BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) and 8(1B)(b)(ii) of the Broadcasting Act 1989
Breakfast – presenter made comments about the nationality of the Governor General – allegedly in breach of standards relating to good taste and decency, controversial issues, accuracy, fairness, discrimination and denigration, and responsible programming – broadcaster upheld complaints under Standards 1, 6 and 7 – action taken allegedly insufficient

Findings
Standards 1 (good taste and decency), 6 (fairness) and 7 (discrimination and denigration) – serious breach of broadcasting standards warranted more immediate response from broadcaster but remedial action taken in days following broadcast was reasonable – action taken sufficient – not upheld

Standard 4 (controversial issues – viewpoints) – no discussion of a controversial issue of public importance – not upheld

Standard 8 (responsible programming) – Breakfast was an unclassified news and current affairs programme – comments would not have alarmed or distressed viewers – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   During an episode of Breakfast, broadcast on TV One on the morning of 4 October 2010, presenter Paul Henry conducted an informal interview with the Prime Minister, John Key. While questioning the Prime Minister about the upcoming appointment of a new Governor General, Mr Henry made comments about the nationality of the current Governor General, Sir Anand Satyanand. The following exchange took place between Mr Henry and the Prime Minister:

Henry:    Finally, it’s almost time is it, for you to choose a new Governor General?

Key:       Yes. What happens is that we have to choose [a new Governor General] because the
             current Governor General, Anand Satyanand, his term finishes in the middle of next year.

Henry:    Is he even a New Zealander?

Key:       Ah, yes he is a New Zealander.

Henry:    Are you going to choose a New Zealander who looks and sounds like a New Zealander this
             time?

Key:       Well in fact every Governor General since Porritt has been a New Zealand-born New
             Zealander.

Henry:    Are we going to go for someone who is more like a New Zealander this time though?

[2]   The Prime Minister joked about appointing Mr Henry as Governor General and they discussed the possible list of candidates for the position.

Complaints

[3]   Robert Adams, Sue Godinet, Jan McNamara, Gavin Millar and Michael Yarrall made formal complaints to Television New Zealand Ltd, the broadcaster, alleging that the item breached broadcasting standards.

Mr Adams’ complaint

[4]   Mr Adams argued that the broadcast breached standards relating to good taste and decency, controversial issues, discrimination and denigration, accuracy, fairness and responsible programming. The complainant said that Mr Henry’s comments were “racist” and argued that he had a “public role not to denigrate other people or cultures”. Mr Adams contended that the situation had been made worse by a subsequent media release in which a TVNZ spokesperson said that Mr Henry simply “said the things that we think”.

Ms Godinet’s complaint

[5]   Ms Godinet complained that the item breached standards relating to good taste and decency, discrimination and denigration and responsible programming. She argued that by broadcasting the comments, TVNZ had allowed Mr Henry to “publicly humiliate people of Indian origin”. Ms Godinet considered that TVNZ sought to “normalise” such attitudes, and argued that by spreading such “hate” and “intolerant beliefs” it created a “climate of disrespect”. The complainant argued that, given TVNZ’s role as a “hugely influential” broadcaster, it should have acted more responsibly.

Ms McNamara’s complaint

[6]   Jan McNamara argued that the Breakfast item breached standards of good taste and decency, discrimination and denigration and accuracy. She considered that the comments encouraged discrimination and denigration based on race because Mr Henry’s questioning whether the Governor General was a New Zealander “inferred that only those who conform to a limited range of physical attributes common to certain racial and/or ethnic groups deserve to be called New Zealanders”. She said that this was “insulting to most New Zealanders who believe that New Zealand is a richer nation because we do not all look the same”.

[7]   Ms McNamara was of the view that the presenter had a history of making derogatory comments and argued that his behaviour was supported by TVNZ. The complainant rejected Mr Henry’s subsequent on-air apology, in which he said that he was sorry “if” he had offended people. In her view, this inferred that viewers should not have been offended by the comments and further abused and denigrated the Governor General. With regard to Standard 5, Ms McNamara argued that the comments were inaccurate because Sir Anand Satyanand was a New Zealander that was born and raised in New Zealand.

Mr Millar’s complaint

[8]   Mr Millar complained that the broadcast breached the discrimination and denigration standard. He argued that Mr Henry’s comments were “extremely racist and narrow-minded”. The suggestion that Sir Anand Satyanand did not look or sound like a New Zealander was “appalling” and inferred that anyone who looked foreign did not “belong” in New Zealand, he argued. He contended that such viewpoints should not have been broadcast on television, let alone by a publicly funded broadcaster.

Mr Yarrall’s complaint

[9]   Mr Yarrall complained that the comments breached standards relating to good taste and decency, controversial issues, discrimination and denigration and responsible programming.

[10]   The complainant argued that questioning the Governor General’s nationality based on his race and the colour of his skin was not in good taste or decent. He considered that Mr Henry’s comments “were not just offensive to Sir Anand Satyanand, but to virtually all non-white New Zealanders as well as many white New Zealanders”.

[11]   With regard to Standard 4, Mr Yarrall argued that the comments presented an “extreme view point” that went unchallenged on Breakfast. Given that it was a news and current affairs programme, the comments had the potential to influence a large number of people, he argued. The complainant stated that “New Zealand is a country slowly coming to grips with its multicultural make-up, and extreme viewpoints such as this will only polarise opinion and lead to greater disharmony and social unrest in the country”.

[12]   Mr Yarrall considered that the Governor General had been treated unfairly on the programme. He argued that “attacking” a person on the basis of their race was “unacceptable in today’s society”, especially when the person being “attacked” was not present to defend themselves.

[13]   The complainant contended that although Standard 7 allowed for the expression of genuinely held opinion, that did not encapsulate encouraging discrimination against a section of the community “on account of race, or as a consequence of legitimate expression of religion or culture”.

[14]   Turning to the responsible programming standard, Mr Yarrall contended that the programme was presented in such a way as to cause panic, unwarranted alarm and undue distress “to any New Zealander who was not white”. Mr Yarrall stated:

Having one of the most influential public figures in New Zealand effectively say someone is not a New Zealander because of their culture and race has the potential to make a large number of the population feel isolated, discriminated against and concerned about physical and verbal abuse from Mr Henry’s supporters or racist groups.

Standards

[15]   Standards 1, 4, 5, 6, 7 and 8 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

Standard 8 Responsible Programming

Broadcasters should ensure programmes:

• are appropriately classified;
• display programme classification information;
• adhere to timebands in accordance with Appendix 1;
• are not presented in such a way as to cause panic, or unwarranted alarm or undue distress; and
• do not deceive or disadvantage the viewer.

Broadcaster's Response to the Complainants

[16]   TVNZ agreed that the broadcast breached Standards 1, 6 and 7 and accordingly upheld those aspects of the complaints.

[17]   With regard to good taste and decency, TVNZ stated that to constitute a breach of Standard 1, the broadcast material must be unacceptable to a significant number of viewers in the context in which it was shown, including the time of broadcast, the programme’s target audience, its classification and the use of warnings. The broadcaster agreed that the Breakfast item would have offended and distressed a significant number of viewers and therefore upheld the Standard 1 complaints.

[18]   TVNZ stated that Standard 6 required broadcasters to deal fairly with any person taking part or referred to in programmes. It said that Mr Henry’s comments “questioned the suitability of the Governor General because of his name and ethnicity” and noted that Sir Anand Satyanand had “felt compelled to issue a statement in regard to his nationality because of the broadcast”. Accordingly, TVNZ found that the item was unfair to the Governor General and it agreed that Standard 6 had been breached.

[19]   The broadcaster found that the “inference behind Mr Henry’s comments encouraged discrimination against New Zealanders not of a particular ethnicity (even though the comments related to Sir Anand Satyanand and were incorrect)”. Accordingly, TVNZ upheld a breach of Standard 7.

[20]   TVNZ apologised to the complainants for its breaches of Standards 1, 6 and 7. It said that as a result of the comments it had reviewed its editorial policies and presenter code of conduct, had suspended Mr Henry from Breakfast for two weeks without pay, and had publicly denounced the comments and apologised to viewers. It noted that Mr Henry had subsequently resigned from Breakfast.

[21]   The broadcaster also noted that Mr Henry had personally apologised to Sir Anand Satyanand in a media statement on the day of the broadcast, and that on 5 October 2010 he had made the following apology on Breakfast:

I have something very important to say. Yesterday a lot of people got very upset about a comment that I made regarding the Governor General when I was talking to the Prime Minister, you may have seen it. I would like you all to  know that I have the greatest respect for Sir Anand Satyanand. I don’t know him personally, but I understand that his reputation is beyond reproach. He is highly respected both in judicial circles as a former judge and as the Queen’s representative here in New Zealand. He has done a very fine job as Governor General and I am sincerely sorry if I seemed disrespectful to him. That was not what I intended and I certainly didn’t intend to sound racist. It was wrong for me to ask the questions that I did.

Sir Anand was born in New Zealand. His lineage as far as I can ascertain is far more dignified than mine, which makes him a better candidate for Governor General than me. Most people think I’m British but the truth is much, much worse than that. Like the Governor General, I was born in New Zealand. However, I’m at least half what they colloquially call in Europe a “Gypo”. So let me make it quite clear, I will never apologise for causing outrage. However I will and do apologise for causing real hurt and upset to anyone, no matter what their background, who works to make this country a better country. So in that spirit, I apologise unreservedly to Sir Anand and his family. He is a very distinguished man. I am the Gypo television presenter.

[22]   The broadcaster concluded that it had taken sufficient action having upheld the complaints under Standards 1, 6 and 7.

[23]   TVNZ declined to uphold the complaints under Standards 4, 5 and 8.

[24]   The broadcaster did not consider that the nationality of Sir Anand Satyanand was a “controversial issue of public importance” for the purposes of Standard 4, which it said had been defined as one which had topical currency and excited conflicting opinion or about which there has been ongoing public debate.¹ TVNZ argued that even if the issue was “controversial” and of “public importance”, the Prime Minister provided balance to Mr Henry’s question by pointing out that the Governor General was in fact a New Zealander. For these reasons, the broadcaster declined to uphold the Standard 4 complaints.

[25]   Turning to Standard 5, TVNZ argued that Mr Henry’s comments were opinion rather than points of fact. It therefore found that the accuracy standard did not apply in the circumstances and it declined to uphold the Standard 5 complaints.

[26]   TVNZ said that Breakfast was a live news and entertainment programme and as such was unclassified. It declined to uphold the complaints under Standard 8.

Referrals to the Authority

[27]   Dissatisfied with TVNZ’s response and with the action taken by TVNZ having upheld parts of the complaints, the complainants referred their complaints to the Authority under sections 8(1B)(b)(i) and 8(1B)(b)(ii) of the Broadcasting Act 1989.

Action taken referrals

[28]   All of the complainants argued that the action taken by TVNZ was insufficient.

[29]   Mr Adams argued that the broadcaster’s “generic response” to his complaint showed a “lack of understanding” and did not take into account the “harm that unwise comments in the public medium have on the lives of members of the community who … look different or have unusual names”. In the complainant’s view, TVNZ’s apology was “faceless and monotone legalese”.

[30]   Ms Godinet considered that Mr Henry frequently engaged in such behaviour on Breakfast and argued that he had been “congratulated and rewarded” by TVNZ. She asked the Authority to consider taking away advertising from Breakfast for two episodes. In addition, she said that TVNZ should be required to apologise in trade media and to the CEO of the companies whose advertising was associated with the Breakfast episode. Ms Godinet asked that the Authority request an expert opinion on the harm caused by the “verbal violence perpetrated by Paul Henry”. She asked the Authority to consider any additional action in recognition of the severity of the breach and the emotional harm caused by the broadcast.

[31]   Ms McNamara argued that while Mr Henry had resigned, the broadcaster had “actively encouraged his behaviour”, which she considered had worsened over time. The complainant argued that TVNZ had done nothing to discourage his behaviour and had continued to allow him to make “denigrating” comments. For this reason, she considered that the broadcaster should suffer a “severe penalty”.

[32]   Mr Yarrall was not satisfied that TVNZ had taken sufficient action to prevent a similar breach of broadcasting standards. He argued that TVNZ needed to review the type of content it delivered and its procedures for ensuring that such content was appropriate. While he supported Mr Henry’s suspension and subsequent resignation, he argued that Mr Henry was “just a symptom of the current practices at TVNZ” and considered that he had been made a “scapegoat for the whole affair”.

Standard 4 (controversial issues - viewpoints)

[33]   Mr Yarrall referred his Standard 4 complaint to the Authority. He argued that TVNZ did not address his complaint, which he said was specifically directed at Mr Henry’s comment, “Are you going to choose a New Zealander who looks and sounds like a New Zealander this time?” The complainant said that he objected to the statement not because it questioned the Governor General’s nationality, but because it inferred that Sir Anand Satyanand, and therefore “at least all people of Indian decent (if not all non-whites) cannot look like a New Zealander”. The Prime Minister’s response only stated that the Governor General was a New Zealander, but at no time was the point of view put across that “there is no specific look of a New Zealander, or that the colour of your skin plays no part in determining your nationality”, he argued.

Standard 8 (responsible programming)

[34]   Ms Godinet maintained that Standard 8 had been breached. She referred to recent comments in which Mr Henry had denigrated the Chief Minister of Delhi, Sheila Dikshit. She argued that TVNZ was irresponsible in allowing Mr Henry to remain “unchecked”, allowing him to continue engaging in such behaviour “until there was a considerable [public] outcry over such intolerance”. In the complainant’s view, TVNZ “deliberately chose a presenter such as Paul Henry as part of a marketing strategy for the Breakfast programme” when it knew that part of his appeal was his “denigrating and abusive” manner. She argued that TVNZ “attempted to spread hate and intolerance by hiding behind the fact that [Mr Henry] could also come across to audiences as both light-hearted and provocative”. Ms Godinet said that TVNZ knew that Mr Henry was capable of “abuse and intolerance” and argued that it was therefore “disingenuous” to say that Breakfast was an unclassified live news and entertainment programme.

[35]   The complainant argued that TVNZ’s “irresponsible marketing strategies” had “caused significant psychological distress and suffering” to people of Indian origin in New Zealand and to those who found such intolerance unacceptable. She said that TVNZ was ‘hugely influential” and that its “sanction of hate and abuse” was “heinous”. In her view, such “hatred” being spread by an important broadcaster served to “normalise intolerant attitudes”.

[36]   The complainant asked the Authority to take Breakfast off the air to show New Zealand the “irresponsibility of TVNZ’s actions” and to signal that its strategies were “unacceptable in a broadcaster”.

Broadcaster’s Response to the Authority

[37]   The broadcaster referred to statements made by some of the complainants to the effect that the Authority had upheld previous complaints about Mr Henry’s behaviour and that because of this TVNZ was actively promoting that behaviour. TVNZ argued that, in fact, the majority of complaints referred to the Authority about previous comments made by Mr Henry were not upheld. It noted that Mr Henry’s on-air comments were unscripted.

[38]   The broadcaster reiterated that it had upheld the complaints under Standards 1, 6 and 7, and said that although not all complainants had nominated these standards, its determination on these standards, as well as others nominated, had been communicated to all complainants. That may explain why some of the complainants believed they had received a “generic response”, it said.

[39]   TVNZ said that at the time that it considered the comments about the Governor General, it had not yet considered, or made a determination about, earlier comments made by Mr Henry relating to the Chief Minister of Delhi, Sheila Dikshit.

[40]   TVNZ maintained that it could only consider programmes that had been broadcast, and could not accept complaints concerning “TVNZ’s culture” or “the racist behaviour of New Zealanders”. Those matters were not subject to the Broadcasting Act 1989 or to programme standards, it argued. TVNZ said that, for the same reasons, those matters could not now be considered by the Authority.

[41]   With regard to Mr Yarrall’s Standard 4 (controversial issues) referral, the broadcaster said that Mr Henry’s comments about the Governor General were his unscripted personal opinion. It argued that the main topic under discussion concerned who would be appointed as the next Governor General, and not Mr Henry’s personal viewpoint. It reiterated that Mr Henry’s comment was “countered” by the Prime Minister and maintained that Standard 4 was not breached.

[42]   Turning to Ms Godinet’s Standard 8 (responsible programming) referral, TVNZ argued that the complainant’s concerns under that standard were best addressed under Standard 1 (in relation to distress or offence) and Standard 7 (in relation to discrimination and denigration). A breach of those standards had been upheld, it said.

Authority's Determination

[43]   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 complaints without a formal hearing.

Action Taken: Standard 1 (good taste and decency), Standard 6 (fairness)

and Standard 7 (discrimination and denigration)

[44]   We agree with the complainants that Mr Henry’s comments carried insinuations that discriminated against those not adhering to certain racial characteristics by encouraging the view that they should not be treated as New Zealanders, or hold office as representatives of this country. His attitude and behaviour displayed on the programme was unacceptable, particularly given his role as the host of a popular news and current affairs programme with wide-reaching influence.

[45]   Further, we draw attention to the Authority’s previous, and relatively recent decision in which it found that comments made by Mr Henry resulted in serious breaches of  Standards 1 and 7.²

[46]   We therefore agree with TVNZ’s decision to uphold the complaints under Standards 1 (good taste and decency), 6 (fairness) and 7 (discrimination and denigration) and consider that the host’s comments amounted to a serious breach of broadcasting standards.   

[47]   Our task on this occasion is to determine whether the broadcaster acted sufficiently and appropriately once it upheld the complaints under Standards 1, 6 and 7.

[48]   We note that having received a significant number of complaints about the broadcast, TVNZ failed to take immediate action, though Mr Henry personally apologised to the Governor General in a media statement on the day of the broadcast. The broadcaster’s initial response, or lack thereof, was significantly compounded by subsequent comments made by a TVNZ spokesperson who attempted to defend Mr Henry, stating that he said the things “we quietly think but are scared to say out loud”.

[49]   It was not until the following day that TVNZ realised the seriousness of the situation and began to take remedial action. We consider that the broadcaster’s failure to act on the day of the broadcast was unacceptable and in our view it should have acted immediately. Further, we note that in Mr Henry’s apology on Breakfast, he said that he was sorry “if” he seemed disrespectful to the Governor General, and apologised “for causing real hurt and upset to anyone”. In our view, the apology lacked substance and sincerity and we do not consider that it was adequate in the circumstances.

[50]   However, the action taken by TVNZ the day following the broadcast, though delayed, was comprehensive. The broadcaster suspended Mr Henry without pay for two weeks, publicly denounced and apologised for his remarks, and reviewed its editorial policies and presenter code of conduct. In our view, this was a reasonable response pending TVNZ’s determination of a breach of broadcasting standards. While TVNZ could have acted sooner, we are satisfied that on this occasion the action taken was sufficient.

[51]   Accordingly, we decline to uphold the action taken complaints.

Standard 4 (controversial issues – viewpoints)

[52]   Standard 4 states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[53]   In our view, the focus of that part of the interview complained about was the appointment of a new Governor General, and Mr Henry’s comments about Sir Anand Satyanand’s nationality were peripheral to this. We do not consider that the item discussed a controversial issue of public importance and we therefore decline to uphold the Standard 4 complaint.

Standard 8 (responsible programming)

[54]   Ms Godinet argued that, given TVNZ’s position as a hugely influential broadcaster, it should have acted more responsibly.

[55]   The primary purpose of Standard 8 is to ensure that programmes are correctly classified, display programme classification information, and adhere to the time-bands set out in the Free-to-Air Television Code. It also states that programmes should not cause viewers unwarranted alarm or distress, or deceive or disadvantage them.

[56]   We note that Breakfast is an unclassified news and current affairs programme with an adult target audience, and we consider that, though ill-informed, Mr Henry’s comments would not have alarmed, or otherwise disadvantaged, viewers when taken in the context of the programme.

[57]   Accordingly, we decline to uphold the Standard 8 complaint.

For the above reasons the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Peter Radich
Chair
18 March 2011

Appendix

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

1                  Robert Adams’ formal complaint – 8 October 2010

2                 TVNZ’s response to the formal complaint – 18 October 2010

3                 Mr Adams’ referral to the Authority – 19 October 2010

4                 TVNZ’s response to the Authority – 24 January 2011

1                Sue Godinet’s formal complaint – 8 October 2010 

2               TVNZ’s response to the formal complaint – 19 October 2010

3                 Ms Godinet’s referral to the Authority – 24 October 2010

4                 Ms Godinet’s additional submissions – 27 October 2010

5                 TVNZ’s response to the Authority – 24 January 2011

1                  Jan McNamara’s formal complaint – 4 October 2010       

2                 TVNZ’s response to the formal complaint – 18 October 2010

3                 Ms McNamara’s referral to the Authority – 15 November 2010

4                 TVNZ’s response to the Authority – 24 January 2011

1                  Gavin Millar’s formal complaint – 10 October 2010           

2                 TVNZ’s response to the formal complaint – 18 October 2010

3                 Mr Millar’s referral to the Authority – 19 October 2010

4                 TVNZ’s response to the Authority – 24 January 2011

1                  Michael Yarrall’s formal complaint – 5 October 2010         

2                 TVNZ’s response to the formal complaint – 18 October 2010

3                 Mr Yarrall’s referral to the Authority – 19 October 2010

4                 TVNZ’s response to the Authority – 24 January 2011

¹Ministry of Social Development and Television New Zealand Ltd, Decision No. 2006-076

²Ashurst and Others and TVNZ, Decision No. 2010-001