BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Chair Mr I W Gallaway declared a conflict of interest and did not take part in the Authority's consideration or determination of this complaint.

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Summary

The broadcast of the ear-biting incident which occurred on 23 July during the third test

between the All Blacks and the South Africa rugby team was replayed on a number of

occasions during the following days.

Mr Morgan complained to Television New Zealand Ltd, the broadcaster of the test

match and the replays, that the incident was shown out of context. By not showing

during the replays Sean Fitzpatrick's illegal behaviour which provoked Johan Le Roux,

he argued that the broadcast breached a number of broadcasting standards.

Explaining that the NZRFU Judicial Committee watched a replay of the entire incident

before making its decision to suspend Le Roux, TVNZ maintained that the broadcasts

correctly reflected the behaviour which was found to be at fault. Dissatisfied with

TVNZ's decision, Mr Morgan referred his complaint to the Broadcasting Standards

Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upheld some aspects of the complaint.

Decision

The members of the Authority have viewed the programme complained about and

have read the correspondence (summarised in the Appendix). As is its practice, the

Authority has determined the complaint without a formal hearing.

Because his son is legal counsel for Johan Le Roux, Authority Chairperson Mr I W

Gallaway has not taken part in the Authority's consideration or determination of this

complaint.

During the third rugby test between the South African team and the All Blacks, the ear

of All Black player Sean Fitzpatrick was bitten by South African player Johan Le

Roux. As a consequence of that action, Le Roux was suspended by the NZRFU

Judicial Committee and, further, was sent home by the management of the South

African rugby team.

Mr Morgan (a former provincial referee) complained to TVNZ that the replay of the

ear-biting incident broadcast on a number of occasions during subsequent days

breached some broadcasting standards. The replay had been in breach, he added, as it

did not show the whole incident. The entire incident, he added, included the "extreme

provocation" by Fitzpatrick on Le Roux when taking him out of play. Fitzpatrick's

action, he maintained, was "most illegal" and could be classed as "foul play". TVNZ's

broadcast of the replay was one-sided as:

If to be fair to Le Roux you had played the charge by Fitzpatrick in slow

motion the same as you did the ear biting, the public condemnation of Le Roux

may have been a lot fairer had they seen the mitigating circumstances.

TVNZ assessed the complaint under the nominated standards. The first five require

broadcasters:

G1  To be truthful and accurate on points of fact.

G4 To deal justly and fairly with any person taking part or referred to in any

programme.

G6  To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature.

G7  To avoid the use of any deceptive programme practice which takes

advantage of the confidence viewers have in the integrity of broadcasting.

G10 To ensure there is no collusion in contests between broadcasters and

contestants which results in the favouring of any contestant over others.

The other three provide:

G16 News must be presented accurately, objectively and impartially.

G19 Care must be taken in the editing of programme material to ensure that the

extracts used are a true reflection and not a distortion of the original event

or the overall views expressed.

G21 Significant errors of fact should be corrected at the earliest opportunity.

Interpreting the complaint as expressing a concern that the Judicial Committee might

have imposed a penalty other than the one that it did had it seen the full tape, TVNZ

stated that the Committee reached its decision after watching a replay of the entire

incident. The South African team management had acted also after watching a full

replay and, TVNZ emphasised, neither body had mentioned Fitzpatrick's

provocation. The earbiting incident, in TVNZ's view, was the central offence.

TVNZ then assessed the complaint against each of the standards nominated and on the

basis that the replays which were broadcast accurately reflected what had occurred on

the field of play, declined to uphold the complaint.

When Mr Morgan referred the complaint to the Authority, he stated that TVNZ had

dealt with his concern as if it was a complaint against the Judicial Committee's

decision. That was not the case he said as he had complained about the replays of the

incident until the Judicial Committee's decision. During those replays, he continued -

which did not show the whole incident – Le Roux was treated unfairly as the sole

perpetrator of any illegal action. Mr Morgan maintained that the replays of the

earbiting incident were unlike the replays of the other incidents which had occurred

during the tour when the behaviour which had preceded the newsworthy event was

also screened.

In its report to the Authority, TVNZ said that the ear-biting incident was the action

on which the penalty had been imposed by those who had seen the whole event and it

was the event which had been shown during the broadcasts of the replay.

In his final comment to the Authority, Mr Morgan said that viewers who watched the

replay before the Judicial Committee decision would have gained an unbalanced view

of the whole incident. He enclosed a letter he had requested from a former All Black

(Mr Andy Haden) who expressed the opinion that the Judicial Committee would have

been affected by public opinion and that the public would have been influenced by

what had been screened on television. In its response, TVNZ said that the Judicial

Committee had before it a tape of the entire game and:

... we remind the Authority that, while replays did concentrate on the incident

itself, TVNZ did play the match live and in its entirety.

The Authority did not feel that it was necessary to decide whether Sean Fitzpatrick's

provocative action was illegal or could be classed as foul play as Mr Morgan alleged.

Having watched a tape of the actions leading up to the incident, it accepted that

Fitzpatrick, when charging into the ruck, pushed Le Roux back some distance. In

apparent retaliation, Le Roux bit Fitzpatrick's ear. The Authority did not feel it

necessary to comment on the appropriateness of the penalties imposed on him by the

Judicial Committee and team management. The extent of the influence or impact of

public opinion on the Judicial Committee was another matter which the Authority

decided was irrelevant to its deliberations.

The Authority did not accept that all the standards nominated by Mr Morgan were

relevant to the complaint. Rather than deal with each standard separately, the

Authority decided that Mr Morgan's concerns were encapsulated in standards G4 and

G19. In other words, the Authority considered whether the broadcasts of the replay

of the ear-biting incident after the match and before the Judicial Committee decision

were just and fair to Le Roux and whether the editing was a true reflection of the

original event. It decided that all the matters raised by Mr Morgan under the other

standards could be subsumed under these standards.

Having decided what issue it should consider and under what standards, the Authority

was confronted with the question:

Were viewers shown enough of the incident to allow them to form an opinion

about the degree of Johan Le Roux's culpability for his actions?

Putting the issue in this way meant that the Authority's task was straightforward but

not necessarily easy. Ear-biting is clearly inexcusable behaviour during a rugby match.

However, it decided that viewers should have been shown sufficient material to allow

them to come to this decision on the basis of their examination of all the relevant

evidence. In other words, viewers should have been allowed to judge for themselves.

On the basis that the replay which was broadcast did not allow viewers to judge for

themselves the context in which the incident arose, the Authority decided that the

broadcasts of the replay breached the standards.

For the reasons given above, the Authority upholds the complaint that the

replay broadcast by Television New Zealand Ltd on a number of occasions of an

ear-biting incident which occurred during the rugby test on 23 July breached

standards G4 and G19 of the Television Code of Broadcasting Practice.

Having upheld a complaint, the Authority may make an order under s.13(1) of the

Broadcasting Act 1989. On the basis that the breach on this occasion was not of

sufficient importance to justify an order, the Authority has decided not to impose one.

Signed for and on behalf of the Authority

J R Morris
Acting Chairperson
1 December 1994

Appendix

Mr Morgan's Complaint to Television New Zealand Limited - 8 August 1994

Referring to his variety of experiences as a rugby administrator and referee, Mr Lewis

Morgan of Kihikihi complained to Television New Zealand Ltd about the way the ear-

biting incident during the third test between the All Blacks and South Africa was

shown.

Relating his complaint to standards G1, G4, G6, G7, G10, G16, G19 and G21 of the

Television Code of Broadcasting Practice, Mr Morgan said the replays of the incident

had breached the standards as it had been shown out of context. The replays, he

continued, had omitted Sean Fitzpatrick's "extreme provocation" when he had charged

Johan Le Roux. As Fitzpatrick's action could be classified as foul play - in addition to

being illegal - he argued that the public condemnation of Le Roux would have been

much fairer had it seen the mitigating circumstances.

TVNZ's Response to the Formal Complaint - 14 September 1994

When TVNZ advised Mr Morgan of its decision under the nominated standards, it

said the complaint implied that Johan Le Roux might not have been disciplined as he

was by the Judicial Committee had it seen more of the incident. TVNZ continued:

In fact, the Judicial Committee reached its decision after watching a replay of

the entire incident in the context of the match overall. It was in no doubt after

watching the full replay that Le Roux was sufficiently guilty to warrant his

suspension from rugby for a period of time.

Separately, the management of the South African team - also after having

watched a full replay - reached the decision that the incident was sufficiently

grave for Le Roux to be sent home immediately.

Neither group, it added, had made mention of Sean Fitzpatrick's provocation and,

TVNZ commented:

It is TVNZ's view that the content of the various replays simply reflected the

view of the Judicial Committee - which ruled that the ear-biting itself was the

central offence.

TVNZ then proceeded to consider the complaint under each of the nominated

standards and, on the basis that the replay was accurate, fair and balanced, the

complaint was not upheld.

Mr Morgan's Complaint to the Broadcasting Standards Authority - 20

September 1994

Emphasising that his complaint was principally concerned with the point that the

public's condemnation of Johan Le Roux was unfair as the mitigating circumstances

were not shown during the replays, Mr Morgan stated that TVNZ had not addressed

that point.

He then dealt with TVNZ's reply paragraph by paragraph and, noting that he was not

complaining about the Judicial Committee's decision, he questioned how the

broadcaster was able to reflect the Committee's ruling as it had not been in attendance.

Mr Morgan stated that he was not complaining about whether it was right or wrong to

criticise Johan Le Roux, but:

It was incumbent upon TV One to present the whole incident and let the

public make up their own minds on the sorry incident.

Unlike some other incidents during the tour replayed on television, he wrote, the

"cause" of Mr Le Roux's actions was not screened.

TVNZ's Response to the Authority - 29 September 1994

When asked by the Authority to comment on the referral, TVNZ said that Mr

Morgan seemed to suggest that Johan Le Roux would have been subject to less anger

had Sean Fitzpatrick's earlier actions been included in the replay. TVNZ replied:

Our response is simple. We replayed an incident which resulted in a player

being suspended and sent home.

It repeated that the Judicial Committee had viewed a recording of the entire incident

and had decided that the ear-biting incident was the crime for which Le Roux was

suspended. TVNZ concluded:

Our replays showed the ear-biting incident, and were therefore directly

relevant to the incident.

Mr Morgan's Final Comment - 10 October 1994

In his response, Mr Morgan wrote:

I reiterate that my complaint was the period up to the time of the first judicial

hearing. It was in this time span that TV One was guilty of showing a quite

unbalanced view of the whole incident, and by reason of this showing "the

highlighted bite" directed the public to that sorry incident - completely ignoring

Fitzpatrick's unsavoury and illegal play thereby creating a picture of Le Roux

as the villain of the piece, and not giving the public a chance to form an

unbiased opinion.

He also enclosed a letter he had received from Mr Andy Haden whose comment he

had sought. Mr Haden expressed the view that the NZRFU Judicial Committee was

"considerably affected" by public opinion and that public opinion was greatly

influenced by what was screened on television.

Mr Haden expressed the following opinion:

Johan Le Roux's public trial by television was unfair on that player because it

didn't portray the whole story.

Opinion was quickly provoked by repeated television replays of the bite until

a general feeling of outrage preceded Le Roux into his hearing.

The chance of a Ôfair' hearing was minimal.

TVNZ's Response - 28 October 1994

In response to Mr Morgan's letter and the accompanying letter from Mr Haden,

TVNZ repeated that the Judicial Committee had before it a tape of the entire game and

commented:

We also feel we should remind the Authority that, while replays did

concentrate on the incident itself, TVNZ did play the match live and in its

entirety.

Mr Haden, we suggest, misses the mark when he talked about "trial by

television". It was the Judicial Committee which passed sentence on Le Roux.