BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

During a segment of The AM Show, which discussed how different sections of the community had united in the wake of the Christchurch mosque attacks, host Duncan Garner said he’d like ‘the gangs’ to nominate a person to ‘look after’ the alleged attacker. The Authority did not uphold a complaint that Mr Garner’s comment breached broadcasting standards. The Authority found, upon consideration of contextual factors, including the glib nature of the comment, that while it was discordant with the tone of the broadcast and may have caused offence to some, it did not go beyond audience expectations of Mr Garner or The AM Show. The Authority concluded that any restriction of the broadcaster’s right to freedom of expression on this occasion would be unreasonable. 

Not Upheld: Good Taste and Decency, Violence, Law and Order

The broadcast

[1]  During an episode of The AM Show, presenter Amanda Gillies reported on how different parts of the community had united in the wake of the Christchurch mosque attacks. At the end of the segment host Duncan Garner said ‘I would like the gangs to nominate one person to look after this man [the alleged attacker] in custody. I think if the gangs could nominate one of their finest behind bars I think that would be a good thing, wouldn’t it?’

[2]  This segment was broadcast on 19 March 2019 on Three.

[3]  In considering this complaint, we have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The complaint

[4]  Mr Reekie submitted that Mr Garner’s comment breached the good taste and decency, violence and law and order standards of the Free-to-Air Television Code of Broadcasting Practice because:

• Mr Garner was directly inciting audience members to break the law and commit ‘serious antisocial activity.’
• The right to freedom of expression does not allow Mr Garner to ‘incite violence’.
• It was in ‘poor taste’ for Mr Garner to ‘incite the use of violence in any capacity’.
• Mr Garner’s comment put the alleged attacker’s right to a fair trial at risk.
• Mr Garner’s comment glorified violence and presented violence as ‘the answer’.
• Mr Garner was being serious when he made the comment.
• There was a ‘real likelihood’ that gang members would respond to Mr Garner’s ‘incitement’ and cause harm.

[5]  MediaWorks responded that:

• The broadcast did not cause widespread undue offence or distress.
• The broadcast did not contain violence.
• Mr Garner’s comment was ‘obviously flippant’ but was not expressed as a genuine intention of illegal activity.

The standards

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

[7]  The violence standard (Standard 4) states that broadcasters should exercise care and discretion when dealing with the issue of violence.

[8]  The intent behind the law and order standard (Standard 5) is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.

Our findings

[9]  When determining a complaint we first recognise the importance of the right to freedom of expression, which includes both the broadcaster’s freedom to present information and ideas to the public, and the audience’s right to receive that information. We weigh the value of the broadcast item, as well as the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast either to an individual or to society or the audience generally.

[10]  Audiences expect that on the AM Show Mr Garner will, at times, make provocative statements that some people may find challenging. Controversial and provocative speech is valued in a free and democratic society and the threshold for restricting this speech is justifiably high.

[11]  On this occasion, we acknowledge that the comment was discordant with the sensitive coverage that preceded it. But for the reasons set out below we do not consider that it reached the threshold which justifies restricting the broadcaster’s right to freedom of expression.

Good Taste and Decency

[12]  Under the good taste and decency standard, current norms of good taste and decency, consistent with the context of the programme and the wider context of the broadcast, must be maintained.  Context is crucial when determining a complaint under this standard.¹ We found the following contextual factors important in our determination:

• There is an audience expectation that The AM Show will sometimes feature provocative opinions on important issues.
• The AM Show is an unclassified news and current affairs programme and has an adult target audience.
• Mr Garner’s comment was glib in tone.
• Mr Garner is renowned for making controversial and provocative statements.²

[13]  We understand some people may have found the implication of violence from Mr Garner’s comment to be offensive. Mr Garner’s comment also struck a particularly discordant note following the moving report from presenter Amanda Gillies, discussing how different communities were uniting in the wake of the attacks. However, it is clear the comment complained about was flippant in nature. Within this context we find Mr Garner’s comment did not go beyond audience expectations for The AM Show and was unlikely to cause widespread undue offence or distress or undermine widely shared community standards. 

[14]  We therefore do not uphold the complaint under the good taste and decency standard.

Violence

[15]  The purpose of the violence standard is to protect audiences from ‘unduly disturbing violent content.’³ Context is important when determining whether a broadcast amounted to unduly disturbing violent content.⁴ In addition to the contextual factors listed above at paragraph [12], we note the following:

• There were no accompanying graphic or violent images or footage.
• Mr Garner’s comment was not explicit or graphic. There was no description of any violence.

[16]  Upon consideration of the contextual factors (including Mr Garner’s glib tone, audience expectations of Mr Garner and The AM Show and the lack of explicit or graphic language), we find Mr Garner’s comment did not amount to ‘unduly disturbing violent content’.

[17]  While broadcasters are also required to exercise caution with content likely to incite or encourage violence or brutality,⁵ the same contextual factors lead us to conclude that Mr Garner’s comment did not reach that threshold.

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

Law and order

[19]  This standard requires broadcasters to observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast.

[20]  The complainant submitted that Mr Garner was directly inciting audience members to break the law through his comment. Upon viewing the broadcast it is clear to us that Mr Garner’s comment was a flippant, provocative line delivered in passing. As discussed above, comments like these are within audience expectations of Mr Garner on the AM Show and we do not consider viewers would take the comment as a sincere direction to break the law.

[21]  Considering the tone of Mr Garner’s comment combined with the other contextual factors discussed at [12], we do not consider the comment amounted to a ‘direct incitement to break the law’[6] or a promotion of illegal or serious antisocial behaviour.⁷

[22]  Therefore we find the law and order standard was not breached.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

23 August 2019

Appendix

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

1                 Mr Reekie’s formal complaint – 25 March 2019

2                 MediaWorks’ response to the complaint – 13 May 2019

3                 Mr Reekie’s referral to the Authority – 16 May 2019

4                 MediaWorks’ confirmation of no further comment – 11 June 2019

¹ Guideline 1a
² See for example: Gray, Scott, Vickers and Vink and MediaWorks TV Ltd, Decision No. 2019-020 and Harvey and MediaWorks TV Ltd, Decision No. 2019-008
³ Commentary: Violence, Broadcasting Standards in New Zealand Codebook, page 14
⁴ Guideline 4a
5 Guideline 4c
⁶ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 16
⁷ Guideline 5a