BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Dexter promo – contained footage of upcoming episodes with themes of murder and torture – allegedly in breach of good taste and decency, law and order, responsible programming and children’s interests standards

Findings
Standard 8 (responsible programming) – promo contained adult themes – incorrectly classified PGR – content warranted an AO classification – upheld

Standard 9 (children’s interests) – promo incorrectly classified – broadcaster did not adequately consider the interests of child viewers – upheld

Standard 1 (good taste and decency) – subsumed into consideration of Standards 8 and 9

Standard 2 (law and order) – promo did not encourage viewers to break the law or otherwise promote, condone or glamorise criminal activity – not upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]   A 30-second promo for the programme Dexter, a drama series about a serial killer, was broadcast during two separate episodes of 3 News on TV3. The first was at 6.51pm on Wednesday 22 July 2009 and the second at 6.36pm on Thursday 23 July 2009.

[2]   In the first half of the promo, a voice-over by Dexter accompanied a montage of various shots for the upcoming season, including: Dexter charging towards an unseen person while raising a weapon, Dexter raising a knife with both hands as if about to plunge it into someone, Dexter lying awake in bed while his voice could be heard saying, "Tonight's the night ... I'm coiled and ready to strike ... I really need to kill somebody ... when was the last time I sharpened my knives?"

[3]   After Dexter’s voiceover ended, the promo continued with more clips and dialogue from the programme. One clip showed Dexter holding a knife while on the phone with his girlfriend who told him “I know your heart’s in the right place”, to which he replied, “Absolutely”. The final clip in the montage showed one of Dexter’s victims staring up at Dexter as he stood over him holding medical equipment. The victim asked Dexter, “Why are you doing this to me?” Dexter responded by saying, “I’m not so much doing this to you, as I’m doing it for me”.

[4]   The voiceover and clip montage were interlaced with on screen graphics that read, “Tomorrow...meet Dexter...He puts the fun...in funeral... The laughter...in slaughter”. The promo concluded with a still image of Dexter with his chin cradled by what appeared to be a dead person’s hand and a voiceover that stated, “It’s killer TV – all new Dexter tomorrow on 3”.

Complaints

[5]   Ross Quayle made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the Dexter promo broadcast on 22 July breached broadcasting standards.

[6]   Jonathan Henderson made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the Dexter promo broadcast on 23 July breached Standard 9 (children’s interests).

Mr Quayle’s complaint

[7]   Mr Quayle argued that the promo had breached standards of good taste and decency, law and order, responsible programming and children’s interests. He stated that he had found the content of the promo offensive and disturbing, because he considered that it “glamorised killing” and criminal activity. The complainant argued that, while the programme would have provided context which would mitigate that effect, the promo had no such context.

[8]   The complainant argued that the promo should not have been broadcast “in peak viewing time” and contended that the broadcaster had incorrectly classified the promo. He considered that, because the promo was broadcast during children’s normally accepted viewing times, TVWorks had not adequately considered the interests of child viewers.

Mr Henderson’s complaint

[9]   Mr Henderson stated that the promo “portrayed a crazed looking individual wielding a long knife with the obvious intention of doing violence”. He considered that the promo should not have been broadcast during general viewing time when children could have been watching.

Standards

[10]   TVWorks assessed the complaints under Standards 1, 2, 8 and 9 and guidelines 1a, 8b and 9a of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observance 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 2 Law and Order

Broadcasters should observe standards consistent with the maintenance of law and order.

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 stress; and
• do not deceive or disadvantage the viewers.

Guideline 8b

• All promos (including promos for news and current affairs) should be classified to comply with the “host programme” (the programme in which they screen):
• Promos for AO programmes shown outside AO time should comply with the classification of the host programme;
• Promos shown during G or PGR programmes screening in AO time should comply with the G or PGR classification of the host programme;
• When a promo screens during an unclassified host programme (including news and current affairs) in G or PGR time, the promo must be classified G or PGR and broadcasters should pay regard to Standard 9 – Children’s Interests;
• When a promo screens adjacent to an unclassified host programme (including news and current affairs) in G or PGR time, the promo should comply with the underlying timeband;
• Broadcasters should be aware that promos showing footage of violence or other explicit material outside the context of the original programme may be unacceptable to viewers in the context of the host programme in which they screen.

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 Complainants

Mr Quayle’s complaint

[11]   Dealing with Standard 1 (good taste and decency), TVWorks contended that the context in which the broadcast was shown was important. It stated that the promo was rated PGR because of its “menacing tone and macabre references”. It contended that, while Dexter’s monologue made it clear that he had either committed murder or was intending to do so, no killings were depicted and the violence was limited to inference.

[12]   The broadcaster argued that, while the promo carried suggestions of calculated killings, it did not “glamorise killing”. While the promo was removed from the wider context of the programme, TVWorks believed that most viewers would have realised that Dexter was a fictional drama.

[13]   TVWorks argued that it was unlikely that viewers would have felt empathy for Dexter because he was clearly a dysfunctional character, “even in the narrow context of the promo”. It contended that the style of the promo captured the programme’s dark, brooding suspense, film noir aesthetic and darkly comic undertones, conveying that the show was a dramatic construction intended to entertain rather than inspire anti-social behaviour.

[14]   The broadcaster noted that the promo was broadcast during an unclassified news programme that was targeted at adults. It argued that it was unlikely that unsupervised young children would have been watching, as they were more likely to watch programming directed at them on other channels. It declined to uphold the complaint that the promo breached Standard 1.

[15]   With respect to Standard 2 (law and order), TVWorks argued that the promo did not contain any material that encouraged viewers to break the law. It argued that, while the promo characterised Dexter as a killer, this issue was “housed in what most viewers would clearly understand to be a dramatic context”.

[16]   The broadcaster considered that viewers would not have felt empathy toward Dexter, seeing him as a violent psychopath, and that the promo did not glamorise killing. It declined to uphold the Standard 2 complaint.

[17]   Turning to Standard 8 (responsible programming), TVWorks considered that the promo had been correctly rated PGR. It argued that the promo had not contained “any material likely to distress young children who, should they be viewing the news, would most likely be doing so with the guidance of a parent”. It declined to uphold the complaint that the promo breached Standard 8.

[18]   With respect to Standard 9 (children’s interests), the broadcaster reiterated its argument that young children were unlikely to watch news programmes unsupervised and that the promo had not contained any material that would have distressed young children.

[19]   TVWorks maintained that the promo had been correctly rated PGR, that the violence contained in the promo was implied rather than graphic, and that the promo was “sophisticated and directed towards adults”. It declined to uphold the children’s interests complaint.

Mr Henderson’s complaint

[20]   The broadcaster declined to uphold Mr Henderson’s complaint that the promo had breached Standard 9 for the same reasons outlined in its decision on Mr Quayle’s complaint.

Referral to the Authority

[21]   Dissatisfied with TVWorks’ response, Mr Quayle and Mr Henderson referred their complaints to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Mr Quayle’s referral

[22]   Mr Quayle reiterated his argument that he disagreed with the promo’s PGR rating and maintained that the promo had glamorised killing in a manner that breached standards of good taste and decency and law and order.

[23]   The complaintant argued that the promo’s content was unsuitable for children to watch regardless of whether they were being supervised by a parent or other adult.

Mr Henderson’s referral

[24]   Mr Henderson said that the promo “appeared unannounced with no prior parental warning of disturbing content” and, as a result, parents in charge of providing guidance had no time to act. He maintained that the promo had breached Standard 9.

Authority's Determination

[25]   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)

[26]   Standard 8 requires that programmes, including promos for programmes, are correctly classified and adhere to the time-bands set out in the Free-to-Air Television Code. The promo subject to complaint was for an AO-classified programme, Dexter. It was rated PGR by TVWorks and was broadcast on 22 July at 6.51pm and again at 6.36pm on 23 July during 3 News, which is unclassified.

[27]   Guideline 8b states that when a promo screens during an unclassified host programme (including news and current affairs) in G or PGR time, the promo must be classified G or PGR and broadcasters should pay regard to Standard 9 (children’s interests).

[28]   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.

[29]   In the Authority’s view, the promo contained sinister and disturbing content which had been taken out of the wider context of the programme. It would have been confusing and alarming to those people, such as younger viewers, who were unfamiliar with the series. The Authority considers that this impression was enhanced by the juxtaposition of murder and fun.

[30]   The Authority notes that the promo contained statements such as, “I really need to kill somebody” and the voice of a man saying, “Why are you doing this to me?”. Further, the promo clearly included references to the pleasure Dexter derived from murder and torture, and, as a result, the Authority considers it contained adult themes that were unsuitable for child viewers even when subject to the guidance of a parent or adult.

[31]   Accordingly, the Authority finds that the adult nature of the promo warranted an AO classification.

[32]   Having found that the promo was incorrectly classified, the Authority must consider whether to uphold this part of Mr Quayle’s complaint as a breach of Standard 8 (responsible programming).

[33]   The Authority acknowledges that upholding the Standard 8 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 TVNZ and Harrison,¹ the Authority determined that upholding a complaint under the responsible programming standard 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. The Authority considers that the objective of the responsible programming standard is 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 8 also plays an important role in the protection of children, because it assists parents and guardians in making informed choices about children’s viewing.

[34]   With that in mind, the Authority must 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. It finds that upholding a breach of the responsible programming 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 during their normally accepted viewing times. In this respect, upholding this part of the complaint clearly promotes the objective of Standard 8, and therefore places a justified and reasonable limit on TVWorks’ freedom of expression. The Authority upholds the Standard 8 complaint.

Standard 9 (children’s interests)

[35]   Having determined that the promo was incorrectly classified PGR, the Authority is also 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.

[36]   As discussed above in relation to the responsible programming standard (see paragraph [33]), the Authority acknowledges that upholding the children’s interests complaint would place a limit on the broadcaster's right to freedom of expression.

[37]   In TVNZ and Harrison,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.

[38]   With that in mind, the Authority 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. 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 TVWorks’ freedom of expression. The Authority upholds the Standard 9 complaint.

Standard 1 (good taste and decency)

[39]   The Authority considers that Mr Quayle’s concerns about good taste and decency have been appropriately dealt with under Standards 8 and 9. Accordingly, the Authority subsumes its consideration of Standard 1 into its consideration of those standards.

Standard 2 (law and order)

[40]   The Authority has previously stated (e.g. TVNZ and Gregory³) that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.

[41]   The Authority agrees with TVWorks that, while the promo characterised Dexter as a killer, viewers would have realised that the programme was a fictional adult drama. It finds that the promo did not contain any material that could be said to have encouraged viewers to break the law or which otherwise promoted, condoned or glamorised criminal activity.

[42]   Accordingly, the Authority declines to uphold Mr Quayle’s complaint that the promo breached Standard 2.

For the above reasons the Authority upholds the complaints that the broadcast by TVWorks Ltd of a promo for Dexter during 3 News on 22 and 23 July 2009 breached Standards 8 and 9 of the Free-to-Air Television Code of Broadcasting Practice.

[43]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to do so on this occasion. It considers that the publication of this decision is sufficient in all the circumstances and that it will serve as a reminder to TVWorks that promos broadcast during children’s normally accepted viewing times should not contain adult themes.

Signed for and on behalf of the Authority

Joanne Morris
Chair
25 November 2009

Appendix

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

Mr Henderson’s complaint

1.          Jonathan Henderson’s formal complaint – 26 July 2009

2.          TVWorks’ response to the formal complaint – 21 August 2009

3.          Mr Henderson’s referral to the Authority – 2 September 2009

4.          TVWorks’ response to the Authority – 9 September 2009

Mr Quayle’s complaint

1.          Ross Quayle’s formal complaint – 23 July 2009

2.          TVWorks’ response to the formal complaint – 20 August 2009

3.          Mr Quayle’s referral to the Authority – 26 August 2009

4.          TVWorks’ response to the Authority – 9 September 2009

¹Decision No. 2008-066

²Decision No. 2008-066

³Decision No. 2005-133