Craig and 4 Others and Television New Zealand Ltd - 2013-034

In two items broadcast a week apart on Seven Sharp, the presenters made comments about the leader of the Conservative Party, Colin Craig, relating to his opposition to the Marriage (Definition) Amendment Bill. The Authority did not uphold the complaints relating to the first broadcast, as it was balanced and was not unfair to Colin Craig. However, the second broadcast, which was a satirical piece, went too far and amounted to a personal attack on Colin Craig which was unfair. The Authority ordered the broadcast of a statement including an apology to Colin Craig, and $1,500 costs to the Crown.

Upheld: Fairness

Not Upheld: Good Taste and Decency, Law and Order, Privacy, Controversial Issues, Accuracy, Discrimination and Denigration, Responsible Programming, Violence

Orders: Broadcast statement, costs to Crown $1,500

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Craig and 4 Others and Television New Zealand Ltd - 2013-034

Members

• Peter Radich (Chair)

• Mary Anne Shanahan

• Leigh Pearson

• Te Raumawhitu Kupenga

Complainants

• Ross Craig of Auckland

• Tom Frewen of Horowhenua

• Derek Parrott of Mangawhai

• Dennis Walker of Whangarei

• Andrew Wilson of Auckland

Standards

• (1) Free-to-air TV Code: Good Taste and Decency

• (4) Free-to-air TV Code: Controversial Issues - Viewpoints

• (6) Free-to-air TV Code: Fairness

• (7) Free-to-air TV Code: Discrimination and Denigration

Standards Breached

• (6) Free-to-air TV Code: Fairness

Dated

10th December 2013

Number

2013-034

Programme

Seven Sharp

Channel/Station

TV One

Broadcaster

Television New Zealand Ltd

Where fields have dotted lines beneath them, you can call up other decisions with the same information.

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Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989

Seven Sharp – presenters made comments about leader of the Conservative Party Colin Craig – allegedly in breach of good taste and decency, law and order, privacy, controversial issues, fairness, accuracy, discrimination and denigration, responsible programming, and violence standards

Findings

Standard 6 (fairness) – comments in 17 April item aimed at Colin Craig in his professional capacity and therefore not unfair – comments in 24 April item were insulting and personally abusive to Colin Craig and therefore unfair to him – upheld in part

Standard 1 (good taste and decency) – alleged coarse language did not threaten current norms of good taste and decency – abusive nature of comments more appropriately addressed as a matter of fairness to Colin Craig, rather than harm to general audience – not upheld

Standard 7 (discrimination and denigration) – items did not encourage discrimination or denigration against people who opposed same-sex marriage as a section of the community – not upheld

Standard 4 (controversial issues) – 17 April item discussed a controversial issue of public importance but not unbalanced – 24 April item did not contain a discussion of a controversial issue of public importance – not upheld

Orders

Section 13(1)(a) – broadcast statement

Section 16(4) – costs to the Crown $1,500

This headnote does not form part of the decision.

Introduction

[1] Items on Seven Sharp contained comments about the leader of the Conservative Party, Colin Craig, relating to his opposition to the Marriage (Definition) Amendment Bill (the Bill). The comments were made by the programme presenters in items broadcast on 17 and 24 April 2013 on TV One.

[2] Ross Craig, Tom Frewen, Derek Parrott, Dennis Walker, and Andrew Wilson made formal complaints to Television New Zealand Ltd, the broadcaster. The complainants raised many standards in regards to one or both of the broadcasts. They argued that the presenters’ comments were unfair to Colin Craig, offensive, unbalanced and encouraged discrimination and denigration against people who opposed same-sex marriage.

[3] The focus of our determination is whether the items breached the fairness, good taste and decency, discrimination and denigration, and controversial issues standards, as set out in the Free-to-Air Television Code of Broadcasting Practice. These standards are most relevant to the complainants’ concerns. The other standards raised by the complainants are addressed briefly at paragraph [45] below.

[4] The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.

Nature of the items and freedom of expression

[5] Seven Sharp is a relatively new programme broadcast in a traditional current affairs programming slot. The broadcaster defines the programme as news and current affairs, which means, in terms of our standards, that it is an unclassified programme. The programme combines current affairs and entertainment and departs from the orthodox treatment of news and currents affairs by applying comedy and entertainment techniques. This sees serious current affairs topics, including politics, reported in a sometimes un-serious manner.

[6] The item broadcast on 17 April reported on the then upcoming vote in Parliament on the same-sex marriage Bill. The 15-minute item consisted mostly of interviews with, and discussion about, people in support of “marriage equality”. The 24 April item was a short skit lampooning Colin Craig, and was introduced by reference to his threat of defamation against a satirical website which posted fictional quotes from him regarding the same-sex marriage issue.

[7] TVNZ argued that the items carried high value because the presenters were expressing their personal perspectives, or offering satirical commentary, on a political topic.

[8] We accept that the 17 April item discussed same-sex marriage which was a topical and political issue. The item carried public interest and value in terms of freedom of expression which is important in our open democratic society. By contrast, the 24 April item, although introduced by reference to the satirical website and so related indirectly to the same-sex marriage issue, focused exclusively on Colin Craig and did not contain any discussion of the Bill or Colin Craig’s views on gay marriage.

[9] Any free speech value assigned to either programme must be weighed against the level of harm likely to result from allowing the unfettered dissemination of the speech.1 Here, the alleged harm, in terms of the underlying objectives of the relevant broadcasting standards, was said to derive from the alleged detrimental impact of the broadcasts on Colin Craig’s reputation and dignity. In addition, the complainants argued that the items reflected badly on people who opposed same-sex marriage, and that the audience were misinformed by the omission of alternative viewpoints.

Was Colin Craig treated unfairly?

[10] The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The objective of this standard is to ensure that programme participants and people referred to in broadcasts are dealt with justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.2

[11] The complainants argued that the Seven Sharp broadcasts contained comments that were personally abusive towards Colin Craig.

[12] TVNZ relied heavily on the right to freedom of expression, and the higher threshold for finding unfairness in relation to public figures. It said there was an expectation that prominent figures in society may be satirised, and it considered that Colin Craig, as a politician, would expect his comments on the Bill, and his threat of defamation against a satirical blog, to attract a strong response.

17 April item

[13] The 17 April item contained a discussion of the same-sex marriage legislation and the upcoming vote in Parliament. Brief mention was made to the Bill’s opposition, as the presenter, Greg Boyed, stated:

…Colin Craig is already saying he plans to repeal this. What I want to do and what I want to say to Colin Craig and all his mates – because it’ll be about four months before the marriage thing actually happens and people can actually get married – so a year from today when the world hasn’t come to an end and there isn’t a plague of locusts, and the North and South Islands aren’t sinking, I want them to come out and say, “you know what, we’re a bunch of ill-informed bum barnacles, we don’t know what we’re talking about, and we were wrong”.

[14] The comments related to Colin Craig’s political stance on a matter of high public interest expressed by him in a public forum, namely, his opposition to the same-sex marriage legislation. The Authority has accepted that the threshold for finding a breach of the fairness standard in relation to politicians or public figures is higher than for a lay person or someone unfamiliar with dealing with the media, saying:3

[T]he fairness standard does not prevent criticism of public figures. Indeed, it is an essential element of free speech that even the most trenchant criticism of public figures be allowed… The question for the Authority is whether that criticism overstepped the boundaries of fairness, that is, whether it strayed into abusively personal territory.

[15] The presenter offered satirical comment aimed at Colin Craig in his professional capacity as a politician and as leader of the Conservative Party. The comments were delivered in a humorous manner while at the same time critical of Mr Craig and his position in the wider debate around same-sex marriage. The Authority and the High Court have recognised the value of satire as a form of critique, especially when applied to public figures.4 The Code also recognises that humour and satire are important forms of speech on which society places value.5

[16] While we acknowledge that the humour and satire deployed in this instance may not have been to everyone’s taste, we are satisfied the 17 April item was not unfair to Colin Craig, and we decline to uphold this part of the complaints under Standard 6.

24 April item

[17] The item broadcast on 24 April related broadly to Colin Craig’s views on same-sex marriage, but did not contain any serious or genuine discussion of that issue. The item was introduced by the presenter Alison Mau, as follows:

Conservative leader Colin Craig’s decided not to take defamation action against a satirical website which printed a false quote from him last week. The legal action was problematic, of course, because most of us would like to have a go at Colin Craig, wouldn’t we? [laughter from presenters] So Jesse’s kindly put together some tips to help us out.

[18] Jesse Mulligan, one of the presenters and a well-known comedian, stood in front of a large screen displaying the words “Jesse’s Guide to Making Fun of Colin Craig”. He said:

Yes, the legal threats may be over, but here at Seven Sharp we don’t want anyone else to get in trouble, so I’ve put together this handy guide to making fun of Colin Craig.

[19] The so-called “tips” referenced the well-known defences to defamation – truth and opinion – which appeared onscreen, as Mr Mulligan continued:

Firstly, the best defence is truth. If I tell you that Colin Craig said “being gay is a choice” or that he thinks “being abused as a child can turn you gay”, well I can’t get in trouble because he did.

I am also safe from the lawyers if I just state my opinion. “I think Colin Craig is a nutcase”; “I feel Colin Craig is a doofus”; “I believe Colin Craig is a smarmy rich prick”. As long as that is my opinion – and I can tell you it bloody well is – I should be safe from the lawyers.

Now remember, people, defamation cases can be expensive – if you’re not sure, just don’t say it. So let me be very clear, Colin Craig does not wear women’s clothing; Colin Craig does not drown puppies for fun; Colin Craig is totally not a gay man. It seems to me he just really loves to talk about them.

[20] The camera cut back to Ms Mau and Mr Boyed who were laughing. Mr Boyed said, “This close…” while making a hand gesture, indicating his recognition the comments were at the borderline of acceptability. Mr Boyed remarked, “I saw [Colin Craig] tonight on the news and he said, ‘I’ve got a great sense of humour’. Invariably, someone who says ‘I’ve got a great sense of humour’, hasn’t.” Ms Mau said, “If you’ve got a great sense of humour, you don’t have to say that.” Mr Mulligan could be heard laughing in the background.

[21] We accept that some of the comments in this broadcast related indirectly to Colin Craig’s standpoint on the gay marriage issue and to his threat of defamation proceedings, and amounted to legitimate satire. The comments around the defence of “truth” fell into this category.

[22] However, Mr Mulligan’s remarks, “I think Colin Craig is a nutcase; I feel Colin Craig is a doofus; I believe Colin Craig is a smarmy rich prick”, had no bearing on Colin Craig’s political views. These comments offered no constructive comment on the underlying issues, but were simply personal abuse masquerading as satire. The comments, combined with Ms Mau’s introductory statement that “most of us would like to have a go at Colin Craig”, the concluding remarks from Ms Mau and Mr Boyed about Colin Craig lacking a sense of humour, and the laughter from all three presenters, turned the item into a sustained personal attack against Colin Craig that was childish and unfair, in circumstances where he had no chance to defend himself.

[23] In deciding whether to uphold the complaint, we must consider the right to freedom of expression, and balance this against the harm alleged to have been caused by the broadcast. As noted above, the 24 April item related broadly to a political topic, but the comments about Colin Craig’s personal character and attributes had no bearing on the same-sex marriage issue. In our view, upholding the complaint that Colin Craig was treated unfairly in this item would be a reasonable and proportionate limit on the right to freedom of expression. Some of the comments were acceptable and we have clearly indicated where the broadcast crossed the line and became personally abusive. The concluding comments from Mr Boyed indicated that the programme itself recognised the comments were on the borderline of acceptability.

[24] Accordingly, we uphold the complaints that the item broadcast on 24 April was unfair to Colin Craig in breach of Standard 6.

Did the comments threaten current norms of good taste and decency?

[25] The good taste and decency standard (Standard 1) is primarily aimed at broadcasts that contain sexual material, nudity, coarse language or violence.6 The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.7

[26] Ross Craig, Mr Walker and Mr Wilson argued that the comments in the 24 April item breached the good taste and decency standard, and Ross Craig argued that the comments in the 17 April item also breached this standard. The complainants were concerned about the broadcast of coarse language during children’s viewing times, as well as the abusive nature of the comments.

[27] TVNZ said that Seven Sharp took a “conversational approach” which involved the presenters giving their personal views on current affairs issues. It said a broadcast will not necessarily breach broadcasting standards because it is considered rude, impolite, or offensive to some viewers.

[28] In considering whether the abusive nature of the comments breached Standard 1, we highlight the different objectives of the fairness and good taste and decency standards (see paragraphs [10] and [25]). Fairness is focused on protecting individual rights. The good taste and decency standard is concerned with the general audience. We acknowledge that some viewers, including the complainants, would have found the nature of the comments offensive. However, applying the underlying objectives of the standards, we think the main issue was the impact of the broadcast on Colin Craig and the harm caused to him, rather than any harm caused to viewers in general. We have found that the 24 April item contained comments that were personally abusive and unfair to Colin Craig, and we think our finding under fairness adequately addresses the complainants’ concerns in this respect.

[29] With regard to the alleged coarse language in the items, and specifically “bum barnacles”, “nutcase”, “doofus”, and “smarmy rich prick”, we think this was at the mild end of the language spectrum,8 and we do not consider that it threatened current norms of good taste and decency. While the programme was broadcast at 7pm during children’s viewing times, there is an expectation that parents will exercise discretion when viewing current affairs programmes with their children.

[30] Accordingly, we decline to uphold the Standard 1 complaints.

Did the items encourage discrimination or denigration against any section of the community?

[31] The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, a section of the community.

[32] The term “denigration” has consistently been defined by the Authority as blackening the reputation of a class of people.9 “Discrimination” has been consistently defined as encouraging the different treatment of the members of a particular group, to their detriment.10 It is also well-established that in light of the requirements of the New Zealand Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard.11

[33] The complainants’ concerns under this standard were that the broadcasts encouraged discrimination and denigration against people who opposed same-sex marriage, on account of a legitimate expression of religion, culture or political belief.

[34] TVNZ argued that the items did not contain the necessary level of invective to find a breach of the standard. It said the presenters were expressing their personal perspectives, or offering satirical comment, on issues they felt strongly about. In regards to the 24 April item, it noted that Mr Mulligan was a comedian who routinely presented comedic parodies and satire on Seven Sharp, and it considered viewers would have understood the item was not intended to be taken seriously.

[35] Mr Boyed’s comments in the 17 April item were clearly his opinion. Guideline 7a to the standard states that it is not intended to prevent the expression of genuinely held opinion in news, current affairs and other factual programmes. Mr Mulligan’s comments in the 24 April item were squarely aimed at Colin Craig as an individual, and his threat of defamation proceedings. While some of the comments were loosely related to Mr Craig’s views on same-sex marriage, the segment specifically referred to comments made publicly by him, so we do not think they could be seen as extending to all people who opposed same-sex marriage.

[36] We are satisfied that the items did not encourage discrimination or denigration against people who opposed same-sex marriage as a section of the community, and we therefore decline to uphold the Standard 7 complaints.

Did the items discuss a controversial issue of public importance requiring the presentation of alternative viewpoints?

[37] The balance standard (Standard 4) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The balance standard exists to ensure that competing arguments are presented, where necessary, to enable a viewer to arrive at an informed and reasoned opinion.12

[38] A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue “of public importance”, it must be “controversial”, and it must be “discussed”.13

[39] The complainants argued that same-sex marriage was a controversial issue of public importance and that the broadcaster failed to present alternative viewpoints on this issue.

[40] TVNZ responded that the presenters’ commentary in the 17 April item was clearly from a particular perspective, in keeping with the “conversational approach” of the programme, which it said was permitted under Standard 4. The item broadcast on 24 April consisted of a “light-hearted, comedic review of how not to get sued for defamation”, and it did not purport to be serious or balanced discussion of the Bill, it said. In any event, TVNZ asserted that the issue was widely discussed in all media (including by TVNZ itself) and that significant viewpoints were presented in the period of current interest.

[41] We accept that legalising same-sex marriage was a controversial issue of public importance at the time of the broadcasts. The 17 April item contained a discussion of the same-sex marriage legislation, and in our view sufficiently acknowledged the existence of alternative viewpoints through the following comments:

• “There are about a third of Parliament who are still going to vote against it, are expected to vote against it. There has been some intense lobbying in the lead up to it even at the last minute…” (reporter)

• “As always with our laws around these type of things, plenty of people have plenty to say. Plenty of people are worried about the impact it will have on society…” (presenter).

[42] While we agree that the item took a position in favour of same-sex marriage, we are satisfied that the potential harm was minimal, and the level of balance injected in the item was sufficient, given the prominence of the issue throughout the media, meaning viewers could reasonably be expected to be aware of views expressed in other coverage within the period of current interest.

[43] The 24 April item was a short skit lampooning Colin Craig, and did not contain a discussion of same-sex marriage, so the requirement to provide balance did not apply.

[44] Accordingly, we decline to uphold the complaints under Standard 4.

Did the items breach the other standards raised in the complaints?

[45] The complainants also raised standards relating to privacy, law and order, accuracy, responsible programming, and violence. In summary, these standards were not breached because:

• No private facts were disclosed about Colin Craig in breach of his privacy (Standard 3).

• The 24 April item did not contain anything that encouraged viewers to break the law, and did not otherwise promote, glamorise or condone criminal activity (Standard 2).

• The comments subject to complaint amounted to the presenters’ commentary and opinion, not “material points of fact”, so were exempt from standards of accuracy under guideline 5a (Standard 5).

• The responsible programming standard is primarily aimed at ensuring that programmes are correctly classified and screened in appropriate timeslots. Seven Sharp is an unclassified current affairs programme targeted at adults, and did not contain anything that would alarm or deceive viewers, so the standard is not relevant to these complaints (Standard 8).

• The items did not contain any violence (Standard 10).

[46] Accordingly, we decline to uphold the complaints under these standards.

For the above reasons the Authority upholds the complaints that the broadcast by Television New Zealand Ltd of an item on Seven Sharp on 24 April 2013 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

The Authority declines to uphold the complaints about the item on Seven Sharp broadcast on 17 April 2013.

[47] Having upheld part of the complaints, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on orders

[48] Mr Craig, Mr Parrott and Mr Wilson submitted that TVNZ should be ordered to broadcast a statement during Seven Sharp, including an apology to Colin Craig. Mr Craig said this should be “formal and delivered in a serious manner (not handled flippantly or with humour)”. Mr Craig and Mr Wilson also considered that an order for costs to the Crown was appropriate, and Mr Wilson asked for the maximum penalty of $5,000. Mr Craig said the broadcaster should be made to give Colin Craig six minutes of airtime to respond to the abusive comments and defend himself.

[49] TVNZ submitted that the Authority should take into account the following when considering orders:

• only one aspect of the fairness complaint in regard to one of the broadcasts complained about was upheld

• the presenter who made the offending comments was a comedian and viewers would understand his role in the programme and that he was expressing his personal feelings and thoughts about Colin Craig

• Seven Sharp is a new programme with a different approach to current affairs which involves satire and humour and viewers would “expect and understand” this of the programme

• the type of material under consideration required a fine balance between freedom of expression and the right to satirise on the one hand, and the rights of identifiable individuals to fair treatment on the other hand

• the comments were intended to be humorous and satirical, not abusive

• it would be useful to have guidance in regard to this type of material for future content in this novel style of current affairs programme

• the comments were “tongue-in-cheek” and were not framed to “strike at the heart of Mr Craig’s integrity”.

[50] In light of these factors, TVNZ concluded that publication of the decision was sufficient and that no order was necessary.

Authority’s decision on orders

[51] Having considered the parties’ submissions on orders, we consider that ordering a broadcast statement summarising the upheld aspects of our decision and including an apology to Colin Craig for the unfair treatment of him, is appropriate. The statement should be broadcast during Seven Sharp in accordance with usual practice as outlined in the Orders below. Taking into account the nature of the programme and the concerns expressed by the complainant Mr Craig, the statement should be read by a presenter other than the hosts of Seven Sharp, and should also appear visually onscreen.

[52] Costs to the Crown are usually ordered to mark a significant departure from broadcasting standards. We have found that the hosts made comments about, and engaged in a sustained personal attack against, Colin Craig, in circumstances where he had no chance to defend himself. We reject TVNZ’s contention the comments were intended to be humorous and satirical, and affirm our finding that they were personal abuse masquerading as satire. We have taken into account previous decisions by the Authority, and in all the circumstances we consider that costs in the amount of $1,500 would be appropriate.

Orders

The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:

1. Pursuant to section 13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement. That statement shall:

• be broadcast within one month of the date of this decision

• be broadcast at a time and on a date to be approved by the Authority

• contain a comprehensive summary of the upheld aspects of the Authority’s decision

• contain an apology to Colin Craig for the unfair treatment of him

• be read by a presenter other than the hosts of Seven Sharp

• be presented verbally as well as visually onscreen.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to section 16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $1,500 within one month of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich

Chair

10 December 2013

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