O'Sullivan and Television New Zealand Ltd - 2008-133
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Mark O'Sullivan
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – item reported allegations by several caregivers that they had been instructed to "assist" clients with masturbation and sex toys – allegedly in breach of children's interests
Standard 9 (children's interests) – adult nature of item clearly signposted – subject matter handled discreetly and sensitively – unsupervised child viewers unlikely to be watching – not upheld
This headnote does not form part of the decision.
 An item on Close Up, broadcast on TV One at 7pm on Tuesday 21 October 2008, was announced at the beginning of the programme as follows:
Tonight, an adult subject, we advise discretion. There are allegations tonight that caregivers of the intellectually disabled are being given explicit training to help clients reach sexual satisfaction. We hear from those workers who say they were demeaned and disgusted.
 The Close Up host then introduced the item, saying:
Are those caring for the intellectually and physically disabled being asked to help clients achieve sexual satisfaction? Tonight, a subject that involves mature content and that may not be suitable for children, and we warn you of that now. It involves a number of women, all previously caregivers in Nelson, who claim their former employer, NZ Care, has been running seminars with sex toys, showing staff how to help clients masturbate...
 A Close Up reporter interviewed three of those women, who described the courses to which their employer allegedly sent them, and their objections to the courses. Following that segment, the host conducted a live studio interview with the General Manager of NZ Care and the Chief Advisor of Public Health to the Ministry of Health.
 Mark O'Sullivan made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme breached broadcasting standards. He said it "contained material of an explicit sexual nature that was televised at a time when many children may likely have been viewing". Mr O'Sullivan considered that the use of warnings did not excuse the broadcast of "such sexually explicit material" in a 7pm timeslot. The story was inappropriate for broadcast at that time, he said, and "may have caused injury to the sensibilities of young children".
 TVNZ assessed the complaint under Standard 9 of the Free-to-Air Television Code of Broadcasting Practice, which provides:
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.
Broadcaster's Response to the Complainant
 The broadcaster emphasised that Close Up was a current affairs programme targeted at an adult audience. It noted that the Authority has said on several occasions that it "believes that children of a vulnerable age are unlikely to watch the news unattended", in other words, there was an expectation that children would watch this type of programme with an adult (Decision Nos. 2000-033, 2006-125 and 2007-115). Regardless, it considered that the item would not have unnecessarily alarmed or disturbed supervised child viewers.
 TVNZ maintained that the adult nature of the item was clearly communicated at the programme's outset, both in the host's opening comments and the item’s introduction.
 The broadcaster argued that these warnings gave parents ample opportunity to decide whether they wished their children to watch the item. Further, the sexual material included in the item was not explicit, it said. The item included verbal references to masturbation and sex aids, which were acceptable for screening in a current affairs programme aimed at adults.
 TVNZ considered that the interests of child viewers were adequately considered, particularly given the verbal warnings both at the beginning of Close Up and in the introduction for the item. The introduction made it clear that the upcoming item dealt with an issue involving sexual material, which gave parents enough time to exercise discretion with regard to their children’s viewing.
 The broadcaster therefore declined to uphold the complaint.
Referral to the Authority
 Dissatisfied with TVNZ's response, Mr O'Sullivan referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He objected to TVNZ's argument that there was a verbal warning given prior to the item. Mr O'Sullivan considered that many parents trust broadcasters to not screen material likely to be offensive to children before 8.30pm, and therefore allow their children to watch television unsupervised up until that time of night. He reiterated his argument that the Close Up item "could have caused injury to the sensibilities of young children".
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 At the outset, the Authority notes that Close Up is an unclassified current affairs programme which often explores subjects that may be unsuitable for children. It is also of the view that Close Up is not likely to appeal to unsupervised child viewers.
 In this case, the Authority considers that the adult nature of the item was clearly signposted twice by the programme's host, both in his introduction for the programme, and at the beginning of the item, as follows:
Tonight, an adult subject, we advise discretion.
Tonight, a subject that involves mature content and that may not be suitable for children, and we warn you of that now.
 These verbal warnings gave parents sufficient opportunity to exercise discretion with regard to their children's viewing.
 Further, the Authority disagrees with the complainant that the programme's content was "explicit". While the report discussed allegations of a sexual nature, the Authority considers that the subject matter was handled with care and with due regard for the time of screening. The item did not contain any salacious or gratuitous details and its subject matter was presented in an inexplicit and matter-of-fact manner, such that it would have gone over the heads of many child viewers.
 Accordingly, the Authority is satisfied that the broadcaster sufficiently considered the interests of child viewers in broadcasting this item on Close Up at 7pm. It declines to uphold the Standard 9 (children’s interests) complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
3 March 2009
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Mark O'Sullivan's formal complaint – 22 October 2008
2. TVNZ's response to the complaint – 18 November 2008
3. Mr O'Sullivan's referral to the Authority – 30 November 2008
4. TVNZ's response to the Authority – 12 December 2008