Valenta and Television New Zealand Ltd - 2002-154
- P Cartwright (Chair)
- J H McGregor
- R Bryant
- Rod Valenta
ProgrammeM2: "One Night in New York City"
BroadcasterTelevision New Zealand Ltd
M2 – "One Night in New York City" – music video – theme of drug rape – portrayal of criminal sexual activity – breach of good taste and decency
Standard 1 – context, including offensive language and behaviour – majority uphold
Standard 2 – Guideline 2e – anti-social behaviour portrayed but not glamorised – no uphold
This headnote does not form part of the decision.
 A music video by the band The Horrorists, entitled "One Night in New York City", was broadcast on M2 on TV2 at approximately 4.25am on 10 February 2002. The lyrics told the story of a 15-year-old girl who visited New York City, and went home with a man she met at a nightclub. The man gave her a pill, which she took, and then she asked him what it was. He replied, "Ecstasy", and the lyrics continued, "And then he fucked her all night, fucked her all night …"
 Rod Valenta complained to Television New Zealand Ltd, the broadcaster, that the video breached standards of good taste and decency, and portrayed criminal sexual activity.
 TVNZ declined to uphold the complaint. It said mainly mature young people would be watching at 4.25am. It did not accept the complainant’s interpretation of the video as an anti-social work portraying criminal sexual activity. Rather, the video was a "cautionary tale directed at vulnerable young women going out on the town", TVNZ said.
 Dissatisfied with TVNZ’s response, Mr Valenta referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons given, a majority of the Authority upholds the aspect of the complaint that the broadcast breached Standard 1 of the Television Code. It declines to uphold any other aspect of the complaint.
 The members of the Authority have viewed a tape of the item complained about and have read the correspondence listed in the Appendix. The Authority determines this complaint without a formal hearing.
 A music video by the band The Horrorists, entitled "One Night in New York City", was broadcast on M2 on TV2 at approximately 4.25am on 10 February 2002. TVNZ described the video as:
a hybrid work combining what [is] virtually a spoken monologue with (electronic) instrumental music and pictures of New York City.
 The lyrics told the story of a 15-year-old girl who visited New York City, and went home with a man she met at a nightclub. The man gave her a pill, which she took, and then she asked him what it was. He replied "Ecstasy" and the lyrics continued, "And then he fucked her all night, fucked her all night …"
 Rod Valenta complained to Television New Zealand Ltd, the broadcaster, that the video breached standards of good taste and decency, and portrayed criminal sexual activity. He said the theme of the clip was picking up and drugging a girl, and then raping her.
 The complainant said:
Surely this clip would not have been passed by the censors, and must have been an illegal screening by late night staff.
 Mr Valenta said the clip was "completely unacceptable for free-to-air television, especially during a weekend when children can view this damaging material".
 TVNZ assessed Mr Valenta’s complaint under Standard 1 of the Free-to Air Television Code of Broadcasting Practice, which reads:
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.
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. The examples are not exhaustive.
The Broadcaster’s Response to the Complainant
 TVNZ noted that M2 was a six-hour programme, broadcast three nights a week, which featured material "likely to appeal to young adults with a keen interest in contemporary music". The programme was broadcast live from studios in Auckland, and included a large number of pre-recorded inserts. "One Night in New York City" was one such insert, it said.
 TVNZ acknowledged that the phrase "fucked her all night" would be offensive in the context of a programme directed at a family or child audience. At four in the morning, however, the audience would "almost exclusively be confined to mature young people," it said.
 TVNZ did not accept the complainant’s interpretation of the video as an anti-social work portraying criminal sexual activity. In TVNZ’s view, it was a "cautionary tale directed at vulnerable young women going out on the town".
 After providing a transcript of the lyrics of the song, TVNZ noted that the lyrics stressed the innocence of the girl – that she was 15, that she was loved by her parents, that a trip to the city was a rare event, and that she was willing to accompany a man she hardly knew to his room, then to take a pill offered to her, asking what it was only when it was too late.
 TVNZ continued:
It seem to the [complaints] committee that the use of the word "fucked" was deliberate to emphasise the exploitation of the girl. Had the phrase "made love to" been used in its place a quite different and much gentler message would emerge – a message quite inappropriate for an item which appears to provide a warning for young women who are innocent and unwary.
 TVNZ acknowledged that the phrase "fucked her all night" was "startling" when viewed in isolation. However, it said, given the time of broadcast and in the context of a programme which "endeavour[ed] to serve a young adult audience with material which is often experimental and innovative", the video did not breach the standard. TVNZ concluded:
Who, [the complaints committee] wondered, would actually be harmed by such a broadcast at 4.25 in the morning?
 TVNZ declined to uphold the complaint.
The Complainant’s Referral to the Authority
 In his referral to the Authority, Mr Valenta included a copy of a letter written to TVNZ in response to its decision not to uphold his complaint. He asked that the Authority take it into consideration. In it he wrote:
I cannot believe that you commented "… who would actually be harmed by such a broadcast at 4.25 in the morning?" This is utter rubbish! Are children unable to operate video recorders? Perhaps your committee may have difficulty with simple programming, but modern children do not. Free to air television must meet high standards at all times for this very reason. What about shift workers, invalids and tourists who are fully awake at that time of night? You know the demographics and percentages of viewers that watch late night television. Get real.
 Mr Valenta said the broadcast "crossed the boundary", was offensive and portrayed under-age drug rape. He said he assumed TVNZ’s decision to assess his complaint under Standard 1 was a "ploy to get away with the criminal portrayal outlined in the clip." He said:
This was hardly a safety warning to young girls, more of a stimulant to misguided dregs of society. I sincerely hope there is no increase in drug rape due to this portrayal.
The Broadcaster’s Response to the Authority
 In its response to the Authority, TVNZ emphasised that the "unusual and experimental piece" was screened at 4.25am.
 In relation to Mr Valenta’s argument that children can operate video-recorders, it said:
With respect to Mr Valenta his argument … is not valid. Were that argument to be carried through to its logical conclusion Free-to-Air Television would never be able to screen anything at any hour of the day which might be considered unsuitable for young viewers.
 TVNZ said a "contract" existed between broadcasters and the viewing audience, which placed responsibilities on both parties. It said:
Television stations, through the use of the classification system, by attaching warnings, and by choosing carefully the time of the day when a programme may screen, ensure that those who have children in their care can make informed decisions about what children will be allowed to see. The viewing audience, as it should, has the ultimate responsibility for deciding what will be watched based on the information broadcasters provide.
 In relation to Mr Valenta’s concern for shift workers, invalids and tourists, TVNZ noted that M2 screened on Thursday, Friday and Saturday nights only, and that there were always alternatives available on free-to-air television. It said:
We submit that those interested in modern music are entitled to have their interest reflected on television along with all other viewers and that it is not an unreasonable imposition on those other viewers to schedule such material during the very early hours of the morning.
 TVNZ said it acknowledged that "One Night in New York City" was not suitable viewing for children, and would probably cause offence to a "considerable number of adults" as well. However, it said:
it was broadcast in a niche slot intended to appeal only to those with an interest in developments in modern music. While the very clear enunciation of the monologue revealed a theme that some may find shocking, … similar themes and similar language is far from rare in the often more muffled lyrics of, particularly, rap music.
The Complainant’s Final Comment
 Mr Valenta disputed TVNZ’s contention that his argument about children being able to operate video-recorders was not valid. He said:
When children want to catch the latest and best video releases, they observe the "trailer ads" (which saturate evening viewing in an effort to attract M2 viewers) and set their videos to record the night show.
 With regard to TVNZ’s argument that there was a "contract" between broadcasters and the viewing audience, Mr Valenta said:
There has always been an obligation for good parents to not allow their children to stay up late and watch adult time slot programmes, but this is purely a domestic issue, nothing at all to do with any "agreement" between broadcasters and the public. The ultimate responsibility for preventing television content that breaches broadcasting standards is between the broadcaster and the enforcement authority.
 Mr Valenta submitted that the music video was "offensive and immoral" in any context. In experimenting with the new and unusual, it was not necessary to "flaunt the standards of good taste, decency or legality," he said.
The Broadcaster’s Further Letter to the Authority
 As the Authority advised TVNZ that it considered the complainant’s complaint raised a question about whether Standard 2 had been breached, it requested TVNZ’s comments on this point. The Authority also asked TVNZ for its views on whether a warning for the programme would have been appropriate and for information about the likely audience composition at the time of the broadcast.
 Standard 2 provides:
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.
 In relation to Standard 2, TVNZ advised that:
If it is accepted that the tale is a cautionary one then we submit that screening it is not contrary to the principles of law which sustain our society. The lyrics (especially in describing the sex act) can hardly be said to glamorise the activity.
 TVNZ also explained its view that warnings should most often be attached to programmes at times when viewers likely to be offended or disturbed by the content would be watching. TVNZ said that the video had been screened at a time when "the more sensitive people in the community" were unlikely to be watching. TVNZ added that the emphasis in M2 had, at that time "moved to more experimental and innovative type[s] of ‘music’ ".
 TVNZ also provided the Authority with ratings information about M2 at the time the video was broadcast, which showed that the audience for the programme was very small.
The Authority’s Determination
 When it determines a complaint that a broadcast contravenes Standard 1 of the Television Code, the Authority is required to determine whether the material complained about breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but does not determine whether the programme breached the standard. Accordingly, the Authority has considered the context in which the music video complained about was broadcast.
 Relevant contextual matters on this occasion include the time of the broadcast (at 4.25am in the morning), the nature of the broadcast (a music video), M2’s target audience of young adults and the small size of the audience watching the broadcast (as indicated by ratings information). The Authority also recognises that viewing music videos is generally accepted as mainstream contemporary entertainment for young adults, and that music videos often include material which is challenging.
 Against this background, a majority of the Authority notes that the music video included the repetition four times of the line "he fucked her all night", and told a story about the drug rape of a young under-aged girl, following the use of the Class B drug "Ecstasy". The Authority was invited by TVNZ to accept that the video was a cautionary tale. However, a majority considers that this view is not supported by either the visuals or the lyrics - which were delivered in a clearly enunciated monologue without emotion and without expression of concern for the drug rape victim. Nor was there any comment from the girl or anyone else that may have helped identify the video as a cautionary tale.
 Not only does a majority of the Authority disagree with the claims advanced by the broadcaster that the video for "One Night in New York City" is a cautionary tale, it is also of the opinion that the broadcast breached Standard 1 because the combination of the language with the repetition four times of the phrase "he fucked her all night" together with the behaviour depicted in respect of the drug rape of an under-aged girl. The majority concludes that the language and behaviour were outside current norms of decency and taste and comes at a time of increased societal concern about such potential criminal behaviour. Section 21(1)(e) of the Broadcasting Act specifically promotes social responsibility by broadcasters in relation to the protection of children. While the late hour of broadcast, the target audience of M2 and the size of the actual audience are also relevant contextual factors which the majority has taken into account, they do not on this occasion outweigh the breach of Standard 1.
 A minority (Peter Cartwright) is of the view that the broadcast of "One Night in New York City" was not a breach of Standard 1 by reference to current norms of decency and taste in language and behaviour.
 For the minority, the video is a quasi-fairytale told in a cautionary way, like a Red Riding Hood for modern times. The young girl meets a predatory wolf of the sexual kind. He is a university student at NYU and seduces her at the end of an evening in which she and her suburban friend transgress their parents’ strictures. They take a parental car without permission, sneak into a nightclub when underage and drink. The girl in question accepts a drug without even knowing what it is. The consequence is sex.
 Nothing is depicted directly. There is a vision of a fast-moving, edgy, landscape. The narration has a scary, dispassionate tone, the type the minority would describe as using moral fables to teach children for their own protection. In this context, when taken together with the late hour of the broadcast, the target audience and the actual viewing audience, the minority finds the language and behaviour unremarkable.
 In summary, the minority considers that the video is a cautionary tale, as the broadcaster has claimed. But given the obviously arguable nature of this contention by reference to the majority’s position, that is, two tenable interpretations of the standard, the minority adopts the interpretation which it considers is most in harmony with the New Zealand Bill of Rights Act 1990. In so doing, it is the minority’s objective to identify and apply an interpretation of this video which constitutes the least possible limitation on the right to freedom of expression under s.14 of the Act (Moonen v Film and Literature Board of Review  2 NZLR 9).
 As to whether the broadcast breached Standard 2, the Authority has considered whether TVNZ maintained standards consistent with the maintenance of law and order when it broadcast of "One Night in New York City". Guideline 2e to Standard 2 provides that:
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.
 The Authority considers that the video was a realistic portrayal of anti-social behaviour, in that it dispassionately dealt with the commission of the serious crime of drug rape, involving the use of a Class B drug. However, it does not consider that the video glamorised those activities. Neither does it consider that it advocated the socially irresponsible behaviour portrayed. The Authority considers that glamorising the portrayal of crimes would require a degree of promotion or encouragement which it does not consider was clearly evident on this occasion. The Authority accordingly declines to uphold this aspect of the complaint.
 The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision Nos. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion.
 For the reasons explained in this decision, a majority of the Authority considers that the exercise of its powers on this occasion in relation to the aspect of the complaint which it has upheld is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the majority has taken into account all the circumstances of the complaint.
 In relation to the aspect of the complaint which was not upheld, the Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the above reasons, a majority of the Authority upholds the aspect of the complaint that "One Night in New York City" broadcast on TV2 at approximately 4.25am on 10 February 2002 breached Standard 1 of the Television Code of Broadcasting Practice. The Authority declines to uphold any other aspect of the complaint.
 Having upheld a complaint, the Authority may make orders under s.13 and s.16 of the Broadcasting Act. After considering all the circumstances of the complaint and taking into account the hour of broadcast and the size of the audience, and the provisions of the New Zealand Bill of Rights Act, a majority of the Authority does not consider that an order is warranted.
Signed for and on behalf of the Authority
26 September 2002
The following correspondence was received and considered by the Authority when it determined this complaint:
- Rod Valenta’s Formal Complaint to Television New Zealand Ltd – 10 February 2002
- TVNZ’s Response to the Formal Complaint – 25 February 2002
- Mr Valenta’s Response to TVNZ – 1 March 2002
- Mr Valenta’s Referral to the Broadcasting Standards Authority – 1 March 2002
- TVNZ’s Response to the Authority – 8 March 2002
- Mr Valenta’s Final Comment – received 20 March 2002
- TVNZ’s Further Letter to the Authority – 7 May 2002