BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The documentary Patrick Gower: On Hate investigated the 15 March 2019 terror attacks, focusing on the stories of the victims. The documentary featured footage from 2016 showing the complainant dumping a pig’s head at Masjid Al-Noor. The complainant argued the documentary breached the fairness standard as he was not given an opportunity to comment prior to its broadcast. Noting the high public interest in the documentary, the Authority found the complainant was not treated unfairly.

Not Upheld: Fairness

The broadcast

[1] On 31 August 2021, the documentary Patrick Gower: On Hate aired on Three. In it, Gower investigated issues around the 15 March 2019 mosque terrorist attacks, including whether they could have been prevented.

[2]  The broadcast included footage from three years prior to the shooting showing two men dumping a pig’s head at Masjid Al-Noor in Christchurch, one of the two mosques targeted in the shooting. The first man was identified as ‘a Christchurch local, a white supremacist’. We understand this man to be the complainant, Philip Arps. The other man’s face was blurred. The relevant footage was introduced as follows:

Gower:              You know, do you feel the Government and the spy agencies, do you feel they've missed something here?

Interviewee:      Without a doubt, because the focus was on us, and not what was happening to us. Because believe me, there were things that were happening before this.

[3]  Footage then showed two men walking up to the mosque and dumping a pig’s head at its doorstep:

Philip Arps:                I don't go to a mosque often. Like I said, it should be molotovs.

Gower:[voiceover]     Three years before the attacks, a Christchurch local, a white supremacist, dumps a pig's head at Al-Noor mosque.

Philip Arps:                The Muslims are going to love this.

Gower:[voiceover]     Pork is forbidden in Muslim culture.

[4]  The next shot shows the two men in a Nazi salute:

Man:                             White f***** power.¹

Gower:[voiceover]      For this hate, he receives an offensive behaviour conviction and an $800 fine. He is unrepentant.

[5]  Footage of Mr Arps was then shown:

Philip Arps:                   Bring on the cull. Get the f***ers out.

Gower:[voiceover]        If we'd been awake to the threat of white supremacy terrorism, could we have stopped the terrorist?

The complaint

[6]  Philip Arps complained the broadcast breached the fairness standard of the Free-To-Air Television Code of Broadcasting Practice as:

• The programme ‘makes reference [to] and screens myself. About my rightful use of opinion.’
• ‘Neither Gower nor any other representative of TV3 made contact with myself in request to taking part’ in the programme.’
• He was not provided with a fair and reasonable opportunity to comment.

The broadcaster’s response

[7]  Discovery NZ Ltd (Discovery) did not uphold the complaint, advising the complainant:

• ‘The footage of you was fleeting within the Broadcast overall and was used to provide context to the audience about the actions of white supremacist groups in New Zealand and to provide the audience with an example of the kinds of abuse and harassment the Muslim community had encountered in the years leading up to the 15 March terrorist attack.’
• ‘No white supremacist organisations or individuals are named in the Broadcast. This was a deliberate editorial decision. Considering you were not named, the Committee maintains there can be no unfairness to you. Furthermore, your views on the Muslim community in New Zealand were evident in the footage and did not require any further comment from you in this context, that of a victim-led documentary giving voice to the Muslim community.’
• ‘In the Committee's view, including the details of your conviction in this context does not contribute to any new damage or harm to your reputation’.

Our analysis

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

[9]  The fairness standard² protects the dignity and reputation of those featured in programmes.³ It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.

[10]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.⁴

[11]  This broadcast investigated issues around the 15 March terror attacks. The Authority has previously recognised the high level of public interest in the terror attacks, and subsequent stories.⁵ Although two years have passed since the events, the issue remains one of public importance, particularly with the release of Royal Commission of Inquiry’s report, the proposal to amend hate speech laws in New Zealand, and discussions around a movie reflecting the events of the day.⁶

[12]  In determining what is fair, the context in which content occurs, and the wider context of the broadcast, are relevant.⁷ In this case, the following contextual factors were identified:

• The documentary was a victim-led account of the attacks, exploring their experiences and whether the attacks could have been prevented.
• Footage showing the complainant, and his acquaintance, was used to provide background to themes explored in the documentary. It was highly relevant as it illustrated what the Muslim community was facing prior to the attacks.
• The complainant appears to have willingly captured, or participated in the capture, of this footage. His complaint states that the footage is about his ‘rightful use of opinion’.
• The complainant was not named in the broadcast.
• The footage, from 2016, is publicly available and has previously been broadcast on free-to-air television.⁸

[13]  The complainant submitted it was unfair to air it without providing him with a fair and reasonable opportunity to comment. Where a person referred to in a broadcast might be ‘adversely affected’, that person should usually be given a fair and reasonable opportunity to comment before the broadcast.⁹

[14]  However, in the context described above, the complainant was unlikely to have been adversely affected by the broadcast. In particular, he willingly participated in the relevant footage, which was already publicly available, as was his conviction for the events depicted (and his subsequent conviction for sharing footage of the mosque attacks).¹⁰ Any potential impact upon the complainant was outweighed by the right to freedom of expression given the high public interest in this broadcast.

[15]  Finally, given the context of the programme, Discovery was not required to inform the complainant of the nature of the documentary prior to its broadcast.¹¹

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

Susie Staley
Acting Chair
1 December 2021    

Appendix

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

1  Philip Arps’s formal complaint to Discovery – 9 September 2021

2  Discovery’s response to complaint – 5 October 2021

3  Philip Arps’s referral to the Authority – 6 October 2021

4  Discovery’s confirmation of no further comments – 8 October

¹ Censorship of language as in original broadcast
² Standard 11 of the Free-To-Air Code of Broadcasting Practice
³ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁴ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁵ Graf and Radio New Zealand Ltd, Decision No. 2019-071 at [7]
⁶ See, for example, Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques on 15 March 2019 "Report: Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019" (26 November 2020)  <www.christchurchattack.royalcommission.nz>; Ministry of Justice | Te Tāhū o te Ture “Proposals against incitement of hatred and discrimination” <www.justice.govt.nz>; Emily Brookes "Human Rights Commission supports call to shut down Christchurch mosque attacks film They Are Us" (online ed, 22 June 2021) Stuff <stuff.co.nz>
⁷ Guideline 11a
⁸ See Patrick Gower “Christchurch attack: The dark truth about New Zealand's white supremacists” (online ed, 12 May 2019) Newshub <newshub.co.nz>. Similar footage, broadcast by Newshub on 30 June 2019, was also the subject of a previous complaint by Mr Arps (see Arps and Television New Zealand Ltd, Decision No. 2019-073A)
⁹ Guideline 11d
¹⁰ See, for example, article in footnote 8 and The Queen v Philip Neville Arps [2019] NZDC 11547
¹¹ Guideline 11b