BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A hearing of an appeal brought by Mr Moonen against a decision of the Office of

Film and Literature Classification (OFLC), to the Classification Review Board, was

dealt with in an item on Sunday broadcast by TV3 at 27 July 1997. Mr Moonen

sought to overturn the OFLC's decision that some photographs were objectionable.

Mr Moonen complained to the broadcaster, TV3 Network Services Ltd, that the item

was unbalanced and had treated him as inherently inferior. That had occurred, he

claimed, as the presenter had described him as "pond scum", had expressed contempt

for him, and had encouraged others to feel the same way.

While acknowledging that the presenter had agreed with the OFLC's decision, TV3

maintained that both sides of the debate about the photographs had been advanced in

the item. The reference to "pond scum" had been advanced as a rhetorical question,

TV3 maintained, but it believed it was a fair description in view of the practices

advocated by Mr Moonen. It declined to uphold the complaint.

Dissatisfied with TV3's decision, Mr Moonen 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 declines to uphold the complaint.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). In this instance, the Authority

determines the complaint without a formal hearing.

The appeal brought by Mr Moonen to the Film and Literature Classification Review

Board against a decision of the Office of Film and Literature Classification (OFLC)

was dealt with in an item on Sunday, broadcast on 27 July. The OFLC had ruled that

some photographs imported by Mr Moonen, which were not shown in the item, were

indecent. During the introduction, the presenter asked of Mr Moonen: "Is he right, or

is he pond scum?"

Mr Moonen acknowledged that he and the broadcaster held different views but, he

argued, that did not entitle the presenter to abuse him publicly and to compare him

"with a sewage by-product." He expressed surprise that he was the object of

"personal vindictiveness", and he alleged that the broadcast breached standards G6

and G13 of the Television Code of Broadcasting Practice. The latter standard had

been contravened, he complained, as he had been portrayed as inherently inferior. Mr

Moonen considered an apology broadcast by TV3 would be appropriate.

The nominated standards require broadcasters:

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

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

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, occupational

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.

TV3 stated that the item had investigated whether the material imported by Mr

Moonen was pornographic, as classified by the OFLC, or art, as Mr Moonen claimed.

The item had been introduced with a warning about the topic to be covered, although

the photographs in dispute had not been shown as it would have been unlawful to do

so.

TV3 acknowledged that the presenter had expressed agreement with the OFLC's

decision, but because both sides of the debate had been addressed, TV3 considered

that the item had been balanced. As the presenter had posed what it described as a

rhetorical question: "Is he right or is he pond scum?", TV3 argued that these

comments were acceptable as honest opinion under standard G13(ii).

When he referred his complaint to the Authority, Mr Moonen said he accepted that

people might disagree with him, but he reported, he had complained because of the

personal attack made on him during the item. Further, he wrote, the presenter's

comments amounted to an unbalanced personal attack on him. Under the Bill of

Rights Act, he continued, he was entitled to adopt and hold opinions without

interference.

In its report to the Authority, TV3 repeated that the "pond scum" observation had

been posed as a rhetorical question, and the presenter's comments were not

unreasonable in view of the publicity given to Mr Moonen's advocacy of illegal

intergenerational relationships. TV3 provided the Authority with a number of press

clippings referring to Mr Moonen accumulated over the years.

In his final comment, Mr Moonen maintained that the "pond scum" remark, which

TV3 claimed was a rhetorical question, was in fact directed at him. He also pointed

out that he was appealing against the classification of the photographs to which the

item referred. He insisted, on the issue of balance, that there were arguments which

supported his case for intergenerational sexual relationships, and he said that he

supported the notion that consent should be a defence in a sexual relationship between

an adult and a person aged 12 to 16 years.

The arguments advanced by Mr Moonen are covered in more length in the Appendix.

In the Authority's opinion, the complaint focusses on the use of the term "pond

scum", and alleges that the use of this phrase amounted to breaches of standards G6

and G13.

As the item covered the issues raised by Mr Moonen's appeal, and included balancing

comment from his counsel, the Authority considers that comment on "pond scum"

was acceptable as a provocative introduction. The item did not describe Mr Moonen

as "pond scum". Rather, the presenter asked the viewer to decide if this adjective was

appropriate, and in the Authority's opinion, sufficient background was provided for

viewers to agree, or to disagree, with the appellation.

Mr Moonen contended that standard G13 was contravened as he was advancing a

"political belief". The Authority finds it difficult to accept that the case advanced by

Mr Moonen for what he calls "intergenerational relationships" fits this description or,

indeed, whether it is a "question of a controversial nature", as intended by standard

G6. It concludes that neither standards G6 or G13 are brought into question by the

item.

Mr Moonen referred specifically to these two standards. However his letter could be

interpreted as alleging a breach of standard G4, which requires broadcasters:

G4   To deal justly and fairly with any person taking part or referred to in

any programme.

In view of the rhetorical nature of the "pond scum" comment, the Authority does not

consider that this standard was breached.

For the reasons above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
15 December 1997

Appendix

Mr Moonen's Complaint to TV3 Network Services Ltd – 5 August 1997

Gerald Moonen of Lower Hutt complained to TV3 Network Services Ltd about the

description of him given by the presenter on Sunday broadcast by TV3 on Sunday

morning the 27th July.

Mr Moonen acknowledged that he and the presenter held different views but, he

argued, that did not entitle the presenter to abuse him publicly and to compare him

with a sewerage by-product. Attaching a transcript of the presenter's remarks, Mr

Moonen said that it was apparent that the presenter felt contempt for him and

encouraged others to feel the same way. He wrote:

I don't know how come this man has such a negative image of me, but I surely

somehow must have touched a raw nerve in him observing the ferocity with

which he has attacked me. Not only was this not conducted in private, where at

least we would have had the possibility of sorting things out. No, his contempt

was broadcast nationwide on TV3, which did harm to my good name, as one

can easily see by reading the facts.

Moreover, given the item's explicit focus on censorship, Mr Moonen expressed

surprise that he was the object of "personal vindictiveness".

Mr Moonen considered that the broadcaster breached standards G6 and G13 of the

Television Code of Broadcasting Practice. The broadcast was unbalanced, he said, as

the presenter repeated media comment in a partial way. It contravened standard G13

as, through the language used, he was portrayed as inherently inferior. Expressing his

opinion that the comments also breached the Bill of Rights, Mr Moonen concluded:

I am of the honest opinion that I have been insulted and abused by Mr Hoskings.

I regard his behaviour as totally inappropriate and mischievous. As a result of

this I am expecting an apology from him and TV3, to be broadcast in the

SUNDAY arts programme (From text to be supplied) and considerable damages

for the emotional pain suffered and the damage to my good name.

TV3's Response to the Formal Complaint – 11 September 1997

Assessing the complaint under the nominated standards, TV3 explained that the item

had investigated Mr Moonen's claim that material which he had imported and which

had been classified as pornographic, was in fact art. Both sides of the debate were put

in the item and the presenter had expressed his agreement with the decision of the

Office of Film and Literature Classification (OFLC). Because of the subject of the

item, it added, a warning had been given but it was unlawful to show the photographs

in dispute.

Because both sides of the debate were advanced, TV3 maintained, the item had been

balanced. TV3 contended that Mr Moonen was not described as "pond scum".

Rather, the presenter posed the rhetorical question: "is he right or is he pond scum?".

TV3 continued:

It is the Standards Committee's opinion that other editorial comment made by

the host regarding your beliefs, serve to balance the item where your position is

advanced by both yourself and your lawyer. The comments and the host's

opinions were based on 45 detailed descriptions of the photographs provided by

the Film of Literature Classification Authority and the arguments used by you to

justify them.

TV3 also wrote:

In coming to a resolution the TV3 Standards Committee also took into account

the Broadcasting Standards Authority Decision 1996-062. This stated that it did

not consider that balance was required when speaking of (specifically) your

beliefs "since it does not believe that those who advocate illegal practices,

especially morally abhorrent ones which involve children, have legitimate

grounds to object to being criticised for their views".

As for the standard G13 aspect of the complaint, TV3 said the comments made were

acceptable under the exception for honest opinion. Further, it reported:

In decision 4/95 the Broadcasting Standards Authority concluded that

paedophilia is not a sexual orientation. In decision 1996-062 the Authority

concluded that paedophilia is not a political belief which requires protection

under G13.

Accordingly, the Standards Committee finds that the item did not breach G13

and declines to uphold the complaint.

Mr Moonen's Referral to the Broadcasting Standards Authority – 24 September 1997

Dissatisfied with TV3's decision, Mr Moonen referred his complaint to the

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

As the basis of his complaint was set out in his letter to TV3, Mr Moonen focussed on

TV3's reply. First, he said, the OFLC's decision was being reviewed following his

appeal to the Review Board, based on his belief that the OFLC was biased. He then

reiterated his point that he did not object to people who disagreed with him, but had

complained because he was personally attacked during the broadcast, and others were

encouraged to join in. The programme, he wrote, was unbalanced.

TV3 had advised that the presenter agreed with the OFLC's decision and Mr Moonen

asked what were his qualifications to determine such issues. He wondered whether

the presenter's opinions were based on his prejudices.

Mr Moonen argued that the comments complained about amounted to an unbalanced

personal attack. They were not balanced by allowing his lawyer to speak on the

works in dispute.

Mr Moonen disagreed with the comment contained in an Authority decision that he

advocated illegal practices. He wrote, "I have never advocated anyone to break the

law". His work, he wrote, involved seeking a change to the law and, with reference to

Broadcasting Standards Authority Decision No:1996-062, he stated:

TV3 is now using the above faulty statement from the Broadcasting Standards

Authority to legitimise their abuse. This is not acceptable and I cannot let this

pass, otherwise in the future every Tom, Dick and Harry, like TV3, can justify

abusing me by using this statement. Even though I have very little faith in the

fairness and impartiality of the Broadcasting Standards Authority, I have to ask

the Authority to reconsider that statement and to withdraw it.

Mr Moonen also argued, contrary to another statement from the Authority, that the

Bill of Rights gave everyone the right to adopt and hold opinions without interference.

Accordingly, his belief about intergenerational relationships was political and one to

which G13 applied:

In conclusion, he wrote:

1. I have not been convicted of any pornography or any indecency charges.

2. That most of the material under discussion were not mine.

3. That all the material was 'under review' at the time of Mike Hosking's

unfortunate remarks. Under the law this means that the Review Board

must view the material as if the OFLC had not made any decisions about

it.

4. That the Classification Review Board had at that point not given its

verdict, and the matter was therefore sub judice.

TV3's Report to the Authority – 21 October 1997

Repeating that the reference to "pond scum" was a rhetorical question, TV3 advised

that the presenter's comments were based on research which included detailed

descriptions of the photographs which were found to be objectionable. Some of the

photographs, it added, were viewed, at the hearing, when Sunday interviewed Mr

Moonen.

TV3 also said its research involved noting Mr Moonen's past advocacy for what he

described as "intergenerational sex" between children and adult males. Mr Moonen,

TV3 maintained, advocated illegal practices as he believed that it was acceptable for

adults to have sexual relationships with children.

As for Mr Moonen's claim that consensual intergenerational sexual relationships

between children and adults was a political belief, TV3 contended that child/adult

sexual relationships involved abuse. However, that was not a matter dealt with on the

programme in dispute. The Bill of Rights freedoms to hold beliefs, it added, were

subject to any limits reasonable in a democratic society.

Mr Moonen's Final Comment – 25 October 1997

Mr Moonen alleged that TV3's claim that the Sunday reporters had seen some of the

photographs was untrue. He wanted to know who had shown them to the reporter,

and what they contained.

Mr Moonen's Second Final Comment – 17 November 1997

Apologising for not replying earlier as he had been ill, Mr Moonen maintained that

the term "pond scum" was directed at him. Further, to use the OFLC decision as the

basis for that term was unacceptable, he wrote, as he had appealed the OFLC ruling.

With regard to the images TV3 had claimed to have seen, Mr Moonen said the

broadcaster had not replied to his letter. He did not accept that TV3 would have seen

them, and accused it of lying to prove its case.

As for the reference to the witchhunt, Mr Moonen claimed that the articles published

over the years were nothing more than the prejudices of journalists. Further, some of

the material was the subject of a defamation action.

Turning to the reference to AMBLA and the claim that he advocated illegal practices,

Mr Moonen said that he had not done so. Moreover, his belief that the lowering of the

age of consent would benefit society, did not mean that he told people to break the

law.

On the basis that it was an accepted fact that many young people were sexually active,

Mr Moonen disputed TV3's argument that all the sexual activity involving people

aged between 12–16 years involved abuse. While his argument was a political one,

TV3, he concluded, was guided only by its prejudiced opinions.