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Broadcast Bulletin Issue number 57 - 03|04|06

Ghostbusters, The Ultimate Fighter 2, Drivetime, Kerrang!, Where is Jack Bauer?, The Paul O’Grady Show & Complaint by Ms Sheila Bransfield

Standards cases

In Breach

Ghostbusters
Channel S, 30 January 2006, 16:45

Introduction

Channel S is a general entertainment channel aimed at a Bengali speaking audience. During the broadcast of this children’s cartoon, the channel ran scrolling text on the bottom of the screen inviting viewers to call a premium rate telephone number to voice their views on the digging in Brick Lane for the Crossrail project.

The text message gave no information to viewers about the cost of calling the premium rate number.

A viewer believed that the inclusion of the text breached Ofcom’s Broadcasting Code rules.

Response

Channel S said that the Crossrail Project was an issue of great relevance to its target audience and that it was under pressure from community leaders to consult viewers on this issue. The message was run on a test basis only and removed on receipt of the complaint. No viewers called the number during the children’s programme in question.

As a result of the complaint, Channel S had made programme producers aware of the Code’s requirements on the use of premium rate numbers in programmes.

Decision

The Broadcasting Code states:

10.9 Premium rate numbers will normally be regarded as products or services, and must therefore not appear in programmes, except where:

  • they form part of the editorial content of the programme; or
  • they fall within the meaning of programme-related material

10.10 Any use of premium rate numbers must comply with the Code of Practice issued by the Independent Committee for the Supervision of Standards of Telephone Information Services (ICSTIS).

The premium rate telephone number included in the text message was unrelated to the programme it accompanied and there was no information about the cost to viewers of calling it – which is a requirement of the ICSTIS Code.

While we welcome the steps taken by Channel S to remedy the error, we are concerned by the channel’s apparent lack of awareness of the requirements of the Code and of suitable pre-transmission compliance procedures.

Breach of Rules 10.9 and 10.10 (Premium rate numbers)


The Ultimate Fighter 2
Bravo, various dates December 2005, 23:00

Introduction

The Ultimate Fighter 2 was an American reality show which followed a group of men training to become eligible for the title of ‘Ultimate Fighter’. The men had been chosen by a panel and lived in a house together for the duration of the competition. The cameras followed their everyday living in the house, their training regimes and their qualifying fights.

A viewer complained that the series had throughout included prominent references to ‘Right Guard Extreme’ deodorant.

When viewing the recordings, it was clear that at least seven of the fourteen episodes featured a close up of the deodorant. There were also a number of references to ‘Xyience’ - a dietary supplement which is available to buy in the UK - both visual (including branded clothing and a logo printed on the fighting arena) and verbal. We requested the broadcaster’s comments with reference to Rule 10.4 of the Broadcasting Code, which states:

“No undue prominence may be given in any programme to a product or service.”

The Code goes on to say:

“Undue prominence may result from:

  • the presence of, or reference to, a product or service (including company names, brand names, logos) in a programme where there is no editorial justification; or
  • the manner in which a product or service (including company names, brand names, logos) appears or is referred to in a programme. “

Response

Flextech, which owns Bravo, said that The Ultimate Fighter 2 was an acquired programme from the United States . It therefore could not be sure whether any negotiations had taken place between the programme makers and either Right Guard or Xyience. As Bravo had not had any involvement in the making of the programme, it had not benefited financially from any deal that might have taken place.

Flextech said that the programme was part reality show, part fly-on-the-wall sports documentary. In the final episode, two fighters would win a contract with the Ultimate Fighting Championship, a mixed martial arts sporting event established in 1993. In this sporting context, visual references to the Xyience brand in and around the fighting area and on the competitors’ clothing were editorially justified and not prominent.

Flextech also considered that verbal references to Xyience’s supplements and protein shakes were brief and connected to the editorial of the programme. The competitors’ diets were a key part of their training strategy. The programme was not scripted and certain brand names cropped up naturally in conversations related to training. Flextech said that these were editorially justified and of interest to viewers with a keen interest in mixed martial arts training.

Turning to the concerns about Right Guard Extreme deodorant, Flextech referred to a particular episode of the series where the product featured in close-up. It explained that it had not originally considered this to be unduly prominent, taking into account a number of factors, including: that the shot of the deodorant was just over one second long; that there was no other reference, visual or verbal, in the programme; and that the inclusion of the shot helped establish that it was the morning and that the competitor was preparing for the day’s training.

However, Flextech said it would be guided by specific advice from Ofcom on this matter and would remove the close-up if Ofcom considered it inappropriate.

Decision

The Broadcasting Code prohibits product placement (where a product is included within a programme in return for payment to the programme maker or broadcaster). However, arrangements covering the inclusion of products in a programme acquired from outside the UK are not considered to be product pla cem ent, provided the broadcaster regulated by Ofcom does not directly benefit from the arrangement.

In this case, we recognise that the programme was acquired from the United States , where product pla cem ent is commonplace. We have no evidence to suggest that Flextech benefited from any product pla cem ent arrangement. Our concern is therefore whether the way in which the products appeared in the programme was unduly prominent.

Rule 10.4 states that “undue prominence” should not be given to a product or service. This helps ensure commercial considerations do not undermine the editorial independence of the content.

Our guidance on Rule 10.4 acknowledges that brands are an integral part of modern society and that this will inevitably be reflected on television and radio as in other media. There is therefore no prohibition of references to branded products and services within programmes. Editorial justification will depend on the nature of the programme and there may be certain types of programme, e.g. sports and music coverage in television programmes, where there is a more general acceptance that brands might feature.

Taking this into account, we decided that the visuals of the Xyience brand – on clothing and in the fighting arena - were not problematic under Rule 10.4 and therefore not in breach of the Code.

However, there were a number of verbal references to Xyience’s products that were, in our view, unduly prominent. The products were mentioned a number of times in a manner that went beyond natural discussion of dietary regimes and appeared to be deliberate endorsements by one or more of the competitors:

For instance, in episode 8, after a training scene in which one of the competitors was told he needed to lose weight, there followed a scene where two men discussed the merits of a Xyience protein shake:

“Xyience is always my number one thing…”

“Xyience testosterone – it’s legal – it’s good to take it…”

In episode 10, a trainer and two of his team members were standing in front of a Xyience dispensing machine, carrying branded cans of the supplement:

“Are you taking the Xyience stuff home?...Who else needs a can?...”

“I sure could use one…”

In episode 11, some of the competitors were shown preparing drinks – the Xyience brand was again clearly visible:

“I got Xyience in here. It’s good.”

“It is good. It does your body good.”

We accept that Bravo was not involved in any commercial deals involving the brand. However, we considered that the discussion of the products exceeded what was editorially justified. These verbal references gave undue prominence to the brand and were in breach of Rule 10.4.

In addition, we noted that many of the fourteen episodes featured close visual references to Right Guard Extreme deodorant – again in most of these cases there appeared to be no editorial justification – the shots just appeared as close-up cutaways. These shots were not essential to the narrative. However, in view of Flextech’s comment that it would be guided by Ofcom on this particular matter, removing those shots which were unduly prominent, we consider this aspect resolved. In terms of Right Guard Extreme, we would expect any repeats of the series to be appropriately complied. We would not expect to see similar undue prominence in any future series of the show broadcast on Bravo.

Verbal references to Xyience put this element of the programme in breach of Rule 10.4 of the Code.

The issue concerning undue prominence given to Right Guard Extreme has been resolved in light of the broadcaster’s assurances.


Resolved

Drivetime

96.4 FM BRMB, 27 January 2006, 18:15

Introduction

The presenter read out a newspaper story about a man who gave evidence in court against a prostitute who bit his penis when he refused to give her more money. After concluding the story, the presenter added his own comment - that the man’s mistake was to start haggling about the price while his ”willy” was “still in her mouth”.

A listener complained that these remarks were inappropriate for the time of day as children could have been listening.

Response

BMRB apologised for any offence caused and agreed that the remark was unsuitable for broadcast at that time of day. It said it had spoken to the presenter regarding the future selection process of material for the show.

GCap, BMRB’s parent company said it believed that the presenter was simply making light of a story he had read about in the press. However, it appreciated that some of the detail was “not altogether appropriate”, given the time of day, and apologised for any offence caused.

Decision

Given the time of broadcast, we agree with the broadcaster that the material was unsuitable. We welcome the apologies offered by both BMRB and its parent company, and the swift action that was taken to guide the presenter concerning the selection of material for the programme. We consider the matter resolved.

Complaint resolved


Kerrang!
2 March 2006, 15:30

Introduction

A listener objected to a promotion which said that Kerrang! was “about as welcome as a tourettes sufferer at an auction”. He considered this ridiculed a serious neurological condition.

Response

Kerrang! said that it had withdrawn the promotion and apologised to the complainant as soon as it became aware of the complaint. The promotion was intended to be humorous not offensive, but the station recognised that it had misjudged this.

Decision

Although we recognise that the promotion was not intended to be malicious, the humour was misplaced. However, in view of the swift action taken to remove the promotion and apologise to the complainant, we consider the matter resolved.

Complaint resolved


Where is Jack Bauer?
Virgin Radio, Hourly, 9-10 February 2006

Introduction

In an hourly competition, listeners were invited to identify various American cities. On separate occasions, the prize was described, variously as a “great big telly”, “enormous” and “these are not just piddly little ones, these are enormous”. A winner complained that the prize had been described inaccurately on air, since what she received was a 19” LCD television.

Response

Virgin Radio said that it had originally intended to give away wide-screen televisions. However, on the day of the competition, its sponsorship team had discovered that the televisions were to have standard format screens and so the briefing document for the presenters was amended to reflect the changes. The broadcaster acknowledged that three of the descriptions it broadcast were inaccurate and apologised for its mistake, confirming that it was in the process of contacting all winners to inform them that they would now receive 32” wide screen sets.

Decision

Rule 2.11 of the Broadcasting Code requires that “…prizes are described accurately…”. Despite corrections made to the presenters’ briefing document, a small number of inaccurate descriptions were broadcast. However, we welcome the broadcaster’s acknowledgement, apology and appropriate action, which we believe resolves the matter.

Complaint resolved


The Paul O’Grady Show
ITV1, 6 December 2005, 17:00

Introduction

A viewer complained that this magazine programme featured an interview with the actor Charles Dance in which he used the words “shit”, “wanking” and “bitch”. The viewer thought that this language was unacceptable for the time of broadcast.

Response

ITV said that this was an unfortunate and unwelcome element to this show. The production team had taken steps to establish whether Charles Dance would be likely to swear. They had been assured that this was not the case. On the evening, they again made it clear to him that there should be no strong language. ITV sometimes pre-recorded guests who it was felt might be likely to use such language, but it was felt that Charles Dance would be unlikely to do so.

Paul O’Grady made it clear to Charles Dance after he said “shit” that it was not acceptable to swear. The actor appeared to accept that he’d made an error and to understand.  Inexplicably, he went on to swear again.  At that point the production team asked Paul O’Grady to finish the interview as quickly as possible, which he did. During the break Charles Dance’s microphone was turned down so that if he did swear again the audience would not hear him. 

ITV apologised for any offence caused.

Decision

We agree that the swearing was unacceptable for broadcast in this programme, broadcast at this time of day. However ITV took reasonable precautions to ensure that such language was not broadcast during this early evening show. The broadcaster’s compliance record with this series demonstrates that its efforts were generally successful. We consider the matter resolved.

Complaint resolved


Fairness and Privacy Cases

Upheld/Upheld in Part

Complaint by Ms Sheila Bransfield

X-Rated: The TV They Tried to Ban, Channel 4, 6 March 2005

Summary: Ofcom has not upheld a complaint of unfair treatment in the broadcast of the above programme. The programme examined how attitudes to, and tastes for, controversial material on television had changed over the years. Ms Bransfield was one of a number of commentators invited to express their views on the subject.

Ms Bransfield complained that she was “hoodwinked” into participating in the programme, having been led to believe that it would analyse the lowering of standards on TV and the reasons for it, rather than what she saw as a contrived opportunity to present more offensive material. She complained that she was ridiculed and her professional and political reputations were “severely damaged”, by her inclusion in the programme.

Ofcom considered that there may have been a lack of frankness on the programme makers’ part regarding the general tone of the programme. Nevertheless, in Ofcom’s view, the programme makers provided Ms Bransfield with sufficient information (concerning the type of controversial programming that was to be included in the programme) to enable her to make an informed decision about the likely nature and content of the programme before deciding to participate. Further, in Ofcom’s view, the programme did not misrepresent her views.

Introduction

This documentary examined how attitudes to, and tastes for, controversial material on television had changed over the years. Programme makers, TV compliance personnel, TV critics, and performers gave their views as did members of the public introduced as ‘The Complainers’. ‘The Complainers’ were defined by type by the industry commentators and described as “the essential ingredient that guaranteed controversy every time”. The comments made by contributors were inter-cut with clips of the material featuring strong language, sex and bad taste.

Complaint

Ms Bransfield’s Case

In summary, Ms Bransfield complained that she was treated unfairly in the programme as broadcast in that she was “hoodwinked” into participating in the programme. She was led to believe that the programme would analyse the lowering of standards on television and the reasons for it, when in fact she believed the programme was simply a contrived opportunity to present more offensive material. Ms Bransfield also stated that the description of the letter advertising for participants for the programme, provided to Ofcom by Channel 4 in their statement, contained more detail than the letter she responded to in her local newspaper.

Ms Bransfield said that in spite of the fact that her opinions about offensive content had been made clear to the programme makers, her contribution was used in a way which ridiculed her and she was given no indication by the programme makers that her contribution would be used in that way.

Ms Bransfield also claimed that her professional and political reputations had been “severely damaged, if not totally destroyed” by her inclusion in the programme.

Channel 4’s Case

In summary, Channel 4 refuted the claim of unfair treatment in the programme as broadcast. Channel 4 stated that the letter published in the local press that Ms Bransfield would have responded to, made it clear that the programme would involve analysis of individual controversial programmes and extracts. Channel 4 claimed that this information was confirmed in subsequent phone conversations between Ms Bransfield and the producers; that the information given to her was clear; and that the resulting programme matched that description. They said that the complainant was not told that the programme would be about the “lowering of standards”. However, Ms Bransfield clearly believed that the changing content of television represented a “lowering of standards”. She brought her interpretation to the debate and her views were reflected in the programme.

Channel 4 also stated that in the emails and telephone conversations between the producers and Ms Bransfield she had received a “detailed and extensive indication” of the controversial programmes and controversial clips which would feature in the programme in order to tell the story.

Channel 4 stated that the complainant did not appear unhappy or concerned with the interview process during which the clips were shown, that the purpose of the clips was explained to her prior to and during the interview; and that Ms Bransfield signed the release form after the interview.

In relation to Ms Bransfield’s reputation, Channel 4 stated that her opinions were properly included and the clips properly contextualised. The broadcaster also said that it was significant that Ms Bransfield made no allegation that her views had been misrepresented.

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 unwarranted infringements of privacy in programmes included in such services.

In carrying out its duties, Ofcom has regard to the need to secure that these standards are applied in a manner that best guarantees an appropriate level of freedom of expression. Ofcom is also obliged to have regard in all cases, to principles which require regulatory activities to be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.  

In this case Ofcom found the following:

Broadcasters should ensure that all programme makers understand the need to be straightforward in their dealings with potential participants in factual programmes, in particular by making clear, wherever practicable, the nature of the programme and their contribution.

It was clear from the written submissions before Ofcom that Ms Bransfield believed that she was misled about the nature and likely content of the programme. It was equally clear from the written submissions that the programme makers did not believe that they misled Ms Bransfield.

Ofcom’s function was to consider whether or not the programme makers dealt with Ms Bransfield in a manner which was consistent with their obligation to avoid unfairness to her and whether Ms Bransfield was treated unfairly in the programme through her inclusion and/or the presentation of her contribution.

In Ofcom’s view, and based on the material before it (including pre-transmission correspondence), there was no evidence to suggest that the programme makers had misled Ms Bransfield.

Ofcom considered that there may have been a certain lack of frankness on the programme makers’ part regarding the general tone of the programme. Nevertheless, in Ofcom’s view, the programme makers provided Ms Bransfield with sufficient information to enable her to make an informed decision about the likely nature and content of the programme before deciding to participate. For instance, the programme gave Ms Bransfield a comprehensive list of the sorts of programmes that might be featured in the programme, such as Queer as Folk, The Singing Detective and Ramsey’s Kitchen Nightmares. It was also noted that during her interview, the production team played her certain clips of The Today Show Sex Pistols interview with Bill Grundy.

Further, in Ofcom’s view, the programme did not misrepresent her views. Ms Bransfield’s view was that controversial programming of the type shown in the programme and the use of strong language on television was unnecessary. This view was clearly and fairly presented in the programme.

The complaint of unfair treatment was not upheld.


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