Ofcom Watch

David Cameron did not breach regulations by saying twat and pissed off on Christian O'Connell's Absolute Radio show, Ofcom has ruled.

The Conservative leader apologised after as he explained to Absolute Radio presenter Christian O'Connell why he did not use the Twitter social networking service.

During the interview, Cameron was asked whether he used Twitter, and he replied: The trouble with Twitter, the instantness of it - too many twits might make a twat.

Shortly afterwards, the Tory leader was talking about the impact of the expenses scandal on Westminster's reputation and said: The public are rightly, I think, pissed off - sorry I can't say that in the morning - angry with politicians.

The incident prompted 20 complaints about offensive language to Ofcom, but the broadcasting watchdog said the show was not in breach of its rules.

An Ofcom spokesman said: In the context of the interview and the programme overall, the remarks did not breach the broadcasting code.

TXXX Channel AKA
‘Playtime Two', Giggs Featuring Kyze
Channel AKA, 25 June 2009, 22:45 approximately

Channel AKA is an urban music channel whose licence is held by Mushroom TV. The channel is available without any access restrictions. XXX Channel AKA is part of the channel's late night programming, broadcast between 22:00 and 05:30. The programme features music videos of a more adult nature containing stronger images.

A viewer complained about the broadcast of the music video Playtime Two by Giggs Featuring Kyze, which featured material of a sexual nature. The complainant considered the sexual material broadcast in this video too strong to be available at approximately 22:45 and on this channel.

Ofcom noted that the video included: frequent shots of naked breasts; women wearing revealing thongs and pulling at their underwear to expose genital detail; women touching their breasts and genital area in a sexual manner; women squirting water and licking whipped cream off each other's naked breasts; frequent shots between women's legs (while wearing thongs); frequent close up shots of female buttocks (while wearing thongs); a brief shot of a woman pulling her buttocks apart to show anal detail; and a man simulating sexual stimulation between a woman's legs.

Ofcom considered Rules 2.1 (generally accepted standards) and 2.3 (material which may cause offence must be justified by the context).

Ofcom Decision: Breach of rules 2.1 & 2.3

Ofcom was concerned by the strong sexual imagery included in the Playtime Two video and in particular the time of broadcast. This video contained frequent shots of naked breasts; women touching their breasts and genital area in a sexual manner; women licking whipped cream off each other's breasts; and a man simulating sexual stimulation on a woman. In Ofcom's view, given the strength of the material and the time of broadcast Ofcom did not consider that the broadcaster had applied generally accepted standards. In Ofcom's opinion, despite the title of the programme and the later evening scheduling, Ofcom considered that this particular material would have exceeded audience expectations for a music programme of this nature broadcast at 22:45 without any access restrictions on a music channel.

While taking into account the name of the programme and that it does include music videos of a more adult nature, it was Ofcom's view that, on balance, the broadcaster did not apply generally accepted standards to this content and the material was not justified by the context. Therefore the material breached Rules 2.1 and 2.3 of the Code.

Ofcom have published a consultation on the future regulation and cenorship of Video on Demand (VOD) services.

Under revised European law, content on VOD services such as BBC iPlayer, 4OD, ITV Player, SkyPlayer and Demand Five will be regulated from 19 December 2009. Such services are available through Virgin Media, Sky and BT Vision as well as through the internet.

Regulation of these services is a requirement of the EU's Audiovisual Media Services Directive and covers all VOD services which are, according to the Directive, TV-like. The Government plans to give the overall duty to regulate these services to Ofcom.

Electronic versions of newspapers, private websites and unmoderated user generated material (hosted on services such as YouTube) will not be regulated.

Industry Bodies ATVOD and ASA

Ofcom is consulting on its proposal that two bodies carry out most aspects of the regulation on its behalf: Ofcom proposes that VOD services are regulated by the industry body, the Association for Television On Demand (ATVOD), and that advertising included in those services, is regulated by the Advertising Standards Authority (ASA).

But VOD programming would not be subject to Ofcom's Broadcasting Code, which broadcast services currently licensed in the UK have to observe

Under the proposed co-regulation, Ofcom will have back-stop powers to intervene if the new co-regulatory system does not work effectively and Ofcom will also retain the power to impose sanctions against service providers.

Content Censorship

Under the proposals for consultation ATVOD would regulate VOD services and would be required to ensure that programming on VOD services adheres to a number of minimum standards from the Directive which will be set out in UK legislation. Programmes, for example:

• must not contain any incitement to hatred based on race, sex, religion or nationality
• must not provide material which might seriously impair the physical, mental, or moral development of minors unless it is made available in such a way that ensures that minors will not normally hear or see such content
• sponsored programmes and services must comply with applicable sponsorship requirements.

Advertising

Since 2004 the ASA has regulated TV and radio advertising in the UK under a co-regulatory agreement with Ofcom. Under the proposals for consultation the ASA would regulate the advertising on VOD services.

The new legislation requires that advertising on VOD services must also comply with a number of minimum standards. For example:

• advertising must be readily recognisable and cannot contain any surreptitious advertising or use subliminal advertising techniques
• advertising must not encourage behaviour that is prejudicial to the health or safety of people
• tobacco products, prescription-only medicines or medical treatments cannot be advertised.

Viewer complaints

Under Ofcom's proposals any complaints that viewers have about video material that they feel has breached these rules will be assessed by ATVOD or the ASA.

BBC

BBC content is jointly regulated by the BBC Trust and Ofcom.

Content on the BBC iPlayer will be subject to these new regulations but as with other BBC content will be regulated by the Trust and Ofcom and not under the proposed co-regulatory arrangements.

Consultation

Our consultation closes on 26th October 2009. See further details here

The Land Cries Out for the Blood that Was Shed
Revelation TV, 23 June 2009, 15:30

Revelation TV is a UK-based Christian channel that features a range of programmes with a religious theme. Ofcom received a complaint about The Land Cries Out for the Blood that was Shed , objecting to the programme's stance against abortion, and the showing of graphic images of aborted foetuses. The complainant was concerned that the programme had been broadcast in the afternoon and prior to a children's programme called R Kids .

The programme was a documentary film, which consisted of commentary and interviews setting out facts, figures and opinions about abortion. All the interviewees (drawn mainly from anti-abortion organisations in the UK, the US and Israel) put forward arguments and opinions against abortion, with the views expressed being predominantly delivered from a Christian and Jewish perspective. During the programme, a range of images were shown, which depicted, in photographic form, aborted foetuses or the process of abortion. In summary, the Images consisted of the following:

• Firstly, montages  of still photographs of late-stage aborted foetuses shown three times during the programme lasting in excess of thirty seconds in total
• second, a number of times, brief but discernable “flash frames” of photographs of late-stage aborted foetuses, shown intermittently throughout the programme.

The programme also touched on: the legal situation pertaining to abortion in the UK, the US and Israel; and the United Nations policy concerning abortion. In addition, a number of interviewees gave their perspectives on the legal situation surrounding abortion in the above countries, and how it was being dealt with at the UN.

Ofcom considered Rules of the Code:

• Rule 1.3: Children must be protected by appropriate scheduling
• Rule 2.1: Generally accepted standards must be applied to the contents of
  television programmes
• Rule 2.3: Offensive material must be justified by the context and appropriate
  information should also be broadcast
• Rule 5.5: On matters of political controversy or relating to current public policy
  due impartiality must be preserved.

Ofcom Decision: Breach of Rules 1.3, 2.1, 2.3 & 5.5

Ofcom had two broad areas of concern about the programme:

Firstly, Ofcom noted that collectively the Images consisted of depictions in photographic form of late-stage aborted foetuses. Ofcom therefore had to consider whether by broadcasting the Images, Revelation TV had failed to ensure that people under eighteen were protected, and generally accepted standards were maintained.

Second, given that the programme was touching on and discussing Governmental and international policy on abortion, Ofcom had to consider whether Section Five of the Code (concerning due impartiality) was engaged, and if so, whether due impartiality was maintained on a matter of political or industrial controversy or matter relating to current public policy.

Ofcom considered the Images collectively as being highly problematic, with real potential to cause harm and offence, including harm to any children watching.

Firstly, the Montages consisted of extremely graphic still photographs showing full images of different late stage aborted foetuses outside of the womb. These images included severed body parts including heads and limbs. Given the very explicit nature of these photographs, and the length of time they were visible to viewers, Ofcom considered the Montages had the greatest potential to cause harm and offence, including harm to any children watching. There were similar concerns about the graphic nature of the Flash Frames which included some of the same stills in the Montages.

This programme was broadcast well before the 9pm Watershed, and in fact, at a time when children would be arriving home from school. It also was broadcast only a short time before one of Revelation TV's programmes aimed at children (R Kids). Ofcom therefore considered that there was a material chance that some children might be in the audience for The Land Cries Out. Ofcom considered that the strength and highly graphic nature of the Images were totally unacceptable to be broadcast at a time when children might have been watching. The highly graphic nature of the Montages in particular, would have had, in Ofcom's opinion, the likely potential to have caused distress and upset amongst any child viewers exposed to such material. As a consequence, Ofcom considered the content to be in breach of Rule 1.3.

Ofcom considered that a combination of the Images, and in particular, the Montages, could not be justified by the context given the time of broadcast and the failure to provide adequate information about the nature of the programme, and were, therefore, in breach of Rules 2.1 and 2.3.

Outside of news programmes, under Section Five of the Code, broadcasters must ensure that they preserve “due impartiality” on matters relating to political or industrial controversy or matters relating to current public policy. Having reviewed the programme, Ofcom noted that The Land Cries Out contained no opinions or viewpoints that could be portrayed as being from a pro-abortion stance. Ofcom therefore considered the programme to be in breach of Rule 5.5.

Ofcom considered these breaches of the Code to be serious.

Independent producers commissioned by ITV will have their content vetted for compliance by the commercial broadcaster, following moves by Ofcom which beef up the fines the network faces for breaches of the broadcasting code.

In a statement, ITV said that the decision to adopt double compliance reflected a lack of confidence in the compliance procedures of its subsidiary Channel Television. Channel TV currently vets most of the network's indie-produced content..

Previously, only the ITV network that had authorized compliance was able to be fined by the watchdog for breaches of the code. It meant that Ofcom could only fine Channel TV up to £200,000 for a breach.

Under the changes, the whole of the ITV network can be liable to pay up to 92% of any content breaches, with the cost capped at 5% of the total network revenue - meaning fines could easily top millions of pounds for a breach.

As a result, ITV plc is now obliged to take steps to protect itself from exposure to sanctions arising from compliance processes in respect of which it currently has no control, and little visibility, the statement said.

A Channel 4 life drawing programme which featured naked female models was acceptable lunchtime viewing, the television censor, Ofcom, has ruled.

37 viewers complained about the content of Life Class: Today's Nude , which was broadcast daily at 12.30pm over a week in July.

It was adult viewing, not for screening in the middle of the day, one viewer said after tuning in to the programme, in which artists guided students through various drawing techniques.

However, Ofcom rejected the complaints and ruled that Channel 4 did not breach broadcasting guidelines. The watchdog has written to every complainant explaining that the nudity was justified.

Life drawing is a well-known and respected form of art. In Ofcom's view, although the images of nudity were broadcast for long periods of time, they were not presented in a sexualised manner and were clearly justified by the context, given the editorial purpose of the series, the letter read. The programme was broadcast during school term time and was not aimed at children, the watchdog said, adding that each episode was prefaced by a warning about its content.

Talkback
BBC Radio Ulster, 22 May 2009, 13:00

Talkback is a political and current-affairs phone-in programme broadcast daily after the midday news. This edition of Talkback featured a live interview with veteran Hollywood actor, Tony Curtis.

During the course of the interview Mr Curtis used the words “bastards”, “bullshit” and
“fuck”. After each, the presenter apologised to the audience, as follows:

Tony Curtis [speaking of journalists]: …some bastards go ahead and make them headlines.

Presenter: I guess I have to apologise for that Hollywood realism moment there.

Tony Curtis [speaking of being nominated for an Oscar]: Yeah but that was bullshit… I'm sorry.

Presenter: More Hollywood realism breaking through on Radio Ulster.

Tony Curtis: So I just got up and said ‘fuck off'.

Presenter: Oh no, now come on. We really, really can't use that kind of language.

Tony Curtis: You can't use that kind of language?

Presenter: We can't use that language, no, I apologise to our listeners.

Tony Curtis: Now listen, my dear friend, you can take that, er…Oh, it is live.

Presenter: Yeah, we're live, we're live on the radio.

Curtis: I apologise to everyone...I don't want to offend anyone. Everyone has the right to enjoy what life giveth.

Ofcom received two complaints from listeners who felt this language was offensive
and unsuitable for the time of transmission. Ofcom considered these complaints
under Rule 2.3 (material that may cause offence must be justified by the context).

Ofcom Decision: Breach of Rule 2.3

Ofcom noted that Talkback is a political and current affairs programme and therefore that children were not particularly likely to have been listening to this broadcast.

Notwithstanding this, Ofcom went on to consider whether the language used in the broadcast exceeded generally accepted standards and was justified by the context. Ofcom took into account the nature of the programme, the fact that it was a live broadcast, and also the apologies offered to listeners by both the presenter and Mr Curtis.

Ofcom considers that during live interviews it is important for the broadcaster to properly brief interviewees of the need to avoid offensive language (where appropriate) and also to be particularly vigilant during the broadcast itself for any potential breaches of the Code and where necessary take action to prevent them.

While Ofcom acknowledged that the apologies to listeners went some way in mitigating the potential offence of the language used, Ofcom considered that the language, in particular the use of the word “fuck” was likely to have gone beyond the expectations of the audience for a programme of this type and at this time.

The X Files
Virgin 1, 21 April 2009, 19:00

Virgin 1 is a general entertainment channel, which is available without access restrictions on all digital platforms.

The X Files is a drama series devoted to two FBI agents and their attempts to solve cases that appear to have some unexplained, paranormal element.

In this episode, a The Holvey family is apparently infiltrated by the spirit of their dead son. This particular episode of The X Files, entitled The Calusari had received a BBFC ‘18' rating in April 1997 for video release.

During the course of the programme the spirit periodically possessed the Holvey family's living son, Charlie, and brings about the death of three members of the Holvey family. The family members were killed by: being pushed into the path of an on-coming fairground train; being attacked by birds; and, strangulation. The culmination of the episode shows Charlie, in a hospital bed, being exorcised of the spirit by several Romanian ritualists (the eponymous Calusari). At one point during the exorcism scene Charlie struggled to such an extent with the ritualists (who were holding him down) that his neck bones sounded as if they had cracked.

Ofcom received a complaint that this episode of the series contained frightening content and was unsuitable for broadcast before the watershed.

Ofcom conidered Rule 1.21 (BBFC 18-rated films or their equivalent must not be broadcast before the watershed).

Ofcom Decision: Breach of Rule 1.21

Ofcom considered that, whilst the Calusari Episode was in The X Files tradition, it was, as Virgin Media had noted, stronger than other episodes from The X Files strand. Ofcom noted that the overarching dark and menacing paranormal theme of the programme resulted in the Calusari Episode receiving a BBFC ‘18' rating.

Ofcom acknowledged that the ‘18' rating had been given to the episode some 12 years prior to the broadcast, but noted that this episode has not been re-classified by the BBFC since. To Ofcom's knowledge the Calusari Episode is the only episode of The X Files currently in receipt of a BBFC ‘18' certificate.

Ofcom also noted Virgin Media's comparison of the Calusari Episode to two films which had received BBFC ‘15' ratings in 2004 and 2005. Ofcom did not accept this argument because the rule clearly states that BBFC ‘18' rated material must not be broadcast before the watershed on any service. This Rule applies, regardless of the time that has lapsed since the material was originally rated and the broadcaster's own judgement on the strength of the material in comparison to more recent films. Ofcom considered that the BBFC's summary of the Calusari Episode as containing occasional strong horror was an accurate reflection of this programme. This description, taken together with its BBFC ‘18' rating should have alerted the broadcaster to the potential harm and/or offence of various scenes within the programme (in particular the exorcism scene, to any children that might have been watching).

Given the above, the programme was therefore in breach of Rule 1.21.

Adult Previews channel, Virgin Media
5 May 2009, 22:00

The Adult Previews channel is located on the Virgin Media service (Channel 470). The channel is operated and complied by Virgin Media Limited. It is available without any access restrictions and is situated in the ‘adult' section of the Virgin Media electronic programme guide. Its purpose is to promote ‘adult-sex' channels with mandatory access restrictions which are available on the Virgin Media service. From 22:00 the channel broadcasts a series of promotional trailers on a loop, each of which lasts around ten minutes.

Ofcom received a complaint about a free-to-view promotional trailer broadcast from 22:00 on 5 May 2009, promoting the ‘adult-sex' channel Playboy TV . The complainant said the trailer showed naked women simulating sex, touching themselves and other women. The complainant felt that the sexual material broadcast in the trailer was too strong to be available at 22:00 without mandatory access restrictions.

Ofcom noted that the trailer for Playboy TV included eight separate promotions for programmes of a sexual nature broadcast on this channel. The trailer included frequent, but brief, clips of strong sexual material. These included: shots of naked breasts and female pubic areas; men and women touching each other in a sexual manner, including licking and kissing breasts; women stroking their breasts and buttocks; and cropped shots of real or simulated sex acts. The trailer also contained an example of the most offensive language: …do you like it when you get really hard and the girl fucking shoves your cock down her throat?

Ofcom considered Rules 2.1 (generally accepted standards) and 2.3 (material which may cause offence must be justified by the context).

Ofcom Decision: Breach of Rules 2.1 and 2.3 of the Code

Ofcom noted the broadcaster's argument that the material complained of met generally accepted standards because it was broadcast on a channel with the specific and clearly labelled purpose of showing promotional trailers for ‘adult-sex' channels. Further, the channel was located in the ‘adult' section of the Virgin EPG and therefore the material would not have exceeded the expectations of the audience. Also it was shown after 22:00. In addition, Ofcom noted that prior to 22:00 the channel provides information to viewers regarding how they can restrict access to the ‘Adult Preview' channel and the ‘adult-sex' channels it promotes.

However, with regard to this particular trailer, Ofcom was concerned by the explicit nature of the content and the time of broadcast, given it could be viewed without any access restrictions. The trailer contained frequent shots of naked breasts and female pubic areas, men and women touching each other in a sexual manner and cropped shots of real or simulated sex acts. It also contained most offensive language as well as sexually explicit language. In Ofcom's view therefore this material had the potential to be highly offensive to viewers, especially ones who came across it unawares, and so was not within audience expectations. Graphic content of this nature, albeit tightly edited, requires a strong justification to be broadcast without access restrictions, particularly if relatively soon after the 21:00 watershed. In this case the strong content was broadcast from 22:00 – only one hour after the watershed.

Ofcom has consistently made clear through previous published decisions that the broadcast of explicit sexual content, such as this, which is freely available and without access restrictions is not justified by context simply by it being shown on a channel: in the ‘adult' section of an EPG; and whose title makes clear it specialises in broadcasting ‘adult' content. Furthermore, the provision of information to the viewer about voluntary parental controls which can restrict access to that channel does not provide contextual justification for the broadcast of material of this nature at this time. This is particularly relevant in this case, given that the information provided by the broadcaster was not part of the trailer complained of or the programming broadcast after 22:00. In light of these factors, it was Ofcom's view that, on balance, the broadcast of this offensive material was not sufficiently justified by the context and was a breach of generally accepted standards. Therefore the material breached Rules 2.1 and 2.3 of the Code.

Ofcom Sex Station
Lucky Star, 21 May 2009, 21:00

Sex Station is free-to-air and unencrypted programming on the channel Lucky Star, located in the 'adult' section of the Sky EPG. The channel broadcasts programmes based on interactive 'adult' sex chat services: viewers are invited to contact female on-screen presenters via premium rate telephony services. The female presenters dress provocatively and encourage viewers to contact them.

As part of a separate investigation into the channel, Ofcom noted that during content broadcast on the channel after 21:00, the website URL www.sexstationtv.com was broadcast at intervals, in scrolling form across the screen.

Ofcom noted that on visiting the website there were no mandatory forms of age verification in place to enter the website. To access videos available on the website, users were required to complete mandatory age verification checks. Ofcom noted however that the Website contained a number of unprotected free-to-view still pornographic images. Ofcom considered that these images were equivalent to BBFC R18-rated material.

Although the still images on the Website were not broadcast on-air, Ofcom was concerned that the Website URL was being promoted free-to-air. This was especially of concern, given Ofcom's previously published Finding on 21 July 2008 and 18 May 2009 against RHF Productions Ltd. These findings made it clear that it was a breach of the Code for free-to-air and unencrypted channels to make promotional references to website URLs which led to content that was equivalent to R18-rated material unless appropriate protection was in place.

Ofcom considered:

• Rule 2.1 (generally accepted standards)
• Rule 2.3 (broadcasters must ensure that material which may cause offence is justified by context)

Ofcom Decision: Breach of 2.1 and 2.3

In a finding of 21 July 2008 Ofcom stated that: While the content of…websites is not in itself broadcast material, and therefore not subject to the requirements of the Code, any on-air references to…websites are clearly broadcast content. Such references must therefore comply with the Code.

Broadcasters may legitimately promote their own websites. While Ofcom does not regulate broadcasters' websites, the 21 July 2008 Finding made clear: In no circumstances may such websites contain R18 material if they are promoted on a licensed service. Similarly, as the RHF Sanctions Decision stated: The broadcast of R18-rated equivalent material, or website URLs whose websites lead to R18-rated equivalent material, is totally unacceptable.

Ofcom took into consideration: the broadcaster's apology; that the Website URL was broadcast intermittently after the 21:00 watershed, when it was likely that fewer children would be viewing; and the channel is found in the 'adult' section of the EPG; and the fact that, although the broadcaster should have been aware of the contents of the 21 July 2008 Finding, it did remove all Website URLs from its programming, on becoming aware of the RHF Sanctions Decision.

Nonetheless, in this case the Website URL was broadcast free-to-air, and it was possible to enter the Website (via the Website URL), without undergoing any mandatory age verification checks. On the Website were a number of free-to-view pornographic images that Ofcom considered were equivalent to R18-rated material. The fact that, for example, the promotional references to the Website URL were broadcast on a channel in the 'adult' section of the EPG and the nature of the content on Lucky Star, did not justify by the context the broadcast of these references. There was therefore a breach of generally accepted standards.

Gay TV promotion broadcast free-to-view
Gay TV, 26 March 2009, 22:00

Gay TV is a channel located in the adult section of the Electronic Programme Guide on both Sky and Virgin which specialises in showing homosexual adult-sex material. It is owned and operated by RHF Productions Limited, which is also the Licensee. Most of this content is broadcast encrypted in accordance with the requirements of the Code. However, in common with a number of other adult-sex channels, it also broadcasts short free-to-air promotions usually between 10 and 15 minutes in length after 20:00. Their purpose is to encourage viewers to subscribe to the encrypted adult-sex service. One viewer complained to Ofcom that material transmitted in a free-to-view promotion by Gay TV from 22:00 on 26 March 2009 was too explicit for the time of broadcast.

Ofcom noted that in this promotion some of the male presenters spoke to camera fully naked with their genitals in full view and on occasion in close up. Brief but non-explicit sequences of sexual activity, where genitals were frequently and clearly visible, were also shown and on occasions the genitals were being handled. In addition, some explicit sexual language was used by the presenters. Examples included:

• I'm aching to show you all the big dicks we have…getting hard for you tonight…
• we will be unloading our balls all over big hot studs…
• it's explicit sucking and fucking action…these boys are fresh and their cocks are throbbing to get some tight arse
• it's all about cock so come in and get some tonight...
• cock after cock after cock, giving and taking it until everyone blows their load.

Ofcom considered rules:

• 2.1 (the broadcaster must apply generally accepted standards)
• 2.3 (offensive material must be justified by the context).

Ofcom Decision: Breach of Rules 2.1 and 2.3

Ofcom noted the two graphic images of male genitalia referred to by the broadcaster. In addition however it also featured frequent scenes which focussed in close-up on genitals much of which had a graphic sexual element to it and brief clips of 'real couples' having sex which, although brief and without any sexual nudity, would have left viewers in no doubt as to what was being depicted. It also featured a number of close-ups of the presenters' genitals as they spoke to camera with their legs spread apart including one presenter led segment where the camera moved slowly in close up on his genitals whilst he spoke. In addition, as described above, some extremely explicit sexual language was employed. The material in this promotion therefore had the potential to cause offence.

Ofcom then had to consider whether this potentially offensive material was justified by the context. In doing so we noted first that it was broadcast an hour after the watershed at 22:00 on a channel located in the 'adult' section of the EPG and was preceded by a warning that it was aimed at a “mature audience aged 18 or over”. However, the use of material potentially suitable for broadcast only under encryption in promotions such as this requires particular care, precisely to avoid the inclusion of inappropriate and/or unacceptable material, however, brief.

Ofcom disagreed with the broadcaster's assertion that this material was justified by the context because it was transmitted “well after” the watershed. Ofcom does not consider that 22:00 is so significantly past the watershed that audience expectations will have evolved to the point that such explicit material as was included in this promotion (broadcast without mandatory access restrictions) could be transmitted at 22:00 without a correspondingly significant amount of justification for doing so.

Similarly, the warning provided by the broadcaster on this occasion (i.e. that it was aimed at an audience aged 18 and over) did not, in Ofcom's view, adequately convey the strength of some of the sexual material that was broadcast. This is particularly the case when taking into account that it was freely available to view by anyone who might have come across it unawares.

Ofcom did not agree with the broadcaster's assessment that the current frequency with which it alleged it is “normal” to see male genitals in 'adult' promotions that are broadcast without mandatory access restrictions meant that the range and extent of the genitals on show in this promotion was acceptable or that it was on a par with similar heterosexual material. Similarly, while Ofcom accepts that there is some editorial justification for the use of strong sexual language used in tandem with sexual images in promotions broadcast without mandatory access restrictions, broadcasters cannot assume that the requirements of Section Two of the Code cease to apply at all. In this case the use of language such as “it's explicit sucking and fucking action…these boys are fresh and their cocks are throbbing to get some tight arse…cock after cock after cock giving and taking it until everyone blows their load” was unacceptable for broadcast at 22:00 particularly when combined with a number of extremely explicit images of genitals and brief scenes of 'real' sex.

In addition, Ofcom notes the advice given by the ITC (as described by Gay TV) related to what images could be broadcast, Gay TV said that the ITC had indicated to in 1998 that there were key differences between homosexual and heterosexual content which meant that more shots of genitalia could be shown in homosexual content. However, the Licensee was unable to provide any written evidence of the advice given by the ITC ten years ago. In assessing this particular case, Ofcom took into account the combined effect of the use of explicit images of genitals – including two for which the Licensee has apologised –with the use of some extremely explicit sexual language and it was clear to Ofcom that such material went beyond any apparent advice which was given over ten years ago by a different regulator and under a different Code. This promotion was broadcast without access restrictions only one hour after the watershed. In assessing this content under the current Code, Ofcom did not find it comparable with the type of material which might be more acceptable for broadcast without access restrictions after 23:00.

Taking all of the above into account, the broadcaster did not apply generally accepted standards and this promotion was therefore in breach of Rules 2.1 and 2.3.

Comment: Early to Bed and Frustration

22nd July, thanks to Alan

Why the hell does Ofcom insist that everybody who wants to watch porn has to be (1) rich enough to afford pay TV and (2) a "nighthawk"? There must surely be porn lovers who want a swift J Arthur at half past nine before having an early night at ten, as well as strapped for cash and therefore preferring to get their porn free.

Our worthless TV censor, Ofcom, seem to excel in writing such bullshit fine ideals as

Empowering citizens and consumers and improving regulatory compliance where necessary

Reducing regulation and minimising administrative burdens

Whilst at the same time they are running an almost religious crusade against sex on TV.

Anyway, if anybody would like to read any further examples of vaporous nonsense, then they have just published their Annual Report

Conservative leader David Cameron has said that he would remove media regulator Ofcom's policy-making powers if the party were to win at the next General Election.

In a speech to the Reform think tank, Cameron laid out his plans to reduce the number of quangos, should he become Prime Minister.  

The plans include scrapping Ofcom and the Qualifications, Curriculum and Development Agency (QCDA), in order to cut costs.

The Conservative leader said: The problem today is that too many state actions, services and decisions are carried out by people who cannot be voted out by the public, by organisations that feel no pressure to answer for what happens in a way that is completely unaccountable.

He said that some powers would be handed back to Ministers, with some quangos being reformed and slimmed down, while others - including Ofcom - would cease to exist in their current form.

The policy-making functions of Ofcom - such as deciding the future of local news and Channel 4 - would be handed back to the Department for Culture, Media and Sport.

In an interview with BBC Breakfast, Cameron said: Give Ofcom, or give a new body, the technical function of handing out the licences and regulating lightly the content that is on the screens. But it shouldn't be making policy, it shouldn't have its own communications department.

Bang Babes
Tease Me, 18 March 2009, 21:00

Bang Babes is programming of a sexual nature, available freely without access restrictions on the channel Tease Me (Sky channel number 912). It is situated in the 'adult' section of the Sky EPG. The channel broadcasts programmes, after the 21:00 watershed based on interactive 'adult' sex chat services: viewers are invited to contact on-screen presenters via premium rate telephony services. The female presenters dress and behave in a sexually provocative way.

Ofcom received a complaint about content broadcast, soon after 21:00, on Tease Me on 18 March 2009. The complainant said that the programme showed the presenters simulating masturbation and included close up screen images of the presenters' anal areas. Overall the sexual content was considered to be in excess of the material generally available on a channel without restricted access at 21:00.

Ofcom viewed the material. It noted that the broadcast showed three different presenters during the period 21:00 and 22:00. In the background a rolling film showing clips of women's bodies, which included one particular image of buttocks that showed the area immediately around the anus.

At 21:05 one of two presenters onscreen, wearing thong style pants, positioned herself on all fours and began to thrust her body to the camera for a period of approximately five minutes during which anal detail was visible. At 21:13 a single presenter replaced the two women. There followed a 45 minute period with this presenter wearing a very skimpy thong. Images of her with her legs open and her buttocks to the camera showed her anal area in some detail. She also lightly touched her buttocks and genital area and appeared to simulate oral masturbation.

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

Ofcom Decision: Breach of Rules 2.1 and 2.3

In terms of the content of this broadcast one of the two presenters on screen at 21:05 posed in a sexual position, on all fours. Given that she was wearing thong style underwear there were occasions when her anal and labial areas were shown in intrusive detail. In addition, when the single presenter took over at around 21:13, she lay on her back and opened her legs whilst she gyrated in a sexual manner. She also lightly touched her genital and anal area and spanked her buttocks and on a few, brief occasions appeared to simulate oral masturbation.

In Ofcom's view the actions of each of these presenters onscreen between 21:05 and 22:00 was sexualised and sexually provocative and filmed in an intrusive manner. The nature and location of the channel in the 'adult' section of the EPG and the existence of parental controls are not sufficient in Ofcom's view to justify broadcast of such content before 22:00. The broadcast was therefore not justified by the context and breached Rules 2.1 and 2.3.

The Pad
Tease Me 2, 20 March 2009, 12:30

The Pad is a televised daytime interactive chat programme broadcast without access restrictions. It is located in the 'adult' section of the EPG on the service Tease Me 2 (Sky channel number 948). Viewers can call a premium rate telephone number and talk to an onscreen female presenter.

Ofcom received a complaint that material broadcast at lunchtime featured a presenter in a black PVC basque and fishnet tights lying in various positions such as on her side and back with her legs intermittently opening. In addition, she stroked her legs, thighs and buttocks throughout the broadcast. The presenter's outfit was skimpy revealing a low cleavage, and whilst lying on her back one of her nipples was visible for a short period of time.

Ofcom considered Rule 1.3 (children must be protected from unsuitable material by appropriate scheduling) and Rule 2.3 (broadcasters must ensure that material which may cause offence is justified by context).

Ofcom Decision: Breach of Rules 1.3 and 2.3

With reference to the nature of the content, the presenter was dressed in an item of clothing that was very revealing to the point where her breasts were barely covered. This meant that when she adopted a certain position on her back, and the producer cut to a camera angle looking down onto her body, it was likely that her nipple area would be exposed to viewers. In Ofcom's opinion, one of the presenter's nipples was visible despite any nipple covers she was allegedly wearing.

In addition, in Ofcom's view, the positions adopted by the presenter – such as lying on her back with her legs opening and closing, and lying on her side lifting her legs up and down whilst stroking her thighs and buttocks – exceeded a “flirty” manner and were sexualised in nature.

Whilst showing a bare breast and nipple before the watershed is not a breach of the Code where it is justified by context, in this case the sexual nature of this material in addition to the visibility of the presenter's breast and nipple meant this partial nudity was shown in a clearly sexual context. This in Ofcom's view was not acceptable for a daytime broadcast.

Ofcom Note to Daytime and Adult Sex Chat Service Broadcasters

Ofcom has during the past two years published a number of breach findings relating to daytime chat and adult sex chat channels which are available without access restrictions. Some of these contraventions were considered serious enough and/or were repeated so that Ofcom imposed financial penalties.

In this Bulletin, Ofcom has recorded breaches of the Code against broadcasters for transmitting material which was too sexually explicit.

Broadcasters operating in this area are reminded that Ofcom's Broadcast Bulletin and adjudications by the Content Sanctions Committee contain important guidance on the broadcast of sexual material. Failure to follow such guidance may result in Ofcom considering further regulatory action, including statutory sanctions.

Daytime and adult sex chat broadcasters must take all reasonable steps to protect people under eighteen and ensure that generally accepted standards are applied to their material.

Daytime chat programmes must ensure that all material broadcast is appropriate for the time of day bearing in mind that it is transmitted before the watershed and at times when children may be in the audience.

Similarly, material of a sexual nature broadcast after the 21:00 watershed must be appropriately limited and justified by the context to ensure compliance with generally accepted standards. For instance, broadcasters operating in the free-to-air 'adult' sex chat sector should take great care not to include physically invasive shots, in particular images of anal or genital areas for example, or of any real or simulated sex acts including masturbation or intercourse, or inappropriate shots of simulated oral sex.

Jonathan Ross
BBC Radio 2, 9 May 2009, 10:00

During a live and unscripted part of his Saturday morning radio show, Jonathan Ross discussed the prizes for the week's competition with his producer, Andy Davies. The prizes were primarily made up of Hannah Montana merchandise, which included a Hannah Montana MP3 player. As part of this discussion, Jonathan Ross said:

If your son asks for a Hannah Montana MP3 player, then you might want to already think about putting him down for adoption in later life, when they settle down with their partner.

Ofcom received 61 complaints from listeners who were concerned that Jonathan Ross' comments were offensive and derogatory towards the gay community.

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

Ofcom Decision: Not in Breach

Jonathan Ross' BBC Radio 2 show has been broadcast since 1999. It has an established format that is largely made up of quirky, humorous stories and on-air chat with the show's producer, Andy Davies.

The comment complained of was made during a live and unscripted element of the programme as part of a light-hearted discussion between Jonathan Ross and Andy Davies. In Ofcom's opinion, the comment was clearly presented as a joke intended to make light of the reactions that some parents may have if their child chooses a toy that is very widely recognised to be designed and marketed for the opposite sex. The humour was therefore based on the absurdity of the scenario and was not intended to cause offence. The fact that this comment was intended to be a joke was illustrated further by the reaction from Andy Davies, who was heard laughing. Ofcom therefore considered that the nature of the joke and the tone and manner in which it was presented made clear that it was not intended to be hostile or pejorative towards the gay community in general.

Ofcom took into account that Jonathan Ross is a well known personality, who has an irreverent, challenging and at times risqué humour that is familiar to audiences. Ofcom also recognised that the comment was clearly aimed at an adult audience. Importantly, if children did hear this comment it was unlikely that they would have understood it or its implications. In light of this, Ofcom considered that there was little potential for the comment to be imitated by children, for example in the playground.

Ofcom considered that the comment was in keeping with the usual light-hearted and humorous style and format of the programme. The nature of the joke would have been well understood by the vast majority of listeners and would not have exceeded their normal expectations for the programme.

Taking all these factors into account, Ofcom considered that on balance the material was justified by the context and met generally accepted standards. The programme was therefore not in breach of Rule 2.3 of the Code.