Henderson and MediaWorks TV Ltd - 2014-156
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Carol Henderson
ProgrammePromo for The Night Shift
BroadcasterMediaWorks TV Ltd
Channel/StationTV3 # 4
[This summary does not form part of the decision.]
A promo for The Night Shift briefly showing a male and female passionately kissing screened during Shrek Forever After, which was classified G. The Authority upheld the complaint that the promo breached the responsible programming and children's interests standards, as the promo contained sexual material more properly falling within the PGR classification. The Authority did not make any order.
Upheld: Responsible Programming, Children's Interests
 A promo for The Night Shift briefly showing a male and female passionately kissing screened during Shrek Forever After, which was classified G.1
 Carol Henderson complained that it was inappropriate to show this promo for an AO programme during a G-rated movie and that it would have distressed and embarrassed children.
 The issue is whether the broadcast breached the responsible programming and children's interests standards as set out in the Free-to-Air Television Code of Broadcasting Practice.
 The promo was broadcast on TV3 at approximately 8:09pm on 16 November 2014. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Did the promo breach broadcasting standards?
 The responsible programming standard (Standard 8) requires broadcasters to ensure that programmes are correctly classified and screened in the appropriate time-band. The children's interests standard (Standard 9) requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm. The purpose of the standard is to protect children from broadcasts which might adversely affect them.2
 The complainant argued that it was inappropriate to screen a promo for an AO programme during a G-rated movie, as she expected all promos would also be G-rated so parents 'do not have to be on guard with the remote control expecting their children to experience something inappropriate'. The complainant further argued that the 'highly sexualised' promo was distressing and embarrassing to children.
 MediaWorks argued that the promo was correctly rated G. It conceded that it depicted 'heightened adult passion'. However, it considered that it was at the 'low end of the scale' and as the shot in question was only two seconds long, the brevity significantly 'ameliorated its salaciousness'. MediaWorks argued that passionate kissing or similar material is not inherently inappropriate for broadcast during a children's programme, provided sufficient caution is exercised. It considered that the children's interests standard was targeted at content which disturbs or alarms children, rather than merely embarrasses them.
 Guideline 8b to the responsible programming standard allows broadcasters to promote AO programmes outside of AO time, so long as the promo is classified to comply with the host programme (the programme in which it screens). The promo for The Night Shift was classified G. Our task is to determine whether this classification was correct, or whether the promo warranted a higher classification. The G and PGR classifications are defined in Appendix 1 to the Code as follows:
G – General
Programmes which exclude material likely to be unsuitable for children. Programmes may not necessarily be designed for child viewers but should not contain material likely to alarm or distress them.
G programmes may be screened at any time.
PGR – Parental Guidance Recommended
Programmes containing material more suited for mature audiences but not necessarily unsuitable for child viewers when subject to the guidance of a parent or an adult.
PGR programmes may be screened between 9am and 4pm, and after 7pm until 6am.
 In our view, the material identified by the complainant exceeded the promo's G classification and more properly fit within the PGR definition, being 'material more suited for mature audiences but not necessarily unsuitable for child viewers' under adult supervision.
 We have previously ruled that kissing is not necessarily prohibited in G time, provided its presentation is at a level that is acceptable for children.3 This promo – depicting a male and female passionately kissing, and the female taking off the male's T-shirt – did not, in our view, present kissing at a level that was acceptable for children. The kissing was more explicit and 'adult' in nature than the kissing the subject of previous complaints that the Authority has declined to uphold. In the promo in question it was clearly implied that the couple were about to engage in sexual activity, confirmed by another character saying to the female, 'I know you're sleeping with TC' immediately afterwards.
 The broadcaster has accepted that the material in the promo depicted 'heightened adult passion'. We do not see this notion as being consistent with the G classification, which requires the exclusion of 'material likely to be unsuitable for children'. Parents and caregivers are entitled to rely on a programme's classification, and should reasonably have expected that they did not need to supervise child viewers during the G-rated Shrek Forever After. We agree with the broadcaster that what was shown was at the relatively low end of the scale of sexual material and that to some extent its impact was mitigated by its brevity. Nevertheless, we consider it would have been more suitable for children when subject to the guidance of a parent or an adult. We have accordingly determined that if this promo was to be broadcast it ought to have been within the environment of a PGR classification.
 It will usually follow that by failing to correctly classify a programme and appropriately schedule it in accordance with the responsible programming standard, the broadcaster has also failed to adequately consider children's interests. This is because the same contextual factors are considered (such as the time of broadcast, the programme's classification, the use of warnings, if any and the target and likely audience), and also because of the potential impact on child viewers and parents' ability to exercise discretion. Our reasoning in relation to Standard 8 equally applies to children's interests, and accordingly we also find that the broadcaster did not satisfy its obligations under Standard 9. An adequate consideration of the interests of child viewers ought to have led to a decision by the broadcaster not to broadcast the promo in a viewing environment which was G-rated.
 In considering whether to uphold this complaint we have taken account of the broadcaster's right to freedom of expression. We are satisfied that upholding the complaint would not unreasonably restrict this right, as we are only suggesting that a different classification should have been attached to the promo. We are not suggesting that the promo should not have been shown at all. On the contrary, the standards allow this promo to be shown, but only if correctly classified and screened in the appropriate time-band.
 We therefore uphold the complaint under Standards 8 and 9.
For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks TV Ltd of a promo for The Night Shift on 16 November 2014 breached Standards 8 and 9 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. This was a relatively minor breach and our decision clarifies our expectations of promos screened during G-rated programmes aimed at children. Publication of our decision is sufficient in the circumstances.
Signed for and on behalf of the Authority
16 April 2015
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Carol Henderson's formal complaint – 16 November 2014
2 MediaWorks' response to the complaint – 15 December 2014
3 Ms Henderson's referral to the Authority – 16 December 2014
4 MediaWorks' response to the Authority – 3 February 2015
1Both the complainant and the broadcaster referred to the host programme as Shrek the Third, but we have confirmed that the promo was in fact broadcast during Shrek Forever After.
2E.g. Harrison and Television New Zealand Ltd, Decision No. 2008-066
3See, for example, Ibousi and TVWorks Ltd, Decision No. 2010-091, where the Authority considered a complaint about Wizards of Waverley Place (rated G), finding the programme presented a teenage character’s anxiety about his first kiss in a ‘humorous and innocent manner’, and that a scene which showed him kissing his girlfriend was ‘extremely brief and tame in nature’. Also see Hindson and Television New Zealand, Decision No. 2013-049 in relation to a promo for Go Girls screened during G-rated Masterchef which depicted two men sharing a brief and innocuous kiss.