O fcom Broadcast Bulletin Issue number 131 6 April 2009 1 Ofcom Broadcast Bulletin, Issue 131 6 April 2009 Contents Introduction 3 Standards cases Notice of Sanctions British Broadcasting Corporation (“BBC”) The Russell Brand Show, BBC Radio 2, 18 and 25 October 2008 4 Playboy One Various programmes transmitted on 26 September 2007 at 23:35; 27 September 2007 at 00:35, 01:05 and 02:00; 29 November 2007 at 23:00; 30 November 2007 at 00:35; and 9 December 2007 at 03:30 5 In Breach Bath FM and Brunel FM 10 - 12 January 2009 (inclusive) 6 Advertising scheduling Resolved Advertising minutage ITV2, 11 February 2009, 13:00 10 Fairness & Privacy cases There are no Fairness and Privacy cases in this bulletin. Other programmes not in breach/resolved 11 2 Ofcom Broadcast Bulletin, Issue 131 6 April 2009 Introduction The Broadcast Bulletin reports on the outcome of investigations into alleged breaches of those Ofcom codes which broadcasting licensees are required to comply. These include: a) Ofcom’s Broadcasting Code (“the Code”) which took effect on 25 July 2005 (with the exception of Rule 10.17 which came into effect on 1 July 2005). This Code is used to assess the compliance of all programmes broadcast on or after 25 July 2005. The Broadcasting Code can be found at http://www.ofcom.org.uk/tv/ifi/codes/bcode/ b) the Code on the Scheduling of Television Advertising (“COSTA”) which came into effect on 1 September 2008 and contains rules on how much advertising and teleshopping may be scheduled in programmes, how many breaks are allowed and when they may be taken. COSTA can be found at http://www.ofcom.org.uk/tv/ifi/codes/code_adv/tacode.pdf. c) other codes and requirements that may also apply to broadcasters, depending on their circumstances. These include the Code on Television Access Services (which sets out how much subtitling, signing and audio description relevant licensees must provide), the Code on Electronic Programme Guides, the Code on Listed Events, and the Cross Promotion Code. Links to all these codes can be found at http://www.ofcom.org.uk/tv/ifi/codes/ From time to time adjudications relating to advertising content may appear in the Bulletin in relation to areas of advertising regulation which remain with Ofcom (including the application of statutory sanctions by Ofcom). It is Ofcom policy to state the full language used on air by broadcasters who are the subject of a complaint where it is relevant to the case. Some of the language used in Ofcom Broadcast Bulletins may therefore cause offence. 3 Ofcom Broadcast Bulletin, Issue 131 6 April 2009 Standards cases Notice of Sanction British Broadcasting Corporation (“BBC”) The Russell Brand Show, BBC Radio 2, 18 and 25 October 2008 The Russell Brand Show, BBC Radio 2, 18 and 25 October 2008 On 3 April 2009, Ofcom published its decision to impose a statutory sanction on the BBC in respect of its service Radio 2. The sanction was for a breach of Rules 2.1, 2.3 and 8.1 of the Code which state: 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 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, offensive language…sex, sexual violence, humiliation, distress, violation of human dignity…Appropriate information should also be broadcast where it would assist in avoiding or minimising offence”; and Rule 8.1: “Any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted”. Ofcom found that these rules were breached in both programmes, referred to above, by the broadcast of particularly offensive material relating to the actor Andrew Sachs and his granddaughter, Georgina Baillie which seriously infringed their privacy. For the reasons set out in the adjudication Ofcom imposed a financial penalty of £80,000 for the breaches of the ‘standard’ concerning adequate protection of members of the public from unwarranted infringements of privacy set out in Rule 8.1 of the Code, and £70,000 for the breaches of Rules 2.1 and 2.3 of the Code (harm and offence). The monies are payable to HM Paymaster General. In addition Ofcom directed the BBC to broadcast a statement of Ofcom’s findings on its service Radio 2, on a specified occasion, at a time or times, and in a form to be determined by Ofcom.The full adjudication is available at: http://www2.ofcom.org.uk/tv/obb/ocsc_adjud/BBCRadio2TheRussellBrandShow.pdf The Chris Moyles Show, BBC Radio 1, 21 October 2008 In a separate investigation, Ofcom also found that The Chris Moyles Show on BBC Radio 1 on 21 October 2008 resulted in the unwarranted infringement of privacy of Andrew Sachs and Georgina Baillie and was a breach of the privacy ‘standard’ set out in Rule 8.1 of the Code. However it did not believe this breach of the Code was sufficiently serious to warrant consideration of a statutory sanction, given the BBC’s right to freedom of expression and the need for Ofcom to exercise its regulatory powers in a proportionate manner. On 3 April 2009 Ofcom published a finding in relation to the breach of Rule 8.1 of the Code (see page 36 of the full adjudication, referred to above). 4 Ofcom Broadcast Bulletin, Issue 131 6 April 2009 Notice of Sanction Playboy One Various programmes transmitted on 26 September 2007 at 23:35; 27 September 2007 at 00:35, 01:05 and 02:00; 29 November 2007 at 23:00; 30 November 2007 at 00:35; and 9 December 2007 at 03:30 On 2 April 2009 Ofcom published its decision to impose a statutory sanction on Playboy TV UK/Benelux Ltd in respect of its Playboy One service, for seriously and repeatedly failing to ensure compliance with the Code1. The service was found in breach of the following Code rules: Rule 1.24: ‘adult-sex’ material; Rule 2.1: generally accepted standards; and Rule 2.3: material that may cause offence must be justified by context. Ofcom found Playboy TV UK/Benelux Ltd in breach of these rules due to the following conduct: • Failure to protect viewers under the age of 18 by broadcasting sexually explicit content, that was unsuitable for broadcast on a free-to-air unencrypted channel (breach of Rule 1.24); and • Broadcasting sustained and explicit sex scenes and sexual activity and explicit sexual language contrary to viewer expectations for a free-to-air unencrypted channel (breaches of Rules 2.1 and 2.3). For the reasons set out in this adjudication Ofcom imposed a financial penalty of £22,500 on Playboy TV UK/Benelux Limited (payable to HM Paymaster General). The full adjudication is available at: http://msinterstg1/tv/obb/ocsc_adjud/playboytv.pdf 1 In September 2008 Playboy One ceased broadcasting. From 1 October 2008 the channel was re-branded as Paul Raymond TV and provided on an encrypted basis only in the adult section of the Sky EPG. 5 Ofcom Broadcast Bulletin, Issue 131 6 April 2009 In Breach Bath FM and Brunel FM 10 - 12 January 2009 (inclusive) Introduction Ofcom has a statutory duty to ensure that local analogue commercial radio has a local character and contains local content. In this context, local content and character (known as 'localness') means programmes consisting of local material, and programmes which are locally-made. In accordance with the requirements of the statute, Ofcom has published guidelines on how it believes localness should be satisfied. This is available at: www.ofcom.org.uk/radio/ifi/rbl/car/localness The requirement for localness placed upon each radio station is set out in a station’s published Format document. (Commercial radio Format documents include a description of the output which each licensee is required to provide, based on the promises they made in their original application to win the licence). The localness requirements will therefore vary from station to station. Ofcom guidelines on localness are not rules but provide a useful outline to the sort of considerations that may come into play if it becomes necessary to investigate the delivery of a station’s localness output in relation to its published Format. Many of these considerations are based on listener expectation. The level of detail in Formats has recently been reduced, following Ofcom’s Future of Radio consultation, but in simplifying Formats the aim has been to retain the character of service, without micro-managing output. Compliance with Formats is ensured by sample content checks and the maintenance of an online public file for each station. In December 2008, Ofcom issued ‘Yellow Card’ warnings to two local commercial radio stations owned by South West Radio Ltd. Bath FM and Brunel FM (Swindon), were not delivering the level of localness required by their Formats. For example, monitoring on Sunday 30 November 2008 revealed that there was no local news, no local information and no presenter on the air throughout the 24 hours of output on either station. Yellow Card warnings are used by Ofcom to express our concern that a station is straying from the Character of Service enshrined by the Format. If a broadcaster fails to bring its service into line, Ofcom will consider what further regulatory action may be necessary. The full Yellow Card reports for Bath FM and Brunel FM are available at: http://www.ofcom.org.uk/radio/ifi/yellowcards/ We said in these Yellow Card reports that the two stations would be monitored again, and if we found that the issues raised had been addressed satisfactorily, then the Yellow Cards would be lifted.