BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Mercy Peak – sexual scenes – offensive – indecent themes – broadcaster not mindful of the impact on teenage viewers

Findings
Standard 1 – contextual matters – no uphold

Standard 9 – not relevant – no uphold

This headnote does not form part of the decision.

Summary

[1] Mercy Peak is a New Zealand drama series. An episode broadcast on TV One at 8.35pm on Wednesday 25 September 2002 included a sex scene between two characters who were portrayed as having an affair.

[2] Anne Shearer complained to Television New Zealand Ltd, the broadcaster, that the sex scene shown and the story-line were offensive. In her view, TVNZ had been irresponsible because it had failed to consider the impact of such themes on teenage viewers.

[3] When the broadcaster failed to respond to her formal complaint, Ms Shearer referred it to the Broadcasting Standards Authority under s.8(1)(b) of the Broadcasting Act 1989.

[4] In its response to the Authority, TVNZ said that the material shown in context did not breach broadcasting standards. It recommended that the complaint not be upheld.

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

Decision

[5] The members of the Authority have viewed a video 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] Mercy Peak is a New Zealand drama series. An episode broadcast on TV One at 8.35pm on Wednesday 25 September 2002 included a sex scene between two characters who were portrayed as having an affair.

The Complaint

[7] Anne Shearer complained to TVNZ, the broadcaster, that the sex scene and the story-line depicted were offensive and immoral. She considered that the material portrayed irresponsible attitudes towards sex and relationships, which was unsuitable viewing material for teenage viewers. She wrote:

It opened with a sex scene at 8.35pm and continued with a slant on affairs, with the emphasis on "the sex is great but I don’t know if I love her…" I was greatly disappointed that fast, easy sex and open discussion of affairs pervaded this episode. What kind of example does this set our teenage children who see the glamorous side of the equation without the complex after effects? Does this teach faithfulness? Does this address the STD issue which may ensue when "playing around"?

The Referral to the Broadcasting Standards Authority

[8] As TVNZ failed to respond to Ms Shearer’s formal complaint within 20 working days, she referred her complaint to the Authority.

The Standards

[9] After the Authority had referred the complaint to the broadcaster, TVNZ assessed the complaint under Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice. The Standards and relevant Guideline read:

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.

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

The Broadcaster’s Response to the Authority

[10] Dealing first with its failure to respond to the formal complaint, TVNZ said that because it had not received the formal complaint it could not be blamed for its failure to respond.

[11] TVNZ noted that the programme was fiction and argued that sex scenes were typical in such works. It described Mercy Peak as "primarily light entertainment", which Ms Shearer had overlooked in questioning the impact of the programme. It wrote:

We do not accept that teenagers cannot distinguish between a fictional tale involving sex, and the dilemmas they face in their own lives when sexual issues arise. It is not the role of a fictional television programme to "teach" faithfulness; fictional stories reflect lifestyles which strike viewers as having elements with which they are familiar.

[12] Outlining the story-line involved in the episode complained about, TVNZ disputed that immoral behaviour was reflected, as contended by Ms Shearer. TVNZ noted that Ms Shearer had muted the sound and therefore may not have appreciated the story-line in context.

[13] In relation to Standard 1, TVNZ argued that in context the programme did not breach current norms of good taste and decency. It referred to the following contextual factors in support of its submission:

the programme was preceded by a warning which drew viewers’ attention to the fact that it was rated "Adults Only" and contained scenes which may offend some viewers;

the programme carried an AO certificate;

the programme started at 8.35pm;

the sex scene complained about was not visually explicit but rather relied on the "sounds of passion";

viewers are familiar with the nature of the series; and

the story was fictional.

[14] Turning to Standard 9, TVNZ argued that child viewers were defined in the Television Code as being those under 14 years of age, and that Ms Shearer’s complaint concerned the impact of the programme on teenage viewers, who were not expressly provided for in the standard. In any event, it argued that the warning and the "AO" classification indicated that TVNZ had considered the interests of child viewers.

The Complainant’s Final Comment

[15] Ms Shearer expressed her dismay at the inefficient handling of her complaint. In relation to the programme, she questioned whether the portrayal of offensive behaviour was excusable just because it was fictitious. Ms Shearer did not agree that programmes required sexual content in order to be successful, and she expressed her concern that the AO rating encouraged teenage viewers.

The Authority’s Determination

[16] When the Authority determines a complaint that a broadcast contravenes Standard 1 of the Television Code, it is required to determine whether the material complained about breached 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.

[17] The Authority accepts that the relevant contextual matters on this occasion included the time of broadcast (at 8.35pm), the nature of the programme (adult drama series), the pre-broadcast warning, and the programme’s AO classification. In the Authority’s view, the scene complained about was not explicit, and should not be considered in isolation of the genre – fictional adult drama that focuses on human relationships. Further the Authority notes that, while an affair was an integral element of the story-line, it was not condoned – the negative impact of affairs was discussed. Indeed the story-line involving "Alistair" depicted him as being troubled by the "relationship" and discussing it with the local vicar. In view of the contextual matters referred to above, the Authority concludes that the programme did not contravene Standard 1.

[18] Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times. Ms Shearer complained that the programme was unsuitable for teenage viewers. The Authority considers that Standard 9 is not relevant in this case, as it notes that the standard relating to "children" refers to those under the age of 14 years. It accepts that TVNZ was mindful of the interests of child viewers, by the pre-broadcast warning and the AO classification. Accordingly, the Authority declines to uphold this aspect of the complaint.

[19] The Authority shares Ms Shearer’s concern that her initial complaint to TVNZ was mislaid. However, because TVNZ’s complaints process is usually efficient, the Authority accepts TVNZ’s explanation that the error on this occasion was unusual.

[20] 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 above reasons, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
27 February 2003

Appendix

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

1. Anne Shearer’s Complaint to Television New Zealand Ltd – 26 September 2002
2. Ms Shearer’s Referral to the Broadcasting Standards Authority – 18 November 2002
3. TVNZ’s Response to the Authority – 10 November 2002
4. Ms Shearer’s Final Comment – 20 January 2003