Investigation Report No. 3051ACMA file reference ACMA2013/840

Licensee Tasmanian Digital Television Pty Ltd

Station TDT (TEN), Tasmania

Type of Service Commercial Television Service

Name of Program The Biggest Loser: The Next Generation (program promotion)

Dates of Broadcast 21 - 23 March 2013

Relevant Legislation/Code

Broadcasting Services Act 1992 Section 149

Commercial Television Industry Code of Practice 2010 Clause 1.9.7 (Proscribed Material) Clause 2.4 (Classification of Other Material) Clause 3.9 (Restrictions in PG Programs in Certain Time

Periods) Appendix 4 (Television Classification Guidelines – PG

classification)

Decision Date 28 June 2013

Investigation conclusion No breach of clause 1.9.7 (Proscribed Material) 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.

No breach of clause 3.9 (Restrictions in PG Programs in Certain Time Periods) of the Commercial Television Industry Code of Practice 2010.

ACMA Investigation Report – The Biggest Loser: The Next Generation (program promotion) broadcast by TDT on 21 - 23 March 2013 1

The complaintOn 17 May 2013, the Australian Communications and Media Authority (the ACMA) received a written complaint about a program promotion for The Biggest Loser: The Next Generation. The promotion was broadcast by Tasmanian Digital Television Pty Ltd (TDT) at various times between 21 - 23 March 2013.

The complaint alleged that the promotion contained demeaning, exploitative, threatening and offensive language and behaviour.

Not satisfied with the response provided by the licensee, the complainant forwarded the matter to the ACMA for investigation.

The programThe Biggest Loser: The Next Generation is a reality television program which is described by the licensee in the following terms:

The Biggest Loser: The Next Generation is the new series of the popular and widely recognised Australian reality television program broadcast by Tasmanian Digital Television, in which overweight parents and their son or daughter participate in a contest to lose the most percentage of weight and transform their lives.

The complaint identified that the promotion was broadcast several times between 6.00 pm and 10.00 pm during the week preceding the actual broadcast of the program on 24 March 2013.

The licensee confirmed that the promotion was broadcast at the following times on the dates submitted by the complainant:

8.45 pm and 9.45 pm on 21 March 2013

9.07 pm on 22 March 2013

7.17 pm and 8.59 pm on 23 March 2013.

The promotion was classified G and broadcast during both PG and M classified programs.

AssessmentThe 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.

Relevant ProvisionsThe 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 circumstances, to:

[…]

ACMA Investigation Report – The Biggest Loser: The Next Generation (program promotion) broadcast by TDT on 21 - 23 March 2013 2

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.

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.

[…]

SECTION 3: PROGRAM PROMOTIONS

[…]

3.9 Special restrictions apply to the content of program promotions in PG programs broadcast between 7.00pm and 8.30pm on weekdays and between 10.00am and 8.30pm on weekends. All such program promotions must comply with the PG classification requirements set out in paragraph 3 in Appendix 4 and in addition must include no material that involves any of the following:

[…]

3.9.8 coarse language, other than of a very mild nature;

3.9.9 anything which has more than a mild sense of threat or menace.

[…]

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.

[…]

3.3 Language: Low level coarse language may only be used infrequently, when justified by the story line or program context.

[...]

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.

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Issue 1: Classification

Complainant’s submissionsIn correspondence to the licensee, dated 24 March 2013, the complainant stated the following:

[…]

The […] Biggest Loser, The Next Generation […] has aired several evenings between 6 and 10pm […] during the last week or more on TDT, channel 5. The program itself airs tonight, Sunday 24/3/2013. Fitness trainer Michelle Bridges says to contestant Brett, “You can either go up man street or you can go up pussy street”. Nothing wrong with that. It is the motivational tough love we all need from time to time. However, instead of leaving it there, she then turns away from him and says, “Stop embarrassing yourself!” After Brett responds with a censored comment, she, rather than apologizing to him for her snide quip, seeks to humiliate him by repeatedly asking him what he said in a manner befitting a thug picking a fight, to which he fully explains his own response to her. Then, to make matters even worse, points and says bluntly “Get out!”

[…]

I draw your attention to section 3 of the code […] clause 3.9.9 says ‘Anything which has more than a mild sense of threat or menace’. Please note that inflammatory program promotions […] are inflammatory at any viewing hour.

[…]

In correspondence to the ACMA, dated 14 May 2013, the complainant stated the following:

[…] regarding the incident on [The] Biggest Loser, The Next Generation, [the licensee] completely missed out the actual comment made by Michelle Bridges that upset Brett, which was “Stop embarrassing yourself.”

Licensee’s submissionsIn correspondence to the complainant, dated 8 May 2013, the licensee stated the following:

[…]

Your correspondence expressed particular concern at the remarks made towards Brett by team trainer Michelle, during a program promotion for the episode broadcast on Sunday 24 March 2013.

The Code stipulates that subject to certain qualifications, programs may be promoted within programs or at times with a more restrictive classification provided that the promotion contains only material that complies with the Code requirements for that lower classification. That is, a promotion for a program with a PG classification may be broadcast in a G classification time zone provided that the promotion itself satisfies the G classification.

The promotion to which you refer showed team trainer Michelle and Brett during an exercise drill. As Brett was finding the exercise difficult to complete Michelle expresses her opinion to him, by saying… “you are sitting on the crossroads at the moment, you can go down ‘pussy’ street, or man up road”. Brett took offense at the remarks.

Upon review, we consider the […] program promotions are broadcast in accordance with the Code. The promotion you refer to contained no coarse, socially offensive or what we would consider discriminatory language that cannot be accommodated within the G classification, with an expletive used by Brett

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being bleeped out. There was no more than a very low sense of threat or menace during this brief sequence of the promotion.

The Biggest Loser: The Next Generation provides a legitimate context for the inclusion of naturalistic low-level coarse language and minor disagreements, particularly when it relates to the reactions of the contestants and their trainers.

[…]

FindingThe ACMA finds that Tasmanian Digital Television Pty Ltd, in broadcasting a promotion for The Biggest Loser: The Next Generation program on 21 March 2013 at 8.45 pm and 9.45 pm, 22 March 2013 at 9.07 pm and 23 March 2013 at 7.17 pm and 8.59 pm, did not breach clause 2.4 and clause 3.9 of the Commercial Television Industry Code of Practice 2010.

ReasonsThe program promotion was broadcast on five occasions during 21 - 23 March 2013 between the times of 6.00 pm and 10.00 pm. One of these promotions was broadcast on 23 March 2013, during a PG classified program at approximately 7.17 pm. As such, this broadcast needed to comply with the PG requirements of the Code, including the more stringent requirements set out at clause 3.9 of the Code.

The promotion runs for approximately 30 seconds and depicts Brett, a contestant on the show, and his trainer, Michelle, in a gym. Brett is depicted doing weights while superimposed text on the screen reads, ‘BRETT NEEDS A DOSE OF…’ A title card appears which reads, ‘TOUGH LOVE!’ In the next shot Brett has stopped exercising.

Michelle addresses him and says:

Just keep going. You’re sitting on the cross roads right now. You can either go down pussy street or man up road! Man up.

Walking away from him, Michelle also says:

Stop embarrassing yourself. This is ridiculous.

Brett responds. A beep is heard and a textual logo which reads, ‘The Biggest Loser’ is visible over his mouth.

Michelle says:

What was that?

Brett replies:

I think you heard. You tell me I’m embarrassing myself.

As Brett continues to speak, another beep is heard, with an accompanying depiction of the logo graphic obscuring his mouth.

The scene quickly cuts to a graphic card which depicts The Biggest Loser: The Next Generation logo, a still image of the trainers and the time and days of the week the program is broadcast. Audio is carried over from the previous scene. Two beeps are heard followed by Michelle’s voice saying, ‘Get out.’

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Given the complainant’s concerns, there are two classifiable elements that are relevant – language and themes, specifically interpersonal and social conflict.

Material suitable for the PG classification may contain careful presentations of adult themes or concepts but must be mild in impact and remain suitable for children to watch with supervision. The Code 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. There must also be no material which has more than a mild sense of threat or menace.

The promotion features brief, verbal instances of conflict between Michelle and Brett that are very mild in impact. Michelle is Brett’s personal trainer, who is depicted motivating and encouraging Brett to not give up on his exercise regime. She wants Brett to persevere and tells him to ‘Man up’, providing two options: ‘pussy street’ or ‘man up road’. Although firm, Michelle’s tone of voice is not aggressive and her comments are justified within a gym training environment. She speaks out in frustration and Brett, also frustrated, reacts to Michelle’s comments using what appears to be obscured coarse language. When Michelle says ‘Get out’, she is not visible on screen, which diminishes the impact of the words.

The Code states that low level coarse language may only be used infrequently, when justified by the story line or program context. Additionally, there must be no coarse language, other than of a very mild nature. Brett’s coarse language is implied only; censored by beeps and a graphic, which obscures any aural and visual detail. Michelle’s one reference to ‘pussy’ is used to infer cowardice and its use is justified within the context of motivational speech. The language presented is further justified by the program context and is no more than very mild in nature.

As such, the promotion is considered to have a very mild sense of threat or menace. The treatment of themes and the presentation of language has been carefully handled by the licensee and the material is likely to be suitable for children to watch without supervision.

For these reasons it is considered that the language and themes in the program promotion can be accommodated within the PG classification.

The promotion was also broadcast on four other occasions during M classified programs. As the promotion contains material suitable at the PG classification, these broadcasts are also considered to comply with the requirements of the Code.

Issue 2: Proscribed Material

Complainant’s submissionsFor the complainant’s submissions relevant to proscribed material, refer to the complainant’s submissions under Issue 1 above.

Licensee’s submissionsIn correspondence to the complainant, dated 8 May 2013, the licensee stated the following:

[...]

Tasmanian Digital Television and Shine Australia (the producer of The Biggest Loser: The Next Generation) are fully aware of the duty of care we have towards all contestants. We take that duty of care very seriously and we understand our responsibilities.

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All contestants work with highly qualified and professional trainers, nutritionists and psychologists. The well-being of the contestants is always our number one concern.

[...]

By agreeing to compete in the program, the participants consent to the exercise and diet regime recommended by the program’s panel of health and fitness experts. The format and characteristics of The Biggest Loser are well understood by both participants and viewers. Similar to personal training sessions, participants are at times encouraged and challenged in various exercise but of course retain at all times the ability to decline to take part in, or cease participating in, a particular exercise or the program generally. The focus of this series continues to be on a collaborative, educational and supportive weight loss environment

[...]

In correspondence to the ACMA, dated 4 June 2013, the licensee stated the following:

[...]

The 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.

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’.

[...]

The format and characteristics of The Biggest Loser: The Next Generation are well understood by both participants and viewers. The exercises and challenges featured in the program tests both the physical and mental resolve of the contestants.

[...]

Brett is not ‘demeaned’ for the purposes of clause 1.9.7 of the Code as there is no debasement [...] of a sexual nature depicted or described in the promotion.

Nor is he presented in a highly exploitative manner under clause 1.9.7. He is clearly not purposefully debased or abused in the promotion. Rather the challenge tests his physical and mental attribute[s] to help him succeed.

Contestants are encouraged and challenged but retained at all times the ability to decline to take part in, or cease participating in, a particular exercise or challenge. Some of these exercises and challenges may be distasteful to some viewers or participants but this is not exploitative.

The contestants are aware of the nature of the program, the exercise challenges and dietary programs that contestants are required to participate in; they consent to participate; and are made aware of the nature of the challenges before they participate.

[...]

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FindingThe ACMA finds that Tasmanian Digital Television Pty Ltd, in broadcasting a promotion for The Biggest Loser: The Next Generation on 21 March 2013 at 8.45 pm and 9.45 pm, 22 March 2013 at 9.07 pm and 23 March 2013 at 7.17 pm and 8.59 pm, did not breach clause 1.9.7 of the Commercial Television Industry Code of Practice 2010.

ReasonsFor a breach of clause 1.9.7 of the Code to occur, a broadcast must be likely, in all of the circumstances, to ‘present participants in reality television programs in a highly demeaning or highly exploitative manner’.

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 for the material to present 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.

A breach of the Code can occur if either of the two parts of the clause is satisfied. The ACMA has considered the promotion against each of the two parts.

Highly demeaning

For material to be ‘demeaning’ under clause 1.9.7 of the Code, the depiction or description of a person must be ‘a serious debasement’ and that serious debasement must be ‘sexual in nature’.

The promotion contained no depiction or description of a sexual nature and this part of clause 1.9.7 of the Code does not apply.

Highly exploitative

For material to be ‘exploitative’ under clause 1.9.7 of the Code, the material must clearly appear to ‘purposefully debase1 or abuse2 a person or group of persons for the enjoyment of others’.

The ACMA considers that the promotion did not present the contestant in a ‘highly exploitative manner’:

The ACMA’s view is that consent and pre-knowledge are key factors in deciding whether the involvement of participants in programs like The Biggest Loser: The Next Generation presents them in ‘a highly exploitative manner’.

The promotion was for the program The Biggest Loser, a popular program that follows a well-known format, with particular audience and contestant expectations of the treatment of contestants. Michelle’s behaviour towards Brett in the promotion was in keeping with the generally-understood format of the program.

1 The Macquarie Dictionary online relevantly defines ‘debase’ as: ‘to lower in rank or dignity’.2 The Macquarie Dictionary online relevantly defines ‘abuse’ as: ‘to do wrong to; act injuriously towards’.

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Contestants in the program are willing participants who are well aware of the likely physical and emotional challenges in store – contestants appreciate that the personal trainers will use strong motivational techniques to encourage them to persevere with the exercise regime.

Michelle was firm but not aggressive in pushing Brett to his physical limit, commenting that he should ‘stop embarrassing’ himself, and, finally, telling him to ‘get out!’

As the promotion was not ‘highly exploitative’ within the meaning of clause 1.9.7 of the Code, the licensee did not breach clause 1.9.7 of the Code.

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