwarrantable infringement of privacy in programmes included in such services.
In carrying out its duties, Ofcom has regard to the need to secure that the application of these standards is in the manner that best guarantees an appropriate level of freedom of expression. Ofcom is also obliged to have regard in all cases, to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.
This case was considered by Ofcom’s Executive Fairness Group. Ofcom considered the complaint and the broadcaster’s response, together with supporting material and a recording and transcript of the report as broadcast. In its considerations, Ofcom took account of Ofcom’s Broadcasting Code (“the Code”).
In the circumstances of this case, Ofcom found the following:
Ofcom considered that Mr Hussain’s complaints in light of Rule 7.1 of the Code which states that broadcasters must avoid unjust or unfair treatment of individuals or organisations in programmes. In addition, Ofcom also took account of the following Practices: Practice 7.9 of the Code which states that before broadcasting a factual programme, including programmes examining past events, broadcasters should have taken reasonable care to satisfy themselves that: material facts have not been presented, disregarded or omitted in a way that is unfair to an individual or organisation; Practice 7.11 which states that if a programme alleges wrongdoing or incompetence or makes other significant allegations, those concerned should normally be given an appropriate and timely opportunity to respond; and, Practice 7.14 which states that broadcasters or programme makers should not normally obtain or seek information, audio, pictures or an agreement to contribute through misrepresentation or deception. (Deception includes surreptitious filming or recording).
a) Ofcom considered Mr Hussain’s complaint that he was not informed of the broadcast of the programme.
In considering whether Mr Hussain should have been informed about the broadcast of the report, Ofcom had particular regard to Practice 7.11 of the Code referred to above.
Ofcom considered whether or not the comments of Mr Hussain’s three daughters in the report amounted to allegations of wrongdoing, incompetence or made significant allegations about him specifically and if so, whether or not the programme makers have informed him about the programme and given him an appropriate and timely opportunity to respond.
It was clear to Ofcom, from watching the report and reading a transcript of it, that his daughters’ comments did have the potential to convey to viewers the impression that Mr Hussain was complicit in forcing two of his daughters into marriage against their will. In these circumstances, Mr Hussain should therefore have been given an opportunity to respond to the allegations.
Ofcom noted that BSkyB’s statement and the statement made by Ms Richings, the programme’s reporter, that she had left her business card with Mr Hussain. Ofcom was satisfied from the broadcaster’s submission that Mr Hussain’s solicitor made contact with Ms Richings and said that she would consider the possibility of providing a statement on Mr Hussain’s behalf. Also, according to Ms Richings’s statement, in her final conversation with Mr Hussain’s solicitor, Ms Richings informed her that the report would be broadcast despite the absence of a statement from Mr Hussain or his solicitor.
In these circumstances, Ofcom was satisfied that Mr Hussain would have been properly informed that it was to be broadcast and was given an appropriate and timely opportunity to respond to the allegations made by his daughters in the report. Ofcom considered separately the manner in which Mr Hussain was approached by Ms Richings at Decision head f) below.
Ofcom found therefore that there was no unfairness to Mr Hussain in respect of being informed about the broadcast.
b) Ofcom considered Mr Hussain’s complaint that he was secretly filmed and not told and that this resulted in unfairness in the programme as broadcast.
In considering this element of Mr Hussain’s complaint, Ofcom had particular regard to Practice 7.14 of the Code referred to above.
Ofcom considered the circumstances in which Mr Hussain was filmed and considered whether or not his consent should have been sought before the footage was recorded and before it was subsequently broadcast. Ofcom examined the report as broadcast. Mr Hussain appeared at the front door of his house after the reporter knocked on it. Ofcom noted the full conversation between Mr Hussain and Ms Richings:
Reporter (Ms Richings): “Are you Mr Hussain?
Mr Hussain: I am, yes.
Reporter: My name is Eve Richings. I have been talking to three of your daughters…basically I am trying to be fair and balanced about it – if we run something I don’t want your to feel that we haven’t given you the opportunity to actually give your side and it seems very one-sided from where I am looking at, you know, the fact that I have spoken to three of your daughters.
Mr Hussain: Let them be happy…
Reporter: Sorry what did you say?
Mr Hussain: Let them be happy – I don’t want to talk.
Reporter: You don’t want to talk about it? It must have had a devastating effect on your family.
Mr Hussain: Yes…I don’t want to talk”.
Having watched the footage as broadcast, Ofcom was unable to determine whether or not Mr Hussain was aware of the filming and noted that conflicting submissions were provided by each party in this respect. BSkyB asserted that Mr Hussain would have been aware he was being filmed and Mr Hussain said he was unaware that he was being filmed. However, having examined the footage in the programme, it appeared to Ofcom that the footage had been filmed in an open manner (that is from the side of a public highway), and there was nothing to suggest that it had been conducted secretly.
Taking all the above into consideration, Ofcom was satisfied that the footage of Mr Hussain was not obtained secretly and that in any event, whether he was or was not aware of the recording, his comments and demeanour were such that the broadcast of the footage did not result in unfairness to him.
c) Ofcom considered Mr Hussain’s complaint that “facts” were not “told” in the programme.
When considering this element of Mr Hussain’s complaint, Ofcom had particular regard to Practice 7.9 of the Code referred to above.
Ofcom noted that Mr Hussain had not provided any elaboration on what he meant when referring to “facts” in his complaint. Ofcom had sought from Mr Hussain further explanatory information to clarify what he meant, but he did not provide the information requested. Ofcom considered that in these particular circumstances, it was not possible for it to adjudicate on this point.
Ofcom therefore found no unfairness to Mr Hussain in this respect.
In Ofcom’s view, the line to be drawn between the public’s right to information and the citizen’s right to privacy can sometimes be a fine one. In considering complaints about the unwarranted infringement of privacy, Ofcom will therefore, where necessary, address itself to two distinct questions: First, has there been an infringement of privacy? Second, if so, was it warranted? (Rule 8.1 of the Code). Ofcom took account of: Practice 8.2 of the Code which states that information that discloses the location of a person’s home or family should not be revealed without permission, unless it is warranted; and Practice 8.4 of the Code which states that broadcasters should ensure that words, images or actions filmed or recorded in, or broadcast from, a public place, are not so private that prior consent is required before broadcast from the individual or organisation concerned, unless broadcasting without their consent is warranted.
Also Ofcom took into account Practice 8.13 which states that the method of surreptitious filming or recording should only be used where it is warranted; and, Practice 8.14 which states that material gained by surrpetitious filming or recording should only be broadcast when it is warranted.
d) Ofcom considered Mr Hussain’s complaint that his privacy was unwarrantably infringed in the making and broadcast of the programme in that his house was shown and his address was given.
Ofcom first considered whether or not Mr Hussain had a legitimate expectation of privacy concerning the revelation of his family home and its location, in the programme. Ofcom was satisfied that Mr Hussain did have a legitimate expectation of privacy concerning the address of his family home which is explicitly mentioned in Practice 8.2 of the Code detailed above.
Ofcom then considered whether or not Mr Hussain’s privacy was infringed in the making and broadcast of the programme. Having examined the programme as broadcast and read a transcript of it, Ofcom noted that the exterior of Mr Hussain’s home was recorded from the public highway, did not involve activity of a private nature. Ofcom also noted that the accompanying commentary in the broadcast stated that it was located in Peterborough . Ofcom was also satisfied that the broadcast footage did not reveal any house name or number or any other distinguishing signs such as a street name or recognisable landmarks.
In light of these considerations Ofcom therefore found that Mr Hussain’s privacy was not infringed in either the making or broadcast of the programme in this respect. In these circumstances, it was not necessary for Ofcom to go on to consider the issue of whether or not any infringement was warranted.
e) Ofcom considered Mr Hussain’s complaint that his privacy was unwarrantably infringed in the making and broadcast of the programme in that he was wearing his work uniform when secretly filmed.
In considering this element of Mr Hussain’s complaint, Ofcom had particular regard to Practice 8.4 of the Code referred to in the introduction to the Privacy section of the Decision above.
Ofcom first considered whether Mr Hussain had a legitimate expectation of privacy in relation to the recording and broadcast of the footage complained of. By examining the footage of Mr Hussain in the programme, Ofcom was satisfied that, as discussed above, the material complained of was filmed from the public highway and did not involve any activity of a private nature. Ofcom also noted that in the broadcast footage there was no visible branding shown on the white shirt or dark trousers that he was wearing while being interviewed by Ms Ritchings at his front door. In these circumstances, Ofcom was satisfied that viewers would not have been able to identify that his clothing was part of a uniform and, therefore, the nature of his employment was not discernable.
In these circumstances, Ofcom considered that Mr Hussain had no legitimate expectation of privacy in relation to the recording and broadcast of the footage of him wearing this particular clothing. Ofcom therefore found that there had been no infringement of his privacy in the making or broadcast of the programme. In these circumstances, it was not necessary for Ofcom to go on to consider the issue of whether or not any infringement was warranted.
f) Ofcom considered Mr Hussain’s complaint that his privacy was unwarrantably infringed in both the making and broadcast of the programme in that he was not told that he was being filmed.
In considering this element of Mr Hussain’s complaint, Ofcom had particular regard to Practices 8.13 and 8.14 of the Code referred to in the introduction to the Privacy section of the Decision above.
Ofcom first considered whether Mr Hussain had a legitimate expectation of privacy in relation to the material recorded and broadcast of him. Ofcom considered the circumstances in which Mr Hussain was filmed. As discussed above at Decision head b), Mr Hussain had appeared at the front door of his house after Ms Richings, the programme’s reporter, knocked on it and he was shown telling her to “Let them be happy – I don’t want to talk”.
As explained under head b) above, having watched the footage as broadcast Ofcom was unable to determine whether or not Mr Hussain was aware of the filming and noted that no conclusive submissions were made by either party in this respect. However, it appeared to Ofcom that the footage had been filmed in an open manner and there was nothing to suggest that it had been conducted secretly.
As discussed at Decision head b) above, Ofcom concluded that the filming of Mr Hussain was not conducted in a surreptitious manner, and in these circumstances, Ofcom considered that Mr Hussain had no legitimate expectation of privacy in relation to the recording and broadcast of the footage. Ofcom therefore found that there had been no infringement of his privacy in the making or broadcast of the programme. In these circumstances, it was not necessary for Ofcom to go on to consider the issue of whether or not any infringement was warranted.
g) Ofcom considered Mr Hussain’s complaint that his privacy was unwarrantably infringed in the broadcast of the programme in that his family name was given in the programme.
In considering this element of Mr Hussain’s complaint, Ofcom had particular regard to Practice 8.2 of the Code referred to above.
Ofcom first considered whether or not Mr Hussain had a legitimate expectation for his family name not to be disclosed in the particular circumstances of this case.
Ofcom noted that Mr Hussain was named in the programme, that his family name was shared by his two daughters who had agreed to be identified in the programme, and that it would not have been possible to have identified them without the use of their family name. It also noted that the family name was already in the public domain as the story of one of the three sisters (Zaira Hussain) had been featured in a newspaper article. In these circumstances, Ofcom considered that it was reasonable for BSkyB to have used the names of the two sisters who agreed to appear openly in the programme. For these reasons, Ofcom found that Mr Hussain did not have a legitimate expectation that the family name that he shared with his daughters would not be used in these circumstances.
Taking these factors into account, and as there was no legitimate expectation of privacy in the use of Mr Hussain’s family name and his privacy was not therefore infringed. It was not necessary therefore for Ofcom to go on to consider whether any infringed was warranted.
Mr Hussain’s complaint of unfair treatment and unwarranted infringement of privacy in both the making and broadcast of the programme was not upheld.
Complaint by Ms T on behalf of herself and her son H
Northwest Tonight, BBC1 (Northwest), 30 June 2006
Summary:Ofcom has not upheld this complaint of infringement of privacy in the broadcast of the programme.
Ms T complained that her privacy and that of her son, H, was unwarrantably infringed in the broadcast of a report on the failings of the CSA in this edition of Northwest Tonight. Ms T was not featured in the report but complained that she was identifiable through the inclusion in the item of her son who was identified.
The BBC responded that it was unlikely that viewers who knew Ms T would have learned anything about her about which they were previously unaware from watching the item. It noted that it had acted in accordance with Practice 8.21 of the Code in securing the consent of Mr W, for his son, H, to appear in the broadcast but added that given the “visual emphasis” upon H and the provisions of the Residence and Contact order forwarded to Ofcom by Ms T, it believed it should also have contacted Ms T.
Ofcom found that neither Ms T nor her son had a legitimate expectation of privacy in the circumstances of this complaint. In Ms T’s case this was because the programme included information which it was reasonable for her former partner to choose to disclose, and which was personal to him as well as to her. In the case of Ms T’s son, there was no legitimate expectation of privacy because the broadcaster had secured consent from his father for him to appear in the programme.
On 30 June 2006 , BBC1 broadcast an edition of its regional news programme, Northwest Tonight. This edition included a report about the Child Support Agency (“the CSA”) which claimed that the agency was failing families. The report included an interview with Mr W and footage of his three year old son, H. Mr W claimed that the CSA had failed to pass on payments to his former partner.
Ms T, Mr W’s former partner and the mother of H, neither appeared nor was named in the report. However, she complained that she was identifiable to those who know her through the appearance of her son and former partner.
Ms T complained that her privacy and the privacy of her son H was unwarrantably infringed in the programme as broadcast.
Ms T’s case
In summary, Ms T complained that her privacy was unwarrantably infringed in the programme as broadcast in that:
a) although she was not named in the report (which included information of a private nature about her), the inclusion of her son had resulted in her being identified.
In summary, Ms T complained that her son H’s privacy was unwarrantably infringed in the programme as broadcast in that:
b) he was identified in the broadcast.
By way of background, in her complaint Ms T indicated that she shared joint parental responsibility for H with her former partner, Mr W. In response to a request for clarification of this issue, Ms T supplied Ofcom with a copy of a Residence and Contact Order which indicated that her son H should reside with her and defined the contact rights of the child’s father.
In summary the BBC responded to Ms T’s complaint on behalf of herself as follows:
a) The BBC regretted any distress caused to Ms T and explained that its intention was to provide an example of a local case where a parent had experienced “problems” dealing with the CSA on a day when concerns about the operation of the CSA was a news story. The broadcaster added that it was not trying to “examine the rights and wrongs of [the] particular case” and noted that Ofcom had not entertained the fairness aspects of Ms T’s original complaint.
With regard to the issue of Ms T’s privacy, the broadcaster suggested that it was unlikely that viewers who knew her would have learned anything about Ms T about which they were previously unaware from watching the item. It pointed out that Ms T herself noted that her name was not mentioned in the item and that therefore “viewers who did not know anything about the couple or their history would have learned nothing about her”.
In summary the BBC responded to Ms T’s complaint on behalf of her son H as follows:
b) The BBC acknowledged that H both featured and was identifiable in the item. It noted that the programme-makers had complied with Practice 8.21 of the code (securing parental consent where a programme will otherwise infringe the privacy of a child) in seeking and obtaining consent from “a parent” (namely Mr W). The broadcaster believed that H’s appearance was “editorially justified” in that it was trying to show the “personal dimension to the concerns being expressed about the workings of the CSA”.
However, in light of the “visual emphasis” upon H and the provisions of the Residence and Contact order forwarded to Ofcom by Ms T, the broadcaster said it, in retrospect, accepted that it should also have contacted Ms T. Given this, the BBC said that it would re-edit the report “to reduce H’s prominence in the item and obscure H’s face and head so that, in the event of any repeat showing, he will no longer be identifiable”.
Ofcom’s statutory duties include the application, in the case of all television and radio services, of standards which provide adequate protection to members of the public and all other persons from unwarranted infringement of privacy in programmes included in such services.
In carrying out its duties, Ofcom has regard to the need to secure that the application of these standards is in the manner that best guarantees an appropriate level of freedom of expression. Ofcom is also obliged to have regard in all cases, to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.
Ms T’s complaint was considered by Ofcom’s Executive Fairness Group which considered the complaint and the broadcaster’s response, together with a recording of the programme as broadcast. In its deliberations Ofcom considered the requirements of the Code.
Ms T’s privacy
a) Ofcom first considered Ms T’s complaint that, although she was not named in the report (which included information of a private nature about her), the inclusion of her son in the broadcast had resulted in her being identified.
Ofcom observed the obligation within the Code which states that “any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted” (Rule 8.1). The Code also explains that an individual’s “legitimate expectations of privacy will vary according to the place and nature of the information, activity or condition in question”.
Ofcom observed that Ms T, as stated in her complaint, neither appeared nor was named in the broadcast. However, in Ofcom’s view the presence of her former partner and son (both of whom featured in the programme and were identified by name) rendered Ms T identifiable to those people who know her relationship with them.
With regard to the nature of the material broadcast, Ofcom noted that the reporter said that “W used to pay more than one and a half thousand pounds a month to help his former partner and their son H. Now that the Child Support Agency has got involved he pays nothing”.
It also observed that Mr W was shown in the programme saying that “since the involvement of the CSA a situation that worked well whereby I paid my former partner directly has been so seriously interrupted that she now doesn’t get any money, the CSA have money but she doesn’t get any money”.
Finally, Ofcom noted the following exchange between Mr W and the reporter:
Reporter: “So you mean they have your money”.
Mr W: “They still have my money yeah”.
Reporter: “But they’re not passing it on to her”.
Mr W: “No”.
In relation to Ms T’s complaint of unwarranted infringement of her privacy in the broadcast, Ofcom first considered whether Ms T had a legitimate expectation of privacy in these circumstances.
Given that Ms T’s expectation of privacy was not reasonable in the circumstances of this case, Ofcom found that there was no infringement of her privacy. Therefore, Ofcom did not go on to consider the question of whether any infringement was warranted.
Ms T’s son’s privacy
b) Ofcom then moved on to consider Ms T’s complaint of unwarranted infringement of her son H’s privacy in the broadcast.
Ofcom took account of Practice 8.20 of the Code which states that “broadcasters should pay particular attention to the privacy of people under sixteen” and Practice 8.21 which states that “where a programme features an individual under sixteen or a vulnerable person in a way that infringes privacy, consent must be obtained from a parent, guardian or other person of eighteen or over in loco parentis”.
Ofcom first considered whether H had a legitimate expectation of privacy in the circumstances of the broadcast in question.
Ofcom noted that children have a heightened expectation of privacy which is reflected in Practice 8.20 of the Code and observed that at the time of the broadcast H was three years old. It also noted that in accordance with Practice 8.21 of the Code the broadcaster was obliged to obtain the consent for H to appear in the broadcast from, in this case, a parent.
It should be noted that there might be circumstances in which the nature of the parental responsibility (particularly in cases where the parents concerned have separated) and/or the nature of the material filmed and broadcast might require broadcasters to take additional steps vis à vis the privacy of a child.
In this case, Ofcom observed the broadcast material and that H was shown playing in his father’s garden and was referred to by name.
Ofcom noted Ms T’s supporting documentation which indicated that she and Mr W have joint parental responsibility for H, who resides with his mother. By virtue of this joint responsibility, in Ofcom’s view it was appropriate for the programme makers to seek consent from Mr W for his son to appear within the programme.
Given that the BBC had secured consent for H to appear in the broadcast from a parent (namely Mr W) as discussed in Practice 8.21, Ofcom found that H did not have a legitimate expectation of privacy at the time of broadcast and that therefore his privacy was not infringed. Consequently, Ofcom did not go on to consider the question of whether any infringement was warranted.
The complaints of unwarranted infringement of privacy in the programme as broadcast were not upheld.
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