BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority did not uphold a complaint that an episode of 20/20 aired on free-to-air television on a Sunday at 9am, covering the abduction of Steven Stayner and the subsequent murder of several women by Steven’s brother Cary Stayner, breached the children’s interests and good taste and decency standards. The Authority found that, while the broadcast discussed some potentially distressing themes and subject matter, such as rape, murder and kidnapping, viewers had sufficient information to enable them to make informed choices about whether they or children in their care should view the broadcast. The Authority highlighted the importance of audience expectations and target audiences in their determination and ultimately found any restriction on the broadcaster’s right to freedom of expression on this occasion would be unjustified.

Not Upheld: Children’s Interests, Good Taste and Decency

The broadcast

[1]  An episode of 20/20 discussed the case of two brothers Steven and Cary Stayner. Steven was abducted as a seven-year-old by a man, Ken Parnell, who sexually abused him. Cary murdered several women in Yosemite National Park.

[2]  The programme was introduced by a voiceover: ‘this is a story of two brothers, one a hero and the other a monster.’ Cary is then heard saying: ‘I pulled out a gun’ (‘and put it to her head’ is shown in subtitle). The broadcast then explained that Ken Parnell raped Steven and that when Steven was 14 years old, Mr Parnell decided to abduct another victim. Steven then rescued the other victim and himself.  The broadcast then focussed on Steven’s brother Cary, who attacked and killed three women; and then six months later killed another woman.

[3]  Throughout the broadcast, the host gave several warnings prior to descriptions of the murders:

• ‘[Cary] Stayner has picked his victims and is about to commit a heinous crime that will set off the biggest search operation in the park’s history and a warning some of you may find details of this story disturbing.’
• ‘Juli is missing. Investigators believe she could be alive and the desperate hunt for her becomes the biggest search operation in the history of Yosemite National Park. And once again a warning some of you will find details of this story disturbing.’
• ‘Once more, some of Cary’s confession may be upsetting.’

[4]  The programme was not preceded with an audience advisory.

[5]  The episode screened first on 13 August 2019 at 9.30pm. It was then repeated on Thursday 15 August 2019 at 11.30pm and again on 8 September 2019 at 9am on TVNZ 1. The broadcast of the episode on 8 September 2019 is the subject of this complaint. As part of our consideration of this complaint, we have watched a recording of the broadcast and read the correspondence listed in the Appendix.

The complaint

[6]  Steven Gibb complained that the broadcast breached the children’s interests and good taste and decency standards of the Free-to-Air Television Code of Broadcasting Practice for the following reasons:

• The subjects of rape and abduction are ‘completely inappropriate for weekend morning viewing especially given that it is repeated on plus one channels.’
• This programme was easily able to be accessed by children as it was on free-to-air. ‘There is no child lock pin to restrict children from viewing this as they change through channels which show youth programming.’
• Content like this should not be shown during the PGR timeband.
• ‘Any child can change the channel at any time and you cannot expect them to manage the ratings systems when they are not yet reading.’

The broadcaster’s response

[7]  TVNZ submitted the broadcast did not breach the children’s interests and good taste and decency standards for the following reasons:

• 20/20 is a long-format current affairs programme aimed at an adult audience.
• The broadcast screened in PGR time on Sunday morning (for both TVNZ 1 and TVNZ +1), on a channel aimed at adult viewers, in a programme line-up aimed at adult viewers.
• The PGR certificate means programmes containing material more suited for mature audiences but not necessarily unsuitable for child viewers when subject to the guidance of a parent or an adult. PGR programmes may be screened between 9am and 4pm, and after 7pm until 6am. There is an expectation that parents monitor their children’s viewing of PGR certificate programmes.
• ‘News broadcasts often discuss current events including serious crime such as murder, child abuse, rape, terror attacks and natural disasters of a large scale where people are killed; and there is an expectation that the broadcasts will carry some footage of crimes and disasters including film of bodies, accidents and civil unrest.’
• While some details of the offending described in the programme may be disturbing to some viewers, ‘numerous warnings were given in regard to this material.’
• The introduction gave a clear description of the content of the upcoming programme so that viewers could make an informed decision about whether they wished to view such material.
• ‘The content of the programme, and the way it is presented is consistent with the expectations of a current affairs programme screening in PGR time, and did not require that it was restricted to screening to AO, Adults Only time.’
• The BSA has previously acknowledged ‘that children of a vulnerable age are unlikely to watch the news unattended’.¹ There is an expectation that parents exercise discretion around viewing news and current affairs programmes with their children.
• The times of the different screenings reflect the expected rating potential rather than being based on the content of the programme.

The relevant standards

[8]  The children’s interests standard states that broadcasters should ensure children can be protected from broadcasts which might adversely affect them. Material likely to be considered under this standard includes violent content or themes, offensive language, social or domestic friction and dangerous, antisocial or illegal behaviour where such material is outside audience expectations of the station or programme.²

[9]  In news, current affairs and factual programmes, disturbing or alarming material should be justified in the public interest. Broadcasters must use judgement and discretion when deciding the degree of graphic material to be included in news programmes, and should broadcast an audience advisory when appropriate, particularly when children are likely to be viewing.³

[10]  The good taste and decency standard states that current norms of good taste and decency should be maintained, consistent with the context of the programme. The Authority will consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause widespread undue offence or distress.⁴

[11]  Mr Gibb also raised the violence standard in his referral. However, pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider his complaint under the standard raised in the original complaint to the broadcaster. However, we note that many of the considerations under the violence standard are the same as those under the good taste and decency and children’s interests standards.

Our findings

Freedom of expression

[12]  Our starting point is that we recognise the right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[13]  In reaching our decision on this complaint, we have given careful consideration to the possible harm arising from this broadcast, particularly to children. Overall, we found that, while the broadcast contained potentially distressing themes and subject matter, viewers had sufficient information, through the programme’s introduction, warnings given by the host and other contextual factors, to make informed viewing choices for themselves and children in their care. Therefore, any restriction on the broadcaster’s right to freedom of expression on this occasion would be unjustified.

Children’s interests

[14]  The purpose of the children’s interests standard is to enable audiences to protect children from material that unduly disturbs them, is harmful or is likely to impair their development.⁵ The focus of the standard is on harm that may be unique to children and the children’s interests standard may be more rigorous than the general good taste and decency standard.⁶

[15]  Context is an important consideration when assessing complaints under this standard.⁷ The context of the programme and the wider broadcast, including the steps taken by the broadcaster to enable audiences to protect children from material that may unduly disturb them, is therefore crucial in determining whether the standard has been breached. The relevant contextual factors we have considered in this case include:

• this broadcast screened during the PGR timeslot
• 20/20 is an unclassified current affairs programme targeted at an adult audience
• the programme was scheduled between The Big Ward and Marae, both of which have adult target audiences
• there is an audience expectation that 20/20 will cover stories of criminal activity that are particularly sensational or distressing
• the distressing nature of the subject matter, which featured violent and sexual themes
• while the programme contained graphic descriptions of events, it did not contain any graphic images or footage
• the host gave several warnings throughout the broadcast prior to particularly graphic descriptions
• there was no warning or audience advisory prior to the beginning of the broadcast.

[16]  The timing of the broadcast (in the PGR timeband) is an important consideration as the use of timebands is one of the primary ways that broadcasters enable audiences to make informed viewing choices and regulate their own, and their children’s, viewing. While the timing of a broadcast can signal to audiences whether a broadcast is likely to cause harm or require parental supervision, it is not determinative of the target audience of a programme. PGR is defined as follows:⁸

PGR – Parental Guidance Recommended

Programmes containing material more suited for mature audiences but not necessarily unsuitable for child viewers when subject to the guidance of a parent or an adult.

[17]  We recognise that this broadcast discusses distressing themes such as abduction, rape and murder, with some graphic descriptions of violent acts. We also note the initial two broadcasts of this episode were aired during the AO timeband, while this broadcast was aired during the PGR timeband on a Sunday morning. However, on this occasion, we do not consider that the broadcast went beyond what is acceptable in the PGR timeband.

[18]  The level of choice and control that viewers and listeners have over the content to which they expose themselves and children in their care, also impacts on the application of the standards.⁹ The freedom and capacity of an audience to make viewing choices and to be able to prevent children and young people from viewing inappropriate material are significant factors in determining what is, and what is not, acceptable. When audiences are adequately informed of the nature of a programme it follows that they are less likely to be surprised or offended by its content and therefore that the broadcast is less likely to breach the standards.

[19]  While we consider an audience advisory or warning at the beginning of the broadcast would have been beneficial to viewers on this occasion, we find the broadcast did not reach the threshold necessary to require such a warning. The introduction, while sensational for the purpose of grabbing viewers’ attention, clearly set out the content of what would be covered in the episode, giving viewers the opportunity to decide whether they wanted to watch it. Warnings were also given by the host throughout the broadcast prior to segments that discussed particularly distressing or graphic elements of the story.

[20]  There is an established audience expectation that 20/20 will cover stories that deal with similar themes to those in this broadcast. We do not consider the episode went beyond those expectations.  Additionally, TVNZ 1 has an adult target audience with very little programming targeted at children and this programme featured in a line-up of shows similarly targeted at adults.

[21]  Considering the established audience expectations and target audience, in addition to the programme’s introduction and the warnings given by the host throughout, we find viewers had sufficient information to enable them to make informed decisions about the broadcast and to protect children in their care from material that had the potential to unduly disturb them.

[22]  Therefore we do not uphold the complaint under the children’s interests standard.

Good taste and decency

[23]  We recognise that attitudes towards good taste and decency differ widely. Audiences should have the freedom and capacity to make viewing choices, and in our diverse society, we must be cautious when considering matters of taste.¹⁰

[24]  We consider the factors discussed above at paragraph [15] to also be relevant to our consideration under the good taste and decency standard.

[25]  Similar to our analysis under the children’s interests standard, the issue of whether viewers had sufficient information to enable them to make informed decisions about whether or not to view the broadcast is central to our determination under this standard.¹¹

[26]  The programme discusses potentially distressing themes and events and contains, at times, graphic descriptions of these events. However, we do not find the content of the broadcast was likely to offend or disturb a significant section of the audience in the context of this being a factual programme about real life serious criminal events. 20/20 has established audience expectations surrounding the type of stories it covers and both 20/20 and TVNZ 1 have adult target audiences.

[27]  Additionally, while an audience advisory prior to the broadcast may have provided viewers with more information about what was to come in the broadcast, the introduction clearly set out the subject matter of the episode and multiple warnings were given by the host later in the broadcast, prior to some of the more graphic sections.

[28]  Accordingly, we find that, while the broadcast had the potential to distress some viewers, they had sufficient information to make an informed viewing choice and therefore the broadcast was unlikely to cause widespread and undue offence or harm.

[29]  Therefore, we do not uphold the complaint under the good taste and decency standard.

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

Judge Bill Hastings

Chair

9 March 2020

Appendix

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

1  Steven Gibb’s original complaint – 9 September 2019

2  TVNZ’s decision – 7 October 2019

3  Mr Gibb’s referral to the BSA – 16 October 2019

4  TVNZ’s confirmation of no further comment -  13 February 2020

¹ Barker and Television New Zealand Limited, Decision No. 2000-033
² Guideline 3a
³ Guideline 3d
⁴ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
⁵ Commentary: Children’s Interests, Broadcasting Standards in New Zealand Codebook, page 13
⁶ As above, page 14
⁷ Guideline 3b
⁸ Definitions, Broadcasting Standards in New Zealand Codebook, page 9
⁹ Choice and Control, Broadcasting Standards in New Zealand Codebook, page 7
¹⁰ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
¹¹ Guideline 1b