Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
The Tudors – contained brief flashes of two characters having sex – allegedly subliminal messaging in breach of programme information standard
Standard 8 (programme information) – flashes did not constitute subliminal perception – not upheld
This headnote does not form part of the decision.
 An episode of The Tudors, a drama series about the reign and marriages of King Henry VIII, was broadcast on TV One at 8.30pm on 13 July 2008. In one scene, the King and Ann Boleyn danced together. As they danced, five brief and separate shots of the couple having sex were shown. When the dance ended, a sex scene followed, during which Ann slapped the King’s face and scratched his back drawing blood. She then revealed to the King her desire for his ex-wife and first child to be killed.
 Rhonda Findlay made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme breached the programme information standard.
 The complainant stated that “as King Henry and Ann Boleyn are dancing, subliminal flashes intrude into the scene”. The flashes were quick, she said, so viewers could not be certain who the characters were or whether “it is sex taking place, something disturbing, or something totally innocent that has left them feeling confused”. It was not until the following scene that viewers could establish what was happening, she said, and that scene was disturbing in itself as it mixed sex and violence.
 Ms Findlay said that subliminal messaging had been banned worldwide, and that this scene was particularly disturbing as it invited “the unknown effect of viewing a man roughly pushing a woman onto a surface in pursuit of sex”. She argued that “using sex or sex and violence in a subliminal way is a danger to a community that already has a high rate of sexual assault”. Further, she said, the flashes occurred at 8.55pm during school holidays when teenagers would be viewing.
 Standard 8 and guideline 8b of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:
Standard 8 Programme Information
Broadcasters are responsible for ensuring that programme information and structure does not deceive or disadvantage the viewer.
Broadcasters should not use the process known as "subliminal perception" or any other technique which attempts to convey information to the viewer by transmitting messages below or near the threshold of normal awareness.
 TVNZ considered that, while the flash-forward shots of the couple having sex were very brief, they did not constitute subliminal perception. It disagreed that the programme makers were trying to convey information to viewers by transmitting messages below or near the threshold for normal awareness.
 The broadcaster maintained that the shots were used as a lead-in to the next scene which showed the King and Queen having “consensual rather than aggressive sex”. Although the shots were brief, it said, they were clear enough to show that it was the King and Queen in bed together. TVNZ argued that as well as being a lead-in to the following scene, these shots were “included as a dramatic technique to highlight the tension between the couple.” The shots were not an attempt at subliminal perception, it wrote.
 Accordingly, TVNZ concluded that the shots did not breach Standard 8 and declined to uphold the complaint.
 Dissatisfied with TVNZ’s response, Ms Findlay referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. She maintained that the programme contained subliminal flashes which left viewers feeling disturbed, even though the following scene explained them. Subliminal messaging was not permitted on television, she said, and the use of subliminal scenes that contained sex and violence was especially disturbing.
 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.
 Guideline 8b to the programme information standard prohibits broadcasters from using “‘subliminal perception’ or any other technique which attempts to convey information to the viewer by transmitting messages below or near the threshold of normal awareness”.
 The Authority finds that, while the flashes complained about by Ms Findlay were brief, they could not be considered “subliminal” in the sense that they were messages transmitted below or near the threshold of normal awareness. In the Authority’s view, the flash-forwards were a stylised technique used to show the sexual tension between the characters, and would have been readily visible to viewers.
 Accordingly, the Authority declines to uphold the complaint that the scene constituted “subliminal perception” in breach of Standard 8 (programme information).
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
19 December 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Rhonda Findlay’s formal complaint – 8 August 2008
2. TVNZ’s response to the complaint – 3 September 2008
3. Ms Findlay’s referral to the Authority – 30 September 2008
4. TVNZ’s response to the Authority – 8 October 2008