BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority did not uphold a complaint about an episode of New Zealand Today. The complaint was that an interviewee was treated unfairly, and the segment discriminated against and denigrated the elderly. Noting that comments concerning the interviewee were based on his individual actions and views (rather than his status as ‘elderly’) and that the discrimination and denigration standard is not intended to prevent the broadcast of genuine expressions of comment, legitimate humour or satire, the Authority found no breach of that standard. In the context, the Authority also found the interviewee was not treated unfairly.

Not Upheld: Fairness, Discrimination and Denigration

The broadcast

[1]  An episode of New Zealand Today on 6 May 2021 featured a Woodville man who was convicted of wilful damage after cutting the phallus off a Māori carving. Guy Williams confronted the man at the Woodville Organ Museum he runs. Relevant excerpts of the interview follow:

Williams                       I sat down with Milton, a man who seemed genuinely horrified by a carving with a penis. 

Interviewee                 When I first saw it, I said, whatever is that, has that thing got three legs? Oh, no…To me, it was disgusting. New Zealand law forbids putting indecent stuff in public.

Williams                       But is it indecent, though? It's just a little wooden organ.

Interviewee                 Well…he's squatting like this, you know…And the male organ comes right out and against the whole upper leg.

Williams                       So it was a big organ?

Interviewee                 Grossly exaggerated.

Williams                       …have you tried a technique that I use sometimes called closing my eyes? And what I do is I close my eyelids and then I just look away.

Interviewee                 I tried to cut it off with my pruning saw. So you had to start at one side... sawing and sawing.  This is good wood. I can't finish this tonight. I'm going to bring back my chainsaw in the morning. So it was all done in about five minutes.

Williams                       If you look through the world and you see an advertisement with exposed breasts or you see how sexualised society is, you watch a movie these days. Yeah. Why have you got a problem with, like, a traditional Māori carving...Can you see, though, why Māori might be hurt by this?

Interviewee                 I know some of the locals were. 

Williams                       Because that's their culture and that's their belief system.   

Interviewee                 What they would need would be God's forgiveness. I mean, he made us a pedigree race.

Williams                      Who's the pedigree race?

Interviewee                 We are, the human family…You can't marry your sister.

Williams                      That's a shame, because my sister is hot.

Interviewee                 What? You'll end up marrying and having halfwit children. I mean, this is the problem that God had with his people … My daughter was implying that God was cruel, the way he dealt with Sodom and Gomorrah…

Williams                       My take on this is that you're a very serious person. Do you think sometimes you can see the humorous side in having a carving with a big old schlong? You're in Woodville, you run an organ museum, you're chopping off organs. You can see a bit of humour there or no…What makes you laugh?

Interviewee                 …There is one day in my life that has to be the happiest day of my life. And that's the day the Lord comes. I will be one overwhelmingly happy man. 

Williams                      So that's the day you die.

Interviewee                 Yeah…We will be to him like a bride. 

William                       To be a bride to Jesus.

Interviewee                 Yes.

Williams                      Well, that's what I need in my life. I've got to be gay for Jesus [pause] or go open my heart to Jesus.

Interviewee                 Yeah, good on you.

[2]  The programme continued with Mr Williams attempting to find a solution by creating a statue with a retractable phallus. He returns to the interviewee to demonstrate this feature asking the interviewee if he liked it. The interviewee says little but confirms he does not like the statue.

[3]  The broadcast was classified 16LC (L for offensive language, and C for offensive content).

The complaint

[4]  Mr Olsen originally complained the broadcast breached the good taste and decency, fairness and discrimination and denigration standards. However, having accepted the broadcaster’s decision on the good taste and decency standard, he referred his complaint to us on the latter two standards arguing:

• ‘I simply don't believe that the elderly man and his wife that were interviewed by the producers of this program were sincerely and honestly informed that they were going to be used to poke fun at [and made to] look stupid.’
• The programme discriminated against ‘intelligent elderly members of society and made a mockery of the elderly.’
• ‘I am very concerned at how the elderly are being targeted more and more as the years roll by. Surely the media should be doing their utmost to protect this demographic, not to undermine their value and their stand for decency and moral values.’

The broadcaster’s response

[5]  Discovery did not uphold Mr Olsen’s complaints for the following reasons:

• The discrimination and denigration standard only applies to recognised sections of the community not individuals such as the interviewee.
• ‘Guy Williams travelled to Woodville to investigate the story of [the interviewee] as he was convicted of wilful damage for vandalising a traditional Māori carving.  He was told it was a comedy show and that Guy would be trying to devise less offensive ways of presenting or avoiding depictions of male genitalia. We are satisfied that [the interviewee] was treated fairly and given a fair opportunity to express himself.’

[6]  The broadcaster was also asked to clarify the consent process and advised:

‘The programme is explained to potential participants, the nature of their participation is explained and the participants then sign a written consent if they agree to take part.’

The standards

[7]  The discrimination and denigration standard¹ states broadcasters should not encourage 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. The standard is not intended to prevent the broadcast of material that is legitimate humour, drama or satire.²

[8]  The fairness standard³ protects the dignity and reputation of those featured in programmes.⁴ It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage. A consideration of what is fair will depend on the nature of the programme (eg. news and current affairs, factual, dramatic, comedic or satirical). Participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution.⁵

Our analysis

[9]  We have watched the broadcast and read the correspondence listed in the Appendix.

[10]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up this right 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.⁶

Discrimination and Denigration

[11]  Mr Olsen argues the item encourages discrimination and denigration against the elderly. We agree the elderly are a recognised section of the community for the purposes of the standard. We however do not consider this item encouraged discrimination and denigration of the elderly.

[12]  The interviewee was featured in the programme for his individual actions and views. Any implicit criticism or humour directed at the interviewee was based on these actions and views rather than his status as ‘elderly’. As submitted by the broadcaster, the discrimination and denigration standard does not apply to individuals.⁷

[13]  In any event, the standard is not intended to prevent the broadcast of material that is a genuine expression of comment or legitimate humour or satire.⁸New Zealand Today is an alternative documentary-style programme which offers social commentary and insight into New Zealand's small towns. It uses offence and humour to confront issues. The satire, and humour of such programmes, are valued forms of expression.⁹ This particular segment gave the interviewee a platform to have his say, and revealed the motivations behind his actions. It also highlighted the harm his actions may have caused.

[14]  These were valuable forms of expression and we have identified no potential harm at a level sufficient to outweigh the broadcaster’s right to freedom of expression.

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

Fairness

[16]  Mr Olsen alleged the interviewee (and his wife) were treated unfairly. We acknowledge his concerns and genuine interest in the wellbeing of the interviewees.

[17]   The existence of informed consent is a relevant factor in assessing fairness.¹⁰ Informed consent is provided where the person:¹¹

• is aware he is contributing to the broadcast
• understands the true context and purpose of the contribution
• understands the nature of the consent and its duration
• freely agrees to contribute.

[18]  Having considered the information provided by Discovery, we consider Discovery took appropriate steps to inform the interviewee of the nature of his participation and that he had consented to participating.¹² In particular, we consider it significant that he was advised it was ‘a comedy show’ where ‘less offensive ways of presenting or avoiding depictions of male genitalia’ would be devised.

[19]  Due to the nature of the programme, viewers may be confronted with interviews that may seem awkward, or cause discomfort. Such situations will not necessarily lead to a finding of unfairness, which must be assessed taking account of the nature of the programme and the context.¹³  In this case, we are influenced by the following contextual factors:

• As noted in paragraph [13] above, the programme is an alternative style of documentary programme. It offers valuable social commentary on life in parts of New Zealand with which viewers may be unfamiliar.
• The humour and challenging conversations depicted in the programme are tools used to confront what may be uncomfortable issues.
• There is significant public interest and value in this type of programme.
• This episode offered an insight into the interviewees’ thoughts, motivations and the impact of his actions. The interviewee was approached to explain his act of wilfully damaging the Māori carving. Throughout the programme, he was given the opportunity to present his side of the story, which he did. In our view, he presented not as a vulnerable individual but as a person confident of his convictions.

[20]  In this context, we do not consider the interviewee was treated unfairly.

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

Susie Staley MNZM
Acting Chair
15 September 2021

Appendix

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

1  Tony Olsen’s original complaint – 7 May 2021

2  Discovery’s decision on the complaint – 31 May 2021

3  Mr Olsen’s referral to the Authority – 1 June 2021

4  Discovery’s response to the referral – 10 June 2021

5  Mr Olsen’s further comments – 10 June 2021

6  Discovery’s response to request for further information – 26 July 2021

7  Consent document for New Zealand Today, provided by Discovery – 18 August 2021

¹ Standard 6 of the Free-to-Air Television Code of Broadcasting Practice
² Guideline 6c
³ Standard 11 of the Free-to-Air Television Code of Broadcasting Practice
⁴ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁵ Guideline 11b
⁶ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁷ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁸ Guideline 6c
⁹ See Moir and Television New Zealand Ltd, Decision No. 2021-016 at [11]
¹⁰ Guideline 11c
¹¹ As above
¹² Albery and RadioWorks Ltd, Decision No. 2011-038 at [60] to [62]
¹³ Guideline 11a