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Re Benson and Hedges Company Pty Limited; Rothmans of Pall Mall (Australia) Limited and Others v the Australian Broadcasting Tribunal [1984] FCA 292 (10 October 1984)
FEDERAL COURT OF AUSTRALIA
Re: THE BENSON AND HEDGES COMPANY PTY. LIMITED; ROTHMANS OF PALL MALL (AUSTRALIA) LIMITED AND OTHERS And: THE AUSTRALIAN BROADCASTING TRIBUNAL Nos. G172, G173, G174 and G175 of 1984 Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Fox J.
CATCHWORDS
Administrative Law - Judicial Review - Application for review of decisions of Australian Broadcasting Tribunal that certain telecasts were prohibited advertisements - Sponsorship announcements by tobacco companies - Whether advertisements for, or for the smoking of, cigarettes or cigarette tobacco - Live telecast of Rugby League Grand Final - Whether contained prohibited advertising matter - Whether advertising matter an "incidental accompaniment" of the broadcasting of other matter - Decision to which the Act applies - Person aggrieved.
Administrative Decisions (Judicial Review) Act 1977 - ss.5, 6.
Broadcasting and Television Act 1942 - s.100.
HEARING
SYDNEY 10:10:1984
ORDER
1 IN EACH OF THE MATTERS NO'S. G172, G173 AND G175 THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant(s) pay the respondent's costs of the application.
IN MATTER NO. G174 THE COURT ORDERS THAT: 1. The application be allowed in part. The decision of the Australian Broadcasting Tribunal be set aside.
2. It be declared that:
(a) The telecast of the football match did not involve a breach of s.100(5A) of the Broadcasting and Television Act 1942.
(b) The telecast of the dancing performance which took place for about ten minutes before the commencement of the football match was in breach of s.100(5A) of the Act.
3. The respondent pay half the applicant's costs of this application.
4. Liberty to apply.
DECISION
Four applications under ss.5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 are being heard together by consent. They all raise questions concerning the construction of s.100(5A) and s.100(10) of the Broadcasting and Television Act 1942 ("the Act"). These sub-sections were introduced at the same time in 1976, by way of amendments to the Act. I set out the whole section, as it now is: "100.(1) Subject to this Act, a licensee may broadcast or televise advertisements.
(2) A licensee intending to broadcast or televise advertisements shall publish particulars of his advertising charges.
(3) A licensee shall not, without reasonable cause, discriminate against any person applying for the use of his advertising service.
(4) A licensee shall comply with such standards as the Tribunal determines in relation to the broadcasting or televising of advertisements.
(5) A licensee shall not broadcast or televise advertisements on a Sunday except in such manner and in accordance with such conditions as the Tribunal determines.
2 (5A) A licensee shall not broadcast or televise an advertisement for, or for the smoking of, cigarettes or cigarette tobacco.
(6) A licensee shall not broadcast or televise an advertisement relating to a medicine unless the text of the proposed advertisement has been approved by the Director-General of Health or, on appeal to the Minister under this section, by the Minister.
(7) The Director-General of Health may delegate to a medical officer of a State his power under this section to approve the text of an advertisement.
(8) Any such delegation is revocable in writing at will and does not prevent the exercise of a power by the Director-General of Health.
(9) A person may appeal to the Minister from any decision of the Director-General of Health or of a delegate of the Director-General of Health under this section.
(10) A reference in sub-section (5), (5A) or (6) to the broadcasting or televising of advertisements or of an advertisement shall be read as not including a reference to the broadcasting or televising of matter of an advertising character as an accidental or incidental accompaniment of the broadcasting or televising of other matter in circumstances in which the licensee does not receive payment or other valuable consideration for broadcasting or televising the advertising matter."
2. The applicants, The Benson & Hedges Company Pty. Limited and Rothmans of Pall Mall (Australia) Limited sell cigarettes. Their names are virtually household words in this connection. No television licensee is a party to any of the proceedings. Although I raised the matter, the parties wished to proceed without the addition of the licensees. It is a matter which has concerned me, but, in view of the attitude of the parties, I have not taken any course to secure the addition of the licensees as parties (see s.12 of the Administrative Decisions (Judicial Review) Act 1977).
3. The respondent Tribunal, having carefully considered the matter, and having received many submissions with regard thereto, issued on 29 December 1983 a public statement, called a policy statement (POS 07), expressing its views on the operation of sub-sections (5A) and (10). Under the heading "ENFORCEMENT" at the end of the statement there appears the following:
"4.1 It is an offence under section 132 of the Act to fail to comply with sub-section 100(5A), rendering a licensee liable to a fine not exceeding $10,000.
4.2 By virtue of section 129 of the Act, sub-section 100(5A) is a condition of a licence; any breaches will be taken into account at the next occasion
3 on which the performance of the licensee is reviewed: see sub-paragraphs 86(11B)(c)(iii) and 88(1)(a)(iii).
4.3 This Policy Statement is intended to avoid the need for more specific action. However, the Tribunal points out that failure to comply with the letter and the spirit of sub-sections 100(5A) and (10) may lead to the determination of Standards relating to incidental cigarette advertising."
4. The Tribunal is given power in s.16(1) of the Act "to grant, renew, suspend and revoke licences" (para. (a)); "to determine the standards to be observed by licensees in respect of the broadcasting or televising of programs" (para (d)), and "to determine the conditions subject to which advertisements may be broadcast or televised by licensees" (para. e)).
5. On 15 March 1984 the Tribunal issued a news release which, besides containing some comments, summarises the situations to which the present applications relate, and one concerning Redhead Matches which I will include but which is not the subject of the applications:
"In the case of Redheads Matches, the Tribunal found:
'.. the advertisement concerns the use of matches to light cigarettes ... and the cigarette smoking, and the lighting of the partner's cigarette is presented as a central feature of the cosy romantic atmosphere.'
Of the Benson & Hedges cricket item, the Tribunal says:
'An advertisement placed by Benson & Hedges (rather than the relevant sporting body) which gives as much prominence to promoting the Benson & Hedges Company as this does can reasonably be assumed to be intended to promote ... the only product universally identifiable with that company, namely cigarettes.'
Similar reasons applied to an advertisement for the Australian Ballet, featuring sponsorship by Benson & Hedges.
The Tribunal found the use of insets featuring the Winfield name in advertisements for the cinema film 'Aussie Assault':
'...is apparently intended to promote, or attract goodwill to, the name Winfield, and, by extension, the only product bearing the Winfield name.'
4 The Tribunal found the program, televised by ATN-7 of Sydney, of the 1982 Rugby League Grand Final, contained matter of an advertising character:
'Directly alongside the field, some distance on from the perimeter, where a large number of A-frames, bearing the slogan 'Anyhow have a Winfield 25s' ... the Winfield A-frames were apparently placed so as to ensure maximum television exposure.
... In the Tribunal's opinion, the dance display (featuring dancers dressed in Winfield colours waving flags featuring the Winfield sign) was, taken as a whole, also advertising matter for Winfield cigarettes...'
A radio advertisement for Benson & Hedges World Series Cricket was also found not to contravene the ban because:
'... The mere mention of the name Benson & Hedges in the absence of additional promotional matter is insufficient to lead to the conclusion that the advertisement seeks to promote cigarettes.'
The Tribunal also considered an advertisement for the House of Dunhill, but decided, on the casting vote of the Chairman, that it was not an advertisement for cigarettes or smoking in the terms of the Act.
Late last year the Tribunal issued a Policy Statement on Advertising Matter Related to Cigarettes or Cigarette Tobacco. These are the first decisions to follow the determination of policy on the application of the law.
Adherence to the provisions of the Act is a condition of licence for all commercial and public radio and television stations. Failure to observe the provisions of the Act will be considered by the Tribunal as part of the regular review of each licence, when licensees concerned will have an opportunity to present evidence and submissions on the circumstances surrounding the broadcasts before the Tribunal makes any findings with respect to the licences."
6. Two of the cases (the "Field of Battle" sequence, and the 1982 Rugby League Grand Final) were telecast in 1982, the other two ("Aussie Assault" and the Australian Ballet sequence) in 1984.
7. More detailed documents were sent out, apparently to the applicant cigarette companies, among others, and to these I will return. I have seen on screen video tapes of the sequences complained of, and thus have had the benefit of seeing a replay of much of the Rugby League Grand Final of 1982. The tapes were shown in Court and have since been re-run for me in chambers.
5 8. The policy statement (POS 07) was intended to be informative and instructive and the Tribunal has in it attempted to express at some length and in some detail the meaning of the various provisions of sub-ss. 100(5A) and 100(10). This and associated documents show how the Tribunal understands and will apply those provisions. Such a meritorious approach to the discharge of its functions should not be met with carping or captious criticism. Fortunately, it is not my role to attempt any similar exegesis. My function is to examine each decision and, put shortly, to see whether it involved an error of law. The proper legal requirements and boundaries allow wide scope for the finding of facts, and arriving at conclusions upon them, but these are matters for the Tribunal.
9. The two sub-sections replaced an earlier provision (s.100A) which was intended to be less severe in its operation and which required the licensee to cause each advertisement for cigarettes or cigarette tobacco to be followed immediately by a separate and distinct statement by image and sound: "Medical authorities warn that smoking is a health hazard". Counsel for the applicants places emphasis on this earlier legislation as indicating what must have been then, and now, intended by "advertisement". An advertisement, for the purpose of the earlier legislation must have been, it is submitted, something distinct and deliberative, involving foreknowledge of what was to appear and be said. The parliamentary material tendered certainly indicates that the 1976 amendments were the second stage in a two-part programme commenced in 1972. There are, I think, questions about the construction and operation of the earlier provision, but it does not follow that the connotation is the same. In fact, the argument flows from the requirement concerning the insertion of the statement to which I have referred, and that statement is no longer required, or appropriate. Under the existing sub-sections I do not think the argument has relevance, except perhaps in relation to surprise advertisements forced into view by strangers. So far as concerns three of the programmes now under consideration, the question is in any event academic, because there was in those cases full foreknowledge and pre-planning. In relation to the fourth, the football match, the stationary advertising material was there, and the television station can be presumed to have known in advance the intended programme, including the preliminary dance display, although perhaps not the full advertising impact of the latter. In any event, its nature was soon evident. The presence of other cigarette advertising material around the ground, and within its perimeter was readily seen. On the facts, there can be no doubt that the telecaster (ATN 7) was well aware beforehand that there was much cigarette advertising material on the ground, and that, if it did not know the advertising nature of the dancing display beforehand, that soon became readily apparent to it.
10. I perhaps should add in relation to this argument that I have not been made aware of what censorship interval, if any, is available to a telecaster which is portraying a live show, or whether in the present case there was any replay of the football match.
11. It is submitted that sub-ss. (2) and (3) of s.100 indicate that an advertisement for the purposes of the section is one provided for in a consensual arrangement between television licensee and advertiser. This would doubtless be normal, but I believe that it is not the exclusive situation to which the sub-sections, and particularly sub-ss. (5A) and (10) relate. The policy is to ban the television (or broadcast) of cigarette advertisements. Two of the present cases show how there can be mutually advantageous arrangements through third parties without there being an agreement directly between the seller of cigarettes and the licensee. In fact, there had to be agreements with the television companies for the screening of all the telecasts. The only one in which the context of cigarette advertising was, as it were, left at large was that of the grand final football match. I have referred, and will refer again, to the situation in that connection.
12. Sub-section (6) poses problems of its own. It prohibits the televising of an advertisement relating to a medicine unless the text of the proposed advertisement has been approved by the Director-General of Health (or a delegate (sub-s. (7)). Neither sub-s. (10) nor any similar provision applies thereto. Probably all that need be said in relation to it is that it indicates there can be an "advertisement", although its text has not received prior approval. From the practical viewpoint there doubtless has to be special care shown before an advertisement for medicine is allowed to be shown on screen.
13. In seeing whether the sub-sections apply, it is necessary to determine whether there is an advertisement (for, or for the smoking of cigarettes or cigarette tobacco) and, if there is such an advertisement, it is
6 necessary to decide its extent, in terms of time of showing, and what is shown. An advertisement may comprise a sequence, or one frame only, and nice questions of fact may arise in deciding where a particular advertisement begins and where it ends. Sub-section (10) shows that it remains an advertisement, notwithstanding that it is incidental, or peripheral to other matter. An advertisement which is an incidental accompaniment to other matter offends against sub-s. (5A) unless there is an absence of consideration passing to the licensee. It is of course necessary to be able to identify the "other matter".
G172 of 1984:
14. I set out below the decision and reasons in relation to the subject of application G172 of 1984:
"Advertiser: Benson and Hedges Company
Title: Test Cricket - 'Field of Battle' (Key No. 016.T.606)
Description: Two medieval knights are shown in a slow motion sword fight. The visual content progresses to show cricketers in the same stylised fashion, with the voice of track echoing the 'field of battle' motif. The final part of the advertisement includes extracts from previous Test matches (including Benson and Hedges hoardings), and concludes with a final shot of the Benson and Hedges coat of arms and distinctly lettered name in gold on black, together with a voice over stating 'proudly sponsored by the Benson and Hedges Company'.
Decision: The sponsorship announcement is an advertisement for cigarettes within the meaning of sub-section 100(5A) of the Broadcasting and Television Act 1942.
Reasons: The issue in this advertisement is whether the sponsorship announcement including the use of the Benson and Hedges arms and colours breaches sub-section 100(5A). The name and arms of the Benson and Hedges Company are, in the public mind, associated almost exclusively with cigarettes, notwithstanding some other activities undertaken by Benson and Hedges. An advertisement placed by Benson and Hedges (rather than the relevant sporting body) which gives as much prominence to promoting the Benson and Hedges Company as this advertisement does can reasonably be assumed to be intended to promote, or obtain goodwill for, the only product universally identifiable with that company, namely cigarettes. It should be noted that the simple mention of the name Benson and Hedges as part of the title of the event would not itself lead to this conclusion in the absence of the strong visual images at the end of the advertisement which closely parallel (although in
7 'negative') the design of the Benson and Hedges cigarette packet.
The comments of FACTS Commercials Acceptance Division were sought. In a very brief response, FACTS advised that senior counsel was of the opinion that the advertisement did not infringe sub-section 100(5A), and it was therefore not proposed to withdraw acceptance for it. No details of counsel's advice were provided.
The comments of station TVW-7 Perth, which had televised the advertisement, were also sought. In a brief response, TVW stated simply that the advertisement was 'manifestly not an advertisement for, or for the smoking of, cigarettes or cigarette tobacco. This view applies with or without regard to the application of the policy statement POS-07'.
The Tribunal is of the opinion that a reasonable person would regard the sponsorship announcement, in all the circumstances, as seeking indirectly to promote Benson and Hedges cigarettes."
15. It is not disputed that the respondent has made a decision (s.5), or has engaged in conduct for the purpose of making a decision (s.6) within the meaning of the definition of "decision to which the Act applies" in s.3(1) of the Administrative Decisions (Judicial Review) Act. As I have to be satisfied of the jurisdiction of the Court to deal with the application, I should add that, having in mind the status and powers of the Tribunal, the nature and content of what it called its "decision" and the likely immediate and continuing effect of that decision, I am satisfied that the Act has application.
16. Counsel for the respondent argued that the applicants are not persons aggrieved within the meaning of the Act insofar as they have not, as a result of the Tribunal's decisions, any greater grievance than any other member of the community. I do not agree with this submission. The decisions appealed from, if valid, have the effect of restricting the advertising avenues of the cigarette companies and operate as restraints on the activities of the other applicants, or what they may permit, with possible consequences for the sponsorship arrangements which may in the future be made with them. The matter is to be viewed at the time the application for review is made, and is not dependent on the outcome of the review. The applicants were aggrieved, just as a person is aggrieved, for appeal purposes, who is convicted or sentenced for an offence.
17. Statements of fact are contained in the reasons given in association with the various decisions, but these have not been challenged.
18. It is necessary to see whether an error of law attended the making of the decision or the conduct in question. It is not necessary in the circumstances, in this or the other cases, to pursue the question whether they come more properly under s.5 or s.6.
19. There is no doubt that the sequence in question in this case (lasting sixty seconds) was procured as an advertisement for Benson and Hedges. The television scipt is in evidence and what was seen and said, is perhaps best indicated by setting it out:
"TELEVISION SCRIPT <______
8 CLIENT W.D.&H.O. WILLS PRODUCT BENSON AND HEDGES TITLE B&H BATTLE DM.ras LENGTH 60secs JOB No. 016.T.606 DATE TYPED 31st MAY 1984
VIDEO AUDIO
MUSIC UNDER.GUSTAV HOLST - PLANETSUITE MARS THE BRINGER OF WAR
SLOW MOTION SURREALISTIC MVO: Since time immemorial SEQUENCE. OPEN ON TWO man has indulged in the KNIGHTS DRESSED IN FULL art of combat ... ARMOUR FIGHTING WITH Has strived for suprem- SWORDS. THE ATMOSPHERE acy in the field of IS MISTY, THEY APPEAR battle. Now England ALMOST IN SILHOUETTE and Australia continue EXCEPT FOR THE SWORDS the battle started 100 THAT GLINT AS THEY years ago, when the CONTACT. burning of a wicket MATCH DISSOLVE TO TWO at Lords gave birth to CRICKETERS WITH HELMETS a glorious tradition of AS THIS SURREALISTIC tradition of conflict. SEQUENCE DEVELOPS. THEY ... The Battle for the ARE GOING THROUGH THEIR Ashes. STROKES, AND THEIR IMAGES APPEAR TO OVERLAP AS IF IN BATTLE. THE CRICKET BATS ARE ACTUALLY LUMIN- OUS AND CREATE A STROBE AFFECT (sic). THE CRICKETERS ARE IN VIRTUAL SILHOUETTE AGAINST MISTY BACKGROUND. THE SHOTS WOULD BE MONTAGED. DISSOLVE TO M.C.U. OF ONE PLAYER BATTLING INFRONT (sic) OF LUMINOUS STUMPS. CUT TO BOWLER RUNNING IN Champion versus WITH LUMINOUS CRICKET champion ... BALL WHICH AS IT IS Legend versus legend THROWN TOWARD CAMERA ... LEAVES TRACER IMAGE AS No quarter asked, no IT MOVES THROUGH AIR. CUT quarter given. TO LUMINOUS STUMPS AS BALL EXPLODES WICKET. CUT TO SPLIT SCREEN OF BRITISH This summer the Battle AND AUSTRALIAN FLAG. THEY for the Ashes continues PULL APART TO REVEAL LIVE in the first Benson and ACTION HIGHLIGHTS FROM Hedges Test. PREVIOUS TESTS. SWEEP SHOTS. CATCHES, CLEAN BOWLS. SFX: CROWD ROAR
9 MVO: The Ashes Centenary. Cricket at its best. BRITISH AND AUSTRALIAN Proudly brought to you FLAGS MOVE ON FROM LEFT by the Benson and AND RIGHT SCREEN AND BUTT Hedges Company. UP TO CLOSE SEQUENCE. REPEAT WICKET EXPLOSION SEQUENCE. SCREEN TURNS TO BLACK. BRING UP BENSON AND HEDGES LOGO FOLLOWED BY VENUE DETAILS."
20. Action from an actual test cricket match was portrayed, in the way and to the extent indicated. It was apparently from the first Benson and Hedges Test match, at the Western Australian Cricket Ground, played in November 1982. The evidence is that it was designed to advertise cricket for that season. Three features could possibly have been relied upon as depicting to the viewer the relevant advertising nature of the whole sequence. They were all that was planned. One is the reference (see under "audio") to the "first Benson and Hedges Test". Then there are the Benson and Hedges logo (in contrasting gold and black, for viewers with colour television) and the concluding announcement "Proudly brought to you by the Benson and Hedges Company".
21. The Tribunal made a decision in relation to the sponsorship announcement as accompanied by the Benson and Hedges logo. It saw this in the context of the whole sequence. I do not doubt that the viewer would understand the announcement as being an advertisement for "Benson and Hedges". The word "cigarette" was not mentioned. It is submitted that what was being advertised was the corporate image, and not cigarettes. It is pointed out that there are values attached to the name, apart altogether from its association with cigarettes. They may include, for example, its corporate and financial standing, its power and influence and its reputation as a donor to, or sponsor of, worthy causes. I do not doubt that there can be a "corporate image" which is reasonably distinct from the products sold or produced by the corporation. The question is, however, whether it was reasonably open to the Tribunal to conclude in the present case that the products also were being advertised. It seems to me that the answer to this question must be a clear affirmative.
22. The Tribunal did not attempt to make its decision dependent on its own subjective view as to whether there was an advertisement but expressly referred the matter to the opinion of the reasonable person, which, of course, it had to assess. In doing so it can be taken to have applied the meaning given to "advertisement" in its policy statement. I do not think a precise or comprehensive definition of that term can be arrived at. The one expressed is a little elliptical in its closing lines, but can, I think, be taken as a fair working definition. It was proferred in order to offer guidance, and in relation to a particular case may, inevitably, be found imperfect. Similarly, the discussion of the meaning and significance of "for" in sub-s. (5A) is not to be quibbled at.
23. I do not think that in this case one comes to the question whether there was an incidental accompaniment. The Tribunal was entitled to say that the question was whether s.100(5A) applied. Apart from questions of construction, with which I have dealt, nothing has been pointed to in the reasons given for the particular decision to show it was erroneous, and the reasons are not invalidated by an irrelevant consideration or failure to take into account a relevant consideration.
24. There is therefore no basis for relief in relation to the decision, and application G172 should be dismissed.
G173 of 1984:
10 25. This application relates to the Australian Ballet sequence sponsored by Benson and Hedges, referred to in the news release set out earlier in these reasons. The decision as framed in more detail was as follows:
"Advertiser: Benson and Hedges Company
Title: Australian Ballet (Key No. 017.T.006)
Description: A ballerina explains the forthcoming program of the Australian Ballet. The advertisement concludes with a final shot of the Benson and Hedges coat of arms and distinctly lettered name in gold on black, together with a voice over stating "proudly sponsored by the Benson and Hedges Company".
Decision: The sponsorship announcement is an advertisement for cigarettes within the meaning of sub-section 100(5A) of the Broadcasting and Television Act 1942.
Reasons: This advertisement contains a sponsorship announcement which is identical to that attached to the Test Cricket advertisement, 'Field of Battle'. For the reasons expressed in relation to that advertisement, the Tribunal is of the opinion that a reasonable person would regard the sponsorship announcement, in all the circumstances, as seeking indirectly to promote Benson and Hedges cigarettes."
26. This sequence lasted fifty-five seconds. It was devised as an advertisement, but it would in part, at least be taken as an advertisement for the ballet. By agreement, a large sum of money was payable (and presumably paid) to the Australian Ballet Foundation as a sponsorship fee in January 1984, several months before the production in question. In return for the sponsorship fee the Benson and Hedges Company was to be provided, among other benefits, with accreditation as the major sponsor in all promotional literature and media advertising initiated by the Australian Ballet during a specific season, and in a major media campaign to be undertaken by the latter in order to maintain subscription bookings and otherwise. The total expenditure in the production and scheduling of the campaign was to amount to three-quarters of the sponsorship fee.
27. The sequence differs from the "Field of Battle" advertisement in that it comprises, in large part, a display of ballet dancing. This performance was, of course, rather short. However, it was only the sponsorship announcement that the Tribunal treated as an advertisement for cigarettes. In my view it was open to the Tribunal to reach the conclusion it did, and there was no invalidating circumstance associated with the reasons it gave.
28. This application should therefore be dismissed.
G174 of 1984:
29. This application relates to the 1982 Rugby League Final sequence earlier referred to. It involves closer consideration of sub-s. (10). The document containing the decision is as follows:
11 "Program: 1982 NSW Rugby League Grand Final (Winfield Cup) - live telecast Station: ATN-7 Sydney
Description: Directly alongside the field, some distance in from the perimeter, were a number of large A-frames bearing the words in red, white and gold: 'Anyhow have a Winfield 25's'. On the half-way line, the A-frame said 'Winfield Cup. Making the big game bigger'. Similar advertising signs were positioned on the stands behind the goalposts, and a large Winfield sign in the shape of the cigarette packet was stained into the grass behind each goalpost. Prior to the commencement of the game, a dance display was televised. The dancers were dressed in red and white and waved flags bearing the red and white 'V' design associated with the Winfield packet. The climax of the display showed an aerial shot of a large flag bearing the words 'Winfield Cup' in red and white, unfurled parallel to the ground, and rotated slowly by the dancers to the accompaniment of that section of Tchaikowsky's Fifth Symphony which is commonly recognised as the Winfield theme.
Decision: The telecast of the 1982 NSW Rugby League Grand Final contained matter of an advertising character for cigarettes within the meaning of sub-section 100(5A) of the Broadcasting and Television Act 1942 which was not accidental or incidental to the telecast of the Grand Final.
Reasons: The A-frames bearing the words "Anyhow have a Winfield 25's' were matter of an advertising character for Winfield cigarettes. In the Tribunal's opinion, the dance display prior to the match was, taken as a whole, also advertising matter for Winfield cigarettes, although the Tribunal would not regard the individual elements of the display (i.e. the red and white dancers and flags, the large 'Winfield Cup' flag, and the musical theme) as sufficient to constitute advertising matter for Winfield cigarettes in the absence of all the other elements. The central issue in respect of this telecast is whether the exemption in sub-section 100(10) applies. It is not proposed to canvass the issue of valuable consideration since the purpose of this decision is not to record a breach by the licensee, but to express a view on the content of the telecast. It is clear that the televising of the advertising matter was not 'accidental': see POS 07, paragraph 3.3.
12 The question comes down to this: was the televising of the advertising matter 'incidental' to the televising of the rugby league match itself? The criteria which the Tribunal considers must be applied are set out in paragraph 3.4 of POS 07. A judgement must be made as to whether the advertising matter dominates or forms a substantial feature of the program, scene or segment, having regard to the emphasis, tone and frequency or repetition of the advertising matter in question.
In the Tribunal's opinion, it is clear that the advertising character of the dance display could not be regarded in any way as 'incidental'. On the contrary it was completely self-contained and separated from the match itself.
The Winfield A-frames surrounding the field were apparently placed so as to ensure maximum television exposure. The Tribunal noted that most of the signs were on the side of the field facing the camera locations. The coverage by ATN showed frequent and lengthy close-ups of the A-frames and other signage around the field, sufficient for the Tribunal to conclude that it could not be regarded as 'incidental', whether or not ATN intended it to be included in the telecast.
This conclusion was reached both in respect of particular segments of play, and the telecast as a whole. (The emphasis is mine.)
The comments of ATN were sought by the Tribunal. The station made the following points:
'Executives of ATN were aware that many advertising signs were located at this ground. It is not in the interest of a television station to give any long or repeated television exposure to any of these signs (whether for cigarette products or not). Nevertheless, as the most important obligation the station has is to give a comprehensive coverage of the game being played, it is impossible to avoid exposure of many of the signs.
You have pointed out that some of these signs were for the product 'WINFIELD'. We were not particularly aware of this advertisement nor any other, so cannot dispute your claim.
13 ATN received no reward, either financial or otherwise, to induce us to include exposure of this or any other advertising hoarding in our telecast.
Part of the coverage of this important television program was the lead up to the game. We were aware that this would include several spectacular entainment (sic) items. In pre-production briefings we were made aware of broad details such as, there would be sky-divers and marching girls. We were not aware of the point of landing of the skydivers nor the actual choreography of the marching girls.
As it transpired, the marching girls were dressed in one of the Winfield colour schemes and part of Tchaikovsky's (sic) Fifth Symphony was played. But let us face it - Winfield colours include red & white, blue & white, and green & white - these are also the colours for three of the teams in the Sydney competition. Tchaikovsky's Fifth Symphony had achieved some significant public acceptance before Winfield's sought to borrow it.'
The Tribunal noted particularly the station's assertion that in providing a comprehensive coverage of the game, 'it is impossible to avoid exposure of many of the signs'. The Tribunal accepts that some advertising signage will appear in such telecasts, and this is covered under sub-section 100(10). The question is whether it was possible to reduce the coverage of the advertising signage to a level which could properly be called 'incidental', without adversely affecting coverage of the game itself. In this regard, the Tribunal examined tapes of the TEN and TCN coverage of the 1983 Rugby League Grand Final. In 1983, the layout of the Winfield signage was substantially similar to 1982. Disregarding the dance display, which was much less associated with Winfield cigarettes in 1983 than the year before, the Tribunal noted that the TEN and TCN cameras were able to avoid most of the signage through the careful use of camera angles and close up shots. It was also apparent that the cameras moved quickly off such signage as did appear close to the action. In the Tribunal's opinion, the two 1983 coverages did not result in a contravention of the Act, and demonstrate that such contraventions can be avoided. In any event, if a licensee considers that the advertising matter
14 cannot be avoided to the degree necessary to avoid a contravention, it must accept the responsibility of refusing to televise the event unless and until changes are made to the positioning of the signage."
30. No television transcript is in evidence. There is in evidence a copy of an agreement between the first applicant in this case (Rothmans of Pall Mall) and the second applicant (The New South Wales Rugby League Limited) requiring the latter to permit, or assist, the former to make use of rugby league matches and material associated therewith for the advertising of Winfield cigarettes. The first grade competition is to be for the Winfield premiership, and the winner of the grand final is to receive a trophy known as the Winfield Cup.
31. The contract, as with others (one with Benson and Hedges relating to the Australian Ballet, and another with Rothman's respecting the "Aussie Assault" with which I still have to deal) was tendered by agreement "in confidence". I was not invited to make any formal order with regard to these documents, and did not do so. Out of respect for the desire for confidence, I am not dealing at length or in detail with their contents, nor am I attempting to summarise them, but I should set out clauses 6 and 11 of the rugby league agreement:
"6. The League will give every assistance to Rothmans in obtaining prominent advertising space at all football grounds where Competition matches are played. In particular the League will assist Rothmans in obtaining advertising space at the Sydney Cricket Ground including the painting of the Winfield logo on the grass playing area during the Competition finals series.
11. Rothmans shall during the Grand Final have the right to exhibit various displays and floats advertising Rothmans' products and referring to its sponsorship, as part of the League's publicity and promotions campaign for such Grand Final."
32. The statement of the Tribunal's decision in this case is ambiguous. It is not clear therefrom whether the decision is that the whole screening offended against the Act, or whether, on the contrary, particular, but unspecified parts of it did. Reading the decision in the light of the reasons, it seems that one part of the decision was that the whole screening of the match offended against the Act, the particular advertising segments not being an incidental or accidental accompaniment to the other matter. There being some cigarette advertising material, the question examined was whether it came within sub-s. (10).
33. The test, or a principal test posed was expressed as follows:
"A judgement must be made as to whether the advertising matter dominates or forms a substantial feature of the program, scene or segment, having regard to the emphasis, tone and frequency or repetition of the advertising matter in question." A test thus expressed, as to whether the "advertising matter ... forms a substantial feature of the program ..." is not one stated in the legislation, and can lead to error. The particular matters to which the Tribunal drew attention in its reasons were as follows:
15 (a) the deliberate placing of the Winfield A-frames, inside the fence, close to the sideline, and mostly opposite the television camera positions, so as to ensure maximum television exposure;
(b) the fact, as it found, that there were frequent and lengthy close-ups of the A-frames and other signage around the field; and
(c) the fact, as indicated by the 1983 grand final match, that "coverage of the advertising signage" could be reduced so as to become incidental.
The reasons related to exposure on screen and not spoken words.
34. In my view the decision, so far as it related to the whole match, was erroneous in law, in that it proceeded according to a wrong test and in reliance on some unsound reasoning. It would not seem to be supported by the facts. I have already commented on the test stated. It was also erroneous to base a decision on reasons (a) and (c). The question posed by the sub-sections involves an objective assessment of the meaning and effect conveyed by screen and sound (these being taken in context) and not an examination of preliminary actions, or what might have been avoided.
35. It seems to me that what the Tribunal has done on this aspect of the case, is to decide that what was shown by way of advertisements for cigarettes was, in all, substantial, and not incidental, and that therefore the whole match should be regarded as an advertisement. This involves a non sequitur. As I have said, it is necessary, first, to find an advertisement for cigarettes, and to determine upon its termini. It is true that a sequence need not contain, on each scene or segment, overt advertising material. The "Field of Battle" sequence and the Ballet sequence were not treated as cigarette advertisements, as to the whole thereof, because, on a reasonable understanding of what was shown and said, they were not to be so regarded. The fact that a sequence contains advertising material at various stages, even frequently, or blatantly, does not of itself mean that the whole sequence is to be treated as an advertisement. Matters of judgment are involved. It could not reasonably be concluded that the whole football match was an advertisement for cigarettes, in any relevant sense. It is true enough that sponsorship is a currently popular means of facilitating advertising by the sponsor, but what is sponsored is not necessarily, or usually, an advertisement. Announcements and visual matter referring to the sponsor, or its products, may be, depending upon the circumstances. In the present case, the Tribunal seems to have been of the view that, because of the degree of exposure, there were a number of cigarette advertisements. This being so, it was not regarded as necessary to determine whether they were an incidental accompaniment of other matter, i.e the football match.
36. It would be an error to conclude, simply from the fact that there were a number of advertisements over a period, and that they were not an incidental accompaniment of the match, that the whole match was an advertisement.
37. The word "incidental" is not one of precise meaning; what is to be understood by it depends very much upon the context. I see no reason for giving it a limited meaning in s.100(10). It must be taken that Parliament had in mind live televising of sporting events, and other spectacles, and would be well aware of the pervasive nature of advertising material. Sub-section (5), to which sub-s. (10) also relates, forbids a licensee to "broadcast or televise advertisements on a Sunday except in such manner and in accordance with such conditions as the Tribunal determines". It is nevertheless recognised that an advertisement broadcast or televised on a Sunday may be an "incidental accompaniment" to other matter. In this connection I observe that advertising is not in terms limited to advertising of commercial matter, and may include advertising matter of a social, political or clerical nature. If payment is received by the licensee
16 then, of course, sub-s. (10) does not apply. There is obviously a strong public interest in having many sorts of events and occasions televised, including, not least of all, sporting events.
38. The policy to which sub-s. (5A) gives effect is of course very important. The fact is, however, that the advertising of cigarettes, directly, or indirectly through the use of brand and the names of the well-known suppliers, is very common at and around sports facilities, and it would not be possible, or reasonably practical, to televise the sporting activities without cigarette advertisements being caught on screen. Doubtless, if a camera rested on an advertisement for an undue time, or number of times, the particular screening may not be regarded as an incidental accompaniment. Fine questions of fact may then arise, to be resolved, at least in the first instance, by the Tribunal, or by a court hearing a prosecution under s.132.
39. In what I have been saying I have not overlooked the fact that sub-s. (10), in its exclusionary part, refers to "matters of an advertising character" and not simply to "advertisements". I think it must be taken, as a matter of construction, that what is excluded is capable of coming within the prohibition, in other words, that "matter of an advertising character" includes advertisements. The meaning of the language cited may or may not go further, and to some extent, for more abundant caution, express an exclusion of some matter not prohibited, because it does not amount to an advertisement. There are doubtless a number of possible explanations of the change in language, but my present understanding is that the use of the phrase was regarded as more consonant with what is "accidental" or "incidental".
40. The Tribunal dealt separately with the dance display which took place before the match started. It was of the opinion that this was "completely self-contained and separated from the match itself". It was, I might add, of about ten minutes duration, and had its own attraction. The Tribunal also concluded that the dancing display ("taken as a whole") was of an advertising character. I do not think these conclusions can be said to have been wrong, or to have been arrived at on wrong principles. The transposition by the Tribunal of the noun "advertisement", used in sub-s. (5A), to the adjectival phrase "advertising character" (used in sub-s. (10)) may, I think, mislead, but there can be no doubt in the present case that an "advertisement" was being referred to. The ordinary viewer would, I imagine, regard the dancing as a pleasant spectacle, skilfully executed, but plainly drawing attention to Winfield, and Winfield cigarettes. It was of course argued that the dance was part of the whole spectacle, the whole performance of what someone would see who attended the grand final. It seems to be an accepted accompaniment of such matches to have a degree of razzmatazz, which is not part of the football match. If it was part of the whole spectacle and the rest could properly be regarded as "other matter" within the meaning of sub-s. (10), then it could possibly be concluded that the dancing, was an "incidental accompaniment". It is plain that the Tribunal regarded the relevant "other matter" as the "match itself", and from this it excluded the dancing which was preliminary to the match. There is in my view no ground to order review of the decision of the Tribunal that the dance was not "incidental". This was indeed the only reasonable conclusion once the preliminary spectacle was divorced from the "match itself", and on this the Tribunal expressed itself emphatically in the language I have cited.
41. Although there are facets of the programme which are mentioned in the decision, as, for example, what occurred at the end of the match, when the Cup was being presented, the decision as stated does not seem to have related to these features, or any of them, and I will make no separate comment on them.
42. The decision so far as it concerned the football match, should be set aside; that relating to the dancing performance should be allowed to stand.
43. This application to review should therefore be allowed in part.
G175 of 1984:
44. This matter concerns the feature called "Aussie Assault". The decision and reasons of the Tribunal were given as follows:
17 "Advertiser: Hoyts Theatres Ltd
Title: 'Aussie Assault' (Key Nos. AA55/1R, AA55/2R and
AA25/1R Description: The advertisements show scenes from the documentary film 'Aussie Assault' which concerns Australia II's successful challenge for the America's Cup. At the beginning and end of the advertisements, an inset in red and white contains the words 'a Winfield Company sponsorship'.
Decision: The insets in the advertisements are advertisements for cigarettes within the meaning of sub-section 100(5A) of the Broadcasting and Television Act 1942.
Reasons: Rothmans of Pall Mall (Aust.) Ltd has registered the 'Winfield 25's Company' as a business name. The 'Winfield Company' appears to be simply a contraction of this business name. There is no corporation called the Winfield Company, nor does 'Winfield' have any associations apart from a popular brand of cigarettes distinguished by its red and white packet. The use of the insets in the 'Aussie Assault' advertisement is apparently intended to promote, or attract goodwill to, the name 'Winfield' and, by extension, the only product bearing the Winfield name.
If there were no insets in the advertisements no issue under sub-section 100(5A) would have arisen. Furthermore, if the material had appeared in the course of a program, rather than a paid advertisement, there would have been a question as to whether it was 'incidental' to the matter in which they appeared. That exception to sub-section 100(5A) is not available in this case.
The comments of FACTS Commercials Acceptance Division were sought. In a very brief response, FACTS advised that senior counsel was of the opinion that the advertisements did not infringe sub-section 100(5A), and it was therefore not proposed to withdraw acceptance for them. No details of counsel's advice were provided.
The Tribunal is of the opinion that a reasonable person would regard the insets in the advertisements, in all the circumstances, as seeking indirectly to promote Winfield cigarettes."
18 45. Paragraph 2 of the affidavit of Mr. W.P. Ryan, General Manager, tobacco products, of the applicant, reads in part as follows: "In January, 1984, Hoyts theatres commenced to exhibit around Australia the film 'Aussie Assault', relating to Australia II's successful challenge for the America's Cup. The applicant provided sponsorship money to the producers of the film. For the purpose of the promotion of the film, the film's producers and Hoyts co-operated in the production of television advertisements of 'trailers', Key Nos. AA55/1R, AA55/2B and AA25/1R. Copies of the scripts of the advertisements are annexed hereto and marked 'S1', 'S2' and 'S3' respectively." There were three separate programmes. The scripts were as follows: "TELEVISION SCRIPT KEY NO: AA55/1 1 x 55 SECOND
SUPER: AUSSIE ASSAULT. A WINFIELD SPONSORSHIP
COPY: NOW, ON THE BIG SCREEN, IN DOLBY STEREO SOUND, THE UNTOLD STORY OF THE RACE OF THE CENTURY.
SUPER: THE PRIZE. THE CHALLENGE. AUSTRALIA II
COPY: THE GUN IS GONE. THE AMERICANS ARE EXACTLY ON THE LINE, THE AUSTRALIANS ARE BEHIND THEM AND THEY ARE ATTACKING AGAIN. I DON'T KNOW WHY A BAD START FOR THE AUSTRALIANS, A LOVELY START FOR THE AMERICANS.
SUPER: THE COMEBACK.
COPY: AGAINST TIME, LET US KNOW AND WE WILL ALL TURN TOWARDS NEWPORT THEN GET IT HOME.
IT'S GOING TO BE AUSTRALIA II. THEY ARE GOING TO WIN IT. THEY'RE ABOUT TO CROSS THE LINE, THEY MAKE A FINAL MOVE. HERE IT COMES. THEY...
"TELEVISION SCRIPT KEY NO: AA55/1 1 x 55 SECOND
SUPER: AUSSIE ASSAULT. A WINFIELD SPONSORSHIP
COPY: NOW, ON THE BIG SCREEN, IN DOLBY STEREO SOUND, THE UNTOLD STORY OF THE RACE OF THE CENTURY.
SUPER: THE PRIZE. THE CHALLENGE. AUSTRALIA II.
19 COPY: THE GUN IS GONE. THE AMERICANS ARE EXACTLY ON THE LINE, THE AUSTRALIANS ARE BEHIND THEM AND THEY ARE ATTACKING AGAIN. I DON'T KNOW WHY A BAD START FOR THE AUSTRALIANS, A LOVELY START FOR THE AMERICANS.
SUPER: THE COMEBACK.
COPY: AGAINST TIME, LET US KNOW AND WE WILL ALL TURN TOWARDS NEWPORT THEN GET IT HOME. IT'S GOING TO BE AUSTRALIA II. THEY ARE GOING TO WIN IT. THEY'RE ABOUT TO CROSS THE LINE, THEY MAKE A FINAL MOVE. HERE IT COMES. THEY'VE DONE IT. THEY HAVE WON THE AMERICA'S CUP.
SUPER: AUSSIE ASSAULT. THE RACE OF THE CENTURY. A WINFIELD SPONSORSHIP.
COPY: THEY SAID IT COULDN'T BE WON. LIKE HELL IT COULDN'T. ... TELEVISION SCRIPT KEY NO: AA55/2 1 x 55 SECOND
SUPER: AUSSIE ASSAULT. A WINFIELD SPONSORSHIP
COPY: NOW ON THE BIG SCREEN, IN DOLBY STEREO SOUND, THE UNTOLD STORY OF THE RACE OF THE CENTURY.
SUPER: THE PRIZE THE CHALLENGE. AUSTRALIA II THE MEN THE SECRET WEAPON THE COMEBACK
COPY: WILL YOU STAND UP AUSTRALIA BECAUSE THIS IS THE FINEST DAY IN THE HISTORY OF AUSTRALIAN SPORT WHEN YOU GET THAT GOLDEN SPANNER OUT ALAN BOND AND GO TO NEW YORK AND UNBOLT THAT CUP.
SUPER: AUSSIE ASSAULT THE RACE OF THE CENTURY A WINFIELD SPONSORSHIP .
COPY: THEY SAID IT COULDN'T BE WON. LIKE HELL IT COULDN'T."
46. As appears from the reasons, the respondent was of the view that the "insets" constituted the advertisements. I do not think this view can be challenged successfully on review. As the insets did not appear in the course of the sporting programmes, the Tribunal's expressed view was that no question arose of those "insets" being incidental accompaniments. This is perhaps not a universally correct proposition,
20 but sufficiently accurate for the purposes of the case. It would of course be academic to consider the showing of the film without the advertising material. The Tribunal has in effect decided that the insets were distinct and severable from the rest of the screening. A further statement of Mr. Ryan (para. 5 of his affidavit), however, is to be considered: "The applicant is aggrieved by the said decision and by the conduct of the respondent in applying the policy statement referred to in the application herein because it is effectively prevented from enhancing its public image through television advertisements of films or other activities which it may sponsor, where insets appear in such advertisements in the same or similar manner to the insets appearing in the said advertisements. Further, from the decision there is an implication that the applicant was involved with the said licensee in a breach of section 100 (5A) of the said Act and was acting contrary to law." 47. In my view the Tribunal was entitled to find that the use of the name "Winfield", whatever it may have done separately for the public image of Rothmans, turned the attention of viewers to Winfield cigarettes. The advertising value of the insets is evident from the "confidential" documents which have been tendered.
48. There was not in my opinion any invalidating aspect of this decision, and the application in respect of it should be dismissed.
49. The applicants tendered some documents in reliance upon s.15AB of the Acts Interpretation Act 1901, which I admitted subject to objection. They were:
(a) a copy of the Minister's Second Reading Speech when introducing to the House the Broadcasting and Television Amendment Bill 1976; and
(b) Hansard report of debates in the House of Representatives and Senate thereon.
The Bill dealt with more matters than the introduction of sub-ss. (5A) and (10) of s.100 of the Act. As confined to matters relevant to these cases, I believe the material is admissible for the purpose mentioned in s.15AB(1), and as satisfying paras. (f) and (h) of sub-s. (2) of that section. While the material is of interest, I have not found it of assistance in the interpretation of the relevant provisions. Senator Carrick represented in the Senate the Minister responsible for the Bill, and, after a query had been raised by Senator Young, he said, at the conclusion of the debate there: "Senator Young sought clarification of one point, that is, whether the purpose of clause 5, which seeks to insert a proposed new sub-section (10) in section 100, is as the honourable senator set out. What is called peripheral or perimeter advertising is permitted by this Bill. Advertising of slogans on billboards or fences around sporting ovals is permitted providing there is not abuse of the intention of the legislation by a broadcaster or a telecaster. That is what is meant by the accidental or incidental penetration by slogans or advertising. As I understand it, it also would be possible for sponsorship by particular sponsors to continue so long as it was not sponsorship in the direct sense of sponsoring certain cigarettes or cigarette tobacco. So, those aspects do not cut across the intentions of the legislation at all."
21 50. Allowing for the fact that Senator Carrick's words are not to be examined or construed as if they were part of the Act, it seems to me that the understanding he expresses is closely similar to the way the sub- sections have been interpreted by the Tribunal, and, on review, by this Court.
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