Hyslop & McElroy and Television New Zealand Ltd - 2018-073 (14 November 2018)
- Judge Bill Hastings (Chair)
- Paula Rose
- Wendy Palmer
- Susie Staley
- Delwyn Hyslop and Rosemary McElroy
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority has not upheld two complaints about two episodes from the second season of British dating game show, Naked Attraction, broadcast on TVNZ 2 at 9.30pm on Friday 27 July 2018 and Friday 3 August 2018. During each episode, a clothed individual selected a date from six naked individuals, who were gradually revealed in stages from the feet up, with no blurring or pixelation of nudity. The complaints alleged these episodes of Naked Attraction contained a high level of full-frontal nudity and sexual discussion, which was offensive and contrary to standards of good taste and decency. The complainants also submitted that the programme was degrading and breached the privacy of the participants. The Authority found that while the programme may not have been to everybody’s taste, it was preceded by a clear warning, contained many body-positive messages and those involved in the programme spoke positively of their experiences. Given the tone of the programme, there was no element of exploitation or humiliation of participants and it was clear that they had given their consent to appear on the programme. Overall, the Authority did not consider that the alleged harm caused by the broadcast outweighed the important right to freedom of expression, taking into account the above contextual factors and the protections available to viewers, including a detailed warning, to help them make an informed choice about whether to watch the programme.
Not Upheld: Good Taste and Decency, Discrimination and Denigration, Privacy
 Two episodes from the second season of British dating game show, Naked Attraction, were broadcast on TVNZ 2 at 9.30pm on Friday 27 July 2018 and at 9.30pm on Friday 3 August 2018.
 During each episode, a clothed individual selected a date from six naked individuals, who were gradually revealed in stages from the feet up, with no blurring or pixelation of nudity. Once the contestant had narrowed their selection to two individuals, they also appeared naked to choose their preferred date.
 Following the individual’s selection of their date, and footage of the couple’s (fully clothed) date, the individuals talked about their experience. The participants who were not selected for a date also discussed their experience of being on the show and appearing naked.
 Each episode was preceded by the following written and verbal warning, which also appeared on screen after each advertisement break:
Naked Attraction is rated Adults Only. It contains full-frontal nudity and explicit sexual references.
 Delwyn Hyslop and Rosemary McElroy complained that these episodes of Naked Attraction breached the good taste and decency, discrimination and denigration and privacy standards. Because the complaints raised similar issues about the same programme (although two different episodes), we considered them together.
 The complaints can be summarised as follows:
- The programme’s depiction of nudity was extreme, continuous and filmed in close-up, and the programme also contained numerous sexual references which went beyond what could be expected from the programme’s warning.
- Naked Attraction was vulgar and degraded men and women. It also promoted voyeurism and a porn culture that was harmful to society and to those struggling with porn addiction.
- The programme’s warning was insufficient, as it did not appear on TVNZ On-Demand or through MY SKY recordings. Free-to-air television does not have parental locks available to protect young viewers.
- Participants were placed in a vulnerable position through the exposure of their ‘private parts’ or genitalia on television, resulting in a breach of their privacy.
The broadcaster’s response
 In response to the good taste and decency complaints, TVNZ said that:
- The aim of the programme is to explore what people find physically attractive and whether choosing a partner based on physical attraction alone can help people find their ideal partner. The participants then go on a clothed date to see if their physical attraction is matched after getting to know the person. The experiences of the participants, presented in their own words during the programme, were positive.
- The episodes contained full-frontal nudity and adult discussions containing some sexual inferences. These were matter-of-fact and not designed to titillate.
- It is established in Authority decisions that it is acceptable to see naked people, including genitalia, on free-to-air television. In this case, as the nudity was somewhat sexualised, the programme was rated AO (rather than G or PGR).1
- The Authority has previously considered complaints about season one of Naked Attraction,2 finding that while the programme was acceptable to broadcast, it required a more explicit warning. The warning was amended for the broadcast of the second series.
- Other decisions by the Authority concerning nudity and sexual content in the AO timeband were not upheld as a breach of standards. 3
- The content of the Naked Attraction episodes did not amount to pornography.
- The programme was classified Adults Only and screened at 9.30pm, more than an hour after the 8.30pm AO watershed. There is an expectation that material screened after 9.30pm may contain strong adult content and a greater degree of sexual material and offensive language.
- There is also an expectation that parents and caregivers monitor children’s viewing of AO material. Contrary to the complainants’ submissions, technology enabling parents to block content is available on free-to-air television (Freeview and Smart TVs) and on SKY.
- The programme was preceded by a written and verbal warning (above at paragraph ), which also appeared on the TVNZ On-Demand platform.
 Under the discrimination and denigration standard, TVNZ responded that:
- The programme was inclusive and portrayed ‘real people’, rather than an idealised or unrealistic version of human attractiveness.
- There was no level of condemnation, malice or nastiness. Contestants were overwhelmingly positive about their experience on the programme and expressed that being naked on the show was good for their self-esteem.
- The BSA previously found no breach of this standard in relation to episodes in season one of the programme. These episodes also did not encourage discrimination or the denigration of any section of the community.
 Finally, TVNZ said that the privacy standard required private facts to be revealed about an identifiable individual. There was no breach of the privacy standard in this case.
Freedom of expression
 In New Zealand we value the right to freedom of expression. So when we consider a complaint that a broadcast has breached broadcasting standards, we first look at the right to freedom of expression. We weigh the value of the programme, and the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast, whether to individuals or to audiences generally.
 The high importance we place on our ability to exercise the right to freedom of expression is reflected in our constitutional law by the New Zealand Bill of Rights Act 1990, at section 14:
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form. [Our emphasis]
 While the right to freedom of expression is valued and important, it is not an absolute right and may be restricted, where such a restriction is reasonable and justified in a fair and democratic society. The right to freedom of expression in New Zealand therefore allows broadcasters to raise ideas in a way that might be satirical, provocative or in poor taste, provided it does not cause undue harm. The right to freedom of expression comes with responsibilities and broadcasting standards are designed to guide broadcasters in this exercise.
 In summary, freedom of expression is an important right. It is critical to our democracy. The cost of our having this freedom means that, at some times, the exercise of freedom of expression may cause offence to be taken by some or will result in harm being felt by some. Ultimately, we must strike the appropriate balance between the right to freedom of expression on one hand, and on the other, the harm that might be caused to people in society through a breach of broadcasting standards.
 In making our determination on these complaints, we have carefully considered this balancing act between the right to freedom of expression and the harm alleged to have been caused by the programme. We have considered the issues raised by the complainants, and the response from the broadcaster, and we have viewed the episodes of Naked Attraction subject to complaint. Importantly, we have considered the context of the broadcast and of the programme itself.
 Overall, we have found that the harm alleged to have been caused by these broadcasts did not outweigh the right to freedom of expression. As the Authority has concluded in previous decisions,4 there was a positive element to this programme. To say that it should not have been broadcast at all would in our view represent an unreasonable and unjustified limit on the right to freedom of expression.
 While the programme may not have been to everyone’s taste, it addressed real aspects of human social behaviour in a good-humoured way. Some viewers would have found the programme to be entertaining, and we believe that audiences should have the freedom and capacity to make viewing and listening choices, provided they are given adequate information to make those choices in an informed way. In this case, we were satisfied that sufficient information was provided to viewers about these episodes of the programme. We have reached this view taking into account the various matters considered in previous decisions on this programme,5 and adopt the principles outlined in those decisions.
 Against this background we outline our views below in relation to each of the standards raised, with respect to these particular episodes of the second series of Naked Attraction.
Good Taste and Decency
 The purpose of the good taste and decency standard (Standard 1) is to protect audience members from listening to or viewing broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards. Broadcasters should take effective steps to inform audiences of the nature of the programme, and enable listeners to regulate their own and children’s listening or viewing behaviour.
 We accept that some people would find the content of this programme to be challenging. Aside from the programme’s nudity (which of itself is unlikely to breach broadcasting standards),6 these episodes also contained frank discussion about sexual attraction. While we do not consider these particular episodes went as far as previous episodes we have considered, in that there were very few brief references to sexual activity,7 we acknowledge that the complainants in this case found the explicit nudity and sexual discussion offensive and unacceptable.
 We have nevertheless reached the view that these episodes of Naked Attraction did not go beyond what could be expected from an Adults Only programme broadcast at 9.30pm, with an explicit warning for full-frontal nudity and sexual content.
 The tone of the sexual discussion during these episodes was kept light and good-humoured, and participants spoke positively of their experiences on the programme. The subject matter, which focused on fundamental aspects of human behaviour, was approached carefully and we saw no sexist, exploitative or degrading conduct and no content that could be said to be pornographic, in the sense that it was designed to invoke sexual arousal, or create sexual excitement.
 The key issue is whether the suite of information and protections available to viewers enabled them to make an informed choice about whether they wanted to watch the programme.
 The Authority’s previous decisions, regarding the first season of the programme, found that the pre-broadcast warning for ‘nudity’ in Naked Attraction was inadequate, meaning that audiences were not provided with sufficient information to decide whether they, or children in their care, should view the programme. Following these decisions, the broadcaster reviewed and amended the warning for the second season of the programme (see paragraph ).
 The amended warning which accompanied these two episodes referred to the ‘full-frontal nudity’ and ‘explicit sexual references’. It was rebroadcast following each advertisement break. The broadcaster has advised that it also appeared alongside the on-demand version of the episodes online (though our jurisdiction is limited to considering the television broadcasts). We also found that the programme’s host signposted upcoming content at the beginning of the programme and within the programme itself, alerting both contestants and viewers to what would be coming up in the next stage of the game.
 In our view, the televised warning, along with other tools and information available, sufficiently signposted the nature of the programme for viewers, who could then make an informed choice about whether they, or children in their care, should view the programme. This included the programme’s classification, the time of broadcast, signalling by the host and the ability for viewers (including free-to-air television viewers) to make use of parental locks to block unsuitable content. The programme’s title, promotional material and the wide media coverage and commentary around the first season of Naked Attraction also signalled that the programme would contain nudity and sexual discussion.
 For these reasons, we do not uphold the complaints under Standard 1.
Discrimination and Denigration
 The discrimination and denigration standard (Standard 6) protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.
 ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment. ‘Denigration’ is defined as devaluing the reputation of a class of people.8
 Reflecting the importance of the right to freedom of expression, guideline 6b to the standard states that a high level of condemnation, often with an element of malice or nastiness, will be necessary to conclude that a broadcast encouraged discrimination or denigration.
 As we have said above, and in a previous decision considering this standard,9 the tone of this programme was positive. In these particular episodes, the participants’ and host’s discussions were good humoured, and participants, aside from admitting some nerves, were generally positive about their experience of being on the show, even where the relationship did not work out.
 We have carefully considered the complainants’ submissions that the programme was degrading towards, or objectified, the men and women who participated. In our view there was no element of humiliation or exploitation of the participants, viewers, or human beings or relationships generally. The overall messaging about body image and self-esteem was positive and encouraging, particularly in the episode broadcast on 27 July 2018, which included a contestant who had been diagnosed with cancer and another contestant with a degenerative condition, whose preference was to appear in a wheelchair. The overall message of the programme was positive and encouraging – there are no rights or wrongs in body type or features and everyone can be proud of what they have been given.
 Taking these contextual factors into account, we are satisfied that the comments made during the programme did not amount to, and would not be received by viewers as, either hate speech or a sustained attack on a particular group. We do not believe the programme could reasonably be interpreted as actively encouraging the different treatment of, or devaluing the reputation of, any section of the community. In our view upholding this aspect of the complaint would place an unreasonable limit on the right to freedom of expression.
 Accordingly, we do not uphold the complaint under Standard 6.
 The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. It is not a breach of privacy where the person concerned has given informed consent to the disclosure of private information or material.10
 One of the complainants was concerned that this programme encouraged vulnerable people to expose themselves on television, which amounted to a breach of their privacy.
 From their on-screen interviews, it is clear that participants consented to appear on the programme and overall they were positive about the experience. We could see no evidence of coercion or exploitation of participants during the episodes complained about.
 Accordingly we find no breach of the privacy standard.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
14 November 2018
The correspondence listed below was received and considered by the Authority when it determined this complaint:
Rosemary McElroy’s formal complaint
1 Rosemary McElroy’s formal complaint – 1 and 7 August 2018
2 TVNZ’s response to the complaint – 29 August 2018
3 Ms McElroy’s referral to the Authority – 2 September 2018
4 TVNZ’s confirmation of no further comment – 9 October 2018
Delwyn Hyslop’s formal complaint
5 Delwyn Hyslop’s formal complaint – 3 August 2018
6 TVNZ’s response to the complaint – 31 August 2018
7 Ms Hyslop’s referral to the Authority – 18 September 2018
8 TVNZ’s confirmation of no further comment – 9 October 2018
1 For example, Keatinge and Television New Zealand Ltd; Decision No. 2012-016; Hutt and Television New Zealand Ltd, Decision No. 2009-103; Cheyne and Television New Zealand Ltd, Decision No. 2007-116
2 13 Complainants and Television New Zealand Ltd, Decision No. 2017-101 and Six Complainants and Television New Zealand Ltd, Decision No. 2018-010
3 For example, Ross and Māori Television Service, Decision No. 2017-045; Hall and Television New Zealand Ltd, Decision No. 2010-169; Ben and Dragicevich and Television New Zealand Ltd, Decision No. 2010-128; Woodham and TV3 Network Services Ltd, Decision No. 2003-118
4 Decision No. 2017-101 and Decision No. 2018-010, above
5 Decision No. 2017-101 and Decision No. 2018-010, above
6 See footnotes 1 and 3 above
7 See, for example Six Complainants and Television New Zealand Ltd, above, at 
8 Guideline 6a
9 Decision No. 2018-010, above
10 Guideline 10g