Ofcom Discussion

Ofcom decided that 18-strength material, such as a vagina, is not permitted on free TV if it is intended for sexual arousal.

There is no legal requirement for this.

Ofcom decided all on its own that sexually arousing content is contrary to "generally accepted standards". Its very debatable whether the 2005 public attitudes survey actually supports this interpretation (despite the disproportionate number of woman from conservative religious backgrounds).

The 2009 survey seemed to support relaxation of the rules - indeed the most offensive sample clip was from an Alan Titchmarsh lunchtime show where sex toys were compared, rather than a Playboy clip showing genuine sex acts (oral, masturbation, copulation), though the Playboy show did not show contact detail. According to the 2009 survey, the Alan Titchmarsh show was unacceptable because of time of day and the channel. Playboy content was considered acceptable by most people becuase it was late and in the Adult section.

Despite the 2009 survey appearing to support relaxation, the revised Broadcast Code was unchanged.

This is one of many reasons why some people believe that Ofcom has acted in a way that is perverse and possibly open to legal challenge.

Winston Wolfie

"The fact that R18 material is legally available to buy in sex shops, but prohibited on TV, proves that OFCOM think they are above the law"

Whilst I agree with what you say and agree with the general sentiment on the forum that Ofcom need hitting with a big stick I do not think that the fact that R18 material is available elsewhere would really be all that effective. R18 material in sex shops is not covered by Ofcom, instead it is trade/marketing regulations. Ofcom's mandate is to deal with broadcasted media, so if one of the channels for instance recorded and sold a DVD which was at R18 level then Ofcom could make noise but I do not think that they could stop it.

Eccles

Thanks for the response to my last post. Your point about the police being used as a competition tool is perfectly correct. The question is whether or not Ofcom look at who made the complaint or just the complaint itself. I suspect they only do not. I would imagine most 'complaint's come in under a false name or as annonymous. It is an arguable point whether Ofcom should look to see whether the complaint is a staged one by a competitor. I am not familiar with the politics between the channels but such things are hardly new.

From what I have seen on here it would appear that Ofcom seem to go after Bang more readily than others. From what little I have seen (as I only have freeview and can seldom stay awake long enough) there are channels which are more explicit than Bang. So it would not be unreasonable for Bang to query why they get fined more than the others (if that is the case).

Ofcom of course will go after them on the basis that if they have got them once then it will not be seen as unusual to do so again. In theory, if Ofcom were pursuing one channel with more vigour than others it could be argued that it is restraint of trade. To argue that, and it would ultimately need to go to the european court, would take at least 6 years; and because Ofcom is there to preserve 'public decency' then there would be no injunction against further decisions. They would merely be reserved for review pending the outcome of the decision. Realistically could any of the channels take 6 years of fines and as well as the risk of a massive legal bill? I sadly doubt it.

In relation to your comments about perverse decisions the problem in the courts is that deciding if a decision is perverse means basing it on previous decisions not the public attitudes survey (courts dislike such things). Ofcom have been very careful in their dealings with bang in that they have been consistant in punishing them. Bang could conceivably argue that it is perverse they do not persue other channels with the same intesity but I would not want to try and run a case like that to court as perverse decision appeals are seldom tried in civil courts and they are notoriously hard to prove.

The attitudes survey has shown a change in values and Ofcom seem very reticent to move with the changes. That said Ofcom want to preserve their position and also want to fine companies as they get slammed, and rightly so, if they run a costly investigation and come up empty. The problem with the survey is that it all depends on the questions and also the audience and Ofcom will always fall back on the 'think of the children we are erring on the side of caution arguement'.

As much as i wish they could I just don't think one channel can challenge ofcom and they are unlikely to band together and bring a class action. The government could step in and make legislative changes but would they be willing to intervene??

Maybe bang may be better broadcasting in the way sexstation does and then see if any other channels become ofcom enemy number one. That would then potentially give them evidence for appealing the fines they have been hit with.

(08-08-2010 09:15 )lan1701 Wrote:  Winston Wolfie

"The fact that R18 material is legally available to buy in sex shops, but prohibited on TV, proves that OFCOM think they are above the law"

Whilst I agree with what you say and agree with the general sentiment on the forum that Ofcom need hitting with a big stick I do not think that the fact that R18 material is available elsewhere would really be all that effective. R18 material in sex shops is not covered by Ofcom, instead it is trade/marketing regulations. Ofcom's mandate is to deal with broadcasted media, so if one of the channels for instance recorded and sold a DVD which was at R18 level then Ofcom could make noise but I do not think that they could stop it.

Ian1701, I'm well aware of what OFCOM's jurisdiction is...

The point I was making is that OFCOM are a law unto themselves. They ignore the facts and hide behind excuses like "protecting children" and all the other bullshit. The truth is it's just their own personal views on what they believe is acceptable and unacceptable. They are part of the previous Government's "Nanny State", and need to be replaced with regulators more in tune with modern life.

On the flip side of the coin, you've got certain people in the UK Adult Industry who don't want R18 material on TV either. They believe it would affect their DVD & Internet revenue, so it's not just OFCOM and the previous Government.

(08-08-2010 20:21 )Winston Wolfe Wrote:  On the flip side of the coin, you've got certain people in the UK Adult Industry who don't want R18 material on TV either. They believe it would affect their DVD & Internet revenue, so it's not just OFCOM and the previous Government.

Clear conflict of interest here if owners of licenced sex shop chains also operate a significant %age of adult channels, and use their influence to restrain trade in one sector to benefit the other.

Who is responsible for Competition issues in Telecoms and Broadcasting?

Ian, refreshing to have input from someone who really knows the law, rather than semi-informed speculation from the likes of me.

Don't worry about not being up late by the way, on the rare occasions I see shows before midnight they seem every bit as hot as the late night content. If anything they seem hotter. I think the Sponsorship consultation identified late evening (pre midnight) as the peak call time, not the wee hours.

(08-08-2010 09:15 )lan1701 Wrote:  Eccles

Thanks for the response to my last post. Your point about the police being used as a competition tool is perfectly correct. The question is whether or not Ofcom look at who made the complaint or just the complaint itself. I suspect they only do not. I would imagine most 'complaint's come in under a false name or as annonymous. It is an arguable point whether Ofcom should look to see whether the complaint is a staged one by a competitor. I am not familiar with the politics between the channels but such things are hardly new.

As I say on the governent consultation website, I struggle to think of any other regulator that "investigates every complaint". The police no longer investigate every fraudulent credit card use, having delegated this to the banks. Council noise enforcement officers do not jump every time the phone rings...

And enforcement is variable. Ary Digital has at least a 6 year track record of advertising breeches, possibly with monetary implications, and 2 disgusting recent incidents involving animals being killed on live TV in talent shows, yet sanctions are few and far between, despite the same excuses being trotted out each time.

Quote:From what I have seen on here it would appear that Ofcom seem to go after Bang more readily than others. From what little I have seen (as I only have freeview and can seldom stay awake long enough) there are channels which are more explicit than Bang. So it would not be unreasonable for Bang to query why they get fined more than the others (if that is the case).

Surprised to see a pussy flash on one of the tamer shows the other night. Don't suppose that will even get a mention. Ofcom complains of sexualised behaviour, but flicking through the channels the other night pretty well all had content that could only be described as intended for sexual arousal and to promote sex-chat calls, precisely what Ofcom says BangBabes do. One channel had a topless woman clearly miming a prolonged foot fuck. Another had a babe in a tight rubber gear presenting her rear parts to the viewer. A babe a see-through top and tiny thong bounced up and down with outer labia visible. A camera showed the lower back and buttocks of completely naked woman (close enough to see the little back hairs) - not explicit but so close as to be intimate. A topless woman in expensive sexy lingere and thigh length PVC boots bounced her buttocks up and down as well as trusting fingers towards hert mouth. Two women alternated sucking each others nipples. This is typical of content that Ofcom routinely ignores, yet it is easily the same strength as BangBabes content (slips aside).

(Update - just seen a close up on a fit birds crotch, clearly showing plump outer labia because she is wearing skimpies. Close enough to see the goose bumps Happy days.)

Quote: Ofcom of course will go after them on the basis that if they have got them once then it will not be seen as unusual to do so again. In theory, if Ofcom were pursuing one channel with more vigour than others it could be argued that it is restraint of trade. To argue that, and it would ultimately need to go to the european court, would take at least 6 years

See below

Quote:... and because Ofcom is there to preserve 'public decency' then there would be no injunction against further decisions. They would merely be reserved for review pending the outcome of the decision. Realistically could any of the channels take 6 years of fines and as well as the risk of a massive legal bill? I sadly doubt it.

In relation to your comments about perverse decisions the problem in the courts is that deciding if a decision is perverse means basing it on previous decisions not the public attitudes survey (courts dislike such things). Ofcom have been very careful in their dealings with bang in that they have been consistant in punishing them.

Consistent punishing Bang? Perhaps.
Consistent across the sector? No.
And while Bang don't help themselves, many Ofcom pronouncements are unclear to the point of incomprensibility. Clear rulings such as outer labia and anal detail being unacceptable are the exception rather than the norm. Ofcom recently found AsianBabes in breech because a presenter was wearing flesh coloured pants that a viewer could mistake for nudity. Excuse me on this one, but surely if the picture quality is so poor that a viewer cannot distinguish between pants and fanny, then it can hardly be explicit can it? A female BBC newsreader claimed she would present the news naked if allowed, but the BBC does not allow it, so her clothes were a legitimate business expense. I now believe her to be naked from the waist down, below the desk. Can I complain? A viewer might believe that the shagging scenes in Spartacus on Bravo were real (now repeated in a continuous loop), can I complain?

Seriously though, if clear cases of pervese decision making were found, could the Ofcom Board be personally served with legal warnings to Desist, and warned that if it went to court they might be found to acting Ultra Vires and PERSONALLY sued for costs for not stamping it out? [Wetsminster Cemetaries]

Asian Babes were also punished for having many presenters on screen. Apparently this raises the erotic temperature. In practice this means having the camera further away and showing significantly less detail but more background above and below (because of the inverse square law. See, school maths does come in handy).

Ofcom made up the rules about flesh coloured pants and more presenters being more erotic - there has never been a hint of these before.

Quote:... The problem with the [attitudes] survey is that it all depends on the questions

Who signed off the structure of the survey? Despite 5 years of bitter complaints about the previous one? Oh yes, Ofcom.

Did they check with the Government Statistical Service to see if it met official govenment guidelines? Doubt it.

Was it structured in a way that allows Ofcom to say "This is legal, that is not"? No. And as a taxpayer I find that an unacceptable waste of public money and irrational.

Here's an entirely different reason for dissatisfaction with Ofcom, and I fully understand that this one is outside Ofcom's control, though it would not hurt Ed Richards to write a letter to that nice Mr Cameron suggesting they give up some powers, in the interests of remedying a severe departure from the British constitutional principle of separation of powers:

Legislation: Ofcom decide what the Broadcasting Code is. (Don't care that this is secondary legislation, they are deciding the legal framework.)

Fishing: Ofcom decide to spot check a channel (or a complaint is received).

Policing: Ofcom decides that content is actionable and refers it for consideration.

Prosecution: Having referred a programme to itself, Ofcom then considers the content in detail and invites the broadcaster to comment. They effectively act as CPS.

Judgement: If Ofcom decides to pursue the matter, it refers the show to its own Content Committee for a hearing. The Content Committee consists of luminaries who may have helped draw up the Broadcasting Code in the first place, set enforcement policy, and/or line manage people investigating the shows.

Appeal: The Broadcaster can appeal - to Ofcom.

Punishment: Finally the Sanctions Committee may reconsider the content and decide how heavy a fine to impose.

So Ofcom act as all of Legislator, Investigator, Policeman, Prosecuter, CPS, Judge and Appelate Court.

Ian1701, if you are conversant with the law, perhaps you could tell us how OFCOM can take a clause from section 319(2), which instructs OFCOM on WHAT and HOW THEY are to create their Code using "generally accepted standards" and simply restate the clause (with one minor amendment) in their Standards Code? In effect, OFCOM have instructed their licensees to create their own Code using these fabled "generally accepted standards" - they've FAILED to do as instructed BY LAW and passed the buck to the broadcasters...and needless to say, when a broadcaster's idea of what the Code should be disagrees with the Content Board's narrow-minded, anti-'adult sex material' mindset, OFCOM fine the channel.

OFCOM are far from consistent. Indeed, in Bulletin 151 they TWISTED their own worthless 'guidance' in order to find Bang Media "in breach".

Moreover, the Comms Act is absolutely clear that OFCOM are to protect the under eighteens and provide adequate protection to the public from "the inclusion of offensive and harmful material". Yet, OFCOM have decided that "offensive material" CAN be broadcast if the BROADCASTER believes it is "justified by the context" (Rule 2.3). This is a clear BREACH of OFCOM's DUTIES according to the law. And of course, whenever OFCOM decide the broadcaster was 'wrong' in their interpretation of the contextual justification for including "offensive and/or harmful material" (OFCOM's words not mine or Parliament's) it isn't OFCOM that get dragged over the coals for failing in THEIR remit but, the channel.

OFCOM are lazy, incompetent, lying, twisted little shits. I do not believe the law allows them to act in anyway that is ILLEGAL yet, this is EXACTLY what OFCOM have done. They are CROOKS, obtaining money with menaces on fraudulent grounds - if UK law recognised 'entrapment' OFCOM would certainly fall foul of it because Rule 2.3 is blatantly ILLEGAL according to the Comms Act 2003 clause 319(2)(a)&(f).

Their section 1 stakeholder guidance is also blatantly discriminatory without any grounds or proof to support OFCOM's belief that 'adult sex material' is either dangerous to minors or indeed, unjustifiable by 'the context'. Adult sex material is PERFECTLY justified in an adult sex-entertainment context. OFCOM's stance on this matter is also in direct violation of the High Court ruling re 'hardcore' R18 from the year 2000. The High Court found that "Based on the available evidence a reasonable person would conclude that the risk of harm to children viewing R18-type material is insignificant". If this were not so then hardcore R18 would NOT be legally available in the UK and OFCOM's bullshit would simply be reflecting the law. However, this is not the case and OFCOM are in direct violation of every principle of human rights and Freedom of Expression.

OFCOM need challenging in Court NOW! Indeed, they should have been dragged before the Courts the day they published their pathetic and discriminatory excuse for a 'Standards Code'.

As far as Standards go, OFCOM haven't got a fucking clue - and as I worked for BSI Standards for over 10 years I DO KNOW WHAT I'M TALKING ABOUT!

(08-08-2010 22:23 )eccles Wrote:  

(08-08-2010 20:21 )Winston Wolfe Wrote:  On the flip side of the coin, you've got certain people in the UK Adult Industry who don't want R18 material on TV either. They believe it would affect their DVD & Internet revenue, so it's not just OFCOM and the previous Government.

Clear conflict of interest here if owners of licenced sex shop chains also operate a significant %age of adult channels, and use their influence to restrain trade in one sector to benefit the other.

Who is responsible for Competition issues in Telecoms and Broadcasting?

I've mentioned this previously on other threads, eccles...

Clearly there are conflicts of interest, as I found out due to potential deals for projects I'm involved in.

Adult channel owners, who have all bases covered in terms of TV, DVD and the Internet, won't have as much incentive to challenge the regulators/authorities (unless there was a dramatic fall in TV revenue).

Those who have no business interest in the channels, and only get their revenue from DVD and/or Internet sales, certainly won't want R18 material on TV (unless some sort of deal was agreed).

The regulators/authorities obviously created the problem in the first place, but smart business types found ways around it and you have the current situation as it stands.

Winston,

Thoughtful and informed as ever. My question was rhetorical. The regulator charged with investigating competition issues in broadcasting is ...
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bumroll...
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Ofcom!


By the way, under the Freedom of Information Act, any person can ask Ofcom to supply recordings of broadcasts found to be in breech for legitimate research purposes.

Ministry of Justice guidance states "A person may request any information 'held' in any recorded form by a public authority". Ofcom may insist on knowing your name and address.

Exemptions to the Foi are listed here http://webarchive.nationalarchives.gov.u...ptions.htm and as far as I can see there would be no taste or decency grounds for rejecting disclosure, particularly as almost all the material in question is either cert 15 or 18, with a minute fraction of supposed R18, aa legal category under UK law.

It might be argued that a complaint is vexatious ("seeks information of a frivolous nature, if it is likely to cause distress or irritation without justification or if it is aimed at disrupting the work of an authority or harassing individuals in it") but that does not hold water if assessing the accuracy of Ofcom Breech writeups or consistency.

Recent article in the Telegraph highlighting how over burdensome Ofcom are against the media. Are they trying to please their new masters or will this be yet another nail in their coffin.

Neil Midgley writes

I have written before that I think that Ofcom, the media regulator, regulates the media too much. I’m not alone in that: BSkyB can sometimes barely contain itself when faced with yet another probe from Ofcom chief executive Ed Richards, and ITV has had its share of robust debates with the regulator.
But today Ofcom has outdone itself: it has set out to regulate something that doesn’t even exist yet.
Ofcom has asked the Competition Commission to investigate the market for pay-TV movies – a market which, surprise surprise, is dominated by Ofcom’s old friend BSkyB. Ofcom worries about BSkyB’s domination of the market for pay-TV rights to Hollywood movies, and also how BSkyB wholesales (or doesn’t) its resulting movie products to other TV providers.
But it isn’t just Sky’s existing pay-TV movie channels that concern Ofcom. It’s what Sky might do with movies in the future.
“To date, subscription to packages of linear channels showing first-run movies has been the most compelling movies offer on TV,” said Ofcom today. “However, the importance of linear movie channels appears to be gradually declining over time. Subscription services offering recent movies on demand present an important long-term proposition.”
So far, so uncontroversial. Everyone knows that on-demand viewing is on the rise. But Ofcom didn’t stop there. “In the longer term we are concerned that as Sky develops its Subscription Video on Demand services, its current market power in relation to linear channels could be transferred across to these new services,” it continued. “Therefore, it is unlikely that, absent intervention, competition will develop and consumers will benefit in terms of choice and innovation.”
Let’s be very clear: Sky hasn’t yet launched an on-demand movies service from its set-top boxes. But Ofcom thinks it had better tell the Competition Commission to get in there first, and regulate it.
Even for the very busy Ofcom and the very energetic Mr Richards, trying to regulate something that doesn’t exist yet is pretty good going. It clashes with the free-market instincts I cherish, and it genuinely saddens me.
The British media are hopelessly, massively over-regulated. American TV executives who look at the UK stand open-mouthed with amazement at how much red tape British commercial broadcasters have to put up with. We have world-beating creative companies, but not because of regulatory interventions like this.
The DCMS is currently looking at how to scale back Ofcom’s powers, and legislation to clip its wings could come in a Public Bodies Reform Bill later this year. If today’s announcement is any indication of how the current Ofcom intends to carry on, that legislation can’t come soon enough.


http://blogs.telegraph.co.uk/finance/nei...he-future/