Burton and Television New Zealand Ltd - 2019-026 (23 August 2019)
- Stephen Burton
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority has upheld a complaint that a promo for The Shallows shown during Finding Dory breached the children’s interests standard. The Authority found that the promo, which featured sinister and scary shark related content, was inappropriate for a child audience which would likely have been disturbed or alarmed by it. The Authority noted the importance of scheduling and editing promos for AO programmes appropriately, taking into account the classification of the host programme, and also the time of broadcast, target and likely audience of the host programme, and audience expectations. In considering the contextual factors, the Authority also found that the promo did not meet the G classification of the host programme. The Authority made no orders, and determined that the publication of the decision was sufficient to publicly notify and remedy the breach and would provide appropriate guidance to the broadcaster and to broadcasters generally.
Upheld: Children’s Interests. No order.
 A promo for the movie The Shallows (classified Adults Only ‘AO’) was broadcast at approximately 8.10pm during the movie Finding Dory (classified G) on TVNZ 2.
 The promo was 30 seconds long. The promo began by showing a young female surfer going for a surf on a fine day into blue waters, where she was suddenly knocked off her board. At this point in the promo, the music became more dramatic, and the shadow of a shark was apparent under water. The promo went on to show:
- surfers looking frightened
- a female surfer yelling ‘get out of the water’ at a male swimming, who was then pulled off rocks by something underwater
- the female surfer screaming underwater
- the shadow and fin of a shark
- the shark swimming beneath one of the surfers
- a close-up at a look of fear on the female surfer’s face
- the female surfer firing a gun.
 The promo was broadcast on 10 March 2019 on TVNZ 2. As part of our consideration of this complaint, we have viewed a recording of the broadcast complained about and read the correspondence listed in the Appendix.
 Stephen Burton submitted the promo breached the children’s interests standard for the following reasons:
- The promo was shown during Finding Dory, a G-rated children’s movie, but was for an Adults Only movie and did not match the classification for the host programme.
- It showed surfers being attacked or hunted by sharks. G programmes should not contain material likely to alarm or distress children. The promo was unsuitable for children as it would have been ‘terrifying’.
- During children’s programming times, when G and PGR rated programmes are shown, ‘this sort of inappropriate programming’ should not be shown.
- While, as TVNZ argued, Finding Dory ‘does contain some scenes which contain threat’, The Shallows shows a ‘real world threat to human life in a real world scene’ which is ‘vastly different’ especially given the effect that threat ‘may have on a young viewer’.
- Although the promo may not have shown the shark harming any person, it ‘obviously sets out a scene where some people are . . . mortally threatened and isolated by a very large and aggressive shark, leaving little to the imagination as to what’s pulling the male surfer off the rock’ and shows ‘a man aggressively paddling and then scrambling to get a hold of a rock before being violently pulled back into and under the water.’
- It is a ‘well known method of instilling fear and tension through film that not showing “the monster” can have the same if not greater effect on the audiences perception of threat’ for example, in the film Jaws.
- In reference to guideline 3a, the ‘fear/horror shown on characters faces, and the implied threat to human life could not be interpreted as anything less’ than a ‘graphic description of people in extreme pain or distress.’
- In its response the broadcaster referred to Finding Nemo, which was not the movie being shown.
The broadcaster’s response
 TVNZ submitted that the promo did not breach the children’s interests standard for the following reasons:
- Sharks are not an unusual part of the Finding Nemo and Finding Dory movies. For example, in Finding Nemo, Bruce the great white shark chases Marlin and Dory,1 and in Finding Dory, Destiny the whale shark is one of the main characters.
- The references to and vision of sharks were ‘carefully used so the shark is never shown harming any person…no one is shown being hurt.’
- ‘The promo was edited so that it did not contain any material which would be unsuitable for child viewers and is consistent with the expectations of the G certificate’.
- ‘The G certificate specifically allows that G certificate programmes may not necessarily be designed for child viewers but should not contain material likely to alarm or distress them.’
The children’s interests standard
 The children’s interests standard states that broadcasters should ensure children can be protected from broadcasts which might adversely affect them. The purpose of the standard is to enable audiences to protect children from material that unduly disturbs them, is harmful or is likely to impair their development. The focus of the standard is on harm that may be unique to children (and which may not be harmful to the audience in general).3
 For the purposes of this complaint, material likely to be considered under this standard includes violent content or themes, and graphic descriptions of people in extreme pain or distress.4
 Advertisements are not generally within the Broadcasting Standards Authority’s jurisdiction although the Authority has jurisdiction in respect of advertisements promoting scheduled programmes (‘programme promos’).5 Programme promos are therefore (like any other broadcast programme) subject to the programme standards under the Broadcasting Standards in New Zealand Codebook.6
 In this case, Mr Burton has complained that the promo breached the children’s interests standard. Context is an important consideration when assessing complaints under this standard and contextual factors include time of broadcast, target and likely audience, audience expectations and classification of the programme. Although the programme information standard has not been raised, and we cannot therefore make a finding of breach under that standard, guideline 2e of the programme information standard is relevant for determining what the classification of the promo ought to have been. Guideline 2e provides that promos for programmes should comply with the classification of the programme during which they screen (the host programme). In this case the promo needed to meet the G classification of the host programme Finding Dory.
 The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.
 As highlighted above, context is an important consideration when assessing complaints under the children’s interests standard. Contextual factors include the programme’s classification, the time of broadcast, the target and likely audience, audience expectations, and any factors that mitigate the likely harm to children, such as humour or educational benefit.7
 We consider the following contextual elements and factual findings to be relevant:
- The host programme, Finding Dory, is a well-known children’s movie about cartoon sea life, aimed at children under 10 and was played on a Sunday night before the 8.30pm AO timeband. Children were therefore the target and likely audience, and the audience expectation during Finding Dory and during ad breaks was for content suitable for young children.
- The promo was about 30 seconds long, with the ominous shark related aspects filling half of the 30 second promo.
- The promo was alarming and disturbing, particularly in the second half as it depicted a real threat to human life, as described above in paragraph .
- The start of the promo had a light-hearted tone, which suddenly became ominous halfway through. This may have surprised some viewers or alarmed children. Children were likely to be drawn in (particularly given the consistent sea theme, seen in Finding Dory) and then surprised, alarmed or scared by the dark turn.
- While there was no graphic violence or descriptions of violence and viewers did not see any blood or injuries, or anyone getting hurt, the threat of serious injury from the shark was conveyed.
- Viewers only saw the shadow and fin of the shark, and the violent and sinister content was largely implied rather than explicitly depicted. However, viewers did see the surfer knocked off her board and another surfer scrambling up the rocks and sucked down again.
- There was a shot of the female surfer firing a gun, and although brief, the gunshot sound was clear.
- The complainant submitted that the promo was the first advertisement to play in that ad break, which means child viewers of the movie were more likely to be paying attention.
- There was no public interest in the broadcast.
 As noted in paragraph  above, the complainant has not raised the programme information standard. But as classification is another relevant contextual factor under the children’s interests standard, the Authority has considered whether the promo complied with the G classification of the host programme Finding Dory.
 The free-to-air G classification is defined as:8
Programmes which exclude material likely to be unsuitable for children. Programmes may not necessarily be designed for child viewers but should not contain material likely to alarm or distress them.
 The Authority has previously found that the G classification indicates that the nature of the programme means parents, caregivers and guardians can be confident in leaving children unsupervised in front of the television to watch programmes during a G-classified timeslot, and that there will be no content which will unduly disturb or upset children of any age.9 A child means a person under the age of 14.10
 In considering whether the promo complied with the G classification, attention in this case was given to the level of violence and mature themes (as further outlined at paragraph ), and whether the promo was suitable for children to watch unsupervised.
 Based on ominous and scary features of the promo, we consider the promo would more appropriately be classified at least PGR, requiring parental guidance, so that parents could explain to young children that the movie is fictional, and explain the risks of sharks. Parents would also be able to comfort younger children who may be alarmed or disturbed by the threatening and distressed scenes. There were clear violent themes and images conveying pain and distress by the characters. This may have disturbed or alarmed younger viewers.
 Taking into account the contextual factors identified in paragraph  above including the sinister nature of the promo, the narrative device used (which was to draw in audiences, then frighten them), and the common theme of the sea world, we consider the promo was likely to disturb or otherwise adversely affect children who would have been watching at that time.
 The Authority has previously found that child viewers may not appreciate the stylised presentation of violence or that events depicted are not real.11 Further, children watching are more likely to be upset or disturbed by the content when they are not prepared for it.12 The promo was for an AO movie, and while promos for AO movies can be edited to fit the G classification, violent themes more suitable for adults were evident in this promo. Children watching would not have been prepared to see a depiction of realistic violence.
 As the complainant submits, the implication of surfers being hunted by a shark may have been ‘a rather terrifying prospect’ for some children, particularly given that New Zealand is a country surrounded by water. Even though the promo was brief, the ‘scary’ parts of the promo comprised half of the promo and would have created a terrifying image for children. An unseen monster can be just as scary as one explicitly depicted.
 In this case the broadcaster has submitted that the promo was substantially edited so that it would be suitable for child viewers. We disagree. While the promo may have been substantially edited, it was not sufficient to meet the G classification and to align with the expectations of the young audience that would have been watching television at that time. We consider that it was highly likely that children would have been distressed or alarmed by this promo. In this case, the broadcaster failed to ensure that children could be protected from content that might adversely affect them.
 Therefore the Authority upholds the complaint under the children’s interests standard. We are satisfied that this finding does not unreasonably limit the broadcaster’s right to freedom of expression. We are not suggesting that the promo should not have been played at all – only that it should not have been played during Finding Dory when young viewers were likely to be watching unsupervised.
For the above reasons the Authority upholds the complaint that the broadcast by TVNZ of a promo for The Shallows on 10 March 2019 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989.
 We have considered whether we should make orders in this case. We do not intend to do so on this occasion. We do however want to ensure that TVNZ and all television broadcasters take care in scheduling promos. They must consider not simply whether they have edited a promo to meet the host classification and to remove explicit content, but whether the promo is appropriate, taking into account the target and likely audience and audience expectations.
 We consider that publication of this decision is sufficient to publicly notify and remedy the breach that has been found. The decision also provides sufficient guidance to broadcasters and clarifies our expectations that programme promos must be suitable for the audience that is likely to view them, especially at times when children are likely to be watching.
 Therefore on this occasion we make no order.
Signed for and on behalf of the Authority
Judge Bill Hastings
23 August 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Stephen Burton’s formal complaint – 10 March 2019
2 TVNZ’s response to the complaint – 08 April 2019
3 Mr Burton’s referral to the Authority – 05 May 2019
4 TVNZ’s confirmation of no further comment – 7 June 2019
1Finding Nemo is rated PG in New Zealand and is not the host movie. Finding Dory is a children’s movie rated G in New Zealand and has mild themes. It does not contain any shark attack scenes.
2 Commentary, Children’s Interests, Broadcasting Standards in New Zealand Codebook, page 13
3 As above, page 14
4 Guideline 3a
5 Broadcasting Act 1989 s 8(3) and s 2 (definition of advertising programme)
6 Section 4(1)
7 Guideline 3b
8 Definitions, Broadcasting Standards in New Zealand Codebook, page 9
9 Johns and Television New Zealand Ltd, Decision No. 2016-049
10 Definitions, Broadcasting Standards in New Zealand Codebook, page 9
11 Sanders and APNA Networks Ltd, Decision No. 2017-017 at 
12 Cochran and Radio New Zealand Ltd, Decision No. 2017-032 at