BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The Authority has not upheld two complaints about an item on The Project. A presenter commented ‘I think happily we don’t have many Americans in New Zealand so we probably won’t end up in that situation’, in response to a question from another presenter, about whether New Zealanders would start demanding a right to bear arms as in the United States, in light of a recent knife attack. The complainants alleged these comments were discriminatory against Americans, and breached the discrimination and denigration standard. The Authority acknowledged the comments had the potential to cause offence, but found they did not meet the high threshold required to breach the standard and justify restricting the right to freedom of expression.

Not Upheld: Discrimination and Denigration

Broadcast

[1]  An item on The Project broadcast on TV Three on 11 May 2021, discussed escalating violence in New Zealand and the possibility of New Zealanders demanding a right to bear arms, in light of a recent knife attack at a Dunedin Countdown supermarket:

Presenter 1:    Am I taking this too far in thinking ok, if we’re going to say violence is escalating and we've got to learn to defend ourselves, how long before as a nation we're demanding the right to bear arms? Because that's what it's all about in America, isn't it? You arm yourself for protection and look what happens there.

Presenter 2:    I think happily we don't have many Americans in New Zealand so we probably won't end up in that situation.

The complaint

[2]  Karen Van Peursem and Jim Fox complained the broadcast breached the discrimination and denigration standard:

Ms Van Peursem:

• ‘The complaint is [about] the discriminating expression [the presenter] made; [it was discriminatory] in stating that an entire nationality of people are not wanted here.’
• ‘I have lived here for 33 years, am a dual-citizen and am certainly aware of some anti-US sentiment, but to hear this on a major station and by a known and experienced broadcaster, on broadcast TV during a heavy-watched time period, is shocking.’
• ‘No one on the panel questioned or challenged the appropriateness of this comment then or at any point during the programme. There was no apology or qualification of the comment by the perpetrator.’
• ‘Such a comment by a known broadcaster incites violence and open discrimination against Kiwi-Americans.’

Mr Fox:

• ‘[The comment] is insulting to American citizens living in New Zealand.’
• ‘Just try replacing Americans in the quote “thankfully there aren’t many Americans in this country” with…Chinese, Indians, Mexicans, Pacific Islanders. Take your pick and see if that is not offensive. Why is discriminating against Americans any different.’

[3]  Ms Van Peursem in her referral to the Authority also submitted that the broadcaster, in its response to her, added to the discrimination ‘by suggesting that a demand to bear arms would accompany a large number of Americans living here’.

[4]  However, the Authority has not considered the broadcaster’s response in this regard, as the Authority’s jurisdiction is limited to consideration of the broadcast against the discrimination and denigration standard, in terms of the original complaints.

The broadcaster’s response

[5]  Discovery did not uphold the complaints:

• ‘This is a high threshold to reach and we do not accept that it was breached on this occasion.’
• ‘[The presenter’s] comment was intended to be a reference to gun violence in America and its cultural belief in the right to bear arms, rather than to discriminate or denigrate all American people. She simply meant that she thought it unlikely New Zealand would ever get to a point of demanding the right to bear arms as our country does not have a large number of Americans living here.’
• ‘While the Committee acknowledges that [the presenter’s] phrasing may have sounded clumsy to some viewers, we are satisfied the comment did not contain the level of malice or nastiness required to reach the threshold to find a breach of this standard.’

The standard

[6]  The discrimination and denigration standard¹ protects against broadcasts which encourage the denigration of, or discrimination against, 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. It protects sections of the community from verbal and other attacks, and fosters a community commitment to equality.

[7]  ‘Denigration’ is defined as devaluing the reputation of a particular section of the community. ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment.² 

Our analysis

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

[9]  We have also considered the important right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of ideas, information and opinions and the public’s right to receive those. We may only intervene and uphold a complaint where the broadcast has caused actual or potential harm at a level that outweighs the right to freedom of expression.

[10]  Where discrimination and denigration complaints are concerned, the importance of freedom of expression means that a high level of condemnation, often with an element of malice or nastiness, will usually be necessary to find a breach of the standard.³ The importance of the right is also recognised in the guidelines to the standard, which state it is not intended to prevent the broadcast of material that is a genuine expression of serious comment, analysis or opinion.⁴

Discrimination and denigration

[11]  The standard applies only to recognised ‘sections of the community’, which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.⁵ We are satisfied that Americans constitute a recognised section of the community for the purposes of this standard.  

[12]  First, we acknowledge the complainants’ concerns and accept that the comment had the potential to cause offence.  

[13]  However, in the context of this broadcast, applying the relevant factors,⁶ we consider the presenter’s comments did not breach the standard. In particular:

• The Project is an alternative news and current affairs programme that regularly includes robust discussion and expression of opinion on the part of its presenters.
• The relevant segment addressed apparent escalating violence in New Zealand and what people can do to protect themselves – a matter of significant public interest.
• Ms Lloyd’s comment addressed a question regarding the potential for New Zealanders to respond by demanding the right to bear arms. It was an ill-informed and, as suggested by the broadcaster, ‘clumsy’ contribution to this discussion. However, we consider it was a genuine expression of opinion on a matter of public interest.
• The comment did not appear to carry any malice or intent to encourage the discrimination against or denigration of Americans.
• The comments were brief and the other presenters did not engage with or endorse them.

[14]  Taken together, these factors mean the broadcast did not reach the high threshold for finding harm at a level that justifies restricting freedom of expression.

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

Susie Staley
Acting Chair
24 August 2021

Appendix

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

1  Karen Van Peursem’s complaint to Discovery – 11 May 2021

2  Jim Fox’s complaint to Discovery – 11 May 2021

3  Discovery’s response to Ms Van Peursem – 1 June 2021

4  Discovery’s response to Mr Fox – 1 June 2021

5  Ms Van Peursem’s referral to the Authority – 1 June 2021

6  Mr Fox’s referral to the Authority – 1 June 2021

7  Discovery’s confirmation of no further comments – 3 June 2021

¹ Standard 6 of the Free-to-Air Television Code of Broadcasting Practice
² Guideline 6a
³ Guideline 6b
⁴ Guideline 6c
⁵ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁶ Guideline 6d