BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

During a segment on The Project, the hosts discussed a new artificial intelligence technology capable of detecting a person’s sexual orientation through analysis of their facial features. In response, presenter Jesse Mulligan commented, ‘That’s an amazing story, a computer can tell if you’re gay or not. I hope the computer can keep a secret.’ The Authority did not uphold a complaint that this comment ‘perpetuated the prejudiced view that homosexuality [was] something to be kept secret and… shameful’. The Authority found that, while Mr Mulligan’s comment could be seen as ‘clumsy’ or tactless, it was clearly intended to be humorous and it did not actively encourage the different treatment, or devalue the reputation of, gay people as a section of the community. A high level of condemnation, often with an element of malice or nastiness, is necessary to conclude that a broadcast encouraged discrimination or denigration, and in this case, the Authority did not consider Mr Mulligan’s comments reached the high threshold necessary to find a breach of the standard, or to warrant limiting the right to freedom of expression.

Not Upheld: Discrimination and Denigration 

Introduction

[1]  During a segment on The Project, the hosts discussed a new artificial intelligence technology capable of detecting a person’s sexual orientation through analysis of their facial features. In response, presenter Jesse Mulligan commented, ‘That’s an amazing story, a computer can tell if you’re gay or not. I hope the computer can keep a secret.’

[2]  Matthew Jack complained that Mr Mulligan’s comment ‘perpetuated the prejudiced view that homosexuality [was] something to be kept secret and… shameful’, and it was not clear from the broadcast that the comment was made in jest.

[3]  The issue raised in Mr Jack’s complaint is whether the broadcast breached the discrimination and denigration standard, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The programme was broadcast at 7pm on 11 September 2017 on Three. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the broadcast encourage the denigration of, or discrimination against, any section of the community?

[5]  The objective of the discrimination and denigration standard (Standard 6) is to protect sections of the community from verbal and other attacks. The 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.

[6]  ‘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 class of people.¹

[7]  Reflecting the importance of the right to freedom of expression in a democratic society, guideline 6b to the standard states that a high level of condemnation, often with an element of malice or nastiness, will be necessary to conclude that a broadcast encouraged discrimination or denigration in contravention of the standard. Additionally, the standard is not intended to prevent the broadcast of material that is legitimate humour, drama or satire.²

The parties’ submissions

[8]  Mr Jack submitted:

• Mr Mulligan’s comment implied that ‘homosexual identification was… something to be concealed, [and] therefore shameful’, which would be seen by the wider audience as ‘a gay “put down”’. 
• He did not agree that it was clear from the broadcast that the comment was made in jest.

[9]  MediaWorks submitted:

• It agreed the remark was ‘clumsy’, however it considered that it was clear from the context and tone of the broadcast that Mr Mulligan did not intend to denigrate gay people or suggest that it would be desirable for a gay person to hide or mask their sexuality.
• The remark was intended to be humorous and was not expressed with any malice or nastiness, which was required to find a breach of the standard.
• MediaWorks also provided a response from Mr Mulligan, who said:

I’m truly sorry that my clumsy attempt at humour could ever be interpreted as encouraging people to keep their sexuality a secret. It was supposed to be a self-deprecating remark about myself, playing on my reputation as a ‘metrosexual’. But I understand how this could easily have been understood by others and I should have chosen my words more carefully.

Our analysis

[10] When assessing whether a broadcast ‘encouraged’ discrimination or denigration, we consider, among other factors: the language used; the tone of the person making the comments; the forum in which the comments were made; whether the comments appeared intended to be taken seriously; and whether the comments were repeated or sustained.³

[11]  In this case, while we accept that Mr Mulligan’s comment could be seen as ‘clumsy’ or tactless, Mr Mulligan has explained he intended his comment to be humorous and self-deprecating, based on his own reputation, rather than being malicious or an attack against a section of the community. This could be inferred from Mr Mulligan’s flippant tone and the fact that the comment was met with some laughter from co-presenters.

[12]  Additionally, The Project is a current affairs programme which features hosts and guests who at times take an unorthodox and humorous approach to issues.⁴ The programme is recorded live in front of a studio audience and the presenters frequently engage in light-hearted banter. We do not consider Mr Mulligan’s brief remark was inconsistent with the now established tone and style of this programme.

[13]  Taking these contextual factors into account, we are satisfied that Mr Mulligan’s comment did not amount to, and would not be received by viewers as, hate speech or a sustained attack on a particular group. Allowing the free and frank expression of humour and satire is a necessary part of living in a democracy, and in this case we do not consider that Mr Mulligan’s comment could reasonably be interpreted as actively encouraging the different treatment of, or devaluing the reputation of, gay people as a section of the community. In our view upholding the complaint would place an unreasonable limit on the right to freedom of expression.

[14]  For these reasons, we do not uphold the complaint under Standard 6.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
15 December 2017
 

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:
1  Matthew Jack’s formal complaint – 12 September 2017
2  MediaWorks’ response to the complaint – 6 October 2017
3  Mr Jack’s referral to the Authority – 13 October 2017
4  MediaWorks’ confirmation of no further comment – 3 November 2017

¹  Guideline 6a

² Guideline 6c

³ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16

⁴ Thelning and MediaWorks TV Ltd, Decision No. 2017-038 at [10]