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 that the inclusion of a clip during Seven Sharp of two people pitch invading or ‘streaking’, one of whom was in a wheelchair, breached the promotion of illegal or antisocial behaviour standard. While the Authority acknowledged streaking is illegal at major sporting events, the streaking in the clip occurred at a club football match. The reason the clip was highlighted and presented in a positive light was because one of the streakers was in a wheelchair, which is not a typical occurrence, and because the clip had been shared around the world. Further, at the beginning of the clip the host explicitly commented ‘Pitch invasion is frowned upon these days.’ In the circumstances, the Authority found the clip was unlikely to promote or encourage streaking.

Not Upheld: Promotion of Illegal or Antisocial Behaviour

The broadcast

[1]  The ‘Friday Countdown’ segment of the 23 June 2023 broadcast of Seven Sharp featured five light‑hearted clips from the week in a countdown. The number one clip of the week was footage of two people pitch invading while naked, or ‘streaking’, at a club football match in Auckland. One of the two ‘streakers’ was in a wheelchair. While the clip aired, host Jeremy Wells made the following comments:

Pitch invasion is frowned upon these days. But last weekend in Auckland, two streakers created smiles that soon travelled around the world, after a naked dash during a soccer match between [Club 1] and [Club 2]. Which is why we're naming the man in the wheelchair our New Zealander of the Week. It was fantastic. What a great New Zealander.

[2]  The streaker who was running was covering their genitals with their hand. While the streaker in the wheelchair was not, the clip was filmed from a distance and their genitals were not visible.

The complaint

[3]  In his original complaint to the broadcaster, Lloyd Brewerton complained the broadcast breached the offensive and disturbing content standard of the Code of Broadcasting Standards in New Zealand as ‘Such behaviour is antisocial and had no place in the top [five] for the week which will only continue to encourage such behaviour.’

[4]  However on referral to the Authority, the complainant only raised the promotion of illegal or antisocial behaviour standard, including the following key submissions:

• ‘The Country is sick of people interrupting sport matches by invading the fields. This is clearly [antisocial] behaviour being encouraged by our state broadcaster as the number one of the top [five] picks of the week.’
• ‘To make matters worse in this case the person was naked and even though their genitals were covered, it is not appropriate to show such things [during] prime time viewing.’
• Streaking is serious antisocial behaviour.
• The broadcast encouraged this behaviour because ‘When people post their crimes on social media it causes others to see if they can out do them. That’s what TVNZ have encouraged in this case.’

The broadcaster’s response

[5]  TVNZ did not uphold Brewerton’s complaint for the following key reasons:

• The following contextual factors were relevant:
  • ‘Seven Sharp is aimed at an adult audience.’
  • Adult supervision is expected during news and current affairs broadcasts.¹
  • News and current affairs broadcasts often contain distressing content.
  • The complaint concerns the light-hearted comment that the man streaking in the wheelchair was Seven Sharp's 'New Zealander of the Week.’
  • ‘[TVNZ] considers that the unofficial accolade is not intended to promote serious anti-social behaviour, rather it is a recognition that the man's actions were unique in the world of streaking, and because of this had been reported around the world. We do not consider that it would be a realistic outcome of this segment, or the comment, that multiple people in wheelchairs will invade the pitch of games to streak. Accordingly, we do not agree that the segment is likely to offend or disturb a significant number of viewers.’
  • ‘The segment was consistent with the kind of quirky and interesting topics which often feature on the programme, and the tone was typical of the light-hearted approach which would be expected by viewers.’
• ‘While [TVNZ] understands that you did not like the footage we do not agree that it would offend or disturb a significant number of viewers in the context of screening.’

Jurisdiction

[6]  On referring their complaint to the Authority, the complainant raised the promotion of illegal or antisocial behaviour standard,² instead of the standard raised in the initial complaint (offensive and disturbing content).

[7]  TVNZ considered the Authority should not consider the promotion of illegal or antisocial behaviour standard on referral as it was not raised in the initial complaint, noting:

We acknowledge that the complainant used the word ‘antisocial’ in his complaint. However, it is reasonable that a viewer might find what they believe is ‘antisocial’ behaviour to be offensive, and therefore might complain about it under [the offensive and disturbing content standard] (as the complainant did in his original complaint). Simply by saying something is antisocial should not by default implicitly nominate [the promotion of illegal or antisocial behaviour standard]. In any case, [the promotion of illegal or antisocial behaviour standard] is concerned with serious antisocial behaviour, which the material in question was not.

[8]  The complainant disagreed with TVNZ as use of the term ‘antisocial’ meant the standard could be raised on referral.

[9]  The Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording of the initial complaint, and where it is reasonably necessary in order to properly consider the complaint.³

[10]  Brewerton’s initial complaint included the phrase ‘Such behaviour is antisocial and had no place in the top [five] for the week which will only continue to encourage such behaviour’. As the complainant highlighted the behaviour as allegedly antisocial and argued the broadcast had the potential to encourage the behaviour, we consider that the promotion of illegal or antisocial behaviour can reasonably be implied into the wording of the initial complaint.

[11]  We also consider it reasonably necessary to imply the standard in order to properly consider the complaint. While we acknowledge context is crucial in the assessment of both the offensive and disturbing content⁴ and promotion of illegal or antisocial behaviour standards,⁵ the latter standard has a different focus, being whether broadcasts are likely to ‘promote illegal or serious antisocial behaviour’. Given the different lens, we consider it appropriate to imply the standard and address the particular concerns raised under this standard.

[12]  Given the complainant has not referred their complaint to the Authority under the original standard nominated (offensive and disturbing content), we shall proceed to assess the complaint in relation to just the promotion of illegal or antisocial behaviour standard.

The standard

[13]  The purpose of the promotion of illegal or antisocial behaviour standard⁶ is to prevent broadcasts that encourage audiences to break the law, or are otherwise likely to promote criminal or serious antisocial activity.⁷ Context, and the audience’s ability to exercise choice and control, are crucial in assessing a programme’s likely practical effect.⁸

Our analysis

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

[15]  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 demonstrably justified in a free and democratic society.⁹

[16]  The complainant’s concern under the promotion of illegal or antisocial behaviour standard is that showing footage of streakers at a football match as the number one choice in the ‘Friday Countdown’ segment would encourage others to streak at sports matches, which the complainant argues is serious antisocial behaviour.

[17]  The context of the programme and the wider broadcast are important considerations when assessing complaints under the promotion of illegal or antisocial behaviour standard.¹⁰ The key contextual factors relevant here include:

• Seven Sharp is a current affairs programme airing at 7pm, aimed at an adult target audience.
• The ‘Friday Countdown’ is a light-hearted segment where various stories and clips are featured, including in this instance stories concerning a swarm of crickets, a new species of dinosaur being discovered, vampire deer, turtles with trackers attached, a herd of goats decimating a garden, whale watching and a grilling competition in Argentina, yoga in India, and summer solstice celebrations at Stonehenge.
• The clip of streakers at a club football match in Auckland was the ‘number one’ clip of the week.
• The clip began with the following voiceover: ‘Pitch invasion is frowned upon these days’.
• The clip was presented in a light-hearted and positive manner, largely due to the rarity of a streaker being in a wheelchair, which the host noted ‘created smiles.’
• The host also described the streaker in the wheelchair as ‘New Zealander of the Year’ and ‘fantastic’.

[18]  The standard does not stop broadcasters from depicting antisocial behaviour; it is concerned with broadcasts that actively promote or encourage serious antisocial (or illegal) behaviour.¹¹

[19]  Streaking is illegal at major sporting events under the Major Events Management Act 2007.¹² However the streaking broadcast was not at a major sporting event (being a club football match in Auckland). On the other hand, there may be some argument that streaking is capable of infringing other legislation.¹³ Accordingly, we have assumed the standard applies for the purposes of considering this complaint.

[20]  The Authority has previously found that presenting antisocial behaviour in a humorous or light-hearted way can incite people to copy the behaviour.¹⁴ However we do not consider the broadcast likely had the effect of encouraging streaking in general. We note the host explicitly commented at the beginning of the clip ‘Pitch invasion is frowned upon these days’. The reason the clip was highlighted and presented in a positive light was because one of the streakers was in a wheelchair, which is not a typical occurrence, and because the clip had been shared around the world. Further, while the clip briefly showed another streaker who was not in a wheelchair, it was clear this person was not the focus of the broadcast and was not commented on by the host.

[21]  On this basis we do not consider the broadcast was likely to promote illegal or serious antisocial behaviour. The complaint does not justify a limit being placed on the broadcaster’s right to freedom of expression.

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

Susie Staley
Chair
3 October 2023  

Appendix

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

1  Lloyd Brewerton’s initial complaint to TVNZ – 23 June 2023

2  TVNZ's decision on the complaint – 18 July 2023

3  Brewerton's referral to the Authority – 20 July 2023

4  TVNZ’s further comments – 1 September 2023

5  Brewerton’s further comments – 4 September 2023

6  TVNZ’s further comments – 5 September 2023

7  Brewerton confirming no further comments – 5 September 2023

¹ Citing Bracey and Ee and Television New Zealand Ltd, Decision No. 2013-084 at [9]
² Standard 3, Code of Broadcasting Standards in New Zealand
³ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
⁴ Guideline 1.1
⁵ Guideline 3.1
⁶ Standard 3, Code of Broadcasting Standards in New Zealand
⁷ Commentary, Standard 3, Code of Broadcasting Standards in New Zealand at page 11
⁸ Guideline 3.1
⁹ Introduction, Code of Broadcasting Standards in New Zealand at page 4
¹⁰ Guideline 3.1
¹¹ Commentary, Standard 3, Code of Broadcasting Standards in New Zealand at 11
¹² Major Events Management Act 2007, s 27
¹³ Summary Offences Act 1981, s4
¹⁴ See Black and Discovery NZ Ltd, Decision No. 2021-162 at [14]