BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

Summary

A view of male genitalia was electronically obscured during a sequence in the programme

Heartland: Glenorchy in which a group of naked men was shown sliding along a patch of

wet grass. The programme was broadcast on Channel One at 8.30pm on 15 March

1994.

Mr Lowe complained to Television New Zealand Ltd that the use of the electronic

technique breached a number of broadcasting standards as it encouraged unhealthy

attitudes by implying parts of the body should be hidden.

Maintaining that it was contrary to the expectations of the majority of viewers to portray

a close up shot of a penis in a programme aimed at a family audience, TVNZ declined to

uphold the complaint. Dissatisfied with TVNZ's decision, Mr Lowe 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 declined to uphold the complaint.

Decision

The members of the Authority have viewed the part of the programme to which the

complaint relates and have read the correspondence (summarised in the Appendix). As is

its practice, the members have determined the complaint without a formal hearing.

The episode of Heartland: Glenorchy broadcast on 15 March, showed that some

community activities being filmed had to be postponed because of heavy rain. It then

screened some naked men who, while skylarking, slid through the wet grass on their

stomachs. One man, while getting to his feet, gestured at the camera close by. Through

the use of an electronic mask his genitalia were not visible although it was possible to draw

the conclusion that the picture was blurred because of some rain on the camera lens.

Mr Lowe complained to TVNZ that the use of the technique to mask the genitalia breached

the following standards in the Television Code of Broadcasting Practice. The first six

require broadcasters:

G1  To be truthful and accurate on points of fact.

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.

G3  To acknowledge the right of individuals to express their own opinions.

G7  To avoid the use of any deceptive programme practice which takes

advantage of the confidence viewers have in the integrity of broadcasting.

G12 To be mindful of the effect any programme may have on children during

their normally accepted viewing times.

G13 To avoid portraying people in a way which represents as inherently inferior

or is likely to encourage discrimination against, any section of the

community on account of sex, race, age, disability, occupational status,

sexual orientation or the holding of any religious, cultural or political belief.

This requirement is not intended to prevent the broadcast of material

which is:

i) factual, or

ii) the expression of genuinely-held opinion in a news or current

affairs programme, or

iii) in the legitimate context of a humorous, satirical or dramatic

work.

The other standard cited reads:

G19 Care must be taken in the editing of programme material to ensure that the

extracts used are a true reflection and not a distortion of the original event

or the overall views expressed.

There is some confusion in the correspondence, possibly because of a typing error, whether

a breach of standard G5 is also alleged. In its assessment of the complaint, the Authority

has assumed that Mr Lowe has also alleged a breach of this provision. It requires

broadcasters:

G5  To respect the principles of law which sustain our society.

The essence of Mr Lowe's complaint was what he described as the objectionable and

dishonest portrayal of innocent human nudity which, in his view, could lead to an

unhealthy and unnatural attitude towards the human body. Viewing nudity through

glasses tinted with sexuality, he wrote, could impede natural sexual development and could

result in aberrant violent behaviour by males. The specific aspects of the complaint under

each nominated standard are contained in the appendix.

TVNZ responded to each aspect of the complaint (also dealt with in the appendix) but

focussed on the allegation that the broadcast breached the good taste and decency

requirement in context contained in standard G2. It reported that the use of the masking

technique had been the compromise reached between the producers of the programme

and itself when it had sought, initially, the deletion of a three second segment section of

the programme.

The decision to use the electronic masking technique, TVNZ said, was made on the basis

that male nudity, and especially a close-up view of a penis, was not acceptable to the

majority of viewers in a documentary screened in family viewing time.

TVNZ advised the Authority that it accepted that a number of people sympathised with Mr

Lowe's view that a brief undistorted record of the human form in its natural state did not

offend but, it maintained, such a view was not the accepted norm in a programme

broadcast for a family audience. In his final comment, Mr Lowe persisted with his

complaint that the concealment of innocent behaviour contained a corrupting message,

asking:

What is best for our community: the fear based, bland and ultimately debilitating,

American way; or the way of openness and honesty already accepted here, by

previous television management, community standards authorities, the courts, and

the quiet majority?

In assessing the complaint, the Authority focused on the standard G2 requirement for

good taste and decency in context. It agreed with TVNZ that it would contravene the

accepted norms of decent behaviour to show, without good reason, a close-up of male

genitalia on a programme which TVNZ explained was targeted at a family audience.

Indeed, the Authority would like to commend TVNZ for the compromise involved in the

broadcast. As noted, the portrayal of male genitalia would likely have given rise to

complaints while the deletion of the segment would have removed part of the programme

which depicted some exuberant behaviour. The Authority believed the compromise

retained the light-hearted aspects of the item in such a way which did not focus on the

technique used to remove the broadcast of the genitalia.

The Authority would also record that it believed Mr Lowe made some valid points. In

response to his specific question about the scale applied when deciding on the level of

offence which it believes unacceptable - and in contravention of standard G2, the

Authority records that it is often not possible to apply a specific formula. As rulings on

community standards inevitably involve a degree of subjectivity, the Authority approaches

complaints on a case-by-case basis to ensure that the concern in the standard providing

for context is given full consideration.

In regard to this complaint, the Authority believed TVNZ took the sensible course in

screening the item in the format shown. By doing so, the Authority concluded, TVNZ

neither breached standard G2 nor any of the other standards nominated explicitly or

implicitly by Mr Lowe.

For the reasons set forth above, the Authority declines to uphold the

complaint.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
30 June 1994

Appendix

J P Lowe's Complaint to Television New Zealand Limited

In a lengthy letter dated 16 April 1994, Mr J P Lowe of Clive complained to Television New

Zealand Ltd about part of the programme Heartland: Glenorchy broadcast at 8.30 on 15

March on Television One.

A sequence containing a "spontaneous bit of horseplay", he wrote, showed three naked

men sliding through the wet grass on their stomachs. However, through the use of a

technique he called a "fuzz-box", a "smidgen of pubic hair" was blocked out. After

enquiries with the programme makers, he discovered that the "fuzz-box" technique was

the compromise between total deletion and no cuts - the respective positions of TVNZ and

the producers of the programme.

Mr Lowe argued that the broadcast breached the standards G1, G2, G3, G7, G12, G13

and G19 in the Television Code of Broadcasting Practice.

It breached the requirement for truth and accuracy in standard G1 as a factual image was

deliberately distorted.

Standard G2 requires good taste and decency in context and he cited an Indecent

Publications Tribunal decision from 1968 that pleasant and unretouched nude pictures

could not be regarded as objectionable.

The New Zealand Bill of Rights Act provides that it is an offence to discriminate on the

grounds of an ethical belief and as the broadcast involved suppression merely on the

grounds of unorthodoxy, he said, it breached standard G3 which requires broadcasters to

acknowledge the rights of individuals to express opinions.

The prohibition on the use of any deceptive programme practice - standard G7 - was

contravened as the intent to cut the scene was "clearly deceptive".

While acknowledging that the broadcast took place in "AO" time, Mr Lowe considered that

it breached the requirement in standard G12 requiring broadcasters to keep children in

minds as the technique used drew attention to the pubic area and could lead to children

think that their own bodies were unacceptable.

Standard G13 requires broadcasters not to show any group as inherently inferior and to

avoid encouraging discrimination or denigration. Children, Mr Lowe argued, were

discriminated against through the concealment of the human form.

Finally, Mr Lowe believed that the requirement in standard G19 to avoid distortion

through editing was breached.

In a further letter to TVNZ dated 25 April 1994, Mr Lowe commented that he was not

arguing for full frontal nudity in all situations. Rather, it should only be subject to

proscription when not displayed in an innocent manner.

TVNZ's Response to the Formal Complaint

TVNZ advised Mr Lowe of its Complaints Committee's decision in a letter dated 4 May

1994 when it reported that the complaint had been assessed under the nominated

standards.

Noting that the scene showed the naked men skylarking spontaneously, TVNZ stated that

an electronic mask had been used for three seconds to conceal the close up view of one

man's pubic hair and genitals. It continued:

As background, the [Complaints] Committee heard that the appraiser (censor) had

originally ruled that the 3-seconds should be removed from the shot, but agreed to

a compromise with the producer which saw the electronic masking being applied.

In the view of the committee it was done professionally and, while clearly a

masking device, looked for all the world like a big drop of rain on the camera lens.

In dealing with the standards, TVNZ considered first the requirement in standard G2 and

expressed the opinion that "currently accepted norms of decency and taste" was the critical

phrase. Male nudity and especially the close up view of a penis, it considered, was not

acceptable in a documentary to the majority of viewers. Accordingly, it decided that the

appraiser had been correct in requiring the portrayal of the penis be either removed or

obscured.

As nothing was untruthful or inaccurate about the sequence, standard G1 was not

contravened. Everyone had expressed an apposite opinion as required by standard G3 and

there was no deceptive programme practice in contravention of standard G7. The mask

had been applied because of its concern for children as required by standard G12 and no

breaches of standards G13 or G19 had occurred.

TVNZ concluded:

The [Complaints] Committee was sorry that you felt as you did about this

programme, but believed that your views (respected though they are) are probably

out of step with prevailing community attitudes which TVNZ strives to reflect. It

was unable to find that any of the codes quoted by you had been breached.

TVNZ also apologised that Mr Lowe had been misinformed about the reasons for the use of

the electronic mask, adding that there was no ban on full-frontal nudity but context was

all-important, and Heartland was clearly aimed at a family audience.

Mr Lowe's Complaint to the Broadcasting Standards Authority

Dissatisfied with TVNZ's response, in a further lengthy letter (nine pages of single spaced

A4 plus four pages of appendices) dated 13 May 1994 Mr Lowe referred his complaint to

the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Mr Lowe began by explaining his philosophy about sexual development - especially about

the impediments to its natural development which could result in such behaviour as male

violence. He expressed the view that if nudity was filtered through sex-tinted glasses, a

subtle corruption occurred to the natural development process.

With regard to Heartland: Glenorchy, he wrote:

This complaint occurred because it is the first time I've seen masking applied as

reactionary censorship to simple nudity in this country. American rules requiring

"fuzz boxes" automatically put the human body back behind the bike shed from

where it has begun to emerge in New Zealand.

He referred to a number of programmes over the last 20 years or so which had involved

the brief exposure of genitalia about which there had been no complaints as far as he was

aware. He also referred to public opinion surveys which, he argued, indicated that male

nudity seen from behind was not a major concern and he referred to what he regarded as

the healthy acknowledgement of nudity on specific occasions.

Questioning to whom TVNZ's Complaints Committee was accountable, he expressed

concern that the appraiser's objection on this occasion could become a self-fulfilling

prophecy:

... if the exposure is rare, it becomes rarer to the point eventually of being assumed

to be unacceptable.

He proceeded to discuss the specific standards and, for the reasons given in the original

complaint, maintained that the broadcast breached the standards nominated. He focussed

on standard G2 - good taste and decency in context - and felt that whereas he might have

understated the portrayal by the use of the phrase "a smidgen of pubic hair", TVNZ had

overstated the scene by referring to a "close-up of a male penis". He referred to the

Authority's survey of community standards and maintained that, apart from a minority

of fundamentalist Christians, the community in general was fairly relaxed about sex and

nudity on television. He opined:

The implication is either there is one (or more) of these in the TVNZ censors' office

or the appraisers have been 'sucked in' by their noise.

Discussing further the Authority's survey, he concluded:

In other words: I maintain the objective evidence including that commissioned by

the Authority [see Appendix i]: shows that a clear majority would accept that shot

in that context and that frame for those 3 seconds as "unexceptionable" [sic].

He contested TVNZ's findings that the broadcast did not contravene standards G3, G5, G7,

G12, G13 and G19.

In conclusion, in contrast to TVNZ's view about what could be shown in programmes

designed for family audiences, he stated:

My contention is first that a brief wholesome undistorted record of the human

form in its natural state is clearly acceptable to a majority given the low level of

concern about these issues shown in the AGB McNair survey, High Court decisions

and my own investigations.

Second, the applied distortion is corrupting by the implication of its message to

children: which may have dangerous consequences for them as adults. On those

grounds alone it is far safer to avoid the potential for harm.

He concluded with the following statement:

Essentially, I suggest the public have three valid expectations of the media: that

they are honest, fairly respect all views, and resist corruptive influences. Distorting

reality to indicate that some part of some people in some communities must be

proscribed: is dishonest, discriminatory and corrupting.

I see no humanitarian alternative to upholding this complaint.

In a further letter to the Authority dated 31 May, Mr Lowe offered to supply the

Authority with the Indecent Publications Tribunal material to which he referred. He also

asked what level of offence was considered unacceptable by the Authority in free to air

broadcasting and commented:

The real issue is the question of polarised opinion: should the loudest squeak be

allowed to consume all the oil?

TVNZ's Response to the Authority

As is its practice, the Authority sought the broadcaster's response to the referral. Its letter

is dated 27 May 1994 and TVNZ's reply, 2 June.

It reported that it had little to add to its 4 May letter to Mr Lowe, observing that there

were a number of people - both within TVNZ and in the community at large - who would

sympathise with his views. However, it also believed that there were a considerable group

in the community who would find the explicit view of a penis (whatever the context)

unacceptable in a programme aimed at a family audience.

TVNZ, it reported, had chosen to use an electronic mask to ensure that a moment of joyful

exuberance was retained in the programme.

Mr Lowe's Final Comment to the Authority

When asked for a brief comment on TVNZ's response, in a letter dated 13 June 1994 Mr

Lowe withdrew his comments about zealots at large in TVNZ in view of its conciliatory

approach.

Noting that TVNZ acknowledged that there were two sides to the issue but had accepted

that the portrayal of a penis in a programme aimed at a family audience was not

acceptable to the majority in the community, Mr Lowe maintained that TVNZ was

incorrect in its conclusion. He also commented that TVNZ, in wanting to broadcast a

moment of "joyful exuberance", had resiled from its ruling that the segment should be

deleted. Arguing that although TVNZ's appraiser might not be zealots, they acted as if in

fear of them and he concluded:

Does the Authority wish to have fear encouraged in the community? The fear of

"God's image" by concealing a bit of the image, simple knowledge is denied; worse:

the innocent are given an essentially corrupting message. That is obviously not

decent.

What is best for our community: the fear based, bland and ultimately debilitating,

American way; or the way of openness and honesty already here, by previous

television management, community standards authorities, the courts, and the quiet

majority.