BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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An appeal against this decision was dismissed in the High Court:
CIV-2010-485-002008  PDF3.33 MB

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Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Home and Away – included scene in which a couple started kissing – man removed girl’s robe leaving her in a bra and pyjama pants – man lay on kitchen table while the girl straddled him as they continued to kiss – allegedly in breach of good taste and decency, responsible programming and children’s interests standards

Findings
Standard 8 (responsible programming) – episode incorrectly classified – should have received a PGR rating, not G – inappropriate for unaccompanied child viewers – upheld

Standard 9 (children’s interests) – broadcaster did not consider interests of child viewers – upheld

Standard 1 (good taste and decency) – broadcaster did not observe standards of good taste and decency by broadcasting sexual material in the G time-band – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]   An episode of Home and Away was broadcast on TV3 at 5.30pm on Wednesday 24 March 2010. The episode included a scene in which two adult characters, Liam and Martha, began kissing passionately in the kitchen of a house.

[2]   While they were kissing, Liam removed Martha’s bathrobe leaving her in a bra and pyjama pants. Martha then pulled the tablecloth off the kitchen table and cutlery and dishes fell to the floor. Liam lay back on the table, while Martha moved up onto the table straddling him as they continued to kiss.

[3]   The scene ended when another character walked into the room. The couple quickly got off the table and Martha covered her chest with the bathrobe while Liam left the room.

Complaint

[4]   Gerhard Sundborn made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the kissing scene contained in the programme had breached broadcasting standards relating to good taste and decency, responsible programming and children’s interests.

[5]   Mr Sundborn considered that “this type of sexually charged and obvious scene” was inappropriate for child viewers.

Standards

[6]   Standards 1, 8 and 9 and guidelines 1a and 9a of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Guideline 1a

Broadcasters will take into account current norms of good taste and decency bearing in mind the context in which any content occurs and the wider context of the broadcast e.g. programme classification, target audience, type of programme and use of warnings etc.

Standard 8 Responsible Programming

Broadcasters should ensure programmes:

• are appropriately classified;

• display programme classification information;

• adhere to timebands in accordance with Appendix 1;

• are not presented in such a way as to cause panic, or unwarranted alarm
  or undue distress; and

• do not deceive or disadvantage the viewer.

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters should 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 that would disturb or alarm them.

Broadcaster's Response to the Complainant

[7]   With respect to good taste and decency, TVWorks stated Home and Away was broadcast at 5.30pm during the G-rated time-band immediately preceding 3 News. It noted that the programme had been broadcast in this timeslot since 2005.

[8]   The broadcaster argued that the programme screened in a timeslot that was “not considered to be predominately children’s viewing time on TV3” and that children’s viewing time on the station was between 3pm and 4.30pm on weekdays.

[9]   TVWorks considered that the theme of sex in general was not an issue that warranted a PGR rating of its own accord. It maintained that as long as references to sex did not go into any detail and visual portrayals were limited to kissing and other initial indicators, “such as the removal of the female’s robe to show her bra and pyjama pants”, child viewers would not be alarmed or distressed by such scenes.

[10]   The broadcaster noted that the characters involved were adults and that there was no nudity. It contended that the scene did not contain any salacious content that would warrant a PGR or AO classification.

[11]   TVWorks argued that Home and Away had a broad target audience that included teens and adults, and that, like all soap operas, its “stock-in-trade” was romantic relationships. It contended that, considering the programme’s target audience and audience expectations of the show, the material was acceptable in context. It declined to uphold the Standard 1 complaint.

[12]   Looking at responsible programming, the broadcaster stated that, for the reasons outlined under its consideration of good taste and decency, the episode was correctly rated G. It declined to uphold the complaint that Standard 8 had been breached.

[13]   Turning to Standard 9, TVWorks said that Home and Away was scheduled in a line-up between The Simpsons and 3 News. It contended that “all of these programmes are aimed at an older ‘G’ audience”, as they contained more sophisticated themes and ideas than programmes aimed solely at children.

[14]   The broadcaster argued that the scene in which the characters kissed as a prelude to sex was not out of place and was appropriate for the timeslot. It considered that it had sufficiently considered the interests of child viewers, and therefore declined to uphold the Standard 9 complaint.

Referral to the Authority

[15]   Dissatisfied with the broadcaster’s response, Mr Sundborn referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. The complainant maintained that the content of the programme was inappropriate for broadcast at a time when young viewers could have been watching.

Authority's Determination

[16]   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 8 (responsible programming)

[17]   Standard 8 requires programmes to be correctly classified and screened in appropriate time-bands. This episode of Home and Away was rated G (General) and broadcast at 5.30pm. The G classification is defined as follows in Appendix 1 of the Code:

G – General

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

G programmes may be screened at any time.

[18]   In determining whether this episode of Home and Away was appropriately given a G rating, we have considered the nature of the scene complained about. In our view, the scene was raunchy and sexually charged. The removal of Martha’s bathrobe, revealing her bra, and her straddling of Liam on the kitchen table as they continued to kiss passionately went well beyond the level of sexual activity that should be included in a G-rated programme.

[19]   G-rated programmes should be suitable for children to view unaccompanied. In our opinion, the material in this programme would only have been suitable for children to view when accompanied by a parent or guardian. We consider it likely that the scene would have been alarming and distressing to young children when not subject to guidance.

[20]   For this reason, we conclude that this episode of Home and Away should have been rated PGR rather than G. Having reached this conclusion, the Authority must decide whether to uphold the complaint as a breach of Standard 8.

[21]   The Authority acknowledges that upholding the responsible programming complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Christini and RadioWorks Ltd,¹ the Authority determined that upholding a complaint under Standard 8 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In our view, the responsible programming standard exists to ensure, among other things, that broadcasters correctly classify programmes so that viewers are sufficiently informed as to their likely content.

[22]   With that in mind, we must now consider whether it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of Standard 8 on this occasion. We have found that this episode of Home and Away was unsuitable for child viewers unaccompanied by a parent or guardian, and therefore it should not have received a G-rating. Upholding a breach of the responsible programming standard on this occasion would ensure that broadcasters take care to correctly classify programmes so that children are not exposed to unsuitable material. In this respect, upholding the complaint clearly promotes the objective of Standard 8 (as outlined in paragraph [21] above).

[23]   In these circumstances, we find that upholding the complaint would be a justified and reasonable limit on TVWorks’ freedom of expression. We therefore uphold the complaint that the broadcast breached Standard 8.

Standard 9 (children’s interests)

[24]   Having determined that the programme was incorrectly classified G, we are also satisfied that the broadcaster did not adequately consider the interests of child viewers by screening the episode during children’s viewing times at 5.30pm.

[25]   We reject completely TVWorks’ assertion that children’s viewing time on TV3 is between 3pm and 4.30pm on weekdays. Guideline 9a to Standard 9 recognises that children’s normally accepted viewing times extend until 8.30pm, and guideline 9c recognises that children may stay up later on Friday and Saturday nights and during school holidays.

[26]   For the broadcaster to argue that 5.30pm is “not considered to be predominately children’s viewing time on TV3” and that the programme was “aimed at an older ‘G’ audience” displays, in our view, disregard for the G classification and the guidelines in the Free-to-Air Television Code. There is no distinction between children of different ages within the G classification; all G programmes must be suitable for unaccompanied children of any age.

[27]   We consider that the scene complained about was inappropriate for broadcast during a G-rated programme at 5.30pm. We therefore find that the broadcaster failed to consider the interests of child viewers by broadcasting the programme in that context.

[28]   As discussed above in relation to the responsible programming standard (see paragraph [21]), we acknowledge that upholding the children’s interests complaint would place a limit on the broadcaster’s right to freedom of expression.

[29]   In Harrison and TVNZ,² the Authority determined that upholding a complaint under Standard 9 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 9 in the following terms:

In the Authority's view, the purpose of the children's interests standard is to protect children from broadcasts which might adversely affect them.

[30]   With that in mind, we must consider whether it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of Standard 9 on this occasion. We find that upholding a breach of the children’s interests standard clearly promotes the objective of Standard 9, because the material was unsuitable for broadcast during G time. Therefore, we find that upholding the complaint places a justified and reasonable limit on TVWorks’ freedom of expression, and we uphold the Standard 9 complaint.

Standard 1 (good taste and decency)

[31]   Standard 1 requires broadcasters to observe standards of good taste and decency. Guideline 1a states that broadcasters should bear in mind the context in which any content occurs and the wider context of the broadcast, including programme classification, target audience and warnings.

[32]   Having found above that the programme was incorrectly classified G, we also consider that the broadcaster failed to observe standards of good taste and decency by broadcasting this material at 5.30pm during the G time-band. We are of the view that the broadcast of this material in that context – when children should be able to watch television unaccompanied – would be unacceptable to the majority of viewers.

[33]   Having reached this conclusion, we must consider whether to uphold the complaint as a breach of Standard 1.   

[34]   We acknowledge that upholding the Standard 1 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Turner and TVNZ,³ the Authority determined that upholding a complaint under Standard 1 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In our view, the primary objective of Standard 1 is to protect against the broadcast of sexual content, violent material, and language that exceeds current norms of good taste and decency in the context in which it was broadcast. 

[35]   With that in mind, we must consider whether it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of Standard 1 on this occasion. We find that upholding a breach of the good taste and decency standard on this occasion would ensure that television broadcasters take care to ensure that sexual content which exceeds the G classification is not broadcast during the G time-band when children are likely to be watching television unaccompanied. In this respect, upholding the complaint clearly promotes the objective of Standard 1, and therefore places a justified and reasonable limit on TVWorks’ freedom of expression. We uphold the complaint that the broadcast breached Standard 1.

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of Home and Away on Wednesday 24 March 2010 breached Standards 1, 8 and 9 of the Free-to-Air Television Code of Broadcasting Practice.

[36]   Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on Orders

[37]   Mr Sundborn did not make any submissions on orders.

[38]   TVWorks submitted that the content which led the Authority to uphold the complaint was specifically appraised and permitted to remain in the episode as a result of a decision by the Authority concerning a previous complaint about a different episode of Home and Away.⁴ It stated that its appraisers had assessed the episode based on the boundaries established by that decision.

[39]   The broadcaster said that it would now make future content assessment decisions based on the boundaries established by this decision. It submitted that the publication of the decision was an adequate response and that it was not appropriate to impose any further penalty.

Authority’s Decision on Orders

[40]   With respect to TVWorks’ comments about our decisions setting boundaries, we want to stress that this decision does not represent the boundary of what is acceptable in a G-rated programme. Rather, the level of sexual activity contained in the episode of Home and Away went well beyond what should be included in a G-rated programme.

[41]   However, we note that this is the first time that a complaint about sexual content in Home and Away has been upheld, and we consider that the publication of the decision is sufficient penalty in all the circumstances.

Signed for and on behalf of the Authority

Peter Radich
Chair
14 September 2010

Appendix

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

1.            Gerhard Sundborn’s formal complaint – 24 March 2010

2.           TVWorks’ response to the formal complaint – 25 March 2010

3.           Mr Sundborn’s referral to the Authority – 26 March 2010

4.           TVWorks’ response to the Authority – 29 April 2010

5.           TVWorks’ submissions on orders – 6 August 2010

¹Decision No. 2009-142

²Decision No. 2008-066

³Decision No. 2008-112

⁴Simpson and TVWorks Ltd, Decision No. 2009-120