BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Assignment – preview of following week’s item of state of New Zealand railways – interviewees use words "bugger" and "shit-house" – breach of good taste and decency

Findings
S.4(1)(a) – language acceptable in context – no uphold

This headnote does not form part of the decision.

Summary

[1] The closing segment of Assignment broadcast on TV One on 18 October 2001 at 8.30pm previewed an item to be broadcast the following week about the state of New Zealand’s railways. One of the interviewees used the word "bugger" and another used the word "shit-house".

[2] Paul Schwabe complained to Television New Zealand Ltd, the broadcaster, that the broadcast of the language was "deliberate gutter television" and contrary to good taste and decency.

[3] Declining to uphold the complaint, TVNZ responded that to "sanitise" the way members of the public expressed themselves would risk distorting their views, and would fail to take into account the right to freedom of expression in s.14 of the Bill of Rights Act 1990.

[4] Dissatisfied with TVNZ’s response, Mr Schwabe referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaint.

Decision

[5] The members of the Authority have viewed a tape of the item complained about, and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] The closing segment of Assignment broadcast on TV One on 18 October 2001 at 8.30pm previewed an item to be broadcast the following week about the state of New Zealand’s railways. A railway supporter was broadcast saying: "Guys lost their lives, guys have fought for our railway in Gisborne and no bugger is going to take it away". A train driver was broadcast saying: "No-one is using it [the railway service] because we are offering a shit-house service".

The Complaint

[7] Paul Schwabe complained to Television New Zealand Ltd, the broadcaster, that the broadcast of the language was "deliberate gutter television" and contrary to good taste and decency.

The Standard

[8] TVNZ assessed the complaint under s.4(1)(a) of the Broadcasting Act 1989 which requires broadcasters, in programmes and their presentation, to maintain standards consistent with the observance of good taste and decency.

[9] TVNZ also took into consideration standard G2 of the Television Code of Broadcasting Practice, which requires broadcasters:

G2 To take into consideration currently accepted norms of decency and taste in language and behaviour, bearing in mind the context in which any language or behaviour occurs.

The Broadcaster’s Response to the Complainant

[10] TVNZ responded to Mr Schwabe that his complaint raised the issue of whether broadcasters should "sanitise" the way members of the public expressed themselves in interviews in order to "protect the sensibilities" of some viewers. In TVNZ’s view, to do so would be to risk distorting the views, and misleading viewers. It would also fail to take into account the right to freedom of expression in s.14 of the Bill of Rights Act 1990.

[11] TVNZ said the examples complained about carried a "low level of offence" and, in context, provided additional information about the topic for discussion the following week.

The Complainant’s Referral to the Authority

[12] In his referral, Mr Schwabe maintained that TVNZ had misrepresented his complaint as being concerned with the language the interviewees had used. He said:

Language recorded in the field is nobody’s business and certainly not subject to the [Broadcasting] Act. The broadcast of offensive language, which is what I complained about, definitely is.

As for the sanitising of vital comments, the risk of distortion, and we must not overlook the Bill of Rights rubbish – TVNZ’s statutory responsibility is towards good taste and decency first and foremost, surely.

[13] Mr Schwabe argued that "bugger" meant "sodomite, person having unnatural intercourse with beast or man" and that "shit" meant "excrement" and "shit-house" meant lavatory. He disagreed with the Authority’s Decision No: 2001-127, in which the Authority ascribed meanings to the word "bugger" other than that contended by Mr Schwabe.

The Broadcaster’s Response to the Authority

[14] In its response to the Authority, TVNZ drew the complainant’s attention to the reference to the Bill of Rights in the Preamble to the new Free-to-Air Television Code of Broadcasting Practice, which came into effect on 1 January 2002. The Preamble reads:

Fundamental to broadcasters, and to the Authority’s activities, is the statutory right to freedom of expression which is provided for in section 14 of the New Zealand Bill of Rights Act 1990.

The Authority’s Determination

[15] There are two aspects to Mr Schwabe’s complaint that the closing segment of Assignment broadcast on TV One on 18 October 2001 breached the requirement that broadcasters maintain standards consistent with good taste and decency.

[16] The first aspect of the complaint concerns a railway supporter’s use of the word "bugger". In Decision No: 2001-219, in relation to another complaint from Mr Schwabe about the use of the word "bugger", the Authority made the following observation:

The Authority notes that since January 2000 it has received seven complaints about the use of the word "bugger" in various television and radio broadcasts. All but one of these complaints have been referred by Mr Schwabe. None of the complaints have been upheld as breaches of broadcasting standards. In Decision No: 2000-166 the Authority reminded Mr Schwabe of its power under s.16 of the Broadcasting Act 1989 to impose costs on him if it considered a complaint to be frivolous, vexatious or one which ought not to have been made. The warning was made in light of the Authority's research findings and its precedent decisions on the use of the word "bugger". The Authority will use this power should Mr Schwabe continue to complain about the word being used in similar circumstances.

[17] The Authority considers the broadcast of the word "bugger" which is the subject of the present complaint occurred in similar circumstances to Mr Schwabe’s previous complaints which have not been upheld. It considers the railway supporter used the word in its colloquial sense, and he was not referring to anal intercourse or bestiality. In context, the Authority does not find the "bugger" aspect of the broadcast to breach good taste and decency.

[18] The Authority notes, however, that Decision No: 2001-219 was released to the parties on 17 December 2001. Mr Schwabe’s referred his present complaint to the Authority on 1 December 2001. Therefore, as Mr Schwabe had not then been notified of the Authority’s intention to impose costs against him if he complained about the word "bugger" being used in similar circumstances, on this occasion it will not use its power to impose costs.

[19] The second aspect of Mr Schwabe’s complaint concerns a railway worker’s use of the phrase "shit-house".

[20] The Authority is required to take into consideration the context in which the alleged breach of good taste and decency occurred. It notes that the railway worker used the phrase colloquially to describe his view of the railway service, and that he did not use the phrase gratuitously. It considers the phrase was mild on the scale of potentially offensive language, and it declines to uphold this aspect of the complaint.

[21] In reaching this decision, the Authority also observes that to find a breach of good taste and decency would be to interpret the Broadcasting Act 1989 in such a way as to unjustifiably infringe the broadcaster’s statutory right to freedom of expression in s.14 of the New Zealand Bill of Rights Act 1990.

For the reasons above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
21 February 2002

Appendix

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

1. Paul Schwabe’s Complaint to Television New Zealand Ltd – 19 October 2001
2. TVNZ 's Response to the Mr Schwabe – 7 November 2001
3. Mr Schwabe’s Referral to the Authority – 1 December 2001
4. TVNZ’s Response to the Authority – 10 December 2001