Waters and TVWorks Ltd - 2010-101
- Peter Radich (Chair)
- Leigh Pearson
- Tapu Misa
- Mary Anne Shanahan
- Tracey Waters
ProgrammeWe Own the Night
Channel/StationTV3 # 3
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
We Own the Night – sex scene broadcast at approximately 8.32pm contained footage of woman with hand between her legs, couple kissing, partial nudity, man's hand down woman's pants – allegedly in breach of good taste and decency, children’s interests and responsible programming
Standard 9 (children's interests) – sex scene constituted strong adult material – shown too soon after the 8.30pm Adults Only watershed – upheld
Standard 1 (good taste and decency) – programme's content appropriate for AO-classified programme broadcast at 8.30pm – not upheld
Standard 8 (responsible programming) – programme correctly classified AO – not upheld
This headnote does not form part of the decision.
 A movie called We Own the Night was broadcast on TV3 at 8.30pm on Saturday 29 May 2010. The movie was a crime drama set in 1980s New York, which followed a fictitious nightclub manager, Bobby Green, who together with his brother sought revenge on members of the Russian mafia for killing his father.
 The movie opened with a sex scene involving Bobby and his girlfriend, Amada. The scene began by showing Bobby standing in the shadows of a hotel room with his eyes focused on Amada, who was lying on a couch wearing a black bodice and pantyhose, with her hand between her legs. Bobby emerged from the shadows and stood next to her as she lay on the couch. He traced his hand up her leg to her breast and then to her neck as the couple began kissing. The camera zoomed out to a wide shot of the couple, showing Amada with her hand between her legs writhing on the couch, moaning and breathing heavily. Bobby pulled down one side of Amada’s top, briefly exposing her breast. He kissed Amada’s breast and put his hand down her stockings. They were interrupted by a knock at the door, which was followed by intermittent footage of the couple kissing. The scene lasted for approximately four minutes.
 The movie was preceded by the following written and verbal warning:
This film is rated adults only and contains violence that may disturb and language and sexual material which may offend some people.
 Tracey Waters made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the scene breached broadcasting standards.
 The complainant considered 8.30pm to be "family viewing" time, and argued that "such explicit material is inappropriate" and that it was "not in good taste, decent or protecting children".
 TVWorks assessed the complaint under Standards 1, 8 and 9, and guidelines 9a, 9b and 9c 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.
Standard 8 Responsible Programming
Broadcasters should ensure programmes:
- are appropriately classified;
- display programme classification information;
- adhere to timebands in accordance with Appendix 1;
- are not presented in such a way as to cause panic, or unwarranted alarm or undue distress; and
- do not deceive or disadvantage the viewer.
Standard 9 Children's Interests
During children's normally accepted viewing times (see Appendix 1), broadcasters should consider the interests of child viewers.
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 that would disturb or alarm them.
9b When scheduling AO material to commence at 8.30pm, broadcasters should ensure that strong adult material is not shown soon after the watershed.
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,
- watch television through to midday on Saturday and Sunday mornings, and during school and public holidays.
Accordingly, special attention should be given to providing appropriate warnings during these periods.
Broadcaster's Response to the Complainant
 TVWorks argued that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was shown, including the time of broadcast, the programme's classification, the target audience, and the use of warnings. The broadcaster noted that the movie was classified AO, broadcast at 8.30pm, had an adult target audience, and was preceded by a verbal and written warning.
 The broadcaster maintained that the movie was heavily edited to ensure that it complied with its classification. It argued that, while the scene subject to complaint was "at the edge" of what was considered acceptable for screening at that time of the evening, it did not stray beyond current norms of good taste and decency, because it:
- was "relatively brief"
- was "interrupted"
- was not "gratuitous" because it established an important relationship between the characters and set the "hedonistic backdrop" of the story
- did not contain nudity
- did not "focus excessively" on sexual content
- involved consenting adults
- was preceded by a "detailed and informative" warning for sexual content
- was the only sexual content in the movie.
 For these reasons the broadcaster declined to uphold the complaint that the broadcast breached Standard 1.
 Turning to Standard 8, TVWorks argued that We Own the Night was "responsibly appraised", and reiterated its view that sufficient care was taken to ensure that it was correctly classified. It noted that a previous 9.30pm version had been further edited to ensure that it met audience expectations. Accordingly, TVWorks declined to uphold the Standard 8 complaint.
 For the same reasons, the broadcaster maintained that it had sufficiently considered the interests of child viewers, and it declined to uphold the children’s interests complaint.
Referral to the Authority
 Dissatisfied with the broadcaster's response, Ms Waters referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 The complainant reiterated her view that the scene subject to complaint was unsuitable for screening at 8.30pm, and argued that it should not have screened until at least 9.30pm.
 With regard to Standard 1, Ms Waters argued that the footage of "a woman whilst ... masturbating" should be classified as "explicit nudity", and was inappropriate regardless of its context.
 Ms Waters maintained that the broadcast breached Standard 9 because the scene contained "strong adult material" and was shown too soon after the 8.30pm watershed (guideline 9b). She also argued that the broadcaster did not pay sufficient regard to the fact that children stay up later on Saturday nights, as noted in guideline 9c. Ms Waters said that she found the material offensive and considered that if it “disturbed” her as an adult then it was likely to have disturbed children.
 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.
Standard 9 (children’s interests)
 Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times, usually up to 8.30pm. Guideline 9b states that when scheduling AO material to commence at 8.30pm, broadcasters should ensure that strong adult material is not shown too soon after the watershed.
 We note that the sex scene subject to complaint occurred at 8.32pm, immediately after the watershed, and on a Saturday night when children could reasonably be expected to be watching. We consider that, while no genitalia was visible, the sexual content in the scene, such as the woman masturbating, the man kissing her naked breast and putting his hand down her stockings, accompanied by her moaning and breathing heavily, was graphic, raunchy, and prolonged. In our view, the scene clearly amounted to "strong adult material" as envisaged by guideline 9b. Accordingly, we find that the broadcaster did not adequately consider the interests of children when broadcasting the scene just two minutes after the AO watershed.
 Having reached this conclusion, we must consider whether to uphold the complaint as a breach of Standard 9.
 In Harrison and TVNZ,1 the Authority determined that upholding a complaint under Standard 9 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act 1990. In that decision, the Authority described the objective of Standard 9 in the following terms:
In the Authority’s view, the purpose of the children’s interests standard is to protect children from broadcasts which might adversely affect them.
 With that in mind, we must consider whether it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of Standard 9 on this occasion. As noted above, we consider that the sex scene subject to complaint was prolonged, explicit and raunchy, making it inappropriate to screen at 8.32pm on a Saturday night when children could reasonably be expected to be watching. We find that upholding a breach of the children’s interests standard on this occasion is proportionate because the broadcaster screened strong adult material too soon after the Adults Only watershed, which is inconsistent with its obligations set out in Standard 9.
 In this respect, upholding the complaint clearly promotes the objective of Standard 9, and therefore places a justified and reasonable limit on TVWorks’ freedom of expression. Accordingly, we uphold the Standard 9 complaint.
Standard 8 (responsible programming)
 Standard 8 requires that programmes are correctly classified and adhere to the time-bands set out in the Free-to-Air Television Code. We Own the Night was classified AO and broadcast at 8.30pm. The complainant argued that, due to the sex scene, the movie should not have screened until at least 9.30pm.
 The AO and AO 9.30pm classifications are defined as follows in Appendix 1 of the Code:
AO – Adults Only
Programmes containing adult themes and directed primarily at mature audiences.
AO – 9.30pm
Programmes containing stronger material or special elements which fall outside the AO classification. These programmes may contain a greater degree of sexual activity, potentially offensive language, realistic violence, sexual violence, or horrific encounters.
 As noted above at paragraph , the sex scene subject to complaint constituted strong adult material. However, we consider that the content was consistent with its AO rating, and that the movie as a whole was correctly classified. Although we have found above that the sex scene complained about was broadcast too close to the watershed in breach of Standard 9, we find that the programme did not contain any "special elements" that warranted a higher rating of AO 9.30pm.
 Accordingly, we decline to uphold the responsible programming complaint.
Standard 1 (good taste and decency)
 When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:
- We Own the Night was broadcast at 8.30pm on a Saturday
- the scene subject to complaint screened at approximately 8.32pm
- the movie was classified AO
- the adult target audience of the film
- the movie was preceded by a written and verbal warning for sexual content.
 To find that the broadcast breached Standard 1, we would need to find that the material in the programme went beyond what viewers would expect in an AO-classified film broadcast at 8.30pm. Although we have found above that the sex scene complained about was broadcast too close to the watershed in breach of Standard 9, we are satisfied that the content of the movie did not breach standards of good taste and decency taking into account the contextual factors listed above.
 We therefore decline to uphold the complaint under Standard 1.
For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of We Own the Night on 29 May 2010 breached Standard 9 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.
 Ms Waters submitted that TVWorks should be ordered to broadcast a statement summarising the upheld aspect of the Authority’s decision, as well as paying $5,000 costs to the Crown.
 The complainant stated that imposing orders would reinforce the Authority's decision that a broadcasting standard had been breached, and would discourage the future broadcast of material inappropriate for children.
 TVWorks submitted that considerable care had been taken with censor edits to ensure that We Own the Night was correctly rated for its timeslot. It said that its breach of Standard 9 was not deliberate or careless but a "careful judgment" made by an experienced programme appraiser who considered the sex scene appropriate to screen with the edits and the warning that had been put in place.
 The broadcaster stated that it was always a judgment call as to where the line for acceptability is drawn and that, on this occasion, its experienced appraiser and the Authority had fallen on either side of that line. It said that the Authority’s decision now formed part of the factors considered by programme appraisers when making such judgments in the future, which it said was the primary purpose of upholding a breach of broadcasting standards.
 For these reasons, TVWorks submitted that no order beyond publication of the decision was warranted.
Authority's Decision on Orders
 We record our surprise at TVWorks' submission that the breach of standards was the result of, not a mistake, but a "careful judgment" by the appraiser. We consider that this scene was clearly strong adult material and should have easily been identified as such.
 However, having considered the submissions from both parties, we do not intend to make an order on this occasion. We consider that the publication of this decision is sufficient in the circumstances to clarify our expectations in relation to strong adult material broadcast too soon after the AO watershed.
Signed for and on behalf of the Authority
15 December 2010
The following correspondence was received and considered by the Authority when it determined this complaint:
- Tracey Waters’ formal complaint – 6 June 2010
- TVWorks’ response to the complaint – 13 July 2010
- Ms Waters’ referral to the Authority – 9 August 2010
- TVWorks’ response to the Authority – 30 August 2010
- Ms Waters’ submissions on orders – 8 November 2010
- TVWorks’ submissions on orders – 19 November 2010
1Decision No. 2008-066