Investigationreport no. BI-226
SummaryLicensee / General Television Corporation Proprietary Limited
Station / Nine
Type of service / Commercial—television
Date of broadcast / 28 August 2016
Relevant code / Commercial Television Industry Code of Practice 2015
Date finalised / 24 October 2016
Decision / No breach of clause 2.1.1 [classification]
No breach of clause 2.2.1 [PG classification zone]
No breach of clause 2.4.1(b) [special care requirements for non-program material]
Background
In September 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section170 of the Broadcasting Services Act 1992 (the BSA) intoa commercialfor the film Don’t Breathe, broadcast during The Block.
Thecommercial was broadcast on Nine by General Television Corporation Proprietary Limited (the licensee)on28 August 2016 at 7.33pm.
The ACMA received a complaint allegingthat the commercialfor the MA15+ classified filmDon’t Breathe, should not have been broadcast during a PG classified program.
The ACMA hasinvestigatedthe licensee’s compliance with clauses 2.1.1, 2.2.1 and 2.4.1of the Commercial Television Industry Code of Practice 2015 (the Code).
The program
The Block is a reality television series described as:
A series where reality meets renovation - The Block, hosted by Scott Cam, offers an around the clock view of what happens when you take determined couples, rundown apartments, give them equal-sized budgets and just weeks to out-design and out-renovate each other to see who becomes the ultimate winner and walks away with their prize.[1]
The PG classified episode of The Block, broadcast on 28 August 2016,commenced at 7.00pm and concluded at 8.31pm.
The commercial
Don’t Breathe is a crime/horror/thriller[2] film classified MA15+by the Australian Classification Board for cinematic release.[3] The film is described as:
A trio of reckless thieves breaks into the house of a wealthy blind man, thinking they’ll get away with the perfect heist. They’re wrong[4].
The commercial,broadcast during The Block, was 14 seconds long and contained 13 edited scenes from the film accompanied by audio comprising of a male voiceover and sound effects.
A frame-by-frame description of the images and audio is at Attachment A.
Assessmentand submissions
When assessing content, the ACMA considers the meaning conveyed by the material, including the natural, ordinary meaning of the language, context, tenor, tone, images and any inferences that may be drawn. This is assessed according to the understanding of an ‘ordinary reasonable’ viewer.
Australian courts have considered an ‘ordinary reasonable’ viewer to be:
A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.[5]
Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the Code.
The investigation takesinto account the complaint (at Attachment B) and submissions from the licensee (at Attachment C). Other sources are identified where relevant.
Issue:Classification
Relevant Code provisions
2.1 Classification – General rules
2.1.1Subject to the exceptions in 2.3, all Programs and non-Program material (including Program Promotions) must be:
a)classified in accordance with the criteria set out at Appendix 1; and
b)broadcast in accordance with the classification zones set out at section 2.2.
Note:For example, a Program Promotion for a Program which is classified M may be broadcast in a PG classification zone, provided that the content of the Program Promotion is classified PG (unless the special care rules at section 2.4 apply).
2.2 Classification zones
2.2.1PG Classification zone. Material that has been classified C, P, G or PG may be broadcast at any time.
2.4 Special care requirements for non-Program material
2.4.1Subject to clause 2.3.4, between the hours of:
a) 5.00am and 6.00am; and
b) 7.30pm and 8.30pm,
all non-Program material broadcast during Sports Programs, or Programs classified G or PG, must be no higher than a PG classification.
Appendix 1: Television Classification Guidelines
These Guidelines apply to all broadcast material required to be classified, except for Films (see clause 2.3.1).
Using these guidelines: essential principles
The suitability of material for broadcast will depend on the context, frequency and intensity of key elements such as violence, sexual behaviour, nudity and coarse language, and on the time of day at which it is broadcast. It will also depend on such factors as the merit of the production, the purpose of a sequence, the tone, the camera work, the relevance of the material, and the treatment; be it dramatic, comedic or documentary.
These factors must be all taken into account and carefully weighed. This means that some actions, depictions, themes, subject matter, treatments or language may meet current community standards of acceptability in one Program, but in another Program may require a higher classification, or be unsuitable for television. In other circumstances sequences that clearly depict comedy or slapstick behaviour may reduce the classification.
[…]
The Parental Guidance Recommended (PG) Classification
Material classified PG may contain adult themes or concepts but must be mild in impact and remain suitable for children to watch with supervision. All elements must be justified by context.
Violence: Depictions of violence must be inexplicit and restrained. More leeway is permitted when the depiction is stylised and/or unrealistic.
[…]
Themes: The treatment of social or domestic conflict and psychological themes should be carefully handled. Supernatural or mild horror themes may be included.
Finding
The licenseedid not breachclauses 2.1.1, 2.2.1 or 2.4.1 of the Code.
Reasons
The complainant raised concerns that the commercial was ‘not suitable’, because it was too ‘scary’, to be broadcast ‘during a family TV viewing time’.
The licensee submitted:
The sequences of the Commercial are filmed in shadows, and contain little visible action or violence. A sense of suspense is engaged through the voiceover and camerawork, but any perceived violence is suggested rather than real — with no actual depictions of violence included. Nine notes that the PG classification explicitly allows for treatment of psychological themes and mild horror themes.
In circumstances where the level of visual detail of violent activity is extremely low, the content of the Commercial is justified by the context of the Film which involves a narrative about thieves who decide to rob a man who becomes their aggressor and traps them in his home. Scenes in which the thieves are pursued and confronted by the man, are necessary to establish the premise of the Film.
The ACMA has considered whether the commercial was appropriately classified PG due to the material it contains and the way this materialhas been treated. It has then considered whether or not the commercial was broadcast in accordance with the classification zones and the special care requirements for non-program material set out in the Code.
Does the content of the commercial meet the PG classification criteria?
The visual elements of the commercial were made up of a series of edited and very short shots of scenes from the film. The images were shot in very low light and predominately depicted shadowy and dark silhouettes. The images were occasionally obscured by very large font text which replicated the voiceover.
The images were accompanied by audio which comprised of a male voiceover, sound effects and suspenseful music. The visual and audio elements combined to create tension resulting in a sense of menace and suspense. This was in keeping with the crime/horror/thriller genre of the film.
The classifiable elements in the commercial are violence and themes.
Violence
The commercial contained one very brief visual depiction ofa male creeping down some stairs holding a handgun. The backlit scene showed the male in silhouette. The image was obscured by large text that almost filled the screen and which stated ‘“SAVAGELY UNPREDICTABLE” – Daily Dead’. The scenewas approximately two seconds long and was accompanied by a male voice over.
Noviolence was depicted in the commercialand any references to violence weremitigated by the lack of visual detail. To the extent that the visual and verbal references implied violence, it was inexplicit, restrained, mild in impact and justified by the thriller context.
Themes
There were two very brief visual depictions of people expressing apparent fear or shock. The first was a medium shot of a couple running down a darkened corridor. The second was a very brief medium shot of a male and female standing outside at night with wide-eyed and fearful expressions. The female was covering her mouth accompanied by audio of a short muffled scream or gasp. Both of these depictions were one to two seconds long.
The ACMA notes that while the PG classification permits supernatural or mild horror themes, they must be mild in impact and remain suitable for children to watch with supervision. The combined sound effects and visual depictions conveyed a sense of threat or menace. However given the brevity of the shots and the lack of visual and other detail, the ACMA considers that the thematic material broadcast was mild in impact and remained suitable for children to watch with supervision.
Accordingly, the commercialcomplies with the PG classification criteria.
Was the commercial broadcast in the appropriate classification zone?
As set out in clause 2.2.1 of the Code, PG classified material may bebroadcast at any time. The Code also sets out special care requirements for non-program material in clause 2.4.1.
Clause 2.4.1 of the Codespecifies that between 7.30 pm and 8.30 pm, all non-program material broadcast during sports programs, or programs classified G or PG, must be no higher than a PG classification.
As the commercial complied with the PG classification criteria and was broadcast during a PG classified program, it complied with the Code classification zone requirements.
Accordingly, the licensee did not breach clauses 2.1.1, 2.2.1 and2.4.1 of the Code.
Attachment A
Images and transcript of the commercial for the MA15+ classified film Don’t Breathe, broadcast on Nine on 28 August 2016.
SCENE / ON SCREEN TEXT / AUDIOClose up of an elderly man’s eyes and nose.
No image. / THIS YEAR / VOICE OVER: This year comes a film top critics are calling…
Long shot of two shadowy figures walking towards a house at night time.
Medium shot of a darkened room. A maleis unlocking a door as a female stands next to him. The camera pans around to reveal the silhouette of a second male standing in a doorway. / MALE CHARACTER: ‘Who’s there?’
Shot from behind the second males head. The male and female looked shocked to see a second male. They take a step backwards.
Silhouette of a male holding a handgun as he creeps down a darkened flight of stairs. / “SAVAGELY UNPREDICTABLE” – DAILY DEAD / VOICE OVER: …savagely unpredictable.
Close up of a male and female running down a darkened corridor.
Male in a singlet body slamming himself against a door in a darkened room. The man’s face is obscured by shadows.
Medium shot of a male and female with their backs turned to the camera. They are seen to be standing at the top of a lit stairwell next to a closed door. / VOICE OVER: With Slashfilm calling it ‘required watching’.
Male and female both with torches turn to look at something off camera.
Close up of a person’s eye looking up, shot from above their head. / “REQUIRED WATCHING” - Slashfilm
Close up of a female with a torch turns around suddenly so her back is towards the camera.
Medium shot of a male and female with shocked/horrified looks on their faces. The female is covering her mouth with her hand. / FEMALE CHARACTER: (Muffled scream or gasp).
No image. / DON’T BREATHE / VOICE OVER:Don’t Breathe, in cinemas Thursday.
No image. / IN CINEMAS THURSDAY
At base of screen throughout:
MA15+ (classification symbol) Strong themes, violence and coarse language / DON’TBREATHE / IN CINEMEAS
THURSDAY
Attachment B
Complaint
Complaint to the ACMA dated 30 August 2016:
I have noticed that free television channels will screen commercials that most of my circle of friends agree is not suitable for children to see during family viewing time. The lastest [sic] example is that channel 9 screened a commercial for a scary movie during the block on Sunday. This commercial significantly upset my children aged 9 and 11. It upset my husband and I because it was screened during this time. Even though the screening time is PG, there is not enough time to change the channel when a short commercial that you are not expecting comes on. This commercial resulted in my child having a nightmare.
I disagree that the classification should allow this commercial to be screened during the block, or any timeslot that would involve children under the age of 15 watching tv.
[…]
Attachment C
Licensee’s response and submissions
Licensee response to the complainant dated 30 August 2016:
[…]
As we understand that your complaint also refers to the scheduling of the Advertisement, for which individual networks are responsible, we provide our response in relation to that matter below.
Clause 2.1.3 of the Commercial Television Industry Code of Practice 2015 (the Code) provides that: In relation to the classification of Commercials and Community Service Announcements, a Licensee may satisfy its obligations under subclause 2.1.1 (a) by obtaining the advice of a qualified third party.
This Advertisement has been classified J by the Commercial Advice Division (CAD) being an independent agency operated by Free TV Australia. Material classified J states:
Parental Guidance/Warning: May be broadcast at any time except during P and C programs or adjacent to P or C periods. Exercise care when placing in programs principally directed to children.
Nine wishes to assure you that it is acutely aware of the rules that apply in relation to the scheduling of commercial and other content. Nine’s traffic (scheduling) department is responsible for ensuring that all advertising scheduled is compliant with the Code. In order to resolve your complaint, Nine has confirmed with its traffic department that this Advertisement was placed during The Block, which is neither a P (Preschool) or C (Children) program, nor is it principally directed to children. The Advertisement was scheduled correctly in the appropriate time zone, being a PG time zone. We further note for your information that the broadcast time indicated in your complaint, being 7:00pm, is during a PG rated time zone. In accordance with the Code, J classified advertisements are permitted at that time in the PG rated time zone.
[...]
Licensee submission to the ACMA dated 22 September 2016:
[…]
Comments on compliance with clause 2.2 (classification zones):
- The Commercial was classified by Commercials Advice (CAD) in accordance with clause 2.1.3 ofthe Code as having a J classification.
- Nine scheduled the Commercial in accordance with the requirements attached to a Jclassification.
- The J classification is set out at Appendix 2 of the CAD Classification Handbook (the Handbook)which provides the commercial placement codes, and describes the J classification category as"Parental Guidance Recommended/Care in Placement". The Handbook provides that a Jclassified commercial "[m]ay be broadcast at any time of day, except during P and C programs oradjacent to P or C periods. Exercise care when placing in programs principally directed tochildren."
- Nine confirms that The Block is not a P or C classified program. Nor was the broadcast time of theCommercial, at 7.33pm, adjacent to a P or C period.
- The J Classification requires broadcasters to exercise care when placing J classified content inprograms principally directed to children. The Block is not a program principally directed tochildren. In this regard, Nine notes that the proportion of people aged 0-15 viewing The Block on28 August 2016 was 11% of the total audience' (noting that this includes people aged 15 who arenot children for the purposes of the Code, and is likely to overestimate the child audience).
- The J classification represents a 'strong PG' classification, and is distinct from the P classification,which is ascribed to the general PG rating. The Handbook provides that P rated commercialscomply with the PG classification criteria in Appendix 1 of the Code and contain carefulpresentations of adult themes or concepts which are mild in impact and remain suitable forchildren to watch with supervision. P classified commercials may be broadcast at any time of day,except during P and C programs or adjacent to P or C periods.
- Accordingly, the J classification accommodates stronger content than P, and is to be scheduled ina more limited range of programs compared with P classified commercials. Nine staff accustomedto dealing with the commercial placement codes in the CAD Handbook refer to the J classificationas "PG with care". The J classification ascribes content which is of greater impact than generalPG material, but still containable within the PG classification.
- The Commercial is for the MA15+ rated film Don't Breathe (the Film). The Film itself has beenclassified according to the film classification system administered by the Classification Board,however, under the Code, the Commercial is to be classified on the basis of its content andaccording to the television classification guidelines set out in Appendix 1.
- The sequences of the Commercial are filmed in shadows, and contain little visible action orviolence. A sense of suspense is engaged through the voiceover and camerawork, but anyperceived violence is suggested rather than real — with no actual depictions of violence included.Nine notes that the PG classification explicitly allows for treatment of psychological themes andmild horror themes.
- In circumstances where the level of visual detail of violent activity is extremely low, the content ofthe Commercial is justified by the context of the Film which involves a narrative about thieves whodecide to rob a man who becomes their aggressor and traps them in his home. Scenes in whichthe thieves are pursued and confronted by the man, are necessary to establish the premise of theFilm.
- Nine is also aware that there were a number of other M classified versions of commercials for theFilm, which ran at other times. It is possible that viewers may have seen them, and mistakenlybelieved that they were the same as the J classified version they recalled having been broadcastduring The Block.
- In light of the above, Nine maintains that the Commercial meets the PG classification criteria ofthe television classification guidelines set out in Appendix 1 of the Code.
Compliance with the Special Care requirements for non-Program Material: