Hamilton and TelstraClear Ltd - 2004-094
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Ian Hamilton
ProgrammeThe 5th Wheel
Channel/StationSKY 1 # 2
Complaint under s.8(1)(a) of the Broadcasting Act 1989
The 5th Wheel – overt sexual content – allegedly bad taste and inappropriate for children
Standard S2 (good taste and decency) – context – upheld
Standard S20 (children) – unacceptable for broadcast during children’s normally accepted viewing times – upheld
Section 16(4) – $1,500 costs to the Crown
This headnote does not form part of the decision.
 An episode of The 5th Wheel, an American dating show which featured overt sexual content, was broadcast on Sky1 at 6.30pm on 5 February 2004. In the episode, two men and two women went on a date horse riding, and then to dinner. At dinner, a third woman (a Las Vegas showgirl) joined the date and the contestants then chose who they preferred to date again. Throughout the episode the contestants were shown in various states of undress and sexual activity, including several shots of one of the women topless, a shot of a man and woman in a bath and a shot of a man and an apparently drunk woman engaged in heavy petting. The audience was told that the latter couple had almost had sex. Graphics were used to mask some of the nudity and conduct. The contestants were also shown verbally abusing each other. For example, one man called one of the women a “fat chick” and a “nasty slut” and said another woman was only good for her chest.
 Sky1 is available to subscribers of Sky Network Television Ltd and TelstraClear Ltd, as a result of a programme supply agreement TelstraClear has with Sky.
 Ian Hamilton, a TelstraClear subscriber, complained about the broadcast. He considered that the programme’s content was sexually suggestive and wrote:
…it was an adults only TV show screening back to back with The Simpsons. My fear is that kids waiting for The Simpsons will flick over and see this type of footage in kids’ time slots.
 TelstraClear assessed the complaint under Standard S2 of the Standard Code of Broadcasting Practice for Subscription Television. Standard S2 provides that in the preparation and presentation of programmes, broadcasters are required:
S2 To take into consideration currently accepted norms of decency and taste in language and behaviour, bearing in mind the context in which any language or behaviour occurs.
Broadcaster's Response to the Complainant
 TelstraClear advised the complainant that it had investigated his complaint with its programming supplier, Sky. It informed Mr Hamilton that Sky had reviewed the programme to determine whether it had breached Standard S2 (good taste and decency), by screening the programme at 6.30pm. It wrote:
This programme’s over the top humour to the point of being almost ridiculous or slapstick does not appeal to everyone and the occasional person may be offended. Sky doesn’t believe that Standard S2 was breached, however does agree that the programme is not acceptable for children’s viewing.
Bearing your comments and concerns in mind, the following steps have been taken:
- The programme has been upgraded to M (suitable for mature adults).
- Sky have made arrangements to move the programme to a 10.30pm timeslot.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr Hamilton referred his complaint to the Authority for investigation and review.
 The members of the Authority have viewed a tape of the item complained about and have read the correspondence listed in the Appendix. The Authority determines this complaint without a formal hearing.
 The Authority must consider the context of a broadcast to determine whether it breaches Standard S2 (good taste and decency). Accordingly, it notes the following relevant matters about the broadcast:
- It was broadcast at 6.30pm.
- The episode was rated PG.
- It was scheduled before an episode of The Simpsons, a programme on Sky 1 which would usually attract younger viewers.
 The Authority also notes that the programme was broadcast on a subscription television channel. It recognises that there may be a case for more lenient programme content regulation on subscription television than on free-to-air television. However, on this occasion the Authority considers that the broadcast breached broadcasting standards. It contained gratuitous nudity and overt sexual behaviour, aspects of which the Authority considers were lewd and distasteful, which was neither appropriate for broadcast in a PG rated programme nor at 6.30pm. The Authority therefore concludes that Standard S2 was breached.
 The Authority notes that the broadcaster’s response to Mr Hamilton’s formal complaint referred only to Standard S2. The Authority considered that the complaint also should have been assessed by the broadcaster under Standard S20 (children) as the complainant clearly stated in his original complaint that he was concerned about the programme’s broadcast in what he called a “kids’ time slot”. Standard S20 reads:
S20 Subscription television broadcasters acknowledge that programmes screened during children’s normally accepted viewing times should be acceptable for them.
 The Authority sought the broadcaster’s comments on whether the programme breached Standard S20. The broadcaster responded that it did not consider Standard S20 was breached.
 For the reasons already given, the Authority considers that the programme complained about was unsuitable for broadcast during a time children could reasonably be expected to be viewing television. It concludes that Standard S20 was breached.
For the above reasons the Authority upholds the complaint that the broadcast by TelstraClear Ltd of The 5th Wheel at 6.30pm on 5 February 2004 breached Standards S2 and S20 of the Standard Code of Broadcasting Practice for Subscription Television.
 Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Act. It invited submissions from the parties.
 Mr Hamilton submitted that TelstraClear should be ordered to pay $5,000 costs to the Crown and to pay $150 to him for his time and effort.
 In its submission, TelstraClear submitted that it was not a broadcaster. The Authority considered and rejected this submission, after taking legal advice on whether TelstraClear was a “broadcaster” as defined in s.2(1) and s.2(2) of the Act.
 TelstraClear submitted that, if the Authority was satisfied that it was a “broadcaster”, it should consider the following matters in mitigation. It noted that in its response to Mr Hamilton’s original complaint, it had advised that Sky had agreed to change the rating of the programme and to reschedule it to a later time slot. It advised the Authority that the rescheduling had not been completed in a timely fashion due to an administrative error by Sky. It informed the Authority that it had since been advised by Sky that Sky had taken steps to improve its internal processes in relation to any schedule changes resulting from a customer complaint. TelstraClear submitted that it was regrettable that Sky did not complete the rescheduling in a timely manner and that it should not be accountable for Sky’s error. TelstraClear did not consider that an order should be imposed against it in these circumstances.
 Taking into account all the circumstances of the complaint, and the submissions received from the parties, the Authority considers an order for costs of $1,500, payable to the Crown, is appropriate. It considers that the action that was proposed to be taken on behalf of TelstraClear was insufficient and would still have been, even if implemented as intended. Furthermore, the Authority does not accept that TelstraClear’s liability should be reduced because it was not in a position to implement the proposed scheduling change. The Broadcasting Act makes it clear that broadcasters are responsible for broadcasting standards in relation to the programmes which they broadcast, irrespective of the degree of control they have over specific content.
Pursuant to s.16(4) of the Broadcasting Act 1989, the Authority orders TelstraClear Ltd to pay costs to the Crown in the amount of $1,500 within one month of the date of this decision.
This order is enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
12 August 2004
The following correspondence was received and considered by the Authority when it determined this complaint:
- Ian Hamilton’s Formal Complaint to TelstraClear Limited – 8 February 2004
- TelstraClear’s Response to the Formal Complaint – 8 March 2004
- Mr Hamilton’s Referral to the Authority – 23 March 2004
- TelstraClear’s Further Letter to the Authority – 2 June 2004
- Mr Hamilton’s Submission on Orders – 30 June 2004
- TelstraClear’s Submission on Orders – 7 July 2004