Complaints under section 8(1B)(b)(i) and 8(1B)(b)(ii) of the Broadcasting Act 1989
Outrageous Fortune – coarse language broadcast during the first ten minutes of the programme including the word “cunt” – broadcaster upheld breaches of good taste and decency and children’s interests standards in relation to the use of the word “cunt” – action taken allegedly insufficient
Standard 9 (children’s interests) – guideline 9b – frequent use of language amounted to broadcast of strong adult material too close to 8.30pm watershed – broadcaster did not adequately consider children’s interests – upheld
Standard 8 (responsible programming) – frequent coarse language and use of the word “cunt” in first 10 minutes of the programme constituted strong adult material that warranted an AO 9.30pm classification and later time of broadcast – programme incorrectly classified – upheld
Standard 1 (good taste and decency) – frequent coarse language before 8.40pm was unacceptable in context, despite AO classification and expectations of regular viewers – upheld
Action taken: Standard 1 (good taste and decency) and Standard 9 (children’s interests) – action taken by broadcaster in acknowledging the breach, upholding the complaints and apologising to complainants was sufficient – not upheld
Section 13(1)(a) – broadcast statement
Section 16(4) – $3,000 costs to Crown
This headnote does not form part of the decision.
 An episode of Outrageous Fortune, a comedy-drama series about a one-family crime wave trying to go straight, was broadcast on TV3 at 8.30pm on 12 October 2010. In the first 10 minutes of the programme, characters used the following words and phrases:
 At approximately 8.40pm, a female character was shown in prison saying, in reference to another inmate, “You are not giving that cunt a cent.”
 The episode was preceded by the following warning:
This programme is rated Adults Only and is recommended for a mature audience. It contains language that may offend some people.
 21 complainants made formal complaints to TVWorks Ltd, the broadcaster, alleging that the language in the programme breached broadcasting standards.
 The essence of the complaints was that the use of the word “cunt”, as well as frequent use of variations of “fuck” and “shit”, during the first 10 minutes of the programme, when younger people could still be watching, breached Standard 1 (good taste and decency), Standard 8 (responsible programming) and Standard 9 (children’s interests). Many of the complainants also referred to an “offensive sexual reference”.
 Standards 1, 8 and 9, and guidelines 1a and 9b are relevant to the determination of this complaint. They provide:
Standard 1 Good Taste and Decency
Broadcasters should observe standards of good taste and decency.
Broadcasters will take into account current norms of good taste and decency bearing in mind the context in which any content occurs and the wider context of the broadcast e.g. programme classification, target audience, type of programme and use of warnings etc.
Standard 8 Responsible Programming
Broadcasters should ensure programmes:
- are appropriately classified;
- display programme classification information;
- adhere to timebands in accordance with Appendix 1;
- are not presented in such a way as to cause panic, or unwarranted alarm or undue distress; and
- do not deceive or disadvantage the viewer.
Standard 9 Children’s Interests
During children’s normally accepted viewing times (see Appendix 1), broadcasters should consider the interests of child viewers.
When scheduling AO material to commence at 8.30pm, broadcasters should ensure that strong adult material is not shown soon after the watershed.
 TVWorks considered each aspect of the complaints in turn.
Broadcast of the word “cunt”
 TVWorks accepted that the use of the word “cunt” was unacceptable in context, particularly the time of broadcast. It said, “We have found that the censor edits prescribed for this episode were overlooked during the preparation of the programme for broadcast, and the episode aired without the required cuts.” It upheld this part of the complaints under Standards 1 and 9. Having upheld the complaints, the broadcaster said:
As a result of this uphold, we have investigated our pre-broadcast processes and are confident that our systems are robust. The oversight occurred as a result of human error and disciplinary action has been taken and the person responsible for the error apologises for the offence caused. We are satisfied that the action taken (and the systems we already have in place to check material before it is broadcast) will ensure it does not happen again.
 TVWorks then turned to consider the other aspects of the complaints under Standards 1, 8 and 9.
Standard 1 (good taste and decency)
 The broadcaster noted that the Authority had previously said, “The purpose of the good taste and decency standard is not to prohibit challenging material, or material that some people may find offensive. Its purpose is to ensure sufficient care is taken so that challenging material is played only in an appropriate context, and that the challenges are not so offensive that they are unacceptable regardless of context.”
 TVWorks argued that “when appraising this episode, the programme appraiser took into consideration the popularity of the series and the audience expectation of its content”. It considered that “the popularity of the series demonstrates that many New Zealanders expect and are relaxed about viewing the challenging material within the context it is being presented – that is to say, they have found it acceptable in the context of Outrageous Fortune’s storylines and tone”. “That is not to say that the audience will accept content and language without limits in this programme, just that the previous content is a reliable measure of what the target audience finds acceptable,” it said. TVWorks was therefore of the view that “while... the content of Outrageous Fortune is not to everybody’s taste, there is clearly an appetite for the series and all that it entails”.
 The broadcaster concluded that, aside from the use of the word “cunt”, “the content of this episode is unlikely to have been considered offensive by its regular target audience at this broadcast time”. It therefore declined to uphold the remaining aspects of the Standard 1 complaints.
Standard 8 (responsible programming)
 TVWorks asserted that the programme was rated Adults Only and restricted to screening after 8.30pm “because it fell within well-established audience expectations of the series”. It alleged that “it has become clear over the years that Outrageous Fortune has screened that there is a high tolerance for the language used in the programme. The language is not gratuitous as it is presented as culturally appropriate to the characters and in some cases contributes to the humour of the programme,” it said. While it accepted that a recent survey by the Authority indicated that around half of the people surveyed considered the word “fuck” to be fairly or totally unacceptable in a drama or comedy after 8.30pm, it argued that this would not “fairly represent the expectations or views of the regular and target audience of this programme”.
 The broadcaster accepted that “the content of this programme resides at the edge of what is considered acceptable for an 8.30pm Adults Only programme,” but it did not consider that the episode went “beyond what the majority of the New Zealand audience would consider to be irresponsible or offensive in this timeslot for this particular programme”. TVWorks said that it had given weight to the “important factor” that Outrageous Fortune was a locally produced programme that had been very successful, which it considered “clearly demonstrates that the audience relates to the characters portrayed, accepting them with all their foibles and follies”.
 TVWorks emphasised that the episode was preceded by a warning, which it argued gave viewers sufficient information and opportunity to make another viewing choice. It alleged that the Authority had previously stated that “the good taste and decency standard assumes that adult viewers will take reasonable measures to inform themselves about what they are watching and accept responsibility for protecting their own sensibilities”.1
 For these reasons, and the factors discussed under Standard 1, TVWorks concluded that the broadcast did not breach Standard 8 and declined to uphold this part of the complaints.
Standard 9 (children’s interests)
 TVWorks argued that it was accepted that children do not normally watch television after 8.30pm on weekdays, except during school holidays. It reiterated that the episode was preceded by a warning, “detailing that the programme was for a mature adult audience and that there was strong language”. TVWorks considered that warnings were especially important for programmes unfamiliar to parents, however it reiterated its view that Outrageous Fortune was “very well known in New Zealand and parents and children are unlikely to have been caught unawares by the content of the show”.
 The broadcaster stated that, while the content of the programme “may be considered unsuitable for young and less mature children by some (and perhaps a majority) of parents, we consider that the series is well known for its sexual content and language (and if not, a warning clearly stated as much), so parents would have been fully informed before making a viewing choice”.
 Accordingly, TVWorks concluded that the programme did not breach Standard 9 and declined to uphold this part of the complaints.
 Dissatisfied with the broadcaster’s response and with the action taken by the broadcaster having upheld part of the complaints, the 21 complainants referred their complaints to the Authority under section 8(1B)(b)(i) and section 8(1B)(b)(ii) of the Broadcasting Act 1989.
 The complainants reiterated the arguments made in their original formal complaints. They stated that they were dissatisfied with the broadcaster’s apology, and that they wished to complain about “the whole programme”, and not just “the ‘c’ word”. They maintained that the programme breached Standards 1, 8 and 9.
 The Authority asked TVWorks for a more detailed explanation of how the broadcast of the word “cunt” at 8.40pm had been allowed to go ahead, and of the pre-broadcast systems referred to in its response to the complainants.
 TVWorks responded:
The programme is produced for us by an independent production house and the word was included in the programme which, at that stage, was scheduled to be screened at 9.30pm. The programme is viewed by our appraisers before it is ingested into our broadcast play out system for transmission. Appraisers assess programming for suitability to screen, make censor edits of material that is not to screen and allocate warnings... When the scheduled time changed the in-house appraisers (censors) required the word to be edited from the programme at the programme preparation editing stage – the programme preparation editor overlooked the instruction.
 TVWorks maintained that the situation resulted from “pure human error”. It said that it was the first instance of an appraiser’s instruction being overlooked, and therefore considered that “this is not a situation where our systems were at fault”. With regard to disciplinary action taken in relation to the person responsible, TVWorks stated that “action has been taken to ensure that operator cannot repeat such an error”.
 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 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm. Guideline 9b states that when scheduling AO material to commence at 8.30pm, broadcasters should ensure that strong adult material is not shown too soon after the watershed.
 We note that the first 10 minutes of the programme contained frequent use of coarse language, including several phrases containing variations of “fuck”. In our view, the excessive coarse language broadcast before 8.40pm clearly constituted “strong adult material” which was broadcast too close to the watershed. We consider that it demonstrated a blatant disregard by the broadcaster for the Adults Only watershed, which is in place specifically to protect child viewers from this type of material. It also ignored the reality that children will not immediately be in bed at 8.30pm, which is expressly recognised in guideline 9b.
 While the programme was preceded by a warning for “language”, we do not consider that it would have adequately prepared viewers for the level of coarse language that dominated the opening section of the programme.
 For these reasons, we are satisfied that the broadcaster did not adequately consider the interests of child viewers by broadcasting the language between 8.30pm and 8.40pm.
 Having reached this conclusion, we must consider whether to uphold the complaints as a breach of Standard 9.
 In Harrison and TVNZ,2 the Authority determined that upholding a complaint under Standard 9 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 1990. In that decision, the Authority described the objective of Standard 9 in the following terms:
In the Authority’s view, the purpose of the children’s interests standard is to protect children from broadcasts which might adversely affect them.
 With that in mind, we must consider whether it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of Standard 9 on this occasion. As noted above, we consider that the language subject to complaint constituted strong adult material that was inappropriate to screen before 8.40pm, when children could reasonably be expected to be watching. We find that upholding a breach of the children’s interests standard on this occasion is proportionate because the broadcaster screened strong adult material too soon after the Adults Only watershed, which is inconsistent with its obligations set out in Standard 9.
 In this respect, upholding the complaints clearly promotes the objective of Standard 9, and therefore places a justified and reasonable limit on TVWorks’ freedom of expression. Accordingly, we uphold the Standard 9 complaints.
 Standard 8 requires that programmes and promos are correctly classified and screened in appropriate time-bands. Outrageous Fortune was classified Adults Only and broadcast at 8.30pm. In order for us to find a breach of Standard 8, we need to make a finding that the programme required a higher classification of AO 9.30pm. The AO and AO 9.30pm classifications are defined in Appendix 1 of the Code as follows:
AO – Adults Only
Programmes containing adult themes and directed primarily at mature audiences.
AO 9.30pm – Adults Only 9.30pm – 5am
Programmes containing stronger material or special elements which fall outside the AO classification. These programmes may contain a greater degree of sexual activity, potentially offensive language, realistic violence, sexual violence, or horrific encounters.
 We note that TVWorks did not uphold the complaints in relation to the use of the word “cunt” under Standard 8. In our view, even though the remainder of the programme was consistent with its AO classification, the use of that word, combined with the frequent use of coarse language in the opening sequences of the programme, clearly amounted to “potentially offensive language” and “stronger material” which warranted restricting the time of broadcast to 9.30pm. In this respect, we note the broadcaster’s acknowledgement that the episode was originally scheduled in that timeslot, and that the necessary “censor edits” were not made in order to ensure the programme complied with its AO classification.
 Accordingly, we find that the programme was incorrectly classified AO, and should have been classified AO 9.30pm.
 Having reached this conclusion, we must decide whether to uphold the complaints as a breach of Standard 8.
 We acknowledge that upholding the Standard 8 complaints would place a limit on the broadcaster’s right to freedom of expression. In Christini and RadioWorks Ltd,3 the Authority determined that upholding a complaint under Standard 8 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 our view, the responsible programming standard exists to ensure, among other things, that broadcasters correctly classify programmes so that viewers are sufficiently informed as to their likely content.
 With that in mind, we must now consider whether it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of Standard 8 on this occasion. We have found that the use of coarse language in this episode of Outrageous Fortune was incorrectly classified AO, went beyond what viewers would expect at 8.30pm, and should have been broadcast in a later timeslot. In this respect, upholding the complaint clearly promotes the objective of Standard 8 (as outlined in paragraph  above). Further, the broadcaster was aware that the content of the programme was intended for the 9.30pm timeslot.
 In these circumstances, we find that upholding the complaints would be a justified and reasonable limit on TVWorks’ freedom of expression. We therefore uphold the complaints that the broadcast breached Standard 8.
 In their referrals, the complainants maintained that the other language used in the programme, aside from the word “cunt”, breached Standard 1. TVWorks did not uphold these aspects of the complaints.
 When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:
 We acknowledge that there are a number of contextual factors which favour the broadcaster’s position, including the classification, an adult target audience, and the expectations of regular viewers of the programme. These factors, however, will not always be sufficient to prevent a programme breaching standards of good taste and decency.
 We have found above that the level of coarse language in the programme warranted a higher classification and a later time of broadcast. While the programme was preceded by a warning for “language”, we do not consider that it would have adequately prepared viewers for the level of coarse language that dominated the opening section of the programme.
 Our primary concern on this occasion relates to the time of broadcast. In particular, we note, and the broadcaster acknowledges, that for its five preceding series Outrageous Fortune was broadcast at 9.30pm. TVWorks has also stated that this series, including the episode subject to complaint, was originally scheduled in that timeslot, and then rescheduled at 8.30pm.
 We acknowledge that the remainder of the episode was relatively moderate in its use of language. However, in our view, the extensive use of coarse language between 8.30pm and 8.40pm went well beyond what most people expect of the 8.30pm timeslot on free-to-air television.
 We therefore find that the language in the programme would have offended a significant number of viewers, and that it was inconsistent with current norms of good taste and decency.
 Having reached this conclusion, we must now consider whether to uphold the complaints as a breach of Standard 1.
 We acknowledge that upholding the Standard 1 complaints would place a limit on the broadcaster’s right to freedom of expression. In Turner and TVNZ,4 the Authority determined that upholding a complaint under Standard 1 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 our view, the primary objective of Standard 1 is to protect against the broadcast of sexual content, violent material, and language that exceeds current norms of good taste and decency in the context in which it was shown.
 We find that upholding a breach of the good taste and decency standard on this occasion would be commensurate with our finding that the programme contained excessive coarse language which went beyond what viewers would expect to see at 8.30pm on free-to-air television. In this respect, upholding the complaints clearly promotes the objective of Standard 1, and therefore places a justified and reasonable limit on TVWorks’ freedom of expression. Accordingly, we uphold the complaints that the language in the programme breached Standard 1.
 Our task on this occasion is to determine whether the action taken by TVWorks, having upheld the complaints that the broadcast of the word “cunt” breached Standards 1 and 9, was sufficient. We note that the broadcaster dealt very promptly with the complaints, upheld this part of the complaints, and apologised to the complainants. TVWorks then investigated its pre-broadcast processes and was satisfied that they were adequate, took disciplinary action against the person responsible for the error that led to the broadcast of the word, and said that the person apologised for any offence caused.
 While we agree that the broadcast of the word “cunt” amounted to a breach of broadcasting standards, we find it strange that the broadcaster chose to consider this word in isolation from the other extensive and explicit coarse language leading up to it. However, taking only that word into account, we consider that the broadcaster’s response was proportionate with the nature of the breach, having upheld the complaints under two standards, and taking the steps outlined above.
 Accordingly, we find that the action taken by the broadcaster in relation to this part of the complaints was sufficient and we decline to uphold the action taken complaints.
For the above reasons the Authority upholds the complaints that the broadcast by TVWorks Ltd of Outrageous Fortune on 12 October 2010 breached Standards 1, 8 and 9 of the Free-to-Air Television Code of Broadcasting Practice.
The Authority declines to uphold the complaints that the action taken by the broadcaster having upheld part of the complaints under Standards 1 and 9 was insufficient.
 Having upheld parts of the complaints, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.
Complainants’ submissions on orders
 Mr Blackburn argued that the “flagrant and serious breaches” of standards by TVWorks warranted a correspondingly serious penalty. He considered that the publication of the decision alone was unlikely to be treated seriously by the broadcaster. He submitted that TVWorks should be ordered to pay the maximum $5,000 costs to the Crown, and to publish an apology in The New Zealand Herald, The Dominion Post, The Christchurch Press, and the Otago Daily Times.
 Mr Cobham was of the view that if TVWorks was ordered to broadcast a statement or an apology it would only encourage people to watch the programme “to see what all the fuss is about”. He considered that, as Outrageous Fortune consistently contained extreme language and sexual material, the Authority should make an order prohibiting its broadcast prior to 9.30pm. Mr Cobham argued that the maximum $5,000 costs to the Crown would not be a sufficient deterrent, and submitted that the broadcaster should be ordered to cease advertising for a 24-hour period, or that that advertising revenue should be donated to a charity.
 Ms Davidson submitted that TVWorks should be ordered to broadcast a statement and to pay the maximum $5,000 costs to the Crown, to discourage the broadcast of “foul language”.
 Mr Flanagan submitted that TVWorks should be ordered to refrain from broadcasting for a period, to broadcast a statement, and to pay $5,000 costs to the Crown.
 Mr Schwabe submitted that the broadcaster should be ordered to pay $5,000 costs to the Crown, and to broadcast a statement summarising the decision which did not repeat the offensive words concerned. He considered that the statement should also be published in newspapers and periodicals aimed at politicians, the legal profession, and educational and family support representatives.
 Mr Smithson argued that, with regard to the word “cunt”, the classification of AO 9.30pm was clearly appropriate, as it was “the strongest of material that any broadcaster could possibly use”. He submitted that TVWorks should be ordered to pay the maximum $5,000 costs to the Crown, and be ordered to broadcast an apology at the same time as the original programme.
 Family First and Ms Stadtlander considered that, as it had numerous opportunities to remove the word “cunt” from the broadcast, TVWorks had demonstrated a level of incompetence. However they maintained that that was not the only offensive part of the programme. They submitted that TVWorks should be ordered to broadcast a statement and an apology at the same time as the original broadcast and to pay the maximum $5,000 costs to the Crown, and that the broadcaster should be warned that a similar breach would result in an order to cease broadcasting for a period. Mr Binks and Ms Cahill made the same submissions with regard to orders.
 The remaining complainants did not make any submissions on orders.
Broadcaster’s submissions on orders
 TVWorks submitted that the publication of the decision was sufficient and that no penalty was warranted. The broadcaster argued that the purpose of the decision was “to inform and set boundaries to be used by broadcasters to make appraising decisions rather than to assuage the outrage of viewers”, and that “this purpose is achieved in a proportionate manner by publication of the decision”.
 TVWorks considered that it was highly unlikely that most of the complainants had watched the programme in its scheduled timeslot, and that they had complained as the result of other media. It was of the view that this suggested that regular viewers were not unduly surprised by the language. TVWorks also noted that the Outrageous Fortune series had ended, so the decision would not result in reviewing the classifications of future episodes.
 The broadcaster said:
The broadcaster was not deliberately pushing the boundaries here – the whole final series of Outrageous Fortune screened at 8.30pm. Censor edits which would have removed the worst language from this part of the episode were mistakenly overlooked and the broadcaster apologised to viewers who were genuinely surprised or offended by the language and took steps to ensure no repeat of the error would occur.
 TVWorks argued that broadcast statements should be used to inform viewers of the “correct situation” and were more appropriate for breaches of the accuracy and fairness standards, to “put right a wrong so viewers are not left with a wrong impression or understanding”. It contended that fines and apologies were “reserved for egregious breaches of broadcast standards where broadcasters have intentionally or without taking due care breached standards in a most serious fashion”. It maintained that, “That is not the case here; the broadcaster made a genuine human error and tried hard to put it right by apologising.”
 TVWorks concluded that in these circumstances any further penalty beyond the publication of the decision would be disproportionate.
 Having considered the parties’ submissions on orders, we are of the view that an order requiring TVWorks to broadcast a statement summarising the upheld aspects of our decision is appropriate. We consider that the statement should be broadcast at the same time as the original programme, immediately preceding the 8.30pm timeslot on a Tuesday evening. We do not consider that publication in other media is warranted.
 Apologies have been ordered rarely and only in exceptional circumstances, and we do not consider that an apology should be made in this case.
 Costs to the Crown are usually ordered to mark a significant departure from broadcasting standards. In our view, given the seriousness of the breaches of Standards 1, 8 and 9 on this occasion, an order of costs to the Crown is warranted. In determining an appropriate costs award we have taken into account previous decisions by the Authority, as well as the fact that TVWorks upheld part of the complaints, and maintains that the breaches resulted from a genuine mistake. In all the circumstances, we consider that an order of $3,000 is appropriate.
 Mr Flanagan submitted that TVWorks should be ordered to refrain from broadcasting for a period. Mr Cobham submitted that the broadcaster should be ordered to cease advertising for a 24-hour period, or alternatively that the advertising revenue from that period should be donated to a charity. We find that the nature of the breaches on this occasion is not so serious that we would order TVWorks to refrain from broadcasting. We note that the Authority does not have the power under the Act to order payment to a charity. Nor does the Authority have the power to order TVWorks to refrain from scheduling Outrageous Fortune before 9.30pm, which was requested by Mr Cobham.
The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:
1. Pursuant to section 13(1)(a) of the Act, the Authority orders TVWorks Ltd to broadcast a statement approved by the Authority. That statement shall:
The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.
2. Pursuant to section 16(4) of the Act, the Authority orders TVWorks Ltd to pay to the Crown costs in the amount of $3,000 within one month of the date of this decision.
The order for costs shall be enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
7 June 2011
The following correspondence was received and considered by the Authority when it determined this complaint:
1 The formal complaint made by each complainant – 15 October to 3 November 2010
2 TVWorks’ responses to the formal complaints – 15 October and 1 November 2010
3 The complainants’ referrals to the Authority – 15 October to 27 November 2010
4 TVWorks’ response to the Authority – 13 December 2010
5 TVWorks’ response to the Authority’s request for further information – 3 February 2010
6 Complainants’ submissions on orders – 24 March to 5 April 2011
7 TVWorks’ submissions on orders – 13 April 2011
1Broadcasting Standards Authority, Freedoms and Fetters: Broadcasting Standards in New Zealand, Dunmore Publishing Ltd, at p73
2Decision No. 2008-066
3Decision No. 2009-142
4Decision No. 2008-112