BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 1 (good taste and decency) – comments were provocative and hyperbolic but intended to stimulate discussion – contextual factors – not upheld

Standard 8 (responsible programming) – Breakfast was an unclassified news and current affairs programme – standard not applicable – not upheld

This headnote does not form part of the decision.

Broadcast

[1]  During an episode of Breakfast, broadcast on TV One between 6.30am and 9am on Tuesday 17 August 2010, presenter Paul Henry interviewed TVNZ's political editor on recent events in Afghanistan. Mr Henry questioned the political editor on the role of New Zealand's Special Air Service (SAS) in transferring prisoners into the hands of the National Directorate of Security (NDS), stating:

The SAS, now it's interesting isn't it, because the British have pulled away, I'm going to let you have more than one word on this, the British have pulled away, at the end of the day if we cannot trust an Afghan government group to look after these prisoners without torturing them, should we be there at all?

[2]  The following exchange took place between Mr Henry and the political editor:

Henry:                I'm going to ask you a supplementary here, does anyone care whether they
                         put drills through the heads of these people that they capture after we
                         give them back to the Afghans or not?

Political editor:   I'm not going to give you a one word answer to that, but what do we
                         expect the SAS to do? Deliver them by hand to the doorstep of the Hague
                         criminal court? I mean I just don't know what they're supposed to do with
                         these people. And as you say, if you can't trust the Afghan security forces,
                         I mean we're supposed to be handing the country over to them, so I'm not
                         quite sure what the SAS is supposed to do.

Henry:               It's absolutely ridiculous. And I mean the British have fallen on their swords
                         over this but these people, these killers, these morons are sort of taken out
                         of their criminal activity and then as you say, we're expected to hand them
                         over with kid gloves. No, no, no, we need to get out the Stanley knives!

Complaint

[3]  Amnesty International made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item breached standards relating to good taste and decency, violence and responsible programming.

[4]  The complainant referred to Mr Henry's comments about the treatment of detainees at the hands of the NDS, "does anyone care whether they put drills through the heads of these people that they capture" and "these killers, these morons are sort of taken out of their criminal activity ... we need to get out the Stanley knives".

[5]  Amnesty International said that it found the comments "deeply disturbing, offensive and irresponsible". It acknowledged the notorious human rights record of the Taleban and said that it condemned its violations of international humanitarian law. However, the complainant argued that Mr Henry's suggestion that detainees deserved to be subjected to torture at the hands of the NDS "beggars belief".

[6]  The complainant appreciated that Breakfast was intended to be "a light-hearted ‘lifestyle' programme" and that it could therefore be argued that its journalistic standards were correspondingly lower. However, it said that this did not excuse the broadcast of material that appeared to promote "indiscriminate violence and torture" of Afghan prisoners. The complainant described the item as "shock jock TV at its very worst".

[7]  Amnesty International argued that TVNZ, as New Zealand's national broadcaster, had a responsibility to prevent "inflammatory and offensive remarks" such as those expressed in the programme.

Standards

[8]  TVNZ assessed the complaint under Standards 1 and 8 of the Free-to-Air Television Code of Broadcasting Practice. They provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 8 Responsible Programming

Broadcasters should ensure programmes:

• are appropriately classified;
• display programme classification information;
• adhere to time bands 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 Complainant

[9]  TVNZ stated that Breakfast was "a mixture of news, serious interviews, magazine segments, reviews and often frequent good-natured ribbing at the expense of almost anyone in the headlines or visiting the set". It said that participants and viewers appreciated this, and in particular the host's "‘shoot from the lip' hyperbolic comments [were] an accepted style and integral part of the daily morning fare for the programme's growing audience".

[10]  The broadcaster argued 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 classification, the target audience, and the use of warnings.

[11]  TVNZ noted that the Authority had previously stated that standards relating to good taste and decency were primarily aimed at broadcasts that contained sexual material, nudity, violence or coarse language.¹ In the broadcaster's view, the item subject to complaint did not fall within any of these categories.

[12]  However, TVNZ noted that the Authority had also said that it would consider the standard "in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress".²

[13]  TVNZ argued that Mr Henry's comment, "we need to get out the Stanley knives", was a "flippant, off-the-cuff remark" that was meant to represent the opposite of the suggested "kid gloves" approach to handling detainees that was just mentioned by the political editor. It said that the host was renowned for such hyperbole and argued that there was significant audience expectation of this sort of behaviour from Mr Henry. It considered that Breakfast's adult target audience would have understood that his comments were not intended to be taken seriously.

[14]  TVNZ contended that the major question posed that morning on Breakfast was, "If we cannot trust an Afghan government group to look after these prisoners without torturing them, should we be there at all?". This was an important question to ask, it argued, and its right to broadcast such material was protected under the Bill of Rights Act. TVNZ considered that its right to ‘free speech' allowed it to hold and express opinions that may not be "popular or PC".

[15]  Mr Henry was not advocating torture for Afghan prisoners at the hands of the NDS when he said "does anyone care whether they put drills through their heads", TVNZ argued. Rather, he was questioning the guest in accordance with his role, and this was permitted under the Bill of Rights Act, it said.

[16]  Furthermore, the broadcaster said that Mr Henry was in a "good position" to express his opinion on the issues because he had been a Middle East correspondent for several years and had been to Afghanistan on more than one occasion. It said that Mr Henry was "well aware of the problems that Afghans face on a daily basis".

[17]  TVNZ did not consider that a significant number of adult viewers would have been offended by the comments, or that the comments strayed beyond the boundaries of good taste and decency in the context of the programme. Accordingly, the broadcaster declined to uphold the Standard 1 complaint.

[18]  Turning to Standard 8, TVNZ said that the responsible programming standard related to ensuring programmes were correctly classified, and that ratings were displayed when programmes screened. It argued that "As a live daily news and entertainment programme" Breakfast was not required to be classified. The broadcaster considered that the content subject to complaint was consistent with audience expectations, and it therefore declined to uphold a breach of Standard 8.

Referral to the Authority

[19]  Dissatisfied with the broadcaster's response, the complainant referred its Standard 1 and 8 complaints to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[20]  Amnesty International argued that its complaint did not relate to "the major question" under discussion, as alleged by TVNZ, but related to the specific comments made by Mr Henry.

[21]  The complainant argued that Mr Henry's comment, "does anyone care whether they put drills through the heads of these people", was advocating the use of torture because it was presented as a rhetorical question "implying that no one cares whether they put drills through their heads". Furthermore, it said, Mr Henry then proceeded to answer his own question by stating " ... we need to get out the Stanley knives". In the complainant's view, the host was not asking a journalistic question, as contended by TVNZ, but was "using a loaded rhetorical as a vehicle for stating his opinion."

[22]  With regard to TVNZ's contention that Breakfast had an adult target audience, the complainant argued that "the implication here is either that adults are somehow less outraged by torture, or that adults would not have taken Mr Henry's comments seriously". It said that even if the comments were not intended to be taken seriously, "real and ongoing instances of torture are no more the subject of humour - especially humour that appears to give justification to the practice".

[23]  Amnesty International pointed to TVNZ's statement that Mr Henry had been a Middle East correspondent for many years placing him in a good position to express his opinion on the issues. It argued that by establishing Mr Henry as a "credible commentator" on Afghanistan and Middle East issues, TVNZ undermined its contention that his comments would not have been taken seriously.

[24]  The complainant disagreed that a significant number of adult viewers would not have been offended by the comments.

[25]  With respect to the responsible programming standard, the complainant argued that Mr Henry's reference to Afghan prisoners as "killers" and "morons" obfuscated the fact that detainees were "innocent until proven guilty". It maintained that "to advocate for an illegal, violent and inhuman practice is not responsible programming".

Authority's Determination

[26]  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 complaint without a formal hearing.

Standard 1 (good taste and decency)

[27]  When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• Breakfast was an unclassified news and current affairs programme
• the programme's adult target audience
• the comments subject to complaint were broadcast at 7.25am on TV One
• the expectations of regular viewers.

[28]  We acknowledge the offence caused to the complainant and accept that Mr Henry's comments may have offended or distressed other viewers. However, while Mr Henry's choice of expression could have been less indelicate, we consider that he was not seriously advocating for the use of "indiscriminate violence and torture" against Afghan prisoners, as contended by the complainant. In our view, he was being deliberately provocative and hyperbolic to stimulate a response on an important and topical political issue.

[29]  This approach, when exercised within proper bounds, is permissible and legitimate in a society which values and protects the right to freedom of expression. We consider that views expressed strongly, or which are highly controversial, can sometimes cause people to consider issues which would not otherwise attract their attention.

[30]  Taking into account the above contextual factors, particularly that Breakfast was an unclassified news and current affairs programme targeted at adults, we do not consider that Mr Henry's comments breached standards of good taste and decency. We therefore decline to uphold the Standard 1 complaint.

Standard 8 (responsible programming)

[31]  Standard 8 requires 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.

[32]  We consider that viewers would not have been alarmed or distressed by Mr Henry's comments within the context of a news and current affairs programme aimed at adults. Accordingly, we decline to uphold the complaint under Standard 8.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
23 December 2010

Appendix

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

1.          Amnesty International's formal complaint – 17 August 2010

2.         TVNZ's response to the formal complaint – 14 September 2010

3.         Amnesty International's referral to the Authority – 8 October 2010

4.         TVNZ's response to the Authority – 9 November 2010

¹Yeoman and TVNZ, Decision No. 2008-087

²Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November 2006)