Lowe and Television New Zealand Ltd - 1994-051
- I W Gallaway (Chair)
- R A Barraclough
- L M Dawson
- J P Lowe
BroadcasterTelevision New Zealand Ltd
A view of male genitalia was electronically obscured during a sequence in the programme
Heartland: Glenorchy in which a group of naked men was shown sliding along a patch of
wet grass. The programme was broadcast on Channel One at 8.30pm on 15 March
Mr Lowe complained to Television New Zealand Ltd that the use of the electronic
technique breached a number of broadcasting standards as it encouraged unhealthy
attitudes by implying parts of the body should be hidden.
Maintaining that it was contrary to the expectations of the majority of viewers to portray
a close up shot of a penis in a programme aimed at a family audience, TVNZ declined to
uphold the complaint. Dissatisfied with TVNZ's decision, Mr Lowe 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 declined to uphold the complaint.
The members of the Authority have viewed the part of the programme to which the
complaint relates and have read the correspondence (summarised in the Appendix). As is
its practice, the members have determined the complaint without a formal hearing.
The episode of Heartland: Glenorchy broadcast on 15 March, showed that some
community activities being filmed had to be postponed because of heavy rain. It then
screened some naked men who, while skylarking, slid through the wet grass on their
stomachs. One man, while getting to his feet, gestured at the camera close by. Through
the use of an electronic mask his genitalia were not visible although it was possible to draw
the conclusion that the picture was blurred because of some rain on the camera lens.
Mr Lowe complained to TVNZ that the use of the technique to mask the genitalia breached
the following standards in the Television Code of Broadcasting Practice. The first six
G1 To be truthful and accurate on points of fact.
G2 To take into consideration currently accepted norms of decency and taste in
language and behaviour, bearing in mind the context in which any
language or behaviour occurs.
G3 To acknowledge the right of individuals to express their own opinions.
G7 To avoid the use of any deceptive programme practice which takes
advantage of the confidence viewers have in the integrity of broadcasting.
G12 To be mindful of the effect any programme may have on children during
their normally accepted viewing times.
G13 To avoid portraying people in a way which represents as inherently inferior
or is likely to encourage discrimination against, any section of the
community on account of sex, race, age, disability, occupational status,
sexual orientation or the holding of any religious, cultural or political belief.
This requirement is not intended to prevent the broadcast of material
i) factual, or
ii) the expression of genuinely-held opinion in a news or current
affairs programme, or
iii) in the legitimate context of a humorous, satirical or dramatic
The other standard cited reads:
G19 Care must be taken in the editing of programme material to ensure that the
extracts used are a true reflection and not a distortion of the original event
or the overall views expressed.
There is some confusion in the correspondence, possibly because of a typing error, whether
a breach of standard G5 is also alleged. In its assessment of the complaint, the Authority
has assumed that Mr Lowe has also alleged a breach of this provision. It requires
G5 To respect the principles of law which sustain our society.
The essence of Mr Lowe's complaint was what he described as the objectionable and
dishonest portrayal of innocent human nudity which, in his view, could lead to an
unhealthy and unnatural attitude towards the human body. Viewing nudity through
glasses tinted with sexuality, he wrote, could impede natural sexual development and could
result in aberrant violent behaviour by males. The specific aspects of the complaint under
each nominated standard are contained in the appendix.
TVNZ responded to each aspect of the complaint (also dealt with in the appendix) but
focussed on the allegation that the broadcast breached the good taste and decency
requirement in context contained in standard G2. It reported that the use of the masking
technique had been the compromise reached between the producers of the programme
and itself when it had sought, initially, the deletion of a three second segment section of
The decision to use the electronic masking technique, TVNZ said, was made on the basis
that male nudity, and especially a close-up view of a penis, was not acceptable to the
majority of viewers in a documentary screened in family viewing time.
TVNZ advised the Authority that it accepted that a number of people sympathised with Mr
Lowe's view that a brief undistorted record of the human form in its natural state did not
offend but, it maintained, such a view was not the accepted norm in a programme
broadcast for a family audience. In his final comment, Mr Lowe persisted with his
complaint that the concealment of innocent behaviour contained a corrupting message,
What is best for our community: the fear based, bland and ultimately debilitating,
American way; or the way of openness and honesty already accepted here, by
previous television management, community standards authorities, the courts, and
the quiet majority?
In assessing the complaint, the Authority focused on the standard G2 requirement for
good taste and decency in context. It agreed with TVNZ that it would contravene the
accepted norms of decent behaviour to show, without good reason, a close-up of male
genitalia on a programme which TVNZ explained was targeted at a family audience.
Indeed, the Authority would like to commend TVNZ for the compromise involved in the
broadcast. As noted, the portrayal of male genitalia would likely have given rise to
complaints while the deletion of the segment would have removed part of the programme
which depicted some exuberant behaviour. The Authority believed the compromise
retained the light-hearted aspects of the item in such a way which did not focus on the
technique used to remove the broadcast of the genitalia.
The Authority would also record that it believed Mr Lowe made some valid points. In
response to his specific question about the scale applied when deciding on the level of
offence which it believes unacceptable - and in contravention of standard G2, the
Authority records that it is often not possible to apply a specific formula. As rulings on
community standards inevitably involve a degree of subjectivity, the Authority approaches
complaints on a case-by-case basis to ensure that the concern in the standard providing
for context is given full consideration.
In regard to this complaint, the Authority believed TVNZ took the sensible course in
screening the item in the format shown. By doing so, the Authority concluded, TVNZ
neither breached standard G2 nor any of the other standards nominated explicitly or
implicitly by Mr Lowe.
For the reasons set forth above, the Authority declines to uphold the
Signed for and on behalf of the Authority
30 June 1994
J P Lowe's Complaint to Television New Zealand Limited
In a lengthy letter dated 16 April 1994, Mr J P Lowe of Clive complained to Television New
Zealand Ltd about part of the programme Heartland: Glenorchy broadcast at 8.30 on 15
March on Television One.
A sequence containing a "spontaneous bit of horseplay", he wrote, showed three naked
men sliding through the wet grass on their stomachs. However, through the use of a
technique he called a "fuzz-box", a "smidgen of pubic hair" was blocked out. After
enquiries with the programme makers, he discovered that the "fuzz-box" technique was
the compromise between total deletion and no cuts - the respective positions of TVNZ and
the producers of the programme.
Mr Lowe argued that the broadcast breached the standards G1, G2, G3, G7, G12, G13
and G19 in the Television Code of Broadcasting Practice.
It breached the requirement for truth and accuracy in standard G1 as a factual image was
Standard G2 requires good taste and decency in context and he cited an Indecent
Publications Tribunal decision from 1968 that pleasant and unretouched nude pictures
could not be regarded as objectionable.
The New Zealand Bill of Rights Act provides that it is an offence to discriminate on the
grounds of an ethical belief and as the broadcast involved suppression merely on the
grounds of unorthodoxy, he said, it breached standard G3 which requires broadcasters to
acknowledge the rights of individuals to express opinions.
The prohibition on the use of any deceptive programme practice - standard G7 - was
contravened as the intent to cut the scene was "clearly deceptive".
While acknowledging that the broadcast took place in "AO" time, Mr Lowe considered that
it breached the requirement in standard G12 requiring broadcasters to keep children in
minds as the technique used drew attention to the pubic area and could lead to children
think that their own bodies were unacceptable.
Standard G13 requires broadcasters not to show any group as inherently inferior and to
avoid encouraging discrimination or denigration. Children, Mr Lowe argued, were
discriminated against through the concealment of the human form.
Finally, Mr Lowe believed that the requirement in standard G19 to avoid distortion
through editing was breached.
In a further letter to TVNZ dated 25 April 1994, Mr Lowe commented that he was not
arguing for full frontal nudity in all situations. Rather, it should only be subject to
proscription when not displayed in an innocent manner.
TVNZ's Response to the Formal Complaint
TVNZ advised Mr Lowe of its Complaints Committee's decision in a letter dated 4 May
1994 when it reported that the complaint had been assessed under the nominated
Noting that the scene showed the naked men skylarking spontaneously, TVNZ stated that
an electronic mask had been used for three seconds to conceal the close up view of one
man's pubic hair and genitals. It continued:
As background, the [Complaints] Committee heard that the appraiser (censor) had
originally ruled that the 3-seconds should be removed from the shot, but agreed to
a compromise with the producer which saw the electronic masking being applied.
In the view of the committee it was done professionally and, while clearly a
masking device, looked for all the world like a big drop of rain on the camera lens.
In dealing with the standards, TVNZ considered first the requirement in standard G2 and
expressed the opinion that "currently accepted norms of decency and taste" was the critical
phrase. Male nudity and especially the close up view of a penis, it considered, was not
acceptable in a documentary to the majority of viewers. Accordingly, it decided that the
appraiser had been correct in requiring the portrayal of the penis be either removed or
As nothing was untruthful or inaccurate about the sequence, standard G1 was not
contravened. Everyone had expressed an apposite opinion as required by standard G3 and
there was no deceptive programme practice in contravention of standard G7. The mask
had been applied because of its concern for children as required by standard G12 and no
breaches of standards G13 or G19 had occurred.
The [Complaints] Committee was sorry that you felt as you did about this
programme, but believed that your views (respected though they are) are probably
out of step with prevailing community attitudes which TVNZ strives to reflect. It
was unable to find that any of the codes quoted by you had been breached.
TVNZ also apologised that Mr Lowe had been misinformed about the reasons for the use of
the electronic mask, adding that there was no ban on full-frontal nudity but context was
all-important, and Heartland was clearly aimed at a family audience.
Mr Lowe's Complaint to the Broadcasting Standards Authority
Dissatisfied with TVNZ's response, in a further lengthy letter (nine pages of single spaced
A4 plus four pages of appendices) dated 13 May 1994 Mr Lowe referred his complaint to
the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
Mr Lowe began by explaining his philosophy about sexual development - especially about
the impediments to its natural development which could result in such behaviour as male
violence. He expressed the view that if nudity was filtered through sex-tinted glasses, a
subtle corruption occurred to the natural development process.
With regard to Heartland: Glenorchy, he wrote:
This complaint occurred because it is the first time I've seen masking applied as
reactionary censorship to simple nudity in this country. American rules requiring
"fuzz boxes" automatically put the human body back behind the bike shed from
where it has begun to emerge in New Zealand.
He referred to a number of programmes over the last 20 years or so which had involved
the brief exposure of genitalia about which there had been no complaints as far as he was
aware. He also referred to public opinion surveys which, he argued, indicated that male
nudity seen from behind was not a major concern and he referred to what he regarded as
the healthy acknowledgement of nudity on specific occasions.
Questioning to whom TVNZ's Complaints Committee was accountable, he expressed
concern that the appraiser's objection on this occasion could become a self-fulfilling
... if the exposure is rare, it becomes rarer to the point eventually of being assumed
to be unacceptable.
He proceeded to discuss the specific standards and, for the reasons given in the original
complaint, maintained that the broadcast breached the standards nominated. He focussed
on standard G2 - good taste and decency in context - and felt that whereas he might have
understated the portrayal by the use of the phrase "a smidgen of pubic hair", TVNZ had
overstated the scene by referring to a "close-up of a male penis". He referred to the
Authority's survey of community standards and maintained that, apart from a minority
of fundamentalist Christians, the community in general was fairly relaxed about sex and
nudity on television. He opined:
The implication is either there is one (or more) of these in the TVNZ censors' office
or the appraisers have been 'sucked in' by their noise.
Discussing further the Authority's survey, he concluded:
In other words: I maintain the objective evidence including that commissioned by
the Authority [see Appendix i]: shows that a clear majority would accept that shot
in that context and that frame for those 3 seconds as "unexceptionable" [sic].
He contested TVNZ's findings that the broadcast did not contravene standards G3, G5, G7,
G12, G13 and G19.
In conclusion, in contrast to TVNZ's view about what could be shown in programmes
designed for family audiences, he stated:
My contention is first that a brief wholesome undistorted record of the human
form in its natural state is clearly acceptable to a majority given the low level of
concern about these issues shown in the AGB McNair survey, High Court decisions
and my own investigations.
Second, the applied distortion is corrupting by the implication of its message to
children: which may have dangerous consequences for them as adults. On those
grounds alone it is far safer to avoid the potential for harm.
He concluded with the following statement:
Essentially, I suggest the public have three valid expectations of the media: that
they are honest, fairly respect all views, and resist corruptive influences. Distorting
reality to indicate that some part of some people in some communities must be
proscribed: is dishonest, discriminatory and corrupting.
I see no humanitarian alternative to upholding this complaint.
In a further letter to the Authority dated 31 May, Mr Lowe offered to supply the
Authority with the Indecent Publications Tribunal material to which he referred. He also
asked what level of offence was considered unacceptable by the Authority in free to air
broadcasting and commented:
The real issue is the question of polarised opinion: should the loudest squeak be
allowed to consume all the oil?
TVNZ's Response to the Authority
As is its practice, the Authority sought the broadcaster's response to the referral. Its letter
is dated 27 May 1994 and TVNZ's reply, 2 June.
It reported that it had little to add to its 4 May letter to Mr Lowe, observing that there
were a number of people - both within TVNZ and in the community at large - who would
sympathise with his views. However, it also believed that there were a considerable group
in the community who would find the explicit view of a penis (whatever the context)
unacceptable in a programme aimed at a family audience.
TVNZ, it reported, had chosen to use an electronic mask to ensure that a moment of joyful
exuberance was retained in the programme.
Mr Lowe's Final Comment to the Authority
When asked for a brief comment on TVNZ's response, in a letter dated 13 June 1994 Mr
Lowe withdrew his comments about zealots at large in TVNZ in view of its conciliatory
Noting that TVNZ acknowledged that there were two sides to the issue but had accepted
that the portrayal of a penis in a programme aimed at a family audience was not
acceptable to the majority in the community, Mr Lowe maintained that TVNZ was
incorrect in its conclusion. He also commented that TVNZ, in wanting to broadcast a
moment of "joyful exuberance", had resiled from its ruling that the segment should be
deleted. Arguing that although TVNZ's appraiser might not be zealots, they acted as if in
fear of them and he concluded:
Does the Authority wish to have fear encouraged in the community? The fear of
"God's image" by concealing a bit of the image, simple knowledge is denied; worse:
the innocent are given an essentially corrupting message. That is obviously not
What is best for our community: the fear based, bland and ultimately debilitating,
American way; or the way of openness and honesty already here, by previous
television management, community standards authorities, the courts, and the quiet