BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

Summary  

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

In an episode of The Sean Plunket Working Group, one of the presenters commented ‘fuck this is good radio’ before the commercial break. A complaint that this breached the good taste and decency standard was upheld by the broadcaster in the first instance. The Authority¹ did not uphold a complaint that the action taken by the broadcaster was insufficient to remedy the breach, considering the word was not intended to be aired, and the broadcaster upheld the complaint in the first instance, apologising for the mistake. The Authority did not uphold a complaint that the references to camps in the broadcast breached the standard as they were made in connection with quarantine management, and did not carry the ‘prison camp’ connotations suggested by the complainant.

Not upheld: Good taste and decency (including action taken)

The broadcast

[1]  During Magic Talk’s The Sean Plunket Working Group on 12 June 2020, Sean Plunket, Damien Grant and Martyn Bradbury discussed issues of racism and the removal of historic statues, COVID-19 border restrictions and the country’s move to alert level 1. Immediately before a commercial break, at around 2.15pm, the following took place:

[Host 1] I just want to end this particular segment with another quote from Mr Peters. He offered some advice for those clamouring to project their ignorance through tearing down historic statues. He said, deal with it, grow up, read a book. Let's continue the discussion after the break. It's eighteen after two.

[Host 2] Fuck this is good radio.

[2]  After the commercial break this conversation followed:

[Host 1] Twenty two after two. One of you clearly spilt hot tea on themselves just before the last break.

[Host 2] Damien, Damien did.

[Host 1] Damien, Damien, if you be careful with your cup of tea my friend, I’m sure that was the cause of it. Unbelievable.

[3]  From around 2.35pm, the conversation turned to COVID-19 border management:

[Host 1] …if the government isn't prepared to invest into those areas, then those businesses aren't going to be because there wasn't going to be a new normal until a bloody vaccine is available.

[Host 2] What do we do, do we build some camps? Do we that we put people into?

[Host 1] That's what I think. That's it.

[Host 3] Look, I'm always in favour of building camps.

[Host 1] But I think that that's the kind of infrastructure that they've got to seriously be looking at and placing a premium on that because people are going to want to holiday in plague free zones.

[Host 2] Bomber, surely it will be better Bomber, to leave the private sector to build plague hotels or quarantine hotels.

[Host 1] And I think that they should be able to do that maybe with some help from the Government, but the private sector. Right. Sean. The private sector has got to adapt to that. But I think, I think you're absolutely right. There is no appetite to just open the bloody borders and get this thing back in the country again because no one wants to go back into lockdown.

The complaint

[4]  Mr Cohen complained the good taste and decency standard was breached due to:

• use of the word ‘fuck’ on air
• one of the host’s call for ‘prison camps to help solve NZ’s current problems’.

[5]  Mr Cohen’s concern regarding the ‘camps’ reference related to parallels with Nazi Germany and the suggestion such camps might be called for here.

[6]  His original complaint raised other standards but the broadcaster only upheld his complaint under the good taste and decency standard with regard to the use of ‘fuck’.

[7]  Mr Cohen referred his complaint to us under the good taste and decency standard on the basis:

• The action taken by the broadcaster on upholding his complaint about use of ‘fuck’ was insufficient. Referring to a previous complaint he had made on the same issue, he said: ‘is it acceptable for [the presenters] to keep using the word “fk” on air and then simply [apologise] for it?’
• He disagreed with the broadcaster’s finding that the comment about prison camps did not breach the standard as it has parallels with ‘Nazi Germany and Bolshevik Russia…as they all started calling for prison camps and rounding up segments of the population’.

The broadcaster’s response

[8]  MediaWorks argued sufficient action was taken in response to the language:

• ‘ Upon review of the broadcast the one instance of ‘fuck’ we located on-air that day occurred at the end as the programme was going to a commercial break – the hosts thought they were off-air at around 2:20pm…this comment was not intended to be broadcast and it was a genuine mistake that it got to air.’
• ‘Returning from the commercial break at around 2:23pm, the host Sean Plunket acknowledged the coarse language at the end of the last segment, commenting that it must have been because the host had spilt hot tea on himself. Mr Plunket advised his co-host that he ‘needed to be more careful’.
• The broadcaster added this was the only complaint it received about the particular instance, the programme was intended for an adult audience and they would have understood the comment was not intended to be broadcast.

[9]  MediaWorks did not uphold the other aspects of the complaint for the following reasons:

• The discussion was clearly about creating an appropriate infrastructure to create effective quarantining of visitors to New Zealand.
• While the comment was that we ‘build some camps’ the hosts did not use the term ‘prison camps’.

The standard

[10]  The good taste and decency standard requires broadcasters to maintain current norms of good taste and decency consistent with the context of the programme, and the wider context of the broadcast. The standard is intended to protect audiences from broadcasts likely to cause widespread undue offence or distress, or undermine widely shared community standards.²

Our decision

[11]  The right to freedom of expression is an important right in a democracy. It is important we weigh the right to freedom of expression against the harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.

Good taste and decency (action taken)

[12]  The word in question is ranked 13th out of 31 words tested for unacceptability across all broadcasting scenarios in the Language That May Offend in Broadcasting³ research. It is ranked 9th for unacceptability when used in the context of a radio talkshow by a host.⁴

[13]  We have also considered the following contextual factors:⁵

• The Sean Plunket Working Group is a Friday panel discussion segment of the talkshow Magic Afternoons with Sean Plunket. It discusses news and current affairs.
• Mr Plunket is known for offering strong and sometimes controversial opinions for the purpose of generating discussions and debate.⁶ The regular guests on the Friday working group, Martyn Bradbury⁷ and Damien Grant,⁸ have similar profiles as outspoken and opinionated personalities.
• The programme has an adult target audience. It is branded as ‘no-holds barred common sense talk’.⁹   
• The word in question was not intended to be used on air, but was uttered after the host closed the segment immediately before going into a commercial break (see paragraph [1]).
• The segment was broadcast between 2pm to 3pm, during the M classification timeband.¹⁰

[14]  While given its unacceptability, the use of the word may be outside audience expectations and may still cause offence, the word was aired inadvertently. The hosts, having realised it had been aired, acknowledged it when returning from the commercial break in the manner highlighted in paragraph [2] above.¹¹ However, we do not consider this to be a clear apology. A reasonable listener is unlikely to have understood this to be an acknowledgment or an apology for the use of the word. On that basis, we agree the broadcast breached the good taste and decency standard.

[15]  In considering the severity of the conduct, the extent of the potential harm and whether the action taken by the broadcaster appropriately remedied the alleged harm,¹² we are satisfied the action taken by the broadcaster was sufficient:

• The utterance was not intended to be said on air. The host had clearly announced the commercial break.
• Despite the ambiguity of their comments regarding spilt tea, the hosts appeared to realise the word should not have been used on air.
• The broadcaster upheld the complaint and apologised to the complainant.

[16]  Accordingly, we do not uphold Mr Cohen’s complaint that the action taken by the broadcaster after finding a breach of this aspect of the complaint, was insufficient.

Good taste and decency – reference to ‘camps’

[17]  The broadcast discusses ‘camps’ but not ‘prison camps’ (see paragraph [3]). There is a reference made by the hosts earlier in the segment (in relation to our closed borders during level 4 lockdown) that New Zealand was an ‘open air prison of 5 million’. However, this does not carry the connotations suggested by the complainant.

[18]  The contextual factors outlined in paragraph [13] are relevant to this aspect of Mr Cohen’s complaint. The following factors are also relevant:

• Mr Plunket began this particular segment with the question of ‘whether or not any of the panel disagree with the early move to level one’ clearly indicating the conversation was about COVID-19 lockdown.
• The reference to building camps was part of a discussion about COVID-19 border management.
• There was no reference made to the rounding up of segments of the population.

[19]  For these reasons, there is also no basis to suggest the reference to camps carried the connotations suggested. This segment was accordingly unlikely to cause widespread undue distress or offence, or undermine widely shared community values.

[20]  We do not uphold this aspect of the complaint.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

9 December 2020

   
Appendix

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

1  James Cohen’s formal complaint – 13 June 2020

2  MediaWorks’ response to the complaint – 13 July 2020

3  Mr Cohen’s referral to the Authority – 27 July 2020

4  MediaWorks’ response to the referral – 29 July 2020

¹ Leigh Pearson declared a conflict of interest and did not participate in the determination of this complaint.
² Commentary: Good taste and decency, Broadcasting Standards in New Zealand Codebook, page 12
³ Broadcasting Standards Authority, “Language That May Offend in Broadcasting” (June 2018), page 6
⁴ As above at page 27
⁵ Guideline 1a
⁶ Marra and MediaWorks Radio Ltd, Decision No. 2019-023
⁷ The Daily Blog “About Martyn Bradbury” <www.thedailyblog.co.nz>
⁸ Emily Writes “Damien Grant’s freedom to be an asshole” The Spinoff (online ed, New Zealand, 8 June 2018)
⁹ Magic Talk “Magic Afternoons with Sean Plunket” <www.magic.co.nz>
¹⁰ Guideline 2a
¹¹ In Clarke and The Radio Network Ltd, Decision No. 2013-077, the Authority found that the action taken by the broadcaster was sufficient as the panellist immediately apologised on air for the slip-up. We also note in Du Fall and The Radio Network Ltd, Decision No. 2014-055, the Authority found that action taken by the broadcaster to remedy a breach of standard 1 was sufficient because the host made a lengthy apology on air the next day, and the broadcaster also issued a public apology for the comment.
¹² Horowhenua District Council and MediaWorks Radio Ltd, Decision No. 2018-105 at [19]