Livesey and TelstraClear Ltd - 2007-092
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- John Livesey
Complaint under section 8(1)(a) of the Broadcasting Act 1989
9 Songs – film included explicit scenes of unsimulated sexual intercourse, oral sex, masturbation and ejaculation – broadcast at 8.30pm on Rialto Channel – allegedly in breach of content classification and warning standard, and good taste and decency
Standard P1 (content classification, warning and filtering) – 18 S classification was inadequate to advise viewers about the explicit sexual content – should have included a visual and verbal warning prior to the broadcast – upheld
Standard P2 (good taste and decency) – lack of warning and audience expectations of Rialto Channel – upheld
This headnote does not form part of the decision.
 At 8.30pm on Saturday 7 July 2007, a movie entitled 9 Songs was broadcast on Rialto Channel. The channel was available to both SKY Television and TelstraClear subscribers. The movie was classified “18 S” which indicated that people under the age of 18 years should not view the programme, and that there was sexual content that may offend. The classification and warning was displayed at the beginning of the film.
 The movie told the story of a British glaciologist Matt and his American exchange student girlfriend Lisa, who had a short and intense relationship before Lisa returned to America. The title refers to the nine songs played by eight different rock bands that complement the story of the film.
 9 Songs included explicit scenes of unsimulated sexual intercourse, oral sex, masturbation and ejaculation.
 John Livesey lodged a formal complaint with TelstraClear Ltd, the broadcaster, alleging that the broadcast of 9 Songs breached standards of good taste and decency, and content classification. He referred to the film’s explicit sexual activity, including oral sex and masturbation. Mr Livesey was of the view that the “18 S” classification did not give sufficient warning as to the content of the movie.
 Standards P1 and P2 and the several guidelines of the Pay Television Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:
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 and warnings
(a) These classifications should be broadcast on all content except for news and current affairs and live content:G Approved for General viewing
PG Parental Guidance recommended for young viewers
M Suitable for Mature audiences 16 years and over
16 People under 16 years should not view
18 People under 18 years should not view
(d) Visual warning labels should be broadcast immediately prior to content which is likely to distress or offend a substantial number of viewers, particularly where it is likely that viewers would not anticipate this effect due to the context or the nature of the content.
(e) Visual warning labels will include:C Content may offend
L Language may offend
V Contains violence
VL Violence and language may offend
S Sexual content may offend
(g) Verbal warnings should also be used when content is particularly likely to distress or offend a substantial number of viewers. When used, verbal warnings should screen at the start of the programme, with accompanying text if necessary.
Good taste and decency
Current norms of good taste and decency should be maintained consistent with the context of each programme and its channel.
(a) Appropriate use of classifications, warnings and filtering technology in accordance with standard P1 above may assist broadcasters to comply with this standard.
(b) The likely expectations of the audience for a channel, a programme and its scheduling will also be considered.
(c) Explicit adult sex programmes classified 18 may screen only on premium channels.
Broadcaster's Response to the Complainant
 TelstraClear noted that the “18 S” classification information had screened at the beginning of the movie and was also included in the electronic programme guide and in TelstraClear’s print programme guide. It contended that the programme had screened with the appropriate use of classifications and warnings.
 TelstraClear also noted that the synopsis of the film – available on the website and the print programme guide – stated “when a British glaciologist meets an American college student and the two have intense sexual encounters in between rock concerts”. In the broadcaster’s view, this information, in addition to the warning displayed before the start of the movie, clearly indicated that the movie contained sexual content. It concluded that Standards P1 and P2 were not breached.
Referral to the Authority
 Dissatisfied with TelstraClear’s response, Mr Livesey referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989. He reiterated his view that the classification “18 S” in no way reflected the content of 9 Songs with respect to its “graphic and explicit sex scenes” and also drug use. He considered that TelstraClear was “pushing the limits of what is acceptable to any reasonable person”, and maintained that the programme breached standards of good taste and decency and content classification.
 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.
 As a preliminary matter, the Authority notes that Mr Livesey complained about the drug use portrayed in 9 Songs in his letter of referral to the Authority. As this was a matter which was not raised in his original formal complaint to the broadcaster, the Authority has no jurisdiction to consider this aspect of the complaint.
Standard P1 (content classification, warning and filtering)
 Standard P1 of the Pay Television code states that viewers should be informed by regular and consistent advice about programme content (including classifications and warnings).
 The Authority notes that the film 9 Songswas broadcast on Rialto Channel, which is a premium channel (meaning that a separate and additional fee is payable by subscribers). In the Authority’s view, most viewers would expect Rialto Channel to broadcast film festival and art house films containing more challenging content than would be anticipated on the mainstream movie channels.
 However, the film 9 Songs contained several lengthy scenes involving unsimulated sexual intercourse, oral sex, masturbation and ejaculation. The Authority acknowledges that such content screens regularly on other premium channels which largely contain, and are promoted as containing, sexual material for the purposes of titillation. However, it considers that viewers of Rialto Channel would not have expected to see graphic portrayals of unsimulated sex in a movie broadcast on that channel at 8.30pm. It finds that the 18 S classification and warning would not have adequately informed viewers of the explicit nature of the content shown.
 In the Authority’s view, guideline (g) to Standard P1 is relevant on this occasion. It states:
Verbal warnings should also be used when content is particularly likely to distress or offend a substantial number of viewers. When used, verbal warnings should screen at the start of the programme, with accompanying text if necessary.
 In the Authority’s view, the broadcaster should have included a visual and verbal warning before the film, stating that the broadcast included explicit scenes showing unsimulated sex. This information should also have featured in the electronic programme guide in order to meet the requirement in Standard P1 to provide “regular and consistent advice about programme content”.
 For the reasons outlined above, the Authority finds that the broadcast of 9 Songs breached Standard P1.
Standard P2 (good taste and decency)
 Standard P2 states that current norms of good taste and decency should be maintained consistent with the context of each programme and its channel. On this occasion, relevant contextual factors include:
- 9 Songs was broadcast on Rialto Channel at 8.30pm
- the film was classified “18 S”
- the classification was displayed at the beginning of the film and in the electronic and print programme guides.
 The Authority has found above that the classification which preceded the broadcast was inadequate to inform viewers of Rialto Channel of the explicit unsimulated sexual content in the film. It finds that by broadcasting the film without an appropriate warning, TelstraClear did not comply with the requirement to maintain standards of good taste and decency on this occasion.
Bill of Rights
 The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determination. The Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.
For the above reasons the Authority upholds the complaint that the broadcast by TelstraClear Ltd of 9 Songs on 8.30pm on Saturday 7 July 2007 breached Standards P1 and P2 of the Pay Television Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.
 Mr Livesey submitted that the Authority should order TelstraClear to broadcast a statement on its news programmes, in particular the 6pm news, and make the statement available “to the NZ Press, and any magazine, or journal, such as TelstraClear Watch, or any electronic programme guide advertising their programmes”. He also submitted that the broadcaster should pay $5,000 costs to the Crown.
 TelstraClear stated that it did not agree with the Authority’s decision, and argued that it was not a “broadcaster” because it re-transmitted television programmes broadcast by SKY Network Television Ltd. It stated that it had no control over the content of broadcasts, and did not have the ability to broadcast a statement on any television channel.
 The Authority has considered the submissions from both parties. It does not intend to make an order on this occasion. The Authority considers that this decision and its publication serve as sufficient notification to broadcasters of its expectations in relation to sexually explicit material of this nature.
 For the record, the Authority rejects TelstraClear’s submission that it is not a “broadcaster” for the purposes of the Broadcasting Act 1989. The Authority considered this question in relation to Decision No. 2004-094 and concluded that TelstraClear was a broadcaster. TelstraClear has not provided any new information which would persuade the Authority to alter its position on this matter.
 The Authority is also of the view that TelstraClear possesses the necessary technology to comply with an order under section 13(1)(a) of the Broadcasting Act 1989, and it intends to take this matter up with the broadcaster.
Signed for and on behalf of the Authority
18 March 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. John Livesey’s formal complaint – 10 July 2007
2. TelstraClear’s decision on the formal complaint – 4 October 2007
3. Mr Livesey’s referral to the Authority – 18 October 2007
4. TelstraClear’s response to the Authority – 2 November 2007
5. Mr Livesey’s submissions on orders – 3 January 2008
6. TelstraClear’s submissions on orders – 29 January 2008