BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 7 (discrimination and denigration) – standard not intended to prevent the broadcast of legitimate drama (guideline 7a) – programme did not encourage the denigration of, or discrimination against, South Pacific people as a section of the community – not upheld

Standard 2 (law and order) – depiction of criminal activity in fictional drama did not encourage viewers to break the law or otherwise promote or condone criminal activity – not upheld

Standard 1 (good taste and decency) – sexual content brief and inexplicit – acceptable in the context of AO-rated programme broadcast at 9.30pm and preceded by a warning for sexual material – contextual factors – not upheld

Standard 10 (violence) – content complained about did not constitute violence – in any event, broadcaster exercised sufficient care and discretion by classifying programme AO, screening it at 9.30pm, and using specific pre-broadcast warning – not upheld

Standard 5 (accuracy) – standard does not apply to fictional programmes – not upheld

This headnote does not form part of the decision.

---

Introduction

[1]  The first episode of Harry, a fictional crime drama series set in South Auckland, was broadcast at 9.30pm on TV3 on Wednesday 8 May 2013. The storyline revolved around the main character, Detective Harry Anglesea, investigating a spate of armed robberies committed by a group of criminals. The episode was rated Adults Only (AO) and was preceded by the following visual and verbal warning:

This programme is rated adults only and contains violence that may disturb and language and sexual material which may offend some people.

[2]  Rod Young made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the programme created negative stereotypes about South Pacific people by portraying them as criminals who disrespected women. In addition, he argued that the portrayal of criminal activity breached the law and order standard, and the alleged combination of sex and violence breached the violence and good taste and decency standards.

[3]  The issue is whether the broadcast breached standards relating to discrimination and denigration, law and order, good taste and decency, violence, and accuracy, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the broadcast encourage discrimination or denigration against South Pacific people as a section of the community?

[5]  The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, a section of the community.

[6]  The term “denigration” has consistently been defined by the Authority as blackening the reputation of a class of people.¹  “Discrimination” has been consistently defined as encouraging the different treatment of the members of a particular group to their detriment.²  It is also well-established that in light of the requirements of the New Zealand Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard.³

[7]  Mr Young argued that the programme created negative stereotypes and encouraged discrimination and denigration against South Pacific people by using people of that ethnicity to play the role of criminals who disrespected women. The complainant referred to the age, ethnic make-up and physical characteristics of the characters who carried out the bank robbery at the start of the programme, and who allegedly treated prostitutes with disrespect.

[8]  TVWorks said the programme dealt with fictional characters with the intention of telling a story. It contended that the characters’ ethnicities were, in most cases, crucial to the plot, and it did not consider that viewers were likely to draw any conclusions about any race from the characters’ behaviour. It said nothing in the script amounted to hate speech or vitriol in breach of the standard.

[9]  Guideline 7a to Standard 7 states that the standard is not intended to prevent the broadcast of material that is legitimate drama, recognising that this is an important form of speech on which society places value.

[10]  Harry was a “legitimate drama” targeted at an adult audience with the capacity to distinguish fact from fiction, and to understand and critique the cultural stereotypes depicted. The programme was primarily intended to entertain and was not a comment on, or criticism of, South Pacific people as a section of the community. The Authority has previously acknowledged that many programmes are based on cultural stereotypes, and it is within the right of broadcasters and programme makers to employ dramatic licence to tell stories and develop fictitious characters.⁴  In this case, characters depicted as both “good” and “bad” shared the same ethnicity – the main character Harry was Samoan – making it even less likely that viewers would have drawn any conclusions about race by associating the characters’ behaviour with their ethnicity.

[11]  Accordingly, we are satisfied that the item did not encourage discrimination or denigration against South Pacific people as a section of the community and we decline to uphold the Standard 7 complaint.

Did the broadcast encourage viewers to break the law, or otherwise glamorise or condone criminal activity?

[12]  The intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.⁵  The standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society.⁶

[13]  Mr Young argued that the programme breached the law and order standard because it depicted criminal activity including armed robberies and drug use. He also referred to the portrayal of prostitution though he acknowledged that prostitution is legal in New Zealand.

[14]  TVWorks said that Harry was a fictional drama targeted at adults who were likely to have the faculty to form their own decisions about the criminal behaviour depicted. It said the storylines were housed in a dramatic context and the consequences of the characters’ illegal activity were ultimately negative, not glamorous.

[15]  The Authority is not concerned with broadcasts which merely discuss or depict, without condemnation, criminal behaviour, unless the broadcast explicitly instructs how to imitate an unusual criminal technique, or it glamorises the criminal activity.⁷  We are satisfied that the programme did not glamorise or encourage illegal activity, but merely depicted that activity in accordance with the programme’s genre. It was well within the broadcaster’s right to employ dramatic licence and to develop fictional characters and storylines, which – in a crime drama series – inevitably involved crime.

[16]  We therefore decline to uphold this part of the complaint.

Did the sexual content threaten current norms of good taste and decency?

[17]  The good taste and decency standard (Standard 1) is primarily aimed at broadcasts that contain sexual material, nudity, coarse language or violence.⁸  The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.⁹

[18]  Mr Young referred to a sex scene which he said involved a “semi-abusive power and control situation” and “disrespect” for females, and he noted that breasts were visible in the footage.

[19]  TVWorks considered that sufficient care was taken to ensure the sexual content was acceptable in the context of an AO-rated programme screened at 9.30pm.

[20]  The sexual content was brief and inexplicit and mostly occurred in the background or was inferred as happening off-screen. No explicit nudity or genitalia was shown. The content, including brief footage of breasts, was acceptable in context, taking into account the following factors:

• Harry was broadcast at 9.30pm on a Wednesday night, an hour after the AO watershed
• the programme was classified AO indicating that it contained adult themes directed primarily at mature audiences
• it was preceded by a specific warning for “sexual material which may offend”
• it was a drama with fictional storylines and characters
• pre-publicity for the programme
• the programme’s adult target audience
• audience expectations.

[21]  The approach developed by the Authority is to require broadcasters to give viewers sufficient information to regulate their own viewing behaviour. This places a degree of responsibility on viewers to inform themselves about the viewing choices they make.¹⁰  We are satisfied that viewers were properly informed of the nature of the programme and in particular that it contained sexual material, so the level of content would not have been unexpected, and would not have unduly offended most viewers, when taken in context.

[22]  We therefore decline to uphold the Standard 1 complaint.

Did the broadcast contain violence, and if so, did the broadcaster exercise sufficient care and discretion?

[23]  The violence standard (Standard 10) states that broadcasters should exercise care and discretion when dealing with the issue of violence.

[24]  Mr Young argued that the combination of sex and violence and the way sex was “demeaned and demanded” in an oral sex scene involving a prostitute breached the violence standard.

[25]  TVWorks responded that the content subject to complaint did not contain a level of sexual violence that would give rise to a breach of Standard 10. It said the oral sex scene was filmed and edited so that much of the action was inferred. The broadcaster asserted that the male character’s treatment of the prostitute was not gratuitous but was used to portray his “unlikeable and bullying character”.

[26]  The scene identified by the complainant was extremely brief and showed a prostitute standing in front of one of the criminals before dropping to her knees. The oral sex was inferred and not shown explicitly. The content did not constitute “violence” as envisaged by the standard. In any event, the broadcaster exercised appropriate care and discretion by broadcasting the programme at 9.30pm, classifying it AO and using a specific pre-broadcast warning for violence and sexual material (though we do not think this was the content which warranted a specific warning for violence).

[27]  Accordingly, we decline to uphold the complaint under Standard 10.

Does the accuracy standard apply?

[28]  The accuracy standard (Standard 5) applies only to news, current affairs, and other factual programmes. Harry was a fictional crime drama and the standard therefore does not apply. We therefore decline to uphold this part of the complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
3 September 2013

Appendix

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

1           Rod Young’s formal complaint – 8 May 2013 

2          TVWorks’ response to the complaint letters – 27 May 2013

3          Mr Young’s referral to the Authority – 4 June 2013

4          TVWorks’ response to the Authority – 1 July 2013

²For example, see Teoh and Television New Zealand Ltd, Decision No. 2008-091.

³E.g. McCartain and Angus and The Radio Network, Decision No. 2002-152

⁴Russell and TVWorks Ltd, Decision No. 2012-056

⁵See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082

⁶Hunt and Māori Television, Decision No. 2009-010

⁷ Practice Note: Law and Order as a Broadcasting Standard (Broadcasting Standards Authority, May, 2006)

⁸Turner and Television New Zealand Ltd, Decision No. 2008-112

⁹ Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November, 2006)

¹⁰See, for example, Preston and Television New Zealand Ltd, Decision No. 2012-022, and Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November 2006)