del la Varis and TV3 Network Services Ltd - 2002-206
- P Cartwright (Chair)
- J H McGregor
- R Bryant
- Victoria del la Varis
BroadcasterTV3 Network Services Ltd
3 News – interview with actor Matt Damon included scenes from action movie "The Bourne Identity" – excessive violence – no warning – alarm children
Standard 10 and Guideline 10g and Standard 9 – majority – sufficient care shown given item’s introduction and type of violence portrayed – no uphold – minority – material inappropriate in G rated time-slot – uphold
Standard 1 and Guideline 1a – acceptable in context – no uphold
This headnote does not form part of the decision.
 An interview with actor Matt Damon while visiting Sydney was included in an item on 3 News broadcast by TV3 between 6.00 – 7.00pm on 28 August 2002. The interview included two fight scenes from his recent film "The Bourne Identity".
 Victoria del la Varis complained to TV3 Network Services Ltd, the broadcaster, that the fights scenes contained extreme violence and were shown out of context and without a warning. She considered that they were inappropriate at that time.
 In response, TV3 said the item made clear the violence was fiction, and it was not gratuitous. It did not consider that a warning was necessary and it declined to uphold the complaint.
 Dissatisfied with TV3’s decision Ms del la Varis referred her complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold the complaint.
 The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Actor Matt Damon was interviewed for 3 News while in Sydney promoting his new film "The Bourne Identity". The item included some information about his career and his recent film was described as an action film. The item also included some footage from the film, which showed two fight scenes. The item was broadcast on TV3 between 6.00–7.00pm on 28 August 2002.
 Expressing concern that her two young sons had been exposed to scenes of violence while watching the news, Ms del la Varis complained that item breached the standards relating to the protection of children, to violence and to good taste and decency.
 Ms del la Varis considered that the children were not protected by showing a scene of "extreme violence" taken out of context. She maintained that the item should have been preceded with a warning. The total item, she said, went beyond the bounds of good taste and decency and, she concluded:
When we are shown excerpts of 30 seconds of vicious punching as part of a promo for a film, or an item about a visiting film star (which the item was about incidentally) you are asking the public to accept such violence as trivial, normal and basically perfectly acceptable.
 TV3 assessed the complaint under the standards nominated by the complainant. The Standards (and relevant Guidelines) in the Free-to-Air Television Code of Broadcasting Practice provide:
Standard 1 Good Taste and Decency
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.
1a Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme’s classification (see Appendix 1). The examples are not exhaustive.
Standard 7 Programme Classification
Broadcasters are responsible for ensuring that programmes are appropriately classified and adequately display programme classification information, and that time-bands are adhered to.
Standard 9 Children’s Interests
During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.
Standard 10 Violence
In the preparation and presentation of programmes, broadcasters are required to exercise care and discretion when dealing with the issue of violence.
10g News, current affairs and factual programmes will, by their nature, often contain violent, disturbing or alarming material. Broadcasters should not falsify, by omission, a world in which much violence and brutality occurs. When such scenes are necessarily included to serve the public interest, the fact that violence has painful and bloody consequences should be made clear. However, editors and producers must use judgement and discretion in deciding the degree of graphic detail to be included in news programmes when children are likely to be watching. Warnings within news programmes must be used as appropriate.
The Broadcaster’s Response to the Complainant
 TV3 said that the interview with actor Matt Damon included some "brief promotional footage" in which he was involved in two fight scenes. Most of the interview, it wrote, involved the actor answering questions about his career and his personal life.
 Describing Standard 10, Guideline 10g as the most relevant nominated standard, TV3 stated that the item did not depict real violence. The item made clear that the footage came from a film in which actors did not get hurt. It added, "even small children know this".
 TV3 emphasised that the violence occurred during an excerpt included in a news item and, referring to comments from the Broadcasting Standards Authority, said that the Authority accepted that news programmes were viewed rarely by unsupervised young children. In TV3’s opinion, a supervising adult would have had time to switch off the set, or would have explained that the fighting was fictitious. It wrote:
The fighting scenes excerpt was relevant to the item and therefore not in the [standards] committee’s view gratuitous as it was part of a discussion with Damon about his role as an "action man" and made up a very small part of the item as a whole.
 In view of those matters, TV3 considered that neither Standard 1 nor Standard 10 was breached, and on the basis that it did not regard Standard 7 as relevant, it did not uphold that aspect.
 Turning to Standard 9, TV3 acknowledged that 3 News was broadcast during a time which was otherwise considered a children’s viewing time. However, it added, the news was neither aimed at nor likely to be of interest to small children. TV3 continued:
The News team which edited this item for screening considered that the fight scenes would be seen and understood as fictional by viewers of news including quite young children who would understand that the item was about the actor Matt Damon and his latest movie and was not vision of real men, really fighting. As a result the team did not consider that a warning was necessary.
 TV3 declined to uphold the Standard 9 aspect.
The Referral to the Broadcasting Standards Authority
 Ms del la Varis expressed concern that TV3 had screened the item without a warning to assist supervising adults, adding that she found some of the scenes disturbing.
 Dealing first with requirement for care from broadcasters when broadcasting scenes of violence, the complainant did not accept that the violence was justified by the context. She described the scenes, and the accompanying sound track, as "explicit, brutal, graphic and disturbing". As the violence lacked context, she wrote "how can it be anything other than gratuitous?"
 Ms del la Varis disagreed with TV3 that the violence was not gratuitous just because it came from a film rather than from real life. Her young children, she wrote, were unable to differentiate what was real from what was acting. She asked why the item had not included a warning, and was unable to understand why the broadcast of such scenes was considered to be in the public interest. The broadcaster, she maintained, had not exercised care and discretion as required by the standard.
 Ms del la Varis also maintained that the broadcast breached the requirement for good taste and decency in Standard 1. She disagreed that young children would recognise the fictional nature of the violence. Moreover, she said, the broadcast breached Standard 9 as young and older children, despite TV3’s approach, would have been disturbed by the violence, and it was immaterial whether the scenes were acting or real.
 In response to TV3’s suggestion that a supervising adult would either have switched the set off or explained the "play" aspect of the fighting, Ms del la Varis described it as "disingenuous". She commented:
Firstly, it was TV3’s responsibility to warn me of violent content, and not mine to turn off the television. Secondly, telling my children that the fighting they saw was "just tricking" does little to alter the harm they have been done in being exposed to scenes of gratuitous violence.
My job as a mother is to protect my children and to stand up for their rights. As a viewer it is my right to have the Standards upheld. I trust in your Authority that you will investigate this matter further to determine whether or not TV3 has upheld its responsibility as a broadcaster.
The Broadcaster’s Response to the Authority
 Noting that the complaint raised the matter of the content of the news, the broadcaster advised:
TV3 is aware that some children may be watching the News but it makes decisions on content based on the established premise that young children do not choose to watch the news if they are free to choose to watch something else.
 TV3 cited a number of decisions where the Authority had accepted that premise and, on the basis that children who watch the news will be supervised by an adult, TV3 contended that it was the supervising adult’s role to protect young children from the more distressing elements carried in the news.
 TV3 acknowledged that the material complained about did not fall within the "public interest". Nevertheless, it was presented in the context of an interview with a movie star and, TV3 argued:
Viewers of the News can be assumed to be adult or supervised child – it remains the Committee’s view that these viewers would appreciate the fictional nature of the fights depicted and as a result be unaffected by the footage.
 TV3 also contended that, in the context of the interview, the violence was not gratuitous. As for the need for a warning, TV3 stated:
The responsibility of the broadcaster is to consider the use of a warning where the content is likely to disturb viewers of the programme. The point takes us back to the discussion above about viewer expectation while watching the major News bulletin. The Committee does not consider a warning was required for the screening of this fictional material. The complainant also reiterates her concern for the rights of children who may be watching the News – again we feel we have adequately covered this ground in our earlier decision and in the discussion about viewer expectation above.
 TV3 concluded:
Frankly, this Committee is of the view that it is not good practice to watch the News in the company of children as young as 2½ and 4 and it strains credibility to believe that a normal functioning adult would be distressed by the footage (clearly fictional) identified by this complainant. Standards should, in our submission, always be assessed against a robust "norm" not against a sensitive "exception" to the norm. It is our submission that this complainant’s concerns fall outside the robust norm and into the realm of the sensitive. It would, in our view, be quite wrong for the content of News bulletins to be assessed against the standard of what might upset or confuse very young or very sensitive members of the viewing public.
The Complainant’s Final Comment
 Expressing concern at the tone of TV3’s letter and its comment on "good parenting practice", the complainant said she considered it was TV3’s role to assist her through the use of warnings to make appropriate decisions. She wrote:
By showing excerpts of gratuitous violence taken out of context, TV3 is helping inure society to violence. TV3’s defence that the scenes were in context; in context of "the news and an interview about a movie star" is unsatisfactory and not credible.
 Ms del la Varis argued that TV3 was using gratuitous violence to entertain and "to enliven the evening news". She denied that she expected the news to be sanitised, but maintained that the depiction of violence without due warning did not respect the rights of children. She also disagreed with TV3 when it described her as "sensitive". Her husband, a farmer and a rugby player, she added, shared her concerns about the violence screened.
 Turning to TV3’s suggestion that the responsibility for what young children saw on the news rested with the supervising adult, the complainant responded:
This statement attempts to deflect from TV3’s failure to carry out their responsibility as a broadcaster in this instance by failing to use a warning when screening "The Bourne Identity" item. A warning would have enabled me to change channel, or to distract my children. Instead TV3 Standards Committee is trying to discredit my judgement, and my husband’s judgement as parents, and more than that it criticises our family life, when the truth is that it was not our judgement that was awry, but theirs. Let TV3 broadcast responsibly and leave it to us as parents to decide what is appropriate television-viewing in our home.
The Authority’s Determination
 The complainant considered the extract from "The Bourne Identity", screened while 3 News profiled actor Matt Damon, was excessively violent and inappropriately screened at that time. In response, TV3 contended that it was accepted that children do not watch the news unsupervised, and that the adult present would have switched off the set or explained the fictional nature of the violence to a child. Because the violence was fictional, TV3 added, it did not regard a warning as necessary.
 The Authority accepts that TV3 correctly presents its position with regard to the likelihood of children alone viewing the news, other than to note that it regards unsupervised viewing as "unlikely", as opposed to "rare", which was the word used by TV3. Nonetheless, the Authority adds, this view does not enable broadcasters to give minimal thought to child viewers during the news hour. The main news on TV3 (and TVNZ) is broadcast in "G" time, and the Authority will judge each complaint on its own facts.
 The Authority also accepts the complainant’s argument that pre-school children may well not be able to distinguish between fictional and real violence. Further, it considers that the violence shown on this occasion, excerpts from the film "The Bourne Identity" included on 3 News, could well be frightening to young children.
 A majority of the Authority is of the opinion that the item did not breach the standards relating to violence or the requirement to consider the viewing interests of children. In reaching this decision, the majority takes into account the fictional nature of the violence and the likelihood of adult supervision. Moreover, it observes, the scenes included in the excerpt did not contain extreme violence. It notes that shortly into the excerpts, the item referred to an "action film," which would enable the adult to switch-off the set or, more probably, to be ready to explain the scenes screened.
 A minority (Professor McGregor) considers that the broadcast breached Standards 9 and 10 of the Television Code. The minority points out that the video version of the film had been rated "M" (for a mature audience) and included an explicit warning with regard to violence. While accepting that there could well be other scenes in the film which gave also rise to the warning about violence, the minority decides that the showing of violent scenes from a "M" rated film in a "G" time slot without a warning contravened the standards. The minority considers that an explicit warning would have been appropriate. The minority queries the broadcaster’s claim that quite young children would understand the violence to be fictional.
 The Authority is unanimous in its decision that the item did not breach the good taste and decency requirement of Standard 1. The broadcast of the item in the news context was not inappropriate.
 The full Authority considered TV3’s comment in paragraph  about parental "good practice" when watching news. The complainant described the tone of TV3’s letter as "insulting". The Authority believes the letter was patronising to the complainants and parents.
 A majority of the Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the reasons above, a majority of the Authority declines to uphold the complaint about the broadcast by TV3 Network Services Ltd of an item on 3 News on 28 August 2002 breached Standards 9 and 10 of the Free-to-Air Television Code of Broadcasting Practice.
The Authority unanimously declines to uphold the other aspects of the complaint.
Signed for and on behalf of the Authority
17 December 2002
The following correspondence was received and considered by the Authority when it determined this complaint:
- Victoria del la Varis’ Complaint to TV3 Network Services Ltd – 10 September 2002
- TV3’s Response to Ms del la Varis – 11 October 2002
- Ms del la Varis’ Referral to the Broadcasting Standards Authority – 14 October 2002
- TV3’s Response to the Authority – 6 November 2002
- Ms del la Varis’ Final Comment – 16 November 2002