Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Shortland Street – episode contained violent scenes – man hit another’s head on a rock – man hit with baseball bat – unconscious man put in car and car set alight – allegedly in breach of standards of good taste and decency
Standard 1 (good taste and decency) – programme contained disturbing adult themes and violence – unsuitable for children even when supervised by an adult – upheld by majority
This headnote does not form part of the decision.
 An episode of Shortland Street was broadcast on TV2 at 7pm on Tuesday 2 September 2008. It began with a car chase involving one of the central characters, Dr Craig Valentine, who was eventually forced off the road and down a bank. Dr Valentine was in possession of incriminating evidence against a pharmaceutical company, and on his way to present it to the police.
 Dr Valentine abandoned his car and attempted to escape on foot from the henchmen who were chasing him. Throughout the programme he was shown struggling with his heart condition and continuing to run and hide from the men. One of them caught up with Dr Valentine, and they fought in the bush. As they wrestled on the ground, Dr Valentine grabbed the man by the shoulders and hit his head on a rock on the ground. This fight scene was approximately 20 seconds in duration.
 Having rendered the man unconscious, Dr Valentine continued trying to escape. Later, the three henchmen confronted him in a clearing in the bush. They asked him where the documents were; Dr Valentine refused to disclose their whereabouts. One of the men approached him holding a baseball bat, and hit him with it. The blow was not seen on screen; the first shot showed the man swinging the bat, then in the next shot Dr Valentine was shown falling to the ground as a result of the blow.
 Towards the end of the episode, Dr Valentine was shown bruised, bloodied and unconscious in the front passenger seat of his car. The henchmen set the car alight, and Dr Valentine was shown through the passenger window as the flames started rising outside the car. The following shot showed the car from above completely consumed by flames.
 The episode was preceded by the following verbal and written warning:
The following programme is rated PGR. It contains violence that may disturb and scenes that may not be suitable for a younger audience. We recommend the guidance of a parent or other adult.
 Mark Turner made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the episode breached standards of good taste and decency. He argued that “the violence in this episode was totally unacceptable given the time of night the programme is screened”.
 Mr Turner referred to the scene in which “the doctor who was being chased first smashed the bad guy’s head onto a rock during a fight. He was then set upon by three men armed with baseball bats that beat him up before placing his beaten body in his car and setting it on fire”.
 Mr Turner nominated Standard 1 of the Free-to-Air Television Code of Broadcasting Practice, which provides:
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.
 TVNZ argued that to constitute a breach of Standard 1 the broadcast material must be unacceptable to a significant number of viewers in the context that it is shown, including the programme’s classification, the time of broadcast, the target audience and the use of warnings.
 The broadcaster noted that Shortland Street was rated PGR, allowing for material more suited to a mature audience, and with the intention that children would view it in the company of an adult. The warning gave a precise indication that the material in the episode included violence and may not be suitable for a younger audience, giving adults and caregivers ample opportunity to decide if they wished their children to view the episode, TVNZ said.
 TVNZ emphasised that the violence in the episode had been carefully edited by the production company in consultation with TVNZ appraisers to ensure that it conformed to its PGR classification. The fight scene was brief, it said, and important to the storyline. The fact that Dr Valentine was in danger was clearly signalled, and the scene was not gratuitous in that context. Further, TVNZ maintained that “the man’s head hitting the rock was a coincidental consequence of fighting in the bush. It was not intentional or deliberate that his head hit the rock”. The scene had been edited by Shortland Street’s producers at the TVNZ appraisers’ request, it said.
 The scene in which Dr Valentine was confronted by the three henchmen was also important to the storyline and therefore acceptable in context, TVNZ said. It was edited to conform to the boundaries of the PGR classification, and the violence was implied, not shown graphically on screen. TVNZ noted that, in the final car scene, Dr Valentine’s body was not shown in the burning vehicle, though the aerial shot and previous shots implied that he was in the car.
 The broadcaster noted some of the Authority’s previous decisions about Shortland Street. In Decision No. 2001-231, which included a “scary” scene involving a female character frightened by a voodoo object, the Authority found that “the PGR rating which applies to Shortland Street assumes some responsibility on the part of parents and care-givers... [who] have had an opportunity over the years to become familiar with the series. This has enabled them to reach an informed decision on their children’s viewing practices”. The Authority declined to uphold the complaint.
 In the Authority’s Decision No. 1997-187, about the screening of an attempted murder on Shortland Street, the Authority found that there were no aspects of the depiction of the attempted murder that threatened broadcasting standards, particularly given the programme’s PGR classification. Similarly, in another decision, the Authority found that a Shortland Street scene involving two characters being seized, threatened and tied up by a group of soldiers, did not breach the violence standard as the violence was only implied. TVNZ argued that this was the same as the episode complained about in which the violence with Dr Valentine was also implied.
 TVNZ also noted that in Decision No. 1996-029 the Authority considered that Shortland Street was targeted at a relatively sophisticated young adult audience and not intended for younger viewers. Its PGR classification recognised that its content, while more suited for adult audiences, was not necessarily unsuitable for supervised child viewers.
 Accordingly, TVNZ concluded that this episode of Shortland Street would not have offended a significant number of viewers, and declined to uphold the Standard 1 complaint.
 Dissatisfied with TVNZ’s response, Mr Turner referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 Mr Turner maintained that parents should be able to let their children watch television at 7pm, and that Shortland Street had a high viewership among children. Therefore, he said, the time and viewer profile should lead to a lower level of tolerance for violence than for programmes screened after 8.30pm.
 The complainant considered that this episode went beyond its PGR classification, because that allows material not necessarily unsuitable for supervised child viewers. This episode was clearly unsuitable for children, he said, and the pre-broadcast warning did not prepare him for the violence that was depicted.
 Mr Turner contended that TVNZ’s response downplayed what was actually depicted, as it inaccurately described the scenes. He disagreed with the broadcaster that Dr Valentine had not intentionally hit the henchman’s head on a rock. He wrote, “In the version of the show that I saw, the actor portraying Dr Valentine deliberately bashes the other man’s head onto the ground (rock)”. Mr Turner disagreed with TVNZ that the scene was important to the storyline and was not gratuitous, saying, “it served no purpose other than to ‘bash the baddy’ and add a bit more gratuitous violence”.
 The complainant also disagreed that Dr Valentine’s body was not shown in the burning car. He said Dr Valentine was shown sitting in the car with smoke and flames rising about him. Mr Turner agreed that “they didn’t show Dr Valentine waking up and screaming as his flesh turned black and his hair caught fire... but the bottom line is they strongly implied that the actor, an important central character... was burnt alive at 7pm at night”. This was “outrageous viewing” for that time of night, he said, and unsuitable for child viewers even with the guidance of an adult. Mr Turner considered it was unacceptable to portray people being brutalised in this way regardless of the PGR rating and the use of a warning.
 The complainant objected to TVNZ’s argument that parents “have had an opportunity over the years to become familiar with the series”. He had only recently allowed his 11-year-old daughter to watch Shortland Street, he said, and had not seen it before. Not everyone had been following the programme for years, Mr Turner said, and he was not prepared for what he saw in this episode.
 Mr Turner disagreed with TVNZ that the Authority’s previous decisions about violence in Shortland Street applied to this episode. He considered that the fact that the violence may have been “implied” did not make it acceptable. Mr Turner cited a 2003 Millwood Hargrave report which stated that children are more frightened by implied violence than dramatised violence, and can deem merely the consequences of a violent action, in isolation from the violent action itself, to be “violent”. He therefore considered that the argument the violence was “only” implied was spurious.
 Mr Turner concluded that the level of violence portrayed or implied in this episode of Shortland Street was unacceptable and in breach of Standard 1. His main concern, he said, was that parents should be able to let children watch television at 7pm. He considered this episode went too far, and although parents may hold some responsibility for their children’s viewing, “this type of distasteful and gratuitous violence” should be restricted to broadcasts after 8.30pm.
 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.
 When the Authority considers a complaint that alleges a breach of good taste and decency, it is required to take into account the context of the broadcast. On this occasion the relevant contextual factors include:
 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.
 A majority of the Authority (Joanne Morris, Tapu Misa and Diane Musgrave) is of the view that the violence in this episode of Shortland Street was unsuitable for children even if they were supervised by an adult, and therefore the episode should have received a higher classification than PGR. The theme of a main character dying in violent circumstances, following a prolonged chase, was likely to frighten and disturb child viewers. This is particularly because the violence – which included easily accessible weapons such as baseball bats – was realistic in the sense that it could happen in New Zealand. The majority considers that the material in this episode was extreme for the PGR time-band and should have been classified as Adults Only.
 While the violence and Dr Valentine’s death may have been necessary to the storyline, the majority considers that it needed to be presented in a more discreet and implied manner in order to comply with the programme’s rating and the time of broadcast. It acknowledges that the broadcaster used a warning for “violence that may disturb” and “scenes that may not be suitable for a younger audience”, but that does not excuse the fact that the material, and particularly the cumulative effect of the violent scenes, was not acceptable in a PGR timeslot.
 Having reached this conclusion, the majority must consider whether to uphold this complaint as a breach of Standard 1.
 The Authority acknowledges that upholding the Standard 1 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. It acknowledges the importance of section 14 and the values underlying the right to freedom of expression.1 However, “the right of freedom of expression is not an unlimited and unqualified right”.2 The Authority must ensure that, if it is considering upholding this part of the complaint, the restriction on the broadcaster’s right to freedom of expression would be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).
 First, the Authority must assess whether, by upholding this part of the complaint, the limit placed on the broadcaster’s section 14 right would be “prescribed by law”. Parliament has recognised the importance of maintaining standards of good taste and decency in section 4(1)(a) of the Broadcasting Act 1989, which states:
(1) Every broadcaster is responsible for maintaining in its programmes and their presentation, standards that are consistent with –
(a) The observance of good taste and decency.
 Further, the Codes of Broadcasting Practice have been developed in conjunction with broadcasters and approved by the Authority. The requirement in Standard 1 that broadcasters must consider current norms of decency and taste in language and behaviour, bearing in mind the broadcast’s context, is, in the Authority’s view, precisely what was intended by Parliament when it enacted the Broadcasting Act. For these reasons, the Authority considers that upholding a complaint under Standard 1 (good taste and decency) would be prescribed by law.
 Second, the majority must consider whether upholding this part of the complaint would be a justified limitation on the right to freedom of expression. In the Authority’s view, the good taste and decency standard exists to protect primarily against sexual content, violent material, and language that is likely to offend a significant number of viewers in the context in which it was shown. As Standard 1 requires consideration of contextual factors, such as the time of broadcast, and the use of warnings, it also assists in preserving standards related to, for example, programme classification and the protection of children. Accordingly, the Authority considers that upholding a complaint about violent material under the good taste and decency standard would place a justified limitation on a broadcaster’s right to freedom of expression.
 The majority must now consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 1 on this occasion. Viewers of PGR-rated programmes are entitled to expect that those programmes, while they may contain material more suited for a mature audience, will not contain material that might be unsuitable for child viewers even if they are supervised by an adult. In this case, the majority has found that the scenes of violence in Shortland Street were likely to disturb children, who are part of its audience, and were gratuitous taking into account contextual factors, particularly the programme’s classification and the time that it was broadcast.
 Upholding a breach of the good taste and decency standard on this occasion would ensure that broadcasters take care to only broadcast material that is justified by contextual factors and consistent with its classification, especially during children’s normally accepted viewing times. In this respect, upholding this complaint clearly promotes the objective of Standard 1 (as outlined in paragraph  above).
 In these circumstances, the majority finds that upholding this part of the complaint places a justified and reasonable limit on TVNZ’s freedom of expression. It therefore upholds the complaint that the violence in this episode of Shortland Street breached Standard 1.
 A minority of the Authority (Paul France) would not uphold the complaint that the episode breached standards of good taste and decency. The minority considers that the scenes of the chase, assault and presumed murder were handled with obvious care and, while there was a strong dramatic effect, the violence was not explicit or gratuitous.
For the above reasons a majority of the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an episode of Shortland Street on 2 September 2008 breached Standard 1 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. Given that the decision was not unanimous, it does not intend to impose an order on this occasion. The majority is satisfied that its decision will serve as a reminder to TVNZ to exercise special care and discretion when including violent material in PGR programmes screened at 7pm.
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. Mark Turner’s formal complaint – 2 September 2008
2. TVNZ’s response to the formal complaint – 1 October 2008
3. Mr Turner’s referral to the Authority – 7 October 2008
4. TVNZ’s response to the Authority – 7 November 2008
1See Decision No. 2008-040
2P v D and Independent News Auckland Ltd  2 NZLR 591, at 599, per Nicholson J