Action on the games
Now you might have thought that I'd lost interest in the business of Participation TV but that's not the case an OFCOM ruling is on the way and here's some background on the business from Bob Winsor...
A few points that I think are relevant
1* The expected fine by OFCOM has dropped from £50m + to about £4m
2* ITV's share price is already in the 'doldrums'
3* Is the game ITV were running that much different from the National Lottery (where punters are kept in the dark about the odds of winning)?
"Below just one example of how BGTV and ITV took money from their viewers. The incident described happened on a daily basis and involved ITV staff actually having meeting and thinking up ways to take money from their viewers. Despite the proof copied below, Ofcom refuse to act to safeguard the consumer/victim of ITV.
VICTIMS OF SUCH PRACTICES SHOULD CONTACT itvbiggametvvictims@hotmail.co.uk WITH A DESCRIPTION OF WHAT THEY SAW HAPPENING ON ANY LATE NIGHT QUIZ ALONG WITH ANY LETTERS OF COMPLAINT TO REGULATORS
Date of game: 22/10/05 (ofcom decision regarding this specific game 19/11/07
Producers of such 'questionable' games:
Keith Price
Sarah Mc Nally (now ‘producing Channel 5’s Quizcall – do not play this game until ofcom/police have sorted thus wide-scale fraud out.)
Matt Cuttle
Paul Judd
Directors responsible for overseeing this questionable programming:
William Van rest (director of ITV play)
Sir Michael Grade (for investigations of other incidences of the type described below)
David Elstein (ex CEO Sparrowhawk- Halmark quiz) for allowing viewers to be given the impression that the programmes gave a fair and equal free entry route existed at BGTV –who produced his daily quiz show.
David Sanderson and Fergus Lawson (ex Carlton TV directors who came up with the methods described below.)
Tony Prior and Barry watts (of Music and Brands, 140 Wardour St) who, with Sanderson and Lawson set the operation up from within the ITN Building)
Kate Mayne and James scorer of ITN Legal and compliance who allowed the programming to continue from within the ITN Building ,
Ed Richards of Ofcom and George Kidd of PhonePayPlus (formerly Icstis) who turned a blind eye to consumers’ safety despite calls from inside the ITN Building from more than one source that ITV/BGTV/Hallmark viewers were being given a false impression.
Technical director on the night described below Andy Pope
Presenters: Vicky Letch and Dave (forgot his surname)
Call Operator: Myself (Bob Winsor).
Description of the fraudulent incident
On the 22/10/05 whilst working at BGTV the producer put a very simple puzzle on air. It was a picture of a fish with the word ‘fingers’ written next to it. Viewers were urged to call in and Say what You See in order to win the £100 prize. I was told to ignore all incoming calls whilst the presenter, on the orders of the producer, urged viewers to hit the redial button. She was also told to ask Why nobody was calling in on such a simple game. The reason why the producer ordered me to ignore al calls was that the call volumes (revenue) was so high that he did not want to take a call and give the money away. It is vital to remember that a cross-party select committee remarked with this particular game in mind that ‘We signal our strong view that any practice of misleading viewers about call volumes or of blocking calls would be more than unfair: It would be fraudulent and should be punished under criminal law (P21/22. Third report of session, 2006-7. Call YV Quiz Shows. (http://www.parliament.the-stationery-office.co.uk/pa/cm200607/cmselect/cmcumeds/72/7208.htm#a10).
The evidence submitted and considered by Ofcom prior to their decision of 19th Nov 07
My police statement (sent to Ofcom by DS Bussey)
The original producers running order showing the date of the game and a photocopy of the on-screen graphic
Two email complaints - look at ‘Easy puzzles - long time on air blog by Darren Lethem and ‘Big Game Girlie’ at: http://www.quiztelly.co.uk/forum/forumdisplay.php?f=3&order=desc&page=1717
An email by Andy Pope that was sent by me as fresh evidence to Ofcom. This email came to light after the police investigation had been concluded. The serious fraud office re SFO powers under Criminal Justice Act s2 (8) – contradictory statements? By not passing this on to the SFO I question the legality of Ofcom’s decision making.
From: Andrew Pope
Sent: 18 May 2006 18:55
To: Fergus Lawson
Subject: Bob Winsor
Fergus, following our conversation I am writing to detail the conversation with Bob Winsor on Friday 12th May.
At 09:30am I received a phone call from Bob Windsor, who had informed me that he had been in contact with OFCOM and the Serious Fraud Squad. He informed me that he first had talks with both organisations whilst at work on a night back in October/November when we played a ‘Say what you see’ style of game for 3 hours. He said that it was ridiculous that Big Game TV did that and I agreed that I wasn’t a fan of how that game was played on that occasion as we were both working on the night that the event took place. Bob then went on to say that since that night he had made a list of all the things that he thinks that Big Game do wrong. He explained that he didn’t like it when we blatantly clued up an answer by almost typing the answer on screen and asking our viewers to call in when he knew we would not take a call for 15 to 20 minutes…
_________________
At the top of this post is a graphic from a police report showing how Mr Pope of the BBC then obstructed the fraud squad and the CPS when questioned a week after this email:
Viewer complaint dated 22.10.05 at 1.02 relating to the above email and the evidence I gave to the fraud squad. Did Ofcom check the call volumes for this three hour fraudulent call block?
Did my eyes deceive me tonight or did Big Game have a ridiculously easy puzzle dragging on for well over an hour?
I am sure that when I was flicking through a puzzle was on with Dave and then with Vicky and then back with Dave again. Surely that means that either they never had a caller on air within that time or they must be incredibly thick to give the wrong answer.
The puzzle was a picture of a fish next to the word fingers - name the food.
When I first saw it the cash was at £150 then when I saw it the second time around it was £250. Are they really taking the **** ?
AT 1.17am it was still on air on ITV whilst the presenters made out nobody was calling:
was a big game tv fan until tonight, that game has been on for almost three hours, and it's still on now!!!! why haven't they taken one caller yet???
The Criminal Law Act 1967, s 4, makes it an offence to do anything intended to impede a prosecution of someone believed to have committed an arrestable offence. The twenty or so witnesses who decided to lie to the fraud squad about such methods are responsible for the CPS making a decision partly based on these false statements.
VICTIMS OF SUCH PRACTICES SHOULD CONTACT itvbiggametvvictims@hotmail.co.uk WITH A DESCRIPTION OF WHAT THEY SAW HAPPENING ON ANY LATE NIGHT QUIZ ALONG WITH ANY LETTERS OF COMPLAINT TO REGULATORS
For the first 2 hours of the game was broadcast on satellite. Calls were at approx 300 calls per minute = 300 x 75p for 120 minutes. This equals 36,000 x 75p. In turn this equals a fraud on the public of £27,000. The 300 calls per minute is very conservative estimate
When the game went into an ITV broadcast the calls were much higher because ITV reached a wider audience. In evidence to Parliament ITV admitted to 6,000 calls per minute but on Panorama a producer said it was more like 11,000 calls per minute. To be generous to ITV/BGTV lets just say that the calls on a busy Saturday night were at a mere 6,000 per minute for the hour the game was left on ITV (00.30am until 01.30am). This works out at 6,000 calls x 60 minutes x 75p. 360,000 calls at 75p = a fraud of £240,000.
Add these two sums together and the e total amount the public were defrauded out of for this three hour period alone equals £267,000. If you imagine this type of thing happening every day then you can get an idea of the scale of the problem
Ofcom’s letter of response specifically dealing with this game and the evidence submitted
Internet blogs – point (4) in your email of 23 November 2007
It is not within Ofcom’s statutory remit to consider the content of internet blog sites. These websites were unconnected to BGTV’s licensed service and carry the unmoderated opinions of individuals who choose to remain anonymous. Had any of these individuals made properly formed complaints to Ofcom it would have considered them in accordance with its normal procedures.
Turning now to the evidential points you raised in relation to the A Pope email and producer running order, you will note that Ofcom’s published decision relating to BGTV makes it clear that there was “a clear and irreconcilable conflict of evidence between the central allegations of unfair conduct outlined by [you] and the position of the broadcaster”. Ofcom is satisfied that in reaching its decision it properly considered and gave appropriate weight to both of these matters.
A Pope email - point (3) in your email of 23 November 2007
Ofcom considered the email from A Pope which was written in May 2006 and describes a telephone conversation he had with you in October 2005.[INCORRECT. THE CONVERSATION MR POPE HAD WITH ME WAS ON 12TH MAY 06. TWO WEEKS LATER HE OBSTRUCTED THE POLICE BY DENYING THE PRACTICES HE DESCRIBES IN THIS EMAIL –IT WAS OFCOM WHO I HAD CONVERSATIONS WITH IN OCT 05 ABOUT THE FRAUD]. However in itself the email was not conclusive evidence of malpractice within BGTV. Moreover, any suggestion of malpractice was contradicted by Mr Pope’s statement to the police.
Relevant Points of Law regarding judicial review of Ofcom on the grounds of
ILLEGALITY and also IRRATIONALITY of decision making on this specific case
The following words are taken from ‘The English Legal Process 9thed. Terence Ingman. OUP 2002.
Re Irrationality
P 523 ‘Lord Diplock said that the grounds on which administrative action is subject to control by judicial review can be classified under three heads
….
b) Irrationality. (in the Wednesbury sense of ‘perversity’) where the authority has acted so unreasonably that no reasonable authority would have made the decision (a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person…could have arrived at it’
Re Illegality
P. 525. Lord Diplock’s illegality ground covers a number of different issues…failing to perform a statutory duty, fettering a discretion, taking into account irrelevant considerations and leaving out of account relevant considerations.
Mandamus
P.562 Mandamus is used primarily to enforce the performance of a public duty…But may also be used to ensure that a discretion conferred by statute is exercised according to law.
P.564. The justification for the courts power to interfere n these circumstances is that a complete failure to exercise a discretion which is required by law to be exercised is unlawful and that an improper or capricious exercise of a discretion is tantamount to a failure to exercise it.
For example:
1) Regulators to collect the taped evidence from viewers, the select committee, Panorama and Ben R Good (see his evidence in the report).
2) Collect all the taped evidence from the monitoring unit at Icstis (set up in July 05) and ask whether the ‘calls to action’ are misleading when matched to the call volumes.
3) Match call volume records with ITN records of phone breakdowns at BGTV. This will show viewers still calling in their thousands, as encouraged by producers and presenters, whilst there was no way of getting through because the engineers were fixing the phone system
4) Either tell me, or an independent body, SFO?, the nature of the 49 complaints about BGTV made by victims/viewers. I could then tell the SFO or Ofcom what was going on behind the scenes.
5) Get the call volumes for the timed and dated 3 hour call block (fish fingers) on BGTV and later that same evening on ITV.
6) BGTV have, on 11/12/07 filed for a dissolution or striking-off of BGTV as a company. On the 14/12/07 BGTV filed the application (652a) for striking off. On the 18/12/07 BGTV filed a credit range limit and a risk score change. In light of a possible multi-party action against BGTV/ITV may I suggest that Ofcom seek to prevent the dissolution of BGTV whilst there are still victims who both ITV and BGTV have refused to recognise.
7) Pass evidence of fraud to the authorities, as I had to do due to regulatory failures.
8) Ensure victims are compensated/refunded. Failure to do this will leave no option but for a multi-party action against BGTV/ITV.
9) Use regulatory powers granted by Parliament to ensure the public are never put at risk again by ensuring that the company directors of BGTV, Tony Prior, Barry Watts, Fergus Lawson and David Sanderson are barred from working in the interactive tv and internet related industries.
10) Request that Deloitte and Evershed’s show the relevant authorities their full, unedited findings in order that a public wrong may be righted.
P.565. Mandamus is a discretionary remedy and will not normally be granted where there is some adequate alternative remedy or procedure available for enforcing a particular public legal duty.
Bearing the above words in mind along with the final words from Ofcom on this particular game I see no other alternative remedy.
Final words from Ofcom
The final sentence of the report of the 19th Nov reads:
The allegations made against BGTV Ltd were extremely serious. However, there was no adequate evidence for Ofcom to determine whether the Code had been breached.
The final words of Ofcom’s letter of response reads:
We feel we have addressed all the matters you have raised, many of which appear to be spurious and/or have been explained to you on a number of previous occasions. We strongly recommend that you take appropriate legal advice before proceeding further or sending any additional points for Ofcom to address as part of the pre-action protocol process. We make this suggestion in order to avoid any further unnecessary effort on both your part and that of Ofcom as a public body. If you decide to proceed with an application for judicial review Ofcom reserves its right to draw to the court’s attention your extensive contact with various Ofcom colleagues which includes numerous telephone conversations, messages and written correspondence, frequently of an unspecific nature.
Documents may be served on Ofcom at Riverside House, 2a Southwark Bridge Road, London SE1 9HA for the attention of Harriet Fear Davies or Caroline Smith. We will also accept service of documents by fax to 020 7981 3159 marked for the attention of Harriet Fear Davies or Caroline Smith.
Yours sincerely,
Caroline Smith
This concludes my reasons for requesting Judicial review of the decision made by Ofcom about a particular game dealt with in Ofcom’s report of 19th Nov 07.
OFCOM JR Preliminary Thoughts
(1) Standing: concerned member of the public with a particular interest in this decision because the applicant provided evidence to OFCOM which was either ignored or not given fair consideration. Protect applicant so far as possible from allegations of being a nuisance – see “threats” in OFCOM correspondence.
(2) Challenge: OFCOM decision not to make a decision notwithstanding its investigatory role. Further work required on OFCOM statutes, discretions and powers, in particular re ducking its responsibilities.
(3) Remedy: Quash not decision and seek an order requiring a further inquiry.
(4) Themes: (a) Counter the position that as the police found insufficient evidence to prosecute so OFCOM found insufficient evidence to reach a decision on the basis that OFCOM’s supervisory and regulatory role obliges them to be proactive and determinative; (b) counter Big Game no longer operating by pointing to systematic practices / phoenix on different channel, i.e. problem still extant.
(5) Evidence: must be that which was before or reasonably available to OFCOM (cf (2) above).
(6) Timing: keep an eye on requirement to be prompt and in any event within 3 months from 17/11/07. Approaches already made to OFCOM are helpful in this respect.
(7) Way forward: collect together such material as is available / investigate and research OFCOM / draft permission application including written witness statement with accompanying documents.
Yours sincerely
Bob Winsor
Jenny Sanders (FOI)
Information Commissioners Office Reference Number FS50187452
The purpose of this short letter is to offer evidence and reasons as to why an independent authority needs to investigate ALL viewer complaints to ofcom. My reasoning can be best summed up by using the words of Rodney Austin – ‘freedom of Information’ in The Changing Constitution’. Ed Jeffrey Jowell and dawn Oliver. 4th ed, 2000. OUP
P330 ‘ The most dangerous consequence which may flow from the withholding of information by regulatory agencies is that the agency may become the captive or even the protector of the regulated industry…Sometimes the regulatory agency may be sympathetic to the regulated industry because it is government funded…the regulatory agency may simply accord greater credence and priority to the claimed commercial needs [itv’s financial crisis has been well documented] and the interests of the industry than the safety, health and welfare of those whose protection the agency is charged’
P 41 of Richard Ayers ofcom investigation into quiz TV says:
Quiz TV
8.15 The consumer protection issues that arise from dedicated quiz TV formats differ
from those that generally apply to viewer competitions used in mainstream genre
programming. Allegations have been made about the way in which phone entries are
handled, but neither ICSTIS nor Ofcom has had reason to uphold a complaint in this respect,
and the City of London Police’s Economic Crime Unit dropped a fraud case against a former
licensee (Big Game TV!) in October 2006.
8.16 Certain techniques used by quiz TV channels and programmes have also been
questioned, including presenters suggesting that call levels are low when they aren’t,
and the use of countdown clocks and the like. Again, though, no Ofcom or ICSTIS
cases have been upheld. [emphasis added re why have no complaints been upheld? What was in the deleted last sentence re BGTV?]
How did Ofcom respond to this complaint below? –taped evidence was submitted in a public spirited action by a concerned viewer
Ofcom Contact Centre
Riverside House
2a Southwark Bridge Road
London
SE1 9HA
14.08.05
Dear Sir or Madam
I wish to register a complaint against “Big Game TV”. I have enclosed a DVD for your perusal. I believe their “games” to be misleading, and unfair.
The bulk of the enclosed disk is taken up with a 2 hour long “game”, where the host refers to a simple paragraph about a baker making buns. The question is “how many buns?”
After 2 hours of accepting premium rate phone calls and taking answers from zero to thousands, the host, realising they have almost reached the end of the broadcast, offers four multiple choice answers. The next three calls all, conveniently, guess incorrectly, and eventually, the last caller of the evening wins.
The second clip I have enclosed has been chopped short to fit on the disk, but this went on in much the same way. The show went on for at least an hour. After many many incorrect guesses (and how many callers failed to even get though?), the host revealed the answer was between 870 and 875. Every possible answer from then was guessed incorrectly, leaving only one possible answer, which the last caller of the evening guessed correctly.
My complaint is that each time I see these shows, the “game” follows the same pattern. The host ends up giving clues, eventually telling the answer outright. Each time, after taking potentially thousands of phone calls at 60p each, they tell someone the answer they have given was correct, but never explain why.
Communication with Big Game, and other channels, gives the response is that they will not reveal the method, as they may wish to use the game in future – however, they have checked with their games designers and can confirm the answer given was correct. This reason is given in “Big Game TV’s” terms and conditions, available on their website, but not on screen. Surely, after playing the “game” for so long, they have a duty to reveal why their answer was right – otherwise, they can say anything they like!
I believe this channel, and many others across the Sky network, are running a ridiculous “Guess the Number I’m Thinking Of” game, where there is no definite way of working out the correct answer, and anyone phoning in has no chance whatsoever of winning, unless the host has revealed the answer himself. Take a look at the DVD enclosed. If you can come up with a way to get 871 for “Mrs Glove”, or 831 for “Mr Chips”, I’ll be surprised. If you can’t work it out with the answers supplied, then how is a caller meant to guess? I am sure you will agree with me that this is not a game.
I am sure you will find the enclosed DVD interesting, but if you require any further information, feel free to surf the Sky programme guide, any day, any time, for other examples of misleading television.
Yours faithfully.
VICTIMS OF SUCH PRACTICES SHOULD CONTACT itvbiggametvvictims@hotmail.co.uk WITH A DESCRIPTION OF WHAT THEY SAW HAPPENING ON ANY LATE NIGHT QUIZ ALONG WITH ANY LETTERS OF COMPLAINT TO REGULATORS
I do not know how Ofcom responded to this concerned viewer but this is how BGTV responded to him:
Dear William, Thank you very much for your e mail and your interest in Big Game TV! Unfortunately I’m sorry to say that we are not able to divulge the methodology behind each and every question. The methodology behind Big Game TV puzzles is regarded as Intellectual Property, and is considered as such by our regulator ICSTIS. This is both to prevent our competitors from copycatting our puzzles, and also telling all our viewers how to do them all! They are designed to be “puzzling” and each will require a certain amount of lateral thinking and have proven to be very popular. We have in the past had a number of callers who have been able to calculate the answers to many of these puzzles, so I assure you that there is a logical calculation for these questions. Kind Regards Carrie Tooke. Big Game TV PO Box 5372 London.
Regulatory problem re the above.
Ofcom and Icstis have a duty to request BGTV proof the following:
a) the methodology
b) Would a ‘reasonable man’ be able to solve it?
c) Were presenters on the taped evidence misleading viewers by suggesting that the puzzle was easy?
d) A game becomes a lottery when all skill is removed by leaving only the correct answer on screen, therefore 20% of profits from the two above games alone should have been given to good causes.
By not investigating in this way complainants go around in circles because the game producers use Icstis and Ofcom to protect themselves from revealing methodology and when the regulators receive a complaint they fail to check with broadcaster if all is above board re methodology and that the public are safe to take part.
Similarly, regarding the freedom of choice of viewer/victims:
From oral evidence 10:
Ms Vahl (BBC Radio 4) When I took the Big game television fraud allegations to Icstis, Icstis said, "It says on screen it is going to cost you 75p a go." I said, "You don't know how many times it is going to cost you." They said, "That's your choice."
Re Icstis and choice - The short complaint below shows Ms Tomsett to have complained to Ofcom. If so, did Ofcom request taped evidence to match call volumes with?
Memorandum submitted by Ann Tomsett
I am very glad to see in the Financial Mail on Sunday that you are to chair a committee to discuss Quiz Shows.
One evening I joined in when the prize was £25,000, convinced I had the answer but every call was a negative reply. My Telewest bill was £140, not the usual £60. I had not realised I had phoned so intensely. That night I continued to watch out of interest, but was astonished when the show went off air (after three hours) and no one had won the prize and no answer was given either. It was then that I realised the whole thing was a scam to raise funds for failing TV companies. [emphasis added - Re the words ‘failing tv companies’ please refer back to Rodney Austin’s comments at the beginning of this letter.]
I made inquiries as to where I could complain. I am a person of average intelligence, but there are many who have not even that and I could see great hardship with paying bills coming to the more vulnerable. Especially as Telewest does give out small prizes of between £100 to £800—to cover themselves.
I wrote to Ofcom and told them pretty much what I mentioned here and I am very pleased that letters like mine are being taken up and done something about.
VICTIMS OF SUCH PRACTICES SHOULD CONTACT itvbiggametvvictims@hotmail.co.uk WITH A DESCRIPTION OF WHAT THEY SAW HAPPENING ON ANY LATE NIGHT QUIZ ALONG WITH ANY LETTERS OF COMPLAINT TO REGULATORS
My point to the regulators has always been that viewers’ choice is severely limited because they are/were constantly misled. In the Letter to Miranda doc I describe how victims were allowed to get through until the clue was put on screen. When the clue appeared the presenters would urge people to hit the redial as she/he really wanted to give the money away and move on to the next game. Come on guys, where are all my callers?
Bearing the above in mind, the quiz becomes a problem of who will guard the guardians? Ofcom failed to act intra vires to limit the freedom of ITV/BGTV to the end of safeguarding the public interest –freedom for the pike is death for the minnows.
I would like the information officer to seriously consider requesting that Ofcom and Icstis make ALL complaints on ALL quiz shows available to an independent party – that is if my FOI request fails. Please bear in mind that the Ayre report says that no complaints have been upheld by the regulators. This is despite the evidence given above of taped recordings of misleading quizzes/large scale fraud being forwarded to Ofcom by concerned viewers
Yours sincerely
Bob Winsor
PS I am also concerned by the fact that two BGTV execs are ex-Carlton TV, The controller of ITV2 (piloted BGTV) is also ex-Carlton TV and two Board members of ITV are also ex-Carlton TV. I wonder if this is the reason that ITN Legal and Compliance allowed BGTV to broadcast from the ITN Building unchecked?
