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Home > TV > Broadcast Bulletins > Ofcom Broadcast Bulletins > Issue number 113 - 07|07|08


Broadcast Bulletin Issue number 113 - 07|07|08

Standards Cases

Notice of Sanction

30 GCap Media plc ‘One Network’ radio stations
Secret Sound, 15 January 2007 to 8 February 2007, various times

On 26 June 2008 , Ofcom published its decision to impose statutory sanctions on 30 GCap Media plc ‘One Network’ radio stations for breaches of Rule 2.11 (competitions should be conducted fairly) and Rule 10.10 (use of premium rate numbers must comply with the Code of Practice issued by PhonepayPlus) of the Code.

Ofcom has found that these rules were breached in the conduct of a networked listener competition, Secret Sound, as follows:

On a number of occasions, programme makers deliberately put to air text entrants with incorrect answers in order to prevent the prize from being won too soon. As a result, those listeners who had paid to enter the competition on these occasions had no chance of winning.

The seriousness of the compliance failures was compounded by some of the actions taken by GCap after the incidents had come to light.

For the reasons set out in the adjudication, Ofcom imposed a financial penalty of £37,000 on each of the 30 licensees, which amounted to a total financial penalty of £1,110,000 aggregated across the 30 licensees.

In addition, each of the 30 licensees was directed to broadcast a statement of Ofcom’s findings in a form to be determined by Ofcom on two specified occasions.

The full adjudication is available at: http://www.ofcom.org.uk/tv/obb/ocsc_adjud/30GCapRadioStations.pdf

In Breach

GMTV Weather
GMTV, various dates and times in March 2008

Introduction

GMTV Weather is sponsored by Nestle cereals. A credit for the sponsor contained the claim “helping you get the three servings of wholegrain you need everyday”. A viewer challenged the accuracy of the claim.

Ofcom sought the broadcaster’s comments under Rule 9.13 of the Code. This rule requires sponsor credits to be distinct from advertising. Ofcom’s published guidance on the rule states “Specific or detailed descriptions of a sponsor’s business or products are likely to be viewed as promotional and are therefore unacceptable. Brief statements (straplines etc) may be acceptable in credits but claims that are capable of objective substantiation, particularly those that are comparative, may breach this rule.”

Response

In response to the complaint, GMTV provided documentation, including articles from nutritionists, to substantiate the claim.

In relation to the requirements of Rule 9.13 of the Code, GMTV responded that the statement in question was a brief description of what the sponsor’s product contained. The description was not specific or detailed and therefore not promotional. It did not compare the sponsor’s product with competitive brands and contained no invitation to purchase the product or contact the sponsor. The claim formed only a small part of an overall sponsorship campaign and featured in two out of nine credits.

GMTV said that, as a result of the complaint, it ceased transmission of the credits in question and would not air them again until the complaint was resolved.

Decision

The purpose of a programme sponsor’s credit is to inform the audience that a programme is sponsored and identify the sponsor. Credits do not count towards the time broadcasters are allowed for advertising. To prevent credits effectively becoming advertisements, and therefore increasing the amount of advertising transmitted, broadcasters are required to ensure that sponsorship credits do not include advertising messages. This reflects the requirements of European legislation (i.e. the European Television without Frontiers Directive).

Ofcom judged the statement “helping you get the three servings of wholegrain you need everyday” was a specific promotional claim about the nutritional benefits of the sponsor’s products and one that would require substantiation. Its clear function within the credits was to advertise the sponsor’s products and its inclusion was therefore unacceptable.

On the basis that the statement should not have appeared in the credit, Ofcom did not assess the substantiation supplied to support the claim.

Ofcom welcomed GMTV’s actions in removing the statement from the credits during Ofcom’s investigation and, since it is in breach of the Code, advised that it should not be repeated.

Breach of Rule 9.13

STV and Westcountry Weather
STV and ITV Westcountry, various dates and times in March 2008

Introduction

STV Weather and ITV Westcountry Weather are sponsored by Flybe. A number of the sponsor’s credits, which were broadcast around the sponsored item, included references to the following services offered by the sponsor:

Ofcom sought the broadcaster’s comments under Rule 9.13 of the Code. This rule requires sponsor credits to be distinct from advertising. Ofcom’s published guidance on the rule states “Specific or detailed descriptions of a sponsor’s business or products are likely to be viewed as promotional and are therefore unacceptable…”

Response

ITV Compliance advised that the sponsor credits were originally viewed by ITV Sponsorship only in relation to ITV Westcountry Weather. They were then offered to STV, for use on STV Weather, with the assurance that they had been accepted by ITV Sponsorship/ ITV Westcountry. ITV Compliance said that it was routine for ITV Sponsorship to refer creative proposals for sponsorship messages to the compliance team for advice. On this occasion, because of human error, no referral was made. ITV apologised for this mistake.

On reviewing the credits, ITV Compliance accepted that messages within a number of the sponsor credits were inappropriate and may have been construed as advertising messages. As a result of Ofcom’s investigation, it had asked Flybe’s creative agency to re-edit the credits as a matter of urgency.

Decision

The purpose of a programme sponsor’s credit is to inform the audience that a programme is sponsored and identify the sponsor. Credits do not count towards the time broadcasters are allowed for advertising. To prevent credits effectively becoming advertisements, and therefore increasing the amount of advertising transmitted, broadcasters are required to ensure that sponsorship credits do not include advertising messages. This reflects the requirements of European legislation (i.e. the European Television without Frontiers Directive).

Ofcom judged the references to the specific services offered by the sponsor (e.g. on-line check-in, pre-assigned seating) were clear advertising messages, included to promote the benefits of flying with Flybe. The inclusion of these advertising messages within the credits was unacceptable.

Ofcom welcomed ITV’s acknowledgement that the credits were inappropriate and the steps taken to rectify the problem. However, Ofcom was concerned by the apparent compliance failure identified by this case and is therefore recording a breach of Rule 9.13.

Breach of Rule 9.13

Rock Rivals
ITV2, 7 March 2008, 20:00

Introduction

Rock Rivals is a drama based around the concept of a popular television talent competition. It was broadcast on ITV1 at 21:00 earlier this year and repeated on ITV2 at 20:00 each week. One viewer complained that the ITV2 repeat of the first episode of the series contained strong language, including “tosser” and “shit”, and one use of “fuck” (which was also subtitled). The viewer was offended that inappropriate language was broadcast before the 21:00 watershed. On reviewing the material, the word “fuck” was included in the subtitles but from the audio track it could not clearly be determined what was actually said. Ofcom wrote to Channel Television, who complies this programme for the ITV Network, asking it to respond under Rule 1.14 (the most offensive language must not be broadcast before the watershed).

Response

Channel Television said that Rock Rivals did include terms such as “tossers”, “shits” and “sodding”. The broadcaster said such language was editorially justified in a drama not intended for a child audience. However, Channel acknowledged that the subtitles did include the term “fuck”. This, it transpired, was an error made by the Subtitling Unit. The phrase was not included in the script or said by the actor on screen. The actor made a series of facial expressions and grunts, the subtitler believed one of them to be “fuck” and therefore mistakenly included the expletive in the programme’s sub-titles. The broadcaster said it greatly regretted this unfortunate slip-up.

As soon as the broadcaster became aware of the mistake from an e-mail complaint to ITV, the word was removed before the second repeat of Rock Rivals on ITV2 on 11 March. Also the broadcaster has now tightened its procedures to ensure there are no similar mistakes in future.

Decision

Ofcom does not normally regard the infrequent use of what are considered to be milder terms of bad language such as “tossers”, “shits” and “sodding” to be at odds with the Code when broadcast in a drama not intended for children. However, “fuck” is considered one of the most offensive forms of language. Rule 1.14 states that the most offensive language should not be broadcast before the watershed.

Ofcom acknowledges Channel’s admission that “fuck” should not have appeared in the subtitle and welcomes the compliance improvements made as a result of this incident.

Breach of Rule 1.14

The Jeremy Kyle Show
ITV1, 20 March 2008, 09:25

Introduction

Jeremy Kyle presents a popular confessional talk show where members of the public discuss their personal problems in a frank and often confrontational manner. Two viewers complained that, during a heated discussion between Jeremy Kyle and a Scotsman on the programme, the man – who spoke in a very strong accent - said “ I don’t see you going out there saying [blanked] to people in the street you’d get your cunt kicked in."

Ofcom wrote to ITV, asking it to comment under Rule 1.14 (the most offensive language must not be broadcast before the watershed).

Response

ITV apologised for any offence caused by the broadcast of the expletive, which it said was unintentional. It commented that none of the production team, compliance officers or subtitlers detected the word, although ITV said other offensive words were duly noted and edited out. The broadcaster said it received one complaint from a Scottish viewer about the phrase and within a few hours it had edited the programme to remove it from any future repeat. On this occasion, because of the strength of the man’s accent, the comment was indistinct to non-Scottish viewers and was missed.

Decision

The inclusion of the word “cunt” in a daytime talk show was clearly offensive and unacceptable as the term is considered to be one of the most offensive and abusive phrases. We acknowledge the action ITV took on receipt of a complaint from a Scottish viewer and its recognition that this language should not have been broadcast.

We accept that the inclusion of the term was unintentional, and that the comment may not have been readily understood by some non-Scottish viewers, but ITV should ensure that inappropriate and offensive language is not broadcast before the watershed.

Breach of 1.14

Sunday Night with Jason Donovan
Invicta FM and 36 other radio stations owned by GCap, 27 April 2008, 19:00

Introduction

Jason Donovan presented a Sunday evening entertainment programme which was broadcast on 37 radio stations owned by GCap. During this particular edition of the programme, Jason Donovan made the following comment in respect of the then forthcoming London Mayoral election:

“ It’s time for a change. It’s definitely time for a change. Boris Johnson. I have to say it. That’s my political message…”

Ofcom received a complaint from a listener who was listening to Invicta FM and objected to Jason Donovan’s comment.

Ofcom requested comments from GCap on how this programme complied with Rule 6.1 of the Code. This states that the rules in Section Five of the Code (concerning due impartiality) apply to the coverage of elections, and in particular the rules relating to matters of major political or industrial controversy and major matters relating to current public policy. Rules concerning material broadcast at the time of elections are applicable during the official “election period” to the election ballot. In the case, the London Mayoral elections were held on 1 May 2008 and the official election period to this ballot started on 18 March 2008.

Response

GCap accepted that Jason Donovan’s comments breached the Rules of the Code about due impartiality. The broadcaster stated that it was aware of the need to adhere to the Rules governing due impartiality, especially during election time and that it has procedures in place to ensure compliance to the Code. The broadcaster stated that following the comments, the programme’s producer had discussed the matter with Jason Donovan, highlighting the seriousness of his actions and that immediate remedial action would need to be taken to deal with the matter. GCap said that an on-air apology was read out on the radio stations that carried the programme which made it clear that Jason Donovan’s comments were not condoned and that it did not endorse any particular candidate in the mayoral election.

GCap stated that, although Jason Donovan was relatively new to the radio industry and that this programme was his fourth live radio broadcast with the show, it would be monitoring his programme with greater scrutiny in future to ensure compliance with the Code. The broadcaster also said that it had taken measures to ensure that a breach of this nature was not repeated.

Decision

The effect of Rule 6.1 is to ensure that broadcasters apply the “due impartiality” rules (as set out in Section 5 of the Code) at the time of elections. In particular Rule 5.11 states that “due impartiality must be preserved on matters of major political and industrial controversy and major matters relating to current public policy by the person providing a service…in each programme or in clearly linked and timely programmes”. Ofcom considers that elections in the UK are major matters of political controversy as defined by the Code.

Ofcom recognises the importance of the right to freedom of expression. This encompasses the broadcasters’ right to transmit and the audience’s right to receive creative material, information and ideas without interference but subject to restrictions proscribed by law and necessary in a democratic society. This right is in enshrined in the European Convention on Human Rights. However, UK legislation requires broadcasters to preserve due impartiality on matters (and major matters) of political controversy. This requirement is considered to be particularly important at the time of elections. A presenter endorsing a political candidate at a time of an election is a clear and unambiguous breach of the due impartiality requirements in the Code.

Ofcom considers this to be a very serious breach of the Code. A presenter, albeit relatively new to his role as a radio presenter, was allowed to use his programme to promote an unchallenged political message in favour of a candidate for the 2008 London Mayoral elections. This seriousness was also compounded by the fact that the breach of the Code took place in the run-up, or “the election period”, to the elections held on 1 May 2008. It is the responsibility of the licensee to ensure that all those involved in programming are familiar with and adhere to the requirements of the Code.

In this case, however, Ofcom noted that Jason Donovan’s comment about Boris Johnson was isolated and was a message of general political support rather than actively encouraging listeners to vote for Boris Johnson. Ofcom also welcomed GCap’s recognition that the content of this programme had clearly breached the Code and the subsequent measures taken by it, not only to strengthen and improve compliance in the future, but also the broadcast of the on-air apology. Taking into account these circumstances in particular, Ofcom decided on balance on this occasion not to take further regulatory action. Should any similar breaches of the Code occur in future, however, Ofcom will consider doing so.

Breach of Rule 6.1

Peter Popoff
Passion TV, 10 October 2007 19:00
Dr Paul Lewis
Passion TV, 10 October 2007 09:30

Introduction

Passion TV is a religious channel broadcasting to a mainly Christian audience. Peter Popoff is a televangelist who supplies and presents Peter Popoff Ministries programmes on the service. This programme suggested, that through his ministry people are “healed” of various illnesses. Part of that healing, Peter Popoff suggested, may be affected by the use of ‘Miracle Spring Water’. This was offered to viewers ‘free’ throughout the broadcast.

Another televangelist, Dr Paul Lewis, suggested in another programme presented on Passion TV, that his “Miracle Olive Oil Soap” had similar healing properties.

We received a complaint that the claims in the programmes were, in summary, unjustified and exploitative.

Last year, on 9 May 2007 , the Advertising Standards Authority (“the ASA”) published a finding in respect of advertisements for Peter Popoff’s ‘Miracle Spring Water’ and Dr Paul Lewis’ ‘Miracle Olive Oil Soap’ broadcast on Deal TV. The ASA found the advertisements in breach of the BCAP Television Advertising Standards Code on eleven separate counts. Among other things, the ASA found that the broadcaster had not sought independent medical advice on the safety and efficacy of the products and the advertisements exploited vulnerable viewers.

We asked Passion TV to respond in the light of the following Code Rules: 4.6 (religious programmes must not exploit the susceptibilities of the audience); and 10.3 (products and services must not be promoted within programmes).

Response

Passion TV acknowledged that there were a number of areas where it had not fully understood how to comply with the Code. As a result, following Ofcom’s intervention, it had taken a number of measures to ensure it complied with the Code in the future, for example:

Decision

The presenters talked directly to the viewers and made claims about these products. For example, at the start of the programme, Peter Popoff, told the audience that:

“I have new instructions for new prosperity and new miracles for you. This is a brand new packet of Miracle Spring Water [holding up sachet; screen shot of sachet and phone number]. It’s large, and God has given me the steps of faith that you need to take to see the troubling of the waters of your situation. Get ready to see God move…”

Peter Popoff then linked to a “deliverance service” where people claimed they had experienced healing or been the recipients of a financial reward. This sequence was overlaid with text which said:

“Call now for your FREE, LARGER Miracle Spring Water!” accompanied by a UK telephone number and a scrolled message which read: “Go to the telephone, we are standing-by to take your prayer requests.”

Meanwhile, Paul Lewis promoted his “Miracle Olive Oil Soap” in his programme, speaking directly to viewers, saying:

“…I want you to call that number on the screen [caption with phone numbers and the words: “call now for your free miracle olive oil soap”] let me rush to you my free Miracle Olive Oil Soap…your worry days are over, your struggle is over, from borrowing from Peter to pay Paul is over; today’s your day for a miracle…”

The products promoted by the programmes on Passion TV were the same ones that featured in the advertisements which breached the BCAP Television Advertising Standards Code. The programme clearly said that healing could and, indeed, would take place should viewers obtain the water or soap on offer. Also the programme claimed that users’ financial circumstances would improve. There was no scientific or medical evidence to support these claims made in the programme. Further, one of the presenters, Paul Lewis was referred to as “Doctor”, incorrectly implying that he was qualified to given medical advice. Therefore overall, we consider this was an attempt to exploit the susceptibilities of the audience and in breach of Rule 4.6.

The programmes also heavily promoted the spring water and soap in the programmes by showing these products and providing a series of testimonies of their effectiveness from both the presenters and interviewees. Viewers who responded to these promotions were subjected to a concerted mail-shot campaign pressing, amongst other things, for some form of financial contribution or payment. The promotion of these products within programme time was therefore in breach of Rule 10.3.

Ofcom regards the breaches of the Code, in this case, as very serious. These products were promoted in such a way as to target potential susceptible and vulnerable viewers. The advertising regulator, the ASA, had made it extremely clear in its published finding how seriously it considered the promotion of these products as miracle cures and the associated claims made in the advertisement. The compliance arrangements at the licensee were also clearly inadequate to permit such products, in such a manner, to be promoted in their programmes.

Ofcom considered whether to refer these breaches for the consideration of a statutory sanction. However, it decided not to do so, taking account of all the circumstances (but principally the Licensee’s previous compliance history, improvements to its compliance procedures, and bearing in mind the fact that each televangelist was featured in only one programme, albeit repeated on a number of occasions). Nevertheless, there should be no doubt that Ofcom will consider further regulatory action (including the possibility of a fine) if any further Code breaches of this nature occur again.

Breaches of Rule 4.6 and 10.3

see http://www.asa.org.uk/asa/adjudications/Public/TF_ADJ_42553.htm.

Note to Broadcasters

Claims of benefits from, and promotion of products or services, in religious programmes

Broadcasters of religious programmes must establish for themselves whether any claims as to benefits provided by products supplied by ministries providing programmes to their services can be justified. Broadcasters should not rely, for example, on the evidence of testimonies within the programmes alone, but should seek to obtain sufficient and independent verification.

Broadcasters are reminded that products and services must not be promoted in programmes. There is an exception under Rules 10.3 and 10.6 for programme-related material. However, this programme-related material is narrowly defined. Rule 10.7, meanwhile, makes clear broadcasters are responsible for any programme-related material. Therefore they must consider very carefully whether it is appropriate for viewers or listeners, who have responded to a promotion for programme-related material, to be sent any other material, particularly if it is unsolicited.

Broadcasters should also consider conducting appropriate research when approached by any ministry to broadcast their religious programmes. They must satisfy themselves that broadcast of this material would not result in a breach of the Code. Ofcom expects broadcasters to be able to demonstrate that they took all reasonable steps to be able to demonstrate as appropriate that these programmes did not, for example, exploit the susceptibilities of its potential audience or were platforms for the promotion of products or services.

The full document is available below



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