McElroy and SKY Network Television Ltd - 2012-132
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Rosemary McElroy
BroadcasterSKY Network Television Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Shameless – programme contained sex scenes, swearing and violence – allegedly in breach of good taste and decency and children’s interests standards – broadcaster upheld complaint under content classification, warning and filtering standard
Action Taken: Standard P1 (content classification, warning and filtering) – action taken by the broadcaster was sufficient – not upheld
Standard P2 (good taste and decency) – incorrect classification and inadequate warning label meant that viewers were not sufficiently informed of the programme’s likely content – viewers were therefore denied the opportunity to make a different viewing choice and were more likely to be offended – upheld
Standard P3 (children’s interests) – broadcaster sufficiently protected child viewers from unsuitable content by classifying the programme 16 – not upheld
This headnote does not form part of the decision.
 An episode of Shameless, a comedy-drama series centred on British underclass and working class culture, contained two interspersed sex scenes involving a heterosexual and homosexual couple respectively. The episode also contained violence and expletives, including the word “cunt” and derivatives of “fuck”. The programme was classified “16C”, indicating it was suitable for viewers aged 16 and over and contained “Content” which may offend, and was broadcast on UKTV at 11.45am on Monday 8 October 2012.
 Rosemary McElroy made a formal complaint to SKY Network Television Ltd, the broadcaster, alleging that the homosexual sex scene amounted to “hard-core pornography” that warranted a higher classification than “16C”. In her view, the sex scene, in conjunction with an “endless barrage” of swearing, meant the programme should have been classified “18” and carried warning labels for sexual content and offensive language.
 SKY found that the programme breached Standard P1 (content classification, warning and filtering) of the Pay Television Code of Broadcasting Practice. It apologised to the complainant on behalf of its Head of Programming & Production, agreeing that the programme contained material that was not suitable for the “16” classification and should have included the warning label “VSL” for violence, language and sexual content that may offend. SKY said that it was taking steps with the content provider to improve its certification procedures.
 Dissatisfied with the action taken by the broadcaster, Ms McElroy referred her complaint to this Authority.
 The issues are:
- firstly, whether the action taken by the broadcaster, having upheld a breach of Standard P1 (content classification, warning and filtering), was sufficient; and
- secondly, whether the programme breached Standards P2 (good taste and decency) and P3 (children’s interests) of the Code.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Was the action taken by the broadcaster, having upheld a breach of Standard P1, sufficient?
 Standard P1 states that viewers should be informed by regular and consistent advice about programme content (including classifications and warnings). We agree that the programme should have been classified “18” and carried warning labels for violence, language and sexual content. It was a combination of factors, and not solely the sex scene complained about, that in our view, took the episode beyond its “16C” certification (discussed further below).
 We think that SKY took appropriate action to remedy the breach by upholding the complaint under Standard P1, apologising to the complainant, and taking steps to improve certification procedures.
 Accordingly, we decline to uphold the complaint that the action taken was insufficient.
Did the programme threaten standards of good taste and decency?
 Standard P2 states that current norms of good taste and decency should be maintained consistent with the context of each programme and its channel.
 SKY declined to uphold a breach of this standard, based on the following contextual factors:
- UKTV was aimed at adults aged 25–54 years
- the sex scene subject to complaint was short
- it did not contain any nudity
- it was intertwined with a heterosexual sex scene
- it was not designed to titillate but was central to the episode’s storyline
- Shameless was a critically acclaimed drama, not a pornographic programme
- given the nature of the channel and the programme, children were unlikely to be watching.
 Ms McElroy argued that the sex scene did contain nudity and was designed to titillate. She said that her complaint was not limited to SKY’s certification procedures, but extended to the “testing of boundaries in introducing increasingly daring and seriously lewd pornographic material” during normal viewing times.
 As we have said, we think that a combination of factors took the programme beyond its “16C” classification. In addition to the sex scenes, the episode contained violence and excessive swearing. Viewed cumulatively, this material warranted a higher classification of “18”.
 We accept that the sex scene subject to complaint was confronting, not because it involved a homosexual couple, but because it was explicit, contained nudity (albeit only the men’s buttocks), and was intertwined with another sex scene. We disagree however that the sex scene was “pornographic”. It was simulated, it was not prolonged, no genitalia were shown, and it was relevant to the storyline and character development. Nevertheless, we consider that it would have been unexpected in a programme classified “16” and which did not carry an explicit warning for sexual content.
 Guideline (a) to the good taste and decency standard states that the use of appropriate classifications, warnings and filtering technology in accordance with Standard P1 may assist broadcasters to comply with the standard. Guideline (b) states that broadcasters should consider the likely expectations of the audience for a channel, a programme and its scheduling. Here, the incorrect classification and inadequate use of specific warning labels meant that viewers were not properly informed of the programme’s likely content, meaning they were denied the opportunity to make a different viewing choice, and were therefore more likely to be surprised and offended by the content.
 For these reasons, we find that SKY did not comply with the requirement to maintain standards of good taste and decency, and we uphold the complaint as a breach of Standard P2.
 We comment, however, on Ms McElroy’s submission that the content was inappropriate for “normal viewing times”. Pay television does not have the same time-bands that are adhered to on free-to-air television.1 The Pay Television Code recognises that, where filtering technology is available, which allows parents to block content they do not wish their children to watch, content classified “18” may be screened at any time, providing other standards are adhered to. Had this programme been correctly classified “18” and displayed adequate warnings, it would not likely have breached the good taste and decency standard.
Did the broadcaster adequately consider children’s interests?
 Standard P3 requires broadcasters to ensure that child viewers are protected from unsuitable content. A “child” is a person under 14 years of age for the purposes of the Pay TV Code.
 Ms McElroy argued that, by broadcasting the programme at 11.45am during the school holidays, SKY did not adequately consider children’s interests.
 As noted above, there are no time-bands on SKY, and content can screen at any time provided filtering technology is available, and programmes comply with the standards. Though we have found that the content was not correctly classified, the “16” rating was sufficient to alert parents there would be content unsuitable for child viewers, defined as being under the age of 14. Further, UKTV is not targeted at, or promoted to children, nor is it likely to appeal to them. The channel is “dedicated to delivering the best of British television”,2 and typically showcases detective series, soap operas, dramas and quirky comedies aimed at a mature audience. Shameless was played between One Night and That Mitchell and Webb Look, which were both rated “M” for mature audiences aged 16 and over, so it was not screened adjacent to content aimed at children.3
 Accordingly, we are satisfied that the broadcaster fulfilled its obligation to protect child viewers, and we decline to uphold the complaint under Standard P3.
For the above reasons the Authority upholds the complaint that the broadcast by SKY Network Television Ltd of Shameless on Monday 8 October 2012 breached Standard P2 of the Pay Television Code of Broadcasting Practice.
 Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. This decision is sufficient to remind the broadcaster of the need to utilise appropriate classifications and warnings in order to adequately inform its audience, so that viewers can avoid being unduly offended.
Signed for and on behalf of the Authority
27 February 2013
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Rosemary McElroy’s formal complaint – 12 October 2012
2 SKY’s response to the complaint – 22 November 2012
3 Ms McElroy’s referral to the Authority – 1 December 2012
4 SKY’s response to the referral – 17 December 2012
5 Ms McElroy’s final comment – 18 January 2013
6 SKY’s final comment – 24 January 2013
7 Further comment from Ms McElroy – 25 January 2013
1See Appendix 1 of the Free-to-Air Television Code of Broadcasting Practice, and Standard P1 of the Pay Television Code of Broadcasting Practice.
3See guideline (c) to Standard P3