Both broadcasters received significant fines and a rap on the knuckles for the way in which competitions on their channels were conducted. Veena Srinivasan reports.
Who: Channel 5, BBC and Ofcom
When: June/July 2007
Law stated as at: 31 July 2007
In a series of scandals, which are enough to give TV quizzes a bad name, four major broadcasters, including Channel 5 and the BBC, have recently been shown to have aired phone-in quizzes that have not always been conducted fairly.
Channel 5 has been fined £300,000 by Ofcom for its breaches of the Ofcom Broadcasting Code (the "Code"); the largest penalty imposed on a public service broadcaster by Ofcom. This was swiftly followed by a total fine of £50,000, which was imposed on the BBC, in relation to its children's programme, Blue Peter.
Channel 5 – Brainteaser
Channel 5 broadcasted a live game show known as "Brainteaser", which was created for Channel 5 by a subsidiary of the independent production company Endemol UK, Cheetah Productions.
It is worth remembering that Ofcom is not charged with the responsibility to regulate production companies, therefore, it is the broadcaster, the entity that operates under a licence from Ofcom, which has the legal responsibility to comply with the Code, pursuant to its licence conditions.
This matter came to light because Channel 5 itself had issued a press release admitting unfair conduct in the context of the Brainteaser programme. As soon as it discovered this unfair conduct, Channel 5 suspended all programmes that included a premium rate telephone services.
It transpired that between the months of January and March this year, there had been 5 instances where Brainteaser had breached the following provision of the Code:
Rule 2.11: Competitions should be conducted fairly, prizes should be described accurately, and rules should be clear and appropriately made known.
On three of the five occasions, the names of the competition winners had been faked, and on two occasions, members of the production staff had posed as winners. When conducting its internal review, Channel 5 also discovered that on 7 separate occasions between January 2003 and November 2006, the winners had been fictitious, as they were, instead, Brainteaser's production staff posing as winners.
Channel 5 revealed that during the period commencing in January 2003 to March 2007, a "formalised" system had developed whereby members of the production team posed as genuine winners, where no winner had been found.
Ofcom considered these to be an indication of longstanding compliance failures.
BBC – Blue Peter
A telephone system failed during a phone-in competition that was featured on the BBC's Blue Peter programme. As it was not possible to have a genuine winner; it was a 'live' broadcast, a child in the studio audience was selected to be the fake winner.
Ofcom held that the BBC had breached Rule 2.11, above, and also:
Rule 1.26: Due care must be taken over the physical and emotional welfare and dignity of people under eighteen who take part or are otherwise involved in programmes […].
The BBC was fined £45,000 in respect of the 'live' broadcast of the programme, and a further £5,000 in respect of the repeat of the programme on CBBC.
The BBC expressed "regret" at Ofcom's decision, but also confirmed that its phone-in competitions would no longer be conducted in such a way.
The BBC Trust considered these breaches to be:
"particularly serious as they resulted in children being misled to participate in a competition they had no chance of winning and in a child in the studio being involved in deceiving the audience".
We understand that the Trust has since commissioned a review of the use of premium-rate services in BBC programmes.
Why this matters:
It was not only the BBC and Channel 5 that have been named and shamed:
Also in July, a fine was issued against Eckoh, the company that ran Channel 4's Richard & Judy quiz, "You Pay We Say", by ICSTIS, the premium rate services regulator, soon to be officially known as PhonePayPlus. This matter has been referred to Ofcom and could result in Channel 4 also potentially being in breach of Rule 2.11.
The ITV breakfast broadcaster's phone-in fiasco erupted following an investigation by BBC1's Panorama, which alleged that Opera Interactive Technology, the entity that provided the phone-in competition service to GMTV, had effectively cost participants millions over a four-year period. As a result, Paul Corley, GMTV's managing director, has resigned from his position.
Richard Ayre's review
It is not surprising then that Ed Harris, the Ofcom chief executive, has reported that the recent inquiry into premium-rate telephone services by Richard Ayre, former BBC news deputy, has revealed a systematic failure of compliance.
Mr Ayres warned that:
"If broadcasters want audiences to go on spending millions calling in, they need to show that they take consumer protection as seriously as programme content".
He has recommended that broadcasters' licences be changed so that they attract clear and broad responsibility for the use of premium rate services and other means of consumer contact. Ofcom has indicated that it considers this to be a "sensible and proportionate response".
Ofcom is expected to publish its report on participation TV shortly.
Future of TV quizzes
It looks like TV quizzes are being attacked from all angles. You many have seen our article in this year's April update, where we reported that, in the Gambling Commission's view, in the context of most TV quizzes as currently configured, an alternative web entry route will not satisfy the Gambling Act 2005's rules on alternative methods of entry, which save an otherwise pay to enter mechanic from being an illegal lottery.
What is the future of premium rate phone-in TV quizzes?
Broadcasters are going to have to tread a tricky line to keep which of the following regulators on side:
c) the Gambling Commission; or
d) all three of the above.