Smith and Television New Zealand Ltd - 2003-049
- P Cartwright (Chair)
- J H McGregor
- Tapu Misa
- R Bryant
- Cherry Smith
ProgrammeEyes Wide Shut
BroadcasterTelevision New Zealand Ltd
Eyes Wide Shut – film – screened at 9.30pm during school holidays – sexual content – unsuitable for children
Standard 1 and Guideline 1a – not relevant
Standard 9 and Guidelines 9a, 9b & 9c – 9.30pm not children’s normally accepted viewing time – no uphold
This headnote does not form part of the decision.
 Eyes Wide Shut was a film broadcast during the school holidays, on TV2 at 9.30pm on Tuesday 21 January 2003. The film was preceded by a warning which cited "strong sexual content", "nudity" and "drug use", and it was classified AO.
 Cherry Smith complained to Television New Zealand Ltd, the broadcaster, that by not providing sufficient information about the film prior to its broadcast, TVNZ failed to consider the interests of children.
 In response, TVNZ stated that the film was screened well after the widely recognised watershed, it was preceded by a visual and verbal warning, and the AO classification symbols were displayed at the beginning of the film and after each commercial break. It did not uphold the complaint.
 Dissatisfied with TVNZ’s decision, Ms Smith referred her complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold the complaint.
 The members of the Authority have viewed a video of the film complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The film Eyes Wide Shut was broadcast during the school holidays, at 9.30pm on Tuesday 21 January 2003 on TV2. The film was preceded by a warning which cited "strong sexual content", "nudity" and "drug use", and it was classified AO.
 Ms Smith made an informal complaint to TVNZ. She was concerned with the graphic nudity and scenes of a sexual nature and, in particular, with the timing of the broadcast during the school holidays.
 Ms Smith noted that the film was broadcast after another programme on TV2 which had an AO rating, but given the differing content of the broadcasts, contended that the AO classification for Eyes Wide Shut was insufficient.
 Ms Smith subsequently made a formal complaint. She referred to the juxtaposition of a children’s programme on TV3 that had ended at 9.30pm, and the starting time of the film complained about on TV2. She reiterated that, on this occasion, the AO classification was insufficient and argued that a tougher classification would have put parents on alert.
 The complaint was assessed by the broadcaster under Standard 1 of the Free-to-Air Television Code of Broadcasting Practice, and Standard 9 as nominated by the complainant. The Standards, and relevant Guidelines, 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.
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.
9a Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material which would disturb or alarm them.
9b When scheduling AO material to commence at 8.30pm, broadcasters should exercise discretion to ensure that the content which led to the AO rating is not shown soon after the watershed.
9c Broadcasters should have regard to the fact that children tend to stay up later than usual on Friday and Saturday nights and during school and public holidays and, accordingly, special attention should be given to providing appropriate warnings during these periods.
The Broadcaster’s Response to the Complainant
 TVNZ responded to Ms Smith’s informal complaint by providing her with its policy on the broadcasting of AO programmes.
 In response to Ms Smith’s formal complaint, TVNZ stated that it had a responsibility to mature adult audiences to broadcast films of significance. It cited the "cultural interest" associated with Eyes Wide Shut, as it was the last film made by the famous and controversial director, Stanley Kubrick, and the main actors were two of the biggest names in film-making.
 In its consideration under Standard 1, TVNZ stated that the film began at 9.30pm, a full hour after the "adults only" watershed, and the restriction was listed in advance in newspaper and magazine billings. It also stated that the "AO" symbol was shown at the beginning of the film and after each commercial break and, in addition, pointed out that a visual and verbal warning advised discretion, and alerted the viewer to the "strong sexual content", "nudity" and "drug use". Accordingly, TVNZ declined to uphold the complaint under Standard 1.
 In relation to Standard 9, the broadcaster referred to the time of the broadcast, the appropriate classification and warning, and was satisfied that sufficient consideration had been given to the interests of children.
 TVNZ referred to the Broadcasting Standards Authority research relating to parental responsibility to monitor what their children watched, and argued that, in this instance, it had provided sufficient information for parents and guardians to make an informed decision. In the broadcaster’s view, it was clear that the film was not recommended for children’s viewing.
 The broadcaster concluded by arguing that there was an hour of AO viewing before the opening sequence in the film and, therefore, it declined to uphold any aspect of the complaint under Standard 9.
The Referral to the Broadcasting Standards Authority
 Dissatisfied with TVNZ’s response, Ms Smith argued that her concerns were not related to the "good taste and decency" aspect of the Code, as in her opinion the film was quite acceptable for adult viewing. Her concern was that children could have had access to a film with "strong sexual content", because it followed straight after a children’s movie on TV3, and it was broadcast during the school holidays.
 In the complainant’s view, TVNZ provided a "minimum" amount of information on the film and this was insufficient to make an informed decision on the suitability of the film for children’s viewing.
The Broadcaster’s Response to the Authority
 TVNZ pointed out that it did not have access to advanced schedules for any other television companies and, therefore, an assessment of the juxtaposition of other broadcaster’s programming was, in this instance, inappropriate.
 TVNZ concluded by stating that when a film had an AO classification, which was shown at the beginning of every programme and after each commercial break and, in addition, was accompanied by a warning, it was hoped that viewers would have sufficient information to make an informed decision about their choice of viewing. In TVNZ’s view, a film classified in this way was a clear indication that the content was not appropriate for children’s viewing.
The Authority’s Determination
 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 breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast.
 However, the Authority notes that in this instance the complainant specifically stated that her concerns were not related to the "good taste and decency" aspect of the Code because, in her view, the film was "quite acceptable for adults". As a result, the Authority concludes that Standard 1 is not relevant to its determination.
 Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times. Ms Smith complained that the broadcaster had failed to consider children when broadcasting this film, mainly because it was broadcast during the school holidays, but also because of the timing and its juxtaposition with a "children’s film" on another channel. The Authority notes that the standard relating to "children" refers to those under the age of 14 years. It acknowledges that broadcasters should have regard to the fact that children stay up later than usual during the school holidays but, in the Authority’s view, 9.30pm, even during the school holidays, is not regarded as a "children’s normally accepted viewing time". The Authority also notes Ms Smith’s comments regarding the use of warnings by broadcasters but, in this instance, is satisfied that sufficient attention was given by the broadcaster to providing the appropriate warnings.
 In relation to the complainant’s contention regarding the juxtaposition of programming by different broadcasters, the Authority does not consider that this is a relevant issue in its determination of the complaint.
 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
19 June 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
- Ms Smith’s Informal Complaint to TVNZ – 25 January 2003
- TVNZ’s Response to the Informal Complaint – 3 February 2003
- Ms Smith’s Formal Complaint to TVNZ – 3 March 2003
- TVNZ’s Response to the Formal Complaint – 25 March 2003
- Ms Smith’s Referral to the Broadcasting Standards Authority – 27 March 2003
- TVNZ’s Response to the Authority – 11 April 2003