BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Celebrity Treasure Island – question posed to contestant concerning “famous lesbian” – complainant alleged use of word in this context was breach of good taste and decency, privacy, fairness and children’s interests

Findings
Declined to determine – section 11(a) Broadcasting Act 1989 – isolated use of word “lesbian” does not raise issue of broadcasting standards – complaint trivial

This headnote does not form part of the decision.

Broadcast

[1] Celebrity Treasure Island is a show in which New Zealand celebrities are “castaways” on a tropical island and vie for prizes for their nominated charities.

[2] In an episode screened on 8 August 2004 at 7:30 pm, one of the contests was a quiz based around a “fishy” theme. One of the questions, which presenter Louise Wallace asked to Simon Barnett, was:

In Finding Nemo, which famous lesbian was the voice of Nemo’s absent-minded friend Dory? [The answer being Ellen DeGeneres.]

Complaint

[3] Steven Mowat complained to Television New Zealand Ltd, the broadcaster, that the broadcast breached Standards 1 (good taste and decency), 3 (privacy), 6 (fairness – safeguard against discrimination) and 9 (children’s interests)

[4] His reasons were as follows:

• It is not in good taste to refer to a person’s sexual proclivity when discussing them in public unless the reference is made in a context where sex forms part of the subject matter;
• Sex is a private matter between consenting adults and referring to someone as a “famous lesbian” breaches their privacy, even if the individual referred to is not upset by the reference;
• The item was likely to be watched by young children innocent of any knowledge of sex, and the item unnecessarily opened the world of sexuality to these young children;
• Because Dory is often the subject of ridicule, the association with lesbians encourages discrimination against lesbians.

Standards

[5] As noted above, the complainant referred to the following standards in the Free-to-Air Television Code of Broadcasting Practice:

Standard 1 Good Taste and Decency

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guidelines

6g  Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:

1. factual, or
2. the expression of genuinely held opinion in news, current affairs or other factual programmes, or
3. in the legitimate context of a dramatic, humorous or satirical work.

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

Broadcaster's Response to the Complainant

[6] TVNZ did not uphold the complaint. It stated:

• There is nothing inherently “dirty” about the word “lesbian”, and thus Standard 1 was not breached;
• There was no breach of privacy as Ellen DeGeneres had “shout[ed] her lesbianism from the rooftops”;
• Ms DeGeneres’ lifestyle was not denigrated, and thus the fairness standard was not breached;
• The programme was rated PGR but in any event it did not agree that harm could be caused to a child by knowing that Ellen DeGeneres was a lesbian.

Referral to the Authority

[7] Mr Mowat was dissatisfied with TVNZ’s response and referred his complaint to the Authority, noting the following matters:

• He did not assert that “lesbian” was a “dirty” word but instead that Ms DeGeneres’ sexual habits have nothing to do with Celebrity Treasure Island. The reference was a “completely gratuitous reference to a person’s sexual proclivity, and as such it was in very bad taste”;
• It was his privacy that was invaded, not that of Ms DeGeneres, as the question breached the “public right to keep sex as a private matter between consenting adults”;
• The reference to “lesbian” when children might be watching was “a glaringly obvious point of major concern”, as children pick up on new words very quickly and might ask what a “lesbian” is;
• Associating lesbians with such a ridiculous character in the minds of children teaches them to make fun of lesbians.

Broadcaster’s Response to the Authority

[8] In response to the referral, TVNZ noted:

• The item was not a serious quiz, and questions were designed to give the competitors clues about the answers;
• Either children would not know what a lesbian was and thus the question would go over their heads, or they would; in neither case would harm be done through use of the word;
• Privacy principles do not apply to persons not referred to in a programme.

Complainant’s Final Comment

[9] In his final comment Mr Mowat stated that his criticism of the programme did not denigrate “lesbians or heterosexuals or anybody else for their sexual preferences”. He instead noted that it was intended to ensure that “standards for protecting the community at large are maintained; in this instance, that children (and adults) should not be subjected to gratuitous, unexpected and explicit reference to things of a sexual nature.”

[10] In relation to the points made by TVNZ in its response to the referral of his complaint, Mr Mowat replied as follows:

• The technical structure of the quiz was irrelevant, as was whether or not it was intended to be “serious”;
• The question posed by the presenter was a simple one and would not go over the head of young children;
• He did not agree that the privacy protections should apply only to those people referred to in a programme.

[11] In summary, Mr Mowat noted:

• The term “famous lesbian” was used out of context, and people should not be commonly referred to with sexual tags;
• The programme was screened at a time when it would be expected that young children would be watching, yet it made an “explicitly sexual reference”;
• Such use of the term “famous lesbian” is likely to associate lesbians with dumb characters in the minds of children.

Authority's Determination

[12] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[13] The Authority considers that an isolated use of the word “lesbian”, in a PGR-rated programme, does not raise any issue of broadcasting standards. This is especially so where the person referred to is famous not only as a comedienne and actress, but also as one of the first popular entertainers to publicly – and repetitively – proclaim her lesbianism.

[14] Under section 11 of the Broadcasting Act 1989, the Authority has a discretion to decline to determine a complaint referred to it. There are two grounds on which the Authority may so decline:

1. if the complaint is frivolous, vexatious or trivial; or
2. if, in all the circumstances of the complaint the Authority considers it should not be determined.

[15] As noted above, the use of the word complained of does not raise any issue of broadcasting standards and thus, in the view of the Authority, the complaint is trivial within the meaning of section 11(a). While it is apparent that Mr Mowat holds genuine concerns surrounding the use of the word “lesbian” in this context, there is nothing in the Free-to-Air Television Code of Broadcasting Practice to support his concerns. The Authority accordingly declines to determine the complaint.

[16] For the avoidance of doubt, the Authority rejects Mr Mowat’s assertion that his privacy could have been breached because he was told something that he did not want to hear. Privacy principles concern the public disclosure of private facts relating to identified individuals; the right to privacy belongs to the persons referred to, not the listeners.

For the above reasons the Authority declines to determine the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
15 October 2004

Appendix

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

1. Steven Mowat’s complaint to TVNZ – 9 August 2004
2. TVNZ’s response to the complaint – 24 August 2004
3. Mr Mowat’s referral to the Authority – 5 September 2004
4. TVNZ’s response to the referral – 20 September 2004
5. Mr Mowat’s final comment – 30 September 2004