Investigation Report No. 2535
File No. / ACMA2010/2459Licensee / Australian Broadcasting Corporation
Station / ABC2
Type of Service / National Broadcasting Service
Name of Program / Criminal Justice
Dates of Broadcast / 31 August 2010
7 September 2010
14 September 2010
28 September 2010
Relevant Legislation & Code / Broadcasting Services Act 1992, section 151
ABC Code of Practice 2007
Clause 6.2 (Classification of television programs)
Clause 6.5 (Consumer advice)
Clause 7.2 (Complaints handling)
Finding
· No breach of Clause 6.2 (Classification of television programs)
· No breach of Clause 6.5 (Consumer advice) in relation to the episode broadcast on 14 September 2010
· Breach of Clause 6.5 (Consumer advice) in relation to the episode broadcast on
28 September 2010
· Breach of Clause 7.2 (Complaints handling)
The complaint
On 16 December 2010, the Australian Communications and Media Authority (the ACMA) received a written complaint about four episodes of Criminal Justice (Series 1) broadcast by the Australian Broadcasting Corporation (the ABC) on ABC2 on 31 August 2010 and 7, 14 and 28 September 2010.
The complainant submitted that the episodes of Criminal Justice, which were classified M by the ABC, should have been classified MA15+ because they, variously, contained themes, violence, drug use and nudity that were strong in impact. Further, the complainant submitted that the episodes broadcast on 14 and 28 September 2010 should have been preceded by consumer advice for drug use.
The complainant also submitted that they had already complained to the ABC about the matters noted above but had not received a substantive response within 60 days. The complainant then referred the matter to the ACMA.
The program
Criminal Justice is a UK crime series, where each series follows an individual through the criminal justice system. The first series centres on a young man, Ben Coulter, who is charged with the stabbing murder of a woman who he met only hours before her death.
Episode one was classified M by the ABC and broadcast at 8:30 pm on 31 August 2010. It was preceded with consumer advice that the episode contained drug use, a sex scene and violence.
Episode two was classified M by the ABC and broadcast at 8:30 pm on 7 September 2010. It was preceded with consumer advice that the episode contained adult themes, coarse language, a sex scene and violence.
Episode three was classified M by the ABC and broadcast at 8:30 pm on 14 September 2010. It was preceded with consumer advice that the episode contained violence and a sex scene.
Episode five was classified M by the ABC and broadcast at 8:30 pm on 28 September 2010. It was preceded by consumer advice that the episode contained violence.
On 9 February 2010, Criminal Justice (Series 1) was classified MA15+ by the Classification Board for DVD release. The DVD release classified by the Classification Board was the ‘original version’ of the series. The original version is 289 minutes in length.
Assessment
The assessment is based on copies of the broadcasts provided to the ACMA by the broadcaster and submissions from the complainant and broadcaster.
The ABC Code of Practice (the Code) contains the following provisions that are relevant in the matters raised by the complainant:
6. Television program classifications
6.1 The ABC applies the classifications listed below to all its domestic television programs with the exception of news, current affairs and sporting events. The ABC classifications are based on the Guidelines for the Classification of Films and Computer Games issued by the Office of Film and Literature Classification (OFLC), made under the Classification (Publications, Films and Computer Games) Act 1995.
6.2 Classification of television programs
...
M – Mature (recommended for people aged 15 years and over)
M programs may be shown:
· on weekdays that are school days, between noon and 3.00 pm and
· on any day of the week between 8.30 pm and 5.00 am.
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.
Themes: Most themes can be dealt with, but the treatment should be discreet and the impact should not be high.
Violence: Generally, depictions of violence should:
· not contain a lot of detail, and
· not be prolonged.
In realistic treatments, depictions of violence that contain detail should:
· be infrequent, and
· not have a high impact, and/or
· not be gratuitous.
...
Verbal and indirect visual references to sexual violence may only be included if they are:
· discreet and infrequent, and
· strongly justified by the narrative or documentary context.
Sex: Sexual activity may be discreetly implied.
Nudity in a sexual context should not contain a lot of detail, or be prolonged.
Verbal references to sexual activity may be more detailed than depictions if this does not increase the impact.
Language: Coarse language may be used.
Generally, coarse language that is stronger, detailed or very aggressive should:
· be infrequent, and
· not be gratuitous.
Drug Use: Drug use may be discreetly shown
Drug use should not be promoted or encouraged.
Nudity: Nudity outside of a sexual context may be shown but depictions that contain any detail should not be gratuitous.
...
6.5 Consumer Advice. Audio and visual consumer advice on the reasons for an M or MA15+ classification will be given prior to the beginning of an M or MA15+ program.
7. Complaints
...
7.2 ABC Audience and Consumer Affairs. Complaints that the ABC has acted contrary to this Code of Practice should be directed to the ABC in the first instance.
...
The complainant will receive a response from the ABC within 60 days of receipt of their complaint.
Complainant’s submissions
In their complaint to the broadcaster, the complainant submitted the following;
Episodes 1, 2, 3 and 5 of this series contained themes, violence, drug use and nudity that were strong in viewing impact. The episodes should have been classified as MA15+ and broadcast after 9.30pm.
Viewers should have been given consumer advice for “strong themes and violence” for the first three episodes of the series. They should also have been given consumer advice for “strong nudity” for episodes 2 and 3, and finally should have been given consumer advice for “strong drug use” for episodes 3 and 5.
I therefore believe that the ABC has breached clause 6.2 of the ABC Code of Practice by incorrectly classifying the four programs M, and for broadcasting them at 8.30pm, instead of the MA15+ time slot of 9.30pm.
The episodes were broadcast in their entirety with no modifications from the original BBC series which was released on ABC DVD in February 2010. The Australian Classification Board classified the Criminal Justice: Series 1 DVD on 9 February 2010 with the classification MA15+ and consumer advice for: “Strong themes, violence, drug use and nudity”.
The complainant provided a list of scenes from the episodes and extracts from the Classification Board’s report on the DVD release of Criminal Justice (Series 1).
In regards to episode one, the complainant submitted;
...the strong themes and violence (listed above) could not have been accommodated within the M classification.
The ABC should have classified episode 1 of Criminal Justice: Series 1 as MA15+ with the consumer advice for “Strong themes and violence”. In addition in incorrectly classifying episode 1 as M instead of MA15+, the ABC also failed to give consumer advice for “themes” or “adult themes”, which were strong in impact in the episode.
In regards to episode two, the complainant submitted;
...the strong themes, violence and nudity could not have been accommodated within the M classification.
The ABC should have classified episode 2 of Criminal Justice: Series 1 as MA15+ with the consumer advice for “Strong themes, violence and nudity”.
In regards to episode three, the complainant submitted;
...the strong themes, violence and nudity could not have been accommodated within the M classification.
The ABC should have classified episode 3 of Criminal Justice: Series 1 as MA15+ with the consumer advice for “Strong themes, violence, drug use and nudity”.
In addition in incorrectly classifying episode 3 as M instead of MA15+, the ABC also failed to give consumer advice for “themes” or “adult themes”, which were strong in impact in the episode. However, more importantly and disappointingly, the ABC completely failed to give consumer advice for “strong drug use”. The drug scene with Ben being injected with heroin against his will was strong in impact. Viewers should have been alerted to this scene in the consumer advice.
In regards to episode five, the complainant submitted;
The ABC should have classified episode 5 of Criminal Justice: Series 1 as MA15+ with the consumer advice for “Strong drug use”.
...
As with episode 3, the ABC completely failed to give consumer advice for “strong drug use”. The drug scene with Ben smoking heroin combined with the previous drug references was strong in impact. Viewers should have been alerted to this scene in the consumer advice.
However, the complainant also submitted that several classifiable elements contained within the four episodes, including sex, coarse language, violence, drug use and themes, could be accommodated within the M classification. The complainant specified certain scenes in their submission as examples of classifiable elements that had been correctly classified.
In relation to complaints handling the complainant stated that;
In addition to my original complaint, I would like to point out that I have not yet received a substantive response to my original complaint dated 5 October 2010. Furthermore, it has been more than two months since the date of my original complaint.
The ABC’s submissions
The ABC provided the ACMA with a copy of its response to the complainant, dated
11 January 2011, and requested that the response be treated as its initial submission to the ACMA. The ABC submitted that all four episodes were correctly classified.
Like all ABC Television programs, these episodes of Criminal Justice were classified prior to broadcast in accordance with the ABC's Code of Practice. As a result of this process each program was classified M, meaning that that they were recommended for viewers over 15 years of age. Each episode was preceded by the M classification symbol and audio and visual advisories relevant to the content in each episode were broadcast. As you are aware the ABC classifies the programs it broadcasts in accordance with the ABC Code of Practice.
In your letter of complaint you quote from the Classification Board report for the DVD release of series one of Criminal Justice. While the ABC Code of Practice is based upon the Board’s Guidelines for the Classification of Films and Computer Games, the Code and the Guidelines are not identical
...
Also, in the case of Criminal Justice, the Board report applies to a different version of the series to that broadcast by the ABC. It has a different duration overall (it is longer than the ABC version) and is in a compiled format as opposed to weekly broadcasts.
In regards to episode one the ABC stated;
The depictions of violence in this episode are post action, not detailed or prolonged, are infrequent, not gratuitous, and on this basis do not have a high impact. For these reasons the treatment was considered suitable for M classification with an advisory for violence.
...
Due to the brevity of the post action violence, the lack of detail (small amount of blood, no wound depicted and use of mid shots and not close ups) and the use of this scene to set up the narrative that follows (i.e. it is not gratuitous) the impact is not high and hence can be accommodated at the M classification level.
...
The ABC considered that there were no adult themes in this episode which warranted an advisory at M classification. Typically, an adult themes advisory is applied when a thematic element is a focus of a significant scene or the narrative overall. Suicide, addiction, domestic or institutional violence and similar themes are more likely to warrant an adult themes advisory.
In regards to episode 2 the ABC stated;
The impact of the theme of institutional violence is not high and was considered suitable for M classification with an advisory for adult themes. The ABC once again differs from the Board in that it does not typically include modifiers such as ‘strong’ when applying an advisory for adult themes.
...
Your concern [about violence] relates to two scenes identified in the Board report.
...
The violence in this scene [in which Ben is stripped by other prisoners] does not contain a lot of detail, is not prolonged or gratuitous and does not have a high impact, given the lack of wounding and the immediate assistance rendered to him. It was considered suitable for M classification with a violence advisory. The scene as described in the Board report which you quote in your complaint appears to be different to the version screened by the ABC. There is no shaving of Ben’s body or his scrotum, as described in the Board report.
...
The second scene of violence occurs when a man is implied to be beaten in a cell, off-screen. Sound effects of punches are briefly heard. The man then appears from the cell and walks up to Ben and apologises. His face is bloodied in some areas and there is some bruising. The violence is not shown, the wounding when it is revealed is not excessive, and the scene is not gratuitous or prolonged. It was considered suitable for M classification with a violence advisory.
...
The nudity is not detailed or gratuitous... There is some rear view nudity, often blurred out of focus... The focus of these scenes is the humiliation of the individuals involved, their vulnerability, and the prison environment: not the nudity.