BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Erotica, promoted as an investigation of the phenomenon of sex as entertainment, was

broadcast by TV3 at 9.30pm on 9 May 1995.

Mr Smits complained to TV3 Network Services Ltd that the programme breached the

standards requiring good taste and balance. It had breached the former, he said, as it

contained pornographic material but no criticism of the pornography industry. The

latter had been contravened as the distinction between pornography and erotica had

not been debated.

In view of the abusive nature of Mr Smits' correspondence and telephone calls, TV3

declined to deal with his complaint. Dissatisfied with TV3's decision which he

described as character assassination, Mr Smits referred his complaint to the

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

response to the Authority's request for comment, TV3 submitted that the Authority

should decline to determine the complaint in all the circumstances. It also declined to

uphold the complaint that the standards had been breached.

For the reasons below, the Authority determined the complaint and declined to uphold

it.

Decision

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

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

has determined the complaint without a formal hearing.

Erotica, a programme which investigated the phenomenon of sex as entertainment with

film makers and some participants, was broadcast by TV3 at 9.30pm on 9 May.

Mr Smits complained that the broadcast breached the standards requiring good taste

and balance. The former was contravened, he continued, as much of the footage was

"actually pornographic" and there had not been any criticism of the pornography

industry. He did not regard the time of the broadcast as an excuse. The item was

unbalanced, he wrote, as it did not examine the distinction between pornography and

erotica.

Mr Smits' letter of complaint also criticised TV3 for its "promotion of porn" which

he described as a "ratings grab" and "propaganda of the most insidious and miserable

kind".

TV3 advised the Authority that it refused to deal with the complaint. Not only did it

object to the material in the formal complaint, it enclosed a copy of its telephone log

recording Mr Smits' strenuous objections to the broadcast and a copy of a letter to its

Programming Director which, in addition to referring to propaganda, described TV3's

staff as "miserable, rotten bastards".

On receipt of the letter, the Authority advised TV3 that although it had sent a copy of

the material to Mr Smits, it believed that it was TV3's responsibility to advise Mr

Smits directly of its decision.

Mr Smits referred TV3's decision to the Authority. He maintained that his telephone

calls to TV3 were not surprising given the anger he felt at the broadcast of his "hated

enemies" – "misinformation, imbalance and propaganda".

In its response to the Authority, TV3 submitted that the Authority should decline to

deal with the complaint, writing:

Mr Smits has become well known to both TV3 and TVNZ for his vexatious use

of the complaints procedure. He regularly rings and/or writes to both networks.

He is threatening and is abusive to staff. His bizarre vitriol has become more

intense and more personal over time.

It enclosed copies of the letters it had received from Mr Smits in recent months.

The Authority accepts that it – but not the broadcaster – has the power to decline to

determine a complaint in the all the circumstances under s.11(b) of the Broadcasting

Act 1989. While it could be an appropriate response when dealing with complaints

which contain inappropriately abusive material, the Authority advised TV3 that it

believed that it should not use the power unless the complainant receives a warning.

Accordingly, the Authority informed Mr Smits that it might well decline to determine

complaints in the future should they be couched in similar terms. It advised him,

nevertheless, that the complaint about the broadcast of Erotica had been accepted on

its merits and TV3 was requested to respond to the alleged breaches of the standards.

The above interaction is fully recorded in the Appendix and this decision now focuses

on the substance of the complaint.

TV3 assessed the complaint under the nominated standards in the Television Code of

Broadcasting Practice which require broadcasters:

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.

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

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

With regard to standard G2, TV3 pointed out the broadcast had been preceded with a

warning advising discretion and noted that there were no other complaints. Because

the item focussed on the use of erotica in entertainment, rather than either current

affairs or a controversial issue, TV3 argued that the G6 requirement for balance did not

apply.

The Authority was required to decide, first, whether the item dealt with an issue to

which standard G6 applied. The one possible heading was that the programme dealt

with a question "of a controversial nature". After reading the correspondence and

viewing the item, the Authority decided the item's examination of the use of erotica in

entertainment (as distinguished from pornography) did not fall under that heading.

Hence, it concluded that standard G6 was not relevant.

Mr Smits argued that the images screened were, in themselves, pornography. It was a

contention that the Authority was unable to accept, given the context in which the

programme was broadcast. The programme mainly involved interviews, and it

regarded the portrayal at 9.30pm of pictures, which could not be described as explicit,

as not offensive to community standards.

For the reasons given above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
26 October 1995

Appendix

Mr Smits' Complaint to TV3 Network Services Ltd - 10 May 1995

Phillip Smits of Auckland complained to TV3 Network Services Ltd about the

broadcast of Erotica between 9.30 - 10.30pm on 9 May 1995. He alleged that the

broadcast breached the standards requiring good taste and decency (G2) and balance

(G6).

The programme breached the standard requiring good taste, Mr Smits continued, as

much of the footage was "actually pornographic", there was no criticism of the

pornography industry and it was not broadcast at a late hour. As the programme had

not examined the debate about the difference between pornography and erotica, he

considered that it had been unbalanced.

Mr Smits concluded:

Right now I feel too angry/depressed/defiant/ ... to promise a complete analysis -

that is not to say I won't (if it becomes necessary) - and besides it is now too

late. It's been consumed, the damage is done - the damage being that every

person that consumed it is quite possibly somebody who thinks that porn is a

Ôgood thing' and pornographers are heroes. That was the programme's message

- propaganda of the most insidious and miserable kind.

I write this with a sense of great weariness and disillusionment - the (ever

present) irony is your people at Nightline wanted to do a profile of me on

K'Rd: "anti-porn man" and his glorious optimism at being part of a change in

public perception about pornography. You've driven me a hundred miles

backward in the eyes of that public (those who saw your abomination

ÔErotica'). I hope your ratings grab was a failure - I pray that it was. And you

can forget about me: I'm just so, so glad that I wasn't being used last week by

TV3 and then to suffer the nightmare of last night's promotion of porn. That

would have been too painful just too (bloody) painful.

TV3's Report to the Broadcasting Standards Authority - 6 June 1995

TV3 advised the Broadcasting Standards Authority that it refused to deal with Mr

Smits' complaint. In addition to enclosing a copy of Mr Smits' formal complaint

about the broadcast of Erotica, it attached a copy of a letter dated 9 May from Mr

Smits to its Programming Director (Gary Brown) and a copy of TV3's phone log page

of the same date.

The phone call log noted a furious male caller had described Erotica "as propaganda"

and "crap" and stated that TV3 would not get away with it. The letter to Mr Brown

focussed on an item in Hard Copy on 9 May which, combined with Erotica, evoked

the following remarks from Mr Smits.

I don't know where to start. The propaganda broadcast in 1 hour for the

pornography industry was almost unrelenting. My own concept of balance

attacked and attacked and attacked by this outrage of a Ôdocumentary'.

I don't know where to start - where to start trying to correct the imbalance and

the propaganda.

For this - you will suffer my wrath and all I can really say to you in a state of

distraughtness and utter, utter utter fury is WHY DON'T YOU JUST KICK

ME IN THE TEETH???? - you miserable rotten bastards.

...

P.S. You can count on a formal complaint following. You can count on it ...

On the same day as the Authority was advised by TV3 that it refused to deal with Mr

Smits (13 June 1995), the Authority received a copy of a fax sent by Mr Smits to

TV3 asking why he had not received a response to his formal complaint. He argued

that as TV3 had not replied to his complaint within the month, it would be

hypocritical for the broadcaster to accuse him of rudeness. Moreover, in view of

TV3's programming, he insisted that he had the right to be "amazed or intrigued or

amused or informed - or shocked or dismayed or angered or outraged". He added:

Some things are Ôentertainment' and some things are pornographic - some things

are propaganda. Do you know the difference??? Do you think you can tell????

I don't think you can.

Further Correspondence

On receipt of the above material, the Authority advised TV3 that although it had sent

Mr Smits a copy of the material received, it considered that it was TV3's

responsibility to advise Mr Smits directly of its decision.

When forwarding a copy of the material to Mr Smits, the Authority asked him to

confirm, in view of his fax to TV3 dated 12 June, that he intended to refer to the

Authority TV3's decision to decline to deal with his complaint.

Mr Smits' Complaint to the Broadcasting Standards Authority - 18 July 1995

After advising initially that he was too busy to respond to TV3 as he was focussing

on a complaint about a TVNZ item, Mr Smits referred to the Broadcasting Standards

Authority, under s.8(1)(a) of the Broadcasting Act 1989, TV3's decision declining to

deal with his complaint.

Mr Smits recorded that he had been considering preparing a transcript of the item

listed as "an investigation of the phenomenon of sex as entertainment" in order to

show that it reported the views of the pornography industry participants and nothing

from its opponents. However, after commenting on what he described as the

industry's exploitation of people, he wrote:

But I digress ... It's worth taking a look at WHY I got Ôso upset' at this

programme - I'm not sorry I wrung [sic] up 5 (or was it 6 times), I was left in

tears. I was distraught for days afterwards (in shock practically) - followed by

weeks of suppressed anger. But WHY??? - because it was going out to a

national TV audience - whoever was attracted/exposed to it for whatever reason

- virtually a whole hour of propaganda (the Ôdamage' done).

Misinformation/imbalance/propaganda - my hated enemies. The truth (opinion)

suppressed - that ÔErotica' summed up. The ad in the TV listing should have

read "Pornography - a promotion of the phenomenon of misogyny as

entertainment". I'm not sorry I went off my face at TV3. It is understandable

don't you think???...

Continuing to express his disgust at the programme, he was also critical of a

documentary broadcast by TV3 some time ago which had investigated pornography.

He concluded:

And just to finish, I don't want this referral rejected, but I'm not going to be

censored. You have to see the folly in insisting on that or trying to Ôforce' that -

my arguments are valid and not ever facetious. I don't apologise for describing

people (that perpetuate these outrages) for what I see them as. They won't say

what they think (of me) in this forum, but as I've discovered, they are quite

willing to should I ring them up. Mr Brown and Mr Pedersen [of TV3] should

remember that - they are only a phone call away.

TV3's Response to the Authority - 2 August 1995

The letter began:

TV3 does not wish to say anything specifically in response to Mr Smits'

complaint but we ask you to exercise your discretion and decline to deal with

the complaint.

Mr Smits has become well known to both TV3 and TVNZ for his vexatious use

of the complaints procedure. He regularly rings and/or writes to both networks.

He is threatening and is abusive to our staff. His bizarre vitriol has become more

intense and more personal over time.

Extracts from letters and phone calls from January 1994 until 15 July 1995 were then

quoted. The excerpts included comments when Mr Smits expressed his "contempt"

for the "callousness" of TV3's programming decisions, his "hatred" of Hard Copy as

an insidious, mindless "blow-job", another description of it as "sleazy titillation,

sexual exploitation" and that "I'll complain and complain, it will be war". The

comments included in the more recent correspondence are recorded above.

TV3 concluded:

We enclose copies of all correspondence referred to for your information. We

have not enclosed copies of our feedback log recording telephone calls in order to

ensure security for our staff members who have to take Mr Smits abusive

telephone calls. We are prepared to supply sworn statements from our

employees concerning Mr Smits' calls to this Network but we either require the

assurance of the Authority that we may do so without disclosing their identities

or concealing their identities for obvious security reasons.

The Erotica programme was prefaced with a warning about its contents. ... .

Except for the letter from Mr Smits, TV3 received no complaint in respect of

this programme.

Mr Smits' Final Comment - 9 August 1995

Addressing his reply to the Authority's chairperson, Mr Smits wrote:

I thought to say Ôno comment' but that would be inappropriate - TV3's letter is

too sad (and unfair) to let go completely unchallenged. It is, of course, little

more than an attempt at character assassination - deliberate enough to be

bordering on defamation (opinion). They fill their document up with Ôquotes'

taken out of the context of the letter(s) they are contained in - which are

(mostly) already a matter of record to all of the parties concerned. What's

new???? The matter of their staff and promised sworn statements is appalling

(to me) - the comment that those people need Ôprotection' from me equally

repugnant (and shocking).

Why don't TV3 do what they porn-merchants on K Rd did - serve a trespass

notice on me. And if my phone calls are so Ôthreatening and abusive' why don't

they Ôring the Police'???

It is a very, very sad move on the part of TV3. They should be ashamed.

I just want to say this to finish. I'm well aware that I'm surrounded by

hypocrites but if the BSA allow yourselves to be used by this Ônetwork' - to

back me into a corner then you really will see the fur fly. I remind myself that

whilst you seem almost incapable of punishing broadcasters - you have shown

yourself quite able to firstly threaten to, and then actually punish a complainant.

I'm proof of that. There is a crucial issue at stake here: the matter of balance.

TV3 have been unwilling/unable to defend their so-called ÔErotica" - they have

repeatedly harped on about my Ôunacceptable' (to them) reaction to the

programme's broadcast - and that I was the only complainant. I'm not into this

suppression thing like them. I'm pro-censorship, anti-pornography (read

propaganda). At least I'm honest.

ÔErotica' must be looked at and ruled on.

I look forward to that ruling.

The Authority's Response to TV3 and Mr Smits - 1 September 1995

While acknowledging that it had the power to decline to determine complaints under

s.11(b) of the Broadcasting Act 1989 in situations such as the present one, the

Authority advised TV3 that it was unlikely to do so without warning the complainant

of the possibility.

The Authority advised Mr Smits of the provision in s.11(b) of the Act and informed

him that it was a power which it could well use should his complaints inappropriately

abuse broadcasters.

TV3's Response to the Authority - 18 September 1995

In its report to the Authority, TV3 raised two points. First, as the programme was

prepared for "public consumption", Mr Smits did not reflect the public view and his

complaint under G2 could be seen as frivolous.

Secondly, as the programme was about the use of erotica in entertainment, it did not

deal with an issue to which standard G6 applied.

Mr Smits' Final Comment - 3 October 1995

Expressing the opinion that TV3's "sullen" response indicated that it was clearly

uncomfortable in dealing "with the likes of me", Mr Smits stated that TV3 had not

defended the item.

With regard to standard G2, Mr Smits said that TV3 had insulted him by suggesting

that his complaint was frivolous. He did not accept the line of argument which went:

entertainment is harmless, pornography is erotica, erotica is non-violent, pornography

is entertainment, entertainment is harmless.

As for standard G6, Mr Smits said that the programme was about pornography - not

erotica - and included interviews with some of "America's most vicious

pornographers".

He concluded:

No, I'm not sorry - but TV3 should be. They should have apologised in the

first place. They should have seen the programme for what it was - a kick in the

teeth for anyone trying to raise awareness about the harmfulness/destructiveness

of pornography. I saw the programme - I'm one of those people. You can't

argue against that.