BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) and 8(1C) of the Broadcasting Act 1989
Close Up – item on group of duck hunters – hunters shown drinking alcohol and using firearms – brands of alcohol visible – man shown taking his pants off and diving onto a blow-up doll – allegedly in breach of good taste and decency, law and order, balance, accuracy, fairness, children’s interests and liquor promotion standards

Findings
Standard 11 (liquor) – item contained liquor promotion that was not socially responsible – upheld

Standard 1 (good taste and decency) – footage of man with blow-up doll and mixing of firearms and alcohol strayed beyond the bounds of good taste and decency – upheld

Standard 9 (children’s interests) – broadcaster did not adequately consider the interests of child viewers – upheld

Standard 2 (law and order) – item did not encourage viewers to break the law or otherwise promote, condone or glamorise criminal activity – not upheld

Standard 4 (balance) – item did not discuss a controversial issue of public importance – not upheld

Standard 5 (accuracy) – presenter’s statement speculative and unquantifiable – not a statement of fact – not upheld

Standard 6 (fairness) – hunters taking part and referred to in the item treated fairly – viewers would have realised that most hunters act responsibly and do not mix firearms and alcohol – not upheld

Orders
Section 13(1)(a) – broadcast of a statement

Section 16(1) – costs to Lion Nathan Ltd $1,500

Section 16(4) – costs to the Crown $3,500

This headnote does not form part of the decision.

Broadcast

[1]   An item on Close Up called “Volley or Folly”, broadcast on TV One at 7pm on 4 May 2009, followed a group of duck hunters for a day on a farm in the Wairarapa. The item began with the presenter saying:

Well they call it a sport, duck shooting, and as one wit put it, it would be if only the ducks were armed.

For many, though, it’s more of a social occasion and for one group you’re about to meet, the social event of the year. They come from all over the country to shoot, drink, party, and bond with mates.

Now we all know that drinking and guns don’t go together, but we also know it’s pretty common when it comes to duck shooting. This weekend, [our reporter] went to the Wairarapa for a rare insight into what is the country boys’ big day out.

[2]   The report began with footage of a group of hunters waking up in the early morning at the farmhouse and getting ready to go hunting. The hunters were shown packing a large chilly-bin full of beer, bottles of sparkling wine and other beverages. There was another shot of a hunter holding two boxes of beer that were taken with them to their hunting location.

[3]   Footage was then shown of the hunters putting their gear and the chilly-bin onto the back of a utility vehicle and heading off to the duck hunting maimai located on the edge of a dam. One hunter was shown putting a large Tui beer poster in the back of the vehicle as they prepared to leave.

[4]   When they arrived at the maimai they used a duck caller and began shooting. After footage of the hunters’ shooting was shown, one of the hunters opened a bottle of sparkling wine and sprayed it over several of his companions. As he did this the reporter stated, “It’s a champagne breakfast at quarter to seven”.

[5]   The hunters were then shown shooting birds and using bird callers to lure the ducks. One of the hunters told the reporter, “In the first three hours it’s all about the shooting and then it’s just about having a good day, getting on the booze, having fun, it’s a party”. A hunter was shown putting more beer into the chilly-bin which contained sparkling wine, milk, soft drink, a bottle of vodka and some cans of energy drink.

[6]   A voiceover from the reporter said, “When the ducks stop flying these blokes make their own fun...”. A hunter was shown holding a bottle of Tui beer and after saying, “I tell you what, when I’m duck shooting I love to drink refreshing Tui beer”, the hunter began gulping back his beer.

[7]   The hunters were shown drinking, laughing and shooting, with one of the hunters saying, “A few guys get a bit carried away, maybe a few lagers. Probably the shooting goes downhill. And a few high jinks, definitely a few high jinks on the dam”.

[8]   At one point, footage was shown of a hunter standing between two other hunters and throwing an object directly upwards into the air. As he did this, the two hunters standing either side of him, with guns raised, fired their rifles at the object.

[9]   One of the hunters ran down a hill towards the dam, pulled his pants down to reveal his bare buttocks and jumped into the water onto a blow-up doll. The hunter then grabbed the blow-up doll, pulled himself to the edge of the dam and climbed on top of the doll. The same hunter was also shown naked from the waist-down, with his genital area blurred, trying to wakeboard on the dam.

[10]   One of the hunters said, “And that’s what it’s all about, not just the shooting, but about having a hell of a lot of fun out there being Kiwis and enjoying what we have in this little country of ours”.

[11]   A voiceover from the reporter stated, “After 12 hours on the pond it was time to pull the pin on the shooting, but not the entertainment”. The hunters were shown partying and drinking in a large marquee with a DJ playing music and a barbeque going outside. Some of the hunters were wearing Tui beer hats and at one stage a hunter was shown with a Tui plastic bag over his head and face with another hunter pretending to suffocate him.

[12]   Footage was then shown of the next morning that included a hunter laying out all the ducks they had shot. The reporter said, “A new day, some still charging from the last one”. One of the hunters told the reporter, “Quite a few of the guys have, ah, pretty sore heads and things”.

[13]   The reporter then asked one of the hunters, “A question I’ve got to ask, some people would say that alcohol and guns don’t mix. What would you say to those people?” The hunter responded, “Ah, well, everything in moderation really. I would, look, I know the guys that we shoot with, we know each other well, we do trust each other and nobody’s going to be acting the goat”. The item ended with the hunter saying that he could not wait for next year.

[14]   The following night, Close Up broadcast viewers’ responses to the 4 May item. The presenter said:

Now we’ve had a huge response to last night’s story on duck shooting and the group we watched party their way through the opening season.

“Shocked”, “disgusted”, “appalled” were just some of your descriptions of the behaviour we showed you, everyone condemning the combination of alcohol and firearms.

One of the emails is from Inspector Joe Green, manager of the Police Firearms Licensing and Vetting Service. He tells us police will be inquiring further into what he witnessed last night – behaviours which he says weren’t the norm.

Complaints

[15]   Lion Nathan Ltd, Fish and Game New Zealand (FGNZ), Strato Cotsilinis, Sarah O’Neil and Elaine Hadfield made formal complaints to Television New Zealand Ltd, the broadcaster, alleging that the item had breached broadcasting standards.

Lion Nathan Ltd’s complaint

[16]   Lion Nathan argued that the item had breached the law and order standard because it had provided a “realistic portrayal of anti-social behaviour, including the abuse of alcohol” in a way that glamorised the activity. It noted that the event shown was described in part as “just about having a good day, getting on the booze”.

[17]   The complainant argued that the item had suggestively shown “simultaneous consumption of alcohol and firearms use” and had glorified socially unacceptable behaviour. It noted that the item had included a “presumably intoxicated” man trying to wakeboard and that a partially naked man had “molested a plastic blow-up doll”.

[18]   Lion Nathan argued that the item had promoted the consumption of liquor in a manner that was not socially responsible in breach of Standard 11. It considered that the item had associated alcohol with having a good time, that it had been implied that drinking was the underlying reason for the event and that the consumption of liquor had dominated the item.

[19]   The complainant noted that “liquor brand packaging, logos and collectables were evident and identifiable throughout the segment”. It also noted that the Authority had previously upheld a complaint “showing this sort of behaviour” in Decision No. 2007-063.

Fish and Game New Zealand’s complaint

[20]   FGNZ argued that the item had breached broadcasting standards relating to good taste and decency, law and order, accuracy, children’s interests and liquor promotion.

[21]   With respect to Standard 1, FGNZ stated that, “The content, presentation, style, and tone of the item was offensive to a large number of hunters, firearms owners and members of the general public”. It argued that, “The implicit endorsement of the depicted behaviours, the enthusiasm with which the reporter engaged with the subjects’ antics, and the item’s contents itself are all contrary to accepted norms of behaviour”.

[22]   The complainant contended that the item had breached Standard 2 (law and order) because “using alcohol (or drugs) while handling a firearm is a criminal offence and in contravention of the Arms Code”.

[23]   In terms of accuracy, FGNZ argued that the item gave the inaccurate impression that drinking alcohol while duck shooting was common, noting that the presenter had stated that it was “pretty common”. It contended that “basic journalistic research would have identified the reality” that this practice was in fact “rare”.

[24]   FGNZ argued that the item’s implied endorsement of significant alcohol consumption and alcohol consumption while using firearms was “hardly a message in our children’s interests”. It argued that the item “portrayed manic pleasure at the shooting of game birds” in a “larrikin-type environment”. FGNZ considered the item’s content was “grossly inappropriate for young viewers”.

[25]   With respect to Standard 11 (liquor promotion), the complainant argued that the item had promoted liquor in a way that was not socially responsible.

Strato Cotsilinis’s complaint

[26]   Mr Cotsilinis argued that the item had breached balance, accuracy and fairness standards. He stated that, “The boorish behaviour shown in the programme has long been outlawed by the duck shooting fraternity and is in no way acceptable to the vast majority of licence holders and firearm holders”.

[27]   The complainant went on to say that, “Any fundamental research into the topic by TVNZ staff would have revealed that the behaviour and attitudes of those shown in the programme are not representative of the large number of shooters who take their responsibility in respect of firearms very seriously”. He argued that the item’s portrayal of the duck shooters was “totally irresponsible”.

Sarah O’Neil’s complaint

[28]   Sarah O’Neil stated that the item glorified the combination of drinking and duck shooting. She noted that the “Arms Code” stated that people should avoid alcohol or drugs when handling firearms.

[29]   The complainant found it “morally reprehensible to show a naked man attempting to have intercourse with a blow-up doll”, and that the footage was offensive and degrading to women. She also noted that the item was broadcast during children’s normally accepted viewing times and argued that the item’s content was inappropriate for child viewers.

[30]   Ms O’Neil considered that the footage of a hunter with a plastic bag on his head while his friend pretended to suffocate him was “ridiculous” and not newsworthy. She argued the item was unbalanced, because duck shooting was a national activity enjoyed safely by many and should have shown how the majority of responsible duck hunters act.

Elaine Hadfield’s complaint

[31]   Elaine Hadfield argued that the item had breached standards of good taste and decency, children’s interests and liquor promotion. She stated that the item’s inclusion of guns and alcohol was “not a good mix” and that the hunters “appeared drunk”.

[32]   The complainant contended that Close Up was broadcast during “family viewing time” and that the item contained “disgusting” behaviour, such as a hunter diving on a blow-up doll and showing his naked buttocks, which set a bad example for children.

Standards

[33]   The complainants nominated Standards 1, 2, 4, 5, 6, 9 and 11 and guidelines 2e, 4a, 5b, 9a and 11b of the Free-to-Air Television Code of Broadcasting Practice in their complaints. These provide:

Standard 1 Good Taste and Decency

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

Guideline 2e

The realistic portrayal of anti-social behaviour, including violent and serious crime and the abuse of liquor and drugs, should not be shown in a way that glamorises these activities.

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining 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.

Guideline 4a

Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guideline 5b

Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

Guideline 9a

Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material which would disturb or alarm them.

Standard 11 Liquor

In the preparation and presentation of programmes, broadcasters must observe restrictions on the promotion of liquor appropriate to the programme genre being broadcast. Liquor Promotion should be socially responsible and must not encourage consumption by people who are under the legal age to purchase liquor.

Definition

Liquor Promotion comprises:

• promotion of a liquor product, brand or outlet (‘promotion’)
  
  
• liquor sponsorship of a programme (‘sponsorship’)
  
  
• advocacy of liquor consumption (‘advocacy’)

Guideline 11b

Broadcasters must ensure that liquor promotion does not dominate programmes.

Broadcaster's Response to the Complainants

Lion Nathan Ltd’s complaint

[34]   With respect to Standard 2 (law and order), TVNZ pointed out that the Authority’s practice note to the law and order standard stated that to find a breach, a broadcast would have to implicitly condemn a law and actively promote disrespect for it.

[35]   The broadcaster argued that the item had not glamorised crime or condoned the actions of the duck hunters in the ways alleged by the complainant. It said that the behaviour shown in the item was “portrayed for what it was, revealing the existence of a problem”. Further, it contended that “there was no element of promotion or encouragement of the activities”.

[36]   TVNZ noted that the presenter introduced the item by saying, “Now we all know that drinking and guns don’t go together, but we know it’s pretty common when it comes to duck shooting”, and that the item was framed with the title “Volley or Folly”. It stated that the programme’s message was that the type of behaviour shown was a concern.

[37]   The broadcaster said that Close Up was targeted at an adult audience, was broadcast at 7pm and had been broadcast during the PGR time-band. It maintained that the item “was about the duck shooting culture of some groups and the silly behaviour of the men when they had been drinking illustrated what was happening on these duck shooting excursions”. TVNZ considered that the footage of the hunters was consistent with the content of other Close Up items and would not have been unexpected to viewers. It also noted that, as a result of the broadcast, the police had spoken with the men involved.

[38]   With respect to the allegation that the item was a realistic portrayal of anti-social behaviour, TVNZ argued that the item’s focus was on the behaviour of the hunters involved and that the comments likening the event to Christmas and that it was about “getting on the booze” provided an indication of their attitude. Similarly, the broadcaster considered that the footage of the man taking his pants off and diving on the blow-up doll and then trying to wakeboard was shown as an example of the hunters’ behaviour and the types of things they got up to.

[39]   The broadcaster declined to uphold the complaint that the item breached Standard 2 (law and order).

[40]   Turning to consider liquor promotion, TVNZ reiterated that Close Up was aimed at an adult audience and argued that “any vision of liquor labels and signage was fleeting and did not dominate the item”. It argued that none of the footage in which liquor labels were visible was dwelt on in any detail and that the labels “were not posed for the camera so that brands were obvious”.

[41]   The broadcaster also pointed out that the majority of the item did not show the hunters consuming alcohol and that the footage where the brands were clearly visible was minimal. It noted that the item was 5.12 minutes long and that the footage where alcohol labels were clearly visible was less than a minute. TVNZ argued that it was unavoidable that liquor labelling would be seen given the nature of the item.

[42]   The broadcaster contended that the item had not endorsed alcohol use or advocated excessive alcohol consumption. It reiterated that the point of the item was to show what was happening in some duck hunting groups and the potential danger of their behaviour.

[43]   TVNZ argued that the item had not implied drinking was the underlying reason for the event, noting the hunter’s comment, “In the first three or four hours it’s all about the shooting and then it’s just about having a good day, getting on the booze, having fun. It’s a party”.

[44]   The broadcaster argued that the previous decision of the Authority raised by the complainant was very different to “Volley or Folly”, because the broadcast in that decision involved students drinking excessive amounts of alcohol to get drunk.

[45]   TVNZ declined to uphold the complaint that the item breached Standard 11 (liquor promotion).

Fish and Game New Zealand’s complaint

[46]   TVNZ stated that the good taste and decency standard was designed to protect against broadcasts that contained nudity, coarse language, sexual material and violence. It noted that Close Up was targeted at an adult audience and was broadcast during a PGR timeslot.

[47]   The broadcaster stated that the item was about the duck shooting culture of some groups and that the silly behaviour of the men when they had been drinking illustrated what was happening on their duck hunting excursions. It considered that the content of the item was consistent with other Close Up items and that the language it contained was appropriate for the PGR time-band.

[48]   TVNZ argued that the footage had not glamorised the men’s behaviour and that the story was legitimate, as it exposed how some duck hunters behave. It declined to uphold the Standard 1 complaint.

[49]   For the same reasons outlined in TVNZ’s decision on Lion Nathan Ltd’s complaint (see paragraphs [34]-[39]), the broadcaster declined to uphold the complaint that the item breached Standard 2 (law and order).

[50]   With respect to accuracy, the broadcaster argued that, “A quick survey of the web finds that alcohol is still considered to be part of the duck shooting experience by some people”. It contended that the presenter’s comment that the combination of drinking and guns was “pretty common” when it came to duck shooting was accurate. It declined to uphold FGNZ’s accuracy complaint.

[51]   With respect to Standard 9 (children’s interests), TVNZ noted that Close Up was rated PGR and had an adult target audience. It reiterated its argument that the programme was well-known for “playing hard hitting news stories” and that the duck shooting item was not out of place in the context of other stories it had covered such as “drugs and gangs in prison” and the use of “sow crates” on pig farms.

[52]   The broadcaster considered that the duck shooting item covered a legitimate story, which it said had “stirred up public sentiment and comment”. It argued that there was “considerable expectation” that if children were watching they would be doing so in the company of their parents.

[53]   TVNZ argued that the item did not contain material inappropriate for the PGR time zone and that the footage was acceptable in the context of Close Up. It declined to uphold the complaint that the item breached Standard 9.

[54]   For the same reasons outlined in TVNZ’s decision on Lion Nathan Ltd’s complaint (see paragraphs [40]-[44]), the broadcaster declined to uphold the complaint that the item breached Standard 11 (liquor).

Mr Cotsilinis’s complaint

[55]   With respect to Standard 4 (balance), TVNZ noted that the standard only applied to items which discussed controversial issues of public importance.

[56]   The broadcaster did not consider that the issue of duck shooters drinking and partying was a controversial issue of public importance in New Zealand. It argued that, while the issue was a “matter of interest to members of the New Zealand public”, it had no “significant impact on the New Zealand public”.

[57]   TVNZ contended that the complaint related to the interviews and filming of some of the people who appeared in the programme and who spoke about their experiences. It considered that the people shown in the item were “simply people telling their stories and behaving as they chose in front of the camera”. It argued that their experiences were not controversial issues of public importance.

[58]   The broadcaster contended that the item did not “claim or infer that this was the only way that duck hunters behaved”. It declined to uphold the complaint that the item breached Standard 4.

[59]   Turning to Standard 5 (accuracy), TVNZ reiterated that the item did not claim that all duck hunters acted in the manner shown in the programme. It argued that the item gave an accurate picture of how a particular group of duck hunters behaved when they went shooting. The broadcaster declined to uphold the accuracy complaint.

[60]   Dealing with Standard 6 (fairness), TVNZ considered that the duck shooters shown in the item were treated fairly and that it did not imply all duck hunters acted like the group of men in the item. It declined to uphold the fairness complaint.

Ms Hadfield’s complaint

[61]   For the same reasons outlined in TVNZ’s decision on FGNZ’s complaint (see paragraphs [46]-[48]), TVNZ declined to uphold Ms Hadfield’s complaint that the item breached Standard 1 (good taste and decency).

[62]   For the same reasons outlined in TVNZ’s decision on FGNZ’s complaint (see paragraphs [51]-[53]), TVNZ declined to uphold Ms Hadfield’s complaint that the item breached Standard 9 (children’s interests).

[63]   For the same reasons outlined in TVNZ’s decision on Lion Nathan Ltd’s complaint (see paragraphs [40]-[44]), the broadcaster declined to uphold the complaint that the item breached Standard 11 (liquor promotion).

Referral to the Authority

Ms O’Neil’s referral

[64]   Having not received a response from TVNZ within the statutory timeframe, Ms O’Neil referred her complaint to the Authority under section 8(1C) of the Broadcasting Act 1989.

Lion Nathan Ltd’s referral

[65]   Dissatisfied with TVNZ’s response, Lion Nathan Ltd referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. It maintained that the item had breached Standard 2 (law and order), noting that the police had spoken with the men involved.

[66]   With respect to Standard 11, the complainant maintained that the item had promoted liquor consumption in a way that was not socially responsible. It reiterated its argument that liquor consumption was presented as an integral part of the duck shooting event and that identifiable liquor brands were shown.

[67]   Lion Nathan argued that the participants were “obviously drinking to excess”, that liquor was associated with having a good time and that the negative effects of such liquor consumption were not shown.

Fish and Game New Zealand’s referral

[68]   Dissatisfied with TVNZ’s response, FGNZ referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Mr Cotsilinis’s referral

[69]   Dissatisfied with TVNZ’s response, Mr Cotsilinis referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He argued that the balance standard did apply, stating, “For the broadcaster to suggest that people acting irresponsibly with firearms is not a controversial issue of public importance, given the significant increase in gun-related incidents in New Zealand, was quite astounding”.

[70]   Noting the presenter’s introduction, the complainant maintained that the item had implied that drinking while duck shooting was “pretty common” and that Close Up had failed to show balance and impartiality when depicting duck shooters in accordance with guideline 4a.

[71]   Mr Cotsilinis also considered that the item had breached guideline 5b, because it would have unnecessarily alarmed viewers by suggesting that duck shooters acted in the manner shown in the programme.

Ms Hadfield’s referral

[72]   Dissatisfied with TVNZ’s response, Ms Hadfield referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. She reiterated her argument that the “exposure of buttocks and the use of an inflatable adult female doll” were offensive and that the item had breached Standard 11.

Broadcaster’s Response to the Authority

Ms O’Neil’s complaint

[73]   For the same reasons outlined in TVNZ’s decision on FGNZ’s complaint (see paragraphs [46]-[48]), TVNZ declined to uphold Ms O’Neil’s complaint that the item breached Standard 1 (good taste and decency).

[74]   For the same reasons outlined in TVNZ’s decision on FGNZ’s complaint (see paragraphs [51]-[53]), TVNZ declined to uphold Ms O’Neil’s complaint that the item breached Standard 9 (children’s interests).

[75]   For the same reasons outlined in TVNZ’s decision on Lion Nathan Ltd’s complaint (see paragraphs [40]-[44]), the broadcaster declined to uphold Ms O’Neil’s complaint that the item breached Standard 11 (liquor promotion).

Mr Cotsilinis’s complaint

[76]   The broadcaster provided the Authority with some extracts from three New Zealand-based websites that showed “alcohol is still considered to be part of the duck shooting experience by some people in New Zealand”.

[77]   TVNZ made no further comments on the complaints by FGNZ, Lion Nathan and Ms Hadfield.

Authority's Determination

[78]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 11 (liquor)

[79]   There is a two-stage test involved in determining whether there has been a breach of Standard 11 (liquor). The Authority must first decide whether the broadcast constituted "liquor promotion" and, if so, it must then consider whether that liquor promotion was socially responsible.

[80]   Standard 11 defines "liquor promotion" as:

• promotion of a liquor product, brand or outlet

• liquor sponsorship of a programme

• advocacy of liquor consumption.

[81]   The Authority notes that the item included footage of the hunters drinking alcohol and that liquor bottles were visible during several parts of the report. In addition, the Tui beer brand was clearly shown on a number of occasions including beer bottle labelling and on promotional merchandise such as Tui hats and a poster. Further, the hunters made comments such as “...it’s just about having a good day, getting on the booze...” and “A few guys get a bit carried away, maybe a few lagers”. In these circumstances, the Authority finds that the Close Up item promoted beer and the Tui brand, and advocated liquor consumption. Therefore, it concludes that the broadcast contained liquor promotion.

[82]   The Authority must next determine whether this liquor promotion was socially responsible. In the Authority’s view, the item was as much about drinking as it was about hunting. It agrees with Lion Nathan that the consumption of liquor dominated the item and that alcohol consumption was shown to be an integral part of the event reported on.

[83]   The Authority notes that one hunter said, “In the first three hours it’s all about the shooting and then it’s just about having a good day, getting on the booze...” and that another hunter acknowledged, “A few guys get a bit carried away, maybe a few lagers. Probably the shooting goes downhill.” It considers that it would have been obvious to viewers that the men were consuming alcohol while using firearms.

[84]   While the item was called “Volley or Folly”, the Authority considers that there was no real criticism of the mixing of guns and liquor in the item. In the Authority’s view, an item which was attempting to analyse “Volley or Folly” would have presented comment from other people or organisations, such as responsible hunters or the police, who condemned the men’s behaviour. Instead, the reporter appeared to be enjoying the men’s antics, adding to the impression that their behaviour was acceptable and even fun.

[85]   For these reasons, the Authority is of the view that the liquor promotion contained in the item was not socially responsible.

[86]   Having reached this conclusion, the Authority must consider whether to uphold this complaint as a breach of Standard 11.

[87]   The Authority acknowledges that upholding the Standard 11 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. It acknowledges the importance of section 14 and the values underlying the right to freedom of expression.¹ However, “the right of freedom of expression is not an unlimited and unqualified right”.² The Authority must ensure that, if it is considering upholding this part of the complaints, the restriction on the broadcaster’s right to freedom of expression would be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[88]   First, the Authority must assess whether, by upholding this complaint, the limit placed on the broadcaster’s section 14 right would be “prescribed by law”. Parliament has recognised the importance of maintaining restrictions on the promotion of liquor in section 21(1)(e)(v) of the Broadcasting Act 1989, which states:

(1) The functions of the Authority shall be –

(e) To encourage the development and observance by broadcasters of codes of broadcasting practice appropriate to the type of broadcasting undertaken by such broadcasters, in relation to –

(v) Restrictions on the promotion of liquor

[89]   Further, the Codes of Broadcasting Practice have been developed in conjunction with broadcasters and approved by the Authority. The requirement in Standard 11 that liquor promotion must be socially responsible is drafted in accordance with Parliament’s intention. For these reasons, the Authority considers that upholding a complaint under Standard 11 (liquor) would be prescribed by law.

[90]   Second, the Authority must consider whether upholding the complaint would be a justified limitation on the broadcaster’s right to freedom of expression. In the Authority’s view, Standard 11 exists to ensure that when a broadcast contains liquor promotion, the promotion is socially responsible. Liquor promotion in a broadcast must not, among other things, appear in programmes specifically directed at children, advocate excessive liquor consumption or dominate a programme. Accordingly, the Authority considers that upholding a complaint under Standard 11 would place a justified limitation on a broadcaster’s right to freedom of expression.

[91]   The Authority must now consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 11 on this occasion. In this case, the Authority has found that the broadcast contained liquor promotion that was not socially responsible, because liquor promotion dominated the item, the use of firearms and alcohol was mixed, and no real criticism of the men’s behaviour was included. In these circumstances, it considers upholding this complaint clearly promotes the objective of Standard 11 (as outlined in paragraph [90] above).

[92]   Accordingly, the Authority finds that upholding the complaints places a justified and reasonable limit on TVNZ’s freedom of expression. It therefore upholds the complaints from Lion Nathan Ltd, FGNZ and Ms Hadfield that the Close Up item breached Standard 11.

Standard 1 (good taste and decency)

[93]   When the Authority considers an alleged breach of Standard 1, it takes into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• Close Up was broadcast at 7pm

• the programme was broadcast in the PGR time-band

• the broadcast was not preceded by a warning

• Close Up was an unclassified news and current affairs programme aimed at an adult audience.

[94]   The Authority notes that there are a number of contextual factors which favour the broadcaster’s position, including the fact that the item was broadcast in the PGR time-band, formed part of an unclassified news and current affairs programme and had an adult target audience.

[95]   However, in the Authority’s view, the footage of the man taking his trousers off and jumping onto a blow-up doll, then dragging it to the side of the dam and lying on top of it, was crude, unnecessary and irrelevant in the context of an item which purported to examine a group of hunters going duck shooting. It considers that this footage, and the broadcaster’s failure to ensure that the liquor promotion in the item was socially responsible, strayed beyond the bounds of good taste and decency in a current affairs programme broadcast at 7pm.

[96]   Having reached this conclusion, the Authority must consider whether to uphold this complaint as a breach of Standard 1.

[97]   The Authority acknowledges that upholding the Standard 1 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Turner and TVNZ³, the Authority determined that upholding a complaint under Standard 1 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.

[98]   In the Authority’s view, the primary objective of Standard 1 is to protect against the broadcast of sexual content, violent material, and language that exceeds current norms of good taste and decency in the context in which it was shown.

[99]   With that in mind, the Authority must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 1 on this occasion. It finds that upholding a breach of the good taste and decency standard on this occasion would ensure that free-to-air television broadcasters do not screen programmes with content and themes that exceed current norms of acceptable behaviour, and provide warnings when content may disturb viewers. In this respect, upholding these complaints clearly promotes the objective of Standard 1, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression. The Authority upholds the complaints from Ms O’Neil, Ms Hadfield and FGNZ that the item breached Standard 1.

Standard 9 (children’s interests)

[100]   Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times. The Authority has found above that the footage of the man with the blow-up doll and the item’s mixing of firearm use and alcohol consumption strayed beyond the bounds of good taste and decency. Although Close Up is an unclassified programme, the Authority has acknowledged that children sometimes view such programmes in the company of their parents. This item was not preceded by a warning about the item’s content which would have enabled parents to decide whether or not they wanted their children to watch.

[101]   In these circumstances, the Authority finds that the broadcaster did not adequately consider the interests of child viewers in the broadcast of this item.

[102]   Having reached this conclusion, the Authority must consider whether to uphold the Standard 9 complaints.

[103]   The Authority acknowledges that upholding the children’s interests complaints would place a limit on the broadcaster’s right to freedom of expression. In Harrison and TVNZ⁴, the Authority determined that upholding a complaint under Standard 9 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 9 in the following terms:

In the Authority’s view, the purpose of the children’s interests standard is to protect children from broadcasts which might adversely affect them.

[104]   With that in mind, the Authority must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 9 on this occasion. It finds that upholding a breach of the children’s interests standard would ensure that broadcasters adequately consider the interests of child viewers when selecting content for programmes broadcast during their normally accepted viewing times. In this respect, upholding this part of the complaint clearly promotes the objective of Standard 9, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression. The Authority upholds the complaints by Ms O’Neil, Ms Hadfield and FGNZ that the programme breached Standard 9.

Standard 2 (law and order)

[105]   The Authority has previously stated that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity (see, for example, Gregory and TVNZ⁵).

[106]   Guideline 2e states:

The realistic portrayal of anti-social behaviour, including violent and serious crime and the abuse of liquor and drugs, should not be shown in a way that glamorises these activities

[107]   In the Authority’s view, although the item showed foolish and irresponsible behaviour involving the combination of firearms and alcohol, the item did not encourage viewers to adopt similar behaviour. In other words, nothing in the broadcast encouraged viewers to break the law or otherwise promoted, condoned or glamorised criminal activity.

[108]   Accordingly, it declines to uphold the complaints from Lion Nathan and FGNZ that the item breached Standard 2.

Standard 4 (balance)

[109]   Standard 4 requires broadcasters to provide balance when discussing controversial issues of public importance. In the Authority’s view, the item did not involve a discussion of a controversial issue of public importance. Rather it was a human interest piece that involved a reporter accompanying a particular group of duck hunters on private property for their annual shooting excursion.

[110]   Accordingly, the Authority finds that Standard 4 does not apply and it declines to uphold Mr Cotsilinis’s balance complaint.

Standard 5 (accuracy)

[111]   Standard 5 requires that news, current affairs and other factual programmes be truthful and accurate on points of fact, and impartial and objective at all times.

[112]   Guideline 5b states that broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

[113]   Mr Cotsilinis and FGNZ argued that the item provided viewers with an inaccurate portrayal of how the vast majority of responsible duck hunters behave, because the presenter stated that the mixing of guns and alcohol was “pretty common”.

[114]   In the Authority’s view, the presenter’s remark was a speculative statement and not a statement of fact that could be quantified or to which the accuracy standard applied. It agrees with TVNZ that the item did not claim that all duck hunters acted in the manner shown in the programme and that the broadcaster gave an accurate picture of how a particular group of duck hunters behaved when they went shooting.

[115]   Further, the Authority considers that the majority of viewers would have realised that the behaviour shown in the item related to a particular group of hunters and that it was not representative of the majority of responsible duck hunters.

[116]   Accordingly, it declines to uphold the complaints by Mr Cotsilinis and FGNZ that the item breached Standard 5.

Standard 6 (fairness)

[117]   Standard 6 requires broadcasters to deal justly and fairly with any person taking part or referred to in a programme. The Authority notes that the item did not refer to the vast majority of responsible duck hunters or any duck hunting organisations, and therefore Standard 6 does not apply to those groups.

[118]   The Authority has been provided with no evidence to suggest that the hunters who participated in the item were treated unfairly by the broadcaster.

[119]   Accordingly, the Authority declines to uphold the complaint by Mr Cotsilinis that the item breached Standard 6.

For the above reasons the Authority upholds the complaints that the broadcast by Television New Zealand Ltd of an item on Close Up on 4 May 2009 breached Standards 1, 9 and 11 of the Free-to-Air Television Code of Broadcasting Practice.

Submissions on Orders

[120]   Having upheld aspects of four out of the five individual complaints, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from TVNZ and from those complainants who had aspects of their complaints upheld (Ms Hadfield, FGNZ, Lion Nathan Ltd and Ms O’Neil).

[121]   Lion Nathan Ltd submitted that TVNZ should be ordered to broadcast a comprehensive summary of the upheld aspects of the Authority’s decision during an episode of Close Up. It stated that the summary should be broadcast within one month of the date of the decision and screened immediately after the programme’s opening credits.

[122]   Lion Nathan also stated that it had incurred $5,356.75 in legal costs with respect to making the complaint. It submitted that these legal costs were reasonable and that it should be reimbursed for a sum greater than one-third of those costs.

[123]   FGNZ submitted that TVNZ should be ordered to broadcast a verbal and visual statement that included a comprehensive summary of the Authority’s decision and that this statement should be available on TV One’s website for at least one week. It also submitted that the statement should include an apology to game-bird hunters and an acknowledgment that:

• the presenter’s comment “...we also know that [drinking alcohol is] pretty common when it comes to duck shooting”, was not a statement of fact, but was purely speculative and did not claim most duck hunters acted in the manner shown

• there was no real criticism of the mixing of guns and alcohol in the item, and that the reporter’s actions in looking like he was having fun gave the impression the behaviour was acceptable when it was not

• a balanced item would have presented comment from responsible hunters

• the footage of the man with the doll was crude and unnecessary

• the broadcaster failed to act in a socially responsible manner with respect to alcohol promotion

• the footage contained in the item strayed beyond the bounds of good taste and decency

• the broadcaster did not adequately consider the interests of child viewers.

[124]   Ms O’Neil submitted that TVNZ should be ordered to broadcast a statement summarising the Authority’s decision, remove the item from its website and refrain from advertising for a duration acceptable to the Authority or be made to give its advertising revenue to a charity.

[125]   Ms Hadfield submitted that TVNZ should be ordered to broadcast a comprehensive summary of the Authority’s decision and pay costs to the Crown.

[126]   TVNZ noted that FGNZ made submissions relating to aspects of the complaints not upheld by the Authority, such as balance and accuracy. It contended that the Authority should not consider those parts of FGNZ’s submission.

[127]   TVNZ stated that the “line for appropriate content on Close Up” had now been drawn and that it had given written instructions about what constitutes a formal complaint to its news and current affairs team to prevent the situation that occurred with Ms O’Neil’s complaint.

[128]   TVNZ submitted that the decision would serve as a warning and penalty, and agreed that the broadcasting of a statement on Close Up was warranted in the circumstances. The broadcaster also stated that it would remove the material from its website when the Authority’s decision was released.

Authority’s Decision on Orders

[129]   The Authority agrees with the complainants’ submissions that it is appropriate to order TVNZ to broadcast a comprehensive summary of the Authority’s decision. It has ordered apologies only rarely and in exceptional circumstances, and it does not consider that an apology is warranted in this case. The Authority acknowledges that TVNZ will remove the item from its website once the decision is released.

[130]   With respect to the issue of the legal costs incurred by Lion Nathan Ltd, the Authority’s policy is that costs awards for complainants whose complaints have been upheld will usually be in the range of one-third of costs reasonably incurred. It considers that $4,500 is a reasonable sum for total legal costs incurred by the complainant, and one third of that amount is $1,500.

[131]   This amount may be adjusted upwards or downwards depending on the circumstances. Due to the relatively straightforward nature of this complaint, the Authority sees no reason to adjust this amount upwards, and therefore it orders TVNZ to pay Lion Nathan Ltd the sum of $1,500.

[132]   The Authority also finds that an order of costs to the Crown is warranted to mark the serious departure from broadcasting standards on this occasion. The Authority has found that the item breached standards relating to liquor promotion, good taste and decency and children’s interests. In these circumstances, it considers that the broadcaster should pay $3,500 costs to the Crown.

[133]   The Authority has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 in making the above orders. The Authority considers the orders it has made on this occasion are consistent with the New Zealand Bill of Rights Act's requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Orders

The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:

1. Pursuant to section 13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision

• be presented both verbally and visually on screen

• be broadcast during Close Up on a Monday at a time and on a date to be approved by the Authority

• contain a comprehensive summary of the upheld aspects of the Authority's decision.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to section 16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to Lion Nathan Ltd costs in the amount of $1,500 within one month of the date of this decision.

3. Pursuant to section 16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $3,500, within one month of the date of this decision.

The orders for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
20 October 2009

Appendix

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

Strato Cotsilinis

1.           Strato Cotsilinis’s formal complaint – 7 May 2009

2.          TVNZ’s response to the formal complaint – 8 June 2009

3.          Mr Cotsilinis’s referral to the Authority – 12 June 2009

4.          TVNZ’s response to the Authority – 29 June 2009

Lion Nathan Ltd

1.           Lion Nathan Ltd’s formal complaint – 11 May 2009

2.          TVNZ’s response to the formal complaint – 9 June 2009

3.          Lion Nathan’s referral to the Authority – 2 July 2009

4.          TVNZ’s response to the Authority – 29 July 2009

5.          Lion Nathan’s submissions on orders – 1 September 2009

6.          TVNZ’s submissions on orders – 18 September 2009

Sarah O’Neil

1.           Sarah O’Neil’s formal complaint – 5 May 2009

2.          Ms O’Neil’s referral to the Authority – 9 July 2009

3.          TVNZ’s response to the Authority – 29 July 2009

4.          Ms O’Neil’s submissions on orders – 24 August 2009

5.          TVNZ’s submissions on orders – 18 September 2009

Fish and Game New Zealand

1.           Fish and Game New Zealand’s formal complaint – 7 May 2009

2.          TVNZ’s response to the formal complaint – 10 June 2009

3.          FGNZ’s referral to the Authority – 8 July 2009

4.          TVNZ’s response to the Authority – 29 July 2009

5.          FGNZ’s submissions on orders – 31 August 2009

6.          TVNZ’s submissions on orders – 18 September 2009

Elaine Hadfield

1.           Elaine Hadfield’s formal complaint – 22 May 2009

2.          TVNZ’s response to the formal complaint – 19 June 2009

3.          Ms Hadfield’s referral to the Authority – 12 July 2009

4.          TVNZ’s response to the Authority – 29 July 2009

5.          Ms Hadfield’s submissions on orders – 27 August 2009

6.          TVNZ’s submissions on orders – 18 September 2009

¹See Decision No. 2008-040

²P v D and Independent News Auckland Ltd [2000] 2 NZLR 591, per Nicholson J

³Decision No. 2008-112

⁴Decision No. 2008-066

⁵Decision No. 2005-133