The South Park "Bloody Mary" episode - religious sensibilities versus the right to freedom of expression in a free and democratic society

Browne v Canwest TV Works Limited

An outcry over the proposed screening of the "Bloody Mary" episode of South Park last year led to the screening being brought forward and increased ratings. Many viewers will have been impressed by the strong positive messages of individual responsibility and self-reliance conveyed by the programme. Aspects of the programme's disrespect for the iconic figure of the virgin Mary however led to a number of complaints to the Broadcasting Standards Authority. The Authority declined to uphold those complaints, and that decision was appealed by a representative of the Catholic Church. The High Court gave its decision in an important recent judgment.

The "Bloody Mary" episode of South Park screened in February 2006, amid significant public controversy and debate which caused the screening to be brought forward from its originally scheduled date of May 2006. The Catholic Bishops Conference took offence at the content and broadcast of the programme, and wrote to CanWest after its screening alleging "great offence", to the Catholic community in particular, and also to other Christians and the New Zealand Muslim community. CanWest's Standards Committee declined to uphold the complaint, but CanWest nevertheless apologised, and advised the Bishops Conference of its decision not to replay the episode.

The position of the Broadcasting Standards Authority

The Bishops Conference formally complained to the Broadcasting Standards Authority. The basis of the complaint was that the programme breached the standards of good taste and decency, and fairness, in Standards 1 and 6 of the Free to Air TV Code of Practice. The essence of the appeal was that the programme was so crassly tasteless, offensive and denigratory that it could not on any balanced and sensible view be said to observe the requisite standards of good taste and decency, and of fairness.

The programme certainly caused offence to some viewers. For those readers who missed it, and are not to have the benefit of any repeat screening, the following description is contained in the Authority's decision:

"In this episode, one of the characters, Randy, is arrested for driving while drunk, and is made to attend Alcoholics Anonymous meetings. There Randy is told that alcoholism is a disease, that he is powerless to control his drinking, and that only submitting to a higher power (God) can help him stop.

Following the meeting, Randy succumbs to his disease and drinks more heavily than ever, until he sees a news story on television about a statue of the Virgin Mary which is apparently bleeding, as the reporter puts it, "out her ass". A cardinal visits the statue, is showered in blood (accompanied by a "farting" sound), and declares the bleeding to be a miracle. Randy rushes to see the statue, hoping that he will be cured. When Randy approaches the statue, he too is showered in blood, and he declares himself "cured".

Later, when Randy is attending an AA meeting, having been sober for five days, another news report is broadcast, showing footage of the Pope visiting the statue. The Pope is shown peering at the statue from close range, whereupon he too is showered in blood, again with the same sound effects. The news item then reports that the Pope had declared the statue not to be a miracle. The reporter said:

Having investigated closely, the Pope determined that the blood was not coming from the Virgin Mary's ass, but rather, from her vagina. And the Pope said, quote, "A chick bleeding out her vagina is no miracle. Chicks bleed out their vaginas all the time.

At this point, Randy realises he could not have been miraculously cured. He reverts to drinking heavily, along with the other AA members, before his son points out that if there was no miraculous intervention, it must have been his own willpower that had kept him sober for five days."

The Authority declined to uphold the complaint.

Appeal to the High Court

The Authority's decision was appealed to the High Court by Bishop Denis Browne, in his capacity as President of the Catholic Bishops Conference.

The appeal was opposed by CanWest, which explained the satirical adult nature of the South Park cartoon series (as evident from the above description of the programme), and the fact that over the nine years it has screened in New Zealand it has poked fun at most major religions, nationalities and authority figures.

In order to succeed in such an appeal from a discretionary decision, it is necessary for the appellant to show that the decision maker (i.e. in this case the Authority) acted on a wrong principle, failed to take into account some relevant matter, took into account some irrelevant matter, or was plainly wrong. The thrust of the appeal in this case was that the Authority's decision was plainly wrong.

The appellant contended that the Authority had been wrong to take into account the impact of the right to free expression set out in section 14 of the Bill of Rights Act when considering the good taste and decency standard. In rejecting that contention the judge re-affirmed his earlier decision in TVNZ v Viewers for Television Excellence (a decision known as "VOTE") where he held that it is proper to take into account the right to freedom of expression set out in the Bill of Rights Act, and whether any limit on the right of freedom of expression is reasonable and demonstrably justifiable in a free and democratic society. The judge held that the Authority had not erred in principle in its application of the Bill of Rights Act.

The appellant further contended that the Authority was required to impose the requirement of good taste and decency without regard to context and that the Authority had erred in taking the context of this broadcast into account (e.g. the show's adult target audience, timeslot, AO classification, pre-broadcast warning, and the well-known nature of the South Park series). The appellant also contented for a universal, objective standard of good taste and decency. The judge noted that good taste and decency cannot be assessed in a vacuum, and rejected the submission that there are universal standards of good taste and decency that can and must be upheld irrespective of the context of the matter in issue.

The Authority had recognised that the broadcast was offensive to the Catholic community, but found, on balance, that it did not cross the threshold so as to be contrary to good taste or decency. The judge was not prepared to disturb that finding; and in particular was not satisfied that the Authority had erred in principle in finding (implicitly) that the right to free expression was a weightier consideration than religious rights under the Bill of Rights Act. The judge referred to the decision of the European Court of Human Rights in Otto-Preminger-Institut v Austria which emphasised that the right of freedom of expression:

"...is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that shock, offend or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society"."

The judge noted that the task of determining what are generally accepted standards of good taste and decency is one for which the Authority is specially qualified. The authority's view was that the material was of such a farcical, absurd and unrealistic nature that it did not breach standards of good taste and decency in the context in which it was offered.

The judge also noted that while the appellant was uniquely and acutely offended by Bloody Mary, the Conference's sense of outrage is not shared by the wider community.

Having secured an apology from CanWest, and its decision not to re-broadcast the episode, the Conference presumably considered it to be a matter of principle to pursue its complaint to the Authority and thereafter to the High Court. The consequent decisions of the Authority and the court are important affirmations of the right of freedom of expression in a free and democratic society.

(* We declare an interest in this matter, in that Andrew Scott-Howman, a partner of our firm, acted for the Broadcasting Standards Authority in relation to the appeal.)

Enquiries and information

For more information please contact Alan Ringwood, Partner.