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 the action taken by NZME in response to a breach of the fairness standard during an episode of Heather du Plessis-Allan Drive was insufficient. The complaint related to an interview with a 16-year-old climate activist about the Schools Strike for Climate movement, and the group’s key demands. During the interview, the interviewee admitted she had recently travelled to Fiji, despite one of the group’s demands being a ban on ‘unnecessary air travel’. This resulted in the host hysterically laughing at, and teasing the interviewee for over a minute. The broadcaster conceded in light of the interviewee’s age and potential vulnerability, the segment breached the fairness standard. The Authority determined it too would have found a breach of the fairness standard, but in the circumstances considered the action taken by the broadcaster was sufficient to address the breach. The Authority also found the segment was not sufficiently offensive to breach the offensive and disturbing content standard; the complainant’s concerns under the children’s interests standard were better dealt with under fairness; and the discrimination and denigration standard did not apply.

Not Upheld: Fairness (Action Taken), Offensive and Disturbing Content, Children’s Interests, Discrimination and Denigration

The broadcast

[1]  During Heather du Plessis-Allan Drive on 23 September 2022, a 16-year-old climate activist and organiser for Schools Strike for Climate (SS4C) was interviewed by du Plessis-Allan about SS4C’s policies and key demands. Halfway through the interview, du Plessis-Allan raised SS4C’s policy goal of banning unnecessary air travel:

Host:                         How do you ban unnecessary air travel, which is one of your demands? How do you define it? Okay, so I'm going to fly up for a conference. I think that's necessary. Do you think that's necessary?

Interviewee:             No, I do not.

Host:                         How do we ban that? Who's going to be the guy who stands there and goes Heather, no sorry, you’re banned? Who's going to be that person?

Interviewee:             Well, I think that you could have a set of events that would mean that air travel could be necessary for them, for example.

Host:                         So we would have to apply to have, like, approved events to be able to fly for.

Interviewee:             Well, that's one thing that you could look at doing.

Host:                         Am I allowed to go to Fiji? Is that necessary?

Interviewee:             In the current climate crisis, I don't think that that's necessary.

Host:                         When was the last time you were on a plane?

Interviewee:             I'm not sure. Maybe a few months ago, to be honest.

Host:                         Where did you go?

Interviewee:             Fiji.

Host:                         [Interviewee x 2]! Don't you care about the climate, [interviewee]?

Interviewee:             Of course I care about the climate.

Host:                         Not enough. You went to [laughter]. You went to Fiji. [Interviewee]! Come on, mate. Are you serious? [laughter] Are you serious [interviewee x 2]! [Interviewee] are you still there?

Interviewee:             Well, it's pretty ironic, but to be honest, it's not really a trip that I wanted to go on. I can't really get out of it because my parents wanted to go.

Host:                         [Speaking over the interviewee] Why did you go? Why did you go?

Interviewee:             My parents wanted to go.

Host:                         [Interviewee]!

Interviewee:             I didn’t want to go.

Host:                         Are you embarrassed that your parents did that to the planet and then forced you to do it as well?

Interviewee:             Of course I'm not embarrassed.

Host:                         Did you have a terrible time?

Interviewee:             Not really. I didn't have the best time.

Host:                         [Laughter] I'm sorry, mate, listen. You're such a champion. I think you've got a brilliant future ahead of you. Are you doing another strike? [More laughter]

Interviewee:             Yeah. Well, we will look to.

Host:                         Good. I will talk to you again and might get you back on the show. [Laughter], [interviewee] is a School Strike for Climate Wellington organiser. [Laughter]

[2]  After the interview, du Plessis-Allan read out messages from listeners, some stating she had bullied the interviewee, and others finding it a ‘great interview’ for exposing the interviewee’s ‘hypocrisy’.

[3]  Du Plessis-Allan stated:

Now I'm sorry. I am sorry to [interviewee] that that wasn't the best experience she's ever had. However, that was not my fault. That was [interviewee’s] fault. Because [interviewee] told you, you're not allowed to go to Fiji. But then [interviewee] got snapped going to Fiji. Now, I did not expect that [interviewee] went to Fiji, right. I didn't know that. I was just asking a question. And then that's what happened. And then all of a sudden I saw the protest in a completely different light. And the light that I now see the protest in, is, with respect, a bunch of middle-class kids who are doing this for something to do on a Friday… If they want to be treated like adults, they're going to face some adult questions. And that is just what happened. [Interviewee], if you're listening, we really like you and we'll have you back on the show again. You are [a] top-notch, top-notch person. Don't go to Fiji, [interviewee], you're hurting the climate.

The complaints

[4]  Nick Wilson and Alisdair Newton-Wade complained the broadcast breached broadcasting standards:

• Both Newton-Wade and Wilson questioned the truth of du Plessis-Allan’s statement that she did not know of [interviewee’s] trip to Fiji, prior to the broadcast (suggesting rather it may have been an orchestrated ‘gotcha’ moment).
• Wilson argued the broadcast breached the fairness standard due to du Plessis-Allan ‘picking on a 16-year-old climate activist, and publicly ridiculing them for a family trip to Fiji. The girl has since become a target for ridicule by people on twitter for her supposed hypocrisy. The deliberate identification and ridiculing of this young girl is shameful and unacceptable.’
• Newton-Wade complained under the fairness, children’s interests, offensive and disturbing content, and discrimination and denigration standards. They said: it was ‘completely inappropriate for a grown woman, and a radio presenter at that, to make a business of mockery of young people’; and they found ‘a grown woman openly mocking a 16 year old pretty distasteful’.

The broadcaster’s response

Fairness

[5]  NZME upheld the complaints under the fairness standard, saying:

• ‘Although [interviewee] is a young person, as organiser and spokesperson of the School Strike for Climate protest it is to be expected she would be more accustomed than other persons of the same age to speaking in public and, by extension, giving media interviews.’
• ‘The host’s reaction… was borne out of genuine surprise and shock’ and she did not know about [interviewee]’s recent air travel; it was not an example of ‘gotcha journalism’.
• Importantly, the host apologised to the interviewee in the segment that followed.
• It rejected the claim the host’s treatment of the interviewee amounted to ‘bullying’.
• Notwithstanding these factors, ‘In view of [the interviewee’s] age and potential vulnerability, and having regard to the above guidelines,¹ both the host and Newstalk ZB acknowledge the embarrassment that the segment may have caused the interviewee, and we uphold [the] complaint under Standard 8 [Fairness]. We apologise to [interviewee] for any harm this may have caused her.’

[6]  NZME also later advised (in response to our request for clarification) that du Plessis-Allan had apologised privately to the interviewee as well as on-air.

Other standards

[7]   NZME did not uphold Newton-Wade’s complaint under the offensive and disturbing content, children’s interests, and discrimination and denigration standards, stating:

Offensive and disturbing content

• The host’s reaction was borne out of genuine surprise and was not premeditated, and while the broadcaster acknowledged the embarrassment the segment might have caused [interviewee], it did not consider it seriously violated community standards of good taste and decency.

Children’s interests

• The codebook defines a child as ‘under the age of 14 years’ (the interviewee was 16), and the commentary to the standard states that it ‘covers children viewing or listening to broadcasts’. If a complaint raises fairness or privacy concerns about a child featured or referred to in a broadcast, it should be dealt with under those standards.

Discrimination and denigration

• This standard only applies to ‘recognised sections of the community’ and does not apply to the treatment of particular individuals such as the interviewee.

The standards

[8]  The fairness standard² protects the dignity and reputation of those featured in programmes.³ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

[9]  The purpose of the offensive and disturbing content standard⁴ is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.⁵ The standard takes into account the context of the programme, and the wider context of the broadcast, as well as information given by the broadcaster to enable the audience to exercise choice and control over their viewing or listening.

[10]  The children’s interests standard⁶ requires broadcasters to ensure children in the audience can be protected from content that might adversely affect them.

[11]  The discrimination and denigration standard⁷ protects against broadcasts which encourage the discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.

Our analysis

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

[13]  As a starting point, we considered the right to freedom of expression. Our task is to weigh the right to freedom of expression (which includes both the broadcaster’s right to offer a range of content and information and the audience’s right to receive it) against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where limiting the right to freedom of expression is reasonable and justified in a free and democratic society, in light of the harm.⁸

[14]  For the reasons outlined below, overall we do not consider any further regulatory intervention or restriction of freedom of expression is justified in this case.

Fairness

[15]  Where the broadcaster has already upheld the complaint in the first instance, our role is to consider whether the action taken by the broadcaster was sufficient to remedy the breach.

[16]  We first considered whether we agreed with NZME’s conclusion that there was a breach of the fairness standard. On one hand, we noted a number of mitigating factors:

• The interviewee, who is nearing the age of adulthood, had voluntarily placed herself in the position of a public figure, as an organiser of SS4C, and lobbying for a particular cause. She voluntarily participated in the interview to speak about SS4C, and as such, could expect to be critiqued and scrutinised over SS4C’s policies (given the significant issues at play).
• The interviewee had previously been interviewed by du Plessis-Allan on SS4C’s protests,⁹ and so had some idea of what to expect.
• While the interviewee was occasionally interrupted by du Plessis-Allan, she was given time to present her views and opinions.
• It is a standard format of talkback shows that the host takes a contrary position to that of interviewees, to generate debate.
• The right to freedom of expression protects the important role of media and individual broadcasters in questioning and testing the validity of statements made by interviewees in broadcasts, particularly on issues of public interest. It is not the media’s role to ensure all interviewees have a positive experience when interviewed.
• Related to this, whether or not du Plessis-Allan knew of the interviewee’s trip to Fiji before the interview, or discovered that via social media, is not an issue of unfairness. It would not be unacceptable or unfair, on its own, if the host did find out in advance – the interviewee could reasonably anticipate and prepare for that, given SS4C’s focus on unnecessary air travel.

[17]  However, there were clearly elements of unfairness to the interviewee and, like the broadcaster, we concluded these led to a breach of the fairness standard overall. The key factors were:

• Despite the interviewee’s role as a climate activist, which meant she necessarily put herself in the public eye and sought publicity to an extent, given her youth she was nevertheless likely to be more vulnerable and less experienced with dealing with this type of interview and strong critique.
• Du Plessis-Allan’s tone was dismissive and condescending throughout the interview, and she spoke over the interviewee multiple times. There was an evident power imbalance, in our view. While young people in the interviewee’s position should not expect to be treated favourably all of the time, nor do we think broadcasters should treat them in a way that risks discouraging passionate young people from speaking up for important causes just because they don’t have the ‘perfect’ answer to every question.
• The questions du Plessis-Allan asked, and the point she was making, could have been achieved without the prolonged, over-the-top laughter. The laughter came across more as mockery than shock, and we felt its continuation, well after it was clear the interviewee had been embarrassed by the segment, was not only rude but transitioned into ridicule.
• Du Plessis-Allan is an experienced journalist and likely to have understood she was shaming and embarrassing the interviewee in the way she laughed at her and spoke to her at the end of the segment. Du Plessis-Allan ought also to have been aware her treatment of the interviewee would likely result in online debate and further ridicule of the interviewee. She could reasonably be expected to moderate her reaction or react more appropriately in these circumstances.
• Du Plessis-Allan’s ‘apology’ to the interviewee on air shortly after, did not appear genuine and was used an avenue for further criticism of the interviewee (including telling her it was ‘her fault’).

[18]  Overall, we found the interview went further than simply critiquing and questioning SS4C’s policies and the interviewee’s alleged hypocrisy, and instead amounted to ridicule of the interviewee, which was unfair.

Action taken

[19]  Turning to the sufficiency of the action taken by the broadcaster in response to the breach, we assessed the severity of the conduct, the extent of the actual or potential harm that may have arisen and whether the action taken appropriately remedied the alleged harm.¹⁰

[20]  We acknowledge there was foreseeable harm in the form of embarrassment in the moment for the interviewee, and further ridiculing/bullying online. The apology on-air did not appear genuine and was used as an opportunity to further mock and criticise the interviewee (including saying it was ‘the interviewee’s fault’).

[21]  The broadcaster has acknowledged and recognised the breach in the first instance, upheld the complaints under the fairness standard, apologised to the interviewee in the decisions which stated ‘We apologise to [the interviewee] for any harm this may have caused her,’ and advised du Plessis-Allan apologised privately to the interviewee as well. 

[22]  Additionally, we note that some of the coverage reacting to the broadcast, including a lengthy piece by the interviewee’s mother,¹¹ gave an effective platform in the interviewee’s defence. Although this is not action taken by the broadcaster, it does significantly reduce the likelihood of any residual or ongoing harm.

[23]  In these circumstances, we concluded no further action is reasonably necessary to address the fairness breach, and we do not uphold the complaints with respect to the action taken by the broadcaster.

Other standards

Offensive and disturbing content

[24]  The offensive and disturbing content standard is typically considered in relation to offensive language, sexual material, nudity and violence, but may also be considered in relation to other content presented in a way likely to cause widespread offence or distress.¹²

[25]  The key question is whether du Plessis-Allan’s comments and interview manner would have caused widespread disproportionate offence or distress, or undermined widely shared community standards, in the context.¹³ We considered the following contextual factors relevant in this case:¹⁴

• It is well established that talkback radio is a robust environment that will often feature provocative debate,¹⁵ and audiences expect that Newstalk ZB, and Heather du Plessis-Allan Drive, will often feature controversial and conservative opinions.¹⁶
• Du Plessis-Allan is renowned for having provocative, controversial opinions.¹⁷ Du Plessis-Allan is described as “assertive, direct and opinionated”, with a “straight down the middle approach”.¹⁸
• Newstalk ZB has an adult target audience.¹⁹
• There was public interest in du Plessis-Allan’s comments which created a heated debate in the ensuing media and social media.²⁰ This included articles and comments that were both supportive of du Plessis-Allan’s interview (for highlighting the inconsistency between the interviewee’s and the wider SS4C’s demands, and the interviewee’s own actions²¹) and critical of du Plessis-Allan, including the article by the interviewee’s mother, which argued du Plessis-Allan’s interview technique and treatment of the interviewee was offensive and amounted to bullying.
• Du Plessis-Allan’s comments and laughter were – according to NZME and du Plessis-Allan – a reaction of genuine surprise and shock.
• Du Plessis-Allan laughed at and berated the interviewee for approximately one minute.
• As a young person, the mocking of the interviewee was arguably more offensive, due to her vulnerability and inexperience, than if du Plessis-Allan had been speaking to an adult.

[26]  We acknowledge that some would consider du Plessis-Allan’s approach to be rude and distasteful. However, the robust nature of talkback radio and audience expectations surrounding Newstalk ZB and du Plessis-Allan mean the threshold for finding a breach under the offensive and disturbing content standard is high.

[27]  We did not consider overall the broadcast was sufficiently offensive to breach the standard or to justify our intervention.

Children’s interests

[28]  Newton-Wade alleged it was ‘distasteful’ and ‘inappropriate’ to hear a grown woman ‘openly mocking a 16-year-old’. The complainant noted the standard is supposed to protect against material in which children or animals are humiliated or badly treated²², and ‘since the minor in question was in fact in the material, it is impossible to assert that she was not exposed to it.’ 

[29]  We acknowledge the complainant’s concerns, however we consider they are better addressed as an issue of fair treatment of the interviewee as an individual.²³ The children’s interests standard is directed at protecting children in the audience from content that might adversely affect them.²⁴ While the standard does consider material in which children are humiliated or badly treated,²⁵ given the context, children were unlikely to be listening or doing so unsupervised,²⁶ and therefore unlikely to be ‘disproportionately disturbed, harmed, or have their physical, mental or social development impaired’ by the broadcast.²⁷

Discrimination and denigration

[30]  Newton-Wade considered it was ‘inappropriate for a grown woman, and a radio presenter at that, to make a business of mockery of young people’. They further advised ‘the presenter would not have similarly targeted an older person, instead choosing to go for a “soft target” of a teenager standing up for a cause she believes in, but with no real media experience.’

[31]  The purpose of this standard is to protect sections of the community from verbal and other attacks, and to foster a community commitment to equality. The importance of freedom of expression means a high level of condemnation, often with an element of malice or nastiness, will usually be necessary to find that a broadcast encouraged discrimination or denigration in breach of the standard.²⁸ The standard does not apply to individuals or organisations, which are dealt with under the fairness standard.

[32]  We did not consider du Plessis-Allan’s treatment of the interviewee and related comments were sufficiently linked with young people generally as a section of the community, to trigger the standard.

[33]  While the interviewee participated in the interview due to her involvement in school protests (which presented the political goals of young people), the element of the broadcast complained about (the treatment of the interviewee with regard to her trip to Fiji) related to du Plessis-Allan’s criticisms of the interviewee’s actions, and alleged hypocrisy as an individual, rather than her status as a young person.

[34]  Du Plessis-Allan did later state if young people like the interviewee ‘want to be treated like adults, they’re going to face some adult questions’, however we do not believe this was sufficient either to link du Plessis-Allan’s criticism of, and laughter at the interviewee with all young people or encourage discrimination against them as a group.

[35]  Further, while perhaps in poor taste and mean-spirited, du Plessis-Allan’s comments were arguably an expression of serious comment, analysis or opinion²⁹ and were made in the context of a serious political discussion. Such expression is protected by the right to freedom of expression and not intended to be prevented by this standard.

[36]  For these reasons we do not uphold the complaint under the discrimination and denigration standard.

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

Susie Staley
Chair
27 February 2023

Appendix

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

Complaint A: Wilson

1  Nick Wilson’s formal complaint to NZME – 26 September 2022

2  NZME’s decision on the complaint – 21 October 2022

3  Nick Wilson’s referral to the Authority – 22 October 2022

4  NZME’s further comments – 7 November 2022

5  NZME confirmation of action taken – 18 January 2023

Complaint B: Newton-Wade

6  Alisdair Newton-Wade’s formal complaint to NZME – 26 September 2022

7  NZME’s decision on the complaint – 21 October 2022

8  Newton-Wade’s referral to the Authority – 25 October 2022

9  NZME’s further comments – 7 November 2022

10  Newton-Wade’s further comments – 25 November 2022

11  NZME’s further comments – 1 December 2022

12  Newton-Wade’s further comments – 2 December 2022

13  Newton-Wade with further comments and confirmation of standards – 15 December 2022

14  NZME with further comments – 16 January 2023

15  NZME confirmation of action taken – 18 January 2023

¹ Guideline 8.9
² Standard 8, Code of Broadcasting Standards in New Zealand
³ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
⁴ Standard 1, Code of Broadcasting Standards in New Zealand
⁵ Commentary, Standard 1, Code of Broadcasting Standards in New Zealand at page 8
⁶ Standard 2, Code of Broadcasting Standards in New Zealand
⁷ Standard 4, Code of Broadcasting Standards in New Zealand
⁸ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁹ Heather du Plessis-Allan “Organiser of School Strike for Climate Wellington addresses WCC’s $5,000 bill” Newstalk ZB (online ed, 14 September 2022)
¹⁰ See, for example, Horowhenua District Council and MediaWorks Radio Ltd, Decision No. 2018-105 at [19]
¹¹ “Heather du Plessis-Allan should be ashamed of how she bullied my daughter” The Spinoff (online ed, 25 September 2022)
¹² Singh and NZME Radio Ltd, Decision No. 2020-089, at [8]
¹³ Commentary: Offensive and Disturbing Content, Broadcasting Standards in New Zealand Codebook, page 8
¹⁴ Guideline 1.1
¹⁵ Guideline 1.2
¹⁶ Day & Moss and NZME Radio Ltd, Decision No. 2018-090, at [21]
¹⁷ As above
¹⁸ Newstalk ZB “Newstalk ZB – Heather du Plessis-Allan Drive” (accessed 12 December 2022) <newstalkzb.co.nz>
¹⁹ Day & Moss and NZME Radio Ltd, Decision No. 2018-090, at [21] and [35]
²⁰ Ireland Hendry-Tennent “Green MP Slams Heather du Plessis-Allan after interview with teen climate activist sparks bullying allegations” Newshub (online ed, 26 September 2022); Mia Sutherland “As a former School Strike 4 Climate organiser, I am all too familiar with ridicule. But this interview surprised me” Stuff (online ed, 27 September 2022); Frank Chung “Mum of climate activist furious after teen daughter mocked in radio interview” News.com.au (online ed, 28 September 2022)
²¹ David Southwell “Outrage as radio star ‘mocks and bullies’ 16-year old climate activist live on air after she awkwardly admits to flying to Fiji for a holiday – and her MUM has weighed in” Daily Mail Australia (online ed, 28 September 2022)
²² Guideline 2.2
²³ Commentary: Children’s interests, Broadcasting Standards in New Zealand Codebook, page 10
²⁴ Standard 2 of the Code of Broadcasting Standards in New Zealand
²⁵ Guideline 2.2
²⁶ Day & Moss and NZME Radio Ltd, Decision No. 2018-090, at [21] and [35]
²⁷ Commentary: Children’s interests, Broadcasting Standards in New Zealand Codebook, page 10
²⁸ Guideline 4.2
²⁹ Guideline 4.2