BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has not upheld two complaints that a promo for the ASB Women’s Classic tennis competition was in breach of the good taste and decency and discrimination and denigration standards of the Pay Television Code of Broadcasting Practice. The promo depicted a tennis player’s skirt flying up in a brief action shot of her hitting the ball. While acknowledging the potential effect of repeatedly viewing this clip, the Authority found that ultimately the clip was not likely to undermine current norms of good taste and decency and did not contain the high level of condemnation or malice necessary to find a breach of the discrimination and denigration standard. The broadcaster provided an explanation for the selection of the clip and the Authority was satisfied that the promo would not cause harm at a level justifying regulatory intervention.

Not Upheld: Good Taste and Decency, Discrimination and Denigration

Introduction

[1]  A promo for the ASB Women’s Classic tennis competition used an action shot of a tennis player which showed her skirt flying up as her racket struck the ball. It was cropped to show her from below the shoulders to just above the knees.

[2]  The promo was broadcast throughout the tennis competition from 6-12 January 2020 on Sky Sport. The members of the Authority have viewed a recording of the promo and have read the correspondence listed in the Appendix.

The complaint

[3]  Rauni Haapamaki complained that the promo was in breach of the discrimination and denigration standard (Standard 6) of the Pay Television Code of Broadcasting Practice in New Zealand for the following reasons:

• It was a ‘misogynist and sexist image’ that focussed the ‘viewer’s eyes’ on the tennis player’s underwear.
• ‘This clip was shown during the tournament for hundreds of times belittling and shaming women by using them as sex objects.’
• This clip represented women’s tennis while men’s tennis was represented by one showing ‘a man hitting the ball’.
• The clip was shown ‘probably 20 times during each match during the 7 days of the tournament.’
• ‘A large Broadcasting Company like Sky [needs] to carry responsibility for offending people worldwide and casting New Zealand as a country where denigrating, sexualizing and discriminating images of professional women’s tennis players are allowed.’

[4]  Greg Ball complained that the promo breached the good taste and decency standard (Standard 1) and discrimination and denigration standard (Standard 6) of the Pay Television Code of Broadcasting Practice in New Zealand for the following reasons:

• ‘Selecting and repeatedly using an upskirt panty shot of a sportswoman is in bad taste.’
• ‘The shot is tightly cropped – you do not see the upper body, legs or feet.’
• ‘While such a view may be seen for a moment in a day's play, to choose it, as the only short clip to use repeatedly over the course of the tournament, is nothing but gratuitous sexual titillation.’
• The shot was akin to an intimate visual recording in breach of s 216 of the Crimes Act.
• ‘Sky Sport has taken [the clip] out of the context of a match and shown it in a brief clip of about 10 seconds. The frontal upskirt panty shot then becomes 10% of the clip.’
• It is denigrating to ‘women tennis players in particular and all women in general.’
• Sky continued to show the clip after receiving complaints and took the full 20 working days to respond.

[5]  Sky did not uphold either of the complaints for the following reasons:

• ‘[T]he content shows an athlete playing an impressive tennis shot. It is the nature of an athletic sport like tennis that athleticwear undergarments are sometimes visible during play, and designers often include built in undergarments in athleticwear for this reason.’
• `Sky focused on the play the athlete was making, with the camera tracking the racket and the ball. The fact that the athleticwear undergarment was visible (an occurrence that was anticipated when the garment was designed) was secondary to the tennis shot being played.’
• ‘It was absolutely not our intention to diminish or sexualise the women’s tennis, as we are proud supporters of women’s sport in New Zealand and actively seek to promote equal treatment of and access to women’s sport.’
• ‘The Authority has also maintained that it is “also well-established that in light of the requirements of the New Zealand Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard” …the Committee did not consider that the content breached the Discrimination and Denigration standard.’

[6]  Sky also commented:

We had a small number of similar complaints, and have reviewed our processes for selecting that image. It was content from our library of tennis images, and was used in between breaks during the event. The producer who prepped this particular image did not register that it may cause offence, and has assured us that she would not have used it if she did. We have subsequently removed that footage from our image library and will be more vigilant in image choice in the future.

The relevant standards

[7]  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. The purpose of this standard is to protect audiences from content that portrays or discusses material in a way that is likely to cause widespread undue offence or distress.¹

[8]  The discrimination and denigration standard (Standard 6) protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief. The importance of freedom of expression means that a high level of condemnation, often with an element of malice or nastiness, will be necessary to conclude that a broadcast encouraged discrimination or denigration in contravention of the standard.²

[9]  We note Mr Ball’s submission on intimate visual recordings in the Crimes Act 1961. However, our role is to apply broadcasting standards and consideration of provisions in the Crimes Act 1961 is outside our jurisdiction.

Our decision

[10]  Our starting point when we consider a complaint is that we recognise the importance of the right to freedom of expression, which includes both the broadcaster’s right to present information and ideas to the public, and the audience’s right to receive that information. Our task is to weigh the value of the broadcast item, as well as the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast, either to an individual or to society or the audience generally. We may only intervene where it is reasonable and justified to do so.

[11]  In this case, we did not consider that the promo would have caused harm at a level justifying regulatory intervention. We agree that the clip was ill chosen and unfortunate, especially given the cumulative effect of its repetition on viewers. However, we note that this clip was taken from Sky’s images library, and the producer who selected the clip was surprised by the offence caused, which was inadvertent. The image was used during coverage of the ASB Classic from 6-12 January 2020. Following receipt of complaints Sky advised that it removed this particular clip from its library.

Good taste and decency

[12]  We are aware of the community response to this clip from media coverage in relation to it.³ As we have said, we agree it was an unfortunate choice. However, we found that the shot was not gratuitous or titillating; it was not an ‘upskirt panty shot’ as described by the complainant, but was an image of an athlete in motion and we accept that any offence caused was inadvertent. While it may have given some viewers pause, it was unlikely to cause widespread undue offence (despite the issue receiving some publicity) or to undermine current norms of good taste and decency.

[13]  Context is important when determining a complaint under the good taste and decency standard.⁴ We considered the following contextual factors in our determination:

• The clip was brief (less than three seconds).
• The action was in slow motion, in contrast to the brief glimpses of under garments which might generally be visible in a live match.
• The clip was shown on a sports channel, during women’s tennis programming, so viewers would expect to see shots like this one which occur naturally in the game.
• Sports is unclassified content.
• The clip was shown repeatedly throughout the competition from 6-12 January 2020.
• The focus of the clip was on the movement of the tennis racket (that was why it was cut in that way).
• It was clear that the image was a sportswoman in the middle of a game; it was not titillating or gratuitous in this way (although the repeated use of this clip was unfortunate).
• The clip was relatively inexplicit.

[14]  We discussed whether the image was a negative portrayal of women tennis players that might influence viewers to perceive women players in a sexual rather than athletic way to the extent of causing offence. While the cumulative repetition may have given the impression that the broadcaster was being prurient, given the contextual factors above, including that this was an in motion athletic shot, we concluded that the image would not have caused widespread offence.

[15]  Taking into account the above factors, and the high threshold requiring regulatory intervention, we do not uphold the complaint under the good taste and decency standard.

Discrimination and denigration

[16]  We also found that the promo did not breach the discrimination and denigration standard.

[17]  The importance of freedom of expression means that a high level of condemnation, often with an element of malice or nastiness, is necessary to conclude that a broadcast encouraged discrimination or denigration in breach of the standard. Women are a recognised section of the community for the purposes of the standard.⁵ However, while we recognise the public response to this promo, and the view that this clip may be seen by some to perpetuate gender stereotypes, the clip did not contain the high level of condemnation or malice towards women as required to find a breach of this standard under current guidelines.⁶

[18]  Therefore, we do not uphold the complaint under this standard.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

29 June 2020

Appendix

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

Haapamaki

1.               Rauni Haapamaki’s complaint to Sky – 16 January 2020

2.               Sky’s response to Ms Haapamaki – 14 February 2020

3.               Ms Haapamaki’s referral to the BSA – 14 February 2020

Ball

4.               Greg Ball’s complaint to Sky – 10 January 2020

5.               Sky’s response to Mr Ball and subsequent correspondence – 14-19 February 2020

6.               Mr Ball’s referral to the BSA – 20 February 2020

Both

7.               Sky’s final comments – 22 May 2020

8.               Sky’s confirmation of broadcast dates – 15 June 2020

¹ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
² Guideline 6b
³ See for example: Complaints made after image of tennis player's underwear screened (RNZ, 16 January 2020); Tennis: Sky Sport sorry for closeup shot of tennis player's underwear (NZ Herald, 16 January 2020); Sky Sport rightfully called out on tennis upskirt image (Stuff, 18 January 2020) and Sky Sports In Hot Water for Shots of Players’ Underwear (Online Betting NZ, 20 January 2020)
⁴ Guideline 1a
⁵ Guideline 6a
⁶ Guideline 6b