BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
7 Days – contestant told a story about punching a boy at school who had Down syndrome – allegedly in breach of good taste and decency and discrimination and denigration standards

Findings
Standard 1 (good taste and decency) – contextual factors – not upheld

Standard 7 (discrimination and denigration) – comments lacked necessary invective – attempt at humour – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An episode of the comedy programme 7 Days was broadcast on TV3 at 10pm on Friday 27 November 2009. The programme involved the host questioning two three-person teams of comedians about various events which had been reported in the media during the week.

[2]   During the programme, the panellists discussed an event that had occurred in America called “Kick a Ginger Day”. After the host made a joke about a boy with red hair being kicked, another comedian stated that perhaps the boy was not kicked because he had red hair, but because he was a “dick”.

[3]   Another one of the comedians, Dai Henwood, added:

Well that is my theory, ’cause I punched a Down syndrome guy when I was younger.

[4]   Mr Henwood stated that “there is nothing wrong with it” and said that, just like people who do not suffer from Down syndrome, there were a lot of “Down syndrome wankers out there”. He went on to say that the person he punched had always been mean to him, so he gave him “a bunch of fives”.

[5]   Mr Henwood said that the “guy” was a “really good sort of mate” of his, and explained that the incident had occurred after his friend had mocked him at a dance because he could not find a dance partner when all his other friends had.   

Complaint

[6]   Alastair Duff made a formal complaint to TVWorks Ltd, the broadcaster, alleging that Mr Henwood’s comments about people with Down syndrome breached broadcasting standards relating to good taste and decency and denigration. He considered that the comedian had exacerbated his initial remark by trying to justify it and argued that the comments were “totally unacceptable”.

Standards

[7]   Standards 1 and 7 and guidelines 1a and 7a of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Guideline 1a

Broadcasters will take into account current norms of good taste and decency bearing in mind the context in which any content occurs and the wider context of the broadcast e.g. programme classification, target audience, type of programme and use of warnings etc.

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

Guideline 7a

This standard is not intended to prevent the broadcast of material that is:

(i) factual, or

(ii) a genuine expression of serious comment, analysis or opinion, or

(iii) legitimate humour, drama or satire.

Broadcaster's Response to the Complainant

[8]   TVWorks contended that the comedian’s comments were made in the context of the 7 Days programme, which took a light-hearted look at the events of the week and poked fun at everything and everybody.

[9]   The broadcaster stated that Mr Henwood had made the comments when recounting an incident from his past which had involved a friend. It argued that, “far from being disrespectful and insensitive”, the comedian was in fact making the point that people with Down syndrome are essentially “the same” as the rest of the community. It contended that it was clear that the comments were intended to be humorous and argued that they could not be considered hate speech or vitriol.

[10]   TVWorks stated that it would share the complainant’s concerns with the programme’s executive producer, but maintained that Mr Henwood’s comments had not breached broadcasting standards. It declined to uphold the complaint.    

Referral to the Authority

[11]   Dissatisfied with the broadcaster’s response, Mr Duff referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He argued that the comedian was not recounting an event from his past and had “just come out with the statement that he had once punched a Down syndrome person”.

[12]   The complainant contended that the comedian had said that “some Down syndrome people were so annoying that they were just asking to be punched”. He considered that people with Down syndrome should not be the subject of jokes because they could not defend themselves.  

Authority's Determination

[13]   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 complaint without a formal hearing.

Standard 1 (good taste and decency)

[14]   When the Authority considers an alleged breach of good taste and decency, it takes into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• 7 Days was classified AO
• the programme was broadcast at 10pm
• the expectations of regular viewers.   

[15]   In the Authority’s view, 7 Days is an edgy comedy programme which, on occasion, uses shock value to try and entertain the audience. It considers that Mr Henwood’s comments were light-hearted, intended to be humorous and the type of material that regular viewers would have come to expect in the show.

[16]   The Authority notes that the other comedians attempted to pull Mr Henwood back once he began to tell his story and that it was clear his comments were met with general disapproval among the panellists.

[17]   While some viewers may have found Mr Henwood’s comments offensive, they could not be considered to have strayed beyond the bounds of good taste and decency when taken in the context of a late-night comedy programme.

[18]   Taking the above contextual factors into account, the Authority declines to uphold the complaint that the episode of 7 Days breached Standard 1.      

Standard 7 (discrimination and denigration)

[19]   Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community.

[20]   The term "denigration" has consistently been defined by the Authority as blackening the reputation of a class of people (see, for example, Mental Health Commission and CanWest RadioWorks¹). “Discrimination” has been consistently defined as encouraging the different treatment of the members of a particular group to their detriment (see for example Teoh and TVNZ²).

[21]   It is also well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard (see, for example, McCartain and Angus and The Radio Network³).

[22]   The Authority notes that the comments subject to complaint arose from a personal story in which Mr Henwood described an incident that had occurred among friends when he was younger. As stated in paragraphs [15] and [17] above, while some viewers may have found Mr Henwood’s comments offensive, they were said in a light-hearted manner and were a legitimate attempt at humour. Nothing in his comments could be said to have blackened the reputation of all people with Down Syndrome, or amounted to encouraging different treatment of that section of the community. If anything, the Authority considers that the story reflected more negatively on Mr Henwood.

[23]   In these circumstances, the Authority finds that the remarks lacked the necessary invective to reach the threshold for encouraging the denigration of, or discrimination against, people with Down syndrome. Accordingly, it declines to uphold the complaint that the programme breached Standard 7.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
23 March 2010

Appendix

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

1.           Alastair Duff’s formal complaint – 8 December 2009
2.          TVWorks’ response to the formal complaint – 14 December 2009
3.          Mr Duff’s referral to the Authority – 27 December 2009
4.          TVWorks’ response to the Authority – 18 January 2010

¹Decision No. 2006-030

²Decision No. 2008-091

³Decision No. 2002-152