Lattin and Dijkstra and TV3 Network Services Ltd - 2003-165, 2003-166
Fight For Life – charity entertainment including boxing and singing for The Yellow Ribbon Trust – one boxer asked if he had a “big knob” – offensive
Standard 1 and Guideline 1a – contextual matters – majority – no uphold
This headnote does not form part of the decision.
 Australian Mark Geyer was one of the boxers who participated in Fight For Life, a charity entertainment programme involving boxing, comedy, and singing for The Yellow Ribbon Trust, broadcast on TV3 between 7.30–11.00pm on 14 August 2003. Before his fight, Mr Geyer was asked whether he had a “big knob”.
 Jean Lattin and Eardley Dijkstra each complained to TV3 Network Services Ltd, the broadcaster, that the question was offensive and improper.
 In response, TV3 explained that the question was part of a live broadcast and unscripted and, given the time of the broadcast (10.00pm) and the likely target audience, it did not consider that the comment was offensive in context. It declined to uphold the complaints.
 Dissatisfied with TV3’s response Mrs Lattin and Mr Dijkstra both referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, a majority of the Authority declines to uphold the complaints.
 The members of the Authority have viewed a video of the part programme complained about (Jodie Rimmer’s interview of Mark Geyer) and have read the correspondence which is listed in the Appendices. The Authority determines the complaints without a formal hearing.
 Fight For Life was a charity entertainment event screened live by TV3 from 7.30–11.00pm on Thursday 14 August 2003. The event involved boxing challenges between opponents from Australia and New Zealand as well as comedians and singers. The Yellow Ribbon Trust was the charity which benefited from the event.
 Mark Geyer, a former rugby league player, was one of the Australian boxers and he was interviewed by actress Jodie Rimmer. One of the questions she asked was:
On behalf of New Zealand women, we are all very excited to have you in the country and I am very excited to be standing next to you. A lot of women have been wanting to know, do you have a big knob?
 Mr Geyer replied “Big enough”.
 Eardley Dijkstra complained to TV3 that the “crass” question relating to the size of genitals was “completely improper”, and it had embarrassed Mr Geyer and viewers. He contended that the interviewer made a serious error of judgment and the question breached the standard of good taste and decency.
 Mrs Lattin complained that the question was inappropriate and offensive. She referred to an article in the “Sunday News” which reported that the question had been asked as a result of a bet. Accordingly, she pointed out that the interviewer had chosen the words deliberately and knew that they were likely to offend. The article noted that the interviewer paid half of the bet ($500) to charity which, Mrs Lattin observed, was no vindication for the offence caused to her family and to women in New Zealand.
 TV3 assessed the complaint under Standard 1 of the Free-to-Air Television Code of Broadcasting Practice. The Standard and relevant Guideline read:
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.
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 Complainants
 Contending that the standard required that the broadcast material “must be unacceptable to a majority of viewers in the context in which it is shown”, TV3 said that the comment was made at about 10.00pm in a live entertainment event which focused on boxing and which was rated PGR. The likely or target audience, it added, would have been young adult or adult.
 TV3 also stated that the tone of the interview was “bantering and a little suggestive” and Mr Geyer’s response to the question was “to look wryly amused” and to say “big enough”. TV3 noted that the question was part of a live broadcast and was unscripted, and that Mr Geyer was reinterviewed by Ms Rimmer after his fight. It added that she had been instructed not to ask any further similar questions.
 Given the situation in which the question arose, TV3 considered that the majority of viewers would not have been offended and it declined to uphold the complaints.
 TV3 also argued that, if the complaint was upheld, the public’s right under the New Zealand Bill of Rights Act 1990 to the freedom of expression would be unreasonably and unjustifiably restricted.
The Referrals to the Broadcasting Standards Authority
 In his referral, Mr Dijkstra rejected TV3’s conclusion that the majority of viewers would not have been offended in regard to a question about the size of Mr Geyer’s genitals. He wrote that such a finding was “complete speculation”.
 In response to TV3’s reference to the freedom of expression, Mr Dijkstra asked:
Why should or would the public need Ms Rimmer to find out the size of Mr Geyer’s penis, for goodness sake?
 In her referral, Mrs Lattin argued that question was more suited to a “sleaze show” than to a boxing challenge. That conclusion was clear from the instructions to Ms Rimmer not to repeat the question. The programme might have been unscripted, she noted, but the question was certainly planned. The interviewer, she said, had posed it “slowly and deliberately”.
The Broadcaster’s Responses to the Authority
 In response to Mr Dijkstra’s referral, TV3 said that it had applied an objective and consistent approach in its assessment of the complaint under Standard 1. It denied that its attitude was defensive. Focusing on the context of the question, TV3 said it was “an oblique reference, made at a late hour” and it remained of the view that the comment would not have offended a significant number of viewers.
 To Mrs Lattin’s “sleaze show” remark, TV3 again said that it had applied the standard objectively, taking into account contextual issues.
The Complainants’ Final Comments
 Mr Dijkstra had nothing further to add, noting that it was important for the Authority to view a tape of the item.
 Mrs Lattin questioned TV3’s statement that a significant number of viewers would not have been offended in view of the “Sunday News” article which reported that there had been more than 50 complaints following the broadcast. Mrs Lattin maintained her opinion that the comment was unacceptable.
The Authority’s Determination
 When it determines a complaint that a broadcast contravenes Standard 1 of the Television Code, the Authority is required to determine whether the language used in the question complained about breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast.
 The Authority is of the view that it could be unacceptable on some occasions, and it is divided in its view whether its use in the programme complained about contravened Standard 1.
 The Authority is unanimous that the following contextual matters are relevant to its decision:
- It was apparent from the newspaper report provided by Mrs Lattin (“Sunday News”, 17 August 2003) that the question was premeditated.
- The other presenters considered the question to be of questionable taste.
- TV3’s production crew was concerned about the question and, as TV3 advised, the floor manager instructed the presenter “to refrain from further questions of that sort”.
- The programme was rated PGR and the question was asked at about 10.00pm, some 2Þ hours after the start of the 3Þ hour programme.
- According to the newspaper article noted above, the presenter was aware that the question would shock many viewers.
- The language used was a reference to the interviewee’s genitals.
- The question was not asked until the presenter had established at least some degree of rapport with the interviewee.
- The presenter was known to many viewers as an actor in a risqué role in The Strip.
- The target audience.
 The Authority is divided in its decision as to whether these contextual matters result in a finding that Standard 1 is contravened.
 The majority acknowledges that the question was both tacky and puerile but, focusing principally on the time of the broadcast, concludes that the comment was in the category of bad manners rather than a breach of the standard. Accordingly, the majority declines to uphold the complaints.
 A minority of the Authority (Rodney Bryant) considers that the comment breached the requirement for good taste and decency. The minority notes that the question was asked as a result of a bet or a dare and was therefore clearly premeditated and designed to shock and offend. Further, TV3 production staff, recognising that the comment was in doubtful taste, took immediate steps to ensure that there were no similar remarks later in the broadcast. Both these factors, in the minority’s opinion, suggest that there was an intention to offend and the broadcaster, by issuing a warning to the interviewer, was aware of it.
 The Authority notes TV3’s comment that a breach of Standard 1 occurs when it is unacceptable to a majority of viewers in the context in which it is shown. The Authority observes, unanimously, that while both target audience and actual audience are relevant to its decision when determining good taste and decency complaints, they are matters of context and are not necessarily determinative in themselves.
For the above reasons, a majority of the Authority declines to uphold the complaints.
Signed for and on behalf of the Authority
19 December 2003
The following correspondence was received and considered by the Authority when it determined Mrs Lattin’s complaint:
1. Jean Lattin’s Informal Complaint to the Broadcasting Standards Authority –
18 August 2003.
2. Mrs Lattin’s Formal Complaint to TV3 Network Services Ltd – 29 August 2003
3. TV3’s Informal Response to Mrs Lattin – 17 September 2003
4. Mrs Lattin’s Referral to the Broadcasting Standards Authority – 20 September 2003
5. TV3’s Formal Response to Mrs Lattin – 24 September 2003
6. Mrs Lattin’s Referral to the Broadcasting Standards Authority – 5 October 2003
7. TV3’s Response to the Authority – 5 November 2003
8. Mrs Lattin’s Final Comment – 13 November 2003
The following correspondence was received and considered by the Authority when it determined Mr Dijkstra’s complaint:
1. Eardley Dijkstra’s Complaint to TV3 Network Services Ltd – 15 August and
9 September 2003
2. TV3’s Response to the Formal Complaint – 16 September 2003
3. Mr Dijkstra’s Referral to the Broadcasting Standards Authority – 18 September 2003
4. TV3’s Response to the Authority – 5 November 2003
5. Mr Dijkstra’s Final Comment – 17 November 2003