BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Six Feet Under – male sex scene – sodomy – breach of good taste and decency
Findings
Standard 1 – contextual matters – no uphold

This headnote does not form part of the decision.

Summary

[1] Six Feet Under is a series about a family of undertakers, and is described by the broadcaster as "black comedy". An episode broadcast on 23 July 2002 at 9.35pm on TV One included a scene of two males having sex.

[2] N N Rodley complained to Television New Zealand Ltd, the broadcaster, that the scene was too graphic, and that he had "never seen two males copulating on TV."

[3] In declining to uphold the complaint, TVNZ said in context the scene did not breach current norms of good taste and decency.

[4] Dissatisfied with TVNZ’s response, Mr Rodley referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority declines to uphold the complaint.

Decision

[5] The members of the Authority have viewed a tape of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] Six Feet Under is a series about a family of undertakers, and is described by the broadcaster as "black comedy". An episode broadcast on 23 July 2002 at 9.35pm on TV One included a scene of two males having sex.

The Complaint

[7] Mr Rodley complained to Television New Zealand Ltd, the broadcaster, that the scene was too graphic, and that he had "never seen two males copulating on TV." He wrote:

The time of the showing, type of programme, the target audience, the use of warnings, and the programme’s classification do not in any way excuse or condone the graphic scene which is the subject of my complaint.

[8] Mr Rodley said if the scene had continued behind the curtain, it would have been acceptable. However, he had never viewed "anything so graphic as those two males ‘banging away’."

The Standards

[9] TVNZ assessed Mr Rodley’s complaint against Standard 1 and Guideline 1a of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 1 Good Taste and Decency

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.

Guideline

1a  Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme’s classification (see Appendix 1). The examples are not exhaustive.

The Broadcaster’s Response to the Complainant

[10] In declining to uphold the complaint, TVNZ first considered the storyline in the scene complained about. It explained that the segment was focussed on Federico’s jealously over his wife’s attention to his cousin Ramon, who was working on refurbishments in Federico’s home with another man. Frederico was concerned about leaving his wife in Ramon’s company. When he returned home one day he heard sexual noises behind a curtain and assumed his wife was being unfaithful. However, when he pulled the curtain back he found Ramon and the other man engaging in sex. Frederico expressed his disgust at the behaviour.

[11] TVNZ said that regular viewers of this series would recognise this segment as a "further sub-plot" to a major ongoing story-line of the series, which involved one of the main character’s struggle, Federico’s boss, with his sexuality.

[12] TVNZ argued that Six Feet Under has been "highly acclaimed around the world as a drama series of unusually high quality." TVNZ wrote:

It is TVNZ’s preference, particularly when high quality programming is involved, to show programmes as their creators (the directors and producers) intended them to be shown. That way the episodes retain integrity and are not marred by ugly cuts. However, on this occasion, the scene you saw was shortened by TVNZ’s censor to make it as brief as it could be. It was not possible to remove the scene altogether because to continue it behind the curtain would not have answered the question about who it was Ramon was having sex with.

[13] TVNZ advised that gay sex had been broadcast before, including on an earlier Six Feet Under episode, referring to Mr Rodley’s comment that he had "never seen two males copulating on TV before". In its view the scene complained about was shorter, and "no more explicit than many a heterosexual sex sequence."

[14] TVNZ continued:

In considering the contextual matters required under Guideline 1a the [complaints] committee noted that the programme was broadcast late at night (it does not start until more than an hour after the Adults Only watershed), a warning was attached drawing attention specifically to the sexual content and language, and the programme was classified AO (Adults Only) with the AO symbol appearing at the beginning of the programme and after each commercial break. In addition, the committee recognised that regular viewers of this series would have become accustomed to the twists and turns in a fascinating and unpredictable storyline and would not have found the sequence to which you refer out of character with the production overall.

[15] Dealing specifically with the scene complained about, TVNZ maintained that it was not gratuitous, "and would not have strayed beyond the expectations of the by now well established audience the series is attracting." TVNZ concluded that, taking into account the contextual matters stated above, the programme did not breach Standard 1.

The Referral to the Authority

[16] Dissatisfied with TVNZ’s response, Mr Rodley considered that TVNZ had failed to address the central point of his complaint, which was the graphic depiction of two men having sex. Mr Rodley considered the contextual factors referred to by TVNZ were not relevant.

[17] Mr Rodley also disagreed that the time of the broadcast (which started at 9.35pm) was "late at night", suggesting that 11.35pm may be more appropriate to describe late-night viewing. He advised he was a regular viewer of the series, and that he did not "stumble" across the scene by "accident". The complainant considered that TVNZ should have made a "short apology", and undertaken not to show such scenes in the future.

The Broadcaster’s Response to the Authority

[18] TVNZ reiterated the context of the scene, noting that the censor had shortened the scene. However it did not consider it possible to "remove it altogether without making the plot at that point incomprehensible."

[19] TVNZ submitted that scenes should be considered within context. It noted that Guideline 1a specifically requires broadcasters, in any assessment of good taste and decency, to consider "the context in which any language or behaviour occurs."

[20] TVNZ wrote:

We believe TVNZ acted properly in cutting the scene to its minimum duration, by attaching a warning at the beginning of the programme, by classifying the programme AO, and by not starting the programme until more than an hour after the ‘Adults Only’ watershed. We also suggest that the ‘type of programme’ and ‘the target audience’ are significant contextual matters to be taken into account.

The Complainant’s Final Comment

[21] Mr Rodley disagreed with TVNZ that it was necessary to show the scene so that the plot remained intelligible. He wrote "if the plot at that point is spoilt so be it."

[22] Mr Rodley considered that TVNZ should have advised the overseas producers that such scenes would breach the Broadcasting Act, so that the producers "could have and should have found a way around cutting out the scene."

The Authority’s Determination

[23] When it determines a complaint that a broadcast contravenes Standard 1 of the Television Code, the Authority is required to determine whether the material complained about breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but does not determine whether the programme breached the standard. Accordingly, the Authority has considered the context in which the material complained about was broadcast.

[24] The Authority accepts that the relevant contextual matters on this occasion included the starting time of the broadcast (at 9.35pm), the nature of the programme (adult drama series), the pre-broadcast warning, and the programme’s AO classification. The Authority notes that there was no explicit nudity, and while the nature of the scene was relatively explicit, it considers it was relatively brief, and did not amount to two males "banging away" as alleged by the complainant. The Authority accepts that the scene was part of an ongoing story-line, that its total removal would have left that aspect of the story-line unresolved, and that the broadcaster had made some cuts to the segment complained about to make the scene as brief as possible.

[25] In Decision No: 2002-107 dated 22 August 2002, the Authority acknowledged the boundary-pushing nature of some of the scenes in the series. The Authority reiterates the point made in that Decision, that it does not assess such scenes in isolation, and the context of the broadcast is one of the relevant factors taken into account. It is also noted that research conducted by the Authority has disclosed a somewhat lower tolerance among the public regarding sexual activity between members of the same sex. However, in view of the contextual matters referred to above, the Authority concludes that Standard 1 is not breached on this occasion.

[26] The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

For the reasons given above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
21 November 2002

Appendix

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

1. N N Rodley’s Letters of Complaint to Television New Zealand Ltd – 30 July and 5 September 2002
2. TVNZ’s Response to the Complaint – 14 August 2002
3. Mr Rodley’s Referral to the Broadcasting Standards Authority – 5 September 2002
4. TVNZ’s Response to the Authority –13 September 2002
5. Mr Rodley’s Final Comment – 23 September 2002