BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

Summary

The fitness assessment segment on Body and Soul broadcast on Television One at

9.05pm on 15 July featured All Black Frank Bunce. The weekly magazine programme

presents items on healthy lifestyles.

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

complained to Television New Zealand Ltd, the broadcaster, that because the item

showed Mr Bunce – an All Black hero – ordering a glass of beer in a hotel and wearing a

shirt carrying Lion Red beer advertising, it breached a number of the standards relating

to the incidental promotion of liquor.

The same matters were raised in the complaint from the Health Promotion Advisor

with Alcohol Healthwatch, Ms Morgan. Particular concern was expressed as, it was

said, that Mr Bunce worked for Lion Breweries.

Acknowledging that parts of the broadcast amounted to a serious infringement of the

standards, TVNZ upheld aspects of the complaint and advised GOAL that the

transgression had been brought to the programme producer's attention. It declined to

uphold the aspects of the complaint that the broadcast involved an arrangement to

allow for the contrived promotion of liquor, or that the incidental promotion

contravened the prohibition on saturation.

Dissatisfied that those aspects were not upheld, Mr Turner on GOAL's behalf

referred them to the Authority under s.8(1)(a) of the Broadcasting Act 1989. On

Alcohol Healthwatch' behalf, Ms Morgan expressed dissatisfaction with the action

taken by TVNZ on the aspect of the complaint upheld when she referred that matter

to the Authority under s.8(1)(a).

For the reasons below, the Authority endorsed TVNZ's decision on the aspects upheld

and declined to uphold the points raised by GOAL in its complaint to the Authority. As

for the action taken by TVNZ, the Authority decided that it was insufficient and that a

broadcast statement was appropriate.

Decision

The members of the Authority have viewed a tape of the programme complained

about and have read the correspondence (summarised in the Appendix). As is its

practice, the Authority has determined the complaints without a formal hearing.

A fitness assessment of a celebrity is a regular feature segment of the weekly magazine

programme, Body and Soul which focuses on healthy lifestyles.

All Black Frank Bunce was the celebrity featured on the programme broadcast on 15

July and both his eating and drinking habits were contrasted with the healthy lifestyle

expected of a high profile sportsperson. The item began with Mr Bunce entering a bar

and, after requesting water (described by the presenter as the "wrong drink"), he

entered again and asked for what the presenter called the "right drink" and was given a

glass of beer. During the fitness exercises, he was shown wearing a t-shirt carrying

advertising for Lion Red beer.

GOAL's spokesperson, Mr Cliff Turner, and Alcohol Healthwatch's Ms Cherry

Morgan complained to TVNZ that the broadcast breached the following provisions in

the Programme Standards for the Promotion of Liquor.

A1    Saturation of liquor promotions, separately or in combination, must be

avoided. In addition, liquor advertisements shall not be broadcast

consecutively in any one break.

            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.

                        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.

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.

On the basis that the incidental promotion of liquor had not been minimised in a

situation over which it had control, TVNZ upheld the complaint under standard A3.c.

As the segment containing the incidental liquor promotion had been interspersed with

a great deal of other material, TVNZ declined to uphold the saturation complaint under

standard A1. Further, as Mr Bunce had not received a payment from TVNZ for his

appearance, standard A3.a had not been contravened as, TVNZ said, it had not been

"a party to any contract or arrangement".

With regard to the aspect upheld, TVNZ advised the complainants that Body and

Soul's executive producer, who had been advised of the breach, apologised and assured

TVNZ that efforts would be made to ensure that a similar breach did not recur. One

complainant, GOAL, referred the aspects of the complaint not upheld to the

Authority. It did not refer "the action taken" aspect although in a later letter it

questioned TVNZ's action in not checking programmes commissioned from

independent production houses before their broadcast to ensure compliance with the

standards. The other complainant, Alcohol Healthwatch, confined its referral to its

dissatisfaction with the action by TVNZ. It argued that "meaningful sanctions" were

necessary to ensure that the standards were taken seriously by broadcasters.

The Authority began by investigating TVNZ's decision not to uphold the aspects of

the complaint which alleged a breach of standards A1 and A3.a.

With regard to standard A1, saturation occurs within a "viewing period". A minority

of the Authority, taking into account the definition of this term given in previous

decisions, decided that it referred to the entire Body and Soul programme. The

majority, however, argued that the saturation test could be applied to the specific

fitness assessment segment. But the majority was divided as to whether saturation of

liquor promotion had occurred on this occasion. In combination with the minority

which regarded the entire programme as the "viewing period, a majority of the

Authority did not accept that the liquor promotion broadcast on this occasion

contravened the saturation prohibition when measured either over the entire

programme or the specific segment. Accordingly, the Authority declined to uphold

the alleged breach of standard A1.

Whether the broadcast breached standard A3.a depended on the interpretation given to

the provision. A breach requires contravention of the two aspects of the standard - ie

that the broadcaster was "a party to any arrangement or contract" to the situation

where the incidental liquor promotion was "a contrived part of the programme". On

this occasion, the Authority unhesitatingly decided that the shots of Frank Bunce re-

entering a bar and being served with a glass of beer were obviously contrived.

When the definition of the first part has arisen in earlier complaints, GOAL has

stressed the word "arrangement" while TVNZ has espoused the view that the word

"contract" involves some legally binding obligation. In ruling on this dispute, the

Authority has in the past accepted that "arrangement" involves more than an

agreement. In view of the reference in the standard to a contract (albeit unwritten), the

Authority has accepted that it implies a payment of some kind (see decision No:

22/94).

TVNZ has denied that it was a party to any arrangement with Frank Bunce which

involved payment. Accordingly, the Authority decided that the broadcast had not

breached standard A3.a of the Programme Standards.

For the reasons given above, a majority of the Authority declines to uphold the

complaint that the broadcast of Body and Soul by Television New Zealand on 15

July breached standard A1 of the Programme Standards for the Promotion of

Liquor. It unanimously declines to uphold the complaint under standard A3.a

With regard to the action taken, the Authority noted the circumstances surrounding

the breach. TVNZ reported that it had been caught by surprise by what it described

as a "serious infringement". The breach occurred during a weekly magazine

programme which deals with healthy lifestyles and on this occasion featured an All

Black - a hero of the young. The Authority also shared GOAL's reaction when it

questioned whether programmes from independent production houses were

adequately checked before being screened. This inadequacy, in the Authority's

opinion, placed responsibility for the breach squarely on the broadcaster.

As a blatant, serious and, indeed, an astonishing breach of the standards had occurred –

ie a famous All Black and hero of the young entering a bar while the presenter

described water as the wrong drink and beer as the right drink for him in a programme

focussing on healthy lifestyles – the Authority decided that it was an appropriate

occasion on which to impose an order on the broadcaster requiring the broadcast of an

explanation and correction.

For these reasons, the Authority upholds the complaint that the action taken by

Television New Zealand Ltd, having upheld the complaint about the broadcast

of Body and Soul on 15 July 1994, was insufficient.

The Authority decided to impose the following order. As Body and Soul is not at

present being broadcast, the Authority decided that the broadcast should be included

on Really Living which is another locally produced magazine programme dealing with

healthy lifestyles.

Order

Pursuant to s.13(1) of the Broadcasting Act 1989, the Authority orders

Television New Zealand Ltd to broadcast a brief summary of this decision and

an apology, approved by the Authority, arising from complaints concerning an

item on broadcast on 15 July 1994. The statement shall be

broadcast during a Really Living programme within one month of this decision .

In addition, the Authority again expresses its serious concern that in recent weeks

broadcasts involving leading All Black administrators and players have been blatantly

in breach of the Codes. The Voluntary Sports Code was introduced in April 1993 and

the fact that the responsibilities under it have either not been drawn to the attention of

these players and administrators after a period of eighteen months or they have chosen

to ignore it, must place the efficacy of the Code in serious jeopardy.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
20 October 1994

Appendix 1

GOAL's Complaint to Television New Zealand Limited – 16 July 1994

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

Turner, complained to Television New Zealand Ltd about part of the Body and Soul

programme broadcast on TV One at 9.05pm on 15 July 1994.

The segment had featured All Black Frank Bunce and began by showing Mr Bunce

twice entering a bar. The first time he asked for water but on the second occasion he

asked for what the presenter described as the "right drink". He was given a glass of

beer.

Later in the programme Mr Bunce was shown wearing a shirt carrying prominent

advertising for Lion Red beer.

As the supply of the glass of beer was obviously contrived, GOAL argued that that

segment breached standard A3.a of the Programme Standards for the Promotion of

Liquor. The appearances of the shirt, he maintained was a breach of standard A3.c

while the number of the shirt's appearances amounted to saturation in contravention

of standard A1.

In a second letter dated 18 July, Mr Turner contended that the entire broadcast

involved an additional breach of standard A3.a should Mr Bunce have been paid for

taking part in the programme.

TVNZ's Response to the Formal Complaint – 1 August 1994

TVNZ advised Mr Turner of GOAL of its Complaints Committee's decision and

began by noting that the standards accepted that incidental promotion occurred in

situations over which the broadcaster had little control. In these situations the

broadcaster's responsibility was to minimise the exposure to the best of its ability.

Where the broadcaster had control, TVNZ continued, it was required to follow the

standards in spirit as well as by the letter.

TVNZ then said it upheld the aspect of the complaint that the broadcast had breached

standard A3.c and commented:

There was clear evidence that in this case TVNZ (as broadcaster) had not taken

sufficient steps to ensure that the incidental promotion of liquor was

minimised. The committee felt that, as the producer had control of the

situation, he should not have allowed the reference to the "real drink", and he

should have insisted that Mr Bunce wear something other than the shirt

bearing the "Lion Red" logo.

The breach of the codes has caught TVNZ by surprise. We believe that on the

whole we are successfully curbing the incidental promotion of liquor in areas

such as sports and news, where it is most likely to occur. That it should

become an issue on a health and lifestyle programme such as "Body and Soul"

was quite unexpected.

The executive producer of "Body and Soul" has already been advised of the

breach and in a facsimile to me received today he says:

"Firstly, apologies for having drawn the complaint in the first place.

Secondly, please accept my assurance that the Programme Standards

concerning the Promotion of Liquor will be drawn to the attention of

our reporters and producers and we will do our utmost to ensure that

there is no recurrence of the problem."

TVNZ declined to uphold any other aspect of the complaint. The saturation

prohibition had not been transgressed as segments containing incidental liquor

promotion were interspersed with a great deal of other material. As Mr Bunce had

received no payment for his appearance, TVNZ added, A3.a had not been

contravened.

GOAL's Complaint to the Broadcasting Standards Authority – 4 August 1994

Dissatisfied that the complaint had not been upheld in full, Mr Turner on GOAL's

behalf referred it to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

With regard to the alleged breach of standard A3.a, Mr Turner pointed to the phrase in

the standard "contract or arrangement" - and maintained accordingly that the argument

that the fact that Mr Bunce was not paid was irrelevant. He continued:

The camera team did not happen upon Mr Bunce in the bar by chance; there

was clearly an arrangement that the crew and Mr Bunce would be at the bar

simultaneously.

He also insisted that the saturation prohibition in standard A1 had been breached

because of the accolade bestowed on the beer near the beginning of the item and the

subsequent visuals of the advertisement on Mr Bunce's shirt.

TVNZ's Response to the Broadcasting Standards Authority – 5 September 1994

As is its practice, on 8 August the Authority sought the broadcaster's response to the

referral.

Beginning by pointing out that the complaint had been upheld as a "serious

infringement" of standards A3 and A3.c, TVNZ repeated that Mr Bunce had not been

paid for his appearance and added that TVNZ was not a party to any arrangement

involving the assessment of Mr Bunce's fitness. It concluded:

We are strongly of the view that the complainant's interpretation of the

standard is incorrect. Being a party to a contract or arrangement clearly

implies some form of enforceable agreement with legal consideration.

As that did not apply in the current situation, it declined to uphold the standard A3.a

aspect of the complaint.

TVNZ also repeated its contention that the spoken and visual references to Lion Red

beer did not amount to saturation in contravention of standard A1.

GOAL'S Final Comment to the Authority – 12 September 1994

When asked to comment briefly on TVNZ's reply, on GOAL's behalf Mr Turner

acknowledged:

The resolution of part of this complaint turns largely upon the meaning of the

word "arrangement" in A3.a. I continue to believe that whereas the word

"contract" has financial connotations these connotations do not apply to the

word "arrangement".

He maintained that TVNZ had "arranged" to meet Mr Bunce in the hotel to film part

of the item.

Although he did not want to comment further on the saturation (standard A1) aspect

of the complaint, Mr Turner stressed:

I believe that the Authority should be concerned about the admission by

TVNZ that "The breach of the codes has caught TVNZ by surprise". (Letter

to GOAL dated 1 August 1994).

The inference that must be taken from this statement is that programmes

commissioned from independent production houses go to air without being

checked by TVNZ to ensure that they comply with the rules and standards

Appendix II

Alcohol Healthwatch's Complaint to Television New Zealand Limited – 19 July

1994

The Heath Promotion Adviser with Alcohol Healthwatch, Mrs Cherry Morgan,

complained to Television New Zealand Ltd about part of the Body and Soul.

programme broadcast Television One at 9.05pm on 15 July 1994.

The segment had featured All Black Frank Bunce and began by showing Mr Bunce

twice entering a bar. The first time he asked for water but on the second occasion he

asked for what the presenter described as the "right drink". He was given a glass of

beer.

Later in the programme Mr Bunce – "an All Black hero" – was shown wearing a shirt

carrying prominent advertising for Lion Red beer.

As the supply of the glass of beer was obviously contrived, Alcohol Healthwatch

argued that that segment breached A3.a of the Programme Standards for the Promotion

of Liquor. The appearances of the shirt, he maintained was a breach of standard A3.c

while the number of the shirt's appearances amounted to saturation in contravention

of standard A1. The complaint observed:

It was totally unnecessary and avoidable for him to wear a singlet with

prominent liquor logos.

Particular concern was expressed about the level of Lion promotions in view of the

fact that Mr Bunce worked for Lion Breweries.

TVNZ's Response to the Formal Complaint – 1 August 1994

TVNZ advised Ms Morgan of Alcohol Healthwatch of its Complaints Committee's

decision which was similar to the report to GOAL (see Appendix I).

Alcohol Healthwatch's Complaint to the Broadcasting Standards Authority –
19 August 1994

Dissatisfied with TVNZ's action having upheld what it accepted as a serious

infringement of the standards, Ms Anna Radford on Alcohol Healthwatch's behalf

referred that matter to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act.

Ms Radford wrote:

... we are deeply concerned that, beyond apologising to Alcohol Healthwatch,

there has been no sanction for this breach. This in effect makes a mockery of

the codes governing broadcast alcohol advertising. Unless there are meaningful

sanctions against broadcasters who breach the codes – ... – [they] will be seen

as little more than a paper tiger.

TVNZ's Reply to the Authority – 14 September 1994

TVNZ declined to comment further on the referral to the Authority.

Alcohol Healthwatch's Final Comment to the Authority – 19 September 1994

Ms Radford advised that Alcohol Healthwatch also did not want to comment further.