Schwabe and Television New Zealand Ltd - 2011-084
- 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
North – host used the phrase “buggered it” – allegedly in breach of standards of good taste and decency
Standard 1 (good taste and decency) – tenth occasion that the complainant has complained about the word “bugger” – complaint vexatious – decline to determine under section 11(a) of the Broadcasting Act 1989
This headnote does not form part of the decision.
 During an episode of North, broadcast on TV One at 7pm on Sunday 27 March 2011, the presenter took a boat trip to Kawau Island. Speaking to the boat’s captain about the history of the island, the presenter said, “I’ve never understood Kawau. It’s always seemed to me that [Governor Sir George Grey] buggered it, you know? All sorts of animals and plants...”
 Paul Schwabe made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the presenter’s use of the term “bugger-up” breached section (4)(1)(a) of the Broadcasting Act 1989, relating to the observance of good taste and decency. He maintained that the term was “sexually based” and designed to get attention, as the presenter could have used words such as “damaged” or “ruined”.
 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 noted that the Authority had previously ruled that section 4(1)(a) and Standard 1 of the Free-to-Air Television Code imposed the same standard on broadcasters.1 It therefore considered Mr Schwabe’s complaint under Standard 1.
 The broadcaster contended that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was shown, including the programme’s classification, time of broadcast, target audience, and the use of warnings. It noted that North was rated G for General Audiences and broadcast at 7pm on Sunday evenings.
 TVNZ pointed out that Mr Schwabe had made many previous complaints about the use of the word “bugger”, and that after nine similar complaints the Authority had declined to determine another complaint by Mr Schwabe on the grounds that it was vexatious, and ordered $150 costs against him.2
 The broadcaster maintained that the use of the word “bugger” in North was not “sexually based” or used to mean “anal intercourse” (as previously argued by Mr Schwabe). It contended that it was the “natural vernacular of the host of the programme and the captain of the boat”. TVNZ noted that the Authority had previously found that the use of the word was not considered offensive by a majority of viewers.
 TVNZ therefore declined to uphold the complaint.
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. He considered that the Authority’s new members might be “more sensitive” to the “unacceptable use of bad language around children”.
 Mr Schwabe maintained that his complaint should be considered under section 4(1)(a) of the Act, rather than Standard 1. He argued that a reasonable person would consider the use of the word “bugger” to be unsuitable for children in the context of a New Zealand documentary rated G and broadcast on Sunday at 7pm. The complainant contended that dictionaries defined “bugger” and its variations to be “vulgar slang”.
Broadcaster’s Response to the Authority
 TVNZ referred the Authority to nine previous decisions in which it had declined to uphold Mr Schwabe’s complaints about the use of the word “bugger”. It noted that in three of those complaints he had persistently complained under the Act rather than the broadcasting standards in the Code.
 The broadcaster therefore invited the Authority to decline to determine both aspects of Mr Schwabe’s complaint on the grounds that they were vexatious.
 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.
 We note that between 2000 and 2002, Mr Schwabe lodged nine separate complaints about the use of the word “bugger”. On the last of those occasions, the Authority declined to determine Mr Schwabe’s complaint on the grounds that it was vexatious, and ordered him to pay $150 costs to the broadcaster.
 Mr Schwabe has argued that he was entitled to complain again about the same issue, as the new Authority members may have a different view about the use of the word. On the contrary, we agree with the Authority’s reasoning in its nine previous decisions, none of which upheld Mr Schwabe’s complaints. In our view, it was vexatious for Mr Schwabe to again complain about the same matter, and we therefore find it appropriate to decline to determine the complaint in accordance with section 11(a) of the Broadcasting Act 1989.
 In any case, we note that the Authority’s research suggests that the use of the word “bugger” has become less offensive over time. Only eight percent of people surveyed in 2009 considered the word unacceptable in all broadcasting scenarios, which was significantly lower than in 2005. In a comparison of words’ acceptability across the Authority’s last three surveys, conducted in 2009, 2005 and 1999, “bugger” ranked at the very bottom of the list, with 11 percent considering the word unacceptable.3
For the above reasons the Authority declines to determine the complaint.
Signed for and on behalf of the Authority
13 September 2011
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Paul Schwabe’s formal complaint – 18 April 2011
2 TVNZ’s response to the complaint – 23 May 2011
3 Mr Schwabe’s referral to the Authority – 7 June 2011
4 TVNZ’s response to the Authority – 29 July 2011
1Simmons and Others and CanWest TVWorks, Decision No. 2006-022
2Schwabe and Radio New Zealand, Decision No. 2002-091
3What Not to Swear: The Acceptability of Words in Broadcasting (Broadcasting Standards Authority, 2010) at pages 14 and 19