McCarthy and TV3 Network Services Ltd - 2004-056, 2004-057
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Debra McCarthy
ProgrammeThe Mummy Returns promo
BroadcasterTV3 Network Services Ltd
Complaints under s.8(1)(a) of the Broadcasting Act 1989
The Mummy Returns – PGR – promo broadcast during Going Straight between 7.30pm and 8.30pm – broadcast the following day at 6.43pm during 3 News – promo allegedly broadcast too early – promo allegedly incorrectly classified
Standard 7 (appropriate classification) – promo appropriately classified PGR – not upheld
Standard 7 (compliance with classification band) and Guideline 7b
(i) Going Straight is PGR time – not upheld
(ii) 3 News (although itself unclassified) is in G time-band PGR – promo did not comply with classification band – upheld
Standard 9 (children¹s interests) and Guideline 9a broadcaster considered children¹s interests in rating promo PGR – not upheld
This headnote does not form part of the decision.
 A promo for the movie The Mummy Returns was broadcast on TV3 during Going Straight between 7.30pm and 8.30pm on 8 October 2003. It was also broadcast at 6.43pm during 3 News on 9 October 2003. The promo was rated PGR.
 Debra McCarthy complained to TV3 Network Services Ltd, the broadcaster, that it was inappropriate to broadcast promos for horror/supernatural movies before 8.30pm. She said one of her two children was sensitive and had nightmares, and broadcasters needed to take into account the emotional wellbeing of all children.
 Mrs McCarthy considered that the promo breached Standards 7 and 9 of the Free-to-Air Television Code of Broadcasting Practice. The standards and the relevant guidelines state:
Standard 7 Programme Classification
Broadcasters are responsible for ensuring that programmes are appropriately classified and adequately display programme classification information, and that time-bands are adhered to.
7b Broadcasters should ensure that all promos (including promos for news and current affairs) comply in content with the classification band in which they are shown. For example, promos for AO programmes shown outside Adults Only time must conform in content with the classification of the time-band in which they are broadcast.
Standard 9 Children¹s Interests
During children¹s 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 promo was classified PGR. The relevant aspects of Appendix 1 state:
PGR – Parental Guidance Recommended
Programmes containing material more suited for mature audiences but not necessarily unsuitable for child viewers when subject to the guidance of a parent or an adult.
PGR programmes may be screened between 9am and 4pm, and after 7pm until 6am.
News and current affairs programmes, which may be scheduled at any time and may, on occasion, pre-empt other scheduled broadcasts, are not, because of their distinct nature, subject to censorship or to the strictures of the classification system. However, producers are required to be mindful that young people may be among viewers of news and current affairs programmes during morning, daytime and early evening hours and should give consideration to including warnings where appropriate.
Broadcaster's Response to the Complainant
 TV3 declined to uphold the complaints. Under Standard 7, it advised Mrs McCarthy that the promo was rated PGR. Going Straight was PGR time, and 3 News was unclassified, TV3 advised.
 Under Standard 9, TV3 considered the requirement that broadcasters consider the interests of child viewers amounted to a "reasonable restriction" that it consider the interests of the "average child viewer"; not every child viewer "from the very sensitive to the very phlegmatic". It considered that the average child viewer of Going Straight or 3 News was "unlikely to be disturbed or alarmed by the screening of this correctly classified promo for the movie The Mummy Returns".
 TV3 advised Mrs McCarthy that to uphold her complaints would unreasonably and unjustifiably restrict the public¹s right to receive information and opinions of any kind, contrary to s14 of the New Zealand Bill of Rights Act 1990 (freedom of expression).
Referral to the Authority
 Dissatisfied with TV3's decision, Mrs McCarthy referred her complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. She said she did not accept that "advertising an inappropriate movie at an inappropriate time can be classed as 'freedom of speech"'.
Broadcaster's Response to the Authority
 TV3 maintained that the promo had been appropriately classified PGR. It said the monsters were not realistic and the "action" was clearly fictional.
 In relation to the promo being broadcast during the news hour, it wrote:
3 News is unclassified. No time band consideration is relevant. As a general rule the [Standards] Committee considers that a PGR promo is appropriate for screening during news and current affairs programming as it is recognised that young children will not choose to watch this type of programming by themselves. Parents of young children are aware that a news programme may well contain material that unsupervised young children will find distressing or frightening. If young children are watching news and current affairs programming it is likely that they are doing so because their parents or caregivers are watching the broadcast. So, "parental guidance" is provided.
Complainant's Final Comment
 Mrs McCarthy rejected TV3's argument about the monsters not being realistic, stating that they were "very real in a child's mind".
 Mrs McCarthy maintained the promo should not have been shown before 8.30pm. In response to TV3's contention about the news hour, she stated:
Providing "parental guidance" for an advert that lasts 30 seconds is impossible! By the time you realise what¹s happening it is too late! Children of a young age invariably always play where the parents/caregivers are, therefore when we are watching the news they are playing in the same room. They normally do not watch the news and their attention is only usually caught by the adverts, because this is what adverts are made to do, be loud and attention getting. Any distressing news segments are always announced by the news presenter prior to the item giving the parent/caregiver adequate time to react.
 The members of the Authority have viewed a tape of the promo complained about and have read the correspondence listed in the Appendix. The Authority determines the complaints without a formal hearing.
Standard 7 promo classification
 The Authority considers that PGR was the appropriate classification for the promo complained about. In its view, the promo met the criteria for PGR classification because it was "not necessarily unsuitable for child viewers when subject to the guidance of a parent or an adult". The Authority therefore does not uphold the aspect of the complaint that the promo was inappropriately classified.
Standard 7 PGR promo broadcast during Going Straight.
 Mrs McCarthy complained that the promo should not have been broadcast during Going Straight. The Authority notes that Going Straight is broadcast from 7.30pm to 8.30pm, during the PGR time-band. As the promo complained about was appropriately classified PGR, the Authority concludes that its broadcast during Going Straight did not breach Standard 7. Therefore it does not uphold this aspect of the complaint.
Standard 7 PGR promo broadcast during 3 News
 Mrs McCarthy also complained that the promo should not have been broadcast during 3 News. 3 News is broadcast each day between 6pm and 7pm.
 In Decision No: 2003-138/140 dated 15 December 2003, the Authority ruled that a PGR promo for The Strip, broadcast at 6.30pm during 3 News, breached Standard 7 of the Television Code. The Authority recorded:
The Authority accepts that 3 News is not classified and yet it is broadcast during the G time-band. However, the Authority does not accept TV3's argument that the G time-band was "suspended" by the news programme and, therefore, the promos were shown in an "unclassified" time-band. In the Authority's view, news programmes because of their nature, constitute the sole exception to the time-bands. The PGR definition is clear that PGR programmes, including promos, may not be screened between 4pm and 7pm. They do not get a "reprieve" from the time-band rules merely because they are screened during the news. The Authority considers that this view has been implicit in its determinations over the years.
 For the reasons given in Decision No: 2003-138/140, the Authority upholds the aspect of the complaint that the broadcast of a PGR promo for The Mummy Returns at 6.43pm during 3 News breached Standard 7.
Standard 9 children¹s interests
 Standard 9 requires broadcasters to consider the interests of child viewers. In accordance with Guideline 9a, during children¹s normally accepted viewing times broadcasters should avoid screening material which would disturb or alarm them.
 In the Authority's view, the fact that TV3 appropriately classified the promo PGR demonstrates that the broadcaster considered the interests of child viewers as required by Standard 9. Therefore it does not uphold the aspect of the complaint that the promo breached Standard 9.
 In relation to the broadcast of the promo during 3 News, the Authority notes that broadcasting a PGR promo during the G time-band might be a factor suggesting that a broadcaster had not adequately considered the interests of child viewers. The Authority acknowledges, however, that at the time of the broadcast complained about, TV3 was operating on an assumption that the G time-band was "'suspended" by the early news programme. (The promo for The Mummy Returns was broadcast during 3 News on 9 October 2003. The precedent for this decision Decision No: 2003-138/140 was issued on 15 December 2003.)
For the reasons above, the Authority upholds the complaint that the broadcast by TV3 Network Services Ltd of a promo for The Mummy Returns during 3 News on 9 October 2003 breached Standard 7 of the Free-to-Air Television Code of Broadcasting Practice.
It declines to uphold the other complaint.
 Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989.
 The Authority is aware that its view that the underlying time band for the early news hour is G time does not reflect current industry practice. The question of the classification of the material which screens within the early news hour is currently being discussed with the broadcasters. Therefore, the Authority considers that an order is not appropriate on this occasion.
Signed for and on behalf of the Authority
27 May 2004
The following correspondence was received and considered by the Authority when it determined this complaint:
- Debra McCarthy¹s Formal Complaint to TV3 Network Services Ltd – 28 October 2003
- TV3¹s Response to the Formal Complaint – 26 November 2003
- Mrs McCarthy¹s Referral to the Authority – 12 December 2003
- TV3¹s Response to the Authority – 21 January 2004
- Mrs McCarthy¹s Final Comment – 5 February 2004