Ofcom Watch

Can't Pay? We'll Take It Away!
Channel 5, 28 September 2016, 21:00

Can't Pay? We'll Take It Away! is an observational documentary series that follows the work of High Court Enforcement Agents ( HCEAs ).

Ofcom received three complaints about the frequent use of offensive language broadcast just after the watershed which, the complainants considered was not appropriate.

The pre-programme information provided by the continuity announcer referred to: 206highly offensive language in Can't Pay? We'll Take It Away! Then, following the sponsorship credit, a warning was shown with a voiceover stating: Be prepared for scenes of intense aggression and HIGHLY [emphasis in the original] offensive language from the very start and throughout, which may distress some viewers .

The first story in this episode, broadcast from 21:02, featured two HCEAs attempting to recover £5,000 from a man who requested that they should leave his property. From approximately 21:04, and for about three minutes, 15 instances of the most offensive language were used, which consisted of 14 instances of the word fuck (and variations of it) and one instance of the word cunt .

Ofcom considered Rule 1.6 of the Code:

The transmission to more adult material must not be unduly abrupt at the watershed206For television, the strongest material should appear later in the schedule.

Channel 5 explained that its usual approach to ensure compliance with Rule 1.6 was that there should be no offensive language broadcast in the first seven minutes of a programme broadcast at 21:00 to ensure that the transition to more adult material after the watershed was not too abrupt.

However, occasionally, and with regard to this particular episode, the Licensee explained that the editorial requirements of the programme meant that this position was varied. It said that it had permitted the offensive language on this occasion because without it, the severity and volatility of the situation and the difficulties experienced by the HCEAs in carrying out their duties would have been unclear and incomprehensible to viewers. Channel 5 said that its decision to include the most offensive language soon after the watershed was not taken lightly and that it had been referred up to the highest levels of Channel 5 .

Ofcom Decision: Breach of Rule 1.6

We acknowledged that there was a clear editorial context for the inclusion of the offensive language in the programme 203 to illustrate the type of challenging behaviour encountered by HCEAs in the course of their work. However, in Ofcom's view, this in itself did not provide sufficient editorial justification for this material to be broadcast at the very beginning of the programme soon after the watershed. We took the view that, even taking account of the editorial context and the strongly worded and voiced warning, it was still unlikely that viewers would have expected the frequent use of the most offensive language in an aggressive and confrontational manner at such a short time after the watershed on a public service channel like Channel 5.

We concluded that the programme was in breach of Rule 1.6.

On 1 January 2016, Video on Demand censor ATVOD was sacked and Ofcom became the sole regulator for on-demand programme services ( ODPS ) under Part 4A of the Communications Act 2003 (the Act ).

In this document, we are consulting on a new regulatory fees regime under section 368NA of the Act, to apply from the 2017/18 financial year onwards. Our preferred proposal is to adopt a fees structure that shares the costs of regulating ODPS only between the largest providers.

We have also provided an estimate of the 2017/18 fee that would be sufficient to meet, but not exceed, the likely cost of Ofcom carrying out the relevant functions in the financial year 2017/18.

Ofcom sets out what VoD companies had to pay under the year of ATVOD:

• (a) ATVOD's estimated costs for the year were just over £487,000 and the fees collected were just over £488,000.
• (b) The 40 largest ODPS providers each paid over £5,000 and accounted for over 93% of fees.
• (c) ATVOD differentiated between those in the largest group, with the largest Super A providers paying £10,893 each for single outlet services and £14,135 for multiple outlet services (with a group cap available where there were multiple providers in one corporate group). A Rate providers paid £5,010 for single outlet services and £6,502 for multiple outlet services.
• (d) None of the remaining 77 providers (the long tail ) paid more than £815, and 40 of these paid £204 or less. These providers accounted, in total, for under 7% of fees.

By contrast, Ofcom's estimate of estimated costs is £114,000 and this will be raised from Video on Demand companies as follows:

• Companies with total turnover greater than 50 million: £4146
• Companies with total turnover 10 to 50 million: £2073
• Companies with total turnover less than 10 million: no charge

Ofcom noted that a proportionally smaller charge for the small companies may not be cost effective to collect and may discourage companies from registering for censorship either by illegal avoidance or by moving offshore.

A consultation on this preferred option and several others is open until 29th March 2017.

The BBC is refusing an order to pay £9 million a year to the TV censor Ofcom, in a behind-the-scenes row over the cost of the corporation's new censorship regime.

Ofcom, which will take on responsibility for censoring the BBC in April, is locked in a private battle after warning BBC executives that it wants to appoint double the number of staff the BBC Trust, the broadcaster's current ruling body, currently employs to censor the broadcaster.

The move will add more than £5 million to the regulatory bill currently footed by the licence fee payer, roughly equivalent to what the BBC spends on a six-part drama series .

The corporation is understood to have appealed to Karen Bradley, the culture secretary, to force Ofcom to reduce its fees. Sue Owen, permanent secretary at the DCMS, is understood to have written to Sharon White, the chief executive of Ofcom, calling on her to cut the planned fees, but White is said to have argued that the proposed charges are 'reasonable'.

The corporation is said to be particularly annoyed that Ofcom has demanded £6.5 million for the past financial year, which covers a period before the broadcaster assumes its full regulatory duties.

Ofcom insists that it will have a more wide-ranging role than the Trust, and will have to hold the BBC to account on new political correctness issues such as diversity targets.

Tell Me Another
Talking Pictures TV, 24 August 2016, 19:00

Talking Pictures TV is an entertainment channel broadcasting classic films and archive programmes.

Tell Me Another was a talk show originally broadcast between 1976 and 1979 in which stars of the 1960s and 70s recalled personal anecdotes of their experiences in show business.

A complainant alerted Ofcom to the use of the word coon , which they found offensive.

The word featured in an anecdote told by the comedian and singer Joan Turner when describing her first professional appearance on stage at the age of 14 in a theatre in east London in 1937. She described how the dancing girls in the troupe used to tan their legs: in those days the girls didn't wear tights...they used to make their legs up with what they call 'wet white', but it was actually brown . She told how, because her legs were cold and very pale, she borrowed wet white from a dancer and used it to darken her legs and face. Her booking agent however responded by saying, Take that bloody stuff off. You look like a bloody chocolate coloured coon... put that on again, you're not coming on! .

Ofcom considered Rules:

• Rule 1.14: The most offensive language must not be broadcast before the watershed .

• Rule 2.3: In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context... Such material may include, but is not limited to...discriminatory treatment or language (for example on the grounds of...race) .

Talking Pictures TV said that the word complained about occurred in an episode originally broadcast in ITV regions at 18:30 in 1978 and later. It said while we don't wish to defend the use of the term 'coon', we recognise that this was part of the lexicon of the era when the series was first broadcast .

The Licensee pointed out that the word coon was included for the first time only in Ofcom research on offensive language published on 30 September 20161 - a date after the episode of Tell Me Another was broadcast. Previous Ofcom research, including that of 2012 did not assess the word coon .

Talking Pictures said as a result of this case it had stopped broadcasts of this particular episode of Tell Me Another, and also reviewed the whole series against Ofcom's 2016 offensive language research, to ensure it contained no language that raised concerns. It said it had also increased the frequency of warnings before archive movies and TV shows to forewarn viewers of outdated language.

Ofcom Decision: Breach of Rules 1.14 and 2.3

In our view it was not the interviewee's intention to be discriminatory towards an ethnic minority or to cause offence. However, we considered that the use of the phrase bloody chocolate coloured coon clearly conveyed a negative reaction by the booking agent to Ms Turner's skin colour. Even though the phrase was not directed at anyone from an ethnic minority or used in an aggressive manner, it also would have been likely to have been seen by viewers as conveying a discriminatory and racist attitude on the part of the booking agent. These factors, in our view, would have been likely to increase the potential level of offence and on balance made the use of these words inconsistent with viewers' expectations for this programme on this channel at this time, and particularly for any who may have come across this material unawares.

We acknowledged that the language was broadcast in the context of a comedy entertainment programme made in the 1970s which contained what was intended to be a comic anecdote about comments made in 1937. However, this offensive language (as acknowledged by the Licensee) was broadcast to viewers with no warning beforehand alerting them to potentially offensive language, and without any editorial voice, commentary or other context to mitigate sufficiently the potential offence. We did not consider the fact that the programme had been made many years previously or that the anecdote referred to an earlier era, when attitudes were different, provided sufficient context in this case. In particular, we took into account that this programme was broadcast before the watershed with a potential for children to be in the viewing audience, who would not necessarily have been aware of historical differences in attitudes to offensive language.

Given all these factors, in this case we considered the word coon was an example of the most offensive language broadcast before the watershed in breach of Rule 1.14.

Fox showed a censored opening episode of season 7 of The Walking Dead at 9pm. The episode showed Negan bludgeoning two popular characters to death. Fox carried the episode uncut on its on demand service and the original was indeed quite gruesome by TV standards.

Ofcom published its complain bulletin this week and commented that the episode was investigated and found not in breach of its censorship rules.

Ofcom didn't publish further details but the story was followed up by The Sun. An Ofcom spokesperson said:

Our investigation found that Fox took appropriate steps to edit the programme for the 9pm showing.

This is a well-established series, and we believe the scenes would have been consistent with many viewers' expectations.

However, Ofcom confirmed to The Sun that Fox has been warned about how future broadcasts are presented to fans.