TCN Sydney - ACMA Investigation Report 2933

Investigation Report No. 2933

File No. ACMA2012/1806

Licensee TCN Channel Nine Pty Ltd

Station TCN Sydney

Type of Service Commercial television

Name of Program Cricket – Australia vs South Africa

Dates of Broadcast 11 and 24 November 2012

Relevant Code Clause 1.18 of the Commercial Television Industry Code of Practice 2010

Date Finalised 3 May 2013

Decision No breach of clause 1.18 (promotional material)

1 The complaint On 7 December 2012, the Australian Communications and Media Authority (the ACMA) received a complaint concerning the program Cricket – Australia vs South Africa (the program) broadcast by TCN Channel Nine Pty Ltd (the licensee). The complainant alleged that the licensee failed to distinguish some advertisements and promotions for the beer Victoria Bitter (VB) from commentary during broadcasts of the program on 11 and 24 November 2012 (the broadcasts). The ACMA commenced an investigation into the broadcasts under section 170 of the Broadcasting Services Act 1992.1 The ACMA has considered the licensee’s compliance with clause 1.18 (promotional material) of the Commercial Television Industry Code of Practice 2010 (the Code). The program The program was part of the licensee’s coverage of the Vodafone Test Series played between Australia and South Africa between 9 November and 4 December 2012. The program is broadcast during the summer across Australia by the licensee and covers the annual series of cricket Test matches involving Australian and its Test opponents. Each day’s broadcast commences at approximately 10:30am and finishes at approximately 6:00pm. The day’s play is called by a dedicated commentary team. Close to the end of the day’s play, the broadcasts featured brief VB hard earned play of the day segments (the segments). The segment on 11 November 2012 (the first segment) included, in this order:  the music associated with VB  the commentator saying:

The original big, cold beer, Victoria Bitter, it’s back to its best, the taste that you love is back. Full strength, full flavour, yep, Vic Bitter’s back – matter of fact you can pick it up now! It’s back on the label, we’ve restored the iconic label to go with the iconic taste, we’re going back to hard-earned thirst. Reward yourself with a Vic Bitter, after a hard day’s work. That’s a little later [Commentator 2], you and me.  three minutes of play before discussion between the commentators over who they considered to have been the best player on that day  a highlight reel of that player’s efforts  the text ‘VB HARD EARNED PLAY OF THE DAY’ and the VB logo appearing at the bottom of the screen. The segment on 24 November 2012 (the second segment) featured the following:  the music associated with VB

1 Section 170 provides that the ACMA may conduct investigations for the purposes of the performance or exercise of any of its broadcasting, content and datacasting functions (as defined in the Australian Communications and Media Authority Act 2005) and related powers. ACMA Investigation Report 2933 – Cricket – Australia vs South Africa broadcast by TCN Sydney on 11 and 24 November 2012 2  the commentator saying:

The original big cold beer, Victoria Bitter, is back to its best! Full strength, full flavour, and we’ve restored the iconic taste. After a hard day’s work and a hard-earned thirst, reward yourself with a cold Vic Bitter, it’s been a long, hot day here at Adelaide...  the immediate announcement of the best player for that day  a highlight reel of that player’s efforts  the text ‘VB HARD EARNED PLAY OF THE DAY’ and the VB logo appearing at the bottom of the screen. A transcript of the segments and a description of the footage that accompanied them is at Appendix A. Assessment The ACMA’s assessment is based on submissions from the complainant, submissions from the licensee and a copy of the broadcast provided by the licensee. Other sources used have been identified where relevant. In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable’ viewer. Australian courts have considered an ‘ordinary, reasonable’ viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.2

In considering compliance with the Code, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, and any inferences that may be drawn. Once this test has been applied to ascertain the meaning of the material broadcast, it is for the ACMA to determine whether there has been a breach of the Code. Issue – was the material distinguishable from other program material? Relevant Code clause

Presentation of Broadcast Material

1.18 Where a licensee receives payment for material that is presented in a program or segment of a program, that material must be distinguishable from other program material, either because it is clearly promoting a product or service, or because of labelling or some other form of differentiation.

2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167. ACMA Investigation Report 2933 – Cricket – Australia vs South Africa broadcast by TCN Sydney on 11 and 24 November 2012 3 Submissions The submissions of the complainant and the licensee are at Appendix B and Appendix C respectively. Finding The licensee did not breach clause 1.18 of the Code. Reasons In order to determine whether the licensee has complied with clause 1.18 of the Code, the ACMA must first consider whether the licensee received payment for the material presented in the program. If the licensee did receive payment, the ACMA must then consider whether the material was distinguishable from other program material because:  it clearly promoted a product or service; or  there was labelling or some other form of differentiation.

Clause 1.18 does not require licensees to expressly disclose that they were paid to broadcast particular material during a broadcast. However, it does require licensees to ensure that material for which they receive payment is distinguishable from other program material. The licensee has verified that it received payment to present the segments in the program – having ‘confirm[ed] that VB Beer does pay us for this segment’. As the licensee received payment to present the material, the ACMA must consider whether the segments were distinguishable from other program material. The ACMA assesses whether promotional material is distinguishable to a reasonable viewer from other program material by reference to a range of factors. These factors include content, style, tone, scripting and the placement of the promotional material. The ACMA considers that viewers use particular cues or signals to identify whether material is promotional. These cues and signals include:  references to a brand or product name and/or repetition of a brand or product name including visual images such as brand logos  highly or overly detailed discussions of products and services  overly positive and unbalanced descriptions and discussions  a scripted or artificial feel associated with discussions.

The complainant submitted that the commentator:

blatantly promoted the VB beer brand as part of the commentary, without any indication that this was an advertisement.

The complainant also submitted that:

it appears that [the commentator] was reading from a prepared script. There was no disclosure of this VB promotion as an advertisement.

ACMA Investigation Report 2933 – Cricket – Australia vs South Africa broadcast by TCN Sydney on 11 and 24 November 2012 4 The licensee submitted that the segments were ‘clearly “distinguishable” from other program material’, ‘they also clearly [promoted] a product’ and that:

while the Segment[s were] broadcast in the Program, [they were] introduced in a manner that alert[ed] the viewer to a new segment within the Program’s Cricket coverage, whether through the inclusion of music or through an express reference to a commercial product.

The ACMA considers that the two segments would have been distinguishable from the rest of the cricket action being broadcast to the ordinary, reasonable viewer as they have the hallmarks of promotional material. In particular:  Repetition of a brand or product name featured in both segments. The repeated references to VB and use of phrases associated with the VB brand such as ‘a hard- earned thirst’ and ‘as a matter of fact ... I want one now’ would be understood by viewers as clearly promoting the VB product. Further, the presence of the VB logo at the bottom of the screen reinforces the association of the segment with the VB brand.  The segments were introduced with the VB music jingle which has accompanied VB commercials for several decades in Australia. Viewers would readily associate it with the VB product. The use of VB music to introduce the segments would alert the ordinary, reasonable viewer to expect that promotional material would follow.  They contain highly detailed discussions of products and services. Both segments open with a detailed and unambiguous discussion of VB. In the case of the first segment, the opening discussion states:

The original big, cold beer, Victoria Bitter, it’s back to its best, the taste that you love is back. Full strength, full flavour, yep, Vic Bitter’s back – matter of fact you can pick it up now! It’s back on the label, we’ve restored the iconic label to go with the iconic taste, we’re going back to hard-earned thirst. Reward yourself with a Vic Bitter, after a hard day’s work.  The descriptions and discussions about VB beer are hyperbolic. For example, in both segments, words and phrases used in association with VB include ‘original’, ‘the taste you love’, ‘full strength, full flavour’, ‘iconic’ and ‘reward yourself’.  There is a scripted and artificial feel associated with the commentary. The words used in the segments seem scripted rather than spontaneous, thereby adding to the sense that the segments were outside the norm of the program’s usual material. As the complainant indicated in his submissions, the commentators appeared to read from a prepared script. Further, the segments have a particular style that sets them apart from the cricket action - they occurred during breaks in play and were accompanied by an overhead still shot, taking in the entire stadium. Given the above, the ACMA is of the view that the ordinary, reasonable viewer would have been aware that the segment was distinct from the rest of the broadcasts.

ACMA Investigation Report 2933 – Cricket – Australia vs South Africa broadcast by TCN Sydney on 11 and 24 November 2012 5 The ACMA notes that the first segment comprised two parts separated by three minutes of play, as opposed to the second segment which was continuous. The ACMA considers that for the reasons above, it was readily apparent to viewers that the two parts of the segment were connected and promotional in nature. The ACMA considers that the factors outlined above combined to make it clear to the ordinary, reasonable viewer that the segments were ‘clearly promoting’ VB. Accordingly, the licensee did not breach clause 1.18 of the Code.

ACMA Investigation Report 2933 – Cricket – Australia vs South Africa broadcast by TCN Sydney on 11 and 24 November 2012 6 Appendix A Transcript of the segments and accompanying footage The first segment – 11 November 2012

Audio Images

[The VB music plays, prominently at first before fading A still, unbroken shot taken from high up in the stadium, taking in the entire field’s play. The into the background and accompanying the players can be viewed from afar on the field of play, preparing themselves for the next over Commentators’ words]. to be bowled. Commentator 1 – The original big, cold beer, Victoria Bitter, it’s back to its best, the taste that you love is back. Full strength, full flavour, yep, Vic Bitter’s back – matter of fact you can pick it up now! It’s back on the label, we’ve restored the iconic label to go with the iconic taste, we’re going back to hard-earned thirst. Reward yourself with a Vic Bitter, after a hard day’s work. That’s a little later [Commentator 2], you and me.

6 Commentator 2 – Those famous ads. Matter of fact... The batsman taking stance and readying himself as the bowler comes in to bowl. Commentator 1 – Matter of fact... Commentator 2 – I want one now. Commentator 1 – A hard-earned thirst, boy. Hard- earned runs at the Gabba!

[This was followed by approximately three minutes of play, before the following featured]:

Audio Images

Commentator 1 – And the hard-earned play of the day, Live action of the day’s play; the batsman strolling around at the crease. the Vic Bitter hard-earned play of the day, you won’t be surprised to hear, it goes to Jacques Kallis.

ACMA Investigation Report 2933 – Cricket – Australia vs South Africa broadcast by TCN Sydney on 11 and 24 November 2012 7 Gone to another test match 100... Highlights of shots played by Kallis earlier on during the day’s play.

...number 44 in a glorious career. Further highlights of Kallis’ innings, with the text ‘VB HARD EARNED PLAY OF THE DAY – Jacques Kallis’ and the VB logo displayed prominently at the bottom of the screen. This continued for some 20 seconds.

ACMA Investigation Report 2933 – Cricket – Australia vs South Africa broadcast by TCN Sydney on 11 and 24 November 2012 8 The second segment – 24 November 2012

Audio Images

[The VB music plays, prominently at first before fading A still, unbroken shot taken from high up in the stadium, taking in the entire field’s play. The into the background and accompanying the players can be viewed from afar on the field of play, preparing themselves for the next over Commentators’ words]. to be bowled. Commentator - The original big cold beer, Victoria Bitter, is back to its best! Full strength, full flavour, and we’ve restored the iconic taste. After a hard day’s work and a hard-earned thirst, reward yourself with a cold Vic Bitter, it’s been a long, hot day here at Adelaide...

...and the cricketer we’ve awarded the hard-earned play The bowler running in to bowl at the batsman, who faces a delivery. of the day to... is Jacques Kallis...

ACMA Investigation Report 2933 – Cricket – Australia vs South Africa broadcast by TCN Sydney on 11 and 24 November 2012 9 ...for that brave innings with injury; he defied the Players strolling around the pitch. Australians.

Commentator – There we go, there are some of the Cut to highlights of some of Kallis’ shots from earlier in the day, accompanied by the text strokes that Jacques Kallis played today. ‘VB HARD EARNED PLAY OF THE DAY’ and the VB logo displayed prominently at the bottom of the screen. This continued for some 15 seconds. Commentator 2 – I’d be thinking seriously about playing him in Perth; on one leg he’s better than any replacement they’ve got on two!

ACMA Investigation Report 2933 – Cricket – Australia vs South Africa broadcast by TCN Sydney on 11 and 24 November 2012 10 Appendix B Complainant’s submissions The complainant submitted the following to the ACMA:

I write to express concern about apparent undisclosed advertisements for VB beer, heard on a number of occasions during the [Licensee] broadcast of the Australia v South Africa International Test Cricket Series...

During commentary on the recent Australia v South Africa cricket series, the commentator (we believe [MN]) blatantly promoted the VB beer brand as part of the commentary, without any indication that this was an advertisement. The wording used appeared to be identical to that used in VB beer advertisements also screened [by the Licensee]...

It appears that [MN] was reading from a prepared script. There was no disclosure of this VB promotion as an advertisement...

11 Appendix C Licensee’s submissions The licensee submitted the following to the ACMA:

...Clause 1.18 of the Code does not require a broadcaster to “disclose” the existence of the commercial arrangement, but rather ensure that the segments are “distinguishable” either by clearly “promoting a product” or because of labelling or some other form of differentiation. We confirm that VB Beer does pay us for this segment. The Segment runs throughout the Program’s coverage and... we believe we comply with the Code.

Our Cricket coverage contains the VB Hard Earned Play of the Day segment. During this Segment, the VB music plays and the commentary team will announce that it is now time to look at the ‘Victoria Bitter Hard Earned Play of the Day.’ This is accompanied by a lower frame super with the VB logo The commentary goes on to say: ‘All brought to you by Victoria Bitter, for a hard earned thirst. This segment recognises the best individual effort from today’s play, and the man out there who best deserves a big cold beer.’ Further, the commentary states: ‘VB is back to its full strength taste.’

The commentators will discuss the VB beer taste by stating ‘a hard earned thirst’ or ‘hardest thirst’ during the Segment to promote the VB Beer brand. Thereafter, the commentators continue to decide the ‘VB Hard Earned play of the Day’ by discussing which player’s performance during the game qualifies them for this title. The description of the product’s taste is a form of ‘promoting the product’ before the Segment begins.

As demonstrated... by the description of these Segments, they are clearly “distinguishable” from other program material and they also clearly promote a product.

While the Segment is broadcast in the Program it is introduced in a manner that alerts the viewer to a new segment within the Program’s Cricket coverage, either through the inclusion of music or through an express reference to a commercial product...

The inclusion of music and super also work to distinguish the Segment as part of a commercial arrangement and Nine believes the ordinary reasonable viewer will clearly differentiate the VB segment, in that it is sufficiently ‘marked off as different’ from the program material of the Cricket coverage.

[The Licensee] maintains that the Program’s Segment is both ‘distinguishable’ and ‘clearly promoting a product’ as required by clause 1.18 of the Code...

ACMA Investigation Report 2933 – Cricket – Australia vs South Africa broadcast by TCN Sydney on 11 and 24 November 2012 12