BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

An appeal against this decision was dismissed in the High Court: AP 138/01  PDF1.09 MB

---

Complaint
Banzai – comedy – sketch included shot of man’s naked penis – bad taste

Findings
Standard G2 – borderline – context – no uphold

This headnote does not form part of the decision.

Summary

[1] An episode of Banzai, a British comedy series, was broadcast on TV2 at 10.10pm on 14 August 2001.

[2] Michael Hooker complained to Television New Zealand Ltd, the broadcaster, about a shot of a man’s naked penis which was included in the broadcast, and which he considered to be "well outside the currently accepted norms of taste and decency, given the context in which the scene was shown".

[3] TVNZ declined to uphold the complaint, maintaining that the material was acceptable in the context of the sketch, and in the wider context of Banzai’s programme type, AO classification, pre-broadcast and mid-broadcast warnings, hour of broadcast and target audience expectations.

[4] Dissatisfied with TVNZ’s decision, Mr Hooker referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given, the Authority declines to uphold the complaint.

Decision

[5] The members of the Authority have viewed a tape of the programme complained about and have read the correspondence listed in the Appendix. The Authority determines this complaint without a formal hearing.

The Programme

[6] An episode of Banzai, a British comedy series, was broadcast on TV2 at 10.10pm on 14 August 2001. According to TVNZ:

Banzai represents a new generation of British comedy shows. It is made by Channel 4 with a young adult audience in mind and represents a significant departure from the more orthodox forms of television comedy.

The Complaint

[7] Michael Hooker complained to TVNZ about a shot of a man’s naked penis which was included in the broadcast, and which he considered to be "well outside the currently accepted norms of taste and decency, given the context in which the scene was shown". In support of his complaint, Mr Hooker referred to the Authority’s research findings and to a previous upheld decision of the Authority (Decision No: 1999-234).

The Standards

[8] TVNZ considered Mr Hooker’s complaint in the context of standard G2 of the Television Code of Broadcasting Practice, which requires 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.

TVNZ’s Response to the Complaint

[9] TVNZ declined to uphold the complaint, maintaining that the material was acceptable in the context of the sketch, and in the wider context of Banzai’s programme type, AO classification, pre-broadcast and mid-broadcast warnings, hour of broadcast and target audience expectations.

[10] TVNZ said that it considered the penis shot in the context of an "avant-garde comedy series". It commented that material complained about was a "single, relatively static shot", and it was broadcast at "an appropriate time to show humour of an experimental or ground-breaking nature". TVNZ then explained that the programme carried an AO classification certificate and a warning about two potentially offensive scenes. The warning and classification symbol were screened before the broadcast and after each commercial break.

[11] TVNZ also noted that Banzai was screened at a time "when a largely young adult audience would normally be watching Havoc". (Banzai had, on this occasion, been screened at short notice as a replacement for an episode of Havoc which was not screened because of a production problem). TVNZ commented:

Banzai is directed at the same age group, a generation which tends toward the anarchic and the rebellious and which shows particular interest in television programmes which explore new territory.

[12] TVNZ then challenged the relevance of the research findings and the decision which Mr Hooker had referred to in his complaint. In relation to the decision, TVNZ said:

Banzai did not involve sex and in the context of the culmination of a joke the scene showing the penis was not gratuitous.

Mr Hooker’s Referral to the Authority

[13] In his referral to the Authority, Mr Hooker submitted:

• the acceptability of the material he complained about was "totally unaffected by whether or not the comedy was experimental"
• although "the camera angle was reasonably static and the duration was reasonably short", the scene was "extremely graphic"
• the joke "would have been no less effective if the penis had not been shown and as such was shown solely to titillate"
• TVNZ’s claim that "only a particular class of [young adult] viewers were confronted by the genitalia must be treated cautiously", as:-
          the prevalence of remote controls and the propensity of viewers to surf the channels,
          particularly during ad breaks, [means that] the category of viewers of any given channel at
          any given time is extremely fluid
• "when assessing material under standard G2 the expectations of the audience should not be taken into account", as this would elevate "the rights of a minority… above the rights of all New Zealanders"

TVNZ’s Response to the Authority

[14] TVNZ disagreed with Mr Hooker’s assertion that the joke "would have been no less effective if the penis had not been shown". It considered that in the context of the programme, "the joke would have been virtually impossible without the penis being shown".

The Authority’s Determination

[15] The Authority’s task in assessing this complaint under standard G2 is to determine whether the material complained about breached currently accepted norms of good taste and decency, in the context in which it occurred. The context is relevant, but not decisive, to the Authority’s determination of whether the programme breached standards of good taste and decency.

[16] The Authority considers that the relevant contextual factors include the fact that the broadcast was a comedy programme aimed at a young adult audience, which was screened at 10.10pm during AO time and was accompanied by warnings both before and during the broadcast. The Authority also considers it relevant that the material about which Mr Hooker complained was a single, and relatively brief, static shot.

[17] The Authority notes that the image of a naked penis which was screened was not something that viewers would normally expect to be confronted with, and was at the outer limits of acceptability for broadcast on free-to-air television at any time. However, taking into account the contextual matters referred to in the above paragraph, the Authority concludes that standard G2 was not breached.

[18] The Authority observes that to find a breach of standard G2 would be to interpret the Broadcasting Act 1989 in such a way as to place too great a limit on the broadcaster’s statutory freedom of expression enshrined in s14 of the New Zealand Bill of Rights Act 1990. It prefers to adopt an interpretation of the standard which is consistent with the Bill of Rights.

For the above reasons, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
22 November 2001

Appendix

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

1. Michael Hooker’s Formal Complaint to Television New Zealand Ltd – 25 August 2001
2. TVNZ’s Response to the Formal Complaint – 10 September 2001
3. Mr Hooker’s Referral to the Broadcasting Standards Authority – 22 September 2001
4. TVNZ’s Response to the Authority – 3 October 2001
5. Mr Hooker’s Final Comment – 15 October 2001