Investigation Report No. 2696

Investigation Report No. 2696

ACMA file reference / ACMA2011/1691
Licensee / Regional Television Pty Limited
Station / TNQ, Regional Queensland
Type of Service / Commercial television broadcasting
Name of Program / The Sweetest Thing
Date of Broadcast / 29 July 2011
Relevant Legislation/Code / Broadcasting Services Act 1992

• Section 148

Commercial Television Industry Code of Practice 2010

• clause 2.3 (classification of films)

Investigation conclusion

Regional Television Pty Limited, the licensee of TNQ:

• did not breach clause 2.3 (classification of films) of the Commercial Television Industry Code of Practice 2010.

The complaint

On 10 October 2011, the Australian Communications and Media Authority (the ACMA) received a written complaint about the film The Sweetest Thing which was broadcast by Regional Television Pty Ltd, the licensee of TNQ, on 29 July 2011.

The complaint alleged that the film contained scenes that exceeded the M classification.

Not satisfied with the response provided by the licensee, the complainant forwarded the matter to the ACMA for investigation. The complainant raised additional matters in his complaint to the ACMA, however, this investigation is limited to the complaint as lodged with the licensee.

The program

The Sweetest Thing is a romantic comedy, originally released in 2002, with the following plot:

A girl finds she is forced to educate herself on the etiquette of wooing the opposite sex when she finally meets Mr. Right.[1]

The film was classified by the Classification Board as MA15+ on 25 June 2002, with ‘Sexual references’ as the consumer advice.

The Board’s report stated:

In the Board’s majority opinion the cumulative impact of the verbal and visual sexual references are such that they require restriction for those under 15 years of age as they are not discreet nor low in impact and are likely to be harmful or disturbing to viewers under 15 years of age.

Assessment

The assessment is based on submissions from the complainant and the licensee, a copy of the relevant broadcast provided to the ACMA by the licensee and a copy of the Classification Board report.

Relevant Provisions

The Broadcasting Services Act 1992(the Act) contains the following provisions that are relevant in the matter raised by the complainant:

Part 11 – Complaints to the ACMA

Division 1 – Complaints relating to action under licences and class licences

148 Complaints under codes of practice

If:

(a)a person has made a complaint to a provider of broadcasting
serviceson a matter relating to:

(i)program content; or

(ii)compliance with a code of practice that applies to those services and that is included in the Register of codes of practice; and

(b)if there is a relevant code of practice relating to the handling of complaints of that kind--the complaint was made in accordance with that code of practice; and

(c)either:

(i)the person has not received a response within 60 days after making the complaint; or

(ii)the person has received a response within that period but considers that response to be inadequate;

the person may make a complaint to the ACMA about the matter.

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

SECTION 2: CLASSIFICATION

[...]

2.3. Films: are classified according to the National Classification Board Guidelines.

2.3.1 Films may be modified by a licensee in accordance with the National Classification Board Guidelines to ensure that they are suitable for broadcast or for broadcast at particular times.

[...]

Guidelines for the Classification of Films and Computer Games

M – Mature

Impact test
The Impact of the classifiable elements for material classified M should be no higher than moderate.

Classifiable elements

[...]

Sex

Sexual activity should be discreetly implied, if justified by context.

[...]

Nudity

Nudity should be justified by context.

Complainant’s submissions

In correspondence to TNQ, the complainant stated the following:

[…]

Scenes depicting oral sex in obscene detail followed by close-up shots of the female participating gagging and with her eyes rolling were not funny but simply and plainly over-the-top obscenity.

Another scene of a Children’s Show host dressed in a fluffy elephant suit having sex was equally offensive and would have sent very mixed messages to any young person unfortunate enough to be viewing.

Equally so, the squalid scene in a laundrette where one of the actors was attempting to clean semen from the front of her dress – and in front of children. How on earth can you condone using little children to turn such filth into comedy?

Although I chose not to watch the whole movie I found it insidious and out of context. It shows a marked disrespect to both women and children and to the family unit.

It is not good enough to say, “turn the T.V. off” when programs are being broadcast when they should have been pre-determined as unsuitable for family viewing. The time chosen to air this film was 9.00pm on a Friday evening. A time when families who have neither school nor work the next day, would be settling down together to watch a movie.

[…]

In correspondence to the ACMA, the complainant stated:

• the film does not comply with the Code;
• it should not be classified M due to the ‘graphic detail of certain scenes and the out of context explicit humour’;
• there was no ambiguity or confusion in the laundrette scene, the sexual activity ‘is not implied’ and the use of children in the scene is ‘out of context in an adult and sexual setting’;
• the scene with the man dressed in an animal costume is disturbing and ‘clearly sending out of context mixed messages’. This scene depicts the man engaged in ‘highly visual and verbal sex against a wall’ and is ‘explicit and graphic’ and cannot be seen as ‘implied or simulated in a restrained way’;
• the most disturbing scene ‘was the scene where a girl has a penis stuck down her throat […] In this scene a man is lying back naked on a bed – legs spread open – kneeling between his legs is a girl performing oral sex. Apparently he has a piercing in his penis that has become stuck behind the girls tonsils – the supposed joke is that he can not remove his penis from her throat.’;
• the licensee cannot claim that ‘this sort of pornography is not detailed’ as the oral sex scene is ‘graphic and explicit’; and
• the film’s messages regarding promiscuity are of concern, particularly as it seems to be directed at teenage girls and the fact that a character is dressed in an animal costume is sending mixed messages to children and a concerning message to paedophiles.

Licensee’s submissions

On 15 August 2011, the licensee submitted to the complainant that:

The Sweetest Thing is a US comedy romance film about a girl forced to educate herself on the etiquette of wooing the opposite sex and is classified M (Mature). The M classification recommends viewing only by persons aged 15 years or over and the period from 8.30pm to 5.00am is allocated by the Code to material classified M. The Sweetest Thing was broadcast Friday 29 July 2011 at the later time of 9:00pm.

In addition to the classification, the Movie also carried spoken and on-screen consumer advice that the program contained ‘some coarse language’, ‘sexual references’ and ‘adult themes’. Classification and consumer advice is provided so that people may make informed viewing decisions for both themselves and those in their care.

The Movie was viewed by experienced classification staff prior to its broadcast, to ensure it was suitable for broadcast during M classification time zones.

Visual depiction of intimate sexual activity may only be implied or simulated in a restrained way during programs classified M and it must be justifiedby the story line or program context. Verbal references to sexual activity should not be detailed. Visual depiction of nudity is permitted, however it must be justified by the story line or program context, and must not be detailed if in a sexual context.

[…] our assessment is that sexual references and sexual activity to which you refer, is not detailed or used aggressively. The impact of these sequences is also mitigated by the comedic treatment and is justified by the program context. We consider the program complied with the requirements of the M classification and was suitable for broadcast at 9.00pm. As mentioned above, the M classification recommends viewing only by mature viewers or persons aged 15 years or over.

We understand that material of this nature may not be to the taste of all viewers. A program’s suitability for broadcast is judged against an array of classifiable elements, some categories of which include violence, sex and nudity, and coarse language. Assessing the impact of material requires considering not only the treatment of the individual classifiable elements but also their cumulative effect. The purpose and tone of the material is a further consideration.

[…]

On 31 October 2011, the licensee submitted to the ACMA that:

[...]

Ten's classification staff carefully examined the film, The Sweetest Thing, prior to broadcasting the film to ensure that the film complied with the provisions of the Code, and was suitable for the time of broadcast.

Ten edited certain scenes of the film to reduce the impact and sexual detail of those scenes. Ten then allocated the film an, “M” classification, and provided corresponding consumer advice of "Some Coarse Language, Sexual References, Adult Themes".

The Guidelines for the Classification of Films and Computer Games, which apply to the classification of Films broadcast on television (and are expressly incorporated into the Code) provide that in material classified “M”, “sexual activity should be discreetly implied, if justified by context".

[…]

The complainant described a few specific scenes in the film which the complainant found objectionable. We will set out below a response in relation to each of the scenes referenced (to explain how such scene fell within the “M” classification).

1. “…Scenes depicting oral sex in obscene detail followed by close-up shots of the female participant gagging and with her eyes rolling were not funny but simply and plainly over-the-top obscenity…”

The scene in which a woman has become caught on a man's piercing during implied oral sex is a humourous scene. The man is still partially dressed in a shirt, and the woman, wearing underwear, leans over his lap. Oral sex is discreetly implied. However very little information is actually shown on-screen. The Board's report about this scene noted that "there is no detail shown of the actual point of contact".
Ten made one edit to this scene to ensure that the scene fit within the “M” classification. The remainder of the scene does not contain any sexual activity; it depicts various people, including paramedics, neighbours and flatmates trying to solve the problem.

1. “…Another scene of a Children’s Show host dressed in a fluffy elephant suit having sex was equally offensive and would have sent very mixed messages to any young person unfortunate enough to be viewing…”

The scene in which the man in an elephant suit has implied sex with a friend in a clothing store is not"explicit and graphic" as the complainant stated in his original complaint letter. The characters are shown from above-waist only, and both remain clothed throughout the scene. We note that the “M” classification permits some nudity (if it is justified by context). However there is no nudity in this scene anyway. […]

1. “…Equally so, the squalid scene in a laundrette where one of the actors was attempting to clean semen from the front of her dress – and in front of children. How on earth can you condone using little children to turn such filth into comedy?...”
   

The scene the complainant refers to here does not contain any depiction of sexual activity. In this scene a young woman takes a dress to the dry cleaner. In the previous scene her friends indicate that the stain on the dress is a sperm stain. However the reference to sperm is merely implied; the word itself is not actually used. The woman hopes to leave the dress at the counter but the dry cleaner, who is a family friend, sees her and insists on talking to her. The dry cleaner notices the spot, which only appears as a smudge on the dress, and for the rest of the scene attempts to work out what the stain might be. The humour in the scene is derived from the young woman trying to avoid answering any uncomfortable questions. The arrival of some school children, and then a former school teacher, followed by the parish priest all add to the woman’s embarrassment. She gets out of there without needing to explain any further detail.

We do not consider that this scene exceeded the “M” classification as the scene did not even contain any verbal reference to sexual activity. Any sexual activity implied through the scene was discrete and mild in impact.[…]

Overall we consider that, with the edits Ten made to thefilm, the film was appropriately accommodated at the “M” classification. This is because the film contained no detailed sex scenes, no onscreen nudity and only occasional use ofcoarse language. The film could fairly be described as a relatively juvenile “sex comedy”; much of the comedy being slapstick.

[…]

Finding

The ACMA finds thatRegional Television Pty Limited complied with clause 2.3 of the Commercial Television Industry Code of Practice 2010in broadcasting the film The Sweetest Thing on 29 July 2011 classified M with consumer advice for ‘some coarse language’, ‘sexual references’ and ‘adult themes’.

Reasons

The Sweetest Thing was classified MA15+ by the Classification Board in 2002, however, consideration must be given to the modifications made by Network Ten’s classifiers in order to determine whether the film was appropriately classified as M when broadcast by TNQ on 29 July 2011.

The complainant has outlined concerns with three scenes and these will be considered below:

Dry cleaner scene

At approximately 25:13 minutes, the character Jane tries to drop a dress off at the dry cleaner and leave quickly, without talking to the dry cleaner. The preceding scene has established that the dress has a semen stain. However, as the dry cleaner appears behind the counter and greets Jane, her distress is evident as he goes on to quiz her about the stain. The arrival first of a school group accompanied by her former third grade teacher and then her parish priest add to her distress. The dry cleaner is seen trying to determine the nature of the stain, however, he is unable to do so and Jane is clearly reluctant toprovide an explanation. As such, the scene does not contain any sexual activity and, given Jane’s reluctance to discuss the stain, the implied sexual reference is mild and can be accommodated at the M classification. The sexual references are ambiguous enough, such that an older audience would understand the references whilst a younger audience would not.

The complainant has expressed concern about the children in the scene, however given the above,this does not impact on the licensee’s compliance with clause 2.3 of the Code.

The preceding scene, where Jane’s friends tease her about the stain, includes dialogue with sexual references e.g. ‘you slut’, ‘can you help me with my jiz’ and ‘[…] you suck’. The exchange between Jane and her friends makes reference to sexual activity, however, the verbal references are mild and the impact is further minimised by the playful and teasing nature of the exchange.

Elephant costume scene

At approximately 47:05 minutes, the character Jane is busy at work when she is confronted by someone dressed in an elephant costume. It is soon established that the person in the costume is the man she is dating and that he is dressed in the costume as he works in a children’s hospital.

The next scene is unrelated and features Christina and Courtney. At approximately 48:42 minutes, there is a brief shot of Jane and her boyfriend – he appears to be holding her upright and she is bouncing up and down. Only the torsos of the two actors are visible, although Jane’s knees occasionally appear. There is no nudity. Jane states:

I can’t believe I am fuckin’ a purple elephant.

The next scene features Jane’s boss and a co-worker. The co-worker is sent to look for Jane and, as she reaches upstairs, Jane is seen falling backward as her boyfriend is heard exclaiming ‘Janey-waney!’.

The visuals and the verbal reference imply sexual activity. However, there are a number of factors which serve to minimise the impact of the references: the editing and, in particular, the fact that the scenes featuring Jane and her boyfriend are interspersed with scenes featuring her co-workers, there is no nudity asJane and her boyfriend remain fully clothed, the shots featuring Jane and her boyfriend show only their torsos, there is only one verbal reference to sexual activity and the scenes featuring Jane and her boyfriend are brief. As such, the scene can be accommodated at the M classification.