Investigation Report N



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Investigation Report No. 2677


ACMA file reference

ACMA2011/1566


Licensee

Channel 9 South Australia Pty Ltd


Station

NWS, Adelaide


Type of Service

Commercial television broadcasting


Name of Program

Today


Date of Broadcast

28 June 2011


Relevant Legislation/Code

Broadcasting Services Act 1992

  • section 149 (1)

Commercial Television Industry Code of Practice 2010

  • clause 2.15 (Excerpts from certain feature films)

  • clause 7.11 (Time Limits on Responses to Code Complaints)

Findings

  • No breach of clause 2.15 (Excerpts from certain feature films) of the Commercial Television Industry Code of Practice 2010.

  • Breach of clause 7.11 (Time Limits on Responses to Code Complaints) of the Commercial Television Industry Code of Practice 2010.


The complaint

On 12 September 2011, the Australian Communications and Media Authority (the ACMA) received a written complaint, via email, about the Today program broadcast on 28 June 2011 by Channel 9 South Australia Pty Ltd, the licensee of NWS.

The complaint alleged that an excerpt from the film Horrible Bosses, broadcast during the entertainment segment of the program, contained a sex scene that was inappropriate for morning television.

The complainant made a written complaint to the licensee on 29 June 2011 regarding the film excerpt.

As the complainant did not receive a response from the licensee, the complainant forwarded the matter to the ACMA for investigation.

The program

Today is an Australian breakfast program broadcast weekdays from 5.30 am to 9.00 am, Saturdays from 7.00 am to 9.00 am on and Sundays from 7.00 am to 10.00 am.

Today is co-hosted by two presenters and supported by a regular team that provides news, sport, weather, entertainment and current affairs stories and information. Topics within the program include consumer affairs, health, politics, education, fashion and business.

The film excerpt for Horrible Bosses that is the subject of the complaint formed part of a regular ‘Entertainment News’ segment and was broadcast on 28 June 2011 at approximately 7.44 am.



Assessment

    The assessment is based on a copy of the relevant broadcast provided to the ACMA by the licensee as well as submissions from the complainant and the licensee.

Issue 1: Classification

Relevant Provisions

The Commercial Television Industry Code of Practice 2010 (the Code) contains the following provisions that are relevant in the matter raised by the complainant:



SECTION 2: CLASSIFICATION

[...]


Classification Zones

[...]


General (G) classification zones

2.8 The G classification zones are:

Weekdays 6.00am – 8.30am

4.00pm – 7.00pm



Weekends 6.00am – 10.00am

2.8.1 In G zones, only material classified G, C and P may be broadcast (though note limited exemptions in Clause 2.13.1 and 2.13.2).

[...]


Broadcasting of Material

[...]


2.15 Excerpts from certain feature films: Provided that they are suitable for the time of broadcast, excerpts from feature films classified MA (cinema or television), AV (television) or R18+ (cinema) may be broadcast in a news or current affairs program, in a film review program or a film review segment, in conjunction with an interview directed at a predominately adult audience, or in a program which deals in a responsible manner with serious moral or social issues.

[...]


Complainant’s submissions

In correspondence to the licensee, dated 29 June 2011, and to the ACMA, dated 12 September 2011, the complainant stated the following:

In the entertainment section on the 27th or the 28th June, a sex scene was shown for the new movie ‘Horrible Bosses’ involving Jennifer Aniston. My kids were watching and I do not think this was appropriate for morning television.

[...]


Licensee’s submissions

In correspondence to the ACMA dated 4 October 2011, the licensee stated the following:

[...]

We are of the view that the excerpt from the movie “Horrible Bosses” broadcast in the regular film review segment of The Today Show did not breach Clause 2.15 Excerpts from certain feature films of the Code.



On 4 October 2011, the licensee sent a written response to the complainant. A copy of the response was made available to the ACMA. The letter contained the following relevant submissions:

[...]


The Today Show contains news, current affairs, film reviews, information and entertainment. Its viewing audience is for general viewing but not for children under the age of 12 years.

The excerpt of this feature film showed a still frame of a photograph intimating sex as you described with Jennifer Anniston’s character claiming “this is my favourite”. The film review segment of the Today Show which is directed at the predominately adult audience the program attracts.

[...]

Finding

The ACMA is of the view that Channel 9 South Australia Pty Ltd in broadcasting a film excerpt within the Today program on 28 June 2011 during a G classification time zone complied with clause 2.15 (Excerpts from certain feature films) of the Commercial Television Industry Code of Practice 2010.



Reasons

Excerpts from certain feature films

Clause 2.15 of the Code provides that excerpts from certain films can be broadcast during a film review segment provided that they are suitable for the time of broadcast.

The Horrible Bosses excerpts were broadcast within an ‘Entertainment News’ segment on Tuesday 28 June 2011 at approximately 7.44 am.

The G classification time zone includes weekdays from 6.00 am to 8.30 am.

The Code provides that during a G classification zone, only material classified G, C and P may be broadcast.

The G requirements in Appendix 4: Television Classification Guidelines state that visual depictions of and verbal references to sexual activity must be brief, infrequent, contain little or no detail and be strictly limited to the storyline or program context.

The Horrible Bosses review runs for approximately 01:23 minutes and consists of a voiceover accompanied by scenes from the film and interviews with cast members.

The review begins by depicting several scenes from the film accompanied by the presenter’s voiceover which introduces the actors and their characters within the film. The presenter then introduces Jennifer Aniston’s character:

Jennifer Aniston who plays a dentist who’s also a sexual predator.

A cut is then made from a bar scene to a dentist’s surgery where Aniston’s character is depicted spraying a male assistant in his crotch with a dental water apparatus. The male’s crotch area is depicted soaked with water. As she sprays him she says:

I can make out our little friend right there.

The scene then cuts to an interview with the actress speaking about her role. While she is talking, the segment cuts to another scene from the film and her character is depicted wearing black underwear, while eating a frozen popsicle and banana.

After a series of still photographs of the actress and her boyfriend, there is more footage of the interview, followed by scenes from the film, an interview with the male cast members and more scenes from the film.

The second last excerpt from the film depicts Aniston’s character showing the male assistant a photo on her mobile phone. A close up of her phone screen is depicted which contains an image of the male leaning against her back. It is implied that the characters are naked. His face appears disorientated and his left eye is closed. Aniston’s eyes are closed and her mouth is open, as she poses for the camera. She is heard saying:

That’s my favourite.

The scene cuts back to her with the male assistant, who is staring in bewilderment at the phone.

The scene then cuts to the same male in a house, looking angry, He is heard saying:

I’m in, let’s kill this...

This scene cuts and brings the review to an end, and the presenter is heard discussing another entertainment story.

It is considered that the visual depiction of sexual activity within the film excerpt is very mild in impact. The scene in which Aniston’s character shows the male assistant a photo on her phone contains little detail and is brief in duration. One still image is depicted and it is unclear whether this image features sexual activity. It appears that the male has been set-up by his boss and was framed to appear within a sexual context.

The image focuses on the character’s faces and although nudity may be implied, the depiction is restrained due to the framing of the image and the limited detail.

The verbal reference to Aniston’s character being a ‘sexual predator’ is presented as a very brief character assessment and contains no further detail.

Impact is further mitigated by the humorous tone of the sequence, the light hearted music, the juxtaposition between scenes and interviews and the voiceover used to accompany the visuals.

The depiction appears justified within the context of a comedy film about three males who wish to kill their respective bosses due to their unfair treatment and harassment. The scenes involving Aniston’s character provide a humorous commentary about her character within the film.

The film excerpt is considered to meet the G classification requirement that visual or verbal reference to sexual activity must be brief, infrequent and contain little or no detail.

Issue 2: Complaint handling

Relevant Provisions

The Code contains the following provisions that are relevant in the matter raised by the complainant:



SECTION 7: HANDLING OF COMPLAINTS TO LICENSEES

[...]


Time Limits on Responses to Code Complaints

7.11 Subject to clause 7.15, a licensee must provide a substantive written response to a complaint that satisfies the requirements in clause 7.2.

[...]


Complainant’s submissions

In correspondence to the ACMA, dated 12 September 2011, the complainant stated that the licensee had not responded to the complaint.





Licensee’s submissions

In correspondence to the ACMA dated 4 October 2011, the licensee stated the following:

[...]

A check of the FreeTV Website located the complaint which had been missed and not picked up, the complaint sitting on the Website. To that end, following a previous missed complaint on the website, we have since changed our management of complaints from the FreeTV Website, picking them up daily instead of fortnightly as was our previous practice. This change occurred from 1 September 2011. As a consequence of this error, we have breached clause 7.1.1 [7.11] of the Code of Practice.



On 4 October 2011, the licensee sent a written response to the complainant. A copy of the response was made available to the ACMA. The letter contained the following relevant submissions:

[...]


Firstly, we apologise for not picking up your complaint from the Freetv Website, having received your complaint from the ACMA a check of the Website located your complaint which had been missed and not picked up.

Finding

    The ACMA is of the view that Channel 9 South Australia Pty Ltd breached clause 7.11 (Time Limits on Responses to Code Complaints) of the Commercial Television Industry Code of Practice 2010.

Reasons

    Clause 7.11 provides that a licensee must provide a substantive written response to a complaint.

    In correspondence to the ACMA dated 4 October 2011, NWS advised that the complaint had been missed and not picked up from the FreeTV Australia website and therefore a response had not been sent to the complainant. Accordingly, NWS has breached clause 7.11 of the Commercial Television Industry Code of Practice 2010.



Action taken

NWS has taken the following action to address the breach finding:



  • Amended its complaints handling process to ensure that complaints lodged through FreeTV Australia’s electronic lodgement system are collected daily; and

  • Provided the complainant with a response to the complaint lodged with FreeTV Australia on 29 June 2011, addressing the classification concerns, acknowledging its failure to provide a response to the complaint and outlining changes to its complaints handling procedures.

The ACMA considers that these actions address the compliance issues raised by the investigation and will continue to monitor the licensee’s performance in this regard.

ACMA Investigation Report – Today broadcast by NWS on 28 June 2011


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