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Broadcast Bulletin Issue number 91 - 20|08|07

Mike Mendoza, Football First, Britain’s Got Talent, Nach Baliye 2, Voice of Africa Radio (Radio Licensable Content Service), Sky News, Complaint by Mrs Anwar Begum & Complaint by Mr Gary Hall.

Standards Cases

In Breach

Mike Mendoza
talkSPORT, 12 May 2007, 01:10

Introduction

Mike Mendoza presents a live phone-in programme, which is designed to challenge audiences by stimulating discussion on topics introduced by the presenter and callers to the show.

During the introduction to this programme, Mike Mendoza outlined the subjects that were to be discussed, by stating the following:

"The other thing that has really got up my nose over the last couple of days…and again you might like to comment on this…are the footballers…and I'm including David Beckham on this one ‘cause he's jumped on the bandwagon today, and that's exactly what they've done. Footballers yesterday jumping on the bandwagon to beg whoever it is that has taken Madeleine McCann away, whoever has grabbed her, to give her back…now you tell me, paedophiles in general are the type of people that surely would not follow football…not many gay people to the best of my knowledge are great football fans."

One listener complained that this reference linking paedophiles with gay people was inappropriate. Ofcom asked the broadcaster to comment on these remarks in light of Rule 2.3 (generally accepted standards).

Response

The broadcaster said that the statements made had been indefensible. It had spoken to the presenter who accepted that he had been wrong to make them. The broadcaster then suspended Mr Mendoza for a week to underline the seriousness of his mistake.

talkSPORT offered its apologies to the complainant and anyone else who had been offended by the remarks. It believed that they have taken immediate and appropriate action to prevent any similar comments being repeated.

Decision

Rule 2.3 of the Code requires broadcasters to ensure that material which may cause offence is justified by the context. The broadcaster did not attempt to justify these offensive remarks by the context - it admitted they were not defensible and apologised.

We note the broadcaster’s immediate and appropriate action in suspending Mr Mendoza. We nevertheless are very concerned that the presenter chose to make such a remark. To connect homosexuality to paedophilia is highly offensive. We therefore regard the broadcast as a breach of Rule 2.3.

Breach of Rule 2.3


Football First
talkSPORT, 3 June 2007, 19:45

Introduction

A programme that generally concentrates on topics relating to football strayed into a discussion about the recent gay rights demonstrations in Moscow. During an exchange between a number of presenters, a remark was made that a listener objected to, as it referred to homosexuality as a perversion.

Ofcom asked the broadcaster to comment in relation to Rule 2.3 of the Code ( broadcasters must ensure that material which may cause offence is justified by the context).

Response

talkSPORT acknowledged that the presenter, Garry Bushell, was wrong to use the words that he did and had been spoken to about his remarks, which he regretted. It further made the point that his comments were made “off the cuff” and were not the subject of the discussion.

Decision

During the course of a conversation about the possibility of an English club qualifying for the European Cup final next year, the presenters discussed the fact that it would be held in Moscow where the police were known for their lack of tolerance in relation to civil disturbances. To illustrate the point, a presenter referred to a recent gay rights demonstration in Moscow . Gary Bushell, who joined the discussion to promote his programme later that evening, made light of the fact that Peter Tatchell, the well known gay rights activist, had been attacked at the demonstration by anti-gay protesters and subsequently arrested by Russian riot police. When questioned by a co-presenter because he appeared to find the situation amusing, he said that: “I would not go to another country and try and impose my views on them, it’s up to them what they do. I think there are a lot of things to put right in this country before you go around preaching the gospel of perversion”. Ofcom noted that there was some attempt by his co-presenters to challenge what he had said, but the discussion quickly moved on to football topics.

We welcome the broadcaster’s acknowledgement that the presenter’s comments were unacceptable. We nevertheless did not think that its claim that the comments were made “off the cuff” mitigated the fact that this was a live broadcast in which a presenter made an inflammatory remark about homosexuality that would generally be regarded as a derogatory and offensive comment. We therefore regard the broadcast of the comment as a breach of Rule 2.3.

Further, Ofcom notes that this is the second breach of Rule 2.3 recorded against talkSPORT in this Bulletin. We therefore remind the broadcaster that, given these programmes are broadcast live, it is particularly important that its presenters are fully briefed in advance about the potential for certain topics and types of remarks to cause offence to the audience.

Breach of Rule 2.3


Britain’s Got Talent
ITV1, 16 June 2007, 19:45

Introduction

Britain’s Got Talent was a series of nine programmes, broadcast nightly, which aimed to find an ‘unknown star’ from the general public to perform at this year’s Royal Variety Performance. The live semi-final, broadcast on ITV1 on Saturday 16 June 2007 at 19:45, featured an illusionist called Dr. Gore. 21 viewers subsequently complained to Ofcom that Dr. Gore’s ‘act’ was not suitable for weekend family viewing.

The programme was complied by Channel TV for ITV, therefore Ofcom asked Channel TV to comment in respect of Rule 1.3 (appropriate scheduling).

Response

On behalf of ITV, Channel TV said that ITV wanted to present its viewers with a wide range of live entertainment in the programme. When Dr. Gore was chosen to go through to the semi-final, Channel TV reviewed his act carefully with the programme’s executive producer to determine how it could be included in the programme without upsetting younger, sensitive or impressionable viewers.

It said that the viewing figures for the programme were consistently high throughout the week and that it therefore suspected that a very small percentage of its viewers might feel Dr. Gore’s act was unsuitable for their families. As a consequence it took particular care to ensure that his act was introduced and presented appropriately. The programme’s presenters, Ant and Dec, introduced Dr. Gore with the words “He has the power to make audiences feel sick in seconds” and this was followed by an edited minute-long clip of his audition. Channel TV believed that this was a comprehensive visual and verbal introduction which would give viewers the time to make an informed choice as to whether to watch Dr Gore’s performance or allow their children to see it.

Channel TV confirmed that Dr. Gore’s act was considerably softened and amended from that performed in the auditions and that this was as a result of extensive discussions with Dr. Gore and the programme’s producers. Notably, it said that there were no graphic, prolonged or close up shots and that an element of comedy was introduced by the inclusion of a rubber chicken amongst the materials removed from the ‘live autopsy’. It therefore believed that the performance became one of pantomime rather than horror and said that Ant and Dec drew attention to the dangers of emulating Dr. Gore by asking his assistant to show a wound he’d suffered in rehearsals.

It concluded its response by stating that the performance was presented on screen with frequent cuts away from the act itself to the reaction of the judges and the audience and that the inclusion of an element of comedy further reduced the possibility of upsetting younger or sensitive viewers.

Decision

Rule 1.3 of the Code states that “Children must be protected by appropriate scheduling from material that is unsuitable for them…appropriate scheduling should be judged according to: the nature of the content; the likely number and age range of children in the audience, taking into account school time, weekends and holidays…the nature of the channel or station and the particular programme; and the likely expectations of the audience for a particular channel or station at a particular time and on a particular day”.

Before Dr. Gore and his assistants performed on stage, a one minute preview clip of his audition earlier in the week was transmitted which featured shots of Dr Gore causing large amounts of blood to spray from his female assistant’s face. When Dr. Gore’s act began, he appeared on stage in a white doctor’s coat covered in blood and seemed to saw off his hand from the wrist with a large knife, shouting “do you want to see some gore?” A young man was then made to lie on a trolley and was covered in a blood stained white sheet and Dr. Gore appeared to use a rotary saw to remove pieces of flesh and what looked like a large organ from his body. At this point all three judges pressed their buzzers, signifying the act to stop.

The semi-final of Britain’s Got Talent was broadcast in peak family viewing time on a Saturday night and the series had featured many child performers in all its nightly heats. This programme in particular featured a singer who was six years old and a dance troupe solely comprising a number of young children, which would have further enhanced the programme’s appeal to children and families alike. It therefore would have been the audience’s expectation, particularly on a Saturday night when younger children are generally allowed to stay up later, that the programme’s content before the watershed would be suitable for them to view, not least because it was a variety programme aiming to find a member of the public who would ultimately perform for the Queen.

Ofcom also did not consider that the elements of comedy introduced into the act turned it from one of horror to pantomime. Both Dr. Gore and his assistant were dressed in medical clothing and appeared to use a real rotary saw to “extract” organs and flesh from their “victim”.

Therefore, Dr Gore’s act, regardless of efforts to edit it and to inject an element of humour, went beyond audience expectations for peak family viewing at the weekend, particularly given that audience figures suggest that more than one million children were watching. Further, Ofcom did not consider that the one minute preview clip of Dr Gore’s audition acted as a warning to viewers about the nature of Dr Gore’s act, as this clip in itself contained images that Ofcom found to be unsuitable for the time of transmission. Children should be protected from material that is unsuitable for them to view. This programme was therefore in breach of Rule 1.3 of the Code.

Breach of Rule 1.3


Nach Baliye 2
Star One, December 2006 to January 2007, various dates (21:00-23:00)

Introduction

Nach Baliye is an annual reality dance series originally broadcast in India . Its contestants are couples who are generally television stars. The Indian public can vote for its favourite dancers via mobile phones or the internet. When the series is re-transmitted in the UK , viewers are not able to vote.

A viewer complained about the promotion of products and services within the programme, in particular Reliance Mobile, an Indian mobile phone company.

Ofcom requested a statement from the broadcaster concerning the presence of a prominent logo for Reliance Mobile at various points in the programme in relation to Rules 10.3 (prohibition on promotion of products and services in programmes), 10.4 (undue prominence) and 10.5 (product placement) of the Code. It also sought comments on the inclusion of references to the sponsor, Garnier Fructis, within the show under Rules 9.5 (sponsor influence) and 9.6 (sponsor references within programmes).

Response

Inclusion of Reliance Mobile logo

The broadcaster, Asian Broadcasting FZ LLC, said that during the shows broadcast in India , viewers were invited to vote for their favourite contestant. In all cases voting was open to Indian residents only. Various voting options were provided: public landline, SMS text message or at a dedicated website, with subscribers of the mobile operator Reliance Mobile able to dial a dedicated number. The Reliance Mobile logo was displayed whenever voting information was provided to viewers. In the channel’s view, use of the logo was necessary since this option was only open to subscribers of Reliance Mobile.

In relation to Rules 10.3 and 10.4, its understanding was that these only applied to commercial products and services available in the Ofcom licensee’s transmission area. In this case Reliance Mobile’s mobile telecommunications services were only available in India and it therefore believed that that the inclusion of the Reliance Mobile logo was not unduly prominent.

In relation to product placement (Rule 10.5), the broadcaster confirmed that a payment had been made to the programme producer by Reliance Mobile for display of its logo. However it had acquired the programme from outside the UK and received no direct financial benefit from this arrangement. It believed that there had therefore been no breach of this rule as the arrangement fell within one of the recognised exceptions to Rule 10.5, namely:

For television, arrangements covering the inclusion of products or services in a proqramme acquired from outside the UK … provided that no broadcaster regulated by Ofcom and involved in the broadcast of that programme or film directly benefits from the arrangement .

References to sponsor - Garnier Fructis

In relation to Rule 9.5, the broadcaster confirmed that Garnier Fructis did not have any influence on the content nor on the scheduling of the programme in the UK . In its view, editorial independence had therefore been maintained at all times and there had therefore been no breach of this rule.

In relation to Rule 9.6, it considered that the display of the sponsor’s logo on the set of the show (with “Garnier Fructis presents”), had helped to ensure the transparency of the sponsorship arrangement to all viewers. However, it acknowledged that the inclusion of the logo on set may have been a breach of Rule 9.6 and stated that it would endeavour to comply with this Rule going forward.

Decision

In considering possible undue prominence of the Reliance Mobile logo under Rule 10.4, Ofcom noted that in the edition of the programme viewed this logo had appeared regularly throughout, whenever voting information was presented on screen. Notwithstanding the assurances that the company’s services were only available in India , Ofcom considered that there had been insufficient editorial justification for the degree of prominence given in this case. In relation to product placement, Ofcom accepted the broadcaster’s assurances and concluded that the exception to the Rule had applied in this case.

With reference to the sponsorship issues raised, Ofcom accepted the assurances that the broadcaster had retained editorial independence and therefore there had not been a breach of Rule 9.5.

However, in relation to references to the sponsor within the programme (Rule 9.6), it considered that there had been a breach of the Code. It noted that the Garnier Fructis logo and the statement “Garnier Fructis presents” appeared on the front of the studio podium on which the panel of judges sat and appeared regularly in shot during the programme. The logo and statement also appeared elsewhere in the programme, as part of pre-break ‘teases’ for upcoming events in the next section of the programme and alongside two trails for spin-off programmes.

Ofcom did not accept the argument raised concerning transparency of the sponsorship arrangement. The Code requires that the sponsor must be identified at the beginning and/or end of the programme. Sponsor credits are also permitted at breaks. In this instance, the logo and sponsor statement had appeared in such break credits and this use had been acceptable. However, the other references, within the programme itself, were in breach of the Code.

Breach of Rules 10.4 and 9.6


Voice of Africa Radio (Radio Licensable Content Service)
18 January 2007, 22:00

Introduction

Ofcom asked Voice of Africa Radio (VOAR) to provide a copy of a recording relating to an investigation of a fairness and privacy complaint. The station was unable to provide Ofcom with a copy.

Ofcom asked VOAR to comment with regard to Condition 8 of its Licence, which requires that recordings of its output as broadcast are retained for 42 days after transmission, and it provides Ofcom with any such material on request.

Response

The broadcaster explained that it was unable to provide Ofcom with a copy because its recording system had broken down during the week prior to the broadcast in question. Efforts were being made to restore the system before the incident occurred.

Decision

The condition in licences obliging broadcasters to provide material as broadcast is a crucial one, since Ofcom relies on it for evidence when investigating potential breaches of the Code. Whilst we acknowledge VOAR’s claim that efforts were being made to repair their recording system, the failure to reinstate the system with sufficient urgency led in this instance to Ofcom being unable to consider this fairness and privacy complaint in the absence of a recording.

The failure by VOAR to supply the recording from 18 January 2007 was a serious and significant breach of VOAR’s licence. This will be held on record.

Breach of Condition 8 of VOAR’s Licence


Resolved

Sky News
Sky News, 25 April 2007, 19:00

Introduction

A viewer complained that the channel broadcast the word ‘fuck’ during a live link to the opening of the trial of Phil Spector. The complainant objected to the fact that an early evening news programme allowed this to happen and had not used a time delay.

Ofcom asked the broadcaster to comment in respect of Rule 1.14 (the most offensive language must not be broadcast before the watershed or when children are particularly likely to be listening) and Rule 2.3 (generally accepted standards) of the Code.

Response

Sky accepted that the word was broadcast before the watershed but regretted that it was impossible to have anticipated that such language would have been used by the lawyer at the trial.

It maintained that broadcast of the offending word occurred as part of a faithful and contemporaneous account of a public statement by a prosecutor in a court of law, and that use of the word was not aimed at someone present, nor said in spite or anger and was not used in a threatening way.

Sky confirmed that it took seriously the broadcast of offensive language. It assured Ofcom that in cases where offensive language might be anticipated, it would use a time delay system so as to avoid the risk of any potential offence.

Sky apologised for any offence it may have caused by the broadcast of the word.

Decision

Rolling live news channels face different challenges, in terms of compliance, to other broadcasters. These channels provide services which, as a matter of public interest, should be able to report the news accurately as it happens.

Because of the immediacy of news and the necessity to go live at times, the broadcaster has less control of its editorial output. There is always the possibility that material transmitted on these channels may be unsuitable for children, although these services are generally aimed at adults and for a ‘self-selecting’ audience.

While news channels should always aim to minimise the use of offensive language pre-watershed, there are exceptional occasions when, because of their nature, such language is broadcast.

In this case, Ofcom took the view that offensive language was unlikely to have been anticipated from a live news report from a courtroom, unlike for example, in programmes where the inclusion of such language was more likely and necessitated greater care over compliance.

We then considered the context of this programme and whether within context it had complied with Rule 2.3. We took into account the editorial content, the service on which the material was broadcast, the likely size and composition of the potential audience and any supporting information that was given. In this case, it was a live news broadcast from a courtroom, contained within a rolling news service, and aimed primarily at an adult audience. An apology was made very soon after the word had been broadcast.

We also considered the broadcast of this word in the light of Rule 1.14: broadcast of the most offensive language before the watershed. Ofcom notes the word ‘fuck’ is one of the most offensive swear words and should not be broadcast before the watershed or when children are likely to be listening. However, its broadcast in this instance was an isolated incident in a live news report, unlikely to attract a significant child audience. Furthermore, we believe it would not normally be expected to be used in the circumstances of this particular live report.

We welcome the apology given shortly after the incident and Sky’s assurances that it takes the broadcast of offensive language seriously. Taking into account all of these factors, Ofcom considers the matter resolved.

Resolved


Fairness and Privacy Cases

Upheld in Part

Complaint by Mrs Anwar Begum
Sky News Report: Forced Marriages, BSkyB, 29 March 2006

Summary: Ofcom has partly upheld this complaint of unfair treatment and unwarranted infringement of privacy.

The programme reported on forced marriages and featured three of Mrs Anwar Begum’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.

Mrs Begum complained that she was treated unfairly and that her privacy was unwarrantably infringed in the programme as broadcast in that: it told “lies” about her family; neither she nor her family were told about the broadcast of the programme; and, it revealed her family home address and her family name (Hussain).

The broadcaster, BSkyB, argued that the report did not tell “lies” and that it centred on the experiences of three of her daughters and was told in their own words. It said that her husband and her daughters were aware that the report was to be broadcast. It argued that the disclosure of the Hussain family name did not result in any unfairness to Mrs Begum in the context of a report which identified her two daughters who participated willingly in the programme and had agreed to be identified. It also said that her privacy was not infringed by, nor did any unfairness result from, showing the family home as there was insufficient information to identify its address.

Ofcom found that: the comments made by Mrs Begum’s daughters in the report were likely to materially affect viewers’ understanding of Mrs Begum and her alleged role in the marriages of two of her daughters. This amounted to a serious criticism of Mrs Begum and the programme makers’ failure to give her an appropriate and timely opportunity to respond to the allegations resulted in unfairness to her.

Ofcom also found that: Mrs Begum, would have been aware of the report and that it was to be broadcast; that as the family name was already in the public domain, it was reasonable for the report to have used the names of the sisters who agreed to appear in the programme. Ofcom took the view that the identification of Mrs Begum as belonging to this family did not result in unfairness to her; and, that the images of Mrs Begum’s home were not sufficient to be able to identify the location or address of the property. Ofcom therefore found that Mrs Begum’s privacy had not been unwarrantably infringed in the programme as broadcast.

Introduction

On 29 March 2006 , Sky 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 the 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 received from their parents 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 a man of her own choice. The report also alleged that her sister, ‘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.

Mrs Anwar Begum is Mr Hussain’s wife and the mother of the three sisters featured in the programme. Mrs Begum did not appear in the programme herself, nor was she referred to by name. However, Mrs Steele made a specific reference to her mother in the report. She stated that:

“I was 16, for God’s sake. I had the rest of my life ahead of me. They didn’t think about it. My mother was not willing to help me when I begged her…when your child is begging you for help and you’re quite willing to ignore it in the hope that they will please your relations and the rest of the community, why should I turn round and try and understand their feelings?”

Also, all three sisters, Mrs Steele, Ms Shafofta Hussain, and ‘Saima’, referred to their “parents” and made other references to their parents as “them” and “they” when making their allegations in the report.

The complainant’s husband Mr Makhtoor Hussain, the father of the three sisters who featured, 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, Ms Eve Richings, ‘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 house as being located in Peterborough .

Mrs Begum complained to Ofcom that she was treated unfairly in the programme and that her privacy was unwarrantably infringed in the programme as broadcast.

The Complaint

Mrs Begum’s case

In summary, Mrs Begum complained that she was treated unfairly in the programme in that:

a) the programme told “lies” about her family, namely that they (Mrs Begum and Mr Hussain) had forced their daughters into forced marriages and she and her family were not told about the broadcast of the programme in advance; and,

b) the family’s address was given in the programme along with the family name.

In summary, Mrs Begum also complained that her privacy was unwarrantably infringed in the broadcast of the programme in that:

c) her family home address was given in the programme; and,

d) “different family issues” were spoken about on the programme.

BSkyB’s case

In summary and in response to Mrs Begum’s fairness complaints, BSkyB said that:

a) BSkyB said that the report did not tell “lies” in alleging that Mrs Begum ad her husband had forced their daughters into marriage. The report centred on the experiences of three of her daughters and was told in their own words. BSkyB said that it was reasonable to include their accounts in the report as the journalist concerned, Ms Eve Richings, had first heard about their experiences through contacts at the Foreign Office and had met Mrs Steele at the launch of a Home Office leaflet for schools about forced marriages. Mrs Steele had given a public account of her story at the launch and her story had been previously published in a newspaper.

BSkyB said that, in accordance with Ofcom’s Broadcasting Code, the programme makers had approached the complainant’s husband Mr Hussain (directly and subsequently through his solicitor) offering him an opportunity to respond to the allegations made by his daughters and to put forward his side of the story. However, according to Ms Richings’s statement submitted in support of BSkyB’s response to the complaint, Mr Hussain declined the offer and Ms Richings left her business card with him. Shortly after giving Mr Hussain her business card, his solicitor contacted Ms Richings and said that she would make enquires to see if she could give a statement on Mr Hussain’s behalf.

BSkyB said that in order to present Mr Hussain’s side of the story in an appropriate light, BSkyB included his ‘doorstepped’ explanation that: he did not want to make any comment; just wanted his daughters “to be happy”; and, that he agreed that the matter had had a devastating affect on his family. BSkyB argued that the image of Mr Hussain as a compassionate and understanding father concerned only for the happiness of his daughters in the report was in stark contrast to the account portrayed by his daughters. BSkyB said that if the footage of Mr Hussain had not been included, he would have been portrayed in a significantly worse manner in the report and so, by implication, would the complainant, Mrs Begum.

BSkyB said that contrary to Mrs Begum’s complaint, her family were forewarned of the report’s broadcast. Her husband, Mr Hussain (via his solicitor) and her daughters were informed about the programme before broadcast. In these circumstances, BSkyB said that Mrs Begum was not treated unfairly through any lack of notice of the broadcast of the report

b) BSkyB stated that while the report did show the outside of her house, what was shown was not sufficient to reveal the address of the property to viewers. Accordingly, it said that showing the outside of the house in this way was not unfair to Mrs Begum. BSkyB also said that it was not unfair for the report to reveal the Hussain family name as it identified two of Mrs Begum’s daughters who had agreed to be identified and willingly participated in the programme. In addition, BSkyB said that one of her daughters, Mrs Steele, had previously been featured in a newspaper article in which she was identified by her full name (referred to as Zaira Hussain in the article), including the family name. Accordingly, BSkyB said that the family name was already in the public domain in respect of the allegations made in the report.

In summary, and in response to Mrs Begum’s privacy complaint, BSkyB said that:

c) BSkyB argued that the address details of the family home were not given the report, nor was the inclusion of the footage taken of the outside of Mrs Begum’s home sufficient to identify the location or address of the property other than it was in Peterborough. Accordingly, BSkyB argued that her privacy was not infringed by the report, as the outside of the house was only shown in context of Mr Hussain’s explanation as to why he did not wish to comment further.

d) BSkyB said that it was not clear what “different family issues” Mrs Begum was referring to in her complaint. There was insufficient detail or explanation in the complaint to enable BSkyB to respond to this element of Mrs Begum’s complaint of unwarranted infringement of privacy in the broadcast of the programme.

Decision

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 programme 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:

Unfairness

Ofcom considered these 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. Ofcom also took account of 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; and, anyone whose omission could be unfair to an individual or organisation has been offered an opportunity to contribute. Also it took account of 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.

a) Ofcom first considered Mrs Begum’s complaint that the programme unfairly told “lies” about her family, namely that they (Mrs Begum and her husband, Mr Hussain) had forced her daughters into marriages, and that she and her family were not told about the broadcast of the programme in advance.

Although Mrs Begum was not named in the report, Ofcom noted the comments made by Mrs Steele in the programme that specifically referred to her:

“I was 16, for God’s sake. I had the rest of my life ahead of me. They didn’t think about it. My mother was not willing to help me when I begged her…when your child is begging you for help and you’re quite willing to ignore it in the hope that they will please your relations and the rest of the community, why should I turn round and try and understand their feelings?”

Ofcom also noted the comments made by ‘Saima’:

“There is no right way of punishing them. If they could get six months in a prison cell then they’ll realise what I felt like – and I didn’t do anything wrong. Six months is along time...half a year of my life, wasted.

(off camera question): So you think they deserve it, if they finally know what you felt like?

 They deserve, they deserve a lot more, a lot more than prison.”

Ofcom also noted the commentary said that:

“Zaira feels she’ll never forgive them...”

 “Zaira believes if forced marriage was crime – her parents would havethought twice before subjecting her to one - so do her two sisters”.

Ofcom considered 7.9 of the Code referred to above and concluded that it was reasonable for the programme makers to include in the report the allegations of three of Mrs Begum’s daughters based on their direct personal experiences. Ofcom considered Mrs Begum’s complaint that she was not informed about the programme in advance and, in particular, considered whether or not Mrs Begum herself should have been afforded an appropriate and timely opportunity to respond to the comments made by her daughters in the programme. Ofcom had regard to Practice 7.11 of the Code when considering this element of her complaint.

Ofcom first considered whether or not the comments of Mrs Begum’s three daughters alleged wrongdoing, incompetence or made significant allegations about her specifically. It was clear to Ofcom, from watching the programme and reading a transcript of it, that her daughters’ comments, and in particular Mrs Steele’s specific reference to her mother, did have the potential to convey the impression to viewers that Mrs Begum was complicit in the forcing of two of her daughters into marriage against their will and to have been unresponsive to their pleas for help.

Ofcom noted that Ms Richings, the programme’s reporter, had approached Mr Hussain (Mrs Begum’s husband) and his solicitor and had given him an opportunity to respond to the allegations. Ofcom noted that, according to Ms Richings’s statement, she had left her business card with Mr Hussain. Subsequently his solicitor had made contact with Ms Richings and had said that she would consider the possibility of providing a statement on Mr Hussain’s behalf. Ofcom noted that Ms Richings did not say in her statement that Mr Hussain’s solicitor was asked to provide a response on behalf of Mrs Begum.

Ofcom noted that there was nothing in BSkyB’s response, or in the programme itself, to suggest that the programme makers had specifically approached Mrs Begum to give her an opportunity to respond to the allegations made by her daughters.

Taking these factors into account, Ofcom considered that the comments made by Mrs Begum’s daughters in the report, and in particular the comments made by Mrs Steele and ‘Saima’, were likely to materially affect viewers’ understanding of Mrs Begum and her alleged role in the marriages of the two daughters featured in the report. It was for these reasons that Ofcom considered that the allegations made in the programme did amount to a serious criticism of Mrs Begum. Ofcom considered that in these circumstances, it was not sufficient for the programme makers to rely solely on approaching Mr Hussain and his solicitor for a response to the allegations, as the allegations were also equally aimed at Mrs Begum and a specific approach to her was not made. Ofcom noted that such an approach would have informed Mrs Begum about the programme in advance and offered her an appropriate opportunity to respond to the allegations discussed above. While Mrs Begum may have been aware, through her husband’s solicitor, of the programme’s preparation, Ofcom found that the programme makers did not give Mrs Begum an appropriate and timely opportunity to respond to the allegations made in the programme since a specific approach was not made to her.

Accordingly Ofcom found this resulted in unfairness to Mr Begum.

b) Ofcom considered Mrs Begum’s complaint that the family’s address was unfairly given in the programme along with the family name.

In considering this element of Mrs Begum’s complaint, Ofcom took account of Practice 7.9 of the Code referred to above.

Having examined the programme as broadcast and read a transcript of it, Ofcom noted that the exterior of Mrs Begum’s home was shown and that the commentary had stated that it was located in Peterborough . Ofcom noted, however, that the footage did not reveal any house name or number or any other distinguishing signs such as a street name or recognisable landmarks.

In these circumstances, Ofcom was satisfied that the information disclosed in the programme in relation to her home was insufficient to identity her address or its location other than it was in Peterborough and therefore found that this was not unfair to her. In any event it was unclear as to how the identification of her family home would have resulted in unfairness to Mrs Begum.

In consideration of Mrs Begum’s complaint that the family name was used in the programme and that this was unfair to her, Ofcom noted that the Hussain family name was used in the programme (although the complainant uses the name Mrs Anwar Begum). It also noted that the family name was already in the public domain as the story of one of the three sisters had been featured in a newspaper article. In these circumstances, Ofcom was satisfied that it was reasonable for the report to have used the names of the sisters who appeared in the programme and that it was not unfair to Mrs Begum for her family name to be referred to in it.

In these circumstances, Ofcom found that there was no unfairness to Mrs Begum in these respects.

Privacy

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). In addition to this, Ofcom took into account Practice 8.2 of the Code which states that information which discloses the location of a person’s home or family should not be revealed without permission, unless it is warranted.

c) Ofcom considered Mrs Begum’s complaint that her privacy was unwarrantably fringed in the broadcast of the programme in that the address of her family home was given in the programme.

Ofcom first considered whether or not Mrs Begum had a legitimate e xpectation of privacy concerning the revelation of her family home and its address in the programme. In deciding this, Ofcom took account of Practice 8.2 of 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. In these circumstances, therefore, Ofcom was satisfied that Mrs Begum did have a legitimate expectation of privacy concerning her family’s home address.

Ofcom then considered whether or not Mrs Begum’s privacy was infringed in the broadcast of the programme. Having examining the footage in the programme, Ofcom noted that only the outside of the house was shown in close detail. No number or house name was disclosed, nor was any mention made of the location of the house other than it was in Peterborough .

In these circumstances, Ofcom was satisfied that the address details of Mrs Begum’s home were not disclosed in the report and that the images of the exterior of her house were not sufficient to be able to identify the location or identify the address of the property. Ofcom therefore found that Mrs Begum’s privacy had not been infringed in the programme as broadcast. In these circumstances, it was not necessary for Ofcom to go on to consider whether or not any infringement was warranted.

d) Ofcom considered Mrs Begum’s privacy complaint that “different family issues” were spoken about on the programme.

Ofcom approached Mrs Begum on repeated occasions to seek larification of the meaning of the “different family issues” complained of. However, Mrs Begum did not respond and so no clarification of this complaint was provided. Ofcom considered that in these particular circumstances, it was not possible for it to adjudicate on this point. It therefore found there was no infringement of privacy to Mrs Begum in this respect. In these circumstances, it was not necessary for Ofcom to go on to consider whether or not the infringement was warranted.

The complaint of unfair treatment was partly upheld. Mrs Begum’s complaint of unwarranted infringement of privacy in the programme as broadcast was not upheld.

Accordingly, Ofcom found the broadcaster in breach of Rule 7.1 of the Code.


Not Upheld

Complaint by Mr Gary Hall
MacIntyre’s Big Sting: Wembley, Five, 22 February 2006

Summary: Ofcom has not upheld this complaint of unfair treatment and unwarranted infringement of privacy in both the making and broadcast of the programme. The programme followed a police operation to affect outstanding arrest warrants by inviting unsuspecting offenders to a bogus football event. Mr Gary Hall was one of those invited and subsequently arrested by the police.

Mr Hall complained to Ofcom that he was treated unfairly in the programme in that: he was portrayed unfairly; and, it included incorrect statements about him. He also complained that his privacy was unwarrantably infringed in both the making and broadcast of the programme in that he was “entrapped” into appearing in the programme and that he did not give his permission for the footage taken of him to be used.

Ofcom was satisfied that the programme did not portray him unfairly and in a way that would have materially affected viewers’ understanding of Mr Hall and the motoring offences that he had been convicted of.

Ofcom found that Mr Hall had a legitimate expectation of privacy in the circumstances and that the surreptitious filming of Mr Hall at the event and the subsequent broadcast of that footage did infringe his privacy.

However, Ofcom was satisfied that there was a strong public interest justification in filming the police operation and what happened to Mr Hall at the event to highlight the issue of outstanding arrest warrants and the wider impact of criminal behaviour. Ofcom therefore found that the programme makers were justified in: filming Mr Hall at the event; including that footage in the programme; and, in identifying Mr Hall.

Introduction

On 22 February 2006 , Five broadcast MacIntyre’s Big Sting: Wembley. This programme, one of five in the series, followed police operations to enforce outstanding arrest warrants. The programme featured a launch party in the new Wembley stadium for a new and fictional football magazine called “Balls”. However, the event was a set-up devised by the programme makers and the police to entice unsuspecting offenders wanted on post-conviction arrest warrants for failing to appear at court for not paying fines or for failing to complete community service. The police were waiting behind the scenes of the event to arrest those who attended. Mr Gary Hall was one of the people invited to the event and was arrested by police officers after being led though a number of phoney launch activities. Mr Hall was named in the programme and footage of him was included in it.

Mr Hall complained to Ofcom that he was treated unfairly in the programme and that his privacy was unwarrantably infringed in the both the making and the broadcast of it.

The Complaint

Mr Gary Hall’s case

In summary, Mr Hall complained that he was treated unfairly in the programme as broadcast in that:

  1. The programme stated wrongly that Mr Hall was “threatened with jail” and that he had spent the night in jail after the event.
  2. The programme portrayed him as a man “out to do wrong” without giving him the opportunity to respond to the allegations made against him.
  3. The programme connected him, wrongly, with the death of another man’s son.
  4. The footage of him was edited unfairly. In particular, Mr Hall said that:

    i) On arrival at the event, he was promptly put into the prize car and given a beer to drink, to which he responded, "this doesn’t look good”, and so handed it back. This, Mr Hall said, was not shown in the programme.

    ii) He was shown a video of someone who supposedly looked like David Beckham and was asked if he thought that it looked like Beckham. To be polite, Mr Hall said that he answered “a bit”.

    iii) He was confronted by around 30 police officers who arrested him for failing to appear at court.

    iv) There was a Sven-Goran Eriksson look-a-like at the penalty shoot out who was shown on the programme as if he was “the real one”.

    v) The programme makers blatantly tried to portray him as “some dumb down an’ out”. Mr Hall said that the footage was edited to make it seem as such.

e) Mr Hall also complained that his privacy was unwarrantably infringed in both the making and broadcast of the programme in that the programme makers came to his home on a number of occasions in the guise of event organisers and “entrapped” him into appearing in the programme. As it was easy to get him to attend, Mr Hall said that it was unwarranted to have included footage of him in the programme. Mr Hall said that his offences did not warrant his inclusion in the ‘sting’ operation and that if he was so easily accessible (that is, at home), the police could have “handled” the matter. Mr Hall also said that he did not sign a release form and that he objected to appearing in the programme. Mr Hall said that had been in constant email contact with the Five from the day of the event until two days before it was broadcast.

Mr Hall said that both the programme makers and the police had set up an elaborate ‘scam’ to entrap people, including him, into participating in a launch of a new soccer magazine that did not exist. Mr Hall said that this was backed up by phoney literature sent to his home and numerous visits by people posing as magazine representatives to encourage him to attend.

Five’s case

In summary, and in response to Mr Hall’s complaint, Five said that the non-appearance by defendants at court, either to face charges or for sentencing, is a significant problem for the police, the Crown Prosecution Service and the judicial system. With this in mind, both Five and the programme makers believed this issue to be one of important public interest which warranted highlighting.

Five said that the police had identified a need to enforce arrest warrants which were outstanding and where offenders had not been apprehended and bought before the courts by conventional means. As part of this process, the police undertook ‘sting’ operations where they invited those who were the subject of outstanding arrest warrants to an event where they could be detained and then processed through the judicial system. This operational method, as depicted in the programme, was used by the police both in the UK and abroad and was not novel. Five said that the operation and the event at Wembley were under the ultimate control and direction of the police. The role of the programme makers was to help organise a credible event which would attract those reluctant to attend court and to film the operation. The operation at Wembley took place on 29 October 2005 .

In Mr Hall’s case, Five said that he was originally stopped by police on 3 June 2004 and was subsequently charged with driving a heavy goods vehicle in a dangerous condition. On 5 November 2004 , Mr Hall was found guilty of a number of offences associated with this incident and was due to be sentenced on 3 December 2004 . However, Mr Hall failed to appear and a warrant was issued for his arrest. On 20 January 2005 , Mr Hall was arrested and bailed to appear at court on 3 February 2005 . Again, he failed to appear. Between this date and 20 February 2006 (when Mr Hall surrendered himself to the police), he had either: failed to appear at court; was apparently not present when the police tried to execute the arrest warrant at his home; or, the scheduled hearing had to be adjourned because Mr Hall was ill. Five said that Mr Hall was finally sentenced, some 15 months after being convicted, to fines totalling £475, £70 costs and a six months driving ban.

In summary and in response to the specific heads of complaint of alleged unfair treatment made by Mr Hall, Five said that:

  1. The programme did not state that Mr Hall had been “threatened with jail” or that he had spent the night there after his arrest. The only reference to custody in relation to him was made at the end of the programme in which the programme’s commentary stated that Mr Hall had failed to appear at court after his arrest. In the interests of fairness and accuracy, Five said that the continuity announcer had read out over programme’s end credits that Mr Hall eventually handed himself in to the police and was duly sentenced by the court. This information was based on that provided to the programme makers by the police.
  2. The programme did not portray Mr Hall as a man “out to do wrong” as alleged in his complaint. Five said that he was portrayed as a man who had committed a series of motoring offences and had failed on a number of occasions to attend court to be sentenced, thereby wasting police and court time and incurring additional costs payable from the public purse. In the circumstances of this particular programme, Five said that it did not accept that Mr Hall had a right to reply. Also, Five said that it should be noted that Mr Hall had written to Five on 30 October 2005 and had been in email correspondence with Five prior to and after the transmission of the programme. At no time, Five said, did Mr Hall offer any explanation for his conviction or why he had repeatedly failed to attend court which would help justify or explain his conduct and could have been considered for inclusion in the programme.
  3. The programme did not explicitly link Mr Hall to any road accident or fatality as evidenced by the programme’s commentary.
  4. Five said that the untransmitted material provided to Ofcom demonstrated that the footage in which Mr Hall appeared was not edited unfairly. In response to the specific points raised by Mr Hall concerning his portrayal, Five said that:
  1. There was no evidence from the untransmitted footage that supported Mr Hall’s assertion that he had handed back the bottle of beer offered to him by saying “this doesn’t look good”. The footage showed that Mr Hall had kept hold of the beer and did not hand it back until he was asked to do so when moving into the next area of the event.
  2. The programme did include Mr Hall’s comment “it’s not Beckham” when he was shown a video of a David Beckham impersonator. Five said that Mr Hall was not made to look like he believed it was the real David Beckham and, while the sound on the video may not have been audible at the event, its inclusion in the programme raises no issue of unfairness.
  3. Mr Hall was not confronted with 30 police officers when he was arrested at the event. Five said that there were only three police officers present when the arrest was carried out.
  4. There was nothing in the programme which would lead a viewer to believe that Mr Hall was not aware that the Sven-Goran Eriksson impersonator was not the real Sven-Goran Eriksson. In any event, Five said that the manner in which this sequence was edited and included in the programme created no unfairness to Mr Hall.
  5. There was nothing in the programme that supported Mr Hall’s assertion that the editing made him look like “some dumb down an’ [sic] out”. Five said that the programme portrayed Mr Hall as a person who repeatedly failed to attend court for sentencing and that he was someone who was subject to the police operation where he and others could be arrested and then processed through the judicial system.

e) In summary and in response to Mr Hall’s complaint that his privacy was unwarrantably infringed in both the making and broadcast of the programme, Five said that the decision to invite Mr Hall to the event in order to arrest him was an operational matter for the police. As such, any impact this operation had on Mr Hall’s privacy is outside Ofcom's statutory remit to adjudicate on privacy issues in respect of television programmes.

Five said that it was legitimate for the police to include Mr Hall as part of their operation as he had failed to attend court for sentencing. The enforcement of outstanding arrest warrants was a matter of important public interest and Mr Hall's decision not to adhere to the criminal justice system meant that the programme makers were justified in following the police operation to enforce the arrest warrant in the manner the police deemed appropriate as part of a programme highlighting this issue and the wider impact of criminal behaviour. In all the circumstances, Five said that it was clear that any infringement of Mr Hall's privacy by the filming and broadcast in the programme was warranted by his conduct.

Five said that it was justified in using hidden cameras to surreptitiously film Mr Hall on the grounds that the story being investigated was in the public interest, there were reasonable grounds to believe that the material evidence would be obtained and that it was necessary to establish the credibility and authenticity of the story. Permission was given by Five’s Director of Programmes and its Senior Programme Controller, News and Current Affairs. To have filmed openly would have alerted those invited to the event. Once those people were identified and arrested, the programme makers filmed openly.

Five said that the implication of Mr Hall’s complaint was that his offences did not warrant the elaborate nature of the operation. How the arrest warrant was executed was a matter for the police who took the view that the ‘sting’ operation was appropriate in the circumstances. Further, Mr Hall’s position sought to undermine the seriousness of the offences he committed - driving without insurance and without a licence in an un-roadworthy vehicle places other road users at risk of injury or damage to their property. However, the nature of Mr Hall's offences was not necessarily the key issue - it was the fact that he was subject to an outstanding arrest warrant.

Five said that as Mr Hall was the subject of an arrest warrant, his inclusion as part of the operation was, in the police’s view, justified. In other operations those guilty of very minor offences (for example, non-payment of the television licence) have not been included. However, this was not the case with Mr Hall. Five said that Mr Hall asserted in his complaint that as he was at home the police could have easily picked him up there. Again, the manner in which the police executed the arrest warrant was a matter for the police and Five said that it seemed disingenuous of Mr Hall to say that there was no need to take him to the event because the police would have found him at home and so could have arrested him there. It was the fact that he was brought to the police under the auspices of a football event which allowed them to arrest him in a controlled manner.

Five said that it was highly unlikely that anyone detained in the operation would have signed a release form and permitted themselves to be included in the programme. Five believed that the public interest clearly justified the filming of this police operation and the broadcast of the programme without the necessity for written consent.

Five said that it believed that the public interest warranted identifying the individuals arrested as part of the operation. Five said that Mr Hall had sought to have his identity obscured in the programme by falsely alleging that this had been agreed by an employee at Five. Mr Hall then gave himself up to the police on 20 February 2006, the day he received an email confirming that he would be identified in the programme which was due to be transmitted on 22 February 2006. Five said that this meant that four months after the sting operation when Mr Hall can have been in no doubt about his legal obligations, he was still ignoring arrest warrants and failing to attend court to be sentenced. Five questioned whether he would have ever voluntarily given himself up and attended court had it not been for the broadcast of the programme.

Five said that Mr Hall had received an invitation to attend the bogus launch event. However, he had not received the numerous visits to his home by the programme makers as he alleged in his complaint. The programme makers made only one visit to Mr Hall’s home to remind him of the event after he failed to respond to the original invitation. On the day of the event, Mr Hall was picked up by a taxi and taken to the event. No other visits were made to him. Five said that to ensure that Mr Hall would attend the bogus event, he had to be in receipt of his invitation. The visit to his home by non-police staff was designed to ensure that he did not forget to attend the event. The visit was not filmed covertly and he was not filmed going to the event in the taxi. In these circumstances, Five said that the steps taken to get Mr Hall to attend the event (so that he could be arrested along with other people subject to outstanding arrest warrants) was a matter for the police.

In all the circumstances, Five said that it believed that the filming of the operation and the broadcast of the footage identifying Mr Hall was clearly in the public interest and as such any infringement of privacy was “manifestly” warranted.

Mr Hall’s comments

In summary and in response to Five’s statement, Mr Hall said that:

a) Mr Hall made no further relevant comments on this point.

b) Mr Hall said that he did not deem it appropriate to explain his actions to Five as it would not have been scripted in a fair way. He said that his explanation “should be for the police and the court alone, in the form of a police station or courthouse”.

c) Mr Hall made no further relevant comments on this point.

d) Mr Hall made no further relevant comments on these points.

e) Mr Hall said that he had spoken to someone at Five on the telephone who had told him that all voices and faces would be obscured. However, it appeared that there are no records of this conversation.

Mr Hall said that he had not asked for, nor did his actions warrant, the programme makers and the police to entrap him, and for the programme makers to repeatedly appear at his door as phoney representatives. Mr Hall said that “the flyers and copies of the envelopes” evidenced that the programme makers had visited him on more than one occasion. He said that to get him to appear at court would have been achieved by appearing at his door as uniformed officers. Mr Hall said that failing to appear for driving offences did not warrant the police or the programme makers developing an “attachment between [him] and Donal Mcintyre” in the form of a reality show without his consent.

Five’s comments

In summary and in response to the comments made by Mr Hall, Five said that:

a) Five made no further relevant comments on this point.

b) Mr Hall asserted that he did not seek to explain his actions in his emails to Five because he felt they would not have been reflected in the programme in a manner which was fair. However, if it were the case that Mr Hall had felt that he had been unjustly treated by the courts or the police or that he had a legitimate reason for his non-attendance at court, Five questioned the reason why he did not raise this at any time following the operation? Five said that Mr Hall had merely complained about being included in the operation and being filmed and then sought not to have his identity shown in the final programme. Five said that it appeared that Mr Hall did not dispute that the police had the right to arrest him, but that he did not want to be identified in the programme.

Five said that Mr Hall only attended court two days before transmission of the programme. His actions were duly noted and recognised in the programme in the interests of fairness and factual accuracy. Five said that the tone of the programme was appropriate to the coverage of the operation and that there was no implication that Mr Hall was a serious criminal – the nature of his conviction was made clear and the fact that he had not fulfilled his obligation to attend court.

c) Five made no further relevant comments on this point.

d) Five made no further relevant comments on these points.

e) Five said that it was self evident that anyone detained in the operation would not have consented to their inclusion in the programme. It said that in this case, the issue under consideration and the detention of those who had failed to appear at court and had effectively decided to ‘opt out’ of the justice system was a matter of public interest and it was on this basis that the operation was filmed and the programme was broadcast.

Five said that the means of obtaining material was proportionate in all the circumstances given the nature of the operation and the programme. The use of some surreptitious filming was clearly necessary in this case in order not to give rise to any suspicion so that arrest warrants could be carried out by the police. The story was in the public interest and covert filming was necessary to the credibility and authenticity of the programme.

In conclusion, Five said that in all the circumstances, the programme and its content did not breach the Broadcasting Code on fairness and privacy particularly when considered in the context of the fact that Mr Hall repeatedly failed to attend court when directed and took no steps to give himself up voluntarily preferring to argue that it was for the police to come to his home and arrest him. In the light of his actions and attitude any alleged infringement of his privacy was warranted and in the circumstances and proportionate.

Decision

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 in programmes, and from unwarranted infringement of privacy in the making and broadcast of 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 a 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 programme as broadcast. It also watched unedited footage of Mr Hall at the event. In its considerations, Ofcom took account of Ofcom’s Broadcasting Code (“the Code”).

Fairness

In deciding whether or not these individual heads of complaint were unfair, Ofcom considered Rule 7.1 of the Code which states that broadcasters must avoid unjust or unfair treatment of individuals or organisations in programmes.

In the circumstances of this case, Ofcom found the following:

a) Ofcom first considered Mr Hall’s complaint that the programme stated wrongly that he was “threatened with jail” and that he had spent the night in jail after the event.

In addition to Rule 7.1, Ofcom also took into account Practice 7.9 of the Code which states that the broadcaster should take reasonable care before broadcasting a factual programme to satisfy themselves that the material facts have not been presented, disregarded or omitted in any way that is unfair to an individual or organisation.

Ofcom noted that the programme stated that Mr Hall had failed to appear in court after being arrested at the event and that a warrant had been issued for his arrest. It also noted Five’s assertion that after the commentary was recorded and two days before transmission of the programme, Mr Hall had handed himself over to the police and had been sentenced the next day. Ofcom noted the continuity announcement at the end of the programme:

“Well he needed extra time but to his credit Gary did hand himself in to the courts just two days ago. He was ordered to pay £475 in fines for his motoring offences and for not turning up previously. He was also given a six month driving ban. Plus an extra night in custody”.

Ofcom noted that this information had been provided to the programme makers by the police and the night Mr Hall was remanded in custody was the time between him handing himself over to the police and his appearance in court to be sentenced the next day.

Having considered the comments made in the programme, Ofcom was satisfied that the programme did not state, as Mr Hall claims, that he was “threatened with jail” and that he had spent a night in jail after being arrested at the event. Ofcom considered that the only reference in the programme to Mr Hall being remanded in custody after arrest was made at the end of the programme and set out clearly in the context of him voluntarily handing himself over to the police. This, in Ofcom’s view, was presented in the programme in a fair and accurate way. Taking these factors into account, Ofcom was not persuaded that the continuity announcement was likely to materially affect viewers’ understanding of Mr Hall, or the circumstances surrounding his arrest, or being remanded in custody and subsequent sentencing by the court in a way that was unfair to him.

b) Ofcom then went on to consider Mr Hall’s complaint that the programme portrayed him as a man “out to do wrong” without giving him the opportunity to respond to the allegations made about him.

In its consideration of this element of complaint, Ofcom took particular account of Practice 7.11 of the Code 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. Also, according to practice 7.13, where it is appropriate to represent the views of a person or organisation that is not participating in the programme, this must be done in a fair manner.

In these circumstances, Ofcom first considers whether or not the programme has alleged wrongdoing, incompetence or made significant allegations about Mr Hall that would require an opportunity to respond. If the programme did so, then Ofcom considers whether the complainant was afforded an appropriate opportunity to respond to those allegations.

In this case, and having examined the contents of the programme, it was Ofcom’s view, that the programme simply presented Mr Hall as one of a number of people who repeatedly failed to attend court for sentencing. As noted above at head (a) Ofcom was satisfied that the programme presented the circumstances of his arrest, conviction and subsequent sentencing in a fair and accurate manner. Importantly, the programme did not appear to make any allegations that went beyond what had already been established by the courts. Ofcom considered that normally convicted criminals have no legitimate expectation of an opportunity to respond to claims that have already been presented to court and proven to the satisfaction of the court.

In these circumstances, Ofcom considered that it was not incumbent upon Five, in the interest of fairness, to offer Mr Hall an opportunity to respond to the comments included in the programme.

In any event, Ofcom noted that on 30 October 2005 , Mr Hall had emailed Five to complain about the event and stated that he would not give his permission for the footage taken of him to be used in the programme. After this first contact, a number of emails were exchanged between Mr Hall and Five (both before and after the broadcast of the programme). Throughout this email correspondence, Mr Hall did not appear to offer an explanation for his convictions or as to why he repeatedly failed to attend court to be sentenced. Nor did Mr Hall appear to have offered any explanation for his repeated failure to attend court when he was detained at the event. Ofcom noted Five’s assertion that had Mr Hall put forward an explanation for his conduct, it would have been considered for inclusion in the programme. Ofcom recognised that Mr Hall did not consider it appropriate to explain his conduct to Five as her considered the matter to be between him, the police and the courts.

In these circumstances, Ofcom was satisfied that it had been open to Mr Hall to have given some explanation in response to the allegations being made against him. He chose not to do so.

Taking into account all the factors detailed above, Ofcom concluded that there was no unfairness to Mr Hall in this respect.

c) Ofcom considered Mr Hall’s complaint that the programme connected him, wrongly, with the death of another man’s son.

In considering this element of Mr Hall’s complaint, Ofcom had particular regard to Practice 7.9 of the Code.

Ofcom noted the programme’s commentary:

“Gary may not have harmed anyone, but police believe that illegal drivers are five times more likely to be involved in a serious accident. Sometimes the consequences of those actions end in tragedy”.

It also noted that immediately after this commentary line, the focus of the programme shifted from Mr Hall to a father whose son had been killed while crossing a road by an uninsured and unlicensed motorist.

Ofcom was satisfied that the commentary did not link Mr Hall to any fatality or road accident. In fact, the programme made it clear that Mr Hall had not “harmed anyone”. The comments, in connection to the possible fatal consequences of illegal driving, clearly related to an entirely different story and would not have materially affect viewers’ understanding of Mr Hall and the motoring offences that he had been convicted of. In the circumstances, Ofcom found no unfairness to Mr Hall in this respect.

d) Mr Hall complained that the footage of him was edited unfairly. He highlighted five specific issues which are dealt with below. In considering this element of Mr Hall’s complaint, Ofcom had particular regard to Practice 7.6 of the Code which states that when a programme is edited, contributions should be represented fairly and Practice 7.9 of the Code.

i) Ofcom considered Mr Hall’s complaint that on arrival at the event, he was promptly put into the prize car and given a beer to drink. Mr Hall claims that he responded, "this doesn’t look good”, and so handed it back, but that this was not shown in the programme.

By examining the unedited footage of the event that Ofcom requested and the programme itself, Ofcom noted that there was no evidence to support Mr Hall’s assertion that he had handed back his bottle of beer or had made the comment he claimed he had. In fact, it was clear to Ofcom from examining the programme as broadcast that Mr Hall had being holding a bottle of beer and was asked to put it down when he moved on through the event to the penalty shoot out area. In these circumstances, Ofcom was satisfied that the footage shown in the programme had been presented fairly in the programme and that no unfairness had resulted to Mr Hall in this respect.

ii) Ofcom considered Mr Hall’s complaint that he was shown a video of someone who supposedly looked like David Beckham and was asked if he thought that it looked like Beckham. To be polite, Mr Hall said that he answered “a bit”.

Ofcom noted that Mr Hall was shown in the programme to say “It’s not Beckham” when the video of a David Beckham impersonator was played to him. In Ofcom’s view, the inclusion of this comment in the programme was unlikely to lead viewer to believe that Mr Hall had been duped into thinking that the impersonator was the real David Beckham. In these circumstances, Ofcom was satisfied that the programme makers fairly represented Mr Hall’s reaction to the video and his belief that it was an impersonator and not the real David Beckham. Ofcom found no unfairness to Mr Hall in this respect.

iii) Ofcom considered Mr Hall’s complaint that he was confronted by 30 police officers who arrested him for failing to appear at court.

By examining the unedited footage of the event Ofcom noted that there were three police officers present at the time of Mr Hall’s arrest. This was represented in the programme in a straightforward and factual manner. In these circumstances, Ofcom was satisfied that this element of the programme had not been edited unfairly and Ofcom, therefore, found no unfairness in the programme to Mr Hall in this respect.

iv) Ofcom considered Mr Hall’s complaint that there was a Sven-Goran Eriksson impersonator at the event who was portrayed in the programme as “the real one”.

Again, having examined the unedited footage taken at the event and the programme itself, Ofcom was satisfied that there was nothing to suggest to viewers that Mr Hall had believed that it was the real Sven-Goran Eriksson rather than an impersonator. Ofcom concluded that the footage had been presented in a fair manner and that there was no unfairness to Mr Hall in including this footage in the programme.

v) Ofcom considered Mr Hall’s complaint that the programme makers blatantly tried to portray him as “some dumb down an’ [sic] out”. Mr Hall said that the footage was edited to make it seem as if he was. Ofcom noted Five’s response to Mr Hall’s complaint that the programme had portrayed Mr Hall as nothing more than a person who had repeatedly failed to appear at court for sentencing after being convicted for a number of offences and that he was arrested at an event that had been organised by the police in order to apprehend Mr Hall and others like him. Ofcom was satisfied that the programme presented this fairly in the programme and that there was no suggestion, in Ofcom’s view, in the programme that Mr Hall was portrayed as “some down an [sic] out”. In these circumstances, Ofcom found no unfairness to Mr Hall in this respect.

Privacy

e) Ofcom considered Mr Hall’s complaint that his privacy was unwarrantably infringed in both the making and broadcast of the programme in that: the programme makers came to his home on a number of occasions; that he was “entrapped” into taking part in the programme and that his offences did not warrant his inclusion in it and that he did not sign a release form or give his permission for footage of him to appear in the programme.

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. When considering and adjudicating on a complaint of unwarranted infringement of privacy, Ofcom first determines whether in its view the complainant had a reasonable expectation of privacy in the circumstances. This may depend simply on the nature of the information or image itself or on a combination of factors. Ofcom then addresses 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).

In addition to Rule 8.1 of the Code referred to above, Ofcom also had regard to Practice 8.5 of the Code which states that any infringement of privacy in the making of a programme should be with the person’s and/or organisation’s consent or be otherwise warranted and Practice 8.6 which states that if a broadcast of a programme would infringe the privacy of a person or organisation, consent should be obtained before the relevant material is broadcast, unless the infringement of privacy is warranted .

Ofcom also had regard to Practice 8.9 which states that the means of obtaining material must be proportionate in all the circumstances and in particular to the subject matter of the programme and also to.

Mr Hall’s home

Having examined the programme and the unedited footage, Ofcom was satisfied that Mr Hall had not been filmed by the programme makers being picked up at his house by the taxi to take him to the event.

Further, it also noted that Mr Hall failed to provide evidence to substantiate his claim that the programme makers had visited his house on a number of occasions.

In the circumstances, Ofcom was satisfied that Mr Hall’s privacy was neither infringed in the making or the broadcast of the programme regarding his being filmed at his home.

The Event

Ofcom examined the unedited footage that was taken of Mr Hall arriving at the event and then at the event itself, which was held on private property. Ofcom noted that the footage of Mr Hall was taken surreptitiously by a number of hidden cameras and Mr Hall was not made aware by the programme makers until after he was identified and arrested by the police. Mr Hall has not specifically made a complaint that he was secretly filmed, Ofcom therefore only notes the reasons given by Five for filming the footage and including it in the programme.

Before considering whether or not Mr Hall’s privacy was infringed, Ofcom first considered whether or not he had a legitimate expectation of privacy in the circumstances.

Ofcom considered that Mr Hall had a heightened expectation of privacy when attending the event that had been purposefully set up by the police as part of an operation to execute outstanding arrest warrants, especially when the event was being secretly filmed and held on private property. In circumstances where a person is filmed committing a criminal offence, Ofcom appreciates that a person’s expectation of privacy is diminished by their actions. However, in Mr Hall’s case, although he was wanted by the police for repeated failure to attend court for sentencing, he was not actually engaged in any criminal activity or wrongdoing. In the particular circumstances of this case, Ofcom took the view that Mr Hall had a legitimate expectation of privacy and could have reasonably assumed that he would not be filmed surreptitiously and would not have expected this footage to be shown to a wider audience.

Ofcom then went on to consider whether or not this legitimate expectation of privacy was infringed in both the making and in the programme as broadcast. Ofcom considered that: Mr Hall was filmed covertly while at the event until his arrest; that this filming was conducted surreptitiously without his knowledge or consent; that at the time he had not been engaged in any wrongdoing or criminal activity; and that no steps were taken by the programme makers to obscur his identity. Also, Ofcom also took into account of the fact that Mr Hall did not provide Ofcom with any evidence to support his claim that Five had promised him that his identity would be obscured in the programme. Taking these factors into account, Ofcom was satisfied that the surreptitious filming of Mr Hall at the event the the subsequent broadcast of that footage in the programme did infringe Mr Hall’s privacy.

Ofcom noted that the manner in which the operation was conducted was a matter for the police. It noted that the question of whether or not Mr Hall’s offences warranted the approach taken by the police was also a matter for the police and not a consideration for Ofcom.

Ofcom went on to consider whether or not the infringement of Mr Hall’s privacy outlined above was warranted in the circumstances. In Ofcom’s view, it was clear that there was a strong public interest justification to filming the police operation and what happened to Mr Hall at the event. Ofcom took the view that the means the police are required to enforce outstanding arrest warrants was a matter of legitimate public interest and Mr Hall’s breach of his obligation to attend court for sentencing meant that it was legitimate for the programme makers to include footage of him (and others featured in the programme) at the event to highlight this issue and the wider impact of criminal behaviour. In these circumstances, and for the reasons given above, Ofcom considered that the programme makers were justified in: filming Mr Hall at the event; including that footage in the programme; and, in identifying Mr Hall.

Ofcom concluded that Mr Hall’s privacy had not been unwarrantably infringed in either the making or broadcast of the programme.

Accordingly, Mr Hall’s complaint of unfair treatment and unwarranted infringement of privacy in both the making and broadcast of the programme was not upheld.


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