Baylis and Television New Zealand Ltd - 2003-023
- P Cartwright (Chair)
- J H McGregor
- Tapu Misa
- R Bryant
- Murray Baylis
BroadcasterTelevision New Zealand Ltd
American Beauty – film - numerous sexual references – offensive – unsuitable for children
Standard 1 and Guideline 1a – context – no uphold
Standard 9 and Guideline 9c – broadcaster was mindful of children – no uphold
This headnote does not form part of the decision.
 The film American Beauty was screened on TV2 at 8.30pm on Sunday 10 November 2002. The film is about a bored middle-aged man who becomes "love-struck" with one of his daughter’s friends. His fantasies lead him to turn his life upside down.
 Murray Baylis complained to Television New Zealand Ltd, the broadcaster, that the sexual references and sexual messages in the film would be offensive to many New Zealanders, especially to people aged 12 – 16 years.
 In response, TVNZ said the highly acclaimed film was preceded with a warning and it considered that most viewers would not be offended. It maintained that parents had plenty of opportunity to switch off before any offending material was screened. It declined to uphold the complaint.
 Dissatisfied with TVNZ’s decision Mr Baylis referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold the complaint.
 The members of the Authority have viewed a video of the film complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The critically acclaimed film American Beauty was screened on TV2 at 8.30pm on Sunday 10 November 2002. It recounts the story of a bored middle-aged man who is "love-struck" with a friend of his daughter. His life is turned upside down as a result of his fantasies.
 Murray Baylis complained to TVNZ about the sexual messages and sexual references contained in the film which he considered would be offensive to most New Zealanders. He contended that the film was unsuitable for 12–16-year-olds who could still be up after 8.30pm. As an example of offensiveness, he referred to one scene where the daughter’s friend spoke about "sucking" her friend’s father’s "big dick".
 TVNZ assessed the complaint under Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice. The Standards, and relevant Guidelines, provide:
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.
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.
Standard 9 Children’s Interests
During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.
9c Broadcasters should have regard to the fact that children tend to stay up later than usual on Friday and Saturday nights and during school and public holidays and, accordingly, special attention should be given to providing appropriate warnings during these periods.
The Broadcaster’s Response to the Complainant
 TVNZ said that much of the film’s sexual content came later in the movie and that the film’s most explicit scene, where the man’s wife engaged in sex with a business competitor, occurred 53 minutes after the start. Furthermore, TVNZ added, sexual activity was indicated more by sounds of passion rather than explicit visuals.
 TVNZ argued that the AO watershed of 8.30pm was widely recognised. There was widespread recognition, it added, that it was the responsibility of parents to decide what children could watch after the watershed, provided they were informed about the programmes being screened. American Beauty, it noted, had been preceded with a written and verbal warning and the AO symbol was superimposed after each commercial break.
 Taking into account these matters of context, along with the film’s reputation, TVNZ contended its content was not outside current norms of good taste and decency, and it maintained that Standard 1 had not been breached.
 Turning to Standard 9, TVNZ said that it had taken into account the interests of children by not screening the film before the 8.30pm watershed. TVNZ accepted that young people could well be viewing at 8.30pm, and said that it ensured that parents were aware of the film’s AO rating. Parents were able to switch off, it wrote, noting:
There has to be some time during the evening when adult material can be screened if television is not to become a cultural wasteland and it is the [complaints] committee’s belief that by confining adult material to 8.30pm and later TV2 complies with the requirements of standard 9. It was pointed out, in passing, that a sexually innocent child would not recognise the meanings of the sexual allusions and depictions in the film so could hardly be harmed by them.
The Referral to the Broadcasting Standards Authority
 Mr Baylis focused his concern on the time of the broadcast, writing: "8.30pm is too early for a movie of this nature to be shown". In view of the sexual references, especially between a middle aged man and a friend of his daughter, it was "highly irresponsible" to screen the film at that hour.
 In response to TVNZ’s comment about parental responsibility Mr Baylis stated that, even in caring families, it was not possible to monitor television for 24 hours a day. He expressed the opinion that American Beauty could be damaging to vulnerable young people aged 12–16 years
The Authority’s Determination
 The film American Beauty was broadcast on TV2 at 8.30pm on Sunday 10 November 2002. The film covers a range of contemporary social issues, including boredom, weariness and family dysfunction in suburban society. Mr Baylis complained that it contained sexual references which were offensive to the majority of New Zealanders, and its broadcast indicated that TVNZ had not been mindful of the 12-16 year-olds who could have been watching the film at that time.
 When it determines a complaint that a broadcast contravenes Standard 1 of the Television Code, the Authority is required to determine whether the language and behaviour complained about breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but does not determine whether the programme breached the standard. Accordingly, the Authority has considered the contextual matters in relation to the film complained about.
 The Authority accepts that the complex film contained both teenage and adult themes. It also notes that there were a number of sexual allusions, some of which were implicit rather then explicit and, as TVNZ explained, the most explicit sexual scene came 53 minutes into the movie. The Authority also notes that the film was preceded with a verbal and visual warning and the AO classification symbol was screened after each commercial break.
 Taking the content of the film into account together with these contextual matters, the Authority concludes that the good taste and decency requirement in Standard 1 was not breached.
 Under Standard 9, broadcasters are required to consider the interests of child viewers during their normally accepted viewing times. The Television Code defines a child as a boy or girl under the age of 14 years.
 The watershed for AO programmes is 8.30pm, the time at which American Beauty began screening. The Authority is aware from its research that all children do not stop viewing at 8.30pm, especially on Friday and Saturday evenings and during school holidays, and that is recognised in Guideline 9c (in para  above).
 American Beauty was screened on a Sunday evening and TVNZ, citing the Authority’s research, wrote that there was widespread recognition of the watershed, and that there was:
… an overwhelming acceptance among viewers that it is the responsibility of parents to decide what their children should watch, provided, of course, that the broadcaster provides the necessary indicators so that adults can make informed choices.
 While the Authority recognises the AO watershed at 8.30pm, the watershed cannot be regarded as a waterfall. The watershed does not mean that an item which is unacceptable at 8.29pm becomes acceptable at 8.31pm.
 In regard to the Standard 9 aspect of the current complaint, the Authority notes, first, that the more adult material developed relatively slowly, and second, TVNZ provided the Authority with information of two small censor cuts which were made before the film was shown. In these circumstances, the Authority does not uphold the Standard 9 aspect of the complaint.
 The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the reasons above, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
20 March 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
- Murray Baylis’ Complaint to Television New Zealand Ltd – 17 November 2002
- TVNZ’s Response to the Complainant – 6 December 2002
- Mr Baylis’ Referral to the Broadcasting Standards Authority – 21 December 2002
- TVNZ’s Response to the Authority – 13 January 2003