BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
3 News – item on the effects the recession was having on the adult entertainment industry – contained footage from “Boobs on Bikes” parade – included footage of a male stripper, a topless woman covered in body paint and three women dancing provocatively with one another – allegedly in breach of good taste and decency and children’s interests

Findings
Standard 1 (good taste and decency) – majority – footage of male stripper and women dancing provocatively was marginal – contextual factors – not upheld

Standard 9 (children’s interests) – majority – item’s introduction gave adequate warning to parents and caregivers to exercise discretion – upholding the complaint would be an unjustified limitation on the broadcaster’s freedom of expression – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on 3 News, broadcast at 6pm on Monday 8 June 2009, looked at the effects the recession was having on the adult entertainment industry. The presenter introduced the item by saying:

It seems people are no longer in the mood when it comes to the adult entertainment industry. The recession has seen a world-wide drop in porn profits. Even New Zealand’s biggest player in the industry, Steve Crow, has had to liquidate one of his businesses.

[2]   Brief archival footage from a “Boobs on Bikes” parade was shown, which included shots of women riding as pillion passengers on motorcycles with their buttocks exposed wearing G-strings and leather riding gear. While the women were bare-breasted, the footage of their breasts was pixellated.

[3]   Steve Crow was interviewed and talked about the negative effects the recession was having both on his pornography businesses and the adult entertainment industry as a whole.

[4]   The item briefly talked about the pornography business in America and the fact that some homeowners were charging pornographic film makers for the use of their property as movie sets.

[5]   Footage was shown of a male stripper who was wearing what appeared to be a form of underwear that exposed his genital area, but the front of his underwear was pixellated. Three women were shown dancing together provocatively, with one of them being topless. Another woman was shown wearing only a G-string and covered in leopard-themed body paint.

[6]  Towards the end of the item, an extremely brief shot of a woman pulling her top up over her exposed nipple was shown along with a close up shot of a woman’s buttocks and G-string as she was riding as a pillion passenger on a motorcycle. This footage was from the “Boobs on Bikes” parade.

Complaint

[7]   Barrie Cavill made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item had breached broadcasting standards.

[8]   The complainant argued that, while the footage of the women’s bare breasts was partly blurred, it “clearly revealed” the pornographic nature of the parade. He considered the footage of the Boobs on Bikes parade was explicit and that it was inappropriate to broadcast this type of material at a time when children could have been watching.

Standards

[9]   Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. They 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 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

Broadcaster's Response to the Complainant

[10]   TVWorks argued that the Authority had already determined in Forbes-Dawson and CanWestTVWorks¹that news coverage of this sort did not breach broadcasting standards. It declined to accept the complaint on that basis.

Referral to the Authority

[11]   Dissatisfied with TVWorks’ response, Mr Cavill referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. The complainant stated that many school students were required to watch the news for homework purposes and that this type of pornographic material was inappropriate for broadcast at 6pm.

Authority's Determination

[12]   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.

Procedural Matter

[13]   The Authority notes that TVWorks declined to accept Mr Cavill’s complaint because it believed that the Authority had already determined that news coverage of the sort contained in the item did not breach broadcasting standards. Further TVWorks failed to advise Mr Cavill that he had a right to refer his complaint to the Authority. It points out that the Broadcasting Act 1989 does not contain any provisions that allow a broadcaster to decline to accept a valid formal complaint, and that section 7(3) of the Act requires broadcasters to notify complainants of their right to refer their complaint to the Authority for review.

[14]   The Authority expects TVWorks to comply with its statutory obligations in the future.

Standard 1 (good taste and decency)

[15]   When the Authority considers an alleged breach of good taste and decency, it takes into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• the item was broadcast at 6pm, during children’s normally accepted viewing times

• 3 News was an unclassified news and current affairs programme

• the item was not preceded by a warning.

[16]   In the Authority’s view, the archival footage from the “Boobs on Bikes” parade, while obviously not to everyone's tastes, was relatively inexplicit. The shots of bare-breasted women were not prolonged or salacious, especially considering the women’s bare breasts were pixellated except for the brief shot of one woman’s nipple.

[17]   However, the Authority was divided in its opinion of the footage of the male stripper, the three women provocatively dancing together and the partially nude woman covered in body paint.

[18]   A majority of the Authority (Paul France and Joanne Morris – exercising her casting vote as Chair) considers that, while the footage was borderline in terms of acceptability in a 6pm news item, the information contained in the item’s introduction gave adult viewers enough time to exercise discretion. The majority notes that the item formed part of an unclassified news programme that had an adult target audience.

[19]   Taking the above contextual factors into account, the majority declines to uphold the complaint that the item breached Standard 1.

[20]   A minority of the Authority (Tapu Misa and Mary Anne Shanahan) would uphold the complaint, finding that the images described in paragraph [17] were unnecessary, salacious, and intended to titillate. The minority is of the opinion that the shots were not justified in the context of the item, and were inappropriate for inclusion in the early evening news.

Standard 9 (children’s interests)

[21]   Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times.

[22]   A majority of the Authority (Paul France and Joanne Morris – exercising her casting vote as Chair) notes that the Authority has previously stated that unaccompanied young children are unlikely to watch news programmes (for example Sime and TVWorks²). The majority considers that the information contained in the item’s introduction adequately warned parents and other caregivers about the item’s subject matter and provided them with a sufficient opportunity to exercise discretion.

[23]   Further, in light of the requirements for freedom of expression contained in the New Zealand Bill of Rights Act 1990, the majority considers that, while some of the footage was marginal in terms of its acceptability, it would be an unjustified restriction on the broadcaster’s freedom of expression to uphold a breach of Standard 9 on this occasion.

[24]   Accordingly, the majority declines to uphold the children’s interests complaint.

[25]   As stated above in paragraph [20], a minority of the Authority (Tapu Misa and Mary Anne Shanahan) would have upheld a breach of good taste and decency. For the same reasons, the minority would uphold the complaint that the broadcaster did not adequately consider the interests of child viewers during their normally accepted viewing times.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
20 October 2009

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.           Barrie Cavill’s formal complaint – 9 June 2009

2.           TVWorks’ response to the formal complaint – 10 June 2009

3.           Mr Cavill’s referral to the Authority – 1 September 2009

4.           TVWorks’ response to the Authority – 9 September 2009

¹Decision No. 2006-109

²Decision No. 2009-080