Laven and Radio New Zealand Ltd - 2020-169 (28 April 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Hans Laven
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand
[This summary does not form part of the decision.]
The Authority did not uphold a complaint about an item on Morning Report discussing data showing Wellington to have the highest assault and sexual assault rates. Discussing the causes for this, the interviewer posed the question: ‘Do we have a problem with masculinity here?’ and a discussion followed regarding the potential contribution of ‘toxic masculinity’ to Wellington’s crime rate. The Authority found the term did not carry the derogatory connotations suggested and the item did not contain the high level of condemnation or malice towards men required to contravene the standard.
Not Upheld: Discrimination and Denigration
 On 22 October 2020, RNZ’s Morning Report featured an interview with DOT loves data consultant and former Wellington mayor, Justin Lester. The interview was focused on analysis of crime statistics showing the rate of assaults in Wellington to be 10 times higher than the national average. Excerpts relevant to the complaint follow:
Ferguson: So give us some context around this. Wellington CBD's the worst?
Lester: Yes of all of the main cities we analysed, it was the worst. So Hamilton and Auckland actually had a higher number of offences for things like general theft and shoplifting. But when it comes to assaults, serious assaults and sexual assaults, Wellington has the highest ranking.
Ferguson: Do you know why?
Ferguson: Alcohol is a factor. But you've got to wonder if there's something else at play here. There's some sort of social context here where I'm assuming, perhaps wrongly, that many of these assaults are men on men or men on women. Do we have a problem with masculinity here? That people think it’s okay to become violent or sexually aggressive when they've been drinking?
Lester: It is a case of toxic masculinity. Yes, absolutely right. It's not all examples are men on men and men on women, but the vast proportion are. And that's tragic. You hear stories of young women who are assaulted and that does then cause mental health issues. And then the worst example I've heard did ultimately lead to a suicide. So that's a story that no one ever wants to hear and certainly not any parents of young people. So it is an issue for young men, drinking too much, taking advantage of the situation when people may have had too much to drink as well and offending as a result. And that's something that needs to change and needs to change immediately.
Ferguson: So how to make this safer for people? You’re saying that there have to be some changes made to toxic masculinity immediately. How do you do that?
Lester: Well, the first thing is people need to be aware that this type of offending is occurring and they need to make plans at the beginning of their night. They need to drink responsibly. They need to stick with their friends. Initiatives like Take Ten, which is a safe zone on Courtenay Place is great, but there also needs to be a presence and surveillance. So we know if those crimes are occurring between 12 o'clock and three am, there needs to be greater surveillance with local hosts, with the police and people on the lookout for one another.
 Hans Laven complained that the item breached the discrimination and denigration standard1:
The interviewer's initial question about masculinity was denigrating of the male sex/gender because it suggested that a central, inherent, genetic, defining characteristic of maleness, i.e. masculinity, is a reason for the alleged bad behaviour of a tiny proportion of people. The interviewer's failure to challenge the interviewee's reference to 'toxic masculinity' was accepting of denigration on the basis of sex/gender. The interviewer's subsequent use of the term 'toxic masculinity' compounded the denigration of men already suggested and condoned. Associating masculinity with undesirability and badness is a feminist strategy of male denigration.
 Mr Laven also argued it would be considered unacceptable, denigrating and racist to suggest that ‘Māoriness’ or ‘toxic Māoriness’ is a cause of crime and it is ‘no more acceptable and no less denigrating to do so regarding masculinity’.
The broadcaster’s response
 RNZ did not uphold Mr Laven’s complaint for the following reasons:
- ‘Mr Lester’s right to say what he thinks is preserved in section 14 of the New Zealand Bill of Rights Act 1990 and the Broadcasting Standards Authority makes it clear in its guidelines that a very high level of condemnation, often with an element of malice or nastiness will be necessary to conclude that a broadcast encouraged discrimination and denigration in contravention of the standard.’
- ‘Mr Lester’s comments are neither nasty nor malicious and therefore lack the elements necessary to contravene the standard.’
- ‘If the complainant is suggesting that it is a breach of standards for an interviewer to put a question to someone that suggests there may be another factor at play in a situation, that is not something that the broadcasting standards can address.’
 We note that RNZ failed to respond to the original complaint, or seek an extension, within the 20 working days period contemplated by the Broadcasting Act 1989. We remind the broadcaster of its obligation to respond to formal complaints within this time period2.
 Standard 6 states broadcasters should not encourage discrimination against, or denigration of, 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.
 We have listened to the broadcast and read the correspondence listed in the Appendix.
 As a starting point, we considered the right to freedom of expression. As we may only intervene when the limitation on the right to freedom of expression is reasonable and justified, it is important we weigh the right to freedom of expression against any harm potentially caused by the broadcast.3
 The harm alleged was the broadcast’s potential to encourage the denigration of men.
 The question for us is whether the broadcast had such potential to an extent where the level of harm outweighs 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 contravention of the standard.4
Discrimination and denigration
 ‘Denigration’ is defined as devaluing the reputation of a particular section of the community.5 There are many ways a broadcast can encourage denigration, including by the embedding of a trope or existing negative stereotype.6 Context is an important consideration when assessing whether or not a broadcast encouraged denigration in contravention of the standard.7
 We have considered the following relevant factors:
- Morning Report offers ‘comprehensive coverage of local and world events’.8 It often features short interviews which discuss current affairs. This particular item was focused on discussing the recent data showing the level of assault crimes in Wellington.
- While we recognise Ms Ferguson’s initial reference to ‘masculinity’ may be interpreted in the manner suggested by the complainant, the line of questioning was intended as an enquiry into possible reasons for the level of assault crimes in Wellington, rather than as an attack on men.
- Mr Lester’s response to the questions, including his statement about ‘toxic masculinity’ were genuine expressions of his analysis and opinion.9 Mr Lester was clear that this was not the only reason, and also discussed other reasons for the level of assault crimes, including the proximity of venues in Wellington, and alcohol.
- The crime statistics discussed represented a topic of public interest, and the line of questioning had value in generating discourse and debate around the issues.
- It was a discussion listeners could reasonably expect from the programme.
 We also do not consider the term ‘toxic masculinity’ carries the derogatory connotations suggested by the complainant. The term is often used to refer to traits that reflect stereotypical or traditional norms of masculinity.10 While a better term may be ‘toxic stereotypes’, inherent in the concept of ‘toxic masculinity’ is an assumption that such characteristics are not universal amongst men. The term can accordingly be understood to refer to a certain group of traits rather than a negative stereotype of men in general, or an attack directed at the male section of the community.
 The terms were used in this context as a legitimate contribution to a discussion or debate, rather than being gratuitous and calculated to hurt or offend.11 Therefore, while we acknowledge the complainant’s arguments regarding the suggestion that a ‘central, inherent, genetic’ characteristic of ‘maleness’ could be a reason for crime, the item did not, in any event, contain the high level of condemnation or malice towards men required for a finding of denigration or discrimination.
 For these reasons we do not uphold this complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
28 April 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Hans Laven complaint to RNZ – 30 October 2020
2 RNZ response to Mr Laven – 2 December 2020
3 Mr Laven’s referral to the Authority – 3 December 2020
4 RNZ’s further comments – 14 January 2021
5 Mr Laven’s final comments – 1 February 2021
1 Standard 6, Radio Code of Broadcasting Practice
2 Broadcasting Act 1989, s 8(1C) and s 8(1D)
3 Commentary: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
4 Guideline 6b
5 Guideline 6a
6 Waxman and Television New Zealand Ltd, Decision No. 2020-042 at 
7 Guideline 6d
8 Radio New Zealand “Morning report” <www.rnz.co.nz>
9 Guideline 6c. See also Steel and Television New Zealand Ltd, Decision No. 2016-079 at  and 
10 Michael Flood “Toxic Masculinity: A primer and commentary” XY (online ed, 7 July 2018). See also: Timothy Legg “What is toxic masculinity?” Medical News Today (online ed, 21 June 2020); Maya Salam “What is Toxic Masculinity?” The New York Times (online ed, 22 January 2019); Amy Morin “What is toxic masculinity?” Very Well Mind (online ed, 26 November 2020); Michael Salter “The problem with a fight against toxic masculinity” The Atlantic (online ed, 28 February 2019)
11 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16