BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Cockstars – documentary about Puppetry of the Penis – male nudity – "pelvic gyrations" – breach of good taste and decency – failed to consider children’s viewing interest

Findings
Standards 1 – context – no uphold

Standard 9 – outside children’s normally accepted viewing times – no uphold

This headnote does not form part of the decision.

Summary

[1] Cockstars was a documentary about seeking performers for the stage show "Puppetry of the Penis". The programme was broadcast on TV3 at 9.30pm on 5 June 2003. It featured nude males manipulating their genitalia.

[2] Fay Woodham complained to TV3 Network Services Ltd, the broadcaster, that the programme was offensive because "full frontal nudity" was unacceptable and breached standards relating to children’s viewing interests.

[3] Declining to uphold the complaint, TV3 said in context the broadcast did not breach current norms of good taste and decency. TV3 also said that it had considered children’s interests which was demonstrated by the late screening of the programme.

[4] Dissatisfied with TV3’s decision Mrs Woodham referred her complaint 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 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] Cockstars was a documentary about seeking performers for the stage show "Puppetry of the Penis". The programme was broadcast on TV3 at 9.30pm on 5 June 2003. It featured nude males and visuals of "penis puppetry".

The Complaint

[7] Mrs Woodham complained that the programme breached standards of good taste and decency because "full frontal nudity [was] not acceptable." The complainant objected to the "pelvic gyrations" that were shown, and found the performer who "tied a knot in his penis" offensive. Mr Woodham advised that she had "inadvertently flicked on to Cockstars" and saw the two nude males performing.

[8] Mrs Woodham also expressed her concern for child viewers as she considered the material unsuitable for children. In her view the screening of this programme indicated that the broadcaster had failed to consider the interest of children who may have been up watching television at that time. Mrs Woodham said that although the programme was rated AO, children may have been watching the programme or may have "inadvertently flicked on to it" as she had done.

[9] She concluded:

Cockstars stretches the boundaries of good taste and decency and I object to this type of programme being screened at 9.30pm.

The Standards

[10] TV3 assessed the complaint under the standards nominated by the complainant. The Standards in the Free-to-Air Television Code of Broadcasting Practice provide:

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.

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

[11] TV3 declined to uphold the complaint. In relation to Standard 1, TV3 referred to a number of contextual factors that it considered were relevant to the broadcast. It referred to the AO rating and the pre-broadcast warning about the adult content. TV3 also noted that the programme was shown on a Thursday night – an hour after the 8.30pm watershed.

[12] In addition, TV3 referred to the adult target audience and the "experience or prior knowledge of the likely content of the programme by viewers." It said that there had been wide media coverage of the stage show which was performed in New Zealand last year. Consequently, TV3 contended that a majority of viewers would be aware that the "show involved manipulation by male performers of their genitalia." TV3, in referring to the above contextual factors, considered that the "content of the programme would be unsurprising to most viewers of the programme."

[13] TV3 continued:

The [standards] committee has viewed the programme and finds that the nudity in the programme was not gratuitous to the focus or subject of the documentary. The committee finds that the documentary was light hearted in its approach. It further finds that the nudity was not ‘sexual’ in the sense of sensuous or intimate – while it showed the male performers’ genitalia – ordinarily private – it was shown in the course of a public performance and lost any private character as a result. The treatment of the coverage of the acts was matter of fact not sleazy or scurrilous.

[14] In view of the above factors, TV3 declined to uphold the Standard 1 aspect of the complaint.

[15] In relation to children’s viewing interests, TV3 argued that it had considered child viewers by showing the programme at 9.30pm on a weekday night, which was not considered as children’s normally accepted viewing time. Accordingly, it found that Standard 9 had not been breached.

The Referral to the Broadcasting Standards Authority

[16] In her referral, Mrs Woodham argued that contextual factors did not excuse showing full frontal nudity on television. In her view such material should not have been broadcast. In relation to child viewers Mrs Woodham, citing Authority research in support of her submission, maintained that the programme was inappropriate for broadcast at 9.30pm because it was likely that children were up watching television at that time, and it was unsuitable material for children.

The Broadcaster’s Response to the Authority

[17] TV3 argued that it had provided rating and warning information to viewers, but Mrs Woodham had not seen that information because she had "inadvertently" come across the programme, and therefore was "surprised" by its content. In TV3’s opinion, viewers who "deliberately chose to watch the show would not have been either surprised or offended by the programme."

[18] TV3 contended that it could not "take account of those viewers who ‘surf’ between programmes" and who consequently miss information that it had broadcast to inform viewers. The broadcaster submitted that at 9.30pm, "viewers might have a reasonable expectation of encountering challenging material".

[19] In regard to child viewers, TV3 referred to a recent Authority decision which held that 9.30pm, even during the school holidays, was not considered children’s normally accepted viewing time. TV3 said that by 9.30pm what children were watching on television was the responsibility of parents and caregivers.

The Complainant’s Final Comment

[20] Mrs Woodham disagreed with TV3’s submissions. She maintained that:

• "viewers may have been surprised and shocked at the full frontal male nudity broadcast";
• as most viewers did surf, TV3 had a responsibility to maintain standards of good taste and decency to all viewers including those who surfed;
• regardless of the viewer information provided by TV3 it did not "excuse the full frontal male nudity shown in Cockstars"; and
• the programme was likely viewed by children and that TV3 could have removed the nudity as it was unsuitable viewing material for children. While acknowledging parental responsibility, "it is disappointing that TV3 excuses itself from any responsibility", she said.

The Authority’s Determination

[21] 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 documentary complained about was broadcast.

[22] Relevant contextual matters on this occasion include the time of broadcast (9.30pm), the nature of the programme (adult entertainment), the pre-broadcast warning about the adult content and the programme’s AO classification. The Authority also notes the matter of fact way in which the documentary content was depicted.

[23] In the Authority’s view, the documentary neither titillated nor provided a prurient approach to the display of male genitalia. While the Authority acknowledges that the documentary was unlikely to appeal to all viewers, it was satisfied that in context, the programme did not breach the Standard 1 requirement for good taste and decency.

[24] Standard 9 of the Television Code requires broadcasters to consider the interests of child viewers during their normally accepted viewing times. The Authority concludes that the broadcast of this documentary did not breach standards relating to children’s viewing interests as it considers that 9.30pm on a Thursday night is not usually considered to be children’s normally accepted viewing time. Further, given the programmes AO classification and the pre-broadcast warning, the Authority declines to uphold a breach of Standard 9.

[25] 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 reasons given above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
16 October 2003

Appendix

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

1. Fay Woodham’s Complaint to TV3 Network Services Ltd – 26 June 2003
2. TV3’s Response to Mrs Woodham – 8 July 2003
3. Mrs Woodham’s Referral to the Broadcasting Standards Authority – 24 July 2003
4. TV3’s Response to the Authority – 8 August 2003
5. Mrs Woodham’s Final Comment – 28 August 2003