O'Rourke and Television New Zealand Ltd - 2003-116, 2003-117
- P Cartwright (Chair)
- Diane Musgrave
- Tapu Misa
- R Bryant
- Michelle O’Rourke
- Michelle O'Rourke
BroadcasterTelevision New Zealand Ltd
Reel Life: The Truth about Lesbian Sex – promos – comments made by several women in the first promo – people examining sexual devices in the second promo – broadcast 5.45pm and 10.24pm respectively – offensive
Standard 1, Guideline 1a – context – no uphold
Standard 7, Guideline 7b – classification of promos correct – majority – no uphold
Standard 9, Guideline 9a – broadcaster mindful of child viewers – majority – no uphold
This headnote does not form part of the decision.
 Two promos, broadcast on TV One at 5.45pm and 10.24pm respectively, advertised an upcoming documentary, Reel Life: The Truth About Lesbian Sex. The first promo portrayed several women talking about their sexual practices. The second promo showed different sexual devices being examined by various people.
 Mrs O’Rourke complained to Television New Zealand Ltd, the broadcaster, that it was inappropriate to broadcast a promo for a documentary classified AO, at 5.45pm. The complainant contended the adult content of the promo was offensive when screened during family viewing.
 In respect of the second promo, Mrs O’Rourke’s complaint encompassed the visual display of sexual devices and, in particular, the portrayal of a device "vibrating against a woman’s face".
 In response, TVNZ maintained that the complainant was confused about the content and timing of the promos she had identified. The broadcaster argued that the content of each promo fitted the classification period in which it was broadcast, and, in accordance with the Free-to-Air Code of Broadcasting Practice, such placements were acceptable. Accordingly, it declined to uphold the complaints.
 Dissatisfied with TVNZ’s decision, the complainant referred the complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, a majority of the Authority declines to uphold the complaints.
 The members of the Authority have viewed the tapes of the promos complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.
 "The truth about lesbian sex for me is that I am having the best sex that I have ever had in my entire life". This was one in a series of comments made by young women in a promo for the documentary Reel Life: The Truth About Lesbian Sex, broadcast on TV One at 5.45pm on an unspecified date. The second promo, broadcast on TV One at 10.24pm on Monday 30 June 2003, depicted different sexual devices being examined by several people.
 In her initial letter to TVNZ, Mrs O’Rourke complained that it was inappropriate to broadcast a promo for a documentary classified AO, at 5.45pm, during family viewing.
 In her second letter Mrs O’Rourke’s complaint encompassed not only the visual display of sexual devices in the promo, but also the depiction of a device "vibrating against a woman’s face". In Mrs O’Rourke’s view, while the adult content of the promo was acceptable during Adults Only viewing, it was offensive when screened during family viewing.
 In view of the complainant’s concerns, TVNZ assessed the complaint under Standard 1, Standard 7 and Standard 9 of the Free-to-Air Television Code of Broadcasting Practice. The Standards and relevant Guidelines read:
Standard 1 Good Taste and Decency
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.
1a Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme’s classification (see Appendix 1). The examples are not exhaustive.
Standard 7 Programme Classification
Broadcasters are responsible for ensuring that programmes are appropriately classified and adequately display programme classification information, and that time-bands are adhered to.
7b Broadcasters should ensure that all promos (including promos for news and current affairs) comply in content with the classification band in which they are shown. For example, promos for AO programmes shown outside Adults Only time must conform in content with the classification of the time-band in which they are broadcast.
Standard 9 Children’s Interests
During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.
9a Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material which would disturb or alarm them.
The Broadcaster’s Response to the Complainant
 TVNZ’s response to Mrs O’Rourke’s initial complaint referred to the Free-to-Air Code of Broadcasting Practice. TVNZ wrote:
[The Code] specifically allows trailers for Adults Only programmes outside AO time provided that their content fits the classification period in which they are shown.
 TVNZ noted that none of the promos broadcast prior to 7.00pm contained anything other than women talking. When compared to the surrounding programmes TVNZ contended that the promo complained about was inoffensive.
 TVNZ, in its response to the formal complaint, indicated that there was some confusion over the timing and content of the promos identified by the complainant. TVNZ wrote:
While TVNZ did screen a 9-second trailer for The Truth About Lesbian Sex which showed what appeared to be sex toys, that trailer was limited to Adults Only time and was not screened in the 5.45pm-7pm period to which your letter appears to allude … All other screenings (and there were 40 others) involved either a 20-second long version of women talking, or a 9-second version of the same material.
 TVNZ noted that the promo referred to by the complainant as depicting various "sex toys" was broadcast at 10.24pm, and was "limited to ‘Adults Only’ time." In its formal response, the broadcaster confined its decision to the promo broadcast at 5.45pm.
 Dealing first with the good taste and decency aspect of that complaint, TVNZ noted that the comments made by the young women were not inherently "dirty" or inappropriate. TVNZ argued:
The trailer provided no hints about what a lesbian relationship involved, just oblique references to women "not having a clue" about what to do and a final comment from an unseen woman who said that "the truth about lesbian sex is that I am having the best sex I have ever had in my entire life".
Accordingly, TVNZ declined to uphold this aspect of the complaint.
 TVNZ also declined to uphold Standard 7 of the Television Code. It explained, that the promo was broadcast during How’s Life? which in turn was broadcast prior to One News. TVNZ noted that none of the material which earned the documentary its AO rating was included in the promo. Therefore, in terms of the programme classification to which Standard 7 related, the broadcaster was satisfied that the promo’s content conformed with the classification time band in which it was broadcast.
 Turning to Standard 9, TVNZ confirmed that the promo portrayed a number of women responding to an unknown question about an ostensibly unidentified topic. TVNZ argued that the promo was likely "to go over the heads of innocent children" who might be watching How’s Life? Furthermore, as it was unlikely to be the choice of programme for a child, TVNZ was satisfied that it had been mindful of the interests of children. TVNZ also added, that if children had watched How’s Life?, it was most unlikely that they would have watched it without adult supervision. For these reasons, TVNZ declined to uphold the complaint under Standard 9.
The Referral to the Broadcasting Standards Authority
 Mrs O’Rourke acknowledged that the timing and content of the broadcasts referred to in her complaint may have caused confusion. She explained that the promo to which she took exception was broadcast at 10.24pm during the screening of Test the Nation. Mrs O’Rourke contended that Test the Nation was "likely" to have been rated "General Audience". Therefore, it was an inappropriate time to screen a promo for an AO programme that contained images of sexual devices. Consequently, she sought a review of TVNZ’s findings.
The Broadcaster’s Response to the Authority
 TVNZ noted that although its decision not to uphold the complaint was based on the promo broadcast at 5.45pm, it concluded that a decision, based on the promo broadcast at 10.24pm, was likely to have produced the same result.
 The broadcaster confirmed that there was no sexual activity depicted in the promo at 10.24pm and, even though it identified a number of "sex toys", the shots were inexplicit and the people examining the devices were portrayed as "playing" with them.
 TVNZ advised that it had received one other formal complaint regarding this promo, when it had screened during the news programme at midday. Even though it had been broadcast during the afternoon AO time band the broadcaster upheld the complaint because the content was considered inappropriate for pre-school children who may have been watching.
 The broadcaster, while acknowledging that the programme Test the Nation may have been watched by family groups, concluded that a 10.24pm screening (as opposed to a 12.20pm screening) was a different proposition. It argued:
… the younger children – and even school-aged children, for this was a week night in term time – would largely be excluded because of the hour of the night.
The Complainants’ Final Comment
 Mrs O’Rourke noted that while the promo was broadcast at 10.24pm, the programme Test the Nation during which it was screened started at 7.30pm. She also noted that there was no prior warning, even though the promo displayed various "sex toys".
 Mrs O’Rourke concluded by expressing her concern with the inconsistent approach adopted by TVNZ in upholding a complaint regarding an identical promo broadcast at 12.20pm, and not upholding her complaint.
The Authority’s Determination
 When it determines a complaint that a broadcast contravenes Standard 1 of the Television Code, the Authority is required to determine whether the material complained about breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but does not determine whether the promos breached the standard. Accordingly, the Authority has considered the context in which the promos complained about were broadcast.
 The Authority observes that the first promo broadcast at 5.45pm portrayed several young women talking about their sexuality. The second promo broadcast at 10.24pm depicted several people examining a number of sexual devices. The Authority considers that the contextual factors relevant to its determination include the nature of the documentary from which extracts for the promos were taken. Reel Life: The Truth About Lesbian Sex was, in the Authority’s view (see Decision No: 2003-114/115), a candid and informative documentary dealing with some of the sexual practices among lesbians. It observes further that there was no nudity in either promo and that no explicit sexual activity was portrayed in the second which, the Authority notes, was screened about two hours after the start of the AO watershed.
 The Authority finds that the comments made by the woman in the promo broadcast at 5.45pm were not inherently offensive, even when broadcast in the G time slot, particularly when adult aspects of the correspondence dealt with by the panel in the programme How’s Life?, were considered. Similarly, when taking into account the timing of the promo broadcast at 10.24pm, the Authority concludes that the content was not inconsistent with the standards of good taste and decency. Accordingly, the Authority does not consider that either promo breached the Standard 1 requirement for good taste and decency in context.
 Guideline 7b of Standard 7 allows for promos of AO programmes to be broadcast in an earlier time band, provided the promo itself complies with the classification band in which it was broadcast. In view of this provision, the Authority has considered whether the promos complained about conformed in content with the respective time-bands.
 It considers first the promo broadcast at 5.45pm and records two of the comments made by women participating in the documentary:
I just started to fantasise about having sex with women.
The truth about lesbian sex for me is that I am having the best sex that I have ever had in my entire life.
 The Authority also records the G and AO classifications contained in the Code.
G – General
Programmes which exclude material likely to be unsuitable for children. Programmes may not necessarily be designed for child viewers but must not contain material likely to harm or distress them
G programmes can be screened at any time.
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.
 The Authority acknowledges that the decision as to whether the promo was correctly rated G is finely balanced. Nonetheless, a majority considers that neither of the comments referred to above were inherently offensive and, moreover, the content was not dissimilar to that of the surrounding programme which also addressed adult issues. Accordingly, the majority declines to uphold the complaint as a breach of the requirement in Standard 7.
 A minority of the Authority (Ms Tapu Misa) disagrees. The minority considers that references to sexual fantasy and "the best sex of my life" were adult themes which were inappropriate for broadcast during the G time band, when there is a high probability that children may be watching. In the minority’s view, the promo contained adult content and should have been classified accordingly.
 In regard to the second promo, broadcast at 10.24pm, the Authority notes that there was no nudity and no explicit sexual conduct associated with the devices being examined. Accordingly, the Authority is unanimous in the view that the promo was appropriately broadcast at that time, some two hours after the start of the AO time-band.
 However, the Authority is also mindful of the fact that promos are usually broadcast without warning. Accordingly, it again encourages broadcasters to exercise caution when extracting material from a programme to be included in a promo, especially when the promo is designed to be broadcast in a less restrictive time-band. Similar measures should also apply when a promo is placed in a programme that is broadcast over more than one time-band.
 Standard 9 of the Television Code requires broadcasters to consider the interest of child viewers during their normally accepted viewing times. The Authority considers first the promo broadcast at 10.24pm and is unanimous in the view that 10.24pm is not normally accepted viewing time for children. Accordingly, it declines to uphold this aspect of the complaint.
 In regard to the promo broadcast at 5.45pm, a majority of the Authority considers that the difference in the content and treatment between the two promos demonstrates that the broadcaster was mindful of the requirement to consider the interests of child viewers. Accordingly, the majority also declines to uphold this aspect of the complaint as a breach of Standard 9.
 However, a minority of the Authority (Ms Tapu Misa) disagrees. The minority does not accept the broadcaster’s submission that the comments, referred to above, were "oblique". It considers that the comments were unambiguous and referred specifically to adult subject matter. In the minority’s view, the broadcaster was not sufficiently mindful of children’s viewing interests.
 A majority of the Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is neither reasonable nor demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the reasons given above, a majority of the Authority declines to uphold the complaints.
Signed for and on behalf of the Authority
16 October 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Mrs O’Rourke’s Initial Complaint to Television New Zealand Ltd – 3 July 2003
2. TVNZ’s Response to the Initial Complaint – 14 July 2003
3. Mrs O’Rourke’s Formal Complaint to Television New Zealand – 18 July 2003
2. TVNZ’s Response to the Formal Complaint – 31 July 2003
3. Mrs O’Rourke’s Referral to the Broadcasting Standards Authority – 7 August 2003
4. TVNZ’s Response to the Authority – 15 August 2003
5. Mrs O’Rourke’s Final Comment – 25 August 2003