BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

DB Sport was the title of the programme broadcast by CTV at 9.00pm on 9 August 1993.

The Secretary of the Group Opposed to Advertising of Liquor (GOAL), Mr Turner,

complained to Canterbury Television Ltd that the item breached the broadcasting

standards in a number of ways. In contravention of the requirements, the backdrop

behind the presenter carried the logo of a liquor company, an interview with a sports

representative was contrived to show other liquor company logos, and the sponsor's logo

was shown in the corner of the screen for an excessively long period.

CTV upheld the aspect relating to the backdrop, adding that it intended considering

adjusting the programme's format. However, it did not consider that the interview was

contrived, or that the logo had been focussed on unduly or shown for an excessively

lengthy period. Dissatisfied both with some aspects of the complaint not upheld and the

action taken on the aspect upheld, GOAL 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 upheld the aspects of the complaint which

referred to standards A3.a, b and c and ordered CTV to broadcast a summary of the

decision.

Decision

The members of the Authority have viewed the programme complained about and have

read the correspondence (summarised in the Appendix). As is its practice, the Authority

has determined the complaint without a formal hearing.

The Secretary of GOAL, Mr Cliff Turner, complained to CTV about aspects of its broadcast

of DB Sport from 9.00–10.00pm on 9 August 1993. He listed the provisions in the

Additional Programme Standards which he alleged were contravened. Following the

enactment of the Broadcasting Amendment Act 1993 which handed responsibility for

complaints about advertisements to the Advertising Standards Complaints Board (ASCB),

the Additional Standards are now part of either the Programme Standards A1 to A4 (the

BSA's responsibility) or the ASA Code for Advertising Liquor (the ASCB's responsibility).

The rewritten provisions were acknowledged by GOAL when it referred its complaint to

the Authority. In its referral, it alleged that the broadcast breached aspects of standard A3

of the Programme Standards which reads:

            A3        Broadcasters will ensure that the incidental promotion of liquor is

             minimised and in particular:

                        a.         Will not be a party to any contract or arrangement where incidental

                         liquor promotion is a contrived part of the programme

                        b.         Will ensure that backdrops and props for any in-house studio

                         programme do not carry liquor promotions (not applicable to radio)

                        c.          Will not unduly focus in a live or on-location event on any

                          particular advertising signage, logo or any other sound or visual

                          effect which promotes liquor

                        d.         Will not broadcast anything which is in breach of section 1, relating

                         to incidental promotion and saturation, of the Voluntary Sports

                         Code for Liquor Advertising and Promotion on Television.

It is recognised that incidental liquor promotion occurs from time to time in

programmes where broadcasters have little or no control over the situation. In

those situations they must minimise the exposure to the best of their ability. Where

broadcasters have control of the situation, they will ensure that the standards

regarding incidental promotion are followed in the spirit as well as the letter.

As its first point, GOAL alleged that the broadcast breached standard A3.b as a backdrop

promoting Dominion Breweries was seen behind the presenter on a number of occasions.

CTV upheld this aspect and advised GOAL that it intended to discuss the matter with the

advertiser "with a view to adjusting the format of the programme".

GOAL referred this aspect to the Authority on the basis that it was dissatisfied with the

broadcaster's actions. It argued that CTV should have decided to stop using the backdrop

immediately. In view of the previous complaints about the programme DB Sport,

discussed below, the Authority agreed with GOAL that CTV's actions, having upheld this

aspect of the complaint, were insufficient in the circumstances and that the use of the

backdrops should have stopped immediately.

GOAL has referred complaints about the programme DB Sport to the Authority on three

previous occasions.

The first complaint about the programme broadcast between 7.00–7.30pm on 7

September 1992 alleged that the broadcast breached the prohibition of programmes

which give the impression of the saturation of liquor promotion. The provision under

which the complaint was made has since been replaced by standard A1. The complaint

was upheld in Decision No: 8/93 dated 15 February 1993.

The second complaint referred to the broadcast of DB Sport at the same time on 9

November 1992 and was made before the first decision was issued. It also alleged a breach

of the prohibition on saturation which the Authority again upheld, noting that the

frequent displays of the DB logo – approximately 50 in less than 30 minutes – amounted

to a "gross contravention" of the rules. It declined to uphold the complaint that the entire

programme was a liquor advertisement and declined to make an order on the basis that

the complaint was made before Decision No: 8/93 was issued. This ruling was contained

in Decision No: 69/93 dated 9 June 1993.

The third decision (No: 93/93, dated 9 August 1993) referred to the broadcast of DB

Sport from 7.00–7.30pm on 1 March 1993. It also alleged a breach of the saturation of

liquor promotions and, although the liquor promotions were not as overwhelming as the

9 November broadcast, the Authority upheld the complaint and ordered CTV to broadcast

within 14 days a brief summary of the decision.

It will be noted that this complaint refers to the broadcast on 9 August 1993, before the

broadcaster would have received Decision No: 93/93 (coincidentally dated 9 August

1993), and that the programme has increased from ½ an hour to 1 hour and is shown at

a later hour.

It should also be noted that this complaint does not focus on the prohibition of the

saturation of liquor promotion – as did the above three – but on the components in

standard A3 which were not included in the standards under which the earlier complaints

were determined.

When it referred this current complaint to the Authority about the broadcast on 9 August

1993, GOAL alleged that in addition to the standard A3.b aspect of the complaint which

CTV upheld, the interview with Mr Barry Eade about the sport of pool breached standard

A3.c as there were two liquor promotions clearly visible behind him. As the position for

filming Mr Eade had been "carefully contrived" to allow the liquor promotions to be seen,

GOAL alleged that A3.a had been contravened also. Moreover, if the sports body which

organised the pool competition was a member of the New Zealand Sports Assembly, there

appeared to be a breach of standard A3.d.

The A3.c prohibition on unduly focussing on advertising signage during an on-location

event was the first aspect of the complaint the Authority considered and, upon viewing the

item, the Authority upheld it. Indeed, no effort seemed to have been made to meet the

overriding requirement in standard A3 that the incidental promotion of liquor be

minimised It appeared that the interviewee had been positioned to ensure that his head

was framed by two large liquor signs. Moreover, the interview had taken place at a site

where (because of the empty surroundings) it would not have been difficult for the

interviewee to have sat or stood elsewhere to ensure that any incidental liquor promotion

screened was minimised.

The Authority then assessed the aspect of the complaint which alleged a breach of standard

A3.a. The standard has two limbs and requires that the incidental promotion of liquor be

contrived and that the broadcaster be a party to the arrangement for the broadcast of the

contrivance.

Because of the way the interviewee had been positioned in order to allow the signs to be

seen during the broadcast, the Authority decided that the liquor promotion which had

been broadcast was a "contrived" part of the programme in breach of the first requirement

in standard A3.a.

The second limb required the Authority to decide whether or not CTV was party to a

"contract or arrangement" for the incidental promotion of liquor. In a number of

previous decisions, the Authority has considered what explicit level of agreement is

necessary for an "arrangement" within the meaning of standard A3.a to be present.

However, as it has not been necessary to determine precisely the components of an

"arrangement" in the earlier decisions, the Authority has not ruled conclusively on the

point. A minority, however, has indicated some sympathy with GOAL's argument that

"control" by the broadcaster of the situation which is portrayed is sufficient to amount to

an "arrangement".

Despite the absence of a previous decision which has defined the outer boundaries of a

"contract or arrangement", the Authority unanimously is of the opinion that an

arrangement which involves the exchange of money or some other consideration is

sufficient. In other words, if "payment" of some kind was involved, the requirement in

standard A3.a would be met.

In deciding whether "payment" was involved on this occasion, the Authority referred back

to Decision No: 69/93 when it stated:

When determining that complaint, the Authority had been provided with part of

the agreement between CTV and DB in which the brewery specifically declined to

pay a fee for sponsorship.

That Decision continued by explaining the effect of the agreement:

Rather [DB] agreed to buy commercials and/or trailers for the show each week the

cost of which was based on the ratings for the show. The sponsorship was not

regarded as a specific aspect of payment made by the liquor company for its

association with the programme. As stated in the Agreement:

                        In return we [DB] receive the sponsorship as added value in recognition of

                        that investment.

Whereas in that complaint, CTV denied that this arrangement amounted to payment, the

Authority decided DB benefitted from the "added value" of the sponsorship. It recorded:

In other words, the distinction between the liquor promotion explicitly paid for,

and the liquor promotion which was not explicitly paid for, is a technical or

semantic one. As sponsorship was expected by DB as part of the programme which

was broadcast, its removal was not a matter entirely at the broadcaster's whim.

Accepting that the wording in the agreement was not specifically designed to circumvent

the liquor advertising rules then extant, the Authority added:

Acknowledging that the agreement between DB and CTV was written in a way to

advance the commercial interests of the sponsor and the broadcaster and taking

the injunction about the spirit of the rules into account, the Authority concluded

that the sponsorship rewards accorded the sponsor of DB Sport were linked to and

constituted part of the formal arrangement between DB and CTV.

The Authority concluded:

Supporting the Authority's conclusion that the sponsorship arrangement amounted

to payment, the Authority again recorded that the arrangement between DB and

CTV did not refer to payment for the sponsorship but recognised that the

sponsorship was of benefit to the liquor company. The sponsorship promoted DB

and, for the want of a better term, increased the goodwill between the parties.

Goodwill is a recognised economic asset and, accordingly, its increase to the parties

can be regarded as a payment within the requirements of the legislative definition.

Applying that conclusion to the current complaint, the Authority decided that, as

"payment" in effect had been made, CTV had been party to a "contract or arrangement"

for incidental liquor promotion.

Consequently, as both limbs of A3.a had been met, the Authority upheld that aspect of the

complaint.

The final part of the complaint referred to the Authority alleged a breach of standard A3.d

in that the broadcast breached section 1 of the Voluntary Sports Code. GOAL complained

under this provision in view of the probability that "the sporting body which organised the

pool event" was a member of the New Zealand Sports Assembly. As CTV did not ascertain

this point, it declined to determine this aspect of the complaint.

Had the body organising the event been a member of the New Zealand Sports Assembly,

the Authority concluded, it would have been in breach of standard 1.6 of the New Zealand

Sports Assembly's Voluntary Sports Code for Liquor Advertising and Promotion on

Television. It reads:

            1.6       Backdrops for Tour/Event Announcements or Interviews

                        Backdrops shall focus on the specific team, event or tour and may

             incorporate sponsorship logos. Backdrops shall not be a predominant

             feature. There shall be no reference to liquor advertisements.

                        At pre-arranged interviews the placement of the interviewee shall not have

                        liquor signage as a predominant feature.

However, the Authority has been advised by the Sports Assembly that the event portrayed

was organised – not by a member of the national organisation – but by a particular club

which was not a party to the Voluntary Code. Accordingly, the Authority decided, the

broadcast did not breach standard A3.d.

For the reasons given above, the Authority upholds the complaint that the

broadcast by Canterbury Television Ltd of the programme DB Sport on 9

August 1993 breached standards A3.a and A3.c of the Programme

Standards for the Promotion of Liquor.

In addition, the Authority upholds the complaint that the action taken by

the broadcaster, having upheld the complaint under standard A3.b, was

insufficient.

The Authority declines to uphold the A3.d aspect of the complaint.

Having upheld a complaint, the Authority may make an order under s.13(1)(d) of the

Broadcasting Act 1989. Although CTV had not received Decision No: 93/93 at the time of

the broadcast complained about, it was aware from the earlier decisions that two other

complaints about the programme DB Sport had been upheld and that the Authority was

considering a complaint about a third. It was also aware that the standards under which

the third complaint was being assessed were more specific in what was required to

minimise the incidental promotion of liquor.

In the Authority's opinion, the present breaches confirm CTV's apparent cavalier approach

to the requirements about incidental liquor promotion and reflect its disdain for both the

specifics and the spirit of the standards.

Accordingly, the Authority has decided that it is appropriate to order the broadcast by CTV

of a statement summarising this decision and explaining the rationale for the standard

relating to the incidental promotion of liquor. As a consequence, the statement to be

broadcast shall include reference to the overall requirement that the incidental promotion

of liquor be minimised on radio and television. It shall note that, because of the potentially

powerful impact of the electronic media, such minimisation is required to reduce the

exposure of liquor promotion especially to the young and to reduce the social and health

problems which result from the misuse of alcohol.

The Authority also records that the words of standard A3.a will be revised during the

current review of the standards applicable to the incidental promotion of liquor to clarify

what is exactly meant by the phrase "contract or arrangement".

Order

The Authority orders CTV to broadcast on DB Sport within 14 days of the

date of this decision a statement approved by the Authority which is a

summary of this decision and which also includes the rationale for the

standard which requires that incidental liquor promotion be minimised.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
5 April 1994

Appendix

GOAL's Complaint to Canterbury Television Limited

In a letter dated 23 August 1993, the Secretary of the Group Opposed to Advertising of

Liquor (GOAL), Mr Cliff Turner, complained to Canterbury Television Ltd about a number

of aspects of the programme DB Sport broadcast at 9.00pm on Monday 9 August.

The complaint was laid under the additional programme standards for the control of

liquor promotion on radio and television dated April 1993 for which the Broadcasting

Standards Authority was responsible at the time. Following the enactment of the

Broadcasting Amendment Act 1993, the additional standards have been incorporated into

either the Advertising Standards Authority Code for Advertising Liquor (about which

complaints are considered by the Advertising Standards Complaints Board (ASCB)) or the

Programme Standards for the Promotion of Liquor (for which the Broadcasting Standards

Authority is responsible). Thus, some of the matters raised in the original complaint are

not now covered by the Broadcasting Standards Authority although when Mr Turner

referred GOAL's complaint to the Authority, he confined the referral to matters within the

Authority's jurisdiction.

In its original letter of complaint, GOAL raised five matters under additional standards

14.a, 14.b, 14.c, 14.d and 13.b. The first four are now programme standards A3.a, A3.b,

A3.c and A3.d for which the Authority remains responsible and the fifth, under standard

13.b, is now standard 11.g of the ASA code and the ASCB's responsibility.

Under standard 14.b (A3.b), GOAL complained that the studio backdrop behind the

presenter promoted Dominion Breweries. Standard 14.c (A3.c) was contravened because

two DB promotions were clearly visible behind Mr Eade, a representative from the sport of

pool who was being interviewed. As that interview was contrived, it breached standard

14.a (A3.a). Further, the sport of pool had breached the Voluntary Sports Code which was

a breach of standard 14.d (A3.d).

Finally, as standard 13.b (ASA 11.g) allows a brief portrayal only of the sponsor's name,

the display of a DB promotion for 40 seconds was in breach.

CTV's Response to the Formal Complaint

CTV advised GOAL of its decision in a letter dated 15 November when it reported that the

complaint had been considered under the nominated standards.

CTV upheld the complaint under standard 14.b (A3.b), adding that it proposed to discuss

the matter with the advertiser "with a view to adjusting the format of the programme".

It declined to uphold the aspects of the complaint about the interview with Mr Eade as it

had not unduly focussed on the liquor signage, as it was not contrived and as it was not

aware that a member of the New Zealand Sports Assembly was involved. In addition, it did

not accept that a 40 second exposure contravened standard 13.b (ASA 11.g).

Reporting that it intended to draw the attention of the camera staff to the requirement of

standard 14.c (A3.c), CTV concluded:

Notwithstanding our rejection of certain aspects of your complaint, we will take

the whole format of the programme up with the advertiser with a view to altering

it to increase its compliance with the standards.

At the same time we have instructed our solicitors with a view to obtaining judicial

review of these additional standards, which appear to unfairly target this

programme, as against other liquor advertising far more likely to have adverse

consequences to susceptible viewers.

GOAL's Complaint to the Broadcasting Standards Authority

Dissatisfied with CTV's decision both on the aspects of the complaint not upheld which are

now covered by standard A3 and on the action taken on the aspect upheld, Mr Turner on

GOAL's behalf referred the complaint to the Authority on 22 November 1993.

In regard to CTV's proposed action on the aspect upheld, Mr Turner expressed his

displeasure that it would involve discussions with the advertiser only. He wrote:

CTV should have said that the use of the backdrop would cease immediately.

CTV's Response to the Authority

As is its practice, the Authority sought the broadcaster's response to the complaint. Its

letter is dated 24 November 1993 and CTV's reply, 9 December.

CTV reported that since the date of transmission, the programme's format had been

further revised to comply with the Codes. The changes had included the elimination of the

DB backdrop from the set.

GOAL's Final Comment to the Authority

When asked to comment on CTV's reply, in a letter dated 17 December 1993 Mr Turner,

on GOAL's behalf, argued that CTV had not addressed the complaint other than to change

its backdrops although, nevertheless, the DB logo still appeared as part of the studio

background.