Schwabe and Television New Zealand Ltd - 2001-133
- P Cartwright (Chair)
- J H McGregor
- R Bryant
- Paul Schwabe
BroadcasterTelevision New Zealand Ltd
Strassman – fuck – offensive language
Section 4(1)(a) – consideration of context required as specified in standard G2; Standard G2 – acceptable in context – no uphold; comment – offensive language in end credits – bordering on gratuitous; comment – children in studio audience – unsatisfactory as programme classified AO
This headnote does not form part of the decision.
 An episode of Strassman broadcast on TV2 at 9.30pm on 26 June 2001 included the word "fuck" as part of the dialogue. Strassman is a comedy series featuring ventriloquist David Strassman.
 Paul Schwabe complained to Television New Zealand Ltd, the broadcaster, that the language was offensive.
 In response, TVNZ contended that the language was not unacceptable in context, and declined to uphold the complaint. It pointed out that the Broadcasting Standards Authority had declined to uphold earlier complaints from Mr Schwabe about such language in Strassman.
 Dissatisfied with TVNZ’s decision, Mr Schwabe referred the complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989.
For the reasons given below, the Authority declines to uphold the complaint.
 The members of the Authority have viewed a tape of the item complained about and have read the correspondence listed in the Appendix. The Authority determines this complaint without a formal hearing.
 Paul Schwabe complained to Television New Zealand Ltd, the broadcaster, about offensive dialogue used on Strassman broadcast at 9.30pm on TV2 on 19 June 2001. Strassman is a New Zealand made comedy series featuring ventriloquist David Strassman. The dialogue included the word "fuck" which he described as highly offensive.
 TVNZ assessed the complaint under s.4(1)(a) of the Broadcasting Act 1989, along with standard G2 of the Television Code of Broadcasting Practice. Section 4(1)(a) provides:
(1) Every broadcaster is responsible for maintaining in its programmes and their presentation, standards which are consistent with -
(a) The observance of good taste and decency;
 Standard G2 requires broadcasters:
G2 To take into consideration currently accepted norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs.
The Broadcaster’s Response to the Complainant
 TVNZ pointed out that the language complained about was used only at the end of the programme. TVNZ then noted a number of contextual matters it considered relevant to the determination of the complaint. They included the points that the programme was broadcast at 9.30pm (One hour after the start of AO time) and was preceded by a warning which drew specific attention to the language.
 TVNZ also cited earlier decisions when the Authority declined to uphold complaints from Mr Schwabe about the use of the word "fuck" in episodes of Strassman, (2000-137, 5.10.00) and (2000-156, 6.11.00).
The Referral to the Authority
 When he referred this complaint to the Authority, Mr Schwabe wrote:
Perhaps these indecent language broadcasts could be considered to more appropriately fall under the Crimes Act. Not only because they appear to demonstrate a complete contempt of the Broadcasting Act by broadcasters and destroy ordinary citizens confidence in those involved in Law, but because these broadcasts are in my view, a crime against New Zealand society.
The Authority’s Determination
 In determining a complaint which alleges a breach of s.4(1)(a) of the Broadcasting Act, the Authority receives guidance from standard G2 of the Television Code of Broadcasting Practice. Standard G2 requires the Authority to take "context" into account. As community norms of "good taste" and "decency" are not absolute concepts, it is the Authority’s practice to determine complaints which refer only to s.4(1)(a), by reference to standard G2.
 Consequently, when the Authority considers a complaint alleging a breach of good taste and decency, it takes into account the context in which the material complained about occurs. The context is relevant, but not decisive, to the Authority’s determination of whether the programme breached standards of good taste and decency.
 In the episode of Strassman broadcast on 19 June 2001, Mr Schwabe also complained about the use of "fuck". In its decision on that complaint, the Authority wrote: (2001-111, 20.09.01)
The Authority considers the relevant contextual factors on this occasion include the programme’s AO classification, its broadcast at 9.30pm, and the visual and verbal warning about language which preceded the programme and which reminded viewers that it was deemed suitable for an adult audience. To a lesser extent, it is relevant that this was a comedy programme devised for a night-club setting which was clearly presented as adult entertainment. As such, the Authority considers that its content would have been within the expectations of the audience.
Similar observations were made by the Authority last year when it determined a complaint about the use of the word "fuck" in the Strassman programme (2000-156, 6 November 2000). They remain applicable to this complaint.
However the Authority notes one difference between the broadcast last year and the programme which is the subject of the current complaint which is of concern.
Strassman is presented as if in a night-club location where the studio audience does not object to the language used. However, in the episode complained about, the Authority notes, there are comments from Mr Strassman and his dummies both during and after the credits at the end of the programme. These comments include the use of the word "fucking". In the Authority’s view, this sequence does not fit into the night-club setting and the use of such language at this end point in the programme borders on the gratuitous. The contextual factors which save the subject language from a standards breach do not, in the Authority’s view, extend easily when juxtapositioned in the credits.
The Authority observes that to find a breach on this occasion, without first issuing a warning, would be to interpret the Broadcasting Act 1989 in such a way as to unreasonably restrict the broadcaster's statutory right to freedom of expression contained in s.14 of the NZ Bill of Rights Act 1990. On this occasion, the Authority will adopt an interpretation of the standard which is without constraint and which is consistent with the Bill of Rights.
 Decision 2001-111 was released after the broadcast of the episode which is subject to the current complaint. Although the use of the word "fuck" was confined to the credits at the end of the programme, the broadcaster would not have received the warning when the episode on 26 June was screened. In these circumstances, the Authority considers that it would be inappropriate to uphold this complaint.
 The warnings contained in Decision 2001-111 and in this decision should be adequate notice to the broadcaster as to the unacceptability of any future use of the subject language in credits at the end of any further episodes of Strassman.
 The Authority notes that there appeared to be some teenagers among the audience and questions whether that is appropriate given the broadcaster’s emphasis on the adult context of the programme.
For the reasons above, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
8 November 2001
The following correspondence was received and considered by the Authority when it determined this complaint:
- Paul Schwabe’s Formal Complaint to Television New Zealand Ltd – 19 July 2001
- TVNZ’s Response to Mr Schwabe – 2 August 2001
- Mr Schwabe’s Referral to the Broadcasting Standards Authority – 24 August 2001
- TVNZ’s Response to the Authority – 31 August 2001