BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Criminal Minds – storyline involved an Alzheimer’s sufferer who enlisted the help of his son to capture, torture and kill young blonde women – allegedly in breach of good taste and decency, responsible programming, children’s interests and violence standards

Findings
Standard 8 (responsible programming) – violence was graphic and deeply disturbing – amounted to stronger material which warranted AO 9.30pm classification – upheld

Standard 10 (violence) – programme should have been broadcast later – warning was not adequate – broadcaster did not exercise adequate care and discretion when dealing with the issue of violence – upheld

Standard 1 (good taste and decency) – programme material warranted higher classification – warning was inadequate – level of violence and menacing themes were more extreme than in other 8.30pm crime dramas – upheld

Standard 9 (children’s interests) – no strong adult material shown close to 8.30pm watershed – broadcaster adequately considered the interests of child viewers – not upheld

No Order

This headnote does not form part of the decision. 

Broadcast

[1]  An episode of Criminal Minds, a fictional drama series about the FBI’s Behavioural Analysis Unit, was broadcast at 8.30pm on TV One on Monday 31 January 2011. The storyline involved an Alzheimer’s sufferer who was enlisting the help of his son to capture, torture and kill young blonde women. A number of times during the episode photos were shown of the victims.

[2]  At approximately 9pm, one of the victims was shown tied to a table, screaming as the killer tortured her. The killer said to his son, “I’ll show you how to kill” and he was shown stabbing the woman for approximately 5 seconds, who could be heard screaming and was shown from the waist down writhing in pain.

[3]  The programme was preceded by the following verbal and visual warning:

This programme is rated Adults Only. It contains violence that may disturb some people.

Complaint

[4]  Imelda King made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme breached standards relating to good taste and decency, responsible programming, children’s interests and violence.

[5]  Ms King argued that the killings in the programme were “sexually sadistic and we saw one young woman stabbed repeatedly as her legs writhed with each stab”. She noted that the episode also contained the murder of the killer’s wife, while the son watched at age 10. Ms King noted that the programme was scheduled for 8.30pm “when young and immature minds are watching” and argued that “not all viewers are rational and capable of good judgement”. She considered that the programme showed “blatant violence against women” and that the scheduling of violent programmes should be reviewed.

Standards

[6]  Ms King nominated Standards 1, 8, 9 and 10 of the Free-to-Air Television Code of Broadcasting Practice in her complaint. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 8 Responsible Programming

Broadcasters should ensure programmes:

• are appropriately classified;
• display programme classification information;
• adhere to timebands in accordance with Appendix 1;
• are not presented in such a way as to cause panic, or unwarranted alarm or undue distress; and
• do not deceive or disadvantage the viewer.

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters should consider the interests of child viewers.

Standard 10 Violence

Broadcasters should exercise care and discretion when dealing with the issue of violence.

Broadcaster’s Response to the Complainant

[7]  TVNZ argued that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was shown, including the programme’s classification, time of broadcast, intended audience, and the use of warnings. It noted that on this occasion, Criminal Minds was classified Adults Only and was preceded by a written and verbal warning “that gave notice [of] adult, violent material that may disturb some viewers”. TVNZ maintained that 8.30pm was not considered “children’s viewing time”. It argued that the series, now in its sixth season, was well known to viewers so there was considerable audience expectation about the type of material it would contain, and also about the content of similar AO 8.30pm crime programmes. In particular, it said that while some of the material was “dark”, this type of material was an expected part of criminal dramas. It also noted that these types of programmes were very popular with some viewers. TVNZ was of the view that the programme did not endorse the killer’s actions in any way, noting that the BAU unit worked hard to find the killer and save the girl he had taken.

[8]  With regard to the murder scene subject to complaint, TVNZ noted that it was shown after 9pm and was the only murder shown in the episode. It said that the woman was stabbed twice, but “the impact wounds are not shown – the view is from behind so that the audience sees her killer’s back and her legs for some of the footage; the second stab shows only the killer’s face and torso”. TVNZ maintained that this type of material was acceptable in an AO-rated programme preceded by a warning for violence. It considered that it would have been “expected” because “the hunt was for this killer and his ‘signature’ [stabbing women] was discussed”, and also based on audience expectations of Criminal Minds and other police dramas.

[9]  TVNZ concluded that the programme did not breach Standard 1.

[10]  With regard to Standard 8, TVNZ noted that Criminal Minds was rated AO and the rating was shown at the beginning of each programme segment, and that a warning for violence was given in accordance with guideline 8a. It declined to uphold the Standard 8 complaint.

[11]  Looking at Standard 9 (children’s interests), the broadcaster maintained that after 8.30pm was not considered “children’s normally accepted viewing times”, especially on a Monday night during the school term. It was of the view that it had adequately considered children’s interests by classifying the episode AO and screening a warning for violence. It reiterated that the likely content of Criminal Minds and other programmes of the same genre should be well known to viewers. While the episode contained discussion of the crimes and crime scene photos, as well as a brief murder scene after 9pm, this material would have been expected in the episode and in this genre, TVNZ argued. It therefore declined to uphold the complaint under Standard 9.

[12]  The broadcaster maintained that the violence in the programme was acceptable in an AO-rated programme screened at 8.30pm and preceded by a written and verbal warning for violence. It considered that care and discretion were taken with the footage in the programme, and noted that while the storyline involved a serial killer who tortured and killed women, footage of this was not shown until after 9pm. It said, “After this time a woman is shown being electrocuted once and the viewer sees the killer make two stabbing motions towards the woman but impact shots are not shown. This type of footage does not dominate the episode.”

[13]  TVNZ again noted that there was considerable audience expectation about the type of material shown in Criminal Minds as it was in its sixth season, this type of criminal drama was very popular with some viewers, and there were many popular programmes of this genre that had screened at 8.30pm.

[14]  TVNZ therefore declined to uphold the complaint under Standard 10.

Referral to the Authority

[15]  Dissatisfied with the broadcaster’s response, Ms King referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. She objected to the presentation of an Alzheimer’s sufferer murdering women as entertainment and argued that “this is the domain of forensic psychiatry not of the lay person in their lounge viewing what can only be seen as sub-human behaviour as entertainment”. Ms King maintained that the programme was broadcast too early as many young people were still watching at that time, especially during daylight saving.

Authority’s Request for Further Information from the Broadcaster

[16]  We asked the broadcaster to provide us with details of Criminal Minds’ classification and time of broadcast for all six series.

[17]  TVNZ responded that Criminal Minds was broadcast at 8.30pm for all six series from 2006 to 2011, and that repeats screened throughout the schedule, often in a later timeslot. It said the later timeslot was due to the material not being “first run”, rather than the programme content. It noted that the programme also screened in Australia at 8.30pm, which it said was the closest comparable television market to New Zealand. It provided the Authority with copies of other television programmes of the same genre which also screened at 8.30pm during the first week of April. It reiterated its view that the material in the episode subject to complaint was consistent with the expectations of that genre screening across channels at 8.30pm. 

[18]  The broadcaster provided a ratings profile of the audience for Criminal Minds, which showed that most viewers were aged 40 years and over, and that child viewers constituted a very small percentage. It noted that, for the episode in issue, there were no viewers aged between 5 and 9 years. It said that children were not watching the series, and maintained that it was not aimed at, nor attractive to, child viewers. The broadcaster noted that TV One was targeted at adult viewers aged between 25 and 54 years and that scheduled programming was designed to appeal to, and accord with, the expectations of this audience.  

[19]  TVNZ reiterated that, by virtue of section 14 of the Bill or Rights Act 1990, viewers had the right to receive information and view programmes that were interesting and entertaining, and that broadcasters had the right to broadcast such material. It noted that the right to freedom of expression may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (Bill of Rights Act, section 5). The broadcaster referred to the following Bill of Rights commentary:¹

... the key question is how to reconcile the freedom of expression and the state’s interest [in protecting its citizens from harm] and whom and what it wants to protect in a manner that avoids unduly chilling acceptable expression; yet rationally and proportionately targets harmful expression both at a systematic level and as applied to a particular publication.

[20]  The broadcaster asserted that the Authority must show “real restraint” in upholding complaints where it would limit freedom of expression and must demonstrate that the limit is justified in accordance with the Bill of Rights.

[21]  TVNZ argued that, in the case of Criminal Minds, it was a high rating show enjoyed by adult viewers which had been screening at 8.30pm for a number of years. It said that there was considerable audience expectation of the likely format and content of the series. The broadcaster said that the programme was largely “unremarked upon and not complained about” so there was no indication from the viewing community that such material was unacceptable.

[22]  The broadcaster also noted that the Authority had previously ruled that such material was acceptable for broadcast at 8.30pm.² It considered that the episode subject to complaint was very similar in expectation and content to an episode previously complained about as well as to other material currently screened across broadcasters at 8.30pm. TVNZ argued that there was no reason to “deviate from commonly held industry expectations of the precedent for this genre based on the type of material that has screened consistently in this genre at 8.30pm and the formal complaint precedent from the Authority”.

Authority’s Determination

[23]  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.

General Comments

[24]  At the outset, we acknowledge that the broadcaster has the right to freedom of expression under section 14 of the Bill of Rights Act 1990. We acknowledge the importance of section 14 and the values underlying the right to freedom of expression. Any restriction on the broadcaster’s right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[25]  In considering whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold the complaint on this occasion, we note that the following contextual factors all favour the broadcaster’s decision to broadcast this episode of Criminal Minds:

• the programme was classified Adults Only
• the programme was preceded by a verbal and written warning for “violence that may disturb”
• the expectations of regular viewers of Criminal Minds
• audience expectations of the crime drama genre, which lends itself towards more challenging content.

[26]  We also acknowledge that Criminal Minds is now into its sixth season, so that regular viewers of the programme are familiar with its content, and that it has screened at 8.30pm for a number of years. Against these factors, we must weigh the objective and significance of the broadcasting standard concerned, and the extent to which upholding the complaint would limit the broadcaster’s right to freedom of expression.

[27]  TVNZ argued that viewers know what to expect of the crime and police drama programmes in general, many of which screen at 8.30pm. In our view, other programmes of the crime drama genre, such as CSI, NCIS, Cold Case, Bones and Castle typically involve an element of humour, an ongoing romantic tension between some of the characters, and the investigation each week of different events including accidental death, manslaughter and murder. These programmes are not characterised by the horrific, sadistic serial killings which are the subject matter of Criminal Minds. Criminal Minds focuses on murders by sinister and depraved serial killers that come to the attention of the specialist Behavioural Anaylsis Unit of the FBI. In our view, it contains by far the strongest material of any of the crime dramas shown on free-to-air television.

[28]  We also note that, in Archibald and TVNZ,³ which concerned a complaint about the “psychological torture” in an earlier episode of Criminal Minds, the Authority observed that the episode contained “very little actual violence”. One member of this Authority, who is an avid viewer of the programme, is of the view that there has been a significant increase in the level of violent material as the series has progressed, and that the content has become increasingly dark and disturbing.

[29]  Against this background, we now turn to consider the standards raised by Ms King. We wish to emphasise that whether or not we find a breach of broadcasting standards on this occasion, will depend on the particular content of the episode in issue.

Standard 8 (responsible programming)

[30]  Standard 8 requires that programmes and promos are correctly classified and screened in appropriate time-bands. Criminal Minds was classified Adults Only and broadcast at 8.30pm. In order for us to find a breach of Standard 8, we would need to make a finding that the programme required a higher classification of AO 9.30pm. The AO and AO 9.30pm classifications are defined in Appendix 1 of the Code as follows:

AO – Adults Only

Programmes containing adult themes and directed primarily at mature audiences.

AO 9.30pm – Adults Only 9.30pm – 5am

Programmes containing stronger material or special elements which fall outside the AO classification. These programmes may contain a greater degree of sexual activity, potentially offensive language, realistic violence, sexual violence, or horrific encounters.

[31]  In our view, the storyline for this episode of Criminal Minds, which involved an Alzheimer’s sufferer who was enlisting the help of his son to capture, torture and kill young women, clearly contained realistic violence and horrific encounters amounting to “stronger material” which warranted a higher classification and a later time of broadcast.

[32]  The adult themes in the programme, namely the methods of a serial killer, who was kidnapping, torturing and killing women, were sinister and deeply disturbing. We consider that the violence in the episode, which depicted the offender duping women in order to capture them, strapping them to a table, torturing them by electrocution and other methods, and stabbing them, was graphic and left little to the imagination. We disagree with the broadcaster’s contention that the violence was mitigated because the instances when violent contact was made was not shown, in particular in the stabbing scene identified by Ms King. Editing out the moment of impact did not minimise the realistic and disturbing nature of the violence, especially when the audio that accompanied the violent contact was still present, as well as visuals of the woman’s body reacting.

[33]  In these circumstances, we also consider that the warning for “violence that may disturb” was not sufficiently specific to prepare viewers for the horrific nature of the violent content in the episode. It was, in our view, of an extremely cruel, calculated and depraved nature, with sinister undertones. In our opinion, the episode should have contained a more specific warning for “graphic violence”.

[34]  Accordingly, we have reached the conclusion that this episode of Criminal Minds was incorrectly classified AO, and should have been classified AO 9.30pm and screened in a later timeslot.

Standard 10 (violence)

[35]  Standard 10 states that broadcasters should exercise care and discretion when dealing with the issue of violence.

[36]  We have found above that the violence in the programme was graphic and disturbing, and part of a sinister plot line, amounting to strong adult material which should have been broadcast in a later timeslot. We are also of the view that the pre-broadcast warning for “violence that may disturb” was not sufficiently specific to alert viewers to the type of content the programme might contain. We agree with the complainant that the storyline for this particular episode contained elements of sadism which required a greater level of care.

[37]  Accordingly, we are satisfied that the broadcaster did not exercise adequate care and discretion when dealing with the issue of violence.

Standard 1 (good taste and decency)

[38]  When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• the programme was broadcast at 8.30pm during the AO time-band
• it was classified AO
• the murder scene subject to complaint occurred at approximately 9pm
• the programme was preceded by a verbal and written warning for “violence that may disturb”
• the expectations of regular viewers of Criminal Minds
• audience expectations of the genre.

[39]  As we have already acknowledged, there are a number of contextual factors which favour the broadcaster’s position, including the classification, an adult target audience, and the expectations of regular viewers, both of the programme and of the crime drama genre. These factors, however, will not always be sufficient to prevent a programme breaching standards of good taste and decency.

[40]  We have found above that the strong adult content and the realistic violence in the programme warranted a higher classification and a later time of broadcast. While the programme was preceded by a warning for “violence that may disturb”, we consider that it was not adequate to prepare viewers for the horrific and calculated nature of the violence depicted in the episode.

[41]  We have also expressed our view above that the content of other crime programmes screened at 8.30pm is far less violent and challenging than the content in this episode Criminal Minds.

[42]  We have therefore reached the conclusion that the broadcast of this episode of Criminal Minds was not consistent with current norms of good taste and decency in the context in which it screened.

Bill of Rights

[43]  Having reached the conclusion under these standards that the episode was incorrectly classified and screened too early in the evening, we must now consider whether to uphold the complaint under Standards 1, 8 and 10.

[44]  As already stated above, we acknowledge that upholding the complaint would place a limit on the broadcaster’s right to freedom of expression. The Authority has previously determined that upholding a complaint under Standard 8, Standard 10 or Standard 1 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.[4] 

[45]  Those decisions also outlined the objectives of Standards 1, 8 and 10. The responsible programming standard exists to ensure, among other things, that broadcasters correctly classify programmes so that viewers are sufficiently informed as to their likely content. The violence standard ensures that broadcasters use care and discretion to exclude unsuitable violent material and to promote the use of warnings where necessary to protect viewers. The primary objective of Standard 1 is to protect against the broadcast of sexual content, violent material, and language that exceeds current norms of good taste and decency in the context in which it was shown.

[46]  We consider that these objectives are important. Viewers or listeners should be able to make informed choices about the kind of broadcast material they consume, and have the right not to be offended by, and to be protected from, material which exceeds their expectations in the context in which it is shown.

[47]  We have found above that this episode of Criminal Minds contained disturbing adult themes and graphic violence which went beyond what viewers would expect to see at 8.30pm on free-to-air television. The pre-broadcast warning would not have adequately prepared viewers for the horrific nature and graphic depiction of violence, and the level of violence in the programme warranted a higher classification and a later time of broadcast. In this respect, upholding the complaint clearly promotes the objectives of the three standards.

[48]  We also consider that upholding the complaint would not place a significant limit on TVNZ’s right to freedom of expression. We appreciate that Criminal Minds is a very successful and popular series, and we are not suggesting that the episode should have been heavily edited, or should not have been broadcast. Our finding simply indicates that the nature of the themes and the level of violent material in this particular episode of the series deserved a higher classification, and should have been screened in the later timeslot of 9.30pm.

[49]  Having weighed all of the considerations outlined above, including the factors in paragraphs [24] to [28], we have reached the conclusion that the complaint should be upheld under Standards 1, 8 and 10, and that doing so would be a reasonable and proportionate limit on TVNZ’s freedom of expression.

Standard 9 (children’s interests)

[50]  Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm. Criminal Minds was classified AO and broadcast after the 8.30pm watershed, so we would only find a breach of Standard 9 if strong adult material was broadcast close to the watershed (guideline 9b).

[51]  In our view, while Criminal Minds contained strong material, this content was not explicitly depicted at the beginning of the programme. The graphic violence that we have referenced above did not appear until closer to 9pm.

[52]  Accordingly, we find that the broadcaster did not screen strong adult material too close to the watershed, and that it therefore adequately considered the interests of child viewers. We therefore decline to uphold the complaint under Standard 9.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Criminal Minds on 31 January 2011 breached Standards 1, 8 and 10 of the Free-to-Air Television Code of Broadcasting Practice.

[53]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. In our view, the publication of this decision is sufficient to provide guidance for broadcasters on our expectations surrounding the broadcast of this type of material at 8.30pm.

Signed for and on behalf of the Authority

Peter Radich
Chair
8 July 2011

Appendix

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

1    Imelda King’s formal complaint – 3 February 2011

2   TVNZ’s response to the complaint – 1 March 2011

3   Ms King’s referral to the Authority – 24 March 2011

4   TVNZ’s response to the Authority – 27 May 2011

5   TVNZ’s response to the Authority’s request for further information – 10 June 2011

¹The New Zealand Bill of Rights Act: a commentary (Andrew S. Butler and Petra Butler) (2005)

²See, for example, Campaign For Our Children and CanWest TVWorks Ltd, Decision No. 2004-168; Archibald and TVNZ, Decision No. 2008-019.

³Decision No. 2008-019

⁴See Harrison and TVNZ, Decision No. 2008-066 (Standard 8); Knight and TVWorks Ltd, Decision No. 2008-137 (Standard 10); Turner and TVNZ, Decision No. 2008-112 (Standard 1).