BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Tipping the Velvet – promo – "lesbian sex scenes" – 7.30pm – offensive – unsuitable for children

Findings
Standard 1and Guideline 1a – context – no uphold

Standard 9 – not alarming or distressing for children – majority – no uphold

This headnote does not form part of the decision.

Summary

[1] Scenes and dialogue of an intimate nature between females from the television drama, Tipping the Velvet, were broadcast in a promo on TV One at 7.30pm on Sunday 4 May 2003.

[2] Robin Watson complained to Television New Zealand Ltd, the broadcaster, that the promo contained lesbian sex scenes which were entirely unsuitable for child viewers and, therefore, inappropriate for broadcast during family viewing time.

[3] In response, TVNZ argued that the Broadcasting Act prohibited discrimination on the ground of sexual orientation and, as the promo portrayed no nudity or sexual activity beyond kissing, it declined to uphold the complaint.

[4] Dissatisfied with TVNZ's decision, Mrs Watson referred her complaint 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.

Decision

[5] The members of the Authority have viewed a video of the promo 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] A promo for the television drama Tipping the Velvet was broadcast at 7.30pm on Sunday 4 May 2003. It portrayed a scene of an intimate nature which the complainant described as a "lesbian sex scene".

The Complaint

[7] Mrs Watson complained to TVNZ that the promo contained unsuitable material for child viewers and that it was, therefore, inappropriate to broadcast between 7pm and 7.30pm during family viewing.

The Standards

[8] In view of the issues raised, TVNZ assessed the complaint under Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice. The Standards and relevant Guideline read:

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.

Guideline

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 (see Appendix 1). The examples are not exhaustive.

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.

The Broadcaster's Response to the Complainant

[9] TVNZ argued that the Broadcasting Act prohibited discrimination on the grounds of sexual orientation and, unless television were to ban all love stories, it would be discriminatory to refuse to broadcast the promo for Tipping the Velvet, simply because it involved same sex relationships. TVNZ acknowledged that the voice-over may have been a little "melodramatic", but concluded that it was insufficient to effect a breach of the Standards.

[10] In declining to uphold the complaint under Standard 1 of the Television Code, TVNZ stated:

… the sexual activity did not go beyond kissing, there was no nudity and, in the [complaints] committee's opinion, the fact the relationship depicted was ‘same- sex' cannot be considered an affront to good taste and decency.

[11] With regard to Standard 9, TVNZ contended that the promo was no more explicit than love scenes hinted at in other programme promos and shown on television during ‘G' and ‘PGR' time bands. The broadcaster also argued that children's interests were taken into account when it placed the promo in programming that primarily appealed to mature viewers, such as Colonial House and Sunday. These programmes, it argued, were unlikely to be the viewing choice of "unattended and sexually innocent children". Accordingly, TVNZ declined to uphold this aspect of the complaint.

The Referral to the Broadcasting Standards Authority

[12] Dissatisfied with TVNZ's response, Mrs Watson referred it to the Authority together with her response to TVNZ. She said that at no time did she suggest that a drama involving a lesbian affair should not be broadcast on television. She reiterated that her complaint was solely about the time at which the promo was broadcast. In her opinion the content of the promo was inappropriate for child viewers, and the timing of the broadcast, 7pm to 7.30pm, was during family viewing time.

[13] Mrs Watson disagreed with TVNZ's contention that programmes like Colonial House appealed primarily to mature audiences. In Mrs Watson's opinion, most parents would consider it historically interesting and appropriate for their children to view.

[14] In Mrs Watson's view:

… there are serious concerns in the minds of the majority of responsible child carers and parents over the constant infringement of children's rights to be nurtured in a healthy environment until they are mature enough to handle adult concepts.

The Broadcaster's Response to the Authority

[15] TVNZ reiterated the legal position in New Zealand that prohibited discrimination on the grounds of a person's sexual orientation. It argued that to uphold Mrs Watson's complaint on those grounds would be to demonstrate such discrimination.

The Complainant's Final Comment

[16] Mrs Watson reiterated that her complaint was not with the content of the promo, but rather with it being screened during family viewing time.

The Authority's Determination

[17] 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 promo complained about was broadcast.

[18] The Authority notes that the promo was broadcast at 7.30pm, after Colonial House and before Sunday, a current affairs programme. The Authority considers that the contextual factors relevant to its determination include the nature of the programme, Tipping the Velvet, which was a British period drama set in the 19^th century, and the fact that it was likely to be of historical interest to a mature audience. The Authority observes that there was no nudity in the promo, nor was there any explicit sexual activity beyond kissing. In the Authority's opinion, the images were not gratuitous and neither was the viewer bombarded with a series of sexually orientated images. Accordingly, the Authority does not consider that the broadcast breached the Standard 1 requirement for good taste and decency in context.

[19] Standard 9 of the Television Code requires broadcasters to consider the interests of child viewers. The Authority accepts that the promo was screened during children's normally accepted viewing times. Taking into account the contextual issues referred to above, the majority of the Authority is of the view that the item would not be alarming or distressing for children and therefore declines to uphold the Standard 9 aspect of the complaint.

[20] A minority of the Authority (Ms Tapu Misa) disagrees. The drama had an AO classification and the promo contained adult material which, the minority believes, should not have been broadcast during children's normally accepted viewing times. The minority refers specifically to the sexual innuendo and "steamy" dialogue which, in her view, was particularly inappropriately screened at 7.30pm, a full hour before the watershed. Accordingly, the minority concludes that the promo breached Standard 9 of the Television Code. In the minority's opinion, broadcasters should err on the side of caution when scheduling promos of an adult nature, particularly when all promos are screened without warning, and give parents and caregivers little room to exercise parental control.

[21] A majority of 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 neither reasonable nor 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 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 declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
21 August 2003

Appendix

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

1. Robin Watson's Complaint to Television New Zealand Ltd – 10 May 2003
2. TVNZ's Response to the Complainant – 23 May 2003
3. Mrs Watson's Referral to the Broadcasting Standards Authority (response to TVNZ attached) –
   14 June 2003
4. TVNZ's Response to the Authority – 25 June 2003
5. Mrs Watson's Final Comment – 7 July 2003