Atv Melb - ACMA Investigation Report 2782

Investigation Report No. 2782

File No. ACMA2012/436

Licensee Network Ten (Melbourne) Pty Ltd

Station ATV Melbourne

Type of Service Commercial television broadcasting

Name of Program It’s a Knockout

Dates of Broadcast 27 November 2011 4, 11 and 18 December 2011

Relevant Code Clauses 1.18, 6.24.3, and 7.11 of the Commercial Television Industry Code of Practice 2010

Date Finalised 1 June 2012

Decision No breach of clause 1.18 (presentation of broadcast material) No breach of clause 6.24.3 (promotion of products or services in programs directed to children) No breach of clause 7.11 (complaints handling)

ACMA Investigation Report – It’s a Knockout broadcast by ATV on 27 November and 4, 11 and 18 December 2011 The complaint On 28 February 2012, the Australian Communications and Media Authority (the ACMA) received a complaint concerning the program It’s a Knockout (the Program), broadcast by ATV on 27 November and 4, 11 and 18 December 2011. The complainant alleged that the advertisements and promotions for McDonald’s, which were shown during the Program, failed to comply with the Code. The complainant initially made a complaint to ATV about this matter, in its letter sent on 22 December 2011. The complainant did not receive a response from ATV, and made this complaint to the ACMA. The ACMA investigated this complaint under section 149 of the Broadcasting Services Act 1992. The complaint raised issues of compliance with clause 1.18 (presentation of broadcast material), clause 6.24.3 (promotion of products and services in programs directed to children) and clause 7.11 (responses to Code complaints) of the Code.

The Program The Program is an Australian version of a game show. Episodes of the Program were broadcast on Sunday evenings at 7.30pm for one hour. The Program is hosted by HG Nelson, Brad McEwan and Charli Robinson. Four teams of 15 people compete for a trophy and $15,000 to be donated to their nominated charity. The teams comprised:  Queensland surf lifesavers  NSW paramedics  Victorian firefighters  Team Maccas (representing McDonald’s Australia)

The game show is in the form of a round robin competition, where in each episode of the Program two teams compete in a series of challenges or games. These challenges or games are held in an indoor stadium/arena, in front of a live audience. A winner is decided at the end of each episode. Episodes one to four of the Program were classified ‘PG’, and were broadcast by ATV on 27 November and 4, 11 and 18 December (respectively). In response to the ACMA’s investigation, ATV provided DVD copies of episodes one to four of the Program. The ACMA had regard to this material in its investigation.

Issues The issues examined in the ACMA’s investigation concerned:  The presentation of broadcast material during the Program (with reference to clause 1.18 of the Code);  Whether the Program is mainly directed to children (with reference to clause 6.24.3 of the Code); and  ATV’s handling of the complaint (with reference to clause 7.11 of the Code).

ACMA Investigation Report – It’s a Knockout broadcast by ATV on 27 November and 4, 11 and 18 December 2011 2 These issues and the reasons for the ACMA’s decision are discussed below.

Reasons for decision

Ordinary reasonable viewer of the program In assessing the Program against the Code, the ACMA considered the meaning conveyed by the material. This was assessed according to the understanding of an ‘ordinary reasonable viewer’. In Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164– 167, the ordinary reasonable viewer is described as:

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.

Once this test was applied to ascertain the meaning of the broadcast material, the ACMA considered whether episodes one to four of the Program breached the Code.

The presentation of broadcast material during the Program The complainant submitted that McDonald’s promotional material featured in episodes one to four of the Program and was not clearly distinguishable from program content, particularly to children. Clause 1.18 of the Code states:

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.

ATV advised that the Program was a joint venture between Network Ten and McDonald’s Australia (McDonald’s). The parties equally shared the production costs for the Program. As part of McDonald’s funding contribution under the joint venture, McDonald’s received in- program exposure. This included McDonald’s signage in the stadium in which the challenges or games were filmed. ATV stated that McDonald’s in-program exposure benefitted Network Ten in terms of production funding. The ACMA is satisfied that in these circumstances, ATV received ‘payment’ for material in the Program, for the purposes of clause 1.18 of the Code, in the form of reduced production costs of the Program for its associated network. The ACMA considers that the ordinary reasonable viewer would understand that the in- program exposure (as shown in episodes 1 to 4 of the Program) referred to McDonald’s, having regard to the Program as a whole.

ACMA Investigation Report – It’s a Knockout broadcast by ATV on 27 November and 4, 11 and 18 December 2011 3 The presenters expressly referred to McDonald’s during the Program. In episode 1, one of the presenters stated ‘We’re back, thanks to McDonald’s; well the show is back’. In episode 4, one of the presenters also stated ‘Welcome back to It’s a Knockout and it’s back on your TV all thanks to McDonald’s’. McDonald’s are also referred to in the title of the teams’ scoreboard (the ‘McDonald’s leader board’: episode 2) and in replays (the ‘McDonald’s replay’: episode 3). The ordinary reasonable viewer would be familiar with McDonald’s. As such, the ordinary reasonable viewer would recognise the McDonald’s yellow brand, the ‘Golden Arches’, and advertising slogan ‘I’m lovin’ it’ in the Program. The McDonald’s yellow brand and advertising slogan could be seen printed on barriers and banners around the stadium in which the challenges or games took place, in all four episodes. McDonald’s is also referenced during the Program in the form of one of the teams’ name. One of the teams competing in the Program is ‘Team Maccas’: the term ‘Maccas’ is a colloquial name for McDonald’s. This team competed during episodes 2 and 4, and could also be seen at the beginning of all four episodes when all teams were welcomed into the stadium. The association between McDonald’s and the yellow brand is further referenced and reinforced when ‘Team Maccas’ enter the stadium wearing hats with the ‘Golden Arches’ printed on them at the beginning of each episode. The ordinary reasonable viewer would also recognise the McDonald’s characters, Ronald McDonald, Birdie, Grimace and the Hamburglar, in the Program. In episode 2 of the Program, McDonald’s characters could be seen cheering the teams at the finish line in one challenge and later amongst audience members in the stands. McDonald’s characters were also cheering during one challenge in episode 3 and from the stands amongst audience members in episode 4. McDonald’s are also expressly referred to in the end credits of each of the four episodes of the Program, which state: ‘Consideration for production of this program is provided by McDonald’s’. The ‘Golden Arches’ appears with this statement. Network Ten submitted that no actual McDonald’s products or services were promoted or endorsed in the Program. The ACMA considers, however, that the Program contained material promoting McDonald’s products and services. The Macquarie Dictionary defines ‘promotion’ (relevantly) as activity, especially in advertising, designed to increase public awareness of, and hence the sales of a product. The references to McDonald’s during episodes 1 to 4 of the Program would attract public attention to the McDonald’s brand. The McDonald’s characters, ‘Golden Arches’ and advertising slogan are also associated with the McDonald’s brand. These references to McDonald’s increase recognition of the brand and brand awareness. Brand awareness refers to a customer’s ability to recall and recognise a brand under different conditions and to link the brand name, logo and characters to the commercial products and services sold under the brand name.

ACMA Investigation Report – It’s a Knockout broadcast by ATV on 27 November and 4, 11 and 18 December 2011 4 McDonald’s is widely known and recognised as a fast-food restaurant chain and provider of associated commercial products and services. The references to McDonald’s in the Program as described above, constitutes the promotion of, or increases the public awareness of, the McDonald’s brand, which because of McDonald’s wide brand recognition, allows people to associate the McDonald’s references with the commercial products and services it offers, such that ultimately this increases sales of McDonald’s products and services. The complainant submitted that this promotional material featuring in the Program was not clearly distinguishable from program content, particularly to children. The ACMA does not consider children to be the ordinary reasonable viewer of the Program. ATV advised that the television audience for the Program was primarily adult. Based on data provided by OzTAM, 78.0% of viewers were 14 years of age or older (using a weighted average across episodes 1 to 4 of the Program). In addition, for viewers under 14 years of age, 78% were watching with an adult. Accordingly, when considering whether the material in the Program is ‘clearly promoting a product or service’, the ACMA had regard to what the ordinary reasonable ‘adult’ viewer would understand of the material broadcast. The ACMA considers that the McDonald’s material in the Program is distinguishable from other material, as it is clearly promoting the McDonald’s products and services. The McDonald’s promotions in the Program are not subtle, but obvious to the ordinary reasonable viewer. McDonald’s is clearly labelled or branded throughout the Program. The presenters of the Program refer to it being brought to the viewer by McDonald’s, and McDonald’s is referred to in the end credits. The Program is a not a drama program, but is in a game show/competition format. The ordinary reasonable viewer is aware that it is common for advertising and sponsorship material to appear around sporting stadiums. The ACMA considers that the ordinary reasonable viewer would therefore understand from the multitude of McDonald’s references throughout the Program that McDonald’s is a sponsor (of some description) of the Program, and that these references are intended to promote McDonald’s products and services. Accordingly, the ACMA finds that ATV received payment for material in the Program, and that material is distinguishable from other program material, because it is clearly promoting McDonald’s products and services. ATV did not, therefore, breach clause 1.18 of the Code.

ACMA Investigation Report – It’s a Knockout broadcast by ATV on 27 November and 4, 11 and 18 December 2011 5 Is the Program mainly directed to children? The complainant submitted that the Program is mainly directed at children, that McDonald’s promotions in the Program have not been presented in discrete segments, and that the Program does not clearly bring McDonald’s sponsorship to the attention of children. Clause 6.24.3 of the Code states:

6.24 In any program mainly directed to children:

6.24.3 material in the program which recommends or promotes products or services must be presented as discrete segments, and its sponsorship must be advised to viewers in a way that will be clear to them;

The ACMA accepts that the Program could appeal to children. There are children in the live audience, the set uses vibrant colours, and the challenges/games that the teams participate in are light-hearted and fun. The complainant also advised that the Program was the most watched television program (per week) by children aged 0 to 12 years, in the weeks beginning 27 November, and 4 and 11 December 2011. Nevertheless, the ACMA does not consider that episodes 1 to 4 of the Program were mainly directed to children. The ACMA considers the Program to be a game show of general appeal, appealing to both adults and children. Children are not the central focus or driver of the Program; all participants in the four teams are adults. Those adults are representing their workplaces in the competition and have nominated charities for any prize money to be donated to. While children appear in the stadium, cheering from the stands, there appear to be few children present amongst a predominantly adult crowd. The complainant noted that fun language is used in the Program. The challenges/games are given lively names, such as ‘What’s Cookin’ Good Lookin’’. The ACMA also considers the language used by the hosts in discussions to be humorous, but not mainly directed at children. The language used in the Program has broader appeal, for example, at one point during episode 4, one of the hosts appears to struggle to recall the term ‘treadmill’ and instead refers to the object as a ‘horizontal escalator’. Further, the issues discussed while the games/challenges are undertaken are not child-focused or concern matters children could specifically relate to. For example, the hosts discuss the areas in which various participants are studying or participants other interests. While the hosts occasionally direct comments to child viewers, such comments are very infrequent. The complainant noted that one of the hosts of the Program, Charli Robinson, is a former member of Hi-5, a preschool children’s program and music group. This is not indicative, however, that the Program is mainly directed at children. Ms Robinson does not appear in the Program in her capacity as a ‘former Hi-5 member’. ATV also advised that since leaving Hi-5, Ms Robinson has undertaken a number of activities in non-children’s television programming.

ACMA Investigation Report – It’s a Knockout broadcast by ATV on 27 November and 4, 11 and 18 December 2011 6 Having regard to all of these factors, the ACMA considers that episodes 1 to 4 of the Program were not mainly directed to children. The ACMA appreciates that children may like the Program and many may watch it, however clause 6.24.3 of the Code may only be considered in relation to programs ‘mainly directed to children’. Accordingly, the ACMA finds that ATV did not breach clause 6.24.3 of the Code in this regard.

ATV’s handling of the complaint The complainant sent a complaint regarding this matter to ATV, by regular post, on 22 December 2011. The complainant did not receive a reply from ATV. Clause 7.11 of the Code states:

Subject to clause 7.15, a licensee must provide a substantive written response to a complaint that satisfies the requirements in clause 7.2.

ATV advised that is has no record of receiving the complaint and was not aware of this matter until it was contacted by the ACMA in this investigation. Without receiving the complaint, ATV could not provide a response to the complainant. ATV also noted it has a strong record of compliance in relation to handling complaints under the Code. The ACMA accepts the complainant’s advice that it sent the complaint to ATV. However, the complaint was sent by regular post and not by a method (permitted under the Code) that would allow the item to be tracked or that requires a signature from the recipient on receipt. There is no evidence before the ACMA that ATV received the complaint. Based on the available evidence, it appears the complaint was not received by ATV. Accordingly, the ACMA finds that ATV did not breach clause 7.11 of the Code for not providing a substantive written response to the complaint.

ACMA Investigation Report – It’s a Knockout broadcast by ATV on 27 November and 4, 11 and 18 December 2011 7