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 under the discrimination and denigration standard in relation to comments about a celebrity dining at an Indian restaurant on Heather du Plessis-Allan Drive. The complaint alleged comments made by the host were racist, including questioning how a $97,000 bill could be possible at an Indian restaurant and questioning the choice to go there. The Authority acknowledged the comments had the potential to cause offence, but found they did not meet the high threshold required for a breach of the standard.  

Not Upheld: Discrimination and Denigration

The broadcast

[1]  During the 7 June 2022 broadcast of Heather du Plessis-Allan Drive on Newstalk ZB, the host, Heather du Plessis-Allan, discussed Johnny Depp spending $97,000 on dinner at an Indian restaurant to celebrate winning his recent defamation case. The comments included:

When I got told he spent $97,000, what did you think? I immediately thought Johnny's gone to 'The Club' with his mates... Get that image out of your mind, that's not what happened. He went to a curry place. I know, how do you spend $97,000 dollars on a curry place?

…

All the food was accompanied by naans, rice and salad. You'd hope so for $97,000. Johnny Depp then finished off his meal with panna cotta and cheesecake rather than going for a traditional Indian dessert. They accompanied their dinner with a selection of cocktails and rosé champagne. Now I'm thinking that's the cost there, the cocktails and the rosé champagne, because that must be outstanding Indian if they're charging thousands and thousands at a time. I'm guessing they got out the gold bling-bling champagne, but it’s just a kind of a weird setting, don't you think, to be celebrating the biggest thing: the jury gave me back my life, I'm off to an Indian restaurant.

The complaint

[2]  Paul Newton complained that the broadcast breached the discrimination and denigration standard of the Radio Code of Broadcasting Practice:

• ‘[Heather du Plessis-Allan] was discussing Johnny Depp’s choice of restaurant being that if you were to spend $97K would you really do so in an Indian restaurant.’
• The comment was quite ‘demeaning’ of Indian culture and ‘is racially offensive’.
• ‘The inference is that other types of ethnicity are more worthy of such a spend’.
• ‘Her comments were more than casually racist and inferred that Indian restaurants were either not worth the high fees …This implies that Indian restaurants and Indian people should not be paid as much as others’.
• ‘This racist view on [the] worth and value of a people and its cultural offerings is exactly the angle which Heather wished to communicate and was succinctly wrapped up in her final comments.’

The broadcaster’s response

[3]  NZME Radio Ltd did not uphold the complaint:

• ‘The broadcast reflected Heather’s view on Indian food, not on Indian people.’ Therefore it did not refer to a section of the community protected under the Human Rights Act 1993.
• ‘While both “race” (s 21(1)(f)) and “national origins” (s 21(1)(g)) are “prohibited grounds for discrimination” under the Human Rights Act 1993, we do not consider that the Standard can be reasonably expanded to encompass views about a type of food from a particular place, particularly when considering the right to freedom of expression.’
• ‘Heather queried why – and how – Johnny Depp spent $97,000 on Indian food. Her view toward Indian food was not a generalised statement regarding Indian culture, or the Indian people. It was merely her opinion that it would need to be very good Indian food to command a bill at that level. Heather’s opinion on Indian food may be seen as some as rude, but this does not reach the required standard to breach Standard 6.’
• ‘There is nothing in the broadcast that would imply that Heather considers that Indian people should not be paid as much as others, as is suggested by Mr Newton.’

The standard

[4]  The discrimination and denigration standard¹ 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. It protects sections of the community from verbal and other attacks, and fosters a community commitment to equality.²

Our analysis

[5]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[6]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.³ Where discrimination and denigration complaints are concerned, the importance of freedom of expression means that a high level of condemnation, often with an element of malice or nastiness, will be necessary to find a breach of the standard.⁴

[7]  We acknowledge the complainant found comments in the segment offensive. However, the Codebook recognises that comments will not breach the discrimination and denigration standard simply because they are critical of another group, because they offend people, or because they are rude.⁵ 

[8]  In this instance, we do not consider the comments were likely to encourage discrimination against or denigration towards any relevant section of the community. The comments were brief and reflected the host’s surprise at Mr Depp’s large restaurant bill. Guideline 6c of the standard explicitly recognises it is not intended to prevent the broadcast of material that is a genuine expression of comment or opinion, or legitimate humour. The language used, and the tone of the broadcast, were moderate and did not contain a high level of malice or nastiness. Further, the comments did not appear to be gratuitous or calculated to offend.

[9]  We note that context is important in analysing complaints of this nature,⁶ and the following contextual factors were also taken into account in coming to our decision:

• The broadcast was live.
• Audience expectations for the station and programme include the host providing challenging opinions and commentary on current affairs.
• The host:
  (a)  questioned the high prices charged at an Indian restaurant;
  (b)  guessed the cost related to alcohol ordered as it must be ‘outstanding’ Indian to justify the bill; and
  (c)   called an Indian restaurant a ‘weird setting’ for a celebration.

[10]  We acknowledge that some may have found the host’s incredulous reaction to a very large bill at an Indian restaurant offensive. However, due to the contextual factors above, we consider the comments did not carry sufficient nastiness or malice to encourage discrimination or denigration. Therefore, in the circumstances, any harm caused did not reach a threshold outweighing the broadcaster’s right to freedom of expression.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
19 October 2022

   
Appendix

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

1  Paul Newton’s formal complaint – 7 June 2022

2  NZME’s response to the complaint – 5 July 2022

3  Newton’s referral to the Authority – 5 July 2022

4  NZME’s further comments – 21 July 2022

¹ Standard 6 of the Radio Code of Broadcasting Practice
² Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
³ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁴ Guideline 6b
⁵ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁶ Guideline 6d