BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Promo for 3 News – showed a man head-butting another man – allegedly in breach of good taste and decency, law and order, children’s interests, and violence standards

Findings
Standard 1 (good taste and decency) – footage was fleeting and inexplicit and no visible injury was shown – broadcast during Home and Away and five minutes before the news – formed part of a newsworthy story – contextual factors – not upheld

Standard 10 (violence) – contextual factors – broadcaster exercised sufficient care and discretion when dealing with the issue of violence – not upheld

Standard 9 (children’s interests) – contextual factors – broadcaster adequately considered children’s interests – not upheld

Standard 2 (law and order) – footage in the promo did not encourage viewers to break the law or otherwise promote, condone or glamorise criminal activity – not upheld

This headnote does not form part of the decision. 

Introduction

[1]  A promo for 3 News was broadcast on TV3 at 5.55pm on 2 November 2011. The promo showed a two-second shot of a man head-butting another man during the ‘Occupy Dunedin’ protest movement.

[2]  Matthew Frost made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the “violent” footage was “clear, close-up and graphic” and should not have been broadcast during children’s normally accepted viewing times, which in his view, was likely to encourage imitation.

[3]  The issue is whether the promo breached Standards 1 (good taste and decency), 2 (law and order), 9 (children’s interests) and 10 (violence) 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.

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

[5]  Standard 1 states that broadcasters should observe standards of good taste and decency. The primary objective of this standard is to protect against the broadcast of sexual material, nudity, coarse language or violence.¹ 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.² In this respect, the standard is intended to ensure that programmes reflect community norms of decorum and civility.

[6]  When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. The relevant contextual factors include:

• the promo was broadcast at 5.55pm during children’s viewing times
• the promo was broadcast during Home and Away, which was rated G
• Home and Away’s target audience
• the promo was broadcast five minutes before 3 News
• the promo was for 3 News, which is unclassified
• the footage related to a local news event
• the violence was real, not fictional
• the footage was two seconds in length
• the victim did not suffer any visible injuries.

[7]  The footage subject to complaint was extremely brief. We disagree with the complainant that it was “clear, close-up and graphic” and we emphasise that no blood or visible injury was shown.

[8]  Significantly, the content related to a local news event – the ‘Occupy’ movement throughout New Zealand – which had attracted a high level of public interest. The courts have suggested that public interest in an item is an indicator that the content is socially important.³ We therefore agree with TVWorks that the footage was not gratuitous; its intention was to highlight the escalating violence of the ‘Occupy Dunedin’ protest movement, and it therefore had high value.

[9]  We acknowledge that the violence shown was real rather than fictional and that it was broadcast during children’s viewing times. However, taking into account the importance of the speech and the context surrounding the footage, in particular that it was inexplicit and brief and related to an important development in a local news story, it is our view that the potential harm in allowing the speech on this occasion did not outweigh the broadcaster’s right to freedom of expression.

[10]  Further, TVWorks accepted that the footage was close to being unacceptable, and said that it had advised the promo’s producer that if it had shown an injury to the victim or had a stronger impact, the footage would have been inappropriate.

[11]  For these reasons, we find that the promo did not threaten current norms of good taste and decency in breach of Standard 1.

Did the broadcaster exercise adequate care and discretion when dealing with the issue of violence?

[12]  Standard 10 states that broadcasters should exercise care and discretion when dealing with the issue of violence.

[13]  Mr Frost argued, with reference to guideline 10d to Standard 10, that the violence was “disturbing” and therefore should have been confined to an actual news programme during Adults Only viewing times, and preceded by a warning.

[14]  Guideline 10d states:

In news, current affairs and factual programmes, where disturbing or alarming material is often shown to reflect a world in which violence occurs, the material should be justified in the public interest and warnings within news programmes should be used when appropriate.

[15]  This guideline is intended to apply to news programmes, as opposed to promos for news items. Due to the nature of promos, and in particular their brevity, the requirement to include a warning where “disturbing or alarming” material is shown cannot reasonably be expected to be fulfilled in such broadcasts.

[16]  Taking into account the contextual factors listed under good taste and decency – including the nature of the footage and that it related to a local news event with high public interest – we find that TVWorks exercised sufficient care and discretion when dealing with the issue of violence. We also note that the footage was signposted for viewers as the promo began with a voiceover which stated, “Dunedin’s ‘Occupy’ movement continues despite a trespass notice and a violent protest against the protestors” (our emphasis).

[17]  Accordingly, we decline to uphold the Standard 10 complaint.

Did the broadcaster adequately consider children’s interests?

[18]  Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm. Guideline 9a states that broadcasters should be mindful of the effect any programme or promo may have on children during these times, and avoid screening material that would disturb or alarm them.

[19]  While the promo was broadcast in the G time-band, it screened immediately before the news and within the host programme Home and Away – a programme which the Authority has previously recognised is not targeted at, nor likely to appeal to, younger child viewers.⁴ We consider it unlikely that younger children would be watching at this time unaccompanied by a parent or other adult. We reiterate that the promo began with a voiceover which referred to a “violent protest”, giving viewers an indication of the likely content and therefore an opportunity to exercise discretion with regard to their children’s viewing.

[20]  For these reasons and those outlined under Standard 1, we are satisfied that the broadcaster adequately considered children’s interests and we decline to uphold the Standard 9 complaint.

Did the promo encourage listeners to break the law or otherwise condone or promote criminal activity? 

[21]  The intent behind the law and order standard is to prevent broadcasts that encourage listeners to break the law, or otherwise promote, glamorise or condone criminal activity.⁵ The standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society.⁶

[22]  Mr Frost argued that the showing of “graphic” violence during children’s viewing times was likely to cause imitation in breach of guideline 2a. This guideline states that caution should be exercised in broadcasts which explain the techniques of crime in a manner which invites imitation.

[23]  TVWorks did not consider that the promo contained anything that encouraged viewers to break the law, and it disagreed that the footage invited or encouraged imitation by children or otherwise, taking into account the context in which it screened.

[24]  We do not consider that anything in the promo encouraged or invited viewers, including children, to engage in the type of behaviour shown. Rather, the footage related to an important development in a local news story and formed part of a promotion for that news item.

[25]  We conclude that the promo did not encourage viewers to break the law or otherwise promote, glamorise or condone criminal activity. We therefore decline to uphold the complaint that the promo breached Standard 2.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
27 March 2012

Appendix

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

1                  Matthew Frost’s formal complaint – 21 November 2011

2                 TVWorks’ response to the complaint – 16 December 2011

3                 Mr Frost’s referral to the Authority – 24 January 2012

4                 TVWorks’ response to the Authority – 3 February 2012

¹Turner and TVNZ, Decision No. 2008-112

²Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November, 2006)

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

⁴Simpson and TVWorks Ltd, Decision No. 2009-120 and Sundborn and TVWorks Ltd, Decision No. 2010-044

⁵See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082.

⁶Hunt and Māori Television, Decision No. 2009-010