BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Warning: This decision contains coarse language that some readers may find offensive

Summary

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

The Authority has not upheld a complaint that use of the word ‘cunt’ in the New Zealand crime drama series, One Lane Bridge, breached the discrimination and denigration standard. The Authority observed that the standard is not intended to prevent the broadcast of legitimate drama and considered that the threshold for its intervention had not been reached. It determined that use of the word, in its context, did not contain the level of malice or nastiness required to find a breach of the discrimination and denigration standard and did not amount to hate speech or a sustained attack on women as a section of the community.

Not Upheld: Discrimination and Denigration

The broadcast

[1]  One Lane Bridge is a New Zealand-made crime drama series set in rural Queenstown. The series centres on the investigation of the death of a local farmer, Andrew ‘Grub’ Ryder, at the bridge. In episode 2 of the series, Grub’s wife Kate was confronted with information that Grub was having an affair with another woman, Charlotte. Kate approached Charlotte’s house and spoke to Charlotte through the intercom. The following was said:

Charlotte, it’s Kate. I was wondering if I could have a word… about you fucking my husband. Let me in so we can talk about it like grown-ups. Or you come out, yea you come out, neutral territory. I have some questions I need you to answer.

Whore. Charlotte…you have everything, why did you need Grub as well. Fucking cunt! Come out here you, fucking chicken cunt!

[2]  Later on in the episode, Kate’s daughter, Emma repeats the phrase back to her, saying:

Fucking chicken cunt…You’re a fucking drunk. I hate you.

[3]  The episode was broadcast on TVNZ 1 at 8.30pm on 27 April 2020. In considering this complaint, we have viewed a recording of the broadcast and read the correspondence listed in the Appendix.

The complaint

[4]  Trena Marshall originally complained to the broadcaster under the good taste and decency and the discrimination and denigration standards. In her referral to the Authority, Ms Marshall has only sought a review of the broadcaster’s decision under the discrimination and denigration standard.

[5]  Ms Marshall submitted that the item breached the discrimination and denigration standard of the Free-to-Air Television Code of Broadcasting Practice,¹ for the following reasons:

• The c-word is full of ‘woman hatred’ and is unacceptable.
• ‘I equate it with the n-word used to describe African Americans.’
• ‘Just as the n-word is an unacceptable racial epithet, my argument is that the c-word is an unacceptable word of misogyny.’
• It is ‘pejorative’.
• ‘The word was not necessary to the plot and deeply offensive both in its component hatred of women and in its contribution to normalising the use of the word.’

The broadcaster’s response

[6]  TVNZ did not uphold the complaint for the following reasons:

• The word was directed at an individual with whom she was furious.
• It was not intended to express any condemnation of women.
• The programme is a fictional drama, not factual programming.

[7]  Although TVNZ did not uphold the complaint, TVNZ apologised to Ms Marshall for the offence caused by the use of the word.

The standard

[8]  The discrimination and denigration standard (Standard 6) protects against broadcasts that 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. The standard only applies to recognised ‘sections of the community’, which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.²

Our analysis

[9]  Freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. We may only uphold complaints where the limitation on the right is reasonable, prescribed by law and demonstrably justified in a free and democratic society. We recognise the harm that may be caused by speech, and the discrimination and denigration standard provides some guidelines for broadcasters as to the boundaries for how speech ought to be managed.

[10]  As noted in paragraph 8, the standard only applies to recognised ‘sections of the community’. We accept that women are a relevant ‘section of the community’ for the purposes of the standard.

[11]  Context must always be considered when assessing whether a broadcast encouraged discrimination or denigration.³ We have taken into account the following contextual factors:

• The programme is a fictional drama. It was rated AO (adults only), and targeted at adult viewers.
• The programme was broadcast at 8.30pm and the relevant word did not appear until well into the programme.
• The dialogue was a dramatic expression of the characters in the particular (fictional) situations.
• The word was repeated three times. In all instances, it was directed at a specific person to express anger. It was not directed as an attack on women generally.

[12]  We note that TVNZ, although it did not uphold the complaint, has apologised to Ms Marshall for the offence the use of the word has caused her.

[13]  We acknowledge Ms Marshall’s concern that the usage of the word may contribute to its normalisation. We also acknowledge that 2018 research undertaken by the Broadcasting Standards Authority showed that the word shares the top spot on the list of the most unacceptable words used in television drama after 8.30pm.⁴

[14]  However, the question for us here is whether the use of the word, in this context, encouraged the denigration of or discrimination against women as a section of the community. The importance of freedom of expression means 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 breach of the standard.⁵ Comments will not breach the standard just because they are offensive and dramatic material is unlikely to breach the standard unless the content amounts to hate speech or a sustained attack on a particular group (in this case women) as a section of the community.⁶

[15]  The discrimination and denigration standard is not intended to prevent the broadcast of legitimate drama.⁷ As the Authority has previously commented, legitimate drama is a valuable form of expression and controversial themes and dialogue are often included for the purposes of character and plot development.⁸

[16]  We do not consider that the use of the word in this context contained the level of malice or nastiness required to find a breach of the discrimination and denigration standard, nor that it amounted to hate speech or a sustained attack on women as a section of the community. Therefore, the threshold for our intervention has not been reached.

[17]  For the above reasons, we do not uphold this complaint.

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

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

24 August 2020

Appendix

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

1  Trena Marshall’s original complaint – 29 April 2020

2  TVNZ’s response to Ms Marshall – 26 May 2020

3  Ms Marshall’s referral to the BSA – 2 June 2020

4  TVNZ’s response to the referral – 10 June 2020

5  Ms Marshall confirming referral under standard 6 – 15 July 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 the 1 May 2020 version.
² Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15
³ Guideline 6d
⁴ Language That May Offend in Broadcasting (Broadcasting Standards Authority, June 2018), page 22
⁵ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁶ As above
⁷ Guideline 6c
⁸ Hall and Large and Television New Zealand Ltd, Decision No. 2018-061 at [13]