Sutton and Television New Zealand Ltd - 2009-159
- Peter Radich (Chair)
- Leigh Pearson
- Tapu Misa
- Mary Anne Shanahan
- Norman and Barbara Sutton
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
The Take – contained a scene in which a man and a woman were shown having sex on a chair – allegedly in breach of good taste and decency
Standard 1 (good taste and decency) – contextual factors – not upheld
This headnote does not form part of the decision.
 An episode of a mini-series called The Take was broadcast during TV One’s Sunday Theatre timeslot at 8.30pm on Sunday 18 October 2009. Twenty-two minutes into the episode, a brief scene of a man and a woman having sex on a chair was shown. The couple were fully clothed.
 The programme was preceded by the following written and verbal warning:
The following programme is rated Adults Only. It contains frequent use of language, sex scenes and nudity that may offend and graphic violence that may disturb some people.
 Norman and Barbara Sutton made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the sex scene breached standards of good taste and decency.
 TVNZ assessed the complaint under Standard 1 and guidelines 1a and 1b 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.
1a Broadcasters will take into account current norms of good taste and decency bearing in mind the context in which any content occurs and the wider context of the broadcast e.g. programme classification, target audience, type of programme and use of warnings etc.
1b The use of visual and verbal warnings should be considered when content is likely to disturb or offend a significant number of viewers except in the case of news and current affairs, where verbal warnings only will be considered. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.
Broadcaster's Response to the Complainants
 TVNZ stated that The Take was in the Sunday Theatre slot, which showcased the best of movies for adults on TV One. “These movies are considered TV One’s premier product and TV One like to present them in as original format as possible for the enjoyment of loyal Sunday Theatre viewers”. To achieve this, the content of the movie was monitored to ensure that the transition between PGR and AO time was not dramatic, it said. TVNZ noted that the sex scene subject to complaint occurred at 8.56pm, and stated that after 9pm the movie screened unedited.
 The broadcaster said that The Take was a made for television mini-series about a psychopathic ex-convict and his cousin who built a drug empire that gave them access to vast sums of money. It noted that the programme was classified AO, which meant that it contained adult themes and was directed primarily at mature audiences.
 TVNZ pointed out that the programme was preceded by a written and verbal warning for language, sex scenes, nudity and graphic violence. It argued that the sex scene “was of a level that was acceptable in AO-rated material” and that it was neither graphic nor unexpected in the context of the programme. As a result, the broadcaster declined to uphold the Standard 1 complaint.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr and Mrs Sutton referred their complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 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.
 When the Authority considers an alleged breach of good taste and decency, it takes into account the context of the broadcast. On this occasion, the relevant contextual factors include:
- The Take was broadcast at 8.30pm
- the programme was classified AO
- it was preceded by a verbal and written warning
- the programme had an adult target audience
- audience expectations of the Sunday Theatre timeslot.
 In the Authority’s view, the programme was preceded by a clear and comprehensive warning that was designed to inform viewers about the type of material contained in the broadcast. Viewers could then make an informed decision about whether to watch the programme.
 The Authority notes that the scene subject to complaint involved a consenting couple and contained no nudity. It considers that the scene was brief, inexplicit and relevant to the programme’s storyline.
 Taking the above contextual factors into account, the Authority declines 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
23 March 2010
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Norman and Barbara Sutton’s formal complaint – 20 October 2009
2. TVNZ’s response to the formal complaint – 17 November 2009
3. Mr and Mrs Sutton’s referral to the Authority – 8 December 2009
4. TVNZ’s response to the Authority – 21 January 2010