Ofcom Watch

Christopher Wollard, group director of Ofcom, has written to ATVOD:

Two years ago, Ofcom designated ATVOD (the Authority for Television on Demand) as co-regulator of editorial content included in on-demand programme services ('ODPS').

Paragraph 13 of the Designation says that: The Designation shall be subject to a formal review by Ofcom at the expiry of two years from the date of this Designation taking effect [i.e. 18 March 2012] .

We propose to take the opportunity of the formal review of the Designation to take a broader look at how co-regulation is working.

To this end, the terms of the review, which have been agreed by Ofcom's Content Board, are to:

• (a) assess whether Ofcom's tests for co-regulation are still being met, and that ATVOD remains an appropriate regulatory authority

• (b) consider how ATVOD is discharging the designated functions and whether it is meeting the obligations and conditions

• (c) identify any issues arising from the co-regulation of ODPS that would merit further consideration

• (d) consider whether to continue the designation, and if so, whether there are any aspects of the designation that may require amendment

Ofcom are keen to hear from stakeholders, particularly VOD providers. Contributions are invited up until 21st May 2012.

Ofcom expect to announce the results of the review in summer 2012.

Channel 4 has been cleared by Ofcom for running a series of posters promoting the TV series My Big Fat Gypsy Wedding. Billboards and other media adverts for the second series of the show used the words Bigger. Fatter. Gypsier.

More than 300 complaints were rejected after organisations such as the London Gypsy and Travellers Unit said the word gypsier in the advert was shocking and potentially racist.

January's Gypsy Blood documentary was also cleared of causing offence. More than 500 complaints were received by Ofcom about the 90-minute True Stories programme on Channel 4.

The TV censor said its rules had not been broken and that scenes, including children fighting and animal cruelty, showed context and were justified as part of the documentary.

The Advertising Standards Authority (ASA) also rejected complaints about promotion surrounding My Big Fat Gypsy Wedding's second series.

Storm Night
Storm, 9 December 2011, 23:30

Storm is a free to air babe channel (Sky channel number 966). The licence for the service is held by Chat Central.

A complainant alerted Ofcom to the broadcast of inappropriate content during Storm Night on 9 December 2011.

The female presenter was wearing: a grey pleated skirt, pulled up over her stomach and under her bare breasts; a striped tie draped over her shoulders; a novelty necklace; and white trainers and socks. The presenter was not wearing any underwear.

During the broadcast she lay back on a desk, facing the camera with her legs tightly closed. At various points during the broadcast she changed position and covered her genital area with either a flat or cupped hand.

Approximately 20 minutes into the broadcast she opened her legs to camera and placed a cupped hand over her genitals, clearly applying pressure against her genital area.

She also poured white lotion onto her breasts, which remained there for the duration of the broadcast.

Ofcom considered rule 4.2 of the BCAP Code:

Advertisements must not cause serious or widespread offence against generally accepted moral, social or cultural standards.

Ofcom has previously published rules on what Ofcom considers to be acceptable to broadcast on these services post-watershed.

adult chat broadcasters should at no time:

• broadcast anal, labial or genital areas or broadcast images of presenters touching their genital or anal areas either with their hand or an object; and
   
• at no time broadcast shots of presenters using liquids of a sort in a way which suggests the liquid is ejaculate.

Ofcom Decision Breach of rule 4.2

In Ofcom's view the images highlighted above were strong and clearly capable of causing offence. We noted that the broadcast included material that is clearly inconsistent with Ofcom's guidance. For example: the presenter was clearly applying pressure against her genital area with her hand and used body lotion in a way that suggested it was ejaculate.

Ofcom noted that in conjunction with those images the presenter performed various other actions including: stroking her body; shaking her breasts to camera; and miming fellatio. Her position on screen (reclining on the desk facing the camera) also resulted in her genital area becoming the focal point of the shot, despite the fact there were no actual images of her genitals, intrusive or otherwise. Ofcom considered the material included images that are not permitted in „adult chat advertising content that is available without mandatory restricted access.

Ofcom considered that because the presenter was not wearing any underwear, the chances of the material contravening the relevant rules and guidance was significantly increased because she had to ensure her genital area was adequately covered by her hand each time she changed position.

Ofcom does not prohibit nudity in adult sex chat services. However, as set out in Ofcom's guidance, images of presenters touching their genital or anal areas either with their hand or an object are prohibited within the context of „adult chat advertising content that is freely available without mandatory restricted access. In light of this we would caution against the use of naked presenters when broadcasting this content.

Ofcom found this material in breach of Rule 4.2 of the BCAP Code.

News International's involvement in the U.K. phone-hacking and bribery scandal has drawn attention from regulators, who are examining the company's fitness to hold a broadcasting license through its stake in Sky.

The ramifications of the scandal are being scrutinized by a special team, dubbed Project Apple, at TV censor Ofcom, according to minutes released under a Freedom of Information Act request published on Ofcom's website.

Ofcom, which has the ability to revoke a broadcaster's license, will determine whether the scandal has compromised News Corp.'s ability to manage the U.K.'s biggest pay-TV company.

UK TV censor Ofcom has complained to the Dutch media regulator about the content of adult chat channels Babestation and Smile TV, which are licensed in the Netherlands but broadcast to millions of Freeview households in the UK .

The UK TV cenosr said that this is an important issue, and active discussions are under way with Commissariaat voor de Media (Dutch media authority), the country's content licensing body, to see how British audiences can be protected from scenes of near naked women massaging each other's breasts, masturbating and faking orgasms.

Babestation and Smile TV broadcast free to air on digital terrestrial TV service Freeview between 10pm and 6am.

Ofcom has previously revoked the broadcast licences of UK adult TV channels that are anywhere near sexy. However, as Babestation and Smile TV are licensed by the Dutch media authority, rather than Ofcom, the UK regulator has no power to block or ban them.

The TV censor added that it has no tally of the number of complaints received from British viewers about the channels, adding that it advises those offended to approach the Dutch regulator.

Caroline Dinenage, Conservative MP for Gosport and member of the parliamentary inquiry into online child protection, said there was an urgent need to address inappropriate television content:

Some of the images on Freeview may be contravening UK regulation. This is terrestrial TV, free to everyone, including children and teenagers.

We need to ensure that Freeview operators who sell capacity to non-UK porn channels behave responsibly, and respect UK regulations. There may be a compelling case for Ofcom to withdraw licences from companies selling spectrum to porn channels, without putting in place age restrictive access control.

The channels could be in breach of puritanical UK censorship rules  by promoting websites offering R18 hardcore pornography content or equivalent.

An Ofcom spokesprude said If they don't do what we ask them we can go to the European Commission.

A Freeview spokesperson said as an open platform it is required to broadcast licensed channels that apply for distribution, including Babestation and Smile TV. The channels use DTT spectrum owned by Arqiva to broadcast on Freeview. Each multiplex owner is responsible for a bundle of spectrum via which a number of channels are broadcast. Any spectrum not used for their own channels is leased to other broadcasters.

A spokesman for Dmol, a company owned by the operators of the six Freeview multiplexes -- the BBC, ITV, Channel 4 and Arqiva said that the current arrangement was not ideal , with the Dutch-licensed adult chat channels accessible to 90% of about 10.6m UK homes that use Freeview:

We are conscious of the need to move quickly. We are encouraged by news of Ofcom's active discussions.

ChatGirl TV
Adult Channel (Channel 901), 4 November 2011, 21:00 to 21:30

ChatGirl TV is a babe channel operating when the Adult channel isn't. The content is supplied by a third party but Playboy TV is responsible for the compliance of the service.

Ofcom received a complaint that the sexual content detailed below was too strong immediately after the watershed.

The female presenter was wearing a one piece black and white patterned outfit. This consisted of two thin strips of fabric covering her nipples only joined by strings to a thin strip of fabric which covered her inner genital area only. Over the top of this outfit she wore leather-look hot pants which had a zip at the front which she pulled down at approximately 21:02 to reveal her pubic area and inside the thin fabric covering her inner genital area.

From 21:00 the presenter adopted various positions. She lay on her side gently thrusting her hips forward and at times lifted up a leg to reveal her crotch area in greater detail. In this position, she pulled tightly on the strings connecting the strip of fabric covering her inner genital area to emphasise her pubic area and she repeatedly stroked her legs and inner thighs. The camera regularly zoomed into the presenter's crotch in an intrusive and prolonged manner during the broadcast.

The presenter also lay on her front and pulled down her hot pants to under her buttocks and thrust her bottom upwards. The images of the bare buttocks, shot to the side to avoid genital detail, were at times close up and prolonged.

Ofcom considered Rule 32.3, which states:

Relevant timing restrictions must be applied to advertisements that, through their content, might harm or distress children of particular ages or that are otherwise unsuitable for them.

Playboy TV viewed the material and confirmed that it did not conform to the guidelines on adult PRS services1 .

The content supplier, Access All Media, also wrote to Ofcom and conceded that on some occasions her [the presenter's] movements, together with the camera-work, have resulted in content which appears stronger than intended due to the skimpy nature of her outfit . It further accepted that the close-ups were unfortunate given the presenter's outfit. We can now see how the combination of the close-ups and the presenter's outfit served to increase the strength of the content beyond the intended threshold, for which we sincerely apologise .

Ofcom Decision: Breach of BCAP Code Rule 32.3

In Ofcom's view, the revealing clothing, sexual positions and close up intrusive images were intended to be sexually provocative in nature. In light of this behaviour and imagery, Ofcom concluded that this material was clearly unsuitable for children.

In Ofcom's opinion, viewers (and in particular parents) would not expect such material to be broadcast and available to view so soon after 21:00, particularly given that material broadcast on such services prior to 21:00 should be non-sexual in tone and apparent intent. The broadcast of such sexualised content was inappropriate to advertise „adult sex? chat so soon after the 21:00 watershed. This broadcast was therefore in breach of BCAP Code Rule 32.3.

This present contravention of the BCAP Code is another example of poor compliance by the Licensee, given the strength of the material broadcast immediately following the watershed. However, Ofcom notes that the Licensee states it has taken several measures to improve its compliance since 15 November 2011. We would therefore anticipate no further similar breaches of the BCAP Code. Also the Licensee admitted promptly and fully that this content did not comply with the Chat Service Guidance. Playboy TV remains on notice however that any further similar contraventions of the BCAP Code will be considered for further regulatory action by Ofcom.

Breach of BCAP Code Rule 32.3

 The X Factor Results Show
ITV1, 23 October 2011, 20:00

This one hour live episode of The X Factor revealed which contestants had received the highest number of votes to keep them in the competition. Channel TV complied the programme on behalf of the ITV Network for ITV1.

A total of 108 complaints to Ofcom highlighted the use of the word 'fuck'.

Ofcom noted that at approximately 20:42 presenter Dermot O'Leary announced that the contestant Frankie Cocozza had received enough votes to secure his place in the following week's show, to which Frankie Cocozza responded: Fucking have it. Get in there.

Ofcom considered Rule 1.14 of the Code, which states:

The most offensive language must not be broadcast before the watershed (in the case of television) ...

Channel TV said it deeply regretted Frankie Cocozza?s unexpected and unprompted outburst and had already apologised directly to viewers who had contacted ITV to complain.

The Licensee said that to prevent the broadcast of offensive language on the show judges, contestants and guests are all briefed carefully before they take part in the programme. Channel TV said that until now this has been all that was needed .

Channel TV said: Reviewing the footage it [i.e. Frankie Cocozza's use of bad language] was barely audible above the studio furore but is just about discernable in a quieter domestic setting . In its view not all viewers would have heard the offensive language as it was broadcast.

The Licensee explained that had we appreciated that the comment was audible to viewers, we would have asked [presenter] Dermot O'Leary to make an immediate apology . Channel TV said it only became apparent towards the end of the broadcast, through monitoring online social media activity, that in fact Frankie Cocozza had used some offensive language and that it had been heard by some viewers.

As a result, the hosts of The Xtra Factor on ITV2 (which is broadcast live immediately after The X Factor Results Show) apologised for any offence caused, as did Frankie himself.

The Licensee pointed out that an audio edit was made to remove the offensive language from ITV?s online catch up service (ITV Player).

Ofcom Decision: Breach of Rule 1.14

Ofcom noted that the word fucking was clearly audible to viewers who were watching the programme at approximately twenty minutes before the 9pm watershed. This was particularly unacceptable in the context of a programme that attracts a substantial family audience.

Later that evening when the Licensee realised the offensive language had been audible to viewers, an apology was broadcast during a live interview with Frankie Cocozza on The Xtra Factor on ITV2. One of the hosts stated: Apologies to anyone who heard the swearing to which Frankie responded: yes, sorry . Ofcom noted however that this apology was broadcast approximately 44 minutes after the offensive language occurred, and on a different channel.

Ofcom was particularly concerned that a high profile live programme such as this did not already have adequate systems in place to monitor the transmission output of the programme as it was broadcast. We considered that in this instance the offensive term was clearly audible to viewers. Had there been suitable compliance procedures in place the broadcaster could have responded in a more timely and appropriate fashion. Licensees are reminded that broadcasting live programme content can pose special challenges and as a result extra measures may be needed to ensure compliance with the Code.

The programme was in breach of Rule 1.14 of the Code.

The Wright Stuff
Channel 5: 6, 7 and 8 December 2011, 09:15

The Wright Stuff is a weekday morning topical magazine programme broadcast live on Channel 5. It is presented by Matthew Wright and includes a different panel of guests each day.

Ofcom received 2,358 complaints regarding comments made by Matthew Wright and a guest during the daily newspaper review included in the programme on 6 December 2011, and Matthew Wright's subsequent apology on 7 December 2011. In summary, complainants considered Matthew Wright and the guest Charlie Baker made insensitive and inappropriate comments when discussing an article in the Daily Mail regarding the first murder case in the Hebrides for 40 years.

While Matthew Wright ( MW ) and Charlie Baker ( CB ) discussed the news item, there was a graphic on screen showing the newspaper article with the headline: First murder hunt in Hebrides for 40 years as teenager's body found and a photo of the murdered 16 year old youth, Liam Aitchison. Ofcom noted the following exchange took place:

CB: There's been the first murder, this is very sad, in the Hebrides on the Isle of Lewis [newspaper article is shown with photograph of the victim].

MW: [mock Scottish accent] There's been another murder .

CB: Not another one, the first one for 40 years .

MW: [mock Scottish accent] Well that's another one then, another murder .

[Audience laughter]

CB: The longest episode of Taggart of all time [MW laughing] there's lots of down-time in between .

On 7 December, Matthew Wright made the following apology:

Now I know that some of you have been upset by some comments during yesterday's newspapers review about the murder of Liam Aitchison in Stornoway. I'd like to apologise if that was the case, certainly no intention on my part to belittle the seriousness or tragedy of the story, or to offend anyone who knew Liam. You know me - touched by death too many times in my life to belittle anything like that. Not helped though by people running campaigns - report Matthew Wright to Ofcom. I mean, grow up, folks ... I'm very sorry all the same.

On 8 December, a further apology was broadcast:

Understandably, I know many of you were upset by comments made in Tuesday's newspaper paper review with regard to the tragic murder of 16- year old Liam Aitchison in Stornoway. I would like to say again that I had absolutely no intention of causing any distress to anyone involved in this tragic event or to upset viewers. I deeply, deeply regret my thoughtless comments, and very sincerely apologise to Liam's family and his community. I truly apologise ok, from the bottom of my heart if I have made their suffering worse. I should add that Charlie Baker also wishes to apologise unreservedly, he's not here this morning and is genuinely sorry for the upset this has caused.

Ofcom considered Rule 2.3 of the Code, which states that:

In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context...

Channel 5 said that it entirely accepted that the comments made by Matthew Wright and Charlie Baker on the programme were unfortunate, misjudged and entirely inappropriate .

Ofcom noted that Matthew Wright's comments included a phrase ( There's been another murder ) commonly associated with the fictional Scottish detective Jim Taggart from the television series Taggart, and delivered in a mock Scottish accent. Ofcom also noted Charlie Baker's subsequent response The longest episode of Taggart of all time there's lots of down-time in between and his remarks regarding the quality of fishing in the Western Isles. Our view was that all these comments were clearly capable of causing offence to viewers given the sensitivity surrounding the very recent murder of a 16 year old teenager in an isolated Scottish community.

Ofcom took account of the fact that The Wright Stuff is a live programme, and comments made by Matthew Wright and Charlie Baker during the news review were clearly unscripted and made spontaneously. Charlie Baker's remarks in particular were made in response to a comment by the presenter of the programme, which according to Channel 5 was unexpected to the production team and to Charlie Baker given the briefing exercise before the programme started.

Notwithstanding this editorial context, Ofcom considered that the degree of offence that the comments caused was considerable. This was mainly because Matthew Wright responded to Charlie Baker's introduction to the news story by making a joke that made light of the murder. He then went on to laugh loudly with the audience as the conversation continued. In doing so, he appeared to pay no regard to the unfortunate circumstances of this murder case concerning the killing of a 16 year old well known to many within the local community in which he lived. The potential for offence was heightened because Matthew Wright made his joke while a photograph of the victim Liam Aitchison was being shown on-screen.

We also observed that no apology was broadcast on 6 December in the programme itself. The absence of a timely apology was likely to have increased the degree of offence.

Absent of any mitigation, the programme would have been in breach of the Code. However, Ofcom noted that: Channel 5 broadcast two apologies on 7 and 8 December 2011, and the presenter has apologised directly to Liam Aitchison's family; Channel 5 removed the 6 and 7 December programmes from its on demand service; and, Channel 5 has taken steps to improve compliance in response to this incident.

Ofcom recognises that the comments caused considerable offence, particularly to viewers in Scotland. On balance, however, and in light of the steps taken by Channel 5 to mitigate this offence, Ofcom considered the matter resolved.

Ofcom has made an appeal decision that Ofcom was correct to determine that the MTV online service Viva TV Music is subject to expensive censorship as an on-demand programme service

An appeal by MTV Networks Europe against an ATVOD determination that its web- based music video service Viva TV Music is an on demand programme service and therefore subject to regulation has not been upheld by Ofcom.

The decision means that MTV is required to pay a substantial fee for its own censorship and ensure that the Viva TV Music service complies with a range of statutory requirements .

In order to fall within the scope of the censorship overseen by ATVOD, a service must satisfy a number of statutory criteria, as set out in section 368A of the Communications Act 2003. One of these is that the principal purpose of the service is the provision of programmes the form and content of which are comparable to the form and content of programmes normally included in television programme services.

In the case of Viva TV Music, the decision turned on a number of issues, including whether the Viva TV Music section of the website constituted a service in its own right, and whether music videos are 'TV-like programmes.

Sol, Fest & Oroliga Föräldrar
Kanal 5, 16 September 2011, 19:00 CET

Kanal 5 is a Swedish language channel broadcasting to Sweden from the UK. The licence for Kanal 5 is held by SBS

Sol, Fest & Oroliga Föräldrar (Sun, Party and Worried Parents) is a programme in Swedish in which groups of young people go on their first holiday abroad unaccompanied, unaware that their parents are secretly abroad with them and watching everything that occurs. In this episode a group of young men and women from Sweden travelled to the resort of Ayia Napa in Cyprus.

Ofcom received a complaint about the programme. The complainant said that the  programme contained content unsuitable for young children, such as nudity, urination
and sexual themes.

Ofcom noted that the programme featured the following material:

• a young woman baring her breasts (which were obscured with blurring);
• comments of an offensive and sexual nature, including claims by the young men that one of their objectives on the trip was to “knulla horor” (translated into English as “fuck whores”);
• a young man vomiting after trying a drink;
• a young man urinating in the corner of a hotel balcony, with his back to the
  camera;
• a young man wearing swimming trunks lying down on his back on the deck of a boat while a young woman (wearing a bikini) licked his bare torso, and then straddled him in a sexual position. The camera later cut back to the pair, and the woman had her head placed over the man's crotch, and appeared to
  mime oral sex;
• frequent swearing and offensive language in both Swedish and English, including the Swedish words “knulla” (translated as “fuck”), “horor” (meaning “whores”), “pissa” (“piss”), “javligt” (“damn” or “bloody”), and the English
  words “fuck” and “motherfucker”; and
• dancing with sexual movements, such as a young man thrusting his crotch at a young woman's rear.

Ofcom considered

• Rule 1.3: “Children must... be protected by appropriate scheduling from material that is unsuitable for them.”
• Rule 1.16: “Offensive language must not be broadcast before the watershed (in the case of television)... unless it is justified by the context. In any event frequent use of such language must be avoided before the watershed.”

SBS accepted that it had made an error , and that a human error made by the scheduling department was behind the failure to edit the programme before broadcast.

And Ofcom recorded Breaches of Rules 1.3 and 1.16

Jeremy Clarkson on the One Show, BBC1

The controversial exchange came as Clarkson was asked his opinion of the civil servants engaged in a day-long industrial action over pensions.

His initial response was: I think they have been fantastic. Absolutely. London today has just been empty. Everybody stayed at home, you can whizz about, restaurants are empty.

However, he added: We have to balance this though, because this is the BBC. Frankly, I'd have them all shot. I would take them outside and execute them in front of their families.

This resulted in 31,000 complaints to the BBC, and 736 to Ofcom.

But the TV censor Ofcom concluded that the Top Gear presenter's comments were not made seriously, and that Clarkson's words were not at all likely to encourage members of the public... to act on them in any way .

It would have been clear to most viewers that his comments were not an expression of seriously held beliefs or views that would be literally interpreted

Ofcom acknowledged the comments were potentially offensive but concluded that they were justified by the context.

Ofcom also pointed out that presenter Alex Jones had made a wide-ranging apology regarding Clarkson's comments at the end of the programme. The BBC also later apologised for any offence caused.

Eyewitness
Ahlulbayt TV, 27 September 2011, 18:30

Ahlulbayt TV is a satellite television channel serving the Shia Muslim community in the UK. The licence for Ahlulbayt TV.

Eyewitness is a current affairs programme that contains lengthy interviews about topics of political interest.

A viewer alerted Ofcom to a programme featuring Agha Murtaza Poya, a Pakistani politician and journalist. In this programme, Agha Murtaza Poya talked about various geo-political issues, and his contribution included a critique of US foreign policy in relation to, for example, Afghanistan, Iran and Israel/Palestine. The viewer considered that the programme:

• incited hatred towards countries such as the USA; and
• presented no alternative point of view to that expressed by Agha Murtaza Poya.

Ofcom noted that the programme featured Agha Murtaza Poya speaking at length about his views on the conflicts in the Middle East, the US presence there, the spread of Islam and the future of Israel. The programme consisted of Agha Murtaza Poya giving answers to a range of questions. The programme did not include the voice of the interviewer. Instead the questions asked in the interview were included in voiceover as part of the programme commentary.

We noted that the programme included a range of statements from Agha Murtaza Poya, including the following, which could be interpreted as being highly critical, in particular, of: the foreign policies of the USA Eg:

I would certainly want all these regimes to start showing a more human face - whether it is an Assad or a Gaddafi or anybody - but the crimes being committed by the so-called international community - that is worse than anything else.

They [the US] didn't fail, they didn't go in for anything else. They didn't fail in Iraq. They beat the daylights out of the Iraqi society, and fractured it, gave it multiple fractures, so therefore... but it's bought Israel ten years, and that was the purpose of going in.

Ofcom considered Rule 5.5 (due impartiality) of the Code, which states that:

Due impartiality on matters of political or industrial controversy and matters relating to current public policy must be preserved on the part of any person providing a service…. This may be achieved within a programme or over a series of programmes taken as a whole.

Ofcom Decision: Breach of Rule 5.5

This programme consisted entirely of an interview with Agha Murtaza Poya. We noted that ATNL argued that any particular view points presented by the guest were challenged through questions included in the voiceover to the programme.

We considered that the questions included in the voiceover did, to some limited extent, clarify or add context to the viewpoints being expressed by Agha Murtaza Poya. In our view however these questions served principally to highlight geo-political issues relating to various nations, such as Palestine, Pakistan and Afghanistan; and served as a means of punctuating the points being made by the interviewee. None of the questions included in the voiceover could reasonably be said to reflect the viewpoint of the US Government in relation to its foreign policy in the Middle East, Pakistan and Afghanistan.

In our view, taken overall this programme contained a range of statements that were highly critical of various aspects of US foreign policy, but did not include any views that could reasonably be said to reflect the viewpoint of the US Government in relation to its foreign policy and that countered the points being made by Agha Murtaza Poya.

The programme gave a one-sided view on this matter of political controversy. Further, the broadcaster did not provide any evidence of views of the US Government on this issue being included in a series of programmes taken as a whole (i.e. more than one programme in the same service, editorially linked, dealing with the same or related issues within an appropriate period and aimed at a like audience). Ofcom therefore considered the programme to be in breach of Rule 5.5 of the Code.

Ofcom is concerned that this breach of Rule 5.5 comes only a few months after a similar breach by the Licensee of the due impartiality requirements of the Code4 . Ofcom is therefore requiring the Licensee to attend a meeting to explain its compliance procedures in this area. The Licensee is put on notice that any further similar contraventions of the Code will be considered for further regulatory action by Ofcom.

Breach of Rule 5.5

Ofcom have fined Light Academy Ltd £ 25,000 in respect of claims made by its Believe TV channel.

Ofcom decided that the programmes on Believe TV:

• Paul Lewis Ministries, December 2010
• Pastor Alex Omokudu Healing Ministry Testimonies, December 2010 - February 2011
• Bishop Climate Irungu Ministries, January 2011

Breached rules:

• Rule 2.1: Generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material .
   
• Rule 4.6: Religious programmes must not improperly exploit any susceptibilities of the audience .

Ofcom considered only the breaches of Rules 2.1 and 4.6 to be so serious as to warrant consideration of a statutory sanction. In addition, Ofcom considered the Code Breaches to be repeated because they happened repeatedly over a period of several months.

Ofcom have previously highlighted a number of examples of broadcast material which had the potential for harm in breach of Rule 2.1, because some viewers with serious illnesses, especially more vulnerable ones, may not seek, or abandon existing, conventional medical treatment on the basis of what they have seen on Believe TV.

For example, Ofcom noted examples:

• Paul Lewis, in the programmes Paul Lewis Ministries broadcast on 21 December 2010 and 22 December 2010, preaching directly to camera and providing 'healing' direct to individuals through the use of his 'Miracle Olive Oil Soap'; and
   
• Bishop Climate Irungu, in the programmes Bishop Climate Irungu Ministries, broadcast on 4 January 2011, providing testimony of 'healing' direct to camera; and
   
• 'testimonies' of congregation members (supported by statements by Pastor Alex Omokudu), which clearly encouraged viewers to believe that the healing or treatment of very serious illnesses, including cancer, diabetes, and heart problems could be achieved exclusively through healing provided by being anointed with a product such as olive oil soap, Ribena or oil.

Ofcom also considered whether to revoke the licence for believe TV but decided that this would not be proportionate.

Anomalies in Guernsey's television and radio laws have been caused by UK authorities failing to communicate, the Home Department has said.

It made the comment in a report asking the legislative assembly known as the States to approve remedial legislation to retrospectively cover changes made in the UK since 2003. The report is due to go before the States in March.

The current laws leave uncertainty over issues such as TV licensing and the power of the regulator Ofcom.

The department said as part of the process of preparing the legislation it has contacted the relevant UK authorities to ensure all future legislation will be passed on to Guernsey.

Ofcom commissioned Ipsos MORI to survey audiences to understand attitudes towards content regulation; and how far, and in what ways, the public expects it should be protected in a world where content can be accessed in such a broad range of ways.

The report Protecting audiences in a converged world is based on findings from seven pairs of workshops conducted across the UK, each of which had around 20 participants. Fieldwork took place in June and July 2011.

Key findings include:

• Protecting minors, and protection from harm, were considered to be the most important areas for future regulation.

• Offence is very important to some, but not at all important to others.

• Impartiality, privacy and fairness were usually considered to be relatively less important. But a wide range of views were expressed, depending on whether participants considered the areas to be an important principle to uphold or personally relevant.

• Knowledge of current content regulation is high for broadcast services, but lower for other services like catch up and VoD (video on-demand).

• Viewers have high expectations of content regulation on broadcast television, and associated VoD and catch-up services.

• Other online audio-visual content is seen to be different from broadcasting content and people have generally lower expectations about regulation in this area.

• Converged TVs and devices, which incorporate broadcast, VoD and open internet services, are considered to be closer to a TV-like experience -- and have a higher expectation of regulation -- than the open internet. It is particularly important to protect vulnerable people in this environment.

• Technology use and social attitudes were found to be the most influential factors in influencing people's views on the future of content regulation.

Ricky Gervais: Science
Channel 4, 14 October 2011, 22:35

Ricky Gervais: Science was a programme featuring a stand-up show by the comedian Ricky Gervais. This post-watershed programme focussed on Ricky Gervais's outspoken thoughts on a variety of topics including racism, fame, obesity, religion and language.

At one point during his routine, Ricky Gervais referred to the singer Susan Boyle, and he made the following remark:

Look at Susan Boyle. If you can. Fucking hell! Jesus Christ. Oh. Shocking. Be fair though, „cause usually in the music industry it's all about image isn't it, you can't just have a great voice and a great talent... but I don't think she'd be where she was today if it wasn't for the fact that she looked like such a fucking mong.

The comedian then proceeded to debate with an imaginary complainant who might object to his use of the word mong on television:

mong? . Yeah he did. Yeah. You can't say „mong? . You can. It's fucking easy. It's one of the easiest words to say, it's like [mouths the word while he says it] „mong?, it's like, you just need lips, „mo...?, even mongs can say it, that's part of the beauty of the word.

He continued in the same vein.

Ofcom received three complaints about Ricky Gervais's comments. They concerned his repeated use of the word mong , which complainants regarded as offensive because of its derogatory association with Down's Syndrome.

Ofcom considered Rule 2.3 of the Code, which states:

In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context... Appropriate information should also be broadcast where it would assist in avoiding or minimising offence.

Ofcom Decision: Not in Breach of Rule 2.3

We noted that Ricky Gervais's example about how the meaning of words changes by saying:

When I came here tonight I called you all „cunts?, remember? That used to be an insult, but now it's a term of endearment. So words change. Okay.

In Ofcom's view, while this clearly drew the focus of the routine on to the subject of how words change, thereby potentially minimising the offence, it was nevertheless clearly also done in a tongue-in-cheek way. This may have caused some viewers to question his assertion that he had not used either the words cunt or mong in an intentionally offensive way.

However we considered that the degree of offensiveness was reduced to some extent by many in the audience knowing Ricky Gervais' reputation for acerbic, controversial and challenging humour, and understanding that Ricky Gervais was likely to have been being knowingly disingenuous when he said the word mong was no longer linked with Down's Syndrome, and that the word cunt was now a term of endearment . Ofcom considered that the material would not have exceeded viewers' expectations for Ricky Gervais's type of humour.

Ofcom also had regard to the fact that Channel 4 is a public service broadcaster with a unique statutory remit to broadcast a range of high quality and diverse programming, and this may include programming that is provocative and controversial.

We noted that the programme began at 22:35, more than an hour and a half after the watershed, and that therefore most viewers of the programme would have been expecting stronger and more challenging content.

We also took into account that Channel 4 brought the challenging nature of the content to the attention of viewers with a warning at the start of the programme, which stated that it would contain strong language and adult humour .

We therefore concluded that several aspects of this content had the potential to cause considerable offence. However, on balance, this potential offence was justified by the context of this provocative comedy routine challenging the evolution of words, as broadcast with a warning as part of a late night comedy show on Channel 4. Channel 4 therefore applied generally accepted standards, and the broadcast of Ricky Gervais' comments was not in breach of Rule 2.3.

Ofcom takes this opportunity to remind all broadcasters that its recent 2010 research shows that the word mong has the potential to be highly offensive to many people, and so broadcasters should take great care with its use.

This Morning
ITV1, 7 October 2011, 10:45

This Morning is ITV1's weekday morning topical magazine programme which is hosted on a Friday by presenters Eamonn Holmes and Ruth Langsford.

This programme featured an item at 10:45 about a survey which reported that one third of Britons do not know the location of the three largest cities in the UK. Studio guest Jonathan Wilkes said he believed that he was in that third because he thought Manchester was one of the three. Eamonn Holmes responded incredulously:

what are you ... retarded? Don't be stupid, don't be stupid ... if you follow football, which you do, you know from the league tables ... where everywhere is.

Several viewers contacted the broadcaster directly to complain about Eamonn Holmes using the word retarded and, following the commercial break, he made the following on screen apology at 11:10:

Very good to see you again. Sorry to the three or four of you who have got in touch this morning because I have used the word retarded during the newspaper review – and you seem to take it personally...or you seem to say that I am insulting all sorts of people who have all sorts of conditions. I used it as a term...that someone...so, I don't know what you would use instead of the word – but obviously I would never want to do that – cause any sort of offence for that and having done so much work – particularly, there is this the man who has an autistic child, who says that somehow I have insulted his child, so I really hope it hasn't. I certainly wouldn't use it in that context but sorry if that caused you offence sir. I'll get your name and address in a moment and reply to you.

A complainant alerted Ofcom to the use of the word retarded . Ofcom considered the word was capable of causing offence and raised potential issues under Rule 2.3 of the Code, which states:

In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context.

ITV accepted that the word retarded did have the potential to cause offence. However, in the context of a spontaneous reaction made during a live discussion programme, the Licensee did not consider it exceeded generally accepted standards. Insofar as any offence was caused, ITV said it took rapid and effective steps to mitigate that offence by broadcasting a prompt apology. ITV considered the apology was appropriately worded to convey Eamonn Holmes', and the Licensee's, sincere regret for any offence caused.

Ofcom Decision: Resolved

Ofcom took account of the fact that This Morning is a live programme, and the comment made by Eamonn Holmes was clearly unscripted and made in response to a spontaneous situation. However, on balance and in the circumstances of this particular case, Ofcom considered that this was insufficient context to justify the offence that the word retarded was capable of causing to the audience.

Ofcom, however, took account of Eamonn Holmes' broadcast of a personal apology as soon as practicable after the subsequent commercial break, in which he stated that he had not intended to cause any offence. On balance, Ofcom considered this case to be resolved.

Bluebird Live
Sport XXX Girls (Channel 967), 28/29 August 2011, 23:45 to 00:45
Sport XXX Girls (Channel 967), 29 August 2011, 02:45 to 03:45
Sport XXX Girls (Channel 967), 3/4 September 2011, 23:45 to 00:45

Bluebird 40+
Northern Birds (Channel 954), 29 August 2011, 22:50 to 23:25

Bluebird Live and Bluebird 40+ are segments of interactive adult chat broadcast on free to air babe channels Sport XXX Girls and Northern Birds.

The licences for Sport XXX Girls and Northern Birds are held by Satellite Entertainment Limited (SEL).

A complaint alerted Ofcom to the level of sexual content in the material listed above. Ofcom therefore viewed this content and found:

1. Bluebird Live, Sport XXX Girls, 28/29 August 2011, 23:45 to 00:45 The female presenter was wearing a light blue one piece costume which consisted only of a thin strip of fabric between her legs which covered her vagina but resulted in her outer genital area being exposed. During the broadcast she lay with her legs wide open to camera gently thrusting her hips forward and stroking her upper inner thigh area. Given that this shot of the presenter with her legs wide open remained onscreen for the majority of this broadcast, the material was both invasive and prolonged.

SEL denied that the presenter's outer genital area was exposed, saying that it was covered by her garment. The Licensee also denied that these were prolonged or intrusive images, and asked for further clarification about what Ofcom considered to be invasive about the material.

2. Bluebird Live, Sport XXX Girls, 29 August 2011, 02:45 to 03:45 The presenter wore only a pink lace thong and was filmed with a hand held camera. Throughout the broadcast there were various prolonged and intrusive images filmed, extremely close up and for a duration of time, from directly behind the presenter's buttocks and also between her wide open legs. While being filmed in these positions she thrust her buttocks and hips towards the camera revealing her outer genital area and anal detail.

SEL said there were no prolonged images in the sequence with the potential to cause offence, and asked for Ofcom?s clarification as to how the images were intrusive and prolonged.

3. Bluebird Live, Sport XXX Girls, 3/4 September 2011, 23:45 to 00:45 The female presenter was wearing only a thin white and red thong. For the majority of this broadcast she was positioned on all fours with her buttocks to camera. While in this position her anal and outer genital areas were clearly visible. Given these shots had a duration of several minutes and were in sufficient close up to show anal and outer genital detail they were both prolonged and intrusive.

The Licensee said that the presenter?s garment was clearly covering her genitals , and that for most of the sequence the model was on her stomach with the camera focussing on her face; therefore, SEL failed to see how these images could be in breach of the BCAP Code.

4. Bluebird 40+, Northern Birds, 29 August 2011, 22:50 to 23:25 The presenter wore a black leather look thong composed of a thin strip of fabric only covering her vagina and so revealing her outer genital area. During the broadcast she lay on her back with her legs wide open to camera, and while in this position she gently thrust her hips backwards and forwards. Some particularly intrusive images followed, filmed at close range, when her outer genital area was visible for a prolonged period. In this position she massaged and stroked around her outer genital area.

Ofcom considered this material raised issues warranting investigation under Rule 4.2 of the BCAP Code, which states that:

• Advertisements must not cause serious or widespread offence against generally accepted moral, social or cultural standards.

Ofcom Decision: Breach of Rule 4.2 of the BCAP Code

Ofcom concluded that relevant scheduling restrictions were not applied so as to ensure that the material which was broadcast was not capable of causing serious or widespread offence against generally accepted moral, social or cultural standards. Specifically, this material should not have been broadcast within the context of „adult chat? advertising content that was freely available without mandatory restricted access.

Therefore Ofcom found this material in breach of Rule 4.2 of the BCAP Code.

Ofcom has recently imposed a sanction on the Licensee for a number of serious and repeated breaches of the BCAP Code3 , which led to the imposition of a financial penalty totalling £130,000. These present contraventions of the BCAP Code by SEL are another example of very poor compliance by the Licensee. In the circumstances, Ofcom is considering what further regulatory action is appropriate.

Ofcom has revoked the licence for Press TV to broadcast to the UK.

Ofcom cites The Communications Act 2003. Under section 362(2) of the Act, the provider of the service for the purposes of holding a licence is the person with general control over which programmes are comprised in the service.

Ofcom explained:

In the course of correspondence and meetings with Ofcom, statements made by Press TV Limited about the operation of the Licensed Service failed to satisfy Ofcom that the Licensee had general control over which programmes and other services were comprised in the Licensed Service. Ofcom therefore concluded that Press TV Limited had ceased to provide the Licensed Service in accordance with section 362(2) of the Act and that, accordingly, it was appropriate to revoke the Licence.

The Licence was revoked on 20 January 2012.

ATVOD welcomes Ofcom appeal decision that it was correct to determine that three Viacom companies were responsible for VOD services featuring their content on the Virgin Media platform

Appeals by Viacom companies Nickelodeon UK Limited, The Paramount Partnership and MTV Networks Europe against ATVOD determinations that they respectively hold regulatory responsibility for the Nickelodeon, Comedy Central and MTV video on demand content on the Virgin Media platform, have today not been upheld by Ofcom.

The decision means that the three Viacom companies rather than Virgin Media are responsible for ensuring that the services comprising their video on demand programmes on the Virgin Media platform comply with the statutory rules which apply to On Demand Programme Services.

The decision turned on the definition of editorial responsibility as defined in section 368A of the Communications Act 2003, which states that a person has editorial responsibility for a service if that person has general control over what programmes are included in the service and over the manner in which those programmes are organised within the service.

Welcoming the decision, ATVOD Chief Executive Pete Johnson said:

This is a complex area and the appeal system is a vital part of the process, giving service providers, in particular, greater clarity over where regulatory responsibility lies.