Baker and 4 Others and TVWorks Ltd - 2007-129
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Bob McCoskrie
- Deborah Baker
- H Taylor
- P K Kinney
- Stephen O'Leary
Channel/StationTV3 # 3
Complaints under section 8 of the Broadcasting Act 1989
Californication – programme contained swear words, discussions of sexual themes, sex scenes (including one involving violence) and implied teenage drug use – allegedly in breach of good taste and decency
Standard 1 (good taste and decency) – language was legitimate for a challenging drama – sex scenes and dialogue concerning sexual themes were integral to the storyline – teenage drug use was implied – contextual factors – not upheld
This headnote does not form part of the decision.
 The first episode of a programme called Californication was broadcast on TV3 at 9.30pm on 8 November 2007. Californication was a black comedy about a self-obsessed novelist named Hank Moody. Hank was suffering from writer’s block and was struggling to raise his 12-year-old daughter, while still holding strong feelings for his ex-girlfriend, Karen, the mother of his daughter. To deal with his problems, Hank engaged in self-destructive behaviour such as drinking and involving himself in a string of sexual relationships.
 The first scene showed Hank going into a church and talking to a statue of Jesus about his writer’s block. A nun appeared and after listening to him talk about his troubles, offered him a “blow job”. The nun then approached Hank and stood in front of him. The sound of a zipper was heard, and with the camera view level with Hank’s chest, the nun descended out of view. Hank put his hand out to block the statue’s view, and said “Sweet baby Jesus, Hank is going to hell”.
 It was then revealed to viewers that Hank was dreaming, and he was shown waking up in bed with the woman who was dressed as a nun in his dream. Hank and the woman were shown lying in bed covered by a sheet, but during part of the scene the woman’s breasts were visible.
 In another scene, Hank’s daughter emerged from his bedroom and asked “why is there a naked lady in your bedroom?” and “there’s no hair on her vagina, do you think she’s ok?”.
 Further into the programme, Hank met a young woman, Mia, at a bookstore. The scene then changed to Hank’s bedroom where they were shown having sex. Mia punched Hank in the face twice during sex. It was later revealed that Mia was the 16-year-old daughter of Bill, Hank’s ex-girlfriend’s new fiancé.
 In another scene, Hank told a woman he had just met “Now you’re giving me that look... like I finger-banged your cat”.
 Later in the programme, Hank and his ex-girlfriend were shown looking for their daughter at a party where a number of teenagers were shown drinking alcohol and about to take drugs. Finding their daughter about to smoke marijuana from a bong, they forcibly removed her.
 Throughout the programme, the characters talked openly about sex and used words such as “fuck”, “shit”, “cock”, “motherfucker”, “slut”, “pussy” and “arsehole”. The sex scenes were shot from the waist up and the women’s breasts were shown.
 The programme was preceded with a verbal and visual warning that stated:
This programme is rated adults only and is recommended for a mature audience. It contains sexual material, language and nudity that may offend some people.
 H Taylor, Deborah Baker, Bob McCoskrie, Stephen O’Leary and P K Kinney all made separate complaints to TVWorks Ltd, the broadcaster, alleging that the programme breached standards of good taste and decency.
Deborah Baker’s complaint
 Ms Baker said that she was “totally disgusted at the sexual content of the programme” and believed that it was pornographic. She stated that the programme contained explicit nudity, sexual acts and perverse dreams.
 The complainant argued that “this sort of programme should not be on our TV screens” and felt that television standards had been breached.
Bob McCoskrie’s complaint
 Mr McCoskrie, the National Director of Family First, stated that the programme featured four explicit sex scenes, teenage drug use, full nudity, constant foul language, explicit sexual innuendo and talk of bestiality. He said that one sex scene involved violence.
 The complainant criticised the inclusion of a “very young girl” as a lead character’s daughter and that the child was “exposed to the worst effects of her father’s sexual antics, including asking why her father’s latest bed-mate had no hair on her vagina”.
 Mr McCoskrie also pointed out that the opening scene involved the lead character “having oral sex with a nun in church”. He argued that television broadcasters were consistently pushing the boundaries of what is normal and acceptable and that they were glorifying and normalising behaviour such as drug and alcohol abuse, pornography, offensive language, degrading treatment of women and violence.
Mrs H Taylor’s complaint
 Mrs Taylor believed the programme failed in the area of good taste and decency. She stated that after having read an article reviewing Californication she had made a request to TVWorks not to air such an indecent programme.
Stephen O’Leary’s complaint
 Mr O’Leary alleged that the item included scenes “showing a nun performing oral sex” and that this was indecent and in bad taste.
P K Kinney’s complaint
 P K Kinney argued that the scene showing a nun involved in a sexual act was in breach of standards of good taste and decency. The complainant alleged that “it would not be an exaggeration to hold that many thousands of women” would have been offended by the scene.
 TVWorks assessed the complaints under Standard 1 of the Free-to-Air Television Code of Broadcasting Practice. 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.
Broadcaster's Response to the Complainant
 TVWorks stated that to constitute a breach of Standard 1 the broadcast material must be unacceptable to a significant number of viewers in the context in which it was shown.
 The broadcaster pointed out that Californication was classified AO and was screened after 9.30pm. It maintained that the programme did not contain any content “that was of extremely bad taste, the strong language was not gratuitous, the sex scenes were not prolonged (there was no frontal nudity at all) nor were they gratuitous given the genre, theme of the series and storyline of the episode”.
 With respect to the opening scene, TVWorks stated that “the sequence in the church only infers Hank is receiving oral sex from a nun”. It pointed out that “once the actor playing the nun in the dream sequence descends past Hank’s chest we do not see her at all, until we realise that she is the girl that Hank is sleeping with while he is having the dream”.
 The broadcaster argued that the term “blow job” was acceptable in a programme classified AO and that nothing in the scene was graphically explicit. It stated “the fact that it is a nun and they are in a church is an important allusion to Hank’s disrespect of things traditionally held sacred – and this is vital to his characterisation”.
 TVWorks said it was unsure whether the complaint regarding “the inclusion of a very young girl as the lead character’s daughter” was referring to the actor or the character. However, it stated that “it must be understood that the circumstances in which she finds herself are inferred” and that the audience did not see her exposed to her father’s “bed-mate”. It considered that the daughter’s dialogue referring to the lack of hair on the woman’s vagina, followed by her enquiry as to the woman’s well-being, “is indicative of the young character’s innocence and resonates with an adult audience caught out by the awkward questions of their children”.
 The broadcaster argued that the inclusion of young characters in the plots of AO rated programmes was integral to “producing engaging and relevant storytelling”. It noted that the same actor had been cast in other adult programmes including Special Victims Unit and Law and Order. It also believed that “part of Hank’s complexity is that he loves his daughter and does his best by her”.
 TVWorks argued that the “talk of bestiality” was limited to a hyperbolic statement during an obnoxious tirade perpetrated by Hank on his blind date. It considered that the comment was acceptable for a programme broadcast at 9.30pm and targeted at an adult audience.
 With respect to the use of the word “fuck” and other strong language, the broadcaster stated that the majority of these occurred during scenes of dramatic conflict. It maintained that there was not a gratuitous amount of swearing given the dramatic context, the time of broadcast and the fact that it “reflects how some people actually talk”. It pointed out that other programmes that contained strong language such as “The ‘F’ Word “ were some of the highest rating programmes in their timeslots and that this demonstrated the acceptability of this language to an adult audience.
 TVWorks argued that the episode did not contain any scenes involving full nudity. It maintained that “of the first four sex scenes, the first could only be called a sex scene because the dialogue included a verbal offer of oral sex”. The broadcaster considered that sex scenes were an integral part of the programme’s theme and that this had been the case for many series broadcast in New Zealand including Sex and the City, Queer as Folk and Sex Inspectors “to name a few”. It maintained that the warning advising of the specific content, the AO rating and time of broadcast offered the opportunity for people to choose not to watch it.
 The broadcaster argued that the sex scene between Mia and Hank was integral to the storyline and while challenging, it did not transgress the boundaries of material suitable for programmes scheduled after 9.30pm. It believed that the scene was not gratuitous as Mia turned out to be the daughter of Hank’s love rival, Bill – the fiancé of his ex-girlfriend. It pointed out that in the next episode “it’s revealed that Bill thinks his daughter is the model of virtue and the scene serves to show the extent of Bill’s naivety”.
 TVWorks considered that the teenage drug use featured in the programme was minor and “very relevant to the theme of Hank trying to be a parent”.
 The broadcaster pointed out that “this was the premier episode of Californication” and there had been significant publicity concerning the subject matter of the programme. It believed that if the audience had not been aware of the publicity, the title itself and the warning that preceded the show would have indicated the type of content that could be expected. TVWorks declined to uphold the complaints that the programme breached Standard 1 (good taste and decency).
Referral to the Authority
 Dissatisfied with TVWorks’ decision, H Taylor, Deborah Baker, Bob McCoskrie, Stephen O’Leary and P K Kinney referred their complaints to the Authority under section 8 of the Broadcasting Act 1989.
Deborah Baker’s referral
 Ms Baker said that while she understood “where the broadcaster was coming from”, she still believed that the programme breached current norms of good taste and decency. She maintained the programme’s use of swear words and explicitness left nothing to the imagination.
Bob McCoskrie’s referral
 Mr McCoskrie reiterated the arguments contained in his formal complaint.
H Taylor’s referral
 Mrs Taylor argued that the fact that the programme had to be preceded with a warning advising viewers that the content may offend was “in itself, an admittance of a breach of Standard 1”. She also noted that some companies had withdrawn advertising during the programme, which was an indication that it was offensive. The complainant maintained that the material contained in Californication breached standards of good taste and decency.
Stephen O’Leary’s referral
 Mr O’Leary maintained that the scene was indecent regardless of the context. He argued that there could be “no context” in which a depiction of a man with his penis in the mouth of a nun under a statue of Christ in a church could not be considered indecent.
 The complainant stated that “according to the last census 55% of New Zealanders” were Christian and that “any Christian would find the idea of the portrayal (explicit or not) of a man receiving fellatio from a nun in a church” indecent.
P K Kinney’s referral
 P K Kinney was dissatisfied with TVWorks’ decision not to uphold the complaint and referred it to the Authority for review.
Complainant’s Final Comment
 Mrs Taylor stated that she had complained about “all further episodes” of Californication and that she wanted all of them to be placed before the Authority for review. The complainant also argued that further episodes should be prevented from being broadcast until the Authority had made its decision.
Broadcaster’s Final Comment
 TVWorks maintained that the Authority could only consider the complaints referred to it about the episode broadcast on 8 November 2007.
 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.
 The Authority notes that Mrs Taylor proposed to complain about the whole series of Californication. However, complaints made under the Broadcasting Act 1989 must relate to specific programmes and the Authority cannot, except in very limited circumstances, consider complaints about a whole series involving episodes that are still being broadcast. In the Authority’s view, no such exceptional circumstances exist in this case.
Standard 1 (good taste and decency)
 When the Authority considers a complaint that alleges a breach of good taste and decency, it is required to take into account the context of the broadcast. On this occasion the relevant contextual factors include:
- the programme was preceded by a verbal and written warning
- the programme was rated AO
- the programme was broadcast at 9.30pm
- audience expectations as a result of publicity prior to the broadcast
- the title of the programme, Californication, indicated that it was likely to contain challenging content.
 With respect to the opening scene involving the nun, the Authority notes that it was presented as an unrealistic dream sequence. It was soon apparent that the “nun” was not a nun, but one of the lead character’s casual sexual partners. No sex or nudity was shown during the brief scene; oral sex was implied through the sound of the zipper and the “nun” descending from view. In the Authority’s view, the church scene was used for dramatic effect and, while it did have some shock value, it was not explicit or gratuitous. Accordingly, the Authority declines to uphold this aspect of the complaints.
 Mr McCoskrie criticised the inclusion of a “very young girl” as a lead character’s daughter and said that the child was “exposed to the worst effects of her father’s sexual antics”. He also criticised the scene in which Hank’s daughter found a naked woman in her father’s bedroom and asked why she had “no hair on her vagina”.
 The Authority considers that the daughter’s questions were asked in an inquiring and innocent manner. Further, the programme did not portray the daughter’s exposure to her father’s “sexual antics” as being positive; it was clear as the story progressed that it had negative consequences. Accordingly, the Authority finds that Standard 1 was not breached in this respect.
 Turning to consider the sex scene in which Mia punched Hank, the Authority is of the view that this scene was among those which emphasised the fact that Hank’s sexual encounters were often more bizarre than satisfying. The Authority notes that Hank was not aware that Mia was only 16 years old until later in the programme, and that after being punched by Mia he laughed at her unusual behaviour.
 The Authority considers that the scene was another example of the extraordinary situations that Hank was finding himself in. It was important to the storyline and, in the Authority’s view, was not designed to titillate viewers. Accordingly, the Authority finds that this scene did not breach Standard 1.
 Looking at the other sex scenes contained in the programme, the Authority notes that none involved full-frontal nudity and they were not protracted. The scenes were matter-of-fact rather than titillating and were important to the programme’s storyline. In these circumstances, it declines to uphold the complaints that the sex scenes breached standards of good taste and decency.
 Mr McCoskrie complained that one scene involved talk of bestiality, referring to Hank telling a woman that she was looking at him like he had just “finger-banged” her cat. The Authority considers that the statement was intended to be humorous and, taking into account the contextual factors in paragraph , finds that it did not amount to a breach of Standard 1.
 With respect to the programme containing scenes of teenage drug use, the Authority notes that the fleeting scenes were entirely in keeping with the storyline. It points out that this was an adult drama screening at 9.30pm, and that the depiction of drug use was implied and occurred during part of a scene in which Hank and his ex-girlfriend were in the process of forcibly removing their daughter from a teenage party she should not have been attending. The Authority considers that the brief scenes of teenagers apparently using drugs did not breach standards of good taste and decency.
 Both Mr McCoskrie and Ms Baker were concerned with the level of “foul language” contained in the programme. In the Authority’s view, while Californication did contain challenging language, it was not excessive or gratuitous given the nature of the programme, the storyline, and the type of characters. In a black comedy which was aimed at adults and broadcast at 9.30pm, the Authority finds that the language did not breach standards of good taste and decency.
 Accordingly, the Authority declines to uphold the complaints that the broadcast of Californication breached Standard 1 (good taste and decency).
For the above reasons the Authority declines to uphold the complaints.
Signed for and on behalf of the Authority
26 March 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Bob McCoskrie’s formal complaint – 9 November 2007
2. H Taylor’s formal complaint – 10 November 2007
3. Deborah Baker’s formal complaint – 13 November 2007
4. Stephen O’Leary’s formal complaint – 19 November 2007
5. P K Kinney’s formal complaint – 29 November 2007
6. TVWorks’ decision on Mr McCoskrie’s complaint – 19 November 2007
7. TVWorks’ decision on Mr and Mrs Taylor’s complaint – 19 November 2007
8. TVWorks’ decision on Ms Baker’s complaint – 19 November 2007
9. TVWorks’ decision on Mr O’Leary’s complaint – 29 November 2007
10. TVWorks’ decision on P K Kinney’s complaint – 10 December 2007
11. Mr McCoskrie’s referral to the Authority – 26 November 2007
12. Ms Baker’s referral to the Authority – 26 November 2007
13. H Taylor’s referral to the Authority – 28 November 2007
14. TVWorks’ response to the Authority on Ms Baker’s referral – 12 December 2007
15. TVWorks’ response to the Authority on Mr McCoskrie’s referral – 12 December 2007
16. TVWorks’ response to the Authority on Mr and Mrs Taylor’s referral – 12 December 2007
17. H Taylor’s further submission – 21 December 2007
18. Mr O’Leary’s referral to the Authority – 24 December 2007
19. P K Kinney’s referral to the Authority – 7 January 2008
20. TVWorks’ response to the Authority on Mr O’Leary’s referral – 16 January 2008
21. TVWorks’ response to the Authority on P K Kinney’s referral – 16 January 2008
22. TVWorks’ response to Mrs Taylor’s further submission – 11 February 2008