Ofcom Watch

I sent an email to Ofcom about the channel 5 broadcast last week, not to complain but to clarify if it was in breach of the guidelines. This was their reply:

Re Five: X Rated: The Films That Shocked Britain, 9.1.2004, 23:10

We received several complaints about this broadcast and therefore obtained a copy of the programme and watched it with the complainants comments in mind. I should say from the outset that we did not uphold the complaints. I’d like to explain why.

It is evident from the title and the subject matter that this documentary will not appeal to all tastes, and it is equally clear that some of the scenes, imagery and dialogue used will be of an adult nature. Our concern is that the treatment of all such material complies with our Code requirements, taking into account the type of programme, the target audience, the audience’s informed expectations and, most importantly, the time of transmission. Mindful of this, five scheduled this programme at 11.10pm – well after the watershed when material of an adult nature can be shown - and preceded it with a clear warning that the programme contained “nudity, scenes of a sexual nature and very strong language from the start”.

The programme did contain strong sexual scenes, but overall we don’t believe it breached our Programme Code. The material was scheduled appropriately and clearly signposted. More, the images of male arousal were understood in the context of a well-researched, serious documentary into sexually explicit cinema. The images were not used in a trivial or flippant manner which may have heightened the potential for offence being caused to the audience. Given the context described, we have no grounds to suppose that the material exceeded viewers’ informed expectations of this programme.

For your information the Programme Code makes no specific reference to ‘erections’, male or female arousal. We accept that ‘erections’ very rarely appear on television – a reflection, perhaps, of viewers’ sensitivity to this type of material. But there is no prohibition on their inclusion within programmes. Importantly, it is the treatment of such images that concerns us. Where it clearly exceeds viewers’ expectations we can intervene with the broadcaster. But we don’t believe this has occurred here.

I hope this letter goes some way to explaining our policies and how we arrive at them.

Ofcom

So there you have it ‘erections’ are allowed on any channel as long as the context is right, It would be interesting to see if penetration may also be allowed as some 18 certificate films contain penetration. I have the name of the person that replayed but wasn’t sure if I should post it here. This is a very interesting decision as channel 4 have edited these scenes like these out when showing some of these kind of films. It seems that indeed there has been a change in the code or at least a change in the way the code is being interpreted. I believe channel 4 could now show such films uncut. If this is the case Ofcom will have an even harder job keeping the prohibition of hardcore on adult channels on the basis of harm.

Thanks to John

The CSA (equivalent of OfCom) head and right wing politicians were trying to roll back French freedoms to watch hardcore on cable and satellite in July 2002, claiming that the need for digital decoders, and the late night broadcasting were not sufficient protection to let France meet its duty to protect minors under the Television Without Frontiers directive.

This prompted the European Commission to say that the would be censors were going too far. In a letter to France's CSA broadcasting regulator in October 2002 the EU Culture and Education Commissioner Viviane Reding said that she believed France was already fulfilling its responsibilities under the Television Without Borders legislation protecting minors.

Given that French systems do not all require credit cards to access, and are not all PIN protected, then this answers without any shadow of doubt one of OfCom's RIA section 39 questions, and demolishes the lynch pin of the status quo:

39. ... If it (the prohibition on R18) is not to be maintained then Ofcom seeks information on what technical protections or other protections are available which could ensure the protection of people under eighteen (and others who do not wish to access the material)?

In the view of the European Commissioner responsible for broadcasting and the administration of the Television Without Frontiers directive, current measures equivalent to those already in place in the UK (the requirements for a set top Sky/Cable box and late night broadcasting) allow France to fully meet its TWF directive obligations to protect minors, and would therefore allow the UK to meet its obligations.

Additional measures such as PIN protection and mandatory adult verification on subscription would provide additional protection, though OfCom should note that these would be in excess of those required by the TWF directive.

With the proliferation of live reality shows on mainstream television, strong language abounds. Predictably, the media regulator Ofcom is seeking to impose its views.

Conceding that viewers are used to strong swearwords soon after the watershed, Ofcom said it was unacceptable to combine such language with blasphemy.

The regulator has therefore decided it was happy for celebrity chef Gordon Ramsay to turn the air blue with "fuck and its derivatives" when tormenting his contestants on Hell's Kitchen, but "fucking Jesus" was too far. While fuck and Jesus are fine on their own, running them together causes particular offence.

Research indicates that the combination of strong swearing coupled directly with holy names is found highly offensive by believers. Like the broadcaster, we believe that the combination of a holy name and a strong expletive could not be justified in this context, Ofcom said, censuring ITV after complaints.

The key word, it seems, was fucking - because in the same set of rulings, Ofcom decided ITV did not breach its programme code when Tanya Turner, the bitchiest of the Footballers' Wives bitches, exclaimed "Jesus shitting Christ" after a love rival spiked her sunscreen with a skin irritant.

It may not be obvious to most viewers, but broadcasters have strict rules for expletives. On shows such as Hell's Kitchen, which include a substantial portion of live programming and participants with a propensity for profanity, there are people employed to count the fucks.

In its defence, ITV said its "compliance" procedures on Hell's Kitchen were strong. There was a warning at the beginning of the programme, and swearing in the early parts of each ITV1 programme were bleeped, in an attempt to ease in viewers to Ramsay's style. All live broadcasts were subject to a time delay.

Ramsay's robust manner was familiar from his other TV appearances and was the subject of media comment surrounding the programme. All of this is generally enough to satisfy TV regulators who know viewers are usually most offended by the unexpected.

But ITV said the phrase "fucking Jesus" was a mistake which had slipped through under high pressure and against very tight deadlines .
After the lapse, procedures were tightened.

Ofcom accepted most of ITV's defence but the use of a holy name linked to a strong expletive was in breach of the programme code .

Kitchens seem to bring out the worst in people: Ofcom recently criticised another chef, Tom Aikens, for using the phrase "Jesus fucking Christ" in a television show.

Aikens, who has won two Michelin stars, made the remark in an episode of BBC2's Trouble at the Top after coming under pressure as he tried to open a new restaurant.

Ofcom said the expression was one of the most offensive and one that broadcasters should use with caution .

Ofcom have fined a pornographic satellite television channel £50,000 for broadcasting sexual cintent too early in the evening.

Digital Television Production aired the sexually explicit images of simulated intercourse and orgasm between 8:30 p.m. and 10 p.m. on April 8 on its XplicitXXX [Note that the channel is softcore and is neither explicit or XXX rated] service on a free-to-air basis to promote the normally encrypted channel.

Regulator Ofcom said it did not receive any viewer calls about the April 8 material, but had heard previous complaints about the channel for similar transgressions. One of Digital Television's rivals alerted Ofcom to the six-minute promotional loop that violated separate rules governing taste and decency, family viewing time and sex and nudity.

It is the first fine against a broadcaster imposed by Ofcom, which was formed last December to consolidate previous regulatory agencies. It can impose penalties up to £250,000

The fined company told Ofcom's sanctions committee that airing the material, which included a caption promoting the film Anal Cream Pie before the 9 p.m. watershed and ahead of its usual encrypted broadcast of 10 p.m. was not deliberate nor an attempt to seek more market share in the cut-throat world of adult entertainment, according to the regulator's findings.

Instead, a substitute scheduler "mistakenly confused two tapes in identical containers", which led to the early screening, regulators said.

Ofcom said the company lacked appropriate management control and took a complacent attitude toward the interests of children, who might have caught glimpse of the pornography. It said Digital Television had pledged to curb such mistakes after confronted about similar incidents in the past.

Officials for Digital Television, which told regulators that a large fine could cripple the company because it loses money, could not immediately be reached for comment.

From Ofcom

They still recommend that films banned by the BBFC should be prohibited along with R18 material. On a positive note they at least present the option of allowing R18s. Also on a very brief reading I didn't spot anything about only allowing the BBFC video version.

I urge all Melon Farmers to respond to the consultation. We need to convince that there is little support for their assumption of censorship and their potential denial of our human rights.

In addition some of their points are puerile. Their suggestion that censorship may assist commercial interests of current broadcasters who have stockpiled a whole load of softcore material that no-one will want takes the mick. They have acknowledged in this reasoning that hardcore is massively what people want yet they recommend illegal censorship for the sake of commercial interests.

See www.ofwatch.org.uk. for details on how to make your views felt

Ofcom are considering two possibilities concerning R18 content on subscription services:

Option one - continue the prohibition on R18s, and R18 standard material and maintain 'adult' material restrictions Ofcom could continue the stance taken by previous regulators with a prohibition on the transmission of R18s and maintain the restrictions regarding the transmission of 'adult' sex material.

Option two - if appropriate safeguards are in place - remove or change the rules regarding R18s and R18 standard material and 'adult' material

Under section 6 of the Act, Ofcom has a duty to ensure that it does not impose or maintain unnecessary regulatory burdens. It may now be the case that the technology exists to protect the under eighteens from R18s, R18 standard material and 'adult' sex material (before 2200) and also protect those adults who do not want to see such material by mistake while allowing adults who have made a deliberate decision to view it.

Recommendation:

The status quo will prevail regarding a prohibition on R18s, and R18 standard material and also on a 2200 start for 'adult' sex material plus the other protections currently in place regarding 'adult' sex material. It will only change if it can be established that there are sufficient safeguards (technical and otherwise) to protect persons under eighteen, and ensure that adults who do not wish to see such material are adequately protected from harm and offence.

More From http://www.ofcom.org.uk/consultations/current/broadcasting_code/?a=87101

3. Whether the transmission of R18s and R18 standard material is compatible with the requirements of the Act and TWF Directive relating to the protection of minors

Whether such material should be prohibited or allowed on certain services

If it is allowed, whether those under eighteen, and adults who do not wish to view this material, can be adequately protected (by technical or other devices)

Whether the restrictions regarding 'adult' television services should be changed and if so with what protections

Background

39. This consultation seeks responses regarding the present prohibition on transmitting R18s and, consequently, R18 standard material. Should the prohibition be lifted or maintained? If it is not to be maintained then Ofcom seeks information on what technical protections or other protections are available which could ensure the protection of people under eighteen (and others who do not wish to access the material). Further, if the prohibition is lifted, on which services should it be lifted?

40. The R18 category is a special and legally restricted BBFC classification for explicit videos of consenting sex between adults. (The BBFC guidelines regarding R18s can be found on the BBFC website at www.bbfc.co.uk) The BBFC are currently classifying some 1400 videos in the R18 category a year. Such material may presently be supplied to adults only, over the counter, in licensed sex shops.

41. The content guidelines for R18s were significantly revised by the BBFC in 2000. Only material distributed in a form that attracts classification under the VRA - essentially videos and DVDs - is required to observe the VRA's restrictions. (The VRA does not prohibit the transmission of R18s on television.)

42. R18 standard material refers to material which has not been offered to the BBFC for classification, e.g. live sex shows or amateur videos, but if it were to be classified would be of R18 standard. This also covers foreign material which does not go through the BBFC system.

43. Section 1.4 of the ITC Programme Code stated that "No R18 film should be transmitted at any time". R18 standard material is also effectively prohibited.

44. The UK government can, and has, on the regulator's recommendation, proscribed services which are licensed abroad but which transmit R18 standard material into the UK. It has previously proscribed five services.

45. In order to recommend such a proscription to the Secretary of State the ITC had to be satisfied that the trade for the service existed in the UK. These proscriptions could in themselves be seen as evidence that some broadcasters wish to provide such services and that there are viewers who wish to receive them.

46. Ofcom is required to set standards which maintain generally accepted standards as required under section 319(2)(f) of the Act. The public must be adequately protected from the inclusion of offensive and harmful material in programmes as judged against generally accepted standards. Ofcom is also required to set standards to protect people under eighteen. The TWF Directive also requires that nothing is included in television broadcasts which might seriously impair the physical, mental or moral development of minors.

47. In a survey of public opinion of 1200 adults commissioned by the BSC and ITC (The Public's View 2002) it was found that 76% agreed that people should be allowed to pay extra to view particularly sexually explicit programmes on subscription services. The survey did not distinguish between R18s and R18 standard material and more commonly available 'adult' material.

48. The government has found no compelling evidence of harm to adults as R18s were made legally available in 2000. However the regulatory impact analysis of a government consultation paper on the regulation of R18 videos, published in 2000, explains the precautionary approach regarding children and R18s: "There is always a risk of age-restricted material, such as tobacco or alcohol, falling into the hands of, and being misused by, children. Unlike tobacco and alcohol, which are widely available, there is no known and substantiated health or other risk associated with watching a video which has been given an R18 classification. However, there is widespread public concern about the possibility of children viewing sexually explicit material which is clearly unsuitable for them and the Government takes the common sense view that exposure to such material at an early age may be harmful to children. There is, therefore, a need to ensure that controls on the distribution and viewing of these videos is as stringent as possible."

49. Ofcom also seeks responses as to whether the restrictions currently in place regarding transmitting 'adult' sex material on certain premium subscription services and on Pay Per View (PPV) and Pay Per Night (PPN) services should be changed and if so on what services and with what protections.

50. The ITC Programme Code does allow latitude for certain premium subscription services available to adults who have specifically chosen them in section 1.4(i). They must comply with measures that ensure the subscriber is an adult and may transmit such material only between 2200 and 0530.

51. Separately in the ITC Programme Code watershed rules may be waived for pay-per-view services "where security mechanisms, such as a PIN system or equivalent, satisfactorily restrict access to films or programmes solely to those authorised to view. The mandatory security mechanism and the safeguards that it provides for children must be clearly explained to all subscribers. It should normally be supported by a detailed billing system that enables subscribers to check all viewing and, in particular, out-of-watershed viewing. In addition operators are expected to implement a suitable film classification system, or equivalent, and to provide any additional information about programme content and reasons for any restrictions that might assist parents and other adults to judge the suitability of material for children. However such services must still "exercise cautionls in daytime and in 'adult' sex material" must still comply with the 2200 to 0530 transmission rule.

52. Some argue that the restrictions in place regarding R18s, R18 standard material and 'adult' material are unnecessary regulation and a restriction on freedom of expression and choice. But other stakeholder groups regard such material as so innately offensive and potentially harmful to adults as well as under eighteens that they consider a prohibition on R18 and R18 standard material an absolute necessity. Some want 'adult' sex material prohibited as well.

53. To remove or change the rules which prohibit R18s and R18 standard material and to waive the 2200 rule and/or associated rules regarding 'adult' sex material would be an important change affecting broadcasters and consumers with significant commercial impact.

54. Option one - continue the prohibition on R18s, and R18 standard material and maintain 'adult' material restrictions Ofcom could continue the stance taken by previous regulators with a prohibition on the transmission of R18s and maintain the restrictions regarding the transmission of 'adult' sex material as described above.

55. Option two - if appropriate safeguards are in place - remove or change the rules regarding R18s and R18 standard material and 'adult' material

Under section 6 of the Act, Ofcom has a duty to ensure that it does not impose or maintain unnecessary regulatory burdens. It may now be the case that the technology exists to protect the under eighteens from R18s, R18 standard material and 'adult' sex material (before 2200) and also protect those adults who do not want to see such material by mistake while allowing adults who have made a deliberate decision to view it.

Benefits

56. Option one would continue to protect the under eighteens and also be based on the assumption that such material is so potentially offensive to society that its transmission would be a breach of generally accepted standards.

57. The basis for retaining the restrictions on 'adult' sex material on certain premium subscription services would be that the restrictions are necessary to prevent those under the age of eighteen accessing this material and so the restrictions protect under eighteens. Also it prevents offence to adults who do not wish to see such material.

58. The benefit of option two would be that it would give viewers greater choice. Many of the member states of Europe allow the broadcast transmission of R18s. This would bring the UK into line with Europe. There would be new channels offering such material and other channels would be able to schedule more freely, potentially bringing in new subscribers thereby increasing the revenues that such channels receive.

Disadvantages

59. The disadvantages of option one would be that it may be out of line with public opinion, limit choice for adults and inhibit the commercial development of existing and potential services.

60. The disadvantages of option two are that under eighteens may not be sufficiently protected and adults may be exposed to potential offence.

Furthermore Ofcom would have to employ a person or persons to view and regulate such material. That might lead to an increase in regulatory costs to broadcasters.

61. There may also be an adverse economic impact on television services presently supplying 'adult' sex material via premium subscription services or via PPV or PPN. These services have built up a stock of material permitted by the ITC and may find themselves at a disadvantage. They risk losing viewers and may have to acquire fresh stock making old stock redundant.

Recommendation

62. The status quo will prevail regarding a prohibition on R18s, and R18 standard material and also on a 2200 start for 'adult' sex material plus the other protections currently in place regarding 'adult' sex material. It will only change if it can be established that there are sufficient safeguards (technical and otherwise) to protect persons under eighteen, and ensure that adults who do not wish to see such material are adequately protected from harm and offence.

See http://www.ofcom.org.uk/consultations/current/broadcasting_code/?a=87101 for complete paper

Andy on www.digitalspy.co.uk/satellite forums

Well, I emailed Ofcom to ask why the Adult Channel had reverted back to it's softcore farcical programming and this is the reply I got, doesn't make promising reading...

Thank you for contacting us about this subject. I doubt that anything I say will alter your opinion that 'hardcore' material should be allowed on Ofcom licensed adult services. But I hope that I can at least demonstrate that our policy is a considered one that seeks to balance the various interests.

Adult services have been allowed on cable and satellite services for a decade now. They include programming more explicit than would be allowed on free-to-air or basic package channels. Much of the programming is cut down hardcore. Our research indicates, however, that public opinion does not favour a move to wholly explicit programming of the sort now available in 'R18'-rated videos. These videos are available only in licensed sex shops, and the broadcasters have to respect the law on this matter.

So a balance is struck between the legitimate wishes of adults to see sex programming and concerns over child protection. Broadcasting is not obviously suited to providing material otherwise available only in a hundred or so specialist shops where access by children can be easily policed. Even where encryption and other security measures can be applied, the wide distribution of the most explicit material must be a significant issue.

Thank you for raising this with us.

Yours sincerely

Alistair Hall
Broadcast Team Officer - Contact Centre
Office of Communications
Riverside House
2A Southwark Bridge Road
London SE1 9HA
www.ofcom.org.uk

Despite the fact that there has been no official change in policy, no reissuing of the programme code and no comment from Ofcom, broadcasting standards for adult content have changed noticeably in the last year. This has been possible because the existing code is vague and contradictory and some of the adult service broadcasters feel less intimidated by Ofcom than they did of the ITC.

In 2002 the Adult Channel was severely reprimanded by the Independent Television Commission for showing what it euphemistically called "unacceptably explicit anatomical details", which is regulator speak for a women's inner labia having been shown on television. This reprimand was the result of a complaint from a single viewer. With the very real threat of 5 figure fines being imposed on any broadcaster who crossed the ITC's line of acceptability, it was hardly surprising that broadcasters were not very keen to push the limits after that. That was until it became clear that the ITC had lost interest in persecuting adult service broadcasters.

By late 2003 this time had arrived with the ITC firmly focused on the hand over to Ofcom at the end of the year. So some of the braver broadcasters decided to test the waters. At some point last year XplicitXXX started transmission of the previously forbidden content, although explicit penetration was still considered too dangerous to show, as this would have been in direct violation of the R18 prohibition.

The old ITC rules state that free-to-air services are permitted to broadcast 18-certificate material late at night and that subscription services can show material that is stronger than is permitted on free-to-air services. But the rules also state that R18 content is prohibited on all channels at all times. The ITC had previously managed this paradox by a private arrangement telling broadcasters what was or was not acceptable. When Ofcom took over in 2004 they appeared to be much more interested in public service broadcasting and mega TV mergers than in the micro management of satellite porn, so "explicit anatomical details" are now a standard part of broadcasts every night on at least two channels. What was previously slightly stronger than "18" is now slightly weaker than "R18".

As far as Ofwatch is aware there have been no complaints whatsoever concerning the new more explicit content, indeed all of the viewers contacted to date have been delighted. Whether this lack of complaints will continue probably depends more on Mediawatch than the viewers, as Mediawatch were responsible for the previous "complaint" about the Adult Channel in 2002. It is to be hoped that Ofcom will see through any Mediawatch based complaint as a simple case of gaming the regulator. Perhaps even Mediawatch can now see the writing on the wall. With the existing content already showing cunnilingus, inner labia, varying degrees of penile erection and ejaculate, there can be little doubt that R18 content is generally accepted by the viewers and that its introduction is now inevitable.

Media regulator Ofcom, which has replaced five existing regulators, attracted controversy long before it assumed its powers this year. Its 1,200 staff are based at offices on the banks of the Thames - and 28 of them earn more than £100,000 a year.

Ofcom's nine board members will exert a powerful influence over the UK's industry, overseeing everything from the development of broadband internet access in the UK to newspaper mergers, the consolidation of the radio and television industries and the future of public service broadcasting.

David Currie
Chairman

The appointment of Labour peer Lord Currie of Marylebone prompted inevitable accusations of cronyism. A party donor, albeit on a small scale, he resigned the party whip to take up the post. Currie is a former adviser to Tony Blair, but he is also regarded as a key ally of the Chancellor. Currie is an academic and economist who is Dean of City University's Business School in London. He is paid £133,000 a year for the four-day-a-week post at Ofcom.

Stephen Carter
Chief Executive

Carter was previously managing director of debt-ridden cable company NTL. Shortly after his appointment, it emerged that he received a £1.6 million bonus from NTL, even though it filed for Chapter 11 bankruptcy protection in 2002. Carter is also a former chief executive of advertising agency J Walter Thompson, and beat Independent Television Committee chief executive Patricia Hodgson to the Ofcom job. Carter was on the shortlist for no fewer than three other top media jobs before his Ofcom appointment - at Trinity Mirror, publisher Emap, and Channel Five.

Millie Banerjee

Banerjee is a telecoms specialist who spent 25 years at BT. Her experience will be vital in Ofcom's battles with BT over the price of internet access. Banerjee is also a non-executive director of Channel 4 and a former director of the Prison Board. She resigned in 1995 after Conservative leader Michael Howard, then Home Secretary, sacked the director-general of the Prison Services, Derek Lewis.

David Edmonds

David Edmonds was director general of telecoms regulator Oftel until it was wound up last year. He is one of several board members to be appointed directly from the regulators replaced by Ofcom. At Oftel, Edmonds took on BT - forcing it to open up its network to competition - and the big four mobile phone operators - over the amount they charge for calls made between networks. One of three major reviews announced by Ofcom centres on the price BT charges for wholesale internet access.

Ian Hargreaves

Hargreaves, a former editor of the Independent, is the only member of the Ofcom board with direct experience of running a national newspaper. His knowledge is likely to prove useful if the Telegraph group is auctioned off by Hollinger. Ofcom will be required to subject any bids to a public interest test. Hargreaves is director of corporate affairs at BAA and Professor of Journalism at Cardiff University. He is a trustee of left-leaning think tank Demos, and was a member of the Chancellor's Social Investment Task Force.

Richard Hooper
Deputy Chairman

Richard Hooper is also chairman of Ofcom's Content Board. As such, he is responsible for standards of taste and decency on UK television. He will be assisted by an eclectic mix of 'content' board members, including ex-Telewest chairman Adam Singer, triple-jumper Jonathan Edwards and former children's TV presenter Floella Benjamin.

Hooper started his career as a producer at the BBC. He was chairman of the Radio Authority, one of the five industry regulators Ofcom has replaced.

Sara Nathan

Nathan is a former radio producer, editor of Channel 4 News at ITN and ex-member of the now defunct Radio Authority. She left ITN in 1997 after Channel 4's then chief executive, Michael Jackson, invited bids from other companies besides ITN for the channel's news contract, in an effort to woo younger viewers.

Ed Richards
Senior Partner, Strategy and Market Development

Richards is a former New Labour adviser who has been called one of the key architects of the Communications Act. He joined Ofcom directly from Number 10, where he was Blair's senior policy adviser on the media. Richards is leading Ofcom's 12-month review of public service broadcasting, which will feed into the BBC's charter review.

Kip Meek
Senior Partner, Competition and Content

A management consultant by training, Meek is overseeing a review of the airwaves. The review will eventually lead to the introduction of a trading system allowing companies to sell spectrum access on to third parties. It could also lead to new charges for the TV and radio companies that use the spectrum. Public service broadcasters currently enjoy free access.