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Findlay and Television New Zealand Ltd - 2011-008

Members

  • Peter Radich (Chair)
  • Te Raumawhitu Kupenga
  • Leigh Pearson
  • Mary Anne Shanahan

Complainant

  • Rhonda Findlay of Foxton

Dated

29th March 2011

Number

2011-008

Channel/Station

TV One

Broadcaster

Television New Zealand Ltd


Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
The Tiger’s Tail – movie contained scene which combined sex and violence – allegedly in breach of standards relating to good taste and decency, law and order and violence

Findings
Standard 10 (violence) – guideline 10c – depiction of rape required pre-broadcast warning – broadcaster did not exercise adequate care and discretion when dealing with the issue of violence – upheld

Standard 2 (law and order) – movie did not glamorise rape, or otherwise promote or condone rape – not upheld

Standard 1 (good taste and decency) – subsumed into consideration of Standard 10

No Order

This headnote does not form part of the decision.


Broadcast

[1]   A movie called The Tiger’s Tail was broadcast during TV One’s Sunday Theatre timeslot at 8.30pm on Sunday 31 October 2010. The movie was about Liam O’Leary, a successful Dublin property developer, whose life took a sinister twist when his estranged twin brother took over his life after convincing his family that he was Liam.

[2]   At approximately 9.30pm, the twin brother was shown standing in the doorway of Liam’s bedroom, watching Liam’s wife, Jane, who was sitting at a dressing table in her night-gown. Jane and Liam had previously argued, and Jane, thinking the twin was Liam, told him to “Change and get out”. The twin entered the room and removed his jacket, tie and pants. He moved over to Jane and put his arms around her and touched her breasts. Jane snapped at him, “Stop that!” and slapped his hands away. He continued to touch Jane and kissed her neck as she tried to fend him off by slapping him and telling him to “Let go”. The twin kissed Jane forcefully, threw her on the bed and began raping her. After a few moments she appeared to enjoy it; she moaned, touched his face and gasped “Oh Liam”. The scene ended with the couple kissing passionately.

[3]   Later in the movie, Jane realised that the twin was pretending to be her husband, however, she decided that she preferred the imposter to Liam and continued to live with him indefinitely.

Complaint

[4]   Rhonda Findlay made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the broadcast breached standards relating to good taste and decency, law and order and violence.

[5]   The complainant maintained that during the sex scene it was apparent the woman found “rape” a “pleasurable experience” and the outcome was also “positive”. In her view, the scene mixed consensual sex and force, was designed to titillate, glamorised rape, and failed to portray the “deep trauma and aftermath of a very serious crime against a person’s body and psyche”.

Standards

[6]   Standards 1, 2 and 10 and guideline 10c of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 2 Law and Order

Broadcasters should observe standards consistent with the maintenance of law and order.

Standard 10 Violence

Broadcasters should exercise care and discretion when dealing with the issue of violence.

Guideline 10c 

Programmes in which rape or sexual violence is a theme should be treated with care.

  • Explicit detail and prolonged focus on sexually violent contact should be avoided.
  • Any programme in which rape is depicted should be preceded by a warning.
  • The combination of violence and sexuality in a way designed to titillate should not be shown.

Broadcaster’s Response to the Complainant

[7]   TVNZ said that The Tiger’s Tail was in the Sunday Theatre timeslot, which showcased the best of movies for adults on TV One. “These movies are considered TV One’s premier product and TV One like to present them in as original format as possible for the enjoyment of loyal Sunday Theatre viewers,” it said.

[8]   The broadcaster argued that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was shown, including the time of broadcast, the programme’s classification, the target audience, and the use of warnings. TVNZ noted that The Tiger’s Tail was classified AO, screened at 8.30pm, and had an adult target audience. It was an “intricate movie with mature themes”, it said, and the central storyline was dealt with in a “challenging” but “legitimate” manner.

[9]   TVNZ noted that the scene subject to complaint was broadcast at 9.29pm, well into the movie, “which had by then established itself as having substantial dark and sinister overtones”. In the broadcaster’s view, adult viewers would have understood the relationship complexities portrayed in the scene, and considered that it was important to the overall story as it established “the kind of behaviour the doppelganger [was] prepared to engage in”. TVNZ accepted that the scene was “intentionally unsettling”, but argued that the violence shown was minimal and the sexual activity was presented as consensual, brief and relatively inexplicit. The twin’s actions were not presented as acceptable and the scene was not designed to titillate, it argued. For these reasons, TVNZ declined to uphold the complaint under Standard 1.

[10]   Referring to the Authority’s practice note on Standard 2 (law and order), TVNZ argued that for a breach to occur, a broadcast not only had to condemn a particular law, but also actively promote disrespect for it. It noted that the Authority had previously stated that the intent behind the law and order standard was to prevent broadcasts which instructed how to imitate an unusual criminal technique, or which otherwise glamorised criminal activity. The broadcaster said that the scene was not intended to condone or glamorise criminal behaviour. The twin’s behaviour was not presented as “worthy of imitation” it said, as he was portrayed as a “sinister, criminal figure, consumed with greed even as he has his way with his brother’s wife”. TVNZ concluded by stating that there was no element of promotion or encouragement and it declined to uphold the Standard 2 complaint.

[11]   Looking at Standard 10, TVNZ reiterated that the scene was not designed to titillate, but rather to unsettle, and that violence and sexuality were not combined for that purpose. It maintained that no explicit detail was shown and the scene did not focus on sexually violent contact. While the nature of the woman’s consent was oblique due to the twin’s duplicity, the plot line was acceptable in an AO-rated movie, it said. Accordingly, the broadcaster declined to uphold the Standard 10 complaint.

Referral to the Authority

[12]   Dissatisfied with the broadcaster’s response, Ms Findlay referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[13]   The complainant maintained that the scene “glamorised” sexual violence and was in “bad taste”. She argued that it gave the “message that if a man continues forcibly against a woman’s will, despite her initial resistance, she will realise that she wants to have sex ... and in this case the man also wins over the woman’s affections and passions long-term.”

[14]   Ms Findlay said that, “Assumedly, the romantic overtones mentioned by TVNZ refer to the forced kissing, and minimal violence refers to the start of the rape scene”. She argued that it was “ridiculous” to say that violence and sexuality were not combined in the scene, and she considered the objective was titillation. Rape occurred in the scene by deception, force or both, she said, and the victim impact portrayed was “indecent” and not treated with the “utmost care”.

Authority’s Request for Further Information from the Broadcaster

[15]   We asked TVNZ to confirm whether a warning was screened prior to the movie, and if not, for an explanation of why this was deemed unnecessary.

[16]   The broadcaster responded that the movie was not preceded by a warning, and noted that the complainant had not raised the absence of a warning in either her original complaint or referral. TVNZ said that warnings were only normally given for programmes containing material outside the expectations for that genre, or classification. The Tiger’s Tail did not contain any material that a viewer would not normally expect to see in a movie classified AO and screening in the Sunday Theatre slot, it said. The broadcaster stated that it did not overuse warnings because this would dilute their effect, and contended that this was common industry practice.

[17]   TVNZ said that it had spoken to a media specialist, who provided the following comment with regard to The Tiger’s Tail:

There was no language of a level that required a warning. While there was some violence shown in the movie, the level of violence was consistent with the expectations of an AO rating and did not dominate the movie so a warning was not necessary in this regard.

[18]   In relation to the scene subject to complaint, the media specialist stated that the violence was consistent with the expectations of the movie’s AO classification and was “relatively brief”. They said that the content was not explicit and was mostly “inferred (in the mind of the viewer) rather than shown”. They said that the scene occurred well into the movie, and argued that it would have been consistent with viewers’ expectations of “the psychological drama they had been viewing and consistent with material that screens later in the evening”.

Authority’s Determination

[19]   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.

Standard 10 (violence)

[20]   Standard 10 states that broadcasters should exercise care and discretion when dealing with the issue of violence.

[21]   We accept that the scene subject to complaint contained sexual violence, in the form of rape, for the purposes of Standard 10. Guideline 10c to the violence standard states that broadcasters must use warnings for all programmes containing rape. This applies regardless of the programme’s genre, classification, or time of broadcast. Although guidelines do not, of themselves, impose requirements on broadcasters, we consider that this guideline is of particular importance due to the inherently distressing nature of rape. It is our view that such themes, however depicted, must be treated with the utmost sensitivity and care.

[22]   We note TVNZ’s assertion that Ms Findlay did not raise the absence of a warning in her complaint. However, although she mistakenly referred to guidelines in the previous version of the Free-to-Air Code of Broadcasting Practice, Ms Findlay did explicitly nominate guideline 10d of that Code, which stated:

Programmes in which rape or sexual violence is a theme should be treated with the utmost care. Explicit detail and prolonged focus on sexually violent contact should be avoided. Any programme in which rape is depicted should be preceded by a warning.

[23]   We consider that the complainant did raise the guideline referring to warnings in her complaint – albeit with reference to the previous version of the Code – and was clearly concerned about the treatment that this scene received by the broadcaster. TVNZ was also given an opportunity to specifically respond on whether a warning should have been included. For these reasons we consider that it is appropriate for us to consider this issue.

[24]   On this occasion, taking into account our comments above in paragraph [21], we find that the broadcaster did not exercise appropriate care and discretion when dealing with the issue of violence because it failed to precede this programme with a specific warning that rape would be depicted.

[25]   Having reached this conclusion, we must now decide whether to uphold the complaint as a breach of Standard 10.

[26]   We acknowledge that upholding the Standard 10 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Knight and TVWorks Ltd,1 the Authority determined that upholding a complaint under Standard 10 would be prescribed by law and a justified limitation on the broadcaster's right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision the Authority described the objective of Standard 10 as follows:

...the violence standard exists to ensure that broadcasters use care and discretion to exclude unsuitable violent material and to promote the use of warnings where necessary to protect viewers – particularly child viewers.

[27]   We have noted above that themes depicting rape are particularly disturbing for viewers, and found that the scene subject to complaint therefore required a warning. In these circumstances, we consider that upholding the complaint clearly promotes the objective of Standard 10 as outlined above. We consider that upholding the complaint would be a reasonable and proportionate limit on TVNZ’s freedom of expression, as we are only requiring that a warning be included rather than finding that the content should not have been broadcast at all. Accordingly, we uphold the Standard 10 complaint.

Standard 2 (law and order)

[28]   Standard 2 requires broadcasters to observe standards consistent with the maintenance of law and order. The Authority has stated on a number of occasions that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity (see, for example, Keane and TVNZ2).

[29]   In this case we note that the fictional scene subject to complaint was relatively brief, and was not romanticised in any way. The scene formed part of a psychological drama with foreboding undertones, and there was nothing glamorous about the way that rape was portrayed. We do not consider the scene encouraged or condoned such behaviour. Accordingly, we decline to uphold the Standard 2 complaint.

Standard 1 (good taste and decency)                     

[30]   Standard 1 states that broadcasters should observe standards of good taste and decency.

[31]   The complainant’s primary argument related to the rape scene. As noted above, the distressing nature of themes such as rape meant that the scene required a warning. We consider that the complainant’s concerns in this respect have been adequately addressed under Standard 10. Accordingly, we subsume our consideration of Standard 1 into our consideration of violence.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of The Tiger’s Tail on 31 October 2010 breached Standard 10 of the Free-to-Air Television Code of Broadcasting Practice.

[32]   Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. We consider that this decision will serve as a reminder to broadcasters of the need to exercise extra care and discretion when dealing with the issue of rape, in particular by using warnings for all programmes in which rape is depicted, in accordance with guideline 10c to the violence standard.

Signed for and on behalf of the Authority

 

Peter Radich
Chair
29 March 2011

Appendix

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

1                  Rhonda Findlay’s formal complaint – 24 November 2010

2                 TVNZ’s response to the complaint – 16 December 2010

3                 Ms Findlay’s referral to the Authority – 18 January 2011

4                 TVNZ’s response to the Authority – 10 February 2011

5                 TVNZ’s response to the Authority’s request for further information – 2 March 2011


1Decision No. 2008-137

2Decision No. 2010-082