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Broadcast Bulletin Issue number 93 - 24|09|07

Standards Cases

In Breach

House of Fun
7/8 May 2007, around midnight

Introduction

House of Fun is a free-to-air adult entertainment channel featuring female presenters - known as “babes” – who invite viewers to call them on premium rate phone lines for sexual conversation.

A complainant said the output broadcast around midnight on 7/8 May 2007 was too sexually explicit for un-encrypted transmission, particularly in a segment at 00:27 .

Rule 1.24 of the Code says premium subscription services and pay-per view/night services may broadcast ‘adult-sex’ material between 22:00 and 05:30 - provided there is a mandatory PIN protection system, or equivalent protections, to restrict access to those authorised to view.

Rule 2.1 says generally accepted standards must be applied to ensure the public is protected from harmful and/or offensive material.

Rule 2.3 says broadcasters must ensure that material which may cause offence is justified by its context.

Response

The broadcaster, House of Fun, said the output did not represent the “more explicit images of sexual activity” as defined in the Code as ‘adult-sex’ material, and so did not come into the category of programme requiring mandatory encryption and PIN protections. The representations of sexual intercourse were simulated; they did not involve the use of sexual toys; and the presenters wore underwear at all times. Further, the content was justified by its context in an adult show, on an adult channel, and within the adult section of the Sky electronic programme guide ( EPG ).

The broadcaster added that viewers cannot stumble across the adult section of the EPG . It has to be a conscious decision. Sky has put systems in place to allow viewers to block adult material via PIN protection, if they choose. There is a further option available allowing for the entire adult section of the EPG to be removed from the visible EPG.

Decision

In deciding what is ‘adult-sex’ material, Ofcom guidance for broadcasters refers to definitions used by the British Board of Film Classification (BBFC) for ‘sex works at 18’. These are defined as “works… whose primary purpose is sexual arousal or stimulation”.

The output of House of Fun featured two topless women apparently engaging in masturbation inside their underwear, and then simulating oral sex. A third woman, apparently naked, was later presented in a separate window on screen with her legs spread and appearing to engage in masturbation, obscured by pixellation of her genital area. There was however no sound transmitted, except for a music track and an occasional voice-over urging viewers to call the “babes” on premium rate lines.

Images featuring simulated sexual acts that are not justified by context (such as the editorial content of the programme) will be considered ‘adult-sex’ material by Ofcom if one of their primary purposes appears to be sexual arousal or stimulation.

Ofcom considers that this output went beyond acceptable limits for free-to-air broadcast, in spite of the presence of underwear and pixellation, because of its explicit sexual content, and so amounted to ‘adult-sex’ material. One of its primary purposes was to provoke sexual arousal or stimulation as part of a commercial offer linking the on-screen sex acts with chat on premium rate sex lines.

The Code makes it clear that such ’adult-sex’ material should be secured behind a mandatory PIN protection system. This requirement is not met by the voluntary system available through the satellite PIN system, which requires viewers to apply the protection themselves.

It follows that this material was therefore inconsistent with the application of generally accepted standards to ensure protections from harm and/or offence.

This was a serious breach of the Code. Ofcom considered whether the matter should be referred to the Content Sanctions Committee for consideration of a statutory sanction. However, Ofcom noted that on this occasion that there was pixellation of the more explicit images; no explicit sexual language was transmitted; and, the late time of broadcast. Nevertheless, any similar breach in future is likely to result in the consideration of a statutory sanction.

Breach of Rules 1.24, 2.1 and 2.3

FHM Teeny Bikinis - Junior Jack, Stupidisco
QTV, 3 June 2007, 12:00

Allstars Day - N.E.R.D, Lapdance
Kiss TV, 16 June 2007, 16:30

Introduction

QTV is a pop music video channel owned and operated by Emap Performance TV. Three viewers, all of whom were watching with young children, complained about the inappropriate scheduling of this music video which showed skimpily dressed females writhing around in an erotic fashion in a wrestling ring. Ofcom asked the broadcaster to comment in relation to Rules 1.4, 1.17 and 1.18 of the Code. The rules in this section require that people under eighteen are protected from material that is unsuitable for them.

Kiss TV is a pop music video channel owned and operated by Emap Performance TV. Three viewers complained about the inappropriate scheduling of a video by N.E.R.D called ‘Lapdance’. Two of the viewers were watching with their young children and objected to the sexually explicit material and offensive language. The video contained scenes showing topless lap dancers and the lyrics contained offensive language such as, ‘motherfucker’ and ‘nigger’.

Ofcom asked the broadcaster to comment on the broadcast in relation to Rules 1.4, 1.14, 1.17 and 1.18 of the Ofcom Broadcasting Code.

Response

Emap Performance TV said that they were disturbed that these incidents had occurred and totally accepted that they were inappropriate and unsuitable to broadcast pre-watershed. An immediate investigation was launched as to how late night versions of these videos had made it past a usually stringent series of checks to be broadcast in these time slots. Their internal rule for the watershed was later than that stipulated in the Code. No content suitable for ‘adults only’ should be aired before 22:00 .

The investigation revealed that some weeks before these videos were broadcast, one of the media storage drives had been found to be corrupt and material was lost, including the videos in question. In the haste to load a large quantity of music back onto their systems, certain videos that were not intended for immediate transmission were left for the compliance team to check later. But in the case of videos complained of, these compliance checks were not carried out. As a result of these incidents, the programming and presentation teams had been reminded of the need to comply with the Code.

The broadcaster assured Ofcom that the matter was not being treated lightly and all versions of these music tracks have now been deleted. Following these incidents, compliance procedures had been tightened. Emap Performance TV apologised to all who had been offended by the material.

Decision

Ofcom welcomes the broadcaster’s assurances of improved compliance and its apology regarding these incidents. However, it remains the licensee’s responsibility to ensure that effective and robust compliance procedures are in place to prevent such incidents. As the licensee acknowledged, it remained the responsibility of its compliance staff to check that the videos were suitable for broadcast. This compliance process was not completed. In view of the explicit and erotic nature of the material and the inclusion of offensive language in these broadcasts before the watershed, we consider that both of these broadcasts are in serious breach of the Code.

Ofcom notes that these are the second and third breaches of the Code it has recorded in 2007 against music channels owned and operated by Emap Performance TV for broadcasting inappropriate material pre-watershed. In Bulletin 86 a breach of 1.14 (most offensive language) and 1.16 (offensive language) was recorded against The Hits Channel for ‘The Wheel of Love’, a text to screen game that included offensive language being broadcast in text form on screen. Any similar breach in future is likely to result in the consideration of a statutory sanction.

Junior Jack, Stupidisco - Breach of Rules 1.4, 1.17 and 1.18

N.E.R.D., Lapdance - Breach of Rules 1.4, 1.14, 1.17 and 1.18

Midsomer Murders
ITV1, 7 February 2007, 16:00 (repeated 30 May, 16:00) and 29 May, 16:00

Introduction

Midsomer Murders is a long-running drama, usually scheduled between 20:00 and 21:00 , and set in a seemingly idyllic rural setting where murders which regularly occur in the community are investigated by police detective Tom Barnaby. This finding concerns two separate episodes, one broadcast on 7 February 2007 (and repeated on 30 May) and the other on 29 May.

7 February, 16:00

Two viewers complained about the programme containing scenes of strangulation and an apparent shotgun suicide, as well as the use of bad language (‘bastard’ and ‘bloody’).

Ofcom wrote to Channel Television, who comply this programme on behalf of ITV1, for their comments in relation to Rule 1.3 (children must be protected by appropriate scheduling), Rule 1.11 (violence must be appropriately limited if shown before the watershed), Rule 1.16 (offensive language must not be broadcast before the watershed, unless justified by context), and Rule 2.3 (generally accepted standards).

30 May, 16:00

The broadcaster repeated the episode which prompted a further four complaints from viewers concerned about scenes of violence being viewed by children.

29 May, 16:00

This separate episode attracted six complaints, with viewers disturbed about swearing (‘bastard’ and ‘shit’) and a scene where a character dies after cutting his throat with a barber’s razor during the performance of a play.

Response

7 February, 16:00

Channel Television said it felt the programme was appropriately scheduled between a cookery programme and the evening news, making it unlikely to attract a child audience. It noted, that according to BARB data, this specific episode attracted a child audience of nil. It argued the violence was appropriately limited, as edits had been made to particular scenes with the intention of making the programme suitable for a daytime transmission. It went on to say that this episode had originally been given a ‘12’ certificate by the British Board of Film Classification when released in full on DVD. It also noted that the series is suitably well established for viewers to know exactly what to expect when tuning in.

With regard to the use of offensive language, Channel Television believed the usage was consistent with Ofcom’s research on this issue, and that none of the terms used was inappropriate for the transmission time.

29 May, 16:00

Channel Television regarded the uses of ‘shit’, ‘frigging’ and ‘bastard’ in one scene as justified by the context of that scene. The lead actor in the play had dumped his pregnant mistress – herself in the play – and on-stage she loses control, calls him a ‘shit’ twice and slaps his face. In response, he throws the woman to the ground, causing her to curse off stage to another actor. The channel also noted Ofcom’s own research into the use of the term ‘bastard’, which is regarded as “fairly middling” bad language, and ‘shit’ which is deemed to be a “mild, toilet word”.

In the scene where the actor cut his own throat – after a prop razor had been replaced with a real one – Channel Television maintained that nothing unduly explicit was portrayed on screen. No blood was visible and only the reaction from an actress on stage informed the audience the death was not an act.

Channel Television pointed out that this episode was previously shown in two parts on 15 and 18 September 2006 at 14:00 without any “regulatory interest”.

Decision

Violence

Rule 1.11 states that “Violence, its after-effects and descriptions of violence, whether verbal or physical, must be appropriately limited in programmes broadcast before the watershed and must also be justified by the context”. Ofcom has made clear in Broadcast Bulletin 87 that, in deciding whether material is appropriately scheduled, it must consider “the likely number and age range of children in the audience”. Broadcasters must decide before a programme is broadcast whether it has been scheduled appropriately.

While Midsomer Murders is a crime drama aimed at adults, its scheduling in the afternoon at 16:00 on ITV1 means there is a reasonable likelihood of it being seen by children, some of them unaccompanied. We also noted that many schools were on half-term holidays on 29 May, which may have influenced children’s viewing habits.

Ofcom believes that material which has been originally aired after 20:00 can be broadcast during the day in compliance with the Code provided suitable edits have been made to ensure it is appropriate for a daytime audience, which may include children. It notes that when Midsomer Murders had been shown previously in afternoon slots, the programme remained compliant with the Code.

Although, in its response, Channel Television outlined the cuts it had made to make the programme suitable for a daytime transmission, Ofcom believes the violence shown in this programme was not appropriately limited and justified by the context. In the episode shown on 7 February, and repeated on 30 May, the children were directly complicit in the murders. This gave the programme a greater potential to cause offence and shock. Further, there was a cumulative effect of steadily more graphic murders being featured on the programme (successive deaths made to appear as a shotgun suicide and a suicide by hanging) deliberately carried out by children. This culminated in the final sequence where two sisters dressed as majorettes were seen to delight in the murder of the victim being strangled by their brother. It was these factors together which caused Ofcom concern.

With regard to the edition of Midsomer Murders shown on 29 May 2007, while Ofcom notes that there was no blood shown during the scene of the character’s death, a frontal view of his face (but not showing his throat) filled the screen at the moment he cut his throat, and the sound of his throat being cut was clearly audible as was the rasping gasp of the actor’s final moments. This, combined with the tension of the build up to the murder with shots of the cutthroat razor, made the scene disturbing to view. Overall, it was not appropriate material to be aired during an afternoon timeslot. Ofcom believes here also the violence was not appropriately limited and justified by context for the transmission of a programme at 16:00 .

Offensive Language

Rule 1.16 states: “Offensive language must not be broadcast before the watershed, or when children are particularly likely to be listening, unless it is justified by the context. In any event, frequent use of such language must be avoided before the watershed.”

Channel Television has sought to defend the use of bad language across both programmes, referred to Ofcom’s own research on how audiences regard terms such as ‘bastard’, ’bloody’, ’pissed off’ and ’shit’ and suggested the language was justified in the context of the drama. Although the isolated use of such terms might be justifiable, Ofcom has previously upheld complaints about the frequent uses of such language (e.g. in Broadcast Bulletin 20, against Rosemary & Thyme) in the afternoon on ITV1.

Ofcom received two complaints about the programme previously transmitted at 14:00. However, it determined that the material was not in breach in that instance, given that the drama was shown during the school term (which appears to have started on 4 and 5 September 2006). Therefore the particular likelihood of children being available to view this material was significantly reduced.

Research is clear that this language can be offensive to a number of viewers, especially if they are watching with children. However, we note this could have been a particular likelihood on 29 and 30 May when many schools were on half term holidays. Overall, Ofcom concludes that the frequent use of the bad language complained of was offensive and not justified by the context.

As these broadcasts were in breach of Rules 1.11 and 1.16, the material was clearly not suitable for children and was therefore inappropriately scheduled, in breach of Rule 1.3.

Breach of Rules 1.3, 1.11 and 1.16

My God, I’m My Dad
Ftn, 2 June 2007, 20:00

Introduction

My God, I’m My Dad is an entertainment series broadcast at 20:00 on Ftn and includes interviews and lighthearted comment from celebrities. Ftn is one of a number of channels owned by Virgin Media TV and features entertainment content from other Virgin Media TV channels - Living, Bravo, Trouble and Challenge.

Ofcom received a complaint that the word ‘fucking’ was not ‘bleeped’ in this pre-watershed programme. It considered this complaint under Rule 1.14 (the most offensive language must not be broadcast before the watershed) of the Code.

Response

Virgin Media TV responded that this incident was a result of human error, and that despite ‘bleeping’ five instances of the most offensive language in this programme, it failed to notice this particular one aired at around 20:20 . Virgin Media TV noted that although this was broadcast close to the watershed, it fully acknowledged that this word should not have been included.

It apologised for any offence that this error had caused and assured Ofcom that it had ‘bleeped’ this audible use of the word from this programme so that it would not be aired in any future transmissions. It confirmed to Ofcom that the incorrect version of this programme would not be transmitted again.

Decision

Although this series does not generally attract a significant child audience, it may be of interest to children. Rule 1.14 states that “the most offensive language should not be broadcast before the watershed…” It was therefore not acceptable to broadcast the word ‘fucking’ in this pre-watershed programme.

In this instance, we welcome the apology given by Virgin Media TV and the steps it has taken to ensure this programme is now compliant. However, in light of Ofcom’s recent Note to Broadcasters about offensive language before the watershed (see Broadcast Bulletin 89), Ofcom asks broadcasters to note that it will take firm regulatory action if broadcasters do not fulfil their duty to ensure compliance in this area.

Breach of Rule 1.14

Not in Breach

Diana: The Witnesses in the Tunnel
Channel 4, 6 June 2007, 21:00

Introduction

Diana: The Witnesses in the Tunnel was a history documentary made for Channel 4 by ITN Factual. The programme explored the events leading up to and following the car crash in Paris in 1997 which led to the death of Diana, Princess of Wales. In particular, the programme looked at the role of ‘paparazzi’ photographers in the accident in the Pont d’Alma Tunnel and at the scene in the immediate aftermath of the crash. A number of photographs taken in and around the Tunnel that night were included in the programme.

The first half of the programme dealt with the events leading up to the car crash in the tunnel and events at the scene in the hours following it. It examined, in particular, subsequent claims that the paparazzi had caused the crash, by chasing the car and had hindered medical help and rescue attempts at the scene. It then went on to look at what happened to the photographers and their pictures, taken that night, in the hours and days following the crash. The final section of the programme covered the outcome of the official French investigation into the crash and the impact of the events of the night of the crash on the subsequent lives and careers of the photographers.

Ofcom received 62 complaints from viewers, objecting to the showing of the programme and/or the inclusion of the crash scene photographs. Some found the images used disturbing in themselves. However, others specifically mentioned a request by Princes William and Harry that some of these pictures be removed from the programme and objected to the fact that Channel 4 had not agreed to do so. These complainants believed that Channel 4 had been insensitive and disrespectful to the wishes of the families of the crash victims. Many argued that the controversial images were in any event unnecessary for the programme and indeed that the programme itself added nothing new. A number disputed that it was in the public interest for the programme to be shown at all.

Ofcom considered the programme under Rule 2.3 of the Code (offensive material must be justified by context).

Under the Communications Act 2003 (“the Act”), Ofcom can only consider complaints of infringements of privacy from those directly affected (or those authorised to complain on behalf of those directly affected) by a programme. In the absence of such a complaint Ofcom did not consider issues concerning infringements of privacy.

Decision

The Act requires Ofcom to ensure that “generally accepted standards” are applied to the content of television programmes so as to provide adequate protection for the public from harmful or offensive material. However, Ofcom must secure these standards in “a manner that best guarantees an appropriate level of freedom of expression”. The appropriate level will vary on a case by case basis and depend on a number of factors such as the public interest, the potential level of offence or harm as well as the context of the material.

Rule 2.3 of the Code, which reflects the requirements of the Act, deals with the application of generally accepted standards to programmes and requires that material which may cause offence is justified by the context. Context includes such matters as, in this case, the editorial content of the programme, the service on which it is broadcast and the time of broadcast. It also includes the extent to which programme information can help to bring the nature of challenging content to the attention of the potential audience in advance of the programme.

In assessing this programme against this Rule, Ofcom took into account the content of the programme as a whole, including the disputed photographs. It considered that, whilst some viewers might object on principle to the transmission of the programme or particular elements within it, the images and themes it contained were in line with viewer expectations for this type of investigative historical documentary on Channel 4. Furthermore, the programme was transmitted after the watershed and was preceded with detailed information explaining what was in the programme and the fact that it contained carefully selected and edited photographs of the immediate aftermath of the crash.

In relation to the use of the photographs taken by the paparazzi, and those taken by other witnesses at the crash scene, Ofcom noted that these photographs were integral to the nature and editorial narrative of the programme. They were used as evidence to challenge initial reports that the photographers either caused the crash or obstructed those trying to give medical and other help to the crash victims. The programme also explored the wider story relating to the intended use of the crash pictures by the British press, prior to news of Princess Diana’s death. Both of these issues were clearly a matter of public interest.

Ofcom also noted that Channel 4 had taken steps to reduce the visual impact of the main photographs of the crashed car. In particular, a photograph showing the first French doctor on the scene leaning into the car assisting Princess Diana had been carefully masked so as not to show her face, injuries or any detail. In the photograph neither the doctor nor Princess Diana were identifiable. This black and white image, which was of poor quality, was used to support the doctor’s testimony that although at this stage there were photographers close to the car taking pictures, they did not hamper his attempts to help Princess Diana. Overall the photographs were not used in a gratuitous manner and were not sensationalised.

The subject of this documentary is a highly sensitive issue and such photographs can understandably upset viewers and cause offence. However, this was a serious piece of investigative journalism examining issues and events which remain firmly in the public consciousness. The photographs included in the programme were integral to the credibility of the argument being made and the corroborated first hand testimony. Taking the programme as a whole, Ofcom considered that its contents had been justified by context. The programme was therefore not in breach of the Code.

Not in breach

Fairness and Privacy Cases

Upheld in part

Complaint by Maxwell Hodge solicitors on behalf of European Environmental Controls Ltd
Old Dogs New Tricks, BBC1, 24 August 2006

Summary: Ofcom has not upheld, with the exception of one element, Environmental European Controls Ltd’s complaint of unfair treatment.

This edition of the consumer programme Old Dogs New Tricks investigated a home security company called European Environmental Controls (“ EEC ”). The programme alleged that EEC : sold overpriced security product; targeted vulnerable elderly people; and employed questionable sales techniques.

EEC complained that it had been treated unfairly in the programme as broadcast in that: the programme made negative unsubstantiated comments about EEC ; it had not been given an appropriate opportunity to respond to all of the programme’s allegations; the programme makers ignored information provided by EEC prior to broadcast; the programme makers sought an interview with the owner of EEC unannounced and while correspondence about the possibility of an interview with was still ongoing; and the programme misrepresented the company’s position with respect to whether it intended to make any changes to its business in the future.

In summary Ofcom found as follows:

Ofcom found that significant information from various sources had been included in the programme to support the allegations made against EEC . Furthermore, Ofcom found that prior to broadcast, the programme makers had provided EEC with an appropriate opportunity to respond to all of the significant allegations to be made in the programme.
Ofcom found that the programme as broadcast appropriately reflected all of the relevant information provided by the complainant, with one exception. In this instance, Ofcom found that the programme makers did not accurately describe one aspect of EEC ’s dealings with one of the customers featured in the programme, and this resulted in unfairness to EEC .
Ofcom considered that it was reasonable for the programme makers to seek an interview with the owner of EEC unannounced. Ofcom did not believe this resulted in unfairness to the company as it had been provided with all the relevant information pertaining to the allegations prior to the interview, and the programme makers had exhausted, to a reasonable degree, other methods by which to secure an interview.
Ofcom found that it was not unfair for the programme to state that there had been “no news” from EEC about whether it would change any of its business practices or refund money to the customers featured in the programme. In Ofcom’s view this accurately summarised the fact that EEC had not provided details of any specific changes that it intended to make as a result of the programme’s investigation.

Introduction

On 24 August 2006 , an edition of Old Dogs, New Tricks, an investigative consumer programme presenter by Esther Rantzen and Lynn Faulds Wood, was broadcast on BBC1. This edition investigated a home security company called European Environmental Controls Ltd (“ EEC ”).

The programme explained that the owner of EEC , Mr John Ball, was the former owner of a company called Fireguard, which had previously been investigated in 2004 by the consumer programme, Watchdog. The programme stated that the earlier edition of Watchdog had exposed Fireguard as “pressure selling overpriced and unsuitable fire safety equipment to elderly people”. The programme posed the question, was John Ball “at it again?”

As part of the programme’s investigation, an undercover reporter was placed inside EEC as a call centre operator in order to expose, it was stated, the company’s sales tactics. The reporter was later dismissed by EEC , and secretly recorded footage of his dismissal was included in the programme.

The programme also enlisted the help of security expert Mr Graeme Dow to assess and comment on EEC ’s products and services, and the prices EEC charged for them.

The programme interviewed a former employee of EEC , Mr Albert Mitchell, who said he was so shocked by the company’s sales methods that he quit after one week. Mr Mitchell commented that it was “one of the worst” companies that he had worked for.

Towards the end of the programme, the presenters ‘doorstepped’ the business premises of EEC and interviewed Mr Ball.

Maxwell Hodge Solicitors (“Maxwell Hodge”) has made a complaint on behalf of EEC of unfair treatment in the programme as broadcast.

The Complaint

EEC ’s case

In summary, Maxwell Hodge complained that EEC was treated unfairly in the programme as broadcast in that:

a) The programme statements that EEC products were “wildly overpriced”, “ludicrous”,“outrageous” and that people were “done over” by EEC were unfair to EEC . Maxwell Hodge said the comments could not be justified as they had been tainted by the use of expert witness, Mr Dow, and by the failure of the programme makers to deal with valid points made by EEC about its pricing structures. In relation to this complaint:

i) Maxwell Hodge said that EEC had informed the programme makers, prior to broadcast, that the programme’s use of Mr Dow as an expert witness caused a conflict of interest. Maxwell Hodge explained that Mr Dow had once provided paid work for EEC and was made privy to confidential information concerning the manner in which EEC operated, its products and pricing structures. Maxwell Hodge complained that despite being informed of this conflict of interest, the programme makers included Mr Dow’s expert opinion that EEC ’s equipment was “overpriced”.

ii) Maxwell Hodge maintained that the programme makers ignored explanations provided by EEC about costings and overheads, which affected the price that EEC could afford to sell its products.

b) The programme said that Mr Ball’s company, Fireguard had been put into “liquidation” and that “out of the ashes” of Fireguard had come EEC . Maxwell Hodge said the statements were factually incorrect and had created the false impression that something had been done that was wrong, underhand and detrimental to consumers. Maxwell Hodge said that Fireguard had ceased to trade (which is entirely different from being put into liquidation) and its liabilities had been taken over by EEC .

c) The inclusion of comments by Mr Albert Mitchell, about the sales tactics of EEC , was unfair. Maxwell Hodge said that Mr Mitchell was employed by EEC for one week and was never allocated to a sales team or went out selling on behalf of the company.

d) The BBC did not fairly present the reasons why the undercover reporter had been dismissed. Maxwell Hodge said the reporter had been dismissed for failing to follow telephone scripts provided by EEC . Maxwell Hodge complained that rather than give the true reasons for the dismissal, the BBC instead intimated that the undercover reporter had been dismissed for asking customers if they had a burglar alarm, which gave viewers the unfair impression that EEC deliberately provided potential customers with limited information about the purpose of the phone call in order to effect a sale and take undue advantage of them.

e) The programme makers did not properly consider facts provided by EEC prior to broadcast:

i) The programme reported that an anonymous customer of EEC , had been “ripped off”. EEC complained the way the programme dealt with this issue was one-sided and did not provide a balanced consideration of the facts. In reality the customer, as with all customers, would have been given a price for the security product from a specified price list. The price was accepted, paid and the customer would have had 14 days to cancel or change their mind. The customer did not cancel the order, but 12 months later commented that they had been “ripped off”.

ii) The programme misrepresented EEC ’s customer dealings with a customer named Mrs Pike and failed to accurately describe Mrs Pike’s existing agreement with EEC .

iii) The programme ignored information provided by EEC , prior to broadcast, about the changes which the company had made since the last Watchdog programme (broadcast in 2004). As a result the programme unfairly portrayed EEC ’s current trading practices.

iv) The BBC did not reflect the extensive and detailed information provided by EEC prior to broadcast. This was evidenced by the programme’s use of wording such as: “ripping people off”, “done over”, “how did they get him to fall for that”, “big expensive burglar alarms” and “overpriced products”. The use of such wording was therefore unfair.

f) The programme made two unsubstantiated allegations about EEC , which EEC had not been given a fair opportunity to respond to. These allegations were:

i) “the company is at the forefront of selling…to customers…more than they need and charging more than they can afford”; and

ii) “the Police say the survey is designed to make people frightened”.

g) The programme makers sought an interview with Mr Ball at his work premises unannounced and whilst correspondence about the possibility of an interview with Mr Ball was still ongoing. Maxwell Hodge said this was unjustified and unfair.

h) The programme incorrectly and unfairly claimed that there had been no news from Mr Ball as to whether he was prepared to make changes to the EEC business. Maxwell Hodge said the BBC had been advised prior to broadcast that no response could be made until EEC had viewed the programme. Furthermore the BBC had already been informed that changes would be considered by Mr Ball.

i) The programme’s comment that EEC had been “ripping people off for 15 years” was not justified.

The BBC ’s response to complaint

The BBC prefaced its response to EEC ’s specific complaints by stating that although Fireguard and EEC were separate legal entities, the companies’ underlying interest was identical and that being the case, so too were their moral interests.

a) Comments about the pricing of EEC products were unjustified and tainted by the use of expert witness Mr Dow

The BBC said Mr Dow was an expert witness listed on the Expert Witness Register used by the courts. In 1999, Mr Dow was retained by the court (at EEC ’s request) as a defence expert during a case where eight employees of EEC had been tried for fraud under criminal law. The BBC said that Mr Dow is not and never has been a professional adviser to EEC .

The BBC noted that since 1999 EEC has subsequently changed its equipment, policies and practices. The BBC said that any inside knowledge Mr Dow may have had, therefore, was not only necessarily stale, but rendered obsolete by EEC ’s own changes in both its equipment and its policies.

In summary the BBC did not accept that Mr Dow’s necessarily outdated knowledge constituted a conflict of interest, and therefore there was no question of unfairness in broadcasting his opinion in the programme.

b) The statement that Fireguard had been put into “liquidation” and that “out of the ashes” came EEC

The BBC queried whether comments made about Fireguard could result in unfairness to EEC and noted that to make such a complaint would appear to suggest that there is no practical difference between the two companies. Notwithstanding this, the BBC said the relevant programme narration did not result in unfairness to the complainant.

The BBC said the relevant part of the programme did not leave viewers with an unfair impression of the company, as complained of by Maxwell Hodge. The BBC said that there was no necessary implication of impropriety by the programme’s use of the term “liquidation” as the term could include “voluntary liquidation”. The BBC explained that during such a procedure the directors of a company would make a statutory declaration of solvency. In relation to the phase “out of the ashes” the BBC said that one clear implication of such a phrase was that there was a link between the two companies. BBC said that EEC ’s complaint made it clear that EEC took over at least some of Fireguard’s liabilities and Mr Ball is or was in control of both companies.

c) The inclusion of comments by Mr Albert Mitchell

The BBC said the programme made clear that Mr Mitchell was an experienced salesman with other companies and was shocked by what he had heard from EEC ’s senior staff during his training. Mr Mitchell decided to resign rather than put the methods demonstrated during his training into practice.

The BBC said that it did not understand how, had Mr Mitchell been on his own with a sales prospect, he could have learned anything further about EEC ’s business practices.

d) The undercover reporter’s dismissal

The BBC said that the programme had not intimated that the undercover reporter had been fired for asking customers about burglar alarms (as complained of by EEC ). The BBC said the programme showed the reporter being told by an EEC supervisor that he was fired for not sticking to the script. The BBC said the point about the burglar alarm had been included because it was one example of the reasons given to the reporter for his dismissal (i.e. an instance when the reporter had asked a potential customer if they had a burglar alarm, had been cited by the EEC supervisor as an example of how the reporter had not kept to the EEC telephone script).

e) The BBC responded to the complaint that the programme makers did not properly consider facts provided by EEC prior to broadcast, as follows:

i) Anonymous customer’s allegation of being “ripped off”

The BBC said it took steps to verify how much the anonymous customer had spent on his alarm system from EEC and had had the alarm system examined by security expert, Mr Dow. The programme reported that Mr Dow had found it to be “very, very overpriced”.

ii) EEC ’s customer dealings with Mrs Pike

The BBC explained that the programme makers were provided with conflicting information from Mrs Pike’s son (who had power of attorney over Mrs Pike’s affairs) and from EEC . The BBC said it took due regard of all the information provided and gave a fair summary of the situation in the programme as broadcast when describing that for “Over 15 years Stella Pike has paid John Ball’s companies in excess of eighteen thousand pounds. They’ve refunded a third of that”.

iii) Unfair portrayal EEC ’s current trading practices

The BBC said that it accepted that the company had made some minor changes to its operating procedures since it was last featured on Watchdog in 2004. However, the BBC maintained that the company did not make any fundamental changes to its business approach, as discovered by the programme research that was carried out three months immediately before transmission.

The BBC said the programme took due account of the changes made by Mr Ball’s company to his operating procedures.

iv) Reflection in programme of information provided prior to broadcast

The BBC said that the “extensive and detailed” information that was provided by EEC prior to broadcast was an attempt to bury the producers in excessive paperwork. The BBC stated that it fairly reported clear facts that were provided by the complainant prior to broadcast.

f) Unsubstantiated allegations without fair opportunity to respond

i) “the company is at the forefront of selling…to customers…more than they need and charging more than they can afford”.

The BBC said this point was put to EEC at least twice, once in a letter to the company dated 9 June 2006 , the other during the programme’s interview with Mr Ball. The BBC said that on both occasions an appropriate opportunity to respond was given.

ii) “the Police say the survey is designed to make people frightened”.

The BBC said Mr Ball was asked this question directly during his interview. The question was based on Mr Alan McInnes’ assessment of EEC ’s survey (Mr McInnes is a representative of the Association of Chief Police Officers). The BBC said it was a direct question asked during an interview and maintained that Mr Ball had an adequate opportunity to respond to it.

g) Approach and timing of interview with Mr Ball

The BBC stated that it did not understand how the matters complained of might result in unfairness to EEC in the programme as broadcast.

The BBC acknowledged that the presenters called on Mr Ball unannounced, but noted that Mr Ball consented to an interview.

The BBC said the decision to approach Mr Ball was taken after careful consideration. The programme makers wished to ensure Mr Ball was given a full and adequate opportunity to respond to the issues it had uncovered, and the long letters sent by him to the programme makers dwelt on relatively minor points while ignoring the big issues. The BBC said the letters were typical of the pattern of obfuscation often seen in this kind of case.

The BBC said the fact that Mr Ball went ahead with an interview in such circumstances suggested strongly that he recognized it as a fair way to proceed.

h) Presentation of consideration of “changes to business”

The BBC noted that the relevant programme commentary stated:

Commentary: “There’s no news from John Ball about whether he’ll change any of his business practices or refund money to the customers Lynn and Esther met.”

The BBC said the programme makers asked Mr Ball in pre-transmission correspondence whether he would refund money to any of the customers featured in the programme and whether, in light of what the programme makers had told him, he would change any of EEC ’s business practices. The replies (from EEC and Mr Ball) at no time accepted there were any shortcomings in EEC ’s practices. The BBC maintained the script line was factually accurate and therefore fair.

i) “ Ripping people off for 15 years”

The BBC stated that the programme demonstrated without a doubt that EEC customers had been sold overpriced equipment. As such the expression “ripping off” was entirely appropriate. The BBC said it could be easily demonstrated that this had been happening since the time the company started in 1991. The BBC noted that Mrs Pike had been a customer of EEC for 15 years and for the same period the BBC , Trading Standards and other authorities received related complaints about EEC .

Complainant’s response to the BBC ’s statement

A summary of Maxwell Hodge’s comments is set out below:

In response to the BBC comments relating to the connection between Fireguard and EEC , Maxwell Hodge said that the broadcaster completely ignored the fact that no Fireguard customer suffered as a result of the decision to cease trading through Fireguard and indeed EEC took over all liabilities and responsibilities of Fireguard.

a) Comments about the pricing of EEC products were unjustified and tainted by the use of expert witness Mr Dow

Maxwell Hodge said the BBC ’s statement was factually inaccurate in this regard. Mr Dow was not “retained by the Court” as stated by the BBC . Rather Mr Dow had been engaged and paid by the officers and employees of EEC during litigation proceedings. Maxwell Hodge listed the 17 reports which Mr Dow had been asked to write for the proceedings and maintained that the areas of business covered by the reports overlapped all areas that Mr Dow was asked to comment on by the programme makers of Old Dogs New Tricks. Maxwell Hodge said Mr Dow’s independence was clearly an issue which the BBC chose to ignore despite the matter being draw to their attention.

Maxwell Hodge maintained that the programme makers ignored explanations provided by EEC about costings and overheads, which affected the price at which EEC could afford to sell its products. It was also noted that Mr Dow was made aware when acting on behalf of EEC employees and officers that the overheads of EEC were very different to the majority of companies selling burglar alarms because of their direct sales costs. Similarly the programme makers ignored the fact that EEC clearly informed its customers of the price involved and provided them with fourteen days in which to cancel their orders.

b) The statement that Fireguard had been put “into liquidation” and that “out of the ashes” came EEC

Maxwell Hodge said the programme reference to putting Fireguard “into liquidation” was untrue and designed to show EEC in a bad light. Similarly the reference to EEC coming “out of the ashes” was a deliberate attempt to suggest that EEC was a ‘ Phoenix ’ company, i.e. a company which is known to have a bad reputation.

c) The inclusion of comments by Mr Albert Mitchell

Maxwell Hodge said that EEC was never given an opportunity to comment upon the allegations raised by Mr Albert Mitchell.

d) The undercover reporter’s dismissal

No additional comments.

e) In support of its complaint that t he programme makers did not properly consider facts provided by EEC prior to broadcast, Maxwell Hodge made the following comments:

i) Anonymous customer’s allegation of being “ripped off”

No additional comments.

ii) EEC ’s customer dealings with Mrs Pike

Maxwell Hodge maintained that the programme makers did not refer to the information provided by EEC about Ms Pike, in the programme as broadcast.

iii) Unfair portrayal EEC ’s current trading practices

Maxwell Hodge also commented that the BBC appeared to contradict itself when stating that EEC had “made some minor changes to its operating procedures” since it was last featured on Watchdog in 2004, and earlier in the BBC statement, that EEC ’s “sales procedures went through a complete re-write some two years ago”.

Maxwell Hodge noted that the final purchases of the two EEC customers examined in the programme pre-dated the last Watchdog programme of 2004.

iv) Reflection in programme of information provided prior to broadcast

Maxwell Hodge said the manner in which the BBC responded to this head of complaint implied that most of the paperwork that had been provided by EEC prior to broadcast had been ignored.

f) Unsubstantiated allegations without fair opportunity to respond

i) “the company is at the forefront of selling…to customers…more than they need and charging more than they can afford”.

Maxwell Hodge said EEC responded in full to all allegations put to it, but the BBC chose not to use those replies. EEC requested further information from the BBC in order that it might provide a full and informed response to some of the queries raised but EEC ’s response was apparently not to the satisfaction of the BBC .

ii) “the Police say the survey is designed to make people frightened”.

Maxwell Hodge denied that Mr Ball chose to ignore this allegation during the interview and stated that the tone of the interview was such that Mr Ball was not given an opportunity to finish his sentence in response.

g) Approach and timing of interview with Mr Ball

Maxwell Hodge said the BBC ’s statement ignored the fact that Mr Ball had not refused to give an interview prior to broadcast, but was awaiting clarification on information from the BBC which never arrived. The interview was therefore contrived and conducted in a manner which the BBC unilaterally decided upon. By turning up unannounced, they gave Mr Ball no real option but to participate. Had he refused to be interviewed at that stage no doubt the broadcast would have shown that refusal.

h) Presentation of consideration of “changes to business”

Maxwell Hodge said the BBC ’s comment that there had been no news as to whether Mr Ball was prepared to make changes to the EEC business was factually incorrect. A letter from the complainant to the programme makers on 18 July 2006 fully explained that it would be misleading to change the EEC telesales script in the way suggested by the programme’s presenters, as to do so would be misleading. Maxwell Hodge noted that this explanation was not referred to in the programme.

i) “ Ripping people off for 15 years”

Maxwell Hodge did not accept that the programme “demonstrated without a doubt” that EEC had sold over priced equipment, as claimed by the BBC .

The BBC ’s second statement in response to complaint

In summary, the BBC responded as follows:

a) The programme’s use of Mr Dow as an expert witness

Neither the BBC nor Mr Dow accepted that Mr Dow had a duty of confidentiality to Mr Ball and EEC . Mr Dow’s professional code of conduct did not preclude him from giving interviews or evidence that may not be in the interests of his former clients. His comments in the programme reflected his professional judgement in 2006, and what he said in 1999, in a very different context, had no bearing on the matter.

The BBC referred to the information provided by EEC prior to broadcast about costings and overheads. The BBC said the information provided was “all bare assertion and was not “backed up by any evidence”.

b) The statement that Fireguard had been put into “liquidation” and that “out of the ashes” came EEC

The BBC maintained that the programme contained no suggestion that any customer had been disadvantaged (beyond being overcharged) by the demise of Fireguard.

c) The inclusion of comments by Mr Albert Mitchell

No additional comments.

d) The undercover reporter’s dismissal

No additional comments.

e) i) Anonymous customer’s allegation of being “ripped off”

The BBC said the programme makers advised Mr Ball of the case of the anonymous caller in its letter of 9 June 2006 . Mr Ball responded to the letter, seeking clarification on a number of points, but did not refer to the anonymous caller or ask for details which might enable him to identify the precise case. The BBC said that Mr Ball therefore did not respond appropriately, rather, he simply ignored it.

ii) EEC ’s customer dealings with Mrs Pike

No additional comments.

iii) Unfair portrayal EEC ’s current trading practices

The BBC said there was no reference in the programme to changes in operating procedures, which were, in any event, not the same as sales procedures.

iv) Reflection in programme of information provided prior to broadcast

No additional comments.

f) Unsubstantiated allegations without fair opportunity to respond

i) “the company is at the forefront of selling…to customers…more than they need and charging more than they can afford”.

No additional comments.

ii) “the Police say the survey is designed to make people frightened”.

The BBC disagreed that Mr Ball was not allowed to finish his response to the allegation during his interview at the EEC office.

g) Approach and timing of interview with Mr Ball

The BBC said the correspondence between the programme makers and EEC would demonstrate that all the material supplied by EEC was carefully considered. The BBC said that though much time was spent arguing the same points, there were key issues and allegations that were repeatedly not addressed, which was why the programme makers ultimately visited the company’s office.

h) Presentation of consideration of “changes to business”

The BBC maintained that the programme’s statement that “There’s no news from John Ball about whether he’ll change any of his business practices or refund money to the customers Lynn and Ester met” was accurate and fair, given the correspondence between the programme makers and EEC prior to broadcast.

i) “Ripping people off for 15 years”

No additional comments.

Decision

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

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

EEC ’s complaint was considered by Ofcom’s Executive Fairness Group. In reaching its decision, the Group had regard for a copy of the programme, the programme transcript, both parties’ written submissions (including supporting documents), and copies of relevant unedited programme recordings.

a) Ofcom first considered EEC ’s complaint that the programme statements, that EEC products were “wildly overpriced”, “ludicrous”, “outrageous” and that people were “done over” by EEC , were unfair. Maxwell Hodge said the comments could not be justified as they had been tainted: i) by the use of expert witness, Mr Dow; and ii) by the failure of the programme makers to deal with valid points made by EEC about its pricing structures. (It should be noted that Ofcom will consider the description “done over” at Head e) iv) below.)

In reaching its decision Ofcom took account of Practice 7.9 of Ofcom’s Broadcasting 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.

Ofcom considered the two elements of this complaint in turn.

i) Ofcom noted that EEC had stated that it had informed the programme makers, prior to broadcast, that the programme’s use of Mr Dow as an expert witness caused a conflict of interest as he had once provided paid work for EEC , and was made privy to confidential information concerning the manner in which EEC operated, its products and pricing structures. Ofcom also noted from the correspondence between the parties that EEC believed that Mr Dow’s advice for this programme contradicted the advice provided by him in 1999 (when he provided his services to EEC ).

Ofcom noted that it was agreed in the submissions provided by both parties that Mr Dow is a security consultant who has acted as an expert witness. Also that he has advised the Association of British Insurers and the National Security Inspectorate. In the circumstances, it is Ofcom’s opinion that Mr Dow was appropriately qualified to give his opinion as an ‘expert’ in the field. Ofcom noted that, in the programme as broadcast, Mr Dow was asked to inspect the security equipment which had been sold to the customers featured by the programme, and also to give his opinion about the value of that equipment.

Ofcom considered EEC ’s submission that Mr Dow had once provided paid work for it, and as such it would unfair for the programme makers to rely on his “tainted” opinion, and had advised the programme makers as much prior to broadcast.

Ofcom considered that Mr Dow was an expert in his field. His specific knowledge of security matters qualified him to give advice to any individuals or organisations who sought it. In this instance, Ofcom did not see that any past employment with EEC would necessarily hinder his ability to lend his knowledge and expertise to the programme makers. Therefore it is Ofcom’s view that Mr Dow’s work history did not prevent him from acting as a security expert for the programme makers.

Ofcom also had regard to the complainant’s comments that Mr Dow’s opinion (as given in the programme as broadcast) appeared to contradict the advice he gave on EEC ’s behalf in the past. Ofcom considered that it was not relevant that Mr Dow’s opinion of EEC ’s product offering had developed or changed over a time span of seven years, because Mr Dow remained a current expert on security matters and as such was qualified to give his opinion in the programme as broadcast. In Ofcom’s view it was therefore not unfair for the programme makers to use Mr Dow’s opinion.

Taking these factors into account, Ofcom found that it was not unfair to EEC for the programme to include the expert opinion of Mr Dow.

ii) Ofcom next turned to EEC ’s complaint that the programme makers failed to deal with valid points made by EEC about its pricing structures. Specifically that the programme makers ignored explanations provided by EEC about costings and overheads, which affected the price at which EEC could afford to sell its products.

In Ofcom’s opinion, the programme’s allegation, that EEC ’s products were overpriced, was based on the assessment that the same products that EEC sold could be purchased for a much cheaper price elsewhere. In Ofcom’s opinion, this was a reasonable observation for the programme to make and had been supported by Mr Dow’s expert opinion (who estimated that the EEC customers featured in the programme had paid more than double what he considered to be a fair price for the security systems installed in their homes). Furthermore, Ofcom did not believe that the programme makers’ decision not to refer to details about EEC ’s pricing structures resulted in unfairness. In Ofcom’s opinion, the fact that EEC had a pricing structure, which caused it to sell its products and services at a much higher price than other retailers, was unlikely to have given viewers a more favourable opinion of the company. Ofcom therefore found no unfairness regarding the programme’s assessment of EEC ’s pricing structure.

Given the above findings, Ofcom lastly considered whether it was unfair for the programme makers to describe EEC ’s prices as “wildly overpriced”, “ludicrous”, and “outrageous”. Ofcom found that given Mr Dow’s assessment of the prices that EEC charged for its products and servicing agreements, it was not unfair for the programme makers to use these descriptions in the programme as broadcast. In the circumstances, Ofcom found no unfairness to EEC in relation to this head of complaint.

b) Ofcom next considered EEC ’s complaint that the programme statement, that Fireguard had been put into “liquidation” and that “out of the ashes” came EEC , was unfair because it was factually incorrect and had created the false impression that something had been done that was wrong, underhand and detrimental to customers.

In reaching a decision about this complaint Ofcom took into account Practice 7.9 which relates to the proper consideration of facts (detailed above).

Ofcom noted that the programme as broadcast stated that:

Presenter 1: “In 1991 – John Ball the owner put [Fireguard] into liquidation.”

Presenter 2: “Okay – so that was that – out of the way.”

Presenter 1: “Out of the ashes came a company called EEC .”

From the parties’ written submissions Ofcom noted that it was agreed that Fireguard ceased to trade in 1994 and its liabilities were taken over by EEC . Fireguard was then struck off the Companies Register on 1 July 2003 on application by the company after it had been dormant for approximately 8 years. Ofcom also noted that the term liquidation is not necessarily pejorative e.g. it can refer to instances such as voluntary liquidation.

Taking these factors into account, it is Ofcom’s view that it was not unfair for the programme makers to use the familiar word “liquidation”, as doing so did not allege wrongdoing on the part of the company or EEC . Rather the term recognised that the company had ceased trading.

In relation to the phrase “out of the ashes”, Ofcom similarly noted that the statement was not critical of either company. In Ofcom’s view the phrase implied a link between the companies, which was justified, given that Mr Ball’s association with both companies, and the fact that EEC took over all of Fireguard’s liabilities.

In the circumstances Ofcom found that the programme’s use of the word “liquidation” and the phrase “out of the ashes” did not result in unfairness to EEC .

c) Ofcom next considered EEC ’s complaint that it was unfair for the programme to report former EEC employee Mr Mitchell’s opinions of EEC in the programme as broadcast as he had never been part of an EEC sales force and his criticisms were incapable of substantiation. EEC also said that is was not given an opportunity to respond to Mr Mitchell’s criticisms.

In reaching a decision about this complaint Ofcom took account of Practice 7.9 which relates to the proper consideration of facts. In addition Ofcom took account of Practice 7.11 which states that, if a programme alleges wrongdoing or incompetence or makes other significant allegations, those concerned should normally be given an appropriate and timely opportunity to respond.

From a recording of the programme, Ofcom noted that the programme’s commentary made clear that Mr Mitchell was employed by EEC for a short period of time:

Commentary: “The [presenters] file also has the number of a former EEC employee who was so shocked by their sales methods, he quit after just one week”.

Ofcom also considered Mr Mitchell’s unedited interview in which he described that during his week’s employment he had been able to listen to calls generated from the EEC call centre.

On the information provided to it, Ofcom considered that the programme as broadcast accurately described Mr Mitchell’s employment with EEC , and it was reasonable for the programme makers to include Mr Mitchell’s comments in relation to the company’s sales methods given that he had witnessed some of them first-hand during his week’s employment.

In the programme as broadcast Mr Mitchell criticised EEC for targeting older people:

Mr Mitchell: “They were sort of pushing a little bit – not too pushy, but most of them were hitting the old dears, the old people”.

Ofcom noted that the programme makers offered EEC an opportunity to respond to the allegation that EEC targeted elderly people on 9 June 2006 . This allegation was later followed up again during the presenters’ interview with Mr Ball. Ofcom also noted that the company’s response to this allegation (that all customers had 14 days in which to cancel their orders), had been reflected in the programme as broadcast: “One of the things that we need to look at is this, every single person that buys from EEC has 14 days in which to cancel the contract. Statutory requirements say that we have got to give seven days” .

Taking all these factors into consideration, Ofcom found that the programme accurately described Mr Mitchell’s work history with EEC and it was reasonable for the programme makers to include Mr Mitchell’s comments in relation to EEC . Furthermore, Ofcom found that EEC had been given an appropriate opportunity to respond to Mr Mitchell’s allegations and its response was properly reflected in the programme. Accordingly, Ofcom has found no unfairness resulted to EEC in relation to this complaint.

d) Ofcom considered EEC ’s complaint that the programme makers did not fairly present the reasons why the undercover reporter had been dismissed, and that the programme intimated that the undercover reporter had been dismissed because he had failed to follow the EEC sales script. In doing so, and by not detailing the full sales script during the programme, EEC complained that the programme makers gave viewers the impression that EEC deliberately provided potential customers with limited information in order to effect a sale and to take undue advantage of them.

Ofcom considered an unedited recording and transcript of the undercover reporter’s dismissal meeting, and a letter of dismissal from EEC , dated 26 May 2007 . The letter of dismissal listed two reasons for EEC ’s decision: the misuse of the EEC sales scripts (which could be misleading to potential clients); and, the undercover reporter’s overall level of performance. In support of these reasons, the letter provided a summary of five of the reporter’s phone calls which EEC deemed to be a misuse of its scripts. The letter did not give specific details about the reporter’s overall level of performance. It was clear to Ofcom from the letter of dismissal, and the unedited recording of the dismissal meeting, that the primary reason for firing the reporter was his misuse of the script.

Ofcom noted that the programme as broadcast described the reasons for the undercover reporter’s dismissal as follows:

Commentary: “…it looks like Ron’s been rumbled, and it gets worse, he’s been fired.

[the presenters] watch the footage of him being sacked. Ron’s final despatch shows his sacking. He was told he hadn’t stuck to the script”.

In Ofcom’s view, the above commentary accurately summarised the reasons for the undercover reporter’s dismissal. Ofcom noted that this summary was followed by footage filmed during the dismissal meeting:

EEC Manager: “And then you cannot ask somebody directly ‘do you have a burglar alarm?’ Again it’s not in the script”

Presenter: “Shame on him for mentioning burglar alarms – what do they sell?”

Ofcom noted that this example was also referred to in the dismissal letter. After comparing this extract with the unedited recording of the meeting and the dismissal letter, Ofcom found that the broadcast material reflected the content of the unedited recording.

In relation to EEC ’s complaint that the programme gave viewers the impression that EEC deliberately provided potential customers with limited information in order to effect a sale and to take undue advantage of them, it is Ofcom’s view that the purpose of the presenter’s comment, “Shame on him for mentioning burglar alarms – what do they sell?” was to specifically make such a point. Ofcom also considered that in the context of the programme, it was reasonable for the presenter to question why explicitly asking a potential customer if they had a burglar alarm was a breach of EEC company policy.

Ofcom noted that the programme makers put the allegation, that EEC ’s scripts did not make explicit the purpose of the EEC ’s visits, to the company in writing on 9 June 2006 and during an interview with Mr Ball. Mr Ball’s response at the time was reflected in the programme as broadcast:

Presenter: “Why don’t you say [that you want to sell burglar alarms] to people?”

Mr Ball: “We do say. We say we’ll show you a range of products and if you see something you’d like to purchase on the day you can make that decision.”

Taking all these factors into consideration, Ofcom found that the programme accurately summarised why the undercover reporter had been dismissed, and provided an example of one of the reasons cited by the company for the dismissal. Furthermore the presenter posed a legitimate query about whether the reason for dismissal implied a lack of clarity in the EEC scripts. Ofcom also found that such an enquiry did not result in unfairness to EEC as it had been given an opportunity to respond to the criticism prior to broadcast and its response had been appropriately represented in the programme as broadcast.

e) Ofcom considered EEC ’s complaint that the programme makers did not properly consider facts provided by EEC prior to broadcast.

When considering EEC ’s complaints under this Head, Ofcom took account of Practice 7.9 of the Code which relates to proper consideration of facts (detailed above). Ofcom also took account of Practice 7.11 which relates to the offering of an appropriate opportunity to respond (detailed above).

i) Ofcom considered EEC complaint that the programme’s treatment of its dealings with an “anonymous customer” was one-sided and did not provide a balanced consideration of facts.

Ofcom noted that prior to broadcast the programme makers advised EEC of their intention to feature the experience of an anonymous customer in its report, and set out the significant allegation to be made in the programme, and sought a response. These related to Mr Dow’s assessment that the EEC security system was overpriced and the workmanship of the installation was of a poor standard. In addition, the example of the anonymous customer was put to Mr Ball during his interview.

The response from EEC and Mr Ball at the time was that they did not agree with Mr Dow’s opinion that the system was overpriced, and stated that all customers have 14 days in which to cancel their orders. Ofcom noted that the programme included footage of Mr Ball explaining EEC ’s 14 day cancellation policy and his response to the allegation that he sold overpriced products: “Hang on one second here…it is not that the customer has come along and spent £7,000. But in a lot of cases that you quoted to me, it’s over a number of years…”

In Ofcom’s view, EEC was provided with a fair opportunity to respond to the allegations in relation to the anonymous customer and the company’s response was fairly reflected in the programme as broadcast. In these circumstances, Ofcom has not upheld this part of EEC ’s complaint.

ii) Ofcom next considered EEC ’s complaint that the programme misrepresented its customer dealings with Mrs Pike and failed accurately to describe Mrs Pike’s existing security agreement.

Ofcom noted that the programme as broadcast described that Mrs Pike had been a customer of EEC and Fireguard, and had spent over £18,000. The programme recounted that in 1998 Mrs Pike had written to EEC , advising that she did not wish to purchase another contract as the charges were far too high for her, and that following this letter, Mrs Pike had been persuaded to spend an additional £1,500 with the company. In addition, the programme included an interview with Mrs Pike’s son who explained that “two years ago, she paid three and a half thousand pounds for a three year service agreement and that doesn’t even start till December 2006, so that’s not going to finish till she’s about 92”.

Ofcom first considered the total figure spent of £18,000 as given in the programme as broadcast:

“Over 15 years, Stella Pike has paid John Ball’s companies in excess of eighteen thousand pounds. They’ve refunded a third of that, but Stella’s son is still furious” .

Having considered the paperwork relevant to Mrs Pike’s case, it is Ofcom’s view that the above summary was fair. In reaching this decision Ofcom found that the summary appropriately attributed the £18,000 to both of Mr Ball’s companies (i.e. Fireguard as well as EEC ) and explained that a proportion of the total £18,000 had been refunded. In the circumstances, Ofcom was satisfied that when stating the total amount spent by Mrs Pike, the programme makers took reasonable care to satisfy themselves that material facts had not been presented, disregarded or omitted in a way that is unfair to EEC . Ofcom found no unfairness to EEC in this respect.

Ofcom next considered the programme’s description of the circumstances surrounding Mrs Pike’s letter to EEC in 1998 and the subsequent renewal of her security service contract. Ofcom noted that the relevant segment of the programme stated:

Presenter: “I’ve found a letter written by your Mum to the company, to EEC , in 1998. She is saying – I do not want another contract: ‘As I suspected’ she says ‘these charges amounting to £825 a year are far too high for me to consider renewing my contract with EEC ’.

It makes it quiet clear – that’s that’s, no more monitoring, no new contracts please. Should be clear enough”.

Mr Pike: “But – they sent a salesman round one week later on the pretence of actually doing some service, I think, even though the service agreement had finished – and it was at that point they persuaded my Mum to write out a cheque for £1500.”

Ofcom reviewed the relevant information provided by both parties. While Ofcom noted that the above summary did not list each and every contact that Mrs Pike had with EEC at that time, it is Ofcom’s view that the summary fairly represented the material facts of the incident and did not omit or disregard significant pieces of information in a way which would have been unfair to EEC . Accordingly, Ofcom found no unfairness to EEC in this respect.

Ofcom lastly considered the programme’s description of Mrs Pike’s existing agreement with EEC . Ofcom noted, from the information provided, that when the programme was made (around June 2006) Mrs Pike was not a fee paying customer of EEC . According to the paperwork, in July 2005 Mrs Pike’s son intervened on behalf of his mother to secure a refund of all current and future contracts (i.e. contracts which Mrs Pike had purchased but that would not begin until a date in the future). These refunds were given as of 13 June 2007 . At the same time EEC also gave Mrs Pike a free two year monitoring service that would end on 27 July 2007 . Therefore, at the time that the programme was being made, and when it was broadcast, Mrs Pike was no longer financially committed to EEC , and in fact was receiving a free service.

Ofcom noted that this situation did not correspond with the information that was presented in the programme:

Commentary: “Stella has short term memory loss and is unaware that in fact she’s paid out a lot more, and has been spending money on new contracts with EEC for years. Stella’s son Rob only discovered what was going on when it was too late.”

Presenter: “What your Mum said to me was that she’d only paid for the equipment, she didn’t pay for anything after that.”

Mr Pike: “Yeah well the trouble is my Mum isn’t quite, she doesn’t quite understand how much money she’s been writing these cheques out for.”

Presenter: “She also said she doesn’t use [the security system] now.”

Mr Pike: “Yeah well that’s the other thing – only two years ago she paid three and a half thousand pounds for a three year service agreement and that doesn’t even start till December 2006 so that’s not going to finish till she’s about 92.”

In Ofcom’s opinion, viewers were likely to understand from this comment by Mr Pike that Mrs Pike was an ongoing customer of EEC and remained under contract to the company until December 2009. As noted above, this was not the case.

Ofcom noted that following Mr Pike’s comment, the programme commentary stated that EEC had refunded a third of Mrs Pike’s money: “[ EEC ] has refunded a third of [the money spent by Mrs Pike] but [Mr Pike] is still furious”. However, after this commentary the programme included another comment (by the presenter) which indicated that Mrs Pike remained under contract to EEC (which was not true):

Presenter: “Actually [Mrs Pike]’s paying for a service contract which doesn’t start until the end of the year.”

Taking consideration of the programme sequence as a whole, while Ofcom acknowledged that the programme makers did accurately describe that EEC had refunded a third of Mrs Pike’s money, it considered that such a statement did not correct the misleading impression given about Mrs Pike’s existing agreement with EEC (i.e. that Mrs Pike was not under contract to EEC any longer and that EEC had refunded all current and future contracts). Ofcom found that by including the statements by Mr Pike and the presenter (above) and not explaining that the contract had been refunded, viewers were likely to be left with an unfairly negative impression of EEC . In the circumstances, Ofcom has decided that this part of the programme as broadcast resulted in unfairness to EEC .

iii) Ofcom considered EEC ’s complaint that the programme makers ignored information provided to them, about the improvements which the company has made since the last Watchdog programme in 2004.

Having viewed a recording of the programme, it is Ofcom’s opinion that the introduction made it clear that the programme would focus on Mr Ball’s company EEC , with a view to investigating whether, over the course of its existence, it had treated its customers fairly. It was not a programme about the company’s developments since the last Watchdog programme, as the complainant appears to suggest. In Ofcom’s view, given the clearly established direction of the programme, the programme makers were entitled to focus on any customers of EEC , provided it presented the relevant customer dealings in a way which did not result in unfairness. Ofcom was not persuaded by the complaint that the programme makers were required to include details about any particular improvements since 2004, if those improvements did not significantly affect the nature of the allegations made in the programme. On the information provided to Ofcom, it considered that the programme’s criticisms of EEC , in all but one instance (see Ofcom’s finding at Head e) ii) above), were not significantly remedied by any improvements by EEC since 2004. In the circumstances, Ofcom found no unfairness to EEC in relation to this complaint.

iv) Reflection in programme of information provided prior to broadcast

Ofcom next considered EEC ’s complaint that the BBC did not reflect the extensive and detailed information provided by EEC prior to broadcast. EEC said this was evidenced by the programme’s use of the phrases such as: “ripping people off”,“done over”, “how did he get him to fall for that”, “big expensive burglar alarms” and “over priced products”. EEC said the use of such expressions were unfair.

In considering this complaint Ofcom noted that the quotes referred to above appeared to relate to two types of allegations: first that EEC targets vulnerable people, and secondly that EEC sells overpriced security equipment which is too complex for the needs of their customers. Ofcom’s decision in relation to the second allegation can be found at Head a) and Head f) i), which found no unfairness. This head of the decision will therefore focus on the first complaint regarding the targeting of vulnerable people.

In reaching its decision, Ofcom took account of Practice 7.9 relating to proper consideration of material facts (detailed above). Ofcom also took account of Practice 7.11 (detailed above) which relates to the offering of an appropriate opportunity to respond.

Ofcom viewed a recording of the programme and noted that throughout the report, the programme makers provided information to the viewers to support their allegation that EEC targeted elderly people. This information included undercover footage of one of EEC ’s employees describing the importance of targeting this market:

EEC employee: “Well your main market is old people that you’re gonna be speaking to, so you can’t feel guilty if they are old.

They’re your main market – you’ve got to turn them round.

Unfortunately I know it sounds nasty but they’re the easiest ones to turn around as well.”

The programme makers also interviewed relatives of elderly customers of EEC who believed EEC had taken advantage of their relatives’ vulnerability.

Based on the information provided in the programme, it is Ofcom’s view that the programme makers gathered significant material from a variety of sources to the allegation that EEC targeted elderly people who were vulnerable. Ofcom considered this was a serious allegation and as such merited an opportunity to respond.

Ofcom noted that this allegation was put to EEC in both written correspondence prior to broadcast and during Mr Ball’s interview. Furthermore, Ofcom noted that EEC ’s response at the time (that all customers had 14 days in which to cancel their orders, and that EEC ’s phone scripts advise prospective customers that they will be shown a range of products when their security advisor arrives at their home to conduct a security survey) was represented in the programme as broadcast.

Taking these factors into account Ofcom found that the programme makers took reasonable care to ensure that material facts were not presented, disregarded or omitted in a way that was unfair to EEC . Ofcom therefore found no unfairness in this respect.

f) Unsubstantiated allegations without fair opportunity to respond

Ofcom next considered EEC ’s complaint that the programme included two unsubstantiated allegations to which it was not given a fair opportunity to respond.

In reaching a decision in relation to this complaint Ofcom took account of Practice 7.11 which relates to the offering of an appropriate opportunity to respond (outlined above).

Ofcom considered each allegation separately:

i) The first statement of complaint was:

“the company is at the forefront of selling…to customers…more than they need and charging more than they can afford” .

Ofcom considered that this was a significant allegation to which EEC was entitled to respond.

Ofcom considered the pre-broadcast correspondence between EEC and the programme makers. It noted that, on 9 June 2006 , the programme makers provided EEC with a list of allegations which it intended to include in the programme and sought the company’s response. The letter stated “We will be talking to customers who feel they have been sold overpriced, inappropriate and shoddily installed safety equipment and to people who are angry about the high costs and long contracts that their elderly relatives have signed up to”. Ofcom also noted that the same allegations were put to Mr Ball during his interview with the presenters: “How can you possibly think, as a man who runs an £11 million company that an old person needs £7,000 worth or £12,000 or £19,000 worth of security on a small house?” Ofcom noted that this question along with Mr Ball’s response was represented in the programme.

Having viewed a recording of the programme it is Ofcom’s opinion that viewers were likely to understand that the comment by the presenter, was a summary of the way that the featured customers (and their relatives) felt about the purchases they had made from EEC . Ofcom considered that EEC had been afforded an opportunity to respond to these allegations and the programme makers were justified in summarising the sentiments of the programme contributors, in this way.

Accordingly Ofcom found no unfairness in this respect.

ii) Ofcom next considered that second comment complained of by EEC :

“the police say the survey is designed to make people frightened”.

EEC complained that no such comment was made by the police nor was the allegation put to it prior to broadcast for a response.

As noted by the BBC in its first statement, the comment was based on the comments by Mr Allan McInnes of the Association of Chief police Officers. During his full untransmitted interview, Mr McInnes made the following comments:

Presenter: “That’s a very interesting point. It [the survey] also seemed to us to be a bit intimidating. Because it’s really asking you isn’t it to think of all the dangers that might be present in your neighbourhood and so on?”

Mr McInnes: “Yes. It’s asking what your perception of crime is. Now generally asking the public they’ll always think crime has gone up, whereas statistics say burglary has in fact gone down in the last 5 to 7 years. But all these questions aim towards - I would say - increasing people’s fear, or giving the salesman information about the individual that he can use to lead you into another area”.

Ofcom considered that based on these comments made during an interview for the programme, by an ACPO representative, it was reasonable for the programme makers to make the comment that “the police say the survey is designed to make people frightened”.

Ofcom considered that, given the significance of the allegation, it was appropriate that EEC be given an opportunity to respond.

Ofcom noted that the programme makers had written to EEC prior to Mr Ball’s interview that ACPO had reviewed the survey and ACPO had concluded that it was designed to collect information from the consumer in order to sell burglar alarms. Ofcom considered that this information together with the direct statement by the presenter to Mr Ball during his interview that: “The police say the survey is designed to make people frightened?” provided Mr Ball and his company with adequate information to be able to respond to the comment.

Taking these factors into account, Ofcom therefore found no grounds for the complaint that the statement was false or that EEC had not been afforded an opportunity to respond to it. Accordingly, Ofcom found no unfairness in relation to this part of the complaint.

g) Approach and timing of interview with Mr Ball

EEC complained that the programme makers sought an interview with Mr Ball at his work premises unannounced and whilst correspondence about the possibility of an interview with Mr Ball was still ongoing.

In reaching a decision in relation to this complaint Ofcom took account of Practice 7.11 which states that if a programme alleges wrongdoing or incompetence or makes other significant allegations, those concerned should normally be given an appropriate and timely opportunity to respond.

Ofcom had regard to the correspondence between the parties prior to Mr Ball’s interview. The correspondence occurred between 9 June 2006 and 10 July 2006, and in that time the programme makers wrote to Mr Ball seven times. The written correspondence from the programme makers fully informed EEC of the allegations to be included in the programme and also responded to the questions and requests for further information that had been made by the complainant during the course of the written correspondence.

Ofcom noted from the correspondence that the programme makers made repeated requests for an interview with Mr Ball. While Ofcom accepts that the “possibility of an interview” was never refused outright by the complainant, it is Ofcom’s opinion that the company was clearly reluctant to set a firm date for the interview, despite being provided with what Ofcom considered to be sufficient information to be able to respond to the allegations.

In the circumstances, Ofcom considered that it was reasonable for the programme makers to seek an interview with Mr Ball, unannounced, so that he could respond (on behalf of EEC ) to the programme allegations. Ofcom did not believe that this resulted in unfairness to the company as it had been provided with all the relevant information pertaining to the allegations prior to the interview, and the programme makers had exhausted, to a reasonable degree, other methods by which to secure an interview.

h) Presentation of consideration of “changes to business”

EEC complained that the programme incorrectly and unfairly claimed that there had been no news from Mr Ball as to whether he was prepared to make changes to the EEC business.

The relevant piece of programme commentary stated that:

“There’s no news from John Ball about whether he’ll change any of his business practices or refund money to the customers Lynn and Esther met.”

In reaching its decision in relation to this complaint Ofcom took account of Practice 7.9 which concerns the proper consideration of facts (as outlined above).

Ofcom noted that during Mr Ball’s untransmitted interview the presenters made enquires about whether Mr Ball would refund monies to the EEC customers to be featured in the programme. At that time, Mr Ball responded that he would look over the relevant paperwork.

After the interview, the following written exchanges took place in relation to whether or not EEC would make changes to its business practices or refund any of the customers’ monies.

EEC ’s letter to the programme makers, 18 July 2006

“I have noted the recommendations about provision of a Survey to ACPO and would be happy for Mr Tulip and my training officer to meet with their representative in order to fully work through our survey and its supporting documentation. In common with our existing practices all feedback would be welcomed and all commendations fully evaluated and, where necessary, actioned. As you are fully aware in the past whenever recommendations have been made by the BBC or Trading Standards, these have been taken on board and actioned where appropriate. In that regard I refer you to the content of our letter of 12 July 2006 .”

The programme makers’ letter to EEC , 27 July 2006

“Mr Ball said in the filmed interview that he always makes changes in response to issues raised by BBC programmes. Can he confirm what action he now plans to take, in light of the point we have made? In particular, does he plan to make refunds to Jean Hine and Stella Pike? Does he intend to make the company’s scripts clearer to make it obvious to potential customers that the EEC home security survey is in fact about selling burglar alarms?

Mr Ball may well intend to make further changes to his company’s practice. We would of course be interested in hearing about these with a view to reporting them within the programme.”

Letter from Maxwell Hodge on behalf of EEC to the programme makers, 31 July 2006 :

“If, as you say, Mr Ball has commented in his filmed interview that “…he always makes changes in response to issues raised by BBC programmes” he clearly cannot “respond” at this stage because he has not seen the programme. The matter will be revisited once the programme has been broadcast”.

Letter from the programme makers to Maxwell Hodge, 3 August 2006

“Rather than arguing over semantics, we want to reflect in the programme what Mr Ball will be doing as a result of the cases we have already highlighted to him in considerable detail.

In particular, will he refund any money to Mrs Jean Hine…and will he refund any money to Mrs Pike?

It would obviously be better for all concerned were able to include any decision on that within the programme”.

Ofcom noted that there was no response from either Maxwell Hodge or EEC to this letter.

Taking into account the correspondence between the parties, Ofcom considered that the statement that “There’s no news from John Ball about whether he’ll change any of his business practices or refund money to the customers Lynn and Esther met” accurately summarised that EEC had not provided the programme makers with details of any specific changes that the business intended to make, as a result of the programme’s investigation. In the circumstances, Ofcom found no unfairness in this respect.

I) “ Ripping people off for 15 years”

Ofcom lastly considered EEC ’s complaint that it was unfair for the programme to state that EEC had been “ripping people off for 15 years”. EEC said the programme only referred to one customer who had been a client of EEC ’s for 15 years, and therefore there was no justification for making so broad a statement.

In reaching a decision in relation to this complaint Ofcom took account of Practice 7.9 relating to proper consideration of facts and Practice 7.11 which relates to the offering of an appropriate opportunity to respond (as outlined above).

Ofcom noted that this description was used in the opening sequence. In Ofcom’s opinion, given the positioning of the statement, viewers were likely to understand that the comment was a summary of the programme maker’s findings against EEC .

Throughout the course of the programme, a number of serious allegations were made against EEC . One of the main allegations was that EEC sold overpriced security products. Ofcom noted that this allegation was based on the opinion of EEC ’s customers interviewed for the programme and on the expert opinion of Mr Dow. In the programme, Mr Dow explained that he believed that the EEC products, which he had seen, were expensive and overpriced when compared to what other companies in the market were charging (Ofcom also noted that EEC was offered an opportunity to respond to these criticisms prior to broadcast).

Ofcom was not provided with any information to suggest that the security items which Mr Dow examined were not typical of EEC ’s product range, nor that the price of the inspected products was out of line with EEC ’s overall pricing structure. Furthermore, Ofcom noted that the products examined by Mr Dow had been purchased in different years over the course of EEC ’s 15 year existence. In the circumstances, Ofcom considered that Mr Dow’s comments in relation to EEC ’s prices were in effect comments about EEC ’s pricing strategy in general. As such, Ofcom found that it was not unfair for the programme makers to summarise its allegations against EEC (for which EEC had been given an opportunity to respond) as it did in the programme as broadcast.

Accordingly, EEC ’s complaint of unfair treatment has not been upheld, with the exception of one element.

Complaint by Maxwell Hodge Solicitors on behalf of Mr Joseph Tulip
Old Dogs, New Tricks, BBC1, 24 August 2006

Summary: Ofcom has upheld Mr Tulip’s complaint of unfair treatment. Ofcom has not upheld Mr Tulip’s complaint of unwarranted infringement of privacy in the programme as broadcast.

This edition of Old Dogs, New Tricks investigated a home security company called European Environmental Controls Ltd (“ EEC ”), which it alleged sold “overpriced” products to vulnerable people. The programme referred to EEC ’s use of a Home Security Survey (“the survey”) and alleged the survey was not a genuine security survey but rather was used by the company in order to gain access to potential customers and their homes. Ofcom also noted that the programme referred to and criticised the designer of the survey, who it was explained was an ex-police officer with 28 years experience. Footage of the survey (which included the designer’s name and image) was briefly shown in the programme.

Mr Tulip, the designer of the survey, complained that the programme as broadcast was unfair to him and unwarrantably infringed his privacy.

Ofcom found as follows:

a) In Ofcom’s opinion, it was incumbent on the programme makers to offer Mr Tulip (who was the subject of direct criticism and visually identified) a specific opportunity to respond to the programme. In the absence of such an offer being made, Ofcom found that the Mr Tulip was not offered an appropriate opportunity to respond, and this resulted in unfairness to him in the programme as broadcast. Ofcom has upheld this part of Mr Tulip’s complaint.

b) It is Ofcom’s view that Mr Tulip did not have a legitimate expectation of privacy in respect of the information included about him in the programme. In the circumstances Ofcom found that the programme as broadcast did not infringe Mr Tulip’s privacy. Ofcom has not upheld this part of Mr Tulip’s complaint.

Introduction

On 24 August 2006 , BBC 1 broadcast an edition of Old Dogs, New Tricks that investigated a home security company called European Environmental Controls Ltd (“ EEC ”).

The programme explained that the owner of EEC , Mr John Ball, was the former owner of a company called Fireguard UK , which had previously been investigated by the consumer programme, Watchdog. The programme stated that Watchdog had previously exposed Fireguard UK as “pressure selling” overpriced and unsuitable fire safety equipment to elderly people. The programme questioned whether “John Ball’s sales team is using the same selling tactics his last company did 15 years ago” and “Is John Ball at it again?”

As part of the programme’s investigation, an EEC employee was surreptitiously recorded carrying out a free in-home security survey, for an elderly prospective customer (played by an actress). After the EEC home visit, the customer was provided with a completed survey report which EEC claimed had been designed and endorsed by a former police officer. The survey report was shown in the programme and criticised by Mr Alan McInnes of the Association of Chief Police Officers (“ACPO”). Mr McInnes stated that:

“I have seen this before and I would say that the flow of this is not actually a crime prevention survey. To me this is an information gathering and softening up process, to lead people into purchasing security devices”.

Towards the end of the programme, the presenters ‘doorstepped’ the business premises of EEC and were granted an interview with Mr Ball. During the broadcast interview the presenters accused Mr Ball of inventing a phoney home security survey in order to sell elderly people overpriced security products. Mr Ball stated that the survey had been designed by a police officer with 28 years experience, to which one of the presenters responded “Well he should be ashamed of himself”.

Mr Tulip is an employee of EEC and was referred to in the programme (albeit not by name) as the former police officer who designed the home security survey. In addition, the programme included footage of the survey report upon which a still photograph of Mr Tulip and his name was visible.

Maxwell Hodge Solicitors (“Maxwell Hodge”) complained on behalf of Mr Tulip that he was treated unfairly and that his privacy was unwarrantably infringed in the programme as broadcast.

The Complaint

Mr Tulip’s case

Maxwell Hodge said that the programme showed an EEC survey report upon which a photograph of Mr Tulip and his name was visible. In addition, one of the programme presenters stated that Mr Tulip should be “ashamed of himself” for working for EEC and putting together the survey booklet and training its staff. Maxwell Hodge said that simply because an individual is employed by an organisation which is itself the subject matter of criticism does not justifiably lead to imputations of the nature made in the programme.

a) Maxwell Hodge complained that Mr Tulip was treated unfairly in the programme as broadcast because the programme criticism, for a police officer with an unblemished service record, was unwarranted and not justified by a legitimate public interest.

b) In addition, Maxwell Hodge complained that Mr Tulip’s privacy was unwarrantably infringed in the programme as broadcast because as an employee of EEC , rather than an officer of the company, Mr Tulip should be able to expect that his privacy would be respected.

The BBC ’s case

In summary the BBC responded to the complaint as follows:

a) The BBC said that in so far as the programme’s criticisms of EEC ’s survey report might be taken as criticism of Mr Tulip this was entirely justified.

In support of this, the BBC referred to the contribution to the programme by Mr McInnes of the Association of Chief Police Officers, who it said was an undoubted expert in the field. The BBC provided Ofcom with an unedited transcript of Mr McInnes’ interview and noted that Mr McInnes criticised: the use of the survey as a pretext for gaining entry to the customer’s home, the relevance of the information gathered by the survey; and, Mr Tulip’s use of ‘credentials’ such as his membership to the National Association of Retired Police Officers, which Mr McInnes said was the “police equivalent of Friends Reunited” for retired police officers.

The BBC said that based on Mr McInnes’ professional opinion, it was entirely justified for the programme’s presenter to suggest that Mr Tulip “should be ashamed of himself”.

The BBC also stated that the presenter’s description of the survey as “only designed to make people frightened, make people nervous and to persuade them to buy your product” was part of a question put during the interview with Mr Ball, the owner of EEC . The BBC said the comment was no more than a typically pointed question that Mr Ball was invited to rebut if he could.

The BBC said the content of the programme in relation to the survey was both well-founded and fair.

b) The BBC acknowledged that the survey, which contained Mr Tulip’s photograph and CV, was briefly shown at various points in the programme. However, it said that Mr Tulip was “not named in the programme, and the only indication of his identity was in brief shots of the survey”. The BBC said it was unlikely that anyone could have recognised Mr Tulip from the material shown in the programme.

The BBC said that Mr Tulip had been paid by EEC to use his name, photograph and employment history as part of their business promotion efforts. Therefore Mr Tulip had put his name and image into the public domain in connection with EEC . The BBC contended that the programme did not reveal inherently private or particularly sensitive information about the complainant.

The BBC said that if Ofcom considered the programme did infringe Mr Tulip’s privacy, then it would have been warranted by Mr Tulip’s association with a survey that had been strongly criticised by a competent professional.

Decision

Mr Tulip’s complaint was considered by Ofcom’s Executive Fairness Group. In reaching a decision about this complaint Ofcom considered the parties’ written submissions, a recording and transcript of the programme, and Mr McInnes’ unedited programme interview.

Ofcom’s findings in relation to Mr Tulip’s specific heads of complaint are outlined below:

a) Ofcom first considered Maxwell Hodge’s complaint that it was unfair for the programme presenter to state that Mr Tulip should be “ashamed of himself” for working for EEC and putting together the survey booklet and training its staff. Maxwell Hodge said that the criticism was unwarranted and not justified by a legitimate public interest. Ofcom also took into consideration Maxwell Hodge’s comment that simply because an individual is employed by an organisation which is itself the subject matter of criticism does not justifiably lead to imputations of the nature made in the programme.

In reaching a decision, Ofcom first sought to determine whether or not Mr Tulip had been the subject of criticism in the programme as complained of above.

Ofcom noted that the programme as broadcast alleged that the EEC survey was not a genuine security survey and was used by the company in order to gain access to potential customers and their homes. Ofcom also noted that the programme referred to and criticised the designer of the survey, who it was explained was an ex-police officer with 28 years experience:

Commentary: “Esther has EEC ’s completed home survey…it says it’s been designed and endorsed by a former police officer [brief footage of the cover of the survey containing a picture of Mr Tulip and his name]. She takes it to the Chief Police Officers to see what they make of it”.

ACPO: “I have seen this before and I would say that the flow of this is not actually a crime prevention survey. To me this is information gathering and softening up process, to lead people into purchasing security devices”.

Presenter: “In other words it’s designed to sell burglar alarms”.

The survey designer was also referred to during an interview with the owner of EEC , Mr Ball:

Presenter: “This is not a real survey, this is bogus, to get you into people’s home”.

Mr Ball: “This is a survey put together by a police officer with 20 years or 28 years experience”.

Presenter: “Right, he should be ashamed of himself”.

As noted above, although Mr Tulip was not named orally in the programme, a copy of the survey containing Mr Tulip’s photo and name was briefly shown on screen. While Ofcom accepted that the brief image of the survey was unlikely to identify him to a large number of viewers, it is Ofcom’s view that footage of the survey was sufficient to make Mr Tulip identifiable to those who knew him. As such, the criticism directed at the designer of the survey could be connected to Mr Tulip.

Ofcom considered that the programme’s criticism of the survey had been directed at both EEC and Mr Tulip and in its view such an examination was legitimate and in the public interest. Ofcom also considered that the criticism amounted to a significant allegation of wrongdoing by both EEC and Mr Tulip. As such, Ofcom considered that both were entitled to an opportunity to respond to the allegation (this is in line with Practice 7.9 of the Code which states that if a programme alleges wrongdoing or incompetence or makes other significant allegations, those concerned should normally be given an appropriate and timely opportunity to respond).

Ofcom noted that prior to broadcast the programme’s allegations were put to EEC in a letter from the programme makers dated 26 June 2006 as well as during an interview with Mr Ball. The letter of 26 June 2006 stated:

“We have also spoken to Alan McInnes, of the Crime Prevention Initiative at the Association of Chief Police Officers. He has examined the EEC Home Security Survey and concluded that… it is in fact designed to sell burglar alarms and nothing else…In the opinion of the Association of Chief Police Officers, the survey provides little information to the consumer. Rather it collects information from the consumer in order to determine the specification of the burglar alarm EEC intends to sell.

Mr McInnes also expressed his surprise and is disappointment that an ex-police officer is involved with the EEC Home Security Survey”.

EEC responded to this point on 6 July 2007 :

“Your assertions…are incorrect. Our survey/risk assessment for the home, and 39 page training booklet were devised by an ex-police officer with 28 years service in the police force, Mr Joseph Tulip. This procedure was introduced into our business in October 2004 and Mr Tulip is still responsible for training on property surveying for the purposes for our advisors are invited [sic], which our staff are trained on over an ongoing period…”

Ofcom noted, however, that the programme makers did not approach Mr Tulip directly in order to offer him an opportunity to respond. From the information presented to Ofcom, it appeared that only EEC had been advised that the programme would include criticism of Mr Tulip. In Ofcom’s opinion, although Mr Tulip worked in some capacity for EEC , it was incumbent on the programme makers to offer Mr Tulip (who was the subject of direct criticism and had been visually identified) a specific opportunity to respond to programme. In the absence of such an offer being made, Ofcom found that the Mr Tulip was not offered an appropriate opportunity to respond to the programme allegations.

Ofcom next assessed whether the programme makers’ failure to offer Mr Tulip an opportunity to respond resulted in unfairness to Mr Tulip in the programme as broadcast. Ofcom noted that the programme included the following comments by Mr Ball in defence of his decision to use the survey “This is a survey put together by a police officer with 20 years or 28 years experience…”. In response to these comments, the presenters stated that the designer of the survey “should be ashamed of himself”. In Ofcom’s view, Mr Ball’s comments about Mr Tulip’s credentials were only EEC ’s response to the company’s decision to use the survey: they did not offer any response on behalf of Mr Tulip as to why he, as an ex-police officer, had designed the survey. In the circumstances Ofcom found that by not offering Mr Tulip an appropriate opportunity to respond to the allegations to be made against him, the programme as broadcast resulted in unfairness to him.

Accordingly Ofcom has upheld this part of Mr Tulip’s complaint.

b) Ofcom then turned to Maxwell Hodge’s complaint that Mr Tulip’s privacy was unwarrantably infringed in the programme as broadcast because, as an employee of EEC rather than an officer of the company, he should be able to expect that his privacy would be respected.

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 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). In reaching a decision about whether the programme as broadcast infringed Mr Tulip’s privacy, Ofcom sought to determine whether, in the circumstances of the complaint, Mr Tulip had a legitimate expectation of privacy.

Ofcom had regard for the nature of the information revealed. As noted above, the programme as broadcast included brief footage of Mr Tulip’s name and image, as it appears on the EEC Home Security Survey, and he was referred to as the survey’s designer.

Ofcom noted that Mr Tulip had willingly lent his name, image and credentials to EEC , for inclusion in the survey, which would be used by EEC in its dealings with the public. Taking these factors into consideration, it is Ofcom’s view that Mr Tulip did not have a legitimate expectation of privacy in respect of the information included about him in the programme in the context of his work for EEC . Therefore Ofcom found that there was no infringement of his privacy in the programme as broadcast. In the circumstances it was not necessary for Ofcom to go on to consider whether or not any infringement was warranted. Ofcom has not upheld this part of Mr Tulip’s complaint.

Ofcom has upheld Mr Tulip’s complaint unfair treatment. However, Mr Tulip’s complaint of unwarranted infringement of privacy in the programme as broadcast has not been upheld. The BBC was therefore found to be in breach of Rule 7.1.

Complaint by Maxwell Hodge Solicitors on behalf of Mr John Ball
Old Dogs, New Tricks, BBC1, 24 August 2006

Summary: Ofcom has not upheld Mr John Ball’s complaint of unwarranted infringement of privacy in the making and broadcast of the programme.

During an interview with Mr Ball the programme makers focused on his wrist-watch. The programme later revealed that a watch like Mr Ball’s would cost £12,600. The programme also included footage of the exterior of Mr Ball’s home and business premises.

Ofcom found as follows:

a) It is Ofcom’s view that Mr Ball had no legitimate expectation of privacy in relation to either the image of his watch or its value. Further, Ofcom was satisfied that the programme makers’ actions in gaining information about Mr Ball’s watch did not infringe upon Mr Ball’s person nor materially restrict his private life. Ofcom has not upheld Mr Ball’s complaint in this respect.

b) Mr Ball’s home

Ofcom considered that Mr Ball did have a legitimate expectation in relation to the location of his home. However, Ofcom found that neither the making of the programme nor its broadcast infringed Mr Ball’s privacy as there was no evidence to suggest that the programme makers had encroached on Mr Ball’s property when filming the exterior his home and the broadcast did not disclose the location of his home. Ofcom has not upheld this part of Mr Ball’s complaint.

Mr Ball’s work premises

Ofcom considered that Mr Ball did not have a legitimate expectation in relation to the exterior of his business premises as this information was already in the public domain and was currently being used by Mr Ball to promote his company on its website. Furthermore no evidence was presented to Ofcom to suggest that the filming of the exterior of Mr Ball’s business premises restricted or impacted on his private life. In addition, Ofcom found no infringement of Mr Ball’s privacy in either the making or broadcast of the programme. Accordingly Ofcom has not upheld this part of

Broadcast Bulletin Issue number 93 - 24|09|07

Standards Cases

In Breach

House of Fun 7/8 May 2007, around midnight

FHM Teeny Bikinis - Junior Jack, Stupidisco QTV, 3 June 2007, 12:00

Allstars Day - N.E.R.D, Lapdance Kiss TV, 16 June 2007, 16:30

Midsomer Murders ITV1, 7 February 2007, 16:00 (repeated 30 May, 16:00) and 29 May, 16:00

My God, I’m My Dad Ftn, 2 June 2007, 20:00

Not in Breach

Diana: The Witnesses in the Tunnel Channel 4, 6 June 2007, 21:00

Fairness and Privacy Cases

Upheld in part

Complaint by Maxwell Hodge solicitors on behalf of European Environmental Controls Ltd Old Dogs New Tricks, BBC1, 24 August 2006

Complaint by Maxwell Hodge Solicitors on behalf of Mr Joseph Tulip Old Dogs, New Tricks, BBC1, 24 August 2006

Complaint by Maxwell Hodge Solicitors on behalf of Mr John Ball Old Dogs, New Tricks, BBC1, 24 August 2006

House of Fun
7/8 May 2007, around midnight

FHM Teeny Bikinis - Junior Jack, Stupidisco
QTV, 3 June 2007, 12:00

Allstars Day - N.E.R.D, Lapdance
Kiss TV, 16 June 2007, 16:30

Midsomer Murders
ITV1, 7 February 2007, 16:00 (repeated 30 May, 16:00) and 29 May, 16:00

My God, I’m My Dad
Ftn, 2 June 2007, 20:00

Diana: The Witnesses in the Tunnel
Channel 4, 6 June 2007, 21:00

Complaint by Maxwell Hodge solicitors on behalf of European Environmental Controls Ltd
Old Dogs New Tricks, BBC1, 24 August 2006

Complaint by Maxwell Hodge Solicitors on behalf of Mr Joseph Tulip
Old Dogs, New Tricks, BBC1, 24 August 2006

Complaint by Maxwell Hodge Solicitors on behalf of Mr John Ball
Old Dogs, New Tricks, BBC1, 24 August 2006