BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The probable batting order for the New Zealand cricket team in the forthcoming test

against Australia was the topic of a sports news item included on One Network News

broadcast between 6.00–6.30pm on Thursday 2 December 1993.

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

complained to Television New Zealand Ltd that the item showed team members practising

in shirts with large brewery logos on their chests and backs. Because of the size of the

logos, GOAL maintained that the broadcast breached the broadcasting standards.

Pointing out that the logos were seen only incidentally while showing the players

practising, TVNZ declined to uphold the complaint. Dissatisfied with that decision, 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 complaint.

Decision

The members of the Authority have seen the item 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.

Mr Cliff Turner, Secretary of GOAL, complained to TVNZ about a sports news item which

showed members of the New Zealand cricket team practising for a forthcoming test

against the Australian team. The New Zealand players were shown bowling and batting in

the nets and, while doing so, were wearing practice clothing which carried large logos for

a liquor company on the front and the back of their shirts. The item also included an

interview with team captain (Ken Rutherford) when, as his head and shoulders were

tightly framed, it was not apparent whether his clothing carried any logos.

The item, Mr Turner maintained, was in breach of standard A3.d of the Programme

Standards for the Promotion of Liquor. Standard A3 requires broadcasters to minimise the

incidental promotion of liquor and, specifically, paragraph d requires broadcasters to

comply with the Voluntary Sports Code. As the logos seen were neither reasonable sized

nor discreet, Mr Turner continued, the Voluntary Code had been contravened. He cited

standards 1.3.3 and 1.3.5.

TVNZ pointed out that the appropriate standards in the Voluntary Code were 1.3.4

(Practice Apparel) and 1.3.5 (Casual Apparel) and not 1.3.3 as it applied to competition

apparel.

Standard A3 provides:

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.

The relevant Voluntary Sports Code standards read:

1.3.3 Competition Apparel

Reasonably sized logos as defined by international and national rules

are permitted on the following areas: –

> Chest

> Sleeve

> Back

> Hats

> Shorts/Longs

> Socks

> Lapels/Collars

> Sweatbands

1.3.4 Practice Apparel

Practice apparel may incorporate sponsors' logos as defined by

international and national rules. There shall be no reference to

liquor advertisements.

1.3.5 Casual Apparel

It is acceptable for sponsored athletes to appear in event-related

television interviews in clothing which is discreetly branded.

Discreet logos as defined by international and national rules are

permitted on the areas: –

> Chest

> Sleeve

TVNZ argued that standard 1.3.4 had not been contravened as there were no references to

liquor advertisements and, since none exist for cricket, neither international nor national

rules had been breached. It also maintained that standard 1.3.5 had not been breached

during the interview with the captain as any logos on his casual clothing had been

eliminated from the broadcast during the tightly framed shot.

Accordingly, TVNZ concluded, standard A3.d of the Programme Standards had not been

contravened as the provisions in the Voluntary Code were not breached.

Previous Relevant Decisions

In its initial letter of complaint, GOAL referred to a decision by TVNZ's Complaints

Committee which upheld a complaint about the practice jerseys worn by two rugby

players bearing liquor company logos of a similar size to those now displayed on the

cricketers' practice apparel. TVNZ explained that it upheld aspects of that complaint

because the players had been performing for the camera and consequently had been

filmed in a situation over which it had some control. (Some other aspects of the complaint

about that item were referred to the Authority – see Decision No: 22/94.)

When he referred this complaint about the cricketers' practice clothing to the Authority,

Mr Turner of GOAL maintained that this complaint should be upheld for the same

reasons. In addition, he referred to another complaint, which had been upheld by TVNZ's

Complaints Committee when the logos on the competition apparel worn by the

Canterbury cricket team were found, under standard 1.3.3 of the Voluntary Sports Code,

to breach the national rules for size of liquor company logos.

Mr Turner argued that TVNZ's decision not to uphold this current complaint about the

broadcast showing cricket players' practice apparel was inconsistent with those two

decisions.

TVNZ acknowledged that it might be argued that it had been inconsistent in upholding the

complaint about the size of the logos on the competition apparel worn by the Canterbury

cricket team and not this complaint. However, it noted that the complaint on that

occasion alleged that the competition apparel contravened standard A3.d because it

transgressed the requirements in nominated standards in the Voluntary Code. On

investigation TVNZ had found that the Canterbury Draught logos breached one of the

Shell Cup Cricket rules by a few millimetres and consequently it upheld the complaint on

those grounds under standard 1.3.3 of the Voluntary Code. It had not upheld the

complaint on the grounds that the broadcaster had failed to minimise the incidental

promotion of liquor under standard A3.

This complaint

TVNZ argued that this broadcast minimised the incidental promotion of liquor in the

sequences over which it had control as required by standard A3. Standard 1.3.3 of the

Voluntary Code was inapplicable as it referred to competition apparel and, it continued,

the specific requirements contained in standards 1.3.4 and 1.3.5 were complied with. It

emphasised that, unlike the rugby situation, on this occasion it was filming a news story in

a situation over which it had little control.

In his final comment to the Authority, Mr Turner on GOAL's behalf argued that an

application of the spirit of the Code would result in a decision that logos on practice

apparel must be "reasonably-sized". As a final point and acknowledging that the matter

had not been raised in the original complaint, Mr Turner suggested that the large size of

the logos gave the item "an impression of saturation" in contravention of standard

1.3.2(c) of the Voluntary Code.

The Authority believed that neither GOAL's nor TVNZ's approach during the early

exchange of correspondence adequately addressed the central issue raised by the broadcast.

The Authority agreed with TVNZ that standard 1.3.4 of the Voluntary Code, which deals

with practice apparel, was applicable but, also in concurrence with TVNZ, agreed that it

did not contain any specific requirements which were relevant to the broadcast

complained about. However, the Authority was unable to agree with TVNZ that the only

other applicable provision was the overriding principle in standard A3.

The Authority considered that standard 1.3.2 of the Voluntary Sports Code was the most

relevant provision and, in particular, 1.3.2(c).

Section 1.3 of the Voluntary Sports Code is entitled Official Team Apparel and begins:

Note: The following clauses re competition, practice and casual apparel refer to the

clothing provided as part of the team issue (referred to hereafter as official team

apparel) and not to the personal clothing of the athlete.

Standard 1.3.2 provides:

1.3.2 Sponsors' logos as defined in international and national rules are

permitted in certain areas provided that: –

(a) Sponsors comply with all internationally and nationally

determined rules regarding size of logos;

(b) Such logos form a genuine part of the competition wear; and

(c) Sponsors and sporting organisations take all reasonable steps

to ensure that logo exposure on apparel avoids the impression

of saturation.

The purpose of this standard is abundantly clear. It accepts sponsors' logos provided

certain requirements are met and that they avoid the impression of saturation.

The Authority then considered the meaning of the requirement in clause (c) to "take all

reasonable steps" to avoid "the impression of saturation".

In its introduction, the Voluntary Code imports the definition of "saturation" contained in

the Broadcasting Standards Authority's Programme Standards for the Promotion of Liquor

which reads:

"Saturation" refers to a degree of exposure which gives the impression that liquor

promotion is dominating that viewing or listening period.

However, because the Voluntary Code and the Broadcasting Standards Authority's

Programme Standards are designed for different purposes, the Authority believed that the

Programme Standards's definition of saturation was inappropriate. The Programme

Standards have been prepared in consultation with broadcasters and are concerned with

matters which are broadcast. The Voluntary Code has been prepared by the New Zealand

Sports Assembly and contains instructions with which sporting groups must comply in

situations where players are likely to be seen on television.

To explain further, whereas the Programme Standards are concerned with saturation

during "a viewing period", the Voluntary Code is concerned with the clothing worn by the

players. This interpretation conforms with the requirements in Voluntary Code standards

1.3.3, 1.3.4 and 1.3.5 (cited above) which deal specifically with logos on apparel.

Pursuant to the approach, it is apparent that standard 1.3.2(c) requires sporting

organisations and sponsors to take "all reasonable steps" to ensure that "logos on apparel"

(emphasis added) avoid giving the "impression of saturation".

By concluding that the Voluntary Sports Code applies to clothing, the Authority

acknowledges that standard A3.d puts broadcasters in the position of acting as Voluntary

Code enforcers. It is a role which they could well find unacceptable. However, the

sporting bodies have prepared the Voluntary Code and must take the utmost care to

comply with the self-imposed restraints. The Authority regarded the particular clothing

complained about on this occasion as a breach of the spirit as well as the letter of the Code.

With regard to this complaint about the logos on the practice apparel worn by the New

Zealand cricket players, the Authority did not contest TVNZ's assertion that it did its best to

minimise the incidental promotion of liquor when it showed the members of the cricket

team in practice gear. It also agreed with TVNZ that the situations relating to the earlier

rugby players complaint and this one were quite different. However, when the size of the

logos on practice clothing is so large as to dominate the apparel totally in any broadcast,

and highly visible, the broadcast has clearly breached standard 1.3.2(c) of the Voluntary

Sports Code. In addition, the impression of saturation of the clothing was reinforced in

this broadcast by the number and frequency of the displays of the logo. Accordingly, the

Authority concluded that the broadcast of the news item of the New Zealand cricket team

at practice contravened standard 1.3.2(c) of the Voluntary Code and, consequently,

standard A3.d of the Programme Standards.

For the reasons set forth above, the Authority upholds the complaint that

the broadcast by Television New Zealand Ltd of a sports item on One

Network News on 2 December 1993 breached standard 1.3.2(c) of the

Voluntary Sports Code and, consequently, breached standard A3.d of the

Programme Standards for the Promotion of Liquor.

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

Broadcasting Act 1989. As this is the first occasion in which it has applied standard

1.3.2(c) of the Voluntary Code, it considers it would be inappropriate to do so. The

Authority has been assured recently that the practice apparel worn by the players in the

New Zealand cricket team will not carry logos of a similar size in the future.

Moreover, acknowledging that each sport is primarily responsible for breaches of the

Voluntary Sports Code, the Authority accepts that broadcasters may be placed in very

difficult situations when a sport contravenes the Voluntary Code. However, now that the

provisions have been clarified, the Authority expects strict compliance by all parties.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
5 May 1994

Appendix

GOAL's Complaint to Television New Zealand Limited

In a letter dated 3 December 1993, the Secretary of the Group Opposed to Advertising of

Liquor (GOAL), Mr Cliff Turner, complained to Television New Zealand Ltd about an item

of sports news included on One Network News broadcast between 6.00 - 6.30pm on 2

December 1993.

The item, he wrote, showed members of the New Zealand cricket team wearing shirts

bearing large brewery logos on their chests and back. Referring to a recent decision by

TVNZ in which a complaint about rugby players wearing jerseys carrying logos of a

similar size had been upheld, Mr Turner stated that the broadcast portraying the clothing

worn by the cricketers breached the Voluntary Sports Code and, thus, the broadcasting

standards.

TVNZ's Response to the Formal Complaint

TVNZ advised Mr Turner of GOAL of its Complaints Committee's decision in a letter dated

4 February 1994. It reported that the complaint had been considered under standards

1.3.4 and 1.3.5 of the Voluntary Sports Code referring to practice apparel and casual

apparel respectively, and under standard A3.d of the Programme Standards for the

Promotion of Liquor which states that a breach of the Voluntary Code is a breach of

broadcasting standards.

Pointing out that the item showed members of the New Zealand cricket team practising

before the test with Australia, TVNZ noted that the standard accepted that practice apparel

might incorporate the sponsor's logo. It continued:

Going through the item, the [Complaints] Committee noted that each shot was

relevant to the news story being told and that the logos were seen only in incidental

fashion. It was necessary to show players going through their paces who were

familiar to viewers and it was simply not practicable to show, for instance, a bowler

delivering a ball only from the neck up.

At no time did the camera focus on the logos, and in fact many of the shots showed

the logos only from an oblique angle.

It was the view of the committee that the exposure of the logos on the practice

apparel was minimised as much as possible - given the fact that the story had, (if it

was to be credible), to include shots of recognisable New Zealand cricketers in

action.

The item had included an interview with the team's captain (Ken Rutherford) and, in

accordance with the standard applying to casual apparel (as compared with practice

apparel), TVNZ pointed out that the shot had been carefully framed to exclude the logo on

his shirt front.

As GOAL had referred to an earlier decision which TVNZ had upheld a complaint about

the logos on the jerseys of some rugby players, TVNZ explained that the situations were

different. In the rugby item, it remarked, the players had been performing for the camera

and had been filmed in a situation over which TVNZ had some control. On this occasion,

however, the item had portrayed the test team practising and the exposure of the logos

had been minimised and, during the part of the item over which it had had some control -

the interview with the captain - the exposure of the logos had not only been minimised

but had been eliminated altogether.

The complaint was not upheld.

GOAL'S Complaint to the Broadcasting Standards Authority

Dissatisfied with TVNZ's decision, in a letter dated 14 February 1994, on GOAL's behalf Mr

Turner referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of

the Broadcasting Act 1989. He also enclosed TVNZ's reply when it upheld another

complaint that the brewery logos on the shirts of the Canterbury cricket players during

the Canterbury v Otago Shell Cup match breached the Voluntary Code relating to

competition apparel.

In view of TVNZ's decision to uphold the complaint about the similar sized logos on the

rugby players' jerseys, Mr Turner expressed "astonishment" that the current complaint had

not been upheld.

He pointed out that TVNZ's "defence" on this occasion was the fact that it had no control

over the apparel worn by the players when practising. That approach, he argued, had

taken account of the proviso in standard A3 which reads:

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.

However, he continued, he believed that the proviso did not apply to the Voluntary Sports

Code, stating:

Broadcasters can never have control of what players wear when playing or

practising; if the let-out applies it means that there can never be a successful

complaint about players apparel. That would mean that Additional Standard A3.d

is unenforceable and thus worthless.

The wording of standard A3.d, he continued, imposed an "absolute prohibition" on

broadcasting anything which breached section 1 of the Voluntary Code. He then referred

to TVNZ's decision upholding GOAL's complaint about the clothing worn by the

Canterbury cricket players and asked why TVNZ had not invoked the proviso in standard

A3 on that occasion.

TVNZ's Response to the Authority

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

letter is dated 17 February 1994 and TVNZ's reply, 24 February.

First, pointing to the physical layout of standard A3, TVNZ maintained that the proviso

about the broadcaster's lack of control applied to paragraphs a - d and paragraph d, it

noted, was the one which referred to the Voluntary Sports Code.

Secondly, it dealt with the accusation of inconsistency made by GOAL. Referring to the

complaint upheld about the logos on the rugby players' jerseys, TVNZ said that the

broadcaster had had control over the situation and there had been no evidence that it had

tried to minimise the exposure of the logos. That broadcast was in breach of the

overriding principle in Standard A3 whether or not it was also in breach of the Voluntary

Code.

Accepting that Mr Turner might be correct in his comment about inconsistency when the

upheld complaint about the logos on the Canterbury cricket players was taken into

account as it had no control over the situation, TVNZ wrote:

... we had established that one of the teams was in breach (by a few millimetres) of

the rules governing logos on players' attire. It would seem churlish not to

acknowledge by upholding the complaint that Turner's actions had led to the

identification of that problem.

TVNZ then dealt with the current complaint. As the first point, it enclosed a report from

the New Zealand Cricket Council to confirm that there had been no breach of the

Voluntary Code as there were no rules about the size of logos on practice apparel. The

story, TVNZ argued as its second point, was a legitimate news story over which the

broadcaster had no control over the clothing worn by the players. Thirdly, as required by

the overriding principle in standard A3, exposure of the logos was minimised as much as

possible during the shots of the bowling and batting and eliminated completely during the

interview with the team's captain.

Repeating that there were no rules about the size of logos on practice apparel set by New

Zealand cricket, TVNZ concluded:

It may be of some comfort to Mr Turner to know that, even though there is no

suggestion from NZ Cricket Inc that the logos are in breach of the Voluntary Code,

plans are under way to modify them - apparently for aesthetic reasons.

GOAL's Further Comment to the Authority

In a letter dated 22 February 1993, Mr Turner asked the Authority to consider another

aspect of TVNZ's decision when, in November 1993, it upheld GOAL's complaint about the

logos on the practice jerseys worn by two Otago rugby players. He said that he had been

informed by TVNZ on that occasion:

The Head of the Sports Department has issued a memorandum to his staff advising

them that if they again find themselves confronted with logos on practice apparel

of the prominence of the Speights logos on the Ellis and Leslie jerseys they must

endeavour to keep them out of shot, persuade the players to remove the jerseys, or

make a decision not to shoot the item.

He added:

The recent frequent appearances of cricketers wearing huge DB logos on chests and

backs show the assurance from TVNZ to be worthless.

TVNZ's Response to GOAL's Further Comment

In a reply dated 4 March 1994, TVNZ expressed the opinion that GOAL was being "very

misleading".

The upheld complaint about the football players, TVNZ wrote, involved a situation where

TVNZ had control and had "allowed two players to gambol before the camera in jerseys

bearing large Speights logos". In that situation the incidental promotion of liquor had not

been minimised.

The current complaint involved filming a practice session - a legitimate news story - where

the players' jerseys happened to carry liquor company logos and every effort had been

made to minimise their exposure.

The Sports Department instruction, TVNZ added, was being followed conscientiously.

GOAL's Final Comment to the Authority

In a letter dated 6 March 1994, on GOAL's behalf Mr Turner replied to TVNZ's letter of 24

February to the Authority.

Accepting that there were no explicit rules about the size of liquor company logos on

practice apparel, Mr Turner argued that it was both sensible and in the spirit of the Code

to apply the provisions which applied to competition and casual wear. Referring to the

rugby players' jerseys when TVNZ acknowledged that it had had control of the situation,

Mr Turner maintained that this control presumably meant the ability to broadcast or not

which he believed applied to the current situation as well.

As the final point, he referred to the prohibition on the impression of saturation in

standard 1.3.2(c) of the Voluntary Code which, he maintained, was breached by the item

complained about. He also acknowledged that he had not raised this standard in his initial

complaint but argued that the reference to standard A3.d was sufficient in that it obliged

broadcasters to comply with section 1 of the Voluntary Code - not just to the provisions

that section which he had specifically nominated.