BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1C) of the Broadcasting Act 1989
ZM Morning Crew – game called “Racial Profiling” in which hosts and contestant were asked to decide whether individuals who had committed certain offences in the United States were “black, white or Asian” – allegedly in breach of good taste and decency, and discrimination and denigration standards

Findings
Standard 1 (good taste and decency) – on the face of it the game perpetuated racial stereotypes – however the outcome as broadcast demonstrated flaws in stereotyping – attempt at humour and satire – freedom of expression outweighed potential harm caused – contextual factors – not upheld

Standard 7 (discrimination and denigration) – broadcast did not encourage the denigration of, or discrimination against, any of the groups referred to as sections of the community – guideline 7a provides exemption for humour and satire – not upheld

This headnote does not form part of the decision. 

Introduction

[1]  During the ZM Morning Crew, broadcast on 8 June 2012, the hosts ran a competition called “Racial Profiling”, in which one of the hosts read news reports on strange offences committed in the United States, and the other two hosts, and the contestant who had phoned in, were asked to guess whether the perpetrators were “black, white or Asian”. The host introduced the game by saying:

You just need to tell us whether they’re black, white or Asian… [Contestant’s name] I could honestly say this is probably the only radio station that would ever play a game like this, and as long as you don’t complain, we won’t complain, does that sound fair?

[2]  Craig Carpenter made a formal complaint to The Radio Network Ltd (TRN), alleging that the segment was “completely inappropriate” and encouraged racial stereotyping.

[3]  The issue is whether the segment breached Standards 1 (good taste and decency) and 7 (discrimination and denigration) of the Radio Code of Broadcasting Practice.

[4]  The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the broadcast threaten current norms of good taste and decency?

[5]  In assessing an alleged breach of broadcasting standards, we must give proper consideration to the right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. Any restriction on the right to free speech must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5).

[6]  The starting point is to assess the value of the particular speech, and then to balance this against the potential harm that is likely to result from allowing the unfettered dissemination of that speech. The broadcast in this instance consisted of a game in which one of the hosts read out news stories about strange offences committed in the United States, while the other participants guessed the ethnicity of the perpetrators. Its primary purpose was humour and entertainment, though the outcome of the broadcast did inadvertently offer some commentary on the nature, and flaws, of stereotyping. The Authority has previously acknowledged,¹ and some standards in the Code recognise,² that humour and satire are important forms of speech, on which society places value. We therefore think we should be cautious about interfering with the broadcast of the segment, and its reception.

[7]  Standard 1 (good taste and decency) is primarily aimed at broadcasts that contain sexual material, nudity, coarse language or violence.³ The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.⁴

[8]  Here, the alleged harm, in terms of the underlying objectives of the standard, was said to derive from the fact the game allegedly perpetuated and encouraged racial stereotyping. Mr Carpenter argued that, “Encouraging listeners to judge an individual’s race based on a news report is completely inappropriate and encourages racial stereotyping.” He considered this was compounded by the fact that listeners won prizes for guessing the perpetrator’s race correctly.

[9]  TRN argued that ZM was an “edgy” radio station targeted at an audience aged 18 to 39 years. It said that the station and its hosts were known for “pushing boundaries” and this was one of the reasons it was popular with this demographic. TRN considered that, while the broadcast was at 6.45am and children could have been listening, “given the cheeky style of the station and the irreverent nature of the breakfast programme, ZM listeners are unlikely to have been surprised by this broadcast or unduly offended”.

[10]  When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast, which here includes:

• the segment was broadcast at 6.45am when children could be listening
• it was broadcast on ZM
• the radio station’s target audience of 18- to 39-year-olds
• audience expectations of ZM, and of the ZM Morning Crew

[11]  We acknowledge that, on the face of it, the way in which the game was framed perpetuated racial stereotypes, which causes some discomfort, and which some listeners would find offensive. Instinctively, this seems contrary to norms of decorum and civility.

[12]  Nevertheless, many forms of discourse, and particularly comedy, have used, and continue to use, racism and/or stereotyping as a basis for humour; these are clearly not intended to be taken seriously, and there is an evident lack of invective. This particular segment was evidently an attempt at “shock humour” and satire, and was consistent with audience expectations of the ZM Morning Crew, who are known to push boundaries for comedic effect.

[13]  In addition, the outcome of the game as broadcast demonstrated the flaws in racial stereotypes and prejudice; as noted by the broadcaster, the participants were mostly incorrect when guessing the ethnicities of the perpetrators of the bizarre offences described by the host. In this respect, the segment did not serve to perpetuate the alleged stereotypes featured, but had the opposite effect.

[14]  In these circumstances, and particularly considering that the target audience and ZM’s regular listeners are familiar with the Morning Crew’s style and brand of humour, the potential harm caused in terms of the objectives of Standard 1 was minimised. We consider that upholding this part of the complaint would unjustifiably restrict the right to freedom of expression.

[15]  We therefore decline to uphold this part of the complaint.

Did the broadcast encourage the denigration of, or discrimination against, any section of the community?

[16]  Standard 7 (discrimination and denigration) 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.

[17]  The term “denigration” has consistently been defined by the Authority as blackening the reputation of a class of people (see, for example, Mental Health Commission and CanWest RadioWorks⁵). “Discrimination” has been consistently defined as encouraging the different treatment of the members of a particular group to their detriment (see for example Teoh and TVNZ⁶).

[18]  It is also well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages discrimination in contravention of the standard (see, for example, McCartain and Angus and The Radio Network⁷).

[19]  As noted above, we recognise that a broadcast which, on its face, perpetuated racial stereotyping, would cause discomfort for many listeners. However, we do not consider that the broadcast, as it played out, encouraged negative stereotypes. First, the segment canvassed three racial profiles, rather than singling out one group, and did not amount to hate speech or vitriol. Second, as already outlined, the game was unsuccessful as the participants for the most part incorrectly guessed the ethnicities of the perpetrators, undermining the premise of racial stereotyping. Third, ZM listeners would have appreciated that the segment was intended to be humorous, rather than as an attack on any of the groups referred to. Finally, guideline 7a(iii) to Standard 7 recognises that the standard is not intended to prevent the broadcast of humorous or satirical discourse.

[20]  Taking all of these factors together, we do not consider that the programme blackened the reputation of, or encouraged the different treatment of, “black, white or Asian” people as sections of the community. The broadcast did not reach the high threshold or carry the level of invective necessary to encourage denigration or discrimination such that the importance of the right to freedom of expression was outweighed.

[21]  We therefore decline to uphold the Standard 7 complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
25 September 2012