Black and Discovery NZ Ltd - 2021-162 (26 April 2022)
- Susie Staley MNZM (Chair)
- John Gillespie
- Tupe Solomon-Tanoa’i
- Conrad Black
BroadcasterDiscovery NZ Ltd T/A Warner Bros. Discovery
[This summary does not form part of the decision.]
The Authority has upheld a complaint alleging footage of a child performing a hongi with an electric fence breached the law and order standard. The clip was sourced from social media and was shown for entertainment value, with some laughter heard from the studio as the clip was aired. The Authority found this encouraged, promoted and glamorised serious anti-social behaviour, in breach of the standard.
Upheld: Law and Order
 During a broadcast of The Project on 3 November 2021, host Tony Lyall introduced a brief clip sourced from Facebook. He made the following comments before and during the clip:
- ‘Hey, before we go tonight, I want to show this video I saw online today, bit of debate around the office if we should play it, Jesse, he didn't want to, I thought it was too good not to share. It's from [redacted] in Gisborne, and she dares her kid to hongi an electric fence. All for the princely sum of one hundred and fifty dollars. He's just got to press his nose on it. It's all he's got to do.’
- ‘Wise words: pain is momentary, failure lasts forever.’
 As the clip aired, some laughter could be heard from the studio as well as the following expressions of discomfort:
Laura Tupou: [as the boy struggles to make himself touch the fence] Oh… he actually can't.
Jesse Mulligan: Don't do it. Don't do it.
 Lyall made the following comments after the boy appeared to recoil from the electric shock:
‘There he goes, a hundred and fifty dollars. Don't worry, he is absolutely fine or at least fine enough for his mum to post the video online for our entertainment. So we thank you for that joy.’
 Conrad Black complained the broadcast breached the law and order standard for the following reasons:
- ‘[The broadcaster] presented a clip of a parent coercing a child for a large sum of money, to hongi a live electric fence.’
- ‘The child was frightened and did not want to obey. When he did, the shock threw him well back from the fence.’
- ‘This is dangerous in the extreme, particularly when the shock is to the head. This can result in serious damage.’
- ‘What [the broadcaster has] done is to present child abuse as entertainment.’
The broadcaster’s response
 Discovery NZ Ltd (Discovery) did not uphold the complaint under the law and order standard for the following reasons:
- ‘Although the Broadcast was light-hearted and humorous in tone, the Committee does not think its [humorous] presentation *encouraged others *to behave in the same manner or *promoted *the acts presented. The Standards Committee doubts any reasonable viewers would interpret the Broadcast as seriously encouraging the audience to break the law or promote any criminal or serious antisocial activity, which the Law and Order Standard is designed to protect against.’
- ‘The boy was clearly unharmed which the Broadcast made clear and the footage had been publicly posted on social media by his family.’
 The law and order standard1 states broadcasters should observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast. Its purpose is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone crime or serious antisocial activities.2
 We have watched the broadcast and read the correspondence listed in the Appendix.
 The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. Our task is to weigh the value of the programme, in terms of the right to freedom of expression and the public interest in it, against the level of actual or potential harm caused by the broadcast.
 The key question is whether the broadcast would have had the effect of encouraging viewers to break the law, or otherwise promoting, glamorising or condoning crime or serious antisocial activity. This standard does not stop broadcasters from discussing or depicting illegal or anti-social activity, even if they do not explicitly condemn that behaviour.3
 In assessing the effect of the comments, the context of the programme and the wider context of the broadcast are important considerations.4 The following contextual points are relevant:
- The clip shows a child being electrocuted in order to receive $150. The child is thrown backwards from the fence apparently as a result of the shock.
- It appeared the child was reluctant to perform a hongi with the electric fence but was encouraged to do so by an adult.
- The segment on The Project was intended for entertainment value, rather than a discussion or criticism of the event depicted.
- Some laughter can be heard from the studio during the clip.
- Lyall thanks the mother for posting it and comments on its comedic value – ‘thank you for that joy’.
- Lyall indicated that another host, Mulligan, had some misgivings about showing the footage, which may have served as a warning for viewers.
- The footage is available on social media, and the name of the mother (who posted the clip online) was included in the footage.
- Lyall states ‘don’t worry [the child’s] absolutely fine’. However, this cannot be verified from the footage and we are not satisfied this conclusion naturally follows from the fact the child’s mother posted the footage on social media.
- There was no discouragement for others to act in a similar way.
- There is little public interest in the footage.
 Reducing harm to children is a key community, legislative and policy focus in New Zealand. Laws such as the ‘anti-smacking bill’5 and the Vulnerable Children Act,6 and the actions of groups such as Child Matters,7 are only some of the ways New Zealand is trying to reduce and end harm to children.8
 A typical electric fence produces a very painful shock, which is made more dangerous by the contact area being the face, head or neck.9 This type of shock (even though it is usually harmless) could lead to injury or unconsciousness. Children are particularly vulnerable to electric fence shocks: in 1991 an accidental fatality occurred when a young child’s head contacted an electrified fence.10
 Harm from an electric fence can happen directly or indirectly, such as by falling backwards and hitting your head.11 This latter risk was depicted in the footage, as the child appears to recoil backwards due to the shock. The host could not confirm that the child was unharmed. The child was apparently coaxed by an adult to hongi the fence (by placing his face against the electric fence) for money, when reluctant to do so. In these circumstances, we consider the actions depicted in the footage amount to serious antisocial behaviour.
 Presenting behaviour as positive or humorous can incite people to copy the behaviour. There are, for example, instances of child abuse as entertainment becoming extremely successful on social media.12 We note that the person who posted the footage had her name included in the footage, which can serve to promote her social media presence.
 Some hosts were clearly uncomfortable with the content, but no warnings were provided about the nature of the footage, or the dangers of copying it.
 In these circumstances, we find the broadcast promoted, glamorised or condoned serious antisocial behaviour by:
- making it clear that inflicting pain on children for entertainment can have comedy value, will potentially go viral and maybe even make it onto television
- making a potentially dangerous activity appear funny such that others (particularly children) want to try it.
For the above reasons the Authority upholds the complaint that the broadcast of The Project on 3 November 2021 breached Standard 5 (Law and Order) of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We have concluded no order is warranted in this case. This is on the basis that publication of our decision is sufficient to publicly notify the breach of the law and order standard, censure the broadcaster and provide guidance to Discovery and other broadcasters regarding the risks associated with such content.
Signed for and on behalf of the Authority
26 April 2022
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Conrad Black’s original complaint to Discovery – 4 November 2021
2 Discovery’s decision on the complaint – 29 November 2021
3 Black’s referral to the BSA – 24 December 2021
4 Discovery’s confirmation of no further comments – 27 January 2022
1 Standard 5 of the Free-to-Air Television Code of Broadcasting Practice
2 Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
3 Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
4 Guideline 5b
5 Crimes (Substituted Section 59) Amendment Act 2007
6 Vulnerable Children Act 2014
7 Kurt Bayer “Third alleged child abuse case marks alarming start to 2022, says advocacy group” NZ Herald (online ed, 27 January 2022)
8 See also, for example, section 152 of the Crimes Act 1961
9 Josienita Borlongan “What Are the Dangers of Electric Fences?” Homesteady (21 July 2017) <www.homesteady.com>
10 “Are Electric Fences a Serious Safety risk to Humans?” Agrisellex Electric Fencing (15 May 2021) <www.agrisellex.co.uk>
11 Office of the Technical Regulator “Is your electric fence installed correctly” Government of South Australia (May 2004)
12 “Couple Temporarily Loses Custody of Children After 'Pranks' Shown on YouTube” NBC News (online ed, May 5 2017); Elizabeth Chuck “Child abuse charges against YouTube channel's mom underscore lack of oversight for kids” NBC News (online ed, 22 March 2019)