Ofcom Watch

Ricky Gervais: Science
Channel 4, 14 October 2011, 22:35

Ricky Gervais: Science was a programme featuring a stand-up show by the comedian Ricky Gervais. This post-watershed programme focussed on Ricky Gervais's outspoken thoughts on a variety of topics including racism, fame, obesity, religion and language.

At one point during his routine, Ricky Gervais referred to the singer Susan Boyle, and he made the following remark:

Look at Susan Boyle. If you can. Fucking hell! Jesus Christ. Oh. Shocking. Be fair though, „cause usually in the music industry it's all about image isn't it, you can't just have a great voice and a great talent... but I don't think she'd be where she was today if it wasn't for the fact that she looked like such a fucking mong.

The comedian then proceeded to debate with an imaginary complainant who might object to his use of the word mong on television:

mong?. Yeah he did. Yeah. You can't say „mong?. You can. It's fucking easy. It's one of the easiest words to say, it's like [mouths the word while he says it] „mong?, it's like, you just need lips, „mo...?, even mongs can say it, that's part of the beauty of the word.

He continued in the same vein.

Ofcom received three complaints about Ricky Gervais's comments. They concerned his repeated use of the word mong, which complainants regarded as offensive because of its derogatory association with Down's Syndrome.

Ofcom considered Rule 2.3 of the Code, which states:

In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context... Appropriate information should also be broadcast where it would assist in avoiding or minimising offence.

Ofcom Decision: Not in Breach of Rule 2.3

We noted that Ricky Gervais's example about how the meaning of words changes by saying:

When I came here tonight I called you all „cunts?, remember? That used to be an insult, but now it's a term of endearment. So words change. Okay.

In Ofcom's view, while this clearly drew the focus of the routine on to the subject of how words change, thereby potentially minimising the offence, it was nevertheless clearly also done in a tongue-in-cheek way. This may have caused some viewers to question his assertion that he had not used either the words cunt or mong in an intentionally offensive way.

However we considered that the degree of offensiveness was reduced to some extent by many in the audience knowing Ricky Gervais' reputation for acerbic, controversial and challenging humour, and understanding that Ricky Gervais was likely to have been being knowingly disingenuous when he said the word mong was no longer linked with Down's Syndrome, and that the word cunt was now a term of endearment. Ofcom considered that the material would not have exceeded viewers' expectations for Ricky Gervais's type of humour.

Ofcom also had regard to the fact that Channel 4 is a public service broadcaster with a unique statutory remit to broadcast a range of high quality and diverse programming, and this may include programming that is provocative and controversial.

We noted that the programme began at 22:35, more than an hour and a half after the watershed, and that therefore most viewers of the programme would have been expecting stronger and more challenging content.

We also took into account that Channel 4 brought the challenging nature of the content to the attention of viewers with a warning at the start of the programme, which stated that it would contain strong language and adult humour.

We therefore concluded that several aspects of this content had the potential to cause considerable offence. However, on balance, this potential offence was justified by the context of this provocative comedy routine challenging the evolution of words, as broadcast with a warning as part of a late night comedy show on Channel 4. Channel 4 therefore applied generally accepted standards, and the broadcast of Ricky Gervais' comments was not in breach of Rule 2.3.

Ofcom takes this opportunity to remind all broadcasters that its recent 2010 research shows that the word mong has the potential to be highly offensive to many people, and so broadcasters should take great care with its use.

This Morning
ITV1, 7 October 2011, 10:45

This Morning is ITV1's weekday morning topical magazine programme which is hosted on a Friday by presenters Eamonn Holmes and Ruth Langsford.

This programme featured an item at 10:45 about a survey which reported that one third of Britons do not know the location of the three largest cities in the UK. Studio guest Jonathan Wilkes said he believed that he was in that third because he thought Manchester was one of the three. Eamonn Holmes responded incredulously:

what are you ... retarded? Don't be stupid, don't be stupid ... if you follow football, which you do, you know from the league tables ... where everywhere is.

Several viewers contacted the broadcaster directly to complain about Eamonn Holmes using the word retarded and, following the commercial break, he made the following on screen apology at 11:10:

Very good to see you again. Sorry to the three or four of you who have got in touch this morning because I have used the word retarded during the newspaper review – and you seem to take it personally...or you seem to say that I am insulting all sorts of people who have all sorts of conditions. I used it as a term...that someone...so, I don't know what you would use instead of the word – but obviously I would never want to do that – cause any sort of offence for that and having done so much work – particularly, there is this the man who has an autistic child, who says that somehow I have insulted his child, so I really hope it hasn't. I certainly wouldn't use it in that context but sorry if that caused you offence sir. I'll get your name and address in a moment and reply to you.

A complainant alerted Ofcom to the use of the word retarded. Ofcom considered the word was capable of causing offence and raised potential issues under Rule 2.3 of the Code, which states:

In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context.

ITV accepted that the word retarded did have the potential to cause offence. However, in the context of a spontaneous reaction made during a live discussion programme, the Licensee did not consider it exceeded generally accepted standards. Insofar as any offence was caused, ITV said it took rapid and effective steps to mitigate that offence by broadcasting a prompt apology. ITV considered the apology was appropriately worded to convey Eamonn Holmes', and the Licensee's, sincere regret for any offence caused.

Ofcom Decision: Resolved

Ofcom took account of the fact that This Morning is a live programme, and the comment made by Eamonn Holmes was clearly unscripted and made in response to a spontaneous situation. However, on balance and in the circumstances of this particular case, Ofcom considered that this was insufficient context to justify the offence that the word retarded was capable of causing to the audience.

Ofcom, however, took account of Eamonn Holmes' broadcast of a personal apology as soon as practicable after the subsequent commercial break, in which he stated that he had not intended to cause any offence. On balance, Ofcom considered this case to be resolved.

Ed Richards, the boss of Ofcom made a speech to the Oxford Media Convention on the 25th January 2012.

He repeatedly alluded to more censorship for the internet and video on demand in particular. He said:

In between the twin poles of linear TV and the open internet, it becomes quite interesting.

When something looks, feels and acts like TV, but is delivered over the internet and into people's living rooms, we need something that meets audiences' expectations and provides the right degree of reassurance.

It is here that such services intersect with the views and concerns expressed by the participants in our research and where greater assurance than currently on offer may need to be considered.

It seems undesirable for these services to be subject to full broadcasting style regulation -- by and large they belong to a different form of service and come from a very different context. But we do need to consider whether to develop the approach in relation to existing co-regulation for video on demand to offer greater assurance and to ensure there is public trust in the approach to regulation as these services become more and more pervasive and significant.

In the case of video-on-demand services, our research shows that protection of minors and the risk of harmful content is the most likely focus. And our experience of broadcast regulation suggests that privacy and fairness for individuals are also areas that need careful exploration.

In this context I wonder therefore whether there may be a fairly simple opportunity to establish a core set of principles and aims which are held in common across a diverse media terrain with different regulatory environments.

Such a set of core principles could be established between the regulators that emerge from the current debate. They might aim to articulate the minimum standards which we would like to see in the UK, regardless of the nature of the service or its specific regulatory setting.

This is not as far-fetched as it may seem. The Ofcom Broadcasting code is remarkably close to the BBC's editorial guidelines. The PCC Code and the Ofcom Broadcasting Code share many of the same objectives, principles and indeed requirements, although the range of issues in the Ofcom Code is, for obvious reasons, significantly more extensive.

...

But we take an interest in the debate because over time, and quite quickly in some cases, the difference between video on demand content and that of increasingly video rich digital newspapers may well diminish. In thinking about an approach to media regulation for the next decade or more, it is as well to have an eye on the direction in which the tide is flowing.

More prosaically, we might be able to offer some assistance from what we have found to be necessary for regulation to be effective.

In our experience there are some critical features of regulatory systems which need to be present, or largely present, in order to ensure effectiveness and in turn to build and sustain public trust.

...Read the full article

Bluebird Live
Sport XXX Girls (Channel 967), 28/29 August 2011, 23:45 to 00:45
Sport XXX Girls (Channel 967), 29 August 2011, 02:45 to 03:45
Sport XXX Girls (Channel 967), 3/4 September 2011, 23:45 to 00:45

Bluebird 40+
Northern Birds (Channel 954), 29 August 2011, 22:50 to 23:25

Bluebird Live and Bluebird 40+ are segments of interactive adult chat broadcast on free to air babe channels Sport XXX Girls and Northern Birds.

The licences for Sport XXX Girls and Northern Birds are held by Satellite Entertainment Limited (SEL).

A complaint alerted Ofcom to the level of sexual content in the material listed above. Ofcom therefore viewed this content and found:

1. Bluebird Live, Sport XXX Girls, 28/29 August 2011, 23:45 to 00:45 The female presenter was wearing a light blue one piece costume which consisted only of a thin strip of fabric between her legs which covered her vagina but resulted in her outer genital area being exposed. During the broadcast she lay with her legs wide open to camera gently thrusting her hips forward and stroking her upper inner thigh area. Given that this shot of the presenter with her legs wide open remained onscreen for the majority of this broadcast, the material was both invasive and prolonged.

SEL denied that the presenter's outer genital area was exposed, saying that it was covered by her garment. The Licensee also denied that these were prolonged or intrusive images, and asked for further clarification about what Ofcom considered to be invasive about the material.

2. Bluebird Live, Sport XXX Girls, 29 August 2011, 02:45 to 03:45 The presenter wore only a pink lace thong and was filmed with a hand held camera. Throughout the broadcast there were various prolonged and intrusive images filmed, extremely close up and for a duration of time, from directly behind the presenter's buttocks and also between her wide open legs. While being filmed in these positions she thrust her buttocks and hips towards the camera revealing her outer genital area and anal detail.

SEL said there were no prolonged images in the sequence with the potential to cause offence, and asked for Ofcom?s clarification as to how the images were intrusive and prolonged.

3. Bluebird Live, Sport XXX Girls, 3/4 September 2011, 23:45 to 00:45 The female presenter was wearing only a thin white and red thong. For the majority of this broadcast she was positioned on all fours with her buttocks to camera. While in this position her anal and outer genital areas were clearly visible. Given these shots had a duration of several minutes and were in sufficient close up to show anal and outer genital detail they were both prolonged and intrusive.

The Licensee said that the presenter?s garment was clearly covering her genitals, and that for most of the sequence the model was on her stomach with the camera focussing on her face; therefore, SEL failed to see how these images could be in breach of the BCAP Code.

4. Bluebird 40+, Northern Birds, 29 August 2011, 22:50 to 23:25 The presenter wore a black leather look thong composed of a thin strip of fabric only covering her vagina and so revealing her outer genital area. During the broadcast she lay on her back with her legs wide open to camera, and while in this position she gently thrust her hips backwards and forwards. Some particularly intrusive images followed, filmed at close range, when her outer genital area was visible for a prolonged period. In this position she massaged and stroked around her outer genital area.

Ofcom considered this material raised issues warranting investigation under Rule 4.2 of the BCAP Code, which states that:

• Advertisements must not cause serious or widespread offence against generally accepted moral, social or cultural standards.

Ofcom Decision: Breach of Rule 4.2 of the BCAP Code

Ofcom concluded that relevant scheduling restrictions were not applied so as to ensure that the material which was broadcast was not capable of causing serious or widespread offence against generally accepted moral, social or cultural standards. Specifically, this material should not have been broadcast within the context of „adult chat? advertising content that was freely available without mandatory restricted access.

Therefore Ofcom found this material in breach of Rule 4.2 of the BCAP Code.

Ofcom has recently imposed a sanction on the Licensee for a number of serious and repeated breaches of the BCAP Code3 , which led to the imposition of a financial penalty totalling £130,000. These present contraventions of the BCAP Code by SEL are another example of very poor compliance by the Licensee. In the circumstances, Ofcom is considering what further regulatory action is appropriate.

Exposure: Gaddafi and the IRA
ITV1, 26 September 2011, 22:35

Exposure: Gaddafi and the IRA was a current affairs programme which investigated the financial and military links between the former Libyan leader, Colonel Gaddafi, and the Irish Republican Army (IRA).

A total of 26 viewers alerted Ofcom to two pieces of footage shown within the programme, which viewers considered were misleading:

• footage, labelled IRA Film 1988, which was described in the programme as film taken by the IRA of IRA members attempting to shoot down a British Army helicopter in June 1988. Viewers said that this footage was in fact material taken from a video game; and
• footage of police clashing with rioters in Northern Ireland, described in the programme as being of a riot in the Ardoyne area of Belfast in July 2011. Viewers said that, due to the type of police riot vehicles shown in the footage, the footage must have been of an earlier riot.

Ofcom considered the above material raised issues warranting investigation under Rule 2.2 of the Code, which states:

Factual programmes or items or portrayals of factual matters must not materially mislead the audience.

ITV explained  that regrettably the internet footage used was not cross-checked and verified by the production staff as being the Cook Report footage.  The final result of this series of events was that the internet footage used in the programme was not the Cook Report footage but footage from the computer game Arma II. ITV said that this incident was purely a case of human error. It was not ITV's intention to mislead viewers and the use of the wrong footage was in no way deliberate.

ITV also said that during the production process, the programme producer had requested footage of the July 2011 Ardoyne riot from a local historian who has supplied footage to various broadcasters in the past, and who, therefore, the producer considered to be a trustworthy source. However, the historian provided footage of an earlier riot that had occurred in the Ardoyne area of Belfast several years before 2011. Due to a miscommunication between the producer and the historian the discrepancy between the July riot and the [riot footage] supplied was not discovered, and the clip of the earlier riot remained in the programme. ITV said that this mistake was the result of human error and not a deliberate attempt to mislead viewers.

Ofcom Decision

The viewers of this serious current affairs programme were misled as to the nature of the material they were watching. In the circumstances, this represented a significant breach of audience trust, particularly in the context of a public service broadcaster. As such, Ofcom considered the programme to be materially misleading, in breach of Rule 2.2.

Ofcom was particularly concerned by this compliance failure by ITV. We do not expect any issues of a similar nature to arise in future.

Breach of Rule 2.2

Ofcom has revoked the licence for Press TV to broadcast to the UK.

Ofcom cites The Communications Act 2003. Under section 362(2) of the Act, the provider of the service for the purposes of holding a licence is the person with general control over which programmes are comprised in the service.

Ofcom explained:

In the course of correspondence and meetings with Ofcom, statements made by Press TV Limited about the operation of the Licensed Service failed to satisfy Ofcom that the Licensee had general control over which programmes and other services were comprised in the Licensed Service. Ofcom therefore concluded that Press TV Limited had ceased to provide the Licensed Service in accordance with section 362(2) of the Act and that, accordingly, it was appropriate to revoke the Licence.

The Licence was revoked on 20 January 2012.

ATVOD welcomes Ofcom appeal decision that it was correct to determine that three Viacom companies were responsible for VOD services featuring their content on the Virgin Media platform

Appeals by Viacom companies Nickelodeon UK Limited, The Paramount Partnership and MTV Networks Europe against ATVOD determinations that they respectively hold regulatory responsibility for the Nickelodeon, Comedy Central and MTV video on demand content on the Virgin Media platform, have today not been upheld by Ofcom.

The decision means that the three Viacom companies rather than Virgin Media are responsible for ensuring that the services comprising their video on demand programmes on the Virgin Media platform comply with the statutory rules which apply to On Demand Programme Services.

The decision turned on the definition of editorial responsibility as defined in section 368A of the Communications Act 2003, which states that a person has editorial responsibility for a service if that person has general control over what programmes are included in the service and over the manner in which those programmes are organised within the service.

Welcoming the decision, ATVOD Chief Executive Pete Johnson said:

This is a complex area and the appeal system is a vital part of the process, giving service providers, in particular, greater clarity over where regulatory responsibility lies.