THE FACTS
L’instant gagnant is a television call-in contest program broadcast on V seven evenings a week, starting in the late evening and continuing into the morning of the next day. The program is produced and paid for by a company known as TéléMedia InteracTV. It features a host who presents quizzes and puzzles on the screen and asks the viewers to phone the program for the chance to solve them and win cash prizes. Each call costs $1 regardless of whether or not the call is transmitted to the host. In addition, that information appears at the bottom of the screen and the host repeats it several times during the broadcast. The prize amount is generally around $100 at the beginning of the program and increases progressively as the program continues. The numbers to call, for both land lines and mobile devices, remain on the screen throughout the broadcast.
The host encourages viewers to call and a variety of sound and visual effects create suspense and excitement, such as alternating periods of silence and intense noise or blinking images revealing the prize amount to be won. There is often a lapse of several minutes near the end of each episode between the time when the quiz or puzzle is displayed and the time at which a call is taken in the studio. Although the host indicates several times that no calls are coming in, one caller invariably manages to phone in at the very last minute of the show.
The solutions to some of the games are simple and obvious, such as [translation] “Spot the differences in these images” or finding the names of animals on a grid, and a caller wins. In other instances, more complex strategies are involved.
To date, the CBSC has received 55 complaints about this program and this decision deals with four of them, from three complainants. These three complainants identified nine different episodes of the program aired on V between March 5 and September 28, 2012 which, in their opinion, are in breach of CAB broadcast codes. They pointed out, among other things, that certain contests were unfair or that the solutions could not be explained, such as the following three games: [translations] “How many circles are there in the image?”, “Add all the numbers in all the triangles” and “Add all the figures and numbers in the image”. At the end of each contest, the host reveals the answer on the screen or the total if the game involves calculations; however the complainants are of the view that even with the answers or method of calculation displayed on the screen, it is often difficult, and sometimes impossible, to reconstruct the underlying reasoning to the solution, given that the methodology used is far from clear. (A more detailed description of the games can be found in Appendix A, in French only).
The complainants also pointed out that there is often a lapse of several minutes between the time when the quiz or puzzle is displayed on the screen and the time when the final call is taken in the studio. They are of the opinion that, contrary to the broadcaster’s contention, the telephone system does not take calls on a random basis.
In addition, one complainant suggested that the sound and visual effects constitute “subliminal” devices designed to induce viewers to participate and that those devices should be prohibited. He also objected to the fact that the host gives additional clues as the show progresses to help the players find the solution. He feels that that approach is unfair to the players who participate at the beginning of the program. Finally, he pointed out that, in his opinion, the contents of the program create an unfavourable public reaction towards the sponsor, therefore violating Clause 13 of the CAB Code of Ethics.
In its reply to the complainants, V stressed that the rules are clearly explained to the viewers, that the telephone system is verified by [translation] “an internationally recognized accounting firm” and that the solution to each game is displayed on the screen at the end of the program (the texts of the complaints and broadcaster responses are available in Appendix B, in French only). V also provided the CBSC with a document giving a detailed explanation of the method for arriving at the answers to some of the games.
THE DECISION
The Quebec Regional Panel examined the complaints under the following clauses of the Canadian Association of Broadcasters’ (CAB) Code of Ethics:
Clause 12 – Contests and Promotions
All on-air contests and promotions shall be conceived and conducted fairly and legitimately and particular care shall be taken to ensure that they are not misleading, potentially dangerous or likely to give rise to a public inconvenience or disturbance and that any prizes offered or promises made are what they are represented to be.
Clause 13 – Advertising (General Principles)
b) Advertising is to be made most effective not only by the use of an appropriate selling message but by earning the most favourable reaction of the public to the sponsor by providing the best possible programming.
Clause 15 – Prohibition of Subliminal Devices
Broadcasters must take all reasonable steps to avoid broadcasting any advertising material or program that makes use of any subliminal technique or device, which means any technique or device that is used to convey or attempt to convey a message to a person by means of images or sounds of very brief duration, or by any other means, without that person being aware that such a device is being used, or being aware of the substance of the message being conveyed or attempted to be conveyed.
The Panel Adjudicators read all of the correspondence and viewed the episodes in question. The Panel concludes that V did not violate Clause 13 concerning advertising or Clause 15 regarding Subliminal Devices, but it did breach Clause 12 concerning Contests.
Telephone System
The Panel acknowledges that the frequency and especially the timing of the calls do raise questions. However, in its reply to the complainants, the broadcaster contends that [translation] “telephone calls, whether from land lines or mobile devices, are chosen at random without human intervention by an automated technical system” and goes on to specify that the system in question is supervised and verified by [translation] “an independent third party, namely an internationally recognized accounting firm”. As the CBSC has pointed out in past decisions, it has neither the mandate nor the resources to verify the operation of the telephone system used during the program as this constitutes an off-air issue.1
Representation of the Sponsor
As indicated earlier, one of the complainants pointed out that the program at issue creates an unfavourable reaction towards the sponsor, thereby violating, in his opinion, Clause 13 b) of the CAB Code of Ethics. The Panel wishes to recall that, in the case of L’instant gagnant, the producer and the sponsor are one and the same as this is a paid program. In other words, the broadcaster sold the air time to the producer. In this case, the Panel concludes that there can therefore be no breach of Clause 13 of the CAB Code of Ethics.
Clues
One complainant raised the fact that the host provides additional clues as the game progresses and indicated he feels that practice is prejudicial to those who participated in the same game earlier in the evening. The Panel points out that nothing prevents a participant from calling the program more than once in order to benefit from the additional clues provided from time to time by the host.
“Subliminal” Devices
One complainant suggested that the program uses subliminal techniques such as sounds and flashes of images in order to stress the viewers, and was of the view that this is a violation of Clause 15 of the CAB Code of Ethics. The Panel notes that Clause 15 of the aforementioned Code defines subliminal devices as messages that are conveyed “without [a] person being aware that such a device is being used, or being aware of the substance of the message being conveyed or attempted to be conveyed”. After having watched a number of hours of the program, the Panel believes that, in this case, the techniques used by the program’s originators (flashing images and stressing sounds) are clearly evident, that the viewers are fully aware of them and that their very purpose is to pique the latter’s interest and incite them to actively participate in the program. There is nothing subliminal about them and the Panel therefore concludes that the broadcaster did not breach the provisions of Clause 15 of the CAB Code of Ethics.
Solutions to the Puzzles
The Panel notes, however, that the complainants are mainly concerned by the solutions to the games and puzzles. They are of the view that in many cases the solutions make no sense or that the methodology given to arrive at the answers is not explained, or that the solutions put forth differ from those given for similar games presented in other episodes.
As mentioned above, V provided the CBSC with more detailed explanations on the methodology used to arrive at the solutions given for some of the games cited in the complaints. Based on those explanations, the Panel was able to validate some of the suggested solutions, but was unable to validate them all.
V provided explanations for all the games mentioned in the complaints except those aired on March 23, 2012 (complaint 11/12-1452) and the 14th and 28th of September (complaint 12/13-0122). In the absence of explanations, neither the Panel Adjudicators nor the CBSC staff were able to substantiate the solution given for the games presented on those dates. Moreover, the explanations given by V concerning the complaint of April 13, 2012, namely that the figure “-13” appearing on the screen should have been read as “-1” and “3” does not hold water. In its detailed explanation, V claims that the figures “1” and “3” are separated by a space in the image on screen and are not the same height. With all the time needed to examine the game on screen and in print format according to the explanations given by V, the Panel Adjudicators and the CBSC staff were unable to differentiate the space in question. The Panel feels that a precise measuring device would have been needed to do so.
Based on the analysis of the facts, some of the games at issue in the aforementioned complaints do not meet the transparency requirements of Clause 12 of the CAB Code of Ethics.2 The Panel therefore concludes that V violated the provisions of Clause 12 of the CAB Code of Ethics in airing quizzes that lack transparency, more particularly those presented on March 23, April 13, September 14 and September 28, 2012.
Broadcaster Responsiveness
In all CBSC decisions, the Panels assess the broadcaster’s response to the complainant. The broadcaster need not agree with the complainant’s position, but it must respond in a courteous, thoughtful and thorough manner. In this case, V requested and obtained an additional delay to reply to the complainants, given the large number of complaints filed. However, the explanations given by V to the complainants, while courteous, did not deal specifically with their concerns regarding fairness, transparency and the underlying logic of the games. It would have been preferable for V to provide the additional explanations it sent to the CBSC a few days prior to the Panel meeting earlier in the process. That said, the Panel concludes that the broadcaster has met its obligations of responsiveness and, subject to the announcement of this decision, nothing further is required in that regard in this instance.
ANNOUNCEMENT OF THE DECISION
V is required to: 1) announce the decision, in the following terms, once during prime time within three days following the release of this decision and once more within seven days following the release of this decision during the time period in which L’instant gagnant was broadcast, but not on the same day as the first mandated announcement; 2) within the fourteen days following the broadcasts of the announcements, to provide written confirmation of the airing of the statement to the complainants who filed the Ruling Requests; and 3) at that time, to provide the CBSC with a copy of that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by V.
The Canadian Broadcast Standards Council has found that V breached the Canadian Association of Broadcasters’ (CAB) Code of Ethics in its broadcast of L’instant gagnant on March 23, April 13, September 14 and September 28, 2012. The games presented during these episodes lacked transparency, contrary to Clause 12 of the Code.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.
1 TQS re Call TV (CBSC Decision 08/09-1834 & -1856, August 11, 2009) and V re Call TV (version 2) (CBSC Decision 09/10-1563 & -1735, January 25, 2011).
2 See the following decisions in which the CBSC dealt with call-in game programs and found violations of Clause 12: TQS re Call TV (CBSC Decision 08/09-1834 & -1856, August 11, 2009); CIII-TV (Global Ontario) re Play TV Canada (CBSC Decision 09/10-0201+, April 1, 2010); TQS re Call TV (version 1, round 2) (CBSC Decision 08/09-1827+ & 09/10-0025+, August 24, 2010); and V re Call TV (version 2) (CBSC Decision 09/10-1563 & -1735, January 25, 2011).