BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Promo for Real Crime: Interview with a Serial Killer – contained part of an interview with a serial killer who stated that he had snapped a woman’s neck – allegedly in breach of children’s interests

Findings
Standard 9 (children’s interests) – promo contained adult themes which would have disturbed and alarmed child viewers – promo incorrectly classified G – broadcaster did not adequately consider the interests of child viewers – upheld

Order
Section 16(4) – payment of costs to the Crown $2,000

This headnote does not form part of the decision.

Broadcast

[1]   A promo for the programme Real Crime: Interview with a Serial Killer was broadcast at 5.25pm on Wednesday 16 September 2009. It was shown in the G (General) timeband, directly after a One News update and just prior to a G-rated programme, Australian MasterChef.

[2]   The promo began with footage of an interview with a serial killer who said:

We spent a day down at Turning Point Park feeding the ducks, making out, and then she just flipped, I, er, snapped her, snapped her neck.

[3]   A voiceover said “Step into the same room as a monster in sheep’s clothing”.

[4]   The serial killer went on to say that “people on the outside do not know what evil is”, and that he did not feel any remorse for his crimes.

Complaint

[5]   Jakki Newton made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the promo had breached Standard 9 (children’s interests).

[6]   The complainant stated that she and her daughter had sat down to watch Australian MasterChef, when a promo containing footage of a man “describing snapping a woman’s neck” was shown.

[7]   Ms Newton stated that the promo had disturbed her young child and argued that the broadcaster had not been sufficiently mindful of the effect the promo would have on child viewers.

Standards

[8]   TVNZ assessed the complaint under Standard 9 and guideline 9a of the Free-to-Air Television Code of Broadcasting Practice. They provide:

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters should consider the interests of child viewers.

Guideline 9a

Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material that would disturb or alarm them.

Broadcaster's Response to the Complainant

[9]   TVNZ argued that the man in the promo had actually stated “...then she just flipped, er, snapped, snapped her neck”. It contended that the promo did not contain footage of the man saying that he had snapped a woman’s neck. It said that, while the promo talked about how the man was a serial killer, it did not contain any violent images and was correctly rated G (General).

[10]   The broadcaster noted that the promo had been played after a One News update. It contended that Australian MasterChef was “not solely aimed at child viewers” and that it was reasonable to expect that the programme appealed more to an adult audience. It considered that the promo was acceptable for broadcast during G-rated programming aimed predominantly at adults and that it had adequately considered the interests of child viewers.

[11]   TVNZ declined to uphold the complaint that the promo breached Standard 9.

Referral to the Authority

[12]   Dissatisfied with TVNZ’s response, Ms Newton referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[13]   The complainant argued that, regardless of whether there was the pronoun “I” in the man’s sentence, the inference was that he had killed a woman by snapping her neck. She maintained that the promo had breached Standard 9.

Authority's Determination

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

[15]   Standard 9 (children’s interests) requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm.

[16]   We note that the promo was rated G by TVNZ. Appendix 1 of the Free-to-Air Television Code defines the G classification as follows:

Programmes which exclude material likely to be unsuitable for children. Programmes may not necessarily be designed for child viewers but should not contain material likely to alarm or distress them.

[17]   TVNZ argued that the man in the promo did not say that he had snapped a woman’s neck, but that he had actually stated “...then she just flipped, er, snapped, snapped her neck”. We disagree, finding that the man did say “I, er, snapped, snapped her neck”.

[18]   In our view, regardless of whether the pronoun “I” was used by the man, he was clearly talking about a woman whose neck had been snapped. Further, while the promo did not contain any footage of violent acts, we consider that the man’s reference to murdering a woman was equally powerful in its depiction of violence as any image could be.

[19]   As a result, we find that the promo was incorrectly classified G, because it contained violent adult themes which would have disturbed and alarmed child viewers. In these circumstances, we conclude that the broadcaster did not adequately consider the interests of child viewers by broadcasting the promo during children’s normally accepted viewing times.

[20]   Having reached this conclusion, we must now decide whether to uphold the complaint as a breach of Standard 9.

[21]   We acknowledge that upholding the children’s interests complaint would place a limit on the broadcaster’s right to freedom of expression. In Harrison and TVNZ,¹ the Authority determined that upholding a complaint under Standard 9 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 9 in the following terms:

In the Authority’s view, the purpose of the children’s interests standard is to protect children from broadcasts which might adversely affect them.

[22]   With that in mind, we must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 9 on this occasion. In our view, upholding a breach of the children’s interests standard would ensure that broadcasters take care to protect child viewers during their normally accepted viewing times from content that may disturb or alarm them. In this respect, upholding this part of the complaint clearly promotes the objective of Standard 9, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression.

[23]   Accordingly, we uphold the complaint that the promo breached Standard 9.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of a promo for Real Crime: Interview with a Serial Killer on 16 September 2009 breached Standard 9 of the Free-to-Air Television Code of Broadcasting Practice.

Submissions on Orders

[24]   Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

[25]   Ms Newton submitted that TVNZ should be ordered to broadcast a statement summarising the Authority’s decision. She stated that if the Authority was going to make an order of costs to the Crown against TVNZ, the money should be paid to a charity rather than to the Crown.

[26]   TVNZ stated that it had highlighted the Authority’s finding that the promo was violent due to its tone and language to “all relevant departments” and that it had reiterated the need for attention to be paid to ensure that promos comply with the classification of the host programme. The broadcaster said that the decision had “occasioned a review to improve the process” and that it had never intended to “disturb viewers”.

[27]   TVNZ submitted that the publication of the Authority’s decision was a sufficient penalty in the circumstances.

Authority’s Decision on Orders

[28]   We note that in 2008, three complaints were upheld against TVNZ in relation to the broadcast of promos which breached the programme classification and children’s interests standards.² We also note that in Oosterbroek and TVNZ – the third upheld complaint of the three – we ordered TVNZ to pay $2,000 costs to the Crown.

[29]   Costs to the Crown are generally imposed where there has been a serious departure from broadcasting standards. Taking into account all the circumstances of this case, we consider that such an award is appropriate on this occasion. Consistent with previous orders in similar circumstances, we conclude that TVNZ should pay costs to the Crown in the amount of $2,000.

[30]   We also note that any similar breach in the future will incur a heavier penalty.

[31]   With respect to Ms Newton’s submission that any costs award should be directed to a charity, we point out that the Broadcasting Act only allows us to order costs to be paid to the Crown.

[32]   We have considered the New Zealand Bill of Rights Act and the importance of the principle of freedom of expression. On this occasion we are satisfied that the making of these orders is consistent with the requirement in the Bill of Rights Act that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Order

Pursuant to section 16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $2,000, within one month of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
27 April 2010

Appendix

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

1.           Jakki Newton’s formal complaint – 17 September 2009
2.          TVNZ’s response to the formal complaint – 15 October 2009
3.          Ms Newton’s referral to the Authority – 17 October 2009
4.          TVNZ’s response to the Authority – 1 December 2009
5.          Ms Newton’s submissions on orders – 24 February 2010
6.          TVNZ’s submissions on orders – 19 March 2010

¹Decision No. 2008-066

²Smith and TVNZ (Decision No. 2008-018), Harrison and TVNZ (Decision No. 2008-066) and Oosterbroek and TVNZ (Decision No. 2008-102).