Henderson and CanWest TVWorks Ltd - 2004-173
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Matthew Henderson
ProgrammeSex and the City promos
BroadcasterCanWest TVWorks Ltd
Channel/StationTV3 # 2
Sex and the City – two promos shown on TV3 – promo one showed marijuana use – broadcast at 1.20pm on Saturday – promo two showed couple apparently engaged in sexual intercourse – broadcast at 1.00pm on Friday – both allegedly breached standards relating to good taste and decency, maintenance of law and order, classification and children’s interests.
Findings – promo one on 31 July
Standard 1 (good taste and decency) and Guidelines 1a and 1b – context – not upheld
Standard 2 (maintenance of law and order) and Guideline 2e – marijuana use portrayed as illegal and not glamorised – not upheld
Standard 7 (classification) and Guideline 7b – PGR classification appropriate – not upheld Standard 9 (children’s interests) and Guideline 9a – PGR classification – not upheld
Findings – promo two on 6 August
Standard 1 (good taste and decency) and Guidelines 1a and 1b – context – not upheld
Standard 7 (classification) and Guideline 7b – promo contained adult themes – inappropriately classified as PGR – upheld
Standard 9 (children’s interests) and Guideline 9a – broadcast in AO time – not upheld
This headnote does not form part of the decision.
 Promos for the series Sex and the City were broadcast on TV3. Promo one was screened at 1.21pm on Saturday 31 July 2004 during the PGR rated comedy Grounded for Life. Promo two was screened at 12.56pm on Friday 6 August during a PGR rated episode of the talk show, Dr Phil.
 Promo one included the comment “Let’s get high”, followed by one of the characters apparently smoking marijuana. Promo two included a brief scene of vigorous sexual intercourse, and subsequent sexual banter.
 Matthew Henderson complained to CanWest TVWorks Ltd, the broadcaster, that the promos should not have been broadcast outside of the AO timeband. In regard to the promo featuring marijuana use, he said that the portrayal of an illegal activity as glamorous was “extremely irresponsible”. He considered that it was inappropriate to promote the series when children might be watching.
 The broadcaster assessed the complaints under the standards and guidelines in the Free-to-Air Television Code of broadcasting Practice nominated by the complainant. They read:
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.Guidelines
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. The examples are not exhaustive.
1b Broadcasters should consider – and if appropriate require – the use of on-air visual and verbal warnings when programmes contain violent material, material of a sexual nature, coarse language or other content likely to disturb children or offend a significant number of adult viewers. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.
Standard 2 Law and Order
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.Guideline
2e The realistic portrayal of anti-social behaviour, including violent and serious crime and the abuse of liquor and drugs, should not be shown in a way that glamorises these activities.
Standard 7 Programme ClassificationBroadcasters are responsible for ensuring that programmes are appropriately classified and adequately display programme classification information, and that time-bands are adhered to.
7b Broadcasters should ensure that all promos (including promos for news and current affairs) comply in content with the classification band in which they are shown. For example, promos for AO programmes shown outside Adults Only time must conform in content with the classification of the time-band in which they are broadcast.
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.
9a Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material which would disturb or alarm them.
Broadcaster's Response to the Complainant
 The broadcaster advised that each promo had been rated PGR, and had been screened during PGR rated programmes.
 With regard to the complaints under Standard 1 (good taste and decency), the broadcaster noted that context had to be taken into account when determining whether the standard had been contravened. It described the following contextual matters as relevant to its decision not to uphold the good taste and decency aspects in regard to each promo:
- the PGR rating of the promos
- the audience expectation of the programmes, given their content, during which the promo was screened
- it was obvious in the first promo that marijuana smoking was illegal
- the first promo was screened during a programme which was dealing with drug use in a responsible way
- the sex scene in the second promo, while energetic, was brief and was not graphic
- the second promo screened during the AO time band.
 Turning to Standard 2 (law and order), the broadcaster contended that the “rash” suggestion made in promo one “to get high” resulted in apparent apprehension by the police. Further, it wrote, the more mature audience who viewed the PGR rated promo would understand that the character’s actions might have unwanted consequences. It declined to uphold that aspect.
 The broadcaster argued that the PGR rated promos were screened in appropriate time slots and Standard 7 (classification) had not been transgressed.
 It reached the same decision in regard to Standard 9 (children’s interests) as the child viewers had been taken into account when the promos had been assigned a PGR rating.
Referral to the Authority
 Dissatisfied with the broadcaster’s decision, Mr Henderson made the following five points when he referred the complaints to the Authority:
- Because of the activities shown in the promos, they should have been rated AO.
- The issues involving sexual infidelity which were being discussed in Dr Phil were not related to the portrayal of sexual activity contained in the promo.
- Grounded for Life, Mr Henderson observed, did not deal with the actual use of drugs. However, that was the activity depicted in the promo for Sex and the City .
- Material showing sexual activity and drug use, he argued, should have been preceded with a warning.
- Mr Henderson maintained that the promo showing drug use had glamorised the activity. He noted that the actor, and her character, had a high profile and had been held up as role models. Viewers, he contended, would have had little sympathy for the police officer enforcing the law.
Broadcaster’s Response to the Authority
 The broadcaster had nothing further to add.
 The members of the Authority have viewed a tape of the broadcasts complained about and have read the correspondence listed in the Appendix. The Authority determines the complaints without a formal hearing.
 Both complaints deal with promos for Sex and the City . While each complaint raised similar standards, they were different promos. Moreover, they were broadcast at different times. Accordingly, the Authority intends to assess each one separately.
Promo one: 1.21pm on Saturday 31 July showing marijuana use
 When the Authority determines a complaint that a broadcast contravenes Standard 1 (good taste and decency), it 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. On this occasion, the Authority regards the following matters, nominated by TV3, as relevant to its determination:
- the PGR rating of the promo
- the audience expectation of the comedy, Grounded for Life, during which the promo was screened
- that it was obvious that marijuana smoking was illegal and carried punitive consequences as the character smoking showed alarm and apprehension as she was approached by a police office, and subsequently arrested.
 Giving particular emphasis to the last point – the obvious illegality of the behaviour portrayed and the punitive consequences if caught – together with the Authority’s view that the activity was not glamorised, the Authority concludes that the broadcast of the promo did not breach Standard 1.
 When considering the Standard 7 (classification) aspect of the complaint, the Authority is required to assess whether the PGR rating conferred on the promo by TV3 was appropriate. Appendix 1 of the Television Code states that a programme with a G rating must not contain material that is likely to alarm or distress children, while a programme with an adult theme must be rated AO. The PGR rating provides:
Programmes containing material more suited for mature audiences but not necessarily unsuitable for child viewers when subject to the guidance of a parent or adult.
 As the brief portrayal of marijuana smoking did not glamorise the activity and, indeed, pointed to its illegality, the Authority accepts that it was suitable for viewing by supervised children and was thus appropriately rated PGR. Standard 7, the Authority decides, was not contravened.
 The Authority reaches the same decision in regard to the Standard 2 (law and order) and Standard 9 (children’s interests) aspects of the complaint. The promo which did not glamorise the use of marijuana, was appropriately rated PGR, and was broadcast during the PGR time slot.
 The Authority does not uphold any aspects of the complaint in regard to broadcast of promo one.
Promo two: 12.56pm on Friday 6 August showing apparent sexual intercourse
 The Authority considers first the Standard 7 (classification) aspect of the complaint, and concludes that the PGR rating was inappropriate. It believes that the promo should have been rated AO and, accordingly, upholds this aspect of the complaint. It reaches this conclusion taking into account both the nature of promos generally and the content of the specific promo.
 Promos usually include a dramatic part of the programme being promoted and the material is taken out of the context in which it appears in the programme. As a result, the excerpt used in a promo may have more of an impact on viewers than it would in the full programme. Furthermore, a promo is screened without warning or advance notice as to its content. On this occasion, the promo included a brief scene of apparent sexual intercourse entailing vigorous action by the man, following which the woman exhibited apparent difficulty walking. This in turn was followed by sexual banter between the woman and another man, who commented “Good for you!”, to which the woman replied, “No, it wasn’t good for me”. Finally, her sexual partner was seen denouncing her across a crowded room, shouting “you used me for sex.”
 The Authority considers that the cumulative effect of sexual activity followed by sexualised discussion constitutes an adult theme. As promos containing an adult theme must be rated AO under the Code, the Authority finds that the promo was inappropriately rated PGR. This aspect of the complaint is upheld.
 Although it upholds the Standard 7 aspect of the complaint, the Authority notes that the promo was broadcast during the AO time band. AO programmes may be screened between midday and 3.00pm on weekdays (except during school and public holidays) and after 8.30pm until 5.00am.
 In view of the time band during which the promo was screened on this occasion, the Authority considers that the broadcast did not breach Standard 1 (good taste and decency).
 The Authority does not uphold the complaint under Standard 9 (children’s interests). The midday to 3.00pm weekday time band is not a normally accepted viewing time for children in terms of the standard.
 Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. The Authority does not intend to impose an order on this occasion. While it has upheld the complaint that the promo was not appropriately classified in that it should have been rated AO rather than PGR, it notes that the promo was in fact screened during the AO time band. Further, there were no other breaches of the standards and, the Authority concludes, an order is not appropriate on this occasion.
 For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and has taken into account all the circumstances of the complaints in reaching its determination to uphold one aspect of the complaints and not to impose an order. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.
For the above reasons, the Authority upholds the complaint that a promo for Sex and the City broadcast on TV3 at 12.56pm on Friday 6 August 2004 by CanWest TVWorks Ltd breached Standard 7 of the Free-to-Air Television Code of Broadcasting Practice.
It declines to uphold any other aspect of the complaints.
Signed for and on behalf of the Authority
21 December 2004
The following correspondence was received and considered by the Authority when it determined this complaint:
- Matthew Henderson’s Complaint to CanWest TVWorks Ltd – 6 August 2004
- CanWest TVWorks’ Response to the Formal Complaint – 13 September 2004
- Mr Henderson’s Referral to the Broadcasting Standards Authority – 22 September 2004
- CanWest TVWorks’ Response to the Authority – 12 November 2004