Clapham and Mediaworks TV Ltd - 2018-089 (18 December 2018)
- Judge Bill Hastings (Chair)
- Paula Rose
- Wendy Palmer
- Susie Staley
- John Clapham
BroadcasterMediaWorks TV Ltd
[This summary does not form part of the decision.]
During a segment of The Project, the presenters discussed whether it was illegal to wear headphones while driving. One of the presenters, a well-known New Zealand comedian, said that he wore headphones while driving ‘because it drowns out the sound of the seatbelt warning’. The Authority did not uphold a complaint that the presenter’s comment trivialised an important road safety issue. The segment as a whole carried a positive road safety message, with the presenters sharing their surprise that wearing headphones while driving was not illegal in New Zealand (though distracted drivers could still be charged with careless driving). The comment was clearly intended to be humorous and the reactions of the other presenters balanced the comment and signalled to viewers that wearing your seatbelt was important. In this context, the presenter’s comment did not actively promote, encourage or glamorise illegal behaviour, and any limitation on the broadcaster’s right to freedom of expression would be unjustified.
Not Upheld: Law and Order
 During a segment of The Project, the presenters discussed whether it was illegal to wear headphones while driving. Presenter Kanoa Lloyd said that while the practice was not illegal, anyone found to be driving while distracted could be charged by Police with careless driving. The presenters then had the following exchange:
Ben Hurley I actually have to wear headphones while driving for a very serious reason and that is because it drowns out the sound of the seatbelt warning.
Jesse Mulligan I think you’ve got bigger problems.
Kanoa Lloyd Yeah, you need to wear your seatbelt.
 Ms Lloyd then went on to say how surprised she was that wearing headphones while driving was not illegal in New Zealand.
 The item was broadcast at 7.20pm on 30 August 2018 on Three.
The complaint and the broadcaster’s response
 John Clapham complained that the broadcast breached the law and order standard of the Free-to-Air Television Code of Broadcasting Practice, because in his view:
- Mr Hurley trivialised, and showed a flippant attitude towards, an important road safety issue. New Zealand has some of the highest deaths and injuries per capita on the road and failure to wear seatbelts was a major contributor towards this.
- The Project is targeted at young people and, while the comment was intended to be humorous, the broadcaster had a duty to ensure that Mr Hurley’s comment was not interpreted literally.
 MediaWorks responded:
- Mr Hurley’s comment was clearly a joke, but for any viewers left in doubt over whether it would be appropriate for them to wear headphones to block out the sound of their seatbelt alarm, Ms Lloyd said, ‘you need to wear your seatbelt’.
- Overall, the segment conveyed a positive road safety message.
 The law and order standard (Standard 5) states that broadcasters should observe standards consistent with the maintenance of law and order. The intent behind the standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.
 The context of the programme and the wider context of the broadcast are important considerations when assessing complaints under this standard.1 The standard does not prevent broadcasters from discussing or depicting criminal behaviour or other law-breaking, and context is crucial in assessing the programme’s likely practical effect.2
 In making a decision on a complaint that a broadcast has breached broadcasting standards, we first look at the right to freedom of expression. We weigh the value of the broadcast, and the value of the expression, against the level of actual or potential harm that might be caused, whether to an individual or to audiences generally.
 We all agreed that road safety is an important issue in New Zealand and its impact on our communities should not be trivialised. This segment as a whole carried a positive road safety message, with the presenters sharing their surprise that wearing headphones while driving was not illegal in New Zealand (though distracted drivers could still be charged with careless driving).
 We consider that the harm alleged by the complainant in this case was mitigated by the wider context of the broadcast. Mr Hurley is a well-known New Zealand comedian and his comment was clearly intended to be humorous. The reactions of the other presenters balanced his comment and signalled to viewers that wearing your seatbelt was important.
 Humour is an important aspect of the right to freedom of expression, provided it does not cause undue harm. We were satisfied in this case that viewers would have understood Mr Hurley’s comment to be a brief, comic aside, which was rebutted by his co-presenters, rather than a serious or literal explanation of his use of headphones, or encouragement to viewers not to wear their seatbelts.
[12 ] For these reasons we do not uphold the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
18 December 2018
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 John Clapham’s formal complaint – 30 August 2018
2 MediaWorks’ response to the complaint – 27 September 2018
3 Mr Clapham’s referral to the Authority – 5 October 2018
4 MediaWorks’ further comments – 1 November 2018
5 Mr Clapham’s final comments – 1 November 2018
1 Guideline 5b
2 Commentary – Law and Order, Broadcasting Standards in New Zealand Codebook, page 15