Adjudication of Ofcom Content Sanctions Committee
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Ofcom Content Sanctions Committee Consideration of Digital Television Production Company Limited (XplicitXXX) For Programme Code breaches in showing sexually explicit promotional material free to air particularly at a time when it might be viewed by children but also when it might cause offence to others On April Decision to Fine £, Summary of Decision For the reasons set out in full in the Decision of the Ofcom Content Sanctions Committee, the Committee found as follows: Digital Television Production Company Limited (“DTPC”) is licensed by Ofcom to run the satellite service “XplicitXXX” (formerly Pout/Pout Uncut. It transmits adult material which, at the time of the offence, was encrypted and available only to subscribers after . hours. On April from : to :, DTPC broadcast in a free to air slot, a repeating six minute loop of material promoting its encrypted transmissions (“freeview”). The promotional material was itself sexually explicit. It showed semi- and near- nudity in explicitly sexual situations; showed simulations of intercourse, oral sex, masturbation and orgasm; featured captions with explicit sexual language and captions promoting amongst other available films one entitled Anal Cream Pie. XplicitXXX had admitted and Ofcom had recorded the following breaches of the Programme Code: sections . (the General Requirement for Taste and Decency), . (Family Viewing and the Watershed) and . (Sex and Nudity). The matter was also referred to the Content Sanctions Committee (“the Committee”) for consideration of a statutory sanction. The Committee heard representations from DTPC before deciding whether to impose a sanction. The Committee viewed the Code breaches as serious. Its greatest concern was the risk that a child could see such material. The material was also unsuitable for transmission in the period after the watershed (. hours). The material was not borderline, but very clearly breached the Code. Ofcom has a statutory duty to protect the young and apply overall standards with regard to harm and offence. The Committee noted DTPC’s representations that the Code breaches were inadvertent rather than deliberate. On that basis, the Committee concluded that the error was the result of management failure to institute adequate training and operational procedures necessary to avoid the risks of a child viewing this material and effectively to review transmissions as they were made in order to detect and immediately correct any mistakes. This was because, in the Committee’s view, DTPC had adopted an approach to its broadcast material that was excessively complacent, unfocused and insufficiently protective of the interests of children. Any broadcaster licensed to transmit adult encrypted material which is restricted to subscribers but has free to air promotions, has an obligation to ensure that no sexually explicit material is shown even inadvertently in free to air promotions. Any such infringement is not to be tolerated. The Committee took into account as aggravating the seriousness of the present Code breaches previous, recent, comparable infringements by DTPC in relation to XplicitXXX, and the fact that DTPC had been given a previous written warning from Ofcom that any further recurrence might result in a statutory sanction. The Committee took into account as mitigating the breaches DTPC’s frank admission that it had breached the Code and the contrition it expressed; the efforts it had made since the matter was brought to its attention to prevent any further recurrence, particularly the appointment of a channel manager with responsibility for compliance. The Committee nevertheless noted that there appeared to be a continuing lack of full formal compliance training and operational procedures to prevent or detect and correct such mistakes. The Committee also noted that Ofcom had received no complaint from any member of the public about the “freeview” broadcast on the April . Ofcom became aware of the issue through an informal approach from a competitor of DTPC. The Committee determined that the Code breaches were so serious that a sanction by way of a financial penalty was necessary. The applicable statutory maximum was a fine of £,, payable to Ofcom for forwarding to The Treasury. The Committee gave serious consideration to a fine in six figures which it considered may become the norm for such serious Code breaches. However, it took account of DTPC’s representations about its financial position and the compliance steps it had taken and concluded that on this occasion, a six figure sum would be a disproportionate penalty . It concluded that in view of the seriousness of the infringement and taking into account all the circumstances, an appropriate fine was £,. Decision The Ofcom Content Sanctions Committee met to hear the submissions of Digital Television Production Company Limited (“DTPC”) before considering whether to impose sanctions on it for breaching the relevant Programme Code (formerly the Programme Code of the Independent Television Commission) by transmitting free to air sexually explicit material on its XplicitXXX service on April from . to .. The need to consider sanctions DTPC is licensed by Ofcom to run XplicitXXX as a television service transmitting adult material in encrypted form to subscribers. The licence requires DTPC to comply with the Code. It must therefore ensure that no explicit images are included in unencrypted material transmitted before the : ‘watershed’, and that any material transmitted in free to air (promotional) slots is suitably edited in accordance with Ofcom’s Programme Code. It is therefore to be expected that any material transmitted by XplicitXXX on a free to air basis in order to promote what is available in encrypted form to subscribers, should not itself be sexually explicit. On April from : to :, XplicitXXX broadcast on a free to air basis a continuous loop of promotional material that was itself sexually explicit. It showed semi- and near- nudity in explicitly sexual situations; showed simulations of intercourse, oral sex, masturbation and orgasm; featured captions with explicit sexual language; and captions promoting other available films one entitled Anal Cream Pie. DTPC readily and frankly admitted that this promotional material as broadcast that evening by XplicitXXX infringed Ofcom’s Programme Code in force at the time under the Communications Act , section and Schedule , paragraph and in particular, the provisions of that Code, sections . (The General Requirement for Taste and Decency), . (Family Viewing and the Watershed, and . (Sex and Nudity). Ofcom accordingly found DTPC in breach of the Code and referred the matter for consideration of sanctions to the Ofcom Content Sanctions Committee. The Ofcom Content Sanctions Committee met on Tuesday July to hear representations from DTPC in relation to the possible imposition of sanctions for breaching the Code. Relevant considerations The Sanctions Committee regards the admitted breaches of the Code as serious. Its gravest concern is the fact that the material could easily be viewed by a child, as DTPC readily conceded, but it also had concerns about causing offence to others. The material was not a borderline example of what could or could not be shown on a free to air promotion for the channel, but a very clear breach of the relevant provisions of the Code. It was rightly acknowledged by DTPC to be in this respect “unacceptable”. The Committee emphatically rejects DTPC’s contrary submission to the effect that the breaches were insufficiently serious to warrant a financial penalty. The Sanctions Committee noted DTPC’s representations that the transmission of this material on a free to air basis both before and after the watershed was not a deliberate and cynical flaunting of the Code to try to increase XplicitXXX’s market share in the increasingly competitive adult market, that XplicitXXX’s market share did not in any event increase after April and that it remains one of the smallest of the or so channels competing in that market. The Committee equally noted the assurances given on behalf of DTPC that the true reason that this material had been broadcast on a free to air basis was that the regular scheduler was on holiday. A junior substituting for her mistakenly confused two tapes in identical containers, with identical titles and identification numbers, and selected for transmission before the watershed, a tape that should only have been shown during the time when the encrypted service was being broadcast. Having heard DTPC’s submissions, the Committee concludes that the cause of the confusion was DTPC’s lack of appropriate management control. This was evidenced by negligently failing internally to devise, implement and document effective training and operational procedures to avoid the risk of a child viewing this material. It was also evidenced by failure to undertake an effective scheme of reviewing material as and when it was being broadcast so that if such material inadvertently became available to view by a child, the error was immediately detected and immediately corrected. In this case, these failures were aggravated by the fact that the material had continued to be shown repeatedly over a one and a half hour period, both before and after the watershed. The Committee concludes that these failings in turn resulted from an approach on the part of DTPC that was excessively complacent, unfocused and disregarding of the interests of children. The Committee emphatically rejects DTPC’s submission that failing to prevent this material being available to be viewed by a child was the sort of mistake not uncommon in any start-up company, and the implication that it ought to be tolerated. Any broadcaster licensed to broadcast adult material encrypted and restricted to subscribers has a corresponding obligation to ensure that no sexually explicit material is shown, even inadvertently, on a free to air slot which is freely accessible to children and others. Ofcom has a statutory duty pursuant to the Communications Act , section to ensure that persons under the age of are protected and to have regard to audience expectations for this type of service. Such infringements are not to be tolerated. Moreover, there have been previous, recent, comparable infringements by XplicitXXX. Viewers had previously complained of the transmission of sexually explicit promotional material free to air on this channel on December . XplicitXXX explained on that occasion, that there had been a technical error and assured Ofcom that this would not recur. However, it did recur on , and December , and briefly on and January . Ofcom again accepted the explanations of technical error, but in February , Ofcom gave DTPC written warning that the transmission of such explicit sexual material unencrypted was unacceptable and demonstrated a worrying failure in compliance procedures. It made it plain to DTPC that any further recurrence might result in the consideration of a statutory sanction. In these circumstances, the Committee found it surprising that DTPC had made insufficient procedural changes after those earlier breaches to prevent further occurrences. DTPC submitted however that the Sanctions Committee was not entitled to take previous Code breaches into account but should confine itself to the breaches which occurred on April . The Committee agrees with this submission to the extent that it should not now impose any sanction for the previous infringements. However, the Committee would reject any submissions that it is not entitled to take the previous infringements into account as an aggravating circumstance relevant in considering whether to impose a statutory sanction for the infringements on April , and if so, at what level. Ofcom’s Outline Procedures for Statutory Sanctions in Content Cases (a copy of which was sent to DTPC before the hearing), clearly states that Ofcom will impose a statutory sanction not only if it believes that a broadcaster has deliberately or seriously breached the terms of its licence conditions or Ofcom’s statutory Codes, but also if Ofcom believes that it has done so repeatedly. The Committee accepts and also takes into account the contrition expressed on behalf of DTPC, and the efforts it has taken since April to prevent any further recurrence, particularly the appointment of Mr James Wright as channel manager with direct responsibility for compliance. Nevertheless, the Committee was surprised to be told that even now XplicitXXX still lacks full and formal compliance training routines and written procedures devised to prevent, or failing that, to detect and correct mistakes being made when regular staff are absent or in any other circumstance. The Sanctions Committee takes into account that Ofcom had received no complaint from any member of the public with regard to April , notification to Ofcom having been by a competitor of XplicitXXX. Appropriate sanction Taking all of the above considerations into account, the Sanctions Committee determines that a sanction by way of fine is necessary, that any greater sanction by way of revoking the licence is not yet necessary and that DTPC’s suggestion of the lesser penalty of requiring XplicitXXX to broadcast a statement of Ofcom’s finding would in the circumstances be inappropriate. By the Communications Act , section (), a financial penalty for DTPC in this case may not exceed the greater of £, or five per cent of XplicitXXX’s qualifying revenue for . The Committee accepts the figure given by DTPC as the relevant qualifying revenue for the service and consequently, the maximum fine that could be imposed in this case is £,. Once received by Ofcom, any fine is forwarded to The Treasury. On the view the Committee took of the seriousness of the Code breaches that had occurred and of all the other considerations mentioned above, the Committee gave very serious consideration to a fine in six figures, which it considered could well become the norm for such breaches. However, the Committee had been urged to take into account the information which it also accepted, that in the XplicitXXX service suffered a substantial loss. The Committee therefore enquired further, and was told and accepts that the qualifying revenue accrued entirely in the second six months of after the start of transmissions by XplicitXXX in July under its then name, Pout Uncut; the figures given for the accounts of the Group of which DTPC forms part for the year to March ; and the figures given for the turnover from all of DTPC’s active services. DTPC submitted that the fact that XplicitXXX was a loss-making channel run by a loss-making owner meant that a large fine would cripple a start- up business and would accordingly be a disproportionate penalty. The Committee carefully considered this submission and agrees it has some force. Therefore, on this occasion, the Committee decided not to impose a fine at the higher level likely to become the norm for such cases in the future. It concludes that on this occasion, the fine that would register the seriousness of exposing a child to the risk of viewing such sexually explicit material, as well as the potential offence to others, whilst taking into account all the circumstances outlined above, and remaining proportionate, is £,. Conclusion For seriously breaching the Code by transmitting sexually explicit material in its XplicitXXX service on April on a free to air basis from . to . hours, DTPC is fined £,.