CASE NUMBER: 32/2012

DATE OF HEARING: 27 JUNE 2012 JUDGMENT ISSUED: 18 JULY 2012

MONNAKGOTLA COMPLAINANT vs

M-NET RESPONDENT

TRIBUNAL: PROF KOBUS VAN ROOYEN SC (CHAIRPERSON) PROF HP VILJOEN (DEPUTY CHAIRPERSON) MS G HARPER DR N MAKAULA MR A MELVILLE

Complainant: The Complainant was not present

Respondent: Dr Dario Milo, Duncan Wild from Weber Wentzel Bowens accompanied by Theo Erasmus and Sandra Geldenhuys, M-Net. ______

Complaint that explicit scene of male genitals in film “” caused Complainant to suffer shock, puzzlement, dismay and embarrassment – scene was broadcast in the context of a comedy film about two men being given a “Hall Pass” to relieve them of their marital duties for a while – film rated 16SNL and particular scene appearing about 1 hour and 23 minutes after start of the watershed – Tribunal finding that scene cannot be said to depict explicit sexual conduct in contravention of clause 9 of the Code – scene also did not violate anyone’s human dignity or degrade any person – there was also no incitement to cause harm - film could be described as a bona fide artistic or dramatic work and clause 9 of the Code does not apply - consequently there was no contravention of the Code – complaint not upheld - Monnakgotla vs M-Net, Case No: 32/2012(BCTSA) ______2

SUMMARY

This matter concerns a complaint that an explicit scene of male genitals in the film “Hall Pass” caused the Complainant to suffer shock, puzzlement, dismay and embarrassment. The scene was broadcast in the context of a comedy film about two men being given a “Hall Pass” to relieve them of their marital duties for a while and their antics while trying to enjoy their “freedom”. The film was rated 16SNL and the particular scene appeared about 1 hour and 23 minutes after the start of the watershed. The Tribunal found that the particular scene cannot be said to depict explicit sexual conduct in contravention of clause 9 of the Code. Even if the Tribunal were to find that there was explicit sexual conduct depicted, the scene did not violate anyone’s human dignity or degrade any person. The requirement that the explicit sexual conduct must constitute incitement to cause harm was also not met. The film was also found to be a bona fide artistic or dramatic work with the result that clause 9 of the Code (even if found to have been contravened) does not apply and consequently no contravention of the Code has been committed.

JUDGMENT

Prof HP Viljoen

[1] The Registrar of the BCCSA received a complaint by Mr Alfred Monnakgotla against M-Net for broadcasting a film called Hall Pass on Saturday 12 May at 20:30. The complaint was referred to this Tribunal for a hearing. The complaint is about the explicit shot of male genitalia. The scene was broadcast at about 21:23, which is about 53 minutes after the start of the film and about one hour and 23 minutes after the start of the watershed which applies to subscription television broadcasts. It should be noted that a viewers’ advisory was broadcast with the film in conformity with the Film and Publications Board classification of 16 and with warnings of Sex, Nudity and Language (16SNL).

[2] The complaint reads as follows:

“I am the Acting Head of Corporate Services for a certain government department in the Western Cape Province but I am writing this complain in my private capacity/as a private citizen.

My wife was watching this movie last night while I was busy working on the computer in the study room.

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My wife kept on laughing while this movie was playing and I specifically asked her whether the movie was hilarious, she responded by saying yes,the movie was enjoyable because its a comedy.

After 20 minutes or so I then came out of the study room and decided to watch the movie with her.

While we were still taken aback by the movie, we saw 2 guys pulling out a guy who apparently fell into the swimming pool. The other black American guy (I presume) was completely naked and the camera specifically zoomed (directed the lens) at his erect penis for about 6seconds or so (I am not sure whether the broadcasting of an erect penis of a man in a comedy is supposed to make people laugh). The camera specifically showed his fully erect penis for every person who was watching this movie to see. This was not even late at night,children are still very awake at this time and watching movies with their parents.

I couldn't believe my eyes of what I had just seen. Out of absolute shock,puzzlement,dismay and embarrassment I quickly went to the study room while my wife was frantically trying to change the TV channel to another channel.

Myself and my wife did speak last night as a direct result of this shocking broadcast of a fully erect penis of a man without being warned about it in anyway whatsoever.

There is so much tension now between myself and my wife as a direct result of this Highly unfortunate incident that was shown in this movie last night.

Fortunately we do not have kids, God only knows what could have happened to our kids especially with regard to the possible emotional scar that our children could have suffered as a direct result of this inconsiderate broadcasting of a fully erect penis of a middle aged man.

Please be aware that I will be lodging a formal complaint with the BCCSA in this regard.

Also, I am going to lodge a formal complaint with the Parliamentary Committee on Broadcasting to see how such movies or scenes can be censored in future. Lastly, I will forward all correspondence with regards to this issue to the Minister and Deputy Ministers of Communication.

The public also needs to know about this as well because DsTv has a large subscriber base.

It is my earnest view that DSTV should conduct itself as a responsible corporate citizen.

The broadcasting of this movie has seriously torn my family apart, this is really reckless and grossly irresponsible of DSTV.”

[3] M-Net responded as follows:

Response to complaint: Hall Pass broadcast on M-Net on Saturday 12 May 2012 at 20:30.

1. We refer to the complaint by Mr. Alfred Monnakgotla which you forwarded to us on 13 May 2012. A DVD copy of the film and initial comments on your question 4

regarding the age restriction, warnings and availability of the family audio channel was also provided.

2. The Complainant does not refer to a specific provision of the Code, but the Chairperson has requested that we consider clauses 9.4 and 4.11 (ii) of the Code of Conduct for Subscription Broadcasting Services (“the Code”).

3. Clause 9.4 of the Code requires that:

A subscription broadcasting service licensee may not knowingly broadcast material which, judged within context, contains a scene or scenes, simulated or real, of any of the following – explicit sexual conduct which violates the right to human dignity of any person or which degrades a person and which constitutes incitement to cause harm; or

“Sexual Conduct” is defined in Clause 4.11 (ii) to include “the undue display of genitals or the anal region.”

4. THE COMPLAINT

In essence, the complaint relates to a single scene in the film described by the complainant as the “shocking broadcast of a fully erect penis of a man without being warned about it in anyway whatsoever”

5. M-NET’S RESPONSE

a. The Commission will note when the film is viewed that the scene in question does not feature an erect penis as claimed by the complainant. It does appear from the Chairperson’s reference to Clause 4.11 (ii) that this point has already been noted.

b. The film does contain a brief scene in which male genitals are depicted. The depiction is clearly intended for comic effect and the scene is not of a sexual nature nor does it depict sexual conduct of any kind.

c. We will demonstrate to the Commission that the brief display of genitalia in a comic scene does not violate the provisions of clause 9.4 of the Code and that adequate warnings were provided.

d. The film, “Hall Pass”, is a 2011 comedy produced and directed by the , famous for their unique brand of humour showcased in comedy blockbusters such as “”, “”, “Me, Myself and Irene” and “There's Something About Mary”.

6. The film was cleared for exhibition by the Film and Publications Board with an age restriction of 16 with warnings for Language, Nudity and Sex. Although M- Net is required to be guided by the FPB classification, we also undertake a rigorous internal classification process. M-Net’s internal panel viewed the movie before transmission and recommended the same rating to that of the Film and 5

Publications Board. An age restriction of 16 with warnings for Sex, Nudity and Language was given to the film.

7. The Commission has not questioned the scheduling, but it is worth noting that, following the classification, M-Net ensured that the film was scheduled after the commencement of the watershed period. The film was broadcast at 20:30, half an hour after the commencement of the watershed. In addition, the scene complained about was broadcast at approximately 21:23, almost an hour and a half after the commencement of the watershed.

8. Clause 9.4 of the Code prohibits the knowing broadcast of “explicit sexual conduct which violates the right to human dignity of any person or which degrades a person and which constitutes incitement to cause harm” (our emphasis).

9. Importantly, the broadcast of sexual conduct will only constitute a violation of clause 9.4 if the sexual conduct in question (a) violates the right to human dignity or degrades a person and (b) constitutes incitement to cause harm.

10. In our view, the brief display of male genitalia in a comic scene does not meet the elements required to establish a violation of Clause 9.4. In particular, the scene in question does not violate the right to human dignity or degrade any person and, most importantly, cannot be said to constitute incitement to cause harm.

11. It is also not correct that that no warning accompanied the broadcast of the film. M-Net seeks to properly advise its subscribers of potentially unsuitable content to enable them to activate their parental control mechanism and ensure that children and, in this case sensitive viewers, are not exposed to such content.

12. In the case of this film, M-Net ensured that adequate warnings were in place to communicate to subscribers that the film carried an age restriction with specific warnings for Sex, Nudity and Language. The warnings were clearly displayed before the start of the film as well as in the top right hand corner of the screen for the first 3 minutes of broadcast. Proof of the age restrictions broadcast before and during the start of the film was provided to the Commission on 18 May 2012.

13. As demonstrated above, the broadcast in question did not violate the provisions of Clause 9.4 of the Code and adequate warnings were provided at the start of the film. Accordingly, M-Net requests that the complaint be dismissed.

14. M-Net would like to thank Mr Alfred Monnakgotla for taking the time to put his concerns down in writing and to assure him that we make every effort to broadcast responsibly. We have to cater for vastly differing tastes and every film will not appeal to every subscriber. We regret any offence caused. “

[4] The Complainant responded as follows:

Please pardon me for only responding to your correspondence now. I have had such an exceedingly compressed work schedule. 6

I am not sure whether I understand you correctly: Am I or will I be expected to provide evidence/mitigate in aggravation of sentence at the hearing? If that is the case, unfortunately I will not be able to attend the hearing because I reside in Cape Town.

However,MultiChoice and/or any of its subsidiary business partners IS fully responsible and accountable for the reckless and reprehensible conduct on its part by showing such a movie at that time of the day, especially when children are wide awake and watching TV with their parents.

How does showing a fully erect penis of a man arouse and elicit excitement, humor and awe?

What happened to the ethical and moral standards of MultiChoice as an inherently public satellite TV company which has operations in most parts of the African continent? Has this become the moral corporate compass, business strategy and organizational culture of MultiChoice?

This is a grave and inherent danger of having so powerful a broadcasting Monopoly in a dynamic and vibrant country like South Africa?

I sincerely hope that sanity on the part of MultiChoice shall prevail and MultiChoice shall take the singular decision of canning the movie or alternatively playing the movie at 01:00 during the early hours of the morning or warn viewers before the movie commences about the unsightly scene of needlessly showing an erect penis of a man (and for what?).

Thank you for all your assistance and please keep me informed of the outcome of the hearing.”

[5] The context in which the scene complained of must be judged, is the following: The film is a comedy by the Farrelly brothers who, as stated by MNet, has a unique brand of humour. The story is about two men who are given a “hall pass” by their wives to temporarily relieve them of their marital obligations. The film is a humorous look at their antics in trying to enjoy their temporary “freedom”. As could be expected, there is a lot of sexual innuendo in the film. The scene complained about is set in a gym with a jacuzzi and a sauna. One of the actors 7

lies in the jacuzzi with a newspaper. While reading the newspaper he falls asleep and starts drowning. Two other actors, at that moment, come naked out of the sauna. They save the drowning man by lifting him out of the jacuzzi and laying him next to the jacuzzi. While they stand over him, one at his head and the other at his feet, the camera focuses on the large penis of the man standing at his head. The man who has just been saved gives the penis one look and then looks at the much smaller penis of the man standing at his feet. The humour comes in when he asks if the two men can swap places. It should be noted that not one of the two penises is erect.

[6] It is understandable that a viewer could be upset by the broadcasting of an explicit scene of a penis in a film. Although the film “Hall Pass” could be classified as comic entertainment with a sexual theme, suddenly being confronted with an explicit scene of a penis probably does not accord with the moral values of a large part of the South African population. With his complaint, the Complainant expresses the disgust probably experienced by many other viewers of the scene in the film. However, to set the record straight, we have to mention two matters. The Complainant throughout in his complaint and in his reaction to the Broadcaster’s response refers to a fully erect penis. After watching the film, the members of the Tribunal were in agreement that it is not correct to aver that the penis was erect or fully erect. The other matter concerns the reference to children by the Complainant, both in his complaint and in his reaction to the Broadcaster’s response. In order to protect children from viewing material that might be harmful to them, the BCCSA applies the watershed rule, which means that adult material may not be broadcast before 20:00, for subscription broadcasters, and 21:00, for free-to-air broadcasters. Although we have warned broadcasters in the past that the watershed is not a waterfall, meaning that sexually explicit material, gratuitous violence, etc. should not be broadcast immediately after the start of the watershed, this was not the case with this broadcast. The scene complained about was broadcast long after the start of the watershed. Furthermore, with subscription broadcasting, there are parental control mechanisms that allow 8

parents and care givers to protect children from viewing material that is not suitable for their age group. Parents and caregivers can also consult the Electronic Programme Guide (EPG) to find out more about the broadcast to be seen. We have concluded therefore that the complaint in this case does not concern the protection of children.

[7] This case typically illustrates the task of the Broadcasting Complaints Commission, namely to balance the rights of the broadcasters to freedom of expression and the rights of the viewers (in this case of subscription broadcasting services) not to be subjected to hate speech, child pornography, explicit violent sexual conduct, etc. The right to freedom of expression is not unlimited and the Code of Conduct for Subscription Broadcasting Services Licensees, to a certain extent, limits this right. Clause 9 of the Code is applicable here and the relevant part reads:

A subscription broadcasting service licensee may not knowingly broadcast material which, judged within context, contains a scene or scenes, simulated or real, of any of the following – 9.1 ….. 9.2 …. 9.3 …. 9.4 explicit sexual conduct which violates the right to human dignity of any person or which degrades a person and which constitutes incitement to cause harm;

“Sexual conduct” is defined in clause 4.11 of the Code as including, inter alia - (i) male genitals in a state of arousal or stimulation; (ii) the undue display of genitals or of the anal region.

[8] Dr Milo, who appeared for the Broadcaster, argued that there are four requirements that have to be satisfied before it could be found that the broadcaster is guilty of a contravention of the Code: the broadcast must have been made knowingly; the scene must have depicted explicit sexual conduct; the conduct must have violated the right to human dignity or have degraded a person; and there must have been incitement to cause harm. The first one, that the broadcast must have been made knowingly, can be dealt with summarily. The Broadcaster did not say that it did not know what it was broadcasting and, of course, it could 9

not do so. In this respect we differ from Dr Milo’s contention in paragraph 37 of his heads of argument. We are convinced that the broadcaster knew that what it was broadcasting (namely explicit shots of a penis) was bound to be controversial and might even have contravened the Code. M-Net loads its films in South Africa and local advisory committees consider the films. If they did not do so, the risk is for the account of M-Net on the basis of dolus eventualis. It is found that the broadcast meets the first requirement.

[9] Secondly, the question is whether the scene complained about depicts explicit sexual conduct. In this context, as Dr Milo argued, sexual conduct consists of the display of male genitals in a state of arousal or stimulation. It was clear to all at the hearing, after watching the film, that male genitals shown in this scene were not in a state of arousal or stimulation. As stated above, the Complainant was not correct when he referred in his complaint to a fully erect penis.

[10] Another part of the definition of sexual conduct includes reference to the undue display of genitals or of the anal region. Although, according to Dr Milo, there is no authoritative legal interpretation to be found on the meaning of “undue display of genitals”, he was able to find some legal interpretations of the concept of “undue” in other contexts. It seems that one can accept that the meaning that could be applied in this context could be stated to be “excessive”, “improper” or even “repugnant to certain principles”. There are three brief shots of the male genitalia. The scene comes as quite a surprise, although not out of context – the context being a men’s gym with a sauna and jacuzzi and two men coming out of the sauna naked. Because of the briefness of the scene, we do not think that the shots were excessive. Whether the scene was improper or repugnant to certain principles is another matter. We are convinced that many viewers would regard an explicit shot of a penis on television as being improper or repugnant to their moral principles. As always, the scene must be judged in context. Taking the genre of the film, the time of broadcast, the target audience and the setting (a 10

men’s gym with sauna) into consideration, we do not think that this scene could be described as one of undue display of genitals.

[11] Even if we are wrong in our finding of what amounts to an undue display of genitals, we must still judge it as part of the definition of sexual conduct. Sexual conduct implies some sexual activity which is totally absent here. Although not comparable to the artistic excellence of a David statue by Michelangelo, the two naked men are just present there at the head and feet, respectively, of the man that they have just saved from drowning.

[12] The third requirement is that the explicit sexual conduct, which we have found to be absent, must violate the right to human dignity of any person or degrade a person. The “person” referred to here can be the average viewer who is not over sensitive or a person who is acting in the film. During argument on this point, Dr Milo quoted from a decision of the Canadian Supreme Court, Regina v Butler1 as follows: They are exploited, portrayed as desiring pleasure from pain, by being humiliated and treated only as an object of male domination sexually, or in cruel or violent bondage … as an example of what is violation of human dignity or degrading of a person. There is nothing of this sort present in this scene.

[13] The fourth requirement is incitement to cause harm. The term “incitement to cause harm” in the context of a complaint of hate speech, has been considered on many occasions by Tribunals of the BCCSA. In one such case, Schutte v Multichoice Channel 1262, the following was said regarding incitement to cause harm: The next element to be considered is that there must be incitement to cause harm. It has previously been stated by this Tribunal that such harm is not limited to physical harm, but includes emotional harm. If one accepts that “incitement”

1 1992 (1) SCR 452 at par 50-51 2 Case 10/2010 11

means to persuade, stimulate or move to action, as argued by the Respondent, we think that the words complained of and the context in which they were published do not constitute incitement. This case concerned a reality TV show called “Kenny v Spenny” in which a light aircraft pulled a banner in the air with the words “Jesus sucks” written on it. Although the Tribunal found that the words constituted the advocacy of hatred based on religion, it did not find that there was incitement to cause harm. In the present matter, as clause 9.4 also refers to the term “incitement to cause harm”, we think it is justified to refer by way of analogy to previous interpretations of the term. We accept that “incitement” can be caused by words, deeds or pictures. Considering that the scene complained of cannot be said to persuade, stimulate or move to cause harm, whether physical or emotional, we find that the fourth requirement has not been complied with.

[14] We were also referred to clause 11 of the Code. This clause contains an exception to clauses 9 and 10 (clause 10 deals with the advocating of and incitement to war, violence and hatred). Clause 11 excepts bona fide scientific, documentary, artistic, dramatic, literary or religious programming from the prohibitions contained in clauses 9 and 10. It was argued before us that “Hall Pass” qualifies as a bona fide artistic and/or dramatic work. There are probably many views on what should be regarded as artistic or dramatic work. It is not our task to determine which works are successful in being artistic or dramatic. Even poor works may qualify for this appellation. Without any counter arguments to prove the opposite, we accept Dr Milo’s argument that “Hall Pass” can be classified as a bona fide artistic or dramatic work.

[15] To recap then: Although finding that the Respondent knowingly broadcast the scene of the male genitalia, the particular scene cannot be said to depict explicit sexual conduct. Even if we were to find that there was explicit sexual conduct depicted, the scene did not violate anyone’s human dignity or degrade any person. The requirement that the explicit sexual conduct (which we found did not exist) must constitute incitement to cause harm, was also not met. Lastly we had to 12

consider whether the film could be described as a bona fide artistic or dramatic work. Without any argument to the contrary to consider, we have found that the film could be regarded as such. That means that clause 9 of the Code (even if found to have been contravened) does not apply and consequently no contravention of the Code has been committed.

[16] Just for the record, we would like to mention that it is unfortunate that the Complainant could not attend the hearing. We had the advantage of a very well prepared argument by the legal representative for the Broadcaster. We do not expect legal argument from complainants, but in this case the Complainant made some statements in his complaint that seem to be quite upsetting within the context of his family. For example he states the following: There is so much tension now between myself and my wife as a direct result of this highly unfortunate incident that was shown in this movie last night and The broadcasting of this movie has seriously torn my family apart, this is really reckless and grossly irresponsible of DSTV. This is a serious matter and we would have liked to question the Complainant on these statements. The answers could also have been informative for the Broadcaster in reconsidering its policy on broadcasting this type of film and the way in which it informs its subscribers.

[17] Lastly the Complainant expresses his intention to lodge a complaint with the Parliamentary Committee on Broadcasting “…to see how such movies or scenes can be censored in future”. We would just like to mention that since the inclusion in the Interim Constitution of 1994 and thereafter in the final Constitution of 1996 of the right to freedom of expression, censorship is, in principle, reserved for exceptional circumstances. In the case of films which are screened in theatres and distributed in DVD or video format, the Ministerial Task Group, which drafted the Films and Publications Act in 1994, states that the distributors agreed to pre- 13

classification for practical purposes.3 The Ministerial Task Group advised Parliament to no longer regulate broadcasting in the 1996 Films and Publications Act 1996. This advice was accepted in the light of section 192 of the Constitution of the Repbulic of South Africa, which places the regulation of broadcasting under an independent regulator – in practice ICASA and per approval by ICASA in terms of the Electronic Communications Act 2005, the BCCSA. No mechanism exists in broadcasting whereby broadcasts can be censored. The BCCSA can only consider and judge broadcasts that are the subjects of complaints and may not express itself on future broadcasts.

In the result it is found that there was no contravention of the Code and the complaint is not upheld.

JCW VAN ROOYEN SC CHAIRPERSON

The Chairperson and Commissioners Harper, Makaula and Melville concurred in the above judgment by Prof Viljoen.

3 See the Report of the Task Group as published by the Government Printer on 3 March 1994. The Report is available on the Website of the Commission under Annual Reviews ( it is the last “report”. See www.bccsa.co.za