BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Under Investigation, broadcast on 19 May by Channel 2, examined Auckland's

downtown "red light district" in Fort Street. The reporter spoke to some people who

worked in a variety of businesses there and to a detective who noted that some

businesses were well run and some were not so well run. The following item involved

an interview with a sex worker in Holland who spoke, while naked for some of the

time, of the conditions under which she worked.

Mr Smits complained to Television New Zealand Ltd, the broadcaster, that the item

was unbalanced and breached the standard requiring good taste and decency. TVNZ

did not respond within 60 working days and Mr Smits referred the complaint to the

Broadcasting Standards Authority under s.8(1)(b) of the Broadcasting Act 1989.

TVNZ advised the Authority that it had earlier informed Mr Smits that it did not

intend to respond to complaints written in an abusive manner, as had occurred on this

occasion, and urged the Authority to decline to determine the complaint.

For the reasons given below, the Authority declined to determine the complaint.

Decision

The members of the Authority have viewed the item to which the complaint relates

and have read the correspondence (summarised in the Appendix). As is its practice,

the Authority has considered the complaint without a formal hearing.

Mr Smits complained to TVNZ about an Under Investigation item which examined

Auckland's "red light" operations in Fort Street. It was followed by an interview with

a prostitute in Holland who, while naked for some of the time, spoke of the working

conditions for Dutch sex workers. Describing both segments as obscene despite the

warning and in breach of the standard requiring good taste and decency, Mr Smits said

that the broadcast promoted "red light" districts as places of entertainment and,

consequently, breached the standard requiring balance.

When TVNZ failed to respond within 60 working days – the statutory time limit – Mr

Smits referred the complaint to the Authority.

In response to the Authority's request for the reasons for not responding to Mr

Smits' complaint, TVNZ advised that it had told Mr Smits in December 1993 that it

did not intend to respond to complaints containing insulting and intemperate language.

Although the current letter of complaint contained little insulting material other than

describing the presenter as a "sanquine pratt" (sic), supplementary letters to two

people involved in the programme's production had used offensive language.

TVNZ also pointed out that the Authority had had occasion (Decision No: 62/94) to

warn Mr Smits about his language. That decision recorded the following comment:

The Authority noted Sky's displeasure at the tenor of the correspondence

from Mr Smits, which contained intemperate and abusive language. The

Authority also records its displeasure at the style Mr Smits has adopted in his

complaint, in spite of its request to him to be more moderate in his language.

He has been advised that no further complaints will be accepted if couched in

similar language.

TVNZ provided the Authority with a copy of its letter sent to Mr Smits last

December which pointed out that Mr Smits' past correspondence had on occasions

been abusive and unreasonable and that a recent letter of complaint was:

... also extreme in tone and absolutely unacceptable in its use of obscene

language, used to vilify TVNZ and our staff.

TVNZ said that it had been patient in responding to such abuse in the past but now

advised that it would not respond to any correspondence from Mr Smits on any

subject.

As will be apparent, the Authority is aware that, on occasions, Mr Smits uses

language in his complaints and correspondence to broadcasters which is both offensive

and personally abusive. Mr Smits has been advised by both TVNZ and the Authority

that such language is unacceptable but, nevertheless, has continued to resort to that

style. As the Authority has explained to Mr Smits, correspondence which makes use

of offensive language is contrary to the spirit of the complaints process. Having

regard to the advice given to Mr Smits and the language used in the supplementary

letters to two production staff involved in the item complained about, the Authority

decided that TVNZ was justified in not responding to the complaint. As a result, it

has declined to determine the referral from Mr Smits about TVNZ's lack of response

within the statutory time limit.

In previous instances where the Authority has considered referrals under s.8(1)(b) on

the grounds that the broadcaster has failed to respond to a formal complaint within the

60 working days statutory time limit, it has been the practice for the broadcaster, after

being reminded of its responsibilities, to respond to the substance of the complaint.

The Authority's determination in those cases has thus involved a review of the

broadcaster's decision under s.8(1)(a).

However, in this case the broadcaster has explicitly declined to respond (justifiably, in

the Authority's view) and, consequently, it is the complaint referred under s.8(1)(b) –

that the broadcaster failed to respond within 60 working days – which is the matter

that the Authority has declined to determine.

Nevertheless, and despite the above conclusion, TVNZ made available to the

Authority a copy of the broadcast complained about and the substance of Mr Smits'

complaint has been considered by the Authority and the following comments, while

not in the form of a decision, are included as a guide to the Authority's approach to

the issues raised.

Mr Smits alleged that the broadcast of segments of Under Investigation breached

standards G2 and G6 of the Television Code of Broadcasting Practice. They require

broadcasters:

G2  To take into consideration currently accepted norms of decency and taste

in language and behaviour, bearing in mind the context in which any

language or behaviour occurs.

G6  To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature.

Standard G2, he alleged, was breached by the broadcast of an item about prostitution

and the explicit display of female nudity and standard G6 had been contravened as

"red light" districts had been portrayed as "tourist attractions" and places of

entertainment.

Taking into account the fact that the interview with the Dutch prostitute – who was

naked for some of the interview – did not focus on her nudity but dealt factually with

the conditions for sex workers in Holland, the Authority, decided that, in context, the

behaviour shown had complied with the accepted norms of decency.

With regard to the standard G6 aspect of the complaint, the Authority acknowledged

that the item had not involved a discussion about the broader social and moral

questions in regard to prostitution. The Authority acknowledged Mr Smits' concern

about the exploitation which is experienced by those who are sex workers. However,

the Authority also observed that the item was not presented as a discussion of these

issues. Rather, it described some of the reality which applied in one part of Auckland.

Moreover, in view of the item's sceptical tenor, the Authority did not concur with Mr

Smits when he suggested that Fort Street had been promoted as an entertainment

centre or as a tourist attraction. The item had covered the issue which it dealt with in

a manner which had not contravened the requirement for balance, impartiality and

fairness in standard G6.

The Authority records that had it accepted the referral from Mr Smits, it would not

have upheld his complaint.

For the reasons given above, under s.11(b) of the Broadcasting Act 1989, the

Authority, in all the circumstances, declines to determine the complaint

referred by Mr Smits that Television New Zealand Ltd failed to advise him

within 60 working days of receiving the complaint, as required by s.8(1)(b) of

the Act, of its decision on his complaint about the broadcast of Under

Investigation on 19 May 1994.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
7 November 1994

Appendix

Mr Smits' Complaint to Television New Zealand Limited - 23 May 1994

Mr Phillip Smits of Auckland complained to Television New Zealand Ltd about the

broadcast of an item on Channel 2's Under Investigation at about 9.05pm on 19 May

1994.

He argued that the item was unbalanced and the depiction of a naked young Dutch sex

worker "with her oppressor" was "absolutely and utterly obscene" and, accordingly,

in breach of the standard requiring taste and decency. The broadcast of a warning had

not made the broadcast acceptable and, Mr Smits concluded:

In short, you made and broadcast a promotion for Ôred light' districts - as

Ôtourist attractions' and as places of Ôentertainment'. For that you will answer

to me.

Further Correspondence

In a lengthy letter dated 26 June 1994, Mr Smits referred the complaint to the

Authority as he had not received a reply from TVNZ. He referred to a letter TVNZ

had written to him in December 1993 when he had been advised that TVNZ refused to

accept any further formal complaints from him.

Mr Smits went through the Under Investigation item complained about in great detail,

arguing that the item did not examine the exploitation of women which was involved

but instead promoted the sex industry. After an examination of a sex worker's

conditions of work in Amsterdam, Mr Smits summarised his complaint:

The segment on Amsterdam was imbalanced. That it was produced Ôoverseas'

is not relevant (opinion). Mr Wallington bolted it on to his item (which was

also slanted and one-eyed) to reinforce his perception of Fort St and Ôred light

districts'. He abandoned objectivity and balance to push his barrow. Ya can't

do that in current affairs reporting of controversial issues. It's in breach of

Broadcasting Standards. The offensiveness of the Ônude interview' was real

and arguable. There was one (only) justification for it - to expose a pimp's

cruelty and parasitism (not to expose a Ôsex workers' body). Like everything

else in the item, no justification was given.

He attached some articles from the print media and copies of some correspondence he

had had with two Auckland City Councillors.

The Authority advised Mr Smits that it could not accept the referral of a complaint

until the broadcaster had allowed 60 working days to elapse without responding.

Mr Smits Complaint to the Broadcasting Standards Authority - 29 August 1994

As 60 working days had elapsed without a reply since the date of complaint, Mr

Smits referred his complaint to the Broadcasting Standards Authority under s.8(1)(b)

of the Broadcasting Act 1989.

TVNZ's Response to the Authority - 14 September 1994

TVNZ advised the Authority that since the present complaints system came into

operation, it had accepted complaints from Mr Smits which were often in abusive,

insulting and intemperate language.

Having wearied of his invective and personal abuse, TVNZ had advised Mr Smits on

16 December 1993 that it had decided not to accept or respond to any abusive

correspondence from him.

Nevertheless, Mr Smits complained about Under Investigation and, in addition to his

lengthy analysis of the programme (of which the Authority had been sent a copy):

TVNZ wishes to make the Authority aware that Mr Smits wrote

supplementary letters to both the producer of the programme and to the

Director of Programme Production. In the former he described the programme

as "crap" and speaks of the content as being a "blow job". In the latter he

again describes the programme as "crap".

In a letter to the Group Chief Executive he described the presenter as a

"sanquine pratt" (sic).

TVNZ continued:

We believe we are in our rights to require more temperate behaviour from our

complainants and consequently do not propose to comment on this formal

complaint. We note that in decision 62/94, the Authority has warned Mr

Smits that it will not accept complaints couched in intemperate terms, and we

urge the Authority in this case to exercise its powers under Section 11(b) of

the Broadcasting Act 1989.

TVNZ added that it was quite prepared to accept complaints from Mr Smits which

excluded vulgarities, noting that it was processing two such complaints at the present

time.

Mr Smits' Final Comment

In his final comment, Mr Smits attached copies of the letters sent to two

Communicado executives and asked what was outrageous about them. He maintained

that TVNZ was telling the Authority to reject his complaint on the basis of three - not

altogether unusual - words.

Enclosing the letters of complaint which TVNZ was currently processing and

maintaining that they were not "noticeably different" to his other correspondence, Mr

Smits argued that it was a diversion from what he regarded as:

... one of the worst pieces of biased, one-sided Ôreporting' I have ever seen

anywhere

By "barrow-pushing" in favour of red light districts, he argued that it had been

unbalanced.

Further Correspondence

At the Authority's request, in a letter dated 11 October 1994 TVNZ supplied it with

a copy of its letter to Mr Smits (dated 16 December 1993) in which he was advised

that TVNZ did not intend to accept or respond to correspondence which used abusive

language.