BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Fanny Hill promo – broadcast during One News and Mucking In – allegedly in breach of good taste and decency, programme classification and children’s interests standards

Findings
Standard 7 (programme classification) – promo incorrectly classified – upheld

Standard 9 (children’s interests) – Mucking In – broadcaster did not adequately consider interests of child viewers by broadcasting promo during a G-rated programme – upheld

Standard 9 (children’s interests) – One News – majority considers broadcasting PGR promo during unclassified news did not breach standard – not upheld

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

Order
Section 16(4) – payment of costs to the Crown $2,000

This headnote does not form part of the decision.

Broadcast

[1]  A promo for Fanny Hill was broadcast twice on TV One on 27 July 2008, once during One News at approximately 6.31pm and then during Mucking In at 7.10pm. Mucking In was a G-rated programme where communities "mucked in" to create new gardens for worthy citizens.

[2]  Fanny Hill was a television programme based on the novel Memoirs of a Woman’s Pleasure by John Cleland. It told the story of an orphaned young woman who joined the "working girls" of London. The 35-second promo included the following brief images:

• a fully clothed woman kneeling in front of a man undoing his trousers, and gasping
• one woman saying to another, "spend a little time on your back to get back on your feet"
• a woman looking through the crack in a doorway and remarking "It’s so big!"
• a couple embracing on a couch including a close-up of the man’s hand on the woman’s bare thigh
• two women lying in bed together, and one saying "give us a kiss then"
• a man lowering a woman’s skirt to reveal her petticoat, followed by a close-up shot of the man tracing his fingers along the woman’s bodice towards her breasts
• a man collapsing on top of a woman, and the woman asking "are you dead sir?"

[3]  The promo was accompanied by the following voiceover:

In a time when sex was forbidden, one woman made a career out of it.
True love and adventure in a seductive Sunday Theatre.

Complaint

[4]  Adaire Oosterbroek lodged a formal complaint about the promo with Television New Zealand Ltd, the broadcaster, noting that it had been broadcast during One News and Mucking In. She argued that the promo had included the very material which made Fanny Hill "adult viewing" during programmes which were well before the 8.30pm watershed.

[5]  Referring to guideline 7b to Standard 7 (programme classification), the complainant maintained that the promo was not classified to comply with the G rating of Mucking In. She also argued that the sexual content of the promo was inappropriate for broadcast during an unclassified news programme.

Standards

[6]  TVNZ assessed the complaint under Standards 1, 7 and 9 and guidelines 7b and 7c 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 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.

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).

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

[7]  Looking at the host programmes during which the promo screened, TVNZ said that children were likely to watch One News with their parents or another adult. It noted that the 27 July episode of One News contained stories covering four deaths after a storm in the North Island (including footage of the destruction), details of a father killed in a house fire, and the controversy surrounding Condoleezza Rice’s visit to New Zealand.

[8]  TVNZ contended that the Fanny Hill promo had been correctly rated G to screen within One News and the G-rated Mucking In.

[9]  With respect to Standard 1 (good taste and decency), the broadcaster said that to constitute a breach of the standard the broadcast material must have been unacceptable to a significant number of viewers in the context in which it was shown. It noted that the promo was rated G and screened in a G-rated programme (Mucking In) and during One News which is unclassified. Further, it wrote, One News and Mucking In were followed by Sunday, a current affairs programme, all of which constituted a line-up of programmes targeted at adults.

[10]   TVNZ considered that the material in the promo did not stray beyond the current norms of good taste and decency or exceed the boundaries of either the PGR time-band or G rating. It said that the promo did not contain any explicit language or sexual material, all the shots were brief and no nudity was shown. In the broadcaster’s view, the promo did not breach Standard 1.

[11]  Considering Standard 7 (programme classification), TVNZ said it was satisfied that the promo was correctly rated G and appropriate to screen in One News and Mucking In. It maintained that guidelines 7b and 7c had been adequately considered in scheduling the promo. It did not uphold the programme classification complaint.

[12]  With respect to Standard 9 (children’s interests), the broadcaster found that the interests of child viewers had been adequately considered. The promo was broadcast during a line-up of programming that was not aimed at children, it wrote, and nothing in the promo would have been likely to disturb or alarm children. It found that Standard 9 was not breached.

Referral to the Authority

[13]  Dissatisfied with the broadcaster’s decision, Ms Oosterbroek referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[14]  Referring to TVNZ’s argument that the promo did not contain any sexually explicit material, Ms Oosterbroek commented that the word "explicit" was defined in the Collins English Dictionary as "clearly stated or expressed, with nothing implied, definite". The complainant contended that the language of the voiceover was also "saturated with sexually explicit content". She wrote:

Every element of the promo was explicitly sexual in its nature... when is a man’s hand on a woman’s thigh not sexual... As is a man running his hand along the edge of a woman’s bodice. As for a woman kneeling to undo a man’s trousers... not sexual?

[15]  The complainant stated that her family watched the news aware of the potential content, changing the channel or muting the sound where necessary. She stated that she took responsibility for her children watching the news, as she knew what that might entail. However, Ms Oosterbroek said that she could not "be responsible for unanticipated, inappropriate promotions" that she had a right not to expect before the watershed time of 8.30pm.

[16]  With respect to the promo’s G rating, the complainant stated that her children were alarmed by the promo and immediately recognised it as material outside their experience and inappropriate for viewing. She said that her daughters, aged 12, 10 and 8, had experienced discomfort and embarrassment at viewing the promo.

[17]  Ms Oosterbroek argued that Mucking In was not aimed at adult viewers but was "family viewing". Irrespective of a host programme’s target audience, she wrote, TVNZ was still obliged to keep content appropriate for a wider audience until 8.30pm.

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)

[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, Fanny Hill. It was rated G by TVNZ and was broadcast during One News, which is unclassified, and Mucking In, a G-rated programme broadcast at 7pm.

[20]  The Authority is unanimous in its view that the promo should have received a higher classification than G. A majority of the Authority (Joanne Morris, Diane Musgrave and Paul France) considers that the promo should have been classified PGR. It notes that G programmes must "exclude material likely to be unsuitable for children". In the majority’s view, the images and dialogue in the promo were salacious and contained obvious references to sexual activity. The promo would not have been suitable for unattended child viewers, and therefore the majority considers that it warranted a PGR classification.

[21]  A minority of the Authority (Tapu Misa) finds that the material in the promo contained adult themes which deserved an AO classification. The minority is of the view that the promo was not suitable for child viewers even when accompanied by a parent or guardian, due to the overtly sexual images and references. Ms Misa agrees with the complainant that the promo contained material which made Fanny Hill adult viewing, but unlike the programme it was more difficult for parents to avoid because it was unanticipated.

[22]  Having found that the promo was classified incorrectly, 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.

Standard 9 (children’s interests)

[25]  Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times. The Authority turns to consider whether this standard was breached by the broadcast of the Fanny Hill promo during Mucking In and One News.

Mucking In

[26]  As outlined above, the Authority considers that the Fanny Hill promo should have received a higher classification than G. It notes that Mucking In was a programme likely to be viewed by families, including young children who may have been watching unattended. In the Authority’s view, the broadcaster did not adequately consider the interests of child viewers by broadcasting the promo – which the majority considers should have been rated PGR, and the minority views as AO – during a G-rated programme broadcast during children’s normally accepted viewing times.

[27]  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.

[28]  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.

[29]  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.

One News

[30]  When screening promos during unclassified programmes such as One News, broadcasters must be mindful of guideline 7c to Standard 7. It states:

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).

[31]  A majority of the Authority (Joanne Morris, Diane Musgrave and Paul France) has determined above that the Fanny Hill promo warranted a PGR rating. Even though the promo was incorrectly classified G, the majority finds that the broadcaster did not breach Standard 9 by broadcasting the promo during One News. The Authority has noted on previous occasions that children are unlikely to watch the news unattended, and the majority considers that the promo was suitable for child viewers when subject to the guidance of a parent or other adult. Accordingly, the majority is of the view that TVNZ adequately considered the interests of child viewers by broadcasting the promo during One News. It does not uphold this part of the Standard 9 complaint.

[32]  Having concluded that the promo should have been classified AO, a minority of the Authority (Tapu Misa) also finds that the broadcaster did not consider the interests of child viewers by broadcasting the promo during One News. The minority notes that guideline 7c requires promos during unclassified programmes to be rated G or PGR. In the minority’s view, the broadcaster did not pay sufficient regard to the interests of child viewers by broadcasting an AO promo during One News, which was broadcast during children’s normally accepted viewing times.

Standard 1 (good taste and decency)

[33]  The Authority considers that the complainant’s concerns have been addressed adequately in its consideration of whether the promo was appropriately classified, and whether TVNZ considered the interests of child viewers. Accordingly, it subsumes this part of the complaint into its consideration of Standards 7 and 9.

For the above reasons the Authority upholds the complaint that the broadcast of a promo for Fanny Hill by Television New Zealand Ltd during One News and Mucking In breached Standard 7 of the Free-to-Air Television Code of Broadcasting Practice.

The Authority also upholds the complaint that the broadcast of the promo during Mucking In breached Standard 9 of the Free-to-Air Television Code of Broadcasting Practice.

[34]  Having upheld a complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[35]  Ms Oosterbroek submitted that TVNZ should be ordered to broadcast a statement summarising the decision, and to pay $5000 costs to the Crown.

[36]  TVNZ stated that it had been concerned about promos, and that much effort had gone into educating staff about the need to better adhere to broadcasting standards. It said that the process of scheduling promos had been significantly altered so that all prime-time promos went through the appraisals process. TVNZ considered that this action was appropriate and no orders would be necessary.

[37]  The Authority has considered the submissions on orders from the parties. Taking into account the nature of the breach, it is of the view that a broadcast statement would not be appropriate.

[38]  However, the Authority considers that TVNZ should be ordered to pay costs to the Crown. It notes that this promo was broadcast on 27 July 2008, by which time TVNZ had received two decisions from the Authority (Decision Nos 2008-018 and 2008-025) which upheld breaches of Standards 7 and 9 in relation to promos during children’s normally accepted viewing times. In the Authority’s view, these two decisions clearly signalled that immediate action was necessary in respect of the classification and broadcast of promos.

[39]  The Authority declined to make an order in Decision Nos 2008-018 and 2008-025, stating that they would serve as a reminder to broadcasters to take care when classifying promos for AO programmes, and broadcasting them during G-rated host programmes and the early evening news. While the Authority accepts that TVNZ has now altered its process for classifying promos, it considers that action should have been taken following the release of the above decisions.

[40]  In addition, the Authority considers that the broadcast of the Fanny Hill promo was a more serious breach of broadcasting standards than those involved in the previous decisions outlined above, particularly the broadcast of the promo during Mucking In. It has found that the images and dialogue in the promo were salacious and contained obvious references to sexual activity. Taking these factors into account, the Authority finds that an order of $2000 costs to the Crown is appropriate.

[41]  The Authority has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 in making the above order. For the reasons outlined above, it considers that ordering TVNZ to pay $2000 costs to the Crown is consistent with the New Zealand Bill of Rights Act's requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Order

Pursuant to section 16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $2,000, within one month of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
17 February 2009

Appendix

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

1.          Adaire Oosterbroek’s formal complaint – 27 July 2008
2.         TVNZ’s decision on the formal complaint – 25 August 2008
3.         Ms Oosterbroek’s referral to the Authority – received 15 September 2008
4.         TVNZ’s response to the Authority – 10 October 2008
5.         Ms Oosterbroek’s submissions on orders – 10 December 2008
6.         TVNZ’s submissions on orders – 23 December 2008