Ofcom fines Discovery for pre-watershed graphic material

Ofcom has fined Discovery Communications Europe £100,000 for broadcasting unsuitable and violent graphic material on television before the watershed during the school holidays. The fine follows Ofcom’s January 2014 adjudication on Deadly Women, a true-life crime series about female killers, which Ofcom ruled to be in serious breach of the Broadcasting Code’s rules on children, unjustified violent material and inappropriate scheduling.

Background

Investigation Discovery, a channel dedicated to documentaries on crime and criminal investigations and operated under a licence held by Discovery Communications Europe Ltd, broadcast eight episodes of Deadly Women in August 2013 at various times during the morning and afternoon. The episodes were each 60 minutes in length and relayed the crimes of three different female murderers through dramatic reconstructions and interviews with criminal behaviour experts and investigators. Ofcom was particularly concerned by the graphic detail of a number of the reconstructions, some of which included prolonged and distressing images of torture, murder and mutilation, including knife attacks, whippings, electrocution, poisoning, beatings with blunt instruments, flogging, punching, as well as dismemberment of a corpse with a circular saw and a dramatised image of an eyeball rolling across the floor. Many of the reconstructed scenes were accompanied by chilling sound effects. In nearly all cases, the ultimate outcome of the violence was death. The graphic nature of the reconstructions was further exacerbated by the content of the commentary and statements made by interviewees, which were very detailed and protracted.

Ofcom’s adjudication

In its January 2014 decision, Ofcom stated that, as the episodes were broadcast before the watershed during the school holidays, there was a strong likelihood that children would be available to view them, and the broadcasts were highly likely to have caused distress to younger viewers. In Ofcom’s view, the extended duration of many of the reconstructions and the levels of violence depicted in the broadcasts meant that this series of programmes was entirely unsuitable for broadcast during the daytime in the form in which they were presented. Ofcom found that the level of on screen violence had not been appropriately limited and was not justified by the context. Contrary to Discovery’s argument that the programmes addressed issues around abusive relationships and the failure of authorities to act, Ofcom ruled that the focus of the material was not on these complex issues, but that the primary purpose of the programme was to focus in extreme detail on acts of violence and their after-effects for the entertainment of an adult audience.

Ofcom held that the broadcasts breached the following rules of the Broadcasting Code:

• rule 1.3, which requires that “children must be protected by appropriate scheduling from material that is unsuitable for them”;
• rule 1.11, which states that “violence, its after-effects and descriptions of violence, whether verbal or physical, must be appropriately limited in programmes broadcast before the watershed (in the case of television) … and must be justified by the context”; and
• rule 2.3, which requires that: “in applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context … Such material may include, but is not limited to, … violence, sex … [and] violation of human dignity.”
• Discovery accepted that it had breached the Code and apologised for airing the programme in an inappropriate time slot. It explained that, unlike other series of Deadly Women, series six had not been correctly certified as post-watershed, rather “an error of judgement by a less experienced member of the re-versioning team during the certification process” meant that it was accidentally certified as suitable for audiences with a low child index.

Ofcom’s sanction decision

In considering a statutory sanction, Ofcom considered whether the breaches of the Code were serious, deliberate, repeated or reckless. Ofcom stated that the breaches of the Code were serious because of the repeated broadcast in the daytime during the school holidays of prolonged graphic and disturbing dramatic reconstructions of torture, mutilation and murder. The broadcasts were highly unsuitable for children and were likely to cause offence based on the programmes’ treatment of murder, torture and associated acts. The decision for a statutory sanction, according to Ofcom, was compounded by the fact that the pre-watershed broadcasts were made in error, as accepted by Discovery, and that the error was blatant and repeated. The breach was spread across eight episodes of the series shown on 16, 18 and 20 August 2013, demonstrating Discovery’s failure to ensure that it had robust compliance procedures in place.

Discovery’s representations

Discovery accepted its broadcasting of the programmes at the relevant times as a significant breach of the Broadcasting Code and apologised “unreservedly”. Discovery submitted that, when considering whether to impose a statutory sanction, Ofcom should acknowledge that as soon as Discovery was alerted to the complaint, and the potential breach of the Code, it withdrew the relevant material and re-certified the programme as post-watershed. Discovery maintained that its actions ensured that “the duration [of the breach] was minimised as much as possible and any children in the potential audience would be provided adequate protection”. In light of various precedents, Discovery also considered that the proposed fine of £100,000 was disproportionately high.

Appropriate type and level of sanction

Ofcom considered that, on its own, a direction to broadcast a statement of its findings was not a sufficient statutory sanction. The breaches were serious and repeated, and they did not occur in an isolated programme, but all three rules of the Broadcasting Code were breached in each of these eight episodes and as such they warranted the imposition of a statutory sanction. Ofcom observed that a statement of its findings in combination with a fine would act as a more effective deterrent to discourage the licensee from contravening the Broadcasting Code in a similar manner in future.

Beyond the obvious breaches of the rules 1.3, 1.11 and 2.3, Ofcom found that Discovery failed to have any regard to its responsibilities towards a potential child audience and the need to limit the violence appropriate for the time the broadcasts were shown. Ofcom also highlighted Discovery’s failure to spot this series of ongoing breaches, as Discovery only became aware of the potential breaches on being alerted of this by Ofcom in August 2013. This, in Ofcom’s opinion, demonstrated either the absence or the failure of an appropriate system, which would have alerted senior members of staff to the issue as it was occurring and prevented the later broadcasts of this potentially harmful and offensive content.

Factors in determining amount of fine

Ofcom took account of all relevant factors in considering the appropriate amount for a fine for the Code breaches in this case, which included the degree of harm (whether actual or potential) caused by the contravention. In Ofcom’s opinion, the broadcasts contained numerous depictions of extremely graphic violent content, likely to have caused serious distress to any child viewers, and caused grave concern to parents or carers of any children watching. Ofcom also considered the duration of the breaches and noted that the breaches related to material included in eight one-hour-long broadcasts, transmitted on three separate days across a five-day period.

Ofcom then considered whether Discovery had a history of contravention. Whilse the Investigation Discovery service did not have a history of contraventions, Ofcom noted that Discovery operated a centralised compliance unit and Ofcom had made several breach findings in relation to other Discovery services during the period January 2008 to 20 January 2014. All of these breaches related to broadcasting offensive language before the watershed. For example, the programme UK’s Toughest Jobs (Discovery +1, 20 October 2007 4.00 p.m. – Broadcast Bulletin 100) contained the words “f*ck” and “f*cking” before the watershed, and Ofcom found this to be in breach of rule 1.14, which states that “the most offensive language must not be broadcast before the watershed”. Ofcom also referred to a number of other examples of inappropriate language used in Discovery broadcasts. Ofcom considered it appropriate in the circumstances, when assessing sanctions against one service, to take into account the compliance records of all the services.

Another contributing factor was a later breach by Discovery Communications Europe (reported in Broadcast Bulletin 247, 3 February 2014): the broadcast of an episode of Embarrassing Bodies on Discovery’s TLC Poland on 25 July 2013. The programme featured full-screen and close-up images of a vaginal examination during which a speculum was inserted and removed. Ofcom found the programme, broadcast at 4.00 p.m., to contain material unsuitable for children and concluded that it was not appropriately scheduled and in breach of rule 1.3.

Another aggravating factor was the fact that Discovery did not take sufficiently timely steps to prevent a subsequent and similar breach of the Code. On 24 September 2013, Discovery broadcast Scorned: Crimes of Passion at 5.00 p.m. on Investigation Discovery. On 3 February 2014 Ofcom found that the programme (which contained various scenes of sexual and violent behaviour) was unsuitable for children and had not been appropriately scheduled and was in breach of rule 1.3.

In taking into account all relevant circumstances, including the need to achieve a suitable level of deterrence and the serious and repeated nature of the Code breaches, Ofcom considered that a penalty of £100,000 would be appropriate in this case, while at the same time noting this to be the first statutory sanction imposed by Ofcom on Discovery.

Comment

Ofcom acknowledged that the Broadcasting Code does not prohibit programmes about real-life crimes from being shown before the 9.00 p.m. watershed. Nonetheless, Ofcom emphasised that, even though a programme may be preceded by pre-broadcast warnings, graphic levels of violence in the form in which Deadly Women was presented will be considered entirely unsuitable for broadcast during the daytime.

Broadcasters should note that the number of complaints is not in itself an indication of the potential harm that can result from a breach of the Code: only one complaint was received by Ofcom about the Deadly Women series. Besides, it was Ofcom’s statutory duty to ensure that broadcast standards are maintained, irrespective of the number of complaints received.

In accordance with the penalty guidelines, Ofcom must, when considering a statutory sanction, take account of relevant precedents set by previous cases. While Ofcom found that in this instance there were no directly relevant precedent cases in terms of sanctions that deal with the same range of breaches, Ofcom referred to two decisions that included similar breaches of some of the same Broadcasting Code rules:

• Ofcom’s decision against CSC Media concerning its service Scuzz TV18 – CSC was fined £10,000 for a serious breach of rules 1.3, 1.10, 1.14, 1.16, 1.21 and 2.3. The sanction related to the broadcast of the music video for Undead by the band Hollywood Undead. The video was broadcast at 8.40 p.m. and contained repeated use of the most offensive language, close-up images of naked breasts and buttocks, images of semi-naked female performers dancing provocatively while simulating sex acts and what appeared to be illegal drug paraphernalia and consumption.
• Ofcom’s decision against E Entertainment concerning its service E! – E Entertainment was fined £40,000 for serious and repeated breaches of rule 1.3 during the broadcast of episodes of the reality television series Girls of the Playboy Mansion. Ofcom found that the programme contained material of a highly sexualised nature and had been shown repeatedly throughout the day on a Christmas bank holiday.

By contrast, the level of the fine in the Discovery case is notable. Ofcom distinguished the above sanctions cases from this case in that they included either cumulative breaches of the same single Code rule involving programmes in the same series broadcast on the same day (E Entertainment) or several breaches resulting from a single broadcast (CSC Media). In the present case, however, there were breaches of the same three Code rules, which occurred in each of the eight separate programmes shown over a five-day period. The serious and repeated nature of the breaches – in cumulative combination with a history of breaches relating to the broadcast of the most offensive language before the watershed – contributed to the increased level of fine imposed on Discovery.

Juliane Althoff, Trainee Solicitor, Michael Simkins LLP