BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

An episode of Hollywood Sex, a two-part series dealing with the sex industry in Hollywood, was broadcast on TV2 on 2 September 1999 beginning at 9.30pm.

Rosemary McElroy, on behalf of Women Against Pornography, complained to Television New Zealand Ltd, the broadcaster, that in spite of the warning preceding the programme, the average adult viewer would not have expected what she described as the degree of "pornographic" content which it contained. She contended that the programme breached accepted norms of good taste and decency, and cited several examples of what she considered to be objectionable material.

TVNZ noted that various aspects of the sex industry had been depicted, and that the emphasis had been on the curious and grotesque. While the nature of the sexual activity discussed had been indicated, there had been no scenes of sexual intercourse or any full frontal nudity, it observed. It declined to uphold the complaint, given that the programme was classified for an adult audience and was screened at 9.30pm. Furthermore, it considered that the programme’s title pointed unambiguously to its content.

Dissatisfied with TVNZ’s decision, Ms McElroy referred it to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds the complaint that the programme breached standard G2.

Decision

The members of the Authority have viewed the item complained about and have read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.

The second of a two part programme entitled Hollywood Sex was broadcast on TV2 on 2 September 1999 beginning at 9.30pm. It had an AO classification and was preceded by a warning advising viewers that its content was intended for an adult audience. The programme depicted various aspects of the sex industry in Hollywood, with the emphasis being on the curious and grotesque. It included a sequence where a man was being prepared for a surgical procedure involving the insertion of "love beads" in his penis, and he was seen with black tape over his mouth which was intended to suppress his screaming. There was also a sequence which described various bondage items.

Ms McElroy, on behalf of Women Against Pornography, complained to TVNZ that the programme’s content breached accepted norms of decency and good taste because, she said, it was pornographic.

She described the sequence where the man was having the love beads inserted in his penis as "torture", and she argued that this and the sequence depicting a bondage room satisfied the Classification Act’s description of objectionable material because it showed satisfaction from the infliction of pain and cruelty. Ms McElroy argued that:

The surgical table with foot stirrups, the whips, the contraption designed to constrain a woman by hanging her by her hands and feet, the suggestive overtones of unmentionable sexual practices disregard the rules put in place in the Criteria for Classifying Material: these state that one of the factors given weight is torture, significant cruelty, and things that degrade and dehumanise anyone. [the complainant’s emphasis]

Ms McElroy argued that a disturbing feature of the programme was that it several times interspersed the sexual content with clips of young people skateboarding and rollerblading. In her view, it was clear that it was intended to equate innocent, healthy activity with the sexual aspect of the programme. She contended that this amounted to "outright manipulation" and a breach of standard G7 of the Television Code of Broadcasting Practice.

Ms McElroy also complained about the time of the broadcast, which she mistakenly believed had been at 8.30pm.

Finally, she complained about the liberal use of the word "fuck" in the programme, which she said was not acceptable to the average viewer, and neither was nudity for sexually titillating purposes. She concluded by noting that:

The programme revealed the extent of its disgrace when one porno film maker said that he aspired to "taking porn to the children".

She suggested that TVNZ owed the public of New Zealand an apology for broadcasting the programme.

TVNZ advised that it had assessed the complaint under standards G2, G7 and G8 of the Television Code of Broadcasting Practice. Those standards require broadcasters:

G2  To take into consideration currently accepted norms of decency and taste in language and behaviour, bearing in mind the context in which any language or behaviour occurs.

G7  To avoid the use of any deceptive programme practice in the presentation of programmes which takes advantage of the confidence viewers have in the integrity of broadcasting.

G8  To abide by the classification codes and their appropriate time bands as outlined in the agreed criteria for classification.

It began with the observation that the programme depicted various aspects of the Hollywood sex industry, with the emphasis being on the "curious and grotesque". It noted that extroverted participants spoke freely and openly about unusual sex practices. In its view, viewer interest in the programme would have been in the "preposterous behaviour" of the participants, rather than in any sense of sexual titillation.

Turning to the standard G2 complaint, it noted first that there was no sexual intercourse depicted, nor any full frontal nudity. It noted that the programme did not begin until 9.30pm, that it had an AO certificate which was shown at the beginning of the programme and after each commercial break. In addition, TVNZ recorded, it was preceded with a warning which referred specifically to nudity, sex and language, and reminded the audience that the programme was recommended for viewers over the age of 18. TVNZ also considered that the title of the programme would have pointed unambiguously to its content. That title, combined with the warning and classification, provided a clear indication to viewers whose preferences did not include this type of material to switch off, it wrote. TVNZ concluded this aspect by noting that although sex was the subject, the programme could not be accused of using sex to exploit one gender for the gratification of another. "The activities were spread evenly among both men and women", it observed.

Turning next to the sequence described by Ms McElroy as depicting torture, TVNZ said that the man was shown to participate willingly in the procedure to insert the love beads. It submitted that surgical instruments were present but the man’s genital area was never shown. The interest in this sequence, and in the "bed and bondage" story, was in the extraordinary things that Hollywood people got up to in attempting to fulfill their sexual needs, it observed. Viewers were left with a sense of the emptiness of the lives of those whom they had been watching, while the participants persuaded themselves that the reverse was true, the broadcaster added.

The skateboarding/summer fun scenes, TVNZ wrote, were seen to contrast with the sex sequences, rather than equate with them as Ms McElroy suggested, and implied that the world was going about its normal business while "these strange practices were going on". It declined to find, under standard G7, that the scenes represented a deceptive programme practice designed to equate youth with the sex industry.

In considering the use of the word "fuck", TVNZ said that in the context of a film about sex which screened at 9.30 pm, and in which the language did not dominate the programme and was not pervasive, it did not breach the standards.

Referring to standard G8, the broadcaster stressed that by scheduling the programme at 9.30 pm with an AO certificate, it abided by the classification codes and the agreed criteria for those.

TVNZ concluded by expressing regret that the complainant and her co-members were upset by the programme. Hollywood Sex was not to everyone’s liking, it wrote, but not liking a programme was not the same thing as establishing a breach of programme standards.

In referring the complaint to the Authority, Ms McElroy wrote that she accepted that the programme was screened at 9.30 pm.

She said she found it absurd that TVNZ felt that the absence of sexual intercourse and full frontal nudity "somehow made the programme respectable". She was sorry, she wrote, that the broadcaster considered sexual intercourse and exposure of genitals were appropriate "on our national television channels at any hour". New Zealand now had a significant population of immigrants who were offended and embarrassed at the low-level sex promoted by television channels, she noted.

Noting the requirements of standard G8, Ms McElroy referred to the Authority’s research on Pay Television and its conclusion that R18 films should not be screened before 10.00pm. She also considered that it was a breach of the standard to advertise the R18 content in family viewing time. She suggested that this would have generated curiosity by young viewers.

Referring to the sequence on the insertion of "love beads" into a man’s penis, Ms McElroy repeated that it was clear that pain had been inflicted. She considered her description of the process as torture was accurate because she felt sure that the man had no idea of how painful the procedure would be, and that adequate anaesthesia was deliberately withheld. She added:

The three ghoulish figures lined up in the opening shot plus the macabre sound effects and display of surgical instruments conveyed the sort of dread we associate with deliberately inflicted pain and cruelty.

Ms McElroy wrote that she found TVNZ’s comments on the bed and bondage story very weak. She contended that there was only one emphasis and that was on the supposed excitement of perverted sex and likely cruel practices.

With respect to her complaint under standard G7, Ms McElroy maintained that the clips of young people skateboarding were inserted to bring "an insidious sense of normality to the grossly abnormal programme content". She contended that the standard had been breached by the inclusion of this footage.

As for the use of the word "fuck", Ms McElroy wrote that she considered it regrettable that TVNZ defended its use on the basis that it was acceptable in a film about sex. She argued that normal people still found this word highly offensive.

She noted that TVNZ had not responded to her complaint about the porn producer stating that his endeavours were "all about love and taking porn to the children". This comment, she repeated, revealed plainly the intrinsic evil running through the programme.

In its report to the Authority, TVNZ emphasised that it was permitted to broadcast AO material after 8.30pm. It stressed that the programme started fully an hour after the 8.30pm watershed, that it carried an AO certificate and that a warning was broadcast before its screening, explicitly referring to the programme’s content. Its title also pointed unambiguously to the content, TVNZ wrote.

The Authority’s Findings

When the Authority considers whether the programme breached standard G2, it takes into account the context in which the broadcast complained about occurs. The context is relevant, but not decisive, to the Authority’s determination of whether the programme breached community standards of good taste and decency.

The contextual factors which the Authority considers relevant on this occasion include the time of broadcast, the programme’s AO classification, and the fact that a warning, which the Authority considers to be clear and explicit, preceded the programme. In addition, it considers that the programme’s title gave an unambiguous signal as to its likely content. The Authority also considers as relevant the fact the programme was broadcast on free-to-air television.

In reaching its decision, the Authority notes that the programme’s content was clearly aimed at adult viewers. Nevertheless, sex was the sole and uninterrupted focus of the programme and was, in repeated instances during the broadcast, presented in graphic detail.

The Authority notes too that the programme material was presented without any explanation or commentary of substance. It considers that the absence of such explanation or commentary contributed to an impression that the material was gratuitous and voyeuristic, and that the primary purpose of the programme was titillation.

While programmes which are scheduled during AO time and which are classified AO are intended for adult audiences, broadcasters are still obliged to comply with the requirement to observe standards of good taste and decency. The Authority considers that, notwithstanding the contextual factors cited above, the programme’s content exceeded the limit of what is acceptable in terms of decency and taste in behaviour on free-to-air television at 9.30pm. Accordingly, it upholds the complaint that the programme breached standard G2.

Next the Authority considers the complaint under standards G7 and G8. The Authority notes the complainant’s suggestion that the footage of the skateboarders and rollerbladers was designed to deceive viewers into a belief that the activities portrayed were normal and thus breached standard G7. The Authority has, in previous decisions, confined the application of this standard to deceptive practices in the technical production and presentation of programmes. It concludes that it is not relevant here. As for the complaint under standard G8 that the programme was not properly classified, the Authority notes first that the programme was classified AO, and was broadcast during AO time. Notwithstanding its finding above that it breached the good taste standard, given the classification options available to television broadcasters, it finds no breach of standard G8.

For the reasons set forth above, the Authority upholds the complaint that Television New Zealand Ltd’s broadcast of Hollywood Sex on TV 2 on 2 September 1999 at 9.30pm breached standard G2 of the Television Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaint.

Having upheld a complaint, the Authority may impose penalties pursuant to s.13(1) and s.16(4) of the Broadcasting Act 1989. It invited submissions from the parties as to penalty.

The Authority has considered the submissions. It considers that the decision to broadcast this programme contained an element of judgment which TVNZ exercised incorrectly on this occasion. As recorded in the decision, this matter raised a difficult question about where the boundary of acceptability is drawn. In all the circumstances, the Authority considers that the publication of this decision is sufficient to remind broadcasters of their responsibilities in this area. It finds that no penalty is warranted in the circumstances.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
9 December 1999

Appendix

The following correspondence was received and considered when the Authority determined this complaint:

1.    Rosemary McElroy’s Complaint (on behalf of Women Against Pornography) to
      Television New Zealand Ltd – 5 September 1999

2    TVNZ’s Response to the Formal Complaint – 22 September 1999

3.    Ms McElroy’s Referral to the Broadcasting Standards Authority – 6 October 1999

4.    TVNZ’s Response to the Authority – 19 October 1999

5.    Ms McElroy’s Final Comment – 2 November 1999

6.    TVNZ’s Submissions on Penalty – 24 November 1999

7.    Ms McElroy’s Submissions on Penalty – 30 November 1999