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 the use of the word ‘douche’ following an interview with Hannah Tamaki breached the good taste and decency standard. The complaint was that Mrs Tamaki was referred to as a ‘douche’, which was not an acceptable way to refer to a woman. The Authority noted that the word was used on two occasions. The first use of the word originated from audience feedback saying Mrs Tamaki was ‘on the same page as [Donald Trump]; and that ‘Trump’s a douche’. The host’s later comment promoting an upcoming item – ‘from douches to [chef] Nadia Lim’ – was ambiguous as to whether or not it was intended to refer to Mrs Tamaki. In any event, the Authority did not consider the use of the word threatened community standards of good taste and decency in the context.

Not Upheld: Good Taste and Decency

The broadcast

[1]  An episode of The AM Show included an interview with Hannah Tamaki about her political party Vision NZ, which aired at 7.12am. Later in the programme, at around 7.41am, audience feedback was read on air by presenter Duncan Garner:

Lauren says Hannah’s on the same page as Trump: ‘Look after our own people before helping others. Sure Trump’s a douche, Duncan, but he’s done a lot for helping his country’s people. I wouldn’t vote for Hannah. I think she has a stance, though, that will get a reasonable amount of support.’

[2]  Mr Garner previewed an upcoming segment before the ad break with the following introduction:

Here we go – from douches to Nadia Lim – Nadia Lim is one of the nicest people in the world so her newest cookbook must be just as nice, right?

[3]  The episode was broadcast at 6am on 16 October 2019 on Three. As part of our consideration of this complaint, we have watched a recording of relevant excerpts of the broadcast and read the correspondence listed in the Appendix.

The complaint and the broadcaster’s response

[4]  Carl Gale complained that the broadcast breached the good taste and decency standard (Standard 1) of the Free-to-Air Television Code of Broadcasting Practice. He identified the time of broadcast as 6am, and the following content as breaching the standard:

The person interviewed, Hannah Tamaki, within a few moments of the conclusion to the interview was referred to as a ‘douche’. …That is not an acceptable way to refer to a woman.

[5]  MediaWorks did not accept the complaint in the first instance on the basis it could not locate the material described in the complaint:

We did not find any point in the broadcast where Hannah Tamaki was referred to as a ‘douche’, whether after her live interview or around news updates throughout the broadcast where clips from the interview were used. As we have been unable to locate the material you described, we are unable to accept your complaint for formal consideration.

[6]  In his referral to the Authority, Mr Gale specified further which part of the broadcast he was referring to:

Hannah Tamaki was interviewed. At the conclusion of the interview there was a reference to the next person to be interviewed… A comment was made that clearly referred to the previously interviewed person (Hannah). The comment was that this person was a douche.

[7]  In response to Mr Gale’s referral, MediaWorks advised the Authority that it was able to locate the ‘douche’ reference but that ‘it was not where the complainant said it was, and it did not refer to Mrs Tamaki.’ For that reason, MediaWorks argued that there were no grounds for the Authority to accept the complaint.  

Our findings

Jurisdiction

[8]  The first question we considered was whether Mr Gale’s complaint sufficiently triggered the complaints process under the Broadcasting Act 1989 and the Authority’s jurisdiction.

[9]  We acknowledge that a degree of specificity is required to enable broadcasters to identify broadcast content in relation to a complaint, particularly in this case where the broadcast was three hours in length. However, while Mr Gale did not state the exact time of the comment he was complaining about, he did describe the context and that it followed the interview with Mrs Tamaki. Following Mr Gale’s referral to the Authority, MediaWorks has been able to locate the content he described. Accordingly, we concluded that Mr Gale’s complaint identified content sufficiently to trigger the broadcasting standards complaints process and that we now have jurisdiction to consider his complaint.

[10]  Whether or not the comment actually referred to Mrs Tamaki is a matter of interpretation and assessing the content against the standards raised, rather than a reason to automatically reject the complaint.¹ We suggest that in this type of scenario, where the broadcaster is unclear as to the content being complained about, there is an opportunity to invite the complainant to provide further detail or to clarify where in the broadcast the content occurred, rather than rejecting the complaint outright.

Good taste and decency

[11]  In these circumstances, as the complainant was dissatisfied with the broadcaster’s response, we proceeded to consider the substance of the complaint, that the use of the word ‘douche’ in this broadcast breached the good taste and decency standard. We gave the broadcaster an opportunity to make submissions on this point, given it had not previously commented in detail on the substance of the complaint (only whether the complaint should be accepted and considered by the Authority). MediaWorks’ position was that:

The reference to ‘douches’ later in the show was a reference to Donald Trump, who had previously been described that way. It was not intended as a reference to Hannah Tamaki and the Standards Committee is satisfied that it would not have been widely understood as a reference to Hannah Tamaki. We are also satisfied that the use of the word ‘douche’ does not breach current norms of good taste and decency. 

[12]  The starting point for us when we consider any complaint is to recognise the importance of the right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified. For the reasons that follow, we did not find actual or potential harm in this case which warrants regulatory intervention or limiting the right to freedom of expression.

[13]   In assessing the potential harm, we have considered:

• the objectives of the nominated broadcasting standard and the harm it is designed to protect against
• the particular context in which the word was used in the broadcast
• the level of offensiveness of the word itself
• the wider context of the broadcast.

[14]  The good taste and decency standard (Standard 1), states that current norms of good taste and decency should be maintained, consistent with the context of the programme. The Authority may consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause widespread undue offence or distress.²

[15]  Turning to the particular material complained about in this case, on viewing the broadcast, we noted that the first use of the word was in the context of Mr Garner reading out ‘Lauren’s’ audience feedback, in which Lauren stated, ‘Trump’s a douche’. We acknowledge the feedback also considered that Mrs Tamaki is ‘on the same page as Trump’ but we do not think it was clear or explicit that Mrs Tamaki was also being labelled a ‘douche’.

[16]  Similarly, in the second instance of the word, it was not clear that Mr Garner’s comment, ‘from douches to Nadia Lim’, was intended to refer to Mrs Tamaki. However, we acknowledge that this was open to interpretation; the complainant has understood the comment to be referring to Mrs Tamaki, while the broadcaster was clear in its belief it did not refer to Mrs Tamaki.

[17]  We also considered the level of offensiveness of the word itself. We noted that:

• There are a number of meanings that may be attached to the word ‘douche’. In common contemporary usage, ‘douche’ is also understood to be a slang term used to describe ‘an obnoxious or contemptible person (typically used of a man)’.³
• The word ‘douche’ was not tested in our 2018 Language That May Offend in Broadcasting research.⁴ However, the term was not raised by any respondents to the survey when asked if there were other offensive words that should be tested, including in relation to examples of potentially offensive gendered language.⁵
• Notwithstanding this, we consider it would be towards the lower end of the scale of offensiveness (particularly in comparison to many of the other words and phrases considered in our research).⁶

[18]  Finally, we had to regard the relevant wider contextual considerations in terms of this broadcast, including:

• The AM Show is an unclassified news and current affairs programme screened each weekday morning from 6am-9am on Three (as well as on radio).
• The AM Show has an adult target audience, although children may be part of the audience at this time, before school.
• There are established audience expectations of the programme format and the hosts, including that it will feature a level of banter, informal commentary and joking, and voicing of opinions among Duncan Garner and his co-hosts.
• In the context of a three-hour broadcast, the two instances of the word complained about were fleeting.

[19]  Taking all of these considerations together, we concluded that the use of the word complained about did not threaten community standards of good taste and decency and the standard was not breached.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair
7 April 2020

Appendix

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

1  Mr Gale’s complaint to MediaWorks – 2 November 2019

2  MediaWorks’ response to the complaint – 28 November 2019

3  Mr Gale’s referral to the Authority – 2 December 2019

4  MediaWorks’ response to the referral including submission of no grounds to accept the complaint – 5 December 2019

5  MediaWorks’ submissions on good taste and decency – 31 March 2020

¹ We note in this respect that the Authority has previously considered a complaint in which the complainant was mistaken as to the content of a promo broadcast by MediaWorks. In that case MediaWorks nevertheless responded to the complaint and assessed the content against the broadcasting standards nominated. The Authority also proceeded to determine the substance of the complaint. See Haverland and MediaWorks TV Ltd, Decision No. 2018-070
² Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
³ <lexico.com/definition/douche>
⁴ Language That May Offend in Broadcasting, Broadcasting Standards Authority, June 2018
⁵ As above, page 10
⁶ As above, page 4