BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

Yandall & Thomas and Discovery NZ Ltd- 2022-069 (31 August 2022)

Members
  • Susie Staley MNZM (Chair)
  • John Gillespie
  • Tupe Solomon-Tanoa’i
  • Aroha Beck
Dated
Complainant
  • Bronson Yandall & Simon Thomas
Number
2022-069
Programme
The Project
Broadcaster
Discovery NZ Ltd
Channel/Station
Three

Summary  

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

The Authority has not upheld a complaint under several standards in relation to a segment on The Project. In the broadcast, comedian Justine Smith joked about throwing a half-eaten apple at anti-abortion protesters. The complainants alleged the segment was offensive, promoted violence and criminal activity, and discriminated against anti-abortion protesters. The Authority found that while the statements may have been offensive to some – in the context of the broadcast as a whole, taking into account audience expectations of the show, and the lack of any specific call to act – the alleged harm caused by the broadcast did not reach the thresholds required to restrict the broadcaster’s right to freedom of expression under any of the nominated standards.

Not Upheld: Good Taste and Decency, Children’s Interests, Violence, Law and Order, and Discrimination and Denigration


The broadcast

[1]  On 31 May 2022, the presenters of The Project spent several minutes interviewing an artist who, for more than a decade, has been counter-protesting against anti-abortion protesters outside the Dunedin Hospital abortion clinic. After the interview, guest panellist and comedian Justine Smith stated:

Justine Smith:         I love this, I mean, you should be allowed to protest, but you should also get what’s coming to you. I once saw a group of anti-abortion protesters in Auckland, and I had just been shopping and had an apple with a bite out of it, and so I biffed it really hard at them. And turns out, I’m quite a good shot.

Kanoa Lloyd:           Aahhh, and it obviously hit the ground very close to them?

Paddy Gower:         Yeah hypothetically

Justine Smith:         [mouths] ‘right in the neck’ [while pointing at her neck].

The complaint

[2]  Bronson Yandall and Simon Thomas complained that the broadcast breached several standards of the Free-to-Air Television Code of Broadcasting Practice. Their submissions have been summarised as follows:

Good taste and decency / Children’s interests

  • Children would have been watching the programme, and it did not set a good example for them.
  • Smith’s admission of an act of assault on peaceful pro-life protesters in Auckland was shocking, and described violent behaviour which should not be condoned.
  • Whether she was being comedic or not, attacking protesters is not a legitimate form of ‘counter-protest’.
  • Smith’s actions undermined the right to protest, which is a protected right under the New Zealand Bill of Rights and the Human Rights Act.
  • The numerous complaints that Discovery received about this segment indicate the statement by Smith did exceed regular viewers’ expectations of the show.

Violence / Law and order

  • Smith’s description of an assault on air, and declaration the protesters should “get what is coming to them” promoted violence and illegal activity.
  • Smith openly admitted to, and celebrated, violating the Crimes Act.

Discrimination and denigration

  • Smith discriminated against the anti-abortion protesters on the basis of political belief.

The broadcaster’s response

[3]  Discovery did not uphold the complaint for the following reasons:

Good taste and decency / Children’s interests

  • The Project is a news and current affairs programme and has an adult target audience. These programmes are unlikely to be watched by unsupervised young children, and the broadcast did not contain any material likely to cause harm to younger members of the audience viewing under the guidance of a parent or adult.
  • The broadcast did not contain any sexual material, depictions of graphic violence or coarse language, did not exceed regular viewers' programme expectations, and would not have caused widespread offence amongst regular viewers of The Project.
  • The broadcast focussed on counter-protesting, profiling Sam Sharp for his campaign over the last ten years. The presenter offered the audience her own example of counter-protesting, by sharing a personal anecdote about a subject she felt strongly about.
  • A feature of the programme is the commentary and banter amongst the presenters. Smith is a well-known comedian and routinely appears on the programme. ‘The tone of her comments [was] light-hearted and intended to be comedic, particularly when she demonstrated the apple hitting the protester’s neck – she was over-emphasising the success of her throw in a bid to be comedic.’

Violence / Law and order

  • The presenter’s story – which included a verbal description of throwing a half-eaten apple – did not amount to unduly disturbing violent content or content likely to incite or encourage violence or brutality for the purposes of this standard.
  • The tone of the presenter’s comments was intended to be humorous, and it is doubtful a reasonable viewer would interpret the broadcast as seriously encouraging the audience to break the law or promote any criminal or serious antisocial activity, which the law and order standard is designed to protect against.
  • The other presenters did admonish the suggestion of throwing a half-eaten apple at protesters, by suggesting that the apple had surely missed and commenting that the suggestion of throwing an apple was ‘hypothetical.’

Discrimination and denigration

  • The presenter’s story did not reach the threshold to be considered hate speech or a sustained attack on any sections of the community and the discussion was typical of the free and frank expression of views The Project routinely features.

The standards

[4]  The purpose of the good taste and decency standard1 is to protect audiences from content likely to cause widespread undue offence or distress, or undermine widely shared community standards.2

[5]  The children’s interests standard3 requires broadcasters to ensure children are protected from broadcasts which might adversely affect them. Material likely to be considered under this standard includes violent content or themes, offensive language, social or domestic friction and dangerous, antisocial or illegal behaviour where such material is outside the expectations of the programme’s classification.4

[6]  The purpose of the violence standard5 is to protect audiences from unduly disturbing violent content.6 It states broadcasters should exercise care and discretion when referencing violence.

[7]  The purpose of the law and order standard7 is to prevent broadcasts encouraging viewers to break the law, or otherwise promoting, glamorising or condoning criminal or serious antisocial activity.8 The standard states broadcasters should observe standards consistent with the maintenance of law and order.

[8]  The discrimination and denigration standard9 states broadcasters should not encourage discrimination against, or denigration of, any recognised ‘section of the community’. It aims to protect sections of the community from verbal and other attacks, and to foster a community commitment to equality.10

Context

[9]  Context is an important consideration under each of the standards raised.11 Some relevant contextual factors include:

  • The Project is an unclassified news and current affairs programme (it is not required to carry a rating).
  • The Project is aimed at an adult audience and provides alternative commentary on news and current affairs.
  • There is an established audience expectation of the style of presentation and humour offered on The Project, notwithstanding that it airs in a traditional current affairs timeslot. It includes a mixture of news and entertainment, and frequent comedy and banter among the hosts and guest panellists (many of whom are well-known comedians, including Justine Smith).12
  • The statement was in line with Smith’s style of comedy. She is well known as a brash, aggressive, and feminist comic. Descriptions of Smith include: “she does not suffer fools gladly”, “if you were to try and define Justine as a lover or a fighter, you’d have to say both”13 and “Smith says she hopes audiences have been able to see past the bolshiness that’s inherent to her act.”14
  • The comments about throwing the apple were very brief in the context of a 4 minute item as a whole.
  • Smith’s comments were made after a lengthy interview, in which the interviewee described his method of counter-protesting (standing next to the pro-life protesters, with a sign that said ‘dicks’ and an arrow pointing at the pro-life protesters). This set the tone of the broadcast.
  • Smith did not claim she was speaking on behalf of any group or collective. She also did not call for anyone else to act in any way.
  • The comments were punctuated with laughter, and Smith was clearly going for theatrical humour when she paused before saying “and it turns out, I’m quite a good shot”, and her exaggerated mouthing of ‘in the neck’ while pointing to her neck.
  • The other presenters made comments such as “it obviously hit the ground” and “hypothetically” making it clear they did not endorse Smith’s comments.

[10]  We also consider the wider context at the time of the broadcast, which, in this case, demonstrates the public interest in the story:

  • New Zealand had recently passed a bill banning abortion protesters from protesting within 150 metres of an abortion clinic.15
  • The US Supreme Court had recently had a leak of a draft judgement which indicated that access to abortions could potentially be severely limited in the United States, raising conversation in New Zealand about access to abortion here. This decision has subsequently been issued and the discussion about access to abortion is ongoing.16

Freedom of expression

[11]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the value of the programme, and the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast, whether to individuals or to audiences generally. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.17

[12]  The high importance placed on freedom of expression is reflected in our constitutional law by the New Zealand Bill of Rights Act 1990, at section 14:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form. [Our emphasis]

[13]  While the right to freedom of expression is valued and important, it is not an absolute right and may be restricted, where such a restriction is reasonable and justified in a fair and democratic society. The right to freedom of expression in New Zealand therefore allows broadcasters to raise ideas in a way that might be satirical, provocative or in poor taste, provided it does not cause undue harm.

[14]  For reasons further described below, we have found Smith’s statements – while likely to be viewed as provocative or in bad taste by some viewers – did not reach a level of actual or potential harm sufficient to justify restricting the broadcaster’s freedom of expression under the nominated standards in this case.

Our analysis

[15]  In determining this complaint, we have carefully considered the issues raised by the complainants, and the response from the broadcaster, and we have viewed the segment of The Project subject to complaint. Importantly, we have considered the context of the broadcast and of the programme itself, as well as taking guidance from previous decisions on similar complaints.

Good taste and decency

[16]  Attitudes towards taste and decency differ widely and continue to evolve in a diverse society such as ours. Caution must therefore be exercised when considering matters of taste. The Codebook states the feelings of the particularly sensitive cannot be allowed to dictate what can be broadcast.18 However, there are limits and the broad limit is a broadcast must not seriously violate community norms of taste and decency.19

[17]  The key issue we considered under this standard is whether Smith’s comments undermined widespread community standards or were likely to cause widespread undue offence or distress. In the context described above, we found they did not.

[18]  This finding is influenced in particular by our view that viewers, in the context described in paragraph [9] are likely to have understood the comments as humorous (rather than as a call to act). The segment had clearly meant to look at a serious issue from a comical perspective. The three minute interview about counter-protesting with the word ‘dicks’ had already set the tone of the broadcast prior to Smith’s statements. Her anecdote about throwing a half-eaten apple was offered as a humorous addition to the segment. Smith was theatrical with her story for comedic effect, and audiences would have expected jokes with this sort of tone from Smith, given her comedic style.

[19]  We acknowledge there are strong and differing views on the topic of abortion access, and anti-abortion protesters. There is value in allowing debate and people to freely express their opinions about issues such as this, and Smith’s comments could be seen as commentary on the bounds of the right to protest, particularly coming so soon after law changes in New Zealand intended to protect people accessing abortion services. In this light, the comments could be seen as ‘the sort of ranting society is willing to allow and not take seriously’.20 Protest speech, satire, and humour all have high value and are important aspects of freedom of expression.21

Children’s interests

[20]  The purpose of the children’s interests standard is to enable audiences to protect children from material that unduly disturbs them, is harmful, or is likely to impair their physical, mental or social development.22 Smith’s comments, while potentially offensive to some, were not likely to have such serious impacts.

[21]  The Authority has consistently found that children are unlikely to watch unclassified news and current affairs programmes unattended.23 There is also an expectation that parents and guardians will exercise discretion around viewing news and current affairs programmes with their children. 

[22]  Considering audience expectations of both The Project and Smith, we consider parents and caregivers had sufficient information to decide whether the coverage was suitable for children in their care.  In this case we make particular emphasis on the fact that parents and caregivers would have had three minutes of broadcast about the word ‘dicks’ and multiple visual images of the placard with the word ‘dicks’ on it, (often accompanied by an arrow in the shape of cartoon penis) prior to the comments about throwing a half-eaten apple at protesters.

[23]  Accordingly, in light of the nature of the comments and the expectation surrounding child supervision with respect to broadcasts like The Project, we conclude that any potential harm would not be sufficient to justify our intervention and do not uphold the complaint under this standard.

Violence

[24]  Violent content should be justified by context, and audiences should be adequately informed of likely content and warned if it is likely to disturb a significant number of viewers.24 Further, broadcasters should exercise caution with content likely to incite or encourage violence or brutality.25 Our inquiry here is whether the comments referred to violence, and if so, whether the comments were justified by their context or viewers were otherwise protected from their effect.

[25]  Again, in the context,26 we consider Smith’s comments were unlikely to disturb a significant number of viewers, were unlikely to incite or encourage violence or brutality and were adequately signposted by the prior storyline. In the broadcast, there was no visual depiction of violence, only a verbal description. The Authority has consistently found that violent material has more impact visually. Although the comments described an aggressive act, throwing a half-eaten apple at someone falls short of the type of ‘graphic’ content which would generally amount to ‘unduly disturbing violent content’.

Law and order

[26]  The law and order standard is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes.27 The key question is whether the broadcast would have had the effect of encouraging viewers to break the law, or otherwise promoting, glamorising or condoning criminal activity.28

[27]  In reaching our finding, we refer to our decision in Bhatnagar where we stated:29

In evaluating speech which is the subject of a complaint… we need to do more than assess the literal meaning of the words used. We need to look carefully at the context in which the words were used and then judge the likely consequences as best we can. If speech inciting violence is being seriously addressed to an audience that is likely to respond, then clearly that would amount to a breach of the standard. On the other hand, if words which on their face encourage violence but are delivered in a flippant or humorous way and would never be taken seriously, these would not amount to a breach. There is a wide area between these two points where speech will sometimes offend a standard and sometimes it will not.

[28]  While the Authority acknowledges the complainants’ allegation that Smith’s comments may appear to condone and promote violence – Smith stated that anti-abortion protesters should “get what’s coming to them” and then described a way in which this could be achieved – the Authority considered the comments’ practical effect was unlikely to genuinely incite illegal or seriously antisocial activity. This is particularly so taking into account the evident attempt at humour on Smith’s part, and the lack of a call to action.

[29]  We further consider that the harm alleged by the complainant in this case was mitigated by the wider context of the broadcast, particularly the reactions of the other presenters, which balanced her comments and signalled to viewers that throwing apples at protesters was inappropriate. We do not consider that in this case the potential harm from the broadcast as identified in the complaint was at a level which justifies regulatory intervention or limiting the fundamental right to freedom of expression.30

Discrimination and denigration

[30]  The standard applies only to recognised sections of the community’, consistent with the grounds for discrimination listed in the Human Rights Act 1993.31 Like other broad groups previously considered by the Authority, we do not consider pro-life protesters to be a ‘recognised section of the community’ to which the standard applies.32

[31]  The complainants argued that the anti-abortion protesters were discriminated against on the basis of political belief.

[32]  However, people who oppose the legalisation of abortion are opposed for a multitude of reasons, some religious, some cultural, some political, philosophical and others. Taking into account the wide range of rationales and world views behind people’s decisions with respect to the legalisation of abortion, we do not consider people who oppose the legalisation of abortion amount to a ‘recognised section of the community’ as intended by the discrimination and denigration standard.33

[33]  Accordingly we do not uphold the complaint under the discrimination and denigration standard.

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

 

Susie Staley
Chair
31 August 2022    

 

 

Appendix

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

Yandall complaint

1  Bronson Yandall’s formal complaint – 2 June 2022

2  Discovery’s response to the complaint – 28 June 2022

3  Yandall’s referral to the Authority – 29 June 2022

4  Discovery’s confirmation of no further comment – 4 July 2022

Thomas complaint

5  Simon Thomas’s formal complaint – 31 May 2022

6  Discovery’s response to the complaint – 28 June 2022

7  Thomas’s referral to the Authority – 14 July 2022

8  Discovery’s confirmation of no further comment – 15 July 2022


1 Standard 1 of the Free-to-Air Television Code of Broadcasting Practice
2 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
3 Standard 3 of the Free-to-Air Television Code of Broadcasting Practice
4 Guideline 3a
5 Standard 4, Free-To-Air Television Code of Broadcasting Practice
6 Commentary: Violence, Broadcasting Standards in New Zealand Codebook, page 14
7 Standard 5, Free-To-Air Television Code of Broadcasting Practice
8 Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
9 Standard 6 of the Free-to-Air Television Code of Broadcasting Practice
10 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
11 Guidelines 1a, 4b and 5b
12 “The Project” (accessed 3 August 2022) Wikipedia <Wikipedia.org>
13 “About” (accessed 3 August 2022) Justine Smith <justinesmith.co.nz>
14 Sam Brooks “Justine Smith’s long road to Taskmaster glory” The Spinoff (online ed, July 9 2022)
15 Thomas Coughlan “Final piece of abortion reform passes nearly four years after work began” The New Zealand Herald (online ed, 16 March 2022)
16 “‘Complacency is a greater danger than undue alarm’ – NZ abortion advocate” RNZ (online ed, 26 June 2022)
17 Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
18 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
19 As above
20 Bhatnagar and Radioworks Ltd, Decision No. 2012-045 at [22]
21 For satire and humour, see: See Millar and Discovery NZ Ltd, Decision No. 2021-064 at [12], Kean and Radio New Zealand Ltd, Decision No. 2020-097 at [9],and Taiuru and New Zealand Media and Entertainment, Decision No. 2015-045 at [7], for protest / political speech see Bhatnagar and Radioworks Ltd, Decision No. 2012-045 at [7]
22 Commentary: Children’s Interests, Broadcasting Standards in New Zealand Codebook, page 13
23 Barker and Television New Zealand Limited, Decision No. 2000-033
24 Commentary: Violence, Broadcasting Standards in New Zealand Codebook, page 14
25 Guideline 4c
26 Guideline 4b
27 Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
28 Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
29 Bhatnagar and Radioworks Ltd, Decision No. 2012-045 at [10]
30 Yukich and MediaWorks TV Ltd, Decision No 2019-080 at [10]
31 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
32 Right to Life New Zealand and Mediaworks TV Ltd, Decision No 2019-041 at [11]
33 As above