BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
20/20 – item discussed Marc Ellis’s promotional stunt for his new business which involved discharging explosives on Rangitoto Island – allegedly in breach of law and order and fairness standards

Findings
Standard 2 (law and order) – not clear from the item that the stunt amounted to criminal activity – item did not encourage, promote, condone or glamorise criminal activity – not upheld

Standard 6 (fairness) – complainant did not identify which individuals or organisations were treated unfairly – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on 20/20, entitled “Guerrilla Marc[eting]”, broadcast on TV2 at 9.30pm on Thursday 15 November 2007, discussed the first major guerrilla marketing stunt that had taken place in New Zealand. Sports and television celebrity Marc Ellis and his business partners had carried out an elaborate promotional stunt for their new website, which involved staging a volcanic eruption by detonating 600 kilograms of explosives on top of Rangitoto Island.

[2]   The item briefly covered Mr Ellis’ previous participation in outrageous stunts throughout his career as a television personality, as well as the background of “guerrilla marketing”, including an example that had taken place in the United States.

[3]   Viewers were told that Mr Ellis and his partners had sought legal advice prior to the Rangitoto hoax in order to assess the risk of committing offences, and to mitigate those risks as well as any environmental effects. Mr Ellis said that they had carefully considered the risks involved, and with legal advice had come to the conclusion that “the risk is manageable”. The men reportedly obtained all the necessary qualifications to handle and set off the explosives, and Mr Ellis was shown in a meeting saying, “I like the idea of the smoke that’s of no risk to us or the environment”.

[4]   The 20/20 interviewer questioned Mr Ellis about the possibility of a motorist being distracted by the smoke and having an accident, to which Mr Ellis responded that motorists should always focus on the road, and “I think the legal definition of that is causation”. The interviewer then said “forget the legality, what about the morality?” Mr Ellis said of course he would feel guilty if something like that happened, but that it would be hard to miss that it was a hoax, and reiterated that he and his partners had considered all the possible outcomes and worked to mitigate the risks.

[5]   The interviewer concluded the item by saying, “Only time would tell if the stunt would be seen as a clever prank or a criminal act”.

Complaint

[6]   Rod Valenta complained to Television New Zealand Ltd, the broadcaster, alleging that the item breached standards of law and order and fairness.

[7]   Mr Valenta argued that the item breached Standard 2 because it glamorised and sensationalised a criminal act. He said that Mr Ellis and his group had broken several laws, but the item played down the criminal side of their acts, instead focusing on the fact that they obtained explosives qualifications. Mr Valenta was of the view that these qualifications were portrayed as an acceptable trade-off for the criminal activity involved. Further, he considered that the worldwide publicity and potentially huge income that Mr Ellis would gain from the stunt, along with the fact that he could easily pay for any fines or damage done, conveyed the message to viewers that they could get away with breaking the law and even profit as a result.

[8]   With regard to Standard 6, Mr Valenta complained that the stunt was only described from Mr Ellis’s viewpoint, or that of his advisors who gave the impression that he had obeyed the law and obtained all the necessary qualifications and permits. He argued that there was little mention of the many laws Mr Ellis had potentially broken, and that the programme conveyed that Mr Ellis and his company had cleverly weighed the risk of legal action and costs against the level of promotion they would receive.

[9]   The complainant also contended that Mr Ellis’s comment that the burning fertilizer discharge from the “eruption” smoke was “of no risk to us or the environment”, was made to mislead viewers. He objected to 20/20’s lack of effort taken to research the environmental damage the explosions caused, and its failure to mention the laws and regulations Mr Ellis had “blatantly flaunted”.

Standards

[10]   TVNZ assessed the complaint under Standards 2 and 6 of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[11]   The broadcaster noted that the Authority had previously stated that for Standard 2 to be breached the broadcast must have actively promoted disrespect for the law. It said that in the item, it was quite clear that Mr Ellis did not want to break the law, and had consulted a lawyer to seek clarification of the laws and regulations he might risk breaking. TVNZ emphasised that there was some doubt as to whether the men had in fact broken the law, as no legal action against them had been reported.

[12]   TVNZ maintained that it was the role of current affairs broadcasters to film events as they happened and report them, and that these sorts of news items were relatively common. It said that 20/20 was not directly involved in the stunt or the business Mr Ellis was promoting. The broadcaster argued that 20/20 had repeatedly questioned Mr Ellis about his actions, and he had responded “sometimes seriously, sometimes flippantly”, so that viewers could make their own conclusion about the seriousness of the prank in criminal and ethical terms, as well as about the character of Mr Ellis. 

[13]   TVNZ concluded that the item did not actively promote disrespect for the law, and declined to uphold the Standard 2 complaint.

[14]   With regard to Standard 6, the broadcaster disagreed with Mr Valenta that the screening of the item was unfair. It also argued 20/20 was “not uncritical” of the stunt, as demonstrated by the presenter’s remarks such as “some say his headline-grabbing antics are out of control” and “was it a crazy stunt or a criminal act?”

[15]   The broadcaster maintained that, as the item was clearly from the perspective of the men attempting the stunt, no comment was required from other parties regarding legal or other issues. It said it was clear from the men’s concerns and comments that there were legal issues involved.

[16]   Accordingly, TVNZ found that all of the individuals and organisations referred to in the item were treated fairly, and that Standard 6 had not been breached.

Referral to the Authority

[17]   Dissatisfied with TVNZ’s response, Mr Valenta referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

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.

Standard 2 (law and order)

[19]   The Authority notes that the code does not prohibit broadcasters filming or broadcasting illegal or criminal activity. It has stated on previous occasions (e.g. Decision No. 2005-133) that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.

[20]   In the Authority’s opinion, the programme did not do any of those things.  It notes that the 20/20 interviewer questioned Mr Ellis about the legality and morality of the stunt, and that the item left it up to viewers to decide whether the stunt was “a clever prank or a criminal act”.  Further, it was not clear from the 20/20 item that the actions of Mr Ellis and his partners amounted to criminal activity.

[21]   In these circumstances, the Authority considers that the item did not encourage viewers to break the law, or otherwise promote, condone or glamorise criminal activity. It declines to uphold the complaint that Standard 2 was breached.  

Standard 6 (fairness)

[22]   The fairness standard requires broadcasters to deal justly and fairly with any person or organisation taking part or referred to in an item. Mr Valenta did not identify, in his original formal complaint or in his referral to the Authority, any individuals or organisations he felt had been treated unfairly. Therefore, the Authority has no basis upon which to uphold the Standard 6 complaint.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
4 June 2008

Appendix

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

1.            Rod Valenta’s formal complaint – 26 November 2007
2.           TVNZ’s response to the complaint – 20 December 2007
3.           Mr Valenta’s referral to the Authority – 20 January 2008
4.           TVNZ’s response to the Authority – 17 April 2008