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Broadcast Bulletin Issue number 103 - 25|02|08

Standards Cases

In Breach

EastEnders
BBC1, 13 November 2007, 19:30

Introduction

In this episode, a gang attack the ‘Queen Vic’ pub. They are looking for their ex-member, Jase, who has settled in Albert Square with his son. Jase appears in the pub to stop the violence. He is taken down to the cellar where Billy Mitchell’s wife Honey, who is heavily pregnant, steps in to prevent Jase being beaten up. During the fracas, Honey is knocked over and goes into premature labour. Honey is rushed to hospital, where she gives birth, but it is unclear at the end of the episode if the baby has survived.

Ofcom received 78 complaints about the portrayal of violence in this episode. Viewers were particularly concerned about the gang attack in the Queen Vic, the attack on Honey and the birth of her baby, and the general level of violence in the episode as a whole.

Ofcom asked the BBC for comments in relation to Rule 1.3 (children must be protected by appropriate scheduling) and Rule 1.11 (violence must be appropriately limited in programmes broadcast before the watershed).

Response

The BBC said that there had been a gradual build-up to this menacing storyline over several episodes. Jase had been released on licence from a three-year prison sentence for football-related violence. On release, he felt his responsibility to his son was incompatible with his involvement in a violent gang. Jase approached the gang leader to tell him of his decision to leave the gang. The BBC believed these episodes alerted the audience to the sinister nature of the gang and the potential for violence. In the previous episode on 12 November 2007 , the gang were seen gathering outside the Queen Vic.

At the start of the episode complained of, the broadcaster alerted viewers to its content with an announcement stating “And first a powerful EastEnders as a peaceful night is shattered. Things are about to turn very ugly at the Vic.” A reprise of the closing scenes of the previous episode was included to ensure that viewers were fully alerted to the impending violence. Although the BBC acknowledged that the violent scenes were relatively prolonged and depicted harrowing experiences for many familiar characters, the main focus was on smashing glasses and furniture. There was little explicit or graphic violence involving people. The BBC believed the individual incidents were within the limits of this drama. At no time was the violence condoned, with a number of characters expressing condemnation of it.

The BBC said that only one in twenty episodes broadcast feature a single storyline, including the episode complained of, whereas a more usual one cuts between about five. Given this feature and the uncertainty about the fate of Honey’s baby, the BBC believed this may have added to its intensity and the impact on viewers. In contrast, it said it only received 11 complaints about the Sunday omnibus edition. Although there was some editing of the violent scenes from that edition, viewers were immediately reassured that Honey had not lost her baby. The BBC said that the high level of complaint for the Tuesday episode was attributable to the viewers’ suppositions about the possible outcome of the violence rather than to the violence itself.

While the BBC acknowledged that some parents and carers regard EastEnders as appropriate family viewing, those who hold a different view would have been sufficiently aware of the nature of the drama to make an informed judgement based on content advice in listings magazines, which was reinforced by an appropriate on-air announcement and a carefully-calculated opening scene.

For these reasons, the BBC considered that this episode was compliant with the requirements of Rules 1.3 and 1.11 in relation to the scheduling of material inappropriate for children and depiction of violence.

Decision

Ofcom notes that the BBC had edited out around 20 seconds from the gang attack on the Queen Vic in the Sunday omnibus edition when viewers knew in this programme that Honey’s baby had survived. The BBC believe this may have had a bearing on the amount of complaints it received. However, the vast majority of complaints received by Ofcom concerned the gang attack and the general level of violence in the Tuesday episode. Out of 78 complaints received for the Tuesday episode, only 13 viewers specifically mentioned the apparent ‘death’ of Honey’s baby as being a contributory factor to their concern at the amount of violence in this episode.

Rule 1.11 requires that violence must be appropriately limited before the watershed and must be justified by context. In April 2007 (Broadcast Bulletin 83), in light of its concerns about the apparent increase in the use of violence in soaps, Ofcom reminded broadcasters of the need to ensure that violent content in soaps was treated with particular and due care, especially in relation to Rule 1.11.

Although EastEnders is not made specifically for children, it does attract a significant child audience and any portrayal of violence needs to be carefully considered with this in mind. The programme started with the gang attack on the Queen Vic. This involved a sustained, intense and high level of violence, destroying parts of the pub with hammers and bottles and glasses smashing into the furniture, to intimidate the locals, some of whom were injured. This was a persistent attack on both people and property. The gang then threatened the locals resulting in one of them being beaten up. Although the actual assault was only partly seen in long shot, it was clear the person had sustained some injuries. The culmination of this sequence was the confrontation between Jase and the gang in the pub cellar when Honey walked into a highly volatile situation as it was clear one of the criminals was high on drugs. She was then knocked down during a fight and went into labour. These scenes dominated the first 10 minutes of the episode.

Regular viewers would have been aware of the circumstances surrounding this storyline and, given this context including the build-up, an attack on the Queen Vic was not entirely unexpected. Individually many of the scenes were carefully shot to avoid showing graphic violence; however, the initial scenes of the gang running amok in the pub was a sequence of sustained violence. When viewed in conjunction with the assault and scenes in the cellar, this contributed to the overall effect of an extended sequence dominated by violence. Rule 1.11 requires that broadcasters appropriately limit violence, whether verbal or physical, before the watershed. In Ofcom’s view the violence was not appropriately limited for this time of the evening when many children are available to view television. Given the portrayal of the extended sequence in the pub and the sustained tone of intimidation and menace, which dominated a substantial part of this episode, we concluded that this episode was in breach of Rule 1.11.

Rule 1.3 requires that children must be protected by appropriate scheduling from material that is unsuitable for them. Appropriate scheduling should be judged according to a variety of factors including:

Regular viewers of EastEnders are aware that this soap deals, on occasions, with tough, social issues. This is balanced, however, with the expectation that it will be suitable for children to view, who form a significant minority of the audience. Content advice may be useful in providing viewers with information about stronger storylines and we note some was given at the start of the episode. However, in Ofcom’s view, the information supplied did not help to prepare viewers adequately for the violent and intense scenes which followed. Also providing this information does not, in itself, relieve broadcasters of a duty to ensure that material is appropriately scheduled. Therefore we considered, on balance, that the violent content and its duration exceeded many viewers’ expectations for a drama which is transmitted an hour and a half before the watershed at 19:30 on BBC1 when children are likely to be viewing. Ofcom, therefore, concluded that the episode was also in breach of Rule 1.3.

Breach of Rule 1.3 and 1.11

MTV, MTV2, MTV Dance, MTV Base, MTV Hits, VH-1, VH1-Classic
Various dates 2007

Introduction

Section 1.2 of Ofcom’s Rules on the Amount and Distribution of Advertising (“RADA”) requires that there be no more than 12 minutes of advertising in any one clock hour. This obligation is derived directly from the European Television Without Frontiers Directive, which binds the United Kingdom . A review of advertising minutage monitoring reports indicated that, across these MTV channels, during the period 25 June to 2 September 2007, this limit had been exceeded on a number of occasions. On nine of these occasions the apparent excess was 15 seconds or less. However, on six occasions it was four or more minutes and in one case eight minutes.

Ofcom requested comments from MTV under Section 1.2 of RADA .

Response

MTV Networks Europe (“MTV”), which holds the licences for all the MTV channels involved in this investigation, confirmed that the minutage limit had been exceeded within individual hours on a number of occasions. It stated that three of these incidents were the result of mistakes made during the implementation phase of a new computerised advertising airtime booking system and an additional advertising break had been inserted just prior to transmission. The impact of the change on total advertising minutage in the relevant hours had not been checked and an excess had occurred as a result. The broadcaster had subsequently retrained the relevant staff and improved its procedures to ensure that all clock hours were checked regularly prior to transmission. It was also looking to implement an automated check within the relevant computer system to prevent the scheduling of more than 12 minutes in any one clock hour.

MTV explained that the remainder of the incidents had been due to programming either over or under running due to a mismatch between the original, planned, scheduled duration and the duration as actually delivered for transmission. This had had the knock on effect of pushing or pulling advertising breaks into the following or preceding hours, causing the total advertising minutage in these hours to exceed the 12 minute maximum. Transmission staff had failed to make appropriate last minute adjustments to the programming and the overall schedule to prevent such excesses occurring. This problem was being addressed by a combination of measures, including having more precise programme times, the introduction of ‘buffer zones’ around the top of each hour and avoiding scheduling advertising breaks close to this point. This would mean that if programming over/under ran, advertising breaks should still be transmitted in the intended hour.

Decision

Ofcom noted the explanations provided by MTV for the minutage excesses. In particular, that the majority of excesses had been the result of break ‘slippage’. This had had the effect of leaving one hour with more than 12 minutes of advertising but with the preceding/following hour being reduced by the same amount. Overall daily minutage appeared to have been within RADA limits on the days in question.

Whilst welcoming the steps taken by MTV to remedy the issues identified, Ofcom noted that the errors had continued over an extended period and had also in a number of cases involved significant excesses over the 12 minutes per hour permitted. Despite the assurances given that steps were being taken to prevent recurrences, errors had continued to occur.

Ofcom has therefore decided formally to record a breach of RADA 1.2. In the circumstances, and in particular the significant number of breaches involved and the time taken effectively to remedy the causes of these errors, the licensees should note that if further breaches occur, Ofcom may need to consider further regulatory action.

Breach of RADA 1.2

Note to Broadcasters

Note to Broadcasters: the broadcast of sexually explicit ‘free-to-view’ material by encrypted ‘adult’ channels

In Broadcast Bulletin 95 (published 22 October 2007 ), Ofcom highlighted its concerns about compliance by channels that transmit in the ‘adult’ section of the Sky Electronic Programme Guide (‘EPG’). In that Bulletin, which made specific reference in findings to ‘babe-style’ channels, Ofcom also noted its serious concerns about some free-to-air content on encrypted channels. The following findings are the result of investigations into this area. In addition to the cases detailed below, Ofcom has a number of other on-going investigations. These concern both encrypted and unencrypted channels in the ‘adult’ section of the EPG. Some may result in consideration of further regulatory action.

All providers of encrypted channels which also offer free-to-air content should study the findings below carefully. Ofcom strongly reminds all such channels that the broadcast of sexually explicit material within free-to-air content is not normally acceptable and that any breach of a similar nature by an encrypted channel in future is likely to result in consideration of further regulatory action. Providers of ‘babe-style’ channels should also take careful note of these findings for the guidance they provide on compliance with Rules 1.2, 2.1 and 2.3 of the Code.

RHF Productions Ltd
Red Hot Amateur, 26 July 2007, 22:00; Fantasy 1, 26 July 2007, 21:30

Introduction

The Red Hot and Fantasy group of channels are shown in the ‘adult’ section of the Sky Electronic Programme Guide (‘EPG’) and broadcast encrypted sexual material after 22:00 . The channels also broadcast 10 minute free-to-air promotions each hour between 22:00 and 00:00 - between encrypted material - which promote content on the station encouraging viewers who are not subscribers to sign up for the service.

Ofcom received complaints about the output of the following:

Red Hot Amateur, 26 July 2007 , 22:00

A complaint stated that this channel showed full nudity and an erect penis within its free-to-view promotion. The complainant also said one of the female presenters encouraged viewers to watch the “dirtiest hardcore fucking ever shown on TV”.

Ofcom noted that the material included various sequences involving sexual activity, including a promotion called ‘Rim Junkies’, which showed men and women having their buttocks spread apart before their partners’ heads approached them from behind, as if about to lick their anuses. There was also an extremely brief image (of a half second or less) of a woman masturbating a man with an erect penis. The language included terms such as “You’ll get nothing but hard fucking all night” and “We’ve got women of all shapes and sizes getting properly fucked”.

Fantasy 1, 26 July 2007 , 21:30

A complainant said the channel showed full nudity and simulated sex, with viewers being told women would be seen getting “fucked”.

Ofcom noted that the material included various sequences involving sexual activity, including one promotion called ‘Man Bitch’, which appeared to showcase aggressive sexual behaviour. It contained shots of men being stripped and ordered to perform sexual tasks, including being approached from behind by a woman with a strap-on dildo and, separately, a man being ordered: “Come lick me out, you bitch.” The language also included a woman in a promotion saying “Fantasy. I’m dripping with excitement” and “I’m Suzy, and you can see me getting fucked good and hard on Fantasy.”

In both the above cases, Ofcom asked the owner of the channels, Portland Media Group (‘ Portland ’) to comment on how the content complied with the following Code rules:

Response

Portland said, in general, the content complained about was no stronger than material that had been broadcast on the channels for “over a decade”, without attracting regulatory interest. It believed all of the material was appropriately scheduled bearing in mind protection of under eighteens and that the content was within generally accepted standards for free-to-air content broadcast in the ‘adult’ section of the Sky EPG. Portland added that it considered the material was justified by the context in which it was broadcast.

More specifically, Portland had the following comments on each individual complaint.

Red Hot Amateur, 26 July 2007 , 22:00

The broadcaster did not accept the material breached generally accepted standards, or that the material was not justified by the context, as it occurred on a channel in the ‘adult’ section of the EPG well after the watershed and was interspersed with viewer information about how to purchase a pay-per-view screening of the channel. It felt the content was appropriately scheduled, bearing in mind the protection of under- eighteens.

Portland said the language should be seen in context and felt that the material was not sufficiently strong as to breach the Code. It said the word “fucking” did not appear in every voiceover but was used in line with other free-to-air adult programmes.

However, it accepted that showing a brief image of a woman masturbating a man with an erect penis would not generally be acceptable for broadcast. It said this was an isolated incident and the result of human error, as the image was “so fleeting (approximately a third or half a second in duration)” that the editor and compliance officer missed the material. Portland apologised for this error.

The broadcaster defended the material within the ‘Rim Junkies’ segment. It commented that the sequence was edited together to give an impression of a theme of programming common in the adult genre. It said the sequence was fast paced and did “not actually feature any contact between any actor or actresses’ face and buttocks/anuses”. It added the content did not show any “‘spread leg’ shots or visible genitalia or anuses”.

Fantasy 1, 26 July 2007 , 21:30

Portland reiterated that the material was in line with generally accepted standards for material broadcast free-to-view in the ‘adult’ section of the EPG, being shown after the watershed. It said a warning was given immediately prior to the free-to-air segment which stated:

“Be aware. The following scenes aren’t suitable for persons under the age of 18 as they contain explicit sexual material, strong scenes of sexual nudity and sexual swear words.”

With regard to the ‘Man Bitch’ sequence, Portland said it was mindful that overly aggressive sexual behaviour is potentially highly inappropriate. However it considered the sequence did not contain any of the kind of sexual violence that would cause viewers harm or offence. Portland said there was no suggestion any of the performers were engaged – or even appeared to be engaged – in non-consensual activities. It said the promotion was for an encrypted fetish programme, where there is dominant/submissive role-play which would be in line with audience expectations on any adult channel, but that this was fantasy-based material which did not depict or encourage sexual violence towards non-consenting people.

Decision

Under the 2003 Communications Act, Ofcom has a statutory duty to protect under-eighteens from harmful or offensive material. Important obligations are placed on broadcasters in Section One of the Code to fulfil this duty. Broadcasters’ obligations in this regard do not end after the 21:00 watershed. As was made clear by Ofcom in November 2007, when imposing a £25,000 financial penalty against Connection Makers for sexually explicit material broadcast on Babeworld TV (see http://www.ofcom.org.uk/tv/obb/ocsc_adjud/babeworld.pdf ) not all under eighteens stop viewing at 21:00 and therefore broadcasters must be mindful that Rules 1.2 and 1.3 (children must be protected by appropriate scheduling) may continue to apply in programmes broadcast after this time, particularly with respect to material shown relatively close to the watershed.

In addition, under the Code, generally accepted standards must be applied to the content of programmes (Rule 2.1). In applying these standards, broadcasters must ensure that material that may cause offence is justified by context (Rule 2.3). Context can include (but is not limited to) the editorial content of the programme, the channel on which it is shown and the time of broadcast, the expectation of the likely audience and any information broadcast before the programme about the nature of the content. It also includes the effect of the material on people who may come across it unawares.

Ofcom accepts that a free-to-air promotion for encrypted material within the ‘adult’ section of the EPG will contain a certain amount of sexual activity and that viewers of these channels might expect some depiction of such content. While a substantial number of viewers may object to such content being aired at all, to curb all visual or verbal references to sexual activity would not in Ofcom’s opinion be in line with the generally accepted standards for such channels. Additionally, the specific context for such references (including the time of broadcast, location of the channel within the ‘adult’ section and the expectations of the audience) would allow sexual activity to be depicted to some degree. However, it is the extent to, and manner in, which sexual scenes are portrayed that are the most important factors in deciding whether this material complies with Rules 1.2, 2.1 and 2.3 of the Code.

It is a requirement of the Code that content which is considered to be ‘adult-sex’ material must be pin protected and encrypted (Rule 1.24). In both these cases, Ofcom did not consider the content complained of to be ‘adult- sex’ material. This decision was reached taking all the relevant circumstances into account, including the sexual explicitness and nature of the images (including such factors as their length and editing) and language, the purpose of broadcasting this material and the overall context in which it was broadcast.

Red Hot Amateur, 26 July 2007 , 22:00

In this instance, the content included the following on screen graphic:

“WARNING! The following programmes are unsuitable for persons under the age of 18. They contain strong scenes of sex, nudity and sexual swear words.”

The sexual nature of the content was broadly split into two forms:

The offensive language was not particularly prominent and, although it was scripted and pre-recorded material that was presented by topless females, it appeared unlikely that it would have exceeded viewers’ expectations of a channel found within the ‘adult’ section of the EPG.

However, Ofcom was concerned about the content of the ‘Rim Junkies’ promotion. It repeatedly showed the same situation, involving different couples: either a man or a woman had their trousers or skirt removed by their partner, who then approached the participant from behind to spread their bottom and put his/her face between their open buttocks. While there was no explicit nudity or actual contact between the actors’ faces and the anuses of the other participants, the whole segment had a graphic sexual element to it. The variety of long-shot and close-up images left viewers in no doubt as to the nature of the acts depicted and the intention of the ‘participants’. On two occasions, performers in the segment were shown to spit between the open buttocks of their partners. These images, quickly edited together, with reaction shots depicting personal pleasure, sharpened rather than diminished the graphic effect of the sequence.

Ofcom judged that the channel took measures to protect under eighteens through appropriate scheduling of the sequence. However, we concluded that it went beyond generally accepted standards of what is acceptable to broadcast free-to-air, even in a channel within the ‘adult’ section of the EPG and shown over an hour after the watershed.

With regard to the brief image of masturbation (erect penis), we acknowledge both the apology made by Portland and that such a brief sequence could have been missed by a compliance officer. However, the use of material potentially suitable for broadcast only under encryption in promotional trails shown free-to-air requires particular care, precisely to avoid the inclusion of inappropriate material, however brief. We therefore found this sequence, although extremely limited, had not complied with generally accepted standards.

In summary, both the ‘Rim Junkies’ promotion and the promotion containing the image of male masturbation breached Rules 2.1 and 2.3 of the Code.

Fantasy 1, 26 July 2007 , 21:30

Regarding the material showing sexual activity between women, Ofcom noted that, again, the sexual nature of the content complained of was broadly split into two forms:

The ‘background’ material in the information provision sections showed images of each woman licking and touching the body of the other and sucking and licking dildos. These ‘background’ images in the promotions, in that they focused on the women’s bodies and each woman fondling the other, were very sexually suggestive and were in Ofcom’s view inappropriate to be broadcast at 21:30 (so soon after the 21:00 watershed). Additionally, the strong language used in this self-promotion segment contained a very strong sexual element which was inappropriate for broadcast at 21:30 . The licensee also failed to protect adequately under-eighteens from potentially harmful and offensive sexually explicit imagery and offensive language and was in breach of Rule 1.2.

We take into account Portland ’s view that the ‘Man Bitch’ sequence showed dominant and submissive sexual behaviour rather than aggressive sexual behaviour or allusions to sexual violence. There was also no very explicit nudity shown or actual physical contact between the performers. However, the sequence contained the overt use of fetish accessories. Images also included a man and, separately, a woman, approaching their partners from behind to spread the cheeks of their buttocks and put his/her face between them. The entire ‘Man Bitch’ sequence was unacceptable for broadcast on a free-to-view channel, even one located in the ‘adult’ section of the EPG. Considering the time the material was broadcast, the Fantasy channel also failed to protect adequately under-eighteens from potentially harmful or offensive material. This sequence therefore breached Rules 1.2, 2.1 and 2.3.

The Licensee should pay particular attention to the ‘Note to Broadcasters’ at the beginning of this Broadcast Bulletin.

Red Hot Amateur, 26 July 2007, 22:00 – Breach of Rules 2.1 and 2.3

Fantasy, 26 July 2007, 21:30 – Breach of Rules 1.2, 2.1 and 2.3

18 Plus Movies promotion
British Sky Broadcasting, 29 August 2007, 22:00

Introduction

18 Plus Movies is a pay-per-view encrypted film service operated by British Sky Broadcasting (“Sky”) which shows adult material of a sexual nature, and is broadcast within the ‘adult’ sector of the Sky electronic programme guide (“EPG”). Before these films are broadcast late at night, a trail of different film clips is broadcast without encryption. Ofcom received a complaint that the content of the free-to-view trail broadcast on 29 August 2007 showed explicit sexual scenes.

Ofcom reviewed the material and asked Sky to comment in relation to the following Code rules:

Response

Sky said that the free-to-view trails on 18 Plus Movies are designed to promote films for potential customers. A montage of clips is shown which provides a summary of the editorial ‘story’. Sky also said that clips of ‘key’ scenes are carefully selected and edited to demonstrate what customers could expect to see. Also before this promotion, the broadcaster said a verbal and visual warning was given which stated:

“The following promotion contains scenes of a sexual nature [and strong language (said in voiceover only)] and is only suitable for viewing by people of 18 years of age and over”.

Sky said the sexual scenes which were the subject of the complaint were limited to extracts of no more than a few seconds in duration, interspersed between other clips of the relevant films. It said the entire trailer lasted only one minute forty seconds, the remaining twenty seconds of the promotion comprising the warning and programming listing information, thus minimising the effect of the material and the likelihood of a viewer coming across the material unawares.

Sky added that the channel is located within the ‘adult’ sector of the EPG, and is clearly a dedicated adult service. Accordingly, it considered viewers would be in no doubt as to the nature and content of the channel and, given that the promotion was shown well after the watershed (from 22:00 ), the content was appropriately scheduled.

The broadcaster said that material was carefully edited to ensure it met with Rule 2.3 and that it believed the content was in line with viewer expectations on the promotional and other free-to-view material available on other services in the ‘adult’ sector of the EPG. In addition, it felt the name of the channel and the clear warning given immediately before the complained of material would have alerted viewers to the nature of the material to be shown and minimised any potential offence.

However, in light of the complaint, and Ofcom’s general concerns regarding free-to-view material in the ‘adult’ sector of the EPG (communicated to Sky shortly after it had been informed of the complaint), Sky removed the promotion featuring these trailers from the service and it has not since been broadcast. In addition, in response to Ofcom’s general concerns, Sky said it is conducting a review of the content of its free-to-view promotions on the channel.

Decision

In this case Ofcom did not consider the content complained of to be ‘adult- sex’ material as referred to in the Code. This decision was reached taking all the relevant circumstances into account, including the sexual explicitness and nature of the images (including such factors as their length and editing) and language, the purpose of broadcasting this material and the overall context in which it was broadcast.

Under the Code ‘generally accepted standards’ must be applied to the content of programmes (Rule 2.1). In applying these standards, broadcasters must ensure that material which may cause offence is justified by context (Rule 2.3). Context can include (but is not limited to) the editorial content of the programme, the channel on which it is shown and the time of broadcast, the expectations of the likely audience, and any information broadcast before the programme about the nature of the content. It also includes the effect of the material on viewers or listeners who may come across it unawares.

In this case, Ofcom notes the promotion was preceded by information which alerted viewers to its sexual content and that it was broadcast late in the evening on a channel within the ‘adult’ sector of the EPG and it took these factors into account.

However, while the trailer lasted only one minute forty seconds, it was shown on a loop between repeated listings information and the warning. Therefore the chance that viewers could come across the material unawares was increased.

The material itself consisted of a montage of brief sequences where naked and semi-naked actors engaged in representations of various sexual activities, including oral sex and intercourse. This was interspersed with voiceover promoting the channel and its content.

Ofcom accepts that a promotion for encrypted material within the ‘adult’ sector of the EPG will contain a certain amount of sexual activity. Nevertheless, even though the individual shots lasted no more than a few seconds, the trailer included a number of portrayals of sexual intercourse which largely focused on the actors’ bodies and shots of other sexual activity. Although not very explicit, the frequency and nature of the images went beyond what was acceptable free-to-air.

Ofcom welcomes the action taken by Sky to remove the trailer from transmission, and its decision to review the material contained in unencrypted promotions on 18 Plus Movies. However, it was in breach of the Code.

Breach of 2.1 and 2.3

Resolved

The Alan Titchmarsh Show
ITV1, 4 October 2007, 15:00

Introduction

The Alan Titchmarsh Show is a daily magazine entertainment programme that aims to celebrate the ‘best of British’. Featured items have included food and wine, fashion, showbiz, music, gardening, current affairs and consumer issues. The programme is broadcast either live or as live.

Part of the edition in question featured an interview with the television and radio presenter Gloria Hunniford and the former editor of ‘The Sun’, Kelvin MacKenzie. The discussion took place the day after a high profile speech in the House of Commons by Conservative leader David Cameron. This covered various topical issues including a potential EU referendum, inheritance tax and the conduct of the Prime Minister Gordon Brown in relation to a possible general election.

Alan Titchmarsh asked Mr MacKenzie whether he felt that the speech by Mr Cameron would win back ‘Sun’ readers. Mr MacKenzie said that he felt that the deciding issue would be the EU referendum. He put forward the view that people did not want the country being controlled by “a group of bureaucrats in Brussels ”. Gloria Hunniford raised the issue of inheritance tax levels, suggesting that “anything David Cameron does towards giving people a benefit in terms of IHT is a winner ”. There was then a discussion of the political tactics deployed by Gordon Brown and David Cameron in relation to a possible election. Kelvin MacKenzie expressed a forceful view that Gordon Brown had mishandled the situation and had damaged his own credibility as a leader. In his view, David Cameron had the Prime Minister “on the run” and there was “nothing going for Brown right now”. Recent events had, in his view, shown Mr Brown to be “a liar over the referendum and … a ditherer on an election”. Gloria Hunniford praised David Cameron’s speech giving skills, having made his speech without the aid of an autocue.

Ofcom received complaints from two viewers objecting to what they saw as the programme’s failure to provide a balance for the political views of these guests.

Ofcom asked Channel Television, who comply this programme on behalf of ITV1, to comment on this part of the broadcast in relation to Rule 5.5 (due impartiality on matters of political or industrial controversy and matters relating to current public policy).

Response

Channel Television confirmed that the series had not included countervailing views on the desirability of an EU referendum or concerning the question of whether inheritance tax rates were too high. It stated that this was an inadvertent error on its part. In any event, in its view, Mr MacKenzie’s comments had been a representation of the likely views of ‘Sun’ readers rather than his own views. The view that Britain should not be governed by bureaucrats in Brussels was a common view across the political spectrum. Ms Hunniford’s raising of the subject of inheritance tax was not due to any right-wing, let alone party political bias, but because inheritance tax had developed into a matter of pressing concern to people of all political persuasions.

In relation to the Prime Minister’s conduct in relation to a possible election, Mr MacKenzie simply gave a detailed analysis of the political tactics being deployed by both Mr Cameron and Mr Brown, and the likely outcome if the Prime Minister delayed further in calling an election. Ms Hunniford had indeed praised Mr Cameron's party conference speech, but was speaking as a veteran broadcaster, who (by her own admission) regularly relies on an autocue to do her job. She was therefore impressed by Mr Cameron's ability to speak for over an hour with no autocue. The production team had attempted to get a government representative to appear on the programme but no one was available to discuss these matters. Generally, the daily debate across the series has covered a wide variety of topics and featured guests of all mainstream political persuasions.

In addition, Channel Television stated that the episode of the series shown two days earlier included an interview with the actor Richard Wilson, a well-known and longstanding Labour supporter. Richard Wilson, in his interview, praised the Prime Minister, Gordon Brown. This item had prompted two viewers to complain that it was an advertisement for the Labour Party. It stated that there had also been material favourable to Gordon Brown in episodes shown on 25 September and 17 October 2007 .

It argued that it was important to recognise that The Daily Debate section of the programme was simply one strand within the programme, typically running at around 6 to 7 minutes, which may address a number of topical subjects. The expectations of the series should, it felt, take account of this context not least that it is not an overtly political discussion, more “an argument one might have in the pub”.

Channel Television stated that as a result of the complaints it had reviewed its compliance system in relation to this series, in particular in relation to ensuring that due impartiality was maintained. New measures it had agreed included:

The broadcaster also stated that the compliance of the series would be kept under constant and careful review.

Decision

Ofcom’s Code requires that “due impartiality” is maintained on matters of political controversy. The Code explains that the term “due” is important and means adequate or appropriate to the subject and nature of the programme. So “due impartiality” does not mean an equal division of time has to be given to every view or that every argument has to be represented. Further, the approach to due impartiality may vary according to a number of factors such as the nature of the subject, the type of programme and the likely expectations of the audience.

Due impartiality may be achieved in a number of ways but how it is maintained is an editorial matter for the broadcaster. Programmes that follow a daily news agenda often have to deal with a wide range of subject matters over a period of time. It is important in such circumstances, where programmes handle controversial matters and where alternative views are not readily available, that the interviewer appropriately challenge the guests.

In this case, we note that the programme over a short period had guests offering views from differing parts of the political spectrum, helping the broadcaster achieve due impartiality. However, in the current case the guests were permitted to present their views on specific issues mainly unchecked and without challenge. In such circumstances, it is important that the broadcaster ensures guests’ views are adequate challenged and interviewees are not permitted to promote their opinions in a way that potentially compromises the requirement for due impartiality.

Given the range of guests and views the broadcaster has provided over a period and the steps it has taken to ensure appropriate compliance for dealing with such subjects in the future, Ofcom considers the matter resolved.

Resolved

Sarah Kennedy
BBC Radio 2, 24 October 2007, 06:00

Introduction

In her early morning radio show, the presenter Sarah Kennedy talked about an appeal that had recently been launched to help ensure children were safer on their journey to and from school during the dark winter months by wearing high visibility clothing. The line of discussion was elaborated on further by the presenter, who said she had almost run over a black pedestrian as his dark clothes made him ‘invisible’. She continued by adding “ it's lucky he opened his mouth to yawn or do something and I saw him". A listener contacted Ofcom to complain, stating that this was an unnecessary and offensive comment.

Ofcom asked the BBC to comment with reference to Rule 2.3 (generally accepted standards)

Response

The BBC replied by stating that there was no intention to cause racial offence. They said that: “Such off-the-cuff anecdotes and observations are typical of Ms Kennedy’s style. She has a reputation for straight talking and that is part of the reason why she has a large and loyal group of listeners.” They considered that the presenter’s comment about black people being harder to see in the dark was a “…statement of fact and that was the context in which it was made.”

The BBC however accepted that sensitivities surrounding race and racial stereotypes were such that this comment was inappropriate for inclusion. They recognised the potential of this comment to cause offence to listeners and advised that, with hindsight, an apology should have been broadcast. They expressed regret that this had not taken place at the time and did consider broadcasting an apology in a later programme. However this idea had been rejected through concern that this may have had the effect of “perpetuating the original offence”. Instead, Radio 2 issued a public apology by means of a press release, which was subsequently reported in the national press.

The BBC had received 15 complaints from listeners and had written back to them, advising them of the apology.

Decision

Rule 2.3 of the Code requires broadcasters to ensure that material which may cause offence is justified by the context. The broadcaster argued that the comments were not racially motivated.

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 radio programmes. It is concerned that such a comment with its potential to cause offence had been included in a live broadcast without due consideration for the way it may have been interpreted by listeners and without any further explanation or apology within the programme itself.

However we note the broadcaster’s acknowledgement that the comment was inappropriate and the full public apology which was issued. On balance, therefore, we consider that the matter is resolved.

Resolved

Saturday Early Breakfast
Dream 100 FM, 3 November 2007, 06:30

Introduction

During the Saturday Early Breakfast output, the presenter said:

 “…I’ve just had a text here from Matt. Matt say’s can you please play me a classic, classic tune to keep him awake, as he’s working in Harwich at the moment. Yep, Matt, I’ll play your song next at Dream 100.”

Around ten minutes later, the presenter gave the following direct ‘call to action’:

“It’s an early Saturday morning and If you are up at work then I will do my best to get you a mention – six, double four, double seven – start your message with the word, ‘dream’, if you want to text me this morning.”

The number provided was a premium rate SMS text service and, in this case, charged at 25p per message.

A listener looked at the studio webcam, provided on Dream 100’s website and saw that there was nobody in the studio. He said that he then phoned the broadcaster but nobody answered his call. It appeared that listeners had been invited to text in when there was no chance of having requests played or being mentioned on air.

Given that this output was pre-recorded (‘automated’) material, we asked the broadcaster for its comments on the matter.

Response

The broadcaster stated that the number promoted in this case was often used by Dream 100 and would be known by many regular listeners, whether or not it was announced during ‘automated’ programming. However, it said that the presenter’s reference to having just received a text, and the dedication that followed, was recycled material from his live drivetime show on the previous afternoon. Nevertheless, Dream 100 conceded that such output could lead listeners to believe that they could have interacted with the programme, when in fact it was actually pre-recorded.

The broadcaster apologised and said its presenters had been told that they were not to give dedications or promote the station’s text number during ‘automated’ programming. It was disappointed that the presenter in this case - who had recorded his voice-tracks the previous afternoon - had been “in auto-pilot mode and did not go back and correct the error…”. Dream 100 added that, while it sought to make its ‘automated’ output “sound as live as possible”, it would never want to mislead or harm its audience.

The broadcaster had therefore conducted a disciplinary investigation with the presenter in question, who had also been the station’s Programme Manager and had since left Tindle Radio Ltd, the radio group that owns Dream 100. The importance of avoiding calls to action in ‘automated’ programming, including the promotion of premium rate services, had also recently been discussed at a group meeting.

Dream 100 provided a log of text messages it had registered between 1 and 5 November 2007 , none of which were received during the programme concerned. However, the broadcaster added that, if texts had been received, dedications would have been broadcast when the output went live at 08:00 .

Decision

We accept that it is possible that some listeners may know how to contact Dream 100 by using its regular premium rate text service.

However, by promoting the number during the programme and giving the clear impression that someone had just ‘texted’ in, the broadcaster led the audience to believe that it could interact with the programme. This was not possible, since the programme was pre-recorded. The broadcaster assured Ofcom that it was not station policy to broadcast calls to action during automated programmes and this occurrence appeared to be unintentional. While there is the potential to cause listeners harm – in this case, financial loss - we note that no calls were received and any dedications received would have been aired after the output went live at 08:00.

Ofcom acknowledges that radio broadcasters may wish to ensure their ‘automated’ programming is of a similar standard to ‘live’ output. However, this should not be at the expense of ensuring adequate consumer protection. If a broadcaster invites its audience to interact with an ‘automated’ programme, listeners will believe they can do so, especially if the output appears to be ‘live’.

Nevertheless, in this case, although the impression was given that listeners could interact with the presenter, the degree of potential harm was limited. Not only were no texts received but if any messages had been received from listeners they would have ultimately been considered for broadcast, albeit in the following programme. Ofcom acknowledges Dream 100’s assurance that this was an isolated incident and the action it has taken to avoid recurrence. We also welcome the broadcaster’s apology and the measures it appears to have in place with an aim to ensuring compliance. Taking into account all of the above, Ofcom believes the broadcaster has satisfactorily resolved the matter in this instance.

Resolved

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