BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

Warning: this decision includes discussion of sexually explicit and violent content

[This summary does not form part of the decision.]

The Authority has not upheld a complaint that the movie Fifty Shades Darker was in breach of standards because it glorified a manipulative and abusive relationship. The Authority found viewers were sufficiently informed about the nature of the content to enable them to manage their own viewing. The movie did not contain any content that would go beyond audience expectations for the classification and timeband, especially given the well-publicised nature of the movie. The movie did not encourage violent or law-breaking activity. Finally, the Authority also found that people who engage in BDSM (a sexual practice that involves the use of physical control, psychological power, or pain) are not a recognised group for the purposes of the discrimination and denigration standard.

Not Upheld: Good Taste and Decency, Violence, Law and Order, Discrimination and Denigration

The broadcast

[1]  Fifty Shades Darker is the movie adaption of the second book in the erotic romance Fifty Shades trilogy. The movie follows the reestablishment of a relationship between Anastasia Steele (‘Ana’) and Christian Grey (‘Christian’) after Ana left Christian at the end of the first movie. Christian is a powerful billionaire who engages in sexual practices involving BDSM,¹ which was a key reason for Ana leaving Christian at the end of the first movie. In the first movie Christian made Ana sign a contract setting out the rules for their sexual relationship. In Fifty Shades Darker Ana and Christian agree to start with a more traditional sexual relationship without a contract, but Ana progressively asks to participate in some of the practices Christian enjoys and the movie depicts these sexual encounters.

[2]  The movie was classified AO and broadcast at 9.25pm on 2 February 2020 on Three. It was preceded by a full-screen warning which read ‘This programme is rated Adults Only. It contains language, sexual material and nudity that may offend some people.’ The warning was accompanied by a voice-over which said ‘This programme is rated Adults Only’ and the AO rating was displayed in the top right corner of the screen after each ad break.

[3]  The synopsis in the TV Guide listed the movie as AO and read ‘While Christian wrestles with his inner demons, Anastasia must confront the anger and envy of the women who came before her.’ The electronic programme guide read ‘Just as Christian and Ana begin to build trust again, shadowy figures from Christian's past start to circle the couple, determined to destroy their hopes for a future together.’

[4]  In considering this complaint, the members of the Authority have watched a recording of the broadcast and read the correspondence listed in the Appendix.

The complaint

[5]  Mitchell Crow complained that the broadcast breached the good taste and decency, violence, law and order, and discrimination and denigration standards of the Free to Air Television Code of Broadcasting Practice.² We set out each of his submissions under the relevant standards below.

[6]  In general, the complainant was concerned that the Fifty Shades franchise glorified the ‘abusive and manipulative’ treatment of women in BDSM relationships. He submitted:

There was never [a] valid reason to argue that the first movie was anything short of a glorification of domestic abuse, but moving on to later show this film only reinforces the impossibility of defending the previous, while also being indefensible in and of itself…In both films, this abusive and manipulative treatment is glorified, and the woman's inability to move past those experiences because of the trauma the first movie established is argued by the narrative to be a positive trait rather than the serious harm it actually represents.

[7]  Much of Mr Crow’s submissions drew on plot points and elements from the first movie, Fifty Shades of Grey, and while we understand that this was contextualising his concerns about the franchise as a whole, our role is limited to considering what was broadcast and does not include examining the cumulative impact of the Fifty Shades trilogy.

[8]  MediaWorks TV did not uphold Mr Crow’s complaint. We have included its detailed submissions under each standard below.

The relevant standards

[9]  The good taste and decency standard (Standard 1) requires broadcasters to maintain current norms of good taste and decency consistent with the context of the programme and the wider context of the broadcast. Relevant contextual factors include the programme classification, time of broadcast, any audience advisories (including warnings), the target and likely audience, and audience expectations. Broadcasters should also take effective steps to inform audiences of the nature of the programme, and enable viewers to regulate their own and children’s viewing behaviour.³

[10]  The violence standard (Standard 4) requires broadcasters to exercise care and discretion when portraying violence. The purpose of the standard is to protect audiences from unduly disturbing violent content.⁴ Violent content should be appropriate to the context of the programme and classified carefully.

[11]  The law and order standard (Standard 5) states that broadcasters should observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast. This standard is designed to prevent programmes that actively promote illegal behaviour or undermine the law and legal processes.⁵

[12]  The discrimination and denigration standard (Standard 6) protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.

Our findings

[13]  When we consider a complaint that a broadcast has breached broadcasting standards, we weigh the value of the programme, and the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast. In particular, we have regard to the genre and context of the content aired. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[14]  The complainant has argued that this movie, and the entire Fifty Shades franchise, has a harmful and misleading message about the BDSM community and that it glorifies and promotes relationships which are manipulative and abusive.

[15]  We do not agree that the movie, as it was broadcast, was likely to cause harm to audiences to the extent that would justify regulatory intervention. The reasons for this conclusion are more fully set out in our findings under each standard below.

[16]  Our consideration of this complaint takes into account the context and genre of the movie. Fifty Shades Darker is a dramatic romance, a fictional representation of a relationship designed to entertain. It is not intended to be a realistic representation or a nuanced critique of the psychological and physical power dynamics in sexual relationships that may involve violence. Other plot points in the movie such as Ana’s easy success at her job, Christian’s overwhelming wealth and luxurious home, his generous gift-giving and the extravagant events he and Ana attend also indicate to audiences that, while set in the real world, the movie is depicting wish fulfilment for some viewers.

[17]  While we recognise that Mr Crow was concerned about some messages and themes contained within the movie, as we have previously noted, it is not our role to criticise broadcasts which some may consider to be in poor taste or ‘indecent’, provided they do not cause harm at a level requiring our intervention.⁶ We found that given audience expectations for a movie designed to tantalise and entertain, it was well within the broadcaster’s right to freedom of expression to broadcast this movie.

Good taste and decency

[18]  The complainant argued that the broadcast breached this standard for the following reasons:

• The movie is the sequel to one which ‘was explicitly about an abusive relationship’ and ‘glorifies the same abusive behaviour’.
• It ‘includes less extreme abuse’ as bad, which ‘clearly suggest[s] that abusive behaviour is somehow arbitrarily worse when it doesn’t involve a written contract…’
• In this movie, Christian ‘openly’ confesses to the ‘abuse’ that took place in the first movie, ‘making the original movie’s content less defensible through such admission.’
• ‘As with the first film, it also actively and intentionally misrepresents the BDSM community by displaying such communities as overtly abusive, and glorifying such abuse in the guise of BDSM. Every person who the film suggests to be part of the BDSM community is unambiguously abusive to a degree that would get them ostracised from any real-world community involved in such practices (if not arrested in several instances), while attempting to imply that it's a realistic portrayal of such groups.’

[19]  MediaWorks argued that it did not breach this standard as ‘sufficient care was taken to ensure the material was acceptable in its context’ for the following reasons:

• ‘It is difficult to imagine a scenario where the audience might have more information about a broadcast than in this case. The high level of awareness of the Fifty Shades franchise ensured that the vast majority of viewers would have had a reasonable - if not detailed - understanding of the film’s storyline and themes.’
• ‘…it is reasonable to assume that even before the viewer reached the twin safeguards of AO classification and content advisory, they had a considerable level of expectation for the type of content the film would feature. Therefore, they were able to make a well-informed viewing choice on behalf of themselves and their children.’
• ‘…even in the rare circumstances that viewers did not have some level of pre-existing understanding of Fifty Shades Darker’s subject matter, and had not made themselves aware of the film’s certification and had missed the clear audience advisory at the beginning, they would have gleaned from the film’s tone and evolving storyline that “darker” material was impending, and would have made an alternative viewing choice if this did not align with their preferences.’

Our analysis

[20]  Where broadcasters take effective steps to inform their audiences of the nature of their programmes and enable viewers to regulate their own and their children’s viewing behaviour, they are less likely to breach this standard.⁷ Where content is likely to offend or disturb a significant section of the audience, an appropriate audience advisory should be broadcast prior to the content.⁸

[21]  In this case, a full-screen warning was displayed at the beginning of the movie for approximately 5 seconds. It read ‘This programme is rated Adults Only. It contains language, sexual material and nudity that may offend some people.’ The warning was accompanied by a voice-over which said ‘This programme is rated Adults Only’ and the AO rating was displayed in the top right corner of the screen after each ad break.

[22]  The context of the broadcast is a key consideration in determining whether current norms of taste and decency have been observed.⁹ In considering this complaint, relevant contextual factors included:

• The broadcast was classified Adults Only (AO) and shown at 9.25pm on a Sunday evening. It was preceded by The Block Australia.
• The AO classification indicates that the programme contains adult themes and is directed primarily at mature audiences. AO programmes may only be screened between midday and 3pm on weekdays and after 8.30pm until 5am.¹⁰
• Fifty Shades Darker was classified R16 for its cinematic release in New Zealand.
• The movie is an adaption of the second book in the popular Fifty Shades trilogy. The movie franchise is well known and has been the subject of much controversy and criticism despite its commercial success.¹¹ Given this, audience expectations for the Fifty Shades franchise are well established.
• The movie was immediately preceded by an on-screen and voice-over warning (as detailed at paragraph [21] above).
• The AO classification label was displayed after each ad break.
• The TV Guide listed the AO classification and the synopsis read ‘While Christian wrestles with his inner demons, Anastasia must confront the anger and envy of the women who came before her.’
• Along with the AO classification, the electronic programme guide read ‘Just as Christian and Ana begin to build trust again, shadowy figures from Christian's past start to circle the couple, determined to destroy their hopes for a future together.’
• There was little or no public interest in the broadcast.
• The target and likely audience was adults.

[23]  Given the warnings, the synopsis in the programme guide and other information available to audiences about the movie, we did not consider that the content (including the depiction of sex, while using props, music and setting to imply elements of BDSM) would have exceeded audience expectations for the movie in this context. We consider that there was sufficient information provided so that those who may be offended by the content of this movie could make an informed decision not to watch it, and accordingly it did not breach the good taste and decency standard.

[24]  For those reasons, we do not uphold the complaint under this standard.

Violence

[25]  Mr Crow submitted that although the movie was ‘less explicit’ than its prequel, the broadcast was in breach of the violence standard for the following reasons:

• The violence was ‘intentionally incorporated into emotional abuse of the characters involved in a setting where psychological and emotional abuse is at the core of the story.’
• ‘The original film was about a young inexperienced woman being traumatised, and this film is about the ongoing abuse that woman is subjected to.’

[26]  MediaWorks argued that the broadcast did not breach the violence standard as:

• ‘The Violence Standard does not require broadcasters to exclude violence from programmes.’
• The violence in the movie was not violence ‘in the sense understood by the Standard’.
• Nevertheless, the violence in the movie was ‘clearly justified by its context’ and ‘was central to the film’s storyline.’

Our analysis

[27]  The guidelines to the violence standard state that any depiction of, or reference to, violence should be justified by context.¹² As the context of the portrayal of any violence is crucial to our assessment of this standard, we have focussed our assessment on the contextual factors.

[28]  Programmes in which rape or sexual violence feature should be treated with care, and broadcasters should use an audience advisory if the content is likely to disturb.¹³ Content should not include any combination of violence and sex designed to titillate, beyond current socially acceptable community norms.¹⁴

[29]  The movie as broadcast had a small amount of violence, some of which took place in the context of consensual sexual encounters (primarily ‘spanking’). Other moments of violence included:

• Ana’s boss physically intimidating her and making aggressive sexual advances towards her
• another character threatening Ana and Christian with a gun.

[30]  With reference to the contextual factors discussed in paragraph [22] and the audience advisory referred to in paragraph [21], we did not consider that any of the violence depicted was unduly disturbing or that it would have gone beyond audience expectations for the fictional narrative of this movie.

[31]  The complainant was concerned that the movie was glorifying domestic abuse. We acknowledge that domestic abuse and the way that psychological manipulation relates to physical abuse is an important social issue. The question under the violence standard is whether the reference to violence in this movie, in the context in which it was presented, would have caused harm justifying our intervention. In the context of this fictional movie, we do not consider the standard was breached.

[32]  As the movie did not contain unduly disturbing violent content, and any references to violence were part of the narrative in the fictional context in which it was set, and given the strong protections for audiences, we do not uphold the complaint under this standard.

Law and order

[33]  The complainant submitted that in the movie ‘the violence and abusive behaviour itself is very clearly a demonstration of illegal behaviour’. He argued that as the movie depicts one protagonist ‘committing a series of illegal acts’ against the other protagonist and ‘presents this abusive behaviour as being normal,’ it is in breach of the law and order standard:

…suggesting that illegal abuse of a spouse is reasonable if you write a contract about it, even when the terms of that agreement (or even whether or not the partner in question has signed such an agreement) are being disregarded on a whim.

[34]  MediaWorks submitted that there was no content in the movie that ‘encouraged viewers to break the law or glamorised crime’, so it did not breach the law and order standard.

[35]  We agree. While the complainant questions the lawfulness of some of the behaviour in the movie, the standard is not designed to prevent the depiction of law breaking, even if it is not condemned by the broadcast.¹⁵ Context is important and a distinction will usually be drawn between factual and fictional or dramatic depictions.¹⁶ The standard is concerned with broadcasts that actively undermine or promote disrespect for the law or legal processes.¹⁷ We did not observe any content in the movie that actively promoted serious antisocial or illegal behaviour.¹⁸ This was a fictional movie exploring the relationship between the characters and it would have been clear to the audience that this was a dramatic element of the plot.

[36]  Therefore, we do not uphold the complaint under this standard.

Discrimination and denigration

[37]  The complainant submitted that the broadcast denigrated the BDSM community:

• The movie ‘actively and intentionally misrepresents the BDSM community by displaying such communities as overtly abusive, and glorifying such abuse in the guise of BDSM.’
• ‘Every person who the film suggests to be part of the BDSM community is unambiguously abusive to a degree that would get them ostracised from any real-world community involved in such practices (if not arrested in several instances), while attempting to imply that it's a realistic portrayal of such groups.’
• ‘…the story has consistently been taken as one which expects to be taken seriously as a realistic representation of the community it is actively portraying as abusive to a sickening degree.’
• The movie ‘deliberately twists its representation of a community which is built upon a strong foundation of consent and responsibility.’

[38]  MediaWorks argued that the standard had limited application to Fifty Shades Darker, which is a ‘dramatic, fictional work’. It also commented:

…the type of relationship depicted in the film was unlikely to have appealed to all viewers…this relationship occurred between two individuals in a fictional story. It could not reasonably be considered to have encouraged discrimination against, or denigration of, a class of people or section of the community.

[39]  The first question is whether people who engage in BDSM are a recognised section of the community to whom the discrimination and denigration standard applies. In our view, they are not. The standard only applies to recognised sections of the community which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.¹⁹ While it can be argued that for some people BDSM is a sexual orientation, the Human Rights Act describes sexual orientation as ‘a heterosexual, homosexual, lesbian or bisexual orientation'²⁰ (rather than by reference to any particular sexual practice preferences). This guides our interpretation and application of the discrimination and denigration standard. Accordingly, we do not consider this standard applies in respect of the BDSM community.

[40]  Therefore, we do not uphold the complaint under this standard.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair
21 July 2020

Appendix

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

1  Mitchell Crow’s complaint to MediaWorks – 3 February 2020

2  MediaWorks’ original decision – 3 March 2020

3  Mr Crow’s referral to the Authority – 3 March 2020

4  MediaWorks’ confirmation of no further comments – 16 June 2020

¹ ‘An umbrella term used to describe a sexual practice that involves the use of physical control, psychological power, or pain. It typically includes the components of bondage and discipline, domination and submission, or sadism or masochism.’ – ‘Speaking BDSM: A Glossary of Terms Used to Describe BDSM’, <everydayhealth.com>, 26 September 2019
² The Free-to-Air Television Code of Broadcasting Practice was refreshed, taking effect from 1 May 2020, and includes changes to the classifications and timebands applied to free-to-air television programmes. This complaint has been determined under the April 2016 version of the Free-to-Air Television Code of Broadcasting Practice as the relevant broadcast pre-dated 1 May 2020.
³ Guideline 1b
⁴ Commentary: Violence, Broadcasting Standards in New Zealand Codebook, page 14
⁵ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
⁶ Six Complainants and Television New Zealand Ltd, Decision No. 2018-010 at [19]
⁷ Guideline 1b
⁸ Guideline 1c
⁹ Guideline 1a
¹⁰ Definitions, Broadcasting Standards in New Zealand Codebook, page 9
¹¹ ‘With a likely overall cume of around $1.3 billion global, it’ll be one of the biggest R-rated franchises ever…’ see Box Office: Hugh Jackman's “Greatest Showman” Is Still Leggier Than “Titanic” (Forbes, 25 February 2018)
¹² Guideline 4a
¹³ Guideline 4e
¹⁴ Guideline 4f
¹⁵ Commentary: Law and order, Broadcasting Standards in New Zealand Codebook, page 15
¹⁶ Guideline 5b
¹⁷ Commentary: Law and order, as above
¹⁸ Guideline 5a
¹⁹ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15
²⁰ Human Rights Act 1993, s 21(1)(m)