Research Ngā Rangahau

External review of decisions 2019 - Discrimination and denigration standard

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Date published: July 2019

Reviewer: Sylvia Bell, Research Fellow and Human Rights Law specialist

Scope

The BSA invited Sylvia Bell, Human Rights Law specialist, to undertake an independent review of five decisions issued by the Broadcasting Standards Authority (BSA) under the discrimination and denigration broadcasting standard. The review was commissioned to provide feedback to the BSA, so that it can consider any areas for improvement in the delivery of its functions, or its application of the standard.

The decisions reviewed were:

Results and BSA Actions

Ms Bell agreed with the conclusions in all decisions reviewed and considered the decisions reflected a consistency of approach, were well written and were easy to understand.  The key feedback provided was:

  • In its decisions the Authority could provide a more detailed explanation of what amounts to ‘discrimination’.
  • A station that broadcasts to a small community can have a disparate impact on a relatively isolated group and this should be taken into account in future decisions.
  • With respect to the discrimination and denigration standard consideration should be given to whether:
    • the standard should align with the grounds for prohibited discrimination in the Human Rights Act 1993 (the HRA) and whether the Broadcasting Act 1989 requires amendment to reflect this
    • the HRA’s ‘inciting racial disharmony’ provisions should be referenced in the Codebook (such guidance would draw broadcasters’ attention to the existence of their overlapping obligations under the HRA in circumstances where broadcasts have the potential to incite racial disharmony).
    • explicit guidance regarding conflicts of rights should be included in the Codebook (as it can be challenging for people to understand why some comments are permissible and others not given the subtle balancing exercise required between supporting freedom of expression and avoiding discrimination and denigration).

The BSA acknowledges all of Ms Bell’s feedback and will take the recommendations into account in future decisions and also in the next review of the standard. Feedback on the relevant provisions of the Broadcasting Act will be provided to the Ministry for Culture and Heritage, the Ministry responsible for the oversight and administration of the Broadcasting Act.