BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
7 Days – contained segment called “My Kid Could Draw That” – comments made about picture drawn by a child – allegedly in breach of good taste and decency and children’s interests

Findings
Standard 1 (good taste and decency) – unnecessary for child to be identified – linked young girl to ribald adult sexual humour – exploitative – upheld

Standard 9 (children’s interests) – programme broadcast outside of children’s normally accepted viewing times – not upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]   An episode of the comedy programme 7 Days was broadcast on TV3 at 10pm on Friday 25 September 2009. The programme involved the host questioning two three-person teams of comedians about various events which had been reported in the media during the week.

[2]   During a segment called “My Kid Could Draw That”, each team was shown a picture drawn by a child that related to an event which had been reported in the news that week. The team members then had to decipher which recent news event the children were trying to depict in their drawings.

[3]   At the beginning of the segment, the host turned to one of the teams and said, “What has this kid drawn from the last seven days?” A young girl dressed in a school uniform was shown on screen. She introduced herself and held up her picture. Her picture showed some prisoners in a prison cell; two were sleeping in the top bunk of a bed while another two were shown arguing about who should get in the bottom bunk first.    

[4]   After some commentary, the team of comedians was unable to figure out what news event the picture depicted. The girl was then shown explaining that her picture concerned a proposal being looked at by the government regarding the double-bunking of prisoners in cells to ease overcrowding. She went on to say that part of her picture read, “No money, plus a lot of prisoners, equals a lot of grossness up ahead.”

[5]   After the girl was shown explaining her picture, the host said:

The number of prisoners in New Zealand has reached an all-time high this week meaning some jails are resorting to double-bunking to manage the overflow. Now I’m married, so if I have to share a room with my sexual partner, why shouldn’t they?

[6]   One of the comedians then stated, “I think the sign should have read: a lot of grossness and a lot of head”. Another then said, “It’s nice that they had the little sleepy hats, because then the big guys come in and ‘Oh, can’t bugger him, it’s nigh-nighs’”, while another comedian retorted, “Or, thanks, gives me something to hold on to”.    

Complaint

[7]   Ralph Gordon made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the programme had breached broadcasting standards.

[8]   The complainant argued that the discussion about the young girl’s picture “became innuendo-laden and then more graphic regarding the likelihood of double-bunking leading to homosexual behaviour”. He stated that his complaint concerned the inappropriateness of asking a child to submit a picture and discussing it in the manner in which it was, when the child and her classmates could have been watching.

Standards

[9]   TVWorks assessed the complaint under Standards 1 and 9 and guidelines 1a, 1b and 9a of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Guidelines

1a   Broadcasters will take into account current norms of good taste and decency bearing in mind the context in which any content occurs and the wider context of the broadcast e.g. programme classification, target audience, type of programme and use of warnings etc.

1b   The use of visual and verbal warnings should be considered when content is likely to disturb or offend a significant number of viewers except in the case of news and current affairs, where verbal warnings only will be considered. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters should consider the interests of child viewers.

Guideline 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 that would disturb or alarm them.

Broadcaster's Response to the Complainant

[10]   With respect to good taste and decency, TVWorks pointed out that the programme had been broadcast at 10pm, was classified AO and had been preceded by a verbal warning.

[11]   The broadcaster stated that 7 Days was fronted by a panel of comedians who intentionally mocked world events, sections of society and news reporting itself. It contended that the audience would have expected the type of challenging material contained in the episode and that regular viewers would not have been surprised at the particular content complained about.

[12]   TVWorks argued that the comments that had caused Mr Gordon concern did not fall outside the AO classification and played on a theme that was “common fodder for comedians”. It contended that the comments stopped short of any explicit description of sexual activity and instead used colloquial references that many adults were familiar with. It declined to uphold the complaint that the programme breached Standard 1.

[13]   Looking at children’s interests, the broadcaster argued that broadcasting standards only required it to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm. It pointed out that the programme was broadcast at 10pm, an hour-and-a-half after the Adults Only watershed, and argued that the standard did not apply in the circumstances.

[14]   Turning to the complainant’s concern about the young child and her classmates watching the programme, TVWorks stated that it was the responsibility of parents to monitor their children’s viewing outside children’s normally accepted viewing times. It declined to uphold the Standard 9 complaint.    

Referral to the Authority

[15]   Dissatisfied with TVWorks’ response, Mr Gordon referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He believed that the programme gave rise to a unique situation, because the programme makers “actively sought the involvement of children in making a programme which then contained a content warning”.

Authority's Determination

[16]   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.

Standard 1 (good taste and decency)

[17]   When the Authority considers an alleged breach of Standard 1, it takes into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• 7 Days was classified AO
• the programme was broadcast at 10pm
• it was broadcast outside of children’s normally accepted viewing times
• the expectations of regular viewers.

[18]   The Authority notes that there are contextual factors which favour the broadcaster’s position in relation to the current complaint. These include the programme’s AO classification and the 10pm time of broadcast. Factors such as these, however, will not always be sufficient to prevent a programme breaching standards of good taste and decency.

[19]   The Authority has previously stated (e.g. Yeoman and TVNZ¹) that standards relating to good taste and decency are primarily aimed at broadcasts that contain sexual material, nudity, violence or coarse language. However, as noted in the Authority’s practice note on good taste and decency, the standard encompasses a wider range of issues than those mentioned above. The Authority has said that it “will 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

[20]   The Authority considers that the child’s presence and identification in the segment was unnecessary and exploitative. Essentially, the segment directly linked the young girl to a ribald discussion about sex and drew her into a context which was highly inappropriate.

[21]   The Authority points out that its concerns relate solely to the fact that the drawing subject to the crass remarks was directly linked to an identifiable child and, had the child not been identified, it would hold no such concerns. In this respect, the Authority finds that the inclusion of the young girl combined with the manner in which her picture was commented on in the programme was offensive and strayed beyond the bounds of good taste and decency. 

[22]   Having reached this conclusion, the Authority must consider whether to uphold this complaint as a breach of Standard 1.

[23]   The Authority acknowledges that upholding the Standard 1 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Turner and TVNZ,³ the Authority determined that upholding a complaint under Standard 1 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In the Authority’s view, the primary objective of Standard 1 is to protect against the broadcast of sexual content, violent material, and language that exceeds current norms of good taste and decency in the context in which it was shown. As outlined above in paragraph [19], the standard also deals with any content that is likely to cause offence or distress.

[24]   With that in mind, the Authority must consider whether it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of Standard 1 on this occasion. It finds that upholding a breach of the good taste and decency standard on this occasion would ensure that broadcasters do not use identifiable children in a manner that exploits them and links them to adult sexual humour. In this respect, upholding this complaint clearly promotes the objective of Standard 1, and therefore places a justified and reasonable limit on TVWorks’ freedom of expression.

[25]   Accordingly, the Authority upholds the complaint that the programme breached Standard 1.

Standard 9 (children’s interests)

[26]   Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm. 7 Days was broadcast at 10pm, an hour-and-a-half after the 8.30pm Adults Only watershed.

[27]   The Authority notes that including identifiable children in programmes of this genre may entice them to watch, and this is viewed with some concern by the Authority. However, the Authority agrees with the broadcaster that it is the responsibility of parents to monitor their children’s viewing outside of children’s normally accepted viewing times.

[28]   Accordingly, the Authority declines to uphold the complaint that the programme breached Standard 9. 

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of 7 Days on 25 September 2009 breached Standard 1 of the Free-to-Air Television Code of Broadcasting Practice.

[29]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to do so on this occasion. In the Authority’s view, this is a novel situation and the decision clarifies its expectations surrounding the inclusion of identifiable children in this genre of programme.

Signed for and on behalf of the Authority

Peter Radich
Chair
23 March 2010

Appendix

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

1.           Ralph Gordon’s formal complaint – 30 September 2009
2.          TVWorks’ response to the formal complaint – 29 October 2009
3.          Mr Gordon’s referral to the Authority – 2 November 2009
4.          TVWorks’ response to the Authority – 5 November 2009

¹Decision No. 2008-087

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

³Decision No. 2008-112