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 that a segment on Newshub Live at 6pm breached the offensive and disturbing content, discrimination and denigration, and fairness standards. The segment referred to two recent kidnapping attempts, and asked for witnesses to come forward to help identify the alleged perpetrator. During the segment, a video was shown of the alleged perpetrator, who was described as ‘possibly Indian’. The Authority did not uphold the complaint under any of the nominated standards, finding the broadcast was a straightforward news item; the language used was not offensive or disturbing; did not contain malice or nastiness; and was unlikely to encourage discrimination against, or denigration of a section of the community. The fairness standard did not apply.

Not Upheld: Offensive and Disturbing Content, Discrimination and Denigration, Fairness

The broadcast

[1]  During an episode of Newshub Live at 6pm on 7 October 2022, the host reported on two attempted kidnappings in Christchurch. The brief segment contained the following statement:

Christchurch police are urgently appealing for help to identify a man after the attempted kidnapping of two women in separate incidents. Police say this man [video shown] approached two different women in Fendalton early on Monday and tried to drag one of them away before a passing motorist intervened. He's described as possibly Indian with a short beard. Police are asking for any dashcam vision, CCTV footage or witnesses to the incidents around Clyde, Creyke and Fendalton Roads between 6am and 7am on Monday.

The complaint

[2] Anendra Singh complained the broadcast breached several standards. The complaint has been summarised as follows:

Offensive and disturbing content / discrimination and denigration

[3]  The classification of the alleged offender as “possibly Indian” was ‘discriminatory and sloppy journalism when juxtaposed with the description of other ethnic groups in the community.’ The complainant stated the reference to the alleged offender being ‘possibly Indian’ isolated the Indian community for scrutiny and stigma in a way that terms such as Caucasian, Maori/Pasifika and other broad groupings do not. That it was in Christchurch also puts people of that resemblance in danger.

[4]  The complainant suggested Asian, or South Asian as a better descriptor, and questioned whether the Police or public would be able to tell the difference between Indians and other nationalities such as Pakistani, Bangladeshi, Egyptian, Lebanese, Iranian or Iraqi.

[5]  ‘[Warner Bros. Discovery] states that the phrase “possibly Indian” is acceptable because it relied on information from the police…Police make mistakes...Why not simply show the suspect’s footage to let the public draw its own perceptions.’

[6]  ‘The onus rests on mainstream media to educate and transform the landscape of how society perceives groups for rewards and transgressions rather than grin and bear the consequences of maybes.’

Fairness

[7]  It is unfair to every ethnicity that [might be mistaken for Indian] who will wear the discriminatory label because of the broad resemblance to an “Indian”.

The broadcaster’s response

[8]  While Warner Bros. Discovery (WBD) apologised to the complainant for any offence caused, it did not uphold the complaint for the following key reasons:

Offensive and disturbing content

• Regular news viewers would not have been offended by the 6pm bulletin providing the Police description of the alleged offender in the case of serious offending that was creating safety concerns in the affected community.

Discrimination and denigration

• WBD was satisfied it was acceptable to refer to the alleged offender as 'possibly Indian' - relying on information provided by the Police.¹ The information was important to be shared in a bid to catch the offender in a criminal case of serious offending that was creating safety concerns in the affected community.

Fairness

• The complainant did not specify any specific individuals or organisations featured in the programme that they consider the broadcast was unfair to.

The standards

[9]  The purpose of the offensive and disturbing content standard² is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.³ The standard takes into account the context of the programme, and the wider context of the broadcast, as well as information given by the broadcaster to enable the audience to exercise choice and control over their viewing or listening.

[10]  The discrimination and denigration standard⁴ 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.

[11]  The fairness standard⁵ protects the dignity and reputation of those featured in programmes.⁶ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

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

[13]  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.⁷

[14]  The harm alleged was the broadcast’s potential to cause scrutiny and stigma toward Christchurch’s Indian community, and toward other communities that may be mistaken for being of Indian descent.

[15]  The question for us is whether the broadcast reached a threshold where the level of harm outweighed the right to freedom of expression. In this case, we find the value of the expression to be very high. The broadcast informed viewers of a serious crime, where the perpetrator had not yet been apprehended and where public assistance was sought by Police to help identify the perpetrator. The importance of the expression of this broadcast means we would require a correspondingly high level of potential harm to justify restriction of the broadcaster’s freedom of expression. For the reasons further outlined below, we have identified no potential harm at such a threshold.

Offensive and Disturbing Content

[16]  This standard is focused on broadcasts that ‘seriously violate community standards of taste and decency’ or ‘disproportionately offend or disturb the audience’. It is intended to regulate broadcasts that contain sexual material, nudity, violence or course language, or other material that is likely to cause offence or distress.⁸

[17]  In this case, the broadcast was a straightforward news bulletin, conveying a police request for assistance in identifying an alleged offender of a serious offence. It repeated information provided in the Police’s media statement, including the possible ethnicity of the alleged perpetrator.⁹ An indication of possible ethnicity is a regular feature in Police requests for assistance in identifying perpetrators.¹⁰ In this context, the description of the alleged perpetrator as ‘possibly Indian’ would not seriously violate community norms or disturb the audience to a level justifying regulatory intervention.

Discrimination and Denigration

[18]  The discrimination and denigration standard does not apply to individuals, but to recognised ‘sections of the community’ which are consistent with the grounds for discrimination listed in the Human Rights Act 1993. While the broadcast referred only to the alleged perpetrator’s possible ethnicity, the complainant has raised concerns about how such descriptors might negatively impact the wider New Zealand Indian community. We accept that the New Zealand Indian community constitutes such a section of society for the purposes of the standard, therefore the standard applies.

[19]  'Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community to their detriment. ‘Denigration’ is defined as devaluing the reputation of a particular section of the community.¹¹ A high level of condemnation, often with an element of malice or nastiness, will usually be necessary to find that a broadcast encouraged discrimination or denigration in breach of the standard.¹²

[20]  While we acknowledge the complainant’s concerns, applying the relevant factors,¹³ we conclude the broadcast did not breach the standard. In particular:

• The relevant description was offered in the context of a serious news item.
• The programme shared information potentially of assistance in a matter of high public interest – the identification and apprehension of an alleged offender.
• There was no disrespect or malice towards Indian people in the presenter’s tone, or in the rest of the broadcast, and we do not consider the reference to an offender ‘possibly’ being Indian denigrated Indian people or encouraged the different treatment of Indian people to their detriment.
• An indication of possible ethnicity is a regular feature in Police requests for assistance in identifying perpetrators,¹⁴ and the Authority has previously found ‘an individual’s race may be a relevant detail to disclose while a search is underway’ for an alleged offender.¹⁵

[21]  Taken together, these factors mean the broadcast did not reach the threshold for finding harm at a level that justifies restricting freedom of expression. Accordingly, we do not uphold the complaint that the news reader’s comment encouraged discrimination against or the denigration of Indian people in breach of the standard.

Fairness

[22]  The fairness standard is concerned with preventing undue harm to the dignity and reputation of any person or organisation taking part or referred to in a programme.¹⁶  As the complainant has not identified any individual or organisation featured or referred to in the broadcast whose reputation or dignity has been impacted, this standard does not apply. For the sake of clarity, Indian people as group, and ‘every ethnicity’ that might be mistaken for Indian, are not individuals or organisations for the purpose of this standard.¹⁷ The complainant’s concerns about the depiction of this group are matters more relevant to the discrimination and denigration standard.

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

Susie Staley
Chair
20 December 2022    

Appendix

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

1  Anendra Singh’s formal complaint – 7 October 2022

2  Warner Bros. Discovery’s decision on the complaint – 1 November 2022

3  Singh’s referral to the Authority – 2 November 2022

4  WBD’s confirmation of no further comment – 7 November 2022

¹ “Public appeal following attempted kidnapping, Christchurch” (5 October 2022) New Zealand Police | Ngā Pirihimana o Aotearoa <www.police.govt.nz>
² Standard 1, Code of Broadcasting Standards in New Zealand
³ Commentary, Standard 1, Code of Broadcasting Standards in New Zealand at page 8
⁴ Standard 4, Code of Broadcasting Standards in New Zealand
⁵ Standard 8, Code of Broadcasting Standards in New Zealand
⁶ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
⁷ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁸ Guideline 1.1
⁹ “Public appeal following attempted kidnapping, Christchurch” (5 October 2022) New Zealand Police | Ngā Pirihimana o Aotearoa <www.police.govt.nz>
¹⁰ “Update – Serious assault, Bexley Park” (15 November 2022) New Zealand Police | Ngā Pirihimana o Aotearoa <www.police.govt.nz>; “Nelson Police are asking for the public’s help identifying a man who allegedly did an indecent act on a  walkway on Monday 19 September” (21 September 2022) New Zealand Police | Ngā Pirihimana o Aotearoa <www.police.govt.nz>; “Update – Firearms incident in Christchurch” (31 August 2022) New Zealand Police | Ngā Pirihimana o Aotearoa <www.police.govt.nz>;  “Police appeal for information on Havelock North incident” (20 April 2022) New Zealand Police | Ngā Pirihimana o Aotearoa <www.police.govt.nz>;  Police investigating assault in Orewa” (9 April 2020) New Zealand Police | Ngā Pirihimana o Aotearoa <www.police.govt.nz>;
¹¹ Guideline 4.1
¹² Guideline 4.2
¹³ Guideline 4.3
¹⁴ New Zealand Police | Ngā Pirihimana o Aotearoa <www.police.govt.nz>, above n 9
¹⁵ Field and Television New Zealand Ltd, Decision No 2016-012 at [10]
¹⁶ Standard 8, Code of Broadcasting Standards in New Zealand
¹⁷ See: Christoforou and Al Jazeera Media Network, Decision No. 2020-054 at [27]; Palestine Solidarity Network Aotearoa and Television New Zealand Ltd, Decision No 2021-028 at [15]