BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Forgetting Sarah Marshall– contained three brief shots of a naked man with his genitals visible at approximately 8.35pm – use of words “fuck” and “fucking” at about 8.40pm – allegedly in breach of standards relating to good taste and decency and children’s interests

Findings
Standard 9 (children’s interests) – nudity was fleeting and non-sexualised – expletives were incidental and used colloquially rather than abusively – content did not amount to “strong adult material” broadcast too soon after the AO watershed – movie was classified AO and broadcast outside children’s viewing times – warning for nudity and language allowed parents to exercise discretion – not upheld

Standard 1 (good taste and decency) – contextual factors – not upheld

This headnote does not form part of the decision. 

Broadcast

[1]  A movie called Forgetting Sarah Marshall was broadcast on TV3 at 8.30pm on Thursday 4 August 2011. The film followed the male lead character Peter on his vacation to Hawaii in an attempt to deal with his break-up with his TV star girlfriend, Sarah.

[2]  During the break-up scene at the beginning of the movie, Peter emerged from the shower wearing only a towel. Sarah stated, “Peter, as you know, I love you very much”, and he responded, “You’re breaking up with me?” Peter put his hands to his face and let the towel drop to the floor, at which point there was a brief shot of his genitals. This was followed by a shot from behind, exposing Peter’s naked bottom as he crouched down with his face in his hands, and another brief full-frontal shot as he turned to face the camera. Sarah asked him to put some clothes on but he refused, stating, “I am not going to go put clothes on. I know what that means, if I put clothes on, it’s over”. Peter sat down on the couch and stated, “Let’s talk about it”. There was a fleeting shot of his genitals from the side when he stood up.

[3]  In the subsequent scene, Peter was in a bar with his step-brother, discussing his despair over the fact that he had been dumped for another man. Peter said, “I think I need to fuck somebody. ...She’s fucking somebody... It’s all I can think about, that she’s out there. And until I do the same thing I feel like I want to die...”

[4]  The movie was preceded by the following written and verbal warning:

This film is rated Adults Only and contains language, sexual material and nudity that may offend some people.

Complaint

[5]  Vicki Steans made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the movie breached standards relating to good taste and decency and children’s interests. She argued that the full-frontal shots of a man’s penis were “unacceptable” for broadcast at 8.30pm on free-to-air television, and questioned why expletives such as “fuck” and “fucking”, broadcast at approximately 8.40pm, were not “bleeped out”. The complainant considered that the content was inappropriate for the timeslot.

Standards

[6]  Ms Steans nominated Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice in her complaint. Guidelines 9a and 9b are also relevant. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters should consider the interests of child viewers.

Guidelines

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 that would disturb or alarm them.

9b   When scheduling AO material to commence at 8.30pm, broadcasters should ensure that strong adult material is not shown soon after the watershed.

Broadcaster’s Response to the Complainant

[7]  TVWorks noted that Forgetting Sarah Marshall screened at 8.30pm, was classified AO and was preceded by a written and verbal warning for language and nudity.

[8]  The broadcaster argued that the nudity subject to complaint was presented in a non-sexual and humorous context and was not intended to titillate. It said that the comedy arose from the absurdity of the situation, namely, “the male character obstinately refusing to clothe himself while holding an emotionally harrowing conversation with the woman who has just broken his heart”. TVWorks argued that the scene was not gratuitous, but introduced the film’s plot by depicting the break-up, with the nudity contributing a “comic twist” to what was otherwise a sad situation. In addition, it was of the view that the nudity assisted in revealing the main character’s “awkward, clumsy and clown-like nature... [and] also served as a visual metaphor for the collapse of his relationship – the towel falls away and his world comes crumbling down, rendering him emotionally naked and vulnerable”. The broadcaster said that while it understood that male nudity was not to everyone’s taste, it was satisfied that, on this occasion, most viewers would not have been unduly distressed or surprised, given the film’s AO classification, clear pre-broadcast warning and the non-sexual nature of the nudity.

[9]  With regard to the complainant’s concerns about the language in the film, in particular, the use of the words “fuck” and “fucking”, TVWorks noted that the word “fuck” first occurred at 8.37pm and that there were only six other instances prior to 9pm. In the broadcaster’s view, the language was not excessive in the context of the film and was consistent with what was acceptable for a film in the period immediately following the 8.30pm watershed. It noted that more challenging language was used later in the film, well after the AO watershed. 

[10]  TVWorks noted that the Authority had previously stated that Standard 1 assumed that adult viewers took reasonable measures to inform themselves about what they were watching and accepted responsibility for protecting their own sensibilities. Further, it contended that the Authority had stated that the purpose of the good taste and decency standard was not to prohibit all challenging material, or material that some people may find offensive, but to ensure that sufficient care was taken so that challenging material was played only in an appropriate context, and that challenges were not so offensive that they were unacceptable regardless of context. The broadcaster reiterated that the movie was preceded by a clear and specific warning as to its likely content, therefore providing the audience with an adequate opportunity to make alternative viewing choices.

[11]  For these reasons, the broadcaster considered that the content was acceptable in an AO-classified movie screened at 8.30pm, and it declined to uphold the complaint under Standard 1.

[12]  Turning to consider Standard 9, the broadcaster reiterated that the movie screened after the 8.30pm watershed and was preceded by a clear warning. In this respect, it considered that parents were given ample opportunity to monitor their children’s viewing. In addition, it contended that the programme appraiser had taken care to ensure that unduly challenging material was not screened immediately after the watershed in the transition from PGR to AO time. In the broadcaster’s view, the non-sexual nature of the nudity screened close to the watershed was unlikely to alarm or distress children.

[13]  TVWorks concluded that the movie was appropriately classified and scheduled and that it had sufficiently considered children’s interests. Accordingly, it declined to uphold the Standard 9 complaint.

Referral to the Authority

[14]  Dissatisfied with the broadcaster’s response, Ms Steans referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. She disagreed with the broadcaster’s assertion that the full-frontal nudity would not have alarmed or distressed child viewers because it was non-sexual, and maintained that it was unacceptable for broadcast at 8.30pm, regardless of the movie’s classification and warning. In her view, the nudity should have been obscured, or the movie screened later in the evening. Ms Steans maintained that the movie contained inappropriate language for such an early timeslot, asserting that, “In the past, ‘fuck’ and other such language was bleeped out until after 9pm”. She maintained that Standards 1 and 9 had been breached.

Authority’s Determination

[15]  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.

Standard 9 (children’s interests)

[16]  Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm.

[17]  While Forgetting Sarah Marshall was broadcast at 8.30pm during AO time, it contained nudity at approximately 8.35pm and the words “fuck” and “fucking” at approximately 8.40pm. The issue is whether this content amounted to “strong adult material” as envisaged by guideline 9b to the children’s interests standard, which states that broadcasters should ensure that such material is not shown soon after the 8.30pm watershed.

[18]  We note that the nudity subject to complaint consisted of three fleeting shots of a man’s penis in the context of a break-up scene, when the man dropped his towel in shock, after learning that his girlfriend was breaking up with him. In our view, the scene was intended to be light-hearted and humorous, rather than titillating or salacious. There was nothing inherently offensive about the nudity, which was brief and non-sexualised, and we therefore find that it did not amount to “strong adult material” as envisaged by guideline 9b.

[19]  With regard to the complainant’s concerns about the film’s language, we note that most of the coarse language occurred later in the movie, and that only the words “fuck” and “fucking” were broadcast “soon” after the 8.30pm watershed. We acknowledge that these words could in some circumstances amount to “strong adult material”, for example where the use of them is excessive, gratuitous or aggressive or abusive in manner.¹ However, on this occasion, these expletives occurred in a noisy bar scene, and were hard to make out, as the main character talked to his friend about his despair over being dumped for another man. In our view, the expletives were incidental in the sense that they formed a natural part of the characters’ dialogue and were used colloquially to refer to sex; the expletives were not abusive and were not emphasised in any way. Accordingly, we do not consider that the use of two variations of the word “fuck” in this particular context amounted to “strong adult material” for the purposes of guideline 9b.

[20]  In addition, we note that the movie was preceded by a clear warning for nudity and potentially offensive language which gave parents an opportunity to exercise discretion with regard to their children’s viewing.

[21]  For these reasons, we find that the broadcaster did not screen strong adult material too close to the watershed, and that it adequately considered the interests of child viewers. Accordingly, we decline to uphold the Standard 9 complaint.

Standard 1 (good taste and decency)

[22]  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:

• Forgetting Sarah Marshall was broadcast at 8.30pm in the AO time-band
• the movie was classified AO
• the movie had an adult target audience
• it was preceded by a written and verbal warning advising viewers that it contained language, sexual material and nudity that may offend
• audience expectations of the movie.

[23]  For the reasons outlined above under our consideration of Standard 9, and taking into account the relevant contextual factors, including the movie’s narrative context and storyline, we find that the content subject to complaint did not threaten current norms of good taste and decency. Accordingly, 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

Peter Radich
Chair
18 October 2011

Appendix

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

1                  Vicki Steans’ formal complaint – 4 August 2011

2                 TVWorks’ response to the complaint – 5 August 2011

3                 Ms Steans’ referral to the Authority – 5 August 2011

4                 TVWorks’ response to the Authority – 19 August 2011

¹See, for example, Binks and Others and TVWorks Ltd, Decision No. 2010-141