BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Warning: This decision contains language that some readers may find offensive

Summary

[This summary does not form part of the decision.]

The Authority has not upheld a complaint that use of the word ‘fuck’ in an episode of My Life is Murder, broadcast after 8.35pm without an ‘L’ advisory for offensive language, breached the good taste and decency standard. In the context, including the programme’s nature, classification and intended audience, the Authority found the episode was unlikely to have caused widespread undue offence or distress.

Not Upheld: Good Taste and Decency

The broadcast

[1]  An episode of the fictional drama, My Life is Murder was broadcast after 8.35pm on 1 May 2020 on TVNZ 1, with the rating ‘M’ (Mature Audiences: Suitable for mature audiences 16 years and over). It portrayed an investigation carried out by retired police officer, Alexa Crowe, into the murder of a woman by a male escort, Dylan Giroux. Near the end of the programme, upon discovering Ms Crowe in his apartment, Mr Giroux exclaimed, ‘What the fuck?’

[2]  In considering this complaint, the members of the Authority have viewed a recording of the broadcast complained about, and have read the correspondence listed in the Appendix.

The complaint

[3]  Ken Francis complained that the broadcast breached the good taste and decency standard of the Free-to-Air Television Code of Broadcasting Practice by failing to include the ‘L’ (language may offend) audience advisory symbol, and then broadcasting the ‘f-word’.¹ He noted in his original complaint that the same day, he had ‘read an email from BSA (pointing me to safeviewing.co.nz). One of the points there was that language “likely to offend some” would be signaled with an ‘L’ warning. So when there was no L warning on this programme it seemed safe to watch… But halfway through we got F-bombed by the male actor’.

[4]  In his referral to the Authority, Mr Francis sought to also submit his complaint under the programme information standard. Under section 8(1B) of the Broadcasting Act 1989, we are only able to consider his complaint under the standard(s) raised in the original complaint to the broadcaster. The High Court has clarified that in certain circumstances:²

…it is permissible [for the Authority] to fill gaps… or cross boundaries between Code standards… but only if these things can be done within the wording, reasonably interpreted, of the original complaint, and if a proper consideration of the complaint makes that approach reasonably necessary…

[5]  TVNZ submitted that it was not reasonably necessary to imply the programme information standard into Mr Francis’ original complaint in order to properly consider it, as it could be adequately considered under the good taste and decency standard (particularly as guidelines 1b and 1c to that standard expressly address the issue of audience advisories).

[6]  We agreed with the broadcaster. Given the scope of the good taste and decency standard, which includes specific reference to broadcasting audience advisories, it is not reasonably necessary to imply a complaint under the programme information standard to properly consider Mr Francis’ concerns. Accordingly our determination has been made under the good taste and decency standard only.

The broadcaster’s response

[7]  TVNZ did not find any breach of the good taste and decency standard in the context, for the following reasons:

• My Life is Murder was rated M and screened after 8.36pm, which would have been AO time under the old classification regime.
• The episode dealt with mature themes, including the murder of a woman by her male escort. It was clear from the tone at the outset that the programme would contain challenging material and sophisticated themes.
• It was clear, from the classification, time of broadcast and subject matter, that the programme was intended for mature viewers.
• The one instance of the ‘f-word’ was near the end of the programme.
• The Authority has previously ruled that the word ‘fuck’ is not strong adult content and is acceptable in adult programming (previously classified as AO – Adults Only) after 8.30pm.

[8]  TVNZ also advised Mr Francis that, while it did not find any breach of broadcasting standards due to omission of the ‘L’ advisory symbol, it had amended the classification of this programme to ML for future broadcasts, in light of Mr Francis’ complaint.

The standard

[9]  The good taste and decency standard (Standard 1) states that current norms of good taste and decency should be maintained, consistent with the context of the programme and the wider context of the broadcast. The purpose of the standard is to protect audience members from viewing or listening to broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards. Attitudes towards taste and decency differ widely, and continue to evolve. The broad limit is that a broadcast must not significantly violate community norms of taste and decency.³

Our findings

[10]  In New Zealand, we attach significant value to the right to freedom of expression, as enshrined in the New Zealand Bill of Rights Act 1990. When we consider a complaint, we weigh the value of the programme, and the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might have been caused by the broadcast. This could be harm to an individual, harm to society or harm to the audience generally.

[11]  In this case, for the reasons outlined below, we found that the broadcast did not cause actual or potential harm that justifies regulatory intervention or limiting freedom of expression.

[12]  Context is crucial to assessing whether a programme has breached the good taste and decency standard, including the context in which the material complained about occurred, and the wider context of the broadcast.⁴ In this case, the key contextual factors relevant to our determination were:

• The programme was broadcast after 8.30pm and classified ‘M’.
• The programme was intended for a mature audience.
• The mature themes of the programme (which included murder, sexual innuendo and use of other language more appropriate for adults, eg ‘holy shit’) were established early on and expectations set accordingly.
• The one instance of the word ‘fuck’ occurred near the end of the programme.
• The instance of the word was part of the dramatic narrative.

[13]  The Authority’s 2018 research, Language That May Offend in Broadcasting, also highlights the importance of context in assessing the acceptability of language, with 39% of those surveyed finding this particular word unacceptable in ‘any context’.⁵ The word ranked 13th on the list of unacceptable words in a TV Drama after 8.30pm, suggesting it is gradually increasing in ‘acceptability’ (after ranking ninth in the previous 2013 survey).⁶

[14]  Mr Francis’ primary concern is that this broadcast required an ‘L’ (language may offend) advisory. The Codebook states that if content is likely to offend or disturb a significant section of the audience (not merely some viewers as suggested in the complaint), an appropriate audience advisory is required.⁷ However, consistent with the Authority’s previous decisions considering the use of this word after 8.30pm,⁸ we find that the single use of ‘fuck’ after 8.30pm in a fictional television drama of this nature was unlikely to offend or disturb a significant section of the audience. By the time the word was used, mature themes had been well established in the programme, such that the use of this word was consistent with the context and could have been reasonably expected by the audience. The ‘M’ classification of the broadcast also indicated to viewers that the programme might contain some offensive language.⁹

[15]  For these reasons, we do not consider the broadcast was likely to be outside audience expectations or to have caused widespread undue offence or distress. We therefore do not uphold the complaint.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

28 September 2020

Appendix

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

1  Ken Francis’ original complaint – 4 May 2020

2  TVNZ’s response to the complaint – 2 June 2020

3  Mr Francis’ referral to the Authority – 12 June 2020          

4  TVNZ’s response to the referral – 10 July 2020

5  TVNZ’s comments on jurisdiction and the scope of the complaint – 3 August 2020

¹ The Free-to-Air Television Code of Broadcasting Practice was refreshed with effect from 1 May 2020, including revising the free-to-air timebands, classifications and audience advisory labels.
² See Attorney General of Samoa v TVWorks Limited, CIV-2011-485-1110 at [62]
³ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
⁴ Guideline 1a
⁵ Page 7
⁶Language That May Offend in Broadcasting, (Broadcasting Standards Authority, June 2018), page 22
⁷ Guideline 1c. See also guideline 2g to the programme information standard (Standard 2) which refers to a ‘significant number of viewers’.
⁸ See Steans and TVWorks Ltd, Decision No. 2011-105, and Samuel and Television New Zealand, Decision No. 2014-035
⁹ Definitions, Broadcasting Standards in New Zealand Codebook, page 9