BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Nightline – item featured interview with two members of the band Linkin Park who used coarse language – allegedly in breach of good taste and decency

Findings
Standard 1 (good taste and decency) – inclusion of the language was gratuitous and deliberately provocative – no warning given – research supports likelihood of viewers being offended – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]   An item on Nightline, broadcast on TV3 just before 11pm on 15 October 2007, discussed the international success of American band, Linkin Park, and included an interview with two of the band members. At the beginning of the interview, one member said “Fuck you!” in response to the interviewer welcoming them to New Zealand. The interviewer told viewers: “I should explain – I’d made the mistake of telling Chester and Joe our censorship rules in New Zealand are far less intense than back home in America... Of course, that was like telling a horde of starving monkeys you had bananas in your lunchbox.”

[2]   The band members proceeded to use language throughout the interview including phrases such as “lick my scrotum”, “lick my fuckity fuck” and words like “Dick!”, “Satan!”, “Bitch!” and “Motherfucker!” One member commented “You have no idea how good that feels! ...People think America, land of the free... but we’re so oppressed”.

[3]   The band members’ final comments were “we’re... gonna do musical porn theatre... instead of giving you music for your ears we’re gonna stick our dicks in your ear”. The interviewer then concluded the item with a voice-over: “Charming! ...Please send your complaints to the Broadcasting Standards Authority.”

Complaint

[4]   Graham Anderson complained to TVWorks Ltd, the broadcaster, alleging that Standard 1 (good taste and decency) had been breached by screening the item “as its content was not decent and in very bad taste” and “the language uttered... was foul and offensive”.

Standards

[5]   Standard 1 of the Free-to-Air Television Code of Broadcasting Practice is relevant to the determination of this complaint. It provides:

Standard 1 Good Taste and Decency

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.

Guidelines

1a    Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme’s classification (see Appendix 1). The examples are not exhaustive. 
          
1b    Broadcasters should consider – and if appropriate require – the use of on-air visual and verbal warnings when programmes contain violent material, material of a sexual nature, coarse language or other content likely to disturb children or offend a significant number of adult viewers. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.

Broadcaster's Response to the Complainant

[6]   TVWorks emphasised that the item was screened nearly two-and-a-half hours after the Adults Only watershed and had an adult target audience. It argued that regular viewers would not have been surprised by the content, given Nightline’s well-established format and its reputation for regularly broadcasting challenging content, particularly later in the programme. It considered that the same could be said with regard to Linkin Park’s international reputation and trademark rebellious “persona”.

[7]   The broadcaster maintained that it was obvious that the pervasive theme of the interview was of “an American band letting loose in liberal New Zealand”. It argued that the extensive use of coarse language was “clearly exaggerated and provocative” and obviously in response to finding out about New Zealand’s relaxed censorship rules.

[8]   While acknowledging that the material was borderline and some viewers may have found the extensive coarse language offensive, TVWorks considered that the combination of contextual factors was sufficient to mitigate the shock value of the item’s content. It believed that a significant number of Nightline’s adult target audience would not have been offended by the item.

[9]   TVWorks concluded that the item did not exceed currently accepted norms of good taste and decency, and declined to uphold the complaint.

Referral to the Authority

[10]   Dissatisfied with TVWorks’ response, Mr Anderson referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989.

[11]   The complainant reiterated that the language in the interview was “filthy and disgusting” and that he found it extremely offensive. He maintained that such language “has no place on free-to-air television (or anywhere else for that matter)”.

[12]   Mr Anderson contended that the item was pointless and uninformative “free publicity”, and considered that the broadcaster could easily have chosen not to screen it.

Authority's Determination

[13]   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 1 (good taste and decency)

[14]   When the Authority considers a complaint which alleges a breach of good taste and decency it is required to take into consideration the context of the broadcast. On this occasion the relevant contextual factors include:

• the item was broadcast at approximately 10.55pm, nearly two-and-a-half hours after the AO watershed 
• Nightline has an adult target audience 
• Nightline is an unclassified news programme 
• the expectations of regular viewers of Nightline 
• the interview was pre-recorded, not live
• there was no warning that the item contained coarse language.

[15]   The Authority notes that there are a number of contextual factors which favour the broadcaster’s position, including the time the item was broadcast and a target audience of adult viewers. These factors, however, will not always be sufficient to prevent a programme breaching standards of good taste and decency.

[16]   Notwithstanding those contextual factors, the Authority considers that the extensive use of coarse language in the item was gratuitous and intentionally provocative beyond a level that would be acceptable to the reasonable viewer. Research published by the Authority in 2006 indicates that the language used in the Nightline item was of the kind that many New Zealanders consider to be offensive and unacceptable for broadcast.¹

[17]   The Authority notes that the interview was pre-recorded, not live, and therefore the broadcaster had the opportunity to edit out some of the language that was likely to offend. It chose not to do so, and did not broadcast a warning prior to the item. The statement “please send your complaints to the Broadcasting Standards Authority” indicated that the broadcaster was aware that the content was challenging and likely to offend.

[18]   The Authority also disagrees with TVWorks that regular viewers would not have been surprised by the content of the item. It considers that this level of coarse language, particularly in a news programme, would have exceeded the expectations of regular viewers.

[19]   The Authority appreciates that the language was intended to be humorous and light-hearted, rather than abusive or aggressive. This was evident in the way the interview was set up to encourage Linkin Park to take advantage of “censorship rules in New Zealand [that] are... less intense”. However, the Authority considers that this does not justify the extensive use of coarse language.

[20]   Accordingly, the Authority upholds the complaint that the item breached Standard 1 (good taste and decency).

For the above reasons the Authority upholds the complaint that the broadcast of Nightline on 15 October 2007 breached Standard 1 of the Free-to-Air Television Code of Broadcasting Practice.

[21]   Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.

[22]   Mr Anderson submitted that TVWorks should broadcast a statement summarising the decision and the reasons why the complaint was upheld. He also argued that the person responsible for allowing the item to go to air, or the broadcaster if that was not possible, should pay costs to the Crown in the amount of $5,000.

[23]   TVWorks submitted that the outcome of the complaint was penalty enough in the circumstances, given that upheld decisions were widely reported in other media. It argued that a broadcast statement was unnecessary.

[24]   TVWorks stated that the decision had been communicated to the item’s reporter, the executive producer of the programme and the Director of News and Current Affairs, and that the boundaries for good taste and decency in the programme had been adjusted accordingly.

[25]   The broadcaster submitted that costs to the Crown were reserved for serious breaches, and that the language in the item concerned was intended to be humorous and light-hearted, so that the breach was far from the top end of the scale. TVWorks said that it had taken on board the Authority’s ruling and accepted that on this occasion the line dictating what was in good taste had been drawn in the wrong place. It maintained that Nightline had not intended to offend its viewers, and extended an apology to Mr Anderson for the offence caused.

[26]   Having considered the submissions from both parties, and taking into account the nature of the breach, and the fact that the language was intended to be humorous, the Authority concludes that an order is not appropriate on this occasion. It considers that this decision and its publication serve as sufficient notification to broadcasters of the Authority’s expectations in relation to the broadcast of this type of language.

Bill of Rights

[27]   The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determination. The  Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Signed for and on behalf of the Authority

Joanne Morris
Chair
25 June 2008

Appendix

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

1.            Graham Anderson’s formal complaint to TVWorks – 18 October 2007
2.           TVWorks’ response to the formal complaint – 20 November 2007
3.           Mr Anderson’s referral to the Authority – 18 December 2007
4.           TVWorks’ response to the Authority – 17 January 2008
5.           Mr Anderson’s submissions on orders – 4 April 2008
6.           TVWorks’ submissions on orders – 14 May 2008

¹Broadcasting Standards Authority, Freedoms and Fetters: Broadcasting Standards in New Zealand, (Dunmore Publishing Ltd: Wellington, 2006), 95-98.