Exton and Television New Zealand Ltd - 2003-014
- P Cartwright (Chair)
- J H McGregor
- Tapu Misa
- R Bryant
- Dr L Exton
ProgrammeAmerican Beauty promo
BroadcasterTelevision New Zealand Ltd
Promo for film American Beauty – wrongly classified – explicit sexual content at 7.30pm – offensive behaviour
Standard 1 – context - extreme brevity – no uphold
Standard 7 – not explicit – classification appropriate – no uphold
This headnote does not form part of the decision.
 A promo for the film American Beauty, to be shown at 8.30pm that evening, was screened on TV2 at about 7.30pm on Sunday 10 November 2002. Among the scenes in the promo was one of a couple engaged in sexual intercourse.
 Dr Exton complained to Television New Zealand Ltd, the broadcaster, that the depiction of explicit sexual behaviour, at a time when children were the target audience, breached the standards.
 In response, TVNZ said the scene was brief and non-explicit and not inappropriate during the PGR time-band. It declined to uphold the complaint.
 Dissatisfied with TVNZ’s decision Dr Exton referred his 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 promo complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 A promo for the film American Beauty, to be shown on TV2 at 8.30pm that evening, was broadcast on TV2 at about 7.30pm during the PGR rated programme Fear Factor. Among the scenes in the promo was one depicting a couple engaged in sex.
 Dr Exton complained about the explicit sexual content contained in the film and in the promo. Although TVNZ upheld neither complaint, Dr Exton referred only the complaint about the promo to the Authority. He said that, while he did not agree with TVNZ’s explanation regarding the film, he accepted it. However, he considered that the promo, in view of its contents, had been screened inappropriately at 7.30pm.
 TVNZ assessed the complaint under Standards 1 and 7 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 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.
7b Broadcasters should ensure that all promos (including promos for news and current affairs) comply in content with the classification band in which they are shown. For example, promos for AO programmes shown outside Adults Only time must conform in content with the classification of the time-band in which they are broadcast.
The Broadcaster’s Response to the Complainant
 In regard to the promo, TVNZ said that it contained one very brief scene of sexual activity. It added:
It was the [complaints] committee’s view that the scene was so brief and non-explicit, that adult viewers would gain only an impression that the film contained some sexual material. It did not seem credible that a sexually innocent child would have any idea what the fleeting scene represented.
 TVNZ also noted that the promo was broadcast during the PGR timeband and, referring again to the extreme brevity of the scene, considered that the promo did not breach the standards.
The Referral to the Broadcasting Standards Authority
 Dr Exton wrote:
I do not accept the explanation of the showing of a scene displaying a couple engaging in sex, during a film trailer advertising this movie, which was screened soon after 7.30pm. I do not believe that such a scene, however briefly portrayed, should be shown at a time when children are likely to be watching.
The Broadcaster’s Response to the Authority
 TVNZ had nothing to add, other than to point out that the scene complained about was less than one second in duration, and had been taken from a scene which appeared some 53 minutes after the start of the film.
The Authority’s Determination
 When it determines a complaint about 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 not determinative of whether the programme breached the Standard. Accordingly, the Authority has considered the context in which the scene of sexual intercourse complained about was broadcast.
 The scene complained about was included in a promo for the film American Beauty and the most relevant contextual matter on this occasion was the brevity of the visuals complained about. In the Authority’s opinion, the extract from the film used in the promo was so short that the next visuals in the promo were on the screen before it was possible to realise fully that the promo had suggested a scene of sexual intercourse.
 In view of the extreme brevity of the scene, the Authority concludes first, that it did not breach the requirement for good taste and decency, and second, that it was appropriately broadcast in the PGR time slot. It declines to uphold the complaint.
 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 which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the above reasons, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
27 February 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
- Dr L Exton’s Formal Complaint to Television New Zealand Ltd – 11 November 2002
- TVNZ’s Response to the Formal Complaint – 6 December 2002
- Dr Exton’s Referral to the Broadcasting Standards Authority – 10 December 2002
- TVNZ’s Response to the Authority – 17 December 2002
- Dr Exton’s Final Comment – 21 January 2003