BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The broadcast by Television One of an episode in the police series Between the Lines

on 7 July was preceded by a warning that:

The following programme contains scenes which some viewers might find

offensive.

Dr Downs complained to Television New Zealand Ltd, the broadcaster, that as she

found no scenes offensive, she concluded that the warning was directed at two lesbian

kisses. Given that such heterosexual behaviour would not have justified a warning, she

said the warning was blatantly discriminatory and a breach of the broadcasting

standards.

Ms O'Donnell complained that the warning was unbalanced and discriminatory. It

was unbalanced as it dealt with lesbian activities negatively and should have been

balanced with a positive comment.

Arguing that a sizeable proportion of the population would have found the scenes

offensive and that its job was to reflect community standards, TVNZ said that the

warning had not indicated that the company itself believed the scenes offensive. It

declined to uphold the complaint. Dissatisfied with TVNZ's decision, both Dr

Downs and Ms O'Donnell referred their complaints to the Authority under s.8(1)(a)

of the Broadcasting Act 1989.

For the reasons given below, the Authority declined to uphold the complaints.

Decision

The members of the Authority have viewed the programme and the warning which

preceded it and have read the correspondence (summarised in the Appendices). As is

its practice, the Authority has determined the complaints without a formal hearing.

Separately, Dr Downs and Ms O'Donnell complained about the warning broadcast by

TVNZ before the screening of an episode of Between the Lines at 9.10pm on 7 July by

Television One.

Dr Downs stated that there were no scenes in the broadcast which in her opinion

justified a warning and that she had come to the conclusion that it referred to two

lesbian kisses. She wrote:

Given the plethora of explicit heterosexual activities including sexual

intercourse presented on television without warnings this is a blatantly

discriminatory stance.

She maintained that the warning, as well as being illegal discrimination on the grounds

of sexual orientation, breached standard G13 of the Television Code of Broadcasting

Practice.

Noting that she had ascertained from TVNZ the reason for the warning, Ms

O'Donnell said that the warning, by perpetuating a negative attitude to lesbianism,

was unbalanced.

TVNZ assessed the complaints under standards G6 and G13 of the Television Code

of Broadcasting Practice. They require broadcasters:

G6  To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature.

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

TVNZ began by recording the exact wording of the warning.

The following programme contains scenes which some viewers might find

offensive.

It observed that it was in a difficult position because, while it was illegal to

discriminate on the grounds of sexual orientation, it was aware that a large number of

viewers took offence at homosexual activity. With regard to this latter point, it added:

This has been tangibly confirmed recently by the volume of complaints to

TVNZ concerning the lesbian relationship in "Shortland Street" – even though no

lesbian activity has been shown.

TVNZ also argued that its role was to reflect community attitudes – not to change

them – and it maintained that by acknowledging that a significant proportion of

viewers would be offended by the item, it had not discriminated against homosexuals.

When she referred her complaint to the Authority, Ms O'Donnell asked what

amounted to a "significant proportion" of viewers and suggested that the Authority

should encourage broadcasters to issue balanced warnings.

In reply to these points, TVNZ said that it was a matter of judgment as to what

amounted to a "significant proportion" and pointed out that Ms O'Donnell had given

no indication as to what would be appropriate as a balanced warning.

The Authority first considered the wording of the warning broadcast by TVNZ on 7

July. On the basis that the purpose of any warning is to inform viewers that some

feature of the forthcoming programme might be offensive, the Authority believed that

the lack of specificity in the warning broadcast on this occasion had not allowed the

viewer to make an informed choice about whether or not to watch the programme. In

contrast to the lack of useful information contained in the warning broadcast on this

occasion, the Authority believed that there were several categories of behaviour to

which an informative warning should explicitly refer: for example; violence, offensive

language, provocative nudity and explicit sexual behaviour.

When considering whether the warning broadcast on this occasion breached either of

the nominated standards (G6 and G13), the Authority noted that standard G13 is

concerned with portraying named sections of the community negatively. As the

unspecific warning did not refer to any particular section of the community, the

Authority concluded that the standard was not breached. It also decided that standard

G6 had not been contravened. That standard applies to such programmes as news,

current affairs and documentaries and is not applicable, the Authority concluded, to

warnings about the content of programmes.

For the above reasons, the Authority declines to uphold the complaints.

The Authority records that it supports and encourages efforts by broadcasters to

inform viewers about the content of programmes in order to allow them to make

informed choices as to whether to watch or listen to particular programmes. In order

to ensure that the warning is of value to the audience, the Authority repeats its

opinion that the reason for the warning should be broadcast. To ensure that the

warning itself is not in breach of standard G13, the appropriate test is whether

standard G2 of the General Code (the requirement for good taste and decency) or the

Violence Code might reasonably be brought into contention.

To illustrate this point with regard to the current complaint, the Authority points out

that in view of the provisions in the Human Rights Act, a warning which advises

viewers that the programme contains scenes of sexual behaviour between homosexuals

will be in breach of standard G13 unless such sexual behaviour between heterosexuals

would also justify a warning for one of the reasons previously mentioned.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
17 November 1994

Appendix I

Dr Downs' Complaint to Television New Zealand Limited - 26 July 1994

Dr J P Downs of Dunedin complained to Television New Zealand Ltd about the

warning broadcast before the screening of Between the Lines on Television One on 7

July at 9.10pm.

The warning, Dr Downs stated, had recorded that the broadcast contained "scenes that

some viewers might find offensive". However, she continued, the programme did not

contain any scenes which justified the warning:

I was, reluctantly, left with the conclusion that this was an act of extreme

prejudice, homophobia and hypocrisy directed at two lesbian kisses.

Given the frequent display of explicit heterosexual activities, Dr Downs described the

warning as "blatantly discriminatory" and in breach of standard G13 of the Television

Code of Broadcasting Practice. She concluded:

Discrimination on the grounds of sexual orientation is illegal in New Zealand

yet the prejudice remains and is reinforced by irresponsible decisions such as

the one which led to this warning.

TVNZ's Response to the Formal Complaint - 3 August 1994

When reporting its Complaints Committee's decision, TVNZ said the warning was

worded:

The following programme contains scenes which some viewers might find

offensive.

TVNZ then said that it was both illegal and contrary to standard G13 to discriminate

on the grounds of sexual orientation. It described itself in a difficult position as:

At the same time, we are conscious that there remains a sizeable proportion of

the television audience which takes offence at homosexual activity. This has

been tangibly confirmed recently by the volume of complaints to TVNZ

concerning the lesbian relationship in "Shortland Street" - even though no

lesbian activity has been shown.

On the basis, first, that its role was to reflect community standards, and secondly, that

the warning did not discriminate against homosexuals, the complaint was not upheld.

TVNZ apologised that Dr Downs had been upset by the warning and remarked:

The scene was not cut from the film, and there is no suggestion in the warning

that TVNZ itself finds the scene offensive. What the warning does do is to

reflect the reality that a significant proportion of our audience may have taken

offence from the scene.

Dr Downs' Complaint to the Broadcasting Standards Authority - 26 August

1994

Dissatisfied with TVNZ's response, Dr Downs referred the complaint to the

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

She wrote that TVNZ's admission that the warning was issued because of the kiss

between two women was "clearly in breach of standard G13 of the Television Code".

TVNZ's Response to the Authority - 9 September 1994

When asked to comment on the referral, TVNZ argued:

The Authority, we submit must take account of the wording of our "warning".

In no way did it indicate that the Company considered the scenes offensive.

But we are aware that a sizeable proportion of our viewers would. By issuing

the warning we do not consider that we can in any way have been held to have

been in breach of Standard G13. It did not mean that we were portraying

anyone in a way as inherently inferior. We cannot see either how it would

result in encouraging discrimination against homosexuals. We also give

warnings when "explicit heterosexual activities" are a feature.

Dr Downs' Final Comment to the Authority - 15 September 1994

When asked to comment on TVNZ's response, Dr Downs' maintained that TVNZ's

warning was discriminatory as a similar kiss between a man and a woman would not

have been preceded by a warning.

The warning, she concluded:

... implied that lesbian relationships are more offensive than their heterosexual

counterparts and as such are inherently inferior

Appendix II

Ms O'Donnell's Complaint to Television New Zealand Limited - 14 July 1994

Referring to an earlier telephone call between Television New Zealand Ltd and herself,

Ms O'Donnell complained to TVNZ about the warning given before the broadcast of

Between the Lines on 7 July. The warning had been given, she said, as the lesbian

content - "two women were seen kissing sexually" - was considered to be offensive by

some at TVNZ.

Having been advised by telephone that the warning was included as a large part of the

community might find the lesbian content offensive, Ms O'Donnell said that this

attitude was reinforced by such warnings. She explained that she was offended when

lesbian matters were dealt with negatively and asked that future warnings be balanced

by reference to a legitimate lifestyle.

As the present warning was unbalanced, she complained that the principle of balance

had been contravened. She concluded by asking:

* You are seen by anti-lesbian viewers to be upholding the perceived

majority view when you acknowledge their disapproval by issuing your

warning

* At the same time, you blatantly convey to lesbians that they are thought

of as immoral and unacceptable.

* Where is the balance?

TVNZ's Response to the Formal Complaint - 3 August 1994

TVNZ reported that its Complaints Committee had assessed the complaint under

standards G6 and G13 and its reply was similar to that sent to Dr Downs.

Ms O'Donnell's Referral to the Broadcasting Standards Authority - 18 August

1994

Dissatisfied with TVNZ's response, Ms O'Donnell referred the complaint to the

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

Despite its claim that it was neutral, Ms O'Donnell maintained that TVNZ was not

behaving impartially. Rather, it was reflecting community prejudice.

Asking what proportion of the audience might have taken offence, she enquired when

would the proportion no longer be significant?

She suggested that the Authority should advise TVNZ to issue balanced warnings or

omit them altogether. Noting that two of the Authority's members had legal

backgrounds, she wrote:

I am particularly interested in how you view this issue concerning equity of

treatment of these two audience groups, bearing in mind that the warning is

generated for an offended group who may have the tendency to practice illegal

discrimination.

TVNZ's Response to the Authority - 9 September 1994

When asked to comment on the referral, TVNZ, in addition to the points made to Dr

Downs, commented that in deciding what was a "significant proportion" was a matter

of judgment. It again referred to the Shortland Street experience. As for broadcasting a

"balanced" warning, TVNZ said that Ms O'Donnell had not suggested one and argued

that the warning which was issued was of assistance to viewers.

Ms O'Donnell's Final Comment to the Authority - 20 September 1994

In a brief comment to the Authority in response, Ms O'Donnell said that the warning

should be omitted, observing:

Why offer assistance to those who may hold a negative bias towards lesbian

content?

She also argued that there was an imbalance between explicit heterosexual activity and

explicit lesbian activity which would, in TVNZ's terms, justify a warning.