BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Warning: This decision contains language that some readers may find offensive.

Summary  

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

The Authority did not uphold a complaint under the good taste and decency and children’s interests standards about an item on 1 News reporting live from Wellington amid protests against increasing rates of sexual violence, which showed a protest sign in the background reading ‘Don’t fuckin’ touch me’. Although some viewers may have been surprised by this, the Authority found overall the potential harm did not outweigh freedom of expression. The Authority took into account: the high public interest in the item; the sign was partially obscured for half of the item; the word complained about was not spoken; and the broadcaster had limited editorial control over the public’s actions during a live cross to the reporter.

Not Upheld: Good Taste and Decency, Children’s Interests

The broadcast

[1]  On 31 March 2021, a 1 News item covered a protest in central Wellington over the increasing sexual assault rates in the city. During a live cross to the reporter, protestors and protest signs were behind her, including one which read: ‘Don’t fuckin’ touch me.’ The sign was at times partially obscured by other signs or people, however ‘fuck’ or ‘fuckin’’ were visible onscreen for a total of approximately one minute of the two-minute-long item.

The complaint

[2]  Ken Francis complained the broadcast breached the good taste and decency and children’s interests standards:

• ‘It was shocking to see a protest placard featured behind a “live” reporter brazenly and unashamedly bearing the F-word…I sat there with embarrassment with my family, willing the producer to move away from the backdrop, [or] for Simon Dallow to break to something more seemly, but there was no movement away … And for a long live interview – seemed like ages, but probably close to a minute – the unsolicited obscenity (protesting against sexual predation of all things) contaminated our lounge.’
• ‘Although it was the news, presumably watched mainly by adults, it was still prime family time, when the TVs are on in family homes all over the country; with children watching – sometimes supervised, sometimes not. But even if supervised, what are parents supposed to say or do in such an awkward event/item?’

The broadcaster’s response

[3]  TVNZ did not uphold Mr Francis’ complaint for the following reasons:

• 1 News is an unclassified news programme aimed at an adult audience.
• It is accepted (including in past Authority decisions) that children are unlikely to watch the news unsupervised and there is an expectation parents will exercise discretion around viewing news and current affairs programmes with their children.
• The sexual violence rates in Wellington and the protest were issues of high public importance.
• The voice of the protestors as represented by the placards was relevant to the item.
• The placard was not the focus of the item, and the word in question was not referenced or mentioned in the item.
• TVNZ provided comments from the 1 News crew explaining they had taken steps to prevent the placard being shown in the background:

'Due to the nature of the march we had extra people down there for security and one of them saw the placard and asked the person to not put it up behind the live shot. This was agreed to by the protestor at the time. When the camera operator was setting up the placard wasn’t raised/visible and it wasn’t until Imogen was about to go on air that it was raised. As pointed out this was a public event and the behaviour of the crowd was not in our control. Our team were also limited in their options for setting up a shot as it was a narrow site and there were speeches at the far end of the site. I also think the camera operator was likely most focused on the reporter and technical details of the live shot…’

• Responding to these comments, TVNZ said, ‘It is a reality of live newsgathering that the crew and reporter, despite their best efforts, will not be able to exercise complete control over the behaviour of people in a public place. Nevertheless we consider that the risk of unforeseen eventualities is offset by the inherent value of live newsgathering, particularly in relation to serious issues such as this one.’
• ‘It would have been technically difficult, if not impossible, to reframe the shot, and switching from video to an “audio link” (audio with no pictures) is something that we would rarely, if ever, do, even if we were set up for it, which we weren’t in this instance. In essence, it was not reasonably practicable to “circumvent” the live pictures without severely disrupting the live cross and the bulletin more broadly, which, in the circumstances, we do not agree would have been a proportionate response to the appearance of the potentially offensive sign.’
• Overall, ‘Considering the circumstances of the broadcast (live and with limited editorial control), we consider that the potential offence caused by the placard was offset and ultimately justified by the high public interest in the issue and the importance of properly informing viewers of the nature of the protest.’

The standards

[4]  The good taste and decency standard¹ states current norms of good taste and decency should be maintained, consistent with the context of the programme. The standard is intended to protect audiences from content likely to cause widespread undue offence or distress, or undermine widely shared community standards, in the context.²

[5]  The children’s interests standard³ requires broadcasters to ensure children are protected from broadcasts which might adversely affect them. Material likely to be considered under this standard includes violent content or themes, offensive language, social or domestic friction and dangerous, antisocial or illegal behaviour where such material is outside the expectations of the programme’s classification.⁴

Our analysis

[6]  We have watched the broadcast and read the correspondence listed in the Appendix.

Freedom of expression and public interest

[7]  Our starting point is to recognise the important right to freedom of expression which is protected under the New Zealand Bill of Rights Act and a fundamental right in our democracy. It includes the broadcaster’s right to offer a range of ideas and information, the audience’s right to receive that information, and in this case also the right of the New Zealand public to express themselves. This particular news item, reporting on the protest against the increased level of sexual assaults in the capital, carried high public interest and high value in terms of the exercise of the right to freedom of expression.

[8]  Our task is to weigh this value and public interest in the item against any harm potentially caused by the broadcast.⁵ We may only intervene and uphold a complaint where there is actual or potential harm at a level that justifies placing a reasonable limit on freedom of expression.

[9]  The harm alleged here, is the display of potentially offensive language, particularly at a time when children may be watching. While some viewers were likely to be surprised by this protest sign appearing onscreen during the 6pm news, we have concluded overall the potential harm did not outweigh the right to freedom of expression.

Good Taste and Decency

[10]  We acknowledge the complainant’s concerns about the potential offence caused by the visibility of the word ‘fuckin’ in a 6pm news item, given what our research into community attitudes towards language tells us. In our 2018 research, Language that May Offend in Broadcasting, the word ‘fuck’ ranked 13 (out of 31 words tested) in terms of its offensiveness, with 39% of those surveyed finding its use ‘totally unacceptable in all scenarios’.⁵

[11]  However, the role of the standards is not to prohibit challenging or potentially offensive material, but rather to ensure sufficient care is taken so material is played only in an appropriate context.⁷ Challenging material broadcast on a news programme is more likely to be acceptable. Similarly, offensive material that otherwise advances our understanding of important issues is unlikely to contravene the standard.⁸ The question is whether, in this particular context, the broadcast seriously violated widely shared community standards.⁹

[12]  Relevant contextual factors, which we consider mitigated the potential harm in this case, include:¹⁰

• 1 News is an unclassified news programme targeted at an adult audience (it is not required to carry a rating).
• The nature of news programmes is that they frequently contain challenging (and sometimes disturbing) material, reflective of the world we live in.¹¹
• The particular placard was not central to, nor was it the focal point of the report.
• The word complained about was visible for a total of approximately one minute, in between the placard being partially obscured by other protestors and signs. This equated to about half of the two-minute-long segment.
• The word was not spoken or otherwise mentioned or highlighted by the reporter.
• The item was a live cross (rather than being pre-recorded or scripted). The broadcaster had limited editorial control over the footage and the public’s actions, notwithstanding the efforts made by the production crew (as advised in comments provided by TVNZ) to avoid having the particular placard included in-shot.¹²
• The footage of the protest and the protestors’ signs strongly conveyed how the protestors felt about an important issue, the increasing rates of sexual assault statistics/violence in Wellington. This carried high public interest value.

[13]  As this situation has demonstrated, live television does carry risks but is an important part of conveying such news stories. The live cross to the protest gave viewers a visual reference for the situation on the ground as it was unfolding – one in which strong views and emotions were being expressed. The protestors’ placards, including the placard in question, were ways the protesters expressed how they felt about an issue of great importance to them – and an issue carrying high public interest generally – in their own words.¹³ We consider this was of high value in terms of the right to freedom of expression, and we should be cautious about interfering with its broadcast and its reception.¹⁴

[14]  We accept some viewers will have been surprised, and some may have been offended, by the word displayed. But in the context, we do not consider the potential harm was at a level that justifies regulatory intervention or upholding this part of the complaint. To circumvent the live pictures in the manner suggested by the complainant, or expect the broadcaster to spontaneously alter the format of the cross (for example offering the audio only – as noted by the broadcaster), would have reduced the impact of the item. Requiring such steps in this particular context would not in our view be a reasonable or justified restriction of the right to freedom of expression, given the high value of the item overall.

[15]  We therefore do not uphold the complaint under this standard.

Children’s Interests

[16]  The purpose of this standard is to enable audiences to protect children from material that unduly disturbs them or is harmful. Again, this is highly dependent on the context in which the content occurred, and the wider context of the broadcast. It is not possible or practicable for broadcasters to shield children from all potentially unsuitable content.¹⁵

[17]  Taking into account the same mitigating factors and reasons we have discussed above, we do not consider the item breached the children’s interests standard. 1 News is targeted at an adult audience. As noted by the broadcaster, the Authority has recognised for a long time in its decisions that children are unlikely to watch the news unsupervised, and there is an expectation that parents exercise discretion when viewing news and current affairs programmes with their children.¹⁶

[18]  The Authority has also previously recognised that in some instances potentially offensive language will be justified by the context, even when it is broadcast during children’s viewing times.¹⁷ As we have said, we consider this is such a case, given the item’s high value and public interest.

[19]  We therefore do not uphold the complaint under this standard.

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

Susie Staley MNZM
Acting Chair
6 September 2021

Appendix

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

1  Ken Francis’ original complaint to TVNZ – 31 March 2021

2  TVNZ’s decision on the complaint – 30 April 2021

3  Mr Francis’ referral to the Authority – 3 May 2021

4  TVNZ’s response to the referral – 10 May 2021

5  Mr Francis’ final comments – 10 May 2021

6  TVNZ’s final comments – 24 May 2021

¹ Standard 1 of the Free-to-Air Television Code of Broadcasting Practice
² Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
³ Standard 3 of the Free-to-Air Television Code of Broadcasting Practice
⁴ Guideline 3a
⁵ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁶ Broadcasting Standards Authority (June 2018) “Language that May Offend in Broadcasting” <www.bsa.govt.nz>
⁷ Moir and Television New Zealand Ltd, Decision No. 2021-016 at [7]
⁸ As above
⁹ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
¹⁰ Guideline 1a
¹¹ Torrey and Mayell and Television New Zealand Ltd, Decision No. 2019-102
¹² O’Shaughnessy and MediaWorks TV Ltd, Decision No. 2014-086 at [21]
¹³ Cant and Television New Zealand Ltd, Decision No. 2021-030 at [18]. See also Wilton and Discovery NZ Ltd, Decision No. 2021-001 at [14] and [15].
¹⁴ Family First New Zealand and TVWorks Ltd, Decision No. 2012-037 at [8]
¹⁵ Commentary: Children’s Interests, Broadcasting Standards in New Zealand Codebook, page 13 and 14
¹⁶ Lowry and Television New Zealand Ltd, Decision No. 2018-051 at [9]. See also Larsen and Television New Zealand Ltd, Decision No. 2012-055
¹⁷ See Television New Zealand Ltd v Freeman, CIV 2011-485-840 at [30] to [34]. See also Family First New Zealand and TV Works Ltd, Decision No. 2012-037