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Standards cases

In breach

4Homes Magazine
As promoted on Channel 4 and More4

Introduction

Channel 4’s commercial arm, 4Ventures, launched a magazine entitled “4homes” in April 2006. The magazine was promoted around a range of property and lifestyle programmes on Channel 4 and More 4, including Relocation, Relocation, Relocation; Selling Houses; Streets Ahead; Ramsay’s Kitchen Nightmares; and Gordon Ramsey’s F Word.

We were contacted by the Producers’ Alliance for Cinema and Television (“Pact”). Pact is a trade association that represents and promotes the commercial interests of independent feature film, television, animation and interactive media companies in the UK .

Pact queried the basis upon which the 4homes magazine was being promoted in promotional airitme (that is , airtime outside programmes that does not count towards advertising minutage) . It did not believe that this promotion was consistent with the requirements of the Broadcasting Code.

Rule 10.3 of the Broadcasting Code states:

“Products and services must not be promoted in programmes. This rule does not apply to programme-related material.”

According to Section Ten of the Broadcasting Code, the meaning of ‘programme-related material’ is:

“…products or services that are both directly derived from a specific programme and intended to allow listeners or viewers to benefit fully from, or to interact with, that programme.”

Pact queried how the 4homes magazine could be described as being “directly derived from a specific programme”. In particular, it did not accept that the magazine was directly derived from any one of the programmes broadcast on Channel 4 and More 4, around which it had been trailed. Pact therefore did not believe that the magazine was able to be promoted as programme-related material (“ PRM ”).

We asked Channel 4 for its comments.

Response

Channel 4’s response focussed on the provisions contained in the Programme Code of one of Ofcom’s predecessor regulators, the Independent Television Commission (“the ITC”). The ITC Programme Code (“the Programme Code”) was superseded in July 2005 by the Ofcom Broadcasting Code. The broadcaster contrasted the wording of the current definition of PRM in the Broadcasting Code with the wording of the corresponding provision in the Programme Code.

The relevant wording in the Programme Code read “Commercial products or services must not be promoted within programmes…However, the availability of licensee produced material or services (factsheets, helplines and websites) that can demonstrate a clear relationship to the content of programme, can be promoted if editorially justified. The licensee must retain the editorial responsibility for these products or services.”

Channel 4 said that the definition of PRM in the Programme Code was much more flexible since PRM was merely required to “demonstrate a clear relationship to the content of programmes”.

Channel 4 claimed this had enabled it to build its approach to programme support and PRM on genres, rather than always around particular programmes or series. As the Programme Code referred to “factsheets, helplines and websites”, Channel 4 considered that the promotion of the 4homes magazine (which had not existed when the old rules were in force and so not been promoted under them) was simply an extension of the reference to “websites” to print media. In its view, the magazine would have been permitted as PRM under the old rules and it argued that it was wrong to prohibit the promotion of this material as PRM under the new rules in the Broadcasting Code.

It said that the magazine was intended to provide support to the diverse range of Channel 4 programmes focused around the concept of home, be that food, interiors, property or gardens. The schedule included:

Grand Designs : Streets Ahead

Property Ladder : City Gardener

Selling Houses : A Place In the Sun

Location, Location, Location : The Perfect Home

Relocation Relocation : Ramsay’s Kitchen Nightmares

Demolition : The F Word

Honey, I Ruined the House

Channel 4 said that the collective audience for Channel 4 home interest and lifestyle programmes was substantial and that the 4homes magazine existed to help those audiences interact with the programme brands, read material written by the presenters and know what was coming up when in terms of output.

Channel 4 also referred to the 4homes website within Channel4.com, which it said provided programme support material (as sourced from producers of the programmes), and also had a “magazine” element, which gave viewers more interaction with and information on the output itself. The latter was replicated in the 4homes magazine which was “effectively an extension of the website into the printed form.”

Channel 4 described the magazine as largely centred around contributions from Channel 4 presenters of home interest and lifestyle programmes, with regular contributions from Kevin McCloud (Grand Designs); Naomi Cleaver (Honey I Ruined The House); Andrew Winter (Selling Houses); Matt James (City Gardener); and Gordon Ramsay (The F Word/Ramsay’s Kitchen Nightmares).

However, it conceded that it had often been restricted in the depth of editorial it could offer. Intellectual property rights in Channel 4’s programme titles remained with the independent producers, and it could not make use of a title in the context of PRM without the specific consent of the producer.

Decision

Broadcasters must bear in mind that the ability to promote a product or service as PRM in or around programmes is permitted purely by way of exception to the fundamental broadcasting principle that advertising and programme content must be kept separate.

In order to fall within this exception, the product or service must satisfy the meaning of PRM set out in Section Ten of Ofcom’s Broadcasting Code. This meaning is derived from the wording of the Television Without Frontiers (“TWF”) Directive[^(-1-)] .

Article 18 of the TWF Directive sets out limits on the proportion of transmission time that may be devoted to advertising, and Article 18.3 states:

“For the purposes of this Article, advertising does not include:

- ann ouncements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes;…”

The recitals to the Amending Directive[^(-2-)] state:

“(34) Whereas daily transmission time allotted to ann ouncements made by the broadcaster in connection with its own programmes and ancillary products directly derived from these, or to public service ann ouncements and charity appeals broadcast free of charge, is not to be included in the maximum amounts of daily or hourly transmission time that may be allotted to advertising and teleshopping;

 (35) Where, in order to avoid distortions of competition, this derogation is limited to ann ouncements concerning products that fulfil the dual condition of being both ancillary to and directly derived from the programmes concerned; whereas the term ancillary refers to products intended specifically to allow the viewing public to benefit fully from or to interact with these programmes;…”

As Recital 35 recognises, a broadcaster’s ability to make ann ouncements about “ancillary” products directly derived from its programmes, which do not count towards its daily advertising minutage, is extremely valuable and may disadvantage other parties. Such ann ouncements may therefore only be made where certain criteria – specified in Recital 35 and reflected in the wording of the definition of PRM in the Code - are satisfied.

Similarity, in terms of genre or theme, between a programme and product or service is not in itself sufficient to establish that the product or service is “directly derived” from the programme.

Having considered carefully the material being promoted and the Code requirements, we do not believe that the 4homes magazine satisfies the definition of PRM in the Code. In the editions of the magazine that we obtained, very little of the content could be described as “directly derived from a specific programme”. The magazine seems very similar to other homes and interiors magazines on the market, largely comprising generic content about interiors, property and lifestyle. There are very few references to Channel 4 programmes in any of the features. Moreover, any such references tend to be in passing rather than substantive; by way of illustration, for example, none of the articles or features include the name of a Channel 4 programme in its title and there is only limited editorial discussion of actual programme content.

We noted that Channel 4 felt that the 4homes magazine was an extension of the 4homes content on its website. However, in contrast to the magazine, the 4homes website (which is part of Channel 4’s website) contains in-depth features about the 4homes stable of programmes, including episode synopses, interviews with programme presenters, and information on how to take part in a show.

Moreover, a broadcaster’s website may be considered to be a “broadcasting-related service” under Ofcom’s Cross-promotion Code[^(-3-)] . Therefore, even if a website contains mainly genre-based material and therefore does not satisfy the definition of PRM , a broadcaster may still be able to cross-promote it in promotional airtime. In contrast, a magazine is not a broadcasting-related service and therefore c ann ot be cross-promoted.

Ofcom does not consider that it is possible to justify the promotion of material on the basis of a Programme Code which is no longer in force. Broadcasters must ensure that any programme-related material that they promote or are seeking to promote complies with Ofcom’s Broadcasting Code, which was issued on 25 May 2006 after public consultation and has been in force since 25 July 2005 . The Programme Code was produced by Ofcom’s predecessor, the ITC , in a different environment, and was more restrictive than the Broadcasting Code regarding the promotion as PRM of “commercial products or services”. The 4homes magazine itself was not launched until 2006, and we are not aware of an instance where Channel 4 promoted a genre-based magazine as PRM while the Programme Code in force.

We are sympathetic to Channel 4’s point that there are rights issues which have constrained its use of programme titles in the 4homes magazine. However, Rule 10.3 is concerned only with the promotion of products and services in or around programmes. It does not prevent a broadcaster from developing magazines and other products, whether programme-related or not, and promoting them, either in paid-for advertising time or off-air, for example via its website.

Breach of Rule 10.3

Footnotes:

1.-Directive 89/552/ EEC as amended by Directive 97/36/EC

2.- Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/ EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities

3.- See http://www.ofcom.org.uk/tv/ifi/codes/crosspromotioncode/

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Broadcasting Code Guidance Update

 To help clarify the requirements of the Code regarding programme-related material, we have now added the following paragraphs to our existing guidanceonSection 10: Commercial references in programmes and other matters (the revised guidance on Section 10 is available in full on our website):

Meaning of ‘programme-related material’

The meaning of ‘programme-related material’ in the Broadcasting Code has been derived from the wording of the Television Without Frontiers (‘TWF’) Directive[^(-4-)] .

Article 18 of the TWF Directive sets out limits on the proportion of transmission time that may be devoted to advertising, and Article 18.3 states:

“For the purposes of this Article, advertising does not include:

- announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes;…”

The recitals to the Amending Directive[^(-5-)] state:

“(34) Whereas daily transmission time allotted to announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from these, or to public service announcements and charity appeals broadcast free of charge, is not to be included in the maximum amounts of daily or hourly transmission time that may be allotted to advertising and teleshopping;

 (35) Where, in order to avoid distortions of competition, this derogation is limited to announcements concerning products that fulfil the dual condition of being both ancillary to and directly derived from the programmes concerned; whereas the term ancillary refers to products intended specifically to allow the viewing public to benefit fully from or to interact with these programmes;…”

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; these principles apply equally to radio. 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. 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.

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. Both elements of the meaning of ‘programme-related material’ must therefore be satisfied.

Further guidance by way of clarification is provided below:

 “Directly derived from a specific programme”

The product or service must be ‘directly derived’ from a specific programme and therefore it is very unlikely that we would consider a product/service which existed before that programme to be programme-related material.

Broadcasters should also note that similarity, in terms of genre or theme(s), between a programme and product/service (for example, where both are about football, cookery or gardening) is not in itself sufficient to establish that the product/service is directly derived from the programme.

A product or service directly derived from more than one specific programme may be considered to be programme-related material in relation to those programmes but the scope for this is likely to be limited. However, this will depend on the facts of an individual case. In each case, 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.

“Benefit fully from or interact with”

Moreover, the material must be intended to allow listeners or viewers to benefit fully from, or to interact with, that specific programme. This will often be material that is editorially based, for example, a book, podcast, CD or DVD . Where the material is not editorially based, the broadcaster is likely to need stronger editorial justification that the material is intended to allow listeners or viewers to benefit fully from, or interact with, the programme.

Appropriateness of promotion for PRM

In promoting a product or service as ‘programme-related material’, broadcasters must have regard to the rules in Section One, Protecting the Under-eighteens, and Section Two, Harm and Offence.

Particular care should be taken where broadcast advertising of the product or service is prohibited or restricted.

A promotion for programme-related material in or around a children’s programme should normally be in terms of general information only, for example about the price or availability of the product; it would not normally be appropriate for such a promotion to invite a direct response.

Rule 10.6 Programme-related material

Rule 10.6 provides a limited exception to Rule 10.3.

To avoid undue prominence, references to programme-related material should be brief. Such references should be confined to the name of the item, a basic description, its cost and/or availability. As a general rule, names of retailers should not be given.

Programme-related material may only be promoted in or around the relevant programme.

Rule 10.7 Responsibility for programme-related material

Under Rule 10.7, it is the broadcaster’s responsibility to ensure that any product or service promoted as programme-related material does in fact satisfy the definition of programme-related material. This does not mean that broadcasters may only promote programme-related material which they themselves own. The material may come from third parties, for example material created, manufactured, and/or distributed by persons other than the broadcaster. However, the broadcaster is the person with responsibility for ensuring that it may be promoted as programme-related material.

Footnotes:

4.-Directive 89/552/EEC as amended by Directive 97/36/EC

5.- Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities

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Cops Uncut 2
Bravo, 13 June 2006, 14:30, 16 June 2006, 14:30 and 19:30, 20 June 2006, 14:30

Introduction

Cops Uncut 2 is an observational series that documents the work of the police and portrays the kinds of anti-social behaviour they encounter on a day-to-day basis.

13 June 2006

A viewer complained that the word “fucking” was clearly subtitled, although it was edited in the commentary.

16 and 20 June 2006

A viewer complained that both episodes contained the word “fuck” in subtitles and, indistinctly, in the commentary.

Response

Flextech Television, the licensee responsible for Bravo, explained that these incidents were the result of human error. In the case of the first incident, this was noticed on transmission and the programme re-edited for later transmission. On receipt of the second complaint a full review was undertaken of the whole series, to ensure that all other episodes were fully compliant. Any offending language was removed from both the audio and subtitles from all pre-watershed episodes. A statement was then prepared for the beginning of all pre-watershed versions to apologise to viewers for any offence caused by these unintentional errors.

Flextech pointed out that Bravo’s audience consisted mostly of 16-34 year old men and the demographic for this series was no different – child viewing was negligible. Nevertheless the licensee acknowledged that this did not excuse the swearing going to air.

The broadcaster apologised for any offence these broadcasts had caused, and said that it was not its intention to upset or offend the audience. These incidents were the result of human error on the part of one freelancer whose contract had been terminated. The entire series had now been re-viewed by Flextech’s permanent compliance team and all corrections had been made. Programmes were now viewed and edited by one person and checked by a second editor. The broadcaster said that a change in the company responsible for its playout transmission facility had brought about a change in the compliance process, which should result in these types of mistakes being minimised.

Decision

Rule 1.14 of Ofcom’s Broadcasting Code requires:

“The most offensive language must not be broadcast before the watershed or when children are particularly likely to be listening.”

During the 13 June 2006 programme, the word “fucking” was subtitled on one occasion, although the audio was bleeped.

On the 16 June 2006 , there was one incident of the word “fucker” that was subtitled, although the accompanying audio was very indistinct. The same episode was repeated at 19:30 . On the 20 June 2006 the word “fucking” was subtitled and the audio indistinct.

Although this series does not generally attract a significant child audience, it is of interest to children. The swearing was unsuitable for inclusion in this pre-watershed series.

This is the third time that the licensee has had a failure in its compliance procedures for this particular series. Ofcom reported in Bulletin 30 that there had been a breach of Section 1.5 (Bad Language) of the (ex- ITC) Code when Bravo transmitted offensive language (“fuck”) in an edition of the series broadcast twice on 4 January 2005. On that occasion, Bravo said that the series had two versions, a post watershed version and a ‘PG’ daytime version. Unfortunately the wrong version had been transmitted. In Bulletin 46, Ofcom reported a further breach of Section 1.5 (Bad Language) of the (ex- ITC) Code when Bravo broadcast an edition of the series on 30 April 2005 that contained the word “fucking”. On that occasion, Flextech said that its outside facility carrying out the editing failed to make the necessary edits. The broadcaster said that it was investing in both training and new digital technology to help its own compliance editors view the material themselves. On that occasion, we reminded the broadcaster that it remains the responsibility of the licensee to preview the programme prior to transmission to ensure that the programme is compliant.

We welcome the apology given to viewers and the steps that have been taken by Flextech to ensure that this series is compliant. However, we have concerns that this is the third code breach for the same issue in the same series.

Breach of Rule 1.14

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Resolved

The Mint
ITV Play, 12 May 2006, 20:05 and 13 May 2006, 18:45

Introduction

In the Extra Mint Teapot Jackpot, a jackpot round played by competition winners, contestants had to select numbered teapots, from 1 to 7. Each teapot lid revealed a letter – A,E,I,M,N,T or T. As each teapot was chosen, the revealed letter was placed consecutively on to a rack. Another teapot was picked until the letters, taken consecutively, could no longer form part of a word eg “T” “I” “M” could go on to form another word e.g “TIME”. However if the next letter picked was “T” – making “TIMT”, the competitor would lose the opportunity to continue, as there is no such word as “TIMT” or a word that starts with that combination of letters.

£50 was awarded for each letter that potentially formed part of a word (if any) that had been revealed, with a prize of £5,000 on offer to any contestant that managed to pick the letters in the order that spelt “ MINT TEA.”

A viewer claimed that on two occasions, this jackpot had not been conducted properly. One contestant had not been allowed to continue after picking A, M and I, yet “amine” was a word, while another contestant had been stopped after picking M,I and E, yet “mien” was a word.

Response

ITV said that the range of possible solutions was researched for the producers by an independent question setter who also worked on productions like Mastermind and Who Wants To Be A Millionaire. Her source was Chambers Dictionary. This was normally mentioned by presenters while the competition was underway, viewers usually being told that the words capable of being spelt had to be among the words on Extra Mint’s list of solutions, as compiled from that dictionary.

“Amine”, which appears in Chambers 21 st Century Dictionary, had been omitted from the list of solutions, while “mien” was on the list but had been missed by the production team. Unfortunately, both jackpot games had been wrongly halted. The broadcaster confirmed that the producers had undertaken to contact the contestants and pay them the extra money they could have won if they had been allowed to continue.

The broadcaster apologised for these human errors. It confirmed that Extra Mint had ended its current run and that the individual producers responsible were no longer working on The Mint. It added that the production team had been strengthened, “with the introduction of a very experienced Executive Producer.” ITV was therefore confident that similar errors would not recur.

Decision

Rule 2.11 of the Broadcasting Code requires that:

“Competitions should be conducted fairly, prizes should be described accurately and rules should be clear and appropriately made known.”

Errors of this kind can affect viewers’ confidence in the fairness of broadcast competition programming. We therefore welcome ITV’s apology and the action it has taken in way of reparation and to ensure no recurrence. However, we would be concerned if similar problems arise again.

Resolved

The original decision on this programme was appealed by the broadcaster, leading to a review. This finding is the result of that review.

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Fairness and Privacy Cases

Not Upheld

Complaint by Mr William Coulson
The Mike Parr Breakfast Show, BBC Radio Newcastle, 6 February 2006

Summary: Ofcom has not upheld this complaint of unfair treatment. On 6 February 2006 , BBC Radio Newcastle broadcast an edition of The Mike Parr Breakfast Show. Listeners were invited to call the programme and give their views on whether or not women should be allowed into a working men’s club and the more general topic of single sex clubs or organisations. Mr William Coulson was the first of a number of callers to give his opinion on this topic and on European anti-discrimination legislation. During the discussion the programme’s presenter asked Mr Coulson “why don’t you like women?”

Mr Coulson complained to Ofcom that he was treated unfairly in the programme as broadcast in that the presenter suggested that he didn’t like women and that he was given no opportunity to respond to the accusation.

Ofcom examined the programme and, taking into account the reaction by the studio guests and another caller to Mr Parr’s suggestion and Mr Coulson’s ability to put forward his views in an articulate way and robustly counter the suggestion, Ofcom considered that the comments were unlikely to have materially affected the audience’s view of Mr Coulson, his opinions and knowledge of the subject in a way that was unfair to Mr Coulson. Further, Ofcom was satisfied that Mr Parr had given Mr Coulson an adequate and timely opportunity to respond to the suggestion. Ofcom, therefore, found no unfairness to Mr Coulson.

Introduction

On 6 February 2006, BBC Radio Newcastle broadcast The Mike Parr Breakfast Show, a radio magazine programme featuring news and issues of the day. Listeners were invited to call the programme and give their views on a number of topics introduced by Mr Mike Parr, the programme’s presenter. In this particular edition of the programme, Mr Parr was joined by two studio guests: Mr Douglas McClannon (a design academic) and Ms Pauline Short (a marketing consultant).

One of the topics introduced for discussion by Mr Parr was whether or not women should be allowed into a working men’s club and the more general topic of single sex clubs or organisations and whether the other gender should be allowed access.

Mr William Coulson was the first of a number of callers to give his opinion on this topic and on European anti-discrimination legislation. During the discussion, Mr Parr asked Mr Coulson “why don’t you like women?” A robust discussion ensued between Mr Coulson and Mr Parr until Mr Parr terminated Mr Coulson’s call by thanking him for calling and commenting that he had had “a fair crack of the whip”.

After Mr Coulson’s call was terminated, Mr Parr asked his studio guests whether they felt Mr Coulson “had some kind of problem with women there from the way he was talking?” Mr Parr also stated that Mr Coulson would not answer this question. Ms Short speculated that Mr Coulson felt very angry about “something” and Mr Parr said that he wished he knew why Mr Coulson held that particular view. Both Ms Short and Mr McClannon agreed with one of the points that Mr Coulson made, that equal opportunities should be balanced in its application.

After this brief discussion between Mr Parr and his two studio guests, a second caller (Michael) to the programme said that he was disappointed with Mr Parr because it was unfair of him and his studio guests to refer to the previous caller (Mr Coulson) as having a problem. Michael went on to say that a man was entitled to his opinions and that having those opinions did not mean that he had a problem. After this call, Mr Parr commented that he was upsetting a few people and he later invited listeners to call the programme and tell him “if you think I am speaking unfairly...come on and tell me.”

Mr Coulson complained to Ofcom that he was treated unfairly in the programme as broadcast.

The Complaint

Mr Coulson’s case

In summary, Mr Coulson complained that:

a) He was personally attacked by Mr Parr with a “cheap jibe” that suggested that his views on the issue being discussed were informed by the fact that he didn’t like women. Mr Coulson felt that the attack was abusive and was made to “invalidate” his case and his knowledge.

b) He was cut off air and given no opportunity to respond to Mr Parr’s “sneering” reference to him as having a problem.

The BBC ’s case

In summary, the BBC said that, the phone-in part of the programme was known as a lively and robust forum where opinions on many subjects were aired, challenged and debated. The BBC said that Mr Coulson was a regular caller and contributor to the programme and the programme team were familiar with his views on “men’s rights” as well as his interest in, and work for, a prostate cancer charity.

In response to Mr Coulson’s specific heads of complaint, the BBC said that:

a) Mr Coulson was invited onto the programme to argue that men should be entitled to their own space in a working men’s club without having women present which, the BBC said, he did very cogently. However, Mr Coulson deviated away from the discussion about single sex clubs to introduce issues of prostate cancer support groups, women-only library sessions and how the policy of excluding women from conscription in some EU countries led to women gaining an unfair advantage over men in their university careers.

The BBC said that it was Mr Coulson who had introduced the notion of discrimination, unfair advantage and privilege for women. In these circumstances, it did not seem unreasonable for Mr Parr to ask him “why don’t you like women?” This, the BBC said, was a fair question in the context of a though-provoking discussion of a highly contentious and emotive issue. Mr Parr’s discussion with Ms Short and Mr McClannon over whether Mr Coulson appeared to have a problem with women immediately after Mr Coulson’s call was entirely justified journalistically. His view that women were given unfair privileges over men demanded further debate. When the second caller, Michael, came onto the programme, he expressed sympathy for Mr Coulson saying “the man is entitled to his opinion” and adding that his views did not mean that he had “a problem” with women. However, Michael kept to the topic under discussion and did not claim that women enjoyed unfair advantages.

The BBC regretted that Mr Coulson felt that Mr Parr’s comments were a personal attack on him but disputed that the studio banter was the “attack” he perceived it to be. Mr Coulson was a contributor to a live phone in programme during which he and the audience would have naturally expected his views to be tested and questioned. As a regular listener, Mr Coulson would have known and expected this.

b) Mr Coulson had ample opportunity to explain his position. It was Mr Parr’s intention in framing the question in a provocative form that Mr Coulson would take the opportunity to explain that he was not misogynistic. However, Mr Coulson chose not to answer the question but, instead, outlined why he thought the question was irrelevant and took the conversation into areas which were not the subject of debate. It was at this point of the discussion that Mr Parr decided it was time to move the programme on.

Decision

Ofcom’s statutory duties include the application, in the case of all television and radio services, of standards which provide adequate protection to members of the public and all other persons from unfair treatment in programmes included in such services. Where there appears to have been unfairness in the making of the programme, this will only result in a finding of unfairness if Ofcom finds that it has resulted in unfairness to the complainant in the programme as broadcast.

In carrying out its duties, Ofcom has regard to the need to secure that the application of these standards is in the manner that best guarantees an appropriate level of freedom of expression. Ofcom recognises that (subject to the provisions of the Ofcom Broadcasting Code) broadcasters can quite properly comment and take particular viewpoints on the subjects of broadcast programmes. However, it is essential, not only to the parties directly concerned but also to listeners and viewers, that such comments should be accurate in all material respects so as not to cause unfairness. Ofcom is also obliged to have regard, in all cases, to the principles under which regulatory activities should be transparent, accountable, proportionate and consistent targeted only at cases in which action is needed.  

This case was considered by Ofcom’s Executive Fairness Group.

a) Ofcom first considered Mr Coulson’s complaint that he was personally “attacked” by Mr Parr with a “cheap jibe” that suggested that his views on the issue being discussed were informed by the fact that he didn’t like women. The “attack” was abusive and was made to “invalidate” his case and his knowledge.

Ofcom sought to determine whether Mr Parr’s comments were likely to have materially affected the audience’s view of Mr Coulson, his opinions and knowledge of the subject in a way that was unfair to Mr Coulson. In doing so Ofcom examined the comments made by Mr Parr and Mr Coulson during their exchange. Ofcom also examined the comments made by Mr Parr, the studio guests and other callers once Mr Coulson’s call had been concluded.

When considering this complaint Ofcom was aware of the broadcaster's right (subject to the provisions of Ofcom’s Broadcasting Code) to comment and take particular viewpoints on the subjects of broadcast programmes.

Ofcom noted that during the discussion Mr Parr asked Mr Coulson “why don’t you like women?” A robust discussion ensued between Mr Coulson and Mr Parr in which Mr Coulson clearly articulated his views on gender discrimination. After Mr Coulson’s call was terminated, the discussion continued in the studio when Mr Parr asked his studio guests whether or not they felt that by the way Mr Coulson had spoken that he had “some kind of problem with women.” Ms Short stated that she thought that Mr Coulson felt “very angry about something” and that “perhaps he just had a bad experience.” Mr McClannon made no comment on whether Mr Coulson had a problem with women or not. Both studio guests, Ofcom noted, agreed that Mr Coulson had raised an important point about equal opportunities and that its application should not be one-sided.

The next caller to the programme (“Michael”) said that Mr Parr had been unfair to Mr Coulson in questioning whether he had a problem with women. Michael articulated that Mr Coulson was entitled to his opinions and that his point of view had been “generic” and was not “singular to a particular thing”. He said that by holding the opinions that Mr Coulson held, it did not mean that “he had a problem.”

Ofcom considered that the format of the phone-in part of the programme was well-established on BBC Radio Newcastle and that listeners would have been familiar with the presenter’s style and the “lively and robust” forum it offered. In the circumstances, and taking into account the reaction by the studio guests and Michael, the second caller, to Mr Parr’s question and Mr Coulson’s ability to put forward his views in an articulate way and robustly counter Mr Parr’s question as to why he did not like women (as described above), Ofcom considered that listeners would not have taken Mr Coulson’s opinions as expressed in the call to mean that he necessarily had a problem with women. Mr Parr’s comments were therefore unlikely to have materially affected the audience’s view of Mr Coulson, his opinions and knowledge of the subject in a way that was unfair to Mr Coulson. Ofcom, therefore, found no unfairness in this respect.

b) Ofcom considered Mr Coulson’s complaint that he was cut off air and given no opportunity to respond to Mr Parr’s “sneering” reference to him “having a problem.”

Ofcom requires that if a programme alleges wrongdoing or incompetence or makes other significant allegations, those concerned should normally be given and appropriate and timely opportunity to respond.

In considering this complaint Ofcom first considered whether the programme made any such allegations about Mr Coulson. Ofcom then considered whether in the interests of fairness the programme makers were required to give him an opportunity to respond to the question as to why, allegedly, he did not like women.

Ofcom was satisfied that questioning why Mr Coulson did not like woman was capable of adversely affecting his reputation and as such could be described as a significant allegation.

However, having examined the recording of the programme and reading the transcript of it, Ofcom noted that Mr Parr put the question to Mr Coulson during the course of their on-air discussion. Mr Coulson responded to the question twice in the programme. In his first response, Mr Coulson replied that Mr Parr would not have asked a woman why she did not like men if she called the programme to talk about her support for “refuges or women victims of domestic violence.” Mr Coulson later asked Mr Parr “why should I have to be considered a misogynist?”

In these circumstances, Ofcom was satisfied that Mr Parr had given Mr Coulson an adequate and timely opportunity to respond to his question “why don’t you like women?” How Coulson chose to answer the question if, indeed, he did choose to answer it was a matter for him and him alone. Mr Parr had asked Mr Coulson the question relatively early on in the discussion and he was given the chance to respond to it if he wished. Ofcom, therefore, found no unfairness to Mr Coulson in this respect.

Accordingly, the complaint of unfair treatment was not upheld.

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Complaint by Mr Charles Ejogo on his own behalf and on behalf of his company Umbrolly Limited
Dragons’ Den, BBC2, 21 December 2005

Summary: Ofcom has not upheld Mr Charles Ejogo’s complaint of unfair treatment made on his own behalf and on behalf of his company Umbrolly Limited.

Mr Ejogo took part in the first series of Dragons’ Den, broadcast in 2004. Mr Ejogo secured financial investment from two of the programme’s investors (“Dragons”) after successfully presenting his idea for an umbrella vending machine. One year later, Mr Ejogo participated in this special edition of Dragons’ Den, which reviewed the progress of a selection of entrepreneurs who appeared in the first programme series.

In summary Mr Ejogo complained that he and his company were treated unfairly in that the programme: misled viewers about the progress of his business; falsely portrayed him as being unpredictable, unreliable and a poor time keeper; and, gave the false impression that his company no longer retained the contract to place umbrella vending machines on the Underground Network.

Ofcom found as follows:

a,c,d) Ofcom found the programme fairly summarised the progress Mr Ejogo and his company had made a year on from the first series of Dragons’ Den. In addition, Ofcom considered that the programme gave a fair indication of how Mr Ejogo planned to develop his business. In all the circumstances, Ofcom found the programme makers used their editorial discretion in an appropriate way and did not omit or disregard material facts given to them by Mr Ejogo.

b) Ofcom found the presenter’s comment that Mr Ejogo “is always late” did not result in unfairness to the complainant. In Ofcom’s view the opinion of the presenter was fairly balanced in the programme as broadcast by footage showing Mr Ejogo arriving ‘on-time’. Given the context of the comment Ofcom found viewers were unlikely to have interpreted the opinion of the presenter as a significant allegation of incompetence, and as such, Mr Ejogo was not entitled to a formal response.

In Ofcom’s opinion, the statement that Mr Ejogo was “never predictable” was not intended as a criticism, but rather was a favourable assessment of his character. Ofcom considered that viewers were likely to have understood from the statement that Mr Ejogo’s unpredictable nature explained how he was capable of overcoming obstacles that many others would have been defeated by. Further, that an unpredictable nature is one of a number of character traits that separate successful entrepreneurs from the lay person. In the circumstances Ofcom found no unfairness to Mr Ejogo or his business in this respect.

e) Viewers were likely to have understood that Mr Ejogo’s business continued to have a contract to place umbrella vending machines on the Underground Network as Mr Ejogo was included in the programme speaking of the existing Underground contract. Ofcom found no unfairness to Mr Ejogo or his company in this respect.

Introduction

This documentary programme reviewed the progress of a selection of entrepreneurs who appeared in the first series of Dragons’ Den. A year on from the first series, the programme reviewed the progress of a selection of entrepreneurs who appeared in the first series and examined “What is it that makes an entrepreneur succeed and what can go wrong?”

Mr Ejogo and his business, Umbrolly Limited which supplied umbrella vending machines, were one of seven entrepreneurs and businesses reviewed in the programme. The programme explained that two of the programme’s investors (“Dragons”) had decided to not go ahead with their investment in Mr Ejogo’s business after it was realised that Mr Ejogo’s contract with London Underground Limited (that allowed Umbrolly Ltd to place umbrella vending machines onto the Underground network) did not include the right to advertise on the side of the vending machines. The programme stated that “although it’s proving difficult to get [ the vending machines ] into the Underground, Charles is working hard to get other sites on board ”.

During the programme it was explained that following the withdrawal of the Dragons’ investment, Mr Ejogo had to adapt his plans for his umbrella vending machines. The programme stated that most of Mr Ejogo’s business now involved selling umbrellas directly to post offices and newsagents.

At one point during the programme, the presenter was shown waiting for Mr Ejogo. The presenter commented that “Now I’m waiting to meet Charles. I do have to tell you Charles is always late but he’s due in a couple of minutes - we’ll see if he makes it on time”. The programme showed Mr Ejogo arriving on time and the commentary stated “But one thing about Charles is he’s never predictable – he arrived bang on-time”.

At the end of the programme, Mr Ejogo was shown installing his first umbrella vending machine in Manchester .

Mr Charles Ejogo on his own behalf and on behalf of his company Umbrolly Limited (“Umbrolly”) complained of unfair treatment in the programme as broadcast.

The Complaint

Mr Ejogo’s case

In summary, Mr Ejogo complained that he and his company were treated unfairly in the programme as broadcast in that:

a) The programme portrayed him and his business in a way that was inaccurate, misleading and which was both personally and professionally damaging;

b) The programme attempted to portray him as unpredictable, unreliable, and a poor time keeper. This unfairly implied his business was conducted in a similar way. Mr Ejogo said that during filming he was not once late for a meeting or scheduled shoot;

c) The programme failed to mention that he had secured alternative investment to expand his business; employed staff; and moved into an office where he operated from despite the fact that the BBC filmed his office, staff and key meetings with partners. Reviews of other businesses in the programme included such information and gave “the impression of coherent, structured businesses”. Mr Ejogo complained the programme unfairly showed him working alone, without premises or staff. In addition Mr Ejogo complained that the accompanying music for his segments added to the “cowboy-type image”;

d) The programme did not give information about: how his business was growing; what the target markets were; successes to date; or, strategies for future growth. This was in contrast with the reviews of the other businesses featured in the programme. Viewers were, therefore, given an inaccurate and incomplete impression of where Umbrolly was “headed as a business” and “the extent of [ Mr Ejogo’s ] personal success as an entrepreneur for the business”;

e) The programme gave the impression that Umbrolly no longer had the contract to place their vending machines on the London Underground. This was untrue. Mr Ejogo had made this point clear during a filmed interview, but it was not included in the programme. Instead, the commentary on the issue gave the opposite, false impression. Mr Ejogo said that his company had become known for providing this product and the programme’s claim that the company was no longer able to perform this function undermined and misrepresented the business.

The BBC ’s case

In summary, the BBC responded to the complaint as follows:

a) Inaccuracies – damaging effect on Mr Ejogo and his business

In response to the complaint that the programme had had a damaging effect on Mr Ejogo’s business, the BBC cited Mr Ejogo’s email to them following the broadcast of the programme in which Mr Ejogo claimed the programme had:

“…produced some good results...two companies contacting me this morning after seeing the programme, one wanting to explore buying units for entry into Tokyo and the other a US hotel chain that wants to discuss potentially siting units in their UK and US hotels”

However the BBC said that the test which Ofcom must apply to the first head of complaint was not whether the programme had had a positive or negative effect on Mr Ejogo’s business but whether it portrayed him and his business activities fairly.

b) Portrayal of Mr Ejogo as unpredictable, unreliable and a poor time keeper

The BBC rejected Mr Ejogo’s claim that he was never late. The broadcaster said that Mr Ejogo was frequently late for appointments and sometimes missed them altogether. Out of a total of seven days filming with Mr Ejogo, the BBC said that he was late for at least four of them, and on more than one occasion the filming dates suggested or agreed by Mr Ejogo passed by without further word from him. Notwithstanding, the BBC said that the programme’s description of Mr Ejogo as an erratic time keeper was not presented as an adverse reflection on him personally or on him as a businessman.

The BBC said the inclusion of a comment by the presenter that Mr Ejogo was “never predictable” was not the same as calling someone unreliable and that it was clear from the rest of the programme that it was not meant in a disparaging sense. The programme made it clear that Mr Ejogo’s ability to meet setbacks by moving in an unexpected direction was presented as something of a virtue in business terms.

c) Unlike other participants, Mr Ejogo’s achievements were not included

The BBC maintained that in all the entrepreneur updates the approach was essentially the same. The programme reported how far each had progressed in their business endeavours, how their enterprises looked in relation to their initial business presentations to the Dragons, what challenges they faced, and what they had learned along the way.

In relation to Mr Ejogo’s complaint that the programme did not mention the alternative investments he had secured, the BBC referred to an email from him, which stated that the programme could not reveal details of the investments. The BBC said that in light of these sensitivities, the programme makers decided not to broach the question of investment.

The BBC said the programme did not mention Mr Ejogo’s employment of new staff but maintained this was in keeping with an approach where the primary focus was on the entrepreneurs themselves. In any event, the programme makers had only been introduced to two members of Mr Ejogo’s staff, one who refused to be filmed and the other who Mr Ejogo had fired.

The BBC did not believe the selection of music for Mr Ejogo’s contribution conveyed a “cowboy-type image”. The BBC said that had that been their intention, a much better selection of music could have been made. They were not aware of any cowboy references to the music used and believed the music selection was apt in a gently humorous way.

d) The programme did not give relevant details about Mr Ejogo’s business

The BBC believed that the programme painted an accurate picture of Mr Ejogo’s business and one which touched on many of the aspects that Mr Ejogo complained had been overlooked. The BBC said that the programme used the below list of qualitative measurements to assess the business of each entrepreneur:

• Growing business: The programme makers included footage of Mr Ejogo at a trade show selling direct to newsagents and small store owners and installing his first vending machine (an event which occurred only several days before transmission, but which the programme makers made special effort to include).
• Target markets: the programme included a quote from Mr Ejogo describing a scenario when the public would most likely purchase his product.

“People seem to come in and congregate out of the rain inside the [ shopping ] centre. They’re the people that will buy the product and also as you’re actually leaving the centre the ideas is that you’ll come and buy our product because it’s a couple of pounds as opposed to having to maybe come upstairs and popping into one of the shops here. It’s convenience, it’s on your way out, you’ll buy it. Rather than having to huddle under the entrance for 10-15 minutes while the rain stops.”

• Successes to date : Mr Ejogo’s material successes were minor, however the programme captured the moment when the first vending machine was installed, and referred to Mr Ejogo’s considerable sales through retail outlets.
• Strategies for future growth: It was made clear in the programme that though retail outlets were the most successful component of the business, Mr Ejogo’s ambitions for future growth were focussed on vending machines and a franchise network.

e) Mr Ejogo’s contract with London Underground Limited

The BBC denied that the programme gave the impression that Mr Ejogo no longer had a contract with London Underground Limited. Although the programme explained that the contract did not include the right to advertise on the side of the vending machines, the BBC said there was no suggestion that the contract to place the vending machines no longer existed. In addition, the BBC said that the inclusion in the programme of Mr Ejogo’s comment that “the contract that we have in place allows us to put the units in and sell the umbrellas” made it explicit that the contract did still exist. The BBC added that a later section of commentary would have made it clear to viewers that Mr Ejogo’s efforts to install machines in the Underground were ongoing:

“Charles is not idly dreaming about his Umbrolly machines. Although it’s proving difficult to get them into the Underground, Charles is working hard to get other sites on board”

Mr Ejogo’s comments in response to the BBC ’s statement

In summary, Mr Ejogo responded that:

a) Inaccuracies – damaging effect on Mr Ejogo and his business

Mr Ejogo said that the programme did not present him or his business fairly as the programme stated that he was “always late”, and confused the viewer about his contract with London Underground Limited and the direction of the business overall and business strategies overall. Mr Ejogo also believed that the presenter’s comment that “It’s hard to tell whether Charles is quick-thinking and adaptable, or whether he’s clinging on to his umbrella vending idea, well after he should have dropped it” was unfair as it was designed to cast doubts in the viewer’s mind.

b) Portrayal of Mr Ejogo as unpredictable, unreliable and a poor time keeper

Mr Ejogo rejected the BBC ’s claim that he had been frequently late for appointments and sometimes missed them all together. Mr Ejogo listed for Ofcom the details of each appointment he had with the BBC . On seven occasions he was either on-time or had been at the meeting place before the BBC . On one occasion it was impossible, because of unforeseeable traffic delays, to give an exact time of arrival as he was driving a van from London to Manchester . On another occasion, he arrived 10 minutes late but confirmed this with the programme maker by phone prior to his arrival. Mr Ejogo gave further details regarding a meeting in Basingstoke which he said he had not agreed to attend and described how he had had to re-arrange meetings and organise matters to meet the BBC ’s filming schedule.

c) Unlike other participants, Mr Ejogo’s achievements were not included

Mr Ejogo contended that he had not been treated in the same way as the other entrepreneurs:

• Progress so far: The programme failed to show that Mr Ejogo had taken on offices and staff - a major development as previously he had worked from home without staff. In addition, Mr Ejogo also said the programme failed to show or mention the company’s new smaller vending machine. This new development would have shown viewers how he had reacted to the market by developing and refining his product, and also how the new product design had opened new markets for the business.
• Enterprises compared to original proposal to the Dragons : Mr Ejogo said that because the programme makers chose to focus on the retail side of his business operations, viewers would have inferred that the vending machine side was posing problems and therefore had become less relevant than the retail side of the business. This was not true.
• Challenges : Mr Ejogo said that the challenges faced by him were clearly that he had lost the Dragons’ investment and that he had not yet been able to place vending machines on the Underground network. Mr Ejogo rejected the BBC ’s reasons for not referring to his new sources of funding as his email to the BBC clearly outlined what they could refer to in the programme. By not including any reference to the new sources of funding, Mr Ejogo said that the programme gave the impression that no alternative funding had been secured. Mr Ejogo also believed that the programme unfairly focussed on his decision to place vending machines into shopping centres. Mr Ejogo said that by focussing on this aspect of his business the programme limited the perceived scope of the business.
• Lessons learned : Mr Ejogo said that he failed to see how the programme could have set out what he had learned along the way, as the programme did not show how he had reacted to various challenges (e.g. new staff and the development of a smaller vending machine).

As regards the programme makers’ choice of music, Mr Ejogo maintained that the selection of music portrayed a ‘cowboy-type image’.

d) The programme did not give relevant details about Mr Ejogo’s business

Mr Ejogo said that he provided the programme makers with comprehensive details about his business and the programme maker’s decision to not include any of this information resulted in an unfair portrayal of his business.

As regards the qualitative measurements used by the programme, Mr Ejogo responded that:

• Growing business: the footage of him at the trade fair and installing a vending machine gave the impression that they were the only achievements the business had made. The programme failed to mention other relevant achievements such as the signing of new contracts and the development of a new smaller vending machine unit.
• Target markets: Mr Ejogo said that the inclusion of his comment about why he was interested in locating vending machines in shopping centres was not equivalent to giving relevant details about what the business’ growth strategies were or the company’s other target markets. He said that he had specifically told the programme makers which groups the company had started working with, but this information had not been included.
• Successes to date : Mr Ejogo acknowledged that the statements in the programme that he had decided to sell stock through a retail channel, and that this was the most successful part of the business, were true. However Mr Ejogo said these comments did not paint the full picture of the company. Specifically, the programme failed to explain that the company had secured new investment; designed and prototyped a new vending unit; signed new contracts; and, were working with businesses in new growth areas. Most importantly, the programme failed to explain that the company’s umbrellas were stocked in over 400 retail outlets, a figure which compared to the other featured businesses was significant.
• Strategies for future growth: In summary, Mr Ejogo said that the BBC had been given great detail about how the business was progressing with strategies across retail franchising and vending, and that information about the development of the new smaller units should have been included as it was an important element of the business’ growth strategy.

e) Mr Ejogo’s contract with London Underground Limited

Mr Ejogo said the statement in the programme that “although it’s proving difficult to get them into the Underground, Charles is working hard to get other sites on board” gave the clear impression that his company was having problems getting units onto the Underground network, which was not the case. The inference a viewer would have taken from that statement was that the units would not be on the Underground network anytime soon, if at all. This was contrary to information given to the programme makers that they would be placed on the network in the third quarter of this year.

The BBC ’s second statement

In summary the BBC responded as follows:

a) Inaccuracies – damaging effect on Mr Ejogo and his business

The BBC said that the inclusion of the comment by the presenter about whether Mr Ejogo was “quick thinking and adaptable, or whether he’s clinging onto his umbrella vending idea well after he should have dropped it” was an entirely fair observation, in light of the fact that Mr Ejogo’s business had changed greatly from his original proposal that he pitched to the Dragons.

b) Portrayal of Mr Ejogo as unpredictable, unreliable and a poor time keeper

The BBC said that the presenter’s remark that Mr Ejogo “is always late” was presented in the deliberately humorous form of categorical assertion which was immediately contradicted by events. The BBC did not believe that viewers would have taken it as criticism. Also, the comment was not so much a point about Mr Ejogo’s time keeping as about his unpredictability. This unpredictability was not presented in the programme as a negative quality but as part of a pattern of resilience and adaptability in the face of setbacks, which was portrayed as a business strength. The BBC noted that the programme’s last word on Mr Ejogo was:

“I don’t think he’s a guy that’s easily going to give up. And I think that he’ll go on to the next opportunity and I think he’s the type of guy that will bring success at some point”.

The BBC did not dispute that there were occasions when Mr Ejogo made arrangements with the programme makers and kept to them punctually, however it maintained that the programme makers’ dealings with Mr Ejogo were characterised by difficulty in getting him to make firm arrangements and to stick to them once made.

c) Unlike other participants, Mr Ejogo’s achievements were not included

The BBC said that the general approach adopted by the programme makers to report particular aspects of each entrepreneur’s progress did not equate to a commitment to report each and every detail of the entrepreneur’s developments since the original series. Nor was it an undertaking to include each and every claim made by the entrepreneurs (let alone reflect them uncritically). The BBC said that clearly judgements had to be made about which developments were the more significant. The fact that Mr Ejogo now operated a business which was markedly different from the one that he pitched to the Dragons was more to the point than the fact that Mr Ejogo operated from an office with a staff of two.

The BBC said they were baffled by Mr Ejogo’s assertion that the programme failed to show or mention the new smaller vending machine, as the programme included the following quote by Mr Ejogo:

“The larger machine that we originally pitched for was a lot bigger. The footprint was a lot bigger. We were also restricted in some of the places that we could actually install that machine. And we went back to the drawing board and we developed a much smaller machine so it’s accessible for many more sites”.

d) The programme did not give relevant details about Mr Ejogo’s business

The BBC maintained the programme’s portrayal of Mr Ejogo’s business was entirely fair. The programme explained that: the original proposition of installing vending machines in the Underground network had not yet been realized; Mr Ejogo was successfully selling umbrellas to retailers; Mr Ejogo saw the future of his business principally in terms of vending machines; a vending machine that suited a wider range of sites had been produced; and, that the first machine (one of the earlier bigger designs) had been installed shortly before the broadcast and had according to Mr Ejogo dispensed over 300 umbrellas in its the first week and a half.

In relation to Mr Ejogo’s other complaints about the programme’s failure to include specific details such as revenues to date and numbers of customers and contracts, the BBC said that Mr Ejogo’s information had been inconsistent, and, in the example of how many vending machines were actually in operation, unreliable. The BBC noted that Mr Ejogo’s variously referred to the number of retailers stocking his umbrellas as “over 400”, “about 500 customers”, “5-600 retailers” and “over 500 retailers”. The BBC provided Ofcom with a transcript and recording of Mr Ejogo’s unedited interview as evidence.

e) Mr Ejogo’s contract with London Underground Limited

In response to Mr Ejogo’s claim that the programme gave the impression his company was having problems getting units onto the Underground network, the BBC said that, self-evidentially, this impression was fair. The BBC noted that Mr Ejogo described a number of times throughout his interview the difficulties in getting the vending machines onto the Underground network, including:

Interviewer: “Why is there not a [ vending ] machine in [ the Underground network ] tomorrow or yesterday even ?”

Mr Ejogo: “Because as you probably know it’s not as easy as that. There’s planning, there are safety considerations. I mean in all honesty the London Underground was probably the first contract that we ever signed and it’s probably been the hardest one for us to get units out on to the network, simply because their safety standards are the highest; units have to adhere to certain regulations etc, and so it’s been very difficult to kind of move past that.”

Decision

Ofcom’s statutory duties include the application, in the case of all television and radio services, of standards which provide adequate protection to members of the public and all other persons from unfair treatment in programmes and unwarrantable infringement of privacy in and in the making of programmes included in such services. Where there appears to have been unfairness in the making of the programme, this will only result in a finding of unfairness, if Ofcom finds that it has resulted in unfairness to the complainant in the programme as broadcast.

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

In reaching its decision, Ofcom had regard for a copy of the programme, the programme transcript and both parties’ written submissions.

a) Mr Ejogo complained that the programme portrayed him and his business in an inaccurate and misleading way. Mr Ejogo said the programme was misleading and inaccurate because it stated that he was “always late”, and confused the viewer about his contract with London Underground Limited and the direction of his business overall. Mr Ejogo said this portrayal was both personally and professionally damaging.

Ofcom noted that Mr Ejogo’s complaints listed under this head of complaint were also complained of separately under subsequent heads of complaint. As such, Ofcom’s findings in relation to Head (a) can be found under the following headings:

Decision Head (b): Mr Ejogo was “always late”;

Decision Head (d): The programme confused viewers about the direction of Mr Ejogo’s business overall; and

Decision Head (e): The programme confused viewers about the existence of the London Underground Limited contract.

Ofcom was not in a position to consider whether Mr Ejogo’s claim that the above alleged unfair treatment, was both personally and professionally damaging, as the secondary consequences of any alleged unfair treatment falls outside of Ofcom’s remit.

b) Mr Ejogo complained that the programme attempted to portray him as unpredictable, unreliable, and a poor time-keeper. Mr Ejogo said that this unfairly implied that his business is conducted in a similar way.

Ofcom noted that the relevant programme sequence showed the programme’s presenter waiting for Mr Ejogo at a café. The presenter explained:

“Now I’m waiting for Charles. I do have to tell you Charles is always late but he’s due in a couple of minutes we’ll see if he makes it on-time ”.

The programme showed Mr Ejogo arriving at the café and the accompanying commentary stated:

“But one thing about Charles is he’s never predictable – he arrived bang on-time.”

In Ofcom’s view, it is generally accepted for programmes of this nature, to include the views of both the presenter and the resident experts assigned to comment on the work of the programme’s contributors. However, when including such opinions, programme makers and broadcasters must ensure that unfairness does not result.

If a programme alleges wrongdoing or incompetence or makes other significant allegations, those concerned should normally be given an appropriate and timely opportunity to respond.

In considering this head of Mr Ejogo’s complaint, Ofcom was first required to determine whether the personal opinion of the presenter that Mr Ejogo “is always late” and “never predictable” could be interpreted as significant allegations of incompetence. If finding so, Ofcom was then required to determine whether or not Mr Ejogo was provided with an appropriate opportunity to respond.

“Always late”

Ofcom noted that both Mr Ejogo and the BBC presented information about Mr Ejogo and his timekeeping. It is important to note, however, that Ofcom is not a fact finding tribunal. In reaching a decision about this complaint, it was not necessary for Ofcom to determine whether Mr Ejogo was in fact sometimes, always or never late for appointments but rather, whether the comment as broadcast was unfair.

Ofcom noted that the comment “I do have to tell you Charles is always late” was included in the programme as the personal opinion of the presenter. Ofcom also noted that the comment itself was immediately contradicted by actual events which showed the complainant turning up on-time.

Given the presentation of the comment in the context of Mr Ejogo arriving on-time Ofcom found that viewers were unlikely to have interpreted the opinion of the presenter as a significant allegation of incompetence. As the comment did not constitute a significant allegation of incompetence Ofcom found Mr Ejogo was not entitled to a formal response.

Ofcom therefore found the presenter’s comment that Mr Ejogo “is always late” was fairly balanced within the programme and did not result in unfairness to the complainant. Ofcom has not upheld this part of Mr Ejogo’s complaint.

Never predictable

In reaching a decision about the fairness of the statement that Mr Ejogo was “never predictable”, Ofcom considered that the inclusion of such a description could be interpreted in either a positive or negative way, depending on the context in which it appeared. Ofcom noted that in the programme as broadcast, the way in which the description was introduced was positive: Mr Ejogo was described as being “never predictable” after he acted in a way that was contrary to the predicted behaviour by arriving on-time. Ofcom further noted that this ability to act in an unexpected way (in particular, in a way different from how the majority of people would behave) was reinforced as a positive trait for a business person:

Presenter (during interview with Mr Ejogo):

“I’m interested in whether entrepreneurs generally, not just you but whether almost they have to be deluded in order to make it because people like me would just be focussing on all the knock backs and problems and hassles but you just seem to take them as they come”. [emphasis added]

In Ofcom’s opinion, the statement that Mr Ejogo was “never predictable” was not intended as a criticism, but rather was a favourable assessment of Mr Ejogo’s character. Ofcom considered that viewers were likely to have understood from the statement that Mr Ejogo’s unpredictable nature explained how he was capable of overcoming obstacles that many others would have been defeated by. And that being unpredictable is one of a number of character traits that separate successful entrepreneurs from the lay person.

c and d)

Ofcom noted that as Mr Ejogo’s complaint progressed, a number of the elements complained of under Heads (c) and (d) began to overlap. Ofcom considered that the crux of Heads (c) and (d) could appropriately be summarised in the following way:

1) Failure to include relevant information:

• New investment, staff, premises and contracts
• Design and development of a new vending machine

2) Scope of business and potential markets

• Shopping centre focus
• Retail versus vending machine focus

3) Cowboy-type image

4) Creation of doubt in the viewer’s mind

1) Failure to include relevant information

Mr Ejogo complained the programme failed to inform viewers that since his last visit to the Dragons’ Den he had secured new alternative investment; hired staff and arranged new premises; secured new contracts including over 400 new retail outlets; and, designed a new smaller vending machine.

Ofcom acknowledges that an hour long programme places time constraints upon the programme maker. Ofcom is aware that during the editing stage of the production process, a significant proportion of the programme footage may be removed. It should be noted that a programme will not result in unfairness simply because all footage filmed during the making of the programme or all of the views expressed by a contributor are not presented in full. However, programme makers and broadcasters have a responsibility to ensure that during the editing of a factual programme, material facts are not disregarded or omitted in a way that will result in unfairness to either a business or an individual. In relation to this complaint, Ofcom was required to determine whether the omission of the above mentioned information resulted in unfairness to Mr Ejogo or his business.

New investment, staff, premises and contracts

Ofcom first established whether in order for the programme to be fair to Mr Ejogo, it was incumbent on the programme makers to state that Mr Ejogo had secured alternative investment, hired staff and arranged new premise and secured new contracts (i.e. were these material facts that if not referred to would result in unfairness to Mr Ejogo).

Ofcom considered that the above actions taken by Mr Ejogo were only important in so far as they were a number of many actions carried out by him to ensure that his business developed. In Ofcom’s view, it was not so much the fact that Mr Ejogo carried out each and every one of these actions, but that he had managed to develop his business (despite the setback of losing the Dragons’ investment) that was of material importance. In the circumstances, it is Ofcom’s opinion that, provided the programme makers made clear to viewers that Mr Ejogo’s business had developed without the Dragons’ investment, it was at the programme makers’ discretion to select and chose which of Mr Ejogo’s actions they would include to convey his progress.

Ofcom noted that at the beginning of the programme it was explained that the Dragons had chosen to withdraw their investment in Mr Ejogo’s business after they realised that his contract with London Underground Limited did not include advertising rights. Following this explanation, the programme described that despite this loss of investment, Mr Ejogo’s business was still operating:

Commentary: “Charles Ejogo had to adapt his plans for umbrella vending machines, once his investment deal broke down. Most of Charles’ trade now involves selling umbrellas directly to post offices and newsagents…”

Mr Ejogo: “Obviously when the investment fell through there was a slight delay with getting those machines out and so obviously getting the stock out and so I think maybe that’s the mark of a good business that we were quick enough to adapt and rather than sit on stock that we were going to be left with we decided to sell stock through via a retail channel and at the moment that’s probably the most successful part of the business”

In addition to highlighting to viewers that Mr Ejogo had adjusted his business to adapt to the loss to investment, it is Ofcom’s opinion that the programme, in general, portrayed Mr Ejogo’s business as one that was growing and successful:

Commentary: “ [ Mr Ejogo ] has just received a delivery of 50,000 umbrellas ”

Commentary “In its first week and a half…the machine dispensed over 300 umbrellas”

Mr Ejogo: “…the various stages and strands of the business are exceeding the targets that we’ve got…”

In Ofcom’s view, the programme adequately demonstrated that Mr Ejogo’s business was developing despite the setback of losing the Dragons’ investment. In the circumstances, Ofcom found that the programme makers did not disregard or omit material facts and found no unfairness to Mr Ejogo or his business in this respect.

Design of new vending machine

Mr Ejogo complained that the programme failed to mention the development of his new smaller vending machine. In particular, Mr Ejogo said that footage of the new vending machine being designed was not included in the programme.

Ofcom noted that the following quote by Mr Ejogo was included in the programme:

“We are going into sites with the vending machine that’s not a problem we will be going into sites. I mean we had a couple of problems. The larger machine that we originally pitched for was a little bigger. The footprint was a lot bigger. We were also restricted in some of the places that we could actually install that machine. And we went back to the drawing board and we developed a much smaller machine so it’s accessible for many more sites.” [ Emphasis added ]

In Ofcom’s view, this quote provided relevant information about the development of a new vending machine that was necessary to understand how Mr Ejogo’s original idea of an umbrella vending machine had progressed. Ofcom acknowledged that footage of the actual design and development of the new machine was not included in the programme. However, in Ofcom’s opinion, this editorial decision did not result in unfairness to Mr Ejogo, as the material information that Mr Ejogo had responded to a market need for a new smaller machine had already been provided through the above quote.

Ofcom found the programme included material facts about Mr Ejogo’s development of a new smaller vending machine. In addition, Ofcom found that it was not essential for the programme to include footage of the new vending machines development in order to be fair to Mr Ejogo or his business. In the circumstances Ofcom found no unfairness to Mr Ejogo or his business in this respect.

2) Scope of business and potential markets

Mr Ejogo complained that the programme limited the perceived scope of his business and the company’s potential markets. Mr Ejogo said this was done through the programme’s focus on Mr Ejogo’s decision to place vending machines in shopping centres and on the retail side of his business (instead of the vending machine aspect).

In reaching a decision about this part of Mr Ejogo’s complaint, Ofcom weighed up the programme makers’ right to use their editorial discretion when editing a programme and the need for programme makers to present material facts in a fair way.

Shopping centre focus

Ofcom noted that in the programme as broadcast the topic of Mr Ejogo’s decision to place vending machines in shopping centres was introduced in the following way:

“Although it’s proving difficult to get [ the vending machines ] into the Underground, Charles is working hard to get other sites on board. Today he’s at a shopping centre in central London . ”

In Ofcom’s opinion, viewers were likely to have understood from this introduction that Mr Ejogo was looking at a number of markets for his vending machines in an effort to expand his business, one of these being the shopping centre market. While Ofcom appreciated that Mr Ejogo may have had a number of business strategies, given the time constraints of the programme, Ofcom considered that it was reasonable for the programme makers to select just one of these new markets for inclusion in the programme. In Ofcom’s view, the programme makers’ selection of the shopping centre market as an example of Mr Ejogo’s general strategy for growth was particularly relevant as it was not only readily identifiable for the viewer but because it was the strategy which supported the company’s first vending machine – a major milestone in Mr Ejogo’s business and of great interest to viewers of the first series of Dragons’ Den.

Given the significance of this milestone, Ofcom takes the view that the programme makers’ decision to select the shopping centre market as an example of the type of markets that Mr Ejogo was targeting to place his vending machines was reasonable.

Ofcom concluded that the programme had appropriately outlined that Mr Ejogo planned to target a number of sites for placement of his umbrella vending machines and had reasonably selected Mr Ejogo’s pursuit of the shopping centre market as an example of this strategy.

Retail versus vending machine focus

Mr Ejogo complained that the programme unfairly focussed on the retail side of his business instead of the vending machine side.

Having considered all the information submitted to it by Mr Ejogo and the BBC , Ofcom found no grounds for the complaint that the programme either unfairly focussed on the retail side of the Mr Ejogo’s business, or the implication that the vending machine side of the business did not receive a fair amount of attention.

In reaching this decision, Ofcom noted at the time of filming, the retail side of the business generated the company’s core revenue and accounted for the majority of the company’s trade. Given this, it is Ofcom’s view that the programme was therefore required to make this clear as to do otherwise would not have portrayed Umbrolly in an accurate way.

In relation to the vending machine side of the business, Ofcom noted that in the programme as broadcast the topic was raised numerous times, including: the contract with London Underground Limited; the development of the new smaller machine; the development of the shopping centre market; and finally, the installation of the first vending machine in Manchester . In the circumstances, Ofcom found that the relative amount of time given in the programme to the retail and vending machine aspects of Mr Ejogo’s business was not unfair.

3) Cowboy-type impression

Mr Ejogo complained that the music played during his contribution portrayed a “cowboy-type” image of him.

Ofcom appreciates that a well selected soundtrack can both directly and indirectly communicate to an audience. It is possible for a lyric or tune, to evoke an emotional response and help the viewer interpret programme footage. Ofcom sought to determine whether the lyrics or music played during Mr Ejogo’s story acted to portray Mr Ejogo in an unfair way.

The following songs were played during Mr Ejogo’s contribution:

Artist   Song

Moby : Run On

Coldplay : A Whisper

Supergrass : Coffee in the Pot

Blur : The Universal

Blur : To the end

After listening to the above song list, Ofcom was unable to associate any of the songs with a well known “cowboy”, “western” or in particular any negatively associated “cowboy-type” image. Added to this, the complainant did not provide Ofcom any supporting evidence that the music played during his contribution was associated with that of a “cowboy” theme.

Based on Ofcom’s assessment of the soundtrack, and in the absence of any convincing evidence from Mr Ejogo, Ofcom found that the music played during Mr Ejogo’s contribution did not portray a “cowboy-type” image and found no unfairness to the complainant in this respect.

4) Creation of doubt in the viewer’s mind

Mr Ejogo complained that the inclusion in the programme of the comment that “it’s hard to tell whether Charles is quick-thinking and adaptable, or whether he’s clinging on to his umbrella vending idea, well after he should have dropped it” cast doubt in the viewer’s mind about him and his business:

In Ofcom’s opinion, the inclusion of the above quote did not amount to criticism of Mr Ejogo or his business that was unfair or required a response by Mr Ejogo. Rather, the programme posed a valid question about Mr Ejogo’s decision to retain his original idea of the umbrella vending machine, despite having no vending machines in any sites a year after the first series of Dragons’ Den.

Ofcom further considered that any doubt that may have reasonably been raised in the viewer’s mind, would have been countered by watching the installation of Mr Ejogo’s first vending machine – demonstrating that there was a potential market for Mr Ejogo’s machines and that his decision to persevere with his original idea, had not been proved incorrect. Moreover Ofcom noted that the programme included Mr Ejogo’s claim of a high turnover from the machine in the initial week and a half of operation:

“In [ the vending machine’s ] first week and a half, [ Mr Ejogo ] says it dispensed over 300 umbrellas.”

Ofcom concluded that the programme’s observations about Mr Ejogo’s decision to pursue his original idea for his umbrella vending machine were valid and did not result in unfairness to Mr Ejogo or his business.

e) Mr Ejogo complained that the programme gave the false impression that his company no longer had the contract with London Underground Limited to place vending machines on the Underground network.

Before broadcasting a factual programme, including programmes examining past events, broadcasters should take reasonable care to satisfy themselves that material facts have not been presented, disregarded or omitted in a way that is unfair to an individual or organisation.

The topic of the contract with London Underground Limited was referred to in the first section of Mr Ejogo’s story and was central in explaining why the Dragons had withdrawn their investment from Mr Ejogo’s original business idea. The programme explained the Dragons had withdrawn their investment after discovering that the London Underground Limited contract did not include the right to place advertisements on the side of the vending machines. The focus of the sequence was to question whether Mr Ejogo had made clear to the Dragons what was included in his original business proposal.

In relation to the ongoing existence of the contract, Ofcom noted that at no point during the sequence was it stated that Umbrolly had lost its contract to supply umbrella vending machines on the Underground network. In addition, Ofcom noted that in the programme as broadcast, Mr Ejogo spoke of the existing contract:

Mr Ejogo: The contract that we have in place allows us to put the units in and sell the umbrellas. It doesn’t say that, it doesn’t give us the right to advertise. That’s something that we’d need to work with other partners that essentially own and control those rights.

Given this information provided by Mr Ejogo, and the absence of any statement that the contract no longer existed, Ofcom was satisfied that viewers were likely to have understood that Mr Ejogo’s business continued to have a contract to place umbrella vending machines on the Underground network. In the circumstances, Ofcom found no unfairness to Mr Ejogo or Umbrolly in this respect.

Accordingly, Ofcom has not upheld Mr Ejogo’s complaint of unfair treatment.

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Complaint by Mansfield District Council
Best and Worst Places to Live in the UK, Channel 4, 9 August 2005

Summary: Ofcom has not upheld this complaint of unfair treatment. The programme looked at the ten worst and the ten best places to live in the UK . Mansfield was identified as the sixth worst place to live and reference was made to increasing crime and falling standards of education. Mansfield District Council (“the Council”) complained that it had been misled as to the nature and purpose of the programme, and that it would have refused permission for the programme-makers to film in its CCTV control room if it had been aware of the programme’s nature.

Ofcom was not persuaded that the Council was treated unfairly in the programme. Although it was not satisfied that the Council was provided with sufficient clear information about the actual nature and purpose of the programme when agreeing to the filming inside the CCTV control room, Ofcom considered that the use of the footage, which did not impact on the ranking of Mansfield among the worst places to live, would have been unlikely to have materially affected viewers’ understanding of Mansfield in a way that was unfair to the Council.

Introduction

On 9 August 2005, Channel 4 broadcast Best and Worst Places to Live in the UK, a programme featuring the presenters, and in the style, of the property show Location, Location, Location. The programme set out to identify the ten best and ten worst places to live in the UK by using the criteria of crime, education, employment, environment and lifestyle. The programme compared 134 Local Authorities and sought to identify the type of property (and its social environment) £180,000 could buy.

Mansfield was identified as the sixth of the ten worst places to live and reference was made in the programme to the increase of crime in the area and the falling standards in education. Mansfield was described by the programme’s presenters as “a shadow of its former self” and an “urban jungle”. Footage of Mansfield District Council’s CCTV control room was included in the programme and was described as one of the most sophisticated in the country and contributed to four arrests each day. The programme went on to state that the “180,000 grand UK average house price goes a long way [in Mansfield ]”. The introductory commentary to the programme claimed that it was “going to upset a huge number of people this week” and that its “statistics are bullet-proof”.

Mansfield District Council (“the Council”) complained to Ofcom that it was treated unfairly in the programme as broadcast.  

Complaint

Mansfield District Council’s case

In summary, the Council complained that the programme makers, in order to secure its permission to film inside the CCTV control room, provided it with misleading information regarding the nature and intention of the programme. Mr Robert Shirley, the Council’s Public Relations Officer, said that he was contacted on 27 May 2005 by the programme makers who claimed that they were working on a programme called “Property Postcodes” which would be predominantly about comparing property prices in towns across the UK . The programme makers told Mr Shirley that Mansfield would be compared to an area in Surrey and that the programme would show the high quality of house that could be bought in Mansfield with the more modest property that could be bought for the same price in Surrey .

Mr Shirley was asked whether the programme makers could film in the Council’s CCTV control room to illustrate the efforts made by the Council in reducing crime in the area. The programme makers agreed not to identify any of the CCTV control room staff and, during the filming, Mr Shirley signed a release form which, he said, was entitled “POSTCODES – (Working Title)”. The filming took place on 27 May 2005 , the same day the programme makers first contacted the Council.

Having seen the footage in the programme as broadcast, Mr Shirley said that he, as the Council’s representative, was deliberately misled by the programme makers into granting them permission to film in the CCTV Control Room. Had the Council been told the true nature of the programme they would have declined the programme makers’ request to film.

Channel 4’s case

In summary, Channel 4 responded that the Council had not been misled. From the conversations that led to the permission being granted by the Council, the programme makers were confident that it was aware that the nature of the programme was about good and bad places to live in the UK . Channel 4 said that at no time during or prior to filming did the Council indicate that it was not fully aware of the nature of the project.

Channel 4 said that the programme makers explained to the Council that the reason they were particularly interested in discussing crime and the CCTV cameras “was because Mansfield had scored particularly poorly in the analysis of crime statistics [amongst other things]” and that filming in the CCTV control room would be a good way of showing that the Council was taking action to tackle street crime. In relation to the condition of staff anonymity to film in the control room, Channel 4 said that the CCTV control room staff were featured in silhouette with no discernible features and that this technique offered sufficient anonymity to them. The type of participation the Council had agreed was honoured by the programme makers and it did not seem to take issue with the way the CCTV control room staff appeared in the programme.

Channel 4 said that the release form highlighted the fact that “Postcodes” was a working title and that it is common practice during production to give the programme a title reflecting a generalised version of the programme content. Channel 4 noted that the Council signed the release form after giving permission to the programme makers to film the CCTV control room. This indicated its decision to grant permission was not based on the programme’s working title. Mr Shirley had spoken to the programme makers prior to the broadcast of the programme and although the Council had seen trailers for the programme, no issues were raised about the title or the filming of the CCTV control room. Channel 4 also said that although the trailers did not indicate which list – best or worst – Mansfield would be included, it was clear from Mr Shirley’s comments to the programme that it knew Mansfield would be on the worst list. Mr Shirley had asked the programme makers whether or not his workload was about to double, an assumption which must have been based on the information given to him by the programme makers during filming.

Channel 4 said that the programme makers told the Council that the programme would be about good or bad places to live and that there would be a comparison about what sort of house £180,000 would buy. Mansfield was judged to be good value for money on properties and this aspect was featured in the programme. The programme makers were fair in their dealings with the Council and had adhered to Ofcom’s Broadcasting Code.

Mansfield District Council’s response

In summary, the Council responded that it had clear recollections of, and witnesses to, the conversations with the programme makers prior to filming. The programme as broadcast did not resemble the description offered by the programme makers that: the programme would be fronted by the presenters of Location, Location, Location; that it would compare property prices in different parts of the country and that Mansfield fared well; that it wanted to include material about what it was like to live in different parts of the country; and, that the programme wanted to focus on the Council’s efforts to reduce crime by filming its CCTV control room.

Channel 4’s claim that it had told the Council about the comparisons that were to be made between different places to live in the UK and that Mansfield did not fare well in the area of crime was incorrect. The Council claimed that the only comparative element mentioned by the programme regarded property prices and that no suggestion was made that Mansfield could be a bad place to live.

The Council stated that it did not raise the issue of the nature of the programme during filming because it believed it was aware of the type of programme being made. The realisation of the discrepancy between what it was told and the actual programme became apparent only after its transmission.

The Council said that Mansfield was not scoring poorly in any crime analysis nor was any such analysis mentioned. The programme makers had said that they had wanted to film the CCTV control room in order to show the efforts employed to fight crime.

The Council said that it was in its initial telephone conversation with the programme makers that it was told that the programme would be called “Property Postcodes” with no mention of a “working title” at that stage. The title Best and Worst Places toLive would have raised questions for the Council about the nature of the programme.

Channel 4’s second statement

In summary, Channel 4 responded that its response was an accurate reflection of the events leading up to the Council granting access to film in the CCTV control room. The recollections of the witnesses to the Council’s conversations with the programme makers prior to filming were irrelevant and inaccurate because the witnesses were not directly or indirectly involved in the negotiations to film and the Council’s decision to give access. Also, it was inherent in what the Council was told by the programme makers that there was a best and worst element to the programme because the Council recognised that feature of the programme from the press coverage and that Mr Shirley was expressly told that this feature would be part of the programme. Also, the reason for the filming was to demonstrate the Council’s efforts in tackling crime, it would therefore have been aware that the area’s poor crime record would feature in the programme. Given that the Council understood that reason for filming the unit, its consent was fully informed.

The programme makers not only told the Council that the programme would compare property prices, but also told it that it was comparing good and bad places in the UK and that Mansfield scored low on crime.

The Council did not appear to doubt, or seek confirmation about, whether or not Mansfield would feature as one of the bottom ten local authorities during its telephone conversation with the programme makers prior to broadcast. The footage of the CCTV control room did not affect Mansfield ’s position in the bottom ten, but added to the Council’s positive portrayal. Channel 4 said that the programme as a whole was fair to the Council and that as the nature of the programme was properly explained to the Council, the working title was not material to its understanding of the reasons for the filming of the Unit.

For the Council to have made the link between the ranking element of the programme and the filming of its CCTV control room, it must have been aware of the nature of the programme. This suggested that the Council was told about the comparative elements of the programme by the programme makers. Channel 4 concluded that the Council had been provided with full and timely information. The Council, therefore, gave informed consent and its contribution was used fairly.

Decision

Ofcom’s statutory duties include the application, in the case of all television and radio services, of standards which provide adequate protection to members of the public and all other persons from unfair treatment and unwarranted infringements of privacy in programmes included in such services. Where there appears to have been unfairness in the making of the programme, this will only result in a finding of unfairness if Ofcom finds that it has resulted in unfairness to the complainant in the programme as broadcast.

In carrying out its duties, Ofcom has regard to the need to secure that the application of these standards is in the manner that best guarantees an appropriate level of freedom of expression. Ofcom recognises that (subject to the provisions of the Ofcom Broadcasting Code) broadcasters can quite properly comment and take particular viewpoints on the subjects of broadcast programmes. However, it is essential not only to the parties directly concerned but also to listeners and viewers, that such comments should be accurate in all material respects so as not to cause unfairness. Ofcom is also obliged to have regard in all cases, to the principles under which regulatory activities should be transparent, accountable, proportionate and consistent and targeted only at cases in which action is needed.  

This case was considered by Ofcom’s Executive Fairness Group.

Ofcom considered the Council’s complaint that it was deliberately misled by the programme makers as to the subject matter and purpose of the programme. In considering this element of the complaint Ofcom considered not just whether there was any evidence that the Council was misled but also whether this resulted in any specific unfairness to the Council in the programme as broadcast. It should be noted that Ofcom has no remit to consider complaints of unfair treatment about the making of the programme. Ofcom can only consider the programme makers’ actions during the making of a programme insofar as they might result in potential unfairness in the programme as broadcast.

Ofcom noted the Council’s claim that had it been aware of the true nature of the programme it would not have granted permission for the programme makers to film in its CCTV control room.

It was clear from the written submissions before Ofcom that the Council believed that it had been deliberately misled about the nature of the programme. It was equally clear from the written submissions that the programme makers did not believe that they had misled the Council.

In these circumstances, Ofcom examined all the relevant material available to it in order to determine whether or not, on the basis of that material, the programme makers had dealt with the Council in a manner which was consistent with their obligation to avoid unfairness to them.

From the outset broadcasters should ensure that programme makers understand the need to be straightforward and fair in their dealings with potential participants and contributors. Contributors should be given a clear explanation of why they were contacted by the programme makers; told what the programme is about and the nature of the contribution they are required to make; and where possible, they should be informed about the nature of other likely contributions. The presumption is that taking these measures is likely to result in the consent that is given being ‘informed consent’ and it is only fair to withhold this information where it is justified in the public interest or under other provisions of the Code.

Ofcom examined the accounts given by the Council and Channel 4 about the pre-transmission contacts between the Council (that is, Mr Shirley) and the programme makers (including the release form signed by Mr Shirley) which would have been likely to have provided the Council with an indication of the likely nature and content of the programme. Ofcom considered the following:

Ofcom acknowledged that the programme makers told the Council that the programme was about good and bad places to live in the UK; that they were particularly interested in discussing crime; and that they wanted to film the CCTV control room because Mansfield had scored particularly poorly in the analysis of crime statistics and wanted to show the efforts was making in tackling the problem of crime in the area. The programme makers also told Mr Shirley that there would be a comparison of what type of house £180,000 would buy in various parts of the UK . Ofcom considered that this information did not in itself necessarily equate with the presentation of Mansfield as the one of the worst places to live in the UK.

Ofcom noted that the only information included in the release form which related to the programme’s nature was the programme’s working title “Postcodes”. Ofcom was not persuaded that this in itself was sufficient to provide the Council with a clear understanding of the programme’s nature and content. In Ofcom’s view, it was reasonable for the Council to have understood from this that the programme would be predominately about comparing property prices in towns and cities across the UK .

Ofcom accepted that changes from a working title to a final programme title are conventional practice. However, programme makers must be aware of the need to ensure that participants are m ade aware of any significant changes to the programme as it develops which might reasonably affect their original consent to participate, and which might cause material unfairness. In this case Ofcom considered that the working title and the final title at the time of broadcast were significantly different in their meaning. Ofcom considered that that it would have been preferable if the programme makers had informed the Council of the final title before transmission as this was likely to have provided it with a clearer understanding of the nature and purpose of the programme.

In all the circumstances, Ofcom was not satisfied that the programme makers had provided the Council with sufficient clear information about the actual nature and purpose of the programme when securing permission to film inside the CCTV control room.

Ofcom next considered the content of the programme itself in order to determine whether the programme makers’ failure to provide sufficiently clear information about the actual nature and purpose of the programme was likely to have resulted in unfairness to the Council in the programme as broadcast. Ofcom was not persuaded that the Council was treated unfairly in the programme as broadcast. In reaching this decision Ofcom took account of the following:

The Council had not complained to Ofcom about the programme’s presentation of Mansfield as the sixth worst place to live. In that sense the Council was not suggesting that the programme’s presentation of Mansfield was materially misleading or unfair.

The inclusion of the footage did not impact on the ranking of Mansfield among the worst places to live and would not therefore have materially affected viewers understanding of Mansfield in a way that was unfair to the Council.

The footage of the CCTV control room was used in the programme to illustrate the steps taken by the Council to tackle street crime and was represented as positive action by the Council. The commentary that accompanied the footage indicated that the CCTV cameras contributed to “four arrests a day”.

In all the circumstances, Ofcom considered that the programme’s presentation of Mansfield in the programme as broadcast was unlikely to have materially affected viewers’ understanding of Mansfield in a way that was unfair to the Council.

Accordingly, the complaint of unjust and unfair treatment was not upheld.

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Complaint by Mr Martin Thomas
West Eye View: Scare in the Community, ITV1 (West), 15 October 2004

Summary: Mr Martin Thomas complained that he, and his company NBSA Projects Ltd (“NBSA”), were treated unfairly in an edition of the ITV West current affairs programme West Eye View which featured Mr Thomas and NBSA. Mr Thomas also complained that his privacy was unwarrantably infringed in the making and broadcast of the programme.

Mr Thomas complained that the programme (which investigated care homes run by Mr Thomas in the Lockleaze area of Bristol ) portrayed both him and NBSA unfairly; included the unfounded allegations of service users and neighbours; and included interviews with a local councillor and the local MP; which were unfair both to him and NBSA. Mr Thomas also complained that his property was filmed and broadcast without his consent, resulting in an unwarranted infringement of his privacy. ITV responded that the programme’s portrayal of Mr Thomas was fair and accurate; all allegations were well-founded; all the interviews fair and well-evidenced by other material; and that Mr Thomas had been offered a right of reply by the programme makers which he had chosen not to exercise. ITV further responded that the recording, and broadcast, of footage at Mr Thomas’s property was justified by the highest public interest in the story and did not unwarrantably infringe Mr Thomas’s privacy.

Ofcom found that the programme’s overall portrayal of Mr Thomas and NBSA was fair and well supported by documentation and other material. Ofcom found unfairness in relation to only one aspect of Mr Thomas’s complaint, the claim that he had failed to obtain planning permission for building works. Ofcom noted that Mr Thomas had failed either to exercise a right of reply offered by the programme makers, or to explain to the programme makers why he considered he could not exercise it, on aspects of the programme about which he complained. Moreover, the contributions to the programme from service users, neighbours, the local councillor and MP were not found to be unfair as they were both relevant to the issues under consideration and well supported by other material. Finally, Ofcom found that the footage recorded at Mr Thomas’s property, and broadcast in the programme, did not infringe Mr Thomas’s privacy, unwarrantably or otherwise.

Introduction

This edition of West Eye View, entitled Scare in the Community, investigated “care in the community lodgings” providing accommodation and support for vulnerable adults, run by Mr Martin Thomas, and his company NBSA Projects Ltd (“NBSA”), in the Lockleaze area of Bristol. The programme updated Barely Serious, a previous ITV West investigation into the same subject, broadcast in October 2003.

The programme alleged that Mr Thomas’s lodgings were badly run, leaving the service users unsupported and local residents frustrated. The programme investigated the amounts that Mr Thomas was charging Bristol City Council for the provision of support and accommodation for service users, by comparison with what the programme claimed was the poor standard of accommodation and support provided. The programme included secret filming of an NBSA tenant recovering from alcoholism, and another on strong medication, going to a pub with their support worker. The programme also included video footage recorded by one tenant’s mother of her son’s NBSA accommodation, which the programme stated “appalled” her. The programme featured interviews with the local MP, local councillor, service users, local residents and Mr Thomas’s former partner. Mr Thomas’s premises were filmed and an attempt was made to conduct a ‘doorstep’ interview with his father, footage from which was included in the programme. Mr Thomas’s personal background was examined and the programme concluded by stating that Bristol City Council had served notice to end Mr Thomas’s contract with them.

Mr Thomas, who appeared in footage broadcast in the programme and was discussed throughout, complained that both he and his company, NBSA, were treated unfairly in the programme. Mr Thomas also complained that his privacy was unwarrantably infringed in both the making and broadcast of the programme.

Complaint

Mr Thomas’s case

In summary, Mr Thomas complained that he was treated unfairly in that:

a) The programme was sensationalist and did not present a fair representation of either Mr Thomas or NBSA. The programme made both Mr Thomas and NBSA appear uncaring and financially exploitative:

1. The programme’s commentary included the allegation that NBSA was not properly run which was incorrect and therefore unfair to Mr Thomas and NBSA.
2. The commentary stated that local residents used graffiti to try to warn Mr Thomas off further expansion of his business. However this was unfair to Mr Thomas as the programme did not explain the full extent of the threats against him: £20,000 damage to one NBSA property; personal threats to kill Martin Thomas and injure his family; and, the slashing of car tyres.
3. The programme included secret filming of a pub outing (by service users and an NBSA support worker). This was unfair to Mr Thomas and NBSA as the filming was purposefully, and unfairly, set up and furthermore a service user (‘Barry’) was paid for going to the pub.
4. The programme’s commentary stated that NBSA invoiced for rents well above the local average. This was unfair to Mr Thomas and NBSA since in fact NBSA complied with rents set by the Rent Service. The programme’s commentary further stated that NBSA invoiced for eighteen hours of weekly communal cleaning per house which was untrue; and the commentary stated that NBSA invoices were paid by Bristol City Council with only minor amendments, when in fact there were major amendments.
5. The Keyring agency was contrasted with NBSA and shown as one with monitoring systems in place. This was unfair to Mr Thomas and NBSA. In fact NBSA also has a full set of such procedures in place.
6. The mother of a service user, Kevin Rossiter, commented adversely on the state of his NBSA accommodation. This was unfair to Mr Thomas and NBSA since in fact work was being carried out and the service user had refused to move into temporary accommodation. She commented on the lack of TV and central heating whe