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Ugly Decision of BSA - Attack on Children’s Rights

Ugly Decision of BSA An Attack on Children’s Rights

Mr Peter Cartwright, Chair of the four-member Broadcasting Standards Authority (BSA), signed off a decision dated 24 July 2003 (released to the media today), that declined to uphold a complaint brought by the Society about the film The Ugly - broadcast on TV4 at 9.30 pm on 16 January 2003 during the summer school holidays. The screening of this “psychological thriller made in New Zealand” and classified by the Office of Film and Literature Classification (OFLC) as R18, was preceded by a verbal and written warning which advised viewers:

“This film contains scenes of violence and coarse language. It is intended for Adult audiences.”

The Society notes that Mr Cartwright holds the chairmanship of the BSA while at the same time is a member of the nine-member Film and Literature Board of Review, the statutory body that deals with appeals against OFLC film classifications. It points out that a logical nexus exists between ss. 4 and 13A of the Broadcasting Act 1989 and s. 3(4) of the Films, Videos and Publications Act 1993 (“FVPC Act”), both of which Mr Cartwright is required to interpret and apply in his dual censorship roles in the context of decisions made by different statutory bodies. The BSA’s determination with respect to The Ugly a par. 33 highlights this link:

“The complainant stressed the R18 rating given to the film by the Office of Film and Literature Classification (OFLC). THE AUTHORITY ACCEPTS THAT THE OFLC RATINGS PROVIDE A STARTING POINT, but agrees with TV’s statement that an OFLC rating does not determine the broadcaster’s ruling when deciding whether or not to screen the programme. As TV3 pointed out, broadcasters are required to comply with the Broadcasting Act.” [Emphasis in capitals added].

When the same publication (e.g. The Ugly) comes before Mr Cartwright in the context of a BSA review complaint under the Broadcasting Act, he must consider the OFLC or Board classification as a “contextual matter” in his role as Chair of the BSA. The broadcaster as the BSA states [par. 33] must also take account of the OFLC or Board classification when deciding whether or not to screen a film which has been rated.

One of the “contextual matters” the BSA must therefore take account of in carrying out its statutory duty in ruling on complaints concerning the broadcast of “restricted publications” is the classification given to the film by the OFLC or the Board of Review under ss. 23, 55 & 55 of the FVPC Act.

With respect to The Ugly the Society complained to TV4 Network Services Ltd that the broadcaster had breached standard 1 (“Good Taste and Decency”) and standard 9 (“Children’s Interests”) in the Free-To-Air Television Code of Broadcasting Practice. In particular the Society argued that TV4 had breached guidelines 9a and 9c to standard 9.

Standard 9 states: “During children’s normally accepted viewing times broadcasters are required, in the preparation and presentation of programmes, to consider the interests of children.” Guideline 9a states: “Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30 pm – and avoid screening material which would disturb or alarm them. Guideline 9 c. states: “Broadcasters SHOULD have regard to the fact that children TEND TO STAY UP LATER THAN USUAL on Friday and Saturday nights AND DURING SCHOOL AND PUBLIC HOLIDAYS and, accordingly, SPECIAL ATTENTION SHOULD be given to providing appropriate warnings during these periods.” [Emphasis in capitals added. Note imperative “should”].

The Society pointed out that The Ugly had been classified as R18 by the OFLC and that every person commits an offence under s. 125 of the FVPC Act who “supplies, distributes, exhibits, displays, or otherwise deals with a restricted publication otherwise than in accordance with the classification assigned to that publication under this Act”. Every person or body corporate who commits such an offence is liable under s. 125(2) to a fine not exceeding $3000 and $10,000 respectively. These are “offences of strict liability”.

In the BSA’s determination with respect to The Ugly complaint is a landmark ruling as it establishes the logical nexus between the FVPC Act and the Broadcasting Act. Broadcasters must take into account the OFLC classifications when screening a “restricted publication”. They certainly have to when it comes to screening a publication that has been classified “objectionable” under the FVPC Act. By law they must apply to the Chief Censor for permission to screen any part of it or the uncut version of a restricted publication.

The OFLC and Board of Review have a statutory duty in determining classifications to consider the “impact of the medium in which the publication is presented” (s. 3[b]) and “any other relevant circumstances relating to the intended or likely use of the publication” (s.3[f]). Television is one of the mediums that must be taken account of as evidenced inn the recent decision of the Board with respect to the film “8 mile” featuring Eminem.

The Society’s complaint regarding The Ugly pointed out to the BSA and TV4 that according to parents 85% of children between the ages of 10 and 13 years of age are still watching TV after 8.30 pm – the so-called “watershed” time - on both Friday and Saturday nights during term time. (This data comes from the BSA’s own publication “The Younger Audience” [2001]). It follows then that tens of thousands of children in this age group were watching TV well after 8.30 pm during school holiday time when The Ugly screened. Furthermore, tens of thousands of young people in the age group 14 to 17 years of age could have easily accessed the film at this time.

The Society concluded that the broadcaster was socially irresponsible for having allowed this film with its graphic violence to screen at this time. It should have been screened later, if at all, and been subject to many more excisions to remove the horrific violence.

Following its complaint to the broadcaster, TV4 provided no evidence to the Society that it had made appropriate cuts to the film. Only in response to the Society’s complaint to the BSA did the broadcaster provide its evidence that 25 seconds had been cut from the film. However, as the Society pointed out that the high level of gratuitous violence screened between 9.30 pm and 10.15 pm was horrific and these cuts were an inadequate remedy. The BSA determination stated “some violent material in The Ugly tended to be horrific” [par. 37] and it “considered some of the scenes to be gruesome” [par. 34].

The Society considered the excisions made to be woefully inadequate as numerous scenes involving bloody throat cutting, adults inflicting brutal violence against kids, and sexual attacks pervaded the so-called cut-film.

The Society finds the BSA’s determination of its complaints regarding standard 9 – Children’s Interests – to be woefully inadequate and wrong in law. The BSA concluded:

“Moreover, the Authority does not accept that the film was screened during “children’s normally accepted viewing times”. Accordingly, it concludes that Standard 9 was not transgressed.”

The BSA failed to address the matters of the breach of guidelines 9a and 9c. The Society did not claim that the film was broadcast during “children’s normally accepted viewing times” as defined under the Act. Its point was that the Act recognises that these “times” do not apply to “school and public holidays” as “children tend to stay up later than usual” [9c] at these times and therefore broadcasters should “avoid screening material which would disturb or alarm them” [9a] when they are likely to be up beyond 8.30 pm.

The BSA took the view that “broadcasters are required to have regard to school holidays” but having noted that “the Code is not explicit as to what hour children may stay up …during school holidays” it “accepts that there is a time by which broadcasters are entitled to expect that parental responsibility is more important than broadcaster’s responsibility.” It concluded: “The Authority accepts that by 9.30pm, in most instances, parents and other care givers can be expected to take responsibility for children’s viewing in addition to a broadcaster’s overall responsibility to adhere to standards” [par. 36].

The BSA conveniently ignores the data showing that a large number of children aged 10 to 13 years of age and young persons aged 14 to 17 years are watching TV well after 9.30 pm. during school holiday times. It is an offence under the FVPC Act 1993 to “exhibit” The Ugly to anyone under 18 years of age. This “contextual matter” must be the starting point as the BSA concedes and the broadcaster was, in the Society’s view, socially irresponsible to allow this film to be screened at such an early time slot with so few excisions made.

In conclusion:

The BSA in its decision regarding The Ugly has again failed to take seriously the rights of children and young persons to be protected against exposure to film content that has been classified “objectionable” when made available to those under 18 years of age. It was not the intention of parliament as demonstrated in s. 3 of the FVPC Act to allow children and young person ready access to R18 material. The Act does not approach compliance in a haphazard manner allowing for children to view such material when theatre and cinema management applies loose standards of compliance. The offences of strict liability should apply to socially irresponsible broadcasters who fail to protect the interests of children and young persons.

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