Painter and Taylor and Television New Zealand Ltd - 2009-155
- Peter Radich (Chair)
- Leigh Pearson
- Tapu Misa
- Mary Anne Shanahan
- Geoff Painter
- Martin Taylor
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – interview with actress Keisha Castle-Hughes and director Niki Caro about their new film The Vintner’s Luck – references to sex – showed scenes from the film of the main characters passionately kissing and the male character putting his head up the female’s skirt – allegedly in breach of good taste and decency and children’s interests
Standard 9 (children’s interests) – sex scene was gratuitous in a current affairs programme at 7pm – unsuitable for children – upheld – language was vulgar slang unexpected in this type of programme – borderline but not upheld
Standard 1 (good taste and decency) – sex scene was not sufficiently discreet for PGR timeslot – upheld – language borderline but acceptable – not upheld
This headnote does not form part of the decision.
 On Close Up, broadcast on TV One at 7pm on Wednesday 4 November 2009, a reporter interviewed actress Keisha Castle-Hughes and director Niki Caro about their new film, The Vintner’s Luck. The Close Up presenter introduced the story, saying:
It’s a far cry from her first movie – she was but a slip of a girl when we first saw her in Whale Rider. But Keisha Castle-Hughes is all woman now, with a movie role to prove it. She’s paired up again with Whale Rider director Niki Caro to make [The] Vintner’s Luck, the best-selling Kiwi novel by Elizabeth Knox. It’s all about wine and angels and passion, so yes, there’s more than a little sauce in it. Tim Wilson caught up with Niki Caro and an all-grown-up Keisha Castle-Hughes.
 At the beginning of the item, a scene from the film was shown in which the two main characters, Sobran and Celeste were passionately kissing in a vineyard. Both characters were fully clothed, but Sobran put his head under Celeste’s dress for some time.
 In her interview, Ms Castle-Hughes offered the view that the film was very passionate and contained a lot of sexual activity, although it had been executed in an “elegant and tasteful” way. While interviewing Ms Caro, the reporter noted that the movie was filmed and set in France, “but essentially it’s a good old Kiwi film about drinking and rooting”.
 Geoff Painter and Martin Taylor made formal complaints to Television New Zealand Ltd, the broadcaster.
 Mr Painter considered that, during family viewing time, the language used by the reporter who conducted the interviews was “objectionable and totally unnecessary”.
 Mr Taylor alleged that the programme showed “a man seducing a girl (kissing her boobs) and he eventually ended up with his head under her dress for quite some time”. He considered that this left little to the imagination and questioned whether it was appropriate for 7pm when children were watching.
 TVNZ assessed the complaints under Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice, which provide:
Standard 1 Good Taste and Decency
Broadcasters should observe standards of good taste and decency.
Standard 9 Children’s Interests
During children’s normally accepted viewing times (see Appendix 1), broadcasters should consider the interests of child viewers.
Broadcaster's Response to the Complainants
 TVNZ submitted that to constitute a breach of Standard 1 the broadcast material must be unacceptable in the context in which it is shown, including the programme’s classification, time of broadcast, the intended audience and any warnings used.
 The broadcaster noted that on this occasion, Close Up was screened during PGR time and aimed at an adult audience. It asserted that the Authority had previously stated that “children of a vulnerable age are unlikely to watch the news unattended”. TVNZ pointed out that PGR programmes contained material more suited for mature audiences but not necessarily unsuitable for child viewers when subject to the guidance of an adult. Further, PGR programmes can be screened after 7pm.
 TVNZ argued that Close Up was a long running current affairs programme that often included material more suited for mature audiences, for example a woman abducted and raped by the Mongrel Mob, female gang members who were raped and beaten, New Zealand pig farming, and prostitutes in South Auckland. It was of the view that Close Up was “not considered a programme that children should be viewing unsupervised”.
 The broadcaster maintained that there was no swearing in the item and that it was unclear from Mr Painter’s complaint which language he considered to be unacceptable. It said that, “while the reporter used the term ‘drinking and rooting’ to describe the storyline of the movie this term was suitable in the context of a current affairs programme screening during PGR time”.
 With regard to Mr Taylor’s complaint, TVNZ argued that, while some sexual activity was shown, there was no nudity and “what was happening was not explained in any way”. The material was acceptable in PGR time, it said.
 TVNZ concluded that the broadcast did not breach Standard 1.
 Looking at Mr Taylor’s Standard 9 complaint, TVNZ reiterated that Close Up was aimed at an adult audience and screened during PGR time. It emphasised that the programme often included material that was for a mature audience and that it was not considered a programme that children should watch unsupervised.
 TVNZ argued that the footage from the film was acceptable in context, as the item discussed how Ms Castle-Hughes was “all grown up”. It said, “while it was clear that something sexual may have been happening in the scene [complained] about this was not shown or explained in any way”. The broadcaster maintained that the material was acceptable for a child to view in the company of an adult.
 Accordingly, TVNZ concluded that it had sufficiently considered children’s interests and it declined to uphold the Standard 9 complaint.
Referrals to the Authority
 Dissatisfied with the broadcaster’s response, Mr Painter and Mr Taylor referred their complaints to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 Mr Taylor noted that the film The Vintner’s Luck was rated M for mature audiences. He disagreed that “a raunchy scene” from an M-rated movie was acceptable for screening during PGR time. Mr Taylor maintained that broadcasting the scenes from the movie at 7pm breached Standard 1.
 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.
Standard 9 (children’s interests)
 Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm. Close Up was an unclassified current affairs programme screened at 7pm during the PGR time-band.
 The Authority has previously ruled that a scene implying oral sex was unsuitable for inclusion in a PGR programme at 7pm, because it was not sufficiently discreet for broadcast during children’s viewing times.1 In this case, we find that the inclusion of a sex scene in a news programme at 7pm was gratuitous and unsuitable for child viewers.
 Even though the sexual activity was implied, we consider that it would have been clear to older children what was taking place, and that any younger children who were watching would have questioned the man’s actions. Material such as this would be considered unsuitable in a PGR-rated entertainment programme, and we find that it is similarly unacceptable in an unclassified current affairs programme during the PGR time-band. The latitude extended to news and current affairs programmes is for material which, although sometimes disturbing to younger viewers, is justified because it is news and in the public interest.
 We accept that Close Up was not targeted at child viewers, and that any children watching would have been under the supervision of an adult. Nevertheless, we are satisfied that the broadcaster did not adequately consider the interests of child viewers in broadcasting the “sex scene” during Close Up at 7pm.
 Having reached this conclusion, we must now decide whether to uphold the complaint as a breach of Standard 9.
 We acknowledge that upholding the children’s interests complaint would place a limit on the broadcaster’s right to freedom of expression. In Harrison and TVNZ,2 the Authority determined that upholding a complaint under Standard 9 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 9 in the following terms:
In the Authority’s view, the purpose of the children’s interests standard is to protect children from broadcasts which might adversely affect them.
 With that in mind, we must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 9 on this occasion. We find that upholding a breach of the children’s interests standard would ensure that broadcasters take care to protect child viewers from unsuitable sexual material during their normally accepted viewing times. In this respect, upholding this part of the complaint clearly promotes the objective of Standard 9, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression.
 Accordingly, we uphold Mr Taylor’s complaint that the inclusion of the sex scene in the item breached Standard 9.
 Mr Painter complained that the language used in the item breached Standard 9. We consider that this primarily related to the reporter’s comment that The Vintner’s Luck was a film about “boozing and rooting”.
 A majority of the Authority (Peter Radich, Tapu Misa and Leigh Pearson) is of the view that “rooting” is vulgar slang and that Close Up’s audience would likely have found its use in a current affairs programme at 7pm to be surprising and out of place. However, we the majority consider that the reporter’s use of the word, although borderline, was not unsuitable for supervised child viewers within an unclassified current affairs programme during the PGR time-band. Accordingly, we find that the broadcaster adequately considered children’s interests and we decline to uphold Mr Painter’s complaint that the reporter’s language breached Standard 9.
 A minority of the Authority (Mary Anne Shanahan) is of the view that the use of the word “rooting” was gratuitous and unacceptable for a programme screened at 7pm during children’s viewing times, especially considering that it was the reporter who introduced the term. She would uphold the complaint that the language breached Standard 9.
Standard 1 (good taste and decency)
 When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:
Close Up was broadcast at 7pm in the PGR time-band
the item was not preceded by a warning
Close Up was an unclassified news and current affairs programme
the programme’s adult target audience.
 For the reasons outlined in paragraphs  to , we find that the sex scene was unacceptable for broadcast at 7pm during a PGR timeslot and therefore strayed beyond current norms of good taste and decency. We acknowledge that upholding this part of the Standard 1 complaint would place a limit on the broadcaster’s right to freedom of expression. In Turner and TVNZ,3 the Authority determined that upholding a complaint under Standard 1 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In our view, the primary objective of Standard 1 is to protect against the broadcast of sexual content, violent material, and language that exceeds current norms of good taste and decency in the context in which it was shown.
 We find that upholding a breach of the good taste and decency standard on this occasion would reinforce that broadcasters must take care to ensure that the broadcast of sexual material is justified by its context. In this respect, upholding this complaint clearly promotes the objective of Standard 1, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression. Accordingly, we uphold Mr Taylor’s complaint that the sex scene breached Standard 1.
 For the reasons outlined in paragraph , a majority of the Authority (Peter Radich, Tapu Misa and Leigh Pearson) declines to uphold Mr Painter’s complaint that the language used by the reporter breached Standard 1. A minority of the Authority (Mary Anne Shanahan) would uphold this part of the complaint for the reasons given in paragraph  above.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Close Up on 4 November 2009 breached Standards 9 and 1 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld Mr Taylor’s complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. We consider that this decision will serve as a reminder to broadcasters to exercise care when broadcasting sexual material in unclassified programmes during the PGR time-band. Accordingly, we are of the view that the publication of the decision is sufficient.
Signed for and on behalf of the Authority
27 April 2010
The following correspondence was received and considered by the Authority when it determined this complaint:
Geoff Painter’s complaint
1. Geoff Painter’s formal complaint – 5 November 2009
2. TVNZ’s response to the complaint – 1 December 2009
3. Mr Painter’s referral to the Authority – 3 December 2009
4. TVNZ’s response to the Authority – 3 February 2010
Martin Taylor's complaint
1. Martin Taylor’s formal complaint – 5 November 2009
2. TVNZ’s response to the complaint – 30 November 2009
3. Mr Taylor’s referral to the Authority – 24 December 2009
4. TVNZ’s response to the Authority – 3 February 2010
1See Cross and TVNZ, Decision No. 2008-059
2Decision No. 2008-066
3Decision No. 2008-112