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Simmons and 34 Others and CanWest TVWorks Ltd - 2006-022

Members

  • Joanne Morris (Chair)
  • Paul France
  • Tapu Misa
  • Diane Musgrave

Complainants

  • Christopher Simmons of Manukau City
  • Gerard Duignan and Julia Havell of Christchurch
  • Lenore Hayes of Christchurch
  • J J Devoy of Hastings
  • Stephen O'Leary of Rotorua
  • S G Joyce of Nelson
  • Brendan Malone on behalf of Family Life International (New Zealand), Auckland
  • Elizabeth Ann Legg of Auckland
  • Rod Orange of Wellington
  • Ray Corby of Hamilton
  • Deacon Michael J Ryan on behalf of the Catholic Diocese of Hamilton, Diaconate Office
  • Mike Baird of Hamilton
  • Ronald D'Souza of Auckland
  • Mary Pepping of Auckland
  • Garnet Milne of Wanganui
  • Merlyn Calvert of Auckland
  • Kevin O'Connor of Hamilton
  • Michael Burrowes on behalf of Burrowes & Company, Barristers & Solicitors, Wgtn
  • Fr Peter Fitzgibbon on behalf of Holy Cross Parish of Miramar, Wellington
  • M Findlay of Auckland
  • Graham McKee of Christchurch
  • Truus van Osta of Pahiatua
  • Marcienne Forsman of Auckland
  • Rev P G Holland of Te Puke
  • P A Brathwaite of Christchurch
  • Michael Gibson of Wellington
  • Donna Marie Hickman on behalf of Ian McCulloch, Cochrane & Co, Baristers, Wgtn
  • Peter Kitchen of Whangarei
  • Gerald Barker of Christchurch
  • Bishop Denis Browne on behalf of the New Zealand Catholic Bishops Conference, Hamil
  • Josephine and Ian Bailey of Woodville
  • Derrick McMurchy of Auckland
  • D L Gibbs of Tauranga
  • D G Matheson of Auckland
  • P B and A-M Richardson of Ngaruawahia

Dated

28th June 2006

Number

2006-022

Programme

South Park

Channel/Station

C4

Broadcaster

CanWest TVWorks Ltd


An appeal against this decision by Bishop Denis Browne was dismissed in the High Court: CIV 2006-485-1611  PDF109.85 KB


Complaint under section 8(1)(a) of the Broadcasting Act 1989
South Park – “Bloody Mary” episode – portrayed statue of Virgin Mary menstruating – menstrual blood sprayed on faces of characters including cardinal and Pope – allegedly in breach of good taste and decency, law and order, privacy, balance, accuracy, fairness (humiliation and denigration), programme classification, children’s interests, violence

Findings
Standard 2 (law and order), standard 3 (privacy), standard 4 (balance), standard 5 (accuracy), guideline 6(f) (humiliation), standard 8 (programme information), standard 9 (children’s interests), standard 10 (violence) – no application to broadcast – not upheld

Standard 1 (good taste and decency) – content of programme did not breach standard in light of contextual factors – no breach of standard simply because programme offensive to Catholic religious values – not upheld

Standard 6 (fairness) and guideline 6(g) (denigration) – programme was legitimate satire within meaning of standard – threshold aligned to vitriol or hate speech – lacked respect for Catholic icons and practices but did not amount to attack on Catholic Church or Catholics – not upheld

This headnote does not form part of the decision


Broadcast

[1] South Park is an animated satirical programme which highlights social, political and other current issues in a controversial and provocative manner. On 22 February 2006, at 9:30pm, C4 broadcast an episode of South Park entitled “Bloody Mary”. The episode was originally planned to be screened in May, but was brought forward following considerable public controversy.

[2] In this episode, one of the characters, Randy, is arrested for driving while drunk, and is made to attend Alcoholics Anonymous meetings. There, Randy is told that alcoholism is a disease, that he is powerless to control his drinking, and that only submitting to a higher power (God) can help him stop.

[3] Following the meeting, Randy succumbs to his disease and drinks more heavily than ever, until he sees a news story on television about a statue of the Virgin Mary which is apparently bleeding, as the reporter puts it, “out her ass”. A cardinal visits the statue, is showered in blood (accompanied by a “farting” sound), and declares the bleeding to be a miracle. Randy rushes to see the statue, hoping that he will be cured. When Randy approaches the statue, he too is showered in blood, and he declares himself “cured”.

[4] Later, when Randy is attending an AA meeting, having been sober for five days, another news report is broadcast, showing footage of the Pope visiting the statue. The Pope is shown peering at the statue from close range, whereupon he too is showered in blood, again with the same sound effects. The news item then reports that the Pope had declared the statue not to be a miracle. The reporter said:

Having investigated closely, the Pope determined that the blood was not coming from the Virgin Mary’s ass, but rather, from her vagina. And the Pope said, quote, “A chick bleeding out her vagina is no miracle. Chicks bleed out their vaginas all the time.”

[5] At this point, Randy realises he could not have been miraculously cured. He reverts to drinking heavily, along with the other AA members, before his son points out that if there was no miraculous intervention, it must have been his own willpower that had kept him sober for five days.

Complaints


Introductory note

[6] Due to the large number of complaints received by the Authority in respect of this programme, it is not practical for this decision to canvass the arguments of each individual complainant, as is the Authority’s usual practice.

[7] In reviewing the correspondence from each complainant, however, the Authority notes that the arguments raised by the majority of the complainants clearly fall into defined categories. It has accordingly summarised those arguments below, and has attributed submissions to specific complainants only if the point being made is particularly apposite, or falls outside the scope of the general arguments made.

Complaints

[8] The 35 complainants all lodged formal complaints with CanWest TVWorks Ltd, the broadcaster. They outlined the following distinct heads of complaint:

that the programme breached Standard 1 (good taste and decency) because of its disrespectful treatment of the Virgin Mary and other Catholic icons and imagery (including the Pope, a cardinal, and the practice of making the sign of the cross) in the context of the spraying menstrual blood

that the portrayal of the spraying menstrual blood was offensive, regardless of the religious context, and breached standards of good taste and decency

that the programme breached Standard 2 (law and order) because it contravened the blasphemous libel provisions of the Crimes Act 1961

that the programme breached Standard 3 (privacy) in that it breached the Virgin Mary’s privacy

that the programme breached Standard 4 (balance)

that the programme breached Standard 5 (accuracy)

that the programme breached Standard 6 (fairness) and guideline 6(f) because it humiliated and exploited Catholics and alcoholics

that the programme breached Standard 6 and guideline 6(g) because it discriminated against and denigrated Catholics, all Christians, Jews, Muslims, women and alcoholics

that the cartoon was inappropriate for children and breached Standard 9 (children’s interests)

that the programme breached Standard 10 (violence).

Good taste and decency

[9] A number of the complainants complained that the broadcast breached standards of good taste and decency in the way that it portrayed and described the statue of the Virgin Mary’s “menstruation”.

[10] In essence, these complainants considered that the representation of the menstrual blood spurting from the statue onto the faces of the characters in the show, with accompanying sound effects, was offensive and indecent.

[11] Many complainants also considered that the programme breached standards of good taste and decency in the way that it demeaned icons and practices venerated by Catholics.

[12] The primary focus of complainants’ concerns in this regard was the allegedly insulting and disrespectful portrayal of the Virgin Mary, by showing a statue of her showering characters – including the Pope and a cardinal – with menstrual blood. Complainants variously described this part of the programme as:

  • “derisive, outrageous and beyond all acceptable standards of decency and good taste”
  • “ridicule and obscenity”
  • “blasphemy, profanity, degradation, debasement, offensiveness and … demeaning and discriminating to sacred or divine religious figures”
  • “vulgar, tasteless and demeaning to all humans”
  • “a vile insult to the Mother of Our Lord Jesus Christ and [demonstrating] a total disregard of standards of good taste and decency”.

[13] Other aspects of the programme that complainants considered unacceptable included:

  • the priest dipping his finger in the menstrual blood and making the sign of the cross on a pilgrim
  • the reference to the Virgin Mary as “bleeding out her ass”
  • the Pope’s reference to the Virgin Mary as a “chick”, especially in the context of the statement that “a chick bleeding out her vagina is no miracle. Chicks bleed out their vaginas all the time.”

[14] The complainants emphasised the degree of offence that these parts of the programme caused to Catholics and Christians generally.

[15] One complainant (Donna Marie Hickman) argued that as the episode was unacceptable to a significant number of viewers, it must have breached standards of good taste and decency. In her view, the programme contained sexual or physical contact of a degrading, dehumanising or demeaning nature, as well as violence, sexual material and offensive language, and thus met the threshold for a breach of the good taste and decency standard that, she submitted, had been established by the Authority in Decision No. 2005-128 concerning Popetown. Neither contextual factors nor the target audience’s expectation could mitigate this conclusion, she argued.

[16] The New Zealand Catholic Bishops Conference (NZCBC) argued that the crassness of the depiction was “self evident”. It further argued that the wider context in which the programme was shown – including the controversy surrounding the publication of the cartoons depicting the Prophet Mohammed in newspapers around the world and the controversy in New Zealand over the recent Popetown series – aggravated the offence.

[17] Rod Orange argued that the programme contained “content likely to disturb a significant number of adult viewers”, pursuant to guideline 1(a). He submitted that women were likely to be disturbed by the “caricaturing of menstruation”, members of Alcoholics Anonymous would be disturbed by the programme’s dismissal of their reliance on a higher power, and Christians and Muslims alike would have been disturbed by the programme’s dismissal of their belief in God and the “insulting treatment of the Virgin Mary”.

[18] One complainant, Michael Gibson, made his complaint not under the usual s4(1)(e) of the Broadcasting Act 1989 (which refers to broadcasters’ obligation to meet the standards set out in the approved codes of broadcasting practice, including the Free-to-Air Television Code), but instead under s4(1)(a). Mr Gibson stated his referral was made under this section as he considered the statutory obligation on broadcasters to observe good taste and decency in s4(1)(a) placed a higher obligation on them than the good taste and decency requirement in Standard 1 of the Free-to-Air Television Code.

Fairness – denigration and discrimination against Catholics

[19] The other key argument raised by the majority of the complainants was that the programme discriminated against and denigrated Catholics in its portrayal of Catholic icons and practices.

[20] As with the good taste and decency complaints, most of the complainants focused on the portrayal of the Virgin Mary, arguing that the portrayal of the statue menstruating and spraying blood over people – as well as the references to her bleeding “out her ass” and “from her vagina” – were denigratory. The central message of almost all the complaints was reflected in the submission from the Catholic Diocese of Hamilton:

The reason that Catholics take offence at the South Park episode is that the Virgin Mary is the historical birth mother of Jesus; she is the pre-eminent member of the communion of saints and her importance is expressed throughout the world and the life of the Church in doctrine, liturgy, piety and theology. She is regarded as the “Mother of God”. …

To deride her can be seen by Christians (a significant percentage of the population), as also deriding the divinity of Jesus Christ and their Faith as a whole. …

In view of these beliefs, to show Mary’s menstrual blood spurting over the Pope in a cartoon is a level of denigration that appears to be calculated to the extreme.

[21] Other complainants variously described the programme as:

  • “blatant and malicious ridicule”
  • subjecting Mary to “gross dishonour”
  • “belittl[ing] and reduc[ing] the sacred to something for cheap laughs”
  • “attempt[ing] to discredit … Roman Catholics for their devotion to the Virgin Mary, and … criticis[ing] Christians for their widespread use of religious items and icons”
  • “depict[ing Mary] in a despicable and irreverent manner”.

[22] The NZCBC stated that the broadcast had caused pain and great offence not only to the Catholic community, but also to members of other Christian religions, Muslims, and many non-Christians. As with the Catholic Diocese of Hamilton, it encapsulated the views of the majority of other complainants, in stating that the programme amounted to a:

… deliberate attack on the culture, theology, beliefs, dignity and right to respect of the Catholic community.

[23] The Catholic Diocese of Hamilton explained why it took such offence at the programme from a theological perspective:

We believe the programme encourages gross degrading of Catholic beliefs about Mary and of women in general. The chief point made by the cartoon is the Pope declaring no miracle (cure of alcoholism) has happened after being sprayed by menstrual blood. The Pope’s declaration of no miracle in South Park is linked to Mary’s menstrual blood. Because the Pope made the declaration, it has authority. No miracles can come from Mary’s menstrual cycle, and her ability to give birth.

The Catholic Church has taught for 2000 years that Jesus’ birth had a divine origin; otherwise, the resurrection of Jesus is called into question. The South Park episode has the Papacy, the defender of Catholic teaching, and the Pope, being humiliated and declaring no miracle has happened.

The humiliation of the Pope in these particular areas is designed to denigrate what millions of Catholics instinctively and theologically believe about Mary and clearly, breaches [guideline 6(g)].

[24] Donna Marie Hickman referred to the Authority’s test for denigration – whether a broadcast blackens the reputation of a class of people – and gave a number of examples as to how she considered the programme had done that:

  • the title of the programme was “Bloody Mary” which implied that the Virgin Mary was sexual in nature rather than miraculous
  • the Virgin Mary is depicted as nothing more than an ordinary woman, rather than miraculous
  • the programme suggested Catholics used satanic blood rituals
  • links were drawn between the Church and cults.

Fairness – denigration and discrimination against other groups

[25] As well as alleging denigration of Catholics, complainants also alleged that the programme denigrated:

  • women generally, in light of the portrayal of menstruation
  • other Christian denominations, Jews and Muslims, as they also revere Mary
  • alcoholics and Alcoholics Anonymous. A number of complainants referred to the important work carried out in the community by Alcoholics Anonymous, and referred to the genuine difficulties faced by those with a substance addiction problem.

Other standards raised

[26] Other arguments raised by complainants included:

  • the programme was contrary to the New Zealand Bill of Rights Act 1990, the Crimes Act 1961, and could lead to “unrest” and violence (Standard 2)
  • the programme breached the privacy of the Virgin Mary by showing her menstruating (Standard 3)
  • the programme portrayed religion and discussed religious issues in an unbalanced way (Standard 4)
  • the programme inaccurately portrayed religious practices (Standard 5)
  • the programme humiliated Catholics, Christians, all people who believe in a higher power, alcoholics, people who abstain from alcohol due to addiction issues, women, and individuals who watched the programme (Standard 6 and guideline 6(f))
  • the programme deceived or disadvantaged viewers (Standard 8)
  • the programme was contrary to children’s interests (Standard 9)
  • the violence in the programme was inappropriate (Standard 10)
  • CanWest breached broadcasting standards by bringing forward the screening date.

Standards

[27] The only standards not cited by complainants were Standard 7 (programme classification) and Standard 11 (liquor). Rather than setting out the nine cited standards and the relevant guidelines in the body of this decision, the relevant parts of the Free-to-Air Television Code of Broadcasting Practice are annexed to this decision as Appendix 1.

Broadcaster's Response to the Complainant

[28] CanWest TVWorks Ltd declined to uphold the complaints, releasing a single decision covering all of the complaints it had received. A copy of CanWest’s full decision is annexed to this determination as Appendix 2.

CanWest started its decision by stating that:

  • South Park is a well-known adult cartoon that has screened in New Zealand for nine years. In the time that South Park has been on air the show has poked fun at most major religions, nationalities and authority figures. The religious groups it has satirised include Christians, Mormons and Jews.
Standard 1 (Good taste and decency)

[30] CanWest argued that to be in breach of Standard 1, a programme must be unacceptable to a significant number of viewers in the context in which it was shown. The relevant contextual factors, it argued, included:

  • the time of screening at 9:30pm, an hour after the AO watershed, ensuring a more mature audience
  • the use of warnings prior to the programme
  • the AO rating
  • the audience’s expectations
  • the 15 to 29-year-old C4 target audience
  • South Park’s established brand of humour.

[31] In light of these contextual factors, CanWest concluded that the content of the programme would not have come as a surprise to a viewer familiar with South Park. It also noted the fact that prior media coverage had created a clear expectation of the programme’s likely content, and in light of all these factors concluded that Standard 1 had not been breached.

Standard 2 (Law and order)

[32] CanWest referred to previous Authority decisions which, it submitted, established that the intent of Standard 2 is to prohibit broadcasters from actively encouraging viewers to break the law. It stated that the programme did not do this.

[33] In relation to the argument that this programme amounted to blasphemous libel within the terms of the Crimes Act 1961, it noted that this was a matter for the Attorney-General, not one of broadcasting standards.

Standard 6 (Denigration)

[34] CanWest noted that the primary concern expressed about the programme was that it denigrated the Catholic Church and its members, the Virgin Mary, and women generally.

[35] First, CanWest stated that the programme did not intend to offend, but instead to question society’s accepted behaviours and beliefs. It stated that the programme was “overt satire that could not be mistaken for factual representation”.

[36] CanWest then went on to characterise satire as “a mode of challenging accepted notions by making them seem ridiculous” (taken from The Western Intellectual Tradition from Leonardo to Hegel, by Jacob Bronowski and Bruce Mazlish) and stated that satire has as its chief instruments “irony, sarcasm, invective, wit and humour” (from the Wordsworth Concise English Dictionary).

[37] One of the features of satirical writing, it noted, was the use of disrespectful and offensive language and images to ridicule prevailing beliefs, and to provoke thought and laughter. This provocation was a means to initiate debate and facilitate reflection on the subject matter. Accordingly, CanWest concluded, South Park was legitimate satire.

[38] In light of this conclusion, CanWest then concluded that the programme did not reach the high threshold required for denigration, as it did not blacken the reputation of or encourage discrimination against the Catholic Church and its members, the Virgin Mary, or women generally. It noted that the programme contained neither vitriol nor hate speech. CanWest addressed a number of the specific allegations of denigration:

The Virgin Mary bleeding

[39] CanWest noted that the bleeding statue was intended to poke fun at the belief held by some people that religious statues can bleed, for example by crying tears of blood. It noted that no genitalia or anatomical details were shown.

The portrayal of menstruation

[40] CanWest argued that the programme did not suggest that women were inferior because they menstruated.

The spraying of the blood

[41] These scenes were intended to satirise the belief that holy statues can miraculously bleed or weep. Regarding the language used by the Pope and cardinal, CanWest stated that it was “overt fiction” and no adult viewer would believe that they would say such a thing. It also stated that those with an important and influential public role often find themselves being satirised.

The comments about Alcoholics Anonymous

[42] This programme looked at the issue of free will, CanWest said, and satirised the weakness of people who ascribe their actions to a higher power over which they have no control. CanWest argued that this was a legitimate satirical topic.

The use of the title “Bloody Mary”

[43] The title, CanWest wrote, was intended to refer to the well-known alcoholic drink of the same name, and was a satirical word-play on Randy’s drinking.

The decision to screen the programme earlier

[44] Finally, CanWest noted that in light of the high level of public debate, there could be no valid public discussion about the programme without the whole programme being screened.

Referrals to the Authority

[45] The complainants were dissatisfied with CanWest’s response, and referred their complaints to the Authority.

[46] Most of the complainants reiterated the points they had made in their original complaints. A number of complainants made additional submissions, and these are discussed below.

The Application of the New Zealand Bill of Rights Act 1990

[47] The NZCBC noted that the Authority’s practice was to determine the application of the broadcasting codes with reference to sections 4, 5, 6 and 14 of the New Zealand Bill of Rights Act 1990.

[48] It considered that the approach of the Authority was to give “great weight” to section 14 of the Act (which protects freedom of expression), with particular reference to section 5 of the Act (which states that the freedoms contained in the Bill of Rights can be subject only to reasonable limits that can be demonstrably justified in a free and democratic society). The complainant submitted that this approach was incorrect in light of the decision of the High Court in TV3 Network Services v Holt.1

[49] In Holt, the NZCBC noted, the judge held that the Authority was not required to undertake a section 5 analysis – whether any proposed limitation on freedom of expression is reasonable – when applying the broadcasting standards to a particular complaint.

[50] The NZCBC considered that the clear inference from the judge’s decision was that in terms of the interface between the Bill of Rights Act and the standards, the Authority should address the validity of the standards. If the standards survived scrutiny, the complainant wrote, it was the responsibility of the Authority to apply the standards to the complaint before it; it could not “avoid that responsibility” by referral to the Bill of Rights Act.

Procedural matters

[51] The NZCBC suggested that the Authority should see the determination of this complaint as an opportunity to “give a clear indication of where the line is to be drawn when there are issues of calculated insult, denigration, or offensiveness on the part of the media”. It suggested that if the Authority decided to use the occasion to draw this line, the issue should be dealt with by way of oral submission.

[52] Alternatively, the NZCBC suggested that if the Authority chose not to “draw the line” and establish a precedent, it should promulgate guidelines under s21 of the Broadcasting Act.

Good taste and decency

[53] Many of the complainants emphasised the points made in their original complaints, and reiterated that the programme had caused a high level of offence and consternation. A submission from Derrick McMurchy summed up the feelings expressed in many of the submissions:

Christians believe the Virgin Mary was the mother of Jesus Christ who, simply put, is the human incarnation of God on earth. As such, Mary is iconic as the bravest and most decent human to have ever lived. To Catholics she is particularly revered as our Holy Mother who is deeply concerned about suffering in the world. The Christian belief is that Mary is so beloved of God that she is the only human to have ever been spared death and decay and was actually assumed into heaven. All pretty out-there stuff to a non-believer but widely accepted in faith by believing Christians. The gentle goodness of what we believe Mary to represent was insulted and ridiculed by this episode.

[54] Several submissions highlighted what they perceived to be an inconsistency in CanWest’s decision. They argued that it was inconsistent for CanWest on the one hand to maintain that C4 targets the 15-29 demographic, while on the other saying that South Park was essentially an adult programme.

[55] Complainants also attempted to refute CanWest’s reliance on contextual factors, on the basis that such reliance would mean anything at all could be broadcast. It was argued that:

  • The contextual factors relied on by CanWest could not be a “disinfectant” for the programme. It is the content that dictates whether a programme breaches standards of good taste and decency, not the target audience, time of broadcast, or other contextual factors.
  • The broadcaster should not be able to rely on the fact that the programme was well-recognised by its audience as provocative and challenging. Offensive or denigratory behaviour cannot be excused simply because a broadcaster has telegraphed its intention to broadcast the material.
  • The expectations of the target audience were not relevant, as bowing to such expectations could justify the broadcast of child pornography if there was a willing audience.

[56] Complainants also argued that:

  • CanWest defined standards of good taste and decency by what is “unacceptable to a significant number of viewers”. CanWest was on notice, they said, that a significant number of viewers found this portrayal unacceptable, and thus the standard must have been breached.
  • In acknowledging the degree of offence caused, and stating that the programme would not be re-broadcast, CanWest had effectively admitted that the programme was unacceptable. Peter Kitchen enclosed an article from Whangarei newspaper The Northern Advocate, and argued:

    • In the enclosed article from The Northern Advocate Mr Friesen, Chief Executive of C4 said “We have detected a shift in the public’s perspective on matters of a religious nature” and he said “C4 would probably have not screened the episode knowing what it did now about the amount of offence taken”. … Mr Friesen is stating in effect “Whoops, we misjudged the standard, we are sorry”. The broadcasting standards require the broadcaster to make the judgment before the programme is aired otherwise any programme no matter how offensive could be aired and then apologised for. … C4 has made the mistake of assuming that nine years of screening South Park means nine years of unchanging values in New Zealand society.
  • While the right to free speech in the Bill of Rights Act was important there were limits to this right. Reverend P G Holland argued for the “freedom of responsible speech”, noting that a fine balance was required. Father Peter Fitzgibbon suggested that CanWest was adopting a “licentious interpretation” of the Act. D G Matheson warned against a “mantra-like” reliance on the free speech provisions, at the expense of other considerations.

Guideline 6(g) (Denigration)

[57] As with good taste and decency, the majority of complainants simply reiterated their view that the programme had denigrated several groups, including Catholics, Christians, Jews, Muslims, alcoholics and women.

[58] Others sought to refute CanWest’s reliance on guideline 6(g), which states that the prohibition against denigration is not intended to prevent the broadcast of material offered “in the legitimate context of a … satirical work”.

[59] These complainants argued that the episode did not qualify as satire, as satire by its very nature was intended to expose or discourage “vice or folly”, and has a “serious moral purpose”; satire had to expose “error or an evil”. South Park, they argued, engaged in “blatant and malicious ridicule” of something that was essentially good and worthy of reverence, and thus could not be considered satire in the true sense.

[60] Others argued that the satire has simply gone too far; the NZCBC stated that “many in the Catholic community would characterise the programme as hateful and vitriolic”.

Other issues

[61] Complainants also made submissions about the application of the other standards referred to in paragraph [26] above.

Authority's Determination

[62] The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in Appendix 3.

Procedural matters

The New Zealand Bill of Rights Act 1990

[63] In its referral, the NZCBC argued that the Authority’s generally adopted approach to the application of the Bill of Rights Act was wrong in law. The NZCBC argued that the Authority should properly follow the reasoning in the Holt decision, discussed above at paragraph [49].

[64] The Authority has recently determined this same issue, in Decision No. 2005-112. In light of the public interest in the present case, the Authority repeats in full its reasoning.

[65] Section 5 of the Bill of Rights Act states:

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[66] In Holt, Hansen J observed that section 5 did not apply to the Authority’s consideration of each specific complaint. The Authority was not therefore required, every time it determined a complaint, to assess whether any limitation imposed by its decision was reasonable in accordance with section 5.

[67] Hansen J’s observations in this respect were not part of his formal decision (and were therefore “obiter dicta”).

[68] This same issue was considered again by the High Court in 2004, in Television New Zealand Limited v Viewers for Television Excellence (VoTE).2

[69] In VoTE, TVNZ had appealed a decision of the Authority that TVNZ had breached broadcasting standards by failing to include a warning before a news item that contained graphic and distressing footage. One of the grounds for the appeal was that the Authority had misapplied the requirements of the Act in coming to its decision. Unlike Holt, therefore, the judge in VoTE (Justice Wild) was required to consider the application of section 5 of the Act as a key element of his decision.

[70] Wild J concluded that the Authority was obliged to test its decisions against the reasonableness requirement in section 5 of the Act. He acknowledged that Hansen J had come to a different conclusion in Holt, but stated:

With respect, I do not agree with [Hansen J’s interpretation]. Even if the standards themselves are unassailable, surely they can be misconstrued so as to produce a non BORA [Bill of Rights Act] compliant result. … The meaning of the standard adopted i.e. the particular interpretation or application, ought to be justifiable in terms of s5. I believe my view accords with the approach Goddard J took in Society for the Promotion of Community Standards Inc. – Visitor Q HC Wellington CIV 2002 485 238 16 January 2004, and earlier in Society for the Promotion of Community Standards Inc. – Baise Moi HC Wellington CIV 2002 485 235, 11 November 2003.

[71] Wild J concluded:

I consider that the application of the [Bill of Rights Act] meant that the Authority was required to take into account the right in question (here, section 14 of the [Act]) as a mandatory relevant consideration. It had to balance the limit on that right, which was inherent in its decision, against the objective sought to be achieved in the particular case, and it had to be satisfied as to the reasonableness of that intrusion. In short, a s5 type analysis. …

In my view, the act which attracts the [Bill of Rights Act] obligations is the determination by the Authority of complaints pursuant to the Broadcasting Act. It is that act of decision making which is implicitly qualified by the requirement not to perpetrate unreasonable limits on rights.

[72] Wild J also noted that this approach had received “at least implicit approval” from Chambers J in TV3 Network Services Ltd v ECPAT,3 which was also decided after Holt.

[73] The Authority concludes that it must follow the reasoning of Wild J in the VoTE case. As noted above in paragraph [67], Hansen J’s comments in Holt were only obiter observations, whereas in VoTE, Wild J’s Bill of Rights Act conclusions were essential to the decision. The Authority is accordingly bound by VoTE in relation to this issue, but not by Holt.

[74] For these reasons, the Authority concludes that it must consider the impact of the right to free expression as set out in section 14 of the Bill of Rights Act, and assess whether any limit on this right imposed by its determination of a complaint is reasonable and demonstrably justifiable in a free and democratic society.

Blasphemous libel

[75] Two complainants suggested that the broadcast breached s123 of the Crimes Act 1961, which makes the publication of “blasphemous libel” an offence. “Blasphemous libel” remains undefined in the legislation.

[76] A prosecution for the offence can be brought only with the consent of the Attorney-General.

[77] In its decision on the complaints, CanWest noted that any issue as to whether the programme contravened this section of the Crimes Act was a matter for the Attorney-General, and not a matter of broadcasting standards.

[78] The Authority agrees with CanWest’s approach in this respect. It has jurisdiction only to consider whether a broadcast has breached specified broadcasting standards, and has no power to determine either the meaning of the words “blasphemous libel” or whether the programme breached this section of the Crimes Act.

Section 4(1)(a) and section 4(1)(e)

[79] Michael Gibson, in his complaint to CanWest, specified that his complaint was made under s4(1)(a) of the Broadcasting Act, rather than s4(1)(e).

[80] Section 4(1)(a) provides:

Every broadcaster is responsible for maintaining in its programmes and their presentation, standards which are consistent with—

(a) The observance of good taste and decency

[81] Section 4(1)(e) provides:

Every broadcaster is responsible for maintaining in its programmes and their presentation, standards which are consistent with—

(e) Any approved code of broadcasting practice applying to the programmes

[82] The majority of complaints received by the Authority are made under s4(1)(e), as they cite the standards in the approved broadcasting codes – Free-to-Air Television, Radio, and Pay Television.

[83] The Authority accepts, however, that in addition to complaining under the relevant code of practice (s4(1)(e)), a complainant may also complain under the provisions of the legislation itself (s4(1)(a)), which also impose obligations on broadcasters.

[84] Mr Gibson brought his complaint under s4(1)(a) because in his opinion the provisions of the Code (in this case the Free-to-Air Television Code) “mitigate [CanWest’s] obligations under s4(1)(a)”. In essence, Mr Gibson’s argument is that the statutory obligation to observe the requirements of good taste and decency in s4(1)(a) is a stricter obligation than that imposed by Standard 1 of the Code of Practice.

[85] The Authority disagrees. The wording of s4(1)(a) is mirrored in all material respects in Standard 1 of the Free-to-Air Television Code. In its view, the provisions in the Code dealing with good taste and decency are intended to reflect and elaborate on the statutory requirement in s4(1)(a); there is no reason either in law or in common-sense for the legislation to require one standard, and the Code another. It notes that it has addressed this same issue in previous decisions; see Decisions No. 2000-137 and 2001-133.

[86] For these reasons, the Authority considers that s4(1)(a) of the Broadcasting Act, and Standard 1 of the Free-to-Air Television Code, both of which refer to “good taste and decency”, impose the same standard on broadcasters; there is no material difference between the two provisions. For this reason, Mr Gibson’s good taste and decency complaint will be considered under the same principles as the other similar good taste and decency complaints.

Bringing forward the screening date

[87] A number of complainants argued that CanWest also breached broadcasting standards in bringing forward the programme’s screening date.

[88] The date on which any particular programme is to be screened is determined at the broadcaster’s discretion. In the view of the Authority, the date of the screening – unless, perhaps, it were on a religious holiday such as Good Friday or Christmas Day – is not a relevant contextual factor in considering whether the content of the particular programme met broadcasting standards.

Determination – some standards do not apply

[89] In the Authority’s view, this episode of South Park raises two key issues; first, whether the programme breached standards of good taste and decency (Standard 1) and, second, whether the programme encouraged the denigration of identifiable groups (Standard 6). The determination of these complaints commences at paragraph [103] below.

[90] In addition to Standards 1 and 6, however, complainants also raised Standards 2 (law and order), 3 (privacy), 4 (balance), 5 (accuracy), 8 (programme information), 9 (children’s interests) and 10 (violence).

[91] The Authority considers that none of these other standards has any application to the present case. For this reason, it addresses them succinctly.

Standard 2 (law and order)

[92] The law and order standard is primarily intended to prevent broadcasters:

  • inciting viewers or listeners to commit unlawful acts or advocating taking the law into one’s own hands
  • displaying contempt for a valid legal process, or impeding or interfering with the disposition of any case before a court
  • glamorising realistic criminal behaviour or explaining unusual techniques of crime.

[93] Nothing in this episode of South Park met those criteria, and accordingly this aspect of the complaints is not upheld.

Standard 3 (privacy)

[94] South Park is fictional, and did not broadcast “facts” about any person. The privacy standard accordingly does not apply.

Standard 4 (balance)

[95] The balance standard applies only to “news, current affairs, or factual programmes”. As animated satire, South Park did not fall into any of these categories and was accordingly not subject to the balance standard.

Standard 5 (accuracy)

[96] Like balance, the requirement for accuracy applies only to news, current affairs, or factual programmes. The standard has no application to the present case.

Standard 6 (fairness) and guideline 6(f) (humiliation)

[97] The Authority notes that the programme was overtly fictional and farcical. Guideline 6(f) refers to the rights of individuals not to be humiliated, exploited or unnecessarily identified. This guideline, in the Authority’s opinion, is intended to apply to factual programmes in which real, identifiable individuals are humiliated or exploited. The guideline is not intended to prevent the satirical portrayal of historical or famous figures.

Standard 8 (programme information)

[98] The Authority is unable to see any way in which the programme information and structure deceived or disadvantaged viewers of South Park . It concludes that the standard does not apply.

Standard 9 (children’s interests)

[99] Broadcasters are required to consider the interests of child viewers only at “children’s normally accepted viewing times”.

[100] South Park screened at 9:30pm, an hour after the Adults Only watershed. This was outside children’s normally accepted viewing times, and thus the standard does not apply to the present case.

Standard 10 (violence)

[101] Standard 10 requires broadcasters to exercise care and discretion when dealing with the issue of violence. One complainant suggested that the squirting of blood onto people’s faces amounted to an act of violence for the purpose of the standard.

[102] The Authority disagrees. While in some contexts, projecting blood onto a person’s face could amount to violence, that was not the case in this programme. The scenes with the “blood” were farcical and ridiculous, and conveyed no sense of violence. Accordingly, the Authority concludes that this standard does not apply.

Standard 1 (good taste and decency)

[103] As noted earlier in this decision, the complaints alleging a breach of good taste and decency fell into two general categories: first, that the programme’s portrayal and description of menstruation, and in particular the blood being projected onto the faces of some characters, was offensive; and second, that the programme demeaned Catholic icons and practices.

[104] In relation to the first complaint, the Authority notes the following contextual factors:

  • the programme was rated AO, and was thus clearly unsuitable for children
  • the programme screened at 9:30pm, an hour after the AO watershed
  • the programme was preceded by a warning
  • South Park is well-known for its challenging material
  • C4, and South Park in particular, target an audience under 30 years of age.

[105] The Authority accepts that the idea of menstrual blood being squirted into the face of another person is potentially offensive to many people. Such offence may well be compounded when accompanied by descriptions of a statue “bleeding out her ass” and “bleeding from her vagina”.

[106] The portrayal of this in South Park, however, was highly unrealistic and farcical. The programme’s animation is simple and crude, and bears no resemblance to reality. In the Authority’s view, this crude animation and lack of realism mitigated to a significant extent the shock value and offensiveness that a more realistic portrayal might have generated.

[107] Accordingly, while some may have found the subject matter distasteful, the Authority agrees with CanWest that the show’s adult target audience would not have been offended. Those outside the demographic at which South Park is aimed would have been sufficiently well informed by the 9:30pm timeslot, the AO classification, the pre-broadcast warning, and the well-known nature of this series, to enable them to make an informed choice about whether or not to watch.

[108] Some complainants criticised this approach by CanWest, arguing that it leads to the conclusion that, so long as there is a target audience for any particular material, a broadcaster can always justify its broadcast in terms of the standards.

[109] In response to these concerns, the Authority emphasises that there will always be limits beyond which a broadcaster cannot go, irrespective of the context in which the material is offered, or the programme’s target audience. These limits have recently been given effect by the Authority in Decision No. 2005-137, where the Authority upheld a complaint against a well-known satirical programme, specifically acknowledging that mitigating contextual factors will not save a programme if it has gone too far (see paragraph [27] of that determination).

[110] In the present case, however, the material was of such a farcical, absurd and unrealistic nature that it did not breach standards of good taste and decency in the context in which it was offered.

[111] The second category of good taste and decency complaint was that it was a statue of the Virgin Mary that was shown menstruating over the faces of a cardinal and the Pope. This, complainants felt, was deeply offensive to their Catholic faith.

[112] The Authority canvassed similar issues in its recent decision about three episodes of Popetown (Decision No. 2005-112). In that case, the complainant had argued that a programme lampooning the Catholic Church, its officers and practices breached the requirement for good taste and decency. In essence, the Authority was asked to find that a programme – which apart from its religious content contained little challenging material – breached the requirement of good taste and decency because its target was the Catholic Church and Catholic practices.

[113] The Authority concluded:

[102] In the Authority’s view, the complainant’s concern is not that the programmes’ content was so overt or explicit as to offend against notions of good taste and decency. The complainant’s fundamental concern instead appears to be that this programme breached standards of good taste and decency because it was deeply offensive to Catholics to see their religious institutions, and in particular a beloved leader, portrayed in such an irreverent manner.

[103] Therefore, the complainant is asking the Authority to find that the programmes’ lampooning of Catholic institutions was so offensive that it must, as a matter of public interest, have breached standards of good taste and decency.

[104] The Authority accepts that there may be material that could potentially offend good taste and decency, irrespective of the context in which it was broadcast. Any material that was objectionable in terms of the Films, Videos and Publications Classification Act 1993, for example, would inevitably do so. Eroticised sexual violence would also severely test standards of good taste and decency, irrespective of its context; in Decision No. 2004-007 the Authority upheld such a complaint, despite the programme being broadcast at midnight on a pay-television channel. In such cases, the Authority accepts the possibility that the public interest would require that a breach be found, irrespective of the target audience’s expectations or other contextual factors.

[105] In effect, the complainant is asking the Authority to conclude that Catholicism is a similarly sensitive area and that as a matter of public interest, lampooning its institutions as Popetown did should not be permitted.

[106] The Authority cannot conclude that this is so. It accepts that the members of the NZCBC are deeply offended by the programmes – as are other Catholics who have seen them. But the right to satirise institutions within society falls squarely within a broadcaster’s freedom of expression. This is especially so when the institution involved is a global one, sufficiently robust to withstand lampooning of its practices and beliefs.

[107] While there may be situations where satire does offend good taste and decency – for example, where the programme was particularly vicious or vitriolic – the Authority considers that the extremely fanciful episodes of Popetown complained of do not fall into that category. It would be an unreasonable limitation on the right to free speech to interpret the requirement of good taste and decency so as to prevent the satirical or humorous treatment of religion in this manner.

[114] The above passage demonstrates the striking similarity between that case and the present. Again, in respect of South Park, the Authority is being asked to find that a programme breached standards of good taste and decency because of the disrespect that it demonstrated towards beliefs that Catholics hold sacred.

[115] The Authority can understand the level of concern within the Catholic community, which has been subjected first to Popetown and now to South Park, both of which have caused a considerable degree of offence for the Church and its members. However, it is unable to reach a different conclusion from that in the Popetown case.

[116] Although it accepts and acknowledges the degree of hurt apparent in the complaints it has received, the Authority is of the view that the institution of the Catholic Church, its practices and its icons, are entitled to no greater degree of protection than any other institution in our society, whether it be religious, political or cultural.

[117] Were the Authority to uphold the complaint, this would amount to a statement that broadcasters who offer satire, humour and drama as their fare may not offend against the religious convictions of others, and that such offence amounts to a breach of good taste and decency. That, in the view of the Authority, would be an unreasonable limitation of a broadcaster’s right to freedom of expression, which includes the right to satirise religious issues.

[118] As noted in the Popetown decision, vitriol or vicious attack may well breach the standard. The Authority does not agree that South Park did this, however. While clearly the episode showed no respect for the revered status of the Virgin Mary within the Catholic faith, or indeed for the Pope and cardinals, it did not cross the requisite threshold; this is discussed further in paragraphs [133]–[137] below.

[119] For these reasons, the Authority does not uphold the good taste and decency complaints.

Guideline 6(g) (Denigration)

Test for denigration

[120] A number of the complaints alleged that the programme denigrated all Christians, Muslims, Jews, and women. The Authority does not uphold these complaints.

[121] The test for establishing denigration has been settled for many years; the issue is whether a broadcast blackens the reputation of an identifiable class of people. There is no more precise way of defining the cases that will meet the threshold; each case must be decided on its individual facts, and no definitive “line” can be drawn of the sort suggested by the NZCBC.

[122] A programme’s humorous or satirical intent is a highly relevant factor in assessing an allegation of denigration. Guideline 6(g)(iii) is explicit in this respect – the standard is not intended to prevent the broadcast of material offered in the legitimate context of a dramatic, humorous or satirical work. This does not mean that drama, humour or satire are given unchecked freedom; their specification in guideline 6(g)(iii) simply reflects the fact that democratic societies place a high value on these forms of artistic expression, and limitations should be imposed only in extreme circumstances which take a broadcast outside of a “legitimate context”. As the Authority noted in paragraph [119] of the Popetown decision:

… guideline 6(g)(iii) states that the standard is not intended to prevent the broadcast of material which is in the legitimate context of a humorous or satirical work. The right to satirise, dramatise and laugh at society’s institutions is the very essence of free speech. Because democratic societies place a high value on these forms of expression, the Authority has set a high threshold before such material will be found to have amounted to denigration. A satirical or humorous work would have to move towards the realm of hate speech or vitriol before the threshold would be crossed.

[123] Two recent cases in which the Authority has found denigration include:

  • a radio host mounting a sustained attack on the Exclusive Brethren, calling them among other things “probable child abusers”, “a sort of quiet Mongrel Mob” and “as mad as hatters, not very bright people as well” (Decision No. 2004-193); and
  • a television preacher saying that AIDS is caused by the “filthy practices” of homosexuals, that homosexuals are dropping dead from AIDS and “they want to take us all down with them”, that homosexuals are “sick” and “not natural”, and that Muslims are going to have to take a stand [against homosexuals] and “it's not enough to call names” (Decision No. 2004-001).

[124] In the first case, the Authority considered that the host’s comments amounted in their totality to a “vitriolic tirade”; in the second, the Authority considered that the comments could be “aptly described as hate speech”. While neither of these broadcasts was satirical, they do, in the Authority’s view, characterise the type of vitriol or hate speech that is required before a dramatic, satirical or humorous work could be found to have breached the denigration threshold.

Denigration – Christians, Jews, Muslims, and women

[125] The Authority observes that to the extent that the programme did satirise religious matters, it was made clear by the portrayal of the Virgin Mary, the Pope and the cardinal that its target was the Catholic Church. The fact that the Virgin Mary also plays a role in other religions provides no basis for the Authority to find that members of those other religions were denigrated by this broadcast. They were neither mentioned nor portrayed and, accordingly, the Authority disagrees that their reputations were in any way affected by the programme.

[126] Nor does the Authority uphold the complaints that the broadcast denigrated women. Other than showing a statue of the Virgin Mary apparently menstruating, the programme made no comment on the role or place of women generally.

[127] Two issues are therefore left for determination: first, whether the broadcast encouraged the denigration of members of the Catholic Church; and second, whether the broadcast encouraged denigration of alcoholics and members of Alcoholics Anonymous.

Denigration of Catholics

[128] The first point the Authority must determine is whether the programme was “satire”. Numerous complainants took issue with CanWest’s definition of satire, suggesting that satire must expose “vice or folly”. South Park, they argued, ridiculed ideas worthy of reverence, and thus could not be classified “satire”. A number of complainants referred to the Concise Oxford Dictionary in support of their arguments.

[129] The Authority does not agree with the complainants in this respect. First, the complainants’ arguments lead to the conclusion that religious beliefs and practices must be immune from satire. The Authority repeats its observation in Decision No. 2004-152 that it would be “a dangerous precedent to provide to any single identifiable group a greater degree of protection than others against legitimate humour or satire.”

[130] Second, the complainants’ arguments all adopt a narrow definition of “vice or folly” and indeed of satire. They ignore the possibility that for other people, faith in religious miracles and the power of religious icons might be seen as “folly”. Satire is seldom respectful or reverential and while the satire was not to the complainants’ liking, the Authority cannot agree with the premise, implicit in their arguments, that broadcasters may not legitimately satirise religious belief.

[131] The Authority has no hesitation in concluding that South Park is satire within the meaning contemplated by the Free-to-Air Television Code, and that the episode complained of was overtly satirical and humorous in intent.

[132] Clearly South Park has offended a significant number of the Catholic community. The key question is, however, whether despite being satirical, and thus entitled to a significant degree of protection, it amounted to a vicious or vitriolic attack upon Catholics and their beliefs.

[133] The Authority is unable to conclude that the broadcast encouraged the denigration of Catholics. The intent of this programme was to satirise, among other things, belief in the miraculous power of religious icons. The programme was not, however, a direct attack on the Church or on Catholics, although it was deliberately provocative in making its point. There is no doubt that aspects of their religion revered by devout Catholics were treated in a disrespectful and cavalier fashion, in particular a statue representing the Virgin Mary. But showing disrespect, in the view of the Authority, does not amount to the sort of vicious or vitriolic attack that the standard envisages.

[134] Many of the complainants emphasised that the “attack” came in the form of defiling the purity of the Virgin Mary, and demeaning her through the association with menstrual blood and the crass utterances of “out her ass” and “from her vagina”. The complainants felt that this was a serious attack, as it defiled someone who deserved reverence and respect.

[135] Again, while acknowledging the genuine concerns of the complainants, the Authority declines to uphold this aspect of the complaint. In essence, the complainants are asking the Authority to compel a broadcaster to respect a religious figure that they hold dear. The Authority, however, remains unpersuaded that this lack of respect amounted to an abusive attack on Catholics or Catholicism.

[136] Furthermore, as noted in paragraph [117] above in the discussion of good taste and decency, penalising a broadcaster simply because it has caused religious offence would, in the Authority’s view, be an unreasonable limitation on the broadcaster’s right to free expression, as such a sanction could severely limit its ability to satirise religious matters. As the Authority noted in the Popetown decision:

… the Authority is not persuaded that in modern New Zealand society [religion] is of any greater sensitivity or importance than issues of race, colour, sexual orientation, or political belief. While it should be afforded equal protection, it should not be given special consideration. …

Such satirical treatment of society’s institutions – whether they be religious, political or cultural – is simply part and parcel of living in a Western democracy which values freedom of expression.

[137] For these reasons, the Authority concludes that the programme did not denigrate Catholics, and accordingly declines to uphold the denigration complaint.

Denigration of alcoholics

[138] The final point for the Authority to determine is whether the programme encouraged denigration of alcoholics, or members of Alcoholics Anonymous.

[139] In the view of the Authority, the actions of some alcoholics and Alcoholics Anonymous were the prime focus of the programme’s satire. There was nothing, however, in the Authority’s view, that could have amounted to denigration. While the programme used satire to question the attitudes and beliefs of Alcoholics Anonymous members, it did so without vitriol or abuse. In the view of the Authority, the satire fell well within the boundaries of the denigration standard.

 

For the above reasons the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

 

Joanne Morris
Chair
28 June 2006

Appendix 1: The Free-to-Air Television Code of Broadcasting Practice

View the Free-to-Air Television Code

Appendix 2: CanWest’s Decision on the Formal Complaints


Date: 27 March 2006

DECISION OF C4 STANDARDS COMMITTEE

The Programme

South Park is a well-known adult cartoon that has screened in New Zealand for nine years. In the time that South Park has been on air the show has poked fun at most major religions, nationalities and authority figures. The religious groups it has satirised include Christians, Mormons and Jews.

South Park is a show with a Black character named Token, a homophobic teacher who has had a sex change operation, a parent who is a drug addict, prostitute and a hermaphrodite, a Christmas figure – Mr Hanky the Christmas Poo and Cartman, who can be credibly described as the root of all evil in the universe. These are all recurring or main characters on the show.

In the episode Bloody Mary, South Park satirises people who think that how much they drink is dependant on a “higher power” and not a matter of free will – what the children refer to in the programme as discipline. The programme, in the guise of this adult animation questions whether humans possess genuine moral freedom, power of real choice, or whether our thoughts, character and external actions are all predetermined by a higher power?

As Stan’s father’s “Randy” attempts to face his drinking problem he is told at an AA meeting that he has no control over how much he drinks, that he has a disease. This information causes Randy’s drinking to spiral out of control, until he finds a higher power that can make him stop drinking- a bleeding statue of Mary.

South Park was rated AO (Adults Only) and restricted to screening after 9.30pm. An AO rating means: Programmes containing adult themes and directed primarily at mature audiences.

AO programmes may be screened between midday and 3pm on weekdays (except during school and public holidays as designated by the Ministry of Education) and after 8.30pm until 5am.

The AO 9.30pm restriction means:

SPECIAL NOTE: There will be programmes containing stronger material or special elements which fall outside the AO guidelines. These programmes may contain a greater degree of sexual activity, potentially offensive language, realistic violence, sexual violence, or horrific encounters. In such circumstances, time designations such as "AO 9.30pm or later" may be appropriate.

South Park : Bloody Mary was preceded by the written and verbal warning: This programme is recommended for Adults Only viewing. Certain scenes and language may offend.

There was significant publicity concerning the subject matter and material contained in the programme. Stills from the most potentially offensive scenes were printed in colour in national newspapers and shown in television news reporting before the episode went to air. The images published included the Pope & a Cardinal having “blood” squirted in their faces (the image of the Pope was printed on the front of the paper), as well as images of the Mary statue bleeding. Potentially offensive phrases from the show were also printed including “a chick bleeding out her vagina is no miracle – chicks bleed out their vaginas all the time”.

The Relevant Standards

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.

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.

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 is shown. Context takes account of the time of broadcast and the likely or target audience. Also relevant are the classification of the programme and the use of warnings (if any). Relevant contextual factors here are:

The time of screening and use of Warnings.

South Park: Bloody Mary, screened at 9.30pm on a Wednesday night on C4. C4 is an accepted niche channel that is known for screening shows that can be more challenging than those shown on more conventional stations.

9.30pm is an hour after the AO or “Adults Only” watershed. Screening South Park at this later time ensured that the people that were viewing it would be able to understand that what they are watching was a story told from a particular perspective. This more mature audience would be able to better understand the intended tone and satire of the programme.

South Park carries its own embedded warning that all material is fictional “all characters and events in this show even those based on real people – are entirely fictional” and also carried a Censor Warning This programme is recommended for Adults Only viewing. Certain scenes and language may offend.

The AO rating.

South Park was rated AO and restricted to screening after 9.30pm because it contained material which was more challenging than could be expected from a PGR or 8.30pm AO cartoon. In this context the language for example “chicks bleed out of their vaginas all the time” and the visions of the Mary statue “bleeding” on people including “the Pope” and “the Cardinal” would readily be understood as satire. It can be expected that this more mature audience would be able to understand that the cartoon is not a depiction of reality.

The audience expectation and knowledge of cartoons based around the sensibilities of teenage boys

Many well-known cartoons show life from the perspective of teen or almost teen boys i.e. Popetown, The Simpsons, Beavis and Butthead and bro’Town. The New Zealand audience is well versed in the type of humor that this perspective shows – for example, fart and faeces jokes, sexual humour and a general disrespect for authority and irreverence for symbols or icons of religious belief.

South Park is in its 9th year of screening in New Zealand and has poked fun at a diverse range of groups, religions, sexual orientations & nationalities. C4 targets a 15-29 demographic. This audience has a high expectation that programming scheduled to screen on the Channel will be to its taste. The content of South Park in this context would not be surprising or even particularly challenging to the C4 audience.

Nor would the content have come as an offensive surprise to a viewer unfamiliar with South Park ’s established “brand” of humour. As discussed above there was a significantly enhanced public expectation of the programme as stills and associated phrases from the programme had already been published and printed in a national newspaper that was widely available to all ages. There was a high awareness of the likely content and time of screening of the programme ensuring that no viewer was likely to be taken by surprise by the content of the programme.

Taking these factors into consideration the Standards Committee does not consider that the language and behaviour in the programme was inconsistent with the observance of good taste and decency in the context in which it screened.

The Committee finds no breach of the Standard.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

6g Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:

i) factual, or

ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or

iii) in the legitimate context of a dramatic, humorous or satirical work.

The primary concern expressed about the programme was that it denigrated the Catholic Church and its members, The Virgin Mary and women generally. Some specific concerns have been addressed below.

At a general level the Committee has reached the conclusion that South Park is a legitimately humorous and satirical programme. It is always preceded by its own warning that states “all characters and events in this show  even those based on real people – are entirely fictional”. It pokes fun at everything and everyone. There is no expectation on the part of the viewer that anything said or shown in the cartoon should be taken seriously. The programme intends not to offend but to question society’s accepted behaviours and beliefs. It is overt satire that could not be mistaken for factual representation.

The Committee considered it helpful to define with some care what “satire” is.

Satire is a mode of challenging accepted notions by making them seem ridiculous Jacob Bronowski & Bruce Mazlish, The Western Intellectual Tradition from Leonardo to Hegel, p252

Satire has as  its chief instruments, irony, sarcasm, invective, wit and humour (Wordsworth Concise English Dictionary).

“Satirists have always made strong use of profane and obscene language to shock their audience. The profane and obscene are forms of desecration and pollution that respectively offend against that which is sacred and decent. Satirists employ taboo language, whether profane, obscene or scatological, to rouse their audience's disgust. When Pope's so-called “friend” protests at his use of such language in Epilogue to the Satires: Dialogue II, the poet replies that he is just as shocked by the behaviour of the court:

Fr. [Friend] This filthy Simile, this beastly Line, Quite turns my Stomach –

P. [Pope] So does Flatt'ry mine. (181-2)

The satirist uses the language of physical excrement metaphorically to describe a world of moral decay.” I.R.F. Gordon, Emeritus Anglia Polytechnic.

One of the features of satirical writing is the use of disrespectful and offensive language and images to ridicule prevailing beliefs or ways of thinking and provoke thought and laughter. This provocation is a way to initiate debate about these ways of thinking and help facilitate reflection on the subject matter - in this case Randy’s (and the AA’s) unblinking belief that the alcoholic has no power over whether or not they drink and also the belief in miraculous “bleeding” statues.

Many modern comedy TV shows use satire to some extent, especially animated comedies such as The Simpsons, South Park, Family Guy and Futurama.

The Committee regards the intentions, language and images of South Park: Bloody Mary as legitimate satire.

Even were it not legitimate satire (and therefore not covered by the exception for this genre in the Guideline 6g) the Committee does not consider the material shown in the cartoon encourages the denigration of, or discrimination against any particular societal group.

The “bleeding” statue of Mary; “blood” being spurted into the faces of various dignitaries (including “the Pope”); the discussion in the cartoon about whether the statue bleeding is a miracle or not and the “Pope’s” conclusion that it isn’t a miracle because “chicks bleed out their vaginas all the time” does not exceed the high threshold required for denigration nor does it blacken the reputation of or encourage discrimination against the Catholic Church and its members or The Virgin Mary and women generally. The cartoon contains no vitriol and is not hate speech.

With regard to specific concerns:

1. “Virgin Mary bleeding out her rectum and vagina”

The cartooned figure is not “the Virgin Mary” but a cartoon of a statue of Mary as the Rev. J. Smith pastor of Sacred Heart Catholic Church writes “Catholics do not worship paintings or statues. They are just a way of conveying something about God, and are not God themselves. It is quite clear to any thinking person that stone or paint cannot be God”. The Bloody Mary episode satirised the way some people believe that some “Virgin Mary” statues can bleed “blood” or sweat “rose water”. Conventionally the statues cry blood tears or “blood” comes from their hands “stigmata”. Most of these statues are not endorsed by the Catholic Church and many have been found to be the work of human agents rather than the hand of God. South Park poked fun by claiming the statue was “bleeding out her ass and vagina”. No genitalia or bodily functions were shown – this was a cartoon of a fully clothed stone statue. The depiction of the statue did not have such anatomical accuracy. What was actually drawn was “bleeding” from the back of the fully clothed stone statue.

2. “the portrayal of menstruation”

Logically, the statue did not have its period as it is made from stone and stone doesn’t live or bleed. It is fair to say that most women would not be offended by a cartoon of a statue supposedly with its period. Having a period is not dirty or disgusting and is something that happens with regularity to a significant proportion of the community. The South Park episode did not show any genitalia or body parts and did not infer or state that women are inferior because they menstruate.

3. People, including a cartoon of the Pope and an unknown Cardinal as well as “lay people”, being sprayed in the face by menstrual blood, the clergy dipping fingers in the “blood” and using it to bless people and the cartoon Pope saying “chick”

This scene was satire about people who choose to believe that holy statues miraculously bleed. The language ascribed to the Pope in the cartoon i.e. “a chick bleeding out her vagina is no miracle. Chicks bleed out their vagina all the time” is overt fiction and is language that only a character from South Park would use. The Committee accepts that it is so overtly unlikely that an actual Pope would say those actual words that no adult viewer would ever believe that the Pope actually said such a thing. The Pope is the head of the Catholic Church and therefore both a religious and political leader. Those who have an important and influential public role often find themselves being satirised.

4. The comments about the AA

The Bloody Mary episode looked at the issue of free will and satirised people’s weakness when they ascribe their actions to a higher power over which they have no control. Randy could have just decided not to drink to excess but he instead chose to believe that a bleeding statue could save him. He considers his disease (of alcoholism) to be far worse than legitimate diseases and handicaps such as cancer, elephantiasis etc. The way that the AA meeting was structured in the episode enabled Randy to lose control of his ability to say no. This is a legitimate satirical topic and acceptable for an “Adults Only” audience.

5. The title “Bloody Mary” refers to an extremely well-known alcoholic beverage made with tomato juice and vodka and spices. A “Virgin Mary” is just the tomato juice and spices. The episode title is a satirical word play on Randy’s drinking.

6. C4 deciding to screen the episode earlier.

It was C4’s position that there could not be a valid public discussion about the programme without the whole programme being screened. It was important that the content of the show was shown in the context of the storyline. The selection of images and dialogue out of context would inevitably lead to a public misconception about the overall programme. By screening the programme, the average viewer could see these scenes in the context of the whole programme and participate in a more valid discussion. The images in the newspaper including a still of “the Pope” having blood squirt in his face, the back of the statue with “blood”, the “Cardinal” being squirted were already in the public realm (without the time restrictions and warnings that were ascribed to the episode) before the South Park episode was even screened.

For all of the reasons that are set out above the Committee finds no breach of Standard 6.

The Decision

The Standards Committee has not identified any breach of the relevant standards and accordingly declines to uphold your complaint.

New Zealand Bill of Rights Act 1990

Section 14 of this Act provides for a statutory right to “freedom of expression” it states:

Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form.

This important right to “free speech” (as it is sometimes called) can only be limited if it is considered reasonable and justifiable in a free and democratic society to do so (s5 of the Act). The Standards Committee has considered your complaint weighed against the right to freedom of expression and considers that to uphold your complaint would unreasonably and unjustifiably restrict the public’s right to receive information and opinions of any kind in any form.

Right to Refer to Broadcasting Standards Authority and Time Limit

In accordance with Section 7(3) of the Broadcasting Act 1989 you are notified that it is your right, should you be dissatisfied with this decision, to refer this matter, under Section 8 of the Act, to the Broadcasting Standards Authority, (P.O. Box 9213, Wellington) for the purpose of an investigation and review of this decision. You have 20 working days after receipt of this letter to exercise this right of referral.

Standards Committee

 

Appendix 3: Correspondence Considered by the Authority

The Authority considered the following correspondence when it determined this complaint:

  • The formal complaint made by each complainant
  • CanWest’s decision on the formal complaints – 27 March 2006
  • The referral to the Authority made by each complainant

1[2002] NZAR 1013 PDF1.5 MB

2[2005] NZAR 1 PDF1.96 MB

 3[2003] NZAR 501 PDF1.3 MB