Freedom of Information

The purpose of this thread is to publish Ofcom respomses to freedom of information requests. For clarity the original request and useful discussion with Ofcom should be included, but to keep it short and searchable please keep discussion in other threads. Thanx.

In December 2010 for the first time ever Ofcom published "guidance on the advertising of telecommunications-based sexual entertainment services and PRS daytime chat services".

Among other things this stated that adult chat broadcasters should "at no time broadcast shots of presenters using liquids of a sort or in a way which suggests the liquid is ejaculate".

Curious to know the background for this I searched the Ofcom website for relevant decisions but found none whatsoever. There was no reference in any of the published research either. A keyword search of the website reveals mentions in bulletin 185 (4 July 2011) and 186 (18 July), a sanction decision against Just4Us/Playboy/Redlight for shows in April 2011 and a sanction decision against Look4Love/Babestar in 2006. Bulletin 86 took exception to Russell Brand saying "time to find out who has pierced the hymen of awareness to ejaculate success into the uterus of popular" and bulletin 130 said "masking of genitals, acts of penetration and ejaculate does not relieve the broadcaster of its responsibility to ensure that the material meets".

In other words during 6 years of operation research and rule making the subject of saliva mimicking ejaculate only occured as a passing mention on 2 occasions when there were more serious breeches (bulletins 130 185 and 186) and for purile language by an over-rated commedian acting half his age.

Had Ofcom received complaints specifically about fluid resembling semen/ejaculate? Was there any specific research? I submitted this request on 25 June 2011

Wanderer Wrote:What reseach has there been into the acceptability or otherwise of what appears to be semen/ejaculate and implied ejaculation on televisuion? How many complaints have there been since Ofcom was created? What rules are there about this? What decisioms have been made about inestigated programs?

On July 22 Ofcom replied

Ofcom AA Wrote:22 July 2011
Dear xxxx
Freedom of Information: Right to know request

Thank you for your request for information from Ofcom, which we received on 25 June 2011.
You said:

What research has there been into the acceptability or otherwise of what appears to be
semen/ejaculate and implied ejaculation on television? How many complaints have there
been since Ofcom was created? What rules are there about this? What decisions have been
made about investigated programs?

In answer to your questions:



In 2005 and 2009 Ofcom conducted research into attitudes towards sexual material.
The research „Attitudes towards sexual material on television‟ was published in June
20091 and „Language and Sexual Imagery in Broadcasting: A Contextual
Investigation‟ was published in September 20052. Ofcom also publishes an annual Media Tracker survey which includes questions about sexually explicit material on television. Research such as this provides Ofcom with an understanding of what viewers consider to be generally accepted standards regarding material of a sexual
nature on television.
There have been in the region of 66 complaints about „what appears to be semen/ejaculate and implied ejaculation‟ on television since Ofcom‟s inception. There have also been a number of complaints about references to ejaculation in programmes, for example comedy and sex education programming.



1 - http://stakeholders.ofcom.org.uk/binarie.../sextv.pdf
2 - http://stakeholders.ofcom.org.uk/binarie...nguage.pdf

The rules that would likely apply to this type of content would be as follows:

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.

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.

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.

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 se vices of harmful and/or offensive material

2.3 In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context (see meaning of “context” below). Such material may include, but is not limited to, offensive language, violence, sex, sexual violence, humiliation, distress, violation of human dignity, discriminator y treatment or language (for example on the grounds of age, disability, gender, race, religion, beliefs and sexual orientation). Appropriate information should also be broadcast where it would assist in
avoiding or minimising offence.

BCAP Code rules:

BCAP Code Rule 4.2: “Advertisements must not cause serious or widespread offence against generally accepted moral, social or cultural standards.”

BCAP Code Rule 30.3: “Television only – Advertisements for products coming within the recognised character of pornography are permitted behind mandatory restricted access on adult entertainment channels only.”

BCAP Code Rule 30.3.2: “Television only – Advertisements permitted under rules 30.3… must not feature material that comes within the recognised character of pornography before 10.00pm or after 5.30am”.

BCAP Code Rule 32.3: “Relevant timing restrictions must be applied to advertisements that, through their content, might harm or distress children of particular ages or that are otherwise unsuitable for them.

You may also be interested in reading the „Ofcom guidance on the advertising of telecommunications-based sexual entertainment services and PRS daytime chat services‟.

This was published in January 2011 and can be found using the following link:

http://stakeholders.ofcom.org.uk/binarie...idance.pdf

It contains the following guidance to help broadcasters ensure that material broadcast on adult chat services is suitable for broadcast without mandatory restricted access.

“(Adult chat broadcasters should)… at no time broadcast shots of presenters using liquids of a sort or in a way which suggests the liquid is ejaculate”



Ofcom has published decisions about programmes investigated after broadcasting images of „semen/ejaculate and implied ejaculation‟. These include:

The Farm, Five, 5 October, 22:00

http://stakeholders.ofcom.org.uk/binarie...broadcast-
bulletins/pcb_23/pcb_23.pdf

A Girl’s Guide to 21st Century Sex, Five, 30 October, 6 November, 20 November & 4 December 2006, 23:00

http://stakeholders.ofcom.org.uk/binarie...ssue77.pdf

Red Light2, Red Light 2 (Channel 902), 2 April 2011, 00:05 to 01:00

Red Light 3, Red Light 3 (Channel 948), 10 April 2011, 22:10 to 23:00

100% Horny, Red Light 3 (Channel 948), 6 April 2011, 22:01 to 23:00

http://stakeholders.ofcom.org.uk/binarie...broadcast-
bulletins/obb185/obb185.pdf

If you have any queries then please contact information.requests@ofcom.org.uk. Please
remember to quote the reference number above in any future communications.

Please ensure that when using the provided information in any way, including publishing the information, you comply with all relevant legislation. For example, the information provided may be protected by copyright under the Copyright, Designs and Patents Act 1988 (as
amended). If in doubt, please seek independent legal advice. For Ofcom‟s policy on copyright and related issues, please refer to our website at http://www.ofcom.org.uk/disclaimer/

Yours sincerely

I was particularly interested to read that "Ofcom has published decisions about programmes investigated after broadcasting images of „semen/ejaculate and implied ejaculation‟." as 2 of the shows quoted to support banning this content were found acceptable and the other three were broadcast after the rule was published.

"These include:
The Farm, Five, 5 October, 22:00
A Girl’s Guide to 21st Century Sex, Five, 30 October, 6 November, 20 November & 4 December 2006, 23:00
Red Light2, Red Light 2 (Channel 902), 2 April 2011, 00:05 to 01:00
Red Light 3, Red Light 3 (Channel 948), 10 April 2011, 22:10 to 23:00
100% Horny, Red Light 3 (Channel 948), 6 April 2011, 22:01 to 23:00"

I felt that Ofcom had failed to answer the question actually asked, and was particularly interested to read that "Ofcom has published decisions about programmes investigated after broadcasting images of „semen/ejaculate and implied ejaculation‟." as 2 of the shows quoted to support banning this content were found acceptable and the other three were broadcast after the rule was published, so on 27 July I challenged their evasion.

Wanderer Wrote:Mr AAAA
Thanks for the data which I have now digested. The 2 reports quoted seem to be irrelevant. Neither assess the acceptability or otherwise of ejaculate, as opposed to hard core images showing ejaculation from a penis. If it is you belief that this specific is covered please quote page or paragraph numbers. To be clear this request covers the acceptability of liquid which may be ejaculate but where there is potential for ambiguity. The established standard is the popular film "Something About Mary" which is certificate 15.
Does the media tracker survey cover the acceptability of implied ejaculate?
Thanks for the information that there have been 66 complaints about what appears to be semen. How does this information contribute to research into acceptability? Can you break these figures down by year and broadcaster type (public service, general, adult) and program type (drama, sex education,comedy, adult) and broad time (8am-8pm, 8pm-midnight, midnight-5am, 5am-8am).
How many of these complaints were upheld/rejected/resolved, again broken down by year, broadcaster type and program type and broad time? For comparison supply equivalent overall figures for total numbers of complaints, complaints about sexual content, complaints about generally accepted standards by broadcaster type (public service, general, adult) for the last reporting year.
You quote rule 1.17 (R18). This is irrelevant. I asked about implied ejaculation, not explicit images.
Rule 1.18 - Has it been established that ambiguous images of a sticky liquid are "strong sexual content"? How? When? This goes to the core of this request.
Rule 1.20 is irrelevant. This refers to "intercourse", bodily penetration, whereas possible ejaculate is external.
Rule 2.1 - generally accepted standards: This also goes to the heart of the request. Where has the standard been assessed? You say there have been 66 complaints but, without access to details, I suspect that most were rejected. If Ofcom have rejected the vast bulk then Ofcom must be saying that images of (apparent) ejaculate are not in breech of generally accepted standards.
BCAP Rule 4.2 - Where is the evidence that images of (possible) ejaculate cause widespead offence? If referring to previous research please indicate exactly where by page or paragraph number.
You name 5 shows where Ofcom made decisions about „semen/ejaculate and implied ejaculation‟. One, A Girls Guide to 21 Century Sex, contained explicit images of ejaculation and was found not in breech of the broadcasting code. It is unclear how this example supports the case for banning such content.
Three, from Red Light, were broadcast after the guidelines "Ofcom guidance on the advertising of
telecommunications-based sexual entertainment services and PRS daytime chat services‟ were published. Interesting as these are they cannot be held as examples used to inform the rules as they occured after the rules were written.
I did not see The Farm (which year was this broadcast?) but believe that part of the offence was because a woman masturbated an animal,and partly because the scene was considered inappropriate for the program genre.
Thanks for these 5 examples but they really do not seem to support the case that Ofcom has any kind of objective independent evidence that implied ejaculation causes serious and/or widespread offence.
This is to request that you clarify the research references that you have supplied and supply the additional information about the 66 complaints mentioned. Let me know if this needs to be in a separate request.
Regards

On 31 August another member of Ofcom stepped in and send the following reply to an unrelated query

BBBB Wrote:Dear XXXX

Thank you for your email of 11 August 2011.

I am sorry you remained dissatisfied with the response you have received from AAAA.

Ofcom has to judge programmes against the Broadcasting Code if we receive a complaint. The Code is prepared on the basis of research and consultation (all of which is available on our web-site). It is for Ofcom to judge, as part of its remit, whether or not a breach of the Code has occurred.

Additionally our guidance (http://stakeholders.ofcom.org.uk/binarie...idance.pdf) outlines the type of content that is unacceptable in advertising content of adult chat services and may risk causing serious or widespread offence against generally accepted standards.
As set out in this Guidance the advertising content of these services enjoys much less latitude than is typically available to editorial material in respect of context and narrative.

Decisions of this nature are not based on research alone although research may inform such decisions. Such decisions are made on a case by case basis taking into consideration the material under investigation and the circumstances of its broadcast.

While acknowledging your comments, Ofcom is not able to add anything further to AAAA’s response of 27 July 2011. If you believe that Ofcom has breached its statutory duty in how we have interpreted the Communications Act 2003 then I would suggest that you seek independent legal advice.

Yours sincerely

"While acknowledging your comments, Ofcom is not able to add anything further to AAAA’s response of 27 July 2011" Really? Watch this space.

"If you believe that Ofcom has breached its statutory duty in how we have interpreted the Communications Act 2003 then I would suggest that you seek independent legal advice." Helpful, eh.

On Sept 9 Ofcom replied to my previous email, referring to their reply on the 31st (above). Sorry for the confusion their response causes.

Ofcom BBBB Wrote:Dear XXXX

Thank you for your email of 27 July 2011.

I refer to my email of 31 August 2011 and the response you have received from AAAA.

As explained in my email, Ofcom has to judge programmes against the Broadcasting Code if we receive a complaint. The Code is prepared on the basis of research and consultation (all of which is available on our web-site). It is for Ofcom to judge, as part of its remit, whether or not a breach of the Code has occurred.

While acknowledging your comments, Ofcom is not able to add anything further to AAAA’s response of 22 July 2011. Again, if you believe that Ofcom has breached its statutory duty in how we have interpreted the Communications Act 2003 then I would suggest that you seek independent legal advice.

Whilst writing, Ofcom would like to amend two points from an email from AAAA dated 27 July 2011.

(1) The Communications Act 319-4b does apply to the setting and revising of all standards as contained in all relevant Codes, including the BCAP Code. The principles underpinning Sections 319-4 (a) to (f) were integrated into the relevant Codes when they were prepared. This enables Ofcom and any relevant co-regulator to have regard to these principles when applying the relevant Codes to individual cases.

(2) If the sexual content is on a PRS service the composition of the audience is a consideration. However, it should be noted that as this is regulated as advertising content very much less latitude, than is typically available to editorial material is respect to this context, is given. As the primary intent of advertising is to sell products any consideration of acceptable standards will take that specific context into account.

Yours sincerely

Note that they now say "The Communications Act 319-4b does apply to the setting and revising of all standards as contained in all relevant Codes, including the BCAP Code"

On 23 Sept I replied asking for specific data orginally requested to be supplied. There appears to be an absence of quality control at Ofcom.

Wanderer Wrote:BBBB
Thank you for considering my request however it included a request for hard data as well as the matters of interpretation that you have addressed. To reinterate, I asked
"there have been 66 complaints about what appears to be semen. Can you break these figures down by year and broadcaster type (public service, general, adult) and program type (drama, sex education,comedy, adult) and broad time (8am-8pm, 8pm-midnight, midnight-5am, 5am-8am).

How many of these complaints were upheld/rejected/resolved, again broken down by year, broadcaster type and program type and broad time? For comparison supply equivalent overall figures for total numbers of complaints, complaints about sexual content, complaints about generally accepted standards by broadcaster type (public service, general, adult) for the last reporting year."

This was requested in July I trust you will reply without further delay.
Regards

And received this reply on 23 Sept

Ofcom BBBB Wrote:Dear XXXX

Thank you for your email. I apologise that we have not yet responded to your request for hard data. My colleagues will respond to you on this matter as soon as possible.

Yours sincerely

BBBB

On October 10 Ofcom sent the following reply including the data table requested.

Ofcom AAAA Wrote:Dear XXXX,

When responding to an earlier request we did not provide the breakdown of figures you had asked us for so I am now writing to provide this information.

How does this information contribute to research into acceptability? Can you break these figures down by year and broadcaster type (public service, general, adult) and program type (drama, sex education,comedy, adult) and broad time (8am-8pm, 8pm-midnight, midnight-5am, 5am-8am).
Please see the table below:


Almost all of the complaints were found to not be in breach of the Ofcom Broadcasting Code. This does not mean that Ofcom did not find the images of ejaculate, implied or otherwise, in these particular cases potentially in breach of generally accepted standards but that there were contextual factors (e.g. editiorial content of the programme, the service on which it was broadcast, the time of broadcast) applied by the broadcaster that justified the content (see Rule 2.3 of the Ofcom Broadcasting Code). It is also important to note that complainants may misinterpret the content of programmes when making a complaint.

How many of these complaints were upheld/rejected/resolved, again broken down by year, broadcaster type and program type and broad time? For comparison supply equivalent overall figures for total numbers of complaints, complaints about sexual content, complaints about generally accepted standards by broadcaster type (public service, general, adult) for the last reporting year.

Please also see the table above.

During the past year (1 April 2010 to 31 March 2011), Ofcom reached decisions on 24,462 complaints about broadcasting standards or licence conditions.

Complaints about sexual material may have been logged in any number of categories including, but not limited to, ‘Nudity’, ‘Sex/Nudity’, ‘Sexual Material’ and ‘Generally Accepted Standards’. In addition, complaints about generally accepted standards are not broken down by broadcaster type in our complaints handling database. To check each of these complaints (in excess of 1000) individually and also discern which of those complaints logged as Generally Accepted Standards relate to ‘sexual material’ would, in our view, take in excess of 18 hours and, as such, the cost of complying with your request will exceed the appropriate limit.

In this regard, I draw your attention to section 12 of the Act, which provides that a public authority is not obliged to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the "appropriate limit". The appropriate limit is set out in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004, and is, for Ofcom, £450. That sum is intended to cover the estimated costs involved in determining whether Ofcom holds the information requested, identifying, locating, retrieving and extracting the information from any document containing it. The Regulations provide that costs are to be estimated at a rate of £25 per person per hour.

However, if you wish to submit an alternative request with a more specific scope in relation to this subject, we would be happy to give it our full consideration.

I have attached a list of the categories used to log complaints. For your information, complaints about sexual content on daytime and adult chat channels would be logged under the Participation TV categories post 1 September 2010.

I hope this information is useful.

Please ensure that when using the provided information in any way, including publishing the information, you comply with all relevant legislation. For example, the information provided may be protected by copyright under the Copyright, Designs and Patents Act 1988 (as amended). If in doubt, please seek independent legal advice. For Ofcom’s policy on copyright and related issues, please refer to our website at http://www.ofcom.org.uk/about/accoun/disclaimer/.

If you have any queries then please contact information.requests@ofcom.org.uk. Please remember to quote the reference number above in any future communications.

Yours sincerely

As Ofcom say "Almost all of the complaints were found to not be in breach of the Ofcom Broadcasting Code" though they claim context as a get out.

Viewer Expectations

Ofcom is required by law to take account of audience size and composition when setting rules and assesing complaints. On 2 July 2011 I asked them to how they assess this. Ref 1-18288377​7

Wanderer Wrote:Ofcom has published 6 versions of the Broadcasting Code since it was created (July 2005, Oct 2008, Dec 2009, Sept 2010, Dec 2010, Feb 2011). At least two versions paid particular attention to programs of an adult sexual nature.
1 - What assessment has Ofcom made of the likely size and composition of the potential audience for encrypted and unencrypted programs of an adult sexual nature as required under section 319-4b of the Communications Act 2003? The published reseach into attitudes towards sexual material contains no such assessment of audience size and composition. The Act refers to numerical data ("likely size" and "composition") and after 6 years of operation it is reasonable to expect that Ofcom has hard numerical data to substantiate this.
2- What assessment has Ofcom made of likelihood of persons who are unaware of the nature of a programme's content being unintentionally exposed, by their own actions, to adult sexual content on encrypted and unencrypted programs, as required under section 319-4d of the Communications Act 2003. The Act refers to numerical data and it is reasonable to expect that Ofcom has hard numerical data to substantiate this.
3 - What is the likely size and composition of the audience for programs of an adult sexual nature mentioned above?
4 - What is the likelyhood of persons who are unaware of the nature of a programme's content being unintentionally exposed, by their own actions, to adult sexual content on encrypted and unencrypted programs as mentioned above?