BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

McKay and Television New Zealand Ltd - 1998-031

Members
  • S R Maling (Chair)
  • R McLeod
  • L M Loates
  • J Withers
Dated
Complainant
  • Gordon McKay
Number
1998-031
Channel/Station
TV One


Summary

The New Zealand-made film, Desperate Remedies, was shown in the Summer

Playhouse series on TV One on 14 December 1997 beginning at 8.30 pm.

Mr McKay complained to the broadcaster, Television New Zealand Limited, that the

film was bizarre and pornographic. He was concerned, he wrote, that such a film was

shown relatively early in the evening when many children were on school holidays,

and he questioned whether any warning of its content had been given. On both counts,

he was concerned, he said, about its possible effects on children.

TVNZ responded that the film had been certified "AO" and was preceded by a

warning about its content. It denied that the film was pornographic and bizarre.

Suggesting that the film was unusual and surreal, with exaggerated sets and dramatic

circumstances, TVNZ wrote that it believed that screen space should be available for

innovative and experimental material.

Dissatisfied with the broadcaster's response, Mr McKay referred his complaint to the

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

For the reasons given below, the Authority declines to uphold the complaint.


Decision

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

the correspondence (summarised in the Appendix). On this occasion, the Authority

determines the complaint without a formal hearing.

The Sunday night Summer Playhouse on TV One presented the New Zealand-made

film, Desperate Remedies, on 14 December 1997 beginning at 8.30 pm.

Mr McKay initially questioned whether the broadcaster gave a prior warning of the

content of the film before it was screened. He then claimed that the film was not only

bizarre but "pornography of the first order". He expressed his concern that many

children would have been exposed to the film, because it was shown at a time when

many children were on school holidays and the film was screened relatively early in the

evening.

TVNZ considered the complaint under standards G2 and G12 of the Television Code

of Broadcasting Practice. They require broadcasters:


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.

G12    To be mindful of the effect any programme may have on children

          during their normally accepted viewing times.


The broadcaster advised that, for screening on television, the film had been given an

AO certification, which meant – in the broadcaster's view – that the film was

unsuitable for viewers under 18 years of age. Further, TVNZ pointed out, Desperate

Remedies was preceded by a specific warning of its content and certification which

had been delivered both verbally and visually. The warning stated:

This programme is certified adults only. It contains nudity, sex scenes and

violence that may disturb. It is recommended for mature people only. Discretion

is advised.


Acknowledging that there would be children watching its programmes at any time, the

broadcaster emphasised its belief that adult caregivers had responsibilities too, and

that by advising them of the adult nature of the programme, it had given them the

opportunity to refuse their children access to it.

Denying that the programme was pornographic, the broadcaster stated that:

            To imply sexual activity is not to be pornographic. It is the way sex is

            sometimes depicted that makes it pornographic.

TVNZ disagreed that the film was bizarre and described it as unusual and surreal with

high colour and exaggerated sets and dramatic circumstances. It claimed that it was

novel and original in the New Zealand context.

Stating its belief that TVNZ in particular had a responsibility to reflect New Zealand

culture in its programmes, it contended that it was:

...important that there is screen space available for the innovative and

experimental and that the broadcast of such material is warranted for

cultural and artistic reasons as well as serving the need for entertainment.


Claiming that the Sunday night playhouse spot on TV One had become recognised as

the repository for serious drama as well as innovative material, TVNZ noted that

films such as Desperate Remedies indicated their style to their audience quickly. That

some of the audience were offended:

            ...should not mean that others with a serious interest in film making and our

            cultural evolution should be denied this material.


In conclusion, the broadcaster, while regretting that Mr McKay had found the film

offensive, refused to accept that the standards had been breached. TVNZ noted that

older secondary school students taking media courses might have taken an intellectual

interest in such local film making. It also noted that primary schools had not finished

for the year at the time the film was screened and so there was no reason to believe

that the film would have attracted young children as an audience.

When referring his complaint to the Authority, Mr McKay wrote:

I am horrified to think that if they do not consider the sexual acts portrayed in

Desperate Remedies to be explicitly pornographic as I do, what standard of

behaviour would?

Emphasising that, in his view and the view of others, the film was extremely

pornographic, Mr McKay questioned the broadcaster's statement that it was the way

sex was depicted that made it pornographic. He claimed that the way sexual behaviour

was acted out in the film was of an explicitly pornographic nature.

Taking issue with TVNZ that the film reflected New Zealand culture, the complainant

denied that the film had the "slightest resemblance" to New Zealand culture of the

past and nothing to do with the "cultural evolution" claimed by the broadcaster.

Expressing concern about the amount of violence and explicit sexual behaviour "shown

almost daily" on television, Mr McKay asserted that irresponsible television

programming had a major bearing on the growth of violence and sexual offending

occurring in the country at ever younger ages.

In determining the complaint, the Authority first turns to standard G2. As required

under that standard, the Authority considers the language and behaviour of the film in

its context. The film, which could be described as falling within arthouse parameters in

its style and content, contained fanciful images and scenes, with creatively heightened

use of colour. It presented sexual and other scenes of a controversial nature in a

decadent and somewhat unrealistic setting, and implied various sexual acts which the

Authority considers were somewhat provocative given that the film commenced right

on the edge of the watershed.

In determining whether the standard has been breached, the Authority considers the

expectations of mature television viewers at 8.30 pm on a Sunday night of material

with an AO classification. In examining this film against such expectations, the

Authority notes that some aspects of the film test accepted norms of decency and

taste. It does not believe that mature viewers would normally expect to be confronted

with some of the sexual scenes which were depicted in the film at a viewing time

which commenced shortly after 8.30 pm.

While acknowledging that the film was locally made and ambitious in its reach, and, as

noted, was of the arthouse genre, the Authority is of the opinion that its depictions

reached the threshold, across which a breach of the standard would be found, and thus

fell only marginally short of a breach. The film, the Authority feels, would have been

more suitably screened in a later evening slot. However, in all the circumstances and

taking into account its classification and warnings, referred to in the Authority's

consideration of standard G12, the Authority in this instance does not find a breach of

standard G2.

The Authority next considers the complaint in the context of standard G12. It notes

that Desperate Remedies was shown at 8.30 pm with an "Adults Only" classification.

The film was preceded by strong verbal and visual warnings. In those circumstances,

the Authority believes that responsible caregivers would heed the warnings, and in

view of the time of commencement of the programme, would exercise appropriate

control over any children viewing the film. Accordingly, it declines to uphold the

complaint under this standard.

 

For the reasons set forth above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

 

Sam Maling
Chairperson
26 March 1998

Appendix


Mr McKay's Complaint to Television New Zealand Limited – 15 December
1997


Gordon McKay of Howick complained about the film Desperate Remedies which was

screened on TV One on 14 December 1997, beginning at 8.30 pm. Initially he inquired

whether the film had carried a warning about its content. His complaint to the

broadcaster, Television New Zealand Limited, was that the film was bizarre,

pornographic and "a disgraceful exhibition of filth and degradation".

He also expressed his concern that the film was shown at a time when many school

children were on holiday. As, he wrote, the programme screened relatively early in the

evening, many innocent children would have been exposed to it.

The complainant questioned how the film reflected New Zealand culture and identity,

in accordance with the principles propounded in explanation of the collection of the

broadcasting fee.

TVNZ's Response to the Formal Complaint – 14 January 1998


TVNZ responded initially by noting that Desperate Remedies was directed by two of

New Zealand's most renowned film makers, featured a well-known theatre and screen

actress, was largely funded by the New Zealand Film Commission and was released

locally, and overseas, in 1993.

The broadcaster noted that the film was given an "AO" certification for screening on

television. That certification, TVNZ advised, indicated to viewers that the film was

unsuitable for viewers under the age of 18. It submitted that at any time:

...there will be children watching our programmes, but we believe adult

caregivers have responsibilities too and that by advising them of the adult nature

of the programme we are giving them the opportunity to refuse their children

access to it. Clearly it would be socially and intellectually undesirable if viewers

were subjected throughout the 24 hours to programmes which fill the needs only

of kindergarten age viewers.

Additionally, the broadcaster emphasised, the programme was preceded by a very

specific warning of its certification and content and a recommendation that it was for

mature people only. That warning, TVNZ wrote, was delivered both visually and

verbally.

Denying that the film was pornographic, the broadcaster stated that to imply sexual

activity was not pornographic. It was the way in which sex was sometimes depicted

that made it pornographic.

TVNZ disagreed with the complainant's description of the film as "bizarre", and

suggested that it was unusual and surreal because of its high colour and grossly

exaggerated sets and dramatic circumstances. It wrote:

            The film is certainly novel and original in the New Zealand context – a local

            avant garde production with a "camp" theme.


Noting that TVNZ in particular had a responsibility to reflect New Zealand culture in

its programmes, the broadcaster submitted that it was important that there was:

...screen space available for the innovative and experimental and that the

broadcast of such material is warranted for cultural and artistic reasons as well as

serving the need for entertainment.


TVNZ submitted that the Sunday night "playhouse spot" had become recognised as

the repository for more serious drama as well as innovative material such as the film in

question. Acknowledging that such films indicated their style to an audience which

responded by turning off or seeking other programmes, the broadcaster stated that

reaction:

...should not mean that others with a serious interest in film making and our

cultural evolution should be denied this material.


In the context of an "AO" film which had been preceded by a specific warning and

placed in a part of the schedule traditionally reserved for more mature entertainment,

this programme, TVNZ wrote, did not stray beyond currently accepted norms of

taste and decency to breach standard G2.

Emphasising the "AO" certification and the warning, the broadcaster suggested that it

was mindful of the effect of the programme on children and it denied that it had

breached standard G12. It noted that older secondary school students, taking "media"

courses, could have an intellectual interest in film-making of this sort. TVNZ observed

that primary schools had not finished for the year when the programme was

broadcast, and there was no reason to believe that there would have been more than

the usual number of primary school children viewing at the time.

Mr McKay's Referral to the Broadcasting Standards Authority – 16 January
1998


Dissatisfied with TVNZ's response, Mr McKay referred his complaint to the

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

In his referral, Mr McKay acknowledged that he had not seen the warning before the

film and confirmed that he had been "open to correction on this point".

The complainant rejected the broadcaster's statement that the film was not

pornographic, and questioned the standard of behaviour which would fit within the

broadcaster's description of pornography if the sexual acts portrayed in the film did

not. Commenting on TVNZ's statement that it was the way sex was depicted that

made it pornographic, he wrote:

...isn't the way sexual behaviour was acted out in Desperate Remedies of an

explicitly pornographic nature?


Mr McKay denied that the film reflected New Zealand culture and wrote:


...far from it in fact, it had not even the slightest resemblance to NZ culture of

the past and has nothing to do with so called "cultural evolution".

He expressed his concern at the amount of violence and explicit sexual behaviour

shown "almost daily" on television. In conclusion he stated that he was convinced

that:

...ratings driven, profit motivated, irresponsible, television programming has a

major bearing on the growth of violent and sexual offending in this country

which is occurring at ever younger ages.


TVNZ's Response to the Authority – 28 January 1998


TVNZ responded by noting its concern that the complainant had found its earlier

response sarcastic and patronising. It replied that it otherwise had nothing further to

add to its response to Mr McKay.

Mr McKay's Final Comment – 16 February 1998


The complainant criticised the broadcaster's view that Desperate Remedies was not

pornographic and was not an infringement of the Broadcasting Act 1989.


He wrote that, because TVNZ was profit-driven, it dispensed with the needs and

feelings of people, and good moral standards, in the interests of short term goals.