BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority did not uphold a complaint regarding a comment made by radio panellist Catherine Robertson about ‘murderous fantasies’, concerning punishment of an individual who escaped COVID-19 managed isolation. It was a satirical comment intended to be humorous and in line with audience expectations for the programme. The Authority noted satire and humour are important aspects of freedom of expression. It found limiting the broadcaster’s right to freedom of expression on this occasion was not justified.

Not Upheld: Violence, Law and Order, Balance

The broadcast

[1]  A segment on The Panel, on 8 July 2020, considered what should happen to an individual who had escaped COVID-19 managed isolation:

Wallace Chapman:     A lot of people on social media are saying ‘Throw the book at him, this is the person who is endangering our society’. What do you reckon?

Catherine Robertson: …I sort of have…the slightly murderous fantasies of putting his single-use plastic bag over his head, but of course, that’s not a rational response at all. But yeah…he broke the law, so there should be some punishment for that, whatever it is legally under our law.

Wallace Chapman:     What do you think Phil?

Phil O’Reilly:                I don’t doubt he will be punished, as I’ve seen some reports about that today. The wider issue, though, is this weird debate that we seem to have that the border either remains almost completely closed or somehow we’re just going to open it up altogether…

The complaint

[2]  Deborah Kean complained Ms Robertson’s comment breached the violence, law and order and balance standards of the Radio Code of Broadcasting Practice on the following grounds:

• Her fantasies were described in ‘very graphic’ detail.
• ‘She described the joy of imagining putting a plastic bag over his head, and watching him suffocate.’
• ‘Then she asked giggling, if that was wrong. To my horror host Wallace Chapman said no, what she said was in accord with his thoughts.’
• ‘This is a clear advocacy of violence, promotion of murder goes against the spirit of law and order.’
• ‘Lastly, it’s not remotely balanced.’

The broadcaster’s response

[3]  Radio New Zealand (RNZ) did not uphold Ms Kean’s complaint on the following grounds:

• The comments made by the panellist were somewhat tongue in cheek followed by a measured response.
• At no point was there any encouragement or incitement to commit a crime let alone a murder as the complaint suggests.
• The comments lacked invective.

The standards

[4]  The violence standard states broadcasters should exercise care and discretion when dealing with the issue of violence. This standard will rarely apply to radio as violent material has more impact visually.¹

[5]  The law and order standard 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. The standard does not stop broadcasters from discussing or depicting criminal behaviour.²

[6]  The balance standard states when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view, either in the same programme or in other programmes within the period of current interest.

Our findings

[7]  We have listened to a recording of the broadcast and read the correspondence listed in the Appendix. We have also considered the important right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, which is the starting point when we consider any complaint.

[8]  We may only intervene and uphold a complaint where the broadcast has caused actual or potential harm at a level that justifies placing a reasonable limit on the right to freedom of expression. For the reasons below, we have not found any such harm in this case.

Violence

[9]  The purpose of the violence standard is to protect audiences from unduly disturbing violent content.³ Ms Robertson’s comment did not constitute such content. We appreciate Ms Kean’s complaint relied on her recollection of the broadcast, but the exchange as set out at paragraph [1] did not include graphic detail, advocacy of violence or promotion of murder. Ms Robertson did not refer to watching the person suffocate, nor did Mr Wallace affirm her comment as in accord with his thoughts. Ms Robertson’s comment was satirical and used hyperbole and humour to suggest the type of person that escapes managed isolation is the type that uses single-use plastic bags, and should be punished. Satire and humour are important and protected aspects of freedom of expression. Also, Ms Robertson quickly qualified her comment, adding, ‘But of course, that’s not a rational response at all’.

[10]  Accordingly, we do not uphold the complaint under the violence standard.

Law and order

[11]  The purpose of the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.⁴ For the reasons outlined at paragraph [9], the broadcast did not breach this standard. Ms Robertson’s comment was in jest, and while it contained shock value, it was qualified by her subsequent comment. It did not promote criminal behaviour and would not have encouraged listeners to break the law.

[12]  Accordingly, we do not uphold the complaint under the law and order standard. 

Balance

[13]  The first question under the balance standard is whether the complaint related to a ‘discussion’ of a ‘controversial issue of public importance’.⁵ An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public.⁶ A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁷

[14]  The Government’s management of COVID-19 at the international border is a controversial issue of public importance. However, the appropriate punishment of the person who escaped managed isolation, which was the focus of Ms Robertson’s comment and Ms Kean’s complaint, is not. Therefore, the balance standard does not apply and the broadcaster was not required to present alternative views about the appropriate punishment of the person.

[15]  To the extent Ms Kean’s concern about balance relates to the alleged disproportionality of Ms Robertson’s proposed punishment, this was satirical and qualified by Ms Robertson’s subsequent comments.

[16]  Accordingly, we do not uphold the complaint under the balance standard.

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

Judge Bill Hastings

Chair

9 December 2020

Appendix

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

1  Deborah Kean’s formal complaint – 9 July 2020

2  RNZ’s response to the complaint – 14 August 2020

3  Ms Kean’s referral to the Authority – 14, 15 August 2020

4  RNZ’s confirmation of no further comment – 18 September 2020

¹ Guideline 4a
² Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
³ Commentary: Violence, Broadcasting Standards in New Zealand Codebook, page 14
⁴ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
⁵ Guideline 8a
⁶ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁷ As above