BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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This decision was successfully appealed in the High Court:
CIV-2010-485-002007  PDF3.33 MB

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Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Hung – episode included oral sex scene and female genital nudity – broadcast at approximately 10.10pm – allegedly in breach of good taste and decency standard

Findings
Standard 1 (good taste and decency) – majority – genital nudity and oral sex scene explicit and gratuitous – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]   An episode of the TV series Hung was broadcast on TV One at 9.50pm on Monday 22 March 2010. Hung was a comedy-drama series centred around the life of Ray Drecker, a divorced and financially struggling father who decided to use his large penis to make money as a male prostitute.

[2]  The episode revolved around Ray’s mounting financial troubles, forcing him to consider lowering his fees. In order to make some money, Ray resorted to going on a “date” with a woman called Lenore, whom he held a grudge against for previously stealing from him. On the “date”, Lenore told Ray that he should not lower his prices, but raise them, and tried to convince Ray to go and work for her.

[3]  At approximately 10.10pm Ray and Lenore were shown kissing and Lenore handed Ray money. Lenore was standing up and Ray lifted up her skirt and removed her underwear. During the scene there was one brief shot of Lenore’s genital area. The scene was shot at a short distance in front of her.

[4]   Lenore then sat down on a couch and placed her legs over Ray’s shoulders. Ray crouched in front of the couch with his head between Lenore’s legs and performed oral sex on her. Lenore’s legs and torso were visible as Lenore writhed and moaned on the couch. The top half of Lenore’s body was fully clothed and her genital area was obscured by Ray’s head.

[5]   The programme was preceded by the following written and verbal warning:

The following programme is rated Adults Only. It contains frequent use of language and sex scenes that may offend some people.

Complaint

[6]   Beth West made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the scene breached standards of good taste and decency.

[7]   The complainant expressed concern about the desensitisation of viewers to sexual content, and considered that the scene amounted to “soft porn”. She argued that allowing such content to be broadcast would result in a shift “for the worse” in standards of good taste and decency.

Standards

[8]   Ms West nominated Standard 1 of the Free-to-Air Television Code of Broadcasting Practice in her complaint. It provides:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Broadcaster's Response to the Complainant

[9]   TVNZ contended that to constitute a breach of Standard 1, the broadcast material must be unacceptable to a significant number of viewers in the context in which it was shown, including the time of the broadcast, the programme’s classification, the target audience, and the use of warnings.

[10]   The broadcaster noted that the programme screened over an hour after the AO watershed at 9.50pm, was classified AO, and was preceded by a written and verbal warning. It contended that audiences expected that material screened late at night (after 9.30pm) may contain material which is stronger or contain special elements which fall outside the AO classification, and that the material in question was consistent with this expectation.

[11]   TVNZ noted that there was considerable press at the time the series first started and that given the nature of the storyline as indicated by the title “Hung”, there would have been considerable audience expectation that the series would contain challenging sexual material.

[12]   The broadcaster argued that the scene was relatively brief in the context of the programme, was not detailed and was obviously acted. It contended that the scene did not amount to pornography, because it was not screened for the sole purpose of “titillating” the audience and did not include “explicit close-up footage of genitals and sex acts.” It argued that the scene was important in the context of the series and noted that it was the only sex scene in the episode.

Referral to the Authority

[13]   Dissatisfied with the broadcaster’s response, the complainant referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[14]   The complainant reiterated her view that the episode breached standards of good taste and decency and stated her concern that “because the majority of the programme is considered acceptable [TVNZ] can slip in scenes like this.” She argued that permitting such material to screen would mean that “when [TVNZ] come to review the next complaint they will think that because the public accepted this programme then the standard has already moved.”

[15]   Ms West also raised concerns about the episode’s impact on unsupervised child viewers.

Broadcaster’s Response to the Authority

[16]   TVNZ contended that Ms West’s concerns about child viewers were not mentioned in her original complaint and therefore the issue could not be considered in the referral process.

[17]   With respect to Standard 1, TVNZ noted that the Hung episode commenced screening at 9.50pm and that the scene in question screened at 10.10pm on a Monday night during the school term. The broadcaster argued that it was reasonable to assume that younger children would be in bed at 9.50pm during term time. TVNZ did not agree that Standard 1 was breached.

Authority's Determination

[18]   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.

Preliminary Matter

[19]   Ms West alleged in her referral that the episode breached the children’s interests standard. In our view, Ms West did not raise Standard 9 in her original complaint, either implicitly or explicitly, such that TVNZ should have considered her complaint under Standard 9. Accordingly, we have no jurisdiction to consider Ms West’s complaint with reference to Standard 9.

Standard 1 (good taste and decency)

[20]   When we consider a complaint that alleges a breach of good taste and decency, we are required to take into account the context of the broadcast. On this occasion the relevant contextual factors include:

• the programme was broadcast at 9.50pm on Monday during the school term
• the scene subject to complaint screened at 10.10pm
• the programme was rated AO
• the programme was preceded by a verbal and written warning for language and sex scenes that may offend
• the programme’s adult target audience
• the expectations of viewers, influenced by pre-publicity and the programme's title Hung.

[21]   A majority of the Authority (Tapu Misa, Mary Anne Shanahan and Leigh Pearson) considers that although the context went some way to alerting viewers to the challenging nature of the programme, the content complained about nevertheless went well beyond the level of sexual material that viewers would expect to see on free-to-air television. In the majority’s view, the scene complained about was prolonged, explicit and gratuitous, leaving nothing to the imagination and designed solely for the purpose of shocking and titillating the audience. In these circumstances factors such as the programme’s AO classification and the use of a written and verbal warning were not sufficient to prevent the broadcast breaching standards of good taste and decency.

[22]   Having reached this conclusion, the majority must now consider whether to uphold this complaint as a breach of Standard 1.

[23]   The majority acknowledges that upholding the Standard 1 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Turner and TVNZ¹ we determined that upholding a complaint under Standard 1 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. The Authority has said that the primary objective of Standard 1 is to protect against the broadcast of sexual content, violent material, and language that exceeds current norms of good taste and decency in the context in which it was shown.

[24]   With that in mind, the majority must now consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 1 on this occasion. As discussed above, it is our view that the scene subject to complaint was prolonged, explicit and gratuitous. It departed from audience expectations of the level of sexual material acceptable for screening on free-to-air television. Upholding the good taste and decency complaint would clearly promote the objective of Standard 1 (as outlined in paragraph [23] above).

[25]   In these circumstances the majority finds that upholding the complaint places a justified and reasonable limit on TVNZ’s freedom of expression. We therefore uphold the complaint that the broadcast breached Standard1.

[26]   A minority of the Authority (Peter Radich) considers that the scene complained about was acceptable in the context in which it appeared: in an AO-classified programme targeted at an informed adult audience. The minority would therefore decline to uphold a breach of Standard 1.

For the above reasons a majority of the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Hung on 22 March 2010 breached Standard 1 of the Free-to-Air Television Code of Broadcasting Practice.

[27]   Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. Having considered all the circumstances of the complaint, and taking into account that the decision to uphold the complaint was not unanimous, we conclude that an order is not appropriate. On this occasion we consider that the publication of this decision is sufficient to clarify our expectations surrounding sexual content of this nature.

Signed for and on behalf of the Authority

Peter Radich
Chair
14 September 2010

Appendix

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

1.           Beth West’s formal complaint – 5 April 2010

2.          TVNZ’s response to the formal complaint – 7 May 2010

3.          Ms West’s referral to the Authority – 9 June 2010

4.          TVNZ’s response to the Authority – 16 July 2010

¹Decision No. 2008-112