The Ugly – film rated R18 by OFLC – broadcast at 9.30pm – graphic violence and adult content – offensive – school holidays – unsuitable for children
Standard 1 and Guideline 1a – context included violent theme, cuts, time of broadcast, and warning – no uphold
Standard 9 and Guidelines 9a and 9c – 9.30pm not children’s normally accepted viewing time – no uphold
This headnote does not form part of the decision.
 The film The Ugly, a psychological thriller made in New Zealand, was screened on TV4 at 9.30pm on Thursday 16 January 2003.
 The Secretary (David Lane) of The Society for the Promotion of Community Standards Inc. (SPCS) complained to TV4 Network Services Ltd, the broadcaster, that the film breached the standards relating to good taste and decency, and to the protection of children. Although the SPCS acknowledged that the broadcaster could have made some cuts, it was pointed out, first, that the film had earlier been classified R18 "Contains Violence" by the Office of Film and Literature Classification (OFLC), and second, that it had been screened on television during the school holidays.
 In response, TV4 said, first, that cuts had been made to ensure compliance with broadcasting standards, and second, that 9.30pm was not the normal viewing time for children. It declined to uphold the complaint.
 Dissatisfied with TV4’s decision Mr Lane on behalf of the SPCS referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold 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.
 The Ugly, a New Zealand film, was described by the broadcaster as "an intense psychological thriller" in which a psychiatrist explores the mind of a serial killer in order to understand the reasons for his actions. It was screened on TV4 at 9.30pm on Thursday 16 January 2003.
 The complainant advised that the film had earlier been classified R18 "Contains Violence" by the Office of Film and Literature Classification (OFLC).
 The SPCS complained to TV4 that the broadcast breached the broadcasting standards relating to good taste and decency, and to the protection of child viewers. It acknowledged that cuts might have been made, but argued that a film classified as R18 should never have been broadcast at 9.30pm on a Thursday evening during school holidays.
 Referring to the Broadcasting Standards Authority’s publication "The Younger Audience: Children and Broadcasting in New Zealand", the SPCS said that the research showed that approximately 10% of children over 10 years of age were still watching television at 10.00pm on Friday and Saturday evenings. It added:
This is far beyond the so-called "8.30pm watershed".
 The SPCS pointed out that an R18 classification was a "high-end" restricted classification and contended that many young people would be watching television at 9.30pm during the school holidays, and would have been "adversely affected by it".
 The SPCS concluded:
In summary, considering "The Ugly" has:
Received an R18 classification for its NZ cinema and video release,
Contains adult content
Contains graphic violence (including detailed close-ups of victims’ throats being cut)
Has been given a censor’s warning "contains violence"
Contains offensive and obscene language,
…we believe that your company has been very irresponsible to broadcast this film mid-evening on a school holiday night to an audience that includes potentially thousands of vulnerable child viewers under the age of 18 years.
 TV4 assessed the complaint under the standards in the Free-To-Air Television Code of Broadcasting Practice nominated by the complainant. 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.
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.
9a Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material which would disturb or alarm them.
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.
 TV4 explained that before the film was screened it had been viewed by an appraiser who had ordered cuts to ensure that it complied with the AO rating. The screening, it added, was preceded by a verbal and written warning which advised viewers:
This film contains scenes of violence and coarse language. It is intended for Adult audiences.
 In assessing the Standard 1 aspect of the complaint, TV4 said that the following contextual matters were relevant:
the film was screened on TV4 which was a niche channel which included challenging material;
the film was cut, contained a warning, and screened one hour after the watershed;
the scenes containing violence, as the serial killer talked about his crimes, were cut and the depictions were edited closely; and
the film did not contain excessive swearing, noting that the word "fuck" and its derivations was used only 11 times during an 89 minute film.
 TV4 argued that the levels of violence and swearing did not breach Standard 1.
 TV4 observed that the OFLC’s ratings were based on potential harm to the community or material "injurious to the public good", while broadcasters had to comply with the Codes of Broadcasting Practice to which the OFLC’s ratings had little relevance. TV4 also contended that The Ugly was a New Zealand film which deserved to be screened in New Zealand, provided it complied with the Television Code.
 Turning to Standard 9, TV4 submitted that 9.30pm was not children’s normally accepted viewing time, even during school holidays, and emphasised that the film had been screened, with a warning, one hour after the watershed.
 TV4 declined to uphold the complaint, adding that it would be a breach of the freedom of expression provision in s.14 of the New Zealand Bill of Rights Act 1990, if the complaint was upheld.
 The SPCS expressed dissatisfaction that TV4 had failed to provide any proper evidence of the number of excisions made, or proper evidence of the reduction in the level of "graphic and offensive" violence. Neither, it added, did it record the amount of swearing removed. Declining to accept TV4’s decision in regard to Standard 1, it wrote:
[TV4] has failed to provide the most basic evidence required to prove its assertions concerning the offensive throat cutting scenes, including:
(1) the number of such scenes (and durations) cut from the original movie
(2) the number of such scenes in the uncut film
(3) a simple time line to prove that a genuine attempt was made to exercise the disturbing violence "at the beginning of the movie" as asserted
(4) evidence that such material at the "beginning" was "edited more closely" than material later in the film.
 The SPCS expressed the opinion that children’s interests had not been realistically addressed. It emphasised the findings of the Authority’s research regarding viewing by children after 9.30pm, stating:
[TV4] cannot dispute the fact that many hundreds (if not thousands) of 10-17 and near 18 year olds are up well after 9.30pm on most nights of the week, especially during school holidays. Therefore TV4 has been socially irresponsible for screening restricted R18 content – containing scenes of graphic violence (and obscene language) – to those under 18 years of age.
 Pointing out that it was an offence to supply films classified as R18 to those under the age of 18, the SPCS argued that TV4, in screening the film, had breached Standards 1 and 9 of the Television Code. Moreover, the SPCS considered that TV4’s description of itself as a "niche channel" was irrelevant, as all broadcasters were required to comply with the Codes of Broadcasting Practice.
 In regard to TV4’s reference to the Bill of Rights, the SPCS disputed TV4’s argument. It argued that it was both reasonable and justifiable in terms of s.5 of the Act not to screen The Ugly at 9.30pm, whereas it might not be unreasonable for a screening at 10.30pm, as that was a time when there was the least likelihood of children viewing the film, and being disturbed and alarmed by it. It wrote:
The vast majority of reasonable-minded adults would recognise that a broadcaster has every right under the law to choose to screen a disturbing film like "The Ugly" at a later time slot.
 The SPCS reiterated its disagreement with TV4’s contention that a broadcaster was entitled to screen R18 films any time after 8.30pm provided an appropriate warning was included, and provided the Code was complied with. It was the clear content of Guidelines 9a and 9c, it wrote, that broadcasters should have regard to the fact that children stayed up later during school holidays.
 The essential considerations, the SPCS wrote, were:
the protection of children from programmes containing adult themes which lacked good taste and decency;
the responsibility on broadcasters to demonstrate that they have made every effort to comply with the Codes; and
the fact, as the OFLC found with The Ugly, that gratuitous and graphic depictions of throat cutting and a high level of violence disturbed and alarmed children.
 The SPCS concluded:
Finally, the TV4 committee erroneously claims that "The Office of Film and Literature Classification ratings have little relevance to the screening of movies on FTA television as movies are modified from their original form to be able to screen." This is a circular argument as it assumes that a TV3 Appraiser did in fact cut the film to an appropriate format to make it comply with the Broadcast Standards Code. However, this is the very point under contention. If no cuts were made or insufficient cuts to meet the BSC, then a complainant has every right in law to appeal to the OFLC decision with respect to age suitability. In such a case the OFLC ratings are relevant. The Society is arguing that the cuts made to "The Ugly" were so insignificant that they would not have altered the OFLC classification on the publication, if the screened version was submitted to that "expert body" for appraisal.
 TV4 provided the Authority with a copy of its Programme Cut Sheet which recorded that six cuts had been made to The Ugly, the reason for them, and the total duration of 25 seconds. TV4 explained that it relied on its appraisers to ensure compliance with the Codes. Its Standards Committee, it added, viewed the programme when dealing with complaints and, in this instance, the Committee agreed that the film had considerable merit, and had been appropriately classified AO and screened at a suitable time with a warning.
 TV4 explained that it had outlined its processes to indicate that broadcasters’ processes differed from those followed by the OFLC. It had not said, it pointed out, that it considered that it was permitted to screen R18 movies after 8.30pm.
 Broadcasting the film at 9.30pm with a warning, TV4, said was a demonstration that it had considered the interests of children. That time, it maintained, was "well outside children’s normally accepted viewing times".
 With regard to the argument about the viewing habits of young people, TV4 contended that it had to be balanced by the rights of the older viewer. It pointed out the Appendix 1 of the Television Code accepted that 9.30pm was a time when stronger AO material could be screened, and continued:
To restrict material beyond 8.30 or 9.30pm would be to impose an unreasonable fetter on freedom of expression – well beyond that contemplated by the Code. The Code represents an attempt to define a balance between freedom of expression and an acceptable restraint on the exercise of that freedom.
 The SPCS maintained that TV3’s ability to assess programmes correctly – both at the level of appraiser and the Standards Committee - was "woefully inadequate". It argued that the level of "disturbing and gratuitous violence was not acceptable". The number of cuts made, the SPCS continued, removed only "a small fraction of the extreme violence and offensive language" in the film.
 The SPCS considered that the R18 rating by the OFLC gave a "factual, objective" account of the film’s level of violence, and concluded:
The argument based on freedom of expression is spurious. A responsible broadcaster would recognise that adults do not have a statutory right to view the objectionable and highly offensive content matter contained in The Ugly at 9.30pm when thousands of youngsters have ready access to such material.
 When it determines a complaint that a broadcast contravenes Standard 1 of the Television Code, the Authority is required to determine whether the material complained about breaches 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 complained about, was broadcast.
 Relevant contextual matters on this occasion include the time of the broadcast (9.30pm) and the film’s violent theme. The complainant stressed the R18 rating given to the film by the Office of Film and Literature Classification (OFLC). The Authority accepts that the OFLC ratings provide a starting point, but agrees with TV3’s statement that an OFLC rating does not determine the broadcaster’s ruling when deciding whether or not to screen the programme. As TV3 pointed out, broadcasters are required to comply with the Broadcasting Act. When reaching a decision under that Act as to whether to screen the film, TV3 explained that it decided to make a number of cuts, to classify the film as AO, to broadcast it at 9.30pm, and to precede the screening with a warning.
 As noted above, violence and its psychological underpinnings are the themes of the film and the Authority considered some of the scenes to be gruesome. However, given the film’s storyline which, as a psychological thriller, involved the serious study of a serial killer, the Authority did not consider the violence to be gratuitous. The Authority bears that matter in mind when assessing the applicable contextual factors.
 The complainant considered that the broadcast of the film during the school holidays was a highly relevant contextual factor. Reference was made to Guideline 9c which requires broadcasters to have regard to the fact that children tend to stay up later during the school holidays.
 Under the Television Code, the watershed after which broadcasters are allowed to screen "AO" rated programmes is 8.30pm. However, broadcasters are required to have regard to school holidays. The Code is not explicit as to what hour children may stay up to at weekends and during school holidays. Nevertheless, the Authority accepts that there is a time by which broadcasters are entitled to expect that parental responsibility is more important than broadcaster’s responsibility. The Authority accepts that by 9.30pm, in most instances, parents and other care givers can be expected to take responsibility for children’s viewing in addition to a broadcaster’s overall responsibility to adhere to the standards.
 The Authority does not accept that the broadcast of a New Zealand made film on a niche channel are relevant contextual matters. It acknowledges that some violent material in The Ugly tended to be horrific but in its view the material in the context of a psychological thriller about a serial killer did not breach current norms of good taste and decency. It reaches this decision in view of the relevant contextual factors noted, which focus in particular on the hour of screening and the warning that the film contained violence. The Authority concludes that the broadcast did not breach Standard 1 of the Code.
 Moreover, the Authority does not accept that the film was screened during "children’s normally accepted viewing times". Accordingly, it also concludes that Standard 9 was not transgressed.
 The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the above reasons, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
24 July 2003
The following correspondence was received and considered by the Authority when it determined this complaint: