BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – interview with female porn star about her thoughts on feminism and sexuality – included footage of porn star wearing lingerie and clips from her pornographic movies – broadcaster upheld complaint under good taste and decency and children’s interests standards – action taken allegedly insufficient

Findings
Action taken – Standards 1 (good taste and decency) and 9 (children’s interests) – serious breach of good taste and decency and children’s interests standards – action taken by broadcaster was insufficient – upheld

Orders
Section 13(1)(a) – broadcast statement

Section 16(4) – costs to the Crown of $3,000

This headnote does not form part of the decision.

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Broadcast

[1]   During an episode of Close Up, broadcast on TV One at 7pm on 11 August 2010, a reporter interviewed a female porn star, Nina Hartley, about her life and thoughts on feminism and sexuality. The item included footage of Ms Hartley posing for photo shoots and acting in pornographic movies. Ms Hartley was shown:

• wearing only a push-up bra and a g-string
• having her toes sucked by a man
• dancing erotically, wearing a see-through gown and lingerie, with her bottom toward the face of a man sitting on a chair behind her
• rubbing a man’s groin with her foot as the man ran his hand up her leg
• positioned on all fours, swaying her hips from side to side as a man buried his face in between her buttocks
• rubbing her bottom against a man’s face while wearing a garter-belt and no underwear, with her pubic hair visible
• sitting next to a woman on a couch, both wearing lingerie, giving the woman a foot massage.  

[2]   The item was preceded by the following verbal warning from the presenter:

It might seem obvious, but our next story requires some viewer discretion. It’s about an adult film actress – in other words a porn star – who also claims to be a feminist, an advocate for a woman’s right to choose. What she chooses to do of course may not sit comfortably with everyone.

Complaint

[3]   Robyn and Bert Jackson made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item breached standards of good taste and decency and children’s interests. They argued that the programme contained “shocking indecent graphics”, was in “utter poor taste” and appeared to be a “blatant promotion of the porn industry”.

[4]   In their view, “the reported harm done by pornography to families and women should have been enough to have stopped this going to air especially at a time which is classed as family viewing time”.

Standards

[5]   TVNZ assessed the complaint under Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 1  Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 9  Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters should consider the interests of child viewers.

Broadcaster’s Response to the Complainant

[6]   TVNZ said that the item subject to complaint concerned a visiting porn star who was also a feminist. It considered that the topic under discussion was acceptable for screening during current affairs programming at 7pm. It noted that the item was preceded by a verbal warning that gave notice of the type of material contained in the broadcast.

[7]   The broadcaster acknowledged that as part of the item, clips from Ms Hartley’s movies were shown and it agreed that “some of this material” was not appropriate to screen during Close Up at 7pm in the PGR time-band. The broadcaster therefore accepted that it had not properly considered the interests of child viewers in screening the item during their normally accepted viewing times. In TVNZ’s view, “these few images” would have offended a significant number of viewers in the context of current affairs programming screening at 7pm.

[8]   Accordingly, TVNZ upheld the complaint that the item breached Standards 1 and 9.

[9]   Having upheld Mr and Mrs Jackson’s complaint, the broadcaster apologised to the complainants for any offence caused. It said that it had spoken to Close Up about the footage being included in the item and that Close Up acknowledged that it should not have been shown. TVNZ assured the complainants that their concerns had been taken seriously, and said that measures had been discussed with Close Up to prevent this sort of “error” reoccurring.

Referral to the Authority

[10]   Dissatisfied with the action taken by the broadcaster, Mr and Mrs Jackson referred their complaint to the Authority under section 8(1B)(b)(ii) of the Broadcasting Act 1989.

[11]   The complainants reiterated their view that the images of “a frontally-exposed woman engaged in sexual activity with a man” screened during family viewing time was “far outside” current norms of good taste and decency. They maintained that such material was “completely contrary” to what most parents would consider to be in the interests of child viewers.

[12]   Mr and Mrs Jackson were dissatisfied with the in-house measures taken to deal with the matter, and in their view, the broadcast demonstrated “incompetence” and a “complete disregard for public standards” on the part of TVNZ staff. They argued that the only “adequate solution” was to replace them with “more capable employees”.

[13]   Mr and Mrs Jackson asked the Authority to take whatever measures necessary to ensure that such material was not broadcast again in the future.

Broadcaster’s Response to the Authority

[14]   The broadcaster again acknowledged that it should not have screened the footage subject to complaint, and reiterated that it had upheld the complaint under Standards 1 and 9, apologised to the complainants and discussed measures with Close Up to prevent a recurrence.  

[15]   TVNZ noted that it had received a number of complaints about the Close Up item, and pointed out that only Mr and Mrs Jackson had referred their complaint to the Authority. It said that it had received an “unprecedented” number of responses to its decision, which in its view indicated that to the majority of complainants the action taken by it in this regard was sufficient. For these reasons, TVNZ argued that the Authority should not uphold the action taken complaint.

Authority's Determination

[16]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Action Taken: Standard 1 (good taste and decency) and Standard 9 (children’s interests)

[17]   Our task on this occasion is to determine whether the action taken by TVNZ, having upheld Mr and Mrs Jackson’s complaint, was sufficient in all the circumstances. We note that the broadcaster upheld the complaint under Standards 1 and 9, apologised to the complainants for any offence caused and discussed measures with Close Up to ensure that such footage was not broadcast again in the future.

[18]   For the reasons outlined below, we consider that the action taken by the broadcaster was insufficient in the circumstances.

[19]   In our view, the item contained raunchy and sexually explicit images. These were not just a “few images”, as contended by TVNZ, but were prolonged and sustained. We agree with TVNZ that it did not properly consider the interests of child viewers, and that the images would have offended a significant number of viewers in the context of a current affairs programme screened at 7pm.

[20]   Furthermore, we note the Authority’s recent decision, Painter and Taylor and TVNZ,¹ where it upheld a breach of Standards 1 and 9 in regards to an item on Close Up containing references to sex, and showing scenes from a film of the main characters kissing passionately and the male character putting his head up the female character’s skirt. In our view, the images complained about by Mr and Mrs Jackson were far more challenging and sexually explicit than those complained about in Painter and Taylor. In light of that decision, we consider that it should have been very clear to TVNZ that screening these images would amount to a breach of broadcasting standards.

[21]   We consider that screening these clips from pornographic movies on free-to-air television and in the PGR time-band, amounted to an egregious breach of broadcasting standards. The fact that this item was broadcast, in our view, reflects a significant lapse in judgment by the broadcaster and suggests that no changes in process were instituted by Close Up following our decision in Painter and Taylor.

[22]   We find that an apology to the complainants and a discussion about processes was clearly insufficient given the serious nature of the breach. Having reached this conclusion, we must now consider whether to uphold Mr and Mrs Jackson’s complaint.

[23]   We acknowledge that upholding the action taken complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Robinson and Radioworks Ltd,² the Authority determined that upholding an action taken complaint would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.

[24]   With that in mind, we must now consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold the complaint on this occasion. Imposing further sanctions on TVNZ is, in our view, reasonable and proportionate given the serious nature of the breaches and TVNZ’s failure to properly address their significance.

[25]   We therefore uphold the complaint that the action taken by the broadcaster in relation to Standards 1 and 9 was insufficient.

For the above reasons the Authority upholds the complaint that the action taken by Television New Zealand Ltd after upholding a breach of Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice with respect to an item broadcast on Close Up on 11 August 2010 was insufficient.

[26]   Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

[27]   Mr and Mrs Jackson submitted that TVNZ should be ordered to forego an amount of advertising revenue, or ordered to cease broadcasting for a period of time, to motivate it to make long-term changes in order to prevent future breaches of broadcasting standards. In addition, the complainants submitted that TVNZ should be required to broadcast a public statement explaining the decision and apologising to viewers.

[28]   TVNZ submitted that publication of the decision would be sufficient penalty and that no other orders were warranted.

[29]   On this occasion, we agree with the complainants that an order requiring TVNZ to broadcast a statement summarising the upheld aspects of our decision is warranted. We consider that broadcasting the statement once during Close Up in accordance with our usual procedure is appropriate.

[30]   In our view, given the seriousness of the breaches of Standards 1 and 9 on this occasion, an order of costs to the Crown is also warranted. In determining an appropriate costs award we have taken into account the Authority’s recent decision in Painter and Taylor, which, in our view, should have put TVNZ on notice that the footage broadcast on this occasion went far beyond the borderline of acceptability for a current affairs programme screened at 7pm. However, we have also had regard to the fact that TVNZ upheld the complaint, and discussed measures with Close Up to prevent further breaches of broadcasting standards. In all the circumstances, we consider that an order of $3,000 is appropriate.

[31]   Turning to the complainants’ submissions that TVNZ should be required to apologise, and to cease broadcasting or broadcasting advertising programmes for a period of time, we note that such orders are made only rarely and in exceptional circumstances, and we do not consider that they are warranted on this occasion.

[32]   We have considered the New Zealand Bill of Rights Act 1990 and the principle of freedom of expression in ordering the broadcast of a statement under section 13(1)(a) and the payment of costs to the Crown under section 16(4) of the Broadcasting Act 1989. On this occasion we are satisfied that the orders we have made are consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Orders

The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:

1. Pursuant to section 13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision
• be broadcast during Close Up
• be broadcast both verbally and visually on screen
• be broadcast at a time and date to be approved by the Authority
• contain a comprehensive summary of the upheld aspects of the Authority’s decision.

 The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to section 16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $3,000 within one month of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
18 March 2011

Appendix

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

1                  Robyn and Bert Jackson’s formal complaint – 13 August 2010

2                 TVNZ’s response to the formal complaint – 9 September 2010

3                 Mr and Mrs Jackson’s referral to the Authority – 16 September 2010

4                 TVNZ’s response to the Authority – 30 November 2010

5                 Mr and Mrs Jackson’s submissions on orders – 12 January 2011

6                 TVNZ’s submissions on orders – 11 February 2011

¹Decision No. 2009-155

²Decision No. 2010-037