BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1B)(b)(i) and 8(1B)(b)(ii) of the Broadcasting Act 1989
Breakfast – presenter deliberately mispronounced the name of Chief Minister of Delhi, Sheila Dikshit – stated that “Dick Shit” was “so appropriate because she’s Indian, so she would be dick in shit, wouldn’t she” – 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 – action taken by broadcaster insufficient – upheld

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

Orders
Section 13(1)(a) – broadcast statement

Section 16(4) – payment of $3,000 costs to the Crown 

This headnote does not form part of the decision. 

Broadcast

[1]   An item on Breakfast, broadcast on TV One at 6.30am on Friday 1 October 2010, discussed the Commonwealth Games that were at that time being held in India. The following exchange took place between presenter Paul Henry and his co-hosts with reference to the Chief Minister of Delhi, Sheila Dikshit:

          Henry:              Also the dip shit woman, god what’s her name [hysterical laughter], Dick Shit, is it
                                  Dick Shit?

          Co-host 1:         Dikshit [pronounced ‘Dixit’].

          Co-host 2:         Dikshit [pronounced ‘Dixit’].

          Henry:              Oh Dikshit [pronounced ‘Dixit’].

          Co-host 2:         Dikshit [pronounced ‘Dixit’].

          Co-host 1:          It just looks different to what you say.

          Henry:               Well it looks like Dick Shit.

          Co-host 1:          I know it does Paul but it’s not that ...

          Henry:               Look there she is there, Sheila Dick Shit [hysterical laughter] ... Anyway, that’s so 
                                  appropriate because she’s Indian, so she would be dick in shit, wouldn’t she, do
                                  you know what I mean, walking along the street.

          Co-host 1:          Paul her name is Ms Dikshit [pronounced ‘Dixit’].

          Henry:               Oh Dikshit [pronounced ‘Dixit’]. That’s what I said, isn’t it?

          Co-host 1:          No.

          Co-host 2:         No you didn’t.

          Henry:              [laughter] That’s so funny, can we just have another look at [a banner of her
                                  name]. She’s just so funny isn’t she?

Complaints

[2]   Robert Adams, Sue Godinet and Richard Parsons made formal complaints to Television New Zealand Ltd, the broadcaster, alleging that the item breached broadcasting standards.

Mr Adams’ complaint

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

Ms Godinet’s complaint

[4]   Ms Godinet complained that the item breached standards relating to good taste and decency, discrimination and denigration and responsible programming. She said that by broadcasting the comments, TVNZ had allowed Mr Henry to “publicly humiliate people of Indian origin”. Ms Godinet stated 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.

Mr Parsons’ complaint

[5]   Mr Parsons said that it was “disgraceful” for Mr Henry to “ridicule” the Chief Minister by “deliberately mispronouncing [her] name, despite being told at the outset that it [was] pronounced ‘Dixit’”. In additional submissions, Mr Parsons argued that the programme breached standards relating to good taste and decency, controversial issues, fairness, discrimination and denigration and responsible programming.

[6]   The complainant noted that the broadcast had appeared in international headlines, drawn “outright condemnation” from the Indian Government and caused “international embarrassment” for New Zealand. Mr Parsons questioned how the broadcast of “racially insulting comments [was] fostering a sense of national culture and identity”, which he said was one of TVNZ’s public broadcasting responsibilities.

Standards

[7]   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

[8]   TVNZ stated that Mr Henry’s comments were made in the context of ongoing discussion about the unhygienic state of the Commonwealth Games Village accommodation. It said that the state of the village, including reports of human excrement, had been widely reported in international media, and that the comments referred specifically to this, and not to any “inherent negative characteristic of the Indian people”. However, TVNZ acknowledged that Mr Henry’s “attempt to link the vulgar English meaning of [Ms Dikshit’s] name with the Games Village story … [was] widely perceived as an offensive and insulting slur”.

[9]   With regard to good taste and decency, TVNZ contended that to constitute a breach of Standard 1, the broadcast material must be unacceptable to 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 Mr Henry’s comments would have offended and distressed a significant number of viewers and it therefore upheld the complaints under Standard 1.

[10]   Turning to Standard 6, TVNZ said that Mr Henry’s comments “seemed to mock Ms Dikshit’s name and linked it with scatological humour”. It said that this was “wrong” and had “offended” viewers and also noted reports that the comments had offended the Chief Minister. For these reasons, the broadcaster accepted that the comments were unfair to Ms Dikshit and upheld the Standard 6 complaints.

[11]   TVNZ accepted that while the comments were intended to be “humorous”, they made inferences about India that encouraged discrimination against Indian people. It stated that, “While it may be correct of any country to say that parts of [India] are dirty, [TVNZ] finds that the comments in this Breakfast item were inappropriate as they seemed to be generalised to the entire population of that country”. The broadcaster therefore upheld the Standard 7 complaints.

[12]   TVNZ acknowledged that Mr Henry’s comments were “inappropriate”, and apologised for any offence caused to the complainants. It said that Mr Henry had resigned from Breakfast.

Referrals to the Authority

[13]   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

[14]   Mr Adams said that he was unhappy with the way that TVNZ had handled his complaint. He argued that the broadcaster’s “generic response” showed a “lack of understanding” and did not reflect on 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”.

[15]   Ms Godinet argued that Mr Henry frequently engaged in such behaviour on Breakfast and 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.

[16]   Mr Parsons maintained that Mr Henry’s comments were “incredibly racist” and “not suitable” for Breakfast or any other programme on free-to-air television.  

Standard 8 (responsible programming)

[17]   Ms Godinet maintained that Standard 8 had been breached. She argued that 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”. However, Mr Henry’s “humorous and cheeky manner” did not justify the “darker tone and style” that he displayed, she said.

[18]   The complainant contended that TVNZ’s “irresponsible marketing strategies” had “caused significant psychological distress and suffering to a large number of New Zealanders”, 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”.

[19]   Ms Godinet 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

[20]   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.

[21]   With regard 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 and Standard 7. A breach of those standards had been upheld, it said.

Authority’s Determination

[22]   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)

[23]   We consider that Mr Henry’s repeated ridicule of Ms Dikshit’s name amounted to a sustained and deliberate attack against the Chief Minister personally, and that his subsequent comment, “Anyway, that’s so appropriate because she’s Indian, so she would be dick in shit, wouldn’t she, do you know what I mean, walking along the street”, extended to Indian people in general. Mr Henry’s attitude and behaviour on the programme, which consisted of sneering and uncontrollable laughter, made it clear that he was using the words “Dick Shit” in a pejorative sense to mock and belittle the Chief Minister. His subsequent comment, which associated the words “Dick Shit” with people of Indian descent was not only derogatory but entirely dissonant with common decency and a clear breach of the discrimination and denigration standard.

[24]   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).

[25]   Our task on this occasion is to determine whether the broadcaster acted sufficiently and appropriately once it upheld the complaints under those standards.

[26]   By way of explanation, the broadcaster said that Mr Henry’s comments were related in some way to inadequacies at the Commonwealth Games Village. In our view, Mr Henry’s comments extended far beyond simply commenting on the accommodation conditions in Delhi, and became a personal attack against the Chief Minister, and more generally, against Indian people.

[27]   TVNZ also noted in its decision that Mr Henry had resigned from Breakfast. We would like to make it clear that Mr Henry’s resignation does not constitute action taken by the broadcaster and has therefore not been considered.

[28]   Having upheld the complaints, TVNZ apologised to the complainants for any offence caused. In its decision, the broadcaster stated:

... the Complaints Committee finds that Mr Henry’s comments in this item were inappropriate. We understand that you were deeply offended by Paul Henry’s comments and we sincerely apologise to you for this.

[29]   Taking into account the serious nature of the breaches on this occasion, we consider that Mr Henry’s comments ought to have been categorised as something more than “inappropriate”. In our view, the breaches called for a firm and unqualified acceptance that the comments were unacceptable, and for a prompt and unequivocal statement and apology broadcast on Breakfast.

[30]   In these circumstances we agree with the complainants that the action taken by TVNZ was not sufficient to remedy the breaches of Standards 1, 6 and 7.

[31]   Having reached this conclusion, we must now consider whether to uphold the action taken complaints.

[32]   We acknowledge that upholding the action taken complaints 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. In Robinson and RadioWorks Ltd,¹ the Authority determined that upholding an action taken complaint would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.

[33]   With that in mind, we must now consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold the complaints on this occasion. Imposing further sanctions on TVNZ is, in our view, reasonable and proportionate given the serious nature of the breaches and TVNZ’s failure to properly address their significance.

[34]   We therefore uphold the complaints that the action taken by the broadcaster in relation to Standards 1, 6 and 7 was insufficient.

Standard 8 (responsible programming)

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

[36]   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. Standard 8 also states that programmes should not cause viewers unwarranted alarm or distress, or deceive or disadvantage them.

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

[38]   For this reason, we decline to uphold the Standard 8 complaint.

For the above reasons the Authority upholds the complaints that the action taken by Television New Zealand Ltd after upholding a breach of Standards 1, 6 and 7 of the Free-to-Air Television Code of Broadcasting Practice with respect to an item broadcast on Breakfast on 1 October 2010 was insufficient.

[39]   Having upheld the complaints, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on orders

Complainants’ submissions on orders

[40]   All of the complainants submitted that TVNZ should be ordered to broadcast a statement summarising the upheld aspects of the Authority’s decision. Mr Adams was of the view that this should include an acknowledgement by the broadcaster that it “will immediately bring in training and cultural sensitivity standards to change the racist culture at TVNZ”.

[41]   Ms Godinet argued that the broadcaster’s previous apology was inadequate and considered that it should be ordered to issue a revised and unqualified apology to viewers. Mr Adams submitted that TVNZ should be ordered to apologise to the Governor General.

[42]   Mr Adams was of the view that TVNZ should be ordered to refrain from broadcasting advertising programmes, as he considered that it should lose revenue to emphasise the seriousness of the breaches and to reinforce the need for it to make internal changes.

[43]   Mr Adams and Mr Parsons submitted that an order of $5,000 costs to the Crown was also warranted. In addition, they argued that TVNZ should be required to pay full compensation to the Governor General in the event that his privacy was found to have been breached.

[44]   Finally, Mr Adams and Ms Godinet submitted that the Authority should refer the complaints back to the broadcaster for consideration and determination, along with sufficient guidelines and directions to encourage a cultural shift at TVNZ, suggesting, for example, education programmes and staff training.

Broadcaster’s submissions on orders

[45]   TVNZ acknowledged that the complainants were upset and hurt by Mr Henry’s comments, but maintained that they formed part of a live programme, were unscripted and that it had not encouraged his behaviour.

[46]   The broadcaster asserted that, in its determination on orders, the Authority had no jurisdiction to consider Mr Henry’s subsequent comments with regard to New Zealand’s Governor General, which were broadcast on 4 October 2010. It said that while the two broadcasts must be considered separately, it had acted in the belief that the measures taken by TVNZ following the 4 October broadcast encompassed “both issues”. The broadcaster provided the Authority with media releases from Mr Henry and TVNZ CEO Rick Ellis relating to Mr Henry’s resignation. It noted that both releases made reference to the presenter’s comments about the Chief Minister, and included apologies to viewers and to the Indian community, both in New Zealand and in India.

[47]   TVNZ disputed the Authority’s ruling that Mr Henry’s resignation did not constitute action taken by the broadcaster. It said that his resignation followed his suspension from TVNZ which occurred after it had received complaints about his comments regarding both the Chief Minister and the Governor General. The broadcaster emphasised that it had accepted Mr Henry’s resignation and argued that it would be unrealistic and unfair for the Authority not to take this into account.

[48]   The broadcaster noted its decision to uphold the complaints, which it said reflected its recognition at the time that the comments were made, that they were unacceptable. It considered that it had taken appropriate measures to prevent similar situations from occurring in the future.

[49]   Accordingly, TVNZ submitted that publication of the decision was a sufficient penalty in all the circumstances.

Authority’s response to broadcaster’s submissions

[50]   At the outset, we would like to emphasise that our task on this occasion is to consider whether an order is appropriate with regard to our decision relating to comments about the Chief Minister. Mr Henry’s comments about the Governor General, which were made in a subsequent broadcast, have been dealt with by this Authority in a previous decision.²

[51]   The broadcaster has submitted that the measures taken by it following Mr Henry’s comments about the Governor General, which were broadcast on 4 October, were in response to that item as well as the 1 October item at issue. In particular, it has referred us to media releases from Mr Henry and TVNZ CEO Rick Ellis, which contained apologies from Mr Ellis to the Indian community in New Zealand and abroad, and from Mr Henry to “all those who were genuinely hurt” by his comments.

[52]   We have carefully considered the media releases supplied by TVNZ. In our view, they clearly related to the 4 October broadcast. There is no reference in either statement to the Chief Minister, only to the Governor General. We consider that the media releases, and Mr Henry’s suspension and subsequent resignation were primarily in response to Mr Henry’s comments about the Governor General, not his earlier comments about the Chief Minister which are the subject of this decision.

[53]   We have expressed our views above that the serious nature of the breaches on this occasion called for a firm and unqualified acceptance that the comments were unacceptable, and for a prompt and unequivocal statement and apology broadcast on Breakfast (see paragraph [29]).

Authority’s Decision on Orders

[54]   Having considered the submissions from the parties, we agree with the complainants that an order requiring TVNZ to broadcast a statement containing a comprehensive summary of this decision is warranted. The statement is to be broadcast once during Breakfast in accordance with our usual procedure.

[55]   With respect to the complainants’ submissions that TVNZ should be ordered to make a public apology, we note that the Authority has ordered apologies only rarely and in exceptional circumstances (see, for example, Ellis and Radio New Zealand³). We do not consider that the circumstances in the present case warrant an apology.

[56]   Turning to the complainants’ submission that the broadcaster should be ordered to pay costs to the Crown, we agree that, due to the serious nature of the breaches on this occasion and the inadequacy of TVNZ’s response, such an order is warranted. In determining an appropriate costs award we have had regard to the fact that TVNZ upheld the complaints and apologised to the individual complainants. Having regard to all the circumstances, we have concluded that an order of $3,000 is appropriate.

[57]   As TVNZ upheld breaches of Standards 1, 6 and 7, we are of the view that an order referring the complaints back to the broadcaster for consideration or determination is not appropriate in the circumstances.

[58]   We consider that an order requiring TVNZ to refrain from broadcasting advertising programmes is not warranted. While in our opinion, the comments were clearly in breach of broadcasting standards, the breaches were not so serious as to require an order of that magnitude.

[59]   With regard to the complainants’ submissions that TVNZ should be ordered to pay full compensation of $5,000 to the Governor General in the event that his privacy is found to have been breached, we reiterate that this decision relates solely to the 1 October broadcast in which Mr Henry made comments about the Chief Minister. We therefore have no power to make such an order under sections 13 or 16 of the Broadcasting Act 1989.

Orders

The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:

1. Pursuant to section 13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision
• be broadcast during Breakfast on a Tuesday morning
• be broadcast both verbally and visually on screen
• be broadcast at a time and date to be approved by the Authority
• contain a comprehensive summary of the upheld aspects of the Authority’s decision.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to section 16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $3,000 within one month of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
7 June 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

5                 Mr Adam’s submissions on orders – 23 March 2011

6                 TVNZ’s submissions on orders – 18 April 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

6                 Ms Godinet’s submissions on orders – 21 March 2011

7                 TVNZ’s submissions on orders – 18 April 2011

1                  Richard Parsons’ formal complaint – 6 October 2010

2                 Mr Parsons’ additional submissions – 9 October 2010

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

4                 Mr Parsons’ referral to the Authority – 20 October 2010

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

6                 Mr Parson’s submissions on orders – 25 March 2011

7                 TVNZ’s submissions on orders – 18 April 2011

¹Decision No. 2010-037

²Adams and Others and TVNZ, Decision No. 2010-143

³Decision No. 2004-115