BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The film Night Eyes, which was rated AO, was screened by TV3 on 9 November,

1996 beginning at 8.30pm.

Ms Dianne Browne of Auckland complained to TV3 Network Services Ltd, the

broadcaster, that the sexual content of the film made it inappropriate for viewing at

8.30pm, even if there was a warning preceding. In her view, the explicit and erotic

nature of the film amounted to pornography and was offensive.

TV3 explained that the film had been broadcast previously, in 1993, and had received

no complaints at that time. It noted that it was preceded by a warning which made clear

it contained adult content, and further, that the sex scenes were not unacceptable in adult

viewing time.

Dissatisfied with TV3's decision not to uphold the complaint, Ms Browne referred it 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.

Decision

The members of the Authority have viewed the film complained about and have read the

correspondence (summarised in the Appendix). As is its practice, the Authority

determines the complaint without a formal hearing.

An AO classified film entitled Night Eyes was broadcast on TV3 on 9 November 1996

beginning at 8.30pm. It focused on the acrimony between an estranged couple and the

attempts by the husband to film his former wife secretly in a liaison with another man.

The film was preceded by a warning which stated:

This film is recommended for Adults Only viewing. Certain scenes may offend

and viewer discretion is advised.

Ms Dianne Browne complained to TV3 that the sexual content was inappropriate for

broadcast at any time, regardless of whether it was preceded by a warning or that it was

classified AO. In her view, the film was overly explicit and erotic and unsuitable for

broadcast at any time. She found it offensive and invasive. Ms Browne also argued

that the AO watershed was, at 8.30pm, too early in the evening, and pointed out that

many teenagers were still watching television at that time.

TV3 advised that it had assessed the complaint under standard G2 of the Television

Code of Broadcasting Practice, which requires broadcasters:

G2   To take into consideration currently accepted norms of decency and

taste in language and behaviour, bearing in mind the context in which

any language or behaviour occurs.

It pointed out that the film was classified AO, was broadcast during AO time and carried

a visual and verbal warning advising viewer discretion. Furthermore, TV3 pointed out,

it had been screened previously, in 1993, and had not attracted any complaints either

then or following the 1996 screening, other than the one from Ms Browne. Therefore,

TV3 concluded, it was safe to assume that the film's audience did not believe there was

a breach of standards.

It then examined the two scenes which it considered were central to the complaint. The

first, which occurred at about 8.40pm, was less than 3 seconds long and was, in TV3's

view, important in the context of the film. The second scene, which began at about

9.05pm, showed two people kissing, clothed, on a bed. Although the woman

remained clothed, the man's buttocks were seen briefly at the end of the scene. There

were other sex scenes which were screened even later, and were of a similar nature.

TV3 denied that they could be described as "pornographic" and maintained that they

were acceptable to show in AO time.

The Authority has considered the matter of the suitability of adult material close to the

8.30pm watershed in previous decisions. In its Decision No: 1996-051, dated 16 May

1996, it wrote:

Furthermore, it believes such explicit material should not be shown so close to

the 8.30pm watershed, as viewers under the age of 16 years do not necessarily

stop watching television at 8.30pm. The significance of watershed time is not

that it signals a time when schedules, designed up to that moment for family

viewing, become an unrestrained deluge – a waterfall rather than a watershed.

Rather it is the time which indicates to parents who wish to exercise choice over

their children's viewing that the content, as the evening progresses, may

become less suitable for children to view.

The Authority reiterates that the commencement of the 8.30pm watershed does not give

a license to broadcasters to broadcast adult material indiscriminately. It acknowledges

Ms Browne's argument that teenagers and young people do not stop viewing at that

hour and cautions broadcasters to use their discretion about screening films which

contain adult scenes so soon after the watershed.

When it assesses a complaint about a breach of good taste and decency, the Authority

takes into account contextual matters. With respect to the broadcast of the film Night

Eyes, the Authority notes that it was identified as an AO film, and broadcast during AO

time. It was preceded by a verbal and visual warning which highlighted that it

contained adult material, and advised viewer discretion. The Authority emphasises that

provision of such safeguards does not justify the broadcast of adult material - it simply

provides essential viewer information.

Next the Authority examines TV3's argument that the film had been screened before, in

1993, and had attracted no complaints, and that no other complaints were received on

this occasion. It does not regard the lack of complaints as conclusive proof that the film

therefore satisfied community expectations as to good taste and decency.

It then turns to TV3's argument that the sex scenes were essential in the context of the

story. Since the plot turned on the infidelities of the parties in the marriage, the

Authority accepts that some reference to the couple's philandering was relevant. On

balance, it decides that although the film's storyline was weak there was not an undue

focus on the sex scenes, which were relatively brief and inexplicit. It concludes that

when it takes into account these contextual matters, there was no breach of the good

taste standard.

For the reasons set forth above, the Authority declines to uphold the

complaint.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
20 March 1997

Appendix

Ms Dianne Browne's Complaint to TV3 Network Services Ltd -

28 November 1996

Ms Dianne Browne of Auckland complained that the film "Night Eyes" broadcast by

TV3 Network Services Ltd on 8 November at 8.30pm contained sexual content which

was inappropriate for broadcast at that time.

She considered the content to be unsuitable, regardless of whether it was preceded by a

warning or that it was classified AO. She wrote:

I think the overly explicit and erotic nature of this movie makes it pornography

and I found it offensive and invasive.

TV3's Response to the Formal Complaint - 24 December 1996

In its response, TV3 pointed out that the film "Night Eyes" was rated AO and contained

a visual and verbal warning which stated:

This film is recommended for Adults Only viewing. Certain scenes may offend

and viewer discretion is advised.

In addition, TV3 noted, the content of the film was significantly reduced. It pointed out

that the film had first screened in 1993, also at 8.30pm, and that no complaints were

received after that broadcast. Because no other complaints were received about the

1996 screening, TV3 concluded that the film's audience did not believe that standards

of good taste were breached.

TV3 argued that none of the sex scenes involved nudity or sexual activity which was

unacceptable in AO time. The first scene which was less than 3 seconds long, screened

at 8.40pm and, it maintained, was important in the context of the film. The second sex

scene began at 9.05pm and involved two people, fully clothed, kissing on a bed. The

man lost his towel, and his buttocks were glimpsed for approximately one second. The

woman remained clothed. TV3 contended that none of the scenes could be considered

pornographic.

TV3 concluded:

The Broadcasting Standards Authority clearly consider 8.30pm to be the

watershed for children's viewing and the commencement of adult viewing time.

Neither scene intruded on children's viewing time. The latter scene in fact

screened at 9.05pm, well into the Adults Only watershed.

TV3 declined to uphold the complaint.

Ms Browne's Referral to the Broadcasting Standards Authority - 20

January 1997

Dissatisfied with TV3's response, Ms Browne referred the complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

She considered TV3's argument that the sex scenes did not start until 8.40pm and later

was irrelevant, and disputed TV3's claim that since no other complaints were received,

the film was therefore within the range of what was acceptable on television. Ms

Browne reported that several people she had spoken to had thought the content was

inappropriate also. She believed that many people did not bother making formal

complaints because there was little evidence to show that it made any difference. She

also suggested that many would have turned the television off or changed channels.

She wrote:

In my view the overall intention of "Night Eyes" was soft porn/erotic

entertainment and this intention should be kept in mind when deciding whether

the movie was in breach of standards.

She added that if it was not found to be in breach of standards, then she would question

those standards. She especially disagreed with the AO screening time of 8.30pm,

pointing out that many teenagers were around in the evenings at that time. In her view,

if movies like this were to be screened at all on television, they should be shown after

10.30 or 11.00pm.

TV3's Response to the Authority - 4 February 1997

TV3 advised that it had no further comment to make on the complaint.