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 regarding the language used in a post-match interview on 1 News. The Southland Rugby captain used the phrase ‘shove it up their arse’ in response to a question on what he would say to ‘the detractors’. The Authority found this was low-level coarse language, within audience expectations, and recognised the value of allowing interviewees to express themselves in their own words.

Not Upheld: Good Taste and Decency

The broadcast

[1]  The sports section of 1 News on 13 November 2021 included a report on the NPC championship semi-final match between Taranaki and Southland. In a post-match interview, the Southland Rugby captain said:

[to the detractors] out there saying that we don't deserve to be here, but they can shove it up their arse as far as I'm concerned mate. We, we deserve to be here and we're proud of each other. 

The complaint

[2]  AP complained the broadcast breached the good taste and decency standard as ‘the rugby player said “They can stick it up their arse”.’

[3]  In referring the complaint to the Authority, the complainant added this ‘was broadcast during a news programme and offended myself and people in our community with a compass of moral decency. It was extremely insensitive to members of the LGBTQIA community and members of the public that have been subject to sexual violence associated with the action that the interviewee referred to and did not need to be aired.’ The complainant also noted the detractors referred to ‘would likely have included members of the Rainbow community and members concerned to maintain high public broadcasting standards’ and stated:

The phrase ’take it up the arse’ has its foundations in a discriminatory culture towards members of the Rainbow community and the public who view sexual acts as private among consenting adults. Broadcasting a comment that is a descriptive phrase applying to sexual acts among consenting individuals in private and has been historically used to judge sexual acts among those consenting adults who might express their love in ’non-traditional’ forms is regrettable and points to enduring homophobic attitudes and values in our community that sexualise sporting prowess, marginalise members of the community with different sexual preferences and promote sexual violence.

The broadcaster’s response

[4]  Television New Zealand Ltd (TVNZ) did not uphold the complaint:

• ‘1 News is aimed at an adult audience’.
• ‘The phrase used is a common colloquialism and part of the New Zealand vernacular. It is considered to be at the low end of the offensive language spectrum.’
• The phrase was ‘low-level coarse language… and was heard only once, as a legitimate expression of Tony Lamborn’s mood at the time.’
• In the BSA’s 2018 research on offensive language, the word ‘”arse” was not ranked as “offensive language”… and the phrase “shove it up their arse” was not surveyed.’
• While disputing the ability of a complainant to raise new arguments not considered in the original complaint, TVNZ noted the ‘comment was not directed at the rainbow community, but rather at Southland detractors who thought that the team did not deserve to be playing at that level. There was no element of hate speech or discrimination in the comment. It was simply a colloquial term articulating the Captain’s frustration at detractors, and intended to dismiss any negative comments about his team.’

Preliminary issues

[5]  Two preliminary issues arise regarding the referral of the complaint:

• Whether the complainant can raise additional standards that were not raised in the formal complaint.
• Whether the complainant can now refer to offence caused to the rainbow community under the good taste and decency standard when such offence was not referred to in the original complaint.

Additional standards

[6]  In the referral to the Authority, the complainant sought to raise the violence and discrimination and denigration standards. TVNZ considered these standards cannot be considered as part of the referral process, as they were not raised in the original complaint.

[7]  We agree. Pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider a complaint under the standard(s) raised in the original complaint to the broadcaster. The High Court has clarified that in certain circumstances:¹

…it is permissible [for the Authority] to fill gaps… or cross boundaries between Code standards…but only if these things can be done within the wording, reasonably interpreted, of the original complaint, and if a proper consideration of the complaint makes that approach reasonably necessary…

[8]  We do not consider the additional standards could be reasonably implied into the original complaint, nor do we consider it necessary to imply such standards. For the reasons set out in this decision, we consider the complaint is appropriately dealt with under the good taste and decency standard.

Additional arguments

[9]  As the original complaint did not refer to ‘offence caused to the LGBTQI+ community’, TVNZ considered this aspect of the complaint could not be considered now as part of the referral process.

[10]  As noted above, the Authority can only consider standards raised in the original complaint to the broadcaster. However, this principle does not prevent complainants from making more detailed arguments in respect of standards already raised.² We therefore consider the additional arguments under the good taste and decency standard.

Our analysis

[11]  We have watched the broadcast and read the correspondence listed in the Appendix.

[12]  The good taste and decency standard³ states current norms of good taste and decency should be maintained, consistent with the context of the programme. The standard is intended to protect audiences from content likely to cause widespread undue offence or distress, or undermine widely shared community standards.⁴

[13]  The context in which a statement occurs and the wider context of the broadcast are relevant to assessing whether a programme has breached the good taste and decency standard.⁵

[14]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the right to freedom of expression against potential harm caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.⁶

[15]  We do not consider the broadcast undermined current norms of good taste and decency. In reaching this finding, we identified the following contextual factors:

• 1 News is an unclassified news programme aimed at an adult audience.
• News and current affairs programmes are unlikely to be viewed by unsupervised young children.⁷
• The phrase was used by the captain interviewed rather than the broadcaster.
• The phrase was directed towards an abstract group of ‘detractors’ and did not form part of abuse or criticism directed at any person or section of the community.

[16]  We are also influenced by the following:

• While not condoning use of the phrase, the phrase could be seen as a common colloquialism in New Zealand and is considered low-level coarse language.
• The BSA conducts regular research into offensive language in broadcasting. The most recent report, in 2018, included the word ‘arsehole’, although did not include the phrase ‘shove it up your arse’ or an equivalent variation. In that research, the word ‘arsehole’ ranked at number 24 out of 31 words tested for offensiveness.⁸ The research also found language was likely to be more acceptable when it was used by an interviewee, rather than the broadcaster / presenter.⁹
• We have previously refused to uphold complaints regarding variations of similar phrases (although in different contexts).¹⁰

[17]  In our view, audiences accept people may communicate differently in different contexts and in a diverse society such as New Zealand. The Authority has previously recognised the value in allowing individuals to express themselves in their own words.¹¹

[18]  While the phrase may not be everyone’s preferred choice of language, the right to freedom of expression allows individuals to express themselves in the way they choose, so long as standards are maintained. In this case, we do not consider the relevant language violated currently held community norms of good taste and decency to the extent that limiting the right to free speech is justified.  

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

Susie Staley
Chair
9 February 2022   

Appendix

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

1  APs formal complaint – 13 November 2021

2  TVNZ’s response to formal complaint – 10 December 2021

3  Ap's referral to Authority – 10 December 2021

4  TVNZ’s confirmation of no further comments – 13 December 2021

5  TVNZ’s comments in response to additional arguments – 14 December 2021

6  AP's final comments – 13 January 2022

7  TVNZ’s response to final comments – 25 January 2022

¹ Attorney General of Samoa v TVWorks Limited, CIV-2011-485-1110 at [62]
² See New Zealand Catholic Bishops Conference and CanWest TVWorks Ltd, Decision No. 2005-112 at [85]–[87]
³ Standard 1 of the Free-to-Air Television Code of Broadcasting Practice
⁴ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
⁵ Guideline 1a
⁶ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁷ Francis and Television New Zealand Ltd, Decision No. 2021-045 at [17] citing Lowry and Television New Zealand Ltd, Decision No. 2018-051 at [9] and Larsen and Television New Zealand Ltd, Decision No. 2012-055
⁸ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho Language that may Offend in Broadcasting (June 2018) at 6
⁹ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho Language that may Offend in Broadcasting (June 2018) at 8
¹⁰ See Williams and New Zealand Media and Entertainment, Decision No. 2015-019 (‘take your criticism and ram it up your arse’ in sports commentary context); and Campbell and Television New Zealand Ltd, Decision No. 2001-067 (news programme reporting on election, interviewee said ‘the [National] party needs a good kick up the arse’
¹¹ See, for example: Johnston and NZME Radio Ltd, Decision No. 2021-076 at [16]–[18] Cant and Television New Zealand Ltd, Decision No. 2021-030 at [17]–[18]; and Family First New Zealand and TVWorks Ltd, Decision No. 2012-037 at [8]