BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has not upheld a complaint that a radio host’s description of a rugby match between the Blues and the Crusaders as ‘a battle of good versus evil’ breached broadcasting standards. The Authority found that the comment was used to describe a competitive sporting rivalry between the Blues and the Crusaders and in context it was not likely to cause undue distress or harm. The Authority determined that the comment was not unfair to the Crusaders as it was a general comment about the nature of the match, and that there was no identified section of the community for the purposes of the discrimination and denigration standard. The Authority also emphasised the importance of freedom of expression and the value of hearing the authentic New Zealand voice.

Not Upheld: Good Taste and Decency, Fairness, Discrimination and Denigration

The broadcast

[1]  During an episode of The Power Hour commentator Jim Kayes described a rugby match as follows:

Last night in the battle of what I like to call a battle of good vs evil, the Blues went down 11-19 to the Crusaders.

[2]  Later in the episode, snippets from Leslie Murdoch’s commentary from the match were played.

[3]  The episode was broadcast at 9.00am on 26 May 2019 on Newstalk ZB. As part of our consideration of this complaint, we have listened to a recording of the broadcast and read the correspondence listed in the Appendix.

The complaint

[4]  James Newlove complained that the segment breached the good taste and decency, discrimination and denigration and fairness standards of the Radio Code of Broadcasting Standards for the following reasons:

• The ‘evil’ comment was in very bad taste, ‘denigratory’ and lacked any decency, especially in light of recent events in Christchurch.
• The inference that the Crusaders were ‘evil’ was very unfair, to the Crusaders, their supporters and the people of Christchurch.
• Leslie Murdoch made comments later in the programme disapproving of the statement, saying ‘what was all that about’ in relation to the comment.

The broadcaster’s response

[5]  NZME did not uphold the complaint for the following reasons:

 Good taste and decency

• The statement was not made in connection with the Christchurch terror attacks.
• ‘The conflict between “good and evil” is commonly used thematically, and is often representative of opposing viewpoints or indicative of a “big clash”.’
• It is not clear if Jim Kayes was referring to either of the teams specifically as good or evil.
• ‘In fact, Mr Kayes has recently penned a piece regarding his disappointment in the current Blues team’s performance; therefore, it is entirely possible Mr Kayes was referring to the Blues, if that was the intention of his statement.’
• The language did not reach the level that justified restricting the speaker’s freedom of expression.

Discrimination and denigration

• Rugby teams (specifically the Blues and Crusaders) are not a class of persons that the Human Rights Act applies to.
• The statement did not carry the invective required to be considered ‘hate speech’.

Fairness

• The complainant submitted that the people of Christchurch were treated unfairly, but the people of Christchurch were not referred to in the broadcast.
• It was unclear who Mr Kayes was referring to when he used the term ‘good vs evil’ and he was using the term to set the scene.

The standards

[6]  The good taste and decency standard states that current norms of good taste and decency should be maintained, consistent with the context of the programme. The Authority will consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause widespread undue offence or distress.¹

[7]  The discrimination and denigration standard protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.

[8]  The fairness standard states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. A consideration of what is fair will depend on the nature of the programme.²

Our findings

[9]  Freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. We may only uphold complaints where the limitation on the right is reasonable, prescribed by law and demonstrably justified in a free and democratic society.

[10]  In listening to the broadcast, we agree with the broadcaster that reference to a conflict as a ‘battle of good versus evil’ is a thematic statement used to illustrate the rivalry between two sporting sides. Taking into account the tone of the comment and the context of a sporting commentary, we consider that this was an expression used by the host to refer to a sporting clash between two significant teams.

[11]  The Authority has previously recognised that ‘the right to freedom of expression allows individuals to express themselves in the way that they choose, so long as standards are maintained.’³ In a diverse society such as New Zealand, people communicate differently, and there is value in hearing the authentic New Zealand voice in reporting.⁴ That being said, authentic language should not cause harm at a level requiring the Authority’s intervention.

[12]  In this case, we do not consider that the harm alleged by the complainant reached a level which would justify our upholding the complaint and limiting the broadcaster’s right to freedom of expression, and we expand on our reasons for this finding below.

[13]  Mr Newlove submitted that Leslie Murdoch made comments in the broadcast disagreeing with Mr Kayes’ statement. On close listening to the broadcast, we did not discern such comments. Ms Murdoch was only featured in the broadcast when clips of her commentary from the match were played as part of the highlights from the day before. As her comments were from the day before Mr Kayes’ statement, they could not have been made in response to it.

Good taste and decency

[14]  The complainant submitted that, in the context of the March 15 attacks on two mosques in Christchurch, the reference to the Crusaders as ‘evil’ was in bad taste and lacked decency.

[15]  We acknowledge that Mr Newlove understood the comment to be referring to the Crusaders and was concerned about this. As we have noted above, we consider the comment was used to describe a competitive sporting rivalry or clash between the Blues and the Crusaders. We do not agree that the comment was offensive and note that the right to freedom of expression includes the right to make statements which some listeners may not appreciate, provided this does not cause undue harm. The purpose of this standard is to maintain current norms of good taste and decency, consistent with the context of the programme.

[16]  In our consideration of this complaint we found the following contextual factors to be relevant:⁵

• the nature of The Power Hour, a sports news programme targeted at adult listeners, and RNZ National
• the nature of the comment itself, which was used to illustrate the level of rivalry in the game
• the time of broadcast at 8.00am on a weekend, when children might be listening
• the adult target audience and audience expectations of The Power Hour and Newstalk ZB generally.

[17]  In this context, we do not consider the comment would have caused widespread undue offence or distress and do not uphold the complaint under this standard.

Fairness

[18]  The complainant submitted that the Crusaders were treated unfairly by the broadcast. A consideration of what is fair will depend on the nature of the programme (eg, news and current affairs, factual, dramatic, comedic or satirical). Context should also be considered, for example, the public significance of the broadcast.⁶

[19]  Taking into account the factors listed above at paragraph [16], we do not consider that the comment was unfair. Therefore we do not uphold the complaint under the fairness standard.

Discrimination and denigration

[20]  The discrimination and denigration standard applies only to recognised ‘sections of the community’ which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.⁷ The complainant has submitted that the comment denigrated the Crusaders, their supporters and the people of Christchurch.

[21]  However, rugby teams, their supporters and people from a particular geographic location are not recognised sections of the community for the purposes of the standard. The standard only protects against discrimination or denigration of groups based on their sex, sexual orientation, race, age, disability, occupational status or as a consequence of their legitimate expression of religion, culture or political belief.

[22]  Therefore we do not uphold the complaint under this standard.

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

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair
10 October 2019

Appendix

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

1                 James Newlove’s complaint to NZME – 29 May 2019

2                 NZME’s response – 3 July 2019

3                 Mr Newlove’s referral to the BSA – 12 July 2019

4                 NZME’s confirmation of no further comments – 30 July 2019

¹ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
² Guideline 11a
³ Lough and Television New Zealand Ltd, Decision No. 2017-080 at [11]
⁴ Above at [12]
⁵ Guideline 1a
⁶ Guideline 11a
⁷ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15