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Hung: drawn and quartered

By Steven | May 23, 2011

The BSA’s decision on the Hung programme has been put to death by the High Court. (You might have thought this would be a judicial decision of public interest for the Courts of NZ website. Apparently not.)

My article with Claudia Geiringer about the BSA and the Bill of Rights is cited again, perhaps not so favourably this time. At least, that’s what I thought when I first read the decision… on second read, I think the judge buys into most of what we say.

What were the BSA decisions about?

A quick recap. The BSA had found, by majority, that a raunchy oral sex scene in the late-night TVNZ satire Hung breached standards of good taste and decency. It also found that a frisky scene in the TV3 Aussie soap Home and Away breached the same standard, and also the standards on children’s interests and responsible programming. The broadcasters joined forces to lodge appeals.

TVNZ won; TV3 lost.

Why did the TVNZ appeal succeed?

The successful ground of appeal wasn’t about the Bill of Rights. I think Claudia and I can take some credit for that. In our article, we criticised the BSA for its boilerplate consideration of the Bill of Rights. After that, the BSA started more methodically addressing Bill of Rights issues. That included the two decisions under appeal. If they had simply followed their old boilerplate approach, it’s pretty clear from the judge’s comments that the appeals would have succeeded on Bill of Rights grounds.

Anyway, the successful ground of appeal was that the BSA was “plainly wrong” in the way it characterised the narrative context of Hung. Here’s what the BSA said about the sex scene:

… the scene complained about was prolonged, explicit and gratuitous, leaving nothing to the imagination and designed solely for the purpose of shocking and titillating the audience.

But this was flat wrong, on a couple of counts. First, the scene showed a man with his head up a woman’s skirt. There was no mistaking what was going on, but there was almost nothing truely explicit. It came closer to leaving everything to the imagination.

But the judge seized on something more significant. This was not a gratuitous scene. It wasn’t included purely to titillate. Here’s the judge’s perceptive analysis:

Hung’s protagonist is a down and out former teacher who turns to providing sexual companionship to women for pay. Sex plays an inevitable part of  the narrative. No viewer could be surprised at a scene with some strong sexual content. The scene formed a natural part of the storyline both of the episode and the series. In its immediate context the scene shows a reversal of the traditional role where sexual exploitation is by men of women, and in a mildly humorous way. In terms of the initiation of sexual contact and payment traditional gender expectations are turned on their head. The themes of role reversal and the exploitation of a male for sexual purposes are reflected in the scene. It is the only sex scene in the particular episode. It demonstrates a modest victory for Lenore in her battle with Tanya for control of Ray. For Ray, it is another dollar. He performs a sexual service for a woman he does not like. It fits naturally into the episode’s storyline. It was not the case, as the majority decided, that the scene was designed “solely to titillate”.

That’s surely right. And it means the decision is fatally flawed.

So Hung is in the clear?

Does that mean the programme is not in breach of the standards? That’s not clear yet. The judge may yet refer it back to the BSA for another go – this time, better advised about the relevant law. Still, even if this happens, it would be a brave BSA which would re-take the decision that this breached the standards.

What about Home and Away?

The BSA made no such error there. Nor the judge say its approach was inconsistent with other decisions. He wasn’t prepared to examine whether the BSA had failed to properly consider its own research. He refused to accept evidence of other material that had screened in the same timeslot and was just as raunchy. He did feel that more fulsome reasons would have been useful, but didn’t find that the reasoning the BSA did provide was so sparse as to constitute an error of law.

What about the Bill of Rights?

The judge had quite a lot to say about how the Bill of Rights affects the BSA. He confirmed that when the BSA upholds a complaint, it must “articulate” why it believes the decision is demonstrably justified under s5, since it penalises expressive rights. He noted that the right to free speech includes the right to shock, offend or disturb. He properly recognised that the Supreme Court has said that the Bill of Rights doesn’t mandate any particular approach to s5, but that the BSA must conduct some analysis.

Julian Miles QC, drawing on our article, suggested that the analysis had to proceed like this:

… it was necessary in such an enquiry to consider the significance in a particular case of the NZBORA values, the importance of the public interest, the extent of the intrusion of the particular right, the limits sought to be placed on the application of the NZBORA provision, and the effectiveness of the intrusion in protecing the interests put forward to justify the limits…. the Authority did not carry out a full s5 analysis involving the exploration and evaluation of free speech values and conflicting legislative objectives, and a process for weighing up the strengths of the interests of each side.

The judge held that such a “detailed process of structured reasoning” was not required in every case. In fact, it wasn’t required in cases like this.

As the judge recognised (not all judges do), there are two aspects to the s5 “demonstable justification” question:

1. what process of reasoning must be followed?

2. how strong must the justification be?

In fact, there’s a third: at what point on either of these scales can the court on appeal intervene to say that the BSA has got it wrong? That is: how bad does the BSA’s Bill of Rights methodology need to be before the court will say the decision is wrong, and (separately), how much slack does a court cut the BSA before saying that the reasons it has advanced justifying the uphold are not sufficient in law to constitute a demonstrably justified limit on the broadcasters’ free speech rights?

The first question is about process; the second is about substance; the third is about (for want of a better word) deference by the courts to the decision-maker.

Methodology

The judge rightly said the courts shouldn’t be riding the BSA’s back about its methodology. Most of its members aren’t lawyers. There’s no public interest in elaborate, technical BSA decisions. Besides, if a decision is plainly demonstrably justified (eg upholding a complaint of inaccuracy against the broadcast of an allegation that the PM tortures kittens, which was based on a transparently biased and unreliable source and has been thoroughly disproved), then the courts have no business overturning it on Bill of Rights grounds merely because the BSA had technically not followed the correct methodology.

Still, the judge said, some degree of formal consideration of the Bill of Rights is required. He agreed with Claudia and I that boilerplate consideration is not good enough. “The Authority should, in its own reasoning, show transparently why it has reached the conclusion that the limitation is justified under s5, and not by reference to generic statements in other earlier decisions.”

Most importantly, more formalism (which I take to mean a more detailed and more closely structured reasoning process) is required where the expression concerned is more important: “the importance of the type of expression restrained will be relevant to the degree of formalism required in the s5 consideration”. What’s more, he suggests that more formalism will be required when the BSA proposes to impose a heavy penalty, such as taking the broadcaster off-air.

However, Home and Away only involved entertainment. It was towards the bottom of the hierarchy of important speech. Accordingly, less formal reasoning was needed. The BSA’s process was “sufficient”. Still, the judge said the BSA’s reasoning was “rather bare” and “it would have been helpful if they had been less conclusory and contained more reasons”:

I take into account that shorter reasons can be justified for a s 5 decision relating to a short sex scene, than might have been expected if a complaint concerning a significant political programme was being upheld.

What’s required is that the BSA carry out “the essential balancing exercise”, and in this case it was not required to “break that exercise down into a series of steps”. 

Substance

To some extent, the judge’s reasoning here overlaps with his methodology reasoning. But it seems clear enough that where speech is important, it’s not just more elaborate reasoning that’s required for a limit on speech to be considered demonstrably justifed. It’s more compelling reasons. It would be a nonsense if the BSA could impose a patently unjustified limitation on a broadcaster (eg ordering the broadcaster off-air for 24 hours for a story that inaccurately stated the margin of error in a particular political poll)… and then escape appeal because its reasoning was formally structured and detailed. That’s not the thrust of the judge’s decision.

The judge says that the BSA is required to evaluate – in every case, it seems – the significance of the speech. He cites Baroness Hale in the Naomi Campbell case, sketching out a hierarchy of different types of speech, some of which “are more deserving of protection in a democratic society than others”: political speech, then intellectual and educational speech, then artistic speech. The more important the speech is – in terms of serving society – the greater needs to be the justification for limiting it. This is now standard fare in the UK, and has been in the ECHR for decades. Our appeal judges have said similar things. The Home and Away programme was not terribly important in this scale but was not without redeeming merit, either:

I accept the submission for TVWorks that the programme reflects and explores issues that arise in modern society, including marital problems and sexuality, and in an Australian context that is relevant to New Zealand. But the scene cannot be said to be educative or informative, or the sexual part to reflect a central theme of the programme.

Thus a programme like that may be more readily restricted, though its social value must be considered in the balance. I  don’t think the BSA has been very good at this, even in its recent decisions. In fact, the judge’s reasoning about context, discussed above, can also be seen to reflect this failure to assess the value of the speech in Hung.

Once the value of the speech has been assessed, it must be weighed against the social benefit of the restriction. These days the BSA routinely identifies the aim of the standards it is considering, to help it work out whether the social gain from upholding the complaint outweighs the value of the speech. Sometimes it does this very well. The BSA’s description of the aim of the balance/controversial issues standard seems just right:

the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion

But sometimes the BSA does this less well, I think. It describes the children’s interests standard, for example, as protecting children against “unsuitable material.” But that’s an entirely circular definition. What’s “unsuitable”? Whatever the BSA thinks contravenes the childrens’ interests standard! In fact, a better description would be protecting children against material that might harm them or impair their development. I think that’s plainly what the standard is about. Characterising it that way allows a sensible assessment of whether, and to what extent, a particular programme threatens those interests – and whether and to what extent upholding a complaint will help serve them.

The judge didn’t explicitly say that. But he did say that the BSA’s reasoning was bare and conclusory. So perhaps he had that in mind. 

Error

On one point, I think the judge was flat wrong, and the BSA is right. The judge says the BSA should have rolled up its justification into a single exercise, and not conduct it standard-by-standard. After all, he says, there was only one complaint, and there’ll only be one order.

This is surely wrong. For one thing, there’s often more than one complaint, about different standards, and even a single complaint can raise issues under different standards. For another, the judge apparently approved of the way the BSA identified the aims of the various standards, and only wished the BSA could have provided more detailed reasoning about them.

Assessing the aim and justifiability of a restriction based on balance may be entirely different (and even reach a different conclusion) than assessing the aim and justifiability of a restriction based on inaccuracy. The essence of proportionatity is that the harm to a right is weighed against the gain to a competing policy objective. That exercise is very difficult to conduct in relation to multiple different objectives, all at the same time.

I’m not sure what the BSA can do with this dicta from the judge. But I think they should ignore it. No other judge has suggested it. It might be possible to roll this analysis together, but it will be messy and unprincipled; hard to write and hard to follow.

Deference

The judge quite properly indicates that the BSA are the experts here, and he won’t intervene to conduct his own balancing exercise. But the judgment does suggest that things might have been otherwise if the speech had been valuable and the methodology or substantive reasons insufficient…

Conclusion

Overall, this seems to me like a good decision that offers useful guidance to the BSA and other decision-makers whose decisions affect the exercise of rights. I doubt that it will be the last word. But Asher J is grappling with the principles much better than many others have (his decision in another recent Bill of Rights case, Commissioner of Police v Burgess, strikes me as spot on too). This case strikes me as a step in the right direction.

Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | 3 Comments »

3 Responses to “Hung: drawn and quartered”

  1. TVNZ Wins Vs. BSA Over Hung Sex Scene Says:
    May 26th, 2011 at 11:59 pm

    […] 26/05/2011: Here’s the judge’s perceptive analysis: Hung’s protagonist is a down and out former teacher who turns to providing sexual companionship […]

  2. jrg Says:
    June 9th, 2011 at 10:00 pm

    Ignorance of the law is no excuse.When it takes a Judge 70 pages to reach a conclusion, then i start to think may-be it is an excuse.In my view the deciding factors in this case are
    1 Was the scene complained about either Hard or Soft Porn (definitions of both the above can be viewed on Wikipedia)
    2 How many people laid a complaint to the BSA?
    After reading the above definitions,it would be very clear that most normal thinking people would say that the scene complained about falls into the soft porn basket.That being the case,end of story.It do’s not require 70 pages of interlectual flatulance to reach that conclusion.
    As regards 2 above I understand that there was only one complaint. Instead of wasting money on this type of issue the dosh could have been spent on some poor soul out there who really needs it

  3. Steven Says:
    June 10th, 2011 at 10:19 am

    Hmmm. So this was both obviously porn that should have been banned and also something that wasn’t worth bothering with.

    I’d be interested to know where exactly the law mentions “hard or soft porn”, when it was that Wikipedia became part of our legal system, and what gives courts the power to ignore appeals properly filed.

    As you say, ignorance of the law is no excuse.

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