Cox and 3 Others and Television New Zealand Ltd - 2006-012
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Eric Walker
- Gordon McPherson
- Noel Cox
- Rev Dr M A Flinn
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1)(a) of the Broadcasting Act 1989
Close Up – item about Muslim outrage caused by cartoons first published in Denmark depicting the prophet Mohammed – item concluded with satirical depiction of Jesus Christ – allegedly in breach of good taste and decency, unbalanced and unfair in that it encouraged the denigration of Christians
Standard 1 (good taste and decency) – context – not upheld
Standard 4 (balance) – contrast in attitudes to freedom of speech about religious convictions is controversial issue of public importance – dealt with in balanced way in full item – not upheld
Standard 6 (fairness) and guideline 6g (denigration) – lampooning of Christians did not amount to blackening of reputation – not upheld
Standard 7 (programme classification) – news and current affairs not subject to classification system – warning was broadcast – not upheld
Standard 9 (children’s interests) – warning included before current affairs item – not upheld
This headnote does not form part of the decision.
 The publication of cartoons which depicted the prophet Mohammed caused considerable outrage among Muslims. The cartoons were first published in Denmark and reprinted in a number of other countries. The reasons for the publication and the outrage were covered in an item on TV One’s Close Up broadcast at 7.00pm on 3 February 2006.
 The presenter introduced the item as one which dealt with freedom of speech. The item, which showed two of the Danish cartoons, included interviews with a Danish journalist, a representative of the Muslim community in New Zealand (Javed Khan), and New Zealand cartoonist Malcolm Evans. Towards the item’s conclusion, the presenter introduced a clip from the internet with the warning that it “could be seen as offensive if you have strong Christian beliefs”. The clip showed a Jesus Christ-like figure, dressed only in a loin cloth, prancing through the streets of a city singing the Gloria Gaynor song “I Will Survive”. The skit ended with “Jesus” being hit by a bus.
 Noel Cox complained to Television New Zealand Ltd, the broadcaster, about the depiction of Jesus Christ. Moreover, he noted, before the skit the presenter had acknowledged that the depiction was “arguably offensive to Christianity”.
 Mr Cox accepted that broadcasting the cartoons of the prophet Mohammed could be justified both in the interests of free speech and in view of the worldwide debate. However, broadcasting the clip of “Jesus” was “a gratuitous insult”. Christianity, he argued, had been the subject of a “mocking attack” and the broadcast breached the standard requiring good taste and decency. Moreover, he wrote, the broadcast gave weight to Islamic claims that the Western media was biased against them.
 The Rev Dr Flinn complained to TVNZ that the broadcast of the clip on a current affairs programme was derogatory and offensive.
 While acknowledging the warning given by the presenter, Dr Flinn argued that it was gratuitous to screen the item depicting Jesus after a discussion about the reaction of Muslims to cartoons depicting Mohammed. Further, the presenter’s smile at the end was unnecessary as it suggested she enjoyed the humour despite the earlier warning.
 Dr Flinn said the item was unbalanced because no attempt was made to include a Christian response to the clip about Jesus. It was also unfair, insulting to Christ and encouraged mockery and discrimination against Christians.
 Gordon McPherson acknowledged that the issues raised by the cartoons depicting the prophet Mohammed were “well-canvassed” in the item. However, he continued, the item concluded with an offensive clip that “characterised Jesus Christ in a most absurd fashion”. He contended that the clip had been screened without warning with the deliberate intention to offend Christians. He complained that the item was partial, and breached programme classifications in view of the time of screening. He also argued that the social friction dealt with in the item would have disturbed children.
 Eric Walker complained that the clip about Jesus was offensive and unrelated to the story about the impact of the cartoons. He asked whether the intent of what he described as a “deliberate blasphemous action” was to provoke violence similar to that which had followed the publication of the cartoons. He also expressed concern at the presenter’s “mirthful moment on air”.
 TVNZ assessed the complaints under the following standards in the Free-to-Air Television Code of Broadcasting Practice:
Standard 1 Good Taste and Decency
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.
1a Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme’s classification. The examples are not exhaustive.
1b Broadcasters should consider – and if appropriate require – the use of on-air visual and verbal warnings when programmes contain violent material, material of a sexual nature, coarse language or other content likely to disturb children or offend a significant number of adult viewers. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.
Standard 4 Balance
In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Standard 6 Fairness
In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.
6g Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:
i) factual, or
ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or
iii) in the legitimate context of a dramatic, humorous or satirical work.
Standard 7 Programme Classification
Broadcasters are responsible for ensuring that programmes are appropriately classified; adequately display programme classification information; and adhere to time-bands in accordance with Appendix 1.
Standard 9 Children’s Interests
During children’s normally accepted viewing times, broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.
Broadcaster's Response to the Complainants
 TVNZ argued that it was important to see the clip in the context in which it had been broadcast. Following an item which dealt with Muslim outrage at the cartoon depiction of Mohammed, TVNZ explained, viewers were told that a clip to be screened (depicting a Jesus-like character) was one of hundreds which had been circulating on the internet without causing an outcry. Noting that the presenter, before the broadcast, made a specific warning that the skit might cause offence, TVNZ wrote:
The skit was not presented as a provocation, but to make a point about the different approach to religion demonstrated in what are increasingly being described as the “two civilisations”.
 TVNZ then turned to the principle of freedom of expression “held dear” in Western democracies, which it said was a “hard-won human right”. Referring to a range of television programmes which had lampooned religion, TVNZ added:
Humour is a key component of freedom of expression. By being able to laugh at central tenets of western culture, we laugh at ourselves – recognising our weakness, extravagances and foibles. The laughter is not malicious; not tinged with hate or anger. It reflects rather a comfortable and affectionate recognition that religion is a central part of the social environment, and influences us all – believers and non-believers alike.
 As for the standards, TVNZ maintained that the good taste requirement had not been breached. The clip had been shown for comparative purposes, and the presenter’s obvious enjoyment emphasised the culture of tolerance. The denigration provision in guideline 6g had not been breached, TVNZ stated, as the item was satirical and made fun of a religious stereotype without malice.
 TVNZ contended that because of the aim of the item Standard 4 (balance) was not relevant. Standard 7 (programme classification) was also not relevant because news and current affairs were not classified. It did not accept that screening a clip of a “Jesus” figure singing the Gloria Gaynor song “I Will Survive” was contrary to the interests of child viewers (Standard 9) and declined to uphold the complaints.
Referrals to the Authority
 Dissatisfied with TVNZ’s decision, each complainant referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
 Repeating his complaint that the broadcast of the clip was a “gratuitous insult” to Christians, Mr Cox pointed out that TVNZ had not broadcast all the cartoons which had depicted Mohammed. Moreover, he said, as Islam recognised Jesus Christ as one of the five major prophets, the clip was offensive to Muslims as well as Christians.
 Mr Cox then dealt at length with the approach set out in the Koran to the depiction of the prophet Mohammed, and maintained that the issue was not simply one of a clash between religions or cultures. He summarised his views:
No longer predominantly Christian, the West has adopted a secular ideology of freedom which now seems to assert that nothing is sacrosanct, nothing immune from attack. It is little wonder that many in Islamic societies see the West as decadent and corrupt. To the Islamic commentators who ask whether we would accept the offensive depictions of Christ we would answer yes, as we have done so in the not so distant past. But that is not to say that we have been right to do so. Freedom of speech may have gone too far when we can stand back and attempt to justify offensive depictions of the Prophet Muhammad, or condone offensive depictions of religious figures of our own majority culture.
 Mr Cox argued that the media had to exercise judgment which took into account both good taste and the freedom of the press. The gratuitous insult screened on this occasion, he wrote, was offensive.
 Dr Flinn considered that it had been inappropriate to broadcast the item during a current affairs programme, rather than during a satirical show. The number of depictions on the internet, he added, was irrelevant and a verbal description in the broadcast would have sufficed.
 Dr Flinn contended that TVNZ’s argument that freedom of speech defined Western democracies was irrelevant. The issue, he insisted, concerned what was appropriate and decent in the particular context.
 In response to TVNZ’s argument that Standard 4 (balance) was irrelevant, Dr Flinn disagreed, stating that the item did not include any Christian response to the clip.
 Dr Flinn maintained that it had not been necessary to show the item to illustrate the point that Christianity was the object of satire. Moreover, he added, the broadcast of such material encouraged the denigration of Christians and Christian beliefs.
 Mr McPherson said that his complaint was not about the acceptability of lampooning religion which had been the approach taken by TVNZ in its response to him. Rather, he contended, it was offensive to broadcast the clip during a current affairs item following a balanced discussion about the Muslim cartoon controversy. Noting that he enjoyed a laugh about many things, including the Christian faith, Mr McPherson wrote:
In these circumstances, the item was bound to offend, and the broadcaster must have been well aware of this before its deliberate insertion. Furthermore, to caricature Jesus in such a way and then to defend the skit by saying the music used was simply a well-known Gloria Gaynor song is ludicrous.
 Mr Walker did not accept that it was appropriate to broadcast the skit just because it was “freely available on the Internet”. A considerable amount of “garbage” was on the internet and he described TVNZ’s seeming acceptance that the internet defined good taste and decency as “infantile”. He added:
Free speech once meant that the truth could not be silenced, now it means that any madman can say anything as of right.
 Arguing that news programmes should be free of personal bias as displayed by the presenter on this occasion, Mr Walker contended that the broadcast of a blasphemous item showed that TVNZ did not have an understanding of the historical basis of Christianity. He asked TVNZ to avoid “smut” and “capture the moral high ground”.
Broadcaster’s Response to the Authority
 In response to the referral from Mr Cox, TVNZ repeated the point that the broadcast of the clip illustrated the difference between the outcry and violence in the Islamic world provoked by the Danish cartoons, and the widespread tolerance to such material in cultures of which Christianity was a major cornerstone.
 With reference to Dr Flinn’s argument that it was inappropriate to show the clip on a current affairs programme, TVNZ contended that current affairs covered “the whole spectrum of human existence”. It maintained that the item made the valid contrast between the reaction to the Danish cartoons, and the widespread tolerance shown to skits featuring Jesus in a predominantly Christian culture. TVNZ enclosed a short article by Ronald Dworkin from the “New York Review of Books” which dealt with the issues of religious convictions and free speech.
 To Mr McPherson, TVNZ said that the item was not gratuitous and that it reminded viewers that a culture based on Christianity was seemingly more tolerant than some others. It had been preceded by a warning, TVNZ continued, was obviously satirical, and the Jesus-like figure was clearly a caricature of a stereotype.
 To Mr Walker, TVNZ said that blasphemy required an intent to hurt members of a religious faith. That, it added, was not present on this occasion and the presenter’s smile did not indicate a personal bias, but that, together, we can “enjoy jokes which poke fun at aspects of our cultural heritage without those jokes being regarded as a serious attack on faith and religion”.
Complainants’ Final Comments
 Noting that there had long been a common law principle in favour of freedom of expression, which was made explicit in the Bill of Rights, Mr Cox pointed out that the right was subject to legal and moral limitations.
 Dr Flinn argued that TVNZ had missed the point of his complaint. He accepted that current affairs covered the spectrum of human existence, but that did not entitle a broadcaster to broadcast material which breached the requirement for good taste and decency. The Dworkin article, he noted, accepted that despite the overriding importance of freedom of speech, broadcasters should display restraint when deciding whether to broadcast material which would cause genuine pain to a significant number of people. Pointing to the importance of Jesus Christ in Christian theology, he said it was difficult to imagine anything more derogatory and insulting than portraying him as a pop singer and stripper who, while making claims that he would survive, was “summarily run over by a bus”.
 Dr Flinn wrote:
- I fully accept that not all share these beliefs held by Christians. But to show material so overtly and profoundly insulting and offensive to Christians under the principle of the freedom of expression in western societies seems to me to fly in the face of the requirement for “decency and taste” in broadcasting.
 Mr McPherson maintained that the skit was both offensive and gratuitous, and that it was not satirical. He did not accept it made a point about cultural tolerance.
 Describing blasphemy as hate speech against God, Mr Walker maintained that TVNZ had committed blasphemy, whether it had intended to or not. The presenter, he added, had “chortled” and had shown personal bias.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaints without a formal hearing.
Standard 1 (good taste and decency)
 All of the complainants contended that the broadcast of the clip breached this standard. When determining good taste and decency complaints, the Authority is required under guideline 1a to take the context of the broadcast into account.
 Leaving aside the portrayal of Jesus, the Authority considers that there was nothing in the item which threatened the Standard 1 requirement for good taste and decency. Although news and current affairs programmes are not subject to classification, the item was broadcast at a time when programmes classified as PGR are allowed. As a current affairs item, adults were the target audience. Further, the actions of the Jesus-like figure were not sexually suggestive or otherwise offensive.
 Moreover, in view of the message contained in the full item, the Authority accepts that it was a legitimate editorial decision to screen the clip. It was used to make the point that Western societies are more tolerant of material which makes fun of religions and religious figures, in contrast to Islamic societies.
 Guideline 1b is also applicable to the Authority’s decision on this occasion. It encourages the use of warnings if material is likely to offend a significant number of adult viewers. The Authority notes that TVNZ broadcast a specific warning before it screened the clip.
 In the Authority’s view the complainants’ fundamental concern appears to be that this programme breached standards of good taste and decency because it was deeply offensive to Christians to see Jesus portrayed in such an irreverent manner. In essence, the complainants are asking the Authority to find that the clip’s lampooning of Jesus was so offensive that it must, as a matter of public interest, have breached standards of good taste and decency. The presenter’s warning, the complainants contended, reinforced the acknowledged offensiveness of the item to Christians.
 The Authority accepts that the complainants were deeply offended by the clip. Nevertheless, the right to satirise religious figures falls squarely within a broadcaster’s freedom of expression. While there may be situations where satire does offend good taste and decency – for example, where the programme is particularly vicious or vitriolic – the Authority considers that the clip complained about does not fall into that category. Rather, the clip was intended to be absurd.
 Accordingly, the Authority does not uphold the good taste and decency complaint.
 The complainants also argued that the presenter’s apparent humorous reaction to the clip added to the offensive nature of the broadcast. Having viewed the item, the Authority considers that the presenter’s spontaneous reaction, while an added irritant to some complainants, did not convey anything other than surprised amusement. The Authority does not accept that this was in breach of good taste and decency.
Standard 4 (balance)
 Dr Flinn argued that the item was unbalanced as the clip, in contrast to the Danish cartoons, was not accompanied by comments as to why Christians would find it distasteful.
 The Authority considers that the item covered two main issues. The first was whether there should be limitations on the right to free speech, in particular, the right to satire, ridicule, or make fun of religious icons and practices, and where those limitations should be drawn. Secondly, it contrasted the different attitudes and approaches between Islamic and Western societies to that question. The Authority accepts that these are controversial issues of public importance.
 When determining a complaint that an item is unbalanced, the Authority considers the full item; it does not assess balance in respect of individual segments. As noted above, the aim of the total item was to contrast approaches to freedom of speech in Muslim and Western societies. In view of the broadcaster’s overall aim and the total content of the item, the Authority considers that the balance standard was not contravened.
Standard 6 (fairness) and guideline 6g (denigration)
 The complainants contended that the item encouraged discrimination against Christians. The Authority disagrees.
 The term “denigration” has consistently been defined by the Authority as meaning a blackening of the reputation of a class of people (see for example Decision Nos 1994-062 and 2004-129). It is also well established that in light of the requirements of the New Zealand Bill of Rights Act 1990, a high threshold is required before the Authority will find that a broadcast encourages denigration to such an extent that it amounts to a breach of the standard (see for example Decision No 2004-001).
 In the present case, the clip was used to illustrate the point that in Western society, the satirising of religion is allowed and tolerated. In the view of the Authority, the clip did not attack Christians or Christianity in a manner that encouraged denigration. While the depiction of Jesus as unattractive and theatrical was understandably offensive to many Christians, it could not be said to encourage denigration or discrimination in the sense envisaged by guideline 6g. As the Authority has stated in the past, the clip would have to blacken the reputations of Christians to breach the standard.
 The Authority observes that satirical treatment of society’s institutions – whether they be religious, political or cultural – is simply part of living in a Western democracy which values freedom of expression. Satire is not prima facie inappropriate simply because its subject is religion or religious figures.
 For the above reasons, the Authority declines to uphold the denigration complaint.
Standards 7 and 9 (programme classification and children’s interests)
 Under the Free-to-Air Television Code, news and current affairs programmes are exempt from the strictures of the classification system. The item complained about falls into the category of current affairs.
 Furthermore, the Code encourages the use of warnings for unclassified programmes during early evening hours when young people may be among the viewers. As noted, the broadcast on this occasion was preceded with a warning. Taking these matters into account, the Authority finds that neither the programme classification nor the children’s interests standards were breached.
For the above reasons the Authority declines to uphold the complaints.
Signed for and on behalf of the Authority
18 May 2006
(a) The following correspondence was received and considered by the Authority when it determined this complaint from Mr Cox:
- Noel Cox’s formal complaint – 9 February 2006
- TVNZ’s decision on the formal complaint – 27 February 2006
- Mr Cox’s referral to the Authority – 4 March 2006
- TVNZ’s response to the Authority – 14 March 2006
- Mr Cox’s final comment – 23 March 2006
(b) The following correspondence was received and considered by the Authority when it determined this complaint from Rev Dr Flinn:
- The Rev Dr M A Flinn’s formal complaint – 7 February 2006
- TVNZ’s decision on the formal complaint – 27 February 2006
- Dr Flinn’s referral to the Authority – 14 March 2006
- TVNZ’s response to the Authority – 27 March 2006
- Dr Flinn’s final comment – 4 April 2006
(c) The following correspondence was received and considered by the Authority when it determined this complaint from Mr McPherson:
- Gordon McPherson’s formal complaint – 17 February 2006
- TVNZ’s decision on the formal complaint – 1 March 2006
- Mr McPherson’s referral to the Authority – 16 March 2006
- TVNZ’s response to the Authority – 27 March 2006
- Mr McPherson’s final comment – 11 April 2006
(d) The following correspondence was received and considered by the Authority when it determined this complaint from Mr Walker:
- Eric Walker’s formal complaint – 24 February 2006
- TVNZ’s decision on the formal complaint – 1 March 2006
- Mr Walker’s referral to the Authority – 10 March 2006
- TVNZ’s response to the Authority – 27 March 2006
- Mr Walker’s final comment – 31 March 2006