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Fabian and CanWest TVWorks Ltd - 2007-001

  • Joanne Morris (Chair)
  • Tapu Misa
  • Paul France
  • Diane Musgrave
  • P A Fabian
CanWest TVWorks Ltd
TV3 # 2

Complaint under section 8(1)(a) of the Broadcasting Act 1989
3 News Special – programme entitled “Let Us Spray” – discussed some of the issues surrounding the manufacture of chemicals at the Dow Chemical plant in Paritutu – showed images of babies born with various deformities – allegedly in breach of good taste and decency and children’s interests

Standard 1 (good taste and decency) – contextual factors – not upheld

Standard 9 (children’s interests) – subject matter easily recognisable as being appropriate for adults – clear and sufficient warnings immediately prior to images being shown – not upheld

This headnote does not form part of the decision.


[1]  A 3 News Special entitled “Let Us Spray” was broadcast at 7pm on 23 October 2006. The programme discussed some of the issues surrounding the manufacture of chemicals – particularly 2,4,5T – at the Dow Chemical plant in Paritutu. The following visual and verbal warning preceded the programme:

This programme contains scenes that some viewers may find disturbing.

[2]  At approximately 7.20pm, the following warning was displayed on the screen:


[3]  The presenter spoke about the high incidence of babies born with deformities in the New Plymouth area between 1965 and 1971, and said:

Again we warn you, the following pictures are extremely disturbing.

[4]  Several graphic images of babies born with various serious deformities were then shown.


[5]  Mr PA Fabian made a formal complaint about the programme to CanWest TVWorks Ltd, the broadcaster. He alleged that the pictures of infants with deformities breached standards of good taste and decency. Mr Fabian recognised that the programme as a whole was responsible and balanced, but he maintained that the “grisly, real-life reality” of the infants had overstepped the mark.

[6]  Had the material been broadcast after 8.30pm, the complainant wrote, an objection on good taste and decency grounds could have been defended if the programme was preceded by a proper warning for viewers. While he acknowledged that there was a warning before the programme and another one immediately before the pictures, Mr Fabian did not believe they were effective. He submitted that screening the material when a younger audience could be watching breached Standard 1 (good taste and decency).


[7]  CanWest assessed the complaint under Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice, which provides:

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, broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

Broadcaster's Response to the Complainant

[8]  The broadcaster stated that to constitute a breach of Standard 1 (good taste and decency), the broadcast material would have to be unacceptable to a significant number of viewers in the context in which it was shown. It also said that the Authority had accepted that news and current affairs programmes that were screened prior to 8.30pm were unlikely to be watched by unsupervised young children.

[9]  CanWest argued that the photos complained about were relevant to the focus of the story. The warnings, it said, made sure that viewers had adequate notice of the distressing nature of the images. It found that the requirements of Standard 1 were met.

[10]  The broadcaster considered whether the broadcast had breached Standard 9 (children’s interests) with reference to part of Appendix 1 of the Free-to-Air Television Code of Broadcasting Practice, which states:

News and Current Affairs programmes, which may be scheduled at any time and may, on occasion, pre-empt other scheduled broadcasts, are not, because of their distinct nature, subject to censorship or to the strictures of the classification system.

However, producers are required to be mindful that young people may be among viewers of news and current affairs programmes during morning, daytime and early evening hours and should give consideration to including warnings where appropriate.

[11]  CanWest maintained that it had been mindful of the interests of child viewers by including careful and explicit warnings at the beginning and during the programme.

Referral to the Authority

[12]  Dissatisfied with CanWest’s response, Mr Fabian referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He stated that a warning did not give approval, within the bounds of taste and decency, for the broadcast of such material during that timeslot. He added:

I would mention that not infrequently grim war casualty depictions are contained in news and current affairs broadcasts and are usually quite properly accompanied by warnings. Even so graphic close-ups are spared. But never have I seen anything to compare with the close-up mutilations of infants as in the programme in question.

[13]  Mr Fabian contended that both adult viewers and younger viewers would have been disturbed by the images shown in the item. He reiterated his view that, despite the warnings, the broadcast breached standards of good taste and decency.

Authority's Determination

[14]  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 1 (good taste and decency)

[15]  When the Authority determines a complaint alleging a breach of good taste and decency, it is required to take into account the context in which the programme was broadcast. On this occasion, relevant contextual factors include:

  • the pictures were broadcast at 7.20pm, during the PGR timeband
  • news and current affairs programmes are unclassified
  • a warning was broadcast before the programme, and two warnings were broadcast (one visual and one verbal) immediately prior to the images being shown.

[16]  The Authority acknowledges that the images of deformed infants were shocking and would have been distressing to some viewers. However, clear and sufficient warnings were given to signpost the fact that the images were challenging, and the presenter’s comments gave a clear indication of what was to follow. The Authority considers that viewers were able to make an informed choice about whether or not they wanted to see the material shown. Furthermore, the images were not gratuitous, but were germane to the subject matter under discussion.

[17]  Having taken into account the contextual factors above, the Authority concludes that no breach of Standard 1 occurred.

Standard 9 (children’s interests)

[18]  The Authority considers that the subject matter of this documentary was easily recognised as being more appropriate for adult viewers, and it observes that a 90 minute programme about the Dow Chemical plant in Paritutu was unlikely to be watched by children. It also reiterates its view that clear and sufficient warnings were given before the images were broadcast, which would have enabled parents to exercise discretion.

[19]  Furthermore, the infants’ deformities were caused by a natural phenomena; they were not a result of cruelty or violence which, in the Authority’s view, would have been more upsetting to younger viewers. It also notes that the most disturbing of the images was shown last.

[20]  Taking these factors into account, the Authority finds that CanWest adequately considered the interests of child viewers on this occasion. 


For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority


Joanne Morris
23 March 2007


The following correspondence was received and considered by the Authority when it determined this complaint:

1    P A Fabian’s formal complaint – 23 October 2006

2    CanWest’s decision on the formal complaint – 28 November 2006

3    Mr Fabian’s referral to the Authority – 20 December 2006

4    CanWest’s response to the Authority – 7 February 2007