BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Back of the Y – programme contained substantial amount of coarse language and staged violence – mocked religion – skit in which a character playing Jesus Christ was beaten up by another playing Santa Claus – skit called ‘Pooman and Wees’ in which the character Pooman threw imitation faeces at his enemies and showed his bottom and genitals from behind – scene where woman was sprayed with imitation faeces and licked some off her hands – character Wees tried to clean the faeces off her by spraying her with imitation urine, but sprayed himself instead – skit called ‘Smoodiver’ in which the male character was shown apparently masturbating – allegedly in breach of good taste and decency

Findings
Standard 1 (good taste and decency) – episode contained material and themes that were in bad taste – cumulative effect of material – contextual factors favouring broadcaster not sufficient to prevent a breach – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]  An episode of the comedy programme Back of the Y was broadcast on C4 at 10.30pm on Tuesday 27 January 2009. The show was presented by a violent and abusive character called Danny Parker and consisted of a series of skits with a variety of characters.

[2]   The episode began with Danny Parker in his dressing room playing the spelling game Hangman with two small children. The character was shown asking the children what letters were in the mystery word; the letters C-U-N had already been identified with one letter remaining. The children did not guess the last letter before the hangman was drawn and Danny kicked a chair out from underneath a figure who had been standing on it. The figure remained suspended and swinging in the air, as if being hanged, with accompanying choking sounds. The hanging figure was shown from the torso down. Danny Parker then told the children, “Okay kids, that’s ah, that’s what happens when you don’t pay your bills. See you after the show”. A shot of one of the children with a disinterested expression on her face was then shown.

[3]   Throughout the episode, Danny Parker performed the role of a talk-show host with a live audience, interviewing various characters and talking to the audience.

[4]   After the introduction, Danny Parker said to the audience:

The theme of tonight’s show is religion. It’s a funny one religion, isn’t it? The old religion, those religious types, they’re crazy. They’ve got an absolute hard-on for God haven’t they! They’re all ‘Jesus and Mary Jane this, how’s your father that’, down on their knees in front of their beds praying to the hairy ghost for free shit. I tell you what, it doesn’t work. I’ve been on my knees for weeks praying. I’ve been hoping someone will get me off these brutal gay rape charges I’m up on, but I haven’t heard shit from above.

[5]   Danny Parker went on to say:

Religion. Catholics hate Protestants, Muslims hate Jews, and we all hate Scientologists. Tonight on Back of the Y we’re taking the piss out of all of you superstitious morons and your lame imaginary friends.

[6]   The first skit was called ‘Smoodiver – Porn Detective’ and followed a male character who was obsessed with masturbation and pornography. The skit involved the character following a series of clues relating to the church and pornography. It was shown in two parts and was titled ‘The Da Vinci Load’. During the skit, the character broke in to the Louvre Museum in Paris and was shown from behind masturbating to famous paintings, such as the Mona Lisa, which he had discovered to be secret old pornography. Smoodiver appeared to ejaculate onto the floor and as several security guards arrived, one slipped on the semen.

[7]   The second skit involved Danny Parker interviewing ‘Jesus Christ’ about religion. ‘Jesus’ came out on stage wearing only a white loin cloth, with blood marks on his wrists and ribcage. Jesus complained about his birthday becoming commercialised when Danny Parker announced that Father Christmas was backstage. A character wearing a Santa Claus outfit ran onto the stage and began repeatedly punching ‘Jesus’, who fell to the ground crying.

[8]   The third skit was called ‘Pooman and Wees’ and involved two actors playing fictional crime fighting heroes who defecated and urinated on their enemies. Pooman wore a costume on the top half of his body and was naked, apart from boots, from the waist down, but had a plastic penis covering the front of his genitals. During the skit, a woman was sprayed with imitation faeces that came from an imitation bottom and was then shown licking it from her fingers. As she did this, the character Wees stated, “Holy, shitty, fudge-tits Pooman, she’s enjoying it”. The character Pooman told Wees to “spray her down”. Wees attempted to urinate on her, but ended up spraying himself in the face.

[9]   The ‘Pooman and Wees’ skit also included footage of the character Pooman from behind bending over with his bottom and genitals being briefly visible.

[10]   The fourth skit was about a character called Colonel Calamity Campbell and his old- fashioned stunts. The skit was set in the early 1900s and a fictional Prime Minister was shown introducing his new concept for environmentally friendly energy, which was the manpower of Chinamen. The Prime Minister announced that Colonel Calamity Campbell was going to try and jump a lake in a cart pulled by Chinamen in an effort to show how powerful the new energy source was. The stunt failed, with the Chinamen and Calamity Campbell falling into the lake. Calamity Campbell managed to get back on land only to be beaten up by police, while all the Chinamen drowned.

[11]   At the end of the programme, Danny Parker was shown leaving the studio. As he started to walk away, a God-like voice could be heard shouting at Danny and he was struck by a lightning bolt.

[12]   The programme contained a substantial amount of coarse language including the words “fuck”, “shit”, “arsehole”, “cunt” and “cock”.

[13]   Back of the Y was preceded by a verbal and written warning that stated:

This programme is rated adults only and contains violence that may disturb and language which may offend some people.

Complaint

[14]   Cyril Lotriet made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the programme breached standards of good taste and decency.

[15]   Mr Lotriet said that he was complaining about the contents of the entire programme, but specifically the parts relating to religion including the skit involving the ‘Jesus’ being beaten up by Santa Claus. He argued that the programme had launched an “unadulterated defamatory attack on Christianity and Jesus”. The complainant contended that the programme had suggested that Jesus was not wanted in society and that the skit amounted to a “hate crime”.

[16]   The complainant noted that the programme contained “scenes of simulated masturbation, cursing, bare bottoms, excrement, excrement hitting the face of a person” and “references to sodomy”.

Standards

[17]   TVWorks assessed the complaint under Standard 1 and guidelines 1a and 1b of the Free-to-Air Television Code of Broadcasting Practice. These 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.

Guidelines

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.

1b   Broadcasters should consider – and if appropriate require – the use of on-air visual and verbal warnings when programmes contain violent material, material of a sexual nature, coarse language or other content likely to disturb children or offend a significant number of adult viewers. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.

Broadcaster's Response to the Complainant

[18]   TVWorks said that to constitute a breach of Standard 1, the broadcast material must be unacceptable to a significant number of viewers in the context in which it was shown.

[19]   The broadcaster stated that Back of the Y was targeted at young adults and had gained a cult following since it first screened on TV One in 2001. TVWorks said that the programme satirised late night talk shows, where the hosts delivered monologues to a live audience, conducted interviews and introduced pre-recorded segments. It contended that the programme’s target audience expected the type of material contained in the show.

[20]   TVWorks said that the programme was hosted by “the psychotic Danny Parker who routinely beats his audience and guests”. It stated that the style of the show was “intentionally self-deprecating, billing itself as ‘New Zealand’s shittiest half-hour’”, and utilised farcical, unrealistically violent and scatological theatrics to inject provocative humour into its characters and themes.

[21]   The broadcaster noted that Back of the Y was classified AO, had been preceded by a warning and was restricted to screening after 10pm. It stated that the programme contained challenging material including strong language, sexual references and unrealistic violence. TVWorks argued that the time of broadcast reflected the fact that the programme appealed to a niche adult audience who were likely to understand the farcical and puerile humour in the material.

[22]   TVWorks said that the ‘Pooman and Wees’ segment was an extreme send-up of the super powers of comic book heroes and utilised prosthetic buttocks and imitation male genitals to facilitate the so-called special powers of the pair. It pointed out that the programme’s style was intentionally low-budget and unrealistic, and that its absurdity was part of its appeal.

[23]   The broadcaster argued that, given its niche audience, it was unlikely that a significant number of viewers would have found the programme offensive. It said, “to a fan, the programme’s strength is that it takes subjects that are understood to be stereotypically young teenage boy obsessions (like fart jokes, masturbation and play-fighting) and exaggerates them to an extreme but acceptable limit (given the self-deprecating tone, unrealistic content, target audience and time of broadcast)”.

[24]   Turning to the complainant’s concerns about the skit involving a character playing Jesus, TVWorks noted that the Authority had stated previously that the right to satirise institutions within society fell squarely within a broadcaster’s freedom of expression. It argued that none of the programme’s contents was meant to be taken seriously and that the target audience would have understood its farcical approach to themes such as religion.

[25]   The broadcaster argued the programme’s warning provided viewers with specific information as to the show’s content, so that they could make an informed decision whether to watch or not. It maintained that it had taken sufficient care to ensure the programme’s challenging material was played in the appropriate context and that the material was not so challenging that it was unacceptable in any context.

[26]   TVWorks declined to uphold the complaint.

Referral to the Authority

[27]   Dissatisfied with TVWorks’ response, Mr Lotriet referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He maintained that the programme’s material was “shockingly inappropriate”.

[28]   The complainant disagreed with the broadcaster that it had provided viewers with an adequate warning about the programme’s content.

Authority's Determination

[29]   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.

[30]   When the Authority considers an alleged breach of good taste and decency, it takes into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• the programme was broadcast at 10.30pm
• Back of the Y was preceded by a verbal and written warning
• the AO classification of the programme
• the programme was on free-to-air television
• the expectations of regular viewers.

[31]   The Authority notes the broadcaster’s contention that a breach of Standard 1 would only occur if the broadcast material was “unacceptable to a significant number of viewers in the context in which it was shown”. However, Standard 1 does not refer to “a significant number of viewers”; it simply states that broadcasters must maintain standards consistent with the observance of good taste and decency. Guideline 1a states that broadcasters must take into consideration current norms of decency and taste in language and behaviour, bearing in mind the contextual factors such as the time of the broadcast and the target audience.

[32]   Accordingly, in deciding whether Standard 1 was breached, the Authority will consider the relevant contextual factors and determine whether the material has gone beyond what is acceptable for the particular medium on which it was broadcast, that is, free-to-air television.

[33]   The Authority accepts that Back of the Y generated a cult following among its niche audience. It notes that there are a number of contextual factors which favour the broadcaster’s position, including the late time of broadcast, a target audience of young-adult male viewers, the visual and verbal warnings about the episode’s content, and the fact that the language was used for comedic effect. These factors, however, will not always be sufficient to prevent a programme breaching standards of good taste and decency.

[34]   The Authority notes that the programme contained a substantial amount of coarse language including the words or variations of “cunt”, “fuck”, “arsehole” and “cock”. Research published by the Authority in 2006 indicates that the word “cunt” was considered by New Zealanders to be the most unacceptable and offensive word in the broadcasting context.¹ The use of the word has previously been found by the Authority to have breached Standard 1 (Decision Nos. 2008-032 and 2001-131).

[35]   The Authority notes that scenes involving bodily functions such as urination, defecation and masturbation appeared to dominate the half-hour programme. Back of the Y showed a man apparently masturbating and ejaculating, and a man appearing to urinate on himself. The Authority is particularly concerned about the association of defecation with sexual pleasure, when a woman licked imitation faeces from her hands in a suggestive way.

[36]   In the Authority’s view, despite the contextual factors favouring the broadcaster, the cumulative effect of the episode’s content went beyond what is acceptable on free-to-air television.

[37]   Having reached this conclusion, the Authority must consider whether to uphold this complaint as a breach of Standard 1.

[38]   The Authority acknowledges that upholding the Standard 1 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Decision No. 2008-112, the Authority determined that upholding a complaint under 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. In the Authority’s view, 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.

[39]   With that in mind, the Authority must consider whether it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of Standard 1 on this occasion. It finds that upholding a breach of the good taste and decency standard on this occasion would ensure that free-to-air television broadcasters do not screen programmes with content and themes that exceed current norms of language and behaviour. In this respect, upholding this complaint clearly promotes the objective of Standard 1, and therefore places a justified and reasonable limit on TVWorks’ freedom of expression. The Authority upholds the complaint that the item breached Standard 1.

For the above reasons the Authority upholds the complaint that a broadcast by TVWorks Ltd of Back of the Y on 27 January 2009 breached Standard 1 of the Free-to-Air Television Code of Broadcasting Practice.

[40]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.

[41]   The Authority did not receive any submissions on orders from Mr Lotriet.

[42]   TVWorks noted that the episode subject to complaint was a repeat screening which had not been complained about previously, and that Back of the Y had an established “cult” audience. It stated that it had provided a copy of the Authority’s decision to its appraisers to use as a benchmark and to the programme’s producers to “take on board” the Authority’s findings. The broadcaster submitted that the publication of the decision was an adequate remedy.

[43]   Having considered the above submissions, the Authority agrees with TVWorks that the public release of its decision upholding the complaint is sufficient in all the circumstances. It considers that TVWorks’ action in ensuring that the programme producers were aware of the Authority’s findings was appropriate and will ensure that similar breaches do not occur in the future.

Signed for and on behalf of the Authority

Joanne Morris
Chair
28 July 2009

Appendix

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

1.           Cyril Lotriet’s formal complaint – 2 February 2009
2.          TVWorks’ response to the formal complaint – 2 March 2009
3.          Mr Lotriet’s referral to the Authority – 10 March 2009
4.          TVWorks’ response to the Authority – 16 April 2009
5.          TVWorks' submissions on orders – 9 July 2009

¹Broadcasting Standards Authority, Freedoms and Fetters: Broadcasting Standards in New Zealand, (Dunmore Publishing Ltd: Wellington, 2006), 95-98.