BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A DB Player Profile of cricketer Tony Blain was broadcast by Television One on 6 March

1994 during the cricket coverage on One World of Sport.

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

complained to Television New Zealand Ltd that the broadcast of the item sandwiched

between two promotions for Dominion Breweries amounted to contrived incidental liquor

promotion in contravention of the Programme Standards.

TVNZ accepted that the broadcast of the item showing a player wearing a shirt with a DB

logo amounted to a breach of the principle in the standards which requires the

minimisation of the incidental promotion of liquor. It reported that player profiles

containing similar shirt-front regalia would not again be broadcast. However, as the

appearance of the logo had been accidental, it did not uphold the complaint that the

broadcast was contrived. Dissatisfied with TVNZ's decision on the complaint that the

broadcast was contrived, Mr Turner on GOAL's behalf referred that aspect 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 viewed 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 the broadcast of a player

profile of Tony Blain during the cricket coverage on Television One on the afternoon of 6

March. The item, sandwiched between two sponsorship credits for Dominion Breweries,

showed Tony Blain wearing clothing which carried a DB logo.

As he was unsure whether the entire item was an advertising programme or whether the

profile was a programme in itself, Mr Turner complained to TVNZ under both the

Programme Standards for the Promotion of Liquor and under the Advertising Standards

Authority's Code for Advertising Liquor (Rules 11.b and g). Should the item be a

programme, he alleged that it contravened the prohibition on contrived incidental liquor

promotion in standard A3.a.

TVNZ considered the broadcast was an advertising programme and referred the complaint

to the Advertising Standards Complaints Board. However, on the basis that the interview

with Tony Blain was programme material sandwiched between two sponsorship credits,

the Board said that it did not have jurisdiction and referred the matter back to the

broadcaster.

TVNZ considered the complaint under the standard nominated by Mr Turner. It reads:

            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.

While acknowledging that incidental liquor promotion occurred from time to time where

the broadcaster had little control over the situation, TVNZ emphasised that where the

broadcaster had control it should follow the standard in spirit in addition to the legal

requirement.

It accepted that, because it had control over the situation in which Tony Blain had been

filmed for the profile, the shot should have been framed to exclude the logo visible on the

shirt. Accordingly, it upheld the complaint that the broadcast breached the overriding

principle in standard A3.

With regard to the specific complaint that the broadcast breached the provision

prohibiting contrived liquor promotion, TVNZ noted that the interview appeared within a

segment which formed part of the overall contract involving DB's sponsorship of New

Zealand cricket. However, it continued, the inclusion of the logo on the item shot by TVNZ

was accidental, not contrived, and thus did not contravene standard A3.a.

TVNZ concluded:

Following the decision by the [Complaints] Committee to uphold your complaint as

a breach of A3, the Director of Sport undertook to ensure that any player profiles

containing similar shirt-front regalia will not be shown during the final match of

the 1993-94 cricket season this weekend. It was also agreed that the whole matter

of player profiles will be reviewed should liquor sponsorship become involved in the

future. The Director of Sport will also remind relevant staff of our obligations to

minimise the incidental promotion of liquor as required by the codes.

In addition to expressing his dissatisfaction as to the complexity of the rules when he

referred the complaint to the Authority on GOAL's behalf, Mr Turner insisted that the

broadcast was contrived as TVNZ was a party to an arrangement with DB about cricket

sponsorship.

In its response to the Authority, TVNZ said in regard to the alleged breach of standard

A3.a:

In this regard we have never denied, and do not deny now, that the inclusion of

the DB Player Profile of Tony Blain (or any of the other similar DB Player Profiles

screened throughout the summer cricket season) formed part of a contractual

arrangement involving DB's sponsorship of cricket.

Television New Zealand was a party to that contract and a cash value was placed

on the player profile series.

However, we deny that the incidental liquor promotion in the form of the DB logo

on Mr Blain's shirt was contrived as part of that contract. It was an accident, the

intention being that, where possible, such regalia be excluded from the picture by

appropriate camera framing.

TVNZ added that it had confined its consideration of the complaint to the player profile

featuring the interview with Tony Blain. The two sponsorship credits between which it

was broadcast, it maintained, were subject to the Code for Advertising Liquor administered

by the Advertising Standards Complaints Board.

In his final comment on GOAL's behalf, Mr Turner argued that the issue was whether or

not the whole item was contrived – not just the segment when the logo was visible on the

shirt during the player profile.

The first matter addressed by the Authority was the relevance of TVNZ's point that the

display of the logo was accidental. While accepting unquestioningly that the inclusion on

this occasion of the logo was not deliberate, the Authority noted that in view of the

definition of "contrived" as "forced, artificial" (Concise Oxford), the standard does not

require proof of the broadcaster's intention. It imposes, to use the legal term, strict

liability. Whether or not a broadcast accidentally or deliberately contravened the

standard could be relevant when penalty was considered. It was not pertinent, the

Authority decided, when ruling whether or not the standard had been breached.

Whether to consider just the profile or the surrounding sponsorship credits was the second

matter considered by the Authority. It accepted TVNZ's argument that the contents of the

credits were matters outside its jurisdiction. Nevertheless, on this occasion the complaint

alleged that the broadcast was "contrived" incidental liquor promotion and, the Authority

decided, it was entitled to examine the impact of the surrounding items when ruling

whether or not a broadcast was contrived. Accordingly, it agreed with GOAL that this

complaint which referred to the profile sandwiched between two sponsorship credits

should be assessed as a total package when deciding the matter.

A complaint about contrived liquor promotion in contravention of standard A3.a,

however, is only relevant when the broadcaster is a party to the arrangement. That

requirement was met with regard to the broadcast complained about as TVNZ

acknowledged that the screening of the player profile sandwiched between the sponsorship

credits took place as part of the contract between itself and DB. Although the display of

the logo on the clothing was accidental, the Authority decided nevertheless that the

broadcast on this occasion of three liquor promotions in sequence – especially when the

broadcaster had control of the contents of the player profile – was contrived. To the

viewer, the interview with the cricketer with the DB logo on his clothing, when the

interview with him was packaged by being introduced and followed by DB sponsorship

credits, was forced and artificial.

For the reasons given above, the Authority upholds the complaint that the

broadcast by Television New Zealand Ltd of a player profile on 6 March

1994 breached standard A3.a of the Programme Standards for the

Promotion of Liquor.

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

Broadcasting Act 1989. It does not intend to do so, first, as this complaint has highlighted

the difficulties in understanding the jurisdictional boundaries between the Broadcasting

Standards Authority and the Advertising Standards Complaints Board respectively. The

Authority believes that it is important to clarify them as much as possible in the

forthcoming review of each organisation's standards.

Secondly, as noted in the body of the decision, the broadcaster's intent is a matter to be

considered when assessing penalty. As the inclusion of the logo during the player profile

was accidental on this occasion, the Authority believes that it is another reason why an

order is not necessary.

Thirdly, having upheld the complaint as a breach of the general principle in standard A3,

the Authority considered that TVNZ had acted responsibly to prevent the recurrence of a

similar breach.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
30 June 1994

Appendix

GOAL's Complaint to Television New Zealand Limited

In a letter dated 7 March 1994, the Secretary of the Group Opposed to Advertising of

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

broadcast on Television One at about 12.46pm on 6 March 1994.

The item, Mr Turner explained, was about cricketer Tony Blain and was broadcast

between two large promotions for Dominion Breweries (DB). Moreover, Mr Blain had

been wearing clothing bearing a DB logo and, Mr Turner maintained, the promotion of

DB had continued throughout the item.

Mr Turner said he was not sure of the status of the item. If it was a sponsorship

advertisement, it breached the liquor code in that it did not contain a statement of

sponsorship and was more than a "brief" reference to the sponsor.

If it was a "programme sandwiched between two sponsorship credits", it was contrived

liquor promotion in contravention of standard A3.a of the Programme Standards for the

Promotion of Liquor.

TVNZ's Response to the Formal Complaint

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

31 March 1994.

TVNZ reported that it had first referred the complaint to the Advertising Standards

Complaints Board (ASCB) as it thought the material was a sponsorship advertisement.

However, the Board had disagreed and said that the interview with Tony Blain was

programme material broadcast between two sponsorship credits and that the item was

subject to the programme standards – not to the advertising codes.

Consequently, TVNZ had assessed the complaint under standard A3.a of the Programme

Standards and had proceeded on the basis that Mr Turner's concern focussed on the DB

logo visible on Tony Blain's shirt during the short interview. Pointing out that it had

control over the situation when the item was filmed (unlike items which showed players

practising), TVNZ said that the incidental promotion of liquor had not been minimised as

required by the standard. Consequently, the broadcast breached that principle contained

in standard A3.

However, as the appearance of the logo was an accident rather than "contrived", standard

A3.a had not been breached.

TVNZ concluded:

Following the decision by the committee to uphold your complaint as a breach of

A3, the Director of Sport undertook to ensure that any player profiles containing

similar shirt-front regalia will not be shown during the final match of the 1993–

94 cricket season this weekend. It was also agreed that the whole matter of player

profiles will be reviewed should liquor sponsorship become involved in the future.

The Director of Sport will also remind relevant staff of our obligations to minimise

the incidental promotion of liquor as required in the codes.

GOAL's Complaint to the Broadcasting Standards Authority

Dissatisfied that TVNZ had not upheld the specific complaint that the broadcast breached

standard A3.a, Mr Turner on GOAL's behalf referred that aspect of the complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Mr Turner argued that the item should be regarded as a "contrived" programme as it

appeared between two DB promotions and, even if there was no direct payment, the

broadcast generated goodwill, a recognised economic asset, between DB and TVNZ.

As a separate point, he noted that TVNZ had sent the complaint to the ASCB which had

referred it back. He added:

I find this to be evidence of the complexity of the rules. If TVNZ and the ASCB have

differing views, what hope has the ordinary citizen of understanding the rules?

TVNZ's Response to the Authority

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

is dated 13 April 1944 and TVNZ's reply, 18 April.

TVNZ pointed out that it had upheld the complaint under standard A3 as the item, by

showing the brewery logo on Tony Blain's shirt throughout, had not minimised the

incidental promotion of liquor. It also acknowledged that the broadcast of DB Player

profiles formed part of DB's contractual arrangement for the sponsorship of cricket.

TVNZ, it added, "was a party to the contract and a cash value was placed on the player

profile series".

However, TVNZ denied that the incidental promotion broadcast in the form of the logo

was contrived:

It was an accident, the intention being that, where possible, such regalia be

excluded from the picture by appropriate camera framing.

It concluded:

We do point out that in considering this complaint, Television New Zealand Limited

confined itself to the interview with Tony Blain – which we believe to be the

programme material falling between two sponsorship credits, judgement on which

could only be made under the Code for Advertising Liquor which is under a

different jurisdiction.

GOAL's Final Comment to the Authority

When asked for a comment on TVNZ's response, in a letter dated 28 April Mr Turner on

GOAL's behalf agreed with TVNZ that the complaint focussed solely on standard A3.a. He

added:

I believe that the argument is not about whether or not the logo on Mr Blain's

shirt was contrived but about whether or not the whole item was contrived.