Ofcom Chris Bantvala (Director of Standards) Wrote:'Babe'-type programming and compliance with the Ofcom Broadcasting Code

You will remember that I wrote to yourself and all other broadcasters who provide free­ to-air Babe-­type programmes, based on premium rate telephony, on 19 June 2006. In the letter I explained that Ofcom had some serious concerns about these programmes and their compliance with the Ofcom Broadcasting Code (“the Code”). I enclose a copy of that letter.

It is now almost three months since alt broadcasters of such material were put on notice by my letter of our concerns.

Subsequent to that letter I am now writing to inform you that Ofcom is currently monitoring all such services. There are current investigations in progress and We will be writing to individual broadcasters to request their representations as to how certain output we have viewed complies with the Code and so with the terms of their broadcast licences. That process is ongoing.

Without prejudice to our current investigations I will reiterate and expand on my last letter.

I said our concerns focused on two specific areas:
~ the degree of sexuel content: and
~ the separation of advertising from programme content.

Sexual content: pre watershed

With regard to sexual content I reminded broadcasters in my previous ietter of their obligations under their licences to ensure compliance with the Code, in particular Section One: Protection of the Under Eighteens and Section Two: Harm and Offence.

For the avoidance of doubt I must make it very clear that ‘Babe’ material that is predicated on eliciting calls of a sexual nature from over 18s (“adult calls”) is incompatible with pre-watershed transmission. (This applies even if the content of the phone calls is not broadcast.)

I point you to Rule 1.17 ofthe Code:

“Representations of sexual intercourse must not occur before the watershed, or when children are particularly likely to be listening, unless there is a serious educational purpose.
Any discussion on, or portrayal ol, 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 and inexpllclt."

Under the Code it is prohibited to elicit calls before the watershed on a free to air channel and we will intervene if we see such programming.

Furthermore we should add that our concerns are shared by the secretariat of icstis who will separately be writing to service providers.

Under the Code it is prohibited to give a website address (pre warershed) where material is not suitable for the time of the broadcast or of a nature that may not be broadcast (R18 or its equivalent) and we will intervene if we see such content.

Sexual content: post watershed

In my previous letter I wrote:

"in 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.”

Broadcasters who wish to broadcast sexually explicit visual material or commentary should consider Whether they should in fact be broadcasting under encryption in line with Rule 1.24.
In effect broadcasters have the choice either to bring content into line with audience expectations for free to air broadcasts (albeit within the adult section of the EPG) or to broadcast under encryption.

Under the Code it is prohibited to broadcast content where the visuals or the audio or the overall tone is tantamount to adult sex material and we will intervene if we see such programming. This includes explicit sexual language.

The separation of advertising from programme content

In my last letter I reminded broadcasters that under Section Ten of the Code, broadcasters must ensure that the advertising and programme elements of a service are kept separate and that programmes are not distorted for commercial purposes. I explained that we were concerned by the extent to which advertising messages appear in a number of ‘Babe’ programmes, in terms of both degree and editoriai justification.

I pointed out that the following Code rules are partìculariy 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 to a product or service.

Rule 10.9: Premium rate numbers will normally be regarded es products or services and must therefore not appear in programmes, except where:

they form part ofthe editorial content of the programme; or

they fall within the meaning of programme ­related material.

Rule 10.10: Any use ofpremfum refe numbers must comply with the Code of Practice issued by ICSTIS.

I added that references to premium rate services ('PRS') are allowed under the Broadcasting Code only by way of exception and subject to editorial justification.

Under the Code it is prohibited to:

Include content which is pre-recorded while offering a PRS number;

Keep the PRS number on screen in a way that is unduly prominent;

Keep the PRS number on screen without any visuals in terms of stills of videos (i.e. text on a black screen);

Have little or no on-screen interaction with callers, eg 'babe' does not talk about calls received; there is no audio other than music; no text messages from viewers are displayed; and

include advertising for other products and/or services, eg off-screen chat lines, videos, magazines in the programming.

We will intervene if we see any of the above

ln conclusion we expect to see active change to ensure compliance by broadcasters who have failed to act following my last letter. Guidance will be published on these issues.

As I explained previously it is probable that we will consult in the near future on the wider regulatory issues for example are these services more properly classified as advertising and therefore subject to the advertising codes.

Statutory sanctions

I must also put all broadcasters of such services on notice that where a breach is upheld following due process we will consider whether, in the light of the notice given by my last letter, the actions of the broadcaster in including such content in the service amount to a repeated, deliberate, or serious breach of the Code. We would in such a case consider imposing a statutory sanction. Broadcasters will of course be given appropriate opportunities to respond and put their case.

Clearly the broadcast of prohibited content subsequent to this, my second letter, which is later upheld as being in breach of the Code would be regarded extremely seriously.

I would remind broadcasters that we have the ability to fine or revoke licences where appropriate.

Yours sincerely

Chris Banatvala

Ofcom Chris Bantvala (Director of Standards) Wrote:Dear

Introduction

We are writing to all Ofcom licensees who provide broadcast output that consists of adult sex chat telephone lines (post 21:00) and daytime chat telephone lines (pre 21:00). As [name of Licensee] you are on our records as holding the licences for the adult sex chat or daytime chat channels listed in the attached Annex.

Recent Ofcom monitoring has shown that the level and amount of sexual explicitness has increased. We are also receiving a significant number of complaints regarding the content of these channels. Ofcom has noted that some licensees are repeatedly broadcasting content which does not meet generally accepted standards or fails adequately to protect the under-eighteens on services which are freely available without any access restrictions. These are requirements of the Broadcasting Code (“tne Code”). Such content has been broadcast pre-watershed and post-Watershed.

This is despite the fact that over the past two years or so Ofcom has published extensive guidance regarding the protection of the under-eìghteens and generally accepted standards in the context of adult sex chat and daytime chat channels. The guidance has been contained in published findings in the monthly Ofcom Broadcast Bulletin and in various sanctions decisions when fines have been imposed.

Ofcom therefore considers that some licensees’ current compliance arrangements appear to be neither sufficient nor effective. This is a cause of considerable concern.

In addition Ofcom has noted that some broadcasters of daytime chat and adult sex chat content continue to argue that the position of their channel in the ‘adult’ sector of the Sky Electronic Programme Guide ("EPG”), and the fact that parents can set up a voluntary PIN access restriction, mean that adequate measures are in place to protect children from harmful and/or offensive material and ensure compliance with generally accepted standards.

This is not the case. As highlighted in many Ofcom published decisions, where it has been decided that: sexual material is unsuitable for broadcast at a particular time; on services which do not have restricted access and do not adopt a mandatory PIN access system; and is in breach of the Code, a position in the ‘adult’ section ofthe EPG does not in itself provide sufficient contextual justification or protection to children.

All broadcasters of daytime chat and aduit sex chat content must immediately ensure they:

~ inform themselves about all published Ofcom findings and sanctions decisions relevant to their output if they have not already done so; and
~ review their compliance arrangements as appropriate to ensure that all broadcast material remains compliant with the Code.

Ofcom has commenced a number of investigations in this area. Licensees are on notice that where breaches are sufficiently serious or repeated they are likely to be considered for statutory sanction. The Ofcom Content Sanctions Committee[1] has frequently pointed out that where cases involving the broadcast of over explicit sexual material on adult sex chat channels are referred to it in future, it will consider imposing more significant penalties to ensure compliance with the Code.

Published guidance on adult chat and adult sex chat material

As noted above, Ofcom has already published a great deal of guidance about what is and is not acceptable content in terms of the Code. However, for the avoidance of doubt, We repeat here again some of the key points. Please note that the following points are not exhaustive but highlight the main guidance Ofcom has already given to broadcasters in this area. This has been either through its sanctions decisions, “Notes to Broadcasters” or published breach findings. This is no substitute to reading the Code, alongside all of Ofcom’s findings and guidance in this area.

Daytime chat broadcasters must:

~ ensure that all material broadcast is appropriate for the time of day bearing in mind audience expectations since it is transmitted before the watershed and at times when children may be in the audience[2];

~ ensure that a presenter does not behave in an overtly sexual manner (by for example simulating masturbation, lifting a skirt to reveal underwear or buttocks, stroking sexual parts of the body suggestively, or revealing cleavage and jiggling her chest to the camera)[3];

~ not show shots of bare breasts or nipples in a sexual context"[4]; and

~ not promote adult sex phone lines before the 21:00 watershed[5].

FOOTNOTES 1-5
1 The body responsible for the consideration and vi/here appropriate the imposition of statutory sanctions against broadcasters for serious breaches of Ofcom’s Codes.
2 Note to Daytime and Adult Sex Chat Service Broadcasters, Ofcom Broadcast Bulletin 137, 6 July 2009 (the July 2009 Note to Broadcasters”), http://www.ofcom.org.uk/tv/obb/prog_cb/obb137/
3 Breach Finding on Chat Café, LA Babes, Ofcom Broadcast Bulletin 136, 22 June 2009, http://wvw.ofcom.org.uk/tv/obb/prog_cb/obb136/
4 Breach Finding on The Pad, Tease 2, Ofcom Broadcast Bulletin 137, 6 July 2009, http://www.ofcom.org.uk/tv/obb/prog_cb/obb137/
5 This would breach Rule 1.3 of the Broadcasting Code
END OF FOOTNOTES

Adult sex chat broadcasters must:

~ avoid shots of anal, labial or genital areas[6];

~ not broadcast images of any real or simulated sex acts including masturbation, or intercourse, or insertion of dildos or vibrators, or oral sex[7];

~ not broadcast sexually explicit language (e.g. a female presenter saying male viewers “should spunk all over that”[8] or “l want you to spunk in my mouth. lt makes me really horny” or “she needs a nice hard cock up there”[9]);

~ avoid shots of simulated oral sex[10]; and

~ avoid prolonged and close-up shots of a presenter stimulating and messaging bare breasts, including pinching nipples and shaking them to camere, before 22:00[11].

In addition, the broadcast of website URLs whose websites provide unrestricted access to R18-­rated material, whether before or after the watershed, is unacceptable.[12]

Licensees should note that Ofcom has repeatedly made clear that the location of a channel in the ‘adult’ section of the Sky EPG, without mandatory restricted access, does not in itself provide adequate protection to under-eighteens from inappropriate material.[13]

FOOTNOTES
6 The 6 July 2009 Note to Broadcasters: Breach finding on Bang Babes, Tease Me, Ofcom Broadcast Bulletin 137, http://www.ofcom.org.uk/tv/obb/prog_cb/oob137/; Breach Finding against LivexxxBabes, Ofcom Broadcast Bulletin 118, dated 29 September 2008. http://www.ofcom.org.uk/tv/obb/prog_cb/obb118/; Sanctions decision against Square 1 Management Limited concerning its channel Smile TV, dated 10 July 2008, paragraphs 4.1 and 7.5, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/SmileTV.pdf
7 The 6 July 2009 Note to Broadcasters; Breach Finding on Bang Babes, Tease Me, Ofcom Broadcast Bulletin 120, 27 October 2008, http://www.ofcom.org.uk/tv/obb/prog_cb/obb120/; Breach Finding on SportxxxBabes, Ofcom Broadcast 119, dated 13 October 2008, http://www.ofcom.org.uk/tv/obb/prog_cb/obb119/; Sanctions decision against Satellite Entertainment Limited concerning its channel SportxxxBabes, dated 26 August 2008, paragraphs 4.2, 8.3 and 8.11, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/sportxxxbabes.pdf
8 Sanctions decision against Satellite Entertainment Limited concerning its channel SportxxxBabes, dated 26 August 2008, paragraph 4.3, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/sportxxxbabes.pdf;
Breach finding against Sex Station on Lucky Star, Ofcom Broadcast Bulletin 115, 11 August 2008, http://www.ofcom.org.uk/tv/obb/prog_cb/obb115/; Sanctions against Square 1 Management Limited concerning its channel Smile TV, dated 10 July 2008, paragraph 1.4, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/SmileTV.pdf
9 Sanctions decision against Connection Makers Limited dated 30 November 2007, paragraph 1.4, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/babeworld.pdf
10 The 6 July 2009 Note to Broadcasters
11 Breach Finding on Bang Babes on Tease Me 2, in Ofcom Broadcast Bulletin 120, 27 October 2008, http://www.ofcom.org.uk/tv/obb/prog_cb/obb120/
12 RHF sanctions decision, paragraph 8.27, dated 18 May 2008, http:/www.ofcom.org.uk/tv/obb/ocsc_adjud/rhfportland.pdf; Sex Station, Lucky Star, Broadcast Bulletin, 20 July 2009, http://www.ofcom.org.uk/tv/obb/prog_cb/obb138/
13 Breach Finding on The Pad, Tease Me 2, Ofcom Broadcast Bulletin 137, 6 July; paragraph 8.5 of the Playboy TV sanctions case dated 2 April 2009, http://www.ofcom.org.uk/tv/obb/ocsc_adjud/playboytv.pdf
END OF FOOTNOTES

You will note that all this above guidance is currently published, in one form or another, on Ofcom's website. This can be found at http://www.ofcom.org.uk/

Recent research

We also suggest you should ensure you are aware of Ofoom’s most recent research into viewer’s attitudes to sexual material on television. This independent research was published on 15 June 2009 and can be found at http://www.ofoom.org.uk/consult/condocs/bcode09/sextv.pdf.
Ofcom uses such independently commissioned and Written research to inform its decisions relating to the generally accepted standards which should be applied to content.

Queries and acknowledgement

If you have any further questions or you require clarification on any of the information included in this letter please contact [NAME] or [NAME].

Given the importance of the contents of this letter, please acknowledge both receipt of this letter and your understanding of its contents, in writing to [NAME] as soon as possible.

Yours sincerely,

Chris Banatvala

Ofcom Minutes Wrote:Date: Tuesday 14 December 2010
Location: Riverside House, Room 1.01
Time: 10:30 -11:30

Ofcom Attendees: Chris Banatvala, Director of Standards
[and 3 other members of staff]

Licensee Attendees:
[Redacted SECTION 40]


Introduction

Chris Bantvala (CB) thanked everyone for coming end set out the reasons why Ofcom had called in the Licensees. He explained thet there are deep concerns within Ofcom and at the highest level in the organisation about compliance in this sector. He said that the level of sexuel content pre and post watershed hes got stronger over the last few years.,. CB said that Ofcom would be taking very swift action from here on in and stated that the Licensees were now on notice. Ofcom did not want another case like Bang Media. Ofcom has no desire to take licences away from broadcasters -but if broadcasters continue to breach the Code, then we would have no other option. He stressed the importance of bringing standards back in line and creating a level playing field within the industry.

CB explained that when companies heid an Ofcom licensed [sic], they had legelly agreed to abide by its conditions. He highlighted that we have had too many failures, such as not providing recordings and broadcasting materiel too strong for the time of day. Therefore, for example, going forward any material requested by Ofcom must be provided "forthwith" - as required by the licence - and we are not going to get into a long protracted dieeueeien about our rights to ask for it. CB explaìned that if Licencees did not comply with their licence conditions this would result in a sanction or appropriate regulatory action.

Ofcom appreciated the audience's, and the brcadcaster’s right, of freedom of expression, however, Ofcom must balance this against its statutory duty to protect chìidren and eneure appropriate standards with regard to generally accepted standards.

CB briefly hîghiighted that adult and daytime chat services were broadcast free to air and set out the basic standards of pre and post-watershed content. He also stated that there appeared to be an arms race as broadcasters in this sector competed with each other to provide more and more explicit material. This must atop and this was the last warning.

Examples of problernatic advertising content (pre and post-watershed)

Pre-watershed clips

[Staff] showed a range of clips of pre-watershed content to illustrate unacceptable content. She referred to sexuel positions, inappropriate clothing (thongs, uncovered breasts), close up and intrusive images, and sexual behaviour such as thrusting and stroking.

[Broadcaster] asked for definitions of sexuel positions, and flirtatious behaviour and specifically requested to be shown where in legislation it states such positions are prohibited in daytime content.

CB explained Ofoorn’s duties under the Act (specifically section 319 of the Act) and our powers to produce rules and guidance to protect children and members of the public from harmful and/or offensive content. He also explained that there were no set definitions for sexual positions, flirting, etc, in the Act or the Code but he made clear that the Code, published guidance and findings and correspondence between us and industry in the form of letters and meetings has clearly set out what is acceptable and unacceptable to broadcast pre and post- watershed on a free to air service.

[Broadcaster] asked again about whether Ofcom had definitions. CB explained Ofcom's position with respeot to the above answer.

[Broadcaster] then asked if Ofcom would be willing to agree to go to a judicial review with some of the adult sex chat operators which he suggested might decide on the validity of Ofcom’s powers. CB responded by saying that any licensee was free to challenge any decisions of Ofcom by way of judicial review but Ofcom would defend its position. CB stated that Ofcom has acted within its legal remit. [Broadcaster] asked whether Ofcom would cooperate in a judicial review and CB stated that Ofcom would defend any judicial review. [Broadcaster] asked the same question on a number of occasions and CB responded stating that Ofcom would defend its position as it had acted within its legal powers.

[Broadcaster] also stated that he had requested links to Ofcom’s 2005 resaarch called 'Language and Sexual Imagery in Broadcasting: A Contextual Investigation’ and stated that the links on Ofcom's website did not work. Ofcom stated that all of our research was publically available but upon request we would forward [Broadcaster] and relevant links. [Broadcaster] asked on a number of occasions whether Ofcom would publish its research reports on sexual material. CB replied, on each occasion, stating that Ofcom has published all of its reports and these were available on the website.

[Broadcaster] asked if girls were allowed to wear thongs during daytime chat advertising. Ofcom explained that girls' buttocks should be appropriately covered and thongs were not adequate enough during the day.

[Broadcaster] stated that there were comparisons between daytime chat content and music channels. Ofcom explained the editorial context was different between the two and stressed that it sexual content was broadcast on a music channel that was not editorially justified then Ofcom would breach that material. CB explained that music videos were also frequently edited differently and quickly to ensure that there was no lingering shots or inappropriate material. The daytime chat material did, on occasion, include the same shot for minutes with women gyrating and thrusting their bottoms to camera.

[Broadcaster] then refered to the meeting es being pointless end stated that “we [the licensees] will go and sort this out ourselves without ’these plonkers" CB then asked [Broadcaster] to stop being “disruptive and abusive” and stated that if [Broadcaster] continued to be disruptive then he would be forced to remove him from the meeting. CB stated that the purpose ofthe meeting was for Ofcom to be helpful and constructive and to ensure that the industry complied with the Code.

The majority of attendees agreed that all of the pre-watershed clips were inappropriate for daytime broadcast.

Post-watershed clips

[Staff] showed a range ot post-watershed material clips to identify a number of problematic themes. She highlighted concerns regarding strong material immediately after the watershed; violence (asphyxiation/violent spanking); interactlcn between presenters (male and female and two females); and nudity (in particular the placing of hands and objects against genitals).

[Broadcaster] asked for clarification about whether or not nudity was acceptable. Ofcom said that we have not prohibited nudity but stressed that once presenters are naked and then place their hands or an object against their genitals this increases the strength of the sexual material and if there is visible contact and movement it could be considered to be adult-sex material.

[Broadcaster] asked for clarification about whether there could be more than one presenter at a time, even if they didh’t touch each other. Ofcom said that it does not prohibit more then one presenter on screen at a time but stressed that when presenters interact with each other this increases the likelihood of the material becoming more sexuaily explicit, in particular, Ofcom stated that actions such as the “sucking of breasts” was not acceptable.

BCAP Code - Ofcom guidance on the advertising of telecommunications-bases [sic] sexual entertainment services

[Staff] introduced the proposed guidance note on the advertising of telecommunications-bases [sic] sexual entertainment services and daytime chat service. He discussed tne basic principles of the BCAP Code including protecting children and not broadcasting pornographic material free to air. He compared the relevant BCAP rules to those previously applied in the Broadcasting Code.

[Broadcaster] asked Ofcom what research we carried out to support the guidance and asked for documented evidence of this. CB and [Staff] explained that Ofcom has undertaken various research in this area, which has been published. They also referred to the BBFC research ’Where Do You Drew the Line?”. CB stated that Ofcom takes into account this research in terms of its findings, as well as the Code and the guidance. He advised [Broadcaster] to contact Ofcom for further information or links to our research.

CB said that if any Licensees had any comments about the guidance than Ofcom be happy to take these into account before pubiìcatìon.

Conclusions

CB reminded broedcasiers to bear in mind the current political context and the recent focus on the sexualisation and commercialisation of children in broadcasting. He stressed Ofcom's approach to this issue had noi in any way been influenced by discussion with third parties and no discussions had taken place with government about these channels.

CB also higlighted again that these services were free to air and stressed the importance of appropriate standards in this area.

Next steps

Hard copies of the BCAP guidance were handed out to all of the attendees to take away with them. [Staff] then sent a follow up email to all the Licensee contacts who attended and asked for any comments to be emailed to Ofcom by Friday 17 December 2010.

14 December 2010.

Quote:Reference: 1-182616364

Many thanks for your request for information from Ofcom.

You said:

“What rules are there what guidance and what warning has been issued to tv channels about live male-female sex in both encrypted and unencrypted tv programs? By encrypted I mean ones with mandatory access restrictions. In the Sanctions decision against SEL on 28 August 2008 4.5 “SEL voluntarily ceased to air, for the time being, any content comprising simulated sexual activity between a man and a woman” and no broadcaster has had any live mixed sexual activity since though many have recorded sexual activity, and have live same sex activity, simulated or otherwise. It’s obvious there is more going on that a temporary voluntary restriction by one broadcaster as this restriction has lasted 3 years and applies across the whole of a competitive market.”

Our understanding from your request is that you would like further information on:
· What rules and guidance are in place regarding live male and female sex in both encrypted and unencrypted material.

· The sanctions decision regarding SEL August 2008.

· Whether there are any restrictions in place regarding male and female/same sex sexual activity.

I hope the following information will be helpful.

The Regulation of Adult Channels

Ofcom has a number of rules about the broadcast of sexual material on television. In short:

· Hardcore pornography (i.e. material that would be granted an R18 certificate by the British Board of Film Classification (“BBFC”)) is not permitted on any Ofcom service.

· Softcore pornography (i.e. material that would be granted the equivalent of an 18 certificate by the BBFC) is only permitted under encryption and PIN protection and then can only be transmitted between the hours of 22:00 and 05:30.

· All other material must be suitable for free-to-air services and, in particular, must not be inappropriate for pre-watershed viewing.

Since 1 September 2010 all PRS-based daytime and “adult chat” television services have no longer been regulated as editorial content but as long-form advertising i.e. teleshopping. As stated above, from that date the relevant standards code for such services became the BCAP Code rather than the Broadcasting Code. The relevant rules are set out below:

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.

Guidance

In January 2011 Ofcom also published guidance on the advertising of daytime and adult chat services. This guidance clearly sets out to all relevant licensees what Ofcom considers to be acceptable to broadcast on these services, both pre- and post-watershed.

This was published in January 2011 and can be found using the following link: http://stakeholders.ofcom.org.uk/binaries/broadcast/guidance/bcap-guidance.pdf

Please note that this guidance specifically states that: “ensure that where more than one presenter is in shot greater care is taken to avoid broadcasting the above images or language”. This guidance does not distinguish between same sex or mixed sex presenters, nor does it prohibit more than one presenter appearing on screen.

SEL Sanction

The quote you refer to in the SEL Sanction, published 28 August 2008 was a response from SEL rather than a direction from Ofcom. SEL voluntarily decided to suspend their own broadcasting of material featuring two presenters and Ofcom did not instruct them to do so.

Whether there are any restrictions in place regarding male and female/same sex sexual activity

Please refer to the rules and guidance set out above.

I hope this information proves useful. Please feel free to email me should you have any further queries.

Minutes 14 Dec Wrote:when presenters interact with each other this increases the likelihood of the material becoming more sexuaily explicit, in particular, Ofcom stated that actions such as the “sucking of breasts” was not acceptable

1-182145256 Wrote:Dear ,

Many thanks for your request for information from Ofcom, which we received on 24 June 2011.

You said:

There are many types of television that can cause offense. Included are gambling, drinking, horror, supernatural, evangelism, animal cruelty (includes horse races with fatal accidents), exploitation, injurous sports such as wrestling and boxing, womens boxing, prank shows that cause genuine fear or distress to participants, confrontational Jeremy Kyle type shows where not very bright people are manipulated into revealing private marital matters for the program makers profit, shows where the public are invited to perform dangerous stunts, stunt shows like Jackass, voyeuristic medical shows, ghost shows, high pressure money lending adverts, reality contests inadequates seem to be set up for conflict in the name of entertainment and many other types of show.

In many cases the content goes far beyond the standards that people tolerate in their own lives at home and at work.

Ofcom is required by law to have a Codes setting out Standards for Generally Accepted Standards for Television and Radio Services and by law Ofcom must “have regard” “as appears to them to be relevant” to the degree of offence “of ANY particular sort of material”.

Your Code says material that may cause offence “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”.

I hope the following information will give you a greater understanding of Ofcom’s work and our responsibilities, and research, in this area.

Background

Ofcom is required under the Communications Act (“the Act”) to draw up a Broadcasting Code (“the Code”) which sets out standards for the content of television and radio services. The Code is drafted in light of the European Convention on Human Rights (“the Convention”). In particular, the right to freedom of expression is expressed in Article 10 of the Convention. It includes the freedom to hold opinions and to receive and impart information and ideas.



The Code sets out clear principles and rules which allow broadcasters freedom for creativity, and audiences freedom to exercise viewing and listening choices, while securing the wider requirements in the Act. Accordingly, the rules in the Code seek to ensure, in a manner that best guarantees an appropriate level of freedom of expression, that members of the public, and in particular under-eighteens, are adequately protected from the broadcast of harmful and/or offensive material.



The Code can be found at:

http://stakeholders.ofcom.org.uk/broadcasting/broadcast-codes/broadcast-code/



Generally Accepted Standards

In providing this protection the Act requires that broadcasters apply “generally accepted standards” to the content of television and radio services. In applying the rules, Ofcom must keep itself informed, and updated, on what are regarded as the generally accepted standards of the time. To achieve this, the Act further requires that Ofcom should, from time to time, commission regular research to understand public attitudes. These public attitudes provide an insight into generally accepted standards. Such insight is particularly relevant when applied to the area of harm and offence where expectations from the public will vary over time and also by individual or group. As you have highlighted recent examples of the type of research we have undertaken on issues of harm and offence include offensive language and sexual material.



Whilst research is extremely helpful in presenting a picture of the levels of viewer acceptability to certain issues, the Code makes clear that it is crucial to take account of the context within which content is broadcast in deciding whether generally accepted standards have been applied.



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.



Such context might include the time of broadcast, the channel the material is broadcast on, whether the broadcaster signposted the content either through a warning before the start of the programme or through pre-programme publicity and the editorial content of the programme such as whether it was a comedy, a drama or a factual programme. So for example, the contextual justification for the broadcast of more adult material, which includes sexual content, might include: a late night transmission time; a pre-programme warning from the broadcaster that the programme includes nudity, and; scheduling on a channel which regularly broadcasts material aimed at an adult audience that would not appeal to younger viewers. These assessments are all made on a case by case examining the individual contextual factors on every programme we receive a complaint about.



Responses to your specific questions:

Ofcom has not limited its research to sexual imagery and offensive language. Since the first Broadcasting Code was published in 2005 a range of research has been undertaken to inform Ofcom of the public’s view on a number of relevant issues, including protecting children, smoking, alcohol and drugs and religious programmes. Examples of these can be found at:

http://stakeholders.ofcom.org.uk/market-data-research/tv-research/

http://stakeholders.ofcom.org.uk/binaries/research/radio-research/smoking.pdf

http://stakeholders.ofcom.org.uk/binaries/research/radio-research/environment.pdf

http://stakeholders.ofcom.org.uk/binaries/research/radio-research/religious-programmes.pdf

http://stakeholders.ofcom.org.uk/binaries/research/radio-research/rpandbc.pdf



Whilst this research informs Ofcom’s approach, the way in which offensive material is regulated depends upon an assessment of the context applied by the broadcaster, as detailed above. Therefore whilst we may not have undertaken research on all of the categories you have referred to, the way in which Ofcom investigates the degree of offence is based upon a full assessment of the context in which the potentially offensive material appeared to the viewer. This is undertaken on a case by case basis and based upon the individual circumstances of each programme or series. These assessments are published in the Broadcast Bulletin every two weeks and can be found here:

http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/



The decisions in the Broadcast Bulletin provides a source of further guidance to broadcasters where Ofcom sets out why particular content investigated is in breach of the Code. In particular, when presenting breach cases relating to harm and offence the findings will specifically identify the reasons why Ofcom considered that the context was insufficient for the offence generated.



Ofcom’s approach to generally accepted standards aims to strike the right balance between encouraging the broadcaster’s freedom of expression, creativity and challenging content with the legislative requirements placed upon Ofcom as set out in the Communication Act 2003.



You should 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/



I hope this information proves useful.

Kind regards,




Complaints Analysis and Tracking

Content, International and Regulatory Development (CIR)

:: Ofcom
Riverside House
2a Southwark Bridge Road
London
SE1 9HA
020 7981 3000

http://www.ofcom.org.uk



This email is sent as routine correspondence from the Content & Standards team and has not been treated as a response to a request for information under the Freedom of Information Act 2000. If you think it should, please let us know