Investigation Report No. 2875

ACMA file reference ACMA2012/1260

Licensee Nine Network Australia Pty Ltd

Station NBN, Regional NSW

Type of Service Commercial Broadcasting Service (Television)

Name of Program Big Brother

Date of Broadcast 1 September 2012

Relevant Broadcasting Services Act 1992 Legislation/Code  Section 149

Commercial Television Industry Code of Practice 2010  Clause 1.9.7 (Proscribed Material – present participants in reality television program in a highly demeaning or highly exploitative manner)  Clause 2.4 (Classification of Other Material)  Appendix 4 (Television Classification Guidelines – PG Classification)

Investigation conclusion  No breach of clause 1.9.7 (Proscribed Material – participants in reality television program in a highly demeaning or highly exploitative manner) of the Commercial Television Industry Code of Practice 2010.  No breach of clause 2.4 (Classification of Other Material) of the Commercial Television Industry Code of Practice 2010.

ACMA Investigation Report – Big Brother broadcast by NBN on 1 September 2012 1 The complaint On 17 September 2012, the Australian Communications and Media Authority (the ACMA) received a written complaint, via email, about the reality television program, Big Brother. The episode identified in the complaint was broadcast by Nine Network Australia Pty Ltd (NBN) at 5.30 pm on Saturday 1 September 2012. The complaint alleged that the PG-classified program contained inappropriate depictions of themes, in the form of sexual abuse, bullying and harassment. Not satisfied with the response provided by the licensee, the complainant forwarded the matter to the ACMA for investigation.

The program Big Brother is a reality television program based on a group of people living together in a house, isolated from the outside world. They are filmed 24 hours a day and there are periodic evictions from the house. The last person to remain in the house is declared the winner. The episode identified in the complaint (Episode 18 – Daily Show) contains a series of segments associated with a ‘Yes/No’ participant challenge set by Big Brother1:

It’s the seven seconds in heaven that sent the House into a spin – [housemates B and E’s] kiss to win Big Brother’s Yes/No Task.

To satisfy BB’s Task conditions, [B] said ‘Yes’ to his first kiss and [E], after a bit of prodding from the other HMs, volunteered to do the honours. The kiss sealed a lofty deal – winning the House a week on a full food budget. After a week of staples, the Housemates were sent jumping and squealing around the Lounge.

[...]

[B] was almost cheered all the way up, and then [housemates J and S] entered the conversation and pointed out that BB didn’t specifically ask [E] to do the deed. Realisation that it was a voluntary kiss sent [R] back to sulky square one. “It’s been a rough day,’’ he confided to BB in the Diary Room. “Seeing everyone laugh [at the kiss] wasn’t the best.”

But it seemed [R] had already connected the dots to set himself straight: “I know for a fact [E] wouldn’t have done what she did if it wasn’t to win a challenge,” he theorised. “She knows [B] likes her, she’s very thoughtful, and for [B] to kiss someone he doesn’t really like … she’s looked into that and thought ‘nuh’, I’ll just go up there and kiss him on the lips.”

[...]

Meanwhile, [B] was floating aloft on Cloud Number Nine. “It was quite good,” the new Lothario mused. “It didn’t feel good until afterwards and it had really sunk in. At the time it was just a weird feeling. Almost an out of body experience. Not a ‘wow’ experience but really cool in its own way.”

The episode was classified PG and was broadcast by the licensee at 5.30 pm on Saturday 1 September 2012.

1 www.bigbrother.com.au/news/8525513/bradleys-seven-seconds-in-heaven accessed 21 September 2012.

ACMA Investigation Report – Big Brother broadcast by NBN on 1 September 2012 2 ACMA Investigation Report – Big Brother broadcast by NBN on 1 September 2012 3 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: Proscribed matter

Relevant provision 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 1: INTRODUCTION

[...]

Proscribed Material

1.9 A licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances, to: […]

1.9.7 present participants in reality television programs in a highly demeaning or highly exploitative manner. Demeaning: A depiction or description, sexual in nature, which is a serious debasement of persons, or a group of persons, within a program. Exploitative: Clearly appearing to purposefully debase or abuse a person, or group of persons, for the enjoyment of others, and lacking moral, artistic or other values.

The term ‘debase’ is defined by the Macquarie English Dictionary (online) as:

1. To reduce in quality or value; adulterate.

2. To lower in rank or dignity. Use of the words, ‘in all of the circumstances ... is likely’ imposes an objective test2 and implies a real and not remote possibility; something which is probable.3

Complainant’s submissions In correspondence to the ACMA, received 17 September 2012, the complainant stated the following:

During a challenge which meant that housemates could not say no to Big Brother without penalty, the female housemates were asked “who would like to give [B] his first real kiss” which lead to one female housemate giving [B] a, as described by NBN, “quick closed mouthed kiss”.

2 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at p.12.

3 Re Vulcan Australian Pty Ltd v Controller-General of Customs (1994) 34 ALD 773 at p.778-779.

ACMA Investigation Report – Big Brother broadcast by NBN on 1 September 2012 4 In the context of the Yes/No challenge this question amounts to sexual abuse as neither [B] nor the female housemates could have said no, without severe penalty of reduced food/luxuries during the following week.

This situation of an authority figure, Big Brother, asking that two housemates kiss, in this manner, without either being free to say no, undermines the sexual safety messages given to children and adolescents to say no to unwanted sexual activity and advances, which includes kissing.

NBN’s response that [B] was, “a happy and willing participant” is debatable, and does not justify the abusive situation he and the female housemates were put it. Furthermore, even if the actual kiss was as described by NBN, “a quick closed mouthed kiss”, this need not have been the outcome when Big Brother put the housemates in this situation.

Licensee’s submissions In its response to the complainant, dated 12 September 2012, the licensee stated:

[...]

As you may be aware, while living in the house, there are a number of challenges that are set for the housemates. Your complaint refers to the ‘Yes/No’ Challenge where during the week Big Brother asks the housemates a series of questions, however they are only allowed to say ‘No’ three times. One of the questions asked by Big Brother was “who would like to give [B] his first kiss”, all the girls said ‘yes’ although [E] volunteered. It is well known that [B] has a crush on [E] and he was a happy and willing participant. The kiss he shared with [E] was a quick, closed mouth kiss and we do not believe it constituted ‘sexual abuse’ as stated in your complaint.

While we understand that you interpreted the conduct of the contestants as sexual abuse during the challenge and were therefore understandably offended, we believe we are not in breach of the Code. We do not believe that the program or the segment breached these guidelines.

Finding The ACMA finds that Nine Network Australia Pty Ltd, in broadcasting the program Big Brother at 5.30 pm on 1 September 2012, did not breach clause 1.9.7 of the Commercial Television Industry Code of Practice 2010. Reasons In order for there to be a breach of clause 1.9.7 of the Code, a broadcast must be likely, in all of the circumstances, to present participants in reality television programs in a highly demeaning or a highly exploitative manner. Only one of these limbs need be satisfied in order for a breach of clause 1.9.7 of the Code to occur. Use of the word ‘highly’ is indicative of the fact that the code is intended to apply to presentations that exhibit a level of intensity and seriousness.

Highly demeaning

To fall within the definition of ‘demeaning’ that forms part of clause 1.9.7 of the Code, the depiction or description of a person or group of persons must be ‘a serious debasement’ of those persons and that the serious debasement must be ‘sexual in nature’ (emphasis added). The episode itself explored themes associated with sexual activity, or in the case of housemate B, his reported sexual inexperience. The ‘Yes/No’ challenge (in this instance involving a kiss) is the mechanism used to explore this theme. To that extent, the depiction and/or description of the kiss is brought, broadly, within the ambit of clause 1.9.7.

ACMA Investigation Report – Big Brother broadcast by NBN on 1 September 2012 5 However, the ACMA is of the view that the material did not amount, in these particular circumstances, to a depiction or description which amounted to the level of debasement of persons as contemplated by clause 1.9.7 of the Code. More detailed reasons are outlined below under ‘Limiting Factors’.

Highly exploitative

To fall within the definition of ‘exploitative’ that forms part of clause 1.9.7 of the Code, a program must clearly appear to ‘purposefully debase or abuse a person or group of persons for the enjoyment of others’. It is arguable that to the extent that the program took advantage (in the context of a game) of its position of power over participants by threatening them with the consequence of unappetising staple foods should they fail to fulfil the challenge, it bordered on exploitative conduct.

However, there is no need to reach a definite finding on this as the ACMA does not consider the conduct, even if it is regarded as exploitative, meets the high test (as required by the Code) of being ‘highly’ exploitative. More detailed reasons are outlined below under ‘Limiting Factors’.

Limiting Factors

Use of the word ‘highly’ indicates that the Code contemplates an extreme scenario and sets a strong test for the prohibited program material. It is not sufficient that the program material presents participants in a reality television program in a demeaning or exploitative manner. The participants must be presented in a highly demeaning or highly exploitative manner for a breach of the Code to occur. The ACMA notes the following in relation to the segment:

 While the contestants were placed under a degree of pressure to take part in the challenge, they were free to withdraw from it at any moment.  While the participants are not, in advance, aware of the exact nature of the challenges and scenarios that they will face, they would be familiar with the program’s format, and would be aware that numerous challenges (sometimes of an uncomfortable nature) await them once they enter the Big Brother house.  The male kisser (B) was a willing participant in the challenge as indicated by his exclamation of ‘How is this bad?’ after being set the challenge.  E was not forced to participate in the challenge; the possibility to take part was thrown open to all of the females in the household, and she volunteered to take part.  The conduct falls considerably short of meeting the threshold required to constitute a ‘serious debasement of persons’, particularly a closed-mouthed kiss that was relatively brief.  Both the segment and the challenge were fundamentally light-hearted in nature. The ACMA is satisfied that participants were not presented in a way which exhibited the requisite level of intensity and seriousness to meet the threshold for a breach of clause 1.9.7 of the code.

ACMA Investigation Report – Big Brother broadcast by NBN on 1 September 2012 6 Issue 2: Classification

Relevant provisions

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

SECTION 2: CLASSIFICATION

[...]

Classification of Other Material

2.4 All other material for broadcast: Subject to Clauses 2.3 and 2.4.1, all other material for broadcast must be classified according to the Television Classification Guidelines (set out in Appendix 4) or, where applicable, the stricter requirements of Section 3: Program Promotions and Section 6: Classification and Placement of Commercials.

[…]

Appendix 4: Television Classification Guidelines

[…]

The Parental Guidance Recommended (PG) Classification

3. Material classified PG may contain careful presentations of adult themes or concepts but must be mild in impact and remain suitable for children to watch with supervision. […]

3.6 Themes: The treatment of social and domestic conflict and other themes that are directed to a more adult audience should be carefully handled and mild in impact. […]

Complainants’ submissions

On 1 September 2012, the complainant submitted to the licensee that:

Coercion by Big Brother for one of the female house-mates to give [B] his first “proper” kiss, which amounts to sexual abuse.

On 17 September 2012, the complainant submitted to the ACMA particular concern regarding the appropriateness of the content, given the likely composition of the audience.

Licensee’s submissions In its response to the complainant, dated 12 September 2012, the licensee stated:

Big Brother is also classified “PG” (“Parental Guidance Recommended”). The Code which is used by all the free TV stations in rating programs gives the following guidelines for the ‘PG” classification: ‘material classified “PG” may contain careful presentation of adult themes or concepts but must be mild in impact and remain suitable for children to watch with supervision’.

Given the reasons outlined above around the specifics of this challenge, we also believe the segment was well contained within the “PG” guidelines.

ACMA Investigation Report – Big Brother broadcast by NBN on 1 September 2012 7 Finding The ACMA finds that Nine Network Australia Pty Ltd, in broadcasting the program Big Brother at 5.30 pm on 1 September 2012, did not breach clause 2.4 of the Commercial Television Industry Code of Practice 2010.

Reasons

Television Classification Guidelines - The Parental Guidance Recommended (PG) Classification According to the Code, material classified PG may contain careful presentations of adult themes or concepts but must be mild in impact and remain suitable for children to watch with supervision. Clause 3.6 further states that the treatment of social and domestic conflict and other themes that are directed to a more adult audience should be carefully handled and mild in impact. The complainant is concerned that two housemates were placed in a situation where they were asked to kiss, with no option to refuse without penalty. This depiction is considered by the complainant as a form of ‘sexual abuse, bullying and harassment’. The episode in question contained themes associated with sexual activity, or in the case of housemate B, his sexual inexperience. The ‘Yes/No’ challenge is the mechanism used to explore this theme. The kiss identified by the complainant occurs during a scene at 11:30 minutes. The housemates are seated on a lounge when Big Brother announces that they must successfully complete a task set by him in order to avoid another week with basic food rations. Big Brother requests that B stand up and then asks him:

[B] would you like to receive your first real kiss from one of your fellow female housemates?

B answers that he would. Big Brother then addresses the female housemates reminding them of the ‘Yes/No’ task, before asking:

Would one of you like to give [B] his first kiss on the lips?

The housemates squeal and laugh, before housemate E stands up after one housemate says, ‘Go [E]’. E walks over to B, giggling and explaining she is nervous. The other housemates scream and cheer them on. E and B lean into each other and kiss on the lips, with what appear to be closed mouths, for approximately seven seconds. At 18:46 minutes, three housemates are discussing the kiss and whether B ‘felt bad at all or not’. They appear to agree that B does not feel bad and that he shouldn’t as it was ‘a bit of fun’. The discussion establishes that the kiss was not a ‘full pash’ and that there was ‘no open mouth’. At 19:36 minutes, B is in the diary room. Big Brother asks whether he enjoyed his first kiss. B explains that he was nervous and that it was ‘a really bizarre experience’. The rest of the episode focuses on the kiss and, in particular, the reaction of another housemate, (R), who appears to be annoyed by the challenge. For example, at 27:20 minutes, R is in the diary room discussing the kiss with Big Brother. R states:

Nice game today, Big Brother, with [B] and [E]. Well played. But a game’s a game. And the housemates won.

ACMA Investigation Report – Big Brother broadcast by NBN on 1 September 2012 8 In response, Big Brother reminds R that he did not select E for the challenge. The episode concludes when the housemates retire to bed with R snapping, ‘Stop taking the crumbs [B]’. The kiss itself is short – seven seconds in duration – and the images broadcast indicate that the housemates kissed with closed mouths. The camera angles used are for the most part medium or long shots and often include images of the other housemates responding to the kiss by jumping up and down, laughing and screaming. The only close up shot of B and E kissing is from a camera positioned behind B – as such, it does not provide any detail of the kiss. The kiss has been carefully presented and is considered to be less than mild in impact. Verbal references to the kiss, including a discussion between Big Brother and B concerning his feelings about the kiss, are also considered to be less than mild in impact. The discussion commences with Big Brother asking B if he enjoyed his first kiss. B explains how he felt nervous and shaky but it was quite good. The discussion did not explore or describe the actual kiss. While it is noted that both housemates appear nervous before the kiss, neither appear distressed. The episode clearly establishes that the kiss is a challenge and that housemates have the choice to say ‘yes’ or ‘no’ to the challenge. The ramifications of that choice are also clearly established. It is therefore considered that as adult themes were carefully presented and less than mild in impact they can be accommodated within the PG classification.

ACMA Investigation Report – Big Brother broadcast by NBN on 1 September 2012 9