Channel 5 has been found by Ofcom to have breached rule 1.28 of the Ofcom Broadcasting Code in relation to “Blinging Up Baby”, a television documentary. The documentary showed mothers and daughters having beauty treatments, wearing glamorous clothing and attending children’s beauty pageants. In Ofcom’s view, Channel 5 did not take due care of a four-year-old girl’s welfare and dignity, even though her mother had given consent for her to be filmed and to appear in the programme. The child was shown taking part in a pageant, wearing a “Hooters”- themed costume and, in her “freestyle” routine, leaning backwards on all fours and thrusting her hips backwards and forwards. Ofcom considered that the combination of the child’s costume and her routine had the potential to compromise her dignity and welfare.
The mother of a four-year-old girl was shown in the programme making a “Hooters”-themed outfit for her daughter in preparation for a beauty pageant. In response to a question about whether it might be a controversial choice for her young daughter, the mother replied:
“Some people may say it’s controversial – the theme that I’ve chosen – but at the end of the day little girls wear swimming costumes to the beach every day – all summer – and that’s not a controlled environment. The environment my kids go in is a controlled environment and it is ticket entry and if anyone thinks it’s controversial then please explain.”
The girl was shown before the first “beauty” round of the pageant refusing to go on stage. Two scenes showed the child appearing distressed about going on stage and refusing to go on. She was shown crying and saying to her mother: “I’m scared, mummy. I’m scared.” and “I feel scared on the stage.”
The girl was then shown during the “freestyle” round of the pageant wearing the Hooters-themed outfit, which consisted of a white leotard with one sleeve and the word “Hooters” sewn in sequins across her chest, and orange shorts. The girl was shown in long and medium shots only on an unlit stage. The routine included the girl wiggling her hips from side to side with her hands on her head, doing the “splits”, leaning backwards on all fours and thrusting her hips backwards and forwards four times towards the audience, and standing up with her hands on her hips and moving her hips from side to side, first facing away from and then facing the audience.
Ofcom received 11 complaints about the four-year-old girl’s participation in the programme. Particular concerns were raised about her being shown taking part in a beauty pageant wearing a Hooters-themed outfit and performing a dance routine that some complainants considered was too sexualised.
In response to the complaints, Channel 5 said that “a great deal of thought and care was given … as to how the children … would be treated”.
Before production began, the programme-makers had prepared a code of conduct for the programme, based on the Code, Ofcom’s published Guidance on the Code, the BBC’s Child Care Policy and other available guidelines. Each production team member had been required to read and sign the production company’s child protection policy and to read all the relevant guidance. Disclosure and Barring Service checks were also undertaken for the production team.
Detailed information had also been provided to all of the families who were considered for participation in the programme. This included a description of the programme, details of the likely time commitment and details of any likely negative consequences of appearing in the programme. The programme-makers also obtained information about the families to assess whether they were “sufficiently strong and supported” to take part. Each family was given the producer as a single point of contact, but at no point had any of the contributors expressed any concern about the production process.
Careful consideration had also been given to whether the child contributors should undergo psychological assessment before they were accepted as contributors. Channel 5 sought advice from an experienced psychologist, and ultimately decided that psychological assessments were unnecessary, on the basis that the children were to be filmed in environments in which they were comfortable and were not required to be placed in situations in which conflict or stress was likely.
During production, the production team were under instructions to report any concerns regarding the physical or emotional welfare of the child contributors to the producer, who would, if necessary, escalate any issues to Channel 5 or to the psychologist. The four-year-old girl’s apparent distress at the pageant was, however, not something that had been escalated. The producer had been present throughout and, bearing in mind the child’s character and familiarity with pageants, her mother’s assurances and the girl’s enthusiasm to take part, the producer had considered that the child’s participation in the programme had not been the cause of her distress. The producer had, however, stopped filming temporarily, and had discussed the matter with the executive producer, but it was not felt necessary to escalate the issue further.
Contributors were also advised during production that they did not have to be filmed and could ask for filming to cease at any point. In addition, at various points during production, the producer had spoken with parents about the possibility that the programme might attract press interest and social media activity, and the steps that could be taken to ensure care of the featured children.
After production, specific advice was given to the featured contributors that teasing and bullying were possible outcomes of the broadcast, as well as advice on changing social media settings to private and on how to block or complain about abuse on social media sites. Press interest in the programme was handled by a PR company, which fielded requests for interviews and assisted the contributors with media enquiries. The production team contacted the contributors after broadcast to gauge their reaction, and no issues were raised.
In relation to its decision to broadcast the four-year-old’s Hooters-themed dance routine, Channel 5 explained that, as an observational documentary, the programme was intended to be a record of what had happened. Channel 5 recognised that the Hooters-themed outfit might attract criticism, and said that this had been discussed with the child’s mother. But Channel 5 considered that the outfit was “not immodest at all”, and that the girl was “simply performing a series of ‘freestyle’ semi-acrobatic moves” and “not in any way simulating a provocative act”. It took the view that “if the programme did give rise to criticism or comment this was unlikely to impinge on [the child] in any way as she was too young to comprehend any criticisms of her outfit and routine and in any event, any such criticism was likely to be directed at her mother”. Although a formal risk assessment had not been undertaken for the footage in question, Channel 5 said that both it and the production company had considered carefully whether any of the footage should be included, and if so, what footage to include.
Ofcom noted that the shots of the girl performing her freestyle routine were brief and intercut with shots of her mother watching her and of other parents commenting (both positively and negatively) on the girl’s costume and performance. These factors helped, in Ofcom’s view, to reduce the potential adverse impact of the clips on the child’s dignity and welfare. Ofcom also acknowledged that the programme was a documentary which showed the girl performing at the pageant, which she would have done irrespective of whether she was featured in the programme.
The mother’s response to the producer’s question as to whether the appearance of her daughter in the Hooters-themed outfit might be controversial suggested, in Ofcom’s view, that the closed nature of the pageant itself initially contributed to her decision that it was acceptable for her daughter to be filmed performing wearing the outfit. The production team later highlighted to the mother that there might be “an adverse reaction” to the child appearing in the Hooters-themed outfit, but nonetheless interpreted her view that she “remained happy” for the filming to continue as sufficient consent for her child to appear. Bearing in mind, however, that the mother might have a strong interest in her daughter’s participation in the programme, it appeared to Ofcom that Channel 5 had unduly relied on the mother’s consent rather than making its own considered, independent assessment of any adverse consequences arising from the broadcast of the footage in question.
Ofcom noted that, although a number of measures had been taken both before and during production to ensure that due care was taken of all of the children taking part in the programme, there was no evidence that any initial or ongoing risk assessment had been carried out. This was despite the fact that the potential for there to be an adverse reaction to the girl’s performance on television in a Hooters-themed outfit had been recognised and discussed with the child’s mother. Ofcom considered that, had a risk assessment been carried out and/or expert advice been taken on the potential for there to be negative effects on the child’s welfare and dignity, this would have enabled Channel 5 to undertake a more robust and considered assessment of whether it was appropriate to include the material in the programme as broadcast.
Ofcom said that, although the outfit worn by the girl was not, of itself, revealing, it was linked with a restaurant chain that incorporated sex appeal in its corporate branding. While the girl’s routine might, to her, simply have been a series of semi-acrobatic dance moves, some adult viewers could have interpreted it as being of a sexualised nature. The fact that the girl was too young to understand any criticisms of her outfit and routine increased the need for Channel 5 to consider very carefully the possible impact on her welfare and dignity of the broadcast of this material. It was precisely because some viewers could have interpreted the routine as sexualised that Ofcom considered Channel 5 had not taken due care of the child by broadcasting the material.
It appeared to Ofcom that Channel 5 had decided to include the footage on the basis that: (a) the child was participating in the pageant as part of her normal activities; (b) she did not understand how the performance could be interpreted by adult viewers; (c) any criticism of it was unlikely to be directed at her; and (d) her mother (who clearly had an interest in her daughter participating in the programme) had provided consent and was happy for her child to be featured in this way. In these circumstances, Ofcom considered that Channel 5 had made an error of judgement and had not taken care of the child’s welfare and dignity, irrespective of the consent given by her mother, so breaching rule 1.28 of the Code.
As for rule 1.29 of the Code (causing unnecessary distress or anxiety to a person under 18), Ofcom noted that the production team had been satisfied that the distressed behaviour of the child during the “beauty” round had not resulted from her involvement in the programme, but rather her character and desire to appear on stage first. On the basis of the evidence available, therefore, Ofcom considered that there was no breach of rule 1.29.
The concept of “due care” is central to rule 1.28. Ofcom’s Code Guidance makes it clear that the level of care must be “appropriate to the particular circumstances”. It is a matter of judgment for broadcasters to decide what measures are appropriate in the context of individual programmes, genres and formats and the level of child participation involved. Broadcasters also have to decide whether, having filmed a child participant, it is appropriate to transmit that material. Such judgements need to be made independently, without undue reliance on measures that the broadcaster may have already taken to ensure due care of the child. The broadcaster must determine whether the broadcast of material could potentially have a negative impact on the child’s welfare or dignity and make an appropriate decision about whether it is right to broadcast the material in the circumstances.
Ofcom clarified in its finding that no particular genre is less or more likely to require a broadcaster to conduct a thorough risk assessment and, indeed, that a formal risk assessment may be unnecessary. The issue of whether a risk assessment is desirable depends on the particular programme, the nature and degree of the child’s involvement, and the child’s age and capacity to make judgments about participation and its likely consequences.
Ofcom acknowledges that there will be many circumstances in which it might be appropriate for a parent to have a substantial role in determining a child’s contribution to a programme. In the Code Guidance, however, Ofcom makes it clear that while it does not seek “to lessen the importance of the views of parents or guardians on children’s participation … many parents and guardians will not be familiar with the production process or have a full understanding of the implications of their child’s participation”. In this case, it appears that Ofcom inferred from the mother’s reply to the producer’s question about the appearance of her daughter in the Hooters-themed outfit that she might not have fully understood the implications of her daughter’s participation in the programme.
Ofcom also inferred from Channel 5’s response that undue reliance was placed on the mother’s consent for her daughter to appear in the programme. The Code Guidance clarifies that in cases where a parent or guardian may have an especially strong interest in a child’s participation in a programme (for example, where a parent is keen to promote the child’s talents or abilities), programme-makers must assess for themselves whether it is in the child’s best interests to take part, and what impact the participation may have on him or her. Rule 1.28 makes it clear that due care requires the broadcaster to make an independent judgement on this, irrespective of the consent of the child, parent or guardian.
Eleanor Steyn, Associate, Michael Simkins LLP
Article written for Entertainment Law Review