Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Band of Brothers – sex scene broadcast at approximately 8.40pm – allegedly in breach of good taste and decency, responsible programming, and children’s interests standards
Standard 9 (children’s interests) – sex scene constituted strong adult material – shown too soon after the 8.30pm Adults only watershed – upheld
Standard 1 (good taste and decency) – programme’s content appropriate for AO-classified programme broadcast at 8.30pm – not upheld
Standard 8 (responsible programming) – programme correctly classified AO – not upheld
This headnote does not form part of the decision.
 An episode of the mini-series Band of Brothers was broadcast on TV One at 8.30pm on Monday 15 March 2010. The series was based on a best-selling book about a World War II United States Army airborne unit known as Easy Company.
 Eight minutes into the programme, a brief sex scene involving an American soldier and a German woman was shown. The couple were in bed and the woman was naked and sitting on the man’s lap moving back and forth. The man then rolled the woman over so that he was lying on top of her. They briefly continued having sex covered up to their waistlines in bed sheets before the soldier’s superior walked in and the couple stopped, with the soldier jumping out of bed to salute the officer.
 During the scene, flashes of the woman’s bare breasts could be seen and the man’s naked bottom was visible briefly when he jumped out of the bed. The scene was shot from a side angle slightly behind the couple and no genitalia was visible at any time.
 The programme was preceded by the following written and verbal warning:
The following programme is rated Adults Only. It contains frequent use of language that may offend and graphic violence that may disturb some viewers.
 Melanie Riwai-Couch made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the sex scene breached standards of good taste and decency.
 The complainant stated that she had not seen the warning at the beginning of the programme and argued that it was “unreasonable to think people will be watching programmes from the very beginning to the end”.
 Ms Riwai-Couch contended that there was no subtlety in the scene and that the broadcaster should have exercised greater discretion when children were still “up and about”. She considered that the scene should have been edited out given the time of broadcast.
 Standards 1, 8 and 9 and guideline 9b 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.
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.
When scheduling AO material to commence at 8.30pm, broadcasters should ensure that strong adult material is not shown soon after the watershed.
 TVNZ contended that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was shown, including the time of broadcast, the programme’s classification, the target audience, and the use of warnings if any.
 The broadcaster noted that the programme had screened at 8.30pm, was classified AO, and that it had been preceded by a verbal and written warning. It contended that audiences were familiar with the concept that AO material would screen after 8.30pm and that the timeslot was not considered “family viewing time”.
 TVNZ argued that the sex scene was relatively discreet and noted that, while a side view of the woman’s breasts was shown and the man’s naked bottom was momentarily visible as he jumped out of the bed, there was no genital nudity. It contended that the scene was brief and important in the context of the episode, as it established the male character involved as “a real person capable of humour and human emotions – making his death in the next episode more dramatic”.
 The broadcaster considered that the scene was appropriate for broadcast at 8.40pm during an AO-classified programme, and it declined to uphold the Standard 1 complaint.
 Dissatisfied with the broadcaster’s response, Ms Riwai-Couch referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 The complainant noted that the content warning preceding the broadcast did not state that the episode contained sex scenes and nudity. She contended that the showing of breasts was not the issue per se, but rather the depiction of the characters actively engaged in sexual intercourse.
 Having taken a preliminary look at Ms Riwai-Couch’s complaint, the Authority considered that the complainant had raised Standard 8 (responsible programming) and Standard 9 (children’s interests) in her complaint. It provided TVNZ with the opportunity to make submissions on these standards.
 With respect to Standard 8, TVNZ noted that this was the fourth screening of the series Band of Brothers. All the screenings were played at 8.30pm and was rated AO. Band of Brothers screened on a Monday night during term time for this screening. The broadcaster argued that it was reasonable to assume that younger children would be in bed at 8.30pm during school time.
 TVNZ said that Band of Brothers was preceded by a written and verbal warning that gave notice of the AO rating of the episode, and maintained that the sex scene was relatively discreet. It was of the opinion that the sex scene was acceptable in an AO- rated programme screening at 8.30pm, noting that the episode was rated M by the Film & Video Labelling Body. TVNZ did not agree that Standard 8 was breached.
 Looking at Standard 9, TVNZ noted that the AO watershed had been 8.30pm for over 20 years and considered that audiences were familiar with the concept that AO material screens at that time. It argued that “8.30pm at night is not considered ‘children’s normal viewing time’ or ‘family viewing time’”.
 TVNZ considered that Standard 9 was not breached in this regard.
 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 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times, usually up to 8.30pm. Guideline 9b states that when scheduling AO material to commence at 8.30pm, broadcasters should ensure that strong adult material is not shown soon after the watershed.
 We note that the sex scene subject to complaint occurred eight minutes into the programme. We consider that, while no genitalia was visible, the sexual content contained in the scene, such as the bare-breasted woman moving back and forth while straddling the man, constituted strong adult material as envisaged by guideline 9b.
 In our view, the broadcaster should have exercised greater discretion with respect to the sex scene considering its strong adult content and close proximity to the 8.30pm watershed. For this reason, we find that the broadcaster failed to adequately consider the interests of child viewers.
 Having reached this conclusion, we must consider whether to uphold the complaint as a breach of Standard 9.
 In Harrison and TVNZ,1 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.
 With that in mind, 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 9 on this occasion. We find that upholding a breach of the children’s interests standard is proportionate because the broadcast of strong adult material soon after the Adults Only watershed is not in accordance with guideline 9b and is therefore inconsistent with the broadcaster’s obligations set out in Standard 9.
 In this respect, upholding the complaint clearly promotes the objective of Standard 9, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression. Accordingly, we uphold the Standard 9 complaint.
 When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:
 While we have upheld that the sex scene being broadcast so close to the Adults only watershed breached Standard 9, we consider that the rest of programme’s content was acceptable in the context of an AO-classified programme broadcast at 8.30pm. Taking the above contextual factors into account, we decline to uphold the complaint that the broadcast breached Standard 1.
 As mentioned in paragraph  above, the only issue for us on this occasion was the fact that strong adult material was shown eight minutes after the 8.30pm watershed. In our view, the material contained in the programme was consistent with its AO classification and the broadcast did not contain any material strong enough to warrant restricting the time of broadcast to after 9.30pm.
 Accordingly, we decline to uphold the responsible programming complaint.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Band of Brothers on 15 March 2010 breached Standard 9 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. We consider that this decision will serve as a reminder to TVNZ that it needs to exercise appropriate discretion in accordance with guideline 9b when selecting material for broadcast close to the 8.30pm Adults Only watershed.
Signed for and on behalf of the Authority
5 August 2010
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Melanie Riwai-Couch’s formal complaint – 15 March 2010
2. TVNZ’s response to the formal complaint – 12 April 2010
3. Ms Riwai-Couch’s referral to the Authority – 15 April 2010
4. TVNZ’s response to the Authority – 20 May 2010
5. TVNZ’s further submissions – 25 June 2010
1Decision No. 2008-066