Ben and Dragicevich and Television New Zealand Ltd - 2010-128
- Peter Radich (Chair)
- Leigh Pearson
- Tapu Misa
- Mary Anne Shanahan
- David Ben
- Gail and George Dragicevich
BroadcasterTelevision New Zealand Ltd
Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
Babel – young female movie character shown exposing her genitals at approximately 9.01pm – allegedly in breach of good taste and decency, children's interests and responsible programming standards
Standard 1 (good taste and decency) – genital nudity brief and indistinct – relevant to storyline – contextual factors – not upheld
Standard 9 (children's interests) – broadcaster adequately considered the interests of child viewers – not upheld
Standard 8 (responsible programming) – movie correctly classified AO – not upheld
This headnote does not form part of the decision.
 A movie called Babel was broadcast on TV One at 8.30pm on Saturday 14 August 2010. The film followed four seemingly unrelated stories about people living in different parts of the world that eventually intertwined and led back to a powerful gun bought by a Moroccan goat herder.
 One of the storylines introduced later in the movie followed a young deaf Japanese girl living in Tokyo. The girl was struggling to come to terms with her mother's suicide and was trying to live life as a normal teenager despite her deafness.
 In one scene, the girl met up with her friends for lunch at a cafe and caught the attention of a group of boys sitting at a nearby table. One of the boys approached the girls, but upon realising that they were deaf, backed away and reported this to his friends who all started laughing. Upset and angry, the girl retreated to the bathroom and said to her friend (in subtitles), “They look at us as if we're monsters”. She went into a toilet cubicle, removed her underwear, and said, “Now they're going to meet the real hairy monster”.
 In the following scene, broadcast at approximately 9.01pm, the girl returned to the table with her friends. She caught the attention of one of the boys and deliberately opened her legs to expose her genitals. The boy reported this to his friends and they all turned to look; the girl opened her legs again. The footage was relatively brief and was shot from a short distance.
 The movie was preceded by the following visual and verbal warning:
This programme is rated adults only. It contains language and nudity that may offend and violence that may disturb some people.
 Gail and George Dragicevich and David Ben made formal complaints to Television New Zealand Ltd, the broadcaster, alleging that the movie breached broadcasting standards.
Mr and Mrs Dragicevich's complaint
 Mr and Mrs Dragicevich contended that while watching Babel at 9pm they were “subjected to watching a teenage girl exposing her genitals full-on” to the audience. They argued that the scene breached standards relating to good taste and decency, responsible programming and children's interests.
 The complainants maintained that children and teenagers would have been watching at this time of the evening and that “this sort of exposure at a young age [would] shape their minds, ideas and actions for the future”. In their view, it was irresponsible programming for TVNZ to broadcast such “10th rate rubbish” on television.
Mr Ben's complaint
 Mr Ben argued that the broadcast breached the good taste and decency standard. He acknowledged that a warning was screened informing viewers that the movie contained nudity, however, he said that he was not expecting to see the “full on frontal view of the vagina of a young girl exposing herself”.
 Standards 1, 8 and 9 and guidelines 9b and 9c of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of these complaints. They provide:
Standard 1 Good Taste and Decency
Broadcasters should observe standards of good taste and decency.
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.
9b When scheduling AO material to commence at 8.30pm, broadcasters should ensure that strong adult material is not shown soon after the watershed.
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,
- watch television through to midday on Saturday and Sunday mornings, and during school and public holidays.
Accordingly, special attention should be given to providing appropriate warnings during these periods.
Broadcaster's Response to the Complainants
 TVNZ contended that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was shown, including the time of broadcast, the programme's classification, the target audience, and the use of warnings.
 The broadcaster noted that the movie screened at 8.30pm, was classified AO, had an adult target audience and was preceded by a verbal and written warning for language, nudity and violence. TVNZ said that the warning for nudity was specifically given because of the scene subject to complaint. The movie's AO rating and warning gave a “precise indication of the type of material the programme would contain and offered viewers ample opportunity to decide if they wished to watch the programme”, it said. Furthermore, TVNZ argued that the preceding scene which showed the girl removing her underwear in the bathroom provided a signpost for viewers that she planned to expose herself.
 TVNZ argued that the scene subject to complaint was “brief”, “fleeting”, and relevant to the storyline. The scene “encapsulated a young woman struggling with her deafness and taking provocative action to show the boys that she was more than just deaf”, it said. The broadcaster argued that the girl's actions portrayed the “typical behaviour of a rebellious teenager”, and were not “pornographic” or intended to “titillate”. Rather, it said, the girl was “making a statement” to the boys in response to the way that they had treated her because of her disability.
 The broadcaster did not consider that a significant number of viewers would have been offended by the nudity in the context in which it screened. Accordingly, TVNZ declined to uphold the Standard 1 complaints.
 For the same reasons, TVNZ maintained that the movie was appropriately classified and that it had sufficiently considered the interests of child viewers, and it declined to uphold the Standard 8 and 9 complaints.
Referrals to the Authority
 Dissatisfied with the broadcaster's response, Mr and Mrs Dragicevich and Mr Ben referred their complaints to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 Mr and Mrs Dragicevich referred to TVNZ's submission that the scene was appropriate in an AO classified movie. They questioned why it was “surmised” that adults wanted to watch “sexual content” in such movies, and said that Babel's AO rating was a “weak classification”. With respect to the movie's 8.30pm screening time, the complainants reiterated their view that unsupervised children were likely to be up and watching, despite the Adults Only watershed.
 Mr Ben argued that for the sake of unsupervised underage viewers, and standards of community morality, the least that TVNZ could have done was “‘blur' out the exposure of the vagina”.
 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 complaints without a formal hearing.
Standard 1 (good taste and decency)
 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:
- Babel was broadcast at 8.30pm on a Saturday
- the movie was classified AO
- the scene subject to complaint screened at approximately 9.01pm
- the programme had an adult target audience
- the movie was preceded by a written and verbal warning for nudity.
 In our view, the genital nudity subject to complaint - though full-frontal and involving a teenage girl - was relevant and important to the storyline. The scene was not sexually-charged or designed to titillate. Rather, it was used to portray the tragic and extreme lengths the character was prepared to go to in order to show that she was a real person, and not just a deaf girl. We consider that the scene was deeply immersed in a long film involving complex adult themes which, in our view, would not have appealed to, nor held the attention of, children.
 While the concept of a teenage girl exposing her genitals to a group of boys may be considered challenging by some viewers, it is our view that the actual visual depiction of this was fleeting and inexplicit. The footage was shot from a distance making the nudity indistinct.
 Taking into account the above contextual factors, we decline to uphold the complaint that the genital nudity breached standards of good taste and decency.
Standard 9 (children's interests)
 Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times - usually up to 8.30pm. We note that Babel was broadcast at 8.30pm during the AO time-band, and that the scene subject to complaint screened at approximately 9.01pm.
 Mr and Mrs Dragicevich argued that unsupervised children were likely to be up and watching at this time of the evening, despite the Adults Only watershed.
 As mentioned above at paragraphs  and , we consider that the genital nudity subject to complaint was brief, indistinct, and immersed in a film that was clearly orientated towards adults. It was not sexualised or intended to titillate viewers. Further, Babel was preceded by a clear and comprehensive warning that alerted viewers to the type of material contained in the programme, allowing them to make informed viewing choices. The scene subject to complaint screened more than half an hour after the AO watershed.
 Taking into account the above factors, we consider that the broadcaster sufficiently considered the interests of child viewers on this occasion, and we decline to uphold a breach of Standard 9.
Standard 8 (responsible programming)
 Standard 8 requires that programmes are correctly classified and adhere to the time-bands set out in the Free-to-Air Television Code. Babel was classified AO and broadcast at 8.30pm. Mr and Mrs Dragicevich argued that the movie's AO rating was a “weak classification”, which we take as an assertion that the content warranted a higher rating.
 The AO and AO 9.30 classifications are defined as follows in Appendix 1 of the Code:
AO – Adults Only
Programmes containing adult themes and directed primarily at mature audiences.
AO – 9.30pm
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.
 For the reasons given above in our consideration of Standards 1 and 9, it is our view that the movie's content was consistent with its AO rating. The movie did not contain any stronger material which warranted a higher classification of AO 9.30pm or restricting the time of broadcast to 9.30pm.
 Accordingly, we decline to uphold the Standard 8 complaint.
For the above reasons the Authority declines to uphold the complaints.
Signed for and on behalf of the Authority
23 December 2010
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Gail and George Dragicevich's formal complaint – 23 August 2010
2. TVNZ's response to the formal complaint – 13 September 2010
3. Mr and Mrs Dragicevich's referral to the Authority – 23 September 2010
4. TVNZ's response to the Authority – 9 November 2010
1. David Ben's formal complaint – 17 August 2010
2. TVNZ'S response to the formal complaint – 13 September 2010
3. Mr Ben's referral to the Authority – 22 September 2010
4. TVNZ response to the Authority – 9 November 2010