Martin and SKY Network Television Ltd - 2002-081
- P Cartwright (Chair)
- B Hayward
- R Bryant
- J H McGregor
- Lewis Martin
BroadcasterSKY Network Television Ltd
Commando – film – screened at 1.15pm – violent – unsuitable for children – inappropriately classified
Standard S20 – unacceptable violence – uphold
Standard S22 – some violence involving a child – uphold
Standard S23 – violence and language unsuitable at that time – uphold
Standard S26 – extreme methods not capable of easy imitation – no uphold
This headnote does not form part of the decision.
 The film Commando was screened at 1.15pm on 15 December 2001 on the Sky Movie Channel. Rated "M", the film is of the action genre and starred Arnold Schwarzenneger.
 Lewis Martin complained to Sky Network Television Ltd, the broadcaster, that in view of the quantity and explicitness of the violence, it was unsuitable for children and should have been classified as "18".
 In response, Sky described the violence as "cartoonish" and unbelievable, although it might not have been appropriate for screening on a Saturday afternoon. It advised that a parental lock system was available and Sky subscribers were able to choose to block films by classification.
 Dissatisfied with Sky’s response, Mr Martin referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority upholds the complaint. It declines to impose an order.
 The members of the Authority have viewed a tape in full of the film complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The action film Commando was screened at 1.15pm on 15 December 2001 on the Sky Movie Channel. It starred Arnold Schwarzenneger, and was rated "M".
 Mr Martin complained that the film Commando contained violent scenes which were unsuitable for children. Moreover, he wrote, the violence would distress children and screening the film at that time indicated that the broadcaster had not been mindful of the effect of the film on children. He also complained about the methods of inflicting pain included in the film. In his complaint, Mr Martin explained that he had seen the two violent sequences about which he complained while "channel surfing".
 Mr Martin maintained that the film should have been rated "18".
 Sky considered the complaint under the standards in the Subscription Television Code of Broadcasting Practice nominated by Mr Martin. Under the standards, pay broadcasters acknowledge:
S20 That programmes screened during children's normally accepted viewing times should be acceptable for them.
S22 That violence is unacceptable if it is presented in a manner which will unnecessarily disturb, alarm or distress children during their generally accepted viewing periods.
S23 That they will bear in mind the effect any programme might have on children during their generally accepted viewing periods.
S26 That devices and methods of inflicting pain or injury – particularly if capable of easy imitation – will not be shown without the most careful consideration.
The Broadcaster’s Response to the Complaint
 While acknowledging that the film was violent, Sky argued that it was "so over the top as to be utterly unbelievable". Moreover, it maintained that it was "almost self-parodying" and laughable at times. Nevertheless, it continued:
We agree with you that Commando might not be an appropriate film for screening on a Saturday afternoon when children may be viewing.
 Sky advised that a "Parental Lock" system was available free to Sky digital subscribers, which allowed subscribers to choose to block programmes by classification. Many individual subscribers, it wrote, "routinely block M films".
The Referral to the Broadcasting Standards Authority
 Because Sky did not undertake to refrain from screening films like Commando at times when children might be watching, Mr Martin referred his complaint to the Authority. Further, he wrote, he did not accept Sky’s description that the violence contained in film was "unbelievable".
 Mr Martin noted that Sky had not addressed the specific standards raised in his complaint. He questioned whether Sky had acted responsibly in screening the film when children could be watching.
 In response to Sky’s reference to the "Parental Lock", Mr Martin wrote:
To say that "many families routinely block ‘M’ films" implies that many others don’t, either because they don’t know how to, don’t even know it can be done, or have inadvertently failed to do so. There are many people who do not have either the knowledge, or the inclination, to take this level of technical control of a machine. Moreover many children could easily circumvent the blocking, one way or another. I do not believe that the locking system by itself fulfils Sky’s obligation as a broadcaster to ensure that inappropriately violent films are not viewed by children.
The Broadcaster’s Response to the Authority
 Sky advised the Authority:
The film is fairly typical of the action genre. The "action" is so over the top at times that the film almost appears to be self-parodying. We do recognise however that the element of parody would be somewhat lost on children and we will use our best endeavours to ensure that in the future it is screened at times when children are less likely to be watching (for example in a later time slot). We do note however that Commando is not a "restricted" movie and that the "M" rating we have given it is in accordance with the classification given to it by the Film and Video Labelling Body.
 Sky said that it was "not possible" to screen "G" rated films at all the times when children might be watching the movie channels. Consequently, as "a responsible broadcaster", Sky said it made available to subscribers a parental lock facility free of charge. Further, free assistance was available to viewers who required assistance in programming a parental lock.
The Complainant’s Final Comment
 In his final comment, Mr Martin expressed concern that Sky had not considered his complaint under the standards that he had nominated. He suggested that Sky’s letter contained "a tacit admission" that the film should not have been shown at a time when children might be watching. He also pointed out that the parental lock facility, described by Sky to apply to films with a rating below "18", was only available to subscribers of the digital service.
The Authority’s Determination
 Mr Martin viewed parts of the film Commando screened on the Sky Movie Channel beginning at 1.15pm. Mr Martin referred to two specific scenes which, he argued, contained a degree of violence which was unacceptable at a time when children could well be watching. Both scenes involved impalings. In the first, a fight finished when one man was thrown into a piece of furniture and he died with a 12 inch piece of broken wood protruding from his chest and blood emerging from his mouth. In the other scene complained about, the fight finished when a large piece of metal piping was taken from the wall and run through the chest of the vanquished man.
 Sky acknowledged that the film contained violence, but argued that it was fairly typical of the action genre, and, at times, almost appeared to be self-parodying. It also pointed out that Sky was a subscription television service and a parental lock facility was available so that subscribers with Sky digital could choose to block films rated "M".
 Sky did not uphold the complaint, and in its response to Mr Martin failed to advise him, as it is required to do so under s.7(3) of the Broadcasting Act 1989, that, if dissatisfied with Sky’s response, he was able to refer his complaint to the Authority. The Authority observes that Sky’s omission amounted to failure to follow proper processes for determining complaints.
 Mr Martin complained that the broadcast breached standards 20, 22, 23 and 26 of the Standard Subscription Television Code of Broadcasting Practice. Mr Martin noted that he viewed only parts of the film. The Authority has viewed in full the film which began screening at 1.15pm.
 Standard 20 refers to children’s normally accepted viewing times and requires that programmes screened during such times should be acceptable to children. As Sky acknowledges, Saturday afternoon is a normally accepted viewing time for children and the film Commando contained a considerable amount of violence. The Authority finds that standard 20 was breached because violent episodes complained about (described in paragraph  above) are not acceptable for children during their normally accepted viewing time. The Authority does not accept Sky’s argument that the violence in the film was portrayed as "cartoonish", laughable and "almost self-parodying". In the Authority’s opinion, children would not necessarily make these distinctions.
 The Authority reaches a similar conclusion on standard 22 for the same reasons. It believes that the violence involved in the two impalings could "unnecessarily disturb, alarm, or distress children".
 Standard 23 is similar to the standards 20 and 22 and, for similar reasons, the Authority considers that this standard was also breached. The Authority notes the broadcaster’s comment that it will use its best endeavours to ensure that in future that the film will be screened at a later time when children are less likely to be watching.
 The Authority has reached its findings on standards 20, 22 and 23 because of the explicit violence as evidenced by the two impalings complained about. These standards, it considers, encapsulate the substance of the concerns expressed by Mr Martin. However, he also referred to possible imitation of the methods of violence portrayed. As it considers that the variety of violent methods of inflicting pain and injury used in the film are not capable of easy imitation, the Authority does not accept that standard 26 was breached.
 The Authority notes the broadcaster’s argument about the availability of the "Parental Lock" system which allows subscribers only with Sky digital (but not for Sky terrestrial) to choose to block programmes by classification. However, it prefers the complainant’s contention that the locking system by itself does not fulfil Sky’s obligation as a broadcaster to ensure that inappropriately violent films are not viewed by children.
 The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". The Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. In addition, for the reasons given in this decision, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In coming to this conclusion, the Authority has taken into account all the circumstances of these complaints, including the extent of the explicit violence screened, and the potential impact of an order.
 For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion.
For the above reasons, the Authority upholds the complaint that the broadcast by Sky Network Television Ltd of the film Commando at 1.15pm on 15 December 2001 on the Sky Movie Channel breached standards 20, 22 and 23 of Standard Television Code of Broadcasting Practice for Subscription Television.
 Having upheld a complaint, the Authority may impose orders under ss. 13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.
 Mr Martin argued for an order which required the publication of a summary of the decision in "Sky Watch". He also suggested a voluntary donation from Sky to the New Zealand Peace Foundation.
 Sky began by apologising to Mr Martin and noted that it treated seriously the few complaints that it received. It said that it had decided to establish a formal "Complaints Committee" to ensure that complaints were reviewed by a range of people within the company. It expressed the hope that this would ensure that its internal decisions on complaints reflected the wider community.
 The Authority notes that it considers that Sky’s action is responsible. Furthermore, it considers that it is sufficient in the circumstances and concludes that it is not necessary to impose an order.
Signed for and on behalf of the Authority
13 June 2002
The following correspondence was received and considered by the Authority when it determined this complaint:
- Lewis Martin’s Complaint to Sky Network Television Ltd – 14 December 2001
- Sky’s Response to Mr Martin – 16 January 2002
- Mr Martin’s Referral to the Broadcasting Standards Authority – 28 January 2002
- Sky’s Response to the Authority – 5 February 2002 (received 8 March 2002)
- Mr Martin’s Final Comment – 17 March 2002
- Mr Martin’s Submission on an Order – 12 May 2002
- Sky’s Submission on an Order – 21 May 2002