BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority¹ has not upheld a complaint about the host’s language and approach during an interview broadcast on Magic Afternoons with Sean Plunket. Mr Plunket interviewed the Chief Executive of Universities New Zealand about the charging of holding fees for accommodation at university halls of residence during the COVID-19 lockdown period. During the interview Mr Plunket appeared increasingly frustrated and hung up on the interviewee after using the phrase, ‘Jesus Christ’. Noting it has previously determined that the use of variations of ‘Jesus’ and ‘Christ’ as exclamations or expressions of frustration or surprise did not threaten community standards, the Authority did not find any breach of the good taste and decency standard in this case. It also found that, in the context of robust questioning on a topic of significant public interest, Mr Plunket’s manner and approach, although it was at times rude and overly forceful, did not reach the threshold for finding a breach of the good taste and decency standard or justifying regulatory intervention.

Not Upheld: Good Taste and Decency

The broadcast

[1]  During Magic Afternoons with Sean Plunket, Mr Plunket phoned and interviewed the CEO of Universities New Zealand about universities charging students holding fees for accommodation at halls of residence during the COVID-19 lockdown period, even when they were not staying there.

[2]  After an exchange during which Mr Plunket repeatedly challenged the CEO to provide a reasonable explanation for this policy, the conversation ended in the following manner:

Mr Plunket:      [Interjecting] Jesus Christ… I rang you because you are the Chief Executive of the Universities of New Zealand, I thought you might have a vague bloody idea about what their policies are and how they came to them.

CEO:               I’ve got a, in principle, idea, but at the end of the day they’re…

Plunket:           Hey… I can’t be bothered, you don’t know what you’re talking about, goodbye. [NZ Universities CEO] there who’s just making vague, bloody stupid excuses, I guess we will have to go to all the individual universities. There’s a man who didn’t want to take any responsibility or engage in any meaningful way on the actual facts of what is happening to these poor university students. If you’re not in your bloody room, if you can’t use your room why you’re paying anything for it, a holding fee my arse…

[3]  The item was broadcast on Magic Talk on the afternoon of 28 April 2020 and repeated on the Rural Today news between 5am and 6am on 29 April 2020.

[4]  In considering this complaint, we have listened to a recording of the item and read the correspondence listed in the Appendix.

The complaint

[5]  The complainant submitted that the use of ‘Jesus Christ’ as ‘profanity used in anger and frustration’ is upsetting and offensive, and that Mr Plunket’s approach was unprofessional and ‘an example of poor journalism, questioning, respect and consideration of [the] interviewee and listeners’.

The broadcaster’s response

[6]  MediaWorks first apologised for not responding to the original complaint. It advised that the complaint (which was emailed to Magic Talk) had not been appropriately passed on to the MediaWorks Standards Committee due to the COVID-19 lockdown period. While we acknowledge the challenges and pressures faced by the broadcasting sector during this time, it remains important that broadcasters discharge their duty to receive and consider formal complaints about programmes broadcast by them,² including by having internal processes in place to ensure that any formal broadcasting standards complaints are identified and directed to the appropriate person or department for a response.³

[7]  Responding to Ms Hargreaves’ referral to the Authority, MediaWorks considered the complainant’s concerns with reference to the good taste and decency standard of the Radio Code of Broadcasting Practice. The broadcaster apologised to the complainant for the offence caused by the broadcast. However, in its view the complaint should not be upheld on the basis that ‘variations of “Jesus” used as an exclamation for the purpose of expressing irritation, dismay or surprise, does not amount to “coarse language” and has come to be widely used as part of everyday colloquial speech.’

The relevant standard

[8]  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 purpose of this standard is to protect audience members from viewing or listening to broadcasts that are likely to cause widespread undue offence or distress or undermine widely shared community standards. Context is crucial in assessing a complaint under this standard, including the context of the particular content complained about, as well as the wider context of the broadcast.⁴

[9]  In her referral of the complaint to the Authority, Ms Hargreaves also submitted that the item breached the balance standard because Mr Plunket ‘took no balanced position at all, and gave no opportunity for the interviewee to respond then hung up on him.’

[10]  Under section 8(1B) of the Broadcasting Act 1989, we are only able to consider a complaint under the standard(s) raised in the original complaint to the broadcaster. The High Court⁵ has clarified that in certain circumstances:

…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…

[11]  We have reviewed the wording of Ms Hargreaves’ original complaint and we do not consider that it could reasonably be interpreted as implicitly raising issues of balance. Ms Hargreaves stated that she was ‘upset by the language and approach used throughout the segment’ and made reference particularly to the use of the phrase ‘Jesus Christ’.

[12]  Accordingly, our determination is limited to considering the good taste and decency standard only.

Our analysis

[13]  The right to freedom of expression is an important right in a democracy and so when we consider any complaint that broadcasting standards have been breached, it is important that we weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only uphold a complaint where the limitation on the right to freedom of expression is reasonable and justified.

[14]  In considering the harm alleged to have been caused in this case with respect to the good taste and decency standard, we considered the following contextual factors to be relevant:

• Magic Afternoons is a talkback programme that is branded as ‘the free speech hotline for no-holds barred common sense talk’.⁶ Rural Today is a news and current affairs programme. Both have an adult target audience, although they are broadcast during times that children may be listening.
• Mr Plunket has a reputation for having a robust and challenging interviewing style and for offering strong, sometimes controversial opinions for the purpose of generating discussion and debate⁷ (although this does not give a broadcaster free rein, and conduct and comments will be considered on a case-by-case basis).
• The subject matter of the interview (challenging universities’ decisions to charge students a holding fee for accommodation even though they were not residing there during the lockdown period) carried high public interest.

[15]  Looking first at the complainant’s concerns about the use of the phrase ‘Jesus Christ’, we do not consider that the use of the phrase was likely to cause widespread undue offence, taking into account the above factors. The Authority’s research on Language That May Offend in Broadcasting shows that the phrase ‘Jesus Christ’ ranked at the bottom (29th out of 31) in the list of words tested, in terms of its level of offensiveness among those surveyed.⁸  As noted by the broadcaster, we have previously considered complaints about the use of variations of this type of expression and while we acknowledge some may be offended by this language (notwithstanding the research findings), we have consistently found that expressions of this nature used as exclamations or to express frustration or anger, do not reach the threshold for finding they threatened standards of good taste and decency.⁹ The same reasoning applies in this case, where the phrase was used in a colloquial manner to express Mr Plunket’s frustration with the interviewee’s responses to his questions, on a topic of high public interest.

[16]  The good taste and decency standard is primarily aimed at broadcasts containing sexual material, nudity, violence or coarse language, but may also be considered in relation to broadcasts that portray or discuss material in a way that is likely to cause offence or distress.¹⁰ In this respect, we acknowledge that some would consider Mr Plunket’s approach and interview manner, particularly at the end of the interview as set out in paragraph [2], to be distasteful or unacceptable. He was at times rude and overly forceful in his questioning of the interviewee. Mr Plunket’s reputation as an outspoken and opinionated host is a relevant contextual factor in assessing audience expectations and the risk of potential harm (paragraph [14] above). However, in the context of robust questioning on a matter of significant public interest, we do not consider Mr Plunket’s approach reached the threshold for finding a breach of the good taste and decency standard, or justifying regulatory intervention.

[17]  Given the particular subject matter, we are satisfied that any potential harm caused by Mr Plunket’s behaviour in this instance did not outweigh the right to freedom of expression. We noted in this respect that the interviewee’s measured response throughout the interview, in spite of Mr Plunket’s manner, mitigated its impact and the likelihood of harm being caused. However the onus remains on broadcasters to ensure programme hosts and interviewers maintain broadcasting standards when interviewing guests.

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

Judge Bill Hastings

Chair

14 October 2020    

Appendix

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

1  Rosemary Hargreaves’ complaint to MediaWorks – 29 April 2020

2  Ms Hargreaves’ further comments to MediaWorks – 19 May 2020

3  Ms Hargreaves’ referral to the Authority (on the basis of no response) – 28 May 2020

4  MediaWorks’ response to the Authority – 17 June 2020

5  Ms Hargreaves’ final comments – 18 June 2020

¹ Leigh Pearson declared a conflict of interest and did not participate in the determination of this complaint.
² Section 6(1)(a) Broadcasting Act 1989
³ See also Shierlaw and MediaWorks TV Ltd, Decision No. 2019-068 at [5]
⁴ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
⁵ Attorney General of Samoa v TVWorks Limited, CIV-2011-485-1110 at [62]
⁶ < https://www.magic.co.nz/home/shows/talk/magic-afternoons.html>
⁷ Marra and MediaWorks Radio Ltd, Decision No. 2019-023
⁸ Language That May Offend in Broadcasting (Broadcasting Standards Authority, June 2018), page 6
⁹ See for example, Keam and Television New Zealand Ltd, Decision No. 2017-090 and Foreman and NZME Radio Ltd, Decision No. 2018-012
¹⁰ Bush and The Radio Network, Decision No. 2010-114 at [52]. See also Bolster and Latimer and Television New Zealand Ltd, Decision No. 2010-186 at [36]