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 “Hall Pass” 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. 3 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 Farrelly brothers, famous for their unique brand of humour showcased in comedy blockbusters such as “Dumb and Dumber”, “Shallow Hal”, “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).