Legal Research

Will Ofcom strip porn channels of their licences?

By scott

Ofcom should really give Bang Media (London) Limited and Bang Channels Limited their own section in their broadcast bulletin, as they are pretty much in every one these days - Issue 157, 158, 163, 164, 165, 166 (They also appeared in 137, 151, 153 ). It is a very impressive run that is in all likelihood going to culminate with the companies being stripped of their licences - they certainly seem set on trying to get Ofcom to do just that - or short of that, imposing a new fine ? in addition to the £157,250 fine imposed on the channels 29 July. This figure represented over 5% of the channel’s aggregate annual revenue.

The breaches against the companies going back to 2008 have concerned the broadcast of unsuitable ?adult sex chat? and ?daytime chat? content and a failure to provide recordings on request to Ofcom - a condition of all broadcasters? licences.
Just what are we talking about? The Ofcom rules in question are:

Rule 1.3: “children protected by appropriate scheduling?;
Rule 1.24: “mandatory access restrictions?;
Rule 1.25: “R18-rated material must not be broadcast?;
Rule 2.1: “generally accepted standards?; and
Rule 2.3: “material that may cause offence must be justified by context?.

Examples of the material that was complained about.

(Adult sex chat)
“The presenter adopted various sexual positions including: bending over while on all fours thrusting her buttocks direct to camera, leaning back with her legs open and moving her body up and down while squatting. While in these positions the presenter tugged at her g-string to reveal some labial detail and pulled at her buttocks to reveal anal detail. During the broadcast the presenter also simulated insertion of a finger into her vagina, touched her thong around her genital area and licked her fingers suggestively.” (Bulletin 158 )

(Adult sex chat)
“During all of the broadcasts the presenter was also shown pulling her buttocks apart to reveal anal and extensive labial detail, spitting on herself, and rubbing salvia onto her breasts and genital area. In addition to this, during the broadcasts of 23 July 2010, 22:03 to 22:30 and 31 July 2010, 01:40 to 02:15, the presenter was shown pouring oil and spitting an unidentified white sticky substance from her mouth onto her breasts and genital and anal area. She then rubbed these substances onto her breasts and genital area. ” (Bulletin 165)

(daytime chat)
” the presenter adopted certain positions including lying on her side, back and front with her legs wide open, lying on her side with one leg raised in the air, and on all fours with her hips and buttocks raised. While in these positions the presenter repeatedly: stroked and touched her body including her crotch area, legs and breasts; moved and gyrated her hips in a sexually provocative way; and lightly jiggled her breasts. The presenter was also shown licking her lips and showing her tongue to reveal a tongue stud. A number of times during the broadcast the camera moved up and down the presenter?s body so that her covered breasts were shown in close up.” (Bulletin 166 )

Bang Channels’ have usually come back with arguments about this being what the audience of its channels expect to find being broadcast on channels of this nature, and more recently they have also asserted their right that freedom of expression outweighed the potential for offence as individuals could exercise their right to simply not view the material in the first place. They note that all set top boxes these days come with parental controls.

Ofcom hit back quoting that research shows that only ?one in three households with multichannel television has set up access controls (32%)”. Ofcom therefore does not consider that the existence of parental controls on set top boxes offers enough protection to under-eighteens from viewing unsuitable material of this nature. Yes, because two thirds either trust their children or can’t be arsed to ‘protect’ them, Ofcom will be defacto nanny. Christ, If I try and watch Dexter during daytime on my Virgin Box, I have to enter a PIN and we don’t have any children in the house TO protect from past the watershed programming.

But, back to Bang Media. Ofcom has frequently found the purpose of the broadcasts ” was clearly sexual arousal” and “to elicit PRS calls”. This is the kind of finding that would leave one to remove hand from head (no innuendo implied or intended) and go ‘Duh’. Now obviously since several of the adjudications related to the unencrypted broadcast of this material between 5.30-9am on Freeview, it is not difficult to see why Ofcom has a problem, and why Bang Channel’s claims of justification are rather poor. However, their case when in relation to material broadcast post watershed seems to me less impressive.

I don’t see how their content here is any more sexual than that I’d see in most Hollywood films ? whose content is of course justified by context and is not at all about sexual arousal. I knew there was a reason I went to see Showgirls.

As I have written before, the whole sector remains a daft one to me. I would actually be quite happy to stick all these channels behind some form of encryption. Indeed unlike Ofcom I don’t actually see why ANY of them need to be broadcast unencrypted. However, by the same token, I also don’t see why if you are broadcasting encrypted as a pay-for-view/subscription, why you shouldn’t be allowed to broadcast actual ?adult sexual material? , as opposed to the ’softcore’ rubbish you are allowed to broadcast under Ofcom rules.

The Ofcom Code - ever helpful - on the one hand states: ?No film refused classification by the British Board of Film Classification may be broadcast unless it has subsequently been classified or the BBFC has confirmed that it would not be rejected according to the standards currently operating? (section 1.20) but then adds BBFC R18-rated films [hardcore porn] or their equivalent must not be broadcast (section 1.25).”

So you can’t broadcast a film unless it has been classified, but then even if it has that is still not good enough. Yes by all means show as much gratuitous violence as you like, but for god sake don’t show people having sex. And let’s not forget that other great aspect of UK law, which sets the age of consent and ability to legally marry at 16, but prevents those very people from legally seeing a ’softcore’ ? never mind hardcore ? film of people having sex until two year later. Yes, you can have sex, but letting you watch other people do it would obviously be corrupting in some way.

This is, of course, another of those ‘protect the children’ moral stances we like to take in the UK. An honourable goal, but one that is often misplaced as evidenced by my comment above and our almost Olympic style leading performance in the teenage pregnancy stakes.

The problem of course is that is often more to do with the views of crusading Daily Mail readers than any rational arguments about protecting children. Indeed it is often more about protecting the embarrassment of some parents rather than any true desire at protecting children.

But this gets away from the premium rate chat services we are talking about in the Bang Media cases. I genuinely didn’t know these channels were on Freeview. They didn’t seem to be when I checked but there were a couple of chat channels that seemed to be exactly the same as Bang Media’s showing exactly the same types of content described by Ofcom in their adjudications. Sadly, I have to report that reading Ofcom’s descriptions of the programmes is far more entertaining and pleasurable than actually watching one.

Bang ? Bang 2010

Feb 2010: Ofcom upheld complaints against interactive adult chat service Bang Babes, broadcast on the Tease Me channel which is situated within the “adult” section of the Sky electronic programme guide. Ofcom found that the content broadcast was so strongly sexual that it would have exceeded the likely expectation of at least the vast majority of viewers and was clearly not justified by the context, and/or that the context constituted “adult-sex” material which should have been broadcast only with mandatory restricted access. This followed a similar adjudication against the channel in October 2008, and Ofcom has thus informed Bang Babes it is considering imposing a fine or other statutory sanction for these repeated breaches of Ofcom’s Broadcasting Code.

March 2010: Ofcom upheld complaints against interactive adult sex chat service programming on Tease Me, Tease Me 2, and Tease Me 3 (operated by Bang Channels Limited). This follows previous breaches of Ofcom’s Broadcasting Code against the channels and Tease Me TV, all run by Bang Media (London) Limited or Bang Channels Limited. Ofcom considers these breaches to be both serious and repeated and will take them together in deciding on a statutory sanction for the broadcasters.

March 2010: Ofcom issued formal Directions to each of Bang Channels and Bang Media in respect of their “Tease Me” TV channels. The Directions require Bang Channels and Bang Media to comply with the Broadcasting Code and other regulatory requirements. Failure to comply with a Direction given by Ofcom could give rise to consideration of a statutory sanction and may result in the revocation of their relevant licences.

May 2010: Ofcom upheld further complaints against programmes broadcast on channels run by Bang Media (London) Limited and Bang Channels Limited. Ofcom issued the companies with a Direction on 12 March 2010 concerning repeated breaches of the Broadcast Code in relation to the broadcast of strongly sexual content. As a result of the serious and repeated nature of the breaches, Ofcom is considering the imposition of a statutory sanction against the companies. The regulator was already considering such a sanction for material transmitted between 20 June and 25 November 2009. http://www.ofcom.org.uk/tv/obb/prog_cb/obb157/

May 2010: Ofcom upheld further breaches of the Broadcasting Code by channels owned by Bang Media (London) Limited and Bang Channels Limited for broadcasting material of a sexual nature, which was inappropriately scheduled and not justified by context. Ofcom is currently considering the imposition of statutory sanctions against the channels for previous breaches of the Broadcasting Code.

July 2010: Ofcom fined Bang Channels Limited and Bang Media (London) Limited (Bang), a total of £157,250 for 14 extremely serious and repeated breaches of the Broadcasting Code. The breaches relate to the broadcast of unsuitable ?adult sex chat? and ?daytime chat? content and a failure on two occasions to provide recordings on request to Ofcom - a condition of all broadcasters? licences. Ofcom can fine Bang £250,000 or 5% of its qualifying revenue - whichever is greater on each occasion that a breach of the Licence has occurred. Whilst Bang did not have any qualifying revenue, the total amount payable by Bang represented over 5% of the its aggregate annual revenue. Ofcom warned other broadcasters who operate in this area that it treats the transmission of this sort of sexual content, without suitable protections, with the utmost seriousness and emphasised that such repeated compliance failures would not be tolerated.

Aug 2010: Ofcom found further breaches of the Ofcom Code made by programmes broadcast on channels licensed to Bang Channels Limited and Bang Media ? who were fined £157,250 for serious and repeated breaches of the Code on 29 July 2010. The breaches again relate to broadcast material of a sexual nature, which was inappropriately scheduled and not justified by context during ?adult sex chat? and ?daytime chat? broadcasts. Bang Media has already been put on notice that these contraventions of the Code are being considered for an additional statutory sanction

AUG 2010: Ofcom upheld further complaints relating to the content of programmes broadcast on channels licenced to Bang Channels Limited. Ofcom found the material shown was so strongly sexual that it would have exceeded the likely expectation of the vast majority of the audience. Ofcom concluded that the content in the three broadcasts was clearly not justified by the context and was in breach of generally accepted standards. It once again stated that Bang Media has already been put on notice that these contraventions of the Code are being considered for an additional statutory sanction.

Aug 2010: Ofcom upheld further breaches of the Broadcasting Code by channels owned by Bang Media (London) Limited and Bang Channels Limited for broadcasting material of a sexual nature, which was inappropriately scheduled and not justified by context.

Full post as published by Information Overload on October 12, 2010 (boomark / email).