BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The Five on Fox News featured a panel discussion about the closing of the prison at Guantánamo Bay. One of the panellists twice commented that a solution for the remaining Guantánamo Bay inmates would be to ‘kill them all’. The Authority did not uphold a complaint alleging the comment incited mass murder. The comment did not amount to promotion of serious illegal activity to a New Zealand audience, and in the context of the discussion and the nature of the programme and channel it was unlikely to be taken literally by reasonable viewers.

Not Upheld: Law and Order

Introduction

[1] The Five on Fox News featured a panel discussion about the closing of the prison at Guantánamo Bay. One of the panellists twice commented that a solution for the remaining Guantánamo Bay inmates would be to ‘kill them all’.

[2] Robert Arlidge complained that the comment incited mass murder, which was a serious crime and therefore breached the law and order standard.

[3] The issue is whether the broadcast breached the law and order standard as set out in the Pay Television Code of Broadcasting Practice.

[4] The item was broadcast on Fox News on 19 December 2015. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the broadcast encourage viewers to break the law, or otherwise promote, condone or glamorise serious antisocial or illegal behaviour?

[5] The intent behind the law and order standard (Standard P5) is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone serious antisocial or illegal behaviour.¹

[6] Mr Arlidge considered the comment ‘kill them all’ amounted to a serious crime, namely incitement of mass murder. He was of the view that if the same comment was made on a New Zealand political panel in relation to New Zealand prisoners, the panellist would be fired and the matter referred to police.

[7] SKY argued the comments did not promote serious antisocial or illegal behaviour, as they were made in an ‘off-the-cuff’ manner and were clearly opinion about a highly controversial issue, rather than a statement of literal fact. It noted that statements which may appear inflammatory in isolation are often ‘fiery rhetoric and hyperbole based on tone and context’, and pointed to other panellists’ views which countered the statement in question. SKY described The Five as an ‘opinion show’ that was well-known for debating controversial issues of significant public concern among five Fox News personalities ‘with divergent views seated in a round table format’. It argued that audiences expect strongly expressive language on all sides of their debates. SKY further stated that it strives to offer a range of channels and viewpoints across its platform that appeal to a diverse customer base, and that individual viewers will prefer different content and can choose what they do and do not watch accordingly.

[8] The law and order standard is generally concerned with broadcasts that amount to a promotion of serious illegal activity among New Zealand viewing (or listening) audiences. The comment ‘kill them all’, made by an American panellist on an American news channel, related to inmates at an American military prison. The comment could not reasonably be said to have encouraged New Zealand viewers to kill inmates at Guantánamo Bay or to commit mass murder, as they would not be able or expected to act on it.

[9] In any case, we do not consider viewers would have interpreted ‘kill them all’ as a serious incitement of mass murder in the way alleged by the complainant. This comment came at the end of a very heated and robust debate, and formed a sort of climax to what at times descended into a shouting match between panellists. The statement was not elaborated on, and the panellist’s views were contradicted by another panellist who presented Guantánamo Bay and the actions of the United States government in a negative light, saying it was a ‘constitutional embarrassment’. The panellist’s exasperated tone, and the hyperbolic nature of many statements made on Fox News, supports our view that the comment was not likely to have been taken literally.

[10] The importance of the right to freedom to expression, which includes both the broadcaster’s right to impart ideas and information and the public’s right to receive that information, means that any restriction on that right must be proportionate to the harm alleged to have been caused by the broadcast. We do not consider that the comment in this case, made in the context of a highly charged debate between political panellists on an American news channel, caused any level of harm that would justify limiting the exercise of free speech in this case. We acknowledge that views expressed on foreign channels such as Fox News can at times be extreme, and some viewers may personally find them unacceptable. However, Fox News is one channel within a wide and diverse range of channels offered by the broadcaster, and in these circumstances we do not consider the programme was so unacceptable as to breach broadcasting standards.

[11] Accordingly we do not uphold the complaint under Standard P5.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich

Chair

12 May 2016

Appendix

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

1      Robert Arlidge’s formal complaint – 19 December 2015
2      SKY’s response to the complaint – 4 February 2016
3      Mr Arlidge’s referral to the Authority – 4 February 2016
4      SKY’s response to the Authority – 7 March 2016
5      Mr Arlidge’s final comment – 8 March 2016

¹ See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082