Two TV ads promoting alcohol brands were viewed at approximately 11.15 am during the Crystal Maze, on Challenge TV, on Saturday 4 May 2013. The ads had been cleared by Clearcast with an 18 scheduling restriction.
The complainant challenged whether the ads had been inappropriately scheduled, because they had been shown during a programme targeted at an audience below the age of 18.
British Sky Broadcasting Ltd (BSkyB) stated that Challenge TV attracted one of the oldest viewing demographics on Sky, at an average of 53 years of age. They also highlighted that the Crystal Maze comprised a series of repeats that were approximately 20 years old. They therefore believed that neither the channel nor the programme was of particular appeal to children.
BSkyB explained that they considered the Crystal Maze to be "Standard Programming", meaning that they did not believe it to be appointment-to-view programming. As a consequence, they used historic ratings for the commercial breaks in and around the programme to predict audience demographics for upcoming transmissions rather than average series data. They stated that audience demographics were predicted on the basis of the four-week rolling average for the break in question and using that data, BSkyB had predicted that the 11.15 am break on 4 May, when the Crystal Maze was shown, would index at 9.5 against children.
BSkyB explained that before 4 May 2013, the Crystal Maze had been broadcast on weekdays at 6.00 pm and weekends at 8.00 am from January to March 2013. It was then off air for four weeks before being scheduled to appear at 10.00 pm from 24 April 2013. It appeared on a Saturday morning at 11.00 am for the first and only time in 2013 on 4 May, and therefore there was no direct programme data to compare against in respect of Saturday mornings at 11.00 am. However, as "Standard Programming" the decision to apply restrictions or not was based on the previous four weeks' viewing at the same time on each Saturday. They explained that previously the programme "Golden Balls" had been broadcast in the 11.00 to 12.00 am slot. They also stated that from their research, the four-week rolling children index for the Crystal Maze before 4 May, in its 10.00 pm slot, was 13, and that the series average children index for 2013 before the 4 May, when the programme was broadcast mostly at 8.00 am at weekends and 6.00 pm on weekdays, was 136.
They also stated that before 4 May, the four-week rolling average children index for the break in question was 9.5, the overall 2013 children index for the break in question was 16, and the highest index for the break was 86. They noted that the index for the break in question on 4 May was 283. However, they asserted that their historical viewing data consistently showed that the break in question was indexing well below 120, and it was reasonable to assume that the break on 4 May would continue to index at a low level.
BSkyB also asserted that the Crystal Maze was a programme with low Television Viewer Ratings (TVRs) and therefore, based on the small Broadcasters' Audience Research Board sample size, the audience figures for individual breaks were too low to provide reliable conclusions as to the exact composition of the audience viewing a particular episode. They therefore considered that sampling errors were likely to be very large and that the data was not robust and that they had more confidence in the pattern established (a low four-week rolling average index for the break in question), than for the individual result (a high index on the complained of date). Regardless of that, they said they would apply an alcohol restriction for the whole programme for the next three months so that they could investigate further and determine whether they needed to apply differential scheduling rules to ensure alcohol ads were not broadcast at times when a higher proportion of children might be watching.
The ASA noted that the ads were for alcoholic drinks that contained more than 1.2% alcohol by volume and therefore should not have been broadcast in, or adjacent to, programmes commissioned for, principally directed at or likely to appeal particularly to audiences below the age of 18. We understood that the BCAP guidance stated that an alcohol restriction should be applied in programmes where the 10- to 15-year-old audience, indexed against the total audience of all individuals over four years old, produced an index of 120 or more. We acknowledged that BSkyB considered the Crystal Maze did not have particular appeal to children, but noted from audience indexing data supplied by Ofcom that the 10 to 15 index for the programme on 4 May was 434. We understood, however, that an index over 120, when looked at retrospectively, was not necessarily indicative of a breach of the Code, and we therefore considered whether BSkyB had used the predictive tools available to them to schedule advertising with reasonable thoroughness and care.
We noted that BSkyB used a 4 to 15 index when assessing whether a particular programme or break had a high children audience, and were concerned that the BCAP guidance had not been followed. We considered that using a 4 to 15 index did not adequately protect 10- to 15-year-olds to the same extent that a 10 to 15 index would. We noted from the indices for the 4 May, that the index registered for 4- to 15-year-olds was significantly less than that for 10- to 15-year-olds, and therefore considered that by regularly using a 4 to 15 index, BSkyB may have deflated the index and under-represented a programme's appeal to 10- to 15-year-olds.
We understood that the Crystal Maze was categorised as "Standard Programming" which meant BSkyB did not use average series data to predict the audience demographics for a particular programme, but instead used a four-week rolling average for the break in question. We noted, however, that the 2013 series average for the Crystal Maze before 4 May was 136. We also considered that because that figure related to a 4 to 15 index and included occasions when the programme had been broadcast post 10.00 pm, when the number of children viewers would be significantly lower, it was likely that the rating of 136 under-represented the programme's appeal to 10- to 15-year-olds. Further, we considered it was conceivable that the Crystal Maze appealed more strongly to children than Golden Balls, and could have resulted in children who did not normally choose to watch Challenge TV on a Saturday morning to do so. As the programme had not been aired at 11.00 am on a Saturday in 2013 before 4 May, we considered that the historic average series data was another resource that BSkyB could have used to decide whether to broadcast the alcohol ads at 11.15 am on 4 May. Although we acknowledged that rolling average break data was a useful tool that advertisers could use effectively to help decide when to schedule alcohol ads, we considered it was most helpful when it related to the same programme, and might be more indicative of a programme's popularity with children than series data which averaged a variety of different timeslots and days of the week. We considered that in this case, as the rolling break data did not relate to the programme in question, but simply the timeslot when a different programme had previously appeared, the series average index of 136, should have been an additional consideration and informed BSkyB's decision to show the alcohol ads within the Crystal Maze on 4 May.
We noted BSkyB's concern that the Crystal Maze was a programme with the low TVRs (low audience figures compared to the TV population as a whole) and therefore they believed the likelihood of sampling errors to be very high. We noted, however, that the BCAP Guidance did not include any such exceptions and we considered that broadcasters should err on the side of caution if programmes on channels with low overall audience figures were predicted to achieve a high children index.
We welcomed the fact that BSkyB intended to apply an alcohol restriction to the programme for three months and to further investigate the audience demographics achieved. However, as BCAP guidance had not been followed and the wrong index applied, and BSkyB had not considered the series average index when deciding whether to show the ads during the Crystal Maze on the morning of 4 May, we concluded that the scheduling of the ads was in breach of the BCAP Code.
The ads breached BCAP Code rule 32.2.1 32.2.1 alcoholic drinks containing 1.2% alcohol or more by volume (see rule 32.4.7) (Scheduling of television and radio ads).
We told BSkyB to follow the BCAP Guidance Note 4 and use the 10 to 15 audience for forecasting the likely appeal of a programme to audiences below the age of 18 years. We also told them not to broadcast alcohol ads in programmes likely to appeal particularly to audiences below the age of 18.