Schwabe and Television New Zealand Ltd - 2011-041
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Paul Schwabe
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News – item included the word “dickhead” – allegedly in breach of the good taste and decency standard
Standard 1 (good taste and decency) – contextual factors – not upheld
This headnote does not form part of the decision.
 An item on One News, broadcast on TV One at 6pm on Wednesday 2 February 2011, reported on MP Hone Harawira’s falling-out with the Māori Party. The presenters stated that “the maverick MP [had] lashed out on his Facebook page” and “called his Māori Party colleagues ‘dickheads’”. Close-up footage of the comments was shown, as a voiceover read them aloud:
It looks like these dickheads only have expulsion on their mind. If that’s their plan, then we may need to refocus.
 The reporter interviewed Mr Harawira to seek clarification on whether the comments were directed at party leadership or officials, and Mr Harawira commented, “I didn’t call my fellow MPs dickheads. I don’t think people should read into it more than what’s there. Read it for what it’s worth.” The reporter noted that this was not the first time that Mr Harawira had been in trouble for using “colourful” language, stating that, in 2009, he distributed an email which referred to “white mother[expletive bleeped] raping the country”.
 The item also contained footage of other comments posted on Facebook, in which the word “bullshit” was briefly visible.
 Paul Schwabe made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the use of “offensive” language during the news, in particular the term “dickheads”, was not in good taste or decent and therefore breached section 4(1)(a) of the Broadcasting Act 1989.
 TVNZ assessed the complaint under Standard 1 of the Free-to-Air Television Code of Broadcasting Practice, which provides:
Standard 1 Good Taste and Decency
Broadcasters should observe standards of good taste and decency.
Broadcaster’s Response to the Complainant
 TVNZ said that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was shown, including the time of broadcast, the programme’s classification, the target audience, and the use of warnings. It maintained that One News was targeted at adults and noted that the Authority had previously acknowledged that “children of a vulnerable age are unlikely to watch the news unattended”.1 It said that, on this occasion, the item contained “mild coarse language”, including the visual depiction of the word “bullshit”. It said that One News had taken care to bleep the “more coarse (Adults Only) language”, in consideration of the time of broadcast.
 The broadcaster contended that, occasionally it was acceptable for the news to contain more mature material and emphasised that care was taken not to “sanitise the world we live in”. On this occasion, it said that the item reported on a “highly contentious dispute within the Māori Party which had elicited some real and intense emotion from those involved”. It said that Mr Harawira was a “maverick MP” with a reputation for “colourful” language, and that the language used in the broadcast reflected his strong stance on the issue. The broadcaster considered that “It was important the audience heard what Mr Harawira said. Had [the term ‘dickhead’] been bleeped, arguably audiences could have concluded that the language used… was coarser than what was spoken.” The language used would not have surprised viewers, it said.
 In TVNZ’s view, a warning for coarse language was not required, because “‘dickhead’ like ‘bugger’ is part of the New Zealand vernacular”. It noted the Authority’s research “ranks ‘dick’ (dickhead is not included on the list) at the mild end of the coarse language” spectrum of the acceptability of words in broadcasting.
 For the above reasons, TVNZ considered that the language used in the item was not sufficiently offensive to reach the threshold required to find a breach of the good taste and decency standard. Accordingly, it declined to uphold the complaint that Standard 1 was breached.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr Schwabe referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. The complainant maintained that the use of “offensive sexual terms in a programme’s presentation” was not consistent with current norms of good taste and decency.
Broadcaster’s Response to the Authority
 TVNZ noted that Mr Schwabe had requested that his complaint be considered under section 4(1)(a) of the Broadcasting Act 1989. It referred to the Authority’s previous decision in Simmons and Others and CanWest TVWorks,2 where it found that there was no material difference between that provision and Standard 1 of the Code; they imposed the same standard on broadcasters. On this basis, TVNZ said that it had considered the complaint under Standard 1.
 The broadcaster argued that the word “dickhead” was colloquial, rather than an “offensive sexual” term. It referred the Authority to Schwabe and Radio New Zealand,3 where the complainant argued that the use of the term “bugger-all” was offensive because it carried underlying sexual connotations. In that decision, the Authority considered that the term was used colloquially as a relatively mild expression of emphasis, and it declined to uphold Mr Schwabe’s complaint on the basis that it was vexatious within the confines of section 11(a) of the Broadcasting Act 1989.
 TVNZ maintained that the language used in the news item, including the term “dickheads”, did not breach Standard 1.
Complainant’s Final Comment
 Mr Scwhabe disputed the broadcaster’s contention that Standard 1 of the Code was intended to reflect and elaborate on the statutory requirement in section 4(1)(a) of the Broadcasting Act 1989. He argued that the provisions of Standard 1 were intended to “disguise and circumvent” the statutory requirement because the public had a “right” to allege breaches of section 4(1)(a) directly contravening the Act. In his view, Standard 1 and section 4(1)(a) did not impose the “same standard”.
 The complainant maintained that “dickhead” was an “offensive sexual term” because it referred to a male sexual organ. He noted that the definition of “dickhead” in the Oxford and Farlex Free dictionaries included “vulgar slang”, and reiterated his view that it was inconsistent with good taste and decency in contravention of the Act.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Mr Schwabe specified that his complaint was made under section 4(1)(a) of the Broadcasting Act, rather than Standard 1 (good taste and decency) of the Code.
 Section 4(1)(a) provides:
Every broadcaster is responsible for maintaining in its programmes and their presentation, standards which are consistent with –
(a) The observance of good taste and decency.
 Standard 1 provides:
Broadcasters should observe standards of good taste and decency.
 Mr Schwabe argued that section 4(1)(a) and Standard 1 imposed different standards on broadcasters. In essence, he considered that the statutory obligation to observe the requirements of good taste and decency in section 4(1)(a) was a stricter obligation than that imposed by Standard 1 of the Code.
 In Simmons and Other and CanWest TVWorks,4 the Authority stated:
The wording of section 4(1)(a) is mirrored in all material respects in Standard 1 of the Free-to-Air Television Code. In its view, the provisions in the Code dealing with good taste and decency are intended to reflect and elaborate on the statutory requirement in section 4(1)(a); there is no reason either in law or in commonsense for the legislation to require one standard, and the Code another.
 For the reasons given in that decision, we agree that there is no difference between section 4(1)(a) of the Act, and Standard 1 of the Code. In our view, the provisions, which both refer to observing standards of “good taste and decency”, impose exactly the same standard on broadcasters.
 We note that, on the basis of the Authority’s ruling in Simmons, TVNZ considered Mr Schwabe’s section 4(1)(a) complaint under Standard 1 of the Code. As our task on this occasion is to review the broadcaster’s decision, we proceed to determine the complaint under Standard 1, emphasising that, as the provisions impose the same standard, this in no way disadvantages the complainant.
Standard 1 (good taste and decency)
 When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:
- One News was broadcast at 6pm
- it was an unclassified news programme targeted at an adult target audience
- the programme was broadcast during the G time-band
- the language subject to complaint was not preceded by a warning
- the interview with Mr Harawira was pre-recorded, not live
- audience expectations.
 We note that the item directly reported the actual words used by Mr Harawira on his Facebook page with reference to his falling out with the Māori party. As television is a visual medium, we consider that the visual depiction of the word “dickheads” was not gratuitous, but relevant to the story. We conclude that, in the context of a news item reporting on a controversial political figure who had been reprimanded in the past for using inappropriate language, it would not have surprised or offended most viewers.
 Turning to consider the other language used in the item, we consider that the visual depiction of the word “bullshit” was very brief and would have bypassed most viewers, and that the term “motherfucker” was appropriately censored.
 For these reasons, and taking into account the relevant contextual factors, particularly that One News was an unclassified news programme targeted at adults, we decline to uphold the complaint that Standard 1 was breached.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
8 July 2011
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Paul Schwabe’s formal complaint – 8 February 2011
2 TVNZ’s response to the complaint – 3 March 2011
3 Mr Schwabe’s referral to the Authority – 1 April 2011
4 TVNZ’s response to the Authority – 27 May 2011
5 Mr Schwabe’s final comment – 13 June 2011
6 Mr Schwabe’s additional comment – 15 June 2011
2Decision No. 2006-022
3Decision No. 2002-091
4Decision No. 2006-022