BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.] 

The Authority has not upheld a complaint that action taken by NZME Radio Ltd was insufficient, after the broadcaster upheld a complaint under the discrimination and denigration standard about the use of the phrase ‘you’d have to be on the spectrum’ on Newstalk ZB’s Heather du Plessis-Allan Drive programme. As part of a discussion about the ‘political week that was’, political reporter Barry Soper commented, ‘you would have to be on the spectrum to go out there and vote for them [Te Pāti Māori]’, which the complainant considered was discriminatory towards people with autism. The Authority found the broadcaster’s decision to uphold the complaint, apologise to the complainant, and counsel du Plessis-Allan and Soper on the importance of considering the potential offence and impact of comments on sections of the community, was sufficient in the circumstances.

Not Upheld: Discrimination and Denigration (Action Taken)

The broadcast

[1]  During Heather du Plessis-Allan Drive on 4 August 2023 on Newstalk ZB, the host, Heather du Plessis-Allan, discussed the ‘political week that was’ with Senior Political Reporter Barry Soper. The discussion included the following exchange:

Host:       Right, we’ve had a couple of polls out this week, which makes it look more likely that we’re going to get a change of government in October, right? 

Soper:     Yeah well it’s like I’ve been expecting, that you, I think, between now and the election, you'll see the gap widen between Labour and National. It'll still be a tussle in the centre, I think, but it's the parties on the periphery that’ll in the end decide who's going to take the Treasury benches. […] And now there seems to be a sort of a standoff between Winston Peters and David Seymour, Seymour saying that he wouldn't work in a government with Peters. Look, I think they should stop this shadow-boxing before the election. It just is not good. It doesn't do anybody any good at all. The public will have their say. They’ll go out, they’ll decide which party they want. 

Host:       Oh, are you saying he shouldn't – Luxon shouldn’t rule out Winston? 

Soper:     No, I don’t think he should rule out Winston. 

Host:       But you were happy for Luxon to have ruled out Te Pāti Māori? 

Soper:     Well, Te Pāti Māori are so loony that – 

Host:       Some would think Winston is too. 

Soper:     Some would think Labour is. Some would think National is. Some would think the ACT party is. That's not to say – 

Host:       So it's about personal – it's about Barry Soper’s personal preference? 

Soper:     No it’s not at all, I mean, if you look at some of the impossible policies that are being promoted by the Māori Party – 

Host:       Yeah? 

Soper:     You’d have to say, you know, you would have to be on the spectrum to go out there and vote for them. 

Host:       Yeah? 

Soper:     And it's similar to the Green Party, I mean, you know, the wealth tax proposal. You're going to see pensioners that have been living in their houses for ages, having not just to pay rates but to pay because their house has increased in value. And that seems inherently unfair on me. So – you know, everybody will have their preference for whichever political party. 

The complaint and the broadcaster’s response

[2]  Chad Ffowcs-Williams complained that the broadcast breached the discrimination and denigration standard of the Code of Broadcasting Standards in New Zealand on the basis Soper’s comment ‘you would have to be on the spectrum to go out there and vote for them’ was a derogatory reference to people with autism. He stated:

• ‘This was an obvious reference to Autism Spectrum Disorder. This is bigoted and discriminatory language of the worst kind against one of the most marginalised groups in New Zealand society.’
• Noting his own experience advocating for someone with autism to get ‘the opportunities and respect’ they deserve in life, ‘[to] then have someone with a public platform use such discriminatory language makes me extremely angry’.

[3]  NZME Radio Ltd upheld the complaint under the discrimination and denigration standard, saying:

Although Mr Soper did not specifically refer to autism or any other neurodiverse condition, some people would consider ‘on the spectrum’ to mean someone who has a neurodiverse condition such as autism. We recognise that autistic or neurodivergent people are a section or sections of the community to which this standard applies or may apply. The comment complained about was made by Mr Soper off-the-cuff without fully considering the potential impact. While no malice was intended by Mr Soper towards people with autism or any neurodiverse condition, the comment complained about could have the effect of reinforcing harmful stereotypes or stigma faced by this section, or sections, of the community.

[4]  NZME apologised to the complainant for the breach, and for the offence caused. It advised that in response to upholding the complaint, Soper and du Plessis-Allan had been given feedback and counselled regarding this matter, including in relation to the importance of fully considering the potential offence and impact of comments on sections of our community. NZME’s Chief Radio Officer was also made aware of the outcome of the complaint.

[5]  The complainant was not satisfied with this action taken by the broadcaster and so referred the matter to us, saying:

I am not satisfied with NZME's response. All they have done is counselled the individual broadcasters involved. In my view they should be forced to do an on air apology and explain to their audience why they were wrong to use those slurs about Autistic people. A fine would also be appropriate. And a donation to Autism New Zealand would be a good response from NZME.

The standard

[6]  The discrimination and denigration standard¹ protects against broadcasts which encourage the 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.

Our analysis

[7]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[8]  We have also considered the important right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of ideas, information and content and the public’s right to receive that information. We may only intervene and uphold a complaint where the broadcast has caused actual or potential harm at a level that outweighs the right to freedom of expression, and has not been remedied by the action taken.²

Action Taken: Discrimination and Denigration

[9]  Where the broadcaster has upheld a complaint in the first instance, our role is to consider the action taken assessed against the gravity of the breach.³ In assessing the sufficiency of actions taken to remedy a breach we consider the severity of the conduct, the extent of the actual or potential harm that may have arisen and whether the action taken appropriately remedied the alleged harm.⁴

[10]  In terms of assessing the severity of the conduct and extent of harm, we considered the following factors to be relevant:

• The comment had the potential to cause offence to people with autism and their family members, as is evident from the complaint.
• However, the comment was made off-the-cuff in a live broadcasting situation, appeared unintended to cause harm, and did not contain any direct malice or nastiness towards people with autism – nor were people with autism the subject of the conversation. The comment was not dwelt on or repeated.
• The comment was made as part of serious political commentary in relation to the upcoming general election. Such commentary carries high value in terms of the exercise of freedom of expression.⁵  
• NZME acknowledged the potential harm, upheld the complaint in the first instance (including demonstrating awareness of guidance in recent Authority decisions) and ensured the relevant people were made aware of the complaint and the outcome, and counselled to avoid similar conduct. It also apologised to the complainant for the comment being aired, and for the offence it caused.

[11]  Weighing the above factors, we do not consider any further action is warranted to remedy the potential harm in this case. While we acknowledge the phrase has the potential to be harmful, in this instance it was used fleetingly as part of a political discussion unrelated to people with autism, and was not intended to cause harm. The broadcaster took appropriate steps in response to the complaint, and its acknowledgement of the potential harm and its decision to uphold the complaint in relation to the phrase complained about will be publicly notified through this decision and give guidance to other broadcasters. We consider this to be sufficient in the circumstances.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
31 January 2024    

Appendix

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

1  Chad Ffowcs-Williams’ formal complaint to NZME – 7 August 2023

2  NZME’s response to the complaint – 13 September 2023

3  Ffowcs-Williams’ referral to the Authority – 24 September 2023

4  NZME’s confirmation of no further comment – 10 October 2023

¹ Standard 4, Code of Broadcasting Standards in New Zealand
² Introduction, Code of Broadcasting Standards in New Zealand, page 4
³ See, for example, Horowhenua District Council and MediaWorks Radio Ltd, Decision No. 2018-105 at [19]; and Du Fall and the Radio Network Ltd, Decision No. 2014-055 at [8]
⁴ Lerner and MediaWorks Radio Ltd, Decision No. 2021-091
⁵ Commentary, Standard 4, Code of Broadcasting Standards in New Zealand, page 12