2 JULY
THE NEW ZEALAND GAZETTE
1823

those complaints which it considers to be frivolous, vexatious
or malicious.

It is noted that Mr Cullimore accepted Radio Pacific’s
explanation in respect of the admitted broadcast of an adver-
tisement on Sunday. This was not raised before the Commit-
tee of Private Broadcasters and is not therefore a matter on
which the Tribunal can make a formal decision.

In summary:

1. The Tribunal upholds the complaint that Radio Pacific
   Ltd. failed properly to carry out the recommendation of the
   Committee of Private Broadcasters.

2. It does not uphold the complaints about the illegality
   of the promotion, the alleged breach of standards of objective
   journalism or the enticement of listeners into an allegedly
   illegal promotion.

Mr Cullimore was unhappy that he did not win an on-air
apology for his original complaint. We consider it proper
that an appropriate statement should now be made on Mr
Bickerstaff’s programme by Radio Pacific Ltd. That should
conclude the matter.

Co-opted Members

The Tribunal co-opted Messrs Wear and Ell as persons
whose qualifications and experience were likely to be of
assistance to the Tribunal in dealing with the complaint. They
took part in the hearing of the complaint and the delibera-
tions of the Tribunal but the decision, in accordance with the
Act, is that of the permanent members.

Dated the 18th day of June 1981.

For the Tribunal:

B. H. SLANE, Chairman.

Decision No. 13/81
Com. 25/81

Before the Broadcasting Tribunal

IN the matter of the Broadcasting Act 1976, and in the matter
of a complaint by Clifford Reginald Turner.

WARRANT HOLDER: Broadcasting Corporation of New
Zealand (Radio New Zealand—1ZM):

B. H. Slane, chairman; Lionel R. Scats, member; Janet C.
Somerville, member; Robert Boyd-Bell, Co-opted member;
S. H. Gardiner, Co-opted member.

DECISION

Mr Turner complained about a radio commercial for the
Auckland Racing Club. The following is a transcript of the
type of advertisement complained about:

This Saturday at Ellerslie, the Auckland Racing Club’s
Air New Zealand Meeting. Derby winner Ring the Bell,
Auckland Cup winner Drum and a top field clash in the
country’s richest weight-for-age race: The Air New
Zealand Stakes. On selected races the McWilliams Wine
Consolation offers a free wine to those with tickets on
the fourth horse. First race starts at 5 past 12 this Satur-
day at Ellerslie. Thoroughbred racing at its finest. Pre-
sented by the Auckland Racing Club.

Mr Turner’s complaint was that it was in fact an advertise-
ment for McWilliams Wine.

The Corporation did not uphold his complaint saying the
advertisement was not in the true sense an advertisement
which had been “designed to encourage and/or promote the
general consumption of alcoholic liquor”. Its intent was to
attract people to a race meeting. The fact that ticket holders
on horses which came fourth were to be offered a glass of
wine was not considered as providing an inducement which
would promote the general consumption of liquor.

The Corporation did not consider the commercial fell within
the ambit of the rule relating to advertisements associated
with alcoholic liquor.

Mr Turner referred the complaint to the Tribunal. He said
he believed the commercial, while purporting to be for the
Auckland Racing Club, was in fact for McWilliams Wine.

The Broadcasting Corporation told the Tribunal that the
intent and tenor of the advertisement clearly placed it outside
the definition of advertisements associated with alcohol.

The advertisement was designed to attract people to the
races. Should they have the misfortune to invest on a horse
which came one away from returning a dividend then they
may receive a consolation “prize” of a drink of wine. The
Corporation believed that the “prize” could hardly be inter-
preted as providing an inducement which would “encourage
and/or promote the general consumption of alcoholic liquor”
as racegoers did not invest on horses in the hope that they
would consistently come fourth.

But the test is not whether or not the advertisement is
“designed to encourage and/or promote the general consump-
tion” (although that is said to be the broad intention of the
rule). The test is whether or not the advertisement complies
with every one of the specific requirements (1) to (6). This
one does not.

The Corporation said that no payment had been made
whether in money or otherwise by McWilliams Wines to the
Corporation which, the Corporation said, supported the con-
tention that it was not an alcohol associated advertisement.
It is, in the opinion of the Tribunal, an advertisement
which promotes a product to the commercial benefit of the
manufacturer and thus is an advertisement for the wine.

It may be thought that the prohibition applies only to
advertisements for the sale of alcoholic liquor. Yet plainly
the rule is not so limited. It also applies to those which men-
tion alcoholic liquor or are associated with it.

The advertisement is therefore caught by the rule because
it does mention alcoholic liquor and it is associated with
alcoholic liquor.

After stating its “broad intention” rule 1.11 goes on:

“Therefore, only those advertisements which conform with
the following requirements may be broadcast: . . .

(2) Advertisements must not use brand names as such.”

This advertisement does use a brand name (McWilliams)
as such.

The complaint is therefore upheld.

We wish to make it clear that the Tribunal has already
criticised the form of the rule and that the Tribunal is not
responsible for the form or the substance of the rule.

The Tribunal has recently upheld two complaints by Mr
Turner against the use of brand names. One related to radio
advertising of Lion Breweries, the other to an advertisement
for Dunhill on television.

Mr Turner was also justified in making this complaint. The
advertisement clearly offended the spirit of the rules which
were intended to prevent brand name advertising.

Co-opted Members

Messrs Boyd-Bell and Gardiner were co-opted to the
Tribunal as persons whose qualifications or experience were
likely to be of assistance to the Tribunal in dealing with the
complaint. They took part in the deliberations of the Tribunal
but the decision, in accordance with the Act, is that of the
permanent members.

Dated the 16th day of June 1981.

For the Tribunal:

B. H. SLANE, Chairman.

Decision No. 14/81
Com. 2/81

Before the Broadcasting Tribunal

IN the matter of the Broadcasting Act 1976, and in the matter
of the Broadcasting Corporation of New Zealand:

B. H. Slane, chairman, Lionel R. Scats, member, Janet C.
Somerville, member.

DIRECTION PURSUANT TO SECTION 83 (1)

The Tribunal has been asked a number of times by
Mr C. R. Turner to take action under section 83 (3) Broad-
casting Act, against the Broadcasting Corporation following
breaches of liquor and other advertising rules. This section
empowers the Tribunal to notify the holder of a warrant that
it proposes to impose a monetary penalty on him or to
revoke or suspend the warrant on the ground that the
broadcasting station to which the warrant relates is not
being carried on in conformity with the terms and conditions
of the warrant.

Subsection (4) provides that if the Tribunal is of the
opinion that the station has not been carried on in conformity
with the warrant it may, revoke or suspend the warrant for
such period as it thinks fit or reduce the term of the warrant
or may impose on the holder a monetary penalty not
exceeding $500.

Subsection (5) provides that no warrant held by the
Corporation in respect of any broadcasting station can be
suspended or revoked except on the request of the Corpora-
tion or with the approval of the Minister.

The Tribunal is not satisfied that penal action under section
83 (3) should be instituted but it has upheld two complaints
by Mr Turner. We have this year upheld his complaint in
relation to Lion Breweries racing as well as a complaint
relating to the broadcasting of the brand name Dunhill in
breach of another advertising rule. A complaint about the