BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Hessell and Television New Zealand Ltd - 2020-051 (21 December 2020)

Members
  • Judge Bill Hastings (Chair)
  • Leigh Pearson
  • Paula Rose QSO
  • Susie Staley MNZM
Dated
Complainant
  • Kim Hessell
Number
2020-051
Programme
20/20
Channel/Station
TV One

Summary

[This summary does not form part of the decision.]

The Authority has upheld a complaint that an episode of 20/20 aired on free-to-air television on a Sunday at 9am, detailing serial killer Ted Bundy’s crimes, motivations, and background, breached the children’s interests and programme information standards. The Authority noted that the broadcast presented in detail some potentially distressing and disturbing content, and themes including sexual violence and perversion, murder, and abduction, without any audience advisory or warning for this content. Additionally, the Authority considered the content and themes were suited for broadcast during the M timeband (suitable for a mature audience), rather than during PG time (which indicated the content was not necessarily unsuitable for child viewers under adult supervision). Viewers were not given sufficient information or signposting about the programme’s likely content to enable them to make informed choices about whether they, or children in their care, should view the broadcast. The Authority therefore found that the potential harm arising from the broadcast, particularly in relation to child viewers, outweighed the broadcaster’s right to freedom of expression on this occasion.

 

Upheld: Children’s Interests, Programme Information.

Orders: Section 16(4) – $750 costs to the Crown


The broadcast

[1]  An episode of 20/20, broadcast at 9am on Sunday 3 May 2020 on TVNZ 1, discussed the case of serial killer Ted Bundy and examined his crimes, motivations, and background, including his relationship with a single mother and her daughter, as told by them in an exclusive interview. This episode was a repeat screening, having previously aired at 9.25pm on 28 April 2020 and 11.15pm on 30 April 2020. The electronic programme guide information contained a generic synopsis of the programme: ‘Hosted by Carolyn Robinson, keep up to date with the best of international current affairs’. The programme was unclassified, on the basis it was categorised by the broadcaster as current affairs programming.1 The programme was not preceded by any audience advisory.

[2]  The programme was introduced with a voiceover from Mr Bundy’s former girlfriend: ‘I still have a sense of disbelief that this man, that I loved, could go out and do such horrific things’. Flashing images were shown of skulls and a motion picture of a silhouette wielding a weapon, as if in the process of striking someone. Another voiceover followed:

And the man she loved was none other than Ted Bundy, the notorious serial killer. And tonight we’re looking through the eyes of the women he loved, not just the women he killed.

[3]  After this introductory segment, the item was introduced by the presenter Ms Robinson, as follows:

Notorious serial killer Ted Bundy confessed to the murder of 30 women between 1974 and 1978, but it may have been many more. Elizabeth and Molly Kendall were the women that shared his life and lived to talk about it. Elizabeth loved Ted and thought he’d be the last person to be suspected of being a serial killer. However, her daughter Molly never told her about a disturbing incident she’d been witness to. Decades later, they open up about the man they now see as completely evil. This is their story.

[4]  Further narration of the item by Ms Robinson, before and after advertisement breaks, was included as follows:

  • ‘And when we come back we’ll find out how disturbing Ted Bundy’s behaviour starts to become. Stay with us.’
  • ‘Welcome back, you’re with 20/20 and tonight’s story on serial killer Ted Bundy. He escaped from jail but is safely back behind bars. Or is he? The story is about to take another sickening twist.’
  •  ‘The trial of Ted Bundy is underway, but will the evidence be compelling enough to convict him of murder? After the break, the prosecution piece together the chilling details.’

[5]  In considering this complaint, we have watched a recording of the broadcast and read the correspondence listed in the Appendix.

The complaint

[6]  Kim Hessell complained that the broadcast breached the children’s interests, programme information and violence standards of the Free-to-Air Television Code of Broadcasting Practice. Ms Hessell stated in her original complaint:

My young children got up on a Sunday morning to watch What Now. They accidentally ended up on TV1 and were watching 20/20, which was about serial killers, in particular Ted Bundy. This is highly inappropriate content to be played on a Sunday morning, when a lot of children are watching TV. TVNZ should be aware that 20/20 is not a suitable programme to play during daytime hours.

[7]  Ms Hessell referred her complaint to the Authority under the children’s interests and programme information standards. She also objected to TVNZ’s categorisation of the broadcast as ‘current affairs’, given that the content concerned murders that took place nearly 50 years ago.

The broadcaster’s response

[8]  TVNZ did not find any breach of the children’s interests or programme information standards, for the following reasons:

  • Guideline 2f to the programme information standard states that ‘News, current affairs, sports and live content is not, because of its distinct nature, subject to classification. However, broadcasters must be mindful of children’s interests and other broadcasting standards and include audience advisories where appropriate’.
  • 20/20 is a current affairs programme, not subject to classification, and the programme did not require a warning.
  • 20/20 targets adult viewers. Accordingly, the programme was unlikely to have held significant appeal for children, who were more likely to choose to view programming directed at them screening on other channels, such as What Now on TVNZ 2. The programme aired between Topp Country and Marae, which were also targeted at adults and unlikely to have held significant appeal for children.
  • News programmes, by their nature, often contain disturbing or confronting material. Therefore there is an expectation that parents will exercise discretion around viewing news and current affairs programmes with their children.
  • The programme aired during a ‘PG’ classification timeslot, defined as follows:

Parental Guidance: Parental Guidance recommended for younger viewers
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.
PG programmes may be screened at any time.

  • The introduction to the programme gave a clear description of the content of the upcoming programme so that viewers could make an informed decision about whether they wished to view such material.
  • Although the programme dealt with Ted Bundy’s crimes, it did not contain unduly graphic material or inappropriately detailed descriptions.

The relevant standards and guidelines

[9]  Under the programme information standard, broadcasters should ensure that programmes are correctly classified and screened in appropriate timebands, and where appropriate, issue an audience advisory where the content of a broadcast may not be suitable for likely viewers. Programmes broadcast during the ‘PG’ classification timeband (relevant in this case) may contain material more suited for mature audiences, but not necessarily unsuitable for child viewers when subject to the guidance of a parent or an adult.2

[10]  The children’s interests standard states broadcasters should ensure children can be protected from broadcasts which might adversely affect them. The purpose of the standard is to enable audiences to protect children from material that unduly disturbs them, is harmful or is likely to impair their development.3 Its focus is on harm that may be unique to children (as opposed to the audience generally, which is addressed under the good taste and decency standard).4

[11]  Material likely to be considered under this standard includes violent content or themes, offensive language, social or domestic friction and dangerous, antisocial or illegal behaviour where such material is outside audience expectations of the station or programme.5 In news, current affairs and factual programmes, disturbing or alarming material should be justifiable in terms of the public interest, if it is broadcast. Broadcasters must use judgement and discretion when deciding the degree of graphic material to be included in news programmes, and should broadcast an audience advisory when appropriate, particularly when children are likely to be viewing.6

Our analysis and the outcome

Freedom of expression

[12]  Our starting point is that we recognise the right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only intervene and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[13]  In reaching our decision on this complaint, we have given careful consideration to the potential harm arising from the broadcast, particularly to children. Overall, we found the broadcast contained potentially distressing and disturbing content and did not provide viewers with sufficient information to enable them to make informed viewing choices for themselves or for children in their care. We concluded that placing a reasonable limit on the broadcaster’s right to freedom of expression in this case is justified, with respect to the scheduling of this particular episode of 20/20. Our reasons in support of this view are outlined below.

Children’s Interests

[14]  The standard is generally concerned with material that is outside audience expectations.7 The context of the programme and of the wider broadcast, including the steps taken by the broadcaster to enable audiences to protect children from material that may unduly disturb them, is therefore crucial in determining whether the standard has been breached. The relevant contextual factors we have considered in this case include:8

  • The broadcast screened at 9am on a Sunday morning, during children’s viewing times.
  • The 20/20 episode was categorised by the broadcaster as current affairs programming, and therefore it did not carry a classification.
  • The programme was targeted at adults, and scheduled between Topp Country and Marae, which also have adult target audiences.
  • There is an audience expectation that 20/20 will cover stories of criminal activity that are particularly sensational or distressing.9
  • The programme was introduced as a presentation of the story of Ted Bundy through the eyes of the women he loved.
  • The content presented in the remainder of the episode was distressing in nature, and featured themes of violence, death and sexual perversion.
  • It contained both graphic descriptions of events and graphic images.
  • No audience advisory was broadcast either prior to the programme, or prior to the graphic and potentially disturbing content.
  • The programme dealt with historical events, rather than matters of topical public interest.

[15]  At different points throughout the broadcast, the following content was presented, which had the potential to adversely affect young viewers:

  • video clips of a silhouette carrying a studded club-like weapon, and breaking and entering, accompanied by dramatic music
  • close-ups of a man wearing a pantyhose-mask, accompanied by dramatic music
  • flashing and zooming images of sheets and mattresses stained with blood
  • images of an array of crime-related evidence, including a balaclava, pantyhose mask, gloves, handcuffs, crowbar, ice pick and rope
  • black and white image of a female victim’s body on a bed surrounded by blood, accompanied by a voiceover explaining that the victim had been strangled and beaten about the head
  • details of how a 12-year-old female victim disappeared from junior high school during the middle of the day, accompanied by images of the victim, footage of a junior high school, and dramatic music
  • details of Mr Bundy having sex with his female victims while unconscious and after they had died, and severing the heads of some of his victims.

[16]  In particular, we found the detailed account of a case involving a 12-year-old female victim, illustrating a daytime abduction from school and reporting the child’s subsequent murder and mutilation (coupled with reference to the killer’s apparent ‘enjoyment’ of his actions), could have had a significant and harmful impact on young viewers of a similar age and circumstance.

[17]  Therefore the next question is whether the broadcaster took adequate steps to enable child viewers to be protected from such content. The level of choice and control that viewers have over the content to which they expose themselves and children in their care, and the ability to prevent children from viewing inappropriate material, are important factors in this respect.10 When audiences are adequately informed of the nature of a programme, it follows that they are less likely to be surprised or offended by its content and more able to manage viewing by children, and the broadcast is less likely to breach the standard.

[18]  Having regard to the contextual factors listed above, we do not think there was adequate signposting of the programme’s content. While the opening segments contained some images that might have alluded to the content and themes of the broadcast, the programme itself was introduced as a presentation of the story of Ted Bundy through the eyes of the women he loved. This did not clearly set expectations in terms of the potentially disturbing level of detail that would be presented, verbally and visually, about the crimes committed by Mr Bundy.

[19]  Additionally, and importantly, no audience advisories or warnings were given either prior to the broadcast, or by the presenter at any stage during the broadcast to signal upcoming segments that presented potentially distressing or disturbing content or details of the crimes. Ms Robinson’s references to ‘disturbing behaviour’, ‘a sickening twist’, and ‘chilling details’ in the course of her narration were not sufficiently specific or direct to warn viewers of the details to come, nor to provide parents or caregivers with an opportunity to exercise discretion. This case is distinguishable from our earlier decision on another episode of 20/20, where explicit warnings were given before each segment containing potentially distressing details.11 Finally, while we acknowledge there is an established audience expectation that 20/20 will sometimes cover sensational or disturbing crimes, we consider the level of graphic detail in this episode went beyond audience expectations given the time of broadcast at 9am on a Sunday morning (and also beyond the level of content in the broadcast considered in our previous decision). Consequently, the episode required a warning, as discussed further below in relation to the programme information standard.12

[20]  In these circumstances, we uphold the complaint under the children’s interests standard.

Programme Information

[21]  For the reasons discussed under the children’s interests standard, we find that the programme contained material unsuitable for child viewers, even if subject to the guidance of a parent or adult, and therefore it was not appropriate for broadcast during the PG timeband. We have had particular regard to guideline 2d to Standard 2, which states:

Broadcasters will schedule programmes responsibly. Broadcasters should exercise discernment when scheduling PG, M, 16 and 18 classified content... Programmes must be correctly classified and screened during appropriate timebands and full advisories must be used where appropriate. Careful consideration must be given to the likely and target audience, and all standards, including in particular children’s interests (Standard 3) when scheduling programmes.

[22]  In our view, the content and themes of this episode of 20/20 were clearly more suited to the M classification timeband, defined in the newly revised Codebook13 as:14

M – Mature Audiences: Suitable for mature audiences 16 years and over

The M classification means the programme might contain violence, sexual material, offensive language, adult themes, nudity, or other content that some children and parents find challenging. The programme may contain content with a moderate impact and themes that require a mature outlook.

M programmes may be screened between 9am and 3pm on weekdays (except during school and public holidays, as designated by the Ministry of Education) and after 7.30pm until 5am.

[23]  Additionally, as we have said in relation to children’s interests, the nature and level of the content within the episode in our view necessitated an audience advisory. With respect to the type of advisory required, we note the following guidance in the newly revised Codebook:

  • News, current affairs, sports and live content is not, because of its distinct nature, subject to classification. However, broadcasters must be mindful of children’s interests and other broadcasting standards and include audience advisories where appropriate.15
  • Audience advisory symbols should be broadcast prior to content which is likely to disturb, distress or offend a significant number of viewers. Audience advisory symbols include: C (content may offend) and V (contains violence).16
  • If a programme is likely to disturb or offend a significant number of viewers, or programme content is likely to be outside audience expectations, an appropriate written, or written and verbal, on-screen audience advisory (warning) should also be broadcast.17

[24]  Applying these guidelines, at the least the episode should have displayed ‘C’ and ‘V’ audience advisory symbols prior to broadcast and prior to the potentially disturbing content. Additionally, and consistent with our findings in the earlier Gibb case, it would have assisted the audience greatly if the programme presenter had also verbalised clear warnings at relevant points, before potentially disturbing graphic descriptions.

[25]  In these circumstances, we find the potential harm to the audience arising from the inappropriate scheduling of the episode, as well as the absence of any audience advisory, justifies placing a reasonable limit on the broadcaster’s right to freedom of expression in this case. We therefore uphold the complaint under the programme information standard. We are not saying that this episode of 20/20 ought not to have been broadcast at all. Rather, this case highlights the importance of the need for caution and care to be taken when scheduling this programme (that was originally broadcast late at night) for repeat broadcasts, to ensure the content is appropriate for the new timeslot and adequately signposted for the audience.

[26]  We have considered the complainant’s objection to the categorisation of this episode of 20/20 as a current affairs programme because it concerned crimes committed 50 years ago that could not be considered current. We do not need to consider this issue because regardless of whether or not the programme is properly considered a current affairs programme, under guideline 2f of the programme information standard, broadcasters must be mindful of children’s interests and other broadcasting standards and include audience advisories where appropriate. We have found the broadcaster did not meet those obligations in this case.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of 20/20 on 3 May 2020 on TVNZ 1 breached Standard 3 (Children’s Interests) and Standard 2 (Programme Information) of the Free-to-Air Television Code of Broadcasting Practice.
[27]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions from the complainant and the broadcaster on our provisional findings and appropriate orders.

The broadcaster’s submissions

[28]  TVNZ accepted the decision and advised it had discussed it with the producer of 20/20 and communicated it to the wider 20/20 team. Regarding orders, however, it submitted:

  • The broadcast had a very small child audience, with only 0.3% of the audience in the 5-14 age range, as demonstrated by TVNZ’s Program Profile ratings data. The average audience was 66,900 people (0.3% of which is 200 viewers) and the total programme reach was 181,800.
  • The broadcast aired between Topp Country and Marae which also both target adult viewers.
  • Therefore, it was unlikely the programme caused harm to a significant number of children.
  • For these reasons, publication of the decision, and communication to the relevant staff members, is a proportionate response to the breach, which was at the lower end of the scale.

The complainant’s submissions

[29]  Ms Hessell submitted:

  • By TVNZ’s own estimate, 200 children (5-14 years old) may have watched the broadcast. This is a large number of children to have been exposed to highly inappropriate content, which will have had an unknown impact on them.
  • The issue is broader than this one episode, as 20/20 is being played every Sunday morning and is almost always portraying subjects inappropriate for children. Therefore, the lack of care being taken by TVNZ is ongoing and the number of children affected far greater.
  • New Zealand is a country concerned about children’s mental health, and with a robust classification system. Broadcasters should use the classification system to protect children from harmful content.
  • Orders should be made to prevent 20/20 from screening during daytime hours, and prevent TVNZ from screening AO programmes during daytime hours.

Our decision on orders

[30]  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:18

  • 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.

[31]  Applying these factors in this case, we noted:

  • The breach was moderate on the spectrum of seriousness. The potential for harm to audiences generally, but children in particular, was also moderate.
  • It is important parents and caregivers are given sufficient information to protect child viewers from unsuitable content, which did not happen in this case. In addition, although this programme was not targeted at them, TVNZ’s ratings data suggests 200 children may have been exposed to the disturbing material in this 20/20 episode.
  • The broadcast contained potentially distressing and disturbing content and themes including sexual violence and perversion, murder, and abduction.
  • Two standards were breached (programme information and children’s interests).
  • The broadcaster did not initially uphold the complaint but has now accepted our decision, discussed it with the producer of 20/20 and communicated it to the wider 20/20 team.

[32]  In these circumstances, we consider an order is warranted in recognition of the potential harm to child viewers. The most appropriate order in our view is costs to the Crown, to mark the departure from the standards and send a signal to TVNZ and other broadcasters about the importance of ensuring children can be protected from content that may adversely affect them, especially during children’s typical viewing times.

[33]  Under section 16(4) of the Act, the maximum amount of costs to the Crown we are able to award is $5,000. Having regard to the factors outlined above as well as previous Authority decisions,19 we consider an order of costs in the amount of $750 is appropriate.

[34]  We do not otherwise have the power to make the orders sought by the complainant (ordering 20/20 and adult programmes not to be broadcast during the day). The Authority’s jurisdiction is triggered by a formal complaint made about a specific broadcast, so our decision in this matter relates only to the episode of 20/20 broadcast on 3 May 2020. However, TVNZ and all broadcasters must comply with the programme information and children’s interests standards when scheduling any programme for broadcast, even if a programme is news or current affairs and not required to carry a rating. Our decision gives guidance in this respect about the need to take care especially during children’s viewing times, and the need to provide sufficient information, including appropriate warnings, for potentially distressing content.

Order

Under section 16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $750 within one month of the date of this decision.

The order for costs is enforceable in the District Court.

 

Signed for and on behalf of the Authority

 

Judge Bill Hastings

Chair

21 December 2020


 

Appendix

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

1  Kim Hessell’s formal complaint – 4 May 2020

2  TVNZ’s decision on the complaint – 28 May 2020

3  Ms Hessell’s referral to the Authority – 9 June 2020

4  TVNZ’s response to the referral – 25 June 2020

5  TVNZ’s submissions on the Provisional Decision and orders – 30 October 2020

6  Ms Hessell’s submissions on the Provisional Decision and orders – 6 November 2020


1 See guideline 2f to standard 2 – Programme Information
2 Guideline 2a
3 Commentary: Children’s Interests, Broadcasting Standards in New Zealand Codebook, page 13
4 As above, page 14
5 Guideline 3a
6 Guideline 3d
7 Guideline 3b
8 Guideline 3c
9 See also Gibb and Television New Zealand Ltd, Decision No. 2019-089
10 Choice and Control, Broadcasting Standards in New Zealand Codebook, page 7
11 Gibb and Television New Zealand Ltd, Decision No. 2019-089 from paragraph [13]
12 Guideline 3d
13 The Broadcasting Standards in New Zealand Codebook, including changes to timebands and classifications on free-to-air television, was revised with effect from May 2020.
14 Guideline 2a
15 Guideline 2f
16 Guideline 2g
17 Guideline 2h
18 Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 60
19 For example, see Evans and MediaWorks TV Ltd, Decision No. 2018-092