BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
3 News – item reported that a man had been found guilty of murdering another man then eating parts of the murdered man’s body – provided details of the man's cannibalistic act – allegedly in breach of good taste and decency, programme classification, children’s interests and violence

Findings
Standard 10 (violence) – item contained graphic and violent details of a murder and cannibalism – required a specific warning – upheld

Standard 9 (children’s interests) – broadcaster failed to adequately consider the interests of child viewers – upheld

Standard 7 (programme classification) – standard not applicable – not upheld

Standard 1 (good taste and decency) – subsumed into consideration of children's interests and violence

No Order

This headnote does not form part of the decision.

Broadcast

[1] An item on 3 News, broadcast on TV3 at 6pm on Saturday 18 October 2008, reported on the conviction in England of Anthony Morley for the murder of Damien Oldfield.

[2] The news presenter introduced the item by stating:

A British chef and former Mr Gay UK has been found guilty of murdering his boyfriend and then eating parts of his flesh. Anthony Morley stabbed Damien Oldfield and carved flesh from his thigh before eating it. SKY’s Fraser Maud reports.

[3] SKY's report included the following:

Anthony Morley, here on a TV game show, a trained chef and the first winner of Mr Gay UK and now a convicted murderer. It was in April this year that Morley invited 33-year-old Damien Oldfield to his home in Leeds, cooked him a meal, watched a film together, went separately to bed. Morley, a man confused by his sexuality, woke up to find Mr Oldfield carrying out a sex act on him. He then went to the kitchen, had a drink, collected two knives and returned to the bedroom. It was then that Morley carried out what the prosecution here referred to as a terrible, horrific and bizarre murder. After cutting David Oldfield’s throat, he then stabbed him more than thirty times using both knives, then cut parts of Oldfield’s flesh from his body, took them to the kitchen, seasoned them and fried them in olive oil. Police forensic experts later found traces of Morley’s saliva on parts of that cooked flesh...

Complaint

[4] Joy Knight made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item breached standards of good taste and decency, programme classification, children’s interests and violence.

[5] The complainant argued "this item should not have been chosen to come into our lounge" and stated that her children got "upset and had nightmares after hearing the programme". She said that the item was "on before we knew it was going to be offensive" and that its violent content failed to protect child viewers.

Standards

[6] Standards 1, 7, 9 and 10 and guidelines 1a, 1b, 7e and 10g of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These 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.

Guidelines

1a   Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme’s classification (see Appendix 1). The examples are not exhaustive.

1b   Broadcasters should consider - and if appropriate require - the use of on-air visual and verbal warnings when programmes contain violent material, material of a sexual nature, coarse language or other content likely to disturb children or offend a significant number of adult viewers. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.

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.

Guideline 7e

Broadcasters should consider the use of warnings where content is likely to offend or disturb a significant proportion of the audience.

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.

Standard 10 Violence

In the preparation and presentation of programmes, broadcasters are required to exercise care and discretion when dealing with the issue of violence.

Guideline 10g

News, current affairs and factual programmes will, by their nature, often contain violent, disturbing or alarming material. Broadcasters should not falsify, by omission, a world in which much violence and brutality occurs. When such scenes are necessarily included to serve the public interest, the fact that violence has painful and bloody consequences should be made clear. However, editors and producers must use judgement and discretion in deciding the degree of graphic detail to be included in news programmes when children are likely to be watching. Warnings within news programmes must be used as appropriate.

Broadcaster's Response to the Complainant

[7] With respect to good taste and decency, TVWorks argued that to constitute a breach of this standard, the broadcast material must be unacceptable to a significant number of viewers in the context in which it was shown. It noted that the story formed part of a news programme that had an adult target audience and which was broadcast at the same time each day.

[8] The broadcaster pointed out that the Authority had previously accepted that, although news, current affairs and other factual programmes screen prior to the 8.30pm watershed, they were unlikely to be watched by unsupervised children. It also noted that news and current affairs programmes are, due to their distinct nature, unclassified. TVWorks contended the "reporting of this particular crime was a matter of legitimate public interest and a recount of the salient details of the offending was an inherent part of that report". The impact of the facts could only be muted to a limited degree without compromising the accuracy of the report, it said.

[9] TVWorks noted the item did not contain any visual material representing the violent nature of the crime and that it "merely reported the description as stated in court". It declined to uphold the complaint that the item breached Standard 1.

[10] Turning to Standard 7, the broadcaster found that the programme classification standard had no application in the circumstances, as news and current affairs programmes are unclassified.

[11] Looking at Standard 9 (children’s interests), TVWorks stated that "for the reasons discussed under Standard 1, the committee does not believe a warning was warranted because there were several other indicators about the type of information that was likely to have been in the report". It stated the "other indicators" were the graphic displayed at the top of the story titled "Cannibal Chef" and the general account provided by the newsreader before further detail was given to viewers. It also noted that the more violent details of the crime were placed towards the end of the story "providing plenty of time to choose alternative viewing if parents or caregivers so wished".

[12] The broadcaster contended that parents should generally expect a certain degree of sophisticated or challenging material in news programmes. It declined to uphold the complaint that the item breached the children’s interests standard.

[13] In relation to Standard 10 (violence), TVWorks pointed out that the item did not contain any visual depiction of the crime and the verbal descriptions related to events that actually occurred. It considered the violence contained in the item was indirect rather than explicit and was not gratuitous in the context of the item. The broadcaster declined to uphold the complaint.

Referral to the Authority

[14] Dissatisfied with TVWorks' response, Ms Knight referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.The complainant maintained the item contained unnecessary detail, that children were likely to be watching and that it should have been preceded by a warning. She also contended that there "was no legitimate public interest" in the item as argued by the broadcaster.

Authority's Determination

[15] 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 10 (violence)

[16] Standard 10 requires broadcasters to exercise care and discretion when dealing with the issue of violence.

[17] TVWorks argued that the item did not require a warning and that viewers were given a number of "indicators" that gave them sufficient time to choose alternative viewing. In the Authority's view, the item contained gruesome and graphic details of a murder and subsequent act of cannibalism which were inadequately signposted to viewers. It considers that the graphic displayed at the top of the story – titled "Cannibal Chef" – was insufficient to warn viewers of the grisly details, which the Authority considers would have been disturbing to some adults as well as children. It notes that some of the disturbing content was in the introduction to the story and would have been difficult to avoid without a warning. In the Authority's view, the verbal description of the violence was sufficiently graphic to require a specific warning advising viewers that the report's content may disturb. Accordingly, the Authority finds the broadcaster did not use sufficient care and discretion when dealing with the issue of violence.

[18] Having reached this conclusion, the Authority must consider whether to uphold this complaint as a breach of Standard 10.

[19] The Authority acknowledges that upholding the Standard 10 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 expression¹. 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).

[20] 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 in relation to the portrayal of violence in section 21(1)(e)(ii) of the Broadcasting Act 1989, which states:

21(1) The functions of the Authority shall be –

(e) To encourage the development and observance by broadcasters of codes of broadcasting practice appropriate to the type of broadcasting undertaken by such broadcasters, in relation to –

(ii) The portrayal of violence

[21] Further, the Codes of Broadcasting Practice have been developed in conjunction with broadcasters and approved by the Authority. The requirement in Standard 10 that broadcasters must exercise care and discretion when dealing with the issue of violence, is, in the Authority's view, what was specifically intended by Parliament when it enacted the Broadcasting Act. For these reasons, the Authority considers that upholding a complaint under Standard 10 (violence) would be prescribed by law.

[22] Second, the Authority 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 violence standard exists to ensure that broadcasters use care and discretion to exclude unsuitable violent material and to promote the use of warnings where necessary to protect viewers - particularly child viewers. Accordingly, the Authority considers that upholding a complaint about violent material under Standard 10 would place a justified limitation on a broadcaster's right to freedom of expression.

[23] The Authority must now consider whether it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of Standard 10 on this occasion. The Authority has found that the item should have been preceded by a specific warning due to its graphic descriptions of violence. Upholding a breach of the violence standard on this occasion would remind broadcasters to exercise sufficient care and discretion when dealing with the issue of violence. In this respect, upholding this complaint clearly promotes the objective of Standard 10 (as outlined in paragraph [22] above).

[24] In these circumstances, the Authority finds that upholding this part of the complaint would be a justified and reasonable limit on TVWorks’ freedom of expression. It therefore upholds the complaint that the broadcaster’s failure to provide a warning for violent content in the news item complained about breached Standard 10.

Standard 9 (children’s interests)

[25] Standard 9 requires broadcasters, in the preparation and presentation of programmes, to consider the interests of child viewers during their normally accepted viewing times, usually up to 8.30pm.

[26] On this occasion, the item formed part of the 6pm news on TV3 and was broadcast during children’s normally accepted viewing times. As seen above in paragraph [6], guideline 10g specifically refers to editors and producers using their judgment and discretion in deciding the degree of graphic detail to be included in news programmes when children are likely to be watching, and requires that warnings within news programmes must be used as appropriate.

[27] The Authority found that the item breached Standard 10 because it was not preceded by a specific warning. In these circumstances, parents and caregivers were not in a position to decide whether any children who were watching should have continued to do so.

[28] Accordingly, the Authority finds that the broadcaster did not adequately consider the interests of child viewers by failing to include a warning before the item.

[29] The Authority acknowledges that upholding the children’s interests complaint would place a limit on the broadcaster’s right to freedom of expression.

[30] 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.

[31] 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 adequately consider the interests of child viewers when deciding whether to employ the use of warnings for news items containing violent 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 7 (programme classification)

[32] The Authority agrees with the broadcaster that the programme classification standard has no application on this occasion, as news and current affairs programmes are, because of their distinct nature, unclassified. Accordingly, the Authority declines to uphold the complaint that the item breached Standard 7.

Standard 1 (good taste and decency)

[33] The Authority considers that the complainant’s concerns under Standard 1 have been adequately addressed under its consideration of Standards 9 and 10. In these circumstances, the Authority subsumes its consideration of good taste and decency into its consideration of those standards.

For the above reasons the Authority upholds the complaint that a broadcast of 3 News by TVWorks Ltd on 18 October 2008 breached Standards 9 and 10 of the Free-to-Air Television Code of Broadcasting Practice.

[34] Having upheld the complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to do so on this occasion. The Authority considers the publication of this decision serves as an adequate reminder to broadcasters that warnings should be used when news items contain material of a graphic and violent nature.

Signed for and on behalf of the Authority

Joanne Morris
Chair
3 March 2009

Appendix

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

1.  Joy Knight's formal complaint – 31 October 2008
2. TVWorks' response to the formal complaint – 2 December 2008
3. Ms Knight's referral to the Authority – 12 December 2008
4. TVWorks' response to the Authority – 22 December 2008

¹See Decision 2008-040

²P v D and Independent News Auckland Ltd [2000] 2 NZLR 591, at 599, per Nicholson J