BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

This decision was successfully appealed in the High Court:
CIV 2011-485-840  PDF137.27 KB

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Sunday – discussed anniversary of massacre at Aramoana – interviewed policeman who was involved – said “fucking” twice – allegedly in breach of good taste and decency, law and order, responsible programming and children’s interests standards

Findings
Standard 1 (good taste and decency) – Authority’s research suggests majority of viewers would consider “fucking” unacceptable before 8.30pm – majority decision – upheld  

Standard 9 (children’s interests) – broadcaster did not adequately consider children’s interests in broadcasting the word “fucking” during their normally accepted viewing times – majority decision – upheld

Standard 2 (law and order) – broadcast did not encourage viewers to break the law or otherwise promote, condone or glamorise criminal activity – not upheld

Standard 8 (responsible programming) – unclassified current affairs programme – standard not applicable – not upheld

No Order

This headnote does not form part of the decision. 

Broadcast

[1]   An item on Sunday, broadcast on TV One at 7.30pm on 14 November 2010, covered the 20^th anniversary of the massacre at Aramoana in Dunedin, and reflected on the events that took place that day. Introducing the item, the Sunday presenter said:

Tonight we look back through the eyes of two men: the police officer who finally took down David Gray and the son of a policeman who heroically confronted him. ...Some people may find aspects of our story disturbing.

[2]   At the beginning of the second segment, the presenter stated, “so Aramoana killer David Gray is still on the loose... and now special police units have moved in. Again we advise some images and language may offend some people”.

[3]   An interview with the policeman who shot David Gray was then screened. Viewers were informed that it was the first time he had spoken about the events that took place. Having described an exchange of gunfire with Mr Gray, the policeman explained the dialogue between himself and the offender, saying:

I yelled out to him... I never told anybody this and I don’t know if it should be recorded for history or not, but I said to him, “You’re fucking good with women and kids, come out here and have a go at us.”

[4]   Describing shooting Mr Gray, the policeman reported Mr Gray’s request to the officers, “Kill me, fucking kill me.”

Complaint

[5]   P Freeman made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the policeman’s “obscene language” breached standards relating to good taste and decency, law and order, responsible programming and children’s interests. The complainant considered that it gave “a negative impression of New Zealand policing” and that “it signals that criminals should naturally abuse, taunt and swear at police because police are expected by TV to talk just like the cons.” P Freeman was of the view that the broadcaster may have “coached” the interviewee into thinking he had used those words.

Standards

[6]   P Freeman nominated Standards 1, 2, 8 and 9, and guideline 2b of the Free-to-Air Television Code of Broadcasting Practice in the complaint. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 2 Law and Order

Broadcasters should observe standards consistent with the maintenance of law and order.

Guideline 2b

Factual programmes should not glamorise criminal activity or condone the actions of criminals.

Standard 8 Responsible Programming

Broadcasters should ensure programmes:

• are appropriately classified;
• display programme classification information;
• adhere to timebands in accordance with Appendix 1;
• are not presented in such a way as to cause panic, or unwarranted alarm or undue distress; and
• do not deceive or disadvantage the viewer.

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters should consider the interests of child viewers.

Broadcaster's Response to the Complainant

[7]   TVNZ contended that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was shown, including the programme’s classification, time of broadcast, the intended audience and the use of warnings. The broadcaster noted that the Authority had previously considered the use of variations of the word “fuck” in a PGR-rated programme called Police,¹ and found that “even if the language was considered by some to be offensive, it did not exceed community expectations with respect to good taste because it accurately reflected actual situations confronted by the police. ...a clear warning was given at the beginning of the programmes alerting viewers to the fact that they contained offensive language, and that they were filmed ‘as the action unfolded’.” TVNZ said that the Authority therefore declined to uphold breaches of Standard 1 in those cases.

[8]   On this occasion, the broadcaster noted that Sunday was a long-running current affairs programme aimed at adults, which often contained topics and material more suited for mature viewers. It emphasised that the programme had given two warnings about content and language during the course of the item, both in the introduction, and immediately preceding the segment where the policeman used the language subject to complaint. TVNZ maintained that the decision to broadcast the interview unedited was not taken lightly. The language the policeman used “was his genuine unscripted recollection of events,” it said. TVNZ considered that the massacre at Aramoana was a significant event in New Zealand history and “it was considered... to be important to record and broadcast what [the policeman] recounted without being censored”. This decision to include the language uncensored was reinforced by its right to freedom of expression, it argued.

[9]   For these reasons, TVNZ concluded that the item did not breach Standard 1.

[10]   Turning to Standard 2 (law and order), TVNZ argued that to find a breach of the standard, it must be convinced that a broadcast not only implicitly condemned a particular law, but also actively promoted disrespect for it. The same approach was taken with items describing or portraying criminal behaviour; depiction or discussion of criminal behaviour was usually acceptable, and the exceptions tended to be if a broadcast explicitly instructed how to imitate an unusual criminal technique or suicide, or if it glamorised the criminal activity.

[11]   TVNZ did not consider that the item glamorised crime or condoned the actions of criminals in the manner alleged by the complainant. David Gray’s actions were portrayed as horrific, it said, and there was no element of promotion or encouragement of the events that occurred. Further, the broadcast of the word “fuck” was not illegal. Accordingly, the broadcaster declined to uphold the Standard 2 complaint.

[12]   TVNZ noted that Standard 8 (responsible programming) was designed to ensure programmes were correctly classified and ratings were displayed. It pointed out that Sunday was unclassified because it was a current affairs programme. However, it considered that, as Sunday screened during a PGR timeslot, “there would be considerable audience expectation that the programme may contain material more suited to a mature audience”. It emphasised that the item contained two warnings for distressing material and offensive language. TVNZ reiterated that the Authority had previously declined to uphold complaints about the use of variations of the word “fuck” in a PGR-rated police programme, and that on this occasion the policeman was recalling a significant event in New Zealand history.

[13]   For these reasons, the broadcaster declined to uphold the complaint under Standard 8.

[14]   With regard to Standard 9 (children’s interests), TVNZ reiterated that Sunday had an adult target audience, and argued that the Authority had previously acknowledged that younger viewers tended not to watch the news unsupervised. The broadcaster considered that particular care had been taken to warn viewers that the item contained images and language that may offend, which gave parents ample opportunity to decide whether to allow children to watch the item. Further, the language did not occur until the second part of the item, following a second warning.

[15]   The broadcaster reiterated its view that the decision not to bleep out the interviewee’s language was well thought through, and that it was an exception to its normal editorial position. TVNZ considered that there was “significant public interest in hearing the words spoken to and by the country’s worst mass killer at the time of his death”. It said, “In this case the unvarnished recollections of one of the main protagonists in this significant event in New Zealand history was considered by the programme to be important to record and broadcast without being censored.” It reiterated that this was consistent with its right to freedom of expression. Further, TVNZ considered that the language was in keeping with the rest of the material discussed, including details of the murders.

[16]   Accordingly, TVNZ concluded that it had adequately considered the interests of child viewers in screening Sunday, and it declined to uphold the Standard 9 complaint.

Referral to the Authority

[17]   Dissatisfied with the broadcaster’s response, P Freeman referred the complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[18]   The complainant argued that the programme was “loaded with unnecessary explicit obscenity” and was broadcast too early in the evening. P Freeman noted that there was no written warning for language, but considered that the words used should have been bleeped out at any rate. The complainant contended that by allowing and encouraging the policeman to use such language, TVNZ had broken laws, and incited imitation in breach of guideline 2b to Standard 2.

[19]   P Freeman maintained that the programme had breached Standards 1, 2, 8 and 9.

Broadcaster’s Response to the Authority

[20]   TVNZ asserted that “the use of a written warning is not industry practice for news and current affairs programming – warnings are given verbally in such programming.” It maintained that the policeman was not “pressured” into saying anything, but rather gave his genuine recollection of the events.

Authority's Determination

[21]   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.

Majority view – Mary Anne Shanahan, Leigh Pearson and Te Raumawhitu Kupenga

Standard 9 (children’s interests)

[22]   At the outset, we the majority acknowledge that the broadcaster has the right to freedom of expression under section 14 of the Bill of Rights Act 1990. We acknowledge the importance of section 14 and the values underlying the right to freedom of expression. Any restriction on the broadcaster’s right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[23]   Looking at Standard 9 (children’s interests), the Authority has previously determined that upholding a complaint under this standard would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Act.² We see no reason in this case to depart from that finding.

[24]   In considering whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 9 on this occasion, we note that the following contextual factors all favour the broadcaster’s decision to include the word “fucking” twice during the broadcast:

• Sunday was an unclassified current affairs programme
• the item contained two warnings for content, including one for language that may offend
• the programme had an adult target audience.

[25]   We also acknowledge that there was public interest in the Sunday item because it revisited a significant historical event, and that the item as a whole could be considered as high value speech. Against these factors we must weigh the objective and significance of the broadcasting standard concerned, and the extent to which upholding the complaint would limit the broadcaster’s right to freedom of expression.

[26]   In our view, the objective of Standard 9 is to protect children from content which is unsuitable for them. In the Authority’s 2006 publication Freedoms and Fetters, it was observed that:

...children are worthy of special protection. Whether about radio or television, the BSA’s decisions emphasise its strong expectation that material likely to be heard or seen by children should recognise their innocence and vulnerability. The television classification and watershed systems underpin this special protection.

[27]   We agree with the sentiment expressed above, and are of the view that the objective which underpins the children’s interests standard is of high importance.

[28]   In Lord and Sky Network Television Ltd³ the Authority found that the broadcaster did not adequately consider the interests of child viewers by broadcasting the word “fuck” during a 7.30pm documentary-style programme about the Amazon. In that decision, the Authority pointed to research published in 2006 which showed that the word “fuck” was considered by a majority of New Zealanders surveyed to be unacceptable when used as a term of abuse in a television movie broadcast in the AO time-band.⁴ It concluded that the word would be even less acceptable prior to 8.30pm.

[29]   Since that decision, we have conducted specific research on the acceptability of words in particular contexts. Research published in 2010 showed that 71 percent of people surveyed considered “fuck” fairly or totally unacceptable in the context of an interview, regardless of the time of broadcast. 75 percent considered the word fairly or totally unacceptable in the context of a television drama broadcast between 7pm and 8.30pm.⁵

[30]   Against that background, we conclude that the broadcast of the word “fucking” in a current affairs interview during children’s viewing times would be unexpected, notwithstanding the warnings for language, and unacceptable to a majority of New Zealanders. Even if the subject matter of the programme is not of interest to children or the subject matter too complicated, an expletive such as “fucking” will be obvious and noticed by children who are in the room.

[31]   We also consider that upholding this complaint would not place a significant limit on TVNZ’s right to freedom of expression. A finding that the broadcast of the word “fucking” twice during a 7.30pm programme breached Standard 9 is not a finding that the story of Aramoana could not be told; it would simply need to be broadcast with the word “fucking” muted out, or during a later time-band when children would not be viewing.

[32]   Having weighed all of the considerations outlined above, we have reached the conclusion that the Standard 9 complaint should be upheld. Children deserve protection from unsuitable language, and this finding does not unduly restrict TVNZ’s right to freedom of expression. Accordingly, we uphold the complaint that the broadcaster did not sufficiently consider the interests of child viewers by broadcasting the word “fucking” twice during their normally accepted viewing times.

Standard 1 (good taste and decency)

[33]   As we the majority have observed above in our consideration of Standard 9, any limit placed on the broadcaster’s right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[34]   In Turner and TVNZ,⁶ the Authority determined that upholding a complaint under Standard 1 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression. In that decision, the primary objective of Standard 1 was described as follows:

... to protect against the broadcast of sexual content, violent material, and language that exceeds current norms of good taste and decency in the context in which it was shown.

[35]   We consider that the objective outlined above is an important one. Viewers or listeners should be able to make informed choices about the kind of broadcast material they consume, and have the right not to be offended by material which exceeds norms of good taste and decency in the context in which it is shown.

[36]   We consider that our reasoning in respect of Standard 9 is also relevant to our consideration of whether Standard 1 was breached. The same contextual factors favour the broadcaster’s decision to broadcast the word “fucking” during the PGR time-band. The Authority’s research showing the unacceptability of the word “fucking” during an interview, and the fact that upholding the complaint would not place a significant limitation on the broadcaster’s freedom of expression, must be weighed against those factors.

[37]   While the word “fucking” may be increasingly commonplace in daily use, our research shows it remains unacceptable if broadcast in the PGR time-band. Words may be acceptable when used in everyday language, but unacceptable when transmitted into the home. This is particularly so when children may be present. The repetition of the word in a broadcast item during the PGR time-band was not essential to preserve the historical accuracy of the item and, in our view, adult viewers would still have appreciated the meaning and tone of what the interviewee was saying if the language had been bleeped. The broadcaster’s right to freedom of expression would not be unduly restricted in this regard.

[38]   Weighing these factors against each other, we have reached the conclusion that the Standard 1 complaint should be upheld and that doing so would be a reasonable and proportionate limit on TVNZ’s freedom of expression.

Standard 2 (law and order)

[39]   The complainant contended that by allowing and encouraging the policeman to use coarse language, TVNZ had broken laws, and incited imitation in breach of guideline 2b to Standard 2. P Freeman considered that the programme encouraged criminals to use similar language when dealing with the police.

[40]   The Authority has stated on a number of occasions that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law or otherwise promote, glamorise or condone criminal activity (see, for example, Taylor and TVWorks⁷).

[41]   In the majority view, there is no evidence to suggest that the broadcaster encouraged the policeman to swear; it was simply his recollection of what happened, expressed in his own words. We disagree that by broadcasting the interview uncensored TVNZ encouraged criminals to swear at police, which, in any event, is not a criminal offence. The item did not in any way celebrate the actions of the offender, but rather reflected on the massacre at Aramoana as a horrific and tragic event.

[42]   Accordingly, we find that nothing in the broadcast encouraged viewers to break the law, or otherwise promoted, condoned or glamorised criminal activity. We therefore decline to uphold the Standard 2 complaint.

Standard 8 (responsible programming)

[43]   Standard 8 requires that programmes are correctly classified, display programme classification information, and adhere to the time-bands set out in the Code.

[44]   As Sunday was an unclassified current affairs programme, we the majority find that Standard 8 does not apply in the circumstances, and we decline to uphold this part of the complaint.

For the above reasons a majority of the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Sunday on 14 November 2010 breached Standards 1 and 9 of the Free-to-Air Television Code of Broadcasting Practice.

Orders

[45]   Having upheld parts of the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We the majority consider that on this occasion the publication of this decision is sufficient to clarify for broadcasters our expectations surrounding the broadcast of this type of language before 8.30pm, and that no order is warranted.

Minority view – Peter Radich

[46]   The mass killings of men, women and children by a gunman at Aramoana 20 years ago caused much distress in the New Zealand community and the events remain clear in the minds of many people. The broadcast on the Sunday programme was focused on the bravery of Sergeant Stuart Guthrie who went, inadequately armed, to confront the gunman and who was shot and killed by the gunman. A central part of the programme was an interview with a policeman, now retired, who was then a member of the Armed Offenders Squad which was called to the emergency. It was this policeman who shot the gunman.

[47]   The policeman, in a measured and considered way and with some hesitation, described what happened and what was said when he saw and challenged the gunman. The policeman’s words, used on the programme, “You’re fucking good with women and kids, come out here and have a go at us” and the gunman’s later response after he had been shot, “Kill me, fucking kill me” were repetitions by the policeman of the words actually used.

[48]   The question before us is whether the word “fucking” spoken twice on the Sunday programme, once to say what he, the policeman said, and once to say what the gunman said, was a breach of broadcasting standards. 

[49]   The general approach followed by broadcasters and this Authority is that the use of the word “fuck” and its derivatives before 8.30pm is not acceptable as its use would be contrary to the expectations of many viewers and strong language of this kind is not considered appropriate during children’s viewing times. Research which this Authority has undertaken, but which is of a general nature only, shows that most people would not regard the use of the word “fuck” and its derivatives to be acceptable in a typical news or current affairs interview. There are no rigid rules and nor should there be. There can be exceptions to the general rule and the question is whether this is one of those exceptional situations. The approach of this Authority has consistently been that, when allegedly objectionable material is being considered, context is all important.

[50]   Words need to be considered in the context in which they are used and in the context in which they are broadcast. It is not the collection of letters that makes a word unacceptable but rather it is the meaning which some words have, the context in which they are delivered and the context in which they are broadcast. The word “fuck” and its derivatives can be used in many ways. It is a word that is increasingly commonplace in daily use and it is one which in our society, in my view, no longer attracts the surprise and censure that it once attracted. In some contexts it is acceptable and in others it remains unacceptable. 

[51]   The word “fucking” used by the policeman when he called out to the gunman was the expressive and natural use of language in an extreme and dire situation. The response of the gunman was his expressive and emphatic use of language when he was in extremis. This was, in my opinion, a part of the English language being used by two men each of whom was in a situation of uttermost crisis.

[52]   In his expression in the broadcast interview of the words used 20 years before, the policeman was considered and sober in his delivery. He had weighed whether or not to use the words and had decided to do so in the interests of completeness and accuracy. His first use of the word as he spoke it was powerful and direct and his second use of the word as spoken by the gunman was quiet and subdued. The overall effect was to remind viewers of the awful events at Aramoana, of the bravery of some involved and of the lasting effects of these events including those on the policeman and those on the family of Sergeant Guthrie. 

[53]   In my opinion it was not a breach of broadcasting standards for the words to have been broadcast as they were spoken. I consider that to have bleeped or otherwise obscured the words would have been purposeless, inappropriate and demeaning of the policeman and the care which he had taken. The bleeping of the words would have obscured direct aural transmission of the meaning but the presence of the bleep would have triggered a mental message in most people that the policeman had, behind the bleep, said “fucking”. I believe that most adults would have felt the power of the interview and ought not to have been upset by the use of the words complained about. There were two clear warnings about content and language.

[54]   Insofar as children’s interests are concerned, I accept that this programme was broadcast during the normal viewing times of children. The Sunday programme is a serious and respected current affairs programme which targets adult viewers and which has no natural attraction for children. Given the warnings about graphic content and language, parents had some opportunity to regulate the viewing of this programme by their children.   

[55]   There were some explicit images including those of bodies of people killed. There were images of police hunting for the gunman and there were images and sounds of shots being fired. It has not been asserted that the imagery and commentary about the mass murders was unacceptable for children’s viewing. The complaint is that it was the use of the complained about word which took the programme to a level of unacceptability. I find it difficult to hold that a programme about the mass murder of men, women and children is within broadcasting standards as they apply to children but that use of the word “fucking” in that programme takes the programme to an unacceptable level.

[56]   A principal test in relation to children’s interests is whether the material is likely to “disturb or alarm” children. I do not think that the use of the word would have had this effect nor do I think that the use of the word in its context would have been harmful to children. I think that a commonsense approach needs to be taken to this issue.   

[57]   I believe this to be a case which is an exception to the general rule and which most viewers would have seen as an exception to the general rule. In my opinion, this was good quality television recording part of our social history which, with its warnings, was able to be broadcast at the time that it was and which was within the bounds of freedom of expression.

[58]   The complainant has alleged that the broadcaster encouraged the policeman to use what was said to be obscene language and that the policeman’s recounting of the complained about word encouraged people to use bad language to Police. I see the complaints in relation to Standard 2 and Standard 8 as being without merit and as being indicative of the complainant having misjudged the broadcast. I therefore support the view of the majority that there was no breach of Standard 2 in relation to law and order. I also support the view that Standard 8 does not apply.

Signed for and on behalf of the Authority

Peter Radich
Chair
8 April 2011

Appendix

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

1                  P Freeman’s original complaint – 9 December 2010

2                 TVNZ’s response to the complaint – 13 December 2010

3                 P Freeman’s referral to the Authority – 17 January 2011

4                 TVNZ’s response to the Authority – 10 February 2011

¹Werder and TVNZ, Decision Nos. 1998-115 and 1998-116

²See Harrison and TVNZ, Decision No. 2008-066

³Decision No. 2009-137

⁴Freedoms and Fetters: Broadcasting Standards in New Zealand, (Broadcasting Standards Authority,
 2006), at pages 95-98.

⁵What Not to Swear: The Acceptability of Words in Broadcasting (Broadcasting Standards Authority,
  2010) at page 22

⁶Decision No. 2008-112

⁷Decision No. 2010-008