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 that two guest panellists’ comments on The AM Show about English rugby players following the Rugby World Cup final breached the discrimination and denigration standard. Discussing some players’ refusal to wear their silver medals after losing the final, the panellists made comments including that the English players were ‘pouty little babies, pathetic, stupid, dumb, bad sportsmanship’, ‘petulant English kids’, ‘prats’, ‘it’s their upbringing’, ‘those English players who wanted to toss their medals on the ground’. The complaint was that these comments were nasty and offensive, and ‘racist’ by suggesting ‘it’s [the players’] upbringing’. The Authority noted the large majority of the comments were clearly directed at the individual players concerned, rather than commenting on a group of people. In the context, the only comment that could be interpreted as extending beyond the individual players (‘it’s their upbringing’), did not reach the high threshold for finding the broadcast encouraged the denigration of, or discrimination against, all English people as a section of the community. The panellists’ comments were clearly opinion meaning they were not subject to the accuracy standard, and they did not amount to a discussion of a controversial issue of public importance so the balance standard did not apply.

Not Upheld: Discrimination and Denigration, Accuracy, Balance

The broadcast

[1]  During The AM Show broadcast on 4 November 2019 on channel Three, the programme presenters and two guest panellists, Brendan Telfer and Richard Pamatatau, discussed the outcome of the 2019 Rugby World Cup. Duncan Garner began the discussion by putting to the panellists, ‘England with the silver medals…?’ referring to players who apparently refused to wear their medals after losing the World Cup final. Comments from the panellists included:

• ‘Pouty little babies, pathetic, stupid, dumb, bad sportsmanship.’
• ‘Petulant English kids’
• ‘It’s their upbringing, they’re prats.’
• ‘…those English players wanting to toss their medals onto the ground…’

[2]  The discussion then moved on to other topics and continued for another six minutes or so, including commending the Spring Boks for their World Cup win and speculating about the All Blacks’ leadership going forward.

The complaint

[3]  Richard Knight complained that the panellists’ comments breached the discrimination and denigration, accuracy and balance standards of the Free-to-Air Television Code of Broadcasting Practice,¹ for the following reasons:

Discrimination and denigration (Standard 6)

• ‘The language used by both [Telfer] and Pamatatau was offensive and contained malice and nastiness which breached Standard 6.’
• ‘The term prat is highly offensive and the accusation that it is due to their upbringing is an attack not only on the English rugby team but the English nation. It is a racist comment.’
• ‘The programme was a tirade of abuse directed at the English and made no attempt to examine the consequences to a losing side in such a unique event for the players concerned.’

Accuracy (Standard 9)

• All of the players bar one (who is extremely tall) had their medals placed around their neck.
• Mr Telfer’s suggestion the players wanted to throw their medals on the ground is completely false.

Balance (Standard 8)

• ‘The programme was no more than a series of abusive comments towards the England rugby team. It lacked balance and breached Standard 8. One of the accusations was England showed bad sportsmanship yet a week earlier they were seen consoling the All Blacks after their defeat in the semi-final’.

The broadcaster’s response

[4]  MediaWorks initially responded under Standards 6, 8 and 11 (Fairness) and found no breach of these standards, saying:

We have reviewed the Broadcast and found no grounds to uphold your complaint. The comments about members of the English rugby team were expressions of opinion made in the context of a panel discussion where expressions of opinion are expected. We regret that you did not enjoy the comments but we are satisfied that they did not breach the nominated Standards.

Although we have not upheld your complaint, we communicated your concerns to The AM Show’s executive producer.

[5]  After further correspondence with the complainant, MediaWorks also provided a response in relation to the accuracy standard (which was identified in the original complaint):

Apologies for our delay responding to your email below, and for the Committee’s error in relation to your complaint under Standard 9.

We do not agree that the broadcast you have complained about breached the Accuracy Standard. …Under Guideline 9a: The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact. We are satisfied that Brendan Telfer’s reference to the English players being ‘prats’ was clearly his opinion. It is not a statement which is provable or disprovable and therefore the Accuracy Standard does not apply. The Committee may not endorse that view, however Mr Telfer was entitled to express it.

Our analysis and the outcome

[6]  In considering this complaint the members of the Authority have watched a recording of the broadcast segment complained about, and we have reviewed the correspondence listed in the Appendix.

[7]  We have also considered the right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information. This is the starting point in our consideration of any complaint that broadcast standards have been breached. Our task is to weigh the value of, and public interest in, the broadcast complained about, against the level of actual or potential harm that may be caused by the broadcast, with reference to the objectives of the standards described above. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[8]  For the reasons outlined below in relation to each of the nominated standards, we have not found actual or potential harm of the nature described in the complaint which warrants regulatory intervention or limiting freedom of expression in this case.

Discrimination and denigration

[9]  The discrimination and denigration standard (Standard 6) 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.

[10]  The first issue we considered was whether the panellists’ comments could reasonably be considered as referring to a section of the community as envisaged by the standard.

[11]  In our view, all of the comments except one were squarely directed at the actions of the English rugby players concerned, and could not reasonably be interpreted as commenting on, or attacking, all English people as a group. In this respect the comments reflected other coverage and social media attention regarding two English players in particular who refused to wear their medals when they were presented to them.²

[12]  The only comment that could possibly extend beyond the particular players concerned and trigger the discrimination and denigration standard was Mr Telfer’s remark, ‘it’s their upbringing’.

[13]  Given the importance of the right to freedom of expression, there is a high threshold for finding a broadcast encouraged discrimination or denigration in breach of the standard. We acknowledge some viewers (including the complainant) may have found the comment offensive. However the Codebook recognises that allowing the expression of a wide range of views is a necessary part of living in a democracy, and comments will not breach the standard just because they are rude or may offend people.³

[14]  In the context of a much longer discussion about numerous aspects of the Rugby World Cup and the performance of various teams, we are satisfied that one brief reference to the players’ ‘upbringing’ was insufficient to reach the high threshold for finding the broadcast ‘encouraged’ discrimination against, or the denigration of, English people as a section of the community. This did not amount to hate speech or a sustained attack on all English people. Viewers would have understood the discussion overall to be sports commentary referring to the sportsmanship of the rugby players concerned.

[15]  We therefore do not uphold the complaint under Standard 6.

Accuracy

[16]  The purpose of the accuracy standard (Standard 9) is to protect the public from being significantly misinformed.⁴ It states that broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.

[17]  Under guideline 9a, the standard does not apply to any statements that are clearly distinguishable as analysis, comment or opinion. The Codebook guidance on distinguishing fact from opinion notes that a fact is verifiable: something that can be proved right or wrong. An opinion, on the other hand, is contestable and others may hold a different view.⁵

[18]  In our view, the panellists were clearly giving their opinions on the English players’ behaviour, so the accuracy standard did not apply. The language used (eg, ‘prats’) could not be interpreted as making statements of fact. Similarly, the comment, ‘those English players wanting to toss their medals onto the ground’ speculated on their state of mind rather than what actually happened so it was not a verifiable statement of fact.

[19]  The panellists did not say all of the English team refused to wear their medals. It was reasonable to refer to ‘players’ given two English players (not one) received media attention and comments on social media for refusing to wear their medals (one who did not put it on, and one who immediately removed it).⁶

[20]  For these reasons we find no breach of the accuracy standard.

Balance

[21]  The balance standard (Standard 8) states that 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.

[22]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.⁷ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁸

[23]  The panel discussion regarding the Rugby World Cup final and the English players’ actions did not amount to a discussion of a ‘controversial issue of public importance’ as defined above, therefore the balance standard was not triggered. The broadcaster was not required to present alternative views in support of the English rugby team, although we note there were some supportive comments made in the segment, for example Duncan Garner said, ‘silver medal – they did well.’

[24]  Accordingly we do not uphold the balance complaint.

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

Judge Bill Hastings

Chair
4 August 2020

Appendix

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

1  Richard Knight’s formal complaint – 10 November 2019

2  MediaWorks’ response to the complaint (Standards 6, 8, 11) – 31 January 2020

3  Further correspondence between Mr Knight and MediaWorks, including MediaWorks’ response to Standard 9 – 2 February - 1 March 2020

4  Mr Knight’s referral to the Authority – 1 March 2020

5  MediaWorks’ confirmation of no further comments – 16 June 2020

¹ The Free-to-Air Television Code of Broadcasting Practice was refreshed with effect from 1 May 2020. This complaint has been determined under the April 2016 version of the Free-to-Air Television Code of Broadcasting Practice as the relevant broadcast pre-dated 1 May 2020.
² For example, ‘2019 Rugby World Cup final: England duo Kyle Sinckler and Maro Itoje snub medals’ (Stuff, 3 November 2019)
³  Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁴ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁵ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62
⁶ ‘2019 Rugby World Cup final: England duo Kyle Sinckler and Maro Itoje snub medals’ (Stuff, 3 November 2019)
⁷ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁸ As above