BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 1 (good taste and decency) – contextual factors – not upheld

Standard 5 (accuracy) – comments were hosts' personal opinions – not upheld

Standard 4 (controversial issues – viewpoints) – comments made during brief exchange between co-hosts – no discussion of a controversial issue of public importance – not upheld

Standard 6 (fairness) – overseas-trained doctors an occupational group and not individual or organisation to which standard applies – Mr Powell treated fairly – not upheld

Standard 7 (discrimination and denigration) – broadcaster did not encourage discrimination against, or denigration of, overseas-trained doctors – not upheld

Standard 8 (responsible programming) – comments would not have alarmed or distressed viewers – not upheld

This headnote does not form part of the decision.

Broadcast

[1]  During an episode of Breakfast, broadcast on TV One on Monday 9 August 2010 at 6.30am, presenter Pippa Wetzell interviewed Ian Powell from the Association of Salaried Medical Specialists about the large number of New Zealand-trained doctors leaving the country to work overseas.

[2]  Ms Wetzell introduced the item with the following statement:

Well almost half the doctors working in New Zealand are immigrants, as homegrown doctors leave the country in droves to practice medicine in Australia for more money and a better lifestyle.

[3]  During the interview, Mr Powell stated that New Zealand was the highest country in the OECD in terms of its dependency on overseas recruitment of medical practitioners. Mr Powell discussed the extent to which New Zealand-trained doctors were leaving the country to work overseas, some of the reasons for this, and possible ways to prevent it.

[4]  Later in the programme, at 7.16am, the following exchange took place between Ms Wetzell and co-presenter Paul Henry in relation to the issues covered in the preceding interview:

Henry:       It is a complicated subject isn't it?

Wetzell:     It is very difficult because the other side of it is too, is that if we don't have as
                many local doctors then we are bringing in immigrants to fill those gaps then
                obviously there is more training required there and the doctors who are here
                have a more challenging job.

Henry:       These immigrants can't be as good as our doctors.

Wetzell:     Well they haven't been trained in the same way.

Henry:       Or they would stay overseas wouldn't they? They would stay overseas if there's
                opportunity for making money overseas.

Wetzell:     Well, it's a lifestyle choice for them to be here though.

Complaints

[5]  Barry Mahon and Graham Wolf made formal complaints to Television New Zealand Ltd, the broadcaster, alleging that the item breached broadcasting standards.

Mr Mahon's complaint

[6]  Mr Mahon argued that the hosts' comments regarding immigrant doctors breached standards relating to accuracy, fairness, discrimination and denigration and responsible programming.

[7]  The complainant referred to Mr Henry's comment that overseas-trained doctors could not be "as good as our doctors" and his suggestion that they would stay overseas if they had the opportunity to make more money there. He argued that these comments were not only inaccurate but also "illogical". Mr Mahon contended that there were numerous immigrant doctors who were "highly respected" and recognised as "leaders in their fields". As an immigrant doctor himself, he said that when he moved to New Zealand he had been required to take a pay cut.

[8]  The complainant also took issue with Ms Wetzell's statement that immigrant doctors required training which made the job of locally-trained doctors more "challenging".

[9]  In Mr Mahon's view, the immigrant doctors referred to in the programme were treated unfairly because they were "labelled as being inferior" to New Zealand-trained doctors. He maintained that the broadcaster gave no opportunity to challenge this suggestion, despite the fact that it was made immediately following the interview with the president of the Association of Salaried Medical Specialists.

[10]  The complainant argued that the comments encouraged discrimination against, or the denigration of, a section of the medical community on the basis of whether or not they were trained in New Zealand.

[11]  Turning to Standard 8, Mr Mahon argued that the comments subject to complaint had caused distress to a number of immigrant doctors, and could have created unwarranted alarm in the patients that they attended to.

Mr Wolf's complaint

[12]  Mr Wolf argued that the broadcast breached standards relating to good taste and decency, controversial issues, discrimination and denigration and responsible programming. In his view, Mr Henry's comments regarding foreign medical practitioners were "highly derogative" and "offensive" toward Mr Powell after he had left the studio.

Standards

[13]  TVNZ assessed the complaints under Standards 1, 4, 5, 6, 7 and 8 of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 4 Controversial Issues - Viewpoints

When discussing controversial issues of public importance in news, current affairs or 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.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, 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.

Standard 8 Responsible Programming

Broadcasters should ensure programmes:

• are appropriately classified;
• display programme classification information;
• adhere to time bands in accordance with Appendix 1;
• are not presented in such a way as to cause panic, or unwarranted alarm or undue distress; and
• do not deceive or disadvantage the viewer.

Broadcaster's Response to the Complainants

[14]  Looking first at good taste and decency, TVNZ stated that Breakfast was "a mixture of news, serious interviews, magazine segments, reviews and often frequent good-natured ribbing at the expense of almost anyone in the headlines or visiting the set". It said that participants and viewers appreciated this, and in particular the host's "‘shoot from the lip' hyperbolic comments [were] an accepted style and integral part of the daily morning fare for the programme's growing audience".

[15]  The broadcaster argued that to constitute a breach of Standard 1, the broadcast material must be unacceptable to a significant number of viewers in the context in which it was shown, including the time of broadcast, the programme's classification, the target audience, and the use of warnings.

[16]  TVNZ argued that Breakfast had an "established style" and that its adult target audience was well aware of how the hosts interacted with each other and with the issues under discussion.

[17]  The broadcaster contended that Mr Henry had been interrupted in his stream of conversation, and that his first comment was linked to his second. It said that what he was trying to ask, "quite legitimately, was that if foreign-trained doctors were as good as New Zealand doctors, why didn't they beat the departing New Zealand doctors to many of those higher paying overseas jobs". TVNZ considered that, while it was "unfortunate" that Mr Henry "wasn't fluent in his delivery", he did not intend to cause offence and his comments would not have offended a significant number of viewers.

[18]  Furthermore, the broadcaster said, Ms Wetzell pointed out that there could be various non-monetary reasons for foreign doctors coming to work in New Zealand; lifestyle factors made it an appealing place to work, "presumably making [it] an attractive destination for immigrant doctors".

[19]  Accordingly, TVNZ declined to uphold the Standard 1 complaint.

[20]  Turning to Standard 4, TVNZ noted that the Authority had typically defined a "controversial issue" as one which had topical currency and excited conflicting opinion, or about which there had been ongoing public debate¹. In the broadcaster's view, the issue of New Zealand doctors leaving to work overseas was not controversial because there was no disagreement that it was occurring. Even if it was, the preceding interview with Mr Powell provided appropriate perspectives on the issue, it argued.

[21]  For these reasons, TVNZ declined to uphold the Standard 4 complaint.

[22]  Turning to accuracy, the broadcaster argued that Mr Henry's comment was not presented as fact, but was clearly framed as his genuinely held opinion, "to which he was entitled". It declined to uphold a breach of Standard 5.

[23]  TVNZ said that Standard 6 applied to individuals or organisations taking part or referred to in programmes. It argued that immigrant doctors fell outside the scope of the standard and it therefore declined to uphold the fairness complaint.

[24]  With regard to Standard 7, the broadcaster did not consider that Mr Henry's "off-the-cuff" remark reached the high threshold necessary to denigrate all immigrant doctors. His comment was not calculated to "hurt or offend, nor was it repeated", it said. The broadcaster reiterated its view that the comment was not presented as fact, but reflected Mr Henry's personal opinion on the various abilities of doctors given that New Zealand doctors were leaving for "better conditions" overseas.

[25]  Accordingly, the broadcaster found that Mr Henry's comment did not encourage the denigration of immigrant doctors and it declined to uphold a breach of Standard 7.

[26]  Turning to Standard 8, TVNZ said that the responsible programming standard existed to ensure that programmes were correctly classified and ratings were displayed. It pointed out that Breakfast was an unclassified "daily magazine-style news programme" with an adult target audience, meaning that it was not required to display programme classification ratings. In TVNZ's view, the programme was not presented in such a way as to cause panic, unwarranted alarm or undue distress.

[27]  For these reasons, the broadcaster declined to uphold the Standard 8 complaints.

Referrals to the Authority

[28]  Dissatisfied with the broadcaster's response, Mr Mahon and Mr Wolf referred their complaints to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[29]  Mr Wolf said that he was increasingly concerned about Mr Henry's "now ‘formally normalised' style of offensive behaviour". He argued that although Breakfast may have an adult target audience as contended by TVNZ, it was also viewed by a large number of children and teenagers. In his view, Mr Henry's "offensive and inappropriate" behaviour on public television sent "disturbing role model messages to our youth and ‘adults of tomorrow'".

Authority's Determination

[30]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaints without a formal hearing.

Standard 1 (good taste and decency)

[31]  When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• Breakfast was an unclassified news and current affairs programme
• it had an adult target audience
• the comments were preceded by an interview with Mr Powell from the Association of Salaried Medical Specialists.

[32]  The Authority has previously stated (e.g. Yeoman and TVNZ² ) that standards relating to good taste and decency are primarily aimed at broadcasts that contain sexual material, nudity, violence or coarse language. However, the Authority has also said that it will consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.

[33]  We note that the comments subject to complaint formed part of a brief exchange between the co-hosts on an issue discussed earlier on Breakfast. In our view, Mr Henry's comments were ill-informed, but his parochial remarks were countered by Ms Wetzell's observation that lifestyle factors played an important role in attracting immigrant doctors to New Zealand.

[34]  Taking into account the above contextual factors, we consider that most viewers would not have been offended by the brief comments and we therefore decline to uphold the Standard 1 complaint.

Standard 5 (accuracy)

[35]  Standard 5 requires that broadcasters make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to material points of fact, and does not mislead. Guideline 5a to the accuracy standard says that it does not apply to statements which are clearly distinguishable as comment or opinion.

[36]  In our view, the comments complained about were not statements of fact, but were clearly distinguishable as the hosts' personal opinions on the implications of New Zealand-trained doctors leaving the country and being replaced by doctors trained overseas. We therefore find that the accuracy standard does not apply on this occasion and we decline to uphold the Standard 5 complaint.

Standard 4 (controversial issues – viewpoints)

[37]  Standard 4 states that when controversial issues of public importance are discussed in news, current affairs or 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.

[38]  As noted above, the comments subject to complaint formed part of a brief exchange between the co-hosts who were expressing their personal opinions on an issue discussed earlier on Breakfast. In our view, the comments were superficial and did not go into any depth on the issues discussed in the preceding interview with Mr Powell. For these reasons, we do not consider that the brief exchange constituted a "discussion" for the purposes of Standard 4, and we therefore decline to uphold this part of the complaint.

Standard 6 (fairness)

[39]  The fairness standard requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme.

[40]  Mr Mahon argued that the immigrant doctors referred to in the item were treated unfairly because they were "labelled as being inferior" to New Zealand-trained doctors. We find that Mr Mahon's fairness complaint related to an occupational group in general (immigrant doctors) and not an individual or organisation to which the fairness standard applies. Accordingly, we decline to uphold this part of the complaint.

[41]  Mr Wolf argued that the comments were "highly derogative" and "offensive" toward Mr Powell after he had left the studio. We disagree. In our view, Mr Powell was treated fairly throughout the Breakfast item. We note that while Mr Henry and Ms Wetzell touched upon the issues discussed in the previous interview with Mr Powell after he had left the studio, he was not mentioned specifically, nor was what he said canvassed in any depth. Accordingly, we decline to uphold the complaint that Mr Powell was treated unfairly.

Standard 7 (discrimination and denigration)

[42]  Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community. The Authority has consistently defined "denigration" as blackening the reputation of a class of people (see, for example, Mental Health Commission and CanWest RadioWorks³). "Discrimination" has been defined as encouraging the different treatment of the members of a particular group, to their detriment (for example, see Teoh and TVNZ⁴).

[43]  It is also well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard (see, for example, McCartain and Angus and The Radio Network⁵ ).

[44]  Mr Mahon argued that the comments discriminated against a section of the medical community on the basis of whether or not they were trained in New Zealand.

[45]  In our view, the host's comments, which were clearly his personal opinions, were brief and did not carry any invective. We consider that they did not encourage discrimination against, or the denigration of, immigrant doctors for the purposes of the standard.

[46]  Accordingly, we decline to uphold the Standard 7 complaints

Standard 8 (responsible programming)

[47]  Standard 8 requires that programmes are correctly classified, display programme classification information, and adhere to the time-bands set out in the Free-to-Air Television Code. It also requires that programmes are not presented in such a way as to cause panic, unwarranted alarm, or undue distress.

[48]  Mr Mahon argued that the comments had distressed a number of immigrant doctors, and could have caused undue alarm in the patients that they attended to.

[49]  We note that Breakfast is an unclassified news and current affairs programme with an adult target audience, and that the comments subject to complaint were opinionated and brief. For these reasons we do not consider that the item would have alarmed or distressed viewers and we decline to uphold the Standard 8 complaints.

For the above reasons the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Peter Radich
Chair
23 December 2010

Appendix

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

1.          Barry Mahon's formal complaint – 18 August 2010

2.         TVNZ's response to the formal complaint – 7 September 2010

3.         Mr Mahon's referral to the Authority – 15 September 2010

4.         TVNZ's response to the Authority – 9 November 2010

1.         Graham Wolf's formal complaint – 31 August 2010

2.         TVNZ's response to the formal complaint – 28 September 2010

3.         Mr Wolf's referral to the Authority – 5 October 2010

4.         TVNZ's response to the Authority – 9 November 2010

¹Ministry of Social Development and TVNZ, Decision No. 2006-076

²Decision No. 2008-087

³Decision No. 2006-030

⁴Decision No. 2008-091

⁵Decision No. 2002-152