James and TVWorks Ltd - 2009-127
- Joanne Morris (Chair)
- Mary Anne Shanahan
- Tapu Misa
- Paul France
- Nina James
Channel/StationTV3 # 3
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
3 News – report on the Boobs on Bikes parade – contained footage of bare-breasted women – allegedly in breach of good taste and decency and children’s interests
Standard 1 (good taste and decency) – footage was fleeting and taken from a distance – not salacious – preceded by a warning – contextual factors – not upheld
Standard 9 (children’s interests) – contained warning to advise parents – broadcaster adequately considered the interests of child viewers – not upheld
This headnote does not form part of the decision.
 An item on 3 News, broadcast on TV3 at 6pm on Wednesday 23 September 2009, reported on the “Boobs on Bikes” parade in Auckland. The presenter introduced the item by saying:
It may be trashy, it may be tacky, but an estimated 90,000 Aucklanders turned out to watch this year’s Boobs on Bikes parade. The spectators got what they wanted, and if you find the thought of bare breasts offensive, you may wish to turn away now.
 The item included footage of bare-breasted women riding as pillion passengers on motorcycles and standing up in a convertible car. Footage was also shown of spectators watching the parade from the roadside and office blocks.
 The item contained interviews with the parade’s organiser, Steve Crow, and with a female participant from America.
 Nina James made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item breached standards relating to good taste and decency and children’s interests. The complainant argued that the footage of the bare-breasted women was “pornographic” and that it should not have been broadcast, particularly as children could have been watching.
 Standards 1 and 9 and guidelines 1a, 1b and 9a of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:
Standard 1 Good Taste and Decency
Broadcasters should observe standards of good taste and decency.
1a Broadcasters will take into account current norms of good taste and decency bearing in mind the context in which any content occurs and the wider context of the broadcast e.g. programme classification, target audience, type of programme and use of warnings etc.
1b The use of visual and verbal warnings should be considered when content is likely to disturb or offend a significant number of viewers except in the case of news and current affairs, where verbal warnings only will be considered. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.
Standard 9 Children’s Interests
During children’s normally accepted viewing times (see Appendix 1), broadcasters should consider the interests of child viewers.
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 that would disturb or alarm them.
Broadcaster's Response to the Complainant
 TVWorks stated that it was sorry the complainant was upset by the contents of the “Boobs on Bikes” item. However, it argued that the Authority, in Forbes-Dawson and TVWorks,1 had already determined that news coverage like this was not a breach of broadcasting standards.
 As a result, the broadcaster declined to accept the complaint.
Referral to the Authority
 Dissatisfied with TVWorks’ response, Ms James referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. She reiterated her argument that the item had breached Standards 1 and 9.
 The complainant also argued that the broadcaster had supported the event by not masking the images of bare-breasted women. She considered that this displayed a lack of impartiality by 3 News in breach of Standard 5 (accuracy).
 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.
 TVWorks “declined to accept” Ms James’ complaint because it believed that the Authority had already determined that news coverage of the sort contained in the item did not breach broadcasting standards. The Authority points out that the Broadcasting Act 1989 does not allow a broadcaster to “decline to accept” a valid formal complaint.
 Further, the Authority has not found that footage of “Boobs on Bikes” will never breach broadcasting standards. Every complaint must be considered on its own merits and whether a breach occurs depends on an item’s content and the context in which it is shown.
 However, despite TVWorks’ use of the phrase “decline to accept”, the Authority considers that, in effect, the broadcaster declined to uphold the complaints because it provided reasons for its decision and advised the complainants of their right to refer the matter to the Authority for review. In these circumstances, the Authority considers that the broadcaster discharged its obligations under the Broadcasting Act 1989 and the complainant was not disadvantaged in any way. However, it reminds TVWorks that it cannot “decline to accept” legitimate formal complaints, and its use of the phrase is confusing for complainants.
 With respect to Ms James raising Standard 5 (accuracy) in her referral, the Authority notes that this standard did not form part of her original complaint, either explicitly or implicitly. Because the Authority’s task under the Broadcasting Act 1989 is to review the broadcaster’s decision, it has no jurisdiction to consider new matters raised at the referral stage. Accordingly, the Authority turns to consider Ms James’ complaint under Standards 1 and 9.
Standard 1 (good taste and decency)
 When the Authority considers an alleged breach of Standard 1, it takes into account the context of the broadcast. On this occasion, the relevant contextual factors include:
- the programme was broadcast at 6pm
- 3 News is an unclassified news programme
- the item was preceded by a warning
- the programme was broadcast during children’s normally accepted viewing times
- children are unlikely to watch news programmes unsupervised.
 In the Authority’s view, the footage from the “Boobs on Bikes” parade, while obviously not to everyone's tastes, was brief and not salacious. The shots of bare-breasted women were not dwelt on, and were shown from a distance.
 The Authority notes that the parade was a newsworthy event which had drawn a large crowd and finds that the report was matter-of-fact and focused mostly on the response of the crowd, as opposed to the women taking part. Further, the item was preceded by an explicit warning and was shown in the context of an unclassified news programme that children are unlikely to watch alone.
 Taking the above contextual factors into account, the Authority declines to uphold the complaint that the item breached Standard 1.
Standard 9 (children’s interests)
 The Authority has previously stated that unaccompanied young children are unlikely to watch news programmes (see, for example, Angus and TVWorks Ltd2). It notes that the item was preceded by an explicit verbal warning from the presenter that footage of bare breasts would be shown during the report. The Authority therefore considers that parents and caregivers were provided with a sufficient opportunity to decide whether to let their children view the item.
 Accordingly, the Authority finds that the broadcaster sufficiently considered the interests of child viewers, and it declines to uphold the complaint that the item breached Standard 9.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
21 December 2009
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Nina James’ formal complaint – 23 September 2009
2. TVWorks’ response to the formal complaint – 24 September 2009
3. Ms James’ referral to the Authority – 25 September 2009
4. TVWorks’ response to the Authority – 6 November 2009
1Decision No. 2006-109
2Decision No. 2009-009