BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Eyes Wide Shut – movie contained group sex scenes, coarse language, violence and drug use – allegedly in breach of children’s interests

Findings
Standard 9 (children’s interests) – film should have been classified AO 9.30pm – broadcaster did not adequately consider the interests of child viewers – upheld  

No Order

This headnote does not form part of the decision.

Broadcast

[1]   The movie Eyes Wide Shut was broadcast on TV One at 8.30pm on Saturday 1 March 2008. The film was about Bill and Alice Harford, a wealthy professional couple living in Manhattan.

[2]   The movie began with Bill and Alice attending a Christmas party thrown by a wealthy attorney named Victor Ziegler. During the scene, which was broadcast at approximately 8.43pm, Bill was called into Ziegler's private bathroom. Ziegler had been with an escort who had passed out after overdosing on heroin and cocaine. Bill, a doctor, brought her back to consciousness. The woman was shown unconscious with her breasts and pubic hair visible.   

[3]   In another scene, broadcast at 8.56pm, Alice was shown rolling a marijuana joint and then viewers saw her and Bill smoking it as they talked about fidelity and sexual fantasies.

[4]   During the movie Bill met Nick, an old acquaintance from medical school. Nick revealed that he was scheduled to play the piano at a secret sex party later that night. Using the password supplied by Nick, Bill gained access to the party, held at a mansion in a remote location. The party featured cloak- and mask-clad men and women performing quasi-religious rituals before retiring to watch or participate in a variety of sexual acts. During this scene, a number of women were dressed only in G-strings, and some were shown fully naked from the front. Groups of people were shown either performing sexual acts or watching others perform sexual acts, but no genitalia were visible at any time.  

[5]   The movie was preceded by the following verbal and visual warning:

The following programme is rated Adults Only and is recommended for a mature audience. It contains language, sex scenes and nudity that may offend and violence that may disturb some people.

Complaint

[6]   Mark and Jenny Hammond made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the movie breached Standard 9 (children’s interests). The complainants noted that when the film was released in cinemas it had an R18 age restriction.

[7]   The Hammonds argued that the movie was inappropriate for general viewing at 8.30pm because it contained adult themes including nudity, bad language and “an edgy context”. They stated that they were parents of teenage children and that the broadcaster was “exposing children to programmes they should not be viewing”.

Standards

[8]   Standard 9 and guidelines 9b and 9c of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:

Standard 9 Children’s Interests

During children’s normally accepted viewing times, broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

Guidelines

9b    When scheduling AO material to commence at 8.30pm, broadcasters should exercise discretion to ensure that the content which led to the AO rating is not shown soon after the watershed.

9c    Broadcasters should have regard to the fact that children tend to stay up later than usual on Friday and Saturday nights and during school and public holidays and, accordingly, special attention should be given to providing appropriate warnings during these periods.

Broadcaster's Response to the Complainant

[9]   TVNZ stated that Eyes Wide Shut was described in pre-publicity as being classified “Adults Only” and that the plot-line was described by the Listener as “an artful rendering of sexual jealousy” featuring a “highly stylised and bizarre cult society...”.

[10]   The broadcaster noted that there was one scene in which a woman had taken a drug overdose at a party and was shown naked. It maintained that this scene was important to the plot, as it was this woman who saved Bill at the sex party and the reason she gave for doing so was that he had saved her life.

[11]   TVNZ contended that “none of the strong adult material in the movie happens until after 9pm (including the use of the ‘f-word’)”. It noted that the sex party scene occurred at 9.58pm and argued that the sex scenes were “very stylised” and lasted only two minutes.  

[12]   The broadcaster stated that the movie was not “shown for general viewing” and pointed out that it was classified AO, was broadcast at 8.30pm and was preceded by a warning. It contended that 8.30pm was not considered to be within “children’s normally accepted viewing time” and that it was permitted to screen AO material after this time “even on weekends and during school holidays”
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[13]   TVNZ argued that the warning gave viewers a precise indication of the type of material the programme would contain. It considered that “by ensuring the strong adult sex scenes and language (F-word) played later in the movie (after 9pm)” TVNZ had taken into account the transition into AO time. The broadcaster declined to uphold the complaint that the movie breached Standard 9. 

Referral to the Authority

[14]   Dissatisfied with TVNZ’s response, the Hammonds referred their complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. They contended that the broadcaster had not properly described the “duration and content of the offensive scenes and the offensive language”. The Hammonds argued that the sex scenes were “extremely explicit with a range of sexual acts and full frontal female nudity”
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[15]   The complainants maintained that it was unrealistic to expect that children would not be up on a Saturday evening after 8.30pm or that children or young people would be properly supervised. They also noted that the movie was broadcast during daylight saving.

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.

[17]   Standard 9 requires that during children’s normally accepted viewing times, broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

[18]   The Authority has previously determined a complaint about the broadcast of Eyes Wide Shut in Decision No. 2003-049. In that decision, the complainant alleged that the broadcaster had failed to adequately consider the interests of child viewers by broadcasting the film on a Tuesday evening at 9.30pm during the school holiday period. The Authority declined to uphold the complaint finding that 9.30pm “was not regarded as children’s normally accepted viewing time” and that adequate warnings about the film’s content had been provided by the broadcaster.

[19]   The difference in this case is that the movie was broadcast at 8.30pm and on a Saturday night. Because of guideline 9c, which recognises that children tend to stay up later than usual on Friday and Saturday nights, the Authority finds that the children’s interests standard applies.

[20]   Appendix 1 of the Free-to-Air Television Code of Broadcasting Practice sets out the definitions of programmes that fall within the AO and AO 9.30pm classifications. These state:

AO – Adults Only

Programmes containing adult themes and directed primarily at mature audiences.

AO9.30pm – Adults Only 9.30pm–5am

Programmes containing stronger material or special elements which fall outside the AO classification. These programmes may contain a greater degree of sexual activity, potentially offensive language, realistic violence, sexual violence or horrific encounters.

[21]   TVNZ has argued that the movie was appropriately classified as an AO programme. In the Authority’s view, Eyes Wide Shut falls within the AO 9.30pm programme classification due to the degree of sexual activity and other adult content shown. TVNZ contended that “none of the strong adult material in the movie” occurred until after 9pm. Even though the more challenging sexual content was not shown until after 9.30pm, this does not affect the overall rating of the film. A starting time of 8.30pm would have signalled to viewers that this movie would contain a lesser degree of sexual material than was actually shown.

[22]   The Authority also notes that the film was classified R18 when it was released in cinemas, and it considers that this should have been a good indication to the broadcaster that the movie’s content was inappropriate for broadcast at 8.30pm, particularly on a Saturday evening when children stay up later.

[23]   For these reasons, the Authority finds that TVNZ failed to adequately consider the interests of child viewers by broadcasting the film at 8.30pm on a Saturday night. Accordingly, it upholds the complaint that the broadcast breached Standard 9 (children’s interests).           

Bill of Rights

[24]   The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determination. The  Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Eyes Wide Shut on 1 March 2008 breached Standard 9 of the Free-to-Air Code of Broadcasting Practice.

[25]   Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to make an order on this occasion. The Authority considers that the publication of this decision is sufficient to clarify its expectations surrounding the broadcast of R18 films at 8.30pm.

Signed for and on behalf of the Authority

Joanne Morris
Chair
4 July 2008

Appendix

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

1.            Mark and Jenny Hammond’s formal complaint – 12 March 2008
2.           TVNZ’s response to the formal complaint – 2 April 2008
3.           The Hammonds’ referral to the Authority – 18 April 2008
4.           TVNZ’s response to the Authority – 6 May 2008