Riwai-Couch and TVWorks Ltd - 2012-014
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Melanie Riwai-Couch
Channel/StationTV3 # 3
Complaint under section 8(1C) of the Broadcasting Act 1989
Underbelly: Razor – sex scene broadcast at 8.42pm – allegedly in breach of children’s interests standard
Standard 9 (children’s interests) – sex scene amounted to “strong adult material” broadcast close to the Adults Only watershed – broadcaster did not adequately consider children’s interests – upheld
This headnote does not form part of the decision.
 An episode of Underbelly: Razor was broadcast on TV3 at 8.30pm on 30 November 2011. At 8.42pm, a sex scene was shown, in which a woman was on top of a man in bed. Her breasts were briefly visible, and she could be heard moaning.
 The episode was preceded by the following visual and verbal warning:
This programme is rated Adults Only and is recommended for a mature audience. It contains violence that may disturb and language and sexual material which may offend some people.
 Melanie Riwai-Couch made a formal complaint to TVWorks Ltd, alleging that the “explicit sexual activity” broadcast close to the 8.30pm Adults Only watershed breached standards relating to children’s interests.
 Having not received a response within the 20 working day statutory timeframe, Ms Riwai-Couch referred her complaint to this Authority. Following her referral, TVWorks responded to her, upholding her complaint under Standard 9 (children’s interests). Because this response was not given within the required timeframe, we have assessed the complaint under the nominated standard, rather than assessing whether or not the action taken by the broadcaster in upholding the complaint was sufficient.1
 The issue therefore is whether the broadcast of the sex scene at approximately 8.40pm breached Standard 9 (children’s interests) of the Free-to-Air Television Code of Broadcasting Practice.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Nature of the programme and freedom of expression
 At the outset, we recognise the right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990, and acknowledge the importance of the values underlying that right. The right to free expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form. Any restriction on the right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5).
 Underbelly is a popular fictional drama series, which has now had numerous seasons depicting various infamous criminals and illegal operations. A number of standards in the Code recognise that the drama genre is an important form of speech, on which society places value.2 Any restriction on the broadcaster’s right to freedom of expression therefore requires an adequate justification.
 We express our reasons below for finding that, having due regard to the right to freedom of expression and the potential harm to viewers, the broadcast of the sex scene amounted to a breach of the children’s interests standard.
Did the broadcaster adequately consider 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. Guideline 9b to the standard states that when scheduling AO material to commence at 8.30pm, broadcasters should ensure that strong adult material is not shown soon after the watershed.
 The purpose of the children’s interests standard is to protect children from broadcasts which might adversely affect them.3 In the Authority’s 2006 publication Freedoms and Fetters, it was observed that:
...children are worthy of special protection. Whether about radio or television, the BSA’s decisions emphasise its strong expectation that material likely to be heard or seen by children should recognise their innocence and vulnerability. The television classification and watershed systems underpin this special protection.
 The Authority has previously considered sex scenes similar to the one complained about, and concluded that they amounted to “strong adult material” broadcast close to the AO watershed.4 In our view, and as accepted by the broadcaster, the sex scene in Underbelly was in the same category and should not have been broadcast while children could still have been watching. We agree with TVWorks’ categorisation of the scene as follows:
Given that the scene was a representation of a relatively brief but vigorous sexual encounter, and the soundtrack of the woman moaning featured above a soundtrack of rhythmic drums, we consider that on balance, the scene did just cross the line of acceptable material for that time of broadcast.
 We are satisfied that the potential harm caused by the broadcast of the sex scene, in terms of the objectives of Standard 9, outweighed the broadcaster’s right to freedom of expression on this occasion.
 We therefore uphold the complaint that the broadcaster failed to adequately consider children’s interests, in breach of Standard 9.
For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of Underbelly: Razor on 30 November 2011 breached Standard 9 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. As the broadcaster has acknowledged the breach and apologised, and breaches of this nature are now relatively infrequent,5 we are not inclined to make an order. The publication of this decision is sufficient in the circumstances to clarify our expectations in relation to strong adult material broadcast too soon after the AO watershed.
Signed for and on behalf of the Authority
1 May 2012
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Melanie Riwai-Couch’s formal complaint – 30 November 2011
2 Ms Riwai-Couch’s referral to the Authority – 22 January 2012
3 TVWorks’ response to the complaint – 24 January 2012
4 Ms Riwai-Couch’s confirmation of referral to the Authority – 2 February 2012
5 TVWorks’ response to the Authority – 29 February 2012
1See sections 8(1C) and 8(1B)(b)(ii) of the Broadcasting Act 1989.
2See, for example, guideline 6a to Standard 6 (fairness) and guideline 7a to Standard 7 (discrimination and denigration) of the Free-to-Air Television Code.
3E.g. Harrison and TVNZ, Decision No. 2008-066
5The Authority last upheld a complaint about the broadcast of a sex scene by TVWorks close to the watershed in December 2010: see Waters and TVWorks Ltd, Decision No. 2010-101.