Ngapo & Tolungamaka and Television New Zealand Ltd - 2018-099 (13 March 2019)
- Judge Bill Hastings (Chair)
- Paula Rose
- Wendy Palmer
- Susie Staley
- Keinan Ngapo & Paul Tolungamaka
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority has not upheld two complaints about episodes of Shortland Street, which followed the ongoing storyline of a threesome between a married couple and their nanny. The Authority acknowledged that some viewers might find this storyline distasteful and that some scenes and references might have raised questions for children. However, the Authority found that various contextual factors, including audience expectations of the long-running television drama and a warning for sexual material, prepared audiences for the likely content and minimised the potential for undue harm. The sexual material and references contained in these episodes were relatively inexplicit, with no nudity or sexual activity beyond kissing shown. Finally, the fictional sexual activity took place between consenting adults and no illegal or seriously antisocial activity was portrayed during the programme. The Authority therefore found no grounds to justify restricting the broadcaster’s right to freedom of expression.
Not Upheld: Good Taste and Decency, Law and Order
 Three episodes of Shortland Street, broadcast on 28, 29 and 30 October 2018 on TVNZ 2 at 7pm, followed the ongoing storyline of a threesome between married couple, Drew and Harper, and their nanny, Dani. The episodes contained shots of the characters sitting in bed together, kissing passionately while fully clothed, and sexual references.
 These episodes were classified PGR – Parental Guidance Recommended and the 28 October episode carried a warning for sexual material.
 PGR programmes may be screened between 9am and 4pm and after 7pm until 6am. The PGR classification is defined as follows:
Programmes containing material more suited for mature audiences but not necessarily unsuitable for child viewers when subject to the guidance of a parent or adult.
 Keinan Ngapo complained that the 28 October 2018 episode of Shortland Street was in breach of the good taste and decency standard of the Free-to-Air Television Code of Broadcasting Practice, because:
- The programme should have been classified AO – Adults Only and was inappropriate for broadcast at 7pm when children could be watching.
- The sexual content of these episodes ‘went too far’ and was offensive because the content went against the ‘sanctity of marriage, morals [and] values…’
 Paul Tolungamaka complained that the 29 and 30 October 2018 episodes were in breach of the good taste and decency and law and order standards, for the following reasons:
- The scenes were sexual in nature, were not appropriate for families or young children to watch and should have been broadcast during a later timeslot.
- These episodes encouraged illegal activity (cheating and a threesome outside of marriage), which had an impact on broken families.
- Shortland Street’s long running time did not necessarily mean that the content was morally acceptable.
The broadcaster’s response
 The broadcaster, TVNZ, responded:
- The 28 October episode was preceded by a warning advising that the sexual material required the guidance of a parent or adult for child viewers.
- Shortland Street is targeted towards a ‘relatively sophisticated young adult audience’,1 and has previously shown the romantic entanglements of many characters. The production company acknowledged that the situation could raise ‘some challenging questions for parents’, however this was true of many Shortland Street stories which pushed the boundaries of ‘relationship norms’.
- No inappropriate sexual interaction or nudity was shown. The language used and the way the discussion was framed was acceptable for the programme’s PGR classification.
- Drew, Harper and Dani’s ‘threesome’ did not constitute an illegal activity, and this storyline did not glamorise crime or condone the actions of criminals.
The standards and relevant guidelines
 The purpose of the good taste and decency standard (Standard 1) is to protect audience members from viewing broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards.2 Broadcasters should take effective steps to inform audiences of the nature of the programme, and enable viewers to regulate their own and children’s viewing behaviour.3
 The law and order standard (Standard 5) states that broadcasters should observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast.
 Guideline 5a to the standard states that programmes should not actively promote serious antisocial or illegal behavior, including violence, suicide, serious crime and the abuse of drugs.
 When we determine a complaint alleging a breach of broadcasting standards, we first give consideration to the right to freedom of expression. We also consider what harm may arise from the broadcast. We weigh the value of the programme, and the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast. In particular, we have regard to the genre and context of the content aired.
 The relevant contextual factors in this case include:
- these episodes of Shortland Street were classified PGR and screened at 7pm, during children’s normally accepted viewing times (up until 8.30pm)
- while Shortland Street is targeted at adult and teen viewers, the likely audience may have included children
- the inclusion of a written warning for sexual material at the beginning of the programme
- the nature of the programme as a long-running, well-established local medical drama series
- audience expectations of Shortland Street.
 Taking into account all of the relevant contextual factors, we do not consider these episodes of Shortland Street threatened current norms of good taste and decency, to the extent required to breach broadcasting standards.
 The Authority’s expectation is that, during children’s normally accepted viewing times, sexual content or references should be subtle and inexplicit, or in the nature of sexual innuendo that would be likely to go over the heads of child viewers.4 We also expect viewers, particularly parents and caregivers, to be given sufficient information to enable them to make their own choices as to what they and children in their care should continue watching.
 We acknowledge that some viewers may have found this storyline to be distasteful, and that some of the scenes and references may have raised questions for children, particularly the opening scenes of the 28 October episode (when Dani asks, ‘Can I sleep with you tonight? Both of you?’ along with shots of the three characters in bed together). The ongoing storyline also featured the characters’ discussion of the threesome and how it might impact on Drew and Harper’s relationship. We all agreed that this content required parental guidance for any child viewers and the 28 October episode required a warning for sexual material. We note that viewers were alerted to this through the PGR classification and audience advisory applied by the broadcaster.
 In our view, while we accept that parental guidance was required, the sexual references were relatively inexplicit, in that they did not describe the sexual activity and were not graphic, coarse or instructive.
 While the characters were shown at various times kissing passionately, any further sexual activity was implied, rather than explicit. No nudity was shown, as characters were shown kissing either fully clothed or covered by sheets. This level of sexual content is within audience expectations for Shortland Street, a long-running television drama which is targeted at adult viewers and often follows the relationships, including sexual relationships, of the characters.
 We also consider that the sexual relationship between the three characters was discussed in a way that child viewers were unlikely to have understood.
 Taking these contextual factors into account, we are satisfied that the low-level sexual content was not inappropriate for this PGR-classified programme, particularly given the 28 October episode carried a warning for sexual material. We therefore do not consider a higher classification of AO was warranted in this case and we do not uphold the complaint under the good taste and decency standard.
 Finally, while viewers might have disagreed with the relationship from a moral standpoint, no illegal or seriously antisocial activity was portrayed during the programme. Context is also an important consideration when determining complaints under the law and order standard and a distinction will usually be drawn between factual, and fictional or dramatic, depictions.5 These episodes of Shortland Street depicted fictional sexual activity between consenting adults and any concerns about the relationship were discussed and addressed by the characters. For these reasons, we also do not uphold the complaint under the law and order standard.
 We have therefore not identified any grounds which would justify restricting the broadcaster’s right to freedom of expression in this case.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
13 March 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Paul Tolungamaka’s formal complaint – 28 October 2018
2 Keinan Ngapo’s formal complaint – 31 October 2018
3 TVNZ’s response to Mr Tolungamaka’s complaint – 23 November 2018
4 Mr Tolungamaka’s referral to the Authority – 26 November 2018
5 TVNZ’s response to Mr Ngapo’s complaint – 27 November 2018
6 Mr Ngapo’s referral to the Authority – 27 November 2018
7 TVNZ’s further comments – 14 December 2018
8 Mr Ngapo’s further comments – 15 January 2019
1 Citing McBride and Television New Zealand Ltd, Decision No. 1996-029
2 Commentary – Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
3 Guideline 1b
4 Cross and Television New Zealand Ltd, Decision No. 2008-059; Burton and Television New Zealand Ltd, Decision No. 2012-041 and Kittel and Television New Zealand Ltd, Decision No. 2017-024
5 Guideline 5b