BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The Authority did not uphold a complaint under the good taste and decency standard about the use of coarse language in the American action comedy film Beverly Hills Cop. Taking into account relevant contextual factors, including the AO classification, time of broadcast at 8.30pm during adult viewing time, clear warning for frequent use of coarse language, and audience expectations of the film and TVNZ DUKE, the Authority was satisfied the broadcaster gave viewers sufficient information to regulate their own, and their children’s, viewing. In the context, the broadcast did not threaten community standards of good taste and decency and the broadcaster adequately enabled child viewers to be protected from potentially unsuitable content.

Not Upheld: Good Taste and Decency, Children’s Interests

The broadcast

[1]  Beverly Hills Cop is an American action comedy film starring Eddie Murphy as Axel Foley, a street-smart Detroit cop who visits Beverly Hills, California to solve the murder of his best friend.

[2]  The film was broadcast at 8.30pm on 27 December 2019, on TVNZ DUKE. It was preceded by the following audience advisory:

This programme is rated adults only. It contains frequent use of coarse language.

[3]  In considering this complaint, the members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The complaint

[4]  Lovina McMurchy complained that the frequent use of coarse language in the film breached the good taste and decency standard of the Free-To-Air Television Code of Broadcasting Practice:¹

This movie script uses fuck, fucking and shit as every third word. It’s an excessive amount of swearing. I try to teach my teenagers to not swear but not sure how I can do that with shows like this free to air.

[5]  In response to TVNZ’s decision on her complaint, Ms McMurchy added the following points in her referral to the Authority:

• The standards are out of tune with current culture (including New Zealand’s diverse, multicultural society) and methods of viewing.
• The fact the movie is a ‘cult classic’ should not mean profanities are more acceptable.
• ‘I needed to send my 10-year-old and 12-year-old from the room due to the high frequency of profanity in the movie.’
• Many older children and teens are still up after 8.30pm at night, and if they cannot safely watch free-to-air television at that time, they are driven to online content, ‘which further diminishes public viewing’.
• It is not reasonable to assume that adults, caregivers and children have seen the relevant audience advisory as people typically switch through various channels and are likely to have missed the beginning. This also means children are likely to inadvertently switch over to unsuitable content.
• ‘It is disappointing to see standards so low that a parent prefers their child to be on [video-on-demand platforms] (where we can better control and monitor viewing) [than] on broadcast TV.’

The broadcaster’s response

[6]  TVNZ did not find any breach of the good taste and decency standard, saying:

• Beverly Hills Cop was classified AO and commenced screening at 8.30pm. Broadcasters are permitted to screen AO programmes after 8.30pm, which is outside of children’s normally accepted viewing times.
• The movie was preceded by a written warning, enabling viewers to make an informed decision about whether they wished to continue watching.
• The Authority has previously determined in relation to the children’s interests standard that the ‘f word’ is not ‘strong adult content’ that should not be broadcast close to 8.30pm, finding:²

Adults Only content is permitted from 8.30pm onwards…It is reasonable to expect that AO programming will contain AO material, including some degree of coarse language…While we accept that generally the word ‘fuck’ will be AO content, [the broadcaster is not required to] eliminate all AO content close to 8.30pm – only strong adult content. Four instances of the word ‘fuck’, used in a mild and humorous manner, did not in our view amount to ‘strong adult material’ which warranted restriction to a later time.

• The Authority also noted in an earlier decision that:³

TVNZ pointed out that broadcasters were permitted to show AO material at 8.30pm, which was not considered children’s normal viewing time…We agree with the broadcaster. Parents must take some responsibility for what their children view after 8.30pm. The 8.30pm watershed marks the end of children’s viewing times and the beginning of the AO time-band, regardless of the seasons and whether or not it is daylight saving.

• ‘Beverly Hills Cop is an extremely well-known movie and the Committee considers that most adult viewers would be aware of the likely themes and content of the movie, even if they had not viewed it before.’
• The movie was correctly classified and screened at an appropriate time (responding to the complainant’s point that the movie was shown free-to-air).
• The Film and Video Labelling Body rated the movie M-VL indicating it is suitable for mature audiences aged 16 years and over.
• In this context the movie would not offend or disturb a significant number of viewers.

The relevant standards

[7]  The good taste and decency standard (Standard 1) requires broadcasters to maintain current norms of good taste and decency consistent with the context of the programme and the wider context of the broadcast. Relevant contextual factors include the programme classification, time of broadcast, any audience advisories (including warnings), the target and likely audience, and audience expectations. Broadcasters should also take effective steps to inform audiences of the nature of the programme, and enable viewers to regulate their own and children’s viewing behaviour.⁴

[8]  In her referral to us, Ms McMurchy also identified the children’s interests standard as having been breached (Standard 3). This standard states that broadcasters should ensure children can be protected from broadcasts which might adversely affect them. This may include material that unduly disturbs them, is harmful or is likely to impair their development.

[9]  Under section 8(1B) of the Broadcasting Act 1989, we are only able to consider the standard(s) raised in the original complaint to the broadcaster. The High Court has clarified that in certain circumstances:⁵

…it is permissible [for the Authority] to fill gaps…or cross boundaries between Code standards…but only if these things can be done within the wording, reasonably interpreted, of the original complaint, and if a proper consideration of the complaint makes that approach reasonably necessary…

[10]  In this case we considered it was evident from Ms McMurchy’s original complaint that her primary concern was the impact of the film’s coarse language on her children and her efforts to teach them not to use such language. We therefore considered that the children’s interests standard could reasonably be implied in her complaint, even though she did not explicitly identify Standard 3.

[11]  As the same contextual considerations are important and relevant to our assessment under each of these standards, we have considered Standard 1 and Standard 3 together in making our decision.

Our decision

[12]  When we consider any complaint about broadcasting standards, our starting point is to recognise the importance of the right to freedom of expression, which is protected by the New Zealand Bill of Rights Act 1990. This includes both the broadcaster’s right to offer ideas and information and a range of programmes, and the audience’s right to receive those. We may only interfere and uphold a complaint where we find actual or potential harm caused by the broadcast complained about, at a level which justifies regulatory intervention and placing a reasonable limit on freedom of expression. The harm alleged in this case is through the broadcast of frequent coarse language in the film, particularly in relation to younger viewers.

[13]  As we have noted above, the context of the broadcast is crucial to our assessment of potential harm under the good taste and decency and children’s interests standards, including the steps taken by the broadcaster to inform audiences of the nature of the programme. We considered the following contextual factors were relevant in this case:

• The movie was classified AO (Adults Only) and broadcast at 8.30pm during the AO timeband, indicating it was not targeted at younger viewers.
• The movie was preceded by a clear written warning for ‘frequent use of coarse language’, which remained onscreen for a number of seconds. In this respect we noted the advisory was displayed for a relatively long time compared to what we typically see or expect.
• There is an established audience expectation in relation to this movie (and its sequels), having first been released in 1984 and broadcast on free-to-air television numerous times since then.⁶ The Authority has not previously received a complaint about the broadcast of this film.
• The language used was consistent with expectations of the film as a fictional action comedy featuring police detectives, classified AO.
• The level of language built gradually starting part-way through the opening scene, rather than occurring immediately.
• The language used (variations of ‘fuck’, ‘shit’ and ‘bullshit’, for example) was not so frequent or explicit in the early stages of the film that it justified a later start time.⁷ Nor did it go beyond what could reasonably be expected in an AO programme broadcast free-to-air.
• The Authority has previously noted that ‘TVNZ DUKE is a free-to-air channel aimed at an adult male audience, positioning itself as “[t]he go to for guys who are looking for something awesome and maybe a bit unexpected.”’⁸

[14]  We acknowledge the complainant’s points that viewing and teenage behaviours have evolved, particularly with a shift towards less linear, real-time viewing, and a shift towards more online or on-demand viewing. We also agree with the complainant that the broadcasting standards must be applied to reflect our diverse society.

[15]  In these respects, we understood Ms McMurchy’s concerns to primarily relate to the standards themselves, rather than how they are applied in the broadcasting context. The broadcasting standards are subject to a regular review process every few years, which could take into account Ms McMurchy’s concerns about the scope and relevance of the standards and whether they remain fit for purpose, given our changing media environment and the different ways in which people now consume content.

[16]  Applying the current legislation and broadcasting standards, the Authority’s position remains that where broadcasters adequately equip audiences with information and tools to make informed viewing decisions, parents must share the responsibility for protecting younger viewers from unsuitable content, especially after 8.30pm which is when adults only viewing begins. Taking the above contextual factors into account, we were satisfied the broadcaster met its obligations under the Free-to-Air Television Code to take adequate steps to enable viewers to regulate their own and their children’s viewing.

[17]  The key factors in this case were the AO classification and timeslot, and the clear warning for frequent coarse language. We noted that, notwithstanding that people may ‘channel surf’, or that some children or teenagers may still be up after 8.30pm, on this occasion the complainant was able to exercise choice and control and informed us she made the decision to send her children out of the room. This demonstrates that the information and protections available to help parents and caregivers to exercise discretion remain important in the broadcasting context. The general audience was also less likely to be offended or distressed by the broadcast, since they received a clear indication of the programme’s likely content and had a reasonable opportunity to make a different viewing choice.

[18]  In these circumstances we do not consider this broadcast resulted in actual or potential harm that justifies limiting the right to freedom of expression. We therefore do not uphold the complaint under either Standard 1 or Standard 3.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings                                                              

Chair

29 June 2020

Appendix

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

1.      Lovina McMurchy’s formal complaint – 27 December 2019

2.      TVNZ’s decision on the complaint – 14 February 2020

3.      Ms McMurchy’s referral to the Authority – 16 February 2020

4.      TVNZ’s response to the referral – 1 May 2020

5.      Further information from TVNZ confirming the number of times the film has been broadcast on TVNZ channels – 27 May 2020

6.      Final comment from Ms McMurchy in response to further information – 5 June 2020

¹ The Free-to-Air Television Code of Broadcasting Practice was refreshed, taking effect from 1 May 2020, and includes changes to the classifications and timebands applied to free-to-air television programmes. This complaint has been determined under the April 2016 version of the Free-to-Air Television Code of Broadcasting Practice as the relevant broadcast pre-dated 1 May 2020.
² Samuel and Television New Zealand Ltd, Decision No. 2014-035 at [8]-[9]
³ Fourie and Television New Zealand Ltd, Decision No. 2012-002 at [23]-[24]
⁴ Guideline 1b
⁵ See Attorney General of Samoa v TVWorks Limited, CIV-2011-485-1110 at [62]
⁶ The broadcaster confirmed the film has been broadcast a total of eight times on TVNZ channels; seven times between 1988 and 1997, plus this broadcast in 2019. It noted that other free-to-air television channels may have had rights to screen the film in the intervening 22 years between 1997 and 2019.
⁷ This can be distinguished from, for example, Binks and 20 others and TVWorks Ltd, Decision No. 2010-141, where the Authority found the frequent coarse and obscene language used in the first 10 minutes of an episode of Outrageous Fortune, before 8.40pm, was unacceptable in the context and warranted a 9.30pm start time.
⁸ Dandy and Television New Zealand Ltd, Decision No. 2017-057 at [12]