BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint about a segment during Days with Lorna Subrtizky on Coast FM discussing Sylvester Stallone’s recent divorce. As part of the segment, the host joked, ‘When he was interviewed about it, Sly Stallone had this to say…’ and played a clip of Stallone garbling unintelligibly, with only the word ‘Rocky’ able to be made out. The complainant considered this to be a cruel and insensitive joke which made fun of Stallone’s (and by implication, others’) disability affecting his speech, in breach of the discrimination and denigration standard. The Authority found the joke was directed only at Stallone as an individual, and did not extend to a section of the community as required under the standard. In any event, the broadcast would not have reached the threshold required for finding a breach.  

Not Upheld: Discrimination and Denigration

The broadcast

[1]  During Days with Lorna Subritzky, broadcast on 25 August 2022 on Coast FM, host Lorna Subritzky spoke about Sylvester Stallone and Jennifer Flavin’s recent divorce as part of a brief Hollywood update.

[2]  She speculated, ‘What has made this happen? Well, sources say it was all triggered [by] a massive argument when Sly Stallone went and got a Rottweiler, a brand new dog, against his wife’s wishes. When he was interviewed about it, Sly Stallone had this to say.’

[3]  A clip lasting approximately eight seconds was played of Stallone garbling unintelligibly, with only the word ‘Rocky’ able to be made out. 

[4]  Subritzky then said, ‘Okay, that’s a bit mean really, isn’t it. We wish them all the very best.’

The complaint

[5]  Cathy Kern complained the broadcast breached the discrimination and denigration standard as:

• The clip of Stallone speaking unintelligibly was an offensive, cruel and insensitive joke which encouraged discrimination and denigration against disabled people.
• Subritzky is a prominent and popular radio presenter who has influence, and what she chooses ‘to make fun of (garbled speech due to neural impairment in this case) is implicitly indicating it as fair game for others to do the same[.] For this reason, I’d argue this is a case in which a high level of condemnation/malice or nastiness need not be a requisite.’
• ‘At the very least allowing publicly broadcast denigration of those who are unintelligible due to neural impairment does not uphold the purpose of the standard in that it neither “protects sections of the community from verbal and other attacks” nor does it “foster a community commitment to equality”.’
• The joke was aimed at a section of the community as ‘the punch line was contingent on the way Mr Stallone spoke. A trait very conceivably shared by others in the community.’

The broadcaster’s response

[6]  NZME Radio Ltd did not uphold Kern’s complaint, arguing the standard did not apply as Subritzky was talking about Stallone as an individual, and not a section of the community. It further stated: ‘However, we do recognise that Mr Stallone’s speech has been affected by a disability. If it were to be determined that standard 4 was to apply, we consider that, while Lorna’s statement may be considered rude, it did not contain the requisite malice to breach the standard. Lorna herself did note that it was “a bit mean” – which it was.’

[7]  While NZME did not uphold the complaint, it advised that a copy of the complaint had been sent to Coast FM’s Content Director for reflection and future training purposes.

The standard

[8]  The discrimination and denigration standard¹ protects against broadcasts which encourage the 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. The purpose of the standard is to protect sections of the community from verbal and other attacks, and to foster a community commitment to equality.²

[9]  ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment. ‘Denigration’ is defined as devaluing the reputation of a particular section of the community.³

Our analysis

[10]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[11]  As a starting point, we considered the right to freedom of expression. Our task is to weigh the right to freedom of expression, which includes the broadcaster’s right to offer a range of content and the audience’s right to receive it, against any harm potentially caused by the broadcast. Applying the discrimination and denigration standard, the importance of freedom of expression means a high level of condemnation, often with an element of malice or nastiness, will usually be necessary to find a broadcast encouraged discrimination or denigration in breach of the standard (although broadcast content which has the effect of reinforcing or embedding negative stereotypes may also be considered).⁴ Ultimately, we may only intervene and uphold a complaint where limiting the right to freedom of expression is reasonable and justified by the level of harm.⁵

[12]  The first question we considered in this case was whether the clip could reasonably be said to relate to disabled people generally as a section of the community (identified in the complaint), rather than just Stallone as an individual. This is because the discrimination and denigration standard applies only to recognised sections of the community. It is not directed at preventing harm to individuals, which is a matter more appropriately considered under the fairness standard.

[13]  In our view, the clip, which constituted a mean joke about the way Stallone talks, was only aimed at one person (‘Sly Stallone had this to say…’) and did not extend to a section of the community as envisaged by the standard. Subritzky made no reference to anyone other than Stallone. Nor did she make any comment on his specific characteristics or any disability affecting his speech, so no connection was made to any community sharing those characteristics. We therefore concluded any link extending beyond Stallone as an individual to disabled people more generally was too remote to trigger the standard.

[14]  In this respect, this case can be distinguished from the Authority’s decision in Ashurst.⁶ A majority of the Authority in that case upheld complaints that a programme host’s comments that the singer Susan Boyle was ‘retarded’, with reference to her physical characteristics (holding up a picture and saying if you look at her, you can ‘make it out’), extended to others sharing those characteristics and therefore encouraged discrimination and denigration of them as a section of the community.

[15]  Even if we were to find this broadcast related to a section of the community, we do not consider it would have met the high threshold to constitute a breach of the standard or justify limiting freedom of expression. We acknowledge the clip was a bad joke about the way Stallone speaks, and that some listeners would have found it to be insensitive. However, comments will not breach the standard simply because they are critical of a particular group, because they offend people or because they are rude.⁷

[16]  In our view, the clip was not malicious or vitriolic, and did not amount to ‘a high level of condemnation’. Rather, it was a brief joke about Stallone, a well-known Hollywood actor, that the host conceded was ‘a bit mean’ before promptly moving on. It formed only a brief part of the broader segment and, as we have said, neither the contents of the clip nor Stallone’s particular characteristics were mentioned any further. It was unlikely to encourage discrimination or denigration against disabled people more broadly, in the context.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
30 January 2023

Appendix

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

1  Cathy Kern’s formal complaint to NZME – 25 August 2022

2  NZME’s decision on the complaint – 22 September 2022

3  Kern’s referral to the Authority – 14 October 2022

4  NZME’s further comments – 31 October 2022

¹ Standard 4, Code of Broadcasting Standards in New Zealand
² Commentary, Standard 4, Code of Broadcasting Standards in New Zealand, page 12
³ Guideline 4.1
⁴ Guideline 4.2
⁵ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁶ Ashurst and 10 others and Television New Zealand Ltd, Decision No. 2010-001 at paras [58]-[59]
⁷ Commentary, Standard 4, Code of Broadcasting Standards in New Zealand, page 12