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 alleging comments made by commentators during a golf tournament breached the law and order standard. While discussing the difficulty of the course, a commentator suggested ‘Charles Manson put this [pin position] in!’ Later in the tournament, the commentator said, ‘whoever set that flag, I can just picture him in his room at night catching flies and pulling the wings off them and watching them suffer’. The Authority found this would not have encouraged, promoted or glamorised illegal or anti-social behaviour in breach of the standard.

Not Upheld: Law and Order

The broadcast

[1]  During Live Round 3, Andalucía Masters, two commentators discussed the difficulty of the course, particularly the locations of the flags, or pin positions. They made the following comments:

• ‘There is actually some nasty pin positions out there today…You put the flags in the middle of the greens at Valderrama - they are nasty. This one’s seriously nasty…Charles Manson put this in! [laughter]’
• ‘That’s a brutal flag…whoever set that flag, I can just picture him in his room at night catching flies and pulling the wings off them and watching them suffer.’

The complaint

[2]  James Waters complained the broadcast breached the law and order standard for the following reasons:

• It referred to ‘criminal activity in the context of a joke’. The ‘alleged joke’ was about ‘organisers setting up the course’ with pin locations, and referenced American criminal and cult leader Charles Manson.
• ‘…to joke about a serious offence, in particular, the Charles Manson murders is a breach in itself, whether this was intended to incite such activity or not’.
• A commentator referred to ‘the organisers sitting at home catching flies, pulling their wings off and then watching them suffer’. While this is ‘not an extreme example of animal cruelty to most listeners’, it may be ‘how some activity of that type starts’.
• ‘Animal cruelty is not a matter of humour’.
• ‘In relation to the general nature and context of the complaint I would suggest it is surprising that in the context of a golfing commentary that a commentator would find reason to refer to criminal activity in this manner as source of amusement’.

The broadcaster’s response

[3]  Sky Network Television Ltd (Sky) did not uphold the complaint under the law and order standard for the following reasons:

• ‘The purpose of this standard is to prevent broadcasts that encourage audiences to break the law, or otherwise promote criminal or serious antisocial activity. The content in question cannot be classified as such.’
• ‘The commentators right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act - the right to freedom of expression allows individuals to express themselves in their own words, provided this does not cause undue harm.’

The standard

[4]  The law and order standard¹ states broadcasters should observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast. Its purpose is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.²  

Our analysis

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

[6]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. Our task is to weigh the value of the programme, in terms of the right to freedom of expression and the public interest in it, against the level of actual or potential harm caused by the broadcast. The harm alleged is viewers may be encouraged to commit murder, or cruelty to animals.

[7]  The key question is whether the broadcast would have had the effect of encouraging viewers to break the law, or otherwise promoting, glamorising or condoning criminal activity. This standard does not stop broadcasters from discussing or depicting criminal behaviour or other law-breaking, even if they do not explicitly condemn that behaviour.³

[8]  In assessing the effect of the comments, the context of the programme and the wider context of the broadcast are important considerations.⁴ The context in this case is that sports commentary is known to use metaphorical or exaggerated speech,⁵ and the comments were made as part of a four-hour golf event broadcast between midnight and 5am.

[9]  Viewers would have understood the comments were jokes made to illustrate how difficult the course was, by suggesting whoever placed the flags was trying to make the competitors suffer. The commentators did not cast Charles Manson or fly torture in a positive light. We do not consider the broadcast would have had the effect of encouraging, promoting or glamorising illegal or anti-social behaviour.

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

Susie Staley
Chair
2 March 2022    

Appendix

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

1  James Waters’ original complaint to Sky – 27 October 2021

2  Sky’s decision on the complaint – 21 December 2021

3  Waters’ referral to the BSA – 10 January 2022

4  Waters providing additional detail re broadcast time – 14 January 2022

5  Sky’s confirmation of no further comments – 3 February 2022

¹ Standard 5 of the Pay Television Code of Broadcasting Practice
² Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
³ As above
⁴ Guideline 5b
⁵ See for example Newlove and NZME Radio Ltd, Decision No. 2019-052