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 that comments during a documentary on New Zealand’s involvement in the World War I military campaign in Gallipoli breached the discrimination and denigration standard. In the broadcast, one of the presenters was shown a photograph of a woman behind bars, in the context of a conversation about prostitutes being available for troops stationed in Egypt. The presenter then made a derogatory comment about the appearance of the woman. The complainant submitted the comments made in the broadcast denigrated both women and sex workers. The Authority acknowledged that the comment regarding the woman’s appearance in particular, which also diminished the seriousness of some women’s experiences in World War I, was insensitive and unnecessary, and would be considered sexist and offensive to some viewers. However, in the context of the programme as a whole – a documentary depicting New Zealanders’ experiences in World War I, which carried public interest – the Authority found the comment did not reach the high threshold for finding the broadcast encouraged the denigration of, or discrimination against, women as a section of the community. The Authority noted that occupation is not a recognised ground for discrimination, so sex workers did not amount to a relevant section of the community for the purposes of the standard.

Not Upheld: Discrimination and Denigration

The broadcast

[1]  A documentary about New Zealand’s involvement in the World War I military campaign in Gallipoli was broadcast on 25 April 2020 at 8.05am on TVNZ 1.

[2]  During the broadcast the presenter, Zinzan Brooke had a discussion with Robert Montgomery, whose grandfather Charlie O’Hara served with Mr Brooke’s grandfather. Mr Montgomery explained that in Egypt, prostitutes were available for the troops. Mr Montgomery showed Mr Brooke a photo of one such woman, who was pictured behind bars. Mr Brooke remarked: ‘I would say, just on the basis of that photo, she would not have been very busy’. He then said, ‘All joking aside, the good times were rapidly coming to an end for our grandfathers’.

[3]  In considering the complaint, the members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The complaint and the broadcaster’s response

[4]  Rowena Palmer complained that the comments made in the broadcast denigrated women and sex workers and perpetuated unacceptable attitudes towards sex workers, in breach of the discrimination and denigration standard of the Free-To-Air Television Code of Broadcasting Practice.¹

[5]  TVNZ did not uphold the complaint, for the following reasons:

• The programme did not reach the threshold necessary to conclude it encouraged discrimination against, or denigration of, a section of the community.
• The remark was directed at an individual rather than a section of the community. There was no contextual basis to support the conclusion that the remark was intended to express condemnation of sex workers, or women, in general.
• It was not intended to express a high level of condemnation toward women or sex workers in general.
• The comment was recognisable as an expression of humour which the standard is not intended to prevent.

The relevant standard

[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.

[7]  The importance of freedom of expression means that a high level of condemnation, often with an element of malice or nastiness, is necessary to conclude that a broadcast encouraged discrimination or denigration in breach of the standard.² Additionally, the standard is not intended to prevent the broadcast of material that is factual, a genuine expression of opinion, or legitimate humour or satire.³

Our decision

[8]  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 complaints. Our task is to weigh the value and public interest in the broadcast, against the harm alleged to have been caused in terms of the objective of the standard described above. We may only uphold a complaint where we find actual or potential harm which justifies placing a reasonable limit on the right to freedom of expression.

[9]  The programme as a whole carried public interest and value in terms of the exercise of the right to freedom of expression. It was a documentary about the experiences of New Zealanders during World War I, which is an important part of our nation’s history. This means we would have to find a correspondingly high level of harm caused by the comments complained about, to justify regulatory intervention and upholding the complaint.

[10]  The first step in considering the potential harm caused, is to determine whether the complaint identifies a recognised section of the community to which the discrimination and denigration standard applies. The wording of the standard is based on the grounds for discrimination listed in section 21 of the Human Rights Act 1993. Those grounds clearly identify ‘women’ as a relevant class of people and a recognised section of the community. However, while ‘occupational status’, for example if someone is unemployed or receiving a Work and Income (Social Welfare) benefit,⁴ is a recognised ground for discrimination, occupation is not. On that basis we do not consider sex workers are a section of the community as envisaged by the standard and we have focussed our determination on the issue of whether the broadcast encouraged the denigration of, or discrimination against, women generally.

[11]  Turning to the particular content complained about, we do not agree with the broadcaster’s characterisation of Mr Brooke’s comment as ‘humorous’. The ‘joke’ was, in our view, an unnecessary, outdated gag that diminished the seriousness of some women’s experiences in World War I, including those who were prisoners during wartime. The image of a woman in a cage was confronting and upsetting. We agree with the complainant’s concerns that the comment on her appearance was sexist and would be offensive to some viewers.

[12]  However, in recognition of the right to freedom of expression, the Codebook guidance is clear that comments will not breach the standard simply because they are critical of a particular group, because they offend people, or because they are rude.⁵ The wider context of the broadcast is crucial to our decision, including consideration of the following factors when we assess whether a 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.

[13]  Having regard to these factors as they apply in this case, we found the comment about the woman’s appearance did not meet the threshold for encouraging discrimination or denigration of women as a section of the community, taking into account:

• The exchange was based on personal accounts of the two men’s ancestors who served together, which began by noting as a matter of fact that sex workers were available for New Zealand troops while they were in Egypt.
• The comments were not repeated or sustained.
• There was otherwise no mention of women generally, or any element of condemnation, malice or nastiness towards women in the way the story was told about the men’s experiences at war.

[14]  In these circumstances we found, on balance, the potential harm did not justify regulatory intervention or limiting the right to freedom of expression. Therefore we do not uphold the complaint.

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

Judge Bill Hastings

Chair

14 October 2020

Appendix

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

1  Rowena Palmer’s complaint to TVNZ – 25 April 2020

2  TVNZ’s response to Ms Palmer – 22 May 2020

3  Ms Palmer’s referral to the BSA – 10 June 2020

4  TVNZ’s response to the referral – 6 July 2020

5  Ms Palmer’s response to TVNZ – 7 July 2020

6  TVNZ’s confirmation of no further comments – 7 July 2020

¹ The Free-To-Air Television Code 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 1 May 2020.
² Guideline 6b
³ Guideline 6c
⁴ Human Rights Commission “Prohibited grounds of discrimination: Employment status” <www.hrc.co.nz>
⁵ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁶ Guideline 6d