McCaw and SKY Network Television Ltd - 2015-011
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Mike McCaw
BroadcasterSKY Network Television Ltd
[This summary does not form part of the decision.]
The music video for Nicki Minaj's song 'Only' was broadcast on MTV at 6.50pm, in a segment classified MC. The Authority upheld the complaint that the numerous expletives and sexual references in the video were distasteful and unsuitable for uncensored broadcast at a time when younger viewers were watching. The video was incorrectly classified MC when it should have been 16LC and the explicit adult content exceeded audience expectations of the MC classification. The incorrect classification also meant that filtering technology would not have been as effective in preventing children from viewing the video as it should have been.
Upheld: Good Taste and Decency, Children
Order: Section 16(4) – $1,500 costs to the Crown
 The music video for Nicki Minaj's song 'Only', broadcast on MTV, contained graphic images and frequent use of the words 'niggers', 'bitches' and 'fuck' as well as references to sexual acts.
 Mike McCaw identified specific sexually and otherwise explicit lyrics in the song and complained that the music video was a distasteful and 'uncensored' broadcast at a time that younger viewers were likely to be watching.
 Having not received a response from the broadcaster within the statutory timeframe, Mr McCaw referred his complaint to this Authority. In its response to the Authority, SKY upheld the complaint on the basis the video was incorrectly classified. However because this occurred only after the complaint referral, our task is to assess whether standards were breached, as opposed to whether the action taken by SKY in upholding the complaint was sufficient.1
 The issue therefore is whether the broadcast breached the good taste and decency and children standards, as set out in the Pay Television Code of Broadcasting Practice.
 The music video was broadcast on MTV at 6.50pm on Saturday 17 January 2015. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Did the broadcast threaten current norms of good taste and decency?
 The good taste and decency standard (Standard P2) states that current norms of good taste and decency should be maintained consistent with the context of each programme and its channel.
 Mr McCaw complained about the repeated use of the words 'niggers' and 'bitches' and also the repeated use of the word 'fuck' as both an expletive and as a reference to sexual acts. He noted some lyrics referred to group sex.
 SKY said that while the music video pushed boundaries, it had usually been correctly classified as 16LC (meaning the broadcast is not suitable for viewers under 16 years old and contains language and content that may offend). This meant the parental lock facility could be used to ensure the video was not inadvertently viewed by children and others who do not wish to see that sort of content. Due to staff error, this particular broadcast of the video occurred in a music segment which had been classified MC (meaning the broadcast is suitable for mature audiences aged 16 years and over, and content may offend). SKY acknowledged that this classification did not give as strong a warning as the 16LC classification, and it therefore upheld the complaint, apologised to the complainant and reinforced to staff that particular care needs to be taken to ensure that all broadcasts of the video have the correct classification applied.
 In his final comments to the Authority, Mr McCaw questioned whether even the 16LC classification was sufficient, given the level of offensive language and sexual references in the video.
 The 'Only' music video contained the following language and images which in our opinion viewers may have found potentially offensive or disturbing:
- repeated use of the words 'fuck', 'nigger' and 'bitches'
- references to group sex including having 'them eat [Ms Minaj's] ass like a cupcake'
- references to sexual acts and body parts such as:
- I never fucked Wayne, I never fucked Drake
- Big titties, big butt too
- Tell 'em bitches blow me
- I never fucked Nicki, that's fucked up. If I did fuck she'd be fucked up. Whoever is hitting isn't hitting it right, 'cuz she act like she need dick...
- imagery containing suggestions of sexual violence and torture associated with BDSM (Bondage/ Discipline/ Dominance/ Submission/ Sadism/ Masochism) and set in an apparent dungeon with Ms Minaj styled as a dominatrix
- brief horror-style shots of shadowed/masked figures.
 When we determine a complaint about good taste and decency we take into account the context of the broadcast, which here includes:
- the segment containing the video was classified MC
- the nature of the channel, MTV
- the availability of filtering technology on pay television
- audience expectations of the channel and of music videos generally
- audience expectations of Ms Minaj's music.
 MTV is described as a music and entertainment channel that is targeted at 16- to 29-year-olds.2 Music videos showcase a wide range of musical and artistic styles, which are often unique to the particular artist. They can frequently contain adult content that some viewers may find challenging. Ms Minaj, and rap/hip-hop music in general, are well-known for using explicit language and sexual material in songs and videos.
 Given the explicit and repeated adult language and images we agree with the broadcaster that the classification of M and a C warning label (content may offend) were wholly inadequate. As well as the numerous expletives and overt references to sexual acts, the video implied a combination of sex and violence, and torture. While MTV viewers may expect some music videos, especially for a song by Ms Minaj, to contain challenging content, the classification and warning given to the 'Only' video did not indicate this high level of adult content.
 In our view a 16LC classification would have better prepared viewers for this material. The approach developed by the Authority, in its application of the good taste and decency standard, is to require broadcasters to give the audience sufficient information to regulate their own viewing behaviour. Classifications and warnings play an important role in providing this information. The inadequate classification in this instance meant that viewers were more likely to be surprised and therefore offended or disturbed by the video's content. While we agree the video was incorrectly classified, we are not convinced it warranted an even higher rating of 18, usually reserved for graphic sexual content, violence and excessive coarse language, and in particular a combination of these.3
 A further consequence of the incorrect classification was that filtering technology (otherwise known as the parental lock facility) would have been ineffective in preventing younger viewers from inadvertently seeing the video, if the filtering was set to block any content classified 16 and above.
 For these reasons we find a breach of the good taste and decency standard.
Did the broadcaster adequately protect children from unsuitable content?
 The children standard (Standard P3) states that broadcasters should ensure that child viewers are protected from unsuitable content. The purpose of the standard is to enable children to be protected from broadcasts which might adversely affect them.4 Similar considerations to those discussed under the good taste and decency standard are present when we consider a complaint under the children standard.
 Mr McCaw complained that the video was played 'uncensored' before 7pm, when younger viewers were likely to be watching. He felt that children should not be subjected to the explicit language contained in the video.
 The Authority has consistently recognised that pay television does not have time-bands in the same way as free-to-air television. This is because filtering technology allows parents to control their children's access to certain programmes. Essentially, this means that pay television channels such as SKY can broadcast programmes at any time of the day – so long as they still comply with the standards. However, in this instance, the inadequate M classification meant filtering technology set to block any content classified 16 and above would be ineffective, and therefore did not enable protection of children from unsuitable content, at a time when they were likely to be watching television.
 While some of the lyrical references to sexual acts may not have been fully understood by child viewers, other language was so explicit that it would undoubtedly have been noticed. Furthermore, many of the images in the clip – such as blood, bleeding victims and the shadowed/masked figures – may have been highly disturbing to children. Although MTV is targeted at an older age bracket (16- to 29-year-olds), this does not remove the broadcaster's obligation to use classifications and warnings appropriately on this channel.
 For these reasons we find that the children standard was also breached.
Freedom of Expression
 We acknowledge the importance of the broadcaster's right to freedom of expression under section 14 of the Bill of Rights Act 1990. Any restriction on the broadcaster's right to freedom of expression must be prescribed by law, reasonable and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990). Where the speech is particularly valuable, a correspondingly high level of protection will be afforded to those forms of expression.
 We are satisfied that upholding Mr McCaw's complaint would not unjustifiably limit the broadcaster's right to freedom of expression. We are not saying that the video should not have been broadcast – only that it should have been broadcast in a 16LC viewing environment that would have adequately informed viewers of the nature of the video and allowed them to avail themselves of filtering technology. This enables, rather than restricts, the right to freedom of expression as it encourages the free flow of information in order to assist the audience to make informed viewing choices and to exercise discretion in regard to their children's viewing.
 We note that this complaint was referred to us on the basis that SKY did not respond to the complainant as required within 20 working days. We remind the broadcaster of its statutory obligation to respond to formal complaints with a written decision within this period (if an extension has not been requested).
For the above reasons the Authority upholds the complaint that the broadcast by SKY Network Television Ltd of the music video for the Nicki Minaj song 'Only' on 17 January 2015 breached Standards P2 and P3 of the Pay Television Code of Broadcasting Practice.
 Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.
Submissions on provisional decision and orders
 Mr McCaw submitted that SKY should be ordered to pay $5,000 costs to the Crown. He argued it was the failure of the broadcaster to respond in time that led to the Authority becoming involved and incurring costs in determining the complaint, therefore the Crown should recover its costs. Mr McCaw also submitted this order was appropriate because SKY was found to have breached two standards, because SKY has had previous complaints upheld against it due to misclassification of material,5 and because a previous decision of the Authority about a song by Ms Minaj should have served as a reminder to SKY about appropriate use of classifications.6
 SKY explained that it has taken steps to improve the systems of warnings and classifications it has in place, in particular by removing 'some of the manual aspects of the process'. It apologised again for the human error which led to the incorrect classification being applied on the day that Mr McCaw viewed the music video, and asked that the Authority accept their apology for the error, acknowledge the steps that have been taken internally to ensure the error is not repeated and make no orders in relation to the error.
Authority's response to Mr McCaw's submissions
 Mr McCaw made a thorough and thoughtful submission. He pointed us to three previous upheld decisions concerning SKY which he argued were relevant in our consideration of orders. We have carefully reviewed each of these cases and, with respect, we are not persuaded that they are on point.
 The first decision, McElroy was issued in February 2013 and concerned an episode of a drama series.7 The Lambert decision was issued in May 2011 and focused on the discrepancy between the Australian classification which appeared on a historical documentary (MA15+) and the New Zealand M classification which appeared on the electronic programme guide.8 The Lord case concerned the use of one swearword during a programme broadcast on Prime TV so it was considered under free-to-air television standards, rather than pay television standards.9
 The circumstances of the present case, being a music video broadcast on MTV, are quite different, so we do not think that these previous cases suggest that there is some systemic problem within SKY with its classification systems. We could find only one previous upheld complaint against the MTV channel from 1998.10
 The question for us, then, is whether the circumstances of the present case warrant some order or penalty against the broadcaster. The wording of the Act is such that any order must be related to the standards breach, rather than any perceived breakdown in the broadcaster's complaints processes.
Authority's decision on orders
 In this case, something within the SKY system has gone wrong. What we think is a reasonably serious breach of broadcasting standards has occurred. As Mr McCaw has noted, we have upheld the complaint in relation to both good taste and decency and children.
 We think that this needs to be marked by some monetary consequence in addition to our findings. The marking of this breach in this way is for the purpose of reminding broadcasters that standards are important and that there is a need for broadcasters within their organisations to ensure that there are systems, staff training and staff selection which do everything reasonably possible to ensure that standards are maintained. We accept that SKY is a responsible broadcaster. We also accept that the breaches of standards which occurred here were a result of human error, and that SKY has acknowledged and apologised for that error. We do not however think that these acceptances can properly take us to a point where we say that no order against the broadcaster is warranted, given what was ultimately broadcast and has led to this complaint.
 In all of the circumstances and having regard to previous awards, we order that the broadcaster pay the sum of $1,500 costs to the Crown.
Pursuant to section 16(4) of the Act, the Authority orders SKY Network Television Ltd to pay to the Crown costs in the amount of $1,500 within one month of the date of this decision.
This order for costs shall be enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
25 September 2015
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Mike McCaw's referral to the Authority – 1 March 2015
2 SKY's response to the complaint – 4 March 2015
3 SKY's response to the referral – 30 April 2015
4 Mr McCaw's final comments – 18 May 2015
5 Mr McCaw's submissions on the provisional decision and orders – 27 July 2015
6 SKY's submissions on the provisional decision and orders – 29 July 2015
1 See sections 7 and 8 of the Broadcasting Act 1989
2 Mayall and SKY Network Television, Decision No. 2008-092, at 
3 See, for example, McElroy and SKY Network Television Ltd, Decision No. 2012-132
4 E.g. Harrison and Television New Zealand Ltd, Decision No. 2008-066
5 For example, McElroy and SKY Network Television Ltd, Decision No. 2012-132
6 Narayan and Humm FM, Decision No. 2014-119
7 McElroy and SKY Network Television Ltd, Decision No. 2012-132
8 Lambert and SKY Network Television Ltd, Decision No. 2010-180
9 Lord and SKY Network Television Ltd, Decision No. 2009-137
10 MacKay and Television New Zealand Ltd, Decision No. 1998-165