BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
3 News – story about former cricketer Shane Warne reportedly having an affair with Liz Hurley – referred to his past indiscretions and showed images of him with topless women, with their breasts blurred – allegedly in breach of good taste and decency standard

Findings
Standard 1 (good taste and decency) – images were brief, dark and indistinct – no warning required – contextual factors – not upheld

This headnote does not form part of the decision. 

Broadcast

[1]   An item on 3 News, broadcast on TV3 at 6pm on 13 December 2010, reported that former Australian cricketer Shane Warne was rumoured to be having an affair with model and actress Liz Hurley. During the item, a reporter summarised Mr Warne’s past indiscretions, saying:

The cricketer’s off-field exploits are nothing new, after the affairs that led to his very public divorce with wife Simone in 2005. ...The so-called “sexploits” also cost him the vice captaincy of the Australian test side in 2000, the chance to become one-day international skipper two years later and his Channel 9 contract in 2005.

[2]   As the reporter said this, the following four grainy black and white images were shown:

• Mr Warne and two women standing in a room; all three were wearing underwear on their bottom halves, and the women’s breasts were blurred.
• Mr Warne in the same room, still wearing underwear, with his back to the camera; one of the women was climbing onto a bed with her g-string and buttocks visible.
• Mr Warne standing kissing the woman, who was standing in front of him with her back to him; both were wearing underwear on their bottom halves, though the woman’s breasts were blurred.
• The same shot was then zoomed to show the couple from the waist up; the woman’s breasts were blurred.

Complaint

[3]   Justine Evans made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the “inappropriate and indecent photos” in the item breached standards relating to good taste and decency.

Standards

[4]   TVWorks assessed the complaint under Standard 1 of the Free-to-Air Television Code of Broadcasting Practice, which provides:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Broadcaster's Response to the Complainant

[5]   TVWorks contended that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was shown, including the programme’s classification, time of broadcast, target audience, and the use of warnings.

[6]   On this occasion, the story was part of a scheduled news programme with an adult target audience, the broadcaster said. TVWorks asserted that the Authority had accepted that children were unlikely to watch news programmes unsupervised. It also noted that under Appendix 1 to the Code, news programmes were unclassified due to their distinct nature.

[7]   TVWorks argued that the images were included in the story “to illustrate the background of [Shane Warne’s] very public love affairs”. It said that the photos referenced their original publication in a UK newspaper, and that care was taken to pixellate the women’s breasts so that no nudity was shown. The subjects were all wearing underwear, it said, and were only shown standing in a room; they were not engaging in sexual activity.

[8]   The broadcaster maintained that sufficient care was taken to remove potentially offensive material while still providing information on the background to the public’s interest in Mr Warne’s personal life. It considered that, as the people in the photos were wearing underwear and were not engaging in sexual activity, supervised child viewers would not be disturbed or alarmed by the material.

[9]   TVWorks concluded that, while it regretted that Ms Evans found the content offensive, it was unlikely that a significant number of 3 News viewers would have been offended by the story. Accordingly, it declined to uphold the complaint.

Referral to the Authority

[10]   Dissatisfied with the broadcaster’s response, Ms Evans referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. She reiterated her view that the images were indecent and inappropriate for inclusion in a news item. She said:

Of course we expect to have an array of emotion while watching the news but we expect that it be because of the circumstances of the event not due to the arrangement and presentation of that event. Although we believe that the story may have been newsworthy to some people, we believe it could have been delivered with better judgement, discernment and discretion.

[11]   Ms Evans said that even as adults she and her husband were disturbed and alarmed, and found the inclusion of “explicit pictures” in a news item “completely unacceptable”. She considered that, although the pictures were pixellated, they “left nothing to the imagination”.      

Authority's Determination

[12]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[13]   When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• 3 News was an unclassified news programme
• it was broadcast at 6pm during children’s normally accepted viewing times
• the programme’s adult target audience
• the item was not preceded by a warning.

[14]   In our view, the images in the item were brief, dark, and grainy, as well as the women’s breasts being blurred, so that they were relatively indistinct. The images were still shots and did not actually portray any sexual activity. For this reason, while the inclusion of the images may not have been strictly necessary for the story, we do not consider that they warranted a warning prior to the item.

[15]   Taking into account the above contextual factors, particularly that the images were included in an unclassified news programme targeted at adults, we decline to uphold the complaint that the item breached Standard 1.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
29 March 2011

Appendix

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

1                 Justine Evans’ formal complaint – 13 December 2010

2                 TVWorks’ response to the complaint – 14 December 2010

3                 Ms Evans’ referral to the Authority – 14 December 2010

4                 TVWorks’ response to the Authority – 12 February 2011