BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

The film Heat was broadcast on TV2 at 8.30pm on 3 January 1999.

Mr Nicholls complained to Television New Zealand Limited, the broadcaster, about the standard of language used in the film. He objected to the excessive use of "fuck", "fucking", and associated words, he wrote, because it led to their normalisation. He argued that the offending words could have been beeped out. The film was shown in holiday time, he said, and swear words should not be accepted on prime family time television.

TVNZ responded that the film started at 8.30pm which was adult programming time, it was clearly rated AO, indicating that it was unsuitable for children, and it was preceded by a specific warning about its violence and language. It said the warning was delivered visually and verbally. It was a film of quality, TVNZ stressed, and "beeping" the language might have both detracted from the story, and drawn attention to the language used. It declined to uphold any aspect of the complaint.

Dissatisfied with TVNZ’s decision, Mr Nicholls referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint.

Decision

The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. In this instance, the Authority determines the complaint without a formal hearing.

The film Heat was shown on TV2 on 3 January 1999, commencing at 8.30pm.

Mr Nicholls complained to the broadcaster that the programme featured the words "fuck", "fucking", and associated words. He objected, "to the excessive use of the word and its consequent normalisation". In this case, he said, the words added nothing to the storyline and could have been "beeped" out.

Mr Nicholls said that he had young children, and at the time the film started they were not yet in bed as it was school holidays. The film was violent, he wrote, and while his family might swear occasionally, that did not mean they had to accept swearing on prime family time television.

TVNZ considered the complaint in the context of standards G2 and G12 of the Television Code of Broadcasting Practice. The standards require broadcasters:

G2  To take into consideration currently accepted norms of decency and taste in language and behaviour, bearing in mind the context in which any language or behaviour occurs.

G12  To be mindful of the effect any programme may have on children during their normally accepted viewing times.

Initially, TVNZ argued, there were a number of contextual factors that needed to be taken into account. First, the programme started at 8.30pm which was not "family time" television, but a point well established as the watershed between family entertainment and adult programming. In addition, TVNZ pointed out, the film was a very long one, and it would have been unreasonable to expect its audience to wait later than 8.30pm for it to begin.

Secondly, the broadcaster said, the film was clearly rated AO (Adults Only). It contended that by attaching such a certificate to the film, it was advising its viewers that in its opinion the film was unsuitable for children. The AO symbol, it added, appeared at the beginning of the film and also after each commercial break. The film was unsuitable for viewers under the age of 18 years, and AO was the proper rating, it wrote.

Thirdly, TVNZ advised, the film was preceded by a very specific warning which emphasised that the film contained strong violence, and language that might offend some people. It noted the warning was delivered both in the form of an on-screen caption and verbally.

Fourthly, said the broadcaster, television audiences were entitled to see films of quality in the form their directors and producers intended. This particular film, it said, was a film of quality which emphasised "the bleakness of life, the intellectual vacuum and lack of soul to be found in urban Los Angeles". The film had been widely acclaimed as a cinema release and TVNZ had been "pleased to present it to a New Zealand television audience in the form the director intended".

Had the language been removed, TVNZ maintained, "a significant element in generating the bleak atmosphere … might have been lost". It added that its experience of "beeping" was that the technique only drew attention to the language. In this film "beeping" would have detracted from a story in which it was important that "the gutter language be presented as an unexceptional part".

TVNZ continued that the language in the film was not gratuitous, or relentless, but germane to the theme of this particular creative work.

In the context of the film carrying an AO certificate, being preceded by a specific warning, and containing the language that contributed to the overall theme, TVNZ declined to uphold a breach of standard G2.

The broadcaster also declined to find a breach of standard G12, submitting that the AO certification made it clear the film was not suitable for younger viewers, and that – together with the warning – resulted in it complying with the standard.

In referring his complaint to the Authority, Mr Nicholls said that his main reason for complaining was the film’s excessive use of the word "fuck" and its derivatives. He stressed that he had children who were within earshot of the television, even if they were not watching the film. In response to TVNZ’s points, Mr Nicholls wrote:

"I do not want fuck etc in my living room at all."

"The programme was in the middle of the Christmas holidays. Children go to bed later at this time of the year."

"It was not unreasonable to schedule the programme later. It was holiday time and adults go to bed later as well. … [Most] people have the opportunity to video a programme if the hours of showing don’t suit… ."

"It is convenient claptrap that a ‘beep’ would detract from the story. In their letter of reply TVNZ also stated a ‘beep’ would draw attention to the language. I agree! And in doing so it would say it is not acceptable to talk like that in normal society… ."

When invited to respond, TVNZ indicated that it had "nothing to add" to its earlier letter to Mr Nicholls.

The Authority’s Findings

In dealing with the specific concerns expressed by Mr Nichols in his complaint, the Authority believes that it is appropriate to address both watershed and classification issues as the context for its deliberations.

The classification system at present in the Television Code of Broadcasting Practice does not refer to a period which is "family viewing time" or, to use Mr Nicholls’ term, "prime family time television". However, the codes dictate an observance of social responsibility which takes such concepts into account.

Broadcasters are required to classify programme material with a view to their broadcast in appropriate time slots, and deciding on these involves acknowledgment of a watershed, or hiatus, between material regarded as suitable for unrestricted family viewing, and that which is appropriate for an adult audience only.

The Authority acknowledges that 8.30pm, the time at which Heat was screened, is the watershed at which hour broadcasters are entitled to screen AO programmes. The broadcaster itself observes that it is a transitional time between family and adult entertainment, and it is the transitional nature of the timeslot which the Authority wishes to emphasise concerns it here. The Authority has found it useful to refer to the Portrayal of Violence code in this regard, where it states:

Special Note

There will be programmes containing stronger material or special elements which would fall outside the above AO guidelines. In such circumstances time designations such as "AO 9.30pm or later" may be appropriate.

While appreciating that violence only is contemplated here, the Authority considers that the approach indicated is equally pertinent to good taste and decency, the standard under which it assesses complaints about language used. In view of this approach, it pays particular attention to the language used in the film’s first half hour or so, the transitional time to which it has alluded.

It also takes into account further contextual issues to which the complainant refers: the time of year of the broadcast, and the fact that it was during school holidays.

The Authority notes that the Office of Film and Literature Classification (OFLC) classified the film as R18 – restricted to an audience of 18 years and above. The standard used by the OFLC in applying age restrictions relates to potential harm to viewers. Its classifications do not apply to television.

TVNZ classified the film as AO – containing material which is unsuitable for persons under 18 years of age. The Broadcasting Act does not mention harm: rather it requires standards consistent with the observance of good taste and decency. While the Authority considers TVNZ’s argument that it broadcast the film uncut so that viewers were able to see it "in the form that the director intended", it applies the statutory criteria relating to community standards of good taste and decency when assessing the complaint.

The Authority believes that this is the first time it has had to deal with a complaint that a film classified R18 by the OFLC has been screened by a free-to-air broadcaster at 8.30pm without cuts to take into account the expectations of a television audience. Because of the different statutory guidelines which apply to the two jurisdictions, the Authority reiterates that its decision is based on the broadcasting standards as set out in the Broadcasting Act. It now returns to the specifics of the complaint.

Mr Nicholls confined his complaint to the issue of language.

TVNZ assessed the film under standards G2 and G12, and declined to uphold the complaint under either. The Authority agrees with that decision on standard G2. It accepts TVNZ’s argument with the exception of that regarding the watershed. It believes that this matter is better addressed under standard G12.

Standard G12, as noted earlier, requires broadcasters to be mindful of the effect of a programme on children during their normally accepted viewing times. The Authority agrees with the complainant that the half hour following 8.30pm during summer school holidays is a time when broadcasters can reasonably expect children to be watching. It acknowledges that the broadcaster screened the following strongly worded warning before the film:

Heat is the cinema version, rated Adults Only, and recommended for a mature audience. It contains strong violence and language that may offend some people. We advise discretion.

The Authority is required to consider whether the classification and warning adequately covered the broadcaster’s responsibility to be mindful of the film’s effect on children, noting the time of year and the fact that it was school holidays. It understands the broadcaster’s view that "beeping" would not have been desirable in a script which relies on contemporary use of language in the social milieu depicted in the film, and also the broadcaster’s desire to screen it "in the form the director intended". Whether the film is suitable for screening at a later hour is a matter for the broadcaster. In the Authority’s view, it was not suitable at this hour because of the factors noted above and because of the offensive language used in the first half hour of broadcast in particular. Accordingly, the Authority finds that the screening of the film breached standard G12.

The Authority notes that while the broadcast of a warning, as in this instance, is evidence that a broadcaster has acknowledged its responsibilities under the Act, it does not accept that a warning in itself is all that is necessary for a broadcaster to meet those responsibilities in full.

For the above reasons, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Heat at 8.30pm on 3 January 1999 was a breach of standard G12 of the Television Code of Broadcasting Practice.

Having upheld a complaint, the Authority may make orders under s.13(1) and s.16 of the Broadcasting Act 1989. It invited submissions from the parties as to the imposition of a penalty on this occasion.

Mr Nicholls suggested that TVNZ be required to broadcast a statement explaining that it had made a mistake by screening the programme at 8.30pm. TVNZ argued that no penalty was warranted. It considered that it had complied with the classification requirements set out in the Television Code of Broadcasting Practice. If the Authority was of the view that the classifications needed to be rewritten, TVNZ said, that should occur through consultation rather than penalty.

The Authority does not accept that this decision signals a new direction for it. Indeed, this decision is consistent with its previous decisions requiring a period after 8.30pm before explicit adult material may be screened. Decision 1998-031, the ruling on a complaint about the broadcast by TVNZ of the film Desperate Remedies starting at 8.30pm, is a recent illustration of the Authority’s approach to this matter.

Nevertheless, because there appears to have been a misunderstanding on TVNZ’s part, the Authority decides not to impose an order on this occasion.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
14 June 1999

Appendix

The following correspondence was received and considered by the Authority in determining this complaint.

1. Alan Nicholls’ Formal Complaint to Television New Zealand Limited, made through the
    Broadcasting Standards Authority – 18 January 1999

2. TVNZ’s Response to the Formal Complaint – 8 February 1999

3. Mr Nicholls’ Referral of the Complaint to the Broadcasting Standards Authority
    – 20 February 1999

4. TVNZ’s Letter advising that it did not wish to comment further – 26 February 1999

5. TVNZ’s Submission on Penalty – 19 May 1999

6. Mr Nicholls’ Submission on Penalty – 22 May 1999