Lowe and TV3 Network Services Ltd - 2002-109
- P Cartwright (Chair)
- J H McGregor
- R Bryant
- John Lowe
BroadcasterTV3 Network Services Ltd
Nightline – item about "Puppetry of the Penis" – penis obscured – inaccurate as truth concealed – sexualising human body breach of law and order
Standards 2 – legal process followed – no uphold
Standard 5 – item not inaccurate – no uphold
This headnote does not form part of the decision.
 The show "Puppetry of the Penis" was discussed during an item broadcast on Nightline at about 11.00pm on 29 April 2002. The item did not include any visuals of penis puppetry as the reporter stated that the "full monty" would not be revealed in view of compliance with "broadcasting standards".
 John Lowe complained to TV3 Network Services Ltd, the broadcaster, that in view of the material shown in other programmes, the comment was inaccurate. He also said that the item breached the requirement for standards consistent with the maintenance of law and order.
 In response, TV3 said that the editorial decision to obscure the actual penis puppetry did not make the item untruthful, and it did not consider the law and order standard to be relevant.
 Dissatisfied with TV3’s decision, Mr Lowe referred the 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 tape 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.
 The two men presenting in New Zealand the stage show "Puppetry of the Penis" were interviewed on Nightline broadcast by TV3 at about 11.00pm on 29 April 2002. The item included some parts of the show, although the footage of the actual penis puppetry was either masked or obscured. The reporter stated that:
In compliance with broadcasting standards, Nightline can’t reveal the full monty.
 John Lowe complained to TV3 that the reporter’s comment was inaccurate. He contended that Big Brother, broadcast earlier that evening on TV2, included two instances of footage which showed a penis. Moreover, he recalled, TV3 had broadcast in 2001 a documentary starting at 8.30pm entitled The Naked Penis.
 Mr Lowe observed that the Broadcasting Standards Authority had made some early decisions "based on assumptions on decency". However, he added, that did not mean "they can’t learn". He wrote:
By ignoring both the intent and letter of the Broadcasting Act by effectively introducing prior censorship, TV3 is removing the option of having the viewers democratically decide what is acceptable, as clearly required by the Act. It is clear from a list of free-to-air broadcast exposures of genital areas (nearly 50 were male) that I documented over a 3-year period in the late 90s (which drew, so far as I’m aware, no formal complaint), that this cock-up was not due to some "Broadcasting Standards" requirement.
 Mr Lowe also contended that the reporter’s statement contravened the standard which requires broadcasters to maintain standards which are consistent with the maintenance of law and order.
 Referring to the BSA’s research which indicated that viewers objected to sleaze, but not nudity, Mr Lowe maintained that viewers were concerned with the sexualisation of the body. The standards, he said, did not exclude the broadcast of an appropriate example of penis puppetry.
 In view of the specific standards raised by Mr Lowe, TV3 assessed the complaint under Standards 2 and 5 of the Free-to-Air Television Code of Broadcasting Practice. They read:
Standard 2 Law and Order
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
The Broadcaster’s Response to the Complaint
 TV3 began by making the point to Mr Lowe, which it said had been made to him in previous correspondence regarding the pixelation of genitals, that:
TV3 considers that generally speaking such pixelation (or in this case obscuring) of full nudity is required to meet community standards where the vision is to be played across all time bands.
 Nevertheless, it continued, given the time of the broadcast and the likely audience, it accepted that the reporter’s statement was not correct. It added:
However, while we agree with you about the comment we do not intend to second-guess the News team who edited and put the item to air. We note that even in ignorance of your complaint the same News team took a different view on 14 May when covering the auditions for New Zealand performers – no such comment was made and in fact, while discreet, no deliberate obscuring of the nudity occurred.
 TV3 advised that the News team has been told that nudity, without sleaze, was acceptable on Nightline bulletins.
 Turning to the standards, TV3 did not accept that either had been breached. It considered Standard 2 as irrelevant, and it wrote regarding Standard 5:
The reporter’s comment and the editorial decision to obscure the actual penis puppetry did not render the item or the bulletin untruthful or inaccurate.
The Referral to the Broadcasting Standards Authority
 Mr Lowe argued that by obscuring the actual puppetry of the penis, the item was "untruthful" about the "whole point of the item". He added:
It is patently obvious that "the facts" or "the truth" has been both deliberately and literally obscured.
 However, Mr Lowe wrote, Standard 2 and Guideline 2a was the main issue of his complaint. Guideline 2a provides:
2a Broadcasters must respect the principles of law which sustain our society.
 The intent of the Broadcasting Act 1989, Mr Lowe maintained, was that it was for viewers to decide what was acceptable. The reporters’ reference to broadcasting standards, he said:
… effectively (if inadvertently) softened us up for the introduction of prior censorship, against the basic principle of the Act: that the viewers determine (by way of complaint), what is acceptable.
 Mr Lowe also referred to United Nations Conventions and to research. He provided the following summary from the research he had cited:
It is clear that both from the professional views outlined briefly above and the views of the populace as canvassed in the Authority’s commissioned surveys (despite the obsession of the latter with ‘sex’) that innocent nakedness per se is, at worst, acceptable in an appropriate context (eg: hospital and beach), for any age; and at best of significant value for both mental and physical health.
 In conclusion, he maintained that the Authority should consider the directions of its decisions, and argued that a decision to uphold the current complaint would be beneficial to all.
The Authority’s Determination
 The Authority starts by looking at the reporter’s comment which Mr Lowe argued was central to his complaint. The reporter stated:
In compliance with broadcasting standards, Nightline can’t reveal the full monty.
 The Authority believes that the reporter was not referring to the Broadcasting Standards Authority: rather he was referring to the standards set out in the Broadcasting Act 1989 and the Codes of Broadcasting Practice with which broadcasters must comply.
 The Broadcasting Act places the primary responsibility for complying with standards on each individual broadcaster. The issue raised by the item is dealt with in s.4(1)(a) of the Act which reads:
4(1) Every broadcaster is responsible for maintaining in its programmes and their presentation standards which are consistent with (a) The observance of good taste and decency;
 It is apparent from the reporter’s comment that TV3, as the broadcaster of the news item, considered that this provision required that an item about penis puppetry obscure visuals of the penis.
 While TV3 made that decision on this occasion, the correspondence records that TV3 could well reach a different decision should a similar situation occur again in regard to material to be screened on Nightline. The Authority observes that the possibility of this change reflects the approach contained in the Act, which provides that the application of broadcasting standards to particular items is a matter for the broadcaster. With regard to the portrayal of nudity, TV3 advised that it, as the broadcaster, had made the ruling and would decide in the future on the application of the standards to specific items.
 The Authority is not involved in this process. The broadcaster decides whether or not to screen specific visuals. The Act sets out a complaints process whereby a viewer, who considers that a broadcast fails to comply with the standards, may complain to the broadcaster. If the complainant is dissatisfied with the broadcaster’s decision, the complaint may be referred to the Broadcasting Standards Authority for investigation and review.
 Indeed, this is the process which Mr Lowe has followed with his complaint. He complained to TV3 which advised him that it had decided that the broadcast had breached neither Standard 2 nor 5 of the Television Code. As he was dissatisfied with TV3’s decision, Mr Lowe referred his complaint to the Authority.
 On this occasion, the Authority concurs with TV3 that the broadcast, by obscuring the penis, was not untruthful and in breach of Standard 5. It has explained the processes regarding broadcasting standards set out in the Broadcasting Act. As TV3 has complied with the requirements in the Act, the Authority considers that Standard 2 was not contravened. The Authority observes that the process whereby Mr Lowe complained to TV3 and, later, referred his complaint to the Broadcasting Standards Authority as he was dissatisfied with TV3’s decision, is a good illustration of how the law about broadcasting standards actually operates in practice.
 The Authority observes that to find a breach of broadcasting standards on this occasion would be to interpret 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 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
22 August 2002
The following correspondence was received and considered by the Authority when it determined this complaint:
- John Lowe’s Formal Complaint to TV3 Network Services Ltd – 30 April 2002
- TV3’s Response to Mr Lowe – 31 May 2002
- Mr Lowe’s Referral to the Broadcasting Standards Authority – 12 June 2002
- TV3’s Response to the Authority – 21 June 2002
- Mr Lowe’s Final Comment – 1 July 2002