BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Authority accepts that it has jurisdiction over the promo for Campbell Live broadcast on Radio Live on Tuesday 6 July 2010

This headnote does not form part of the decision.

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INTERLOCUTORY DECISION

Background

[1]   A promo for the television current affairs programme Campbell Live was broadcast on Radio Live at 4.45pm on Tuesday 6 July 2010. The promo concerned an upcoming item on Campbell Live about the working conditions at an Auckland company called Paper Reclaim Ltd.

[2]   Paper Reclaim Ltd made a formal complaint to RadioWorks Ltd, the broadcaster responsible for Radio Live, asserting that the Campbell Live promo breached Standards 5 and 6 of the Radio Code of Broadcasting Practice.

[3]   RadioWorks responded that television promos which played on radio were “essentially advertisements and therefore not subject to the Broadcasting Act but fall to be considered by the [Advertising Standards Authority]”.

[4]   Paper Reclaim Ltd forwarded the jurisdictional matter to the Authority for consideration.

Relevant Sections of the Broadcasting Act 1989

[5]   Section 2 of the Broadcasting Act 1989 sets out the definition of an “advertising programme”. It states:

Advertising programme—

(a) means a programme or part of a programme that—

(i) is primarily intended to promote—

(A) the interest of any person; or

(B) any product or service for the commercial advantage of any person; and

(ii) is a programme or a part of a programme for which payment is made, whether in money or otherwise; and

(b) includes a credit in respect of a sponsorship or underwriting arrangement, being a credit that—

(i) is intended to promote any of the matters specified in paragraph (a)(i); and

(ii) is a credit for which payment is made, whether in money or otherwise; but

(c) does not include programme material that is the subject of a credit to which paragraph (b) applies; and

(d) does not include any programme or credit of the kind described in paragraph (a) or paragraph (b)—

(i) that promotes a scheduled programme on behalf of a broadcaster; or

(ii) that promotes only a station identity on behalf of a broadcaster; or

(iii) that constitutes an election programme.

Broadcaster’s Submissions on the Interlocutory Matter

[6]   RadioWorks submitted that the Campbell Live promo was a paid (or contra’ed) “commercial” which could not be considered by the Authority. It contended that the exception outlined in subsection (d)(i) above only applied to promos which were broadcast on the same channel or station as the programme being advertised.

Complainant’s Submissions on the Interlocutory Matter

[7]   The complainant submitted that the promo for Campbell Live was a “programme”, not an “advertising programme”. It noted that, under subsection (d)(i) of the definition, an advertising programme does not include any programme “that promotes a scheduled programme on behalf of a broadcaster”. Whether the promos were paid for (or contra’ed) was irrelevant, in the complainant’s view, and therefore the Authority had jurisdiction over the promos.

Authority's Findings

[8]   This decision relates to an interlocutory matter of jurisdiction. We are required to determine whether promos for Campbell Live, broadcast on Radio Live, were programmes or advertisements.

[9]   We note that subsection (a)(ii) of the definition states that an “advertising programme” is a programme for which payment is made, whether in money or otherwise. RadioWorks argues that because the Campbell Live promos were paid for, or “contra’ed”, they fell within the definition of an advertising programme.

[10]   However, subsection (d)(i) states that an advertising programme “does not include any programme or credit of the kind described in paragraph (a)...that promotes a scheduled programme on behalf of a broadcaster”. The first part of this definition means that whether the promo was paid for is irrelevant, and therefore we share the complainant’s view in this respect.

[11]   We consider that the promo broadcast on Radio Live promoted a scheduled programme, Campbell Live, on behalf of a broadcaster, TVWorks Ltd. The definition does not specify that the promo must be promoted by the same broadcaster who will be broadcasting the advertised programme.

[12]   Accordingly, if a promo “promotes a scheduled programme on behalf of a broadcaster”, it is not an “advertising programme” but is a programme which falls to be considered by this Authority.

[13]   For the sake of clarity, we wish to state clearly that this decision only applies to promos for “scheduled programmes” (subsection (d)(i)). In our view, this means promos which advertise a particular programme on a particular day – for example, Campbell Live on Tuesday 6 July 2010. These are the sorts of promos over which we consider Parliament intended the Broadcasting Standards Authority to have jurisdiction, because they have the potential to raise issues of broadcasting standards. In our view, generic promos for the Campbell Live programme would in most cases be classed as advertisements which fall to be considered by the Advertising Standards Authority.

For the above reasons the Authority accepts that it has jurisdiction over the promo for Campbell Live broadcast on Radio Live on Tuesday 6 July 2010.

Signed for and on behalf of the Authority

Peter Radich
Chair
26 October 2010