Du Fall and The Radio Network Ltd - 2014-055
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Chris Du Fall
BroadcasterThe Radio Network Ltd # 2
Summary [This summary does not form part of the decision.]
On Newstalk ZB on 2 April 2014, in response to a news item reporting that the average New Zealand woman weighed 72 kilograms, the host Rachel Smalley could be heard, during an advertisement break, referring to these women as ‘heifers’ and ‘a bunch of lardos’. The Authority did not uphold the complaint that the action taken by the broadcaster was insufficient, or that the comments breached standards of good taste and decency. Size or weight is not one of the specified sections of the community under the discrimination and denigration standard, the comments were off the cuff and not intended for broadcast, and the host and the broadcaster both issued public apologies.
Not Upheld: Good Taste and Decency, Discrimination and Denigration (Action Taken)
 Following a news item on KPMG Early Edition reporting on research showing that an emergency contraceptive pill is less effective for women weighing more than 70 kilograms, one of the presenters made adverse comments about the weight of New Zealand women when she thought her microphone was switched off. In response to the statement that the average New Zealand woman weighed 72 kilograms, the host Rachel Smalley could be heard, during an advertisement break, referring to these women as ‘heifers’ and ‘a bunch of lardos’. The comments were broadcast on Newstalk ZB on 2 April 2014.
 Chris Du Fall made a formal complaint to The Radio Network Ltd (TRN), alleging that Ms Smalley’s comments were deeply offensive and totally unacceptable. TRN upheld the complaint under the discrimination and denigration standard. It did not uphold her complaint that the good taste and decency standard was breached.
 The issues therefore are whether the host’s comments breached the good taste and decency standard as set out in the Radio Code of Broadcasting Practice, and whether the action taken by the broadcaster having upheld the discrimination and denigration complaint was sufficient.
 The members of the Authority have listened to a recording of the broadcast complained about, as well as the host’s apology the next day, and have read the correspondence listed in the Appendix.
Did the broadcast threaten current norms of good taste and decency?
 The good taste and decency standard (Standard 1) is primarily aimed at broadcasts containing sexual material, nudity, coarse language or violence.1The 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.2
 In every complaint we consider, our attention is properly drawn to the broadcaster’s right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. There is a high threshold for a breach of the good taste and decency standard, in light of the importance attached to this right.
 When we consider a complaint under Standard 1, context is all important. The contextual factors here include:
- the comments were broadcast at 5.55am when children were unlikely to be listening
- Newstalk ZB’s target audience of 40- to 64-year-olds
- audience expectations
- the comments were not a calculated attack; they were broadcast accidentally and were not intended to go to air
- a lengthy apology was promptly broadcast by the host the next day
- the broadcaster also issued a public apology.
 We understand that some listeners found the comments objectionable. Nevertheless, in all the circumstances, we do not think the comments were so objectionable, or threatened current norms of good taste and decency to such a level, as to justify us limiting the broadcaster’s, and the host’s, right to freedom of expression. This was not a calculated or deliberate attack; these comments were off the cuff and never intended to go to air. Both the host and the broadcaster promptly apologised, and we think it likely that the resulting embarrassment of the host and the station and any negative reaction from the public were sufficient to prevent a repeat in future.
 Accordingly, we decline to uphold the Standard 1 complaint.
Did the broadcaster take sufficient action, having upheld the complaint under Standard 7?
 This matter has been referred to the Authority as a complaint about the action taken by the broadcaster, having upheld the complaint. The decision of the broadcaster to uphold the complaint is not before us, except to the extent that we have been influenced in our conclusion on the action taken, by our views of the gravity of the breach as determined by TRN.
 The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, a section of the community. The standard specifies sections of the community ‘on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture of political belief’.
 Body size is not one of the group characteristics covered by the standard. Nor are overweight people one of the specified sections of the community. The sections of the community specified in the standard are consistent with the grounds for discrimination listed in the Human Rights Act 1993, which similarly does not include body size or weight. We do not agree with the broadcaster’s finding that ‘the intent of this standard is to protect people from such denigration also’.
 Accordingly, had it been up to us, we would not have upheld Ms Du Fall’s complaint under Standard 7. Specifically, the standard is not applicable to Ms Smalley’s comments. Even if the standard did apply, as we have noted above, Ms Smalley thought she was off air. Her comment was clearly off the cuff; it was light-hearted and did not carry the high level of invective necessary to encourage the denigration of, or discrimination against women based on their weight. It follows that this Authority would not have found any action necessary.
 Of course, the broadcaster is free to impose its own internal standards, and any remedies or sanctions as it sees fit if it considers those standards have not been maintained. TRN has apologised to the complainant for the offence caused. The host issued a lengthy apology on air the day after she made the comments, and we think she was sincere in that apology. The broadcaster also issued a public apology. We have no doubt that the host was extremely embarrassed by this incident and that it will have had a significant impact on her future behaviour on air.
 In these circumstances, we decline to uphold this part of the complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
9 September 2014
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Chris Du Fall’s formal complaint – 16 April 2014
2 TRN’s response to the complaint – 28 April 2014
3 Ms Du Fall’s referral to the Authority – 21 May 2014
4 TRN’s response to the Authority – 22 May 2014
1Turner and Television New Zealand Ltd, Decision No. 2008-112
2Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November 2006)