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 an item on Newshub Live at 6pm breached the discrimination and denigration standard. The item reported on the appointment of Chris Hipkins and Carmel Sepuloni as the new Prime Minister and Deputy Prime Minister, and discussed the high levels of diversity in the top four positions in Cabinet. Later in the segment, the political editor stated ‘you can’t have two white guys from Wellington at the top in this day and age’, in reference to why she believed Grant Robertson had not been named Deputy Prime Minister. The Authority found the comments were a genuine expression of the political editor’s opinion, and did not meet the high threshold required to breach the standard and justify restricting the right to freedom of expression.

Not Upheld: Discrimination and Denigration

The broadcast

[1]  A segment on Newshub Live at 6pm, broadcast on 22 January 2023, discussed the appointment of Chris Hipkins to Prime Minister and Carmel Sepuloni to Deputy Prime Minister. The segment included the following dialogue with Political Editor Jenna Lynch:

Host:                    Labour have opted for the most diverse top four in New Zealand political history. Chris Hipkins has been confirmed as Prime Minister. He's picked Pasifika woman Carmel Sepuloni as a Deputy PM. Kelvin Davis stays on as Deputy Leader and will keep up the Māori representation. Finance Minister Grant Robertson represents the rainbow community. As for Hipkins. He reckons he'll bring a tinge of the ginge to the leadership…

     [later in the segment]

Lynch:                 …keeping Grant Robertson on for stability in the finance role. [Hipkins] obviously couldn't keep [Robertson] on as Deputy Prime Minister. You can't have two white guys from Wellington at the top in this day and age.

The complaint

[2]  John Samson complained the broadcast breached the discrimination and denigration standard due to the statement, ‘you can’t have two white guys at the top in this day and age’, hypothesising if it would be acceptable for a reporter to state ‘in this day and age you can’t have 2 brown guys at the top.’

[3]  On referral to the Authority, Samson also raised the fairness standard as having been breached as what the reporter said was offensive. Under section 8(1B) of the Broadcasting Act 1989, the Authority is only able to consider complaints under the standard(s) raised in the original complaint to the broadcaster. However, in limited circumstances, the Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording, and where it is reasonably necessary in order to properly consider the complaint.¹

[4]  In our view the fairness standard is not reasonably necessary in order to properly consider the complaint, as the discrimination and denigration standard adequately captures the concerns raised by the complainant in this regard. In any event, as the complainant does not claim any specific person or organisation is treated unfairly by the broadcast, the standard does not apply.² Therefore, our decision is limited to the standards raised in the initial complaint to the broadcaster.

The broadcaster’s response

[5]  Warner Bros. Discovery (WBD) did not uphold the complaint, advising the remark ‘formed part of the commentary and analysis viewers typically expect from political reporters. The remark was in context and was a reference to the diversity of the appointments that had been made.’

[6]  WBD ‘maintains that in this context, the reporter’s comment was a genuine expression of serious comment and did not amount to hate speech or a sustained attack on a particular group which is what is required to find a breach of this standard.’

[7]  WBD was ‘satisfied that the reporter's analysis and commentary in the Broadcast is typical of the free and frank discussion routinely presented by the Political Editor which regularly features in Newshub and we have found no breach of this standard.’

The standard

[8]  The discrimination and denigration standard³ protects against broadcasts which encourage the 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.

[9]  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 find a breach of the standard.⁴ 

Our analysis

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

[11]  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 against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁵

[12]  The standard is not intended to prevent the broadcast of material that is factual, a genuine expression of serious comment, analysis or opinion, or legitimate humour, drama or satire.⁶ We consider viewers would have understood the statement complained about was a genuine expression of Lynch’s analysis, and was made as part of a discussion on diversity in Government, which is a matter of significant public interest.

[13]  Regarding a similar broadcast discussing diversity issues in local government,⁷ the Authority did not find the phrase ‘pale, male and stale’ breached the discrimination and denigration standard. For similar reasons to that complaint, we do not consider the statement complained of in this case breached the standard, noting that comments will not breach the standard simply because they are critical of another group, because they offend people, or because they are rude.

[14]  In this context, we do not agree the statement encouraged the denigration of, or discrimination against, any section of the community.⁸

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

Susie Staley
Chair
12 April 2023   

Appendix

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

1  John Samson’s formal complaint to WBD – 31 January 2023

2  Samson’s referral to the Authority – 25 February 2023

3  WBD’s response to the formal complaint – 27 February 2023

4  WBD’s further comment – 27 February 2023

5  Samson’s further comment – 1 March 2023

6  WBD confirming no further comment – 9 March 2023

¹ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
² Standard 8, Code of Broadcasting Standards in New Zealand
³ Standard 4, Code of Broadcasting Standards in New Zealand
⁴ Guideline 4.2
⁵ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁶ Guideline 4.2
⁷ Thomas and Radio New Zealand Ltd, Decision No. 2022-063
⁸ See Thomas and Radio New Zealand Ltd, Decision No. 2022-063; Connolly and Discovery NZ Ltd, Decision No. 2021-037; and Hall & Large and Television New Zealand Ltd, Decision No. 2018-061 for similar findings