Investigation Report No. BI-216
SummaryBroadcaster / Australian Broadcasting Corporation
Station / ABC
Type of service / National broadcastingtelevision
Name of program / Luke Warm Sex
Dates of broadcast / 16 March 2016
6 April 2016
Relevant code / ABC Code of Practice 2011 (revised in 2016)
Date Finalised / 20 September 2016
Decision / No breach of Standard 7.1 [harm and offence]
No breach of Standard 7.2 [warnings or advice]
No breach of Standard 7.3 [classification]
No breach of Standard 7.6 [mitigate risks]
No breach of Standard 8.4 [minimise risks to children]
Background
In July 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 151 of the Broadcasting Services Act 1992 into two episodes ofLuke Warm Sex,broadcast on ABC by the Australian Broadcasting Corporation (the ABC) on 16 March and 6 April 2016.
The complainant alleged that:
the episode ‘Fear of Being Nude’ contained nudity
the episode ‘It’s a Pleasure to Meet You’ contained sex scenes
inappropriate for broadcast.
The ACMA has investigated the ABC’s compliance with Standards 7.1, 7.2, 7.3, 7.6 and 8.4 of the ABC Code of Practice 2011(revised in 2016)(theCode).
The program
Luke Warm Sexis a comedydocumentary series, described on the ABC television website as:
This series is a crash course in great sex. Each week Luke McGregor takes on a new challenge with the help of therapists, sex coaches & scientists, proving if someone as anxious as Luke can get better at sex, then anyone can![1]
‘Fear of Being Nude’ was broadcast on 16 March 2016 at 9.00 pm and was classified by the ABC as M. The ABC submitted the following synopsis:
'Fear of Being Nude' was specifically about Luke McGregor's anxietyabout being naked in front of others. The premise of the episode was to show how Luke could build up his body confidence.
‘It’s a Pleasure to Meet You’ was broadcast on 6 April 2016 at 9.00 pm and was classified by the ABC as MA15+. The ABC submitted the following synopsis:
'It's a Pleasure to Meet You', was about giving and receiving pleasure. In the episode Luke learns about his own sexual organs and those of others. He undertakes workshops in masturbation, oral sex and clitoral stimulation.
Assessment and 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’ listener or viewer.
Australian courts have considered an ‘ordinary reasonable’ listener or 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.[2]
Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the Code.
This investigation has taken into account the complaints (at Attachment A) and submissions from the broadcaster (at Attachment B). Other sources are identified as relevant.
Issue 1: Harm and offence
Relevant Code provisions
Standards:
7.1Content that is likely to cause harm or offence must be justified by the editorial context.
7.2Where content is likely to cause harm or offence, having regard to the context, make reasonable efforts to provide information about the nature of the content through the use of classification labels or other warnings or advice.
7.3Ensure all domestic television programs – with the exception of news, current affairs and sporting events – are classified and scheduled for broadcast in accordance with the ABC’s Associated Standard on Television Program Classification.
[…]
7.6Where there is editorial justification for content which may lead to dangerous imitation or exacerbate serious threats to individual or public health, safety or welfare, take appropriate steps to mitigate those risks, particularly by taking care with how content is expressed or presented.
The ACMA also takes account of the relevant Principles set out in the Code:
The ABC broadcasts comprehensive and innovative content that aims to inform, entertain and educate diverse audiences. This involves a willingness to take risks, invent and experiment with new ideas. It can result in challenging content which may offend some of the audience some of the time. But it also contributes to diversity of content in the media and to fulfilling the ABC’s function to encourage and promote the musical, dramatic and other performing arts. The ABC acknowledges that a public broadcaster should never gratuitously harm or offend and accordingly any content which is likely to harm or offend must have a clear editorial purpose.
The ABC potentially reaches the whole community, so it must take into account community standards. However, the community recognises that what is and is not acceptable in ABC content largely depends upon the particular context, including the nature of the content, its target audience, and any signposting that equips audiences to make informed choices about what they see, hear or read. Applying the harm and offence standard, therefore, requires careful judgement. What may be inappropriate and unacceptable in one context may be appropriate and acceptable in another. Coarse language, disturbing images or unconventional situations may form a legitimate part of reportage, debate, documentaries or a humorous, satirical, dramatic or other artistic work.
With respect to Standard 7.3, the ABC has released the Associated Standard: Television Program Classification and Principles:
[…]
The guiding principle in the application of the following classifications is context. What is inappropriate and unacceptable in one context may be appropriate and acceptable in another. Factors to be taken into account include: the artistic or educational merit of the production, the purpose of a sequence, the tone, the camera work, the intensity and relevance of the material, the treatment, and the intended audience.
Standards
7.3.1 Television Classifications
[…]
M – MATURE
(Recommended for people aged 15 years and over)
Subject to the Implementation Guidelines at 7.3.2, M programs may be shown in accordance with the Time Zone Charts at 7.3.5.
The M category is recommended for people aged over 15 years. Programs classified M contain material that is considered to be potentially harmful or disturbing to those under 15 years. Depictions and references to classifiable elements may contain detail. While most themes may be dealt with, the degree of explicitness and intensity of treatment will determine what can be accommodated in the M category – the less explicit or less intense material will be included in the M classification and the more explicit or more intense material, especially violent material, will be included in the MA15+ classification.
[…]
Nudity: Nudity outside of a sexual context may be shown but depictions that contain any detail should not be gratuitous.
[…]
Themes: Most themes can be dealt with, but the treatment should be discreet and the impact should not be strong.
[…]
MA15+ – MATUREAUDIENCE
(Not suitable for people under 15 years)
Subject to the Implementation Guidelines at 7.3.2, MA15+ programs may be shown in accordance with the Time Zone Charts at 7.3.5.
MA15+ programs, because of the matter they contain or because of the way it is treated, are not suitable for people aged under 15 years.
Material classified MA15+ deals with issues or contains depictions which require a more mature perspective. This is because the impact of individual elements or a combination of elements is considered likely to be harmful or disturbing to viewers under 15 years of age. While most themes may be dealt with, the degree of explicitness and intensity of treatment will determine what can be accommodated in the MA15+ category – the more explicit or more intense material, especially violent material, will be included in the MA15+ classification and the less explicit or less intense material will be included in the M classification.
Themes: The treatment of themes with a high degree of intensity should not be gratuitous.
[…]
Sex: Sexual activity may be implied.
Depictions of nudity in a sexual context which contain detail should not be exploitative.
Verbal references may be more detailed than depictions, if this does not increase the impact.
[…]
Finding
The broadcaster did not breach Standards 7.1, 7.2, 7.3 or 7.6 of the Code.
Reasons
16 March 2016 broadcast: ‘Fear of Being Nude’
The complaint to the ABC was that:
The program is inappropriate for television as it has showed full frontal nudity (e.g. scenes at the nudist club) and explicit themes.
The ABC submitted:
The episode was classified M to indicate to viewers that the program was intended for a mature audience, along with the specific consumer advice warnings for adult themes, nudity and sexual references. We consider this warning, along with the signposting of the program as being about Luke McGregor's fear of being nude and his intention to become more comfortable with his naked body, provided sufficient information to view[er]s about the nature of the program in keeping with standard 7.2.
During the broadcast, Mr McGregor visited the home of a naturist to help overcome his fear of being nude. Some depictions of full frontal nudity of adults were visible in the following scenes:
At 20.36 minutes,anaked man opened his front door and greeted Mr McGregor who was fully clothed. They went upstairs where Mr McGregor was introduced to another naked man and two naked women. There were no close ups of the naked peoples’ bodies. For significant parts of the scene, full frontal nudity was not visible, as the camera focused on the faces and upper bodies of the people as they talked. The mood of the scene was relaxed, with the naked people welcoming Mr McGregor andexplaining their interest in naturism.
At 24.40 minutes, Mr McGregor, having removed his clothes, joined the naked men and womento play snooker. There were no close ups of the naked peoples’ bodies and the mood of the scene was again relaxed.
At 25:57 minutes,Mr McGregor addressed the camera while nakedbut with his genitals obscured by a digital graphic.
At 26:15 minutes, the naked men and women were filmed from a long distance,talking as a groupin an outdoor setting. Foliage covered part of the screen, obscuring the view.The scene was then filmed at closer range, mostly above waist height.
At 27:07 minutes, the group of naturists and Mr McGregor played tennis while naked. The scene was filmed in medium to long distance reducing the detail visible to viewers. The two players closer to the camera were viewed from behind.
At 28:50 minutes,Mr McGregor gave a stand-up comedy routine to the group.The audience was seated, with their legs crossed and arms folded across their torsos. Mr McGregor’s genitals wereobscured by a digital graphic.
The nudity in each of these scenes was not sexualised.The participants clearly consented to being filmed and were comfortable with their state of undress.
Compliance with Standard 7.1 [harm and offence – justified by editorial context]
To assess compliance with Standard 7.1, the ACMA asks the following questions:
1.Does the material have the intrinsic capacity to be likely to cause harm or offence?
If it has no capacity to be likely to cause harm or offence, then the matter ends there. But if the answer to question 1 is ‘yes’, then the following further questions arise:
2.What factors are there moderating any harm or offence?
3.What is the editorial context?
4. Does the editorial context justify the likely harm or offence?
- Does the material have the intrinsic capacity to be likely to cause harm or offence?
The ACMA considers thatdepictions of nudity and themes related to sex have some intrinsic capacity to cause offence to some viewers. As the answer to this question is ‘yes’, the ACMA then asks the following further questions.
- What factors are there moderating any harm or offence?
Any harm and offence that may have been caused was moderated within the episode by a warning provided by Mr McGregor prior to the initial depiction of nudity. He stated that he was about to visit the naturists, where people would be naked and that he also would be naked.
The naturists were depicted conversing and interacting with Mr McGregor and each other in a mature and relaxed manner while doing everyday activities. There was no sexual activity depicted or implied in the scenes involving the naturists, and at no point did anyone refer to sexual activity. There was no focus on the sexual organs of the naturists and they did not adopt any sexualised poses.
The shots depicting nudity were often separated by shots of no or only partial nudity. For example, when Mr McGregor or a naturist addressed the cameraor were filmed providing their views, the shot often depicted their head and shoulders only. At other times, the naturists were shown standing behind a piece of furniture or in some other pose that obscured their genitals.
Overall, the tone of these scenes was light-hearted and friendly and none of the participants was presented in a demeaning or exploitative manner. The naturists were presented as adults who wished to discussand explain a shared interest in a mature manner. Despite the light-hearted tone of the program, it addressed a serious issue about body anxiety and helped to show that these anxieties can be overcome.
Any harm and offencewasmitigated by the M classification of the episode (meaning it is recommended for people over 15) and the provision of consumer advice warning for adult themes, nudity and sexual references (discussed below).
- What is the editorial context?
As noted above, Luke Warm Sexwas a television comedydocumentary series that followed Mr McGregor’s efforts to become better at sex by confronting and addressing his own anxieties.
Each episode had a specific theme, with Mr McGregor explaining the premiseand his desired outcomes to the viewer at the start of the episode. ‘Fear of Being Nude’ followedMr McGregor’s attempt to overcome his fear of being naked, particularly with other people.The episode followedMr McGregor as he participatedin a number of activities intended to help him achieve this goal.
- Does the editorial context justify the likely harm or offence?
The Principles (set out above) note that what ABC content is acceptable to the community depends on the nature of the content, its target audience and any signposting that is provided. Any content which is likely to harm or offend should have a clear editorial purpose.
The content in this episode focused ongaining body confidence. It was classified M and was signposted by appropriate consumer advice and warnings.
The section of the program containing nudity portrayed Mr McGregor’s desire to overcome his fear of nudity by briefly visiting with and experiencing a ‘naturist’ lifestyle. Following these scenes, Mr McGregor addressed the camera and reflected on what he had learnt from the experience and how it helped him tounderstand and potentially overcome his stated fear of being nude.
In the context of the clearly stated intent of the episode and the overall themes of the Luke Warm Sex series,i.e. sex education, body confidence and wellbeing targeted to a mature audience, the ACMA considers that the depictions of nudity wereeditorially justified.
The program, therefore, complied with the requirements of Standard 7.1.
Compliance with Standard 7.2 [harm and offence – provide classification labels]
Standard 7.2 requires that viewers are provided with information about content they might find offensive ‘through the use of classification labels or other warnings or advice’.
Visual and audio consumer advice was provided to the viewer at the beginning of the program. This advice stated the program was classified M for ‘viewing by mature audiences’ and contained ‘adult themes’, ‘nudity’ and ‘sexual references’. The ACMA considers that reasonable efforts were made to provide information about content likely to cause offence.
The program, therefore, complied with the requirements of Standard 7.2.
Compliance with Standard 7.3 [appropriate classification]
Standard 7.3 requires that domestic television programs are classified and scheduled in accordance with the ABC’s Associated Standard on Television Program Classification.
This episode of Luke Warm Sex was classified M. At the M classification level, nudity outside of a sexual context may be shown but depictions that contain any detail should not be gratuitous. The treatment of themes should be discreet and the impact should not be strong.
The ACMA considers that the scenescontaining nudity were able to be accommodated within the M classification level because the nudity depicted in the episode wasnot of a sexual nature. Further, the nudity that contained detail in the episode was not presented in a gratuitous manner. It was presented in the context of the culmination of Mr McGregor’s efforts to overcome his fear of being nude. The camera did not linger or focus on the genitals of any of thenaked people and the depictions were not presented in a demeaning or exploitative manner.