Moselen and Television New Zealand Ltd - 2020-058 (16 December 2020)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- J Moselen
ProgrammeHave You Been Paying Attention?
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority has not upheld a complaint about an episode of comedy gameshow, Have You Been Paying Attention?, which depicted the President of the United States Donald Trump wearing a capirote (a pointed hood as worn by members of the Ku Klux Klan). The Authority found such confronting symbolism pushed the boundaries of acceptable satire. However, it did not breach the good taste and decency standard, given the importance of freedom of expression and satire as a legitimate form of expression. Mr Trump’s public profile was also a factor. The complainant had not identified any affected section of the community to which the discrimination and denigration standard applied. Nor did the accuracy standard apply as the programme was not news, current affairs or factual programming.
Not Upheld: Good Taste and Decency, Discrimination and Denigration, Accuracy
 During Have You Been Paying Attention?, broadcast at 7.30pm on 20 May 2020, the President of the United States, Donald Trump, was depicted wearing a capirote, a pointed hood notably worn by members of the Ku Klux Klan (KKK). It was shown in the following context:
Hayley Sproull: There are new regulations at the White House, all visitors must now wear what?
Melanie Bracewell: I’ve been to the White House [Strip Club] on Queen Street, they don’t wear much…
Hayley Sproull: No, no, this is the White House in America.
Urzila Carlson: Is it masks?
Hayley Sproull: It is indeed, face masks. And Trump has supplied his own, I believe… Here it is.
[Depiction of Mr Trump wearing a capirote shown.]
 We have viewed the broadcast and read the correspondence listed in the Appendix.
 Mr Moselen complained it breached the good taste and decency, discrimination and denigration and accuracy standards because:
- The display of KKK material is highly offensive.
- The depiction of one of New Zealand’s largest trading partners’ leaders as a member of a genocidal cult is highly offensive and biased.
- The depiction of Mr Trump wearing KKK head attire, insinuating he is a KKK supporter, is inaccurate and intended to incite racial tension.
- Contrary to TVNZ’s response to the complaint, Mr Trump’s Charlottesville speech was not racist and expressly condemned the KKK.1
The broadcaster’s response
 TVNZ did not uphold Mr Moselen’s complaint for the following reasons:
Good taste and decency
- The broadcast does not fall into any of the categories at which this standard is primarily aimed, namely sexual material, nudity, violence or coarse language. The joke about Mr Trump would not offend or distress a significant number of viewers, for the following reasons:
- Have You Been Paying Attention? is an irreverent comedy gameshow, on air since July 2019. The episode was certified PG, Parental Guidance, meaning parental guidance recommended for younger viewers, and material more suited for mature audiences, but not necessarily unsuitable for child viewers when subject to the guidance of a parent or an adult.
- It is usual in the format of the programme that politicians and other high-profile people are joked about, often in the most irreverent terms.
- The picture of Donald Trump in a KKK hood was intended as a satirical commentary on both his reported dislike of wearing facemasks and his comments concerning an incident in Charlottesville where he appeared to condone the actions of white supremacists.2
- Political satire and comedy such as this are an accepted part of a free society, protected by the Bill of Rights Act 1990, and regular viewers would expect this type of material to be included.
- The image of Donald Trump would not be taken to be realistic.
Discrimination and denigration
- This standard explicitly recognises the high value placed on the broadcast of material offered in the legitimate context of a dramatic, humorous or satirical work. Also, the joke is directed at one person, Mr Trump, rather than a group of people, such that the discrimination and denigration standard does not apply.
- Have You Been Paying Attention? is a comedy gameshow to which the accuracy standard does not apply.
 The good taste and decency standard states current norms of good taste and decency should be maintained, consistent with the context of the programme and the wider context of the broadcast. Its purpose is to protect audience members from viewing or listening to broadcasts that are likely to cause widespread undue offence or distress or undermine widely shared community standards. The broad limit is a broadcast must not significantly violate community norms of taste and decency.3
 We have briefly addressed the remaining standards at paragraph  below.
 The right to freedom of expression is an important right in a democracy. It is important we weigh this right against the harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.
 The relevant segment is an example of satire, which is a legitimate and valued form of expression. For reasons expanded upon below, it was unlikely to have caused widespread offence or distress, or a level of harm justifying intervention or restriction of the right to freedom of expression.
Good taste and decency
 The complainant’s main concern appears to be that the programme negatively portrayed Mr Trump by depicting him wearing a capirote and associating him with the KKK. The standard is typically considered in relation to offensive language, sexual material, nudity and violence, but may also be considered in relation to content presented in a way likely to cause widespread offence or distress.4
 Context is crucial to assessing whether the standard has been breached. This includes the context in which the material complained about was presented and the wider broadcast.5
 We understand some viewers may not have liked the depiction of Mr Trump, or agreed with its satirical subtext that Mr Trump disliked wearing facemasks and had previously appeared to condone the actions of white supremacists in Charlottesville. We also acknowledge the inherent offensiveness of the capirote. While satire sometimes relies on shock value, the use of such confronting symbolism pushes the boundaries of acceptable satire.
 However, given the importance of freedom of expression and satire as a legitimate form of expression, and the nature of Mr Trump’s public profile, this broadcast would not have caused widespread undue offence or distress. Relevant contextual factors supporting this view are:
- The broadcast was a comedy gameshow classified PG and aired at 7.30pm.
- The programme is known for its irreverent humour targeted at politicians and public figures. The information about it on TVNZ’s website describes it as ‘a rapid-fire, rambunctious and totally riotous way to see which of New Zealand’s top comedians have the most current affairs prowess’.6
- Mr Trump is a high profile politician and public figure who could reasonably expect to be subject to such satire and scrutiny.
- Mr Trump received public criticism about his comments of 15 August 2017 concerning the Charlottesville demonstration,7 and his opposition to wearing a mask (at the time of broadcast, he had not yet been seen wearing a mask in public),8 and the satirical reference to this would likely have been understood by viewers.
 Accordingly, we do not uphold the complaint under good taste and decency.
 The remaining standards raised in the complaint are not applicable:
- Discrimination and denigration only applies to recognised sections of the community and does not apply to Mr Trump as an individual. Mr Moselen did not identify any affected section of the community to which it could apply. We also disagree with Mr Moselen that the segment was intended to incite racial tension, and consider it unlikely to have done so.
- Accuracy only applies to news, current affairs and factual programming. We have previously treated the following programmes as meeting that description:
- a quiz show when used as a method for conveying news material9
- Seven Sharp, a programme which departs from the orthodox treatment of news and current affairs by applying comedy and entertainment techniques.10
However, Have You Been Paying Attention? is not an entertaining news programme. It is a ‘comedy gameshow’, its apparent overriding objective being entertainment rather than educating viewers regarding current events. Accordingly, the standard does not apply. Given the well-known comedy gameshow format and the nature of the relevant segment, viewers would not have been misled by the segment.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
16 December 2020
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Jim Moselen’s formal complaint – 20 May 2020
2 TVNZ’s response to the complaint – 18 June 2020
3 Mr Moselen’s referral to the Authority – 20 June 2020
4 TVNZ’s confirmation of no further comment – 10 July 2020
1 Mr Moselen, in his referral to the Authority, cited Mr Trump’s speech of 14 August 2017 in which he condemned the KKK <https://www.youtube.com/watch?v=00RAteYexNA>, rather than that of 15 August 2017 in which he said there was blame on ‘both sides’ of the Charlottesville demonstration <https://www.youtube.com/watch?v=j9AYhdKTe1w>, to which TVNZ appeared to be referring in its response.
2 As above, TVNZ appeared to be referring to Mr Trump’s speech of 15 August 2017, rather than that of 14 August 2017 as cited by Mr Moselen in his referral to the Authority.
3 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
4 As above
5 Guideline 1a
6 TVNZ “Have You Been Paying Attention - About” <https://www.tvnz.co.nz>
7 “Trump again blames Charlottesville violence on both sides” BBC News (online ed, United States, 16 August 2017); Ben Jacobs and Oliver Laughland “Charlottesville: Trump reverts to blaming both sides including ‘violent alt-left’” The Guardian (online ed, United States, 16 August 2017); Rick Klein “Trump said 'blame on both sides' in Charlottesville, now the anniversary puts him on the spot” abcNEWS (online ed, United States, 13 August 2018)
8 Kevin Breuninger and Christina Wilkie “Trump says CDC advises cloth masks to protect against coronavirus, but he will not wear one” CNBC (online ed, United States, 3 April 2020); “Covid-19: Trump to defy advice for Americans to wear masks” RNZ (online ed, New Zealand, 4 April 2020); Anna North “What Trump’s refusal to wear a mask says about masculinity in America” Vox (online ed, United States, 5 May 2020)
9 Hearn and Radio New Zealand Ltd, Decision No. 2020-001
10 Craig and 4 Others and Television New Zealand Ltd, Decision No 2013-034