Te Kani-Green and Television New Zealand Ltd - 2012-057
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Nassah Te Kani-Green
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – item reported on, and interviewed, young Māori activist who expressed his views on the Government’s sale of state assets and mining proposals – presentation of item allegedly in breach of good taste and decency, controversial issues, and discrimination and denigration standards
Standard 7 (discrimination and denigration) – views expressed by Wikatane Popata represented one end of a political spectrum – his views were described as radical and audience would have understood that they were not representative of all Māori or young Māori – item did not encourage the denigration of, or discrimination against, any section of the community – not upheld
Standard 4 (controversial issues) – interview did not discuss a controversial issue of public importance – focused on the Popata brothers and their political views – reporter took “devil’s advocate” approach and programme included viewer feedback – not upheld
Standard 1 (good taste and decency) – audience would have understood that the views expressed by Mr Popata were not indicative of all Māori or all young Māori – contextual factors – not upheld
This headnote does not form part of the decision.
 An item broadcast on Close Up on 23 April 2012, profiled Māori activists and their views on the Government’s sale of state assets and proposed mining activities. The presenter introduced the item as follows:
They have attacked the Prime Minister, occupied land they believe was stolen, and used the ‘N’ word to describe Māori Party MPs. The Popata brothers are following a tradition of Māori radicals taking on the state. Now that stretches from Hone Heke to Hone Harawira, and it’s from Harawira’s patch that they will lead a hikoi tomorrow to the Beehive, protesting the sale of state assets to foreigners. But then, just who, in their eyes, are the foreigners?
 The reporter interviewed one of the Popata brothers, Wikatane Popata, about his radical political views and the various protests in which he had been involved. Mr Popata was described as a “new Māori radical who has now lost patience with the one document [Treaty of Waitangi] that binds us together”.
 Nassah Te Kani-Green made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the suggestion that those interviewed held views that were representative of an “entire generation” was “demeaning”, “insulting”, and “serves only to fuel the growing racial divide within New Zealand”.
 The issue is whether the item breached Standards 1 (good taste and decency), 4 (controversial issues), and 7 (discrimination and denigration) of the Free-to-Air Television Code of Broadcasting Practice.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Nature of the item and freedom of expression
 We recognise the right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990, and acknowledge the importance of the values underlying that right. The right to free speech includes the freedom to seek, receive, and impart information and opinions of any kind in any form. Any restriction on the right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5).
 The Close Up item, entitled “Free Radicals”, profiled the Popata brothers – young Māori activists who held views that were at the extreme end of the Māori nationalist (indigenous rights) movement. The item was introduced by reference to a planned hikoi to Parliament protesting the Government’s sale of state assets, though the focus was primarily Wikatane Popata and his radical political standpoint. Mr Popata expressed his views, for example, that New Zealand would be “better off run by Māori”, that the goal was “taking back our country”, that “this government was never built for us”, and that “our generation has had enough, we’re taking our land back”.
 The item contained political speech and provided insight into an aspect of the ongoing debate around race relations in New Zealand. It stimulated discussion and debate, for example, at the end of the item the host invited viewers to participate in Close Up’s Facebook discussion and read out a selection of viewer feedback. There was a level of public interest in the Close Up item, which the courts have suggested is an indicator that speech is socially important.1
 We therefore think we should be cautious about interfering with the item’s broadcast and its reception.
Did the item encourage the denigration of, or discrimination against, any section of the community?
 Standard 7 (discrimination and denigration) protects against broadcasts which encourage the denigration of, or discrimination against, a section of the community.
 The term “denigration” has consistently been defined by the Authority as blackening the reputation of a class of people (see, for example, Mental Health Commission and CanWest RadioWorks)2. “Discrimination” has been consistently defined as encouraging the different treatment of the members of a particular group to their detriment (see for example Teoh and TVNZ3).
 It is also well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages discrimination in contravention of the standard (see, for example, McCartain and Angus and The Radio Network4).
 The complainant argued that the story was advertised as a “spotlight on a new generation of Māori radicals”, and stated, “As a young Māori I find it demeaning and discriminatory that TVNZ would suggest the views of a few individuals (those who were interviewed in the story) reflect that of an entire generation.”
 TVNZ argued that the item was an “important and appropriate profile of a legitimate voice in New Zealand society”. It said that viewers had the right to receive information and view programmes that were interesting and entertaining, and broadcasters had a right to broadcast such material (section 14, New Zealand Bill of Rights Act 1990).
 We acknowledge that some sectors of the community, including the Race Relations Commissioner, have reflected on the effect the coverage in the Close Up item (and a follow-up item broadcast the next evening), may have for the bigger picture of race relations in this country. The Race Relations Commissioner stated:5
In a way this kind of coverage does more harm than an individual racist statement in a public arena. Media really need to think whether it is responsible to trigger this kind of reaction in the area of race relations where there is a known level of prejudice in the general community. At the very least the media shouldn’t feed it. The effect is to confirm people’s prejudices, and reinforce a long suffering feeling on the part of many Māori that their issues are not fairly represented in the media.
 These views were reflected in the complaint, where the complainant contended that the item “served to fuel a growing racial divide in New Zealand”.
 However, our task is not to judge editorial decisions by the broadcaster regarding how best to cover race relations issues, but to assess the alleged breach of broadcasting standards in terms of the requirements of Standard 7. The question is whether the item encouraged the denigration of, or discrimination against, Māori or young Māori as a section of the community, by suggesting that the views expressed by Mr Popata were representative of an entire race or generation.
 In our view, Close Up’s adult target audience would have understood that the views expressed by Mr Popata represented one end of a spectrum of political views. The item did not state or infer that all Māori or all young Māori shared those views. The item was entitled “Free Radicals” and the Popata brothers were clearly described as “radicals”. We agree with TVNZ that “political radicalism by its very nature is often at the extreme end of the political spectrum and therefore not the viewpoint of the majority”.
 We are satisfied that the item did not blacken the reputation of Māori, or young Māori, or encourage the different treatment of those groups to their detriment, as it was clear that the views expressed by Mr Popata represented those held by a relatively small group of individuals in a Northland community.
 We therefore find that the item did not encourage the denigration of, or discrimination against, any section of the community, and we decline to uphold the Standard 7 complaint.
Did the item discuss a controversial issue of public importance requiring the presentation of significant viewpoints?
 Standard 4 states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.
 The Authority has previously stated that the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.6 The standard only applies to programmes which discuss “controversial issues of public importance”, and therefore this objective is of vital importance in a free and democratic society.
 The Authority has previously distinguished between programmes which purport to present a serious and even-handed examination of an issue – and are therefore subject to Standard 4 – and those which focus on individual perspectives and personal experiences and are therefore opinion-based.7 The question is how viewers would reasonably have perceived or understood the item in question, and whether they were likely to have been deceived or misinformed by the omission or treatment of a significant perspective.
 The focus of the Close Up item was the Popata brothers and their political views, and the scope of the interview with Mr Popata was clearly established when the presenter introduced the item, stating:
They have attacked the Prime Minister, occupied land they believe was stolen, and used the ‘N’ word to describe Māori party MPs. The Popata brothers are following a tradition of Māori radicals taking on the state… they will lead a hikoi tomorrow to the Beehive, protesting the sale of state assets to foreigners. But then, just who, in their eyes, are the foreigners? [emphasis added]
 The item was clearly presented as a personal perspective, expressed by Mr Popata in his own words. It did not purport to be an in-depth or even-handed discussion of that perspective or competing perspectives, nor did it delve into the larger debate around race relations in New Zealand. We agree with TVNZ that, given the focus of the item, viewers would not have expected a critique of the views expressed by Mr Popata.
 We therefore find that the item did not amount to a discussion of a controversial issue of public importance to which Standard 4 applied.
 In any case, balance can be achieved through the host of a programme adopting a “devil’s advocate” approach,8 or by acknowledging the existence of other significant perspectives (even if they are not discussed in detail).9 Here, the interviewer challenged the views expressed by Mr Popata, for example, he made the following comments:”
- “But when people take extreme views, you can always find contradictions…”
- “How can you take from the state while at the same time you want to smash it?”
- “The North is counting on mining to provide employment, but that too is unacceptable.”
 In addition, at the end of the item the host read out a selection of viewer feedback opposing the views expressed by Mr Popata, and a follow-up item was broadcast the next evening which included a range of views from interested parties, some objecting to Mr Popata’s radical perspective.
 We are therefore satisfied that viewers were presented with sufficient information to make their own judgement on the validity of Mr Popata’s perspective.
 For these reasons, and giving full weight to the right to freedom of expression, we decline to uphold the Standard 4 complaint.
Did the item threaten current norms of good taste and decency?
 Standard 1 states that broadcasters should observe standards of good taste and decency. The standard is primarily concerned with the broadcast of sexual material, nudity, coarse language or violence.10 The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.11
 When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast, which here includes:
- Close Up was an unclassified current affairs programme targeted at adults
- the programme was broadcast at 7pm in the PGR time-band
- the item had a level of public interest
- the programme’s adult target audience
- expectations of regular viewers.
 The complainant said that, “Ultimately, as a young Māori, I found this entire story demeaning and plainly offensive, not necessarily due to the Popata brothers’ viewpoints themselves, but to the way they were implied to be collectively held by my generation as a whole.”
 TVNZ reiterated its arguments relating to the importance of the speech and the extent to which the underlying values of freedom of expression were engaged. It said that Mr Popata was entitled to have his political perspectives and opinions voiced and the audience was entitled to receive, and be informed of, his views.
 As outlined above, we consider that Close Up’s audience would have understood that the views expressed were not representative of all Māori or all young Māori, particularly as they were clearly referred to as “radical”.
 Taking into account the relevant contextual factors, in particular that this was a legitimate item forming part of an unclassified current affairs programme targeted at adults, we consider that, while some people may have found the views expressed offensive, upholding the complaint would be an unjustifiable limit on the right to freedom of expression.
 Accordingly, we decline to uphold the complaint that the item breached Standard 1.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
21 August 2012
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Nassah Te Kani-Green’s formal complaint – 24 April 2012
2 TVNZ’s response to the complaint – 23 May 2012
3 Nassah Te Kani-Green’s referral to the Authority – 25 May 2012
4 TVNZ’s response to the Authority – 6 July 2012
1See, for example, Tipping J in Hosking v Runting PDF317.33 KB  3 NZLR 385 (CA).
2Decision No. 2006-030
3Decision No. 2008-091
4Decision No. 2002-152
6Commerce Commission and TVWorks, Decision No. 2008-014
7See, for example, Boparai and TVWorks, Decision No. 2011-086.
8See, for example, see Kiro and CanWest TVWorks, Decision No. 2006-105.
9Butler et al and TVNZ, Decision No. 2009-063
10Turner and TVNZ, Decision No. 2008-112
11Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November, 2006)