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 the frequent use of ‘fuck’ (and variations) during A Life on the Road breached the good taste and decency standard. The episode featured Brian Johnson of AC/DC talking to Lars Ulrich of Metallica about touring in the early 90s, along with footage from the tours and interviews with Metallica crew and fans. It was broadcast at 12pm with a ‘PGL’ rating (Parental Guidance; language may offend). The Authority found this did not provide sufficient reliable information to signpost the level and frequency of language in the programme and did not give the audience an adequate opportunity to exercise choice and control – meaning they were more likely to be surprised and offended by the content. The Authority found an ‘M’ rating and more detailed onscreen warning, for example for ‘frequent coarse language’, would have been more appropriate for the content and more consistent with the requirements of the Code.

Upheld: Good Taste and Decency

No Order

The broadcast

[1]  A Life on the Road is a series in which Brian Johnson, the frontman of band AC/DC, meets a number of his musical peers to discuss life on tour and performing live in front of sell-out crowds. In an episode broadcast at 12pm on Friday 18 September 2020 on Prime, Brian talked to Lars Ulrich of Metallica about touring in the early 1990s. The broadcast included footage from the tours and interviews with Metallica crew and fans.

[2]  The word ‘fuck’ and variations of ‘fuck’ were used more than 25 times throughout the one-hour broadcast. Examples include:

• ‘…we're in heaven getting a chance to be close to you guys and watching you every night for fucking six weeks’. (Lars Ulrich about touring with AC/DC)
• ‘…you’re just fucking living the dream’. (Lars Ulrich)
• ‘…they were the band that combined the groove and grit of Motorhead with the punk, ferocity and fuck-you-ness’. (Fan describing Metallica)
• ‘…San Di-fucking-ego, can you fucking hear me, fuck yeah, we got fucking two nights here, hey look it’s fucking Kirk. Hey San Diego how the fuck are you… ah fuck’. (Metallica band members greeting a crowd)
• ‘…nobody’s done this before. Fuck it. We will’. (Metallica fan)
• ‘…okay we’re back in ten minutes. Ten minutes? Fuck you’. (Metallica crew and band member preparing).

[3]  The episode carried the rating ‘PGL’ (PG – Parental Guidance; with an audience advisory label ‘L’ – language may offend). This rating was displayed onscreen before the programme and after each ad break. The programme was also preceded by an onscreen warning:

This programme is rated PGL, and contains language that may offend some viewers. Parental guidance is recommended for younger viewers.

The complaint

[4]  Michael Roberts complained that the programme breached the good taste and decency standard. He said in ‘a matter of 20 minutes’ he heard ‘the f word used about six times’. He commented the language ‘[kept] coming thick and fast’ and ‘the programme ran for one hour, I hate to think what was in the second half of the show’.

The broadcaster’s response

[5]  Sky did not uphold the complaint, saying it had reviewed the content against the good taste and decency standard (including guidelines on the importance of context and broadcasters taking adequate steps to inform the audience of the nature of the content). It concluded the content did not reach the threshold necessary to find a breach of the standard, in particular because:

• ‘The programme was classified PGL, meaning “Parental Guidance: 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” and [included a] warning that “Language may offend some viewers”.’
• The classification information was provided in the Electronic Program Guide, at the beginning of the episode and after each ad break.
• A visual warning was also shown on screen at the start of the episode (quoted in paragraph [3] above).

[6]  Sky nevertheless apologised to the complainant ‘for any offence caused… as a result of this content’.

The standard

[7]  The good taste and decency standard¹ states current norms of good taste and decency should be maintained, consistent with the context of the programme. The standard is intended to protect audiences from content likely to cause widespread undue offence or distress, or undermine widely shared community standards.²

Our analysis

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

[9]  The right to freedom of expression is an important right in a democracy and it is our starting point when we consider a complaint. It includes both the broadcaster’s right to offer a range of information and programmes, and the audience’s right to receive those. Our task is to weigh the right to freedom of expression against the harm potentially caused by the broadcast. We may only intervene and uphold a complaint where that places a reasonable and justified limit on the right to freedom of expression, in light of the potential harm. Overall, we have found in this case the potential harm under the good taste and decency standard warrants regulatory intervention and limiting the right to freedom of expression.

The language

[10]  In considering the potential harm, we first looked at the language that was used in the programme and how that compared with other broadcasts previously considered in Authority decisions.

[11]  The good taste and decency standard aims to reflect ‘current norms’ of good taste and decency, and ‘widely shared community standards’. In assessing what these are, we are guided partly by research we conduct with members of the public to gauge community attitudes. In the Authority’s 2018 Language That May Offend in Broadcasting research, ‘fuck’ ranked 13th out of 31 words tested for their level of offensiveness among the surveyed members of the public.³ Of those surveyed, 39% of respondents found the word ‘fuck’ unacceptable in all scenarios (when asked whether its acceptability ‘depends on the scenario’).⁴

[12]  In a previous decision, the Authority upheld a complaint about ‘several instances’ of the word ‘fuck’ used in a programme rated PGR, shown at 7.30pm, with no warning for language.⁵ The Authority did not, however, uphold complaints about the use of the word ‘fuck’ once during a programme classified ‘M’,⁶ and about its use four times during a programme classified ‘ML’ and accompanied by a warning for coarse language.⁷

[13]  In this episode of A Life on the Road, ‘fuck’ and variations of ‘fuck’ were used more than 25 times across the one-hour programme.

The importance of context

[14]  More broadly, the context in which the content (in this case, the language) occurred and the wider context of the broadcast are highly relevant when assessing the level of potential harm and whether the broadcast breached this standard.⁸ We recognised there were a number of ‘mitigating’ contextual factors in this case in terms of what the audience might reasonably expect from the programme, and the target and likely audience. These include:

• A Life on the Road is a documentary series featuring renowned rock and roll stars, with an adult target audience. Its general format and style were unlikely to appeal to most children.
• The episode was focused on the renowned band Metallica, an American heavy metal band. This style of music is known to be ‘loud and aggressive’⁹ and as being likely to contain some potentially offensive language.
• The episode was broadcast at 12pm on a school day, meaning children were unlikely to be watching (whether or not the programme appealed to them).
• Programmes with a classification up to ‘M’ (Mature Audience: Suitable for Mature Audiences 16 years and over) are permitted to screen between 9am and 3pm on weekdays (except during school or public holidays); in other words, 12pm on a weekday during the school term is not considered children’s typical viewing time.

Audience choice and control

[15]  However, an equally important feature of the good taste and decency standard – and the Code more broadly – is that it recognises audiences are less likely to be offended when ‘they know what they’re getting’ and they are able to exercise ‘choice and control’.¹⁰ Where broadcasters take effective steps to inform their audiences of the nature of their programmes, and enable viewers to regulate their own and their children’s viewing behaviour, they are less likely to breach this standard.¹¹

[16]  The key question in our view, was whether the programme’s ‘PG’ classification, along with the ‘L’ warning label for language and the pre-broadcast onscreen warning, were sufficient to signpost and prepare viewers for the programme’s content and enable them to make an informed viewing choice.

[17]  Considering first whether the ‘PG’ classification was correct, or whether the programme warranted a higher rating, we note the ‘PG’ and ‘M’ classifications are defined as follows:¹²

PG – Parental Guidance: Parental guidance recommended for younger viewers.

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.

PG programmes may be screened at any time.

M – Mature Audiences: Suitable for Mature Audiences 16 years and over.

The M classification means the programme might contain violence, sexual material, offensive language, adult themes, nudity, or other content that some children and parents find challenging. The programme may contain content with a moderate impact and themes that require a mature outlook.

On free-to-air television, M programmes may be screened between 9am and 3pm on weekdays (except during school and public holidays, as designated by the Ministry of Education) and after 7.30pm until 5am.

[18]  In our view the level of language in this programme (as well as its content more generally, which alluded to mature themes) was more consistent with what is envisaged by the definition of the ‘M’ classification.

[19]  We also found the warning for ‘language that may offend some viewers’, combined with the PG rating, was not sufficient to prepare viewer expectations for the level and repetitiveness of language in the programme.

[20]  Viewers would likely have anticipated some language given the nature of the programme, the onscreen warning and the ‘L’ advisory label. But they would not expect the frequency of coarse language and instances of the ‘f word’ that occurred, from a PG programme. This was arguably made worse by the fact the first 11-12 minutes did not contain any instances of ‘fuck’, meaning viewers were more likely to be surprised – and offended – by the later content.

[21]  Therefore we found overall the broadcaster did not provide adequate, reliable information to enable viewers to exercise choice and control or to make an informed viewing choice. The content was likely to go beyond reasonable audience expectations given the wider context of the broadcast, meaning viewers were more likely to be offended by it. An ‘M’ rating and a stronger onscreen warning – for example, for ‘frequent coarse language’ – would have been more consistent with the content and the requirements of the Code. This is supported by the Authority’s past decisions referred to above (paragraph [12]). We have not previously considered this level of coarse language in a PG-rated programme and we think plainly it went beyond most viewers’ expectations of what is acceptable for ‘PG’.

Conclusion: Weighing freedom of expression against harm

[22]  For these reasons, upholding the good taste and decency complaint places a reasonable and justified limit on the broadcaster’s right to freedom of expression. We note the broadcast could still have taken place in the same timeslot with an ‘M’ rating and a stronger warning – as ‘M’ programmes may be broadcast during the day on weekdays when children are at school. However this would give more accurate information to viewers to enable them to regulate their own viewing and exercise discretion in relation to any children who happened to be present.

For the above reasons the Authority upholds the complaint that the broadcast by SKY Network Television Ltd of A Life on the Road on 18 September 2020 breached Standard 1 of the Free-to-Air Television Code of Broadcasting Practice.

[23]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989.

[24]  We do not intend to do so on this occasion. We consider the publication of this decision is sufficient to publicly notify the breach of the good taste and decency standard, and to censure the broadcaster. Our decision also gives clear guidance to SKY and to all broadcasters on the requirements of the standards with respect to classifying, and giving appropriate audience advisories, for this level of potentially offensive language.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

13 May 2021    

Appendix

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

1  Michael Roberts’ formal complaint – 20 September 2020

2  SKY’s response to the complaint – 16 October 2020

3  Mr Roberts’ referral to the Authority – 2 November 2020

4  SKY’s confirmation of no further comment – 25 November 2020

¹ Standard 1 of the Free-to-Air Television Code of Broadcasting Practice
² Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
³ Broadcasting Standards Authority (June 2108) “Language That May Offend in Broadcasting” <bsa.govt.nz>, page 6
⁴ As above
⁵ Francis and Sky Network Television, Decision No. 2019-088
⁶ Francis and Television New Zealand Ltd, Decision No. 2020-055
⁷ Bennett and Television New Zealand, Decision No. 2020-091
⁸ Guideline 1a
⁹ Richard Havers “Heavy Metal Thunder: The Origins Of Heavy Metal” udiscovermusic. (online ed 27 March 2020)
¹⁰ Choice and Control, Broadcasting Standards in New Zealand Codebook, page 7
¹¹ Guideline 1b
¹² Definitions, Broadcasting Standards in New Zealand Codebook, page 9. Also see guideline 2a to Standard 2 – Programme Information, at page 35.