BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Robert & Jono’s Drive Show – host told personal anecdote about a man with Down Syndrome who fell off a swing and hurt himself – story intended to be humorous – host used the term “mental” to refer to people with intellectual disabilities – allegedly in breach of standards relating to good taste and decency, fairness and discrimination and denigration

Findings
Standard 1 (good taste and decency) – story was conveyed in a light-hearted manner – the term “mental” in reference to people with intellectual disabilities was used without malice or invective – co-host made mitigating comments – host also made comments that were positive towards people with intellectual disabilities – not upheld

Standard 7 (discrimination and denigration) – comments did not amount to hate speech or vitriol and the story was told without malice – did not encourage the denigration of, or discrimination against, people with intellectual disabilities including those with Down Syndrome – not upheld

Standard 6 (fairness) – man referred to was not “exploited” or “humiliated” (guideline 6e) – host did not make any comments that were negative towards him – man treated fairly – not upheld

This headnote does not form part of the decision. 

Introduction

[1]  During Robert & Jono’s Drive Show, broadcast on The Rock at 5.20pm on 26 January 2012, the host Jono told a personal anecdote about a man with Down Syndrome who fell off a swing and hurt himself. The punch line of the story, which was intended to be humorous, revolved around the man’s comment, “I’ll touch the sky”, before falling off the swing, hurting his face and stating, “I think my face hit the sky”. Jono used the term “mental” three times to refer to people with intellectual disabilities, and his co-host interrupted him twice to say that the correct terminology was “intellectually handicapped”. 

[2]  Lyn Fattorini made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that Jono’s comments, in particular his use of the term “mental” in reference to people with intellectual disabilities, was offensive. In addition, she considered that the comments were unfair to the man referred to in the item, and encouraged listeners to view the intellectually disabled community as “an object of humour”.

[3]  The issue is whether the item, and specifically the host’s comments, breached Standards 1 (good taste and decency), 6 (fairness), and 7 (discrimination and denigration) of the Radio Code of Broadcasting Practice.

[4]  The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the item, and specifically the host’s comments, breach standards relating to good taste and decency?

[5]  Standard 1 states that broadcasters should observe standards of good taste and decency. The standard is primarily concerned with the broadcast of sexual material, nudity, coarse language or violence.¹ The 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

[6]  When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast, which here includes:

• Robert and Jono’s Drive Show was broadcast on The Rock between 4pm and 7pm on a Thursday
• the comments subject to complaint were broadcast at 5.20pm
• the co-host’s comments
• the station’s target audience of males aged 25 to 44 years
• expectations of regular listeners.

[7]  Ms Fattorini argued that the segment overall was used for the purpose of amusement and to laugh at people with intellectual disabilities. In particular, she considered that the following comments were offensive and in bad taste:

•  “At the park... there was a group of mental people, who were just having their morning out.”
• “...their minders are there looking after them. And there are wide varieties of different mental people...”
•  “...the minders are running over and there’s a whole pack of mental people running over trying to save this guy...”

[8]  RadioWorks acknowledged that the complainant took offence at Jono’s comments and it apologised that she found the broadcast upsetting. However, it did not consider that the item, including Jono’s use of the term “mental”, in this context was likely to offend a significant number of regular listeners. The broadcaster asserted that “irreverence and a lack of ‘political correctness’” was central to The Rock’s brand and the reason the radio station appealed to many listeners. It stated that “those to who it does appeal are entitled to have their own radio station which reflects their values, language, attitudes and senses of humour”.

[9]  Here, the host was telling a personal story about his experience at the park with his young son, which involved a man with Down Syndrome. The story itself was his personal account of events that took place, expressed in a light-hearted and tongue-in-cheek manner – a style that is well-known to The Rock’s regular listeners. The story was told without malice or invective and was intended to entertain and humour the audience.

[10]  We acknowledge that the use of the term “mental” in reference to people with intellectual disabilities was insensitive and contrary to commonly accepted terminology in the disability sector and in contemporary society. However, the purpose of the good taste and decency standard is not to prohibit challenging material, or material that some people may find offensive, but to ensure that sufficient care is taken so that challenging material is played only in an appropriate context, and that the challenges are not so offensive that they are unacceptable regardless of context.

[11]  The term “mental” was used without malice or invective, and was not intended to be offensive or abusive. It was expressed in the form of blue humour, to provoke a response from the audience. The host also made comments that were positive towards people with intellectual disabilities, for example, he stated, “... did I mention before, Down Syndrome, beautiful people...”, and in relation to events after the man fell off the swing, he said, “And I go up to him [and say] ‘mate are you alright?’ and do you know [he responded with] the most genius line ever...”

[12]  In addition, the co-host, Robert, made comments that went some way to mitigating the potential offence caused by the use of the term “mental”. He interrupted Jono twice, stating, for example, “I think the [correct] term is ‘intellectually handicapped’”. The co-host’s comments highlighted the problems associated with the use of the term “mental”, and accentuated the difficulties of terminology and its acceptability in this field, which changes as society’s views evolve.

[13]  In our view, the manner in which the comments were conveyed, and the wider context of the broadcast, meant that the potential harm to the audience in allowing the speech, was not sufficient to outweigh the broadcaster’s and the host’s right to freedom of expression (New Zealand Bill of Rights Act 1990).

[14]  Accordingly, we decline to uphold the Standard 1 complaint.

Did the broadcast encourage the denigration of, or discrimination against, a section of the community?

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

[16]  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 RadioWorks³). “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 TVNZ⁴).

[17]  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 Network⁵).

[18]  Ms Fattorini argued that Jono’s comments encouraged listeners to view the intellectually disabled community as “an object of humour”. She stated that “those with intellectual disabilities, their carers and the disability sector in general, in their efforts for inclusion, encourage the general public to see the person first, not the disability”.

[19]  However, we agree with the broadcaster that while some listeners, in addition to the complainant, may have found the term “mental” offensive, the use of the term in this context did not amount to hate speech or vitriol, and was not intended as an attack against people with intellectual disabilities. As stated above, the comments were made in the context of a personal anecdote, the overall tone of which was favourable and positive towards the subject of the story. They were conveyed in a light-hearted manner with humorous intent, and were somewhat mitigated by the comments made by the co-host.

[20]  The right to free speech necessarily dictates the dissemination of information and views that may offend some people. We cannot be overly sensitive about comments directed at particular segments of society, even those that are considered vulnerable, in particular where there is an obvious lack of invective and where the comments are not intended to be taken seriously.

[21]  In these circumstances, we are satisfied that the comments did not encourage the denigration of, or discrimination against, people with intellectual disabilities including those with Down Syndrome, as a section of the community. We therefore decline to uphold the complaint under Standard 7.

Was the man referred to in the item treated unfairly?

[22]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[23]  One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.⁶

[24]  Ms Fattorini argued that Jono’s comments exploited the actions, subsequent injury and comments of a man with an intellectual disability, for the sake of humour, in breach of guideline 6e. In her view, the man was “used as laughing stock, because of his disability”. Guideline 6e states that individuals, and particularly children and young people, taking part or referred to should not be exploited, humiliated or unfairly identified.

[25]  RadioWorks stated that the man with Down Syndrome was not identifiable, and argued that the lack of identification meant that the fairness standard did not apply.

[26]  Identification is not a requirement of the fairness standard; an individual only has to be “referred to” in a broadcast in order for Standard 6 to apply. Here, we are satisfied that the man referred to was not “exploited” or “humiliated” as envisaged by guideline 6e. We do not consider that the item could be characterised as making him a “laughing stock”. The host did not make any comments that were negative towards the man personally, and we agree with the broadcaster that he was held in positive esteem at the end of the story. The comments did not cause harm to the man’s reputation or dignity, and were therefore not unfair to him.

[27]  Accordingly, we decline to uphold the Standard 6 complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
8 June 2012

Appendix

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

1                  Lyn Fattorini’s formal complaint – 16 February 2012

2                 RadioWorks’ response to the complaint – 20 March 2012

3                 Ms Fattorini’s referral to the Authority – 21 March 2012

4                 RadioWorks’ response to the Authority – 23 March 2012

¹Turner and TVNZ, Decision No. 2008-112

²Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November, 2006)

³Decision No. 2006-030

⁴Decision No. 2008-091

⁵Decision No. 2002-152

⁶Commerce Commission and TVWorks Ltd, Decision No. 2008-014