Ofcom Watch

Ofcom has appointed its former Consumer Panel chair Colette Bowe as its new chairman.

Bowe will take over from David Currie in the £200,000 three-day-a-week role in the new year for a five year term.

Her career has included stints at the Department of Trade and Industry, the Independent Broadcasting Authority and the Personal Investment Authority. Bowe chaired Ofcom's Consumer Panel from its inception in 2003 to December 2007.

Donald Macleod
96.3 Rock Radio, 26 September 2008, 19:40

96.3 Rock Radio is a classic rock commercial radio station, operated by GMG Radio. It is broadcast in Glasgow, Renfrewshire and on DAB Digital Radio in Edinburgh. Donald Macleod, a Scottish music industry entrepreneur and newspaper columnist, presents a show on weekdays from 18:00 to 22:00 .

During the broadcast in question, the presenter said the following when introducing the song Black Hole Sun by Soundgarden:

Barack Obama's favourite song. Your Mum's got a big black hole, son.

A listener contacted Ofcom to complain, stating that this comment was racist.

Ofcom considered Rule 2.3 (“in applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context”).

Ofcom Decision Breach of Rule 2.3

Ofcom noted the broadcaster's response that, although completely ill advised and regrettable, the comment was not intended by the presenter to cause offence. Ofcom also noted the apologies made by the presenter.

Ofcom does not assess whether behaviour or language is racist; this is a matter for relevant authorities. However, Ofcom does require that generally accepted standards are applied in radio programmes. It is concerned that this comment, which clearly is potentially offensive on the grounds of race, had been included in a broadcast without due consideration for the way it may have been interpreted by listeners and without any apology within the programme itself. Ofcom concluded that the comment was not justified by the context and breached generally accepted standards. It was therefore in breach of Rule 2.3.

[Ofcom do not assess racist comments...BUT...they do assess potential racist comments and punish accordingly. This logic came up for the IWF this week too, they cannot assess child porn ..BUT.. censor potential child porn images anyway.

What's up with a country where even censors cannot determine whether things are illegal or not so punish things that are potentially illegal].

Harry and Paul
BBC1, 26 September 2008, 21:00

Ofcom received 42 complaints regarding a sketch in the Harry and Paul show which depicted a so-called upper class character, played by Harry Enfield, encouraging a Northern man - whom he treats as his dog - to mate with his neighbour's Filipina maid. The scene showed the Northerner , known as Clive, failing to show interest in the maid and the Harry Enfield character shouting encouragement and urging Clive to mount her before sending the maid back to the neighbour's home.

The complainants expressed concern that the sketch was offensive to the Filipino community and women in general, by presenting the Filipina as an object of sexual gratification.

Ofcom Decision

Ofcom recognises the sensitivities involved when comedy makes reference to or represents any particular ethnic community in the United Kingdom . In this case it was a Filipino who featured in the broadcast. We therefore considered this material in the light of Rule 2.3 (generally accepted standards) which says that …broadcasters must ensure that material which may cause offence is justified by the context…

This particular sketch was one of a number which ran throughout the series in which Harry Enfield plays an extreme comedy stereotype of an upper class toff living in the South of England. This caricature has little sensitivity to those outside of his social class. Consequently, he treats Clive like his dog. It is in this context that the sketch showed the Harry Enfield character encouraging Clive to mate with his neighbour's domestic help, for whom he also has little or no respect.

Whilst Harry and Paul is a new series, Harry Enfield and Paul Whitehouse are long established comedians whose style of humour often focuses on presenting characters in an exaggerated and stereotyped way for comic effect. The comedy frequently comes from the absurdity of the situation.

In terms of the degree of offence and the likely expectation of the audience, we considered whether the material was justified by the context of the sketch as a whole.

As noted above, this item featured established comedians and the sketch was typical of the material presented by Harry Enfield and Paul Whitehouse in this, and other series. Therefore it is Ofcom's view that the material would not have exceeded the likely expectation of the vast majority of the audience.

Further, in Ofcom's view, there was no intention to ridicule women or the Filipino community in this sketch. The target of the humour was very clearly the upper class character played by Harry Enfield who holds such a deluded view of his social superiority that he treats individuals with lower social status with ridiculous disdain. The Filipina domestic help was featured as a character in the sketch to highlight this extreme and ridiculous behaviour.

Comedy often, and rightly, engages with challenging and sensitive subjects such as social class. In this respect Ofcom must regulate potentially offensive material in a manner that also respects freedom of expression – the broadcasters' right to transmit information and the viewers' right to receive it. Ofcom must therefore seek an appropriate balance between protecting members of the public from harm and offence on the one hand and the broadcaster's right to freedom of expression on the other, taking into account such matters as context.

Although this sketch may have caused offence to some individuals, it explored the issue of social class in an absurd way which was not intended to reflect real life. In our view this was the approach and effect of this sketch. On balance, it is Ofcom's view that the material did not breach generally accepted standards because it was justified by the context.

Not in Breach

Top Gear
BBC Two, 2 November 2008, 20:00

Top Gear is a car-focused magazine programme primarily aimed at car enthusiasts. In this edition, the three presenters were given the challenge of customising second-hand lorries and performing certain tasks to experience being an HGV driver.

In one sequence, while discussing the upcoming lorry challenge Jeremy Clarkson said to the other presenters: What matters to lorry drivers? Murdering prostitutes? Fuel economy?

A few minutes later, whilst driving a lorry, Jeremy Clarkson said: This is a hard job [driving a lorry] and I'm not just saying this to win favour with lorry drivers: change gear; change gear; change gear; check your mirrors; murder a prostitute…

Ofcom received 339 complaints about comments made by Jeremy Clarkson concerning lorry drivers.

Ofcom considered these complaints under Rule 2.3 (material that may cause offence must be justified by the context).

Ofcom Decision

Top Gear is a long-running entertainment programme and viewers, in general, have come to expect a certain level of outspoken, adult-oriented humour from the presenters.

Taste in comedy can vary widely between people and Ofcom recognised that the comments made by Jeremy Clarkson could be offensive to some people. Ofcom is not an arbiter of good taste but rather it must judge whether a broadcaster has applied generally accepted standards by ensuring that members of the public were given adequate protection from offensive material.

On this occasion, Ofcom accepts that the comments made by Jeremy Clarkson could shock some viewers. However, Ofcom did not believe the intention of the comments could be seen to imply that all lorry drivers murder prostitutes, nor would it be reasonable to make such an inference. In Ofcom's view, the presenter was clearly using exaggeration to make a joke, albeit not to everyone's taste. The comments should therefore been seen in that context.

It is often the case that humour can cause offence. To restrict humour only to material which does not cause offence would be an unnecessary restriction of freedom of expression. Ofcom considered that the large majority of the audience would have understood the comments as being made for comic effect, and were in keeping with what would normally be expected from this presenter in this particular programme.

Given the intent of the comment, the context of the programme and the time of broadcast, Ofcom concluded that the broadcast of this material was justified by the context. Therefore, the programme was not in breach of Rule 2.3.

Not in Breach

Nemone
BBC 6 Music, 12 September 2008, 13:00

Nemone is a daily magazine programme hosted by the DJ Nemone Metaxas. This edition featured an interview with American comedian Doug Stanhope. During the interview, Stanhope commented that the Republican vice-presidential candidate, Sarah Palin, was a suitable target for his satirical style of humour.

The interview included the following:

Doug Stanhope: [Ms Palin] is a 44 year-old mother of five, two of which are retarded.

Nemone Metaxus: These are your, [laughs] obviously, your views…

Doug Stanhope: One's got Down's Syndrome and the other volunteered for Iraq . So that's two retards out of five.... Oh nothing. They give me nothing, nothing but blank looks.

Nemone Metaxus: Doug this is your opinion, your opinion of what's happening back home, so obviously, if something kicks off in America …

Doug Stanhope: For Pete's sake, don't stare at me like that. The woman has a baby with Down's Syndrome; how can America get behind her when even God obviously hates her. [laughs]

Ofcom received a complaint from a listener who was offended by Stanhope's use of the word retarded to describe someone with Down's Syndrome. The complainant was also concerned that the presenter did not seriously challenge these remarks or apologise to listeners.

Ofcom considered Rule 2.3 of the Code which requires material that may cause offence to be justified by the context.

Ofcom Decision

Ofcom notes that the comedian made references to individuals as retarded . Research indicates that views on this term are split. It is considered by some to be highly offensive, while others are less concerned by its use.

Ofcom acknowledges that BBC 6 Music attracts a predominantly adult audience and that regular listeners who are familiar with the irreverent style of its presenters and guests may not necessarily find the use of words such as retard offensive.

When dealing with generally accepted standards, the Code refers specifically to offence that may be caused by discriminatory treatment and language based on disability. In this case, the word retarded was used in a particularly derogatory manner. Further, references to Down's Syndrome were also made in a clearly offensive way. First, a child with Down's Syndrome was described as retarded. Second, there was a highly offensive comment which described Down's Syndrome as a form of punishment by God. Both of these, in Ofcom's opinion, went well beyond generally accepted standards and the audience's expectations for this programme. In this case in was clear that the context did not justify these offensive comments.

Ofcom was also concerned that during the broadcast the presenter did not give what it considered to be a sufficient reprimand or apology, which could have served to reduce the offence.

Ofcom concludes that this programme was in breach of Rule 2.3 of the Code.

Ofcom are launching a consultation into their draft Annual Plan, which outlines the proposed work programme for the next financial year starting in April 2009.

As part of that process they're holding a series of public meetings across the UK in January.

These meetings - in Cardiff, London, Glasgow, Caernarfon and Belfast - will provide an opportunity to discuss Ofcom's approach to television, radio, telecoms and wireless communications services.
Ofcom experts

Each meeting will begin with a brief presentation, after which there will be an opportunity to comment and ask questions.

All meetings will include a panel of Ofcom experts and subjects for discussion may include the future of public service broadcasting and super-fast broadband.

Although it is free to attend each meeting, it is essential that you pre-register.

Ofcom has set out four key themes for our work in 2009/10 which are:

• Driving forward a market-based approach to spectrum
• Promoting competition and innovation in converging markets
• Delivering public interest objectives as platforms and services converge
• Empowering citizens and consumers and improving regulatory compliance.

The consultation closes on 12 February 2009 with a final Annual Plan to be published in March.

After You've Gone
BBC1, 28 July 2008, 19:30

After You've Gone is a comedy series featuring the character Jimmy, whose mother-in-law has moved in with the family after his divorce.

In this episode Jimmy has a painful hernia and is unable to move off the sofa. In the scene in question, Jimmy craves a sweet biscuit but his mother-in-law, Diana, leaves him with a healthier rice cake to eat and his prescription painkillers in a bottle. She advises him to take two tablets every four hours. After Diana has left the house Jimmy looks at the tablet bottle and says these are bound to have some sugar in them and proceeds to shake out a handful of tablets and swallow them. He then swallows another handful.

In the next scene, Jimmy wakes disorientated and under the influence of the overdose of tablets. In his drug-induced state, he is shown to be in a mellow and relaxed mood, demonstrating a comic softening of his more uptight attitude towards his children and Diana, before falling asleep contented on the sofa. He wakes later, believing he has experienced a dream and showing no adverse side effects of the overdose of drugs. Later in the programme his mother-in-law attributes his more relaxed behaviour as being the result of one too many happy pills.

A viewer expressed concern that the overdose of painkillers shown in this episode was unsafe, appeared to show no adverse health consequences and that this demonstrated irresponsibility on the broadcaster's behalf.

Ofcom considered Rule 1.10 (the abuse of drugs must generally be avoided before the watershed.)

Ofcom Decision

Rule 1.10 requires broadcasters to avoid generally the abuse of drugs, and in any case such abuse should not be condoned, encouraged or glamorised in programmes broadcast before the watershed, unless there is editorial justification. This Rule covers all drugs, not just recreational or illicit drugs.

In this episode it is made clear that the character Jimmy chooses to exceed the recommended dosage of prescription medication. In reality, any abuse of painkilling medication carries the risk of very serious and even fatal side effects. In the scene, however, Jimmy is shown to experience only a relaxing of his inhibitions. The hallucinatory side effects of the overdose and his subsequent behaviour are accompanied by canned audience laughter which serves to emphasise the intended comedy of the situation.

Ofcom notes the broadcaster's argument that Jimmy did not take the drugs for their intended medical effect, but because he thought they might have sugar in them and this behaviour was consistent with the well established ignorance and foolishness of Jimmy in this long-running series. Although Jimmy appeared to suffer no adverse effects through his overdose, we took into account that by the conclusion of the episode Jimmy was shown to be embarrassed by his behaviour under the influence of the medication.

Ofcom recognises this was a comedy and therefore the scene was intended for humorous effect. Humour often derives from exaggerating a situation to the point of absurdity, but it is Ofcom's view that where the content includes the abuse of drugs, particularly when the programme is broadcast at a time when younger children may be watching, broadcasters should exercise particular caution.

We welcome the BBC's recognition that given its content this programme was not appropriately scheduled for younger viewers and its assurances that it would not therefore broadcast this episode again before 20:30 . In light of this, Ofcom considers the matter resolved.

Scott Mills
Radio 1, 12 August 2008, 16:00

A listener complained about an item called Badly Bleeped TV - a regular feature in this radio programme, in which extracts from TV or radio are played with words bleeped out. The words themselves are later revealed as being not offensive. However, the remaining beginning and ending sounds of the words give the impression that the bleep is masking an offensive word, or create the beginning and end sound of an offensive word on either side of the bleep.

On this occasion, two of the clips included words that began with ‘f' and these were edited in such a way that the listener believed that he had heard the word 'fuck'.

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

The BBC responded that Badly Bleeped TV is one of the more popular items on Scott Mills and that it considered that the item is in line with the level of satire and humour that the programme's audience would expect from the show. It acknowledged that the feature is somewhat risqué . However it maintained that the words omitted from the extracts are entirely innocuous in nature, with the humour of the item resting in the listeners recognising in their minds a similarity between the remaining parts of the bleeped word and a potentially offensive word. It belongs to the saucy seaside postcard tradition of comedy, than to anything more offensive.

The BBC said that the words that were bleeped, as referred to by the complainant, were 'fated to meet' and 'fantastic'. The word 'fuck' was therefore not used and the words that were bleeped bore no resemblance to that word. It said the real missing words were revealed very quickly, leaving the listener in no doubt as to what was omitted.

Ofcom Decision

In respect of the complaint, Ofcom considered the two words that began with ‘f'.

As regards the first instance, Ofcom noted that while listeners had been led to believe the word fucked' was the missing word, the word 'fucked' was not clearly audible.

However in relation to the second word in the broadcast which began with an ‘f', Ofcom noted that the beginning and end sounds of the bleeped word were ‘f' at the beginning, and a strong ‘ck' after the bleep. This was played twice and clearly - for all intents and purposes - sounded like the word 'fuck'.

Rule 1.14 does not allow for editorial justification in the use of such language. In this instance, the programme was broadcast at 16:00 , during school holidays, and was therefore on air at a time when children were likely to be listening.

Ofcom found that, by broadcasting a word that had been purposefully edited to sound identical to the word 'fuck', the programme was in breach of Rule 1.14 of the Code.

TV censor Ofcom warned BBC bosses about lax editorial procedures on Russell Brand's BBC 6 Music show over a year ago, it emerged last night. In a ruling published 15 months ago, it criticised the corporation for failing to follow its own editorial procedures and allowing Brand to broadcast a quiz won by a member of his production team posing as a listener to the digital radio station.

As director-general Mark Thompson today says that the corporation will not overreact to the events of the past week, the revelation that Ofcom highlighted the failure of the BBC's programming rules in July last year will be seized on by critics as evidence that Brand's latest gaffe should have been avoided.

The repeat offence could mean that the BBC will be fined the maximum for its latest misdemeanour.

 

Vision for Israel
Revelation TV, 18 April 2008, 15:00

Revelation TV is a religious channel that often features discussion and personal view programmes which from time to time engage viewers with challenging debates on topical issues.

Ofcom received one complaint from a viewer who alleged that an edition of the programme Vision for Israel presented by theologian, teacher and author Dan Juster, made abusive and inappropriate comments regarding Islam. Ofcom noted that, during this hour-long programme which compared the Christian and Muslim faiths, Dan Juster stated [it was his belief that]: Islam cannot be defined as a peaceful, loving religion…Islam enforces its own viewpoint through the power of the sword through death… and Islam believes that violence is a legitimate means to establish and extend Islam.

Ofcom considered Rule 4.1 of the Code (Broadcasters must exercise the proper degree of responsibility with respect to the content of programmes which are religious programmes).

Ofcom Decision

In forming its decision, Ofcom bore in mind the fact that broadcasters have a right to freedom of expression which includes the broadcaster's right to transmit and the audience's right to receive creative material, information and ideas without interference ...BUT... subject to restrictions proscribed by law and necessary in a democratic society. This right is enshrined in the European Convention on Human Rights. Broadcasters should therefore always take care to ensure that material it transmits is in accordance with both the general law and the Code.

The comments made in this programme described above were said in the context of a specialised religious programme made for a particularly niche and predominantly Christian audience. Ofcom has always considered that it is possible for the follower of one religion to reject or critique other religions in the course of sermonising or proselytising and remain within the requirements for Rule 4.1. However, this Code Rule requires broadcasters to exercise the proper degree of responsibility when, for example, using hyperbole which may include more extreme views which could be deemed offensive to people in the audience who hold different views and beliefs.

In Ofcom's view it was a serious compliance error that Revelation TV did not review the content of this programme prior to transmission. As a consequence of this, the broadcaster was not able to put the potentially offensive comments into context. The broadcaster therefore did not exercise the proper degree of responsibility with respect to the content of this religious programme as required by Rule 4.1.

The programme was in breach of Rule 4.1 of the Code.

Breach of Rule 4.1

Bang Babes
Tease Me 2, 17 March 2008; 21:00–22:00

Bang Babes is free-to-air unencrypted programming available on the channels Tease Me and Tease Me 2. The channel broadcasts programmes based on interactive 'adult' chat services: viewers are invited to contact on-screen presenters 'babes' via premium rate telephony services. The female presenters dress and behave provocatively.

Ofcom received a complaint about the broadcast on Tease Me 2 on 17 March 2008. It alleged that the broadcast showed simulated masturbation and full screen images of bare breasts and nipple stimulation before 22:00.

Ofcom viewed the material. It noted that the broadcast on Tease Me 2 on 17 March from 21:43 showed prolonged close-ups and full screen images of the presenter's breasts and nipples, which were continuously massaged and stimulated and thrust into the camera. In addition, the presenter was shown lying on her back with her legs apart rubbing and touching her genital area outside of her underwear in a sexual manner before 22:00. There was also a brief sequence where the presenter placed her hands inside her underwear. These sequences were all of a highly sexualised nature.

Ofcom considered:

• Rules 2.1 (generally accepted standards)
• 2.3 (material which may cause offence must be justified by context) of the Code.

Ofcom Decision

It is a requirement of the Code that content which is considered to be 'adult-sex' material must be PIN protected and encrypted (Rule 1.24). In this case, Ofcom carefully considered whether the content complained of was 'adult-sex' material. It concluded that in this case it clearly was not.

In terms of the complaint about simulated masturbation, Ofcom noted that the broadcaster had stressed that a presenter acted briefly outside its own internal procedures on 17 March 2008 and that, since then, staff had received further compliance training. Broadcasters must note, as Ofcom has made clear on a number of occasions, that it is unacceptable to show simulated or real masturbation in the context of free-to-air 'adult' chat television services.

As regards Rules 2.1 and 2.3 and the 17 March broadcast, Ofcom acknowledges that the images and language on Tease Me 2 were materially less explicit than in a number of examples of free-to-air 'adult' chat service content that it has previously investigated. Ofcom concern on this occasion focussed on the content and the time of broadcast.

The prolonged and close-up full-screen shots of the presenter stimulating and massaging her bare breasts, pinching her nipples and shaking them to camera, were in Ofcom's opinion highly sexualised and not suitable for broadcast before 22:00. The images of the presenter lying on her back with her legs open, briefly simulating masturbation, and stroking her semi-naked body were also not acceptable before 22:00. All these images in Ofcom's view were sexually provocative and of a physically intrusive nature so as to be offensive, and in breach of generally accepted standards on a free-to-air channel in the adult section of the EPG shown before 22:00.

Breach of Rules 2.1 and 2.3

Revenant
Zone Horror, 2 August 2008, 16:00

Zone Horror is a channel which broadcasts free-to-air and specialises in horror films and supernatural series. Revenant is an adult vampire comedy set in modern day Los Angeles. It is rated as “18” by the BBFC.

Ofcom received five complaints about the adult nature of this film which was broadcast on a Saturday and Sunday lunchtime. In particular, viewers expressed concerns about graphic vampire imagery, sexual scenes, drug use, and the use of the most offensive language (“fuck” and its derivatives).

Ofcom considered Rule 1.21 (BBFC 18-rated films must not be broadcast before 21:00 on any service except pay per view) of the Code.

Zone Horror said it was extremely embarrassed the film was broadcast and apologised to viewers. It acknowledged the film was not compliant with the Code. The broadcaster said Revenant had been restricted to a post-watershed timeslot but Zone Horror also wanted an edited version which could be shown at any time and asked its editing team for this to be created. In anticipation of this being feasible, the film was scheduled for an afternoon transmission. However, after it became clear to the channel that the film could not be edited to make the content suitable for a daytime slot, Revenant was not removed from the schedule and was broadcast uncut. Since this incident occurred, Zone Horror said it has introduced more robust compliance procedures.

Ofcom Decision Breach of Rule 1.21

As an unedited 18-rated film, the content of Revenant was wholly unsuitable for broadcast in the afternoon.

We acknowledge and welcome the steps introduced by Zone Horror to improve compliance. However, Ofcom was particularly concerned that after the original broadcast, the film was repeated on the next day. This was a serious breach of the Code, all the more unacceptable because the broadcaster was informed before broadcast that the programme could not be edited to make it comply with the Code.

Always Crashing in the Same Car

Turner Classic Movies is a niche film channel that shows classic films and dramas aimed at an older adult audience. Always Crashing in the Same Car is a 10 minute film that received second prize in TCM 's 2007 Classic Shorts film competition.

One viewer was concerned that the film contained the following strong language: “fuck”, “fucked” and “shit”. The viewer was concerned that such language should appear before the watershed, when young and pre-school children might have been in the audience. On reviewing a recording of the material provided by TCM, Ofcom noted that the film contained over 20 separate examples of strong language, and that as well as the above, there were several uses of “cunt” and ”cunting”.

TCM said that the scheduling of the film before the watershed was a human error by a freelance scheduler. TCM added that, since this error had occurred, the channel had changed its internal scheduling procedures to make sure all schedules, completed by a person covering for a permanent scheduler, are checked and approved prior to transmission.

Ofcom recorded this as a Breach of Rules 1.14 and 2.3

Outgoing Ofcom chairman David Currie has said that his successor should expect the communications censor to have an expanded remit with responsibility for stricter control over internet content.

Currie, making what will be his final annual lecture for Ofcom before leaving at Easter next year, said there was an appetite among legislators for putting a tighter rein on the net now the medium had moved beyond its formative stages.

Echoing comments last month by culture secretary Andy Burnham, who argued that it was time for a different approach to tightening up taste and decency online, Currie said Ofcom was likely to find its remit expanded, following his departure, to encompass digital media.

Ask most legislators today, and, where they think about it, they will say that period [of forbearance] is coming to an end. To say this is not Ofcom going looking for trouble ... but a marker for my successor that Ofcom is likely to find its remit being stretched, he added.

Currie made it clear that any scenario that saw an expanded Ofcom remit would not simply import old broadcasting-style regulation to the internet.

The TV censor, Ofcom has re-published its Broadcasting Code to include amendments and changes that have been made since its original publication.

 

SportxxxBabes, 19 and 20 November 2007, 22:00

SportxxxBabes is listed in the adult section of the Sky electronic programme guide (“EPG”). It broadcasts programmes based on interactive adult chat services: viewers are invited to contact on-screen presenters 'babes) via premium rate telephony services. The female presenters dress provocatively and encourage viewers to contact them.

Ofcom noted that the programming focussed extensively on the depictions of masturbation – the output showed the female presenter on each date engaged in this activity for the majority of the programme.

We considered the broadcast under the following Code Rules:

* Rule 1.24 ('adult-sex' material is restricted to overnight encrypted services);
* Rule 2.1 (the broadcaster must apply generally accepted standards); and
* Rule 2.3 (offensive material must be justified by context).

Ofcom Decision Breach of Rules 1.24, 2.1 and 2.3

We are extremely concerned by the broadcaster's failure to ensure the material it broadcast on the channel on 19 and 20 November 2007 complied with the Code. The seriousness of the breach was aggravated by the fact that it occurred just after Ofcom had published a number of Findings about similar content on 22 October 2007 in Broadcast Bulletin issue number 95. In one of these Findings, against LivexxxBabes (a channel also operated by the same company), Ofcom made clear that depictions of masturbation, simulated or otherwise, are not appropriate for unencrypted broadcast unless there is strong editorial justification.

In addition, the breach occurred at a time when the Licensee was under consideration of a statutory sanction for other breaches that had occurred on SportxxxBabes in February and March 2007. Ofcom considered referring the November 2007 breaches to the Content Sanctions Committee. However, in view of all the circumstances of this case - including the broadcaster's quick and frank admission of the breaches, the steps taken to rectify the problem and the subsequent improvements to the channel's content in terms of compliance with the Code - Ofcom finally decided not to do so.

However, should breaches of a similar nature occur on the channel in future, Ofcom will not hesitate to consider referring the matter to the Committee for consideration of a sanction, which could include the imposition of a financial penalty or revocation of the broadcaster's licence.

Guns N' Roses
Biography Channel, 11 August 2008, 12:20

A viewer complained about bad language during an interview with Guns N' Roses where the singer, Axl Rose, said I guess being a fucking psycho bastard nut case helps my career. The viewer believed it was not appropriate to broadcast this language at this time.

Ofcom considered Rule 1.14 of the Code (the most offensive language must not be broadcast before the watershed).

Ofcom Decision: Breach of Rule 1.14

The Code requires that broadcasters avoid broadcasting the most offensive language before the watershed. The word “fuck” and its derivatives are clear examples of such language.

While noting the broadcaster's admission of human error, Ofcom judged that the language was clear in this programme and that the broadcaster should have been more alert to the possibility of bad language when interviewing a member of a rock group.

This is the second occasion where material has been inappropriately scheduled (see Bulletin issue number 80). Ofcom has therefore recorded a breach of Rule 1.14 for transmitting the most offensive language before the 21:00 watershed.

Pre-school programming has undergone a boom in recent years thanks to series such as Teletubbies and In The Night Garden and dedicated channels such as the BBC's CBeebies.

However, amid rising concern that television is being used by some parents as a form of babysitter, the TV censor is carrying out a review into the potential for harm. A spokesman for Ofcom said it had been made aware of concerns regarding TV programming aimed at very young children. There are elements we are considering now.

In a report published in July, French researchers found that watching television undermined the development of children under three, encouraged passivity, delayed language acquisition, increased agitation, reduced concentration and increased the incidence of sleep disorders. The same month, the French broadcasting authority Conseil Superior Audiovisuel (CSA) banned TV channels from marketing shows aimed at toddlers and ruled cable programmes for the very young must now come with the stark warning: Watching television can slow the development of children under three, even when it is aimed specifically at them.

The CSA passed on the concerns to Ofcom, resulting in the current investigation.

But Claude Knights, director of the children's charity Kidscape, called for Ofcom to make parents aware of the dangers. He said: It is really sad when the TV is used as a babysitter or a means of controlling very young children. There may well be parents that don't realise the cumulative effects of exposure to TV. Ofcom should state the case and give the concerns about possible harm revealed in this research.

The controller of CBeebies, Michael Carrington, defended toddler TV. No-one can argue when they see a child's face light up watching In The Night Garden that such carefully-made programmes have done any harm. Our programmes are produced by experienced pre-school programme makers and we call on developmental and educational experts developing ideas. Guidance is also sought from the Early Learning Goals and School Curricula.

LivexxxBabes , 8 June 2008, 21:00–03:00

LivexxxBabes is free-to-air unencrypted programming in the adult section of the Sky electronic programme guide. The channel broadcasts programmes based on interactive 'adult' chat services: viewers are invited to contact on-screen presenters (“babes”) via premium rate telephony services. The female presenters dress and behave provocatively.

Ofcom received a complaint alleging that the broadcast amounted to 'adult-sex' material within the meaning of Code Rule 1.24 and therefore should have been transmitted in line with that rule's requirements, including encryption. In particular, after 22:00 there was constant nudity and a voiceover periodically referred to mutual tommy-tanking.

Ofcom viewed the material. It noted that between 21:00 and 22.00 the presenters were dressed in a relatively modest way. After 22:00 however the presenters bared their breasts and for the rest of the broadcast performed in an overtly sexual manner, including thrusting their backsides to camera so that on occasion their anal area was showing.

Ofcom considered rules:

• 2.1 generally accepted standards must be applied
• 2.3 offensive material must be justified by context

Ofcom Decision

It is a requirement of the Code that content which is considered to be 'adult-sex' material must be PIN protected and encrypted (Rule 1.24). In this case, Ofcom did not consider the content complained of to be 'adult-sex' material. This decision was reached taking all the relevant circumstances into account, including the sexual explicitness and nature of the images (including such factors as their length and editing) and language, the purpose of broadcasting this material and the overall context in which it was broadcast. In particular, although clearly material of a sexual nature, the programming did not include simulated or real genital stimulation and contact between presenters was avoided.

However, in this case the presenters were wearing thongs and while they thrust their bottoms towards the camera there were a few, brief occasions when their anal areas were shown in intrusive detail. The location of the channel in the 'adult' section of the EPG and late transmission were not sufficient to justify these aspects of the content. This, in Ofcom's opinion, was so revealing as to be offensive and in breach of generally accepted standards on a free-to-air channel in the adult section of the EPG. In order to remain compliant with the Code, broadcasters operating in the free-to-air 'adult' chat sector, should take great care when using extreme close-ups of the crotch and backside. These images can result in physically invasive shots which are not suitable for free to air transmission.

Breach of Rules 2.1 and 2.3

The Work of Mad Men
Red TV, 11 July 2008, 19:55 (repeated 12 July 2008, 11:30)

Red TV is a general entertainment channel focusing on factual programming. The Work of Mad Men is an entertainment series, featuring bizarre and amusing advertisements from around the world.

The episode complained of included an advertisement from Holland for an English language institute called 'Soesman Language Training'. The advertisement showed Dutch-speaking parents in a car with their children listening to a pop song in English. The lyrics of the song contain repeated use of the phrase I want to fuck you in the ass – which the children appeared to understand and giggle over but their parents failed to comprehend.

Ofcom received two complaints from a viewer who was concerned by this broadcast of offensive language before the watershed.

Ofcom considered:

• Rule 1.3 (children must be protected by appropriate scheduling from material that is unsuitable for them)
• Rule 1.14 (the most offensive language must not be broadcast before the watershed).

Ofcom Decision

The broadcast of the word “fuck” six times within the advertisement complained of, when children were likely to be viewing, was clearly unacceptable.

While Red TV broadcast an apology, and has given assurances of improved compliance, Ofcom is concerned that the compliance procedures in place were clearly insufficient when these items were broadcast. Broadcasters must have in place robust procedures and appropriate staff to ensure compliance with the Code.

The programme was therefore in breach of Rules 1.3 and 1.14.