BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Embarrassing Bodies – episode focusing on vaginas broadcast at 8.30pm – close-up shots of women’s vaginas and surgical operations – allegedly in breach of good taste and decency, responsible programming and children’s interests standards

Findings
Standard 1 (good taste and decency) – programme had educational value – clear pre-broadcast warning for nudity and medical scenes – nudity was non-sexual and matter-of-fact – contextual factors – not upheld

Standard 8 (responsible programming) – programme correctly classified AO and preceded by adequate warning – not upheld

Standard 9 (children’s interests) – clear warning and signposting of likely content gave parents an opportunity to exercise discretion – broadcaster adequately considered children’s interests – not upheld

This headnote does not form part of the decision.

Introduction

[1]  An episode of Embarrassing Bodies, a reality television series in which three doctors encouraged people to come forward for treatment of embarrassing medical conditions, was broadcast on TV2 at 8.30pm on Thursday 1 December 2011. This episode focused on vaginas, and contained a number of close-up shots of women’s vaginas and of surgical operations being performed on them. The programme was preceded by the following visual and verbal warning:

This programme contains medical and surgical scenes that may disturb, and nudity that may offend, some people.

[2]  Will Fourie made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the “nude, close up pictures of people’s vaginas” and the broadcast of these images close to 8.30pm breached standards relating to good taste and decency, responsible programming and children’s interests. He considered that “the images are too much for that timeslot, irrespective of whether you choose to label it as Adults Only”, although he accepted the programme may be aimed at advocating disease prevention.

[3]  The issue is whether the programme, and specifically the images complained about, breached Standards 1 (good taste and decency), 8 (responsible programming) and 9 (children’s interests) of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

[5]  We recognise the right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990, and acknowledge the importance of the values underlying that right. The right to free expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form. Any restriction on the right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5).

[6]  Embarrassing Bodies is one of a series of factual programmes from the United Kingdom, where doctors offer advice, and diagnose and treat a range of medical conditions that are unusual or embarrassing to discuss. This particular episode focused on health problems concerning the vulva, and alluded to statistics suggesting that one woman in the UK dies every day from cancer associated with the vulva. The general message of the programme was that people should not ignore or be embarrassed about health issues that worry them, but rather should come forward and seek advice, as usually there is a solution and a positive outcome can be achieved.  

[7]  We consider that this type of speech was valuable in terms of educating and informing viewers about particular health issues. There was a degree of public interest in the subject matter, which the courts have suggested is an indicator that the speech is socially important.¹

[8]  We therefore think we should be cautious about interfering with its broadcast and its reception by viewers.

Did the programme threaten current norms of good taste and decency?

[9]  Standard 1 states that broadcasters should observe standards of good taste and decency. The standard is primarily concerned with the broadcast of sexual material, nudity, coarse language or violence.² The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.³

[10]  When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast, which here includes:

• Embarrassing Bodies was classified Adults Only
• it was broadcast at 8.30pm on a Thursday night
• it was preceded by a warning for “medical and surgical scenes that may disturb, and nudity that may offend, some people”
• the programme’s adult target audience
• the nature of the programme and its intended message
• audience expectations.

[11]  TVNZ argued, in relation to freedom of expression, that the Authority must show real restraint in upholding complaints under Standard 1. It considered that numerous contextual factors justified the broadcast, including the programme’s AO rating, time or broadcast, and clear warning. It considered that footage of genitalia, as well as footage of nudity and operations, was a common and expected feature of the programme and regular viewers would not have been surprised by it. It also noted that in this episode some of the issues discussed were significant health issues which could affect New Zealand women. The sole purpose of showing the footage was to help people understand the medical issues being discussed; it was matter-of-fact and non-sexual, and not pornographic or designed to titillate, it said. TVNZ maintained that the programme did not trade on being overly sensationalist, but provided a community service of disseminating medical advice that could prevent serious illness. TVNZ concluded that medical and preventative information of this nature would not be offensive to the majority of the target audience.

[12]  We acknowledge that some viewers would have found parts of the footage unpleasant to watch. However, we consider that the footage of nudity and medical scenes was matter-of-fact and clinical in nature, rather than being sexual or designed to titillate. The footage was not gratuitous in the context of a factual medical series, but rather played an important role in educating viewers about particular health concerns, as well as the prescribed treatments.

[13]  The programme was broadcast during the Adults Only time-band, and was preceded by a clear warning for nudity, and medical and surgical scenes, which gave viewers the opportunity to make a different viewing choice. We also note that the series had been broadcast in the same timeslot for many weeks, by which time audience expectations of the programme’s content had been established.

[14]  For these reasons, we find insufficient justification to interfere and restrict the broadcaster’s right to freedom of expression.

[15]  We therefore decline to uphold the complaint under Standard 1.

Was the programme correctly classified and preceded by an adequate warning?

[16]  Standard 8 (responsible programming) requires broadcasters to ensure that programmes are correctly classified and adhere to the time-bands set out in the Appendix to the Code.

[17]  Mr Fourie argued that the programme breached “responsible programming as most people don’t want to see these nude images while simply changing channels during an ad break”. TVNZ reiterated its view that the episode was correctly rated AO, and was permitted to be broadcast at 8.30pm in AO time. The programme was not presented in a way that would cause panic, alarm or undue distress, it said, and was preceded by a clear warning in accordance with guideline 8a, which states that, “Warnings should be considered when programme content is likely to offend or disturb a significant number of the intended audience.”

[18]  Embarrassing Bodies was classified Adults Only and broadcast at 8.30pm during the AO time-band. To uphold the complaint under this standard, we would need to find that the programme warranted an AO 9.30pm classification. The AO and AO 9.30 classificatons are defined as follows in Appendix 1 to the Code:

AO       Adults Only

Programmes containing adult themes and directed primarily at mature audiences.

AO – 9.30pm   Adults Only 9.30pm – 5am

Programmes containing stronger material or special elements which fall outside the AO classification. These programmes may contain a greater degree of sexual activity, potentially offensive language, realistic violence, sexual violence, or horrific encounters.

[19]  For the reasons outlined in paragraphs [12] to [13], we do not consider that the programme’s content amounted to “stronger material” which warranted a higher classification or restriction to a later time of broadcast. Broadcasters are permitted to screen AO material after 8.30pm, and we consider that the nature of the footage was consistent with the programme’s AO classification. It was also preceded by a specific warning which gave viewers an indication of the programme’s likely content.

[20]  Accordingly, we find that the programme was correctly classified and broadcast in an appropriate timeslot, and we decline to uphold the complaint under Standard 8.

Did the broadcaster adequately consider children’s interests?

[21]  Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm.

[22]  Mr Fourie argued that the programme breached Standard 9 as “you cannot expect children (under 18) to not be watching TV or channel surfing at 8.30pm”. He considered this was particularly so during daylight saving, and in his referral he acknowledged that showing the programme during winter when it was dark at 8.30pm might be acceptable. We note that Appendix 1 to the Code defines a child as being under the age of 14 years, in accordance with the Children, Young Persons and Their Families Act 1989.

[23]  TVNZ pointed out that broadcasters were permitted to show AO material at 8.30pm, which was not considered children’s normal viewing time. It reiterated its arguments under Standard 1, and concluded that children’s interests had adequately been considered.

[24]  We agree with the broadcaster. Parents must take some responsibility for what their children view after 8.30pm. The 8.30pm watershed marks the end of children’s viewing times and the beginning of the AO time-band, regardless of the seasons and whether or not it is daylight saving. As noted under Standard 1, the series had been broadcast in the same timeslot for many weeks and audience expectations of the programme’s content had been established. Parents were given an adequate opportunity to exercise discretion with regard to their children’s viewing through the explicit pre-broadcast warning, and the way in which the programme was constructed, which meant that viewers were fully aware of the subject matter before any nudity or explicit images were broadcast. In other words, the programme’s content was clearly signposted.

[25]  We are therefore satisfied that the broadcaster adequately considered children’s interests, and that there is insufficient reason for us to interfere with freedom of expression. We decline to uphold the Standard 9 complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
8 June 2012

Appendix

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

1                  Will Fourie’s formal complaint – 1 December 2011

2                 TVNZ’s response to the complaint – 19 December 2011

3                 Mr Fourie’s referral to the Authority – 4 January 2012

4                 TVNZ’s response to the Authority – 14 March 2012

¹See, for example, Tipping J in Hosking v Runting PDF317.33 KB, [2003] 3 NZLR 385 (CA).

²Turner and TVNZ, Decision No. 2008-112

³Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November, 2006)