BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has not upheld a complaint regarding comments made by Louise Wallace about overweight people, during a panel discussion on AM. The complaint was that the comments were in extremely bad taste and denigrating and discriminatory towards ‘fat women’ in particular. The Authority accepted the comments clearly had the potential to offend. However, noting in particular that the programme hosts challenged Wallace’s comments and made countering remarks, the Authority concluded that the comments did not meet the high threshold for finding the broadcast caused harm at a level that justified regulatory intervention or restricting freedom of expression.

Not Upheld: Discrimination and Denigration, Good Taste and Decency

Broadcast

[1]  During AM’s regular panel segment, broadcast on Three on 8 June 2022, media personality Louise Wallace and another panellist were asked for their views on, firstly, taking a hard line in regards to addressing high rates of gang violence and crime. They were then asked by the hosts, Melissa Chan-Green and Ryan Bridge, whether they would take a similarly tough approach in response to increasing rates of obesity-related health issues in Aotearoa New Zealand. The discussion included the following:

Chan-Green:         Another issue we’ve spoken about this morning is our high rates of obesity and the impact that that is having on knee surgeries – people having them younger and younger and about more than a third of New Zealanders classed as obese. Would you advocate for the same, tough reaction on an issue that is facing our society or is this different?

       …

Wallace:               Fundamental… just tape over people’s mouths with gaffer tape. Oh, I mean, you know, sooner or later, surely it’s what goes in here [gestures towards mouth]… and I think that unfortunately we have normalised the idea of being overweight, normalised it, and I’ll give you an example of that is that when I was overseas quite recently, you would pass by these huge ads for fashion… And there would be distinctly overweight women like – dare I say it – fat women, in these ads advertising clothes. And that is now seen as normal.

Chan-Green:        Doesn’t it reflect what normality is? [interrupted]

Wallace:               Doesn’t mean it’s right, though, and it’s not right because people are getting sick.

Bridge:                 The thing about it is some people can’t help but be overweight, there are thyroid issues, there are people taking certain types of medication. I know it’s in the minority, but you can’t paint everyone with the same brush.

Chan-Green:         You can’t look at somebody in a window who’s modelling a fashion brand and perhaps they’re a size 16 and say that they’re unhealthy. That doesn’t mean that they’re unhealthy.

The complaint

[2]  Kareena Udy complained that the broadcast breached the discrimination and denigration, and good taste and decency standards (among other standards):

• ‘The interview with Louise Wallace where she said fat women should have their mouths gaffer taped and many times mentioned how fat women are not normal people. This is inaccurate information, denigrating and discriminating women if they did not look like her and her friends.’
• ‘Having such an ignorant and arrogant opinion aired on your show is in extremely bad taste and disgusting. The interviewers were obviously blindsided by her comments but didn’t even try to shut her down.’
• Having described her own experiences, ‘I can only imagine the harm she has done to those more fragile than myself battling with self-esteem issues and the stigma associated.’
• (On referring the complaint to the Authority) ‘I have never made a complaint [to] a broadcaster in my life but am still upset by her comments a month later.’

Scope of complaint to the Authority

[3]  Udy referred her complaint to the Authority only under the discrimination and denigration standard. However, the good taste and decency standard is also relevant to the complainant’s concerns, in particular that Wallace’s comments were ‘in extremely bad taste and disgusting’. Both standards were raised in the original complaint and have been responded to by the broadcaster, meaning we are able to look at them now.¹ We have therefore made our decision under both the discrimination and denigration, and good taste and decency standards in order to properly address the issues raised.

The broadcaster’s response

[4]  Discovery NZ Ltd did not uphold the complaint, saying:

Discrimination and denigration

• The broadcast did not reach the threshold required for the standard to be breached, as it did not amount to ‘hate speech or a sustained attack on any sections of the community.’
• ‘Ms Wallace’s perspective was challenged by the AM presenters and we maintain the discussion was typical of the free and frank expression of views AM routinely features.’

Good taste and decency

• In terms of relevant contextual factors:
  • AM is a news and current affairs programme that screens at a scheduled time each day and has an adult target audience.
  • The Broadcast did not contain any sexual material, depictions of graphic violence or coarse language.
  • The panel discussion is a regular feature of the programme and guests are expected to offer their opinions to viewers.
  • The discussion was typical of the kind of robust discussion that routinely features in the panel segments on the programme.
  • Both presenters questioned Wallace’s comments and suggested that arguably the advertising she had referred to presented what is normal; that some people are overweight due to health concerns or medications, and that being size 16 was not necessarily unhealthy.
  • Wallace presented her personal opinion as part of a lively panel discussion, which is what was expected from her. ‘While we appreciate her strong viewpoint was polarising, we do not agree that expressing it constitutes a breach of broadcasting standards.’
• Overall, ‘in the context of a panel discussion, the Broadcast did not exceed the boundaries of the good taste and decency standard and would not have caused widespread offence amongst regular viewers of AM.’

The standards

[5]  The discrimination and denigration standard² 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.

[6]  ‘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.³ 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

[7]  The good taste and decency standard⁵ states current norms of good taste and decency should be maintained, consistent with the context of the programme. The standard is intended to protect audiences from content likely to cause widespread undue offence or distress, or undermine widely shared community standards.⁶

Our analysis

[8]  We have watched the broadcast and read the correspondence listed in the Appendix.

[9]  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. Our task is to weigh that right, and the value and public interest in the broadcast, against the potential harm caused. We may only intervene and uphold a complaint where the broadcast has caused actual or potential harm at a level that justifies restricting the right to freedom of expression.

Discrimination and denigration

[10]  The discrimination and denigration standard applies only to recognised ‘sections of the community’ consistent with the grounds for discrimination listed in the Human Rights Act 1993.⁷

[11]  The complaint identifies ‘fat women’ as the group facing discrimination from this programme. The broadcast referred to overweight people, as well as people with medical conditions, medication or other health issues causing weight problems (‘The thing about it is some people can’t help but be overweight, there are thyroid issues, there are people taking certain types of medication’).

[12]  The Authority has previously found ‘recognised sections of the community’ under the discrimination and denigration standard, and similarly the Human Rights Act, do not include body size or weight.⁸ The general consensus and expert opinion appear to indicate that New Zealand law would need to change to recognise discrimination against overweight people.⁹  

[13]  Even if we were to find this broadcast commented on a recognised section of the community, we do not consider it reached the high threshold for finding it encouraged discrimination against or denigration of that group.¹⁰

[14]  We understand that Wallace’s comments will have been very upsetting to some in the audience. However the Codebook and past Authority decisions tell us that comments will not breach this standard simply because they are critical of another group, because they offend people, or because they are rude.¹¹ The guidelines to the standard recognise the importance of the right to freedom of expression, and protect the expression of opinion.¹² Although they may be unpopular or controversial, Wallace was expressing her personal opinions. The programme hosts then immediately offered countering views which challenged those opinions, including:

• ‘Doesn’t it reflect what normality is?’ [referring to what Wallace described as ‘overweight’ and ‘dare I say it, fat’ fashion models]
• ‘The thing about it is some people can't help but be overweight, there are thyroid issues, there are people taking certain types of medication. I know it’s in the minority, but you can't paint everyone with the same brush.’
• ‘You can't look at somebody in a window who's modelling a fashion brand and perhaps they're a size 16 and say that they're unhealthy. That doesn’t mean that they're unhealthy.’

[15]  Overall we reached the view that the potential harm caused by this broadcast did not reach the high threshold required under the standard to justify regulatory intervention or limiting the broadcaster’s and Wallace’s right to freedom of expression in this instance.

Good taste and decency

[16]  The good taste and decency standard protects against broadcasts likely to cause widespread undue offence or distress or undermine widely shared community standards – in the context in which the content occurred and the wider context of the broadcast.¹³

[17]  As the wording of the standard emphasises, context is crucial in applying the standard. Wallace’s comments clearly had the potential to offend people (and evidently did offend multiple people who made complaints to the broadcaster, and others who reacted publicly to the comments). The comments had the potential to offend and cause harm to not only people who are overweight or struggle with their weight, but also young people and people who are experiencing body image issues and/or eating disorders, who may be more sensitive to such comments. The suggestion that people of a certain size are not ‘normal’, unhealthy, and the imagery of gaffer-taping their mouths in particular were likely to be upsetting.

[18]  The question for the Authority is whether in the wider context Wallace’s comments caused actual or potential harm at a level that justifies regulatory intervention and restricting freedom of expression. We have concluded the broadcast did not meet this threshold, taking into account the following contextual factors:¹⁴

• The nature of the programme and target audience: AM is a breakfast news and entertainment programme with a wide target audience. Children may have been watching before school (though were unlikely to be doing so unsupervised).
• Audience expectations of the programme: Robust, opinionated discussions are within audience expectations of AM and of its daily panel segments.
• This was a live broadcast.
• The comments were made by a guest rather than a host – and one who is known for having strong opinions (supported by a remark from the other panellist earlier in the broadcast, ‘that’s not like you’ when Wallace stated she would ‘come down tough’ on the issue of gangs).
• The comments were part of a discussion about an issue of public interest (tackling high obesity rates, following reports knee surgeries were becoming necessary at a younger age).
• The hosts immediately challenged Wallace’s comments several times, but did not explicitly disagree with or condemn them (although this did occur in a follow-up broadcast two days later). As discussed above, this included the hosts noting that plus-size models reflect reality, obesity can have numerous causes, and that being overweight doesn’t necessarily mean someone is unhealthy.¹⁵ This provided multiple arguments that went against Wallace’s opinion.

[19]  We acknowledge that the complainant found the comments in the broadcast offensive. However, taking into account the above factors and in particular that the comments were made by a third party rather than the broadcaster, and that the hosts immediately countered Wallace’s comments which helped to mitigate their potential offensiveness and impact, we do not uphold the complaint under the good taste and decency standard.

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

Susie Staley
Chair
19 October 2022

Appendix

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

1  Kareena Udy’s complaint to Discovery – 11 June 2022

2  Discovery’s response to Udy and other complainants – 6 July 2022

3  Udy’s referral to the Authority – 6 July 2022

4  Discovery’s response to the referral – 15 July 2022

¹ Under section 8(1B) of the Broadcasting Act 1989, the Authority is only able to consider complaints under the standard(s) raised in the original complaint to the broadcaster (although in limited circumstances, the Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording, and where it is reasonably necessary in order to properly consider the complaint: Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]).
² Standard 6 of the Free-to-Air Television Code of Broadcasting Practice
³ Guideline 6a
⁴ Guideline 6b
⁵ Standard 1 of the Free-to-Air Television Code of Broadcasting Practice
⁶ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 35
⁷ Standard 6 of the Free-to-Air Television Code of Broadcasting Practice
⁸ Du Fall and The Radio Network Ltd, Decision No. 2014-055 at [12]
⁹ Emma Hatton “Govt needs law banning fat discrimination - expert” RNZ (online ed, 13 October 2018) see ‘University of Otago healthcare senior lecturer Lesley Gray said it was illegal to discriminate against people on a range of issues but not their weight’; See also “A Weighty Issue” (11 May 2016) BuckettLaw <buckettlaw.co.nz>
¹⁰ Guideline 6b
¹¹ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16; see also Thomas and Radio New Zealand Ltd, Decision No. 2022-063 at [8] and Woolrych & Glennie and NZME Radio Ltd, Decision No. 2019-100 at [18]
¹² Guideline 6c
¹³ Standard 1 of the Free-to-Air Television Code of Broadcasting Practice
¹⁴ Guideline 1a
¹⁵ See full comments above at paragraph [12]