Bennett and Television New Zealand Ltd - 2008-015
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Michael Bennett
ProgrammeEating Media Lunch
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Eating Media Lunch – message “Kill Yourself Now” flashed on the screen for a split second – allegedly in breach of good taste and decency, law and order, programme information and children’s interests
Standard 1 (good taste and decency) – contextual factors – not upheld
Standard 2 (law and order) – item did not encourage viewers to break the law or promote, condone or glamorise criminal activity – not upheld
Standard 8 (programme information) – action taken by the broadcaster sufficient – not upheld
Standard 9 (children’s interests) – standard not applicable – not upheld
(This headnote does not form part of the decision.)
 During an episode of Eating Media Lunch, broadcast on TV2 at 10pm on 2 November 2007, the message “Kill Yourself Now” was displayed on the screen just before the programme’s opening credits. The message was only visible for a fraction of a second.
 The programme was preceded by a verbal and written warning that stated:
This programme is rated adults only. It contains language and sexual material that may offend some people.
 Michael Bennett made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging standards of good taste and decency, law and order, programme information and children’s interests had been breached. He argued that the message “Kill Yourself Now” had flashed onto the screen in a subliminal manner. He contended that the message had only lasted for “3 or 4 frames of the 25 in each second” and that “this method of subliminal advertising” had been banned world-wide.
 The complainant stated that he had been deeply offended by the message and believed that suggesting suicide was both irresponsible and illegal. He considered that subliminal messaging was a powerful tool for implanting ideas into a viewer’s subconscious.
 Mr Bennett pointed out that the episode was available on TVNZ’s website and that this meant children and teenagers with access to a computer could watch the programme at any time. He stated that “children and teenagers are vulnerable and this sort of subliminal message may well push a depressed young person over the edge”.
 TVNZ assessed the complaint under Standards 1, 2, 8 and 9, and guideline 8b of the Free-to-Air Television Code of Broadcasting Practice. These 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.
Standard 2 Law and Order
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.
Standard 8 Programme Information
Broadcasters are responsible for ensuring that programme information and structure does not deceive or disadvantage the viewer.
Broadcasters should not use the process known as "subliminal perception" or any other technique which attempts to convey information to the viewer by transmitting messages below or near the threshold of normal awareness.
Standard 9 Children’s Interests
During children’s normally accepted viewing times broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.
Broadcaster's Response to the Complainant
 TVNZ stated that the message had been broadcast after the introduction featuring the “coming up section” and that it was intended to be an ironic and humorous comment on the material that was going to follow. It pointed out that during different episodes of the programme other messages of “the same ilk” had flashed up before the beginning credits including “napalm the pakeha”, “mysky = small penis” and “Tame Iti = Bin Laden?”.
 The broadcaster stated that Eating Media Lunch was in its seventh season and that the type of material it contained was well-known to its intended audience. It contended the programme had earned itself a reputation for presenting material in a satirical manner “in such an outrageous fashion that it makes fun of the very concept of taste”.
 TVNZ argued that for a programme to breach Standard 1 the material must be unacceptable to a significant number of viewers in the context in which it was shown. It noted that the programme was rated AO, broadcast at 10pm and was preceded by a verbal and visual warning. It considered that both the programme’s rating and the warning had given a precise indication of the type of material the programme would contain and that viewers were given ample opportunity to decide if they wanted to watch the programme.
 The broadcaster argued that the phrase was not meant to be threatening or aggressive “nor was it meant to imply that the viewer should kill themselves”. It considered that the phrase was ironic and that it would be understood as a joke by regular viewers of Eating Media Lunch. TVNZ believed that material of this nature was acceptable in the context of an AO-rated programme, which was preceded by a warning and broadcast at 10pm. It declined to uphold the good taste and decency complaint.
 With respect to Standard 2 (law and order), TVNZ argued that for a programme to breach this standard it must actively promote disrespect for the law. It reiterated its argument that the programme was well-known for its satirical comedy and that it often contained footage and behaviour that was challenging. It maintained that the phrase was not meant to be taken as a directive but was intended to be a humorous comment on the material that was to come. The broadcaster believed that the phrase did not promote disrespect for the law. It declined to uphold the Standard 2 complaint.
 In response to the Standard 9 (children’s interests) complaint, the broadcaster pointed out that the Authority did not have jurisdiction over material on the internet.
 TVNZ was of the opinion that it had sufficiently considered the interests of child viewers because the programme was broadcast at 10pm, one-and-a-half hours after the watershed, was rated AO and had been preceded by a warning. It declined to uphold the Standard 9 complaint.
 The broadcaster contended that the message was not intended to be subliminal and that it was accompanied by a “bleep” that drew viewers’ attention to the screen. However, it noted that the message was “very difficult to see” and that the programme was “transmitting a message near the threshold of normal awareness”. It considered that “while the message was not intended to deceive or disadvantage the viewer”, guideline 8b of the programme information standard had been breached due to the brevity of the message.
 In upholding a breach of Standard 8, TVNZ said that it had advised the producers of Eating Media Lunch that “for future episodes the time of the message should be lengthened so that it is more apparent to the viewer”.
Referral to the Authority
 Dissatisfied with TVNZ’s response, Mr Bennett referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 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 8 (programme information)
 The complainant argued that the message “Kill Yourself Now” was so fleeting that it should be considered to be subliminal. TVNZ upheld this part of Mr Bennett’s complaint, stating that the programme information standard had been breached due to the brevity of the message, and it outlined the action it had taken to deal with the contents of the programme.
 The Authority finds that the broadcaster took appropriate and sufficient action to remedy the breach by advising the producers of Eating Media Lunch to extend the length of the messages so that they were readily visible to viewers. TVNZ also apologised to Mr Bennett for any offence caused by the breach. Accordingly, the Authority declines to uphold the complaint that TVNZ did not take sufficient action to remedy the breach of Standard 8.
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 consideration the context of the broadcast. On this occasion the relevant contextual factors include:
- the programme was broadcast at 10pm
- the programme was classified AO
- the programme was preceded by a verbal and written warning
- the expectations of regular viewers.
 In the Authority’s view, the message was intended to be humorous and was not meant to be taken literally. The type of material contained in Eating Media Lunch is well-known to its intended audience and the programme has a reputation for presenting such material in a satirical manner. The Authority agrees with the broadcaster that the message was not conveyed to viewers in a threatening or abusive manner and that it would have been understood as a joke by regular viewers.
 The Authority considers that the message was acceptable in the context of an AO classified programme, that was preceded by a warning and which was broadcast at 10pm. Accordingly, the Authority declines to uphold the complaint that the programme breached Standard 1.
Standard 2 (law and order)
 The Authority has stated on a number of occasions (e.g. Decision No. 2005-133) that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity. As mentioned above, the Authority considered that the message was intended to be humorous and that regular viewers would have understood it to be a joke. It finds that the message “Kill Yourself Now” did not promote, condone or glamorise criminal activity, or encourage viewers to break the law in the context in which it was used. Accordingly, the Authority declines to uphold the complaint that the programme breached the law and order standard.
Standard 9 (children’s interests)
 Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times. Because the programme subject to complaint was broadcast at 10pm, which is an hour-and-a-half after children’s normally accepted viewing time, the standard does not apply on this occasion. The Authority does not uphold this part of the complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
4 June 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Michael Bennett’s formal complaint – 9 December 2007
2. TVNZ’s response to the formal complaint – 30 January 2008
3. Mr Bennett’s referral to the Authority – 7 February 2008
4. TVNZ’s response to the Authority – 17 April 2008