BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A controversial exhibition of works by American artist Keith Haring, then showing at Wellington City Gallery, was featured on Backch@t. The programme included an interview with the Rev Graham Capill who had claimed the works were offensive. During the interview, he held up to the camera a drawing by Haring which he claimed depicted bestiality. The programme was broadcast on TV One at midday and 10.40 pm on 25 April 1999.

Mr Thomas complained to Television New Zealand Limited, the broadcaster, that the footage of the drawing was indecent and tasteless, particularly as it was broadcast at a time when children were able to view the programme. Because the programme was pre-recorded, there had been time to edit or obscure the picture, he wrote.

TVNZ responded that Mr Capill, by insisting that TVNZ would never show such a picture on television, had challenged the broadcaster to delete it from the tape. His challenge made it "ethically impossible" for TVNZ to delete the picture because that would have acknowledged that he was right, the broadcaster wrote, when it had a statutory obligation to be impartial. It declined to uphold the complaints, citing the nature of the programme and the time at which the drawing was produced as factors which would disincline children from watching it.

Dissatisfied with TVNZ’s response, Mr Thomas referred his complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, a majority of the Authority declines to uphold the complaint that the midday broadcast of Backch@t breached standards G2 and G12 of the Television Code of Broadcasting Practice, and the Authority unanimously declines to uphold the complaint that the 10.40 pm broadcast of Backch@t breached the same standards.

Decision

The members of the Authority have viewed a tape of the items complained about, and have read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaints without a formal hearing.

A segment on Backch@t broadcast on 25 April focussed on the controversy surrounding the exhibition of works by American artist Keith Haring which was then showing at Wellington City Gallery. It included an interview with the Rev Graham Capill, who had called for the exhibition to be banned, and the gallery’s director, whose dismissal he had called for. During the interview, Mr Capill referred to one of the offensive exhibits and challenged the presenter to show an image of it. The camera then focussed on a drawing being held up by Mr Capill. The segment was broadcast at midday, and repeated at 10.40 pm.

Mr Thomas, noting that the picture depicted "a human figure having intercourse with a four legged animal (bestiality)", complained that the cameras were moved in closer to the picture when it was held up by Mr Capill, with the presenter’s permission. He wrote that TVNZ had breached the Broadcasting Act 1989 by not observing standards of good taste and decency.

The programme had a PGR rating, Mr Thomas noted, and was initially shown at 12 noon. The picture should not have been shown at that time, when children were able to view the programme, he maintained. He emphasised that the programme was repeated at 10.40 pm. "No attempt had been made to edit or obscure the particular offending picture", he wrote. Mr Capill had informed him that the programme was pre-recorded on 23 April, he wrote, and in Mr Thomas’s view, TVNZ had had plenty of time to edit or obscure the image.

TVNZ responded that Mr Capill had suddenly produced the copy of the Haring picture, which he regarded as the most offensive on display, and held it up for the camera. At the same time, it wrote, he challenged TVNZ to cut it out of the programme for taste and decency reasons. The broadcaster continued:

…in issuing the challenge Mr Capill made it impossible for TVNZ to contemplate deleting the picture, because had it done so it would implicitly acknowledge that Mr Capill was right – which contradicts TVNZ’s statutory obligation to be neutral and impartial when dealing with issues of public controversy… This was … a matter of ethics.

The broadcaster considered the complaints in the context of standards G2 and G12 of the Television Code of Broadcasting Practice. The standards require broadcasters:

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.

G12  To be mindful of the effect any programme may have on children during their normally accepted viewing times.

In considering standard G2, TVNZ said the fact that the debate was in progress suggested it was not possible to be unequivocal about taste and decency. A significant proportion of the community did not regard the exhibition as straying beyond currently accepted norms of decency and taste, it wrote. Given the unusual circumstances in which the picture had been displayed, and taking into account the ethical requirement to leave the picture in the programme to ensure that TVNZ’s integrity on the issue was maintained, the broadcaster said it found it difficult to establish a breach of standard G2.

Standard G12 applied only to the midday programme, it said. The nature of the programme was such that it did not normally attract the young people envisaged by the standard. TVNZ added the picture was not displayed until well into the item, by which time the subject matter was well established and parents had ample opportunity to prevent children viewing the debate if they wished. The broadcaster said that while the picture probably did reflect bestiality, it was obscure, not immediately recognisable, occupied only about one-third of the screen, and was visible only for a brief time. It declined to uphold the complaints.

In referring his complaint to the Authority, and in particular reference to TVNZ’s comment that a significant proportion of the community did not regard the exhibition of the pictures as straying beyond norms of decency and taste, Mr Thomas wrote: "It is a law of this country that acts or images of bestiality are banned". He failed to see, he said, how TVNZ’s integrity would have been compromised had it obscured the picture.

Mr Thomas questioned the point in having programme classifications if broadcasters showed sexually explicit pictures without warning. He also asked about protection of child viewers whose parents did not supervise their viewing on a Sunday afternoon. The dark background to the picture made very clear to a viewer what the picture depicted, he concluded.

In reply, TVNZ emphasised that, in the context of the events in which the display of the picture had occurred, its removal would have been tantamount to accepting that it was indecent, and consequently that those who held that view were correct. It reiterated that the broadcaster had been placed in a position where it became "ethically impossible for it to delete the picture even if it had wanted to".

In a final comment, Mr Thomas contended that s.3 of the Films, Videos and Publications Classifications Act 1993 made it illegal for TVNZ to have shown the offending picture. In addition, he pointed out, the broadcaster was irresponsible in regard to its obligation under the classification code to have shown "this programme at noon with the material that was in this particular episode" in PGR time.

Responding, TVNZ said that the controversial picture had been left in the item to demonstrate its neutrality on the issue, not to win an argument with Mr Capill. Its neutrality would have been placed in question had the programme acted upon Mr Capill’s view that the picture was indecent, it concluded.

TVNZ had clearly been in breach of the Films, Videos and Publications Classifications Act, Mr Thomas replied, noting that he had no argument with the broadcaster on the grounds of its neutrality.

The Authority’s Findings

Standard G2 – good taste and decency

As required by standard G2, the Authority takes into account the context in which the footage occurred. First it notes that the broadcasts were on TV One and that the Backch@t programme is a serious arts and current affairs programme presently broadcast on Sunday at midday and, again, later on Sunday evening. Other contextual factors of relevance to the Authority are that the topic of the Haring exhibition was directed to adult viewers, and some warning about the content of the topic was given in the presenter’s introduction to the programme.

Midday Programme

The Authority is divided in its decision on the application of standard G2 to the midday broadcast. A majority of the Authority considers that the essence of the discussion which took place in the broadcast segment was whether the Haring art exhibition should have been shown in a place to which children had access. In this instance, the segment provided a forum in which the art was under serious discussion. It was a reasonable and even-handed discussion about the exhibition which the majority considers provided background to a public debate. Furthermore, it also provided, in the majority’s view, a context in which it was not inappropriate to show the drawing. What was shown to viewers was a stylised, symbolic image. The majority considers that, without the discussion itself referring to bestiality, the act said by Mr Capill to be depicted in the drawing might not have been discernible to viewers. In addition, the majority considers that the matter being discussed raised an issue of freedom of speech. It appreciates that the forum was an appropriate place for the depiction to be shown, because it assisted in both understanding the artist’s works, and the nature of the debate which had polarised certain sections of the community.

Furthermore, taking into account the contextual matters referred to above, it considers that the programme would have held little interest for child viewers.

The majority notes the complainant’s view that "acts or images of bestiality are banned", and that TVNZ’s broadcasts were in breach of the Films, Videos, and Publications Classifications Act 1993, s.3, and observes that this matter is outside its jurisdiction.

The majority declines to uphold the complaint about the midday broadcast under standard G2.

A minority of the Authority disagrees. In its view, the image broadcast was unsuitable for inclusion in a programme classified as PGR and broadcast during PGR time when children were likely to be watching television. It considers the breach was exacerbated by the fact that the programme was pre-recorded and the broadcaster had the opportunity to alert viewers to the possibly objectionable content. TVNZ did not avail itself of that opportunity. Furthermore, the minority notes that, paradoxically, the presenter had suggested at the beginning of the programme that there was material in the exhibition which it would not be able to show.

The minority is strengthened in its view by the fact that the camera went into ‘close-up’ mode to better film the drawing, the representation was clear, and was on screen for a sustained period. Accordingly, the minority upholds the complaint that standard G2 was breached by the broadcast at midday.

10.40pm Programme

As the second programme was broadcast late in the evening during AO time, the Authority is unanimous that no breach of standard G2 occurred in relation to the 10.40pm broadcast.

Standard G12 – mindful of children

Turning next to standard G12, the Authority questions whether TVNZ demonstrated that it was mindful of the effect on children when it broadcast the programme.

Midday Programme

The Authority is also divided in its decision on this programme. A majority of the Authority considers that the programme broadcast at midday was unlikely to have been of interest to children. The matters taken into account in the majority’s consideration of the complaint under standard G2 are equally applicable, it considers, to standard G12. The majority appreciates that the programme provided a useful debate on what was acceptable to the community in the context of publicly-accessible material, such as the Haring exhibition, and it considers the programme was educative and informative. As a consequence, the broadcast of the drawing held up by Mr Capill in the context in which it was shown did not threaten the standard in any way. Moreover, the majority observes that any children watching would have been unlikely to have been adversely affected by the broadcast. The drawing was stylised and inexplicit, and was shown in the context of an adult debate which made it absolutely clear that the conduct said to be depicted in the drawing was not acceptable to the community. Furthermore, the sexual content of the drawing was sufficiently inexplicit that the majority considers many viewers would not have readily identified the practice depicted. A majority therefore declines to uphold the standard G12 complaint in relation to the midday broadcast.

A minority disagrees. It believes that Sunday at midday clearly is a time when many children would be viewing or have access to television, and accordingly PGR was an inappropriate classification for this programme. The subject of bestiality arose both in the drawing depicted and in the ensuing debate. The minority believes a discussion on this topic is inappropriate for children’s normally accepted viewing times and that TVNZ failed to demonstrate that it had been mindful of children when it scheduled the broadcast at this hour. For those reasons the minority upholds the complaint that the midday broadcast of the programme was in breach of standard G12.

10.40pm Programme

As the second programme was broadcast late in the evening during AO time, the Authority is unanimous that no breach of standard G12 occurred in relation to the 10.40pm broadcast.

For the reasons set forth above, a majority of the Authority declines to uphold the complaint that the midday broadcast of Backch@t breached standards G2 and G12, and the Authority unanimously declines to uphold the complaint that the 10.40 pm broadcast of Backch@t breached those standards.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
13 September 1999

Appendix

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

1. Nick Thomas’s Complaint to Television New Zealand Limited – 26 April 1999

2. TVNZ’s Response to the Formal Complaint – 13 May 1999

3. Mr Thomas’s Referral to the Broadcasting Standards Authority – 19 May 1999

4. TVNZ’s Response to the Authority – 25 May 1999

5. Mr Thomas’s Final Comment – 31 May 1999

6. TVNZ’s Further Comment – 8 June 1999

7. Mr Thomas’s Response – 14 June 1999