Kelcher and Prime Television New Zealand Ltd - 2003-018, 2003-019
- P Cartwright (Chair)
- J H McGregor
- Tapu Misa
- R Bryant
- John Kelcher
BroadcasterPrime Television New Zealand Ltd
Channel/StationPrime TV # 2
Maximum Exposure – International Fight Club – clips of violent behaviour – breach of good taste – threatened standards of law and order – racist – inappropriate classification – unsuitable for children – excessive violence – Prime upheld complaint in part – apologised – removed series from broadcast – dissatisfied with action taken on aspects upheld – dissatisfied with aspects not upheld
(1) action taken on Standards 2, 7 and 10 – action taken insufficient – uphold
(2) Standard 1 – context – uphold
Standard 6 – not unfair to South American Indians – no uphold
Standard 9 – unsuitable for child viewers – uphold
Broadcast of statement
This headnote does not form part of the decision.
 Maximum Exposure – International Fight Club was broadcast on Prime at 8.30pm on Sunday 13 October 2002. The programme comprised clips of violent behaviour taken from security camera footage, amateur video and other sources, from around the world.
 John Kelcher complained to Prime Television New Zealand Ltd, the broadcaster, that the programme breached the standards relating to good taste and decency, the maintenance of law and order, fairness, appropriate classification, the protection of children and violence.
 In response, Prime upheld the complaint in part regarding law and order, programme classification and violence standards. It apologised to the complainant, and it advised that the series would not be broadcast until it had been classified. It declined to uphold the other aspects of the complaint.
 Mr Kelcher referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. The Authority has assumed that, he was dissatisfied with Prime’s action taken in response to those aspects upheld, and with Prime’s decision regarding those aspects of his complaint not upheld.
For the reasons below, the Authority upholds the complaint that the broadcast breached Standards 1 and 9 of the Television Code. It also upholds the complaint that the action taken by Prime, on those aspects it upheld, was insufficient.
 The members of the Authority have viewed a video of the programme complained about and have read the correspondence that is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Maximum Exposure – International Fight Club was broadcast on Prime at 8.30pm on Sunday 13 October 2002. The programme featured clips of acts of violence taken from security camera footage, amateur video and other filmed sources. The clips included back-street fighting, soccer riots, boxing and other filmed incidents of violent behaviour from around the world.
 Mr Kelcher complained that the programme breached the standards relating to good taste and decency, the maintenance of law and order, fairness, appropriate classification, the protection of children and violence.
 Mr Kelcher described the programme as "barbaric" and a "repulsive piece of work". He considered that the whole programme was "almost completely devoid of any moral sense". He argued that the scenes of violence were gratuitous, and portrayed in a manner so as to diminish standards of law and order. He wrote:
I found its "humorous" commentary arrogant and often in extremely bad taste. Video clips of real violence were repeated in a completely gratuitous way. Sound effects and graphic pointers were used to heighten the impact of the violence. The main thrust of the commentary is violence is funny and entertaining.
 Mr Kelcher described one clip shown as "sustained brutality", and said that the programme showed some of the "worst violence" he had ever seen on New Zealand television. In his view the "inane and jokey commentary" suggested to viewers that they should consider it as "entertaining".
 Given its time of broadcast, Mr Kelcher expressed his concern that children were likely to still be watching television at that time, and may have viewed the programme. He advised that the programme was classified as "G", and that he was "disturbed" that the programme was even deemed appropriate for broadcast.
 The programme also included documentary footage of traditional societies, engaging in their cultural rituals, which Mr Kelcher said was commentated in a "culturally arrogant" and racist manner. He cited one of the clips which related to the South American Indian harvest festival.
 He concluded:
As far as I am concerned Prime Television has put on air the worst piece of bad taste and violence I have ever seen on my screen. Their mistake is more than just a lapse of judgement. It shows a complete lack of understanding of the codes of common decency we expect in a civilised society. Maximum Exposure is a sick and voyeuristic example of television made purely for profit.
The screening of International Fight Club demands the maximum penalties available. If Prime Television has any integrity they will drop the series and dismiss the people responsible for broadcasting this extremely violent and exploitative "entertainment".
 Prime assessed the complaint under the standards nominated by the complainant. The Standards (and relevant Guidelines) in the Free-to-Air Television Code of Broadcasting Practice 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.
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 2 Law and Order
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.
2a Broadcasters must respect the principles of law which sustain our society.
2e The realistic portrayal of anti-social behaviour, including violent and serious crime and the abuse of liquor and drugs, should not be shown in a way that glamorises these activities.
Standard 6 Fairness
In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.
6g Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:
i) factual, or
ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or
iii) in the legitimate context of a dramatic, humorous or satirical work.
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.
Standard 10 Violence
In the preparation and presentation of programmes, broadcasters are required to exercise care and discretion when dealing with the issue of violence.
10a Broadcasters should ensure that any violence shown is not gratuitous and is justified by the context.
10b Broadcasters should be mindful of the cumulative effect of violent incidents and themes and should avoid any impression that violence is dominating a single programme, a programme series, or a line-up of programmes screened back-to-back.
The Broadcaster’s Response to the Complainant
 In responding to Mr Kelcher, Prime first considered that it was of "paramount importance" to establish what "audience demographics" watched the programme complained about. It advised that its research showed that Prime’s viewers were aged between 25 to 54, with a "secondary target audience" of those aged between 18 to 49 years.
 In declining to uphold a breach of Standard 1, Prime noted that viewers were familiar with programmes of the "reality" genre, and aware of their content. It acknowledged that the programme may not be considered "good taste". However, it said, in context the programme was mitigated by the genre and the time of broadcast.
 In relation to Standard 2, Prime did not consider that the programme encouraged the imitation of the behaviour shown, but it did uphold the complaint that the item glamorised anti-social behaviour. In upholding a breach of Standard 2, Prime wrote:
It must be acknowledged the content was realistic and often anti-social and the programme treated this behaviour in a mocking and at times sensational way. The effect was to trivialise behaviour that was violent and often seriously so.
 Prime did not uphold that aspect of Mr Kelcher’s complaint relating to the discrimination against South American Indians. In its view, the focus of the clip was on the fighting involved, "as opposed to the denigration of the worth of the ceremony and of that society".
 In relation to Mr Kelcher’s complaint about programme classification, it upheld that Standard 7 had been contravened. Prime advised that the programme had not been classified, and should never have been broadcast. Further, it said that as the programme had yet to be processed, there was no information published regarding its classification. "This is regretted given this episode would have had to air in the later slot if at all," Prime said.
 Dealing with the complaint that it had not been mindful of children’s viewing interests, Prime referred to its "viewer profile" research, and maintained that it did not attract child viewers. In addition, it submitted in mitigation that the programme was broadcast at 8.30pm on a Sunday evening. Accordingly, it declined to uphold this aspect of the complaint.
 Prime found that Standard 10 had been breached. In the context of a programme entirely about violence, and with no story-line, it acknowledged that it was unable to justify the content. It concluded "much of the violence to be gratuitous", in breach of Guidelines 10a and 10b.
 Prime upheld those aspects of the complaint concerning standards of law and order, programme classification and violence. It concluded:
This episode should never have aired at 8.30pm and indeed a question mark hangs over whether there is a suitable time at all. Prime Television sincerely apologises to you. The Committee has ruled Maximum Exposure be removed from the schedule as of Sunday December 8 until such time as classification of the remaining entire series is complete.
The Referral to the Broadcasting Standards Authority
 As Mr Kelcher did not explain the reasons for his referral, the Authority has assumed that it was on the basis that he was dissatisfied with Prime’s response on those aspects of the complaint not upheld, and with the action taken on the aspects upheld.
The Authority’s Determination
 Prime Television upheld Mr Kelcher’s complaint that the broadcast of the programme Maximum Exposure – International Fight Club breached Standards 2, 7 and 10 of the Television Code. Prime accepted that the programme glamorised anti-social behaviour, had not been classified, and was solely concerned with violence. Prime advised that the series had been removed from the schedule and would not be broadcast until it had been classified.
 The Authority concludes that Prime’s action, having upheld the complaint in relation to law and order, programme classification and violence, was insufficient. The Authority considers that the breach of broadcasting standards was serious, and that Prime’s actions did not demonstrate sufficient appreciation for the gravity of the offence.
 In examining the referral in regard to the standards under which Prime did not uphold the complaint, the Authority notes that when it determines a complaint that a broadcast contravenes Standard 1 of the Television Code, it is required to determine whether the material complained about breached 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 programme was broadcast.
 The Authority considers that the relevant contextual factors on this occasion include the time of the broadcast (at 8.30pm), and the collage of clips depicting violent behaviour, which was gratuitous and intended as entertainment. In the Authority’s view the material shown was outside current norms of good taste and decency because the footage shown was a sustained display of violence which was an affront to decency. The accompanying sensational and flippant commentary promoted and trivialised violence in a mocking manner.
 The Authority concurs with Mr Kelcher’s comments about the programme. It also notes and endorses Prime’s comment that:
This episode should never have aired at 8.30pm and indeed a question mark hangs over whether there is a suitable time at all.
Accordingly, the Authority concludes that the broadcast breached Standard 1.
 Turning to Standard 9, it is the Authority’s view that the material shown was likely to have disturbed and alarmed children. Given that the violence featured from the outset of the programme and the time of broadcast (at the start of the watershed), together with the prolonged nature and graphic depiction of violence, the Authority considers that Prime failed to show that it had considered the viewing interests of children.
 In relation to Standard 6, the Authority considered that the item did not encourage denigration or discrimination against South American Indians. It accepts that the focus of the clip was on the violence involved. Accordingly, it declines to uphold this aspect.
 The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision No. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion.
 For the reasons given in this decision, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of the complaint, including the nature of the complaint.
 In relation to the aspect of the complaint which was not upheld, the Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 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 1990). 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 and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the above reasons, the Authority upholds the aspect of the complaint that the programme Maximum Exposure – International Fight Club, broadcast by Prime Television New Zealand Ltd on 13 October 2002, breached Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice. The Authority also upholds the complaint that the action taken by Prime, on those aspects it upheld, was insufficient.
 Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. The Authority invited submissions from the parties. In so doing it asked Prime to reflect on the serious nature of the breaches which it considered occurred on the occasion of this broadcast.
 In his submission, Mr Kelcher maintained that the "flagrant breach" of broadcasting standards warranted an appropriate order. He asked that Prime be ordered to broadcast a statement regarding the Authority’s decision. Mr Kelcher maintained that a failure in its procedures was unacceptable and that "rigorous in-house systems need to be in place to prevent unsuitable material going to air." Mr Kelcher submitted that Prime should be restrained from advertising for 24 hours and he also suggested an order for costs.
 In its submission, Prime proposed that no order be imposed. It made this submission on the basis that the complaint had been treated as significant and very serious by staff. It wrote:
The appreciation of the gravity with which the Authority views this broadcast is acknowledged at the highest level of Prime Television with the Board and its Chairman involved in reviewing the steps that have been taken to ensure that our procedures will prevent a repetition of this error.
Prime stated that it "deeply regretted" its decision to broadcast the programme, and while it acknowledged the lapse in its procedures, it also noted that this was the "first instance of its kind." Prime advised that it had instituted more "robust internal procedures and management supervision". In view of the changes it had made following this complaint, it maintained that an order would be inappropriate.
 Having taken the submissions into account, the Authority concludes that an order is appropriate. It agrees with Mr Kelcher that the broadcast indicates that Prime’s procedures in relation to the broadcast of this programme were not adequate on this occasion. The Authority notes with approval that Prime has taken the complaint seriously. However, it considers that the gravity of the offending and the breach of broadcasting standards were serious. Accordingly, the Authority considers that the broadcast of a statement is the appropriate action.
Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders Prime Television New Zealand Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld. The statement shall be approved by the Authority and broadcast at a date and time to be approved by the Authority.
The Authority draws the broadcaster’s attention to the requirements 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.
Signed for and on behalf of the Authority
20 March 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
- John Kelcher’s Complaint to Prime Television New Zealand Ltd – 31 October 2002
- Prime’s Response to the Formal Complaint – 28 November 2002
- Mr Kelcher’s Referral to the Broadcasting Standards Authority – 3 December 2002
- Prime’s Response to the Authority – 13 December 2002
- Mr Kelcher’s Submission on Order – 21 February 2003
- Prime’s Submission on Order – 19 February 2003