Investigation Report No. 2732

File No. / ACMA2011/1959
Licensee / Queensland Television Ltd
Station / QTQ Brisbane
Type of Service / Commercial Television
Name of Program / Today
Date of Broadcast / 7 December 2011
Relevant Legislation / Clause 7(1)(a) of Schedule 2 to the Broadcasting Services Act 1992.
Tobacco Advertising Prohibition Act 1992.
Date Finalised / 10 April 2012
Decision / No breach of clause 7(1)(a) of Schedule 2 to the Broadcasting Services Act 1992

The complaint

On 14 December 2011, the Australian Communications and Media Authority (ACMA) received a complaint that Channel Nine Pty Ltd, the licensee of TCN (the licensee), broadcast visual and verbal references to cigarettes and smoking during the program, Today,on 7December 2011.

Paragraph 7(1)(a) of Schedule 2 to the Broadcasting Services Act 1992 (the BSA) states that it is a condition of a commercial television broadcasting licence that the licensee will not, in contravention of the Tobacco Advertising Prohibition Act 1992 (the TAP Act), broadcast a tobacco advertisement within the meaning of that Act.

As this complaint relates to a licence condition, the complaint was able to be made directly to the ACMA without written reference to the licensee. Nevertheless, the complainant complained to the licensee in the first instance and subsequently referred the matter to the ACMA for consideration.

This matter has been considered under paragraph 7(1)(a) of Schedule 2 to the BSA, and sections 8, 9(1), 9(1A), 9(7), 13 and 14 of the TAP Act. The relevant legislation is outlined at Attachment A.

The program

Today is a breakfast program broadcast between 5:30 am and 9:00am on weekdays on the Nine Network. On 7 December 2011, the presenters invited viewers to send in their ‘bad Santa photos’. The photos were broadcast intermittently throughout the program.

The material the subject of the complaint was a photo of a man dressed in a Santa costume, holding a beer and smoking:

Assessment

The assessment is based on the DVD recording of the broadcast provided to the ACMA by the licensee, as well as submissions from the complainant and the licensee. Other sources have been identified where relevant.

The complaint

The complainant submitted:

[...]

I wish to register a complaint regarding a photograph and comment that was broadcast on the ‘Today Show’ on the morning of Wednesday, 07.12.2011. The photograph was of a Santa with a cigarette. The Today Show crew decided to broadcast it and make comment as part of their ‘Bad Santa’ photograph section. My four and a half year old son immediately picked up on the photograph and the cigarette and was quite distraught about it. It took a while to placate him and settle his fears that Santa will not die. After discussing this with my wife I decided to send the below email to the Today Show team, that same morning. However, to date I have not received a reply from the Today Show or Channel Nine.

In light of the Government’s attitude on cigarette advertising at the present time, and the fact that this segment/photograph was shown at this time of the year at a family time slot,I would appreciate your comments regarding my complaint.

[...]

Issue 1: Whether the licensee broadcast a tobacco advertisement

Finding

The licensee did not breach the licence condition under clause (7)(1)(a) of Schedule 2 to the BSA.

Reasons

Section 13 of the TAP Act

Tobacco advertisements not to be broadcast

Section 13 of the TAP Act provides that a person must not broadcast a tobacco advertisement in Australia on or after 1 July 1993.

The object of the TAP Act at subsection 3 (1) is ‘to limit the exposure of the public to messages and images that may persuade them to (a) start smoking, or to continue smoking; or (b) to use, or to continue using, tobacco products’.

There is no question that the segment was broadcast on 7 December 2011. The issue is whether the segment included a tobacco advertisement, broadcast in contravention of the TAP Act.

Whether the segment included tobacco advertisements

Tobacco advertisement

Subsection 9(1) of the TAP Act provides:

Subject to this section, for the purposes of this Act, a tobacco advertisement is any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is intended to promote:

(a)smoking; or

(b)the purchase or use of a tobacco product or a range of tobacco products; or

(c)the whole or part of a trade mark that is registered under the Trade Marks Act 1955 in respect of goods that are or include tobacco products; or

(d)the whole or part of a design that is registered under the Designs Act 2003 in relation to products that are or include tobacco products; or

(e)the whole or part of the name of a person:

  1. who is a manufacturer of tobacco products; and
  2. whose name appears on, or on the packaging of, some or all of those products;

(f)any other words (for example the whole or a part of a brand name) or designs, or combination of words and designs, that are closely associated with a tobacco product or a range of tobacco products (whether also closely associated with other kinds of products).

The material broadcast, the subject of the complaint,was a photographic still of a man in a Santa costume smoking. This was accompanied by the presenter’s comment:

Santa on the Tooheys New and the Winnie Blues. Good on ya, Santa. Great stuff.
We are in no way endorsing that kind of behaviour.

The ACMA considers that this material included the combination of a photographic still and an audible messagefalling within subsection 9(1) of the TAP Act.

Give publicity to, or otherwise promote

The next question for the ACMA is whether the material gave publicity to, or otherwise promoted, any of the things listed in paragraphs (a) – (f) of subsection 9(1) of the TAP Act.

The Macquarie Dictionary (fifth edition) provides the following definitions of ‘publicity’ and ‘promote’:

Publicity

1.the state of being public, or open to general observation or knowledge.
2.public notice as the result of advertising or other special measures.
3.the state of being brought to public notice by mention in the mass media, or by any other means serving to effect the purpose.
4.the measures, process, or business of securing public notice.
5.advertisement matter, as leaflets, films, etc., intended to attract public notice.

Promote

1.to advance in rank, dignity, position, etc.
2.to further the growth, development, progress, etc., of; encourage.
3.to help to found; originate; organise; launch (a financial undertaking, publicity campaign, etc.).

The second and third meanings of ‘publicity’, and the second meaning of ‘promote’, are most relevant for present purposes.

The ACMA considers that the combination of the photographic still of a man in a Santa costume smoking together with the presenter’scommentwas likely to increase consumer awareness of and give publicity to:

smoking;

a trade mark of a tobacco company registered in Australia, namely Winfield; and

a product manufactured by Winfield, namely ‘Winnie Blues’.

The photographic still was zoomed in on to explicitly show that the man in the Santa costume was smoking; and, the presenter’s comment clearly named a tobacco manufacturer and one of its products, Winfield, using the moniker ‘Winnie Blues’.

The ACMA finds that the material gave publicity to or otherwise promoted smoking and a brand that is closely associated with a tobacco product. Therefore, the material broadcast on 7 December 2011 included a tobacco advertisement within the meaning of subsection 9(1) of the TAP Act.

Whether the tobacco advertising in the segment was permitted by section 14 of the TAP Act

Under section 14 of the TAP Act, the broadcast of a tobacco advertisement is permitted if it is an ‘accidental or incidental accompaniment’ to the broadcasting of other matter, and the licensee does not receive any direct or indirect benefit for broadcasting the advertisement.

Accidental accompaniment to the broadcasting of other matter

It is apparent from the broadcast that the licensee made an editorial decision to include the photograph in the segment. This was evident by the licensee’s decision to edit the photograph by zooming in on it. In this regard, the broadcast of the photograph and the presenter’s comments were not ‘accidental’.

Incidental accompaniment to the broadcasting of other matter

The ACMA notes that, in considering the meaning of the word ‘incidental’, the Full Federal Court in the Rothmans case[1],and the High Court in the United Telecasters case[2], referred to the definitions found in The Shorter Oxford Dictionary and TheMacquarie Dictionary, as set out below.

The Shorter Oxford Dictionary defines ‘incidental’ as:

1. Occurring or liable to occur in fortuitous or subordinate conjunction with something else; casual... 2. Casually met with....

The Macquarie Dictionary definition of ‘incidental’ includes:

‘happening...in fortuitous or subordinate conjunction’ with the ‘other matter’ ...2nd ed (1987)[3]

In the Rothmans case, the Court stated:

It is not difficult to think of circumstances under which a licensee might televise matter of an advertising character as an incidental accompaniment of televising other matter; for example a televised news item shows a street scene with advertising billboards in the background. The transmission may be accidental, in the sense that the staff of the licensee do not notice the background billboard.But it may also be deliberate. The action—which represents a genuine news item—happens to take place in front of the billboard so that if the news item is to be used the billboard must also be shown. Under such circumstances the exclusion of ‘incidental accompaniment’ would apply.[4]

In the ACMA’s view, a tobacco advertisement will only be regarded as an ‘incidental accompaniment’ if it is subordinate to the main matter being broadcast. If a tobacco advertisement dominates or forms a substantial feature of a program, scene or segment, it will not be regarded by the ACMA as an ‘incidental accompaniment’.

In this case, on balance, the ACMA is of the view that the broadcast of the photograph and the presenter’s comment were incidental to the broadcast of the segment as a whole. In reaching this view the ACMA notes that:

the photograph and presenter’s comment were broadcast as part of a broadersegment named, ‘bad Santa photos’. The ‘bad Santa photos’ were broadcast intermittentlythroughout the 3.5 hour program;

the photograph, the subject of the complaint, was displayed on screen for 32 seconds;

the purpose of broadcasting the photograph was to ridicule the man for smoking while wearing a Santa costume;

the presenter’scomment about ‘Winnie Blues’ was a passing reference to tobacco, and was not repeated during the course of the segment or the program;

the presenter’s comment was unscripted and made in jest;

the presenter’s comment constituted a one-line remarkwhich was of little significance compared to the totality of words spoken during the course of the ‘bad Santa’ segment or the program; and

the Winfield logo was not displayed on screen at any time.

In this context, the advertisement was brief relative to the entire ‘bad Santa’ segment and there was no other reference to smoking or a tobacco product in the duration of the 3.5 hour program. It did not dominate or form a substantial feature of the ‘bad Santa’segment and occurred in subordinate conjunction with the portrayal of ‘bad Santas’.

Having regard to the above factors, the ACMA considers that the material was an incidental accompaniment to the broadcast of other matter, permitted by section 14 of the TAP Act.

Nevertheless, the ACMA considers thatgreater care should have been exercised in the selection of photographs to provide humour in the segment.

Direct or indirect benefit

The ACMA accepts that the licensee did not receive any direct or indirect benefit for broadcasting a tobacco advertisement.

On this basis the material did not contravene the TAP Act.

Attachment A

Broadcasting Services Act 1992

Schedule 2 Standard conditions

7Conditions of commercial television broadcasting licences

(1) Each commercial television broadcasting licence is subject to the following conditions:

(a) the licensee will not, in contravention of the Tobacco Advertising Prohibition Act 1992, broadcast a tobacco advertisement within the meaning of that Act;

Tobacco Advertising Prohibition Act 1992

Section 9 Meaning of tobacco advertisement

Basic meaning

(1)Subject to this section, for the purposes of this Act, a tobacco advertisement is any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is intended to promote:

a) smoking; or
(b) the purchase or use of a tobacco product or a range of tobacco products; or
(c) the whole or a part of a trade mark that is registered under the Trade Marks Act 1955 in respect of goods that are or include tobacco products; or
(d) the whole or a part of a design that is registered under the Designs Act 2003 in relation to products that are or include tobacco products; or
(e) the whole or a part of the name of a person:
(i) who is a manufacturer of tobacco products; and
(ii) whose name appears on, or on the packaging of, some or all of those products; or
(f) any other words (for example the whole or a part of a brand name) or designs, or combination of words and designs, that are closely associated with a tobacco product or a range of tobacco products (whether also closely associated with other kinds of products).

Section 14Accidental or incidental broadcast permitted

A person may broadcast a tobacco advertisement if:

(a) the person broadcasts the advertisement as an accidental or incidental accompaniment to the broadcasting of other matter; and

(b) the person does not receive any direct or indirect benefit (whether financial or not) for broadcasting the advertisement (in addition to any direct or indirect benefit that the person receives for broadcasting the other matter).

ACMA Investigation Report –Today– QTQ – 7 December 20111

[1]Rothmans of Pall Mall (Australia) Ltd v Australian Broadcasting Tribunal (1985) 58 ALR 675

[2]Director of Public Prosecutions v United Telecasters Sydney Limited (1989) 168 CLR 594

[3] This definition of incidental is retained in the current on-line edition of the Macquarie Dictionary.

[4] at 691