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 a segment on the Fletch, Vaughan & Hayley morning show breached the discrimination and denigration standard. In the broadcast, the hosts made several jokes and innuendos about the name of Irish airline Aer Lingus and one host, putting on an Irish accent, stated ‘on the menu today, we have potatoes’. The complainant considered the jokes to be offensive to Irish people and culture, and to amount to racism. The Authority acknowledged the jokes had the potential to offend, but did not uphold the complaint, finding the jokes did not meet the threshold for a breach under the discrimination and denigration standard as they were unlikely to encourage the different treatment of Irish people to their detriment, devalue the reputation of Irish people, or embed negative stereotypes.

Not Upheld: Discrimination and Denigration

The broadcast

[1]  During a segment of Fletch, Vaughan & Hayley, broadcast on 17 August 2023, the hosts discussed a complaint that had come in to the station about a previous segment where they had joked about the name of Irish airline carrier Aer Lingus. The hosts then proceeded to make several more jokes about the airline’s name, with various innuendos regarding cunnilingus. Toward the end of the segment, the following dialogue occurred:

Vaughan:       It would be great hearing an Irish accent over the P.A.

Hayley:           [In an Irish accent] On the menu today, we've got some potatoes.

Vaughan:       Oh now you've got to apologize again.

Fletch:            Well, Vaughan’s going to get another complaint here.

The complaint

[2]  Mike Healy complained the hosts’ comments were ‘deeply offensive to Irish people and culture’ and amounted to ‘blatant racism’. The complainant stated ‘The piece ridiculed the Irish Language (Aer Lingus) and the Irish history of dehumanisation (potato) despite being told these were hostile by a listener’. The complainant’s concerns about the hosts’ comments are summarised below:

Jokes about the name Aer Lingus

• The complainant stated the name Aer Lingus is derived from the Irish language, and mocking the name was discriminatory and denigrated the Irish people and culture.
• In response to the broadcaster advising that Aer Lingus was an Anglicisation of the Irish word ‘aerloingeas’ (air fleet), the complainant stated that ‘pointing out the Anglicisation of the Irish language is simply pointing to our Irish history where the Irish Language now has many anglicised words as a direct result of the racism and dehumanisation experienced by the Irish people.’
• The complainant stated: ‘If this was a native language of a NZ ethnic group it would be intolerable – yet due to ignorance [the hosts] can happily mock and degrade a race and ethnic identity on other side of the world.’

Joke about potatoes

• The complainant advised that the host’s reference to potatoes in the context of the broadcast was an ethnic slur, and ‘directly mocks the genocide of the Irish population through British colonisation’ as the word is a reference to the Potato Famine, where colonial actions of the British left over a million Irish dead and more displaced. The complainant stated the joke showed ‘ignorance of our history of oppression’ was ‘insensitive and degrading for the Irish people and culture’.

The broadcaster’s response

[3]  NZME acknowledged that due to ‘Ireland’s difficult history… some people would find offensive, jokes that mention potatoes in connection with Ireland or the Irish’. The broadcaster also stated that it ‘in no way wishes to diminish the events that occurred in Irish history, particularly the Great Famine, or the impact of those events on the Irish people. However, NZME disputed ‘any suggestion of racism or that degrading comments were made against Irish people within the broadcast.’ NZME acknowledged the views the complainant had expressed and advised it would ensure the key points raised were passed on to the relevant programming teams for consideration in relation to future conduct. However, it did not uphold the complaint, for the following reasons: 

Contextual factors

• ‘The segment complained about was during the Fletch, Vaughan & Hayley show on ZM. ZM has target audience of young adults, 18-39 year olds. The Fletch, Vaughan and Hayley show is a comedic breakfast radio show and would be known by its regular listeners for its humorous content. Hayley is a well-known comedian, known for her irreverent humour.’
• ‘The segment was in the nature of legitimate humour, which the standard is not intended to prevent.¹ The commentary to the standard states that legitimate humour is a valuable form of speech and is unlikely to breach the standard unless it had the potential to cause harm at a level that justifies restricting freedom of expression. [NZME] does not consider the segment had the potential to cause such harm as outlined in this response.’

Discrimination and Denigration standard

• NZME argued, as ‘the segment would not reach the threshold under this standard of encouraging the denigration of or discrimination against a section of the community (Irish people), the segment was in the nature of legitimate humour, and the requisite level of malice was not met in this case.’
• NZME did not consider the broadcast could reasonably be seen as encouraging the different treatment of Irish people, or encouraging the denigration of any section of the community, on account of race, culture or for any other reason described in the standard.

Jokes about Aer Lingus

• NZME noted the discrimination and denigration standard only applies to sections of the community and therefore would not apply to Aer Lingus as an airline. It stated further ‘The comment complained of in connection with Aer Lingus turned on the similarity between the name of Ireland’s national air carrier and the word “lingus” (as in “cunnilingus”). It is worth noting that the name “Aer Lingus” itself is an Anglicisation of the Irish “aerloingeas” (air fleet) and this is not the first time a similarity between the two words has been noted.’

Jokes about potatoes

• NZME stated that ‘no comments were made in the broadcast about the Irish history of colonial oppression or the massacre of Irish people as suggested by Mr Healy’ and that it ‘rejects any characterisation of the host’s “potatoes” comment as a slur or a racist slur.’
• NZME stated that while ‘Irish people may take issue with the host’s references to potatoes… no derogatory comments were made about Irish people or that could evoke prejudicial biases towards Irish people (and the requisite level of malice would not otherwise be met in this case).’

Jurisdiction – standards raised

[4]  On referral to the Authority, the complainant additionally raised the offensive and disturbing content standard. 

[5]  Under section 8(1B) of the Act, 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.²

[6]  In this instance, while the original complaint referred to the jokes in the broadcast as being ‘offensive’, this comment was made in the context of the complainant stating the jokes were specifically offensive to Irish people as the complainant considered the hosts ‘mocked’ the Irish language and ‘degraded’ Irish people and culture. We consider the original complaint to be more focused on the treatment of the Irish people as a section of society, and do not consider the offensive and disturbing content standard could reasonably be implied into the wording of the complaint, or is reasonably necessary for the proper consideration of the complaint. We have therefore restricted our assessment of the complaint to the discrimination and denigration standard originally nominated by the complainant.

Our analysis

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

[8]  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 demonstrably justified in a free and democratic society.³

Discrimination and Denigration

[9]  The discrimination and denigration standard protects against broadcasts that encourage discrimination against, 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. The standard only applies to recognised ‘sections of the community’, which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.⁴ We consider Irish people a relevant ‘section of the community’ for the purposes of the standard.⁵

[10]  ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment. ‘Denigration’ is defined as devaluing the reputation of a particular section of the community.⁶

[11]  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 (although broadcast content which has the effect of reinforcing or embedding negative stereotypes may also be considered).⁷

[12]  The Codebook recognises that comments will not breach the discrimination and denigration standard simply because they are critical of another group, because they offend people, or because they are rude.⁸ Further, the standard is not intended to prevent the broadcast of material that is factual, a genuine expression of serious comment, analysis or opinion, or legitimate humour, drama or satire.⁹

[13]  Context is an important consideration in assessing whether a broadcast has gone too far. The following contextual factors are relevant to our consideration:

• Fletch, Vaughan & Hayley is a popular morning show, which plays on ZM, and has an adult target audience of 18 to 39 year olds.¹⁰
• The show is known for its irreverent humour, and has the tagline ‘Laugh out louder’.¹¹
• The comments were intended to be humorous, and were said without malice or nastiness.
• The innuendo about Aer Lingus’ name was sustained.

[14]  We acknowledge the jokes had the potential to be offensive to Irish people. However, comments will not breach this standard simply because they are offensive.¹² Applying the guidance referred to above at [9] – [12], and taking into account the above contextual factors at [13], we do not consider the comments reached the threshold for a breach under the standard.

[15]  While arguably in bad taste, the jokes about the airline’s name and the reference to potatoes were not made with malice or nastiness directed at Irish people or culture, and we do not consider them likely to encourage the different treatment of Irish people to their detriment, or devalue the reputation of Irish people. The jokes were primarily directed at the airline. Irish people more generally were not the subject of the segment.

[16]  The Authority has previously recognised some words – even if not said with malice or nastiness – have the power to embed negative stereotypes, and may therefore breach the standard.¹³ We do not consider the innuendo or the host’s reference to potatoes in this case had such an effect.

[17]  Overall, considering the importance of freedom of expression, the legitimate attempt at humour, the lack of malice, and the context of the broadcast, we have not found harm at a level that justifies restricting freedom of expression.

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

Susie Staley
Chair
16 January 2024    

Appendix

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

1  Mike Healy’s formal complaint to NZME – 21 August 2023

2  NZME’s response to the complaint – 19 September 2023

3  Healy’s referral to the Authority – 19 September 2023

4  Healy’s additional comments – 21 September 2023

5  NZME’s further comments – 6 October 2023

6  Healy’s further comments – 18 October 2023

7  NZME’s confirmation of no further comment – 26 October 2023

¹ Guideline 4.2
² Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
³ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁴ Commentary, Standard 4, Code of Broadcasting Standards in New Zealand at page 12
⁵ McCaughan and MediaWorks TV LTD, Decision No. 2019-065 at [12]
⁶ Guideline 4.1
⁷ Guideline 4.2
⁸ Commentary, Standard 4, Code of Broadcasting Standards in New Zealand at page 12
⁹ Guideline 4.2
¹⁰ NZME “NZME Audio” at “Radio Brands” (accessed 28 November 2023)
¹¹ ZM “Fletch, Vaughan and Hayley” (accessed 28 November 2023)
¹² Commentary, Standard 4, Code of Broadcasting Standards in New Zealand at page 12
¹³ Guideline 4.2