BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

In an episode of Rugby Nation, commentator Tony Johnson made a reference to Israel Folau using the phrase ‘the F word’. The Authority has not upheld a complaint that this breached the discrimination and denigration standard. The complainant argued that the broadcast was harmful to Mr and Mrs Folau. However, as two individuals they are not a recognised section of the community as required by the standard. The discrimination and denigration standard therefore did not apply. The Authority declined to imply the good taste and decency or fairness standards into the complaint on the basis that the original complaint did not raise arguments consistent with an alleged breach of those standards.

Not Upheld: Discrimination and Denigration

The broadcast

[1]  Rugby Nation is a rugby highlight programme hosted by Tony Johnson, shown on Prime TV by Sky Network Television Ltd (SKY).

[2]  The relevant item was a commentary on a Wallabies game. Mr Johnson made a reference to Israel Folau when discussing Kurtley Beale as follows:

And his [Kurtley Beale’s] work under the high ball… well, had a few people talking about the F word, as in Folau, remember him?

[3]  The episode was broadcast on Prime TV on 18 August 2019 at 4:30pm. We have watched a recording of the broadcast and have read all documents referred to in the Appendix.

The complaint

[4]  Carl Gale complained that Mr Johnson’s comment ‘the F word, as in Folau’ breached the discrimination and denigration standard as set out in the Free-To-Air Television Code of Broadcasting Practice.²

[5]  Mr Gale stated that Mr Johnson had misused privilege afforded to him as a commentator to ‘weigh in’ on the ‘difficult situation’ that Israel and Maria Folau are in. In his referral to the BSA, he added that ‘to describe them as f’s is abhorrent and will surely alienate the very many viewers who admire them both.’

[6]  In his referral to the Authority, Mr Gale sought to also raise his complaint under the good taste and decency, and fairness standards. He stated that technical issues with a link on the broadcaster’s website stopped him from accessing available guidance regarding the most relevant standards.

[7]  Pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider his complaint under the standard(s) raised in the original complaint to the broadcaster. The High Court has clarified that in certain circumstances:²

…it is permissible [for the Authority] to fill gaps… or cross boundaries between Code standards…but only if these things can be done within the wording, reasonably interpreted, of the original complaint, and if a proper consideration of the complaint makes that approach reasonably necessary…

[8]  Accordingly, we considered whether the additional standards raised by Mr Gale in his referral to us could be reasonably implied into the original complaint. We have determined that the additional standards could not be reasonably implied into the wording of Mr Gale’s original complaint. The original complaint did not raise arguments consistent with an alleged breach of the good taste and decency or fairness standards and were in our view clearly directed at concerns about the denigrating nature of the comments made in the item.

[9]  For that reason, we have considered Mr Gale’s complaint under the discrimination and denigration standard only.

The broadcaster’s response

[10]  In response to the complaint SKY submitted:

• Mr Johnson’s reference to the F word was to ‘light heartedly imply that Folau was not a word to be mentioned at the time, in the same way it is not polite to use the F word in public. It was not to describe the couple.’
• The nature of the comment and the light-hearted intent of the presenter did not reach the necessary threshold for a breach of the standard.
• Sky acknowledged that the broadcast caused Mr Gale offence and apologised to Mr Gale.

The standards

[11]  The discrimination and denigration standard (Standard 6) protects against broadcasts that encourage discrimination 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

[12]  The right to freedom of expression, is an important right in maintaining a healthy democracy. It however is not an absolute right and may be limited where the exercise of the right has or may cause harm. When considering complaints, we aim to strike a balance between the exercise of the right and the avoidance of harm. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.

[13]  The first question is whether the discrimination and denigration standard applies to the issue raised by Mr Gale. In our view, it does not. The standard only applies to statements made about recognised sections of the community which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.  It does not apply to individuals or organisations (which are dealt with under the fairness standard).3  

[14]  As Mr and Mrs Folau are individuals, the standard therefore does not apply and the complaint is not upheld.

[15]  We note that, in any event, SKY has apologised to Mr Gale for any offence caused.

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

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

26 May 2020

 
Appendix

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

1.  Carl Gale’s complaint to SKY – 21 August 2019

2.  SKY’s decision – 24 September 2019

3.  Mr Gale’s referral to the Authority – 1 October 2019

4.  SKY acknowledging referral and querying standard raised – 4 October 2019

5.  Mr Gale’s emails explaining issue with SKY website – 4 and 5 October 2019

6.  Mr Gale confirming standard – 7 October 2019

7.  Confirmation of standard to SKY – 7 October 2019

8.  SKY’s response to referral – 18 October 2019

9.  Mr Gale’s response to decision – 4 February 2020

10.  Mr Gale explaining issues – 17 February 2020

11.  SKY to BSA re decision recall – 20 February 2020

12.  SKY’s submissions on implied standards – 27 March 2020

13.  Mr Gale’s response to SKY’s submissions – 14 April 2020

¹ The Free-to-Air Television Code of Broadcasting Practice was refreshed with effect from 1 May 2020. This complaint has been determined under the April 2016 version of the Free-to-Air Television Code of Broadcasting Practice as the relevant broadcast pre-dated the 1 May 2020 version.
² See Attorney General of Samoa v TVWorks Limited, CIV-2011-485-1110 at [62]
³  Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, Page 15