Preston and Discovery NZ Ltd - 2021-011 (11 August 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- David Preston
BroadcasterDiscovery NZ Ltd
Warning: This decision contains language that some readers may find offensive
[This summary does not form part of the decision.]
The Authority has upheld a complaint about the classification and scheduling of an episode of SAS Australia which was classified ‘M’ and screened at 7.30pm. The episode featured aggression, potentially distressing psychological elements and frequent coarse language (more than 35 instances or variations of ‘fuck’). The Authority found this content warranted a higher classification of ‘16’ rather than ‘M’, a stronger warning for frequent language and a later time of broadcast outside of children’s normally accepted viewing times (after 8.30pm). It therefore upheld the complaint under the good taste and decency and children’s interests standards, as viewers were not given sufficient reliable information to make an informed viewing choice or exercise discretion.
Upheld: Good Taste and Decency, Children’s Interests
Not Upheld: Violence
 The first episode of SAS Australia, a reality show based on the UK version SAS: Who Dares Wins, was broadcast at 7.30pm on 4 February 2021 on Bravo. The programme followed 17 Australian celebrities put through a gruelling two-week-long quasi-military training course designed to replicate Special Air Service selection.
 The episode introduced the contestants to the training camp and had them complete a number of physical challenges, including falling backwards out of a helicopter into deep water and fighting each other in hand-to-hand combat. The programme’s host yelled at the celebrities and often swore at them, using the word ‘fuck’ more than 35 times in the episode. For example:
- ‘Fucking pin your ears back and listen in… This isn't a game. No fucking around. No joking around.’
- To a contestant crawling in mud: ‘…You are pathetic. …Fucking move yourself. So don’t let fucking Bigby in front of you. …What are you, a demented seal? Get off your knees. Hurry the fuck up. …Because I tell you what, being cold and wet and muddy is a lot better than getting your fucking head blown off’.
- ‘Fucking state of them. Hurry up. Keep the fucking noise down. I didn't say, “talk”, did I?’
- ‘What are you crying for… fucking weakness that you’re showing to the enemy right now.’
- ‘Hey, who the fuck are you 'heying'? Fucking little – now crawl back to your position. …If you want to fuck around and you think this is a joke then just give your numbers in now [quit the show] and fuck off. Stop wasting our time.’
 The programme was preceded by an onscreen warning, ‘This program contains scenes of physical danger and mental stress that some viewers may find confronting. Viewer discretion is advised.’ We were advised by the broadcaster:
- The programme was rated M-LC (M – Mature Audiences: Suitable for mature audiences 16 years and over; L – language may offend; C – content may offend), and these labels were displayed at the beginning of the programme along with the description ‘This programme is M (Mature) and may contain Language (L) and Offensive Content (C)’, and also after each ad break. Due to technical maintenance, the broadcaster was unable to supply the Authority with the original broadcast recording so we have not been able to view these labels as broadcast.
- The printed TV Guide synopsis read, ‘Celebrities undertake a series of extreme tasks, including jumping backwards out of a helicopter and hand to hand combat, as they begin the challenge of completing the gruelling SAS selection course.’ The electronic programme guide read, ‘Celebrities undertake a series of extreme tasks, including jumping backwards out of a helicopter as they begin the challenge of completing the gruelling SAS selection course.’ Neither contained the classification or warning labels.
 David Preston complained the programme breached the good taste and decency, children’s interests, and violence standards:
- ‘Due to its content of foul language, physical and psychological extremes’, the programme was broadcast ‘too early in the evening when children would certainly be watching’. The programme is unsuitable for ‘exposure to undeveloped children’s minds’.
- ‘10.30pm would be more appropriate’. ‘I could accept 9.30 but even that is borderline, 8.30 would also still be too early unless the language was first “beeped out" or edited.’
- ‘The violence shown (physical, mental / psychological) was genuine and real, not acting or cartoon. Children would not be able to understand the reasons for this in context.’
The broadcaster’s response
 Discovery did not uphold the complaint for the following reasons:
- The Broadcast was classified M (Mature Audiences) with content advisories for L (coarse language) and C (content).’
- ‘The M-LC classification was shown on screen at the start of the [programme] along with the description “This programme is M (Mature) and may contain Language (L) and Offensive Content (C)” and [these labels] were also shown on screen after each commercial break.’
- ‘The programme contained a warning at the beginning alerting viewers that it contained scenes of physical danger and mental stress enabling viewers to make an informed decision as to whether they wished to view the upcoming material.’
- ‘The title of the programme gave viewers a solid indication of the subject nature of the programme. For any viewers who may find content about the Australian SAS distressing, the title provided enough information that they could make an informed choice as to whether or not they wished to view the programme.’
- ‘There was sufficient information… in order for parents to make an informed viewing decision on behalf of their children’.
- Regarding the violence standard, ‘the brief fighting scenes between contestants were justified by the context of the Broadcast [and]… did not exceed the boundaries of an M-rated programme nor were they so graphic as to warrant a higher classification or later time of broadcast’.
 In its response to the complaint referral, Discovery added:
- ‘While we have not altered the view in our decision for Episode 1, in subsequent episodes of the series, the volume of coarse language increased which led to us revising how we have treated the later episodes in the series.’
- ‘When the language further increased in episode 3, we took the decision to bleep the language in that and the remaining episodes as we considered these episodes beyond “moderate”.’
 The good taste and decency standard1 states current norms of good taste and decency should be maintained, consistent with the context of the programme and the wider context of the broadcast. The standard is intended to protect audiences from content likely to cause widespread undue offence or distress, or undermine widely shared community standards.2
 The children’s interests standard3 requires broadcasters to ensure children are protected from broadcasts which might adversely affect them. 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 the expectations of the programme’s classification.4
 The violence standard5 requires broadcasters to exercise care and discretion when portraying violence. The purpose of the standard is to protect audiences from unduly disturbing violent content. A broadcast’s context may justify the inclusion of violent material or minimise its harmfulness.6
Retention of the broadcast
 We have watched a copy of the programme supplied to us by the broadcaster, and read the correspondence listed in the Appendix.
 As noted above, Discovery was unable to provide a recording of the programme as it was actually broadcast, as at the time the media proxy software used by Discovery to record its channels was under repair. The episode we have viewed is ‘the source material from the supplier, not a copy of the material as it was broadcast including the on-air presentation and commercial breaks’. This means we have been unable to view the classification and warnings as broadcast, although Discovery commented, ‘We would like to assure the Authority that the M classification and the content advisories L and C were broadcast when the programme went to air.’ It apologised for the inconvenience.
 The Codebook states, ‘All broadcasters are expected to retain recordings of all broadcasts for 35 days. In the event of a complaint, this assists the broadcaster to argue their point of view and ensures the BSA gains a correct understanding of the content, context and tone of the broadcast.’7
 In this instance, we consider the programme provided sufficiently enables us to determine the complaint. However, we remind Discovery and all broadcasters to ensure an alternative method is in place for retaining recordings of programmes broadcast, when their recording software is going to be unavailable for any period of time.
Freedom of expression
 The right to freedom of expression is an important right in a democracy and it is our starting point when we consider a complaint. It includes both the broadcaster’s right to offer a range of information and programmes, and the audience’s right to receive those. Our task is to weigh the right to freedom of expression, and the value in the programme, against the harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the level of harm justifies placing a reasonable limit on the right to freedom of expression.
 SAS Australia is in essence a reality TV show featuring celebrities facing challenges. We assessed the level of potential harm caused by the broadcast, applying the objectives of the standards raised. Overall, we have found the potential harm under the good taste and decency and children’s interests standards warrants regulatory intervention and limiting the right to freedom of expression.
Good taste and decency
 The context in which the content occurred and the wider context of the broadcast are highly relevant when assessing the level of potential harm and whether the broadcast breached this standard.8 In this case relevant contextual factors include:
- SAS Australia is a reality TV show with military themes, depicting Australian celebrities pushed to their limits by completing extreme tasks.
- The programme was classified ‘M’ with audience advisories ‘L’ – language may offend and ‘C’ – content may offend.
- The programme classification and advisory labels were not listed in the TV Guide or the electronic programme guide. We are advised by the broadcaster they were displayed at the beginning of the programme and after each ad break.
- The programme was also preceded by two warnings, one onscreen for ‘scenes of physical danger and mental stress that some viewers may find confronting. Viewer discretion is advised’, and according to the broadcaster another which described the M-LC labels.
- The programme was shown at 7.30pm, after which time ‘M’ programmes are permitted to screen, but still within children’s normally accepted viewing times (usually up until 8.30pm).
- It was aimed at an adult audience (including young adults).9
- In the Authority’s 2018 Language That May Offend in Broadcasting research, ‘fuck’ ranked 13th out of 31 words tested for their level of offensiveness among the surveyed members of the public.10 Of those surveyed, 39% of respondents found the word ‘fuck’ unacceptable in all scenarios (when asked whether its acceptability ‘depends on the scenario’).11
- The Authority has previously declined to uphold complaints about the use of the word ‘fuck’ once during a programme classified ‘M’,12 and about its use four times during a programme classified ‘ML’ and accompanied by a warning for coarse language.13 We also recently found a programme containing more than 25 instances of ‘fuck’ and variations, ought to have been classified ‘M’ (rather than ‘PG’) and preceded by a more detailed warning for ‘frequent coarse language’ in addition to the ‘L’ advisory.14
- This episode of SAS Australia contained more than 35 instances of ‘fuck’ and its derivations.
- The swearing was directed at the contestants and was at times aggressive, demeaning or vitriolic.
- The swearing and aggression of the host is an aspect of the challenges the contestants face, by psychologically and emotionally pushing them to their limits.
- Audience expectations for Bravo are for reality TV programmes and docu-series, with a focus on food, fashion, beauty, design and pop culture.15
- The programme was preceded by Million Dollar Listing, rated ‘G’, a show which ‘chronicles the professional and personal lives of real estate agents’ and has an adult target audience.
 An equally important feature of the good taste and decency standard – and the Code more broadly – is that it recognises audiences are less likely to be offended when ‘they know what they’re getting’ and they are able to exercise ‘choice and control’.16 Where broadcasters take effective steps to inform their audiences of the nature of their programmes, and enable viewers to regulate their own and their children’s viewing behaviour, they are less likely to breach this standard.17
 The key question in our view, was whether the programme’s ‘M’ classification, 7.30pm time of broadcast, ‘L’ and ‘C’ warning labels for language and content, and the pre-broadcast onscreen warning for the psychological elements of the programme, were sufficient to signpost and prepare viewers for the programme’s content and enable them to make an informed viewing choice.
 Considering first whether the ‘M’ classification was correct, or whether the programme warranted a higher rating and a later time of broadcast, we note the ‘M’ and ’16’ classifications are defined as follows:18
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.
On free-to-air television, 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.
16 – People under 16 years should not view.
Programmes classified 16 contain stronger material or special elements which are outside the M classification. These programmes may contain a greater degree of sexual material, offensive language, realistic violence, and stronger adult themes.
On free-to-air television, 16 programmes may be screened after 8.30pm until 5am.
 Viewers would have anticipated some coarse language from the rating and the ‘L’ advisory, and the onscreen warning prepared them for the psychological elements to an extent. However we do not agree that more than 35 instances of ‘fuck’ is a ‘moderate’ level of content, as it was categorised by the broadcaster in its later submissions – especially combined with the mature themes and the rather aggressive and potentially disturbing tone of the programme overall, which also included elements of bullying, interrogation, humiliation and duress. All of these elements combined were more consistent with the ‘16’ classification and a more detailed language warning, for example for ‘frequent coarse language’.
 Therefore we find the broadcaster did not provide adequate, reliable information to enable viewers to make an informed viewing choice. This was exacerbated by the fact the classification and warning labels were not included in the programme guide entries; this is an important part of the suite of information available to viewers to help them make good choices. In any event the content was likely to go beyond reasonable audience expectations, meaning viewers were more likely to be surprised and offended or distressed by it. A ‘16’ rating and an 8.30pm broadcast time would have been more consistent with the content and the requirements of the Code.
 We consider upholding the good taste and decency complaint and requiring a stronger classification and warning for such material represents a reasonable and justified limit on the broadcaster’s freedom of expression. We therefore uphold the good taste and decency complaint regarding Episode 1.
 In addition to the factors listed in paragraph , we noted the following factors relating to children’s interests in particular (as opposed to the general audience):
- The programme had an adventurous element, and featured celebrities, meaning it may appeal to some child viewers.
- Although the ‘M’ rating indicated the programme was suitable for mature audiences over 16 (and a child is defined as being under 14), the programme screened during children’s normally accepted viewing times (for free-to-air television this is usually up to 8.30pm).19 In any event we have found the programme’s content warranted a higher rating of ‘16’ and a later time of broadcast.
- The programme screened immediately after a ‘G’-classified programme, and although that programme was not targeted at children, the quick transition into very ‘adult’ content in SAS Australia does not demonstrate sufficient care was taken by the broadcaster.
- In addition to the frequent coarse language, the overall tone and themes of the programme were clearly adult in nature and required a mature outlook.
 The programme information standard (while not nominated in this case) requires broadcasters to responsibly schedule programmes including taking care around transition times from ‘G/PG’ to ‘M’ (ie at 7.30pm), and to give careful consideration to the likely and target audience, and all standards, including in particular children’s interests, when scheduling programmes.20
 Taking into account these additional factors and the safeguards that were built into the standards when the timebands and classifications were revised in 2020,21 for the same reasons we also find insufficient care was taken to enable child viewers to be protected from unsuitable content. Viewers were not given sufficient, reliable information to exercise discretion.
 Therefore we uphold the complaint under the children’s interests standard.
 The complainant was concerned about the depiction of violence that was ‘real’, rather than ‘acting or cartoon’. The standard is concerned with ‘unduly disturbing violent content’22 and ensuring depiction of violence is justified by context.23
 However we do not consider it contained ‘violence’ at a level that was unjustified or inconsistent with the programme’s premise, as a quasi-military reality TV programme which promotes itself as pushing contestants to physical and mental extremes. While there was a short depiction of hand-to-hand combat between contestants, the majority of the programme focused on individual, physical challenges. The fighting shown in the programme, while realistic, was not glorified, extended or particularly graphic.
 Accordingly we do not uphold the complaint under the violence standard.
For the above reasons the Authority upholds the complaint that the broadcast by Discovery NZ Ltd of SAS Australia on 4 February 2021 breached Standards 1 and 3 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld two aspects of the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the complainant and the broadcaster.
 Discovery accepted the Authority’s finding, and acknowledged ‘this was a legitimate breach’. It commented:
We would also like to assure the Authority that we have clear and established processes in place to ensure our content complies with broadcasting standards. As a result of this decision, those process[es] have been reviewed and subjected to robust scrutiny, to ensure that our programme certification and scheduling decisions are consistent with broadcasting standards and with the Authority's most recent guidance.
Since the introduction of the new classification regime last year, we have been mindful about the level of coarse language broadcast in the new certificate of M, particularly for content scheduled prior to the adults-only watershed of 8.30 pm. This decision provides us with extremely useful information and guidance to apply for future content appraisal as it draws the lines between the different certificates and what level of language is acceptable in each, particularly when considered in conjunction with another recent BSA decision [2020-155]. As the new classification regime is still in relatively early stages for both broadcasters and the audience, the guidance in these decisions is invaluable.
 Regarding SAS Australia and orders, Discovery submitted:
- ‘SAS Australia was broadcast at 7.30 pm in Australia and rated M. We had taken that Australian rating and scheduling into consideration when viewing this series and allocating an M certificate, and when scheduling the series at 7.30 pm.’
- ‘…the New Zealand audience is still getting used to the new classification regime and may not be ready for the same level of coarse language as an Australian audience in that time-slot’.
- ‘We note that some of the New Zealand audience is ready for this amount of coarse language at 7.30 pm as we also received formal complaints about the coarse language being bleeped/masked for the later episodes in the series. That being said, we sincerely apologise for any upset SAS Australia may have caused to some members of our audience.
- ‘…publication of this decision is sufficient as it publicly notifies the breach of the Good Taste and Decency and Children's Interests standards’.
- ‘In our view, it would be something of a disconnect for the audience to view a broadcast statement about a series that ended months ago on-air.’
- ‘…this was our first complaint about M-rated content screening at 7.30 pm under the new classification regime…we have genuinely learned from the uphold and applied the guidance provided in this decision to our certification and scheduling decision making processes’.
 Mr Preston requested we ‘impose sufficient penalties to deter this and other broadcasters from making further infringements and abusing the trust of the public and our children’. He commented:
- ‘Although audio and visual warnings may (or were said to) have been given prior to the [programme]’s airing, how could unsupervised children viewing (too young to read or understand the warnings), be protected from the inappropriate content of the [programme]? They were not protected.’
- Under the violence standard, the question should be: ‘Was the violence shown suitable / appropriate for children viewing at that time i.e 7.30 pm, not was it appropriate to the [programme]’s theme.’
- ‘Most people would not wish their children to pick up “bar room” language from an entertainment source at home in their own living room or their child’s bedroom.’
- ‘Personally, I disagree with “M” and 16 classified [programmes] being aired between 9am & 3pm when children are around or any time before 8.30 / 9.00pm.’
Authority’s decision on orders
 When deciding whether to impose an order and the type of order to impose, the Authority considers relevant factors, which may include:
- 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
- any repetition of the breach or previous warning by way of precedents
- 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 the breach and 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
- the length of time since the programme was broadcast and the potential damage resulting from reviving old issues or information
- past decisions and/or orders in similar cases.
 We consider the following aggravating and mitigating factors are relevant in this case:
- The conduct is at the medium end of the spectrum. It is more severe than the recent finding in Roberts and Sky Network Television (Decision No. 2020-155) given the aggression, vitriol and psychological elements as well as the quantity of the language.
- Discovery did not uphold the complaint in the first instance (but has accepted the Authority’s decision).
- As submitted by Discovery, this is the first complaint upheld against it under the changed codebook rules.
- The breach is not as severe as McCaw and Sky Network Television (Decision No. 2015-011), which used more offensive expletives and had imagery containing suggestions of sexual violence and torture associated with BDSM; nor Evans and MediaWorks TV Ltd (Decision No. 2018-092), which was graphic and disturbing.
- This is the first complaint under good taste and decency and children’s interests upheld against this broadcaster since April 2019, though the conduct was more severe in that case.24
- The use of offensive language alone has not typically resulted in orders against broadcasters.
 Weighing these factors, we have decided not to make any order in this case. We consider the most appropriate and effective remedy is publication of our decision, which provides sufficient guidance to Discovery and to all broadcasters on the requirements of the standards with respect to classifying, and giving appropriate audience advisories for, such content.
Signed for and on behalf of the Authority
Judge Bill Hastings
11 August 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 David Preston’s complaint to Discovery – 4 February 2021
2 Discovery’s decision on the complaint – 12 February 2021
3 Mr Preston’s referral to the Authority – 13 February 2021
4 Discovery’s comments on the referral – 4 March 2021
5 Mr Preston’s final comments – 4 May 2021
6 Further information from Discovery regarding actions taken for later episodes, and programme guides – 18 May 2021
7 Mr Preston’s submissions on orders – 2 July 2021
8 Discovery’s submissions on orders – 2 July 2021
9 Mr Preston’s final comments – 7 July 2021
1 Standard 1 of the Free-to-Air Television Code of Broadcasting Practice
2 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
3 Standard 3 of the Free-to-Air Television Code of Broadcasting Practice
4 Guideline 3a
5 Standard 4 of the Free-to-Air Television Code of Broadcasting Practice
6 Commentary: Violence, Broadcasting Standards in New Zealand Codebook, page 14
7 Broadcasting Standards in New Zealand Codebook, page 5
8 Guideline 1a
9 Hannah Blackiston “Seven’s SAS Australia brings in 834,000 metro viewers for first episode” Mumbrella (online ed, Australia, 20 October 2020)
10 Broadcasting Standards Authority (June 2018) “Language That May Offend in Broadcasting” <bsa.govt.nz>, page 6
11 As above
12 Francis and Television New Zealand Ltd, Decision No. 2020-055
13 Bennett and Television New Zealand Ltd, Decision No. 2020-091
14 Roberts and Sky Network Television Ltd, Decision No. 2020-155
15 Bravo “About Us” <www.bravotv.co.nz>
16 Choice and Control, Broadcasting Standards in New Zealand Codebook, page 7
17 Guideline 1b
18 Definitions, Broadcasting Standards in New Zealand Codebook, page 9
19 Definitions, Broadcasting Standards in New Zealand Codebook, page 9
20 Guidelines 2c and 2d
21 Broadcasting Standards Authority “Free-to-Air Television Classifications and Audience Advisories” <www.bsa.govt.nz>
22 Commentary: Violence, Broadcasting Standards in New Zealand Codebook, page 14
23 Guideline 4a
24 Evans and MediaWorks TV Ltd, Decision No. 2018-092