BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Racing – Live coverage of Lion Brown Wellington Cup at Trentham – arch behind presenters bearing words Lion Brown – incidental liquor promotion – considerable liquor signage – saturation of liquor promotion

Findings
Standard A1 – no saturation of liquor promotion – no uphold

Standard A3 – repeated visuals of arch – incidental liquor promotion not minimised – uphold

Order
Costs to Crown of $750

This headnote does not form part of the decision.

Summary

[1] Live coverage of the Lion Brown Wellington Cup at Trentham was shown on TV One between 5.00–6.00pm on 25 January 2003. The coverage included comments from the presenters when, on a number of occasions, there was an arch bearing the words "Lion Brown" in the background.

[2] Cliff Turner complained to Television New Zealand Ltd, the broadcaster, that the footage of the arch amounted to the incidental promotion of liquor. Further, he complained that there were a great number of visual and verbal references to Lion Brown which amounted to the saturation of liquor promotion.

[3] In response, TVNZ pointed out that the coverage was provided by Trackside TV which broadcast horse and dog racing in New Zealand and Australia. It maintained that horses and personalities were the focus of the broadcast, and the coverage of the liquor promotion did not amount to saturation.

[4] Dissatisfied with TVNZ’s decision Mr Turner referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint that Standard A3 was breached in that the incidental promotion of liquor was not minimised.

Decision

[5] The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] Live coverage of the Lion Brown Wellington Cup at Trentham was shown on TV One between 5.00–6.00pm on 25 January 2003. The coverage included comments from the presenters when, on a number of occasions, there was an arch bearing the words "Lion Brown" in the background.

The Complaint

[7] Cliff Turner complained to TVNZ about the footage when, on at least 10 occasions, there was an arch bearing the words "Lion Brown" clearly visible in the background to the presenters. Pointing out that it would have been a simple matter to have asked the presenters to stand somewhere else, Mr Turner argued that the incidental promotion of liquor was not minimised as required by the standards.

[8] Mr Turner also said that there was a great deal of other incidental advertising for Lion Brown, both visual and verbal, and he contended that the incidental liquor advertising amounted to the saturation of liquor advertising in breach of the standards.

The Standards

[9] TVNZ assessed the complaint against the standards nominated by Mr Turner. Standards A1 and A3 of the Promotion of Liquor Code provides:

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

A3 Broadcasters will ensure that the incidental promotion of liquor is minimised.

The Broadcaster’s Response to the Complainant

[10] TVNZ advised that the pictures used in the item were supplied by Trackside TV, a channel which broadcast a free-to-air and digital service of horse and dog races in New Zealand and elsewhere. TVNZ wrote:

The [complaints] committee noted the several occasions in which the archway or horseshoe was visible behind the commentators. It was observed that television is a medium which depends on pictures and imagery and that in any major horse racing event the archway you describe (there was one at Riccarton as well) is a centrepiece of race day. It is through the archway that all winning horses are led, and it would be the dream of owners to see their Wellington Cup winner being brought through the archway garlanded in the famous rug of flowers.

Because of the central nature of the horseshoe the committee did not believe it was inappropriate that it should provide the backdrop when commentators were speaking to the camera. The committee believed that the horseshoe was never presented as more than a background image and at no point – not even when the winning horse was led through – was it the centre of attention. The focus was always either on the commentators or on the horses.

[11] TVNZ also noted that Lion Brown promotional material was seen, but maintained that the focus was on the horses and personalities. It referred to Guideline 8 of the Promotion of Liquor Code which in part reads:

Guideline 8

However, standard A3 is not intended to require the total exclusion of all incidental promotions when they are a normal feature of the situation being televised.

[12] That was the situation, TVNZ contended, which applied to the broadcast complained about. It argued that Standard A1 was not breached as although liquor promotions were visible from time to time, there was no saturation of liquor promotions. Standard A3 was not breached, TVNZ continued, as the liquor signage shown was a "normal feature of the situation being televised".

The Referral to the Broadcasting Standards Authority

[13] Dealing first with the appearances of the presenters with the Lion Brown arch in the background, Mr Turner said he counted 13 such instances and their total duration was six minutes. How, he asked, could TVNZ claim that the incidental advertising liquor was minimised.

[14] With reference to Guideline 8 cited by TVNZ, Mr Turner contended that the arch could not be described as a "normal part" of the presenters’ portrayal of events.

[15] Mr Turner also cited Guideline 2 which reads:

Guideline 2

As a general guideline, broadcasters will avoid an impression that liquor promotions dominate the viewing or listening period if no more than one brief liquor promotion including a name or association or a sponsorship credit (not exceeding six seconds), is broadcast every three minutes averaged over the viewing or listening period. A simultaneous visual and verbal mention will count as two mentions.

[16] The Guideline, he wrote, allowed 20 promotions per hour for a total duration of two minutes. As well as the item complained about containing 13 promotions which lasted six minutes, there were frequent references to "Lion Brown" which, Mr Turner contended, constituted saturation liquor promotion.

[17] Mr Turner did not accept TVNZ’s contention that the liquor promotions shown in the item, including the arch, were not the focus of any particular shot. He referred to the portrayal of the start of the race which included the starting stalls which carried "prominent advertising for Lion Brown". The shot, lasting 24 seconds, was not of horses and personalities. That particular shot, he added, was not of the actual start which he accepted was an essential part of the coverage of the race.

[18] As one of the presenters was employed by TVNZ, Mr Turner considered that he should have been familiar with the standards and, consequently, should have avoided having his conversation with the other presenters filmed with the Lion Brown arch in the background.

The Broadcaster’s Response to the Authority

[19] TVNZ noted that Guideline 2, upon which Mr Turner relied, had in the past become an issue where a liquor company or outlet had been the sponsor of the broadcast complained about. TVNZ regarded the specific durations covered in the Guideline as being references to sponsorship material.

[20] On this occasion, TVNZ argued, incidental liquor promotion, which was part of a "normal feature of the situation being televised", was quite different. A certain amount of signage around the ground at many sporting events, TVNZ continued, was a normal feature. It wrote:

When TVNZ assessed this complaint we experienced the same problem that the Authority will now have. As we watched the recording of the telecast we were looking for the Lion Brown material to which Mr Turner refers. And, of course, if you look for it, you find it. But having done that we tried to stand back and ask ourselves whether as far as the Saturday afternoon sports viewer was concerned this broadcast (to use the wording in guideline 2) created "the impression that liquor promotions dominated the viewing period". We concluded they did not. As we have indicated to Mr Turner the focus was always on what was being said, or on the horses.

[21] Turning to the view of the starting gates which Mr Turner had referred to specifically, TVNZ said that the shot was part of the Trackside TV coverage over which it had no control. Furthermore, the location of the start of any horse race, especially at Trentham, involved the use of a long zoom lens which provided an attractive and an unusual perspective.

The Complainant’s Final Comment

[22] Mr Turner acknowledged that in the past he had referred to Guideline 2 in complaints about sponsorship promotions but, he added, that did not mean that other forms of liquor promotion were excluded from the guideline. He considered that the broadcast breached Guideline 2 in view of the 13 shots of an arch bearing the words Lion Brown, the lengthy shot of the starting stalls, and many other liquor promotions.

[23] As Guideline 1 of the Standards expected broadcasters to comply with the spirit of code, Mr Turner maintained that, in view of the Lion Brown sign, TVNZ had not complied.

[24] In regard to Guideline 8, Mr Turner contended that it did not allow a broadcaster to screen liquor promotions in circumstances where they could be avoided. If the presenter had stood elsewhere, the promotion would not have been visible. In addition, he did not accept TVNZ’s explanation for the 24 second frontal shot of the starting stalls. Finally, he wrote:

TVNZ suggests that to be aware of the plethora of liquor promotions in the programme one had to "…look for it…". I maintain that one could not avoid its impact.

The Authority’s Determination

[25] Mr Turner complained about a one hour programme on TV One which involved the live coverage of the Lion Brown Wellington Cup from Trentham. While the visuals were provided by Trackside, the presentation was broadcast by TVNZ which was responsible for editorial control. Mr Turner contended, first, that the extent of the liquor coverage amounted to saturation in breach of Standard A1 of the Promotion of Liquor Programme Code, and second, that the incidental promotion of liquor was not minimised as required by Standard A3. Under Standard A3, he referred in particular to an arch bearing the words "Lion Brown" which was used as background for the commentators of the events portrayed. Mr Turner said that there were 13 shots of the arch with a total duration of some six minutes.

[26] TVNZ acknowledged that images of Lion Brown promotional material was seen, such as saddle cloths and other signage, but argued that the attention was always on horses and personalities.

[27] With reference to the archway, TVNZ pointed out that it was a centrepiece of race day as all the winning horses were led through it. In view of the "central nature of the horseshoe", TVNZ considered that it was not inappropriate that the archway was used as a back drop when the commentators were speaking to camera.

[28] The Authority agrees with TVNZ that the incidental liquor promotion did not constitute saturation which amounted to a breach of Standard A1. It accepts that various promotions were shown, for example on the saddle cloths and on the starting gates, were not unexpected in view of Lion Brown’s sponsorship of the race. Nevertheless, it considers that the focus of the coverage was on the horse races, not on those promotions.

[29] The Authority agrees with Mr Turner in regard to the complaints about the incidental promotion of liquor involved in the use of the archway as a backdrop for the presenters. The Authority accepts that the archway was important to the race being covered, but notes that the item’s regular use of the arch as a backdrop was at the broadcaster’s discretion. It considers that its use on 13 occasions during the hour-long programme, for over six minutes in duration, was excessive in view of the requirement in the Standard to minimise the incidental promotion of liquor.

[30] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision No. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion. For the reasons given in this decision, including in particular the repeated use of the arch as a backdrop, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of these complaints, including the nature of the complaints and the requirement in the standard to minimise the incidental promotion of liquor.

For the reasons above, the Authority upholds the complaint that the coverage of the Lion Brown Wellington Cup on TV One on 25 January 2003, broadcast by Television New Zealand Ltd, breached Standard A3 of the Promotion of Liquor Programme Code.

It declines to uphold any other aspect of the complaint.

[31] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[32] Mr Turner sought a "significant penalty", while TVNZ argued that an order was neither necessary nor appropriate. It submitted that the publication of the decision and the action of TVNZ’s Head of Sports in reminding all staff of their obligations under the Code was sufficient.

[33] Having considered the submissions, the Authority concludes that an Order which requires payment of costs to the Crown is appropriate. In imposing the following Order, the Authority has considered the provisions of the New Zealand Bill of Rights Act 1990, and is firmly of the opinion that the Order is reasonably and demonstrably justified in a free and democratic society.

Order

Pursuant to section 16(4) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to pay, within one month of the date of this decision, the sum of $750 by way of costs to the Crown.

The Authority draws the broadcaster’s attention to the requirements in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainant of the manner in which the Order has been complied with.

Signed for and on behalf of the Authority

Judy McGregor
Member
5 June 2003

Appendix

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

1. Cliff Turner’s Complaint to Television New Zealand Ltd – 27 January 2003
2. TVNZ’s Response to Mr Turner – 17 February 2003
3. Mr Turner’s Referral to the Broadcasting Standards Authority – 23 February 2003
4. TVNZ’s Response to the Authority – 5 March 2003
5. Mr Turner’s Final Comment – 12 March 2003
6. TVNZ’s Submission on an Order – 12 May 2003
7. Mr Turner’s Submission on an Order – 23 May 2003