Complaint under section 8(1)(a) of the Broadcasting Act 1989
TV2 promo – on screen graphics for TV2 promo included a hazy substance wafting up the screen – allegedly represented smoke and thus breached the Smoke Free Environment Act prohibition on promoting smoking behaviour
Standard 2 (law and order) – promo did not promote disrespect for the law – not upheld
This headnote does not form part of the decision.
 The imagery used in on-screen graphics to identify a television channel as TV2 included a hazy substance wafting up the screen. It was broadcast frequently at various times.
 Brandon Orlandini complained to Television New Zealand Ltd, the broadcaster, that the haze shown in the TV2 promo represented smoke. That view, he said, was shared by others and many, like him, felt a "strong urge to smoke" on seeing the promo.
 Mr Orlandini pointed out that the Smoke Free Environment Act 1990 (s.22) prohibited promoting smoking behaviour and he contended that the broadcast of the promo breached that Act. Consequently, he argued that the broadcast of the promo breached the broadcasting standard relating to the observance of good taste and decency.
 As the complaint alleged that the broadcast of the promo breached a specific Act, TVNZ assessed the complaint under Standard 2 of the Free-to-Air Television Code of Broadcasting Practice. It reads:
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 2a Broadcasters must respect the principles of law which sustain our society.
 TVNZ argued that it took "some stretch of the imagination" to link the imagery exclusively with smoke, "let alone tobacco smoke". It was, it wrote, "simply a graphic device", which could represent among many other matters, a table lamp, an underwater volcano, or a plant.
 Declining to uphold the complaint, TVNZ said it could not understand how the image which was "clearly designed" to promote TV2, could be regarded as being designed to promote smoking.
 Dissatisfied with TVNZ's response, Mr Orlandini referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
 Describing TVNZ's response as "disingenuous", Mr Orlandini maintained that it took "some stretch of the imagination" to link the imagery with the "fanciful evocations" suggested by TVNZ. He wrote:
To me and to many others I have spoken to, the most obvious evocation is of smoke.
 Mr Orlandini also argued that, under the legislation, the broadcaster's intention in making the promo was irrelevant. If the promo could encourage smoking, he contended, it contravened the Act.
 TVNZ reiterated its argument that the imagery used was not a link exclusively to cigarette smoke. On the basis that Mr Orlandini was complaining about the version of the promo in which the colour green was dominant, TVNZ maintained that the colour alone suggested a substance other than cigarette smoke. Further, given the amount of wafting material, it would require a person to smoke ten cigarettes at the same time to suggest that it was cigarette smoke. It argued:
This material does not promote the use of tobacco. It promotes TV2.
 Mr Orlandini maintained that the effect of the promo was to promote smoking behaviour. Expressing the opinion that it was a "constant struggle" for many former smokers not to start smoking again, he repeated the arguments he had previously advanced and requested the Authority to order TVNZ not to broadcast the promo again.
 The members of the Authority have viewed a recording of the TV2 promo complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The Authority's approach to Standard 2, as explained in its practice note, is that a breach occurs only when a broadcast actively promotes disrespect for the law. In the present case, irrespective of whether the promo might be perceived as cigarette smoke by some viewers, the Authority is of the view that the complainant has provided no information upon which it could conclude that the promo actively promoted disrespect for the Smoke Free Environment Act 1990.
For the above reasons, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
3 May 2007
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Brandon Orlandini's formal complaint – 4 December 2006
2 TVNZ's response to the complainant – 7 February 2007
3 Mr Orlandini's referral to the Authority – 8 March 2007
4 TVNZ's response to the Authority – 12 March 2007
5 Mr Orlandini's final comment – 29 March 2007