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Programme Complaints Bulletin Standards & Fairness Programme complaints bulletin Standards & Fairness and Privacy Issue number 16 23 August 2004 Ofcom programme complaints bulletin 23 August 2004 Contents Introduction 2 Standards cases Sanctions 3 Breaches 7 Resolved 11 Not in Breach/Outside Remit 14 Fairness and Privacy cases Upheld/Upheld in Part 21 Not Upheld 22 1 Ofcom programme complaints bulletin 23 August 2004 Introduction Some of the following complaints were received by the legacy regulators prior to the commencement of Ofcom. Under the terms of the Communications Act 2003, they became the responsibility of Ofcom on 29 December 2003. The Communications Act allows for the Codes of the legacy regulators to remain in force until such time as Ofcom has developed its own Codes. Ofcom is currently consulting on its new draft Code. This can be found at http://www.ofcom.org.uk/consultations/current/broadcasting_code/ The new Code will be published at the beginning of 2005. The Codes currently in force for programming are: • Advertising and Sponsorship Code (Radio Authority) • News & Current Affairs Code and Programme Code (Radio Authority) • Code on Standards (Broadcasting Standards Commission) • Code on Fairness and Privacy (Broadcasting Standards Commission) • Programme Code (Independent Television Commission) • Code of Programme Sponsorship (Independent Television Commission) The cases have been considered against the above Codes. • Some programmes will have breached the relevant code or been found to be unfair or to have infringed privacy without good reason (Upheld). • Others will not have breached the code or been found to be unfair or to have infringed privacy without good reason (Not upheld). • However, there may be occasions where Ofcom recognises that a broadcaster has taken appropriate action in response to an issue (for instance, the broadcaster may recognise that an error has occurred and taken responsible steps to rectify it). But even when such action has been taken, Ofcom may still consider it appropriate to find that the programme breached the Code due to the seriousness of the issues involved. The layout of the report reflects these distinctions. 2 Ofcom programme complaints bulletin 23 August 2004 Standards cases Sanctions This decision was published on 27 July 2004 Xplicit XXX 8 April, 20:30 Introduction Digital Television Production Company Limited (‘DTPC’) is licensed by Ofcom to run the satellite service ‘XplicitXXX’, formerly Pout/Pout Uncut. It transmits adult material which, at the time of the offence, was encrypted and available only to subscribers after 22.00. On 8 April 2004 from 20:30 to 22:00, DTPC broadcast in a free to air slot, a repeating six minute loop of material promoting its encrypted transmissions (‘freeview’). The promotional material was itself sexually explicit. It showed semi- and near nudity in explicitly sexual situations; showed simulations of intercourse, oral sex, masturbation and orgasm; featured captions with explicit sexual language and captions promoting amongst other available films one entitled Anal Cream Pie. XplicitXXX had admitted and Ofcom had recorded the following breaches of the Programme Code: sections 1.1 (the General Requirement for Taste and Decency), 1.2 (Family Viewing and the Watershed) and 1.6 (Sex and Nudity). The matter was also referred to the Content Sanctions Committee (‘the Committee’) for consideration of a statutory sanction. The Committee heard representations from DTPC before deciding whether to impose a sanction. Decision The Committee viewed the Code breaches as serious. Its greatest concern was the risk that a child could see such material. The material was also unsuitable for transmission in the period after the watershed (21.00). The material was not borderline, but very clearly breached the Code. Ofcom has a statutory duty to protect the young and apply overall standards with regard to harm and offence. The Committee noted DTPC’s representations that the Code breaches were inadvertent rather than deliberate. On that basis, the Committee concluded that the error was the result of management failure to institute adequate training and operational procedures necessary to avoid the risks of a child viewing this material and effectively to review transmissions as they were made in order to detect and immediately correct any mistakes. This was because, in the Committee’s view, DTPC had adopted an approach to its broadcast material that was excessively complacent, unfocused and insufficiently protective of the interests of children. Any broadcaster licensed to transmit adult encrypted material which is restricted to subscribers but has free to air 3 Ofcom programme complaints bulletin 23 August 2004 promotions, has an obligation to ensure that no sexually explicit material is shown even inadvertently in free to air promotions. Any such infringement is not to be tolerated. The Committee took into account as aggravating the seriousness of the present Code breaches previous, recent, comparable infringements by DTPC in relation to XplicitXXX, and the fact that DTPC had been given a previous written warning from Ofcom that any further recurrence might result in a statutory sanction. The Committee took into account as mitigating the breaches, DTPC’s frank admission that it had breached the Code and the contrition it expressed; the efforts it had made since the matter was brought to its attention to prevent any further recurrence, particularly the appointment of a channel manager with responsibility for compliance. The Committee nevertheless noted that there appeared to be a continuing lack of full formal compliance training and operational procedures to prevent or detect and correct such mistakes. The Committee also noted that Ofcom had received no complaint from any member of the public about the ‘freeview’ broadcast on the 8 April 2004. Ofcom became aware of the issue through an informal approach from a competitor of DTPC. The Committee determined that the Code breaches were so serious that a sanction by way of a financial penalty was necessary. The applicable statutory maximum was a fine of £250,000, payable to Ofcom for forwarding to The Treasury. The Committee gave serious consideration to a fine in six figures which it considered may become the norm for such serious Code breaches. However, it took account of DTPC’s representations about its financial position and the compliance steps it had taken and concluded that on this occasion, a six figure sum would be a disproportionate penalty. It concluded that in view of the seriousness of the infringement and taking into account all the circumstances, an appropriate fine was £50,000. 4 Ofcom programme complaints bulletin 23 August 2004 This decision was published on 29 July 2004 Galaxy 102 16 October 2003, 08:15 Introduction A listener complained about an item broadcast by Galaxy 102 which was recorded from the previous day’s live show and repeated at breakfast time (08:15). The pre-recorded item was a phone call to the station in which a male caller advocated physical harm to women, saying repeatedly that he slapped his wife at least once a week and recommended a regular slap to keep women in line. The presenters whilst not condoning this themselves, spoke (albeit not seriously) of wishing to inflict violence on the caller and both the presenters and the caller used offensive language. A 12-year-old girl was then allowed on air live to comment on what she had heard and herself used offensive language (“fucking wanker”). Galaxy describes itself as an ‘edgy’ station with an established local target audience of 15-34 year olds but also with a significant number of children (4-14 year olds) listening to the station overall. Galaxy was found to have breached the following sections of the Code in failing to: maintain the general requirement for taste and decency (contrary to section 1.1), protect younger listeners at breakfast time (contrary to section 1.2), avoid offensive language being transmitted when a significant number of children were likely to be listening (contrary to section 1.3); and seeking to elicit views on air from a child on matters likely to be beyond her judgement (contrary to section 3.5). The matter was also referred to the Content Sanctions Committee (‘the Committee’) for consideration of a statutory sanction. The Committee heard representations from Galaxy before deciding whether to impose a sanction. Decision Galaxy admitted it had breached the code and apologised for the failures in its editorial control which had led to the situation, but vigorously defended its distinctive position within its (local) market dealing with a wide range of hard and soft issues. However, the Committee noted that other discussion topics which the station claimed to cover were not as inherently ‘dark’ or difficult as the topic of domestic violence, arising in this case. Whilst therefore acknowledging Galaxy’s views about the particular nature of its station, Ofcom considered that Galaxy’s decision to repeat the item early in the morning, when children were very likely to be listening, demonstrated a serious failure in its compliance procedures and a lack of editorial judgment. 5 Ofcom programme complaints bulletin 23 August 2004 The Committee considered that the station, in viewing itself in the way it did, had paid insufficient attention to its 4–14-year-old audience. It had taken a deliberate decision to broadcast a recording of the material at an inappropriate time in the morning when it should have been aware it was likely that a significant number of children would be listening. The broadcasting of controversial and emotive subjects carried with it responsibilities. Galaxy had broadcast this material without having the necessary safeguards in place which would be expected around such a broadcast and without building into its compliance procedures and editorial judgements, due recognition of its child audience. In light of the above, Ofcom decided that Galaxy was in breach of the Code and imposed a financial penalty of £2500.
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