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Ofcom hands Channel 5 biggest-ever fine

Two Five shows discontinued

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Five has been hit with a £300,000 fine by regulator Ofcom in what is the biggest payout by a public service broadcaster to the regulator. It was found to have faked winners in live call-in competitions.

In shows produced by Cheetah, a subsidiary of Big Brother producer Endemol, production staff posed as winners on numerous occasions, a move that the regulator said "substantially misled" viewers and competition entrants.

"What started as a single attempt – unacceptable in itself – to resolve production difficulties in finding a winner had become an established procedure," said Ofcom's ruling. "The formalised procedure that had been adopted by the programme was totally unacceptable and showed a blatant disregard for not only the audience of the show, but also those participating and spending money by entering some competitions that were not being run fairly.

"The editorial needs of the programme overrode the consideration of fairness to those participating in the competitions and to the audience overall," it said.

Daytime shows Brainteaser and its spin-off Memory Bank had faked winners on a number of occasions, Ofcom's investigation found. When viewers with the correct answers could not be found to go live on air, production crew members pretended to win, it found.

This happened five times in 2007 alone, Ofcom found, and had been going on since 2003. The activity was carried out by Cheetah production staff despite Five's guidelines on fairness.

"The committee was in no doubt that Five had acted in good faith at all times and had not intended its service to deceive the audience. It clearly had extensive compliance procedures in place through which it sought to ensure compliance and had regularly monitored and reviewed the procedures for conducting the competitions," said the ruling.

"The committee noted that Endemol was a large and experienced production company and understood Five's reasons for believing it was well equipped to produce such a programme. However, on the evidence available to it, the Committee considered that this confidence had been misplaced and that Endemol appeared to have failed to take the necessary steps to deliver a compliant programme," said Ofcom.

The ruling said that the procedures of both Endemol and Five seemed to be geared more towards the smooth running of the programme than towards treating its audience and competition entrants fairly.

Endemol's Cheetah acknowledged in a statement that it had made errors. "While fundamental errors of judgment were made on these few occasions, Ofcom's report clearly demonstrates that these came down to an honest but misguided attempt to keep a live show running," it said.

Five said that it would not appeal the fine and would pay it itself. "Five has always accepted that breaches occurred with regard to Brainteaser," said chief executive Jane Lighting. "However, we are disappointed with the very high level of the financial penalty imposed, especially as we believe Five took all reasonable and appropriate steps to ensure the programme complied with the Ofcom Code."

Five must pay the £300,000 fine and must broadcast a statement of Ofcom's findings twice - once at the time of day when Brainteaser was shown and once at prime time. Both the affected programmes have been discontinued.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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