BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 1 (good taste and decency) – swearing and sexual material were permissible in the context of an AO comedy programme screened at 10pm and preceded by a specific warning – contextual factors – not upheld

Standard 8 (responsible programming) – programme correctly classified and screened in an appropriate timeslot – not upheld

This headnote does not form part of the decision.

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Introduction

[1]  A Night at the Classic, a late-night comedy series featuring New Zealand comedians, contained swearing and sexual references. The programme was classified Adults Only (AO) and was broadcast at 10pm on 3 January 2013 on TV One. It was preceded by a visual and verbal warning for “coarse language and sexual material”.

[2]  Kevin O’Connor made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme contained unacceptable language, including the words “cunt”, “fuck”, and blasphemies.

[3]  The issue is whether the programme breached standards relating to good taste and decency (Standard 1) and responsible programming (Standard 8) as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the programme threaten current norms of good taste and decency?

[5]  Standard 1 (good taste and decency) is primarily aimed at broadcasts that contain sexual material, nudity, coarse language or violence.¹ The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.²

[6]  We acknowledge that some viewers dislike and are offended by this kind of language, and that the language used in this programme, especially taken cumulatively, was at the outer limit of what many people would consider to be acceptable for broadcast on free-to-air television. Research conducted by the Authority on the acceptability of words in broadcasting indicates that “cunt” was considered unacceptable by 70 percent of people surveyed, 40–48 percent considered “fuck” and a number of its variations unacceptable, and 18–26 percent considered “god”, “Jesus” and “Jesus Christ” unacceptable.³

[7]  As such, the use of these words can only be saved by the context in which they were broadcast. This includes both the “narrative” context (the context in which any content occurs, for example the storyline or premise of the programme), and of more importance here, the “external” context, such as the time of broadcast, the programme’s classification, the target audience and the use of warnings.⁴

[8]  We must also give proper consideration to the right to freedom of expression. We assess the importance of the particular speech and the extent to which the values of freedom of expression are engaged, and weigh this against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards. Both the Authority and the High Court have acknowledged that humour and satire are important forms of speech, on which society places value.⁵

[9]  In considering whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of the good taste and decency standard, we note there are numerous contextual factors which support the broadcaster’s decision to include coarse language and sexual references in the programme, namely:

• A Night at the Classic was classified Adults Only
• it was broadcast at 10pm on a Thursday, an hour-and-a-half after the AO watershed
• the programme was preceded by a clear visual and verbal warning for “coarse language and sexual material”
• it was screened as part of an adult comedy line-up and was preceded by Threesome, an AO programme which contained adult themes and language
• the programme’s target audience
• audience expectations of a late-night comedy show and of stand-up comedy.

[10]  Weighing all of these considerations, we think that, on balance, the language was acceptable in context. The approach developed by the Authority is to require broadcasters to give viewers sufficient information to regulate their own viewing behaviour. This places a degree of responsibility on viewers to inform themselves about the viewing choices they make.⁶ We are satisfied that in this instance viewers were provided with ample information to make an informed choice whether or not to watch the programme, and that for anyone who chose to continue watching, the level of content would not have been unexpected, and was therefore less likely to offend most viewers, when taken in context.

[11]  Accordingly, we find that upholding the complaint under Standard 1 would unreasonably restrict the broadcaster’s and the audience’s right to freedom of expression, and we decline to uphold this part of the complaint.

Did the programme breach the responsible programming standard?

[12]  The responsible programming standard (Standard 8) is primarily aimed at ensuring that programmes are correctly classified and screened in appropriate timeslots. The standard exists to create consistency and certainty for viewers, who rely on the classification of a programme and its time of broadcast to give them a fair indication of its content.

[13]  A Night at the Classic was classified AO and screened at 10pm on a Thursday, an hour-and-a-half after the 8.30pm AO watershed. At this later time viewers could reasonably expect a greater degree of AO content, particularly given the explicit pre-broadcast warning.

[14]  There is only one classification higher than AO – AO 9.30pm – which is used by broadcasters internally only and is not displayed on broadcasts, and which restricts the broadcast of stronger AO material to after 9.30pm. Because A Night at the Classic was screened at 10pm, there is no basis on which we could find a breach of Standard 8.  

[15]  We therefore decline to uphold this part of the complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
11 June 2013

Appendix

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

1           Kevin O’Connor’s formal complaint – 4 January 2013

2          TVNZ’s response to the complaint – 11 February 2013

3          Mr O’Connor’s referral to the Authority – 25 February 2013

4          TVNZ’s response to the Authority – 27 March 2013

²Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November 2006)

³What Not to Swear: The Acceptability of Words in Broadcasting (Broadcasting Standards Authority, 2010) at page 19

⁴Television New Zealand Ltd v West PDF (3.33 MB) HC AK CIV-2010-485-002007 [21 April 2011] per Asher J

⁵See, for example, Swift and Television New Zealand Ltd, Decision No. 2012-017; guideline 6a to Standard 6 (fairness) and guideline 7a to Standard 7 (discrimination and denigration) of the Free-to-Air Television Code; and Browne v CanWest TVWorks Ltd PDF109.85 KB HC WN CIV 2006 485 1611  [31 July 2007]

⁶See, for example, Preston and Television New Zealand Ltd, Decision No. 2012-022, and Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November 2006).