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 about a ‘crude’ and ‘insulting’ remark made on Heather du Plessis-Allan Drive. The host asked whether Dr Ashley Bloomfield’s ‘sphincter just [tightened]’ to indicate her belief that Dr Bloomfield might be concerned about the results of the Royal Commission of Inquiry into COVID-19 Lessons Learned. The Authority found the host’s comment was unlikely to disproportionately offend or disturb the audience. The threshold for finding a breach of the fairness standard is higher in relation to public figures, and the remark did not meet this threshold. The remaining standards did not apply.

Not Upheld: Offensive and Disturbing Content, Fairness, Discrimination and Denigration, Balance

The broadcast

[1]  During a segment on Newstalk ZB’s Heather du Plessis-Allan Drive, broadcast at 4:24pm on 25 June 2024, host Heather du Plessis-Allan read out a listener’s message. It noted a documentary about Jacinda Ardern will be released before the results of the Royal Commission of Inquiry into COVID-19 Lessons Learned (the Inquiry), but the documentary and the results of the Inquiry ‘definitely both won’t look the same’.

[2]  The host agreed and said, although the documentary would be influential, the results of the Inquiry would likely be more influential in New Zealand. She noted the Inquiry’s final report will be released in 2026 - a general election year - and said the Labour Party are ‘not going to be able to have Chris Hipkins as [their] leader’ because he would ‘get trashed in [the Inquiry’s report]’. du Plessis-Allan then stated, ‘How do you think it feels to be Ashley Bloomfield right now? Is he - did his sphincter just tighten today? Because it should’ve.’

The complaint

[3]  Anthony Grant complained the broadcast breached the offensive and disturbing content, discrimination and denigration, balance, and fairness standards of the Code of Broadcasting Standards in New Zealand. The complainant considered the host’s comment about Dr Bloomfield, ‘a New Zealand health professional,’ to be ‘crude’, ‘unwarranted’, and ‘insulting’. 

The broadcaster’s response

[4]  NZME did not uphold the complaint for the following reasons:

Offensive and Disturbing Content

• ‘Newstalk ZB is a radio station focussed on news and talkback programming and is targeted at adults aged 40 to 59 years old.’
• Heather du Plessis-Allan Drive is a live show that broadcasts news and the host’s opinions on current events.
• Listeners of Newstalk ZB would expect to hear controversial opinions.
• ‘While the host’s comments were not to everyone’s tastes’, context meant the remark did not seriously violate community standards of taste and decency and was unlikely to cause widespread disproportionate offence and distress.

Discrimination and Denigration

• The broadcaster did not consider ‘any adverse opinion was expressed’ towards a relevant section of the community.
• The complainant did not state which section(s) of the community they believed the broadcast encouraged discrimination against or denigration of.
• The discrimination and denigration standard does not apply to individuals, organisations, and non-homogenous groups.

Balance

• ‘We acknowledge that Heather du Plessis-Allan Drive is a programme focused on news and current affairs, and that the Royal Commission of Inquiry into lessons learned from New Zealand’s Covid-19 response is a controversial issue of public importance.’
• However, the host’s brief comments on the COVID-19 Inquiry did not amount to a ‘discussion’.
• Also, the specific comment complained about did not concern a controversial issue of public importance.

Fairness

• Dr Ashley Bloomfield is a public figure with considerable media experience.
• There is a higher threshold for finding unfairness to public figures, and the comments made about Dr Bloomfield did not meet this threshold. 
• ‘For completeness, we also do not consider that the other individuals and organisations mentioned by the host during this broadcast segment (Jacinda Ardern, Chris Hipkins, the Labour Party and Tony Blakely) were treated unfairly.’

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, the wider context of the broadcast, and information given by the broadcaster to enable the audience to exercise choice and control over their viewing or listening.

[6]  The fairness standard³ protects the dignity and reputation of those featured in programmes.⁴ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

[7]  We consider the offensive and disturbing content and fairness standards best address the complainant’s concerns. However, the remaining standards are dealt with briefly at paragraphs [14] and [15].

Our analysis

[8]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[9]  As a starting point, we considered the right to freedom of expression. The Authority’s role is to weigh the right to freedom of expression against any actual or potential harm caused by the broadcast. We may only intervene and uphold a complaint when limiting the right to freedom of expression is demonstrably justified in a free and democratic society.⁵

Offensive and Disturbing Content

[10]  We acknowledge and appreciate the complainant found du Plessis-Allan’s comment offensive, rude, and disrespectful, and that other listeners may have as well. However, we do not consider the broadcast would have disproportionately offended or distressed its audience, nor seriously violated community standards of taste and decency. Relevant contextual factors supporting our view are:

• Heather du Plessis-Allan Drive is a live radio show centred on news and the host’s opinions on current affairs.⁶
• Heather du Plessis-Allan Drive airs on Newstalk ZB, a station with an adult target audience.
• Audiences of Newstalk ZB expect to be exposed to controversial or unpopular points of view.
• du Plessis-Allan herself is known for holding strong, provocative opinions, and is described as “assertive, direct and opinionated” with a “straight down the middle approach”.⁷

Fairness

[11]  Individuals and organisations taking part or referred to in a broadcast have the right to expect they will be dealt with justly and fairly and protected from unwarranted damage.⁸ An assessment of what is fair considers factors such as:

• the nature of the programme
• the nature of the individual or organisation referred to
• whether the programme would have left the audience with an unfairly negative impression of the individual or organisation
• the public significance of the broadcast and its value in terms of free speech
• the target and likely audience, and audience expectations.⁹

[12]  As outlined in our guidance on Complaints that are Unlikely to Succeed, the threshold for finding a breach under this standard is higher for public figures than laypeople.¹⁰

[13]  We are satisfied du Plessis-Allan’s comment did not amount to unfair treatment of Dr Bloomfield justifying regulatory intervention. In addition to the contextual factors considered above, the remark would not have left viewers with an unduly negative impression of Dr Bloomfield. We therefore do not uphold the complaint under the fairness standard.

Remaining standards

Discrimination and Denigration

[14]  The discrimination and denigration standard protects particular sections of the community defined by reference to the group’s shared sex, sexual orientation, race, age, disability, occupational status or legitimate expression of religion, culture or political belief. This standard does not apply to individuals, such as Dr Bloomfield.¹¹ Non-homogenous groups such as health professionals are also not protected by this standard.¹²

Balance

[15]  The balance standard¹³ ensures competing viewpoints about significant issues are presented.¹⁴ It only applies to news, current affairs and factual programmes which discuss a controversial issue of public importance.¹⁵

[16]  While the Inquiry may constitute a controversial issue of public importance, the brief comments did not constitute a ‘discussion’ of that issue as contemplated under the balance standard. The complaint also focused on the offensiveness of the relevant comment rather than concerns about omitted perspectives on an issue.

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

Signed for and on behalf of the Authority

Susie Staley
Chair
24 October 2024    

Appendix

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

1   Anthony Grant's original complaint and further correspondence - 25 June 2024

2  NZME's decision on the complaint - 24 July 2024

3  Grant's referral to the Authority - 24 July 2024

4  NZME confirming no further comments - 6 August 2024

¹ Standard 1, Code of Broadcasting Standards in New Zealand 
² Commentary, Standard 1, Code of Broadcasting Standards in New Zealand, page 8
³ Standard 8, Code of Broadcasting Standards in New Zealand
⁴ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand, page 20
⁵ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁶ See, for example, Tamihere and NZME Radio Ltd, Decision No. 2022-095
⁷ For example, Newton-Wade & Nick Wilson and NZME Radio Ltd, Decision 2022-116; Newstalk ZB “Heather du Plessis-Allan Drive” (accessed 3 September 2024) <newstalkzb.co.nz>
⁸ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand, page 20
⁹ Guideline 8.1
¹⁰ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints that are unlikely to succeed” <bsa.govt.nz>
¹¹ Commentary, Standard 4, Code of Broadcasting Standards in New Zealand, page 12
¹² Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints that are unlikely to succeed” <bsa.govt.nz>
¹³ Standard 5, Code of Broadcasting Standards in New Zealand
¹⁴ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand, page 14
¹⁵ Guideline 5.1