Was the decision to punish the Nine Network over airing racy same-sex love scenes a case of homophobic double-standard or confusion between two different classification systems?

The Australian Communications and Media Authority (ACMA) announced on Tuesday that Nine’s digital channel GO! had breached the code of practice by airing an episode of US soap Dante’s Cove late last year. The finding sparked calls of homophobia, with Nine’s classification chief Richard Lyle saying he was “annoyed” by the decision given “we’d shown exactly the same visuals implying rear entry intercourse between a male and a female”.

The episode cited by ACMA featured scenes of simulated fellatio and sexual intercourse between two males and was classified ‘AV’ by GO!. The episode’s consumer advice warned viewers of ‘Supernatural Themes’, ‘Strong Sex Scenes’ and ‘Strong Violence’.

The commercial TV industry code of practice classification for AV states: “Visual depiction of intimate sexual activity may contain detail but must only be implied”. According to ACMA’s investigation report, the program “contained a visual depiction of intimate sexual behaviour”, amounting to a breach.

Dante’s Cove was already available on DVD in Australia before GO! broadcast the offending episode, which was classified with an MA rating by the Classification Board. Lyle explained to Crikey: “They said the violence was accommodated by the MA rating and the sex scenes would have been accommodated by an M rating.”

Nine subsequently made the decision to classify Dante’s Cove AV in order to account for the program’s main advisory concern, violence. In its ruling, ACMA actually states Nine should not have relied on the Classification Board decision:

“While the reasoning of the Classification Board may be one factor that licensees may consider when determining the proper classification of a program, ultimately the assessment will need to comply with the Television Classification Guidelines.”

ACMA media manager Donald Robertson told Crikey the commercial TV industry code of practice is distinct from the scheme used by the Classification Board, and that there are slight differences between the two.

“The TV classification guidelines are more restrictive than the film guidelines — an MA for film is stronger than an MA for TV,” he said.

Lyle disagrees. He said the only difference between the two codes is the amount of detail. The TV industry code and the Classification Board  have the same classification levels (G, PG, M, MA) but are applied differently.

“There really is no difference between the two codes but there is more depth to the industry code,” he told Crikey. “That’s why, when they want to find us in breach, they can read more into the TV code and pick at the details.”

Lyle maintains the episode’s sexual content was justified by context and was “discreetly simulated”, as per the commercial TV industry’s code of practice.

Gay groups insist there is a double standard at play. As one prominent rights advocate told Crikey: “There is a double standard on gay sex and relationships running right through Australian society, from the front-page gay-sex panics beloved of the tabloids to the inequality enshrined in the Marriage Act.”