BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Groove in the Park

 – text messages ran across the bottom of screen during broadcast of live music event on Waitangi Day – contained content which the complainant found offensive – allegedly in breach of good taste and decency, contrary to children's interests, denigratory and in breach of promotion of liquor standard

Findings
Standard 1 (good taste and decency) – use of expletives in graphic sentences was contrary to the observance of good taste and decency – upheld

Standard 6 (fairness) and guideline 6g (denigration) – text messages encouraged denigration of and discrimination against sections of the community based on race – upheld

Standard 9 (children’s interests) – broadcast was G-rated and children likely to be watching on a public holiday – content highly unsuitable for children – upheld  

Standard 11 (liquor) – unable to determine in the absence of a recording – decline to determine

Order
Section 13(1)(a) – broadcast of a written statement between 12pm and 5pm on Monday 22 October 2007
Section 13(1)(b)(i) – order to refrain from broadcasting between 12pm and 5pm on Monday 22 October 2007
Section 16(4) – payment of costs to the Crown $5,000

This headnote does not form part of the decision

Broadcast

[1]   On Waitangi Day, 6 February 2007, an annual event called “Groove in the Park” was held at the Western Springs Stadium in Auckland. The event consisted of live music performances by international and local artists, and was broadcast live on Alt TV. The broadcast also displayed the content of text messages received from viewers along the bottom of the screen.

Complaint

[2]   Pia Barnes made a formal complaint about the broadcast to Alt TV, the broadcaster. She also copied her complaint to SKY Network Television Ltd, as Alt TV was broadcast both free-to-air in the Auckland region and on channel 64 through the Sky Network.

[3]   Ms Barnes stated that she had been greatly distressed by a number of the text messages which had crawled along the screen, including:

• All niggers must die
• Don’t snigger nigger the KKK are getting bigger
• [name] loves sucking cock
• [name] cunt smells like fish

[4]   The complainant stated that there had been several other messages that were “far worse” but she did not wish to write them down. She noted that the programme had been rated G.

[5]   In Ms Barnes’ view, the content of the broadcast breached standards of good taste and decency, had failed to consider the interests of children, and had failed to safeguard against discrimination. She stated that she felt aggrieved that the “racial slurs” had occurred on Waitangi Day.

[6]   The complainant also contended that the consumption of liquor on the programme violated the promotion of liquor standard.

Standards

[7]   Ms Barnes raised the following standards and guidelines in her complaint to Alt TV:

Standard 1 Good Taste and Decency

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guideline 6g   

Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:

i)    factual, or

ii)   the expression of genuinely held opinion in news, current affairs or other factual
     programmes, or

iii)  in the legitimate context of a dramatic, humorous or satirical work,

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

Standard 11   Liquor

In the preparation and presentation of programmes, broadcasters must observe restrictions on the promotion of liquor appropriate to the programme genre being broadcast. Liquor Promotion should be socially responsible and must not encourage consumption by people who are under the legal age to purchase liquor.

Definition
Liquor Promotion comprises:

promotion of a liquor product, brand or outlet (‘promotion’)
liquor sponsorship of a programme (‘sponsorship’)
advocacy of liquor consumption (‘advocacy’)

Referral to the Authority

[8]   Ms Barnes received a letter from SKY Television in response to her complaint, but she did not receive a response from Alt TV. She referred her complaint to the Authority under section 8(1)(b) of the Broadcasting Act 1989 on the grounds that she had not received a decision from the broadcaster Alt TV.

Broadcaster’s response to the Authority

[9]   In its response to the Authority, Alt TV explained that it had employed the services of a moderator/censor to look at the text messages before they were broadcast. Unfortunately, it said, the person who had been employed had become intoxicated on the day and had failed to perform this role.

[10]   Alt TV stated that it was very sorry and regretful about the whole situation, and added that the broadcast had “seriously damaged” its brand and its relationship with SKY Television.

Authority's Determination

[11]   The members of the Authority have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.

[12]   The Authority notes that Alt TV was unable to provide a recording of the broadcast. However, the broadcaster agreed with the complainant’s description of the text messages that appeared on screen. The Authority proceeds to determine the complaint on that basis.

Standard 1 (good taste and decency)

[13]   When the Authority considers a complaint alleging a breach of good taste and decency, it is required to take into consideration the context of the broadcast. On this occasion, relevant contextual factors include:

• Groove in the Park was broadcast live on Waitangi Day
• the broadcast was rated as a G programme
• the text messages complained about were broadcast between 12pm and 5pm.

[14]   Ms Barnes has complained about the text messages listed in paragraph [3] of this decision. In the Authority’s view, the broadcast of all of these messages amounted to a breach of the good taste and decency standard.

[15]   The Authority notes that its survey of public opinion¹ disclosed that the words “cunt” and “nigger” were the two most unacceptable words in the list presented to those people surveyed. The word “cock” was also the sixth most unacceptable word to those surveyed.

[16]   The Authority finds that the impact of the words “cunt” and “cock” would have been exacerbated by their use in graphic sentences such as those listed in paragraph [3]. It also considers that broadcasting the two other messages, with their references to “niggers” would have been extremely distasteful to the majority of viewers.

[17]   Accordingly, the Authority finds that, by broadcasting these text messages, Alt TV failed to maintain standards consistent with the observance of good taste and decency. It upholds this part of the complaint.

Standard 9 (children’s interests)

[18]   The Authority also considers that the broadcast of the text messages amounted to a breach of Standard 9 (children’s interests). In reaching this conclusion, it has taken into account the context in which they were broadcast; in particular, the fact that the programme was G-rated and the content was broadcast between 12–5pm on a public holiday when children were likely to be watching. It considers that the content of the text messages was highly unsuitable for children and would have been likely to disturb or alarm young viewers.

[19]   In the Authority’s view, Alt TV failed to consider the interests of child viewers on this occasion and it upholds the Standard 9 complaint.

Standard 6 (fairness) and guideline 6g (denigration)

[20]   Guideline 6g to the fairness standard states that broadcasters must not encourage denigration of or discrimination against sections of the community on account of race. The Authority notes that it adopts the meaning of “race” that underlies the International Convention on the Elimination of All Forms of Racial Discrimination, to which New Zealand is a party.² That meaning is plain from the Convention’s definition of the term “racial discrimination”, which includes the following words:

any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin…

[21]   Accordingly the Authority accepts that discrimination or denigration on the basis of race includes discrimination or denigration on the basis of skin colour. In the present case, the Authority considers that broadcasting the messages “all niggers must die” and “don’t snigger nigger the KKK are getting bigger” was contrary to guideline 6g and amounted to a breach of Standard 6 (fairness), for the following reasons.

[22]   The Authority has stated on many occasions that, in light of the requirements of the Bill of Rights Act, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standards (see for example Decision No. 2002-152). The Authority finds that the threshold was clearly crossed on this occasion. The statements supporting death of and violence towards people of particular races can, in the Authority’s view, aptly be described as hate speech. It concludes that the broadcast encouraged denigration of, and discrimination against, sections of the New Zealand community on the basis of race.

[23]   In addition, the Authority notes that none of the exemptions in guideline 6g applied to this broadcast. It was not a news, current affairs or factual programme, and the comments were not in the legitimate context of a dramatic, humorous or satirical work.

[24]   Accordingly, the Authority upholds the Standard 6 complaint.

Standard 11 (liquor)

[25]   Ms Barnes’ Standard 11 complaint related to the consumption of liquor on the programme. In order to determine whether the standard was breached, the Authority would have to decide whether this content amounted to “liquor promotion”. In the absence of a recording of the programme, the Authority finds that it is unable to do so. In these circumstances, it declines to determine this part of the complaint under section 11(b) of the Broadcasting Act 1989.

Bill of Rights

[26]   For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast of Groove in the Park by Alt TV on 6 February 2007 breached Standards 1, 6 and 9 of the Free-to-Air Television Code of Broadcasting Practice.

[27]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

[28]   The complainant chose not to make any submissions on orders. Alt TV submitted that it should “run an apology to anyone offended by the technical issues we experienced during the broadcast”. It also said that any order of costs made against Alt TV would seriously jeopardise the future of the company.

[29]   The Authority has considered Alt TV’s comments regarding financial penalties. However, access to the public airwaves carries with it a responsibility to adhere to broadcasting standards, and this responsibility is equal for all broadcasters. Moreover, under the Broadcasting Act 1989, broadcasters are required to establish a proper procedure for dealing with formal complaints. The Authority notes that Alt TV failed to retain a copy of the broadcast complained about, and it did not respond to Ms Barnes’ formal complaint. The Authority intends to follow up this matter with Alt TV.

[30]   In reaching its decision on orders, the Authority has considered the extremely serious nature of the breaches and the effect that the broadcast would have had on viewers, particularly children.

[31]   Looking at the range of orders available to it under the Broadcasting Act 1989, the Authority considers that it is appropriate to order Alt TV to refrain from broadcasting for a period of five hours (between the hours of 12pm and 5pm) on Labour Day, Monday 22 October 2007. It recognises that orders of this nature are made rarely and only in exceptional circumstances. However, the Authority is of the view that the broadcast complained about on this occasion resulted in such serious breaches of broadcasting standards that an order under section 13(1)(b)(i) of the Act is warranted. It also considers that the five-hour period is justified given that the text messages on Groove in the Park went unmonitored by the broadcaster for that same period on Waitangi Day.

[32]   The Authority also orders that, during the above period, Alt TV must silently display a statement summarising the Authority’s decision and apologising to viewers for the serious breaches of broadcasting standards. In accordance with usual practice, Alt TV should draft a proposed statement for approval by the Authority.

[33]   The Authority considers that an order of costs to the Crown is also warranted. Because the breaches of broadcasting standards on this occasion were at the highest end of the scale, the Authority considers that a maximum award of costs to the Crown, in the amount of $5,000, is appropriate.

Orders

The Authority makes the following orders under sections 13 and 16 of the Broadcasting Act 1989:

1. Pursuant to section 13(1)(b)(i) of the Act, the Authority orders Alt TV Ltd to refrain from broadcasting programmes between the hours of 12pm and 5pm on Monday 22 October 2007.

2. Pursuant to section 13(1)(a) of the Act, the Authority orders Alt TV Ltd to silently and continuously broadcast a written statement, approved by the Authority, between the hours of 12pm and 5pm on Monday 22 October 2007. This statement must summarise the Authority’s decision and contain an apology to viewers.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to section 16(4) of the Act, the Authority orders Alt TV Ltd to pay to the Crown costs in the amount of $5,000, within one month of the date of this decision.

The orders for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
10 October 2007

Appendix

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

1            Pia Barnes’ formal complaint to Alt TV – 7 February 2007
2           Ms Barnes’ referral to the Authority – 19 March 2007
3           Alt TV’s response to the Authority – 26 June 2007
4           Ms Barnes’ response to request for submissions on orders – 28 August 2007
5           Alt TV’s submissions on orders – 18 September 20

¹See: Freedoms and Fetters (Chapter 6), 2006.

²See Decision No. 2004-129, paragraph [147].