BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Special Victims Unit and Crime Scene Investigation – promo – reference to oral sex – during That ‘70s Show – 7.50pm – inappropriate comment at that time

Findings
Standard 7 and Guideline 7b – majority classification of Special Victims Unit promo correct – no uphold; minority – adult theme – should be AO; classification of Crime Scene Investigation promo as PGR correct – no uphold

Standard 9 and Guidelines 9b and 9e – subsumed under Standard 7

Standard 10 and Guideline 10c – violence appropriately classified – no uphold

Standard 1 and Guidelines 1a and 1b – context – no uphold

This headnote does not form part of the decision.

Summary

[1] "Since when is oral sex not sex? Since Bill Clinton said so". This exchange in an office setting was used in a promo for Special Victims Unit, and was broadcast by TV3 at 7.50pm on Monday 2 December 2002 during That ‘70s Show. The promo was followed by one for Crime Scene Investigation.

[2] Dr Hunter complained to TV3 Network Services Ltd, the broadcaster, that a reference to oral sex at that hour was gratuitous, offensive and inappropriate. He argued that the promo should have been rated AO.

[3] In response, TV3 contended that the brief promo, delivered in a matter-of-fact style, was appropriately classified as PGR. It declined to uphold any aspect of the complaint.

[4] Dissatisfied with TV3’s decision, Dr Hunter referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

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

Decision

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

The Programme

[6] A promo for Special Victims Unit and Crime Scene Investigation was broadcast on TV3 at 7.50pm on 2 December 2002 during That ’70s Show. TV3 described the That ’70s Show as a "hip" comedy focusing on a group of friends verging on young adulthood. The show is rated PGR.

[7] The promo complained about, also rated PGR, contained extracts from Special Victims Unit and Crime Scene Investigation both classified as AO. The footage from Special Victims Unit included the dialogue:

Since when is oral sex not sex?

Since Bill Clinton said so.

The Complaint

[8] Dr Hunter complained to TV3 that the promo contained inappropriate content and was not suitable for broadcast during That’70s Show, which he described as a family comedy.

[9] Dr Hunter considered that the promo was wrongly classified and in breach of Guideline 7b of the Free-to-Air Television Code of Broadcasting Practice. The reference to oral sex, he said, was inappropriate for children, and likely to be offensive, confusing, potentially disgusting, and in breach of Guideline 9b. Guidelines 9c and 10c were contravened as the material was gratuitous and lacked context. A warning should have been included as required by Guideline 1b, he continued, and community standards were transgressed under Guideline 1a.

[10] Dr Hunter questioned TV3’s ability to self-regulate its promotional material and sought an apology. He also asked that TV3 make funds available for counselling his children if issues arose regarding premature sexualization. In addition, he asked for a signal which would allow parents to exclude advertising material from television broadcasts.

[11] In making his complaint, Dr Hunter questioned TV3’s approach to the formal complaints process, and suggested that TV3 had been trying to frustrate the process.

The Standards

[12] TV3 assessed the complaint under the Guidelines nominated by Dr Hunter. The Standards, and relevant Guidelines, 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 (see Appendix 1). 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 7 Programme Classification

Broadcasters are responsible for ensuring that programmes are appropriately classified and adequately display programme classification information, and that time-bands are adhered to.

Guideline

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(see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

Guidelines

9b  When scheduling AO material to commence at 8.30pm, broadcasters should exercise discretion to ensure that the content which led to the AO rating is not shown soon after the watershed.

9c  Broadcasters should have regard to the fact that children tend to stay up later than usual on Friday and Saturday nights and during school and public holidays and, accordingly, special attention should be given to providing appropriate warnings during these periods.

Standard 10 Violence

In the preparation and presentation of programmes, broadcasters are required to exercise care and discretion when dealing with the issue of violence.

Guideline

10c  When compiling promos (trailers), broadcasters should be mindful that scenes containing incidents of violence or other explicit material which may be acceptable when seen in the total context of a programme may, when extracted and shown out of context for promotional purposes, be unacceptable in terms of both the standards and the time-band in question.

The Broadcaster’s Response to the Complainant

[13] TV3 apologised to Dr Hunter that its correspondence had given him the impression that it wished to frustrate the complaints process. It explained that its process was designed to meet both the requirements in the Broadcasting Act 1989 and to obtain sufficient information to allow a complaint to be investigated fully by its Standards Committee.

[14] It dealt with the complaint under the standards in the order nominated by Dr Hunter. With regard to the PGR classification of the promo, TV3 contended that the comment about oral sex was a brief, matter-of-fact, verbal reference that was not elaborated upon in any way. It also observed that That ‘70s Show occasionally contained discussions about sex. Although it accepted that 7.50pm was children’s normally accepted viewing time, on the basis that the PGR classification allowed "material more suited for adult audiences" but not unsuitable for child viewers "when subject to the guidance of a parent", TV3 declined to uphold the classification aspect of the complaint.

[15] As its Promo Scheduler was required to consider the interests of children when classifying promos, TV3 contended that it had met the requirements in Standard 9. As the promo had been appropriately classified, TV3 did not consider that Guideline 9b was applicable. It reached the same decision concerning Guideline 9c as it did not regard the reference to oral sex as gratuitous or out of context.

[16] TV3 did not regard Standard 10 or Guideline 10c as having been contravened as the promo in context was neither sexually explicit nor inappropriate for the PGR time bands.

[17] Turning to the good taste and decency requirement in Standard 1, TV3 maintained that the reference to oral sex did not contravene community standards. It observed that the relationship between Bill Clinton and Monica Lewinsky, including the detail about the sperm left on her dresses, was well known and had been included in news items broadcast in G time. It did not consider a warning had been necessary.

[18] TV3 declined to uphold any aspect of the complaint.

The Referral to the Broadcasting Standards Authority

[19] Dr Hunter sought a review of TV3’s findings on the basis that the findings were "self-serving" and "dangerous to the mental well-being of my children and other children watching the promotion". He asked the Authority to view the promo and consider the full wording.

[20] Dr Hunter disagreed that the PGR classification should include references to oral sex. He wrote:

My understanding is that PGR could contain references to normal sexual development and should be suitable for teenagers. While I concur that oral sex may be considered to be a normal sexual variation that it is not universally accepted as such and that in development of sexuality there should be expressed sexuality within contexts of supportive emotional relationships with development of normal basic human sexuality. There should be credence given to potential problems arising from unsound relationships and sexual practices. The development of more "adult" sexual themes is appropriate to AO classification. Oral sex could be seen as abhorrent and disturbing to young minds trying to sort out their own sexuality. This is premature sexualization of children and is a serious form of abuse of young minds.

[21] He did not accept that the brevity of the promo was an excuse for offensiveness. He expressed his appreciation for the classifications attached to programmes generally as they assisted him in deciding which programmes his children were allowed to watch, but again did not accept that a promo which included a reference to oral sex justified a PGR rating.

[22] When considering the specific standards under which TV3 had assessed the complaint, Dr Hunter reiterated his contention about the correct rating for the promo. He also considered that TV3, when it referred to the "freedom of expression", failed to acknowledge any responsibility to his children. Referring to the "epic effort" required to make a complaint, Dr Hunter considered that an apology would be insufficient as he sought the "maximum punishment available".

The Broadcaster’s Response to the Authority

[23] TV3 explained that the dialogue (para [7]) was the total dialogue contained in the promo. Pointing out that it took seriously its responsibilities to comply with standards, TV3 wrote:

The [Standards] Committee holds to its view that the reference in the promo – brief, unelaborated or explained and unsurprising in the context of That ‘70s Show – was not in breach of the relevant standards.

The Complainant’s Final Comment

[24] Expressing concern that the broadcaster seemed to have "endless rights of redress", Dr Hunter argued:

I make my complaint on behalf of myself and my family but also on behalf of the entire audience of New Zealand children who saw that promotion. I feel that it breached my family’s standards, the standards of our communities and normal broadcasting standards.

The reference to oral sex is not part of normal family conversation or expectation when we are watching a PGR show and that if others consider this to be so then there should be specific warning that the following advertisements may be offensive and damage the health and well-being of some of our target audience.

[25] He repeated his complaint that a reference to "oral sex" in the PGR time slot breached the standards he had nominated. It made no difference, he contended, that the reference was brief. On the basis that it was necessary for adults to protect children, and nurture their mental, physical, spiritual and emotional growth, Dr Hunter argued that random exposure to a reference to oral sex, in a situation where parental guidance might not mitigate the harm, breached broadcasting standards. The current complaint, he continued, deserved severe penalties on TV3 as an expression of public contempt.

The Authority’s Determination

[26] On its initial consideration of the complaint, it appeared to the Authority that TV3 had not assessed the entire complaint. While Dr Hunter referred to the promo which included extracts from Special Victims Unit and Crime Scene Investigation, TV3 had focused on the reference to oral sex in the promo for the former programme. TV3 was asked by the Authority to consider the full complaint. The Authority notes the complainant’s concerns about the complaints process but, in this instance, does not consider that the manner in which TV3’s Standards Committee investigated the complaint affected the determination.

[27] In its response as to the scope of the complaint, TV3 submitted, in view of the matters raised by Dr Hunter, that the complaint was concerned with the dialogue in regard to oral sex. When asked for his comment, Dr Hunter maintained that the complaint included the oral sex reference and "other inappropriate macabre, disturbing and violent themes". Dr Hunter also expressed concern about the juxtaposition between a violent theme and the sexual reference.

[28] In view of the matters raised by the complainant, the Authority has considered the full promo. When it determines a complaint about whether a broadcast contravenes standard 1 of the Television Code, the Authority is required to determine whether the material complained about breached currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but does not determine whether the programme breached the standard. Accordingly, the Authority has considered the context in which the promo complained about was broadcast.

[29] The relevant contextual matters on this occasion are the broadcast of the promo for two AO rated programmes, although the promo itself was rated PGR by TV3 and broadcast during the PGR time band in a PGR rated programme. The Code (Guideline 7b of Standard 7) allows for promos of PGR and AO programmes to be broadcast in an earlier time band, provided the promo itself complies with the time band in which it is broadcast. In view of this provision, the Authority has considered whether the promo complained about was appropriately rated PGR.

[30] It considers first the part of the promo which included extracts from Crime Scene Investigation and decides that the brief references to the macabre and to violence were appropriately rated. It does not accept that the promo involved a juxtaposition between sex and violence which, Dr Hunter argued, debased women.

[31] Turning to the other aspect of the promo complained about, the Authority records the dialogue taken from an episode of Special Victims Unit used in part of the extract shown. The dialogue included recorded:

Since when is oral sex not sex? Since Bill Clinton said so.

[32] The Authority also records the PGR and AO classifications contained in the Code:

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

AO – Adults Only

Programmes containing adult themes and directed primarily at mature audiences.

AO programmes may be screened between midday and 3pm on weekdays (except during school and public holidays as designated by the Ministry of Education) and after 8.30pm until 5am.

[33] A majority of the Authority (Peter Cartwright and Rodney Bryant) acknowledges that the decision whether the promo was correctly rated PGR or should have been AO is finely balanced. Nonetheless, it considers that it is probable that many school-age children are more familiar with the concept of oral sex than adults may be aware of. Accordingly, the majority decline to uphold the complaint as a breach of the requirement in Standard 7. Moreover, it agrees with TV3 when it maintained that an AO rating was not required because:

The phrase about oral sex was not explained or dwelt upon in the promo, nor was it visually explicit – it was a brief matter-of-fact verbal reference that was not elaborated on in any way in the promo.

[34] A minority of the Authority (Judy McGregor and Tapu Misa) disagrees.

It does not accept that the reference to oral sex was permissible in a programme classified PGR. It agrees with the complainant that the care-giver of children should not be put in a position, during family viewing, of having either to explain oral sex to them or to ignore the comments when asked about them.

[35] The Authority is unanimous in acknowledging that promos are designed to have an impact, and that promos are usually broadcast without warning. Accordingly, it encourages broadcasters to exercise caution when extracting material from a programme to be included in a promo, especially if the promo is to be broadcast in a less restrictive time-band.

[36] In regard to the other standards nominated by Dr Hunter, the Authority does not agree that the promo contravened community standards of good taste and decency in Standard 1 in view of the complainant’s focus on its classification. The Authority does not believe that the promo contained violence which transgressed Standard 10. It considers that Dr Hunter’s concerns about the reference to children’s interests in Standard 9 have been fully addressed in its discussion above in relation to Standard 7.

[37] The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

[38] The Authority notes that under the First Schedule of the Broadcasting Act 1989 that when there is equality in the number of votes, the Chair has a casting vote as well as a deliberative vote.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
7 August 2003

Appendix

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

1. Dr Hunter’s Complaint to TV3 Network Services Ltd – 12 December 2002
2. TV3’s Response to Dr Hunter – 24 January 2003
3. Dr Hunter’s Referral to the Broadcasting Standards Authority – 9 February 2003
4. TV3’s Response to the Authority – 24 February 2003
5. Dr Hunter’s Final Comment – 5 March 2003
6. TV3’s Response to the Authority – 9 April 2003
7. Dr Hunter’s Second Final Comment – 26 April 2003