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Ofcom Broadcast Bulletin, Issue 95 22 October 2007 - from Ofcom

Note to Broadcasters - ‘Babe’ channels

I n 2006, Ofcom wrote to broadcasters operating channels in the ‘adult’ section of Sky’s Electronic Programme Guide (“EPG”) that transmit programmes based on viewer interaction with on-screen presenters (known as “babes”). These channels, which are broadcast free-to-air without encryption, invite viewers to contact the presenters via premium rate telephony services (PRS). The letters were written because Ofcom had a number of concerns about the material shown on the channels, including:

· the appropriateness of sexual content broadcast before the 21:00 watershed, including the promotion of PRS offering ‘adult’ chat;

· the explicitness of sexual content broadcast after the watershed; and

· the promotion of PRS within programmes.

As a result of these letters and Ofcom investigations in 2006, significant improvements were made to the daytime content on the channels. However, concerns have remained about the degree of sexual content broadcast after the 21:00 watershed as well as continued problems relating to the promotion, within programmes, of PRS that appear to contribute neither to the editorial of the programme nor meet the definition of programme-related material.

The following Findings result from recent investigations in this area. In addition to the cases detailed below, Ofcom has a number of other on-going investigations, some of which may result in consideration of further regulatory action. Due to Ofcom’s serious concerns about levels of compliance in the ‘adult’ sector, by both ‘babe-style’ channels and free-to-air content on encrypted channels, Ofcom is considering amendments to the Code so as to require that all material transmitted in the adult section of the EPG is protected by a mandatory PIN. Any such proposals would be subject to a full public consultation.

Due to the serious nature of the Code and Licence breaches recorded in this Bulletin concerning ‘babe-style’ channels, Ofcom considered whether some of these matters should be referred to the Content Sanctions Committee for consideration of a statutory sanction. However, Ofcom has monitored the output of ‘babe’ channels in recent months and noted some significant improvements in compliance after the watershed (e.g. there was less or no very crude or explicit language or visual content). In view of the remedial action taken by relevant broadcasters to improve compliance, we decided against referring these matters to the Committee. Nevertheless, any breach of a similar nature by a broadcaster of a ‘babe’ channel in future is likely to result in further regulatory action.

All providers of ‘babe-style’ channels should therefore study carefully the Findings below.

Use of Premium Rate Services (PRS) in programmes

I n some of the Findings related to ‘babe-style’ channels in this Bulletin, the broadcasters failed on a number of occasions to justify the promotion of PRS within programmes. Where there is sufficient justification to promote a PRS within a programme (i.e. it contributes to editorial or meets the definition of programmerelated material), broadcasters should remember that the rules on undue prominence will apply to the promotion. Programmes should not primarily be vehicles for broadcasters to promote PRS.

I ssues surrounding the use of PRS in programmes are explored in Ofcom’s public consultation on Participation TV. This consultation closed on 17 October 2007.

Details can be found at http://www.ofcom.org.uk/consult/condocs/participationtv/.

Quality of recordings

All broadcasters must note Ofcom’s important guidance below, contained in the Lucky Star finding, about the quality of recordings that must be made and retained for compliance purposes. On request, broadcasters must be able to supply Ofcom with recordings as broadcast. The quality of recordings should be equal to that seen by the viewer, in terms of both sound and vision.

In Breach Get Lucky

TV Grandiose Limited, 6-7 March 2007, 23:00-01:00

I ntroduction Get Lucky TV is a free-to-air unencrypted channel shown in the adult section of the Sky EPG. It broadcasts programmes based on interactive ‘adult’ chat services: viewers are invited to contact on-screen presenters (“babes”) via premium rate telephony services (“PRS”). Female presenters dress provocatively in underwear and encourage viewers to contact them.

A complaint was received about promotion of two PRS during the programme. These were:

· a private text chat service; and

· a service whereby viewers could send in photos to the programme.

The complainant objected that neither of the services promoted appeared to contribute to the programme.

When viewing the recording of the programme, Ofcom noted it also promoted two other PRS. These were:

· a service that directly invited viewers to call and speak privately to off-screen operators; and

· a service offering viewers photos of the presenters.

Ofcom asked the broadcaster for its comments under Section 10 of the Code. This section requires broadcasters to ensure that the programming and advertising elements of a service are kept separate (Rule 10.2) and prohibits the promotion of products and services within programmes (Rule 10.3). It makes clear that premium rate services will normally be regarded as products and services. They must not therefore appear in programmes unless they: (i) meet the definition of programmerelated material (“PRM”) or (ii) contribute to the editorial content of the programme (Rule 10.9).

Response

The broadcaster responded stating that the PRS promoted were an integral part of the programme.

I n relation to the PRS that allowed viewers to contact off-screen operators, the broadcaster considered the promotion of this service within the programme was editorially justified because practical space limitations did not allow all the presenters to be viewed at the same time.

The broadcaster also believed that the services that allowed viewers to send in and receive photos were part of the interactivity of the programme. It stated that viewers of television programmes had traditionally enjoyed sending photos of themselves to presenters. Similarly, it was not uncommon for viewers to request photos of Ofcom Broadcast Bulletin, Issue 95 22 October 2007 7 presenters. Advances in technology now allowed viewers to send and receive pictures via their mobile phones and the programme utilised modern technology to allow real time communication with viewers. The broadcaster said that while most of the pictures submitted would not be suitable for broadcast, the presenters would discuss the images on air.

The broadcaster therefore maintained that the promotion of the services within the programme conformed to the Code rules on the promotion of programme-related material (PRM).

Decision

The Code prohibits the promotion of PRS in programmes unless a service contributes to the editorial content of the programme or meets the definition of PRM.

There was no evidence in the recordings supplied that the services contributed to the editorial content of the programme: no calls or text messages to off-air services were discussed within the programme nor were photos of viewers shown or discussed.

I n relation to the services meeting the definition of PRM, guidance on PRM (published on Ofcom’s website), makes clear that:

“In considering whether or not a product or service is ‘programme-related’ under the Broadcasting Code, it is important to bear in mind the principles set out in Section Ten … Broadcasters must maintain the independence of editorial control over programme content, ensure that programmes are not distorted for commercial purposes and ensure that the advertising and programme elements of a service are kept separate. It is upon these principles that Rule 10.3, which prohibits the promotion of products and services within programmes, is based. Broadcasters should bear in mind that the promotion of ‘programme-related material’ is permitted purely by way of exception to that prohibition and therefore should in no way compromise the principle of separation between advertising and programmes.”

“Broadcasters should note that for material to qualify as programme-related material, it must not only be directly derived from a specific programme but also intended to allow listeners or viewers to benefit fully from, or interact with, that programme … similarity, in terms of genre or theme(s), between a programme and product/service … is not in itself sufficient to establish that the product/service is directly derived from the programme … in order for the material to be considered programme-related material and promoted accordingly, the broadcaster would need to be able to demonstrate to Ofcom’s satisfaction that the material in question was directly derived to a significant extent from each of those programmes.

I n this case, the broadcaster did not demonstrate that the off-screen text service was directly derived from the programme and allowed the viewer to “benefit fully from, or interact with”, the programme.

I n relation to the service offering viewers the opportunity to talk to an off-screen ‘babe’, while this service may have been thematically similar to the service that offered viewers the opportunity to contact on-screen presenters, this in itself is not sufficient to categorise the service as programme-related. The broadcaster did not provide sufficient information to establish to Ofcom’s satisfaction that the off-screen service was in fact “directly derived” from the programme as required by the definition of PRM.

The promotions for the off-screen text and chat services within the programme were therefore unacceptable.

On the matter of the service that offered viewers pictures of the presenters, as stated in Ofcom published finding on Bang Babes (published in Broadcast Bulletin 90), Ofcom recognises that the promotion of such a service may meet the definition of PRM. However, the way in which the service was promoted on Get Lucky was unduly prominent. Under Rule 10.6 of the Code, PRM may be promoted in programmes only where it is justified to do so editorially. Promotions should in no way compromise the principle of separation between advertising and programmes. Guidance on Rule 10.6 states:

“The focus of a programme must remain its editorial content, as opposed to any promotional messages for programme-related material. The programme must not be primarily a vehicle for promotion of the product or service. Rule 10.4 (no undue prominence) also applies.”

The promotion of PRM within programmes should be driven by the needs of the audience e.g. it should be sufficient to tell viewers about the availability of material but should not be primarily a ‘sell’ for the service. In this case, the service was promoted frequently by means of on-screen text throughout the programme. In Ofcom’s opinion, the level of promotion went beyond what was reasonably justified to inform viewers about the availability of the service and appeared to be commercially motivated.

I n relation to the services that allowed viewers to submit pictures to the programme, the broadcaster did not substantiate its assertion that the service contributed to the editorial content of the programme. As far as Ofcom could establish, pictures were neither shown nor discussed during the programme.

I n conclusion, the broadcaster failed to adequately demonstrate that the following services contributed to the editorial of the programme or met the definition of PRM:

· the off-screen chat service;

· the private text service; and

· the service that allowed viewers to submit photos to the channel.

Additionally, the promotion of the services that provided viewers with photos of presenters was unduly prominent.

Breach of Rules 10.4 and 10.9

Lucky Star

Escape Channel Limited, 17 March 2007, 23:37 & 7 May 2007, 00:20

I ntroduction Lucky Star is a free-to-air unencrypted channel shown in the adult section of the Sky EPG. It broadcasts programmes based on interactive ‘adult’ chat services: viewers are invited to contact on-screen presenters (“babes”) via premium rate telephony (PRS). The female presenters dress provocatively in underwear and encourage viewers to contact them.

17 March, 23:37

A viewer objected to the promotion of a PRS that invited viewers to contact a ‘babe’ called ‘Karina’ at home. The complainant questioned how this service contributed to the editorial content of the programme.

7 May, 00:20

A viewer objected to the promotion of a PRS that invited viewers to send in pictures to the programme. The complainant asserted that the pictures were not shown on screen and therefore questioned how the service contributed to the programme.

W hen viewing the recordings supplied by the broadcaster, Ofcom noted the promotion of a PRS that invited viewers to participate in a video call with an offscreen ‘babe’ called ‘Sahara’. Again, these calls were not shown or discussed within the programme.

Ofcom also noted the recordings supplied by the broadcaster were of poor quality.

Ofcom asked the broadcaster for its comments on the broadcasts under Section 10 of the Code. In relation to the quality of the recordings supplied, we asked for the broadcaster’s comments under Condition 11 of its Ofcom broadcasting licence, which relates to the supply of recordings.

Response

17 March

The broadcaster stated that ‘Karina’ is a popular and well-known presenter from the programme. Because of limited screen space, which generally permits only two to three girls to be on screen at any one time, it had been the broadcaster’s practice to satisfy excessive viewer demand by having a top presenter from the programme working from home. The broadcaster considered this practice offered a clear service of benefit to viewers, as the interaction between viewers and ‘Karina’ was an integral part of the programme. The broadcaster therefore believed that the material (i.e. the promotion of the PRS):

(a) was “directly derived from the specific programme; and

(b) intended to allow viewers to benefit fully from, or interact with, that programme”.

7 May

The broadcaster stated that the service offering viewers the opportunity to send in photos enabled considerable interaction between presenters and viewers, as the presenter receive images via a laptop and then discuss them with viewers. However, in the time period specified, the broadcaster advised that no pictures were received and this is why none were discussed in the programme. The broadcaster maintained that if it had received any images the presenters would have mentioned them.

With regard to the video call facility, the broadcaster believed this service was integral to the programme. It said that, given the practicalities of studio space, the person responding to the call may not be the actual presenter on screen but was someone connected to the programme who responds in real time.

On the issue of the quality of recordings provided, the broadcaster believed that the material supplied was of an adequate quality and said it has previously been given information by Ofcom that recordings did not need to be of ‘broadcast quality’. However, it welcomed direction on the nature of the quality of recordings and said it would comply with any guidance Ofcom gave on this point.

Decision

17 March

The broadcaster did not provide sufficient information to demonstrate that the service that connected viewers to an off-screen operator was derived to a significant extent from the programme (on this issue, see also the Get Lucky TV finding in this Bulletin). As such, the promotion of the service within the programme was in breach of the Code.

7 May

Although the broadcaster asserted that pictures sent to the programme would be mentioned, it did not provide any evidence to support this claim. In the absence of material that established that pictures sent via the PRS did feature in the programme, Ofcom judged that the promotion of the PRS within the programme was in breach of the Code.

Similarly, the broadcaster did not show that the video service promoted contributed in any way to the programme. The promotion of this service was also in breach of the Code.

I n relation to the retention and production of recordings, Ofcom’s published guidance notes for Television Licensable Content Service licenses state that broadcasters:

“must retain, or arrange for the retention of, recordings of everything included in the licensed service for a period of 60 days. If Ofcom requests a copy of any recording, the licensee must provide this forthwith. Recordings must be of a standard and in a format which allows Ofcom to view the material as broadcast…”

This means that the quality of the recordings should be equal to that seen by the viewer, in terms of both sound and vision. The recordings provided by Lucky Star, through their provider EBS, were not adequate for Ofcom’s investigation. 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. The broadcaster’s failure to supply a recording of adequate quality was a breach of its licence conditions.

Breaches of Rules 10.2, 10.3 and 10.9 Breach of Licence Condition 11

Star Bazaar

May 2007, 00:00-01:00 I ntroduction

Star Bazaar is a free-to-air unencrypted channel shown in the adult section of the Sky EPG. It broadcasts interactive ‘adult’ programming which includes ‘adult’ chat services: viewers are invited to contact on-screen presenters (“babes”) via premium rate telephony (PRS). The female presenters dress provocatively in underwear and encourage viewers to contact them.

A complainant objected that the channel promoted services during the programme that invited viewers to text the presenters and send in photos. The complainant questioned how these services contributed to the editorial content of the programme.

Ofcom viewed the recording of the output supplied by the broadcaster and was concerned that:

· the programme contained explicit sexual content: the presenters appeared to be masturbating and used extremely sexual language e.g. “spreading them legs wanting a nice juicy cock right inside her pussy giving it to her good hard and proper”, “want to play with their juicy juicy pussy”, “imagine creaming your load all over our gorgeous delicious sexy [inaudible] nipples … let Lily lick up all your cream” ; and

· the quality of the recording was poor: the picture regularly froze and the screen went blank; the audio was also distorted.

In relation to the promotion of PRS, we sought the broadcaster’s comments under Section 10 of the Code.

On the sexual content transmitted, we asked for the broadcaster’s comments under the following Code rules:

· Rule 1.24 - ‘adult-sex’ material may be broadcast only on premium subscription services and pay-per view/night services that have mandatory protection systems in place between 22:00 and 05:30.

· Rule 2.1 - generally accepted standards.

· Rule 2.3 - material that may cause offence must be justified by context.

We also sought the broadcaster’s comments on the quality of the recording supplied under Condition 11 of its Ofcom broadcasting licence.

Response

Promotion of PRS

The broadcaster said that the PRS promoted are a fundamental part of its service and allowed viewers to interact with the programme. The broadcaster said that, unlike other channels in the sector, it meticulously ensured that its programmes have a presenter on the microphone speaking to viewers at all times to ensure that both viewers and callers are entertained. Viewers therefore have a choice to just watch the programme and not participate or they can interact with it. The broadcaster said that, where appropriate, pictures submitted by viewers are shown on screen. The presenter also reads out and comments on all text messages on air. During the time period specified by the complainant the programme did not feature any messages, possibly because no messages were received or they were inappropriate for inclusion in the programme.

I n relation to the promotion of the PRS on screen, the broadcaster referred to a meeting it had with Ofcom representatives where plans to use interactive services on the channel, including those that allowed viewers to send in video or photo messages, were discussed. The broadcaster said that at this meeting the issue of having contact numbers displayed on screen at all times was discussed and it was advised that numbers should be promoted responsibly and not for any other purpose than interaction with the programme. The broadcaster said that it had therefore kept all promotions to a bare minimum. However, the broadcaster advised that due to the nature of its viewers, who tuned in and stayed with the show for only a few minutes at a time, it was impractical to take the contact number off screen for periods of time.

Sexual content

To protect viewers under the age of 18, the broadcaster believed it had acted responsibly by broadcasting pre-transmission announcements that the programme was suitable for adults only and that viewers under the age of 18 should switch off. This message was repeated throughout the broadcast and is a regular feature of all broadcasts. The broadcaster said that although the established watershed is 21:00, it would not broadcast anything remotely adult in nature until 22:30. After 22:30 the transition to material of a more adult nature would be gradual. While accepting that the content that was subject to Ofcom’s investigation was problematic, the broadcaster said it was transmitted after midnight and the channel itself was situated within the adult section of the EPG.

The channel emphasised that it took compliance with the Code extremely seriously and had make significant changes to the format of its programme. Its current output did not show masturbation at all, and the broadcaster had issued a directive to all presenters not to use crass language.

Quality of recordings

The broadcaster advised that its recordings were supplied by a third party contractor. Upon investigation, the broadcaster discovered that its supplier had encountered similar problems when supplying material for other Ofcom licensees. The broadcaster apologised for the quality issues experienced, and said it would in future record all material in house to prevent these problems recurring.

Decision

Promotion of PRS

Although the broadcaster claimed that the PRS services contributed to the programme, it did not provide any substantiation to support its assertion. There are limited circumstances in which PRS can be promoted within programmes. One of these, as the broadcaster recognises, is when a PRS contributes to the editorial content of the programme. There was no evidence during the programme viewed that the services promoted did provide editorial content for the programme. In the absence of such substantiation, Ofcom judged that the promotion of the PRS within the programme was in breach of the Code.

Sexual content

Rule 1.24 of the Code restricts the broadcast of ‘adult-sex’ material to premium subscription services and pay-per view/night services between 22:00 and 05:30 – provided there is a mandatory PIN protection system, or equivalent protections, to restrict access to those authorised to view. A letter sent by Ofcom in September 2006 to broadcasters in the sector made clear that “Under the Code it is prohibited to broadcast content where the visuals or the audio or the overall tone is tantamount to adult sex material and we will intervene if we see such programming. This includes explicit sexual language”. (The bold lettering was in the original letter).

When judging what constitutes ‘adult-sex’ material, Ofcom guidance for broadcasters takes account of definitions used by the British Board of Film Classification (BBFC) for ‘sex works at 18’. These are defined as “works… whose primary purpose is sexual arousal or stimulation”.

We consider that the actions of the presenters (e.g. masturbation) and the explicit sexual language used demonstrated quite clearly that one of the main aims of the programme was to arouse viewers sexually: there was no other significant editorial context for the explicit images and language. Such explicit material is suitable for broadcast only on subscription/pay per view channels that have appropriate protection mechanisms in place. The broadcast of the programme was contrary to viewer expectations for a free-to-air unencrypted channel (albeit one situated in the adult section of the EPG and broadcasting after the 21:00 watershed). The broadcast was inconsistent with the application of generally accepted standards to ensure protection for viewers from harmful and/or offence material.

Quality of recordings

The failure to supply recordings of an adequate quality was a breach of the broadcaster’s licence. We welcome the steps introduced by the broadcaster to ensure adequate recordings are provided in future.

Breach of Rules 1.24, 2.1, 2.3 and 10.9 of the Code Breach of Licence Condition 11

LivexxxBabes

17 April 2007, 21:00-01:00 & 18 April 2007, 21:00–01:00

I ntroduction LivexxxBabes is a free-to-air unencrypted channel shown in the adult section of the Sky EPG. It broadcasts programmes based on interactive ‘adult’ chat services: viewers are invited to contact on-screen presenters (referred to on air as “babes”) via premium rate telephony services (“PRS”). The female presenters dress provocatively in underwear and encourage viewers to contact them.

We received a complaint that content shown on LivexxxBabes at approximately 21:50 on 17 April 2007 included a female presenter rubbing her groin into a man’s face. We noted that the recording provided by the broadcaster in respect of that date featured two female presenters only.

However, we were concerned to note that the output included clearly sexual content immediately after the 21:00 watershed. This included the following language: “She’s looking for some mutual tommy tanking” (rhyming slang meaning masturbation) and “She wants to make you come with her right now”. At 21:03 one of the two female presenters mimed the act of fellatio and a few minutes later one of the presenters touched the other quickly between the legs.

We also had concerns about sexual content broadcast just after 22:00, including strong sexual language, e.g. “Now is the moment to pick up your phone and call us if you want to be between my legs right now…Explode your load all over one of us horny babes right now.”

Ofcom also viewed content broadcast on 18 April 2007, and noted that it contained explicit sexual content. This included strong sexual language immediately after the watershed, e.g. “Wouldn’t you like to stick your hard cock in that? She’s all bent over for you” and “I quite like having my a-hole filled”. The programme also included extended shots of each presenter lying on her back with her legs wide open to the camera masturbating vigorously and a sequence of over 20 minutes long in which one presenter appeared to be masturbating the other vigorously with a dildo.

We requested the broadcaster’s comments regarding the output on both dates with regard to the following Code rules:

· Rule 1.3 - protection of under 18’s by appropriate scheduling

· Rule 1.24 - ‘adult-sex’ material may be broadcast only on premium subscription services and pay-per view/night services that have mandatory protection systems in place between 22:00 and 05:30

· Rule 2.1 - generally accepted standards

· Rule 2.3 - material that may cause offence must be justified by context

Response

The broadcaster said that it did not air live material on the channel prior to the 21:00 watershed, and that the channel was situated in the adult section of the Sky EPG. It also considered that the time of broadcast was in line with parental expectations for post-watershed viewing and that content was graduated and did not suddenly become stronger. It therefore argued that it complied with Rule 1.3.

The broadcaster argued that simulated sexual activity did not comprise ‘adult-sex material’, and that the content was not in breach of Rule 1.24.

I n respect of Rules 2.1 and 2.3, the broadcaster said that: the likely expectation of any potential audience accessing this channel was adult content; the channel was only aired on the adult section of the Sky EPG which was targeted at viewers aged 18 and over; the title LivexxxBabes made the likely content clear; only adults could subscribe to Sky and parents could prohibit access to the entire adult section of the Sky EPG if they so chose; and that standards are becoming much more liberal and accepting of more explicit content in today’s society.

17 April 2007

The broadcaster pointed out that at no time did the incident described by the complainant involving a male presenter occur. It said that the channel’s output started at 21:00 and that caution over nudity was exercised for the first hour after the watershed, with the presenters only removing their tops at 22:00.

18 April 2007

The broadcaster said that, in the first part of the programme, the presenters engaged in activity of a “fairly tame though erotic nature”. It acknowledged that, later in the programme, there were scenes of simulated masturbation; however, it argued that it would have been apparent to a viewer that this activity was not real.

Decision

Ofcom noted that the content on 17 and 18 April was broadcast after the 21:00 watershed on a channel situated in the ‘adult’ section of the EPG but considered that this positioning and scheduling was not sufficient to provide adequate protection to prevent viewers under the age of 18 from accessing the content. Guidance on the Code published by Ofcom explains that “although the watershed is a useful tool for regulating viewing amongst older children, it is one of many factors taken into account when regulating their viewing”. Ofcom was particularly concerned by the sexual language and behaviour used shortly after the 21:00 watershed. In view of the above matters, the programme was in breach of Rule 1.3.

The content on 17 and 18 April exceeded generally accepted standards and there was insufficient context to justify the potential offence. It was therefore in breach of Rules 2.1 and 2.3.

Moreover, Ofcom considered that one of the primary purposes of the sexual content broadcast on 18 April 2007 after 22:00, which included highly explicit sexual language and prolonged scenes of vigorous masturbation with a dildo, was sexual arousal or stimulation. This content therefore in Ofcom’s opinion comprised ‘adultsex’ material and its broadcast on an unencrypted channel was in breach of Rule 1.24.

For clarity, Ofcom considers that depictions of masturbation, simulated or otherwise, are not appropriate for unencrypted broadcast unless there is strong editorial justification.

In this case, there was not sufficient justification.

Breach of Rules 1.3, 1.24, 2.1 and 2.3

Show Off UK

Turn On TV, 2 July 2007

I ntroduction Show Off UK is broadcast pre-watershed on Turn On TV, on varying days during the week. On-screen presenters invite viewers to chat to them via a premium rate telephone number, and to send in pictures and messages, some of which are then displayed on screen.

I n addition, the programme has a website, www.showoffuk.com, which is promoted during the programme. The website contains user-generated content, that is, videos posted by members of the public, which may be viewed by anyone visiting the website.

Ofcom was alerted to video content available on the website, which was entitled ‘Anya Filthy Slut’ (“the video clip”). This featured very explicit pornography. Whilst the video clip was not broadcast on air, Ofcom was concerned that it appeared in a website that was promoted in pre-watershed programming. Ofcom therefore requested the broadcaster’s comments with reference to the following rules of the Code:

· Rule 1.2, which requires broadcasters to “take all reasonable to protect people under eighteen”;

· Rule 1.3, which provides that “children must also be protected by appropriate scheduling from material that is unsuitable for them”;

· Rule 2.1, which requires that “generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material”; and

· Rule 2.3, which requires that “in applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context”.

Response

The broadcaster said that the programme did not promote or encourage adult content. It advised that it reviewed all user generated content to ensure not only that it was not harmful or offensive but also to address other matters such as the participant’s consent and protection of minors.

I n this particular case, the broadcaster said that the video clip was originally uploaded to the website over the weekend of 30 June - 1 July 2007. The programme was not broadcast over that weekend period. The member of staff responsible for checking the website identified the video clip on the morning of 2 July 2007 and removed it prior to the programme going on air at 10:00.

The broadcaster explained that the majority of content sent to the programme was sent via the Multimedia Message Service (“MMS”) number promoted on screen; relatively little material posted on the website was subsequently broadcast on air. It said that the website was promoted visually within the programme primarily to allow contributors of content to view terms and conditions and as a free route to upload video content.

The broadcaster said that all content received via MMS or Short Message Service (“SMS”) was “moderated prior to broadcast and/or broadcast on the website”. All new web content was reviewed daily “first thing each morning” on weekdays and on every day that the programme was aired on TV. All users needed to register before they could post content to the website. Unfortunately, the current version of the website did not allow the broadcaster to preview content before it was posted; this would be addressed when the website was updated. The broadcaster said that it encouraged a user policing policy whereby users could report “inappropriate content” posted on the website. It advised that, since the programme had first started, it had received no complaints from viewers and no requests from website users to remove content.

The broadcaster also said that it had not broadcast Show Off UK since 2 August 2007 as it was in the process of changing the programme format and the website.

Decision

Show Off UK promotes the website www.showoffuk.com on the basis that it is programme-related material (‘PRM’); Ofcom’s concern in this case was whether the website was suitable for promotion in daytime programming, taking into account Rules 1.2, 1.3, 2.1 and 2.3 of the Code.

Whilst the content of PRM is not itself broadcast content and therefore not subject to the requirements of the Code, any on-air reference to PRM is clearly broadcast content. Such reference must therefore comply with the Code. Ofcom has made clear in its guidance on Section Ten of the Code that, in promoting a product or service as PRM, broadcasters must have regard to the rules in Section One (Protecting the Under-Eighteens), and Section Two (Harm and Offence).

Moreover, the 'Legislative Background' section of the Code1 states:

"Although a link included in the service may lead to features outside of that service which are not regulated by Ofcom, the provision of access to those features by, for instance, the inclusion of a link, is within the control of the broadcaster and so within Ofcom’s remit. Ofcom may therefore require such a link or facility to be removed where Ofcom has concerns, in the light of its statutory duties and, in particular, the standards objectives set out in section 319 of the [Communications] Act, about the material to which it leads."

In this particular case, the video clip was extremely explicit (equivalent to BBFC R18- rated content) and could have been viewed by under eighteens who had visited the website after seeing it promoted during daytime television. This was of the utmost concern to Ofcom.

Ofcom considered that, before deciding to promote the website within the Show Off UK programme, the broadcaster should have ensured that it had rigorous compliance processes in place to avoid the posting of pornographic material. As this case clearly illustrated, reviewing website content once a day on weekdays was not adequate to protect under eighteens and indeed other viewers of the programme who might visit the website, having seen it promoted within the programme.

1 May 2005 edition, page 5 Ofcom Broadcast Bulletin, Issue 95 22 October 2007 18 Ofcom therefore decided that, in including references within a programme to a website that featured pornographic material, the broadcaster was in breach of the Code.

Ofcom has previously found the broadcaster in breach of the Code for broadcasting inappropriately sexual content before the watershed2. On that previous occasion, the broadcaster was put on notice that should there be any future breaches of the Code of a similar nature, Ofcom would not hesitate to consider the imposition of statutory sanctions.

Ofcom decided that this breach of the Code in relation to Show Off UK was serious. Ofcom discussed whether formal steps should be commenced to refer this matter to the Content Sanctions Committee for consideration of a statutory sanction. However, Ofcom took into account the broadcaster’s assurances that:

· the video clip was not broadcast;

· in the short period during which the video clip was available on the website, the programme Show Off UK was not on air;

· the broadcaster’s general practice was to review new website material on a daily basis and in this particular case it had removed the material as soon as it had seen it; and

· it would be adding more publishing controls to the website and content would be moderated before it was posted.

As a result we decided not to commence sanctions proceedings on this occasion. However, the broadcaster should be in no doubt whatsoever of the gravity of the current breaches.

Ofcom remains extremely concerned about the suitability of the website for promotion on air.

Ofcom does not regulate the content of websites such as www.showoffuk.com. However, as clearly stated in the Code, it does regulate on-air references to such content and is therefore able to require a broadcaster to remove such a reference where “it has concerns, in the light of its statutory duties and, in particular, the standards objectives set out in section 319 of the [Communications] Act, about the material to which it leads.”

I n this case, Ofcom considers that until such time as the broadcaster can demonstrate to us that it has sufficiently rigorous compliance procedures in place, the programme and channel must not refer to the website.

Breach of Rules 1.2, 1.3, 2.1 and 2.3 2

Glastonbury BBC2, 24 June 2007, 01:00

I ntroduction The Glastonbury festival is an annual rock music event which was covered live and in recorded highlights by the BBC this year. Ofcom received two complaints from viewers regarding the use of the phrase “paki shop” by the performer Iggy Pop during a live interview with BBC presenter Jo Whiley during the early hours of 24 June 2007. Ofcom asked the BBC to comment with regard to Rule 2.3 of the Code which states that: “in applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context.”

Response

The BBC acknowledged that the use of the term “paki shop” was offensive and regretted that this compliance lapse had occurred. However, it said that there were a number of mitigating factors it believed Ofcom should consider.

I t said that Iggy Pop is one of the wildest men in rock music and, as such, he has a built-in content advisory warning. On this occasion he was discussing a notorious appearance on British television some years ago when he wore a pair of transparent trousers. In explaining how he acquired them he said:

“The beauty of being me is that you can wear expensive clobber and you can walk down Camden High Street at a paki shop and oi - those transparent trousers look pretty fucking good – I bet they’d look good on my gigantic, you know, yeah right”.

The BBC continued that the comment itself came just after 01:00, four hours after the watershed when talk on television is generally looser and said that Iggy Pop, an American, is probably unaware that a term commonly used thirty years ago has now passed out of “polite usage”.

However, the BBC said that the programme’s producers discussed Iggy Pop’s appearance when the programme came off-air and concluded that the presenter should have been told to apologise at the time. It therefore issued an apology later that day on the BBC News website in the light of complaints also made directly to the BBC.

Decision

Ofcom research Offensive Language and Sexual Imagery in Broadcasting: A Contextual Investigation published in September 2005 states that the term “paki” is “racial abuse which is generally considered very offensive”.

Ofcom does not assess whether behaviour or language is racist; this is a matter for the relevant authorities, such as the police. However, Ofcom does require that generally accepted standards are applied in television programmes and particularly, as in this case, when comments that are considered offensive are made live on-air and remain unchallenged.

I n considering this matter, Ofcom took into account that the programme was transmitted live from the festival, where occasionally extreme views and behaviour Ofcom Broadcast Bulletin, Issue 95 22 October 2007 20 might be expected to be found. In this particular instance, however, the question of the degree of offence caused was a very important consideration. Ofcom noted that although the term “paki shop” in this instance was not intended to be pejorative, its use was offensive; and the broadcaster failed in its responsibility to ensure that the offence caused was justified by the context, for example by lessening it through issuing an on-air apology as soon as possible after the incident occurred.

Breach of Rule 2.3

Wire in the Blood ITV1, 18 July 2007, 21:00

I ntroduction

This is the fifth series of the crime drama based on the books of Val McDermid. In this episode, the clinical psychologist Dr Tony Hall helps the police trace a serial killer who appears to subject the victims to witchcraft and pagan rituals.

Three viewers complained about the violent and menacing scenes at the start of this episode before the title credits. They were concerned that these scenes were too close to the 21:00 watershed.

Ofcom asked ITV for comments in relation to Rules 1.3 (appropriate scheduling) and 1.6 (the transition to more adult material must not be unduly abrupt at the watershed).

Response

ITV believed that by this fifth series Wire in Blood was a well-established postwatershed psychological drama. Regular viewers would have a clear expectation of the content.

The broadcaster explained that the opening scenes had been carefully considered to avoid an “unduly abrupt” transition immediately after the watershed. The scene established the hate-filled and sadistic nature of the killer with short shots and the brief appearance of a machete. However, it was dark and menacing rather than a graphic portrayal of violence.

ITV felt reasonable steps had been taken to prepare less robust or less familiar viewers with the content of the programme. A viewer information announcement was provided at the beginning of the episode stating that it contained “scenes of a menacing and violent nature from the outset”. In the broadcaster’s view, the prepublicity and pre-transmission announcement allowed viewers to make an informed decision of whether to view this programme.

The broadcaster accepted that this series might not be to every viewer’s taste, but it did have a wide appeal with a strong audience of around 5 million. ITV acknowledged that this opening scene was close to the boundary of acceptability. However, it believed that most viewers would have found it acceptable at this time of the evening, given the nature of the series.

Decision

Rule 1.3 requires that children must be protected by appropriate scheduling from material that is unsuitable for them.

Rule 1.6 states that “The transition to more adult material must not be unduly abrupt at the watershed…For television, the strongest material should appear later in the schedule.”

Ofcom acknowledges the steps taken to alert viewers to the content of this episode and that regular viewers would be aware that the series does dwell on the darker side of crime.

However, we were concerned that a threatening and violent scene was shown immediately after the watershed before the title credits. It opened with a brief witchcraft or voodoo ceremony and, then, almost immediately cut to a very distressed man tied to a chair in an abandoned warehouse. Another man entered, proceeded to dress in chain mail and, then, took a machete out of a case. The captive was in such fear for his life that he was shown to urinate in his trousers. After taunting him, the attacker wielded the machete, swinging it at the man’s head. However, the decapitation was not seen - only the man’s screams were heard as the machete swung towards him. The title credits immediately followed.

The Bill preceded this programme, which appeals to a wide-ranging audience including children. It is likely that some of these children were still watching at around 21:00. For this reason, Rule 1.6 requires that the transition at the watershed does not immediately contain strong, adult material. Although the information announcement would have given viewers some indication of the content, we felt that the length of the opening sequence and its undisputed menacing and violent tone went beyond what was acceptable at 21:00 on a channel that provides a general range of programming.

Given the preceding programme and the likelihood that children could still be watching (with some already on school holidays), this episode was in breach of the Code.

Breach of Rules 1.3 and 1.6

GEO News

GEO News, 27 July 2007, 12:00

I ntroduction

GEO News broadcasts news from the Asian sub-continent which is of particular relevance to an Asian audience. A viewer complained about some of the footage shown on this edition. The material included images of the aftermath of a bomb blast in Pakistan.

Ofcom did not ask for comment on the majority of the images. It believed these were justified by reference to the context in which they were shown. However the content broadcast included the repeated use of footage of a crowd surrounding a vehicle in which a man had been killed. There were extreme close up shots of the dead man’s face revealing in detail the facial injuries sustained. Ofcom asked for a statement from the broadcaster with regard to Rule 1.11 of the Code (violence before the watershed) and Rule 2.3 (offensive material to be justified by the context).

Response

The channel offered no justification for showing the image. It apologised for broadcasting the material and said it regretted that the scenes were aired. It said that the footage was sent live from the scene and the broadcast was as a result of an error of judgment from the local crew in Pakistan. It explained that the error occurred because of a lack of footage being available from the scene.

As a result of the error new procedures have been put in place by the broadcaster, including a review of the channel’s Standard Operating Procedure and additional training being given in Ofcom regulations for staff based in foreign regions.

Decision

Rule 2.3 states that “[I]n applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context”. The footage complained of was particularly disturbing and graphic. It was so strong in nature that, even in the context of a news channel, with a largely adult audience with certain audience expectations, Ofcom concluded that its use could not be justified. The potential to cause offence was compounded by the fact that it was broadcast on a number of occasions. Further, the fact that the broadcaster repeated the image no fewer than sixteen times before the watershed within a short news report meant that the violent nature of the image was not appropriately limited as required by Rule 1.11.

Ofcom was particularly concerned at the broadcaster’s admission that the repeated use of this image was due to a lack of available footage. On 8 May 2007 in Bulletin 84, in its finding on the broadcast of footage of the execution of Saddam Hussein, Ofcom highlighted that broadcasters need to consider very carefully the use of strong material as general ‘background’ imagery in news reports. Such consideration was not evident here.

Breach of Rules 1.11 and 2.3

Who Killed Atlanta’s Children?

Movies4Men2, 22 August 2007, 15:30

I ntroduction

I n this film, two reporters re-investigate the Atlanta child murders that occurred in the 1980s.

A viewer complained about the use of the word “fuck” on a number of occasions in this film shown during the afternoon.

Ofcom asked the broadcaster for a response with reference to Rule 1.14 (the most offensive language must not be broadcast before the watershed) of the Code.

Response

The broadcaster, Dolphin Television, explained that this version of the film was shown in error. The film was given a ‘15’ certificate by the BBFC (British Board of Film Certification), but it was edited to make it suitable for pre-watershed transmission. Unfortunately the 15-rated version was mislabelled and shown by mistake at 15:30.

Dolphin Television apologised for this mistake. Since this incident, it has reviewed all its procedures and would be putting new measures in place to prevent any recurrence.

Decision

Rule 1.14 states that “the most offensive language must not be broadcast before the watershed…” By broadcasting the word “fuck” during the afternoon, Dolphin Television was in breach of the Code.

We welcome the apology given by Dolphin Television and the review of its procedures. However, further to Ofcom’s Note to Broadcasters about offensive language before the watershed (see Broadcast Bulletin 89), Ofcom reminds broadcasters of the importance of ensuring compliance in this area.

Breach of Rule 1.14

Buckcherry – Crazy Bitch Rockworld TV, 4 August 2007, 14:30

I ntroduction

Rockworld TV is a 24 hour rock music service.

A viewer, who was watching with his 12 year old son, complained about the frequent use of the words “fuck” and “fucking” during a performance of ‘Crazy Bitch’, by rock band Buckcherry.

Ofcom asked the broadcaster to comment on the broadcast in relation to Rule 1.14 of the Code, which states that: “the most offensive language must not be broadcast before the watershed or when children are particularly likely to be listening”.

Response

The broadcaster apologised for the scheduling of this item and the failure of its compliance staff in not preventing the programme from appearing in the daytime schedule. It also informed us of changes to its procedures that had immediately been instigated to prevent such a recurrence.

Decision

Ofcom was concerned to note that there were repeated instances of offensive language during one of the tracks featuring this particular rock band, which were unsuitable for transmission at 14:30.

We welcome the apology given by Rockworld TV and the measures they have initiated to ensure effective compliance in future. However, further to Ofcom’s recent reminder to broadcasters about offensive language before the watershed (see Broadcast Bulletin 89), Ofcom reminds broadcasters of the importance of ensuring compliance in this area.

Breach of Rule 1.14

Resolved I nternational Football Sky Sports HD1, 6 June 2007, 23:00

I ntroduction

Ofcom received four complaints about offensive language used by Sky presenters following live coverage of the Estonia v England and Faroe Islands v Scotland European Championship qualifying matches. Two of the complainants also considered the comments to be dismissive towards Scottish football and offensive as a result.

Ofcom asked Sky to respond to the complaints with regard to Rule 2.3 (generally accepted standards).

Response

Sky confirmed that the incidents took place after 23:00, following the scheduled end of the international football programme. On Sky Sports HD1 at this time, the next scheduled programme was Transworld Sport. However at this point a mistake was made by Sky and viewers were switched to the Sky Sports studio which was being used to prepare additional content for later programmes.

The two presenters (Richard Keys and Jamie Redknapp) were rehearsing links and other items live, without knowing that they were on air. This content included potentially offensive language in conversations between the presenters and production staff which Sky did not intend to be broadcast. Sky pointed out that this content was transmitted late in the evening after the watershed and therefore would not have been offensive to the vast majority of viewers. It was not shown at any other time.

Sky denied that comments made by Richard Keys’ were offensive to Scottish football. Instead these referred to the home team’s decision to play the Faroe Islands v Scotland match on a notoriously poor pitch and reflected questions discussed during the broadcast programme surrounding the value of European Championship qualifying matches involving part-time teams.

In response to the error and subsequent complaints, Sky took internal disciplinary action and reminded production staff of the need to be mindful of what is said or done in the studio, even when off air. In addition, the broadcaster regretted the incident and apologised for any inadvertent offence caused.

Decision

Ofcom welcomes the apology offered and notes Sky’s internal measures taken in response to this incident. In view of these actions, Ofcom considers this matter resolved.

 
 
 
 
   
 
 
 
 
 
   
 
 
 
 
 
   
 
 
 
 
 
   

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