Brown and 3 Others and Television New Zealand Ltd - 2003-082–2003-087
- P Cartwright (Chair)
- J H McGregor
- Tapu Misa
- R Bryant
- Andrew Rowse
- Jordan Carter, on behalf
- Karena Brown
- Tony Milne
BroadcasterTelevision New Zealand Ltd
Coca Cola Chart Show – music videos – All The Things She Said – Beautiful – scenes of same-sex kissing removed – unfair – discriminatory
Standard 6, Guideline 6g – no discrimination – threshold not reached – no uphold
This headnote does not form part of the decision.
 Music videos All The Things She Said and Beautiful were broadcast on TV2’s Coca Cola Chart Show from 10.00am. The first video screened on 2, 16, 23 and 30 March and 6 April 2003. The second video was shown on 23 and 30 March and 6 April 2003.
 Jordan Carter on behalf of New Zealand Young Labour, Karena Brown, Andrew Rowse and Tony Milne all complained to Television New Zealand Ltd, the broadcaster, that the edits made to the music videos to remove scenes involving same-sex kissing were discriminatory.
 In response, TVNZ pointed out that the music videos were shown at a time when children were likely to be watching television. The cuts, it argued, were not made because of the same-sex kissing, but in having to consider the interests of child viewers. It declined to uphold the complaints.
 Dissatisfied with TVNZ’s decision, the complainants referred their complaints 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 complaints.
 The members of the Authority have viewed tapes of both the edited and unedited versions of each of the music videos complained about and have read the correspondence which is listed in the Appendices. The Authority determines the complaints without a formal hearing.
 During the Coca Cola Chart Show the music videos All The Things She Said and Beautiful were broadcast on TV2 from 10.00am until midday. The first music video performed by t.A.T.u featured on the programme on 2, 16, 23 and 30 March and 6 April 2003. The second music video by Christine Aguilera screened on 23 and 30 March and 6 April 2003.
 Karena Brown noted that there were a number of music videos shown that portrayed heterosexual sexual activity, but that in the video of All the Things She Said shown on 16 March, the scenes of two women kissing had been removed. She contended that TVNZ’s "active discrimination" against homosexuals was a breach of broadcasting standards. She wrote:
The message from this was quite clear and very discriminatory. Heterosexuality is okay and can be freely shown on television at that time, homosexuality is not and people watching at that time need to be protected from images of homosexual intimacy.
 Ms Brown advised that she had telephoned the broadcaster, and was advised that "it was ‘socially unacceptable’ to show women kissing at this time." She argued that it must follow that it was also "socially unacceptable" to show heterosexual kissing between 10am – 12noon. She noted that such discrimination was illegal.
 Andrew Rowse complained that removing the scenes of the two females kissing from the music video All The Things She Said shown on 2 March, was discriminatory, and an example of "unbalanced, unfair and inaccurate prejudice." He noted that there were "plenty of examples of male-female kissing in other videos shown in the same show". He wrote:
By cutting the kissing scene from the video, TV2 is sending out the message that same-sex love is in some way more offensive than heterosexual love and that children need to be protected from the idea. This is ludicrous. Children need to be raised to know that this country has laws against discrimination on the basis of sexual preference, and that there is nothing evil or shameful about falling in love with another person of the same sex.
 Jordan Carter complained on behalf of the New Zealand Young Labour ("NZYL") that two music videos, All The Things She Said and Beautiful, shown on 23 March 2003 had scenes of same-sex kissing removed. NZYL complained that this action was "active discrimination" against homosexuals.
 NZYL noted that there were other music videos shown at the same time which depicted heterosexual sexual activity. It submitted that TVNZ’s policy of editing same-sex kisses was illegal and contributed to the "discrimination and marginalisation of a minority group." NZYL wrote:
If you can’t bring yourself to show the uncensored version, then I assume that you will start censoring all displays of intimacy, whether they be homosexual or heterosexual. After all, heterosexuality and homosexuality are equal under the law.
 Tony Milne also complained about the removal of scenes of same-sex kissing from the two music videos shown on 23 and 30 March and 6 April. He contended that the removal of such scenes was "unacceptable" and "blatant discrimination of homosexual people." He wrote:
Your station is contributing [to] the marginalisation of same-sex people and displays of affection. Your station, by omitting same-sex displays of affection, is contributing to making young gay people invisible yet again.
 In view of the matters raised in the complaints, TVNZ assessed their complaints under Standards 6 of the Free-to-Air Television Code of Broadcasting Practice. The Standard and relevant Guideline read:
Standard 6 Fairness
In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.
6g Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:
i) factual, or
ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or
iii) in the legitimate context of a dramatic, humorous or satirical work.
The Broadcaster’s Response to the Complainants
 TVNZ declined to uphold the complaints. It maintained that the scenes in All The Things She Said had been removed because of the depiction of sexual behaviour involving school children, and not because they involved same-sex kissing. It continued:
The scenes were removed because the two performers in the video were dressed up to look like young school girls in very short gym slips. It was the committee’s opinion that scenes involving young children engaged in overtly sexual behaviour would be removed, whether the relationship was same-sex or heterosexual.
 In relation to the t.A.T.u video, TVNZ advised that in its opinion the "unedited version of this song did have an unhealthy sense of voyeurism about it." It also referred to British child advocates who have described t.A.T.u as "paedophilic pop" and comments made by the group’s manager that the band was an "underage sex project", which TVNZ said caused it to "approach their material with caution."
 TVNZ also noted that the Coca Cola Chart Show was screened on Sunday mornings, which is PGR viewing time. It noted that it was required to consider childrens’ viewing interests, and that guideline 9d of the Television Code required it to "have regard to the fact that children tend to watch television through to midday on Saturday and Sunday mornings".
 TVNZ contended that it did not have "a policy of removing same-sex kisses." It submitted that there was "no issue over same-sex or heterosexual love here", and that any portrayal of sexual activity between children regardless of the sexual orientation of the children involved would not be shown on G and PGR programming.
 TVNZ reported that the BBC in Britain had also cut the "most passionate scenes" from t.A.T.u’s video before its early evening screening on Top of the Pops, which is replayed on Saturday evenings in New Zealand.
 In relation to the Beautiful video, TVNZ advised that the edits had been made due to "the intensity of the kissing in which it was clear that there was an intertwining of tongues between the two men involved." It continued:
The [complaints] committee believed any scene of sexual passion in which tongues are shown slashing about would be removed from a chart show likely to be seen by young children, regardless of whether the participants were same sex or heterosexual.
 TVNZ maintained that its "prime consideration" in editing both music videos "was the protection of young children, and the time of screening was a key factor in that consideration." Accordingly, it concluded that there had been no discrimination on the grounds of sexual orientation, and, therefore, Standard 6 had not been contravened.
The Referrals to the Broadcasting Standards Authority
 In their referrals, each complainant referred to specific areas of TVNZ’s decision with which they were dissatisfied.
 Ms Brown disputed TVNZ’s reasoning for the removal of the kissing scenes. In her view, the video did not depict "young children" but rather two women at the age of consent. In reference to the comments made about t.A.T.u by child advocates and the group’s manager, she argued that there were numerous other portrayals involving young women "using their sex appeal to sell songs" and young heterosexual people kissing. Therefore, she claimed that this was not a valid reason for editing the video. Ms Brown maintained that the issue was sexuality and that the scenes had been removed because it involved same-sex kissing.
 Ms Brown dismissed TVNZ’s reference to BBC’s Top of the Pops, as being an irrelevant consideration to decision making in New Zealand, as different laws were involved. In relation to the broadcaster’s submission that it "did not have a policy of removing same-sex kisses", Ms Brown noted that she was aware of another song, Beautiful, that had also been edited, and the scenes of two men kissing removed.
 Mr Rowse maintained that the editing implied that "same-sex is immoral." He disagreed with TVNZ that "young children" were depicted. In his view they looked like teenagers, who were over the age of consent. Mr Rowse acknowledged t.A.T.u’s manager’s comments, but in his opinion the comments were a "deliberately inflammatory publicity stunt." He also expressed caution about the objectivity of the child advocates’ claims, referred to by TVNZ. In his view, the reference to the British Top of the Pops was "ill-informed". He stated that the programme was "notorious for censoring homosexual content", and had never shown a same-sex kiss. "Bigotry overseas does not excuse bigotry in New Zealand", he wrote.
 Mr Rowse disputed TVNZ’s claim that the edited kiss was "passionate" and argued that it was "tame" in comparison to other programmes depicting heterosexual teens kissing. He said that "defining the kiss as child pornography is a real stretch of the imagination". In his view, by removing the kissing scenes the broadcaster had implied that "same-sex love" was inappropriate. He also suggested that TVNZ’s view that the video had "an unhealthy sense of voyeurism about it" was based on its own prejudicial values. He disagreed with TVNZ’s explanation that the video portrayed underage sexual content. He maintained that the editing was because of the homosexual content.
 NZYL made three principal points. First, in relation to the issue of child viewers, NZYL contended that there were "numerous" other music videos on the same programme depicting explicit sexual activity between heterosexuals. It argued that scenes of a similar nature to the homosexual kissing were portrayed in other music videos shown on the Coca Cola Chart Show. Further, it questioned what TVNZ, in editing the scenes, was trying to protect child viewers from.
 Second, NZYL claimed that TVNZ’s constant references to "children" and "young children" was misleading. NZYL contended that the music videos depicted young people of the age of consent, and dealt with the issue of "adolescent sexuality."
 Third, in relation to the Beautiful video, NZYL disputed TVNZ’s reason for the editing of the kissing scene, and stated that other scenes involving two men were cut, even though a number of those scenes did not contain any kissing or "intertwining of tongues."
 NZYL concluded that TVNZ, in its editing of same-sex kissing, had discriminated against the homosexual community.
 Mr Milne disagreed that TVNZ had applied its "rules in a non-discriminatory way." In his view, there was no issue if TVNZ had removed all scenes of kissing and sexual behaviour. However, he argued that the programme featured numerous other examples of heterosexual kissing and sexual behaviour, and therefore, the omission of scenes of same-sex kissing illustrated that TVNZ had demonstrated "clear and undeniable discrimination" against homosexuals.
 Mr Milne noted in the Beautiful music video, that most of the scenes featuring two men were removed, even though they did not feature any kissing. In his opinion, it was clear that TVNZ’s decision to remove the scenes was because they portrayed intimacy between a same sex couple, and was not related to the protection of children.
The Broadcaster’s Response to the Authority
 In response to Ms Brown, TVNZ disagreed that the women were depicted as being above the age of consent. In its view the women were "deliberately" portrayed as "young schoolgirls" and it had deleted an "unhealthy sense of voyeurism in the passionate kissing scenes". TVNZ reiterated its earlier submission regarding children’s viewing interests and classification of the programme.
 TVNZ reiterated the comments made by the band’s manager. It noted Ms Brown’s reference to another music video in her referral, but submitted that as this item was not part of her original complaint, the Authority should not assess this aspect.
 TVNZ disagreed with Mr Rowe’s contention that the women in the video were depicted as being over the age of consent. TVNZ reiterated that in its view the women were deliberately portrayed as "young schoolgirls". TVNZ explained that programme classification and the likely viewing audience were key aspects when it decides what to broadcast at any given time. It reiterated its earlier submission regarding children’s viewing interests and classification of the programme.
 In response to NZYL, TVNZ wrote:
[T]he process of making any material acceptable to the expected audience in any given classification period is necessarily a subjective one. In the case of kissing in music videos which are likely to attract a sizeable child audience, TVNZ would consider the nature of the kissing, not the gender of those involved. Each situation, each music track is treated on its merits. That is what has happened in both these cases. It is our view that in the case of the song featuring t.A.T.u the kissing is presented (whatever their real ages are) as part of an underage relationship, while in the Christina Aguilera song the kissing is of a passionate rather than playful or choreographed nature.
The Complainants’ Final Comment
 Ms Brown contended that TVNZ continued to refer to the women depicted as "young school girls", which implied that these women were "pre-pubescent and, therefore, showing this music video could be seen as endorsing paedophilia." In her view, this was not intended and the women portrayed were of "high school age". She also expressed her concern that TVNZ had based its editing decision on unsubstantiated comments by the band’s manager.
 Ms Brown noted that her reference to another music video was because of TVNZ’s statement that it did not edit same-sex kissing. Therefore, she had cited another music video because in her view it demonstrated that TVNZ did edit same-sex kissing. In reference to children’s viewing interests, Ms Brown noted that all that was being depicted was "two young women fighting the system to be together and showing their feelings by kissing". She said that this was something that had been "socially acceptable" to portray among heterosexuals "for as long as I can remember." In her view, children would have been aware of the edits made to the music video, and this conveyed to them that two women kissing was wrong. Ms Brown concluded:
I still believe the message being given by TVNZ to those watching the music video is quite blatantly anti-homosexual. It can be hidden behind emotive words like "underage" and "paedophilic pop" but the reality is that they are removing images that show homosexuality in a positive light.
 Mr Rowse reiterated that the women depicted looked like teenage students and not "young schoolgirls" which implied pre-pubescent individuals. He suggested that TVNZ had contradicted itself regarding likely audience as a key aspect in its assessment of appropriate content and programme classification. TVNZ had implied that kissing which was inappropriate in the Coca Cola Chart Show was acceptable in another programme because it was less likely to be watched by young children. However, he said this differed from TVNZ’s previous view- that any portrayal of sexual activity between children would be excluded from G and PGR programmes.
 Mr Rowse reiterated that the kissing scene that was removed was not "passionate sexual content". In his view, the kiss was "extremely tame". He stated that given the theme of the song, the kissing was appropriate and he reiterated that, in his view, the scene was removed because the kiss was between two women. He concluded:
Teenagers are subjected to a constant barrage of heterosexual content. To censor one of the few pieces of mainstream music that condones anything other than heterosexual love is irresponsible. To dress the censorship up as a child sex issue is even more so.
The Authority’s Determination
 The complainants allege that TVNZ had demonstrated "clear and undeniable discrimination" against homosexuals when it omitted scenes of same-sex kissing while featuring other examples of heterosexual kissing and sexual behaviour.
 TVNZ’s explanation is that the edits were made to enable the videos to be shown during children’s normally accepted viewing times.
 The Authority notes that it is not its role to determine whether TVNZ’s actions in editing the music video tapes were discriminatory, but whether those actions resulted in the broadcast of videos which portrayed homosexuals in a manner likely to encourage denigration or discrimination.
 The Authority observes that there are occasions when an omission may result in a broadcast that breaches the standards of balance, accuracy and fairness. For example, Guideline 6a to Standard 6 states that "care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed." The Authority considers, however, that these guidelines relate to the preparation and presentation of news, current affairs and other factual programmes, and are not relevant to these complaints. Therefore, the Authority has confined its consideration on this occasion to an assessment of the edited music videos as broadcast.
 The relevant guideline in this case (6g) requires broadcasters to "avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of ... sexual orientation".
 The Authority agrees with TVNZ that "portrayal" in the sense referred to here means what the viewer understands from what he or she sees on television.
 The Authority has noted previously that a high degree of denigration is required before a broadcast contravenes Guideline 6g. In the Authority’s view, nothing in the edited music videos which were broadcast by TVNZ could be construed as encouraging "denigration of, or discrimination against" homosexual people, and therefore the threshold was not reached. Accordingly, the Authority concludes that Standard 6 was not contravened.
 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 and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the above reasons, the Authority declines to uphold the complaints.
Signed for and on behalf of the Authority
21 August 2003
The following correspondence was received and considered by the Authority when it determined the complaint from Karena Brown:
- Karena Brown’s Complaint to Television New Zealand Ltd – 20 March 2003
- TVNZ’s Response to the Formal Complaint – 24 March 2003
- Ms Brown’s Referral to the Broadcasting Standards Authority – 28 March 2003
- TVNZ’s Response to the Authority – 9 April 2003
- Ms Brown’s Final Comment – 17 April 2003
The following correspondence was received and considered by the Authority when it determined the complaint from Andrew Rowse:
- Andrew Rowse’s Complaint to Television New Zealand Ltd – 2 March 2003
- TVNZ’s Response to the Formal Complaint – 14 March 2003
- Mr Rowse’s Referral to the Broadcasting Standards Authority (plus attachments) – 30 March 2003
- TVNZ’s Response to the Authority – 10 April 2003
- Mr Rowse’s Final Comment – 17 April 2003
The following correspondence was received and considered by the Authority when it determined the complaint from New Zealand Young Labour:
- New Zealand Young Labour’s Complaint to Television New Zealand Ltd – 31 March 2003
- TVNZ’s Response to the Formal Complaint – 11 April 2003
- NZYL’s Referral to the Broadcasting Standards Authority – 1 May 2003
- TVNZ’s Response to the Authority – 8 May 2003
The following correspondence was received and considered by the Authority when it determined the complaint from Tony Milne:
- Tony Milne’s Complaint to Television New Zealand Ltd – 6 April 2003
- TVNZ’s Response to the Formal Complaint – 24 April 2003
- Mr Milne’s Referral to the Broadcasting Standards Authority – 10 May 2003
- TVNZ’s Response to the Authority – 23 May 2003