Milich and Television New Zealand Ltd - 2011-053
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Leigh Pearson
- P Milich
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Criminal Minds – storyline involved a man with extensive burn injuries seeking revenge on his victims by burning them alive – showed victims being covered in petrol and set on fire – allegedly in breach of standards relating to good taste and decency, responsible programming and violence
Standard 8 (responsible programming) – high degree of explicit violence and disturbing themes constituted strong adult material that warranted an AO 9.30pm classification and later time of broadcast – programme incorrectly classified – upheld
Standard 10 (violence) – episode contained explicit violence – broadcaster did not exercise adequate care and discretion – upheld
Standard 1 (good taste and decency) – level of violence in 8.30pm broadcast was unacceptable in context, despite AO classification – upheld
This headnote does not form part of the decision.
 An episode of Criminal Minds, a fictional drama series about the FBI’s Behavioural Analysis Unit, was broadcast at 8.30pm on TV One on Monday 21 February 2011. The storyline involved a man with extensive burn injuries seeking revenge on his victims in the days leading up to Halloween by burning them alive.
 The episode contained scenes which showed victims being splashed with petrol and set alight, including a scene broadcast at 8.34pm, in which a man had a bag put over his head, was hung up with chains and set on fire.
 The programme was preceded by a written and verbal warning which stated:
The following programme is rated Adults Only. It contains scenes that may disturb some people.
 P Milich made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme breached Standards 1 (good taste and decency), 8 (responsible programming) and 10 (violence).
 The complainant said that the episode contained “graphic” images and details on how to commit “gruesome” crimes, which she considered encouraged anti-social behaviour and imitation. Mrs Milich argued that the episode was inappropriate for broadcast at 8.30pm.
 TVNZ assessed the complaint under Standards 1, 8 and 10 and guideline 8a of the Free-to-Air Television Code of Broadcasting Practice. These provide:
Standard 1 Good Taste and Decency
Broadcasters should observe standards of good taste and decency.
Standard 8 Responsible Programming
Broadcasters should ensure programmes:
- are appropriately classified;
- display programme classification information;
- adhere to timebands in accordance with Appendix 1;
- are not presented in such a way as to cause panic, or unwarranted alarm or undue distress; and
- do not deceive or disadvantage the viewer.
Broadcasters should use established classification codes.
- Classification symbols should be displayed at the beginning of each programme and after each advertising break;
- Warnings should be considered when programme content is likely to offend or disturb a significant number of the intended audience.
Standard 10 Violence
Broadcasters should exercise care and discretion when dealing with the issue of violence.
Broadcaster’s Response to the Complainant
 TVNZ stated that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was shown, including the time of broadcast, the programme’s classification, the target audience, and the use of warnings. The broadcaster noted that Criminal Minds was rated AO, restricted to screening after 8.30pm, and preceded by a written and verbal warning for content that may disturb.
 The broadcaster contended that Criminal Minds was a “well-known and popular crime fighting show... now into its sixth series”. It noted that other programmes of the “crime and forensic” genre, for example, CSI, Criminal Intent and Cold Case, also screened at 8.30pm and were “extremely popular” in New Zealand. While the broadcaster agreed that some of the material in the programme was “dark”, it argued that there was considerable audience expectation about the content of such programmes, “where the good guys always get the baddie in the end”. Viewers have the right to receive information and view “artistic works” that are interesting and entertaining and broadcasters have the right to broadcast such material, it argued.
 TVNZ noted the Authority’s previous decision in Campaign for Our Children and CanWest TVWorks Ltd,1 where it declined to uphold a complaint about an episode of CSI Miami, stating that it was a “well-known show that by its very nature deals with matters of violence and the forensic investigation of crime”.
 The broadcaster considered that the violent material, as presented in the episode, was acceptable in the context of an AO-classified programme targeted at adults and preceded by a warning. It emphasised that the programme format was always the same in that it commenced with the depiction of the result of a violent crime, from which point the plot unfolded. It reiterated its view that the content would have accorded with the expectations of regular viewers.
 For the above reasons, the broadcaster did not consider that the episode would have offended viewers in the context in which it was shown and it therefore declined to uphold the Standard 1 complaint.
 TVNZ said that the purpose of the responsible programming standard was to ensure that programmes were correctly classified and displayed appropriate classification information. It reiterated that Criminal Minds was classified AO and preceded by a warning in accordance with guideline 8a to Standard 8. Accordingly, the broadcaster declined to uphold the complaint under Standard 8.
 With regard to Standard 10, the broadcaster argued that the violent content in the episode was acceptable in the context of an AO-rated programme screening at 8.30pm with a warning for “scenes that may disturb”. While the storyline involved a killer who burnt his victims alive, the broadcaster considered that this was not “dwelt upon” and asserted that violent content did not dominate the episode.
 TVNZ found that it had exercised adequate care and discretion in dealing with the issue of violence and it therefore declined to uphold a breach of Standard 10.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mrs Milich referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. She maintained that the episode breached broadcasting standards.
Authority’s Request for Further Information from the Broadcaster
 We asked the broadcaster to provide us with details of Criminal Minds’ classification and time of broadcast for all six series.
 TVNZ responded that Criminal Minds was broadcast at 8.30pm for all six series from 2006 to 2011, and that repeats screened throughout the schedule, often in a later timeslot. It said that the later timeslot was due to the material not being “first run”, rather than the programme content. The broadcaster noted that the programme also screened in Australia at 8.30pm, which it said was the closest comparable television market to New Zealand. It provided the Authority with copies of other television programmes of the same genre which also screened at 8.30pm during the first week of April. It reiterated its view that the material in the episode subject to complaint was consistent with the expectations of that genre screening across channels at 8.30pm.
 The broadcaster provided a ratings profile of the audience for Criminal Minds, which showed that most viewers were aged 40 years and over, and that child viewers constituted a very small percentage. It noted that, for the episode in issue, there were no viewers aged between 5 and 9 years. It said that children were not watching the series, and maintained that it was not aimed at, nor attractive to, child viewers. The broadcaster noted that TV One was targeted at adult viewers aged between 25 and 54 years and that scheduled programming was designed to appeal to, and accord with, the expectations of this audience.
 TVNZ reiterated that, by virtue of section 14 of the Bill or Rights Act 1990, viewers had the right to receive information and view programmes that were interesting and entertaining, and that broadcasters had the right to broadcast such material. It noted that the right to freedom of expression may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (Bill of Rights Act, section 5). The broadcaster referred to the following Bill of Rights commentary:2
...the key question is how to reconcile the freedom of expression and the state’s interest [in protecting its citizens from harm] and whom and what it wants to protect in manner that avoids unduly chilling acceptable expression; yet rationally and proportionately targets harmful expression both at a systematic level and as applied to a particular publication.
 The broadcaster asserted that the Authority must show “real restraint” in upholding complaints where it would limit freedom of expression and must demonstrate that the limit is justified in accordance with the Bill of Rights.
 TVNZ argued that, in the case of Criminal Minds, it was a high rating show enjoyed by adult viewers which had been screening at 8.30pm for a number of years. It said that there was considerable audience expectation of the likely format and content of the series. The broadcaster said that the programme was largely “unremarked upon and not complained about” so there was no indication from the viewing community that such material was unacceptable.
 The broadcaster also noted that the Authority had previously ruled that such material was acceptable for broadcast at 8.30pm.3 It considered that the episode subject to complaint was very similar in expectation and content to an episode previously complained about as well as to other material currently screened across broadcasters at 8.30pm. TVNZ argued that there was no reason to “deviate from commonly held industry expectations of the precedent for this genre based on the type of material that has screened consistently in this genre at 8.30pm and the formal complaint precedent from the Authority”.
 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.
 At the outset, we acknowledge that the broadcaster has the right to freedom of expression under section 14 of the Bill of Rights Act 1990. We acknowledge the importance of section 14 and the values underlying the right to freedom of expression. Any restriction on the broadcaster’s right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).
 In considering whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold the complaint on this occasion, we note that the following contextual factors all favour the broadcaster’s decision to broadcast this episode of Criminal Minds at 8.30pm:
- the programme was preceded by a verbal and written warning for “scenes that may disturb”
- the expectations of regular viewers of Criminal Minds
- audience expectations of the crime drama genre, which lends itself towards more challenging content.
 We also acknowledge that Criminal Minds is now into its sixth season, so that regular viewers of the programme are familiar with its content, and that it has screened at 8.30pm for a number of years. Against these factors, we must weigh the objective and significance of the broadcasting standard concerned, and the extent to which upholding the complaint would limit the broadcaster’s right to freedom of expression.
 TVNZ argued that viewers know what to expect of the crime and police drama programmes in general, many of which screen at 8.30pm. In our view, other programmes of the crime drama genre, such as CSI, NCIS, Cold Case, Bones and Castle typically involve an element of humour, an ongoing romantic tension between some of the characters, and the investigation each week of different events including accidental death, manslaughter and murder. These programmes are not characterised by the horrific, sadistic serial killings which are the subject matter of Criminal Minds. Criminal Minds focuses on murders by sinister and depraved serial killers that come to the attention of the specialist Behavioural Anaylsis Unit of the FBI. In our view, it contains by far the strongest material of any of the crime dramas shown on free-to-air television.
 We also note that, in Archibald and TVNZ,4 which concerned a complaint about the “psychological torture” in an earlier episode of Criminal Minds, the Authority observed that the episode contained “very little actual violence”. One member of this Authority, who is an avid viewer of the programme, is of the view that there has been a significant increase in the level of violent material as the series has progressed, and that the content has become increasingly dark and disturbing.
 Against this background, we now turn to consider the standards raised by Mrs Milich. We wish to emphasise that whether or not we find a breach of broadcasting standards on this occasion, will depend on the particular content of the episode in issue.
Standard 8 (responsible programming)
 Standard 8 requires that programmes and promos are correctly classified and screened in appropriate time-bands. Criminal Minds was classified Adults Only and broadcast at 8.30pm.
 The complainant argued that the episode contained “graphic” images and details on how to commit “gruesome” crimes and considered that it was inappropriate for broadcast at 8.30pm. The broadcaster asserted that the content subject to complaint was acceptable in the context of an AO classified programme targeted at adults and preceded by a warning.
 In order for us to find a breach of Standard 8, we would need to find that the programme required a higher classification of AO 9.30pm. The AO and AO 9.30pm classifications are defined in Appendix 1 of the Code as follows:
AO – Adults Only
Programmes containing adult themes and directed primarily at mature audiences.
AO 9.30pm – Adults Only 9.30pm – 5am
Programmes containing stronger material or special elements which fall outside the AO classification. These programmes may contain a greater degree of sexual activity, potentially offensive language, realistic violence, sexual violence, or horrific encounters.
 The episode subject to complaint was about a psychopathic serial killer who sought revenge on his victims by burning them alive. The opening scene showed a man being dragged across the ground and then hung up with chains, splashed with petrol and set on fire. This was followed by several other scenes in which the killer committed calculated and brutal acts of violence. A particularly disturbing scene showed a man engulfed in fire, screaming and running into the path of a moving car, being hit by the car, and then falling to the ground, burning alive. We disagree with the broadcaster that violent content and themes did not dominate the episode.
 Further, we consider that the warning for “scenes that may disturb” would not have adequately prepared viewers for the scenes contained in the episode. It was, in our view, of an extremely cruel, calculated and depraved nature, which carried dark and sinister undertones. In our opinion, the episode should have contained a more specific warning for “graphic violence”.
 In our view, the violence depicted in the episode was extreme and graphic, and the underlying themes were sinister and deeply disturbing. As discussed above, we consider that the nature and degree of violent content in this episode can be distinguished from other episodes and programmes of the same genre screened in the 8.30pm timeslot.
 We have therefore reached the conclusion that the episode warranted an AO 9.30pm classification, which is reserved for programmes that contain stronger material which falls outside the AO classification, including “realistic violence, sexual violence, or horrific encounters”. For the reasons given above, we are in no doubt that the violence depicted in this episode met the definition of “horrific encounters” and therefore the programme contained “stronger material” as envisaged by the higher classification.
 Accordingly, we find that the episode was incorrectly classified AO, and should have been classified AO 9.30pm and broadcast at a later hour.
Standard 10 (violence)
 Standard 10 states that broadcasters should exercise care and discretion when dealing with the issue of violence.
 We have found above that the violence in the programme was graphic and disturbing, and part of a sinister plot line, amounting to strong adult material which should have been broadcast in a later timeslot. We are also of the view that the pre-broadcast warning for “scenes that may disturb” was not sufficiently specific to alert viewers to the type of content the programme might contain.
 Accordingly, we are satisfied that the broadcaster did not exercise adequate care and discretion when dealing with the issue of violence.
Standard 1 (good taste and decency)
 We have already acknowledged that there are a number of contextual factors which favour the broadcaster’s position, including the classification, an adult target audience, and the expectations of regular viewers, both of the programme and of the crime drama genre. These factors, however, will not always be sufficient to prevent a programme breaching standards of good taste and decency.
 We have found above that the strong adult content and the realistic violence in the programme warranted a higher classification and a later time of broadcast. While the programme was preceded by a warning for “scenes that may disturb”, we consider that it was not adequate, or sufficiently specific, to prepare viewers for the horrific and calculated nature of the violence depicted in the episode.
 We have also expressed our view above that the content of other crime programmes screened at 8.30pm is far less violent and challenging than the content in this episode of Criminal Minds.
 We have therefore reached the conclusion that the broadcast of this episode of Criminal Minds was not consistent with current norms of good taste and decency in the context in which it screened.
Bill of Rights
 Having reached the conclusion under these standards that the episode was incorrectly classified and screened too early in the evening, we must now consider whether to uphold the complaint under Standards 1, 8 and 10.
 As already stated above, we acknowledge that upholding the complaint would place a limit on the broadcaster’s right to freedom of expression. The Authority has previously determined that upholding a complaint under Standard 8, Standard 10 or Standard 1 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.5
 Those decisions also outlined the objectives of Standards 1, 8 and 10. The responsible programming standard exists to ensure, among other things, that broadcasters correctly classify programmes so that viewers are sufficiently informed as to their likely content. The violence standard ensures that broadcasters use care and discretion to exclude unsuitable violent material and to promote the use of warnings where necessary to protect viewers. The primary objective of Standard 1 is to protect against the broadcast of sexual content, violent material, and language that exceeds current norms of good taste and decency in the context in which it was shown.
 We consider that these objectives are important. Viewers or listeners should be able to make informed choices about the kind of broadcast material they consume, and have the right not to be offended by, and to be protected from, material which exceeds their expectations in the context in which it is shown.
 We have found above that this episode of Criminal Minds contained disturbing adult themes and graphic violence which went beyond what is appropriate for broadcast at 8.30pm on free-to-air television. The pre-broadcast warning did not adequately signal the graphic violence and themes throughout, and this content warranted a higher classification and a later time of broadcast. In this respect, upholding the complaint clearly promotes the objectives of the three standards.
 We also consider that upholding the complaint would not place a significant limit on TVNZ’s right to freedom of expression. We appreciate that Criminal Minds is a very successful and popular series, and we are not suggesting that the episode should have been heavily edited, or should not have been broadcast. Our finding simply indicates that the nature of the themes and the level of violent material in this particular episode of the series deserved a higher classification, and should have been screened in the later timeslot of 9.30pm.
 Having weighed all of the considerations outlined above, including the factors in paragraphs  to , we have reached the conclusion that the complaint should be upheld under Standards 1, 8 and 10, and that doing so would be a reasonable and proportionate limit on TVNZ’s freedom of expression.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Criminal Minds on 21 February 2011 breached Standards 1, 8 and 10 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. In our view, the publication of this decision is sufficient to provide guidance for broadcasters on our expectations surrounding the broadcast of this type of material at 8.30pm.
Signed for and on behalf of the Authority
8 July 2011
The following correspondence was received and considered by the Authority when it determined this complaint:
1 P Milich’s formal complaint – 22 February 2011
2 TVNZ’s response to the formal complaint – 19 April 2011
3 Mrs Milich’s referral to the Authority – 26 April 2011
4 TVNZ’s response to the Authority – 27 May 2011
5 TVNZ’s response to the Authority’s request for further information – 10 June 2011
1Decision No. 2004-168
2The New Zealand Bill of Rights Act: a commentary (Andrew S. Butler and Petra Butler) (2005)
4Decision No. 2008-019