BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Warning: This decision contains language that some readers may find offensive

Summary  

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

The Authority has not upheld a complaint under the offensive and disturbing content standard regarding a match of Super Smash Cricket which featured the te reo Māori phrase ‘kore puta’ (following the English phrase ‘not out’) onscreen when a review was called for whether the player batting was out or not out. The complainant considered the word ‘puta’ was highly offensive due to its different meaning in other languages such as Spanish and Portuguese. The Authority did not uphold the complaint, finding that in the context of a broadcast of a New Zealand domestic cricket match, and the previous phrase onscreen ‘decision pending’ also translated in te reo, it was clear the word ‘puta’ was being used as a te reo translation for the word ‘out’. In this context, the Authority did not need to consider what the word may mean in other languages.

Not Upheld: Offensive and Disturbing Content

The broadcast

[1]  During a match of Super Smash Cricket, broadcast on 20 January 2024 on TVNZ DUKE, the outcome of a review looking at whether the player batting was out or not out, was displayed in four consecutive graphics on the big screen:

Decision Pending

Te whakatau e tārewa ana

Not Out

Kore Puta

The complaint

[2]  Andrew Ragg complained that the broadcast’s use of the word ‘puta’ onscreen was highly offensive and this word should not ever be shown as:

• It also means ‘bitch,’ or ‘whore’ in some other languages such as Spanish and Portuguese.
• He estimated this word would be offensive to approximately 1 billion people around the world who speak these languages.

[3]  Ragg submitted his original complaint to TVNZ on 20 January 2024. TVNZ responded on 22 January 2024 via email, however Ragg has advised he did not receive this response to any of his email folders. He therefore followed up on 21 February 2024. TVNZ responded the same day repeating its original response and attaching a copy of its original email.

[4]  TVNZ did not accept the complaint as a ‘formal complaint’ under the Broadcasting Act 1989, advising:

• The complaint was not a matter of broadcasting standards.
• ‘New Zealand has three “official” languages: English, Māori and New Zealand Sign Language. Spanish is not an official New Zealand language, and it is not a breach of programme standards to broadcast Māori words.’
• The Authority’s decision in KS and Television New Zealand Ltd, Decision No. 2020-135, found the use of te reo Māori does not raise any issue of broadcasting standards.
• ‘The BSA has specifically advised that broadcasters are not expected to respond formally to complaints about te reo Māori.’

[5]  Ragg referred his complaint to the Authority on 7 March 2024.

Jurisdiction

Was the complainant within time to refer the complaint to the Authority?

[6]  Section 9(4) of the Broadcasting Act 1989 (the Act) states a complaint must be made to the Authority within the period:

a)  starting on the first working day after the day on which the complainant received notice of the broadcaster’s decision or action on the complaint; and 

b)  ending 20 working days later.

[7]  TVNZ submitted the Authority should not accept this referral, as it was not made within 20 working days of its original response of 22 January 2024. It advised:

• It did not receive a ‘bounceback’ email.
• TVNZ had previously corresponded with this complainant, through the same email address, without any issue.
• Issues that may relate to a complainant’s email security settings, or administrative oversight, are not the responsibility of TVNZ.

[8]  The question for us is whether Ragg’s complaint referral was made within 20 working days of ‘receiving notice’ of the broadcaster’s decision on the complaint. The Act does not specify what is meant by ‘receiving notice’.

[9]  While we acknowledge TVNZ’s submissions on this question and recognise it made best efforts to respond to the complaint, we accept Ragg referred his complaint to us within 20 working days of ‘receiving notice’ of the broadcaster’s decision. This is because:

• There is no evidence before us to confirm TVNZ’s response of 22 January 2024 reached the complainant’s email system (and this is supported by his later efforts to follow up with TVNZ on the basis he had not received any response).
• The complainant referred his complaint to us within 20 working days of receiving TVNZ’s response of 21 February 2024.
• This approach is consistent with:
  1)  the Authority’s policy on such matters¹
  2)  the Authority’s previous decisions which recognise that the wording of the Act indicates some expectation of receipt² and that email is not an infallible form of communication³ (which we consider remains the case today)
  3)  the purpose and objectives of the Act, namely, allowing New Zealanders easy and relatively informal access to a complaints procedure in relation to broadcasts.

Did the complaint sufficiently allege a breach of broadcasting standards?

[10]  In order to constitute a ‘formal complaint’ under the Broadcasting Act 1989, a complaint must ‘constitute an allegation that the broadcaster has failed to comply with section 4’. In other words, it must constitute an allegation that the broadcaster has failed to comply with one or more of the broadcasting standards.

[11]  While Ragg did not explicitly cite a particular broadcasting standard as being breached in his complaint to the broadcaster, a standard does not necessarily have to be raised explicitly if it can be reasonably implied into the wording, and where it is reasonably necessary to properly consider the complaint.⁴ We are satisfied the language used in Ragg’s complaint to the broadcaster (that the word ‘puta’ was ‘highly offensive’) can reasonably be interpreted as raising the offensive and disturbing content standard, and that implying this standard is reasonably necessary to properly consider the complaint. 

The broadcaster’s response

[12]  In response to our decision to accept this complaint as a formal complaint, TVNZ submitted:

• The Authority was in conflict with the spirit of KS and Television New Zealand Ltd, Decision No. 2020-135 (which found the use of te reo Māori does not raise any issue of broadcasting standards).
• ‘While we understand words in other languages, homonymous to the word the complainant is referring to, have the potential to cause [offence] in some contexts, this was clearly not the case in relation to Mr Ragg’s complaint and the content in question, he is complaining about te reo.’ (The complainant disagreed with this statement).
• ‘The use of te reo Māori in our sports programmes is one of the ways that TVNZ promotes cultural diversity and inclusion through language.’

The standard

[13]  The purpose of the offensive and disturbing content standard⁵ 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, taking into account the context of the programme and the wider context of the broadcast.⁶

Our analysis

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

[15]  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 – which includes the broadcaster's right to offer the broadcast content, 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 the resulting limit on the right to freedom of expression is demonstrably reasonable and justified in a free and democratic society.⁷

[16]  We acknowledge the broadcaster’s comments about our decision to accept this complaint, rather than dismiss it on the basis it concerns the use of te reo Māori in broadcasting.⁸ We consider this complaint, on its face, raises issues regarding the offensiveness of the particular term in a different language, rather than the use of te reo per se. In this respect it raises a slightly different issue to previous cases.

[17]  When considering complaints under the offensive and disturbing content standard, the context of the broadcast is critical. In this case:

• The broadcast was of a game of Super Smash Cricket, a domestic cricket competition.
• Te reo Māori is an official language of New Zealand, and therefore often incorporated into official events, including sporting events.
• The word was used in the context of reviewing whether the player batting was out or not out.
• ‘Decision pending’ was shown first onscreen and translated into te reo.
• Immediately following that, the graphic onscreen showed ‘Not Out | Kore Puta’.

[18]  In this context, it is clear the word ‘puta’ was a te reo Māori word, used as part of a te reo translation ‘kore puta’ for ‘not out’. This would be equally clear if ‘puta’ followed ‘out’ onscreen, indicating the player was out following review of a possible wicket.

[19]  We therefore do not need to consider what the word may mean in other languages or its potential offensiveness in a different context. Nor was the broadcaster required under the standards to turn its mind to this. The use of te reo Māori, an official language of New Zealand, does not raise any issue of potential harm as envisaged by broadcasting standards.⁹ As the broadcaster advised, ‘the use of te reo Māori in our sports programmes is one of the ways that TVNZ promotes cultural diversity and inclusion through language’.

[20]  We find no breach of the offensive and disturbing content standard and do not uphold the complaint.

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

Susie Staley
Chair
22 May 2024

Appendix

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

1  Andrew Ragg’s formal complaint to TVNZ – 20 January 2024

2  TVNZ’s response to the complaint – 22 January 2024

3  TVNZ’s second response to the complaint – 21 February 2024

4  Ragg’s referral to the Authority – 7 March 2024

5  Ragg’s comments on referral to the Authority – 13 March 2024

6  Ragg’s further comments – 14 March 2024

7  TVNZ’s comments on jurisdiction – 15 March 2024

8  TVNZ confirming channel – 25 March 2024

9  Ragg’s further comments on jurisdiction – 25 March 2024

10  TVNZ’s final comments – 29 April 2024

11  Ragg’s final comments – 5 May 2024

¹ Section 2.2.15 of the Authority’s Policy Manual states: ‘If the broadcaster’s decision is emailed, it is treated as being received once the email enters the complainant’s electronic information system (with reference to the time it was ‘sent’).’
² Ridley-Smith and Radio New Zealand Ltd, Decision No. 2012-102 at [7]
³ Hastie and TVWorks Ltd, Decision ID2011-102 at [9], Thompson and TVWorks Ltd, Decision ID2011-104 at [9]
⁴ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
⁵ Standard 1, Code of Broadcasting Standards in New Zealand 
⁶ Commentary, Standard 1, Code of Broadcasting Standards in New Zealand, page 8
⁷ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁸ In accordance with our approach in KS and Television New Zealand Ltd, Decision No. 2020-135
⁹ KS and Television New Zealand Ltd, Decision No. 2020-135