BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Strassman – ventriloquist – offensive language – fucking

Findings
Standard G2 – AO – warning – context relevant – freedom of expression – limitations must be justifiable – no uphold

This headnote does not form part of the decision.

Summary

A ventriloquist in Strassman, broadcast on TV2 at 9.30pm on 4 July 2000 used the phrase "I wish you had a fucking brain" when he spoke to one of his puppet characters.

Paul Schwabe complained to Television New Zealand Ltd, the broadcaster, that the broadcast of "gratuitous offensive language" contravened the Broadcasting Act's requirement for broadcasters to maintain standards consistent with good taste and decency.

TVNZ responded that Strassman was an adult comedy programme broadcast at 9.30pm which carried an AO certificate and was preceded by a warning advising that it contained strong language. In that context, it did not consider that the language breached standard G2. It declined to uphold the complaint.

Dissatisfied with TVNZ's decision, Mr Schwabe referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority declines to uphold the complaint.

Decision

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

"I wish you had a fucking brain" was the expression used by a ventriloquist talking to one of his puppet characters in Strassman broadcast on TV2 on 4 July 2000 beginning at 9.30pm.

Paul Schwabe complained to TVNZ that the language was gratuitous and offensive and contravened the provision in s.4(1)(a) of the Broadcasting Act to maintain standards consistent with the observance of good taste and decency.

As requested, TVNZ considered the complaint under s.4(1)(a) of the Broadcasting Act 1989, which reads:

4(1) Every broadcaster is responsible for maintaining in its programmes and their presentation, standards which are consistent with

a)  The observance of good taste and decency

TVNZ began by noting that while the ventriloquist's props were reminiscent of children's toys, the content of the programme was obviously adult. It observed that the word "fucking" had been used on two occasions during the programme. In assessing the complaint, TVNZ said that the intent of s.4(1)(a) was made clear in standard G2 of the Television Code of Broadcasting Practice, which requires 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.

The context in this case, TVNZ continued, was that Strassman was an adult comedy programme which commenced well after the watershed, was classified as AO, and was preceded by a warning advising viewers that it contained strong language. It noted that the ambience of the set suggested late-night comedy which traditionally was of a risque nature.

After consideration of the programme, TVNZ concluded that the two "understated uses of 'fucking'" would not have exceeded what viewers of the genre would regard as "currently accepted norms" of decency and taste. The words, it said, were used with comedic intent, and not delivered in a manner which would cause widespread offence.

TVNZ concluded that in the context of a programme "loaded with innuendo and earthy humour" the words had not been out of place or in breach of standard G2. It declined to uphold the complaint.

When Mr Schwabe referred the complaint to the Authority, he described the programme as "particularly insidious" because of what he said was its obvious appeal to young children, and he noted that give-away teddy bears featured in its promotions.

Mr Schwabe wrote:

Carefully selected, highly influential "heroes" of our youth are "interviewed" by a ventriloquist with various dolls, which along with the glitz and glamour, are used to add a powerful smokescreen of respectability to the foulest of language included in the programme, in this case "fucking", a macho, anti-woman term, the most offensive language, I suggest, that anyone in NZ could be exposed to.

Mr Schwabe took exception to TVNZ's response, arguing that it had misinterpreted s.4(1)(a) of the Broadcasting Act and instead relied on the broadcaster's interpretation as set out in standard G2. He also contended that TVNZ had misconstrued the standard's reference to currently accepted norms as being what was acceptable to the target audience.

Mr Schwabe suggested that TVNZ's interpretation of s.4(1)(a) was that broadcasters would comply:

• Except when broadcasters consider that this responsibility is not mandatory, eg at certain time of the day or
• Whenever the broadcaster considers that humour is involved or
• Whenever a broadcast is preceded by a warning notice or
• Whenever the broadcaster is catering for the tastes of a particular target audience etc

He asked:

Can we expect special time slots catering for audiences wishing to view rape or bestiality or necrophilia?

In Mr Schwabe's view, broadcasters seemed determined to establish a regime whereby selected programmes would be provided for particular interest groups. He argued that the Act made it abundantly clear that all broadcasts should be consistent with good taste and decency regardless of the time or the target audience.

Mr Schwabe suggested that TVNZ's "remarkable response" to his complaint demonstrated that standard G2, which he said was written by broadcasters, was being used by TVNZ to subvert the intention of s.4(1)(a) by introducing the notion of context, and by "deliberate manipulation" of the "currently accepted norms" concept.

Mr Schwabe suggested that the Act should take precedence over standard G2 which he said should be deleted from the Codes. He added:

The elegant and unambiguous Act Section 4(1)(a) appears perfectly adequate for continuing to serve the public of New Zealand and guide irresponsible broadcasters, provided that its simple requirements are enforced by our Broadcasting Standards Authority.

When it responded to the Authority, TVNZ noted first that Mr Schwabe had raised issues about the interpretation of the standards requirements in the Broadcasting Act. TVNZ pointed out that the Code of Practice could not be dismissed as being what the broadcasters themselves had written, noting that it was approved under s.4(1)(e) and drawn up by broadcasters in conjunction with the Authority after a process of public consultation.

Next, TVNZ noted, as an approved Code, the document was seen by broadcasters as providing guidelines on how the statutory requirements listed in section 4 were to be interpreted. Further guidance was taken from the Authority's interpretation of standards in its regularly published decisions, TVNZ continued. It noted that the Authority had been consistent in the last decade in recognising and accepting that context played a significant role in the consideration of complaints alleging breaches of good taste and decency. It quoted from a recent decision (Decision No: 2000-104) in which the Authority wrote:

As a general principle, the Authority notes, language which on its own may be offensive can, in a relevant context, be acceptable. Conversely, language which on its own may be acceptable, may, when used in a specific context, such as in a threatening or abusive manner, breach broadcasting standards.

The decision continued:

The Authority cautions that this decision is not intended to be read as permitting potentially offensive language to be broadcast. It re-emphasises that the context is of overarching importance and will always be a determining factor when assessing broadcasting standards.

TVNZ accused Mr Schwabe of hyperbole for suggesting that broadcasters would potentially cater for audiences wishing to watch rape, bestiality or necrophilia. In reiterating its view that no breach of standards occurred, TVNZ emphasised that the language had not been sustained or aggressive and in its opinion would not have exceeded the expectations of the audience attracted to this type of programme.

Making a final comment, Mr Schwabe said that he noticed TVNZ had suggested that the interpretation of decency in broadcasting rested with the audience attracted to the particular type of programme, yet it had ridiculed his suggestion that its interpretation of standard G2 would have justified broadcasts showing paedophilia, for example.

In Mr Schwabe's view, the criteria on decency should be determined by society in general, and not be dictated by those "with a demonstrated or vested interest in degrading that criteria". He noted that the codes had been approved by an earlier Authority membership, and expressed the hope that the present members had "the power and courage" to delete and amend existing codes which broadcasters seemed to be using to circumvent s.4(1)(a) of the Broadcasting Act.

Mr Schwabe said he found it most objectionable that TVNZ appeared not to consider the language offensive because it was labelled as comedy. He also objected to the use of such language as entertainment because, in his view, it was in plain contravention of the Act.

The Authority's Findings

The Authority deals first with Mr Schwabe's assertion that the wording of standard G2 subverts the intent of the legislation. The Authority records that the Codes of Broadcasting Practice are developed by broadcasters, and subsequently approved by the Authority as provided by s.21 of the Broadcasting Act 1989. The wording of standard G2 acknowledges that in interpreting the statutory provision, regard may be had to the context in which the language or behaviour occurs. The Authority does not agree with Mr Schwabe that the wording of standard G2 misconstrues the intention of the Act.

"Good taste and decency" is a broad concept which must be applied to factual situations and, when determining how it applies, the Authority must have regard to the right to freedom of expression as provided in the New Zealand Bill of Rights Act 1990. The Authority is required to apply s.4(1)(a) of the Broadcasting Act in a manner which does not unreasonably limit that freedom. It is well established in Bill of Rights jurisprudence that limits placed on the right to receive information must be proportionate to the objective of such limits. If the objective is, for example, to protect children, then a reasonable limit could be to restrict material to adult viewing times and to give a warning prior to the broadcast. Limitations such as these are implicit in the wording of standard G2, which recognises that the concept of good taste is not a static concept. It cannot be ascertained by a prescriptive approach. Thus, the standards in the Television Code of Broadcasting Practice are designed to give effect to the provisions of the Broadcasting Act, while at the same time acknowledging broadcasters' right to freedom of expression.

The Authority's task is to assess the complaint in the light of competing rights and freedoms and to consider the material complained about in its context. It considers the relevant contextual factors to be the time of the broadcast, the warning preceding the programme which referred specifically to language, the classification of the programme as AO and, to a lesser degree, the expectations of the audience and the comedy format of the programme.

The Authority notes that the expression complained about ("I wish you had a fucking brain") was not said in a sexist, aggressive or anti-woman tone, as Mr Schwabe suggests but, in the Authority's view, appeared consistent with the habitual interaction between the ventriloquist and the persona of his puppet characters upon which much of the programme's humour was based. In the late evening time slot and in the programme genre, the Authority concludes that the language did not breach standard G2.

Turning to Mr Schwabe's argument that the programme had obvious appeal to young children, as evidenced by the give-away teddy bears featured in its advertising, the Authority observes that there is no reason to suppose that the bears would not appeal to adult viewers. It also notes that the humour of the programme is to a degree based upon the expected "innocence" of the props compared with their somewhat adult view of the world.

As for Mr Schwabe's contention that broadcasters' interpretation of the concept of decency and good taste would result in time slots catering for audiences wishing to view rape, bestiality or necrophilia, the Authority observes that such material would, in most cases, be likely to exceed community expectations.

As a final point, the Authority recognises that, to some viewers, including Mr Schwabe, the language used in Strassman was offensive and unsuitable for broadcast at any time. It also emphasises that this decision does not condone the use of such language in broadcasts. Each decision is confined to its particular facts and involves the application of an objective test which reflects current community attitudes.

For the reasons given, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
5 October 2000

Appendix

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

1.    Paul Schwabe's Complaint to Television New Zealand Ltd – 5 July 2000

2.    TVNZ's Response to the Formal Complaint – 19 July 2000

3.    Mr Schwabe's Referral to the Broadcasting Standards Authority – 14 August 2000

4.    TVNZ's Response to the Authority – 22 August 2000

5.    Mr Schwabe's Final Comment – 5 September 2000