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Broadcast Bulletin Issue number 89 - 16|07|07

Standards Cases

Notice of Sanction

British Broadcasting Corporation (“BBC”)
Blue Peter, 27 November 2006, BBC1, 17:00 and CBBC, 18:30

On 9 July 2007 , Ofcom published its decision to impose a statutory sanction on the BBC for breaches of Rules 2.11 (competitions should be conducted fairly) and 1.26 (due care of people under eighteen) of Ofcom’s Broadcasting Code.

Ofcom has found that these Rules were breached in the ‘live’ transmission of Blue Peter at 17:00 . During a premium rate telephone competition conducted as part of the programme, technical problems prevented genuine callers being put to air to answer the competition question. Instead, a child visiting the studio was asked to call in and pose as the ‘winner’ of the competition.

A further breach of Rule 2.11 occurred when the same programme was repeated later that day on CBBC. Despite the fact that the competition had ended in the ‘live’ programme, a further 3,574 entrants called the premium rate telephone line to enter because the on-screen caption showing this number had not been sufficiently obscured.

For the reasons set out in the adjudication, Ofcom has imposed a financial penalty of £50,000 on the BBC, £45,000 of which has been imposed for the Code breaches during the ‘live’ programme on BBC1, and £5,000 for the further breach of Rule 2.11 during the repeat on CBBC.

The full adjudication can be found at:

http://www.ofcom.org.uk/tv/obb/ocsc_adjud/bbc.pdf

In Breach

The Green Guide to Life
BBC Radio 2, 14 April 2007, 13:00

Introduction

The Green Guide to Life is a half-hour comedy programme looking at the complications and confusion of modern day living and supported by material from various stand up comedians. Ofcom received two complaints from listeners who objected to offensive language being used during a comedy sketch featuring Jack Dee, who was heard to say: “What do you mean, fuck off”. This programme was broadcast at lunchtime on a Saturday.

Ofcom asked the broadcaster to comment in respect of Rule 1.14 of the Code (the most offensive language must not be broadcast before the watershed or when children are particularly likely to be listening).

Response

The BBC stated that the language complained of was completely inappropriate for broadcast at this time. It apologised unreservedly and further wished to explain how this error had occurred. The programme was made by an independent production company for an original transmission time of 22:30 and was delivered to the broadcaster without indicating that it contained extremely strong language. It was therefore not vetted before being scheduled in this slot. The broadcaster accepted that it should have been checked. In light of this incident they have instituted new compliance procedures to ensure that all programmes are reviewed in-house to ensure compliance.

Decision

The language complained of was clearly inappropriate for broadcast at a Saturday lunchtime on Radio 2 when children were particularly likely to be listening. The BBC accepted there was a breach of Rule 1.14. It is the clear responsibility of the broadcaster to ensure that all material, irrespective of who originally produced it, is suitable for broadcast and appropriately scheduled.

This error exposed a weakness in the broadcaster’s compliance procedures. Further this is not the first occasion on which inappropriate language has been transmitted on Radio 2. Ofcom therefore considers it appropriate to record a breach of the Code.

Breach of Rule 1.14

The Last Casino
Five, 23 March 2007, 15:30

Introduction

The Last Casino is a film about a teacher using his students to cheat a casino in order to pay off his debts. It was transmitted in Five’s regular weekday afternoon movie slot. A viewer complained to Ofcom that the word “fuck” was clearly audible on one occasion and that it was also included in the programme’s subtitles. Five was asked to comment in light of Rule 1.14 of the Code (offensive language before the watershed).

Response

Five responded that The Last Casino was edited thoroughly for afternoon transmission because the original version did contain some swearing. On viewing a copy of the film, Five suggested that the word complained of was not in fact audible and therefore disagreed with the complainant’s allegation that it was “clearly audible”.

With regard to the subtitling, Five explained that this service is provided by Independent Media Support (IMS) once Five has submitted the edited programme to them. In this instance, Five said that it was surprised to see that IMS had included the subtitle “fuck” and that it questioned the logic of doing so in a pre-watershed programme and not least because there was no question, in this instance, of anyone lip-reading the word on screen. Five said that its Broadcast Services department wrote to IMS requesting an explanation as to how this situation came about; asking what procedures were in place to prevent it from occurring. Five subsequently informed Ofcom that it will supply IMS with a list of unacceptable pre-watershed language in accordance with Ofcom guidance and that all subtitlers will report the existence of unacceptable words on pre-watershed programmes to their supervisor or traffic manager to be queried with Five.

Decision

Rule 1.14 of the Code states that “The most offensive language must not be broadcast before the watershed or when children are particularly likely to be listening”.

Ofcom checked the copy of the broadcast carefully. It judged that the spoken word “fuck” was barely audible, but noted that nevertheless the IMS subtitling team must have considered it audible enough to include in the subtitles. Irrespective of whether the inclusion of “fuck” in the subtitles was human error on the part of the subtitler, Ofcom is concerned that before this incident Five did not have agreed procedures in place with its contracted subtitle supplier to ensure that the most offensive language was automatically omitted before the watershed. Further, this appeared to only have been highlighted to Five as a result of this complaint. As the licensee, Five is responsible for the compliance of its broadcast content and it is therefore Five’s responsibility to ensure that any party providing a service to it regarding material intended for transmission does so in accordance with the requirements of the Code.

In this instance, the most offensive language was broadcast before the watershed. There was therefore a breach of Rule 1.14.

Breach of Rule 1.14

Build a New Life in the Country
Five Life, 7 May 2007, 20:00

Introduction

Five Life is a channel owned and operated by Channel 5 Broadcasting Ltd. (“Five”) and is available on digital terrestrial, cable and satellite. One viewer complained to Ofcom that an episode of Build a New Life in the Country transmitted at 20:00 on Five Life on 7 May 2007 contained the words “fuck”, “fucked” and “fucking”. Five was asked to comment, with regard to Rule 1.14 of the Code (offensive language broadcast before the watershed).

Response

Five said that Build a New Life in the Country was originally produced for transmission on the main Five channel after 21:00 and that when the decision was taken to schedule the programme in an earlier timeslot on Five Life a number of edits were made to remove the bad language and alter its length to fit Five Life’s schedule. It said that this edited version of the programme was known as the ‘B version’. This was approved for transmission from 20:00 . On the day that the schedules had to be submitted for publication in listings magazines, however, the planning team needed a programme of longer duration to complete the schedule on Five Life at 20:00 and the decision was therefore taken to replace the shorter ‘B version’ with the longer (and un-edited) ‘A version’.

Five said that it does have a number of procedures in place to ensure programmes are not inappropriately scheduled but that unfortunately, on this occasion, each of them failed as a result of various human errors. Five said this had highlighted a gap in its current compliance systems. The channel offered its sincere apologies to viewers who had been offended. It said that it had since taken a number of steps within its compliance and scheduling departments to minimise the risk of a repeat of this incident.

Decision

Rule 1.14 of the Code states that the most offensive language must not be broadcast before the watershed. In this case the language was clearly offensive and inappropriately scheduled before the watershed.

Ofcom notes Five’s explanation that this occurred through human and scheduling errors. However, it is a condition of the broadcaster’s licence that it has adequate and robust procedures in place to ensure compliance with the Code. Five Life had previously informed Ofcom that it had improved its compliance procedures following the broadcast of an inappropriate trailer in February 2007. Ofcom has therefore recorded a breach of Rule 1.14.

Breach of Rule 1.14

Blood on the Carpet
The Business Channel, 14 April 2007, 14:00

Introduction

The Business Channel is a business entertainment and lifestyle channel available on the Sky platform. A viewer complained to Ofcom that an episode of the former BBC programme Blood on the Carpet transmitted at 14:00 contained the words “fuck” and “fucking hell”.

The broadcaster was asked to comment in the light of Rule 1.14 of the Code which states that “the most offensive language must not be broadcast before the watershed...”

Response

The Business Channel responded that the broadcast of these words at this time was caused by an error in compliance and apologised. The person responsible (who no longer works for the company) failed to comprehend the significance of the watershed and assumed that the series, which had previously been broadcast on the BBC, was suitable for transmission at all times. It said that it has now recalled all broadcast master versions of this series to ensure that there is no recurrence of this issue. It also said that the task of checking and editing programmes bought in from third parties is being undertaken by a new company.

Decision

Ofcom has previously resolved with the broadcaster a complaint about offensive language in an episode of Blood on the Carpet transmitted on 30 December 2006 at 12:00 . On that occasion The Business Channel apologised, saying that the error occurred because it had recently launched and it intended to tighten compliance procedures by, for example, recruiting an experienced in-house compliance officer.

However, despite those assurances, Ofcom is concerned that offensive language has been broadcast again pre-watershed on The Business Channel, indicating that adequate compliance procedures have yet to be effectively implemented. Ofcom therefore views this repeated inclusion of offensive language in a pre-watershed programme as significant and is recording a formal breach of Rule 1.14 of the Code.

Breach of Rule 1.14

Police Patrol: Uncut
ITV4, 4 February 2007, 20:00

Introduction

Police Patrol is a fly-on-the-wall documentary series featuring car chases between police and suspected criminals, using real police camera footage.

Two viewers complained that they heard the word “fucking” being used by a police officer when reprimanding a suspect. The same word was included in the programme’s subtitles.

Ofcom asked ITV to respond with regard to Rule 1.14 (offensive language before the watershed).

Response

ITV apologised unreservedly and admitted that a human error had been made. The ‘uncut’ version of the programme was mistakenly scheduled for the 20:00 slot, instead of the more appropriately edited pre-watershed version. ITV noticed the error on transmission, and promptly took steps to audit and check records of the series.

Decision

By broadcasting the word “fucking” in this programme at 20:00 , ITV breached Rule 1.14 of the Code. The offence caused by this was compounded by the inclusion of the same word in the programme’s subtitles.

While Ofcom acknowledges ITV’s explanation for the oversight and apology and notes the fact that the broadcaster’s compliance team identified the error on transmission and took corrective action, it is nevertheless the licensee’s responsibility to ensure that robust and effective compliance procedures are in place to prevent errors of this nature occurring in the first instance.

In addition, we noted that on two different occasions during the past year, offensive language has been broadcast on ITV channels before the watershed in versions of programmes intended for broadcast post-watershed. While in those previous instances, Ofcom considered the matter, on balance, resolved, the repeated occurrence of this type of error resulting in offensive language being broadcast before the watershed is a matter which Ofcom takes seriously.

Breach of Rule 1.14

Note to Broadcasters

Compliance procedures and broadcast of unsuitable material before the watershed or when children are particularly likely to be listening

There has been an increase in the number of cases where material which was originally produced for a post-watershed timeslot has been transmitted unedited or inappropriately edited for transmission pre-watershed or when children are particularly likely to be listening. This material often contains unsuitable language or violence. In such cases broadcasters frequently explain such failures on scheduling and/or human error.

All broadcasters are therefore reminded that they are under a clear duty to ensure that robust procedures are in place, supported by a sufficient number of appropriately qualified and trained staff, to ensure full compliance with the Code. This obligation covers all aspects of programmes, including tasks such as sub-titling, which the broadcaster may choose to contract out to third parties.

Ofcom expects all broadcasters to check their compliance procedures regularly to confirm they are robust enough to fulfil this requirement. Failure to have adequate compliance procedures in place to ensure compliance with Ofcom’s codes is a serious matter and can lead to regulatory action being taken.

Fairness and Privacy Cases

Not Upheld

Complaint by Mischon de Reya Solicitors on behalf of Foxtons Limited
Watchdog, BBC1, 28 March 2006

Summary: Ofcom has not upheld this complaint. Mishcon de Reya Solicitors (“Mishcon de Reya”) complained to Ofcom on behalf of Foxtons Limited (“Foxtons”) that it was treated unfairly in that the programme: repeated all the malpractices allegedly committed in an earlier programme, Whistleblower, but only named Foxtons; one of Foxton’s offices was featured in the background and one interviewee was asked specifically what she though of Foxtons; and, it was not given an appropriate or timely opportunity to respond to the allegations made in the programme and a statement submitted to the programme makers was not referred to.

Ofcom found as follows:

Ofcom was satisfied that the programme would not have been likely to have left viewers in the impression that Foxtons was solely responsible for all the alleged acts and malpractices that were the focus of the earlier programme.
Ofcom acknowledged that Foxtons was named in the programme when members of the public were interviewed and that the exterior of one of its West London offices was featured in the background to those interviews. However, Ofcom was satisfied that the programme made it sufficiently clear to viewers that the report was about all the London-based estate agencies featured in the earlier programme and did not focus on a single company.
Ofcom considered that, the programme makers did provide Foxtons with an appropriate opportunity to respond to the issues that were to be raised in the programme. Further, Ofcom was satisfied that the programme did not suggest that the company had accepted that its employees had been involved in wrongdoing and Foxtons’ position was represented in a fair way. Ofcom found no unfairness to the company in this respect.

Introduction

On 28 March 2006 , BBC 1 broadcast an edition of the consumer affairs programme, Watchdog, which featured a short report about estate agents. The report followed an earlier programme, Whistleblower, broadcast on BBC 1 on 21 March 2006 , which investigated the practices of a handful of London based estate agents, including Foxtons.

At the beginning of the Watchdog report, one of presenters, Julia Bradbury, said that four and a half million people had watched the Whistleblower programme and that Watchdog had received 550 emails. These emails had “revealed satisfaction” at what the Whistleblower programme had exposed, namely, alleged wrongdoing by the featured estate agents.

Members of the public were filmed being interviewed by Julia Bradbury about whether or not they were surprised at what they had seen on the Whistleblower programme. The majority of the interviews shown in the programme were filmed on a West London High Street with a Foxtons’ office in the background. Secretly recorded footage (originally recorded for and shown in the Whistleblower programme) of a document bearing the Foxtons’ logo being doctored by a Foxtons’ employee was also included in the programme. Immediately after this footage, the presenter was shown asking a member of the public “What’s your opinion of Foxtons, having seen the programme?” The member of the public replied, “It’s … it’s fallen considerably, just put it that way”.

Brief footage (again, secretly recorded for and shown in the Whistleblower programme) of the interior of a Time 2 Move (another London-based estate agency) office was also shown in the Watchdog programme. The report concluded with a studio interview with Ray Hall the Director of Enforcement at the Office of Fair Trading on the regulation of estate agents.

On 24 March 2006, four days before the Watchdog programme was broadcast, Ms Denise Kelly, a producer for the programme, faxed a letter to Mr Karl Daly, a Foxtons employee, informing the company that the programme would feature a report about Foxtons after the response the programme makers had received from the public over the Whistleblower programme and that it intended to reflect and discuss the issues raised by the programme. The faxed letter also included a series of questions that the programme makers invited Foxtons to answer and an invitation for its Chief Executive, Mr Jon Hunt, to attend the studio for a live interview on the programme.

On 27 March 2006 , Ms Kelly sent an email to Mr Daly to confirm whether or not a decision had been made about Mr Hunt appearing on the programme and to ascertain whether or not the company had looked at the questions she had posed in her earlier correspondence. Later that day, Mischon de Reya Solicitors (“Mischon de Reya”) responded to Ms Kelly’s fax and email on Foxtons’ behalf. It said that Mr Hunt was unable to give an interview at such short notice and attached a statement which set out Foxtons’ position which it asked to be broadcast “in full” if the edition of Watchdog referred to Foxtons. The same statement had been given to the makers of the earlier Whistleblower programme. Mishcon de Reya told Ms Kelly that the statement answered most of her questions and that Foxtons was continuing its investigation into the allegations made about its employees featured in the Whistleblower programme and that it would be inappropriate for the company to comment. However, it said that Foxtons would take appropriate action against any employee found to have committed wrongdoing and asked the BBC for relevant footage.

The statement was not broadcast in full on Watchdog. However towards the end of the report, Ms Bradbury stated that “Now the companies involved say they’ve taken strong action in these cases”.

Mishcon de Reya complained to Ofcom on behalf of Foxtons that the company was treated unfairly in the programme as broadcast.

The Complaint

Mishcon de Reya’s case on behalf of Foxtons

In summary, Mishcon de Reya complained on behalf of Foxtons that it was treated unfairly in that:

a) Watchdog repeated all of the malpractices allegedly committed by a number of London based estate agents and criticised in the earlier Whistleblower programme, but only named Foxtons. Viewers would have been left to believe that Foxtons was solely responsible for all of the alleged acts;

b) One of Foxtons’ west London offices was featured in the background while members of the public were interviewed on their views on estate agents, in general, having seen the Whistleblower programme. One interviewee was asked specifically “what do you think of Foxtons now?”; and,

c) Foxtons were not given an appropriate or timely opportunity to respond to the allegations made in the programme. The statement given to the programme makers before the broadcast of the programme, along with further up to date material - such as the investigation by Foxtons into the allegations and its training of staff - given in the letters of 27 March 2006 , was not referred to.

The BBC ’s case

In summary, the BBC said that the report was not an orthodox Watchdog report that featured allegations against an individual company and sought an interview or statement in response. Its purpose was to gauge public reaction to revelations of [alleged] dishonesty about a number of estate agents featured in the Whistleblower programme and to move the story forward with a studio interview. The report’s focus was on whether the public felt that its trust in estate agents in general had been shaken.

The BBC noted that the short studio introduction made no reference to specific estate agents. The BBC also pointed out that a number of unanswered phone calls had been made by the programme makers to Foxtons’ Head Office.

In response to the specific heads of complaint, the BBC said that:

a) The complainant’s assertion that “viewers would have been left to believe that the company was solely responsible for the alleged acts” was not accepted. This ignored the widespread publicity the revelations made by the Whistleblower programme had enjoyed across the print and broadcast media (examples were provided to Ofcom). Even if viewers had not seen the media reports or the Whistleblower programme, the BBC said that they would have picked up other script references from the Watchdog programme itself that made it clear that the item was not a report into a single company. For example, in introducing the report, one of the programme’s presenters, Nicky Campbell , said that:

“The Whistleblower exposé of estate agents, some estate agents, struck a real chord with you” ;

and his co-presenter, Julia Bradbury, referred to viewers opinions on “some of the different agents featured on Whistleblower” and to “the companies” taking “strong action”.

The BBC said that Watchdog did not repeat all the malpractices allegedly committed by a number of London based estate agents as alleged by the complainant. For instance, it did not refer to the breach of data protection laws when personal information held by mortgage brokers Alexander Hall Limited was passed on to Foxtons without the client’s permission.

The programme makers believed that they had gone to sufficient lengths to make it clear that the report dealt with revelations about more than one company.

b) The filming of members of the public took place at various locations in west London , including the vicinity of a number of estate agents where the programme makers hoped to find people with an interest in the topic. A single reference to Foxtons was made in a neutral, non-leading question by Ms Bradbury: “What’s your opinion of Foxtons, having seen the programme?” This question immediately followed footage that showed a Foxtons’ employee “forging signatures” and doctoring documents and was, in the BBC ’s view, included in the correct context.

The BBC said that the Foxtons logo could just be seen across the street in the background to some of the footage taken of members of the public. However, its distance from the camera meant that it was not particularly eye-catching and it did not have a prominence which would have led viewers to believe that the whole of the item was dealing exclusively with Foxtons.

The BBC said that although it was customary to give companies five working days to respond to new allegations raised by Watchdog, in this case, the programme was reflecting criticism that had already been put to Foxtons and where there had been a response.

The BBC was satisfied that Foxtons was given an adequate and timely opportunity to respond by both programme teams. After the Whistleblower team revealed its findings to Mr Hunt, there was time for his legal team to look at the matter and send hand-delivered letters to the programme’s two undercover reporters raising the possibility of personal lawsuits before the programme was broadcast. Given this reaction and the widespread publicity already generated by that programme, the Watchdogproductionteam assumed that Foxtons’ publicity team would be in full “fire-fighting” mode.

The BBC said that Ms Kelly first contacted Foxtons’ head office on the afternoon of Friday, 24 March 2006 and spoke to “Emily” in what she understood to be the company’s press office. Ms Kelly explained that the programme was intending to broadcast a follow-up report to the Whistleblowerprogramme and would like to interview Mr Hunt. She was told that such an inquiry needed to go through Mr Daly who was not in the office. She was also told that both Mr Hunt and his personal assistant were out of the office, but was assured that her query would be passed on to Mr Daly. After receiving no further response that day, Ms Kelly sent the list of questions by fax later that evening.

c) The BBC said that Ms Kelly did not hear any more from Foxtons’ head office. On 27 March 2006 , she emailed the company at 13:18 , asking if anyone had had a chance to look at her questions and make a decision over her interview request. An email reply was sent to her by Mischon de Reya at 18:47 that evening and it was only then that the programme makers were made aware that Mr Hunt was unable to attend a live interview. The BBC acknowledged that Mr Hunt may not have been able to attend an interview at short notice, however, given the seriousness of the public relations problem faced by the company, it said that it would not have been unexpected had Mr Hunt cancelled other engagements or for another company spokesperson to have stood in for him.

The BBC said that Foxtons had chosen not to respond to the written questions submitted by Ms Kelly and that not all of them were covered in the company’s statement to the makers of Whistleblowerand re-copied to the Watchdog production team. The programme was not, therefore, able fully to report the company’s view on public trust in estate agents. However, the BBC did not accept that there was no reference to the material supplied. During the interview with Mr Ray Hall, Director of Enforcement at the Office of Fair Trading, the presenter said:

“the companies involved say they’ve taken strong action in these cases”.

This, the BBC said, was a fair summary of Foxtons’ position at that time. In fact, it could be interpreted as overstating its position, given that the statement provided by Mishcon de Reya on 27 March 2006 made no reference to any action taken as a result of the Whistleblower programme revelations other than an investigation into them. The statement also asserted that the allegations made by the Whistleblower programme had been portrayed out of context but no detail to substantiate this was given. The accompanying letter from Mishcon de Reya made clear that the investigations were still ongoing and that, therefore, it would be inappropriate to report any preliminary findings. In these circumstances, the BBC did not believe that Watchdog failed to fairly to represent Foxtons’ position as set out in the pre-transmission correspondence of 27 March 2006.

Decision

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

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

This case was considered by Ofcom’s Executive Fairness Group. The Group had before it a complaint from Mishcon de Reya on behalf of Foxtons and written submission in response from the BBC . It viewed a recording of the programme as broadcast and read a transcript of it.

The Group’s decision is set out below, by reference to each of the heads of Mischon de Reya’s complaint made on Foxtons’ behalf.

a) Mishcon de Reya complained that only Foxtons was named in the Watchdog programme that repeated all of the malpractices allegedly committed by a number of London based estate agents and criticised in the earlier Whistleblower programme. Mishcon de Reya said that Watchdog viewers would have been left to understand that the company was solely responsible for all of the alleged acts and practices referred to in the programme.

By examining the recording of the programme and reading a transcript of it, Ofcom noted that both Watchdog presenters referred to “estate agent s” (Ofcom’s emphasis) three times while introducing the report. Further references were made in the programme to “agent s” (Ofcom’s emphasis) and to “companie s” (Ofcom’s emphasis). Also, Ofcom noted that the programme included secretly recorded footage of the interior of a Time 2 Move office, another London-based estate agent, and its logo, “T 2M”, was visible in this footage. The office front to another London-based estate agency was also featured in the programme as background to one of Julia Bradbury’s interviews with a member of the public.

Ofcom appreciated that there were references to Foxtons in the programme. It noted the inclusion of the secretly recorded footage of a Foxtons employee doctoring documents headed with a part of the company’s logo; that a Foxtons office was shown as background to interview footage with members of the public; and that Julia Bradbury specifically mentioned Foxtons in her question to one of the members of the public. However, Ofcom recognised that the footage of the office was taken from some distance and that the company’s logo was not prominent. Also, footage of two other London-based estate agency offices was included and the references made in the programme were clear that the report focused on more than one London-based estate agency (see above).

In these circumstances, Ofcom was satisfied that the programme would not have been likely to have left viewers in the impression that that Foxtons was solely responsible for all the alleged acts and malpractices that were the focus of the earlier Whistleblower programme. In Ofcom’s view, viewers were likely to have understood the Watchdog report to be making a generalised reference to the handful of London-based estate agencies featured in the Whistleblower programme rather than solely singling out Foxtons as an example. Notwithstanding the extent of the printed press and other media coverage of the instances of alleged wrongdoing exposed in the Whistleblower programme, the programme’s imagery and commentary itself made it sufficiently clear, in Ofcom’s view, that the Watchdog programme was reporting on all the London-based estate agencies featured in the Whistleblower programme and not just a single company.

In these circumstances, Ofcom found no unfairness to Foxtons in this respect.

b) Mischon de Reya complained that the exterior of one of Foxtons’ west London offices was featured in the background while members of the public were interviewed about estate agents generally after watching the Whistleblower programme. One interviewee was asked for their opinion of Foxtons. This fostered the impression, unfairly, that the company was solely responsible for the alleged acts and practices referred to in the programme.

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. However, Ofcom is also aware of the broadcaster's right (subject to the provisions of the Code) to comment and take particular viewpoints on the subjects of broadcast programmes.

Ofcom acknowledged that Foxtons was the only company named in the programme by Julia Bradbury when interviewing members of the public and that the exterior of one of its West London offices was featured in the background to those interviews. However, Ofcom also noted that the office front of another London-based estate agency was shown (though its name was not readily recognisable) in footage of an interview by the presenter with another member of the public. Ofcom considered that this footage, along with secretly recorded footage of the interior of the “Time 2 Move” agency, and the programme’s commentary would have added to the viewer’s perception that the focus of the report was on more than one estate agent rather than that the focus of the report was solely on Foxtons (see (a) above).

In these circumstances, Ofcom was satisfied that the programme made it sufficiently clear to viewers that the report was about all the London-based estate agencies featured in the earlier Whistleblower programme and that viewers would were unlikely to have understood that the report focused on a single company, and Foxtons, in particular. Ofcom, therefore, found no unfairness to the company in this respect.

c) Mischon de Reya complained that Foxtons was not given an appropriate or timely opportunity to respond to the allegations made and its statement given to the programme makers before the broadcast of the programme was not referred to.

Ofcom requires that if a programme alleges wrongdoing or incompetence or makes other significant allegations, those concerned should normally be given and appropriate and timely opportunity to respond. Also, where it is appropriate to represent the views of a person or organisation that is not participating in the programme, this must be done in a fair manner.

Accordingly, Ofcom first considered whether or not the programme made significant allegations about the company. It was clear from the Watchdog programme itself that the BBC ’s stated purpose of the programme was to “gauge public reaction to revelations of dishonesty about a number of companies featured in the Whistleblower programme” and it was not disputed by Foxtons that it was one of the companies featured. Ofcom also considered: the use of the secretly recorded footage of a Foxtons’ employee doctoring a document; the use of the exterior of one of its offices as a backdrop to interview footage; and the use of the company’s name by Ms Bradbury. In these circumstances, Ofcom considered that (although it was clear that the allegations in the programme concerned all the London-based estate agencies featured in the Whistleblower programme and not just Foxtons) the programme was nevertheless capable of adversely affecting the reputation of Foxtons (as one of those estate agents). It was therefore incumbent on the programme-makers to offer Foxtons an appropriate opportunity to respond to the allegations. When considering what might constitute an appropriate opportunity in these circumstances Ofcom took account of the fact that in its view (as stated above) the programme was clearly reporting on a number of London-based estate agencies and did not unduly focus on Foxtons.

Ofcom noted that the BBC admitted that it was customary for the Watchdog production team to give companies five working days in which to respond to new allegations that the programme would raise. However, in this instance, only two working days were given. Ofcom also noted the BBC ’s reason for only giving Foxtons two working days notice; namely, that the programme reflected criticism that had already been put to the company when making the Whistleblower programme and that the company had responded to that criticism in a written statement. Ofcom also noted the exchange of correspondence between the BBC , Foxtons and Mischon de Reya between 24 - 27 March 2006 before the broadcast of the Watchdog programme and to the comments made by the presenters in the programme itself. The BBC claimed that the presenters fairly summarised Foxtons’ position at the time of broadcast.

Ofcom took the view that it would have been preferable, if not at least best practice, for the programme makers to have given Foxtons the customary five working days in which to respond. However, it acknowledged that the circumstances surrounding the report were different, in that Foxtons had already been made aware of the issues that would be addressed by the programme as it revisited the issues raised by the earlier Whistleblower programme. In effect the Watchdog programme was a follow-up report. Ofcom noted that Foxtons, through Mischon de Reya, was able to reply to Ms Kelly’s faxed letter of 24 March 2006 ; to resend the statement that it had already prepared for the Whistleblower programme; and to choose not to answer all the questions put to it by the programme makers. Although two working days may not have given the company enough time to arrange for Mr Hunt to attend a live studio interview for the programme, it would have been open to Foxtons to have put forward another spokesperson for the company.

Taking these factors into account, Ofcom considered that, the programme makers did take, under these particular circumstances, reasonable steps to provide Foxtons with an appropriate and timely opportunity to respond to the issues that were to be raised in the programme. How the company chose to respond to the programme makers’ request for a response to all its questions or the invitation for a live studio interview with Mr Hunt was a matter for it and it alone. Ofcom, therefore, found no unfairness to Foxtons in this respect.

Ofcom then went onto consider whether or not the statement provided by Foxtons to the programme makers before the broadcast of the programme was referred to in the programme and, if not, whether this amounted to unfairness.

Ofcom noted that the company chose, through Mischon de Reya, to reissue a statement that had been initially prepared for the Whistleblower programme. The statement itself, while giving a general outline about Foxtons, also referred to the fact that most of the employees featured in the Whistleblower programme had left the company before it was made aware of the allegations of wrongdoing. Also, the letter dated 27 March 2006 which accompanied the statement contained further information that stated Foxtons’ position at the time. Some of this information answered two of the questions asked by Ms Kelly in her faxed letter of 24 March 2006; namely that Foxtons was conducting an ongoing investigation into the allegations and that it would deal with any employee found to have committed wrongdoing accordingly; and, that it would include “break-clauses” in its tenancy agreements if its client required it.

By examining a recording of the programme and the transcript of it, Ofcom noted that the only reference made to either Foxtons’ original statement or the response sent by Mishcon de Reya on its behalf on 27 March 2006 was Julia Bradbury’s statement “Now the companies involved say that they’ve taken strong action in these cases…”.

Ofcom also noted the BBC ’s assertion that the presenter’s statement was a reference to the material supplied by Mishcon de Reya on 27 March 2006 and that it fairly represented Foxtons position at the time.

Programme makers can quite legitimately select or edit material provided by way of a written statement for inclusion in a programme. This is an editorial decision. It is unrealistic for a company or individual to expect a broadcaster to cede editorial control and necessarily include a written statement in full. The programme makers must, however, ensure that where it is appropriate to represent the views of a person or organisation it is done in a fair manner.

In this case the BBC chose to summarise Foxtons’ response by the words:

“Now the companies involved say they’re taken strong action in these cases…”

Ofcom noted that the BBC accepted in its response to the complaint that the presenter’s statement could be interpreted as “over-stating” Foxtons’ position as outlined in Mishcon de Reya’s response.

However, Ofcom noted that the comment sought to summarise the industry’s response in generic and broad terms (in keeping with a programme dealing with a number of companies and not just one). The comment was also made towards the end of the programme and not in obvious proximity to the specific mention of Foxtons in the vox-pop. Further, in Ofcom’s view the meaning of the comment was arguably wide enough in scope to encompass the internal investigations undertaken by Foxtons (as well as cover any action taken by other companies).

Taking the factors detailed above into account, Ofcom considered that Julia Bradbury’s statement did not suggest that the company had accepted that its employees had been involved in wrongdoing and Foxtons’ position was represented in a fair way. Ofcom found no unfairness to the company in this respect.

Accordingly, the complaint of unfair treatment in the broadcast of the programme was not upheld.

Complaint by Howells Solicitors on behalf of Mr Andrew Jones
Shops, Robbers and Videotape, BBC1, 17 May 2006

Summary: Ofcom has not upheld this complaint of unwarranted infringement of privacy in both the making and broadcast of the programme.

This programme followed members of South Yorkshire Police carrying out their duties in and around Sheffield . Mr Jones was filmed being stopped and subsequently arrested by the police.

Howells Solicitors complained on Mr Jones’s behalf that his privacy was unwarrantable infringed in that he did not give his permission for the programme makers to film his arrest and that he had been filmed while in the police station despite his request not to be. Also, footage of him being stopped and arrested was shown in the programme without his permission.

Ofcom was satisfied that Mr Jones was filmed openly in a public place and that in the particular circumstances of this case in which he had been arrested for committing an offence at the time of filming, he did not have a legitimate expectation of privacy in relation to either the recording of footage in those circumstances nor the broadcast of that footage in which his face was obscured. Also, Ofcom was satisfied that having been arrested for committing an offence, in the particular circumstances of this case, Mr Jones did not have a legitimate expectation of privacy in relation to filming at the police station.

Introduction

On 17 May 2006 , the BBC broadcast Shops, Robbers and Videotape which reported

the experiences of a number of South Yorkshire police officers while carrying out their duties in policing the shopping centres in and around Sheffield . Part of the programme focused on the policing of Sheffield city centre at night in areas where large numbers of people congregated after the pubs and clubs closed.

During this part of the programme, Mr Andrew Jones was shown being stopped for driving the wrong way down a one-way street and being questioned by the police who also suspected him of drink-driving. He was filmed by the programme makers while they accompanied a police patrol. Mr Jones was subsequently arrested for refusing to provide a breath sample for testing and was taken to a police station where he was also filmed. However, the footage recorded in the police station was not shown in the programme broadcast. Mr Jones was not named in the footage included in the programme and his face was obscured.

Howells Solicitors complained on Mr Jones’s behalf that his privacy was unwarrantably infringed in both the making and broadcast of the programme.

The Complaint

Howells Solicitors’ case made on behalf of Mr Andrew Jones

In summary, Howells Solicitors complained on behalf of Mr Andrew Jones that his privacy was unwarrantably infringed in the making of the programme in that:

a) He did not give his permission for the programme makers to film him during his arrest in Sheffield city centre and that he had specifically requested not to be filmed while at the police station. However, the programme makers continued to film him despite his request.

Howells Solicitors also complained that Mr Jones’s privacy was unwarrantably infringed in the programme as broadcast in that:

b) He did not give his permission for the footage taken of him being stopped by the police in the street and his subsequent arrest to be broadcast in the programme.

The BBC ’s case

In summary and in response to the privacy complaint regarding the making of the programme made on behalf of Mr Jones, the BBC said that:

a) The programme was part of a series which followed the work of Britain’s police and that dealt with important contemporary matters including violence, shoplifting, sexual harassment, anti-social behaviour and drink-driving. By showing a range of situations and outcomes in the programme it was, according to the BBC , essential in giving a balanced account of police work and the difficulties faced by police officers while on duty. The BBC said that if the public was to understand the nature of police work, it was necessary, to film each step of the process, from arrest, to charge and, possibly, to court and conviction, as it occurred. The BBC said that a decision to stop filming and, as a result, miss an important event, could have an inappropriately restrictive effect on broadcasters’ and journalists’ freedom to report on the work of the police, something that was greatly in the public interest. However, the BBC acknowledged that this did not mean that the potential for an unwarranted infringement of privacy should be ignored, or that filming should proceed with no regard for the concerns of those filmed.

In the circumstances of this particular case, the BBC said that Mr Jones had been stopped driving the wrong way down a one-way street late at night. He had, self-evidently, committed one offence and the police officers at the scene also suspected him of having committed another offence, namely that of drink-driving. In these circumstances, the BBC believed that there was sufficient justification for the programme makers to continue filming. Further justification for filming was provided by Mr Jones’ refusal to provide a breath sample and his subsequent arrest. As the arresting police officer made clear in the programme, failure to provide a breath sample was regarded by the law with the same gravity as the offence of drink-driving itself.

The BBC accepted that Mr Jones had expressed concern at being filmed in the police station, though his concern had been directed at the police officers rather than the programme maker. The BBC said that the circumstances of this kind of programme making were such that it may be appropriate to continue filming in spite of the wishes of those involved. It said that the arguments that applied to the filming in the police station were the same as those that applied to filming in the street, namely that there was justification in filming Mr Jones in that it was in the public interest to demonstrate the work of the police in such situations.

In summary and in relation to the privacy complaint made regarding the footage broadcast in the programme made on behalf of Mr Jones, the BBC said that:

b) The content of the programme as broadcast was the key to this issue. During the editing process, the BBC said that the programme makers carefully weighed the considerations relating to Mr Jones’s privacy. It was decided to obscure his identity in the material filmed in the street and not to use the material filmed in the police station. The BBC said that it was Mr Jones’s own behaviour that had attracted the attention of the police who, by arresting him, demonstrated their belief that he had committed another offence in addition to driving the wrong way down a one-way street. The BBC said that the public interest in the work of the police was sufficient to warrant the programme’s approach.

Decision

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

In Ofcom’s view, the line to be drawn between the public’s right to information and the citizen’s right to privacy can sometimes be a fine one. When considering and adjudicating on a complaint of unwarranted infringement of privacy, Ofcom first determines whether in its view the complainant had a reasonable expectation of privacy in the circumstances. This may simply depend on the nature of the information or image itself or on a combination of factors. Ofcom then addressed itself to two distinct questions: First, has there been an infringement of privacy? Second, if so, was it warranted? (Rule 8.1 of the Code).

This case was considered by Ofcom’s Executive Fairness Group. The Group had before it a complaint from Mr Jones’s solicitors (Howells Solicitors) and written submissions, with supporting material, in response from the BBC . It viewed a recording of the programme as broadcast and read a transcript of it. It also viewed the unedited footage of Mr Jones in Sheffield city centre and at the police station and read transcripts of both.

a) The Group first considered Mr Jones’s complaint that he did not give his permission for the programme makers to film him during his arrest in Sheffield city centre and that he had specifically requested not to be filmed while at the police station. However, the programme makers continued to film him despite his request.

Filming in the street

Before considering whether or not Mr Jones’s privacy was infringed during his arrest in Sheffield city centre, Ofcom first considered whether or not he had a legitimate expectation of privacy in the circumstances he found himself in, that is while being filmed in the street after being stopped by the police for driving the wrong way down a one-way street and subsequently arrested for refusing to give a breath sample.

Ofcom noted from the unedited material filmed of Mr Jones that the filming was conducted openly and in a public place, that is, on a public street in Sheffield city centre. It also noted that the programme makers had not obstructed Mr Jones when he was being dealt with by the police and that the cameraman had got out of the police car when Mr Jones claimed that the camera was disturbing him.

Ofcom noted that the context of the programme was an examination of the work of the police which was of importance to the public’s understanding of the range of situations dealt with by the police. Ofcom also considered the nature of the footage recorded of Mr Jones. In Ofcom’s view, in a situation where a person is filmed either committing an offence or when arrested for an offence, that person’s expectation of privacy is diminished in light of their actions. In Mr Jones’s case, Ofcom considered that by committing an offence for which he was arrested Mr Jones’s expectation of privacy was lessened in such circumstances.

Taking these factors into account, namely that Mr Jones was filmed openly in a public place and that he had been been engaged in activity for which he was arrested at the time of filming, Ofcom was satisfied that Mr Jones did not have a legitimate expectation of privacy in relation to the filming. Ofcom therefore found there was no infringement of his privacy in relation to the footage recorded of his arrest in the city centre.

Filming in the police station

Ofcom then turned to the complaint regarding the footage recorded at the police station. Before considering whether or not Mr Jones’s privacy was infringed, Ofcom first considered if he had a legitimate expectation of privacy in these circumstances, namely, when in custody in the police station.

Ofcom examined the unedited footage that was taken in police station and read a transcipt of it. Ofcom noted that when giving his personal details to one of the arresting police officers, Mr Jones had requested “can you get the camera off me please” to which a police officer answered “no”.

Ofcom considered that Mr Jones had a heightened expection of privacy when in the police station, a place where the general public does not have unrestricted access. It took the view that being arrested and taken to a police station was a sensitive situation in which Mr Jones could have legitimately expected a certain degree of privacy, especially when he had requested not to be filmed. However, Ofcom considered that in being engaged in activity which resulted in arrest, Mr Jones’s expectation of privacy was diminished by that fact.

Ofcom appreciated that there was a fine balance to be drawn in deciding whether Mr Jones had a legitimate expectation of privacy while in the police station. However, having been arrested for an offence, in Ofcom’s view his expectation of privacy, in the sensitive location of the police station, was significantly diminished. In the circumstances of this particular case and on balance, Ofcom was satisfied, having taken all the factors referred to above into account that the Mr Jones did not on balance have a legitimate expectation of privacy in relation to the recording of the programme.

Accordingly Ofcom that Mr Jones’s privacy was not infringed in the making of the programme in either of the two locations. It did not therefore go on to consider whether any infringement was warranted.

b) Ofcom went on to consider Mr Jones’s complaint that h e did not give his permission for the broadcast of the footage taken of him being stopped and arrested by the police in the street.

Before considering whether or not Mr Jones’s privacy was infringed, Ofcom first considered if he had a legitimate expectation of privacy concerning the broadcast of this footage.

Ofcom was satisfied that in the particular circumstances of this case in which Mr Jones had committed an offence for which he was arrested, he did not have a legitimate expectation of privacy in relation to the broadcast of the material recorded of him in the street (discussed above at Decision head a)). Furthermore Ofcom was satisfied that in the broadcast the programme makers had taken steps to conceal Mr Jones’s identity: his face was obscured in the programme and that he was not otherwise identified.

In view of these considerations Ofcom found that Mr Jones did not have a legitimate expectation of privacy in this regard and so his privacy was not infringed in the broadcast of the programme. Ofcom did not therefore go on to consider whether any infringement was warranted.

Accordingly, Howells Solicitors’ complaint made on behalf of Mr Jones that his privacy was unwarrantably infringed in both the making and broadcast of the programme was not upheld.

Complaint by Mrs Tahira Hussain
Sky News Report: Forced Marriages, BSkyB, 29 March 2006

Summary: Ofcom has not upheld this complaint of unfair treatment and unwarrantable infringement of privacy.

The programme reported on forced marriages and featured three of Mrs Tahira Hussain’s sisters who alleged that they had either been forced into marriage or had run away from home for fear of being forced into marriage.

Mrs Hussain complained that she was treated unfairly in that her family name and home were revealed in a way that associated her with her sisters. Mrs Hussain also complained that her privacy was unwarrantably infringed in the broadcast of the programme in that it revealed her family home address and her family name.

The broadcaster, BSkyB, argued that it was not unfair, nor did it unwarrantably infringe Mrs Hussain’s privacy, in its inclusion of the Hussain family name as it was used to identify her two sisters who appeared openly in the report. It also said there was insufficient information in the programme to identify the address of the family home.

Ofcom found that the identification of Mrs Hussain as belonging to the same family as her sisters, who appeared in the programme, did not result in unfairness to Mrs Hussain as there was no criticism of her in the programme nor any implication that she had been either subjected to a forced marriage or had been involved in her sisters’ marriages. Ofcom also found that the information disclosed in the programme, in relation to the family home, was insufficient to identify the location or address of Mrs Hussain’s property and therefore resulted in no unfair treatment nor unwarrantable infringement of privacy. Furthermore, Ofcom was satisfied that her family name was already in the public domain and that it was reasonable for the programme makers to have used the family name in connection with her sisters who agreed to appear in the programme. Ofcom therefore found that Mrs Hussain’s privacy had not been unwarrantably infringed in the programme as broadcast.

Introduction

On 29 March 2006 , BSkyB broadcast a news report about forced marriages, that is where one person is tricked or threatened into marriage against his or her will, often as a result of family pressure. The report focused in particular on three sisters: Mrs Zaira Steele (née Hussain, and referred to as Zaira Hussain in the programme), Ms Shagofta Hussain and ‘Saima’ (who, although she originally agreed to take part in the programme, later changed her mind and her identity was obscured in the programme). The sisters recounted their experiences of being forced into marriage (or, in the case of Ms Shagofta Hussain, of running away from home for fear of being forced into marriage) and expressed their thoughts about the treatment they received from their parents and husbands.

In the programme Mrs Steele alleged that she had been forced to marry at the age of 16. Her Pakistani husband had joined her two years later in the UK . She also alleged that her husband had abused her and that her parents had not helped her when she asked them. Mrs Steele left her first husband and was now married to a man of her own choice. The report also alleged that ‘Saima’ was rescued from a forced marriage in Pakistan and that their younger sister, Ms Shagofta Hussain, had run away from home when she was 15 years of age for fear of being forced into marriage.

The programme referred to the Hussain family home as being located in Peterborough .

Mrs Tahira Hussain is a sister of the three women referred to above. Mrs Hussain did not take part in the programme herself, nor was she referred to.

Mrs Hussain complained to Ofcom that she was treated unfairly in the programme as broadcast and that her privacy was unwarrantably infringed in the broadcast of the programme.

The Complaint

Mrs Hussain’s case

In summary, Mrs Hussain complained to Ofcom that she was treated unfairly in that:

a) her family home and her family name were revealed in the programme and that this was unfair to her in that it implied that she was in some way linked with the forced marriages alleged by her sisters.

In summary, Mrs Hussain complained to Ofcom that her privacy was unwarrantably infringed in the broadcast of the programme in that:

b) her family name was revealed and her family home address was shown in the programme without consent.

BSkyB’s case

In summary, and in response to Mrs Hussain’s fairness complaint, BSkyB said that:

a) While the report showed the outside of her parents’ house, what was shown was not sufficient to reveal the address of the property to viewers. Accordingly, showing the outside of the house in this way was not unfair to Mrs Hussain. BSkyB also said that it was not unfair to Mrs Hussain for the report to reveal her family name as it was used to identify Mrs Hussain’s two sisters who had agreed to be identified and willingly participated in the programme.

In summary, and in response to Mrs Hussain’s privacy complaint, BSkyB said that:

b) BSkyB said that Mrs Hussain’s privacy was not infringed in the broadcast of the programme by the inclusion of footage of the outside of Mrs Hussain’s parents’ house as it was not sufficient to identify the address of the property, and only disclosed that it was in Peterborough .

BSkyB also said that the inclusion of the family name in the report did not infringe Mrs Hussain’s privacy as the report identified the two sisters who had agreed to be identified and willingly participated in the programme.

BSkyB argued that should Ofcom consider that the disclosure of the family name constituted an infringement of Mrs Hussain’s privacy, such infringement was warranted. The broadcaster argued that to have concealed the family name would have wrongly implied that Mrs Hussain’s two sisters, Mrs Steele and Ms Shagofta Hussain, who participated openly in the programme, wanted to remain anonymous or that they were afraid of the consequences of speaking out about their experiences. This, BSkyB said, was not the case and it would have undermined their intention in speaking out. BSkyB stated that the aim of Mrs Steele and Ms Shagofta Hussain was to encourage others in similar situations to theirs to take action. Their identification in the report, as compared to their sister who subsequently changed her mind about taking part and whose appearance was disguised, was a key element in achieving their goal, namely that the sisters would be seen to be empowered by the stance they had taken against forced marriages. BSkyB said that the report would not have had this effect if the sisters’ full names, including their family name, had not been given. BSkyB also submitted to Ofcom a copy of a newspaper article in which Mrs Steele (referred as Zaira Hussain in the article) discussed these issues.

Decision

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.

This case was considered by Ofcom’s Executive Fairness Group. Ofcom considered the complaint and the broadcaster’s response, together with supporting material and a recording and transcript of the programme as broadcast. In its considerations, Ofcom took account of Ofcom’s Broadcasting Code (“the Code”).

In the circumstances of this case, Ofcom found the following:

a) Ofcom considered Mrs Hussain’s complaint that her family home and her family name were revealed on the programme and that it implied that she was in some way linked with the “forced marriages” alleged by her sisters.

Ofcom considered this complaint in light of Rule 7.1 of the Code which states that broadcasters must avoid unjust or unfair treatment of individuals or organisations in programmes. Ofcom also took into account Practice 7.9 of the Code which states that before broadcasting a factual programme, including programmes examining past events, broadcasters should have taken 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.

Having examined the programme as broadcast and read a transcript of it, Ofcom noted that only the exterior of the Hussain family home was shown and that the commentary had stated that it was located in Peterborough . Ofcom noted that the images of the property did not reveal any house name or number or any other distinguishing signs such as a street name or recognisable landmarks.

In these circumstances, Ofcom was satisfied that the information disclosed in the programme in relation to Mrs Hussain’s home was insufficient to identity the address or its location other than it was in Peterborough . In any event, it was unclear how the identification of her family home would have resulted in unfairness to Mrs Hussain. There was no implication in the programme that Mrs Hussain, who was not named or referred to in the programme, had been forced into marriage against her will or that she had participated in the alleged forced marriages of her sisters. Ofcom therefore found no unfairness to Mrs Hussain in this respect.

In consideration of Mrs Hussain’s complaint that the family name was used in the programme and that this was unfair to her, Ofcom noted that, as referred to above, Mrs Hussain was not named or referred to in the programme. Ofcom considered that the association of Mrs Hussain with other members of her family did not result in unfairness to her as there was no criticism of Mrs Hussain in the programme, nor any implication that she had been subjected to a forced marriage or played a role in her sisters’ marriages. Ofcom therefore found no unfairness to Mrs Hussain in this respect.

b) Ofcom then went on to consider Mrs Hussain’s complaint that her privacy was unwarrantably infringed in the programme as broadcast in that her family name was revealed and her family home address was shown in the programme without her consent.

In Ofcom’s view, the line to be drawn between the public’s right to information and the citizen’s right to privacy can sometimes be a fine one. In considering complaints about the unwarranted infringement of privacy, Ofcom will therefore, where necessary, address itself to two distinct questions: First, has there been an infringement of privacy? Second, if so, was it warranted? (Rule 8.1 of the Code).

Ofcom first considered whether or not Mrs Hussain had a legitimate expectation of privacy concerning the revelation of her family home address in the programme. In deciding this, Ofcom had particular regard to Practice 8.2 of Code which states that information that discloses the location of a person’s home or family should not be revealed without permission, unless it is warranted. In these circumstances, therefore, Ofcom was satisfied that Mrs Hussain did have a legitimate expectation of privacy concerning the address of her family.

Ofcom then considered whether or not Mrs Hussain’s privacy was infringed in the broadcast of the programme. As already discussed above at head a) of the Decision, by examining the footage in the programme, Ofcom noted that only the outside of the house was shown in close detail. No number or house name was disclosed, nor was any mention made of the location of the house other than it was in Peterborough .

In these circumstances, Ofcom was satisfied that the address details of Mrs Hussain’s family home were not disclosed in the report and that the images of the exterior of her house were not sufficient to be able to identify the location or identify the address of the property. Ofcom therefore found that Mrs Hussain’s privacy had not been infringed in the programme as broadcast and it was not therefore necessary to consider whether or not any infringement of privacy was warranted.

Ofcom then considered the use of Mrs Hussain’s family name in the report and whether its use infringed her privacy.

Ofcom first considered whether or not Mrs Hussain had a legitimate expectation that her family name would not be disclosed. Ofcom recognised that in certain circumstances the use of a family name in a programme could have the potential to infringe the privacy of those members of the family who are not the subject of the programme but who, nevertheless share the same name. Ofcom therefore considered the particular circumstances of this case.

Ofcom examined the footage in the programme and noted, as discussed above, that Mrs Hussain was not named in it or featured in any other way. However, her sisters, Mrs Steele and Ms Shagofta Hussain, were named and featured in the report which rendered Mrs Hussain identifiable, by association to her sisters, to those who knew her.

Ofcom also noted that her family name was shared by Mrs Hussain and by her two sisters who had agreed to be identified in the programme. It also noted that it would not have been possible to have identified them without the use of their family name. It noted that the family name was already in the public domain as the story of one of the three sisters had been featured in a newspaper article. In these circumstances, Ofcom considered that it was reasonable for BSkyB to have included the names of the two sisters who agreed to appear openly in the programme. For these reasons, Ofcom considered that Mrs Hussain did not have a legitimate expectation that the family name that she shared with her sisters would not be used in these circumstances.

Taking these factors into account, and as Mrs Hussain had no legitimate expectation of privacy in the use of her family name, Ofcom found that Mrs Hussain’s privacy was not infringed and did not therefore go on to consider whether any infringement was warranted.

Accordingly, the complaint of unfair treatment and unwarranted infringement of privacy in the programme as broadcast was not upheld.

Complaint by Mr Marvin Munday and Mrs Nicola Munday
Haunted Homes, ITV2, 3 and 8 February 2006

Summary: Ofcom has not upheld this complaint of unfair treatment about the above programme. This programme investigated Mr and Mrs Munday’s claim that their house was haunted.

Mr and Mrs Munday complained to Ofcom that they were misled about the programme’s nature and the programme unfairly depicted them as amateur paranormal investigators and as “dabbling” with the devil. They also complained that footage of them was unfairly edited, failing to present their experiences fairly and misleading viewers into wrongly believing that they were terrified.

The complaint was considered by Ofcom’s Executive Fairness Group. Ofcom was satisfied that Mr and Mrs Munday were not materially misled about the likely nature and content of the programme and that the programme fairly and accurately portrayed Mr and Mrs Munday’s expertise in the field of paranormal investigations. Ofcom also considered that the programme makers had not edited footage of Mr and Mrs Munday in a way that was unfair.

Introduction

On the 3 February 2006 (repeated on 8 February 2006), ITV2 broadcast an episode of Haunted Homes, a series which investigated the claims made by people who believed that they had experienced paranormal phenomena in their homes. Each household was visited by an investigation team comprising Ms Mia Dolan, described by ITV as a psychic and medium, Mr Mark Webb, a paranormal researcher, and Professor Chris French, who sought to provide a rational explanation for the reported paranormal experiences. The team undertook vigils at each household and offered contrasting responses to the accounts given by the families and to the environment of the house itself.

In this particular episode, the investigation team visited the home of Mr Marvin Munday and Mrs Nicola Munday. The programme said that Mr and Mrs Munday, both described in the programme as “amateur paranormal investigators”, had used a Ouija board, in the course of their research into paranormal phenomena. A Ouija board to those who accept the paranormal is a board with letters and symbols at its rim to which a planchette (a pointer used with a Ouija board) points to indicate answers to questions put, for example, at a séance. However, their use of the Ouija board had, according to Mr and Mrs Munday, opened a gateway for a malevolent spirit or entity that now haunted their home. Mr and Mrs Munday contributed to the programme and were featured throughout it.

Both Mr and Mrs Munday complained to Ofcom that they were treated unfairly in the programme as broadcast.

The Complaint

Mr and Mrs Munday’s case

In summary Mr and Mrs Munday complained to Ofcom that the programme treated them unfairly in that:

a) They were misled about the nature of the programme. They were told that it would be a factual, ‘fly on the wall’ type documentary without dramatisation.

b) They were depicted, throughout the programme, as amateur paranormal investigators. References in the programme’s commentary to them being “amateur” and the programme’s investigatory team as “professionals” were used in the same sentence, thereby giving viewers the impression, that Mr and Mrs Munday were amateurs and as such were fearful, terrified and unable to deal with the situation. This was not case.

c) Mr and Mrs Munday’s comments on the situation taken from their interviews were used out of context. Their interviews were edited unfairly leaving out important facts. The programme failed to include their “confident and unfearful” views on the situation.

d) The programme makers created a theme to the programme without Mr and Mrs Munday’s knowledge. After four days of being filmed, the programme that was broadcast had turned into a documentary about the Ouija board and the dangers of using it. Mr and Mrs Munday said that the programme’s commentary was over-dramatised in that words were used that were not applicable to them.

e) The programme failed to present an honest and fair view of Mr and Mrs Munday’s experiences and how they had dealt with the situation without the help of the programme makers. Mr and Mrs Munday said that the programme makers were aware that Ms Dolan had failed to expel the paranormal spirit or entity from their house and that she had not burnt the Ouija board as she had promised. Instead, the Ouija board was returned to Mr and Mrs Munday who had engaged “shamanic people” to clear their house. Had the programme shown this, Mr and Mrs Munday said, Ms Dolan would not have been portrayed as the “professional saviour of the day”.

f) The programme constantly used the word “dabble” when referring to Mr and Mrs Munday’s research work with the Ouija board which had been conducted over some 16 months. The use of this word was offensive and was used to portray them as amateur.

g) The programme makers dramatised the situation and wanted viewers to believe that Mr and Mrs Munday were terrified. This was despite the programme makers having told them that the programme would be a factual documentary.

h) The programme also referred to them as “the devil dabbling Mundays” which portrayed them inaccurately.

ITV’s statement in response

In summary and in response to the specific heads of complaint, ITV said that:

a) It was satisfied that Mr and Mrs Munday were not misled into taking part in the programme and that the programme makers had explained the nature and format of it to them and had discussed their proposed contribution to it well before filming.

ITV said that the programme makers maintained that before the filming began, Mr and Mrs Munday were made familiar with the pilot programme for the series which had already been broadcast and followed a similar format to the programme in which they appeared. ITV said that Mrs Munday had confirmed to the programme makers in a post-transmission telephone conversation on 9 February 2006 that the format of the programme had been explained to Mr and Mrs Munday prior to filming and that they had seen “nearly all” of the pilot programme. ITV added that Mrs Munday later told ITV she and Mr Munday had not seen the pilot.

ITV said that dramatisation and documentary were not mutually exclusive formats in programme making. In this case, elements of Mr and Mrs Munday’s account of paranormal events in their home were depicted visually in reconstruction. Some of the reconstructions were created with Mr and Mrs Munday’s active assistance, which demonstrated that both Mr and Mrs Munday were aware before and during filming of the likely format and tone of the programme. ITV argued that although the programme sometimes used emotive narrative language and creative imagery to engage the audience and to tell the story, it did not treat their situation simply as dramatic entertainment. Mr and Mrs Munday’s account of events was taken seriously and the programme retained the due objectivity of a documentary.

ITV stated that it sincerely regretted that Mr and Mrs Munday were offended by the use of the word “amateur”. However, the fact that they were offended did not mean that the use of the word was unfair to them or an inaccurate reflection of the facts.

ITV said that it was accepted that Mr and Mrs Munday had a longstanding interest in investigating the paranormal and their backgrounds were made clear. In the programme Mr Munday was introduced as being the son of a psychic and who claimed to be particularly sensitive to paranormal activity, while Mrs Munday was introduced as having always believed in ghosts. The programme went on to say that both Mr and Mrs Munday spent “their weekends researching the spirit world as paranormal investigators…”.

b) ITV said that in the unedited footage of the interviews with Mr and Mrs Munday, Mrs Munday referred to their interest in the paranormal as a “hobby” and that Mr Munday, although believing himself to be a “sensitive” (a person who has psychic powers but cannot communicate with the dead) with special spiritual abilities, accepted that he did not have the expertise of a “fully fledged medium”.

ITV said that the use of the word “amateur” to describe Mr and Mrs Munday was not intended to belittle them or promote the abilities of Ms Dolan by comparison; rather it was a factual statement. Mr and Mrs Munday did not study the paranormal full time for a living. They had other jobs and pursued their interest in their spare time. ITV said that any contrast between the complainants’ “amateur” status and the professional status of the programme’s investigators was, therefore, a fair one.

ITV said that in their interviews, both Mr and Mrs Munday referred to the situation they found themselves as having got out of hand and that they were looking for outside help to resolve it. For instance, Mrs Munday said that:

“Living with uninvited intruders is concerning, you feel like you’re losing control…” and “It is like putting a jigsaw together and we can’t do it without the help of a medium…”

Mr Munday also said in interview that:

“anything can happen…the research [he had undertaken] has not prepared me for what has happened to us here…”

c) ITV said that it was not clear which particular comments Mr and Mrs Munday were referring to in this particular head of complaint.

d) ITV assumed that Mr and Mrs Munday’s complaint was that they believed that the programme had over-emphasised the theme of their use of the Ouija board and its negative outcome as the central feature of the story. It was clear from reviewing the transcripts of their interviews and the unedited footage of the filmed sequences where Mr and Mrs Munday described their family life in the house that they believed that they had experienced unexplained events that they ascribed to a paranormal force. Ms Dolan had advised Mr and Mrs Munday that the Ouija board they had used was central to understanding the source of the phenomena namely that they had invited the spirit or entity responsible into the house via the Ouija board.

ITV said that Mrs Munday commented in interview about their research of “horror stories about what can happen using the Ouija board”. They suggested that their earlier determination to experiment with the Ouija board was despite advice from others not to do so and that they now wished that they had never started using it. Their conclusion was “nothing good ...has come out from using the Ouija board. I personally think it thrives from negativity. If we stay away from the Ouija board there is certainly a decrease in the amount of negativity in our lives”. ITV said that Mr and Mrs Munday clearly accepted Ms Dolan’s advice at face value at the time of filming. It was therefore editorially justified, and certainly not unfair to the complainants, for the programme to focus on this issue.

ITV said that this theme reflected not only the conclusions of Ms Dolan and Mr and Mrs Munday, but also many other paranormal commentators who warned of the potential negative effects of use of the Ouija board. ITV said that research on viewer attitudes showed that most viewers regarded Ouija boards as being towards the negative or occult end of the paranormal spectrum. In these circumstances, the programme’s commentary, therefore, did seek to convey the message that the use of a Ouija board, especially by people who do not purport to be experienced mediums, can have a negative outcome, and that even people who are experienced in paranormal investigation, such as Mr and Mrs Munday, should not experiment with a Ouija board. This view was reflected by Mr and Mrs Munday themselves in comments that they made.

e) ITV took this head of complaint to refer to events that took place after the conclusion of filming for the programme. ITV said that Mia Dolan had taken the Ouija board away from Mr and Mrs Munday’s house after the filming was over. ITV said that Ms Dolan accepted that she may well have told Mr and Mrs Munday that the Ouija board had been destroyed when it had not been, but had done so to put their minds at rest, in the genuine belief that it could not cause them any further problem whilst in her hands. ITV said that it had already apologised to Mr and Mrs Munday that the assurance given to them by Ms Dolan that she would destroy the Ouija board was not kept, despite her not being an employee of ITV or the programme makers. However, ITV said that this in itself did not lead to any unfairness to Mr and Mrs Munday in the programme.

At the conclusion of the programme, the commentary stated that:

“Mia claims she’s finally expelled the demonic spirit that called itself Brian, she takes the Ouija board which she believes will keep Brian away”.

ITV said that this accurately reflected her opinion that Mr and Mrs Munday’s problems, which both she and they attributed to their use of the Ouija board, would be over. Also, fair and representative extracts from Mr and Mrs Munday’s post clearing interviews were used in the conclusion to the programme, in which they stated, for example, that there was an “instant calm”, that the house was “happy, its light, feels nice to come home to…”, and that “anybody that can look after my family for me has my respect”. This all suggested, according to ITV, that Mr and Mrs Munday were satisfied that the situation had improved after the second “clearance” with Ms Dolan’s help and [after they] were persuaded to follow her advice not to use the Ouija board again.

The programme makers were asked by Mr and Mrs Munday to contact Ms Dolan on their behalf as she was apparently not returning their calls to her. Eventually, the Ouija board was returned to them via courier. ITV said that Mr and Mrs Munday informed them that they had held a ceremony to destroy the board themselves, but they did not tell them about a third “clearance” of the house as such. ITV said that at no time did Mr and Mrs Munday request that the programme makers not to include the interviews they had given after the second “clearance”, which reflected their views of the improved conditions in the house at that time, nor did they request that reference be made in the programme to their own ritual.

ITV said that in all the circumstances, the programme was not obliged to report, as a matter of fairness, that Mr and Mrs Munday had: later became convinced that they still had a continuing spirit problem in the house; that they believed this to be connected to the Ouija board not having in fact been destroyed by Ms Dolan; or, that they had consulted another group of paranormal enthusiasts who performed a different type of shamanic ritual to “clear” the house. The programme reported that Mr and Mrs Munday: had had a worrying problem they could not solve themselves; had invited the Haunted Homes team to investigate; that Ms Dolan had sought to “clear” the house; and, that they believed Ms Dolan’s intervention (after two attempts at “clearing”) had been beneficial and that they were following her advice not to use the Ouija board again. This, ITV said, was a fair reflection of the events.

f) ITV accepted and regretted that Mr and Mrs Munday had taken offence at the use of the word “dabble” in the programme. Nevertheless, the use of the word was not unfair to them simply because they found it offensive or demeaning. The word dabbler is, as Mr and Mrs Munday pointed out in their complaint, a synonym for amateur. In the context of the programme, ITV said that it reflected an activity which Mrs Munday had herself referred to as “playing”- an occasional activity during their leisure time which they believed had unforeseen and negative consequences.

g) ITV said that the programme used illustrative comments from the interviews of Mr and Mrs Munday to explain to the viewer the fear that their children had experienced, the children’s dislike of the front bedroom; and, their concern that their children should not be adversely affected by their interests in the paranormal, For example, ITV said that Mrs Munday in interview describing an incident said that:

“by seeing the monk it really scared me and my heart was beating really fast” and “I was really scared after seeing that”.

ITV accepted that Mr Munday maintained that he was not frightened personally by the experiences in the house, but said that he also expressed concern for the fears of the children and how it might affect them in later years and that he would feel helpless in the face of “nasty” physical phenomena. It was not unreasonable for the programme to generalise that the family had been terrorised by the phenomena in the house.

ITV said that there was always a difficult editorial judgment to be made in such programmes, given a general dearth of recorded evidence to substantiate what each family said that they had experienced and, given that the programme could not represent these accounts uncritically as fact. However, at the same time, the programme wished to relay to the viewer the psychological reality of how disturbing perceived paranormal phenomena could be for a family. What was criticised by Mr and Mrs Munday as “dramatisation” or “misrepresentation” in the commentary stems from the desire to convey the family’s experience to the viewer in a compelling way. Although the programme clearly used emotive language to engage the viewer, and occasionally it was fair to say that that language did not accurately reflect the language used by Mr and Mrs Munday themselves (for example “their lives have been devastated”), ITV said that the programme did not exaggerate their fears or edit their contribution in such a way that was unfair to them, given what they had told the programme makers in interview of their fears and concerns and the fears of their children.

h) ITV said that the programme’s commentary did not use the words “the Devil dabbling Mundays”. In fact, Mr and Mrs Munday were referred to as those “who dabbled with the devil” by the continuity announcement at the beginning of the programme repeat on 8 February 2006 . ITV said that this was produced by an ITV unit not connected with the programme makers. However, given the programme made clear that it was Ms Dolan’s view that the entity was evil and “demonic” which Mr and Mrs Munday at the time appeared to accept as being in accord with their own beliefs, and given ITV do not accept the use of the word “dabbling” was unfair in relation to their use of the Ouija board, ITV said that the phrase in itself was not unfair to Mr and Mrs Munday.

Mr and Mrs Munday’s comments

In summary and in response to ITV’s statement, Mr and Mrs Munday commented that:

a) They had made it clear to the programme makers that they were not in “trouble” and that being paranormal investigators themselves, they were able to deal with the situation. They were told they would be considered for a ‘fly on the wall’ documentary programme. Their story was dramatised it was not factual but they had agreed to participate in a factual documentary. They also made it clear to the programme makers that they were not familiar with the pilot programme. Mrs Munday said that in a post-transmission telephone conversation with the programme makers on 9 February 2006 , she was asked whether or not she had seen the pilot programme, to which she responded that she had seen some of it, namely, the part where a woman was seen to be walking upstairs with a walking stick. Mrs Munday made it clear to the programme makers that she had not seen the whole of the pilot programme.

b) Mr and Mrs Munday took issue with ITV relying on the difference between a “sensitive” and a medium without apparently understanding what that meant. They also believed the rushes of interviews with themselves show evidence of repeated questioning, persuasion etc to lead them into saying things they did not agree with (which they said they resisted). Mr and Mrs Munday argued that this omission lead to unfairness and incorrect representation.

c) Mr and Mrs Munday stated that they specifically complained about the beginning of the programme which featured Mrs Munday saying “it has to stop now”. Mr and Mrs Munday said that this was said in the context of their research into the Ouija board having to stop and not a reference to the situation portrayed in the programme. They pointed to the transcript of the interview as evidence.

d) Mr and Mrs Munday maintained that the programme makers had told them that they had been looking for paranormal investigators to be contributors and that they would not be portrayed as something they were not. Mrs Munday said that she had become suspicious that the Ouija board was becoming the focus of the filming, but that she was assured otherwise by the programme makers. Mr and Mrs Munday said that they were aware of the controversial attitudes towards the Ouija board but their comments on it were not shown in the programme. The only opinion voiced in the programme was that of Ms Dolan, They were portrayed as irresponsible and uneducated.

e) Mr and Mrs Munday said that the programme failed to give a fair portrayal of the actual events. They said that Ms Dolan was given unjust credit which belittled them in the programme and failed to fulfil what they believed they had agreed to. Mr and Mrs Munday said that the whole story (including the later successful clearing and late destruction of the Ouija board) should have been included in the programme and broadcast to the viewer, not just half of it and that that had been part of their agreement with the programme makers.

f) Mr and Mrs Munday made no further comments but did not accept ITV’s position.

g) Mr and Mrs Munday quoted ITV’s statement, that: “At the same time the programme wishes to relay to the viewers the psychological reality of how disturbing perceived paranormal phenomena can be for a family “as evidence that the programme maker “invented’ the Mundays as a family to fit their requirements. They pointed to a question to Mrs Munday which said “people will be thinking, well you seem to know an awful to so why don’t you cope with it”

h) Mr and Mrs Munday reiterated that they found this phrase offensive.

ITV’s final comments

In summary and in response to Mr and Mrs Munday’s complaint, ITV said that:

a) Mr and Mrs Munday were made aware of the likely tone and format of the programme prior to filming. ITV reiterated that they were happy to cooperate with the programme makers in filming the reconstructions and they had understood that the purpose of the filming was to illustrate their story.

ITV accepted that the programme makers’ recollection of the contents of the telephone conversation with Mrs Munday on 9 February 2006 did not accord precisely with that of Mrs Munday. It said that it was a genuine lapse of memory on the part of the programme makers and noted that Mrs Munday confirmed that she had seen some of the pilot programme and not all of it. There was no unfairness in representing certain events via these reconstructions.

b) ITV said it was not unfair to repeat questions in order to get the most clear and concise answer and that this was a common technique as was explained to Mr and Mrs Munday. The programme could not include everything filmed by the programme makers, but did not misrepresent the concerns of Mr and Mrs Munday.

c) ITV said that the use of Mrs Munday’s comment “it has to stop now” in the programme was used fairly and entirely in context. ITV said that her comment was made in interview in the context that Mr and Mrs Munday’s own research with the Ouija board had to stop since, in her words, “we’ve probably made the wrong decision” in pursing it. The comment was therefore used in the programme at this point to represent the belief of Mr and Mrs Munday that no good had come from using the Ouija board, given the increasingly negative experiences that they had reported.

d) ITV said that Mr and Mrs Munday were included in the programme because of the merits of their story and not because they were paranormal investigators.

e) ITV made no further relevant comments regarding this point.

f) ITV made no further comment.

g) ITV made no further comment.

h) ITV made no further relevant comments regarding this point.

Decision

This case was considered by Ofcom’s Executive Fairness Group. The Group had before it a complaint and further written submissions from Mr and Mrs Munday and a statement in response, with supporting material, and further written submissions from ITV. It viewed a recording of the programme as broadcast and read a transcript of it. It also viewed unedited interview footage (and read transcripts of the interviews) and viewed unedited footage of one of the reconstructions.

In considering the individual heads of Mr and Mrs Munday’s complaint, Ofcom took into account Rule 7.1 of the Code which states that broadcasters must avoid unjust and unfair treatment of individuals or organisations in programmes.

Ofcom addressed separately each of Mr and Mrs Munday’s individual complaints concerning the programme’s treatment of them.

Ofcom’s Executive Fairness Committee found the following:

a) Ofcom first considered Mr and Mrs Munday’s complaint that they were misled about the nature of the programme in that they were told that it would be a factual, ‘fly on the wall’ type documentary without dramatisation.

In considering this element of the complaint, Ofcom took into account of Practice 7.2 of the Code which states that broadcasters and programme makers should normally be fair in their dealings with potential contributors to programmes unless, exceptionally, it is justified to do otherwise. It also had regard to Practice 7.3 in the Code states that where a person is invited to make a contribution to a programme, they should normally at an appropriate stage: be told the nature and the purpose of the programme, what the programme is about and be given a clear explanation of why they have been asked to contribute and when (if known) it is likely to be first broadcast; be told what contribution they are expected to make; be informed about the areas of questioning and wherever possible the nature of the other likely contributions; and, be made aware of any significant changes to the programme as it develops which might reasonably affect their original consent to participate, and which might cause material unfairness. The Code explains that taking these measures is likely to result in the consent that is given being “informed consent”. It may be fair to withhold all or some of this information where it is justified in the public interest or under other sections in the Code.

Ofcom noted the absence of any note-taking or other documentary evidence in the material submitted by ITV and Mr and Mrs Munday to determine what was or was not explained to them by the programme makers during the making of the programme. It also noted from the unedited material and from the programme itself that both Mr and Mrs Munday had taken part in reconstructed scenes of events from their own perspective, for example Mr and Mrs Munday using the Ouija board. Ofcom also noted that although it was accepted by ITV that Mr and Mrs Munday had not seen the entire pilot programme, Mrs Munday had, at least, seen some part of it. It noted that ITV also accepted that the programme had used emotive language in its commentary and had used creative imagery (that is, using reconstructions) in order to tell the story, but that it had done so, it claimed, in a way that retained the due objectivity of a documentary programme.

Ofcom recognised that there was a clear conflict between the parties in what they understood to be the purpose and nature of the programme and the format that it was to take. However, neither party has provided any documentary evidence for Ofcom to consider which addressed what Mr and Mrs Munday understood the nature of their contribution would be and the manner in which they would appear in the programme and, as a result, whether or not this amounted to unfairness in the programme as broadcast.

Although Ofcom was not able to determine exactly what transpired between the programme makers and Mr and Mrs Munday before and during the filming process, it was, nevertheless, satisfied that the programme makers had not materially misled them into contributing to the programme and as to its likely format. In Ofcom’s view, it was clear from the footage of the reconstruction with Mr and Mrs Munday at the Ouija board that they were happy to assist the programme makers in filming them in that manner. Ofcom considered that although the programme retained a factual, documentary presentation style, the inclusion of reconstruction footage resulted in the programme taking a more informal presentational style than would be usual for a ‘fly on the wall’ style documentary. Through actively participating in the filming of the reconstructions, Ofcom took the view that Mr and Mrs Munday would have been sufficiently aware of the nature and format that the programme was likely to take, namely a more informal recounting of their story (also see (d) below). In these circumstances, Ofcom found no unfairness to Mr and Mrs Munday in this respect.

b) Ofcom went on considered Mr and Mrs Munday’s complaint that they were depicted throughout the programme as being “amateur paranormal investigators” in contrast to the ‘professional’ investigators which gave viewers the impression, wrongly, that they, being amateurs were “fearful, terrified and unable to deal with the situation”.

In considering this element of complaint, Ofcom took account of Practice 7.9 of the Code which states that 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; and, anyone whose omission could be unfair to an individual or organisation has been offered an opportunity to contribute.

Ofcom noted that the programme’s commentary included references to Mr and Mrs Munday being “amateur” and “amateur paranormal investigators” and their interest in the paranormal was described as a “hobby”, In contrast Ofcom noted that the programme’s team of experts brought in to help Mr and Mrs Munday were referred to as “experienced paranormal investigators” and as “experts”.

Ofcom considered that neither ITV nor Mr and Mrs Munday suggested that Mr and Mrs Munday’s interest in paranormal phenomena was anything other than genuine. It considered that the programme made if clear that both Mr and Mrs Munday were genuine and sincere in their beliefs. For instance, the commentary said that “both Nic and Mel Munday spend their weekends researching the spirit world as paranormal investigators.” Ofcom noted that in the un-transmitted interview footage Mr Munday said that “I wish I’d never started it in the first place”. He explained that a medium [Ms Dolan] would be above a “sensitive” [himself] “quite simply...because they’re more experienced.”

Ofcom was satisfied that there was a distinction between Mr and Mrs Munday as paranormal investigators, and the three experts featured in the programme. In Ofcom’s view, it was clear that Mr and Mrs Munday did not investigate the paranormal professionally, that is for a living, and that, in these circumstances, and it was reasonable for the programme’s commentary to refer to them as amateurs. Ofcom considered that it would have been unlikely that viewers would have considered Mr and Mrs Munday in a negative way and in a way that was unfair to them as a result of the description of them in the context of this programme as “amateur paranormal investigators”.

Ofcom then went on to consider whether or not the programme’s references to Mr and Mrs Munday as amateurs would have given viewers the impression, wrongly, that they were “fearful, terrified and unable to deal with the situation” that they found themselves in.

In Ofcom’s view the use of the word amateur did not in itself suggest that Mr and Mrs Munday were therefore fearful, terrified and unable to deal with the situation. By examining the programme and the unedited interview footage, it was clear to Ofcom that Mr and Mrs Munday had been concerned about some of the paranormal events that had apparently occurred in their home and had reached a position where they sought the help of the Haunted Homes paranormal investigation team to expel the paranormal entity from the house (see (c) and (g) below.

Taking all the relevant factors detailed above into account, Ofcom was satisfied that the programme’s description of Mr and Mrs Munday as “amateur” and “amateur paranormal investigators” was a fair and accurate representation of their expertise in the field of paranormal investigations, especially when contrasted to the three paid investigators featured in the programme and did not imply that as Mr and Mrs Munday were “fearful, terrified and unable to deal with the situation”. Ofcom, therefore, found no unfairness to Mr and Mrs Munday in either respect.

c) Ofcom then went on to consider Mr and Mrs Munday’s complaint that their comments on the situation taken from their interviews were used out of context, The interviews were edited unfairly leaving out important facts in the programme which failed to include their “confident and unfearful views on the situation”.

` In considering this element of the complaint, Ofcom had regard to Practice 7.6 of the Code which states that when a programme is edited, contributions should be represented fairly. It also had particular regard to Practice 7.9 of the Code.

Ofcom considered that in the un-transmitted interview footage Mrs Munday stated, in a joint interview with her husband that “we’re confident in what we do and I don’t want to be portrayed, on that, where, we sort of can’t handle it”. In response to the question as to why they needed help she explained that, as a sensitive, her husband was capable of protecting the family spiritually but could not “get rid of anything that is of a negative nature”.

Mrs Munday said in her untransmitted interview about the situation after using the Ouija board that “Living with uninvited intruders is concerning, you feel like you are losing control…”

Ofcom considered that it was clear from the unedited interview that Mrs Munday and Mr Munday both agreed that as a “sensitive” Mr Munday was not able to get rid of the unwanted spirit they believed they had in the house.

It was also clear that Mr and Mrs Munday had expressly said after repeated questioning that they did not want to be portrayed as being unable to handle the situation. However they had also expressed concern for the children and the long-term effects of the situation on them and Mrs Munday had expressed fears at some of the situations she had experienced over the years in the house.

Ofcom then considered whether not including such comments led to unfairness in the programme as broadcast.

In Ofcom’s view the wider public would not have gained an adverse view of Mr and Mrs Mundays whether they were portrayed as fearful or as confident. In either case the essential details were that: they believed that a spirit had entered the house following their use of the Ouija board; they wanted help to get rid of the spirit; and they feared for the consequences for the children if they did not do that.

In these circumstances, Ofcom found no unfairness to Mr and Mrs Munday in this respect.

Mr and Mrs Munday made a specific reference in their complaint to the inclusion of Mrs Munday’s comment words “it has to stop now” in this context at the start of the programme:

Commentary: “The Mundays say they are plagued by spirit they claim they welcomed into their home.”

Mrs Munday: “He would say some really personal stuff which could play with your head. [edit] It has to stop now.”

Ofcom noted the full context of the words it has to stop now from the transcript of the interview with Mrs Munday was as follows:

“We got ourselves into this, in the name of research, and um, probably made the wrong decision, with the Ouija board, but I think it’s something that we had to do. We’ve certainly not ignored any advice, and we’ve extensively research, um, the subject, but it has to stop now. There’s um, there’s, it definitely has to stop, we can’t carry on like this. If it is cleared from our home, it will enable us to pursue what we want to do [that is, to follow their own spiritual path and investigate paranormal activity]”.

Ofcom also noted that Mr and Mrs Munday claimed that her comment was made in the context of their research into the Ouija board and not to the situation the programme portrayed them to be in. It also noted that ITV maintained that her comment was used in context, in that their research had to stop since they had, in Mrs Munday’s words “probably made the wrong decision”.

In considering this single element of the complaint Ofcom noted that the words “it has to stop now” could be taken to mean that the research with the Ouija board had to stop or that the presence of the spirit that Mrs Munday believed had occurred as a result of the use of the Ouija board has to stop. It was highly probable that the former was the meaning that Mrs Munday has intended.

Ofcom also noted that in the transcript of the unedited interview Mrs Munday explained that she believed that:

“Mel [Mr Munday] is capable of protecting us spiritually, he is classed as a sensitive, but he can’t take that step forward to actually get rid of anything that is of a negative nature. We’re asking for help now so we can ...pursue our lives as we did before this happened”.

In the circumstances Ofcom was satisfied that ITV could correctly use the phrase “it has to stop now” to refer either to the use of the board or Mr and Mrs Munday’s perception that they were experiencing the presence of a spirit following the use of the Ouija board. Ofcom found that there was no unfair treatment to Mr and Mrs Munday in the use of Mrs Munday’s comment in the opening of the programme.

By examining the unedited interview footage and reading the transcript of it, Ofcom was satisfied that the commentary’s introduction was used fairly and accurately in representing Mr and Mrs Munday’s belief that only negative experiences had resulted from their experimentation with the Ouija board. In these circumstances, and taking into account Ofcom’s findings in heads (b) and (g) relating to them being fearful and terrified, Ofcom found that there was no unfair treatment to Mr and Mrs Munday in this respect.

d) Ofcom then considered Mr and Mrs Munday’s complaint that the programme makers created a theme without their knowledge and that the programme broadcast turned into a documentary about the Ouija board and the dangers of using it. Mr and Mrs Munday said that the commentary was over-dramatised in that it used words that were not applicable to the circumstances.

In considering this element of the complaint, Ofcom took into account of Practice 7.2 and 7.3 of the Code.

Ofcom noted that Mr and Mrs Munday stated that they believed that they were contributing to a factual documentary about their paranormal experiences and were unaware that the final programme would focus on the events surrounding the Ouija board. By examining the interview footage and reading the transcripts, Ofcom noted that both Mr and Mrs Munday explained that their recent experiences in the house which had led them to seek outside assistance were in their view the result of their use of the Ouija board. Ofcom noted that according to the programme it was also Ms Dolan’s view that the negativity the family was experiencing was caused by the use of the board. Ofcom also noted that both Mr and Mrs Munday accepted Ms Dolan’s opinion and advice (that it was the use of the Ouija board that was the cause of their paranormal experiences) at the time of filming.

Ofcom acknowledged that it was an editorial decision to be made by the programme maker as to what should be included in a programme from material provided by way of interview and other footage, as long as the resulting programme is fair in its treatment of the individual or company that has contributed. It is unrealistic for a company or individual to expect a broadcaster to cede editorial control of the content of the programme.

Taking the factors referred to above into account, although Ofcom accepted that Mr and Mrs Munday had discussed their interest in paranormal phenomena and apparent paranormal activity in their house, it was an editorial decision for the programme makers to focus on a particular aspect, so long that in doing so it created no unfairness to Mr and Mrs Munday.

In the circumstances of this particular case, Ofcom was satisfied that the programme‘s focus on the events surrounding the use of the Ouija board was an editorial decision for the programme makers to make. It considered that it was appropriate for the programme makers to focus on the board as it was: the probable cause, according the Ms Dolan and Mr and Mrs Munday, of the reported unpleasant experiences that they had experienced; the reason for Mr and Mrs Munday calling in the Haunted Homes team to expel the paranormal entity from the house; and illustrated the potential negative effects that can be experienced by those using a Ouija board according to public perception reflected in research. In Ofcom’s view, the programme makers’ decision to focus on the O

Broadcast Bulletin Issue number 89 - 16|07|07

Standards Cases

Notice of Sanction

British Broadcasting Corporation (“BBC”)Blue Peter, 27 November 2006, BBC1, 17:00 and CBBC, 18:30

In Breach

The Green Guide to Life BBC Radio 2, 14 April 2007, 13:00

The Last Casino Five, 23 March 2007, 15:30

Build a New Life in the Country Five Life, 7 May 2007, 20:00

Blood on the Carpet The Business Channel, 14 April 2007, 14:00

Police Patrol: Uncut ITV4, 4 February 2007, 20:00

Note to Broadcasters

Fairness and Privacy Cases

Not Upheld

Complaint by Mischon de Reya Solicitors on behalf of Foxtons Limited Watchdog, BBC1, 28 March 2006

Complaint by Howells Solicitors on behalf of Mr Andrew Jones Shops, Robbers and Videotape, BBC1, 17 May 2006

Complaint by Mrs Tahira Hussain Sky News Report: Forced Marriages, BSkyB, 29 March 2006

Complaint by Mr Marvin Munday and Mrs Nicola Munday Haunted Homes, ITV2, 3 and 8 February 2006

British Broadcasting Corporation (“BBC”)
Blue Peter, 27 November 2006, BBC1, 17:00 and CBBC, 18:30

The Green Guide to Life
BBC Radio 2, 14 April 2007, 13:00

The Last Casino
Five, 23 March 2007, 15:30

Build a New Life in the Country
Five Life, 7 May 2007, 20:00

Blood on the Carpet
The Business Channel, 14 April 2007, 14:00

Police Patrol: Uncut
ITV4, 4 February 2007, 20:00

Complaint by Mischon de Reya Solicitors on behalf of Foxtons Limited
Watchdog, BBC1, 28 March 2006

Complaint by Howells Solicitors on behalf of Mr Andrew Jones
Shops, Robbers and Videotape, BBC1, 17 May 2006

Complaint by Mrs Tahira Hussain
Sky News Report: Forced Marriages, BSkyB, 29 March 2006

Complaint by Mr Marvin Munday and Mrs Nicola Munday
Haunted Homes, ITV2, 3 and 8 February 2006