BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has not upheld a complaint an item on Newshub Live at 6pm breached the discrimination and denigration standard in its discussion of the social media and wider impact of the Johnny Depp-Amber Heard defamation trial. The Authority noted the issue of the genders of victims and perpetrators of domestic violence was not the focus of the broadcast, and it did not reach the high threshold of condemnation necessary to find a breach of the standard.

Not Upheld: Discrimination and Denigration

The broadcast

[1]  An item on Newshub Live at 6pm, broadcast on 29 May 2022, focused on the social media response to the Johnny Depp and Amber Heard trial and its implications for the #MeToo movement.

[2]  The item was introduced as follows:

The trial has offered up plenty of drama, twists and turns and even more Tik-Toks and memes. National correspondent Amanda Gillies looks at whether the social media circus has trivialised the very serious issue of domestic abuse.

[3]  Gillies interviewed Shine spokesperson Rachel Kain and Newshub Digital Editor Mark Longley. Kain discussed how the social media response might discourage victims of abuse from speaking up, saying ‘believing women who disclose violence is one of the most important things that we can do. It's not up to us to be the judge and jury, but it is up to us to make sure that we can support people to find help.’ Longley, whose daughter was murdered by her partner, drew comparisons between Depp’s text messages and those sent by his daughter’s murderer. Longley also commented on the media’s response to the Depp v Heard trial:

Longley:                   We've still got a woman complaining about the abuse a man has given her and she's getting played out like this. You know in what is just a huge circus. And I think that's just going to set the whole trust that women have in the legal system back. 

…

Gillies:                      Overall, how do you think the media has dealt with this trial?

Longley:                   I think poorly. And I've always thought it's been poorly handled because we have somehow tried to excuse the violent behaviour. The narrative that somehow Amber Heard brought this on herself has been present throughout all of these stories. 

…

I think this is almost like the male establishment's revenge on Me Too, the fact we're defending this man for some clearly abusive behaviour. 

The complaint

[4]  Brent Gebbie complained this broadcast breached the discrimination and denigration standard, stating:

• The report was sexist and one-sided.
• The trial showed Amber Heard as being violent and playing a bigger role in their relationship’s violence. Ignoring this trivialised abuse suffered when the victim is not female and made out that her behaviour was acceptable and allowed.
• Heard inflicted serious injuries on Depp and yet the report only mentioned abuse by Depp.

The broadcaster’s response

[5]  Discovery NZ Ltd did not uphold the complaint on the following grounds:

• ‘The Depp v Heard trial has been extensively reported internationally and in the Committee's view, it was not necessary to outline all of the details of the case when considering the specific issue this Broadcast focussed on.’
• ‘The Broadcast did not purport to be a discussion about the gender of perpetrators and victims of domestic violence, it was framed as looking at the wider issue of domestic violence being trivialised on social media and the potential impact of that on victims being believed about their abuse claims.’
• ‘In the Committee's view, the Broadcast contained no invective towards men as a section of the community such that it could be said to have encouraged the denigration of, or discrimination against, all men.’

Jurisdiction – scope of complaint

[6]  Upon referral to the Authority, the complainant sought to also raise the good taste and decency, programme information, balance and fairness standards.

[7]  Under section 8(1B) of the Broadcasting Act 1989, the Authority is only able to consider complaints under the standard(s) raised in the original complaint to the broadcaster. However, in limited circumstances, the Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording, and where it is reasonably necessary in order to properly consider the complaint.¹

[8]  In our view the language in the original complaint (paragraph [4]) was focused on the discrimination and denigration standard, and we cannot reasonably imply the additional standards. As such, our decision is limited to discrimination and denigration which we consider adequately captures the key concerns raised.

[9]  In any event, Johnny Depp and Amber Heard are public figures, so the threshold for finding a breach of the fairness standard is higher,² and the Depp v Heard trial has been covered extensively in international media. 

The standard

[10]  The discrimination and denigration standard³ protects against broadcasts which encourage the denigration of, or discrimination against, 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. It protects sections of the community from verbal and other attacks, and fosters a community commitment to equality.

[11]  ‘Denigration’ is defined as devaluing the reputation of a particular section of the community. ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment.⁴ 

Our analysis

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

[13]  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 reasonable and justified.⁵

[14]  Where discrimination and denigration complaints are concerned, the importance of freedom of expression means a high level of condemnation, often with an element of malice or nastiness, will usually be necessary to find a breach of the standard.⁶

[15]  The standard only applies to recognised ‘sections of the community,’ which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.⁷ This complaint concerns the minimisation of domestic abuse towards men. We are satisfied that men constitute a recognised section of the community for the purposes of this standard.

[16]  The complainant was concerned the item ‘made it appear…that domestic violence by a female is acceptable and allowed’. We acknowledge the item discussed the alleged abuse of Heard by Depp and did not discuss allegations of violence towards Depp.

[17]  However, the item was focused on the way the case was presented on social media, and how this might impact victims of abuse. This was clearly signalled in the introduction to the item, asking ‘whether the social media circus has trivialised the very serious issue of domestic abuse’. The interviewees in the item were focused specifically on the impact of the media coverage on victims. In the context of this broadcast, we find the discussion did not reach the high threshold for finding a breach of the standard. We consider the following contextual factors to also be relevant:⁸

• At the time of the broadcast the trial had not yet concluded, so the truth of the allegations by each side had not been determined, although a UK court had previously found Heard’s account credible and Depp lost a defamation case against the Sun.⁹
• The broadcast did not purport to examine the gender of victims and perpetrators of domestic violence.
• There was significant coverage in media of the trial’s details¹⁰ and wider issues it involved.¹¹

[18]  Taking into account the factors above, we do not consider the broadcast was likely to ‘encourage’ discrimination or denigration as contemplated under the standard. The broadcast was not focused on domestic violence against men and did not contain the high level of condemnation necessary to find a breach of the standard.

[19]  While we appreciate the complainant’s concerns, we consider any restriction on the right to freedom of expression would be unjustified in this instance.

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

Susie Staley
Chair
23 August 2022

Appendix

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

1  Brent Gebbie’s formal complaint to Discovery – 29 May 2022

2  Discovery’s response to complaint – 23 June 2022

3  Gebbie’s referral to the Authority – 1 July 2022

4  Discovery’s confirmation of no further comments – 4 July 2022

¹ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
² Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
³ Standard 6 of the Free-to-Air Television Code of Broadcasting Practice
⁴ Guideline 6a
⁵ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁶ Guideline 6b
⁷ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁸ Guideline 6d
⁹ “Johnny Depp loses libel case over Sun 'wife beater' claim” BBC (online ed, 2 November 2020)
¹⁰ “Depp-Heard trial live updates: Jury deliberations begin” NBC News (online ed, 28 May 2022); William Hewett, Daniel Rutledge “As it happened: Johnny Depp wins US defamation case against ex-wife Amber Heard” Newshub (online ed, 2 June 2022)
¹¹ Moira Donegan “The Amber Heard-Johnny Depp trial was an orgy of misogyny” The Guardian (online ed, 1 June 2022); “Experts worry about impact of Johnny Depp and Amber Heard trial on victims of domestic abuse” CBS Los Angeles (online ed, 1 June 2022); Jessica Winter “The Johnny Depp–Amber Heard Verdict Is Chilling” The New Yorker (online ed, 2 June 2022)