Issues 101 – gay movie – screened during gay television festival at 8.30pm – scenes depicting oral and anal sex – offensive – unsuitable for children
Standard 1 and Guideline 1a – depiction prolonged and graphic – offensive – majority uphold
Standard 9 and Guidelines 9b and 9c – offensive scene broadcast before 9pm on Saturday – unsuitable for children – unanimous uphold
Broadcast of Statement
This headnote does not form part of the decision.
 Issues 101 was a film broadcast by Triangle Television Ltd at 8.30pm on Saturday 1 March 2003. The film which was preceded by a warning, and classified AO, formed part of a gay television festival and included scenes depicting oral and anal sex.
 Barbara Calvert complained to Triangle Television Ltd, the broadcaster, that the film depicted scenes of "disgusting filth", and that the timing of the broadcast was inexcusable in light of the possibility of younger viewers seeing it.
 In response, Triangle stated that the film was preceded by a warning and was part of its annual gay television festival. It argued that the scenes of a sexual nature were implied, genitalia were not featured, and the only nudity was in non-sexual settings. It did not uphold the complaint.
 Dissatisfied with Triangle’s decision, Mrs Calvert referred her complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority upholds the complaint.
 The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Issues 101 was a film broadcast by Triangle Television Ltd at 8.30pm on Saturday 1 March 2003. The film was preceded by a warning, and an AO classification, and formed part of a gay television festival that had run since February 1.
 The film was described by the broadcaster as a serious drama about being gay and "coming out" in a student fraternity setting. The film, it added, included scenes of oral and anal sex which did not feature genitalia.
 Mrs Calvert complained about the scene in which a "blindfolded male was forced to give oral sex to another male". She said:
It’s bad enough that this disgusting filth was on TV at all, but it’s inexcusable that it was on reasonably early in the evening. It makes me sick to think that children, who are often allowed to stay up later on Saturday nights, could come across this filth.
 The complaint was assessed by the broadcaster under Standard 1 and Standard 9 of the Free-to-Air Television Code of Broadcasting Practice. The Standards, and relevant Guidelines, read:
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.
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.
9b When scheduling AO material to commence at 8.30pm, broadcasters should exercise discretion to ensure that the content which led to the AO rating is not shown soon after the watershed.
9c Broadcasters should have regard to the fact that children tend to stay up later than usual on Friday and Saturday nights and during school and public holidays and, accordingly, special attention should be given to providing appropriate warnings during these periods.
 Triangle Television contended that Issues 101 was a serious drama about being gay and "coming out" in a student fraternity setting. It was preceded by a warning, classified AO, and formed part of a gay television festival that had run since February 1.
 Triangle said that the scene depicting oral sex was part of a "fraternity hazing ritual" common to many American colleges. Triangle also said that the activity was implied, that there were no genitals displayed on screen, and that the only nudity in the film took place in non-sexual settings.
 Triangle confirmed that as a result of the complaint, the following year’s festival would be moved to a later time slot.
 Dissatisfied with Triangle Television’s response, Mrs Calvert maintained that the film contained "filth" that should not have been broadcast on free-to-air television. She was also very concerned that children could have seen it.
 Triangle stated that the film was screened between 8.32–10.02pm and ran without advertising breaks. It was preceded by an AO classification, a warning that " language and content may offend", and an introduction by the continuity announcer.
 In the broadcaster’s view, the scene referred to by the complainant was in context with the story-line and was not gratuitous. There was no explicit sex, and the film was targeted at a specific adult audience.
 In relation to the alleged breach of Principle 9, Triangle submitted that the film was broadcast after 8.30pm and the scenes objected to were not screened near the start of the watershed.
 Mrs Calvert concluded that while she would prefer to see films of this nature banned altogether, at the very least, "they should be screened as late as possible".
 When the Authority determines a complaint that a broadcast contravenes Standard 1 of the Television Code, it is required to determine whether the material complained about breached currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but does not determine whether the programme breached the standard. Accordingly the Authority has considered the context in which the film was broadcast.
 The Authority accepts that the relevant contextual matters on this occasion included the time of broadcast (at 8.32pm), the nature of the programme (adult festival film), the pre-broadcast warning, the context of the gay festival, and the programme’s AO classification.
 The majority of the Authority is of the opinion that regardless of the contextual matters, the scenes involving oral and anal sex went beyond the outer limit of what was acceptable on free-to-air television.
 The majority of the Authority is of the opinion that the activity complained about was prolonged, graphic, and featured an indulgent depiction of oral sex which, notwithstanding the absence of genitalia, was considered to be explicit. It is also of the opinion, that the scene would be equally offensive had the depiction been of a heterosexual nature.
 The majority of the Authority considers that the activity complained about was offensive and that the contextual matters referred to above were insufficient to mitigate a breach of the standards consistent with the observance of good taste and decency.
 A minority of the Authority (Dr Judy McGregor) disagrees. In the minority’s view this is a borderline case, which when taking into account the contextual matters referred to above, on balance, does not breach Standard 1. The minority accepts that the challenging nature of the content may divide viewers, and that the sexual activity pushes the boundaries of good taste and decency. However, it was an adult film, which was part of a gay television festival, and it was preceded by a warning.
 Guidelines 9b and 9c of Standard 9 require broadcasters to consider the interests of child viewers during their normally accepted viewing times and to have regard to the fact that children stay up later than usual on Friday and Saturday nights. Accordingly, broadcasters are asked to exercise discretion to ensure that any inappropriate content is not shown soon after the 8.30pm watershed.
 The Authority observes that the broadcast of this film commenced at 8.32pm on a Saturday night. While the scene complained about was broadcast after the 8.30pm watershed, it was screened before 9pm. In the Authority’s view the explicit nature of the sexual activity depicted should have been avoided in terms of Guidelines 9b and 9c. The Authority also believes that the broadcaster should have exercised its discretion to ensure that this material was not shown too soon after the watershed. As it did not do so, the Authority concludes that the broadcaster did not adequately consider the interests of child viewers during their normally accepted viewing time. Accordingly, the Authority is unanimous in finding a breach of Standard 9 of the Free-to-Air Television Code.
 The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision Nos. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion.
 For the reasons given in this decision, in particular the time the scene complained about was screened, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of the complaint.
For the above reasons, the Authority upholds the complaint that the film Issues 101, broadcast by Triangle Television Ltd on Saturday 1 March 2003 at 8.30pm, breached Standard 1 and Standard 9 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989. The Authority invited submissions from the parties. In doing so it asked Triangle Television to reflect on the nature of the breach which it considered occurred on the occasion of this broadcast.
 In her submission, Mrs Calvert asked that Triangle Television be ordered to broadcast a statement regarding the Authority’s decision. She also suggested an order for costs.
 In its submission, Triangle Television proposed that no order be imposed. It made this submission on the basis that the complaint had been treated as serious and that it had apologised to the complainant for any offence caused. Triangle also expressed its regret for its error of judgment in broadcasting the film at 8.30pm. It reinforced its concern, by undertaking to broadcast all future films of this nature, in a later time slot.
 Having taken the submissions into account, the Authority concludes that an order is appropriate. The Authority notes with approval that Triangle has taken the complaint seriously. However, it considers that the breach of the broadcasting standards on this occasion was serious. Accordingly, the Authority concludes that the broadcast of a statement is the appropriate action. In imposing the following Order, the Authority has considered the provisions of the New Zealand Bill of Rights Act 1990, and is firmly of the opinion that the Order is reasonably and demonstrably justified in a free and democratic society.
Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders Triangle Television Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld. The statement shall be approved by the Authority and broadcast on a day and at a time to be approved by the Authority.
The Authority draws the broadcaster’s attention to the requirements in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainant of the manner in which the above order has been complied with.
Signed for and on behalf of the Authority
Dr Judy McGregor
5 June 2003
The following correspondence was received and considered by the Authority when it determined this complaint: