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 an item on Heather du Plessis-Allan Drive regarding MPs being infected with COVID-19 and mask-wearing breached multiple broadcasting standards. The Authority found the host’s comment that she would rather get COVID-19 than wear a mask all day was unlikely to seriously violate community standards of taste and decency. The comment did not relate to a recognised section of the community as contemplated by the discrimination and denigration standard or reach a threshold necessary to constitute discrimination or denigration. Nor did the broadcast ‘discuss’ a controversial issue of public importance as required for the balance standard to apply, and the comment at issue was an opinion to which the accuracy standard did not apply and which was unlikely to mislead the audience.

Not Upheld: Offensive and Disturbing Content, Discrimination and Denigration, Balance, Accuracy

The broadcast

[1]  During a segment of Heather du Plessis-Allan Drive on 4 July 2022, the host interviewed the NZME Deputy Political Editor Jason Walls regarding an outbreak of COVID-19 amongst senior government MPs. During this discussion, du Plessis-Allan spoke about the masking requirements for staff working for Minister for COVID-19 Response Dr Ayesha Verrall:

du Plessis-Allan:    [Dr Ayesha Verrall] makes all of her staff wear face masks in the office the entire day.

Walls:                       The entire day?

du Plessis-Allan:    Yeah. So if you feel bad about your working conditions, at least you don't work for Ayesha.

Walls:                       Well, I mean, she hasn't got COVID yet, so, I don't know, maybe it's working, but, you know, I don't know. I'd hate to be wearing a mask all day. In fact, it would prevent me talking in a microphone. So the listeners probably wouldn't love that as well.

du Plessis-Allan:    I'll tell you what, I'd rather have Rona than wear a mask all day, wouldn't you? On the balance? Come on now get it over and done with.

Walls:                       Well, I haven’t had it yet either. Some people get it quite bad and some…don’t really feel it at all, so I’m interested to see where I’d fit on that spectrum. I’ll tell you what it’s definitely coming for me, so I’ll let you know when it does.

du Plessis-Allan:    You’ll get it bad Jason, cos you’re a man, so you’ll get man-COVID.

The complaint

[2]  Stephen Tamihere complained that the broadcast breached the offensive and disturbing content, discrimination and denigration, balance and accuracy standards of the Code of Broadcasting Standards in New Zealand for the following key reasons:

• The comment “I'd rather have rona than wear a mask” ‘represents serious antisocial behaviour - inconsiderate, ill-informed, conspiratorial - taking into account the context: a surge in covid infections in NZ.’
• ‘This comment discriminates against those who feel wearing a mask protects their health. It denigrates those who have died from coronavirus, those who have lost loved ones from the virus and those whose prior medical conditions, to them, warrant wearing a mask to protect themselves from the virus.’
• The host did not give a ‘balanced or fair representation of a controversial issue of public importance, nor am I aware of her making reasonable efforts to present alternative and significant viewpoints.’
• The broadcaster's opinion was ill-considered and lacked research, making it unreasonable and dangerously misleading.

The broadcaster’s response

[3] NZME did not uphold Tamihere’s complaint for the following key reasons:

• ‘Newstalk ZB is an adult targeted radio station for 30-64 year olds. Secondly, Heather du Plessis-Allan is a talk host known for her frank and forthright discussion of all manner of topics and regular listeners would be aware of this.’
• ‘The comment complained of was not directed at a recognised section of the community within the meaning of [the discrimination and denigration] standard but was the host’s expression of her opinion. The host was not telling listeners they should not wear face-masks. Consequently, this standard does not apply. In any event, the comment does not contain the requisite level of malice to constitute a breach of this standard.’
• ‘the comment complained of occurred during a discussion on which members of the Government had and had not contracted Covid. This is not a controversial issue of public importance within the meaning of [the balance] standard. Consequently, this standard does not apply. However, even if this standard were to apply, we do not believe that the segment can be viewed as lacking in balance due to the fact that it is an established principle of this standard that programmes can portray an issue from a particular perspective as long as this is clearly signalled in the programme. We consider that it would have been clear to listeners that it was the perspective of the host and Mr Walls that was being presented here.’
• The accuracy standard did not apply as the host was stating her opinion and did not refer to any facts as the basis for her opinion.

The standards

[4]  The purpose of the offensive and disturbing content standard¹ 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.²

[5]  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.

[6]  The balance standard⁴ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁵ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁶

[7]  The purpose of the accuracy standard⁷ is to protect the public from being significantly misinformed.⁸ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead.

Our analysis

[8]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[9]  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.⁹

Offensive and disturbing content

[10]  This standard regulates broadcasts that contain sexual material, nudity, violence or coarse language, or other material that is likely to cause offence or distress.¹⁰ The context in which such content occurs and the wider context of the broadcast are important when assessing whether a broadcast has breached standards.¹¹

[11]  The context to be considered for this programme is:

• Nature of the broadcast: Heather du Plessis-Allan Drive is a live radio programme that broadcasts news and the host’s opinions on current events.
• Target audience: Newstalk ZB is an adult-targeted radio station for 30-64 year olds.
• The broadcast was discussing various government ministers being infected with COVID-19 rather than mask-wearing policy.
• The host’s comment regarding a preference for getting COVID rather than wearing a mask at work all day was a brief comment and was her own opinion.

[12]  We acknowledge that the host being somewhat facetious about being infected with COVID-19 may be offensive to some people. However, the comments constituted her opinion, to which she was entitled. We do not consider these comments reached any threshold justifying regulatory intervention and a corresponding restriction on freedom of expression under this standard.

Discrimination and denigration

[13]  The discrimination and denigration standard only applies when the programme discusses one of the sections of the community it refers to and is intended to protect. The complainant has alleged that the comments made by the host amount to discrimination against people who feel wearing a mask protects their health, and denigrates people who have died from COVID-19 and their families, as well as people with underlying conditions which warrant wearing a mask.

[14]  We do not agree that people who wear a mask to protect their health, and victims of COVID-19 and their families constitute recognised sections of the community for the purposes of the standard. People with underlying health conditions that make them vulnerable to COVID-19 may constitute such a section. This is because the standard protects against discrimination on the basis of disability. However, we do not consider the comments were directed at this group. In any case, comments about an individual’s preference for contracting COVID-19 over mask-wearing at work do not discriminate against or denigrate these vulnerable people by encouraging others to treat them differently or devaluing their reputation as the standard requires.¹²

[15]  For the above reasons, we do not consider that any harm potentially caused by the broadcast outweighed the broadcaster’s right to freedom of expression. Accordingly, we do not uphold the complaint under the discrimination and denigration standard.

Balance

[16]  The balance standard only applies where a controversial issue of public importance is discussed during the broadcast. ‘Discussion’ of an issue usually occurs during broadcasts with investigative or in-depth work – brief news reports, programmes clearly focused on a particular perspective, or personal or human interest stories, may not amount to a discussion.¹³

[17]  The merits of measures used to decrease COVID-19 transmission such as mask-wearing may constitute a controversial issue of public importance. However, the focus of this broadcast was on senior government MPs being infected with COVID-19, which we do not consider to constitute such an issue. While the host did comment on her preference to be infected with the virus rather than wearing a mask at work all day, this brief, off the cuff comment and the associated exchange with Walls, did not constitute a ‘discussion’ of the merits of mask-wearing that would trigger a need for balancing comment. On this basis, the standard does not apply.

[18]  In any case:

• the requirement to present significant points of view can be negated when the issue is raised only in a brief, humorous or peripheral way,¹⁴ and we consider the issue of mask-wearing was raised in this manner during the programme.
• the exchanges with Walls balanced the flippancy of du Plessis-Allan’s comment to some degree by observing that the mask-wearing by Dr Verrall’s staff appeared to be ‘working’ and by recognising the potential seriousness of a COVID infection (ie some people ‘get it quite bad..’).

Accuracy  

[19]  The requirement for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.¹⁵ This limitation reflects the protections accorded to opinion under section 14 of the New Zealand Bill of Rights Act 1990. The freedom to express opinions, and the richness of debate it enables, is an important ingredient of a democratic society.

[20]  Nevertheless, broadcasters are obliged to make reasonable efforts to ensure any opinion is not materially misleading with regard to facts.¹⁶ The complainant alleges the opinion was ‘dangerously misleading’ with regard to facts. However, we see little risk of listeners being misled. In the context, listeners were likely to recognise the comments for what they were (the personal opinion of a radio host) and were unlikely to form conclusions regarding the merits of mask-wearing as a result of du Plessis-Allan’s views.

[21]  For the above reasons, the standard does not apply.

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

Susie Staley
Chair
22 November 2022    

Appendix

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

1  Stephen Tamihere’s formal complaint to NZME - 4 July 2022

2  NZME’s decision on the complaint - 1 August 2022

3  Tamihere’s referral to the Authority - 18 August 2022

4  NZME providing further comments - 2 September 2022

¹ Standard 1, Code of Broadcasting Standards in New Zealand
² Commentary, Standard 1, Code of Broadcasting Standards in New Zealand at page 8
³ Standard 4, Code of Broadcasting Standards in New Zealand
⁴ Standard 5, Code of Broadcasting Standards in New Zealand
⁵ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
⁶ Guideline 5.1
⁷ Standard 6, Code of Broadcasting Standards in New Zealand
⁸ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁹ Introduction, Code of Broadcasting Standards in New Zealand at page 4
¹⁰ Guideline 1.1
¹¹ Guideline 1.1
¹² Guideline 4.1
¹³ Guideline 5.1
¹⁴ Guideline 5.4
¹⁵ Guideline 6.1
¹⁶ Guideline 6.1