Quote:Reference: 1-182883777

Dear XXXX,

I am writing in reference to your email requesting information from Ofcom, which we received on 4 July 2011.

In response to your request for information I have understood that you have requested the following:

1. How Ofcom applies Section 319-4(b) of the Communications Act 2003
2. Why the 2009 sexual research contained no assessment of audience size and composition
3. How Ofcom applies Section 319-4(d)
4. What is the likely size and composition of the audience for programmes of an adult sexual nature
5. What is the likelihood of persons unaware of a programme’s content being unintentionally exposed by their own actions to adult sexual content

How Ofcom applies Section 319-4(b) of the Communications Act 2003

Section 319 – 4(b) of the Communications Act 2003 states:
(4) In setting or revising any standards under this section, OFCOM must have regard, in particular and to such extent as appears to them to be relevant to the securing of the standards objectives, to each of the following matters—...
(b) the likely size and composition of the potential audience for programmes included in television and radio services generally, or in television and radio services of a particular description;
This requirement is one of the contextual factors set out in Rule 2.3 of the Code (as highlighted in bold) which states:
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, discriminatory 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.
Meaning of "context":
Context includes (but is not limited to):
the editorial content of the programme, programmes or series;
the service on which the material is broadcast;
the time of broadcast;
what other programmes are scheduled before and after the programme or programmes concerned;
the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally or programmes of a particular description;
the likely size and composition of the potential audience and likely expectation of the audience;
the extent to which the nature of the content can be brought to the attention of the potential audience for example by giving information; and
the effect of the material on viewers or listeners who may come across it unawares.
This contextual factors has been in the Ofcom Broadcasting Code since it was first published in 2005 and has been in every subsequent published version.

Rule 2.3 of the Code provides scope for broadcasters to transmit potentially offensive material as long as sufficient contextual justification is applied. In other words material that may offend some viewers can be broadcast if the broadcaster ensures appropriate context is applied and, there is an expectation, that the more likely the material is to offend the more contextual justification is required. The likely size and composition of the potential audience and likely expectation of the audience is one of the factors we may take into consideration if this is a relevant factor.

With specific reference to encrypted and unencrypted programmes of an adult sexual nature, it is the case that material which is defined as adult chat is no longer been regulated as editorial content but as long-form advertising i.e. teleshopping. From that date the relevant standards code for such services became the BCAP Code rather than the Broadcasting Code and therefore Rule 2.3 and the requirement in the Communications Act 319 – 4(b) is no longer applied.

In terms of unencrypted sexual content which is considered to be editorial, Rule 2.3 of the Broadcasting Code would be applied as would the specific rules on sexual material as set out in Rules 1.17, 1.18, 1.19 and 1.20 of the Broadcasting Code. Ofcom’s assessment of the contextual factors such as the likely size and composition of the potential audience and likely expectation of the audience would then be considered on a case by case basis taking into consideration the exact information relating to the specific programme or service.

Why the 2009 sexual research contained no assessment of audience size and composition

The report Attitudes towards sexual material on television was a qualitative report which explored public attitudes to sexual material on television. It was not a quantitative report which measured the numbers of people watching sexual material. The aim of the research was not to understand how many people watched sexual content but to understand responses to sexual content and whether viewers could appreciate the contextual factors applied to minimise potential offence.

How Ofcom applies Section 319-4(d)

Section 319 – 4(d) of the Communications Act 2003 states:
(4) In setting or revising any standards under this section, OFCOM must have regard, in particular and to such extent as appears to them to be relevant to the securing of the standards objectives, to each of the following matters—...
(d) the likelihood of persons who are unaware of the nature of a programme’s content being unintentionally exposed, by their own actions, to that content;

Again, this is one of the contextual factors considered with reference to editorial content of a sexual nature under the Broadcasting Code. If the material of an adult sexual nature is PRS content then this material would be regulated under the BCAP Code as set out above.

With reference to sexual content of an editorial nature this requirement is not about audience composition and size but to do with access to the material. With reference to editorial material of a strong sexual nature Ofcom might consider factors that might lead the viewer to be unintentionally exposed such as: whether the content was available free to air without mandatory PIN access, what time it was broadcast, what channel it was broadcast on and what programmes preceded the material in question.

What is the likely size and composition of the audience for programmes of an adult sexual nature

Ofcom uses BARB data to identify the size and composition of the audience for programmes.

If the sexual content is on a channel which has an audience share over a certain level it is recorded by BARB. If the audience share is minimal it is not recorded by BARB.

If the sexual content is on a PRS service the composition of the audience is not a consideration.

What is the likelihood of persons unaware of a programme’s content being unintentionally exposed by their own actions to adult sexual content

Ofcom assesses every complaint on a case by case basis and it is not possible to predict the likelihood as this will depend on the unique circumstances of every programme such as its timing, the channel the service is broadcast on, the platform the service is broadcast on and the programmes scheduled before and after.

I hope this information proves useful.

Kind regards,

"Wanderer Wrote:AAAA
Thanks for the detailed reply that I have now digested. Unfortunately it seems that you have misunderstood the questions or statute and for that reason I request relevant answers. In particular you seem to confuse a statutory duty to take certain probabilistic data into account when setting policy with a subjective observation based approach when evaluating specific complaints. These are totally different. One is general the other is specific. One is before the event the other has hindsight.
I explain below in what was my request for information has not been met. Please read and supply the requested information or confirm that it does not exist.
1) Ofcom response to Application of Section 319-4(b) of the Communications Act 2003
The Act refers to actions that OFCOM must undertake when SETTING standards. Your response re section 319-4b relates to considerations that BROADCASTERS must take into account when broadcasting programs. These are very different requirements placed on different people at different times (when setting standards, pre-transmission, and when broadcasting).
You state that the requirement in the Communications Act 319–4b is no longer applied to adult chat services registered as teleshopping. What legal basis do you have for saying that Section 319 does not apply? Section 319 is an absolute requirement with no exemptions for different categories of programmes such as editorial and advertising.
If you adhere to this view, are you also saying that there is no requirement for any Standards as outlined in Section 319 for any advertising material, or is Ofcom cherry picking the parts it likes?
2) Why the 2009 sexual research contained no assessment of audience size and composition
You explain that this research was qualitative. While this explains the scope of this piece of research it does not explain the absence of probability data as required by statute under Sections 319-4b and (d). Do you have any such data?
3) Ofcom response to Application of Section 319-4d
With regard to Section 319-4d you state that the Act refers solely to the mechanics of channel access rather than audience composition and size. Audience awareness of the nature of channels and position within the EPG are factors that can affect the likelihood of someone being accidentially exposed to content by their own action. Viewers of mainstream drama are more likely to browse channels near their favourites (BBC, ITV, Alibi, etc) than to suddenly jump to the adult section 100s of channels away. The same viewers are probably likely to avoid channels and shows with sexually suggestive titles. The degree of offence caused to a 20 year old man browsing an adjacent channel is likely to be different from that caused to a middle aged woman expecting repeats of The Antiques Roadshow. Ofcom repeatedly asserts that channel position within the EPG, time and labelling are ”not sufficient to ensure serious or widespread offence against generally accepted standards [is] not caused.” (quote from Broadcast Bulletin 185 findings against ”RedHot”). What is your basis for asserting ”widespread” offence? What is the basis for Ofcom asserting” widespread” offence? Ofcom has 6 years complaints data and has commissioned custom research. Section 319-4b places a statutory DUTY on Ofcom to assess ”likelihood” when setting standards. What is the likelihood? 1 in a 1000? 10 people per year? 100 per week?
If numbers cannot be supplied it is reasonable to assume that Ofcom has not fulfilled it’s legal duties under this Section.
4) Ofcom response to ” What is the likely size and composition of the audience for programmes of an adult sexual nature”. You state that Ofcom uses BARB data. You should be aware that ”only those channels that a broadcaster requests to be measured are reported individually”. All other channels are grouped under ”Other” (source: BARB website). Adult channels are known not to subscribe to BARB. 250 TV channels are reported on - Sky alone carries 548 channels not counting BBC regional variations. BARB data is based on a reporting panel of 5,100 homes, about 1/5000 of the population and will therefore miss programs with audiences of less than 5,000. BARB also omits commercial premises and hotels. It is also not unreasonable to expect that viewers of adult programs would be reticent to sign up as BARB panel members leading to systematic under-representation of the category. (Embarrassment based survey bias was clearly established in the 1992 general election).
For these reasons BARB data may be adequate for determining advertising rate cards but is not reliable for public policy or when fining adult broadcasters based on likely audience.
Also this question was not answered on the specious grounds that the law does not apply to PRS programs. No such exemption exists.
I ask again: What is the likely size and composition of the audience for programmes of an adult sexual nature
5) Ofcom response to ”What is the likelihood of persons unaware of a programme’s content being unintentionally exposed by their own actions to adult sexual content”
Ofcom states that it is not possible to make predictions. You must have some basis for determining the level of risk and proportionate controls. If not your controls cannot be proportionate as you have nothing to measure against. Also bear in mind that you have 6 years accumulated complaints evidence.
Please supply the data you have about likely size and composition or confirm that no such data exists.
Regards
XXXX

Quote: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/binaries/broadcast/guidance/bcap-guidance.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

BBBB

(26-11-2011 22:11 )blackjaques Wrote:  Excellent input, Wanderer.

Bet you won't get Ofcon to justify their actions by an evidence based answer.

They do not want explicit sex/nudity on UK television.

Wanderer Wrote:Assorted guidance has been issued to broadcasters of adult PRS material since Ofcom was created. Please supply all such guidance including but not limited to guidance issued on or about:
19 June 2006 (letter);
8 Sept 2006 (letter);
18 April 2007 (letter);
23 April 2009 (e-mail);
28 April 2009 (e-mail);
3 August 2009 (letter);
6 November 2009 (letter);
3 December 2009 (meeting);
8 January 2010 (letter);
21 January 2010 (meeting).
17 December 2010
And previous versions of "Ofcom guidance on the advertising of telecommunications-based sexual entertainment services and PRS daytime chat services" stating issue date and date superseded.

Ofcom Wrote:Dear XXXX,

Freedom of Information: Right to know request

Thank you for your request for information about ‘guidance [that] has been issued to
broadcasters of adult PRS material since Ofcom was created’. Your request was received on
18 August 2011 and I am dealing with it under the terms of the Freedom of Information Act
2000 (the ‘Act’).

Unfortunately I cannot identify the information you have requested from the details you have
provided; and therefore will be unable to proceed with your request without clarification of the
information you have requested. To help us do so, I would like to know the following
information:



The source (e.g. broadcast bulletin, meeting minutes) of the dates you provided of guidance letters, emails and meetings. This will enable us to locate the relevant documents.

Once I have more details, and am able to find the information you have requested, your request will be considered.

Generally any information provided will consist of copies of original documents in paper or electronic format.

Where we hold the information you have requested we will endeavour to answer your request in full and within 20 working days. If we are unable to provide the information requested, we will explain why under the Act the information has not been provided.

Please note that if I do not receive appropriate clarification of your information requirements by 16 September 2011 then I will consider the request closed.

If you have any queries then please contact me. Please remember to quote the reference number above in any future communications.

Yours sincerely

AAAA

Wanderer Wrote:AAAA
(FOI Request for clarification XXXX 1-186291371.pdf) The list is from a variety of sources. Listing each would create a risk that you do not supply other pertinent information. My expectation is that Ofcom store guidance issued to channels in one,or at most, a small number of locations. If Ofcom does not have a structured filing system it would be difficult to concieve how it could reference such standards and guidelines when investigating complaints. In the best case there should be one file, electronic or manual, holding all standards/guidance communications to channels in the adult sector. Worst case there must exist files storing communications with named channels (or your system should enable searching by named channels). Checking the contents for one channel should reveal general communications sent to more than one broadcaster.
XXXX

Ofcom Wrote:Dear XXXX
I am writing regarding your request for information from Ofcom.

You said:

“Assorted guidance has been issued to broadcasters of adult PRS material since Ofcom was created. Please supply all such guidance including but not limited to guidance issued on or about:
19 June 2006 (letter);
8 Sept 2006 (letter);
18 April 2007 (letter);
23 April 2009 (e-mail);
28 April 2009 (e-mail);
3 August 2009 (letter);
6 November 2009 (letter);
3 December 2009 (meeting);
8 January 2010 (letter);
21 January 2010 (meeting);
17 December 2010

And previous versions of "Ofcom guidance on the advertising of telecommunications-based sexual entertainment services and PRS daytime chat services" stating issue date and date superseded.”

Your request, which we received on 18 August 2011, has been considered under the Freedom of Information Act 2000 (the Act). We sent an email to you on 15 September 2011 to explain that the time limit for responding to your request needed to be extended because the information requested had to be considered under Section 36, which is one of the exemptions in the Act to which a public interest test applies.

You asked us to provide all guidance issued to broadcasters of adult PRS material since Ofcom was created. You also set out a list of specific dates on which you consider guidance may have been provided. Pursuant to this request we are providing all guidance issued to all
free to air adult PRS broadcasters.

I note that your list of dates appears to refer to documents comprising correspondence or minutes of meetings between Ofcom and particular licensees. These documents concern particular issues of compliance by those individual licensees with the Broadcasting Code. As such we consider the documents fall outside the scope of a general request for “guidance”.

We note also that if your request was intended to include such documents within its scope it would capture an extremely large number of documents. It would therefore be likely that we would be unable to respond to the request as to do so would require us to spend more than
18 hours preparing the relevant information. In any event, as you can see below, we consider that the specific documents it appears you may be referring to are exempt from disclosure.

1) 19 June 2006 (letter);

Please find this letter – sent to all broadcasters of adult PRS material licensed by Ofcom – attached at Annex A.

2) 8 Sept 2006 (letter);

Please find this letter – sent to all broadcasters of adult PRS material licensed by Ofcom – attached at Annex A.

3) 18 April 2007 (letter);

We do not hold a letter dated 18 April 2007 falling within the scope of your request.

4) 23 April 2009 (e-mail);

Ofcom is unable to provide this information as it falls under the following exemptions:



Section 31 of the Act. This section relates to law enforcement and the functions of a public authority. In applying this exemption we have had to balance the public interest in withholding the information against the public interest in disclosing the information. See Annex D.



Section 36 of the Act. This relates to information that would or would likely prejudice the effective conduct of public affairs, which includes inhibiting the free and frank exchange of views. In applying this exemption we have had to balance the public
interest in withholding the information against the public interest in disclosing the information as set out in Annex E. In the letter in Annex F, CCCC as a “qualified person” confirms that in his reasonable opinion it is not in the public interest for Ofcom to disclose the information you requested.



Section 44 of the Act. Under this section information is exempt from disclosure as it has been shared with us under our regulatory powers and disclosure is prohibited under section 393(1) of the Communications Act 2003. Section 44 is an absolute exemption under the Act and does not require a public interest test.

5) 28 April 2009 (e-mail);

The following exemptions apply to this information – Sections 31, 36, 44.

6) 3 August 2009 (letter);

Please find this letter – sent to all broadcasters of adult PRS material licensed by Ofcom – attached at Annex A.

7) 6 November 2009 (letter);

The following exemptions apply to this information – Sections 31, 36, 44.

8) 3 December 2009 (meeting);

The following exemptions apply to this information – Sections 31, 36, 44.

9) 8 January 2010 (letter);

The following exemptions apply to this information – Sections 31, 36, 44.

10) 21 January 2010 (meeting).

The following exemptions apply to this information – Section 44.

11) 17 December 2010

No guidance was issued on this date.

Ofcom held a meeting on 14 December in order to issue guidance to broadcasters from the adult PRS sector. Please find the internal minutes from this meeting at Annex B. Some of the information contained in this document has been redacted as it is subject to the exemption under Section 40 of the Act.



Section 40 of the Act relates to personal information and provides that such information is exempt for the purposes of the Act.

Section 40 is an absolute exemption under the Act and does not require a public interest test.

With regard to your request for “previous versions of "Ofcom guidance on the advertising of telecommunications-based sexual entertainment services and PRS daytime chat services" stating issue date and date superseded”, please find attached at Annex C the guidance issued on 28 January 2011 and later revised and issued again on 27 July 2011.

You can find the latest version using the following link:

http://stakeholders.ofcom.org.uk/binaries/broadcast/guidance/bcap-guidance.pdf

Please also note, for the avoidance of doubt, that the Act requires requestors to use their real names, and that Ofcom is not obliged to respond to a requestor using a pseudonym.

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

AAAA

Ofcom Chris Bantvala (Director of Standards) Wrote:Dear

We are writing to all broadcasters who provide free-to-air ’Babe‘-type programmes, based on premium rate telephony. We currently have some serious concerns about these programmes and their compliance with the Broadcasting Code. Our concerns focus on to two specific areas:

~ the degree of sexual content; and
~ the separation of advertising from programme content.

Sexual content

lt is Ofcorn’s view that there has been a gradual, but significant, shift in the content of these programmes over the last few months. We realise this is a response to a competitive market and appreciate that these channels are now grouped in the adult section of EPG.
However, they remain freely available to all viewers, notwithstanding the parental controls that can be applied by those vvho are aware of these systems. It has become apparent that there has been a progressive erosion ofthe normally applied standards for material that is
unencrypted and transmitted in some cases close to the 9pm watershed. We have now reached a situation where what is currently being shovvn on some ‘Babe’ channels is far adrift from anything that would have been shown on free-to-air channels previously.

We are therefore reminding broadcasters of their obäigations under their licence to ensure compliance with the Broadcasting Code, in particular Section One: Protection ofthe Under Eighteens and Section Two: Harm and Offence.

ln respect of material transmitted outside encryption, licensees should be aware of the importance of viewer expectation and the rules regarding sexual content. Particular care must be taken over material transmitted pre-watershed, but there is also an expectation that
programmes in the first hour or so after the watershed do not move quickly into overly sexual areas. For example, caution should be exercised over nudity, or near nudity, in a sexual context. Audio or graphic text should also be handled with care and appropriately limited.

It is for individual broadcasters to ensure that they comply with the Code. However, we hope that this letter will remind broadcasters that they must have in place appropriate procedures and structures to ensure compliance with the Code. lt appears to us that some of the
type programmes - as a genre are out of step with generally accepted standards as applied by other channels and we would expect licensees to take appropriate steps to remedy this.

Separation of advertising from programme content

Under Section Ten ofthe Code, broadcasters must ensure that the advertising and programme elements of a service are kept separate and that prog rarnmes are not distorted for commercial purposes. We are concerned by the extent to which advertising messages appear in a number of ‘Babe’ programmes, in terms of both degree and editorial justification.

The following Code rules are particularly significant:

Rule 10. 3: Products and services must not be promoted in programmes. This rule does not apply to programme related material.

Rule 10.4: No undue prominence may be given in any programme fo a product or service.

Rule 10.9: Premium rate numbers will normally be regarded as products or services and must therefore not appear in programmes, except Where:
~ they form part ofthe editorial content of programme; or
~ they fall within the meaning of progremme­-related material.

Rufe 10.10: Any use of premium rate numbers must comply with the Code of Practice issued by ICSTIS.

References to premium rate services (‘PRS’) are allowed under the Broadcasting Code only by way of exception and subject to editorial justification.

We are particularly concerned by those 'Babe’ programmes which contain one or more of the following elements:
~ The content is pre-recorded.
~ The PRS number remains on screen at all times or is otherwise unduly prominent.
~ There is little or no on-screen interaction with callers, eg 'babe' does not talk on air about calls received; there is no audio other than music; no text messages from viewers are displayed.
~ Viewers calling the PRS number are passed to a call centre.
~ The programme contains advertising for other products and/or services, eg off­-screen chat lines, videos, magazines.

We recognise that the use of PRS in programmes is legitimate under the Broadcasting Code (subject ofcourse to compliance with ICSTIS’ requirements). However, the broadcasting environment is changing with new applications and technologies emerging, and the boundaries are becoming less clear. It is therefore possible that we will consult in the near future on the wider regulatory issues.

We hope that by raising our concerns in this way, these matters will be remedied without the need for further regulatory action and would welcome your written confirmation by 10 July 2006 that you have understood the two separate issues discussed in this letter and that,
where a problem currently exists, you will take appropriate remedial action at the earliest opportunity. Should you vvish to discuss further, we are happy to provide informal advice where possible on the relevant provisions of the Code - in the first instance, please contact
my colleagues [NAME] and [NAME]

Yours sincerely

Chris Banatvala