BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Criminal Minds promo – featured a woman unbuttoning her shirt to reveal her bra – implied she was a prostitute who had been killing her clients – allegedly in breach of good taste and decency, accuracy, programme classification and children's interests standards

Findings
Standard 7 (programme classification) and Standard 9 (children's interests) – promo contained adult themes – not suitable for child viewers or for broadcast during the news – PGR classification incorrect – upheld

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

Standard 5 (accuracy) – not a news, current affairs or factual programme – not applicable – not upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]  A promo for the crime drama Criminal Minds was broadcast on TV One at 6.45pm during One News on 23 April 2009. The promo featured a woman walking down a hallway, partially unbuttoning her shirt to reveal her bra, and letting down her hair. Voiceovers by a narrator and the characters implied that the woman was a prostitute who "specialises in powerful men", and who had been killing her clients. One character said, "I think your husband might have been talking to me because of some things he sexually did with this call girl", then another said "the victims all shared the same fetish". A voiceover stated, "This is one girl you don't want to call..." The promo included a fleeting shot of a man in underwear sitting in a chair having a strap tightened around his arm.

Complaint

[2]  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.

[3]  Mr Harrison maintained that the promo contained the word "sexual" and showed a woman unbuttoning her shirt to show her bra and cleavage as she went to a hotel room to act as a prostitute. He said there was also a "brief but definitely identifiable shot of a sex scene".

[4]  The complainant argued that the promo breached Standard 1 (good taste and decency) because it was in an inappropriate timeslot. He considered the use of the word "sexual" was not PGR material but should have been reserved for AO time.

[5]  With reference to guideline 5b to the accuracy standard, Mr Harrison contended that the promo was misleading and would have unnecessarily alarmed viewers, because it focused on the sexual content of the programme.

[6]  The complainant maintained that the promo had breached Standard 7 (programme classification) as its content warranted an AO classification, rather than PGR. He referred to guidelines 7a and 7c of that standard. With regard to Standard 9 (children's interests) and guideline 9a, Mr Harrison noted that Criminal Minds was AO and screened at 8.30pm. He said he was "alarmed at the crude and smutty sexual nature" of the promo, and expected to be able to watch TV with his family without fear of them being exposed to sexual content before 8.30pm.

Standards

[7]  TVNZ assessed the complaint under Standards 1, 5, 7 and 9 of the Free-to-Air Television Code of Broadcasting Practice, which 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.

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.

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.

Broadcaster's Response to the Complainant

[8]  TVNZ noted that the promo was broadcast during One News, and that guideline 7c to the programme classification standard required that promos during unclassified programmes outside AO time must be rated G or PGR.

[9]  With regard to Standard 1, TVNZ considered that several contextual factors were relevant. First, the promo screened during the news, when it was expected that child viewers would be supervised by an adult. It maintained that the promo did not contain any nudity, and the woman was walking down a hallway when she unbuttoned her blouse. Nothing sexual happened in the promo, it said.

[10]  Noting the complainant’s objection to the word "sexual", the broadcaster argued that the language was consistent with that often used in the host programme One News, and did not require a warning in that context.

[11]  TVNZ was satisfied that the promo did not contain a "sex scene". It said there was a brief shot of the torso of a man wearing underpants, sitting in a chair and having a strap tightened around his arm. It said that this was not a sex scene, and no violence was shown in the promo.

[12]  The broadcaster reiterated that the content of the promo was consistent with the host programme and would not have been unexpected during that timeslot. Accordingly, it declined to uphold the Standard 1 complaint.

[13]  TVNZ noted that Standard 5 applies to news, current affairs and factual programmes. A promo for a "police drama" did not fit into any of these categories, it said, so Standard 5 did not apply in the circumstances.

[14]  Looking at programme classification, TVNZ reiterated that it considered the content of the promo was consistent with its host programme regarding both the language used and the images shown. No warning was required as such material would be expected by a news viewer, it said. It declined to uphold the Standard 7 complaint.

[15]  With regard to Standard 9 (children’s interests), the broadcaster maintained that the promo did not contain anything that required an AO classification. There was no nudity or sexual behaviour; the woman was still clothed even though she unbuttoned her top. Nor was there any violence in the promo. TVNZ reiterated that it believed the promo was correctly classified PGR. It therefore considered that interests of child viewers were taken into in the classification and scheduling process for the promo. It declined to uphold the Standard 9 complaint.

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 the arguments contained in his original complaint. He disagreed with TVNZ that the footage of a man being strapped into a chair and the use of the word "sexual" did not constitute material of a sexual nature.

Authority's Determination

[18]  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)

[19]  Standard 7 states that broadcasters are responsible for ensuring that programmes are appropriately classified. The promo subject to complaint was for an AO-classified programme, Criminal Minds. It was rated PGR by TVNZ and was broadcast at 6.45pm during One News, which is unclassified. Guideline 7c to Standard 7 states:

Guideline 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).

[20]  The PGR and AO classifications are defined as follows in Appendix 1 of the 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.

AO – Adults Only
Programmes containing adult themes and directed primarily at mature audiences.

[21]  In the Authority's view, the promo clearly included references to both sexual and sadistic behaviour and, as a result, it contained adult themes. The editing of the promo, including brief interspersed shots (such as that of a man being strapped into a chair) as well as echoing voices and dialogue referring to sexual activity and murder victims, created a sinister and foreboding tone that, cumulatively, was unsuitable for child viewers. The Authority considers that, although borderline – in the sense that the content was relatively inexplicit visually – the adult nature of the promo warranted an AO classification.

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

[23]  The Authority acknowledges that upholding the Standard 7 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 Decision No. 2008-066, the Authority determined that upholding a complaint under Standard 7 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 7 in the following terms:

... 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.

[24]  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 7 on this occasion. It finds that upholding a breach of the programme classification standard would ensure that broadcasters take care to correctly classify promos so that viewers can make informed choices, and children are not exposed to unsuitable material. In this respect, upholding this part of the complaint clearly promotes the objective of Standard 7, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression. The Authority upholds the Standard 7 complaint.

[25]  Having determined that the promo was incorrectly classified PGR, the Authority is satisfied that the broadcaster did not adequately consider the interests of child viewers in screening the promo during children’s viewing times before the 8.30pm Adults Only watershed.

[26]  As discussed above in relation to the programme classification standard (see paragraph [23]), the Authority acknowledges that upholding the children’s interests complaint would place a limit on the broadcaster's right to freedom of expression.

[27]  In Decision No. 2008-066, 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.

[28]  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. It finds that upholding a breach of the children’s interests standard would ensure that broadcasters take care to correctly classify promos so that children are not exposed to unsuitable material. In this respect, upholding this part of the complaint clearly promotes the objective of Standard 9, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression. The Authority upholds the Standard 9 complaint.

Standard 1 (good taste and decency)

[29]  The Authority considers that Mr Harrison’s concerns have been appropriately dealt with under Standards 7 and 9. Accordingly, the Authority subsumes its consideration of Standard 1 into its consideration of the programme classification and children’s interests standards.

Standard 5 (accuracy)

[30]  Standard 5 relates to news, current affairs, and other factual programmes. In the Authority's view, a promo for a fictional crime drama does not fall within any of these categories. Accordingly, the Authority finds that the accuracy standard does not apply, and it declines to uphold this aspect of the complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of a promo for Criminal Minds during One News on 23 April 2009 breached Standards 7 and 9 of the Free-to-Air Television Code of Broadcasting Practice.

[31]  Having upheld a complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. Given the Authority's view that the promo was borderline AO, it does not intend to do so on this occasion. The Authority is satisfied that this decision will serve as a reminder to TVNZ to take care when classifying promos which are to be screened during children’s viewing times.

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 – 24 April 2009
2.        TVNZ's response to the complaint – 22 May 2009
3.        Mr Harrison's referral to the Authority – 1 June 2009
4.        TVNZ's response to the Authority – 30 June 2009