BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority did not uphold a complaint that two items on Newshub Live at 6pm breached the offensive and disturbing content, and children’s interests standards. The programme included interviewees using the terms ‘shit’ and ‘holy shit’. Considering relevant contextual factors, the BSA’s guidelines on low-level language, and the expectation children are supervised when watching the news, the Authority found the relevant language was not at a level meriting regulatory intervention.

Not Upheld: Offensive and Disturbing Content, and Children’s Interests

The broadcast

[1]  The broadcast of Newshub Live at 6pm on 18 August 2022 reported on forecasted flooding in Westport, where a resident who was interviewed stated the local council needed to get its “shit together”, and build walls to protect Westport.

[2]  The broadcast later featured a story on a large fire at a scrap metal yard, where a witness to the fire stated they ‘went out to the corner, and thought “holy shit”. It’s you know, really big.’

The complaint

[3]  Tony Franklin complained the broadcast breached the offensive and disturbing content, and the children’s interests standards of the Code of Broadcasting Standards in New Zealand:

If this language would not be acceptable coming from the presenter and if it would not have been acceptable coming from an advertiser during a commercial break why would it be acceptable coming from someone else just because it was a member of the public? The end result is just the same - it got broadcast into our living room at a time when I believe we had a reasonable expectation that we could watch a program such as the evening news without any inappropriate language - and the news clip would not have been any less informative with this language edited.

The broadcaster’s response

[4]  The broadcaster apologised for the offence caused, but did not uphold the complaint because ‘both instances of the word “shit” being spoken were the vernacular of those being interviewed’. The broadcaster advised the complainant:

Last year, the Broadcasting Standards Authority released guidance entitled 'Complaints that are unlikely to succeed'.  In relation to low-level coarse language, the guidance states that "isolated instances of low-level bad language will rarely breach standards, particularly when aired during programmes rated PG or above, or during news bulletins. Words and phrases considered to be low-level bad language include[s] ... ‘shit’.  While these words may not be everyone’s language of choice, they have become commonly used.

The standards

[5]  The purpose of the offensive and disturbing content standard¹ is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.² The standard takes into account the context of the programme, and the wider context of the broadcast, as well as information given by the broadcaster to enable the audience to exercise choice and control over their viewing or listening.

[6]  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 or sexual 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

[7]  We have watched the broadcasts and read the correspondence listed in the Appendix.

[8]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁵

Context

[9]  The context in which the statements occurred and the wider context of the broadcast are relevant to assessing whether a programme has breached the offensive and disturbing content, and children’s interests standards.

[10]  In this case, we are influenced by the following contextual factors:

• The relevant terms were used only once by each of the interviewees.
• The language was not used in an aggressive or vitriolic way.
• The language was not directed at an individual. It was used as an expression of frustration with the council in the first clip, due to ongoing flooding issues in Westport, and used as an exclamation by the second interviewee, in describing the severity of the fire.
• Newshub Live at 6pm is an unclassified news and current affairs programme (it is not required to carry a rating).
• The items were both stories told from the perspectives of locals describing their own experiences. The expressions used were their own vernacular, and the tone and language used does not go beyond what the audience would expect from the programme.
• Both segments were of some public interest, portraying significant issues or events occurring in different parts of the country.

[11]  We also note:

• In our 2022 Language that may offend in broadcasting research⁶, the word ‘shit’ was removed from the research, as previous research had found it to be one of the lowest ranked words researched in terms of unacceptability (30 out of 31 for overall unacceptability).⁷ This suggests the general level of unacceptability for this expression is low.
• In the BSA’s ‘Complaints that are Unlikely to Succeed’ ⁸ guidance, we advise ‘isolated instances of low-level bad language will rarely breach standards, particularly when aired during programmes rated PG or above, or during news bulletins. Words and phrases considered to be low-level bad language include… “shit”. While these words may not be to everyone’s language of choice, they have become commonly used. They are unlikely to surprise or offend a significant number of listeners.’

Offensive and Disturbing Content

[12]  This standard regulates broadcasts that contain sexual material, nudity, violence or coarse language, or other material that is likely to cause offence or distress.⁹ 

[13]  Having regard to the points above, and in particular the ‘Complaints that are Unlikely to Succeed’ guidance,¹⁰ and the decisions of the Authority issued over time¹¹ – which provide guidance to broadcasters and complainants about what is acceptable under the broadcasting standards – the Authority finds the language used in the broadcast was not of such a level as to undermine widespread community standards, and was unlikely to cause widespread undue offence or distress.

Children’s Interests

[14]  The purpose of the children’s interests standard is to enable audiences to protect children from material that unduly disturbs them, is harmful, or is likely to impair their physical, mental or social development.¹² The terms used in the broadcast, while potentially offensive to some, were not likely to have such serious impacts.

[15]  This finding takes into account the factors outlined above at paragraphs [10] and [11]. In addition, the Authority has previously recognised that adult supervision is expected, and parents/caregivers will exercise discretion, around viewing of unclassified news programmes as these programmes are likely to contain material inappropriate for children.¹³ In these circumstances, any potential harm to children is expected to be mitigated by such supervision and does not justify limiting the right to freedom of expression.

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

Susie Staley
Chair
20 December 2022    

Appendix

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

1  Tony Franklin’s formal complaint – 25 August 2022

2  Warner Bros. Discovery’s decision on complaint – 13 September 2022

3  Franklin’s referral to the Authority – 11 October 2022

4  WBD’s confirmation of no further comment – 14 October 2022

¹ Standard 1, Code of Broadcasting Standards in New Zealand
² Commentary, Standard 1, Code of Broadcasting Standards in New Zealand at page 8
³ Standard 2, Code of Broadcasting Standards in New Zealand
⁴ Guideline 2.2
⁵ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁶ See: “Language that may offend in Broadcasting” (February 2022) Broadcasting Standards Authority <www.bsa.govt.nz>
⁷ See: “Language that may offend in Broadcasting” (June 2018) Broadcasting Standards Authority <www.bsa.govt.nz> at page 6
⁸ See: “Complaints that are Unlikely to Succeed” at “Low Level Language” (accessed 16 November 2022) Broadcasting Standards Authority <www.bsa.govt.nz>
⁹ Guideline 1.1
¹⁰ See: “Complaints that are Unlikely to Succeed” at “Low Level Language” (accessed 16 November 2022) Broadcasting Standards Authority <www.bsa.govt.nz>
¹¹ See: Jefferies and Television New Zealand Ltd, Decision No 2020-081; Richards and Radio New Zealand Ltd, Decision No. 2018-006 at [11]; Harvey and Television New Zealand Ltd, Decision No. 2020-023; Godinet & Kay and NZME Radio Limited, Decision No. 2020-101 at [25]; McCaughan and MediaWorks TV Ltd, Decision No. 2016-062
¹² Commentary: Children’s Interests, Broadcasting Standards in New Zealand Codebook, page 10
¹³ Francis and Television New Zealand Ltd, Decision No. 2021-045 at [17]