BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

During Newsnight broadcast on Channel 2 about 10.50pm on 21 February 1995, there

was an item about the Downstage production of "Skin Tight". Brief excerpts from the

play were included and, in the nude scenes, the actor's penis was electronically

masked.

Mr Lowe complained to Television New Zealand Ltd that deliberately masking the

actor's penis discriminated against Caucasian men and that the original event was

distorted by the masking, in contravention of broadcasting standards.

In response, TVNZ explained that its editorial decision to mask the penis

electronically was to take account of the sensibilities of the audience. While it

acknowledged that the theatre audience would have seen the actor naked on stage, it

suggested that they would have had some idea about its content before attending, as

compared to television viewers who cannot make that choice. In declining to uphold

the complaint, TVNZ denied that the masking of the penis discriminated in a sexist or

racial manner, and did not accept that the event was significantly distorted.

Dissatisfied with that decision, Mr Lowe referred the complaint to the Broadcasting

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

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

Decision

The members of the Authority have viewed the item and have read the correspondence

(summarised in the Appendix). As is its usual practice the Authority has determined

the complaint without a formal hearing.

Excerpts from the play "Skin Tight" and an interview with the actor were included in

an item on Newsnight broadcast on Channel 2 on 21 February 1995. In the nude

scenes shown from the play, the actor's penis was electronically masked on two

occasions for about three seconds each time.

Mr Lowe complained to TVNZ that it was inappropriate to mask the depiction of

nakedness and, since there was no appropriate standard in the Television Code of

Broadcasting Practice which encompassed his concern, that it breached standards

G13 and G19. The former requires broadcasters:

G13 To avoid portraying people in a way which represents as inherently

inferior, or is likely to encourage discrimination against, any section of

the community on account of sex, race, age, disability, occupation

status, sexual orientation or the holding of any religious, cultural or

political belief. This requirement is not intended to prevent the

broadcast of material which is:

i) factual, or

ii) the expression of genuinely-held opinion in a news or

current affairs programme, or

iii) in the legitimate context of a humorous, satirical or

dramatic work.

The latter reads:

G19 Care must be taken in the editing of programme material to ensure

that the extracts used are a true reflection of and not a distortion of the

original event or the overall views expressed.

Mr Lowe alleged that the breach of standard G13 occurred because it was

discriminatory to Caucasian men that the actor's penis was obscured and further, that

the masking obscured material which was factual. Secondly, he alleged that the

masking breached standard G19 as the extract used was not a true reflection of the

original event.

Mr Lowe explained that he was making the complaint in order to seek clear guidelines

from the Authority about the portrayal of frontal nudity, and noted that he had made

two previous complaints, one of which had been rejected, and one of which had been

dismissed as trivial.

The Authority decided that this complaint was not an acceptable use of the

complaints procedure in view of the fact that the complaint was not about the

broadcast itself but was instigated in order to establish a principle. Further, the

standards cited were not applicable and were misinterpreted by Mr Lowe.

Accordingly, the Authority decided that this was an appropriate occasion to exercise

its powers under s.11(a) of the Broadcasting Act 1989 which reads:

s.11 The Authority may decline to determine a complaint referred to it

under section 8 of this Act if it considers -

(a) That the complaint is frivolous, vexatious or trivial;

The Authority declined to determine the complaint on the grounds that it considered it

to be trivial.

For the reasons set forth above, the Authority declines to determine the

complaint under s.11(a) of the Broadcasting Act 1989.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
27 July 1995

Appendix

Mr Lowe's Complaint to Television New Zealand Ltd - 16 March 1995

Mr John Lowe of Oakura complained to Television New Zealand Ltd that an item

concerning the Downstage production "Skin Tight" broadcast on Newsnight on 21

February 1995 at about 10.50pm was in breach of broadcasting standards. During the

item, he noted, the actor's penis was electronically masked twice for a duration of

about 3 seconds each time.

Mr Lowe explained that he had complained of this practice previously and his

complaint had been rejected by the Broadcasting Standards Authority. On another

occasion he had complained when penises were not masked and the Authority had

dismissed his complaint as trivial. He added:

In view of the evident lack of clear guide-lines or codes about Ôfrontal' nudity

from the BSA, I must refer to the Indecent Publications Tribunal decision of

1968: "We are of the opinion that natural and straightforward nude

photographs or collections of them in reproduction constitute a first category

of publications and we regard them as unexceptionable."

Mr Lowe suggested that so long as the depiction of nakedness was innocent of

contrived behaviour and not intended for lascivious purposes or commercial

exploitation, then it should not be sullied with masks. However, since in his view

there was no appropriate standard in the Television Code of Broadcasting Practice

which encompassed that concern, Mr Lowe complained that the item breached

standards G13 and G19.

The breach of standard G13 occurred, he alleged, because the masking of the penis

obscured material which was factual. In addition he alleged that there was an element

of racial discrimination since documentaries of people of different ethnicity were

routinely shown in ÔG' time slots. Secondly he alleged that the masking was in breach

of standard G19 which requires that editing must ensure that the extracts used are a

true reflection of the original event.

Finally Mr Lowe explained that a dangerous message was conveyed to children when

they were denied knowledge about the human form and that unresolved needs during

development produced unhappiness, distress, frustration, anger and eventually

violence in some people.

TVNZ's Response to the Formal Complaint - 28 April 1995

TVNZ pointed out that although the complaint alleged breaches of standards G13 and

G19, the producer of Newsnight was conscious of complying with standard G2 (good

taste).

Accepting that few children would have been watching Newsnight, TVNZ maintained

that nevertheless it had to take into account the sensibilities of the audience watching

(dominated by teenagers and young adults). In its view, it was a matter of editorial

judgment and it believed the correct decision was made.

TVNZ noted that while the actor was seen naked on stage by the theatre audience, the

situation was different when transferred to the television screen, since television

viewers did not have the ability to make a choice in the same way that theatre goers

did.

Turning to standard G13, TVNZ rejected the complaint that the broadcast

discriminated in a sexist or racial manner. With reference to standard G19, it did not

accept that the event was significantly distorted by the masking of the penis. It noted

that the fact that only short extracts from the play were shown indicated that it was

not an attempt to reproduce faithfully the original play.

Mr Lowe's Complaint to the Broadcasting Standards Authority - 17 May 1995

Dissatisfied with TVNZ's response, Mr Lowe referred his complaint to the

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

First, he questioned why TVNZ had considered his complaint under standard G2

when he only sought a finding under standards G13 and G19.

He commented on TVNZ's assertion that it was necessary for it to take into account

the sensibilities of the potential audience, recognising that some would be disturbed by

nudity. In its explanation, TVNZ had commented that those who had chosen to see

the live performance would have known it contained nudity, whereas television

viewers would not. Mr Lowe pointed out that there had been fair warning that the

news item contained nudity, since several promos explicitly containing nudity had

been broadcast during the evening.

Mr Lowe explained that one of his central concerns was that portraying nudity as a

rare phenomenon encouraged a salacious attitude to it. He maintained that the

obscuring of the penis was a breach of standard G13 because the masking obscured

material which was factual. He noted that documentaries were broadcast which

contained totally naked people of different ethnicity and suggested that it was

discriminatory to Caucasians that the penis was masked in this item.

Mr Lowe also challenged TVNZ's view that had the title of the programme indicated

that the material was of an avant garde nature, it would not have been necessary to

mask the penis. He argued that viewers of Newsnight were themselves an avant garde

audience and readily accepting of nudity.

Responding to TVNZ's assertion that the original event was not "significantly"

distorted by masking the penis, Mr Lowe noted that the word "significant" is not

contained in the standard. However, he contended, the breach was culturally very

significant.

Mr Lowe suggested changes to the wording of standard G2 which he maintained were

required in order to permit the portrayal of innocent nudity.

TVNZ's Response to the Authority - 31 May 1995

Responding to Mr Lowe's suggestion that it had considered the complaint under a

standard not raised (G2), TVNZ pointed out that it was attempting to explain to Mr

Lowe that all of the programme standards were considered during the preparation of a

programme and that the producer on that occasion believed it was necessary to mask

the penis in order to comply with standard G2.

It added that the complaint was considered, as Mr Lowe requested, under standards

G13 and G19. It was not tested against standard G2, but that G2 explained why the

electronic masking was used.

Mr Lowe's Final Comment - 8 June 1995

Mr Lowe repeated that his central concerns were that standards G13 and G19 were

breached by the broadcast. He explained that his purpose in taking the complaint to

the Authority was to have other issues than standard G2 brought to the attention of

TVNZ's producers.

He wrote:

TVNZ has "little to add" and made no comment at all on the challenge to

produce any evidence (complaints, incidents, surveys, reports) that counters

the claims summarised in the penultimate paragraph in my complaint of the

17th of May.

If the BSA knows of any evidence which counters the evidence I've gathered

(including the BSA's own material) I would be grateful for some indication of

where to find it. In the absence of that the complaint must be upheld.

Mr Lowe repeated that he wanted his children to grow up in a land of consistent

ethics, and that consistency was only possible around a hard core or principle. He

sought a ruling on the acceptability of showing penises in prime time.

Finally he sought comment from the Authority as to value of the suggested changes to

standard G2 which he proposed.

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