BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Eating Media Lunch – item parodied “naked” news programmes – allegedly in breach of good taste and decency

Findings
Standard 1 (good taste and decency) – sequence unnecessarily lengthy – gratuitously explicit – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1] Eating Media Lunch is a series that lampoons aspects of the media both in New Zealand and overseas. The use of semi-naked news presenters in some countries was featured in the item broadcast on TV2 starting at 10.00pm on Tuesday 15 November 2005.

[2] The item presented the “Fuck News” which was said to originate in France. The item showed two partly dressed presenters who seemed to be having sexual intercourse while reading the news. The sequence included an interview apparently with the French producer who contended that the items were presented in greater depth than on regular news as viewers watched the items more intently.

[3] The item concluded with the woman presenter apparently masturbating the male presenter’s erect penis while presenting the weather forecast. Part of the visual was pixellated as the woman seemingly put the penis into her mouth.

Complaint

[4] Andrew Morrish complained to Television New Zealand Ltd, the broadcaster, about the sequence showing the woman kneeling in front of the man and masturbating his erect penis, and then apparently putting it into her mouth. He said that it was offensive.

[5] Rod Valenta complained about the same sequence in which the male presenter “with a large erection” was masturbated by the female presenter. The portrayal of a “handjob in crystal clarity”, followed by “a blowjob”, he wrote, was a blatant breach of the standard relating to good taste and decency.

Standards

[6] TVNZ assessed both complaints under Standard 1 of the Free-to-Air Television Code of Broadcasting Practice. The standard and guidelines 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. 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.

Broadcaster's Response to the Complainants

[7] In its reply to Mr Morrish, TVNZ referred to earlier programmes and said that Eating Media Lunch

… has earned itself a reputation for presenting satirical matter in what might be described as a fashion so outrageous that it makes fun of the very concept of taste and decency.

[8] Explaining that “naked” news transmissions existed in some European countries, TVNZ said that the sequence broadcast on this occasion raised the question “how far down this track would the media go?”

[9] In regard to the specific complaint, TVNZ contended that the “exaggerated” penis was clearly prosthetic and the masturbation was obviously simulated. The sequence, it maintained, was a humorous comment on a media out of control.

[10] TVNZ said that the following contextual matters were relevant in determining the complaint:

• the time of broadcast, 10.00pm
• the classification of the programme, AO
• the broadcast of a warning, both verbally and visually in the form of a caption
• the expectations of the target audience.

[11] TVNZ wrote:

It was the opinion of the [complaints committee] that, by its nature, Eating Media Lunch often delivers its satirical messages in so outrageous and flagrant a manner that it is obviously intended to encourage laughter rather than revulsion. The committee accepted that the programme would not be to everybody’s liking, but no television humour can amuse all viewers all of the time. This is because of the huge diversity in tastes and the wide variety of things that make people laugh. In the past Monty Python similarly pushed the boundaries of community conventions of its time, but would now be regarded as a trail-blazer in the history of comic and satirical innovation.

[12] Repeating the point that items screened on the well-established Eating Media Lunch sometimes seemed to mock the “very notion of good taste and decency”, and that the notion should be subject to “regular satirical scrutiny”, TVNZ declined to uphold Mr Morrish’s complaint.

[13] TVNZ’s response to Mr Valenta was similar, except that it also recorded that the sequence involved local actors. It added:

It was not an excerpt from a foreign programme, but the fact that you thought it was perhaps indicated that the satirical question being asked was quite appropriate. The “naked news” was real, the step beyond that to simulated sex was not.

Referrals to the Authority

[14] Dissatisfied with TVNZ’s responses, Mr Morrish and Mr Valenta each referred their complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

[15] Mr Morrish disputed TVNZ’s statement that the penis was prosthetic and that the masturbation was simulated, noting “It looked pretty real to me”.

[16] Mr Valenta said he accepted the other sequences in the item, and acknowledged that viewers had a choice about what items to watch. However, he maintained that the sequence he had complained about had crossed the line and was pornographic.

[17] Mr Valenta questioned whether the actors used were local and he did not accept that the penis was prosthetic. If it was prosthetic, he asked why it had been necessary to pixellate the image of the woman placing it in her mouth.

Broadcaster’s Response to the Authority

[18] TVNZ had nothing further to add to the referral from Mr Morrish. It commented on four aspects of the referral from Mr Valenta.

[19] First, it did not accept that the item was pornographic. Pornography, it wrote, was intended to stimulate sexual excitement, while this item had been intended to ridicule the tendency of some of the media to use sexual imagery to extremes.

[20] Secondly, the broadcast of the item at 10.00pm was not within mainstream viewing hours. Masturbation, it wrote, had featured in the late night comedy series Back of the Y.

[21] Thirdly, the actors had used heavily accented English as the producers had chosen France as the source for the semi-naked news.

[22] Finally, the electronic masking of the simulated oral sex, TVNZ said, was again part of the joke. It suggested that there might indeed be limits as to how far the media would go down the naked news track.

Authority's Determination

[23] 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.

[24] The Authority considers that the broadcast of the sequence complained about breached the requirement for good taste and decency in Standard 1 of the Free-to-Air Television Code.

[25] In its response to each of the complainants, TVNZ argued that the “exaggerated penis was clearly prosthetic”. The Authority observes that both complainants thought the prosthetic penis was real, and can understand why that impression was gained; it was sufficiently realistic to be likely to confuse viewers. Accordingly, the Authority does not accept TVNZ’s argument that the images were obviously unrealistic.

[26] Decision 2004-015/018 (dated 11 March 2004) is relevant to the Authority’s determination. In that decision, a majority of the Authority declined to uphold a complaint that an item on Eating Media Lunch which satirised Target, a consumer information series, breached Standard 1 (good taste and decency). Depictions in that item had suggested, among other things, telephone sex, drug use, masturbation, defecation and urination. A majority of the Authority, highlighting the satire and noting a number of relevant contextual factors, ruled the broadcast did not breach the standard.

[27] There are a number of contextual factors which favour the broadcaster’s position in relation to the current complaint. These include the time of broadcast (10.00pm), the AO classification, the use of visual and verbal warnings, and a target audience of adult viewers who would be aware of the satirical nature of the series and the challenging nature of some of its content. These factors, however, will not always be sufficient to prevent a programme breaching standards of good taste and decency.

[28] In the earlier decision, the Authority also acknowledged an important role for television to broadcast humorous exaggerated imitations of aspects of society, but pointed out that there were limits to what could be accepted even in a satirical context. The minority on that occasion believed that the limits were overstepped, and contended that the item was unnecessarily drawn out and that some of the scenes were presented in a gratuitously detailed manner.

[29] Unanimously, on this occasion, and focusing particularly on the length of the sequence complained about, and its sexually explicit nature, the Authority considers that the programme overstepped the limits. The masturbation sequence – which lasted 30 seconds – was gratuitously explicit, drawn out and clearly designed to shock. Accordingly, the Authority concludes that the depiction breached the requirement for good taste and decency in Standard 1.

Bill of Rights

[30] Section 14 of the New Zealand Bill of Rights Act 1990 affirms the right to freedom of expression. This provision is of particular importance when the Authority determines complaints that a broadcast has breached the requirements relating to taste and decency. However, the right is not absolute, but subject to reasonable limits that can be demonstrably justified in our society. For the avoidance of doubt, the Authority records that it has given full weight to the provision of that Act and taken into account all the circumstances of the complaints in reaching this determination. The Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaints that the broadcast by Television New Zealand Ltd of Eating Media Lunch on 15 November 2005 breached Standard 1 of the Free-to-Air Television Code of Broadcasting Practice.

[31] Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989. It does not intend to make an order on this occasion. The Authority considers that this decision and its publication serve as sufficient notification to TVNZ of the need to exercise more care when broadcasting sexually explicit material of this nature.

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 March 2006

Appendix

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

a.

1. Andrew Morrish’s Formal Complaint – 17 November 2005
2. TVNZ’s response to the Authority – 29 November 2005
3. Mr Morrish’s referral to the Authority – 8 December 2005
4. TVNZ’s response to the Authority – 14 December 2005

b.

1. Rod Valenta’s Formal Complaint – 15 November 2005
2. TVNZ’s response to the Authority – 29 November 2005
3. Mr Valenta’s referral to the Authority – 6 December 2005
4. TVNZ’s response to the Authority – 13 December 2005