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 about comments made by a caller on Newstalk ZB’s Tim Roxborogh show. The caller was explaining why he ‘fell out of love with Cuba’ and expressing disbelief that a place so close to the United States could be characterised by what he described as ‘poverty and the sheer nothingness of everything’, also saying, ‘you’re not in Africa… you are 90 miles from America’. The complaint was that this remark equated the entire African continent and its people with poverty, was discriminatory, and was not challenged by the host. The Authority acknowledged the complainant’s concerns, but found the passing reference by a caller did not reach the high threshold for a breach of the discrimination and denigration standard.

Not Upheld: Discrimination and Denigration

The broadcast

[1]  During Newstalk ZB’s Tim Roxborogh show on 6 January 2021, a caller explained why he ‘fell out of love with Cuba’ and expressed disbelief that a place so close to the United States could be characterised by what he described as poverty and ‘sheer nothingness’:

…I spent the summer in Cuba and it is amazing. You are only 90 miles away from the mainland in America, but you could have been on another planet in the solar system because the poverty and the sheer nothingness of everything.

And while the people themselves are very nice, one day I met friends of mine… the guide was standing there and loads of people were tipping him and he was dressed in, he had a Lacoste t-shirt on, he had Ray-Ban’s sunglasses, he had the latest iPhone, he had the nice Gucci loafers, and he was very successful doing what he did… I said, well, he’s done well. And [my friends] just held up their [hands] and went, he's the mayor’s son.

…So it's like, really, really? And that was why I completely fell out of love with Cuba. Architecturally, it is phenomenal. However, the poverty and the… sheer nothingness that everybody has… and again, you're not in Africa… you are 90 miles from America.

The complaint

[2]  Dele Oluwole complained the broadcast and in particular the caller’s last comment, ‘you’re not in Africa…’ breached the discrimination and denigration standard:

• ‘The [caller’s remark] equates the entire African continent and its people to poverty.’
• ‘Surprisingly, the radio anchor did nothing to correct the erroneous portrayal of an entire continent. The action of the radio anchor hinges on the side of being complicit to a discriminatory statement, and not appropriate for the African community in New Zealand.’
• ‘We have a growing number of African children born in New Zealand that suffer discrimination, and such a discriminatory statement will continue to impact them negatively, especially in that it’s untrue.’

[3]  In later submissions the complainant added:

• ‘Most African countries may be poor but certainly not all African countries are poor and that fact could have been upheld too by the radio station.’
• ‘It would not have been an issue for me or the African community if the caller had used “some African countries”, “third world countries”, “developing countries” or “least developed countries” instead of Africa.’
• Mr Roxborogh should have either refuted the caller’s claim [equating Africa with poverty] or used the ‘dump button’ to prevent it being broadcast.
• The broadcaster’s response to the complaint was in itself discriminatory, and the source relied on was not credible (referring to the last point, paragraph [5] below).

Scope of Authority’s determination

[4]  In the referral to the Authority, the complainant also identified the balance, accuracy and fairness standards as having been breached. Under section 8(1B) of the Broadcasting Act 1989, we are only able to consider the complaint under the standard raised in the original complaint to the broadcaster. These additional standards were not raised, expressly or impliedly, in the original complaint and so are outside the scope of our decision.

The broadcaster’s response

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

• ‘The Authority has recognised that talkback “is a robust, opinionated environment designed to cultivate discussion and debate of controversial ideas and opinions”. Audience expectations would reflect this. We expect our listeners, given the target adult audience, would anticipate some forthright opinions from hosts and callers.’
• ‘On reviewing the segment, it is clear that there was no malice in the comment complained of, nor was it “repeated or sustained”. The focus of the caller’s comments was on the poverty he had witnessed in Cuba.’
• ‘While some listeners (including [the complainant]) may consider the comment offensive in that it amounts to a generalisation about the entire African content, it does not contain the level of invective required to constitute a breach of this standard.’
• ‘Furthermore, while New Zealanders of African heritage are a section of the community to which this standard may apply, the comment complained of does not encourage discrimination against or denigration of this group. Rather, it was an attempt, albeit rather clumsily phrased, to emphasise the extent of the poverty the caller had witnessed when in Cuba, in the context of its geographical proximity to the United States. We accept that not all African countries experience serious poverty, however it is generally considered the poorest continent on earth; almost every second person in the states of sub-Saharan Africa lives below the poverty line…¹’

The standard

[6]  The discrimination and denigration standard² states that 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. It protects sections of the community from verbal and other attacks, and fosters a community commitment to equality.³

[7]  ‘Discrimination’ is 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 particular section of the community.⁴

Our analysis

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

[9]  We have also considered the important right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of ideas, information and opinions, and the audience’s right to receive those. We may only intervene and uphold a complaint where the broadcast has caused actual or potential harm at a level that outweighs the right to freedom of expression. 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 usually be necessary to conclude that a broadcast encouraged discrimination or denigration in contravention of the standard.⁵ The importance of the right is also recognised in the guidelines to the standard, which state it is not intended to prevent the broadcast of material that is a genuine expression of serious comment, analysis or opinion.⁶

[10]  For the reasons below, in this case we have not found harm at a level that justifies restricting the right to freedom of expression.

Discrimination and denigration

[11]  The 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

[12]  First, we acknowledge the complainant’s concerns that the caller’s remark may be considered offensive and uninformed, in that it made a generalisation about the entire African continent. The broadcaster has also acknowledged the potential to cause offence.

[13]  However, applying the relevant factors⁸ we concluded, on balance, it did not breach the standard. In particular:

• The comment complained about was made by a caller (not the host), in passing, and in the context of personal observations which were clearly subjective. The standard is not designed to prevent a genuine expression of an individual’s opinion, in their own words.
• The host did not endorse or engage with the comment.
• No comments were made about African people, or New Zealanders of African heritage – only a single, brief reference to ‘Africa’ in the context of the caller’s broader perspective, which was clearly focused on his personal experience and opinion of Cuba.
• The comment did not carry malice or condemnation.
• The programme was a talkback radio programme, known to be a robust, opinionated environment, and targeted at an adult audience.
• The programme was targeted at an adult audience familiar with the opinionated environment of talkback radio.
• While there was minimal public interest in the particular comments of the caller in this broadcast, there is public interest in cultivating discussion and debate, which talkback radio is designed to do.
• The programme was live (not pre-recorded).
• The broadcaster had limited editorial control, beyond the ability to ‘dump’ content within approximately eight seconds.

[14]  Taken together, these factors mean the broadcast did not reach the high threshold for finding harm at a level that justifies restricting freedom of expression, which permits individuals to express themselves in the way they choose. In particular, we consider it is significant the comment in question was made by the caller and the host did not endorse or engage with it.⁹

[15]  In this case, the caller’s comment came across as an expression of opinion, albeit uninformed, which is protected under the standard,¹⁰ and did not carry any element of malice or condemnation.

[16]  Accordingly, we do not uphold this complaint.

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

Judge Bill Hastings

Chair

21 July 2021    

Appendix

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

1 Dele Oluwole’s formal complaint – 8 January 2021

2  NZME’s decision on the complaint – 12 February 2021

3  Dele Oluwole’s referral to the Authority – 9 March 2021

4  NZME’s response to the referral – 23 March 2021

5  Dele Oluwole’s final comments – 6 April 2021

¹ SOS Children’s Villages “On the Poorest Continent, the Plight of Children is Dramatic” <sos-usa.org>
² Standard 6 of the Radio Code of Broadcasting Practice
³ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁴ Guideline 6a
⁵ Guideline 6b
⁶ Guideline 6c
⁷ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁸ Guideline 6d
⁹ See, for example, Lee and MediaWorks Radio Ltd, Decision No. 2017-030 at [16]; Smith and The Radio Network Ltd, Decision No. 2002-188 at [22]
¹⁰ Guideline 6c