Lambert and SKY Network Television Ltd - 2010-180
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Simon Lambert
ProgrammeThe Soviet Story
BroadcasterSKY Network Television Ltd
Channel/StationThe History Channel
Complaint under section 8(1C) of the Broadcasting Act 1989
The Soviet Story – documentary about the Soviet regime – contained graphic and violent details, as well as photographs and video footage of torture, mass graves, murder and starvation – allegedly in breach of standards relating to children’s interests and violence
Standard P4 (violence) – violent content not carefully classified – upheld
Standard P3 (children) – broadcaster sufficiently protected child viewers from unsuitable content – not upheld
This headnote does not form part of the decision.
 The Soviet Story, a documentary about genocide and mass murder under the Soviet regime, was broadcast at 7.30pm on The History Channel on Friday 29 October 2010. The documentary canvassed alleged political and philosophical connections between the Nazi and Soviet systems before and during the early stages of World War II. It contained graphic and violent details, as well as photographs and video footage of torture, mass graves, murder and starvation.
 Simon Lambert made a formal complaint to SKY Network Television Ltd, the broadcaster, alleging that the programme breached standards relating to children’s interests and violence.
 The complainant said that he was “disturbed to see graphic, real violent footage” at a time when children could be watching. He referred to video footage of a man being shot in the head, and another having his throat slit, as well as “explicit” and “absolutely horrific” footage of a man being stabbed several times while lying on the street dying as a woman sat next to him.
 SKY assessed the complaint under Standards P3 and P4 of the Pay Television Code of Broadcasting Practice. Standard P1 and guidelines P1(b) and P3(c) are also relevant. These provide:
Standard P1 Content classification, warning and filtering
Viewers should be informed by regular and consistent advice about programme content (including classifications and warnings) and, where available, filtering technology.
Classifications should screen at the beginning of programmes, be included in all electronic programme guides and accompany printed guides where possible.
Standard P3 Children
Broadcasters should ensure that child viewers are protected from unsuitable content.
Content classified M or above, especially that containing sexual or violent material, should not screen adjacent to content aimed at children.
Standard P4 Violence
Violent content should be appropriate to the context of the programme and classified carefully in accordance with Standard P1.
Referral to the Authority
 Having not received a response from the broadcaster within the statutory timeframe, Mr Lambert referred his complaint to the Authority under section 8(1C) of the Broadcasting Act 1989.
Broadcaster’s Response to the Authority
 SKY said that The Soviet Story was a documentary that focused on a turbulent period in Russian history, and that viewers would therefore have expected the film to contain some “relatively graphic scenes”. It noted that the programme synopsis stated, “The complete story of Europe’s most murderous regime which helped the Nazis to murder Jews and slaughtered its own people on an industrial scale.”
 The broadcaster noted that the documentary was classified “M”, indicating that it was suitable for mature audiences 16 years and over, and that it carried the warning label “C”, advising that it contained content that may offend. It said that parents were alerted to programme classifications through an on-screen banner appearing at the beginning of each programme and through the electronic programme guide and SKYWATCH magazine listings. In this respect, it said that viewers were informed by regular, consistent advice about programme content, including classifications and warnings, which enabled them to make an informed judgement about whether or not to watch a particular programme and whether to allow their children to watch.
 SKY emphasised that parents were able, through a sophisticated blocking mechanism, to block programmes they considered to be unacceptable for younger viewers.
 For these reasons, the broadcaster declined to uphold the complaint under Standards P3 and P4.
 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.
Standard P4 (violence)
 Standard P4 states that violent content should be appropriate to the context of the programme and classified carefully in accordance with Standard P1 (content classification, warning and filtering).
 In our view, the imagery subject to complaint clearly amounted to violent content for the purposes of the standard.
 While we consider that the content was appropriate in the context of a programme that screened on The History Channel and which canvassed the horrific events that occurred under the Soviet and Nazi regimes, in our view it was not classified carefully in accordance with Standard P1. Guideline (b) to that standard provides that classifications should screen at the beginning of programmes, be included in all electronic programme guides and accompany printed guides where possible. In response to a request for further information from the Authority, the broadcaster said that The Soviet Story was preceded by a written and verbal warning, which stated:
Recommended for mature audiences 15 years and over.
This programme contains scenes that some viewers may find upsetting.
 We note that the MA15+ classification is not one that is recognised in the Pay TV Code. Further, it is inconsistent with the “M” classification that was included in the electronic programme guide and in SKYWATCH magazine listings. This difference is particularly important, given that the “M” classification applies to programmes suitable for those aged 16 years and over, in contrast to the MA15+ classification, which allows for a younger audience. We also draw attention to the broadcaster’s use of the “C” warning label for content that may offend. In our view, this warning was too general, and the “V” label for violent content should have been used to better inform viewers about the nature of the potentially offensive material.
 For these reasons, in particular the broadcaster’s use of the MA15+ classification, we find that the violent content shown in The Soviet Story was not carefully classified in accordance with Standard P1. Having reached this conclusion, we must consider whether to uphold the complaint as a breach of the violence standard.
 We acknowledge that upholding the Standard P4 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Knight and TVWorks Ltd,1 the Authority determined that upholding a complaint under Standard 10 (violence) of the Free-to-Air Television Code 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. In that decision the Authority described the objective of Standard 10 as follows:
...the violence standard exists to ensure that broadcasters use care and discretion to exclude unsuitable violent material and to promote the use of warnings where necessary to protect viewers – particularly child viewers.
 While the sentiment expressed above relates specifically to the violence standard as encapsulated in the Free-to-Air Television Code, we are of the view that it applies equally to Standard P4, in particular, in terms of the need to protect viewers from unsuitable violent content. We note that Standard P4 includes a direct reference to carefully classifying violent content, which further indicates that the standard’s objective is primarily related to protecting viewers by providing them with sufficient and correct information to enable them to make informed viewing choices. Correct classification of programmes screened on SKY is especially important given that there are no time-bands on pay television.
 We have noted above that the broadcast contained violent imagery in the absence of an appropriate classification and warning contrary to the requirements of Standard P4. In these circumstances, upholding the complaint clearly promotes the objective of Standard P4 as outlined above. We consider that upholding the complaint would not unreasonably restrict the broadcaster’s right to freedom of expression, as we are only requiring that correct classifications and warnings be included rather than finding that the content should not have been broadcast at all. Accordingly, we uphold the Standard P4 complaint.
Standard P3 (children)
 Standard P3 requires broadcasters to ensure that child viewers are protected from unsuitable content. A “child” is a person under 14 years of age for the purpose of the standard.
 We note that while The Soviet Story screened at 7.30pm, within children’s normally accepted viewing times, there are no time-bands on SKY. This is because pay television allows parents to employ sophisticated blocking mechanisms for programmes they do not want their children to watch. Though we have found that the violent content shown in the documentary was not carefully classified (see paragraph ), the MA15+ rating still excluded child viewers under the age of 14. Further, The History Channel is not targeted at children, nor is it likely to be watched unsupervised, and the film was not screened adjacent to content aimed at children (see guideline (c) to Standard P3).
 In our view, these factors, along with the film’s subject matter, would have adequately informed parents that the film was likely to contain content unsuitable for children, therefore enabling them to take whatever steps they deemed appropriate. Accordingly, we are satisfied that the broadcaster fulfilled its obligation to protect child viewers, and we decline to uphold the complaint under Standard P3.
For the above reasons the Authority upholds the complaint that the broadcast by SKY Network Television Ltd of The Soviet Story on Friday 29 October 2010 breached Standard P4 of the Pay Television Code of Broadcasting Practice.
 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. We consider that this decision will serve as a reminder to broadcasters of the need to utilise appropriate classifications and warning labels, as set out in the relevant codes of broadcasting practice, in order to inform viewers of the likely nature of programme content.
Signed for and on behalf of the Authority
3 May 2011
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Simon Lambert’s formal complaint – 1 November 2010
2 Mr Lambert’s referral to the Authority – 10 December 2010
3 SKY’s response to the Authority – 25 March 2011
4 Further information from SKY – 1 April 2011
1Decision No. 2008-137