BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Ugly Betty promo – classified G – contained sexual themes – allegedly in breach of good taste and decency, programme classification and children’s interests standards

Findings
Standard 7 (programme classification) – content of promo required a higher classification of PGR – promo should not have screened during a G-rated programme – upheld

Standard 9 (children’s interests) – content of promo was more suitable for a mature audience – should not have been broadcast during a G programme children were likely to be watching – upheld

Standard 1 (good taste and decency) – subsumed into consideration of Standards 7 and 9

No Order

This headnote does not form part of the decision.

---

Broadcast

[1]   A promo for the comedy programme Ugly Betty was broadcast on TV2 at 7.25pm on Sunday 4 May 2008 during 2Tube, a locally produced weekly review of the internet, combining bloopers, funny web clips, international advertisements, and comedic local home videos.

[2]   A voice-over in the promo said that Betty was going to meet “the king of dating advice”. This character, a male author, was shown at the start of the promo saying to Betty, “Men want to get laid, Betty, I want to help them.” Another male character, Gio, then commented that the author “writes books about how to pick up chicks”. The author held up his book, and recited the title: “Tap That – how to score with hot [mute]”. The word “bitches” was muted. The author went on to say that “the easiest way to bag a woman is to insult her”, which was closely followed by a shot of another male character, Henry, saying “genius” while reading the book. Betty shot him a disapproving look, and he responded “penis?” in an attempt to cover his first comment.

[3]   Gio and Henry were then shown in a bar admiring an attractive woman. Henry commented “hey, I can tap that better than you”, and then Gio and Henry agreed to compete to see who could get the most phone numbers from women in the bar.

Complaint

[4]   Aidan Harrison made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the promo breached standards of good taste and decency, accuracy, programme classification, and children’s interests.

[5]   With reference to guidelines 1a and 1b, Mr Harrison considered that dialogue in the promo was “of a derogatory sexual nature toward women”, and went beyond the norms of good taste and decency. He said that he and his wife were “dismayed and disgusted” by the content of the promo.

[6]   The complainant argued that guideline 5b to the accuracy standard had been breached because the promo was “alarming and misleading” as it “focused on virtually every sexual comment made in the entire episode”.

[7]   Referring to guidelines 7a and 7c, Mr Harrison maintained that the content of the promo was AO, not G or PGR. He said that both he and his wife were offended by the material in the promo, and that it was likely a “significant proportion of viewers” would also consider it unacceptable.

[8]   Citing guideline 9a, the complainant commented that he had two daughters who had viewed the promo with him, and that he was alarmed at the “derogatory sexual nature” of the promo. He said he would like to watch television without fear of his children “being exposed to content of a sexual nature without my preparation”, and would rather discuss “such issues” on his own terms, “not forced by your advertisements”.

[9]   Mr Harrison concluded his complaint by saying he did not think that “smutty” material of a sexual nature should be screened before 8.30pm.

Standards

[10]   Mr Harrison nominated Standards 1, 5, 7, and 9 and guidelines 1a, 1b, 5b, 7a, 7c, and 9a of the Free-to-Air Television Code of Broadcasting Practice in his complaint. These 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.

Guidelines

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.

1b    Broadcasters should consider – and if appropriate require – the use of on-air visual and verbal warnings when programmes contain violent material, material of a sexual nature, coarse language or other content likely to disturb children or offend a significant number of adult viewers. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guideline 5b         

Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

Standard 7 Programme Classification

Broadcasters are responsible for ensuring that programmes are appropriately classified; adequately display programme classification information; and adhere to time-bands in accordance with Appendix 1.

Guidelines

7a    Broadcasters should ensure that appropriate classification codes are established and observed (Appendix 1). Classification symbols should be displayed at the beginning of each programme and after each advertising break.

7c    Where a promo screens in an unclassified host programme outside AO time (including news and current affairs), the promo must be classified G or PGR and broadcasters must pay particular regard to Standard 9 (Children’s Interests).

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

Guideline 9a           

Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material which would disturb or alarm them.

Broadcaster's Response to the Complainant

[11]   TVNZ contended that to constitute a breach of Standard 1, the broadcast material must have been unacceptable to a significant number of viewers in the context in which it was shown, including the time of broadcast, the programme’s target audience, its classification, and the use of warnings. It maintained that there was no explicit footage or language in the promo that was deserving of a classification stronger than G.

[12]   TVNZ disagreed with the complainant that the content in the promo was derogatory. It argued that all of the comments were intended to be humorous and that they were not salacious or aggressive. It emphasised that there was no coarse language in the promo, noting that the word “bitches” was muted adequately. Further, the sexual content in the promo was verbal; it did not include any nudity or explicit sexual content. Accordingly, the broadcaster concluded that the promo would not have offended a significant number of viewers, and it declined to uphold the Standard 1 complaint.

[13]   The broadcaster declined to determine the accuracy complaint on the basis that Standard 5 is designed for news, current affairs and other factual programmes.

[14]   Turning to Standard 7 (programme classification), the broadcaster considered that the promo was appropriately screened in 2Tube. 2Tube was rated G, and the promo for Ugly Betty correctly received a G classification. It reiterated its argument that there was no explicit footage or language that required a higher rating, and that the word “bitches” was muted and was not audible in order to comply with the G rating of the host programme. The broadcaster declined to uphold the Standard 7 complaint.

[15]   The broadcaster maintained that the interests of child viewers were adequately considered in screening the promo for Ugly Betty. The promo was correctly rated G, and the word “bitches” was muted indicating that care was taken to consider a younger audience. TVNZ considered that there was nothing in the promo that would have alarmed or disturbed younger audiences, and the sexual references were inexplicit and humorous. Accordingly, TVNZ concluded that the promo did not breach Standard 9.

Referral to the Authority

[16]   Dissatisfied with TVNZ’s response, Mr Harrison referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[17]   The complainant reiterated many of the arguments contained in his original complaint. He said that he disagreed with TVNZ that the word “bitches” was muted; he believed it was “definitely distinguishable”. The complainant also took issue with TVNZ’s argument that the language was “light-hearted and intended to be humorous” rather than aggressive. He argued that humour and aggression were subjective, and that TVNZ’s views differed from his own.

[18]   Mr Harrison disagreed with TVNZ that there was “nothing injurious to children” in the promo. He said that children were exposed to the inappropriate language in the promo and were likely to mimic what they had heard.

Broadcaster’s Response to the Authority

[19]   TVNZ stated that it had no further comments following the referral of Mr Harrison’s complaint to the Authority.

Complainant’s Final Comment

[20]   The complainant took issue with TVNZ’s oversight of the line in the promo “the easiest way to bag a woman”. He said that he believed the language in the promo was explicit and required a higher rating, and that he could not understand how the argument that it was G material that was not explicit could be justified.

[21]   Mr Harrison noted the quotes from the promo – “all men want to get laid”, “the easiest way to bag a woman is to insult her”, “how to score with hot [bitches]” – and said that he would not use that language around children. He considered it was inconsistent to deem “bitches” unacceptable, but not mentions of “getting laid” and “bagging a woman”.

[22]   With regard to TVNZ’s argument that a significant number of viewers would not have been offended by the promo, Mr Harrison said that he had spoken to over 100 people and they all agreed with him that the language used in the promo was inappropriate. He maintained that the promo breached Standard 1.

[23]   The complainant reiterated his argument that humour and aggression were subjective, and that TVNZ’s views differed from his own.Further, children were unable to distinguish between humour and serious dialogue, he said, so that this material should not be broadcast while children were watching. He noted that 2Tube was rated G so that children were likely to be watching it, and argued that Standards 7 and 9 were breached because children were exposed to the “humour” in the promo and would copy it thinking it was appropriate.

Authority's Determination

[24]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.

Standard 7 (programme classification)

[25]   Standard 7 states that broadcasters are responsible for ensuring that programmes are appropriately classified. Under guideline 7b, promos must be classified to comply with the programme in which they screen. The promo subject to complaint was for a PGR-rated programme, Ugly Betty. The promo was rated G by TVNZ and was screened within a G-rated host programme at 7.25pm.

[26]   Appendix 1 of the Free-to-Air code gives the following definitions for G and PGR programmes:

G – General

Programmes which exclude material likely to be unsuitable for children. Programmes may not necessarily be designed for child viewers but must not contain material likely to alarm or distress them.

PGR – Parental Guidance Recommended

Programmes containing material more suited for mature audiences but not necessarily unsuitable for child viewers when subject to the guidance of a parent or adult.

[27]   In the Authority’s view, the promo for Ugly Betty should have been classified PGR rather than G. The sexual references in the promo such as “tap that”, “men want to get laid”, “the easiest way to bag a woman” and “how to score with hot [bitches]” (the muting of which the Authority considers was ineffective), were unsuitable for unattended child viewers. These repeated comments of a sexual nature were clearly more suitable for a mature audience, and should not have been broadcast during a G-rated programme that children should have been able to view unattended.

[28]   Having found that the promo was classified incorrectly, the Authority must consider whether to uphold this part of the complaint as a breach of Standard 7 (programme classification).

[29]   The Authority acknowledges that upholding the Standard 7 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. It acknowledges the importance of section 14 and the values underlying the right to freedom of expression.¹ However, “the right of freedom of expression is not an unlimited and unqualified right”.² The Authority must ensure that, if it is considering upholding this part of the complaint, the restriction on the broadcaster’s right to freedom of expression would be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[30]   First, the Authority must assess whether, by upholding this part of the complaint, the limit placed on the broadcaster’s section 14 right would be “prescribed by law”. Parliament has recognised the importance of codes of broadcasting practice in section 4(1)(e) of the Broadcasting Act 1989, which states:

(1) Every broadcaster is responsible for maintaining in its programmes and their
     presentation, standards that are consistent with–

      (a) Any approved code of broadcasting practice applying to the programmes.

[31]   The Free-to-Air Code of Broadcasting Practice, which includes Standard 7, was developed in conjunction with broadcasters and approved by the Authority. For these reasons, the Authority considers that upholding a complaint under Standard 7 (programme classification) would be prescribed by law.

[32]   Second, the Authority must consider whether upholding this part of the complaint would be a justified limitation on the right to freedom of expression. In the Authority’s view, the programme classification standard exists to create consistency and certainty for viewers, who rely on the classification of a programme to give them a fair indication of its content. Standard 7 also plays an important role in the protection of children, because it assists parents and guardians in making informed choices about children’s viewing. Accordingly, the Authority considers that upholding a complaint under the programme classification standard would place a justified limitation on a broadcaster’s right to freedom of expression.

[33]   Third, the Authority must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 7 on this occasion. Viewers of G-rated programmes are entitled to expect that promos broadcast within those programmes will not exceed the classification of the host programme. In this case, the Authority has found that the material in the Ugly Betty promo was more suitable for a mature audience, and contained sexual themes that required a PGR rating.  

[34]   Upholding a breach of the programme classification standard on this occasion would ensure that broadcasters take care to correctly classify promos and screen them in appropriate host programmes. In this respect, upholding this complaint clearly promotes the objective of Standard 7 (as outlined in paragraph [32] above).

[35]   In these circumstances, the Authority finds that upholding this part of the complaint places a justified and reasonable limit on TVNZ’s freedom of expression. It therefore upholds the complaint that the promo breached Standard 7.

Standard 9 (children’s interests)

[36]   Standard 9 requires broadcasters, in the preparation and presentation of programmes, to consider the interests of child viewers. Having determined that the promo was incorrectly classified and screened in a G-rated host programme that children were likely to be watching, the Authority finds that the broadcaster did not sufficiently consider the interests of child viewers. Having arrived at this conclusion, the Authority must consider whether to uphold this part of the complaint as a breach of Standard 9 (children’s interests).

[37]   As discussed above in relation to the programme classification standard (see paragraph [29]), the Authority acknowledges that upholding the children’s interests complaint would place a limit on the broadcaster’s right to freedom of expression.

[38]   First, the Authority must assess whether, by upholding this part of the complaint, the limit placed on the broadcaster’s section 14 right would be “prescribed by law”.  Parliament has recognised the importance of the children’s interests standard by requiring the Authority to develop codes of broadcasting practice in relation to “the protection of children”.³ Further, the Codes of Broadcasting Practice have been developed in conjunction with broadcasters and approved by the Authority. The requirement in Standard 9 that broadcasters must consider the interests of child viewers is, in the Authority’s view, precisely what was intended by Parliament when it enacted the Broadcasting Act. For these reasons, the Authority considers that upholding a complaint under Standard 9 (children’s interests) would be prescribed by law.

[39]   Second, the Authority must consider whether upholding the Standard 9 complaint would be a justified limitation on the right to freedom of expression. In the Authority’s view, the purpose of the children’s interests standard is to protect children from broadcasts which might adversely affect them. Accordingly, the Authority considers that upholding a complaint under Standard 9 would place a justified limitation on a broadcaster’s right to freedom of expression.

[40]   Third, the Authority must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of the children’s interests standard on this occasion. The broadcaster’s obligations under Standard 9 are directly linked to its duties under the programme classification standard. The Authority has found above that the promo contained sexual references that were not suitable for unsupervised child viewers, and that it should not have been broadcast during a G-rated programme that children were likely to be watching. The G classification signals, particularly for parents and others caring for children, that a programme excludes material likely to be unsuitable for children or likely to alarm or distress them. The promo was not edited to comply with that requirement.

[41]   Upholding a breach of the children’s interests standard on this occasion would ensure that broadcasters take care when screening promos during programmes that are designated as suitable for children. In this respect, upholding this complaint clearly promotes the objective of Standard 9 (as outlined in paragraph [39] above).

[42]   In these circumstances, the Authority finds that upholding the children’s interests complaint places a justified and reasonable limit on TVNZ’s freedom of expression. It therefore upholds the complaint that the promo breached Standard 9.

Standard 1 (good taste and decency)

[43]   The Authority considers that the complainant’s concerns about good taste and decency have been adequately dealt with under Standards 7 and 9. Accordingly, the Authority subsumes its consideration of Standard 1 into its consideration of those standards.

For the above reasons the Authority upholds the complaint that the broadcast by TVNZ of a promo for Ugly Betty on 4 May 2008 breached Standards 7 and 9 of the Free-to-Air Television Code of Broadcasting Practice.

[44]   Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to impose an order on this occasion. The Authority considers that the publication of this decision is sufficient to clarify its expectations surrounding promos of this nature. It hopes that it will serve as a reminder to broadcasters to take care when advertising PGR programmes during G-rated host programmes.

Signed for and on behalf of the Authority

Joanne Morris
Chair
18 September 2008

Appendix

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

1.            Aidan Harrison’s formal complaint – 17 May 2008
2.           TVNZ’s response to the complaint – 19 June 2008
3.           Mr Harrison’s referral to the Authority – 2 July 2008
4.           TVNZ’s response to the Authority – 17 July 2008
5.           Further comments from Mr Harrison – 28 July 2008

¹See Decision No. 2008-040

²P v D and Independent News Auckland Ltd [2000] 2 NZLR 591, per Nicholson J