BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Popetown – animated comedy set in a fictional Vatican City – allegedly in breach of good taste and decency, unfair and denigratory

Findings
Preliminary findings – Authority applied TVNZ v VoTE approach to New Zealand Bill of Rights Act – Authority must consider whether finding a breach of standards would impose unreasonable limitation on free speech

Standard 1 (good taste and decency) – contextual factors favour broadcaster – public interest does not require finding a breach of standards simply because broadcasts lampooned Catholicism – not upheld

Standard 6 (fairness) and guideline 6g (denigration) – high threshold in light of protection given to satire in 6(g)(iii) – threshold one of vitriol or hate speech – fact that offence caused of itself insufficient to find breach of standard – programmes not realistic as complainant alleged – not upheld

Standard 6 (fairness) – satirical programmes would only be unfair in exceptional circumstances – characters and plots absurd and farcical – not intended to represent reality – not upheld

This headnote does not form part of the decision.

Broadcast

[1] Three episodes of the animated cartoon Popetown were broadcast on C4 at 9.30pm on 29 June, 6 July and 20 July 2005. The series was set in a fictional Vatican City (called Popetown), and featured a young priest called Father Nicholas, a group of corrupt cardinals and a child-like “Pope” character.

[2] “Trapped” was broadcast on 29 June. The storyline involved the character Sister Marie giving the “Pope” a purple “papal bull” energy drink, whereupon he develops “windy pops”. The “Pope”, Father Nicholas and Sister Marie become trapped in the catacombs under Popetown. As a side plot, a chimpanzee goes missing from the zoo and Father Bosch, the animal-fixated priest, seems to be responsible.

[3] “Possessed” was broadcast on 6 July 2005. In this episode, Sister Marie and Father Nicholas think that the “Pope” is possessed because he is levitating, speaking in a strange voice and vomiting. It transpires that the “Pope” has accidentally swallowed some bees. In another storyline, the Cardinals discover a wonder cream that makes the user young and beautiful and decides to market it to lepers.

[4] “A Family Affair”, broadcast on 20 July 2005, involved Father Nicholas’ mother visiting Popetown and having an affair with a Swiss Guard.

Complaints

[5] Bishop Denis Browne, on behalf of the New Zealand Catholic Bishops' Conference (NZCBC), complained to CanWest TVWorks Ltd, the broadcaster, that the episodes breached Standard 1 (good taste and decency) and Standard 6 (fairness). It specifically nominated guidelines 6a, 6b, 6f and 6g.

[6] The NZCBC said that the Catholic community placed great importance on the office of the Papacy and the person of the Pope, the integrity of the church, the sanctity of the sacraments and respect for its doctrines. It stated that the church’s doctrines and standards were not matters for “cheap humour”.

[7] The complainant wrote that all members of the New Zealand community who were committed to God and the Christian faith believed that respect for their institutions, beliefs, liturgy and culture were the corollary of good taste, decency and fairness.

[8] The complainant maintained that Catholic and other Christian communities did not exist to provide easy targets for “snide commentary” and “denigration masked as humour”. It alleged that the episodes of Popetown complained of, and the “whole scheme, atmosphere and intent of the series” was a calculated and deliberate insult to the Catholic faith.

[9] The NZCBC said the programme insulted the institutions of the Catholic Church in a manner which no other sector of society would be expected to tolerate. It suggested that a similar programme based on the Islamic or Jewish faiths would not be tolerated.

[10] Further, the complainant alleged that the absence of good taste and decency and fairness in the Popetown series caused calculated and deliberate offence. It considered that this offence was exacerbated by the stream of innuendo regarding misconduct and deviance, greed, and lack of social skills, intellect and hygiene. It considered that the programme was not a “satire upon the imaginary”, but purported to depict a real Pope and the real institution of the Vatican.

[11] The NZCBC cited numerous examples from the three episodes to support its complaint.

Standards

[12] CanWest assessed the complaint under Standards 1 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide

Standard 1 Good Taste and Decency

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guidelines

6a  Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

6b  Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

6f  Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.

6g  Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:

i)   factual, or

ii)  the expression of genuinely held opinion in news, current affairs or other factual programmes, or

iii)  in the legitimate context of a dramatic, humorous or satirical work.

Broadcaster's Response to the Complainant

[13] In its response to the complainant, the broadcaster noted that each episode in the Popetown series started with a student working on a cartoon at the fictional St Nicholas Senior School. CanWest considered that as the cartoon was drawn specifically from the perspective of a teenaged boy, it was unsurprising that the cartoon was irreverent.

[14] The broadcaster compared Popetown to other cartoons series such as bro’Town, Beavis and Butthead and The Simpsons, which were similarly irreverent. It said the opening scene of Popetown set up the expectation that the programme was not a satirical look at the Catholic Church, but a more distorted view from the perspective of a teenaged boy. The characters he drew were “caricatures and exaggerations and the jokes are ones that a teenaged boy might enjoy”.

[15] CanWest noted that Trapped and Possessed were both rated PGR, because they contained some material that was more challenging than could be expected of a G-rated cartoon. It stated that in this context, the language and depiction of the characters in Popetown would be readily understood as satire, and expected that the more mature viewers of PGR programmes would be able to understand that a cartoon was not a depiction of reality. It also noted that A Family Affair was rated Adults Only (AO), because of some of the sexual material in the programme.

[16] CanWest observed that all the episodes of Popetown screened at 9.30pm on a Wednesday night. Because of this late screening time, and the fact that material included in the programme was not explicit, it contended that no warning was required.

[17] The broadcaster stated that although a programme was told from the perspective of a teenaged boy, it could nevertheless be aimed at a more mature audience. It noted that the likely content was indicated by the rating, time of screening and the use of warnings.

[18] CanWest said that because of the cartoons of the same genre listed above (including bro’Town and The Simpsons), New Zealand viewers were used to the type of humour shown in these shows – for example fart and faeces jokes, sexual humour and a “general disrespect for authority”. It considered that the content of Popetown was not surprising or particularly challenging in this context. The broadcaster addressed the complainant’s specific concerns in respect of each episode in turn.

[19] In respect of Standard 1 (good taste and decency), it observed that Popetown’s treatment of characters such as tourists, animals and disabled orphans was intended as humour and not a commentary on the actions of the real Catholic Church. It further stated that Popetown did not comment on any of the controversial real life issues facing the church. For example, CanWest asserted, no commentary was made on clergy sexually abusing children, which was a concern facing the Catholic Church. If the intention of Popetown was to belittle the church, the broadcaster maintained, such disturbing material would have been included.

[20] Accordingly, the broadcaster concluded that Standard 1 had not been breached in any of the three episodes. It considered the average viewer of cartoons of this nature would have expected the content and perspective of the storyline.

[21] In respect of Standard 6 (fairness), the broadcaster contended that no viewer would equate the childish pogo-stick riding Popetown “Pope” with the real Catholic pontiff. It did not agree with the complainant that the sacraments, members and institutions of the church had been insulted. Popetown was fictitious and clearly distinguishable from real life, it argued.

[22] CanWest maintained that Popetown was not intended to be viewed as reality, and that it would be clear on viewing the programme that the tone and premise of Popetown bore little relation to the reality of the Catholic Church.

[23] It further stated that guidelines 6a, 6b and 6f did not apply to the programme, as they were intended to ensure that news, documentary and current affairs programmes did not distort facts or treat people unfairly. It noted that Popetown did not deal with actual people or events.

[24] In respect of guideline 6g, CanWest considered that the content of Popetown was shown in the “legitimate context of a humorous and satirical work” and accordingly did not denigrate Catholics. It was of the view that no individual or group reputation was blackened by the programme. CanWest did not uphold the complaint as a breach of Standard 6.

Referral to the Authority

[25] Dissatisfied with the broadcaster’s response, the NZCBC referred its complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

[26] The complainant reiterated its view that Popetown breached standards relating to good taste and decency and fairness. It did not accept that the programmes were based on the perspective of a teenaged boy and were therefore not literal depictions of the real Catholic Church or the real Pope. The complainant maintained that if cartoons of the same genre had depicted other prominent political or religious figures, there would be a “considerable public reaction”. It considered that the argument that the cartoon was merely a fantasy in the mind of a teenaged boy carried little weight.

[27] The NZCBC noted that overseas broadcasters had deemed the series “too risky” to screen, and questioned why C4 had “failed to understand the very cogent reasons” for this decision. It reiterated that the programme was offensive rather than “challenging”, as the broadcaster had labelled it, because of its “inherent unpleasantness”. It considered that the material was offensive regardless of the method of its delivery, whether by cartoon or photography.

[28] Further, it maintained, the broadcaster’s statement that Popetown was told from the perspective of young teens, while being aimed at an adult audience, was a contradiction in terms. It said that Popetown was “adult-themed and nuanced to a more savvy, street-wise audience”. The complainant considered that this offended against normal ideals of good taste and decency, and was an unfair depiction of a world wide organisation such as the Catholic Church.

[29] The complainant did not accept the broadcaster’s statement that Popetown was not set in the Vatican, but was merely a fictional setting bearing some resemblance to the actual Vatican City. It stated that the high degree of realism with which the setting was created established a “high degree of connection” between the programme’s setting and the real Vatican.

[30] The NZCBC strongly disagreed with the broadcaster’s assertion that the “Pope” in Popetown, depicted as a childish pogo-stick riding figure, was clearly distinguishable from the real figure of the Pope. The complainant considered that Popetown depicted a “beloved public figure” as an “obnoxious child”.

[31] The complainant reiterated its complaint in respect of the storyline involving the group of cardinals selling beauty products to lepers, alleging that it amounted to “tasteless mockery of the disabled”.

[32] The complainant considered that CanWest’s argument that paedophilia was not depicted in Popetown was irrelevant to its complaint. It considered that the material on the subject of bestiality was equally as damaging to the Catholic community.

[33] The NZCBC disputed CanWest’s interpretation of Standard 6. It stated that the Code did not say that Standard 6 applied only to documentaries or live footage, but that it applied to “any person or organisation referred to”. It was of the view that this clearly included the Pope, Cardinals, Catholic Church and its members.

[34] The complainant also noted that the right to freedom of expression was not limitless, stating that broadcasters were not free to “impugn, ridicule, belittle, traduce or malign” real people and institutions without evidence or offering a right of reply.

Broadcaster’s Response to the Authority

[35] CanWest had nothing further to add in response to the complainant’s referral.

Complainant’s Further Submissions

[36] In its further submissions, the complainant canvassed four main issues:

• the application of the New Zealand Bill of Rights Act 1990 (the “BORA”)
• the correct interpretation of Standard 1 (good taste and decency)
• the correct interpretation of the denigration guideline, and in particular:
  • the extent to which satire is a defence to an allegation of denigration
  • the special consideration that should be afforded to religious sensitivities in the area of denigration
• the correct interpretation of Standard 6 (fairness).

Application of the New Zealand Bill of Rights Act 1990

[37] The NZCBC noted that the Authority’s practice was to determine the application of the broadcasting codes with references to sections 4, 5, 6 and 14 of the Bill of Rights Act.

[38] It considered that the approach of the Authority was to give “great weight” to section 14 of the Act, with particular reference to section 5 of the Act, as that section was affected by sections 4 and 6 respectively. The complainant submitted that this approach was incorrect in light of the decision of the High Court in TV3 Network Services v Holt ("Holt").¹

[39] In Holt, the complainant noted, the judge held that the Authority was not required to undertake a section 5 analysis – whether any proposed limitation on freedom of speech is reasonable – when applying the broadcasting standards to a particular complaint.

[40] The complainant considered that the clear inference from the judge’s decision was that in terms of the interface between the BORA and the standards, the Authority should address the validity of the standards. If the standards survived scrutiny, the complainant wrote, it was the responsibility of the Authority to apply the standards to the complaint before it; it could not “avoid that responsibility” by referral to the BORA.

[41] The NZCBC referred to previous decisions about other Popetown episodes (Decision Nos 2005-096 and 2005-097). It argued that the Authority had been wrong in those decisions when it had taken the right to freedom of expression as a starting point, and asserted that that right was fundamental to a democratic society. The complainant also noted that the Authority considered that section 5 of the Act allowed the Authority to restrict this freedom only where such a restriction was reasonable and justifiable in a free and democratic society.

[42] It submitted that in light of Holt, this approach was incorrect.

Good taste and decency

[43] The complainant submitted that the programmes were calculated to cause offence, and that Catholics, as well as many other Christians would likely be offended by the “attacks which the programme makes on [Catholics’] culture, theology, institutions and persons that they value”.

[44] The NZCBC also submitted that the time of broadcast, and the programmes’ target audience were irrelevant in determining the issue of good taste and decency; it submitted that the test was what was acceptable to a “reasonable cross section of potential viewers”.

[45] Expanding on the relevance of the programmes’ target audience later in the submission, the complainant concluded:

It is suggested that in this case the programme was broadcast on a channel that is aimed at the 15 to 19 demographic and well known for its challenging youth culture programming. This roughly translated suggests that it is perfectly appropriate to denigrate people or institutions to teenagers or young adults in a way that is offensive to every other demographic, who if they do not like it can turn the programme off, and that there is something special about teenagers and young adults that insulates them from denigration, requirements of good taste, and requirements of decency….

Denigration

[46] The complainant submitted that “whichever way you look at it, the programme denigrates the Catholic Church, its theology and institutions and in particular the office and person of the Pope”. It also questioned the degree to which the purported satirical nature of the programme could save it from breaching the standard.

[47] The complainant submitted that in its previous decisions, the Authority had been “moving perilously close to an assertion that an argument that a programme is satirical overrides any considerations of fairness, good taste and decency, on the grounds of freedom of comment”. It submitted that this position was not sustainable, notwithstanding the Bill of Rights Act.

[48] Taking this argument even further, the NZCBC concluded:

… an attempt at humour or satire is no defence to an allegation of either unfairness or denigration within the framework of Standard 6.

[49] The complainant pointed out that the United Kingdom broadcasting regulator, Ofcom, had acknowledged the difficulties that arose when greater freedom was given to denigrate religion compared to other areas of concern. It submitted that matters of religion were highly sensitive, and argued that the Authority should give:

… explicit recognition to the very clear fact that special circumstances exist in connection with matters of religious denigration and that it is in the public interests that sensitivity must be exercised in this area.

Fairness

[50] The NZCBC submitted that fairness could not be equated simply with denigration, and considered that Standard 6 also required a broad assessment of the fairness of a broadcast. It considered that this was the case whether the programme that was the subject of a complaint was a news broadcast or a “dramatic, humorous or satirical work”.

[51] The complainant stated its concern that the Authority favoured an approach which encouraged a lack of fairness. If the Authority approached the issue with “one eye on public opinion”, it asserted, a list of “legitimate and illegitimate” targets would emerge.

Responding to CanWest

[52] The complainant accepted CanWest’s view that Popetown bore little relation to the reality of the Pope and the Catholic Church. However, it stated, it was the perception that was at issue. It considered that the programme was based on the premise that Popetown was a satirical, artistic representation of reality.

Broadcaster’s Response to Further Submissions

[53] In its response to the further submissions, CanWest noted that the Authority had already dealt with four separate complaints in respect of Popetown (Decisions 2005-096, 097, 111, 128).

[54] It submitted that while none of the episodes previously complained about were the subject of this complaint, the previous decisions were still relevant as they considered the applicability of Standards 1 and 6 to Popetown.

[55] CanWest asserted that a complainant who refers a formal complaint to the Authority may not expand the basis for its formal complaint. It submitted that the NZCBC’s referral was confined to the original complaint and the broadcaster’s response to it, and that the Authority should not consider additional issues raised subsequently.

[56] Noting the complainant’s reference to the Holt decision, CanWest also observed that other relevant High Court decisions existed – Hooker v Television New Zealand Ltd,²TV3 Network Services Ltd v ECPAT³ and Television New Zealand Ltd v Viewers for Television Excellence.⁴

[57] CanWest submitted that the approach to the BORA adopted by the court in the VoTE case (which specifically referred to Holt) was the most appropriate for the Authority to adopt. It noted that the court in VoTE concluded that the Authority must consider whether each decision it makes unreasonably limits freedom of expression, in accordance with the section 5 BORA “reasonableness assessment”.

[58] CanWest submitted that to uphold the present complaint alleging a breach of Standards 1 and 6 would unjustifiably limit the broadcaster’s right to impart, and the viewer’s right to receive, animated satirical comedy in a free and democratic society.

[59] CanWest also submitted that context was relevant to where any “line” was drawn. It noted that the guidelines to Standard 1 gave examples of context, and that guideline 6g to Standard 6 also specifically referred to context. It submitted that an assessment of context was of overarching significance when interpreting the requirements of the standards.

[60] It noted that as a specialist tribunal it was the Authority’s task to determine what elements were relevant to context, and what significance context ultimately had in determination of code breaches. CanWest reiterated what it considered to be the relevant contextual factors:

• the time of broadcast
• the type of programme
• the target audience
• the use of warnings
• the programme’s classification.

[61] It wrote that these factors were all relevant to whether the requirements of Standards 1 and 6 were met.

[62] CanWest accepted that a general audience would find the programme “unpalatable”. It noted, however, that C4 provided accurate programme information to allow potential viewers to make informed choices. Accordingly, it maintained, C4 had positioned itself as a ”niche provider” to a narrow target audience and ensured, with warnings and programme classifications, that viewers understood the nature of the programme to be screened.

[63] In the context in which the programme screened, the broadcaster considered that it was unlikely that a significant number of the target audience would be disturbed or offended by the programme. CanWest maintained that the programme was an animated, fictional adult cartoon, and was not unfair to the Pope or the Catholic Church, or denigratory to Catholics.

Complainant’s Further Correspondence

[64] In its response to the broadcaster, the complainant asserted that there had been a substantial change in circumstances since its initial formal complaint in July 2005. This was a reference to the controversy which had occurred over the newspaper publication of cartoons depicting the Prophet Mohammed.

[65] The complainant contended that the Popetown broadcast and the cartoons were “exactly” the same sort of denigration, but asserted that Popetown was “a great deal more extreme in the nature of its offence”.

[66] The NZCBC considered that the political and economic consequences of the cartoons controversy, as well as CanWest’s planned broadcast of an episode of the animated series South Park, which Catholics also considered offensive, illustrated why the identification of the line between media freedom and the public interest was required. It considered that the Authority should urgently consider whether religious beliefs required special protection.

Broadcaster’s Response to Memorandum

[67] The broadcaster asserted that neither the issue of the cartoons nor the planned South Park episode was relevant to whether the three television programmes that were the subject of the complaint by the Bishops contravened broadcasting standards.

[68] CanWest reiterated its position that the complainant’s referral was confined to the terms of the original complaint and the broadcaster’s response.

Complainant’s Final Submissions

[69] In its final submissions, the complainant stated that during the period of the complaints process, a “significant shift” had occurred in what it considered to be the context of the complaint. It suggested that the broadcaster’s programming arrangements and target market were not the only relevant contextual factors. It contended that the public interest had become a relevant contextual factor.

Process adopted by Authority

[70] The NZCBC asserted that it was important to determine how far the right to free speech could be taken when the rights and interests of others were at stake. It suggested that a distinction might exist between the right of the news media to convey news or information, and the capacity of the media to provide entertainment, amusement or comment through the use of humour or satire.

[71] Turning to the broadcaster’s response to its further submissions, the complainant raised a number of points.

Previous decisions of the Authority

[72] While the complainant acknowledged that previous Authority decisions should be given some weight, it argued that, given the subsequent controversy over the Mohammed cartoons, the Authority should review the robustness of its previous determinations. It considered that the present matter amounted to an “accumulating offence”.

[73] The NZCBC said that the broadcaster’s intention to broadcast the South Park programme, which it considered to be denigratory, was also relevant. It considered that this compounded the offence caused by the Popetown episodes.

Status of the further submissions

[74] Turning to the broadcaster’s assertion that a complainant is confined by the terms of the original complaint and the broadcaster’s response to it, the complainant contended that no evidence was advanced for that proposition, and that it appeared that no such authority existed.

[75] The complainant submitted that s10 of the Broadcasting Act 1989 provided that the Authority’s right to determine the procedure in considering complaints was “effectively absolute”, and was unfettered by any considerations other than natural justice.

[76] It considered that the Authority was entitled to choose the method and extent to which it could hear, and determine, complaints. The complainant contended that the only requirement of the Authority was relevance, and that the further submissions were highly relevant to the Authority’s consideration.

Application of the New Zealand Bill of Rights Act 1990

[77] In respect of the application of the BORA, the complainant stated that it preferred the reasoning of the High Court in Holt. However, it accepted that the approach taken by the court in VoTE was preferred by the Authority.

[78] In light of the VoTE decision, the NZCBC wrote, the Authority should apply a reasonableness assessment. This assessment should ask whether it was reasonable, in view of the content and intention of the programmes, to restrict the right to freedom of expression on the basis that broadcasts caused hurt or distress to a third party because of denigration.

[79] It submitted that any reasonableness test should take into account the extent and nature of the offence, the number of parties affected and the intent of the broadcaster.

Issue of context

[80] Finally, turning to the issue of context, the complainant argued that the concept of “context” went beyond the time of broadcast, type of programme, target audience, warnings and classification.

[81] The complainant wrote that the airways were “open to all”. Thus, it contended, it was incorrect to claim that the only relevant contextual factor was the niche youth channel on which Popetown was broadcast. The complainant alleged that the issue went beyond matters of good taste or good manners. It considered that the issue was one of “calculated offence through the … purported exercise of … humour”.

[82] The NZCBC considered that the broadcaster’s position was that, as a media outlet, it had the right to insult and offend. It noted that the issue in this case was not the right of the public to receive information. The complainant considered the issue was more properly framed as whether the media had a form of special privilege in respect of satire and humour.

Authority's Determination

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

Preliminary issue

[84] At the outset, for the avoidance of doubt, the Authority records that it considers neither the publication of the newspaper cartoons depicting the Prophet Mohammed, nor CanWest’s broadcast of the South Park episode depicting a bleeding statue of the Virgin Mary, to be relevant to the decisions at hand. While both those controversial incidents raise issues of the same generic nature as Popetown, the only task for the Authority in the present case is to assess whether the three episodes complained of met the nominated broadcasting standards. That is a decision that can be taken only on the facts of each case.

Procedural issue

[85] As a preliminary matter, the Authority addresses CanWest’s submission that, following referral to the Authority, the complainant expanded on its complaint. CanWest submitted that the complainant’s referral should be confined to the original complaint and the broadcaster’s response to it. It argued that the Authority should consider only those arguments that formed part of the initial formal complaint.

[86] The Authority does not accept this submission. While clearly the submissions made by the complainant’s lawyer following referral of the complaint to the Authority were lengthy, they only canvassed the application of standards that had been originally complained about – good taste and decency, and fairness, including denigration.

[87] The Authority has often stated that complainants cannot raise new standards when referring a complaint to the Authority. But this principle does not prevent complainants from making more detailed arguments in respect of the standards that have already been raised. That is what the complainant has done in the present case and the Authority accordingly concludes that it must consider all of the complainant’s submissions.

Application of the Bill of Rights Act

[88] The first issue the Authority must determine is the application of the Bill of Rights Act. The complainant initially submitted that the Act has no application to the Authority’s task of applying the relevant broadcasting standards to the facts of the present complaints. In support of this position, the NZCBC relied on the judgment of Justice Hansen in TV3 Network Services Ltd v Holt.⁵

[89] Section 5 of the BORA states:

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[90] In Holt, Hansen J observed that section 5 did not apply to the Authority’s consideration of each specific complaint. The Authority was not therefore required, every time that it determined a complaint, to assess whether any limitation imposed by its decision was reasonable in accordance with section 5.

[91] Hansen J’s observations in this respect were not part of his formal decision (and were therefore “obiter dicta”). Therefore, the decision was based on other grounds.

[92] This same issue was considered again by the High Court in 2004, in Television New Zealand Limited v Viewers for Television Excellence (VoTE).⁶ The NZCBC acknowledged this decision in a later submission.

[93] In VoTE, TVNZ had appealed a decision of the Authority that TVNZ had breached broadcasting standards by failing to include a warning before a news item that contained graphic and distressing footage. One of the grounds for the appeal was that the Authority had misapplied the requirements of the Act in coming to its decision. Unlike Holt, therefore, the judge in VoTE (Justice Wild) was required to consider the application of section 5 of the Act as a key element of his decision.

[94] Wild J concluded that the Authority was obliged to test its decisions against the reasonableness requirement in section 5 of the Act. He acknowledged that Hansen J had come to a different conclusion in Holt, but stated:

With respect, I do not agree with [Hansen J’s interpretation]. Even if the standards themselves are unassailable, surely they can be misconstrued so as to produce a non BORA compliant result. … The meaning of the standard adopted i.e. the particular interpretation or application, ought to be justifiable in terms of s5. I believe my view accords with the approach Goddard J took in Society for the Promotion of Community Standards Inc. – Visitor Q HC Wellington CIV 2002 485 238 16 January 2004, and earlier in Society for the Promotion of Community Standards Inc. – Baise Moi HC Wellington CIV 2002 485 235, 11 November 2003.

[95] Wild J concluded:

I consider that the application of the BORA meant that the Authority was required to take into account the right in question (here, section 14 of the BORA) as a mandatory relevant consideration. It had to balance the limit on that right, which was inherent in its decision, against the objective sought to be achieved in the particular case, and it had to be satisfied as to the reasonableness of that intrusion. In short, a s5 type analysis. …

In my view, the act which attracts the BORA obligations is the determination by the Authority of complaints pursuant to the Broadcasting Act. It is that act of decision making which is implicitly qualified by the requirement not to perpetrate unreasonable limits on rights.

[96] Wild J also noted that this approach had also received “at least implicit approval” from Chambers J in TV3 Network Services Ltd v ECPAT,⁷ which was also decided after Holt.

[97] The Authority concludes that it must follow the reasoning of Wild J in the VoTE case. As noted above in paragraph [91], Hansen J’s comments in Holt were only obiter observations, whereas in VoTE, Wild J’s Bill of Rights Act conclusions were essential to the decision. The Authority is accordingly bound by VoTE in relation to this issue, but not by Holt.

[98] For these reasons, the Authority concludes that it must consider the impact of the right to free expression as set out in section 14 of the Bill of Rights Act, and assess whether any limit on this right imposed by its determination of a complaint is reasonable and demonstrably justifiable in a free and democratic society.

Good taste and decency

[99] In its original complaint to CanWest, the NZCBC referred to a large number of aspects of the three programmes that it considered offensive. These included:

• the sexual predilection for animals of one of the characters, Father Bosch
• the stereotype of the alcoholic priest
• the sexual references and interaction between Father Nicholas’s mother and the captain of the Swiss Guard
• the scatological humour throughout the programmes
• the mocking of lepers in one episode
• the “Pope” saying he could see up Sister Marie’s skirt in one episode
• the mocking of the sacraments of the Catholic Church
• the mocking of the office of Pope.

[100] Putting aside, for the moment, the fact that the broadcasts lampooned Catholic institutions and practices, the Authority is of the view that none of the above examples, and in fact nothing in the broadcasts at all, threatened standards of good taste and decency. Had the programme been given a more neutral subject and setting, there would have been little to complain about.

[101] Two of the programmes were classified PGR, and the remaining one AO, and all three were broadcast at 9.30pm. The sexual references were mild and inexplicit, and of a nature that fell within the PGR and AO classifications given to the programmes. While the scatological humour was childish, it also was mild and within the boundaries of the programmes’ classifications. Further, C4 is primarily a music television channel which targets the 15–29 age group, and has distinct “youth-culture” programming. Taking into account the likely expectations of the Popetown audience and in light of the other contextual factors, the Authority concludes that the programmes did not breach standards of good taste and decency.

[102] In the Authority’s view, the complainant’s concern is not that the programmes’ content was so overt or explicit as to offend against notions of good taste and decency. The complainant’s fundamental concern instead appears to be that this programme breached standards of good taste and decency because it was deeply offensive to Catholics to see their religious institutions, and in particular a beloved leader, portrayed in such an irreverent manner.

[103] Therefore, the complainant is asking the Authority to find that the programmes’ lampooning of Catholic institutions was so offensive that it must, as a matter of public interest, have breached standards of good taste and decency.

[104] The Authority accepts that there may be material that could potentially offend good taste and decency, irrespective of the context in which it was broadcast. Any material that was objectionable in terms of the Films, Videos and Publications Classification Act 1993, for example, would inevitably do so. Eroticised sexual violence would also severely test standards of good taste and decency, irrespective of its context; in Decision No. 2004-007 the Authority upheld such a complaint, despite the programme being broadcast at midnight on a pay-television channel. In such cases, the Authority accepts the possibility that the public interest would require that a breach be found, irrespective of the target audience’s expectations or other contextual factors.

[105] In effect, the complainant is asking the Authority to conclude that Catholicism is a similarly sensitive area and that as a matter of public interest, lampooning its institutions as Popetown did should not be permitted.

[106] The Authority cannot conclude that this is so. It accepts that the members of the NZCBC are deeply offended by the programmes – as are other Catholics who have seen them. But the right to satirise institutions within society falls squarely within a broadcaster’s freedom of expression. This is especially so when the institution involved is a global one, sufficiently robust to withstand lampooning of its practices and beliefs.

[107] While there may be situations where satire does offend good taste and decency – for example, where the programme was particularly vicious or vitriolic – the Authority considers that the extremely fanciful episodes of Popetown complained of do not fall into that category. It would be an unreasonable limitation on the right to free speech to interpret the requirement of good taste and decency so as to prevent the satirical or humorous treatment of religion in this manner.

[108] The Authority accordingly does not uphold the good taste and decency complaint.

Denigration

[109] The NZCBC’s submissions on the issue of denigration raised three main issues:

• First, the Authority must draw a line in respect of what constitutes denigration. The NZCBC submitted that while the Authority has from “time to time attempted to determine where the line is”, it has shown a “marked reluctance to identify the geographic position of that line”, and has demonstrated a lack of consistency in the area.
• Second, the relevance of satire. The NZCBC rejected the idea that Popetown was legitimate satire, and in any event concluded that “an attempt at humour or satire is no defence to an allegation of either unfairness or denigration within the framework of Standard 6”.
• Finally, the sensitivity of matters of religion. The NZCBC concluded that it is in the public interest that sensitivity be exercised in respect of religious denigration, and submitted that the Authority should explicitly recognise that special circumstances exist in respect of the issue.

[110] In light of these arguments, the NZCBC argued that the programmes clearly met the threshold for denigration in guideline 6g of the Free-to-Air Code.

[111] The Authority rejects each of these arguments. In respect of the first point, the test for denigration has been settled for many years; the issue is whether a broadcast blackens the reputation of an identifiable class of people. There is no more precise way of defining the cases that will meet the threshold; each case must be decided on its individual facts.

[112] In relation to the second point, the Authority accepts that Popetown was satirical; while neither the humour nor the subject of the satire was to the NZCBC’s liking, this does not alter the nature of the programme. While the NZCBC argued that the satire was not “legitimate” in terms of the guideline, the Authority does not agree. As noted above in the discussion on good taste and decency, there is no lawful basis on which to conclude that satire or humour should not be broadcast merely because it targets religious matters.

[113] Further, the Authority notes that a programme’s humorous or satirical intent is a highly relevant factor in assessing an allegation of denigration. Guideline 6(g)(iii) is explicit in this respect – the standard is not intended to prevent the broadcast of material offered in the legitimate context of a dramatic, humorous or satirical work. This does not mean that drama, humour or satire are given unchecked freedom; their identification by guideline 6(g)(iii) simply reflects the fact that democratic societies place a high value on these forms of artistic expression, and limitations should be imposed only in special circumstances.

[114] Finally, the Authority rejects the idea that New Zealand’s broadcasting codes require that special consideration be given to matters of religion. While the complainant asserts that religion is an issue of great sensitivity, the Authority is not persuaded that in modern New Zealand society it is of any greater sensitivity or importance than issues of race, colour, sexual orientation, or political belief. While it should be afforded equal protection, it should not be given special consideration.

[115] The Authority has also noted the NZCBC’s submissions regarding Ofcom’s review of the broadcasting codes in the United Kingdom, and the consequent discussion around issues of religion. That discussion, however, took place in the context of section 319 of the United Kingdom’s Communications Act 2003, which specifically requires special protection for religious programming in Ofcom’s radio and television codes. New Zealand has no equivalent provision either in legislation or in the broadcasting codes.

[116] In light of these findings, the Authority determines the denigration complaint.

[117] As noted in its previous decisions concerning Popetown, the starting point for the Authority in considering a complaint such as this is the broadcaster’s right to freedom of expression, protected by the BORA. This right is fundamental to a democratic society. In light of section 5 of the BORA, the Authority may restrict this freedom only where such limitation is reasonable, and “demonstrably justified in a free and democratic society”.

[118] Clearly the complainant is genuinely offended by the depictions of the Catholic Church and its leaders. But, in light of the right to free expression, the fact that offence has been taken – even if it is widespread offence – is not of itself sufficient justification for finding that a broadcast has breached broadcasting standards.

[119] Further, as noted above, guideline 6(g)(iii) states that the standard is not intended to prevent the broadcast of material which is in the legitimate context of a humorous or satirical work. The right to satirise, dramatise and laugh at society’s institutions is the very essence of free speech. Because democratic societies place a high value on these forms of expression, the Authority has set a high threshold before such material will be found to have amounted to denigration. A satirical or humorous work would have to move towards the realm of hate speech or vitriol before the threshold would be crossed.

[120] A key plank of the NZCBC’s argument regarding denigration was that the programmes were highly realistic, and were thus a direct attack on the church. The Authority rejects this argument. It agrees that Popetown’s setting was obviously based on the Vatican, and that its characters were readily identifiable as caricatures of the Pope, Cardinals, nuns and priests. However, the programme was not “realistic” in any meaningful sense.

[121] The programme was animated, and the characterisation, the characters’ actions and the plots were all farcical and absurd. The “Pope” was portrayed as spoilt and childish, Father Nicholas as bumbling, Sister Marie as innocent and unworldly, and the Cardinals as wealth-obsessed. The Authority finds that no-one could reasonably have believed that they were intended to represent reality within the Vatican or the wider church.

[122] For these reasons, it is the Authority’s view that the programmes did not breach the fairness standard by denigration. While clearly they lampooned aspects of Catholicism, the church, and its leaders, they were not vitriolic and did not incite hatred or contempt of Catholics or Catholicism; the absurd comedic nature of the satire further reinforces this view.

[123] By way of a useful contrast, the Authority refers to its Decision No. 2004-193, in which it upheld a complaint from members of the Exclusive Brethren about a talkback radio host’s comments. The host had referred to the Exclusive Brethren as, among other things, “probable child abusers” who should be bred out of the human race, “sort of a Mongrel Mob” and “very bad citizens”. In upholding the complaint, the Authority concluded that the host’s comments amounted to a “vitriolic tirade”.

[124] The Authority observes that the nature of the commentary in that case was of a distinctly more serious nature than the satire in Popetown.

[125] To uphold a complaint about the broadcast of these episodes of Popetown would unreasonably limit the broadcaster’s right to free expression. Such satirical treatment of society’s institutions – whether they be religious, political or cultural – is simply part and parcel of living in a Western democracy which values freedom of expression. While the Authority acknowledges that such freedom is not without limits, it finds that the line was not crossed on this occasion. It does not uphold the denigration complaint.

Fairness generally

[126] The NZCBC also submitted that a programme could be unfair without being denigratory. It submitted that irrespective of denigration, the programme was clearly unfair; in its original complaint it referred in particular to guidelines 6(a), 6(b), 6(f) and 6(g) (guideline 6(g) has been addressed under the discussion of denigration).

[127] At the outset, the Authority records its view that guidelines 6(a), 6(b) and 6(f) are not relevant to the complaint. Guideline 6(a) refers to the editing of programmes to ensure they are a true reflection of events. This guideline applies primarily to factual programmes, and has no application in the case of a fictional animated programme that does not report real events.

[128] Guideline 6(b) states that contributors to, and participants in, programmes should be informed of the reason for their contribution and participation. Again, this is aimed at factual programmes. It does not apply to fictional satire, which does not involve the participation or contribution of real people.

[129] Guideline 6(f) states that broadcasters should recognise the rights of individuals – particularly young people – not to be exploited, humiliated or unnecessarily identified. Again, because the programme was fictional, it did not exploit, humiliate or identify any individual.

[130] Although these guidelines are not relevant to the complaint, the Authority has nonetheless considered the complainant’s general submission that the programmes could be unfair, even if they were not denigratory.

[131] Despite the submissions of the NZCBC to the contrary, the Authority concludes that different considerations exist when applying the fairness standard to, on the one hand, a news, current affairs or factual programme, and, on the other, a fictional work.

[132] Most allegations of unfairness involve news, current affairs or factual programmes. In the majority of cases, complainants are concerned that a participant involved in a current issue, either an individual or an organisation, has been portrayed in a way that unfairly reflected negatively on them. This may occur by:

• inaccurately or incompletely reporting facts surrounding an incident (see, for example, Decision No. 2004-203)
• making untrue implications or allegations (see, for example, Decision Nos. 2004-204, 2005-049)
• not allowing an affected person reasonable opportunity to respond to allegations (see, for example, Decision Nos. 2004-115, 2005-115).

[133] These situations revolve around claims that a broadcaster has unfairly portrayed a real situation. The Authority considers it reasonable for the standards to require that broadcasters, when discussing factual situations, present the relevant facts accurately and fully, and to allow people to respond to allegations made against them. Such requirements do not unreasonably limit broadcasters’ freedom of expression.

[134] That is very different, however, from interpreting the fairness standard to prevent the broadcast of fictional programmes which lampoon high profile institutions. The right to satirise, dramatise and laugh at society’s institutions is the very essence of free speech and the Authority considers that, in most cases, limiting a broadcaster’s right to air such programmes would be unreasonable and contrary to the Bill of Rights Act.

[135] In the view of the Authority, it would only be in exceptional circumstances that a work of fiction would be unfair to a named individual or organisation. Because the characters and plots in these episodes of Popetown were so absurd and farcical, the Authority finds that no-one could reasonably have believed that they were intended to represent reality within the Vatican or the wider church.

[136] Accordingly, the Authority finds no basis for finding that these episodes of Popetown were unfair. It declines to uphold the fairness complaint.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
4 May 2006

Appendix

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

1. Bishop Denis Browne’s initial Letter to CanWest – 1 July 2005
2. CanWest’s response to initial letter – 7 July 2005
3. Bishop Denis Browne’s further correspondence – 20 July 2005
4. NZCBC formal complaint to CanWest – 22 July 2005
5. CanWest’s initial response to the formal complaint – 26 July 2005
6. CanWest’s response to the formal complaint – 22 August 2005
7. NZCBC’s referral to the Authority – 16 September 2005
8. CanWest’s response to the referral – 26 September 2005
9. NZCBC correspondence – 4 November 2005
10. NZCBC’s correspondence – 8 November 2005
11. NZCBC’s further submissions – 15 December 2005
12. NZCBC’s further correspondence – 9 February 2006
13. NZCBC’s memorandum for the Authority – 8 February 2006
14. CanWest’s response to the further correspondence – 15 February 2006
15. NZCBC’s further submissions – 23 February 2006

¹(2002) PDF1.5 MB 6 HRNZ 759

 ²TVNZ v Hooker PDF1.09 MB, unreported, Auckland High Court, 13 June 2002, AP138/01 & 602, Smellie J

³TV3 Network Services v ECPAT NZ Inc PDF1.3 MB [2003] NZAR 501

⁴TVNZ v Viewers for Television Excellence PDF1.96 MB [2005] NZAR 1

⁵(2002) PDF (1.5 MB) 6 HRNZ 759

⁶[2005] PDF (1.96 MB) NZAR 1

⁷[2003] PDF (1.3 MB) NZAR 51