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Broadcasting Regulation Newsletter – November/December 2010
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Date: 19/01/2011
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Bringing you regular news of key developments in broadcasting regulation.
OFCOM
New product placement rules: effective from 28 February 2011
Ofcom has published a new Section 9 of its Broadcasting Code, which will be effective from 28 February 2011 and reflects Parliament’s decision to relax the current outright prohibition on product placement. Please see our early warning on product placement and check our website for a more detailed article, which will be available shortly.
New rules
Consultation on new procedures for handling broadcasting complaints, investigations and sanctions, open to 11 February 2011
Having revised its procedures for handling broadcasting complaints and sanctions little more than a year ago, Ofcom is proposing a further overhaul. Among the key changes proposed, Ofcom will provide its “preliminary view” on investigations to relevant parties earlier in its process. Ofcom will remove its “internal review” mechanism, as well as the Broadcasting Sanctions Committee. Ofcom proposes that the consideration and determination of sanctions should be carried out by any person within Ofcom with appropriate delegation from the Ofcom Board.
Ofcom's consultation
Consultation on revising penalty guidelines, open to 11 February 2011
Ofcom is also consulting on revising its penalty guidelines to make them “less complex” and “more flexible”. The aim is to place a greater focus on deterrence, in light of Ofcom’s experience of licensees who have committed serious and repeated contraventions of the Broadcasting Code, without apparently being deterred by the prospect of penalties. Ofcom is proposing to look at a sanctions case “in the round”, having regard to any factors that are relevant to the facts of the case, including precedents. Having reached a figure, this will then be adjusted upwards for failure to co operate with Ofcom’s investigation, and Ofcom will then check that it has not exceeded the statutory maximum for the particular licensee in question.
Ofcom’s consultation
Revocation of all licences held by Bang Channels Limited and Bang Media (London) Limited, 25 November 2010
This case is almost certainly one of those that have led Ofcom to propose placing a greater focus on deterrence. Ofcom has revoked all licences held by Bang Channels Limited and Bang Media (London) Limited, on the grounds that they are no longer “fit and proper” to hold Ofcom licences. It is surprising that the revocation was not effected sooner, especially as a £157,250 fine imposed on Bang in July 2010 had not been paid. The revocation on 25 November followed 48 separate breaches of Ofcom’s Code by Bang over a 19-month period. Bang failed to provide recordings of five programmes to Ofcom. Ofcom recorded nine breaches of the BCAP Code against Bang in relation to material that was broadcast between 9 and 16 November. Bang also failed to comply with Ofcom’s direction on 19 November to cease broadcasting immediately.
Ofcom’s decision
Note to broadcasters on “apps” and audience participation in programming, 8 November 2010
Ofcom has confirmed that the use of “apps” (software applications downloaded to mobile phones and related devices) as a way to charge the audience to participate in programming is acceptable in principle. In order to comply with the Ofcom Code, however, the mechanism for payment will need to be a form of telephony service that is based on “revenue-sharing arrangements”, for example with the relevant platform owner or service provider. Broadcasters considering using paid-for apps will need to ensure that the primary purpose of the programme continues to be editorial, and that the promotion of the featured app within the programme is not unduly prominent. Ofcom has also clarified that free apps, such as those that offer programme-themed games, or those that enable users to access behind-the-scenes footage of a particular programme, which are already in relatively common usage in programmes, are generally regarded as “programme-related material”, and therefore subject to different Code rules.
Ofcom’s note
Sponsorship: Family Food Fight with Flora, Five, 18 May to 29 June 2010
The Ofcom Code was breached by the combination of sponsorship credits for a series of six 30 minute programmes, which showed a parent and child cooking a dish using Flora Buttery, with a voiceover (“Family Food Fight with Flora – recipes for the heart”), as well as various visual and verbal references during the programmes themselves to choosing to use low-fat spread rather than butter as a means of keeping your heart healthy. Ofcom considered that repeated references to butter in a negative light and explicit and/or visual references to low-fat alternatives as a means to keep your heart healthy amounted to promotional generic references to Flora’s products. This was further emphasised by the sponsorship credits, which associated Flora’s branded product with heart health. Promotional generic references to a sponsor or to any of its direct or indirect interests are prohibited.
Ofcom’s decision
Sponsorship: Inside Incredible Athletes, Channel 4, 29 August 2010
The Code was breached by two sponsorship credits for Inside Incredible Athletes, which profiled several competitors in the upcoming London 2012 Paralympic Games. The credits both contained images of the official London 2012 logo. One referred to BT, with the voiceover stating: “BT, proud partner of the London 2012 Paralympic Games”. The other referred to Sainsbury’s, with the voiceover stating: “Over four thousand of the world’s greatest athletes will be pushing themselves to their absolute limits at the London 2012 Paralympic Games, and everyone at Sainsbury’s is very proud to be supporting them.” Both credits breached the Code, on the basis that they failed to make clear that the sponsors were sponsoring the programme, as opposed to the London 2012 Paralympic Games.
Ofcom’s decision
Privacy/doorstepping: complaint by Zebra Collection, Inside Out (London), BBC1 London, 11 January 2010
The BBC did not follow best practice when doorstepping Zebra Collection, a modelling agency, and this resulted in an unwarranted infringement of the agency’s privacy. “Doorstepping” is the filming or recording of an interview (or attempted interview) with someone, without any prior warning. It should not take place unless a request for an interview has been refused or it has not been possible to request an interview, or there is good reason to believe that an investigation will be frustrated if the subject is approached openly, and it is warranted to doorstep. In this instance, the BBC had insufficient evidence that the owner of the agency, Mr Garner, would frustrate the investigation if approached openly. Additionally, the programme makers had not attempted to contact him to request an interview before doorstepping Zebra. Ofcom did not uphold other complaints relating to the alleged unfair treatment of Mr Garner and Zebra, and to the alleged infringement of Mr Garner’s privacy.
Ofcom’s decision
BBC TRUST
Insufficient editing: The Curse of Steptoe, BBC HD, 9 December 2009
The Curse of Steptoe was first broadcast on BBC Four in March 2008, and then again in December 2008. A complaint from the brother of Maureen Corbett, the deceased second wife of Harry H. Corbett, was partly upheld by the BBC Trust, because the programme’s portrayal of the relationship between Maureen and Harry, and Harry’s separation from his first wife, did not correlate with the facts. It also found that the implication in the drama that Maureen and Harry’s child had been conceived as a result of a casual relationship was inaccurate and unfair. Following these findings, the programme was re-edited, and shown again on BBC HD in December 2009. A further complaint from Maureen Corbett’s brother was then also upheld because, notwithstanding the re-editing of the programme, the overall portrayal of the relationship between Maureen and Harry remained that of a casual relationship, and the BBC Trust considered this was still unfair and inaccurate.
BBC Trust's Finding
For further information, please contact:
Eleanor Steyn
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Simkins' early warning bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.
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