Evans and MediaWorks TV Ltd - 2018-092 (24 April 2019)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Wendy Palmer
- Susie Staley MNZM
- Fiona Evans
ProgrammeThe DailyMail TV
BroadcasterMediaWorks TV Ltd
[This summary does not form part of the decision.]
The Authority has upheld a complaint about a broadcast of The DailyMail TV, finding that footage broadcast during the programme was inappropriate for the PGR classification and time of broadcast, and required an audience advisory for disturbing content. The programme was broadcast at 3.30pm on a weekday, and featured partially censored footage of an American stabbing victim in the moments before she died. While the woman’s injuries were blurred, her distressed facial expression and blood splatters on the floor were visible. A second story featured censored footage of two 19-year-old women who claimed they had been drugged, filmed inside a bar naked and allegedly performing sex acts. The Authority found that this content went beyond what could be expected from a PGR-classified programme broadcast during children’s normally accepted viewing times and that the programme should have been classified AO – Adults Only. Further, the sexual material and disturbing nature of these stories required an audience advisory.
Upheld: Good Taste and Decency, Children’s Interests
Order: Section 16(4) – $1,000 costs to the Crown
 The DailyMail TV is an entertainment programme featuring stories from the website of tabloid newspaper, The Daily Mail. This particular episode was broadcast at 3.30pm on 21 September 2018 on Three and was classified PGR (though we note that, at times throughout the programme, an AO classification was displayed on screen).
 PGR programmes may be screened between 9am and 4pm and after 7pm until 6am. The PGR classification applies to:1
Programmes containing material more suited for mature audiences but not necessarily unsuitable for child viewers when subject to the guidance of a parent or adult.
 AO programmes may be screened between midday and 3pm on weekdays (except during school holidays and public holidays) and after 8.30pm until 5am.
 One segment during the programme reported on the murder of an American woman, who had been stabbed while out jogging. The segment featured partially censored CCTV footage of the woman stumbling into a nearby restaurant before she died. Teasers for the segment had the woman fully blurred, but later only the woman’s injuries were blurred, with her face and blood splatters on the floor of the restaurant visible.
 During the introduction to the segment, the presenter said:
The woman is seen here running into a restaurant, pleading for help, just moments before she died.
 As the CCTV footage was shown and repeated, the presenter said in voiceover:
It’s a terrifying sight. A woman staggers into a Chinese takeout restaurant and customers scatter – they can’t believe their eyes. The woman has blood gushing from her neck. Her wounds are so horrifying we had to blur the video. She begs for help, then collapses.
 A second story, titled ‘Girls Gone Wild’, featured censored footage of two 19-year-old women who claimed they had been drugged, filmed inside a bar naked and allegedly performing sex acts. Nudity in the footage was blurred.
 The women explained that they were served drinks by staff and events after this became ‘foggy’. They were certain that they had been drugged, as their behaviour was ‘completely out of character’. They made the following comments:
- ‘Every time we would try to get out of the ring they would push us back in.’
- ‘I didn’t take my clothes off. Somebody actually took my pants off.’
- ‘We have a picture from the morning after and it almost looks like we were beaten… there were handprint bruises on our backs, arms.’
 The presenter said that the women claimed bar staff encouraged the behaviour and later posted the video to the bar’s website. The women said that they were suing the bar.
 Fiona Evans complained that this broadcast breached the good taste and decency and children’s interests standards of the Free-to-Air Television Code of Broadcasting Practice, for the following reasons:
- The programme was broadcast in the afternoon, with no viewer discretion warnings.
- The CCTV footage, which was repeated throughout the programme, was shocking and served no public interest. While the woman’s injuries were censored, her face was visible and blood could be seen on the floor of the restaurant. The ‘Girls Gone Wild’ story was also graphic and inappropriate for a young audience.
- Insufficient care was taken to protect young viewers. The PGR classification was inadequate and the programme was inappropriately scheduled at 3.30pm after school, when children might have been watching.
- Classifications and warnings provide little protection to channel-surfing viewers. This programme played alongside children’s programming on other channels, increasing the likelihood that children could have flicked over to the programme.
- The format and sensationalism of the programme would have been attractive to older children.
The broadcaster’s response
 The broadcaster, MediaWorks, responded:
- While it apologised for the offence the broadcast caused and agreed that the content of both stories pushed the limit of the PGR classification, it considered the programme was unlikely to have caused widespread offence, for the following reasons:
- The broadcast was appropriately classified PGR and broadcast during the PGR timeband.
- The DailyMail TV is targeted at adult viewers and aired between programmes that also target adult viewers.2 Both stories were within audience expectations for the programme, which has aired 65 times without complaint.
- These stories would hold little appeal to children.
- The introduction to the programme included a tease of the stabbing story, giving viewers the opportunity to make an alternative viewing choice.
- The footage was censored, although the broadcaster acknowledged that the censorship was less comprehensive than what was applied to the same story on The DailyMail website.
- Audiences therefore had sufficient information available to them to make informed viewing decisions for themselves and any children in their care.
- Channel-surfing is viewer behaviour over which the broadcaster has no control. Viewers have a responsibility to inform themselves about the nature of the programmes they choose to view and which they allow their children to view.
- Ratings data indicated the programme was unlikely to have appealed to children,3 but if children were drawn to the programme, the classification was sufficient to inform viewers that the programme was unsuitable for unsupervised children.
 The purpose of the good taste and decency standard (Standard 1) is to protect audience members from viewing broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards. Broadcasters should take effective steps to inform audiences of the nature of the programme, enabling viewers to regulate their own and children’s viewing behaviour.4
 If content is likely to offend or disturb a significant section of the audience, an appropriate audience advisory should be broadcast prior to the content.5
 The children’s interests standard (Standard 3) states that broadcasters should ensure children can be protected from broadcasts which might adversely affect them.
 Material likely to be considered under this standard includes, for example:6
- Sexual material or themes
- Violent content or themes
- Graphic descriptions of people in extreme pain or distress.
 When programmes broadcast during children’s normally accepted viewing times contain material which is outside audience expectations and likely to disturb children, an audience advisory should be broadcast.7 On free-to-air television, children’s normally accepted viewing times are usually up until 8.30pm, or during G and PGR programming.8
Freedom of expression
 When we determine a complaint alleging a breach of broadcasting standards, we first give consideration to the right to freedom of expression. We weigh the value of the item against the level of actual or potential harm that might be caused by the broadcast.
 In this case, Ms Evans has alleged that the broadcast had low value in terms of public interest, while also having the potential to cause significant harm to viewers, including child viewers.
 We all agreed that the content broadcast during this episode of The DailyMail TV went beyond what could be expected from a PGR-classified programme, broadcast during children’s normally accepted viewing times. We also agreed that the disturbing and graphic nature of the programme required an audience advisory. In our view the programme contained adult themes of violence and sexual material, and distressing content. As the broadcaster accepts, the programme is clearly targeted at adult viewers. We consider that this episode should have been classified AO and should not have been aired during the PGR timeslot and children’s normally accepted viewing times.
 We are satisfied that upholding this complaint does not represent an unreasonable or unjustified limit on the broadcaster’s right to freedom of expression. While we agreed that this programme had relatively low value in terms of the right to freedom of expression, we are not saying it should not have been broadcast at all. Rather, the disturbing nature of the content in this particular episode required further steps to be taken by the broadcaster, to ensure audiences were provided with sufficient information about the likely upcoming content. This would have enabled audiences to make an informed decision about whether the episode was suitable for them, or children in their care, to watch.
 We expand on our reasons for this finding below.
Good Taste and Decency
 We recognise that attitudes towards good taste and decency differ widely. Audiences should have the freedom and capacity to make viewing choices, and in our diverse society, we must be cautious when considering matters of taste.9
 However, there are limits. As we have said above, sufficient information should be provided to audiences to enable them to make informed viewing choices. The context of the programme and the wider broadcast, including the steps taken by the broadcaster to inform audiences about their programmes, is therefore crucial in determining whether current norms of good taste and decency have been maintained. The relevant contextual factors we have considered in this case include:
- the nature of The DailyMail TV, a tabloid entertainment programme that may feature third party or viral footage, often presented in a sensationalised manner
- the graphic and disturbing nature of the stories presented, which featured violent and distressing themes and sexual material
- use of some masking tools such as pixelation and blurring
- the presenter’s voiceover, which despite blurring of images, provided a detailed narrative of the distressing scenes
- the time of broadcast at 3.30pm, during children’s normally accepted viewing times (after school)
- the absence of an explicit audience advisory for the content
- the signposting by the presenter and teasers shown at the outset of the item, which were also disturbing in nature
- the programme is classified PGR and is targeted at, and likely to be viewed by, an adult audience
- audience expectations of The DailyMail TV, which the broadcaster submitted has been broadcast 65 times without complaint
- the relatively low public interest in the footage shown during the programme.
 The CCTV footage of the stabbing victim, although censored, was disturbing and was repeated numerous times throughout the segment. As we have said above, the woman’s face was uncensored and she was clearly extremely distressed. Blood splatters on the floor were also visible. We consider this footage was particularly confronting as viewers were made aware through the accompanying voiceover that these were the final moments of the woman’s life.
 The voiceover also emphasised the disturbing nature of the footage. While they could not be seen explicitly, the presenter invited audiences to picture the woman’s ‘horrifying’ wounds and ‘blood gushing from her neck’. The presenter’s descriptions were graphic and, in combination with the repeated footage, blood splatters and emphasis on the woman’s death ‘moments later’, could have been distressing for viewers.
 The second story was also graphic in nature and contained sexual content, which was inappropriate for child viewers. We found the women’s descriptions of their experience and treatment by bar staff and other patrons unsettling.
We also recognise, however, that the blurring applied to the footage meant that any explicit content was relatively well censored.
 We nevertheless agreed that, for the reasons outlined above, the content in this episode of The DailyMail TV went beyond the programme’s PGR classification and should have been classified AO – Adults Only. The PGR classification is clear that programmes may contain material not necessarily unsuitable for child viewers, but only if they are supervised by a parent or adult. In our view, however, the content in this episode of The DailyMail TV was wholly unsuitable for child viewers, even with the guidance of a parent or adult. If the programme had been classified AO, then those viewers who use parental locks on their Freeview or SKY set-top boxes to block AO content would have been able to restrict viewing of this content by children in their care.
 We also found that this content was likely to offend or disturb a significant section of the audience, and an audience advisory for sexual material and disturbing content should have been broadcast.10 While the presenter’s comments, teasers and introductory clips of the CCTV footage signposted the upcoming content, there were no explicit warnings contained within the programme and the teasers shown were also graphic, requiring a warning.
 We therefore consider that audiences were not provided with sufficient information to make an informed viewing choice about this episode of The DailyMail TV, which in our view should have been classified AO and contained an audience advisory for disturbing content.
 Accordingly, we uphold this aspect of the complaint.
 As we have said above, this programme contained sexual material, violent content and graphic descriptions of people in extreme pain or distress, which we have found were outside the expectations of the programme’s PGR classification and should have been classified AO. The episode should not have been broadcast at 3.30pm, directly after school when children were likely to be watching television.
 There were no factors here that might have mitigated the likely harm to children (such as humour or educational benefit), and while the programme may not have appealed to children, its sensational style and time of broadcast after school and during children’s normally accepted viewing times meant that there was a high risk that children could be watching.
 We agree that viewers have a responsibility to ensure that children in their care are adequately supervised, however, we do not consider sufficient information about this programme was provided.
 For example, teasers for the ‘Girls Gone Wild’ clip were shown following the PGR classification, but the actual segment was shown with an AO classification displayed on screen. This suggests that a lack of care was taken by the broadcaster in the display of the correct classification. While broadcasters are unable to protect against some viewer behaviour, such as channel-surfing, they have a duty to accurately alert viewers to potential harmful content.
 In 2015, we undertook research into Children’s Media Use, seeking to understand how children engaged with media. That study found that on screen classifications and warnings were used most often by children to understand when a television programme was not for them.11 31% of children aged 6-14 used a ‘warning’ or ‘message on TV’ to decide whether a programme was suitable for them.12
 Further research undertaken in 2017 highlighted the high use and awareness of warnings and classifications in our communities. Our Understanding Timebands in Vulnerable Communities study showed that respondents felt cautionary warnings provided them with a final reminder to ensure content is appropriate for children in their care.13 Our Parental Guidance Survey found that cautionary warnings and programme classifications were the most well-known and widely used methods for selecting appropriate content.14
 Similarly, research undertaken by the Office of Film and Literature Classification in 2017 found that a programme’s rating and classification was the most common way for respondents to monitor or supervise media viewed by children (41%).15Respondents were most concerned about children’s or teens’ exposure to violence and sexual content.16
 This research highlights that broadcasters must take care, and have regard to children’s usual viewing times, when assessing and scheduling content, including ensuring that the classification is appropriate for the content shown (so that any parental locks that may be used are effective). They must also consider whether a warning is required and ensure that the warning is sufficiently descriptive of the nature of the sensitive content. The broadcaster has a responsibility to ensure that viewers, including children and caregivers, are adequately informed about the nature of the programme and likely upcoming content. We were not satisfied that this occurred on this occasion.
 We therefore uphold this aspect of the complaint.
For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks TV Ltd of The DailyMail TV on 21 September 2018 breached Standards 1 and 3 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld this complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.
The complainant’s submissions
 Ms Evans submitted:
- Given the Authority found two standards were breached by this broadcast, it was appropriate that orders were made against MediaWorks.
- The broadcaster did not uphold the complaint or take any mitigating steps. Further, in its response to the complaint, the broadcaster did not address one aspect of the complainant’s concerns, responding only to the use of CCTV footage, and not to the ‘Girls Gone Wild’ story.
- The broadcaster seemed incapable or unwilling to make appropriate judgements about the content of their programming.
- For these reasons, a broadcast statement and costs to the Crown should be considered.
The broadcaster’s submissions
 MediaWorks submitted:
- Following the Authority’s decision on this complaint, MediaWorks advised its programme appraisal staff to apply stricter content guidelines when assessing episodes of The DailyMail TV, to ensure all episodes comply with the PGR classification.
- MediaWorks had received no other complaints about this programme, implying that content on The DailyMail TV was within audience expectations.
- Given MediaWorks had taken steps to ensure future episodes complied with the Authority’s expectations, no further orders were warranted.
Our decision on orders
 When the Authority upholds a complaint, we may make orders, including directing the broadcaster to pay costs to the Crown and/or broadcast a statement. In determining whether orders are warranted, the factors we take into consideration are:17
- the seriousness of the breach, and the number of upheld aspects of the complaint
- the degree of harm caused to any individual, or to the audience generally
- the objectives of the upheld standard(s)
- the attitude and actions of the broadcaster in relation to the complaint (eg, whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated any harm caused)
- whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
- past decisions and/or orders in similar cases.
 Applying some of these factors in this case, we considered this breach to be at the medium end of the spectrum. This episode of The DailyMail TV contained sexual material and violence, which was disturbing in nature. As such, we unanimously found that the programme was incorrectly classified and required a warning, resulting in a breach of two standards (good taste and decency and children’s interests).
 The potential for harm to audiences generally, but particularly to children, was also at the medium end of the spectrum, given the disturbing nature of the content and the lack of information available to audiences about the nature of the programme. However, we acknowledge that explicit content was censored and some level of sophistication may have been required for young children to fully comprehend what was being shown.
 The broadcaster did not uphold the complaint or accept that the programme was incorrectly classified or scheduled. However, in its response to the complaint, it accepted that the content pushed the boundary of the PGR classification and apologised for the offence caused. In response to the Authority’s provisional decision, programme appraisal staff have been instructed to apply stricter content guidelines to ensure episodes of The DailyMail TV comply with the PGR classification in future.
Costs to the Crown
 The Authority may make an award of costs to the Crown, having regard to various factors including the conduct of the broadcaster, the seriousness of the breach of standards and previous decisions. Under section 16(4) of the Act, the maximum amount of costs to the Crown we are able to award is $5,000.
 In determining whether an order of costs to the Crown is warranted, we have considered the following aggravating factors:
- As we have said above, the breach of standards was at the medium end of the spectrum, with two standards breached.
- The broadcaster demonstrated a lack of care in failing to correctly classify and schedule this programme, or to provide sufficient information to viewers about the programme.
- When a complaint was made, the broadcaster did not acknowledge the issues or uphold the complaint in the first instance. We also note that, since 2014, the Authority has upheld six complaints against MediaWorks raising issues of warnings and/or classifications in television programmes.18
 We have balanced the above factors with the following mitigating factors:
- While it did not uphold the initial complaint, MediaWorks apologised for the offence caused and has now taken steps to ensure the correct classification is applied to the programme in future.
- Some level of censorship was applied to the programme, which had been classified PGR for some time and received no complaints.
 In these circumstances, and having regard to previous costs decisions, we consider an order of $1,000 in costs to the Crown is appropriate. This order sanctions the broadcaster’s conduct, which we have assessed as moderately serious in the circumstances.
 We also carefully considered whether a broadcast statement is appropriate in this case. In this case we do not consider that a broadcast statement is required to remedy the actual or potential harm caused.
 We have concluded that publication of this decision will highlight for all broadcasters the importance of accurate classification, particularly during children’s usual viewing times. Our decision will publicly acknowledge the breach of standards, censure the broadcaster and confirm our expectations when it comes to the classification and scheduling of content which may be harmful for audiences.
 We therefore consider that the appropriate response in this case is an order of costs to the Crown, and we make no further order.
1. Under section 16(4) of the Act, the Authority orders MediaWorks TV Ltd to pay to the Crown costs in the amount of $1,000 within one month of the date of this decision.
The order for costs is enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
Judge Bill Hastings
24 April 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Fiona Evans’ formal complaint – 21 September 2018
2 MediaWorks’ response to the complaint – 19 October 2018
3 Ms Evans’ referral to the Authority – 27 October 2018
4 MediaWorks’ further comments – 12 November 2018
5 Ms Evans’ confirmation of no further comment – 12 December 2018
6 MediaWorks’ submissions on orders – 7 March 2019
7 Ms Evans’ submissions on orders – 13 March 2019
1Definitions, Broadcasting Standards in New Zealand Codebook, page 9
2Celebrity Name Game and Newshub Live at 4pm
3Ratings data showed the episode achieved a rating of 0.0 and a channel share of 0.0% in the 5-14 demographic
8Definitions, Broadcasting Standards in New Zealand Codebook, page 9
9Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
11Children’s Media Use Study (Broadcasting Standards Authority, March 2015) at page 85
12Above, at page 86
13Understanding Timebands Within Vulnerable Communities (Broadcasting Standards Authority, December 2017) at page 31
14Parental Guidance Survey (Television New Zealand and Broadcasting Standards Authority, September 2017) at page 3
15Children and teen exposure to media content (Office of Film and Literature Classification, February 2017) at page 14
16Above, at page 6
17Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58
18See: Lewis and MediaWorks TV Ltd, Decision No. 2017-069; McKenzie and MediaWorks TV Ltd, Decision No. 2015-055; Cochran and MediaWorks TV Ltd, Decision No. 2015-054; Cripps and MediaWorks TV Ltd, Decision No. 2015-043; Black and MediaWorks TV Ltd, Decision No. 2015-037; Henderson and MediaWorks TV Ltd, Decision No. 2014-156