Ofcom received complaints about the over explicit sexual nature of output broadcast on TVX during both encrypted and free-to-air elements on 8 June 2007 from 22:00.

This was during a live ‘babe’ programme. The complaints, from competitor broadcasters, suggested some of the encrypted output was equivalent to material that would be classified as ‘R18’ by the BBFC

The encrypted material transmitted under PIN encryption on 8 June 2007 between 22.10 and 22.40 featured two naked female presenters engaging in very explicit sexual acts. This included:

• frequent and prolonged masturbation, shown in close-up
• explicit scenes of oral sex
• explicitly depicted scenes of vaginal penetration by fingers and dildos.

The ten minute free-to-air trailer transmitted immediately prior to the encrypted output on the same night featured the same presenters. During this section one of the ‘babes’ removed her knickers and was then depicted in relative close up touching and being touched between her legs. Labial detail was apparent.

Throughout, the ‘babes’ invited viewers to subscribe to the encrypted service using explicit language, such as: …I can’t wait to bring my head in between those luscious thighs and get sucking on that juicy pussy!” and …If you wanna see me fucking this pussy I‘ve got all kinds of toys…. that you can see me fucking Tiffany with…

The Licensee immediately accepted that part of the live programme transmitted on 8 June 2007 from 22:10 breached Rule 1.25 of the Code i.e. it was the equivalent of ‘R18’-rated material. The transmission of content equivalent to BBFC-rated ‘R18’-rated material is not permitted under Rule 1.25 of the Code.

Portland also accepted that the images broadcast during the free-to-air promotional trailer were in breach of the Code. However, they did not accept that the language during the free-to-air promotional trailer breached the Code.

Ofcom concluded that the encrypted material was equivalent to ‘R18’ content because of the sexual explicitness detailed above. It therefore recorded that the broadcast was in breach of Rule 1.25 of the Code.

Ofcom also decided that free-to-air material was so explicit, especially the visual images, that it was ‘adult-sex’ material. Accordingly Rule 1.24 applied, which meant it should have been broadcast under encryption. Since however this material was not protected by encryption and other measures required by Rule 1.24, it contravened this Rule. In view of this material being shown free-to-air, the Executive also decided that it breached Rules 2.1 and 2.3. These require broadcasters to protect viewers from material that is harmful or offensive and which cannot be justified by the context.

In Ofcom’s view, the breaches were sufficiently serious that the case should be referred to the Committee for consideration of a statutory sanction of £25,000.

Except for the various mitigating factors, and in particular the swift action to discipline the production staff responsible and improve compliance, the Committee would have imposed a higher financial penalty.

Karen Murphy of the Red, White & Blue pub in Portsmouth, has appealed against her conviction for screening Premiership football via Greek channel Nova Supersport.

But Lord Justice Stanley Burnton and Mr Justice Barling decided to refer the case to the European court.

The case against foreign satellite suppliers AV Station and QC Leisure has also been referred to Europe.

The written judgement said: If the geographical restriction is held to be unlawful, it may be difficult to see why the subscription charge exacted by BSkyB for its service (to which the Appellant did not subscribe) should be treated as ‘applicable’ to the Nova programme screened by the Appellant.

If it is not so applicable then the offence under s. 297(1) would not be established. This may need to be the subject of further argument depending on the outcome of the reference which we propose to make.

Section 297 (1) states that a programme has been received dishonestly with intent to avoid payment of any charge applicable.

Murphy’s lawyer Paul Dixon, of Molesworth Bright and Clegg, claimed it was a powerful judgement. The FA Premier League should immediately abandon its campaign of criminal prosecutions against honest, decent and hardworking publicans who purchase and use legitimate European satellite television decoder cards in their pubs.

However, a Premier League spokesman said the prosecutions would continue: The use of foreign satellite equipment has not been legitimised. Lord Justice Pumfrey's December judgment remains valid as does the use of section 297. It remains the case that Mrs Murphy has been found guilty of a criminal offence.

When the European Court has reached a decision the matter will then have to return to the High Court here for a decision after which it will be open to either side to mount appeals. The process could take up to two years.

Red Hot TV Trailer
Red Hot TV, 13 February 2008, 20.00 – 22.00

Red Hot TV is a subscription-based, i.e. encrypted, adult service. In common with most such services it is promoted with free-to-air trailers broadcast on a loop from 20.00 onwards.

Throughout a trailer, broadcast between 20.00 and 22.00, verbal and on-screen text references were made to the broadcaster’s websites www.redhottv.com and www.televisionx.com. From 20.00 verbal references to the websites were made primarily to encourage subscriptions to the broadcast service. However, the accompanying on-screen text reference to the websites remained on-screen for the majority of the trailer. Further, after 21.40 the trailer included several additional verbal references specifically promoting the “uncut” and “uncensored” content on the websites, in particular for Red Hot WebTV.

Ofcom received a complaint that the websites featured sexually explicit, “hardcore pornography" which could be readily viewed without registration to the websites.

Although this material was not broadcast on-air, Ofcom was concerned that it appeared on a website being promoted on the Red Hot TV trailer pre-watershed from 20.00.

Ofcom Decision

Red Hot TV promotes its websites within its licensed TV service as a means for viewers to subscribe to the service and to access previously broadcast programming and unedited versions of these programmes. Ofcom’s concern in this case was whether the content of these websites was suitable for promotion pre-watershed and whether the more explicit imagery was suitable at all to be promoted, even indirectly, on a licensed television service.

While the content of the websites is not in itself broadcast material, and therefore not subject to the requirements of the Code, any on-air references to the websites are clearly broadcast content. Such references must therefore comply with the Code.

However, when accessed – merely by clicking “enter” on the site’s front page – the two websites contained extremely explicit material (equivalent to BBFC ‘R18’-rated content). This did not require registration to view and could be seen by under-eighteens. Registration and credit card verification was only required if the user wished to download the material in full. The promotion on television of this website was therefore of serious concern to Ofcom.

Ofcom concluded that the inclusion of promotional references to a website containing highly explicit ‘adult’ material on a service regulated by Ofcom was a breach of the Code

Ofcom wishes to emphasise that it does not regulate the content of websites such as www.redhottv.com but that it does regulate on-air references to where such content may be found. It is therefore able to require a broadcaster to remove such a reference.

Further, and mindful that the trailer for Red Hot TV – and other ‘adult’ services’ trailers – is only available in the ‘adult’ section of the electronic programme guide (“EPG”), it is Ofcom’s view that references to a website for genuine subscription purposes, and not for the promotion of any other website content, may be an acceptable way to publicise a service that Ofcom requires to be encrypted. But where websites are used to enable subscription, the viewer should be taken directly to the relevant page(s) (otherwise Ofcom’s rules on the undue promotion of goods and services may be infringed) and the websites must not contain unprotected R18-standard material.

Therefore it is Ofcom’s view that any ‘adult’ websites promoted on an Ofcom licensed service, even those that take the viewer to a subscription-only page, should not be broadcast until after 21.00 post-watershed. In no circumstances may such websites contain unprotected R18 material if they are promoted on a licensed service. Appropriate protection will be, for example, the need to purchase access to the stronger material by using a credit card or similar means that allows an age check to be done.

In Breach.

TV censors Ofcom have fined Square 1 £175000 for a scene on a free to air babe channel. Square 1 operate the channel Smile TV which has since renamed to Blue Kiss TV.

Ofcom received a complaint about the explicit sexual nature of the content broadcast on Smile TV on 22 May 2007 at around 22.25. The complainant referred to shots in which a female presenter appeared to insert her fingers into her anus several times and masturbate for a number of minutes.

In the material complained of the presenter wore only a thong and appeared to carry out the actions described by the complainant. There were also prolonged shots of her lying on her back, with her legs wide apart in front of the camera, apparently masturbating through the thong. She also encouraged viewers to call her by saying, for example: Well, I tell you what, you’re not lasting a second tonight guys. Maybe it’s all my oil on my shaved minge…If you’d like to hear some explicit chat tonight, while you’re having a good old tommy tank… [rhyming slang for ‘wank’ – i.e. masturbation].

Ofcom concluded that the sexual content on the programme was so explicit and prolonged, particularly the visual images, that it was ’adult-sex’ material. This meant it fell within Rule 1.24 and accordingly should have been broadcast under encryption. The programme was not protected by encryption or in line with the other requirements of Rule 1.24 and therefore the broadcaster had breached Rule 1.24 of the Code.

Given that the material appeared on a free-to-air unencrypted channel, Ofcom also decided that it breached Rules 2.1 and 2.3 of the Code. These require broadcasters to protect viewers from material that is harmful or offensive and which cannot be justified by the context. In Ofcom’s view the breaches were sufficiently serious that the case should be referred to the Committee for consideration of a statutory sanction.

For reference:

Rule 1.24: Premium subscription services and pay per view/night services may broadcast ‘adult-sex’ material between 2200 and 0530 provided that in addition to the other protections named above:

• there is a mandatory PIN protected encryption system, or other equivalent protection, that seeks satisfactorily to restrict access solely to those authorised to view
• and there are measures in place that ensure that the subscriber is an adult

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

Anti-terrorism investigators in Paris are probing threats against a leading French cable TV channel over pornographic films it airs that can be viewed in North Africa, a judicial official said.

Canal-Plus, France's first pay-TV channel, received letters from one or more people claiming to be Muslim and threatening to blow up its headquarters if it continues to broadcast once-a-month adult films, the official said.

Canal-Plus filed a legal complaint about the threats late last month, which prompted the anti-terrorist probe. No other details about the threats were available.

Canal-Plus and its sister channels show a range of programming, much of it family-friendly. It can be viewed via satellite in largely Muslim North Africa, where French is widely spoken.

As a new broadcaster in 1984, Canal-Plus introduced hardcore films on the first Saturday of the month to build its image as a more exciting alternative to France's traditional channels.