Francis and Television New Zealand Ltd - 2008-099
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Ken Francis
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Burying Brian – use of the word “fuck” – allegedly in breach of good taste and decency
Standard 1 (good taste and decency) – language would not have offended a significant number of viewers – contextual factors – not upheld
This headnote does not form part of the decision.
 The first episode of a New Zealand-produced drama called Burying Brian was broadcast on TV One at 8.30pm on Wednesday 2 July 2008. The programme followed Jodie and the efforts she and her friends made to cover up the accidental death of her husband.
 During the episode, the main character, Jodie, drunkenly announced to her friends that she wished her husband, Brian, was dead. After returning home from being out with her friends, Jodie and Brian had an argument and Brian ended up dead on the kitchen floor after a bizarre accident. Jodie called her friends and they decided to dispose of Brian’s body after discussing how bad the situation looked. The following day, Jodie was shown struggling to comprehend the events of the previous night and another one of her friends, who did not know that Brian was dead, arrived at her home. Jodie and her two friends who helped her dispose of Brian’s body then told their other friend who had just arrived what happened the previous night. The four women were then shown standing on Jodie’s deck with two of them smoking cigarettes.
 As the four women stood on the deck, one of them, who was smoking, said “fuck, I’d given up” in reference to cigarettes. Jodie replied, “Me too” as she smoked her cigarette, then the other woman said “fuck” again as she took another puff.
 Ken Francis made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the coarse language contained in the programme breached broadcasting standards.
 The complainant stated “I complain on the basis that the programme carried no warning, yet used the f-word twice, late in the programme – strongly, blatantly and offensively to me and my family”. He argued that the broadcaster should have warned viewers that the episode contained coarse language so that he could have made an informed decision on whether to watch it or not.
 TVNZ assessed the complaint under Standard 1 of the Free-to-Air Television Code of Broadcasting Practice. It provides:
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.
Broadcaster's Response to the Complainant
 TVNZ stated that to constitute a breach of Standard 1, the broadcast material must be unacceptable to a significant number of viewers in the context in which it was shown. It pointed out that Burying Brian was broadcast at 8.30pm and was classified AO (Adults Only), which meant that it was aimed at mature audiences.
 The broadcaster noted that the two instances of coarse language referred to by the complainant occurred at 9.27pm, almost an hour after the Adults Only watershed.
 With respect to the use of warnings, TVNZ argued “to apply a warning for every programme that includes minimal use of such language would devalue the warnings as informal tools”. Further, it said TVNZ’s policy for such instances of language is to alert viewers when strong language is pervasive in a programme or might be unexpected in a particular genre of programming. It considered that Burying Brian did not require a warning, as the coarse language was minimal and was not used with malice.
 The broadcaster concluded that the language contained in the programme would not have offended a significant number of viewers and declined to uphold the complaint.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr Francis referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. The complainant reiterated the arguments contained in his original complaint, maintaining the programme should have been preceded by a warning.
 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.
 When the Authority considers a complaint that alleges a breach of good taste and decency, it is required to take into account the context of the broadcast. On this occasion, the relevant contextual factors include:
- the programme was broadcast at 8.30pm
- Burying Brian was classified AO
- the adult target audience of the programme
- the episode complained about was the first of the series.
 The Authority notes that the language which offended Mr Francis occurred nearly 57 minutes into the programme, which ended at 9.30pm. It considers that the word “fuck” was not used in an abusive manner, but as an exclamation that highlighted the female characters’ shock at the death of Brian.
 The Authority considers that, while on some occasions it may be appropriate for broadcasters to precede an AO-classified programme that contains coarse language with a warning, the episode of Burying Brian complained about did not require a warning. The coarse language in the programme was infrequent and intended to be comical. In the Authority’s view, the language was not unexpected given the nature of the programme and the storyline, which included violence, drug use, and sexual references, including to oral sex and multiple orgasms.
 The Authority finds that the coarse language, which occurred late in a programme that had already dealt with numerous adult themes, would not have offended a significant number of viewers. Taking these factors into account, the Authority declines to uphold the complaint that the programme breached Standard 1 (good taste and decency).
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
25 November 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Ken Francis’ formal complaint – 7 July 2008
2. TVNZ’s response to the formal complaint – 3 September 2008
3. Mr Francis’ referral to the Authority – 7 September 2008
4. TVNZ’s response to the Authority – 26 September 2008