Buxton and Television New Zealand Ltd - 2009-016
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Maggie Buxton
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Shortland Street – episode contained violent scenes – allegedly in breach of programme classification and violence standards
Standard 7 (programme classification) – programme contained disturbing adult themes and violence – unsuitable for children even when supervised by an adult – upheld
Standard 10 (violence) – violence went beyond PGR classification – inadequate warning – broadcaster did not exercise sufficient care – upheld
This headnote does not form part of the decision.
 The first episode of Shortland Street for 2009 was broadcast on TV2 at 7pm on Monday 19 January. It began with a brief recap of the final episode from 2008, in which one of the characters, Ethan Pearce, was shot in his home. Ethan was shown covered in blood struggling to move out through his yard and onto a beach, where he died. Several shots of the floor covered in Ethan’s blood, a gun, and Ethan’s bloody cellphone were shown.
 The episode also continued a storyline from the previous season concerning gang crime. The gang's leader, Kane, had kidnapped Kingi, a police informant, and Tania, a nurse from Shortland Street Hospital. The couple were shown tied up in the back of a van, being transported by the gang members to a quarry. Once there, Kingi began arguing with Kane, who told one of his henchmen to shut him up. After apologising, and Kingi responding "It's ok, do your thing", the henchman punched Kingi in the face. The punch was not shown, only the henchman swinging at Kingi, then Kingi falling backwards into the van.
 Later, in an attempt to escape, Kingi elbowed one of the henchmen in the head while telling Tania to run away. Kingi was shown swinging at the man, then the shot cut to the henchman falling backwards. Kingi hit another henchman with his tied up fists, then issued another blow to the first man. Shown from the shoulders up, Kingi apparently kicked one of them. The henchmen then repeatedly punched Kingi, and Tania was shown being chased by one of the gang members. Tania screamed as the gang member caught up to her and grabbed her leg pulling her to the ground. Another henchman had Kingi in a headlock. The gang member yelled at Tania, saying, "Shut your face and get u".
 At the end of the episode, after Kane asked the couple if they had "any last words?", Kingi again tried to escape, and was shown swinging a punch at the henchman, who was then shown falling back. Kingi grabbed a hammer and approached Kane. He punched Kane then kneed him. One of the gang members ran at Kingi, pushing him into a hole, and Kane started a digger above him which buried Kingi in dirt. Kane then leant over Tania, saying, "Where's your appreciation? You need to feel the love."
 The following verbal and written warning preceded the episode:
The following programme is rated PGR. It contains violence that may disturb and scenes that may not be suitable for a younger audience. We recommend the guidance of a parent or other adult.
 Maggie Buxton made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the violence in the episode, and "particularly the insinuation of sexual violence", breached programme classification and violence standards. She said "a PGR guidance rating for a show depicting multiple acts of physical violence, murder and attempted rape is not acceptable", and considered that Shortland Street's classification should be altered, or it should be broadcast at a later time.
 TVNZ assessed the complaint under Standards 7 and 10 of the Free-to-Air Television Code of Broadcasting Practice. Ms Buxton also nominated guideline 10d. These provide:
Standard 7 Programme Classification
Broadcasters are responsible for ensuring that programmes are appropriately classified; adequately display programme classification information; and adhere to time-bands in accordance with Appendix 1.
Standard 10 Violence
In the preparation and presentation of programmes, broadcasters are required to exercise care and discretion when dealing with the issue of violence.
Programmes in which rape or sexual violence is a theme should be treated with the utmost care. Explicit detail and prolonged focus on sexually violent contact should be avoided. Any programme in which rape is depicted should be preceded by a warning.
Broadcaster's Response to the Complainant
 TVNZ emphasised that the episode was rated PGR, which allowed for material more suited to a mature audience but not necessarily unsuitable for children subject to adult guidance, and that it was preceded by a written and verbal warning.
 Looking at Standard 7 (programme classification), the broadcaster was of the view that the episode was correctly classified. It noted that the PGR classification symbol was displayed at the beginning of the programme and after each advertisement break. It also stated that Shortland Street routinely dealt with adult themes, which were handled responsibly and did not exceed a PGR rating. TVNZ pointed out that the Authority had previously acknowledged that the series was not intended for younger viewers.
 TVNZ maintained that Shortland Street's production company had edited out some of the violent content at the request of the TVNZ appraiser to ensure the episode complied with the boundaries of a PGR classification. The broadcaster argued that the violence in the episode was in context and was important to the conclusion of a long-running storyline; in the first episode of the series for 2009, regular viewers would have expected to see the outcome of the gang storyline, TVNZ said. It argued "the violence was brief and... implied by audio, rather than visually seeing blows connecting to victims on-screen". Such depictions of violence were acceptable within PGR-rated programmes, it said, given that the PGR classification allows for material more suited to a mature audience.
 The broadcaster maintained that the inference of rape at the end of the episode was inexplicit and likely to go over the heads of children. The phrase "feel the love" was a colloquialism, it said, and could be interpreted in many ways; the threat of rape was not explicit in the phrase.
 TVNZ concluded that the programme was correctly classified and declined to uphold the Standard 7 complaint.
 Turning to the violence standard, the broadcaster argued that the violence in the episode complained about did not dominate the programme. It considered that it reached "the threshold of relevancy in that it was in context and important to the storyline", because it formed part of the culmination of an ongoing storyline following Tania and Kingi's dealings with a local gang. TVNZ was of the view that the programme's PGR classification and verbal and written warning met the requirements of Standard 10. It reiterated the fact that its appraiser had instructed the production company to edit the violent content to ensure that the violence was not graphic and complied with the PGR classification.
 The broadcaster concluded it had exercised appropriate care and discretion in dealing with the issue of violence by insisting cuts were made to ensure the impact of the violence was minimised, the violence did not dominate the programme and it was not graphic. It declined to uphold the complaint under Standard 10 (violence).
Referral to the Authority
 Dissatisfied with TVNZ's response, Ms Buxton referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
Broadcaster's Response to the Authority
 TVNZ provided comments from the producer of Shortland Street in response to Ms Buxton's complaint. The producer stated:
I am sorry that some viewers found the content of these episodes objectionable. I respect that some may find this unsuitable family viewing, but would point out that the high-stakes story elements were portrayed within the guidelines of our PGR rating.
 The producer considered that, as the PGR classification was prominently displayed in all promotions and listings for Shortland Street, "it is up to individual viewers to decide what is suitable for their children to watch, taking into account our recommendation for parental guidance". Further, the episode in question carried a warning alerting viewers to content that may disturb some people.
 The producer noted that the episode picked up from the 2008 end of year cliff-hanger, and "endeavoured to maintain the high level of tension that had played through to that season's finale". The producer said that the cliff-hanger had screened without complaint, and noted that the 19 January episode only showed the aftermath of the shooting. The producer considered that "the effects of a shooting were treated seriously, with the strong message that this action was wrong, carrying legal and moral consequences".
 In terms of the violence displayed, the producer maintained that the production team "went to lengths to suggest the threat of violence without depicting too much of this action on screen", by ensuring through editing that the impact of any blows between the gang members and Tania and Kingi was cut away from. The producer noted that while Kingi was buried at the end of this episode, he was quickly rescued in the following episode, which was "not dissimilar to many life-and-death cliff-hangers that Shortland Street has done in its long history, where a character faces life-threatening stakes".
 With regard to the mention of sexual violence in Ms Buxton's complaint, the producer noted that the threat of sexual violence was implied. The producer maintained that care was taken with the dialogue so that the threat of sexual aggression would be understood by adults but not obvious to younger viewers. This depiction was acceptable in its dramatic context and within the PGR rating.
 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 7 (programme classification
 Standard 7 requires that programmes are appropriately classified and comply with the time-bands in which they screen. The Authority notes that the PGR classification is defined as follows in Appendix 1 of the Free-to-Air Television Code:
PGR – Parental Guidance Recommended
Programmes containing material more suited for mature audiences but not necessarily unsuitable for child viewers when subject to the guidance of a parent or an adult.
 The Authority considers that the violence in this episode of Shortland Street was unsuitable for children even when supervised by an adult, and therefore the episode required a higher classification than PGR. The episode was wholly concerned with adult themes which were likely to frighten and disturb child viewers, such as murder, gang violence, and being taken away to be killed.
 In the Authority's view, the violence in the episode was realistic, not "implied", as argued by the broadcaster. The violence that took place at the quarry, including punching, kicking, death threats and being buried alive, was graphic and left little to the imagination. The Authority disagrees that, just because the split second when violent contact was made was not shown, the violence could be considered “implied” rather than explicit (for example when one man swung at another, then the camera cut to the victim falling backwards). Editing out the moment of impact did not minimise the realistic and disturbing nature of the violence, especially when the audio that accompanied the violent contact was still present.
 While the violence may have been necessary to the storyline, the Authority considers that it needed to be presented in a more discreet and implied manner in order to comply with the programme’s rating and the time of broadcast. It acknowledges that the broadcaster used a warning for "violence that may disturb" and "scenes that may not be suitable for a younger audience", but that does not excuse the fact that the material, and particularly the cumulative effect of the violent scenes, was not acceptable in a PGR timeslot. The Authority finds that this episode of Shortland Street should have been classified Adults Only (AO).
 For the record, the Authority considers that the inference of sexual violence complained about by Ms Buxton was subtle and likely to have gone over the heads of children watching Shortland Street. It therefore finds that this part of the programme did not exceed the PGR rating.
 Having concluded that there was material in this episode that was unsuitable for the PGR time-band and should have led to the episode being classified as AO, the Authority must consider whether to uphold this complaint as a breach of Standard 7.
 The Authority acknowledges that upholding the Standard 7 complaint would place a limit on the broadcaster's right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Decision No. 2008-066, the Authority determined that upholding a complaint under Standard 7 would be prescribed by law and a justified limitation on the broadcaster's right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision the Authority described the objective of Standard 7 as follows:
...the programme classification standard exists to create consistency and certainty for viewers, who rely on the classification of a programme to give them a fair indication of its content. Standard 7 also plays an important role in the protection of children, because it assists parents and guardians in making informed choices about children's viewing.
 Having found that this episode of Shortland Street was incorrectly classified and likely to disturb child viewers, the Authority considers that it would be a reasonable and proportionate limit on TVNZ's freedom of expression to uphold a breach of the programme classification standard on this occasion. Upholding Ms Buxton's complaint clearly promotes the objective of Standard 7 as outlined above. Accordingly, the Authority upholds the programme classification complaint.
Standard 10 (violence)
 Standard 10 requires broadcasters to exercise care and discretion when dealing with the issue of violence. The Authority has found above that the violence in this episode of Shortland Street was graphic and disturbing and went beyond the programme’s PGR classification. It considers the pre-broadcast warning was not adequate to prepare viewers for the content of the episode, and that it would have been possible to address the theme of gangs without explicitly showing excessive violent behaviour. Accordingly, the Authority is satisfied that the broadcaster did not exercise sufficient care and discretion when dealing with violent content in this episode of Shortland Street.
 Having reached this conclusion, the Authority must consider whether to uphold this complaint as a breach of Standard 10.
 The Authority acknowledges that upholding the Standard 10 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Decision No. 2008-137, the Authority determined that upholding a complaint under Standard 10 would be prescribed by law and a justified limitation on the broadcaster's right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision the Authority described the objective of Standard 10 as follows:
...the violence standard exists to ensure that broadcasters use care and discretion to exclude unsuitable violent material and to promote the use of warnings where necessary to protect viewers - particularly child viewers.
 The Authority has found above that the violent content in Shortland Street went beyond the programme's classification, was unsuitable for child viewers, and did not carry an adequate warning. In these circumstances, the Authority considers that upholding Ms Buxton's complaint clearly promotes the objective of Standard 10 as outlined above, and would be a reasonable and proportionate limit on TVNZ’s freedom of expression. Accordingly, the Authority upholds the Standard 10 complaint.
 The Authority notes that Ms Buxton specifically complained about a suggestion of sexual violence in the episode. It is of the view that, in accordance with guideline 10d, the implication of rape at the end of the episode was treated with care; it was subtle and would have most likely gone over the heads of younger viewers.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an episode of Shortland Street on 19 January 2009 breached Standards 7 and 10 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to do so on this occasion.
 In December 2008, the Authority released Decision No. 2008-112, in which a majority upheld a complaint that violent content in Shortland Street had breached Standard 1 (good taste and decency). Following that decision, in March 2009, members of the Authority met with the broadcaster and the programme’s producers to discuss the importance of complying with broadcasting standards.
 The Authority acknowledges that the episode considered in this complaint was produced prior to the release of Decision No. 2008-112. Given the recent discussions with the broadcaster and Shortland Street's producers, the Authority considers that publication of this decision is sufficient in the circumstances to remind TVNZ to exercise special care and discretion when including violent material in PGR programmes screened at 7pm.
Signed for and on behalf of the Authority
6 May 2009
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Maggie Buxton’s formal complaint – 20 January 2009
2. TVNZ's response to the complaint – 20 February 2009
3. Ms Buxton's referral to the Authority – 20 February 2009
4. TVNZ's response to the Authority –- 6 March 2009