BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Six Feet Under – male nudity – breach of good taste and decency – broadcaster not mindful of the effect on teenagers

Findings
Standard 1 – contextual matters – no uphold

Standard 9 – not relevant – no uphold

This headnote does not form part of the decision.

Summary

[1] Six Feet Under is a series about a family of undertakers, and is described by the broadcaster as "black comedy". An episode broadcast on 23 April 2002 at 9.40pm on TV One included a scene with a full frontal view of a naked man.

[2] Graham Jacobsen complained to Television New Zealand Ltd, the broadcaster, that the scene was too explicit, was not excused by the broadcast of a warning, and breached standards relating to teenager’s viewing interests.

[3] Declining to uphold the complaint, TVNZ said in context the scene did not breach current norms of good taste and decency and children were specifically protected by the late screening of the programme.

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

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

Decision

[5] The members of the Authority have viewed the first two episodes of the series together with the programme complained about and have read the correspondence listed in the Appendix. The Authority determines this complaint without a formal hearing.

The Broadcast

[6] Six Feet Under is a series about a family of undertakers, and is described by the broadcaster as "black comedy". An episode broadcast on 23 April 2002 at 9.40pm on TV One included a scene with a full frontal view of a naked man.

The Complaint

[7] Mr Jacobsen complained to Television New Zealand Ltd, the broadcaster, that the item breached standards of good taste and decency, and teenager’s viewing interests. Mr Jacobsen said that the scene, of full frontal male nudity, was too explicit, and was not necessary to the story line.

[8] The complainant wrote:

The warning of sexual content/nudity does not give grounds for such explicit sexual viewing. Even with a warning, there still needs to be a limit as to what is acceptable. A "warning" cannot be a licence for "anything goes".

[9] Mr Jacobsen also considered that many teenagers were still up watching television at that time, and that the warning would encourage them to watch the programme.

The Standards

[10] TVNZ assessed Mr Jacobsen’s complaint against Standard 1, Guideline 1a and Standard 9, Guideline 9a, 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.

Guideline

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.

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.

Guideline

9a  Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material which would disturb or alarm them.

The Broadcaster’s Response to the Complainant

[11] TVNZ declined to uphold the complaint. It explained that the scene complained about was part of an ongoing story-line of the series that involved one of the main characters and his relationship with his unusual girlfriend.

[12] TVNZ argued that Six Feet Under was "highly acclaimed as a drama series of unusually high quality" and wrote:

It is TVNZ’s preference, particularly when high quality programming is involved, to show programmes as their directors intended them to be shown. That way the episodes retain integrity and are not marred by ugly cuts. In order to broadcast Six Feet Under TVNZ sought to find a way other than censorship to protect vulnerable members of the audience who might be upset or offended by language, sex and nudity which is included in the series from time to time. The answer was to screen the programme late at night (it does not start until more than an hour after the adults only watershed), to attach a warning which drew attention to the content of the programme, and to classify the programme AO (Adults Only) with the AO symbol appearing at the beginning of the programme and after each commercial break.

[13] Turning to Standard 1, TVNZ concluded that taking into account the contextual matters stated above, the programme did not breach current norms of good taste and decency. TVNZ maintained that regular viewers of this programme would not have been shocked by the nudity, which was not gratuitous, but was a continuation of a "dramatic theme running through the series".

[14] In relation to Standard 9, TVNZ argued that child viewers, who have been defined in the Code as being those under 14 years of age, were protected because the programme was classified AO and screened late at night.

[15] TVNZ noted that "it did not identify any threat the sequence may have posed to older teenagers", and it refuted the claim that warnings served to tempt younger viewers. TVNZ said it was specifically required by the Code to consider the use of warnings, and its policy to provide warnings was to assist viewers to make informed choices about what programmes they wanted to watch. It wrote:

The warnings point to those elements which might offend sensitive viewers and the information is relayed in a sober, non-sensationalist fashion – by way of an on-screen graphic with a voice-over.

The Referral to the Authority

[16] Mr Jacobsen was dissatisfied with TVNZ’s decision, and reiterated that the scene had breached standards of good taste and decency. He said, "I do not accept that a warning is a licence to show nudity."

The Broadcaster’s Response to the Authority

[17] TVNZ said it had nothing more to say in response to the complaint. However, a review of Six Feet Under written in "The Listener" was enclosed which spoke positively of the series. TVNZ also included videos of the first two episodes of the series to enable the Authority to become "familiar with the characters, their lifestyles and their eccentricities."

The Complainant’s Final Comment

[18] Mr Jacobsen said that the current norms of decency did not tolerate such scenes, and caused offence to adult viewers. Mr Jacobsen considered that such scenes could be implied, and that such explicit viewing had the ability to erode the "intimacy, privacy and beauty of a marriage relationship."

[19] Mr Jacobsen expressed concern for those viewers without a choice, and maintained that TVNZ had a responsibility for the well-being of its viewers. He also requested a stop to the increasing amount of explicit sex and nudity allowed on television.

The Authority’s Determination

[20] When it determines a complaint that a broadcast contravenes Standard 1 of the Television Code, 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 context is relevant, but does not determine whether the programme breached the standard. Accordingly, the Authority has considered the context in which the material complained about was broadcast.

[21] The Authority accepts that the relevant contextual matters on this occasion include the starting time of the broadcast (at 9.40pm), the nature of the programme (adult drama series), the pre-broadcast warning, and the programme’s AO classification. The Authority considers that while the showing of male genitals was explicit, the emphasis of the scene was on the nudity, which was not sexually gratuitous. Furthermore, it is the Authority’s view that the nudity was integral to the story-line development, which explored jealously between two of the main characters. It was an incident in which Nate was confronted with a "Crocodile Dundee" type character, who was armed with a sleeping bag and whose clothes were being laundered by Nate’s eccentric girlfriend, Brenda. Nate was faced with yet another unpredictable situation, resulting from his relationship with his unusual girlfriend. The Authority accepts TVNZ’s contention that the scene was part of an on-going theme involving Nate and Brenda’s relationship.

[22] In addition to the episode complained about, the Authority also viewed the first two episodes of the series, in order to become familiar with the characters and their lifestyles. After viewing all the material, the Authority accepts that the challenging nature of the content may divide viewers. While some may enjoy the programme, others will be offended by its content. The Authority considers that the programme’s cutting edge humour revolving around death and an undertaking business sometimes pushes the boundaries of good taste and decency. Nonetheless, in view of the contextual matters referred to above, the Authority concludes that the scene complained about did not breach Standard 1.

[23] Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times. Mr Jacobsen complained that the programme was unsuitable for teenage viewers. The Authority considers that Standard 9 is not relevant in this case. It notes that the standards relating to "children" refer to those under the age of 14 years, and that the time of 9.40pm is not regarded as "children’s normally accepted viewing time". Accordingly, the Authority declines to uphold this aspect of the complaint.

[24] The Authority notes Mr Jacobsen’s comments regarding the use of warnings by broadcasters. It is the Authority’s view that the use of a warning is an integral part of the Television Code, and the use of warnings by a broadcaster is encouraged by the Authority as such warnings provide an indication in advance to viewers that the content is likely to offend or disturb a significant proportion of the audience.

[25] The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 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). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with the provisions of the New Zealand Bill of Rights Act.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
22 August 2002

Appendix

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

1. Graham Jacobsen’s Formal Complaint to Television New Zealand Ltd – 26 April 2002
2. TVNZ’s Response to the Formal Complaint – 17 May 2002
3. Mr Jacobsen’s Referral to the Broadcasting Standards Authority – 6 June 2002
4. TVNZ’s Response to the Broadcasting Standards Authority – 12 June 2002
5. Mr Jacobsen’s Final Comment – 20 June 2002