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Broadcast Bulletin Issue number 87 - 18|06|07

Standards Cases

In Breach

Gamer TV
Bravo TV, 30 July 2006 & 8 October 2006, 10:00

Introduction

Gamer TV is a programme which reviews computer games and is broadcast at 10:00 on Sunday mornings (as well as other times).

One viewer complained that on Sunday 30 July 2006 the programme featured clips from the computer game Scarface – The World is Yours. The complainant said that the clips of the game featured in the programme contained a number of violent sequences.

Another viewer complained that on Sunday 8 October 2006 the programme featured violent elements from the computer game Dead Rising. Viewers were shown a three-minute segment from the game which included images of a man using a variety of weapons and objects to decapitate and subdue zombies attacking him in a shopping centre.

Virgin Media (formerly Flextech), the operator of Bravo, was asked for comments on the broadcasts in relation to Rule 1.3, which states that “children must be protected by appropriate scheduling from material that is unsuitable for them”.

Response

Virgin Media said the primary audience for Bravo consists of men between the ages of 18 and 44 years old, most of whom would not be offended by any of the material in either of the episodes complained of.

It also said that the programme Gamer TV did not attract a significantly high proportion of children, citing its own research based on BARB data. This showed, according to Virgin Media, that for the 10:00-10.30 time slot for Bravo on 30 July 2006 the child index was zero. Further the broadcaster explained that the child index for Bravo and Bravo+1 combined for the Sunday 10:00-10:30 timeslot across the year was 102. Virgin Media stated that Ofcom should take this into account in reaching a decision. It went on to say that the characters and situations portrayed in the game Scarface – The World is Yours, broadcast on 30 July 2006, were far removed from everyday aspects of violence and that in order to review computer games, which often contain a great deal of violence and/or questionable behaviour, the programme needed to show a proportion of this activity in order to give an accurate account of the game’s content. Virgin Media added that, whilst the programme refrained from showing the most gruesome scenes, to fail to show a level of violence relevant to the game could have led to the audience being misled about the game’s content.

With regard to the clips of the game Dead Rising featured on Gamer TV on 8 October 2006, it said that it considered that the zombies could not be associated with any aspect of real life and that some of the clips shown featured the male protagonist wearing a dress as part of the game-play and fighting zombies with absurd objects such as a garden umbrella, a road cone, a bubble gum ball machine and a picture frame. It also said that the primarily male audience for Gamer TV was capable of separating the violence that occurred in interactive, simulated computer games from reality.

Virgin Media concluded that it takes its compliance responsibilities very seriously and that, in the light of these complaints, it has put measures in place to ensure that in future there is clear information for viewers that some clips from computer games include scenes of a violent nature.

Decision

On 30 July 2006, Gamer TV broadcast clips of the computer game Scarface – The World is Yours showing the lead character using a variety of weapons such as sub-machine guns and knives to kill his opponents. The four minute clip of the game comprised a number of scenes which contained acts of extremely graphic violence.

On 8 October 2006, Gamer TV featured clips taken from the game Dead Rising which parodies the zombie horror film genre. The lead character in the game was shown running through a shopping centre decapitating and dismembering the zombies in his path using a variety of weapons and everyday objects including a chain saw, a baseball bat, a sabre, a battle-axe and power tools.

Ofcom acknowledges that it may be appropriate for it to take audience data into account in reaching a decision about appropriate scheduling. However, it is important that Ofcom should consider the relevant data in any given circumstances and, in particular, when considering how to interpret it. Rule 1.3 (“Children must be protected by appropriate scheduling…”) requires the broadcaster to consider “the likely number and age range of children in the audience” i.e. appropriate scheduling for a particular programme cannot, and should not, be determined by its actual audience figures alone. This is because the Rule obliges broadcasters to decide what is appropriate scheduling for a particular programme before it is broadcast.

Figures for child indexing on niche channels which receive lower overall viewing figures should be treated with extreme caution. Nevertheless, while the child audience for Gamer TV on 30 July 2006 may have actually produced an index of zero, BARB data for the transmissions of Gamer TV in 2006 in the 10:00-10:30 day part on Sunday mornings on Bravo shows that the child index across the year was 127. This shows that Gamer TV is likely to contain a higher than average child audience. In this case, Ofcom considers this figure to be the most relevant indicator of what the likely audience is (and not the general timeslot on the combination of both Bravo and Bravo +1 or the child index at any time Gamer TV is broadcast on the channel). It is clear that the child audience index varies from week to week. For example, on 30 July 2006 it was zero but on 8 October it was 133,  and on  other days the figure reach ed  over 200.

As regards compliance with Rule 1.3, Ofcom notes that both the computer games Scarface – The World is Yours and Dead Rising are rated 18 by the British Board of Film Classification. Although a BBFC rating is not in any way determinative of whether extracts from a computer game can be broadcast before the watershed, it is a relevant factor which Ofcom can take into account in its decision. Such a rating suggests that broadcasters should exercise appropriate care in deciding whether to show clips of games in this category, especially during the daytime and at the weekend when children are likely to be watching. Ofcom also noted that, whilst Virgin Media claimed Gamer TV was unlikely to appeal to children, the game review following on from the feature on Dead Rising, on 8 October 2006, was a lengthy behind the scenes look at the animated family film The Ant Bully (rated ‘U’ for the cinema by the BBFC) and the computer game based on the film which had recently been launched. In Ofcom’s view, this shows that it is possible that the programme-makers were aware that the programme may attract a child audience and provide content accordingly.

Ofcom noted that Virgin Media suggested that in future the programme would include clear information before broadcasting material which includes scenes of a violent nature. Ofcom welcomes the inclusion of identifying information which would enable viewers to make decisions about what they will watch. However, the provision of information does not, in itself, relieve broadcasters of the duty to comply with Rule 1.3 of the Code (to schedule appropriately material unsuitable for children). Children may not be able to make decisions, based on such information, about whether they should continue watching when they were viewing on their own.

Taking account of all these factors, in Ofcom’s view this material was not suitable for broadcast in a computer game review programme during the day at weekends when children were likely to be watching.

Breach of Rule 1.3

The original decision to find this programme in breach was appealed twice by the broadcaster. This finding is the result of those appeals.

Footnotes

1.- Child index is the figure used to calculate the proportion of children in an audience against the general viewing population. A figure of 100 indicates that the child audience watching the programme exactly matches the general profile. A figure of e.g. a 120 would mean that children watching that programme are over-represented by 20%.

News bulletins
Whitchurch FM (89.9 MHz) (Restricted Service Licence), April 2007

Introduction

A listener complained that the news on Whitchurch FM was sponsored by a local business. The news bulletins themselves were provided by Sky to Whitchurch FM.

Rule 9.1 of the Code states that news bulletins and news desk presentations on radio may not be sponsored. Ofcom therefore requested the broadcaster’s comments.

Response

The broadcaster said that it had misinterpreted Rule 9.1, and had thought that the rule only applied to news that it itself produced, not to “external news feed from Sky”. The broadcaster apologised and assured Ofcom that there would be no recurrence.

Decision

From the recordings supplied to Ofcom, it was clear that news output on Whitchurch FM had been indeed been sponsored. This was clearly in breach of Rule 9.1.

Ofcom welcomed the broadcaster’s acknowledgement of its mistake and efforts to prevent a recurrence. Ofcom also noted that the Restricted Service Licence (RSL) had been granted for a period of 12 days only. However, the finding of a breach is a factor that would be taken into account by Ofcom in considering any future application for an RSL by the broadcaster.

As stated in a similar finding published in Broadcast Bulletin 84, it is important that all holders of RSLs, which are often issued for specific events and limited periods of time, appreciate that the rules in Section 9 (sponsorship) and 10 (commercial references) of the Code apply to them fully. They must at all times have in place appropriate resources and procedures to ensure compliance.

Breach of Rule 9.1

Equal opportunities
Duty of licensees to make suitable arrangements to promote equal opportunities in employment and provision of information to Ofcom

Introduction

Section 337 of the Communications Act 2003 (“the Act”) requires Ofcom to include conditions in radio and television licences that broadcasters make arrangements to promote equal opportunities in employment on the basis of gender, race and disability. Those conditions require broadcasters to publish their observations on the current operation and effectiveness of the arrangements they have in place. Separately, Ofcom has a duty under section 27 of the Act to promote equal opportunities in employment in broadcasting. It is a condition of every Broadcasting Act licence that the licensee must provide Ofcom with such information as Ofcom may require for the purposes of exercising its statutory functions.

In order to assist broadcasters with their obligation to report on the arrangements they have in place, Ofcom asked broadcasters in December 2006 for their observations on the current operation and effectiveness of their respective arrangements. At the same time, and as part of its duty to promote equal opportunities, Ofcom also asked each broadcaster who was required to have arrangements in place for other, more specific equal opportunities information and statistics in relation to those arrangements. The Act exempts broadcasters from the requirement to have arrangements in place if they employ fewer than 21 people under a single licence or as part of a larger operating Group, or are licensed to broadcast for less than 32 days per year. Accordingly, licensees who qualified for this exemption during the reporting period were not required to provide the information requested. However, they were required to register their exemption formally online.

Despite a number of reminders from Ofcom, several licensees have failed to provide a report or to register their exemption. Ofcom was conscious that some smaller licensees might not have started operating their licensed service during the period, or might have employed fewer people than the threshold number of 21 and, therefore, that they may have been under the impression that they did not need to take any action. To that end, our reminders clearly highlighted the requirement for all licensees to respond by lodging their report or their qualification for an exemption.

Decision

Ofcom has given written warnings to broadcasters who failed to engage with the process (or indeed to publish in any other manner their observations on the current operation and effectiveness of the arrangements). Nevertheless, a number of broadcasters (see below) have still not provided the information requested. As a result of the continued failure by these licensees to respond to Ofcom following these warnings, Ofcom has now recorded the following two licence breaches against these licensees:

(1) a breach of the requirement to publish observations on the current operation and effectiveness of the licensee’s equal opportunity arrangements; and

(2) a breach of the requirement to furnish information to Ofcom in such manner and at such times as Ofcom may reasonably require for the purposes of exercising its functions.

The television licensees who have failed to respond adequately to our final warning and who are in breach of Conditions 12(1) and 25(3) of their TLCS[(-2-)] broadcasting licence are listed below:

A&A Inform Limited
Al Shirkatul Islamiyyah
Awareness TV Ltd
Bangla TV (Worldwide) Limited
C Music Entertainment
Carnaby Media plc
CTV International Ltd
DMA Media Limited
East West Broadcast Limited
Emirates Media Inc
Entertainment Distribution Company Ltd
Hallelujah Music Television Limited
Hellenic Television Ltd
Intellivision Broadcast UK Ltd
JJTV Limited
Konta Music Television
Living in Spain TV
Media News Network Ltd
Nepali TV Limited
NFL Enterprises LLC
Nollywood Movies Limited
North West 1 Limited
PAK (UK) TV Limited
Passion Broadcasting Television Services Ltd
Prime Plus Limited
R70 World Limited
RN TV (UK) Limited
TKTTV Limited
Trends TV Limited
Twenty Four 7 TV Limited

Breach of Conditions 12(1) and 25(1) of TLCS Licence

The radio licensee who has failed to respond adequately to our final warning and who is in breach of Conditions 9(1) and 23(3) of its local analogue licence[(-3-)] is listed below:

Lochbroom FM

Breach of Licence Conditions 9(1) and 23(3) of Local Sound Broadcasting Service Licence

These breaches of licence conditions have been formally recorded and Ofcom will consider what further regulatory action will be necessary if a broadcaster continues to breach the terms of its licence.

Footnotes

2.- Television Licensable Content Service

3.- Local Sound Broadcasting Service Licence

Resolved

Pokerstars
Kanal 5, 17 February 2007, 10:15

Introduction

Kanal 5 is a Danish language general entertainment channel aimed primarily at an audience in Denmark. Since the service is established in the UK it is licensed and regulated by Ofcom under the Code.

One viewer in Denmark complained that the programme Pokerstars, which is a televised poker game between 5 contestants, contained the word “fuck” (in Danish) and featured the programme’s presenters smoking. Ofcom asked the broadcaster to comment with regard to: Rules 1.10 (“…[S]moking…must generally be avoided and in any case must not be condoned, encouraged or glamorised in…programmes broadcast before the watershed…unless there is editorial justification”); and 1.14 (“The most offensive language must not be broadcast before the watershed or when children are particularly likely to be listening”).

Response

Kanal 5 said that this transmission was the repeat of a programme that had previously aired after midnight. It accepted that the presenter smoked from time to time during the course of the programme, and that this was technically a breach of Rule 1.10, but said that there was no active encouragement of smoking and that it was not glamorised on screen.

Kanal 5 acknowledged that the word “fuck” had been “muttered” by one of the contestants and that it was then, unfortunately, repeated by the presenter. Kanal 5 argued that neither use of the word was particularly audible but acknowledged that Rule 1.14 is specific and had been breached. It explained that the issue arose on this occasion because a late night edition of Pokerstars containing the bad language was mistakenly rescheduled for pre-watershed transmission. The Chairman of SBS Danish Television Ltd (the owner of Kanal 5) intends to meet with the scheduling team responsible to highlight to them how inattentive scheduling can cause problems, and how vigilance is required to ensure that audiences are not exposed to activities and language prohibited under the Code.

Decision

Ofcom welcomes the broadcaster’s admission that it breached the Code with regard to the depiction of smoking and the use of offensive language in Pokerstars, and notes that this resulted from inappropriate scheduling. Ofcom took into account Kanal 5’s good compliance record to date and that the management of SBS Danish Television Ltd will use this incident to highlight to staff the need for vigilance when re-scheduling post-watershed programmes in future. Ofcom therefore considers the matter resolved.

Resolved

Scotland Today
STV Central, 13 February 2007, 18:00

Introduction

A viewer queried the use of archive CCTV footage during a report in the early evening news broadcast in Scotland on new police powers to tackle anti-social behaviour with on the spot fines. The viewer considered that the footage depicted extreme violence without any prior warning to viewers. In addition he considered that the footage was not depicting the anti-social behaviour which was the subject of the story. In his view, the footage was unnecessary and not appropriate for the time at which it was shown.

Ofcom asked the broadcaster to comment in respect of Rule 2.3 of the Code, which states that in applying generally accepted standards broadcasters must ensure that material which may cause offence – including violence – is justified by the context.

Response

STV said the rationale for using this footage was that it underlined the message that the local authority and police were trying to convey – that anti-social behaviour often escalates from nuisance level to threats of (or actual) violence. However STV fully accepted that the level of violence shown was inappropriate for the actual report, and that it might well have taken some viewers by surprise. They apologised for any offence caused and informed Ofcom that the footage would not be shown again in Scotland Today without the express permission of the programme editor.

Decision

The level of the violence depicted in the CCTV footage was not justified by the context of the story which was about more minor anti-social behaviour. However we welcome STV’s response in accepting the level of violence was inappropriate and in ensuring that the footage would be subject to referral should its use be considered again. Ofcom therefore considers the issue resolved.

Resolved

Heart Breakfast with Sam and Amy
Heart 106 FM (East Midlands), 21 March 2007, 07:30

Introduction

During a competition item called ‘Luck of the Irish’ in which listeners could win tickets for ‘Riverdance’, presenters encouraged the audience to call or text the studio with any Irish jokes they knew and to adopt a convincing Irish accent when relaying them. In the course of the item the presenters also mimicked an Irish accent and told jokes, which relied on the negative stereotype of the ‘thick’ Irishman. A listener complained that the item was offensive and racist in nature.

Response

The station told Ofcom that, following a complaint made directly to it about the broadcast, it agreed that the jokes were ill-judged and the presenters were told that the manner in which the feature was handled was unacceptable. An on-air apology was given the following week, which stated:

“Last week on the show, during a competition based around Irish culture, we aired some jokes that were offensive towards Irish people. It was never our intention to offend, and we wish to sincerely apologise for any offence caused”.

Decision

Ofcom welcomed the acknowledgement by the station that this item had been misjudged. While the banter surrounding this competition item was clearly intended to be good-natured, it nevertheless should have been recognised that such humour had the potential to cause genuine offence. However, in view of the fact that the matter was dealt with internally and an on-air apology given, we regard the matter as resolved.

Resolved

Not in Breach

Shipwrecked
Channel 4, 21 January 2007, 18:25

Introduction

Shipwrecked is a reality television programme broadcast on Channel 4 in which a group of young men and women are “shipwrecked” on two adjacent islands for over five months. They are in two teams, each based on one island, competing to become the most popular island. A £70,000 prize is awarded to the winning island and distributed amongst its team.

This first episode introduced the initial ten competitors on the two islands to viewers through a series of introductory interviews. 1,453 viewers complained about the homophobic treatment of student Joe Stone and the views expressed by one member of the group, 18-year-old Lucy Buchanan. Viewers complained that her language in her introductory interview was racist and/or homophobic and offensive. As part of her introductory interview, she said:

“I don’t really like fat people, I don’t really like really ugly people. I don’t like it when foreigners come into our country and they don’t take on the British culture and the British values. I’m quite for the British Empire and things. I’m for slavery but that’s never going to come back”.

Rule 2.1 of the Code states that:

“Generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material.”

Rule 2.3 then 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..., offensive language, ... discriminatory treatment or language ( for example on the grounds of...race...).”

It should be noted that the Code does not prohibit the broadcast of language or behaviour because it is, or may be perceived to be offensive or racist. Such material can be transmitted so long as ‘generally accepted standards’ are applied to the broadcast content so as to provide adequate protection to members of the public from the inclusion of harmful or offensive material.

The Code sets out the meaning of ‘context’ as including, but not limited to: the editorial content of the programme or series, the service on which the material is broadcast, the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally or in programmes of a particular description and the likely expectation of the audience.

Furthermore, Ofcom must exercise its duties in a way which is compatible with Article 10 of the European Convention of Human Rights (“the Convention”). Article 10 provides for the right to freedom of expression, which encompasses the right to hold opinions and to receive and impart information and ideas without interference by public authority. Applied to broadcasting, Article 10 therefore protects the broadcaster’s right to transmit material as well as the audience’s right to receive it as long as the broadcaster ensures compliance with the Rules of the Code and the requirements of statutory and common law.

Decision

Ofcom noted the comments in the programme made by Lucy Buchanan, as set out above.

First, Ofcom considered the potential degree of offence caused by the inclusion of this material in programmes generally. Ofcom took the view that whilst Lucy Buchanan’s views regarding “fat people” and “ugly people” may have been considered to be rude by many viewers, it was the following comments (given both in interview and reported by other participants) that were potentially offensive in the light of generally accepted standards:

Lucy Buchanan: “I don’t know them” ...“from what I’ve seen they’re really bad”.

In deciding whether these would be offensive in terms of generally accepted standards, Ofcom took into account that discrimination on the grounds of race and sexual orientation is illegal.

Ofcom noted that the words which viewers found offensive were not used within commentary but were the views of Lucy Buchanan. Channel Four did not appear to condone or encourage these views except in as far as they broadcast them. In order to comply with Rule 2.3 of the Code however, Channel Four was required to justify the inclusion of these potentially offensive comments in the programme by their context. Ofcom therefore considered the context in which these views were broadcast, noting that in the same programme:

Ofcom therefore noted that following Lucy Buchanan’s introductory interview, her attitudes on race were vigorously challenged by fellow competitors later in the same programme. Also, her attitudes towards gay people were not broadcast from her own mouth but were reported by another contestant in the context of how these views had changed once she had met and got to know someone who was gay whilst taking part in the programme.

In assessing the context of Lucy Buchanan’s comments, Ofcom further considered the service on which the comments were broadcast, the viewer expectation and the nature of Shipwrecked as a programme .

Firstly, Shipwrecked was broadcast on Channel 4, a channel which has a distinctive public service remit under statute to air programming which “demonstrates innovation, experiment, creativity…and exhibits a distinctive character.”

Secondly, in terms of viewer expectation, Ofcom considers that viewers of reality television programmes of this nature broadcast on Channel 4 expect that they will be confronted with behaviour that they may find offensive and view as generally unacceptable. It is recognised that Shipwrecked is the type of programme where viewers may expect emotional and offensive exchanges to occur, as the characters of the participants are revealed.

Thirdly, in considering the type of programme in which the comments were broadcast, Ofcom noted that this was the first episode in a reality television series which would last for five months. The term ‘reality television’ covers many different forms of programme, however, it is a distinct genre which applies the following common conventions; it is unscripted; it places people from different backgrounds and with different attitudes in a confined area to record how they inter-react over a period of time; there are challenges and the prospect of a substantial prize at the end; the resulting tensions generate conflict which reveals the characters of the participants and influences or decides who ultimately wins. Ofcom therefore recognises that in terms of the nature and purpose of a show like Shipwrecked, it is an integral part of the context of the programme that viewers are given information about the participants’ true characters, behaviour and beliefs. It is the broadcaster’s responsibility to ensure that the viewer gets an accurate picture of each contestant and not one which is editorialised.

There is no requirement that all people who take part in a reality television programme must be shown to only express views which meet generally accepted standards. This would not be a justifiable or proportionate limitation on freedom of expression. One of the consequences of reality television is that it can present to viewers attitudes which are not often aired on television but which are held by an unpredictable range of people. The fact that the contestants and many viewers found Lucy Buchanan’s views offensive did not mean that Channel Four was not entitled to broadcast them in context.

Taking all the above considerations into account, Ofcom reached the view that Channel Four took appropriate care in creating adequate context for Lucy Buchanan’s views, which justified their inclusion in this programme. The context ensured that her behaviour and views were not encouraged or condoned by the broadcaster, but were instead robustly challenged.

Ofcom therefore considered there to be no breach of the Code on this occasion.

A number of viewers also complained that during the same episode a participant of the programme, Joe Stone, who was gay, was the victim of homophobia from other men in the group. During the first few days on the island, the two teams were made to construct their own living accommodation. The rest of the group noticed that Joe was not helping or contributing as much as everyone else. When Joe was elsewhere on the island, they described him on camera as “idle” and a “bloke who’s like a bird”. In particular, one member of the team said “you [generic] don’t need to be like a fairy”. None of these comments were made directly to Joe although he did later accept that he wasn’t fitting in well with the group because he wasn’t as eager as everyone else to participate in the building work.

Channel Four’s coverage in this introductory episode reflected how the teams were bonding - or not - and Ofcom considered that the men’s impatience with Joe’s apparent unwillingness to get involved in the activities was justified in the context of the programme. Whilst most would consider the pejorative use of the word ‘fairy’ as offensive, Ofcom noted it was not used as an insult or in a derogatory way towards Joe. It was an off-the-cuff remark to camera from the self-appointed leader of the group who was frustrated by Joe’s lack of willingness to participate in the more macho elements of the group.

It is important, so long as the Code is complied with, that broadcasters can explore and raise issues such as racism in their programmes. The simple fact that views or expressions are offensive does not mean that they can not be transmitted. Documentaries, dramas and other programmes all deal with issues such as racism or sexism. What is necessary is that broadcasters apply generally accepted standards to such material and ensure its inclusion is justified by the context.

Whilst Ofcom acknowledged some viewers found the use of this word offensive, it did not consider its broadcast to be in breach of the Code.

Not in breach

Fairness and Privacy Cases

Not Upheld

Complaint by Mrs Jean Smith
Asbo Fever, Sky One, 31 August 2006

Summary: Ofcom has not upheld this complaint of unfair treatment.

Mrs Jean Smith complained that she was treated unfairly in a programme called Asbo Fever, broadcast on Sky One (“Sky”) on 31 August 2006. The programme looked at the stories of a number of people who had been given anti-social behaviour orders (“Asbos”) in relation to animals. One of the stories included was about Mrs Smith, who was given an interim Asbo by her local council to prevent her feeding seagulls outside her home. Footage of an interview with Mrs Smith and her husband Alan was included in the programme, as was footage of a neighbour who had complained about Mrs Smith to the council.

Mrs Smith complained that the programme was unfair because of the omission of information and the inclusion of false claims.

Sky responded that the programme gave an overview of the story, including only facts that were relevant or material to the dispute between the neighbours, and that Mrs Smith was given an opportunity throughout the programme to put her side of the story.

Ofcom noted that there was an interim Asbo in place against Mrs Smith at the relevant time, the existence of which tended to endorse the version of events given by the neighbour in the programme. However, Ofcom considered that each side of the bird feeding dispute was represented in the programme and Mrs Smith was given an appropriate and timely opportunity to tell her story and respond to the allegations made against her.

Introduction

The programme looked at the stories of a number of people who had been given anti-social behaviour orders (“Asbos”) in relation to animals. One of the stories included was about Mrs Smith, who was given an interim Asbo by her local council to prevent her feeding seagulls outside her home. Footage of an interview with Mrs Smith and her husband Alan was included in the programme, as was footage of a neighbour who had complained about Mrs Smith to the council.

Mrs Smith complained that she was treated unfairly in the programme.

The Complaint

Mrs Smith’s case

In summary, Mrs Smith complained that she was treated unfairly in that:

a) Her side of the story was misrepresented in that a number of important facts were omitted from the programme:

b) Her side of the story was misrepresented in that the programme included a number of false claims by the neighbour who appeared on the programme:

c) The programme only referred briefly to the fact that an investigation by the local environmental department, which was instigated by the neighbours, resulted in the neighbours themselves having to carry out work at their property to deter vermin.

d) Further doubt was cast on the neighbours’ story by the fact that the Procurator Fiscal had not proceeded with the case against Mrs Smith and the local council had also decided not to proceed with its case against her. Mrs Smith stated that she and her husband did not move house in order to avoid the possibility of a court hearing, as suggested in the programme, but in part as a result of a “campaign of harassment” by the neighbours and because of the likely cost of a full court hearing. The decision made by the council to abandon the case was made for a number of reasons. Mrs Smith said that the decision by the Procurator Fiscal not to proceed with the action against her was not connected with the decision to move house. The decision was made about nine weeks after the house move.

Sky’s case

In summary Sky responded to the complaint of unfair treatment made by Mrs Smith as follows:

a) The programme, which was a light-hearted look at animal-related Asbos, sought to give an overview of the dispute between Mrs Smith and her neighbours that resulted in the interim Asbo. It was not possible, nor desirable from an editorial perspective, to include all the allegations and intricacies of the dispute in a 46 minute programme featuring four such stories. The programme featured only those matters that the programme makers felt were relevant and/or material to the dispute and would give viewers an understanding of both sides of the story. In response to the complaint that important facts were omitted from the programme, Sky said:

b) In response to the complaint that the programme included false claims, Sky said that the programme sought to provide a snapshot of the dispute between the parties that gave rise to Mrs Smith’s interim Asbo. She did not dispute that the Asbo was imposed on her and she was given an opportunity to put her side of the story and respond to all the allegations against her. The neighbour’s allegation that various foodstuffs had been left out for birds was treated in a tongue-in-cheek fashion using obviously plastic rats and other animals, without any view being given as to whether the allegation could be supported or not. Mrs Smith was then seen dismissing the allegation that bird feeding attracted vermin. It was therefore appropriate and not unfair to include the neighbour’s allegations in the programme.

c) As regards the complaint that the programme referred only briefly to an environmental health investigation, Sky said that the programme included footage of Mrs Smith and her husband referring to the fact that an investigation by the local environmental health department resulted in the neighbours having to carry out work at their property to deter vermin. In the overall context of the programme this reference was not brief and was sufficient to ensure that Mrs Smith was given an opportunity to put her side of the story and respond to the allegation that her bird feeding had encouraged vermin.

d) In response to the claim that the decision of the Procurator Fiscal not to proceed with the case against Mrs Smith, Sky said that the fact that any proceedings against Mrs Smith did not proceed to full trial and/or prosecution could not be held up as supporting her version of events. She stated in the programme that the reason for the case not proceeding was that she had moved away from the area. It was therefore not the case that doubt was cast on the neighbours’ story by the fact that the Procurator Fiscal had not proceeded with the case against Mrs Smith.

Decision

Ofcom’s statutory duties include the application, in the case of all television and radio services, of standards which provide adequate protection to members of the public and all other persons from unfair treatment in programmes included in such services.

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

Mrs Smith’s complaint was considered by Ofcom’s Executive Fairness Group. Ofcom considered the complaint and the broadcaster’s response, together with a recording and transcript of the programme as broadcast.

Ofcom found as follows:

a) Mrs Smith complained that she was misrepresented as a result of material facts being omitted from the programme.

In considering this head of complaint, the Committee took into account Practices 7.9 and 7.11 of the Ofcom Broadcasting Code. Practice 7.9 requires broadcasters to take reasonable care to satisfy themselves that material facts have not been presented, disregarded or omitted in a way that is unfair to an individual or organisation. Practice 7.11 requires that, if a programme alleges wrongdoing or incompetence or makes other significant allegations, those concerned should normally be given an appropriate and timely opportunity to respond.

Ofcom noted that the programme aimed to provide an overview of the story. As with many neighbour disputes, a number of different issues arose between the Smiths and their neighbours. It was an editorial decision for Sky to decide which of the matters raised were relevant to the programme being made, namely one about Asbos, and in particular relevant to the story of Mrs Smith’s interim Asbo for bird feeding. Ofcom considered that it was not incumbent on the programme makers to refer to the following issues that Mrs Smith considered were unfairly omitted: legal proceedings for threatening behaviour, mediation that appeared not to have resolved the matter, an allegation about damage to a clothes line and the question of the costs incurred by the Smiths as a result of the dispute. These were not strictly relevant to the story of bird feeding and, in a programme of 46 minutes that looked at four different stories, it was not incumbent on the programme makers, in the interests of fairness, to refer to them.

Viewers might have understood the reference to the neighbour’s petition being signed by “all the neighbours” as meaning that it was signed by every resident of the street. However, given that the programme also showed Mr Smith with his petition that had signatures on it, viewers might equally have understood it as referring to Mr and Mrs Smith’s neighbours, ie those in the surrounding/adjoining houses, as intended by the programme makers. While potentially ambiguous, this reference in the commentary was not materially misleading. It was clear from the programme that each of the parties to the dispute had a petition and that each of those petitions had signatures. In the circumstances, Ofcom considered that, overall, the question of the petitions was fairly represented. Ofcom noted that, although Mrs Smith considered that the interim Asbo was granted as a result of false evidence, at the time of the broadcast the Asbo was in place and the programme makers were entitled to refer to it. It was clear from Mrs Smith’s contribution to the programme that she did not agree with the evidence about her bird feeding. Ofcom also took the view that Mrs Smith was given an opportunity throughout the programme to put her side of the story.

Accordingly Ofcom found no unfairness in this respect.

b) Ofcom considered Mrs Smith’s complaint that her side of the story was misrepresented by the inclusion of false claims.

In considering this head of complaint, the Committee took into account Practices 7.9 and 7.11 of the Code, as set out under a) above.

It is in the nature of neighbour disputes that the parties make a number of claims against each other. It was not possible for the programme makers to verify all the claims made. However, Ofcom took the view that the each of the neighbour’s claims that Mrs Smith felt should not have been included was put to Mrs Smith and she was given an opportunity to respond to them in the programme.

Ofcom found no unfairness in this respect.

c) Ofcom next considered Mrs Smith’s complaint that the programme referred only briefly to an investigation by the local environmental department that resulted in the neighbours having to carry out work to deter vermin.

In considering this head of complaint, the Committee took into account Practices 7.9 and 7.11 of the Code, as set out under a) above.

Ofcom noted that the programme included the following:

“Narrator: But the Smiths believed that the rodent problem wasn’t to do with their bird feeding.

Jean Smith: Next door had these outhouses whose doors were not quite completely attached to their…to the hinges, and we both thought… Alan and I thought perhaps this was maybe where the vermin were coming from.

Alan Smith: And these assumptions appeared to be correct when, as a result of our investigation, about a few weeks later, we saw a joiner appear, who took the old doors off. And we thought, well that’s where the source has been.”

In Ofcom’s view, this section of the programme set out very clearly Mr and Mrs Smith’s side of the story, in their own words, in relation to the allegation that vermin were present.

Accordingly Ofcom found no unfairness in this respect.

d) Ofcom considered Mrs Smith’s claim that doubt was cast on the neighbour’s story by the fact that the Procurator Fiscal decided not to proceed with the case against her.

In considering this head of complaint, the Committee took into account Practices 7.9 and 7.11 of the Code, as set out under a) above.

Ofcom noted that the Procurator Fiscal decided in July 2006 not to take the case against Mrs Smith any further, but in his letter to her informing her of his decision he gave no reasons. There was, therefore no clear evidence as to what the reasons for the Procurator Fiscal’s decision were. Further, the programme included Mrs Smith’s reasons for the move:

“It’s been hinted by the Council that if we leave the neighbourhood, the case would probably be dropped. So we have decided that we’re going to move back to Dunfermline area again, yes .”

Given the absence of information from the Procurator Fiscal suggesting that doubt had been cast on the neighbour’s version of events and the inclusion of Mrs Smith’s explanation of why she and her husband had moved away from the area, it was not unfair for the programme makers to include what the neighbours said about the dispute.

Accordingly, Ofcom found no unfairness in this respect.

The complaints of unfair treatment were not upheld.

Complaint by Paula Bates on behalf of Toucan Telemarketing Ltd.
Breakfast, BBC News 24, 4 November 2006

Summary: Ofcom has not upheld this complaint of unfair treatment by Ms Bates on behalf of Toucan Telemarketing Ltd.

Ms Bates, who owns and operates Toucan Telemarketing Ltd, complained that the company was treated unfairly in a report on BBC Breakfast on an investigation by Ofcom into four companies for making ‘silent calls’. Ms Bates complained that the report adversely affected her company by failing to prevent confusion between on the one hand Toucan, the telecommunications provider, which, as the programme highlighted, had been notified for misuse of networks and services by Ofcom (its regulator), and on the other Ms Bates’ company, Toucan Telemarketing.

The BBC responded that it recognised the potential for confusion in light of the fact that Companies House records show that there were some 90 companies with names that begin with the word Toucan. However, it argued that it had no option but to refer to the telecommunications provider as “Toucan” because that was how it was generally known, and that as such its broadcast was not unfair to Ms Bates’ company.

Ofcom noted that the report did not refer to Toucan Telemarketing Ltd, Ms Bates’ company. It referred to “Toucan”, which is the trading name of Toucan the telecommunications provider. In doing so Ofcom found that the broadcaster had behaved in a reasonable manner which did not result in unfairness to the complainant and her company.

Introduction

On 4 November 2006, BBC News 24 broadcast an edition of its morning news programme, Breakfast. This edition included a report (which was repeated throughout the programme) about Ofcom’s investigation into silent calls and the fact that it had recently issued ‘notifications of misuse of networks and services’ to four companies, one of which was identified as “Toucan”.

By way of background, silent calls can occur when automated calling systems used by call centres generate more calls than the available call centre agents can manage. If this happens the person called may answer the call only to find silence on the line.

The owner and operator of Toucan Telemarketing Ltd., Ms Bates, complained that her company was treated unfairly in the programme as broadcast.

The Complaint

Ms Bates’ case

In summary, Ms Bates complained that Toucan Telemarketing Ltd. was treated unfairly in the programme as broadcast. She said this was because, in a report considering Ofcom’s investigation into four companies for making ‘silent calls’, Breakfast failed adequately to identify the telecommunications provider, IDT Direct Ltd., which traded as Toucan, and was the subject of a formal notification by Ofcom for making silent calls. This adversely affected her company by failing to prevent confusion between Toucan and Ms Bates’ company Toucan Telemarketing.

Ms Bates observed that “this situation may not have arisen” if the item had “correctly named them (i.e. Toucan the telecommunications provider) as IDT Direct T/A Toucan or Toucan Telecom” and not “broadly referred to them as a marketing company when they are so clearly not”.

BBC’s case

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

While the complainant suggested that viewers would have been misled by the reference, on a graphic and in a script line in this programme, to a company called “Toucan” into believing that her company, Toucan Telemarketing Ltd was facing regulatory action by Ofcom, it believed that it had “no option but to refer to the company being investigated by Ofcom as “Toucan”, because “Toucan” was the company’s trading name.

The broadcaster noted that many companies are known by their trading names and that while it recognised “the potential for confusion” it believed that a description of the company as “anything other than Toucan would have misled viewers”.

The BBC commented that it had been covering the silent calls issue since 17 June 2005 and that its report on 4 November 2006 had been prompted by an update to the competition bulletin on Ofcom’s investigation into the problem of silent calls[(-4-)]. The BBC noted that in fact at the time of the report Toucan (the telecommunications provider) had already been sold to Pipex Communications and so the item on Breakfast would have been “factually inaccurate” if it had referred to the company receiving an Ofcom notification for silent calls as “IDT Direct Ltd. (trading as Toucan)”. The broadcaster added that had it done so it would also have been unfair to IDT (the parent company which had just sold the UK telecommunications provider known as Toucan).

Using two illustrative examples (from the Financial Times and the Independent, respectively) the BBC noted that because newspapers have more space they were “better able to explain the true situation”, i.e. that Pipex had purchased the UK telecommunications provider known as Toucan. The BBC noted that these newspapers and others chose to “refer to the company as Toucan”. The broadcaster reinforced its point about the widespread understanding of Toucan as a telecommunications brand by noting that in an interview included in an edition of Breakfast broadcast on 1 November 2005, Joseph Blass, then the MD of Toucan the telecommunications provider, had asked that his name caption indicate that he was: “Joseph Blass, Managing Director, Toucan”.

The broadcaster also commented that material from this earlier report demonstrated that, in contrast to the assertion within Ms Bates’ complaint, Toucan the telecommunications provider was a telemarketing company.

Having reiterated its acknowledgement of “the potential for confusion between Toucan and other similarly named companies” the BBC observed that a Companies House search had found 90 companies with names that begin with Toucan, eight of which had names that suggested they might be involved with telemarketing.

It commented that while it did not know if “Ms Bates or anyone else connected with her company was aware of the better known Toucan when they chose the name Toucan Telemarketing Ltd.” her website showed that it was first posted in 2004, which indicated that “the potential for confusion had existed for some considerable time before the item was broadcast in November 2006.”

Finally, the BBC stated that in light of “all the material factors” and its “general obligation to ensure that its news coverage is informative, relevant and intelligible, Breakfast had no option but to describe the company facing Ofcom sanctions as “Toucan””. It added that “in doing so it did not present, disregard or omit any facts in a way that was unfair to Toucan Telemarketing Ltd”.

Decision

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

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

The case was considered by Ofcom’s Executive Fairness Group which considered the complaint and the broadcaster’s response, together with a recording of the programme as broadcast, a recording of an earlier broadcast relating to Toucan the telecommunications provider, and Ofcom’s complaints bulletin for its investigation into silent calls

Ofcom observed that the report on Breakfast had identified the telecommunications provider known as Toucan as “Toucan” in both an on screen and a verbal reference, and that in neither instance had the BBC indicated the name of the company which owned Toucan the telecommunications provider. Ofcom also noted that Pipex Communications plc acquired IDT Direct Ltd, a UK-based telecommunications provider which traded as Toucan, from IDT Telecom, a subsidiary of the IDT Corporation, in October 2006. Since that date Pipex Communications has maintained the Toucan brand. At the time of the broadcast therefore the company which owned Toucan the telecommunication provider was Pipex Communications rather than IDT as indicated by the complainant.

When considering this complaint Ofcom noted that while it is entirely appropriate for programme makers to exercise editorial freedom they must also ensure that no unfairness results for those directly affected by programmes. “Before broadcasting a factual programme, including programmes examining past events, broadcasters should take reasonable care to satisfy themselves that: material facts have not been presented, disregarded or omitted in a way that is unfair to an individual or organisation.” (Practice 7.9 of the Ofcom Broadcasting Code).

Ofcom noted the BBC’s acknowledgment that there was the “ potential for confusion” between Toucan the telecommunications provider and the large number of other companies with the word Toucan in their name (including Toucan Telemarketing Ltd.). Ofcom also took account of the fact that the telecommunication provider notified by Ofcom is generally known as Toucan and of the evidence provided to this effect by the BBC (namely references to Toucan the telecommunications provider in the press and the name used by the telecommunications provider’s former managing director).

Ofcom considered that many companies are known to the general public by their trading names alone and not by the names of the companies which own or manage them. It also recognised that the name Toucan appears to be popular with businesses across a range of sectors, and that from the full names of some of these companies it appears that a number of them may well engage in marketing (including potentially telemarketing), either on their own behalf or as a service which they offer to other businesses.

Within her complaint Ms Bates argued that confusion between her company and Toucan the telecommunications provider had arisen because the BBC had referred to Toucan “as a marketing company when they so clearly are not”. In relation to this aspect of the complaint, Ofcom observed that the transcript of the programme showed that the only reference to marketing within the report related to the type of company which generally makes silent calls (i.e. “telemarketing companies using automated dialling systems”) and not to Toucan the telecommunications provider.

Ofcom noted that at no point in the report did the BBC mention Ms Bates’ company Toucan Telemarketing Limited, and that therefore the broadcast was very unlikely to have materially changed anyone’s opinion of the company and thereby resulted in unfairness to it.

Taking all of the above into account, Ofcom considered that the broadcaster took reasonable care when naming the company. As noted above, the report did not refer to Toucan Telemarketing Ltd, Ms Bates’ company, it referred to “Toucan”, which is the trading name of Toucan the telecommunications provider. In doing so Ofcom found that the broadcaster had behaved in a reasonable manner and this did not result in unfairness to the complainant and her company.

Accordingly, Ofcom has not upheld Ms Bates’ complaint of unfairness.

Footnotes:

4.- The most recent version of this competition bulletin can be found at: http://www.ofcom.org.uk/bulletins/comp_bull_index/comp_bull_ocases/open_all/cw_905/. The Ofcom “release” referred to by the BBC is the update to this Bulletin published on 3 November 2006.

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