Office of Film and Literature Classification and Television New Zealand Ltd - 2016-029 (22 August 2016)
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Paula Rose
- Office of Film and Literature Classification
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
An episode of Criminal Minds featured the murder of three restaurant workers during an armed robbery, prompting the FBI’s Behavioural Analysis Unit to re-open a similar cold case that occurred six years earlier. The episode contained violence and drug use. The Authority did not uphold the complaint that the episode breached broadcasting standards relating to responsible programming, children’s interests and law and order. The Authority found that while the episode contained challenging content, it was classified AO and was preceded by an adequate warning. The programme’s classification, pre-broadcast warning and established reputation as a crime drama enabled viewers to make an informed viewing decision. The programme did not contain visual acts of violence, and the drug use was not portrayed in an instructional or encouraging manner and was part of the episode’s narrative context.
Not Upheld: Responsible Programming, Children’s Interests, Law and Order
 The storyline of an episode of Criminal Minds involved the murder of three restaurant workers during an armed robbery in Las Vegas, New Mexico, prompting the FBI’s Behavioural Analysis Unit (BAU) to re-open a similar cold case that occurred in the same town six years earlier. The episode contained scenes of armed robberies, bloody and beaten victims, burnt corpses, a shoot-out between FBI agents/local police and two criminals, and drug use. The programme was broadcast on TV ONE at 8.30pm on 15 February 2016.
 The Office of Film and Literature Classification (OFLC) complained that the episode contained strong adult content and should have been classified Adults Only (AO) – 9.30pm. It complained that the strongest content was broadcast soon after 8.30pm ‘creating a very sharp and jarring transition into strong adult content for any children who have remained watching’. OFLC also complained that the episode depicted the techniques of Class A intravenous drug use in a manner that was ‘easily imitable and portrayed as intensely pleasurable – thereby inviting imitation’.
 The issue is whether the broadcast breached the responsible programming, children’s interests and law and order standards as set out in the Free-to-Air Television Code of Broadcasting Practice.1
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Nature of the programme and freedom of expression
 Freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive information, is the starting point in our consideration of complaints. This includes the right of broadcasters to screen a wide variety of content, targeted at a range of audiences. We may only interfere and uphold complaints where the limitation on the right would be reasonable and justified in a democratic society.2 The first step is to consider the nature of the programme and the value that it carried in terms of the exercise of freedom of expression.
 Criminal Minds is a long-running criminal drama series about the FBI’s Behavioural Analysis Unit. This complaint relates to episode four of the eleventh season of Criminal Minds.
 The episode began with a verbal warning, which was also visually depicted on screen that stated, ‘This programme is rated Adults Only. It contains violence’.
 The beginning of the episode cut between flashes showing an armed robbery occurring in a restaurant in Las Vegas, New Mexico, and shots of the BAU team briefing of the crime the following morning. The scenes in the restaurant were dark and dimly lit, alternated with a black screen, and were accompanied by ominous music, in contrast to the bright and professional setting of the BAU briefing.
 The opening shot showed one of the young restaurant workers lying on the ground while gagged. He appeared to have been beaten, evidenced by blood on his face. A close-up of the criminal’s feet, from the victim’s perspective on the ground, was shown as he turned towards the victim. The criminal’s face was then shown in a close-up, mostly covered by a bandanna, as he leaned in and pointed towards the camera saying ‘You’re next’.
 The victim was then dragged along the floor while his hands were tied behind his back. A second male victim was shown sitting down and in obvious distress, also gagged and with blood on his face.
 The episode then cut to the BAU briefing. BAU Technical Analyst Penelope Garcia showed the team photos of the victims and described them as high school students who worked at the restaurant. The agent’s explanation was interspersed with shots of the victims at the restaurant, including of the third female victim, who was gagged and tied up in a similar fashion to the two male victims and also appeared to be injured. Viewers then heard a gun-shot occur off-screen, as the camera focused on the female victim’s face as she cried out. The two male victims were then shown slumped over while sitting on the ground.
 The episode then cut back to the briefing, as Garcia explained that all victims were murdered during a robbery which occurred at the restaurant last night. Photos of the victims’ dead bodies, which were bloody and burnt, were also shown. The agent further explained that the restaurant was set on fire after the murders took place.
 Back at the restaurant, the criminal was shown walking towards the female victim, who was lying on the ground. He knelt down and pointed the gun at the camera. There was a brief close-up freeze-frame of the barrel of the gun pointed directly towards the camera.
 The next scene depicted the agents realising the crime took place in the same town in which a similar crime occurred six years earlier. The agents stated:
Doctor Reid: The same exact type of robbery/homicide took place there six years ago.
Garcia: But that time it was at a place called the Burger Carrell and there were four victims.
Agent Morgan: Teenagers. They sexually assaulted the girls, then shot them execution style, robbed the place then burnt it down to the ground...
Doctor Lewis: Any suspects?
Agent Morgan: None, but we knew it was probably someone with a personal connection to the town.
Agent Rossi: Problem was, it’s a pretty transient place. Tourists, truckers, and a lot of the work opportunities are seasonal.
Doctor Reid: Given the level of violence, we profiled it was two or more criminally experienced [suspects], most likely under the influence of some type of narcotic, but they never struck again and the case went cold.
Doctor Rossi: Looks like it’s hot now.
Doctor Lewis: So are these guys back, or is this someone playing copycat?
Agent Hotchner: That’s what we need to find out...
 The two criminals were then shown riding away from the restaurant on motorbikes, as the restaurant was engulfed in flames. Images of the victims, apparently now deceased, were shown as flames flickered around them. The two male victims were slumped over and not moving, and the female victim was shown lying face-down on the floor from the mid-torso up. The part of her body which was visible to the camera was naked. These scenes were followed by the programme’s opening credits sequence. The events described in paragraphs - occurred in the first two-and-a-half minutes of the episode.
 The next segments of the episode were broadcast approximately three minutes into the episode, and focused on the BAU team travelling to Las Vegas, New Mexico and discussing the case with local police. Brief images of the victims’ burnt and bloody dead bodies were shown in photos and on electronic devices during these discussions.
 Several agents then visited the morgue, where the burnt bodies of the victims were shown in black and white photographs, as well as on the morgue examination tables. This scene was broadcast at approximately 8.38pm. The agents discussed the details of the victims’ injuries with the pathologist as follows:
Doctor Reid: Several ante-mortem wounds, facial lacerations, fractured jaw, fractured skull...
Pathologist: Yeah, it was a brutal beating. All three of them had broken ribs too.
Doctor Reid: And ligature marks.
Pathologist: Looks like the boys were bound with their own belts and electric wires – I found leather and melted plastic in their clothes. But [the female victim] was different. There’s evidence of sexual assault.
Agent Morgan: Any recoverable DNA?
Pathologist: None. Whatever wasn’t destroyed by the fire got washed away by the sprinklers. But she was recovered without clothes on. Based on the cotton and nylon fibres I found around her wrists, I think they restrained her with her own underwear.
Doctor Reid: That’s precisely what happened to the female victim six years ago.
Agent Morgan: Those details weren’t released to the press. These aren’t copycats. These are the same guys.
 Later, approximately 16 minutes into the episode, the BAU discussed the differences between the present case and the case from six years earlier, including the positioning of the victims. Doctor Lewis asked ‘You think they made the boys watch the sexual assault?’ to which Agent Morgan replied ‘Well, if they did, they probably made her watch the murders’. Doctor Lewis then commented ‘psychological sadism’. The agents concluded that maybe only one of the criminals was involved in the original crime, and had found a new partner.
 Then approximately 17 minutes into the episode, one of the criminals was shown entering a pharmacy and holding the two staff at gun-point while saying ‘Evening folks. I’m going to need you to fill a prescription’. The criminal looked through the pharmacy shelves and took a container clearly labelled with the drug name. He then crushed the tablets, poured clear liquid in a bowl, dabbed cotton wool in the liquid, filled a syringe with the solution, flicked the syringe, tapped his vein and then injected himself in the arm. As the criminal injected the drug, the background heavy metal music swelled and the shot became out of focus. The syringe inserted into the criminal’s arm was blurred or not shown in the shot. The criminal then returned to the pharmacy staff, who had been bound and gagged and appeared injured and bloody. The criminal said to them, ‘Alright ladies and gentleman, we’re going to have a little fun’ as he moved the female victim away from the male victim.
 The episode continued with images of the two pharmacy staff. A gun-shot wound was evident on the female victim’s head, who was fully clothed. The agents then watched the surveillance footage from the pharmacy, and their voice-over confirmed that the criminal was looking for a particular drug.
 Later, approximately 37 minutes into the episode, the two criminals were involved in a confrontation at a service station. One of the criminals shot the staff member in the head and he collapsed off screen. The other criminal then threatened a father and his young son, who had been hiding in the corner of the store, with a gun. The next scene showed the uninjured father and young son talking to the BAU team. The agents explained that one of the criminals prevented the other from shooting the father and son, and then fled the scene.
 The episode concluded with a shoot-out between the BAU team and local police, and the two criminals. This scene was broadcast at approximately 55 minutes into the episode. During the shoot-out, the ex-girlfriend and young son of one of the criminals – who he had forced to accompany him, as he wanted to be a family again – were shown being ushered to safety into a police car. The criminals were ultimately shot by the law enforcement agents. One of the criminals was shown being hit by several bullets, and then falling to the ground. There were no shots of the injured or dead bodies. The final scene of the episode showed the funeral for the female restaurant worker.
Freedom of expression
 While series like Criminal Minds, which frequently contain violent and other challenging content, may not be to everyone’s liking, an important aspect of the right to freedom of expression is the public’s ability to access a diverse range of content, within reason. Criminal Minds is a popular television series with an established fan base. The programme has run for 11 seasons, demonstrating continuing viewer demand for the programme.
 The broadcaster’s right to screen this content, and the audience’s right to receive it, must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards. The harm alleged by the complainant is that viewers, and potentially children, were subjected to strong adult content, including instructional drug use, which should have been subject to a higher classification and a later time of broadcast.
Was the programme correctly classified and screened in an appropriate timeslot?
 The responsible programming standard (Standard 8) requires broadcasters to ensure that programmes are correctly classified and screened in the appropriate time-band.
The parties’ submissions
 OFLC argued that the episode depicted significant violence, sadistic cruelty, horrific injuries to victims, terrorised victims (including children) and ‘detailed descriptions of sexual violence’ which clearly constituted strong adult content that went beyond expectations of the AO classification. OFLC considered the episode in question was distinguishable from typical episodes, as the stronger content was featured at the beginning, rather than the episode building up to a ‘violent climax’ at the end. In the complainant’s view the content in this episode was more gruesome, confronting and disturbing than most other episodes in the series and therefore should have been screened at 9.30pm.
 TVNZ argued the episode was appropriately classified AO and screened at 8.30pm for a number of reasons, which we have summarised as follows:
- The episode was preceded by a written and verbal warning which gave notice of adult, violent material.
- The AO classification was shown at the beginning of each programme segment.
- It is unlikely the programme would have appealed to child viewers.
- Episodes of Criminal Minds follow a formulaic structure, beginning with the criminal activity, often murder.
- Criminal Minds is a long-running fictional series which, through story-telling, reflects a variety of criminal behaviours; ‘any work of fiction, if it is to ring true, must reflect the mores of the place and time in the context it is in’.
- While the storyline was somewhat menacing, the violence at the start of the episode was implied rather than explicit.
- For the purposes of classification, there is a significant difference between the FBI agents discussing what happened (including murder, sexual assault and beatings) and these violent scenes being acted out.
- The violent material was relatively brief and not graphic, did not dominate the episode and was justified by the context in which it screened.
- Without a brief visual description of the crimes committed, there would not be any dramatic context or impending peril to justify the FBI characters taking the actions they do to solve the crimes.
- Referring to sexual assault as an element of criminal activity is not unusual within the various storylines of Criminal Minds and other programmes in this genre; in this instance it was referred to as ‘psychological sadism’ and was not shown.
- The scenes complained about involving children only involved child actors and neither was shown being hurt.
 We have carefully considered both parties’ submissions.
 OFLC noted that it had examined and classified ten full series of Criminal Minds on DVD. Eight of these series have been classified R16 (restricted to persons 16 years and over). That classification was made under the Films, Videos, and Publications Classification Act 1993.
 In our determination we have assessed the episode against the relevant classifications and the responsible programming standard under the Free-to-Air Television Code of Broadcasting Practice which applied in February 2016. Under the applicable code, the relevant classifications were as follows:
AO – Adults Only
Programmes containing adult themes and directed primarily at mature audiences.
AO programmes may be screened between midday and 3pm on weekdays (except during school and public holidays as designated by the Ministry of Education) and after 8.30pm until 5am.
AO – 9.30pm3
Programmes containing stronger material or special elements which fall outside the AO classification. These programmes may contain a greater degree of sexual activity, potentially offensive language, realistic violence, sexual violence, or horrific encounters.
 We recognise that this episode of Criminal Minds contained challenging content that may not have appealed to all viewers. However, there are several key reasons which lead us to the conclusion that the classification and time of broadcast of this episode did not breach broadcasting standards. These reasons are:
- the absence of visual portrayal of acts of violence
- the clear pre-broadcast warning for violence
- the context of this programme. Criminal Minds is a well-known criminal drama series which has run for eleven seasons, and there is a corresponding high level of audience expectation and awareness of the type of content featured in the programme.
- this episode can be distinguished from the episodes that were the subject of previous upheld complaints.
 We expand on these reasons below.
 We do not consider the episode overall visually depicted graphic or extreme violence which would constitute strong adult content as envisaged by the higher AO–9.30pm classification. The violent acts were largely described by the BAU and occurred off-screen. The descriptions were not explicit or detailed and were delivered in a brief and straightforward manner as the agents endeavoured to solve the crime. The images of the victims’ bodies had a level of realistic detail, but did not go beyond what viewers would expect of an AO-classified criminal drama in this timeslot.
 The episode contained some references to ‘sexual assault’. However, the actual assault was not portrayed either visually or verbally. These references were also justified by the episode’s narrative context, as this element of the crime enabled the BAU team to determine whether or not the crime was committed by the same perpetrators as the original crime.
 With respect to the complainant’s concerns regarding child victims in the episode, any child characters threatened by the criminals were shown safe and unharmed in following scenes. The episode did not contain any depictions of graphic violence towards children.
 The episode was preceded by a clear visual and verbal warning, which stated that the programme was classified AO and contained violence. We see this as a clear indication of the material featured in the episode, which adequately warned viewers and gave them an opportunity to make a different viewing choice.
Audience expectation and context
 Criminal Minds is a well-known and long-running criminal drama series on free-to-air television. The programme has run for 11 seasons, each containing over 20 episodes. The first season was broadcast in New Zealand in 2006, and each episode of all 11 seasons has been screened in the 8.30pm timeslot. Other programmes in the crime drama genre have also typically aired at 8.30pm.
 The title of the programme itself, and the well-established crime drama genre, is a strong indication to viewers that Criminal Minds is likely to contain fictional depictions of violence and other crimes. The particular episode subject to complaint followed the programme’s typical structure – and that of many other crime dramas and films – which begins with the crime as the ‘hook’ to draw in viewers. The various law enforcement agents then work backwards to try to solve the crime. Therefore we do not think the inclusion of the crime in the episode’s opening scenes would have been unexpected to regular viewers. It was also a necessary component of the episode’s storyline.
Authority’s previous decisions
 We note that the Authority has previously found that episodes of Criminal Minds warranted a higher classification of AO–9.30pm.4 In those episodes, graphic violence was visually portrayed onscreen and in one case the warning insufficiently notified audiences about the content they could expect from the programme.
 In this case, the content was not so strong as to reach the higher threshold for AO–9.30pm, and the episode was preceded by a specific visual and verbal warning for violence. We therefore consider that the AO classification and time of broadcast in this case were acceptable. The AO classification, as defined in the code, still signalled to viewers that the programme contained adult themes and adult content, and was directed at a mature audience.
 In our view, New Zealand audiences generally demonstrate a level of sophistication in the way they watch television. Viewers are aware of well-known and long-running programmes such as Criminal Minds, and there is a significant level of understanding about the nature of this programme and the type of content that can be expected. Now in its eleventh season, the programme has an established audience, and those who do not wish to view it are able to make a different viewing choice. This audience awareness is aided by the level of information about the programme provided by the broadcaster, which in this case included an AO classification and a visual and verbal warning for violence.
 We are satisfied that the episode would not have been outside audience expectations and did not contain strong adult content which warranted the higher classification of AO–9.30pm or a later time of broadcast. We therefore do not uphold the complaint under Standard 8.
Did the broadcaster adequately consider children’s interests?
 The children’s interests standard (Standard 9) requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm. The purpose of the standard is to protect children from broadcasts which might adversely affect them.5
 Guideline 9b states that when scheduling AO material to commence at 8.30pm, broadcasters should ensure that strong adult material is not shown soon after the watershed.
The parties’ submissions
 OFLC argued that strong adult content was broadcast at 8.30pm in violation of guideline 9b. It stated this content included the ‘gruesome depiction of bloody and burnt victims in a mortuary, detailed descriptions of sexual violence, instructional drug use and a violent armed robbery’. OFLC noted that the programme My First Home immediately preceded this episode of Criminal Minds, ‘creating a very sharp and jarring transition into strong adult content for any children who have remained watching’.
 TVNZ submitted that the content at the beginning of the episode was acceptable to screen, as while it contained some threat and a discussion of violence which had occurred, the violence was not visually depicted. It noted that while bodies were shown, they were only shown briefly on devices such as tablets or in photographs.
 TVNZ stated the footage in the morgue was brief and only included medium to long shots of the victims’ burnt faces. Regarding the programme line-up, TVNZ argued this was aimed at adult viewers, and that My First Home was a ‘factual entertainment programme viewed by families and mature viewers’. The broadcaster considered it unlikely that this programming would appeal to unsupervised child viewers.
 TVNZ also referred to the Authority’s Children’s Media Use research, which it said found the majority of children have stopped watching television by 8.30pm.
 TVNZ reiterated that Criminal Minds was classified AO and was preceded by a clear visual and verbal warning which gave a strong indication of the type of content likely to be included in the episode. It considered the series was well-known and viewers were aware of its likely content, and for these reasons the interests of child viewers were adequately considered.
Our analysis – guideline 9b
 We acknowledge that the opening scenes of Criminal Minds, described above at paragraphs -, contained challenging content. We also recognise that there is a need for broadcasters to exercise caution when determining the level of AO content to be screened during any transition period from G or PGR to AO programming.6 For the following reasons, we consider the broadcaster took sufficient care in this case.
 The opening scenes were based on a violent crime that had taken place. The episode did not show violent acts occurring in graphic detail, and in our view did not constitute strong adult content broadcast close to 8.30pm.
 With respect to the complainant’s concerns about sexual violence, the characters verbally referred to ‘sexual assault’, but there was no additional visual or verbal description. We do not think the verbal mention of ‘sexual assault’ without accompanying detailed verbal explanation or visual illustration, amounted to strong adult content.
 The wording of this standard requires broadcasters to consider the interests of child viewers. Research commissioned by this Authority suggests that the majority of child viewers have stopped watching television by 8.30pm.7 The research also found that parents and children make use of warnings and classifications to regulate their viewing behaviour.8 The AO classification and clear pre-broadcast warning, as well as the programme’s established reputation after 11 seasons, in our view sufficiently signposted for parents and caregivers the nature of this programme, and allowed a reasonable opportunity to exercise discretion.
 Accordingly, we find that the broadcaster adequately considered children’s interests and we do not uphold the complaint under Standard 9.
Did the broadcast encourage viewers to break the law, or otherwise promote, condone or glamorise criminal activity?
 The intent behind the law and order standard (Standard 2) is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.9 The standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society.10
 Guideline 2a to the law and order standard states that caution should be exercised in broadcasting items which explain the techniques of crime in a manner which invites imitation.
The parties’ submissions
 OFLC argued that the episode clearly illustrated the techniques of Class A intravenous drug use in a manner that was ‘easily imitable and portrayed as intensely pleasurable – thereby inviting imitation’. It stated that while the pharmaceutical compound depicted in the episode may only be able to be sourced illegally in New Zealand, injecting an indeterminate quantity of any pharmacy-grade narcotic in the method shown was highly dangerous.
 TVNZ did not consider that the episode glamorised crime or condoned the actions of the criminals, arguing that ‘The behaviour shown in the programme was portrayed as being illegal and reprehensible. The programme’s message was that this type of behaviour was a concern and the BAU search[ed] for a way to apprehend the perpetrators’. TVNZ noted that drug use is a common dramatic device employed in a number of movies and television programmes and is not in itself ‘objectionable’. It did not consider that crushing up a pharmacy-only drug and injecting it in the method shown was an ‘unusual criminal technique’, but argued nonetheless that the drug was not available in New Zealand pharmacies and therefore the specific actions depicted in the episode could not be replicated by viewers.
 The law and order standard is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes. The depiction of criminal behaviour is not in itself sufficient to breach the standard. Context is crucial in assessing a programme’s likely practical effect, and a distinction will usually be drawn between factual, and fictional or dramatic depictions of criminal activity.11
 Here, the criminal’s drug use was an important aspect of his character development and of the episode’s narrative context. It was not unexpected to see some drug use in a long-running criminal drama series which was classified AO. Drug use can be a significant component of the criminal narrative and is a common feature of television programmes and films of this genre.
 In our view, the episode did not portray drug use in a way that could be easily imitated. The drug scene was a short sequence and lacked sufficient detail to be instructional. The specific substances (excluding the labelled bottle), amounts and other essential instructional details were not disclosed. In this case, we consider the depiction of the mere act of injecting a known Class A drug into one’s vein was not sufficiently unusual or informative to enable imitation.
 Further, rather than condoning or glamorising the criminal’s actions, the programme emphasised the negative associations with drug use. Only the two characters who were clearly portrayed as hardened criminals were shown using drugs. The drug use was explicitly linked to violent and criminal activity, which had fatal consequences for the criminals involved. Immediately after injecting himself, one criminal was shown further intimidating his victims (the pharmacy staff). Both criminals were ultimately apprehended and killed during a shoot-out with FBI and local police agents, at the end of the episode. We do not think that reasonable viewers would have been encouraged to imitate the drug use on the basis of the single scene subject to complaint.
 Accordingly, we do not uphold the complaint under the law and order standard.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
22 August 2016
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 The Office of Film and Literature Classification’s formal complaint – 19 February 2016
2 TVNZ’s response to the complaint – 23 March 2016
3 OFLC’s referral to the Authority – 8 April 2016
4 TVNZ’s response to the Authority – 22 June 2016
5 OFLC’s final comments – 28 June 2016
6 Authority’s request to TVNZ for further information – 18 July 2016
7 TVNZ’s response to Authority’s request for further information – 20 July 2016
1 This complaint was determined under the previous Free-to-Air Television Code, which applied up until 31 March 2016. The new Broadcasting Standards in New Zealand Codebook took effect on 1 April 2016 and applies to any programmes broadcast on or after that date: http://bsa.govt.nz/standards/overview
2 See sections 5 and 14 of the New Zealand Bill of Rights Act 1990
3 The AO–9.30pm classification has not been retained in the current Free-to-Air Television Code.
5 E.g. Harrison and Television New Zealand Ltd, Decision No. 2008-066
6 See guideline 2b to the Programme Information standard in the current Free-to-Air Television Code.
7 Children’s Media Use Study (Broadcasting Standards Authority, March 2015) at page 30
8 As above at page 90
9 See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082
10 Hunt and Māori Television, Decision No. 2009-010
11 Commentary on the standards: Law and Order, Broadcasting Standards in New Zealand Codebook at page 15