Ofcom Sanctions Committee: Shall we fine them?

Ofcom has fined DM Digital Television Limited £17,500 for seriously and repeatedly breaching advertising rules.

In February 2009 the digital station – which broadcasts mainly in Urdu to the UK Asian community – broadcast an advertisement for a spiritual healer called Professor Mohammed Zain.

The Advertising Standards Authority subsequently received a complaint from Manchester Trading Standards, which been contacted by the social worker of a viewer who had approached Professor Zain after seeing the advert.

The viewer had paid money to Professor Zain on two occasions for help in finding a partner. According to the viewer, Professor Zain told her to credit his account with £110 and to pray for one week and then to call him back. When she did this, he told her to credit his bank account with a further £1,400 and in return he would find her a partner. The viewer proceeded to transfer the requested money.

The Advertising Standards Authority (ASA) found the advertisement was in breach of the CAP (Broadcast) TV Advertising Standards Code because it was misleading and likely to exploit the vulnerable and that it represented advice to individuals, based on psychic or faith based practices for personal problems.

In serious cases the ASA can refer matters to Ofcom as the backstop regulator, which has the power to fine broadcasters for breaching advertising rules.

Ofcom considered that the breach was serious because it resulted in actual financial harm to a viewer.

Ofcom also concluded that the breach demonstrated a repeated failure on behalf of DM Digital to ensure that the material it broadcast met the requirements of the TV Advertising Code.

The radio host, Jon Gaunt, who called a councillor a Nazi live on air has lost a legal bid to challenge Ofcom's decision to uphold complaints against him.

Ofcom received 53 complaints over Gaunt's interview with Redbridge councillor Michael Stark, which took place in November 2008. The pair had been debating the council's decision to ban smokers from fostering children when Gaunt called Stark a Nazi, a health Nazi and an ignorant pig.

Gaunt apologised on-air following the exchange, but Talksport sacked the presenter after its own investigation.

The TV censor Ofcom noted the apology, but in June 2009 upheld the complaint under the rules regarding offensive material.

Gaunt's lawyers argued that Ofcom infringed Gaunt's right to free speech under article 10 of the European Convention on Human Rights and won the right to take the case to judicial review.

But at London's High Court, Sir Anthony May and Mr Justice Blair dismissed the proceedings. May said Ofcom was justified in its conclusion: The broadcast was undoubtedly highly offensive to Mr Stark and was well capable of offending the broadcast audience. The essential point is that the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification.

Gaunt was refused permission to appeal although he can renew his application directly to the Court of Appeal. \

Human rights group Liberty, which intervened in the case because of its wider importance to free speech, said Gaunt and his legal team intended to challenge the ruling.

Comment: Court should consider the underpinning law rather than Ofcom's code

16th July 2010. Based on contribution from IanG on the Melon Farmers Forum

Sir Anthony appears to be quoting Ofcom's Code when offering his opinion. He's not applying or reading the law and assessing if Ofcom's Code does what Ofcom are required to do by law.

Section 319(2)(f) of the Comms Act 2003 requires Ofcom as part of their Standards Objectives to ensure generally accepted standards are applied to the contents of TV and radio services to provide adequate protection to members of the public from the inclusion in those services of offensive and harmful material.

Clearly, the host/presenter/guest is not responsible for what is broadcast by the licensee. The generally accepted standard means of preventing offensive and harmful material leaving a broadcaster's aerial during live transmissions is to employ a short delay such that an operator can bleep or silence any offensive material so that it is not included in their transmission and the the public are thus adequately protected from exposure to it...that is as per the requirements of section 319(2)(f) of the Comms Act and Ofcom's Standards Objectives as dictated by THE LAW.

As Ofcom's Code doesn't state what generally accepted standards are to be applied to adequately protect the public from inclusion of offensive and harmful material in programmes; and the Code fails to specify what is to be considered offensive and harmful material; and fining people after the fact or giving them a ticking off doesn't prevent the inclusion of such material then, IT IS ENTIRELY OFCOM'S FAULT for NOT ENSURING Talksport prevented the inclusion of Gaunt's comments in their broadcast.

Just to illustrate: If the Comms Act required Ofcom to ensure adequate protection against people being shot and then someone got shot, who could and should be held accountable?

Surely, Sir Anthony cannot believe the intent of Parliament was to allow Ofcom to prevent people expressing their thoughts and feelings on air? Such a notion is an absolute violation of Freedom Of Expression. Clearly, no matter how offensive 53 people found Gaunt's comments, his right to state his opinion in any terms he so chooses is sacrosanct - as is everyone's right to do the same.

Jon Gaunt needs to appeal on the grounds that Ofcom's Code doesn't do what is required by law and request or force a Judicial Review of Ofcom's pathetic excuse for a Code according to the letter of the law. The High Court is not there to enforce Ofcom's unenacted Code. They're there to uphold and enforce the LAW. 319(2)(F) certainly doesn't say Ofcom are supposed to hang around waiting for someone to complain about feeling offended and then fine the channel - but that's exactly the line they've chosen to adopt.

The Door
ITV1, 2 April 2010 at 20:25 and 3 April 2010, 21:00

This Morning ITV1
31 March 2010, 10:30

Introduction The Door was a two-part special, broadcast on ITV1 and hosted by Chris Tarrant and Amanda Holden. During the programme six celebrities competed against one another in order to win money for their chosen charity. The celebrities competed in a set of challenges - found behind The Door - which were designed to test their bravery.

One of the challenges required the celebrities, covered in raw meat, to crawl past what the programme described as a pack of hungry dogs in cages, which were barking aggressively. Other challenges involved the celebrities putting their hands in glass jars that contained scorpions, spiders and other insects in order to retrieve a key, crawling through dark and claustrophobic tunnels filled with rats, and picking up snakes.

On 31 March 2010 (prior to the broadcast of The Door a couple of nights later) This Morning included an interview with Chris Tarrant, who discussed the upcoming programme. During the interview some short clips of the programme were broadcast, including the challenges involving the dogs in cages and various insects and animals in jars.

Ofcom received seven complaints about This Morning and 199 complaints about The Door, as broadcast on 2 and 3 April 2010. In summary, the complainants said they had been offended by the content of the programme, particularly in relation to the welfare of the dogs in cages. Complainants stated for example that the dogs appeared distressed and anxious and that the treatment of the dogs in the programme was completely inappropriate, unnecessary, and cruel.

Some complainants were also concerned about the way the other animals were handled by the celebrities in the programme, in particular the rats and snakes.

Ofcom considered

• Rule 2.3 of the Code (material that may cause offence must be justified by the context).

Response The Licensee said that it takes seriously its responsibility for animal welfare. It said that the content and tone of the programme was made clear to the audience at the start and that the various games were designed to challenge and sometimes terrify the celebrities, but they were for the most part clearly artificial.

With regard to the challenge involving the dogs, the Licensee said that the welfare of all the animals was an overriding priority in the planning of this challenge. It explained that only specially-trained animals were used in the dog challenge, as provided by Animal Actors, a reputable company that the producers had worked with before, and which has been supplying animals to television programmes for 30 years. ITV said that the dogs were all specially trained to bark following hand signals and verbal commands and were not in their cages for more than half an hour at a time. The Licensee explained that at all times each dog was supervised by its handler to ensure that they were correctly and responsibly treated during the recording… and after filming the handlers were fully satisfied with the way the filming was conducted.

In relation to the other animals included in the programme, ITV said that similarly, professional animal handlers were employed to look after the other animals… and were on set throughout the filming of the challenges.

Ofcom Decision: Not in Breach

The Door

Ofcom has no legal powers or duties to consider complaints purely about the treatment of animals, complaints about animal welfare are considered in relation to the obligation to ensure that generally accepted standards are applied to content to provide adequate protection for members of the public from harmful and/or offensive material.

In Ofcom's view, while viewers were shown images of dogs in cages and animals being handled by celebrities, none of the animals appeared distressed during the programme and the images were appropriately limited.

Ofcom also took into account that the dogs were specially trained, all the animals were supervised by trained handlers at all times, and both programmes were shown after 20:25. In light of these points and the programme's editorial purpose, Ofcom considered that showing such activities was not likely to cause disproportionate offence to viewers and was editorially justified.

Ofcom considered this type of programme to be in keeping with ITV1's familiar style and format of programming and would not have exceeded the likely expectations of the majority of the audience. Given these factors, Ofcom concluded that the images broadcast were justified by context and were not in breach of Rule 2.3 of the Code.

This Morning

Ofcom took into account that the images were broadcast as part of an interview with the host of The Door, Chris Tarrant, and that during the interview he clearly explained the nature of the programme and its similarities with I'm A Celebrity Get Me Out of Here.

In Ofcom's view, the clips shown did not show the animals in distress and they were appropriately limited. In light of these factors, Ofcom considered that the images broadcast in this programme were editorially justified and would not have exceeded the likely expectation of the majority of the audience for this particular programme.

Ofcom therefore concluded that the images were justified by context and were not in breach of Rule 2.3 of the Code.

Sky News has been cleared by Ofcom over its coverage of the general election after nearly 2,800 complaints about the conduct of two of the presenters.

The TV censor received 671 complaints from viewers about Boulton's behaviour towards Liberal Democrat leader Nick Clegg during the Sky News prime ministerial debate on April 22.

Nearly 700 viewers also objected to Boulton's interview with former Labour spin doctor Alastair Campbell on May 10, during which Sky's political editor appeared to lose his temper.

Another 1,800 people complained to Ofcom about Burley's interview with electoral reformist David Babbs on May 8, an exchange which led to a campaign on Twitter calling for her to resign.

But Ofcom has dismissed all the complaints and described the spat between Boulton and Campbell as a confrontation between two well-known figures, who would have been used to the cut and thrust of political debate. In its Broadcast Bulletin, the regulator said it was not unreasonable for Sky's political editor to defend his position as Campbell effectively accused Boulton of wanting David Cameron to be Prime Minister.

Ofcom said although Boulton became visibly angry, it does not in itself, impact on the due impartiality of the content. We considered that although the tone and content of this exchange was unusual, it would not have been beyond the likely expectations of the audience for this channel, said the regulator.

It should be noted that the discussion at no time resulted in any abusive language or gratuitous insults. Therefore to find that these heated exchanges could not be transmitted would be an unnecessary interference with the broadcaster's and the viewer's right of freedom of expression.

The viewers who complained about Burley's interview found she was rude, aggressive and repeatedly interrupted Babbs from campaign group 38 Degrees.

Ofcom acknowledged concerns about the presenter's interview style, but said Burley gave Babbs sufficient space to get his point across and did not show any bias against electoral reform.

We noted that even during the parts of the interview where Kay Burley was repeatedly interrupting David Babbs, the interviewee was still able to get some points across to a limited degree, whimpered Ofcom. As such, we considered that the subject matter at hand was treated with due impartiality in line with the requirements of the Code for major matters of political controversy.

Regarding the complaints about Boulton's comment about an article in The Daily Telegraph to Clegg during the election debate, Ofcom found the remark did not breach the Broadcasting Code for guaranteeing due impartiality. The regulator said his actions were understandable in the context of the programme.

Dum Hai Tou Entertain Kar
ARY Digital, 31 March 2010, 19:30

ARY Digital is a general entertainment channel serving a UK Pakistani audience, and is broadcast on cable and satellite platforms.

Dum Hai Tou Entertain Kar (Entertain, If You Dare) is a Pakistani talent show.

Ofcom received two complaints that in this particular episode a contestant slit a chicken's throat on air and drank its blood while the chicken was still struggling. The complainants considered this content was inappropriate for broadcast at this time. They said that the programme was offensive, particularly given it was broadcast during school holidays when families might be watching together, and that there was no warning of the impending act of cruelty.

Ofcom considered Rules

• 1.3 (children must be protected from unsuitable material by appropriate scheduling)
• 2.3 (offensive material must be justified by the context).

Ofcom Decision: Breach of Rules 2.3 and 1.3

In this case, the contestant cut a chicken's throat live on air, held the dying bird above his head, and then drank the blood that dripped from its neck. The contestant took several tries to cut through the chicken's throat and appeared to be almost sawing using a blunt knife as the chicken was still moving and flapping. The whole sequence lasted several minutes and no measures appeared to have been taken to limit the suffering to the bird whilst it was inappropriately killed.

It was clear to Ofcom that this material was capable of causing a considerable degree of offence through its graphic nature and also by it being carried out live on air as an act in a game show format. The killing of the chicken was done for the purposes of entertainment rather than for any more serious editorial purpose. To this extent, in Ofcom's opinion, the killing of the chicken with the associated cruelty was gratuitous and increased the level of offence likely to be caused.

Ofcom employed the services of an independent translator who confirmed that no verbal warning was given, either in Urdu or English, at the start of the programme or during the programme so as to give a warning to viewers about the potentially offensive material included in this programme. In summary, this broadcast of the killing of the chicken in a gratuitously cruel way purely for the purposes of entertainment exceeded generally accepted standards and breached Rule 2.3.

In Ofcom's view this material was not appropriately scheduled so as to provide the necessary protection to child viewers, as has been acknowledged by ARY. This content was shown on a weekday early evening at a time when children may have been watching, some unaccompanied, and was broadcast during school holiday time when younger viewers may have been in the audience. ARY is a general entertainment channel and talent shows often attract young viewers. Ofcom therefore concluded that there was also a breach of Rule 1.3 in broadcasting this programme.

Ofcom has begun a review that will result in significant cuts to its £142m annual budget and staff, and its chief executive, Ed Richards, has decided to take a 10% pay cut.

Richards said today that the review would lead to a significant reduction in expenditure, with job losses likely.

The TV censor and telecoms regulator, which employs 873 staff and has a budget of £142m for the year to the end of March 2011, intends to complete the first phase of its review in late summer.

Speaking to staff, Richards said that the organisation would have to make some very tough decisions. This would ultimately see Ofcom do more for less, he added. We will redefine how we do things to deliver the same capability but spend less money doing so.

It is not known how deep the cuts to Ofcom's budget will be, or the number of jobs that will go. However, in the emergency budget on 22 June the government indicated that it was looking for cuts of around 25% from all departments.

Annual Report Published

Ofcom has now published its annual report for 2009/10 [pdf].

The report has little of interest to Melon Farmers, the usual bollox about child protection justifying the censorship and more emphasis on demanding compliancy to their code rather than considering whether it is lawful, warranted or even wanted.

Ofcom present the usual meaningless statistics about numbers of complaints. They write:

Programme standards

Of the 10,679 closed cases (28,072 complaints) relating to programme standards:

• 152 cases were found to be in breach either of the Broadcasting Code, other Ofcom codes or of licence conditions. Of these, six cases were subject to statutory sanctions (involving six separate broadcasters)
• 13 cases were resolved
• 10,514 cases were not in breach or out of remit.