Lowe and Television New Zealand Ltd - 2003-040
- J H McGregor
- Tapu Misa
- R Bryant
- John Lowe
ProgrammeAlways Greener promo
BroadcasterTelevision New Zealand Ltd
Promo for Always Greener – bare buttocks masked by a "smiley face" – indecent – harmful to children
Standard 1 and Guideline 1a – masking device not offensive – no uphold
Standard 9 and Guideline 9a – not harmful to child viewers – no uphold
This headnote does not form part of the decision
 A promo for Always Greener was broadcast on TV One at various times on 2 February 2003. A "smiley face" was used to cover the bare buttocks of a male character.
 John Lowe complained to Television New Zealand Ltd, the broadcaster, that masking the human form in this manner was offensive and harmful to children.
 In response, TVNZ said the "smiley face" was attached so that the promo could be shown at any time. It declined to uphold the complaint that the masking breached broadcasting standards.
 Dissatisfied with TVNZ’s decision, Mr Lowe referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold the complaint.
 The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 A promo for the drama, Always Greener, was shown on TV One at various times on 2 February 2003. A scene in the promo featured a naked man whose buttocks were covered by a "smiley face" superimposed by TVNZ.
 Mr Lowe criticised the use of a "smiley face" to cover the buttocks of the male featured in the promo. The device, he alleged, breached Standards 1 and 9 of the Television Code. He attached several pictures from newspapers which featured nude people, which he contended, demonstrated "current norms".
 Mr Lowe argued that the masking was indecent because the graphic masked the human form. In his opinion, TVNZ had failed to consider the viewing interests of children, because masking in this manner had the effect of:
creating an erroneous message (this part of the body is dirty, disgusting and degrading) then imposing it on our society, affecting especially children.
 Mr Lowe maintained that such masking resulted in unhealthy attitudes towards the human body and led to increases in rape, molestation and suicide.
 TVNZ assessed the complaint against the standards in the Free-to-Air Television Code of Broadcasting Practice nominated by Mr Lowe. The relevant Standards and Guidelines read:
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.
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.
Standard 9 Children’s Interests
During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.
9a Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material which would disturb or alarm them.
The Broadcaster’s Response to the Complainant
 TVNZ did not uphold the complaint. It advised that when the promo was made, the decision to attach the "smiley face" was so that the promo could be shown at any time, and not restricted to classified time bands. It disagreed that the masking sent a message to viewers that the man’s buttocks were "dirty, disgusting and degrading". In its view, the "smiley face" suggested "fun".
 TVNZ considered that the decision for masking on this occasion was "marginal" because of the "extreme brevity of the clip" and the "distance of the naked figure from the camera". However, in its view, a conservative decision could hardly render a breach of the standards.
 TVNZ did not consider that the use of the "smiley face" to cover bare buttocks breached current norms of good taste and decency. Nor could it comprehend, in relation to Standard 9, how the concealment could prove harmful to child viewers.
 It concluded:
While the [complaints] committee has respect for your views and acknowledges that the recent press photographs which you provided suggest an increased tolerance among New Zealanders towards nudity, it could not conclude that the masking of buttocks represented a breach of statutory programme standards.
The Complainant’s Referral to the Broadcasting Standards Authority
 In response to TVNZ’s decision regarding the Standard 9 aspect, Mr Lowe explained in detail how this one masking may lead in 25 years time to approximately 1000 incidents of serious criminal and anti-social behaviour. In his view, the masking taught children that "this part of one’s self must be suppressed", which was potentially harmful to child viewers.
 Mr Lowe maintained that the masking of the human form caused social harm, "The effect is real – and potentially measurable", he wrote.
The Authority’s Determination
 When the Authority determines a complaint that a broadcast contravenes Standard 1 of the Television Code, it is required to determine whether the material complained about breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but does not determine whether the programme breached the standard. Accordingly, the Authority has considered the context in which the material complained about was broadcast.
 The Authority considers that the use of the "smiley face" to cover the bare buttocks of a man featured in the promo did not breach broadcasting standards. It notes that the promo was devised so that it could be broadcast in all time zones. In the Authority’s view, as acknowledged by the broadcaster, a cautious approach was taken to use the graphic to obscure the male’s buttocks, and it accepts that the broadcaster’s editorial exercise of caution was not inappropriate and clearly showed that it had been mindful of child viewers.
 In assessing the complaint against the standards cited, the Authority does not consider that, in context, the masking was indecent to transgress Standard 1 of the Television Code. It accepts that the broadcaster used the masking device as a means to ensure the promo could be broadcast to a wide audience. The Authority does not agree with the complainant’s contention that the masking inferred to children that "this part of the body is dirty, disgusting and degrading". It is unconvinced by the complainant’s evidence to substantiate the assumption that child viewers were affected by the implication of the masking. Accordingly, the Authority also declines to uphold the Standard 9 aspect.
 The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the above reasons, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
Dr Judy McGregor
22 May 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
- John Lowe’s Complaint to Television New Zealand Ltd (plus attachments) – 3 February 2003
- TVNZ’s Response to the Formal Complaint – 19 February 2003
- Mr Lowe’s Referral to the Broadcasting Standards Authority – 6 March 2003
- TVNZ’s Response to the Authority – 13 March 2003