O’Neill and Television New Zealand Ltd - 2012-131
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Brendan O’Neill
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Breakfast – presenter referred to Tip Top ice cream competition and informed viewers how to enter – allegedly in breach of responsible programming and children’s interests standards
Standard 8 (responsible programming) – segment did not threaten objectives behind “responsible programming” – promotions of this nature are now commonplace – Broadcasting Act and standards as written do not contemplate this type of segment or give authority to address these issues – not upheld
Standard 9 (children’s interests) – broadcast was not aimed at children and would not have disturbed or alarmed any children who were watching, in the manner envisaged by the standard – not upheld
This headnote does not form part of the decision.
 During a segment on Breakfast, the presenter referred to a ‘Feel Tip Top Giveaway’ competition. He said, “I’m getting out and about with a big blue truck and loads of frozen ice cream treats to help Tip Top hand deliver ice cream throughout the country”. He advised viewers how to enter the competition. The programme was broadcast on TV One from 6am to 9am on Friday 26 October 2012.
 Brendan O’Neill made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the Breakfast programme was covertly involved in advertising Tip Top ice cream, while “camouflaging it as a valid news/information item”.
 The issue is whether the broadcast breached standards relating to responsible programming (Standard 8) and children’s interests (Standard 9) as outlined in the Free-to-Air Television Code of Broadcasting Practice.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Did the broadcast breach the responsible programming standard?
 In today’s world of commercial television, promotions such as this are increasingly commonplace, where products are placed, promoted, or referred to within magazine-style programmes as part of a competition or for another purpose. We accept that these factors amount to a form of branding or marketing. Where they cross the line from being programme material or a promotion to becoming an advertisement is increasingly blurred.
 The Broadcasting Act 1989 was clearly not drafted with these sorts of developments in mind. We live in an age of branding, sponsorship and product placement which was not anticipated or envisaged. Our responsibility is to assess the alleged breach against the wording of the standard itself and its objectives.
 The responsible programming standard (Standard 8) is primarily aimed at ensuring that programmes are correctly classified and screened in appropriate timeslots. It also requires that broadcasters ensure programmes do not deceive or disadvantage the viewer. The standard has a number of associated guidelines, which do not, in themselves, impose requirements on a broadcaster, but are included as general guidance to assist in interpreting and applying the standard.
 Mr O’Neill argued that the broadcast was an advertisement for Tip Top ice cream and was not clearly identified as such. He referred to guidelines 8d and 8f of the responsible programming standard, which provide:
8d Advertisements and infomercials should be clearly distinguishable from other programme material.
8f Broadcasters should not use the process known as “subliminal perception” or any other technique which attempts to convey information to the viewer by transmitting messages below or near the threshold of normal awareness.
 TVNZ responded that Breakfast was an unclassified news and current affairs programme, and it considered that the content subject to complaint was consistent with audience expectations of the programme and its timeslot.
 The origins and purpose of guideline 8d are not clear. We think it may have been designed to cover infomercials which occupy whole programme slots, and which these days are preceded by a disclaimer that they are paid advertisements. In the past the Authority has also considered situations where, for example, a company has a sponsored slot as part of a weekly programme and the company assumes editorial control.1
 Here, the segment contained images of the Tip Top logo, pictures of ice creams, and references to ice cream products. We accept that this was a form of branding and marketing and a tool for promotion, and that the competition was secondary. Nevertheless, we do not believe that this type of segment, in which a programme is linked with a competition or in some other way linked to a brand, is properly covered or envisaged by the standard. If we think about the objectives behind “responsible programming”, including adequately informing audiences about programmes, and ensuring they are not deceived or disadvantaged, we are not convinced that this broadcast jeopardised broadcasting standards.
 This is largely because the promotion of Tip Top was, in our view, so overt that viewers would have recognised it. The reality is that these types of competitions have become a common feature of television and radio broadcasts, and most members of the audience would be alert to this. Breakfast was an unclassified news and current affairs programme targeted at an adult audience, who could reasonably be expected to have the capacity to recognise the promotion and make their own decision whether to support the brand. In this respect, they would not have been deceived or disadvantaged as envisaged by the responsible programming standard.
 Nor did the content amount to “subliminal perception” involving the use of split-second frames or other techniques designed to transmit messages below or near the threshold of consciousness (guideline 8f).
 We understand and acknowledge the complainant’s concerns about the effect of the segment, in particular on obesity and diabetes among children, but in our opinion this is not an issue of broadcasting standards or within our jurisdiction. It is more an issue of broader policy. If this type of promotion is seen to be socially unacceptable, then it will be up to legislators to address this issue in the future if they deem it necessary and appropriate.
 For these reasons, we decline to uphold the complaint that the broadcast breached Standard 8.
Did the broadcaster adequately consider children’s interests?
 The children’s interests standard (Standard 9) requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm. Guideline 9a states that broadcasters should be mindful of the effect any programme or promo may have on children during these times, and avoid screening material that would disturb or alarm them.
 While we understand the complainant’s concerns about the link between the segment and a brand of ice cream, and that at 7.40am children could have been watching, the programme was aimed at adults rather than children, and was not the sort of programme that children would typically be interested in. Children who were watching were not likely to be doing so unsupervised, and the segment did not contain anything that would have disturbed or alarmed child viewers in the manner envisaged by the standard.
 We acknowledge that Mr O’Neill has raised an issue which is worthy of broad discussion. His complaint does not, however, come within broadcasting standards as they have been interpreted and applied in relation to children.
 Accordingly, we decline to uphold the complaint that the broadcast breached Standard 9.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
13 March 2013
The correspondence listed below was received and considered by the Authority when it determined this complaint:
- Brendan O’Neill’s formal complaint – 30 October 2012
- TVNZ’s response to the complaint – 27 November 2012
- Mr O’Neill’s referral to the Authority – 27 November 2012
- TVNZ’s response to the Authority – 21 January 2013
1See Frewen and Television New Zealand Ltd, Decision No. 2004-053