Sanction 113 (19) Trace UK World Ltd Sanction: Decision by Ofcom Sanction: to be imposed on Trace UK World Ltd For material broadcast on Starz on 11 March 2018 at 14:301. Ofcom’s Sanction Decision against: Trace UK World Ltd (“Trace” or “the Licensee”) in respect of its service Starz (Ofcom TLCS licence TLCS001648BA/4). For: Breaches at the time the licence for Starz was held by CSC Media Group Limited (“CSC”)2 of the BCAP Code: The UK Code of Broadcast Advertising (“the BCAP Code”) in respect of: Rule 1.2: “Advertisements must be prepared with a sense of responsibility to the audience and to society”. Rule 4.2: “Advertisements must not cause serious or widespread offence against generally accepted moral, social or cultural standards”. Rule 4.8: “Advertisements must not condone or encourage harmful discriminatory behaviour or treatment. Advertisements must not prejudice respect for human dignity”. Decision: To direct the Licensee to broadcast a statement of Ofcom’s findings on a date and in a form to be determined by Ofcom. 1 As detailed in Broadcast and On Demand Bulletin 363 (https://www.ofcom.org.uk/__data/assets/pdf_file/0020/122960/issue-363-broadcast-on-demand- bulletin.pdf), 8 October 2018 (“the Breach Decision”). 2 CSC, a subsidiary of Columbia Pictures Corporation Ltd (“Columbia Pictures”) held the licence for Starz until 1 April 2018, at which time, following approval by Ofcom, the licence was transferred to Colombia Pictures. The latter held the licence until 14 December 2018, when following approval by Ofcom, the licence for Starz was transferred to Trace, the current licensee. 1 Sanction 113 (19) Trace UK World Ltd Executive Summary 1. Starz is a UK satellite television channel which broadcasts music videos alongside texts and photographs submitted by viewers. At the time of broadcast i.e. 11 March 2018, the licence for Starz was held by CSC Media Group Limited (“CSC”), which is a subsidiary of Columbia Pictures Corporation Ltd (“Columbia Pictures”) (part of the Sony Pictures Entertainment Group). The licence was then held by Columbia Pictures from 1 April to 14 December 2018. On that date, following approval by Ofcom, the licence for Starz was transferred to Trace. 2. On 11 March 2018 at 14:30 Starz broadcast an image submitted by a viewer alongside a music video. It depicted a cartoon caricature of a Jewish person which conformed to racist stereotypes. In Ofcom’s view, the image, which could be found on various neo-Nazi websites, was likely to have been interpreted by viewers as being highly offensive and antisemitic. Over the next 51 minutes, the image was repeatedly reshown in rotation with photographs submitted by other viewers. The Breach Decision 3. In Ofcom’s Decision (“the Breach Decision”) published on 8 October 2018 in issue 363 of the Broadcast and On Demand Bulletin3, Ofcom’s Executive found that the material in the Programme breached Rules 1.2, 4.2 and 4.8 of the UK Code of Broadcast Advertising (the “BCAP Code”)4. Columbia Pictures was the licensee at the time of publication of the Breach Decision. 4. The Breach Decision set out the broadcast material that was in breach, along with reasoning as to why the material had breached each rule. 5. Ofcom put Columbia Pictures on notice in the Breach Decision that it considered these breaches to be serious, and that it would consider them for the imposition of a statutory sanction. The Sanction Decision 6. In accordance with Ofcom’s Procedures for the consideration of statutory sanctions in breaches of broadcast licences (“the Sanctions Procedures”)5, Ofcom considered whether the BCAP Code breaches were serious, deliberate, repeated or reckless so as to warrant the imposition of a sanction on Columbia Pictures. It has reached the Decision that a sanction is merited in this case since the breaches are serious for the reasons set out in paragraphs 38 to 49 below. 7. This paper sets out Ofcom’s Decision on the type and level of sanction to be imposed on the Licensee, taking into account all the relevant material in this case and Ofcom’s Penalty Guidelines (“the Penalty Guidelines”)6. 8. Ofcom’s Decision is that the Licensee should be directed to broadcast a statement of Ofcom’s findings on a date and in a form to be determined by Ofcom. 3 See footnote 1. 4 The BCAP Code, The UK Code of Broadcast Advertising (https://www.asa.org.uk/uploads/assets/uploaded/526914b7-de7f-4cf6-86afe08684d22885.pdf) 5 See: Procedures for the consideration of statutory sanctions in breaches of broadcast licences (https://www.ofcom.org.uk/__data/assets/pdf_file/0030/71967/Procedures_for_consideration.pdf). 6 See: the Penalty Guidelines (https://www.ofcom.org.uk/about-ofcom/policies-and-guidelines/penalty- guidelines). 2 Sanction 113 (19) Trace UK World Ltd Legal Framework Communications Act 2003 9. Ofcom’s principal duty, set out in Section 3(1) of the Communications Act 2003 (“the Act”), is to further the interests of citizens in relation to communications matters and the interests of consumers in relevant markets. In carrying out its functions, Ofcom is required to secure a number of other matters. These include the application, in the case of all television and radio services, of standards that provide adequate protection to members of the public from the inclusion of offensive and harmful material in such services (section 3(2)(e)). 10. Ofcom has a specific duty under section 319 of the Act to set such standards for the content of programmes in television and radio services as appears to it best calculated to secure the standards objectives set out in section 319(2). These objectives include that that “the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented” (section 319(2)(h)). This requirement is reflected broadly in Section One, and specifically in Section Four, of the BCAP Code. 11. In performing its duties, Ofcom is required to have regard to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed, and any other principles representing best regulatory practice (section 3(3)); and, where relevant, to have regard to a number of other considerations including the need to secure that the application in the case of television and radio services of standards relating to harm and offence is in the manner that best guarantees an appropriate level of freedom of expression (section 3(4)(g)). Human Rights Act 1998 12. Under section 6 of the Human Rights Act 1998, Ofcom (as a public authority) has a duty to ensure that it does not act in a way which is incompatible with the European Convention on Human Rights (“the Convention”). In particular, in the context of this case, Ofcom has taken account of the related rights under Article 9 and Article 10 of the convention. 13. Article 9 of the Convention provides for the right to freedom of thought, conscience and religion. This Article makes clear that freedom to “manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interest of public society, for the protection of public order, health or morals, or for the protection of rights and freedoms of others”. 14. Article 10 of the Convention provides for the right to freedom of expression. Applied to broadcasting, this right encompasses the broadcaster’s freedom to impart and the audience’s freedom to receive information and ideas without interference by public authority and regardless of frontiers (Article 10(1)). The exercise of these freedoms may be subject only to conditions and restrictions which are “prescribed in law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or maintaining the authority and impartiality of the judiciary” (Article 10(2)). 15. Ofcom must exercise its duties in light of these rights and not interfere with the exercise of these freedoms in broadcast services unless it is satisfied that the restrictions it seeks to apply are required by law and necessary to achieve a legitimate aim. Equality Act 2010 16. Under Section 149 of the Equality Act 2010, in the exercise of its functions, Ofcom must also have due regard to the need to eliminate unlawful discrimination, to advance equality of 3 Sanction 113 (19) Trace UK World Ltd opportunity and to foster good relations between persons who share a relevant protected characteristic, such as race or religion, and persons who do not share it. The UK Code of Broadcast Advertising 17. Standards set by Ofcom in accordance with section 319(2)(h) of the Act relating to advertising are set out in the BCAP Code. The BCAP Code is drawn up and published by the Broadcast Committee of Advertising Practice Limited (“BCAP”) and enforced by the Advertising Standards Authority (Broadcast) Limited (ASA(B)), pursuant to contracting out arrangements entered into between Ofcom and these bodies7. 18. However, Ofcom remains responsible for enforcing the rules for certain types of advertising, including long-form Participation TV advertising8. Although Starz is an editorial service, the text and photo elements of the channel are classified as ‘Participation TV’ by Ofcom because these elements are predicated on the use of premium rate telephony services – the channel invites viewers to pay to contact it with a view to selecting videos and/or getting their messages and photographs on screen.