BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Te Hikoi Mahanga – included footage of a car performing burnouts on a public road – presenters shown laughing and cheering – allegedly in breach of law and order

Findings
Standard 2 (law and order) – item promoted, glamorised and condoned illegal behaviour – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]  A programme called Te Hikoi Mahanga was broadcast on Māori TV at 8.30pm on Thursday 8 January 2009. During the broadcast, the presenters were shown surfing at various New Zealand beaches, and talking to some of the local people.

[2]   At one point, the programme’s presenters were shown talking to a group of young men who had also been surfing. The young men then got into their car and began performing “burnouts” on the road. Their car was shown losing traction and spinning around in circles, with clouds of white smoke coming from the tyres. After spinning around several times, the car regained traction and drove away. While this was happening, the presenters, who were sitting in their own car, were shown cheering, laughing and waving in support.        

Complaint

[3]   Ross Hunt made a formal complaint to Māori TV, the broadcaster, alleging the programme breached Standard 2 (law and order). He argued the item filmed the illegal act of a car performing a burnout on a public road and that the presenters were shown condoning and promoting the young men’s behaviour.

Standards

[4]   Māori TV assessed the complaint under Standard 2 of the Free-to-Air Television Code of Broadcasting Practice. It provides:

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

Broadcaster's Response to the Complainant

[5]   The broadcaster stated that, while the behaviour displayed in the programme was not desirable, it could not be seen to be “glamorising serious crime as contemplated by Standard 2”. It declined to uphold the complaint that the programme breached standards relating to law and order.

[6]   Despite this, it said that it had spoken to the programme’s producer who had assured it that such actions and behaviour would not be displayed again on Te Hikoi Mahanga.

Referral to the Authority

[7]   Dissatisfied with Māori TV’s response, Mr Hunt referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He stated that he did not agree with the broadcaster’s decision and pointed out that it was an offence to perform a burnout on a public road. He noted that the segment was replayed during the end of season episode broadcast on 18 January 2009.

Authority's Determination

[8]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 2 (law and order)

Preliminary observation

[9]   In its decision, Māori TV stated that the behaviour displayed in the programme could not have been seen as glamorising “serious crime as contemplated by Standard 2”. The Authority points out that Standard 2 relates to more than just serious crime. The standard applies to any illegal behaviour regardless of the perceived level of seriousness. 

Standards complaint

[10]   Standard 2 is based on section 4 of the Broadcasting Act 1989, which states that broadcasters are responsible for maintaining standards consistent with “the maintenance of law and order”. The Authority has previously stated (e.g. Decision No. 2005-133) that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity. While the Authority cannot assume the role of a criminal court and determine whether a crime has been committed, it is clear that Parliament intended for the Authority to consider complaints such as this. Accordingly, it takes a commonsense approach in determining whether a broadcast has promoted, glamorised, or condoned criminal activity.

[11]   The Authority notes that section 22A(3) of the Land Transport (Unauthorised Street and Drag Racing) Amendment Act 2003 states:

A person must not, without reasonable excuse, operate a motor vehicle on a road in a manner that causes the vehicle to undergo a sustained loss of traction unless the operation of the vehicle in that manner is authorised by law.

[12]   The Authority considers that, to the reasonable viewer, the ingredients of the above offence would appear to have been met. Because the programme’s presenters were shown laughing and cheering the young men on, the Authority considers that their actions amounted to promoting and condoning illegal activity.

[13]   Having reached this conclusion, the Authority must consider whether to uphold this complaint as a breach of Standard 2.

[14]   The Authority acknowledges that upholding the Standard 2 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. It acknowledges the importance of section 14 and the values underlying the right to freedom of expression.¹ However, “the right of freedom of expression is not an unlimited and unqualified right”.² The Authority must ensure that, if it is considering upholding this part of the complaint, the restriction on the broadcaster’s right to freedom of expression would be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[15]   First, the Authority must assess whether, by upholding this complaint, the limit placed on the broadcaster’s section 14 right would be “prescribed by law”. Parliament has recognised the importance of maintaining standards of law and order in section 4(1)(b) of the Broadcasting Act 1989, which states:

(1) Every broadcaster is responsible for maintaining in its programmes and their presentation, standards that are consistent with -

(b) The maintenance of law and order.

[16]   Further, the Codes of Broadcasting Practice have been developed in conjunction with broadcasters and approved by the Authority. The requirement in Standard 2 that broadcasters are responsible for maintaining standards consistent with the maintenance of law and order is drafted in accordance with Parliament’s intention. For these reasons, the Authority considers that upholding a complaint under Standard 2 (law and order) would be prescribed by law.

[17]   Second, the Authority must consider whether upholding the complaint would be a justified limitation on the broadcaster’s right to freedom of expression. In the Authority’s view, the law and order standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society. Accordingly, the Authority considers that upholding a complaint under Standard 2 would place a justified limitation on a broadcaster’s right to freedom of expression.

[18]   The Authority must now consider whether it would be a reasonable and proportionate limit on Māori TV’s freedom of expression to uphold a breach of Standard 2 on this occasion. In this case, the Authority has found that the scenes of the young men performing burnouts on a public road while the presenters laughed and cheered them on amounted to promoting and condoning illegal behaviour. In these circumstances, it considers upholding this complaint clearly promotes the objective of Standard 2 (as outlined in paragraph [17] above).

[19]   Accordingly, the Authority finds that upholding the complaint places a justified and reasonable limit on Māori TV’s freedom of expression. It therefore upholds the complaint that the scenes contained in Te Hikoi Mahanga breached Standard 2.

For the above reasons the Authority upholds the complaint that the broadcast by Māori TV of an episode of Te Hikoi Mahanga on 8 January 2009 breached Standard 2 of the Free-to-Air Television Code of Broadcasting Practice.

[20]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to do so on this occasion. The Authority considers that the action taken by the broadcaster in speaking directly with the programme’s producer to ensure that such actions would not be displayed on Te Hikoi Mahanga again was appropriate and sufficient in the circumstances. It also considers that this decision is sufficient to remind broadcasters of their obligations in respect of the law and order standard.

Signed for and on behalf of the Authority

Joanne Morris
Chair
26 March 2009

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.          Ross Hunt’s formal complaint – 12 January 2009
2.         Māori TV’s response to the formal complaint – 19 January 2009
3.         Mr Hunt’s referral to the Authority – 23 January 2009
4.         Māori TV’s response to the Authority – 30 January 2009

¹See Decision No. 2008-040

²P v D and Independent News Auckland Ltd [2000] 2 NZLR 591, per Nicholson J