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 that a segment on 7 Days was unfair to a singer who performed the New Zealand national anthem ahead of an All Blacks game in San Diego. The complainants said the broadcast was unfair to the performer and unbalanced, noting she was accused of ‘butchering’ the anthem and called ‘Dunedin’s most well-known murderer’. The Authority found the programme was not unfair, noting: viewers were unlikely to interpret the programme as suggesting the performer was an actual murderer or criminal; having chosen to perform at such an event, she could reasonably expect comment on her performance; viewers would not have been left with an unfairly negative impression of the performer; comments were directed at the performance rather than the performer personally; and that comedy and satire are valuable forms of expression.  The balance standard did not apply.

Not Upheld: Fairness, Balance

The broadcast

[1]  An episode of 7 Days was broadcast on 25 July 2024. The programme involved the host questioning two three-person teams of comedians about various events which had been reported in the media during the week.

[2]  During a segment called ‘My Audience Could Draw That’, each team was shown a picture drawn by an audience member relating to an event reported in the news that week. The team members had to decipher which event was depicted in the drawing.

[3]  The relevant picture was discussed as follows:

Vaughan Smith: I feel, Jeremy, this drawing is telling the story of the butchering of the New Zealand national anthem.

Hayley Sproull: You have been so mean about this anthem all week.

Smith: It was terrible. I’m not saying I could do any better, but I could 100% have done better.

[4]  The audience member confirmed the drawing represented the performance of the national anthem at the All Blacks vs Fiji game in San Diego and described the artwork:

Audience Member: …People on Facebook described it [the performance] as making their ears bleed… and we’ve got some people booing…

[5]  The host of the programme then gave a description of the news item:

Jeremy Corbett: I’ll tell you the story. You’re quite right Team One. [The performer] received some harsh criticism online this week after fans claimed she mangled the New Zealand national anthem ahead of the All Blacks clash against Fiji in San Diego, which is in the USA. Americans were very confused as they didn’t realise God was defending another country as well.

Lana Walters: I think it was actually a really powerful performance. It got Kiwis up out of their seats at home to mute the TV.

[6]  The segment subsequently showed a brief clip of the performance, after which the panellists made further comments including:

Corbett: I don’t think it was that bad.

Smith: She’s from Dunedin right?... So, she is now Dunedin’s most well-known murderer.

The complaint

[7]  Malcolm Hopwood and Kathi Hopwood-Craig are the parents of the performer featured in the broadcast. They complained the broadcast breached the fairness and balance standards of the Code of Broadcasting Standards in New Zealand because of the comedians’ comments and laughter in relation to their daughter’s performance. They added:

• The comment that she was ‘Dunedin’s most well-known murderer’ is ‘disgraceful and defamatory. The comment was further [inflamed] by other comments on the programme… [Smith’s] comment was said savagely with no humour in his voice and has to be accepted at face value, that she’s a criminal. He never qualified what he said to mean anything else’.
• ‘There were no positive comments or attempts to balance the segment…and [the performer] has never been approached in subsequent episodes to respond’.
• Their daughter had suffered significant harm:
  (a)  The 7 Days broadcast ‘contributed to’ hate mail. They noted, ‘More than 50,000 people delivered hate mail messages through social media, abusing [the performer], her performance, her family and threatened her life and safety. She is now too afraid to return to New Zealand.’
  (b)  The programme (including the ‘high-profile murderer’ comment) is highly damaging to the performer, her reputation, career and future engagements.
  (c)  NZ Rugby have acknowledged the harm their daughter has suffered because of public criticism of her performance and have offered her free counselling sessions.
• Their daughter should not be considered a public figure for the purposes of the fairness standard threshold, as ‘she is largely unknown in New Zealand as her career has been shaped overseas… she would not have been known to 99.9 percent of people on the ground or viewers at home and didn’t deserve what followed on social media’.

The broadcaster’s response

[8]  Warner Brothers Discovery (WBD) did not uphold the complaint for the following reasons:

• ‘[The performer] is a public figure who willingly put herself in the public eye by performing the New Zealand national anthem at the All Blacks match against Fiji in San Diego. We note her performance attracted widespread media attention and significant commentary. For this reason, we maintain that regular viewers of 7 Days would have expected the Broadcast to mention her performance, given the programme reviews the week’s news.’
• ‘It was obvious from the programme genre and the tone of the comments that what was said was not intended as a personal attack or serious comment on [the performer], her character or integrity. The comedian's joke that she was 'Dunedin's most well-known murderer' was a comment about her performance of the national anthem and intended to suggest she had murdered the song, not to seriously suggest that [the performer] is an actual murderer or criminal.’
• ‘The nature of the programme meant the comments were unlikely to have been taken seriously by viewers which the Committee maintains also mitigates the potential for any unfairness or breach of this standard.’

The standards

[9]   The fairness standard¹ protects the dignity and reputation of those featured in programmes.² It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

[10]  In our view, the harm the complainants are concerned about is the unfair portrayal of their daughter by the panellists on the programme, and the emotional and reputational harm she has suffered as a result. We consider this is most appropriately addressed under the fairness standard but have considered balance briefly at [21].

Our analysis

[11]  We have watched the broadcast and read the correspondence listed in the Appendix.

[12]  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 – which includes the broadcaster’s right to broadcast content that appeals to a range of viewers, as well as the audience’s right to receive that content – against any harm potentially caused by the broadcast. Comedy and satire are important and valuable forms of expression.³ We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁴

Was the broadcast unfair to the performer?

[13]  A consideration of what is fair, and the threshold for finding unfairness to an individual, may take into account factors including:⁵

• the nature of the content (eg news, political content, factual dramatic, comedic or satirical)
• the nature of the individual (eg the threshold for finding unfairness will be higher for a public figure, politician or organisation familiar with dealing with the media as opposed to an ordinary person with little or no media experience, whether the individual or organisation is based in New Zealand or overseas)
• whether the programme would have left the audience with an unfairly negative impression of the individual
• whether any critical comments were aimed at the participant in their business or professional life, or their personal life
• the public significance of the broadcast and its value in terms of free speech
• the target and likely audience, and audience expectations
• the vulnerability of the individual.

[14]  Considering these factors, we do not consider the broadcast was unfair:

• 7 Days is a comedy satire show known for containing material and language that is at times provocative, or that some viewers may find challenging. There are established audience expectations for the type of humour included in the programme, which is frequently about current events from the previous week.
• The Authority has previously found that regular viewers of 7 Days would understand the participants’ comments ‘are for the most part absurd and untrue in relation to the news stories they are satirising’.⁶ We consider it unlikely viewers would interpret comments on the programme as suggesting the performer was an actual murderer or criminal (or that anyone overseas, and unfamiliar with the programme, could be led to such a conclusion).
• While the performer may not be a well-known public figure in New Zealand, she is a professional musician who accepted a contract to perform at an international sporting event which was broadcast live. She has elected to ‘enter the fray’ and can reasonably expect comment on her performance.⁷
• We do not consider this programme would have left viewers with an unfairly negative impression of the performer, noting:
  (a)  the host’s comment ‘I don’t think it was that bad'
  (b)  an excerpt of the performance was played so viewers could judge for themselves, and
  (c)  music is always a matter of personal taste.
• The comments in the programme were directed at the performance rather than the performer personally.
• As noted at paragraph [12], comedy and satire are important and valuable forms of expression.

[15]  We have considered whether prior ‘harsh criticism’ of the performer online (noted by the host in the programme) may have suggested a potential vulnerability to be considered in the choice to broadcast jokes at the performer’s expense. The performance, as well as the subsequent social media criticism, had been widely covered in the media prior to the broadcast with a variety of perspectives.⁸ However, the extent of the social media criticism and its impact on the performer was not widely published until after the broadcast.⁹ The broadcaster has confirmed it was not aware of its full extent, or impact on the performer, prior to the broadcast.

[16]  In the circumstances, while we do recognise the serious impact subsequent criticism has had on the performer, our role is to assess a specific broadcast and whether the harm likely caused by that broadcast outweighs the broadcaster’s right to freedom of expression. For the reasons above, we do not consider there was sufficient harm to justify our intervention.

[17]  Accordingly, we do not uphold this complaint.

Balance

[18]  The balance standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.¹⁰ An issue is controversial if it is of topical currency and has conflicting opinion or about which there is ongoing public debate.¹¹ The Authority has previously found that 7 Days is a comedy and entertainment programme which satirises news and current events, and is not a ‘news, current affairs or factual programme’ as envisaged by the standard.¹² Viewers would not interpret it as an authoritative or factually accurate source of information, and accordingly the standard does not apply.

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

Signed for and on behalf of the Authority

Susie Staley
Chair
20 November 2024

Appendix

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

1  Malcolm Hopwood and Kathi Hopwood-Craig’s formal complaint – 20 August 2024

2  WBD’s response to the complaint – 16 September 2024

3  Hopwood and Hopwood-Craig’s referral to the Authority – 19 September 2024

4  Hopwood and Hopwood-Craig’s further submissions on their daughter being a ‘public figure’ – 25 September 2024

5   Hopwood and Hopwood-Craig’s further submissions – 09 October 2024

6  WBD’s confirmation of no further comment – 23 October 2024

7  WBD’s comments on impact of criticism on the performer – 11 November 2024

¹ Standard 8, Code of Broadcasting Standards in New Zealand
² Commentary, Standard 8, Code of Broadcasting Standards in New Zealand, page 20
³ See Kirke and Discovery NZ Ltd, Decision No. 2021-020 at para [8] for a similar finding
⁴ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁵ Guideline 8.1
⁶ See Hawker and TVWorks Ltd, Decision No. 2013-076 at [12]
⁷ See Arayni & Others and Television New Zealand Ltd, Decision No. 2015-036 at [9]: ‘A public figure is usually someone, whether it be a politician or otherwise, who has elected to enter the fray and engage in the give-and-take that occurs in that fray’.
⁸ NZ Herald Reporters “All Blacks vs Fiji: NZ fans criticize rendition of God Defend New Zealand” The New Zealand Herald (online ed, 20 July 2024); Stuff sports reporters “Watch: Fans call out the poor rendition of the national anthem” Stuff (online ed, 21 July 2024); Jared Wright “’My poor ears’ – All Blacks fans slam ‘worst ever’ rendition of New Zealand’s national anthem” Planet Rugby (online ed, 20 July 2024); and Mikaele Liga “Singer criticized for her rendition of the New Zealand national anthem at All Blacks vs Fiji match” Fiji Village (online ed, 23 July 2024) 
⁹ See, for example, Star News Reporters “National anthem singer ‘afraid for her life’ after savage online attacks” Star News (online ed, 08 August 2024); and 1News Reporters “National anthem singer says the hate she received is ‘dangerous’” 1News (online ed, 16 August 2024),
¹⁰ Guideline 5.1
¹¹ Guideline 5.1
¹² See Hawker and TVWorks Ltd, Decision No. 2013-076 at [16] for a similar finding