BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News – presenters used the term “anti-gay” to refer to people who opposed same-sex marriage – allegedly in breach of accuracy, discrimination and denigration, and responsible programming standards

Findings

Standard 5 (accuracy) – while use of term “anti-gay” was sloppy, and incorrect when taken in isolation, it was corrected by context of discussion about gay marriage – not upheld

Standard 7 (discrimination and denigration) – term “anti-gay” was used in context of discussion about gay marriage and did not carry any malice or invective – did not encourage discrimination or denigration against people opposed to same-sex marriage – not upheld

Standard 8 (responsible programming) – viewers would not have been deceived – not upheld

This headnote does not form part of the decision.

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Introduction

[1]  During two items on One News the presenters used the term “anti-gay” to refer to people who opposed same-sex marriage. The programme was broadcast on TV One on 27 May 2013.

[2]  Boyd Henderson made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging the presenters’ use of the label “anti-gay” was misleading and offensive to people who were “against the re-definition of marriage from its usual and historic sense – and hence are anti-gay marriage law”. He considered that the use of the term denigrated people opposed to same-sex marriage.

[3]  The issue is whether the items breached the accuracy, discrimination and denigration, and responsible programming standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed a recording of the broadcasts complained about and have read the correspondence listed in the Appendix.

Were the items inaccurate or misleading?

[5]  The accuracy standard (Standard 5) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.¹

[6]  Mr Henderson argued that the use of the label “anti-gay” instead of “anti-gay marriage” was misleading as it suggested people opposed to same-sex marriage were “personally antipathetic towards and even haters of gays”. TVNZ responded that the term “anti-gay” was simply used as shorthand to explain the protestors were marching in opposition to legislative changes impacting on gay people. It argued the phrase was not a material point of fact in the brief news items.

[7]  The term “anti-gay” was used by the presenters in each item, as follows:

• “French riot police have clashed with anti-gay demonstrators following a protest over the new gay marriage law. Tens of thousands of protestors rallied to show their continued opposition to same-sex marriage which became legal over a week ago.”
• “A French lesbian love story has taken the top award at the Cannes Film Festival and the festival’s director has urged anti-gay protestors in France to go and see it…”

[8]  In our view, the use of the term “anti-gay” was sloppy, and taken in isolation, it was incorrect because it suggested that the protestors who were referred to objected to homosexuality, rather than gay marriage. However, in assessing how the comments would have been interpreted and understood by the average viewer, context is all important. It was obvious from the context of each item that the term was intended to refer to people opposed to same-sex marriage, not homosexuality, and reasonable viewers would have realised this. Accordingly, while it would have been preferable for the items to refer to “anti-gay marriage” in full – and in this respect the difference between the two phrases in terms of timing did not justify the use of “shorthand” in our view – on balance, the distinction was not so significant as to warrant us upholding the complaint.

[9]  Accordingly, we decline to uphold the Standard 5 complaint.

Did the items encourage discrimination or denigration against men as a section of the community?

[10]  The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, a section of the community. The term “denigration” has consistently been defined by the Authority as blackening the reputation of a class of people.²  “Discrimination” has been consistently defined as encouraging the different treatment of the members of a particular group to their detriment.³  It is also well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard.⁴

[11]  Mr Henderson argued that the use of the label “anti-gay” denigrated the section of the community who opposed same-sex marriage on cultural, religious and/or political grounds.

[12]  TVNZ argued that people opposed to gay marriage were not a section of the community to which the standard applied. In any event, it said the term was not used in a pejorative way, and did not amount to hate speech.

[13]  People opposed to same-sex marriage could be considered a section of the community on grounds of religious, cultural or political belief. While we acknowledge the complainant’s argument that the items blurred the distinction between “anti-gay” and “anti-gay marriage”, as we have said above, the context of the items did clarify the intended meaning for viewers. Further, the use of the term “anti-gay” did not carry any malice or invective, so it did not reach the threshold for blackening the reputation of people opposed to same-sex marriage, or encouraging the different treatment of that group.

[14]  Accordingly, we decline to uphold the Standard 7 complaint.

Did the items breach the responsible programming standard?

[15]  The responsible programming standard (Standard 8) requires that programmes are correctly classified, and not presented in such a way as to deceive or disadvantage viewers, or cause panic, unwarranted alarm or undue distress.

[16]  My Henderson argued that the use of the label “anti-gay” deceived viewers by “starting a slur on a section of the community which is erroneous”.

[17]  The term was used in an unclassified news programme targeted at adults with the faculty to understand and interpret the intended meaning of the term from the context of the items. The items were not presented in a way that deceived the audience.

[18]  We therefore decline to uphold the complaint under Standard 8.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
10 October 2013

Appendix

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

1               Boyd Henderson’s formal complaint forms – 30 May 2013

2              TVNZ’s response to the complaint – 2 July 2013

3              Mr Henderson’s referral to the Authority – 24 July 2013

4              TVNZ’s response to the Authority – 6 August 2013

¹Bush and Television New Zealand Ltd, Decision No. 2010-036

²See, for example, Mental Health Commission and CanWest RadioWorks, Decision No. 2006-030.

³For example, Teoh and Television New Zealand Ltd, Decision No. 2008-091

⁴For example, McCartain and Angus and The Radio Network Ltd, Decision No. 2002-152