Précis - Ofcom has this month imposed financial penalties on several companies for breaches of the UK Code of Broadcast Advertising ("BCAP Code") and the Broadcast Code.

What?  After finding the activities of several companies to be in breach of the Broadcast Code and BCAP Code earlier this year, Ofcom has recently determined the amount of the financial penalties payable for these breaches.  These penalties ranged between £4,000 and £40,000, and so broadcasters should take care to avoid falling foul of these Codes.

So what?

Broadcast Code

A penalty of £40,000 was imposed on E! Entertainment UK Limited for broadcasting consecutive television episodes of "Girls of the Playboy Mansion" pre-watershed on 27 December 2011.  This was found to be in breach of Rule 13 of the Broadcast Code, which requires that children be protected by appropriate scheduling from material which is unsuitable for them.  The fact that this broadcast took place pre-watershed in the Christmas holidays led Ofcom to impose a serious financial penalty.

A penalty of £4,000 was imposed on Radio Asian Fever Community Interest Company relating to the broadcast of two radio episodes of "Sister Ruby Ramadan Special 2011".  These included statements that criticised homosexuality and mixed-faith marriages.  Ofcom found this to be in breach of the Broadcast Code, specifically Rule 3.1 (which prohibits material likely to encourage or incite the commission of crime or lead to disorder), Rule 2.4 (which prohibits material which condones or glamorises violent, dangerous or seriously antisocial behaviour and is likely to encourage others to copy such behaviour), Rule 2.3 (which requires broadcasters to ensure that material which may cause offence, such as discriminatory treatment or language for example on the grounds of religion and sexual orientation, is justified by the context), and Rule 4.1 (which requires broadcasters to exercise the proper degree of responsibility regarding the content of religious programmes).

BCAP Code

A penalty of £20,000 was imposed on Sunrise TV Limited for encouraging viewers of a programme entitled "Beauty Simplified" to call a premium rate telephone number costing £1.50 per minute to receive advice about beauty and well-being.  Ofcom concluded that the programme was "participation television", in which the editorial content is directed at generating revenue through viewers' phone calls.  Ofcom considers this type of programme to be long-form advertising and so it must comply with the BCAP Code.  Ofcom held this breached Rule 2.1 (which requires advertisements to be obviously distinguishable from editorial content - the audience should quickly recognise the message as an advertisement), Rule 11.2.3 (which prohibits teleshopping for medical treatments), and Rule 11.13.1 (which prohibits advertisements from offering to prescribe or treat people remotely).

Ofcom's powers

The sanctions available to Ofcom include a decision to:

  • Issue a direction not to repeat a programme or advertisement;
  • Issue a direction to broadcast a correction or a statement of Ofcom's findings which may be required to be in such form, and to be included in programmes at such times, as Ofcom may determine;  
  • Impose a financial penalty;
  • Shorten or suspend a licence (only applicable in certain cases); and/or  
  • Revoke a licence (not applicable to the BBC, S4C or Channel 4).

Ofcom may, following due process, impose a sanction if it considers that a broadcaster has seriously, deliberately, repeatedly, or recklessly breached a relevant requirement.   In determining the level of any penalty, Ofcom may take into account:

  • The deterrence effect of the penalty;
  • The degree of harm, whether actual or potential, caused by the contravention including any increased cost incurred by consumers or other market participants;  
  • The duration of the contravention;
  • Any gain (financial or otherwise) made by the regulated body in breach (or any connected body) as a result of the contravention;  
  • Any steps taken for remedying the consequences of the contravention;
  • Whether the regulated body in breach has a history of contraventions (repeated contraventions may lead to significantly increased penalties);  
  • Whether in all the circumstances appropriate steps had been taken by the regulated body to prevent the contravention;
  • The extent to which the contravention occurred intentionally or recklessly, including the extent to which senior management knew, or ought to have known, that a contravention was occurring or would occur;  
  • Whether the contravention in question continued, or timely and effective steps were taken to end it, once the regulated body became aware of it; and
  • The extent to which the level of penalty is proportionate, taking into account the size and turnover of the regulated body. In accordance with the Penalty Guidelines, Ofcom may increase the penalty where a licensee has failed to co-operate with Ofcom's investigation.

Summary

These decisions show that Ofcom is willing to impose large penalties for a variety of different breaches of the Broadcast Code and BCAP Code.