BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
American Sex – 2 December 2000 – content pornographic – offensive

Findings
Standard G2 – 9.30pm – warning – no sexual activity – no full frontal nudity – not gratuitous – majority – no uphold

This headnote does not form part of the decision.

Summary

An episode of American Sex was broadcast on TV3 between 9.30–10.30pm on Saturday 2 December 2000. The series was publicised as a light-hearted look at the American sex industry.

Dennis McLeod complained to TV3 Network Services Ltd, the broadcaster, that the programme was "nothing short of pornography". He said that such programmes should not be screened on television.

TV3 responded that American Sex screened an hour after the AO watershed, and was preceded by a written and verbal warning. Furthermore, it contained no full frontal nudity or explicit sexual activity and had been scheduled to follow a programme which was also adult oriented.

Dissatisfied with TV3’s decision, Mr McLeod referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, a majority of the Authority declines to uphold the complaint.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

Dennis McLeod complained to TV3 about the programme American Sex screened between 9.30–10.30pm on Saturday 2 December. He said that he was "totally shocked" at the parts of the programme which he had seen. He expressed concern that "young teenagers" might be watching a programme which he described as "nothing short of pornography". He considered that the programme should not have been screened on television at all, let alone at 9.30pm.

TV3 assessed the complaint against standard G2 of the Code of Broadcasting Practice
for Television, which requires broadcasters:

G2  To take into consideration currently accepted norms of decency and taste in language and behaviour, bearing in mind the context in which any language or behaviour occurs.

TV3 described American Sex as a documentary which considered various aspects of the sex industry in America and, it continued, the episode complained about had looked at, among other things, adult and pornographic film making. It was rated AO, TV3 noted, and had been preceded by a warning. Moreover, it was not screened before 9.30pm, and had been cut to ensure that it complied with the standards. In addition, the episode complained about, as happened with all the episodes in the series, had been scheduled so that it would follow a programme which would not appeal to younger viewers.

Assessing the complaint under standard G2, TV3 referred to the contextual matters noted above, and stated also that there was no full frontal nudity or sexual acts shown. It argued:

…while the content is frank in nature it does not exceed the bounds of what is acceptable for an adult to view.

Declining to uphold the complaint, TV3 considered that the contents of the programme were acceptable at 9.30pm, given the precise warning and the care taken in assembling the night’s line-up.

When he referred his complaint to the Authority, Mr McLeod noted that the TV Guide gave no indication that the content would be so explicit. He also noted TV3’s comment that the programme was not pornographic, observing nonetheless that the programme had looked at the making of pornographic films.

The Authority’s Findings

When the Authority considers a complaint under standard G2, it takes into account the context in which the broadcast complained about occurs. The context is relevant, but not decisive, to the Authority’s determination of whether the programme breached community standards of good taste and decency.

The Authority also had before it a complaint about the broadcast of an episode of American Sex on 9 December. Its decision on the standard G2 aspect about both programmes is the same. In that decision (2001- ), the complainant also raised standard G12 which relates to programmes screened in children’s normally accepted viewing times. In regard to standard G2, the Authority wrote:

The contextual factors which the Authority considers relevant on this occasion include the time of the broadcast; the programme’s AO classification; the fact that a warning, which the Authority considers to be clear and explicit, preceded the programme; and the adult focus of the preceding programme.

Having regard to the context of the broadcast, the Authority now considers whether currently accepted norms of good taste and decency were breached by the American Sex programme complained about. The programme’s content was clearly aimed at adult viewers. Nevertheless, unlike similar programmes also broadcast at 9.30pm about which complaints have been upheld (Hollywood Sex, 1999-232/233 and British Sex, 2000-040), American Sex did not focus on genitalia and sexual practices.

Accordingly, a majority of the Authority concludes that on balance standard G2 was not contravened. The majority also observes that to find a breach of standard G2 would be to interpret the Broadcasting Act in such a way as to place too great a limit on the broadcaster’s statutory right to freedom of expression.

A minority of the Authority disagrees. In the minority’s view, the absence of explanation or commentary contributed to an impression that the material was gratuitous and voyeuristic, and that the primary purpose of the programme was titillation.

While programmes which are scheduled during AO time and which are classified AO are intended for adult audiences, broadcasters do not have licence to schedule programmes at this time which would be likely to offend the reasonable adult viewer. The minority considers that this programme was at the outer limit of what was acceptable on free to air television at any time, and it finds the programme’s content was too explicit to be screened at 9.30pm. In these circumstances, the minority finds that the programme breached standard G2.

For the above reasons, a majority of the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
14 June 2001

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1. Dennis McLeod’s Complaint to TV3 Network Services Ltd – 5 December 2000
2. TV3’s Response to the Complaint – 31 January 2001
3. Mr McLeod’s Response to TV3 – 9 February 2001
4. Mr McLeod’s Referral to the Broadcasting Standards Authority – 9 February 2001
5. TV3’s Response to the Authority – 21 February 2001