BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Loud overreaching advertisements in religious programmes broadcast on Christmas Eve – breach of good taste

Findings in Decision No: 2001-023
Standard G2 – presence and type of advertising not an issue of broadcasting standards – decline to determine

Appeal against No: 2001-023
Upheld – complaint remitted to Authority to rehear

Findings on Reconsideration
Conjunction between programming and advertising did not breach standards of good taste – no uphold

This headnote does not form part of the decision.

Summary

[1] The programmes screened on TV One between 10:15pm and midnight on Christmas Eve 2000 included carols, Christmas music and Bible readings.

[2] John Watson complained to Television New Zealand Ltd, the broadcaster, that it was offensive for the commercial breaks during these programmes to feature Boxing Day bargains and an exhortation to end prostitution.

[3] Questioning whether the complaint raised a matter of broadcasting standards, TVNZ said that it was, by law, a commercial organisation. However, it added, it had shown restraint about the amount of advertising screened at that time because of the type of programmes being broadcast. It declined to uphold the complaint.

[4] Dissatisfied with the broadcaster's decision, Mr Watson referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

[5] The Authority ruled that the complaint raised a matter of personal preference, rather than broadcasting standards, and declined to determine it.

[6] Mr Watson appealed to the High Court which ruled that the conjunction of programmes and advertisements raised an issue of broadcasting standards. The Court referred this complaint back to the Authority for reconsideration.

On reconsidering the complaint pursuant to the Court’s direction, the Authority declines to uphold the complaint.

Decision

[7] The members of the Authority have viewed part of a tape of the broadcast of the programmes A Christmas Dream from a Holy Land and Christmas Glory from Westminster Abbey. This tape includes most of the commercials shown in Auckland during the commercial breaks.

[8] The content of the commercial breaks on TV One may differ by region, and Mr Watson’s complaint referred to the content of the breaks in Wellington. In particular, he referred to advertisements relating to chlamydia and child prostitution.

[9] Mr Watson advised that, normally, he did not record the contents of the commercial breaks of programmes he was watching and recording. However, he was able to supply the Authority with a copy of the programme containing the commercial break which included the child prostitution message. This has been viewed by the members. The Family Planning Association has made a copy of the advertisement referring to chlamydia available to the members.

[10] TVNZ provided the Authority with a full copy of the advertising log which recorded, by region, the contents of each commercial break between 10.20 and 11.40pm on 24 December 2000.

[11] Accordingly, while the Authority does not have a copy of the exact contents as broadcast in Wellington on TV One between 10.15pm and midnight on 24 December 2000, it has sufficient material and, by using the log, it is able to determine the complaint.

The Complaint

[12] TVNZ broadcast the programmes A Christmas Dream from a Holy Land and Christmas Glory from Westminster Abbey between 10.15 and midnight on TV One on 24 December 2000. Both programmes included carols, Christmas music, and Bible readings.

[13] Mr Watson complained to TVNZ that it was offensive for the commercial breaks during these programmes to include, among others, advertising for Boxing Day bargains and an exhortation to end child prostitution.

The Standard

[14] While expressing doubt whether the complaint raised a matter of broadcasting standards, TVNZ nevertheless assessed the complaint under standard G2 of the Television Code of Broadcasting Practice. Standard G2 requires broadcasters in the preparation and presentation of programmes:

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.

The Broadcaster’s Response to the Complaint

[15] TVNZ advised Mr Watson that it accepted the complaint because the formal complaints procedure in the Broadcasting Act was concerned with "programmes and their presentation".

[16] TVNZ acknowledged that it was easy to see how a Christian could be offended by the interruption, by advertisements, of programmes which focused on carol singing or Bible readings. Nevertheless, it added, it was a State Owned Enterprise (SOE) and was required to operate as a commercial entity. Like other commercial organisations, it argued that it did not see the need to withhold advertising around religious subject matter. It declined to uphold the complaint.

The Complainant’s Referral to the Broadcasting Standards Authority

[17] When he referred his complaint to the Authority, Mr Watson said he failed to see the relevance, first, of TVNZ’s argument that it was required to operate as a commercial entity, and second, the arguments about the nature of the print media. He wrote:

Surely there is a substantial difference between audio/visual advertising material injected into a TV programme, that is being directly watched, and that which can be completely ignored at will in the print media.

[18] Reviewing the extent to which Sundays had become increasingly commercialised over the years, Mr Watson persisted in his complaint that it was unsuitable to include "loud overreaching advertising" around religious based broadcasts.

TVNZ’s Response to the Authority

[19] In its response to the Authority, TVNZ pointed out that, by law, it was required to be a "commercial, profit-making entity". However, it argued, restraint had been shown on Christmas Eve. Observing that the Authority was not concerned with the content of individual commercials, TVNZ explained that advertising breaks had differing content by region. It enclosed a copy of the tape which showed the commercials screened in the Auckland region, and included an advertising log for the entire country for the time period complained about.

The Complainant’s Final Comment

[20] In his final comment, Mr Watson argued that TVNZ’s response, while it dealt with the "mechanics and technicalities of the broadcast", did not address the issue as to the "unpleasant and tasteless interruptions" in the once-a-year programmes.

The Authority’s Initial Determination

[21] Mr Watson’s complaint was addressed in Decision No: 2001-023 (dated 22 May 2001) when the Authority ruled:

Taking into consideration the points raised in the correspondence, the Authority is firmly of the opinion that the complainant is expressing a preference about the type and amount of advertising which should have been broadcast in the commercial breaks during A Christmas Dream from a Holy Land and Christmas Glory from Westminster Abbey screened at 10:15pm and 11:15pm on Christmas Eve on TV One.

The Broadcasting Act 1989, s.5(c), records that:

Complaints based merely on a complainant’s preferences are not, in general, capable of being resolved by a complaints procedure.

The complainant clearly expresses a preference in regard to a matter of broadcasting philosophy and practice. It is an issue which could well be addressed in the proposed Charter for TVNZ. However, it is not a matter of broadcasting standards and, accordingly, does not fall within the Authority’s jurisdiction. In the circumstances, the Authority declines to determine the complaint.

The Appeal to the High Court

[22] Mr Watson was dissatisfied with the Authority’s decision and, under s.18 of the Broadcasting Act, appealed to the High Court. He argued, among other matters, that the Authority was wrong in law to decline to determine the complaint.

The High Court Judgment

[23] On 25 September 2001, Ronald Young J ruled that the Authority had made an error of law, and returned the complaint to the Authority for reconsideration. In so doing, he directed:

The Authority will hear the case with the proposition in mind that the conjunction of advertisements and programmes is a matter that potentially affects standards of good taste and decency as detailed in s4(1) of the Act.

[24] In responding to this direction, the Authority sought submissions from the complainant and TVNZ. It advised the parties that it did not intend to rule on the content of any advertisements as that was the function of the Advertising Standards Complaints Board. It asked for submissions on the presentation issues raised in the complaint and the potential effects on good taste and decency.

The Submission from the Broadcaster

[25] TVNZ acknowledged that it accepted the Authority’s jurisdiction to hear the Mr Watson’s complaint "so long as it does not refer to specific advertisements in relation to specific programming".

[26] TVNZ argued that the advertising breaks during the two programmes were not inappropriate. It accepted that there were special occasions when the screening of advertisements was inappropriate, but noted:

We do not consider that the interruption of carol singing or bible readings in the two programmes "A Christmas Dream from the Holy Land" and "Christmas Glory from Westminster Abbey" by advertising breaks was inappropriate. TVNZ accepts that on some rare occasions when broadcasting live news the screening of advertisements may in fact be inappropriate. The recent example of the September 11 tragic events in New York and Washington DC is one such occasion. Other television broadcasters around the world did likewise. No nationwide free-to-air commercial broadcaster would however, so far as we are aware, eliminate commercial breaks from a programme because it contained some hymns and readings from the bible.

[27] The Advertising Standards Authority advised that it concurred with TVNZ’s position.

The Submission from the Complainant

[28] Mr Watson acknowledged that he preferred viewing programmes free of all advertising, but recognised "that is a vain hope in a climate of user-pays". Nevertheless and arguing that Young J would support his view, he continued:

Having said that, I believe if we are to suffer the intrusion of advertising it should at all times meet certain established standards of presentation with due appreciation of the type of programme within which it is packaged. In point of fact, as I understand it, that is the very reason why the Broadcasting Standards Authority is in existence.

[29] He then addressed the aspect of the High Court judgment cited above, and said the following were relevant factors relating to the "conjunction" of advertising and the two programmes.

[30] The two programmes, he began, were TVNZ’s principal offering "to those who take Christmas seriously". He continued:

The broadcast took place late on Christmas Eve with the advertising breaks coming between 10.20pm and shortly before midnight. It could be expected that the programmes featuring a Christmas theme and a famous teenage soprano would attract a viewing audience comprising families, and notwithstanding the lateness of the hour, young children not to be denied. Christmas Eve is traditionally a time when families are together and will tend to stay up later than usual. Apart altogether from the nature of the two programmes in this case, this time of day comes within what TVNZ describes as its "low advertising period", so that there would, in any event, be an expectation of a reduction in the volume of advertising compared to earlier peak advertising periods.

[31] Turning to the advertisements screened, Mr Watson said the majority "made a strong commercial pitch for Boxing Day". These advertisements, he contended:

… and particularly the sound level associated with strident repeated requests to spend over the Christmas season, seriously detracted from the quality of presentation and the enjoyment of the two Christmas programmes.

[32] Finally, he turned to two advertisements which, although "well motivated", were "singularly offensive", particularly given the number of young children who would be viewing. It was not appropriate, he wrote, to screen the advertisements relating to safe sex and child prostitution. Screening such advertisements, he insisted, meant that the broadcaster failed to comply with standards of good taste and decency.

[33] Mr Watson concluded:

… I would make the passing observation that TVNZ, in all probability, inserted the advertising complained about within the Christmas Eve presentation of A Christmas Dream from the Holy Land and Christmas Glory from Westminster Abbey without due thought as to the type of presentation involved. Hopefully a circumstance not likely to be repeated.

The Authority’s Determination

[34] The programme Charlotte Church: A Christmas Dream from the Holy Land started at 10.15pm on TV One on Christmas Eve 2000. It was followed by Christmas Glory from Westminster Abbey which screened until after midnight. There were five advertising breaks during this time: at 10.20, 10.40, 10.50, 11.20, and 11.40pm.

[35] The Authority has viewed the programmes as screened in the Auckland region. It also has the advertising log for the six regions for which advertising content differs slightly.

[36] Most of the advertisements screened in each break were identical throughout New Zealand. A small number varied by region. Moreover, most of the advertisements were standard advertisements for specific products (such as dishwashers) or for specific retail outlets (such as The Warehouse). Each commercial break consisted of between six and eleven advertisements, and lasted for between three and four minutes. Usually there were one or two advertisements in each break which specifically referred to Boxing Day sales.

[37] The advertising log also disclosed, first, that a 45 second community message calling for an end to child prostitution was broadcast throughout the country as the second message of the 10.50pm commercial break. Second, the log records that a 30 second commercial message designed to raise awareness about the dangers of chlamydia was broadcast on one occasion in three of TVNZ’s six advertising regions, during the regional breakout portion of the commercial breaks. Wellington was one of the regions in which this message was screened.

[38] Mr Watson complained that the advertisements screened during the two programmes were offensive and breached the requirement for broadcasters, during the presentation of programmes, to take into account currently accepted norms of taste and decency.

[39] Young J has directed in para 29 of his judgment:

The Authority will hear the case with the proposition in mind that the conjunction of advertisements and programmes is a matter that potentially effects standards of good taste and decency as detailed in s.4(1) of the Act.

[40] The Authority stresses that it is focusing on the conjunction referred to. It is not concerned with assessing whether the advertisements individually comply with advertising standards or, indeed in view of the complaint, whether the programmes comply with broadcasting standards.

[41] The Authority also records its view that broadcasters, and advertisers, and viewers each have rights. TVNZ is a commercial organisation 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 specific days each year (including Christmas Day).

[42] These rules about the broadcast of advertisements are requirements in the Act, and the Authority does not regard the legislation as giving it the right, as a broadcasting regulator, to prescribe the type of advertisements which may be screened on Christmas Eve.

[43] The Authority’s first observation in assessing the specific complaint is to note that it found neither the frequency, nor the volume, nor the length of the commercial breaks to be excessive, or in any other way offensive in conjunction with the nominated programmes .

[44] In response to an earlier inquiry about the apparent increase in volume of advertisements, TVNZ has advised the Authority that the maximum level of sound in television programmes and advertisements is the same. However, it said, the sound processing for commercials occurs to improve "intelligibility". That usually happens in the middle of the frequency range. As a result, the sound levels are perceived to change between programmes and commercials, whereas it in fact involves the ears adjusting to the changes in the average level. TVNZ said that the process was similar to eyes adjusting to darkness and light.

[45] The Authority accepts TVNZ’s advice and, regardless of the sound processing which Mr Watson described as "strident", considers that the perceived difference in the volume levels was no different on Christmas Eve than on other occasions.

[46] Given the process regarding the broadcast of advertisements set out in the Act, and in view of its observation about the frequency, volume and length of the commercial breaks, the Authority concludes that the conjunction between the commercial breaks and the programmes broadcast on TV One between 10.15 and midnight on 24 December 2000 did not transgress standards of good taste and decency.

[47] As well as complaining that the broadcast of "loud overreaching advertising featuring Boxing Day bargains" breached the good taste requirement, Mr Watson in his initial complaint referred specifically to the "exhortation to end prostitution". In his more recent correspondence he also referred to an advertisement "encouraging safe sex".

[48] In his decision, Young J opined that the broadcast of one specific advertisement could amount to a breach of the standards. He wrote when referring to the Authority’s responsibility for the conjunction between programming and advertisements (para 19):

An example to illustrate the problem can be constructed. It could be an absence of good taste and decency to advertise "funeral homes" during television pictures of a public funeral of a much loved citizen. Neither the programme nor the advertisement would breach any standards but shown together they could offend good taste and decency. Interpreting the section in this way protects the jurisdiction of the Advertising Complaints Authority. It is not the content of the advert per se that is relevant here, that is the preserve of the Complaints Authority. It is its position in relation to the programme shown which is the essence.

[49] When assessing this aspect of Mr Watson’s complaint, the Authority reiterates that it is not the content of the advertisements which are relevant, but the conjunction between the advertisements and the programmes. In this regard 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 commercial advertisements and socially responsible messages alerting to the dangers of child prostitution and chlamydia.

[50] The Authority notes that neither of the specific advertisements was broadcast in a commercial break unaccompanied by other commercials. The 45 second message calling for an end to child prostitution was the second advertisement in a group of seven in a commercial break lasting 3 minutes and 45 seconds. The log records that the message was rated "PGR". It was broadcast at 10.50pm, which is nearly four hours after the PGR time-band begins at 7.00pm, and more than two hours after the AO time-band begins at 8.30pm.

[51] The 30 second "Community Support" message which was designed to increase awareness of the dangers of chlamydia was also classified as PGR. It was broadcast in three separate breaks, being the seventh of eight in a 3 minute 50 second break at 10.20pm in one area, the ninth of nine in the 3 minute 45 second break at 10.50pm in the second area, and the sixth of six in a three minute commercial break at 11.20pm in the third area.

[52] The Authority makes these points to illustrate its view that the advertisements were not highlighted in a way which could threaten the requirement for good taste, nor were they inappropriate in programmes which dealt with the celebration of Christmas. For example, neither the chlamydia nor the child prostitution advertisements were positioned directly after the named Christmas programmes. Rather, their conjunction was a package of advertising and did not offend good taste and decency.

[53] Mr Watson expressed his concern at the increase of "invasive commercialism" on television. The Authority addressed that aspect in Decision No: 2001-023 and ruled that it was not an issue of broadcasting standards.

[54] The High Court has directed that the Authority address the aspect of Mr Watson’s complaint which is concerned with the conjunction of programmes and advertisements as a question of good taste and decency.

[55] The Authority has followed this direction and has examined the conjunction between advertising and the programmes which were screened on Christmas Eve in 2000. Given the broadcasting environment in which TVNZ operates, and given the volume and type of advertisements screened, the Authority determines that the requirements of s.4(1)(a) were not breached.

[56] The Authority observes that to find a breach of the nominated standards would be to interpret the Broadcasting Act 1989 in such a way as to place too great a limit on the broadcaster’s statutory freedom of expression in s14 of the New Zealand Bill of Rights Act 1990, and prefers to adopt an interpretation of the standards which is consistent with the Bill of Rights.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
 21 February 2002

Appendix

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

1. John Watson’s Complaint to Television New Zealand Ltd – 26 December 2000
2. TVNZ’s Initial Response – 8 January 2001
3.  TVNZ’s Response to the Formal Complaint – 23 January 2001
4. Mr Watson’s Referral to the Broadcasting Standards Authority – 7 February 2001
5. TVNZ’s Response to the Authority – 12 February 2001
6. Mr Watson’s Final Comment – 15 February 2001
7. Decision No: 2001-023 – 22 March 2001
8. Correspondence relating to the Appeal – April – September 2001
9. Reserved Judgment of Ronald Young J – 25 September 2001
10. Advertising Standards Authority’s Submission to the Authority on the Judgment (plus attachments) – 16 October 2001
11. Memorandum as to costs from Ronald Young J – 18 October 2001
12. TVNZ’s Submission to the Authority on the Judgment – 29 October 2001
13. Mr Watson’s Submission to the Authority on the Judgment – 10 November 2001
14. TVNZ’s Further Submission to the Authority on the Judgment – 14 November 2001
15. TVNZ’s Submission on the Rehearing – 6 December 2001
16. Mr Watson’s Submission on the Rehearing – 11 December 2001
17. Advertising Standard Authority’s Submission on the Rehearing – 11 December 2001