Harang and Tod and Television New Zealand Ltd - 2003-114, 2003-115
- P Cartwright (Chair)
- Diane Musgrave
- Tapu Misa
- R Bryant
- A D B Tod
- Kristian Harang
ProgrammeReel Life: The Truth about Lesbian Sex
BroadcasterTelevision New Zealand Ltd
Reel Life: The Truth about Lesbian Sex – documentary examining lesbian sex – indecent – offensive
Standard 1 and Guideline 1a – context – majority – no uphold
This headnote does not form part of the decision.
 Reel Life: The Truth about Lesbian Sex was a documentary broadcast on TV One at 9.30pm on Wednesday 2 July 2003. The programme examined lesbian sex, focussing on lesbian relationships.
 Mr Harang complained to Television New Zealand Ltd, the broadcaster, that the item showed scenes of a sexual nature which breached the standard of good taste and decency.
 Mr Tod’s complaint to TVNZ maintained that the demonstration of sexual aids, combined with the explicit instruction on the performance of several sexual acts, was appalling and indecent. Mr Tod also stated that the programme inappropriately encouraged lesbian sex as an exciting and viable alternative to heterosexual sex.
 TVNZ advised that while the programme might not appeal to everyone, it was broadcast late at night, was classified "Adults Only" and was preceded by a warning which provided enough information to allow viewers to make an informed choice about whether or not to watch it.
 Dissatisfied with TVNZ’s decision, the complainants referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, a majority of the Authority declines to uphold the complaints.
 The members of the Authority have viewed a tape of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.
 Reel Life: The Truth about Lesbian Sex was a documentary broadcast on TV One at 9.30pm on Wednesday 2 July 2003. It examined lesbian sex, focussing on lesbian relationships which reflected their complexity and variety. The documentary provided graphic instruction on how to achieve sexual gratification with and without the use of various sexual aids.
 Mr Harang contended that the graphic nature of the scenes was sufficient to effect a breach of Standard 1 of the Television Code.
 Mr Tod complained that the documentary inappropriately portrayed lesbian sex as a viable and more exciting alternative to heterosexual sex – noting that the "true" and "normal" function of sex was the reproduction of the human race. He also expressed his absolute disgust with the graphic use of sexual paraphernalia and instructive props.
 In view of the standards nominated by the complainants, TVNZ assessed the complaint under Standard 1 of the Free-to-Air Television Code of Broadcasting Practice. The Standard and relevant Guideline reads:
Standard 1 Good Taste and Decency
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.
1a Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme’s classification (see Appendix 1). The examples are not exhaustive.
The Broadcaster’s Response to the Complainants
 TVNZ stated that Reel Life: The Truth about Lesbian Sex was presented in a light-hearted and entertaining fashion and was clearly directed at adult viewers. TVNZ referred to several previous decisions about programmes that had provided similar information about sexual activity and relationships. In particular, the broadcaster noted the Authority’s 1997 decision relating to a programme in the television series Sex/Life. In that decision, the Authority stated that while the content of the programme was not appropriate for broadcast at 8.30pm it "may be appropriate for a 9.30pm or later time slot".
 TVNZ advised that the programme began at 9.30pm, a full hour after the recognised AO watershed. The advance publicity and the billings for the documentary provided an indication of the content to be included and, in TVNZ’s view, the warning attached to the beginning of the programme was clear and unambiguous. The warning stated:
Tonight’s Reel Life documentary on One, The Truth about Lesbian Sex, is suitable only for a mature audience. It contains sexual acts and information that may offend some people. We strongly advise discretion.
 TVNZ contended that, in light of the warnings and the advance publicity, the majority of viewers would have been fully prepared for the content of the documentary. For those who had not been exposed to the publicity, the broadcaster argued that the programme title, Reel Life: The Truth about Lesbian Sex, was extremely clear. Therefore in the broadcaster’s opinion, the viewer had sufficient information to make an informed decision about whether to watch the documentary or not.
 The broadcaster also noted that, although the documentary was frank in its presentation and indicated the nature of lesbian sex, there were no scenes in which sex was explicitly shown.
 In light of the issues referred to above, TVNZ concluded that Standard 1 of the Television Code had not been breached.
The Referrals to the Broadcasting Standards Authority
 In their referrals, each complainant stated that they were dissatisfied with TVNZ’s response. Mr Harang reiterated his concern with the content of the documentary and referred in a general sense to previous decisions of the Authority which supported his contention. He wrote:
…previous decisions by the Authority have ruled in favour of a complainant where the programme has been of a sensational nature rather than that of a documentary nature. I consider that parts of this programme were of the sensational titillating [kind] rather than a documentary.
 Mr Tod, in his referral, maintained that TVNZ’s decision went against fundamental core values of a civilised and decent society.
The Broadcaster’s Response to the Authority
 In response to Mr Harang’s complaint, the broadcaster disagreed with the use of the word "titillating" to describe the documentary. TVNZ stated:
It [the programme] approached the topic of lesbian sex in a light-hearted and humorous manner – but it was hardly arousing in nature.
The Authority’s Determination
 When it determines a complaint that a broadcast contravenes Standard 1 of the Television Code, the Authority is required to determine whether the material complained about breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but does not determine whether the programme breached the standard. Accordingly, the Authority has considered the context in which the documentary complained about was broadcast.
 A majority of the Authority notes that the documentary was broadcast at 9.30pm, an hour after the AO watershed. It observes that there was no nudity, and that those parts of the documentary which demonstrated the explicit use of sexual aids, were broadcast after 10pm. The majority acknowledges the relevance of the AO classification and the use of warnings, and notes that the start time clearly targeted an adult audience. Another factor relevant to its determination includes the nature of the programme, covered in its title, which the majority considers was a candid and informative representation of some characteristics of the lesbian community.
 The majority notes that the programme included observations from several academic sources together with the results of a reasonably extensive research programme conducted at the University of Amsterdam. In so doing, it was satisfied that the documentary was ostensibly educational, even though aspects of the content were regarded by some members of the Authority as somewhat challenging. Accordingly, a majority of the Authority does not consider that the broadcast breached the Standard 1 requirement for good taste and decency in context.
 A minority of the Authority (Mr Rodney Bryant) disagrees. While acknowledging the contextual arguments considered by the majority, the minority refers specifically to a segment of the documentary depicting simulated oral sex with the use of a male sexual aid. Given that this aspect of the programme content was neither explained nor justified within the documentary treatment, the minority considers that it was gratuitous and pushed the boundaries of good taste and decency beyond what the Authority has previously regarded as acceptable. Similarly, the detailed and graphically simulated depiction of two specific sexual practices, in the minority’s view, went beyond what is reasonably regarded as being within the parameters of the requirement for good taste and decency. Accordingly, the minority concludes, the documentary breached the Standard 1 requirement of the Television Code.
 A majority of the Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is neither reasonable nor demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the reasons given above, a majority of the Authority declines to uphold the complaints.
Signed for and on behalf of the Authority
16 October 2003
The following correspondence was received and considered by the Authority when it determined the complaint from Mr Harang:
1. Mr Harang’s Complaint to Television New Zealand Ltd – 3 July 2003
2. TVNZ’s Response to the Formal Complaint – 24 July 2003
3. Mr Harang’s Referral to the Broadcasting Standards Authority – 26 July 2003
4. TVNZ’s Response to the Authority – 6 August 2003
5. Mr Harang’s Final Comment – 14 August 2003
The following correspondence was received and considered by the Authority when it determined the complaint from Mr Tod:
1. Mr Tod’s Complaint to Television New Zealand Ltd – 5 July 2003
2. TVNZ’s Response to the Complaint – 14 July 2003
3. Mr Tod’s Formal Complaint to Television New Zealand Ltd – 18 July 2003
4. TVNZ’s Response to the Formal Complaint – 31 July 2003
5. Mr Tod’s Initial Referral to the Broadcasting Standards Authority – 18 July 2003
6. Mr Tod’s Final Referral to the Broadcasting Standards Authority – 5 August 2003
7. TVNZ’s Response to the Authority – 15 August 2003