BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

The Waikato vs Otago rugby match was screened on One World of Sport on Saturday

afternoon 2 October. Before the game, a pre-recorded interview with two Otago players

was shown in which both players wore jerseys on which the name "Speights" was carried.

A commentator was shown a little later in another pre-recorded item standing in front of

a scoreboard at Rugby Park in Hamilton which carried a "Waikato Draught Beer" sign.

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

complained to Television New Zealand Ltd that both items breached nominated aspects of

the standard requiring that the incidental promotion of liquor be minimised.

Explaining that the focus in the items had been the players and commentator respectively,

not the incidental liquor promotion, TVNZ declined to uphold the complaint under the

specific aspects nominated. Nevertheless, TVNZ continued, the size of the liquor signs on

the players' jerseys contravened the Voluntary Sports Code and TVNZ upheld the complaint

against an aspect of the standard not cited by GOAL. It advised that the Sports

Department staff had been instructed not to show, if possible, players wearing practice

apparel similar to that which was worn on this occasion. Dissatisfied that the complaint

had not been upheld under the specific aspects of the standard nominated in the original

complaint, GOAL referred the complaint to the Broadcasting Standards Authority under

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

For the reasons given below, the Authority upheld the specific aspect of the complaint that

the insert which showed the practice jerseys worn by the Otago rugby players failed to

ensure that the incidental promotion of liquor was minimised.

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.

The Secretary of GOAL, Mr Cliff Turner, complained to TVNZ about two parts of the

broadcast of the Waikato vs Otago rugby game on One World of Sport on Saturday

afternoon 2 October. Both parts complained about referred to pre-recorded items

screened before the game began and both, GOAL argued, breached standard A3.a and A3.c

of the Programme Standards for the Promotion of Liquor.

The first part of the complaint related to the broadcast of an interview with two Otago

players. During this interview, Mr Turner wrote, the players wore jerseys "on which

liquor promotion was prominently displayed". The second part was a pre-recorded item

from Rugby Park in Hamilton in which the commentator "was shown against a

background of advertising for Waikato Draught beer".

TVNZ assessed the complaints against the nominated standards, A3.a and A3.c, and, in

addition, standard A3.d. Standard A3 provides:

            A3        Broadcasters will ensure that the incidental promotion of liquor is

             minimised and in particular:

                        a.    Will not be party to any contract or arrangement where incidental

                    liquor promotion is a contrived part of the programme

                        b.    Will ensure that backdrops and props for any in-house studio

                    programme do not carry liquor promotions (not applicable to radio)

                        c.    Will not unduly focus in a live or on-location event on any

                    particular advertising signage, logo or any other sound or visual

                    effect which promotes liquor

                        d.    Will not broadcast anything which is in breach of section 1, relating

                    to incidental promotion and saturation, of the Voluntary Sports

                     Code for Liquor Advertising and Promotion on Television.

                        It is recognised that incidental liquor promotion occurs from time to time in

    programmes where broadcasters have little or no control over the situation.

    In those situations they must minimise the exposure to the best of their

    ability. Where broadcasters have control of the situation, they will ensure

    that the standards regarding incidental promotion are followed in the spirit

    as well as the letter.

Dealing with the interview with the two players, TVNZ stated that the appearance of the

logo on the jerseys was not part of any "contractual arrangement" in which it was

involved and thus standard A3.a was not breached. Given the size of the logos, it had not

been possible to exclude them completely although, as efforts had been made to minimise

their exposure, standard A3.c had not been contravened.

With regard to the broadcast from Rugby Park, TVNZ described GOAL's remark about the

background for the commentator as involving a degree of exaggeration, observing:

In fact the commentator was standing in front of Rugby Park's distinctive

scoreboard.

The location had been chosen, TVNZ added, to establish visually as well as verbally that the

insert during the live broadcast from a sports venue was coming from a different venue.

It continued:

The Waikato Draught signage to which you refer is partly obscured by the

commentator and is there for only a very short time. The Committee believed that

the focus of the shot was clearly on the commentator, rather than the signage.

There was, of course, no contractual arrangement involving Television New

Zealand concerning the placement of the signage.

That aspect of the complaint was not upheld.

TVNZ then noted that rules 1.3.3 and 1.3.5 of the Sports Code require respectively that

sponsors' logos on competition or practice apparel be "reasonably sized" and that casual

apparel be "discreetly branded". Taking into account that standard A3.d provides that a

breach of the Voluntary Sports Code for Liquor Advertising and Promotion on Television is

regarded as a breach of the programme standards, TVNZ stated:

It was the Committee's view that whether the jerseys be regarded as "practice

apparel" or "casual apparel", the logos displayed on them were neither "reasonably

sized" nor "discreetly branded".

They were clearly much larger than the Voluntary Code allows for and the

Committee therefore concluded that the showing of them on One World of Sport

was in breach of the rules. Although you did not quote it in your letter, your

complaint was upheld as a breach of code A3.d.

TVNZ then advised GOAL of the action taken on the upheld part of the complaint:

The Head of the Sports Department has issued a memorandum to his staff advising

them that if they again find themselves confronted with logos on practice apparel

of the prominence of the Speights logos on the Ellis and Leslie jerseys they must

endeavour to keep them out of shot, persuade the players to remove the jerseys, or

make a decision not to shoot the item.

The Head of the Department also advised the Committee that he has expressed his

concern to the brewery concerned – which is a signatory to the Voluntary Sports

Code.

When, on GOAL's behalf, Mr Turner referred the complaint to the Authority, he noted

that the complaint had been upheld under standard A3.d. However, standard A3.a under

which neither aspect of the complaint was upheld was the principal concern. Whereas

TVNZ had denied that it was involved in a "contractual arrangement" to film the logos, Mr

Turner pointed out that the standard referred to a "contract or arrangement". He

continued:

Some person must have "arranged" for the two rugby players to be present, dressed

in their logo-bearing clothing, at a rendezvous with the camera. TVNZ, by being

present became a party to the arrangement.

The same argument can be used when considering the second part of the complaint

which involved a shot of liquor advertising in an empty Rugby Park at Hamilton.

An arrangement must have been made even it if was only to allow TVNZ to have

access to the ground.

As for the standard A3.c aspect of the complaint and the shot from Rugby Park in

Hamilton, Mr Turner maintained that, because the ground was empty, the shot could

have excluded liquor promotion completely.

TVNZ responded to the "arrangement" point in its comment to the Authority. Pointing out

that anyone's appearance on television required an arrangement of some kind, TVNZ

argued that the use of the word in standard A3.a implied the existence of some financial

transaction or a contract of some kind. That had not occurred with regard to the

broadcasts complained about.

The Authority initially noted that TVNZ had upheld the complaint as a breach of the

Voluntary Sports Code and, consequently, in contravention of standard A3.d. It had done

so although GOAL had not cited that aspect of the standard. Although questioning the

basis for TVNZ's reasoning for its decision on this occasion, ie in the Authority's opinion for

all intents and purposes the players appeared to be wearing practice apparel which under

standard 1.3.4 has no size restrictions, the Authority commends TVNZ for the action it has

taken to prevent a repetition of a broadcast displaying practice clothing or casual apparel

which carries liquor company logos so prominently.

Standard A3 – General Comments

The Authority began its assessment of both parts of the complaint by considering whether

the broadcast breached the principle contained in standard A3. The principle states:

            A3        Broadcasters will ensure that the incidental promotion of liquor is

             minimised.

In paragraphs a–d, the standard then proceeds to provide some specific examples which

may be applicable.

Paragraphs a and b, by imposing outright bans, contain clear obligations. Paragraph c is

an elaboration of the overriding principle but because its application involves some degree

of judgment about the specific event, it can be seen as providing assistance when applying

the general requirement rather than imposing an outright ban on certain incidental

promotions of liquor as do paragraphs a and b.

Paragraph d can also be seen as an elaboration of the overriding principle although,

because of its applicability to breaches of the Voluntary Sports Code, it is in effect dealing

with a distinct issue and, accordingly, is somewhat out of place with the preceding

paragraphs a–c. When standard A3 is revised, it should be presented in a way which is

separately identified.

Standard A3 – The Overriding Principle

On this occasion and putting TVNZ's decision on standard A3.d to one side, the Authority

first examined both aspects of the broadcast complained about to decide whether or not

the overriding principle had been contravened.

Because of the size of the logos on the practice apparel worn by the two Otago players

during the insert before the featured game when they were interviewed, the logos were

not only prominent but also dominant in some of the shots shown. Indeed, there appeared

to be little attempt to minimise the exposure of the logos. As a result, the Authority had no

hesitation in deciding that the incidental promotion of liquor was not minimised. In the

circumstances, standard A3 had been breached. In reaching that conclusion, the

Authority did not have to use the expansion of the overriding principle contained in

paragraph c of standard A3. It would add, however, as GOAL cited A3.c in its complaint,

that it believed that the specific provision had been contravened.

A similar approach was taken in regard to the aspect of the complaint about the insert

from Rugby Park in Hamilton which showed a scoreboard carrying a liquor company

logo.

Taking into account the brevity of the shot from Rugby Park in Hamilton and that the

sign complained about was partly obscured by the reporter, the Authority concluded that

the incidental promotion of liquor had been minimised during the broadcast of that insert

as required by the overriding principle in standard A3 and, furthermore, the elaboration

in paragraph c was of no assistance in identifying a more specific breach.

Standard A3.a – The Rugby Players' Clothing

The Authority was required to determine whether the breach of standard A3 which

occurred when showing the two rugby players wearing practice apparel was one which

specifically contravened nominated standard A3.a.

Standard A3.a has two limbs. First, the broadcaster must not be a party to a contract or

arrangement where incidental liquor promotion occurs, and secondly, the incidental

liquor promotion must not be a contrived part of the programme.

On this occasion, it was not necessary to determine the second limb as the first was not

contravened. A majority of the Authority considered that the incidental liquor promotion

included in the broadcast did not occur as the result of a contract or arrangement

involving the broadcaster. As explained in a recent Decision (No: 13/94), the majority

considered that the wording in the standard implies a payment of some kind. As there was

no indication of such an "arrangement" involving any exchange in which TVNZ was a

party, the majority concluded that the first leg of standard A3.a was not transgressed.

The minority disagreed. It maintained that broadcasting an item in itself where the

broadcaster exercised control over the place of the interview and the people to be

interviewed was, in itself, sufficient to amount to an "arrangement" within the meaning of

the standard.

Accordingly, although the overriding principle in standard A3 had been breached, the

majority decided that the broadcast did not contravene the specific prohibition in standard

A3.a.

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

broadcast of an interview with two Otago players wearing practice jerseys

bearing a liquor company logo during One World of Sport on 2 October

1993 breached standard A3.c of the Programme Standards for the

Promotion of Liquor.

Television New Zealand Ltd concluded that the broadcast breached standard

A3 because it contravened the specific requirement in standard A3.d. The

Authority concurs that the broadcast breached standard A3 for the

additional reason that it breached the specific requirement in standard

A3.c.

A majority of the Authority declines to uphold the complaint that the same

item breached standard A3.a of the same Programme Standards.

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

Broadcasting Act 1989. Because this complaint has required the Authority to examine

and to explain its approach to complaints which allege a breach of A3.a–c, it believes it

would be inappropriate to impose an order.

The Authority would also record its intention to revise the layout of this standard during

the current review of the Programme Standards for the Promotion of Liquor.

As explained in the decision, GOAL complained about the broadcast under standards A3.a

and A3.c of the Programme Standards. TVNZ upheld the complaint under standard A3.d

as the size of the logos on the Otago players' practice apparel breached the spirit of the

Voluntary Sports Code as reflected in standards 1.3.3. and 1.3.5 of that Code. The

Authority is of the view that the insert showing the Otago players at practice, in addition,

would have contravened the specific requirements contained in standard 1.3.2(c) of the

Voluntary Code had this standard been identified.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
5 May 1994

Appendix

GOAL's Complaint to Television New Zealand Limited

In a letter dated 3 October 1993, the Secretary of the Group Opposed to Advertising of

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

incidental liquor advertising which had occurred during the broadcast of the Waikato vs

Otago rugby match on TV1 on 2 October.

At 2.15pm, he wrote, a pre-recorded interview with two Otago players was shown and

both men wore jerseys which carried prominent liquor promotion. A little later another

pre-recorded interview showed a commentator against a background of beer advertising

at Rugby Park in Hamilton.

Both items, Mr Turner argued, breached standards A3.a and A3.c of the Programme

Standards for the Promotion of Liquor.

TVNZ's Response to the Formal Complaint

TVNZ advised GOAL of its Complaints Committee's decision in a letter dated 11 November

1993 when it reported that the broadcast had been assessed against the nominated

standards.

As for the interview with the Otago players wearing jerseys displaying the name of

"Speights", TVNZ said that given the size of the logos, it was not possible to exclude them

completely. However, the camera operator had tried to minimise their exposure and the

focus, in compliance with standard A3.c, was on the players at all times. As the

appearance of the logo on the jersey was not part of any contractual arrangement in

which TVNZ was involved, standard A3.a was not contravened.

Turning to the item showing the commentator standing in front of the scoreboard, TVNZ

explained that as the insert into the live broadcast came from a different sports venue, it

was important to establish the location of the insert both visually and verbally. The item

had used a brief shot of Rugby Park's distinctive scoreboard and as the focus was on the

commentator, standard A3.c had not been breached. Again, as there was no arrangement

involving TVNZ about the placement of signage, standard A3.a was not breached either.

TVNZ carried on to examine the liquor logo on the practice jerseys under the Voluntary

Sports Code for Liquor Advertising and Promotion on Television. Standards 1.3.3 and

1.3.5 of that code refer respectively to "reasonably sized" logos and "discreetly branded"

casual apparel. TVNZ continued:

It was [TVNZ]'s view that whether the jerseys be regarded as "practice apparel" or

"casual apparel", the logos displayed on them were neither "reasonably sized" or

"discreetly branded".
           

They were clearly much larger than the Voluntary Code allows for and the

Committee therefore concluded that the showing of them on One World of Sport

was in breach of the rules.

Pointing out that a breach of the Voluntary Code amounted to a breach of the

broadcasting standards under standard A3.d, TVNZ upheld the complaint as a breach of

that provision.

TVNZ concluded:

The Head of the Sports Department has issued a memorandum to his staff advising

him that if they again find themselves confronted with logos on practice apparel of

the prominence of the Speights logos on the Ellis and Leslie jerseys they must

endeavour to keep them out of shot, persuade the players to remove the jerseys, or

make a decision not to shoot the item.

The Head of the Department also advised the Committee that he has expressed his

concern to the brewery concerned - which is a signatory to the Voluntary Sports

Code.

GOAL's Complaint to the Broadcasting Standards Authority

Dissatisfied that the complaint was not upheld under the nominated standards, in a letter

dated 15 November 1993 on GOAL's behalf Mr Turner referred the complaint to the

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

Referring to the wording of standard A3.a, Mr Turner said that broadcasters were obliged

not to be a party to any contract or arrangement where incidental liquor was a contrived

part of the programme. Whereas TVNZ denied that it had been part of a "contractual

arrangement", it had not addressed the issue of whether it was part of an informal

"arrangement" and, Mr Turner continued:

Some person must have "arranged" for the two rugby players to be present, dressed

in their logo-bearing clothing, at a rendezvous with the camera. TVNZ, by being

present, became a party to the arrangement.

The same argument can be used when considering the second part of the complaint

which involved a shot of liquor advertising in an empty Rugby Park at Hamilton.

An arrangement must have been made even if it was only to allow TVNZ to have

access to the ground.

As for the A3.c aspect of the complaint which requires that advertising signage will not be

unduly focussed on, Mr Turner said that as Rugby Park was empty, a visual could have

been used which excluded all liquor advertising.

TVNZ's Response to the Authority

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

letter is dated 10 November 1993 and TVNZ's reply, 22 December.

Pointing out that the complaint had been upheld as a breach of the Voluntary Code in

that the logos were neither discreet nor reasonably sized, TVNZ denied that it was a party

to any arrangement to show the players on television. It maintained that the appearance

of almost anyone on television involved an arrangement of some kind but argued that an

"arrangement", as anticipated by standard A3.c, involved TVNZ in a financial transaction

or contract of some kind. That did not apply.

With regard to the complaint about the liquor signs surrounding the scoreboard, TVNZ

said that the scoreboard was closed because it was a distinctive feature at Rugby Park in

Hamilton and, accordingly, would have been recognised by viewers.

GOAL's Final Comment to the Authority

When asked to comment on TVNZ's reply, in a letter dated 17 January 1994 on GOAL's

behalf Mr Turner maintained that the reference to an "arrangement" in standard A3.a

was not confined to a "financial arrangement" as TVNZ argued. The wording "contract or

arrangement", Mr Turner continued, envisaged an arrangement other than a financial

one.