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Broadcast Bulletin Issue number 114 - 21|07|08

Standards Cases

Notice of Sanction

Square 1 Management Limited
Smile TV, 22 May 2007, 22:15

On 10 July 2008 Ofcom published its decision to impose a statutory sanction on Square 1 Management Limited (“Square 1”) in respect of its service Smile TV (now known as Blue Kiss TV) for a serious breach of the Broadcasting Code. Smile TV includes so-called ‘babe’ programming, i.e. live programmes using female presenters (described as ‘babes’) who invite viewers to contact them using premium rate services (“PRS”). The service was found in breach of the following Code Rules:

Ofcom found Square 1 in breach of these rules due to the following conduct:

For the reasons set out in the adjudication Ofcom imposed a financial penalty of £17,500 on Square 1 (payable to HM Paymaster General).

The full adjudication can be found at: http://www.ofcom.org.uk/tv/obb/ocsc_adjud/SmileTV.pdf

In Breach

The Great Global Warming Swindle
Channel 4, 8 March 2007, 21:00

Introduction

On 8 March 2007 Channel 4 broadcast The Great Global Warming Swindle. This programme sought to challenge the theory that human activity is the major cause of climate change and global warming (also described as the theory of anthropogenic global warming). The programme included contributions from a wide range of scientists and other commentators who variously argued that the current consensus on the causes of global warming was based on unsound science and was politically motivated.

The programme was narrated by film maker Martin Durkin. He also wrote and directed the programme. The narration stated:

“In this film it will be shown that the earth’s climate is always changing. That there is nothing unusual about the current temperature and that the scientific evidence does not support the notion that climate is driven by carbon dioxide, man-made or otherwise. Everywhere you are told that man-made climate change is proved beyond doubt. But you are being told lies.”

“…This is a story of how a theory about climate turned into a political ideology…it is the story of the distortion of a whole area of science…it is the story of how a political campaign turned into a bureaucratic bandwagon…”

Elsewhere the programme narration stated:

“Global warming has gone beyond politics, it is a new kind of morality”; “...as the frenzy over man-made global warming grows shriller, many senior scientists say the actual scientific basis for the theory is crumbling”; “It is a distortion of a whole area of science”; “….the global warming alarm is now beyond reason”.

Ofcom received 265 complaints about the programme from members of the public. Ofcom also received a substantial complaint 176 pages long from a group of complainants, some of whom were scientists (“the Group Complaint”). In summary, the complainants were concerned that the programme was not presented with due impartiality and that as a factual programme it misled the audience by misrepresenting “facts”. The Group Complaint also offered a very detailed and critical analysis of the programme.

Factual Accuracy

The complainants questioned the factual accuracy of the programme, suggesting that it:

(a) presented facts in a misleading way; and

(b) omitted facts, issues or alternative views.

Overall, the effect according to the complainants would be that viewers would be discouraged from undertaking action to help prevent climate change.

The complaints set out numerous alleged instances of the way in which facts included in the programme misled viewers. These included the alleged misrepresentation of data, graphs, scientific literature, historical events, press articles, and film footage. Channel 4 in its response defended the programme in respect of all of these issues and Ofcom considered all of the alleged instances of factual inaccuracy in reaching the conclusions contained in this finding. Ofcom is not a fact-finding tribunal and its obligation in this case was to reach a fair and reasonable decision on whether The Great Global Warming Swindle breached the requirements of the Code. Given the ambit of Ofcom’s obligation as regards adjudicating on the complaints, however it was in Ofcom’s opinion impractical and inappropriate for it to examine in detail all of the multifarious alleged examples of factual inaccuracy set out in the complaints.

After careful deliberation, Ofcom therefore chose four particular aspects of the programme to examine as part of its overall assessment of whether the programme materially misled the audience. These were: the use of graphs; the alleged “distortion” of the science of climate modelling; presentation of the argument that the theory of man-made global warming is promoted as a means to limit economic growth; and, not giving an accurate and fair presentation of the expertise and credibility of various contributors. These particular areas were selected because they featured in a large number of the complaints, and in Ofcom’s opinion were reasonably illustrative of the key issues and different types of alleged factual inaccuracy in the programme. Each of these four areas is set out below.

a) The presentation of facts in a misleading way

Complainants stated that the programme contained “falsification or serious misrepresentation of graphs or data”. One graph that was shown in the programme purported to be a representation of changes in world temperature over the past 120 years and the information it contained was attributed to the National Aeronautics and Space Admin istration (“NASA”). Relying on the graph, the programme narration suggested that most of the warming in the twentieth century actually occurred before the post-World War II industrial boom. The Group Complaint stated that the original source of the graph is unclear so it was incorrect for the programme makers to attribute it to NASA. It also suggested that the graph presented in the programme was misleading because the original graph that the figures were based on actually ended in the mid-1980s. The Group Complaint asserted that the producers of the programme had re-labelled and extended the time scale on the graph to give the incorrect impression that the data on the graph in fact extended to the present day (i.e. 2005). As a result the Group Complaint said that the graph in the programme did not reflect a 20 year period (ie mid-1980s to 2005) which the Group Complaint argued was a period of unprecedented global warming. The Group Complaint said the programme makers had later admitted that the time scale of the graph in the programme was incorrect. The Group Complaint said that a cursory glance at up-to-date temperature records from NASA would have revealed that, contrary to the programme’s claims, most of the warming in the twentieth century occurred after the World War II industrial boom.

Complainants objected to the programme's suggestion that climate models, used to support the theory of anthropogenic global warming, are inaccurate. For example, the programme narration stated "Climate forecasts are not new, but in the past, scientists were more modest about their ability to predict the weather" (emphasis added). This, complainants argued, incorrectly confused 'weather' with 'climate', both of which are subject to different constraints (climatology - the study of climate - involves the analysis of long-term processes, whereas meteorology - the study of weather- is the study of shorter term weather processes and forecasting).

The complainants said that the public is much more familiar with weather forecasts - and their uncertainty - than with climatology. The complainants said that, because the difference between weather and climate may not be well known among the general public, the description of climate models as unreliable could have misled viewers about the ability of scientists to predict climate: because viewers may have understood climate models to be the same as weather forecasts.      

Complainants also said the programme’s narration, coupled with various statements made by interviewees, suggested that some recent climate models were based on certain assumptions. The claim was that the climate models put forward by those who support the theory that global warming is caused by human activity to support their position were composed in a way that exaggerated the actual extent of global warming. This, said the complainants, misrepresented the way climate modelling is undertaken in practice and undermined its credibility.  

Contributors to the programme also presented the view that global warming had been used in recent history by those from the political left as part of an anti-capitalist agenda. According to the complainants, the programme in its narration and by the inclusion of various comments by contributors implied that such views were representative of the opinions of mainstream environmentalists, economists and political scientists. In fact, the complainants argued, these environmentalists, economists and political scientists are mostly not anti-capitalist and, in fact, believe that climate change can be mitigated with current and future energy technologies. Complainants pointed to the following comment made by the former Chancellor of the Exchequer, Nigel Lawson:

“The left have been slightly disoriented by the manifest failure of socialism and indeed, even more so of communism, as it was tired out; and therefore, they still remain as anti-capitalist as they were; but they have to find a new guise for their anti capitalism”.

It was argued that the inclusion of comments such as this and the exclusion of alternative views was designed to imply that environmentalists are predominantly anti-capitalist extremists.

It was argued that the programme’s narration did not make clear the links which, according to the Group Complaint, contributors to the programme had to the fossil fuel industry and associated lobby groups. The Group Complaint therefore argued that viewers were misled into giving much more weight to the interviewees’ statements than they would have given them otherwise.

Related to this argument complainants also said the programme “greatly exaggerated” the credentials of some of the contributors, by implying, either by on-screen captioning or by descriptions by the narrator, that the scientists on the programme were climate experts when almost all of them were not.

b) Omissions from the programme meant it was misleading

There were also complaints that the programme was fundamentally misleading because it failed to represent adequately the views of the scientific community who say that global warming is anthropogenic. Viewers were therefore not given sufficient facts about the issue.

Due Impartiality

In questioning whether the programme was duly impartial about the issue of the primary causes of global warming, the authors of the Group Complaint emphasised that they were not attacking the right to free speech. They stated, however, that they did not believe this “right” allowed what they saw as the “systematic deception” which they believed the programme represented.

In summary, the complaints stated that the programme was not impartial and presented incorrect, misleading or incomplete opinions and facts on the science of global warming. In particular, the Group Complaint stated that:

Ofcom therefore wrote to Channel 4 and asked for its comments on how the programme complied with the Code. In particular it referred to the following rules:

Response

General

Channel 4 said that The Great Global Warming Swindle was clearly identified as an authored polemic of the kind that is characteristic of some of Channel 4’s output. As a public service broadcaster Channel 4 has a statutory obligation to commission distinctive programmes which appeal to the tastes and interests of a culturally diverse society.

The channel said that the programme sought to present the viewpoint of the minority of scientists who do not believe that global warming is caused by the anthropogenic production of carbon dioxide. The programme sought to examine the debate over the cause of global warming, outline possible alternative causes and give a voice to the minority who question the prevailing orthodoxy and its possible motivations.

Factual Accuracy

Channel 4 disputed that the way facts and views in the programme were presented misled the audience. For example, in relation to allegations that the programme could undermine or dissuade people from taking action to help prevent climate change, Channel 4 emphasised that the programme did not in any way advocate that the audience should not protect the environment, nor did it advise people to use energy unwisely or inefficiently. In short, Channel 4 argued that the programme did not advocate complacency or inaction of any kind with regard to climate change, which the programme had not denied was taking place.

Channel 4 addressed each illustrative aspect of the complaints on factual accuracy in turn.

(a) The presentation of facts in a misleading way

Channel 4 said that the programme informed the audience of the existence of credible, alternative but under reported theories and thus challenged the theory that global warming was man-made. It did not discount the mainstream theory which was repeatedly referred to within the programme as the dominant theory in the scientific community.

In relation to the question of whether graphs used in the programme were misleading, Channel 4 made the general point that graphs of past temperature are always based on data sets derived from a variety of complex sources and are open to argument and debate. In relation to the graph purporting to show world temperature over the last 120 years (the graph referred to in the Introduction above), Channel 4 said that the programme used a highly stylised animated effect. D uring the production of the programme graphics, an error on the graph occurred. The effect was that the graphic showed the timescale as 1880-2000, instead of 1880-1990. Channel 4 said this was a genuine error which was immediately corrected for the repeat of the programme on More4 on 12 March 2007 .

Despite this mistake, Channel 4 said that the graph which contained the error did not alter or contradict either of the main points made in the narration with reference to the graph and so was not misleading (i.e. that the rise in temperature in the first half of the twentieth century exceeded the rise in the second half; and that during the period of increasing carbon dioxide emissions known as the Post War Economic Boom, temperature fell).

Channel 4 said that the programme examined the effectiveness of climate modelling as a means of predicting the effects of climate change. In relation to the allegation in the Group Complaint that the programme deliberately confused the concepts of “weather” and “climate”, Channel 4 said this was untrue.

The narration, said Channel 4, clearly separated the two concepts stating that those who have modelled weather are sceptical of those who attempt to model climate. Channel 4 pointed out that, although the complainants disagreed with the points made by the contributors in this section of the programme, they did not allege that the statements were factually inaccurate.

Channel 4 said that this section of the programme consisted of contributors commenting on the shifting politics within the environmental movement of the late 1980s, which at that time was by no means as mainstream as the movement has become today. The contributors in the programme expressed opinions on these matters and they were extremely well placed to do so as they had observed these events first hand.

Channel 4 said t he programme consisted of interviews with leading scientists, experts and commentators in their relevant fields. The manner in which these contributors were portrayed was not misleading. This was because each contributor was clearly captioned on screen and, where appropriate, further information about their credentials was given in the voice-over. Channel 4 said that the allegations that most contributors were “linked to the fossil fuel industry” were incorrect and based largely on misinformed internet-based comments. It said that the contributors were established, reputable and in many cases very distinguished scientists. Their scientific work, said Channel 4, which often flies in the face of the prevailing view of global warming, is properly published in peer reviewed scientific journals.

(b) Omission of views and facts in a way that was misleading

Channel 4 did not accept that views or facts were omitted from the programme in a way that was harmful or offensive as alleged by the complainants. On a purely practical basis any requirement to include every detailed counter argument to each point would have drastically reduced the scope of the programme.

Channel 4 argued that far from misleading its audience by ignoring or not acknowledging that there was, and is, a majority scientific and journalistic consensus in support of man- made global warming, a whole section of the programme was devoted to this fact. The programme explained that this viewpoint had developed into an international and powerful political lobby which has great influence on governmental policy worldwide and on scientific funding.

Channel 4 also pointed out that a number of leading anthropogenic global warming theorists were approached to participate and all refused. Accordingly the programme sought to include the mainstream theories by other means such as in commentary and archive footage. Channel 4 argued that if, in order to avoid misleading viewers, the programme maker is under an obligation to include contributions from individuals or organisations who are highly opposed to the content of the programme, this in effect gives those individuals and organisations a power of veto over the programme being broadcast.

On a general note Channel 4 said that any programme subjected to the degree of concerted hostile scrutiny as The Great Global Warming Swindle would be revealed to contain some inaccuracies. However Channel 4 said its review of the programme undertaken for the purposes of its response to Ofcom found very few inaccuracies. Crucially, said the broadcaster, none of these materially affected the argument of the film in any way.

Due Impartiality

Channel 4 said the programme must be considered within the context of the ubiquitous media coverage of the global warming issue and so, in addressing the question of due impartiality, Channel 4 presented an extensive list of programmes over recent years across all the main channels, including Channel 4, which accepted the view that the principal cause of global warming is man-made emissions of carbon dioxide.

As a result of this coverage, Channel 4 did not consider that it was appropriate to give the mainstream view on climate change equal space in this programme, although it said the mainstream view was represented throughout the programme. This was done by referring to mainstream views in the context of presenting the scientific evidence. A number of references were made to the Intergovernmental Panel on Climate Change (“IPCC”) , to the views of Al Gore (the American politician and leading climate change campaigner), and to human produced carbon dioxide as the commonly-understood cause of much global warming. This amounted to an appropriate range of views within the programme.

Channel 4 said that the programme was one of a cluster of editorially linked programmes on the subject broadcast by the channel in March 2007 which had formed part of the channel’s 2007 Year of the Environment. The broadcaster also pointed out that on-screen presentation announcements as well as advance publicity for the programme (which was considerable) made it clear to the audience what to expect from the programme, in terms of both its controversial content and its polemical approach.

Channel 4 also commented on Part Five of the programme which examined the controversial effects that reducing carbon dioxide emissions would have on developing nations. It suggested that many large environmental groups have urged developing countries to adopt sustainable sources of energy rather than develop conventional fossil fuel based sources. The broadcaster in its response also briefly discussed one specific and controversial policy adopted at international level to help combat climate change clearly based on the theory of anthropogenic global warming. Channel 4 described this policy as a “key element” of the Kyoto treaty - the Clean Development Mechanism (“CDM”) - and said it has adverse effects on development of developing nations. By means of the CDM, Western countries are encouraged to purchase ‘carbon credits’ from developing nations and then ‘offset’ their emissions by investing in sustainable energy projects in those developing countries. This mechanism, according to Channel 4, therefore acts as a “powerful disincentive to investment in conventional power sources”. Channel 4 said that the views on these topics expressed in The Great Global Warming Swindle “are honestly and legitimately held by experts in this field interviewed in the programme.”

Decision

General

The Communications Act 2003 (“the 2003 Act”) requires Ofcom to draft and enforce the Broadcasting Code in light of the right to freedom of expression. This encompasses the broadcasters’ right to transmit and the audience’s right to receive creative material, information and ideas without interference but subject to restrictions proscribed by law and necessary in a democratic society. This right is enshrined in the European Convention on Human Rights.

Viewers expect to be adequately informed about matters in the public interest, including of course minority views and opinions. As the European Court of Human Rights has made clear, subject to certain exceptions the principle of freedom of expression applies not only to:

“…information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. Freedom of expression …is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established”.

Accordingly, the rules in the Code must balance the right to freedom of expression against the need to apply restrictions. These restrictions include such statutory duties as the requirement to apply “generally accepted standards” to the content of television programmes so as to provide adequate protection for members of the public from the inclusion of offensive and harmful material. Similarly, there is the requirement for broadcasters to preserve “due impartiality” on matters relating to political or industrial controversy or matters relating to current public policy.

Ofcom also acknowledges that Channel 4’s statutory remit requires it to provide “…a broad range of high quality and diverse programming which, in particular ….exhibits a distinctive character.”

Ofcom considers it of paramount importance that broadcasters, such as Channel 4, continue to explore controversial subject matter. While such programmes can polarise opinion, they are essential to our understanding of the world around us and are amongst the most important content that broadcasters produce. It is inevitable such programmes will have a high profile and may lead to a large number of complaints.

Nevertheless, material transmitted by UK broadcasters must comply with the Code. Ofcom therefore carefully considered the issues raised by complainants and the Group Complaint as they related to the Code.

Factual Accuracy

The complainants (including the Group Complaint) stated that the programme was not accurate and therefore in breach of the Code. However, whilst Ofcom is required by the 2003 Act to set standards to ensure that news programmes are reported with “due accuracy” there is no such requirement for other types of programming, including factual programmes of this type.

It remains the case, however, that broadcasters must comply with standards set by Ofcom to provide adequate protection for members of the public from the inclusion of offensive and harmful material . In drafting section 2 of the Code (which contains the rules relating to this objective), Ofcom set a requirement that factual programmes should not materially mislead. Accordingly, Rule 2.2 states that:

“Factual programmes or items or portrayals of factual matters must not materially mislead the audience”.

The accompanying Ofcom guidance to the Code explains that “Ofcom is required to guard against harmful or offensive material, and it is possible that actual or potential harm and/or offence may be the result of misleading material in relation to the representation of factual issues. This rule is therefore designed to deal with content which materially misleads the audience so as to cause harm or offence.” (Emphasis in original). Ofcom therefore only regulates misleading material where that material is likely to cause harm or offence. As a consequence, the requirement that content must not materially mislead the audience is necessarily a high test.

In dealing with these complaints therefore Ofcom had to ascertain – not whether the programme was accurate - but whether it materially misled the audience with the result that harm and/or offence was likely to be caused. It is not within Ofcom’s remit or ability in this case as the regulator of the ‘communications industry’ to establish or seek t o adjudicate on ‘facts’ such as whether global warming is a man-made phenomenon, nor is Ofcom able to reach conclusions about the validity of any particular scientific theories. In dealing with an issue such as the theory of anthropogenic global warming, which is the subject of scientific controversy, those involved in the debate will - by definition - disagree over the factual accuracy of each others’ claims. Therefore, it is to some extent inevitable that in a polemical programme such as The Great Global Warming both sides of the argument will violently disagree about the ‘facts’.

Ofcom’s role, as regards factual accuracy, is to decide whether this programme breached the requirements of Rule 2.2 of the Code. To do this, it must reach an opinion on the “portrayals of factual matters” in a programme in order to determine whether the audience was materially misled by them overall – bearing in mind that Ofcom’s remit to review the factual matters in a programme can be based only on an appropriate and proportionate review of the evidence for this purpose. To help fulfil this aim, Ofcom looked at four illustrative areas of complaint about the portrayal of factual matters in this programme and examined them in light of Rule 2.2 of the Code.

(a) Presented facts in a misleading way

In deciding whether facts were presented in a materially misleading way Ofcom considered the context in which the programme was broadcast. As the Code explains, context includes factors such as the editorial content of the programme and the extent to which the nature of the content can be brought to the attention of the potential audience.

The anthropogenic global warming theory is extremely well represented in the mainstream media. A large number of television programmes, news reports, press articles and, indeed, feature length films have adopted the premise that global warming is caused by man-made carbon dioxide. In light of this it is reasonable for the programme makers to assume that the likely audience would have a basic understanding of the mainstream man-made global warming theory, and would be able to assess the arguments presented in the programme in order to form their own opinion.

Ofcom also noted that the programme was clearly trailed and its authorship was clearly identified, so that there was a certain audience expectation as to its controversial content.

At no point did the programme state that the theories it contained were the mainstream or majority view. For example, the very beginning of the programme narration expressly recognised that anthropogenic global warming theory is the generally accepted orthodoxy:

"Man-made global warming is no longer just a theory about climate it is the defining moral and political cause of our age. Campaigners say the time for debate is over, any criticism no matter how scientifically rigorous is illegitimate ...even worse dangerous.”

In summary, in relation to the manner in which facts in the programme were presented, Ofcom is of the view that the audience of this programme was not materially misled in a manner that would have led to actual or potential harm. The audience would have been in no doubt that the programme's focus was on scientific and other arguments which challenged the orthodox theory of man-made global warming. Regardless of whether viewers were in fact persuaded by the arguments contained in the programme, Ofcom does not believe that they could have been materially misled as to the existence and substance of these alternative theories and opinions, or misled as to the weight which is given to these opinions in the scientific community.

Ofcom noted that the programme did not at any time deny that global temperatures are rising; rather, it was concerned with questioning the causes of this phenomenon. Also at no point did the programme advocate that the audience should not protect the environment. For example, it did not advise people to use energy unwisely or inefficiently. As a result Ofcom considered it highly unlikely that the programme could have caused actual harm. As to potential harm some complainants had considered that the programme’s questioning of the theory of man-made global warming would create doubt and confusion in viewers’ minds about the need to take action against global warming. Ofcom considers that, although the programme may have caused viewers to challenge the consensus view that human activity is the main cause of global warming, there is no evidence that the programme in itself did, or would, cause appreciable potential harm to members of the public.

In respect of the illustrative examples from the complaints about misleading facts:

In relation to the graph representing changes of world temperature over the last 120 years, Ofcom noted Channel 4’s admission of an error in the graphic which appeared in the original broadcast. This was rectified for the repeat broadcast on More4. The attribution of the graph to NASA was also removed, although Channel 4 stated that this credit was correct.

Ofcom understands that the purpose of the various graphs in the programme was primarily to provide a visual illustration of the commentary/interviews they accompanied in order to develop the thesis of the programme. Whilst Channel 4 itself has acknowledged that the graph was not completely accurate, looking at it in the context of the programme as a whole (as discussed above) Ofcom did not consider the inaccuracy to be of such significance as to have been materially misleading so as to cause harm and offence in breach of Rule 2.2.

Ofcom also noted that Channel 4 admitted to other data errors in the content of the programme. For example the figure given for the amount of carbon dioxide produced by volcanoes was not accurate and was corrected in the repeat of the programme. As with the errors in the graphs, Ofcom did not consider any of these other inaccuracies were of such significance as to be capable of materially misleading the audience so as to cause harm and offence in breach of Rule 2.2.

This sequence assessed the reliability of climate models as a method of measuring the effects of climate change. Ofcom noted that, although the complainants disagreed with the points made by the contributors in the programme, they did not suggest that the overall statements about climate models were factually inaccurate. Ofcom notes that the creation of such models necessarily involved assumptions. The disagreement among scientists about the nature of those assumptions (as described by the contributors to the programme) is not an issue on which Ofcom can adjudicate. Overall however Ofcom’s view was that the passages complained of were not materially misleading so as to cause harm and offence. Once again, in determining whether the material was materially misleading, the context of the programme was important.

Complainants objected that both the programme’s narration and the comments of some of those interviewed in the programme implied that global warming had been used by those from the political left as part of an anti-capitalist agenda. The programme as a result, argued the complainants, also implied that such views were representative of the opinions of mainstream environmentalists, economists and political scientists.

Ofcom does not believe that the presentation of this section of the programme or the omission of the views of certain environmentalists was misleading to the viewer. This sequence of the programme consisted of a brief historical examination of the environmental movement in the late 1980s before it had become mainstream. These were clearly views of a small set of people who took a particular position on the political motives of these campaigners. In line with the right to freedom of expression, Ofcom considers that the broadcaster has the right to transmit such views and the audience would understand the context in which such comments were made. The content was therefore not misleading.

The right to freedom of expression and the principle of editorial freedom are crucial to broadcasters. The programme used contributors who offered controversial opinions on the issues raised. The decisions by the programme makers not to include all the qualifications of contributors, and not to include more background on them (some of which is strongly disputed), were editorial decisions which overall did not in Ofcom’s view result in the audience being materially misled.

The Group Complaint contained a number of allegations about links between contributors to the programme and fossil fuel industries. Many of the individual complaints also raised this concern. The Group Complaint in particular said that many of the contributors had links with lobby groups actively engaged in persuading governments against any action to reduce carbon dioxide emissions. It cited numerous sources, including many web-based authorities, to support these allegations. In response Channel 4 provided detailed rebuttals to support the credibility of the interviewees in the programme against whom these allegations were levelled. Ofcom is unable to assess or adjudicate on the relative merits of these strongly disputed allegations.

In relation to programmes which are subject to the due impartiality rules there is a specific requirement, contained in Rule 5.8 of the Code, that the personal interests of “a presenter or reporter” which would call into question the due impartiality of the programme, must be disclosed to the audience. Ofcom notes however that there is no similar requirement in relation to factual programmes or portrayals of factual matters in general.

Taking all the circumstances into account (including that the requirements of due impartiality did not apply for the vast majority of this programme –on which see further below - interviewees were clearly captioned, the broadcaster’s right to freedom of expression and that the programme was clearly polemical in nature), in Ofcom’s view these alleged and strongly disputed links did not need to be disclosed to viewers to avoid the programme being misleading.

Ofcom nevertheless noted aspects of the presentation (and omission – see further below) of facts in this programme which caused some concern: f or example, although not in context materially misleading overall, the errors admitted by Channel 4 concerning the presentation of the graph and other data (see above) . Further, within The Great Global Warming Swindle, and particularly in the initial stages of the commentary, comments were made in the narration such as:

“Everywhere, you are told, that man-made climate change is proved beyond doubt….but you are being told lies”;

“it is the story of the distortion of a whole area of science”; and

“it is a story about westerners, invoking the threat of climatic disaster, to hinder vital industrial progress in the developing world”

Although this programme was intentionally designed as a polemic, these comments were so sweeping and intemperate that they risked to some degree undermining the fact that overall the programme very aggressively challenged the mainstream scientific consensus on man’s contribution to global warming, without concluding that the mainstream scientific theory was completely without merit.

(b) Omission of views and facts in a way that materially misled so as to be harmful or offensive

It is possible for a programme to mislead its audience by omission. A programme can present views and facts in such a way that by omitting crucial information or evidence, the viewer is misled.

The choice of what material to include in a programme is an editorial decision for the broadcaster and is not one on which Ofcom can or should intervene unless there has been a breach of the Code. Unlike the rules on due impartiality there is no requirement under Rule 2.2 for the broadcaster to ensure that a wide range of significant views is included.

The extent to which a programme may omit views and not mislead will depend on the particular programme. In this case, it was clear to viewers that this programme was a polemic and that it would take a certain ‘angle’. In such a context, where the programme does not claim to be a balanced analysis of the issues, the audience would expect this sort of approach.

Ofcom considers t here is a difference between presenting an opinion which attacks an established, mainstream and well understood view, such as in this programme, and criticising a view which is much more widely disputed and contentious. In the former case, programme makers are not always required to ensure the detailed reflection of the mainstream view (since it will already be known and generally accepted by the majority of viewers). In the context of this particular programme, given the number of scientific theories and politico-economic arguments dealt with in The Great Global Warming Swindle, it was not materially misleading overall to have omitted certain opposing views or represented them only in commentary. The use by the programme makers of commentary, interviews and archive footage in an attempt to demonstrate the mainstream view on balance, in Ofcom’s opinion, fulfilled this requirement.

In summary, Ofcom considered most viewers would have been aware that the views expressed in the programme went against the scientific consensus about the causes of global warming and were only espoused by a small minority – not least because of the overwhelming amount of material broadcast in recent years based on the consensus view that human production of carbon dioxide is a major cause of global warming.

However, in assessing whether or not the programme materially misled the audience and therefore whether Rule 2.2 was complied with, the broadcaster should also take note of Ofcom’s adjudication on fairness to those individuals/organisations who participated or were affected by the programme.  While the consideration of standards issues and of fairness complaints is completely separate, there may be circumstances when unfairness to an individual or organisation (e.g. a failure to give someone an opportunity to respond) may result in relevant material not being included in the programme and that in itself may give rise to issues under standards (for instance, under misleading the audience as a whole or due impartiality). However on balance, Ofcom considers there is no such read-across here, given the context and nature of the programme (i.e. a polemic clearly going against the prevailing scientific view on global warming). In this case, while unfairness to participants has been found (failures to give an adequate opportunity to respond and the unfair presentation of views), Ofcom does not consider that, overall, these failures led to material being transmitted which was so misleading that harm would have been caused to viewers. 

Broadcasters should note that there are circumstances where the omission of certain information from a programme (particularly in cases where the programme could encourage the audience to change its behaviour) could lead to a breach of Rule 2.2

As already pointed out Ofcom did have some concerns about aspects of this programme as regards the portrayal of factual matters and omission of facts or views. In areas of controversy such as this, broadcasters should exercise an appropriate degree of caution. This would particularly be the case when scientific (including medical) issues, with which many viewers will be unfamiliar with the scientific detail, are dealt with and if there is a material risk of a programme causing viewers to change their behaviour in a manner which is adverse to themselves or society in general. In these circumstances, broadcasters should be wary of presenting a theory or views as fact, or of not providing viewers with sufficient information so that claims are placed in context.

In conclusion Ofcom considers that it is important, in line with freedom of expression, that broadcasters are able to challenge current orthodoxy. It is self-evident that there will be strong disagreements over the ‘facts’ on an issue such as the causes of global warming - where some scientists disagree. Some may wish to challenge the evidence and the conclusions drawn from it. Channel 4, however, had the right to show this programme provided it remained within the Code and – despite certain reservations – Ofcom has determined that it did not breach Rule 2.2. On balance it did not materially mislead the audience so as to cause harm or offence.

Due Impartiality

Section Five of the Code states that due impartiality must be preserved by the broadcaster on “matters of political or industrial controversy and matters relating to current public policy.” The Code explains that these are “ political or industrial issues on which politicians, industry and/or the media are in debate. Matters relating to current public policy need not be the subject of debate but relate to a policy under discussion or already decided by a local, regional or national government .”

Ofcom had first to establish whether The Great Global Warming Swindle contained subject matter requiring the application of the due impartiality rules. Ofcom recognises that Section Five of the Code acts to limit, to some extent, freedom of expression. This is because its application necessarily requires broadcasters to ensure that neither side of a debate relating to matters of political or industrial controversy and matters relating to current public policy is unduly favoured. Broadcasters are therefore required to represent alternative viewpoints in an appropriate way.

The 2003 Act and therefore the Code require that news programmes are presented with due impartiality and due accuracy (Rule 5.1 of the Code). There is also a requirement that due impartiality is preserved in other types of programmes when they deal with matters (or major matters) of political or industrial controversy or a matter (or major matters) relating to current public policy. Therefore, in non-news programmes, Ofcom must consider, on a case by case basis, whether a programme is dealing with these matters. When making such a judgement, Ofcom takes into account all the circumstances and the context of the programme.

Ofcom concluded that for most of its 90 minute duration the requirements of due impartiality did not apply to The Great Global Warming Swindle. This is because for the first four of its five parts the programme did not deal with a matter of political or industrial controversy or matter relating to current public policy. However, in Part Five of the programme Ofcom noted that the discussion moved away from the scientific debate about the causes of global warming, to consider the policies alleged to result from the mainstream scientific theory being adopted by UN and Western governments and their consequences (see below). It is Ofcom’s view that Section Five of the Code did apply to this final part of the programme.

Parts One to Four of the programme

Ofcom considered that the first four parts of The Great Global Warming Swindle dealt overwhelmingly with the controversy around the scientific theory of anthropogenic global warming and questioned whether human activity is the major cause of climate change. The documentary presented published scientific theories together with the views of scientists and other commentators whose views and opinions differed from the prevailing consensus (over which there could be no doubt from viewing the programme) that man-made carbon dioxide causes global warming. Whilst of course this approach was controversial, the aim and intended focus of the programme up to Part Five were not to question or discuss any political or industrial issue related to global warming, or any matter relating to current public policy. In other words, the programme did not seek to examine in any detail the merits of any particular current government policies or political initiatives aimed at combating climate change nor did it express any opinion on such policies or initiatives.

In assessing these first four parts of the programme, Ofcom also had regard to the fact that, both domestically and on a worldwide level, the political debate had largely moved on from questioning the causes of climate change to attempting to find solutions to deal with it. Therefore, in the political arena at least, there was a very broad consensus of opinion which accepted the scientific theory of man-made global warming. In this respect it could be said that the discussion about the causes of global warming was to a very great extent settled by the date of broadcast ( 8 March 2007 ).

It should be noted from this that there comes a time when an issue that was once a matter of controversy becomes broadly settled, and an overwhelming consensus is formed both – domestically and internationally. For example, while the link between HIV and AIDS was once questioned and could have been considered a matter of political controversy or relating to current public policy, the link is now generally accepted and in most circles is no longer a matter of debate that could be regarded as a matter of political or industrial controversy. In Ofcom’s view the link between human activity and global warming also became similarly settled before March 2007. We are confirmed in this view by noting for example a conclusion of the Stern Review, commissioned by the UK government, which was published in October 2006 and stated:

“An overwhelming body of scientific evidence now clearly indicates that climate change is a serious and urgent issue.The Earth’s climate is rapidly changing, mainly as a result of increases in greenhouse gases caused by human activities.” (Our emphasis)

As a result of this review the then Environment Secretary said the Queen's Speech would feature a climate bill to establish an independent Carbon Committee to "work with government to reduce emissions over time and across the economy.”

This view of human activity as the major cause of global warming does not appear to be challenged by any of the established political parties or other significant domestic or international institutions.

Therefore, in this case, Ofcom considers that the subject matter of Parts One to Four of the programme (i.e. the scientific theory of man-made global warming) was not a matter political or industrial controversy or a matter relating to current public policy. Having reached this view, it follows that the rules relating to the preservation of due impartiality did not apply to these parts. It is important to note that by simple virtue of the fact that one small group of people may disagree with a strongly prevailing consensus on an issue does not automatically make that issue a matter of controversy as defined in legislation and the Code and therefore a matter requiring due impartiality to be preserved.

Part Five of the programme

Whilst, as discussed above, the majority of the programme concerned the scientific debate around whether global warming was anthropogenic, Ofcom noted that the final part moved the thesis on and outside these boundaries. This part of the programme discussed the consequences of assuming that global warming was man-made and specifically the controversial policies followed by the UN and Western governments in the developing world and, in particular, Africa. Amongst these policies, although not explicitly referred to in the programme, is the Clean Development Mechanism referred to by Channel 4 in its response to Ofcom (see above). The programme looked at why developing countries should be required to limit industrial development and the use of fossil fuels. The programme was critical of this approach. For instance the programme narration stated:

“Western governments have now embracedthe need for international agreements to restrain industrial production in the developed and developing world. But at what cost?”

This voiceover is followed immediately with an interview with the former environmental campaigner, Paul Driessen, who says:

“My big concern is that the policies being pushed to supposedly prevent global warming are having a disastrous effect on the world’s poorest people.”

In Part Five the programme explored the effects in developing countries of Western government policies which seek to restrain industrial development to reduce the production of carbon dioxide. One consequence, according to the programme, is a lack of electricity in many parts of the developing world which adversely affects people’s living conditions and their health. These policies, the programme claimed, result in respiratory diseases and death.

These issues are matters of major political controversy and are major matters relating to current public policy as defined by the Code. During this section no alternative views on this issue were presented.

The Code states that “matters of major political…controversy and major matters relating to current public policy…vary according to events but are generally matters …which are of national, and often international, importance…” In Ofcom’s view there is clearly a debate about whether, and the extent to which, developing countries should be required to limit their emissions of carbon dioxide as a result of concerns about global warming. Governments around the world have been preparing for the second phase of the Kyoto Protocol on greenhouse gases after 2012. Some developing countries such as China and India are industrialising rapidly. Some Western governments wish these countries to agree to some form of capping of their carbon dioxide emissions and so would encourage these countries to make more use of sustainable energy sources. A number of developing nations however are refusing to limit their emissions, arguing that since richer countries are responsible for most emissions today it is proper that they should be the ones to cut their emissions most.

Rule 5.12 requires that where a major matter of current public policy of international importance like this is being considered in a programme “an appropriately wide range of significant views must be included and given due weight in each programme or in clearly linked and timely programmes.” In this part of the programme, and on this specific issue, no such wide range of views was included. Ofcom also found that the programmes referred to by Channel 4 in the cluster of programmes editorially linked to The Great Global Warming Swindle were not sufficiently timely or linked to satisfy the requirements of Rule 5.12. Nor could the requirements of due impartiality be satisfied by the general and wide ranging media output about anthropogenic global warming over recent years (including print media output) that was referred to by Channel 4 in its response.

Part Five of the programme therefore breached Rules 5.11 and 5.12.

Not in breach of Rule 2.2

Breach of Rules 5.11 and 5.12 (in respect of Part Five of the programme)

Footnotes:

Ofcom also received three complaints from those who either participated in the programme or who were the ‘person affected’ as defined in s111 of the Broadcasting Act 1996(as amended). These were considered under Ofcom’s Fairness and Privacy function. The decisions reached on those complaints appear elsewhere in this Broadcast Bulletin – see pages 36 to 80, below.

Programmes referred to included, on Channel 4: Channel 4 Year of the Environment, 2007; A World Without Water; and The Year the Earth Went Wild. On ITV, Climate Change – Make A Difference and on Discovery Channel Global Warming: What You Need to Know.

The IPCC is the UN body tasked to evaluate the risk of climate change caused by human activity. The IPCC was one of the bodies that complained to Ofcom under the Fairness rules of the Code about its treatment in the programme (see Footnote 1).

a protocol to the international Framework Convention on Climate Change with the objective of reducing greenhouse gases that cause climate change.

Vogt v Germany (1995) 21 EHRR 205, p52

Communications Act 2003, section 319(2)(f)

Communications Act 2003, section 320

Communications Act 2003, section 265

Section 319(2) of the Act requires Ofcom to set standards in a code for the content of programmes to secure certain standards objectives. One of those objectives is to ensure that generally accepted standards are applied to programmes to ensure adequate protection for members of the public from harmful or offensive material

American Idol
ITV2, various dates, March 2008 to May 2008

Introduction

American Idol is a voting-based talent show. The seventh series aired this year. The series is first shown in the US and subsequently broadcast in the UK on ITV2.

On viewing the UK broadcast, Ofcom noted that the final rounds of the show (where the contestants performed to a studio audience and viewers cast their votes) included music videos featuring Ford cars.

Under the Code, products and services must not be promoted in programmes (Rule 10.3) or given undue prominence (Rule 10.4), and product placement is prohibited (Rule 10.5).

The Code states that arrangements covering the inclusion of products and services in a programme acquired from outside the UK are not considered to be product placement, provided that no broadcaster regulated by Ofcom and involved in the broadcast of that programme directly benefits from the arrangement.

Response

ITV confirmed that the music videos were originally sponsored in the US by Ford. However, the UK broadcast was not sponsored by Ford and ITV did not benefit directly from any arrangements in the US regarding the inclusion of the music videos.

ITV said that the music videos were included purely on their editorial merits in terms of their entertainment value to viewers, and not as a result of any relationship between the broadcaster and Ford. It said that each video had a different song and different theme or storyline featuring the contestants, and that their editorial content was focussed primarily on the performance of the contestants.

Whilst Ford vehicles did feature in each music video, ITV said it considered each video on its merits and had edited the material to avoid the cars and any Ford branding or references being unduly prominent, for example by replacing superimposed Ford logos with American Idol logos, by blurring prominent branding on the cars themselves, and by removing “intros and outros that refer to Ford in a promotional manner”. ITV said that car model names were occasionally visible but only very briefly. Very occasionally ITV took the view that the manner of presentation of the cars was unsuitable and omitted the entire video.

ITV argued that it believed that the videos had genuine editorial value for the viewer and that it had edited the material to make it compliant under the Code, although it accepted that they were “sometimes on the borders of acceptability”.

Decision

One of the fundamental principles of European broadcasting regulation is that advertising and programming (that is, editorial content) must be kept separate. This is set out in Article 10 of the Television Without Frontiers Directive which is in turn reflected in the rules in Section Ten (Commercial References in Programmes) of the Code.

Product placement in the UK is currently prohibited by European legislation. However, American Idol is acquired programming from the US where such arrangements are permitted. We noted ITV’s assurances that, in accordance with the Code, it did not directly benefit from the inclusion of the music videos in the UK broadcast of American Idol and concluded that it was not in breach of Rule 10.5 of the Code.

Nevertheless, acquired programmes must comply with Rule 10.4, which prohibits unduly prominent references to products or services.

Of the ten final editions of American Idol (each containing a different music video), the majority prominently featured either the Ford brand or Ford vehicles. There were prolonged or close-up shots of Ford vehicles – including shots of the car interior - similar to those often included in advertisements; on occasion (and as noted by ITV), model names (such as the Ford Focus and Ford Fusion) were also clearly visible. The cars tended to be a key component of the videos. For example, one video had a matador theme with a Ford Mustang car (clearly identifiable from its logo, shown in close-up) playing the part of the bull. We considered that the involvement of the contestants in the videos was insufficient editorial justification for these very prominent visual references to Ford. On another occasion, we noted that, after the music video, the programme presenter referred twice to “the Ford music videos”; this reinforced the impression that the video was intended to promote Ford.

We recognise that ITV made efforts to edit the music videos. However, the videos were funded in the US by Ford, almost certainly with the intention – at least in part – of promoting Ford. Its vehicles were therefore intrinsic to the videos.

We therefore found the references to Ford to be unduly prominent in breach of Rule 10.4.

Breach of Rule 10.4

Red Hot TV Trailer
Red Hot TV, 13 February 2008, 20.00 – 22.00

Introduction

Red Hot TV is a subscription-based, i.e. encrypted, adult service. In common with most such services it is promoted with free-to-air trailers broadcast on a loop from 20.00 onwards.

Throughout a trailer, broadcast between 20.00 and 22.00, verbal and on-screen text references were made to the broadcaster’s websites www.redhottv.com and www.televisionx.com. From 20.00 verbal references to the websites were made primarily to encourage subscriptions to the broadcast service. However, the accompanying on-screen text reference to the websites remained on-screen for the majority of the trailer. Further, after 21.40 the trailer included several additional verbal references specifically promoting the “uncut” and “uncensored” content on the websites, in particular for Red Hot WebTV.

Ofcom received a complaint that the websites featured sexually explicit, “hardcore pornography" which could be readily viewed without registration to the websites.

Although this material was not broadcast on-air, Ofcom was concerned that it appeared on a website being promoted on the Red Hot TV trailer pre-watershed from 20.00. Ofcom therefore requested comments from RHF Productions Limited (“RHF”), which owns and is responsible for compliance at Red Hot TV, with reference to the following rules of the Code:

Response

RHF argued that it ensured there were appropriate safeguards in place to ensure that no persons under the age of 18 should access the website content. These measures included prominent warnings on the front page of the website warning of the adult and sexually explicit material included and warning that any person wishing to access the website must be over the age of eighteen.

In addition, the broadcaster stated there were industry standard labels on the front page of the website enabling parents to use software to restrict access to the site by minors. The broadcaster also stated that before customers could access the “stronger versions” of the website material they were required to complete a registration and verification process in which customers had to declare their age, which was cross-referenced to a verified credit card number.

Furthermore the broadcaster argued that if anyone under the age of 18 had unrestricted access to the internet, such that they could access the front page of the Red Hot TV website, then such persons would have access to an unlimited array of adult-oriented material available from other websites not owned or controlled by RHF and therefore not protected by the type of measures detailed previously.

They concluded that the promotion of the website on the free to air trailer did not at all increase the likelihood of under-eighteens being able to access inappropriate content.

Decision

Red Hot TV promotes its websites within its licensed TV service as a means for viewers to subscribe to the service and to access previously broadcast programming and unedited versions of these programmes. Ofcom’s concern in this case was whether the content of these websites was suitable for promotion pre-watershed and whether the more explicit imagery was suitable at all to be promoted, even indirectly, on a licensed television service.

In this context the Code Rules 1.2, 1.3, 2.1 and 2.3 are relevant. While the content of the websites is not in itself broadcast material, and therefore not subject to the requirements of the Code, any on-air references to the websites are clearly broadcast content. Such references must therefore comply with the Code.

However, when accessed – merely by clicking “enter” on the site’s front page – the two websites contained extremely explicit material (equivalent to BBFC ‘R18’-rated content). This did not require registration to view and could be seen by under-eighteens. Registration and credit card verification was only required if the user wished to download the material in full. The promotion on television of this website was therefore of serious concern to Ofcom.

Ofcom concluded that the inclusion of promotional references to a website containing highly explicit ‘adult’ material on a service regulated by Ofcom was a breach of the Code, in particular Rules 1.2, 1.3, 2.1 and 2.3.

Ofcom wishes to emphasise that it does not regulate the content of websites such as www.redhottv.com but that it does regulate on-air references to where such content may be found. It is therefore able to require a broadcaster to remove such a reference.

Further, and mindful that the trailer for Red Hot TV – and other ‘adult’ services’ trailers – is only available in the ‘adult’ section of the electronic programme guide (“EPG”), it is Ofcom’s view that references to a website for genuine subscription purposes, and not for the promotion of any other website content, may be an acceptable way to publicise a service that Ofcom requires to be encrypted. But where websites are used to enable subscription, the viewer should be taken directly to the relevant page(s) (otherwise Ofcom’s rules on the undue promotion of goods and services may be infringed) and the websites must not contain unprotected R18-standard material.

Therefore it is Ofcom’s view that any ‘adult’ websites promoted on an Ofcom licensed service, even those that take the viewer to a subscription-only page, should not be broadcast until after 21.00 post-watershed. In no circumstances may such websites contain unprotected R18 material if they are promoted on a licensed service. Appropriate protection will be, for example, the need to purchase access to the stronger material by using a credit card or similar means that allows an age check to be done.

Breach of Rules 1.2, 1.3, 2.1 and 2.3

SportxxxGirls
SportxxxGirls, 10 February 2008, 22:00

Introduction

SportxxxGirls is a channel situated in the ‘adult’ section of the Sky Electronic Programme Guide. On 10 February 2008 at 22:00 the channel broadcast, under encryption, material featuring two female presenters performing explicit sexual acts. The presenters invited viewers to contact them for ‘adult chat’ via a premium rate text service. A viewer objected that this content broadcast as ‘live’ on 10 February 2008 was in fact a repeat of material originally shown on 3 February 2008 and was therefore a “blatant rip-off”.

Ofcom sought the broadcaster’s comments under Rule 2.2 of the Code. This rule requires that portrayals of factual matters must not materially mislead the audience.

Response

The broadcaster supplied recordings of the material broadcast on 3 and 10 February 2008 but did not comment on the complaint.

Decision

Ofcom viewed the recordings supplied and noted that the material shown on the 10 February 2008 was a repeat of that shown on 3 February 2008 . The material differed only in that a text bar, containing details of how to text the presenters and the accompanying terms and conditions, was removed from the 10 February broadcast. However, a label stating that the programme was ‘live’ remained on screen throughout the broadcast. The presenters repeatedly invited viewers to text them and verbally referred to the text number. This number could also be seen intermittently on a blackboard in the studio.

The on-screen graphic and the presenters’ verbal invitations to contact them clearly suggested to viewers that they were watching the presenters in real time and that there was the opportunity for live interaction. This was not the case. The broadcast was therefore likely to materially mislead viewers who responded to the presenters’ invitations. The broadcast was in breach of Rule 2.2 of the Code.

Ofcom has recently sanctioned a number of broadcasters for misleading viewers in programmes that have involved the use of premium rate services (“PRS”). Broadcasters should be in no doubt about Ofcom’s concerns regarding the inappropriate use of PRS in programmes. In this case it was unacceptable for the broadcaster to mislead viewers into believing that they could genuinely interact with the programme when they could not.

We are extremely concerned that the broadcaster in this case failed to take adequate steps to remove fully the PRS number from a repeat of a programme that was originally broadcast live. Any further breaches of this nature by this licensee may result in the consideration of further regulatory action.

Breach of Rule 2.2

Resolved

ITV News
ITV1, 18 December 2007, 18:30

Introduction

Ofcom received one complaint from a viewer who has daughters with epilepsy. She was concerned that the item featuring a Nick Clegg news conference contained flashing images from press photography. Certain types of flashing images present a danger of triggering seizures in viewers who are susceptible to photosensitive epilepsy (“PSE”). Rule 2.13 in the Code states that television broadcasters must take precautions to maintain a low level of risk to viewers who have PSE. Ofcom therefore asked ITV for its comments about how this broadcast on ITV News complied with Rule 2.13.

Response

The broadcaster said that ITV and ITN (who produces ITV News) take very seriously matters relating to flashing images.

The programme-makers undertook a technical review of the news report after being contacted by Ofcom.  ITV thought that the footage did not register levels that would ordinarily cause concern.  

ITV did accept, however, that very careful judgement is important in assessing editorial justification and deciding whether to issue a warning to viewers. It believed that it is preferable to err on the side of caution and, with hindsight, on this occasion it concluded that a warning may have been appropriate and preferable.  

Consequently, and in the light of this complaint, ITV circulated a written reminder on the issue of flashing lights and/or patterns within ITN on 14 February 2008 . This made the editorial teams aware of the complaint and reminded them of section 2.13 of the Code and the technical guidance which sits behind it.

Decision

Ofcom's analysis of the material broadcast concluded that the Nick Clegg press conference, despite ITV’s measurements, did contain several sequences in which the rate and intensity of the flashing caused by photographers' flash-bulbs did not comply with the criteria in our Guidance which accompanies Rule 2.13. We also noted that no warning was provided before the item was broadcast.

While Ofcom recognises the operational challenges of ensuring compliance with Rule 2.13 during live news programmes (which often also contain 'near-live' report packages), this does not obviate the need for broadcasters to deal with potentially problematic material in an appropriate manner. We do however note ITV's acknowledgement that a warning would have been appropriate in this case, and we welcome the fact that ITV have reminded ITN editorial staff of the need to ensure compliance with Ofcom's Guidance. On this basis, we consider the matter resolved.

Resolved

Not in Breach

Trailers for Extraordinary People: The Man With No Face
Five and Five Life, 25 and 26 March 2008, 19:00; 20:45 and 20:48; and

Trailers for Extraordinary People: Half Man Half Tree
Five and Five Life, 8 to 14 April 2008 at various times before 21:00

Introduction

Five broadcast a number of trailers for its documentary series Extraordinary People which looked at the experiences of people with a range of unusual medical conditions which have resulted, in some cases, in severe physical disfigurement.

Two versions of a trailer for the programme The Man With No Face were broadcast . This was about Mr Jose Mestre, a Portuguese man who has haemangioma (a condition caused by abnormalities in blood capillaries and veins). His condition has resulted in the growth of a large tumour that covered most of his face. The shorter version of the two trailers included images of Mr Mestre sitting in a shop doorway and the reactions of on-lookers to his disfigurement, which was clearly shown. The longer version of the trailer also included a series of old photographs of Mr Mestre as the tumour, which started as a growth on his lip, developed to eventually cover most of his face.

Two versions of a trailer for the programme Half Man Half Tree were also broadcast. The programme was about Dede, an Indonesian man who has a rare and unusual skin condition that causes root-like structures to grow from his hands and feet and welts that cover his whole body. Both versions of the trailer included images of Dede in his village with close up footage of the growths on his face, arms and hands. The longer version of the trailer also included images of Dede with his family and of him laughing with his daughters.

A total of eleven viewers complained to Ofcom that the images of Mr Mestre and Dede in the trailers might distress children and so were inappropriate for the time of broadcast. Ofcom asked Five for its comments in relation to Rule 1.3 (children must be protected by appropriate scheduling).

Response

Five stated that the trailers were carefully constructed to explain both Mr Mestre’s and Dede’s condition in a sensitive way and were not gratuitous, shocking, or sensationalist. Five stated that the programmes themselves were about challenging pre-conceptions and fears about disfigured people, which the trailers illustrated.

In relation to the longer version of the trailer for The Man With No Face, the broadcaster stated that it used photographs taken at various stages in Mr Mestre’s life to explain the development of the tumour, in order to contextualise the images of him as he is today, and to chart the tumour’s development. The shorter trailer captured one of the programme’s central themes, namely Mr Mestre’s feelings and experiences of being seen in public and being able to face the world and have the world face him. Five said that both versions of the trailer gave viewers a better understanding of Mr Mestre’s disfigurement and that he is judged cruelly and unfairly based on his physical appearance.

Five said that the trailers for Half Man Half Tree were carefully constructed to engage viewers with Dede and his condition. In the longer version of the trailer, the accompanying commentary made it clear that Dede was a “medical phenomenon”, which alerted viewers to the fact that his condition was medical.

Five said that it did not believe that the images of Mr Mestre and Dede were images from which children need to be protected. Hiding these images from children by confining them to a post-watershed transmission would effectively be doing what Mr Mestre and Dede are determined not to do, that is hide themselves away so as not to offend or upset people. The broadcaster stated that it had no desire to broadcast images which, out of context, might have the potential to frighten children who may not understand what they see. However, Five said that the trailers were carefully constructed to avoid this and that it believed it was inappropriate to censor the physical deformity of Mr Mestre and Dede.

Decision

Rule 1.3 requires that broadcasters that children must be protected by appropriate scheduling from material that is unsuitable for them. Ofcom noted that the trailers were strong and challenging to view.

Ofcom appreciates that many viewers do not specifically choose to watch a trailer and that the images of Mr Mestre’s and Dede’s disfigurement shown in these trailers may have been shocking and/or distressing to some viewers. Ofcom also accepts that Five did not intend to broadcast images that, taken out of context, had the potential to frighten or distress children. It was noted that these trailers did not appear in or around children’s programmes.

In the circumstances of this particular case, Ofcom took the view that in context these images were appropriately broadcast. Although the images depicted Mr Mestre’s and Dede’s severe disfigurement, the focus of the trailers was on their feelings and their experiences of being seen in public and being able to face the world, which was a central theme to the programmes themselves. The trailers were not frightening or gratuitous. Therefore, Ofcom took the view that it was not appropriate or proportionate in this particular case to confine images of both men to a post-watershed slot.

On balance and with particular regard to these cases, Ofcom found that Rule 1.3 was not breached.

Not in Breach

Trailers for Bodyshock: I Am The Elephant Man
Channel 4, 2 April 2008, 17:35 and other times before 21:00

Introduction

Three versions of a trailer for the programme Bodyshock: I Am The Elephant Man were broadcast. This was about Mr Huang Chuncai from China who has an extreme form of neurofibromatosis (a genetically-transmitted disease in which nerve cells grow tumours) which has severely disfigured his face. The trailers included images of Mr Chuncai speaking to camera about the consequences his condition has had on his life. Four viewers complained to Ofcom that the images of Mr Chuncai were inappropriate for broadcast before the watershed because they might be distressing for children.

Ofcom asked Channel 4 for its comments in relation to Rule 1.3 of the Code (children must be protected by appropriate scheduling).

Response

Channel 4 said that, although it regretted that some viewers found the images of Mr Chuncai upsetting and inappropriate for broadcast pre-watershed, it did not believe that the trailers were in any way unsuitable for broadcast at times when children may be viewing. The broadcaster said that the intention of the trailers was to make viewers aware of the documentary about Mr Chuncai, which aimed to chronicle sensitively the very challenging circumstances under which Mr Chuncai lives and the isolation from society he experienced because of the way he looks.

Channel 4 said that the trailers presented Mr Chuncai as himself in his home. He does not say or do anything offensive or “worthy of censorship”. Given this, and the fact that the documentary itself was entirely about Mr Chuncai, Channel 4 said that there was no reason for placing a restriction on the time the trailers should be broadcast. The broadcaster said that the only basis for such a decision would have been based solely on the way Mr Chuncai looked, which was something which was a result of a medical condition entirely outside his control.

Decision

Rule 1.3 requires that broadcasters that children must be protected by appropriate scheduling from material that is unsuitable for them. Ofcom noted that the trailers were strong and challenging to view.

Ofcom appreciates that many viewers do not specifically choose to watch a trailer and that the images of Mr Chuncai’s disfigurement shown in these trailers may have been shocking and/or distressing to some viewers. Ofcom also accepts that Channel 4 appreciated that special care needs to be taken when scheduling the broadcast of images that, taken out of context, had the potential to frighten or distress children. It was noted that these trailers did not appear in or around children’s programmes.

In the circumstances of this particular case, Ofcom took the view that in context the images were appropriately broadcast. Although the images depicted Mr Chuncai’s severe disfigurement, the focus of the trailers was on his feelings about the circumstances under which he had to live, which was a central theme to the programme itself. The trailers were not frightening or gratuitous. Therefore, Ofcom took the view that it was not appropriate or proportionate in this particular case to confine images of Mr Chuncai to a post-watershed slot.

On balance and with particular regard to this case, Ofcom found that Rule 1.3 was not breached.

Not in Breach

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