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Broadcast Bulletin Issue number 85 - 21|05|07

Standards Cases

In Breach

Naughty Nurse
Turn On TV, 14 September 2006, 13:00-16:00 and 15 September 2006, 15:40

Introduction

Turn On TV is an unencrypted channel, situated in the adult section of the Sky EPG, broadcasting programming based on premium rate adult chat services.

In June and September 2006, Ofcom wrote to broadcasters who provide such services due to serious concerns about their compliance with the Broadcasting Code (“the Code”). In particular, we were concerned about the degree of sexual content on these channels (both before and after the 21:00 watershed) and the separation of advertising from programme content. Following these letters, we monitored the output of the services.

On 14 September 2006, we monitored a programme entitled Naughty Nurse on Turn On TV between 13:00 and 16:00. This programme featured female presenters, dressed provocatively as nurses, encouraging viewers to call them. Investigation of this telephone service by Ofcom revealed that callers were given the option of connecting to an on-screen or off-screen ‘nurse’. Connection to an off-screen ‘nurse’ resulted in an explicit live conversation of a sexual nature.

During monitoring of Naughty Nurse on 15 September 2006, one of the presenters could be seen engaged in a call. While the presenter’s microphone was not on, she could be overheard saying “Oooh, baby fuck me” and moaning in a sexual manner.

We asked the broadcaster to comment on the suitability of the content for broadcast before the watershed on an unencrypted channel in respect of the following Code Rules:

1.2 (reasonable steps to protect the under eighteens);
1.3 (appropriate scheduling to protect children);
1.17 (sexual behaviour should be appropriately limited);
2.1 (generally accepted standards); and,
2.3 (offensive material must be justified by the context).

Response

Turn On TV responded stating that Naughty Nurse was not an adult show but was designed to be a “fun, flirtatious programme, which viewers could call in and chat to the nurse”. Viewers heard the initial section of most calls and, where appropriate, the presenter gave a précis of the conversation that had taken place. The broadcaster said that it did not allow staff to solicit and/or encourage adult type conversations during daytime programming and stressed that the telephone number shown on screen was not “in anyway an adult sex line”. The broadcaster acknowledged however that a number of telephone calls of an adult sexual nature had taken place but these were isolated and unconnected incidents.

The first incident (14 September 2006) related to the provision of calls to “off-screen babes”. These calls were handled by a service provider, who was meant to be providing non-adult chat via their call centre. Turn On TV said that it first became aware that there was a problem with the provision of ‘off-screen’ calls as a result of monitoring by the premium rate service regulator, ICSTIS, and had subsequently terminated its relationship with the service provider in question.

The call overheard during the programme on 15 September 2006 originated from the broadcaster’s website, which promoted an adult premium rate number. The broadcaster believed that a technical error had occurred and the sound levels on the presenter’s lapel mike were not muted completely.

Turn On TV said it took compliance very seriously and when it was notified of the complaints, it changed the name of the programme on the basis that Naughty Nurse could give an incorrect impression about the nature of the service promoted.

The broadcaster said it had also instigated the following measures in October and November 2006 to strengthen its compliance procedures:

drafted an internal compliance guide (a copy of which it provided to Ofcom);
trained all staff;
installed new equipment to ensure all on screen calls are monitored live;
handled and managed all calls generated by its programmes – all calls were now routed only to the broadcasters own fully trained call handlers ;
no longer allowed calls promoted on other media to be routed to on-screen presenters; and
recorded and monitored calls regularly to ensure standards are maintained.

In addition, the broadcaster said that all new formats and amendments to existing programming would be discussed with the broadcaster’s compliance officer prior to being aired.

Decision

It is clear from the content of the call made by a member of Ofcom staff to the number broadcast on 14 September 2006 that the premium rate service promoted during daytime programming was for an adult sexual service.

Additionally, the actions and language used by the presenter on 15 September 2007 were unacceptable for broadcast during daytime programming and also suggested that the number promoted was for an adult sexual service.

We therefore consider that the programmes breached Rules 1.2, 1.3, 1.17, 2.1 and 2.3 of the Code on the following grounds:

the clothing and posing of the presenter was overtly sexually provocative and the sexual behaviour was therefore not appropriately limited;
the broadcaster had failed to take all reasonable steps to protect children in that this content (in terms of both the appearance and actions of the presenters and the promotion of adult services) was inappropriately scheduled pre-watershed; and
the language used by the presenter was unacceptable and offensive for the time of broadcast and not justified by the context.

Ofcom took Turn On TV’s failure to ensure that both the content of its programmes and the nature of the services it promoted were suitable for broadcast before the watershed very seriously. We were particularly concerned that these breaches occurred following our letters of June and September 2006 with their very clear warnings. In view of the gravity of the issue, Ofcom commenced the formal process of the consideration of a statutory sanction.

We also continued to monitor the channel’s daytime output to ensure that the broadcaster’s compliance arrangements had taken effect. This demonstrated that the broadcaster had improved compliance and the output monitored did not feature any sexual material before the watershed. Further, random monitoring of the PRS number promoted resulted in connection to the on-screen presenter and discussion that contained no overtly sexual content. In view of the extensive steps taken by the broadcaster to improve compliance on the channel, the assurances it has given, and our current assessment of the channel’s compliance, we decided on balance not to pursue the consideration of a sanction in this case.

However, we put the Licensee on notice that should there be any future breaches of the Code of a similar nature, Ofcom will not hesitate to consider the imposition of statutory sanctions (which may include a fine and/or revocation of the licence). Such considerations would take into account a licensee’s compliance record.

Breach of Rules 1.2, 1.3, 1.17, 2.1 and 2.3

World in Focus and R Mornings
Revelation TV, various dates and times of transmission

Introduction

Revelation TV is a religious channel that often features live phone-in programmes and discussions which from time to time deal with controversial and topical issues. Ofcom received seven complaints from viewers who alleged that some presenters and contributors during some editions of the programmes World in Focus and R Mornings used offensive language when discussing homosexuals, homosexual behaviour and immigrants.

In an edition of the programme World in Focus a panel of three contributors criticised the newly implemented Equality Act and, in particular, the associated Sexual Orientation Regulations, which they alleged would force schools to teach children about homosexuality as part of the national curriculum. Three viewers complained that the discussion was wholly against the new Regulations, with no balance or opposing points of view were given, and that some of the remarks were disparaging and offensive to the gay community.

Four other viewers complained of offensive comments made by Howard Conder, the owner and presenter of Revelation TV, and some of his guests concerning homosexuality and also immigrants in various other programmes.

Ofcom asked Revelation TV to comment with regard to the following Rules in the Broadcasting Code (“the Code”): 2.3 (generally accepted standards) and 5.5 (due impartiality on matters of political or industrial controversy and matters relating to current public policy).

Response

Revelation TV said that the programmes complained of were broadcast live and, as a consequence, there were no “time-delays” on them, which would have allowed for editing of any offensive comments made. It aimed to provide due impartiality by reading out comments from emails sent by members of the public and by including comments from callers put through to the studio.

Revelation TV also pointed out that the programmes complained of were one hour long. In its view, it was unfair to pick a sentence from a programme of that length (i.e. what were alleged to be homophobic comments) when the comments themselves were not indicative of a programme’s overall content.

However, Revelation TV acknowledged that there were a number of areas where it had not fully understood how to implement the Code. As a result, following Ofcom’s intervention, it immediately applied a number of measures that would enable it to adhere to Ofcom regulations correctly in the future, for example:

briefing all presenters thoroughly on the Code’s requirements;
pro-actively encouraging the participation of other groups or interested parties with a different point of view in the station’s programmes;
ensuring where appropriate that a range of opinions would be reflected when discussing controversial topics;
ensuring that controversial views which are expressed in their programmes will be included in a way that is compliant with the Rules on due impartiality;
creating a compliance manual for all staff and attending future Ofcom compliance workshops; and
training call-centre staff to ensure that immediate remedial action is taken during live phone-ins as and when required.

Decision

Ofcom understands that the issue of homosexuality is a contentious one both within and outside religious communities, and that a number of opposing views are held. The expression of such sincerely-held and controversial views may give rise to the potential for offence.

It is therefore important that, where there is the potential for offence, broadcasters must comply with Rule 2.3 of the Code which states that: “…in applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context. Such material may include but is not limited to, offensive language…discriminatory language…on the grounds of age, disability, gender, race, religion, beliefs and sexual orientation”.

Revelation TV is free to broadcast the views of its presenters and contributors on issues concerning homosexuality, but it must ensure that, where such views are expressed in a way which may cause offence, they are justified by the context. Revelation TV now understands fully these obligations under the Code.

Ofcom acknowledges the right of Revelation TV to exercise freedom of expression. This right is however subject to the restrictions set out in Ofcom’s Broadcasting Code. For example, where a matter of political controversy or a matter of current public policy is being debated, the broadcasters must ensure that due impartiality is maintained in accordance with Rule 5.5.

The issue of the treatment of homosexuality (in relation to the Equality Act and the Sexual Orientation Regulations) was a matter of political controversy and/or matter relating to current public policy at the time it was discussed on Revelation TV. Due impartiality was therefore required. The discussions of the topic on the channel however did not include any representation at all of alternative views. The content therefore breached Rule 5.5.

We note that Revelation TV has acknowledged its failures of compliance and welcome the various measures it has implemented to ensure no recurrence; in particular ensuring alternative views are represented on air when matters of political or industrial controversy and matters relating to current public policy are dealt with. Ofcom has sampled the channel’s programming since these measures were introduced and there has been no evidence of any further potential breaches of the Code. However, there was a breach recorded against Revelation TV, regarding similar compliance failures (Broadcast Bulletin 28, 28 June 2004). The broadcaster is therefore put on notice that any further similar breaches of the Code are likely to result in Ofcom considering the imposition of a statutory sanction.

Breach of Rules 2.3 and 5.5

Insider
TV3, 14 September 2006, 22:00

Introduction

TV3 is a Swedish language channel operated by Viasat Broadcasting UK Ltd.

Insider is a well known current affairs programme on the channel that reports on topical issues of interest to a Swedish audience.

A viewer complained that this edition of the programme was aimed against the then current government by trying to influence the Swedish general elections held three days later. As a result of the election the minority Social Democratic-led government was defeated by an alliance of centre right parties headed by the Moderate Party.

This programme investigated and debated the level of taxes and benefits in Sweden and transparency about, and accountability for, how the money raised by taxes is spent. The programme included an abridged version of a documentary by the film-maker, Martin Borgs, on this subject entitled One Thousand Two Hundred Billion. This was followed by a studio discussion between Mr Borgs and the Swedish commentator, Göran Hägg .

After viewing the programme Ofcom asked Viasat to comment in relation to the Rules of the Broadcasting Code (“the Code”) including Rule 5.12 (due impartiality on major matters of political controversy) and Rule 6.1 (due impartiality in coverage of elections).

Response

Rule 5.12 (significant views to be included when dealing with ‘major matters’)

The broadcaster pointed out that this Insider programme was part of a series of three programmes broadcast over the three-week period immediately prior to the Swedish general election. The other two programmes were Småpartier (‘small parties on their way up’) and Sverige demokraterna which was an examination of the rise of the right wing Swedish Democrat party. Referring to the edition of 14 September 2006, Viasat pointed out that various politicians and members of the public were given an invitation to comment on matters featured in the programme. The channel argued alternative viewpoints were therefore adequately represented, saying that these were particularly evident from the material which featured politicians declining the chance to comment after being phoned and given the opportunity to respond.

The channel also pointed to the studio discussion in which Göran Hägg, who the channel described as a prominent Swedish writer and a well known sympathiser of the then governing Social Democrats, gave his opinion on the issues addressed in the programme. Viasat was confident that, in light of the fact that so many parties were asked to participate, all of these issues were dealt with impartially as required by the Code.

Rule 6.1 (elections to be covered with due impartiality)

The channel said that the Insider programme of 14 September 2006 focused on the Swedish tax system and not per se on the Social Democratic party or supporters of the government. Throughout the programme it was clear that it was the taxes paid by Swedish citizens that were the subject of the programme and specifically the issues regarding the allocation and spending of money raised by taxation.

As regards providing a wide range of views, the broadcaster pointed to a sequence in the Insider programme where the Moderate Party (the then main opposition party in Sweden) was questioned; and the studio discussion in which Göran Hägg was asked to give his alternative viewpoint. The broadcaster also pointed out that because the programme was aired three days before the Swedish elections, all the members and representatives of the Social Democrat party who were asked to participate in the programme said they were unable to do so because of the forthcoming elections.

Decision

Rule 5.12

The taxation and spending policies of a government – especially when discussed in the week before a general election – are clearly ‘major matters’ of political or industrial controversy under Rule 5.12. In introducing the abridged version of the One Thousand Two Hundred Billion documentary by Martin Borgs, the presenter of the Insider programme himself stated: “It’s controversial, of course, and a lot of it is related to the coming general election”. The broadcaster was therefore required, under the Code, to include an appropriately wide range of significant views and give them due weight either in the programme on 14 September 2006 or in clearly linked and timely programmes. It was clear to Ofcom from the Insider programme as transmitted that the broadcaster had not included a wide range of views.

The programme of 14 September 2006 dealt in a critical way with the taxation and spending policies of the then government. Ofcom notes that the government was invited to put its position on the policies discussed in the programme. However, to issue such an invitation, in itself, is not sufficient to satisfy the due impartiality requirements of Rule 5.12. The Rule demands that a wide range of significant views be included in the programme and given due weight. These significant views must be included in the programme or in a clearly linked programme in an appropriate way.

The abridged version of the One Thousand Two Hundred Billion documentary that was included in this edition of Insider either named, or included very brief clips of filmed interviews with, 18 politicians. Of these 18, 16 were politicians who were members of the then Swedish cabinet, members of the governing Social Democratic party or members of parties who were politically allied to the then government. Where a politician was simply named, it was not in the context of summarising his views on the taxation and spending policy of the then government. There were also brief clips of interviews with politicians in, or linked to, the government e.g. Jörgen Andersson (former director-general of the Social Democrats), and Johan Öhrn, political secretary of the Social Democrats. Again, however, the filmed comments did not address the taxation and spending policies of the government. For example, in Mr Andersson’s case, in the clip used he was simply refusing to comment on his employment position; and the clips of Johan Öhrn were passing on information to Martin Borgs about who he should speak to concerning certain allegations. To simply name a politician or make a brief reference to them did not therefore ensure that a wide range of significant views on the taxation, benefits and spending policies of the then government were included or that such views were given due weight in the Insider programme. Nor were the views of the then government on this major matter of political controversy summarised elsewhere, for example in commentary. The due impartiality requirement of Rule 5.12 was therefore not satisfied.

The broadcaster argued that the comments of Göran Hägg during the studio discussion which followed the abridged version of the One Thousand Two Hundred Billion documentary amounted to an alternative view. Ofcom does not consider this to be the case: an examination of what Mr Hägg said shows that in fact he was broadly in agreement with a number of the views of Martin Borgs contained in the documentary.

The channel also suggested that the 14 September 2006 edition of Insider should be viewed alongside two other linked programmes already referred to, Småpartier and Sverige demokraterna, which contained a sufficiently wide breadth of Swedish opinion to satisfy the Code requirements on due impartiality. Ofcom notes that these two programmes did provide a range of views and afforded a platform to a varied spectrum of Swedish political opinion on many issues. However, crucially, neither of these programmes featured views of the then government about its taxation and benefit policies which were critically examined in the programme of 14 September 2006. There was thus no due impartiality provided through these programmes on the matter of major political controversy which was the subject of the 14 September programme.

For the above reasons, Ofcom has determined there was a breach of Rule 5.12.

Rule 6.1

The Code specifies that the Rules on due impartiality apply to the coverage of elections (Rule 6.1). This is a recognition of the responsibility of broadcasters – at the time of elections – not to confer any unfair electoral advantage on particular candidates or parties through their programming. Ofcom was particularly concerned that the abridged version of the documentary One Thousand Two Hundred Billion shown in this edition of the Insider programme linked specific policies in a personal manner with individuals in government who featured prominently in a general election campaign then entering its final stages in Sweden. Ofcom does not accept that the programme could reasonably be described as focussed on the Swedish tax and benefits system and public spending only in a general way so as not to constitute a ‘major matter’. For the reasons explained above, Ofcom does not consider that the programme of 14 September 2006, or any linked programmes, provided an appropriately wide range of significant views as required. The broadcaster also therefore breached Rule 6.1.

Breach of Rules 5.12 and 6.1

Y Byd ar Bedwar
S4C, 14 June 2005, 20:30

Introduction

This edition of the investigative current affairs series, Y Byd ar Bedwar, concerned a dispute over grazing rights on property in a North Wales valley. The dispute had been taken up by the Welsh pressure group, Cymuned, which campaigns for the rights of Welsh speaking communities. The disagreement arose between a local farmer and the owner of the land, Susan Holland, and her partner, Marc Asquith. The programme explained that generations of the local farmer’s family had farmed this land.

The Ofcom Fairness Committee upheld complaints by Mrs Holland and Mr Asquith of unfair treatment and unwarranted infringement of privacy arising from the programme. This finding was published in Broadcast Bulletin 75 on 11 December 2006, and is available at http://www.ofcom.org.uk/tv/obb/prog_cb/obb75/issue75.pdf.

However, the complainants were also concerned that the programme as a whole had “exhibited bias”. This complaint concerns the requirement for broadcasters to maintain 'due impartiality' on matters of political or industrial controversy and matters relating to current public policy. In part, the programme examined the influx of English people to live in Wales as well as the specific dispute concerning the owners and a local farmer's grazing rights. The programme was therefore not simply limited to a treatment of the differences between urban and rural ways of life but looked as a whole at the issue of inward migration in to Wales and the work of the pressure group, Cymuned.

In view of the circumstances of this case, Ofcom considered the issues raised under due impartiality only after the Fairness Committee had adjudicated on the fairness and privacy complaint.

The relevant Code applicable to this programme was that of the Independent Television Commission (ITC). This requires that “due impartiality is preserved on the part of the person providing the service as respects matters of political or industrial controversy or relating to current public policy”. The term ‘due’ should be interpreted as meaning adequate or appropriate to the nature of the subject and the type of programme.

S4C was asked to consider how the programme complied with the requirement for due impartiality in relation to the issue of 'colonisation', the influx of English people into Wales, and its impact on the Welsh language, housing and land use in Wales in light of Section 3.1 of the ITC Code.

Response

First, S4C suggested that the question asked in the opening titles was, in fact, misleading. This stated:

“Tonight, is the organisation Cymuned defending the Welsh people or enraging incomers?”

The broadcaster claimed the main aim of the programme was to examine and illuminate many different aspects of the current situation in rural Wales and that the subject of the programme was not the political aspects of the influx of English people. S4C explained that Cymuned is an organisation best known for attempting to stop the influx of English people into Welsh speaking areas and for battling against the effects of this so-called ‘colonisation’. But S4C added that there was in fact only one reference to 'colonisation' throughout the programme (in an interview with the Chief Executive of Cymuned).

However, S4C acknowledged that after further consideration, the programme would have benefited from greater objectivity by avoiding commentary that made too many references to the views of the local farmer in the grazing dispute. S4C therefore agreed that some viewers could interpret the programme as a debate on the influx of non-Welsh speaking people into Wales i.e. about a matter of political controversy or relating to current public policy. In this respect the broadcaster accepted that due impartiality was not maintained within the programme itself, nor was it maintained in relation to the subject of the influx of people into Wales across the series as a whole.

S4C explained that as a topical current affairs programme, the production deadlines for Y Byd ar Bedwar are often very tight. Despite dealing with challenging and difficult issues, S4C argued that the track record of Y Byd ar Bedwar regarding compliance had been exceptionally good.

In this case, S4C did not become aware that there could problems with the content of this programme until late in the afternoon on the day of the broadcast. The production team took legal advice and made some changes to the programme, later informing S4C that it had been cleared by ITV Wales' solicitor for broadcast. However, the production team was not in a position to provide S4C with a recording of the programme until an hour before transmission. After consideration of all the circumstances, S4C’s Director of Programmes, having received advice from S4C’s solicitors, decided to rely on ITV Wales’ legal viewpoint and gave approval for the programme to be broadcast.

Decision

Ofcom viewed the programme carefully and concluded that it did deal with a matter of political controversy or relating to current public policy. Although the broadcast did not aim to focus specifically on the controversial issue of the influx of English people into Welsh speaking parts of Wales and the effects of this influx, the programme did contain the local farmer’s views on this controversial issue. Further, these views were then repeated in the programme’s commentary. There was therefore a requirement for due impartiality as regards the treatment of this subject. Alternative views were not however adequately included either in this programme or the series of programmes taken as a whole. The programme was therefore in breach of Section 3.1 of the ITC Code.

S4C has accepted that due impartiality was not preserved in this programme, nor across the series as a whole. The broadcaster was responsible for ensuring this programme complied with the due impartiality requirements in force at the time of broadcast. Ofcom is concerned that a breach of the Code occurred because tight deadlines did not allow S4C adequate time to carry out its compliance procedures before transmission. The requirement that due impartiality is maintained in matters of political or industrial controversy or relating to current public policy is an important one and is specifically set out in legislation. Ofcom acknowledges that tight production deadlines are an intrinsic feature of topical current affairs programmes and therefore welcomes the fact that, in response to the acknowledged problems raised by this particular broadcast, S4C has now agreed a new set of tighter compliance guidelines with ITV Wales as part of the editorial brief for Y Byd ar Bedwar during 2007. Ofcom therefore accepts that the new guidelines and arrangements with ITV Wales should assist S4C, as the broadcaster, to ensure it meets its compliance obligations in this area.

Breach of Section 3.1 of the ITC Programme Code

Y Byd ar Bedwar
S4C, 14 Mehefin 2005, 20:30

Cyflwyniad

Roedd y rhifyn hwn o’r gyfres materion cyfoes ymchwiliol, Y Byd ar Bedwar, yn ymwneud ag anghydfod ynglŷn â hawliau pori ar eiddo mewn cwm yng Ngogledd Cymru. Roedd Cymuned, y grŵp pwyso Cymraeg sydd yn ymgyrchu dros hawliau cymunedau Cymraeg eu hiaith wedi mynd ar ôl mater yr anghydfod. Y rheswm dros yr anghydfod oedd anghytuno rhwng ffermwr lleol a pherchennog y tir, Susan Holland, a’i phartner, Marc Asquith. Roedd y rhaglen yn esbonio fod cenedlaethau o deulu’r ffermwr lleol wedi ffermio’r tir hwn.

Cynhaliodd Pwyllgor Tegwch Ofcom y cwynion gan Mrs Holland a Mr Asquith o driniaeth annheg a thorri anesgusodol ar breifatrwydd yn deillio o’r rhaglen. Cyhoeddwyd y canfyddiad hwn yn Broadcast Bulletin 75 ar 11 Rhagfyr 2006 ac mae ar gael yn http://www.ofcom.org.uk/tv/obb/prog_cb/obb75/issue75.pdf.

Ond roedd yr achwynwyr hefyd yn bryderus bod y rhaglen yn gyffredinol wedi ‘dangos rhagfarn’. Mae’r achwyniad hon yn ymwneud â gofynion darlledwyr i gynnal ‘didueddrwydd dyledus’ ar faterion o ddadl wleidyddol neu ddiwydiannol a materion yn ymwneud â pholisi cyhoeddus cyfredol. Yn rhannol, roedd y rhaglen yn archwilio i’r mewnfudiad o Saeson oedd yn dod i fyw i Gymru yn ogystal â’r anghydfod penodol yn ymwneud â’r perchnogion a hawliau pori ffermwr lleol. Nid oedd y rhaglen felly yn gyfyngedig yn unig i driniaeth am y gwahaniaeth rhwng ffyrdd trefol a gwledig o fyw, ond roedd yn edrych ar y pwnc o fewnfudo i Gymru a gwaith y grŵp pwyso, Cymuned.

Yng ngoleuni amgylchiadau’r achos hwn, ystyriodd Ofcom y materion a godwyd o dan ddidueddrwydd dyledus yn unig ar ôl i’r Pwyllgor Tegwch farnu ar yr achwyniad tegwch a phreifatrwydd.

Y Côd perthnasol oedd yn berthynol i’r rhaglen hon oedd Côd Comisiwn Teledu Annibynnol (ITC). Mae hwn yn ei gwneud yn ofynnol bod ‘didueddrwydd dyledus yn cael ei gadw ar ran y person sydd yn darparu’r gwasanaeth mewn perthynas â materion o ddadl wleidyddol neu ddiwydiannol neu yn berthynol i bolisi cyhoeddus cyfredol’. Dylid dehongli’r term ‘dyledus’ i olygu digonol neu briodol i natur y pwnc a’r math o raglen.

Gofynnwyd i S4C ystyried sut yr oedd y rhaglen yn cydymffurfio gyda’r gofyniad am ddidueddrwydd dyledus mewn perthynas â’r pwnc o ‘goloneiddio’, y mewnlifiad o Saeson i Gymru, a’i effaith ar yr iaith Gymraeg, tai a defnydd tir yng Nghymru yng ngoleuni Adran 3.1 o Gôd ITC.

Ymateb

I ddechrau, awgrymodd S4C fod y cwestiwn a ofynnwyd yn y teitlau agoriadol mewn gwirionedd yn gamarweiniol. Roedd hwn yn datgan:

“Heno, ydy’r mudiad Cymuned yn amddiffyn y Cymry neu yn gwylltio mewnfudwyr?”

Roedd y darlledwr yn hawlio mai prif nod y rhaglen oedd edrych ar, a rhoi goleuni ar y nifer o wahanol agweddau o’r sefyllfa gyfredol yng Nghymru wledig ac nad yr agweddau gwleidyddol o’r mewnlifiad o Saeson oedd pwnc y rhaglen. Esboniodd S4C bod Cymuned yn fudiad sydd yn fwyaf adnabyddus am geisio atal y mewnlifiad o Saeson i ardaloedd Cymraeg eu hiaith ac am frwydro yn erbyn effeithiau'r hyn a elwir yn ‘goloneiddio’. Ond ychwanegodd S4C mai dim ond un cyfeiriad a wnaethpwyd mewn gwirionedd at ‘goloneiddio’ yn y rhaglen (mewn cyfweliad gyda Phrif Weithredwr Cymuned).

Ond cydnabu S4C, ar ôl ystyriaeth bellach, y byddai’r rhaglen wedi elwa oddi wrth fwy o wrthrychedd trwy osgoi sylwebaeth oedd yn gwneud gormod o gyfeiriadau at farn y ffermwr lleol yn yr anghydfod pori. Cytunodd S4C felly y gallai rhai gwylwyr ddehongli’r rhaglen fel dadl am y mewnlifiad o bobl heb fod yn siaradwyr Cymraeg i Gymru h.y. am fater o ddadl wleidyddol neu yn berthynol i bolisi cyhoeddus cyfredol. Yn hyn o beth derbyniodd y darlledwr na chafodd didueddrwydd dyledus ei gynnal o fewn y rhaglen ei hun ac na chafodd ei gynnal mewn perthynas â phwnc mewnlifiad o bobl i Gymru ar draws y gyfres yn gyffredinol.

Esboniodd S4C, fel rhaglen materion cyfoes mae’r amserlenni cynhyrchu ar gyfer Y Byd ar Bedwar yn aml yn dynn iawn. Er gwaethaf gorfod delio gyda materion heriol ac anodd, roedd S4C yn dadlau fod gan Y Byd ar Bedwar enw eithriadol o dda o ran cydymffurfiad.

Yn yr achos hwn ni ddaeth S4C yn ymwybodol y gallai fod problemau gyda chynnwys y rhaglen hon tan yn hwyr yn y prynhawn ar ddiwrnod y darlledu. Derbyniodd y tîm cynhyrchu cyngor cyfreithiol a gwneud rhai newidiadau i’r rhaglen gan hysbysu S4C yn ddiweddarach ei bod wedi ei chlirio gan gyfreithiwr ITV Wales ar gyfer ei darlledu. Ond nid oedd y tîm cynhyrchu mewn sefyllfa i ddarparu recordiad o’r rhaglen i S4C tan un awr cyn y darllediad. Ar ôl ystyried yr holl amgylchiadau penderfynodd Cyfarwyddwr Rhaglenni S4C, ar ôl derbyn cyngor gan gyfreithwyr S4C, i ddibynnu ar safbwynt cyfreithiol ITV Wales a rhoi cymeradwyaeth i ddarlledu’r rhaglen.

Penderfyniad

Edrychodd Ofcom yn ofalus ar y rhaglen a daeth i’r casgliad ei bod yn delio â mater o ddadl wleidyddol neu yn berthynol i bolisi cyhoeddus cyfredol. Er nad oedd y darllediad yn bwriadu canolbwyntio yn benodol ar y mater dadleuol o fewnfudiad o Saeson i rannau Cymraeg eu hiaith o Gymru ac effeithiau’r mewnlifiad hwn, roedd y rhaglen yn cynnwys barn y ffermwr lleol ar y pwnc dadleuol hwn. Roedd gofyniad felly am ddidueddrwydd dyledus o ran triniaeth y pwnc hwn. Ni chafodd barn arall fodd bynnag eu cynnwys yn ddigonol yn y rhaglen hon nac yn y gyfres o’r rhaglenni yn gyffredinol. Roedd y rhaglen felly yn torri Adran 3.1 o Gôd ITC.

Mae S4C wedi derbyn na chafodd didueddrwydd dyledus ei gadw yn y rhaglen hon, nac ar draws y gyfres yn gyffredinol. Y darlledwr oedd yn gyfrifol am sicrhau bod y rhaglen hon yn cydymffurfio gyda’r gofynion didueddrwydd dyledus oedd mewn grym ar adeg darlledu. Mae Ofcom yn bryderus bod y Côd wedi’i dorri oherwydd nad oedd amserlenni tynn yn caniatáu amser digonol i S4C gyflawni ei weithdrefnau cydymffurfiad cyn darlledu. Mae’r gofyniad bod didueddrwydd dyledus yn cael ei gadw mewn materion o ddadl wleidyddol neu ddiwydiannol neu yn berthynol i bolisi cyhoeddus cyfoes yn un pwysig ac mae wedi ei nodi yn benodol mewn deddfwriaeth. Mae Ofcom yn cydnabod bod amserlenni cynhyrchu tynn yn nodwedd gynhenid o raglenni materion cyfoes ac mae felly yn croesawu’r ffaith bod S4C, mewn ymateb i’r problemau cydnabyddedig a godwyd gan y darllediad neilltuol hwn, bellach wedi cytuno i set newydd o ganllawiau cydymffurfiad tynnach gydag ITV Wales fel rhan o’r briff golygyddol ar gyfer Y Byd ar Bedwar yn ystod 2007. Mae Ofcom felly yn derbyn y dylai’r canllawiau a’r trefniadau newydd gydag ITV Wales gynorthwyo S4C fel darlledwr i sicrhau ei fod yn cwrdd â’i rwymedigaethau cydymffurfiad yn y maes hwn.

Torri Adran 3.1 o Gôd Rhaglen ITC (didueddrwydd dyledus)

Radio XL
15 September 2006, 11:30

Introduction

A homeopathic practitioner, who is a regular contributor on the station, provided information about gynaecological conditions, including infertility problems and how homeopathic medicine can help in certain circumstances. The predominant language used was Urdu, but the discussion also included a mixture of English and Gujarati.

We received a complaint from a listener who thought that the programme was, in fact, used to promote the contributor’s practice; that it was not made clear who the practitioner was and who he is regulated by. Further, he advertised his services to promote his infertility treatment and suggested that he could help with the selection of the sex of a baby.

We requested the broadcaster’s comments, under Section Two (Harm and Offence) and Section Ten (Commercial References) of the Broadcasting Code (“the Code”) with particular reference to the following Rules 2.1 (adequate protection for the public from harmful material), 10.2 (separation of advertising and programming), 10.3 (products and services must not be promoted in programmes), and 10.4 (no undue prominence for a product or service).

Response

The broadcaster considered that the programme complied with the Code. Radio XL said that the contributor, Mr Gorania, clearly stated that he is a homeopathic practitioner and that he had been practising homeopathy for 32 years. He merely described the physiology and biochemistry of the menstrual cycle and the detection of ovulation. He said that homeopathic treatments can help with infertility problems. He did not make any suggestion that he could influence the sex of a baby.

With regard to the promotion of the contributor’s practice, Radio XL said that Mr Gorania’s contribution is designed to provide information to their listeners and not a programme designed to promote his services, although they did concede that a proportion of the broadcast was used to mention his practice and telephone numbers. They regarded this as acceptable and reasoned that, as there may be listeners who need to have a more detailed history and examination of their condition, it was necessary to give his contact details. They confirmed that his practice was advertised on the station, but that advertisements for his services were broadcast in a separate programme from the one complained of.

Decision

We obtained a translation of the programme from an independent translation service, and sent a copy to the broadcaster.

From the translation, we noted that Mr Gorania did appear to confine his comments to explaining the physiology of ovulation and a woman’s optimum time to conceive. He also explained the array of issues that can be associated with an inability to conceive, including male fertility problems. The contributor said that homeopathic treatments could help, but only following a thorough consultation to establish a complete medical history. He made no claim that his treatment could influence the sex of a child. We therefore concluded that his remarks promoted homeopathic medicine as a route that could, in certain circumstances, be helpful and therefore this aspect of the broadcast was not harmful and not in breach of Rule 2.1.

The contributor’s practice and contact details were however promoted during the item:

“Callers will be pleased to hear that Dr Gorania is with us today - if you want to see him, he will be in Birmingham today. To make an appointment, please ring his mobile”.

Both his mobile and telephone number were given. Later in the programme further mention was made of his practice.

“Some people turn up without an appointment resulting in long queues, which often causes chaos. It is therefore requested that people telephone before coming. The lines are open from 10 am to 10 pm”.

Reference was also made to his head office in Luton.

One of the fundamental principles of the Code is that the advertising and programme elements of a broadcasting service must be clearly separated. Under the Code, it is not acceptable for a broadcaster to repeatedly promote or advertise a business or service within programming by providing telephone and contact details for a contributor. There were therefore breaches of Rules 10.2 and 10.3. In addition w e considered that the references to the contributor’s practice went beyond what was editorially justified under the Code and so were unduly prominent, leading to a breach of Rule 10.4.

Breach of Rules 10.2, 10.3 and 10.4

Graham and Louise Breakfast Show – Quiz of the Week
SGR Colchester, 27 November 2006, 08:00

Introduction

In this competition, a £50 Debenhams voucher was given away each day, with a grand prize of a £250 voucher and personal shopper experience. The prizes were provided by the local Debenhams store. In this programme, a 20 second recorded interview, between one of the presenters and a Debenhams personal shopping co-ordinator was played. This explained what the personal shopping service at the store involved. The contestant then had to answer a question based on the clip.

A listener queried the acceptability of the competition, suggesting that it amounted to a disguised advertisement for the store and that it was wrong to base a quiz question on a sponsor’s products.

Ofcom asked the broadcaster to comment in respect of Rules 9.5 (no sponsor influence on editorial independence), 9.6 (prohibition on promotional sponsor references within a programme) and 9.7 (clear identification of sponsored programmes) of the Broadcasting Code (“the Code”).

Response

GCap Media, which owns SGR Colchester, confirmed that the ‘Quiz of the Week' feature complained of had been sponsored by Debenhams.

It noted the impact of using the interview sequence (which discussed a service provided by Debenhams) as part of the quiz which, as a feature, was sponsored by Debenhams. It also confirmed that having reviewed the material, it fully appreciated Ofcom’s concerns about the content of the broadcast under Sections 9.5 - 9.7 of the Code. However, it assured us that at no point had the editorial independence of the programme compromised.

GCap explained that it had put together a comprehensive training and best practice guidelines scheme which was to be rolled out on a phased basis. The first, covering the sponsorship and promotions team at SGR Colchester itself, had now taken place. The original presenters of the programme had since left the station and their replacements had been fully briefed on the requirements of the Code. In addition, GCap had reviewed all sponsored programmes to ensure that the relationship with the sponsor was clear. The second phase of training would reach all programmers across the GCap group. The aim was to reduce the scope for any undue prominence issues and to increase awareness of where content features in sponsored programmes could give rise to problems in relation to the Broadcasting Code. The implementation of both phases was being led by senior management from the sponsorship and promotions commercial team with guidance from the group Programme Director.

GCap Media and SGR Colchester apologised for the Code breaches and stated that this had been an isolated and inadvertent event.

Decision

Notwithstanding the assurance given by GCap that the programme’s sponsor had not influenced the editorial content, the reference to the sponsor had clearly been promotional. In addition, the competition was sponsored and the identity of the sponsor had not been made clear. As such the programme item had been in breach of both Rules 9.6 and 9.7 respectively.

Ofcom also noted that in September 2006 a breach of Rule 9.6 had been recorded against the same station. Ofcom therefore considered whether further regulatory action was necessary. However, in light of the steps taken by the broadcaster to remedy the breaches, including an undertaking to put in place specific training along with a best practice guidelines scheme to ensure compliance in future, Ofcom decided further action was not necessary on this occasion.

Breach of Rules 9.6 and 9.7

Star Reports and Music To Make You Feel Good
Star Radio in Cambridge (Cambridge and Ely), 7 March 2006, 18:00 and 21 September 2006, 17:40

Introduction

Star Reports is a 15 minute extended news programme. The broadcast featured a pre-recorded introduction and interview with the Managing Director of an overseas property company. The presenter introduced the feature by saying: “If you dream of having a summer house in Spain or Florida, a Cambridgeshire company might be able to help you”. She then reported that the guest had come “…into the studio to tell us more about his company”, which was “there to help and make sure transactions are secure”. Subsequently, she asked: “But buying a house abroad isn’t really for people like us is it – it’s just for the really, really rich?” and “So how does the company work?”

The interviewee’s first comment was: “Make your existing bricks and mortar work for you”. He then spoke about his company’s services, covering the money guarantee it offered, property it had available (including price) and its inspection flights.

An employee of a rival company complained to Ofcom that the feature was a “glorified plug” and noted that the featured company was running a concurrent advertising campaign on the station. This matter was under investigation by Ofcom when another complaint which raised similar issues was received. Ofcom therefore decided to consider these two cases together.

The second complaint was about Music To Make You Feel Good, which featured an interview with an employee of a local garage. In the item, listeners were given full travel directions to the garage and the times of its launch event for a new car. It detailed important features of the car (such as the number of seats and amount of space) and also included details of a competition to be held by the garage at the event.

A listener complained that this item was presented as editorial, when it was “clearly an extended advertisement for the garage…”.

In both cases Ofcom was concerned about:

the possibility that the broadcaster had not maintained its independence of editorial control over programme content (Rule 10.1 of the Ofcom Broadcasting Code);
the apparent promotion of products and services in the programme (Rule 10.3);
the apparent undue prominence given to products and services in the programme (Rule 10.4); and
the possibility that product placement had taken place in the programme (Rule 10.5).

In each case, we therefore sought the broadcaster’s comments in respect of the above Rules of the Ofcom Broadcasting Code (“the Code”).

Response

Star Reports

Star Radio said that it had not benefited financially from the broadcast of the feature concerning overseas property. It said that the interview with the property company representative had been included to “add detail and colour”. The broadcaster provided full details of the property company’s separate but concurrent advertising campaign. It also said that this campaign had been pre-paid and that the advertiser had chosen subsequently not to renew the contract.

Star Radio believed that it was difficult to obtain relevant comment for the type of feature broadcast unless it was from “someone who does the job or has specialist knowledge of the subject”. The broadcaster claimed that discussing what the contributor does gives “credibility to their information”. However, it confirmed that, as a result of the complaint, it had reinforced the importance of compliance with the Code to its news team, a new News Editor had received full training and new guidelines had been implemented to avoid recurrence of similar output.

Music To Make You Feel Good

Star Radio felt that the editorial independence of the broadcast had not been compromised.

UKRD Group, which owns Star Radio, acknowledged that the presentation team at Star did not have as robust an understanding of compliance as the news team had acquired subsequent to the complaint concerning Star Reports. This had been a communications error. UKRD added that it had therefore met station management to emphasise the Code obligations they needed to follow.

UKRD informed Ofcom that it took its obligations seriously and that systems had now been put in place across the station, and indeed across the whole UKRD Group, to avoid recurrence. It assured us that there had been no deliberate intent to breach the Code. The Group also implemented a programme to educate UKRD programmers concerning compliance and sought Ofcom’s involvement in this process.

Decision

In each case Ofcom was satisfied that the material was broadcast as editorial output over which Star Radio had maintained independent editorial control. Nevertheless, each broadcast was, in Ofcom’s opinion, clearly promotional and there appeared to be no editorial justification for the detailed discussions of the featured companies’ products and services. Each broadcast therefore breached Rules 10.3 and 10.4 of the Code.

In the case of Star Reports the broadcast contained a clear and extended promotion of a current advertiser’s products and services within news programming (see Introduction for examples). Ofcom believed this to be a serious breach of the Code, occurring as it did in news programming.

While the issues raised in Music To Make You Feel Good took place outside news programming, it also concerned similar issues to Star Reports, involving the clear promotion of a local company and its product and services. The sort of details given by the interviewee, such as full travel directions to the garage and the times of its launch event for a new car (with further details), is not normally material that would be featured in editorial.

Given the similarities of the breaches, Ofcom was concerned that there appeared to be evidence of systemic compliance failure at Star Radio. Ofcom was therefore considering whether further regulatory action was necessary.

Given Ofcom’s concerns, the highest level of management at UKRD Group took extensive action to address its compliance failures. The Group acknowledged a lack of communications between Star Radio’s news and presentations teams. It also met with Star Radio management to ensure Star understood fully its obligations under the Code.

UKRD also provided evidence of its serious intent to avoid recurrence of similar Code breaches, not only at Star Radio but across all its stations, by the introduction of new compliance systems and training. Taken together, Ofcom concluded that these measures gave it sufficient comfort that what appeared to be systemic compliance failures had been addressed. However, Ofcom will take any further similar compliance failures extremely seriously.

Breach of Rules 10.3 and 10.4

Meridian Tonight
ITV1 (Meridian), 2 January 2007, 18:00

Introduction

A viewer complained about the inclusion of a competition in Meridian Tonight. The competition prize was £1000 of gift vouchers, which the news presenters told viewers could be:

“used at over 200 stores at the Bluewater shopping centre in Kent. You can bag a bargain from clothes to electronics, from toys to jewellery. There are 13000 free car parking spaces at Bluewater and now it’s open an extra hour on Saturdays – until 9pm”.

Ofcom sought the broadcaster’s comments on the references to the Bluewater shopping centre under Rule 10.11 of the Broadcasting Code (“the Code”) (references to brands within competitions must be brief and secondary).

Response

ITV acknowledged that the references were unacceptable and said that it very much regretted this incident.

ITV stated that following an Ofcom finding in October 2006 about a similar issue, ITV News took extensive action to avoid a recurrence. This included renewed training and a decision to sever links between a competition prize and other elements of a programme.

However, on the day in question an error arose because of a combination of factors. The news service was operating with a skeleton team and the offending script was produced by a production journalist very late in the day. The journalist clearly made a misjudgement and included information about the prize which went beyond basic information that would enable a viewer to make an entry decision. ITV said that unfortunately the script was put to air unchecked. The issue was recognised immediately on transmission and the script was rewritten for subsequent broadcast. ITV said it was confident from its inquiries that the issue would not have arisen on a “normal” day and that this was a regrettable mistake that was spotted immediately and remedial action promptly taken. ITV provided Ofcom with a recording of the revised competition, which was broadcast in subsequent editions of Meridian Tonight.

Decision

Rule 10.11 of the Code helps ensure that programmes are not, or are not seen to be, distorted for commercial purposes. This is particularly important for news programmes where the integrity of the editorial content is paramount.

While we accept that this appeared to be a genuine error and are reassured that ITV recognised and rectified the mistake immediately, we are concerned that this error arose despite Ofcom finding Meridian Tonight in breach of the Code in October 2006 for a similar matter. We consider that the prize description was overly promotional and, as such, the competition was in breach of Rule 10.11.

Breach of Rule 10.11

Not Upheld

Promotion of Sky Movies magazine
Sky One, 26 November 2006, 22:00

Introduction

Sky One promoted a new magazine called ‘Sky Movies’ during an episode of Lost on 26 November 2006. The promotional item appeared in promotional airtime (that is, airtime outside programmes that does not count towards advertising minutage). It was separated from the preceding advertisements by a Sky ident and appeared just before the sponsorship credits leading back into the programme.

A viewer queried the basis upon which the magazine was promoted.

We requested Sky’s comments, with reference to both Ofcom’s Cross-promotion Code and Section 10 of the Broadcasting Code.

The Cross-promotion Code allows a broadcaster to promote broadcasting-related services in promotional airtime, provided that it is not doing so in return for payment or other valuable consideration. The Cross-promotion Code states:

“Broadcasting-related services’ include all broadcasting activities licensable by Ofcom, for example television and radio services. They also include other services with a ‘broadcasting feel’, that is, services which deliver content similar to that delivered on a television or radio service. In addition, a website that provides content clearly and directly related to a Broadcasting-related Service may itself be a Broadcasting-related Service.”

The Rules in Section 10 of the Broadcasting Code seek to ensure that the independence of editorial control over programme content is maintained, that programmes are not distorted for commercial purposes and that advertising and editorial (programming) are clearly separated.

Rule 10.3 states: “Products and services must not be promoted in programmes. This rule does not apply to programme-related material”. Ofcom’s guidance makes clear that p rogramme-related material (“PRM”) may only be promoted in or around the relevant programme.

PRM is defined in the Code as: “…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”.

In contrast to PRM, a broadcasting-related service (“BRS”) is not programme-specific and may be promoted more flexibly within the broadcaster’s schedule, i.e. its promotion is not limited to around a particular programme.

Response

Sky advised that it had recently launched two new magazines for subscribers to its sports and movies channels. The promotional launch campaign comprising this promotion ran from 24 November to 3 December 2006 across various Sky channels, including Sky One.

Sky explained that both magazines were only provided to subscribers and were not available for sale.

Sky considered that the Sky Movies magazine was a BRS, which it was therefore able to cross-promote on its channels. It said that the magazine provided further information to subscribers about current and ‘up and coming’ movies on the Sky Movies channels, and included detailed listings information regarding those services.

The Cross-promotion Code says that “a website that provides content clearly and directly related to a Broadcasting-related Service may itself be a Broadcasting-related Service”. Sky’s view appeared to be that the magazine was analogous to such a website in that it provided content clearly and directly related to the Sky Movies channels, and that therefore it would be disproportionate and inconsistent were Ofcom to consider a website to be a BRS but not a magazine.

Sky also said that the promotion for the Sky Movies magazine was consistent with the principle set out in the Cross-promotion Code that: “cross-promotions on television … inform viewers of services that are likely to be of interest to them as viewers”.

Decision

It was clear that Sky had promoted the magazine on the basis that it was a BRS, rather than PRM. In any event, the magazine was clearly not derived from a particular programme and was therefore not capable of being promoted as PRM.

The Cross-promotion Code is intentionally not prescriptive as to what may comprise a BRS. As the Cross-promotion Code states, BRSs include “services with a ’broadcasting feel’, that is, services which deliver content similar to that delivered on a television or radio service”. By this, Ofcom had in mind content involving sound and/or moving images. In addition, Ofcom recognised in the Cross-promotion Code that “a website that provides content clearly and directly related to a Broadcasting-related Service may itself be a Broadcasting-related service”.

In a previous decision regarding another broadcaster’s promotion of a magazine in promotional airtime, Ofcom said:

“ Moreover, a broadcaster’s website may be considered to be a “broadcasting-related service” under Ofcom’s Cross-promotion Code…In contrast, a magazine is not a broadcasting-related service and therefore cannot be cross-promoted.”

However, Ofcom considers that there are significant and crucial differences between the two cases:

In the earlier case, the magazine being promoted was available to the general public for purchase from a wide range of retailers. In the current case, however, the Sky Movies magazine was only provided to Sky Movies subscribers and was not available to be purchased commercially, eg in newsagents or online. The magazine was provided alongside and as part of the Sky Movies subscription package; whilst a subscriber could opt not to receive the magazine, that would not change the cost of the combined package.
In the earlier case, the promotion contained a clear call to action, ie a selling message for the magazine. However, in the current case and bearing in mind that the magazine was provided to Sky Movies subscribers alongside and as part of their package, the promotion did not include a call to action.
In the earlier case, the magazine contained generic content about homes and lifestyles similar to that readily available in other publications; the content was not clearly and directly related to the television channel. However, in the current case we noted that most of the content of the magazine was clearly specific to the Sky Movies channels; it was in essence a listings magazine for those channels and had more of a ‘broadcasting feel’ than in the previous case.

In view of the above considerations, Ofcom has concluded that in the very exceptional circumstances of this particular case the Sky promotion was, in effect, a promotion for the Sky Movies channels. It was therefore not in breach of the Cross-promotion Code. However, broadcasters are reminded of Ofcom’s ruling in the earlier decision that “a magazine is not a broadcasting-related service and therefore cannot be cross-promoted.”

Not upheld

Footnotes:

4Homes magazine as promoted on Ch 4 and E4, Broadcast Bulletin 73 (13 November 2006)

Resolved

Top Gear
BBC Two, 16 July 2006, 20:00

Introduction

In this episode, Jeremy Clarkson invited a man in the studio audience to comment on a car the team were discussing. The audience member described the car as “gay”. Jeremy Clarkson repeated this word and went on to add “it’s a bit ginger beer”. Five viewers complained that the expressions used were offensive to homosexual people.

Rule 2.3 of the Broadcasting Code states that broadcasters “must ensure that material which may cause offence is justified by the context…”.

Response

Some viewers separately complained to the BBC about the same incident. The BBC, in its Editorial Complaints Unit (“ECU”) ruling published on 15 December 2006, concluded that:

“As Jeremy Clarkson supplemented the term “gay” with a phrase which is rhyming slang for “queer”, there was no doubt that it was being used in the sense of “homosexual”, and was capable of giving offence… in this instance there was no editorial purpose which would have served to justify the potential offence and the complaints were therefore upheld… the Executive Producer of Top Gear has reminded the presenters and the production team of the importance of avoiding derogatory references to sexual orientation”.

In response to a request from Ofcom, the BBC confirmed that it was content for the ECU ruling to stand as the Corporation’s formal comment on the complaints made to Ofcom.

Decision

Any use of the word “gay” which results in a negative portrayal of homosexual men and women can give rise to concern. Some in the homosexual community are sensitive to the word being used in a pejorative way, having seen adoption of the word as a means of referring to themselves and their community in a positive manner. To use it as a term of ridicule therefore runs the risk of giving offence.

However, there is evidence that for over the past thirty years or so a second meaning of the word has gained currency. The current edition of the Oxford English Dictionary (OED) states that in this second usage “gay” means foolish, stupid, and socially inappropriate, or disapproved of and lame. The Dictionary points to an original published use in 1978 of the word with this meaning, and states that this usage is slang and most common in the USA. The OED does not consider this meaning of the word to be offensive. The Dictionary does not set out the origins of this second meaning.

In Ofcom’s view there is not sufficient evidence to conclude that use of the word “gay” is necessarily and automatically intended to be, or is, offensive. Broadcasters’ right to freedom of expression should not be restricted without at least some objective evidence that the word in context was capable of causing offence.

In this edition of Top Gear, the presenter’s use of a Cockney rhyming phrase made clear he intended to give a particular meaning to the use of the word “gay” by the member of the audience, i.e. not to restrict its meaning simply to foolish or stupid, but clearly linking the reference to homosexual people. This, in Ofcom’s opinion, meant that the use of the word became capable of giving offence. In the context, there was no justification for using the word in this way. We note, however, that the BBC has taken steps to remind the production team and presenters of the importance of avoiding derogatory references to sexual orientation. In light of the ECU ruling and the BBC’s actions, we consider the matter resolved.

Ofcom wishes to remind broadcasters that, whilst there is a meaning of the word “gay” which may not be offensive in context, broadcasters should take care about when and how frequently it is used. This is particularly true for programming that may have a significant number of children watching or listening. It is possible for adults to be able to distinguish different uses of the word, but it is not clear that children - especially in the playground - are capable of doing so. Casual uses of “gay” as a word which could be regarded as offensive to homosexual people without careful thought as to context could potentially result in bullying.

Resolved

The Charlotte Church Show
Channel 4, 23 February 2007, 22:00

Introduction

The Charlotte Church Show is a late night topical comedy entertainment show. The programmes featured a sketch in which films were parodied. In each case, the host, Charlotte Church, was edited into the films so that it appeared that she was one of the characters. A strap line at the bottom of each clip named the film, credited the film studio responsible for it and gave information about the film’s release, e.g. “Dreamgirls in cinemas now”, “Little Miss Sunshine out now on DVD”.

Ofcom asked the broadcaster to comment on the inclusion of the strap lines under Rules 10.2 (separation of advertising and programming) and 10.3 of the Broadcasting Code (products and services must not be promoted in programmes).

Response

Channel 4 said that one of the editorial requirements of the programme was that it was topical and referred to current events, particularly in the entertainment industry (film, television, music, popular culture etc.). In this respect, it was important that the programme included references to material that was current and instantly recognisable by the viewer, such as recent film, television and music references.

In terms of the sketches, Channel 4 believed that the insertion of Charlotte Church into each of the film clips was in keeping with the irreverent style of the show and was both original and editorially justified. However, in terms of the inclusion of the strap lines, Channel 4 said that while it believed that simply acknowledging the title of each film and the film studio would have been satisfactory, it accepted that to also include the additional words “in cinemas now” and “out on DVD” could be regarded as advertising or promotion.

Channel 4 said that similar references to the strap lines were common in entertainment chat shows and magazine shows when, for example, a film was being reviewed on its theatrical or DVD release. However, although the films in each episode were used because they were relatively recent releases and therefore topical, Channel 4 accepted that the information included in the strap lines might possibly not have the same editorial justification as there would be if an actor who featured in those films was present on the Show. Channel 4 said it regretted that on this occasion such words were included without adequate editorial justification.

Regarding the measures the channel has taken to avoid such concerns in the future, Channel 4 said that prior to the commencement of the second series of the show, a lawyer from its Legal and Compliance department gave a presentation to the programme’s production team, including advice on commercial references within programmes. Also, in addition to reviewing scripts in advance and discussing with the Commissioning Editor and producers, a lawyer from the Legal and Compliance department now attended each recording of the show at the studio.

Channel 4 said it was unfortunate that the issue regarding the strap lines, which were added in post-production, was not picked up. Since the matter had been raised by Ofcom, the Channel has reiterated to the production company the importance of exercising care when including information to viewers which may infringe on the requirement to keep advertising and programme elements separate and not to promote products and services. This particular point would be highlighted in all future legal and compliance briefings and included in more detail in briefing notes. Further, Channel 4 said that the strap lines would be edited out of any future repeats of the programme.

Decision

We welcome Channel 4’s acknowledgement that the references to cinema and DVD release dates were not editorially justified in the context of a comedy sketch. We agree that the inclusion of this information in the sketches without sufficient editorial justification was likely to be viewed as promotional and therefore in breach of Rule 10.3.

In view of the steps taken by the broadcaster to avoid recurrence, we considered the matter resolved.

Resolved

Note to Broadcasters

New targets for Ofcom’s handling of complaints

To help ensure a faster and more efficient service to complainants, Ofcom has revised its internal targets for the time it takes to handle Standards and Fairness and Privacy complaints from the public. The changes were introduced as of 1 April 2007.

Standards

Our new target to complete ‘straightforward’ cases will be 30 working days. ‘Straightforward’ cases are those in which Ofcom does not need to contact the broadcaster to resolve the complaint.

Ofcom will aim to conclude 80% of its ‘complex’ investigations within 60 working days. ‘Complex’ cases are those which require investigation with the broadcaster. (Some of these cases, for instance those that lead to the imposition of statutory sanctions, inevitably take longer than the 60 days).

Fairness and Privacy

Fairness and Privacy complaints relate to the treatment of those directly affected by programmes and it is important that Ofcom provides an effective complaints handling service aimed at those who are seeking redress. Our new targets are designed to reflect this.

Ofcom aims to make a decision on whether a complaint is within remit (an Entertainment Decision) on all investigations within 20 working days of receipt of a completed complaint form.

We aim to provide our provisional decision in straightforward investigations within 80 working days. Straightforward cases are those complaints adjudicated upon by the Executive Fairness Group following one exchange of written statements or complaints resolved by way of ‘appropriate resolution’.

We aim to provide our provisional decision in complexinvestigations within 130 working days. Complex cases are those adjudicated upon by either the Executive Fairness Group or the Fairness Committee with two exchanges of written statements and/or a hearing.

Where either party requests a review of either an Entertainment or a Provisional Decision, we aim to resolve 80% of such requests within 30 working days.

Previously, in calculating these Key Performance Indicators (KPIs), Ofcom would extend the targets to take into account unforeseen delays, e.g. if a broadcaster delayed in sending Ofcom its formal comments on a complaint. From 1 April 2007, however, in order to provide the best service possible, Ofcom will no longer allow the KPIs to be extended.

We are therefore putting broadcasters on notice that with effect from the date of this Bulletin, Ofcom expects them to respect the deadlines set by Ofcom (as outlined in our published procedures) when carrying out an investigation. Ofcom will only accept extensions to deadlines where there are adequate and sufficient reasons for doing so. In all cases, Ofcom would expect to be informed as soon as possible.

Fairness and Privacy Cases

Not Upheld

Complaint by Mr Roger Croston on behalf of Dr Bruno Beger
Secret History: The Nazi Expedition, Channel 4, 12 July 2004

Summary: Ofcom has not upheld this complaint of unfair treatment in the broadcast of the programme.

Mr Croston complained that Dr Bruno Beger was treated unfairly in an edition of Secret History. The programme examined an expedition to Tibet in 1938 in which Dr Beger took part as the team’s anthropologist. The programme alleged that while the official goal of the expedition was scientific, its secret mission was to discover the “origins of the Aryan peoples” and “search for signs of a long-vanished master race”. The programme made a number of allegations concerning Dr Beger and in particular stated that: prior to the expedition Dr Beger had “drawn up criteria for forcible sterilisation in order to eliminate ‘unworthy life’”; that during World War II Dr Beger intended to study the skulls of Jewish Commissars of the Red Army shot by German soldiers; and, that in Auschwitz concentration camp he selected prisoners who were “sacrificed for the sake of scientific comparison” and put to death at the Natzweiler concentration camp. The programme stated that Dr Beger “received a three year prison sentence as ‘accomplice to 86 cases of murder’”.

Mr Croston complained that the allegations made about Dr Beger were unfair, and most serious were those concerning “forcible sterilisation” and the skulls of the Jewish Commissars; that the allegations in the programme adversely affected Dr Beger’s reputation; and, that he was not given an opportunity to respond to the allegations made.

Channel 4 responded that it wholly rejected any complaint that the programme was unfair in its treatment of Bruno Beger. It stated that Dr Beger’s reputation was not adversely affected and placed the programme’s allegations in the context of Dr Beger being a former SS officer and convicted war criminal. Channel 4 also responded that Bruno Beger was given an opportunity to contribute to the programme when it was originally made in Germany and in any event it questioned the necessity of giving Bruno Beger an opportunity to contribute to the programme given that his membership of the SS and his conviction as an accomplice to the murder of Jewish people during the war were matters of public record.

Ofcom found that the allegations made in the programme did not result in unfairness to Dr Beger, and, given the established facts concerning Dr Beger, were not capable of adversely affecting his reputation. In light of these findings the Committee found that there was no obligation on the broadcaster to offer Dr Beger an opportunity to respond to, or comment on, the arguments and evidence within the programme.

Introduction

This documentary programme, part of the Secret History series, was entitled The Nazi Expedition. The programme examined the work of five German scientists, and members of the SS, who in 1938 conducted an expedition to Tibet under the leadership of Ernst Schaefer. It featured the work, and archive footage, of the expedition’s anthropologist Dr Bruno Beger who took facial casts and measurements of Tibetans as part of its research. The programme set out to show that while the official goal of the expedition was scientific, its secret mission was to discover “the origins of the Aryan peoples” and “search for signs of a long-vanished master race”. This was set in the wider context of the work of the Ahnenerbe, an ancestral heritage foundation set up by the leader of the SS, Heinrich Himmler.

The programme also discussed the lives of members of the expedition team, including Dr Beger, before during and following World War II. The programme made a number of allegations concerning Dr Beger and in particular stated: that prior to the expedition Dr Beger had “drawn up criteria for forcible sterilisation in order to eliminate ‘unworthy life’”; that during World War II Dr Beger intended to study the skulls of Jewish Commissars of the Red Army shot by German soldiers and to have these “sent back to Germany for his anatomy collection”; and, that in Auschwitz concentration camp he selected prisoners who were “sacrificed for the sake of scientific comparison”, and put to death at the Natzweiler concentration camp and were part of the creation of “a comprehensive collection of skeletons”. The programme stated that Dr Beger “received a three year prison sentence as ‘accomplice to 86 cases of murder’”.

Mr Roger Croston complained on behalf of Dr Bruno Beger that he was treated unfairly in the programme as broadcast.

The Complaint

Mr Croston’s case

In summary, Mr Croston complained that Dr Beger was treated unfairly in that:

The programme contained inaccurate information, distortions as well as unfair selections and juxtapositions of material taken out of context, which was misleading to the audience which resulted in unfairness to Dr Beger. In relation to this head of complaint Mr Croston also submitted detailed individual complaints regarding the programme’s commentary (see below at head d).
The programme adversely affected Dr Beger’s reputation. In relation to this head of complaint Mr Croston also submitted detailed individual complaints regarding the programme’s commentary (see below at head d).
Dr Beger was not given an opportunity to contribute to the programme. In relation to this head of complaint Mr Croston stated the Dr Beger had declined an opportunity to respond to an earlier German programme on which this programme was based. However Mr Croston argued that the earlier programme was substantially different from the Channel 4 programme as broadcast and that Dr Beger had not therefore been offered an opportunity to respond to the programme as broadcast.
In summary, and in relation to the above heads of complaint, Mr Croston submitted detailed individual complaints regarding the programme which, he stated, resulted in unfairness to Dr Beger:

Complaint 1: The programme unfairly stated that the expedition had sinister motives and thereby adversely affected Dr Beger’s reputation. Mr Croston stated that this was not the case as it was a normal and wide ranging scientific study in accordance with the then world wide standards.

Complaint 2: The mission was not secret, as unfairly stated in the programme, but a normal scientific expedition. There was no “darker purpose” to the expedition nor was the expedition team looking for the origin of an Aryan peoples or signs of a vanished “Master Race”. Mr Croston complained that Dr Beger’s reputation was adversely affected by the programme’s claim.

Complaint 3 : The expedition did not attempt to rewrite history nor to justify any change to the future of the world as unfairly stated by the programme. Mr Croston complained that Dr Beger’s reputation was again adversely affected by this claim.

Complaint 4 : The expedition was not an official German one, as unfairly stated by the programme, but privately run. Furthermore Mr Croston complained that the programme unfairly implied that it was a search for “the true cradle of the Aryan race” when this allegation was unfounded.

Complaint 5: The expedition was not undertaken courtesy of the Ahnenerbe foundation nor sponsored by the SS as unfairly stated by the programme. Rather it was financed, Mr Croston stated, independently of Himmler and the Ahnenerbe foundation although political support from both was required to obtain foreign currency and passports.

Complaint 6: Mr Croston complained that the programme’s statement that the expedition did not have entry visas was unfair since its members did have permission to travel to India.

Complaint 7: The programme stated that British authorities in India were “wary” as German scientific expeditions were used as cover to foment uprisings. Mr Croston complained that this unfairly implied that the British authorities were suspicious of the Schaefer expedition and this was unfair to Dr Beger, and adversely affected his reputation, since no evidence has been produced to support this claim.

Complaint 8: The invasion of Czechoslovakia was unfairly referred to out of chronological order when in fact it did not occur until the expedition was actually in Tibet.

Complaint 9 : The references to science and scientists in 1938 Nazi Germany and the influence on science of totalitarian governments unfairly implied that the members of the Tibet expedition, including Dr Beger, were involved in harmful activity when this was not the case. Mr Croston complained that Dr Beger’s reputation was again adversely affected by the references.

Complaint 10: The quotation from the expedition’s leader Ernst Schaefer that “the goals of SS ideology and research are the same” was unfairly taken out of chronological order, when in fact the statement was made five years after the Tibet expedition and had no connection with it.

Complaint 11: The claim that Ernst Schaefer’s private intention was to practise hunting and collecting rare plants and animals was unfair as it was a publicly stated aim from the start.

Complaint 12: Mr Croston complained that the programme used archive of the expedition film unfairly, wrongly translated the film’s commentary regarding Tibetan mythology and incorrectly attributed the expedition filming to Tibet when it was actually filmed in neighbouring Sikkim.

Complaint 13: The analogy between the skull and cross bones of Tibetan culture, and the SS, was contrived and was never made by the expedition members, as unfairly implied by the programme. Mr Croston complained that the programme unfairly suggested that the five SS members of the 1938 expedition had absolute power over life and death.

Complaint 14 : The programme unfairly implied that the expedition was expected to reach the Tibetan capital Lhasa by their sponsor(s) when in fact this was not the stated original aim.

Complaint 15 : Mr Croston complained that the expedition never had as an aim the collection of evidence of common German-Tibetan roots as unfairly stated by the programme. Furthermore Dr Beger did not have this as a research objective as unfairly stated by the programme.

Complaint 16: The programme unfairly included the statement that Dr Beger was committed to the ideology of racial superiority. Mr Croston complained that Dr Beger’s reputation was again adversely affected by this claim.

Complaint 17: The programme unfairly stated that Dr Beger offered free medical treatment to recruit volunteers to be measured for his anthropological studies, when in fact he offered this treatment regardless of any involvement in the studies.

Complaint 18: The programme unfairly stated that “At home, he [Dr Beger] has drawn up criteria for forcible sterilisation to eliminate ‘unworthy life’” when there was no evidence for this claim and it was unsubstantiated by original documents. Mr Croston stated that this was one of the two most serious allegations unfairly made in the programme.

Complaint 19: The programme’s reference to Dr Beger’s fascination with death, linked to his observations of a sky burial, unfairly implied that he had unworthy motives in Tibet.

Complaint 20: Mr Croston complained that the programme unfairly stated that Dr Beger was looking for signs of the Aryans in the proportions of the Tibetan people. Dr Beger did not use the term ‘Aryan’ since it was not a valid scientific term and his anthropological studies were consistent with standard worldwide anthropological measurements.

Complaint 21: The programme unfairly suggested that Dr Beger made 200 facial casts of Tibetans when in fact he only made 16.

Complaint 22: The documentary unfairly stated that the Tibetans were part of an experiment that would lead to mass murder. In fact they were part of no such experiment and there was no link between the expedition and Dr Beger’s subsequent involvement in a programme that led to the murder of 86 prisoners.

Complaints 23, 24 & 25: Mr Croston stated that neither Dr Beger nor the expedition had as an objective the goal of finding physical proof that the Nazis were descended from a pure Aryan type as unfairly stated by the programme’s commentary and by historian Christopher Hale in interview.

Complaint 26: The programme unfairly used the emotive term ‘victim’ to refer to a person having a cast made of his head when he was not deliberately and intentionally injured. This was unfair to Dr Beger and implied he had unworthy motives in Tibet.

Complaint 27: The programme unfairly stated that Dr Beger believed that his collection of facial casts concealed the characteristics of the Aryan super race. In fact Dr Beger never used the term ‘Aryan’ or ‘super race’ and he was using worldwide standard objective anthropological methods.

Complaint 28: Mr Croston complained that the programme unfairly referred to Dr Beger using the “mathematics of the Master Race” when in fact he never used the term “Master Race” and the mathematics used was that of the standard anthropology of the time.

Complaint 29: The programme unfairly referred to the invasion of Poland out of chronological order when in fact Poland was not attacked until after the expedition returned to Germany.

Complaint 30: The programme unfairly stated that “Himmler recalls his men” when in fact the expedition’s leader was advised to return to Germany by his father, and the expedition team was not under the orders or control of Himmler.

Complaint 31: The programme unfairly stated that the knowledge acquired by the expedition was used to feed divisive and elitist racial theories propounded by the SS. In fact the knowledge acquired was only used in order for Dr Beger to write a paper and the expedition leader to use in his film and book. Mr Croston complained that Dr Beger’s reputation was again adversely affected by this claim.

Complaint 32: The programme unfairly claimed that the footage of the Tibetan expedition was turned into a propaganda film Secret Tibet. The claims about parallels between German and Tibetan society were not made in Secret Tibet as alleged in the programme (transcript translation and recording have been provided). The film is recognised today as an expedition travelogue.

Complaint 33: The programme unfairly referred to the Tibet expedition as having looked for traces of Aryan heritage when this was not the case.

Complaint 34: The programme unfairly stated that Dr Beger compared his Tibetan measurements with other races, with “data derived from death” when neither was the case. Mr Croston complained that Dr Beger’s reputation was adversely affected.

Complaint 35: The programmeunfairly stated “Hitler orders his soldiers to shoot the Jewish Commissars of the Red Army on sight. Beger intends to study their skulls to be sent back to Germany for his anatomy collection”. Mr Croston stated that this was the second of the two most serious allegations unfairly made in the programme. Mr Croston stated that at Dr Beger’s trial in 1971 the judge stated that Dr Beger could not have been the author of the document “Securing the skulls of Jewish-Bolshevist Commissars” on which this allegation was based. Mr Croston argued it was therefore not the case that Dr Beger intended to have the skulls sent to him, this was a programme proposed by August Hirt [another member of the Ahnenerbe] and was never carried out. Mr Croston complained that Dr Beger’s reputation was again adversely affected.

Complaint 36: The programme unfairly implied that Dr Beger selected over 100 Auschwitz prisoners to be killed when in fact he selected them for anthropological measurements only. Mr Croston stated that subsequently Himmler and Hirt were found guilty of the murder of the prisoners, Dr Beger was found guilty only as an accomplice to murder.

Complaint 37: Mr Croston complained that the programme unfairly stated that to Dr Beger these people were the antithesis of the Aryans who he had been looking for in Tibet. In fact Dr Beger was not looking for Aryans in Tibet and he never stated that any people were the antithesis of Aryans.

Complaint 38: Mr Croston complained that the programme did not make clear that Dr Beger selected prisoners (at Auschwitz concentration camp) only for anthropological measurement and not to be put to death. Mr Croston stated that it was made clear at Dr Beger’s trial in 1970 that their deaths were planned by Himmler and Hirt.

Complaint 39: Mr Croston complained that the programme, which stated that “in 1971 Bruno Beger received a three year prison sentence as accomplice to 86 cases of murder”, did not state that Dr Beger was given the minimum sentence of three years suspended, because (the court accepted) he had been ‘entrapped by fate in mass murder and had not been involved out of condemnable motives’.

Complaint 40: The programme unfairly stated that the expedition attempted “to make myth modern history” when this conclusion could not be drawn from its plans or results. Mr Croston complained that this was unfair to Dr Beger as an expedition member.

In summary, Mr Croston complained that Dr Beger’s privacy was unwarrantably infringed in the broadcast of the programme through the commentary’s reference to his home town. However this complaint was not entertained by Ofcom since the reference was sufficiently general to be incapable of infringing Dr Beger’s privacy.

Channel 4’s case

In summary Channel 4 responded to the fairness complaint made by Mr Croston on behalf of Dr Beger as follows:

a) Channel 4 stated that it wholly rejected any complaint that the programme was unfair in its treatment of Bruno Beger. Channel 4 responded to the complaint that the programme contained inaccurate information, distortions and unfair selections and juxtapositions of material taken out of context, by addressing each point at head d) below.

b) Channel 4 next responded to the complaint that the programme adversely affected Bruno Beger’s reputation. Channel 4 noted that: Bruno Beger’s work as an anthropologist was almost entirely confined to his activities as an officer in the SS; he holds a PhD but has held no academic post in Germany; and, after the defeat of the Third Reich he was a paper manufacturer and therefore has no ‘academic reputation’ to defend.

Channel 4 stated that Bruno Beger studied under Hans F.K. Gunther who taught anthropology based on concepts of race and that following his PhD he joined the SS and Nazi Party and worked for the Race and Settlement Office which ensured SS recruits and their prospective brides measured up biologically. Channel 4 stated that Bruno Beger, like the SS head Himmler, became fascinated with the possibility that Nordic migrations had left biological traces in the people of the Himalayas and was offered a chance to join the Tibet expedition.

Channel 4 described how following the expedition and the start of WWII, Dr Beger returned to Germany, served in the SS and took part in the invasion of Russia. He continued ‘scientific studies’ with an Institute linked to the Ahnenerbe, and was on Himmler’s ‘Personal Staff’. Channel 4 stated that Dr Beger devised a study comparing the buttocks of African ‘Hottentots’ and Jewish women held in ghettoes and concentration camps although this was never carried out.

Channel 4 stated that in 1943 Dr Beger became involved with ‘Project Beger’ which also drew in the head of the Ahnenerbe, Wolfram Sievers, the manager of the Nazi genocide Adolf Eichmann and Dr August Hirt. The Project had its origins in a chilling letter recommending the collection of the skulls of ‘Jewish Bolshevik commissars’ murdered on the eastern front. According to Professor Michael Kater, an authority on the Ahnenerbe, it was almost certainly written by Bruno Beger. The letter advised remedying the shortage of Jewish skulls by procuring those of the commissars “a repulsive yet characteristic sub-humanity” and instructed “following the induced death of the Jew, whose head must not be damaged…separate the head from the torso”.

Channel 4 stated that Bruno Beger proceeded to the Auschwitz concentration camp to carry out anthropological studies. The prisoners he selected for study were transferred to Natzweiler KZ concentration camp. Bruno Beger followed and, according to Channel 4, assisted Hirt in a series of studies using x-rays as an anatomical record and means of sterilising males, all 86 prisoners were then murdered and their remains transferred to Strasbourg University. Bruno Beger subsequently continued his ‘work’ with them at the Sven Hedin Institute.

According to Channel 4, towards the end of the war Bruno Beger studied ‘Races in War’, was captured in Italy and spent some time in an internment camp.

Channel 4 stated that the Nuremberg ‘Doctors Trial’ followed the main trials in 1946 and the ‘Jewish Skeleton Collection’ became one part of it. Bruno Beger was mentioned in evidence at this trial but, according to Channel 4, his role in the Skeleton Collection was yet to be uncovered. Evidence continued to be gathered in the 1960s, much of it by historian Michael Kater, and Bruno Beger was finally put on trial in 1970. He was found guilty of being an ‘accomplice to murder’ over his work in connection with concentration camps in Germany, and given a three year sentence which was reduced to a probationary sentence on appeal. This was on the grounds that he had waited a long time for his trial and had endured internment.

c) Channel 4 responded to the complaint that Bruno Beger was not given an opportunity to contribute to the programme by noting that the complainant agreed that Bruno Beger was given an opportunity to contribute to the programme when originally made in Germany but declined. Channel 4 argued that the programme complained of was a re-version of the original programme, made and broadcast in Germany, about which Bruno Beger made no complaint.

d) In summary, and in relation to the above heads of complaint, Channel 4 responded to the individual complaints regarding the programme.

Channel 4 1 st Response to Complaint 1: Regarding the reference to “sinister motives”, Channel 4 stated that all the members of the expedition were officers of the SS which was declared a ‘criminal organisation’ by the Allies because of its direct and central role in the murder of millions of Jews, homosexuals and gypsies. Channel 4 noted that Bruno Beger worked for the SS Race and Settlement Office which monitored the racial quality of SS recruits, and that the expedition members all received promotions while in Asia. Channel 4 concluded that to refer to their motives as “sinister” was simply a reflection of internationally accepted moral standards.

Channel 4 1 st Response to Complaint 2 : Regarding the complaint that the mission was “secret” with a “darker purpose” in relation to seeking the origins of a vanished “master race”, Channel 4 stated that this was substantiated by the file on the expedition held by the India Office in the British Library. According to this file the expedition did not reveal its destination nor the nature of its scientific activities to the British authorities.

Channel 4 1 st Response to Complaint 3: Channel 4’s full response to the complaint regarding the reference to “attempts to re-write history” is made in its response at Complaint 15. Channel 4 stated that the documented expedition purpose was to provide evidence of an Aryan empire in the Himalayas. This idea was propagated by Bruno Beger’s PhD supervisor, but was now considered incorrect and was never taken seriously outside Germany.

Channel 4 1 st Response to Complaint 4: Regarding the reference to an “official German expedition”, Channel 4 argued that the expedition was an ‘official German’ one since it was referred to as the “Deutsche Tibet Expedition” on headed paper. Channel 4 commented that this was hardly likely to have happened in a totalitarian society if it was not the case. Furthermore the official report of the expedition described “the German Reich” reaching into the Asian Continent. According to Channel 4 the expedition members were feted by Himmler on their return and the German press reported the trip as ‘Hitler’s delegation to Tibet’. Regarding the reference to the “Aryan race” Channel 4 made its full response at Complaint 15.

Channel 4 1 st Response to Complaint 5: Regarding the reference to the “Ahnenerbe” institute, Channel 4 responded that the expedition was undertaken courtesy of the Ahnenerbe. In spite of quarrels with the Ahnenerbe over funding the expedition described itself as “under the patronage of Reichsfuhrer-SS Himmler and in connection with the Ahnenerbe”. The expedition also turned to alternative funding sources including the official Nazi Party newspaper. The expedition was not independent of the SS, the Ahnenerbe, nor the Nazi state and its various agencies

Channel 4 1 st Response to Complaint 6: Regarding the reference to “entry visas”, Channel 4 responded that this had little bearing on unfairness to Bruno Beger. The point made is that this major expedition set off without permission to enter Tibet which was the stated goal.

Channel 4 1 st Response to Complaint 7: Regarding the reference to British wariness over German scientific expeditions used as cover to launch uprisings, Channel 4 responded that there was a great deal of evidence to show that such German activity during and after WWI would have led the British authorities in India to view the expedition with suspicion. Furthermore the expedition’s leader, Ernst Schaefer was subsequently involved with Himmler in a plan to return to the Himalayas and recruit Tibetans into a guerrilla force against the British although this was not carried out.

Channel 4 1 st Response to Complaint 8: Regarding the reference to the invasion of Czechoslovakia, Channel 4 stated that the policy of German rearmament, and British appeasement, was mentioned to situate the story of the expedition in a wider historical context. The expedition required British permission to travel to Tibet and this was acquired as part of a policy of appeasement. This policy ended with the invasion of Czechoslovakia. In any event, Channel 4 stated, the reference had no bearing on unfairness to Bruno Beger.

Channel 4 1 st Response to Complaint 9: Regarding the reference to “science in Nazi Germany”, Channel 4 responded that this statement alluded to the fact that the expedition included a cross section of science in the Third Reich. In any event, Channel 4 stated, the statement could not be taken to imply harmful intentions in Tibet unless the complainant believed German scientists in the Third Reich would inevitably cause harm.

Channel 4 1 st Response to Complaint 10: Regarding the reference to Ernst Schaefer announcing that “the goals of SS ideology and research are the same”, Channel 4 argued that it was perfectly legitimate to present an analysis of the expedition leader Ernst Schaefer’s motivations using interviews he gave throughout 1933 to 1945. The statement made after the expedition and quoted in the programme was no different to assertions in his book from ten years earlier.

Channel 4 1 st Response to Complaint 11: Regarding the reference to Ernst Schaefer “privately” intending to hunt in Tibet, the India Office files in the British Library, showed that Schaefer was given permission to enter only as a traveller and not to harm any Tibetans or kill any birds, or animals, which would offend the religious feelings of the Tibetan people. This condition of travel was defied.

Channel 4 1 st Response to Complaint 12: Regarding the reference to Tibetan mythology, Channel 4 responded that the programme’s sequence was not misleading since, although it was true that it was filmed in Sikkim, practices in Sikkim and Tibet were very similar. In any event, Channel 4 argued, it had no bearing on any alleged unfairness to Bruno Beger.

Channel 4 1 st Response to Complaint 13: Regarding the reference to the “skull and cross bones”, Channel 4 argued that Ernst Schaefer frequently exploited the fact that the swastika was a revered symbol which could be seen all over the Tibetan world. Schaefer brought with him a collection of swastika pennants and used these to imply kinship between Tibet and Nazi Germany.

Channel 4 1 st Response to Complaint 14: Channel 4 responded to the complaint regarding the reference to the expedition’s sponsor’s expectations at Complaint 15.

Channel 4 1 st Response to Complaint 15: Regarding all references to the aim of the expedition, Channel 4 responded that it was true that Bruno Beger and the expedition were not looking for blue eyed, blond peoples in the Himalayas and that Bruno Beger did not use the term ‘Aryan’ in written sources at least. However, the complaint contained a series of misunderstandings over Bruno Beger’s terminology and methodology, and over the aims of the expedition.

Channel 4 argued that Bruno Beger’s use of terminology demonstrated that he was looking for evidence of ‘Europid’ features in individuals i.e. biological traits exhibited mainly by Europeans, but possessed by some non-Europeans, implying descent from a common ancestor. Channel 4 stated that ‘Europid’ was interchangeable with ‘Aryan’, the legal classification in Nazi Germany of the ancestry of Reich citizens. Channel 4 stated that this was substantiated by documentation provided by the complainant, in which Bruno Beger described ‘Europid’ traits as “tall, with a long head, thin face, less protruding cheek bones…straight hair and an imperious self assured manner”. Furthermore, the Race and Settlement Office of the SS that employed Bruno Beger used the same physical criteria to weed out unsuitable SS applicants.

The programme made clear Bruno Beger’s methodology, namely in measuring, recording and mathematically processing many different kinds of physical trait, including eye colour and hair type, which would provide evidence of biological linkage between Asians and Europeans. He did not use the term ‘Aryan’ to describe these traits as this was considered a confusing term by his PhD supervisor professor Hans F.K. Gunther. However the term he used ‘Europid’ was interchangeable with ‘Aryan’ and the latter was chosen by the programme makers as it was more accessible to a wide audience.

Channel 4 stated that the expedition was planned by Ernst Schaefer who was reported, by the British Mission Officer in Tibet, to be fascinated by ‘the Aryan line’ and also ‘Anti-Jew’. According to Channel 4, Schaefer was unlikely to have chosen an anthropologist who did not share this preoccupation. His long-term interest in ‘Aryan’ racial traits in Asian peoples, evidenced by his writings before 1938, provided a key motivation for the expedition to Tibet. He wrote: “this opens up a whole new area of science…to establish how far the Aryan race interspersed on the roof of the world” and this was the proposal he took to Himmler in 1936.

The distribution of Aryan types in the Himalayas was also the work of Bruno Beger’s professor, the anthropologist Hans F.K. Gunther who wrote about the superiority of the Aryan peoples and the barely human status of lesser races like Jews and Slavs. In a 1933 book, for which Bruno Beger drew up the maps, Gunther asserted that a Nordic empire had spread from northern Europe deep into central Asia, but eventually bred ‘half castes’ with inferior races, and declined and disappeared. Gunther suggested that scattered among some Himalayan peoples were the remote descendents of these original Nordic peoples. Bruno Beger subsequently wrote of the ‘proof’ of this in his report on his work in Tibet Rassen in Tibet.

Channel 4 1 st Response to Complaint 16: Regarding the reference to Bruno Beger’s fascination with “what made a particular race inferior or superior”, Channel 4 stated that this had been established beyond reasonable doubt in its response to Complaint 15 (above). One of the characteristic common traits Bruno Beger observed was a ‘sense of being dominant’, and the race theory proposed by his supervisor Hans F.K. Gunther, endorsed by the Third Reich and taught to students like Bruno Beger, was by definition a pseudo scientific theory of racial difference and superiority. Channel 4 argued that it was incumbent on the complainant to show that Bruno Beger: who was educated by a leading German anthropologist of race theory promoted by the Nazi regime; who voluntarily joined the SS which was dedicated to the ideas of racial purity; and, who contributed a number of race studies to the SS Ahnenerbe institute, was not committed to the idea of racial superiority. Bruno Beger did not have to make statements to this effect since in the Third Reich they were assumed to be self-evident truths.

Channel 4 1 st Response to Complaint 17: Regarding the reference to Bruno Beger offering “free medical treatment” in order to recruit volunteers for his studies, Channel 4 responded that this was corroborated by his own diaries.

Channel 4 1 st Response to Complaint 18: Regarding the reference that Bruno Beger had drawn up criteria for forcible sterilisation in order to eliminate “unworthy life”, Channel 4 responded that Bruno Beger was a supporter of the ‘Lebensborn’ (well of life) project which was created by Himmler and where babies born to ‘racially pure’ girls were adopted and brought up by the SS. Channel 4 stated that according to the authors Victor and Victoria Trimondi, as well as being a dedicated supporter of the Lebensborn project, Bruno Beger’s particular areas of expertise included the development of criteria for sterilisation, castration and abortion programmes intended to prevent “unworthy life”. Channel 4 stated that Bruno Beger had written that “The role model for selection, the breeding aim of our people and its pioneer the SS, is the Nordic race” and that he was intimately involved with the development and application of such ideas through his work with the SS Race and Settlement Office. Furthermore, Channel 4 stated, when Beger worked along side his collaborator Dr August Hirt at the Natzweiler concentration camp x-rays were used to sterilise some of the prisoners.

Channel 4 1 st Response to Complaint 19: Regarding the reference to Bruno Beger being fascinated by death in Tibet,Channel 4 responded thatsince many travellers to Tibet were fascinated by “sky burials” in which “the flesh is cut off and the bones battered to powder”, this did not imply unworthy motives. However, the extent of filming of the sky burials showed an unusual interest in them by the expedition that may be described as obsessive.

Channel 4 1 st Response to Complaint 20 : Regarding the reference that Bruno Beger was searching “for signs of the Aryans”, Channel 4 responded fully at Complaint 15 above.

Channel 4 1 st Response to Complaint 21: Regarding the reference to Bruno Beger making facial masks and that “more than 200 subjects are recorded”, Channel 4 responded that Mr Croston was correct, only 16 casts were made and stated that the factual mistake had been corrected. Channel 4 stated however that this did not substantially alter the meaning of this part of the programme in relation to Bruno Beger.

Channel 4 1 st Response to Complaint 22: Regarding the reference to the subjects little suspecting that they were part of an “experiment that will end in mass murder”, Channel 4 made its full response at Complaint 15 (above). Channel 4 stated that according to Bruno Beger’s own standards he was involved in an experiment to prove a hypothesis regarding race. Such anthropological criteria was later used to classify various peoples as non-Aryan and resulted in their murder and the Tibetans could have had no idea of this, which supported the references made in the commentary.

Channel 4 1 st Response to Complaints 23, 24 and 25: Regarding the references to the expedition seeking to find proof of Nazi descent from a “pure Aryan type”, Channel 4 responded fully at Complaint 15 (above).

Channel 4 1 st Response to Complaint 26: Regarding the reference to a “victim” to describe one of Bruno Beger’s Tibetan ‘subjects’, Channel 4 responded that on at least two occasions he caused physical discomfort to the subjects he measured, or made face masks from, and this was reported in his diaries. Furthermore, Channel 4 stated, un-transmitted expedition footage showed Bruno Beger measuring a woman who was clearly in distress.

Channel 4 1 st Response to Complaint 27: Regarding the reference to Bruno Beger believing that his casts concealed “the characteristics of the Aryan super race”, Channel 4 responded fully at response to Complaint 15 (above). Channel 4 also stated that face masks were an important way to gather evidence of Aryan traits among Asian peoples.

Channel 4 1 st Response to Complaint 28: Regarding the reference to Bruno Beger using “the mathematics of the master race”, Channel 4 responded fully at responses to Complaints 15 and 22 (above). Channel 4 also responded that anthropologists like Bruno Beger assumed that Aryans were biologically and mentally superior to other races. Channel 4 stated that the complainant’s assertion that Bruno Beger’s anthropology was an international standard of the time was based on the similarities between turn of the century American and Nazi German anthropology, but Channel 4 asserted that this was not ‘standard’ it was in fact founded on a notion of the innate superiority of white Anglo Saxons. Furthermore, according to Channel 4, while anthropologists in the UK and America abandoned race based methodology using measurements, the situation in Germany under the Nazis was the reverse.

Channel 4 1 st Response to Complaint 29: Regarding the reference to the attack on Poland, Channel 4 confirmed that the complainant was correct. Poland was not attacked until after the expedition returned to Germany. However Channel 4 argued that this had no bearing on any alleged unfairness to Dr Beger.

Channel 4 1 st Response to Complaint 30: Regarding the complaint over the reference “Himmler recalls his men”, Channel 4 stated that there was clear evidence that Himmler had a close relationship with Ernst Schaefer and this led to the return of the expedition to Germany. Channel 4 argued that the expedition was the result of a meeting between the two men, that Himmler arranged for foreign currency and permission to leave Germany and Himmler made arrangements to smooth over problems with the British India Office regarding travel arrangements, referring to Schaefer as “one of my men”, and Himmler also arranged the expedition’s triumphant return to Germany.

Channel 4 1 st Response to Complaint 31: Regarding the reference that the expedition’s knowledge “will feed the divisive and elitist racial theories propounded by the SS”, Channel 4 responded fully at responses to Complaints 15 and 28 (above).

Channel 4 1 st Response to Complaint 32: Regarding the reference to the expedition film being turned into a propaganda film Secret Tibet, Channel 4 responded that a close examination of Secret Tibet (Geheimnis Tibet) showed that it developed an interpretation of Tibetan history which was clearly designed to appeal to German audiences in the mid-1940’s and so was a form of propaganda. Channel 4 argued that comparisons between the corrupting influence of a church state in Tibet and the Judaeo-Christian tradition in Germany were inferences that a German audience would understand.

Channel 4 1 st Response to Complaint 33: Regarding the reference to the expedition looking for Aryan heritage, Channel 4 responded fully at Complaint 15 (above).

Channel 4 1 st Response to Complaint 34: Regarding the reference to Bruno Beger comparing the Tibetan measurements with other races and with data derived from death, Channel 4 responded that Dr Beger did compare data from Tibet with skeletal evidence acquired from murdered prisoners in the Na

Broadcast Bulletin Issue number 85 - 21|05|07

Standards Cases

In Breach

Naughty Nurse Turn On TV, 14 September 2006, 13:00-16:00 and 15 September 2006, 15:40

World in Focus and R Mornings Revelation TV, various dates and times of transmission

Insider TV3, 14 September 2006, 22:00

Y Byd ar BedwarS4C, 14 June 2005, 20:30

Y Byd ar Bedwar S4C, 14 Mehefin 2005, 20:30

Radio XL 15 September 2006, 11:30

Graham and Louise Breakfast Show – Quiz of the WeekSGR Colchester, 27 November 2006, 08:00

Star Reports and Music To Make You Feel GoodStar Radio in Cambridge (Cambridge and Ely), 7 March 2006, 18:00 and 21 September 2006, 17:40

Meridian TonightITV1 (Meridian), 2 January 2007, 18:00

Not Upheld

Promotion of Sky Movies magazine Sky One, 26 November 2006, 22:00

Footnotes:

Resolved

Top GearBBC Two, 16 July 2006, 20:00

The Charlotte Church Show Channel 4, 23 February 2007, 22:00

Note to Broadcasters

Fairness and Privacy Cases

Not Upheld

Complaint by Mr Roger Croston on behalf of Dr Bruno Beger Secret History: The Nazi Expedition, Channel 4, 12 July 2004

Naughty Nurse
Turn On TV, 14 September 2006, 13:00-16:00 and 15 September 2006, 15:40

World in Focus and R Mornings
Revelation TV, various dates and times of transmission

Insider
TV3, 14 September 2006, 22:00

Y Byd ar Bedwar
S4C, 14 June 2005, 20:30

Y Byd ar Bedwar
S4C, 14 Mehefin 2005, 20:30

Radio XL
15 September 2006, 11:30

Graham and Louise Breakfast Show – Quiz of the Week
SGR Colchester, 27 November 2006, 08:00

Star Reports and Music To Make You Feel Good
Star Radio in Cambridge (Cambridge and Ely), 7 March 2006, 18:00 and 21 September 2006, 17:40

Meridian Tonight
ITV1 (Meridian), 2 January 2007, 18:00

Promotion of Sky Movies magazine
Sky One, 26 November 2006, 22:00

Top Gear
BBC Two, 16 July 2006, 20:00

The Charlotte Church Show
Channel 4, 23 February 2007, 22:00

Complaint by Mr Roger Croston on behalf of Dr Bruno Beger
Secret History: The Nazi Expedition, Channel 4, 12 July 2004