BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Two and a Half Men and Scrubs promo – male character in Scrubs promo stated "I don’t like doing things I'm not good at", to which female character responded, "Yeah, that's why we don't have sex much" – male doctor in Scrubs promo talking to a female nurse said "My post-op is going in and out of consciousness. You know what I'd like to go in and out of?" – allegedly in breach of good taste and decency, accuracy, programme classification and children’s interests

Findings
Standard 7 (programme classification) and Standard 9 (children’s interests) – promo correctly classified PGR – sexual material was innocuous – broadcaster adequately considered the interests of child viewers – not upheld

Standard 5 (accuracy) – not applicable – not upheld

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

This headnote does not form part of the decision.

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Broadcast

[1]  A 30 second promo for the programmes Two and a Half Men and Scrubs was broadcast on TV2 at 7.44pm on 31 March 2009 during an episode of Hell's Kitchen (PGR). The promo was in two parts, the first advertising an upcoming episode of Two and a Half Men and the second an upcoming episode of Scrubs.

[2]  During the Scrubs segment, one of the male characters stated "I don't like to do things that I'm not good at", to which a female character responded, "Yeah, that's why we don't have sex much".

[3]  Also during the Scrubs segment, a male doctor said to a female nurse, "My post-op is still going in and out of consciousness. You know what I’d like to go in and out of?"

Complaint

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

[5]  Mr Harrison argued that the promo had not complied with standards of good taste and decency, because the sexual dialogue it contained was "crude", "lewd" and "smutty". He considered that the promo's content was inappropriate for broadcast during a PGR-rated host programme screening at 7.30pm. He noted that guideline 1b to the good taste and decency standard required broadcasters to consider the use of warnings when programmes contained material of a sexual nature.

[6]  With respect to accuracy, the complainant contended that the broadcaster was "misleading" viewers by focusing on sexual themes and actions in its promos.

[7]  Turning to programme classification, Mr Harrison argued that the promo was incorrectly classified PGR and that, because of its sexual content, it should have been classified AO.

[8]  In relation to children’s interests, the complainant stated that he and his two young daughters were watching television when the promo was broadcast and that it should have been preceded by a warning. Referring to guideline 9a, he argued that while his daughters were "too young to be alarmed", he and his wife had been alarmed by the sexual nature of the advertisements and considered that such material was inappropriate for broadcast prior to 8.30pm.

Standards

[9]  Mr Harrison nominated Standards 1, 5, 7 and 9 and guidelines 1a, 1b, 7b, 7e and 9a of the Free-to-Air Television Code of Broadcasting Practice. They 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.

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
7b   Broadcasters should ensure that all promos (including promos for news and current affairs) are classified to comply with the programme in which they screen ("host programme"). For example:
          (i)   promos for AO programmes shown outside AO time must comply with the
               classification of their host programme
          (ii)  promos shown in G or PGR programmes screening in AO time must comply with
               the G or PGR classification of their host programme.
7e   Broadcasters should consider the use of warnings where content is likely to offend or disturb a significant proportion of the audience.

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

[10]  TVNZ noted that the promo was broadcast during Hell's Kitchen, which was rated PGR (Parental Guidance Recommended). It noted that the PGR classification applied to programmes which contained material more suited for mature audiences but not necessarily unsuitable for child viewers when subject to the guidance of a parent or other adult.

[11]  The broadcaster considered that the material included in the promo did not stray beyond current norms of good taste and decency or that it exceeded the boundaries of a PGR classification. It argued that reference to and discussions about sex were acceptable within the boundaries of a PGR classification as long as nothing explicit was shown.

[12]  TVNZ considered that the promo did not contain any explicit material or language that would have been likely to disturb or alarm child viewers. It noted that while the character talking to the nurse questioned "you know what I'd like to go in and out of?" the answer was left to the imagination. It contended that while adult viewers would have understood the reference, it was not so obvious as to be readily understood by children.

[13]  The broadcaster considered that sex was "not a forbidden topic in the early evening and early evening sitcoms like Neighbours and Friends included casual comments and innuendo about sexual matters". It declined to uphold the good taste and decency complaint.

[14]  Turning to Standard 5 (accuracy), the broadcaster argued that the standard only applied to news, current affairs and factual programmes. Due to the fact that the promo advertised comedy programmes, Standard 5 did not apply, it said, and it declined to determine the accuracy complaint.

[15]  With respect to programme classification, TVNZ considered that the promo was correctly classified PGR. It argued the promo was light-hearted and adhered to the classification of the host programme. It reiterated that the verbal sexual references contained in the promo were inexplicit and the humour would have gone over the heads of younger viewers.

[16]  The broadcaster pointed out that both Two and a Half Men and Scrubs were classified PGR and contended that neither programme contained AO material. It declined to uphold the complaint that the promo breached Standard 7.

[17]  Dealing with Standard 9 (children's interests), TVNZ reiterated its arguments outlined in its consideration of good taste and decency and maintained that the promo did not contain any material likely to alarm or disturb children. It declined to uphold the complaint.

Referral to the Authority

[18]  Dissatisfied with TVNZ's response, Mr Harrison referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He reiterated the arguments contained in his formal complaint.

Authority's Determination

[19]  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) and Standard 9 (children’s interests)

[20]  Standard 7 requires that programmes and promos are appropriately classified and comply with the time-bands in which they screen.

[21]  Mr Harrison argued that the promo was incorrectly classified PGR and should have been classified AO. The Authority notes that the PGR classification is defined as follows in Appendix 1 of the Free-to-Air Television Code:

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 an adult.

[22]  In the Authority's view, the Scrubs promo contained light-hearted innuendo about sexual matters that was intended to be humorous. It considers that the first exchange – "I don't like to do things that I'm not good at", to which another character responded, "Yeah, that's why we don't have sex much" – was said in a matter-of-fact way and was relatively innocuous.

[23]  The Authority finds that, while the second exchange between the doctor and the nurse was crude, it was inexplicit and not the type of material that warranted an Adults Only classification. Further, it notes that the promo was broadcast in the PGR time-band during an episode of Hell's Kitchen, which was classified PGR, and that the programme scrubs was also classified PGR.

[24]  In these circumstances, the Authority concludes that the promo did not exceed the boundaries of the PGR classification and that it adhered to the classification of its host programme.

[25]  With respect to Standard 9, the Authority considers that, while the promo contained material more suited to a mature audience, the content was not necessarily unsuitable for child viewers when subject to the guidance of a parent or an adult.

[26]  In the Authority's view, the promo would not have distressed or alarmed children. It agrees with TVNZ that the sexual humour would have gone over the heads of younger viewers. Accordingly, the Authority concludes that the broadcaster adequately considered the interests of child viewers when broadcasting the promo at 7.44pm.

[27]  The Authority declines to uphold the complaint that the promo breached Standards 7 and 9.

Standard 5 (accuracy)

[28]  The accuracy standard only applies to news, current affairs and factual programmes. In light of the fact that the broadcast subject to complaint was a promo for a comedy programme, the Authority finds that Standard 5 does not apply and it declines to uphold the accuracy complaint.

Standard 1 (good taste and decency)

[29]  The Authority considers that the complainant’s concerns have been adequately addressed in its consideration of programme classification and children's interests. Accordingly, it subsumes this part of the complaint into its consideration of Standards 7 and 9.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
19 August 2009

Appendix

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

1.         Aidan Harrison's formal complaint – 31 March 2009
2.        TVNZ's response to the formal complaint – 30 April 2009
3.        Mr Harrison's referral to the Authority – 5 May 2009
4.        TVNZ's response to the Authority – 5 June 2009