THE FACTS
Keeping Up with the Kardashians is a reality show that follows the lives of members of the Kardashian-Jenner family, primarily mother Kris Jenner and her adult daughters Kim, Khloé and Kourtney Kardashian. Each episode features multiple “plotlines” as the camera crews follow around the various family members as they go about their lives. Scenes of their daily lives are interspersed with short interview segments in which the personalities speak directly to the camera and provide commentary on the activities going on in the episode.
On October 23, 2013 at 4:00 pm, E! broadcast episode 1 of season 8 of the series, entitled “We’re Having a Baby”. E! rated the episode 14+. It did not provide any viewer advisories.
One of the plotlines of the episode involved Kourtney’s boyfriend Scott Disick trying to convince her to let him perform anal sex on her. The episode included numerous conversations about the issue amongst the various personalities on the show. In almost all cases, they used the euphemism “back door” and “back-dooring it” to refer to the act. In one scene, Kourtney used a carrot and chocolate donut to simulate the act, following which Scott used a cucumber and a candy gummy ring. In another scene, Kourtney read a text message that she received from Scott, “Knock, knock. Who’s there? It’s my penis knocking on your back door.”
Later in the program, Kourtney suggested to Scott that she would let him perform anal sex on her if he let her do it to him first with a dildo. Scott was clearly very uncomfortable with the idea, so, with the goal of making him even more squeamish, Kourtney explained and simulated with her fist what she planned to do to him:
Kourtney: Yeah. I’ll go like this [makes circular motion with her fist].
Scott: How is this –
Kourtney: Nice and slow.
Scott: How does the sound of you breaking my ass[bleep] virginity?
Kourtney: I’ll do it nice and slow and then [makes click noise & thrusts fist forward].
Scott: Eww. [makes high-pitched squeak]
Kourtney: Pop it right on in.
A subsequent scene showed Kourtney strapping on a purple dildo, although the phallus itself was blurred throughout the scene. Kourtney, wearing the dildo, then approached Scott and chased him around the house.
Scott: For wha-, what are you going to do with this? [points at dildo]
Kourtney: Break you open. [takes purple dildo off harness & holds it in her hand]
Scott: Are you insane?
Scott then agreed to stop pursuing the issue, which was the result Kourtney was seeking. In an interview segment, she commented about the dildo, “I’m definitely going to hold on to this little toy because if Scott ever forgets, I’m whipping that thing out and then I’ll shove it right in there.” (A more detailed description and transcription of the relevant scenes can be found in Appendix A.)
The CBSC received a complaint about the episode on October 23. The complainant’s concern was that the discussions about anal sex were not appropriate for broadcast in the afternoon or early evening. E! responded on November 6, noting that “the sexual act itself is not explicitly described [...]; rather, the subject is addressed through euphemisms”. The station did acknowledge, however, that “the episode should have been accompanied by a viewer advisory specifying mature content” and that “steps have been taken to correct the oversight.” The complainant filed his Ruling Request on November 6, reiterating his view that the program should not be on during the day and that an advisory is not sufficient to prevent children from watching it. (The full text of all correspondence can be found in Appendix B.)
THE DECISION
The National Specialty Services Panel examined the complaint under the following provisions of the Canadian Association of Broadcasters’ (CAB) Code of Ethics:
Clause 10 – Television Broadcasting
Clause 11 – Viewer Advisories
To assist consumers in making their viewing choices, when programming includes mature subject matter or scenes with nudity, sexually explicit material, coarse or offensive language, or other material susceptible of offending viewers, broadcasters shall provide a viewer advisory
The Panel Adjudicators read all of the correspondence and viewed the challenged broadcast. The Panel concludes that E! did not breach Clause 10(a), but it did breach Clause 11(b) for failing to provide viewer advisories during the program.
Sexually Explicit Material
Although the Panel Adjudicators recognize that the broadcast contained a number of scenes with allusions to anal sex, there were no explicit or graphic elements. The references consisted of innuendo, and in the scene involving the dildo, the sex toy was blurred. The Panel Adjudicators therefore conclude that nothing in the broadcast was so explicit as to warrant a post-9:00 pm timeslot; accordingly, the broadcaster did not violate Clause 10(a) of the CAB Code of Ethics.1
Advisories
Even if a broadcast is not so sexually explicit as to necessitate a post-9:00 pm timeslot, there are certain types of content that nevertheless require viewer advisories when aired before that hour; namely, programming that is unsuitable for children aged 12 and under. The Panel concludes that this episode of Keeping Up with the Kardashians falls into that category.
The Adjudicators, therefore, find that the broadcaster should have, in addition to the rating icon, included an advisory alerting the viewers to the mature subject discussed and to the sexually suggestive content of the broadcast. The advisory should have been aired at the beginning of the program and after every commercial break. In failing to do so, the broadcaster breached Clause 11(b) of the CAB Code of Ethics.2
Broadcaster Responsiveness
In all CBSC decisions, the Panels assess the broadcaster’s response to the complainant. The broadcaster need not agree with the complainant’s position, but it must respond in a courteous, thoughtful and thorough manner. In this case, E! provided a reply to the complainant, outlining its view of the broadcast. E! even acknowledged that it should have included a viewer advisory on the episode and committed to correct that oversight. The broadcaster fulfilled its obligations of responsiveness and, subject to the announcement of this decision, nothing further is required in this regard in this instance.
ANNOUNCEMENT OF THE DECISION
E! is required to: 1) announce the decision, in the following terms, once during prime time within three days following the release of this decision and once more within seven days following the release of this decision during the time period in which Keeping Up with the Kardashians was broadcast, but not on the same day as the first mandated announcement; 2) within the fourteen days following the broadcasts of the announcements, to provide written confirmation of the airing of the statement to the complainant who filed the Ruling Request; and 3) at that time, to provide the CBSC with a copy of that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by E!.
The Canadian Broadcast Standards Council has found that E! breached the Canadian Association of Broadcasters’ Code of Ethics in its broadcast of Keeping Up with the Kardashians on October 23, 2013. E! failed to provide a viewer advisory alerting viewers to the sexually suggestive content, as required by Clause 11(b) of the Code.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.
1 See the following decisions for other examples of programs that contained sexual innuendo but were not considered “explicit” enough to warrant a post-9:00 pm timeslot: CITY-TV re Blind Date (CBSC Decision 02/03-0570 & -0631, May 2, 2003); TQS re the movie Film de peur (CBSC Decision 02/03-0940, April 22, 2004); SRC re Bye Bye 2008 (CBSC Decision 08/09-0620+, March 17, 2009); MusiquePlus re Cliptoman (CBSC Decision 12/13-0387, June 3, 2013).
2 See the following decisions for other examples of programs that fell into this “unsuitable for children” category and therefore required advisories: CITY-TV re Blind Date (CBSC Decision 02/03-0570 & -0631, May 2, 2003); TQS re the movie Film de peur (CBSC Decision 02/03-0940, April 22, 2004); SRC re Bye Bye 2008 (CBSC Decision 08/09-0620+, March 17, 2009).