BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
COW AM – offensive behaviour – offensive language – questions about sex life

Findings
Standard G2 – AO – 10.00pm – explicit questions – context – uphold

Cross-reference
Decision Nos: 2000-100–101

Order
$250 costs to the Crown

This headnote does not form part of the decision.

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Summary

An episode of COW AM was broadcast on Channel 9 Dunedin on 29 May 2000. The programme included a sequence during which two young women and a man were questioned by the programme’s presenter about their recent sexual exploits. The programme was broadcast at around 10.00pm.

Mr J G Donaldson complained to Channel 9 Dunedin, the broadcaster, that he was "appalled" by the broadcast of what he called the "indecent interviews".

Channel 9 advised that a warning was placed at the beginning of the programme and after each commercial break to warn viewers of its content, and to inform them that the programme had been made for a target audience of students. It also advised that the segment Mr Donaldson had complained about was a regular feature of the show. It declined to uphold the complaint.

Dissatisfied with Channel 9’s decision, Mr Donaldson 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 upholds the complaint.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines this complaint without a formal hearing.

During an episode of COW AM, broadcast on Channel 9 on 29 May 2000 at around 10.00pm, there was a sequence during which two young women and a man were questioned by the programme’s presenter about their recent sexual exploits. The sequence is a regular feature of COW AM, called "The Walk of Shame".

J G Donaldson complained to Channel 9 that he was "appalled" by the broadcast of what he called the "indecent interviews". He was particularly concerned that the segment had been screened during an interview with former All Black captain Taine Randell. In his view, "The Walk of Shame" interviews would have constituted sexual harassment if conducted in a workplace, and asking such questions in the street could lead to police charges. In Mr Donaldson’s view, "The Walk of Shame" interviews should not be broadcast in future.

In its response, Channel 9 advised that a warning was placed at the beginning of the programme and after each commercial break to warn viewers of its content, and to inform viewers that the programme had been made for a target audience of students. It also advised that "The Walk of Shame" was a regular feature on COW AM.

Channel 9 maintained that "The Walk of Shame" interviews did not amount to sexual harassment or criminal conduct. It also noted that:

It seems not to be offensive to the target audience as we have had no complaints until yours.

Channel 9 declined to uphold the complaint.

As he was dissatisfied with Channel 9’s response, Mr Donaldson referred his complaint to the Authority for determination.

In its response to the referral, Channel 9 commented that the programme was "deliberately risque, feisty, provocative and sometimes audacious", but still endeavoured "not to offend the audience for which it [was] designed". It submitted that the programme did not breach broadcasting standards of good taste and decency, given its target audience of university students. It considered that Mr Donaldson was "out-of-step with the values, interests, mores and humour of the niche market which [Channel 9 sought] to entertain". It also commented:

We believe that were we to be offending our target audience’s sense of good taste and decency we would have heard from them a long time before now and the ratings for the programme would have declined. As neither of these have occurred we believe that they accept the programme as being within their defined standards of good taste and decency.

In his final comment, Mr Donaldson reiterated that the broadcast of "The Walk of Shame" during an interview with Taine Randell would have attracted more than just a student audience. He also disagreed that Channel 9 had provided sufficient warning for the segment, and with its assessment of the programme’s popularity.

The Authority’s Findings

When it deals with complaints alleging a breach of good taste and decency, the Authority takes into account the context in which the language or behaviour occurred. Standard G2 of the Television Code of Broadcasting Practice requires 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.

The Authority has considered similar complaints by Mr Donaldson about "The Walk of Shame" segment on COW AM earlier this year. In Decision Nos: 2000-100–101, the Authority declined to uphold Mr Donaldson’s complaints. It noted that Channel 9 was a locally operated broadcaster which catered to a local audience. It also observed that COW AM was a programme made about and for university students who, according to the broadcaster, were its intended audience. The Authority also noted that those who agreed to be interviewed appeared willing to respond to questions about their sexual exploits, or to play along with the interviewer. In addition, the broadcast was preceded by an explicit warning relating to its content, and was screened during AO time. In that context the Authority concluded that the risque content did not breach the good taste standard.

Although the Authority considers that the matters referred to above apply equally to the broadcast Mr Donaldson has complained about on this occasion, it considers that there is good reason to make an adverse finding on the item the subject of this complaint. The questions asked during the programme were more graphic, detailed and sexually explicit than those which were the subject of the previous complaint. For example, questions were asked about the number of times an interviewee had ejaculated. The Authority also considers that the programme’s target student audience might have been broadened by the screening of an interview with Taine Randell, and that showing "The Walk of Shame" segment in this context was inappropriate. The Authority concludes that this material was unacceptable for broadcast on free-to-air television, and accordingly that Channel 9 breached standard G2.

For the reasons given, the Authority upholds the complaint.

Having upheld a complaint, the Authority may make orders under s.13 and s.16 of the Broadcasting Act. Accordingly, it invited the parties to make submissions on penalty.

The complainant sought the broadcast of an apology by the broadcaster and reimbursement for his costs, including itemised legal costs. He also submitted that other penalties ought to be imposed.

Channel 9 submitted that no penalty was warranted, as there had been no promotion for the Taine Randell interview and as a previous complaint about the programme made by Mr Donaldson had not been upheld. Channel 9 also wrote that it would take this decision into account when making future programming decisions.

The Authority has taken into account the submissions made by both parties. In addition to the mitigating arguments raised by the broadcaster, it considers it relevant that Decision 2000-100–101 was released after Mr Donaldson’s complaint about this programme was made. The Authority has considered Mr Donaldson’s submission concerning recompense for legal expenses he incurred in the course of making his complaint. The Authority has, in the past, awarded such costs only in exceptional circumstances, and does not consider such an award is appropriate in this case. It notes also Mr Donaldson’s submissions regarding penalties other than the broadcast of a statement and costs. Such penalties are not within its jurisdiction to order.

However, the Authority does consider that a penalty is warranted because of the explicit nature of the material broadcast, and accordingly, it makes the following order.

Order

Pursuant to its powers under s.16(4) of the Broadcasting Act 1989, the Authority orders Channel 9 Dunedin to pay the sum of $250.00 by way of costs to the Crown within one month of the date of this decision.

This order shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

P J Cartwright
Chair
12 October 2000

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.    J G Donaldson’s Formal Complaint to Channel 9 Dunedin – 19 June 2000

2.    Channel 9’s Response to the Formal Complaint – 26 June 2000

3.    Mr Donaldson’s Further Letter to Channel 9 – 28 June 2000

4.    Mr Donaldson’s Referral to the Broadcasting Standards Authority – 29 June 2000

5.    Channel 9’s Response to the Broadcasting Standards Authority – 11 July 2000

6.    Mr Donaldson’s Final Comment – 11 September 2000

7.    Channel 9’s Submission on Penalty – 29 September 2000

8.    Mr Donaldson’s Submission on Penalty – 3 October 2000