Caryn Gootkin analyses the MasterChef prize controversy, looks at the small print in M-Net’s legal arsenal and finds that all the ingredients for a disaster were there from the start. Who will be the winner? M-Net/ the Citizen/ Deena Naidoo/ 702/the lawyers?
It appears that Eusebius McKaiser is not the only one taking flak for his handling of the MasterChef prize announcement. M-Net has come under fire from critics for misrepresenting the true nature of the competition’s prize.
Deconstructing the events
The Citizen newspaper broke the story on 27 July (What’s cooking at MasterChef?) quoting the winner, Deena Naidoo, as saying, “It has been presented as though I have acquired…a new restaurant as part of the main prize…But this is far from true.”
M-Net’s PR machine acted immediately to avert a publicity disaster. Together with Tsogo Sun, the sponsor of the restaurant portion of the prize, they issued a press release denying that any false impression had been created and refuting the Citizen’s claims that Naidoo was dissatisfied with his prize.
Later that day the Citizen claimed that “the reporter even took the extra step of confirming with Naidoo the accuracy and veracity of the quotes attributed to him in the final version of the story before it was sent to print”. (“The Citizen stands by story”)
Just when we thought we knew who the contestants of this grand media finale would be, 702’s John Robbie entered the fray. Apparently, on his show that day he labelled the Citizen report “misleading” and gave M-Net’s senior publicist, Ingrid Engelbrecht, an opportunity to comment. She called the Citizen article “very inaccurate”. The Citizen, aggrieved that Robbie did not give them a chance to reply to these accusations, then lodged a complaint with the Broadcasting Complaints Commission of South Africa.
While we await the outcome of the BCCSA’s investigation, let’s go back to the beginning to see if we could have averted or, at least, predicted this media war.
How did we get here?
Last year M-Net announced it would bring the successful MasterChef series to South Africa and posted relevant information on its website. One of the first posts was the “Terms and Conditions” of participation in the series. (As you know I’m a lawyer by training so I always go back to the source when studying the progression of a dispute.)
Terms and conditions are the bullet-proof vests of legal documents. As armour, they are designed to protect the wearer from fatal attacks and are often concealed beneath layers of fashionable outer garments. Similarly, terms and conditions are the protection companies fall back on if their business practices are questioned. And they rarely include these in their marketing material, preferring more enticing words.
The MasterChef version has all the standard ingredients for a power imbalance: indemnities, waivers, assignment of rights and wide-ranging consents. But the most dangerous of all is hidden at the end:
“24. By participating in Master Chef you accept and agree to abide by these rules, terms and conditions set out herein and such rules and conditions that the Producers may issue in relation to the Audition Phase and further phases of Master Chef from time to time.”
For now let’s put aside whether such a far-reaching provision (an agreement to agree to further unspecified terms in the future) is legally valid and look at what the wannabe chefs signed up for. We’ll have to improvise a bit here as my request for copies of documents signed by the contestants was refused by M-Net.*
At the time of entering they have to agree to all the rules disclosed to them at that stage as well as any other rules the producers may issue or face immediate disqualification and other legal consequences. Call me over-cautious but I doubt I’d sign on that dotted line and commit to three months of work as a live performer without pay in an isolated house with very little access to the outside world. And, probably, a lifetime gag. (I gleaned some of this information from an interview Chris von Ulmenstein conducted with Guy Clark after he was eliminated. The link appears below.)
And the winner is…..
Notable in its absence from the terms and conditions is any mention of the prizes. (In fact, the lengthy document, filled with jargon and complex words, unsurprisingly imposes almost no obligations on M-Net.)
But, helpfully, at various times over the past year they have boasted about what South Africa’s first MasterChef would win. On 24 October 2011, well before the closing date for entries, they put the following up on their FAQs website:
“What prizes does the winner of MasterChef SA receive?
MasterChef SA offers the most valuable prize in South African television history… R250 000, a brand new Hyundai Elantra 1.6 GLS, a 7-day culinary experience in Italy and an Italian cookery course.., a year’s supply of Nederburg Winemaster’s Reserve wines and a customised sommelier course and one-on-one masterclasses with Nederburg’s cellarmaster, as well as their very own Southern Sun restaurant at Sun Square Montecasino. The total prize value for South Africa’s first MasterChef exceeds R8 Million”.
On 5 December 2011, during the audition process, M-Net published the following on its website:
“The winner…will become the biggest reality show prize winner in the history of South African television. Over R8 million worth of prizes are awaiting the amateur chef whose culinary skills will impress the judges…South Africa’s first MasterChef will receive cash, a car, a trip to Italy, a sommelier course, one-on-one master classes from an award-winning cellarmaster, wine – and a first for local reality shows: his or her very own restaurant!”
Later on the same page they referred to the last prize as “a coup for the series, the MondoVino restaurant at Southern Sun’s Montecasino!”
M-Net may regret using plain language
In all of these marketing efforts M-Net very clearly defines the prizes. They use three different expressions to describe the restaurant portion of the prize:
- their very own Southern Sun restaurant at Sun Square Montecasino
- his or her very own restaurant!
- the MondoVino restaurant at Southern Sun’s Montecasino!
(Clearly M-Net were very excited about this part of the package as they lavished not one but two exclamation marks on it.)
The language they used states unambiguously that the winner will receive the restaurant as a prize. No other interpretation of these three phrases is plausible; they all convey ownership. (Of course, the version in the legal documentation between M-Net and the contestants may state otherwise, but public were told the winner would receive their own restaurant.)
However, after the Citizen published its 27 July article, M-Net explained this portion of the prize in considerably more complicated terms:
“The total restaurant prize included… the full-time running and rebranding of the floor space. This arrangement was rent free, for two years. However, M-Net and Tsogo Sun structured the sponsorship to permit the MasterChef winner to choose between various options of participation in the restaurant, knowing that the winner might not be able to take up such a fantastic prize. Deena elected a joint venture operation where he will share in the restaurant profits and partake in the rebranding and relaunch of the restaurant. This will run for two years. This decision was based on the fact that Deena, his wife and children are unable to relocate to Johannesburg at this time.”
Some time ago Ingrid Engelbrecht told whalecottage.com that “Southern Sun is happy to tailor-make the options in order to meet the needs of the winner and to ensure that all parties are happy going forward with this amazing prize. They will take into account factors such as the contestant not being from Johannesburg, having a family and any other obligations, and will assist to whatever degree is necessary”.
So, it is not as if the issue only arose when Deena elected not to leave Durban. This loose financial arrangement was always an option. Now, if that is the case, why not advertise the restaurant portion of the prize more accurately, possibly as “an opportunity to redo, run and share in the profits of MondoVino restaurant for two years” or something along those lines?
Remember, although M-Net’s contractual obligations are towards the contestants , it also has duties towards us, its subscribers. Maybe I should explore these more fully in another column.
For now, I’m interested to see whether the Advertising Standards Authority takes issue with this. Its code of practice states that “(a)dvertisements should not be so framed as to abuse the trust of the consumer or exploit his lack of experience or knowledge or his credulity.” (Section II, clause 2 2 –Honesty). A clever lawyer could certainly argue our trust has been abused.
I know nothing
It is proving very difficult to find out clearly what the contestants were promised, how the restaurant portion of the prize was explained to them and whether Deena did tell the Citizen journalist that what he got was far from what he expected. Ingrid Engelbrecht concedes that Deena did speak to a journalist form the Citizen, but won’t comment on the content of the conversation as she was not present. All that she would tell me was that “(i)t is currently (M-Net’s) understanding that some of the comments that Deena made to the journalist were misinterpreted and misconstrued.”
A classic case of “he said she said”. It will be interesting to see how the BCCSA handles this, if it falls within its ambit to decide whose version of that conversation is true.
The culprit behind this cloak-and-dagger mystery is another scary legal weapon: the confidentiality undertaking.
The contestants obviously had to sign one. Again, I’ve asked to see this to assess what it covers but, unsurprisingly, the confidentiality undertaking is being kept confidential. I also sent Deena a tweet asking if I could chat to him about this column but, once again, unsurprisingly, he didn’t come back to me.
Chris von Ulmenstein of the Whale Cottage Portfolio blog interviewed Guy Clark, one of the top 18 contestants, after his elimination. She was surprised to learn that Guy needed permission from Ingrid Engelbrecht before he could meet her.
“He asked me to send a copy of this article to Ms Engelbrecht, for her approval, demonstrating the extreme confidentiality which the 18 finalists have been subjected to via a contract, which could see the MasterChef SA title being removed, and M-Net suing the contestant(s) leaking any information for damages ‘which one would have to pay off for the rest of one’s life’, Guy said”.
My research revealed that the publicly available terms and conditions for MasterChef Ireland are more comprehensive than our local version. The Irish document is frighteningly complicated, written in dense legalese. What is clear, however, is the extent of the confidentiality undertakings. If our contestants had to sign anything along these lines, I don’t expect Deena will ever talk to me, or anyone else for that matter, about what actually happened.
So, where does that leave us?
The battle was predictable given the stakes, the number of players and the apparent clash between M-Net’s marketing material and its obligation towards the contestants. I say apparent because I’ve not seen the written contract but to me it’s clear there is a difference between what was promised publicly and how M-Net described the prize when questioned.
So, the jury’s still out on who the true winner of MasterChef SA was. It’s certainly not the subscribers. And, although I hope to be proved wrong, I’m don’t think it’s Deena either.
* I emailed a list of questions to Ingrid Engelbrecht of M-Net. She replied to some of the questions but would not show me the contract between M-Net and the contestants, stating that “(c)ontracts between the broadcaster and the contestants of our shows remain strictly private and confidential. As such, I cannot make this information available to you