Standards Cases

In Breach

Mike Mendoza
talkSPORT, 12 May 2007, 01:10

Introduction

Mike Mendoza presents a live phone-in programme, which is designed to challenge audiences by stimulating discussion on topics introduced by the presenter and callers to the show.

During the introduction to this programme, Mike Mendoza outlined the subjects that were to be discussed, by stating the following:

“The other thing that has really got up my nose over the last couple of days…and again you might like to comment on this…are the footballers…and I’m including David Beckham on this one ‘cause he’s jumped on the bandwagon today, and that’s exactly what they’ve done. Footballers yesterday jumping on the bandwagon to beg whoever it is that has taken Madeleine McCann away, whoever has grabbed her, to give her back…now you tell me, paedophiles in general are the type of people that surely would not follow football…not many gay people to the best of my knowledge are great football fans.”

One listener complained that this reference linking paedophiles with gay people was inappropriate. Ofcom asked the broadcaster to comment on these remarks in light of Rule 2.3 (generally accepted standards).

Response

The broadcaster said that the statements made had been indefensible. It had spoken to the presenter who accepted that he had been wrong to make them. The broadcaster then suspended Mr Mendoza for a week to underline the seriousness of his mistake.

talkSPORT offered its apologies to the complainant and anyone else who had been offended by the remarks. It believed that they have taken immediate and appropriate action to prevent any similar comments being repeated.

Decision

Rule 2.3 of the Code requires broadcasters to ensure that material which may cause offence is justified by the context. The broadcaster did not attempt to justify these offensive remarks by the context – it admitted they were not defensible and apologised.

We note the broadcaster’s immediate and appropriate action in suspending Mr Mendoza. We nevertheless are very concerned that the presenter chose to make such a remark. To connect homosexuality to paedophilia is highly offensive. We therefore regard the broadcast as a breach of Rule 2.3.

Breach of Rule 2.3

Football First
talkSPORT, 3 June 2007, 19:45

Introduction

A programme that generally concentrates on topics relating to football strayed into a discussion about the recent gay rights demonstrations in Moscow. During an exchange between a number of presenters, a remark was made that a listener objected to, as it referred to homosexuality as a perversion.

Ofcom asked the broadcaster to comment in relation to Rule 2.3 of the Code ( broadcasters must ensure that material which may cause offence is justified by the context).

Response

talkSPORT acknowledged that the presenter, Garry Bushell, was wrong to use the words that he did and had been spoken to about his remarks, which he regretted. It further made the point that his comments were made “off the cuff” and were not the subject of the discussion.

Decision

During the course of a conversation about the possibility of an English club qualifying for the European Cup final next year, the presenters discussed the fact that it would be held in Moscow where the police were known for their lack of tolerance in relation to civil disturbances. To illustrate the point, a presenter referred to a recent gay rights demonstration in Moscow . Gary Bushell, who joined the discussion to promote his programme later that evening, made light of the fact that Peter Tatchell, the well known gay rights activist, had been attacked at the demonstration by anti-gay protesters and subsequently arrested by Russian riot police. When questioned by a co-presenter because he appeared to find the situation amusing, he said that: “I would not go to another country and try and impose my views on them, it’s up to them what they do. I think there are a lot of things to put right in this country before you go around preaching the gospel of perversion”. Ofcom noted that there was some attempt by his co-presenters to challenge what he had said, but the discussion quickly moved on to football topics.

We welcome the broadcaster’s acknowledgement that the presenter’s comments were unacceptable. We nevertheless did not think that its claim that the comments were made “off the cuff” mitigated the fact that this was a live broadcast in which a presenter made an inflammatory remark about homosexuality that would generally be regarded as a derogatory and offensive comment. We therefore regard the broadcast of the comment as a breach of Rule 2.3.

Further, Ofcom notes that this is the second breach of Rule 2.3 recorded against talkSPORT in this Bulletin. We therefore remind the broadcaster that, given these programmes are broadcast live, it is particularly important that its presenters are fully briefed in advance about the potential for certain topics and types of remarks to cause offence to the audience.

Breach of Rule 2.3

Britain’s Got Talent
ITV1, 16 June 2007, 19:45

Introduction

Britain’s Got Talent was a series of nine programmes, broadcast nightly, which aimed to find an ‘unknown star’ from the general public to perform at this year’s Royal Variety Performance. The live semi-final, broadcast on ITV1 on Saturday 16 June 2007 at 19:45, featured an illusionist called Dr. Gore. 21 viewers subsequently complained to Ofcom that Dr. Gore’s ‘act’ was not suitable for weekend family viewing.

The programme was complied by Channel TV for ITV, therefore Ofcom asked Channel TV to comment in respect of Rule 1.3 (appropriate scheduling).

Response

On behalf of ITV, Channel TV said that ITV wanted to present its viewers with a wide range of live entertainment in the programme. When Dr. Gore was chosen to go through to the semi-final, Channel TV reviewed his act carefully with the programme’s executive producer to determine how it could be included in the programme without upsetting younger, sensitive or impressionable viewers.

It said that the viewing figures for the programme were consistently high throughout the week and that it therefore suspected that a very small percentage of its viewers might feel Dr. Gore’s act was unsuitable for their families. As a consequence it took particular care to ensure that his act was introduced and presented appropriately. The programme’s presenters, Ant and Dec, introduced Dr. Gore with the words “He has the power to make audiences feel sick in seconds” and this was followed by an edited minute-long clip of his audition. Channel TV believed that this was a comprehensive visual and verbal introduction which would give viewers the time to make an informed choice as to whether to watch Dr Gore’s performance or allow their children to see it.

Channel TV confirmed that Dr. Gore’s act was considerably softened and amended from that performed in the auditions and that this was as a result of extensive discussions with Dr. Gore and the programme’s producers. Notably, it said that there were no graphic, prolonged or close up shots and that an element of comedy was introduced by the inclusion of a rubber chicken amongst the materials removed from the ‘live autopsy’. It therefore believed that the performance became one of pantomime rather than horror and said that Ant and Dec drew attention to the dangers of emulating Dr. Gore by asking his assistant to show a wound he’d suffered in rehearsals.

It concluded its response by stating that the performance was presented on screen with frequent cuts away from the act itself to the reaction of the judges and the audience and that the inclusion of an element of comedy further reduced the possibility of upsetting younger or sensitive viewers.

Decision

Rule 1.3 of the Code states that “Children must be protected by appropriate scheduling from material that is unsuitable for them…appropriate scheduling should be judged according to: the nature of the content; the likely number and age range of children in the audience, taking into account school time, weekends and holidays…the nature of the channel or station and the particular programme; and the likely expectations of the audience for a particular channel or station at a particular time and on a particular day”.

Before Dr. Gore and his assistants performed on stage, a one minute preview clip of his audition earlier in the week was transmitted which featured shots of Dr Gore causing large amounts of blood to spray from his female assistant’s face. When Dr. Gore’s act began, he appeared on stage in a white doctor’s coat covered in blood and seemed to saw off his hand from the wrist with a large knife, shouting “do you want to see some gore?” A young man was then made to lie on a trolley and was covered in a blood stained white sheet and Dr. Gore appeared to use a rotary saw to remove pieces of flesh and what looked like a large organ from his body. At this point all three judges pressed their buzzers, signifying the act to stop.

The semi-final of Britain’s Got Talent was broadcast in peak family viewing time on a Saturday night and the series had featured many child performers in all its nightly heats. This programme in particular featured a singer who was six years old and a dance troupe solely comprising a number of young children, which would have further enhanced the programme’s appeal to children and families alike. It therefore would have been the audience’s expectation, particularly on a Saturday night when younger children are generally allowed to stay up later, that the programme’s content before the watershed would be suitable for them to view, not least because it was a variety programme aiming to find a member of the public who would ultimately perform for the Queen.

Ofcom also did not consider that the elements of comedy introduced into the act turned it from one of horror to pantomime. Both Dr. Gore and his assistant were dressed in medical clothing and appeared to use a real rotary saw to “extract” organs and flesh from their “victim”.

Therefore, Dr Gore’s act, regardless of efforts to edit it and to inject an element of humour, went beyond audience expectations for peak family viewing at the weekend, particularly given that audience figures suggest that more than one million children were watching. Further, Ofcom did not consider that the one minute preview clip of Dr Gore’s audition acted as a warning to viewers about the nature of Dr Gore’s act, as this clip in itself contained images that Ofcom found to be unsuitable for the time of transmission. Children should be protected from material that is unsuitable for them to view. This programme was therefore in breach of Rule 1.3 of the Code.

Breach of Rule 1.3

Nach Baliye 2
Star One, December 2006 to January 2007, various dates (21:00-23:00)

Introduction

Nach Baliye is an annual reality dance series originally broadcast in India . Its contestants are couples who are generally television stars. The Indian public can vote for its favourite dancers via mobile phones or the internet. When the series is re-transmitted in the UK , viewers are not able to vote.

A viewer complained about the promotion of products and services within the programme, in particular Reliance Mobile, an Indian mobile phone company.

Ofcom requested a statement from the broadcaster concerning the presence of a prominent logo for Reliance Mobile at various points in the programme in relation to Rules 10.3 (prohibition on promotion of products and services in programmes), 10.4 (undue prominence) and 10.5 (product placement) of the Code. It also sought comments on the inclusion of references to the sponsor, Garnier Fructis, within the show under Rules 9.5 (sponsor influence) and 9.6 (sponsor references within programmes).

Response

Inclusion of Reliance Mobile logo

The broadcaster, Asian Broadcasting FZ LLC, said that during the shows broadcast in India , viewers were invited to vote for their favourite contestant. In all cases voting was open to Indian residents only. Various voting options were provided: public landline, SMS text message or at a dedicated website, with subscribers of the mobile operator Reliance Mobile able to dial a dedicated number. The Reliance Mobile logo was displayed whenever voting information was provided to viewers. In the channel’s view, use of the logo was necessary since this option was only open to subscribers of Reliance Mobile.

In relation to Rules 10.3 and 10.4, its understanding was that these only applied to commercial products and services available in the Ofcom licensee’s transmission area. In this case Reliance Mobile’s mobile telecommunications services were only available in India and it therefore believed that that the inclusion of the Reliance Mobile logo was not unduly prominent.

In relation to product placement (Rule 10.5), the broadcaster confirmed that a payment had been made to the programme producer by Reliance Mobile for display of its logo. However it had acquired the programme from outside the UK and received no direct financial benefit from this arrangement. It believed that there had therefore been no breach of this rule as the arrangement fell within one of the recognised exceptions to Rule 10.5, namely:

For television, arrangements covering the inclusion of products or services in a proqramme acquired from outside the UK … provided that no broadcaster regulated by Ofcom and involved in the broadcast of that programme or film directly benefits from the arrangement .

References to sponsor – Garnier Fructis

In relation to Rule 9.5, the broadcaster confirmed that Garnier Fructis did not have any influence on the content nor on the scheduling of the programme in the UK . In its view, editorial independence had therefore been maintained at all times and there had therefore been no breach of this rule.

In relation to Rule 9.6, it considered that the display of the sponsor’s logo on the set of the show (with “Garnier Fructis presents”), had helped to ensure the transparency of the sponsorship arrangement to all viewers. However, it acknowledged that the inclusion of the logo on set may have been a breach of Rule 9.6 and stated that it would endeavour to comply with this Rule going forward.

Decision

In considering possible undue prominence of the Reliance Mobile logo under Rule 10.4, Ofcom noted that in the edition of the programme viewed this logo had appeared regularly throughout, whenever voting information was presented on screen. Notwithstanding the assurances that the company’s services were only available in India , Ofcom considered that there had been insufficient editorial justification for the degree of prominence given in this case. In relation to product placement, Ofcom accepted the broadcaster’s assurances and concluded that the exception to the Rule had applied in this case.

With reference to the sponsorship issues raised, Ofcom accepted the assurances that the broadcaster had retained editorial independence and therefore there had not been a breach of Rule 9.5.

However, in relation to references to the sponsor within the programme (Rule 9.6), it considered that there had been a breach of the Code. It noted that the Garnier Fructis logo and the statement “Garnier Fructis presents” appeared on the front of the studio podium on which the panel of judges sat and appeared regularly in shot during the programme. The logo and statement also appeared elsewhere in the programme, as part of pre-break ‘teases’ for upcoming events in the next section of the programme and alongside two trails for spin-off programmes.

Ofcom did not accept the argument raised concerning transparency of the sponsorship arrangement. The Code requires that the sponsor must be identified at the beginning and/or end of the programme. Sponsor credits are also permitted at breaks. In this instance, the logo and sponsor statement had appeared in such break credits and this use had been acceptable. However, the other references, within the programme itself, were in breach of the Code.

Breach of Rules 10.4 and 9.6

Voice of Africa Radio (Radio Licensable Content Service)
18 January 2007, 22:00

Introduction

Ofcom asked Voice of Africa Radio (VOAR) to provide a copy of a recording relating to an investigation of a fairness and privacy complaint. The station was unable to provide Ofcom with a copy.

Ofcom asked VOAR to comment with regard to Condition 8 of its Licence, which requires that recordings of its output as broadcast are retained for 42 days after transmission, and it provides Ofcom with any such material on request.

Response

The broadcaster explained that it was unable to provide Ofcom with a copy because its recording system had broken down during the week prior to the broadcast in question. Efforts were being made to restore the system before the incident occurred.

Decision

The condition in licences obliging broadcasters to provide material as broadcast is a crucial one, since Ofcom relies on it for evidence when investigating potential breaches of the Code. Whilst we acknowledge VOAR’s claim that efforts were being made to repair their recording system, the failure to reinstate the system with sufficient urgency led in this instance to Ofcom being unable to consider this fairness and privacy complaint in the absence of a recording.

The failure by VOAR to supply the recording from 18 January 2007 was a serious and significant breach of VOAR’s licence. This will be held on record.

Breach of Condition 8 of VOAR’s Licence

Resolved

Sky News
Sky News, 25 April 2007, 19:00

Introduction

A viewer complained that the channel broadcast the word ‘fuck’ during a live link to the opening of the trial of Phil Spector. The complainant objected to the fact that an early evening news programme allowed this to happen and had not used a time delay.

Ofcom asked the broadcaster to comment in respect of Rule 1.14 (the most offensive language must not be broadcast before the watershed or when children are particularly likely to be listening) and Rule 2.3 (generally accepted standards) of the Code.

Response

Sky accepted that the word was broadcast before the watershed but regretted that it was impossible to have anticipated that such language would have been used by the lawyer at the trial.

It maintained that broadcast of the offending word occurred as part of a faithful and contemporaneous account of a public statement by a prosecutor in a court of law, and that use of the word was not aimed at someone present, nor said in spite or anger and was not used in a threatening way.

Sky confirmed that it took seriously the broadcast of offensive language. It assured Ofcom that in cases where offensive language might be anticipated, it would use a time delay system so as to avoid the risk of any potential offence.

Sky apologised for any offence it may have caused by the broadcast of the word.

Decision

Rolling live news channels face different challenges, in terms of compliance, to other broadcasters. These channels provide services which, as a matter of public interest, should be able to report the news accurately as it happens.

Because of the immediacy of news and the necessity to go live at times, the broadcaster has less control of its editorial output. There is always the possibility that material transmitted on these channels may be unsuitable for children, although these services are generally aimed at adults and for a ‘self-selecting’ audience.

While news channels should always aim to minimise the use of offensive language pre-watershed, there are exceptional occasions when, because of their nature, such language is broadcast.

In this case, Ofcom took the view that offensive language was unlikely to have been anticipated from a live news report from a courtroom, unlike for example, in programmes where the inclusion of such language was more likely and necessitated greater care over compliance.

We then considered the context of this programme and whether within context it had complied with Rule 2.3. We took into account the editorial content, the service on which the material was broadcast, the likely size and composition of the potential audience and any supporting information that was given. In this case, it was a live news broadcast from a courtroom, contained within a rolling news service, and aimed primarily at an adult audience. An apology was made very soon after the word had been broadcast.

We also considered the broadcast of this word in the light of Rule 1.14: broadcast of the most offensive language before the watershed. Ofcom notes the word ‘fuck’ is one of the most offensive swear words and should not be broadcast before the watershed or when children are likely to be listening. However, its broadcast in this instance was an isolated incident in a live news report, unlikely to attract a significant child audience. Furthermore, we believe it would not normally be expected to be used in the circumstances of this particular live report.

We welcome the apology given shortly after the incident and Sky’s assurances that it takes the broadcast of offensive language seriously. Taking into account all of these factors, Ofcom considers the matter resolved.

Resolved

Fairness and Privacy Cases

Upheld in Part

Complaint by Mrs Anwar Begum
Sky News Report: Forced Marriages, BSkyB, 29 March 2006

Summary: Ofcom has partly upheld this complaint of unfair treatment and unwarranted infringement of privacy.

The programme reported on forced marriages and featured three of Mrs Anwar Begum’s daughters who alleged that they had either been forced into marriage or had run away from home for fear of being forced into marriage.

Mrs Begum complained that she was treated unfairly and that her privacy was unwarrantably infringed in the programme as broadcast in that: it told “lies” about her family; neither she nor her family were told about the broadcast of the programme; and, it revealed her family home address and her family name (Hussain).

The broadcaster, BSkyB, argued that the report did not tell “lies” and that it centred on the experiences of three of her daughters and was told in their own words. It said that her husband and her daughters were aware that the report was to be broadcast. It argued that the disclosure of the Hussain family name did not result in any unfairness to Mrs Begum in the context of a report which identified her two daughters who participated willingly in the programme and had agreed to be identified. It also said that her privacy was not infringed by, nor did any unfairness result from, showing the family home as there was insufficient information to identify its address.

Ofcom found that: the comments made by Mrs Begum’s daughters in the report were likely to materially affect viewers’ understanding of Mrs Begum and her alleged role in the marriages of two of her daughters. This amounted to a serious criticism of Mrs Begum and the programme makers’ failure to give her an appropriate and timely opportunity to respond to the allegations resulted in unfairness to her.

Ofcom also found that: Mrs Begum, would have been aware of the report and that it was to be broadcast; that as the family name was already in the public domain, it was reasonable for the report to have used the names of the sisters who agreed to appear in the programme. Ofcom took the view that the identification of Mrs Begum as belonging to this family did not result in unfairness to her; and, that the images of Mrs Begum’s home were not sufficient to be able to identify the location or address of the property. Ofcom therefore found that Mrs Begum’s privacy had not been unwarrantably infringed in the programme as broadcast.

Introduction

On 29 March 2006 , Sky News broadcast a report about forced marriages, that is where one person is tricked or threatened into marriage against his or her will often as the result of family pressures. The report focused in particular upon three sisters: Mrs Zaira Steele (née Hussain and referred to as Zaira Hussain in the programme), Ms Shagofta Hussain and ‘Saima’ (whose identity was obscured in the programme). The sisters recounted their experiences of being forced into marriage (or, in the case of Ms Shagofta Hussain, of running away from home for fear of being forced into marriage) and expressed their thoughts about the treatment they received from their parents and husbands.

In the programme, Mrs Steele alleged that she had been forced to marry at the age of 16. Her Pakistani husband had joined her two years later in the UK . She also alleged that her husband had abused her and that her parents had not helped her when she asked them. Mrs Steele left her first husband and was now married a man of her own choice. The report also alleged that her sister, ‘Saima’, was rescued from a forced marriage in Pakistan and that their younger sister, Ms Shagofta Hussain, had run away from home when she was 15 years of age for fear of being forced into marriage.

Mrs Anwar Begum is Mr Hussain’s wife and the mother of the three sisters featured in the programme. Mrs Begum did not appear in the programme herself, nor was she referred to by name. However, Mrs Steele made a specific reference to her mother in the report. She stated that:

“I was 16, for God’s sake. I had the rest of my life ahead of me. They didn’t think about it. My mother was not willing to help me when I begged her…when your child is begging you for help and you’re quite willing to ignore it in the hope that they will please your relations and the rest of the community, why should I turn round and try and understand their feelings?”

Also, all three sisters, Mrs Steele, Ms Shafofta Hussain, and ‘Saima’, referred to their “parents” and made other references to their parents as “them” and “they” when making their allegations in the report.

The complainant’s husband Mr Makhtoor Hussain, the father of the three sisters who featured, was named in the programme and footage of him and the exterior of his home were shown in the programme as the programme’s reporter, Ms Eve Richings, ‘doorstepped’ him to ask for his side to the story. Mr Hussain declined to comment and later confirmed this to the reporter through his solicitor. The programme referred to the Hussain family house as being located in Peterborough .

Mrs Begum complained to Ofcom that she was treated unfairly in the programme and that her privacy was unwarrantably infringed in the programme as broadcast.

The Complaint

Mrs Begum’s case

In summary, Mrs Begum complained that she was treated unfairly in the programme in that:

a) the programme told “lies” about her family, namely that they (Mrs Begum and Mr Hussain) had forced their daughters into forced marriages and she and her family were not told about the broadcast of the programme in advance; and,

b) the family’s address was given in the programme along with the family name.

In summary, Mrs Begum also complained that her privacy was unwarrantably infringed in the broadcast of the programme in that:

c) her family home address was given in the programme; and,

d) “different family issues” were spoken about on the programme.

BSkyB’s case

In summary and in response to Mrs Begum’s fairness complaints, BSkyB said that:

a) BSkyB said that the report did not tell “lies” in alleging that Mrs Begum ad her husband had forced their daughters into marriage. The report centred on the experiences of three of her daughters and was told in their own words. BSkyB said that it was reasonable to include their accounts in the report as the journalist concerned, Ms Eve Richings, had first heard about their experiences through contacts at the Foreign Office and had met Mrs Steele at the launch of a Home Office leaflet for schools about forced marriages. Mrs Steele had given a public account of her story at the launch and her story had been previously published in a newspaper.

BSkyB said that, in accordance with Ofcom’s Broadcasting Code, the programme makers had approached the complainant’s husband Mr Hussain (directly and subsequently through his solicitor) offering him an opportunity to respond to the allegations made by his daughters and to put forward his side of the story. However, according to Ms Richings’s statement submitted in support of BSkyB’s response to the complaint, Mr Hussain declined the offer and Ms Richings left her business card with him. Shortly after giving Mr Hussain her business card, his solicitor contacted Ms Richings and said that she would make enquires to see if she could give a statement on Mr Hussain’s behalf.

BSkyB said that in order to present Mr Hussain’s side of the story in an appropriate light, BSkyB included his ‘doorstepped’ explanation that: he did not want to make any comment; just wanted his daughters “to be happy”; and, that he agreed that the matter had had a devastating affect on his family. BSkyB argued that the image of Mr Hussain as a compassionate and understanding father concerned only for the happiness of his daughters in the report was in stark contrast to the account portrayed by his daughters. BSkyB said that if the footage of Mr Hussain had not been included, he would have been portrayed in a significantly worse manner in the report and so, by implication, would the complainant, Mrs Begum.

BSkyB said that contrary to Mrs Begum’s complaint, her family were forewarned of the report’s broadcast. Her husband, Mr Hussain (via his solicitor) and her daughters were informed about the programme before broadcast. In these circumstances, BSkyB said that Mrs Begum was not treated unfairly through any lack of notice of the broadcast of the report

b) BSkyB stated that while the report did show the outside of her house, what was shown was not sufficient to reveal the address of the property to viewers. Accordingly, it said that showing the outside of the house in this way was not unfair to Mrs Begum. BSkyB also said that it was not unfair for the report to reveal the Hussain family name as it identified two of Mrs Begum’s daughters who had agreed to be identified and willingly participated in the programme. In addition, BSkyB said that one of her daughters, Mrs Steele, had previously been featured in a newspaper article in which she was identified by her full name (referred to as Zaira Hussain in the article), including the family name. Accordingly, BSkyB said that the family name was already in the public domain in respect of the allegations made in the report.

In summary, and in response to Mrs Begum’s privacy complaint, BSkyB said that:

c) BSkyB argued that the address details of the family home were not given the report, nor was the inclusion of the footage taken of the outside of Mrs Begum’s home sufficient to identify the location or address of the property other than it was in Peterborough. Accordingly, BSkyB argued that her privacy was not infringed by the report, as the outside of the house was only shown in context of Mr Hussain’s explanation as to why he did not wish to comment further.

d) BSkyB said that it was not clear what “different family issues” Mrs Begum was referring to in her complaint. There was insufficient detail or explanation in the complaint to enable BSkyB to respond to this element of Mrs Begum’s complaint of unwarranted infringement of privacy in the broadcast of the programme.

Decision

Ofcom’s statutory duties include the application, in the case of all television and radio services, of standards which provide adequate protection to members of the public and all other persons from unfair treatment and unwarrantable infringement of privacy in programmes included in such services.

In carrying out its duties, Ofcom has regard to the need to secure that the application of these standards is in the manner that best guarantees an appropriate level of freedom of expression. Ofcom is also obliged to have regard in all cases, to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.

This case was considered by Ofcom’s Executive Fairness Group. Ofcom considered the complaint and the broadcaster’s response, together with supporting material and a recording and transcript of the programme as broadcast. In its considerations, Ofcom took account of Ofcom’s Broadcasting Code (“the Code”).

In the circumstances of this case, Ofcom found the following:

Unfairness

Ofcom considered these complaints in light of Rule 7.1 of the Code which states that broadcasters must avoid unjust or unfair treatment of individuals or organisations in programmes. Ofcom also took account of Practice 7.9 of the Code which states that before broadcasting a factual programme, including programmes examining past events, broadcasters should have taken reasonable care to satisfy themselves that: material facts have not been presented, disregarded or omitted in a way that is unfair to an individual or organisation; and, anyone whose omission could be unfair to an individual or organisation has been offered an opportunity to contribute. Also it took account of Practice 7.11 which states that if a programme alleges wrongdoing or incompetence or makes other significant allegations, those concerned should normally be given an appropriate and timely opportunity to respond.

a) Ofcom first considered Mrs Begum’s complaint that the programme unfairly told “lies” about her family, namely that they (Mrs Begum and her husband, Mr Hussain) had forced her daughters into marriages, and that she and her family were not told about the broadcast of the programme in advance.

Although Mrs Begum was not named in the report, Ofcom noted the comments made by Mrs Steele in the programme that specifically referred to her:

“I was 16, for God’s sake. I had the rest of my life ahead of me. They didn’t think about it. My mother was not willing to help me when I begged her…when your child is begging you for help and you’re quite willing to ignore it in the hope that they will please your relations and the rest of the community, why should I turn round and try and understand their feelings?”

Ofcom also noted the comments made by ‘Saima’:

“There is no right way of punishing them. If they could get six months in a prison cell then they’ll realise what I felt like – and I didn’t do anything wrong. Six months is along time…half a year of my life, wasted.

(off camera question): So you think they deserve it, if they finally know what you felt like?

They deserve, they deserve a lot more, a lot more than prison.”

Ofcom also noted the commentary said that:

“Zaira feels she’ll never forgive them…”

“Zaira believes if forced marriage was crime – her parents would havethought twice before subjecting her to one – so do her two sisters”.

Ofcom considered 7.9 of the Code referred to above and concluded that it was reasonable for the programme makers to include in the report the allegations of three of Mrs Begum’s daughters based on their direct personal experiences. Ofcom considered Mrs Begum’s complaint that she was not informed about the programme in advance and, in particular, considered whether or not Mrs Begum herself should have been afforded an appropriate and timely opportunity to respond to the comments made by her daughters in the programme. Ofcom had regard to Practice 7.11 of the Code when considering this element of her complaint.

Ofcom first considered whether or not the comments of Mrs Begum’s three daughters alleged wrongdoing, incompetence or made significant allegations about her specifically. It was clear to Ofcom, from watching the programme and reading a transcript of it, that her daughters’ comments, and in particular Mrs Steele’s specific reference to her mother, did have the potential to convey the impression to viewers that Mrs Begum was complicit in the forcing of two of her daughters into marriage against their will and to have been unresponsive to their pleas for help.

Ofcom noted that Ms Richings, the programme’s reporter, had approached Mr Hussain (Mrs Begum’s husband) and his solicitor and had given him an opportunity to respond to the allegations. Ofcom noted that, according to Ms Richings’s statement, she had left her business card with Mr Hussain. Subsequently his solicitor had made contact with Ms Richings and had said that she would consider the possibility of providing a statement on Mr Hussain’s behalf. Ofcom noted that Ms Richings did not say in her statement that Mr Hussain’s solicitor was asked to provide a response on behalf of Mrs Begum.

Ofcom noted that there was nothing in BSkyB’s response, or in the programme itself, to suggest that the programme makers had specifically approached Mrs Begum to give her an opportunity to respond to the allegations made by her daughters.

Taking these factors into account, Ofcom considered that the comments made by Mrs Begum’s daughters in the report, and in particular the comments made by Mrs Steele and ‘Saima’, were likely to materially affect viewers’ understanding of Mrs Begum and her alleged role in the marriages of the two daughters featured in the report. It was for these reasons that Ofcom considered that the allegations made in the programme did amount to a serious criticism of Mrs Begum. Ofcom considered that in these circumstances, it was not sufficient for the programme makers to rely solely on approaching Mr Hussain and his solicitor for a response to the allegations, as the allegations were also equally aimed at Mrs Begum and a specific approach to her was not made. Ofcom noted that such an approach would have informed Mrs Begum about the programme in advance and offered her an appropriate opportunity to respond to the allegations discussed above. While Mrs Begum may have been aware, through her husband’s solicitor, of the programme’s preparation, Ofcom found that the programme makers did not give Mrs Begum an appropriate and timely opportunity to respond to the allegations made in the programme since a specific approach was not made to her.

Accordingly Ofcom found this resulted in unfairness to Mr Begum.

b) Ofcom considered Mrs Begum’s complaint that the family’s address was unfairly given in the programme along with the family name.

In considering this element of Mrs Begum’s complaint, Ofcom took account of Practice 7.9 of the Code referred to above.

Having examined the programme as broadcast and read a transcript of it, Ofcom noted that the exterior of Mrs Begum’s home was shown and that the commentary had stated that it was located in Peterborough . Ofcom noted, however, that the footage did not reveal any house name or number or any other distinguishing signs such as a street name or recognisable landmarks.

In these circumstances, Ofcom was satisfied that the information disclosed in the programme in relation to her home was insufficient to identity her address or its location other than it was in Peterborough and therefore found that this was not unfair to her. In any event it was unclear as to how the identification of her family home would have resulted in unfairness to Mrs Begum.

In consideration of Mrs Begum’s complaint that the family name was used in the programme and that this was unfair to her, Ofcom noted that the Hussain family name was used in the programme (although the complainant uses the name Mrs Anwar Begum). It also noted that the family name was already in the public domain as the story of one of the three sisters had been featured in a newspaper article. In these circumstances, Ofcom was satisfied that it was reasonable for the report to have used the names of the sisters who appeared in the programme and that it was not unfair to Mrs Begum for her family name to be referred to in it.

In these circumstances, Ofcom found that there was no unfairness to Mrs Begum in these respects.

Privacy

In Ofcom’s view, the line to be drawn between the public’s right to information and the citizen’s right to privacy can sometimes be a fine one. In considering complaints about the unwarranted infringement of privacy, Ofcom will therefore, where necessary, address itself to two distinct questions: First, has there been an infringement of privacy? Second, if so, was it warranted? (Rule 8.1 of the Code). In addition to this, Ofcom took into account Practice 8.2 of the Code which states that information which discloses the location of a person’s home or family should not be revealed without permission, unless it is warranted.

c) Ofcom considered Mrs Begum’s complaint that her privacy was unwarrantably fringed in the broadcast of the programme in that the address of her family home was given in the programme.

Ofcom first considered whether or not Mrs Begum had a legitimate e xpectation of privacy concerning the revelation of her family home and its address in the programme. In deciding this, Ofcom took account of Practice 8.2 of Code which states that information that discloses the location of a person’s home or family should not be revealed without permission, unless it is warranted. In these circumstances, therefore, Ofcom was satisfied that Mrs Begum did have a legitimate expectation of privacy concerning her family’s home address.

Ofcom then considered whether or not Mrs Begum’s privacy was infringed in the broadcast of the programme. Having examining the footage in the programme, Ofcom noted that only the outside of the house was shown in close detail. No number or house name was disclosed, nor was any mention made of the location of the house other than it was in Peterborough .

In these circumstances, Ofcom was satisfied that the address details of Mrs Begum’s home were not disclosed in the report and that the images of the exterior of her house were not sufficient to be able to identify the location or identify the address of the property. Ofcom therefore found that Mrs Begum’s privacy had not been infringed in the programme as broadcast. In these circumstances, it was not necessary for Ofcom to go on to consider whether or not any infringement was warranted.

d) Ofcom considered Mrs Begum’s privacy complaint that “different family issues” were spoken about on the programme.

Ofcom approached Mrs Begum on repeated occasions to seek larification of the meaning of the “different family issues” complained of. However, Mrs Begum did not respond and so no clarification of this complaint was provided. Ofcom considered that in these particular circumstances, it was not possible for it to adjudicate on this point. It therefore found there was no infringement of privacy to Mrs Begum in this respect. In these circumstances, it was not necessary for Ofcom to go on to consider whether or not the infringement was warranted.

The complaint of unfair treatment was partly upheld. Mrs Begum’s complaint of unwarranted infringement of privacy in the programme as broadcast was not upheld.

Accordingly, Ofcom found the broadcaster in breach of Rule 7.1 of the Code.

Not Upheld

Complaint by Mr Gary Hall
MacIntyre’s Big Sting: Wembley, Five, 22 February 2006

Summary: Ofcom has not upheld this complaint of unfair treatment and unwarranted infringement of privacy in both the making and broadcast of the programme. The programme followed a police operation to affect outstanding arrest warrants by inviting unsuspecting offenders to a bogus football event. Mr Gary Hall was one of those invited and subsequently arrested by the police.

Mr Hall complained to Ofcom that he was treated unfairly in the programme in that: he was portrayed unfairly; and, it included incorrect statements about him. He also complained that his privacy was unwarrantably infringed in both the making and broadcast of the programme in that he was “entrapped” into appearing in the programme and that he did not give his permission for the footage taken of him to be used.

Ofcom was satisfied that the programme did not portray him unfairly and in a way that would have materially affected viewers’ understanding of Mr Hall and the motoring offences that he had been convicted of.

Ofcom found that Mr Hall had a legitimate expectation of privacy in the circumstances and that the surreptitious filming of Mr Hall at the event and the subsequent broadcast of that footage did infringe his privacy.

However, Ofcom was satisfied that there was a strong public interest justification in filming the police operation and what happened to Mr Hall at the event to highlight the issue of outstanding arrest warrants and the wider impact of criminal behaviour. Ofcom therefore found that the programme makers were justified in: filming Mr Hall at the event; including that footage in the programme; and, in identifying Mr Hall.

Introduction

On 22 February 2006 , Five broadcast MacIntyre’s Big Sting: Wembley. This programme, one of five in the series, followed police operations to enforce outstanding arrest warrants. The programme featured a launch party in the new Wembley stadium for a new and fictional football magazine called “Balls”. However, the event was a set-up devised by the programme makers and the police to entice unsuspecting offenders wanted on post-conviction arrest warrants for failing to appear at court for not paying fines or for failing to complete community service. The police were waiting behind the scenes of the event to arrest those who attended. Mr Gary Hall was one of the people invited to the event and was arrested by police officers after being led though a number of phoney launch activities. Mr Hall was named in the programme and footage of him was included in it.

Mr Hall complained to Ofcom that he was treated unfairly in the programme and that his privacy was unwarrantably infringed in the both the making and the broadcast of it.

The Complaint

Mr Gary Hall’s case

In summary, Mr Hall complained that he was treated unfairly in the programme as broadcast in that:

1. The programme stated wrongly that Mr Hall was “threatened with jail” and that he had spent the night in jail after the event.
2. The programme portrayed him as a man “out to do wrong” without giving him the opportunity to respond to the allegations made against him.
3. The programme connected him, wrongly, with the death of another man’s son.
4. The footage of him was edited unfairly. In particular, Mr Hall said that:
   

   i) On arrival at the event, he was promptly put into the prize car and given a beer to drink, to which he responded, “this doesn’t look good”, and so handed it back. This, Mr Hall said, was not shown in the programme.

   ii) He was shown a video of someone who supposedly looked like David Beckham and was asked if he thought that it looked like Beckham. To be polite, Mr Hall said that he answered “a bit”.

   iii) He was confronted by around 30 police officers who arrested him for failing to appear at court.

   iv) There was a Sven-Goran Eriksson look-a-like at the penalty shoot out who was shown on the programme as if he was “the real one”.

   v) The programme makers blatantly tried to portray him as “some dumb down an’ out”. Mr Hall said that the footage was edited to make it seem as such.

e) Mr Hall also complained that his privacy was unwarrantably infringed in both the making and broadcast of the programme in that the programme makers came to his home on a number of occasions in the guise of event organisers and “entrapped” him into appearing in the programme. As it was easy to get him to attend, Mr Hall said that it was unwarranted to have included footage of him in the programme. Mr Hall said that his offences did not warrant his inclusion in the ‘sting’ operation and that if he was so easily accessible (that is, at home), the police could have “handled” the matter. Mr Hall also said that he did not sign a release form and that he objected to appearing in the programme. Mr Hall said that had been in constant email contact with the Five from the day of the event until two days before it was broadcast.

Mr Hall said that both the programme makers and the police had set up an elaborate ‘scam’ to entrap people, including him, into participating in a launch of a new soccer magazine that did not exist. Mr Hall said that this was backed up by phoney literature sent to his home and numerous visits by people posing as magazine representatives to encourage him to attend.

Five’s case

In summary, and in response to Mr Hall’s complaint, Five said that the non-appearance by defendants at court, either to face charges or for sentencing, is a significant problem for the police, the Crown Prosecution Service and the judicial system. With this in mind, both Five and the programme makers believed this issue to be one of important public interest which warranted highlighting.

Five said that the police had identified a need to enforce arrest warrants which were outstanding and where offenders had not been apprehended and bought before the courts by conventional means. As part of this process, the police undertook ‘sting’ operations where they invited those who were the subject of outstanding arrest warrants to an event where they could be detained and then processed through the judicial system. This operational method, as depicted in the programme, was used by the police both in the UK and abroad and was not novel. Five said that the operation and the event at Wembley were under the ultimate control and direction of the police. The role of the programme makers was to help organise a credible event which would attract those reluctant to attend court and to film the operation. The operation at Wembley took place on 29 October 2005 .

In Mr Hall’s case, Five said that he was originally stopped by police on 3 June 2004 and was subsequently charged with driving a heavy goods vehicle in a dangerous condition. On 5 November 2004 , Mr Hall was found guilty of a number of offences associated with this incident and was due to be sentenced on 3 December 2004 . However, Mr Hall failed to appear and a warrant was issued for his arrest. On 20 January 2005 , Mr Hall was arrested and bailed to appear at court on 3 February 2005 . Again, he failed to appear. Between this date and 20 February 2006 (when Mr Hall surrendered himself to the police), he had either: failed to appear at court; was apparently not present when the police tried to execute the arrest warrant at his home; or, the scheduled hearing had to be adjourned because Mr Hall was ill. Five said that Mr Hall was finally sentenced, some 15 months after being convicted, to fines totalling £475, £70 costs and a six months driving ban.

In summary and in response to the specific heads of complaint of alleged unfair treatment made by Mr Hall, Five said that:

1. The programme did not state that Mr Hall had been “threatened with jail” or that he had spent the night there after his arrest. The only reference to custody in relation to him was made at the end of the programme in which the programme’s commentary stated that Mr Hall had failed to appear at court after his arrest. In the interests of fairness and accuracy, Five said that the continuity announcer had read out over programme’s end credits that Mr Hall eventually handed himself in to the police and was duly sentenced by the court. This information was based on that provided to the programme makers by the police.
2. The programme did not portray Mr Hall as a man “out to do wrong” as alleged in his complaint. Five said that he was portrayed as a man who had committed a series of motoring offences and had failed on a number of occasions to attend court to be sentenced, thereby wasting police and court time and incurring additional costs payable from the public purse. In the circumstances of this particular programme, Five said that it did not accept that Mr Hall had a right to reply. Also, Five said that it should be noted that Mr Hall had written to Five on 30 October 2005 and had been in email correspondence with Five prior to and after the transmission of the programme. At no time, Five said, did Mr Hall offer any explanation for his conviction or why he had repeatedly failed to attend court which would help justify or explain his conduct and could have been considered for inclusion in the programme.
3. The programme did not explicitly link Mr Hall to any road accident or fatality as evidenced by the programme’s commentary.
4. Five said that the untransmitted material provided to Ofcom demonstrated that the footage in which Mr Hall appeared was not edited unfairly. In response to the specific points raised by Mr Hall concerning his portrayal, Five said that:

1. There was no evidence from the untransmitted footage that supported Mr Hall’s assertion that he had handed back the bottle of beer offered to him by saying “this doesn’t look good”. The footage showed that Mr Hall had kept hold of the beer and did not hand it back until he was asked to do so when moving into the next area of the event.
2. The programme did include Mr Hall’s comment “it’s not Beckham” when he was shown a video of a David Beckham impersonator. Five said that Mr Hall was not made to look like he believed it was the real David Beckham and, while the sound on the video may not have been audible at the event, its inclusion in the programme raises no issue of unfairness.
3. Mr Hall was not confronted with 30 police officers when he was arrested at the event. Five said that there were only three police officers present when the arrest was carried out.
4. There was nothing in the programme which would lead a viewer to believe that Mr Hall was not aware that the Sven-Goran Eriksson impersonator was not the real Sven-Goran Eriksson. In any event, Five said that the manner in which this sequence was edited and included in the programme created no unfairness to Mr Hall.
5. There was nothing in the programme that supported Mr Hall’s assertion that the editing made him look like “some dumb down an’ [sic] out”. Five said that the programme portrayed Mr Hall as a person who repeatedly failed to attend court for sentencing and that he was someone who was subject to the police operation where he and others could be arrested and then processed through the judicial system.

e) In summary and in response to Mr Hall’s complaint that his privacy was unwarrantably infringed in both the making and broadcast of the programme, Five said that the decision to invite Mr Hall to the event in order to arrest him was an operational matter for the police. As such, any impact this operation had on Mr Hall’s privacy is outside Ofcom’s statutory remit to adjudicate on privacy issues in respect of television programmes.

Five said that it was legitimate for the police to include Mr Hall as part of their operation as he had failed to attend court for sentencing. The enforcement of outstanding arrest warrants was a matter of important public interest and Mr Hall’s decision not to adhere to the criminal justice system meant that the programme makers were justified in following the police operation to enforce the arrest warrant in the manner the police deemed appropriate as part of a programme highlighting this issue and the wider impact of criminal behaviour. In all the circumstances, Five said that it was clear that any infringement of Mr Hall’s privacy by the filming and broadcast in the programme was warranted by his conduct.

Five said that it was justified in using hidden cameras to surreptitiously film Mr Hall on the grounds that the story being investigated was in the public interest, there were reasonable grounds to believe that the material evidence would be obtained and that it was necessary to establish the credibility and authenticity of the story. Permission was given by Five’s Director of Programmes and its Senior Programme Controller, News and Current Affairs. To have filmed openly would have alerted those invited to the event. Once those people were identified and arrested, the programme makers filmed openly.

Five said that the implication of Mr Hall’s complaint was that his offences did not warrant the elaborate nature of the operation. How the arrest warrant was executed was a matter for the police who took the view that the ‘sting’ operation was appropriate in the circumstances. Further, Mr Hall’s position sought to undermine the seriousness of the offences he committed – driving without insurance and without a licence in an un-roadworthy vehicle places other road users at risk of injury or damage to their property. However, the nature of Mr Hall’s offences was not necessarily the key issue – it was the fact that he was subject to an outstanding arrest warrant.

Five said that as Mr Hall was the subject of an arrest warrant, his inclusion as part of the operation was, in the police’s view, justified. In other operations those guilty of very minor offences (for example, non-payment of the television licence) have not been included. However, this was not the case with Mr Hall. Five said that Mr Hall asserted in his complaint that as he was at home the police could have easily picked him up there. Again, the manner in which the police executed the arrest warrant was a matter for the police and Five said that it seemed disingenuous of Mr Hall to say that there was no need to take him to the event because the police would have found him at home and so could have arrested him there. It was the fact that he was brought to the police under the auspices of a football event which allowed them to arrest him in a controlled manner.

Five said that it was highly unlikely that anyone detained in the operation would have signed a release form and permitted themselves to be included in the programme. Five believed that the public interest clearly justified the filming of this police operation and the broadcast of the programme without the necessity for written consent.

Five said that it believed that the public interest warranted identifying the individuals arrested as part of the operation. Five said that Mr Hall had sought to have his identity obscured in the programme by falsely alleging that this had been agreed by an employee at Five. Mr Hall then gave himself up to the police on 20 February 2006, the day he received an email confirming that he would be identified in the programme which was due to be transmitted on 22 February 2006. Five said that this meant that four months after the sting operation when Mr Hall can have been in no doubt about his legal obligations, he was still ignoring arrest warrants and failing to attend court to be sentenced. Five questioned whether he would have ever voluntarily given himself up and attended court had it not been for the broadcast of the programme.

Five said that Mr Hall had received an invitation to attend the bogus launch event. However, he had not received the numerous visits to his home by the programme makers as he alleged in his complaint. The programme makers made only one visit to Mr Hall’s home to remind him of the event after he failed to respond to the original invitation. On the day of the event, Mr Hall was picked up by a taxi and taken to the event. No other visits were made to him. Five said that to ensure that Mr Hall would attend the bogus event, he had to be in receipt of his invitation. The visit to his home by non-police staff was designed to ensure that he did not forget to attend the event. The visit was not filmed covertly and he was not filmed going to the event in the taxi. In these circumstances, Five said that the steps taken to get Mr Hall to attend the event (so that he could be arrested along with other people subject to outstanding arrest warrants) was a matter for the police.

In all the circumstances, Five said that it believed that the filming of the operation and the broadcast of the footage identifying Mr Hall was clearly in the public interest and as such any infringement of privacy was “manifestly” warranted.

Mr Hall’s comments

In summary and in response to Five’s statement, Mr Hall said that:

a) Mr Hall made no further relevant comments on this point.

b) Mr Hall said that he did not deem it appropriate to explain his actions to Five as it would not have been scripted in a fair way. He said that his explanation “should be for the police and the court alone, in the form of a police station or courthouse”.

c) Mr Hall made no further relevant comments on this point.

d) Mr Hall made no further relevant comments on these points.

e) Mr Hall said that he had spoken to someone at Five on the telephone who had told him that all voices and faces would be obscured. However, it appeared that there are no records of this conversation.

Mr Hall said that he had not asked for, nor did his actions warrant, the programme makers and the police to entrap him, and for the programme makers to repeatedly appear at his door as phoney representatives. Mr Hall said that “the flyers and copies of the envelopes” evidenced that the programme makers had visited him on more than one occasion. He said that to get him to appear at court would have been achieved by appearing at his door as uniformed officers. Mr Hall said that failing to appear for driving offences did not warrant the police or the programme makers developing an “attachment between [him] and Donal Mcintyre” in the form of a reality show without his consent.

Five’s comments

In summary and in response to the comments made by Mr Hall, Five said that:

a) Five made no further relevant comments on this point.

b) Mr Hall asserted that he did not seek to explain his actions in his emails to Five because he felt they would not have been reflected in the programme in a manner which was fair. However, if it were the case that Mr Hall had felt that he had been unjustly treated by the courts or the police or that he had a legitimate reason for his non-attendance at court, Five questioned the reason why he did not raise this at any time following the operation? Five said that Mr Hall had merely complained about being included in the operation and being filmed and then sought not to have his identity shown in the final programme. Five said that it appeared that Mr Hall did not dispute that the police had the right to arrest him, but that he did not want to be identified in the programme.

Five said that Mr Hall only attended court two days before transmission of the programme. His actions were duly noted and recognised in the programme in the interests of fairness and factual accuracy. Five said that the tone of the programme was appropriate to the coverage of the operation and that there was no implication that Mr Hall was a serious criminal – the nature of his conviction was made clear and the fact that he had not fulfilled his obligation to attend court.

c) Five made no further relevant comments on this point.

d) Five made no further relevant comments on these points.

e) Five said that it was self evident that anyone detained in the operation would not have consented to their inclusion in the programme. It said that in this case, the issue under consideration and the detention of those who had failed to appear at court and had effectively decided to ‘opt out’ of the justice system was a matter of public interest and it was on this basis that the operation was filmed and the programme was broadcast.

Five said that the means of obtaining material was proportionate in all the circumstances given the nature of the operation and the programme. The use of some surreptitious filming was clearly necessary in this case in order not to give rise to any suspicion so that arrest warrants could be carried out by the police. The story was in the public interest and covert filming was necessary to the credibility and authenticity of the programme.

In conclusion, Five said that in all the circumstances, the programme and its content did not breach the Broadcasting Code on fairness and privacy particularly when considered in the context of the fact that Mr Hall repeatedly failed to attend court when directed and took no steps to give himself up voluntarily preferring to argue that it was for the police to come to his home and arrest him. In the light of his actions and attitude any alleged infringement of his privacy was warranted and in the circumstances and proportionate.

Decision

Ofcom’s statutory duties include the application, in the case of all television and radio services, of standards which provide adequate protection to members of the public and all other persons from unfair treatment in programmes, and from unwarranted infringement of privacy in the making and broadcast of programmes, included in such services.

In carrying out its duties, Ofcom has regard to the need to secure that the application of these standards is in a manner that best guarantees an appropriate level of freedom of expression. Ofcom is also obliged to have regard in all cases, to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.

This case was considered by Ofcom’s Executive Fairness Group. Ofcom considered the complaint and the broadcaster’s response, together with supporting material and a recording and transcript of the programme as broadcast. It also watched unedited footage of Mr Hall at the event. In its considerations, Ofcom took account of Ofcom’s Broadcasting Code (“the Code”).

Fairness

In deciding whether or not these individual heads of complaint were unfair, Ofcom considered Rule 7.1 of the Code which states that broadcasters must avoid unjust or unfair treatment of individuals or organisations in programmes.

In the circumstances of this case, Ofcom found the following:

a) Ofcom first considered Mr Hall’s complaint that the programme stated wrongly that he was “threatened with jail” and that he had spent the night in jail after the event.

In addition to Rule 7.1, Ofcom also took into account Practice 7.9 of the Code which states that the broadcaster should take reasonable care before broadcasting a factual programme to satisfy themselves that the material facts have not been presented, disregarded or omitted in any way that is unfair to an individual or organisation.

Ofcom noted that the programme stated that Mr Hall had failed to appear in court after being arrested at the event and that a warrant had been issued for his arrest. It also noted Five’s assertion that after the commentary was recorded and two days before transmission of the programme, Mr Hall had handed himself over to the police and had been sentenced the next day. Ofcom noted the continuity announcement at the end of the programme:

“Well he needed extra time but to his credit Gary did hand himself in to the courts just two days ago. He was ordered to pay £475 in fines for his motoring offences and for not turning up previously. He was also given a six month driving ban. Plus an extra night in custody”.

Ofcom noted that this information had been provided to the programme makers by the police and the night Mr Hall was remanded in custody was the time between him handing himself over to the police and his appearance in court to be sentenced the next day.

Having considered the comments made in the programme, Ofcom was satisfied that the programme did not state, as Mr Hall claims, that he was “threatened with jail” and that he had spent a night in jail after being arrested at the event. Ofcom considered that the only reference in the programme to Mr Hall being remanded in custody after arrest was made at the end of the programme and set out clearly in the context of him voluntarily handing himself over to the police. This, in Ofcom’s view, was presented in the programme in a fair and accurate way. Taking these factors into account, Ofcom was not persuaded that the continuity announcement was likely to materially affect viewers’ understanding of Mr Hall, or the circumstances surrounding his arrest, or being remanded in custody and subsequent sentencing by the court in a way that was unfair to him.

b) Ofcom then went on to consider Mr Hall’s complaint that the programme portrayed him as a man “out to do wrong” without giving him the opportunity to respond to the allegations made about him.

In its consideration of this element of complaint, Ofcom took particular account of Practice 7.11 of the Code which states that if a programme alleges wrongdoing or incompetence or makes other significant allegations, those concerned should normally be given an appropriate and timely opportunity to respond. Also, according to practice 7.13, where it is appropriate to represent the views of a person or organisation that is not participating in the programme, this must be done in a fair manner.

In these circumstances, Ofcom first considers whether or not the programme has alleged wrongdoing, incompetence or made significant allegations about Mr Hall that would require an opportunity to respond. If the programme did so, then Ofcom considers whether the complainant was afforded an appropriate opportunity to respond to those allegations.

In this case, and having examined the contents of the programme, it was Ofcom’s view, that the programme simply presented Mr Hall as one of a number of people who repeatedly failed to attend court for sentencing. As noted above at head (a) Ofcom was satisfied that the programme presented the circumstances of his arrest, conviction and subsequent sentencing in a fair and accurate manner. Importantly, the programme did not appear to make any allegations that went beyond what had already been established by the courts. Ofcom considered that normally convicted criminals have no legitimate expectation of an opportunity to respond to claims that have already been presented to court and proven to the satisfaction of the court.

In these circumstances, Ofcom considered that it was not incumbent upon Five, in the interest of fairness, to offer Mr Hall an opportunity to respond to the comments included in the programme.

In any event, Ofcom noted that on 30 October 2005 , Mr Hall had emailed Five to complain about the event and stated that he would not give his permission for the footage taken of him to be used in the programme. After this first contact, a number of emails were exchanged between Mr Hall and Five (both before and after the broadcast of the programme). Throughout this email correspondence, Mr Hall did not appear to offer an explanation for his convictions or as to why he repeatedly failed to attend court to be sentenced. Nor did Mr Hall appear to have offered any explanation for his repeated failure to attend court when he was detained at the event. Ofcom noted Five’s assertion that had Mr Hall put forward an explanation for his conduct, it would have been considered for inclusion in the programme. Ofcom recognised that Mr Hall did not consider it appropriate to explain his conduct to Five as her considered the matter to be between him, the police and the courts.

In these circumstances, Ofcom was satisfied that it had been open to Mr Hall to have given some explanation in response to the allegations being made against him. He chose not to do so.

Taking into account all the factors detailed above, Ofcom concluded that there was no unfairness to Mr Hall in this respect.

c) Ofcom considered Mr Hall’s complaint that the programme connected him, wrongly, with the death of another man’s son.

In considering this element of Mr Hall’s complaint, Ofcom had particular regard to Practice 7.9 of the Code.

Ofcom noted the programme’s commentary:

“Gary may not have harmed anyone, but police believe that illegal drivers are five times more likely to be involved in a serious accident. Sometimes the consequences of those actions end in tragedy”.

It also noted that immediately after this commentary line, the focus of the programme shifted from Mr Hall to a father whose son had been killed while crossing a road by an uninsured and unlicensed motorist.

Ofcom was satisfied that the commentary did not link Mr Hall to any fatality or road accident. In fact, the programme made it clear that Mr Hall had not “harmed anyone”. The comments, in connection to the possible fatal consequences of illegal driving, clearly related to an entirely different story and would not have materially affect viewers’ understanding of Mr Hall and the motoring offences that he had been convicted of. In the circumstances, Ofcom found no unfairness to Mr Hall in this respect.

d) Mr Hall complained that the footage of him was edited unfairly. He highlighted five specific issues which are dealt with below. In considering this element of Mr Hall’s complaint, Ofcom had particular regard to Practice 7.6 of the Code which states that when a programme is edited, contributions should be represented fairly and Practice 7.9 of the Code.

i) Ofcom considered Mr Hall’s complaint that on arrival at the event, he was promptly put into the prize car and given a beer to drink. Mr Hall claims that he responded, “this doesn’t look good”, and so handed it back, but that this was not shown in the programme.

By examining the unedited footage of the event that Ofcom requested and the programme itself, Ofcom noted that there was no evidence to support Mr Hall’s assertion that he had handed back his bottle of beer or had made the comment he claimed he had. In fact, it was clear to Ofcom from examining the programme as broadcast that Mr Hall had being holding a bottle of beer and was asked to put it down when he moved on through the event to the penalty shoot out area. In these circumstances, Ofcom was satisfied that the footage shown in the programme had been presented fairly in the programme and that no unfairness had resulted to Mr Hall in this respect.

ii) Ofcom considered Mr Hall’s complaint that he was shown a video of someone who supposedly looked like David Beckham and was asked if he thought that it looked like Beckham. To be polite, Mr Hall said that he answered “a bit”.

Ofcom noted that Mr Hall was shown in the programme to say “It’s not Beckham” when the video of a David Beckham impersonator was played to him. In Ofcom’s view, the inclusion of this comment in the programme was unlikely to lead viewer to believe that Mr Hall had been duped into thinking that the impersonator was the real David Beckham. In these circumstances, Ofcom was satisfied that the programme makers fairly represented Mr Hall’s reaction to the video and his belief that it was an impersonator and not the real David Beckham. Ofcom found no unfairness to Mr Hall in this respect.

iii) Ofcom considered Mr Hall’s complaint that he was confronted by 30 police officers who arrested him for failing to appear at court.

By examining the unedited footage of the event Ofcom noted that there were three police officers present at the time of Mr Hall’s arrest. This was represented in the programme in a straightforward and factual manner. In these circumstances, Ofcom was satisfied that this element of the programme had not been edited unfairly and Ofcom, therefore, found no unfairness in the programme to Mr Hall in this respect.

iv) Ofcom considered Mr Hall’s complaint that there was a Sven-Goran Eriksson impersonator at the event who was portrayed in the programme as “the real one”.

Again, having examined the unedited footage taken at the event and the programme itself, Ofcom was satisfied that there was nothing to suggest to viewers that Mr Hall had believed that it was the real Sven-Goran Eriksson rather than an impersonator. Ofcom concluded that the footage had been presented in a fair manner and that there was no unfairness to Mr Hall in including this footage in the programme.

v) Ofcom considered Mr Hall’s complaint that the programme makers blatantly tried to portray him as “some dumb down an’ [sic] out”. Mr Hall said that the footage was edited to make it seem as if he was. Ofcom noted Five’s response to Mr Hall’s complaint that the programme had portrayed Mr Hall as nothing more than a person who had repeatedly failed to appear at court for sentencing after being convicted for a number of offences and that he was arrested at an event that had been organised by the police in order to apprehend Mr Hall and others like him. Ofcom was satisfied that the programme presented this fairly in the programme and that there was no suggestion, in Ofcom’s view, in the programme that Mr Hall was portrayed as “some down an [sic] out”. In these circumstances, Ofcom found no unfairness to Mr Hall in this respect.

Privacy

e) Ofcom considered Mr Hall’s complaint that his privacy was unwarrantably infringed in both the making and broadcast of the programme in that: the programme makers came to his home on a number of occasions; that he was “entrapped” into taking part in the programme and that his offences did not warrant his inclusion in it and that he did not sign a release form or give his permission for footage of him to appear in the programme.

In Ofcom’s view, the line to be drawn between the public’s right to information and the citizen’s right to privacy can sometimes be a fine one. When considering and adjudicating on a complaint of unwarranted infringement of privacy, Ofcom first determines whether in its view the complainant had a reasonable expectation of privacy in the circumstances. This may depend simply on the nature of the information or image itself or on a combination of factors. Ofcom then addresses itself to two distinct questions: First, has there been an infringement of privacy? Second, if so, was it warranted? (Rule 8.1 of the Code).

In addition to Rule 8.1 of the Code referred to above, Ofcom also had regard to Practice 8.5 of the Code which states that any infringement of privacy in the making of a programme should be with the person’s and/or organisation’s consent or be otherwise warranted and Practice 8.6 which states that if a broadcast of a programme would infringe the privacy of a person or organisation, consent should be obtained before the relevant material is broadcast, unless the infringement of privacy is warranted .

Ofcom also had regard to Practice 8.9 which states that the means of obtaining material must be proportionate in all the circumstances and in particular to the subject matter of the programme and also to.

Mr Hall’s home

Having examined the programme and the unedited footage, Ofcom was satisfied that Mr Hall had not been filmed by the programme makers being picked up at his house by the taxi to take him to the event.

Further, it also noted that Mr Hall failed to provide evidence to substantiate his claim that the programme makers had visited his house on a number of occasions.

In the circumstances, Ofcom was satisfied that Mr Hall’s privacy was neither infringed in the making or the broadcast of the programme regarding his being filmed at his home.

The Event

Ofcom examined the unedited footage that was taken of Mr Hall arriving at the event and then at the event itself, which was held on private property. Ofcom noted that the footage of Mr Hall was taken surreptitiously by a number of hidden cameras and Mr Hall was not made aware by the programme makers until after he was identified and arrested by the police. Mr Hall has not specifically made a complaint that he was secretly filmed, Ofcom therefore only notes the reasons given by Five for filming the footage and including it in the programme.

Before considering whether or not Mr Hall’s privacy was infringed, Ofcom first considered whether or not he had a legitimate expectation of privacy in the circumstances.

Ofcom considered that Mr Hall had a heightened expectation of privacy when attending the event that had been purposefully set up by the police as part of an operation to execute outstanding arrest warrants, especially when the event was being secretly filmed and held on private property. In circumstances where a person is filmed committing a criminal offence, Ofcom appreciates that a person’s expectation of privacy is diminished by their actions. However, in Mr Hall’s case, although he was wanted by the police for repeated failure to attend court for sentencing, he was not actually engaged in any criminal activity or wrongdoing. In the particular circumstances of this case, Ofcom took the view that Mr Hall had a legitimate expectation of privacy and could have reasonably assumed that he would not be filmed surreptitiously and would not have expected this footage to be shown to a wider audience.

Ofcom then went on to consider whether or not this legitimate expectation of privacy was infringed in both the making and in the programme as broadcast. Ofcom considered that: Mr Hall was filmed covertly while at the event until his arrest; that this filming was conducted surreptitiously without his knowledge or consent; that at the time he had not been engaged in any wrongdoing or criminal activity; and that no steps were taken by the programme makers to obscur his identity. Also, Ofcom also took into account of the fact that Mr Hall did not provide Ofcom with any evidence to support his claim that Five had promised him that his identity would be obscured in the programme. Taking these factors into account, Ofcom was satisfied that the surreptitious filming of Mr Hall at the event the the subsequent broadcast of that footage in the programme did infringe Mr Hall’s privacy.

Ofcom noted that the manner in which the operation was conducted was a matter for the police. It noted that the question of whether or not Mr Hall’s offences warranted the approach taken by the police was also a matter for the police and not a consideration for Ofcom.

Ofcom went on to consider whether or not the infringement of Mr Hall’s privacy outlined above was warranted in the circumstances. In Ofcom’s view, it was clear that there was a strong public interest justification to filming the police operation and what happened to Mr Hall at the event. Ofcom took the view that the means the police are required to enforce outstanding arrest warrants was a matter of legitimate public interest and Mr Hall’s breach of his obligation to attend court for sentencing meant that it was legitimate for the programme makers to include footage of him (and others featured in the programme) at the event to highlight this issue and the wider impact of criminal behaviour. In these circumstances, and for the reasons given above, Ofcom considered that the programme makers were justified in: filming Mr Hall at the event; including that footage in the programme; and, in identifying Mr Hall.

Ofcom concluded that Mr Hall’s privacy had not been unwarrantably infringed in either the making or broadcast of the programme.

Accordingly, Mr Hall’s complaint of unfair treatment and unwarranted infringement of privacy in both the making and broadcast of the programme was not upheld.

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We all know that the commercial radio industry has been facing tough conditions over the past couple of years and recent results, such as GCap’s last week, serve to confirm that. Radio advertising has stalled as advertisers switch to the internet and other media. While there are encouraging signs from some groups, with Chrysalis predicting double digit growth for later this year and TLRC anticipating its May results will show the highest monthly revenues for two years, things remain tough. 40% of stations lose money and the smallest stations are suffering the most. The bigger groups are still profitable but much less so than they were.

At the same time digital platforms are taking an increasing share of listening. In our consultation we reported that 14% of listening is via digital platforms. Some estimates suggest that figure may now be up to 20%. In ten years time, we predict that figure could be as high as 90%. That brings challenges to existing analogue stations in terms of increased competition and makes things particularly hard for those stations not broadcasting on digital platforms.

Those two trends suggest that the existing pattern and number of local analogue stations may not be sustainable in the long term.

The question is whether there are things that Ofcom can do in terms of reducing regulation that would ensure that local services continue to survive and thrive and to be able to provide local programming in the interests of citizens and consumers. In some cases that may mean accepting reduced localness provision rather than having no localness provision at all.

We have come up with a number of proposals for easing the burden on radio stations but as background to considering those proposals it is important to note three things:

First, the majority of commercial stations in this country have been licensed to be local stations – that was a deliberate act of policy by Government which has been reinforced by successive Acts of Parliament. And of course it was the basis on which every existing local station applied for and won its licence. Indeed it was only in 2003 that Parliament strengthened its desire for local radio by imposing a new duty on Ofcom to ensure that local stations broadcast an appropriate amount of local material with a suitable proportion of it locally made. Parliament also required Ofcom to publish guidance as to what localness means. That guidance is something we consulted on and subsequently published. Ofcom’s role is to look after the interests of consumers and citizens. That means ensuring that local programming is provided, as well as local news which is important in terms of supporting local democracy for listeners both as consumers and citizens. We take our duties regarding local programming very seriously.

Secondly, while radio group owners may argue that the provision of local programming is key to their success, it will always be in their interests to do more networking if they are allowed – even if audiences fall when they reduce localness, that loss of revenues is more than offset by a decrease in costs so overall profits are up – and at end of day these are commercial businesses usually driven by shareholder pressure and the need to maximise shareholder returns.

Thirdly, it is important to stress that regulation is only one element in the mix – the success or otherwise of a station depends on so many things – good management, creativity, investment in marketing and a good sales force. Regulation is only one element in the mix and probably not the most important, but relaxing regulation in some areas may help and we will do what we can.

So the new framework we have developed aims to take account of the transition to digital and the challenges faced; to be proportionate, consistent across different broadcast platforms (as far as makes sense) and targeted at cases where action is needed; and to allow Ofcom to secure public policy objectives, which not only relate to localness but also require us to ensure there is a wide range of radio services, catering for different tastes and interests.

There is still a lot of uncertainty about the future, but we firmly expect DAB to form the backbone of radio provision in 10-15 years time. We see the landscape then consisting of a strong BBC and a wide range of commercial and community stations:

National commercial stations offering a wide range of programmes to cater for different tastes and interests – The main role for the regulator there will be to ensure that a reasonable diversity of national stations is maintained.

Local stations of city or county size in every part of the country. The main role of the regulator as regards those stations will be to secure the provision of local programming, locally made .

Smaller local stations may survive, we welcome that, and will be required to provide some local programming but there will be no guarantee of a station of this size in every part of UK or of the continued existence of such smaller stations where they exist today.

Finally, we hope to see a wide range of Community radio stations, a vailable to any community that wants and can sustain a station. These stations will be operated on a not for profit basis and will be required to provide social gain.

And so to the specific proposals:

The first main proposal relates to content regulation.

Formats are the way we ensure we meet our statutory duty to ensure diversity of services and are key in licence award decisions. DAB Formats are fairly brief, consisting of just a couple of lines outlining the service. Analogue Formats on the other hand can be extremely detailed. To take an example, the Format of Splash FM in Worthing has a character of service which requires it to be “a locally-focused music and information station for Worthing and the immediately surrounding area.” The detail of its Format goes on to require speech to make up at least 20% of its output including travel news, weather / tidal reports whats-ons, a community notice-board, a recruitment feature, a weekly crime prevention feature, seasonal tourist information, hourly local news bulletins between 6.30 am and 6pm with an extended 10 minute local bulletin in drive-time. Its music must consist of popular hits from the last four decades, although a slight bias towards music from the last two decades is permitted, but current and recent chart music must not account for more than 20% of total music output during daytime.

Of course the station may want to do all of those things anyway. The question is whether they should be required to by regulation. While the majority of listening is to analogue radio, it may not be appropriate to remove these obligations yet, but as digital listening grows, and the average listener has many more stations to choose from, this sort of detailed regulation appears anachronistic. So we propose to simplify Formats to remove much of the detail.

On localness, many of the smallest stations have the highest local programming obligations. Splash FM for example has to produce 24 hours a day of local programming on weekdays and 18 hours a day at weekends, for a population of just 113,000 people.

As I said earlier, some people argue that stations should be allowed to decide for themselves how much local output to produce and that they would “do localness” anyway but we believe that Ofcom would be failing in its duties if it was not to protect local programming in the interests of citizens and consumers. Evidence from elsewhere suggests that when such requirements are removed, localness disappears.

Some people also argue that local material need not be locally made or that local news and traffic bulletins are sufficient to ensure localness. We do not accept this and neither does the audience based on our research. We found that listeners to local stations were looking for good presenters who could demonstrate a good sense of humour and genuine interest and involvement in the local area. T here was a strong preference for local presenters over national presenters on local radio. Focus group participants talked about local accents and genuine knowledge about an area adding authenticity and sincerity. Audiences tell us that local presenters are a key element of localness and a good way of providing an ‘emotional connection’.

Nevertheless the local programming obligations on some stations, particularly the smaller ones, which tend to have the greatest obligations, may be too high so we have considered how far to reduce those localness obligations.

Our research suggests that listeners expect their local stations to be local at breakfast time and to a lesser extent drive-time, while a significantly smaller number expect local programming in the evening and overnight.

So our proposals are that the smallest stations should have to be local for at least four hours a day, medium sized stations for eight hours a day weekdays and four hours a day at weekends, while the largest stations should be local for 13 hours a day weekdays and six at weekends. Localness should include some peak-time requirements.

For AM stations, we are suggesting four hours a day of localness may be the right minimum requirement – no matter what the size of the station. We suggested this level because although we recognise that AM listening is declining generally, in some parts of the UK, a local AM service is all there is and in other areas, AM local stations remain very popular, particularly in Scotland. We need to arrive at the right balance of regulation for these stations.

So, taken together these proposals would mean that Splash FM’s Format would simply become “a locally-focused music and information station for Worthing and the immediately surrounding area”. Its requirements to produce local programmes would be reduced from 24 hours a day to just eight hours a day during daytime weekdays with at least four of those hours in peak-time and four hours a day in daytime at weekends. Of course, it would be free to do more if it wished.

For a larger station like TFM in Teesside, its Format would become simply “A contemporary and chart music and information station for 15-44 year olds on Teesside” while its local hours requirement would be reduced from 16 hours a day to 13 hours, allowing it to do carry some network programming in daytime but outside peak.

We have suggested that these changes should be brought in when digital listening accounts for 33% of all listening, but we are open to other suggestions.

Ofcom has specifically allocated spectrum to provide local digital stations in every part of the UK . Our proposal concerning localness on digital stations appears to have caused some confusion. Let me clarify. We have suggested that Government may wish to change the legislation to allow Ofcom to look across analogue and digital platforms when considering localness, rather than look only at analogue stations as now. The aim of this suggestion is not to require any new local programming on DAB beyond what is already provided (most of which is a simulcast of analogue stations), but simply to ensure that, if and when analogue radio gets switched off, there is a way to protect the provision of local stations like BRMB or Radio City in a digital world. It is nothing more than that.

The second major proposal relates to the ownership rules for radio.

The ownership rules are governed by legislation and any change to the rules would require a change to the legislation. That is a matter for Government and Parliament to consider when the time is right. We concur with Parliament’s view that plurality of provision of local radio remains important. But as digital listening increases, separate analogue and digital rules may no longer make sense. We suggest that the existing separate points rules for analogue station ownership and the digital station ownership rules are too complex and too restrictive and that they should be replaced by a combined, simplified system based on local DAB areas. Similarly we suggest that the multiplex ownership rules could be simplified and that cross-media ownership rules should be platform neutral as far as radio is concerned.

The third and fourth major proposals regard the migration to digital radio.

Ofcom believes that digital radio is the future for the vast majority of radio listening and that the cornerstone of that digital listening will be DAB. We want to encourage the growth of DAB, as it offers a number of benefits to listeners in terms of choice, portability and sound quality, as reported by listeners themselves in Ofcom’s research. DAB take-up is now growing and we want to encourage that further. That is why we have advertised a second national commercial DAB multiplex which we will award in July and which we hope will help to give DAB a further boost. This will bring in new stations and new marketing effort to help support all of the hard work and investment that has already gone into growing DAB, led in the commercial sector by GCap and Ralph Bernard’s personal commitment.

We know that the spectrum currently used by analogue radio could be used for other things – even if one of those things is a different set of analogue stations. It would be fantastic if we had a clear view of the future and could announce now that we knew when the vast majority of listening would be on digital and we could switch-off much of analogue radio. Unfortunately life isn’t that simple.

Digital radio is still only in a minority of homes and is not fitted as standard in most cars; coverage is not yet complete – particularly for local stations. Listening to digital, while growing rapidly is still significantly less than analogue radio.

But we do need to act now to allow us the flexibility to do something different with the analogue spectrum when the time is right. The main obstacles to that concern the licensing process which ties up spectrum for considerable lengths of time on a rolling licence by licence basis. There is little flexibility under the current legislation to change that and any change is obviously a matter for Government and Parliament to consider as they see fit, but we suggest that the licensing regime should be changed to remove automatic licence renewals for analogue stations also offering a DAB service, and that all existing licences be extended indefinitely but have a termination clause written into them.

In addition we argue that Ofcom should have the flexibility to licence any new stations in a platform and technology neutral way to allow the development of technologies like DRM which could be an important complement to DAB in allowing full digital radio coverage.

We also suggest that reviews of both AM and FM should be carried out which would consider fully the case for analogue switch off and the dates for such an outcome. Those reviews would need to take into account a whole range of factors and undertake a full cost-benefit analysis. It may be that in advance of those reviews

there are things we can all work on together – regulator, broadcasters, and government – to determine the sorts of things that would need to be taken into account in such a review.

The final proposal relates to community radio.

I do not propose to go into the detail of our proposals now, as that is not what today’s debate is about, but I should just register that we believe that community radio will be an important new force in radio; that we believe it should remain not for profit and be based upon the provision of social gain; but that we believe some of the regulation around community radio, in terms of the selection criteria and funding and ownership requirements should be relaxed.

So, to sum up, we believe that, taken together, our proposals do mean a dramatic reduction in the level of regulation across the analogue commercial radio sector as a whole, with the greatest benefits accruing to those who arguably need the most help at the smallest end of the scale. We also believe we need to start preparing now for the potential of freeing up analogue spectrum and we look forward to working with you all to begin that debate.

Peter Davies

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Channel Four Television Corporation in respect of its service Channel 4.

For

Breaches of the Ofcom Broadcasting Code:

• Rule 2.3 – Broadcasters must when applying generally accepted standards ensure that material which may cause offence is justified by the context; and
• Rule 1.3 – Children must also be protected by appropriate scheduling from unsuitable material.

On

15, 17, 18, 19 January 2007

Decision

To direct Channel Four (and S4C) to broadcast a statement of Ofcom’s findings in a form determined by Ofcom immediately before the start of the broadcast of the first programme of the eighth series of Big Brother on Channel 4; immediately before the start of the broadcast of the first re-versioned programme of the eighth series of Big Brother on Channel 4; and immediately before the start of the broadcast of the programme in which the first eviction from the eighth series of Big Brother occurs on Channel 4.

Summary

1.1 On the basis detailed in the Decision, under powers delegated from the Ofcom Board to Ofcom’s Content Sanctions Committee (“the Committee”), the Committee has decided to impose a statutory sanction on Channel Four (and S4C) in light of the serious nature of the failure by Channel Four to ensure compliance with Ofcom’s Broadcasting Code.

1.2 This adjudication under the Broadcasting Code relates to the fifth series of Celebrity Big Brother. (Celebrity) Big Brother is produced by Brighter Pictures, part of Endemol UK plc (“Brighter Pictures”), and is broadcast by the Channel Four Television Corporation (“Channel Four” or “the broadcaster”) on its Channel 4 service. The Channel Four Big Brother series are also broadcast by S4C on its service. It started on 3 January 2007 and ran 26 days until 28 January 2007.

1.3 Big Brother is a reality based television show where celebrity contestants are confined together in a controlled environment (“the House”), for a set amount of time. Every room (with the exception of the toilets and shower rooms) and every contestant is recorded by cameras and microphones. Recording of all actions and conversations occurs 24 hours a day. Each week, contestants are nominated for eviction from the House. The ultimate decision as to who is to be evicted is then left to the public by means of voting via telephone or text. The last housemate left at the end of the series is the winner of the show.

1.4 As the fifth series progressed, disagreements began to develop between some of the housemates, in particular, between Shilpa Shetty on the one hand and Jade Goody, Jo O’Meara and Danielle Lloyd on the other. Viewers, and others who were aware of the events in the House, became increasingly concerned that Shilpa Shetty was being subjected to bullying, some alleging that the bullying was racist. Ofcom received just over 44,500 complaints about Celebrity Big Brother 2007.

1.5 Under the Communications Act 2003, Ofcom has a statutory duty to set standards for the content of broadcast television programmes in a Code with which broadcasters must comply. Ofcom must ensure broadcasters comply with the Code and perform its duties in light of the European Convention of Human Rights which provides for the right to freedom of expression. Ofcom must exercise its duties in light of these rights and not interfere with the exercise of these rights in broadcast services unless it is satisfied that the restrictions it seeks to apply are required by law and necessary to achieve a legitimate aim.

1.6 In setting standards for the content of broadcast television programmes, Ofcom requires broadcasters to ensure that “generally accepted standards” are applied to the content of television programmes so as to provide adequate protection from the inclusion of offensive or harmful material. Under Ofcom’s Broadcasting Code (“the Code”), broadcasters are required in applying these generally accepted standards to ensure that material which may cause offence is justified by the context. Context includes such matters as the editorial content of the programme, the service on which it is broadcast and the likely expectations of the audience.

1.7 In making its adjudication, Ofcom has taken account of representations made by Channel Four.

1.8 Channel Four is a public service broadcaster with a unique statutory remit to provide a broad range of high quality and diverse programming which, in particular: demonstrates innovation, experiment and creativity in the form and content of programmes; appeals to the tastes and interests of a culturally diverse society; makes significant contribution to meeting the need for the licensed public service channels to include programmes of an educational nature and other programmes of educative value; and exhibits a distinctive character.

1.9 Channel Four’s representations are fully considered and addressed in this adjudication below. In summary, Channel Four submitted that: the incidents broadcast were responsibly handled; appropriately scheduled and edited and justified by the context being within the expectations of the Big Brother audience. It maintained that the series had been in keeping with its statutory remit. It accepted and regretted that many viewers had been offended but submitted that important freedom of expression issues were at stake. Channel Four considered the debate stimulated by what occurred had been of “undeniable public value” regardless of the fact that it had not set out to create a national debate about racism. It believed that the broadcasts had been fully in compliance with the Code.

1.10 In considering whether there had been breaches of the Code, Ofcom recognises that material that is potentially offensive or harmful may be properly broadcast in compliance with the Code so long as its inclusion is justified by the context so as to provide adequate protection to members of the public. The Code does not prohibit the broadcast of potentially offensive or harmful material in any circumstances. What is essential for compliance with the Code is the way in which such material is transmitted by the broadcaster. Accordingly, in considering whether Channel Four has breached the Code in this instance, Ofcom’s starting point is not that material which is potentially offensive or harmful has been transmitted, but whether such material has been appropriately handled by Channel Four.

1.11 Ofcom has considered whether a number of events in the House were in compliance with the Broadcasting Code. It has found that there were three events which were broadcast during the series which were in breach of the Code (see paragraphs 8.1 – 8.38 below for a full explanation of the breach findings). Ofcom has found that in relation to the following three incidents, Channel Four failed to appropriately handle the material so as to adequately protect members of the public from offensive material:

• Remarks about Cooking in India (transmitted 15 January 2007)
• “Fuck off home” comment (transmitted 17 January 2007)
• “Shilpa Poppadom” comment (transmitted 18 and 19 January 2007)

1.12 Ofcom has also found that in relation to a number of other incidents, Channel Four was either not in breach of the Code and on one occasion, Ofcom has found that the issue was resolved. See paragraphs 6.1 to 7.12 for Ofcom’s reasoning on these incidents.

1.13 Big Brother is an entertainment programme and viewers therefore perceive what happens in the House as “entertainment”, they also view it as “reality” i.e. they view the events as real events happening to real people. This means that the audience can genuinely become concerned for the welfare of housemates, but in the knowledge and expectation that any serious problematic or anti-social behaviour will be appropriately dealt with. This has become one of the generally accepted standards of Big Brother.

1.14 Channel Four in the Big Brother programme format has established various editorial mechanisms through which inappropriate behaviour in the House can be challenged. For instance, through discussion in the Diary Room, Big Brother can confront and reprimand housemates about their behaviour thereby acting as an important arbiter to what the public may perceive to be offensive language or behaviour. Reactions by housemates, Big Brother interventions and the Diary Room are all part of the well understood architecture of the programme and the context within which Channel Four is able to appropriately broadcast potentially offensive material.

1.15 However, in relation to the incidents outlined in 1.11 above Channel Four failed adequately to apply generally accepted standards by justifying the inclusion of the offensive material by its context. It is Ofcom’s view that when these three incidents were broadcast, Channel Four failed sufficiently to address the potential for offence or left this behaviour unchallenged. This resulted in offence being caused to a very large number of viewers.

1.16 Exceptionally, in the circumstances of this case, Ofcom judged that the relationship between the broadcast incidents and Channel Four’s overall awareness of the events within the House was relevant in terms of compliance. We therefore asked Channel Four to submit any relevant untransmitted material. In deciding whether to impose a sanction, Ofcom has taken into account, in addition to the incidents broadcast, this footage from the House which was not transmitted.

1.17 The events from this untransmitted footage occurred before the broadcast of two of the incidents (one of which was broadcast twice) which Ofcom has found to be in breach of the Code. This material included conversations between housemates which were instructive of the relationships, tensions and attitudes in the House at this particular time and were logged as “racist” at the time by Brighter Pictures, the producer.

1.18 Channel Four was not aware of this material at the relevant time and therefore was not able to take account of it when making its editorial decisions as to how to handle the broadcast of these two incidents. Channel Four has submitted that this was due to a breakdown in communications between itself and Brighter Pictures, which the broadcaster considers resulted from a failure by the producer to follow established procedures and therefore draw the material to Channel Four’s immediate attention. Whether this was the case or not, this does not excuse Channel Four from its obligations under its licence to comply with the Code. Ofcom considers that Channel Four’s compliance processes were clearly not adequate in light of this failure and that Channel Four should have been more proactive at this time in ensuring that it was aware of all relevant material.

1.19 Ofcom has found that there was a serious failure within Channel 4’s compliance procedures for the series which meant that it was not fully aware of the events in the House so that it could handle potentially offensive material through its editorial mechanisms. In our view, if Channel 4 had seen this material, at the time it was recorded, it would have handled the unfolding situation in the House very differently in order to ensure compliance with the Code.

1.20 Ofcom also considers that Channel Four failed in its handling of the incidents broadcast to take account of the cumulative effect of the events in the House. The audience’s understanding of the events in the House and, in particular, the alleged racist bullying, was changing as the series developed and therefore comments which may in other circumstances have been interpreted as “borderline” in terms of offence became much more offensive given what was happening in the House, as well as beyond the House, in the outside world.

1.21 Ofcom considers that the breaches by Channel Four of the Broadcasting Code when taken together show a serious failure to apply generally accepted standards.

1.22 In light of Ofcom’s findings and having taken into account the representations made by Channel Four, and all the evidence before it, the Committee has concluded that it should impose a statutory sanction on Channel Four (and S4C).

1.23 The Committee has taken into account in its decision as to the appropriate sanction to be applied both the fact that Channel Four acted promptly as soon as it became aware of the untransmitted material in exercising control over subsequent events in the House; and has carried out a full review of its compliance programme and put in place more comprehensive compliance procedures and guidelines.

1.24 The Committee has also taken into account the fact that the breaches did not result from deliberate, reckless or grossly negligent actions by Channel Four but rather represents a serious error of judgment in relation to material that requires the most careful handling.

1.25 The Committee has a range of statutory sanctions available to it. In this case the Committee considers that the most appropriate sanction is to require Channel Four (and S4C) to broadcast a statement of Ofcom’s findings in a form determined by Ofcom. Furthermore, the Committee decided that this should be broadcast on three separate occasions when it would reach the highest number of viewers. That is, at the start of the first programme of the new series of Big Brother and at the start of its re-versioned programme the following morning and also at the start of the first eviction show.

1.26 The Committee would take very seriously any future failure of compliance leading to a similar situation as that which the Committee has dealt with in this case.

The Full OFCOM Decision

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Interference

The research found that 30% of all UK radio listeners say they have experienced some form of interference to their service. Of those, 14% believe the interference was caused by illegal broadcasters. In London, these figures rise to 40% and 27% respectively.

Almost two-thirds (64%) of all UK radio listeners turn off their radios or switch to a different station when they encounter interference. Some 2% of listeners who experience radio interference say they complain about it. This figure increases to 8% when listeners believe the interference is caused by illegal broadcasters.

The research found that six out of ten London adults surveyed were concerned when told that illegal broadcasting can cause interference and disruption to the communication systems used by safety-of-life services.

Listening

However, the report also shows that some illegal stations attract a substantial audience, with 16% of adults in Greater London regularly listening to them. Ofcom’s research shows that 25% of adults in Hackney, Haringey and Lambeth regularly tune in. Some 62% of listeners in these boroughs say that illegal broadcasters offer something different from licensed commercial radio and 40% say that illegal radio is community focused.

Under the Wireless Telegraphy Act 2006, it is illegal to broadcast without a licence and under the Communications Act 2003, Ofcom is responsible for keeping spectrum free from interference. Ofcom takes illegal stations off the air by raiding studios and seizing and disconnecting transmitters and aerials. In 2006, Ofcom carried out 1,085 such operations and some 63 people were convicted of offences related to illegal broadcasting.

Illegal broadcasters transmit in the FM band. These broadcasts cause interference to the communications systems of the safety-of-life services, including the fire brigade and air traffic control, as well as legitimate licensed radio stations, such as commercial and BBC radio. There are also links between some illegal broadcasters and wider crime; Ofcom raids on studios used by illegal broadcasters have uncovered drugs and weapons.

Other key findings from today’s report include:

• listeners to illegal broadcasters are made up of all age and social groups; however, 15-to-24 year-olds and C1C2 socio-economic groups are most likely to tune in;
• of those listening in Hackney, Haringey and Lambeth, 55% are male and 45% are female;
• listeners to illegal broadcasters in these three boroughs are from a variety of ethnic backgrounds, with black listeners making up 49% of the group;
• overall, the music content of illegal stations is the main motivator for listening in London; and
• nearly a quarter (24%) of people who listen to illegal stations in Hackney, Haringey and Lambeth do so because they broadcast in languages other than English.

In addition to continuing its programme of enforcement action against illegal broadcasters, Ofcom plans to consult on new ways to tackle the problem later in the year; today’s research will help to inform the process.

Ofcom Chief Executive Ed Richards said: “Ofcom’s field force team works very hard to keep the radio spectrum free from interference for licensed users. However, we recognise that there is demand for content provided by illegal broadcasters in some areas of the country. This research will help shape our thinking on how to tackle this serious issue in the future.”

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There are a number of challenges currently facing the radio sector. These include increased competition from other technologies, such as the internet, and an increasing share of radio listening by digital platforms which places greater pressure on local analogue stations.

Ofcom’s proposed approach seeks to address these issues and ensure that as radio makes its transition to digital, it continues to offer listeners choice and diversity, and that regulation remains proportionate. Today’s consultation follows Ofcom’s discussion document published last November.

Ofcom’s consultation focuses on three main areas:

Regulation of commercial radio

Most regulation of commercial radio is currently focused on analogue local stations. As the proportion of listening on digital platforms increases Ofcom believes it makes sense to align the regulation of analogue radio with the regulation of DAB.

Ofcom proposes simplifying the level of detail required in analogue Formats, which specify the type of programming and the amount of local material a station must produce, and standardising the requirements for local material in programming based on the size of station.

These changes would allow stations to re-focus their local investment to meet listener needs more effectively. At the same time, the regulatory obligations imposed on smaller commercial radio stations would be reduced.

Ofcom also suggests that Government may wish to consider simplifying the current ownership rules, which currently apply in different ways to analogue and digital stations. Ofcom suggests moving to a single set of ownership rules across platforms as digital listening increases. Simplifying the ownership rules would provide greater flexibility for industry, and maintain listeners’ access to services and content from different providers.

Regulation of community radio

Ofcom has licensed 122 new community radio services to date. The level of regulation, such as funding restrictions and statutory licensing criteria, imposed upon these small stations is very high. Ofcom is seeking views on how the selection criteria, and ownership and funding rules in this area could be amended to reduce regulation. This will inform Ofcom’s work to prepare a report on community radio for the Secretary of State later this year.

Future use of analogue radio spectrum

Current trends suggest that 90% of all radio listening will be via digital platforms by 2017. At present, there are no plans to switch-off analogue (FM and AM) radio. Ofcom’s consultation seeks views on changes which could free-up spectrum, currently used by analogue radio services, at an appropriate time in the future.

Existing analogue commercial radio licences will expire between 2009 and 2027, depending upon the date of issue. Under current legislation, these licences would be re-advertised. However, in the future this spectrum might be better used for other services such as mobile television, more digital radio, more community radio services or other new technologies.

To avoid the possibility of inefficient spectrum use, Ofcom believes that Government and Parliament may wish to consider how to allow Ofcom to achieve common end-dates for all FM and AM licences. This will be a key question as digital radio listening continues to grow. Ofcom’s consultation sets out a suggested approach for achieving common end-dates, which includes:

• extending existing licences for an indefinite period;
• making any licences extended in this way subject to two years’ notice of termination; and
• removing the automatic renewal for analogue licences whose holders are also offering a DAB service on a relevant radio multiplex.

Any change to legislation and the timing of any changes are matters for Government and Parliament. In addition, Ofcom proposes two separate reviews of all analogue radio services:

• AM (Medium Wave) spectrum in 2009; and
• FM spectrum in 2012 or when digital listening accounts for 50% of all listening; whichever is earlier.

Both reviews would consider future use of analogue spectrum and set common end-dates for existing services (commercial and BBC). These reviews would include a full assessment of the costs and benefits, taking into account the needs of consumers, including the most vulnerable members of society.

Ofcom Chief Executive, Ed Richards, said: “Radio remains important to many consumers, but the environment which it operates in is changing. It is essential that regulation reflects this. The proposals we outline today seek to ensure a vibrant and innovative UK radio sector.”

The closing date for responses to Ofcom’s consultation is 29 June 2007.

Documents can be found on the OFCOM WEBSITE

The presentation from the launch can be seen below:

The Future of Radio – pdf version of Powerpoint presentation

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Ofcom has proposed a technology neutral auction of the radio spectrum released by the switch to all-digital television broadcasting between 2008 and 2012.

In its response, the BBC argues for the allocation of spectrum to Public Service Broadcasters to develop free-to-air, universally available high definition (HD) channels on the Digital Terrestrial Television platform (DTT).

The BBC also discloses findings of independent consultants that the loss to the UK in private and social value, if public service broadcasters are not able to develop HD services on DTT spectrum, is likely to range from £4.1billion to £15.6billion.

On HD, the BBC argues that:

• Consumers want HD-quality television, and are buying equipment in order to receive HD services. There are compelling reasons to believe that it will become a technology with widespread appeal.
• To ensure its long-term future viability and to enable it to compete with other platforms, Freeview must be able to offer a critical mass of HD services.
• There is not enough capacity on the existing six multiplexes, after Switchover (SO), to carry this critical mass without removing existing services or eroding their quality. Furthermore, there is no business model for free-to-air HD on DTT at this stage that could enable free-to-air broadcasters to sustain likely auction prices.
• A minimum of one third of the Digital Dividend (DD) should be allocated to Public Service Broadcasters (PSBs) to enable them to launch a strong free-to-air offer: at least one DTT multiplex with universal coverage providing three HD channels.
• This would kick-start a migration to more efficient MPEG4 receivers which could, over time, be used by standard definition (SD) services and greatly improve spectrum efficiency on DTT. The adoption of MPEG4 receivers is the pre-condition for HD becoming widespread on DTT, and the allocation of additional spectrum capacity would allow for a managed transition to the new format, while not depriving viewers of existing services using MPEG2 receivers.
• Not all the Digital Dividend is required to support free-to-air HD. Much of the spectrum would be available for other uses, which could include local TV, mobile TV, radio mics, rural wireless broadband or even more standard television channels.
• Only the Digital Dividend spectrum (UHF) is suitable for high definition or other television channels. But much more spectrum, which could be used for some of the above or other uses, is to be auctioned in due course.

The BBC submission to the Digital Dividend Review also comments on proposals to safeguard switchover, to protect the use of radio microphones in television production and theatre (Programme-Making and Special Events or PMSE) and to facilitate the launch of mobile television and local television services.

Mark Thompson, the BBC’s Director-General, said: “High Definition is already a consumer reality, and it’s one that really adds value for audiences.

“It’s a technological advance that we think can and should be available as far as possible to all viewers of digital television – whether they watch through cable, satellite or an aerial, and whether they choose pay or free-to-air services.

“If pure market mechanisms are applied to the whole Digital Dividend, our fear is that it will jeopardise the success of universal access to high quality public service broadcasting, free-to-air on all main platforms and also lead to an erosion of the digital terrestrial platform and its ability to compete.”

Auctioning off the whole of the released spectrum at the end of 2008 would foreclose the option for HD channels for up to 18 years, the licence period proposed by Ofcom.

The PSBs believe instead that there should be a combination of a market-led auction and a carefully designed interventionist approach to the release of spectrum, to bring more benefits to citizens and consumers (the largest intervention to date has been the move to Digital Switchover).

BBC Response To OFCOMs Digital Dividend Review

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Ofcom is planning to invite applications later this year for the second round of community radio licences.

‘Letters of intent’ to apply for a licence

In order to assist our planning for the second round of community radio development, we are now inviting prospective applicants for a community radio licence to submit a ‘letter of intent’, outlining their intention to apply.

A ‘letter of intent’ should include the following information:

* the proposed station or company name (if available)
* the location of the service you would like to operate (i.e. the area you wish to cover)
* the community you wish to serve
* AM or FM
* your contact details

Please send your letter of intent to apply for a community radio licence to communityradio@ofcom.org.uk, or by post to:

Community Radio Licensing
5 th Floor
Ofcom
Riverside House
2a Southwark Bridge Road
London SE1 9HA

The closing-date for the submission of ‘letters of intent’ is Friday 21 April 2006.

Submission of a ‘letter of intent’ will not be taken as a binding promise on the part of its author to apply for a licence. Equally, the invitation to apply for a community radio licence will not be limited only to those who have submitted a ‘letter of intent’.

The ‘letters of intent’ will help Ofcom to design a licensing process which takes account of the pattern of expected demand in different parts of the country. This may involve inviting applications on a regional basis, rather than from all over the UK at the same time (as we did in the first round). This approach will help us to plan our work more effectively, and to reduce the period between an applicant submitting his or her application and Ofcom reaching a decision on whether to award a licence.

The availability of FM frequencies

For the second round of community radio licensing, Ofcom intends to continue to license the majority of services for stereo broadcasting on FM frequencies. However, due to the general lack of useable frequencies in major conurbations, and the large number of successful applicants in the first round of community radio licensing, there are some parts of the UK where Ofcom expects to experience great difficulty in identifying further suitable frequencies in the FM band. In these circumstances, Ofcom will investigate whether an FM frequency could be used for mono rather than stereo transmission. Operating in mono uses less bandwidth and is therefore less prone to incoming interference than stereo broadcasting. In addition, services may often be planned closer to one another in frequency terms, thus potentially enabling more services to be licensed in a region than if stereo was used. Identifying suitable FM frequencies which could be used for mono transmission may still prove challenging in some parts of the UK, however.

Areas of FM frequency scarcity

Potential applicants should note the areas where Ofcom has found it difficult to identify suitable FM frequencies for community radio services. This situation is not likely to improve, especially in many parts of the following regions:

* Greater London (within the M25). We do not expect to be able to find further FM frequencies (for either stereo or mono broadcasts) in much of Greater London, with the possible exception of areas south of the South Circular Road (A205).
* West Yorkshire
* Greater Manchester
* Home Counties
* Merseyside
* West Midlands
* South Wales (from Swansea to Newport)
* This is not an exhaustive list, and there may be other locations where we are unable to find suitable FM frequencies. This is particularly true of large conurbations.

AM (medium wave) frequencies

Applicants may choose to apply for a licence on either the FM or AM band. AM is generally more expensive to broadcast and sound quality is generally inferior to FM, but in some cases AM may be more suitable – for example in rural, hilly areas, or where FM frequencies are not available. We expect to be able to identify a limited number of frequencies on the AM band in some of the areas listed above, where additional FM frequencies are extremely scarce.

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Section 264 of the Communications Act 2003 requires Ofcom to report on the effectiveness of the existing public service broadcasters – BBC , ITV, Channel 4, S4C, Five and Teletext – in the delivery of their public service broadcasting obligations; and to make recommendations for the continuation of public service broadcasting in the years ahead.

The Phase 2 Report highlights that the existing analogue model of public service broadcasting, which has been sustained for many years by a combination of institutions, funding and regulation, will not survive the transition to digital and may erode rapidly prior to 2012. Ofcom is therefore proposing a new settlement be put in place in order to secure competition for quality before the old model has completely eroded.

The framework has seven proposals:

The increasing importance of a strong, independent, fully-funded and public service focused BBC ; funded through a licence-fee model.
Channel 4, as a critical second provider of public service broadcasting, to remain as a primarily not-for-profit free-to-air broadcaster, free to form alliances, joint ventures and partnerships with other organisations, with the possibility of asset transfer as a route to create scale and public service impact.
ITV1 to play to its strengths in public service broadcasting, contributing through high-quality, UK-originated production, investment in news, regional news and current affairs, with a proposed initial reduction in, then phased withdrawal of, regional non-news obligations. Ofcom also proposes using the greater flexibility afforded by the Communications Act in assessing the delivery of ITV1’s obligations such as arts, children’s and religious programming.
A new approach to programming for the Nations and Regions, with regional production on ITV1 and a rebalancing of some non-news regional responsibilities to the BBC.
Channel Five committed to UK-originated programming and acting as a market-led public service broadcaster.
A strong independent production sector based on the successful implementation of the new Codes of Practice introduced by Ofcom earlier this year. However, if the programme supply market is not working more efficiently 12 months from now, Ofcom will take further action.
A new concept to stimulate innovation and plurality: a competition to run a new Public Service Publisher (PSP) using new technologies and distribution systems to meet audience needs in the digital age. A winning bid could come from any current broadcaster, any media company (except the BBC), an independent producer, infrastructure operator – or a consortium of such companies.
The proposals are subject to public consultation; the closing date for responses is 24 November 2004. The Review will be completed once the final Phase 3 report is published at the end of the year. Ofcom’s PSB Review will inform the Government’s own review of the BBC Charter as well as its decisions on the timing of digital switchover.

Ofcom Chief Executive Stephen Carter said: “The historical compact between broadcaster, audience, Government and regulator will not survive the move to digital.”

He added: “Our seven proposals, taken together, aim to keep the strongest of the traditional whilst adding the spur of the new. We look forward to hearing people’s views.”

The Executive Summary of the Report is available online at:

Exec Summary

The full Phase 2 Report (in pdf format) is available online at:

Phase 2 report

(Please note that if these links do not work, you should copy and paste the urls above into your browser).

If you have problems accessing these documents then please contact KamPra for an emailed version.

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The Community Radio Order 2004 was accepted in parliament on Tuesday 13 July 2004 paving the way for applications from Community Organisations for long term licences to broadcast. The Committee discussion ranged from the definition of Community Radio through to the ways in which the funding and maintenance of Community Stations should be carried out. Following the successful pilot Access Radio scheme sanctioned by the Radio Authority, Ofcom has now worked fast to develop the framework in which Community Radio can flourish in the UK.

Attached is the transcript of the Committee’s discussions…..

Draft Community Radio Order 2004
——————————————————————————–
Second Standing Committee on Delegated Legislation
Tuesday 13 July 2004
[Miss Anne Begg in the Chair]
Draft Community Radio Order 2004

9.55 am

John McDonnell (Hayes and Harlington) (Lab): May I declare an interest? I chair a voluntary organisation that is applying for charitable status and that may, in due course, apply for a community radio licence.

The Minister for the Arts (Estelle Morris): I beg to move,

That the Committee has considered the draft Community Radio Order 2004.

This is the first time that I have served under your chairmanship, Miss Begg, but I hope that it will not be the last. I look forward to doing so.

Community radio, as many hon. Members know, is a new and potentially exciting tier of very local radio. Such services will be an invaluable addition to the radio ecology, supporting and complementing the commercial sector and the BBC. We support community radio because it will encourage and support social inclusion, local education and lifelong learning, training and work experience, and wider access to broadcasting opportunities for communities.

Before going any further, I pay tribute to local commercial radio. As we all know, particularly as constituency MPs, it has for a long time provided an invaluable and popular service in the areas that it serves. Whether we are talking about big stations in the capital city or small stations in rural areas, it contributes strongly to an area’s sense of identity and gets involved in all sorts of worthwhile social activities on and off air. We do not for a minute underestimate or undervalue the important role of local commercial radio. However, there is room for an additional tier of very local radio services along the lines of community radio.

Properly introduced and regulated community radio will complement existing commercial radio stations rather than compete with them. Community radio can provide a pool of talent for the commercial sector. It can encourage very local advertisers, which may in due course grow on to the local commercial stations as their business expands. It can also serve different audiences from those served by the commercial sector.

Above all, to have real and lasting value, community radio must be distinctive from commercial radio. There are some interesting examples of that among the pilot radio stations. For example, Takeover Radio in Leicester has broadcast with and to children, and Angel Radio in Havant broadcasts to an older generation. Awaz broadcasts to the Glasgow Asian community. There is also Sound Radio in Hackney, which describes itself as the world service for east London.
I will explain the regulatory regime under which the new sector of radio will operate. The Communications Act 2003 allows the Government to make an order that modifies the radio provisions of the Broadcasting Act 1990, so that they apply differently in some respects to community radio services. That is what this order does. In effect, it says that if someone is dealing with community radio, they should read the existing legislation with the modifications set out in the order.

I will go through some key provisions of the order. It sets out what characteristics community stations must have. They must be primarily for the benefit of the community or communities that they serve, and must deliver social gain, which the order defines. That means, for example, that stations must provide services to otherwise underserved groups, encourage discussion and expression of opinion, strengthen links with the community, and provide education and training opportunities.

Community radio services must be not-for-profit or non-profit distributing. Any profits must be ploughed back into the station or the local community that it serves. Community radio stations must provide opportunities for the community to which they broadcast to become involved in the running of the stations and the production of programming. They must be properly accountable to the communities that they serve. Those characteristics will ensure that community radio stations are distinct from existing commercial local radio services.

The order places certain restrictions on ownership. In particular, it ensures that community radio licences cannot be held by the commercial radio sector. That is another way in which we aim to ensure that the two sectors remain distinct. The order also provides that no one can hold more than one licence, which will prevent the development of chains. The schedule to the order sets out the modifications to the existing legislation, which are in line with the characteristics to which I have referred. I want, however, to draw the Committee’s attention to a few aspects of the order.

First, the licences for community radio licences will be limited to five years. There are good arguments for a longer period, mainly on the grounds that it gives stations a longer period in which to plan. Against that, the demand for licences is likely to exceed supply. Anthony Everitt looked at this question in his excellent evaluation of the pilots and concluded that five years

”would provide sufficient security of tenure for a licence holder both for delivering social gain and for fundraising, while at the same time creating adequate opportunity for new community radio entrants.”

We agreed with that conclusion.
Mr. Geoffrey Clifton-Brown (Cotswold) (Con): The length of the licence is very important because it takes time and investment to get a community radio station off the ground. Will the existing applicant be able to reapply after five years to renew his licence?

Estelle Morris: Yes. We envisage that they would be able to apply again. The hon. Gentleman makes a fair point. We will want to review all the provisions in two years’ time anyway to see whether they are working well.

The schedule sets out a number of restrictions relating to the funding and location of community radio services. The order provides that a community radio service must not take more than 50 per cent. of its income from any one source. This is based on Anthony Everitt’s conclusion that a mixed funding model is best as it avoids undue dependence on one source of income. Stations will not fall under the influence of a dominant funder and will be more resilient if one form of funding ceases for whatever reason.

The order also sets out restrictions on the location of stations and the extent to which they can take advertising and sponsorship. They are as follows: no community radio stations are to be licensed where they would overlap with a commercial radio station with a potential audience or ”measured coverage area” of up to 50,000 adults; a community radio station will not be allowed to take any advertising or sponsorship if it overlaps with a commercial station with a measured coverage area of between 50,000 and 150,000 adults; and, where advertising and sponsorship is allowed, there will be an upper limit of 50 per cent. of total income from those sources.

That is by far and away the most controversial part of the order. Many of those in the community media sector feel that it is too protectionist towards the commercial sector. We understand that view, but we do not share it. We have tried in the order to strike the right balance between the sometimes conflicting wishes and desires of the community and commercial sectors. Taken together, the measures that I have just described would affect only 13.5 per cent of the population of the country. Only 0.9 per cent. would be prevented from having a community radio station.

There is no benefit to anyone in putting small stations out of business or in seriously damaging their business. We are not talking about simple, head-to-head competition. Community radio stations will be able to access various sources of funding, including Government funding, which are not available to the commercial sector. That will amount to £500,000 for each of the next two years. That means that they could sell advertising at a rate that undercuts commercial stations and deprives them of revenue. We need to have in place measures that ensure that the two sectors can happily co-exist.

This document represents a change from the draft order. The draft order placed a duty on Ofcom to have regard to the impact of community radio stations on the commercial sector. Whichever route we took, whether in the draft order on which we consulted or the order before the Committee now, the result would have been substantially the same. There would still have been areas where the existence of a small commercial station would have meant that Ofcom would not license a community radio station in that area.The order tries to make transparent and unambiguous what was implied in the earlier draft. It reflects the responses from both the commercial and community sectors to the consultation document.
The community radio journey is an open one. We have formally asked Ofcom to conduct a review of the community radio sector two years after the first community station is licensed. If that review concludes that the restrictions are unnecessary or too burdensome, we will remove or modify them by bringing forward a further order for Parliament’s approval. I repeat, therefore, that this order is not necessarily the final word on the subject. Once we have better knowledge of how the sector is developing, we will revisit the restrictions in this order to see if they are still necessary and desirable.

We should welcome this order, which is the start of a potentially very exciting journey for local radio. I hope that I have said enough for it to receive the support of the Committee.

10.5 am

Mr. Boris Johnson (Henley) (Con): Conservative Members welcome this statutory instrument and the setting up of community radio. Many of us will have had direct experience in our constituencies of the benefits that community radio can bring to people. I recently had a wonderful time at Huntercombe young offenders institution listening to ”Thug FM”, or whatever they call their excellent radio station. Radio stations in sixth form colleges and in other communities do a lot of good in informing people what is going on in their community and educating them in the ways of the media—I am not sure we need too many more people to be inducted into that profession, but it is good that they get the training.

The Minister has already covered the issues relating to competition and funding, which formed a large part of the debate during the consultation period. I hope that she will not mind if I go over them again. I was fascinated to read in the Department for Culture, Media and Sport paper that there will not be any public funding. However, in one place, it stated that there will be no call on the Exchequer, but in another place it said that £500,000 would be given. Is that an accurate representation of the extent to which public money will be made available to community radio? According to the order, only 50 per cent. of funding for community radio stations will be derived from sponsorship and advertising. It follows that the rest must come from some kind of subsidy, which must ultimately be from the taxpayer.

I echo the words of Baroness Buscombe in another place when she said that she wanted more clarification about what means would be found to push public money into community radio. I can think of a few examples off the top of my head of bodies that might fund community radio—for example directorate-general 10 of the European Commission is always willing to pump out money to those who will pump out good news about Europe. I am also told that there will be a community media fund—I do not know what that body will do or how it will work, but quite a lot of taxpayers’ money will be available.

Mr. Don Foster (Bath) (LD): The hon. Gentleman has hit on an important point and I hope that he will get clear answers from the Minister. However, being the diligent fellow that he is, I am sure that he will have thoroughly read the explanatory memorandum, the last page of which clearly states:

”Costs to the public or the Exchequer. None”.

Mr. Johnson: Those are exactly the words I had in mind when I sought clarification from the Minister. If only 50 per cent. of funding will be attracted by advertising and sponsorship, it must logically follow that public money will be available. Therefore, as the Minister was candid enough to admit, we have the prospect of a great number of community radio stations, which will be pump primed by taxpayers’ cash, being able to compete for advertisers’ limited budgets. Because of their favoured position, they will be able to offer more attractive rates to the advertisers than commercial stations. That would be unfair and wrong. As Juice FM said in its submission to Ofcom, that could severely impact its commercial position. What we do not want is community radio to be a replication of commercial radio. We all agree that it should be qualitatively different and offer a service that commercial radio cannot.
I want to repeat the point made by Fresh Radio from the Yorkshire dales. I do not listen to it myself, but I believe that it was an important focal point during the foot and mouth outbreak. [Interruption.] The hon. Member for Colchester (Bob Russell) intervened from a sedentary position, but I missed what he said. However, people in Yorkshire tuned in to Fresh Radio a lot during the foot and mouth outbreak to find out what was going on: where the epidemic had reached, exactly which farms had been affected and what the Ministry of Agriculture, Fisheries and Food was saying in detail on the ground. It would be hard to think of a more perfect definition of a community radio, in the sense that local services were being advertised and a particular community—in this case, a farming community—was being assisted.

Whatever the Government mean by the oracular phrase ‘’social gain”, which has been imperfectly defined, it was surely achieved by Fresh Radio. That is why it should be taken seriously when it says:

”We cannot overemphasise the potentially dramatic negative effect, on our own future viability, of the creation of even a single community station within our area, if that station was allowed to draw on commercial revenue from what is already a difficult market place”.

I am sure that everyone agrees that it would be wrong if such a radio station, which I am sure has an independent editorial line, were crowded out of the market by a radio half-funded by the emanations of the state, with all the consequences for editorial independence that that might have.
There will also be a lot of competition over bandwidth, and unless I have misunderstood it, the BBC is not to be plundered of its bandwidth for the establishment of community radio. I see no particular reason why that should be the case and why the BBC’s large share of the bandwidth should not be made available to community radio. Incidentally, I also do not see any reason why the Pentagon, which has a large share of the bandwidth in this country, should not also be prevailed on to hand over to community radio some of the large quantity of our vital national infrastructure that it uses. [Interruption.] Again, I cannot hear the interjection from a sedentary position. [Hon. Members: ''Bush radio.''] Oh, Bush radio. I hope that the Minister agrees with me on that, as I am sure that she does, given her political convictions and origins.
Notwithstanding my support for the order, I have a general concern about how it is set out, the language that is used and the definitions that we are bringing to bear. It says that to qualify for a licence, someone has to show that they are able to deliver social gain to the relevant community. I am not sure what is meant by social gain. Indeed, what is a community and how is it properly defined? It is a sketchy concept, but it is of considerable political importance that we agree on what a community is before we agree to the order.

The order defines a community as either

”persons who live . . . or undergo education or training in a particular area . . . or persons who . . . have one or more interests or characteristics in common”.

That seems a broad definition of a community. A leper colony is obviously a community under that definition, and one could imagine that ethnic minorities or groups of one kind or another could make a community. There may be plenty of communities that the Government and Ofcom would naturally be inclined to look on favourably. However, does the Minister also agree that there may be plenty of other communities, properly so-called under the definition, that would not normally commend themselves to people of a politically correct disposition?
Irrespective of political correctness, there might be communities that the Minister and Ofcom have simply not thought of, but which might nevertheless be very important. Such groups could be classified as communities. For example, there is the community of fat people—or obese people, as we are increasingly asked to call them—of which I am proud to be an honorary member. Obese people have their own representative interest groups, magazines and lobby groups, and the obese community has every right to know what advantages may be available to it from local authorities.

I hope that the Minister agrees that, if ”Fat FM” wanted to inform people of what was going on in the fat community and wanted to make them aware of important things that might be relevant to their lives, it would be difficult for Ofcom to turn down its application for a licence. I hope that she agrees that those people represent a community under the definition. Under the statutory instrument, communities are emphatically not created according to geographical area.

Another community minority that is emphatically out of favour with the Government, although by no means illegal, consists of those who practice country pursuits, or what others call fox hunting. As long as fox hunting is still legal, people might want to set up a community radio station called ”Hound FM”.

Bob Russell (Colchester) (LD): Fox FM.

Mr. Johnson: There is already a radio station called Fox FM. I was going to mention the name, but I would get in trouble with the station if I associated it with hunting. One can imagine a community radio station that wanted to broadcast news about hunting to the country sports community. I do not want the Minister to declare whether she would be in favour of such a community radio station. She does not have to commit herself about whether she personally wants such a body to exist, because I have no doubt that she will say that that is a matter for Ofcom and that it would be up to it to decide whether ”Hound FM” or ”Fat FM” led to some kind of social gain, as the phrase goes.

The question then becomes what happens if Ofcom decides that either of those two putative stations does not deserve a licence. What if Ofcom decides, ”In this particular climate, we are not going to license a station called Hound FM, which speaks expressly for the hunting community”? What happens if it decides not to license ”Hound FM” despite all the information that it provides to the hunting community, all the good that it does in terms of telling huntsmen where to pick up fallen stock, any other social function that it fulfils, and all the claims that it can make to satisfy Ofcom’s criteria for social gain?

Who ultimately decides? Where is the ultimate locus of authority? Does Ofcom have final arbitration over what constitutes social gain? Does it ultimately decide what a community is and therefore what group is entitled to a community radio? Or does a democratically elected politician decide? Where does Minister believe that authority ultimately resides? If ”Hound FM” were turned down for a licence and it came to the Minister, would she be able to overturn Ofcom’s verdict? That is what interests me. I do not know what she thinks but, in the end, I would rather see a democratically elected politician having ultimate accountability for such a serious political decision.

I conclude by repeating my broad welcome for the proposals, but I remind the Minister of the central problem, which she was good enough to address: we do not want community radio stations to compete unfairly—rather like the BBC’s downstream commercial activities compete unfairly with private sector operations—with local commercial radio stations, and, as she set out very well, unfairly take from the small advertising cake. I should like it to be made a little clearer that if Ofcom decides that a community radio station is competing unfairly, it will be able to say to it, ”I’m sorry, that’s it. You’re taking too much of a share of a commercial market, so your time’s up and your licence is revoked.” I hope that she will reassure me on that point.

Other than that, my colleagues and I are happy to welcome the proposals.

10.20 am

Mr. Michael Connarty (Falkirk, East) (Lab): Like everyone else, I have been allocated to the Committee. However, I was particularly interested to come along to this sitting. In a previous existence, I was deeply involved in trying to set up a community radio in the central region, and eventually a commercial station, Central FM, was established. It took on some of these roles, but we never managed to get a proper community radio station.
I have some concerns. One is that this matter is always seen, and described by the Opposition, in terms of competition. In reality, there is a possibility for co-operation. I imagine that a community radio station could be established in the central region that would address a different community, so would not necessarily be plugged into the Forth and Clyde networks, which are the larger combine of which this region is part. It might look for a different source of income from that which commercial radio used, and might not attempt to keep afloat by poaching Central FM’s commercial sponsors but would look for smaller interest groups with less money that wanted to advertise different services and could not currently afford to pay the fees charged by commercial radio stations. I can think of a number of organisations based in the central region that come into that category.

Would it be possible for a body defined in article 6(3) as a ”body corporate”, which could not hold a community radio station licence, to co-operate and work with a community radio station? For example, Central FM might want to co-operate with a radio station based in Stirling or one of the more far-flung communities in my constituency such as Bo’ness—the town of Borrowstounness—on the fringe of its area. There is tremendous potential for that, and it would involve co-operation, not competition. Commercial radio admits that it cannot reach out to all the small groups in a community that would like their wares and their ideas put over on the radio.

The question that the Opposition raised is important. I would be worried that a particular religious group, such as the creationists who might want to push their ideas on ”Vardy FM”, or a group such as the one establishing ”Hound FM”, as suggested by the Opposition, might call themselves a community because they have a particular preference or prejudice and claim the right to have a community licence. I should not want to see that happen, and although the Opposition made a trivial, light-hearted comment on it, we must guard against it. What protection is there against the proliferation of religious-based stations?

Licensing is very important. How do we protect the territory of a community radio? If a station starts to draw a big audience, the temptation is for some commercial enterprise to come along and suck it up in the next round of licensing. In a sense, although it was done in co-operation with Central FM, that is really what happened to community radio in central Scotland. Community radio could not make a go of it, and the commercial radio station saw that there was an audience, and a niche that it could move into, and it moved into it. Good luck to it; it provided us with a service.

Mr. Clifton-Brown: The hon. Gentleman criticised my hon. Friend the Member for Henley (Mr. Johnson) for giving the example of a community of fox hunters who wished to set up ”Hound FM”. The hon. Gentleman said that he deplored that idea, but would he not agree that one person’s preference might be another’s prejudice? Who is to say what objects are preferable and what are not in setting up a community radio? Will he touch on why he has come to his conclusion on that?
Mr. Connarty: I should hate to be accused of criticising the hon. Member for Henley. He is such a jolly chap that I find him very entertaining, and I never criticise people who are so lightweight. I was making the point that communities must be defined in such a way that they are groups linked not just by a preference or a prejudice.

I am serious about religious groupings. A hole in the legislation would be created, and we debated at great length the question of religious radio and religious radio stations in the commercial sector. If we were to offer community radio to people based on their religious beliefs, we would be entirely wrong. If we said that a religious grouping was enough to create a community radio, there would be a massive temptation for the number of community radio stations to proliferate, and that would go against the intentions of the legislation. I do not know whether the Minister and others discussed it at any length, but I would be deeply concerned if the term ”community” had nothing to do with communities in the sense of local areas.

Mr. Johnson: Will the hon. Gentleman give way?

Mr. Connarty: Not at the moment. I have another meeting to go to shortly, so I will not be taking many interventions.

I would be concerned if people claimed that community meant their particular beliefs or prejudices. That is not in the spirit of the legislation. If we allow it, in a couple of years we will be in trouble, because a great deal of time will be taken up by such people wanting to run radio stations. They would find money for those radio stations—possibly from the Vardys of this world, creating creationist radio stations around and about its creationist schools throughout the country. That would greatly worry me.

How do we protect an established community, particularly in a regional area? Once an audience is created for radio in a regional area, the temptation is for someone to think that there is money to be made out of the audience by selling audience numbers. The hon. Member for Henley spends a lot of time in the media, and he knows what it is all about—selling advertising between the written stories to make money for commercial enterprises.

I was deeply concerned when the commercial radio station, Beat FM, was given a licence in Scotland. It was a money-making exercise for several people. Certain famous footballers put up a bond of £100,000 for Beat FM, saying that it was going to produce new beat music, and I think it did. I am very interested in the music scene, and it was a good addition to it. However, it was sold off to Capital Radio after about a year or two, and those who put up the £100,000 bond walked off with £1 million. Beat FM is just another trashy commercial pop station selling advertising. It shows that what one sells and what one thinks is being set up as a licence can be easily amended. No one says, ”That was not the purpose of the licence. We are taking it off you.” They let it run on.
I worry that commercial stations will come in, take over their patch and turn community radio into a commercial enterprise. I would like to see something to protect community radio, and particularly geographical communities, from such intervention. I apologise because I will not be able to hear the Minister’s reply as I have a meeting at 10.30. However, there are still some holes in the legislation, and although I support it, I would be concerned if it were contaminated by interference.

10.28 am

Mr. Foster: May I say how pleased I am to serve on this Committee under your chairmanship, Miss Begg, and how delighted I am to follow the contribution from the hon. Member for Henley? I am disappointed that his hearing is obviously not too good in that he missed several asides from my hon. Friend the Member for Colchester. The hon. Gentleman picked up the reference to ”Bush radio”, but he certainly missed the reference to ”Mrs Dale’s Diary”. When the hon. Gentleman referred to the suggestion of setting up ”FAT FM”, he missed the sedentary comment from my hon. Friend, who pointed out that no doubt it would be run by the fat controller.

I am genuinely delighted to serve on this Committee, because we are discussing an important order that has been a long time in coming. I remember vividly a Liberal activist called Ray Beattie, who back in the early 1980s was constantly pestering me about the importance of community radio. He is still active in community radio, but unfortunately it is in Warminster, where they have had community radio for a long time. As a result of the order, it is one of those areas that will not be able to apply for a licence despite having had a community radio station predating by about five years the local commercial radio station covering that area. He will be disappointed, but many others who have worked in this field for more than 20 years will be delighted, despite some reservations about aspects of the order. At long last, what the Minister rightly called an exciting tier of radio ecology will shortly be with us.

In her introductory remarks, the Minister praised local commercial radio. She was right to do that. I had the good fortune recently to be one of the judges for the Commercial Radio Companies Association annual awards. My task was to judge the competition in respect of the social benefit that local commercial radio stations brought to their communities. I was able to judge some wonderful contributions, ranging from work to combat gun crime to the campaign by the radio station that won the award to make significant improvements in road safety on a major road in its area. However, I was disappointed that the Minister did not, at the same time, give similar praise to the BBC stations—non-commercial local radio stations—which also make a major contribution to the communities that they serve.
The order is about unique radio stations that will provide distinctive community radio activities for much smaller areas. The Minister was right to stress the word ”distinctive”, as such stations will be distinctive. Their programmes will be different from what is offered by many of the local commercial radio stations and local BBC radio stations. It is therefore a pity that, because of the order, six million or more people will miss out on that distinctive provision by community radio. There is no doubt that community radio brings huge benefits. We know that from the trials and on the basis of the short-term licences that have been offered in various communities.

Only yesterday, my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) drew my attention to a short-term licence that was given to Lionheart Radio in Alnwick. The station is on air for short periods—four weeks at a time—and serves only 10,000 people. Nevertheless, 5,000 people responded by telephone, e-mail, fax or letter to one of the activities that it promoted on the radio. That shows the power that community radio can have to address issues that really matter to local people.

I am delighted that the order has been laid, but, as I said, I am concerned that six million people will lose out because of the restrictions that the Minister has introduced. Time is short, so I shall not repeat all the concerns about them that have been expressed by many organisations. I was absolutely delighted by the Minister’s commitment—I hope that she will repeat it when she winds up so that it is clearly on the record—that the order is not the final word but an opening position, and that she will insist on a review of the introduction of community radio so that we can consider once more the restrictions on advertising or even having a licence at all in some parts of the country. I am delighted that there will at least be an opportunity to review them and therefore the possibility that the six million people who are likely to lose out at present will, in future, be able to have a distinctive community radio station. I believe that that would please hon. Members on both sides.

I end by asking the Minister a specific question. Supporters of community radio have raised an additional concern about applications for licences. The Minister will correct me if I am wrong or explain how it will be possible if I am right, but it is necessary for a licence applicant to make an assessment of the impact that their proposals will have on the economic viability of other commercial radio stations. If that is the case, I would be grateful if she would explain how an applicant could do that. They would not have access to the financial information about the commercial radio stations in their area and even though those stations publish their annual accounts, the detail and the fragility of their advertising base or other sources of income will clearly not be made public, or made known to rival organisations. I fail to understand how that will be possible. I am sure that the Minister will have thought the matter through and will have a clear answer. It would be helpful to put it on the record.
Although I have genuine concerns about some of the restrictions that will be put in place because of the order—they will prevent some parts of the country from benefiting from the advent of community radio—I welcome the fact that many people will have the opportunity to benefit from what the Minister rightly described as an exciting new tier in the ecology of radio.

10.36 am

Ian Lucas (Wrexham) (Lab): I, too, welcome the order, and I am aware that some of my constituents are on the starting blocks, waiting for it to come into effect.

In my constituency of Wrexham, there is no BBC local radio station. In Wales, the only local station is BBC Radio Wales. The local commercial station, MFM, directs its attention largely to younger people—my daughter is an avid listener—but its appeal does not extend to individuals in their 40s, let alone those in their 60s, because of its music content. There is a huge opportunity for my community, and different communities throughout the UK, to introduce community radio into their area.

Earlier this year, the opportunity was taken, through a restricted service licence for a limited period, to provide community radio in Wrexham. I am therefore relieved that Wrexham does not appear on the list of areas that will not be able to apply for community radio as a result of the order. I was pleased to hear the Minister say that the situation relating to applications for community radio will be reviewed after two years. It is extremely important that the quite restrictive approach taken in the draft order is examined to establish whether it has a direct effect on community groups in areas making applications.

I do not share the resistance to an element of state funding that has been raised in the Committee. Bearing in mind that the community radio fund is only set at £500,000 for two years, it is essential that other avenues of state funding are available. In Wales, the communities first fund, which assists poorer communities, may be able to aid the development of community radio in such areas. Will the Minister make it clear that there will be no bar to other avenues of funding from state sources? It is important that those should be exploited. Communication within communities is extremely important, and it should be welcomed and extended. Communities are built on the basis of communication; those areas that lack community radio, or local radio, know how important it is.

On the issue of co-operation with other radio stations that was raised by my hon. Friend the Member for Falkirk, East (Mr. Connarty), both BBC and MFM—my local commercial station—have been very supportive of the applications and the effort made by community radio in my area. They consider it to be a possible breeding ground for individuals who are interested in developing the skills needed to move into broadcasting and as a sector with which it could work rather than as a threat. They see the development of community radio as something that can involve schools and people who are learning training skills in the broadcasting sector—a popular one. The potential to work with community radio is very important and one of the most positive aspects of the proposals.

10.39 am

Mr. Clifton-Brown: It is a great pleasure to serve under your chairmanship, Miss Begg. I have a declaration of interest that, in the interests of family harmony, I must make. My daughter was one of the people who recently re-founded the Altered radio in Oxford. Having lived through her experiences of that, I wish to comment on the order.

First, I want to deal with the point made by the hon. Member for Falkirk, East. We will get into great difficulty if licences are rejected on the basis of political correctness or prejudice, because one of the great strengths of this country has, throughout the centuries, been its freedom of speech. Perhaps the Minister can comment on that when she sums up. I think that the hon. Gentleman was fundamentally wrong to say that community radios should not apply to things such as religious groups or, to use the example of my hon. Friend the Member for Henley, to fox hunters. If an activity is legal in this country, I think that it would be perfectly reasonable for people to apply for a community radio to deal with it. I hope that the Minister will say something about that when she sums up.

Many Members have spoken about funding. The community media fund is worth only £500,000. We have received many representations on the matter. For example, the Community Media Association briefing paper says:

”We believe that the limitations in the Order will have to be balanced by a substantial Community Media fund to ensure that communities have a fair chance at establishing viable services that deliver real social gain.”

That is right, but achieving it is difficult. I know from my daughter’s experience that funding is restrictive. Sponsorship is restricted to half the total budget. My daughter was instrumental in setting up a radio station, and she went through the difficulty of getting a licence and the technical difficulties of setting up the radio and staffing it for almost 20 hours a day by students. I thought that it was very successful.
Will the Minister say something about the technical problems? Why are community radios restricted to analogue rather than digital? My daughter’s radio was also available on the web, which is, I believe, a digital method of transmission. With new technologies, I cannot see why community radios should be restricted to analogue. Will the Minister also say something about the cost of regulating community radios? Who will pay for that cost? Will it be her Department?

Will the Minister say something about the definitions of ‘’social gain”, of which there are eight? My hon. Friend the Member for Henley touched on that. Is it sufficient to meet one of those definitions? It would be helpful if she could say something about that. For the benefit of the Committee, the definitions of social gain are:

”The provision of education and training;
The provision of sound broadcast services to groups that are otherwise underserved;

The improvement of knowledge about a particular community and the strengthening of links within it;

The encouragement of regeneration within a particular coverage area;

The promotion of social inclusion;

The encouragement of participation in cultural activities;

The improvement of knowledge about, and delivery of, services provided by local authorities and other . . . amenities, or

The encouragement of participation in the democratic process”.

Will it be sufficient just to meet one of those criteria?
I am grateful for the opportunity to make those brief comments. In conclusion, I wholeheartedly welcome the order. I also welcome the fact that the Minister will re-examine what many people have suggested are too onerous restrictions in the order to try to help surrounding commercial radio stations. I welcome her assurances that the restrictions will be reviewed in two years.

10.45 am

John McDonnell: May I briefly ask the Minister to clarify the cost of the application? I cannot see any reference to the initial charge for applications.

In 1981, when I was a member of the Greater London council, I chaired and set up the first community radio forum for London through local government. It has taken 23 years to get this far with the development of community radio licensing. However, despite that, the Radio Authority and Ofcom have worked expeditiously, to say the least, because the legislation was introduced only in December and, six months later, we have the regulations. Such speed is not often seen in government, and I congratulate Radio Authority and Ofcom staff on that.

10.46 am

Bob Russell: Can the Minister confirm that, as I understand it, the areas affected by restrictions are geographic. If ”community” means a geographic community, would it not be helpful to spell that out in the order so that everyone would know that? That would, at a stroke, remove the perceived problems that the hon. Members for Falkirk, East, for Henley and for Cotswold (Mr. Clifton-Brown) have made clear. If it is not a geographic community, I foresee the problems that have been envisaged. The Minister should clarify the meaning precisely. Religious communities call themselves just that and if community radio is to mean what it says and if there is not a geographic restriction on community, a religious community could apply.

Mr. Clifton-Brown: The hon. Gentleman has touched on an interesting point. When my daughter set up her radio station, she was limited by the power output, which necessarily limited the geographical area. I would expect—the Minister may confirm this—that ”community” will be defined as a geographical area because of the limitation of power output. Otherwise, there could be interference with other commercial radio stations.
Bob Russell: I appreciate the hon. Gentleman’s point, but I think that a simple definition is needed. What is a community? If it is a geographic community, the order should say so. If it means community in the broader sense of the word, it means exactly what the hon. Members for Henley, for Falkirk, East and for Cotswold have said.

Mr. Johnson: For the sake of clarification, it is specifically set out in the order that ”community” means

”persons who . . . have one or more interests or characteristics in common”

irrespective of their geographic location.
Bob Russell: The debate is widening. Why is there a list of areas affected by restriction of the order? The Minister should firmly clarify today the definition of ”community” because that would answer all the points arising.

In my town and, I am sure, in many other parts of the country, there are successful hospital radio systems that, to the best of my knowledge, are broadcast not over the air waves but down cables. To my mind, those radio stations, many of which have been established for 20 or more years, are as proficient and professional as any commercial radio station. They strike me as ideal candidates for the sort of community radio to which the order refers. Will the Minister comment on that?

Finally, I represent a town that already has four local radio stations, unlike Wrexham, which has none. I do not anticipate that Colchester will be entitled to apply, but I leave a plea hanging in the air for the Minister because one of those four radio stations, which serves the garrison community in Colchester, would very much like, but is barred from having, an FM frequency.

10.50 am

Estelle Morris: This has been an interesting debate. First, I welcome hon. Members’ comments about community radio and its importance. As the hon. Member for Bath (Mr. Foster) said, I should have mentioned the BBC. I did not omit it deliberately, but the debate was about how community radio would affect commercial radio rather than the BBC. I pay tribute to the BBC and to all local radio.

Members of Parliament know, perhaps more than anyone else, the importance of local radio from talking to their constituents. Local radio is the most effective way of communicating with constituents, far more effective than using the national media and, dare I say it, it is often more accurate. However, I shall leave that debate for another day.

On funding, the hon. Members for Henley and for Bath were rather mean in not reading out the rest of the paragraph in the explanatory memorandum. To make it clear for the record, under the heading ”Costs to the public or the Exchequer”, they said that it stated ”None”, but it continues, ”directly arising from the draft Order. However, Ministers have announced that £0.5 million will be available to support community radio . . . Decisions on funding beyond this period will be taken in due course.”

The reason that it states ”none” is because it had already been announced and was from existing Department for Culture, Media and Sport resources. There is nothing in the order that would cause us to spend more Government money than we had already announced. However, that gives me the opportunity to talk more generally about funding.
The key point is that the DCMS or the Government will not be the only source of public funding. It is possible that a radio station could be completely funded from public sources, but not from one public source. No more than 50 per cent. could be taken from one public source, but a number of public funders might contribute to community radio: for example, the local authority, the Department for Education and Skills, which has a commitment to lifelong learning, other Departments, especially the Office of the Deputy Prime Minister, European funds, urban regeneration funds or grants from individuals. Local radio stations might have a plethora of funding from the public purse, but it will not all be from the DCMS or, indeed, from the Government. We do not want more than 50 per cent. to be from one source, because if that is taken away, community radio may collapse.

Mr. Foster: Will the hon. Lady give way?

Estelle Morris: Yes. I suspect that the hon. Gentleman has spotted something in the explanatory memorandum that I have not.

Mr. Foster: I am grateful to the Minister for giving me an opportunity to make it clear that I read out the version of the explanatory memorandum that I was sent. My hon. Friend the Member for Colchester points out that he has a different version of the memorandum, in which the word ”none”, which I quoted, was followed by the words that the Minister read out. There is clearly a problem with communications from the Department about the explanatory memorandum.

Estelle Morris: I assure the hon. Gentleman that we are not so short of resources that we ran out of ink. However, I apologise to him and to the hon. Member for Colchester, who has the same version of the explanatory memorandum as I have. I take back my earlier comments, but I am glad to have been able to enlighten the Committee by reading out the full and proper version of paragraph 25.

The hon. Member for Henley referred to the protection of commercial radio, which is a tough and difficult issue. It is strange that a Conservative Member does not seem to welcome the different activity of injecting competition into the market. I fear that he is becoming a bit over-protectionist.

Mr. Johnson rose—

Estelle Morris: I am happy to give way so that the hon. Gentleman can clarify the matter for the record.

Mr. Johnson: We all welcome competition of all kinds. What is worrying is when a state-subsidised radio can undercut commercial radio by offering advantageous rates to advertisers. That is unfair.

Estelle Morris: It is indeed, which is why we have put restrictions on community radio’s ability to raise money from advertising sources. We are not setting out to create a level playing field; as hon. Members have said, there are different sources. If the hon. Gentleman accepts that, it is difficult to complain about the restrictions that we have included, which is what he did. If he does not believe me, I say to him that I am particularly pleased that the Commercial Radio Companies Association welcomes the structure that we have introduced. It says that community radio

”has the potential to bring great enjoyment and fulfilment to those involved in operating these new stations. The Order sets out an excellent framework for a new tier of radio, and CRCA looks forward to watching the new Community Radio sector flourish.”

I sense that that means that we have got it right as far as commercial radio is concerned.
Responses from both sectors informed the final document. We chose 50 per cent., but it is not always easy to make such a judgment—one could ask why we did not choose 49 per cent., 51 per cent. or 60 per cent. Real politics means that one sometimes has to make arbitrary decisions of that sort, and that is why we want to review the situation after two years.

There are currently not too many complaints from commercial radio. I believe that the commercial radio sector thinks that we have got it about right, which may mean—life being life—that community radio may think that we have not got it quite right. It is a question of balance. However, I think the restrictions on the ability to open a community radio station related to a coverage of fewer than 50,000 adults and the restriction on advertising are right, because community radio has access to public funds. It would be wrong if we were to damage the existing commercial sector by our actions in promoting a new, flourishing form of very local radio. It is not meant to be that sort of competition.

We have asked Ofcom to review the situation in two years not because we think we have got it badly wrong. We think that we have got it right, but that it would be wise to review it because this is new territory. We think that we have got it right, but we need to look at the evidence. I am more than happy to say again on the record that we have asked Ofcom to review the situation; it will do so two years after the first licence has been issued. I do not know what the results of that review will be, but I believe that they will confirm that we have got it right. Only time will tell.

The hon. Member for Henley raised the question of who will decide the allocations for licences. Are politicians ever given the power to decide who has a licence to broadcast? An important part of our activity in the DCMS is that such issues must be independent of Government. Governments composed of any parties currently represented in Parliament would not expect to take such decisions—and I hope that that would not happen in the UK at any point in the future. The first thing that dictators of the left and right have always done is to decide who can broadcast. It is therefore imperative that we have a system in which the Government do not decide on the allocation of licences. Ofcom will decide, and I think that that is right. I am happy—and rather relieved—that Ofcom will have to decide between ”Fat FM”, ”Hound FM” and any other version of community radio.
Mr. Johnson: Does the Minister not consider the criteria on which Ofcom makes those decisions to be a matter of legitimate political concern? The hon. Member for Falkirk, East—who has had to leave the Committee—made a torrential attack on the possibility of creationist radio. What does the Minister think of that? Politicians cannot shirk such questions.

Estelle Morris: It is for politicians, on behalf of the people, to set out guidelines, but it is not for politicians to interfere in the allocation of individual licences. That is why the criteria are set out in article 2(2) and (3), and the hon. Member for Cotswold asked a question about that. A community radio service would have to fulfil all four criteria in paragraph (2), but those in paragraph (3) are optional—there are seven optional characteristics that could determine social gain. Ofcom will have to make the judgment on that, but it will not be easy.

I shall draw out what I think is the most important issue—individuals who are otherwise underserved by such services. It is no good repeating what the BBC and commercial radio do. If fat people were currently underserved by other local services, Ofcom could consider that. For the record, Ofcom will have to make some fine decisions, which could be subject to judicial review, in the same way as those of any other organisation.

I do not, however, share the fears of my hon. Friend the Member for Falkirk, East about religious organisations being able to get licences for community radio. They can, but they are subject to all the other broadcasting provisos. They would be subject to the same code as independent radio stations relating to impartiality, accuracy, standards of tastes and decency and non-denigration of other faiths. Community radio stations operate within that framework. My hon. Friend’s concerns were unfounded. In their licence applications, religious organisations would have to set out the sort of programmes that they would broadcast. If they did not stick to that, they would be fined or would have their licence taken away. Ofcom is a good regulator. Community radio will not act outside the rules that govern standards of taste and decency.

Mr. Clifton-Brown: In my daughter’s case, Ofcom was extremely reasonable. Much negotiation took place and eventually a licence was granted that was acceptable to Ofcom. Exchanges have taken place this morning with the hon. Member for Falkirk, East, and there may come a point at which a licence is refused. What will be the appeal mechanism? The Minister has signed a declaration that the order complies with the Human Rights Act 1998. As she knows, under that Act, there has to be a proper mechanism of appeal. I do not think that judicial review is a proper mechanism. It is extremely time consuming and expensive and it would not be available for most of those applying for a community radio licence. They simply would not have the resources.
Estelle Morris: I am advised by lawyers that judicial review is a perfectly acceptable means of appeal. All Ministers know that it can be exceptionally effective. We all have stories to tell about having lost a case at judicial review. Ofcom is not about to grant 1,000 licences for community radio in the same month. It will be a gradual process. There will always be competition for that bit of wavelength, and it is not a universal right to set up a community radio station. We are not challenging the nature of the legislative framework. Not everybody will get this. It will be for Ofcom to make the decisions. If it is thought to have acted outside its legal framework, it will be subject to judicial review. The hon. Gentleman does not feel that that is right, but I can say no more than that. My advice is that judicial review is perfectly acceptable.

The hon. Member for Bath drew attention to paragraph 3 in schedule 1. I picked that out too as it seemed to go contrary to the changes that we have made since the draft order. Indeed, the new order tries to stop community radio stations having to make a judgment about whether they will have an impact on commercial radio stations. Under the original legislation such stations provide information to Ofcom so that it can make that decision. It is not up to an applicant for a community radio station to get the information and to make that judgment.

The order does not apply to digital radio. Interestingly, that was another point that I spotted when I first looked at the order. Analogue is probably better for the audiences that community radio stations are likely to serve. In view of the current penetration of digital radio into the market there would probably not be any applications for digital licences. I am not hugely technical—I am barely technical at all—but I think that digital radio stations broadcast further than analogue stations, which might make the definitions more difficult. The hon. Member for Cotswold was absolutely right that the order does not apply to digital radio. If it were thought that community radio stations might want to apply for digital licences, it would be the subject of a separate order.

I have tried to answer all the questions.

Bob Russell rose—

Estelle Morris: Obviously I have not succeeded.

Bob Russell: I thought that my question was relatively simple. How is ”community” defined? Does it mean geographic communities or communities of interest? I suspect that communities of interests may invite the creation of radio stations by groups that may engage in the sort of problem areas to which the three hon. Members referred earlier.

Estelle Morris: I should have referred specifically to the hon. Gentleman’s, but I tried to include the answer in my general comments. Community can be used in both senses: geography and interest. If community radio overlaps with existing commercial radio, that is a case of a geographical community—the part of the country that is broadcasted to. However, community is defined in article 2 of the order and should most importantly refer to individuals otherwise underserved by radio services. Ofcom will have to use an element of judgment about whether it thinks that an application for a community radio licence fulfils the criteria in paragraph 2.
If I had to choose between community referring to geography or something else, I would say that it relates to a community of interest; the fact that those individuals are drawn together shows that they were previously underserved. Equally, because of the distance over which the station will broadcast, the individuals are likely to be in a similar geographical area anyway. It is genuinely not an easy differentiation to make.

Mr. Foster: I am conscious that time is tight, but I ask the Minister to comment specifically on an area in which there is clearly a shortage of provision for a particular interest group: children. Would it be possible, under the order, for a channel for children to be established? If so, would it be eligible to apply for money from the £500,000 fund?

Estelle Morris: Yes, because I think that children are particularly underserved by radio. The statistics on the numbers of children listening to radio are not good and we could do more work on that. If my memory serves me, I mentioned in my opening comments a community radio station in Leicester that is run for and by children. Having said to the hon. Member for Henley that politicians should not get involved, I will be careful, but my personal view is that children would fulfil the criteria for an under-represented group.

Mr. Johnson: May I quickly ask the Minister whether she thinks that creationists or fox hunters would fulfil those criteria? Does she agree that, in principle, there is no reason why Ofcom should not grant them a licence under the order?

Estelle Morris: I knew that I had made a mistake in answering a question on one specific group because it means that another one is brought up. Creationists could apply, but whether a licence is granted would be a matter for Ofcom. However, the question about creationists, as opposed to fox hunters, brings up the more generic issue of religious groups. I have been on Radio Ramadan in Birmingham, which was run on a short-term licence by Muslims in Small Heath adjacent to my constituency. Religious groups are already granted short-term licences for broadcasting, so creationists will be eligible to apply for a community radio licence. However, that will be subject to the non-denigration of other faiths and the other things to which I have already referred.

Finally, it will be for Ofcom to determine costs. I hope that I have answered most concerns of members of the Committee and that the order will receive their approval.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Community Radio Order 2004.

Committee rose at eight minutes past Eleven o’clock.

The following Members attended the Committee:
Begg, Miss Anne (Chairman)
Buck, Ms
Clifton-Brown, Mr.
Connarty, Mr.
Foster, Mr. Don
Gerrard, Mr.
Johnson, Mr. Boris
Lucas, Ian
McDonnell, John
Morris, Estelle
Murphy, Mr. Denis
Russell, Bob
Ryan, Joan
Spink, Bob
Stoate, Dr.

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In May 2001 the Radio Authority announced that it was setting up a pilot study on Access Radio (now known as Community Radio). The Authority selected fifteen groups around the UK to take part, and the first service commenced broadcasting on 28 February 2002. The services were initially licensed for a year, and subsequently extended until 31 December 2003.

The pilot study helped inform the debate on the future licensing of such services while the Communications Act was before Parliament. There are thirteen groups currently involved in the experiment (operating fourteen stations; one group in Manchester operates two ’sister’ services).

The licensing of Community Radio will be a new responsibility for Ofcom when the relevant powers are vested in Ofcom under the Communications Act 2003. The Act allows the Secretary of State for Culture, Media and Sport to introduce Community Radio by Order. This is currently being drafted. It is expected that DCMS will carry out a public consultation on the draft Order later this year.

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