BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

"Rising Sun", the film which was screened on Sky on 23 October 1995 at 8.30pm,

contained a scene of sexual violence.

Rosemary McElroy, on behalf of the Auckland branch of Women Against Pornography

(WAP), complained to Sky Network Television Ltd, the broadcaster, that the film,

which had an R16 classification, should not have been broadcast early in the evening

when children were watching. In addition WAP objected to the broadcast of material

which contained sexual violence.

Sky responded that the film was clearly advertised as being suitable for those over the

age of 16 and was preceded by a warning advising that the language might offend some

viewers. It maintained that the scene complained about was critical in the development

of the plot. While it acknowledged that the woman was depicted as deriving sexual

pleasure from asphyxiation, apparently leading to her death in this case, it emphasised

that the behaviour was not condoned. Dissatisfied with that response, WAP referred

the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

For the reasons given below, the Authority upholds the complaint.

Decision

The members of the Authority have viewed the item complained about and have read the

correspondence (summarised in the Appendix). As is its practice, the Authority

determines the complaint without a formal hearing.

The Complaint

The film "Rising Sun" was broadcast on Sky on 23 October 1995 at 8.30pm. Mystery

surrounded the circumstances behind the death of a woman found dead on a board room

table. Evidence from the scene, which was confirmed by security cameras, showed that

she had had a sexual encounter just prior to her death which, at her insistence, had

included asphyxiation. Bruises on her neck showed that a great deal of pressure had

been applied, but it was unclear whether the asphyxiation accidentally caused her death

or whether she was murdered. The remainder of the film was concerned with the

investigation which ensued, which revealed that the security camera tapes had been

edited to hide the identity of the assailant.

WAP (Auckland), through its secretary Ms Rosemary McElroy, complained to Sky that

the graphic scene showing sexual intercourse combined with violence was dangerous

because some viewers could copy what they saw. WAP also objected to the screening

of the film at an early hour when children would still be watching.

Sky's Response

Sky assessed the complaint against s.4(1)(a) of the Broadcasting Act 1989 which

requires all broadcasters to maintain standards consistent with:

a) the observance of good taste and decency.

In addition it examined the complaint under standard P2 of the Pay Code under which

broadcasters are required:

P2   To take into consideration currently accepted norms of decency and

taste in language and behaviour, bearing in mind the context in which

such language or behaviour occurs.

Sky pointed out that "Rising Sun" was classified as RP16 by the Office of Film and

Literature Classification, pursuant to the Films, Videos and Publications Classification

Act 1993. Acknowledging that the Classification Act provisions are different from

those pertaining to broadcasters, Sky noted that it undertakes an independent review of

all programmes before screening them. As a result, on this occasion, in addition to the

RP16 classification, it added a warning that "language may offend".

In Sky's view, the film did not breach currently accepted standards of good taste and

decency, or encourage discrimination. In Sky's opinion, the assessment was an

objective one, because it believed that those who were most vocal about an issue did not

always express views which were representative of those commonly held in the wider

community.

Sky expressed its concern that children should not be exposed to material which was

not suitable for them, and also advised that it respected the sensitivities of those viewers

who did not wish to be exposed to material which they might find disturbing or

offensive. Accordingly, Sky reported, it did not screen AO movies before 8.30pm. In

addition, it advised viewers of the rating of the film and included specific warnings

prior to the screening. As an added protection, it noted, subscribers had the option to

block out unsuitable programmes with a parental control card.

Next, Sky argued that it was recognised in the Pay Television Code of Broadcasting

Practice that there was a case for a lesser degree of programme content regulation for

pay television than for free to air television. It noted that its customers had made a

positive decision to subscribe to Sky and were generally aware of the nature and variety

of programmes it offered. In its view, it would be unfair to its adult subscribers if it

could only screen family-type films at times when some children could possibly be

watching.

Finally, Sky examined the asphyxiation scene in the context of the film as a whole,

observing that it was critical to the development of the plot. Accepting that the woman

was portrayed as deriving sexual pleasure from asphyxiation, Sky argued that this was

not portrayed as the norm, nor was it condoned or promoted. In fact, it observed, the

behaviour was referred to elsewhere in the film as "very sick". Sky rejected WAP's

suggestion that depicting such behaviour would result in viewers imitating what they

saw.

Sky reported that prior to future screenings of the film, it would provide an additional

warning advising viewer discretion.

Referral of the Complaint to the Authority

Referring the complaint to the Authority, WAP repeated that it felt that as the film

contained explicit scenes of sexual content and was shown at an early hour, it breached

the standard of good taste and decency.

Responding to Sky's point that its subscribers made a positive decision to subscribe and

therefore were tolerant of content, WAP suggested that a large percentage of those

subscribers joined for specific reasons, such as the sports coverage, and that many

would prefer that there was no pornography.

WAP did not agree with Sky's reasoning that it would be unfair to its viewers not to be

able to watch adult material at 8.30pm. It pointed out that teenagers certainly did not go

to bed at 8.30pm.

WAP challenged Sky's contention that it was necessary to feature what it (WAP)

described as an explicit and distasteful scene of sexual intercourse, arguing that

hundreds of other films and television programmes had similar plots but had not found

it essential to include such graphic lewdness.

Regarding Sky's proposed additional warning, WAP responded that it did not think that

advising viewer discretion would deter young people from watching the film. It

concluded that although the character's behaviour had not been condoned, it still

portrayed a very powerful picture and satisfied the Classification Act's description of

"objectionable", ie material which showed sexual satisfaction from pain or cruelty.

Sky's Report to the Authority

In its comprehensive report to the Authority, Sky outlined what it considered were the

relevant factors in determining the complaint.

1. The relevance of the Bill of Rights

Sky noted that under the Bill of Rights, freedom of expression was a constitutional right

in New Zealand and rights and freedoms under the Bill of Rights were subject only to

such reasonable limits prescribed by law "as can be demonstrably justified in a free and

democratic society." It argued that the Authority must interpret the provisions of the

Broadcasting Act consistently with the Bill of Rights.

2. Sky is a subscription service

Sky maintained that because it was a subscription service, it did not accept that it should

be subject to the same standard as free to air broadcasters. It argued that there were

strong grounds for a lesser degree of programme content regulation on Sky for several

reasons. It noted that pay television was a discretionary service to particular subscribers

rather than a broadcast service to the community at large, and subscribers exercised

control over the type of programming that they viewed. Referring to decisions of the

Supreme Court in the United States, Sky noted that restrictions to protect the rights of

people to be left alone in their own homes, and to protect children were the main

reasons for content regulation of free to air television. However, it pointed out, the

cable or satellite subscriber had chosen the service, paid monthly fees in order to receive

it, and was able to discontinue the service at any time. Furthermore, access to

inappropriate material was able to be controlled by parents. Therefore, in the United

States, a programme would be treated differently depending on whether it was on free

to air or pay television. Sky suggested that the same approach should apply in New

Zealand.

Sky also argued that in determining the relevant standards of good taste and decency,

the Authority should take cognisance of the accepted attitudes, values and expectations

of Sky subscribers rather than New Zealanders generally. It believed its subscribers

were more tolerant of a wider range of material, a fact borne out by the generally low

level of complaints it received. It pointed out that although more than 205,000

households subscribe to Sky, only one complaint was received about the film "Rising

Sun". Therefore, it concluded, it did not breach the standards of good taste and

decency of Sky subscribers.

Sky argued further that even if the Authority took the view that standards of good taste

and decency must be assessed in the context of New Zealanders generally, it was still of

the view that Sky should not be subjected to the same standards as free to air

broadcasters. It maintained that its subscribers tolerated a wider range of material on a

subscription service and suggested that the low number of complaints was probably

because people subscribe to Sky wishing to have access to a broader programming mix,

including films and programmes suitable for a mature audience.

3. The relevant contextual factors

Sky contended that the scene in question was critical to the plot development and was

not gratuitous. The woman was not glamorised, and the behaviour was not portrayed

as normal or socially desirable. It did not consider there was a risk that viewers would

copy the behaviour depicted.

With respect to the suitability of the film for children, Sky acknowledged that, by

definition, R16 and R18 films were not suitable for children. However, it argued, it did

not believe its adult subscribers or viewers expected such programmes to be screened

only late at night. It noted that children were protected under other programme

standards and by the provision of parental control cards. Sky submitted that, in general

terms, a breach of standard P2 should not be found in programmes screened after the

8.30pm watershed in generally-accepted adult viewing times. Finally, it drew the

Authority's attention to the fact that viewers were warned the film had a classification of

RP16 and that language might offend. In addition, as a result of WAP's complaint,

another warning advising viewer discretion was added for future screenings. Taking all

these factors into account, it concluded that the scene did not breach currently accepted

norms of decency and taste in language and behaviour, bearing in mind the context in

which it occurred.

The Authority's Findings

The Authority notes that the film "Rising Sun" was classified by the film censor as

RP16 (Approved for exhibition only to persons 16 years of age and over and to any

person under that age when accompanied by that person's parent or guardian) and

distributed to cinemas on that basis. The screening by Sky clearly recorded that

classification. However, the Authority notes that the obligations on the film censor

when classifying films pursuant to the Films, Videos and Publications Classification

Act 1993 differ from the statutory responsibility imposed on broadcasters in the

Broadcasting Act 1989. Broadcasters are required to observe standards of good taste

and decency.

The matters raised by Sky outlined in paragraphs 1 and 2 under Sky's Report to the

Authority substantially reflect submissions it has made to the Authority in the Pay Code

Review. The Authority has not been able to finalise its research or reach findings in that

Review. However, s.4(1)(a) of the Broadcasting Act requires of broadcasters "the

observance of good taste and decency". The Authority treats that provision as

applicable to all broadcasters and applicable to the programme under consideration.

In the Authority's view, there is nothing proven or implicit in Sky's service that

suggests its subscribers have a preference for adult entertainment. It does not accept

Sky's analysis of its viewer preferences, and considers that there are many other

reasons why it may attract subscribers – for example, for its sports coverage, the lack of

advertising, or the fact that it shows recently-released films.

Following the approach taken in two earlier decisions (Decision No:8/94, dated 21

February 1994 concerning "Gone with the Wind", broadcast by TVNZ and Decision

Nos:116/95–125/95, dated 9 November 1995, concerning "Basic Instinct", broadcast

by Sky), the Authority considers in context the sequence in "Rising Sun" which was

complained about.

It accepts Sky's contention that the incident was pivotal to the plot. The investigation of

the cause of the woman's death occupied most of the film, and the bizarre circumstances

surrounding her death were a mystery until near the end. However, in the Authority's

view, the graphic scene, which showed a woman achieving sexual climax while being

asphyxiated, combined sex and violence in a manner which is unsuitable for screening

in the 8.30pm time slot. Not only did the scene graphically portray a dangerous sexual

practice, but it also showed sexual violence against a woman. The Authority views

with concern the depiction of sexual violence in a way which tends to glamorise it or to

make ambiguous the valid response of the woman. It also considers that context cannot

always provide a defence when sexual violence is portrayed and that the combination on

this occasion of sex and violence at 8.30pm breaches the accepted standards of taste and

decency.

Furthermore, it considers the warning cautioning that the language might offend was

inadequate to prepare viewers for the sustained and violent attack on the woman or the

dangerous sexual behaviour being enacted. It believes the broadcaster should have

prepared viewers for the visual content by warning that both the language and content

may offend.

As it commented in its decision on "Basic Instinct", the Authority is not prepared to

make a general ruling about the suitability of R-rated films at 8.30pm. However it

considers that scenes which include a combination of sex and violence are liable to

breach normally accepted standards of taste and decency. Furthermore, it believes such

explicit material should not be shown so close to the 8.30pm watershed, as viewers

under the age of 16 years do not necessarily stop watching television at 8.30pm. The

significance of the watershed time is not that it signals a time when schedules, designed

up to that moment for family viewing, become an unrestrained deluge - a waterfall

rather than a watershed. Rather it is the time which indicates to parents who wish to

exercise choice over their children's viewing that the content, as the evening progresses,

may become less suitable for children to view.

For the reasons given above, the Authority upholds the complaint that

the broadcast by Sky Network Television Ltd of "Rising Sun" on 23

October 1995 at 8.30pm breached s.4(1)(a) of the Broadcasting Act 1989

and standard P2 of the Pay Television Code of Broadcasting Practice.

Having upheld a complaint, the Authority may impose an order pursuant to s.13(1) of

the Broadcasting Act 1989. The Authority does not intend to do so on this occasion. It

is currently undertaking a Review of the Pay Television Code of Broadcasting Practice

which includes an examination of how the Code should apply to adult entertainment.

Pending findings in that Review, the Authority in this case decides against imposing an

order.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
16 May 1996

Appendix

Women Against Pornography's Complaint to Sky Network Television

Ltd - 8 November 1995

Ms Rosemary McElroy, on behalf of Women Against Pornography (Auckland),

complained to Sky Network Television Ltd that its broadcast of the film "Rising Sun"

on 23 October 1995 at 8.30pm breached broadcasting standards.

WAP complained about a graphic scene of sexual intercourse in which a woman was

portrayed as enjoying a form of violent abuse. She was throttled during intercourse and

it was also suggested that she derived pleasure from having intercourse with a bag over

her head. WAP argued that the Films Videos and Publications Classification Act 1993

identified sexual violence as dangerous because some viewers will copy what they see.

WAP also objected to the screening of the film at an hour when children would be

watching. It concluded:

We understood that the rules of social responsibility meant that all restricted

films with the sort of sexual content depicted in "Rising Sun" were to be

screened late at night. We would like an explanation.

Sky Television's Response to the Formal Complaint - 12 December 1995

Sky first outlined its procedures for classifying programmes. It noted that the film had

been classified as R16 by the Classification Office and that Sky itself had added a

warning that the language may offend. It had reviewed the film prior to screening and

did not consider that it breached the standards of good taste and decency, nor did it

discriminate against women.

As far as children were concerned, Sky noted that it did not screen AO programmes

before 8.30pm and that viewers were advised of their ratings and given a warning

immediately prior to the screening. Further, subscribers could use a parental control

card to block out adult programmes. Sky also argued that as a subscription service, its

customers were generally aware of the nature and variety of its programmes and in its

view, it would be unfair to its adult subscribers (205,000 households) if it were only

able to screen family-type films at times when some children could be watching

television.

With respect to the scene complained about, Sky argued that it had to be seen in the

context of the film as a whole. It noted that "Rising Sun" was a mainstream box office

movie, now widely available on video. It wrote:

Rising Sun is a murder mystery set against a politically charged background of

corporate and cultural intrigue within the Japanese/American business world. In

an empty conference room on the 46th floor of Los Angeles' Nakatomo Tower,

the body of a young woman has been found sprawled on the boardroom table.

It appears that she has been strangled to death. However, during an earlier

scene (which is the subject of your complaint), the woman is portrayed as

deriving sexual pleasure from asphyxiation. The first question confronting the

police is whether she has been murdered, or whether her death was accidental.

If she has been murdered, who is the culprit? The rest of the film is devoted to

unravelling the mystery. Against this background, the scene which is the

subject of your complaint is clearly critical to the development of the plot as a

whole.

Sky acknowledged that although the woman was depicted as deriving pleasure from

asphyxiation, the film did not condone the behaviour, or suggest that it was the norm.

It noted that elsewhere in the film, the character's behaviour was described as "very

sick". It argued that the mere depiction of characters did not promote or glamorise their

behaviour, or suggest that it was normal. Sky did not accept that viewers would copy

what they saw on the screen, arguing that the viewing public was well able to

distinguish fact from fiction in the context of this type of film.

Sky advised that in the future it would screen an additional warning prior to

commencement of the film stating "Viewer discretion advised".

WAP's Referral to the Broadcasting Standards Authority - 25 January

1996

Dissatisfied with Sky's decision not to uphold the complaint, WAP referred it to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

WAP repeated that in its view, the film breached standards of good taste and decency

because it showed explicit scenes of sexual content at an early hour. It regarded Sky as

being arrogant for breaking faith with the public and the spirit of responsible

broadcasting by screening an R16 sexually explicit and lascivious film at 8.30pm.

Regarding Sky's assertion that its customers make a positive decision to subscribe to

Sky, WAP suggested that a large percentage of subscribers joined for specific reasons,

such as the sports channel and that many would prefer that there was no pornography.

WAP did not see why it would be unfair for Sky viewers not to have AO programmes

at 8.30pm. It pointed out that teenagers do not go to bed at that hour.

Responding to the argument that the scene was crucial to the plot, WAP argued that the

investigation of whether the death was murder or accidental did not require the graphic

lewdness of "Rising Sun".

Regarding the additional proposed warning in the future, WAP did not consider that

would deter young people from wanting to view the film.

WAP concluded:

Sky may wish to deny that portraying a woman enjoying sexual pleasure from

asphyxiation gives dangerous ideas to warped men and pretend that copycat

behaviour doesn't happen but WAP knows differently. So do those who

formulated the recent Films Videos and Publications Classification Act. It states

that one of the factors in describing material Ôobjectionable' and likely to be

injurious to the public to be given particular weight are: torture, significant

cruelty, sexual violence or coercion, degrading or dehumanising sexual conduct,

sexual satisfaction from pain or cruelty.

Sky's Response to the Authority - 1 March 1996

Sky outlined three broad issues which it considered relevant to the complaint.

1. The relevance of the Bill of Rights

Sky submitted that the Bill of Rights applied to the Authority (section 3(b)) and that

freedom of expression was a fundamental constitutional right (section 14). It noted that

section 14 is subject to section 5 which allows the rights and freedoms of the Bill of

Rights to be subject only to such reasonable limits prescribed by law as can be

reasonably justified in a free and democratic society.

Sky argued that the Authority must interpret the Broadcasting Act in a manner which is

consistent with the rights to freedom of expression contained in the Bill of Rights.

2. Sky is a subscription service

Sky argued that good taste and decency was not an absolute standard and that there

were many differing opinions on what it meant. Sky did not accept that all broadcasters

should be subject to one common standard.

Its position was that there are strong grounds for a lesser degree of programme content

regulation on pay TV. It wrote:

Even where an identical standard appears in both the free to air and pay

television codes (for example standards P2 and G2 relating to taste and decency)

it is Sky's contention that it is not appropriate for those standards to be applied

in an identical manner in these two different contexts.

Sky explained that the rationale for this is that viewers of free to air broadcasting receive

only what the broadcaster chooses to offer, whereas Sky subscribers select from a basic

package of programming that may be supplemented with premium channels.

It noted that pay television was a discretionary service to particular subscribers and that

they make a decision to subscribe, which channels to subscribe to and which to watch.

Accordingly, Sky observed, the subscriber personally exercises control over the

programming they view.

Sky referred to government regulation of pay services in the US and Supreme Court

decisions which had examined the content of broadcasts and their regulation. It noted

that the Court there has distinguished between pay and free to air broadcasts on the

basis that free to air is more of an intruder, whereas pay TV is like an invited guest.

Access to inappropriate channels can be controlled by parents. The US Courts have

thus been reluctant to regulate pay TV programming on the basis that they are pervasive

and accordingly, programmes with identical content are treated differently on pay TV

than on free to air.

Sky argued that from the US case law, it was clear that the less control the individual

had over the receipt of programmes, the greater was the room for regulation.

Acknowledging some cultural and legal differences between the US and New Zealand,

Sky submitted that the US case law was helpful, especially since there is no New

Zealand case law in this area. It emphasised that it did not assert that it should be free of

any content regulation, but argued that there was a strong argument for a lesser degree

of programme regulation on pay television and that it was relevant that Sky was a

subscription service.

Sky quoted a definition from an early decision of the Authority of good taste and

decency which related the standard to the expectations of society. It suggested that in

the context of programmes broadcast on Sky, the standard should accord with the

expectations of Sky subscribers rather than of New Zealanders generally. In its

experience, Sky subscribers were more tolerant of a wider range of material than New

Zealanders generally, a fact which it contended was borne out by the fact that it received

a very low level of complaints.

It suggested that the fact that only one complaint was received about the film "Rising

Sun" lent support to that conclusion.

Sky submitted that even if the Authority took the view that good taste and decency must

be assessed in the broad context of New Zealanders generally, it still considered that

Sky should not be subjected to the same standards as free to air broadcasters. It argued

that New Zealanders were more tolerant in the pay television context. Sky pointed out

that all of the complaints which had been referred to the Authority were from anti-

pornography pressure groups. It also pointed out the low level of complaints in

comparison to the number received by TVNZ.

It concluded that "Rising Sun" did not breach the standards of good taste and decency in

relation to what was acceptable on pay television.

3. Relevant Contextual Factors

Sky argued that the scene was pivotal in the unravelling of the mystery about whether

the woman was murdered or if her death was accidental. It maintained that the scene

was not purely gratuitous and that the woman was not glamorised, nor was her

behaviour depicted as normal. Elsewhere in the film, it noted, her behaviour was

described as being very dangerous, and there was a suggestion that she may have died

as a result of her deviant sexual behaviour. Sky did not accept that there was a realistic

risk of viewers copying the behaviour depicted. It added that its experience was that the

viewing public was able to distinguish fact from fiction in the context of such a film.

Responding to the complaint that children would have watched the film, Sky noted that

by definition all R16 and R18 films were not suitable for children. However it did not

believe its adult subscribers and viewers would want all of its programming to be late at

night. It noted that protection of children was addressed by other standards (P8, P17,

P18 and P19) and by the provision of parental control cards.

Sky submitted that standard P2 should not be used as a "catch-all" provision. It argued:

Although there may well be exceptions, in general terms it is our view that a

breach of standard P2 should not be found in relation to films shown after the

8.30pm watershed, in generally accepted adult viewing times, unless such a film

breaches the currently accepted norms of decency and taste in relation to its

intended audience of adults. We believe that forcing Sky's programming prior

to the late evening to conform to a "safe for kids" standard would be an

unjustifiable restriction on Sky's right to impart information and its subscribers

to receive information.

Sky finally drew the Authority's attention to the fact that viewers were warned that the

film had a classification of RP16 and that language may offend. Also, as a result of

WAP's complaint, an additional warning was added, advising viewer discretion.

Taking all of those factors into account, Sky concluded that the scene complained of did

not breach currently accepted norms of decency and good taste.

WAP's Final Comment - 27 March 1996

WAP considered Sky's reasoning faulty and misguided when it referred to the Bill of

Rights. It argued that it was not the intention of the lawmakers to permit free

expression of information (for example, making bombs, committing murder) without

exercising some responsibility. WAP suggested that pornography, like bombs, also

causes death for some. However, it seldom touched men, which was why the male-

dominated media justified showing pornography.

WAP rejected the argument that being a subscription service made Sky different, noting

the large numbers of people signing up with Sky to watch rugby games. That

confirmed that many subscribers joined Sky for reasons other than watching adult

programming.

WAP refuted that good taste and decency was not an absolute standard. It wrote:

The fact is that most people take their standards from the community in which

they live, so the lower the standards of the media, the lower will the standards

of the community fall. Hence the absurdity of judging books, films, etc by the

standards of the community, for the lower the standards of censorship, the l

lower will fall those of the community. Indeed the survival of a democracy

depends on enough persons of integrity to protect society from destructive

forces such as pornographers would unleash on us. To suggest that Sky has

the right to bypass the safeguards and social responsibility that comes with

democracy is cheeky to say the least.

WAP referred to a recent article in the newspaper in which it was reported that the

BBC's governors were clamping down on bad language, sex and violence, in response

to growing concerns about standards of taste and decency.

It maintained that restricted films should be broadcast late at night. Regarding Sky's

contention that because it received a low level of complaints and therefore its

programming must be acceptable, WAP suggested that in fact a small proportion of

viewers had Sky and many refused to sign up because of the pornography.

Responding to Sky's suggestion that the views of the pressure groups such as WAP did

not represent the community, WAP asked how they knew that, since there had been no

comprehensive survey to give that information.

To the suggestion that some of Sky's viewers had complained about cuts being made to

some films, WAP responded that they were likely to be the perverts who wanted XX-

rated films for their thrills.

Finally, WAP maintained that the contextual aspect did not excuse the sex scene and

other distasteful scenarios at 8.30pm on a Saturday night. It believed the Authority had

good cause to rebuke Sky and ensure higher standards in future.