BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Warning: this decision contains language that may offend

Summary  

[This summary does not form part of the decision.] 

The Authority has not upheld a complaint about offensive language and sexual themes in an episode of New Zealand Today, a satirical ‘journalism’ programme by comedian Guy Williams. The programme was broadcast at 8.35pm, classified 16-LSC (advisory for language, sexual content, and content that may offend), and preceded by a full-screen warning, with the classification and advisory labels repeated after each advertisement break. Given audience expectations of Williams and the programme, the classification, the warning and the scheduling, the Authority found the broadcast would not cause widespread undue offence in the context, and audiences were able to make their own informed viewing choices. The discrimination and denigration standard did not apply.

Not Upheld: Offensive and Disturbing Content, Discrimination and Denigration

The broadcast

[1]  An episode of New Zealand Today, a satirical news/investigative journalism programme by comedian Guy Williams, was broadcast on 14 March 2024 on Three. The episode focused on two ‘stories’: Williams’ determination to track down and interview ‘Jim’ of the Jim’s Mowing franchise; and an interview with the owner/operator of The Naked Baker, a lewd bakery in Christchurch that makes baked goods shaped like genitals.

[2]  The broadcast was preceded by a full-screen warning: ’16-LSC - May contain Language, Sexual Content, Content that may offend’. ’16-LSC’ was also displayed in the corner of the screen following each advertisement break.

[3]  The first segment about trying to find Jim of Jim’s Mowing included the following dialogue, relevant for the purposes of this complaint:

Williams:     …but it's not just Jim's mowing. It's Jim's cleaning, Jim's fencing, Jim's building. Jim's painting. He does everything. This is fucked.  

…

Vox-pop 1:  Mate if you fucking come to me one more time I'll knock you out.  

Williams:     All I needed was an address.  

…

Vox-pop 2:  Google it. Google it. Yeah. Jim's dog shit cleaning up or whatever it's called.  

Williams:     Frickin eh.  

Vox-pop 2:  Yeah we don't say ‘frickin eh’ here in Australia.  

Williams:     What do you say? Fucking eh?  

Vox-pop 2:  Nah that's more Canadian.  

Williams:     Fucking oath? Fucking struth?  

…

Williams:     Things were getting hostile, so I turned to the Australian version of Google Maps. 

‘Google Maps’ voiceover: Alright cunt, up ahead turn left. Yeah, there you go mate.

[4]  Upon finding Jim in Australia, Williams engaged in a lengthy interview with Jim, with a significant portion of the conversation concerning masturbation, ‘nocturnal emissions’ or wet dreams, and sperm/sperm donation, referred to throughout as ‘jizz’. Williams parodied a new off-shoot of Jim’s Group titled ‘Jim’s Jizz’.

[5]  The second segment on The Naked Baker included significant conversation about genitals and sexual content. Part of the segment featured Williams trying to sell or give away one of The Naked Baker’s products, Coffee for Cunts. Each instance of the word ‘cunt’ was bleeped in this segment. The segment also featured the following exchange, when talking with the owner about ideas he had for new bakery products:

Williams:     Fuck, yeah. So these are documents you've made.  

Naked Baker: These are what we use. 

Williams:     [Reading from list] Your moist clunge gets my mangina excited. Your swimmers aren’t winners. Two in the pink, one in the stink. Fart out of both holes baby. I will eat your [bleep] like a [bleep].  

[6]  A running gag was also featured where the footage appeared to get jammed on Williams about to eat a large penis-shaped cake, in a manner resembling fellatio.

The complaint

[7]  Ken Bowie complained the programme breached the offensive and disturbing content, and discrimination and denigration standards of the Code of Broadcasting Standards in New Zealand:

• ‘I am appalled at the content of "NZ Today", by that idiot Guy Williams. I am appalled that anyone would allow the programme to be aired, and therefore further appalled that such low standards can be reached. Who on earth censors this? His pre-occupation with masturbating, be it humans or animals, points to a severe mental illness - and yet you seem to condone this.’
• ‘I have commented on this programme to friends, & they are equally appalled that this programme is acceptable to you, and whoever else is involved in allowing such low standards.’

[8]  On referral to the Authority, Bowie raised the balance and accuracy standards in addition to the initial standards raised, and provided extensive further submissions on his complaint, including the following:

• ‘[Williams’] language (f-word continuously), topic matters generally, reference to "jacking off horses"- or bulls, and appalling rude treatment of some people interviewed, has reached gutter level. Eating the "cock & balls" cake… was a shocker.’
• ‘NZers stand for, and actually are, of a far higher quality than any TV3 staffer who is, or would be, involved in this production. The same can be said for anyone from the Broadcasting Standards Authority who finds it acceptable.’
• ‘I find the overuse of the word(s) by Guy Williams beyond the pale, and totally unnecessary. His demeaning, ridiculing, and overbearing manner when interviewing people is also abhorrent… Or playing fellatio with a cake shaped like a penis. Weird. If that’s what he does in private, we don’t need to see it.’
• Some other comedy programmes and comedians ‘use the f- word, but it never seems so offensive, appalling, or out of place as in “NZ Today”.’

[9]  Bowie also provided a letter to the editor in the Southland Times concerning another episode of New Zealand Today which he considered supported his complaint,¹ as well as a news article concerning his complaint.²

Jurisdiction

Specific broadcast

[10]  The initial complaint mentioned three episodes of New Zealand Today with no identifying information provided except for the date of 14 March 2024. The broadcaster only responded to the complaint in relation to the 14 March 2024 episode.

[11]  In his referral to the Authority, Bowie attempted to complain about the entire series of New Zealand Today. Complaints about broadcasting standards must relate to a specific programme and include enough details to reasonably enable identification of the broadcast.³ We consider the initial complaint to the broadcaster was only sufficiently specific in relation to the 14 March 2024 programme – with no other dates being mentioned. On this basis our decision is limited to that episode.

Scope of complaint – standards raised 

[12]  On referral to the Authority, the complainant also raised the balance and accuracy standards. These standards were not raised in his initial complaint. The Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording of the initial complaint, and where it is reasonably necessary in order to properly consider the complaint.⁴

[13]  In this instance we do not consider it appropriate or necessary to imply these standards into the complaint, for two reasons. First, Bowie’s complaint clearly relates to the acceptability of the language and content in New Zealand Today, rather than the inclusion of significant perspectives on a controversial issue of public importance or accurate reporting of facts. Second, the balance and accuracy standards only apply to news, current affairs and factual programmes. While New Zealand Today does include elements of pseudo-journalism, it is clearly a comedic, irreverent and satirical programme that cannot reasonably be classified as falling within the definition of news and current affairs, nor assessed against the objectives of the balance or accuracy standards.

The broadcaster’s response

[14]  Warner Bros. Discovery (WBD) did not uphold the complaint for the following reasons:

• WBD considered the following contextual factors were relevant:
  • ‘The episode was classified 16-LSC. Programmes classified 16 (People under 16 years should not view) contain stronger material or special elements which are outside the M classification. These programmes may contain a greater degree of sexual material, offensive language, realistic violence, and stronger adult themes. 16 programmes may be screened after 8.30 pm until 5 am.’
  • ‘The episode was preceded by a full-screen visual warning: 16-LSC May contain language, Sexual Content and Content that may offend.’
  • ‘The classification symbol 16-LSC was shown on screen at the beginning of the programme and after each commercial break.’
  • ‘New Zealand Today is a local programme featuring Guy Williams who is known for his satirical and irreverent perspective on current events and popular culture. It was developed from the popular 'New Zealand Today' segment on the Jono and Ben show.’
  • ‘New Zealand Today has previously screened for three seasons on Three and this Broadcast is the sixth episode of the new fourth season. It targets adult viewers and there is a high level of expectation that it regularly contains challenging content for the amusement of its older target audience.’
  • ‘The Broadcast contained legitimate satire. Humour is subjective and what may not be funny to some viewers, is to others. There was no intention to offend in the Broadcast and we are sorry it was not to your taste.’
  • ‘[WBD] is satisfied that the content included in the Broadcast is acceptable for inclusion in a programme classified 16 with content advisories for coarse language, sexual content and content that may offend.’
  • ‘The Broadcasting Standards Authority has previously determined that the series did not breach broadcasting standards for similar material in decision 2021-064.’
• ‘[WBD] is satisfied that viewers had ample information to make an informed viewing decision that reflected their own sensibilities. [WBD] also considers there to be a very high level of audience awareness of the show’s nature and therefore a high level of expectation that it regularly contains challenging content.’
• ‘The purpose of this standard is not to prohibit challenging material, or material that some people may find offensive. Its purpose is to ensure sufficient care is taken so that challenging material is played only in an appropriate context, and that the challenges are not so offensive that they are unacceptable regardless of context.’
• ‘we appreciate that the series is clearly not to Mr Bowie's personal viewing tastes however, we maintain that should not mean the series is denied to a significant audience who do enjoy Guy Williams' comedy. At a time when New Zealand voices and representation on-screen are under increasing and significant threat, we maintain that New Zealand Today has an important part to play in the wider New Zealand media landscape.’

The standards

[15]  The purpose of the offensive and disturbing content standard⁵ is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.⁶ The standard takes into account the context of the programme, and the wider context of the broadcast, as well as information given by the broadcaster to enable the audience to exercise choice and control over their viewing or listening. Guidance to the standard states:

• Broadcasters must schedule programmes responsibly, giving careful consideration to the likely and target audience, children’s interests, the audience’s ability to exercise choice and control, and all applicable broadcasting standards.⁷
• Where broadcasters provide consistent, reliable information to audiences about the nature of their programmes, and enable them to exercise choice and control over their own and their children’s viewing or listening, they are less likely to breach standards.⁸

[16]  The discrimination and denigration standard⁹ protects against broadcasts which encourage the discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.

Our analysis

[17]  We have watched the broadcast and read the correspondence listed in the Appendix.

[18]  When we consider a complaint about broadcasting standards, our starting point is to recognise the importance of the right to freedom of expression, which is protected by the New Zealand Bill of Rights Act 1990. This includes both the broadcaster’s right to offer ideas and information and a range of programmes, and the audience’s right to receive those.

[19]  Programmes that feature humour and satire, such as New Zealand Today, are generally recognised as protected forms of speech on which society places value. As many past Authority decisions, as well as guidance and commentary to the Code, highlight, we are not ‘arbiters of taste’. It is not the role of the Authority to decide what is funny or of a ‘low standard’ or to make decisions on that basis. We may only intervene and uphold a complaint where we find actual or potential harm caused by the broadcast, at a level which justifies regulatory intervention and placing a reasonable limit on freedom of expression.¹⁰

[20]  For reasons set out below, we have not found harm of that level in this case and do not uphold the complaint.

[21]  Our decision focuses on the offensive and disturbing content standard, which we consider to be most applicable to the complainant’s concerns. We deal briefly with the discrimination and denigration standard at [37].

Offensive and Disturbing Content

[22]  The context of the broadcast is crucial to our assessment of potential harm under the offensive and disturbing content standard, including steps taken by the broadcaster to inform audiences of the nature of the programme. The harm alleged in this case is the inclusion of significant amounts of bad language and content with sexual themes in New Zealand Today, which, in essence, the complainant considers to be of low standard and low quality, and not worthy of broadcast.

[23]  We considered the following contextual factors were relevant in this case:

The broadcast’s classification

• The programme was classified 16, defined as containing ‘stronger material or special elements which are outside the M classification’ and which ‘may contain a greater degree of sexual material, offensive language, realistic violence, and stronger adult themes’.¹¹
• The programme carried audience advisories for language, sexual content and content that may offend.
• The classification and advisories were shown at the beginning of the programme in a full screen display for approximately 10 seconds.
• A small logo stating ’16-LSC’ was displayed in the corner of the screen for approximately 5 seconds following each advertisement break.

The time of broadcast

• The programme screened outside of children’s normally accepted viewing times, at 8.35pm.¹²
• Content rated 16 may be broadcast after 8.30pm.¹³

The target and likely audience

• The programme is aimed at an adult audience, as submitted by the broadcaster and evidenced by the rating and timeslot.
• We noted the programme included Williams’ interactions with children in school uniform. The Authority has previously expressed concern that the inclusion of identifiable children in adult programmes (with adult themes and humour), may entice those children or their friends/schoolmates to watch. However, exercising choice and control over children’s viewing remains the responsibility of parents/caregivers for broadcasts outside of children’s normally accepted viewing times.¹⁴

Audience expectations of the programme

• New Zealand Today has screened for four seasons,¹⁵ and has a significant online presence.¹⁶ Host Guy Williams is a well-known New Zealand comedian. On this basis there is a high level of awareness of the programme and the type of content it is likely to contain.

Other factors

• There was, in our view, little legitimate public interest (something that would have a significant potential impact on, or be of concern to, New Zealanders) in the particular dialogue and sexual material complained about.
• The programme was preceded by talk show The Graham Norton Show and was followed by comedy programme Just for Laughs (both classified M).
• The programme was pre-recorded.

[24]  We acknowledge New Zealand Today contained material the complainant found offensive and that was not to the complainant’s taste or humour.

[25]  However, the offensive and disturbing content standard does not prohibit offensive content from being broadcast outright. Nor does it dictate what programmes or types of humour ought to be broadcast or not broadcast, or what amounts to a programme of low quality or high quality.

[26]  Our task is to consider the value of the programme as an exercise of the right to freedom of expression, and whether that was outweighed by any potential harm, in the context. Key considerations are whether the content complained about was outside audience expectations for the type of programme or the programme classification, and whether the audience was able to exercise adequate choice and control over the content they are consuming.

[27]  In this case, we consider the key question is whether the level of content in this episode was appropriately classified 16, or whether it justified an 18 classification – which would mean the audience was not given reliable information to regulate their own viewing. The 18 classification is defined in the Code as:¹⁷

Programmes containing themes which may be challenging or offensive even to some adult viewers.

[28]  We have concluded overall, that the level of offensive language and the discussion and depiction of content with sexual themes did not exceed New Zealand Today’s classification of 16-LSC, however this broadcast was nearing the upper limit of obscenity allowed in this rating and timeslot. While some of the language and sexual references were gratuitous or unnecessary, their inclusion was not, in our view, outside of audience expectations for the programme or Williams, or for programmes with this level of classification screened in this timeslot.

[29]  With respect to the sexual material in the programme, we note it was in the context of a satirical news programme intended for humour and entertainment. It was predominantly verbal references and innuendo, rather than visual (with the exception of the parodied ‘jammed’ footage of Williams eating a penis cake). In the case of Jim’s Mowing, it appeared to be the interviewee who initially introduced the topic of ‘nocturnal emissions’ and their link to success (with Williams then carrying on that discussion and parodying ‘Jim’s Jizz’). In the case of The Naked Baker, adult references were not unexpected given the bakery’s premise as a lewd bakery. There were no visually explicit sexual acts or sex scenes that may warrant an 18 classification.

[30]  Turning to the language used in the episode, we note the broadcast included the following instances of potentially offensive language:

• Variations of ‘fuck’ – 15 times
• ‘Jizz’ – 10 times
• ‘Cock’ – 4 times
• ‘Shit’ – 2 times
• ‘Moist clunge’ – 2 times
• ‘Cunt’
• ‘Cunt’ (bleeped) – 7 times
• ‘Wank’
• ‘Fit it up your ass’
• ‘Chode’.

[31]  The Authority’s 2022 survey on Language that may offend in broadcasting¹⁸ found: ‘cunt’ was the second most offensive word, with 57% of respondents saying it was inappropriate in all scenarios; ‘cock’ was the 25th most offensive, with 38% saying it was inappropriate in all scenarios; and ‘fuck’ was 26th most offensive, with 37% saying it was inappropriate in all scenarios. Other terms in the broadcast were not included in this survey.

[32]  However, the survey also highlights the importance of context in assessing potential offensiveness. Ratings for these words were lower when considered in the context of an adult comedy programme broadcast after 8.30pm.¹⁹ The broadcaster also took the step of censoring the most offensive word (‘cunt’) in all but one instance. The Authority has previously found that programmes screened at 8.30pm that included this term did not breach standards,²⁰ and attitudes towards the term have softened over time.²¹

[33]  Viewing the broadcast as a whole and in light of the above contextual factors, we consider the level and frequency of coarse language – over the course of a 30-minute programme – did not tip over into being so frequent or explicit or outside of expectations that it justified an 18 classification or a later timeslot.

[34]  Having found the classification was correct, we concluded sufficient information was available to the audience about the level of content and nature of the programme, through the classification and advisories prior to the programme and following each ad break, and expectations of Williams and the programme, to enable them to make informed viewing choices.

[35]  In this context we consider the broadcast was not likely to otherwise cause widespread disproportionate offence or distress, or undermine widely shared community standards, in breach of the offensive and disturbing content standard.

[36]  Accordingly, we have not found sufficient potential harm caused by the broadcast to warrant regulatory intervention, and consider upholding the complaint would unreasonably limit the right to freedom of expression on this occasion.

Discrimination and Denigration

[37]  The discrimination and denigration standard is aimed at content that encourages discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief. The complaint did not identify any section of the community as being harmed by the broadcast of New Zealand Today, and on this basis the standard does not apply.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
16 July 2024   

Appendix

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

1  Ken Bowie's formal complaint to WBD - 14 March 2024

2  WBD's decision on the complaint - 8 April 2024

3  Bowie's referral to the Authority - 22 April 2024

4  Bowie's email correspondence with Authority staff regarding jurisdiction over series - 24-29 April 2024

5  Bowie's further comments - 7 May 2024

6  WBD's further comments - 9 May 2024

7  Bowie's further comments - 21 May 2024

8  WBD confirming no further comments - 21 May 2024

9  Bowie's comments on news article - 23 May 2024

¹ Val Goffe “Wrongheaded complaint” Stuff (online ed, 7 May 2024)
² Michael Fallow “Southlander complains to BSA about Guy Williams’ New Zealand Today” Stuff (online ed, 21 May 2024)
³ Te Mana Whanonga Kaipāho | Broadcasting Standards Authority “What’s a formal complaint”
⁴ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
⁵ Standard 1, Code of Broadcasting Standards in New Zealand 
⁶ Commentary, Standard 1, Code of Broadcasting Standards in New Zealand, page 8
⁷ Guideline 1.13
⁸ Guideline 1.3
⁹ Standard 4, Code of Broadcasting Standards in New Zealand
¹⁰ Introduction, Code of Broadcasting Standards in New Zealand, page 4
¹¹ Guideline 1.4
¹² Guideline 2.1
¹³ Guideline 1.16
¹⁴ Gordon and TVworks Ltd, Decision No. 2009-139 at [27]
¹⁵ ThreeNow “New Zealand Today” (accessed 28 May 2024)
¹⁶ YouTube “New Zealand Today” (accessed 28 May 2024)
¹⁷ Guideline 1.4
¹⁸ Te Mana Whanonga Kaipāho | Broadcasting Standards Authority “Language that may offend in broadcasting” (17 February 2022) see page 11
¹⁹ As above, page 25
²⁰ Holden and Television New Zealand Ltd, Decision No. 2011-029; Findlay and Television New Zealand Ltd, Decision No. 2008-071
²¹ Te Mana Whanonga Kaipāho | Broadcasting Standards Authority “Language that may offend in broadcasting” (17 February 2022) see page 8