Ofcom Broadcast and On Demand Bulletin Issue number 312 12 September 2016 1 Ofcom Broadcast and On Demand Bulletin 312 12 September 2016 Contents Introduction 3 Broadcast Standards cases In Breach I Spit on Your Grave Horror Channel, 28 March 2016, 22:45 5 Zing Jukebox Live Zing, 21 June 2016, 16:30 9 Desi Street TV99, 5 March 2016, 10:00 12 Not in Breach Love Island 30 June 2016, ITV2, 21:00 21 Broadcast Licence Conditions cases In Breach Retention and production of recordings Top Pop, 13 March 2016 27 Broadcast Fairness and Privacy cases Not Upheld Complaint by Ms G on behalf of her son (a minor) Channel 4 News, Channel 4, 6 January 2016 29 Complaint by Miss Lauren Reis The House of Hypochondriacs, Channel 4, 24 November 2015 43 Tables of cases Investigations Not in Breach 75 Complaints assessed, not investigated 76 Complaints outside of remit 85 Investigations List 87 2 Ofcom Broadcast and On Demand Bulletin 312 12 September 2016 Introduction Under the Communications Act 2003 (“the Act”), Ofcom has a duty to set standards for broadcast content as appear to it best calculated to secure the standards objectives1. Ofcom also has a duty to secure that every provider of a notifiable On Demand Programme Services (“ODPS”) complies with certain standards requirements as set out in the Act2. Ofcom must include these standards in a code, codes or rules. These are listed below. The Broadcast and On Demand Bulletin reports on the outcome of investigations into alleged breaches of those Ofcom codes and rules below, as well as licence conditions with which broadcasters regulated by Ofcom are required to comply. We also report on the outcome of ODPS sanctions referrals made by the ASA on the basis of their rules and guidance for advertising content on ODPS. These Codes, rules and guidance documents include: a) Ofcom’s Broadcasting Code (“the Code”) for content broadcast on television and radio services. b) the Code on the Scheduling of Television Advertising (“COSTA”) which contains rules on how much advertising and teleshopping may be scheduled in television programmes, how many breaks are allowed and when they may be taken. c) certain sections of the BCAP Code: the UK Code of Broadcast Advertising, which relate to those areas of the BCAP Code for which Ofcom retains regulatory responsibility for on television and radio services. These include: the prohibition on ‘political’ advertising; sponsorship and product placement on television (see Rules 9.13, 9.16 and 9.17 of the Code) and all commercial communications in radio programming (see Rules 10.6 to 10.8 of the Code); ‘participation TV’ advertising. This includes long-form advertising predicated on premium rate telephone services – most notably chat (including ‘adult’ chat), ‘psychic’ readings and dedicated quiz TV (Call TV quiz services). Ofcom is also responsible for regulating gambling, dating and ‘message board’ material where these are broadcast as advertising3. d) other licence conditions which broadcasters must comply with, such as requirements to pay fees and submit information which enables Ofcom to carry out its statutory duties. Further information can be found on Ofcom’s website for television and radio licences. e) Ofcom’s Statutory Rules and Non-Binding Guidance for Providers of On- Demand Programme Services for editorial content on ODPS. Ofcom considers sanctions in relation to advertising content on ODPS on referral by the Advertising Standards Authority (“ASA”), the co-regulator of ODPS for advertising or may do so as a concurrent regulator. Other codes and requirements 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 1 The relevant legislation is set out in detail in Annex 1 of the Code. 2 The relevant legislation can be found at Part 4A of the Act. 3 BCAP and ASA continue to regulate conventional teleshopping content and spot advertising for these types of services where it is permitted. Ofcom remains responsible for statutory sanctions in all advertising cases. 3 Ofcom Broadcast and On Demand Bulletin 312 12 September 2016 provide), the Code on Electronic Programme Guides, the Code on Listed Events, and the Cross Promotion Code. It is Ofcom’s policy to describe fully the content in television, radio and on demand content. Some of the language and descriptions used in Ofcom’s Broadcast and On Demand Bulletin may therefore cause offence. 4 Ofcom Broadcast and On Demand Bulletin 312 12 September 2016 Broadcast Standards cases In Breach I Spit on Your Grave Horror Channel, 28 March 2016, 22:45 Introduction Horror Channel is available on cable, satellite and digital terrestrial platforms. In addition to horror films, it broadcasts science fiction television series and teleshopping features. The licence for the service is held by CBS AMC Networks UK Channels Partnership (“AMC” or “the Licensee”). A complainant alerted Ofcom to a broadcast of the film I Spit on Your Grave – a 2010 remake of the 1978 film of the same name. Both films chronicle the sexual torture and subsequent revenge of the principal character Jennifer Hills. The complainant alleged that the version of the film broadcast on Horror Channel contained material that the British Board of Film Classification (“the BBFC”) had required to be cut before the film’s release in the UK. The BBFC guidelines1 list “material which makes sexual or sadistic violence look normal, appealing, or arousing” as an example of the type of content that may be cut as a condition of classification. The BBFC confirmed to Ofcom that, prior the film’s release in the UK, the BBFC had required 17 cuts to the version of the film submitted by the distributor before it awarded the film an ‘18’ certificate. The BBFC said that cuts were made “in order to remove potentially harmful material (in this case, shots of nudity that tend to eroticise sexual violence and shots of humiliation that tend to endorse sexual violence by encouraging viewer complicity in sexual humiliation and rape)”. At Ofcom’s request, the BBFC compared the BBFC’s 18-rated version and the version broadcast on Horror Channel. The BBFC confirmed that the version broadcast on Horror Channel was a combination of the distributor’s and the BBFC ‘18’ rated versions because some of the shots that it required to be cut for the film to have been awarded an ‘18’ certificate were still present either wholly or partially in the version broadcast on Horror Channel. Ofcom considered that the broadcast of this version of the film raised issues warranting investigation under the following rules of the Code. Rule 1.22: “No film refused classification by the British Board of Film Classification (BBFC) may be broadcast unless it has subsequently been classified or the BBFC has confirmed that it would not be rejected according to the standards currently operating. Also, no film cut as a condition of the classification by the BBFC may be transmitted in a version which includes the cut material unless: the BBFC has confirmed that the material was cut to allow the film to pass at a lower category; or 1 BBFC Guidelines can be viewed at: http://www.bbfc.co.uk/sites/default/files/attachments/BBFC%20Classification%20Guidelines% 202014_0.pdf 5 Ofcom Broadcast and On Demand Bulletin 312 12 September 2016 the BBFC has confirmed that the film would not be subject to compulsory cuts according to the standards currently operating.” Rule 2.1 “Generally accepted standards must be applied to 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.” We therefore sought comments from the Licensee as to how the broadcast of this film complied with these rules. Ofcom also notified the Licensee of the BBFC’s confirmation that the version broadcast contained some of the material that the BBFC had required to be cut for the film to receive an ‘18’ certificate. Response The Licensee said the BBFC confirmed that the ‘18’ classification of the uncut version of the film related to its UK “theatrical release”. With regard to Rule 1.22, AMC said that it had acquired the “theatrical release” version of the film from its distributor, which the Licensee “believe[d] complied with rule 1.22 prior to scheduling the film”. It said when initially viewing the content for compliance purposes, it had noted the presence of a “slate prior to the content indicating it as the MPAA (Motion Picture Association of America) R rated version of the film, where the MPAA R rating is defined as ‘Restricted’”. The Licensee confirmed that “no further cuts were made to this content as, following compliance viewing, AMC believed the content complied with the requirements of the Ofcom code”. AMC said its compliance process in this case included referring to the BBFC website to confirm whether the content had previously been awarded a certificate. It said that in the case of I Spit on Your Grave, the Licensee “found there to be two versions submitted to the BBFC and subsequently awarded an 18 certificate in 2010, one which had been cut by 43 seconds (duration [107 minutes 45 seconds]) and one passed as 18 uncut (duration [103 minutes 24 seconds])”. AMC said by contrast that the MPAA R rated “theatrical release” version of the film which had been broadcast had a duration of 101 minutes and 23 seconds, which was therefore shorter than the two versions described on the BBFC website. The Licensee said that having been made aware by Ofcom that it had broadcast a version that had not been certified by the BBFC, it submitted this version to the BBFC for classification.