BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Six Feet Under – male sex scene – sodomy – breach of good taste and decency

Findings
Standard 1, Guideline 1a – contextual matters – no uphold

This headnote does not form part of the decision.

Summary

[1] Six Feet Under is a series about a family of undertakers, and is described by the broadcaster as "black comedy". An episode broadcast on 14 May 2002 at 9.35pm on TV One included a scene of two males having sex in a car park.

[2] Rob Hodgkinson complained to Television New Zealand Ltd, the broadcaster, that the scene was offensive and unacceptable even for "adult only" viewing.

[3] Declining to uphold the complaint, TVNZ said in context the scene did not breach current norms of good taste and decency.

[4] Dissatisfied with TVNZ’s response, Mr Hodgkinson 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

[5] The members of the Authority have viewed the first two episodes of the series together with the programme complained about, and have read the correspondence listed in the Appendix. The Authority determines this complaint without a formal hearing.

The Broadcast

[6] Six Feet Under is a series about a family of undertakers, and is described by the broadcaster as "black comedy". An episode broadcast on 14 May 2002 at 9.35pm on TV One included a scene of two males having sex in a car park.

The Complaint

[7] Mr Hodgkinson complained to Television New Zealand Ltd, the broadcaster, that the scene was unacceptable on New Zealand television, and left him feeling "angry and horrified". Mr Hodgkinson said he suddenly came across the scene while waiting for the late news.

[8] The complainant said that while he accepted that the programme was shown during adult viewing time, he was "disgusted" with TVNZ for broadcasting it.

The Standards

[9] TVNZ assessed Mr Hodgkinson’s complaint against Standard 1 and Guideline 1a of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 1 Good Taste and Decency

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.

Guideline

1a  Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme's classification (see Appendix 1). The examples are not exhaustive.

The Broadcaster’s Response to the Complainant

[10] TVNZ declined to uphold the complaint. It explained that the scene complained about was part of an ongoing story-line of the series, which involved one of the main characters and his struggle with his sexuality.

[11] TVNZ argued that Six Feet Under was "highly acclaimed as a drama series of unusually high quality" and wrote:

It is TVNZ’s preference, particularly when high quality programming is involved, to show programmes as their creators (the directors and producers) intended them to be shown. That way the episodes retain integrity and are not marred by ugly cuts. In order to broadcast Six Feet Under TVNZ sought to find a way other than censorship to protect vulnerable members of the audience who might be upset or offended by language, sex and nudity which is found in the series from time to time. The answer was to screen the programme late at night (it does not start until more than an hour after the adults only watershed), to attach a warning which draws attention to specific content in the programme, and to classify the programme AO (Adults Only) with the AO symbol appearing at the beginning of the programme and after each commercial break.

[12] Dealing specifically with the scene complained about, TVNZ argued that the sex scene was shown from a distance, and was implied by body movement, with no sexual organs shown. It maintained that the scene was not gratuitous, and that regular viewers of the programme would not have found it "out of character with the production overall".

[13] In relation to Standard 1, TVNZ concluded that taking into account the contextual matters stated above, the programme did not breach current norms of good taste and decency.

The Referral to the Authority

[14] Mr Hodgkinson was dissatisfied with TVNZ’s decision, and argued that it had failed to maintain standards of good taste and decency. He wrote:

I have of course watched many "AO" programmes but I have never felt so offended by a television scene as in this instance. "Adults Only" must mean the current norms of decency for adults are to be met.

[15] Mr Hodgkinson said the scene was of a "standard expected in an X-rated movie where you get what you asked for". He argued that the AO classification and late screening did not justify the context of the scene.

The Broadcaster’s Response to the Authority

[16] TVNZ emphasised that the scene must be viewed in context, as it was an "important and dramatic moment in the plot". TVNZ noted that Mr Hodgkinson had "stumbled upon the scene", and said it was unable to broadcast programmes

in such a way that the contextual significance of a scene can be instantly recognised, even by somebody who has no knowledge of the programme or series.

The Complainant’s Final Comment

[17] Mr Hodgkinson said that TVNZ had failed to maintain standards of good taste and decency because the scene was "repulsively indecent". He argued that the graphic movements, language and the close-up view of the behaviour were "unnecessarily obscene".

[18] Mr Hodgkinson disputed TVNZ’s contention that in context the programme did not breach broadcasting standards and expressed concern that the scene was considered not to be "out of character with the overall production".

[19] Mr Hodgkinson said a warning did not "provide for an anything goes approach", and he considered the scene "the most repugnant" he had ever seen on television.

The Authority’s Determination

[20] When it determines a complaint that a broadcast contravenes Standard 1 of the Television Code, the Authority is required to determine whether the material complained about breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but does not determine whether the programme breached the standard. Accordingly, the Authority has considered the context in which the material complained about was broadcast.

[21] The Authority accepts that the relevant contextual matters on this occasion included the starting time of the broadcast (at 9.35pm), the nature of the programme (adult drama series), the pre-broadcast warning, and the programme’s AO classification. The Authority notes the relatively explicit nature of the scene, and it accepts that the scene was part of an ongoing story-line involving one of the main characters, David, and his struggle with his sexuality. The scene complained about occurred after David, while attending a Funeral Directors' Conference in Las Vegas, visited a strip club with fellow delegates where he drank heavily. He was shown as being unable to relate to the sexuality of the women performing. His response was to leave the club and call a male escort. It was apparent that he was not fully at ease with this and he declined the escort’s suggestion to return to his hotel. They had casual sex in a carpark, and David was arrested for it. Despite having finished his homosexual relationship with a black policeman, David telephoned him from jail and was released.

[22] While the Authority acknowledges the boundary-pushing nature of the scene, it notes that its assessment of the material complained about is determined in the context of the programme as a whole. The Authority does not assess such a scene in isolation, and the context of the broadcast is one of the relevant factors taken into account. It is also noted that research conducted by the Authority has identified a somewhat restrictive attitude among the public regarding sexual activity between members of the same sex.

[23] Mr Hodgkinson advised that he "stumbled upon the scene", and the Authority accepts in those circumstances the material may be considered particularly offensive to some viewers. However, the Authority considers there is merit in TVNZ’s argument that it is unable to broadcast programmes so that the "contextual significance of a scene" is understood by a viewer unfamiliar with the programme.

[24] It is the Authority’s view that this material was at the boundary of acceptability even within a "ground breaking" series such as this. However, in view of the contextual matters referred to above, the Authority concludes that Standard 1 is not breached on this occasion.

[25] The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with the provisions of the New Zealand Bill of Rights Act.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
22 August 2002

Appendix

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

1. Rob Hodgkinson’s Formal Complaint to Television New Zealand Ltd – 15 May 2002
2. TVNZ’s Response to the Formal Complaint – 4 June 2002
3. Mr Hodgkinson’s Referral to the Broadcasting Standards Authority – 16 June 2002
4. TVNZ’s Response to the Broadcasting Standards Authority – 20 June 2002
5. Mr Hodgkinson’s Final Comment – 6 July 2002