Hind and Television New Zealand Ltd - 2004-200
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Peter Hind
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1)(a) of the Broadcasting Act 1989
Flipside – findings of a global survey examining sexual behaviour - frequency of sexual intercourse in various countries – allegedly in breach of good taste and decency and children’s interests
Standard 1 (good taste and decency) – delivered in the context of a serious message – not presented in a salacious manner – not upheld
Standard 9 (children’s interests) – targeted at teenage audience – unlikely to appeal to younger viewers – not upheld
This headnote does not form part of the decision.
 An episode of Flipside screened on TV2 at 5pm on 13 October 2004. Flipside is a programme targeted at a teenage audience and discusses issues of relevance to youth. An item introduced the findings of the 2004 Durex Global Sex Survey which examined sexual behaviour in various countries.
 The presenter gave a series of statistics from the survey including the frequency of sexual intercourse in a variety of countries, and who had been voted the sexiest man and woman of the year. He went on to say:
Most statistics uncovered by the survey might seem like a bit of sexual “fluff”, but some statistics have raised more than an eyebrow.
 The item went on to discuss the awareness of HIV and the prevalence of unsafe sex in New Zealand, followed by comments from a representative of the New Zealand Aids Foundation.
 Peter Hind complained to Television New Zealand Ltd, the broadcaster, that the item should not have been broadcast at that time and during a programme that is aimed at children. He said:
TVNZ obviously believes that an item dealing with the frequency of sexual intercourse does not breach standards of good taste and decency, is entirely appropriate for children, whether pre-school or primary school, and that all such children should have been removed from television-watching by 5pm and sent to bed.
 TVNZ assessed the complaint under Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice, which provide:
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.
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.
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.
Broadcaster's Response to the Complainant
 In its response to the complainant, TVNZ advised that Flipside is transparently aimed at teenagers and attempts to discuss youth issues in terms and language that appeal to that audience. The programme does not, it said, contain material which is likely to appeal to those who the complainant described as pre-school or primary school children.
 The broadcaster outlined the programming schedule on TV2 as a progression from material aimed at the very young, through to programmes directed at teenagers. The latter group of programmes, it said, included not only Flipside but Neighbours and Friends.
 TVNZ said that the programme had shown a number of items about teenage pregnancy and sexually transmitted diseases in recognition of the fact that these are issues of major importance to its target audience. It noted that the style of Flipside might appear startling to older generations who might wish to “cling to the notion” that teenagers are too young to be introduced to such issues.
 The broadcaster felt that, in emphasising the survey’s findings about the frequency of sexual intercourse, the complainant had overlooked the fact that this information was included “as a method of drawing the attention of teenagers to the more serious sexual advice the item was trying to deliver”. It said:
Like other branches of the media Flipside covered what the reporter described as the “fluff” in the survey as a way of introducing the message about the risks of unprotected sex. The [complaints] committee noted that the item included comments from Rachel Le Mesurier of the Aids Foundation who pitched her remarks specifically at the young teenagers who make up the bulk of Flipside’s audience.
 TVNZ could not accept that an item “delivering such a stern warning to the vulnerable audience watching” could be considered a breach of Standard 1 (good taste and decency). In the context of a programme aimed at teenagers, it said, a “safe sex message like this one” did not appear to stray outside current norms of good taste and decency. Furthermore, TVNZ added that:
Broadcasters would be failing in their duty to the community if they did not seize opportunities when they arise to highlight the risks of HIV – especially when the audience is of an age where sexual experimentation is possible or likely.
 Referring to Standard 9 (children’s interests), the broadcaster did not consider that the item was unsuitable for inclusion in a programme aimed at teenage audiences. It argued that the item would have “made no sense to a youngster not yet aware of sexual behaviour” and that it provided a valuable message to those that are. TVNZ was satisfied that no breach of the Free-to-Air Television Code of Broadcasting Practice had occurred.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr Hind referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He categorised TVNZ’s response to him as “inaccurate, evasive and deliberately patronising and provocative in tone”.
 Referring to Standard 1 (good taste and decency), Mr Hind considered that the standard had been breached in terms of the time of the broadcast, the target audience and the use of warnings. He said that he was previously of the opinion that programmes broadcast until 6pm would be child-friendly, and had allowed his seven year old daughter to watch television past 5pm.
 The complainant did not agree with TVNZ’s assertion that there was a progression in TV2’s programming from material aimed at the very young through to programmes directed at teenagers. He said:
To follow SpongeBob Squarepants and Freaky, which appeal to 7 and 8 year olds as much as primary aged children, with Flipside, which presented a news item detailing statistics about the frequency of sexual intercourse, demonstrates that no such gentle progression is made. I consider that there is a significant leap in programming between those programmes prior to 5pm and Flipside at 5pm.
 Mr Hind thought that Flipside ought to be scheduled at a later and more appropriate time when it could be separated from children’s programmes by material that demonstrates “the progression in programming that TVNZ claims”. He also asked whether there are clearly stated warnings anywhere which would make parents aware that children’s viewing ends at 5pm.
 The complainant said that TVNZ had attempted to “seize the moral high ground by stating that the item was part of a serious message about Aids and the importance of safe sex”. He was not aware of any preamble to the item which would suggest that it was “anything other than a stand-alone piece of “fluff” (TVNZ’s term)”. Mr Hind contended that the sole purpose of the item was to titillate.
 Furthermore, Mr Hind did not consider whether or not the item was part of a serious safe sex message was relevant to his complaint. His complaint centred on the item, the time of broadcast and the fact that it did not reflect the interests of child viewers, he said. The complainant said that TVNZ had wholly ignored the content of the item concerned, and did not refer to the mode or manner of presentation in its response.
 Turning to Standard 9 (children’s interests), the complainant considered TVNZ’s assertion that the item would not have made sense to those children not aware of sexual behaviour. Mr Hind suggested that there would be children under the age of 14 who were aware of sexual behaviour “but that does not mean that this item would have been appropriate viewing for them”. He argued that:
There are clearly accepted notions about the suitability of television programmes in terms of their content and the times they are broadcast. Why else are programmes categorised as G or PGR or AO or preceded by the use of warnings? Following TVNZ’s logic a programme that dealt with sexual matters could be shown at any time because children not aware of sexual behaviour would not understand it.
 Mr Hind was offended by TVNZ’s suggestion that he might wish to “cling to the notion” that teenagers were too young to be introduced to such material. In fact, he said, he was “startled only by the fact that TVNZ broadcasts a country by country comparison of the frequency of sexual intercourse at a time that I believe my 7 year old should be able to watch child-friendly television”.
 The complainant suggested that TVNZ was out of touch with what most New Zealand families would regard as “children’s normally accepted viewing times” (Standard 9). He expressed concern at the limited time in which children could now watch television compared to the amount of programming targeted at slightly older viewers.
Broadcaster’s Response to the Authority
 In its response to the Authority, TVNZ stressed that the Flipside programme deliberately attempted not to “talk down” to young people, and to present current issues in a style and in language likely to appeal to younger viewers. It reminded the Authority that two decades ago a programme called The Video Despatch was screening in an even earlier timeslot, and this programme had also tackled issues “in a style suited to the generation then growing up”.
 While it was conscious of the United Nations Convention on the Rights of the Child, TVNZ said that it did not believe that “children and young people should be cosseted from the reality of current social issues”. The broadcaster referred to Article 13 of the Convention which states that children shall have the right and freedom “to seek, receive and impart information and ideas of all kinds”. It stated that Flipside had tried to achieve this in its many issue stories.
Complainant’s Final Comment
 In his final comment to the Authority, Mr Hind asserted that TVNZ had failed to address the specific item to which he took exception – that being the item about “the frequency of sexual intercourse on a country by country basis”. When the broadcaster referred to approaching current issues in a style likely to appeal to younger viewers, it seemed to be referring to the item about Aids which was not the subject of his complaint, he said, adding:
It would be stretching things to consider the item about the frequency of sexual intercourse and call it a “current issue”!
 Furthermore, Mr Hind alleged that TVNZ had directly contradicted its central argument by referring to the United Nations Convention on the Rights of the Child. While it had taken “great pains to point out how wrong I was to state that Flipside…was aimed at children”, it had then quoted from the Convention in support of its argument.
 Mr Hind expressed surprise that TVNZ had not taken the opportunity to address issues raised by him with regard to its assertion about using items of “fluff” to draw the audience into more serious issues. The broadcaster had not given any examples of this practice, he said.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The Authority notes the complainant’s concern that the survey findings were “a stand-alone piece of ‘fluff’” unrelated to the discussion about Aids and unprotected sex. However, having viewed the item, the Authority is satisfied that the information about the frequency of sexual intercourse in various countries was used as an introduction to the more serious part of the story. The Authority also accepts that this is a technique commonly used in television news.
 When it determines a complaint that a broadcast contravenes Standard 1, 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 Authority observes that Flipside was broadcast at 5pm immediately following two children’s cartoons. However, it also notes that the programme was a news and current affairs programme which, although broadcast during the G time band, was unclassified in accordance with the Codes of Broadcasting Practice.
 Turning to other relevant contextual factors, the Authority notes that the programme was aimed primarily at a teenage audience and that it would not appeal to many children younger than the target audience given its news and current affairs format. Further, the language and pictures used in the item complained about were not at all shocking or gratuitous. Accordingly, the Authority considers that the information was not presented salaciously.
 The Authority does not agree with the complainant’s view that the item was merely “titillating”. While the reporter’s “fluff” comment pointed out that such statistics should not be taken too seriously, the Authority finds that the information would have been of interest to viewers while including an educational message.
 The Authority acknowledges the complainant’s concern that there is a need for better consumer information about the nature and target audience of such “teen” programmes. However, taking into account the relevant contextual factors outlined above, the Authority considers that it was not outside the bounds of good taste and decency to discuss the frequency of sexual intercourse in the context of a “safe-sex” message in a teenage news format programme broadcast at 5pm. The complaint under Standard 1 is not upheld.
 Turning to consider Standard 9 (children’s interests), the Authority observes that the programme was broadcast during children’s normally accepted viewing times. However, it also notes that programmes broadcast during this time do not have to be targeted at the youngest audience.
 On this occasion a majority of the Authority considers that sufficient consideration was given to the interests of child viewers. While younger viewers, if any, may have asked questions about the information given, the Authority considers that the overall message was essentially educational and was presented in a restrained and non-salacious manner. When the programme’s target audience is considered, and the likelihood that younger viewers would not find the Flipside format appealing, the result is that a majority of the Authority does not find any breach of Standard 9.
 A minority, Tapu Misa, disagrees with the Standard 9 ruling. She agrees with the complainant that the subject matter and presentation of the item made it unsuitable for child viewers, given that it included inter-country comparisons of the frequency of sexual intercourse, the rate of orgasms and the ages at which virginity was lost, as well as some visuals of a sexual nature which she considered inappropriate.
 The minority considers that while Flipside may have been targeted at teenagers, the fact that it screened at 5pm, during children’s normally accepted viewing time, and that it was immediately preceded by cartoon programmes popular with younger viewers, meant there was a high likelihood that young children would have been among its viewers.
 The minority notes that the requirement for broadcasters to be mindful of children during their normally accepted viewing times applies whether or not the programme can be classified as a news or current affairs programme, and is arguably heightened for a programme which was simply promoted as being “a young interactive slant on the news”. Accordingly, the minority concludes that insufficient consideration was given to children’s interests, in breach of Standard 9.
For the above reasons the Authority does not uphold the complaint
Signed for and on behalf of the Authority
24 February 2005
The following correspondence was received and considered by the Authority when it determined this complaint:
- Peter Hind’s formal complaint – 13 October 2004
- TVNZ’s decision on the formal complaint – 28 October 2004
- Mr Hind’s referral to the Authority – 12 November 2004
- TVNZ’s response to the Authority – 3 December 2004
- Mr Hind’s final comment – 22 December 2004