Schwabe and Television New Zealand Ltd - 2011-076
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Paul Schwabe
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Fair Go – use of the word “shit” – allegedly in breach of standards of good taste and decency
Standard 1 (good taste and decency) – presenter used the word “shit” as an expression of his pain and frustration – contextual factors – not upheld
This headnote does not form part of the decision.
 During Fair Go, broadcast on TV One at 7.30pm on 23 March 2011, one of the presenters discussed his frustration with attempting to assemble a “spring-free” trampoline. Having nearly finished putting the trampoline together, the presenter discovered that he had inserted the rods under the trampoline into the wrong holes. He remarked, “So we have to undo all those? Shit.” He went on to say, “Getting them out is almost worse than getting them in, and more hazardous.” Footage was shown of one of the rods springing out and firing straight into the presenter’s leg, and he exclaimed, “Shit! ...Jesus,” as he was visibly in pain.
 At the conclusion of the segment, Fair Go’s other presenter said, “There are spring-free installers in all the main centres. I would not advise calling [my co-presenter], who has also promised me he will clean up his language a bit.”
 Paul Schwabe made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the presenter’s use of the word “shit” breached section 4(1)(a) of the Broadcasting Act 1989 which relates to the observance of good taste and decency.
 TVNZ assessed Mr Schwabe’s complaint under Standard 1 of the Free-to-Air Television Code of Broadcasting Practice, which provides:
Standard 1 Good Taste and Decency
Broadcasters should observe standards of good taste and decency.
Broadcaster’s Response to the Complainant
 TVNZ noted that the Authority had previously determined that section 4(1)(a) of the Act and Standard 1 of the Code imposed the same standard on broadcasters.1 It therefore considered Mr Schwabe’s complaint under Standard 1 of the Free-to-Air Television Code.
 The broadcaster maintained that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context it was shown, including the time of broadcast, the programme’s classification, the target audience, and the use of warnings.
 On this occasion, TVNZ noted that Fair Go was screened in a PGR timeslot and aimed at an adult audience. It argued that the language used by the presenter was “an emotional response to a difficult and stressful situation for him”. It considered that the word “shit” was “low level coarse language”, and that it had “consistently been acceptable to screen in PGR time”.
 TVNZ maintained that Standard 1 did not aim to prevent the broadcast of all potentially offensive material, and noted that “viewers have a right to receive information and view programmes... that are interesting and entertaining and broadcasters have the right to broadcast such material,” in accordance with the right to freedom of expression in section 14 of the Bill of Rights Act 1990. It argued that “the [Authority] must show real restraint in upholding complaints under this standard”.
 TVNZ concluded that the use of the word “shit” did not breach Standard 1 and it declined to uphold the complaint.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr Schwabe referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 Mr Schwabe asserted that Fair Go was rated G, not PGR. He also pointed out that “shit” was defined as “vulgar slang” in the Free Varley dictionary, which he considered was not consistent with standards of good taste and decency. Noting that TVNZ accepted that the item was pre-recorded, Mr Schwabe argued that it could easily have been edited to exclude the coarse language.
 The complainant maintained that his complaint should be considered under section 4(1)(a) of the Broadcasting Act, rather than Standard 1 of the Code. He argued that Standard 1 was “a deliberately vague alternative” to the provision in the Act, and considered that the guidelines to Standard 1 referring to “contextual defences” lowered the standard for good taste and decency. Mr Schwabe considered that, to evaluate current norms of good taste and decency, the Authority should research people’s opinions of “language of good taste and decency in New Zealand”, rather than the use of words in particular broadcasting contexts.
Broadcaster’s Response to the Authority
 TVNZ noted that Mr Schwabe had raised the issue of section 4(1)(a) in two previous decisions,2 and invited the Authority to make a finding that this part of the present complaint was vexatious. It reiterated that the Authority had already ruled on this point in Simmons and Others and CanWest TVWorks.3
Further Submissions from the Broadcaster
 TVNZ pointed out that Fair Go was not rated G, but was unclassified because it was broadcast live.
Complainant’s Response to Further Submissions
 Mr Schwabe pointed out that the item subject to complaint was pre-recorded, not live. He maintained that Fair Go was classified G in The New Zealand Herald on the day of the broadcast, and for many years before that. He also noted that under Appendix 1 to the Code, the G time-band ran 24 hours a day and that “The PGR timeslot is also 24 hours a day, except for 6–9am and 4–7pm.”
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Mr Schwabe specified that his complaint was made under section 4(1)(a) of the Broadcasting Act 1989, rather than Standard 1 (good taste and decency) of the Free-to-Air Television Code.
 We recently determined in relation to another complaint lodged by Mr Schwabe that section 4(1)(a) and Standard 1 of the Code impose the same standard on broadcasters.4
 We therefore proceed to determine the complaint under Standard 1.
Standard 1 (good taste and decency)
 When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:
- Fair Go was broadcast live and therefore unclassified
- it was broadcast at 7.30pm during the PGR time-band
- the segment subject to complaint was pre-recorded
- it was broadcast during children’s normally accepted viewing times
- the programme’s adult target audience
- expectations of regular viewers.
 TVNZ has informed us that Fair Go was unclassified because it was broadcast live. We note, however, that the segment in which the word “shit” was used was pre-recorded. Appendix 1 to the Code states:
Sports and Live Programming cannot be classified due to the “live” nature of the broadcast. The broadcaster should take all reasonable steps to ensure that the content of the programme conforms with the underlying time-band in which the programme is broadcast.
 Fair Go was broadcast during the PGR time-band, after 7pm. The Authority has previously found that the use of the word “shit” during an unclassified programme broadcast during PGR time did not breach standards of good taste and decency, taking into account the context in which it was broadcast.5 Further, in our view, Fair Go, as a consumer advocacy programme, was clearly targeted at adult viewers and was unlikely to appeal to children or to be viewed by unsupervised child viewers. In these circumstances, we consider that the broadcaster took adequate steps to ensure that the segment complied with the PGR time-band.
 We also consider that “shit” is a word which is in common use in our society and that, while its use is not always acceptable, it is a word where unacceptability often arises on account of coarseness and crudeness rather than obscenity, degradation or inferences of violence. On this occasion, the Fair Go presenter’s tone of voice was mild, and he was not using the word “shit” as a term of abuse. In the first instance, he was expressing his frustration upon discovering that he had to take the trampoline apart and start the assembly again. On the second occasion, the presenter’s use of the word “shit” was a spontaneous and instinctive reaction to feeling pain.
 Taking all of these factors into account we have reached the conclusion that the use of the word did not exceed current norms of good taste and decency on this occasion.
 In these circumstances, we decline to uphold the complaint that the programme breached Standard 1.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
4 October 2011
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Paul Schwabe’s formal complaint – 15 April 2011
2 TVNZ’s response to the complaint – 6 May 2011
3 Mr Schwabe’s referral to the Authority – 30 May 2011
4 TVNZ’s response to the Authority – 8 July 2011
5 Further comments from TVNZ – 15 September 2011
6 Further comments from Mr Schwabe – 21 September 2011
1Simmons and Others and CanWest TVWorks, Decision No. 2006-022
3Decision No. 2006-022
4See Schwabe and TVNZ, Decision No. 2011-041 at paragraphs  to 
5See Miller and TVNZ, Decision No. 2008-128