BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Warning: This decision contains language that some readers may find offensive

Summary  

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

The Authority has issued a split decision in relation to the broadcast of a 14-year-old episode of Intrepid Journeys on Whakaata Māori. The broadcast contained the statement that staff at a Pakistani bakery were ‘working like n*****s out the back’. The complainant submitted that this phrase, and others in the broadcast, were discriminatory and denigrated the local people. Noting the age of the programme, the style of humour and audience expectations of the programme, and the lack of malice in the statements, the Authority unanimously declined to uphold the complaint in relation to most of the statements complained about. However, the Authority was split on its decision in relation to the use of the ‘n-word’. The majority upheld the complaint, finding the use of the ‘n-word’ was derogatory, evoked prejudice, and was capable of embedding negative stereotypes. The minority found insufficient malice and condemnation in the use of the word in the context, and noting that the phrase was directed at working conditions rather than at any particular class or group of people, did not find a breach of the standard. Due to the decision not being unanimous, and the broadcaster’s swift action to remove the ‘n-word’ from the broadcast, no orders were made.

Upheld: Discrimination and Denigration

No Order

The broadcast

[1]  Intrepid Journeys was a long running New Zealand television programme, with several series produced between 2003 until 2009. The premise of the show was to take celebrity guest presenters from the comfort of their home to less-travelled paths in varied countries and cultures. The appeal of the show was to see a personality rise to a challenge, and was a chance to gather knowledge and understanding of places, lives, events, and happenings foreign to Western culture. Although the presenters were celebrities, they travelled and lived as the locals did - rode bumpy local buses with chickens and goats, stayed in villages and ate traditional food which stretched the palate.

[2]  The episode complained about was produced in 2007 for Television New Zealand, and was re-broadcast on 23 April 2022 by Whakaata Māori. It showed a guest presenter traveling for two weeks from China to Pakistan along the Silk Road and over the Khyber Pass. The show was unscripted and followed the presenter on his journey, filming his interactions with locals and containing some narration by the presenter. Relevant sections from the broadcast include:

Ceremony in Karimabad

• ‘It’s party time in Karimabad and the village shaman is building himself into a trance… And later on, we are going to see, when it builds to a crescendo I understand, a goat gets whacked. They’re playing a rhythm that is supposed to get the shaman into a stupor. And he has just done the business. At a certain part of the ceremony, and I still don’t understand it, the shaman goes nuts and then does a prance around, and they slit the throat of a goat… They’ve just knocked the head off a goat, handed it to him, and he’s having a good munch on it... The point of all this is to get a fortune telling from the shaman, although I’ve gotta tell ya, he doesn’t look like the full quid. That ceremony, that’s the first time in two years it’s been practiced. So that’s quite an amazing ritual they have just relived. I think it was pretty good that they did it for us anyway. And he is just coming around, like he’s on P or something. I’m still trying to work it out myself. Hey, you know, as I say, good on him.’

Ramadan

• ‘They’ve got Ramadan on over here which means none of them can eat or drink between daylight hours. I’m having a sneaky little munch up here by myself… [Hotel staff member comes in with food and water] Good on you mate. Ramadan eh. [laughing] You can close the door now. Don’t tell anyone.’
• ‘There’s five prayers in a day. They have just finished their third one. Just as the sun goes down, that is when they will be getting right into their munchies. I’d challenge any Kiwi to do the fast. Some of our women have done it I understand. Lost huge amounts of weight. [laughter] But not for religious reasons.’
• ‘Ramadan is about denying the body its desires and urges, but I can’t help wondering if it means these blokes will just eat twice as much when the sun goes down. You’ve just witnessed the fastest baker in Peshawar. The sunset is coming and people are allowed to break Ramadan and eat, and so they are coming here with their orders for their meals, and mate are they working like niggers out the back there.’¹
• ‘That’s it, you hear that noise. Fuck are they going for it. They are all getting into it. They’ve rushed the tea shop. They are now able to go for it you know, and boy did they ever. They’re eating, drinking, smoking. It’s a feeding frenzy. One of the biggest munch-ups. They all piled into their shops and away they went.’

Interactions with salespeople

• ‘But gifts can turn quickly into transactions over here, and I’ve been duped. [Standing, pointing at juice seller] Don’t ever buy from people like this if you come here alright. Especially that little crook. You have it mate… At the end of a day like today I feel like smacking him over. There is always an angle eh. You get the wonderful friendliness, getting the engagement going, and then business. But you gotta expect that. Nothing is for nothing around here.’
• ‘Turns out this old Afghani guy has got a Bin Laden fetish.’ [Barters for some Bin Laden T-Shirts] ‘Just remember, we’re from New Zealand. You’ve ripped a poor Māori boy off.’

Description of the Pashtun tribesmen

• ‘The Pashtuns have been able to assert that level of dominance and autonomy because they’re deemed to be quite mad bastards aye. Well-armed mad bastards at that.’ [Later] ‘Those mad Pashtuni tribesmen could be on their way.’

The complaint

[3]  The Buxtons complained that the broadcast breached the discrimination and denigration standard of the Free-to-Air Television Code of Broadcasting Practice. They stated:

• The presenter’s ‘lack of respect for Ramadan and breaking fasts in the evening was embarrassing.’
• ‘He made the comment that people were "working like [n*****s] out the back" followed by a laugh. This is not an acceptable expression on public television about people who are hosting you in today's world.’
• ‘He was not impressed when engaged with bargaining for an item and was rude, angry and dismissive at a personal level about the trader.’
• ‘The whole tone of the programme could encourage further discrimination towards Muslims and Pakistan. His aside comments "to Māori boys" back home added to the poor tone. This was not a BBQ with friends and family where [the presenter’s] sense of humour may be tolerated but a programme designed to inform us a little about Pakistan and presumably encourage understanding of a way of life. Opinions can be shared but not in such a denigrating way.’

The broadcaster’s response

[4]  Whakaata Māori did not uphold the complaint. Its comments are summarised below:

• The programme (originally produced for TVNZ) was 14 years old.
• ‘When viewed as a whole, and in context, [Whakaata Māori] do not believe this episode of Intrepid Journeys breached Standard 6. While Whakaata Māori did not produce the series, we believe it does represent important moments in time and of our own journey as a nation, in particular, how our personal opinions and interactions with all cultures has evolved over time.’
• The episode did not display the necessary high level of condemnation or denigration for a breach of this standard. The presenter does not exhibit malice or nastiness towards the communities he visits as a whole, nor does the episode encourage the different treatment of Pakistani people or those of Muslim faith.
• The episode showed the presenter’s characteristic self-deprecating and irreverent humour, including many humorous one-liners. The presenter is, and was at the time, ‘well known for publicly expressing his opinions in a forthright manner in the broadcast media, but often interspersed with humour and a fair amount of satire. The same applies to this episode.’
• This was the presenter’s personal journey and the intention of the series is ‘to take kiwis out of their comfort zone and honestly film their honest reactions to whatever transpires.’ The strength of the series is ‘its unstructured production — with no safety nets, and a dose of culture shock thrown in — turned out to be a great lesson in how the human psyche works.’
• There was public interest in the show.
• The presenter also provided a more serious side and many poignant moments, including speaking about the difficulties of sectarian division, the tragedy of an earthquake-devastated village, and acknowledging the privilege of witnessing Ramadan. ‘Ramadan is not condemned in any way as a religious practice or belief.’
• ‘There is no encouragement of discrimination against anyone, nor denigration of anyone simply as a result of their nationality, or legitimate expression of religion, culture, or political belief. The presenter’s constant references to “back home” continually underlines the differences between the cultures of the places he visits and his own. It references the closeness New Zealanders have to their whenua and, in particular, Māori to Aotearoa.’
• Whakaata Māori agree that ‘the world has changed but are mindful of sanitising the world and opinions captured in a moment in time. [Whakaata Māori] also agree that words used 14 years ago may be less acceptable today depending on context. Regardless, the reference to “working like a n***** out the back” has now been edited with the ‘n’ word bleeped from the episode on all Whakaata Māori platforms.’
• ‘The bargaining scenes in the markets are all too common with any international travel. The vendors are inevitably tough bargainers and famous for haggling.’ The presenter’s humour “rip the poor Māori boy off” typifies how many travellers/tourists rightly or wrongly see the bargaining experience they have indulged in. ‘The joke here is really on [the presenter].’

The standard

[5]  The discrimination and denigration standard protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.²

Our analysis

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

[7]  As a starting point, we considered the important right to freedom of expression, which includes the broadcaster’s right to offer a broad range of ideas and content, and the audience’s right to receive that content. Our task is to weigh the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the limitation on the right to freedom of expression is reasonable and justified.³

[8]  The Authority found this to be a complex and challenging complaint to decide, and ultimately was split on whether to uphold one aspect.

[9]  Collectively, we recognised the high value and public interest in this programme. We also appreciated the perspectives put forward by the broadcaster in support of this programme and the unique offerings of Whakaata Māori generally. The Authority unanimously agreed that the statements (not including the use of the n-word), did not reach the threshold required to justify restricting the broadcaster’s freedom of expression. The Authority was split in its decision in relation to the use of the ‘n-word’.

[10]  A majority of the Authority (Susie Staley, Tupe Solomon-Tanoa’i and John Gillespie) found the broadcast did reach the threshold justifying regulatory intervention in relation to the use of the ‘n-word’, finding the pejorative nature of the word, and its potential to cause harm, outweighed the broadcaster’s right to freedom of expression. The minority (Aroha Beck) considered the broadcast did not reach the threshold justifying regulatory intervention, in relation to the use of the ‘n-word’, as the programme as a whole did not contain sufficient malice or condemnation, the term was not directed at any specific group, the content was created 14 years ago, and Whakaata Māori had been proactive in removing the word from the broadcast once the initial complaint was raised.

[11]  As the Authority agreed on the facts and applicable principles, as well as the remaining aspects of the complaint, these areas are outlined first before addressing the majority and minority decisions regarding the ‘n-word’.

Discrimination and Denigration

[12]  The complainants alleged that the broadcast discriminated against and denigrated both Pakistani and Muslim communities, in its comments and portrayal of the people in Pakistan. We agree that Pakistani and Muslim peoples are relevant sections of the community for the purpose of this standard.

[13]  ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community to their detriment. ‘Denigration’ is defined as devaluing the reputation of a particular section of the community. A high level of condemnation, often with an element of malice or nastiness, will usually be necessary to find that a broadcast encouraged discrimination or denigration in breach of the standard.⁴

[14]  Context must always be considered when assessing whether a broadcast encouraged discrimination or denigration.⁵ We have taken into account the following contextual factors:

• The programme was unscripted and followed New Zealand personalities around various parts of the world as that person explored other cultures.
• Audiences would have expected an authentic account of the presenter’s experience on his journey.
• The statements were not said with malice or nastiness.
• As Whakaata Māori stated: ‘In many respects, [the presenter] displays a distinctive trait of Māori satire, where what is said often means the opposite. This came into full force throughout the journey. At the outset, it is made clear that he is a “boy from West Auckland” thereby instantly telling the perspective from where he is coming from in the opinions he shares throughout the episode.’
• ‘As with most of the interactions [the presenter] has, viewers can form their own judgment as to whether they empathise with him and what he is experiencing or disagree.’
• Whakaata Māori is New Zealand’s national indigenous media organisation with a vision of working to ensure Māori are thriving (through te ao Māori, tikanga Māori and te reo Māori thriving).⁶ Its audience is likely to appreciate that its programmes come from this cultural context and understand the presenter’s humour and colloquialisms, which are often addressed to an audience of his whanau and to other Maori, in this light. As Whakaata Māori stated, the presenter’s ‘constant references to “back home” continually underlines the differences between the cultures of the places he visits and his own. It references the closeness New Zealanders have to their whenua and, in particular, Māori to Aotearoa.’
• The broadcast was pre-recorded prior to its original airing in 2007, and rebroadcast recently on Whakaata Māori.

[15]  On the other hand, we noted:

• The programme had a G classification.
• The language chosen was unnecessary to convey the view that the staff at the bakery were working hard.
• Whakaata Māori had full editorial control to bleep out the ‘n-word’, which it demonstrated by its subsequent choice to censor the word.
• Despite the show being made for a different broadcaster 14 years ago, the show was broadcast in today’s setting, where attitudes towards, and understanding of the impact of such racial slurs, have changed.
• New Zealand has a growing diverse community including Muslims, and people of Pakistani descent as well as Black New Zealanders⁷, who may have been offended by the programme.
• The use of the n-word in the broadcast likened the experience of the people working in the bakery, to that of black people being made to work as slaves. In this context the word is highly offensive to the people referred to, as well as Black New Zealanders and the wider Black diaspora, even though they weren’t the subject of the complaint.  

Statements about the Shaman, bartering and Ramadan (not including the ‘n-word’)

[16]  While the Authority acknowledged that many of the aspects of the broadcast complained about had the potential to offend, that is not in itself sufficient to find the programme encouraged discrimination or denigration. Both the majority and minority of the Authority agreed the statements under this heading did not, in the context, reach the threshold required for a breach. In reaching this view we were influenced in particular by the mitigating contextual factors listed above at [14]; the age of the programme; Whakaata Māori’s detailed response explaining the style of humour and satire of the presenter (which is protected by freedom of expression); and audience expectations of the programme as a whole, which carried value and public interest.

Majority view – use of the ‘n-word’ (Susie Staley, Tupe Solomon-Tanoa’i and John Gillespie)

[17]  After careful consideration, the majority found Whakaata Māori’s choice to rebroadcast the programme with the statement ‘working like n*****s out back’ could not be justified by the contextual factors above. There may still be contexts in which the n-word’s use can be justified in a broadcast. The Authority has already had cause to consider a number of such contexts.⁸ However, we do not agree that the particular context here justifies the casual use of such a pejorative term.

[18]  The majority acknowledge Whakaata Māori’s submission that we should be cautious about ‘sanitising the world and opinions captured in a moment in time’. However, as a regulatory body tasked with reflecting evolving community standards and values, each complaint we determine must be considered not only within its context at the time of broadcast, but also with the knowledge and understanding we hold in the present moment.⁹ By the same token, broadcasters need to be alert to these issues and shifts in community attitudes when deciding to rebroadcast programmes originally produced and broadcast many years ago.

[19]  The ‘n-word’ was found to be the most offensive word in the Authority’s latest Language That May Offend in Broadcasting survey.¹⁰ Approximately 82% of respondents considered the word to be ‘fairly or totally unacceptable’ in a reality TV programme. The Merriam-Webster Dictionary also states the word ‘ranks as almost certainly the most offensive and inflammatory racial slur in English, a term expressive of hatred and bigotry.’¹¹

[20]  Even when not expressed with malice or intention to condemn, words such as this, used as part of ordinary vernacular, have the potential to cause harm by normalising racism.¹² Their use in broadcasts can reinforce and encourage such casual usage and we have previously cautioned broadcasters to avoid contributing to this.¹³ Considered through today’s lens, the statement that the bakery staff were “working like n*****s”, was derogatory and evoked prejudicial biases towards those referred to. The use of the slur in and of itself was derogatory, and further it was used in a context that evoked racial stereotypes associated with the slur. This denigrated the bakers being spoken about, as well as people historically impacted by the word.

[21]  The majority do not consider in this instance the right to freedom of expression justifies the rebroadcast of a harmful, now widely condemned term that embeds negative stereotypes – notwithstanding the value and public interest in the programme as a whole. Upholding this one aspect of the complaint does not, in our view, unreasonably restrict freedom of expression, and this is supported by the broadcaster’s swift acknowledgment and action to remove the offending word from the programme. We are not saying the programme should not have been broadcast at all. 

[22]  We therefore uphold the complaint on this point, as a breach of the discrimination and denigration standard. We would also advise broadcasters to be careful when rebroadcasting old material, to consider the interests of those featured and ensure compliance with the standards of the day.

Minority view – use of the ‘n-word’ - (Aroha Beck)

[23]  Looking at the whole of the segment about Ramadan, I did not see it evidencing a high degree of condemnation, malice, or nastiness. The presenter noted his understanding that Ramadan is about denying the body’s desires and urges and questions whether fasting during daylight hours does that, observing the emphasis on the evening meal. The phrase “working like n*****s” would probably have been outdated even in 2007 when the episode was first broadcast.¹⁴ However, having watched the broadcast, I did not see the words as being directed at any particular class or group of people based on race or ethnicity. The presenter was referring to staff “out the back”. Those staff were not visible on screen. Even if we were to assume that the bakery workers out back belonged to a single class or group of people, it is difficult to see how the use of that particular cultural metaphor is likely to denigrate or diminish the reputation of the Pakistani people or Islam.

[24]  The phrase or saying 'working like n*****s' is no longer acceptable in our society. It brings connotations of racial inferiority and might be seen to make light of the experience of African-American slaves and the legacy of racial discrimination today. However, the phrase or saying “working like n*****s” was once well-understood to indicate unreasonable or inhumane working conditions. In the context of the point that the presenter was making about the behavioural response to fasting, it was clear that that is the sense in which he was using the term. It was not used with malice or nastiness, or directed in a belittling or denigrating way at a specific person or class of persons. In my opinion it does not breach the discrimination standard, even when considered in light of the knowledge and understanding we hold today following the Authority’s decision in Waxman.¹⁵  

[25]  I am also conscious that Whakaata Māori has reflected on the issues raised in the complaint and subsequently bleeped that word out of the broadcast. Given the change in perception in Aotearoa about the use of the ‘n-word’ there may come a time when it will require a regulatory response regardless of the context in which it is broadcast. We are not there yet. I am not persuaded that any limit on freedom of expression would be reasonable or demonstrably justified in this case.

[26]  I also note that this complaint raises an issue of fairness. In my view, caution is required when looking at old footage with modern eyes, particularly when the people captured in that broadcast – speaking and expressing themselves at a point of time – have no control over whether and when it may be rebroadcast. The regulatory intervention may be directed at the broadcaster but it is the person who was speaking whose reputation may be impacted.   Where a matter is finely balanced, as in this case it was for me, that is an important contextual factor.

[27]  Accordingly, I would not uphold this aspect of the complaint.

Conclusion

[28]  In conclusion, while there is agreement amongst the Authority regarding the principles that govern our decision and in relation to the majority of the statements complained about, there is a difference in position with respect to the application of these principles to the use of the ‘n-word’ in this broadcast. As the majority of the Authority members have found the broadcast breached the standard, the complaint is upheld.

For the above reasons the Authority upholds the complaint that the broadcast by Whakaata Māori of Intrepid Journeys on 23 April 2022 breached Standard 6 (Discrimination and Denigration) of the Free-to-Air Television Code of Broadcasting Practice.

[30]  Having upheld the complaint, we may make orders under s 13 and s 16 of the Broadcasting Act 1989. We are not doing so in this case given our decision was not unanimous and Whakaata Māori has already removed the offending word from the broadcast.

Signed for and on behalf of the Authority

Susie Staley
Chair
31 August 2022    

Appendix

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

1  Peta and Andrew Buxton’s formal complaint – 4 May 2022

2  Whakaata Māori’s response to the complaint – 7 May 2022

3  The Buxtons’ referral to the Authority – 9 May 2022

4  Whakaata Māori’s response to the referral – 17 May 2022

5  The Buxtons’ final comments in response – 10 June 2022

¹ We have included this word in full on one occasion, for accuracy of reference purposes, but subsequently censored the word, in recognition of its offensiveness.
² Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15
³ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁴ Guideline 6b; Cant and Television New Zealand Ltd, Decision No. 2021-030 at [14]
⁵ Guideline 6d
⁶ “About Us” (accessed 14 July 2022) Whakaata Maori <whakaatamaori.co.nz> 
⁷ Guled Mire, Rita Wakefield & Mazbou Q “The N-word, hip hop, and anti-Black racism in Aotearoa” E-Tangata (online ed, 10 April 2022)
⁸ For example, see Avery and NZME Radio Ltd, Decision No. 2018-076; Alexander and Television New Zealand Ltd, Decision No. 2021-021
⁹ Waxman and Television New Zealand Ltd, Decision No. 2020-042 at [9]
¹⁰ “Language That May Offend in Broadcasting” (Broadcasting Standards Authority, 17 February 2022) page 31
¹¹ Merriam-Webster Dictionary “Nigger” <www.merriam-webster.com>
¹² Waxman and Television New Zealand Ltd, Decision No. 2020-042 and Cant and Television New Zealand Ltd, Decision No. 2020-071
¹³ Cant and Television New Zealand Ltd, Decision No. 2020-071 at [11], Greetham and Sky Network Television Ltd, Decision No. 2019-059 at [12]
¹⁴ Alona Wartofsky “Protesters See No Affection In J.Lo's Use of Racial Epithet” The Washington Post (online ed, 14 July 2001)
¹⁵ See Waxman and Television New Zealand Ltd, Decision No. 2020-042, where the complaint was upheld on the basis that the phrase used, while not expressing malice, was derogatory and evoked prejudice, and was capable of evoking existing negative stereotypes.