BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Promos – Cyberzone – Angel – Star Hunter – Freakylinks – The Strip – nudity – undressing – scary faces – stripping – unsuitable for children – promos for AO programmes screened in G and PGR time bands

Findings
Standard 1 – context including programme in which promo broadcast – no uphold in each case

Standard 9 – adult themes and adult language in promo for The Strip broadcast in G time slot – uphold; other promos complied with PGR rating

No Order

This headnote does not form part of the decision.

Summary

[1] A promo for Cyberzone was broadcast during 7^th Heaven screened on TV4 between 7.30–8.30pm on 10 April 2002. Promos for Angel, Star Hunter and Freakylinks were broadcast during 7^th Heaven screened at the same time on 17 April. A promo for The Strip was broadcast during 3 News screened on TV3 between 6.00–7.00pm on 16 April.

[2] On behalf of Children’s Media Watch, its chairperson (Betty Gilderdale) complained to TV3 Network Services Ltd and TV4 Network Ltd, the broadcasters, that the content of the promos for AO programmes was unsuitable for broadcast during the PGR time slot.

[3] TV3 and TV4 noted that the Broadcasting Code for Free-to-Air Television allowed promos for AO programmes to be screened in the time slots, provided that the promo complied with the standards of the time slot in which they were screened. TV3 and TV4 maintained that each promo complained about complied accordingly and declined to uphold the complaints.

[4] Dissatisfied with the TV3 and TV4's decision, on behalf of Children’s Media Watch Ms Gilderdale referred the complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint about the promo for The Strip and declines to uphold the other four complaints.

Decision

[5] The members of the Authority have viewed a tape of each of the promos complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.

The Complaint

[6] Children’s Media Watch complained to TV3 and TV4 about five promos for named AO programmes which had been broadcast in the G and PGR time-bands. During 7^th Heaven broadcast between 7.30–8.30pm on 10 and 17 April 2002, promos for the following AO rated programmes had been screened: Cyberzone, Angel, Star Hunter, and Freakylinks. During 3 News broadcast between 6.00–7.00pm on 16 April, a promo for The Strip had been broadcast.

[7] On behalf of Children’s Media Watch, Betty Gilderdale, the Chairperson, contended that promos for AO programmes broadcast during family viewing time failed to comply with the standards relating to children. She added that the organisation also considered that The Strip should be screened at 9.30pm, rather than 8.30pm.

The Standards

[8] TV3 assessed the complaint under Standard 1, Standard 7 and Guideline 7b, and Standard 9 and Guidelines 9a, 9b, 9f, and 9h, of the Free-To-Air Television Code of Broadcasting Practice. 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 7 Programme Classification

Broadcasters are responsible for ensuring that programmes are appropriately classified and adequately display programme classification information, and that time-bands are adhered to.

Guideline

7b  Broadcasters should ensure that all promos (including promos for news and current affairs) comply in content with the classification band in which they are shown. For example, promos for AO programmes shown outside Adults Only time must conform in content with the classification of the time-band in which they are broadcast.

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.

Guidelines

9a  Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material which would disturb or alarm them.

9b  When scheduling AO material to commence at 8.30pm, broadcasters should exercise discretion to ensure that the content which led to the AO rating is not shown soon after the watershed.

9f  "Scary" themes are not necessarily unsuitable for older children, but care should be taken to ensure that realistically menacing or horrifying imagery is not included.

9h  In news breaks screened during programming specifically directed towards children, broadcasters should not normally use images or descriptions likely to alarm or disturb children, except in cases of public interest.

The Broadcaster’s Responses to the Complainant

[9] TV4 first assessed the complaint that a promo for Cyberzone broadcast during 7^th Heaven, screened on TV4 between 7.30–8.30pm, breached the standards.

[10] Pointing out that 7^th Heaven was rated PGR, TV4 began:

The 7^th Heaven programme has a reputation for being a contemporary family drama, looking at the challenges of "parenting", while also exploring the many complex issues of growing up in the world today. Some topics covered in the storylines have been drug use, drinking and driving, teen pregnancy, homelessness, suicide etc.

[11] It also pointed out the episode of 7^th Heaven screened on 10 April dealt with normal "teen angst" problems. TV4 then described the promo for Cyberzone as neither serious nor erotic and maintained that it was not inappropriate in a PGR context. It declined to uphold the Standard 1 aspect of the complaint.

[12] As for the complaint that the promo breached Standard 9, TV4 stated that promo was not adult in content. Rather, the "tone" was PGR and, it continued, it did not contain material which would disturb or alarm children or was otherwise menacing beyond what was acceptable in a PGR context. Accordingly, it declined to uphold the Standard 9 aspect.

[13] As a final comment on the promo for Cyberzone, TV4 maintained that it complied with the requirement in Guideline 7b to conform with the classification of the time-band during which it was broadcast.

[14] TV4 then assessed the complaints that the promos for Angel, Star Hunter and Freakylinks, broadcast during 7^th Heaven on 17 April, breached the standards.

[15] TV3 again referred to the content of 7^th Heaven and argued that none of the promos were unacceptable during the broadcast of a PGR rated programme. There was no nudity in any of the promos, it wrote, and the footage for each was not "particularly gruesome". It declined to uphold the Standard 1 aspect.

[16] Declining to uphold the Standard 9 aspect of the complaints, TV4 wrote:

The Angel promo showed vampire faces and was action orientated, however the series Angel is well known to the teen audience and the vampire faces would have been familiar (Angel is in its 3^rd series). The Star Hunter promo was another satirical promo which made fun of the movie it promoted. A girl took off her sweatshirt but she was wearing a bra. No nudity was shown. The Freakylinks promo was action orientated and contained "freaky" footage that was neither realistic nor particularly gruesome. None of the footage shown in any of the promos was unacceptable for a PGR audience in the context of Seventh Heaven.

[17] TV4 again referred to the requirement in Guideline 7b which, it said, it had complied with.

[18] As for the promo for The Strip broadcast during 3 News, TV3 commented on the issues dealt with in the promo, and wrote:

Because of the realistic nature of all news programmes, there is an expectation by parents that they should watch the news with their small children and make judgments about suitability as the broadcast occurs. The news is not a programme that is aimed at the child viewer.

[19] TV3 acknowledged that the promo was not designed for child viewers, but maintained that the content was neither explicit nor inappropriate. As the images were neither graphic nor in bad taste, TV3 continued, it did not accept that Standard 1 was contravened.

[20] TV3 argued that only Guideline 9a of Standard 9 was applicable, and as it was of the view that the promo was unlikely to disturb or alarm viewers, it declined to uphold that aspect.

[21] TV3 then wrote:

Broadcasters are specifically permitted to screen promotions for AO programmes in G and PGR time-bands (or news bulletins) as long as the material in the promo conforms with the classification of the time-band in which it is broadcast. This is provided for in the Code in guideline 7b … .

In the case of The Strip promo, the Committee finds that the content of the promo was appropriate for screening during the news – a programme that is not aimed at the child viewer and which because it reports the "news" of the day is generally regarded as a programme that requires parental supervision.

[22] TV3 declined to uphold all aspects of the complaints.

The Complainant’s Referral to the Broadcasting Standards Authority

[23] When she referred the complaints to the Authority, Ms Gilderdale commented that she had been hoping that the increased emphasis on children in the recently revised Code of Broadcasting Practice for free-to-air television, including the reference to the UN Convention on the Rights of the Child, would eliminate the promotion of AO programmes outside the AO time-band.

[24] Instead, she wrote, the broadcasters seemed to "manipulate the guidelines" in standard 9 by reference to Guideline 7b. "What", she asked, "can be done about it"?

The Authority’s Determination

[25] Children’s Media Watch complained that each of five specific promos broadcast on TV3 and TV4 were offensive and in breach of Standard 1 of the Television Code. Moreover, it complained that each one in some way breached Standard 9.

[26] When it determines a complaint about whether a broadcast contravenes standard 1 of the Television Code, the Authority is required to determine whether the material complained about breached currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but not determinative as to whether the programme breached the standard. Accordingly, the Authority has considered the context of the promos complained about.

[27] A promo for Cyberzone broadcast between 7.30–8.30pm on 10 April included the phrases "I’m designed to please you" and "How can I see to your pleasure?" spoken by scantily-clad women. However, there was no nudity.

[28] The Authority was concerned that phrases involving the objectification of women, which suggested adult themes, were broadcast during the PGR time slot. The PGR definition reads:

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.

[29] The promo referred to a programme which was broadcast in the AO timeslot and the AO definition provides:

AO – Adults Only
Programmes containing adult themes and directed primarily at mature audiences.

[30] Given that the programme during which the promo was broadcast, 7^th Heaven rated PGR, often deals with mature themes, the Authority on balance accepts that the promo on this occasion did not transgress the standards.

[31] The broadcast of 7^th Heaven the following week included promos for Angel, Star Hunter and Freakylinks. The Authority notes that the Angel promo included reference to scary themes. However, those themes were not dwelt on unduly and the Authority does not find the broadcast of the promo to be inappropriate at that time. The Authority is of the view that there was little in the other promos which threatened the standards.

[32] A promo for The Strip was broadcast during 3 News on 16 April. TV3 pointed out that the news is not a programme that is aimed at the child viewer. The Authority does not disagree. However, it also notes that children are often encouraged at school and by parents to watch the news. Furthermore, 3 News is broadcast during the G time band. G programmes are defined as:

G – General
Programmes which exclude material likely to be unsuitable for children. Programmes may not necessarily be designed for child viewers but must not contain material likely to alarm or distress them.

[33] The promo included the phrases "All I want to do is shag" and "When do I get my next fix?". The Authority regards these as adult themes expressed in adult language which are unsuitable for children. It concludes that the broadcast of the promo before 7.00pm, which occurred during children’s normally accepted viewing times, failed to consider the interests of children and breached Standard 9 of the Code. As the language used was vernacular rather than offensive, the Authority does not uphold a breach of Standard 1.

[34] While the Authority has upheld an aspect of only one of the complaints which were referred, it notes that there is a growing concern about promos among viewers. Viewers are often concerned that promos are broadcast unexpectedly, and as a consequence that viewers believe that they have little choice about viewing the material which is contained in promos.

[35] The Authority also notes that broadcasters seek to attract audience in a competitive environment, and that high-paced promos are one way of whetting the appetite of viewers.

[36] Broadcasters must balance their needs with those of viewers, and comply with their obligations under the Free-to-Air Television Code of Broadcasting Practice. Specific obligations are set out in Standard 7, Guideline 7b, and Standard 10, Guideline 10c which the Authority expects broadcasters to comply with fully when broadcasting promos.

[37] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision Nos. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion. For the reasons given in this decision, including in particular the time of the broadcast of the promo, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of these complaints, including the nature of the complaints and the place of promos.

For the reasons above, the Authority upholds the complaint that the broadcast by TV3 Network Services Ltd of a promo for The Strip during 3 News on 16 April 2002 breached Standard 9 of the Free-to-Air Television Code of Broadcasting Practice.

It declines to uphold any other complaint.

[38] Having upheld a complaint, the Authority may make order under ss.13 and 16 of the Broadcasting Act 1989. On the basis of the Authority’s acceptance that the broadcaster has justification for broadcasting promos, but erred principally on the time of the broadcast on this occasion, the Authority does not consider that an order is appropriate.

[39] The Authority observes that to make 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 exercises its discretion in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

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. Betty Gilderdale’s Complaints (as Chairperson, Children’s Media Watch) to TV3 Network Services Ltd and TV4 Network Ltd – 22 April 2002
2. TV3’s and TV4’s Response to the Complainant – 22 May 2002
3. Ms Gilderdale’s Referral (as Chairperson) to the Broadcasting Standards Authority – 4 June 2002
4. TV3’s and TV4’s Response to the Authority – 21 June 2002
5. Ms Gilderdale’s Final Comment – 28 June 2002