BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint about the promo for Hustlers which was broadcast during the movie Minions. The promo did not breach the good taste and decency or children’s interests standards as it was consistent with the PG classification for Minions. Child viewers were unlikely to understand the adult themes, and the promo did not contain nudity or explicit sexual content.

Not Upheld: Good Taste and Decency, Children’s Interests

The broadcast

[1]  A promo for the movie Hustlers was shown at 7.17pm on Three during an ad break for the movie Minions. Minions is rated PG and Hustlers is rated 16. The promo was a montage of clips that included women dancing on poles, men watching and drinking in suits, men working in a Wall Street-style office, the dancers drinking with the men and credit cards being used.

[2]  A voice-over said ‘this whole country is rigged and it does not reward people who play by the rules’. The text ‘WALL STREET MUST PAY’ appeared full-screen; a woman said ‘those Wall Street guys stole from everybody and not one of these douchebags went to jail’. The text ‘THE POLE TAX’ appeared full-screen; the same woman said ‘you want them drunk enough to give you their credit card but sober enough to sign a cheque’. The text ‘INSPIRED BY A TRUE STORY’ appeared full-screen, and two women laughed, saying the men couldn’t call the cops, ‘and say what? I spent $5000 at a strip club, send help?’

The complaint and the broadcaster’s response

[3]  Thomas Quirke complained it was inappropriate to show this promo during Minions, raising the good taste and decency standard:

• The promo ‘contained mildly explicit content which really shouldn’t be shown during the ad break of a children’s movie’.
• ‘The promo was aired during a children’s movie “Minions”, which is a PG film’.
• Hustlers is rated 16 and ‘I would say it contained adult themes’.

[4]  Discovery did not uphold the complaint for the following reasons:

• ‘…we are confident that the promo was correctly classified and was suitable to air during Minions which is classified PG.’
• ‘While the Hustlers promo did feature brief shots of dancers, it did not feature any nudity, overtly sexual material or violence that exceeded the boundaries of the PG classification.’
• ‘Many of the promos that air during Minions are for programmes targeting adult viewers - which is a necessity given adults are the target audience for many of Three’s shows - but these were carefully reviewed by our classification team to ensure they comply with the expectations of the time slot.’
• The Hustlers promo did not contain material that ‘was likely to unduly disturb or offend most regular viewers including children subject to the guidance of a parent or other adult’.

[5]  In his referral to the Authority, Mr Quirke sought to also raise his complaint under the children’s interests standard. Discovery responded, ‘Mr Quirke had the opportunity to nominate the standard and did not select it’. It noted ‘If the Authority considers [the standard] was impliedly selected, we maintain that the promo did not contain any material likely to unduly disturb or cause harm to younger audience members subject to the guide of a parent or other adult’.

[6]  Pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider his complaint under the standard(s) raised in the original complaint to the broadcaster. The High Court has clarified that in certain circumstances:¹

…it is permissible [for the Authority] to fill gaps… or cross boundaries between Code standards…but only if these things can be done within the wording, reasonably interpreted, of the original complaint, and if a proper consideration of the complaint makes that approach reasonably necessary…

[7]  Accordingly, we considered whether the additional standard raised by Mr Quirke in his referral to us could be reasonably implied into the original complaint. We have determined it could be reasonably implied into the wording of Mr Quirke’s original complaint. Mr Quirke identified concerns about a type of harm which is unique to children, which is the focus of the children’s interests standard.² He clearly stated a concern about a promo shown ‘during the ad break of a children’s movie’, and this is properly addressed by a response under that standard.

The standards

[8]  The good taste and decency standard³ states current norms of good taste and decency should be maintained, consistent with the context of the programme and the wider context of the broadcast. The standard is intended to protect audiences from content likely to cause widespread undue offence or distress, or undermine widely shared community standards.⁴

[9]  The children’s interests standard⁵ requires broadcasters to ensure children are protected from broadcasts which might adversely affect them. Material likely to be considered under this standard includes violent content or themes, offensive language, social or domestic friction and dangerous, antisocial or illegal behaviour where such material is outside the expectations of the programme’s classification.⁶

Our analysis

[10]  We have watched the broadcast and read the correspondence listed in the Appendix.

[11]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified, in light of actual or potential harm caused.

[12]  The children’s interests standard requires promos for programmes to comply with the classification of the programme during which they screen. Extra care should be taken in scheduling promos in programmes specifically aimed at child viewers so that the themes and material shown in the promo are not inappropriate for child viewers.⁷

[13]  Minions is rated PG – Parental Guidance. This means parental guidance is recommended for younger viewers. It includes programmes containing material more suited for mature audiences but not necessarily unsuitable for child viewers when subject to the guidance of a parent or an adult.⁸

[14]  The question for us is whether the promo for Hustlers was consistent with the PG classification of Minions. We found it was, taking into account the following factors:

• The promo was 30 seconds long.
• It did not contain any nudity or explicit sexual content.
• The promo did not contain any sexual innuendo.⁹
• While it would be clear to an adult viewer the movie Hustlers was about strippers using their profession to take money from drunk ‘Wall Street guys’, this was unlikely to be understood by child viewers.
• We have previously found mild and inexplicit sexual references, and revealing clothing will not unduly disturb child viewers and are consistent with a G classification.¹⁰

[15]  We also used the above factors to consider whether the broadcast was likely to cause widespread undue offence under the good taste and decency standard, or any specific harm to child viewers. We are satisfied the broadcast was unlikely to cause harm at a level requiring regulatory intervention. The PG classification means broadcasters can expect parents or caregivers to be supervising children viewing such content. The promo for Hustlers was brief and would not unduly disturb supervised child viewers.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Acting Chair
27 October 2021    

Appendix

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

1  Thomas Quirke’s complaint to Discovery – 24 July 2021

2  Discovery’s decision on the complaint – 19 August 2021

3  Mr Quirke’s referral to the Authority – 19 August 2021

4  Discovery’s comments on the referral and the standards – 31 August 2021

5  Mr Quirke’s confirmation of no further comments – 1 September 2021

¹ See Attorney General of Samoa v TVWorks Limited, CIV-2011-485-1110 at [62]
² Commentary: Children’s Interests, Broadcasting Standards in New Zealand Codebook, page 13
³ Standard 1 of the Free-to-Air Television Code of Broadcasting Practice
⁴ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
⁵ Standard 3 of the Free-to-Air Television Code of Broadcasting Practice
⁶ Guideline 3b
⁷ Guideline 3i
⁸ Definitions, Broadcasting Standards in New Zealand Codebook, page 9
⁹ Compare with Eastman and Television New Zealand Ltd, Decision No. 2019-111, which was not upheld under the children’s interests standard, as the sexual innuendo was unlikely to be understood by child viewers.
¹⁰ See Sta. Lucia and MediaWorks TV Ltd, Decision No. 2019-048 at [33]