BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary 

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

The Authority has upheld part of a complaint about satirical comedy series, James Must-a-pic His Mum a Man, finding it was unfair to the complainant, James Mustapic’s father, and action taken by the broadcaster (having upheld two aspects of the fairness complaint) was not sufficient to remedy potential harm to the complainant. Comments were made throughout the series which the Authority found created a negative impression of James’ father and had the potential to adversely affect him and his reputation – meaning the broadcaster should, in the interests of fairness, have informed him of the nature of the programme and his participation prior to broadcast. The Authority acknowledged the action taken by TVNZ (apologising to the complainant, adding a disclaimer to the start of each episode, and making significant edits to the programme content) and found that was sufficient to address the single privacy breach (implying the complainant did not pay child support). However, there had not been any public acknowledgement of the breach to date, to remedy potential reputational damage. The Authority did not uphold the rest of the complaint: no other information was disclosed about which the complainant had a reasonable expectation of privacy; and the accuracy standard did not apply.

Upheld: Fairness – Action Taken. Not Upheld: Privacy – Action Taken, Accuracy. 

No Order

The broadcasts 

[1]  Between 7 and 22 March 2024, TVNZ 2 broadcast a six-part satirical comedy series, James Must-a-pic His Mum a Man, fronted by New Zealand comedian James Mustapic. The show is also available on-demand on TVNZ+ and is described: ‘James Mustapic helps his mum [Janet] cannonball back into the dating pool, dishing out advice, roping in Kiwi celebs and advertising her online in hope of finding the father he’s always wanted’.

[2]  Each episode referred, in varying degrees, to James’ father, the complainant Dan Mustapic, whom James said left or ‘disowned’ him when James was three years old. Throughout the series references to his father set the scene for why he felt compelled to find his mum a man, and himself a father figure.

[3]  Comments which either referred to the complainant, or could be interpreted as referring to the complainant, included:

Episodes 1 and 2, 9.30pm, 7 March 2024

• ‘I grew up without a dad in my life.’
• ‘I’ve never had a proper father figure in my life.’
• ‘My dad left when I was three so Mum practically raised me and my sister on her own.’
• ‘We couldn’t have her find another guy like my dad, look how depresso I was.’
• Janet talked about her experience of dating James’ father and challenging relationships with his dad’s family, including that she had secretly drunk a lot of alcohol when she was at their house as a coping mechanism.
• ‘If this guy was my dad, I’d be quite happy for him to disown me like my real one.’
• ‘…[Janet’s] most notable [ex], the man you were with the longest, was my dad. He represented New Zealand in the Winter Olympics for curling, so at least we knew where he was every four years. In one nail-biting game, he was able to secure New Zealand the tenth place. Out of ten. So go dad.’ Accompanying these comments were blurred photos of the complainant, and screenshots from a Wikipedia page about him.
• ‘My first thought was to reach out to my dad. However, he was not keen to be a part of the show, or my life in general.’
• ‘I still needed answers from my dad. However, much like coming last in the Winter Olympics, I was last place in people my dad wanted to talk to.’
• In a comedic reenactment with another comedian role-playing as James’ father, the comedian got James’ name wrong, and James asked him: ‘Where’s my child support?’, to which his ‘Dad’ responded: ‘I spent it on curling gear, but I do have the latest state-of-the-art broom, the Nimbus 2000.’
• Janet also asked the comedian, ‘Why did you leave?’ and he responded, ‘The door was there.’ She said, ‘That’s not a very good excuse.’
• In a later reenactment featuring the same comedian, James said: ‘Please, Dad. I know I’m only three years old, but I’ve been around long enough to know that whānau is the most important thing in this crazy world. If you leave, it could cause me a lot of psychological damage. I might even become so deranged that I make a TV show about you.’ He also said to the comedian, ‘get out of here, you curly-haired curling fuck’.

Episode 3, 9.55pm, 8 March 2024

• ‘If there’s one thing my dad taught me, it’s that wives and children are disposable.’

Episode 4, 9.55pm, 15 March 2024

• ‘Would [my mother] do a good job of helping me find someone? Probably not, she did date my dad.’
• James said to one of his mother’s dates: ‘I actually project a lot on my real father, so you could be a good replacement… it’s a pretty low bar.’

Episodes 5 and 6, 9.55pm, 22 March 2024

• Janet discussed getting married to James’ father with James and a psychic. The psychic asked Janet, ‘Was it full of love and lust?’ Janet responded, ‘Yeah, probably. Yeah it was at that stage’ but had turned into being full of anger and rage by the time James was conceived.
• During the ‘father-son’ marriage of James and the man he chose for his mother: ‘I promise to support you, even if you decide to take up an embarrassing sport like curling.’
• ‘My mother is happy and now I have a father figure in my life… but [mum] never needed a man, she did this for me because I needed a dad.’

The complaint

[4]  Dan Mustapic complained that the broadcasts breached the privacy, fairness and accuracy standards of the Code of Broadcasting Standards in New Zealand:

General comments

• While the main premise of the programme is finding Janet a man, ‘secondary to that are repeated digs (lies) about me – which are grossly untrue and unfair’.
• ‘At what point does a comedian and apparently others on the show (not comedians) stop getting a free pass and get to hide behind “not to be taken seriously”.’
• If this happened in a workplace, ‘I have no doubt that it would be considered bullying and harassment. Done on national TV, funded by taxpayers.’
• ‘I work, I am a grandparent, I volunteer, I treat my staff, family and friends well. If this can happen to me, this can happen to anyone. By airing this TVNZ has more or [less] said everyone is fair game. Should [it] not be obligated to put some disclaimer on every show similar [to this]?’

Accuracy

• The programme made numerous inaccurate statements about him and misled the audience; he was not contacted by anyone to ask if the statements made about him were correct:
  • The complainant ‘abandoned’ James at the age of three and he’s never really had a father figure in his life. The complainant said he spent a fortune on legal fees, fighting for better custody of his children (while their mother tried to limit it). He maintained regular visitation and ‘they were always welcome’. They did do things together (and he has photos of this) for example going to Disneyland, and James attending his wedding when James was 11. At around the age of 12, James ‘stopped coming – his choice. So in fact he abandoned me – not the other way around?’
  • The complainant refused to be on the show. ‘I didn’t refuse to be on the show. I wasn’t asked. I found out about it [the show] the same as everyone else… advertising.’
  • He tried to get out of paying child support. ‘In fact, child support was garnished from my wages just like it is for everyone else.’
  • Janet used ‘Mustapic’ as her surname throughout the show, not her actual name. She never used the complainant’s name even when they were married.

Privacy 

• He was clearly identifiable due to having a distinctive surname and since he is the only curler in New Zealand with that name.

Fairness

• ‘How was I fairly dealt with. I was personally exposed and accused of something which is incorrect.’ The complainant reiterated the points he considered were inaccurate (above).
• People would form a negative perception of him as a result of the comments made about him on the show.
• People had contacted him asking what it was all about, after the show being aired (including people in his work life).
• This has impacted his business revenue.
• TVNZ did not contact him as part of the complaints process to discuss remedies for his complaint.

The broadcaster’s response

[5]  TVNZ upheld two aspects of the complaint under the privacy and fairness standards, finding:

Implying child support from the complainant was not forthcoming

• The implication the complainant did not pay child support (in the comedic reenactment, Episode 2) was incorrect and therefore would be highly offensive to a reasonable person in the complainant’s shoes (notwithstanding it was part of a comedic scenario, and viewers would see it as exaggerated).
• It was also unfair.

James reached out to his father but he was not keen to be involved 

• Regarding James’ statement his first thought was to reach out to his father, but he was ‘not keen to be involved in the show or his life’: The complainant was not contacted by the production company as part of the programme. Therefore, comments that he was ‘not keen to be a part of the show or my life in general’ were incorrect, and unfair to the complainant (Episode 2).

[6]  In terms of remedies and the actions taken in response to these breaches, TVNZ:

• Apologised to the complainant in its decision.
• Added a disclaimer to the start of each episode (as requested by the complainant): ‘This is a comedy that features some dramatisation and the stories are told from James’ perspective, based on his recollections.’
• Made ‘significant edits’ to the programme, removing: the two statements found to be in breach; comments which contained potentially identifying information, including references to curling and the Olympics; some other comments referring to the complainant; and the blurred images of the complainant. Statements have been edited as follows (emphasis added to the dialogue that has been removed):
• Episode 1
  • ‘if this guy was my dad I’d be quite happy for him to disown me like my real one’
• Episode 2
  • ‘and your most notable [ex], the man you were with the longest was my dad. He represented New Zealand in the Winter Olympics for Curling, so at least we knew where he was every four years. In one nail-biting game, he was able to secure New Zealand the tenth place. Out of ten. So go dad.’
  • ‘fucking hell. My first thought was to reach out to my dad, however he was not keen to be a part of the show. Or my life in general. I had to look elsewhere.’
  • ‘we didn’t have enough memory in the camera to record all of Janet’s anecdotes sparked by her exes, but I still needed answers from my dad. However, like coming last in the Winter Olympics, I was the last place in people my dad wanted to talk to’
  • ‘where’s my child support?’ ‘spent it on curling gear, but I do have the latest state-of-the-art broom, the Nimbus 2000’
  • ‘Perfect. Please, dad I know I’m only three years old, but I’ve been around long enough to know that whānau is the most important thing in this crazy world. If you leave, it could cause me a lot of psychological damage. I might even become so deranged that I make a TV show about you. Please stay’
  • Later, words ‘curly’ and ‘curling’ bleeped (‘get out of here you curly-haired curling fuck.’)
• Episode 3
  • ‘well if there’s one thing dad taught me, it’s that wives and children are disposable’
• Episode 4
  • ‘that’s quite good. I actually project a lot on my real father so, you could be a good replacement’ ‘I don’t think I can live up to that’ ‘oh it’s a pretty low bar’
• Episode 6
  • ‘I promise to support you even if you take up an embarrassing sport like curling’
• Provided comment from the production company, explaining the series was never intended to draw attention to or ‘undermine or shine a light on James’ father – James was telling stories from his childhood and neither James nor the production designed anything to encourage people seeking out James’ father’; the premise and focus of the programme is finding James’ mum a man, and references to his father were only to give context as to why.

[7]  In light of the importance of freedom of expression, and as TVNZ considered many of the aspects complained about were ‘undisputed facts’ or presented as James’ perspective, in a comedic context, TVNZ did not uphold the remainder of the complaint. In summary, under each standard TVNZ submitted:

Accuracy

• The programme is clearly comedic and as such is not subject to the requirements of this standard (which is designed to regulate factual material in news, current affairs and factual programmes). It considered the issues raised were best addressed under the privacy and fairness standards.

Privacy

• It accepted the complainant was identifiable.
• Some of the issues raised are subjective and the complainant and James have different versions of events; the complaints process is not the appropriate avenue to establish ‘the facts’ or disprove a particular viewpoint.
• It noted both the complainant’s right to be treated properly in terms of programme standards / the importance of adhering to programme standards, and James’ right to freedom of expression.
• Applying this ‘two-lens test’ to the content complained about, and having regard to comments from the production company, and the statements in the complaint, TVNZ considered the remaining points in the complaint (beyond the child support point found to be in breach) were either facts about the complainant leaving the family home and subsequent visitation, which were not disputed, or clearly James’ opinion on ‘subjective facts’.
• It noted the programme was clearly comedy, with a particular focus on one person’s perspective.
• It also noted the material included in the programmes has been used by James in other live stand-up comedy and is in the public realm.
• Overall, TVNZ concluded while it may be uncomfortable for a parent to hear their child saying publicly that they considered their parent was absent in their life, it did not consider the type of statements complained about would be highly offensive to an objective reasonable person in the complainant’s shoes.

Fairness

• Referring to James’ mother Janet as ‘Janet Mustapic’ in the title of Episode 4, titled ‘Janet Must-a-pic Her Son a Man’ was a play on the title of the programme. There was no negative inference or criticism of the complainant in this; it simply referred to the premise of the episode.
• With respect to the alleged inaccuracies in the programme, as discussed under privacy, applying the ‘two-lens test’ to information which was not disputed (the circumstances of the complainant leaving the family home, visitation rights etc) and ‘given the acknowledged context of a comedy programme’, James’ comments were not unfair and ‘it [was] not reasonable to expect that comment from [the complainant] on this issue would be included in the series’. No breach of fairness was identified in these comments.

[8]  Responding to the complainant’s referral to the Authority, TVNZ made further submissions as follows:

• TVNZ reiterated it had upheld the complaint and made significant edits to the programme and added the disclaimer the complainant requested.
• As the initial complaints were clear regarding which sections of the programme the complainant was concerned about and the remedies expected, TVNZ did not consider it necessary to contact the complainant further to discuss the remedies.
• The complainant ‘has the viewpoint that his opinion is the accurate version of events, however as some of the comments which he complains about from the programme are expressions of, and presented as, opinion there is no “accurate version”. The material which remains in the edited programmes is clearly opinion and is consistent with the facts as they are stated in the complaint, and by the programme makers.’
• The complainant ‘expresses that he would like to have been consulted in the making of the series, this is not something which can be expected. James Mustapic is an established comedian, and this series is clearly presented as his work and his opinion. It is reasonable to expect that a comedian can express his opinion on his life, relationships, childhood and parents. Indeed, these are often some of the central themes of comedy.’
• TVNZ provided statements from James Mustapic and the production company, again emphasising that the programme was James’ opinion and ‘recollection of my childhood, and the show is from my perspective’, and reflected how he felt at the time (very unhappy).

The relevant standards and guidelines

[9]  We agree with the broadcaster that the privacy and fairness standards are most relevant to the complainant’s concerns and have focused our decision accordingly.

[10]  The privacy standard¹ states broadcasters should maintain standards consistent with the privacy of the individual. It aims to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public.²

[11]  There are typically three criteria for a breach of privacy:

• Whether the individual whose privacy has allegedly been interfered with was identifiable.³
• Whether the broadcast disclosed private information or material about the individual over which they had a reasonable expectation of privacy.⁴
• Whether the disclosure of information was offensive to an objective reasonable person.⁵

[12]  The fairness standard⁶ states broadcasters should deal fairly with any individual or organisation taking part or referred to in a broadcast. The purpose of this standard is to protect the dignity and reputation of those featured in programmes. Individuals and organisations have the right to expect they will be dealt with justly and fairly and protected from unwarranted damage. In assessing fairness, this right is weighed against broadcasters’ right to freedom of expression and their role in disseminating information in the public interest.⁷

[13]  We have had regard to the following guidelines in this case:

• Guideline 8.1: A consideration of what is fair, and the threshold for finding unfairness to an individual or organisation, may take into account the following factors:
  • the nature of the content (e.g. news and current affairs, political content, factual, dramatic, comedic or satirical)
  • the source of the content (e.g. whether the content was locally produced by or on behalf of the broadcaster, or sourced overseas)
  • the nature of the individual or organisation (e.g. the threshold for finding unfairness will be higher for a public figure, politician, or organisation familiar with dealing with the media, as opposed to an ordinary person with little or no media experience; whether the individual or organisation is based in New Zealand or overseas)
  • whether the programme would have left the audience with an unfairly negative impression of the individual or organisation
  • whether any critical comments were aimed at the participant in their business or professional life, or their personal life
  • the public significance of the broadcast and its value in terms of free speech
  • the target and likely audience, and audience expectations
  • whether the programme was live or pre-recorded
  • the vulnerability of the individual.
• Guideline 8.2: Participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution, except where justified in the public interest, or where their participation is minor in the context of the programme.
• Guideline 8.4: If a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before the broadcast. What is ‘fair and reasonable’ will depend on the circumstances.

[14]  The accuracy standard⁸ states broadcasters should make reasonable efforts to ensure news, current affairs, or factual content is accurate in relation to all material points of fact and does not mislead. As James Must-a-pic His Mum a Man was clearly a comedy programme, rather than a news, current affairs or factual programme, the accuracy standard does not apply in this case, and we have not addressed it further in this decision. We consider the complainant’s concerns about inaccuracies in the programme are more appropriately dealt with as matters of fairness (and in one instance, privacy).

Our analysis

[15]  We have watched the whole broadcast series, and read the correspondence listed in the Appendix.

[16]  When we consider a complaint about broadcasting standards, our starting point is to recognise the importance of the right to freedom of expression, which is protected by the New Zealand Bill of Rights Act 1990. Our task is to weigh the right to freedom of expression and the value of the programme, against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the resulting limit on the right to freedom of expression is demonstrably reasonable and justified in a free and democratic society.⁹

[17]  In this case, the right to freedom of expression encompasses both the broadcaster’s right to offer the content and the audience’s right to receive it, as well as James Mustapic’s right to creative expression, to present his experiences and perspectives in the manner he chooses, and to use those for comedic entertainment purposes. Humour and satire are generally recognised as protected forms of speech on which society places value.

[18]  The harm alleged to have been caused is to the complainant’s privacy interests, and his right to fair treatment and to be protected from undue harm to his dignity or reputation. The broadcaster has already acknowledged this harm in respect of two statements in the programme.

[19]  The questions we have considered are whether the broadcaster took appropriate and sufficient action in response to those breaches, and whether any other aspects raised in the complaint resulted in harm that outweighed the right to freedom of expression.

Privacy

[20]  We first considered whether we agreed with TVNZ’s decision under the privacy standard.

[21]  The broadcaster accepted the complainant was identifiable, and we agree. Although the complainant’s name was not used, and images of him were blurred, the programme referred to him being a curler and specifically that he ‘represented New Zealand in the Winter Olympics for curling’ and came tenth one year, with reference to a screenshot from a Wikipedia page about the complainant. Additionally, as noted by TVNZ, Mustapic is a distinctive last name and a prominent feature of the programme; Dan Mustapic is the only New Zealand curler with that name; and searching either ‘James Mustapic dad’ or ‘Mustapic curling nz’ immediately comes up with results for the complainant.

[22]  We also agreed overall with TVNZ’s assessment of the programme content against the privacy standard.

[23]  Although it was dramatised as part of a comedic reenactment, the implication the complainant failed to pay child support or spent it on other things for himself was in the nature of private information. A person’s financial obligations (specifically via Inland Revenue) are matters one could reasonably expect to remain private and confidential. We also agree this disclosure would be highly offensive to an objective reasonable person – primarily because it was not true. Past decisions of this Authority confirm that personal, intimate or sensitive details about a person, even if false or disputed, can carry the quality of private information.¹⁰

[24]  We then turn to consider the remainder of material in the programme that either referred to the complainant or could be interpreted as referring to him.

[25]  References to Mustapic being an Olympic curler, and in one year competing in a team that came tenth place out of ten teams, are publicly available information and therefore not private (and the complainant does not appear concerned about the disclosure of this information, beyond its contribution to identification of him).

[26]  We considered whether the disclosure of personal family matters from James’ perspective and expressed in James’ own words, regarding James’ relationship with his father and his lack of a proper father figure, amounted to information about which the complainant had a reasonable expectation of privacy.

[27]  TVNZ maintained the comments were James’ subjective opinion, presented in a comedic context, based on his own perspective and experiences. It also submitted some of the aspects identified by the complainant were ‘undisputed facts’ (e.g. the complainant had not lived in the family home since James was around three, and that James decided not to see him anymore at around the age of 12). In TVNZ’s view, the complainant considers his own opinion of events is accurate, while James’ is inaccurate – rather than being private information.

[28]  Having considered both parties’ arguments, and previous Authority decisions, we concluded there was no further breach of the privacy standard or potential harm to the complainant’s privacy interests that outweighed the right to freedom of expression. Factors leading us to this view include:

• Viewing the series as a whole, the references to the complainant were not a dominant feature (although, as we have found under fairness, they were important in giving context for the programme’s premise).
• Most of the comments relating to the complainant were clearly presented as James’ subjective experience rather than disclosing private facts, e.g., 'I grew up without a dad’, ‘I’ve never had a proper father figure in my life'.
• The context of the programme as a late-night comedy programme following a well-known New Zealand comedian supports this (as opposed to a factual programme or in a live radio context – as in the past cases considered by the Authority¹¹).
• The broadcaster submitted James’ experiences of his father have formed the basis for his comedic material previously and are therefore ‘in the public realm’.
• As noted by the broadcaster it is common for comedians to draw on such experiences and key figures in their life for comedic material, and to exaggerate or dramatise those experiences for comedic effect. Their ability to do this is protected by their right to freedom of expression and creative licence (within the boundaries of the standards).

Fairness

[29]  We understand the complainant’s concerns under this standard to be:

• The information about him in the programme, as far as his involvement in James’ life, was inaccurate and therefore unfair (e.g. the programme implied he was an absent and uninvolved father).
• He had no prior knowledge of the programme (having ‘found out about it from advertising like everyone else’) and was not contacted to verify statements made about him, nor asked to take part (as stated in the programme).
• The complainant also took issue with the implication he ‘abandoned’ James at age three. We note the word ‘abandoned’ was not used (although that may have been the impression created by some of the comments – discussed below).
• The complainant also noted Janet’s name is Janet Millichamp and she has never gone by the name Mustapic. We are satisfied this did not give rise to any unfairness to the complainant. The title of one episode was Janet Must-a-pic Her Son a Man, a play on the title of the series. Janet was otherwise credited in all episodes as Janet Millichamp.

[30]  Looking first at TVNZ’s decision under the fairness standard, we agree the implication the complainant did not pay child support and spent it on other things, and James’ statement that he reached out to his father but he ‘did not want to be involved in the show or his life in general’ were not true and therefore unfair to him.

[31]  We went on to consider whether the programme was otherwise unfair, or the complainant was treated unfairly by the broadcaster. Assessing the factors outlined in guideline 8.1 to the standard (set out above at paragraph [13]) to determine what would be ‘fair’ in the particular circumstances of this case, we noted:

• The nature of the content. The programme was a pre-recorded satirical/comedy programme (meaning there was more opportunity to ensure fairness, compared with a live broadcast environment). The programme was a late-night comedy programme with an adult target audience, fronted by a well-known New Zealand comedian. Comedy audiences expect that comedians will draw on their own experiences and figures in their lives for comedic material, and that their presentation of those may be exaggerated for the purpose of humour (which differs from expectations of a news or factual programme).
• Whether the content was produced locally or overseas. The content was locally produced (meaning the broadcaster has greater control over and ability to ensure fair treatment of local participants).
• The nature of the individual (there is a higher threshold for finding unfairness to a public figure). The complainant may have been a public figure or in the public eye in the past due to his sporting involvement and competing in the Olympics. However, at the time this programme went to air the complainant would more reasonably be described as ‘an ordinary person with little or no media experience’.
• Whether the programme would have left the audience with an unfairly negative impression of the individual or organisation. We consider viewers overall would be left with a negative impression of the complainant and his involvement in James’ life. We are not in a position to determine whether that impression was ‘unfairly negative’, although we do know the complainant disputes James’ presentation of some facts and events. Some of James’ comments about the complainant were particularly emotive and critical of him personally, for example that he set ‘a low bar’ for finding a replacement father figure, he ‘disowned’ James, that James didn’t trust Janet to find him a man as ‘she did date my dad’ and making fun of his sports career. Although the word ‘abandoned’ was not used in James’ descriptions of his father leaving, some viewers may have taken that interpretation.
• Whether any critical comments were aimed at the participant in their business or professional life, or their personal life. As above, James’ comments in the programme were critical of both the complainant’s curling career, and his personal attributes and failings as a father.
• The public significance of the broadcast and its value in terms of free speech. As we have said, humour and satire typically carry high value, however comments that were particularly critical of the complainant likely carried less value.

[32]  In these circumstances and given the personal and critical nature of comments made about the complainant and the potential for the programme to adversely affect him or his reputation, we would go one step further than the broadcaster’s decision. In addition to it being inaccurate (and therefore unfair) to suggest the complainant had been approached, and refused, to take part in the programme, in the interests of ensuring fair treatment we consider the complainant should have been contacted and informed prior to the broadcast of the nature of the programme and his involvement in it. The complainant said in his complaint that he found out about the programme ‘like everyone else’, from advertising. That was unfair, in our view.

[33]  Guideline 8.2 states participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution, except where justified in the public interest, or where their participation is minor in the context of the programme. Although they did not dominate the episodes, and they were more prominent in some episodes than others (especially the first broadcast, Episodes 1 and 2), the comments about James’ father were an evident theme of the programme: they were central to explaining the premise of the show – why James was looking for a man for his mum, and a father figure for himself. Given this, we do not think the complainant’s participation was so ‘minor’ that the broadcaster did not need to inform him.¹²

[34]  We are not suggesting that in every case where a comedian draws on figures from their life for humour, it will be necessary to inform those people as a courtesy – the guideline is clear in providing a threshold of something more than ‘minor’ participation. Further, referring to others or making light of them or their character will not always mean they are identifiable, be unfairly negative or critical, or carry the potential to adversely affect them. Informed participation is, though, a core principle under the fairness standard where there is a potential for harm to an individual’s reputation or dignity, as we consider was the case here.

[35]  We are also not suggesting that the broadcaster was required in this case to give the complainant a fair and reasonable opportunity to comment for the programme.¹³ Fairness guidelines recognise different types of programming may impact what is ‘fair’ in each case – comedy will be treated differently to, for example, a news or current affairs programme. We do not think the audience would have expected to hear James’ father’s response or defence, in the context of James presenting his perspective and experiences in a humorous way.¹⁴

[36]  However, informing the complainant would have at least made him aware of the programme prior to broadcast, giving him a chance to respond or make any objections known to the broadcaster, and given him an opportunity to raise it with colleagues or others prior to it going to air. Depending on his response, the broadcaster could also then have considered whether any adverse comments about him should remain or be edited out – as it has now done.¹⁵ We do not consider this places an unreasonable or unjustified limit on the broadcaster’s or James’ right to freedom of expression, for the reasons outlined above.

Action taken

[37]  The next question is whether the action taken by the broadcaster appropriately remedied the harm under the privacy and fairness standards. In making this assessment, we consider the severity of the conduct, the extent of actual or potential harm that may have arisen and whether the action taken appropriately remedied the alleged harm.¹⁶

[38]  On referring the complaint to us, the complainant expressed dissatisfaction that TVNZ did not contact him during the production of the programme and that they did not contact him as part of the redress process. He also noted there was no public redress or apology from TVNZ regarding the breach of his privacy.

[39]  As outlined above at paragraphs [5]-[6], TVNZ has: acknowledged two breaches; apologised to the complainant; taken steps to prevent any ongoing or repeated harm through significant edits made to/comments removed from the online episodes; and added a disclaimer to each episode as requested by the complainant, making it clear the programme comprises James’ personal opinion. TVNZ has, in later submissions, advised the complainant was not spoken to or asked for further comment on his original complaint or the remedies provided because he was very clear about the specific parts of the programme that concerned him and the remedies he expected.

[40]  We are satisfied the actions taken by TVNZ adequately address the breach of the privacy standard. Indeed, we note the significance of the level of editing of the programme undertaken by TVNZ – which went well beyond the two statements TVNZ accepted breached standards. This provides some remedy and prevents ongoing harm to the complainant’s reputation.

[41]  We note there has been some media coverage of the original complaint and TVNZ’s decision, initiated by the complainant.¹⁷ To date, there has been no public acknowledgement by TVNZ of the breaches, which we consider would contribute towards remedying potential damages to the complainant’s reputation arising from the broadcasts. On this basis, we uphold the complaint the action taken by TVNZ was not sufficient to address the harm caused to the complainant by the broadcaster’s breach of the fairness standard – notwithstanding the steps it has taken to prevent ongoing or repeated harm.

For the above reasons the Authority upholds the complaint that the action taken by Television New Zealand Ltd regarding the broadcast of James Must-a-pic His Mum a Man between 7 and 22 March 2024, having upheld the complaint under Standard 8 (Fairness) of the Code of Broadcasting Standards in New Zealand, was insufficient.

[42]  Having upheld one part of the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989.

[43]  In determining whether orders are warranted and the type of order to impose, we consider the following factors: 

• the seriousness of the breach and the number of upheld aspects of the complaint 
• the degree of harm caused to any individual, section of society or the audience generally 
• the objectives of the upheld standard(s) 
• the attitude and actions of the broadcaster in relation to the complaint (e.g. whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated the breach and any harm caused) 
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters 
• past decisions and/or orders in similar cases. 

[44]  Drawing from our findings above, we do not consider any order is warranted in this case:

• We consider publication of our decision (and, given earlier public exposure of the complaint, likely further media coverage) is a sufficient and appropriate remedy to publicly notify the breaches and remedy potential harm to the complainant’s reputation arising from unfair treatment. It will also give guidance to TVNZ and other broadcasters on our expectations concerning informed participation under fairness requirements, for individuals who may be adversely affected by references to them in comedy programmes.
• Given the programme is no longer publicly available in its original form, we do not consider a broadcast statement on television, or publication of a statement against the programme on TVNZ’s website, would be appropriate.
• TVNZ has accepted breaches of standards and taken significant steps to remedy them and prevent ongoing or future harm to the complainant. It has ensured the original broadcast content found to be in breach is no longer available to the public. In these circumstances we do not consider any further punitive response or order for costs would be justified.
• The Broadcasting Act 1989 does not give the Authority power to award compensation to complainants for fairness breaches.
• Nor is compensation for breach of privacy an available remedy, given our finding that TVNZ’s response to upholding one aspect of the privacy complaint was sufficient, and we have not found any further breaches of privacy.

Signed for and on behalf of the Authority

Susie Staley
Chair
2 September 2024

Appendix

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

1  Dan Mustapic’s formal complaint to TVNZ – 4 April 2024

2  TVNZ’s decision on the complaint – 3 May 2024

3  Mustapic’s referral to the Authority – 14 May 2024

4  TVNZ’s further comments – 3 July 2024

5  Mustapic’s further comments – 4 July 2024

6  TVNZ’s confirmation of no further comment – 8 July 2024

¹ Standard 7, Code of Broadcasting Standards in New Zealand
² Commentary, Standard 7, Code of Broadcasting Standards in New Zealand at page 19
³ Guideline 7.2
⁴ Guideline 7.3
⁵ Guideline 7.3
⁶ Standard 8, Code of Broadcasting Standards in New Zealand
⁷ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
⁸ Standard 6, Code of Broadcasting Standards in New Zealand
⁹ Introduction, Code of Broadcasting Standards in New Zealand at page 4
¹⁰ For example, Hill and Radio One, Decision No. 2013-074
¹¹ As above. See also, NH v Radio Virsa [2022] NZHC 2412, and LN and Mediaworks Radio Ltd, Decision No. 2016-016
¹² As above
¹³ Guideline 8.4
¹⁴ In this respect we note the Authority’s finding in Hill & Knowlton (NZ) Ltd and Television New Zealand Ltd, Decision No. 2001-027 that ‘in the overall context of a satirical series [Havoc and Newsboy’s Sell Out Tour 2], it may well have been inappropriate to invite [the named company about which allegations were made] onto the programme’ (notwithstanding aspects of the programme were in the nature of news and current affairs).
¹⁵ See also the case of Johnson and Television New Zealand Ltd, Decision No. 2017-055
¹⁶ See, for example, Muir & Knight and Radio New Zealand Ltd, Decision No. 2024-008 at [23] and Lerner and MediaWorks Radio Ltd, Decision No. 2021-091 at [9]
¹⁷ See Joanna Wane “Comedian James Mustapic’s father accuses TVNZ of privacy breach” NZ Herald (online ed, 19 April 2024), Joanna Wane “Comedian James Mustapic’s father demands apology after TVNZ admits privacy breach” NZ Herald (online ed, 29 July 2024)