BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

Schwabe and Television New Zealand Ltd - 2002-065, 2002-066

Members
  • P Cartwright (Chair)
  • B Hayward
  • R Bryant
  • J H McGregor
Dated
Complainant
  • Paul Schwabe
Number
2002-065–66
Channel/Station
TV One

Complaint
Our World: The Farm that Time Forgot – Captain’s Log commercial break in each programme included a Toyota bugger advertisement – programme presentation – offensive language

Findings
Section 4(1)(a) and standard G2 – conjunction – advertisements in context – no uphold

Standard G7 – no technical deception – no uphold

Standards G8 and G12 – not unsuitable at 8.40pm – no uphold

This headnote does not form part of the decision.


Summary

[1] An episode of Our World entitled The Farm that Time Forgot was broadcast by TV One starting at 8.05pm on Saturday 28 April 2001. During a commercial break at about 8.40pm, a Toyota advertisement containing the word "bugger" was broadcast.

[2] Paul Schwabe complained to Television New Zealand Ltd, the broadcaster, that the broadcast of an advertisement containing offensive language during the presentation of a programme made for family viewing was a breach of good taste.

[3] In response, TVNZ explained that the Advertising Standards Complaints Board, not the Broadcasting Standards Authority, had jurisdiction to deal with complaints about advertisements.

[4] Dissatisfied that TVNZ did not take responsibility for programme presentation, Mr Schwabe referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

[5] An episode of Captain’s Log, a series which followed the exploration of New Zealand by Captain James Cook, was broadcast on TV One at 8.30pm on 19 November 2001. During a commercial break at about 8.40pm, a Toyota advertisement containing the word "bugger" was broadcast.

[6] Mr Schwabe made a similar complaint to that about Our World, and also argued that it contravened the standards relating to the protection of children.

[7] TVNZ responded as it had done to the earlier complaint and, for a similar reason, Mr Schwabe referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

[8] Following the Wellington High Court decision in Watson v TVNZ PDF369.72 KB (AP 99/01, 25 September 2001) which ruled that the conjunction of advertisements and programmes could raise matters of broadcasting standards, the Authority asked TVNZ to respond to the matters raised by Mr Schwabe.

For the reasons below, the Authority declines to uphold the complaints.

Decision

[9] The members of the Authority have viewed the episode of Our World broadcast on 28 April 2001. The episode forwarded by TVNZ contained no commercial breaks. The members have read TV One’s advertising log for Our World which records that the 45 seconds Toyota advertisement was broadcast at 8.40pm as the first advertisement of a 3 minute advertising break. TVNZ was unable to supply a copy of that Toyota advertisement as it was no longer being broadcast. The members have viewed the advertisement nevertheless, as a copy was held by the Authority as a result of determining a complaint about a news item broadcast in March 1999 which featured the advertisement (No: 1999-102).

[10] The members have also viewed the episode of Captain’s Log broadcast on 19 November 2001. The episode forwarded by TVNZ again contained no commercial breaks. However, TVNZ also forwarded a copy of the advertising log for Captain’s Log and a copy of a 50 second Toyota advertisement which was the third advertisement screened during the 3 minute advertising break beginning at 8.40pm.

[11] The members have read the correspondence which is listed in the Appendices. The Authority determines the complaints without a formal hearing.

The Programmes

[12] Our World, rated G and broadcast at 8.05pm on TV One on Saturday 28 April, was described in The Listener:

A BBC documentary that looks at the dramatic transformation of the British countryside where forests once stretched as far as the eye could see.

[13] The Captain’s Log, also rated G, was broadcast at 8.30pm on TV One on 19 November and, The Listener recorded:

Peter Elliott retraces Captain Cook’s voyage of discovery in 1769. Tonight: Elliott continues his circumnavigation of New Zealand, crossing the infamous Kaipara bar before heading to Queen Charlotte Sound on board the 100-year old Te Aroha.

The Complaints

[14] Arguing that Our World was a "quality BBC" documentary made for family viewing, Mr Schwabe complained about the broadcast during a commercial break of a "disgusting vehicle advertisement" which used the word "bugger" on a number of occasions. He maintained that it breached the requirement for broadcasters in s.4(1)(a) of the Broadcasting Act 1989 to maintain standards consistent with the observance of good taste and decency, during the presentation of programmes.

[15] In his letter, Mr Schwabe stated that the complaint was made to TVNZ as the responsible broadcaster, and asked that it not be passed on to the Advertising Standards Complaints Board.

[16] Mr Schwabe noted that Captain’s Log "was excellent viewing for children", but was interrupted by "an offensive clip containing multiple gratuitous utterances of the ‘bugger’ word variations".

[17] The broadcast, Mr Schwabe maintained, breached s.4(1)(a) of the Broadcasting Act, and standards G2, G7, G8 and G12 of the Television Code of Broadcasting Practice.

The Broadcaster’s Responses to the Complainant

[18] In response to both complaints, TVNZ explained that as they referred to an advertisement, the Broadcasting Act directed that the complaint be made to the Advertising Standards Complaints Board.

The Referrals to the Broadcasting Standards Authority

[19] On the basis that TVNZ was responsible for a programme’s presentation, Mr Schwabe referred both complaints to the Broadcasting Standards Authority. A programme’s presentation, he contended, included not only its introduction and conclusion, but also interruptions for promos, weather forecasts and advertisements.

The Broadcaster’s Responses to the Authority

[20] TVNZ advised that both of Mr Schwabe’s complaints referred to paid-for Toyota advertisements, and that formal complaints about advertisements were the responsibility of the Advertising Standards Complaints Board.

The Authority’s Action

[21] At the time of the correspondence in regard to the Our World complaint, the jurisdiction for the presentation of programmes, including advertisements, was the issue in an appeal to the High Court against Authority Decision No: 2001-023. Further action was deferred pending the outcome of that matter.

[22] In its decision on the appeal, Watson v TVNZ PDF369.72 KB (AP 99/01, 25 September 2001), the High Court ruled that the conjunction of advertisements and programmes is a matter that potentially affects the broadcasting standard of good taste and decency. In view of this judgment, the Authority advised TVNZ that it had accepted both complaints and sought comments on the substance of the complaints.

The Broadcaster’s Second Response to the Authority

[23] TVNZ argued that Mr Schwabe’s complaints referred to the content of an advertising programme and, under s.8(2) of the Act, the Authority had no jurisdiction. Moreover, TVNZ continued, that as it had not made a decision on the complaints, there was no decision which could be referred to the Authority. TVNZ maintained that it had followed the correct procedure by referring the complaints to the Advertising Standards Complaints Board.

[24] The Authority informed TVNZ that neither submission was accepted because it was required to examine the conjunction of programmes and advertisements. At the Authority’s request, TVNZ provided the logs showing the placement of the advertising material during the two programmes.

The Complainant’s Final Comment

[25] Mr Schwabe expressed pleasure that the Authority had some jurisdiction to deal with his complaints. However, he expressed a lack of confidence in the Authority’s current membership as it had not accepted that the use of "bugger" language was contrary to the Broadcasting Act.

The Standards

[26] The Authority has considered the complaints under the standards nominated by Mr Schwabe. Section 4(1)(a) of the Act reads:

4 (1) Under the Broadcasting Act 1989, each broadcaster is responsible for maintaining in its programmes and their presentation standards which are consistent with:

a) The observance of good taste and decency;

[27] Standards G2, G7, G8 and G12 require broadcasters:

G2 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.

G7 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.

G8 To abide by the classification codes and their appropriate time bands as outlined in the agreed criteria for programme classifications.

G12 To be mindful of the effect any programme may have on children during their normally accepted viewing times.

The Authority's Determination

[28] An episode of Our World: The Farm that Time Forgot was broadcast at 8.05pm on Saturday 28 April 2001. An episode of Captain’s Log was broadcast at 8.30pm on 19 November 2001. In a commercial break during each programme, at about 8.40pm, an advertisement for Toyota was screened. Although different advertisements, each one used the word "bugger" on a number of occasions. Mr Schwabe complained that the use of this word during a programme designed for family viewing breached the requirement, during the presentation of programmes, to maintain standards consistent with the observance of good taste and decency.

[29] In regard to the screening of the advertisement during Captain’s Log, Mr Schwabe listed a number of other standards which, he believed, were also contravened.

[30] The members of the Authority have viewed the programmes without commercial breaks, and they have also viewed the advertisements. Moreover, they have read the advertising log which records all the advertisements screened during each of the programmes named, including the regional breakouts.

[31] The advertising log discloses that a 3 minute commercial break, beginning at 8.40pm during Our World on 28 April, included 6 commercials, all shown nation-wide. The first one was a 45 second Toyota ad. The log also records that the advertisement is not to be screened before 8.30pm.

[32] A 3 minute commercial break beginning at 8.40pm during Captain’s Log on TV One on 19 November included, as did the third of four advertisements shown nation-wide, a 50 second Toyota commercial. The final minute of the break contained regional commercials. The log records the Toyota advertisement as "AO".

[33] Taking into account Watson v TVNZ (supra), the Authority’s task is to determine whether the conjunction of advertisements and programmes breaches the standards. The Authority stresses that it is focussing on conjunction. It is not concerned whether the advertisements individually comply with advertising standards.

[34] TVNZ is a commercial broadcaster reliant on the income from commercials. The Authority notes that there are no restrictions about advertising at any time except when prohibited by the Broadcasting Act. The Act prohibits the broadcast of advertising programmes between 6.00am – noon on all Sunday mornings, and on certain specified days each year.

[35] Mr Schwabe complained about the conjunction of specific advertisements with the programmes during which the commercials were screened. Specifically, he expressed concern about the use of the word "bugger" during programmes rated G, and thus acceptable for family viewing.

[36] As noted above, the specific advertisements were screened in a commercial break which consisted of 6 advertisements, and the breaks were of 3 minute duration. The Toyota advertisements were not highlighted in any way.

[37] As for the use of the word "bugger" the Authority records that since January 2000, it has determined eight complaints about its use in various television and radio broadcasts. None has been upheld. The Authority found that the term had been used on each occasion in a colloquial sense, and it had not encompassed a reference to anal intercourse or bestiality. It considers that the word, when used colloquially, is best described as mildly offensive. This approach is confirmed by the Authority’s research that "bugger" is regarded as the least offensive of 22 words respondents were asked to consider.

[38] When assessing a complaint of this nature, the Authority reiterates that it is not the content of the advertisements which are relevant, but the conjunction between the advertisements and the programmes. Generally, taking into account its Decisions on the use of the word "bugger" in broadcasts, the Authority finds nothing of concern to accepted norms of decency in taste and language arising out of the conjunction of the named programmes with the Toyota advertisements. It again notes that both advertisements were broadcast after the Adults Only watershed of 8.30pm. The Authority finds that standard G2 was not contravened on either occasion.

[39] In his complaint about the conjunction of Captain’s Log with a Toyota advertisement, Mr Schwabe also referred to standards G7, G8, and G12.

[40] The Authority applies standard G7 to deception which might occur following technical practices. It does not consider standard G7 relevant to the context of this complaint. As the advertisements were broadcast after 8.30pm, the Authority finds that standard G8 and G12 were not breached. Furthermore, the Authority notes that it has declined to uphold complaints about the use of the word "bugger" in news items and in programmes broadcast before 8.30pm, where its use has been neither assertive nor gratuitous.

[41] The Authority observes that to find a breach of broadcasting standards on this occasion would be to interpret the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

 

For the above reasons, the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

 

Peter Cartwright
Chair
23 May 2002

Appendix I

The following correspondence was received and considered by the Authority when it determined the complaint about the conjunction of Our World with a Toyota advertisement:

  1. Paul Schwabe’s Complaint to Television New Zealand Ltd – 2 May 2001
  2. TVNZ’s Response to Mr Schwabe – 4 May 2001
  3. Mr Schwabe’s Referral to the Broadcasting Standards Authority – 28 May 2001
  4. TVNZ’s Response to the Authority – 5 June 2001
  5. Mr Schwabe’s Final Comment – 18 June 2001
  6. TVNZ’s Second Response to the Authority – 7 February 2002
  7. TVNZ’s Response to the Authority containing tape of Our World and advertising log –
    21 March 2002
  8. Mr Schwabe’s Second Final Comment – 13 April 2002

Appendix II

The following correspondence was received and considered by the Authority when it determined the complaint about the conjunction of Captain’s Log with a Toyota advertisement:

  1. Paul Schwabe’s Complaint to Television New Zealand Ltd – 20 November 2001
  2. TVNZ’s Response to Mr Schwabe – 26 November 2001
  3. Mr Schwabe’s Referral to the Broadcasting Standards Authority – 27 November 2001
  4. TVNZ’s Response to the Authority – 30 November 2001
  5. TVNZ’s Second Response to the Authority – 7 February 2002
  6. TVNZ’s Response to the Authority containing tape of Our World and advertising log –
    21 March 2002
  7. Mr Schwabe’s Final Comment – 13 April 2002