Simpson and TVWorks Ltd - 2013-031
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Leigh Pearson
- David Simpson
ProgrammeHome and Away
Channel/StationTV3 # 3
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Home and Away – programme classified G and broadcast at 5.30pm contained storyline involving the date rape of a teenage girl – allegedly in breach of responsible programming, and discrimination and denigration standards
Standard 8 (responsible programming) – episode was unsuitable for unsupervised child viewers and incorrectly classified G – upheld
This headnote does not form part of the decision.
 An episode of Home and Away, an Australian soap opera, included a storyline that involved the date rape of a teenage girl. The episode was classified G and broadcast on TV3 at 5.30pm on 11 April 2013.
 David Simpson made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the episode was “highly offensive” and that themes of rape and HIV were inappropriate in a G-rated programme.
 Mr Simpson raised Standard 7 (discrimination and denigration) and Standard 8 (responsible programming) in his original complaint. His primary concern is the programme’s classification and timeslot, so we have limited our determination to the responsible programming standard.
 The issue therefore, is whether the episode breached Standard 8 of the Free-to-Air Television Code of Broadcasting Practice.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Was this episode of Home and Away correctly classified G and screened in an appropriate timeslot?
 The responsible programming standard (Standard 8) is primarily aimed at ensuring that programmes are correctly classified and screened in appropriate timeslots. The standard exists to create consistency and certainty for viewers, who rely on the classification of a programme and its time of broadcast to give them a fair indication of its content.
 This episode of Home and Away was rated G (General) and broadcast at 5.30pm. The G classification is defined as follows in Appendix 1 to the Code:
G – General
Programmes which exclude material likely to be unsuitable for children. Programmes may not necessarily be designed for child viewers but should not contain material likely to alarm or distress them.
G programmes may be screened at any time.
 Mr Simpson argued that the Home and Away series, and particularly the content of this episode, did not fit with the G classification and should have been rated PGR. To support his contention the themes and content of this episode were “highly offensive”, Mr Simpson referred to a “help billboard” which appeared onscreen after the programme, referring viewers to the Rape Prevention Education website. While Mr Simpson’s concerns relate to the classification of the entire programme series, our jurisdiction is limited to an assessment of this particular episode, though as with every complaint, we have taken into consideration relevant contextual factors including the nature of the series and audience expectations.
 TVWorks described Home and Away as an “extremely popular” long-running soap opera that routinely dealt with “adult” subject matters, but which was nevertheless deemed appropriate for the G timeslot. It acknowledged that programmes dealing with rape were likely to be “upsetting” to viewers regardless of their classification, but argued that the subject of rape should not “necessarily” be excluded from G-rated programmes, provided it was handled with care. It considered that the date rape scene was dealt with “as sensitively as possible and conveyed the seriousness of the incident without trivialising it”, and emphasised that the episode did not depict the rape itself or any graphic violence, but was limited to the moments leading up to the rape. TVWorks concluded that the scene was unlikely to have caused “significant or widespread distress or alarm” or “unacceptable distress” to a significant number of viewers, including children.
 For the reasons expressed below, we feel strongly that the inclusion of a storyline about rape in this episode of Home and Away went beyond what was acceptable in a G-rated programme broadcast at 5.30pm.
 A “child” is defined in Appendix 1 to the Code as a boy or girl under the age of 14 years. All G programmes must be suitable for unaccompanied children of any age, from teenagers to very young children. TVWorks argued that Home and Away often contained storylines more suited to a mature audience, and that in this respect, audience expectations for this programme may be more lenient than for other G-rated programmes. Whether or not this is the case, it is the broadcaster’s obligation to ensure that each episode complies with its G classification; audience expectations do not absolve it from the requirements of Standard 8.
 By its very nature, the concept of rape, and specifically the combination of sex and violence, is highly disturbing, likely to cause “alarm or distress” for viewers of all ages, and therefore “unsuitable for children” and inconsistent with the G classification. In fact, TVWorks’ categorisation of the programme’s content (see paragraph ) more accurately reflects the PGR classification, defined as “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.”
 TVWorks accepted the rape storyline was “relatively challenging” and came “very close to the acceptability threshold” in a G programme, but considered it was handled sensitively and was not explicitly depicted. While we agree no explicit violence or graphic material was shown, and the storyline was implied through the characters’ dialogue and the victim’s emotions, the visual depiction of the victim’s flashbacks of events leading up to the rape, and her obvious trauma afterwards, carried sinister undertones. It was clear from scenes showing the interactions between the victim and the perpetrator that the victim was very afraid and that the sexual encounter was not consensual. We think it should have been obvious to the broadcaster that this type of material would be confusing and frightening for children, especially without the guidance of an adult.
 As an aside, we note that guideline 10c to the violence standard states that programmes in which rape or sexual violence is a theme should be treated with care, and should be preceded by a warning. This recognises that the theme of rape may be distressing and disturbing for all viewers (not just children), and should be clearly signposted so that viewers have an opportunity to make a different viewing choice. No warning preceded this episode of Home and Away, so had the violence standard been raised in this case, that would also have been breached in our view. In any event, children under 14 should not be expected to regulate their own viewing in this manner, supporting our finding that the classification was inadequate.
 In deciding whether to uphold the complaint, we must also consider the right to freedom of expression, and balance this against the harm alleged to have been caused by the broadcast. We accept that the broadcast had entertainment value and arguably carried a level of public interest; it promoted awareness of rape, and potentially offered support to victims by broadcasting a “help billboard” at the end of the episode.
 However, the episode’s incorrect classification and inappropriate time of broadcast meant that viewers were not properly informed of the likely content and were denied any opportunity to make a different viewing choice, or to exercise discretion with regard to their children’s viewing. Viewers should be able to rely on the classification system, and are entitled to expect they do not need to monitor their children’s exposure to G programmes. In the Authority’s 2006 publication Freedoms and Fetters, it was observed that:
...children are worthy of special protection. Whether about radio or television, the BSA’s decisions emphasise its strong expectation that material likely to be heard or seen by children should recognise their innocence and vulnerability. The television classification and watershed systems underpin this special protection.
 The importance of protecting children from unsuitable content in our view outweighed the broadcaster’s right to freedom of expression in relation to this episode. Upholding the complaint would not unreasonably restrict this right. We are not making a finding that the episode should not have been broadcast at all. The episode could have screened without breaching standards if it had been correctly classified and adhered to the time-bands in the Code. Any public interest value in the programme would have been better served by targeting the programme at a more mature audience in a later timeslot.
 Accordingly, we uphold the complaint that the broadcast breached Standard 8.
Discrepancy between TV3 and SKY classifications
 As an aside, Mr Simpson noted that Home and Away was classified ‘M’ on SKY,1 and he considered that this made a “mockery” of the Authority’s classification system. In response, TVWorks noted that TV3 furnished SKY with automated electronic communication on a weekly basis, relating to the upcoming programme schedule, but contended that because Home and Away was delivered to TV3 after this communication took place, SKY’s system “cautiously” defaulted to an ‘M’. The broadcaster maintained that, despite these “occasional discrepancies”, the TV3-generated classification was always visible to SKY viewers, making them aware of the programme’s correct rating.
 Under the broadcasting standards system, TVWorks is ultimately responsible for its own programme appraisal and classification decisions. We understand Mr Simpson’s view that the ‘M’ rating allocated by SKY supports the view that the programme was unsuitable for children. He also raises an interesting point in terms of the discrepancy. Nevertheless, this discrepancy in classifications across the free-to-air and pay TV platforms is an issue that is wider than the scope of this particular complaint and cannot be addressed here.
For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of Home and Away on 11 April 2013 breached Standard 8 (responsible programming) 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 invited submissions on orders from the parties.
Submissions on Orders
 Mr Simpson noted that Home and Away had changed networks, meaning the right to broadcast the programme had been transferred from TVWorks to TVNZ. On this basis, he submitted that TVNZ should be made to re-classify the entire series PGR.
 TVWorks accepted the Authority’s findings that rape was inappropriate during a G programme and said the decision had established a clear line. It submitted that the Authority should take into account the following when considering orders:
- the situation is unusual in that by the time the decision was released TVWorks would no longer be broadcasting Home and Away
- Home and Away had been a mainstay at 5.30pm and developed a strong regular audience
- the material typically presented over the years aligned with expectations of the G classification and of its audience
- where content was more challenging and towards the boundaries of the G classification censor edits were made to ensure the programme complied with its rating
- there were relatively few decisions by the Authority finding the programme breached standards in relation to its G timeslot
- recently, more challenging material had been introduced which required censor cuts. Storylines were also becoming more challenging but these could not be mitigated by censor edits, so overall it had become more difficult to ensure the programme complied with its G classification
in this instance the audience was not harmed; Mr Simpson did not assert that the episode caused any harm to children, and in terms of actual harm none had been established.
 In light of these factors, TVWorks concluded that publication of the decision was sufficient to meet the objective of establishing that the issue of rape in the Home and Away context or similar was not suitable. It considered no order was necessary.
Authority’s decision on Orders
 Our decision on orders is made against the backdrop of Home and Away shifting to a new broadcaster, meaning the responsibilities for this programme and its classification now lie with TVNZ.
 In determining whether to impose any order, we take into account that TVWorks has accepted that this decision draws a clear line in terms of the type of themes and content that is acceptable for broadcast in G-rated programmes. We also recognise that only one complaint about Home and Away has previously been upheld,2 with another resulting in a decision that was not unanimous.3
 In our view, rather than imposing a penalty, it is more useful to engage in constructive dialogue about what is expected going forward. We are satisfied that publication of this decision will provide guidance for TVWorks and other broadcasters, including TVNZ, about the Authority’s expectations of G-rated programmes broadcast during children’s viewing times.
 We therefore find that in all the circumstances no order is warranted.
Signed for and on behalf of the Authority
1 October 2013
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 David Simpson’s formal complaint letters – 15 and 29 April 2013
2 TVWorks’ response to the complaint letters – 17 May 2013
3 Mr Simpson’s referral to the Authority – 21 May 2013
4 TVWorks’ response to the Authority – 4 June 2013
5 Mr Simpson’s final comment – 7 June 2013
6 Mr Simpson’s submissions on provisional decision – 25 July 2013
7 TVWorks’ submissions on provisional decision – 9 August 2013
1‘M’ is defined in the Pay TV Code as “Suitable for Mature audiences 16 years and over”.
2Sundborn and TVWorks Ltd, Decision No. 2010-044
3Simpson and TVWorks Ltd, Decision No. 2009-120