BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The Franco Zeffirelli film of the Verdi opera Otello, starring Placido Domingo, was shown

on Television One at 10.35pm on 6 February 1994.

Mr North complained to Television New Zealand Ltd that the programme was "marred by

intrusive advertisements". Referring in particular to one commercial break which

destroyed continuity of the story line near its climax, he maintained that the practice of

inserting advertisements breached the broadcasting standard requiring good taste.

While expressing sympathy to Mr North, TVNZ said that the commercial environment in

which it operated required revenue from the sale of the advertising. Adding that the

number of breaks in Otello had been reduced in view of the potential for upsetting

viewers, TVNZ declined to uphold the complaint. Dissatisfied with TVNZ's response, Mr

North 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 declined to uphold the complaint.

Decision

The members of the Authority have been supplied with the programme complained about

and have read the correspondence (summarised in the Appendix). The tape of the

programme supplied did not include the commercial breaks but TVNZ provided the

Authority with a computer printout which showed the number of commercial breaks

during the broadcast of Otello and listed the content of each break broken down by

region. As is its practice, the Authority has determined the complaint without a formal

hearing.

Describing the practice as "offensive", Mr Graeme North complained to TVNZ about the

"intrusive" commercial breaks included in the film Otello when broadcast on Television

One at 10.35pm on 6 February. He said the practice was equivalent to the insertion of

advertisements in art hanging in a gallery or requiring an orchestra to interrupt a concert

to play advertising jingles. The practice, Mr North concluded, breached the broadcasting

standard requiring broadcasters to observed good taste.

TVNZ assessed the complaint under standard G2 of the Television Code of Broadcasting

Practice which requires broadcasters:

To take into consideration currently accepted norms of decency and taste in

language and behaviour, bearing in mind the context in which any language or

behaviour occurs.

While expressing sympathy to Mr North as to his concern about the intrusive nature of

the commercial breaks, TVNZ pointed to the commercial imperatives with which it had to

comply and explained that a large portion of its revenue came from the sale of advertising.

It explained that unlike Sky, which showed films without commercials, it did not charge

viewers a subscription. Because the film had not been made for television, breaks for

commercials had not been included and, TVNZ noted in addition, special care had been

exercised to ensure that advertising breaks coincided with the end of scenes or action

contained in the original opera.

When he referred his complaint to the Authority, Mr North pointed out that TVNZ

acknowledged that the practice about which he complained could upset some viewers.

That concession, he added, referred to a matter of standards which should not be

submerged by commercialism.

In its response to the Authority, TVNZ emphasised that it operated a commercial television

service and commented:

We are not at all sure that the codes governing programme standards apply to the

fact that advertising breaks are inserted into programmes as a matter of

commercial reality in the era of deregulation.

Taking into account the following complaints principle in s.5 of the Broadcasting Act:

(c) Complaints based merely on a complainant's preferences are not, in general,

capable of being resolved by a complaints procedure:

the Authority began its deliberations by examining whether or not the issue raised by Mr

North was a matter of broadcasting standards. It referred to two of its earlier decisions in

which it had addressed the matter. Decision No: 20/90, dated 18 October 1990, dealt

with a complaint that the presence of advertisements during a mini-series examining the

life and times of legendary Nazi-hunter, Simon Weisenthal, breached the good taste

standard as the commercial breaks had the effect of trivialising the terrible crimes

portrayed.

In that Decision the Authority accepted that there might well be occasions where

community standards of good taste and decency would suggest that a particular

programme be presented without interruption. A state funeral was advanced as a possible

example. In the instance complained about, however, the Decision recorded:

In the Authority's view, the interruption of the broadcast of "Simon Weisenthal" by

commercial breaks did not trivialise the holocaust or otherwise amount to a breach

by the broadcaster of its responsibilities to maintain standards of good taste and

decency. In this connection, it should be noted that the Authority was not

persuaded to the view that TVNZ allowed the quest for advertising revenue to win

out over the maintenance of standards of good taste and decency: the broadcaster's

motives in utilising commercial breaks are not relevant in assessing whether

standards have or have not been breached by the broadcast of the advertisements.

The Authority also observed at the time that although the advertising breaks per se did not

amount to a breach of good taste and decency, individual advertisements which detracted

from or ridiculed the material contained in the programme could contravene the

standard.

This latter point was referred to in a complaint about the programme Bikini Jam:

Uncovering the Cover Girl (Decision No: 86/92, 5 November 1992). One aspect of the

complaint alleged that it was a breach of good taste to broadcast a trailer for the

programme at the conclusion of a programme called Men, Sex and Rape. The complaint

alleged that it was insensitive and grimly ironic to show a promo for Bikini Jam at the end

of a programme which considered how the male culture fostered rape. TVNZ upheld that

aspect of the complaint as a breach of standard G2 of the Television Code.

The Authority believed that its earlier decisions correctly defined its jurisdiction in this

area. Following these rulings, it does not have the jurisdiction to deal with complaints

which allege that advertising breaks in themselves are a breach of the standard requiring

broadcasters to maintain standards of good taste and decency except, possibly, in

exceptional circumstances. It does have the jurisdiction however, to determine specific

complaints whether or not the broadcast of a trailer for a forthcoming programme

complies with that standard when assessed in the context in which the promo is broadcast.

Whereas the Authority no longer has the jurisdiction to deal with complaints about the

content of advertisements (as opposed to trailers for forthcoming programmes), it

nevertheless retains the function of determining whether the broadcast of an

advertisement breaches the good taste and decency standard when assessed in the context

of the programme which is interrupted by the advertising break.

Mr North alleged that the commercial breaks in themselves contravened the broadcasting

standards. Although Zeffirelli's film of the Verdi opera Otello was a high quality

programme, it was still an entertainment programme and, in contrast with an important

state occasion or similar situation referred to in Decision No: 20/90, the Authority

concluded that the broadcast of the commercial breaks during Otello did not breach

standard G2 of the Television Code.

For the reasons given above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
9 May 1994

Appendix

Mr North's Complaint to Television New Zealand Limited

In a letter dated 18 February 1994, Mr Graeme North of Warkworth complained to

Television New Zealand Ltd about the commercial breaks during the broadcast of the film

Otello at 10.35pm on 6 February.

Describing the film as "marred by intrusive advertisements", he referred to one break in

particular which meant that an aria was cut short and the continuity of the film ruined

near its climax. He wrote:

I consider the whole business of inserting advertisements into films and plays that

are of artistic, aesthetic, and cultural significance is offensive, and even more so

when material is cut from the original work to fit them in.

Saying that the practice was the equivalent of inserting advertisements in art hanging in a

gallery or requiring an orchestra to interrupt a concert to play advertising jingles, Mr

North said the practice was a breach of the broadcasting standard which requires the

observance of good taste.

In a further letter to TVNZ dated 25 February, Mr North said the practice amounted to

"artistic insensitivity" and was an insult and in "breach of good manners" - to the

composer, performer and audience.

TVNZ's Response to the Formal Complaint

TVNZ advised Mr North of its Complaints Committee's decision in a letter dated 3 March

1994. It reported that the complaint had been considered under standard G2 of the

Television Code of Broadcasting Practice.

TVNZ began:

While the [Complaints] Committee was sympathetic towards your concern about

the intrusive nature of commercials, it believed that perhaps you were not fully

aware of the commercial realities of television in New Zealand these days.

TVNZ reported that revenue was necessary to buy programmes for broadcast and that a

large proportion of its revenue came from the sale of advertising. The licensing fee, it

added, was distributed by New Zealand On Air for specific programmes and that it

comprised a tiny proportion of TVNZ's income. It pointed out that the channel which

showed films without commercial breaks, Sky, charged viewers a subscription in addition

to selling commercial space between programmes.

Noting that Mr North had referred to concert halls and movie theatres, TVNZ drew

attention to the fact that admission was usually charged and that advertising occurred in

other ways - such as on printed programmes.

TVNZ continued:

All that notwithstanding, the committee heard that in the case of "Otello" the

potential for causing upset to viewers was recognised and as a consequence the

advertising breaks were placed only at points in the film where the producer had

decided on a natural fade - coinciding it is believed with the ends of scenes or acts in

the original opera. The committee was shown the evening's presentation log which

contained an instruction from the programmer to take care with the placement of

the advertising breaks. As it happened, there were fewer breaks placed in this

programme than would normally be the case for a film of that duration.

The committee found no point in the film where an aria had been cut. It is possible

that the producer, Franco Zeffirelli, may have included a shortened version of one

of the original Verdi arias, but nothing was cut by Television New Zealand.

It declined to uphold the complaint.

Mr North's Complaint to the Broadcasting Standards Authority

Dissatisfied with TVNZ's decision, in a letter dated 7 March 1994 Mr North referred his

complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting

Act 1989.

He listed six reasons for his dissatisfaction.

1) Commercial expediency, he argued, was irrelevant when showing a film of high

cultural value. Manners and good taste were realities as much as commercial ones.

2) He also considered the reference to other forms of entertainment to be irrelevant.

The point was not the amount of money paid, but:

The fact is that somehow or other I did pay something, and in this instance

my expectation and enjoyment was ruined by the actions of the screening

agent, in this instance a public broadcaster.

3) The reference to the shortened aria had not involved cutting a significant length of

material but an abrupt break before the last note was completely finished.

4) Pointing out that while some material made for commercial television was designed

to include commercial breaks, he argued that other material which was culturally

important should be treated with more sensitivity and respect. He expressed horror

should TVNZ screen "The Piano" and include commercial breaks.

5) He was not complaining, he explained, about the screening of commercials before

or after films or other culturally sensitive material but during the programmes.

6) By acknowledging the potential for upset, he maintained that TVNZ recognised

that its practice was not acceptable to its audience. However, he was upset by its

insensitive arrogance and was not mollified by its sympathy.

He concluded:

Of course, I recognise that the implications of my complaint might be far reaching,

and I can understand TVNZ doing its best to dismiss this complaint.

Nevertheless, I submit that any commercial implication of my complaint should

have no bearing on the fundamental nature of my complaint in this instance. My

complaint is about standards of behaviour by public broadcasters, not

commercialism.

TVNZ's Response to the Authority

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

letter is dated 14 March 1994 and TVNZ's reply, 21 March.

Noting that Mr North alleged a breach of the good taste and decency standard on the

grounds that the inclusion of commercial breaks in Otello was offensive, TVNZ

commented:

We are not at all sure that the codes governing programme standards apply to the

fact that advertising breaks are inserted into programmes as a matter of

commercial reality in the era of deregulation.

Nevertheless, TVNZ had made an effort to accommodate Mr North's concerns as it had

explained in the letter to him. It added two points.

1) It believed Mr North was being a trifle presumptuous to argue that a programme

which he valued highly should be shown free of commercials. A good local

production could be more important than an overseas production and:

Television New Zealand cannot accept that "opera buffs" deserve to be

treated as a group apart when it comes to judging how their programmes

are to be shown.

2) TVNZ was conscious of the need to place advertising breaks carefully in high

quality programmes which were not originally made for television. The

presentation staff had been under instructions to place the breaks only where

natural pauses occurred.

As a consequence, this programme had fewer commercial breaks than

normal - only six in a timespan which would normally accommodate nine.

TVNZ concluded:

We submit that in the context of a commercial television service, the inclusion of

commercial breaks in "Otello" was not a breach of Code G2.

We are unable to provide a recording of the programme complete with commercial

breaks. We enclose a VHS tape of "Otello" and a printout of the commercial breaks

inserted during the broadcast.

Mr North's Final Comment to the Authority

When asked to comment on TVNZ's response, in a letter dated 29 March 1994 Mr North

listed four points.

1) He had accepted that standard G2 was the most appropriate one under which to

complain on TVNZ's advice.

2) The core of his complaint, he repeated, was:

... the insensitive and abrupt insertion of advertising materials into high

quality programmes that were not designed to take them is a practice that is

offensive both to the artists involved in producing the work, and to the

viewers. This was typified particularly for me by the manner in which

advertising was inserted into the film I have cited.

3) TVNZ's use of the phrases "trifle presumptuous" and "opera buff" were "ad

hominem" arguments used when logic was exhausted.

4) By accepting that advertising breaks needed to be placed carefully, he argued that

TVNZ accepted that current practice had the potential to cause upset.

He concluded:

I fail to see any conclusive argument from TVNZ that says that this practice, which

I maintain is offensive when done to certain material of high artistic merit, is

acceptable simply because it takes place in the context of commercial television.