Well, not quite…but any explicit sex must be limited and shown late in the schedule. That is the message from three breach findings Ofcom published this week (Bulletin 381) against Channel 5.

The broadcaster transmitted three observational documentaries about the UK sex business in December 2018 with titillating titles: Pain for Pleasure, Trans On Demand, and Orgasms for Sale. There was a flurry of complaints to Ofcom that the sexual activity shown in these episodes was unsuitable for broadcast on Channel 5 at 10pm.

Included in the programmes were interviews with sex workers and images of real sexual activity between them and their clients. Some of the content was a tough watch, encompassing (trigger warning to sensitive readers!) eg a dominatrix stapling a client’s genitals; three dominatrixes with a sadomasochistic client, who was tied and masked and had his testicles restrained in a device which was pulled upwards by a lever; a female sex worker urinating onto a client and asking the client if he wants to take “the piss in his mouth” or on his body; a sex worker inserting his fingers into a woman’s vagina repeatedly as she lay on her back with her legs apart.

Ofcom investigated under two Code rules: 2.3 (offensive material must be justified by the context); and 1.19 (material broadcast after the watershed which contains images and/or language of a strong or explicit sexual nature but is not ‘adult sex material’ [must be] justified by the context).

Having previously broadcast a series of The Sex Business without Ofcom getting involved, Channel 5 clearly thought they knew how to comply it. A strong warning was broadcast (narrated and shown in text) before each episode: “Not for the faint hearted. Be prepared throughout for full frontal nudity, extremely graphic scenes of actual kinky sexual activity, including dangerous consensual sexual violence, ball nailing, fisting and practices that only senior Dominatrixes with years of training and experience can undertake safely; all of which may disturb some viewers”. After advertising breaks, a very similar warning was broadcast each time. Shots and sequences were masked or edited with some care.

Channel 5 clearly considered they had done enough and put up a doughty defence. But Ofcom disagreed. This is after all a genuine area of regulatory discretion, which Ofcom exercised here in my view with a well reasoned decision. The decisive issue was time of broadcast. In effect Ofcom concluded that the programmes would have complied with the Code if they had been shown an hour later, at 11pm and not 10pm, when fewer children were likely to be watching. Significantly (and rightly in my view) the programmes are still available on Channel 5’s catch up service

So the compliance take-away is clear: if you wish to broadcast programmes with strong sexual or violent content, limit that content appropriately, give robust warnings to viewers and air it after 11pm.