BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

An item on 60 Minutes broadcast on Channel 2 at 7.30pm on 9 July 1994 contained

file footage of naked men, survivors of the holocaust.

Mr Lowe complained to Television New Zealand Ltd, the broadcaster, that the

broadcast of pictures of naked men was in breach of several broadcasting standards,

including the observance of good taste and decency and the requirement to be mindful

of the effect of any programme on children. He drew attention to an earlier decision

where the Authority supported TVNZ's action in electronically blocking out male

genitalia.

Declining to uphold any aspect of the complaint, TVNZ observed that to mask

electronically the barely visible penises would have trivialised the indignity and the

agony of the holocaust survivors. It noted that the item was preceded by a warning

advising that some content might be disturbing and maintained that to have attempted

to sanitise the footage in any way would have in itself been an act of indecency.

Dissatisfied with that 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 determine the complaint.

Decision

The members of the Authority have viewed the tape of the item complained about and

have read the correspondence (summarised in the Appendix). As is its practice, the

Authority has considered the complaint without a formal hearing.

An item on 60 Minutes broadcast on 9 July 1994 at 7.30pm dealt with a black comedy

routine by the daughter of a holocaust victim. Included with excerpts from her stage

shows were scenes from the film "Schindler's List" and, among them, newsreel footage

of holocaust survivors. One brief scene showed a group of emaciated men staring

naked and hollow-eyed at the camera. The penises of two of the men were visible for

about three seconds.

Mr Lowe complained to TVNZ that the portrayal of the naked men was in breach of

the Codes of Broadcasting Practice. In particular he referred to TVNZ's decision in a

Heartland programme broadcast on 15 March to mask electronically the genitalia of

naked men who were shown sliding on a patch of wet grass and which was the subject

of an earlier complaint by Mr Lowe to the Authority (Decision No: 51/94). He

suggested that it was inconsistent for TVNZ to obscure the genitals in one incident

and fail to do so in another. Mr Lowe also argued that the portrayal was harmful to

children and discriminatory against Jewish people. In his final letter to the Authority

he requested that he be permitted to be present when the Authority considered the

complaint.

While Mr Lowe assured the Authority of his sincerity in pursuing this complaint, the

Authority found it difficult to reconcile his arguments with those raised in the

Heartland complaint. It considered that he deliberately misconstrued the reasoning in

the Authority's earlier decision and, as a consequence, misrepresented the Authority's

findings.

In view of the lack of an issue of substance raised by the complaint, the Authority

decided this was an appropriate occasion to exercise its powers under s.11 (a) of the

Broadcasting Act 1989 which reads:

s. 11 The Authority may decline to determine a complaint referred to it

under section 8 of this Act if it considers –

(a) That the complaint is frivolous, vexatious, or trivial;

The Authority declined to determine the complaint on the grounds that it considered it

to be trivial.

In response to Mr Lowe's request to be present when the matter was discussed, the

Authority advised Mr Lowe that its established procedure is that its decisions are

made in committee, although it has the power to hold formal hearings if requested by

the parties. It noted that in its five years of existence, it had never found it necessary

to have a formal hearing and had always been able to determine complaints on the

basis of the written submissions.

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

complaint under s. 11(a) of the Broadcasting Act 1989.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
7 November 1994

Appendix

Mr J P Lowe's Complaint to Television New Zealand Ltd - 12 July 1994

Mr Lowe of Clive complained to Television New Zealand Ltd that its failure to censor

an item on 60 Minutes broadcast on 9 July at 7.30pm was a breach of several

broadcasting standards.

He noted that there was a 3-second shot of a group of naked men facing the camera,

which included close-ups of two penises at the bottom of the frame. He noted that

the context of the footage was the holocaust and that they were clearly malnourished

and under duress. He argued that children would have been disturbed to know that

these men had been forced to disrobe and pointed to Old Testament text which he

suggested supported that interpretation.

Mr Lowe argued that the item breached the requirement for good taste and decency

and that the penises should have been electronically masked as occurred in an item on

Heartland about which Mr Lowe complained on a previous occasion (Decision No:

51/94). He also argued that it was neither just nor fair to be forced to be naked and be

exposed to the world. Referring to Levitical law, he maintained that no one should be

forced into a state of nakedness and that it was inappropriate to expose children to the

perpetration of morally illegal acts by adults. He suggested it was unbalanced to mask

the penises of average Kiwis (as in No: 51/94) and not mask the even clearer depiction

of Jewish ones.

Mr Lowe also argued that TVNZ breached the requirement to be mindful of the effect

on children, suggesting that the inconsistency exhibited by showing masked penises in

one programme and unmasked penises in another would be confusing to children.

Finally, Mr Lowe argued that the shot portrayed people in a way which represented

them as inherently inferior. Referring to the results of the AGB-McNair survey

commissioned by the Authority in 1993, Mr Lowe concluded that the portrayal of

two penises was in breach of the agreed criteria approved on behalf of the moral

majority by the Authority.

TVNZ's Response to the Formal Complaint - 1 August 1994

TVNZ advised Mr Lowe of its Complaints Committee's decision, observing that it

had difficulty reconciling the contents of this complaint with that lodged about the

Heartland programme in which Mr Lowe objected to the electronic masking of a

penis. It noted that there could be no comparison between the situation in Heartland

where a group of men were skylarking and scenes from the holocaust. TVNZ

suggested that the scenes of the holocaust were searing and necessary reminders about

the depths of indignity to which those people were subjected. It wrote:

To spare the viewing audience any discomfort by electronically masking the

barely visible penises in such material is to trivialise the agony of the holocaust

survivors and offer them further indignity by drawing attention to their

nakedness, rather than their abject humiliation.

TVNZ noted that the shot to which Mr Lowe objected lasted just 3 seconds and was

in the context of an item concerning survivors of the holocaust. It added: "It is painful

footage to watch. It should never be sanitised."

Rejecting the allegations of breaches of broadcasting standards, TVNZ stated that to

have sanitised the pictures in any way would itself have been an indecency. With

reference to standard G4, it did not agree that it was unfair to remind the world of the

degradation the survivors were subjected to. It noted that it saw no relevance of

Levitical law to New Zealand law and that standard G5 was therefore not breached.

With reference to standard G6, it stated that there was no requirement at TVNZ to

mask close-ups of penises and that context had to be taken into account. Turning to

standard G8 it noted that the item was within a current affairs programme and that

such programmes were not subject to censorship or classification. It wrote that it

believed children should not have the holocaust concealed from them. Finally with

respect to standard G13, it wrote that nobody was represented as inherently inferior

and that the survivors were seen as innocent victims.

Mr Lowe's Referral to the Broadcasting Standards Authority - 11 August 1994

Dissatisfied with the broadcaster's response, Mr Lowe referred the complaint to the

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

Noting that TVNZ's decision to decline to uphold the complaint was based on its

conclusion that context was all-important, Mr Lowe complained that that meant that

the viewer was forced to go through the formal complaint process in order to ascertain

what was meant by context.

He suggested that the precedent decision now required the masking of all penises

which might give rise to complaint. He suggested that there was some inconsistency

in the policy. His interpretation was that it was acceptable to show holocaust victims

naked but not healthy bodies.

Mr Lowe then commented on TVNZ's arguments about the standards he alleged were

breached. He stated that masking out of genitalia was now the norm and imputed to

TVNZ the view that penis pictures were intrinsically dirty. He argued that there was

no need to put penises on display in order to convey a message of degradation and

maintained that by doing so standard G4 was breached. With respect to TVNZ's

argument that the principles of law referred to New Zealand law, Mr Lowe stated that

if that was also the Authority's interpretation he withdrew his objection under this

standard. He admitted this section of his complaint was badly expressed and

apologised to TVNZ.

Mr Lowe claimed that the Authority had ruled that showing penises in prime time

was controversial. He asked why, when the context was one of horror and not

frivolity, were penises displayed unmasked. Referring to TVNZ's point that news

and current affairs were not subject to classification he asked was Heartland not a

current affairs programme.

Referring to the requirement to be mindful of the effect on children, Mr Lowe

suggested that the Authority had ruled that children should be protected from

depiction of the naked male form in the context of occasions of spontaneous joy. He

concluded that TVNZ believed that when the context was one of horror and

degradation, children were then immune.

Finally he commented on the standard G13 argument by TVNZ that no one was

represented as inherently inferior, commenting that if penises were masked in one

group and not in another, one group must be inferior to the other.

TVNZ's Response to the Authority - 5 September 1994

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

TVNZ noted that it had fulfilled its obligations under the Broadcasting Act 1989 and

had determined the formal complaint. It observed that under section 11 of the Act the

Authority had a power to decline to determine a complaint that was frivolous,

vexatious or trivial. It submitted that this was a case where the Authority should do

so on the grounds that the complaint was clearly vexatious. It suggested that Mr

Lowe was trying to make a mockery of the process and for it to respond in detail to

each of the points raised and for the Authority to write a detailed decision would only

encourage the complainant to make similar complaints.

In particular, TVNZ submitted that it was appropriate for the Authority to exercise

its powers under section 11 when the complainant was critical of the process and of

the Authority's previous decision.

Mr Lowe's Final Comment - 17 September 1994

When asked to make a brief final comment, Mr Lowe advised that he had been forced

to take legal advice with respect to TVNZ's view that his complaint was vexatious.

He reported that he was advised that the claim of vexatious was not supportable.

Referring to the Heartland decision, Mr Lowe offered his interpretation of the

Authority's ruling that "penis masking is specifically encouraged in order to minimise

assumed complaint". Therefore, he argued, in order to be consistent he felt obliged to

complain about the subsequent breach by TVNZ. He maintained that he was

absolutely serious about the process and rejected TVNZ's claim that he was

attempting to make a mockery of it.

Mr Lowe argued that his intention was to establish the boundaries. As a sign of good

faith he agreed to withdraw two words from his submission to the Authority and

withdrew the complaint that standard G8 was breached.

He requested that he be informed of the hearing date and asked to be present when his

complaint was heard.