BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Spectrum – documentary – Cuban cigar business – promoted cigar smoking – glamorised cigars – unbalanced – illegal

Findings
Principle 2 – no jurisdiction over Smoke-free Environments Act – no uphold

Principle 4 – not a controversial issue – no uphold

Principle 7 – freedom of speech – no uphold

This headnote does not form part of the decision.

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Summary

A Spectrum documentary broadcast on National Radio on 7 December 1999 focused on people involved in the cigar industry. Cuban growers and manufacturers were interviewed, as well as a retailer of cigars in New Zealand.

The Smokefree Coalition complained to Radio New Zealand Ltd, the broadcaster, that the programme promoted and glamorised cigar smoking, and gave considerable airtime to promoting the business of an Auckland retailer of cigars. It noted that no attempt had been made to present the evidence for the harm that cigar smoking causes to people’s health. It noted that it was illegal to promote tobacco products in New Zealand.

In its response, RNZ argued that the programme had dispassionately presented various viewpoints without any promotion of smoking which would have been in breach of the Smoke-free Environments Act. As for the complaint that it failed to refer to the health dangers, RNZ responded that balancing views about smoking did not have to be provided within the programme, and could arise in subsequent programmes. It declined to uphold the complaint.

Dissatisfied with RNZ’s response, the Smokefree Coalition referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have listened to a tape of the programme complained about, read the transcript, and read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.

A Spectrum documentary broadcast on National Radio on 7 December 1999 looked at "the tradition and mystique surrounding cigars from Cuba to New Zealand". The presenter spoke to tobacco growers and cigar manufacturers in Cuba, as well as to the owner of a cigar retailing business in Auckland. She also reported on her visit to Cuba where she had had a private tour of a cigar production factory in Havana.

The Complaint

The Smokefree Coalition complained to RNZ that the programme had promoted cigars. It argued that the Auckland cigar retailer had been given considerable airtime to promote and glamorise cigar smoking, as well as to promote his own business. In addition, the Coalition complained that the programme failed to give a balanced view of cigar smoking because it omitted the evidence that it harmed people’s health. It noted that cigar smokers were nine times more likely to develop lung cancer than non smokers, and that cigar smoking caused oral, oesophageal and laryngeal cancers. Further, the Coalition pointed out that the promotion of cigars was illegal under the Smoke-free Environments Act 1990 (SEA), and in its view, the broadcast had breached s.22 of the Act. It advised that it was referring the matter to the Ministry of Health.

RNZ’s Response

RNZ advised that it had assessed the complaint under Principles 2 and 4 of the Radio Code of Broadcasting Practice. Those Principles read:

Principle 2

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the maintenance of law and order.

Principle 4

In programmes and their presentation, broadcasters are required to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guidelines

4a  Broadcasters will respect the rights of individuals to express their own opinions.

4b  Broadcasters may have regard, when ensuring that programmes comply with Principle 4, to the following matters:

(i) An appropriate introduction to the programme; and

(ii) Any reasonable on-air opportunity for listeners to ask questions or present rebuttal within the period of current interest. Broadcasters may have regard to the views expressed by other broadcasters or in the media which listeners could reasonably be expected to be aware of.

The broadcaster reported that the programme had been made after the producer’s visit to Cuba earlier in the year, at which time she had conducted interviews in a major plantation and in one of Havana’s tobacco factories. She also interviewed an Auckland cigar retailer. The programme, it said, focused on the people involved in the cigar industry, and their opinions.

RNZ argued that the views were presented dispassionately, without promoting smoking. The Auckland retailer, it claimed, had given a neutral summary of the types of people who smoked cigars, drawing on his observation of those to whom he sold them. Later in the programme, the retailer had pointed out that smokers were generally aware of the dangers of smoking, while the presenter reported that Fidel Castro had given up cigar smoking in 1985 to set a healthy example to Cubans.

Dealing first with the complaint under Principle 4, RNZ argued that the period of current interest for smoking issues covered years rather than months. As a broadcaster, it pointed out, it was required to provide balance over the period of current interest. It further noted that the programme itself contained balancing material and that at other times on National Radio there had been and would be reports on the dangers of smoking. Finally it observed that the programme’s introduction had warned listeners about its content. It concluded that there was no breach of Principle 4.

Turning next to the complaint that Principle 2 was breached, RNZ began with an analysis of the SEA. It noted that under the Act a tobacco product was promoted only where its logo or company name was depicted and/or where there was an exchange of some value between one party and the broadcaster. In RNZ’s view, none of those criteria applied in this instance. It said that this suggested to it that the programme did not breach the definition in the Act.

In RNZ’s view, the item had not promoted the Auckland retailer’s business, or emphasised or glamorised the use of cigars. It argued that by contrasting the living conditions of the growers and those involved in processing tobacco in Cuba with the high value of the end product sold in other parts of the world, the presenter had successfully de-glamorised the use of Cuban cigars. RNZ also advised that in researching the programme, the presenter had contacted the Ministry of Health and that efforts had been made to comply with the Smoke-free legislation. It declined to uphold the complaint.

The Smokefree Coalition’s Referral to the Authority

The Coalition repeated its complaint that the programme had breached Principle 4 in not providing "significant points of view" either in the same programme or in subsequent programmes. It pointed out that RNZ had failed to provide any evidence of programmes which it had broadcast or planned to broadcast about the harmful effect of smoking cigars.

Secondly, it contended that the programme had breached s.22 of the SEA. In spite of the disclaimer at the beginning of the programme, it maintained that it had clearly promoted cigar smoking by making it appear glamorous and sexy. It quoted a New Zealand cigar retailer on the programme who said:

…obviously one of the first fascinations is a slinky, dark, sexual female rolling tobacco on a sweaty thigh. I mean that is a real turn-on to a lot of people with regards to cigar smoking…

Everybody, even if they haven’t smoked, they will try a cigar. Obviously if they are getting married they want cigars, if they’re having children or having babies, they want cigars. But people have heard so much about the pleasure, the enjoyment of smoking a cigar, they want to try it.

The Coalition also objected to the opportunity the retailer was given to promote his cigar business when he said:

You couldn’t get a better range be it in London, be it Paris, be it Rome, Switzerland, we have as much of stock of the finest cigars than they do. More and more people are contacting us through the Internet…

The Coalition advised that the Ministry of Health was formally investigating a breach of the SEA.

In a subsequent letter, the Coalition advised that it had received advice from the Ministry of Health that aspects of the programme had "breached the spirit of the Smoke-free Environments Act". In a letter to RNZ, a copy of which was provided by the Coalition to the Authority, the Ministry had written:

While parts of the programme encouraged the use, notified the availability and promoted the sale of cigars and smoking behaviour, it is unclear whether this was intentional. Therefore the Ministry does not intend to take any action in this instance. However, it should be noted that the broadcasting of such material leaves Radio New Zealand open to the inference that the promotion of tobacco products was intentional.

RNZ’s Response to the Authority

RNZ began by noting that it had not been advised that the Ministry of Health had referred a copy of its correspondence to RNZ to a third party (the Smokefree Coalition), which then referred a copy to the Authority. It said it was unclear what the status of this correspondence was. It also noted that the Coalition had incorrectly asserted that the Ministry had found that the programme was in breach of the SEA. RNZ pointed out that it made no such finding, but had formed a "view" that the programme breached the spirit of the Act. This, it continued, was quite different to a finding of a breach of the Act itself.

RNZ sought advice as to whether the Authority would consider this correspondence as part of its adjudication.

Principle 4 – controversial issue, significant points of view within period of current interest

RNZ began by observing that there might be some argument as to whether the programme dealt with "a controversial issue of public importance". However, it continued, even if the programme were considered to fall within the ambit of Principle 4, significant other points of view were presented within the programme. For example, it noted:

• The programme began with a health warning – a particular requirement of Principle 4b(i)
• Early in the programme, the presenter referred to the latest smoking statistics, the ban on the sale of cigar magazines, and the policing of cigar shops and bars for breaches of the SEA
• Reference was made to reports on the banning or withdrawal from sale of cigar magazines
• The owner of a cigar shop expressed his views on some of the effects of the SEA

RNZ pointed out that Principle 4 did not require "balance" but the presentation of significant points of view. It emphasised that this did not mean that such views had to be given equal time, but that it was sufficient that other significant points of view were made known. It added that where other points of view were a matter of common knowledge, detailed exploration or repetition was "hardly required."

There was also provision in Principle 4 that the broadcaster may have regard to the views expressed by other broadcasters or media which listeners could reasonably be expected to be aware of. RNZ attached 65 examples of print stories covering the issue of smoking published since January 1999. Similarly, RNZ said, it had run many stories on the same issue presenting other significant points of view.

In RNZ’s view, it was reasonable to assume that listeners were aware of the reports on the harmful effects of smoking. It argued that there were no particular limits on what could be considered the period of current interest for the topic of smoking and its effects. It pointed to the number of print reports covering the anti-smoking lobby’s views and advised that a review of RNZ’s record would provide a similar pattern.

RNZ contended that the merits and demerits of smoking and the propriety of imposing restrictions were topics of ongoing debate. The issue, it said, was smoking, and it noted that there had been considerable material broadcast both before and after the programme on that issue.

Principle 2 – maintaining standards consistent with the maintenance of law and order

RNZ referred to the dictionary definitions of law and order, and concluded:

The Principle requires broadcasters avoid broadcasts which may undermine the controlling influence of law or a state of respect for the law; it is not intended to place broadcasters in a form of double jeopardy should they breach an enactment other than the Act under which this Principle operates.

It said that there been no breach of this Principle.

Principle 7 – broadcasters required to be socially responsible

Next, RNZ examined the possibility of whether Principle 7 was applicable. That Principle reads:

Principle 7

In programmes and their presentation, broadcasters are required to be socially responsible.

Guidelines

7a  Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:

i)     factual, or

ii)    a genuine expression of serious comment, analysis or opinion, or

iii)    is by way of legitimate humour or satire.

7b  Broadcasters shall be mindful of the effect any programme may have on children during their normally accepted listening times.

7c  The time of transmission is an important consideration in the scheduling of programmes which contain violent themes.

7d  If a programme is likely to disturb, an appropriate warning should be broadcast.

7e  Broadcasters shall ensure that the incidental promotion of liquor is minimised.

7f  Advertisements and infomercials shall be clearly distinguishable from other programme material.

Arguably, it said, if RNZ were in breach of some other legislation, it could be considered not to have been "socially responsible." It noted that the Ministry of Health had formed the "view" that it had breached the spirit of the SEA. It was critical, RNZ argued, to note that the Ministry found no actual breach of the Act. It had only formed a view, rather than made some binding decision.

In RNZ’s view, the Authority could not rely on the Ministry’s opinion as to whether the Act was breached in spirit, noting that the Ministry was not a judicial body, and had given RNZ no opportunity to respond before forming its view on whether the programme breached the SEA. It continued:

For the avoidance of doubt, Radio New Zealand submits further that a "view" that a breach of the "spirit" of an enactment…falls well short of a test that says that a broadcaster has acted in a manner regarded as being less than "socially responsible".

It concluded there was no breach of this Principle.

RNZ then made some observations with regard to the application of s.22 of the SEA. Its interpretation of the relevant provisions led it to the conclusion that promotion of tobacco products was the same as advertising and sponsorship. Advertising, it noted, was not permitted or undertaken on National Radio, and there was no reference to any sponsorship.

RNZ argued that the programme did not breach the provisions of s.2 of the SEA because it was not a tobacco product advertisement which was "used to encourage the use or notify the availability or promote the sale of any tobacco product or to promote smoking behaviour." In its view, the purpose of the broadcast was critical. Here, it said, reporting on the fact that tobacco products were available, or describing those who smoked did not, in any reasonable view, constitute a "tobacco product advertisement."

RNZ acknowledged there might have been an incidental dissemination of the identity of the Auckland cigar retailer, but argued that that was not a breach of the Act. In its view, insufficient information was given to identify the particular location of the retailing outlet. Furthermore, it said, it was not the purpose of the programme to identify the cigar retailer.

The purpose was, RNZ continued, to investigate the culture of Cuban cigars by:

• describing those who smoked, and
• their reasons for doing so, or what part smoking played in any culture

It then turned to the particular aspects of the broadcast to which the complainant objected.

First it dealt with the description of the "slinky, dark, sexual female rolling tobacco on a sweaty thigh", noting that when viewed in their full context, the words expressed the belief of the interviewee that there was a romantic side to Cuba.

Turning to the second quotation complained about, which listed the types of people who enjoyed cigars, RNZ noted that this comment was made in answer to the question of who smoked a cigar. Given that the speaker was a retailer of cigars, it contended that his view had some validity. It maintained that he had not encouraged cigar smoking.

The third quotation complained about, which discussed the retailer’s range and sales, was not, RNZ argued, a promotion of the business. Significantly, it said, no details were provided by listeners as to how to contact him.

Further comment on Principle 2

RNZ argued that while it might be under an obligation to abide by the law, the Bill of Rights conferred a right on citizens to criticise the law or particular provisions.

In conclusion, it rejected all of the Coalition’s assertions that the programme breached the Radio Code of Broadcasting Practice.

The Smokefree Coalition’s Final Comment

The Smokefree Coalition persisted with its view that the programme had made no effort to provide "significant points of view" and present facts about the harm caused by tobacco smoking.

The Coalition said it not only agreed with the Ministry’s legal advice from the Crown Law Office that the programme had breached the spirit of the SEA but, taking it one step further, argued it was in full breach of that Act.

The Coalition expressed surprise that RNZ had taken issue with the fact that a copy of a letter from the Ministry of Health to RNZ had been forwarded to the Authority. It said it expected the contents of the letter to be considered by the Authority along with other evidence when it determined its complaint.

RNZ’s Further Comment

RNZ expressed its concern that the Coalition appeared to seek to give standing to a copy of a letter to it from the Ministry of Health. It contended that the Coalition was attempting to persuade the Authority that it should rely on the Ministry’s opinion as impartial evidence.

RNZ further noted that the Coalition had originally claimed that "initial legal advice" to the Ministry of Health had indicated that the programme was in breach of the law. In fact, RNZ observed, the letter it received from the Ministry did not confirm this, stating only that the programme was in breach of the "spirit" of the law. It added that it had no knowledge of that advice being from the Crown Law Office, as stated by the Coalition.

Again RNZ asked the Authority to indicate whether it was intended that this correspondence would be relied upon in its deliberations. It emphasised that it had not had an opportunity to be heard in relation to the letter’s contents, and that if the Authority considered the letter it would be in breach of natural justice. In conclusion, it wrote:

The Ministry of Health has the right to bring a prosecution if it believes it has appropriate evidence that the law has been breached. The "evidence" in this case is in the public domain. It has been broadcast on National Radio. The Ministry has chosen not to prosecute. It would be unfair and unreasonable for the Ministry’s comments about the "spirit" of the law to then be used by another authority as "evidence" that the law was breached without any proper opportunity for our case to be put.

The Smokefree Coalition’s Further Comment

The Coalition reiterated that the Ministry provided information to complainants as a matter of course and this was why it had passed on to the Authority the Ministry’s letter to RNZ. It emphasised that there was nothing sinister in its mention of the Crown Law Office advice, pointing out that it was the normal source of legal advice on which the Ministry based its views.

RNZ’s Further Comment

RNZ said it considered the Coalition’s response required further comment. It repeated that in its view, the Coalition had introduced "new and unsubstantiated material" because it had not seen or heard of a Crown Law opinion in relation to this matter.

It repeated its view that it would be a breach of natural justice if the Authority gave any attention to this advice because RNZ would have had no opportunity to respond to it. As a final point, it noted that the Authority was not the appropriate body to determine whether the SEA had been breached.

The Authority’s Findings

The Ministry of Health’s legal advice

The Authority’s view is that the legal advice received by the Ministry and forwarded to the Coalition is not relevant to its determination of this complaint. In this regard, it refers to an earlier decision (No: 1998-140) in which a complaint about the portrayal of cigars on a television lifestyle programme was upheld. There, it wrote:

The complainant further raised a concern that this item contravened the provisions of the Smoke-free Environments Act 1990. Whether or not the provisions of that Act have been contravened is not a matter for the Authority as it is not the policing agency under that Act. In addition, there is room for differing views about some of the definitions in that Act, and whether a programme such as the present one could be said to be a tobacco product advertisement for the purposes of the Act. It is not necessary, in making its finding that broadcasting standards have been breached, for the Authority to make any finding on the broadcaster’s obligation under the Smoke-free Environments Act.

Although in that decision the television equivalent of Principle 2 was not in issue, the Authority reiterates that it does not have jurisdiction over the SEA. In its opinion, a potential breach of the SEA – whether in spirit or in fact – is not a matter for its adjudication.

Principle 2 – standards consistent with the maintenance of law and order

The complainant contended that RNZ was obliged, by the SEA, to refrain from promoting tobacco products. In its view, the programme had promoted cigars and was thus in breach of that legislation and therefore of Principle 2. RNZ responded that the principle did not require the broadcast to itself be lawful, and argued that the principle was not intended to place broadcasters in a form of double jeopardy should they breach any other enactment.

The Authority’s view on the relevance of the SEA is articulated above. It repeats that a potential breach of the SEA is not a matter for its adjudication. The Authority notes that while a prosecution could be evidence of a breach of the principle, it is not necessarily conclusive. On previous occasions, it has found a breach of Principle 2 where the broadcaster has actively encouraged breaking the law, or has abused the judiciary and its processes. On this occasion, and notwithstanding the Ministry’s view that the SEA was breached in spirit, the Authority does not consider the broadcast crossed that threshold. As a final point, it does not agree with RNZ’s contention that the principle exposes a broadcaster to double jeopardy should it breach any other enactment. It reminds RNZ that broadcasting standards are distinct from criminal liability. It declines to uphold the complaint under Principle 2.

Principle 4 – controversial issue – significant other points of view within the period of current interest

The Coalition contended that the failure to refer to the health ramifications of cigar smoking resulted in a breach of this principle. RNZ argued that even if the programme were within the ambit of the principle, it had complied with the principle because significant other points of view had been presented both within the programme and within the period of current interest. RNZ also provided examples of stories in the print media to demonstrate that other media provided balancing views.

In its determination of this aspect of the complaint, the Authority first has to decide whether the programme’s content constituted a controversial issue of public importance to which the principle applies. On balance, the Authority concludes that the topic of smoking is no longer a controversial issue which comes under the ambit of the principle. It notes that the health implications of smoking are now so well documented that it is only remotely possible that a listener would not already be aware of the dangers of smoking. Indeed, it is arguably no longer controversial to suggest that smoking has a direct and negative impact on health. Having reached the conclusion that the topic is not controversial, it is not necessary for the Authority to proceed further to determine whether reasonable efforts were made to present other significant points of view in the programme. The Authority declines to uphold this aspect of the complaint.

Principle 7 – broadcasters required to be socially responsible

RNZ conceded that, if it were in breach of some other legislation, it was arguable that it had not acted in a socially responsible way. However, it noted, the Ministry of Health had found no actual breach of the legislation, having merely formed a "view" that it had been breached in "spirit".

The Authority notes that the programme purported to explore "the tradition and mystique surrounding cigars from Cuba to New Zealand". It was framed as a magazine-style programme which explored the culture of cigar smoking and highlighted the stark disparities between the meagre existence of the tobacco growers and cigar makers in Cuba and the glamour of the lifestyles of those to whom they are marketed. It is the Authority’s view that the programme contained an element of advocacy of cigar smoking – whether or not intentional – which must be examined under this principle.

The question for the Authority is whether the portrayal of cigars and cigar smoking in the programme was socially responsible in compliance with principle 7.

The Authority begins by observing that it is legal to grow tobacco and to make and sell cigars. Cigars and other tobacco products are marketed to consumers who, increasingly, have a heightened awareness of the public health risks of smoking and are familiar with the extensive debate which has occurred for some decades relating to smoking-related illnesses. Against this background of legal activity is set the legislation which prohibits the promotion of tobacco products.

The Authority acknowledges the legal advice forwarded from the Ministry of Health which expressed a view that, although the programme had not breached the SEA, it had contravened the "spirit" of the Act.

At the heart of this matter are the concepts of freedom of expression and editorial independence which must be balanced against the responsibilities imposed on the broadcaster by the Broadcasting Act. In balancing the competing interests and forming a conclusion on social responsibility, the Authority bears in mind s.14 of the New Zealand Bill of Rights Act 1990, which provides:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

The Court of Appeal has, in recent cases, held that the media’s right to free expression on public issues is basic to our democratic system and one which ought not to be restricted without very good reason (see for example Gisborne Herald v Solicitor General [1995] 3 NZLR 563 at 571). The Authority is persuaded by these findings and has taken them into account as a factor in reaching its decision on the application of Principle 7. Nevertheless, it notes, there are certain limitations on freedom of expression set out expressly in the Broadcasting Act 1989 in section 4. Further limits on broadcasters arise through the operation of codes dealing with the matters set out in section 21. The codes provide reasonable limits on freedom of expression consistent with the provisions of the New Zealand Bill of Rights Act.

Notwithstanding the prohibitions contained in the smoke-free legislation and the Authority’s view that the programme contained an element of advocacy of cigar smoking, on balance the Authority concludes that the level of advocacy was not such that it breached Principle 7.

As a final point in its consideration of the applicable guidelines under this principle, the Authority expresses its view that the programme, which was targeted at an adult audience, was unlikely to be of interest to children.

Conclusion

The Authority makes the following observations in conclusion. While it has declined to uphold the complaint, it has not been persuaded by all of the arguments put forward by RNZ.

First, it reassures RNZ that it is aware that as a matter of natural justice, parties to a complaint must be allowed the opportunity to respond to any submissions the Authority receives before it determines a complaint. In accordance with the Authority’s invariable practice, RNZ has had the opportunity to respond to all the correspondence received.

In relation to its finding under Principle 2, the Authority repeats that it does not accept RNZ’s argument that it would be unable to find that a broadcaster which had committed an illegal act also breached the principle because that would amount to "double jeopardy". Broadcasting standards are distinct from any criminal liability.

Finally, the Authority refers to RNZ’s interpretation of Principle 4, in which it states that it does not consider that the principle amounts to a requirement to provide balance. The Authority disagrees. It considers that such a requirement is implicit in the wording of the principle.

For the reasons set forth above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Rosemary McLeod
Member
27 July 2000

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.    Smokefree Coalition’s Complaint to Radio New Zealand Ltd – 15 December 1999
2.    RNZ’s initial response – 16 December 1999
3.    RNZ’s Response to the Formal Complaint – 13 January 2000
4.    Smokefree Coalition’s Referral to the Broadcasting Standards Authority –
      17 February 2000
5.    RNZ’s Response to the Authority – 23 May 2000
6.    Smokefree Coalition’s Final Comment – 13 June 2000
7.    RNZ’s Further Comment – 16 June 2000
8.    Smokefree Coalition’s Further Comment – 21 June 2000
9.    RNZ’s Further Comment – 23 June 2000