BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
A Man Apart – movie about two American drug enforcement officers fighting an ongoing drug war on the California/Mexico border – contained violent scenes including shootings, car explosions and beatings – allegedly in breach of good taste and decency, law and order, programme classification, children’s interests and violence standards

Findings
Standard 7 (programme classification) – majority of Authority considered the movie’s classification to be borderline but correct – not upheld

Standard 9 (children’s interests) – broadcaster failed to adequately consider the interests of child viewers by broadcasting the movie at 8.30pm on a Saturday – upheld

Standard 10 (violence) – broadcaster failed to exercise sufficient care and discretion when dealing with the issue of violence by broadcasting the movie at 8.30pm on a Saturday – upheld

Standard 2 (law and order) – movie did not encourage viewers to break the law or otherwise promote, condone or glamorise criminal activity – not upheld

Standard 1 (good taste and decency) – subsumed into consideration of Standards 9 and 10

No Order

This headnote does not form part of the decision.

Broadcast

[1]   A movie called A Man Apart was broadcast on TV2 at 8.30pm on Saturday 18 April 2009. The film followed two fictitious American Drug Enforcement Agency (DEA) officers named Sean Vetter and Demetrious Hicks, who were fighting an ongoing drug war on the border between California and Mexico.

[2]   During the movie’s opening credits, background images were shown of people being arrested, drugs, dead bodies and shipping containers. These images were black and white and highly stylised.

[3]   At the beginning of the movie, a Mexican drug lord called Lucero was arrested. A major drug dealer named Diablo took over the business and became a target for Vetter and his team. Vetter was attacked in his house by killers hired by drug cartel members and his wife was killed in the crossfire. Vetter then sought revenge for his wife’s death and went after the new drug lord with the help of his friend Hicks.

[4]   The movie contained a number of violent scenes including murders and beatings, and bodies of mutilated people who had been killed as a result of the drug war. The first violent scene occurred seven minutes into the movie and involved Vetter and other DEA officers bursting into a club in Mexico and arresting the drug lord Lucero. Prior to the DEA bursting into the club, Lucero was shown in a room with a number of companions and armed guards. He was dancing with a female stripper who was wearing a see-through top and a g-string. As the DEA entered the club, a gunfight broke out between Lucero’s guards and the DEA officers and a number of people were shown shooting or being shot.

[5]   The next violent scene occurred 13 minutes into the movie and showed drug cartel members in the desert standing around a plane loaded with drugs. The guards were attacked and killed by members of a rival drug cartel and the drug cargo was taken.

[6]   Sixteen minutes into the movie a man was shown sitting on the edge of a fountain. A woman walked up to him and shot him in the head. He fell backwards into the fountain and she shot him a further three times. Viewers saw the first shot side on and blood could be seen spraying out from the back of the man’s head as he was flung backwards.

[7]   Twenty five minutes into the movie, Vetter was attacked in his house by several armed men while he slept. His wife was caught in the crossfire and she died.

[8]   Forty five minutes into the movie, Vetter and his partner were shown entering a house. Vetter’s partner walked up to a figure sitting on a chair whose head was covered with some cloth. Vetter’s partner removed the cloth to reveal a man whose throat had been deeply cut exposing the inside. As Vetter and his partner walked around the house, they found the bodies of two other men. One man was lying face down with his hands bound with barbed wire and the word “Diablo” cut into his back, while the other deceased man had been shot in the head.

[9]   One hour into the movie, Lucero’s wife and young son were told to flee their house. Their bodyguards were shown putting them into a car which then exploded killing them both.

[10]   Seventy nine minutes into the movie, Vetter found a man who claimed to have killed Vetter’s wife. Vetter was shown viciously beating the man to death, including kicking the man in his head and face repeatedly. After this incident, Vetter was stood down by the DEA.

[11]   The remainder of the movie contained other scenes of violence including shootouts, beatings, stabbings and killings. It also contained frequent use of swear words such as “fuck”, “motherfucker”, “shit” and “nigger”.

[12]   The movie was preceded by a written and verbal warning that stated:

The following programme is rated Adults Only. It contains language that may offend and violence that may disturb.

Complaint

[13]   Joy Stockwell made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the movie breached broadcasting standards.

[14]   The complainant argued that it was a breach of good taste and decency to broadcast the movie at 8.30pm, because it was a “blood riddled, foul mouthed, despicable movie with no socially redeeming aspects”. She considered that if the movie was going to be broadcast, it should have been played no earlier than 11.30pm.

[15]   Ms Stockwell argued that the movie breached Standard 2 (law and order), because it had glorified crime and normalised the violent behaviour contained in it. She believed that the movie depicted techniques of committing crime in a manner that invited imitation and did not respect the principles of law that sustain society.

[16]   The complainant noted that a scene involved one character telling a guard to “cut his eyes out”, referring to Vetter. She contended that this scene depicted an ingenious and unfamiliar method of inflicting pain contrary to guideline 2d of the law and order standard. She also considered that the movie had contained the realistic portrayal of anti-social behaviour in a manner that glamorised violence and serious crime.

[17]   Turning to Standard 7 (programme classification), Ms Stockwell said that, to her recollection, the movie had not been preceded by a clear warning and that, in any event, the movie was unsuitable for broadcast at 8.30pm.

[18]   With respect to Standard 9 (children’s interests), the complainant noted that guideline 9c stated that broadcasters should have regard to the fact that children stay up later on Friday and Saturday nights and that special attention should be given to providing adequate warnings during these periods. She argued that TVNZ had not adequately considered the interests of child viewers and reiterated that the movie should not have been broadcast before 11.30pm, if at all.

[19]   Ms Stockwell contended that the broadcaster had breached Standard 10 (violence). She noted that guideline 10a stated that broadcasters should ensure that any violence shown was not gratuitous and was justified by the context. She argued that the broadcaster had not exercised sufficient care and discretion when dealing with the issue of violence.

Standards

[20]   The complainant nominated Standards 1, 2, 7, 9 and 10 and guidelines 1a, 1b, 2a, 2c, 2d, 2e, 7a, 9c, 9e, 10a, 10b and 10c of the Free-to Air Television Code of Broadcasting Practice. These provide:

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.

Guidelines

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.

1b   Broadcasters should consider – and if appropriate require – the use of on-air visual and verbal warnings when programmes contain violent material, material of a sexual nature, coarse language or other content likely to disturb children or offend a significant number of adult viewers. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

Guidelines

2a   Broadcasters must respect the principles of law which sustain our society.

2c   Programmes should not depict or describe techniques of crime in a manner which invites imitation.

2d   Ingenious devices for, and unfamiliar methods of, inflicting pain, injury or death, particularly if readily capable of easy imitation, should not be shown, except in exceptional circumstances which are in the public interest.

2e   The realistic portrayal of anti-social behaviour, including violent and serious crime and the abuse of liquor and drugs, should not be shown in a way that glamorises these activities.

Standard 7 Programme Classification

Broadcasters are responsible for ensuring that programmes are appropriately classified; adequately display programme classification information; and adhere to time-bands in accordance with Appendix 1.

Guideline 7a

Broadcasters should ensure that appropriate classification codes are established and observed (Appendix 1). Classification symbols should be displayed at the beginning of each programme and after each advertising break.

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.

Guidelines

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.

9e   Scenes and themes dealing with disturbing social and domestic friction or sequences in which people – especially children – or animals may be humiliated or badly treated, should be handled with care and sensitivity. All gratuitous material of this nature must be avoided and any scenes which are shown must pass the test of relevancy within the context of the programme. If thought likely to disturb children, the programme should be scheduled later in the evening.

Standard 10 Violence

In the preparation and presentation of programmes, broadcasters are required to exercise care and discretion when dealing with the issue of violence.

Guidelines

10a   Broadcasters should ensure that any violence shown is not gratuitous and is justified by the context.

10b   Broadcasters should be mindful of the cumulative effect of violent incidents and themes and should avoid any impression that violence is dominating a single programme, a programme series, or a line-up of programmes screened back-to-back.

10c   When compiling promos (trailers), broadcasters should be mindful that scenes containing incidents of violence or other explicit material which may be acceptable when seen in the total context of a programme may, when extracted and shown out of context for promotional purposes, be unacceptable in terms of both the standards and the time-band in question.

Broadcaster's Response to the Complainant

[21]   TVNZ stated that contextual factors were important when considering whether a broadcast had breached Standard 1. It noted that the movie was classified AO, broadcast at 8.30pm, aimed at an adult target audience and had been preceded by a verbal and written warning.

[22]   The broadcaster noted that it was permitted to broadcast AO-rated programmes at 8.30pm and that the AO symbol had screened after the conclusion of each advertisement break.

[23]   TVNZ argued that the movie was not dominated by violence and that “most [violent] scenes were discreet” and had not included “blood and gore”. It said that the only violent scene to show blood and gore before 9pm was when the man was assassinated while sitting on the fountain. It said the scene was not shown in close up or dwelt on. It considered that the scene would have been expected by viewers.

[24]   The broadcaster noted that the scene in which Vetter’s wife was killed happened at night and was “relatively discreet”. It argued that the violence “was the work of criminals and the heroes in the movie are policemen trying to catch these criminals”. It considered that, “even the violence performed by Vetter when he finds the man who killed his wife is not condoned in the movie”, noting that Vetter had his badge taken from him and was stood down after the incident.

[25]   TVNZ argued that the movie was clearly fictional and it declined to uphold the complaint that the item breached standards of good taste and decency.

[26]   With respect to Standard 2 (law and order), the broadcaster said that for a breach of this standard to occur, a broadcast must actively promote disrespect for the law. It maintained that it was clear that the movie did not promote disrespect for the law, as it involved the DEA trying to catch criminals, and that there was a clear distinction between right and wrong.

[27]   TVNZ pointed out the movie was fictional and argued that it had not described new techniques of committing a crime in a way that invited imitation. It declined to uphold the Standard 2 complaint.

[28]   Dealing with Standard 7 (programme classification), the broadcaster reiterated that A Man Apart was classified AO and that the AO symbol had appeared at the beginning of each part after the advertisement breaks. It pointed out that the programme was preceded by a written and verbal warning. The broadcaster argued that Standard 7 had not been breached and it declined to uphold the programme classification complaint.

[29]   Turning to Standard 9 (children’s interests), TVNZ stated that 8.30pm was considered adults only time “even on Saturday night” and that broadcasters were permitted to screen AO material after this time. It argued that the first “AO violence” screened 16 minutes into the programme and that the tenor of the movie had been well established by that point. It considered that parents who had not seen the AO warning would have been able to surmise that the movie was not appropriate for child viewers before the scene occurred. TVNZ declined to uphold the Standard 9 complaint.

[30]   With respect to Standard 10 (violence), the broadcaster noted that the movie had received an R16 classification when it screened in New Zealand cinemas. It argued that the film was not dominated by violence and that there was more to the storyline than just violent scenes.

[31]   TVNZ contended that the violence shown in the movie was consistent with material shown in other AO-classified movies and that it had taken adequate care by warning viewers and classifying the film AO. It declined to uphold the complaint that the broadcast breached Standard 10.

Referral to the Authority

[32]    Dissatisfied with TVNZ’s response, Ms Stockwell referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. The complainant reiterated her argument that the movie was inappropriate for broadcast at 8.30pm and had breached broadcasting standards.

Authority's Determination

[33]   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 7 (programme classification)

[34]   Standard 7 states that broadcasters are responsible for ensuring that programmes are appropriately classified, adequately display programme classification information, and adhere to time-bands in accordance with Appendix 1 of the Free-to-Air Television Code.  Two types of AO classification exist, they are:

AO – Adults Only

Programmes containing adult themes and directed primarily at mature audiences. AO programmes may be screened between midday and 3pm on weekdays (except during school and public holidays as designated by the Ministry of Education) and after 8.30pm until 5am.

AO9.30pm – Adults Only 9.30pm–5am

Programmes containing stronger material or special elements which fall outside the AO classification. These programmes may contain a greater degree of sexual activity, potentially offensive language, realistic violence, sexual violence, or horrific encounters.

[35]   A majority of the Authority (Joanne Morris and Paul France) considers that the movie’s AO classification was marginal and bordered on AO9.30pm. However, the majority finds that, while the movie contained graphic and realistic violence, the film’s content was reasonably consistent with viewers’ expectations of the action movie genre.

[36]   In light of the broadcasters right to freedom of expression contained in the Bill of Rights Act 1990, the majority declines to uphold the Standard 7 complaint.

[37]   A minority of the Authority (Tapu Misa and Mary Anne Shanahan) considers that the movie should have been classified AO9.30pm because of the substantial amount of realistic and graphic violence. In the minority’s view, the level of violence in the movie made it unsuitable for screening at 8.30pm, because it was not consistent with what most viewers would expect to view in that timeslot. The minority would uphold the complaint that the movie was incorrectly classified.

Standard 9 (children’s interests)

[38]   Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times, which are usually up to 8.30pm. However, guideline 9a states that broadcasters should have regard to the fact that children tend to stay up later than usual on Friday and Saturday nights.

[39]   In the Authority’s view, A Man Apart should not have been broadcast at 8.30pm on a Saturday night, because of the quantity of violent material it contained within the first hour. It notes that within 13 minutes of the film starting, drug cartel members were shown being shot to death and that 16 minutes into the movie a man was shown being shot at close range, with blood spraying from the back of his head, and then shot another three times.

[40]   For this reason, the Authority finds that the broadcaster failed to adequately consider the interests of child viewers because it did not have regard to the fact that children tend to stay up later on Friday and Saturday nights.

[41]   Having reached this conclusion, the Authority must consider whether to uphold this part of the complaint as a breach of Standard 9 (children’s interests).

[42]   The Authority acknowledges that upholding the children’s interests complaint would place a limit on the broadcaster’s right to freedom of expression.

[43]   In Harrison and TVNZ,¹ the Authority determined that upholding a complaint under Standard 9 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 9 in the following terms:

In the Authority’s view, the purpose of the children’s interests standard is to protect children from broadcasts which might adversely affect them.

[44]   With that in mind, the Authority must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 9 on this occasion. It finds that upholding a breach of the children’s interests standard would ensure that broadcasters pay special attention to the fact that children tend to stay up later on Friday and Saturday evenings and that they should not broadcast programmes with the type of excessive and realistic violent content contained in A Man Apart at 8.30pm on these nights.

[45]   In this respect, upholding this part of the complaint clearly promotes the objective of Standard 9, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression. The Authority upholds the Standard 9 complaint.

Standard 10 (violence)

[46]   Standard 10 states that broadcasters are required to exercise care and discretion when dealing with the issue of violence. As outlined under the Authority’s consideration of children’s interests, A Man Apart was inappropriate for broadcast at 8.30pm on a Saturday evening given the amount of violence it contained.

[47]   As a result, the Authority also finds that the broadcaster did not exercise sufficient care and discretion when dealing with the issue of violence on this occasion. Having reached this conclusion, the Authority must consider whether to uphold this complaint as a breach of Standard 10.

[48]   The Authority acknowledges that upholding the Standard 10 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Knight v TVWorks,² the Authority determined that upholding a complaint under Standard 10 would be prescribed by law and a justified limitation on the broadcaster's right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision the Authority described the objective of Standard 10 as follows:

...the violence standard exists to ensure that broadcasters use care and discretion to exclude unsuitable violent material and to promote the use of warnings where necessary to protect viewers – particularly child viewers.

[49]   The Authority has found above that the broadcaster did not have regard to child viewers by broadcasting the film in the 8.30pm timeslot on a Saturday evening. In these circumstances, the Authority considers that upholding Ms Stockwell’s complaint clearly promotes the objective of Standard 10 as outlined above, and would be a reasonable and proportionate limit on TVNZ’s freedom of expression. Accordingly, the Authority upholds the Standard 10 complaint.

Standard 2 (law and order)

[50]   The Authority has stated on a number of occasions that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, condone or glamorise criminal activity (e.g. Gregory and TVNZ³).

[51]   In the Authority’s view, the fictional movie did not contain any material that could be said to have encouraged viewers to break the law or which promoted, condoned or glamorised criminal activity. Accordingly, it declines to uphold the complaint that the broadcast breached Standard 2.

Standard 1 (good taste and decency)

[52]   In the Authority’s view, the complainant’s concerns relating to good taste and decency have been adequately addressed in its consideration of the children’s interests and violence standards. Accordingly, it subsumes it consideration of Standard 1 into its consideration of Standards 9 and 10.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of A Man Apart on 18 April 2009 breached Standards 9 and 10 of the Free-to-Air Television Code of Broadcasting Practice.

[53]   Having upheld the complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.

[54]   Ms Stockwell considered that the Authority should make orders against TVNZ and impose a large fine, because of the “offence” it had caused by broadcasting A Man Apart at 8.30pm on a Saturday night.

[55]   TVNZ stated that it had reclassified A Man Apart AO9.30pm and that the Authority’s decision had been “a salutary lesson for the departments involved”. It said that its appraisal department was re-examining its appraisal process in an effort to improve its procedures.

[56]   The broadcaster contended that the publication of the Authority’s decision was sufficient and that no order was necessary.

[57]   On this occasion, the Authority agrees with the broadcaster and finds that the publication of its decision is sufficient in the circumstances. The Authority considers that this decision will provide guidance and serve as a reminder to TVNZ that it needs to exercise adequate care and discretion when broadcasting movies that contain a high level violence on Friday or Saturday evenings.

Signed for and on behalf of the Authority

Joanne Morris
Chair
25 November 2009

Appendix

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

1.          Joy Stockwell’s formal complaint – 21 April 2009

2.         TVNZ’s response to the formal complaint – 19 May 2009

3.         Ms Stockwell’s referral to the Authority – 17 June 2009

4.         TVNZ’s response to the Authority – 29 July 2009

5.         Ms Stockwell’s submissions on orders – 22 October 2009

6.         TVNZ’s submissions on orders – 28 October 2009

¹Decision No. 2008-066

²Decision No. 2008-137

³Decision No. 2005-133