Fox and Television New Zealand Ltd - 2003-021
- P Cartwright (Chair)
- J H McGregor
- Tapu Misa
- R Bryant
- Graham Fox
ProgrammeAn Audience with the King
BroadcasterTelevision New Zealand Ltd
An Audience with the King – offensive language – broadcaster failed to consider children’s viewing interests
Standard 1 – majority – contextual matters – no uphold
Standard 9 – broadcaster was mindful of children – no uphold
This headnote does not form part of the decision.
 An Audience with the King recorded the performance of stand-up comedian Mike King before a live audience. The programme was broadcast on TV2 at 9.30pm on Friday 11 October 2002.
 Graham Fox complained to Television New Zealand Ltd, the broadcaster, that the programme was offensive, and that it was irresponsible to have broadcast such material at a time when children were likely to be watching television.
 In response, TVNZ said that the programme in context did not breach current norms of good taste and decency, and that it had considered the viewing interests of children.
 Dissatisfied with TVNZ’s decision, Mr Fox referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, a majority of the Authority declines to uphold the complaint.
 The members of the Authority have viewed a tape and read a transcript of the programme complained about, and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 An Audience with the King was broadcast on TV2 at 9.30pm on Friday 11 October 2002. The recorded programme featured stand-up comedian Mike King, performing before a live audience at the St James Theatre in Auckland.
 Mr Fox complained that the programme breached standards of good taste and decency, and was concerned about its impact on child viewers. He considered that given its time of broadcast on a Friday night, when children tend to stay up later, it may have been inappropriately viewed by children. He wrote:
Considering the adult content, offensive language, racist and gutter humour of this programme I think that your company [TVNZ] was very irresponsible to screen this programme mid-evening on a weekend night when there was a much higher probability that minors were watching.
 In view of the matters raised in the complaint, TVNZ assessed it under Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice. The Standards and the 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 9 Children’s Interests
During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.
9a Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material which would disturb or alarm them.
9c Broadcasters should have regard to the fact that children tend to stay up later than usual on Friday and Saturday nights and during school and public holidays and, accordingly, special attention should be given to providing appropriate warnings during these periods.
The Broadcaster’s Response to the Complainant
 TVNZ declined to uphold the complaint. In relation to the Standard 9 aspect of Mr Fox’s complaint, TVNZ noted that the programme was broadcast one hour after the adults only (AO) watershed. In addition, the programme was preceded by a warning and classified AO, which demonstrated that TVNZ had considered the interests of child viewers, TVNZ said.
 TVNZ argued that it had a responsibility to cater for all its viewers, and that some material broadcast may not be suitable for children. However, it advised that viewers are aware of the 8.30pm watershed, and that TVNZ provided parents and guardians with enough information to enable them to exercise their discretion about what was suitable viewing material for children.
 Turning to Standard 1, TVNZ accepted that the item contained "offensive language and that many of the jokes could be considered risque". However, it contended that humour was a subjective matter, and what some people may enjoy, others will not. TVNZ submitted that the following contextual factors were relevant:
Mike King’s use of swear words as part of his performances is widely recognised;
the broadcast did not start until 9.30pm – an hour after the adults only watershed;
the programme was classified AO; and
the programme was preceded by a warning specifically referring to language.
 TVNZ did not agree with Mr Fox that the humour was racist. It argued that, given that Mr King is a Maori, his jokes about Maori stereotypes were part of the art of comedy, and only "something that a Maori entertainer can do without causing offence in a racist sense".
 TVNZ concluded that taking into account the contextual matters stated above, the programme did not breach current norms of good taste and decency.
Complainant’s Referral to the Broadcasting Standards Authority
 Dissatisfied with TVNZ’s response, Mr Fox referred his complaint to the Authority.
The Complainant’s Final Comment
 Mr Fox made two points. First, he maintained that the classification of the programme was relevant to the time of broadcast on free-to-air television. Mr Fox advised that he had applied to the Office of Film & Literature Classification (OFLC) to classify the programme complained about. The OFLC declined the application. He advised that the OFLC had previously classified the video version of the broadcast as R16, and that the OFLC had advised him that if the programme as broadcast was "substantially the same body of work", it would likely receive the same classification rating.
 Mr Fox submitted that the programme was the "same body of work" and therefore would be classified as R16. In Mr Fox’s opinion the pre-broadcast warning was not sufficient in view of the content and was unsuitable for viewing by children under 16 years.
 Second, Mr Fox advised that he had obtained material relating to the viewing habits of children during the weekend. Mr Fox contended that, based upon his research, there was a "potential audience pool of at least 29,000 children aged 10 -14 years", at the time of broadcast. Therefore, he maintained, TVNZ had failed to consider the viewing interests of children.
 Mr Fox also commented upon research relating to the monitoring of children’s viewing habits, and in light of the research, stated that broadcasters had a responsibility to "ensure that ‘child safe’ programmes are broadcast during times when significant numbers of children are likely to be watching".
The Authority’s Determination
 First, the Authority will address Mr Fox’s application to the OFLC to obtain a classification for the programme complained about. The Authority does not consider that an OFLC classification is relevant to its determination of this complaint. Despite Mr Fox’s contention that the censorship classification system is the "only professional system used to rate media", the Authority notes that, under the Broadcasting Act 1989, an OFLC classification is not relevant to the application of broadcasting standards. The Authority’s statutory function with respect to the determination of complaints is limited to a consideration of whether the broadcast complained about breached broadcasting standards. The standards are contained in the Broadcasting Act and in the codes of broadcasting practice developed by broadcasters and approved by the Authority under the Act. The classification system pertaining to the OFLC is a different jurisdiction, and it is not within the Authority’s jurisdiction to determine broadcasting complaints by reference to the OFLC censorship rating regime.
 When the Authority determines a complaint that a broadcast contravenes Standard 1 of the Television Code, it is required to determine whether the material complained about breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but does not determine whether the programme breached the standard. Accordingly, the Authority has considered the context in which the material complained about was broadcast.
 The Authority accepts that the relevant contextual matters on this occasion included the starting time of the broadcast (at 9.30pm), the nature of the programme (adult comedy), the pre-broadcast warning, and the programme’s AO classification.
 The majority of the Authority notes that Mike King employs racist, sexist and homophobic stereotypes and anecdotes about crime, drug use and domestic violence interspersed with offensive language as his style of humour. It has a clear appeal to some sections of the community and disgusts others. The majority of the Authority accepts TVNZ’s contentions that Mike King is a well-known comedian whose swearing as part of his performance is widely recognised and long established. The Authority is aware of the international debate about the use of racist stereotypes in humour and the division of opinion between those who believe they perpetrate and reinforce racist thinking and those who believe such deliberate and shocking humour expose societal problems in New Zealand in a legitimate manner.
 The majority of the Authority believes that while the programme would be very offensive to some viewers, to find a breach of Standard 1 on this occasion would be to impose too great a limitation on the freedom of expression. In view of the contextual matters referred to above, a majority of the Authority concludes that Standard 1 was not contravened.
 A minority of the Authority (Mr Rodney Bryant) disagrees. In the minority’s view, the programme went beyond the outer limit of what was acceptable on free-to-air television at 9.30pm, because of the cumulative effect of: the repetitive use of bad language, the jokes relating to violence, the use of offensive stereotypes, the constant sexual references, and the vulgar colloquial terms to describe sexual activities and genitals. In the minority’s opinion, the offensive nature of the material, combined with the time of broadcast, breached current norms of good taste and decency.
 Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times. The Authority observes that the broadcast of this programme commenced at 9.30pm on a Friday night. While the Authority considers that 9.30pm is not usually considered to be "children’s normally accepted viewing time", it also notes that children are more likely to stay up later on a Friday night. Nevertheless, given the programme’s AO classification and the pre-broadcast warning, the Authority is unanimous in not finding Standard 9 to have been breached.
 A majority of 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 and applies them in a manner 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, a majority of the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
20 March 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
- Graham Fox’s Complaint to Television New Zealand Ltd – 16 October 2002
- TVNZ’s Response to the Formal Complaint – 7 November 2002
- Mr Fox’s Referral to the Broadcasting Standards Authority – 2 December 2002
- TVNZ’s Response to the Authority – 10 December 2002
- Mr Fox’s Request for a time extension to make further submissions – 23 January 2003
- The Classification Office’s Decision – 5 February 2003
- Mr Fox’s Final Comment (plus attachments) – 11 February 2003