Soh and NZME Radio Ltd - 2021-075 (15 September 2021)
- Susie Staley MNZM (Chair)
- Leigh Pearson
- Paula Rose QSO
- David Soh
BroadcasterNew Zealand Media and Entertainment
[This summary does not form part of the decision.]
The Authority has not upheld a complaint that a statement on Coast FM news, ‘A herd of international students is about to stampede into New Zealand’, breached the discrimination and denigration standard. The Authority found ‘international students’ did not amount to a section of the community under the standard. In any event, the statement would not have reached the threshold required for finding a breach. There were issues with the retention of the broadcast by NZME, and the Authority noted this was a serious procedural concern.
Not Upheld: Discrimination and Denigration
 The 9am news bulletin on Coast FM broadcast on 11 May 2021 reported on 400 international students due to arrive in New Zealand in June.
 NZME informed us it did not have a copy of the broadcast, as its programming logs only go back 60 days, and when it received notice of the referral, the broadcast was no longer available. NZME provided a copy of the script for the news bulletin:
A herd of international students is about to stampede into New Zealand.
The Government is setting aside 500 spaces a month in managed isolation for skilled and critical workers...including 400 international students next month.
 David Soh complained the broadcast breached the discrimination and denigration standard. In his referral to the BSA, he also raised the good taste and decency standard. Under section 8(1B) of the Broadcasting Act 1989, we are only able to consider standards raised in the original complaint to the broadcaster. The original complaint did not contain any arguments beyond identifying the broadcast subject and the discrimination and denigration standard. It therefore cannot be interpreted as explicitly or impliedly raising the good taste and decency standard, and we cannot consider that standard now.
 In his referral, Mr Soh submitted:
- ‘The two key words “herd” and “stampede” are demeaning, insulting, offensive and denigrating, not only to future international students but the present and past international students.’
- ‘The news reporting shows a hostile and toxic attitude… “herd” and “stampede” are crude and rude colouring.’
- International students are a section of the community under ‘occupational status in the BSA guidelines…they pay high tuition fees, contributing greatly to NZ economy. They leave home and choose NZ as a place of learning. They have to overcome language and cultural challenges. They should be encouraged, nurtured and supported in their endeavour.’
The broadcaster’s response
 NZME did not uphold the complaint, and submitted:
- The segment did not refer to a recognised section of the community for the purposes of the standard. ‘The international students were referred to generally and were not distinguished by nationality or ethnicity.’
- ‘In any event, the words “herd” and “stampede” used here, although somewhat colourful, do not meet the required threshold to constitute a breach of this standard.’
- ‘“Herd” was used here as a collective noun to suggest a group that may be arriving into New Zealand at the same time, while stampede suggests a group that may be noisy and/or numerous. There was no suggestion that international students should not be allowed into New Zealand. These words do not carry a high level of condemnation or any element of malice or nastiness, [which]…will be necessary to conclude that a [broadcast] encouraged discrimination or denigration…’
 The discrimination and denigration standard1 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. It protects sections of the community from verbal and other attacks, and fosters a community commitment to equality.
 ‘Denigration’ is defined as devaluing the reputation of a particular section of the community. ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment.2
 We have read the script for the broadcast and read the correspondence listed in the Appendix.
 We have also considered the important right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of ideas, information and opinions and the public’s right to receive those. We may only intervene and uphold a complaint where the broadcast has caused actual or potential harm at a level that outweighs the right to freedom of expression.
 Where discrimination and denigration complaints are concerned, the importance of freedom of expression means that a high level of condemnation, often with an element of malice or nastiness, will usually be necessary to find a breach of the standard.3
 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.
 While we recognise the complainant has a concern in respect of comments which he considered harmful to international students, they are not a homogenous group identifiable under one of the grounds listed in the standard. International students do not share a race, religion, political or cultural beliefs.
 While ‘occupational status’ is a recognised ground for discrimination, we consider this term is properly interpreted in a similar way to ‘employment status’ under s21 (Prohibited grounds of discrimination) of the Human Rights Act 1993. Under s21(1)(k) of that Act the ‘employment status’ ground only applies in respect of someone who is unemployed or receiving a Work and Income (Social Welfare) or Accident Compensation Corporation benefit. Being a student is not the equivalent of being unemployed. Many students work part-time. In addition, full-time students are not ‘available’ for full-time work, as is required by Stats NZ’s definition of unemployment. On that basis we do not consider international students are a section of the community as envisaged by the standard.
 In any event, the standard generally requires a high level of condemnation to justify limiting the broadcaster’s right to freedom of expression, and we do not consider the metaphors of ‘herd’ and ‘stampede’ would have met the threshold for finding a breach.
Retention of broadcast material
 Under section 30(1) of the Broadcasting Act 1989, the Authority ‘may from time to time make and promulgate rules in relation to broadcasters to ensure that recordings of programmes broadcast by them are retained by the broadcaster or some other person, and are able to be obtained by the broadcaster when required to do so by the Authority’. Failure to comply with any such rules is an offence and carries a possible fine of up to $5,000.7
 There are currently no formal rules in place. The Codebook however records that ‘All broadcasters are expected to retain recordings of all broadcasts for 35 days. In the event of a complaint, this assists the broadcaster to argue their point of view and ensures the BSA gains a correct understanding of the content, context and tone of the broadcast.’8
 In Yang and NZME Radio, we declined to determine the complaint, as NZME had not retained the broadcast (for the same reason as in this complaint – programme log expiry). Fortunately, in this instance, NZME has been able to provide the script for the news bulletin which is consistent with the complaint and its own response, and we considered that was sufficient to enable us to determine the complaint. However, generally complaints determination is heavily dependent on the context in which the content occurred (including the tone of any relevant comments), as well as the wider context of the broadcast. In other situations, where such contextual factors are more critical to the outcome, the inability to listen to the broadcast may leave us unable to consider the complaint.
 Under the Broadcasting Act complaints process,9 once a broadcaster receives a complaint about a broadcast, it must respond within 20 working days. A complainant then has 20 working days from receipt of the broadcaster’s response to refer the complaint to the Authority. This means that once a complaint about a broadcast is received, the broadcaster should be aware that broadcast could be the subject of a formal referral to the BSA and it is expected the broadcaster will retain a copy of that broadcast for longer, for the purpose of seeing out the BSA complaints process.
 In Yang we also noted:10
…although the unavailability of broadcasts is not an obstacle we are faced with often, we will consider as part of our review of the Broadcasting Codes, in consultation with broadcasters, whether it is appropriate to make rules for retention of broadcasts. Formal rules that clearly outline our expectations regarding which broadcasts ought to be retained, and for how long, may give greater guidance to all broadcasters in order to prevent this type of situation, and would also give the Authority the ability to impose a sanction where broadcasts are not retained.
This review is currently underway.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
15 September 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 David Soh’s complaint to NZME – 11 May 2021
2 NZME’s response to the complaint – 10 June 2021
3 Mr Soh’s referral to the Authority – 8 July 2021
4 NZME explaining audio unavailable – 21 July 2021
5 NZME’s comments on referral – 22 July 2021
6 Mr Soh’s final comments – 23 July 2021
1 Standard 6 of the Radio Code of Broadcasting Practice
2 Guideline 6a
3 Guideline 6b
4 Human Rights Commission “Prohibited grounds of discrimination: Employment status” <www.hrc.co.nz>
5 Stats NZ “Employment and Unemployment” <www.stats.govt.nz>
6 Guideline 6b
7 Section 30(4), Broadcasting Act 1989
8 Broadcasting Standards in New Zealand Codebook, page 5
9 See Complaints Process and Other Guidance, Broadcasting Standards in New Zealand Codebook, page 55
10 At