BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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An appeal against this decision was dismissed in the High Court: CIV 2003-485-2658  PDF1.96 MB

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Complaint
One News – item about children kidnapped by "Lord’s Resistance Army" in Uganda – raped – tortured – forced to murder – unsuitable for children at that hour

Findings
Standard 9 and Guidelines 9a, 9c and 9e – majority – children treated badly – uphold

Standard 10 and Guideline 10g – majority – warning necessary in view of violent, disturbing and alarming material – uphold

No Order

This headnote does not form part of the decision.

Summary

[1] The brutality suffered by the children kidnapped by the self-styled Lord’s Resistance Army in Uganda was dealt with in an item broadcast on One News, beginning at 6.00pm on Saturday 5 July 2003. It was reported that as many as 20,000 children had been kidnapped over a period of 17 years and had been tortured, mutilated, raped or forced to kill.

[2] On behalf of Viewers for Television Excellence (VOTE), the secretary, Glenyss Barker, complained to Television New Zealand Ltd, the broadcaster, that it was unacceptable to broadcast such a distressing item at that hour.

[3] In response, TVNZ contended that young children did not watch the news alone. It also argued that the item was not particularly graphic, and declined to uphold the complaint.

[4] Dissatisfied with TVNZ’s decision, Glenyss Barker on behalf of VOTE referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint.

Decision

[5] The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] The brutality suffered by the children kidnapped by the self-styled Lord’s Resistance Army in Uganda was dealt with in an item broadcast on One News, beginning at 6.00pm on Saturday 5 July 2003. It was reported that as many as 20,000 children had been kidnapped over a period of 17 years and had been tortured, mutilated, raped or forced to kill.

The Complaint

[7] On behalf of Viewers for Television Excellence (VOTE), Glenyss Barker complained to TVNZ that it was unacceptable to broadcast such a distressing item at that hour. Pointing out that many children would be watching at that time with or without parents, Mrs Barker considered that the item could have been edited to remove some of the more distressing elements. She wrote:

Children relate to other children and they could not have failed to have been moved by such scenes and also it was not necessary to cause such distress when, with a little consideration and thought, it could have been avoided. These kinds of items are therefore unacceptable to be shown before the ‘water shed’ in the time when children are to receive special consideration.

[8] Further, Mrs Barker said, there were no warnings before the item which included visuals of injured and mutilated children. She considered that the broadcast breached the standard requiring broadcasters to consider child viewers, and the standard relating to the portrayal of violence.

The Standards

[9] TVNZ assessed the complaint against the Standards in the Free-to-Air Television Code of Broadcasting Practice nominated by VOTE. The Standards and relevant Guidelines read:

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

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 which would disturb or alarm them.

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.

Guideline

10g  News, current affairs and factual programmes will, by their nature, often contain violent, disturbing or alarming material. Broadcasters should not falsify, by omission, a world in which much violence and brutality occurs. When such scenes are necessarily included to serve the public interest, the fact that violence has painful and bloody consequences should be made clear. However, editors and producers must use judgement and discretion in deciding the degree of graphic detail to be included in news programmes when children are likely to be watching. Warnings within news programmes must be used as appropriate.

 The Broadcaster’s Response to the Complainant

[10] TVNZ stated that news and current affairs programmes were not the preferred choice of viewing for unattended young children. Accordingly, it contended, children who had seen the item would have done so in the company of parents or adults who could have answered questions and administer comfort if need be.

[11] Looking at the wording of Guideline 10g, TVNZ said that broadcasters were required not to falsify the news and, arguing that a warning was not necessary, wrote:

While the [complaints] committee agreed that the circumstances surrounding the Ugandan children were quite appalling and distressing, it was noted that the imagery was not particularly graphic. Large numbers of children were shown, but even the picture of the young woman whose face has been mutilated was discreetly shot. The children in the hospital were not shown to be in distress. The committee further noted that the information was delivered in crisp but non-sensational language.

[12] As for Standard 9, TVNZ reiterated its contention that "the vast majority of children watching the news programme were doing so in the company of adults". Moreover, it did not consider that the item was "inherently unsuitable" for children. On the basis that the distressing imagery in the item was kept to a minimum and never gratuitous, TVNZ did not believe that a warning was necessary.

[13] TVNZ declined to uphold both the Standard 9 and 10 aspects of the complaint. In regard to Standard 10, it added that while it showed children recounting their experiences with the Lord’s Resistance Army, no violence was shown.

The Referral to the Broadcasting Standards Authority

[14] On behalf of VOTE, Mrs Barker said that TVNZ’s contention that news and current affairs programmes were not watched by young children alone was questionable and unproven. Further, it did not validate TVNZ’s decision to show "such horrific scenes". She added:

Adults cannot supernaturally predict what TVNZ is about to show on television and thereby jump in front of the screen to prevent their children from seeing horrific scenes. Nor can they quickly place ‘rose-tinted’ spectacles over the eyes of their children so they do not see ‘the worst bits’. TVNZ needs to wake up to the real world! No one can predict what is about to happen and protect their children and why should they have to? Before 8.30pm it is supposed to be safe viewing for children! TVNZ needs to be more responsible.

[15] Questioning whether TVNZ was aware of the impact of such items on children, Mrs Barker stressed that children related to other children. She also noted that the item had been lengthy and could have been edited without losing its impact. She pointed to TVNZ’s description of the situation of children in Uganda as "quite appalling and distressing" while arguing that the imagery was "not particularly graphic". She observed that "the mind boggles" at how the item could have been more graphic.

[16] Maintaining that TVNZ did not recognise the rights of children and seemed de-sensitised to pain and mutilation and had acted irresponsibly on this occasion, Mrs Barker argued that the broadcaster needed "to be called to account". She also noted that television was powerful within society and could be used to desensitise people – especially children – to the pain of others. On behalf of VOTE, Mrs Barker urged the Authority to care for New Zealand children who could not speak for themselves.

The Broadcaster’s Response to the Authority

[17] TVNZ had nothing to add to the substance of the complaint. Disappointment was expressed by TVNZ’s Programme Standards Manager (David Edmunds) at Mrs Barker’s allegation that neither he nor other TVNZ parents were concerned about their children.

The Complainant’s Final Comment

[18] On behalf of VOTE, Mrs Barker reiterated that the organisation was very concerned about television standards and did not regard its comments as "over-dramatic and excessive". She contended that it was possible to keep children well-informed without creating fear or causing them nightmares.

The Authority’s Determination

[19] The Authority considers the central issue raised by the complainant is whether or not the powerful story told in the item should have been preceded by a warning. It is divided in its decision.

[20] A majority of the Authority¹(Joanne Morris and Tapu Misa) concludes that the item should have been preceded by a warning. It refers in particular to Guideline 10g of Standard 10 which points out that warnings should be used in news programmes which deal with violence. This item, it notes, talked about crippling injuries inflicted on the children, the rape of the girls captured by the rebels, showed a girl’s mutilated face, and portrayed a boy giving a graphic account about how he had been required by the rebels to kill. The majority also acknowledges that the complaint related to a news item, and while news items cannot be subject to censorship as the Code accepts, it observes that the Code also refers to the use of a warning where appropriate. In the majority’s view, the content of the item constituted "violent, disturbing and alarming material" as contemplated by the standard. Accordingly, the majority finds that Standard 10 was breached.

[21] The majority also took Guideline 9e of Standard 9 into account. It includes a reference to items where children are humiliated or badly treated and requires broadcasters to think carefully about the time at which such material is scheduled. The majority considers that children’s viewing interests were not adequately considered by the broadcaster in view of its contents and, therefore, the majority concludes that Standard 9 was breached.

[22] A minority of the Authority (Rodney Bryant and Diane Musgrave) disagrees. It points out that the item, while including distressing comments, was visually restrained. It also notes the item’s introduction which, while not including an explicit warning, would have informed parents and care-givers that the item could well include an account, and possibly visuals, of some very unpleasant and alarming events.

[23] In view of the intimation in the introduction and the discreet way in which the horrifying events were presented, the minority concludes that a warning was not necessary.

[24] The Authority notes that 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 majority of 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 1990 on this occasion. For the reasons given in this decision, the majority of the Authority has taken into account all the circumstances of these complaints, including the nature of the complaints and the manner in which the material was broadcast.

For the above reasons, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on One News on 5 July 2003 breached Standards 9 and 10 of the Television Code of Broadcasting Practice.

[25] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. In view of the division of opinion on the Authority as to whether the item breached the standards, the Authority declines to impose an order.

Signed for and on behalf of the Authority

Joanne Morris
Chair
Date 2003

Appendix

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

1   Viewers for Television Excellence – VOTE’s (through its Secretary, Glenyss Barker)
     Complaint to Television New Zealand Ltd – ? July 2003

2   TVNZ’s Response to the Formal Complaint – 20 August 2003

3   VOTE’s Referral to the Broadcasting Standards Authority – 3 September 2003

4   TVNZ’s Response to the Authority – 12 September 2003

5   VOTE’s Final Comment – 16 October 2003

¹Under cl. 2(9) of the First Schedule to the Broadcasting Act 1989, the chair has a casting vote as well as a deliberative vote.