The Happy Hooker Goes to Hollywood – film screened on MGM Channel at 7.30pm on TelstraClear – nudity and sexual content – inappropriate timing – TelstraClear upheld complaint as breach of good taste and decency – apologised – future screening rescheduled to 4.25am – dissatisfied with action taken
Screenings of films in future by TelstraClear will comply with Standard Subscription Code rather than Advanced Code – action taken sufficient
This headnote does not form part of the decision.
 The film The Happy Hooker Goes to Hollywood was screened on the MGM Channel at 7.30pm on 28 March 2002. The MGM Channel is available to subscribers of both Sky and TelstraClear.
 Samantha Guzzo, a TelstraClear subscriber, complained to Sky Network Television Ltd that the broadcast breached the standards relating to good taste and decency, and to the time limits at which films rated R18 could be screened.
 TelstraClear Ltd responded, as it said that it was the broadcaster, and it upheld the complaint relating to good taste and decency. However, as the film was rated M, not R18, it added, it had not been screened at an inappropriate time. It advised that a future screening had been rescheduled.
 Dissatisfied with the action taken, Ms Guzzo referred her 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 that the action taken was insufficient.
 The members of the Authority have viewed a tape 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 film The Happy Hooker Goes to Hollywood was screened by TelstraClear on the MGM channel at 7.30pm on 28 March 2002. The film, rated M, recounts in a humorous vein the story of some film producers who sign Xaveria Hollander, a celebrated New York prostitute, to tell her story on film.
 As a TelstraClear customer, Samantha Guzzo complained to Sky Television that the broadcast breached the standards relating to the maintenance of norms of good taste and decency, and the standard relating to the times at which films rated 18 could be broadcast.
 The first standard in the Standard Television Code of Broadcasting Practice for Subscription Television nominated by the complainant requires broadcasters:
S2 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 other nominated standard reads:
S32 Programmes classified 18 may be broadcast between;
8.00pm – 6.00am
9.00am – 3.00pm other than weekends, school and public holidays.
 TelstraClear replied to Ms Guzzo, explaining that it was the broadcaster in terms of the Broadcasting Act 1989, as it had bought the MGM Channel from Sky for its customers.
 TelstraClear advised that the film was rated M, not 18, and that standard S32 had not been breached.
 With regard to standard S2, however, TelstraClear stated that, in agreement with Sky, it had decided to uphold the complaint as the film was unsuitable for screening at 7.30pm given the adult themes. One further screening of the film, it said, had been rescheduled to 4.25am.
 TelstraClear noted that the film complained about had been rated M by the Office of Film and Literature Classification, whereas two other Happy Hooker films had been rated R18. Had the film complained about also been rated R18, TelstraClear continued, Sky would not have scheduled a screening at 7.30pm.
 When she referred her complaint to the Authority, Ms Guzzo pointed to the different processes operated by Sky and TelstraClear, although both screened the MGM and Sundance Channels.
 Sky, she noted, operated an "opting-in" process where viewers had to enter a PIN number to view films rated R18 between 6.00am–8.00pm, whereas the same films were shown without a similar requirement by TelstraClear.
 Ms Guzzo added that she had phoned both Sky TV and TelstraClear several times, and neither had accepted responsibility for what she described as the breaches which were occurring because TelstraClear did not have similar technical facilities as Sky for its customers.
 TelstraClear noted that Ms Guzzo did not express any dissatisfaction with the specific action taken on her complaint. It continued:
I note that Ms Guzzo’s letter to you also raises a number of additional matters, unrelated to the present complaint. TelstraClear is aware of the issues arising as a result of the different operating platforms used by Sky TV and TelstraClear, and is currently working to address these matters. In the meantime, while not accepting that Ms Guzzo is correct in her suggestion that there will be continuing breaches of the Broadcasting Standards, TelstraClear has decided to block all R18 feed received from Sky TV’s MGM, Movie Max and Sundance Channels between the hours of 6.00am and 8.30pm.
 Ms Guzzo expressed pleasure that TelstraClear would now block R18 films during the hours indicated, but was still concerned that films rated M could be screened during those hours. She considered that TelstraClear should classify films itself rather than rely on any other source.
 When the TelstraClear system was combined with the Sky digital system, a range of Sky’s digital channels was made available for purchase to TelstraClear viewers. The Advanced Code of Broadcasting Practice for Subscription Television applies to these channels as Sky operates a system which requires a viewer to "opt-in" to a particular programme in order to view it. In view of this process, the Authority accepts that the Advanced Code is applicable. The Advanced Code does not include a watershed. Subscribers through TelstraClear do not have the same technical facilities available to them and films classified as 18 were able to be viewed without the need to take the "opting-in" step.
 Ms Guzzo complained about the screening of The Happy Hooker Goes to Hollywood on the MGM Channel at 7.30pm. If this film had been rated 18, viewers of the MGM Channel through Sky would have been required to "opt-in", whereas viewers on the MGM Channel through TelstraClear would have been able to view the film without any technical doorway. It must be noted however, that the film was in fact rated M and, accordingly, viewing through Sky or TelstraClear would not have been any different.
 The Authority has dealt with the above technical points as the essence of Ms Guzzo’s complaint was the use of the Advanced Code by TelstraClear to the broadcast of films rated 18, although it was required to comply with the Standard Code (which includes a watershed) as it did not provide an "opting-in" process.
 It must also be noted that TelstraClear upheld Ms Guzzo’s complaint that the broadcast of the film, in view of the adult themes, failed to comply with the requirements for good taste and decency, and advised that a future screening had been rescheduled during the AO timeband.
 Ms Guzzo was dissatisfied with the action taken by TelstraClear. Following the referral, TelstraClear informed the Authority that it had taken steps to ensure that the broadcasts of films by TelstraClear would in fact comply with the Standard Code. Ms Guzzo was pleased with that step, although she continued to be concerned that films might be rated as M when 18 was more appropriate.
 As TelstraClear has taken steps to ensure that the films available to its subscribers comply with the Standard Code, the Authority concludes that the action now taken is appropriate and sufficient. Accordingly, it declines to uphold the complaint.
 Finally, the Authority observes that to impose an order on this occasion would be to interpret 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 reasons above, the Authority declines to uphold the complaint that the action taken by TelstraClear Ltd when it upheld Samantha Guzzo’s complaint was insufficient.
Signed for and on behalf of the Authority
22 August 2002
The following correspondence was received and considered by the Authority when it determined this complaint: