BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

A complaint regarding a comment made by radio host Chris Lynch in relation to a news report that Whakaari was going to receive a blessing in the wake of the fatal volcanic eruption has not been upheld. The Authority found that considering the relevant contextual factors, Mr Lynch’s comment ‘because that’s going to change everything isn’t it?’ was unlikely to cause widespread undue offence or distress. The Authority also noted that, while the comment had the potential to offend some listeners, comments will not breach the discrimination and denigration standard simply because they are critical of a particular group, because they offend people, or because they are rude.

Not Upheld: Good Taste and Decency, Discrimination and Denigration

The broadcast

[1]  During a segment on Canterbury Mornings with Chris Lynch, host Chris Lynch read out a news report about Whakaari receiving a blessing after the fatal eruption on 9 December 2019. In response to this news report Mr Lynch said, ‘because that’s going to change everything isn’t it?’

[2]  The item was broadcast on Newstalk ZB on 11 December 2019. In considering this complaint, we have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The complaint

[3]  Mary O’Leary submitted the broadcast breached the good taste and decency and discrimination and denigration standards of the Radio Code of Broadcasting Practice for the following reasons:

• It is poor taste to disrespect any religion at any time, let alone at a time of significant tragedy (White Island/Whakaari). Mr Lynch's disparaging comment was being passed off by the broadcaster as being light-hearted.
• ‘Mr Lynch's comment is clearly discriminatory and denigrating towards Maori and their beliefs & customs, irrespective of his opinions and whether the remark was supposed to be light-hearted. It was a thinly veiled contemptuous racist remark, and NZME's attempt to excuse it is concerning.’
• ‘New Zealand is doing a great job of integrating Maori language and culture into our society, these sorts of comments are ten steps backwards and a public broadcaster should know better than to allow such throw away remarks, regardless of perceptions or sweeping generalizations about “target audience”.’
• ‘Having a predominantly white/middle class/aged audience is hardly grounds for allowing comments such as this, be they ”throw away” remarks or not. Zero tolerance of such remarks should be a benchmark of the BSA.’

[4]  In her referral Ms O’Leary raised comments made by Mr Lynch in subsequent broadcasts. Ms O’Leary submitted these comments suggest a pattern of behaviour from Mr Lynch of subtly disrespecting and undermining Māori culture.

[5]  As these comments did not relate to the broadcast complained about they were not considered in our determination of this complaint.

The broadcaster’s response

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

• Newstalk ZB is an adult targeted radio station for 30-64 year olds.
• Chris Lynch is a talk host with well-known strong opinions. 
• Talkback hosts are known for making provocative statements to stimulate robust debate. The BSA has previously stated that audiences expect that Newstalk ZB will often feature conservative and controversial opinions.
• While some listeners may have considered this comment to be somewhat flippant, it was not likely to cause widespread undue offence or distress, or undermine widely shared community standards.
• NZME rejected the complainant’s contention that the remark complained of was ‘passed off as being lighthearted’. NZME submitted that the remark may have been considered by some listeners to be ‘flippant’.
• The discrimination and denigration standard is not intended to prevent a genuine expression of serious comment, analysis or opinion. The audience would understand that the comment complained of was Mr Lynch’s opinion.
• The fact that Mr Lynch’s comment may be offensive or even rude to some people who disagree with his view does not mean that standards have been breached. It is within the host’s right to hold this position and express it.

The relevant standards

[7]  The purpose of the good taste and decency standard (Standard 1) is to protect audience members from broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards.¹

[8]  The discrimination and denigration standard (Standard 6) 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.

Our analysis           

[9]  Our determination of this complaint starts with consideration of the right to freedom of expression and the important role it plays in a liberal democratic society. The right to freedom of expression includes the broadcaster’s right to impart ideas and information and the public’s right to receive that information. This includes the provision and receipt of content that entertains, even if it is not to everyone’s liking. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

Good taste and decency

[10]  When we consider a complaint under this standard, the context of the broadcast is crucial in determining whether current norms of good taste and decency have been maintained.² Factors include the nature of the programme, the target and likely audience, and audience expectations of the programme’s content.

[11]  The relevant contextual factors we have considered in this case include:

• There are audience expectations that NZME will, at times, broadcast controversial or unpopular opinions.
• Talkback radio is a robust, opinionated environment.
• The host of this programme is known for, at times, provocative opinions.
• The comment was brief and not repeated.
• The comment was made in the wake of the Whakaari tragedy.
• Blessings are an important part of te ao Māori.

[12]  Another important contextual factor when assessing comments such as this is the tone and intent of the comment. There was significant discussion and differing opinions amongst the Authority regarding the comment. Members differed in their views as to whether the tone was despairing, in light of the lives lost in the Whakaari tragedy, or flippant and dismissive of the blessing as a cultural or religious practice.

[13]  Regardless of the tone or intent of the comment, we agreed that the comment did not seriously violate community norms of taste and decency. While we recognise that Mr Lynch’s comment may have offended some listeners, considering the contextual factors listed above, specifically the audience expectations and the nature of talkback radio, we found the comment was unlikely to cause widespread undue offence or distress or undermine widely shared community standards. In these circumstances, we do not consider that any potential for harm outweighed the broadcaster’s right to freedom of expression or that the threshold required to justify a restriction on the exercise of this right was reached.

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

Discrimination and denigration

[15]  ‘Discrimination’ has consistently been defined as encouraging the different treatment of the members of a particular section of the community, to their detriment. ‘Denigration’ is defined as devaluing the reputation of a class of people.³

[16]  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 conclude that a broadcast encouraged discrimination and denigration in breach of the standard.⁴

[17]  The contextual factors discussed under the good taste and decency standard are also relevant to this standard.⁵

[18]  We recognise that this comment could be perceived as dismissing a practice that is important to te ao Māori. We also understand that the comment had potential to cause offence. However, comments will not breach the standard simply because they are critical of a particular group, because they offend people, or because they are rude.⁶

[19]  As discussed under the good taste and decency standard, there is a difference in opinion amongst the Authority as to the tone and intent of the comment. However, in any event, we find the comment did not contain the high level of condemnation or malice required to breach the standard.

[20]  Accordingly, we do not uphold the complaint.

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

Judge Bill Hastings

Chair
16 June 2020

Appendix

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

1  Mary O’Leary’s formal complaint – 11 December 2019

2  NZME’s original decision– 16 January 2020

3  Ms O’Leary’s referral to the Authority and supporting letter – 5 February 2020

4  NZME’s response to the referral – 5 March 2020

¹ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
² Guideline 1a
³ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15
⁴ Guideline 6b
⁵ Guideline 6d
⁶ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page16