BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Fitzpatrick and Television New Zealand - 2008-027

  • Joanne Morris (Chair)
  • Diane Musgrave
  • Tapu Misa
  • Paul France
  • Sheryll Fitzpatrick
Close Up
TV One

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – item about Advertising Standards Authority’s ruling against advertisement for Charlie’s Soda – studio discussion among four men about whether the decision was out of step with society and demonstrated a double standard between advertising and television programmes – allegedly unbalanced

Standard 4 (balance) – discussion was confined to one advertisement – did not discuss a controversial issue of public importance – not upheld

This headnote does not form part of the decision.


[1]   An item on Close Up, broadcast on TV One at 7pm on 31 January 2008, discussed the decision of the Advertising Standards Authority (ASA) that an advertisement for Charlie’s Soda was in breach of advertising standards. According to the item, the ASA ruled that the advertisement breached a standard which required advertisements not to use sexual content to promote an unrelated product.

[2]   The advertisement in question was shown near the beginning of the item. It was animated and involved the central character reminiscing about “the way things were”. The advertisement included two boys watching their female neighbour sunbathing nude. An image of the woman’s breasts (partially concealed by a fence) transitioned into an image of two lemons, which the boys then squeezed.

[3]   The main thrust of the discussion was whether rules for advertising were out of touch with society, and whether there was a double standard between television programmes and advertising. The Close Up presenter interviewed three people: Glenn Wiggs, the former CEO of the ASA, Marc Ellis, a director of Charlie’s, and Gavin Bradley, who had created the advertisement. According to the presenter, representatives of the current ASA had declined to comment.


[4]   Sheryll Fitzpatrick made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item breached the balance standard.

[5]   Ms Fitzpatrick maintained that the “discussion... which related to the portrayal of women as sexual objects... was held between four men”. She said that the discussion was around the use of sexual content – a naked woman in the case of the Charlie’s advertisement – to promote an unrelated product, “yet the presenters did not even consider it necessary or in the interest of balanced programming to include a woman in the debate”.

[6]   The complainant also said she took offence at the creator of the advertisement wearing a t-shirt which “gave a metaphorical finger to [the ASA]” by showing two lemons being squeezed “in the place where a woman’s breasts are”, as in the advertisement.

[7]   Ms Fitzpatrick concluded her complaint by saying she did not think that Close Up should have screened the advertisement, which had been found to breach advertising standards and removed from television.


[8]   TVNZ assessed the complaint under Standard 4 of the Free-to-Air Television Code of Broadcasting Practice. It provides:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Broadcaster's Response to the Complainant

[9]   TVNZ maintained that the advertisement had been shown to provide a framework for the discussion. It said that the debate would have been irrelevant and futile if viewers were not aware of the content of the advertisement.

[10]   TVNZ argued that significant points of view on the issue were included in the item. It said that the people who took part in the discussion were chosen not because of their gender but because of their roles in the advertising industry, and that they were the appropriate people to include in the discussion, particularly given that the ASA had declined to take part.

[11]   The broadcaster emphasised that the debate was not about sexism in advertising (although that was the reason for the ASA’s decision), but rather was about the differences in standards and expectations between advertising and the programmes in which the advertising may screen. It said Glenn Wiggs had pointed out that viewer expectations of what was acceptable in advertising were very different from their expectations of television programmes.

[12]   Finally, TVNZ noted that the t-shirt worn by Gavin Bradley featured a still from the advertisement in question. It argued that the content of the t-shirt was acceptable in the context of a current affairs programme aimed at mature viewers and broadcast after 7pm.

[13]   TVNZ declined to uphold the complaint.

Referral to the Authority

[14]   Dissatisfied with TVNZ’s response, Ms Fitzpatrick referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[15]   The complainant based her referral on guideline 4a, which requires programmes that deal with political matters, current affairs and questions of a controversial nature to be balanced and impartial.

[16]   Ms Fitzpatrick accepted TVNZ’s explanation for the advertisement being shown during the item. However, she still felt that Gavin Bradley’s t-shirt which represented part of the advertisement was offensive.

[17]   Ms Fitzpatrick also maintained that in the interests of balance a feminist perspective should have been included because “the debate was sparked in essence by the inappropriate use of female images”. She argued that by not including a feminist viewpoint, the item breached standards of fairness and balance.

Authority's Determination

[18]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[19]   Standard 4 requires broadcasters to provide balance when discussing controversial issues of public importance. The item complained about was a studio discussion about the ASA’s decision regarding the Charlie’s advertisement. The discussion was confined to whether this particular decision by the ASA was out of step with society, or indicated the existence of a double standard between advertising and television programmes. The programme did not purport to be a comprehensive overview of ASA decisions and whether the ASA was making decisions which were out of line with the views of society. In the Authority’s view, because the programme focused solely on one ASA decision, it did not amount to a discussion of a controversial issue of public importance as envisaged by Standard 4.  

[20]   Accordingly the balance standard did not apply, and the Authority declines to uphold the complaint that Standard 4 was breached.


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

Signed for and on behalf of the Authority


Joanne Morris
4 July 2008


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

1.            Sheryll Fitzpatrick’s formal complaint – 30 January 2008
2.           TVNZ’s response to the complaint – 3 March 2008
3.           Ms Fitzpatrick’s referral to the Authority – 11 March 2008
4.           TVNZ’s response to the Authority – 7 May 2008