Alleged mistake as to value of prize in Reality Show not a matter to be decided by the BCCSA in terms of its Code.Chetty vs M-Net, Case No: 41/2012(BCTSA)
CASE NUMBER: 41/2012
DATE OF HEARING: 11 SEPTEMBER 2012
JUDGMENT ISSUED: 14 SEPTEMBER 2012
TRIBUNAL: PROF KOBUS VAN ROOYEN SC (CHAIRPERSON)
DR LYNDA GILFILLAN
MS ZALI MBOMBO
MR A MELVILLE
Complainant: The Complainant was unable to attend
For the Respondent: Dr Dario Milo, with him Greg Palmer from Webber Wentzel Bowens accompanied by Theo Erasmus: Channel Director, General Entertainment, M-Net.
Clause 28.2 of the Subscription Broadcasting Code addresses (as does clause 12 of the Broadcasting Code for free-to-air broadcasters) only programmes which feature matters of public importance. They do not address matters as mundane as a reality programme. Although section 39 of the Constitution permits the Tribunal to adapt
the law to bring it in accordance with the Bill of Rights, it would be impermissible for this Tribunal to, for example, lift the phrase “public importance” from the Code and then apply it to the programme complained about. Such an interpretation would basically change the meaning of clause 28.2 and is clearly not authorised by section 39.
The Advertising Standards Authority applies a Code which has a wider ambit than the BCCSA Code, and relates to promotional material. The present programme falls within the jurisdiction of the BCCSA since it is, in the main, an entertainment programme. If indeed an error has been made in the programme then that is not an area within which the BCCSA Codes permit the BCCSA to act. The possible error is, within the ambit of the BCCSA Codes, not of a type that it is called upon to adjudicate. The level of entry for the BCCSA, according to the Codes which it applies, lies at a higher level.
It does not concern itself with mundane matters such as errors in a reality show. Its focus is on news, comment on matters of public interest, the right to reply in such matters, the protection of privacy, reputation and dignity, information to the public in regard to the nature of programmes and films, the protection of children and, generally, the exclusion of XX and X18 material which relate to pornography and excessive violence and, ultimately, hate speech based on race, ethnicity, religion and gender.
The complaint was, accordingly, not upheld.
Prof JCW van Rooyen SC
 The Registrar of the BCCSA received a complaint by Dr Chetty regarding the broadcast of the results of a Masterchef reality competition which was underwritten by M-Net and also broadcast by M-Net in the programme complained about. I referred the matter to a Tribunal.
 The complaint reads as follows:
“In December 2011, M-Net began flighting advertisements for its new reality tv series, viz Masterchef South Africa. This was based on the popular international shows. They advertised the series as that with the highest prize money of any reality show in the country. They announced prizes in excess of R8 million, which included a restaurant valued at R7 million. The advertisements clearly gave the impression that a fully furnished restaurant was being given away. This mention of the prize money was also printed on its DSTV website.
To any reasonable person, there was no ambiguity in the way this was presented across. This obviously boosted peoples interest in the series and M-NET declared the series has having the fourth highest viewership of all of the DSTV programmes. Furthermore Naspers which is the parent body of Multichoice announced there was a huge increase in the subscriptions to dstv. However I was alarmed to learn today (27/07/2012) that no restaurant was given away at the close of the competition on 24/07/2012. What the winner received was in fact a contract to run the restaurant for 2 years, with only an undisclosed share of the profits. Furthermore, he would only make 5 appearances per month at the restuarant and not be based fulltime there. The restaurant would not change hands from the owners Tsogo Sun. The actual total prize money was in fact under a million rands.
The manner in which M-Net and DSTV conducted themselves is nothing short of scandalous. The lies and deception from M-Net has left a bitter taste in my mouth. This broadcasting company should face censure over their unethical conduct to boost ratings. This in my mind constitutes fraud and borders on criminality. I am writing to you in the hope that you would investigate this complaint and take action against M-NET.
All I am asking as a viewer is fair and honest broadcasting. Please investigate this complaint and advise accordingly. I value the role that the BCSSA plays in ensuring that these broadcasting corporates adhere to a proper code of conduct.
The prizes to have been awarded were uploaded onto YOUTUBE and can be viewed at the link below.
I would like to bring to your attention that the screening of the 1st episode of Masterchef SA began on 20/03/2012. Since the very first screening the show has been labelled as that with the highest prize money of any reality tv show. They repeatedly broadcasted the prizes on offer until the last episode on 24 July 2012.The prizes are broadcast as a total in value of over 8 million. I have a copy of the last broadcast where it mentions that the winner will get his very own restaurant courtesy of Tsogo Sun. In small writing there is mention of terms and conditions. Running a restaurant for 5 times a month is vastly different from getting your very own restaurant. Even on the dstv website currently, M-NET continues to advertise the prizes as a total of R8 million including “YOUR VERY OWN RESTUARANT”.
 M-Net responded as follows:
“Complaint concerning Masterchef programme
3. Clause 1.5.3 of Appendix 1 to the BCCSA’s Constitution provides that the Registrar of the BCCSA should only accept a complaint which does not concern an advertisement broadcast by a signatory who is also subject to the Code of the Advertising Standards Authority of South Africa (“ASA”), provided that “advertisement” bears the meaning which the ASA Code attributes to it.
4. Our client’s advertisements are subject to the jurisdiction of the ASA. Our instructions are that the broadcast that is the subject of the BCCSA complaint may be an “advertisement” as defined in the ASA Code.
5. The Registrar’s attention is also drawn to the fact that the complainant has complained in similar terms to the ASA, and our client is poised to respond to that complaint.
6. We would be grateful for an indication that a response from our client to the BCCSA is in the circumstances unnecessary.”
 Firstly as to jurisdiction: although the Masterchef programme included promotional material relating to the Masterchef reality competition complained about, the latter is, essentially, a prize giving ceremony rather than an advertisement and, accordingly, the BCCSA has jurisdiction to decide the matter. A further argument put forward by Mr Milo was that there was no misrepresentation in the programme since, effectively, the winner did receive substantial ownership rights and benefits, albeit not actual lifelong ownership of the restaurant itself. Mr Milo argued that the reasonable viewer would have been likely to understand this kind of ownership, given the conventional relationship of a chef to a restaurant.
 Since the programme does not amount to news and is, in fact, nothing more than entertainment, the rules relating to news, which are strict concerning truth, do not apply in this instance. The only other clause in the Subscription Broadcasting Code which could possibly be applicable to the broadcast is clause 28.2, which provides as follows:
Licensees may broadcast comment on and criticism of any actions or events of public importance. Comment must be an honest expression of opinion and must be presented in such manner that it appears clearly to be comment, and must be made on facts truly stated or fairly indicated and referred to.
 Clause 28.2 governs opinions on matters of public importance. The first question is whether the clause is applicable to the programme complained about. Does the programme deal with a matter of “public importance”, which obviously, in law, means “public interest.” We have made it clear in at least three judgments1 that the term “public interest” has a limited meaning. It does not, as has often been pointed out, amount to what is interesting to the public. If that were the case, all reality shows would fall within clause 28.2.
 In Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another 1993 (2) SA 451 (A) Corbett CJ said at 464C-D:
“(1) There is a wide difference between what is interesting to the public and what it is in the public interest to make known . . .
(2) The media have a private interest of their own in publishing what appeals to the public and may increase their circulation or the numbers of their viewers or listeners; and they are peculiarly vulnerable to the error of confusing the public interest with their own interest…”
 The programme that we have to judge in no way deals with a matter of public importance. It does not expose matters such as alleged abuse and or evil in society. On that ground alone, we should reject the complaint. There is no provision in the Subscription Broadcasting Code nor, for that matter, in the Free-to-Air Code, which addresses this category of mistakes. Of course, both Codes address misinformation relating to news, classification and age restrictions, but the matter complained of in the present instance does not fall within any of these categories.
 The next question is whether this Tribunal is permitted to broaden clause 28 so that it also includes errors of the type which the Complainant alleges were broadcast. This question is especially pertinent since we are of the view that the formulation “he gets his very own restaurant” could be interpreted by many viewers as “full ownership” for as long as it pleases the winner to exercise such ownership. Of course, this is what ownership usually means to the ordinary reasonable member of society. Lawyers would know that the term has different nuances to it – and these nuances were fully stated in the contract with the winner. It was clear that he would obtain the sole right to the reputation that he builds in the restaurant, and that he would determine the menus. Moreover, there were different options that the winner might exercise, one of which being that he could, effectively, run the restaurant for two years.
We would, however, only be permitted in law to express a final opinion on what the perception of the reasonable viewer would have been if clause 28.2 prohibits such a mistake. If not, we might be interfering with a decision which the Advertising Standards Authority still has to make. Of course, the ASA would not be making a finding on this broadcast before us, since it does not amount to an advertisement. However, we were informed that the ASA will be adjudicating the same advertisement within a context where it has jurisdiction.
 As has been pointed out by the Constitutional Court, South Africa is a constitutional democracy, and legality is a founding value of this democracy. Legality requires that judicial bodies and organs of state must function within the powers vested in them by legislation or common law.
 It is true that section 39(2) of the Constitution of the Republic of South Africa 1996 obliges a court and other tribunals such as the BCCSA, when interpreting legislation,3 to promote the spirit, purport and objects of the Bill of Rights. A Court and this Tribunal should, of course, bear in mind that Parliament is the major engine in law reform and that a court or tribunal should take care not to usurp that function.4 In Director of Public Prosecutions, Cape of Good Hope v Robinson5 Yacoob J said the following in regard to the scope within which s 39(2) is permitted to be applied:
 Fourthly, the High Court misconceived the extent of its power to construe a legislative provision consistently with the Constitution. A Court’s power to do so is not unqualified; a Court cannot give a meaning to the provision which it regards as consistent with the Constitution without more. The provision concerned must be reasonably capable of the preferred construction without undue strain to the language of the provision.6 The words ‘liable to be surrendered’, in their context, are incapable of bearing the meaning contended for.” (emphasis added)
 In light of what Yacoob J states above, it is clear that this Tribunal would have to lift the words “public importance” from clause 28 if it were to broaden the scope of the clause to include all mistakes made by a broadcaster. That would amount to a fundamental change to a clause which obviously does not deal with mundane matters such as the results of a reality show. It should also be borne in mind that the BCCSA is granted powers to intervene in matters concerning freedom of speech, a fundamental right which has been described as lying at the heart of democracy. To extend our powers to cover the present dispute, and thereby to intervene, would be perilous for that very democracy. It is true that the Constitutional Court has held that no fundamental right is more important than any other right,7 and that when a matter is considered, all fundamental rights must, at the start, be regarded as having equal value. Thereafter, balancing of these rights, in the light of the particular circumstances of each case, takes place. Nevertheless, there is no basis upon which we are permitted by section 39 to fundamentally change clause 28.2 to cover the set of facts before us.
 A final consideration on the matter: clause 29 of the Subscription Code provides as follows: “This Code is subject to interpretation in the light of changing circumstances.” Firstly, it is significant that when ICASA accepted the New Code for Free-to-Air broadcasters in 2009, a clause of this nature was no longer included.
Secondly, the clause would seem to be reminiscent of dictatorial structures such as the seventeenth-century (and earlier) English Star Chamber which was permitted to widen (often dictatorially) its powers according to the facts of a case, and thus amend or fill in omissions in the Common law. Within a Constitutional Democracy there is, fortunately, no power for a Court or, for that matter the BCCSA Tribunal, to fill in gaps in the Law or Code which it applies. In fact, it is my view that there is no “gap” in clause 28.2 and that it was clearly intended to not intervene in matters which are not of public importance.
Nullum crimen sine lege and nulla poena sine lege are fundamental principles in our democracy, which is based on the fundamental right to legality in section 1 of the Constitution of the Republic of South Africa.9 Clause 29 can only have an effect in so far as it accords with section 39 of the Constitution. It is probable, in any case, that this only means that the facts of each case must be decided upon in the light of prevailing circumstances in the country at the time.
In any case, such a provision is unnecessary since Courts and Tribunals always judge matters in the light of prevailing circumstances. We are ultimately bound by the wording of the Code and are permitted to deviate from the wording only when section 39 of the Constitution places a duty on us to do so. As indicated above, this is not such a case.
 The Advertising Standards Authority applies a Code which has a wider ambit than the BCCSA Code, and relates to promotional material. The present programme falls within the jurisdiction of the BCCSA since it is, in the main, an entertainment programme. If indeed an error has been made in the programme then that is not an area within which the BCCSA Codes permit the BCCSA to act. The possible error is, within the ambit of the BCCSA Codes, not of a type that it is called upon to adjudicate. The level of entry for the BCCSA, according to the Codes which it applies, lies at a higher level.
It does not concern itself with mundane matters such as errors in a reality show. Its focus is on news, comment on matters of public interest, the right to reply in such matters, information to the public in regard to the nature of programmes and films, the protection of children, matters pertaining to reputation, dignity and privacy and, generally, the exclusion of XX and X18 material, which relate to pornography and excessive violence; ultimately, it also relates to hate speech based on race, ethnicity, religion and gender.
We accordingly find that clause 28.2 is not applicable to the present matter since the broadcast did not relate to a matter of public importance in the sense of public interest, which has a limited legal meaning.
The Complaint is not upheld.
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