Durward and Television New Zealand Ltd - 2003-001
- P Cartwright (Chair)
- J H McGregor
- R Bryant
- Lois Durward
BroadcasterTelevision New Zealand Ltd
Mo Show – interview with makers of and participants in a pornographic film – offensive – unsuitable for children
Standard 1 – gratuitous sexual activities – uphold
Standard 9 – not children’s normally accepted viewing time – no uphold
This headnote does not form part of the decision
 The making of a pornographic film near Los Angeles was shown in a segment of the Mo Show broadcast on TV2 at 10.00pm on Tuesday 3 September 2002. The Mo Show is targeted at a young adult audience and features two New Zealand comedians presenting events they encounter in a number of countries, focusing on popular music and film.
 Lois Durward complained to Television New Zealand Ltd, the broadcaster, that the segment about pornographic film-making near Los Angeles was offensive and unsuitable for younger viewers.
 In response, TVNZ said that the segment was not unsuitable for the target audience. Further, it was not screened during children’s normally accepted viewing times. TVNZ declined to uphold the complaint.
 Dissatisfied with TVNZ’s decision, Ms Durward referred her complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority upholds the good taste and decency aspect of 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.
 Mo Show is a series in which two New Zealand comedians, Mark Williams and Otis Frizzell, visit a number of places. With a focus on popular music and films and other matters which are styled to appeal to young adults, the presenters film random scenes and situations. The filming of a pornographic film near Los Angeles featured in the episode broadcast at 10.00pm on Tuesday 3 September 2002.
 Lois Durward complained about the "pornographic series of sex, either real or simulated", contained in the item. She expressed concern about the broadcast of such "trash", and urged:
Let’s clean up the programmes please. There are enough twisted people out there, and these twisted versions of life only feed the base side of people.
 In view of the matters raised by the complainant, TVNZ assessed the complaint against Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice. The Standards (and relevant Guidelines) read:
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 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.
9a Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material which would disturb or alarm them.
The Broadcaster’s Response to the Complainant
 Arguing that the segment featured "real life", rather than a twisted version of life, TVNZ wrote:
[It] reflected the rather sordid circumstances of blue movie making [and] it also included interviews with the director and with male and female actors who spoke about how and why such films are made. The [complaints] committee accepted that most people may be repelled by the idea of pornographic movies, but their existence is a reality and, surely, we should have some interest in what motivates people to make and appear in such productions?
 TVNZ pointed to the contextual matters which included the time of broadcast, the explicit warning, the AO classification, and the graphics which were used to cover the genital areas during the sex scenes. Emphasising that the series was designed for young adults who might have been interested to learn about making a pornographic movie, TVNZ contended that, in context, the broadcast did not breach Standard 1.
 TVNZ did not accept that the broadcast of the sequence complained about, at nearly 10.30pm, occurred during the "normally accepted viewing times" for children, and declined to uphold the Standard 9 aspect.
The Referral to the Broadcasting Standards Authority
 While not convinced that the Broadcasting Standards Authority would uphold her complaint, Ms Durward referred it to the Authority as she sought "higher standards for life".
The Authority’s Determination
 When it determines a complaint whether a broadcast contravenes Standard 1 of the Television Code, the Authority is required to determine whether the material complained about breached currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but does not determine whether the programme breached the standard. Accordingly, the Authority has considered the context in which the broadcast of the making of "adult" films was screened.
 There were a number of contextual matters which could lead to a decision not to uphold the complaint. These contextual matters involved the time of broadcast – nearly two hours after the 8.30pm watershed, the AO classification, and the warning. It is also noted that the graphics covered the actors’ genitalia.
 However, while these contextual elements are relevant, they are not determinative. On balance, the Authority concludes that the programme was tawdry and prurient and breached the requirement for good taste and decency. For example, the depictions in the item implied gratuitously explicit sexual activity, the words "fuck" and "fucking" were used on a number of occasions, the graphics used were designed to titillate viewers’ interest as well as to obscure the genitalia. The item made use of stereotypes when a female actor in "adult" films, but not a male actor, was asked about her family’s reaction to her work. Moreover, the Authority found the item, which involved the voyeurism of a man watching a man filming pornography, to be ineffably sad.
 The Authority considers that the contextual issues which could favour a decision that the item did not breach the standard, did not outweigh those noted in the paragraph . Furthermore, the Authority finds unconvincing TVNZ’s contention that the item could be an informative experience for younger viewers, and it is of the view that the broadcast breached Standard 1 of the Television Code.
 The time of screening was not children’s normally accepted viewing time and therefore the Authority considers that Standard 9 was not contravened.
 The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision No. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion. For the reasons given in this decision, including in particular the gratuitous nature of the item, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act.
For the reasons above, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on the Mo Show on 3 September 2002 breached Standard 1 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. Given the hour that the item was screened, the Authority is of the view that no order is necessary in this instance.
Signed for and on behalf of the Authority
30 January 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
- Lois Durward’s Complaint to Television New Zealand Ltd – 3 September 2002
- TVNZ’s Response to Ms Durward – 23 September 2002
- Ms Durward’s Referral to the Broadcasting Standards Authority – 25 September 2002
- TVNZ’s Response to the Authority – 16 October 2002
- Ms Durward’s Final Comment – 25 October 2002