BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Californication – contained frequent coarse language – allegedly in breach of good taste and decency standard

Findings
Standard 1 (good taste and decency) – language was consistent with viewer expectations of the programme – contextual factors – not upheld

This headnote does not form part of the decision. 

Broadcast

[1]  An episode of Californication was broadcast on TV3 at 9.30pm on Monday 18 April 2011. Californication was a black comedy about a self-obsessed novelist named Hank Moody. Between 9.30pm and 10pm, characters used the following words and phrases:

• “fucking” (16 times)
• “fucked up”
• “fuck” (6 times)
• “bitch”
• “shit” (8 times)
• “asshole” (2 times)
• “shitty” (2 times)
• “balls” (3 times)
• “you smell like you just walked out of a fisting contest”
• “forced anal” (2 times)
• “motherfucker”
• “cock”
• “bullshit”.

[2]  The episode was preceded by the following visual and verbal warning:

This programme is rated Adults Only and is recommended for a mature audience. It contains sexual material, language and nudity that may offend some people.

Complaint

[3]  Family First New Zealand (Family First) made a formal complaint to TVWorks Ltd, the broadcaster, alleging that “the quantity of offensive words in such a short period of programming plus the repetitive use of some of the most offensive words” breached standards of good taste and decency. It referred to the first 20 minutes of the programme, and the use of words such as “fuck”, “shit”, “cunt”, and “motherfucker”.

Standards

[4]  Standard 1 and guidelines 1a and 1b of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Guidelines

1a   Broadcasters will take into account current norms of good taste and decency bearing in mind the context in which any content occurs and the wider context of the broadcast e.g. programme classification, target audience, type of programme and use of warnings etc.

1b   The use of visual and verbal warnings should be considered when content is likely to disturb or offend a significant number of viewers except in the case of news and current affairs, where verbal warnings only will be considered. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.

Broadcaster’s Response to the Complainant

[5]  TVWorks noted that some of the content referred to by Family First, specifically the use of the word “cunt”, was only present in the online version of the episode. It therefore limited its determination to what was broadcast on television. TVWorks pointed out that the complainant had not watched the episode on television, but on the website, after someone had alerted it to the programme’s content. It therefore considered that the complainant had “watched the content knowing that [it was] likely to find the content offensive”.

[6]  With regard to Standard 1, the broadcaster noted that the Authority had said:

The purpose of the good taste and decency standard is not to prohibit challenging material, or material that some people may find offensive. Its purpose is to ensure sufficient care is taken so that challenging material is played only in an appropriate context, and that the challenges are not so offensive that they are unacceptable regardless of context.

[7]  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. It noted that on this occasion, Californication was classified Adults Only and restricted to screening after 9.30pm, because it contained material that was more challenging than what viewers would expect in an 8.30pm programme.

[8]  The broadcaster was of the view that the strong language in the programme “was not gratuitous given the genre, theme of the series and storyline of the episode”. It argued that sex scenes and references to sex were “an integral part” of the show’s theme, as indicated by its title, Californication. TVWorks conceded that the programme was not to everyone’s taste, but considered that the pre-broadcast warning, classification, and later time of broadcast gave viewers the opportunity to choose whether or not to watch.

[9]  Noting that the Authority had recently upheld a complaint about language broadcast in Outrageous Fortune at 8.30pm, TVWorks pointed out that Californication screened an hour later at 9.30pm.

[10]  With regard to audience expectations, the broadcaster noted that this was the first episode of the fourth season of Californication, and argued that over the years the series had been broadcast there had been significant publicity concerning the subject matter and material contained in the programme. Further, the programme’s title and its pre-broadcast warning were “strong indicators” of the type of content the episode would contain, it said.

[11]  TVWorks said that the word “cunty” had been edited out of the programme for broadcast, and considered that the remainder of the language was consistent with expectations of the series. In this respect, it noted that the Authority had previously determined in relation to an episode of Californication that:¹

...while Californication did contain challenging language, it was not excessive or gratuitous given the nature of the programme, the storyline and the type of characters. In a black comedy which was aimed at adults and broadcast at 9.30pm, the Authority finds that the language did not breach standards of good taste and decency.

[12]  TVWorks emphasised that the episode was preceded by a clear warning for “sexual material, language and nudity that may offend some people”.

[13]  For these reasons, the broadcaster concluded that sufficient care had been taken to ensure that the material was acceptable in the context in which it was shown, and it declined to uphold the Standard 1 complaint.

Referral to the Authority

[14]  Dissatisfied with the broadcaster’s response, Family First referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[15]  The complainant considered that it was irrelevant that it had not viewed the episode on television. With regard to the Authority’s previous decision, Family First argued that the Authority, by not upholding the complaints, had “allowed a progressive lowering of standards to the point of hard pornography and extremely offensive language being common fare on our free-to-air channels”. It considered that, regardless of the timeslot, teenagers were likely to be watching, and noted that in the United States, Californication was broadcast only on cable television and not free-to-air. Family First maintained that the programme included the word “cunt”, and considered that if the Authority did not uphold the complaint it would be giving a “green light” to the use of the word on free-to-air television after 9.30pm, which would encourage broadcasters to “push that time back to 8.30pm and even earlier”.

Broadcaster’s Response to the Authority

[16]  TVWorks reiterated its view that Family First was complaining about content that it had viewed on the internet rather than on television, and maintained that the television broadcast did not contain the word “cunt”.

[17]  The broadcaster said that ratings information for the episode subject to complaint indicated that 80 percent of the audience reached its target demographic of 25- to 54-year-olds. It maintained that the programme was not targeted at children or teenagers, as it was rated Adults Only and screened an hour after the AO watershed.

Authority’s Determination

[18]  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.

Preliminary Matter

[19]  Family First argued that the word “cunt” was used in the programme, while TVWorks maintained that this was only present in the website version of the episode. Having viewed the programme that was broadcast on TV3, we are satisfied that at no time was the word “cunt” used. The Authority does not have any jurisdiction over on-demand internet content, and we have therefore limited our determination to what was broadcast on television.

Standard 1 (good taste and decency)

[20]  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:

• the programme was rated AO
• it was broadcast at 9.30pm
• the programme was preceded by a verbal and written warning for sexual material, language and nudity that may offend
• the programme’s adult target audience
• expectations of regular viewers
• the title of the programme, Californication, indicated that it was likely to contain challenging content.

[21]  The Authority has previously considered the use of coarse language in an episode of Californication. In that episode, the characters talked openly about sex and used words such as “fuck”, “shit”, “cock”, “motherfucker”, “slut”, “pussy” and “asshole”. The Authority declined to uphold complaints under Standard 1. With regard to the language, it said:²

In the Authority’s view, while Californication did contain challenging language, it was not excessive or gratuitous given the nature of the programme, the storyline, and the type of characters. In a black comedy which was aimed at adults and broadcast at 9.30pm, the Authority finds that the language did not breach standards of good taste and decency.

[22]  The importance of taking into account the context of the broadcast was also emphasised by the High Court in the case of Television New Zealand Ltd v West, in which the judge defined context as follows:³

Context is used in two broad senses. The first is described as “the context in which any content occurs”. I refer to this as the narrative context. It will be necessary to consider what leads up to and what follows the scene in the particular episode, as well as the broader storyline and the themes of the episode and the series.

The second is described as the “wider context of the broadcast”. I refer to this as the external context. It includes the programme classification, the target audience, the type of programme, and the accompanying warnings.

[23]  In that case, the Court held that the Authority was wrong to uphold a complaint about a sex scene broadcast at 10.10pm, taking into account the premise of the programme and its storyline, along with the time of broadcast and a clear pre-broadcast warning.

[24]  On this occasion, we are satisfied that the language used in the episode was in keeping with the “narrative context” of the series. As noted in the Authority’s previous decision, Californication is a black comedy. Its central premise is its self-loathing lead character, Hank Moody, and his increasingly bizarre and extreme methods of coping with his life’s downward spiral – most typically, sex, drugs, and bad behaviour, which inevitably involves the use of coarse language. In this respect, we consider that the content of this episode was consistent with viewer expectations of the series and its storylines.

[25]  While we accept that some viewers would find the language used offensive, we emphasise that the programme was classified Adults Only and broadcast at a later time of 9.30pm, and that it was preceded by a clear warning for language that may offend.

[26]  For these reasons, and taking into account the contextual factors outlined above and the Authority’s previous determination, we decline to uphold the complaint that the programme 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
13 September 2011

Appendix

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

1    Family First New Zealand’s formal complaint – 22 April 2011

2    TVWorks’ responses to the complaint – 2 and 23 May 2011

3    Family First’s referral to the Authority – 24 May 2011

4    TVWorks’ responses to the Authority – 5 and 8 July 2011

¹Baker and Others and TVWorks, Decision No. 2007-129

²Baker and Others and TVWorks Ltd, Decision No. 2007-129 at paragraph [52]

³CIV-2010-485-002007 PDF3.33 MB at paragraphs [37] to [38] per Asher J