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Broadcasting Regulation Newsletter – January/February/March 2011
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Date: 28/03/2011
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Bringing you regular news of key developments in broadcasting regulation.
DCMS
Transfer of responsibilities from BIS to DCMS
On 18 January 2011, David Cameron announced that competition and policy issues relating to media, broadcasting, digital and telecoms sectors would now fall within DCMS’s remit. These issues include: merger and competition cases in these sectors; sponsorship of all content industries, including computer games and publishing; and internet policy and governance, including implementation of the Digital Economy Act.
DCMS news release
Local TV
The Culture Secretary, Jeremy Hunt, launched his “action plan to make his vision of local TV a reality” in January 2011. He believes that the local TV initiative will offer communities a “new voice” and provide local perspectives directly relevant to them. The action plan proposes that the channels should be broadcast on digital terrestrial television, and that they should be displayed prominently on the electronic programme guide. Mr Hunt’s goal is to award licences by the end of 2012 and for local TV to be operational soon after that. It is unclear, however, whether advertising is likely to be able to fund local TV services in many areas of the UK.
Action plan
News Corporation–British Sky Broadcasting merger
On 3 March 2011, the Culture Secretary, Jeremy Hunt, announced that he intended to accept undertakings from News Corp on its proposed merger with BSkyB in lieu of a referral to the Competition Commission, and launched a short consultation on the proposed undertakings, which closed on 21 March 2011. The undertakings that News Corp has offered, which are designed to address the issues of media plurality, would involve Sky News being spun off as an independent public limited company, with the shares in that company being distributed among the existing shareholders of BSkyB in line with their existing (i.e. pre-merger) shareholdings. Once the Secretary of State has considered the responses to the consultation, he will reach a decision on whether he still believes that the undertakings in lieu should still be accepted.
DCMS statement
OFCOM
Promotion in programmes: The X Factor, ITV1, 17 and 24 October 2010
The Code rule prohibiting the promotion of products and services in programmes was breached where two X Factor programmes indicated that details for downloading guest performers’ singles were available on the programme website. This was so even though the references were erroneous: the programme website in fact provided no details on downloading the songs. Whether promotion of products or services in programmes is actual, or whether it is merely apparent, is irrelevant; both actual and apparent promotion of products or services in programmes will breach the Code.
Ofcom’s decision
Promotion in programmes/undue prominence: Electronic Arts branding during Premier League football coverage, Sky Sports 2, 11 September 2010
A logo for Electronic Arts (EA) appeared on 14 occasions when an on-screen graphic was displayed during coverage of a Premier League match between Everton and Manchester United. This amounted to promotion of EA during the programme and also resulted in giving EA undue prominence. The EA branding did not result from any programme sponsorship arrangements entered into between Sky and EA, but rather from contractual arrangements between EA and the Premier League. Sky’s contract with the Premier League provided, however, that Sky would “ensure that on-screen credit is given to…EA…” whenever player or match statistics were displayed, although this was subject to “an express reservation in respect of Sky’s obligations under the Code”. While it is accepted that sports coverage is a genre in which branding and general commercial exposure can be expected (e.g. on players’ kits and through display around a pitch), under the then-current Ofcom Code, the scope for a broadcaster to transmit sports programming in which it had elected to add branding (such as in on-screen graphic elements) was very limited. In this instance, Ofcom considered that the only purpose of EA branding appearing each time that an on-screen graphic was displayed was to promote EA’s name and trade mark, and this was not editorially justified.
Ofcom’s decision
Promotional references and undue prominence: Comedy Circus KE Superstars, Sony Entertainment Television Asia, 20 October 2010
The Code was breached by references within the programme to Vodafone, which was the sponsor of the programme. There is an outright prohibition on promotional references to sponsors within a programme that they are sponsoring, and non-promotional references to sponsors are permitted only where they are editorially justified and incidental. In this programme, the references included Vodafone branding on the set and appearing during on-screen graphics. Ofcom considered that the branding had clearly been placed deliberately, and could not be regarded as incidental. An on-screen caption indicating that a presenter’s jewellery was “Sponsored by Silver Queen” also breached the Code. Ofcom found that there was no editorial justification for it.
Ofcom’s decision
Photosensitive epilepsy: The X Factor, ITV1, 24 October 2010
A pre-recorded performance from Cheryl Cole which included laser lighting effects breached Rule 2.12 of the Code. This requires broadcasters to take precautions to maintain a low level of risk to viewers with photosensitive epilepsy. The broadcast of flashing lights and/or patterns will not breach the Code if it is not reasonably practicable to follow Ofcom’s guidance, there is editorial justification for the broadcasting of flashing lights (for example, in a live news broadcast) and viewers are given adequate verbal and/or text warnings at the start of the programme. In this instance, however, Ofcom’s guidance should have been followed: the item had been pre-recorded, and there was insufficient editorial justification for flashing images that exceeded the appropriate photosensitive epilepsy standards in an entertainment programme. Although pre-transmission warnings were given, these were not sufficient to ensure compliance with the Code.
Ofcom’s decision
Fairness/interview editing: complaint by Mr Meredydd Hughes, ITV News, ITV1, 21 January 2010
It was unfair to the Chief Constable of South Yorkshire Police to use, out of context in a news item, comments that he had made in a recorded interview for two programmes broadcast earlier in the month entitled “The Truth About ASBOs”. It was also unfair for the presenter to comment in a recorded interview with former Prime Minister, Gordon Brown, that Mr Hughes was “shrugging” off the problem of anti-social behaviour, and that he appeared not to understand the seriousness of the problem. Mr Hughes’ views were not adequately reflected in the programme.
Ofcom’s decision
Privacy/doorstepping: complaint by Mrs Ceri Wyn Roberts, Y Byd ar Bedwar, S4C, 23 June 2009
Doorstepping a manager of a care home in North Wales, in circumstances where the manager had answered the producer’s questions in writing and through a face-to-face meeting, infringed the manager’s privacy both in the making and in the broadcast of the programme. Doorstepping is the filming or recording of an interview or attempted interview with someone without prior warning. Ofcom’s Code sets out that doorstepping 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.
Ofcom’s decision
BBC
Offensive language: Top Gear, BBC Two, 30 January 2011
It was unacceptable for the presenters of Top Gear to single out the Mexican Ambassador for irreverent and mocking comments during an episode of Top Gear in which a Mastretta was discussed. This breached the BBC’s Editorial Guidelines. Other comments made about Mexicans in the programme, such as implying that a sports car was no good because it would spend all day asleep (which played off a stereotype), were not offensive: stereotype-based comedy was permitted under the Editorial Guidelines in programmes where the audience had clear expectations of that being the case, as with Top Gear.
BBC Response to complaints
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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