Johnston-Faleauto and Television New Zealand Ltd - 2004-178
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Rosemary Johnston-Faleauto
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1)(a) of the Broadcasting Act 1989
Holmes – interview with central figure in reality television show There’s Something About Miriam – discussed her transsexual status and contact with contestants on show – allegedly breach of good taste and decency, programme classification and children’s interests
Principle 1 (good taste and decency) – contextual factors – nothing indecent or distasteful to the extent of breaching standard – interview conducted appropriately given subject matter – not upheld
Principle 7 (programme classification) – programme news or current affairs – not classified – was sufficiently mindful of the possibility of child viewers – no warning required as contents adequately signposted – not upheld
Principle 9 (children’s interests) – news and current affairs programme not directed at children – interview conducted appropriately – sufficiently mindful of children’s interests – not upheld
This headnote does not form part of the decision.
 On 21 July 2004, between 7.00 and 7.30 pm, Holmes presenter Paul Holmes interviewed “Miriam”, the central figure in the reality television show There’s Something About Miriam. That show featured six men competing for Miriam’s affection, who at the end of the show revealed that she had in fact been born a man, and in physical terms, remained as one.
 The interview covered a range of topics, but focussed on Miriam’s transsexual status and the reaction to its disclosure
 Rosemary Johnston-Faleauto complained to Television New Zealand Ltd, the broadcaster, that the broadcast breached Standards 1 (good taste and decency), 7 (programme classification) and 9 (children’s interests).
 Ms Johnston-Faleauto did not provide detailed submissions as to why she considered these standards to have been breached. She did however refer to extracts from the show that particularly concerned her:
- Miriam revealing that she was a “transvestite”, and the ensuing discussion about how she had had treatment to enlarge her breasts, but had not had surgery to remove her male genitals
- Miriam discussing how contestants in the reality show had been sexually attracted to her believing her to be a woman
- Miriam discussing certain contestants’ revelations to her that they had previously engaged in sexual acts with men.
 Ms Johnston-Faleauto concluded that the programme breached the standards required of programmes broadcast before 8:30pm.
Standards or Principles
 TVNZ assessed the complaint under Standards 1, 7 and 9 of the Free-to-Air Television Code of Broadcasting Practice. Those standards 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.
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.
7a Broadcasters should ensure that appropriate classification codes are established and observed (Appendix 1). Classification symbols should be displayed at the beginning of each programme and after each advertising break.
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.
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.
 Also relevant is the note to Appendix 1 to the Code, which states:
News and Current Affairs programmes, which may be scheduled at any time and may, on occasion, pre-empt other scheduled broadcasts, are not, because of their distinct nature, subject to censorship or to the strictures of the classification system. However, producers are required to be mindful that young people may be among viewers of news and current affairs programmes during morning, daytime and early evening hours and should give consideration to including warnings where appropriate.
Broadcaster's Response to the Complainant
 TVNZ declined to uphold the complaint. It noted that Holmes was a news and current affairs show that dealt with news items across a wide spectrum, “from the most momentous of items, to the relatively inconsequential (but none the less interesting)”. TVNZ noted that this item fell into the latter category and that:
Here was a fascinating human interest story, featuring a person of striking femininity who was physically a man. It was the opinion of the [complaints] committee that many viewers would find it hard to believe that the person they were watching and listening to was not a woman at all – although clearly drawn emotionally and psychologically towards the female gender.
 In relation to Standard 1 (good taste and decency), TVNZ noted the opinion of the committee that the item did not stray beyond the current norms of good taste and decency, especially in light of the manner in which the interview was handled. It noted that items involving issues of transgender have been shown in the past, sometimes in circumstances a “good deal more sordid” than the present case. TVNZ noted that there was no nudity involved and the brief sexual references were not something that a sexually innocent child would have understood.
 In relation to Standard 7 (programme classification), TVNZ noted that Holmes was a current affairs programme and was thus not classified in the way that entertainment programmes were. TVNZ noted that such programmes could not be expected to comply absolutely with the broad classification time bands in which they were screened.
 TVNZ referred to Appendix 1 to the Free-to-Air Code, which points to the need to be mindful of the interests of children who may be watching and to consider appropriate warnings. It noted that it felt a warning was not required in the present case, and indeed that a warning would have sent “a wrong and inappropriate message about this interview”.
 TVNZ noted that an alternative was to adequately “signpost” the fact that an item contained something “different”, and that this was done both in the opening headlines of Holmes and in the comments before the commercial break immediately preceding the interview. TVNZ noted that these comments strongly hinted that Miriam was not what she seemed to be.
 In relation to Standard 9 (children’s interests) TVNZ noted that the sexual references contained in the item would have gone over the heads of young children. It also considered it arguable that older children lived in a world where transgender people are “part of the lifestyle”.
 TVNZ also indicated that the item was within a current affairs programme, which would not be the “first viewing choice of an unattended child”. TVNZ noted that its research indicated that few children watched news or current affairs programmes, and when they did it was invariably in the company of adults.
Referral to the Authority
 Ms Johnston-Faleauto was dissatisfied with TVNZ’s response and referred the matter to the Authority. Ms Johnston-Faleauto’s referral was almost identical to her original complaint to TVNZ, although she did additionally note that the item contained reference to what she described as “explicit” sexual details about the reality show’s contestants’ previous sexual experiences.
Broadcaster’s Response to the Authority
 TVNZ made no further submissions in response to the complainant’s referral of her complaint.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
Good taste and decency
 In determining a complaint alleging that a broadcast has breached standards of good taste and decency, the Authority must consider the context of the item. In the present case, there are a number of important contextual factors relevant to the Authority’s decision:
- the programme was aimed primarily at adult viewers
- the broadcast contained no obscene or offensive language or behaviour
- while the interview did contain sexual references, it was conducted in a discreet and circumspect manner which did not unnecessarily highlight or emphasise the sexual content
- the likely nature of the interview was foreshadowed both at the start of the Holmes programme and then immediately prior to the advertisements that preceded the item.
 In light of the above factors, the Authority is of the view that there was nothing distasteful or indecent about the item to the extent that it threatened the standard. Overall, the Authority considers that the interview was conducted by the presenter with a reasonable degree of tact and restraint.
 For the above reasons, the Authority does not uphold that aspect of the complaint alleging that the item breached standards of good taste and decency.
 The complainant was concerned that the item contained material that was inappropriate to broadcast prior to 8.30 pm, at which time “AO” (adults only) programmes are able to be screened. TVNZ, in response, stated that as Holmes was a news and current affairs programme, in accordance with the Note to Appendix 1 of the Code, it was not subject to the classification system.
 The Authority agrees that Holmes was correctly categorised as a news and current affairs programme and thus was not required to conform with programme content classifications in the same way as other programmes.
 Accepting that this programme was appropriately categorised as news and current affairs, the Authority considers that the item did sufficiently recognise the possibility that children might be watching, as is required of news and current affairs programmes by the Note to Appendix 1. In coming to this view, the Authority again gave weight to the features referred to in paragraph  above, namely that while the interview contained some discussion of sexual matters, it was conducted in a discreet and circumspect manner that avoided undue focus on the sexual content. Moreover, the nature of the item was apparent from the foreshadowing earlier in the programme. In these circumstances, the Authority does not consider that a warning was required.
 In the Authority’s view, the care taken by the item was sufficient, in the context of a news and current affairs programme, to meet the standard required in the Note to Appendix 1. It does not uphold this aspect of the complaint.
 Standard 9 of the Free-to-Air Television Code states that broadcasters must, during children’s normally accepted viewing times, consider the interests of child viewers.
 The Authority considers that the item, broadcast within a current affairs programme that was unlikely to have been watched by unattended children, was not unduly explicit, and while there were brief sexual references, it did not dwell on the sexual content in a manner likely to be contrary to children’s interests.
 The Authority acknowledges that some parents may still have considered the sexual references and subject matter to have been inappropriate for children, but as the nature of the item had been well signposted before it appeared, it considers that parents and caregivers were given adequate opportunities to exercise discretion.
 For those reasons, the Authority considers that the broadcaster was sufficiently mindful of the interests of children as required by Standard 9 and does not uphold the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
25 November 2004
The following correspondence was received and considered by the Authority when it determined this complaint:
- Rosemary Johnston-Faleauto’s formal complaint to Television New Zealand Ltd – 4 August 2004
- TVNZ’s response to the formal complaint – 10 September 2004
- Ms Johnston-Faleauto’s referral to the Authority – 4 October 2004
- TVNZ’s response to the referral – 27 October 2004