BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

Warning — This decision contains references to suicide and sexual violence.

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

The Authority upheld a complaint the broadcast of the crime-drama Believe Me: The Abduction of Lisa McVey, classified ‘M’, on Bravo at 7.30pm breached the children’s interests standard. The Authority found the movie was inappropriately classified, precluding viewers from making informed choices for their, and their children’s, viewing. The movie dealt with strong adult themes, including sexual violence, and contained distressing scenes outside the ‘M’ classification. The Authority acknowledged the broadcaster’s steps in informing viewer choice, but found the movie should have been classified as ‘16’, requiring a later broadcast time of 8.30pm.

Upheld: Children’s Interests

No Order

The broadcast

[1]  The movie Believe Me: The Abduction of Lisa McVey was broadcast at 7.30pm on Bravo on 2 March 2022. The movie is a crime-drama based on the true story of Lisa McVey, a 17-year-old girl who was abducted and raped¹ by serial killer Bobby Joe Long in 1984.

[2]  The movie opened in a diner scene with the protagonist of the film, who left to head home shortly afterwards. At this point, there were transitions to memory scenes of a man (who is later revealed to be her grandmother’s boyfriend, who lives with McVey) entering the room McVey is sleeping in, unbelting his jeans, and saying ‘good girl’. The camera moves to the shadows and the memory scene ends. This occurs within the first two minutes of the movie.

[3]  For the next six minutes, the movie sets the scene, establishing McVey’s home-life and apparent intention to die from suicide (showing her writing a note expressing feelings of being ‘tired’ of a situation that’s ‘never going to end’ and of being ‘trapped’ and ‘hopeless’).

[4]  Subsequently she is shown biking home late at night from her job when she is trailed by a car which then drives ahead and parks. When she passes the area where it is parked she is grabbed (by Long), a gun put to her head and forced into the car, being told ‘shut up’ and ‘You look at me and you’re dead. Now show me a good time or I’ll kill you.’ This occurs at approximately 8.30 minutes into the movie. At this point, Long commands McVey to look a certain direction while they are both in his car. McVey is seen distressed, apparently being raped, although the camera is only focused on their faces.

[5]  At approximately 11.30 minutes, Long takes McVey to his house (blindfolded). Over the next 37 minutes, the movie shows McVey’s experience throughout the abduction, including the following scenes (in the majority of which, McVey is seen blindfolded and/or with her hands tied):

• Long tells McVey to take her clothes off ‘nice and slow’ and says ‘let me look at you’.
• Long showers McVey. The footage shows both characters faces, Long’s naked upper body behind McVey (shown naked above the waist from the back). While he showers her he is seen to hold her by her hair and with her face up against the shower wall.
• Long lying with McVey, running his gun along McVey’s leg and body before poking the barrel into her cheek ‘just so you won’t forget’, then putting his fingers in McVey’s mouth. Long is then seen strengthening his grip on McVey’s face while (presumably) forcing himself on McVey. The camera remains focused on their faces throughout this scene and both characters appear clothed.
• Long in bed with McVey, in what appears to be boxers and a singlet, holding her arm while she asks to go the bathroom.
• Several scenes where Long threatens McVey, including threats to kill her, and physically abuses her, including by putting a gun to her head.
• A scene where Long is shirtless, lying on top of McVey and kissing her for a brief amount of time.

[6]  The music and lighting throughout these scenes generally reflect a gloomy atmosphere.

[7]  Amongst the above scenes, further scenes from McVey’s past are shown, including one of her grandmother saying ‘sometimes there are things you have to do to keep on living in such a nice home — it’s alright honey, you’re going to learn how to treat a man’ as her grandmother’s boyfriend looks on.

[8]  Ultimately, Long is shown to release McVey, having found her ‘different from the others’ and ‘special’. After people initially disbelieved her story, McVey’s detailed recall of events and steps taken to leave evidence behind are shown to be what ultimately leads to the capture of serial killer Long. McVey is described as a hero and is shown moving to live with her Aunt and Uncle ‘finally getting the love and support she always craved’. The movie also ends with the note that she became a ‘Sheriff’s deputy specializing in sex crimes and working to protect children’.

The complaint

[9]  Andrea Morgan complained the broadcast breached the children’s interests standard of the Free-to-Air Television Code of Broadcasting Practice as the movie (rated M-VS) should not have been aired at 7.30pm:

• There are repeated scenes of a terrified child being abducted, beaten and sexually violated, interspersed with scenes of her being prepared for sexual grooming.
• This movie ‘was aired at 7:30pm during normal family viewing times, and at a time when young teens would also be channel surfing.’

[10]  In response to Discovery NZ Ltd (Discovery) referring to the context of the broadcast, the complainant noted:

• ‘I stumbled on the film while channel-surfing and did not see/hear any [warning at the start of the movie]. Children would not have seen or heard the warning if they also came across the programme by accident mid- broadcast. In addition, the warning used by Bravo was obscure - it should have said “This programme contains scenes of sexual violence that young viewers will find disturbing or upsetting and therefore should not be watched by children under the age of 16”. Irrespective of this, a warning at 7:30pm is also not enough to prevent people from seeing disturbing content onscreen if (i) they don’t see the warning because they missed the start of the broadcast; and (ii) they don’t understand the warning, which a child is unlikely to have done.’
• The warnings after each commercial break ‘would only have been seen by viewers if they only tuned into Bravo at the end of a commercial break rather than during the course of the programme, and are therefore not adequate to prevent minors from seeing content that would be deeply distressing to them, during a time when they would not expect to be seeing it (7:30pm-8:30pm).’
• The complainant did not agree the violent or sexual content occurred ‘later in the film’: ‘I stumbled on the programme prior to 8pm and what I saw depicted onscreen in the 5 seconds that I landed on Bravo, was a terrified child who was bound and gagged on a bed being sexually groped and leered at by an adult male much larger and stronger than her. Seeing that was enough to make me feel sick and prompted my quick and conscious decision to continue clicking through channels. When I realised what the time was – ie, not yet 8pm and the sun was still up, as would be many children – I was angered at the lack of social responsibility being demonstrated by a broadcaster and decided to make a complaint. Unfortunately in order to make the complaint I had to click back and find the programme again, so I could determine the name of the programme and the channel it was being broadcast on – and ended up witnessing further disturbing scenes in two equally short periods of time.’

[11]  As part of their referral to the Authority, the complainant also argued the M classification was inappropriate as:

• ‘The movie contained repeated scenes of violence, sexual material, and subjugation of a minor. There was no “might” about it.’
• ‘I feel confident in stating that all, not “some”, children would have found the content disturbing and “challenging”. As would all responsible parents.’
• ‘The impact of the movie was beyond “moderate”… I... accept violence in drama when it is in context with the storyline, yet I found just the 3 small snippets of this movie I saw, very disturbing – disturbing enough to make me want to lay a complaint.’
• ‘I believe that a classification of “16” (or even “18”) would have been more appropriate for this movie.’

The broadcaster’s response

[12]  Discovery did not uphold the complaint as ‘the M classification, full screen warning, audience advisories and censor cuts were sufficient’ and provided parents sufficient information to make an appropriate viewing decision on behalf of their children. Discovery highlighted the following relevant factors:

• ‘The film was classified M (Mature Audiences).’
• ‘M programmes may be screened between 9am to 3pm on weekdays (except during school and public holidays, as designated by the Ministry of Education) and after 7.30pm until 5am’.
• ‘A full screen visual and verbal warning… was broadcast before the start of the film’.
• ‘The M classification and audience advisories VS were also shown on screen after each commercial break’.
• ‘The film was appraised prior to broadcast and’ ‘the Appraiser made censor cuts in the first part of the movie to remove strong violence and graphic depictions of rape in consideration of the 7.30 pm timeslot.  These elements were an important part of the true story being told, so the Appraiser ensured the audience still had the necessary information to understand the narrative without featuring graphic violence that exceeded the timeslot.’ ‘Although the warning advised of “scenes of sexual violence” all graphic depictions of rape were removed from the Broadcast. Any other depictions of violence or sexual violence were discussed or implied and occurred later in the film, well after the tone was set for viewers to make an informed viewing decision’.
• It also referred the Authority to ‘the various classifications (according to IMDb) this title has received in other territories without the censor cuts Discovery made:’ Argentina – 13; Australia – MA15+; United Kingdom – 15; United States –TV-14’.
• ‘Bravo is a television channel focused on offering television programmes targeted at an adult audience. Believe Me: The Abduction of Lisa McVey was targeted at an adult audience and was unlikely to appeal to most child viewers, who are more likely to choose to watch programmes directed at them screening on other channels’.
• ‘In various decisions, the Authority has previously recognised 'broadcasters are unable to protect against some viewer behaviour, such as channel-surfing' and then found that broadcasters “have a duty to accurately alert viewers to potential harmful content”.’²
• ‘We maintain that in this instance, we did accurately alert viewers to the potentially harmful content and further note that had parental locks been in place, the situation could have been avoided.’

The standard

[13]  The children’s interests standard states broadcasters should ensure children can be protected from broadcasts which might adversely affect them.³ The purpose of the standard is to enable audiences to protect children from material that unduly disturbs them, is harmful or is likely to impair their development.⁴ Its focus is on harm that may be unique to children (as opposed to the audience generally, which is addressed under the good taste and decency standard).⁵

[14]  For the purposes of this complaint, material likely to be considered under this standard includes violent content or themes, social or domestic friction, dangerous, antisocial or illegal behaviour and sexual material or themes where such material is outside audience expectations of the station or programme.⁶

Our analysis

[15]  We have watched the broadcast and read the correspondence listed in the Appendix.

[16]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.⁷

[17]  We note the movie recounts the true story of Lisa Noland (née McVey), and Noland herself features at the end of the movie. There is a public interest in telling these types of stories which serve a public good, as Noland herself has stated, in empowering others to overcome their circumstances.⁸

[18]  However, we acknowledge the content was challenging viewing, containing distressing and disturbing content, and the broadcast did not provide viewers with sufficient information to enable them to make informed viewing choices for themselves or for children in their care. Therefore, we consider the level of potential harm caused by the broadcast warrants regulatory intervention and limiting the right to freedom of expression, with respect to the classification (and therefore scheduling) in this instance. We expand on our reasons below.

[19]  Context is an important consideration when assessing complaints under this standard. The relevant contextual factors we have considered in this case include:⁹

• Bravo is a television channel with programmes targeted at an adult audience.¹⁰
• The movie was:
  • Classified M, with audience advisories V and S. This classification signals it was suitable for mature audiences 16 years and over and contained violence and sexual content that may offend viewers.¹⁰
  • Advertised in the print TV Guide as follows: Drama. A 17-year old girl uses reverse psychology to get her kidnapper to set her free. When she returns home, the only person who believes her is a veteran detective. M-VS. (The guide also included a review of the movie.)
  • (We also note the movie, without Discovery’s cuts, was classified in the manner described by Discovery at paragraph [12], and as ‘16’ on Netflix. The Classifications Office | Te Mana Whakaatu has not provided a rating for the movie.)
• The movie was screened at 7.30pm. This is within both the appropriate screening times for programmes classified ‘M’ and children’s normally accepted viewing times (until 8.30pm).¹² (The Codebook recommends broadcasters carefully consider children’s interests in these situations).¹³
• The movie screened after an episode of Bar Rescue, a G-rated programme targeted at adult audiences.
• The M-VS labels were displayed at the beginning of the movie along with the written and verbal description ‘This programme contains scenes of sexual violence that some viewers may find disturbing or upsetting’, and the labels were also displayed after each ad break.
• There was a clear power imbalance between Long and McVey.
• The overall tone and themes of the programme were clearly adult in nature and required a mature outlook.
• No graphic sexual footage was displayed throughout the movie. Footage displayed showed the characters’ upper body (for Long) and upper back (for McVey). Scenes referring to rape had the acts implied with camera work (such as focusing on the characters faces), distressing vocals, and ominous music.
• Scenes depicting Long’s treatment of McVey were not particularly graphic (physically), did not include bloodshed, and were each of a short duration. However, the abduction, and associated scenes between Long and McVey, was a prominent part of the movie, constituting the majority of the first half of the movie.

[20]  We note the complainant initially viewed the movie while channel-surfing. There is little broadcasters can do (subject to our next point) to protect against this type of viewer behaviour.¹⁴ As we have previously found, viewers have a responsibility to ensure children in their care are adequately supervised,¹⁵ particularly at 7.30pm where parental guidance is recommended. This is important as our recent research into Children’s Media Use found the highest indicator for a child to decide if a programme was not for them was what a parent or caregiver said (with 71% of children relying on that guidance).¹⁶

[21]  The timebands restrictions therefore protect against this risk. Knowing the timebands, and what type of content is able to be screened in each, enables parents and guardians to exercise supervision at appropriate times.¹⁷ These are valuable tools children,¹⁸ and supervising parents and caregivers,¹⁹ use to inform their viewing choices.²⁰

[22]  Therefore, we acknowledge it is not possible or practicable for broadcasters to shield children from all potentially unsuitable content. The responsibility for safe viewing is shared by broadcasters and parents/caregivers.²¹ The above context highlights some of the steps Discovery took to enable adults to protect child viewers in their care.²² These include the use of audience advisories and broadcasting the movie on a channel, and following a programme, which would not ordinarily appeal to child viewers.

[23]  However, timeband restrictions rely on correct classification of the broadcast. A key issue for the Authority was therefore whether the movie itself was appropriately classified. An incorrect (lower) classification would mean viewers did not have reliable information, and the programme should not have been played during children’s normally accepted viewing times.

[24]  The ‘M’ and ’16’ classifications are defined as follows:²³

M – Mature Audiences: Suitable for Mature Audiences 16 years and over.

The M classification means the programme might contain violence, sexual material, offensive language, adult themes, nudity, or other content that some children and parents find challenging. The programme may contain content with a moderate impact and themes that require a mature outlook.

On free-to-air television, M programmes may be screened between 9am and 3pm on weekdays (except during school and public holidays, as designated by the Ministry of Education) and after 7.30pm until 5am.

16 – People under 16 years should not view.

Programmes classified 16 contain stronger material or special elements which are outside the M classification. These programmes may contain a greater degree of sexual material, offensive language, realistic violence, and stronger adult themes.

On free-to-air television, 16 programmes may be screened after 8.30pm until 5am.

[25]  Viewers would have anticipated some violence and sexual material from the rating and ‘VS’ advisories, and the onscreen warning prepared them for the psychological elements to an extent. We note the warnings did not refer to suicide (either directly or with a ‘C’ advisory). However, references to suicide (including the writing of an apparent suicide letter and the suggestion from McVey’s boss that she had seemed ‘sad’ and may have ‘harmed herself’) were not a particular focus of the film. In any event, we refer Discovery to guideline 2(k), which suggests broadcasters consider including helpline information where a programme focuses on issues such as rape and suicide. We consider this would be appropriate as the credits begin to roll.

[26]  In light of the contextual factors above, we consider the content exceeded audience expectations of its ‘M’ classification. The content would have been distressing to viewers, particularly due to the sexual violence, the power imbalance between captor and captive and the frequency of such scenes. We accept Discovery’s submission that stronger elements of the movie (such as ‘graphic depictions’ of rape) were cut from the film to reduce the impact on an audience. However, the cuts were insufficient to address the powerful psychological impact of the content that remained. The ‘unseen monster’ conjured by the audience’s imagination in this case evokes just as much, if not more, of a response than the ‘seen monster’.²⁴

[27]  Further, the scenes as broadcast contained distressing themes and content, including (but in no way limited to): the abduction; Long forcing himself on McVey and Long lying on top of McVey; McVey gagged, blindfolded, with her hands tied and her clothes off; McVey crying and begging for her life; Long stating ‘do you want me to kill you right here?’. Some of these scenes featured as early as 8 minutes into the movie. The sound effects, music, and other auditory cues reinforced the disturbing tone of the movie. Altogether, a level of immersion was created reflecting a sense of realistic violence and distress, pushing the broadcast into the ‘16’ classification.

[28]  As we have found the broadcast was incorrectly classified, we consider viewers did not have accurate information to inform their, and their children’s, viewing choices and protect children from material that unduly disturbs them. Further, the stronger classification means the programme should have screened after 8.30pm, after children’s normally accepted viewing times.

[29]  We are conscious of the public interest in the movie, given its ultimately positive message as described at paragraph [17]. In making our findings, we are not saying the movie should not have been broadcast at all. Rather, this decision highlights the importance of the need for caution and care to be taken when classifying, and scheduling, programmes, particularly with programmes broadcast at the turn of watershed hours.

[30]  We therefore consider upholding the complaint under the children’s interests standard, and requiring a stronger classification (and a later scheduling) for the broadcast, would place a reasonable and justified limit on the broadcaster’s freedom of expression.²⁵

For the above reasons the Authority upholds the complaint that the broadcast of Believe Me: The Abduction of Lisa McVey on 2 March 2022 breached standard 3 (children’s interests) of the Free-To-Air Television Code of Broadcasting Practice.

[31]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We have concluded no order is warranted in this case. This is on the basis that publication of our decision is sufficient to publicly notify the breach of the children’s interests standard, censure the broadcaster and emphasise the importance to Discovery and other broadcasters of appropriate classification of programmes for audiences to make informed viewing choices.

Signed for and on behalf of the Authority

Susie Staley
Chair
30 May 2022    

Appendix

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

1  Andrea Morgan’s formal complaint – 2 March 2022

2  Discovery’s decision on complaint – 7 March 2022

3  Morgan’s referral to the Authority – 27 March 2022

4  Discovery’s response to referral – 22 April 2022

5  Morgan’s final comments – 28 April 2022

6  Discovery’s further comments on classification, confirmation of no response to final comments – 28 April 2022

¹ We use the term ‘rape’ throughout this decision as this reflects Lisa McVey’s recount of her experience. For support, see “Safe to Talk | Kōrero mai ka ora” <safetotalk.co.nz>
² Referring to Evans and Mediaworks TV Ltd, Decision No. 2018-092 at [34]
³ Standard 3, Free-To-Air Television Code of Broadcasting Practice
⁴ Commentary: Children’s Interests, Broadcasting Standards in New Zealand Codebook, page 13
⁵ As above, page 14
⁶ Guideline 3a
⁷ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁸ Ian Sandwell “Netflix's Believe Me true story explained: Where is Lisa McVey now?” (8 June 2021) Digital Spy <digitalspy.com>: Noland said ‘she hoped Believe Me would empower victims to overcome their circumstances: "It's to show people how to embrace life after horrific things happen to you. Maybe physical things, maybe mental or emotional, I want to be an inspiration to others."’
⁹ Guideline 3c
¹⁰ Poll and Discovery NZ Ltd, Decision No. 2020-175 at [8]; Gibson and Discovery NZ Ltd, Decision No. 2021-096 at [11]
¹¹ Definitions, Broadcasting Standards in New Zealand Codebook, page 9
¹² Definitions, Broadcasting Standards in New Zealand Codebook, page 9
¹³ Commentary: Children’s Interests, Broadcasting Standards in New Zealand Codebook, page 14
¹⁴ Evans and Mediaworks TV Ltd, Decision No. 2018-092 at [34]
¹⁵ Evans and Mediaworks TV Ltd, Decision No. 2018-092 at [33]; and Sta. Lucia and Mediaworks TV Ltd, Decision No. 2019-048 at [34]
¹⁶ Broadcasting Standards Authority and NZ On Air | Irirangi Te Motu Children’s Media Use (June 2020) at page 87
¹⁷ Smith and Television New Zealand Ltd, Decision No. 2020-145 at [16]
¹⁸ Our 2020 research into Children’s Media Use found 51% of children (aged 6-14) used on-screen classifications, and 47% used on-screen warnings to understand when a television programme was not for them: Broadcasting Standards Authority and NZ On Air | Irirangi Te Motu Children’s Media Use (June 2020) at page 87
¹⁹ Our Parental Guidance Survey found cautionary warnings and programme classifications were the most well-known and widely used methods for selecting appropriate content: Television New Zealand Ltd and Broadcasting Standards Authority Parental Guidance Survey (September 2017) at page 3
²⁰ Choice and Control, Broadcasting Standards in New Zealand Codebook, page 7
²¹ Choice and Control, Broadcasting Standards in New Zealand Codebook, page 7
²² Commentary: Children’s Interests, Broadcasting Standards in New Zealand Codebook, page 14
²³ Definitions, Broadcasting Standards in New Zealand Codebook, page 9
²⁴ See Michelle Park “The Aesthetics and Psychology Behind Horror Films” (2018) Undergraduate Honors College Theses 2016– 31 at 50
²⁵ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6