Ofcom - Current Investigations

(21-05-2010 10:25 )aaron Wrote:  

(21-05-2010 08:27 )Hexit Wrote:  what i would like to know is how do we complain to ofcom that the programs aren't explicit enough?
and if they would take the complaints seriously.

There's nothing in the broadcasting code saying that programming needs to be explicit. Unless you can show that the broadcasting code has been broken your complaint would not be regarded as valid.

arron, I suppose that all depends on your interpretation of "adult sex material". If, in your experience, the term "adult sex material" denotes or incorporates explict sexual activity then I believe you would/should/could expect what's shown on TV under the guise of "adult sex material" to measure up to your expectations - any reasonable, rational adult would.

As I tried to point out above, Ofcom's 'descriptions' of material are undefined, the only stated 'limit' is R18 (which is the BBFC's rating NOT Ofcom's), anything else upto R18 should thus be expected and is indeed permitted by the Code.

Moreover, as I also pointed out, what actually constitutes Ofcom's definition of "adult sex material" can only be ascertained by reading through piles of irrelevant judgements. There is NO CLEAR GUIDANCE. Ofcom have produced nothing in a form which allows VIEWERS (whom Ofcom are supposed to work for) to know what they may or may not be wasting their money subscribing to or, indeed, what channels they may wish to block to protect their OWN children from 'unsuitable' content. I'm sure MOST parents would agree that what goes out on TAC/PB/TVX is totally unsuitable for youngsters - it matters not whether this is proper R18 and fully explicit material or piss poor 18 rated softcore versions of the same, its NOT suitable for younger kids full stop. That's the whole issue and has been since day one - Ofcom's bullshit ban on R18 makes NO DIFFERENCE to the safety or suitability of the material going out on supposed 'adult channels' - its ALL harmless whether its R18 rated or not - THAT'S THE LAW as decided by the High Court in 2000.

ADDENDUM

I just want to add that I believe when Ofcom stated there were no grounds to ban R18 according to the tests/clauses of the TVWF Directive (89/552/EEC) they conferred or confirmed the RIGHT to broadcast and receive R18 material on UK TV.

It is a matter of EU Treaties that ANY Right conferred by an EC Directive takes ABSOLUTE PRECEDENCE over any national/domestic legislation to curtail that Right. It was therefore INCORRECT of Ofcom to place ANY requirement in the Comms Act to curtail a Right to broadcast R18-type material above that already granted/confirmed/conferred by the strict tests/clauses in the TVWF Directive.

In summary, by implication the TVWF grants the Right to broadcast anything which does not cause "serious impairment of minors" (clause 22(a)). It allows broadcasting restrictions (not a ban) via watershed times OR, via PIN protection IF broadcast outside of watershed times, ONLY for material which "may cause any impairment of minors" (clause 22(b)). In BOTH cases, Ofcom stated there was NO evidence of impairment to support ANY interference with the Right to broadcast and receive R18 material. (And please note that although TVWF states "pornography and gratuitous violence" are possible areas of concern, Ofcom only appear to have 'gone after' porn and R18, leaving "gratuitous violence" to be broadcast at virtually anytime (despite widespread public concern over its effects on youngsters) - more evidence of anti-porn PREJUDICE at Ofcom).

So, in the context of what I said earlier, Ofcom were able to proscribe a 'violent porn' channel BECAUSE by Law (i.e. under the OPA), 'violent porn' IS deemed harmful to children. R18-type material however is not, indeed, according to the Law since 2000, "the risk to children from R18-type material is insignificant".

(20-05-2010 20:06 )Scottishbloke Wrote:  So much for David Cameron promising to stop ofcom in policy making, what a fuckin lier.

Why, damn the new PM for not having Bangbabes/Ofcon at the top of his "to do" list! Sod the economy, sod ID cards, fiscal meltdown and constitutional changes!

(20-05-2010 18:04 )blackjaques Wrote:  

(20-05-2010 16:39 )mrmann Wrote:  Babestation may be registered in Holland, but they obviously still abide by Offcom's regulations. Do we see full frontal on Babestation? Didn't think so.

I can understand Offcom not wanting to allow hardcore porn,[i] but what harm will full frontal cause? It's a human body, not something disgusting.

Elite has been very strict lately on showing any glimpses of vajayjay, especially when Caty Cole is on. When there is going to be a quick glimpse, the cameraman does a super pan, like he's about to fall over, and the camera goes all crazy like a glimpse of a vagina is the apocalypse

What's also a bit silly is that these channels allow the women to simulate masturbation, oral sex, getting ejaculated on, having sex, fingering and licking their fingers, tongue kissing, nipple sucking, ass spanking, but under NO circumstances can you show your hoohoo

There is also no harm to be found from viewing R18 material. I don't understand Ofcon. They must have friends in high places to carry on with their ridiculous censorship.

All such departments will be subject to some political pressure from their masters who's expectations will not always be within the law. We have seen many cases over the years of rushed legislation or political decisions, generally from the Home Office, that when challenged through the appropriate courts have been judged illegal.
I believe that the current law of the land favours the babe channels to allow them to up the level of output to meet the expectations of the audience, someone just needs to challenge Ofcom (through the court's) to enable this to happen.
The cost of such action (judicial review) has to be balanced against the net gain (financial), not more pussy.
If the channels feel that the cost of a judicial review possibly > £50,000 can be re-couped by an increase in demand for their services then i'm sure they would take that stance, otherwise they just continue with the current service and pay the fines as and when they are found to be in serious breach.
The current actions against BangMedia, as and when they go in front of the contents board, will in my opinion result in a fine (i have yet to see the board go against an officer recommendation and find channels 'not to be in breach', even though it should be a seperate hearing).
There is no way that Ofcom will revoke the licence because the channel is in breach of their (unlawful) code for showing the odd slip or genital/anal outline. Such action would result in an appeal before the courts where Ofcom's code and actions would be thoroughly scrutinised against the LAW of the land and because such action would be in the public interest then costs may be met, to some degree by the public purse.

(20-05-2010 14:51 )mr mystery Wrote:  Cellcast have 4 Dutch adult licences on freeview , with just Partyland registered in GB, when OFCOM were doing some sort of review about adult phone show on freeview Ofcom stated themselves that any new regulations brought in would not affect the 4 Cellcast shows as the were registered in Holland and they have no jurisdiction over them , also when BLUEBIRD OFFICIAL was answering questions about their shows standing up to OFCOM and showing more than other shows do he said "for legal reasons we can't go into deatails but OFCOM's powers are limited by the territoriality of the licence holder ... PS not sure if Cellcast have 3 or 4 Dutch licences , but it is one or the other .

Vostok 1 raised an issue within this thread about Babestation being registered in Holland and therefore not subject to the broadcasting code.

Another member Josh also stated that whilst there is this loophole then BangMedia should take advantage of it.

Mr Mystery also added that 4 of Cellcasts freeview licenses were registered in Holland with only the Partyland licence with Ofcom. He also referred to a post by Bluebird Official within their own thread about 'OFCOM's powers are limited by the territoriality of the licence holder'. but for legal reasons they (BB Official) were not making further comment.

The fact is there is NO loophole that any of the channels can take advantage of to broadcast into the United Kingdom.

It is in fact THE LAW that they can use subject to certain conditions/restrictions.

Now i am only going to state what i understand about the legislation as it applies to Europe as i am aware that Bluebird are also based in the USA.

It is within the Audiovisual Media Services Directive (2010/13/EU) that came into force on the 5th May 2010. The Audiovisual Media Services Directive is the European regulatory framework for television broadcasting, and replaces the Television Without Frontiers Directive (89/552/EEC, as amended by Directive 97/36/EC).

These days we can watch our favourite programmes from all over Europe not just on TV, but also via the internet or on our mobile phones. Like other goods and services, the audiovisual media are subject to the rules of the single European market.

To function optimally, this "single European TV market" needs a minimum set of common rules covering aspects like advertising and protection of minors.

These rules are laid down in the Audiovisual Media Services Directive, which governs EU-wide coordination of national legislation on all audiovisual media, both traditional TV broadcasts and on-demand services.

For any organisation based within the UK and who wish to provide Television Licensable Content Services or Digital Television Programme Services are obliged to seek a licence from Ofcom.

Such licenses will be issued subject to the applicant meeting certain criteria (fit and proper etc) applied by the department but certain organisations are disqualified from holding a TLCS licence or from controlling a licensed company:
a. a local authority (except where the service is provided exclusively for the purposes of carrying out the functions of a local authority under Section 142 of the Local Government Act 1972 (as amended) (provision by local authorities of information relating to their activities).
b. a political body;
c. a religious body, other than where Ofcom is satisfied that it is appropriate for a particular person to hold a licence.
d. any company controlled by any of the above or by their officers or
associates;
e. an advertising agency.

Television content can be broadcast into the UK from europe without the need of a licence being granted by Ofcom.

As a general rule (Article 3 of the AVMS Directive), EU governments may not restrict which broadcasts people can receive or what programmes foreign broadcasters can retransmit in their country – if the broadcasts comply with the EU Audiovisual Media Services Directive in the country where they originate.

The authorities in each EU country must ensure all audiovisual media services originating there comply with their own national rules giving effect to the Audiovisual Media Services Directive.

This means content only needs to be checked once rather than in multiple countries - making things simpler for service providers, especially those wishing to develop new cross-border business.

If any EU country adopts national rules that are stricter than the directive (as they are free to do), these can only be applied to providers in that jurisdiction.

Jurisdiction is covered by article 2 and is generally split into primary and subsidary criteria.

Primary Criteria

Broadcasters who have their headoffice in a member state (not the UK) and the editorial decisions about programme schedules are taken in that Member State but they broadcast into the UK they are not enforced/licensed by Ofcom.

i) If a broadcaster has its head office in one Member State but editorial decisions on programme schedules are taken in another Member State, it shall be deemed to be established in the Member State where a significant part of the workforce involved in the pursuit of the television broadcasting activity operates. If a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in each of those Member States, the broadcaster shall be deemed to be established in the Member State where it has its head office.

ii) If a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in neither of those Member States, the broadcaster shall be deemed to be established in the Member State where it first began broadcasting in accordance with the system of law of that Member State, provided that it maintains a stable and effective link with the economy of that Member State.

iii) If a broadcaster has its head office in a Member State but decisions on programme schedules are taken in a third country, or vice-versa, it shall be deemed to be established in the Member State concerned, provided that a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in that Member State.


Subsidiary Criteria

Subsidiary criteria is ONLY applied when primary criteria is inconclusive when deciding which member state has authority..

Subsidiary technical criteria is also set out in Article 2 of the Directive state that where broadcasters to whom the above provisions are not applicable shall be deemed to be under the jurisdiction of a Member State in the following cases:
a. they use a satellite up-link situated in that Member State;
b. although they do not use a satellite up-link situated in that Member State, they do use satellite capacity appertaining to that Member State.

This subsidiary criterion will only apply if jurisdiction of any Member State cannot be established under the “satellite up-link” criterion referred to in (a) above;

Subsidiary establishment criterion set out in Article 2(5) of the Directive.

If the question as to which Member State has jurisdiction cannot be determined in accordance with the criteria above, the competent Member State shall be that in which the broadcaster is established within the meaning of Articles 52 and following of the Treaty establishing the European Community.

So taking the above criteria, being registered in another EU country is not good enough to fall outside of Ofcom's requirements. The company would have to prove that it's head office is based there as well as that editorial decisions are also taken in that country.

I believe it's these criteria that Bluebird are seeking legal opinion on as they have stated on this forum that their proposed content would be 18 on TV and R18 on the live show.

In my opinion the current strength of the babe shows on the Sky network (post 21.00 hours) is 15 but what we desire is 18 content.

The above information is my interpretation of the current legal position for transmission of content in/into the UK and is given without prejudice. It should not raise expectations until such time that a channel applies the rules and Ofcom accepts this position.

Detailed reply there. Here's my tuppenceworth on several themes.

7 complaints against BangBabes received on the same day? I know for a fact that Ofcom can label a complainant "vexatious" and ignore them. They seem to be on piece of string being pulled by a competitor, and need to decide if they are happy being their bitch or want to tell them to get stuffed.

"Foreign registered channels" - forget it, the EU AV Directive gives the UK the righ to ask for a foreign channel to be closed down if it targets the UK. The only get out is if a channel is genuinely aimed at another country and the UK is a secondary market. If the babes have UK phone numbers and speak English that argument won't wash. Dorcel (French domestic porn channel) might get away with it, but not if they hire a transponder at 28 degrees East (Sky) and centre it on the UK.

"Who do we complain to that the show's aren't explicit enough?" The broadcaster, that's who. It isn't Ofcom's job to ensure broadcasters stick to their licence category, any more than it's the council's job to regulate the brand of beer sold in your local pub. Unless a Pay-Per-View encrypted show significantly differs from advertised content. If a show was advertised as live and turned out to be a 3 year old recording you might have a case, but even then Ofcom would probably argue that you bought 6-8 hours access and only 1-2 hours was misleading, and at best you would get your £5.99 back - the channel would not be reprimanded or closed down.

"No grounds to ban R18" - Ofcom argue that PIN protection is inadequate so they have an over-riding duty to protect children. It's a feeble argument but they are sticking to it, so 14 year olds can legally buy hardcore porn* showing penetration, oral and ejaculation in UK newsagents in the middle of the day but 40 year old married couples cannot access the same at 2am in the privacy of their own homes.
(* OK, most newsagent will tell them to bugger off, but not all, and no newsagent has ever been prosecuted or shut down for this. It is legal.)

"The Governemt might regard Ofcom fines as a moneyspinner" - or they might do the sums and work out that VAT on phone calls and subscriptions, tax on wages and company profits earns Millions more.

"Who do we complain to that the show's aren't explicit enough?" part 2 - I have a reasonable expectation that broadcasting will be "full spectrum" and meet everyone's needs. Drama, eduction, news, documentaries, film, enertainment. By all means have dull worthy plays about the Tolpuddle Martyrs, the Antiques Roadshow and Tony Robinson sifting mud in carparks, but broadcasters should also meet the needs to viewers between 20 and 60. Even the BBC should have erotic content - I PAY FOR THE BBC AND SO DO YOU. Certainly the broadcasting regime should - no MUST - cater for groups who are systmetically excluded, ostracised, insulted and humilated. I'm struggling to think of more than one group that falls into this category - men who like sex.

some of the open investigations have become closed investigations in todays bulletin

http://www.ofcom.org.uk/tv/obb/prog_cb/o...sue158.pdf

(21-05-2010 08:27 )Hexit Wrote:  what i would like to know is how do we complain to ofcom that the programs aren't explicit enough?
and if they would take the complaints seriously. i dare say that if they got say 1000 complaints for lack of explicit material to every 1 they get for too explicit we may get somewhere.

SNIP

just a thought!!!...

Ofcon are only interested in applying censorship, not dealing with complaints against it.

They will simply say, and I know this from personal experience, that (WARNING: Astounding ‘contradiction in terms’ alert!!!) it is entirely up to the broadcaster to decide what they wish to broadcast... so long as they comply with Ofcon's broadcast code.

What I don't get is that what's allowed on the regular channels is anything except for R18, but why must they cover themselves then? Surely showing some vagina here(Not including unintentional or intentional slips) and there is NOT R18 material, right??? Yet they state you MUST be over the age of 18 to watch these shows.

(25-05-2010 12:41 )mrmann Wrote:  What I don't get is that what's allowed on the regular channels is anything except for R18, but why must they cover themselves then? Surely showing some vagina here(Not including unintentional or intentional slips) and there is NOT R18 material, right??? Yet they state you MUST be over the age of 18 to watch these shows.

Is it not to do with what they can show using premium rate numbers too