BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Nightline – item on Māori TV’s bid for the free-to-air broadcasting rights to the Rugby World Cup – included satirical sketch about what Māori TV’s coverage would look like – allegedly in breach of good taste and decency, controversial issues, accuracy, fairness, discrimination and denigration and responsible programming standards

Findings
Standard 7 (discrimination and denigration) – legitimate satire – lacked necessary invective to cross threshold for denigration of Māori as a section of the community – Māori TV not a section of the community – not upheld

Standard 6 (fairness) – Māori TV treated fairly – Pita Shaples and Julian Wilcox treated fairly – not upheld

Standard 1 (good taste and decency) – contextual factors – not upheld

Standard 4 (controversial issues – viewpoints) – item was satire – did not “discuss” a controversial issue of public importance – not upheld

Standard 5 (accuracy) – item did not contain any statements of fact – not upheld

Standard 8 (responsible programming) – obvious to viewers that the item was not meant to be taken seriously – viewers not deceived – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on Nightline, broadcast on TV3 at 10.30pm on Tuesday 6 October 2009, reported on Māori Television’s bid for the free-to-air broadcasting rights to the Rugby World Cup. The presenter introduced the item by saying:

Māori TV’s bid for the free-to-air broadcast rights to the Rugby World Cup has caused some controversy. Te Puni Kokiri wants to spend three million dollars of funding earmarked for Māori development on the bid. Here’s Ali Ikram to talk us through it.

[2]   While standing in front of a large television screen, Mr Ikram said:

You might have seen that Māori TV wants the rights to the Rugby World Cup. Some people have got a problem with this.

But when you think of how well the channel does on Anzac Day every year, they already have extensive experience in covering some of our nation’s most historic defeats. So the World Cup is really just a logical next step. Pita Sharples thinks it’s a great idea to bring Māori language and culture to the world.

What might that look like? Well, here’s a pilot that’s currently with the International Rugby Board that was exclusively leaked to us at Nightline.

[3]   As Mr Ikram mentioned Māori Party co-leader Dr Pita Sharples, the screen behind the presenter showed a shot of an ex-All Black holding up the Rugby World Cup with his face replaced by that of Dr Sharples.

[4]   A skit then began with footage showing spectators in a stadium getting ready to watch a match between the All Blacks and France. During this footage, a voiceover said:

Tena koutou, tena koutou, tena koutou, katoa. Haere mai and welcome to the Rugby World Cup final on Māori TV brought to you by our sponsors MasterCard, Emirates and post-colonial guilt.

[5]   As the sponsors’ names were read out, logos for the companies MasterCard and Emirates were shown. A picture of the Treaty of Waitangi accompanied the reference to “post-colonial guilt”.

[6]   As footage of the All Blacks and France getting ready to play each other was shown, the voiceover said:

The teams are about to assemble for the compulsory haka.

[7]   The All Blacks were shown performing the haka, followed by footage of cancan dancers. The voiceover said:

And haven’t this French side taken to this new requirement of the tournament with gusto. I’m beginning to feel better about Cardiff already.

[8]   Footage of the All Blacks playing France was shown, during which the voiceover stated:

Was that dirty play? Well the referee’s gone upstairs for a decision from the Waitangi Tribunal. Put the jug on, it may be a while.

[9]   Footage was then shown of a Waitangi Tribunal hearing and the presenter could be heard whistling “Pokarekare Ana”.

[10]   The skit returned to the rugby game and an All Black was shown running along the sideline with the ball headed towards France’s try line. As the All Black dived forward, the game was paused and the voiceover said:

We interrupt the broadcast for the following public service announcement.

[11]   During the voiceover, the screen changed to show the words “public service announcement” alongside the image of a tiki with glowing red eyes.

[12]   The screen changed again and a photograph of Māori TV presenter Julian Wilcox was shown. His mouth was moving like that of a puppet and, in the presenter’s voice, the caricature of Mr Wilcox said:

Kia ora, I’m Julian Wilcox. You might remember me from such Māori TV shows as Native Affairs, Anzac Day, Waitangi Day, Ta Kāea and Homai te Pakipaki. Okay, so I basically present everything here, but we at Māori TV have decided that Pakeha, it’s time to talk.

There are a few things we need to get sorted out and you won’t get to see the rest of the game until we have.

[13]   The music from the shower scene in the movie Psycho was briefly played as the shot zoomed in on the caricature of Mr Wilcox.

[14]   The item went back to the presenter, who was standing in front of a screen which again showed the shot of an ex-All Black holding up the World Cup with his face replaced by that of Dr Sharples. Mr Ikram concluded the item by saying:

So it’s going to be great. Um, the only minor hurdle is that the Māori word for try, “piro”, also means “to break wind”. This is true, I’m not making this up, I checked with the Māori Language Commission. But hey, we’ve got years to sort that out. It’ll be fine.

Complaints

[15]   A Adair, Francis Carter, Jarrod Hunt and Charis Oldfield made formal complaints to TVWorks Ltd, the broadcaster, alleging that Mr Ikram’s skit had breached broadcasting standards.

A Adair’s complaint

[16]   Mrs Adair argued that the item had breached standards relating to good taste and decency, controversial issues, accuracy, fairness, discrimination and denigration and responsible programming.

[17]   The complainant argued that Nightline had not only mocked Māori TV, but Māori in general. She contended that the item had “mocked” many aspects of Māori culture, including the Treaty relationship between Māori and the Crown, and the haka. Mrs Adair considered that the item was an attack on Māori and that it encouraged negative stereotypes.

Francis Carter’s complaint

[18]   Mr Carter argued that the item had breached Standard 4 (controversial issues – viewpoints) because a representative from Māori TV had not been invited to present “their own significant points of view” in support of the channel’s bid. He considered that the item was “distasteful in every sense and definitely not impartial or humorous”.

[19]   The complainant considered that the “views expressed by the presenter were naive, uneducated, discriminatory and degrading to Māori” in breach of Standard 7 (discrimination and denigration). He argued that the item was a “snide attack” on Māori TV.

Jarrod Hunt’s complaint

[20]   Mr Hunt considered that the item was “offensive and racist” and had mocked and belittled the Māori language. He argued that the item’s “ridicule” of Dr Sharples was inappropriate and unprofessional.

Charis Oldfield’s complaint

[21]   Ms Oldfield argued that the item was offensive and rude. She considered that the presenter’s satirical comments about Māori language, and the reference to the Treaty as a “European guilt piece”, breached standards of good taste and decency.

[22]   The complainant argued that the item should have been preceded by a warning, because of the offence or distress it could have caused to some people. She also considered that the absence of a verbal warning meant that viewers would have taken the item to be a serious piece of journalism.

[23]   Ms Oldfield also contended the item had breached Standard 6 (fairness), as it was a racist “propaganda” piece used to attack Māori TV.

Standards

[24]   Standards 1, 4, 5, 6, 7, and 8 and guidelines 1a, 1b, 6a and 7a are relevant to the determination of these complaints. They provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Guidelines

1a   Broadcasters will take into account current norms of good taste and decency bearing in mind the context in which any content occurs and the wider context of the broadcast e.g. programme classification, target audience, type of programme and use of warnings etc.

1b   The use of visual and verbal warnings should be considered when content is likely to disturb or offend a significant number of viewers except in the case of news and current affairs, where verbal warnings only will be considered. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.

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 justly and fairly with any person or organisation taking part or referred to.

Guideline 6a

A consideration of what is fair will depend upon the genre of the programme (e.g. factual, dramatic, comedic or satirical programmes).

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.

Guideline 7a

This standard is not intended to prevent the broadcast of material that is:

(i) factual
(ii) a genuine expression of serious comment, analysis or opinion; or
(iii) legitimate humour, drama or satire.

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

[25]   TVWorks stated that it had only considered whether the item complied with broadcasting standards relating to good taste and decency, fairness and discrimination and denigration. It said that these were the standards that best addressed the complainants’ concerns.

[26]   The broadcaster argued that Standards 4 (controversial issues – viewpoints), 5 (accuracy) and 8 (responsible programming), either had no application to the item or the concerns expressed under them would be adequately addressed as part of its consideration of the “relevant standards”.

[27]   TVWorks said that it had discussed the item with Mr Ikram, the Nightline producer and news management. It said that it was assured that the item was not intended to be offensive, but rather to be satirical and humorous. The broadcaster accepted this explanation and argued that the item was clearly signalled as a send-up rather than serious news reporting. It considered that the first signal that the item was a “send-up” was a teaser before the break and during the item, where a picture of an ex-All Black holding the Rugby World Cup was shown with Pita Sharples’ face on it.

[28]   TVWorks said another signal was given when Mr Ikram commented that Māori Television's coverage of Anzac Day had given it experience of covering New Zealand defeats. It contended that the item continued in that vein.

[29]   The broadcaster considered that the placement of the piece at the end of the second break before “music/entertainment and sports news” was appropriate and that Mr Ikram had “well established credentials for this kind of satirical tongue-in-cheek reporting”.

[30]   TVWorks argued that the item was clearly intended to be humorous, consisted of overt and legitimate satire, and was not entirely unexpected in the context in which it was shown. Satire, it said, poked fun at everything and everyone featured. It contended that viewers were actively encouraged by a number of signals not to take what was being said or shown seriously. An example of this, it said, was the “cartoon effect” of the Māori TV presenter speaking and the reference to refereeing decisions being made by the Waitangi Tribunal with pictures of actual tribunal members shown.

[31]   The broadcaster argued that the Authority had “consistently recognised the right of broadcasters to satirise politics, religion or culture”. It maintained that the item was clearly satire and was “a play upon the debate that had sprung up around the decision by Māori TV to use part of its government funding to bid for the rights for the free-to-air coverage of the 2011 Rugby World Cup as being a legitimate use of this funding to promote Māori language and interests”.

[32]   Turning to good taste and decency, TVWorks stated that the type of humour contained in the item was not unheard of on the Nightline programme, that the show had a reputation for irreverent takes on events and that Mr Ikram had developed a reputation for his satirical and humorous approach to issues of the day.

[33]   In light of these factors, the broadcaster concluded that the item did not breach Standard 1 (good taste and decency).

[34]   With respect to Standards 6 (fairness) and 7 (discrimination and denigration), TVWorks argued that the item was not unfair to Māori TV or to Māori in general and that it had not denigrated or discriminated against Māori as a section of the community.

[35]   The broadcaster maintained that the issue was whether the broadcast blackened the reputation of an identifiable class of people and argued that a programme’s humorous or satirical intent was a highly relevant factor in assessing an allegation of denigration. It noted that guideline 7a said that the discrimination and denigration standard was not intended to prevent the broadcast of material offered in the legitimate context of a dramatic, humorous or satirical work. It argued that a humorous or satirical work would have to “move towards the realm of hate speech or vitriol” before the threshold for denigration would be reached.

[36]   TVWorks stated that one of the features of satirical writing was the use of disrespectful and offensive language and images to ridicule prevailing beliefs or ways of thinking and to provoke thought and laughter.

[37]   The broadcaster contended that one of the inevitable consequences of the right to free expression was that people would sometimes be offended by what others had to say. It argued that, even if the item was not legitimate satire, the material shown in the item did not encourage the denigration of, or discrimination against, Māori.

[38]   TVWorks considered that, “the treatment afforded to the item, the pervasive and comedic mocking of all featured, the noticeable absence of any ‘points of fact’ as found in conventional news and current affairs and other factual programmes were, in combination with the other factors referred to above, sufficient to overcome any concerns” that the item breached broadcasting standards. The broadcaster declined to uphold the complaints.

Referrals to the Authority

[39]   Dissatisfied with TVWorks’ response, Mrs Adair, Mr Carter, Mr Hunt and Ms Oldfield referred their complaints to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Authority's Determination

[40]   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.

Standard 7 (discrimination and denigration)

[41]   Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community.

[42]   In considering whether Standard 7 was breached, the Authority notes that Māori Television is not a “section of the community” to which the standard applies. However, it recognises that part of the outrage felt by the complainants was the connection between Māori TV and Māori in general. Accordingly, the Authority turns to consider whether the item encouraged denigration of, or discrimination against, Māori as a section of the community.

[43]   The term "denigration" has consistently been defined by the Authority as blackening the reputation of a class of people (see for example Mental Health Commission and CanWest RadioWorks¹). The term “discrimination” has been consistently defined as encouraging the different treatment of the members of a particular group to their detriment (see for example Teoh and TVNZ²).

[44]   It is also well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard (see for example McCartain and Angus and The Radio Network³).

[45]   The Authority notes that the presenter’s introduction gave no indication that the Nightline item would not be discussing a topical issue in a serious way, and it therefore considers that viewers would have expected a legitimate news piece. Because the item was poorly signposted by the introduction, and despite the broadcaster’s claims that Mr Ikram is well known for this type of item, the Authority considers that the nature of the piece would have taken some viewers by surprise.

[46]   However, in the Authority’s view, it would have been abundantly clear to viewers very shortly after the item began that it was satirical commentary and an attempt at humour.

[47]   A programme’s humorous or satirical intent is a highly relevant factor in assessing an allegation of denigration or discrimination. Guideline 7a is explicit in this respect – the standard is not intended to prevent the broadcast of material that is legitimate humour, drama or satire. This does not mean that such material is given unchecked freedom; the guideline simply reflects the fact that democratic societies place a high value on these forms of artistic expression. The Authority has previously found that the content of a satirical or humorous work would have to move towards the realm of vitriol or hate speech before it would breach the denigration and discrimination standard (see Browne and CanWest⁴).

[48]   On this occasion, the Authority considers that the item did not mock Māori in general; rather, it satirised Māori TV’s proposed coverage and its view that Māori language and culture could be promoted through its coverage of the Rugby World Cup. Nothing in the item could be said to have “blackened the reputation” of Māori, or to encourage the different treatment of Māori to their detriment.

[49]   The Authority concludes that, while some viewers may have found the item to be in poor taste, it lacked the necessary invective to reach the threshold of discrimination or denigration for the purposes of the standard.

[50]   Accordingly, the Authority declines to uphold the complaints that the item breached Standard 7.

Standard 6 (fairness)

[51]   Standard 6 requires broadcasters to deal fairly with any person taking part or referred to in an item. The Authority has previously described the objective of Standard 6 in the following terms⁵:

In the Authority's view, one of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

[52]   As outlined in paragraphs [47] and [48] above, the Authority considers that the item was legitimate satire, and did not contain any serious comment about Māori TV’s bid for the Rugby World Cup. Nothing in the item harmed the reputation of Māori TV as an organisation. In these circumstances, the Authority concludes that Māori TV was not treated unfairly by TVWorks.

[53]   The Authority considers that the same reasoning applies to the contention that Dr Sharples and Mr Wilcox were treated unfairly. The satirical nature of the item and the attempt at humour meant that viewers would not have been left with an unfairly negative impression of either man’s character or conduct.

[54]   Accordingly, the Authority declines to uphold the complaints that the item breached Standard 6.

Standard 1 (good taste and decency)

[55]   When the Authority considers an alleged breach of Standard 1, it takes into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• the item was broadcast at 10.30pm
• Nightline was an unclassified news programme
• the item was not preceded by a warning
• the expectations of regular viewers.

[56]   The Authority has previously stated (e.g. Yeoman and TVNZ⁶) that standards relating to good taste and decency are primarily aimed at broadcasts that contain sexual material, nudity, violence or coarse language.

[57]   The Authority notes that Nightline has a history of containing edgy material and considers that, although the item was a poorly framed attempt at humour that was considered by some to be offensive, it did not contain any material that strayed beyond the bounds of good taste and decency.

[58]   Taking the above contextual factors into account, the Authority declines to uphold the complaints that the item breached Standard 1.

Standard 4 (controversial issues – viewpoints)

[59]   Standard 4 states that when controversial issues of public importance are discussed 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.

[60]   The Authority acknowledges that Māori TV’s bid for the Rugby World Cup could be categorised as a controversial issue of public importance. However, Standard 4 only applies where such an issue is “discussed”; in other words, where viewers expect to receive all significant perspectives on the issue in a balanced way. It does not apply to commentary or satirical pieces which are not intended to be taken seriously.

[61]   In the Authority’s view, the satirical item subject to complaint did not amount to a “discussion” of a controversial issue of public importance for the purposes of Standard 4. In these circumstances, the standard does not apply, and the Authority declines to uphold this part of the complaints.

Standard 5 (accuracy)

[62]   Standard 5 requires broadcasters to make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead.

[63]   Mrs Adair raised Standard 5 in her complaint, but did not point to any material points of fact in the item which she considered were inaccurate. Furthermore, the Authority has already stated that viewers would not have been misled into thinking that the item was a serious piece of journalism (see paragraph [46]).

[64]   In these circumstances, it declines to uphold Mrs Adair’s complaint that Standard 5 was breached.

Standard 8 (responsible programming)

[65]   Standard 8 states that broadcasters should ensure programmes do not deceive or disadvantage viewers. For the reasons outlined in paragraph [46] above, the Authority finds that viewers would not have been deceived or disadvantaged in any way.

[66]   Accordingly, it declines to uphold Mrs Adair’s complaint under Standard 8.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 December 2009

Appendix

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

1.           A Adair’s formal complaint – 6 October 2009
2.          TVWorks’ response to the formal complaint – 27 October 2009
3.          Mrs Adair’s referral to the Authority – 28 October 2009
4.          TVWorks’ response to the Authority – 5 November 2009

1.           Francis Carter’s formal complaint – 7 October 2009
2.          TVWorks’ response to the formal complaint – 27 October 2009
3.          Mr Carter’s referral to the Authority – 29 October 2009
4.          TVWorks’ response to the Authority – 5 November 2009

1.           Jarrod Hunt’s formal complaint – 6 October 2009
2.          TVWorks’ response to the formal complaint – 27 October 2009
3.          Mr Hunt’s referral to the Authority – 12 November 2009
4.          TVWorks’ response to the Authority – 16 November 2009

1.           Charis Oldfield’s formal complaint – 6 October 2009
2.          TVWorks’ response to the formal complaint – 27 October 2009
3.          Ms Oldfield’s referral to the Authority – 2 November 2009
4.          TVWorks’ response to the Authority – 5 November 2009

¹Decision No. 2006-030

²Decision No. 2008-091

³Decision No. 2002-152

⁴Decision No. 2005-112

⁵Decision No. 2008-014

⁶Decision No. 2008-080