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 1 News was denigrating or unfair by including footage of a displaced West Auckland resident, following the Auckland Anniversary floods, taking a donut from a box. The complaint stated the footage represented a racial stereotype, degrading the woman. The Authority found the broadcast did not breach the discrimination and denigration standard as it concerned the woman as an individual rather than a recognised section of the community, and was not unfair as she was not portrayed unfairly negatively. In any case, inclusion of the footage was an editorial choice that was open to the broadcaster.

Not Upheld: Discrimination and Denigration, Fairness

The broadcast

[1]  The 1 News broadcast on 28 January 2023 reported extensively on the impact of flooding in Auckland | Tāmaki Makaurau during its Anniversary weekend. One segment focused on the displacement of families from their homes and rescue crew callouts. This segment included footage of people wading through water, leaving their homes, and one resident in particular who was displaced and spent the night at a nearby church. The broadcast then transitioned to the church, including a shot of the woman picking up a donut, followed by comments from her personally, and a representative of the church.

[2]   This footage was accompanied by the following dialogue:

Reporter:                   This West Auckland woman spent the night at a nearby church, which has opened its doors, providing food and shelter for the community. 

Displaced resident: I am alone, I’m staying here again tonight because, as I said, you know, I’ve got no other options.

The complaint

[3]  Dave Slater complained the broadcast breached the discrimination and denigration standard of the Code of Broadcasting Standards in New Zealand for the following reasons:

• The broadcast embedded negative stereotypes due to the personal characteristics of the only person filmed at one of the three temporary shelters, picking up the donut.
• ‘I consider this racist stereotyping which degraded this [woman] on national TV.’

[4]  The complainant also raised the balance and fairness standards on referral to the Authority. The Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording of the initial complaint, and where it is reasonably necessary in order to properly consider the complaint.¹ TVNZ submitted that the additional standards could not be reasonably inferred from the original complaint.

[5]  In this instance, we consider that the additional standard of fairness can be implied into the initial complaint, as the complainant specifically states that the broadcast ‘degraded this [woman] on national TV’. This statement relates to her treatment as an individual included in the broadcast. Further, our findings under the discrimination and denigration standard below mean that assessment of the broadcast’s impact on the displaced resident as an individual is reasonably necessary in order to properly consider the complaint.

[6]  However the balance standard cannot be inferred from the wording of the original complaint, which was specifically about discrimination and degrading the woman, rather than a controversial issue of public importance, as that standard requires.²

The broadcaster’s response

[7]  TVNZ did not uphold the complaint for the following key reasons:

• ‘The standard does not apply to individuals. Therefore, it has no application in this case.’ TVNZ also confirmed that their comments applied under the fairness standard, if that were to be implied.
• ‘…there is no basis to [the complainant’s] assertion that the footage of [the displaced resident] constituted a racial stereotype or that it "degraded" her.’
• ‘[The displaced resident] was featured in the report because she was a West Auckland resident who had been displaced by the flooding. The Committee can see no reason why the shot of [the resident] taking a donut should have been excluded owing to a subjective and unbidden judgment about her physical features. In our view, such a decision would have represented an undue editorial intervention. [The resident’s] physical features were of no relevance to the subject of displaced people being provided refuge.’

The standards

[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.

[9]  The fairness standard⁴ protects the dignity and reputation of those featured in programmes.⁵ 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

[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.⁶

Discrimination and denigration

[12]  The discrimination and denigration standard only relates to recognised ‘sections of the community’. From our reading of the complaint, we understand the complainant is concerned with the treatment of Polynesian people (given their reference to ‘racial stereotyping’). As Polynesian people are a recognised section of the community on the basis of race, we consider the standard applies.

[13]  However, the broadcast did not refer to the racial background of the displaced resident, and we do not consider the broadcast related to any particular race generally. Therefore, we consider the complaint, which is concerned with the treatment of the individual, is better addressed under the fairness standard.

[14]  Accordingly, we do not uphold this complaint under the discrimination and denigration standard.

Fairness

[15]  A consideration of what is fair depends on the nature of the programme and its context (including the public significance of the broadcast). Participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution.⁷

[16]  In this case, the complainant was concerned the broadcast ‘degraded’ the displaced resident during the segment, by featuring footage of her taking a donut from a box.

[17]  We do not consider viewers would have been left with an unfairly negative impression of the resident⁸ and consider her dignity and reputation were not affected.⁹ In reaching this finding, we note:

• The broadcast made no comments about the resident’s race or appearance, instead focusing on her circumstances as a resident displaced by the flooding.
• The footage complained of was less than five seconds in the context of 20 minutes of coverage of the floods.
• The resident was clearly aware she was being filmed.

[18]   The inclusion of the footage was an editorial choice that was open to the broadcaster. Any restriction of the broadcaster’s right to freedom of expression would not be demonstrably justified in these circumstances. On this basis we do not uphold the complaint under the fairness standard.

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

Susie Staley
Chair
30 May 2023  

Appendix

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

1  Dave Slater's formal complaint to TVNZ – 28 January 2023

2  TVNZ's response to the complaint – 24 February 2023

3  Slater's referral to the Authority – 26 February 2023

4  TVNZ's further comments – 28 February 2023

5  Slater's further comments – 19 April 2023

6  TVNZ confirming no further comments – 20 April 2023

¹ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
² Guideline 5.1
³ Standard 4, Code of Broadcasting Standards in New Zealand
⁴ Standard 8, Code of Broadcasting Standards in New Zealand
⁵ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
⁶ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁷ Guideline 8.2
⁸ Guideline 8.1
⁹ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand, page 20