BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
The Lions: Up Close and Personal – documentary series following The Lions’ 2001 rugby tour of Australia – team members filmed off field, on sideline, in dressing room – use of language including "bugger" and "fuck" – breach of good taste and decency

Findings
S.4(1)(a) – language acceptable in context – no uphold

This headnote does not form part of the decision.

Summary

[1] The Lions: Up Close and Personal was a four-part documentary series which followed The Lions representative rugby team during its 10-match tour of Australia in 2001. It was broadcast on Prime Television during November and December 2001.

[2] Paul Schwabe complained to Prime Television New Zealand Ltd, the broadcaster, that the use of language including "bugger" and "fuck" during the episode broadcast on 18 November 2001 at 8.35pm was contrary to good taste and decency.

[3] Declining to uphold the complaint, Prime argued that the "warts and all" nature of the series had been explained in all publicity, and that the programme had been broadcast after the 8.30pm Adults Only watershed and was accompanied by a visual and verbal warning.

[4] Dissatisfied with Prime’s response, Mr Schwabe 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.

Decision

[5] The members of the Authority have viewed a tape of the item complained about, and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] The Lions: Up Close and Personal was a four-part documentary series which followed The Lions representative rugby team during its 10-match tour of Australia in 2001. It was broadcast on Prime Television during November and December 2001.

[7] Prime described the series as follows:

The documentary was of the fly-on-the-wall type following team members off the field, on the sideline and in the dressing room. Unprecedented access was granted to the producer, nothing was hidden, the pep talks, the bickering, internecine tensions were all in full view – and hearing.

The series set out to provide a unique, behind the scenes, insight of the Lions’ six-week tour. The footage was to capture all the drama and emotion as the tourists push their minds and bodies to the limit. These no-holds barred programmes were to document the sweat and tears, the incredible highs and lows of a Lions tour, the pain, the misery, the joy, and the spirit of the team.

The Complaint

[8] Paul Schwabe complained to Prime Television New Zealand Ltd, the broadcaster, that the use of language including "bugger" and "fuck" during the episode broadcast on 18 November 2001 at 8.35pm was contrary to good taste and decency.

[9] Mr Schwabe said he was "extremely disappointed" in Prime as he had previously considered it to be "the only remaining broadcaster which the public could have any confidence would continue to comply with the decency requirement of the Act".

The Standard

[10] Prime assessed the complaint under s.4(1)(a) of the Broadcasting Act 1989, which states:

s.4(1) 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

[11] Prime noted what it described as "the aptness" of standard G2 of the Television Code of Broadcasting Practice, and that the standard was absent from the complaint. Standard G2 requires broadcasters:

G2  To take into consideration currently accepted norms of decency and taste in language and behaviour, bearing in mind the context in which any language or behaviour occurs.

The Broadcaster’s Response to the Complainant

 [12] Prime explained to Mr Schwabe that its Programme Manager had made a "specific and conscious" decision not to edit the language. To decide otherwise would have been to undermine the intent, purpose and objectivity of the programme, the broadcaster said.

[13] Prime explained that the series:

was not your polite, pre-prepared vox pop from players under instruction of what to and what not to say. Nor was it constrained by coaches only prepared to display their publicly professional side. This was warts and all.

[14] The nature of the series had been explained in all publicity, the broadcaster said. In addition, the programme was broadcast after the 8.30pm Adults Only watershed, and was accompanied by both a visual and verbal warning as follows:

The following programme contains language that some viewers may find offensive. Viewer discretion is advised.

[15] Declining to uphold the complaint, Prime said in the context of a programme about rugby players on tour, the potentially offensive language was not gratuitous, or used to gain any "notoriety or selfish attention". It added:

The [complaints] committee believed there always existed an obvious and ever-present probability that potentially offensive language would occur, that this could be anticipated by any viewer additional to the indicative publicity, specific warnings, and the AO censor designation.

[16] Finally, in coming to the view that s.4(1)(a) of the Broadcasting Act did not prevent the broadcast of the programme, Prime said it would be "a very bland and indeed uninformative world if it did".

The Complainant’s Referral to the Authority

[17] In his referral, Mr Schwabe said Prime’s assertion that the language complained about met the Act’s requirement of good taste and decency was "patently absurd". He continued:

As for the very bland and indeed uninformative world without broadcasts contrary to the Act! In the opinion of most people I know, Prime TV has, up till this series, been the leading television broadcaster where not only a guarantee of programme decency was important but also where the most informative programmes were the most important criteria. I hope Prime’s bizarre new opinion and the sudden failure of its previous sense of decency does not exempt it from its responsibility under the Act.

The Broadcaster’s Response to the Authority

[18] In its response to the Authority, Prime argued that the complainant’s interpretation of the intent behind s.4(1)(a) of the Act was a "very narrow one" and at odds with previous Authority decisions. After reiterating its concerns that the programme would have been artificial if the language had been excluded, Prime concluded:

We do not tamper with content nor manipulate our audience but purposefully take the approach that it is for them to come to their own conclusions and that they do.

The Authority’s Determination

[19] When it considers complaints alleging a breach of good taste and decency, the Authority is required to take into consideration the context in which the alleged breach occurred. The context is relevant, but not decisive, to its determination of whether a breach has occurred.

[20] On this occasion, the Authority considers the relevant contextual factors to include:

• the time of the broadcast at 8.35pm, after the Adults Only watershed;
• the programme’s Adults Only classification;
• that the broadcast was accompanied by both a visual and verbal warning, advising that the programme contained "language that some viewers may find offensive"; and
• the "fly on the wall" nature of the programme, which documented the reality of the rugby world.

[21] In the Authority’s view, while it considers the language in several changing room scenes to be at the outer limits of acceptability, in context the language in the programme did not stray beyond currently accepted norms to amount to a breach. It reaches this conclusion because it does not consider the language to have been used gratuitously or for effect, and viewers were well advised of the "warts and all" nature of the programme. In the Authority’s view, the broadcaster did not allow the language to be broadcast in order to increase its audience or gain commercial revenue. Rather, the language reflected the reality of the rugby world.

[22] In declining to uphold the complaint, the Authority also observes that the broadcaster’s statutory right to freedom of expression is protected by s.14 of the New Zealand Bill of Rights Act 1990. In the Authority’s view, to find a breach of good taste and decency in this instance would be to interpret the Broadcasting Act 1989 in a manner which cannot be demonstrably justified.

For the reasons above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
21 February 2002

Appendix

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

1. Paul Schwabe’s Complaint to Prime Television New Zealand Ltd – 24 November 2001
2. Prime Television’s Response to the Mr Schwabe – 4 December 2001
3. Mr Schwabe’s Referral to the Authority – 8 December 2001
4. Prime Television’s Response to the Authority – 14 December 2001