Edwards and SKY Network Television Ltd - 2004-092, 2004-093
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Fiona Edwards
ProgrammeThe 5th Wheel
BroadcasterSKY Network Television Ltd
Complaint under section 8(1)(a) of the Broadcasting Act 1989
The 5th Wheel – two broadcasts – overt sexual content and nudity – allegedly bad taste – allegedly inadequately classified – allegedly unacceptable themes for children
Standard S2 (good taste and decency) – context – complaint about 6.30pm broadcast upheld
Standard S2 (good taste and decency) – context – complaint about 1.20pm broadcast not upheld
Standard S20 (children) – complaint about 6.30pm broadcast – unacceptable for broadcast during children’s normally accepted viewing times – upheld
Standard S20 (children) – complaint about 1.20pm broadcast not upheld
Section 16(4) – $1,500 costs to the Crown
This headnote does not form part of the decision.
 An episode of The 5th Wheel, an American dating show which featured overt sexual content, was broadcast on Sky1 at 6.30pm on 9 February 2004 and repeated on 10 February 2004 at 1.20pm. In the episode, two men and two women went on a date at an interactive game park, and then to dinner. At dinner, a third woman joined the date and the contestants then chose who they preferred to date again.
 During the episode one of the female contestants was shown topless and another female contestant appeared to be completely undressed. One of the male contestants undressed to his underwear and performed a sexually suggestive dance for one of the women. The contestants were shown kissing, licking and sitting on each other and sexual activity was implied. Graphics were used to mask some of the nudity and conduct.
 Fiona Edwards complained to Sky Network Television Ltd, the broadcaster, about the broadcast. She considered that the programme:
- was inappropriately classified PG and contained content which was unacceptable for children to view
- breached standards of good taste and decency.
 Ms Edwards submitted that the programme breached broadcasting standards because it contained nudity and adult themes. She considered that the programme degraded women and was “completely unsuitable in content for a children’s programme or a programme with a PG rating”.
 Sky assessed the complaint under Standard S2 of the Standard Code of Broadcasting Practice for Subscription Television. Standard S2 requires broadcasters, in the preparation and presentation of programmes:
S2 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.
Broadcaster's Response to the Complainant
 Sky advised the complainant that it had reviewed the programme to determine whether it had breached Standard S2 (good taste and decency) by screening the programme at 6.30pm. It wrote:
The humour in the programme is decidedly “over the top” to the point of being almost ridiculous or slapstick. It’s a humorous look at dating and relationships based on exaggerated sexual innuendo and is not intended for children’s viewing as young children are unlikely to appreciate and understand the humour and may be disturbed by the programme. This programme does not appeal to everyone and the occasional person may be offended.
Sky does not believe that Standard S2 has been breached however agrees that the programme is not acceptable for children’s viewing.
Bearing your comments in mind, we have taken the following steps:
1. Upgraded the rating to M (suitable for mature adults).
2. Made arrangements to move the programme to a 10.30pm timeslot.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Ms Edwards referred her complaint to the Authority for investigation and review.
 The members of the Authority have viewed a tape of the item complained about and have read the correspondence listed in the Appendix. The Authority determines this complaint without a formal hearing.
 The Authority must consider the context of a broadcast to determine whether it breaches Standard S2 (good taste and decency). Accordingly, it notes the following relevant matters about the broadcasts:
- The complaint is about two broadcasts of the same episode, one was broadcast at 6.30pm and one at 1.20pm.
- The episode was rated PG.
- The 6.30pm episode was scheduled before an episode of The Simpsons, a programme on Sky1 which would usually attract younger viewers.
 The Authority also notes that the programme was broadcast on a subscription television channel. It recognises that there may be a case for more lenient programme content regulation on subscription television than on free-to-air television. However, on this occasion the Authority considers that the broadcast breached broadcasting standards. It contained gratuitous nudity and overt sexual behaviour, aspects of which the Authority considers were lewd and distasteful, which was neither appropriate for broadcast in a PG rated programme nor at 6.30pm. The Authority therefore concludes that Standard S2 was breached.
 In relation to the broadcast at 1.20pm, the Authority reaches a different conclusion. It does not consider that 1.20 pm on a weekday is a time when children can reasonably be expected to be watching television, and notes that on free-to-air television this time falls within an AO time band. Although the material was incorrectly classified as PG material, on balance the Authority does not consider that the broadcast at 1.20pm breached Standard S2.
 The Authority notes that the broadcaster’s response to Ms Edwards’ formal complaint referred only to Standard S2. The Authority considered that the complaint also should have been assessed by the broadcaster under Standard S20 (children) as the complainant clearly stated in her original complaint that she was concerned about the programme containing content that was unsuitable for children. Standard S20 reads:
S20 Subscription television broadcasters acknowledge that programmes screened during children’s normally accepted viewing times should be acceptable for them.
 The Authority sought the broadcaster’s comments on whether the programme breached Standard S20. The broadcaster responded that it did not consider Standard S20 was breached.
 For the reasons already given, the Authority considers that the 6.30pm broadcast of the programme complained about was unsuitable for broadcast during a time when children could reasonably be expected to be viewing television. It concludes that Standard S20 was breached.
 In relation to the broadcast at 1.20pm, the Authority again reaches a different conclusion. It does not consider that 1.20pm on a weekday is a time when children can reasonably be expected to be watching television and finds that this broadcast did not breach Standard S20.
For the above reasons the Authority upholds the complaint that the broadcast by Sky Network Television Ltd of The 5th Wheel at 6.30pm on 9 February 2004 breached Standards S2 and S20 of the Standard Code of Broadcasting Practice for Subscription Television. It does not uphold the complaint in relation to the broadcast of the same programme at 1.20pm on 10 February 2004.
 Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Act. It invited submissions from the parties.
 In its submission, Sky noted that in its response to Mrs Edwards’ original complaint, it had agreed to change the rating of the programme and to reschedule it to a later time slot. It advised the Authority that the rescheduling had not been completed in a timely fashion. Sky apologised for this and informed the Authority that it had since taken steps to improve its internal processes in relation to any schedule changes resulting from a customer complaint. Sky submitted that an order should not be imposed against it in these circumstances.
 The complainant did not make a submission about orders.
 Taking into account all the circumstances of the complaint, and the submission received from Sky, the Authority considers an order for costs of $1,500, payable to the Crown, is appropriate. It considers that the action that was taken was insufficient and would still have been, even if implemented as intended.
Pursuant to s.16(4) of the Broadcasting Act 1989, the Authority orders Sky Network Television Ltd to pay costs to the Crown in the amount of $1,500 within one month of the date of this decision.
This order is enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
12 August 2004
The following correspondence was received and considered by the Authority when it determined this complaint:
- Fiona Edwards’ Formal Complaint to Sky Network Television Limited – 13 February 2004
- Sky’s Response to the Formal Complaint – 27 February 2004
- Ms Edwards’ Referral to the Authority – 30 March 2004
- Sky’s Further Letter to the Authority – 1 June 2004
- Sky’s Submission on Orders – 6 July 2004