BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has not upheld four complaints about a segment on The AM Show, which featured host Duncan Garner criticising parents who do not vaccinate their children, using terms such as ‘murderers’ and ‘bloody idiots’, and stating they should be ‘stripped of their right to spread their message and their viruses’. The Authority found that, taking into account audience expectations of Mr Garner and The AM Show, alongside other contextual factors, Mr Garner’s comments did not breach broadcasting standards. With regard to the balance standard, the Authority found that, while the anti-vaccination movement was a controversial issue of public importance, Mr Garner’s comments did not amount to a ‘discussion’ for the purposes of the standard, but reflected his own personal views on the issue. The Authority acknowledged that Mr Garner’s comments may have caused offence to some viewers but overall the harm alleged did not reach the threshold requiring a limitation on the broadcaster’s right to freedom of expression.

Not Upheld: Good Taste and Decency, Discrimination and Denigration, Balance, Children’s Interests, Violence, Law and Order

The broadcast

[1]  Following an outbreak of measles in Christchurch, The AM Show’s host Duncan Garner delivered an editorial segment in which he criticised parents who do not vaccinate their children, using terms such as ‘murderers’ and ‘bloody idiots’.

[2]  During the segment, Mr Garner also said:

…this group [people who do not vaccinate their children] is so dangerous they should come with a health warning and be stripped of their right to spread their message and their viruses…

…I say if you don’t vaccinate you don’t get access to the welfare system. If you don’t vaccinate you get fined. If you don’t vaccinate your child then they should be kept away from schools, early childhood centres, we see this around the world now and there will be exemptions of course, but please let the doctors tell us what they are.

[3]  The segment was broadcast on 13 March 2019 on Three.

[4]  Some of the complainants also raised concerns about an online article that featured Mr Garner’s comments from The AM Show broadcast. However, the Authority does not have jurisdiction over online articles, therefore our consideration is limited to the broadcast material.

[5]  As part of our consideration of these complaints, we have viewed a recording of the broadcast and read the correspondence listed in the Appendix.

The complaints

[6]  Nigel Gray submitted the broadcast breached the good taste and decency, children’s interests, law and order and discrimination and denigration standards of the Free-to-Air Television Code of Broadcasting Practice for the following reasons:

Good Taste and Decency

• The use of the word ‘murderer’ as an accusation was ‘offensive, as murder is a crime.’
• Most offensive language is metaphorical. However, in this case it was not clear that the term ‘murderer’ was used metaphorically, since the subject was vaccinations and the argument that vaccines protect life. Therefore it could be construed that the accusation was a genuine allegation that ‘anti-vax’ people (itself a derogatory description of New Zealand citizens who do not support the idea of vaccination) are, by not vaccinating in some way, murdering their children or others.
• The number of people opposed to vaccination in New Zealand does not represent a ‘small section’ of the audience. The number of complaints received by MediaWorks was evidence of this.
• Additionally, MediaWorks has published a number of online articles about ‘anti-vax’ people, therefore there is a sufficient amount of people to make this ‘a newsworthy subject.’

Children’s Interests

• Mr Garner’s use of the term ‘murderers’ set a bad example for children and could easily provoke violence against New Zealanders in the context it was used.
• Children were likely to see the broadcast online where it was also available.

Law and Order

• Labelling people who are against vaccination ‘murderers’ could encourage violence or anti-social activity. For example, many New Zealanders have developed fear and prejudice against particular cultures based only on news reports they have seen but with no real knowledge of the group or culture featured in those reports.

Discrimination and Denigration

• ‘To call New Zealand citizens who object to the use of harmful vaccines “murderers” is very much hate speech.’ It is ‘extremist language and blatantly and clearly not true.’
• This standard applies where there is ‘discrimination against, or denigration of, any section of the community… or as a consequence of legitimate expression of… culture or political belief.’ This description includes people who are against vaccination.

[7]  Malcolm Scott submitted the broadcast breached the discrimination and denigration standard of the Free-to-Air Television Code of Broadcasting Practice for the following reasons:

• Mr Garner characterised tens of thousands of New Zealand parents as ‘murderers’, and characterised all parents that do not vaccinate as ‘anti-vax’.
• Mr Garner made a number of comments about people who refuse to vaccinate that breached the standard including:
  • ‘you're a bloody idiot. A selfish idiot’
  • ‘cowardly’
  • ‘anti-vaxxers are the true virus or germ that must be put back in the bottle’
  • ‘see how much they care for your child or you – zip, zero – murderers’
  • ‘and be stripped of the right to spread their message’
  • ‘and their viruses’
  • ‘hang with these Neanderthals and you might just die early’
  • ‘if you don't vaccinate your child, they should be kept away from schools, early childhood centres’
  • ‘my message is really aimed at the truly delusional flakes.’
• Parents that choose not to vaccinate may be doing so as a legitimate expression of religion, culture or political belief. Mr Garner clearly identified people that do not vaccinate their children as a section of the community.
• MediaWorks are using their interpretation of what defines 'a section of the community' to avoid accepting responsibility for Mr Garner’s ‘extreme use of denigrating language.’
• ‘Childhood vaccination is not mandatory in New Zealand, no “medically supported reason” is needed or required. Parents are entitled to exercise parental choice, and choosing to not vaccinate does not mean that they are “Anti-vaxxer”.’

[8]  Amanda Vickers submitted the broadcast breached the good taste and decency, discrimination and denigration and balance standards of the Free-to-Air Television Code of Broadcasting Practice for the following reasons:

Good Taste and Decency

• Mr Garner used a number of offensive terms including ‘murderers’, ‘bloody idiots’, ‘true viruses’, ‘Neanderthals’ and ‘delusional flakes’ to refer to people who do not vaccinate their children.
• Mr Garner’s comments were a ‘hate-speech piece’. They had the potential to cause widespread offence among the significant number of viewers who belong to this ‘minority group’ or who believe in ‘informed consent or the UN Declaration of Human Rights’. This was no different to hate speech towards any other group.
• Just because the comments reflected Mr Garner’s opinion, it did not necessarily follow that the comments were not offensive or an expression of hatred towards a minority. The broadcast contained ‘intolerance, hatred, extreme name-calling’ and took advantage of the right to express an opinion, given Mr Garner’s ‘privilege of having the ear of the nation.'
• Mr Garner made a ‘genuine allegation of criminal behaviour’ that incited and encouraged hatred.

Discrimination and Denigration 

• MediaWorks said that a small group with an ‘unconventional position (but legal, informed choice)’ in the community cannot be classed as a ‘segment of the community’, therefore MediaWorks can denigrate and discriminate against them.
• Expression of opinion does not warrant the use of hate speech, discriminatory or denigratory content. ‘Claiming persecution of a group based on opinion is not what freedom of speech is for.’

Balance

• Effort should have been made to address counter arguments, including highlighting that the law for vaccination allows free choice and focusses on informed consent.

[9]        Hetty Vink submitted the broadcast breached the good taste and decency, violence, law and order and discrimination and denigration standards of the Free-to-Air Television Code of Broadcasting Practice for the following reasons:

Good Taste and Decency

• Mr Garner’s comments amounted to hate speech, intended on promoting aggression and excluding a section of society.

Violence

• Mr Garner’s comments, particularly his use of the term ‘murderers’, were aggressive and encouraged treating others with contempt, name calling, serious anti-social behaviour and violence.
• Mr Garner’s comments were intended to divide the community and incite aggressive behaviour towards certain people.

Law and Order

• When you encourage your audience to take matters in their own hands, like Mr Garner did, you are promoting criminal and serious anti-social activity and it is an abuse of public broadcasting.

Discrimination and Denigration

• Calling people who object to the use of vaccines ‘murderers’ is hate speech.
• Mr Garner’s comments promoted the exclusion of certain parents, caregivers and children from society.
• It is hate speech when you declare that certain people ‘are not recognised as part of the community’ and therefore that hate speech and exclusion of such people is acceptable.
• Mr Garner’s comments could result in Ms Vink ‘seriously being targeted with severe unpleasantness in my school, kindergarten, social services or work place.’

The broadcaster’s response

[10]  MediaWorks submitted that the broadcast did not breach any of the standards raised by the complainants for the following reasons:

Good Taste and Decency 

• The following contextual factors were relevant:
  • The broadcast did not contain offensive language, nudity, sexual material or violence.
  • Duncan Garner’s irreverent, forthright and occasionally provocative style is a feature of his broadcasting and familiar to regular viewers of The AM Show.
  • The comments were clearly identifiable as Mr Garner’s opinion.
  • Mr Garner’s criticism of parents who choose not to vaccinate their children excluded those who do so for ‘medically supported’ reasons.
  • The term ‘murderers’ was used metaphorically to emphasise Mr Garner’s position that non-vaccination poses serious community health risks. It was not a genuine allegation of criminal behaviour.
• MediaWorks apologised for the offence the broadcast caused, but found that it was unlikely Mr Garner’s comments would have caused widespread undue offence or distress to The AM Show’s target and likely audience.
• The Authority has recognised that the ‘feelings of the particularly sensitive cannot be allowed to dictate what can be broadcast’.¹
• A significant proportion of complaints received about this broadcast appear to have been motivated by a social media campaign propagated among members of the anti-vaccination community, rather than from people who viewed the live broadcast. This supports the conclusion that any offence caused by the broadcast was likely to have been limited to a small, ‘particularly sensitive’, section of the community who may not be regular viewers of The AM Show.

Children’s Interests

• The following contextual factors were relevant:
  • The broadcast was unlikely to have had a significant child audience.
  • Given the understanding that news and current affairs programming often deals with disturbing or alarming material, it is expected that child viewers of such programmes will be subject to parental supervision.
  • The broadcast did not contain material that was unacceptably challenging for children to view with parental supervision.

Violence

• The broadcast did not contain any portrayal of violence.

Law and Order

• The broadcast did not contain material that encouraged the audience to break the law or that promoted criminal or serious anti-social activity.

Discrimination and Denigration 

• Parents and caregivers who choose not to vaccinate their children are not recognised as a ‘section of the community’.
• This standard is not intended to prevent the expression of opinion.
• Balance
• The segment was clearly signalled as an expression of Mr Garner’s opinion (such segments are a regular feature of The AM Show).
• The broadcast did not purport to be a balanced discussion of the vaccination issue referred to by Mr Garner.
• Opposition to vaccination is an ongoing and prominent social and community health issue. Therefore, it is reasonable to expect that viewers of The AM Show would have a reasonable understanding of the main perspectives that exist in relation to this issue.

The relevant standards

[11]  The good taste and decency standard states that current norms of good taste and decency should be maintained, consistent with the context of the programme. The Authority will 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

[12]  The discrimination and denigration standard 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.

[13]  The balance standard states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[14]  The children’s interests standard states that broadcasters should ensure children can be protected from broadcasts which might adversely affect them. Material likely to be considered under this standard includes violent content or themes, offensive language, social or domestic friction and dangerous, antisocial or illegal behaviour where such material is outside the expectations of the programme’s classification.³

[15]  The violence standard states that broadcasters should exercise care and discretion when dealing with the issue of violence.

[16]  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 or serious antisocial activity.⁴

Our findings

[17]  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, is the starting point in our consideration of complaints. 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.

[18]  In this case, the harm alleged to have been caused, as a result of Mr Garner’s comments, included:

• widespread offence
• potential discrimination against, denigration of or even the provocation of violence against people who choose not to vaccinate their children
• the public being misled by the absence of any counter arguments to Mr Garner’s perspective.

[19]  For the reasons set out below, we consider Mr Garner’s comments did not breach broadcasting standards. We find that, while Mr Garner’s comments had the potential to offend some viewers, they did not reach a point that justified the limitation of the broadcaster’s right to freedom of expression. In reaching this view we acknowledge the powerful position that hosts of broadcast content may hold. However, the standards exist to provide some limits on the use of that position. In this case, while the comments were strong and forthright, they were clearly signposted as being Mr Garner’s comment and opinion, and for the reasons we set out below we do not consider that the broadcaster exceeded the boundary within which the right to freedom of expression may be exercised.

Good Taste and Decency

[20]  The purpose of this standard is to protect audience members from material likely to cause widespread undue offence or distress or undermine widely shared community standards.⁵ 

[21]  Context will always be relevant when determining a complaint under this standard.⁶  While we find Mr Garner’s comments to be provocative and recognise they may have been potentially offensive or upsetting to some, we find the broadcast did not reach a level that went beyond current norms of good taste and decency. We consider the following contextual factors to be relevant in our assessment of Mr Garner’s comments:

• The AM Show is an unclassified news and current affairs programme and has an adult target audience.
• Audiences expect that Mr Garner will express his opinion, often in a provocative or inflammatory way.⁷
• Audiences also expect that The AM Show will, at times, broadcast controversial content and opinions.
• Despite the inflammatory language, Mr Garner was expressing legitimate concern regarding the dangers of vaccine hesitancy (a danger which is recognised by the World Health Organisation).⁸
• There is a high level of public interest in the measles outbreak and the anti-vaccination movement.⁹
• Mr Garner’s comments were not explicit or graphic.
• Mr Garner’s use of the term ‘murderers’ was provocative, however it did not appear to be a genuine accusation of murder.
• None of the terms used by Mr Garner featured in the top 31 most unacceptable words in broadcasting in our 2018 research.¹⁰

[22]  As discussed above, we note Mr Garner’s comments, particularly his use of the term ‘murderers’, were inflammatory. We have also previously recognised the position of influence that hosts of programmes such as The AM Show have¹¹ and agree that they should treat this role respectfully. However, upon consideration of the contextual factors listed above, we do not consider Mr Garner’s comments reached the threshold for causing widespread undue offence or distress, or undermining widely shared community standards.

[23]  Accordingly we do not uphold the complaints under this standard.

Discrimination and Denigration

[24]  The discrimination and denigration standard states that ‘broadcasters should not encourage discrimination against, or denigration of, any section of the community… as a consequence of legitimate expression of religion, culture or political belief.’ The standard applies only to recognised ‘sections of the community’ which is consistent with the grounds for discrimination listed in section 21 of the Human Rights Act 1993.¹²

[25]  We acknowledge that people who refuse to vaccinate their children do so for a multitude of reasons, some religious, some cultural, some philosophical, some due to scepticism or safety concerns.¹³ Taking into account the wide range of rationales and world views behind people’s decisions with respect to the vaccination of children, we do not consider people who refuse to vaccinate amount to a ‘recognised section of the community’ as intended by the discrimination and denigration standard.¹⁴  

[26]  Some people may choose not to vaccinate as a legitimate expression of their religion, culture or political belief. However, Mr Garner was challenging the practice itself, rather than a particular religion, culture or political belief.

[27]  We also note the standard is not intended to prevent the broadcast of material that is a genuine expression of serious comment or opinion.¹⁵   As we have noted in paragraph [19] above, and discuss further below under the balance standard, Mr Garner made it abundantly clear that the views expressed were his genuine views.

[28]  For the above reasons, we find the discrimination and denigration standard does not apply and we do not uphold the complaints under this standard. 

Balance

[29]  The balance standard only applies to situations where a ‘controversial issue of public importance’ is ‘discussed’ in ‘news, current affairs or factual programmes’.¹⁶ Accordingly, when we consider a balance complaint, the first question is whether the broadcast met those three requirements.

[30]  An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public.¹⁷ A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹⁸

[31]  With regard to the subject matter of the broadcast, the focus of Mr Garner’s statements was on the growing anti-vaccination movement in New Zealand, the perceived dangers it poses to society and how it should be addressed by the government. Considering the media coverage the movement generated in the wake of the recent measles outbreak,¹⁹ we find it is a controversial issue of public importance for the purposes of this standard.

[32]  It is also clear that The AM Show is a news and current affairs programme as contemplated by the standard.

[33]  However, the standard also requires the issue to have been ‘discussed’ in the item complained about.²⁰ We find this broadcast did not amount to a ‘discussion’ for the purposes of this standard. With key statements premised by ‘I think’, ‘I say’ or ‘my message’, it was clearly presented as Mr Garner’s opinion regarding the anti-vaccination movement.

[34]  While The AM Show contains factual information through news reports and interviews, the well-established programme format allows for the hosts and presenters to provide their own opinions on current events. Audiences expect this from the programme and from Mr Garner. Mr Garner’s segment was clearly signalled as being from his own point of view and did not purport to be a balanced examination of the issue. 

[35]  Accordingly, as the broadcast did not contain a discussion of a controversial issue of public importance, the balance standard does not apply and the complaint is not upheld under this standard.

Children’s Interests

[36]  As stated above at [14], the children’s interests standard states that broadcasters should ensure children can be protected from broadcasts which might adversely affect them.

[37]  While the list of material likely to be considered under the children’s interest standard (see above at [14]) is not exhaustive, we do not consider Mr Garner’s comments to have been of such a nature as to justify finding a breach under this standard. The purpose of the children’s interests standard is to enable audiences to protect children from material that unduly disturbs them, is harmful, or is likely to impair their physical, mental or social development.²¹ Mr Garner’s comments, while inflammatory, were not likely to have such serious impacts.

[38]  Context is an important consideration under the children’s interests standard.²² Accordingly, the contextual factors discussed above at [21] are also relevant to our assessment under this standard, particularly the public interest in the broadcast and the fact that The AM Show is an unclassified news and current affairs show and has an adult target audience.

[39]  We have previously acknowledged that children are unlikely to watch unclassified news and current affairs programmes unattended.²³ There is also an expectation that parents and guardians will exercise discretion around viewing news and current affairs programmes with their children. 

[40]  Considering audience expectations of both The AM Show and Mr Garner, we consider parents and caregivers had sufficient information to decide whether the coverage was suitable for children in their care.  Accordingly, in light of the nature of the comments (inflammatory but not likely to unduly disturb) and the expectation surrounding child supervision with respect to broadcasts like The AM Show, we find children were unlikely to be adversely affected by the broadcast.

[41]  We therefore conclude that any potential harm would not be sufficient to justify our intervention on a matter of such public interest and do not uphold the complaint under this standard.

Remaining standards raised

Violence

[42]  The purpose of the violence standard is to protect audiences from unduly disturbing violent content.²⁴ There was no portrayal of violence in this broadcast. While there were some inflammatory comments, when considered alongside the contextual factors discussed above at [21], we do not consider they amounted to ‘unduly disturbing violent content.’²⁵

[43]  While Mr Garner’s comments reflected his concern about the anti-vaccination movement in a provocative way, there is nothing to suggest they were likely to incite or encourage violence and/or encourage brutality.²⁶

Law and Order

[44]  This standard requires broadcasters to observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast. The contextual factors listed above at [21] are accordingly also relevant under this standard (including the public interest in this programme which is a significant factor under the law and order standard).²⁷

[45]  As we have noted above, Mr Garner was expressing his genuine concerns regarding a matter of high public interest. In the course of this, he made provocative statements regarding people who refuse to vaccinate their children and how the Government should treat them.  It is clear that he was promoting and encouraging the practice of vaccination and his concluding statement (regarding who his message was ‘truly aimed at’) suggested his aim was to change the minds of those who do not vaccinate their children.  However, given the context and public interest in his message, we do not consider his comments can be taken as actively promoting serious anti-social or illegal behaviour.²⁸  

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

Signed for and on behalf of the Authority

Judge Bill Hastings
Chair
18 July 2019 

¹ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12

² Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12

³ Guideline 3a

⁴ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15

⁵ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12

⁶ Guideline 1a

⁷ See Reekie and MediaWorks, Decision No. 2018-045 at [12]

⁸ Anti-vaxxers officially one of top 10 threats to global health by World Health Organisation (Health Central NZ, 18 January 2019)

⁹ See: Worries over anti-vaxxers: DHBs say diseases like measles are being seen again as infant immunisation declines (NZ Herald, 6 March 2019); 'Unstable and dangerous': Don't give anti-vaxxers a platform (Stuff, 14 Mach 2019) Unvaccinated Kiwis bearing brunt of measles outbreak (Newshub, 14 May 2019)

¹⁰ Language That May Offend in Broadcasting (Broadcasting Standards Authority, June 2018), pages 6-7

¹¹ See, for example: McCaughan and Television New Zealand Ltd, Decision No. 2017-083 at [39]

¹² Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15

¹³ See: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4869767/

¹⁴ See: Foster and Television New Zealand Ltd, Decision No. 2017-009, where ‘climate sceptics’ are found not to be a ‘recognised section of the community’; Swinney and RadioWorks Ltd, Decision No.2014-021, where it was found ‘people who believe in chemtrails’ are not a recognised section of the community; and June and Free FM, Decision No. 2014-134, where it was found ‘medical professionals’ are not a recognised section of the community.

¹⁵ Guideline 6c

¹⁶ Guideline 8a

¹⁷ Commentary: Balance, Broadcasting Standards in New ZealandCodebook, page 18

¹⁸ As above

¹⁹ See for example: Worries over anti-vaxxers: DHBs say diseases like measles are being seen again as infant immunisation declines (NZ Herald, 6 March 2019) and Unvaccinated Kiwis bearing brunt of measles outbreak (Newshub, 14 May 2019)

²⁰  See for example: Rose and Television New Zealand Ltd (Decision No.2018-078) at [20] and Leniston and Radio New Zealand Ltd (Decision No.2017-104) at [13]/[14]

²¹ Commentary: Children’s Interests, Broadcasting Standards in New Zealand Codebook, page 13

²² Guideline 3b

²³ Barker and Television New Zealand Limited, Decision No. 2000-033

²⁴ Commentary: Broadcasting Standards in New Zealand Codebook, page 14

²⁵ As above

²⁶ Guideline 4c

²⁷ Guideline 5b

²⁸ Guideline 5a.