BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1C) of the Broadcasting Act 1989
Promo for Friday Night of Comedy – contained footage from programme episodes that had already screened – allegedly in breach of accuracy and responsible programming standards

Findings
Standard 5 (accuracy) – comedy promo not a factual programme to which the accuracy standard applies – not upheld

Standard 8 (responsible programming) – promo was generic and promoted programme series, as opposed to specific upcoming episodes – promo did not deceive or disadvantage viewers as envisaged by the standard – not upheld

This headnote does not form part of the decision.

Introduction

[1]  A promo for Friday Night of Comedy highlighted multiple programmes that were scheduled to screen that evening, and contained footage from the different programme series. The promo was broadcast on TV One at about 6.20pm on 24 August 2012.

[2]  Paul Feenstra made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the promo was inaccurate and misleading because it contained footage from episodes that had already screened.

[3]  Having not received a response from the broadcaster within the 20 working day statutory timeframe, Mr Feenstra referred his complaint to this Authority.¹

[4]  The issue is whether the promo breached standards of accuracy (Standard 5) and responsible programming (Standard 8) as outlined in the Free-to-Air Television Code of Broadcasting Practice.

[5]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Does the accuracy standard apply?

[6]  The accuracy standard (Standard 5) only applies to news, current affairs and factual programmes.

[7]  This promo was not a news or current affairs programme, so the question is whether it was a “factual programme”. A “factual programme” has been defined by the Authority as one which presents itself, and is reasonably understood by the audience, to be an authoritative source of factual information.² This category typically includes, for example, documentaries, consumer affairs programmes, and reality television series, which make factual statements.³

[8]  We are satisfied that this promo for TV One’s Friday Night of Comedy was not such a programme. The Authority has previously found that a promo for a line-up of comedy programmes did not fit within the categories identified in Standard 5, and therefore the accuracy standard did not apply.⁴

[9]  We understand that Mr Feenstra objects to this practice of “generic” promotions of programme series. His complaint does not, however, come within broadcasting standards as they have been interpreted and applied in relation to accuracy.

[10]  We therefore decline to uphold this part of the complaint.

Did the promo breach the responsible programming standard?

[11]  The responsible programming standard (Standard 8) is primarily aimed at ensuring that programmes are correctly classified and screened in appropriate timeslots. Broadcasters must also ensure that programmes do not deceive or disadvantage viewers.

[12]  There is nothing to suggest that the promo was incorrectly classified or screened in an inappropriate time-slot. Mr Feenstra’s argument is essentially that viewers would have been misled or “deceived” because the clips from the different programme series in the promo were allegedly from episodes that had already screened, and they would have watched the line-up expecting to see those particular clips.

[13]  We agree with TVNZ that the promo was clearly promoting TV One’s Friday night programme line-up, as opposed to the storylines and content of specific episodes. It contained the following two statements:

• “Friday night is guaranteed to make you laugh, and laugh, and laugh.”
• “Friday’s night of comedy, starting with Kath and Kim, at 8.30 tonight on One.” (our emphasis)

[14]  The promo contained clips from each of the four programmes promoted, and referred to “tonight”. The scenes shown were in our view intended to be indicative of the type of comedy rather than an explicit reference to what would be shown in the episodes on that particular Friday. The first part of both statements was clearly generic and referred to “Friday night”, indicating this was a weekly line-up.

[15]  Weekly line-ups of programmes are now commonplace, which screen a number of programmes in the same genre in one evening, and which are targeted at a niche audience that enjoys that type of programme. It is also common to see a “generic” promo for a programme series, for example, a promo might advertise a series as screening on “Mondays at 8.30pm on TV One”. Such a promo would obviously contain footage from episodes across the whole series, rather than purporting to represent a particular upcoming episode.

[16]  These types of promotions and pre-publicity have become a common feature of television, and we think that most members of the audience would be alert to this. We think it unlikely that they would have made a viewing choice based solely on the specific clips shown in this promo. The promo gave a flavour of the programmes being promoted, and an idea of the style of comedy to be expected. Regular viewers would likely watch the programmes regardless, while viewers unfamiliar with the series might choose to watch and see whether they enjoyed them and would like to continue watching week after week.

[17]  For these reasons, we disagree that viewers would have been “deceived” in the manner alleged. We do not believe that TVNZ was intentionally “deceiving” or “disadvantaging” viewers as envisaged by the responsible programming standard. What exactly this part of Standard 8 was designed to protect against is unclear and has not been specifically considered or defined by the Authority. We think it may have been adapted from an old standard which required broadcasters “to avoid the use of any deceptive programme practice in the presentation of programmes which takes advantage of the confidence viewers have in the integrity of broadcasting”.⁵ That standard was applied in instances where, for example, interviews or programme material was edited in a manner that amounted to a “significant fabrication of events” and therefore misled viewers.⁶ This promo could not reasonably be said to be in the same category.

[18]  In any case, the alleged harm to viewers, in believing the particular clips shown in this promo would be broadcast on this particular Friday, was minimal, and did not outweigh TVNZ’s right to free speech and to promote these programmes in the way it wanted. How broadcasters choose to promote programmes or series is in our view an editorial decision which they are entitled to make.

[19]  Accordingly, we decline to uphold the complaint under Standard 8.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
2 April 2013

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1           Paul Feenstra’s formal complaint – 24 and 27 August 2012

2          Mr Feenstra’s referral to the Authority – 4 October 2012

3          Correspondence between Mr Feenstra and TVNZ – 7, 8 and 13 November 2012

4          Mr Feenstra’s further submissions – 27 November 2012

5          TVNZ’s response to the Authority – 22 January 2013

6          Mr Feenstra’s final comment – 23 January 2013

7          TVNZ’s final comment – 24 January 2013

¹See section 8(1C) of the Broadcasting Act 1989.

²Accident Compensation Corporation and Television New Zealand Ltd, Decision No. 2006-126

³See, for example, Williams and Wilkinson and TVWorks Ltd, Decision No. 2009-113; Evison and Television New Zealand Ltd, Decision No. 2009-033; and New Zealand Dietetic Association and TVWorks Ltd, Decision No. 2008-140.

⁴Harrison and Television New Zealand Ltd, Decision No. 2009-047

⁵Previously Standard G7

⁶See, for example, Hon Richard Prebble MP and Television New Zealand Ltd, Decision No. 2000-167