BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.] 

Three episodes of a British dating game show, Naked Attraction, were broadcast on TVNZ 2 at 9.30pm on Friday 10, 17 and 24 November 2017. During each episode, a clothed individual selected a date from six naked individuals, who were gradually revealed in stages from the feet up, with no blurring or pixelation of nudity. Six complainants referred their complaints about these episodes of Naked Attraction to the Authority, complaining that the programme contained a high level of full frontal nudity and sexual discussion, which was offensive and contrary to standards of good taste and decency. The complainants also submitted that the programme denigrated, or was discriminatory towards, both participants and viewers, and was broadcast at a time on a weekend night when children were likely to be watching. The Authority did not agree with the complainants that this programme ought not to have been broadcast at all. It observed that, while the programme may not have been to everybody’s taste, it contained many body-positive messages and those involved in the programme spoke positively of their experiences. However, the Authority upheld the good taste and decency complaints on one aspect, finding the pre-broadcast warning did not adequately signpost the extent of nudity and sexual references in the programme for viewers.

Upheld: Good Taste and Decency. Not Upheld: Children’s Interests; Discrimination and Denigration 

No Order

Introduction

[1]  Three episodes of a British dating game show, Naked Attraction, were broadcast on TVNZ 2 at 9.30pm on Friday 10, 17 and 24 November 2017. During each episode, a clothed individual selected a date from six naked individuals, who were gradually revealed in stages from the feet up, with no blurring or pixelation of nudity. Following the individual’s selection of their preferred date, and footage of the couple’s (fully clothed) date, the individuals talked about their experience. The participants who were not selected for a date also discussed their experience of being on the show and appearing naked.

[2]  Six complainants made formal complaints to the broadcaster, TVNZ, about the episodes in this series referred to above. The complaints were not upheld by TVNZ, and so have been referred to us for our consideration on the basis the complainants were dissatisfied with the broadcaster’s response.

[3]  We have previously considered complaints referred to us about the first two episodes in this series, which are addressed in the Authority’s decision: 13 Complainants and Television New Zealand Ltd, (Decision 2017-101). The complaints now before us raise similar issues. We have however considered each complaint and each episode now before us on its own merit.

[4]  The complainants in this case submitted that the programme contained a high level of full frontal nudity and sexual discussion, which was offensive and contrary to standards of good taste and decency. They submitted that the programme was broadcast on a weekend evening at a time when children stay up later and were likely to be watching. Two complainants also submitted that the programme was discriminatory towards, and denigrated, participants and viewers.

[5]  One complainant also raised concerns about the broadcast of Naked Attraction on 3 November 2017. Our views on that episode of the programme are recorded in Decision 2017-101 and we consider that our findings and reasoning in that decision apply to the complaint before us now, concerning that episode. We have therefore not addressed this particular episode in this decision.

[6]  The issue is whether the three episodes of this programme broadcast on 10, 17 and 24 November 2017, breached the good taste and decency, children’s interests and discrimination and denigration standards of the Free-to-Air Television Code of Broadcasting Practice.

[7]  The members of the Authority have viewed the episodes complained about, have read the correspondence listed in the Appendix and have given careful thought to the issues raised by the complainants.

Freedom of expression

[8]  The starting point in our consideration of broadcasting standards complaints is to acknowledge the importance of the right to freedom of expression. This includes the right of broadcasters to impart ideas and information, and the public’s right to receive that information. Our task is to weigh the value of the broadcast (and the importance of the expression) against the level of actual or potential harm that might be caused by the broadcast.

[9]  Internationally, Article 19(2) of the International Covenant on Civil and Political Rights (ICCP), ratified by New Zealand in 1978,¹ states that, while there may be certain restrictions:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, or in print, in the form of art or through any other media of his choice.

[10]  Article 19(2) of the ICCP grants the right to communicate and to receive opinions, information and ideas, subject only to prescribed limitations, no matter what the content.² The Human Rights Commission has stated that content neutrality – the idea that expression should not be restricted because of its message, ideas, subject matter or content – is a bedrock principle of the right to freedom of expression, as outlined in the ICCP.³

[11] In New Zealand, principles of freedom of expression are enshrined in our constitutional law by the New Zealand Bill of Rights Act 1990 (NZBORA), at section 14:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form. [Our emphasis]

[12]  The High Court has stated that freedom of expression, as outlined in NZBORA, grants ‘the right to everyone to express their thoughts, opinions and beliefs however unpopular, distasteful or contrary to the general opinion of others in the community’.⁴ The Court of Appeal has said that the right is ‘as wide as human thought and imagination’.⁵

[13]  However, the broadcasting standards system recognises that the right to freedom of expression is not an absolute right and it may be restricted, where such a restriction is reasonable and justified in a fair and democratic society. When we assess whether the exercise of the right ought to be restricted in broadcast content, we weigh the value of the particular broadcast against the actual or potential harm that may be caused by that broadcast, either to individuals or to society generally.

[14]  When undertaking the assessment of the value of the broadcast, we recognise that different types of speech might hold different value. Our oversight of New Zealand broadcasting content, while ‘viewpoint neutral’,⁶ is therefore not entirely ‘content neutral’. For example, there are generally said to be three core values that the right to freedom of expression is designed to protect:⁷ the discovery of truth or the ‘marketplace of ideas’, democratic self-government and self-fulfilment. Political, religious, or artistic speech can therefore be defined as ‘high-value speech’, while popular entertainment, which is the type of speech we are assessing here, can be defined as ‘mid-value speech’.⁸

[15]  The level of public interest in a broadcast is also important. If a broadcast deals seriously with political issues or other topics that help us to govern ourselves, hold our leaders accountable, or contribute to our search for truth and knowledge, it will carry a high level of public interest.⁹

[16]  In summary, freedom of expression is an important right. It is critical to our democracy. The cost of our having this freedom means that, at some times, the exercise of freedom of expression may cause offence to be taken by some or will result in harm being felt by some. In those jurisdictions where the principles of freedom of expression are valued and enforced, there can be a tension between these principles and those principles designed to protect morality. The approach generally taken in liberal democracies is to endorse freedom of expression rather than censorship. In these jurisdictions it has been said that the concept of freedom of expression is so important that it needs to be supported, even if the cost is that the sense of morality of some people may be offended. Those societies recognise and value the freedom to make informed choices based on individual senses of morality and personal preferences.

[17]  Ultimately, we must strike the appropriate balance between the right to freedom of expression on one hand, and on the other, the harm that might be caused to people in society through the breach of broadcasting standards.¹⁰

Overview of findings

[18]  The complainants have submitted that the broadcast caused harm through its explicit nudity – its commoditisation and superficial discussion of human bodies, and exposure of this type of material to children and those in our communities who are sensitive or vulnerable to it. We accept, and we have noted below, that the level of explicit full frontal nudity in Naked Attraction was high. Additionally, in episodes 3 to 5, the discussion of sexual preferences and activity was more explicit than in earlier episodes. We have acknowledged that Naked Attraction, as popular entertainment, is mid-value speech, and we consider it has low value in terms of public interest.

[19]  However, for the reasons we express below, having viewed these episodes and considered the complaints before us, we have reached the same view as we did in Decision 2017-101 – that overall, we consider these episodes were acceptable for broadcast. There was a positive element to this programme, and to say that it should not have been broadcast at all would in our view represent a disproportionate restriction on the right to freedom of expression. This programme addressed real aspects of human social behaviour. It was descriptive and good humoured in its evaluation of human behaviours and attitudes, and some viewers would have found this programme to be entertaining. Audiences should have the freedom and capacity to make viewing and listening choices, and it is not our role to declaim against broadcasts which some may consider to be in poor taste or ‘indecent’, provided they do not cause harm at a level requiring our intervention.

[20]  However, as we explain below from paragraph [35], we accept that the content may not have been to everyone’s taste and we do not consider the content of the programmes was adequately signposted for viewers in the pre-broadcast warning. While the right to freedom of expression allows us to make choices about what we watch, it is important that we are able to make informed choices. Classifications, the time of broadcast and warnings allow viewers to make an informed choice about what they are exposed to. In this case, while there was a pre-broadcast warning for ‘nudity’, this was not sufficient to advise viewers about the sexual references made throughout the episodes, which in this case we consider went further than in the first two episodes.

[21]  We therefore find that, in this case, the value of the broadcast and the public interest in the broadcast was outweighed, as audiences were not provided with an adequate or specific warning for sexual content or references. Accordingly we uphold the good taste and decency complaints on this one aspect. We are satisfied that this restriction is reasonable and proportionate. We are not saying that this programme should not have been broadcast at all, but that it required a more explicit warning for sexual references to allow audiences to make informed viewing choices.

[22]  We have reached this view taking into account the various matters considered in Decision 2017-101. In this decision we therefore adopt the principles applied in Decision 2017-101 and set out below our reasons for the findings on the episodes that are subject to the complaints now before us.

Did these episodes of Naked Attraction threaten current norms of good taste and decency?

[23]  The purpose of the good taste and decency standard (Standard 1) is to protect audience members from listening to or viewing broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards. Broadcasters should take effective steps to inform audiences of the nature of the programme, and enable listeners to regulate their own and children’s listening or viewing behaviour.¹¹

[24]  As stated above and for the reasons set out below, we consider that these programmes were acceptable for broadcast. However, we do not consider the content of the programmes was adequately signposted for viewers in the pre-broadcast warning, and accordingly we uphold the good taste and decency complaints on this one aspect.

The complainants’ submissions

[25]  The complainants’ submissions can be broadly summarised as follows (many of the complaints raised similar points):

• The programme was saturated with full-frontal nudity and adult, sexually-charged discussion, which was offensive and contrary to standards of good taste and decency.
• The content was akin to, or fit the definition of, pornography. It was disturbing that young teenagers, whom parents and caregivers are trying to protect, could view pornographic material on free-to-air television.
• While the programme was rated AO and carried a warning for nudity, this did not give a sufficient indication of the programme’s content. 
• The programme screened at 9.30pm on a weekend night when children were likely to be watching.
• The programme attempted to dehumanise its participants. It exploited and degraded men, women and human relationships, and promoted voyeurism and a porn culture which is harmful to our society and particularly to young people.
• It is detrimental for adolescents, many of whom already have anxiety about their physical appearance, to hear body parts being criticised for size or shape. This will contribute to body image issues, self-hatred, mental illness and possibly suicide.
• The programme was gratuitous, designed to titillate and did not carry any educational or medical value.

The broadcaster’s submissions

[26]  TVNZ did not consider the episodes breached standards of good taste and decency, or that they would have offended a significant number of viewers taking into account the context. TVNZ submitted:

• The aim of the programme is to explore what people find physically attractive and whether choosing a partner based on physical attraction alone can help people find their ideal partner. The participants then go on a clothed date to see if their physical attraction is matched after getting to know the person. The experiences of the participants, presented in their own words during the programme, were universally positive.
• The episodes contained full-frontal nudity and adult discussions containing some sexual inferences. These were matter-of-fact and not designed to titillate.
• It is established in Authority decisions that it is acceptable to see naked people, including genitalia, on free-to-air television. In this case, as the nudity was somewhat sexualised, the programme was rated AO (rather than G or PGR).¹²
• Other decisions by the Authority concerning nudity and sexual content in the AO timeband were not upheld as a breach of standards.¹³
  
• The Films, Videos and Publications Act 1993 does not restrict publications based on nudity alone.
• The content of the Naked Attraction episodes did not amount to pornography, ‘paedophile material’ or ‘prostitution’.
• The programme was classified Adults Only and screened at 9.30pm, more than an hour after the 8.30pm AO watershed. After 9.30pm is not considered children’s normal viewing time.
• There is an expectation that material screened after 9.30pm may contain strong adult content and a greater degree of sexual material and offensive language.
• There is also an expectation that parents and caregivers monitor children’s viewing of AO material. Technology enabling parents to block content is available on SKY, Freeview and Smart TVs.
• The programme was preceded by a written warning which stated: ‘AO: This programme is rated adults only. It contains nudity.’

Our analysis

[27]  The purpose of the good taste and decency standard is to protect audience members from viewing broadcasts that are likely to cause widespread undue offence or distress, or ‘undermine widely shared community standards’. Attitudes towards taste and decency differ widely, and continue to evolve. As we have said in Decision 2017-101, while the feelings of the particularly sensitive cannot be allowed to dictate what can be broadcast, there are limits to what can be broadcast. The broad limit is that a broadcast must not significantly violate community norms of taste and decency.¹⁴

[28]  We accept that some people would find the content of this programme challenging and unacceptable, as the extent of nudity in the programme was high. This naturally followed as the programme was substantially about the naked human body. However, nudity in itself is unlikely to breach broadcasting standards. This is evident from numerous previous decisions of this Authority, particularly where, prior to the broadcast of the programme, there is a clear warning for nudity.¹⁵

[29]  We found in Decision 2017-101 that the programme, aside from featuring nudity, also contained sexual content requiring a specific warning. In our view, episodes 3 to 5 of this programme contained more explicit discussion of sexual preferences or activities, compared to the first two episodes considered in our previous decision. It is arguable that these episodes contained discussion, between contestants and the presenter, that was more descriptive and, at times, instructive, about sexual activity.

[30]  We have nevertheless reached the view that these references did not take the programme beyond what could be expected from an Adults Only programme broadcast at 9.30pm, and that the episodes as a whole were not contrary to standards of good taste and decency. Sexual activity was discussed, but not displayed visually, and the discussions were good humoured. In our opinion, as we found in Decision 2017-101, the programme presenter during these episodes was able to keep what could have been an unsatisfactory programme at a level where the course of the discussion was adeptly steered and where the tone was kept light and, oddly, it may seem because of the content, acceptable. The overall tenor was supported by the intermittent presentation in voiceovers, of research findings or anthropological theories regarding why a person may be inherently or biologically wired to be attracted to certain physical attributes.

[31]  Further, while episodes 3 to 5 could be seen as more lewd or racy, these were broadcast later in the programme’s season and following a wide range of media attention and commentary.¹⁶ Viewers were therefore likely to be more aware of the type of content presented in Naked Attraction (notwithstanding our finding that the programme warning was inadequate).

[32]  We have looked carefully as well at the complaints which suggested that the programmes were pornographic in the sense that they were designed to invoke sexual arousal, or create sexual excitement. In our judgement, they were not pornographic. They did have unusual levels of explicit nudity but it was dealt with in a clinical and matter-of-fact way. No sexual activity was displayed. There were discussions about sexual activity but these were light hearted and good humoured. These were, after all, discussions about fundamental parts of human behaviour and we think that discussions about these topics in this context was permissible. If we saw sexist, exploitive or degrading conduct, our approach to these programmes would have been very different.

[33]  We therefore think that the subject matter was approached carefully. The programme was a matter-of-fact examination of the human body and the topic of attraction. It did not in our opinion obviously threaten current norms of good taste and decency or cross the line of what is acceptable for an Adults Only programme broadcast at 9.30pm.

[34]  However, as we noted in Decision 2017-101, a key issue is whether the suite of information and protections available to viewers enable them to make an informed choice about what to watch (for example, the programme classification, time of broadcast and any warnings) were used effectively by the broadcaster. In other words, for those who did not wish to be exposed to this kind of content, including the nudity and sexual discussions, were they given a reasonable opportunity to make that choice for themselves and for any children in their care?

[35]  We acknowledge there was a pre-broadcast warning for ‘nudity’, and that the programme’s title and promotional material, as well as the earlier episodes, also signalled the programme would contain nudity.

[36]  However, we consider that the warning was not sufficient in this case. This programme went beyond nude images and explored sexual issues, albeit in a matter-of-fact way. It is evident from the Adults Only classification and later 9.30pm time of broadcast that the broadcaster identified the stronger content of the programmes.

[37]  As we have noted above in our discussion of freedom of expression, the level of choice and control that viewers and listeners have over content they expose themselves to impacts on our assessment of whether broadcasting standards have been breached, particularly when it comes to issues of good taste and decency and the protection of children. We value our ability to exercise choice when it comes to what we watch in the privacy of our own homes, as well as the opportunity to be able to prevent children and young people from viewing certain content that may be inappropriate. The freedom and capacity of an audience to make these choices is a significant factor in determining what is, and what is not, acceptable to broadcast.

[38]  We value our freedoms of choice in all aspects of life. We are constantly balancing or trimming our exposures to determine what is acceptable. Our days are made up of a series of choices from what we eat to how we dress, to where we go. We have the ability and freedom to make choices that keep us within our comfort zones, or which push us and expand our horizons. When we watch television, we choose the time that we would like to watch and we make choices as to which channels we like and which programmes we prefer. We have the ability to change the channel or to switch the television off. These are the freedoms that we cherish and we need to be cautious in imposing limitations.

[39]  In a broadcasting context, audience expectations are therefore crucial. As we have discussed above, in order to make informed choices about broadcast material, it is important for audiences to be presented with sufficient information about a programme so that they can decide for themselves whether they would like to watch or continue watching, or manage their children’s exposure.

[40]  While we have found that the content of this programme was acceptable for Adults Only viewing at 9.30pm, the sexual references in these episodes elevated the programme to another level, beyond simply depicting nudity. Some viewers may have found the more detailed descriptions of sexual preferences and activity by the participants unduly confronting, and they were more likely to be offended in the absence of an explicit warning for sexual content. The extent of nudity and sexual references in the programme was not sufficiently signposted for viewers, meaning they did not have all of the information they needed to decide whether to watch or continue watching.

[41]  Accordingly, notwithstanding our view that overall the content was acceptable for the timeslot, we uphold the Standard 1 complaints on this one ground, that the programmes required a stronger warning to fairly reflect the nature of the content. We are satisfied that this finding does not unreasonably restrict the right to freedom of expression. Warnings are an important tool used by viewers and a vital part of the package of information available to them, to enable them to regulate their viewing and to make informed viewing choices. As the good taste and decency standard recognises, viewers are much less likely to be offended, and the standard is less likely to be breached, where the audience is adequately prepared for what is to come.

Did the broadcaster adequately consider children’s interests?

[42]  The children’s interests standard (Standard 3) states that broadcasters should ensure children can be protected from broadcasts which might adversely affect them. Children’s normally accepted viewing times are usually up until 8.30pm, and/or during G or PGR programming.

The parties’ submissions

[43]  The complainants did not make separate submissions under the children’s interests standard, in addition to the points made under Standard 1.

[44]  In addition to its submissions on good taste and decency, TVNZ made the following points:

• After 8.30pm is not considered to be children’s normal viewing time, even on a Friday evening, and broadcasters are permitted to screen AO material after this time.
• TVNZ ensured child viewers could be protected from content which might adversely affect them by classifying the programme AO, screening an appropriate warning, and scheduling the programme after 9.30pm.
• The Authority has previously noted that ‘Parents must take some responsibility for what their children view after 8.30pm. The 8.30pm watershed marks the end of children’s viewing times and the beginning of the AO timeband, regardless of the seasons and whether or not it is daylight saving.’¹⁷

Our analysis

[45]  Notwithstanding our decision to uphold one aspect of the complaints as a breach of Standard 1, we are satisfied that the broadcaster nevertheless adequately considered the interests of child viewers.

[46]  As the broadcaster correctly notes, 8.30pm marks the beginning of the Adults Only timeband on free-to-air television, after which the broadcaster is permitted to broadcast AO programming. This programme was clearly rated AO and broadcast a full hour after the AO watershed. This programme was therefore broadcast in the time zone where adult material is permitted to be broadcast. The concept of freedom of expression means that adults are entitled to receive adult material and broadcasters are entitled to deliver it to them. It is accepted that at certain times material unsuitable for children (which this was) may be broadcast. Ultimately we cannot limit what adults should be allowed to see within the confines of community safeguards (such as timebands, classifications and warnings), on account of what some children may see despite those safeguards.

[47]  While we acknowledge children may stay up later on the weekend, this does not alter the fact that the programme was clearly signalled as being unsuitable for child viewers. At that point, we consider the broadcaster has taken reasonable steps to ensure children can be protected from the content, and the responsibility falls to parents and caregivers to exercise discretion.

[48]  Accordingly, we do not uphold the complaints under Standard 3.

Did these episodes of Naked Attraction encourage the denigration of, or discrimination against, any section of the community?

[49]  The objective of the discrimination and denigration standard (Standard 6) is to protect sections of the community from verbal and other attacks. The standard protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

[50]  ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment. ‘Denigration’ is defined as devaluing the reputation of a class of people.¹⁸

[51]  Reflecting the importance of the right to freedom of expression in a democratic society, guideline 6b to the standard states that a high level of condemnation, often with an element of malice or nastiness, will be necessary to conclude that a broadcast encouraged discrimination or denigration in contravention of the standard.

The parties’ submissions

[52]  In addition to the submissions raised under Standards 1 and 3, complainants argued that:

• Naked Attraction denigrated its participants and viewers, and was discriminatory.
• The commentary and critique of participants’ genitals was akin to a ‘meat market’ and was dehumanising.

[53]  TVNZ submitted in relation to this standard:

• It did not agree that the programme would lead to the denigration or discrimination of any section of the community.
• The programme was inclusive and portrayed ‘real people’, rather than an idealised or unrealistic version of human attractiveness.
• There was no level of condemnation, malice or nastiness. Contestants were overwhelmingly positive about their experience on the programme and expressed that being naked on the show was good for their self-esteem.

Our analysis

[54]  When assessing whether a broadcast ‘encouraged’ discrimination or denigration, we consider, among other factors: the language used; the tone of any comments made; the forum in which the comments were made; whether the comments appeared intended to be taken seriously; and whether the comments were repeated or sustained.¹⁹

[55]  As we have said, we think the tone of this programme was positive. The participants’ and host’s discussions were good humoured and participants, aside from admitting some nerves, were generally positive about their experience of being on the show.

[56]  We acknowledge the concerns raised by the complainants under this standard, which categorised this programme as a type of ‘meat market’ where human beings are objectified or dehumanised. We have carefully considered this submission against the broadcasts, but have found that, given the tone of the programme, there was no element of humiliation or exploitation of participants, or of viewers, human beings or human relationships generally. The overall messaging about body image and self-esteem in this programme was positive and encouraging, that there are no rights or wrongs in bodily features and that everyone can be proud of what they have been given.

[57]  Taking these contextual factors into account, we are satisfied that the comments made during the programme did not amount to, and would not be received by viewers as, either hate speech or a sustained attack on a particular group. We do not consider that the programme could reasonably be interpreted as actively encouraging the different treatment of, or devaluing the reputation of, any section of the community. In our view upholding this aspect of the complaint would place an unreasonable limit on the right to freedom of expression.

[58]  Accordingly, we do not uphold the complaint under Standard 6.

 For the above reasons the Authority upholds the complaints that the broadcast by Television New Zealand Ltd of three episodes of Naked Attraction on 10, 17 and 24 November 2017 breached Standard 1 of the Free-to-Air Television Code of Broadcasting Practice. 

[59]  Having upheld one aspect 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.

The parties’ submissions on the provisional decision and orders

[60]  We received submissions from one of the complainants to this decision, who said he was ‘disillusioned’ with the Authority’s decision. He argued that the right to freedom of expression did not ‘give licence to inflict visual indecency on the innocence of children’ and said he was concerned that the Authority’s decision ‘will keep the door open to further abuse of the innocence of children by broadcasters’.

[61]  TVNZ submitted that it believed that the suite of measures taken at the time of screening the programme, including the extensive pre-publicity about the nature of the programme, the later time of broadcast, the programme’s classification and the audience advisory, were consistent with broadcasting standards. However, it had taken the Authority’s decision on board for any future broadcast of the programme and, as such, submitted that publication of the Authority’s decision was sufficient penalty in the circumstances.

The Authority’s response to submissions

[62]  In relation to the parties’ submissions on the provisional decision, we do not consider that the submissions alter our findings overall. We are satisfied that the decision, as it stands, clearly communicates our views on the right to freedom of expression and its application to these complaints, particularly at paragraphs [8] to [17], [18] to [22] and [37] to [41].

[63]  When the Authority upholds a complaint, whether in whole or in part, we may make orders, including directing the broadcaster to broadcast and/or publish a statement, and/or pay costs to the Crown.

[64]  Having carefully considered the submissions received, we are of the view that publication of the decision is a sufficient response in the circumstances. We have upheld only one aspect of these complaints, finding that the warning broadcast was insufficient to inform viewers about the nature of the programme. In this respect, we consider our decision provides clear guidance to broadcasters and to the public about the importance of audience advisories and the deficiency of the warning in this case. We also note that TVNZ has advised it has taken the Authority’s decision on board for any future screenings of this programme, which we expect will prevent a similar breach being repeated.

[65]  Finally, and as we noted in Decision 2017-101, we wish to record that we found the determination of these complaints to be challenging. The complaints raised important issues about New Zealand society and the value we place on freedom of expression, and we acknowledge the complainants’ efforts in raising their genuine concerns with us.

Signed for and on behalf of the Authority

Peter Radich
Chair
22 May 2018

 
Appendix

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

Sex Addiction Specialists Aotearoa’s formal complaint

1    SASA’s formal complaint – 27 November 2017
2    TVNZ’s response to the complaint – 20 December 2017
3    SASA’s referral to the Authority – 20 December 2017
4    TVNZ’s response to the Authority – 27 February 2018

Lloyd Brewerton’s formal complaint

5     Lloyd Brewerton’s formal complaint – 5 December 2017
6     TVNZ’s response to the complaint – 21 December 2017
7     Mr Brewerton’s referral to the Authority – 3 January 2018
8     TVNZ’s response to the Authority – 27 February 2018

Roland Green’s formal complaint

9     Roland Green’s formal complaint – 27 November 2017
10   TVNZ’s response to the complaint – 20 December 2017
11   Mr Green’s referral to the Authority – 21 December 2017
12   TVNZ’s response to the Authority – 27 February 2018
13   Further comments from Mr Green – 19 March 2018 and 13 April 2018
14   TVNZ’s submissions on the provisional decision and orders – 27 April 2018
15   Mr Green’s submissions on the provisional decision and orders – 3 May 2018

Matthew Malloy’s formal complaint

16   Matthew Malloy’s formal complaint – 23 November 2017
17   TVNZ’s response to the complaint – 15 December 2017
18   Mr Malloy’s referral to the Authority – 21 December 2017
19   TVNZ’s response to the Authority – 27 February 2018

Mike Power’s formal complaint

20   Mike Power’s formal complaint – 11 December 2017
21   TVNZ’s response to the complaint – 20 December 2017
22   Mr Power’s referral to the Authority – 20 December 2017
23   TVNZ’s response to the Authority – 27 February 2018

Kate Rooney’s formal complaint

24   Kate Rooney’s formal complaint – 11 December 2017
25   TVNZ’s response to the complaint – 20 December 2017
26   Ms Rooney’s referral to the Authority – 20 December 2017
27   TVNZ’s response to the Authority – 27 February 2018

¹ Reporting status for New Zealand, CCPR, United Nations Human Rights, Office of the High Commissioner

² Human Rights in New Zealand 2010 – Nga Tika Tangata O Aotearoa 2010, Section Two – Civil and Political Rights, Part 9 – Freedom of Opinion and Expression, Human Rights Commission, at 124

³ As above  

⁴Solicitor General v Radio New Zealand Ltd [1994] 1 NZLR 48 at [59]

⁵Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA)

⁶ Viewpoint neutrality is the principle that speech should not be regulated on the basis of the particular ideology being advanced. Speech that is unpopular, radical, or politically unfavourable should still be protected, no matter how unpalatable (see Moving from Self-Justification to Demonstrable Justification – the Bill of Rights and the Broadcasting Standards Authority, Geiringer and Price, extract from Law, Liberty, Legislation, Jeremy Flynn and Stephen Todd (eds), LexisNexis NZ, 2008, at 324)

⁷ Geiringer and Price, above, at 320

⁸ Above, at 322

⁹ Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6

¹⁰ As above

¹¹ Guideline 1b to Standard 1 – Good Taste and Decency

¹² For example, Keatinge and Television New Zealand Ltd; Decision No. 2012-016; Hutt and Television New Zealand Ltd, Decision No. 2009-103; Cheyne and Television New Zealand Ltd, Decision No. 2007-116

¹³ For example, Ross and Māori Television Service, Decision No. 2017-045; Hall and Television New Zealand Ltd, Decision No. 2010-169; Ben and Dragicevich and Television New Zealand Ltd, Decision No. 2010-128; Woodham and TV3 Network Services Ltd, Decision No. 2003-118

¹⁴ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12

¹⁵ See footnotes 2 and 3 above

¹⁶ See, for example: Uncensored nude dating show causes a stir after hitting Kiwi screens, NZ Herald, 26 November 2017; Naked Attraction: What on earth compels people to get naked and sexy for TV shows?, Stuff Opinion, 26 November 2017; I might have been wrong about the whole Naked Attraction thing, Stuff Opinion, 28 November 2017

¹⁷ Fourie and Television New Zealand Ltd, Decision No. 2012-002

¹⁸ Guideline 6a

¹⁹ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16