Destiny Television: Homosexuality, Religion and God – series of six programmes delivering religious sermons – denigration of and discrimination against homosexual and transsexual people – offensive – inconsistent with legislation – errors of fact – not impartial – TVNZ upheld complaint in part – apologised – removed series from repeat broadcast – dissatisfied with action taken on aspect upheld – dissatisfied with aspects not upheld
(1) Action taken on Standard 6 – insufficient – uphold
(2) Standard 2 Guideline 2a – did not involve principle of law – no uphold
(3) Standard 4, Standard 5 – not relevant – not a news, current affairs or other factual programme – no uphold
Complaints referred back to broadcaster under s. 13(1)(c) for further consideration of action to be taken
This headnote does not form part of the decision.
 A series of programmes entitled Destiny Television: Homosexuality, Religion and God was broadcast on TV2 at 6.30am on 30 and 31 July 2003 and 4, 5, 6 and 7 August 2003. During the sermons, the pastor, Brian Tamaki, commented on homosexuality and the Muslim faith, and made references to some named Members of Parliament.
 Mr Banks complained to Television New Zealand Ltd, the broadcaster, that the pastor’s comments denigrated members of the gay community and the Muslim faith and were offensive and hateful.
 The New Zealand Aids Foundation Inc (the Foundation) contended that during the series Pastor Tamaki delivered a sustained attack on the gay and lesbian community. These attacks, it argued, contravened the Broadcasting Act 1989 and the Code of Broadcasting Practice.
 In his complaint to TVNZ, Mr Bennachie also contended that aspects of the series were in breach of broadcasting standards.
 TVNZ maintained that the standards relating to good taste and decency, balance and accuracy were not relevant to its determination and that, in terms of the requirement for law and order, it was not qualified to address the legal issues raised by the complaints. TVNZ contended that the requirement for fairness was the overriding issue relevant to its decision and upheld this aspect of each of the complaints. It apologised to the complainants and advised them that the series would not be repeated.
 Dissatisfied with some of the aspects of the complaints which were not upheld, and with the action taken by TVNZ on the aspect which was upheld, the complainants referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold the complaints that the broadcast breached Standards 2, 4 and 5 of the Television Code. However, the Authority upholds the complaints that the action taken by TVNZ, having upheld aspects of the complaints, was insufficient.
 The members of the Authority have viewed the tapes of the programmes complained about and have read the correspondence which is listed in the Appendices. The Authority determines the complaints without a formal hearing.
 Destiny Television: Homosexuality, Religion and God was the title for a series of religious programmes featuring Pastor Brian Tamaki preaching to congregations at Destiny Churches in New Zealand. The programmes were broadcast on TV2 at 6.30am on 30 and 31 July 2003 and 4, 5, 6 and 7 August 2003. During the sermons, Brian Tamaki commented on homosexuality and the Muslim faith, and his comments included references to named MPs.
 Mr Banks complained to TVNZ, the broadcaster, that the message conveyed by Pastor Brian Tamaki discriminated against sections of the community on account of their sexual orientation and religious belief. He noted that Pastor Tamaki said:
 Mr Banks also noted that although Pastor Tamaki’s comments were opinion, they were not expressed in the context of a news, current affairs or factual programme.
New Zealand Aids Foundation
 The Foundation also contended that as the broadcasts were neither factual, news nor current affairs items, the standards relating to balance did not apply. However, it did argue that the broadcasts were likely to be offensive to a significant number of adult viewers and, by failing to provide appropriate warnings as to content, the broadcaster had breached the requirement for good taste and decency in Standard 1.
 The Foundation expressed concern that, notwithstanding the principles relating to freedom of expression, the broadcaster failed to respect the principle of non-discrimination enshrined in both the New Zealand Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990. The Foundation maintained that it was in this respect, that the broadcast breached Standard 2 of the Television Code. The Foundation wrote:
… this series of programmes will have the effect of increasing discrimination against gay and lesbian people in the viewing constituency to which these programmes are targeted.
 The Foundation contended that the broadcasts seriously and repetitively failed to deal justly and fairly with Tim Barnett MP and Georgina Beyer MP. It maintained that by so doing, the broadcaster clearly and improperly encouraged the denigration of, and discrimination against, sections of the community on the grounds of sexual orientation. The complainant considered the breach occurred on two fronts. In the first instance, it related to the named individuals and in the second instance the clearly identified “sub-groups”.
 Mr Bennachie contended that the broadcaster not only breached the balance, fairness and accuracy requirements of the Broadcasting Act, but it also failed to produce the fair and accurate programmes required by the Broadcasting Code.
 The complainant contended that by portraying gay men and lesbians as “lesser people deserving contempt and punishment”, the programme series raised issues of a controversial nature that breached the requirement for balance in Standard 4.
 He also claimed that the series breached the Standard 5 requirement for accuracy in a number of ways. In Mr Bennachie’s view, Pastor Tamaki was “not only making factual errors regarding the words used, but was twisting the words of the Bible to meet his own definitions”. Therefore, the complainant argued, the Pastor was misleading those who followed him or his church.
 Mr Bennachie noted a number of other facts referred to by Pastor Tamaki, which he contended were wrong. These included Pastor Tamaki’s claim that it was the Human Rights Act 1993 that “opened the door for all these perversions” and Pastor Tamaki’s interpretation of the softening of the word sodomite to homosexual and then to gay. He also disputed the figures used by Pastor Tamaki when relating the number of “sexually transmittable diseases”.
 Mr Bennachie concluded that Pastor Tamaki, by comparing lesbians and gay men to evil spirits, was encouraging denigration of, and discrimination against, the gay community.
 TVNZ assessed the complaints under Standards 1, 2, 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice as nominated by the complainants. The Standards and relevant Guidelines read:
Standard 1 Good Taste and Decency
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.
1b Broadcasters should consider – and if appropriate require – the use of on-air visual and verbal warnings when programmes contain violent material, material of a sexual nature, coarse language or other content likely to disturb children or offend a significant number of adult viewers. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.
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.
2a Broadcasters must respect the principles of law which sustain our society.
Standard 4 Balance
In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
4a Programmes that deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
5a Significant errors of fact should be corrected at the earliest opportunity.
5b Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.
Standard 6 Fairness
In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.
6a Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.
6g Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:
(i) factual, or
(ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or
(iii) in the legitimate context of a dramatic, humorous or satirical work.
 TVNZ explained to Mr Banks that, as a result of his complaint, it had reviewed all six programmes in the series Destiny Television: Homosexuality, Religion and God. It argued that it had an overriding obligation to ensure a balance between the legitimate expression of religious beliefs and unfair statements which were intolerant or prejudicial. TVNZ wrote:
He [Pastor Tamaki] nevertheless characterised the lifestyle of the gay community in terms of the word “perversion” – a noun which means “abnormal or unacceptable sexual behaviour”.
 TVNZ concluded that this assertion, which was made a number of times, denigrated the gay community as a whole and the specific references to MPs Tim Barnett and Georgina Beyer denigrated them as individuals. Therefore, TVNZ concluded, Pastor Tamaki’s assertions crossed the line between a “legitimate expression of belief and an unacceptable suggestion of intolerance”.
 In relation to that aspect of the complaint which related to the denigration of Mr Choudhary, TVNZ wrote that it:
… was not convinced that the reference to Mr Choudhary was sufficient to represent denigration of either the MP or of Muslims generally.
New Zealand Aids Foundation
 TVNZ advised that it had reviewed all six programmes in the series. The broadcaster reiterated the comments made to Mr Banks regarding the need to ensure a balance between “a legitimate expression of belief, and an unacceptable suggestion of intolerance”.
 TVNZ dealt, in the first instance, with Standard 6 of the Television Code. It concurred with the complainant that Pastor Tamaki had failed to deal fairly and justly with the gay community and, in addition, agreed that the pastor’s comments about named politicians were derogatory. TVNZ ruled that the programmes were in breach of Standard 6. The broadcaster stated that it had advised Destiny Television that the series of programmes complained about would not be repeated.
 Turning to Standard 1 of the Television Code, TVNZ acknowledged that Pastor Tamaki’s comments would have caused offence to many people. However, it said, the overriding concern related to the issue of “intolerance” which, in TVNZ’s view, was more appropriately dealt with under Guideline 6g of Standard 6. Therefore, TVNZ did not consider Standard 1 relevant to the complaint.
 In terms of Standard 2, TVNZ wrote:
It was the [complaints] committee’s view that it was not qualified to rule on whether religious sermons of this type shown in these six programmes breached principles of law.
 TVNZ reiterated that it had an obligation to ensure a balance between freedom of expression and an unacceptable level of intolerance. It reconfirmed its decision to uphold the complaint under Standard 6 of the Television Code.
 In terms of Standard 4 and Standard 5 of the Television Code, TVNZ referred to the specific requirement for news, current affairs and factual programmes. It argued that as the religious content of the Destiny Television series did not fall within any of these categories, neither standard was applicable to the complaint.
 Mr Banks informed the Authority that while TVNZ had acknowledged the offensive nature of the broadcast, its decision, to ban the series from being repeated, did not go far enough.
New Zealand Aids Foundation
 The Foundation concurred with TVNZ’s response in relation to Standard 1 of the Television Code and acknowledged that no further consideration of this aspect of the complaint was necessary.
 However, the Foundation was dissatisfied with TVNZ’s conclusion that it was not qualified to rule on the complaint under Standard 2 of the Television Code. The Foundation referred to New Zealand legislation and several decisions of the Canadian Broadcasting Standards Council which it considered were relevant to, and had not been considered by, the broadcaster in its ruling.
 The Foundation also expressed dissatisfaction with the penalty imposed by TVNZ. In its opinion the breach, in “each” of the six programmes, represented the “most extreme attack on the integrity of the gay and lesbian community that has ever been broadcast on New Zealand television”. The penalty, which prohibited Destiny Television from broadcasting the series again, particularly when it had given no indication that it intended to do so, was in the complainant’s view meaningless. The complainant considered that such an inadequate penalty was unlikely to provide any disincentive for the inclusion of similar content in future programmes.
 Mr Bennachie expressed his disappointment with TVNZ’s response under Standard 5 and Standard 6 of the Television Code. In terms of Standard 6, he considered that the penalty imposed by the broadcaster, after upholding the complaint in each of the six programmes in the series, was insufficient. Similarly, TVNZ failed, according to Mr Bennachie, to deal appropriately with the errors of fact expounded by Pastor Tamaki.
 Mr Bennachie disagreed with the broadcaster that Standard 5 was not relevant to his complaint. He argued that “a sermon, preached on a daily basis, is a current affairs programme, especially when it deals with matters that are most certainly ‘questions of a controversial nature’”.
 While noting the complainants’ frustration, TVNZ argued that it had an ongoing responsibility to preserve the right to freedom of expression, particularly religious expression which, it opined, lay at the heart of the concept of democracy.
 The broadcaster maintained that its decisions on complaints of this nature were made on a case by case basis and depended to a large extent on the context in which the comments were made, and the manner in which they were delivered.
 TVNZ indicated that, in addition to prohibiting a replay of the series Homosexuality, Religion and God, it had advised Destiny Television that comments such as those complained about were “totally unacceptable”.
 Mr Banks again noted his concern that TVNZ had not gone far enough in its censure of the programmes complained about. He wrote:
… there is nothing in TVNZ’s decision that will prevent Mr Tamaki from creating and airing new episodes of Destiny Television on the same subject with the same level of offensiveness.
New Zealand Aids Foundation
 The Foundation expressed its surprise at TVNZ’s assertion that “a religious series should not require an episode by episode assessment” and “would be unlikely to stray into areas where programme standards may be at risk”. In the Foundation’s view, the title itself, “Homosexuality, Religion and God”, should have given the broadcaster an indication of possible controversy.
 The Foundation also commented on the issue of jurisdiction and concurred with TVNZ that the Destiny Television series was similar to the broadcasts on Triangle Television, such as the Voice of Islam, on which the Authority had previously ruled.
 Before determining the substantive matters referred to the Authority by the complainants, the Authority addresses the issue of its jurisdiction. The Authority is required to determine whether the Destiny Television programmes are “Advertising Programmes” within the definition of the Broadcasting Act 1989. Under the Act (s.8 (2) and (3) and s.21 (3)), such programmes are normally the responsibility of the Advertising Standards Complaints Board. Under the Act an “Advertising Programme” means a programme or part of a programme that:
(i) Is primarily intended to promote –
(A) The interest of any person; or
(B) Any product or service for the commercial advantage of any person; and
(ii) Is a programme or part of a programme for which payment is made, whether in money or
 The Authority was advised by TVNZ that the programme was paid for by a sponsor. Accordingly, the Authority was only required to address the issue raised by subparagraph (i). The issue is whether each programme was primarily intended to promote the interest of any person or any product or service for the commercial advantage of any person.
 The Authority is of the view that the series did not intend primarily to promote (A) the interest of any person or (B) any product or service for the commercial advantage of any person because:
(A) the extent to which it promoted Destiny Church/Pastor Tamaki’s interests is a secondary intention of the series. The Authority considers the primary purpose was to inform viewers of Destiny Church/Pastor Tamaki’s particular religious views; and
(B) (i) the religious message of the series is not, in the Authority’s view, readily described as a “product or service”; and
(ii) in so far as the programmes in the series served Destiny Church/Pastor Tamaki’s commercial advantage, again, that was not their primary intention. Rather, as has been noted, their primary intention was to inform viewers of the particular religious views of the Church and Pastor Tamaki.
 The definition of an “Advertising Programme” was considered by the Court of Appeal in Electoral Commission v. Cameron and Ors. In its judgment, the Court of Appeal held that the public educational advertisements of the Electoral Commission, an independent statutory body, did not fall within the statutory definition of advertising programmes because they did not promote the interest of any person or any product or service for the commercial advantage of any person. The Authority notes that, despite the differences between the two situations, its conclusion about the Destiny Television series is broadly consistent with the Court of Appeal decision.
 Standards 4 and 5 of the Television Code are relevant to the programmes which are the subject of this complaint only if those programmes can be categorised as news, current affairs or factual programmes. The Destiny Television programmes are not news or current affairs programmes. In the Authority’s view, the programmes are not “factual programmes” either, for the following reasons.
 The Code does not define a “factual programme” and the Authority has not previously articulated its position on the meaning of this phrase. However, it makes three points. First, that it is the content of a particular programme which determines whether it is “factual” and not any classification suggested by, for example, the programme title or prior expectations about a particular series. Secondly, the Authority has stated clearly that standards relating to balance and accuracy do not apply to fictional programmes . Thirdly, the Authority does not consider the phrase “factual programmes” covers all those programmes which are neither “news and current affairs” programmes nor fictional programmes.
 The Authority considers that the phrase “factual programmes” refers to a narrower class of programmes and excludes what may be called “opinion programmes”. Opinion programmes include programmes that promote the expression of an ideology based on religious, cultural or political beliefs. The Authority’s reasoning is as follows.
 Factual programmes are similar to news and current affairs programmes in that they are based on or concerned with facts. That much is apparent from Standard 5 of the Television Code which, by referring to “news, current affairs and other factual programmes”, reveals that news and current affairs are a sub-set of the broader class of “factual programmes”. Standard 5 also provides that news, current affairs and other factual programmes must be “impartial and objective at all times”. Those words reveal that such programmes cannot be of a kind that is designed to be partial or subjective. Rather, programmes of that kind are within the category that the Authority describes as “opinion programmes”. Any opinion expressed in such a programme is not, therefore, expressed in a “factual programme”.
 Having considered the content of each of the programmes in the Destiny Television series, the Authority concludes that none can be classified as “factual programmes”. They are clearly sermons based on Pastor Tamaki’s religious beliefs. Accordingly, Standards 4 and 5 of the Television Code are not relevant to the Authority’s determination and it declines to uphold the complaints.
 Standard 2 of the Television Code requires that broadcasters respect the principles of law by maintaining standards which are consistent with the maintenance of law and order. The Authority observes that Standard 2 does not confer on it a general power to determine whether a broadcaster has acted unlawfully.
 In the Authority’s view the Foundation’s complaint relates to the breach of the rights of minority groups, which are protected under the Human Rights Act 1993 and the Bill of Rights Act 1990. In the Authority’s opinion, a determination of this nature is not within its mandate: rather it is a matter for the expert bodies charged with the statutory function to make such determinations. Therefore, the Authority declines to uphold this aspect of the complaint.
 The Authority notes that TVNZ upheld the complaints that each of the six programmes in the Destiny Television series breached Standard 6 of the Television Code. TVNZ accepted that the crux of the complaints focussed on Guideline 6g of Standard 6. The broadcaster concluded that Pastor Tamaki’s comments were not only unfair to the named MPs, but also specifically denigrated and discriminated against those living “the gay lifestyle”. TVNZ apologised to the complainants and advised Destiny Television that the series of programmes would not be repeated.
 The Authority considers it appropriate to record the nature of the comments and the type of broadcast that led to TVNZ’s decision to uphold the complaints, with which the Authority agrees. For example it notes TVNZ’s submission where it stated that Pastor Tamaki characterised the gay community in terms of the word “perversion”, a noun which means “abnormal or unacceptable sexual behaviour”. The Foundation noted the following two aspects:
 Guideline 6g (ii) of Standard 6 states that the guideline is not intended to prevent the broadcast of “genuinely held opinion in factual programmes”. The Authority has explained that the programmes in the Destiny Television series are not “factual programmes” within the meaning of the Television Code, and therefore are not protected by this exemption. Consequently, having noted the serious nature of the comments, their cumulative effect and the context in which they were made, the Authority concludes that TVNZ’s action, having upheld the complaints in relation to Standard 6, was insufficient. The Authority considers that the breach of the broadcasting standards, in each of the six programmes was serious and that TVNZ’s action did not demonstrate sufficient appreciation of the gravity of the transgression.
 The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by “such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society”. For the reasons given in Decision Nos. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion.
 For the reasons given in this decision, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of the complaints, including the nature of the complaints.
For the reasons given above, the Authority upholds the aspect of the complaint that Television New Zealand Limited failed to take sufficient action, when it upheld the complaints under Standard 6 about the broadcast of the series Destiny Television: Homosexuality, Religion and God broadcast on 30 and 31 July and 4, 5, 6 and 7 August 2003.
It declines to uphold the complaints that the broadcast breached Standards 2, 4 and 5 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaints about the inadequacy of the action taken by the broadcaster the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It is not the Authority’s practice, when it upholds a complaint that the action taken was insufficient, to consult with the parties about the order it makes. Nevertheless, all three complainants expressed their concern with TVNZ’s failure to appraise the programmes before they were broadcast. The Authority shares that concern. Accordingly, it makes the following order.
Pursuant to section 13(1)(c) of the Broadcasting Act 1989, the Authority refers back to Television New Zealand Limited the complaints about the action it took having upheld the complaints under Standard 6, to consider and determine the action it should now take in accordance with the following directions:
1. That, for the purpose of preventing the recurrence of breaches of broadcasting standards such as those which are the subject of these decisions, TVNZ review its policy and processes for appraising programmes of this nature prior to broadcast; and
2. That, after that review, TVNZ advise the Authority and the complainants of the revisions that have been made to its policy and processes.
Signed for and on behalf of the Authority
15 December 2003
The following correspondence was received and considered by the Authority when it determined the complaint from Mr Banks:
1. Mr Banks’ Complaint to Television New Zealand Ltd – 9 August 2003
2 TVNZ’s Response to the Formal Complaint – 28 August 2003
3. Mr Banks’ Referral to the Broadcasting Standards Authority – 4 September 2003
4. TVNZ’s Response to the Authority – 15 September 2003
5. Mr Banks’ Final Comment – 21 September 2003
The following correspondence was received and considered by the Authority when it determined the complaint from The New Zealand Aids Foundation Inc:
1. The New Zealand Aids Foundation Complaint to Television New Zealand Ltd
– 28 August 2003
2. TVNZ’s Response to the Formal Complaint – 15 September 2003
3. The New Zealand Aids Foundation Referral to the Broadcasting Standards Authority
– 23 September 2003 (plus attachments)
4. TVNZ’s Response to the Authority – 8 October 2003
5. The New Zealand Aids Foundation Final Comment – 21 October 2003
6. TVNZ’s Response to the Authority’s Request for Further Information – 22 October 2003
7. The New Zealand Aids Foundation Submission to TVNZ’s Response for Further
Information – 24 October 2003 (plus attachments)
1. Mr Bennachie’s Complaint to Television New Zealand Ltd – 4 September 2003
2. TVNZ’s Response to the Formal Complaint – 19 September 2003
3. Mr Bennachie’s Referral to the Broadcasting Standards Authority – 30 September 2003
4. TVNZ’s Response to the Authority – 8 October 2003