BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.]

During The Paul Henry Show, Mr Henry read out a fan’s letter about her ‘lactating boobies’ and made sexually suggestive remarks about her. Later, he used the word ‘fucked’, and during a live cross a woman burst in front of the camera and said, ‘West side, fuck her in the pussy’. The Authority did not uphold the complaint that these comments were unsuitable for broadcast. Taking into account relevant contextual factors, including the broadcaster’s limited control over live content, the material did not reach the high threshold necessary to breach standards of good taste and decency.

Not Upheld: Good Taste and Decency, Responsible Programming

Introduction        

[1]  During The Paul Henry Show, Mr Henry read out a fan’s letter about her ‘lactating boobies’ and made sexually suggestive remarks about her. Later in the programme he used the word ‘fucked’. During a live cross, a woman burst in front of the camera and said ‘West side, fuck her in the pussy’. The episode was broadcast on TV3 at 10.30pm on 4 June 2014.

[2]  Bernard O’Shaughnessy complained that Mr Henry made ‘crude’, ‘unnecessary’ and ‘sexist’ remarks, and instigated the actions of the woman in the live cross.

[3]  The issue is whether the broadcast breached the good taste and decency and responsible programming standards, 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 broadcast threaten current norms of good taste and decency?

[5]  The good taste and decency standard (Standard 1) is primarily aimed at broadcasts containing sexual material, nudity, coarse language or violence.¹The 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]  Mr O’Shaughnessy complained about three aspects of the broadcast:

• Mr Henry reading the fan’s letter and his remarks about the fan
• Mr Henry’s language
• the comment made by the woman unexpectedly during the live cross.

[7]  The complainant argued that Mr Henry should be fined and ordered to apologise to viewers and the ‘women involved’.

Mr Henry reading the fan’s letter and his remarks about that fan

[8]  Mr Henry talked about ‘bumping into umpteen fans’ while he was on holiday, including a woman he described as ‘quite attractive… in a sort of mature kind of way’. He  then read out a letter from that fan, including the following extracts:

Dear Mr Henry. It was such a pleasure to meet you today… so excited was I that my boobies started lactating… and I know how much you love boobies, Paul. Being a breastfeeding mother, lactating boobies are not entirely uncommon. What was somewhat unusual is that you were the catalyst in this instance…

[9]  A photograph of Mr Henry and the fan (enclosed with the letter) was shown onscreen, as he remarked to his co-presenter, ‘When I saw this woman here, do you know what I thought…?’ His co-presenter joked sarcastically, ‘Do I really want to know, do I?’ Mr Henry continued, ‘Possibly not. I thought, yeah, I would’. At the end of the segment he said, ‘I am constantly surrounded by lactating women’, and, ‘Seriously, I would, multiple times’.

[10]  The complainant said that Mr Henry read out the fan’s letter ‘with glee’ and made comments that were ‘rude, disgusting and sexist’.

[11]  MediaWorks said that to find a breach of this standard the material had to be unacceptable to a significant number of viewers in context, which included the time of broadcast, classification, use of any warnings, and audience expectations. It described The Paul Henry Show as ‘a live news programme that incorporates an informal style that allows for arts and entertainment stories, live giveaways and ad-libbing by the host’. It said the 10.30pm timeslot has traditionally been occupied by news programmes that sometimes contain adult content, including strong language and sexual material. It said the fan’s letter was written with a ‘degree of humour and was read out with that intention’, and it did not contain any explicit material.

[12]  The fan’s letter and Mr Henry’s decision to read the letter were clearly intended to be humorous. While the subject matter of the letter, and specifically Mr Henry’s numerous references to ‘lactating boobies’ was somewhat juvenile and crude, it did not cross the threshold of acceptability when broadcast at 10.30pm.

[13]  Likewise, the sexual innuendo in Mr Henry’s comments about the fan, while juvenile and somewhat chauvinist, did not reach a level requiring our intervention, given the late time of broadcast, that the programme is targeted at adults, and Mr Henry’s well-known style of presentation and humour.

Mr Henry’s language

[14]  During a segment called ‘9 in 10’ a contestant was asked via a live cross in Auckland to name nine capital cities in 10 seconds. The contestant only got two answers correct, and Mr Henry commented:

You got two. You know what – [whispering to his co-presenter] I was going to say ‘fucked her up’ – what went wrong there for you… [our emphasis]

[15]  In his referral, the complainant said that Mr Henry ‘always tries to use obscene language to push the standards down’.

[16]  The broadcaster accepted that Mr Henry whispered an expletive under his breath which ‘candidly highlighted his more acceptable choice of language by joking about what he was going to say’. It considered that ‘most of the late night audience would not have found this offensive, even if they did not find it funny’.

[17]  In our view, Mr Henry’s choice of language was deliberate and gratuitous. However, given relevant contextual factors, and specifically that the programme is broadcast two hours after the Adults Only watershed, we find that it did not breach Standard 1.

Comment made by woman during live cross

[18]  During the ‘9 in 10’ segment, a random woman burst in front of the camera and said, ‘West side, fuck her in the pussy’. Mr Henry commented, ‘What was that? That was a rude lady. We will delete that before we play the programme.’

[19]  The complainant argued that Mr Henry’s remarks were the catalyst for the comment made by this woman, whom he referred to as the contestant’s ‘friend’.

[20]  MediaWorks accepted that the woman ‘swore using sexually explicit language’ and that this was ‘not ideal’. However, it maintained that the programme was live with no delay faculty, so it had no opportunity to remove the comment. It noted that there was a ‘worldwide trend’ for members of the public to interrupt live broadcasts with this particular phrase. The broadcaster argued that most viewers would not have been offended by the language, given the late timeslot, and the programme’s adult target audience.

[21]  We are satisfied that the actions of the woman were unsolicited and that Mr Henry did not make any remarks that would have influenced her in any way or provoked her behaviour. By way of context, the behaviour of this woman is colloquially described as ‘videobombing’ which involves individuals deliberately inserting themselves into someone else’s video unexpectedly as a type of practical joke. While not determinative, but certainly relevant to providing context, we accept MediaWorks’ assertion that this particular phrase has been used to interrupt news broadcasts worldwide. We acknowledge that the woman’s comment was sexually explicit and obscene; however, as the programme is broadcast live, and according to the broadcaster there is no option to delay, there was no opportunity for the broadcaster to remove or obscure the comment. In these circumstances, we do not think MediaWorks should be held accountable for the unsolicited actions of a random bystander.

[22]  We do however wish to point out that live broadcasts are inherently vulnerable to this type of interference, and that it is therefore incumbent on broadcasters to put processes in place to ensure an immediate and appropriate response is provided in the circumstances. Here, Mr Henry joked about editing the comment out, rather than offering a genuine apology or sufficiently appreciating the offensiveness of the comment. We expect that by putting processes in place, broadcasters will act more appropriately if faced with a similar occurrence in future.

General comments

[23]  While we find that the content of this particular episode, broadcast in this timeslot, did not reach the high threshold necessary to find a breach of the good taste and decency standard, we wish to make some general comments, in particular because we think the content of this programme is becoming increasingly challenging and close to the line of acceptability. The Paul Henry Show has a magazine-style format which includes news and current affairs elements mixed with comedy and entertainment. News and current affairs programmes are not required to be classified. However, we consider that the content of this show, and the incremental pushing of boundaries, makes it more akin to a late-night comedy show. We suggest the broadcaster consider including a pre-broadcast warning for offensive language and sexual content. This way, viewers would know what they were getting (meaning content would be less likely to breach standards), without unduly hindering the broadcaster’s, or the audience’s, right to freedom of expression.

Did the item breach the responsible programme standard?

[24]  The responsible programming standard (Standard 8) requires broadcasters to ensure that programmes are correctly classified and screened in an appropriate time-band.

[25]  As it currently stands, The Paul Henry Show is an unclassified current affairs programme broadcast during the Adults Only time-band. We have found under the good taste and decency standard that the episode did not exceed audience expectations of content broadcast at 10.30pm.

[26]  We therefore decline to uphold the Standard 8 complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair

31 October 2014

Appendix

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

1                 Bernard O’Shaughnessy’s formal complaint – 10 June 2014

2                 MediaWorks’ response to the complaint – 8 July 2014

3                 Mr O’Shaughnessy’s referral to the Authority – 21 July 2014

4                 MediaWorks’ responses to the Authority – 19 August 2014

5                 Mr O’Shaughnessy’s final comment – 25 August 2014

6                 MediaWorks’ final comment – 10 September 2014

¹Turner and Television New Zealand Ltd, Decision No. 2008-112

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