Ofcom Watch

TV-like video-on-demand services get regulated by Ofcom and the self-regulatory Association for Television On-Demand (ATVOD) starting 16th December.

This is the UK implementation of the European Commission's 2007 Audio-Visual Media Services (AVMS) directive, which extended regulation to television-like online services.

The new regs mean VOD shows must not contain any incitement to hatred based on race, sex, religion or nationality; must provide appropriate protection for minors against harmful material and sponsored programmes and services must comply with applicable sponsorship requirements.

But AVMS left TV-like wide open (certainly ITV (LSE: ITV) Player, for example, but what about YouTube and Bebo shows?) And Ofcom, too, is vague on which services must fall in line…

It commissioned Essential Research to ask viewers what they think TV-like means. In an 80-page report, they suggest it means professionally-produced shows with which they are familiar. But, buried in a separate 88-page report, Ofcom says it won't know which providers the new scope will cover until new government regulations are brought in March 2010.

Even at the point, the new framework looks half-cocked….Ofcom is leaving it to the services themselves to notify it on whether they should be regulated. —The services will have to pay a fee for the privilege. —Services that do so must keep VOD material for 42 days after it was last made available.

Ofcom has published its revised 2009 Broadcasting Code (the 2009 Code) which sets censorship rules for TV and radio broadcasts.

The 2009 Code refreshes aspects of rules that have been in force since July 2005. It continues to set out what is acceptable to broadcast and covers such areas as the protection of under-eighteens, harm and offence, fairness and privacy and commercial references in programmes.

The main revisions involve a clarification of parts of the Code to help broadcasters avoid compliance failures particularly in relation to audience competitions and voting, and the broadcast of sexual material.

The changes to the Code also incorporate the requirements of the European Audiovisual Media Services (AVMS) Directive which must be implemented by 19 December 2009.

The new rules do not change current regulatory practice, but offer a clarification of the rules to benefit broadcasters and audiences and help minimise future compliance failures. Sexual Material

There have been a number of compliance failures concerning the broadcast of sexual material on TV. The 2005 Code contained rules to ensure that material of a sexual nature was appropriately scheduled and, where appropriate, access to it was restricted in order to protect under-eighteens.

We consider it helpful to revise the rules about sexual material and to clarify Ofcoms guidance in this area. Again, there is no change to the current regulatory practice, only a clarification of the rules and guidance to benefit broadcasters and audiences, in order to minimise the risk of material being broadcast which is in breach of the Code.

The section of the code concerning sexual material now reads:

Sexual material

1.17 Material equivalent to the British Board of Film Classification (BBFC) R18-rating must not be broadcast at any time.

1.18 Adult sex material - material that contains images and/or language of a strong sexual nature which is broadcast for the primary purpose of sexual arousal or stimulation - must not be broadcast at any time other than between 2200 and 0530 on premium subscription services and pay per view/night services which operate with mandatory restricted access.

In addition, measures must be in place to ensure that the subscriber is an adult.

Meaning of mandatory restricted access: Mandatory restricted access means there is a PIN protected system (or other equivalent protection) which cannot be removed by the user, that restricts access solely to those authorised to view.

1.19 Broadcasters must ensure that material broadcast after the watershed which contains images and/or language of a strong or explicit sexual nature, but is not adult sex material as defined in Rule 1.18 above, is justified by the context. (See Rules 1.6 and 1.18 and Rule 2.3 in Section Two: Harm and Offence which includes meaning of context.)

1.20 Representations of sexual intercourse must not occur before the watershed (in the case of television) or when children are particularly likely to be listening (in the case of radio), unless there is a serious educational purpose. Any discussion on, or portrayal of, sexual behaviour must be editorially justified if included before the watershed, or when children are particularly likely to be listening, and must be appropriately limited.

Greg Dyke, the former director general of the BBC, has called for the BBC Trust to be abolished with regulation handed to either Ofcom or a new public service broadcasting watchdog.

Dyke, giving the annual Royal Television Society Christmas lecture, also argued that Channel Five has no real chance of surviving as an independent broadcaster and should become part of the ITV family.

He said that the BBC Trust, the corporation's governance and regulatory body, is an expensive, lumbering entity that has found itself hamstrung by the impossible dual role of attempting to regulate and champion the corporation.

The [BBC] Trust is unduly slow and bureaucratic, expensive to run and creates inbuilt conflict within the organisation [which] has left the BBC without a supportive board or chairman and the director general without the 'cover' any chief executive needs, added Dyke.

In any organisation the chairman/chief executive relationship is all important and here the structure works against it being effective. Most of all, when the organisation is under attack, as it currently is, the chairman isn't free to defend it as he should because he's really the regulator, he said.

Dyke argued that it was more logical for Ofcom to regulate the BBC and a new board - with a non-executive chairman and executive and non-executive members - should be responsible for running the corporation.

Television viewers have lodged a record number of complaints with the TV censor over the quality of programmes.

Ofcom's chief executive Ed Richards blamed the steady rise on downmarket cable and satellite channels pushing the boundaries of good taste.

Figures released by Ofcom show that complaints about radio and TV shows have more than doubled in the past four years from 6,375 in 2005 to 13,521 in 2008.

The figures do not take into account the huge number of complaints for high profile cases such as the premium rate phone scandals and Celebrity Big Brother's 2007 race row involving actress Shilpa Shetty.

These sorts of incidents are termed as exceptional and recorded separately.

Speaking to the culture, media and sport select committee yesterday, Richards said the rise had been unexpected as it had been envisaged that the public would lower their standards as the number of channels increased. He told MPs these shows often have lower budgets and liked to challenge acceptable viewing.

Mr Richards said: One notion that a lot of people had when Ofcom was created was that people would gradually become more comfortable that there was a range of content and people would be comfortable in the diversity that there was in this market and complaints generally speaking would decline.

In fact, the opposite has become the case. There has actually been a steady rise in the underlying number of complaints - an awful lot of them generated by cable and satellite channels.

I think the increase in the volume of complaints has tended to come from the cable and satellite channels, where you are running channels with much lower budgets and probably examining the boundary of what is and what is not acceptable more regularly.

The X Factor is the show that has received the most complaints this year, with 5,975 already. This was followed by 1,154 for Big Brother, 708 for Britain's Got Talent and around 500 for Celebrity Big Brother.

The X Factor
ITV1, 10 and 11 October 2009, 20:00

The X Factor is a popular talent show contest broadcast weekly from late summer until Christmas. A panel of four judges and viewers' votes decide which act wins the prize of a recording contract. The early stages of the series are pre-recorded with the final stages broadcast live.

During the first live programme, broadcast on Saturday 10 October 2009 from 20:00, the contestant Danyl Johnson (Danyl) performed part of the song And I'm telling you I'm not going which was originally composed as a female lead vocal for the musical Dreamgirls.

The introduction to Danyl's performance included a set of video-taped interviews with Danyl, the judges and one member of the behind the scenes team which supports the performers. These interviews made clear that Danyl was going to perform a song originally written for a woman

In her critique of Danyl's performance, X-Factor judge Dannii Minogue made the following remarks: Danyl, a fantastic performance, a true X Factor performance turning a girl's song into a guy's song but, if we're to believe everything we read in the papers, maybe you didn't need to change the gender reference in it?

In response to this another judge, Simon Cowell (the mentor of Danyl), said: What? What did you say? Dannii Minogue then turned to Simon Cowell and repeated what she had just said: I said if we're to believe everything we read in the papers then he didn't need to change the gender reference in it.

Turning to the audience seated behind her she said: No? Don't believe it? Simon Cowell did not respond immediately to Dannii Minogue's remarks. Instead, Cheryl Cole gave Danyl her critique of his performance after which Simon Cowell then said: I think I'm missing something here? I think I just heard one of the best performances I ever heard in my life… (turning to Dannii and pointing a pen at her) you can forget playing any of those games with him, I'm not having that, this guy deserves a break. He sung his heart out, give him some credit.

During the following evening's Sunday Results programme, the judges were provided with the opportunity to comment on the previous night's events. Dannii Minogue and Simon Cowell said the following: I just want to say sorry to anyone that I may have offended last night with my comments. They were only said with humour and Danyl and I had been joking about it before the show…he definitely was not upset by my comments and I just wanted to let everyone know.

Simon Cowell: …I've got to say, I probably over-reacted a bit in the moment. You get very, very protective about your artists. I can say this on behalf of Dannii, she is the last person in the world who would ever do anything offensive like that, seriously…I spoke to Danyl afterwards, he took it in the spirit, it was fun, there was no offence intended and I think back to the show, it's over.

In total Ofcom received 3,964 complaints about the Saturday night broadcast. In summary, the majority of the complainants were primarily concerned that the remarks made by Dannii Minogue to Danyl were malicious and homophobic and based on newspaper reports about Danyl's sexuality. Others were concerned that Danyl was publicly embarrassed and humiliated on television. Finally some complainants expressed concerns about the fact that Dannii Minogue seemed to make a reference to a contestant's sexuality in a family programme broadcast before the watershed.

Ofcom considered Rule 2.3 of the Code: In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context. Such material may include, but is not limited to…humiliation, distress…violation of human dignity.

Ofcom Decision: Not in Breach

Ofcom noted that the complaints about Dannii Minogue's remarks on this edition of The X Factor fell into three categories: some complainants were offended by what they said was the homophobic nature of Dannii Minogue's comments; some viewers were offended on behalf of Danyl; and others were concerned that the subject of Danyl's sexuality was referred to at all on a programme like The X Factor.

Remarks allegedly homophobic and malicious

In considering these complaints under Rule 2.3, Ofcom considered whether in its view any potential offence caused by the broadcast of the remarks was justified by the context.

The X Factor is a competition in which performers voluntarily submit themselves to a critique each week by a panel of judges. This format is well established and often exposes contestants to criticism by the judges, sometimes accompanied by the audience's response. Ofcom also notes that when participating in the finals of the programme contestants voluntarily share to some extent certain aspects of their life stories with viewers. In Ofcom's view, it was not outside the established nature of the programme for an X Factor judge to make such a comment as Dannii Minogue's, especially in circumstances where the performer had placed information about his sexuality in the public domain.

In Ofcom's view Dannii Minogue's remark queried whether there was any need for him, as someone who had openly discussed his sexuality, to change the lyrics to the song.

Ofcom did not discern a pejorative or homophobic intent behind her comment. Ofcom did not therefore consider that the degree of offence likely to be caused by the broadcast of the remarks was sufficient to bring into question compliance with the Code.

Viewers offence on behalf of Danyl.

A number of viewers were concerned that the remarks made by Dannii Minogue caused Danyl public embarrassment and humiliation and were unfair to him.

In effect these complaints appeared to have been made on behalf of Danyl. While Ofcom's Code contains rules to protect people participating in programmes from unfair treatment and breaches of privacy (see Sections 7 and 8 of the Code), such complaints can only be brought by the person affected, i.e. the person or organisation alleged to have been treated unfairly or to have had their privacy infringed. In this case, because Danyl, or someone acting on his behalf, has not made a complaint to Ofcom, it has no grounds to consider the complaints in relation to Sections 7 and/or 8 of the Code.

However, Rule 2.3 of the Code envisages that offence can be caused to members of the public by the broadcast of humiliating and/or distressing material (or material which violates human dignity), which may arise from the alleged unfairness to, or infringement of the privacy of, others. Such matters relating to the alleged unfairness to, or infringement of privacy of a third party, can therefore, in some circumstances be considered under Section 2 of the Code without a complaint from the person involved as required under Section 7 or 8.

In considering Rule 2.3, Ofcom regarded the confirmation by Channel that the remarks by Dannii Minogue were not in any way pre-planned and were completely unscripted, as significant. Any evidence that there had been a concerted attempt by the programme makers to raise the issue of Danyl's sexuality on the live programme would have concerned Ofcom. It would have revealed a failure to consider the potential offence to viewers that such a discussion could cause. In the event, once the remarks were made, Ofcom found that Channel, the broadcaster and the programme makers were immediately alert to the potentially offensive nature of the material and took steps to limit the offence.

Further, it is the case that The X Factor is a well established programme, watched by millions of people. Contestants, particularly those who perform well and reach the final stages, become well known overnight. Details of their performances and personalities are analysed both on television and online, in chatrooms and webforums. Contestants can  expect to undergo a degree of personal scrutiny which will become increasingly intense the further they progress in the competition.

In this case however Ofcom accepts that, although not obvious to every viewer, details of Danyl's sexuality were sufficiently in the public domain before the remarks were made by Dannii Minogue to justify her references by context. Taking these factors into account, in the particular circumstances and context of this edition of The X Factor, the comments by Dannii Minogue were justified.

Reference to Danyl's sexuality

Ofcom considered that the remark by Dannii Minogue referred to Danyl Johnson's sexuality only indirectly. In Ofcom's view this reference was not likely to cause widespread offence, be understood by any young children who were watching, or shock viewers who came across this material unawares.

Not in breach of Rule 2.3

Shock jock Jon Gaunt has launched a blistering attack on the level of censorship in radio - claiming it will kill the medium and calling for Ofcom to be scrapped.

The Sun Radio presenter, who has been hauled over the coals by Ofcom five times and was famously fired from TalkSport for calling a counselor a Nazi, slammed the regulator as a bunch of busybodies and an unelected quango - adding, people don't need Ofcom when they have an off switch.

He also claimed that radio is self-censoring in the wake of Sachsgate, and that this fear of a scandal will eventually be the medium's undoing.

Do you know the worst thing about the Ross/Brand thing. It's censorship. And I don't mean censorship by other [organizations], I mean self-censorhsip, he said. That's what's going to kill radio.

Speaking at The Media Festival in Manchester, Gaunt claimed he has never been more heavily censored than when he worked at the BBC.

Top Gear
BBC2, 2 August 2009, 20:00

Top Gear is the BBC's long running entertainment series about cars, presented by Jeremy Clarkson and two co-presenters, James May and Richard Hammond.

This edition, the final show of the programme's thirteenth series, featured a spoof remake of an advertisement for a Volkswagen car which showed a man committing suicide with a gunshot to the head, followed by blood splattering out after the impact. The scene also included a depiction of the dead man lying in a pool of blood.

Fifty viewers contacted Ofcom to complain about this scene which they felt was too graphic and unsuitable for the time of broadcast (20:00) because children were watching. Ofcom noted that a subsequent repeat of the programme on 3 August 2009, in a 19:00 timeslot, removed the scene in which the man was seen shooting himself in the head.

This mock advertisement was one of six or seven such advertisements in this segment of the programme which employed exaggerated and absurd themes to draw attention to the Volkswagen Sirocco's perceived lack of speed.

Other advertisements contained references to the Bible, to mothers in law, to funerals, and to explosions. One advertisement included a scene in a hospital waiting room. An actor who had supposedly been in a car accident was seen holding what appeared to be his own severed arm from which blood spurted in large quantities for approximately two minutes.

Ofcom considered Code Rule 1.11 (violence to be appropriately limited before the watershed).

Ofcom Decision: Breach of Rule 1.11

Ofcom recognises that Top Gear is a series with an established audience, some of whom are children. It is known however for its adult orientated content and humour, which some viewers on occasions may find challenging. Viewers have in general come to expect these features of the programme.

Rule 1.11 is designed to protect children from depictions of violence and its after effects in programmes broadcast before the watershed. Therefore Ofcom considered whether children were likely to be viewing the programme. Audience data indicated that a significant number – 204,000 – younger viewers (those aged between 4 and 9 years) were watching the original broadcast at 20:00. Ofcom noted the BBC's decision to remove the image of the gunshot to the head from the programme broadcast in the earlier timeslot of 19:00, because they considered that a greater number of younger children may have been watching at this time. In fact, the audience figures showed that substantially less – 36,000 fewer younger viewers - watched the repeat.

Therefore it was the case that, whilst the programme of 2 August 2009 was not aimed specifically at children, the programme regularly attracts a strong child audience and the broadcaster should have taken this into consideration when including the scene in the later broadcast. The rule states that violence before the watershed must be appropriately limited and must also be justified by the context.

Firstly, Ofcom considered whether the violence was appropriately limited. Whilst the shooting scene was only a few seconds in duration, it was Ofcom's view that the spoof suicide was graphically depicted on screen with the man holding the gun to his temple and firing and blood splattering into the air after the bloody impact of the gunshot. Its realistic depiction meant that the violent imagery was not appropriately limited.

Ofcom then considered whether the scene was contextually justified. Context includes, but is not limited to: the editorial content of the programme; the service on which the material is broadcast; the degree of harm or offence likely to be caused; and the likely expectation of the audience. Firstly, in terms of the editorial content of the programme Ofcom took into account the established nature of Top Gear as described above. It also considered the BBC's argument that the comic exaggeration inherent in the spoof advertisement overall, and in this scene in particular, rendered it inoffensive and, in context, justifiable.

While scenes such as the hospital patient with the severed arm, described above, were so comically exaggerated and preposterous that they could be said to be justified by the overall context of the Top Gear series as described above, the depiction of suicide was of a distinct nature from this and so not justified by the context.

In Ofcom's view, it was precisely because Top Gear is an established entertainment programme which features a typical sort of humour that many viewers – including some adults watching with children - would not have expected such a violent scene to appear.

Ofcom noted there was no information before the spoof advertisement was shown which would have prepared viewers for its potentially disturbing nature and alerted adult viewers to the fact that it may be unsuitable for younger viewers.

These factors taken together meant that the scene exceeded audience expectations for the programme and led Ofcom - on balance - to conclude that there was no editorial justification for its inclusion. Breach of Rule 1.11

Babeworld TV, 28 May 2009, 23:30
Promotion of the www.babeworld.tv website address

Babeworld TV is a chat and adult-sex chat channel available without mandatory access restrictions in the adult section of the Sky electronic programme guide (Sky EPG). It broadcasts programming based on interactive daytime and adult-sex chat services: viewers are invited to contact on-screen presenters via premium rate services (PRS). After the 21:00 watershed in particular, the presenters dress and behave in a sexually provocative way.

Ofcom received a complaint that at around 23:30 on 28 May 2009 a female presenter, wearing only skimpy underwear including a G-string, showed clear and close-up images of anal and vaginal detail to camera.

Ofcom viewed a recording of the programme and noted that the presenter lay on her back with her legs up in the air and apart talking on the telephone. On five occasions she pulled aside the Gstring she was wearing to reveal briefly her vagina and anus. This occurred during a time period of just under three minutes.

In addition, whilst monitoring the material as described above, Ofcom noted that the broadcaster had included in its programmes on-screen promotional references to its website www.babeworld.tv. When accessed by Ofcom, this website featured sexually explicit R18 equivalent material which could be readily viewed without registration to the website. Although this pornographic material was not broadcast on-air, Ofcom was concerned that it appeared on a website being promoted on an Ofcom licensed service (Babeworld TV) from 21.00.

Ofcom considered rules:

• 2.1 (generally accepted standards)
• 2.3 (offensive material must be justified by context) of the Code.

Ofcom Decision: Breach of Rules 2.1 and 2.3

During the programme investigated of 28 May 2009, the female presenter was shown to move her left hand down to her crotch and then pull the string of her G-string to one side to show viewers clear, unambiguous and close-up shots of her vagina and anus. She repeated this action five times in just under three minutes.

In Ofcom's view it is a breach of generally accepted standards and offensive to broadcast such images on a service without mandatory access restrictions unless they are justified by the context.

According to Rule 2.3, context is judged by a variety of factors such as the editorial context of the service, the time of broadcast and the effect on viewers of coming across the material unawares.

Ofcom has previously and repeatedly published clear guidance regarding content broadcast by adult-sex chat services in the adult section of the Sky EPG, where the material is free-to-view and broadcast without mandatory access restrictions. This guidance stated that material of a sexual nature broadcast after the 21:00 watershed must be appropriately limited and justified by the context to ensure compliance with generally accepted standards. It has also repeatedly made it clear that the location of a channel in the adult section of the Sky EPG does not in itself provide sufficient protection from the potential to view offensive material or sufficient programme context for its broadcast.

As regards context, Ofcom noted that the programme was broadcast well after the 21:00 watershed. It judged however that the repeated and seemingly deliberate actions by the presenter to show her vagina and anus had either no, or a completely insufficient, justification in the context. Ofcom considered that the actions of the presenter were clearly not a one-off accident because she needed to act with deliberation to locate the string with her fingers and then move it to the side. Also the action was repeated five times in total. Ofcom questions the speed with which the onsite compliance officer reacted to the presenter's behaviour.

In Ofcom's view, even though viewers of adult-sex channels are used to a great extent to the type of material they show, the degree of offence capable of being caused by the broadcast of the very explicit images shown in this case was likely to be considerable. In Ofcom's view, this material would have exceeded the likely expectation of the audience, especially for viewers who may have come across it unawares.

For all these reasons, this content was offensive and not justified by context, and so breached generally accepted standards. It was therefore in breach of Rules 2.1 and 2.3 of the Code.

Ofcom asked Babeworld twice in July 2009 to comment on why it believed it was acceptable to make promotional references to the www.babeworld.tv website on its service when the site contained unprotected R18 equivalent material. The broadcaster finally responded on 13 August 2009, when it confirmed that R18 equivalent material had been removed but queried Ofcom's power to regulate promotional references made on air to websites.

The content of websites is not broadcast material, and therefore not subject to the requirements of the Code. However, any promotional references to websites made on air are broadcast content.

The promotional references to the www.babeworld.tv website on air breached generally accepted standards. They were offensive because of the unprotected and highly explicit sexual material they led to and were not in Ofcom's opinion justified by the context, such as only being broadcast after 21:00 on a service in the adult section of the Sky EPG. They were therefore in breach of Rules 2.1 and 2.3 of the Code.

In view of the serious and repeated nature of these contraventions of the Code, Ofcom reviewed carefully whether they should be considered for referral to the Content Sanctions Committee. On balance Ofcom decided not to do so on this occasion. However, Ofcom will seriously consider further regulatory action should Babeworld breach the Code in the future.

Islam in Focus
Peace TV, 31 July 2009, 16:10

Peace TV is an international satellite television channel, which describes itself as providing Islamic spiritual 'edutainment'.

Islam in Focus consisted of a public lecture (the Lecture) in front of an audience, in English, by a religious speaker, Hamood Ashemaimry.

In the Lecture, entitled How to build a righteous family, the speaker set out, in his opinion, what the rights are of husbands and wives, in the context of creating a righteous family from an Islamic viewpoint.

A complaint objected to part of the Lecture which, it considered, suggested that it would be permissible for husbands to beat their wives. During the Lecture, the speaker said the following:

[A husband] should not beat [his wife] first. He should not beat her face or beat her violently. Many people misunderstand this, you know, three solution for, you know, evil women or a evil wife, or wife who is not listen to her husband. You advise her first; you disregard her in bed; you bring a mediator from her family – somebody between you to sort the problem. And then if she doesn't – then you beat her. But beat her – it doesn't mean to break her ribs. Beat her, tap her on her shoulder. Just let her feel you're angry. You know the worst thing – even they listen to me, the sisters – the worst thing for a lady, just disregard her in bed, for one week, or two. This is a good solution for a quarrel wife. Don't go to beating first of all. Try this, it works.

Ofcom asked Peace TV for its comments under the following Rules of the Code:

• Rule 2.3: In applying generally accepted standards broadcasters must ensure that material which may cause offence must be justified by the context
• Rule 2.4: Programmes must not include material, which taking into account the context, condones or glamorises violent, dangerous or seriously antisocial behaviour and is likely to encourage others to copy such behaviour.

Ofcom Decision: Breach of Rules 2.3 and 2.4

Ofcom notes that a number of its licensees will broadcast programming that will derive from a particular religious or spiritual viewpoint, and that such programming will include advice to followers of particular faiths as to how to lead their lives. It is therefore unsurprising if at times such advice might cause offence to different sections of the audience. Ofcom therefore recognises that it would be an unacceptable restriction on a broadcaster's freedom of expression to curtail the transmission of certain views, just because they cause offence.

However, in broadcasting such content, broadcasters must be aware of the need to ensure compliance with the Code.

In particular, in one segment of the Lecture, the speaker stated that it is permissible to beat a wife in certain circumstances. Ofcom considered whether this reference complied with Rules 2.3 and 2.4 of the Code.

Even though the broadcaster stated that the speaker said that a husband should only tap his wife on the shoulder and not beat her face or beat her violently…or break her ribs, Ofcom considers that the speaker was clear that some form of beating was acceptable – as a last resort after other tactics had been used to resolve a dispute with a wife. The passage was clear that a husband could use physical violence.

Ofcom rejected Peace TV's representations that just because some of the advice given by the speaker advocated a husband treating his wife with respect, that it would follow that he would not be advocating actions to cause a wife any physical harm. The speaker used the verb beat three times and beating once in the context of a husband chastising his wife. It considered that the speaker was clear in his advice, namely, that he was encouraging what could be portrayed as domestic violence in certain circumstances. Ofcom considers that the advice given to viewers that it was permissible for a husband to beat his wife, even if according to the broadcaster it was to be only in certain circumstances, and undertaken with restraint, would be offensive to many in the audience.

Further Ofcom considered that this offensive material could not be justified by the context. This was because of for example: the lack of any mediating or counteracting views, within the programme, to the speaker's advocacy of beating; and that, in general, the high likelihood that many in a UK audience would find any advocacy and support at all of domestic violence – which is of course potentially criminal under UK law – to be highly offensive. The programme was therefore in breach of Rule 2.3.

With regard to Rule 2.4, the relevant test is that content must not: firstly, taking into account the context, condone or otherwise glamorise violent, dangerous or seriously antisocial behaviour; and secondly, be likely to encourage others to copy such behaviour. Ofcom considered these two issues in turn.

Ofcom noted Peace TV's comments that it would not have been possible for the Lecture to have shown how to build a Righteous Family (and by extension a Righteous Society and a Peaceful World) if it had included material that condoned or glamorised violent, dangerous or seriously antisocial behaviour.

However, Ofcom considered that the stated subject matter and aim of the Lecture did not obviate the fact that in this case the speaker was unambiguously advocating a form of violent behaviour i.e. domestic violence. This and the fact that the Lecture was a serious, religious lecture aiming to provide spiritual guidance, could not, in Ofcom's view, give enough contextual justification to suggest the speaker could not be reasonably portrayed as condoning violent behaviour.

In addition, Ofcom considered that the advice on beating wives within the Lecture: was delivered in a serious and measured manner by the speaker; and on a channel specialising in dispensing Islamic spiritual advice. There was therefore a strong likelihood that such advice could be construed as likely to encourage others to copy such behaviour.

Given the above, Ofcom considered that the programme was in breach of Rule 2.4.

Ofcom Press Release:

Changes to the Broadcasting Code rules for promotion of Premium Rate Services (PRS)

Revised rules to strengthen audience protection in the use of premium rate telephone services in TV and radio programmes have been announced.

The changes to Ofcom's Broadcasting Code, which will come into effect early next year, mean that premium rate services (PRS) may only be included in editorial TV and radio programmes, such as phone-in competitions and votes, where they are related to the main editorial purpose of the show. This move will not affect shows such as Who Wants to be a Millionaire?, Big Brother or competitions within shows.

Where broadcasters wish to promote PRS services more extensively than permitted under the revised Broadcasting Code rules, then this should be considered as falling within the category of advertising and will be regulated under the Advertising Code. The changes follow consultation in 2007 and 2008, and will reinforce the strict distinction between editorial content and advertising in programming.

Channels that are likely to be affected by this are Participation TV (PTV) channels that are based on promotion of PRS. These include specialist quiz, adult chat and psychic channels.

Next Steps

The Advertising Code currently limits advertising of PRS of a sexual nature to encrypted channels. It also restricts the promotion of PRS featuring live personal psychic services. These services are featured on Adult Chat PTV and Psychic PTV.

New research has found that promotion of these particular services on TV is generally acceptable to viewers in their current form, where they are appropriately scheduled, clearly labelled and identifiable in an appropriate section of an electronic programme guide (EPG), as this minimises the risk of offence from chancing upon them.

Ofcom proposes updating the Advertising Code to allow promotion of these particular services on television to continue, subject to further conditions, and are now consulting on these changes.

Ofcom Proposals

Ofcom include 4 options for consideration in the consultation but have identified one of these as their preferred solution:

Option 4 – Allow promotion of PRS of a sexual nature on dedicated teleshopping channels subject to scheduling restrictions and labelling rules, but spot advertising remains only on encrypted channels. Under this option, the risk of offence for viewers from spot advertising on general channels would continue to be prevented.

Any services featuring promotion of PRS of a sexual nature would be clearly labelled and positioned as “Adult” services including adult content, lessening the risk of unwarranted offence and allowing viewers to choose to exclude such services from viewing.

With such labelling information available, a scheduling restriction of 9pm (to limit risk of exposure to minors) would therefore be sufficient. Consumers would continue to have access to services and benefit on the same basis as today.

However, under the labelling rules proposed, broadcasters operating on Freeview would not currently be able to carry promotion for PRS of a sexual nature, since Freeview does not currently offer clear labelling of channels in a separate “Adult” EPG section.

Consultation

See Participation TV Consultatation [pdf]

Closing date for responses is 15th January 2010

Elite Days
Elite TV, 10 July 2009, 11:30

Elite Days is a daytime chat programme broadcast without access restrictions. It is located in the adult section of the Sky EPG on the service Elite TV. Viewers can call a premium rate telephone number and talk to an onscreen female presenter. Viewers see the female presenters engaged in conversation but cannot hear what is being said as music is played over the images. At certain intervals the presenters switch on a microphone and speak directly to viewers to encourage them to call into the premium rate telephony service (PRS) number.

Ofcom received a complaint that the programme featured a promotional reference to the website, www.elitetvonline.com, and that this website included strong sexual material which was available without any protections. Ofcom accessed the website after the complaint was made and noted that it contained some strong sexual images equivalent to BBFC R18-rated material (R18-rated equivalent material). This material could be easily accessed by simply clicking to confirm that the user was over 18.

Although this R18-rated equivalent material was not broadcast on-air, Ofcom was concerned that it appeared on a website being promoted during a daytime interactive chat programme.

Ofcom considered:

• Rule 1.2 – In the provision of services, broadcasters must take all reasonable steps to protect people under eighteen.
• Rule 1.3 – Children must also be protected by appropriate scheduling from material that is unsuitable for them.
• Rule 2.1 – Generally accepted standards must be applied to the 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.
• Rule 2.3 – In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context.

The broadcaster informed Ofcom that it has decided to remove any adult material from the unregistered area of its website.

Ofcom Decision: Breach of Rules 1.2, 1.3, 2.1 and 2.3

While the content of websites is not in itself broadcast material, and therefore not subject to the requirements of the Code, any on-air promotional references to websites are broadcast content. Such references must therefore comply with the Code. In this case Elite TV broadcast during the late morning a promotional reference to its website, www.elitetvonline.com, that contained strong sexual images that Ofcom considered to be equivalent to R18-rated material. There were no protections on the website – for example prior registration before being able to view - and therefore this material could have been accessed easily by under-eighteens.

The promotion on television of this website was therefore of concern to Ofcom. Rules 1.2 and 1.3 require broadcasters to take reasonable steps to protect people under eighteen and ensure that children must be protected by appropriate scheduling from unsuitable material. Rules 2.1 and 2.3 require broadcasters to comply with generally accepted standards so as to provide adequate protection for members of the public from offensive material.

It is Ofcom's view that websites that contain unprotected R18-rated equivalent material must not be promoted on an Ofcom licensed service. This is to ensure adequate protection for the under-eighteens and compliance with generally accepted standards.

Appropriate protection on a website would be, for example, the need to purchase access to the R18 material by using a credit card or similar means that allows an age check to be done. In this case no such protections were present on the website and therefore Rules 1.2 and 1.3, and 2.1 and 2.3 were contravened.

Bang Babes, Tease Me 3, 20 June 2009, 01:45 to 02:30
Bang Babes Tease Me, 23 June 2009, 01:00 to 03:00

Bang Babes is an adult sex chat service, available freely without access restrictions on the channel Tease Me and Tease Me 3. Both channels are situated in the adult section of the Sky electronic programme guide (EPG). The channels broadcast programmes after the 21:00 watershed based on interactive adult sex chat services: viewers are invited to contact onscreen female presenters via premium rate telephony services (PRS). The female presenters dress and behave in a sexually provocative way.

Tease Me 3, 20 June 2009, 01:45 to 02:30

The complainant said the programme showed the presenter miming vaginal and anal masturbation, and that overall the sexual content was considered to be in excess of the material generally available on a channel without restricted access at 02:00.

Ofcom noted that between 01:45 and 02:30 the broadcast showed a presenter wearing a very short skirt and a black skimpy thong. She was also wearing a black top which she pulled down to expose her breasts. The presenter was shown a number of times lying on her back with her legs spread apart, heavily thrusting and gyrating in a sexual manner and simulating sex.

At various intervals viewers were shown prolonged and close up shots between her legs, and anal and genital detail was revealed. During the broadcast the presenter bunched up her knickers to reveal outer genital detail and often mimed or simulated masturbation. The broadcast included images of the presenter spanking herself, licking her breasts and positioning her buttocks to the camera while she touched her anal and genital area.

The presenter also said to viewers: Hello boys and girls, my name's Victoria and you can join me right now for some very naughty fun… that's right boys, you can have me any way you want me tonight boys so come on get right behind me [presenter shown thrusting buttocks to camera] and really start giving it to me.

Tease Me, 23 June 2009, 01:00 to 03:00

The complainant here was concerned that the presenter spanked her buttocks and close up shots of her vaginal and anal areas were shown while she was only wearing a thong. Overall the complainant believed the sexual content included in this programme was excessive.

Ofcom noted that between 01:02 and 01:16, and 02:49 and 02:59, the broadcast showed a female presenter wearing a red thong and no top. At various times the presenter positioned her buttocks to camera to reveal anal and genital detail and placed her fingers on her anal area. The broadcast showed the presenter spanking herself and pulling her buttocks apart to reveal her anus. The presenter was also shown with her legs apart touching her genital area and simulating masturbation.

On one occasion the presenter licked and dribbled saliva over her naked breasts and rubbed saliva on her nipples. She also poured and massaged oil onto her breasts and buttocks.

Ofcom considered:

• Rule 2.1 (generally accepted standards)
• Rule 2.3 (material which may cause offence must be justified by context)

Ofcom Decision:  In breach of Rules 2.1 and 2.3.

It is a requirement of the Code that content which is considered to be adult-sex material must only be broadcast between 22:00 and 05:30 and have a mandatory PIN protection system, or other equivalent, in place (Rule 1.24). In this case, Ofcom carefully considered whether the content complained of in the two broadcasts was 'adult-sex' material. It concluded that on balance they were not.

This decision was reached taking all the relevant circumstances into account, but was based primarily on the facts that: the presenter in each case was alone, and therefore did not engage in any inappropriate sexual acts (whether real or simulated) with others; and the shots of the presenters miming or simulating masturbation were either relatively brief or inexplicit, as were the sequences of the presenter spitting and putting oil on, and caressing, her breasts

Ofcom therefore considered these two cases only under 2.1 and 2.3 of the Code.

Tease Me 3, 20 June 2009, 01:45 to 02:30

In terms of the content of this broadcast, Ofcom considered it to be sexually explicit. On a number of occasions the presenter positioned herself in front of the camera with her legs wide apart and heavily gyrated in a sexual manner for prolonged periods of time. Given the thong style underwear the presenter was wearing, and the close up nature of some shots, Ofcom was particularly concerned that there were occasions when her anal and labial areas were shown in intrusive detail. The presenter appeared to simulate masturbation at various points in the broadcast, as she was seen rubbing her anal and vaginal area, and she also used some sexually explicit language. In Ofcom's view the actions of this particular presenter were highly sexualised and sexually provocative, and a number of the images were filmed in a prolonged and intrusive manner.

Tease Me, 23 June 2009, 01:00 to 03:00

Ofcom also considered the content of this broadcast to be sexually graphic. The presenter, who was only wearing a skimpy red thong, engaged in a number of sexually explicit acts. At various times the presenter positioned her buttocks to camera so that her anal and labial areas were shown at close range and in intrusive detail. She also pulled her buttocks apart to reveal her anus and touched her anal area in an intimate way at various times in the broadcast. Ofcom was concerned about the sexual explicitness of this material irrespective of the time at which it was broadcast. In Ofcom's view the actions of this particular presenter were highly sexualised and sexually provocative, and filmed in an intrusive manner.

Given the strength of the material, Ofcom considered that this content clearly had the potential to cause offence. Therefore its treatment by the broadcaster required justification by the context to provide adequate protection for viewers.

Ofcom took into account all the relevant contextual factors including, for example, the explicit sexual content, the nature of the channel, and the time of broadcast. In Ofcom's opinion given the strength of the material shown, it would have exceeded the likely expectation of viewers watching a channel without access restrictions.

Ofcom was also concerned by the degree of offence likely to be caused to viewers watching at this time and the significant effect this material would have had on those who may have come across it unawares. There was no sufficient editorial justification for the broadcast of these strong sexual images. Also in Ofcom's view factors such as the channel being in the adult sector of the EPG and the content being broadcast well after the watershed did not justify the broadcast of this material. This has been made repeatedly clear by Ofcom in various published decisions.

Therefore Ofcom concluded that this content was not justified by the context and breached Rules 2.1 and 2.3.

Note to Adult Sex Chat Broadcasters

Broadcasters of adult sex chat services without mandatory access restrictions must take care to ensure that intrusive or detailed shots of presenters' anal and genital areas are not broadcast.

Ofcom's weekly log of complaints received:

Tuesday 20 October 2009 to Monday 26 October 2009

Question Time BBC 1, Thursday 22 October 2009 : 290
The X Factor ITV1, Saturday 24 October 2009 : 62
The X Factor ITV1, Sunday 25 October 2009 : 18

Big Brother's Little Brother Channel 4,
2 August 2009, 12:40

Big Brother's Little Brother (BBLB) is a pre-watershed sister programme to Channel 4's main Big Brother series (BB). It is screened live on weekdays at 18:00 and on Sunday lunchtimes. It provides an overview of the latest events in the Big Brother house and interviews with evicted housemates. Ofcom received one complaint from a viewer that two housemates who had recently left the house, Noirin Kelly (Noirin) and Isaac Stout (Isaac), used the words shit and fuck respectively.

Ofcom considered Rule 1.14 which requires that: The most offensive language must not be broadcast before the watershed.

Ofcom Decision: Resolved

Rule 1.14 requires that the most offensive language must not be broadcast before the watershed. Ofcom noted on this occasion that the broadcast of a clear example of this language ( fuck), whilst unfortunate, occurred during a live broadcast and that the presenter and guest both immediately apologised for it. Ofcom also acknowledges that the word shit is considered only mildly offensive and a toilet word (-1-) and that its use here in a live programme transmitted before the watershed, was isolated, and that the presenter and guest again apologised immediately for its use. Channel 4 also broadcast an on-air apology to the audience for the use of offensive language in the programme and subsequently reiterated that apology to viewers by way of its response to Ofcom.

Given the immediate and appropriate action taken by the broadcaster, we consider the matter resolved.

Taamulat fiddine wa Siyassa
Al Hiwar TV
22 February 2009

Al Hiwar TV (Al Hiwar) is a channel that broadcasts programmes in Arabic to Arabic-speaking audiences across Europe including those of Tunisian origin.

On 26 February 2009 Ofcom received a complaint that an offensive comment was made in the programme by a guest who was being interviewed. He was Rachid Ghannouchi, the leader of an Islamic Tunisian opposition political party, En-Nahda. The complainant alleged that Ghannouchi said:

… the term terrorist here has a splendid meaning…that is why I admire the Al-Quassam missiles…It is a civilised weapon, in the sense that it enables the expected aim to be attained…

By way of background, the complainant said that the famous al-Qassam missiles of Hamas have killed more than ten people (including children), injured over a hundred people, and caused the flight of thousands of inhabitants from Sderot, an Israeli town near the Gaza strip.

Ofcom sought an independent English translation of the relevant section of the programme. It noted that Ghannouchi first quoted some verses from the Qu'ran. He interpreted one which contains the phrase to strike terror into them as meaning:

Ghannouchi: that preparing power and strength does not aim at dominating and attacking but at keeping aggression away. In fact, the phrase 'to strike terror into them' is amazing because preparing power and strength does not mean to kill the others but rather to prevent them from attacking or carrying on aggression against you. That is why I quite like the Qassam rockets. During the war[referring to the Israeli incursion into Gaza] they did not kill anyone on the other side, they scared them only. It is a civilised weapon as it serves the purpose, it creates balance in power… Allah says not to exaggerate killing. Excess killing is not the purpose of war or jihad if aggression can be stopped by a Molotov bomb or Qassam rocket in order to create intimidation and balance in power because peace is the essence of Islam.

Ofcom considered Rule 2.3 (in applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context).

Ofcom Decision: Breach of Rule 2.3

In a discussion on how and when war is justified by Islam, where Ghannouchi commented:

Ghannouchi: When one attacks you, when the other one becomes aggressive, you have no choice but to defend yourself because Islam is a religion of instinct, it allows human beings to defend themselves. However, the purpose of defence itself is to go back to the original state which is that of peace. That is why, chapter Al-Anfal says: 'against them make ready your strength to the utmost of your power, including steeds of war, to strike terror into (the hearts of) the enemies…'(Verse 60) the next verse however, says: 'but if the enemy incline towards peace, do thou (also) incline towards peace, and trust in Allah…' which means that preparing power and strength does not aim at dominating and attacking but at keeping aggression away. In fact, the phrase 'to strike terror into them' is amazing because preparing power and strength does not mean to kill the others but rather to prevent them from attacking or carrying on aggression against you. That is why I quite like the Qassam rockets. During the war they did not kill anyone on the other side, they scared them only. It is a civilised weapon as it serves the purpose, it creates balance in power because Allah says not to exaggerate killing. Excess killing is not the purpose of war or jihad if aggression can be stopped by a Molotov bomb or Qassam rocket in order to create intimidation and balance in power because peace is the essence of Islam.

In response, the presenter said:

Presenter: …one should defend himself against Muslim and non-Muslim aggressors…

Ofcom therefore noted that the programme did not query the remarks made by Ghannouchi and, in fact, appeared by implication to endorse them.

Ofcom acknowledged that the full context of this programme was to promote a wider understanding of peaceful political participation from an Islamic perspective. However, included within the programme were a number of unchallenged remarks which had the potential to cause offence to viewers by virtue of the fact that they included praise for Molotov bombs, and Qassam rockets which in the months before the programme was broadcast, had been responsible for a number of deaths and injuries.

Whilst Rule 2.3 of the Code states that offensive material: May include…offensive language…, the use of such potentially inflammatory language, in particular referring to Qassam rockets as a civilised weapon went beyond the overall premise of a programme that the broadcaster has clearly stated was about peace and to dissuade the youth from resorting to violence in pursuit of political reform. Given the programme essentially permitted a guest in a discussion to praise the use of bombs, without challenge, Ofcom believed that there was insufficient justification for including the comments. As a consequence, the broadcaster failed to comply with generally accepted standards in breach of Rule 2.3 of the Code.

More children than ever before can now access the internet directly from their bedrooms, new Ofcom research reveals today.

Our figures show that 35% of 12-15s and 16% of 8-11s now have web access in their bedrooms. That's up from 20% and 9% respectively in 2007.

At the same time, some 60% of 12-15s and one third of 8-11s say they use the internet mostly on their own. Internet controls. One in five of 5-7s also say they use the internet without an adult in the room.

Nearly half of parents whose children use the internet at home say they have internet controls or filtering software in place.

The research also reveals that nearly three quarters of all parents are concerned that other people could locate their child through their mobile phone using location based services. A location-based service uses technology to find your mobile phone's position and provide services related to where you are.