Marsh and Valenta and TVWorks Ltd - 2008-026
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Peter Marsh
- Rod Valenta
Channel/StationTV3 # 3
Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
Californication – scene contained simulated threesome, oral sex, and female ejaculation, as well as shots of a woman’s breasts – allegedly in breach of good taste and decency, programme information, and children’s interests standards
Standard 1 (good taste and decency) – sex scene explicit and gratuitous – upheld
Standard 8 (programme information) – broadcaster not responsible for TV guides – standard does not apply – not upheld
Standard 9 (children’s interests) – broadcaster sufficiently considered the interests of child viewers during school holidays – not upheld
This headnote does not form part of the decision.
 The tenth episode of Californication was broadcast on TV3 at 9.35pm on Thursday 17 January 2008. Californication was a black comedy about a self-obsessed novelist named Hank Moody.
 The episode revolved around the relationship between Hank and his good friend and agent Charlie who had recently separated from his wife and temporarily moved in with Hank. The two men went to the gym one night, where they met a woman, Laura, who turned out to be one of Hank’s past sexual partners. Laura held a grudge that Hank had never called her. Taking advantage of Charlie’s interest in her, Laura invited herself to their house, where she confronted Hank about why he did not remember her and why he did not call. Hank was apologetic but said “I just think that I had a very good reason”.
 Later in the episode, Charlie woke Hank to convince him to have a threesome with himself and Laura. Hank grudgingly agreed.
 The threesome sex scene screened at 10.04pm. The opening shot showed Hank from the chest up lying on his bed, holding a bottle of beer and looking bored, with audible panting in the background.
 In the first part of the scene, Laura performed oral sex on Hank while having intercourse with Charlie. All three characters appeared to be naked, though no genitalia were shown. Camera angles alternated between looking up over Hank’s chest at his bored facial expression, shots of Laura’s head moving up and down below Hank’s waist implying that she was performing oral sex, and shots of Charlie from the chest up, who was positioned behind Laura moving his hips as if having sex with her. There were also shots which included all three characters (Charlie standing, Laura on the bed on all fours in front of him, and Hank lying beneath her), both from behind Charlie, and from Hank’s point-of-view at the top of the bed. On several occasions the camera panned slowly from one end of the bed to the other, from Hank, across Laura’s body to Charlie and vice versa. One such shot included a close-up of Charlie’s torso moving as he was having sex with Laura, and the top of Laura’s bottom.
 In the second part of the scene, Laura turned over and lay back on Hank, spreading her legs. Her head down to her pelvic area was shown, including her breasts but not her genitalia. Charlie performed oral sex on Laura. The camera looked down over Laura’s breasts and body at Charlie’s head between her legs, as well as from the opposite direction. Both angles highlighted the position of Charlie’s head and Laura writhing on the bed and moaning, while Hank lay underneath her.
 The scene was inter-cut with shots of Hank and Charlie’s ex-partners sneaking into Hank’s house, intending to surprise the men. Immediately after Hank said “she’s gonna blow!”, trying to warn Charlie that he had remembered the reason he had not called Laura, the women burst into the bedroom at the same time as Laura climaxed drenching Charlie’s face with ejaculate. The women looked disgusted and walked out, while the men laughed.
 The following verbal and visual warning preceded the episode:
This programme is rated adults only and is recommended for a mature audience. It contains sexual material and language that may offend some people.
Peter Marsh’s complaint
 Peter Marsh complained to TVWorks Ltd, the broadcaster, alleging that the episode breached good taste and decency, programme information, and children’s interests standards.
 With regard to Standard 1 (good taste and decency), Mr Marsh maintained that Californication was “highly objectionable broadcasting”, especially given that it was screened at the “comparatively early” time of 9.30pm during school holidays. He found the episode to be “in poor taste and graphically indecent in the extreme”. He said that he had stumbled upon the episode while flicking through channels trying to find something for his family to watch together. He stated, “...what met our eyes were two men and one woman on a bed, and a most graphic act of oral sex that left nothing to the imagination...”
 The complainant argued that the programme breached Standard 8 (programme information) because it was advertised as a comedy in TV guides, which he felt was misleading.
 Thirdly, Mr Marsh contended that TV3 had been “wilfully negligent” in screening the programme at 9.30pm, especially during school holidays, as children would still be up. He considered the programme was “undesirable for children to be subjected to”, and said he was angry with TVWorks for putting him in the position of having his children ask “what is that man doing to that woman?”
Rod Valenta’s complaint
 Rod Valenta complained to TVWorks alleging that the episode breached standards of good taste and decency.
 Mr Valenta believed that Standard 1 had been breached by screening the segment of the episode which he said depicted:
... a male actor getting drenched in female orgasm following a lengthy session of oral sex (performed with two males and one female) and then looking up at the camera with juices dripping from his face.
 Mr Valenta maintained that this “pornographic segment... although not showing any explicit genitalia, is totally unacceptable for free viewing, regardless of screening time.” He noted that the episode screened during school holidays when many young people were allowed to stay up later than usual and considered that it demonstrated a blatant disregard for broadcasting standards.
 Standards 1, 8, and 9 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of these complaints. They 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.
Standard 8 Programme Information
Broadcasters are responsible for ensuring that programme information and structure does not deceive or disadvantage the viewer.
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.
Broadcaster's Response to the Complainants
TVWorks’ response to Mr Marsh
 TVWorks contended 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, including the time of broadcast, the programme’s target audience, its classification, and the use of warnings.
 The broadcaster emphasised that the episode was rated Adults Only and restricted to screening after 9.30pm, an hour after the AO watershed, because it contained a greater degree of sexual material and potentially offensive language than could be expected at 8.30pm. It stated that the sex scene complained about occurred after 10pm in the episode (despite Mr Marsh having maintained that it appeared at 9.35). TVWorks emphasised that this was deliberate; the programme was structured so that the sex scene would be screened at 10pm or later.
 TVWorks agreed with Mr Marsh’s claim that the programme was not suitable “family viewing”, commenting that “the programme was not and has never been promoted as ‘family viewing’ and [was] scheduled appropriately in Adults Only time”.
 The broadcaster noted that the programme had premiered with a significant amount of publicity regarding its sexual content, and that its regular viewers now expected the programme to contain a certain level of sexual material, especially in a comedic context. The sex scene complained about represented the contrasting character development of Hank and Charlie, it said, which resulted in a “slapstick punch line when both the men’s former lovers walked into the bedroom at the same time as Laura climaxed”. While TVWorks accepted that this particular aspect of the sex scene was likely to offend viewers who did not regularly watch Californication, it did not consider that it was likely to be beyond the humour of the programme’s loyal following, or likely to have offended a significant number of regular viewers.
 TVWorks noted that eight minutes prior to the sex scene, Hank had reluctantly agreed to the threesome. This, it contended, would have suggested to a regular viewer that such a sex scene would feature soon after that, thereby giving viewers the opportunity to make another viewing choice in the advertisement break between the two scenes.
 The broadcaster argued that the episode did not contain any pornographic material, which, it said, is “defined as footage of actual sex acts (including the genitals of the people having sex) with the sex acts and genitals shown in close up and detail”. It maintained that the sex scene in this case was simulated, did not show any explicit nudity and was not intended to be titillating. Furthermore, TVWorks maintained that the scene was edited with the purpose of contrasting the two male characters. It was also inter-cut with scenes of their former lovers approaching the bedroom, the result of which viewers knew would become significant in the development of their respective relationships. For these reasons, the scene was not gratuitous, TVWorks said.
 The broadcaster referred to the Authority’s Decision No. 2007-105, to demonstrate that the inclusion of a threesome in a sex scene was not unprecedented on free-to-air television. In that decision the Authority deemed that a sex scene after 10pm during the school holidays was acceptable in the context in which it was shown. TVWorks maintained that ejaculation in a comedic context, under certain preconditions, could be acceptable under the Free-to-Air Code, citing the movie There’s Something About Mary as an example. TVWorks contended that in Californication the female ejaculate was not realistic, and was exaggerated and timed for comedic effect. It reiterated that the scene was screened after 10pm in an AO-rated programme known for its challenging content, did not contain full-frontal nudity, and was preceded by a warning for sexual material. The warning was specific and gave viewers the opportunity to choose whether or not to watch the episode based on their own entertainment preferences, TVWorks said.
 With regard to Mr Marsh’s complaint under Standard 8 (programme information), TVWorks maintained that, given the above reasons and descriptions of the programme, advertising the programme as a comedy was an acceptable description of its genre. It therefore did not consider that Standard 8 applied to Mr Marsh’s complaint.
 Looking at Mr Marsh’s complaint under Standard 9 (children’s interests), the broadcaster noted that this episode of Californication was screened after a PGR-rated family movie, which was an irregular occurrence. However, it did not consider that this was a breach of the code, as 9.30pm to 5am was specifically designated for stronger AO material and the scene Mr Marsh complained about was not screened until after 10pm. TVWorks emphasised that this was well after any supervising adult watching the programme would have realised that the programme’s content was not suitable for child viewers.
 The broadcaster reiterated that the programme was never promoted as family viewing and that a verbal and visual warning preceded the programme, allowing parents time to make a decision about their children’s viewing. The warning expressly referred to the AO rating and the classification appeared at the beginning of the programme and after every ad break, it said.
 TVWorks said that it was unfortunate that Mr Marsh’s children stumbled upon the sex scene, but that the possibility of that happening did not preclude the broadcast of AO material during the AO time-band. As the programme was scheduled a full hour after the AO watershed and the content of concern to the complainants appeared even later after 10pm, TVWorks maintained that children’s interests were considered. It found no breach of Standard 9 had occurred.
 Accordingly, TVWorks declined to uphold the complaints made by Mr Marsh.
TVWorks’ response to Mr Valenta
TVWorks made the same arguments with regard to Standard 1 as in its response to Mr Marsh, and declined to uphold Mr Valenta’s complaint.
Referrals to the Authority
 Dissatisfied with TVWorks’ responses, Mr Marsh and Mr Valenta referred their complaints to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
Peter Marsh’s referral
 Mr Marsh referred to the response as “verbal nonsense” and complained that TVWorks was “trying to use the ‘so called story line’ of this immoral trash” as an excuse. He expressed the opinion that Californication was not an appropriate name for a comedy, and reiterated his view that the programme was pornographic.
Rod Valenta’s referral
 Mr Valenta argued that TVWorks’ response agreed with his complaint regarding the content of the episode. He said he was astounded by TVWorks’ comparison of the episode with the “famous missing sperm/hair gel scene” in the movie There’s Something About Mary, commenting “Mary did not have sperm shot onto her face during a sex scene”.
 Mr Valenta went on to say:
The fact remains that they screened a multiple oral sex scene threesome, with female orgasm liquid being squirted onto the face of one of the males. The scene had sharp lighting... This clearly breaches standards for Free-to-Air screening.
 The complainant commented that numerous sex scenes during the series of Californication had approached the boundaries of decency, but to his knowledge this was the only scene that crossed that boundary clearly.
 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 complaints without a formal hearing.
Standard 1 (good taste and decency)
When the Authority considers a complaint that alleges a breach of good taste and decency, it is required to take into account the context of the broadcast. On this occasion the relevant contextual factors include:
- the programme was broadcast at 9.35pm
- the sex scene screened after 10pm
- the programme was rated AO
- the programme was preceded by a verbal and written warning
- the expectations of regular viewers
- the title of the programme, Californication, indicated that it was likely to contain challenging content.
 A majority of the Authority (Joanne Morris, Tapu Misa and Diane Musgrave) considers that the sex scene was as close to being pornographic as is possible without actually showing genitalia. Repetitive shots of Charlie thrusting his hips against Laura’s buttocks, Laura’s head moving vigorously up and down below Hank’s waist, and Charlie’s face between Laura’s legs, left very little to the imagination. Even accepting, as the broadcaster argued, that the scene was designed to be comedic rather than titillating, the prolonged nature and gratuitous detail in the scene took it beyond the limits of what is acceptable on free-to-air television.
 Taking into account the above contextual factors, the majority considers that the sex scene was gratuitous and explicit, and therefore it upholds the complaints that Standard 1 was breached.
 A minority of the Authority (Paul France) considers that the sex scene, although it approached the limits of what is acceptable on free-to-air television, was clearly an integral part of the overall plot of the series. Based on its role in the storyline and the contextual factors outlined in paragraph , the minority would not uphold the complaints that the scene breached Standard 1.
Standard 9 (children’s interests)
 Mr Marsh contended that TV3 was “wilfully negligent” in screening the programme at 9.30pm, especially during school holidays, as children would still be up.
 The Authority notes that guideline 9c requires broadcasters to be mindful of the fact that children tend to stay up later in the holidays and accordingly pay special attention to providing appropriate warnings during those periods.
 TVWorks took care to ensure that the sex scene was screened later than 10pm, more than one-and-a-half hours after the AO watershed, and broadcast a warning for sexual material and language. The Authority agrees with TVWorks that this gave adult viewers sufficient opportunity to establish that the programme was unsuitable for children and to make a decision about their children’s viewing.
 Accordingly, the Authority finds that TVWorks adequately considered the interests of child viewers. It declines to uphold the Standard 9 complaint.
Standard 8 (programme information)
 Mr Marsh complained that advertising Californication as a “comedy” in TV guides deceived and disadvantaged viewers. As the content of television guides is not a matter of broadcasting standards, Standard 8 does not apply. The Authority does not uphold this part of the complaint.
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 a majority of the Authority upholds the complaints that the broadcast by TVWorks Ltd of Californication on 17 January 2008 breached Standard 1 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. Having considered all the circumstances of the complaint, and taking into account that the decision to uphold the complaint was not unanimous, the Authority concludes that an order is not appropriate. It considers that the publication of its decision is sufficient to clarify the Authority’s expectations surrounding sexual content of this nature.
Signed for and on behalf of the Authority
21 April 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Peter Marsh’s letter of complaint – 23 January 2008
2. TVWorks’ request for standards to be specified by Mr Marsh – 31 January 2008
3. Mr Marsh’s formal complaint – 13 February 2008
4. Rod Valenta’s formal complaint – undated
5. TVWorks’ decision on Mr Marsh’s complaint – 27 February 2008
6. TVWorks’ decision on Mr Valenta’s complaint – 27 February 2008
7. Mr Marsh’s referral to the Authority – 29 February 2008
8. Mr Valenta’s referral to the Authority – 11 March 2008
9. TVWorks’ response to the Authority on Mr Marsh’s referral – 12 March 2008
10. TVWorks’ response to the Authority on Mr Valenta’s referral – 25 March 2008008