Walker, Noble, Carter, Siew and Grainger and Television New Zealand Limited

Walker, Noble, Carter, Siew and Grainger and Television New Zealand Limited - 1999-180–1999-186

Members

S R Maling (Chair)
J Withers
L M Loates
R McLeod

Dated

28 October 1999

Complainants

Bruce Carter
Dennis Walker
Mike and Sylvia Grainger (2)
P F Noble
Thim Thai Siew (2)

Number

1999-180–186

Programme

Holmes: Eyes Wide Shut, and trailers

Broadcaster

Television New Zealand Ltd

Channel/Station

TVNZ 1

Standards

Summary

The film Eyes Wide Shut was the subject of an item broadcast on Holmes on TV One on 29 July 1999, commencing at 7.00 pm. Trailers for the programme were shown earlier on the same day.

Mr Walker and Mrs Siew complained to Television New Zealand Limited, the broadcaster, that the scenes of lovemaking and nakedness were unsuitable for television viewing, particularly at a time when children would be watching. The film had been devised to be pornographic and had been given an R18 film rating, Mr Walker wrote, but he was not aware that any warning was given by the broadcaster before the scenes were shown on television. The explicit sexual material was also unacceptable for the time band during which the trailer for the programme was placed, Mrs Siew wrote. Mr Noble and Mr Carter complained that explicit sexual material from an R18-rated film was inappropriate for broadcast early in the evening in a news and current affairs programme. Mr and Ms Grainger complained that the explicit sex scenes in the item comprised AO-classified material which was required to be shown after 8.30 pm. They wrote that the programme’s trailer was also inappropriate for the time band in which it was shown.

TVNZ responded that news and current affairs programmes frequently discussed material which was unsuitable for children. The controversial film was "a worthy subject" for inclusion in the programme, it wrote. It explored eroticism, the broadcaster said, and the love making scenes were essential to a serious examination of the film, because they were at the centre of the controversy the film had attracted. TVNZ submitted that the inexplicit nature of the material did not call for a warning, but indicated the "flavour" of the film without recourse to the scenes which earned the film its R18 rating. Holmes was not aimed at children, it continued, and in its view the item’s scenes reflected domestic harmony and affection which could not be as damaging to children as many of the news stories regularly reported in news and other programmes. The trailer was less visually explicit than the item and was not out of place in the context of news and current affairs material, it concluded. TVNZ declined to uphold the complaints.

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

For the reasons below, the Authority declines to uphold the complaints.

Decision

The members of the Authority have viewed tapes 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.

The film Eyes Wide Shut was featured in an item broadcast on Holmes on 29 July. Interviews with the two main actors were shown, together with some scenes from the film. One of the scenes depicted the male actor fondling the woman actor’s breast. Both actors were shown naked from the waist up. Trailers for the programme were also shown on that day. They depicted scenes from the film showing the actors partly naked, while the commentary referred to the film as the "steamy new flick".

Mr Walker complained that the item was not suitable for general television viewing, particularly at a time when many children would be watching. The scenes showing the couple’s lovemaking and nakedness, including the fondling of the woman’s breast, were persistent and repeated, he wrote. Activities such as those depicted were part of married life and were meant to be undertaken "in the privacy of one’s home and not for public viewing", he submitted. It was stated on the programme that the film had been devised and produced to be pornographic, he wrote, and the publicity given to it by the programme amounted to the promotion of pornography. The film had an R18 rating, Mr Walker noted, and he had not been aware of any warning given before the nudity was screened.

Mr Noble complained that explicit material from an R18-rated film "should not go to air so early in the evening". He wrote that, as "far as I am aware programmes presenting so-called current affairs or news do not have any dispensation from the provisions of the Broadcasting Standards". Noting that the movie had an R18 rating and that the scenes broadcast showed explicit sexual behaviour, Mr Carter wrote that the scenes were "inappropriate for that time of night". He suggested that such material should not be shown before 10.30 pm, "and certainly not during a news/current affairs program in primetime/early evening."

Mrs Siew complained that the segment showed both actors naked, the woman’s breast being fondled, open mouth kissing, and explicit sexual scenes. Such explicit sexual scenes from the R18-rated film failed to observe good taste and decency, she wrote, and the time at which they were screened was also unsuitable for young child viewers. She continued that they also were unacceptable for the time-band during which the programme’s trailer was broadcast.

Mr and Mrs Grainger complained that showing explicit sex scenes from an R18 movie on the programme breached both the good taste and decency standard, and the standard that required that AO-classified material should not be broadcast before 8.30 pm. The trailer for the programme also breached standards by failing to take account of child viewers and of the programme classifications, they wrote, adding:

The trailer was clearly saying "Watch the Holmes show tonight and see Tom Cruise and Nicole Kidman get their gear off" – what a pathetic way to advertise a current affairs show.

TVNZ considered the complaints in the context of standards G2, G8, G12, G22 and G24 of the Television Code of Broadcasting Practice. The first three 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.

G8 To abide by the classification codes and their appropriate time bands as outlined in the agreed criteria for programme classifications.

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

The final two standards provide:

G22 Promotions (promos) for AO programmes may be screened during PGR or G time bands provided the promo is made in such a way that it can be classified as PGR or G, as appropriate. Promotions which carry an AO classification may only be screened within AO time bands.

G24 Broadcasters must be mindful that scenes containing incidents of violence or other explicit material may be acceptable when seen in the total context of a programme, but when extracted for promotion purposes such incidents will be seen out of context and may thereby be unacceptable, not only in terms of the codes but also for the time band during which the trailer is placed.

In its responses to the complainants, TVNZ wrote that the film was controversial largely because of the love scenes between the married co-stars. The controversy revolved around the director’s attempt to explore the relationship between eroticism and pornography, it submitted, and it was seen to be a film which was not pornographic but one which explored eroticism through sexual desire and fantasy. The controversy surrounding the film seemed to make it "a worthy subject for inclusion in a current affairs programme – especially in the week when the film was to be released to the New Zealand public".

News and current affairs frequently showed and discussed material which might not appear suitable for children, TVNZ argued. It said that news and current affairs was aimed at an adult audience "and we believe the audience recognises that to be so". The arts was a part of news, and there was no reason for it to be excluded "from the nightly news wrap up".

The scene showing the fondling was used only once, the broadcaster wrote, and the only apparently nude shot which was repeated was a head and shoulders shot. The lovemaking scenes were essential to a serious examination of the film because they were at the centre of the controversy it had attracted, TVNZ continued, stressing the film was the work of "a man recognised as one of the greatest film directors of all time". It said the pictures used were chosen with care to illustrate the imagery which caused the controversy, without resorting to very explicit material.

The inexplicit nature of the material did not call for a warning, especially in the context of a news and current affairs programme where infinitely more distressing material was regularly shown, it wrote.

In considering standard G2, TVNZ said that the item did not stray beyond currently accepted norms of decency and taste:

…given the context of a piece about a controversial film which had already been the subject of a great deal of publicity. Even the most explicit shot … had been seen before. … [The shots] indicated the ‘flavour’ of the film without recourse to the scenes which earned the movie its R18 rating.

The broadcaster next considered standard G8. The material was legitimately included in an item which explored a matter of current controversy, it suggested. The shots used carefully reflected the nature of the film without resorting to explicit sexual material.

Turning to standard G12, TVNZ said that Holmes was not a programme aimed at children. Viewers of news and currents affairs programmes expected to see controversial material from time to time, it said. The nude scenes in the item reflected domestic harmony and affection, which could not be more damaging to children than the contents of any number of regular news stories.

In declining to uphold the complaints under standards G2, G8 and G12, TVNZ apologised to the complainants for any offence the item had caused them.

The broadcaster then considered the trailers for the item. They quite properly indicated that the film to be discussed was controversial, it wrote, but there was no inference from the trailers that the audience was being invited to an "exercise in voyeurism". TVNZ said that its comments on standard G8 were also relevant to its consideration of standard G22. The trailers were less visually explicit than the programme and, it asserted, they were not out of place in the context of news and current affairs.

Finally, in considering standard G24, TVNZ said that the trailers did not give a misleading impression of what was to follow in the item. They did not contain the more explicit shots, but did make it clear why the film was controversial and "why the husband and wife acting team had become a significant talking point".

It declined to uphold the complaints under standards G22 or G24.

In referring his complaint to the Authority, Mr Walker said that the use of the "repeated" head and shoulder shot in the item had the effect of recalling the fondling scene for viewers. Sexual intimacy was not a fit subject for general television viewing, he repeated, and the fact that the film was controversial and the director renowned did not give the broadcaster a licence to show scenes "which should demand a degree of restriction of viewers". Mr Walker noted that advertising for the film itself on TV One did not show any sex scenes. Nudity and sexuality was glorified in the item, he suggested, and that necessitated a warning being given. He questioned whether because an item was news or of a controversial nature it was exempt from "censorship".

Mr Walker concluded that the broadcaster appeared to consider the programme "and presumably other news and topical issue programmes as being outside the Code of Broadcasting Practice." Mr and Mrs Grainger, in their referral, also observed that the broadcaster seemed to be saying that news and current affairs programmes were not subject to the same programming or time constraints as other programmes; "yet we see no such relaxation within the Codes". They also challenged TVNZ’s view that because an item was controversial it was subject to different standards.

In his referral, Mr Noble pointed out that TVNZ’s claim that the scenes were no more damaging to children than current affairs and news items which of necessity included unpleasant and disturbing materials:

…only serves to emphasise that consideration should be given to rescheduling the time that these programmes go to air.

He concluded by emphasising that "the scene in question was most inappropriate for early evening viewing". Mr Carter in his referral also commented on what he called the unacceptable content at a time when families could be expected to be watching. He encouraged his children to watch news and current affairs programmes, he wrote, but did not expect explicit sexual content before 8.30 pm.

Mrs Siew disagreed with TVNZ that the nude scenes reflected domestic harmony or affection. Her children, she wrote, had enjoyed some Holmes programmes, and she was disappointed greater responsibility had not been exercised in this instance. The scenes should have been shown after 8.30 pm, she wrote, or a warning given so that parents could have taken appropriate action.

Mr and Mrs Grainger also disagreed with TVNZ that the basic flavour of the trailer was not voyeuristic. That was the immediate impact the trailer had on them, they wrote.

In its response to Mr Walker’s referral to the Authority, TVNZ denied it had claimed that news and current affairs items should not be subject to the broadcasting codes. It did believe however that the interpretation of the codes had to be somewhat different for news and current affairs programmes from that used in regular programming, "simply because the subjects which arise are often of necessity inherently distressing or controversial". It regarded the standards as prudent measures to be constantly kept in mind when assembling news and current affairs items, TVNZ added.

In its response to Mrs Siew’s referral to the Authority, TVNZ reiterated that the film was controversial "and as such was newsworthy. Because it was controversial, it was necessary that the nature of the controversy be indicated".

In his final comment, Mr Walker reiterated that it was inherently dangerous to accept that news programmes had freedom to screen items which were controversial. He pointed to various broadcasting standards which, he suggested, contained restrictions on the broadcast of news items.

The Authority’s Findings

The Programme

Turning first to the good taste standard, the Authority considers the focus of the complaints is the film footage selected by the broadcaster to illustrate the item. As standard G2 requires, the Authority looks first to community expectations of decency and taste and, secondly, to the context in which the images occurred. It acknowledges that the scenes showing what appeared to be a naked man and woman, and including a scene showing the woman’s breast being fondled by the man, might be upsetting and distasteful to some viewers. However it does not consider there is a widespread view that the scenes would breach the standard. It notes the broadcaster’s emphasis on the actors being in reality a married couple and portraying, in the film, a married couple. In considering the scene showing the breast fondling, the Authority believes that, although some viewers might consider it to be provocative, it did not portray the explicit sexuality which would result in the standard being breached.

The contextual framework for the item was made clear, the Authority believes, in the presenter’s commentary. The film was about to be released to cinemas, its sexual content had been widely discussed in the media, its director was known for his controversial films, it was the last film made before he died, and the relationship between the actors, as a married couple playing a married couple, also had been subject to some media comment. In the Authority’s view, those factors explain TVNZ’s decision to broadcast the item in its news and current affairs time-slot. Furthermore, the Authority notes the item was broadcast in PGR time. It considers the scenes from the R18-rated film had been sufficiently carefully selected that they neither portrayed explicit sexuality nor were inappropriate for viewing in that time-slot. The item did not, the Authority concludes, require a warning. It therefore declines to uphold the complaints under standard G2.

Next the Authority considers the complaints under standards G8 and G12. Those standards require broadcasters to abide by the classification codes and their appropriate time bands, and to be mindful of the effect of a programme on children during their normally accepted viewing times. The programme commenced broadcast at 7.00 pm. That PGR time-slot allows the broadcast of programmes containing material more suited to adult audiences but not necessarily unsuitable for children when subject to a caregiver’s guidance. The Authority believes that, as the gravamen of the complaints was the broadcaster’s selection of scenes to illustrate the film’s flavour and content, the complainants’ concerns are most effectively encapsulated in the factors which it has considered under standard G2. In view of the careful selection of footage, its lack of explicit sexuality, and the Authority’s findings under standard G2, it declines to uphold the complaint under standards G8 and G12.

The Trailers

Again, the Authority notes that the matters troubling the complainants who expressed concern about the trailers were focussed on the footage used by the broadcaster. The Authority has viewed three trailers for the programme. In all three, the commentary referred to "the steamy new flick", and two of the trailers contained film footage of the semi-naked female actor’s rear torso. The third trailer included footage of the naked upper bodies of both actors. As the item the trailer was promoting was neither an AO programme nor required an AO classification, standard G22 was not apposite to the complaint and the Authority declines to uphold the complaint under that standard.

Standard G24 requires broadcasters, when using extracts from explicit material which may be unacceptable when seen out of context, to be mindful that the extracts comply with the standards and the time band during which the trailer is broadcast. The Authority notes the two trailers showing the female actor’s rear upper torso were broadcast in a G time-slot. The third trailer was broadcast at the commencement of the PGR time-slot. The Authority is unable to discern in the extracts used by the broadcaster such "explicit material" as would be unacceptable in the context of a brief and inexplicit trailer. It declines to uphold the complaint under standard G24.

For the reasons set forth above, the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
28 October 1999