BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

Smits and Television New Zealand Ltd - 2001-100

  • P Cartwright (Chair)
  • B Hayward
  • R Bryant
  • J H McGregor
  • Phillip Smits

Space – interview with rock group Pantera – language – fuck – motherfucker – offensive – standard G2 upheld by broadcaster – warning acknowledged as inadequate – action taken to improve warnings

Decline to determine – s.11(b) – attempt by complainant to re-litigate conviction for use of obscene language under Telecommunications Act

This headnote does not form part of the decision.


"Pantera", a heavy metal band, was interviewed on Space which was broadcast on TV2 on 11 May 2001 starting at 10.25pm.

Phillip Smits complained to Television New Zealand Ltd, the broadcaster, that the language in a programme aimed at young people was obscene.

In response, TVNZ noted that the interview included the words "fuck" and "motherfucker". It referred to the programme’s AO rating and time of broadcast, and said that the language used was part of the "Pantera persona". Nevertheless, as the warning broadcast before the programme did not acknowledge the extent of the offensive language used, it upheld the complaint. Steps had now been taken, it said, to ensure that more adequate warnings were used in the future.

Dissatisfied with the action taken by TVNZ, Mr Smits referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

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


The members of the Authority have viewed a tape of part of the item complained about. Television New Zealand Ltd advised that the interview was shown in two parts, at about 10.40pm and about 11.40pm. The second section was not available, TVNZ explained, as transmission tape on which the programme was recorded ran out before the second section started. TVNZ advised that the second section carried on in a similar vein to the first. The Authority has read the correspondence listed in the Appendix and determines the complaint without a formal hearing.

The programme Space was broadcast weekly by TV2 on Fridays at 10.25pm for ninety minutes. According to "The Listener", the hosts "present live Kiwi music, video clips and various other multi-media matters". The episode of Space broadcast on 11 May included an interview with members of "Pantera", a heavy metal band. The interview was divided into two sections and broadcast at 10.40 and 11.40pm.

Mr Smits complained to TVNZ that the language used by members of the group was obscene and breached the standard requiring good taste and decency. He considered inadequate the warning at the start of the programme which said the broadcast "may" contain coarse language.

TVNZ assessed the complaint under standard G2 of the Television Code of Broadcasting Practice which requires broadcasters in the presentation and preparation of programmes:

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.

Noting that both parts of the interview included the repeated use of the word "fuck" and, on some occasions, the word "motherfucker", TVNZ said that such language was "part and parcel of the Pantera persona", and was also part of the group’s trademark in its dealings with the media.

In assessing the complaint, TVNZ took into account such contextual matters as the hour of the broadcast, the programme’s classification (AO), the expectations of the audience, and the presence of a warning. In regard to likely viewing expectations, TVNZ said that the programme was aimed at people in their late teens and young adults, and contended that the language used would come as no surprise to the majority of the audience.

As the warning stated that the programme "may contain coarse language", TVNZ accepted that it was inadequate. Nevertheless, it continued, had the warning been more explicit, TVNZ would have been inclined not to uphold the complaint in view of the other matters of context.

TVNZ apologised for the offence caused and said discussions would take place with the production company to ensure that warnings in future adequately reflected content.

When he referred his complaint to the Authority, Mr Smits said that he was dissatisfied with TVNZ’s statement that the complaint would probably not have been upheld if an adequate warning had been broadcast.

The Authority's Findings

As part of his original complaint, Mr Smits wrote to TVNZ:

because of serious misjudgement by career parasites at the Broadcasting Standards Authority, I’ve got a stick to beat you (and them) with.

When he referred his complaint to the Authority, the first paragraph of his letter adverted to his conviction on a charge under the Telecommunications Act 1987 of using obscene language with the intention of offending the recipient. He was convicted of that offence on 20 July 2000 when the Police brought a prosecution against him following a complaint from the Authority.

Mr Smits’ referral expressed his dissatisfaction with TVNZ’s decision on his complaint, as well as his disagreement at his conviction. In a comment addressed to the Authority’s Chair, he stated:

You know what’s obscene and what’s not (as do I). You probably wouldn’t have allowed the corrupt judgment of your Chief Executive to have an obscenity charge bought against this writer in those circumstances – but it’s too late now. The Authority can’t have it both ways – you can’t have people arrested for using the same language you allow to be broadcast.

In its response to the Authority on Mr Smits’ referral, TVNZ observed:

We have nothing further to add other than to note that it does not seem appropriate for Mr Smits to use the formal complaints process in an effort to re-litigate his recent brush with the law.

In his final comment, Mr Smits responded:

Now, about ‘re-litigation’ using the formal complaints process as [TVNZ] has accused me of. No, I’m just using the stick you (the Broadcasting Standards Authority) have given me to beat them with. O but I have some news – a protracted stoush with the Police re perjury in that ‘matter’ has been put on the back-burner for the time being, however I am seeking to appeal to the Court of Appeal re the High Court decision. It’s costing thousands more on top of the thousands already spent but it’s vitally important that you don’t win.

Do you know what’s really offensive (read ‘obscene’)???? – it’s ‘double standard’ – it’s hypocrisy.

The nature of the correspondence leads the Authority to the conclusion that Mr Smits is using the complaints process in an attempt to re-litigate his conviction. In doing so, the Authority considers he is using abusive and threatening language. Given the tone and tenor of his letters, and the personal remarks they contain, the Authority declines to determine this complaint under s.11(b) of the Broadcasting Act. Section 11(b) provides:

11. The Authority may decline to determine a complaint referred to it under section 8 of this Act if it considers-

(a) …
(b) That, in all the circumstances of the complaint, it should not be determined by the Authority.


For the above reasons, the Authority declines to determine the complaint in all the circumstances under s.11(b) of the Broadcasting Act 1989.

Signed for and on behalf of the Authority


Peter Cartwright|
16 August 2001


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

  1. Mr Smits’ Complaint to Television New Zealand Ltd – 13 May 2001.
  2. TVNZ’s Response to the Complaint – 5 June 2001
  3. Mr Smits’ Referral to the Broadcasting Standards Authority – 10 June 2001.
  4. TVNZ’s Response to the Authority – 19 June 2001
  5. Mr Smits’ Final Comment – received 5 July 2001