BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has upheld a complaint that an episode of wildlife documentary series Our Big Blue Backyard, classified ‘G’ and broadcast on TVNZ 1 at 7.30pm, breached the children’s interests standard. This was on the basis the episode should have instead been rated ‘PG’, to signpost to parents or caregivers that supervision was recommended for younger viewers. The episode featured a scene where a female bottlenose dolphin was pursued, trapped and mated with by a group of male bottlenose dolphins. The Authority found the scene went beyond audience expectations of the programme’s ‘G’ rating as it featured mature themes, graphic images, and was dramatised in such a way that it may have been alarming or distressing for any children watching, and required adult supervision and guidance.

Upheld: Children’s Interests

No Order

The broadcast

[1]  An episode of Our Big Blue Backyard, a wildlife documentary series exploring Aotearoa New Zealand’s marine environments, aired at 7.30pm on 31 January 2023, on TVNZ 1. The episode focused on wildlife living around Manawatāwhi | Three Kings Islands, and was rated ‘G’ (General: Approved for general viewing).

[2]  Parts of the episode were focused on a pod of bottlenose dolphins who permanently resided around Manawatāwhi. The narrator noted that while they had an abundant supply of food there, ‘What they lack is mixing with other dolphins. To ensure their long-term survival, they must avoid in-breeding at all costs. For a family that chooses to live in isolation, that poses a challenge.’

[3]  When a pod of around 40 oceanic bottlenose dolphins arrived at Manawatāwhi, the narrator noted, ‘These vagrant wanderers could introduce some critical DNA into the Manawatāwhi dolphin gene pool. But the process of doing so could turn hostile, and terrorise the locals.’ The narrator stated:

The pods meet. They're trying out the personalised calls bottlenose dolphins have for each other, to identify whether they've met before. There's a hint of tension in this greeting, generated by an aggressive gang of young males in the oceanic pod. Their bodies are decorated with scars, from teeth rakes inflicted by rivals they've encountered. Body bumping like this can be a friendly gesture. But if the bump becomes too rough, it's intimidation.

…

The pods continue to suss each other out. One of the battle-scarred oceanic males pairs up with one of the local females, and stays with her. This could be the opportunity to widen the gene pool. They're getting to know each other, when another male joins them, and then another. Soon she's followed by a crowd of eager suitors, all who'd like to father her calf. One opportunist makes a move. The males often mate from beneath the female. It's always belly to belly. She tries to shake him by heading to the surface. But they're persistent. The rest of the pods keep their distance. She's trapped at the surface, and the males take turns. Once they've all mated with her, they leave her alone. Despite this seemingly brutal assault, she has the last say. She has an ingenious ability which allows her to control each male's entry. Subtle movements of her vagina during the act can direct sperm to either fertilise her egg, or into a special fold which is a dead end – basically, built-in birth control. If she has chosen one of these outsiders, her calf will be born next summer.

[4]  Underwater footage showed this incident happening, and was accompanied by dramatic music which increased in volume and intensity. There were shots of the female dolphin being chased to the surface by a group of males, and the group thrashing at the surface. As the narrator stated, ‘She's trapped at the surface, and the males take turns,’ the footage showed the male dolphins swarming around the female with their genitalia visible, and at one point a male visibly entered the female. The footage was also accompanied by audio of dolphin cries.

The complaint

[5]  Chris Radford complained the broadcast breached the children’s interests standard of the Code of Broadcasting Standards in New Zealand on the basis that, while the programme was rated ‘G’, it ‘should have been rated at least PG and a warning should have been displayed prior to the program airing so that parents could choose whether or not to expose their young children to such content…’. The complainant added:

• ‘The general public has an expectation that nature documentaries contain depictions of animals eating other animals and often include depictions of courtship behaviour. However, there are situations when additional counselling is required from parents to explain animal behaviour to children when it is contrary to expected social norms amongst humans.’
• ‘This episode of Our Big Blue Backyard included footage of a large number of male dolphins having involuntary intercourse with a single female… While the behaviour may have been natural, it was still a kind of sexual violence inflicted upon the female dolphin.’
• ‘The type of mating behaviour observed was certainly unwanted by the female dolphin in the footage. The poor creature was trying to flee from the male dolphins. She may have the final say when it comes to conception, but it is clear that this is a situation where further counselling will be required for young children regarding the behaviour observed.’
• Many child viewers may have found this content deeply disturbing, and the programme should have been rated PG to indicate to parents that guidance and explanation may be required for children watching.
• ‘While I am happy to concede that animal behaviour should not be seen through the lens of human social norms, the purpose of ratings is to protect vulnerable viewers from being exposed to content that they may find disturbing. In the context of human social norms many viewers could and did find the content disturbing and further parental guidance was subsequently required as a result.’
• Whether a programme ‘is likely to be recorded and replayed or streamed at a time other than the one broadcast and whether the rating given the [programme] matches the content of the show is a factor that should be taken into account when determining the outcome of this complaint.’
• ‘I have seen plenty of nature documentaries with less disturbing content being given PG ratings including the BBC's Planet Earth series. I am not convinced that this particular episode of Big Blue Backyard should also not be rated PG and parents advised that guidance may be required.’

The broadcaster’s response

[6]  TVNZ did not uphold Radford’s complaint, considering the programme was correctly classified G and that it had adequately observed the interests of children. It added:

• ‘This is season three of the popular documentary series, so it is reasonable to assume viewers would be aware of the material which will be shown, including, sometimes, confronting facts of nature, including animal deaths.’
• ‘It screens on TVNZ 1, a channel aimed at an older demographic.’
• ‘It is commonplace to show animals being killed/eaten as well as mating and being born/hatched. It follows that it is not inappropriate to depict animals mating in G-rated programming, provided it is done so with appropriate context and care, as was the case in this episode of Our Big Blue Backyard.’
• As outlined in the broadcast, ‘the sexual encounter was likely of great importance to the long-term survival of the Manawatāwhi dolphins and is therefore of high relevance to the programme which focuses on fragile ecosystems and colonies around New Zealand.’ The footage ‘simply shows normal dolphin mating behaviour in the wild.’
• ‘The encounter was depicted in a manner suitable for a G-rated programme: it was factual, educational, and was not unduly dramatised.’
• ‘The encounter occurred in the final part of the hour-long programme and was specifically foreshadowed by the narrator, as outlined in the Programme. Viewers unfamiliar with the Our Big Backyard format were made aware of the type of material which would be shown and could make an informed viewing decision about whether they wished their child to see this material, before it was shown.’
• TVNZ did ‘not agree that it is appropriate to characterise the dolphin behaviour being discussed as “sexual violence”. Such an assessment reflects a judgement predicated on human sensibilities which, as above, we do not consider are an appropriate framework for understanding animal behaviour.’
• ‘The episode aired at 7.30pm, a time at which M-rated content can be aired.’ It was ‘preceded by Seven Sharp (live/unclassified, aimed at adults and is not viewed by a significant number of children) and followed by Your Body Uncovered (PGC with a written warning specifying It contains medical and surgical scenes that may not be suitable for a younger audience).’
• ‘…the viewing data for this episode of Our Big Blue Backyard shows that a very small proportion of viewers, approximately 1.6%, were aged 5-14.’

The standard

[7]  The children’s interests standard¹ requires broadcasters to ensure children can be protected from content that might adversely affect them.

[8]  Material likely to be considered under this standard includes violent or sexual content or themes, offensive language, social or domestic friction and material in which children or animals are humiliated or badly treated, where such material is outside audience expectations for the type of programme or the programme’s classification.²

[9]  The standard generally applies during children’s normally accepted viewing or listening times – usually up until 8.30pm.³ Under the standard, a ‘child’ is under the age of 14 years.⁴

Our analysis

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

[11]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the level of harm means limiting the right to freedom of expression is reasonable and justified.⁵

[12]  Context is an important consideration when assessing the alleged harm under this standard, including, where relevant, the programme’s classification and any audience advisory, the time of broadcast, the target and likely audience, audience expectations, the availability of filtering technology and whether it has been promoted by the broadcaster, the public interest in the broadcast and any factors that mitigate the likely harm to children, such as humour or educational benefit.⁶

[13]  We identified the following relevant contextual factors in this case:

• The programme screened at 7.30pm, with the scene at issue being in the last six minutes of the hour-long broadcast. This was during, but on the cusp of, children’s normally accepted viewing times (up to 8.30pm).
• The programme was classified ‘G’ – approved for general viewing.
• The programme was screened on TVNZ 1, which has an adult target audience.⁷
• The programme was about wildlife, and particularly sea creatures, living around Manawatāwhi. There was public interest in the programme, and the series as a whole, for its educational element in relation to Aotearoa New Zealand’s marine wildlife.
• The scene at issue featured a female dolphin attempting to flee a group of male dolphins who ultimately trapped and mated with her.
• The impression of a struggle was created by the thrashing of dolphin bodies at the surface.
• Audio of dolphin cries played while this was happening.
• In one of the shots, male dolphin genitalia was clearly visible, along with one male briefly entering the female.
• The music and descriptions used by the narrator (‘aggressive gang of young males,’ ‘battle-scarred oceanic males,’ ‘She’s trapped at the surface and the males take turns,’ ‘seemingly brutal assault’) created a tense and dramatic atmosphere.
• The narrator went on to explain how the female can control which male’s sperm would fertilise her egg.

[14]  Commentary to the standard acknowledges it is not possible or practicable for broadcasters to shield children from all potentially unsuitable content.⁸ The objective is to allow them to broadcast to a wide audience, while taking reasonable steps to provide parents and caregivers with adequate information about the nature of the programme, to enable them to exercise choice and control over their children’s viewing.

[15]  In this sense, responsibility for safe viewing is shared by broadcasters and parents/caregivers.⁹ Broadcasters provide audiences with a number of tools for this, such as parental locks, audience advisories, timebands, and relevant to this complaint, classifications on free-to-air TV.¹⁰ This is important as research we undertook with NZ On Air | Irirangi Te Motu into Children’s Media Use in 2020 found on-screen classifications a useful indicator for a child to decide if a programme was not for them, or if it contained excerpts requiring adult supervision.¹¹ Classifications were just as important for parents, caregivers and whānau, being one of the most well-known and widely used methods for selecting appropriate content.¹²

[16]  The key issue for the Authority was therefore whether this episode was appropriately classified. The complainant has argued the programme’s ‘G’ classification did not adequately reflect the programme’s content, and it should have instead been classified ‘PG’. The full description of these classifications as set out in the Code of Broadcasting Standards in New Zealand is:¹³

G – General: Approved for general viewing: | G – Arowhānui: Kua whakaaetia mō te mātakitaki a te katoa: 

Programmes which exclude material likely to be unsuitable for children. Programmes may not necessarily be designed for child viewers but should not contain material likely to alarm or distress them.

PG – Parental Guidance: Parental Guidance recommended for younger viewers: | PG – Tohutohu ā-Matua: E tūtohua te Tohutohu ā-Matua mō ngā kaimātakitaki tamariki ake:

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.

[17]  The Authority has previously found a programme’s G classification indicates to parents, caregivers and guardians/whānau that they can be confident in leaving children unsupervised in front of the television to watch the programme, and that there will be no content which will unduly disturb or upset children of any age.¹⁴

[18]  We acknowledge the broadcaster’s submission that wildlife documentaries inherently include confronting animal behaviour such as hunting, conflict, and mating – and that such behaviour should not be judged through a lens of human social norms. Nevertheless, in light of the contextual factors above, we found the content exceeded audience expectations of the episode’s ‘G’ classification and may have alarmed and distressed children watching. The key reasons were:

• The scene complained of, featuring a female dolphin being pursued and trapped by a group of male dolphins, could be particularly affecting for children.¹⁵ The sinister music, the language used by the narrator, and the audio of dolphin cries (which could readily have been interpreted as the distressed cries of the female) added dramatised tension to the scene.
• The scene also dealt with mature themes, being animal sexual behaviour, and included graphic images of this behaviour, and a technical description of the female dolphin’s ‘built-in birth control’.
• While the acts themselves may have been ‘acts of nature’ and potentially innocuous, the dramatised elements of the broadcast and the treatment of the footage created tension which may not have been inherent in the act itself.
• In this sense, even though earlier scenes signposted the topic of the dolphins’ mating and breeding challenges, the particular content and dramatic impact of the final scene were unexpected in our view and there was no pre-warning it may be distressing for younger viewers.

[19]  Our Children’s Media Use research identified animal harm or torture as one of the most common types of content that children found upsetting.¹⁶ We have previously considered complaints concerning animals feeding in their natural environments, or including footage of hunting (which is part of life in New Zealand communities) and considered such footage was unlikely to adversely affect children provided it does not depict undue cruelty.¹⁷ However, these findings were in the context of PGR or unclassified programmes; not G rated programmes.

[20]  While not necessarily unsuitable for child viewers (given the strong educational element), we concluded the themes and content in the final dolphin scene should have been subject to the guidance of a parent or an adult. The above factors in combination suggest whānau could not be confident in leaving their children unsupervised watching that scene.

[21]  Accordingly, we uphold the complaint under the children’s interests standard on the basis that the programme should have been rated ‘PG’ instead of ‘G’. An incorrect (lower) classification meant that parents and whānau were not given sufficient information to enable them to protect children from content that may adversely affect them. Whether or not this programme or adjacent programmes were aimed at children, or children were in fact watching (see broadcaster’s submissions at paragraph [6]), it remains the broadcaster’s responsibility to ensure programmes are appropriately classified based on their particular content.

[22]  In upholding the complaint, we are satisfied this does not unreasonably restrict freedom of expression, as we are not suggesting that the programme should not have been aired at all, or that it should have been aired at a different time. The programme clearly carried value and public interest. Our view is simply that it should have had a different classification to better inform audiences in making their viewing choices and exercising discretion.

[23]  Finally, we note the complainant’s submission that classifications provide useful information where the programme ‘is likely to be recorded and replayed or streamed at a time other than the one broadcast.’ While we agree with the sentiment, our jurisdiction is broadcast-specific; we assess complaints in the context of the particular broadcast at the time it was broadcast. This consideration is therefore outside of our jurisdiction.

For the above reasons the Authority upholds the complaint that the broadcast of Our Big Blue Backyard on 31 January 2023 by Television New Zealand Ltd breached Standard 2 (Children’s Interests) of the Code of Broadcasting Standards in New Zealand.

[24]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to make any order in this case. Publication of this decision provides sufficient remedy by giving guidance to TVNZ and other broadcasters and clarifying our expectations that wildlife documentaries must be appropriately classified, particularly during children’s normally accepted viewing times.

Signed for and on behalf of the Authority

Susie Staley
Chair
28 June 2023   

Appendix

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

1  Chris Radford’s formal complaint – 2 February 2023

2  TVNZ’s response to the complaint – 27 February 2023

3  Radford’s referral to the Authority – 28 February 2023

4  TVNZ’s further comments – 17 March 2023

5  Radford’s final comments – 23 March 2023

6  TVNZ’s final comments – 26 May 2023

¹ Standard 2, Code of Broadcasting Standards in New Zealand
² Guideline 2.2
³ Guideline 2.1
⁴ Standard 2, Code of Broadcasting Standards in New Zealand
⁵ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁶ Guideline 2.3
⁷ TVNZ ‘TVNZ 1’ (accessed 11 May 2023) <www.sales.tvnz.co.nz>
⁸ Commentary, Standard 2, Code of Broadcasting Standards in New Zealand at page 10
⁹ Choice and Control, Code of Broadcasting Standards in New Zealand at page 4
¹⁰ Guideline 1.4
¹¹ See Broadcasting Standards Authority | Te Mana Whanonga Kaipāho and NZ On Air | Irirangi Te Motu Children’s Media Use (June 2020) at page 87 finding 51% of children (aged 6-14) used on-screen classifications (of M, AO, 16, or 18,as the classifications then were), and 47% used on-screen warnings to understand when a television programme was not for them; and at page 88 where 51% of children reported a proper understanding of the PGR (as it then was) classification
¹² Along with cautionary warnings, see Television New Zealand Ltd and Broadcasting Standards Authority | Te Mana Whanonga Kaipāho Parental Guidance Survey (September 2017) at page 3
¹³ Guideline 1.4
¹⁴ Johns and Television New Zealand Ltd, Decision No. 2016-049, applied in Sta. Lucia and MediaWorks TV Ltd, Decision No. 2019-048 at [30]
¹⁵ Guideline 2.2
¹⁶ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho and NZ On Air | Irirangi Te Motu Children’s Media Use (June 2020) at pages 7, 85 and 90
¹⁷ See for example: Judge and Television New Zealand, Decision No. 2020-27 at [12] and [19] and Judge and Television New Zealand Ltd, Decision No. 2020-108 at [19]–[20] regarding hunting footage; and Irwin, Nelson & Robertson and Television New Zealand Ltd, Decision No. 2009-162 at [29]-[30] in the context of a nature documentary which included poor treatment of animals