Harrison and TV3 Network Services Ltd - 2003-138, 2003-139, 2003-140
- Joanne Morris (Chair)
- Tapu Misa
- R Bryant
- Diane Musgrave
- Etana Harrison
ProgrammeThe Strip promos
BroadcasterTV3 Network Services Ltd
Promos – The Strip – sexual material – allegedly offensive – promos for AO programme screened in G and PGR time-bands – inappropriate
Standard 1 – contextual factors – no uphold
Standard 5 – not relevant – no uphold
Standard 7 – majority – promos appropriately classified PGR – minority – inappropriate rating – classification code AO should have been used – two promos shown during 3 News – failed to comply with PGR time-band – uphold; majority – promo shown during 20/20 – complied with PGR time-band – no uphold – minority – inappropriate classification – breach
This headnote does not form part of the decision.
 Promos for The Strip were broadcast by TV3 at various times on 30 June, 1 and 6 July 2003.
 Etana Harrison complained to TV3 Network Services Ltd, the broadcaster, that the promos contained inappropriate sexual material which breached standards of good taste and decency. Ms Harrison contended that the content of the promos was unsuitable for broadcast at those times and that they were screened in breach of the classification codes.
 In response, TV3 said that the promos were appropriately rated PGR and in context did not breach the standards. The broadcaster declined to uphold the complaints.
 Dissatisfied with TV3’s decision Ms Harrison referred her complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority upholds aspects of two of the three complaints.
 The members of the Authority have viewed a video of the promos complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.
 Promos for the programme The Strip were broadcast on TV3 on 30 June and 1 July at 6.30pm during 3 News and on 6 July at 8.09pm during 20/20.
 Ms Harrison contended that the promos, which featured “near naked people in G strings, two men kissing a woman, talk of sex and many other associations to sex”, were offensive. She expressed her concern “about the state of broadcasting” in New Zealand, and considered that material of this nature was responsible for society’s social problems.
 The complainant argued that the adult content in the promos for The Strip, an AO programme, was unsuitable for broadcast prior to 8.30pm and breached the classification codes. Ms Harrison referred to the lack of “warning” for the promos. In her view as the promos were shown during news and current affairs programming and, at a time when children were likely to be watching television, the broadcaster should have warned viewers about the offensive material.
 TV3 assessed the complaints under the standards nominated by the complainant. The Standards (and relevant Guidelines) in the Free-to-Air Television Code of Broadcasting Practice provide:
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.
1b Broadcasters should consider – and if appropriate require – the use of on-air visual and verbal warnings when programmes contain violent material, material of a sexual nature, coarse language or other content likely to disturb children or offend a significant number of adult viewers. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
5b Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.
Standard 7 Programme Classification
Broadcasters are responsible for ensuring that programmes are appropriately classified and adequately display programme classification information, and that time-bands are adhered to.
7a Broadcasters should ensure that appropriate classification codes are established and observed (Appendix 1). Classification symbols should be displayed at the beginning of each programme and after each advertising break.
7c Broadcasters should consider the use of warnings where content is likely to offend or disturb a significant proportion of the audience.
The Broadcaster’s Response to the Complainant
 TV3 declined to uphold the complaints. It argued that the promos were all appropriately rated PGR. The broadcaster detailed the content of each of the three promos complained about and noted that “some of the footage was suggestive of sexual activity but no explicit material was shown.”
 TV3 considered the two promos shown during 3 News together and assessed the third promo broadcast during 20/20 separately. The broadcaster advised that it had assessed the promos under Standards 1 and 7 of the Television Code, but it considered that Standard 5 was not relevant as it applied to news, current affairs and other factual programmes.
Promos 1 & 2
 In relation to the promos shown during 3 News, TV3 noted that the relevant contextual factors were the time of broadcast (6.30pm), the type of programme (news bulletin), the PGR rating, and the adult target audience.
 TV3 submitted that the time of broadcast and the type of programme were “inextricably linked”. In its view the broadcast of the promos during a news bulletin was “highly relevant”. It noted that news bulletins were not classified, although they were broadcast during a G timeslot. TV3 maintained that a news programme “effectively suspends the underlying timeslot in which it is screened, rendering the time ‘unclassified’”.
 Consequently, TV3 submitted that the issue was “whether the promos were acceptable in the context of a news bulletin”. It argued that “PGR rated material is suitable for screening during news bulletins”, and that as the promos were rated PGR, there was no breach of Standard 1.
 In relation to Standard 7, TV3 submitted that the promos were “correctly rated PGR”, as there was “no nudity, no coarse language and no explicit sexual behaviour” which would have required an AO classification. TV3 maintained that in the context of a news programme, the promos “conformed in content” with the host programme, and did not require a warning. TV3 found no breach of Standard 7.
 As to the third promo which was screened during 20/20, TV3 submitted that the relevant contextual factors were the PGR classification, the type of programme (current affairs), and the likely adult target audience.
 In view of these contextual factors, TV3 found that Standard 1 was not breached, as the promo was rated PGR, and shown in a PGR timeslot. TV3 concluded that it was “unlikely that a majority of viewers of 20/20 would find the material in the promo unacceptable”.
 In reference to Standard 7, TV3 repeated its earlier submission that this promo was also appropriately classified PGR. As the timeslot was rated PGR, and the promo was appropriately rated PGR, TV3 concluded that Standard 7 had not been breached because the promo complied with the time band in which it was screened.
The Referral to the Broadcasting Standards Authority
 Ms Harrison reiterated the points made in her formal complaint. The complainant disagreed with TV3’s argument and maintained that the “sexual nature of the promo was explicit and contained AO material” in breach of the standards.
The Broadcaster’s Response to the Authority
 TV3 submitted that the three promos complained about were “appropriately rated PGR”, and did not contain any AO material. It maintained that the promos would not have “offended or disturbed” the majority of viewers, and that the content of the promos did not require a warning.
The Complainant’s Final Comment
 Ms Harrison maintained that the promos were offensive and that they should have been rated AO. The complainant disagreed with TV3’s assertion that the promos would need to offend a significant number, or the majority of viewers to breach the standards.
The Authority’s Determination
 The complainant considered that the promos were unsuitable for broadcast at the time they were shown in breach of the classification codes. Standard 7 raises two issues which are relevant to these complaints – the first is whether the promos were appropriately classified, and second whether the promos complied with the classification band in which they were broadcast.
Promos 1 & 2
 These two promos were shown during 3 News. Standard 7 allows for promos of AO programmes to be broadcast in an earlier time-band, provided the promo itself complies with the classification band in which it was broadcast. A majority of the Authority agrees with TV3 that the promos were appropriately classified PGR. The PGR definition provides:
Programmes containing material more suited for mature audiences but not necessarily unsuitable for child viewers when subject to the guidance of a parent or an adult.
PGR programmes may be screened between 9am and 4pm, and after 7pm until 6am
 The issue for the majority of the Authority is whether the promos, appropriately rated PGR, were screened in compliance with the defined time-bands for PGR programmes. The Authority’s majority opinion is that promos 1 and 2 were broadcast in contravention of the PGR time-band, because they were shown during 3 News at 6.30pm when they should have screened either before 4pm or after 7pm.
 A minority of the Authority (Ms Tapu Misa) considers that the promos were incorrectly assessed as PGR and should have carried an AO classification. In the minority’s view, the portrayal of adult themes and the inclusion of scenes described by TV3 as “suggestive of sexual activity”, including visuals of two men and one woman on a bed, apparently without clothing, justified an AO classification, which is defined in the Television Code as “programmes containing adult themes and directed primarily at mature audiences”. Accordingly, the minority concludes that the promos were inappropriately broadcast outside the AO time-band, breaching Standard 7.
 The Authority accepts that 3 News is not classified and yet it is broadcast during the G time-band. However, the Authority does not accept TV3’s argument that the G time-band was “suspended” by the news programme and, therefore, the promos were shown in an “unclassified” time-band. In the Authority’s view, news programmes because of their nature, constitute the sole exception to the time-bands. The PGR definition is clear that PGR programmes, including promos, may not be screened between 4pm and 7pm. They do not get a “reprieve” from the time-band rules merely because they are screened during the news. The Authority considers that this view has been implicit in its determinations over the years.
 The majority of the Authority considers that as 20/20 is rated PGR, the PGR promo shown during 20/20 was screened in the correct time-band, and therefore did not transgress Standard 7.
 A minority of the Authority (Ms Tapu Misa) again disagrees. In the minority’s opinion, the promo was inappropriately classified PGR and should have been classified AO. Accordingly, the minority finds that the broadcast of the promo breached Standard 7.
 Simply because a promo may breach Standard 7 of the Television Code it does not automatically follow that it will breach Standard 1. The time at which a promo is broadcast is only one among many contextual factors that the Authority is required to consider.
 Other relevant contextual factors on this occasion include the adult nature of the programme from which the extracts for the promos were taken. The Authority considers that, while the promos portrayed adult themes, they did not contain explicit material, nudity or offensive language. It notes the broadcaster’s view that “some of the footage was suggestive of sexual activity”. The Authority finds that the sequences shown were very brief and, despite the time of their screening, the footage was not inherently offensive.
 In the Authority’s view the content of the promos was not inappropriate given the theme of The Strip, and reflected the tone and content of the programme. Accordingly, the Authority concludes that on balance the promos did not breach the Standard 1 requirement for good taste and decency.
 In the Authority’s view this standard, which relates to news, current affairs and factual programmes, does not apply to the promos. Accordingly, the Authority declines to uphold this aspect of the complaint.
Bill of Rights
 The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by “such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society”. For the reasons given in Decision Nos. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society.
 The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion. For the reasons given in this decision, in particular the promos’ PGR rating and their broadcast in contravention of the PGR time-band, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act.
For the reasons above, the Authority upholds the complaints that the broadcast by TV3 Network Services Ltd of two promos for The Strip during 3 News on 30 June and 1 July 2003 breached Standard 7 of the Free-to-Air Television Code of Broadcasting Practice.
It declines to uphold all other aspects of the complaints.
 Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989. Having explicitly explained its position that broadcasting a promo rated PGR during the early evening news is in contravention of the PGR time-band and in breach of the Standards, the Authority does not consider an order is appropriate on this occasion.
Signed for and on behalf of the Authority
15 December 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Etana Harrison’s Complaint to TV3 Network Services Ltd – 22 July 2003
2. TV3’s Response to Ms Harrison – 20 August 2003
3. Ms Harrison’s Referral to the Broadcasting Standards Authority – 3 September 2003
4. TV3’s Response to the Authority – 23 September 2003
5. Ms Harrison’s Final Comment – 3 October 2003