BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

A 1 News presenter used the term ‘gypsy day’ when reporting on the annual relocation of sharemilkers. The Authority upheld a complaint that this breached the discrimination and denigration standard. The Authority highlighted the importance of responding to societal change: terms that may have been acceptable in the past, may not necessarily be acceptable in the future. While not used to express malice or hatred, the phrase is derogatory and evokes prejudicial biases towards the Roma community. When used in this context, it is capable of embedding existing negative stereotypes.

Upheld: Discrimination and Denigration

No order

The broadcast

[1]  A segment of 1 News on 1 June 2020, covering the annual relocation of sharemilkers, began:

It's the biggest day on the sharemilking calendar. The 1st of June, known as Gypsy Day, when thousands of farmers move house this year. It's also on World Milk Day and it's been marred by COVID-19 restrictions.

[2]  We have viewed a recording of the broadcast and read the correspondence listed in the Appendix.

The complaint

[3]  Mr Cant complained the broadcast breached the discrimination and denigration standard. He argued the term ‘gypsy day’ ‘is offensive to one of our smallest and least visible ethnic and cultural communities’. He said the use of the term ‘presents us as a nation that is willing to discriminate against minority ethnic and cultural communities’. He added the alternative term ‘moving day’ could have been used.

The broadcaster’s response

[4]  TVNZ did not uphold Mr Cant’s complaint saying:

• The programme did not reach the threshold necessary to conclude it encouraged discrimination against, or denigration of, a section of the community.
• There was a factual basis for the use of the term. ‘Gypsy day’ is a term commonly known in the dairy community as the day on which sharemilkers relocate.
• The term is a colloquialism referencing the itinerant aspect of sharemilking, rather than any perceived negative or undesirable trait.
• It was not used with pejorative intent or to express condemnation of a section of the community.

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. It applies only to recognised ‘sections of the community’, consistent with the grounds for discrimination in section 21 of the Human Rights Act 1993.¹

Our analysis

[6]  Freedom of expression is our starting point in considering complaints. We weigh this, which includes the broadcaster’s right to impart ideas and information and the public’s right to receive that information, against the level of actual or potential harm caused. We may only uphold complaints where the limitation on the right is reasonable and demonstrably justified in a free and democratic society.

[7]  The complainant argues the term may be offensive to, and have the potential to encourage discrimination against, the Roma or Romani community.

[8]  The Roma or Romani community is a relevant section of the community for the purposes of the standard. The key issue is whether the term used encouraged discrimination against or denigration of that community. ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment; and ‘denigration’ as devaluing the reputation of a particular section of the community.²

[9]  The following factors are relevant to our assessment:

• The term is commonly used colloquially to reference the mass movement of stock.³
• It was not used with any intention to condemn, and did not contain nastiness or malice.
• The term was not directed at the Roma community.

[10]  On the other hand:

• The term is recognised as a racial slur referencing a long history of persecution and racism.⁴ Some liken it to the n-word when describing African Americans.⁵
• While, as the complainant notes, the Roma community is ‘one of our smallest and least visible ethnic and cultural communities’, within New Zealand there is growing recognition of the offensiveness of this term.⁶
• TVNZ had full editorial control over the host’s introduction and there is an alternative term (‘moving day’) which could have been used.
• While referred to as ‘gypsy day’ it is officially known as ‘moving day’⁷ - a terminology change which is being embraced and led by the farming community.⁸

[11]  As we have previously recognised, the use of pejoratives as part of ordinary vernacular, even though unintentional, has the potential to cause harm by normalising racism.⁹ The use in broadcasts can reinforce such casual usage. We caution broadcasters to avoid contributing to this.

[12]  In our recent decision Waxman and Television New Zealand Ltd, we adjusted our approach when dealing with complaints under the discrimination and denigration standard.¹⁰ This was to reflect current community standards and values, and to ensure we capture underlying prejudice which may be missed by the rigid application of existing guidelines. Broadcasters must also respond to societal changes and recognise terms acceptable in the past may not necessarily be acceptable in the future. While ‘gypsy day’ has been colloquially used over some years, society’s views of the term have changed.¹¹

[13]  Considered through the lens of today’s society, even though not used to express malice or hatred, the term is derogatory and evokes prejudicial biases towards the Roma community. Its use may also reduce Roma community members to an inaccurate stereotype. Used in this context, it is capable of embedding existing negative stereotypes, devaluing the reputation of this community and encouraging discrimination against it.

[14]  The right to freedom of expression does not justify the use of such a phrase.  We therefore found this broadcast to be in breach of the discrimination and denigration standard.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand of 1 News on TVNZ 1 on 1 June 2020 breached Standard 6 (Discrimination and Denigration) of the Free-to-air Television Code of Broadcasting Practice.

[15]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. Considering that we have recently adjusted our approach, and this item was broadcast prior to the Authority’s decision signalling the change,¹² we concluded no order is warranted.

[16]  The publication of this decision is sufficient to: publicly notify the breach of the discrimination and denigration standard and censure the broadcaster; and to provide guidance to TVNZ and other broadcasters regarding the need for consideration and care to be taken so as to avoid unintended harm.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

21 December 2020

Appendix

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

1  Garth Cant’s formal complaint – 2 June 2020

2  TVNZ’s response to the complaint – 29 June 2020

3  Mr Cant’s referral to the Authority – 7 July 2020

4  TVNZ’s confirmation of no further comment – 20 August 2020

¹ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15
² Guideline 6a
³ “Meet Golder Wardell, the man who coined the phrase Gypsy Day” The New Zealand Herald (online ed, Northland, 12 June 2017)
⁴ Jewish Family and Children’s Services Holocaust Center (2 August 2018) “Europe’s most persecuted minority” <www.holocaustcenter.jfcs.org>; Hulmequist, Rumyana “Celebrating a business named with a racial slur is ignorant” StarTribune (online ed, Minnesota, United States, 13 June 2019)
⁵ Jim C. Hines (3 November 2016) "Racism and The Romani People" <jimchines.com>
⁶ Hamish McNeilly “Otago Regional Council’s u-turn over use of ‘gypsy day’” Stuff  (online ed, New Zealand, 26 May 2017); Laine Moger "Facebook cracks the whip on Kiwis using the term 'gypsy'" Stuff (online ed, New Zealand, 3 February 2019); "Unruly tourists fallout: Move to ban word 'gypsy' from Kiwi business names" The New Zealand Herald (online ed, New Zealand, 8 February 2019); The New Zealand Institute of Agricultural & Horticultural Science Inc (22 April 2020) “Cows will be on the move on 1 June – but the language used to describe the occasion can raise hackles” <agscience.org.nz>
⁷ Beehive (22 April 2020) “Minister gives Moving Day the green light” <https://www.beehive.govt.nz>
⁸ Dairy NZ “Moving Day” <dairynz.co.nz>; Federated Farmers (13 May 2020) “Member Advisory: COVID 19” <fedfarm.org.nz> ; OSPRI “Moving Farm/Moving Day” <ospri.co.nz>
⁹ Greetham and Sky Network Television Ltd, Decision No. 2019-059 at [12]
¹⁰ Waxman and Television New Zealand Ltd, Decision No. 2020-042 at [9]
¹¹ See examples cited at footnote 6
¹² Waxman and Television New Zealand Ltd, Decision No. 2020-042