Buxton and Television New Zealand Ltd - 2009-017
- 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 – female character struck gang leader on the head with a hammer – later kicked him repeatedly as he was tied up on the ground – allegedly in breach of violence and programme classification standards
Standard 7 (programme classification) – violence was graphic and realistic – deserved higher classification – upheld
Standard 10 (violence) – violence went beyond PGR classification – warning inadequate – broadcaster did not exercise sufficient care – upheld
This headnote does not form part of the decision.
 An episode of Shortland Street was broadcast on TV2 at 7pm on Tuesday 20 January 2009. It began with a brief recap of violence that had taken place in the previous episode, continuing a long-running storyline concerning gang crime. The gang's leader, Kane, had kidnapped Kingi, a police informant, and Tania, a nurse from Shortland Street Hospital. Kingi had been buried under a truckload of dirt.
 Less than a minute into the episode, Kane, his mouth bloodied from fighting with Kingi, was shown leaning over Tania and placing his hand on her shoulder saying, "[let's] make your last day a special one, eh?" While Kane was discussing with another henchman what to do with Tania, she picked up a hammer, crept up behind Kane while his back was turned, and swung the hammer hard at his temple. Kane was shown falling forwards onto the ground. Tania started digging to find Kingi, and as one of the henchmen tried to attack her, his associate, who had been helping Kingi and Tania, punched him.
 Kane was shown lying on the ground groaning in pain, his head covered in blood. Later, after Tania had rescued Kingi, Kane told her, "I'm gonna get you". Shown from the chest up, Tania impliedly kicked Kane violently and repeatedly as he was lying on the ground.
 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 breached programme classification standards. She said "a PGR guidance rating for a show depicting multiple acts of physical violence 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, which 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.
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. It said "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.
 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 it "reaches 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". 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 Kingi was buried then quickly rescued in this 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".
 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 is of the view 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 contained adult themes which were likely to frighten and disturb child viewers, including gang violence and a storyline which involved two characters being kidnapped by gang members and taken away to a remote location to be killed.
 Further, the violence in the episode, including punching, kicking and striking with a hammer, was graphic and left little to the imagination. The Authority disagrees with the broadcaster’s contention that the violence was "implied" rather than explicit just because the split second when violent contact was made was not shown (for example when Tania swung at Kane's head with a hammer, then the camera cut to Kane falling down). 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).
 Having reached this conclusion, 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 contents 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.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an episode of Shortland Street on 20 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