BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A joke which referred to simulated sex between a cat lover and her pet was made in the

Sunday Theatre programme "Highwater" broadcast on TV One on 5 October 1997

beginning at 8.30pm.

Anne Dingwall of Christchurch complained to Television New Zealand Ltd, the

broadcaster, that the remark alluded to bestiality, which was an offence in New Zealand.

In addition, she considered that even though the remark was made in jest, it exceeded the

bounds of good taste and decency.

TVNZ responded that given the context of the remark and the fact that it was made in

jest, there was no breach of the good taste standard. Turning to the alleged breach of the

principles of law, TVNZ noted that the programme was a work of fiction. Further, it

suggested that the remark could not be construed as encouraging bestiality, but even if it

did, it was acceptable for fiction to deal with illegal activity without breaching the

standards. Dissatisfied with TVNZ's response, Ms Dingwall 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 does not have the jurisdiction to determine the

complaint.

Decision

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

the correspondence (summarised in the Appendix). On this occasion, the Authority

determines the issue of jurisdiction without a formal hearing.

The Authority's consideration of this complaint begins first with the matter of whether

it has the discretion to receive a complaint referral which is out of time. Complainants

have the right to refer formal complaints to the Authority for investigation and review

when they are dissatisfied with the broadcaster's decision. Section 9 of the

Broadcasting Act 1989 deals with time limits. Section 9(1) reads:

s.9(1) The Authority shall not accept a complaint referred to it under section

8(1)(a) of this Act after the expiry of the period of 20 working days beginning

with the first working day after the day on which the complainant received

from the relevant broadcaster notice of its decision in relation to the complaint.

The response from TVNZ in which it advised that the complaint was not upheld was

dated 17 November 1997. Mrs Dingwall was also advised that if she wished to refer the

complaint to the Authority for investigation and review, she had to do so within 20

working days of receipt of that letter. Mrs Dingwall calculated that the time expired on

or about 17 December, so her referral of 15 December was couriered to the Authority.

However, although it was postmarked Wellington on 17 December, it was not delivered

to the Authority until 6 January 1998.

The complaint was received outside the 20 day time limit. The Authority has no

discretion to receive a complaint which is out of time. The Act is specific. In the

circumstances, the Authority must decline to accept the referral. It notes that Mrs

Dingwall's complaint about the inadequacy of the postal service lies with others and not

with the Authority.

For the reasons set forth above, the Authority decides it does not have the

jurisdiction to determine the complaint.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
26 February 1998

Appendix

Anne Dingwall's Complaint to Television New Zealand Ltd – 31 October 1997

Mrs Dingwall of Christchurch complained to Television New Zealand Ltd about its

broadcast of the Sunday Theatre programme "Highwater" on 5 October 1997 beginning at

8.30pm.

During a discussion among the characters as to how to depict the relationship between a

catlover and her cat in an advertisement, one of the characters suggested "simulated sex".

Mrs Dingwall pointed out that bestiality was an offence in New Zealand and exceeded

the norms of good taste and decency. She suggested that the character appeared to be

promoting or encouraging a criminal act, albeit in jest. Mrs Dingwall wrote:

I am unable to accept that the subject of bestiality has wide acceptance in the

community as a topic for general conversation, let alone as a matter for making

jokes about. On the contrary, I believe the subject is regarded with revulsion,

bordering on taboo. In my opinion, the suggestion of bestial behaviour in the

manner shown in "Highwater" exceeded the bounds of good taste and decency

usually accepted in New Zealand society and expected on Television One.

Acknowledging the contextual element, Mrs Dingwall said she did not believe the

reference to bestiality, whether in jest or not, would be typical of those in the

advertising industry. She considered the remark reflected poorly on the industry.

Mrs Dingwall also expressed her concern that the programme was funded by NZ On Air,

and she questioned whether the phrase was contained in the original script approved by

it. If the programme was sold overseas, Mrs Dingwall said she would be concerned it

would reflect poorly on New Zealand's standards of television production.

TVNZ's Response to the Formal Complaint – 17 November 1997

TVNZ noted that the line to which Mrs Dingwall referred was found in the setting of an

agency meeting at which a catfood commercial was being discussed. It wrote:

The difficulties it poses, especially with the insistence by the client that her own

cat be used, is reflected in the tense atmosphere into which the agency head

offers (in rather pompous terms) this advice:

"Think of it as a vision – a golden vision of the mutual love between a cat

and a cat lover."

To which the advertising executive at the centre of the story (Hugh) responds –

sarcastically and tongue in cheek:

"I suppose simulated sex is out of the question?"

It is part of the plot showing Hugh's growing disenchantment with the artificial

world of the advertising agency.

TVNZ said it respected Mrs Dingwall's concerns about the line, but considered she had

taken it too seriously. It reminded her that it was a work of fiction and that the line was

clearly delivered in jest.

With respect to standard G2, TVNZ did not consider it exceeded the bounds of good

taste and decency. It noted that the standard specifically allowed for context to be taken

into account. It did not believe that the conversation shown in a fictional setting

breached the standard. It also noted that the programme was classified AO.

As far as s.4(1)(b) and standard G5 were concerned, it made two points. First, it did

not believe that even in the fictional setting, the remark could be seriously interpreted as

encouraging bestiality. Second, it noted that even if that were the case, it was acceptable

to deal with illegal activity in fiction without breaching the standard.

It declined to uphold the complaint.

Mrs Dingwall's Referral to the Broadcasting Standards Authority – 15 December

1997

Dissatisfied with TVNZ's decision in relation to the good taste aspect of the complaint,

Mrs Dingwall referred it to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

Mrs Dingwall's letter was lodged with NZ Courier Post on 15 December, and was

postmarked in Christchurch that day on 15 December. The courier envelope was

postmarked Wellington on 17 December, but the letter was not received by the

Authority until 6 January 1998.

Mrs Dingwall did not agree that the remark was permissible on the grounds that it was

fictional. In her view, the nature of the dialogue warranted measurement against

recognised standards of acceptability. She did not believe that because it was a work of

fiction, it was justified to introduce a subject which may be considered offensive or

taboo. She added that she could not understand how the introduction of bestiality

enhanced a viewer's appreciation of the programme. She wrote:

"Highwater" is a work of fiction, designed to entertain. In this regard, I consider

the remark more likely to have breached the standard than if it had occurred in

the context of a documentary, designed to record reality and inform.

Mrs Dingwall pointed out that people who were not mentally stable had difficulty

distinguishing between fiction and reality and between what is or is not socially

acceptable. She noted the recent report of the trial of a paranoid schizophrenic in which

evidence was given that he had engaged in bestiality.

To TVNZ's response that the remarks were spoken in jest, Mrs Dingwall replied that

nevertheless she did not consider they were justified. Further, she did not agree that the

AO rating formed part of the context. Certain subject matter was not justified by the

rating, she argued. She continued:

Since context is a consideration in determining compliance with the Act, in my

opinion, the particular scheduled screening time and viewers' expectations linked

therewith deserve to be taken into account also.

She noted that TV One had a reputation for screening quality programmes and viewers

expected good quality television drama in the Sunday night slot. In this broader sense of

context, Mrs Dingwall maintained that the bestiality remark breached the good taste

standard.

Mrs Dingwall observed that the subject of bestiality was taboo to other cultures and

that this was the first time she had witnessed a reference to bestiality in a fictional

context in New Zealand television. She expressed her concern that viewers might expect

to see and hear further references to bestiality in other broadcasts.

In her view, the complaint provided the Authority with an opportunity to establish the

boundary for good taste and decency in the interests of both viewers and broadcasters.

TVNZ's Response to the Authority – 15 January 1998

TVNZ advised that it had little further to add. It believed the complainant had taken the

comment altogether too seriously, and that in developing it into a discussion on

bestiality had blown it all out of proportion.

It noted her argument that bestiality was a taboo subject and pointed out that taboo

subjects were often broached in dramas, including literary greats such as Sophocles

(incest) and Plato (paedophilia).

Mrs Dingwall's Final Comment – 27 January 1998

Mrs Dingwall referred to TVNZ's response and argued that whether drama portrayed

taboo subjects or not, it was a legal requirement of broadcasters that they observe

currently accepted standards of good taste and decency (standard G2, and s.4(1)(a) of

the Broadcasting Act 1989).

In Mrs Dingwall's opinion, the phrase "currently accepted" ensured that programmes

reflected rather than led community standards. She said that she concurred with John

Stuart Mill in "On Liberty" when he said ". . . so long as what we do does not harm

others."

Mrs Dingwall considered that it would be beneficial for television producers and

broadcasters to have certainty as to the standards applicable when referring to the

subject of bestiality, and for viewers to have certainty as to expectations of programme

standards.