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 alleging the comment ‘Australia mugs the Black Caps’ breached the fairness, discrimination and denigration, and balance standards. The comment was typical of sports commentary and was not unfair to the Australian cricket team. As it was directed at the Australian cricket team, rather than a particular section of the community, the discrimination and denigration standard did not apply. The balance standard also did not apply.

Not Upheld: Fairness, Discrimination and Denigration, Balance

The broadcast

[1]  On 15 November 2021, Prime News opened as follows:

Tonight on Prime News, parts of Waikato in alert level three to return to level two at midnight tomorrow, Pfizer booster shots to begin for those fully vaccinated for six months. And Australia mugs the Black Caps on the way to T20 World Cup final success.

[2]  During the opening, a clip of the Black Caps playing Australia and the words ‘Black Caps mugged’ appeared on-screen.

The complaint

[3]  Marcus Wilson complained about the reference to Australia’s victory in the T20 Cricket World Cup as a ‘mugging’:

• ‘Twice in the programme, the news reader referred to the victory of Australia…as a ‘MUGGING’.
• ‘This term was extremely inappropriate and prejudicial, since it implies a sort of cowardly act of violence and theft’. It is a ‘gratuitous slur’ against Australians.
• ‘The use of the term in the news broadcast was not reporting but pushing an attitude, an example of anti-Australian hate speech as is endemic to New Zealand media and especially in NZ sports journalism’.
• ‘This is not excusable as humorous, since that is the typical excuse always put up to defend hate speech, and it is not reciprocal since the Australian media did not, and do not, denigrate NZ’.
• Defending the comments as ‘a light-hearted take’ is ‘the very definition of deeply embedded prejudice, where it is presented as humour, making the assumption that presenter and audience share the same attitude and bias’.
• ‘…it was not borne out by the facts as subsequently reported in the item. This was a closely contested sport event in which Australia won a narrow victory. The NZ captain was gracious in defeat and there was no suggestion of “mugging”’.
• The comments were not ‘distinguishable as opinion’ as ‘the presenter of a national News TV programme is not speaking as an individual giving his opinion but is reporting, as the mouthpiece of an authoritative News organisation, factual content… It is questionable whether there can be any such distinction between fact and opinion within a News broadcast; how can viewers know that the same presenter has suddenly switched from communicating facts to expressing opinions between one sentence and the next?’
• ‘This was not an isolated incident but a continuation of similar negative and derogatory comments about Australia and Australians over many years in Prime News, especially when dealing with sport’.

The broadcaster’s response

[4]  Sky Network Television Ltd (Sky) did not uphold the complaint:

• ‘the content did not contain the necessary high level of invective’ to breach the discrimination and denigration standard. While ‘the comment could come across as offensive to some people, in the context of this segment it ‘did not amount to a sustained attack on a particular group, or the encouragement of the different treatment of the members of a particular group to their detriment’.
• ‘The comments were meant as more of a light-hearted take on the Black Caps loss, as they had been playing so well leading up to the final’.
• ‘…the comments made were within the presenter’s rights of freedom of expression. The right to freedom of expression as preserved by the Bill of Rights allows individuals to express themselves in their own words and protects expressions of opinion even if they are unpopular or incorrect, provided this does not cause undue harm’.
• ‘…the comments were light-hearted in nature and clearly distinguishable as opinion’.

[5]  Sky informed us when it reviewed the broadcast the word ‘mugging’ was only found in the intro, ‘said by the presenter and the word shown on screen’.

The standards

[6]  The fairness standard¹ requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.² It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.

[7]  The discrimination and denigration standard³ 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.⁴

[8]  The balance standard⁵ states when controversial issues of public importance are discussed in news, current affairs or 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.⁶ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁷

Our analysis

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

[10]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified, in light of actual or potential harm caused.

[11]  In determining this complaint, we first note sports commentary by its nature reflects competition between teams and nations, and the audience can expect metaphorical speech to be used.⁸ While the remark was made as part of the opening to a news broadcast, the same expectations around sports commentary apply here.

Fairness

[12]  We applied the fairness standard to the Australian cricket team as an organisation, and found the comment ‘Australia mugs the Black Caps’ was not unfair to them:

• The comment was consistent with the type of metaphors used in sports commentary.
• Viewers were unlikely to take a prejudicial meaning from the comment.
• As a national sports team, the Australian cricket team are reasonably subject to critical or provocative comments.

Discrimination and denigration

[13]  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.⁹

[14]  The first step in considering the potential harm caused, is to determine whether the complaint identifies a recognised section of the community to which the discrimination and denigration standard applies.

[15]  The complainant has alleged the comment ‘Australia mugs the Black Caps’ was an example of ‘anti-Australian hate speech’. We consider the comment was referring to the Australian cricket team, rather than all Australians. The Australian cricket team is not one of the recognised sections of the community protected by the standard. For this reason, the discrimination and denigration standard does not apply. We dealt with the comment in relation to the Australian cricket team under the fairness standard above.

Balance

[16]  The balance standard only applies to discussions of controversial issues of public importance.¹⁰ This comment was a brief statement ‘teasing’ a later sports news item and therefore does not amount to a discussion; nor is Australia’s victory against the Black Caps a controversial issue of public importance. Therefore the standard does not apply.

[17]  We also note the complainant was concerned about the broadcaster classifying the comment as ‘opinion’, since it was made during a news broadcast. News broadcasts can contain remarks which amount to opinion, commentary or analysis, and viewers would have understood this remark to be such.  

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

Susie Staley
Chair
2 March 2022    

Appendix

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

1  Marcus Wilson’s complaint to Sky – 16 November 2021

2  Sky’s decision on the complaint – 13 December 2021

3  Wilson’s referral to the BSA – 12 January 2022

4  Sky’s confirmation of no further comments – 3 February 2022

¹ Standard 11 of the Free-to-Air Television Code of Broadcasting Practice
² Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
³ Standard 6 of the Free-to-Air Television Code of Broadcasting Practice
⁴ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁵ Standard 8 of the Free-to-Air Television Code of Broadcasting Practice
⁶ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁷ As above
⁸ See for example Newlove and NZME Radio Ltd, Decision No. 2019-052
⁹ Guideline 6b
¹⁰ As above