BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
American Sex – nudity and sexual activity – no educational value – sensational and offensive

Findings
Standard G2 – AO rating – clear warning – broadcast at 9.30pm – activity involved consenting adults – not gratuitous – majority – no uphold

Standard G12 – not naturally accepted viewing times for children – no uphold

This headnote does not form part of the decision.

Summary

An episode of American Sex was broadcast on TV3 between 9.30 – 10.30pm on Saturday 9 December 2000. The series was publicised as a light-hearted look at the American sex industry.

Mr Harang complained to TV3 Network Services Ltd, the broadcaster, that as the programme included scenes of naked women and sexual activity, it was offensive and unsuitable for children.

TV3 responded that American Sex screened an hour after the AO watershed and was preceded by a written and verbal warning. Furthermore, it contained no full frontal nudity or explicit sexual activity and had been scheduled to follow a programme which was adult oriented, the broadcaster said. It declined to uphold the complaint.

Dissatisfied that TV3 did not respond initially within 20 working days, Mr Harang referred the complaint to the Broadcasting Standards Authority under s.8(1)(b) of the Broadcasting Act 1989.

For the reasons given below, a majority of the Authority declines to uphold the complaint.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines this complaint without a formal hearing.

Kristian Harang complained to TV3 that the broadcast of American Sex at 9.30pm on 9 December breached broadcasting standards as it included scenes of naked women and "other bad sexual scenes". He would elaborate his concerns, he added, when he referred his complaint to the Broadcasting Standards Authority. As he did not receive a response after 20 working days, he referred his complaint to the Authority.

TV3’s response to Mr Harang crossed in the mail with his referral to the Authority. TV3 assessed the complaint against the standards nominated by Mr Harang. They require broadcasters:

G2  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.

G12 To be mindful of the effect any programme may have on children during their normally accepted viewing times.

TV3 stated that the programme was a documentary which looked at some aspects of the sex industry in the United States. The episode broadcast on 9 December, among other things, had looked at adult and pornographic film making and sex aid stores. TV3 noted that that the programme was rated AO, preceded by a clear warning, and started at 9.30pm, which was an hour after the watershed. Moreover, it had been cut in order to comply with the standards, and had been preceded by a programme which would not appeal to younger viewers. In addition, the series was not broadcast during the holiday period over Christmas.

Because of these contextual matters, and because there were no sexual acts portrayed and minimal full frontal nudity, TV3 said that the programme, while frank, did not exceed what was acceptable to adult viewers. It declined to uphold the standard G2 aspect of the complaint.

In regard to standard G12, TV3 pointed to the time of the broadcast and to the warning, and explained that the programme was not promoted as "family viewing". It declined to uphold that aspect as well.

In his referral, Mr Harang complained specifically about the portrayals of naked women. One sequence, he wrote, involved naked women throwing food at each other and, he added, this involved sexual contact. Mr Harang considered that much of the content was offensive and pointed out that there was no way to stop children or teenagers watching the broadcast. He described the material as sensational and not educational.

In its response to the Authority, TV3 expressed its displeasure that Mr Harang had not disclosed the substance of his complaint until it was referred to the Authority. As a consequence, it explained that it was necessary to introduce new material at that stage.

TV3 repeated the contextual issues noted above, adding that the series was cut extensively by its appraiser. Moreover, because of the Authority’s research into children’s viewing times, it had not scheduled the programme until 9.30pm.

Turning to the content of the item, TV3 stated that it began "with the relatively innocuous story of nude sky-diving", and argued that this would have allowed parents to decide whether it was an appropriate programme for young people to view. In the later segments, TV3 continued, there was no full frontal nudity as the women’s genitals were covered by a graphic of "a happy face".

As for the specific sequence Mr Harang referred to, TV3 stated that the women wore underwear and that the food fight was playful rather than sexual. It concluded that the item did not breach the standards.

In response to Mr Harang’s comment that the programme was sensational, rather than educational, TV3 wrote:

While it is clear that American Sex is an entertainment programme, not an educational one, this does not necessarily mean that the series should be banned from screening. TV3 took care in the screening of the series to ensure that it met its market (adults) and would not likely be inadvertently viewed by children. Care was taken to ensure that these adult viewers were amply warned about the nature of the show on screen and in advance publicity and promos. TV3 appraisers, programmers and committee members are all aware of BSA decisions. While we are aware that sexual nudity (such as shown at the beginning of Striptease) has previously been found to be inappropriate at 8.30pm, we are also aware that we censor cut the programme, put an accurate and non-sensational warning at the beginning, screened the show at 9.30pm and made sure it was part of an adult oriented line-up. This makes the screening of American Sex a somewhat different scenario to the one mentioned by Mr Harang.

In his final comment, Mr Harang pointed out that naked breasts were apparent in a number of segments, and he contended that the food fight involved sexual titillation. He repeated his argument that the Authority had upheld complaints about programmes involving sexual activity which were sensational and had no redeeming social or educational value.

Mr Harang maintained that the broadcast breached standard G2. He also commended TV3 for its efforts to ensure that children would not be watching and apologised for leaving the bulk of his arguments for the referral to the BSA, rather than including them in the complaint to the broadcaster.

The Authority’s Findings

The Authority first considers whether the programme breached standard G2. In doing so, it is obliged to take into account the context in which the broadcast complained about occurs. The context is relevant, but not decisive, to the Authority’s determination about whether the programme breached community standards of good taste and decency.

The contextual factors which the Authority considers relevant on this occasion include the time of the broadcast; the programme’s AO classification; the fact that a warning, which the Authority considers to be clear and explicit, preceded the programme; and the adult focus of the preceding programme.

Having regard to the context of the broadcast, the Authority now considers whether currently accepted norms of good taste and decency were breached by the American Sex programme complained about. The programme’s content was clearly aimed at adult viewers. Nevertheless, unlike similar programmes also broadcast at 9.30pm about which complaints have been upheld, Hollywood Sex 1999-232/233  and British Sex 2000-040), American Sex did not focus on genitalia and sexual practices.

Accordingly, a majority of the Authority concludes that on balance standard G2 was not contravened. The majority also observes that to find a breach of standard G2 would be to interpret the Broadcasting Act in such a way as to place too great a limit on the broadcaster’s statutory right to freedom of expression.

A minority of the Authority disagrees. In the minority’s view, the absence of explanation or commentary contributed to an impression that the material was gratuitous and voyeuristic, and that the primary purpose of the programme was titillation.

While programmes which are scheduled during AO time and which are classified AO are intended for adult audiences, broadcasters do not have licence to schedule programmes at this time which would be likely to offend the reasonable adult viewer. The minority considers that this programme was at the outer limit of what was acceptable on free to air television at any time, and it finds the programme’s content was too explicit to be screened at 9.30pm. In these circumstances, the minority finds that the programme breached standard G2.

The Authority now considers the complaints under standard G12. That standard requires broadcasters to be mindful of the effect of a programme on children during their normally accepted viewing times. The Authority observes that the programme commenced broadcast at 9.30pm. That time-slot allows the broadcast of programmes containing adult themes, or those which would be unsuitable for children under 18 years of age. In view of the fact that 9.30pm is not usually considered to be normally accepted viewing time for children, the Authority unanimously does not consider the standard to have been breached.

For the reasons given above, a majority of the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
14 June 2001

Appendix

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

1. Kristian Harang’s Formal Complaint to TV3 Network Services Ltd – 10 December 2000
2. TV3’s letter of acknowledgement to Mr Harang – 19 December 2000
3. Mr Harang’s Referral to the Broadcasting Standards Authority under s.8(1)(b) – 30 January 2001
4. Mr Harang’s Referral to the Authority under s.8(1)(a) containing TV3’s Response to the Complaint – 3 February 2001
5. Mr Harang’s letter to the Authority asking about progress on the Complaint – 7 March 2001
6. TV3’s Response to the Authority – 7 March 2001
7. Mr Harang’s Final Comment – 12 March 2001
8. Mr Harang’s Inquiry as to Progress – 20 April 2001