Ockey and Television New Zealand Ltd - 2018-024 (18 June 2018)
- Peter Radich (Chair)
- Paula Rose
- Wendy Palmer
- Te Raumawhitu Kupenga
- Jill Ockey
BroadcasterTelevision New Zealand Ltd
Warning: This decision contains language and themes that some readers may find offensive.
[This summary does not form part of the decision.]
National Treasure is a four-episode fictional mini-series telling the story of a famous comedian’s life falling into chaos following allegations against him of historical sexual abuse. The Authority did not uphold a complaint that the use of the word ‘fuck’ in the first two episodes, or a conversation about oral sex in the first episode, breached the good taste and decency or children’s interests standards. The Authority acknowledged that some viewers may find this content challenging or offensive. However, taking into account relevant contextual factors including the nature of the programme, the pre-broadcast warning for coarse language and references to rape, the Adults Only classification, the time of broadcast and audience expectations, the Authority found the harm alleged to have been caused did not justify restricting the right to freedom of expression. The programme was not targeted at child viewers and was broadcast in the Adults Only timeband.
Not Upheld: Good Taste and Decency, Children’s Interests
 National Treasure is a four-episode fictional miniseries that tells the story of a famous comedian’s life falling into chaos following allegations against him of historical sexual abuse.
 Jill Ockey complained about the use of the ‘F word’ throughout the first two episodes and also a conversation in the first episode between the comedian character and his daughter when she discussed performing oral sex on a Priest.
 The issues raised in Mrs Ockey’s complaint are whether the broadcast breached the good taste and decency and children’s interests standards of the Free-to-Air Television Code of Broadcasting Practice.
 The first and second episodes of the series were broadcast on 16 and 23 January 2018 at 8.30pm on TVNZ 1. The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.
Did the broadcasts threaten current norms of good taste and decency, taking into account the context?
 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. 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.1
The parties’ submissions
 Mrs Ockey submitted:
- The ‘F word’ was used frequently throughout both episodes, which was ‘absolutely offensive and quite unnecessary’.
- The exchange between the main character Paul and his daughter, Dee when Dee discussed performing oral sex on a Priest, was ‘disgusting, utterly offensive and absolutely unacceptable’.
 TVNZ submitted:
- National Treasure was classified AO (Adults Only) and broadcast at 8.30pm. The AO classification allows for material directed primarily at mature audiences.
- The episodes were preceded by a written warning which advised of Adults Only content including coarse language and the issue of rape. The material was consistent with audience expectations of the AO classification.
- 16 January episode: The exchange between Paul and Dee regarding the Priest was contextually important to their relationship. The way this exchange was handled was acceptable in an AO drama.
- 23 January episode: The level of adult coarse language was acceptable in the context of an AO programme preceded by a clear warning for coarse language.
 When we determine a complaint alleging a breach of broadcasting standards, we first give consideration to the right to freedom of expression. We weigh the value of the broadcast programme, as well as the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast.
 The drama series National Treasure dealt with challenging and topical issues of rape and sexual abuse in the entertainment industry. Broadcasting content that can challenge viewers and their perceptions, while touching on relevant cultural moments, is an important feature of freedom of expression. We therefore consider this series was of value.
 In considering the level of actual or potential harm that might be caused by the broadcasts, and the good taste and decency standard as a whole, we look at both the context of the broadcast, as well as the particular language complained about.
 Looking first at the use of the word ‘fuck’ in both episodes, we acknowledge that many people may find this word offensive. In the Authority’s 2013 What Not to Swear research, ‘fuck’ was found to be the eighth most offensive word tested, by those surveyed.2
 However, an assessment of the level of offensiveness of a particular word or phrase used in a programme is heavily context dependent. Relevant contextual factors in this case include:
- The programme was classified AO (Adults Only) and broadcast at 8.30pm.
- The programme featured a pre-broadcast, on-screen warning for frequent use of coarse language, which also noted the programme dealt with the issue of rape.
- National Treasure is a drama series targeted at an adult audience.
- National Treasure tackled challenging issues of sexual assault and rape in the entertainment industry.
- The word complained about was used sporadically throughout the episodes; coarse language did not dominate the programme.
 The approach developed by this Authority, in relation to the good taste and decency standard, is to require broadcasters to give viewers sufficient information to regulate their own, and their children’s, viewing behaviour.3 In other words, where broadcasters take effective steps to inform the audience of the nature of the programme, the standard is less likely to be breached.
 In this case we consider the factors outlined above, including the programme classification, the time of broadcast, the clear pre-broadcast warning and the subject matter of the programme, clearly signalled the type of content that would follow in the programme, including coarse language.
 We do not consider that the use of the word complained about took the episodes beyond audience expectations, or that it elevated the programme to a level which threatened community norms of good taste and decency. Viewers were given adequate information to make an informed choice about whether or not they wished to be exposed to the language used in the programme.
 With regard to the scene featuring a conversation about oral sex in the first episode, we acknowledge that this may have been challenging and offensive to some viewers. However, again taking into account the contextual factors outlined above, the brief nature of this conversation and the overarching narrative of the programme as a whole, we consider that viewers would have been adequately prepared for this character exchange and that it was therefore unlikely to cause widespread undue offence or distress. We also note this particular scene occurred almost 40 minutes into the episode, giving viewers an opportunity to decide whether or not to continue watching once they were aware of the programme’s subject matter and tone.
 Overall, as we have said we consider the programme series had value in dealing with challenging, topical and, for some, harmful or triggering issues of rape and sexual abuse. It did so in a respectful and restrained way that did not exceed the expectations of a high-end drama classified AO and targeted at an adult audience. Viewers were provided with sufficient information to enable them to make an informed viewing decision.
 We therefore find the broadcast did not reach the threshold necessary to find a breach of the good taste and decency standard, or to justify limiting the right to freedom of expression.
Did the broadcaster adequately consider children’s interests?
 The children’s interests standard (Standard 3) requires broadcasters to ensure children can be protected from broadcasts which might adversely affect them.
The parties’ submissions
 In addition to the points made under the good taste and decency standard, Mrs Ockey submitted that the timing of the programme (8.30pm) was unacceptable as children could have viewed this programme.
 In addition to the points made under the good taste and decency standard, TVNZ submitted:
- Children’s normally accepted viewing times are up until 8.30pm; after this time, Adults Only content is permitted to be shown.
- The warning provided viewers with sufficient information to enable parents/caregivers to protect child viewers from material which might adversely affect them.
 As the broadcaster notes, 8.30pm marks the beginning of the Adults Only timeband on free-to-air television, after which the broadcaster is permitted to broadcast AO programming. This programme was clearly rated AO, broadcast after the AO watershed and, as discussed above, it was preceded by a clear warning in terms of the likely content of the programme. The programme was targeted at adults and was not intended for a child audience.
 In these circumstances we are satisfied that the broadcaster took adequate steps to ensure children could be protected from content that may be unsuitable for them. We therefore do not uphold this part of the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
18 June 2018
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Jill Ockey’s formal complaint – 31 January 2018
2 TVNZ’s response to the complaint – 19 February 2018
3 Mrs Ockey’s referral to the Authority – 2 March 2018
4 TVNZ’s confirmation of no further comment – 11 April 2018
1 Guideline 1b to Standard 1 – Good Taste and Decency
2 What Not to Swear: The Acceptability of Words in Broadcasting (Broadcasting Standards Authority, 2013, page 9)
3 Guideline 1b