BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

Playboy Late Night / After Dark, a programme broadcast by Sky Television on 8 October

1993 at 10.45pm, featured adult entertainment, including items about Playboy women.

Mr Phillip Smits complained to Sky Network Television Services Ltd that parts of the

programme breached broadcasting standards because they were pornographic, lacked

good taste and were demeaning to women.

Declining to uphold the complaint, Sky responded that the programme did not breach

broadcasting standards because it was broadcast in adult viewing time, it was clearly

identified in its advertising as being suitable for adults and that parental control cards

were available for parents who did not wish their children to watch the programme.

Dissatisfied with Sky's decision, Mr Smits referred the complaint to the Broadcasting

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

For the reasons given below, a majority of the Authority upheld the complaint that the

programme breached the standard requiring good taste and decency and a majority of the

Authority declined to uphold the complaint that the programme discriminated against

women.

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 has

determined the complaint without a formal hearing.

A magazine-style programme entitled Playboy Late Night / After Dark was screened on

Sky Network Television Services Ltd on 8 October 1993 at 10.45pm. It contained several

items, including a story about a former dancer who had had breast implants, a hidden

camera feature of reaction to a prolonged passionate embrace, the career of a former

Playboy centrefold as a potter, a ribald short story in a medieval setting, mud sculpting of

nude women, topless driving, a mock advertisement and an item which featured a former

Playboy centrefold and included a fantasy strip-dance sequence in a car workshop, a nude

outdoor scene with other women and a provocative sequence in which the model

undressed and assumed a variety of poses.

Mr Smits complained to Sky that the item breached the standards which require

broadcasters to observe good taste and decency and to avoid screening programmes that

encourage denigration of and discrimination against women. He alleged that parts of the

programme were pornographic, identifying specific aspects which, in his opinion,

objectified and demeaned women. On this basis, he argued, the programme was in breach

of broadcasting standards.

Declining to uphold the complaint, Sky explained that it reached the conclusion the

programme did not breach broadcasting standards after taking into account the fact that

Playboy Late Night / After Dark was screened at 10.45pm in an adult time slot, was

clearly identified in its advertising as suitable for audiences aged 18 years of age and over

and further, that children could be denied access to such a programme if parental control

devices were used. Sky maintained that in all the circumstances it did not consider that the

programme breached the standard of good taste and decency, nor did it denigrate any

section of the community. It argued that it did not believe its role was to be the arbiter of

decency for its customers but that its job was to provide its subscribers with as wide a

variety of programming as possible within the parameters of the New Zealand film rating

system and appropriate time slots.

Noting that, at the time of writing, it had over 125,000 subscribers, Sky reported that it

had not received any other formal complaint about the programme.

As neither Mr Smits nor Sky nominated any standards against which to assess the

complaint, the Authority has decided the following standards in the Codes of Broadcasting

Practice for Sky Television encompass the concerns. They read:

            Sky undertakes in the preparation and presentation of programmes

            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 will not permit:

            P25.     The portrayal of persons in programmes in a manner that encourages
                        denigration of, or discrimination against, sections of the community on
                        account of sex, race, age, disability or occupational status, or as a
                        consequence of religious, cultural or political beliefs.

This is the first time the Authority has dealt with a complaint about this type of material

and it has expended effort and time acquainting itself with legal precedents on the subject

of discrimination and pornography and talking informally with people involved in the

issues.

The Authority also adds that it does not see this decision as its final view on the subject of

pornography and its social effects.

Applicability of the Codes of Broadcasting Practice to Sky Television

Before considering the complaint in detail, the Authority observed that the introductory

statement to the Codes of Broadcasting Practice for Sky Television acknowledges that

although Sky has an obligation to comply with the Broadcasting Act, its own Code of

Practice is different from that applying to free-to-air broadcasters. The differences take

into account the fact that there is a direct relationship between the subscribers and the

broadcaster, that subscribers are aware of the general nature of the programming

provided and that they themselves exercise control over the type of programmes they

watch. The Introduction to the Code concludes:

There is therefore, we believe, a case for a lesser degree of programme content

regulation on Pay TV since it is a discretionary service to particular subscribers

rather than a [free-to-air] broadcast service to the community at large.

The Authority approved Sky's Code and that introductory statement. However it does not

accept Sky's position in the correspondence on this complaint that

...as a broad base product supplier we do not feel we are in a position to be

the arbiters of decency for our customers. Instead we believe it is our job to

supply our subscribers with as wide variety of programming as possible, and

let the New Zealand film and television censors be the guides on issues of

morality. To this end we use the New Zealand film rating system and

differing time slots to provide people with the ability to make individual

choices as to what they do and do not want to watch.

First, the Broadcasting Act 1989 requires all broadcasters to maintain standards consistent

with the observance of good taste and decency (s4) and to develop and observe codes in

relation to safeguards against the portrayal of persons in a manner that encourages

discrimination. Unless the legislation is changed to specifically exclude Sky from its

jurisdiction, Sky is obliged to observe those standards.

Sky argued that it was not supposed to be the arbiter of standards for society and that it

relied on the film and video censors to classify programmes. The Authority considered that

it was inadequate for Sky to rely on the Chief Film Censor and Video Recordings Authority

(now replaced by the Classification Office) since those bodies do not have an overriding test

of good taste and decency, nor a prohibition on the encouragement of discrimination.

Therefore Sky cannot delegate the performance of its different obligations to the

Classification Office, since it cannot rely on its rulings to satisfy the Code of Broadcasting

Practice.

Secondly, the Authority noted that Sky was not like a cinema or a video hire service, but

offered a service which was halfway between those and free-to-air broadcasting.

Choosing to go to a film in a cinema and choosing to hire a video are different from

watching Sky television in that both the former require active choice by the consumer,

whereas with Sky, once the decision to subscribe has been made, viewers can only make

passive choices, since the scheduling decisions are made by Sky.

Further, the Authority observed that the standards in the Sky Television Code of

Broadcasting Practice were developed by Sky, and approved by the Authority, as required

under s.21 of the Broadcasting Act 1989. They comprise Sky's own code and the

Broadcasting Act places the onus on the broadcaster to ensure that those standards are

maintained.

Finally, the Authority noted, if parental control is absent, young people can access this type

of programme directly, whereas they are less able to attend an AO cinema film or hire an

AO video due to the age restrictions.

The Authority also adds that when senior executives of Sky Television made submissions to

it in support of the network's codes, they were asked specifically whether they intended to

screen "soft porn" programmes, as had been widely rumoured. Their reply was an

unequivocal "No". Whilst this has had no bearing whatever in the Authority's

deliberations, it expresses its extreme disappointment that it has been blatantly misled.

Standard P2 Complaint

The first aspect of the complaint the Authority considered was that the programme was in

breach of standard P2, which requires the broadcaster to observe standards of good taste

and decency.

The Authority considered each of the items in the programme independently. Most

contained some female nudity but, with the exception of two vignettes and a mock

advertisement, the Authority considered that the display of nudity was arguably within

the context of each item's theme. The exceptions were the "ribald short story" and several

items featuring the September 1986 Playboy centrefold model, both of which focused on

female nudity in a more gratuitous and salacious manner than the other items and the

mock advertisement for desserts which was, in the Authority's view, extremely distasteful.

The ribald short story featured full female nudity and scenes of simulated intercourse. The

story portrayed the hero scheming to escape from his frigid, shrewish wife to enjoy the

sexual charms of his maid. Meanwhile, the shrewish wife was seduced by a younger man

with whom she willingly consented to sex.

The second item was the Playboy model sequence which featured Miss September 1986,

whose interest in cars was the inspiration for a fantasy strip-dance sequence set in a car

workshop where she danced nude with three mechanics to music and lyrics which

repeated "She's the kind of girl that you want". The next sequence portrayed her with

three other former centrefold models in an outdoor scene which began with river rafting

and continued with all four assuming various provocative nude poses. The final sequence

featured Miss September in an indoor strip-dance routine and a scene where she reclined

on a sofa in a variety of provocative nude poses, including simulated masturbation.
  

The mock advertisements for desserts showed four desserts available from Barb's Big Girl

restaurant. The first was an ice-cream sundae constructed between a woman's breasts; the

second showed what was described as a melon cup where a dish of diced fruit was held

beneath a woman's breast so that her nipple appeared to be part of the dessert; the third

showed a cherry and chocolate sauce being poured over the lower part of a woman's torso;

and the final one a large banana split which, like the first, showed an ice-cream

concoction constructed between a woman's breasts.

The test the Authority applied was whether, in the context, such material was in breach of

standard P2. The contextual argument takes into account the fact that Sky is a

subscription television service, the hour when the programme was screened (10.45pm)

and that the programme was advertised both in newspapers and in Sky Watch magazine

as being suitable for audiences aged 18 and over. Further, parental control devices are

available to enable subscribers to ensure that children are unable to access such

programmes.

The Authority considered each of the contextual arguments independently. It accepted

that subscribers to Pay television have made a choice to buy the service and are aware of

the types of programming it provides. When a programme is clearly advertised as being

suitable for adults, there is little doubt that it usually contains scenes of either sex or

violence that are not for general viewing. Further, Sky subscribers can restrict access to

children by using parental control cards (although the Authority understands relatively

few of these have been purchased by subscribers) or by other electronic techniques. These

factors, in combination with a late screening hour persuaded the minority of the

Authority that the programme, while at the limit of acceptability, did not breach standard

P2. At the same time, the minority acknowledged that it did not have enough

understanding of public views to say categorically that this programme could screen at

this hour on pay TV. It noted that the Authority may commission public opinion research

to guide it on what the public thinks about soft porn on pay television.

The majority also acknowledged that it had difficulty in making its decision without

research to guide it and agreed that it would be a high priority for it to commission

research which would enable it to gauge decisively public opinion on this issue. However,

it did not believe that 10.45pm was sufficiently late for the broadcast of Playboy Late

Night / After Dark. In its very first decision on good taste and decency matters (Dec No:

2/90) the Authority noted that one of the tests for making decisions based on the context

was that of the expectation of the audience. In the Authority's view the time slot of

10:45pm was within "normal viewing times" on a Friday night (it noted that in recent

scheduling the programme has been screened at the earlier time of 10.30pm) and

notwithstanding the Adults Only classification the audience would expect programming

which would not be likely to offend the reasonable adult viewer. It noted that women

comprise 50% of adult viewers and their well-documented negative reactions to material

which dwells upon women's sexual attributes must be taken into account in this

assessment.

In particular, it considered the ribald short story, the mock advertisement and the

centrefold vignette to be in breach of standard P2 when broadcast at that time. These

items were at the outer limit of what was acceptable at any time on pay television and, in

the majority's view, should only be screened so late that it is clearly signalled to be outside

of mainstream programming. Accordingly the majority upheld the complaint that

standard P2 was breached.

Standard P25 Complaint

The second aspect of the complaint was that the programme encouraged the denigration

of and discrimination against women. The complainant argued that because the material

was pornographic, it objectified and demeaned women. He cited examples from the

programme in support of his contention, arguing that the most blatant breaches occurred

in the two items identified above (the ribald short story and the centrefold video). Mr

Smits complained that the short story stereotyped the two women (one as a frigid wife, the

other as a slut), minimised and trivialised adultery, promoted a rape myth and objectified

women. The centrefold segment, he argued, not only promoted the consumption of

pornography in the workplace but also acted out a male fantasy in the sequence in which

the female mechanic stripped for the three male mechanics.   He maintained that the

outdoor sequence in that segment had voyeuristic and lesbian overtones and employed

pornographic camera techniques, while the concluding sequence infantalised the woman

as well as objectified her.

Sky's response was that it did not consider that the programme in any way denigrated any

section of the community and further, that it was not the arbiter of morality for society.

Dealing with this aspect of the complaint was more problematic for the Authority.

Although the introduction to the Code of Broadcasting Practice for Sky Television allows a

lesser degree of programme regulation than the free-to-air Codes, the Authority, in its

interpretation of standard P25 is bound by its legislative responsibilities, in particular

section 21(1)(e)(iv) of the Broadcasting Act 1989 which states:

            (1)        The functions of the Authority shall be -

                        ...

                        (e)   To encourage the development and observance by broadcasters of
                                codes of broadcasting practice appropriate to the type of
                                broadcasting undertaken by such broadcasters, in relation to -

                                                ...

                                        (iv)  Safeguards against the portrayal of persons in programmes
                                               in a manner that encourages denigration of, or discrimination
                                               against, sections of the community on account of sex, race,
                                               age, disability, or occupational status or as a consequence of
                                               legitimate expression of religious, cultural or political beliefs:

The Authority concluded that standard P25 is an absolute standard which is not able to be

interpreted to take into account the contextual arguments considered under standard P2

above.

Standard P25 imposes on the broadcaster an obligation not to permit the portrayal of

persons in a manner that encourages denigration of, or discrimination against, sections of

the community on account of their sex. In previous decisions (in particular Decision No:

75/93), the Authority has interpreted denigration, the first limb of the comparable free-

to-air standard (G13) to mean that the activities portrayed were responsible for

blackening the reputation of women as a class. In that decision it decided to apply the

lower threshold test of discrimination, the alternative limb of standard G13, which it

interpreted as meaning that the activities portrayed encouraged different treatment of

women. The majority, in holding that the factual exemption in standard G13 (not

contained in standard P25) applied in Decision No: 75/93, was not required to interpret

the standard further. The Authority noted that the exceptions found in standard G13,

had they been available, would not have applied in this broadcast.

Consistent with its finding in Decision No: 75/93, the Authority decided that in this

instance also it would apply only the alternative limb of standard P25, ie the lower

threshold test of discrimination. In the Convention on the Elimination of All Forms of

Discrimination Against Women ratified by New Zealand in 1984, the concept of

discrimination is dealt with in Article 5 which requires signatories to:

            ...take all appropriate measures:

            a)   To modify the social and cultural patterns of conduct of men and women,

                  with a view to achieving the elimination of prejudices and customary and

                  all other practices which are based on the idea of the inferiority or the

                 superiority of either of the sexes or on stereotyped roles for men and

                 women.

The Authority accepted that s.21(1)(e)(iv) of the Broadcasting Act 1989 and the Codes of

Broadcasting Practice's general prohibition of the encouragement of discrimination are

consistent with the Convention.

The Authority then considered whether the screening of the programme encouraged

discrimination against women. It was divided in its interpretation of encourage. The

majority ascribed an active meaning to encourage and considered that for a programme

to encourage discrimination against women, it would have to promote actively practices

that were discriminatory. It believed that in the context of the well-known Playboy genre,

the "average viewer", who the Authority is charged to represent, would not be likely to

treat women differently as a result of having viewed the programme.

In a programme principally designed as entertainment for men, the majority was of the

view that it was light-hearted and sufficiently distanced from reality that the average

viewer would not have been motivated to think disparagingly about women as a result of

having seen it. It considered that there was no attempt to represent women as inferior.

The majority commented that men and women have different sexual responses and that

the way they react to sexual imagery is likely to remain different in view of the combined

weight of human genetics and social history. It was of the view that the sexual play

depicted in the programme involved role-playing which, while based on those differences,

would not be likely to lead viewers to the conclusion that the behaviour being shown was

in itself proof of superiority or inferiority. Accordingly, the majority concluded that the

programme did not encourage discrimination against women in contravention of

standard P25.

The minority disagreed. In its view it is not necessary, in order to encourage

discrimination against women, that viewers be actively encouraged to treat women

differently as a result of watching the programme. Such a high threshold test, it believed,

would virtually negate the protective purpose of standard P25 and the comparable

standards for free-to-air broadcasters. Rather, in its view, standard P25 (and the

comparable free-to-air standards) would be breached by a broadcast the dominant, or

significant, effect of which was to exploit and reinforce negative stereotypical notions

about women, including the notion that women are inferior to men. The dominant effect

of the Playboy programme, the minority considered, lay in its almost relentless message

that women are to be valued primarily for their physical attractiveness and ready sexual

availability to men. It was evident to the minority that the programme, by its dependence

on the titillation of its audience, exploited those stereotypical notions about women.

The minority did not agree that because the Playboy genre is a predictably familiar fantasy

entertainment it is therefore relatively harmless. It considered that women are

disadvantaged by this type of programme, by the reinforcement of negative stereotypes,

even although it is not "hard" pornography. In fact because the programme may be

regarded as comparatively innocuous and therefore more readily accepted as legitimate

entertainment, the minority considered its detrimental effects to be more insidious. In its

view, the Playboy type of material, by being more accessible and "normal" than hard core

pornography reinforces in a more "palatable" manner the stereotypical notions about

women which contribute to women's lack of power and status in society.

Although the minority acknowledged that the theme of the short story sequence was

fanciful, it noted that nevertheless the manner in which the characters were portrayed

perpetuated many common stereotypes about sexual behaviour and relationships. As well

as showing the women in subordinate roles, one was portrayed as a shrewish, frigid wife

and the other as a sexually available servant. The husband occupied his time scheming

how to seduce the maid. In one scene, the wife was seized from behind by a young man,

but she quickly succumbed to his charms, thus perpetuating the rape myth - that women

who resist sexual advances do not mean it and are in fact always sexually available.

The video centrefold sequence had no story line except for a brief fantasy segment set in a

car workshop. The minority observed that the item focused almost exclusively on the

woman's body in a variety of provocative poses, portraying her as a sexual object. In its

view, such a portrayal helps foster attitudes which perceive women as a group available

for the pleasure of men, not as equal partners. It noted a particular concern about the

impact of such material on men, especially younger men, whose experiences of life may

not challenge the view of women portrayed in the programme.

The mock advertisement for desserts also portrayed women as sexual objects because it

reduced them to body parts, with breasts and parts of a woman's torso displayed as a

dessert dish.

Accordingly, the minority concluded that the programme was in breach of standard P25.

For the reasons set forth above a majority of the Authority upholds the

complaint that Sky Television Network's broadcast of Playboy Late Night /

After Dark on 8 October 1993 at that time in the evening breached

standard P2 of the Sky Television Code of Broadcasting Practice.

A majority declines to uphold the complaint that the programme breached

standard P25 of the Sky Television Code of Broadcasting Practice.

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

Broadcasting Act 1989. Since this is the first complaint lodged against Sky Television, it did

not believe an order was appropriate in the circumstances. However the Authority trusts

that Sky will take cognisance of this decision when it plans its schedules in future.

The Authority noted Sky's displeasure at the tenor of the correspondence from Mr Smits,

which contained intemperate and abusive language. The Authority also records its

displeasure at the style Mr Smits has adopted in his complaint, in spite of its request to him

to be more moderate in his language. He has been advised that no further complaints will

be accepted if couched in similar language.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
15 August 1994

Appendix

Mr Smits' Complaint to Sky Television Network Services Limited

In a letter dated 17 October 1993, Mr Smits complained to Sky Network Services Limited

that the broadcast of the programme Playboy Late Night/ After Dark on 8 October 1993

at 10.45pm was in breach of broadcasting standards.

Quoting the TV Guide description of the programme as "Adults only sexy fun and

entertainment" and the Sky Watch description as "an amusing magazine style programme

of adult entertainment including factual and humorous items including Playboy's most

attractive stars", Mr Smits complained that the programme was pornographic because it

contained material that objectified and demeaned women. This, he claimed, not only was

in breach of the standard requiring good taste and decency but also in breach of the

standard requiring broadcasters to avoid denigration or discrimination against women.

He illustrated his complaint by referring to specific segments of the programme.

Sky's Response to the Formal Complaint

Sky advised Mr Smits of its decision in a letter dated 28 January 1994.

It reported that it did not find Mr Smits' complaint justified, reaching that conclusion

having regard to:

1.         The programme was screened at 10.45pm in AO time.

2.         It was advertised as suitable for audiences 18 and over.

3.         Sky provides parents with control cards which restrict access by children to such

            programmes.

4.         It was not considered that the programme breached standards of good taste and

            decency nor did it denigrate any section of the community.

5.         Out of 125,000 Sky subscribers, this has been the only complaint. Sky noted that

            Mr Smits was not himself a subscriber.

Concluding, Sky commented that it found the language in Mr Smits' complaint to be

highly offensive.

Mr Smits' Complaint to the Broadcasting Standards Authority

Dissatisfied with Sky's decision, in a letter dated 24 February 1994, Mr Smits referred his

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

Act 1989.

Commenting first on the length of time Sky took to respond to the complaint, Mr Smits

rejected Sky's arguments. He maintained that the material shown on Playboy after Dark

was pornographic, that it objectified women and devalued them.

He argued that the time of the broadcast was irrelevant, and that the material was

unsuitable no matter what time it was screened. Mr Smits pointed out that many New

Zealanders found pornography offensive because it demeans and oppresses women.

Reacting to Sky's comment that this was the only complaint received about the

programme and was from a non-subscriber, Mr Smits angrily retorted that Sky was

watched by many non-subscribers and that the fact that only one complaint was received

did not mean that the complaint was invalid.

Mr Smits also reacted angrily to Sky's criticism of his style of writing. He wrote about the

author of Sky's letter:

He is the paid weazler for SKY porno TV who broadcast pornography - which is an

affront to me. We are talking here about FUCKING SHIT PORNOGRAPHY - not

adults-only-sexy-fun-and-entertainment...

In his Complaint Referral Form Mr Smits described the action taken by Sky as insulting.

He wrote:

They cannot seem to understand that control cards or `R18' ratings or time slots do

NOT mean that they can broadcast porn.

He was also critical of the fact that Sky replied at the deadline (of 60 working days) with

no apology or reason given.

Sky's Response to the Authority

As is its practice, the Authority sought the broadcaster's response to the complaint. Its

letter is dated 28 February 1994 and Sky's reply, 7 March.

Sky maintained that its position on the complaint remained the same as in its original

reply. It also added that as a broadbase product supplier it did not believe it was in a

position to be the arbiters of decency for its customers. Sky wrote:

Instead we believe it is our job to supply our subscribers with as wider variety of

programming as possible and let the New Zealand film and television censors be the

guides on issues of morality. To this end we use the New Zealand film rating system

and differing time slots to provide people with the ability to make individual choices

as to what they do and do not want to watch.

Mr Smits' Final Comment

When asked to comment on Sky's reply, Mr Smits, in a letter dated 19 March 1994 took

issue with points made by Sky.

He disagreed with Sky's assessment of itself as not being the arbiter of decency for its

customers, arguing that they purchased the material with full knowledge of its content.

He described Sky as a supplier of pornography and accused it of being irresponsible about

its programming.

Mr Smits noted that Sky had not tried to deny that the material was pornographic. He

argued that the material was dishonest and endangered women and children and its

broadcast was a breach of human rights.

Finally, Mr Smits noted that Sky was partly owned by TVNZ, itself owned by the

government and he lamented the moral bankruptcy of both TVNZ and the government.