Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Breakfast – presenter held a highlighter to his nose and sniffed it – commented that highlighters are not as good as permanent markers for sniffing – allegedly in breach of law and order and children’s interests standards
Standard 2 (law and order) – sniffing permanent markers is not illegal – comments intended to be humorous – not upheld
Standard 9 (children’s interests) – children unlikely to be watching Breakfast and not likely to be disturbed or alarmed – not upheld
This headnote does not form part of the decision.
 During an episode of Breakfast, broadcast on TV One on Thursday 10 April 2008, the following discussion took place between the programme’s presenters Paul Henry and Pippa Wetzell at approximately 8.05am:
Paul: What did we do before highlighters? They are so cool...
Paul: The downside of the highlighter is [waves a highlighter under his nose and sniffs it]
they’re no good as permanent markers...I suppose you shouldn’t really do that
Pippa: No. You shouldn’t be sniffing that on camera at all.
Paul: But there’s no point sniffing a highlighter. And you can tell because sometimes
people have highlighter under their nose where they’ve tried but it’s no good.
Your permanent markers – now they are worth sniffing.
 Michael Preece made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme breached standards of law and order and children’s interests.
 The complainant argued that Paul Henry’s act of holding the highlighter up to his nose and saying highlighters were not as good for sniffing as permanent markers “glamorises drug related crime and incites imitation”, and was therefore in breach of Standard 2 (law and order).
 With regard to Standard 9 (children’s interests), Mr Preece contended that the broadcast of Paul’s comments was irresponsible “at any time of day... but at 8.00 when children (including mine) are watching it is in my opinion criminal”.
 TVNZ assessed Mr Preece’s complaint under Standards 2 and 9 of the Free-to-Air Television Code of Broadcasting Practice. Mr Preece also nominated guidelines 2a, 2b, 2c, 2d, 2e and 9a. These provide:
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.
2a Broadcasters must respect the principles of law which sustain our society.
2b Factual programmes should not glamorise criminal activity or condone the actions of criminals.
2c Programmes should not depict or describe techniques of crime in a manner which invites imitation.
2d Ingenious devices for, and unfamiliar methods of, inflicting pain, injury or death, particularly if readily capable of easy imitation, should not be shown, except in exceptional circumstances which are in the public interest.
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 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.
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.
 With regard to Standard 2, TVNZ noted that the exchange between the presenters was less than a minute in duration and was “a classic example of the kind of gag [Paul Henry] is well-known for on Breakfast”.
 The broadcaster disagreed with the complainant that by holding the highlighter to his nose and sniffing Paul Henry was glamorising or condoning criminal activity. TVNZ maintained that “sniffing of permanent markers does not constitute criminal activity”, and that Paul Henry was “chastised by his co-host” Pippa Wetzell who had told him he should not be sniffing the highlighter on television.
 TVNZ contended that the tone of the exchange between the presenters was light-hearted and “obviously intended to be seen as humorous”. It said that Paul Henry was not seriously suggesting that people should sniff permanent markers, but rather was comparing them to non-scented highlighters.
 The broadcaster noted that the Breakfast audience has considerable expectations that Paul Henry will engage in this type of humour because he is well-known for it. It said that he “will often seize upon off beat ‘happenings’ or uncomfortable situations and turn them into gags in the programme”. Accordingly, TVNZ declined to uphold the complaint that the programme breached Standard 2.
 Looking at Standard 9 (children’s interests), TVNZ maintained that the exchange between the presenters was part of a current affairs programme with an adult target audience. It argued that it was unlikely that a child would be watching Breakfast without adult supervision, and that because the segment was intended to be humorous it considered it unlikely that it would have alarmed or disturbed child viewers. TVNZ declined to uphold the complaint that Standard 9 was breached.
 Dissatisfied with TVNZ’s response, Mr Preece referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 The complainant said he “absolutely refutes” TVNZ’s argument that Paul Henry’s act of sniffing a pen did not glamorise drug use and would not incite children to copy his act. He said that this was particularly so when Paul Henry, who was a “key personality”, was seen on television in the morning “chatting about the benefits of smelling such an item”. Mr Preece argued that guideline 2d clearly applied to this broadcast, because it showed an unfamiliar device for causing injury that was readily capable of easy imitation.
 In order to demonstrate to TVNZ that the abuse of solvents by children is a serious issue, Mr Preece attached a transcript of a speech delivered in the House of Lords regarding a bill proposing the introduction of drug education for children in the UK, and references to the website of a global charity which deals with solvent abuse.
 The complainant took issue with TVNZ’s analysis of “the addictive use of sniffing items such as marker pens... as amusing or a ‘gag’”.
 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.
 The Authority has stated on previous occasions (e.g. Decision No. 2005-133) 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. The Authority notes that while sniffing markers is a form of solvent abuse and is a serious issue, it is not actually illegal in New Zealand. However, it could fall under 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.
 In the Authority’s view, Paul Henry’s comments and action of sniffing a highlighter did not amount to a “realistic portrayal” of solvent abuse. It agrees with TVNZ that it was intended to be a “gag” and that Paul Henry is known to be inclined towards that type of humour. The Authority does not consider that his brief and light-hearted comments constituted the sort of programme content that Standard 2 was designed to prevent.
 Accordingly, the Authority declines to uphold the Standard 2 complaint.
 Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times. While the Breakfast segment was broadcast at around 8am when children could have been watching, the Authority considers that the programme was aimed at adults rather than children, and was not the sort of programme that children would typically be interested in. Further, children who were watching were not likely to be doing so unsupervised. The segment was brief, light-hearted, and it was unlikely to “disturb or alarm” child viewers. For these reasons, the Authority declines to uphold the complaint that Breakfast breached Standard 9.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
13 August 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Michael Preece’s formal complaint to TVNZ – 9 April 2008
2. TVNZ’s response to the complaint – 7 May 2008
3. Mr Preece’s referral to the Authority – 15 May 2008
4. TVNZ’s response to the Authority – 23 May 2008