Cross and Television New Zealand Ltd - 2008-059
- Joanne Morris (Chair)
- Tapu Misa
- Paul France
- Diane Musgrave
- Lewis Cross
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Shortland Street – scene involved sexual encounter between two characters – allegedly in breach of good taste and decency and children’s interests
Standard 9 (children’s interests) – sexual activity was unambiguous – inappropriate for broadcast during children’s normally accepted viewing times – broadcaster did not adequately consider the interests of child viewers – upheld
Standard 1 (good taste and decency) – subsumed into consideration of Standard 9
This headnote does not form part of the decision.
 An episode of Shortland Street, broadcast on TV2 at 7pm on Wednesday 30 April 2008, included a scene in which two male characters, Gerald and Lindsay, were involved in a sexual encounter. Gerald and Lindsay were shown undressing and kissing; Gerald was in his underwear and Lindsay was shirtless, but still wearing his trousers.
 The sexual encounter scene began by showing the two characters lying in bed talking, covered up to their bare chests by blankets. As they were talking, Lindsay descended under the blankets and Gerald nervously asked him “Where are you going?” Lindsay popped his head back up and replied “it’s a surprise” before descending back under. Just as Lindsay went back under the blankets Gerald giggled, and Lindsay popped his head back up saying “What?” Gerald replied “Sorry, I’m just really ticklish”. Lindsay said “Shall I stop?” to which Gerald replied “No, it’s fine, full-steam ahead”. Lindsay then told Gerald to relax and went back under the blankets. As Lindsay did so, Gerald nervously jerked and accidentally kneed Lindsay in the face, giving him a bloody nose. Gerald began to apologise and the scene ended.
 The programme was preceded by the following written and verbal warning:
The following programme contains sexual material that may not be suitable for a younger audience. We recommend the guidance of a parent or other adult.
 Lewis Cross made a formal complaint to Television New Zealand Ltd, the broadcaster, stating that the episode showed “in rather graphic physical details, the developing of a potential homosexual relationship between two young men”. The complainant said that he was appalled that “TVNZ is prepared to accept it is suitable family viewing to show a pair of men undressing, getting into bed and one disappearing under the blankets to obviously start oral sex with his mate”.
 Mr Cross said that he would “have enough of a problem explaining to younger kids what might just be happening under the bed clothes if that had been a heterosexual couple”.
 Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These 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.
Broadcaster's Response to the Complainant
 TVNZ considered the complaint with reference to Standard 1 (good taste and decency). It stated that for an item to breach Standard 1, the broadcast material must be unacceptable to a significant number of viewers in the context in which it was shown. It pointed out that Shortland Street was rated PGR, which allowed for material that is more suited to an adult audience, and that the programme was preceded by a warning advising viewers that it contained sexual material. It contended that parents had “ample opportunity to decide whether or not to allow their children to watch”.
 The broadcaster argued that Shortland Street routinely dealt with adult themes and noted the programme had featured gay characters since 1994. It also noted that the Free-to-Air Television Code of Broadcasting Practice does not allow for discrimination or denigration against a section of the community on the basis of sexual orientation. TVNZ contended that the same scene with a heterosexual couple would not have breached broadcasting standards, and that the same conclusion should be drawn with respect to the scene’s depiction of a homosexual relationship.
 TVNZ was of the view that the scene did not contain any “actual sex” and while “Lindsay does go under the covers and there is a suggestion of oral sex”, it did not occur and ended in comic disaster. The broadcaster argued that the scene did not stray beyond current norms of good taste and decency, and that in the context of the storyline – a young man trying to find his sexual identity – the material was well within the boundaries of a PGR-rated programme. TVNZ declined to uphold the complaint that the programme breached broadcasting standards.
Referral to the Authority
 Dissatisfied with TVNZ’s response, Mr Cross referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He disagreed that the scene had only implied oral sex and stated that Gerald let out a very suggestive giggle as “Lindsay obviously latches onto something more than a toe”. The complainant submitted that Gerald’s reaction was to the start of sexual activity.
 Mr Cross contended that the scene would have been just as offensive, considering the timeslot, if it had involved a heterosexual couple. He maintained that the warning and PGR rating did not justify such content at the time that it was broadcast.
Authority’s Request for Further Submissions
 After reviewing the correspondence, the Authority noted that the complainant had raised the issue of children being exposed to the material contained in the programme. It considered that Standard 9 (children’s interests) was relevant in the circumstances and it invited the broadcaster to make a submission on whether that standard was breached.
Broadcaster’s Further Submission
 Looking at Standard 9, TVNZ contended that the interests of child viewers were adequately considered when the programme was rated PGR and a verbal and written warning was given at the front of the episode.
 The broadcaster reiterated that the programme’s PGR classification allowed for material that was more suited to a mature audience. It maintained that PGR programmes were intended to be viewed by children in the company of a parent or other adult who could make a decision about whether they wished their child to view such material.
 TVNZ pointed out that the Authority had previously stated (see Decision No. 1996-029) that Shortland Street was targeted towards “a relatively sophisticated young adult audience”. It also noted that the Authority had found that the series was not intended for younger viewers and that “its PGR classification recognises that the material, while more suited for adult audiences, is not necessarily unsuitable for child viewers when subject to the guidance of a parent or adult”.
 The broadcaster stated that “sexual innuendo and inferred sexual activity is frequently included in PGR-rated programmes”. It considered that the sexual material included in the programme would not have disturbed or alarmed child viewers and found no breach of Standard 9.
 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.
Standard 9 (children’s interests)
 Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times, usually up to 8.30pm. The Authority notes that Shortland Street was rated PGR (Parental Guidance Recommended) meaning that the programme was more suited for mature audiences, but not necessarily unsuitable for child viewers when subject to the guidance of a parent or an adult.
 In the Authority's view, the scene in question was not suitable for child viewers, even if subject to guidance from a parent or other adult.
 The Authority considers that any sexual content or references during children's normally accepted viewing times should be subtle and inexplicit, or in the nature of sexual innuendo that would be likely to go over the heads of child viewers. On this occasion, the scene, which was prolonged and included the preceding kissing and undressing, built up to the sexual interaction between Gerald, who was confused about his sexuality, and Lindsay, who made no secret of his attraction. In the Authority's view, the scene was not sufficiently discreet in either its depiction of the sexual content, or in its treatment of the adult sexual themes, and was therefore unsuitable for child viewers.
 The Authority makes it clear that its findings have nothing to do with the fact that the scene involved two men; the scene would have been equally inappropriate if it had involved a heterosexual couple. Irrespective of the characters’ sexual orientation, the broadcaster did not adequately consider the interests of child viewers by including such an unambiguous sex scene in a programme broadcast at 7pm.
 Accordingly, the Authority considers that there are grounds upon which to uphold the complaint under Standard 9. It acknowledges that this would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. According to section 5 of the Act, any limit on the broadcaster’s right to freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society. The Authority has previously considered the children’s interests standard in relation to the Bill of Rights (see Decision No. 2008-066) and has concluded that Standard 9 is prescribed by law.
 In the Authority’s view, upholding a breach of the children’s interests standard on this occasion would be a reasonable and justified limitation on TVNZ’s right to freedom of expression. This decision highlights that the children’s interests standard requires broadcasters to consider carefully the depiction of sexual activity during children’s normally accepted viewing times. The Authority considers that this is not an unreasonable requirement to be placed on broadcasters.
 The Authority concludes that upholding this complaint would clearly promote the objective of Standard 9, which aims to protect children from broadcasts which might adversely affect them. Accordingly, the Authority upholds the complaint that the broadcast breached Standard 9 (children’s interests).
Standard 1 (good taste and decency)
 The Authority considers that the complainant’s concerns raised under the good taste and decency standard have been adequately dealt with in its consideration of Standard 9. Accordingly, it subsumes this part of the complaint into its consideration of the children’s interests standard.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an episode of Shortland Street on 30 April 2008 breached Standard 9 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.
 Mr Cross submitted that TVNZ should broadcast a formal apology along with a statement about how many complaints it received about the 30 April episode of Shortland Street.
 TVNZ argued that the number of complaints received was irrelevant. It said that it would like to apologise to the complainant for the offence caused by the episode, but that an on-air apology was not appropriate. It considered that, because the episode was broadcast over six months earlier, viewers were unlikely to remember the scene in question.
 TVNZ wrote that, given the Authority’s decision on the complaint, the process of appraising Shortland Street was under review to ensure that similar breaches did not recur. The broadcaster said that it had initiated increased and ongoing consultation with the production company around the appraisal process to ensure that the series adhered to its classification and time-band. Taking into account the high profile of Shortland Street, and the fact that the decision was likely to attract significant media attention, TVNZ submitted that publication of the decision was sufficient penalty.
 The Authority has considered the submissions from both parties and it agrees with TVNZ that an order is not warranted on this occasion. This decision clarifies the Authority’s expectations surrounding the broadcast of sexual content of this nature during the PGR time-band at 7pm. It notes that TVNZ has reviewed the appraisal process for Shortland Street and the Authority is satisfied that procedures have been put in place to ensure that similar breaches do not occur in the future. In addition, it acknowledges that the decision is likely to receive extensive publicity due to the nature of the complaint and the programme involved.
 In these circumstances, the Authority declines to impose an order.
Signed for and on behalf of the Authority
4 December 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Lewis Cross’ formal complaint – 30 April 2008
2. TVNZ’s response to the formal complaint – 9 June 2008
3. Mr Cross’ referral to the Authority – 18 June 2008
4. TVNZ’s response to the Authority – 9 July 2008
5. TVNZ’s further submissions – 4 September 2008
6. Mr Cross’ submissions on orders – 29 October 2008
7. TVNZ’s submissions on orders – 17 November 2008