BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Not Going Out – scene showed character dancing with baby – held baby at arm’s length and moved him from side to side – allegedly in breach of standards relating to good taste and decency, fairness, discrimination and denigration, children’s interests, and violence

Findings
Standard 1 (good taste and decency) – character did not shake baby – contextual factors – not upheld

Standard 10 (violence) – no actual violence – standard not applicable – not upheld

Standard 9 (children’s interests) – classified AO and screened at 11pm outside of children’s viewing times – standard not applicable – not upheld

Standard 6 (fairness) – characters fictional – standard not applicable – not upheld

Standard 7 (discrimination and denigration) – complainant did not specify who he considered had been denigrated or discriminated against – not upheld

This headnote does not form part of the decision. 

Broadcast

[1]  An episode of Not Going Out, a British sitcom about best friends Lee and Tim, was broadcast on TV One at 11pm on Friday 11 March 2011. In this episode, Lee and Tim were left to look after a baby. In an attempt to stop the baby crying, Lee turned some music on and danced with the baby; he held the baby at arm’s length, and moved him from side to side.

Complaint

[2]  Ron Stewart made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the episode breached standards relating to good taste and decency, fairness, discrimination and denigration, children’s interests, and violence.

[3]  The complainant referred to the scene in which the baby was “shaken from side to side”, and said that, of particular concern was the “very visible and disturbing shaking of the baby’s head”. He argued that treating a defenceless infant in this way was in bad taste, indecent and contrary to children’s interests.

Standards

[4]  The broadcaster assessed the complaint under Standards 1, 6, 7, 9 and 10 and guidelines 7a and 9a of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

Guideline 7a   
This standard is not intended to prevent the broadcast of material that is:

• factual
• a genuine expression of serious comment, analysis or opinion; or
• legitimate humour, drama or satire.

Standard 9 Children’s Interests

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

Guideline 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.

Standard 10 Violence

Broadcasters should exercise care and discretion when dealing with the issue of violence.

Broadcaster’s Response to the Complainant

[5]  TVNZ said that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was shown, including the time of broadcast, the programme’s classification, the target audience, and the use of warnings.

[6]  The broadcaster noted that the Authority had previously stated that Standard 1 was primarily aimed at broadcasts containing sexual material, nudity, violence or coarse language.¹ It argued that the content subject to complaint did not fall into any of these categories. However, it acknowledged that the Authority has also said that it “will consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress”.²

[7]  TVNZ noted that Not Going Out was rated Adults Only and screened after 11pm. It said that the episode had previously screened at 9.30pm without any complaints, which in its view, suggested that the scene was unlikely to offend or distress a significant number of viewers. It argued that the scene subject to complaint was intended to be comedic, and the programme did not suggest that this was an appropriate way to treat a baby.

[8]  For these reasons, the broadcaster declined to uphold the Standard 1 complaint.

[9]  TVNZ noted that Standard 6 applied to individuals or organisations taking part or referred to in programmes. It noted that the characters in the episode were fictional and said that the baby’s guardians would have been aware of what the scene entailed. Accordingly, it declined to uphold the complaint under Standard 6.

[10]  Turning to consider Standard 7, the broadcaster did not consider that the scene subject to complaint encouraged the denigration of, or discrimination against, babies. In any event, it said that Not Going Out was a comedy and was therefore exempt from the requirements of Standard 7 (guideline 7a). Accordingly, the broadcaster declined to uphold this part of the complaint.

[11]  With regard to Standard 9, TVNZ noted that children’s normally accepted viewing times were usually up to 8.30pm, after which broadcasters were permitted to screen AO material. It found that it had adequately considered the interests of child viewers by classifying the episode AO and screening it at 11pm. Accordingly, TVNZ declined to uphold the children’s interests complaint.   

[12]  The broadcaster maintained that the scene subject to complaint did not contain any violence as envisaged by Standard 10. It emphasised that the character was not trying to hurt the baby, but was trying to pacify him; his actions highlighted his “ineptitude” and were intended to be humorous, it said. Accordingly, TVNZ declined to uphold the complaint that Standard 10 had been breached.

Referral to the Authority

[13]  Dissatisfied with the broadcaster’s response, Mr Stewart referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. The complainant maintained that the scene showing the “visible shaking” of the baby, and particularly the baby’s head, breached standards 1, 6, 7, 9 and 10. He said that in New Zealand there was a disturbing history of such shaking causing traumatic brain injury and resulting in the death of infants.

Authority’s Determination

[14]  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 1 (good taste and decency)

[15]  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:

• Not Going Out was rated AO
• the programme was broadcast at 11pm on a Friday
• the programme’s adult target audience
• the expectations of regular viewers.

[16]  The Authority has previously stated (for example, see Yeoman and TVNZ³) that standards relating to good taste and decency are primarily aimed at broadcasts that contain sexual material, nudity, violence or coarse language.

[17]  In our view, the content subject to complaint did not fall within any of these categories. In particular, we do not consider that the scene contained violence, as argued by the complainant. However, we understand Mr Stewart’s concern that broadcasters should not be showing, for comedic or entertainment purposes, a child being shaken, when it is well known that infants are very vulnerable to injury if they are shaken in a violent manner.

[18]  We consider that, on this occasion, the movement of the baby depicted in Not Going Out did not reach a level where it could be considered shaking of a potentially harmful kind. The character was dancing with the baby, moving him from side to side, in an attempt to stop him crying. In our view, his actions attempted to convey, in an exaggerated manner and for comedic effect, his lack of experience and ineptitude in caring for young children.

[19]  For these reasons, and taking the above contextual factors into account, we decline to uphold the complaint that the scene breached Standard 1.

Standard 10 (violence)

[20]  As stated above at paragraph [17], we do not consider that the scene subject to complaint contained any violence. Accordingly, we find that Standard 10 is not applicable, and we therefore decline to uphold this part of the complaint.

Standard 9 (children’s interests)

[21]  Mr Stewart’s concerns relate to what he considered to be the “shaking” of the baby in the programme.

[22]  Standard 9 relates to child viewers and is designed to ensure that they are protected from unsuitable content screened during their normally accepted viewing times. As Not Going Out was classified AO and screened at 11pm, more than two hours after the Adults Only watershed, the standard is not applicable on this occasion.

[23]  Accordingly, we decline to uphold the Standard 9 complaint.

Standard 6 (fairness)

[24]  Standard 6 only applies to people or organisations taking part or referred to in a programme. We note that the scene subject to complaint formed part of a fictional sitcom and that the people involved were actors.

[25]  In these circumstances, we consider that the fairness standard does not apply and we therefore decline to uphold the Standard 6 complaint.

Standard 7 (discrimination and denigration)

[26]  The complainant did not identify any group which he considered had been denigrated or discriminated against. Accordingly, we have no basis on which to uphold the complaint under Standard 7.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
9 August 2011

Appendix

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

1                  Ron Stewart’s formal complaint – 1 April 2011

2                 TVNZ’s response to the formal complaint – 3 May 2011

3                 Mr Stewart’s referral to the Authority – 11 May 2011

4                 TVNZ’s response to the Authority – 1 July 2011

¹See, for example, Golden and Radio New Zealand Ltd, Decision No. 2008-080.

²Practice Note: Good Taste and Decency (BSA, November 2006)

³Decision No. 2010-093