BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Marathon Man – film – offensive language – warning ought to have been broadcast – complaint upheld by broadcaster – action taken insufficient

Findings
Action taken sufficient

This headnote does not form part of the decision.

Summary

[1] The movie Marathon Man was broadcast on Prime at 8.30pm on 22 May 2002.

[2] Mrs M Charlton complained to Prime Television New Zealand Ltd, the broadcaster, that the movie contained offensive language, and that viewers ought to have been warned about its use.

[3] Prime upheld the complaint and apologised to the complainant. It explained that appropriate staff had been reminded of Prime’s collective responsibility "with emphasis placed on not making assumptions on behalf of viewers and that warnings must be specific in nature".

[4] Dissatisfied with the action taken in response to her complaint, Mrs Charlton referred her complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given, the Authority declines to uphold the complaint that the action taken was insufficient.

Decision

[5] The members of the Authority have viewed a tape of the programme complained about and have read the correspondence listed in the Appendix. The Authority determines this complaint without a formal hearing.

The Programme

[6] The movie Marathon Man was broadcast on Prime at 8.30pm on 22 May 2002. According to Prime Television New Zealand Ltd, the broadcaster:

Marathon Man is a suspense thriller set in 1970’s New York and stars Laurence Olivier and Dustin Hoffman. The plot revolves around a stash of Nazi diamonds and the attempts of ex WWII Nazis to retrieve them. Hoffman’s brother (CIA) is killed and the Nazis presume Hoffman knows what his brother knew. Hence the action heats up as Hoffman is pursued through New York.

This movie is well known for its suspense and calculated violence both being integral to the plot.

The Complaint

[7] Mrs Charlton complained to Prime that the movie contained offensive language, and that viewers ought to have been warned about its use.

The Standards

[8] Prime assessed Mrs Charlton’s complaint against Standard 1 and Guidelines 1a and 1b of the Free-to-Air Television Code of Broadcasting Practice, which read:

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.

Guidelines

1a  Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme’s classification (see Appendix 1). The examples are not exhaustive.

1b  Broadcasters should consider – and if appropriate require – the use of on-air visual and verbal warnings when programmes contain violent material, material of a sexual nature, coarse language or other content likely to disturb children or offend a significant number of adult viewers. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.

The Broadcaster’s Response to the Complainant

[9] In responding to Mrs Charlton, Prime noted that the complainant did not specify what language in the broadcast she considered to be offensive. It explained:

The first use of what might be termed offensive language occurred at 9.23pm during the phrase "…waking me up in the middle of the fucking night…" Depending on a viewer’s perspective the following words were also used: "…Christ…" (9.24pm), "…arsehole…" (9.24pm), "that son-of-a-bitch…" (9.56pm), "shit…" (9.57pm), "you fucking killed him…" (9.58pm).

[10] Prime wrote:

Given the context of the movie it is difficult to rationalise how there can be an expectation indeed a firm belief that no offensive language would occur.

[11] Prime acknowledged that it did not warn viewers about the language contained in Marathon Man. However, it said it considered that the use of the language was "mitigated" by the genre of the movie, its AO rating, the time of broadcast of the language and because the language "was used within context and was not gratuitous".

[12] Prime upheld the complaint and apologised to the complainant. It also advised her that appropriate staff had been advised of their:

collective responsibility with emphasis on not making assumptions on behalf of viewers and that warnings must be specific in nature.

The Complainant’s Referral to the Authority

[13] As she was dissatisfied with Prime’s response to her complaint, Mrs Charlton referred the complaint to the Authority. She considered that Prime should warn viewers about offensive language. In addition, she said she had been given no assurance that Prime would, in future, warn viewers about offensive language.

The Broadcaster’s Response to the Authority

[14] In its report to the Authority, Prime commented that it had reviewed its current warnings based on those used by TVNZ and Canwest, and as a result an additional warning had been produced which incorporates language and violence elements.

The Complainant’s Final Comment

[15] In the complainant’s final comment, Mrs Charlton said she was:

"quite happy" that Prime will now issue a warning before programmes re "coarse language".

[16] She also commented:

if Prime had followed procedures in the first place all this correspondence could have been avoided!

The Authority’s Determination

[17] Prime Television upheld Mrs Charlton’s complaint that the broadcast of the film Marathon Man breached Standard 1 of the Television Code as it was not preceded by a warning that the film contained offensive language. Prime advised that the appropriate staff had been reminded of the need to include specific warnings when appropriate. Mrs Charlton was dissatisfied that she had not received an assurance from Prime that it would, in future, warn viewers about offensive language. Prime informed the Authority that it had reviewed the content of the warnings used by other free-to-air broadcasters and, as a result, had revised the wording it used. Mrs Charlton was advised of Prime’s actions and expressed her satisfaction that warnings would refer to "coarse language" when the programme contained offensive language.

[18] Likewise, the Authority considers that Prime has responded responsibly to Mrs Charlton’s concerns. Accordingly, it concludes that Prime’s action, having upheld the complaint, was sufficient.

[19] The Authority observes that to impose an order 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 complaint that the action taken by Prime Television New Zealand Ltd was insufficient.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
22 August 2002

Appendix

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

1. M Charlton’s Formal Complaint to Prime Television New Zealand Ltd – 23 May 2002
2. Prime’s Response to the Formal Complaint – 30 May 2002
3. Mrs Charlton’s Referral to the Broadcasting Standards Authority – 1 June 2002
4. Prime’s Response to the Authority – 10 June 2002
5. Mrs Charlton’s Final Comment – 15 June 2002