Sumo TV - User Generated Content
Andy Milonakis clip, 6 July 2007, 23:46; and Parent/Carer and child clip, 22 July 2007, 00:34
Introduction
Sumo TV is the broadcast arm of a website called Sumo.tv. Contributors to the website are able to submit material, which may end up on the digital television service. Submissions range from home-produced material recorded on mobile phones or webcams through to items from professionally-produced programmes and music videos from around the world.
Two viewers complained about two separate items of user-generated content shown on Sumo TV, as described below.
6 July 2007 , 23.46, Andy Milonakis
This sequence involved what appeared to be a webcam performance featuring a person called Andy Milonakis. This person appears to be an adolescent, although the presenter introducing the item said that he was actually 30 years old. In this video, he performed a rap, which included a steady stream of the strongest language and graphic sexual references and which lasted over three minutes. An extract, from the 500 word rap, follows:
“…I’m a little boy and I got little toys but I’m in a big world, yo. I [N4BSK] big girls coz I like earthquakes…my [N4BSK]ing flows run through you…I give you a piggy back ride if you [N4BSK]ing wanna do some fun. I sniff some cocaine off your mother’s navel…my son is ugly, he looks like my nipple, I [N4BSK]ed him in the [N4BSK] now he’s cripple and he’s in a wheelchair…I [N4BSK]ing gave him some weave, I gave him some beeve on his sixteenth birthday yo but he’s still gay, he likes to [N4BSKx2] a lot, yo that’s alright I feed him mine…I’m gunna holler coz I’m getting [N4BSK]… all the [N4BSK]ing inmates are gay. …[N4BSK] you [N4BSK], [N4BSK] you…[N4BSK] it I’ll make you a [N4BSK]…oh my god I’m gunna lather myself…”
One viewer, believing Andy Milonakis to be an adolescent, complained that this material, which included explicit sexual references, some appearing to provide graphic descriptions of under-age sex, was inappropriate for broadcast.
Ofcom asked Sumo TV to respond to complaints with regard to Rule 2.3 (“In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context”).
Context includes various factors such as: the editorial content of the programme; the service on which the material is broadcast; the time of broadcast; the degree of harm or offence likely to be caused; the likely expectation of the audience; the extent to which the nature of the content can be brought to the attention of the potential audience; and the effect of the material on viewers who may come across it unawares.
22 July 2007 , 00:34 , Parent/Carer and Child
This sequence appeared to be a mobile phone video of an adult frightening a young child (approximately five years old). The sound quality was poor, but the adult appeared to ask the child: “…do I know it’s so scary?” The adult then tried to terrify the child by pulling faces, yelling and shrieking. The child was clearly extremely distressed and started screaming, crying and at one point attempted to run away. In the final moments, the child was seen holding his ears, in a gesture which suggested a need to comfort himself, and sobbing.
One viewer complained that this material could be said to be condoning child abuse, and was inappropriate for broadcast.
Ofcom asked Sumo TV to respond to the complaints with regard to the following Code Rules:
- Rule 1.26[(-1-)](“Due care must be taken over the physical and emotional welfare and the dignity of people under eighteen who take part or are otherwise involved in programmes. This is irrespective of any consent given by the participant or by a parent, guardian or other person over the age of eighteen in loco parentis”);
- Rule 1.27 (“People under eighteen must not be caused unnecessary distress or anxiety by their involvement in programme or by the broadcast of those programmes”); and
- Rule 2.3(generally accepted standards; justification by context).
Response
Sumo TV responded to the concerns raised over the broadcast of these two items as follows.
6 July 2007 , 23.46, Andy Milonakis
The broadcaster argued that the concerns over the material were related to the fact that the complainant had assumed that Andy Milonakis was a “boy…no older than 14”. Mr Milonakis was in fact considerably older[(-2-)], and a well-known figure in this particular genre of entertainment. Sumo TV acknowledged that the language used was explicit and was clearly intended to create a reaction in the audience. It considered that some would find it humorous, others would find it tediously repetitive in its profanity. It said that the “rap” was not concerned with under-age sex and, in its opinion, to suggest otherwise clearly acted “…so as to distort the nature of the artistic work”.
Sumo TV went on to say that the text of the “rap” was clearly addressing a whole range of individuals, their proclivities and religions, and “was patently non-specific”. It believed the material was entirely justified by the context since, in the nature of its programming, Sumo TV frequently looked to give a platform to subjects popularly described as an “internet phenomena”. The broadcaster said that, given the time of the broadcast, the context of the programme and having regard to the above comments the content was not beyond the bounds of generally accepted standards.
22 July 2007 , 00:34 , Parent/Carer and Child
Sumo TV responded, with regard to Rule 1.26, that the sequence depicted “…an adult pretending to act in a ‘scary’ manner”. It said the words “…do I know it’s so scary?” clearly indicated that the adult had been engaged in a playful act. This was reflected in the adult putting his tongue out of his mouth, holding back his ears and having widened eyes. In Sumo TV’s view, “…it was clearly the case that the adult had been engaged in a type of humour witnessed in households throughout the UK , day in and day out”. There was no physical contact between the adult and the child and nor did the adult at any time raise his voice or otherwise act in a menacing manner toward the child.
In this context, Sumo TV argued that the broadcast of the clip did not indicate a lack of due care over the physical and emotional welfare of the child. To imply that there was, it said, would be to suggest that behaviour of this type – misguided though it may be on occasion – should be banned throughout the UK . Sumo TV also noted that this particular sequence followed immediately after another sequence which showed a sleeping adult being suddenly woken up by someone who was making “scary” noises. The two sequences were, it said, therefore complementary to one another. This, the broadcaster believed, emphasised that the intention behind the item was humorous.
Where Rule 1.27 was concerned, Sumo TV stated that any perceived distress or anxiety on the part of the child would be entirely consistent with the intention to show a humorous role play between adult and child. In this context, it believed, that the apparent fright of the child was entirely necessary and consistent with its dramatic purpose.
The broadcaster also believed that the sequence complied with Rule 2.3 in that it was justified by its context. The style of the programme was well known to, and popular with, Sumo TV’s viewers; it was scheduled well after the watershed; and viewers were given information about the programme before it was shown.
Decision
The Code was drawn up by Ofcom to secure the standards objectives set out in section 319 of the Communications Act. These standards apply to all broadcast material whatever its origination: whether material is user-generated content or derived from more traditional sources. Broadcasters should therefore apply the Code equally and in the same way to all material broadcast on its licensed television and radio services, including material originating as user-generated content on the internet. Ofcom expects all such material to be complied with the standards required by the Code.
Notwithstanding this, Ofcom acknowledges and welcomes the fact that, to some extent, user-generated content provides opportunities for a more interactive experience for viewers and listeners, offering the ability to contribute more to programming than was previously possible. However, broadcasters remain responsible for ensuring with user-generated broadcast content, as with other material, that it conforms to the Code and that checks are made as necessary to ensure that any appropriate consents are obtained, especially regarding the involvement of under-eighteens[(-3-)].
Broadcasters are required to take due care to protect the interests of anyone under eighteen who appears, or participates, in any respect in its programmes. This applies whether the material is originally produced, or is acquired from another source. In Ofcom’s view, concern for the child’s welfare should be at the heart of the broadcaster’s consideration when producing or acquiring content and this is made clear in the introduction to the guidance on this specific Code Rule.
Moreover, responsibility for compliance rests with the broadcaster, who will need to decide what measures are appropriate in the particular circumstances of individual programmes, genres and formats. Relevant factors also include the participant’s age, maturity and capacity to make judgements about participation and its likely consequences.
Central to Rule 1.26 is the concept of “due care”. Here “due” is used in the same way as in other areas of the Code. It indicates that the level of care must be “appropriate to the particular circumstances”. It is for the broadcaster to judge what is appropriate in each case to ensure compliance with the Code.
Rule 1.27 states that under-eighteens “must not be caused unnecessary distress or anxiety by their involvement in programmes or by the broadcast of those programmes”.
Broadcasters who transmit user-generated content have no direct control over the making of content featuring under-eighteens. It is Ofcom’s view that controls which can be exercised by the broadcaster over the making of material submitted to the website are clearly limited. Nevertheless, when such material is subsequently considered for broadcast, the broadcaster needs to be mindful of the appropriate Rules. In considering these Rules, the broadcaster must take into account whether it can reasonably be inferred from the material that it may have been acquired at the expense of the distress and anxiety of any participants aged under eighteen. Broadcasters should also take into account whether the broadcast of the material might cause further distress and anxiety to the participants, for example, through the possibility of bullying. In these circumstances, the broadcaster may be able to fulfil its duty of due care required by Rule 1.26 and its obligations under Rule 1.27 by choosing not to broadcast the material.
To help ensure fair and just treatment of individuals, for those under sixteen, the Code (Practices to be followed: 7.4) requires that broadcasters should normally obtain consent from a parent, guardian or other person over eighteen or in loco parentis. However, the Code makes clear that the obligations under Rules 1.26 and 1.27 apply irrespective of such consent.
6 July 2007 , 23.46, Andy Milonakis
Ofcom considered this sequence against Rule 2.3 of the Code (generally accepted standards; justification by context). The material broadcast included repeated and excessive strong language, with graphic references to incest, anal sex and illicit drug use. This had the potential to cause offence. Ofcom therefore considered whether the broadcast of this material was justified by context.
In coming to our decision, we took into account the fact that the sequence was broadcast well after the watershed on a service at the fringes of the mainstream, where more challenging material might be expected; and Sumo TV regularly broadcasts a warning message (every half hour according to the recordings selected for monitoring). This warning message is broadcast both before and after the watershed, and indicates that Sumo TV is clearly aware that the content may be offensive and contain strong language, at all times of day:
“…This programme may contain clips and strong language that some people might find offensive. Viewer discretion is advised.”
However, the warning was shown at regular intervals, rather than immediately preceding items that might cause particular concern, such as that showing Andy Milonakis. We note that there was further limited information offered immediately preceding the item by the presenter, who referred to: “…it’s the one you all love… it’s the fat kid who’s really thirty…”. Whilst this may have helped viewers understand that Andy Milonakis was not under-age, we believe that overall the information offered to viewers was too general.
Further, Sumo TV’s output at this time of night includes a wide range of material, little of which is offensive. However, graphic sexual references and strong language were included in this item, for example:
“…my son is ugly…I [N4BSK]ed him in the [N4BSKx2] now he’s cripple and he’s in a wheelchair…”;
“…I gave him some beeve on his sixteenth birthday yo but he’s still gay, he likes to [N4BSK] a lot, yo that’s alright I feed him mine…”; and
“…I’ll [N4BSK]ing scour your wishes…I’ll [N4BSK] you in my button…[N4BSK] you [N4BSK], [N4BSK] you… [N4BSK] it I’ll make you a [N4BSK], I’ll make you my [N4BSK] snake slither into your blither blather oh my god I’m gunna lather myself…”
Bearing in mind the service provides a string of discrete items, viewers may have come across the item unawares and so may not have been prepared for this extremely strong and sexually graphic language.
There is no absolute restriction on the use or repeated use of the strongest language and very graphic sexual references. However, it is clear that the stronger (and more frequent) the use of such material, the greater the need for clear and effective contextualisation. Sumo TV’s justification by context in broadcasting this item was neither clear nor effective.
The material was therefore in breach of Rule 2.3 of the Code.
22 July 2007 , 00:34 , Parent/Carer and Child
We do not agree that the child in this sequence was “pretending” to be frightened, or was, in some way, participating playfully and responding to “…a type of humour witnessed in households throughout the UK, day in and day out…” The child was clearly seen and heard to be crying, yelling and sobbing. In our view, the boy was very distressed by the behaviour of the person recording the clip. Ofcom is extremely concerned that Sumo TV chose to interpret these scenes in what appears to be a dismissive way; they could not, in Ofcom’s view, considered to be playful scenes. This attempt to play down what is, in Ofcom’s view, a very serious matter raises concerns about the compliance processes in place at Sumo TV. In the light of the above, we considered whether the broadcaster fulfilled its duties to the child of due care and to avoid unnecessary distress or anxiety.
The Sumo TV website’s Frequently Asked Questions (FAQs) state that items uploaded to the website which conform to its “terms of acceptability” will most likely be broadcast on the TV channel. Sumo.tv’s terms and conditions explain what these “terms of acceptability” are, stating:
“We want everyone to enjoy the SUMO.tv services and for that to happen. We need Your co-operation. We will regard as unacceptable and constituting a breach of this Agreement if You send to us video content or any communication of whatsoever description which in Our absolute opinion is unacceptable (Unacceptable Material) including by way of example (but not limitation) content which is:
- obscene (as interpreted from time to time) by the laws of England and Wales …
- excessively violent
- racist
- defamatory, libellous, threatening or abusive
- in breach of another’s rights or obligations, including any right to privacy…
- a breach of any law, rule or regulation to which SUMO.tv services may from time to time be subject including by way of example (but not limitation) the latest versions of the Ofcom Broadcasting Code (the Ofcom Code)…”
The terms and conditions on its website also state that:
“…You have sole responsibility for the Content that you submit to Us and have obtained all necessary and appropriate permissions of any person (Person) who appears in the Content You submit to Us and that accordingly We and our affiliates may use it without restriction in connection with any aspect of the SUMO.tv services...”
This approach to complying material for broadcast is wholly inadequate. We are particularly concerned that, in another response to Ofcom, Sumo TV informed the regulator that it considers that it has “…no control over the actual physical and emotional welfare and dignity of people under eighteen who may come to take part or are otherwise involved in its programmes” . The broadcaster appears to place the onus of ensuring any material broadcast is compliant with the Code on suppliers such as the general public. Sumo TV also appears to be unreasonably reliant on its terms and conditions, seemingly at the expense of appropriate compliance processes.
It is not clear what processes are in place at Sumo TV to ensure the items submitted are fully checked against the “terms of acceptability” before broadcast. It is also not clear what measures the broadcaster takes to be able to demonstrate satisfactorily to Ofcom that that any consents have in fact been obtained, and in particular if the content features someone under sixteen that informed consent has been given by the appropriate person before broadcast. Whilst we understand the nature of user-generated material and the complexities of acquiring consent when material is submitted to websites in this ad hoc way, we would expect appropriate steps to be taken as necessary before broadcast. If a broadcaster is unable to demonstrate satisfactorily to Ofcom that any necessary consents have been in fact obtained, Ofcom would expect it to take a view whether the material should be broadcast at all.
Furthermore, Sumo TV’s terms and conditions do not state that: users must be over a certain age, or if appropriate have parental consent, to upload videos; or that in recording material featuring under-eighteens due care must be taken and no unnecessary distress or anxiety is caused, and that Sumo TV will not show material which appears to breach these conditions.
In the case of the adult scaring the child, Ofcom considers the item clearly shows that the child’s involvement caused it unnecessary distress or anxiety. In light of this, by relying on the assurances of the person who submitted the clip to the Sumo.tv website that the appropriate consents had been obtained, and broadcasting the clip on this basis, Sumo TV did not take due care of the welfare of the child involved. Further, in Ofcom’s view, it was implicit that the broadcast of this material had the potential for unnecessary anxiety or distress to be caused to the child who, it is evident from the material, had already been caused unnecessary anxiety or distress in the recording. The broadcast of this material was therefore in breach of Rules 1.26 and 1.27.
Further, the broadcast of this material, showing a child being severely distressed by an adult, was offensive. We therefore also considered whether its inclusion in Sumo TV’s schedules was justified by the context. The broadcaster argued that the preceding material, involving a person being frightened awake, contextualised this clip. They also argued that the time of broadcast and the nature of the service was sufficient context and that the material did not go beyond the expectations of viewers of Sumo TV. Whilst there was a general warning some two minutes before this clip was shown (“This programme may contain items that some people might find offensive”) in our view this, together with the other factors discussed above, did not sufficiently contextualise this particular sequence in which a child was deliberately distressed by an adult. The material was therefore also in breach of Rule 2.3.
Ofcom is extremely concerned at the compliance decisions Sumo TV has made in these cases. In light of this finding, the measures taken and the reasoning it has used to interpret the Code, Sumo TV should be advised that any future breaches of this nature may result in further regulatory action being considered. Further, Sumo TV is reminded that having appropriate compliance procedures in place is a requirement of its licence conditions.
6 July – Breach of Rule 2.3
22 July – Breach of Rules 1.26, 1.27 and 2.3
Footnotes:
1.- Ofcom recently published additional guidance to broadcasters on Rules 1.26 and 1.27. This is available at: http://www.ofcom.org.uk/tv/ifi/guidance/bguidance/guidance1.pdf
2.- The presenter of the programme in fact said Andy Milonakis was aged 30 – see the Decision section below.
3.- See http://www.ofcom.org.uk/tv/ifi/codes/bcode/protectingu18/ and accompanying guidance (see footnote 1 above); and http://www.ofcom.org.uk/tv/ifi/codes/bcode/fairness/
