BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority did not uphold a complaint under the discrimination and denigration standard about a personal anecdote told by Seven Sharp presenter Jeremy Wells, describing the moment ‘Angela D’Audney sat on my desk as a 20-year-old in a leopard-print mini-skirt’. Stumbling over his words, Mr Wells then said, ‘see, it’s got me excited even thinking about it’. The complaint was that Mr Wells: outlined sexually inappropriate conduct against a female coworker; undermined and demeaned his female coworkers; and by saying it on national television, normalised and condoned sexual discrimination in the workplace. The Authority acknowledged Mr Wells’ choice of anecdote was ill-advised and inappropriate and that it may have offended some people. However it emphasised that in itself is not sufficient to find a broadcast encouraged discrimination or denigration. There is a high threshold for finding a breach, in light of the important right to freedom of expression. In this case, the comments were clearly not intended to be malicious or nasty, but rather as a light-hearted personal anecdote following ‘The Friday Countdown’ segment which celebrated 50 years of the network news. In the context, the broadcast did not encourage the denigration of, or discrimination against, women as a section of the community.

Not Upheld: Discrimination and Denigration

The broadcast

[1]  On Friday 1 November 2019 on TVNZ 1, Seven Sharp’s ‘The Friday Countdown’ segment celebrated 50 years of the network news, counting down five top news moments over that period. Following the segment, the programme hosts Melissa Stokes and Jeremy Wells discussed their own favourite news moments, which concluded the episode. Mr Wells said:

Mine is probably actually a personal moment with Angela D'Audney when she sat on my desk as a 20-year-old in a leopard-print mini-skirt – [stumbling over his words] see, it’s got me excited even thinking about it. I’ll leave you with that thought…

[2]   In considering this complaint the members of the Authority have watched a recording of the broadcast and have read the correspondence listed in the Appendix.

The complaint

[3]  Kristina Cooper made a complaint to TVNZ that Mr Wells’ comments breached the discrimination and denigration standard of the Free-to-Air Television Code of Broadcasting Practice¹, for the following reasons:

• Mr Wells outlined sexually inappropriate conduct at work against a female co-worker. This is completely inappropriate conduct in a workplace, and demeans and undermines his fellow female colleagues.
• By saying it on national television on a news-type programme, Mr Wells normalised and condoned sexual discrimination in the workplace.

[4]  In her referral of the complaint to the Authority, Ms Cooper added:

• ‘Any HR department in 2019 would instantly recognise this as sexual harassment and unacceptable conduct in the workplace. It would immediately result in some form of disciplinary action including a written warning, training on appropriate behaviour, an apology and perhaps even reassignment. If it was repeated conduct, it may even result in termination of employment.’
• ‘For TVNZ to characterise this as a joke and humorous, shows a complete misalignment with the current values and expectations of society.’
• ‘This is casual sexism at its worst, and normalises treating women in the workplace as valued by their looks, and the length of their skirts, rather than by their contribution to the success of the company.’
• It sent unacceptable messages to both young women (that they will be judged by their looks in the workplace) and young men (that it is appropriate to comment on the appearance of female coworkers and become sexually excited by them, and verbalise this).
• ‘While Seven Sharp may be portrayed as a light-hearted take on the News, it still forms part of TVNZ’s flag-ships news hour. This is not a comedy show or satire.’ 
• ‘For TVNZ to deem this acceptable and not denigrating the worth of women in the workplace, exemplifies an attitude that should have disappeared in the 1970s, and was never appropriate even then.’

The broadcaster’s response

[5]  TVNZ did not find any breach of the discrimination and denigration standard, saying:

• The detailed guidance from the BSA Codebook and Authority decisions establish a high threshold for finding a breach. In practice this has usually been where comments: carry a high level of invective; portray a section of the community as inherently inferior; encourage negative racist stereotypes; or amount to hate speech or vitriol.
• Authority decisions also establish that a programme’s humorous or satirical intent is highly relevant when assessing whether there has been a breach. Mr Wells’ comment was intended to be humorous, in line with ‘The Friday Countdown’ segment.
• Mr Wells’ comment was not nasty or pejorative and did not portray any section of the community as inherently inferior or as having inherent negative characteristics.
• The comment, while noting Mr Wells’ ‘excitement’ did not portray any group in a highly offensive way.
• Overall, TVNZ did not consider that Mr Wells mentioning this personal ‘favourite news moment’ would lead to the denigration of, or discrimination against, any section of the community.

Our analysis and the outcome

[6]  The discrimination and denigration standard (Standard 6) 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. ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment. ‘Denigration’ is defined as devaluing the reputation of a particular section of the community.²

[7]  The standard also explicitly recognises the importance of the right to freedom of expression. The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of any complaint. Our task is to weigh the value of, and public interest in, the broadcast complained about, against the level of actual or potential harm that may be caused by the broadcast, with reference to the objectives of the standard described above. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[8]  The guidelines and Codebook guidance for the application of the discrimination and denigration standard state, in recognition of the importance of the right to freedom of expression:

• The importance of freedom of expression means that a high level of condemnation, often with an element of malice or nastiness, will be necessary to conclude that a broadcast encouraged discrimination or denigration in breach of the standard.³
• Comments will not breach the standard simply because they are critical of a particular group, because they offend people, or because they are rude. The Codebook recognises that allowing the free and frank expression of a wide range of views is a necessary part of living in a democracy.⁴
• Serious commentary, factual programmes, and legitimate drama, humour and satire, are valuable forms of speech, and are unlikely to breach the standard unless the content of the broadcast amounts to hate speech or a sustained attack on a particular group.⁵

[9]  Taken together, what these principles mean is that there is a high threshold for finding that a broadcast caused harm at a level that justifies restricting freedom of expression.

[10]  The harm alleged in this case is a harm to society generally and to women as a group, caused by sending unacceptable messages about appropriate workplace conduct. We acknowledge the complainant’s concerns in this respect, having regard to current community attitudes and the increased focus, both globally and in New Zealand, on related issues.

[11]  As a group we discussed at some length whether the comment complained about was offensive and whether the person who said it was intending it to be offensive. We considered whether it would have offended a wide range of people, and we concluded it may offend some people. In terms of intention, we agreed that Mr Wells did not intend his remarks to be offensive, even though in our view they were ill-advised and inappropriate.

[12]  However, the fact that the comments may have offended some people and may be seen as inappropriate, is not sufficient on its own to find a breach of the discrimination and denigration standard, as noted in the Codebook guidance. The Authority’s role is to apply the discrimination and denigration standard and guidelines as outlined in the Free-to-Air Television Code, with reference to the particular contextual factors surrounding this broadcast.

[13]  In addition to the principles above, the following factors are relevant to our assessment of whether the broadcast went too far, to the point of encouraging discrimination or denigration:⁶

• the language used
• the tone of the person making the comments
• the forum in which the comments were made, for example, a serious political discussion, or a satirical piece
• whether the comments appeared intended to be taken seriously, or whether they were clearly exaggerated
• whether the comments were repeated or sustained
• whether the comments made a legitimate contribution to a wider debate, or were gratuitous and calculated to hurt or offend.

[14]   Having regard to the principles of this standard and the factors listed above, we reached the view that overall, in the context of the item, Mr Wells’ comments did not reach the threshold for encouraging the denigration of, or discrimination against, women as a section of the community. Factors supporting this view included (responding to the list above):

• Mr Wells was recounting a personal anecdote involving one individual who was a well-known New Zealand newsreader. He did not make any comment on women or women’s appearance generally. This did not amount to hate speech or an attack against women as a group.
• Mr Wells’ tone was not nasty or malicious. It was consistent with audience expectations of Mr Wells’ style and brand of humour. The broadcaster has submitted the comment was meant to be humorous, and we noted it was met by laughter from his female co-host Ms Stokes.
• In terms of the forum in which the comments were made, the complainant submitted that the comment was made on a national news-type programme which elevated its impact and potential influence on societal attitudes. However, previous Authority decisions have recognised that Seven Sharp, while it is considered unclassified news and current affairs for the purposes of the Code, mixes current affairs and entertainment and often applies a non-traditional, light-hearted or comedic treatment to topical stories and issues.⁷ Additionally, it includes frequent banter and humour among the hosts, and the hosts are known to offer their own views and opinions on a wide range of topics. The segment preceding Mr Wells’ comment is a regular Friday-night feature at the conclusion of the week’s episodes, ‘The Friday Countdown’. This particular edition celebrated 50 years of the network news and counted down five top news moments since its inception. It was not a serious news or current affairs story, but rather a light, human-interest-type segment briefly looking at the history of the news.
• There is also an established audience expectation in relation to Mr Wells’ style of humour. Ms Stokes’ reaction supported the view his anecdote was not intended to be nasty or offensive or as making any serious comment on attitudes towards women or female co-workers generally.
• The comments were not repeated or sustained; this was a brief personal anecdote at the conclusion of the episode, responding to ‘The Friday Countdown’ segment celebrating the network news.
• While we accept Mr Wells’ anecdote did not carry public interest or contribute to wider debate, we are satisfied it was not calculated to hurt or offend, notwithstanding that some people may be offended by it. Although we consider it was ill-advised and inappropriate, as we have said it does not automatically follow that it reached the high threshold for finding it encouraged discrimination or denigration in relation to a section of the community.

[15]  In these circumstances, we did not find harm of the nature described in the complaint at a level which outweighed the right to freedom of expression, or which justified regulatory intervention in this case.

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

Judge Bill Hastings

Chair
16 June 2020

Appendix

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

1  Kristina Cooper’s formal complaint – 1 November 2019

2  TVNZ’s decision on the complaint – 28 November 2019

3  Ms Cooper’s referral to the Authority – 23 December 2019

4  TVNZ’s response confirming no further comment – 27 February 2020

¹ The Free-to-Air Television Code of Broadcasting Practice was refreshed with effect from 1 May 2020. This complaint has been determined under the April 2016 version of the Free-to-Air Television Code of Broadcasting Practice as the relevant broadcast pre-dated the 1 May 2020 version.
² Guideline 6a
³ Guideline 6b
⁴ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁵ As above
⁶ As above
⁷ See, for example: Guthrie and Television New Zealand Ltd, Decision No. 2019-090 at [15]; Diprose and Television New Zealand Ltd, Decision No. 2017-067 at [5]