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Told you so

By Steven | October 28, 2011

High Court agrees with me

You might remember that I argued (here and here) that the Broadcasting Standards Authority’s decision to uphold complaints against TVNZ’s documentary on the Aramoana massacre on grounds of taste and decency and children’s interests, was wrong.

The High Court has agreed with me. It has upheld TVNZ’s appeal. (I should disclose here that I did a bit of research work for TVNZ on this appeal, though it was Julian Miles QC who argued the case).

The programme

TVNZ had interviewed one of the police officers who was there, 20 years ago, when David Gray went on a shooting spree, killing 13 members of the public and a police sergeant. Officer Tim Ashton recalled that he had yelled out to Gray, who was raining shots through the window of the house he was bunkered down in, “You’re fucking good with women and kids. Come out here and have a go at us”.

Gray emerged with a concealed gun; when he revealed it there was a shoot-out and he was shot. Ashton tells us:

He screamed when he was on the ground: kill me, fucking kill me! He repeated that quite a few times. I did think for a second of shooting him. I pointed the firearm at him directly as he was on the ground. For a brief second it crossed my mind because of the horrendous things he’d done, but I’d like to think I didn’t shoot him for two reasons: one, our training and professionalism and another one – just the code of human decency that we not lower ourselves to the standard of a murderer.

The BSA decision

A majority of the BSA held that the use of the words “fucking”, twice, at 7:30 pm on Sunday, breached standards of good taste and decency and children’s interests, since children may have been watching.  They pointed to research showing that 71% of people disapproved of the use of  this word in interviews, and an earlier decision in which they upheld a complaint about a man shown swearing on a documentary. They accepted that the programme was important, but felt that the standard was too, and it would have been easy to bleep the words or broadcast the programme later.

The BSA minority’s dissent

The BSA’s chair, Peter Radich, dissented, saying the word was “an expressive and natural use of language in an extreme and dire situation”; Ashton was “considered and sober” during the interview; bleeping the words would have demeaned him; the broadcaster provided two clear warnings about the content; and the use of the words was not disturbing or upsetting but powerful.

The judge’s decision

Essentially, the judge agreed with Peter Radich. When you look properly at the context of the programme, it was simply wrong to call this a breach of standards.

In an appeal like this, the broadcaster has a fairly stiff task. It has to show that the BSA acted on a wrong principle, took into account irrelevant considerations or failed to consider relevant ones, or was “plainly wrong”.

Justice Simon France accepted that the majority decision traversed most of the relevant contextual factors, but – interestingly – he said:

The real debate is whether, having been noted, [the factors] were taken into account in reaching the conclusion.

This suggests that it’s not enough for the BSA to set out the arguments or list the considerations – it must actively grapple with the relevant factors in its reasoning process.

The relevance of earlier decisions

France J accepted that the BSA need not refer to past decisions, or even act consistently with them, though he said overlooking a very similar case that was decided differently may support a finding that the decision was “plainly wrong”. (Here, he referred to four BSA decisions, some of which I mentioned in earlier posts, that allowed the f-word to be used. It’s noteworthy here that all four decisions are more than 12 years old. Were BSA members a bit more liberal about swear-words in the 1990s?)

The majority’s failure to properly consider context

He said the upshot of the majority decision was that “fuck” could never be used in early evening. He essentially found that they had fettered themselves by not considering whether an exception could be made, because if ever an exception should be made, it should be made here. He emphasised that it’s still not open season on “fucking” (actually, that’s not quite the way he put it). The general rule is still that this sort of language will be unacceptable when children might be watching.

France J felt that the majority didn’t properly consider the context of the use of the words: the importance of the historical narrative, the lack of gratuitousness, the difference between this programme and a typical interview.

The majority judgment does not discuss the minority reasoning, and thereby fails to explain why the context of the show, and the various features that have been discussed, do not properly make it an exception to the general rule.

The NZ Bill of Rights Act

Perhaps most important – at least for Bill of Rights trainspotters like me – is this paragraph, late in the judgment:

In terms of the New Zealand Bill of Rights Act 1990, I consider that requiring the deletion of this word from the programme is an unjustified limit. Whilst the children’s interests standard was rightly accorded high value, so too was the programme. Within that programme the word occurred as part of an accurate narration of past events, it was used in context, and had no stand alone emphasis. The slot was within the period that might mean some children were watching or present, but the programme was not itself likely to be of interest to children. The words occurred halfway through it and were preceded by a general language warning that would have alerted parents. Balancing these factors, and the general context earlier discussed, in my view a prohibition is not a reasonable limit.

What is significant about this is that it seems to be an independent ground for upholding the appeal. The decision is plainly wrong because the limitation imposed was not a reasonable limit, demonstrably justified in a free and democratic society, under s 5 of the Bill of Rights Act. I think we must read this as saying that this question of reasonabless/proportionality is a question of law, and one that the BSA can get wrong.

Simon France J is not just saying that proportionality requires that the BSA follow a particular methodology. He says the decision was not substantively proportionate. The decision to uphold the complaint wasn’t a justified limit on TVNZ’s speech.

He doesn’t tell us much about how we work out what’s proportionate and what’s not though. Looking at the things he considers, it’s fair to say that:

– an inquiry into the value of the speech is required;

– we should also look to the value of the standard: and here it seems implicit in his reasoning that we need to look at the value of the standard in the particular circumstances: how much was the objective of the standard threatened in this case? Not much, he concludes. It was part of an narration of past events, used in context, not unduly emphasised, in a programme unlikely to interest children, and preceded by a warning. He’s saying: whatever harms the use of the word “fucking” does to the vulnerabilities of children or societal norms of decency, those harms are not very great in this case;

the two sides need to be balanced. Here, the judge evidently thought it was a no-brainer.

For my part, I think this is pretty significant. It’s one thing (albeit rare) for a judge to overturn an administrative decision as “plainly wrong” or for failure to properly consider relevant considerations (here, context). That’s standard administrative law. It’s another to say that a decision breached a broadcaster’s speech rights under the Bill of Rights and overturn it for that reason. Here, both are in play, and they overlap. But I think this case shows that the Bill of Rights is starting to earn its stripes.

Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | 8 Comments »

8 Responses to “Told you so”

  1. Don Polly Says:
    October 29th, 2011 at 12:29 pm

    I think more than context, a key point here was consideration of the actual or even potential harm done.
    If courts can’t regularly adjust administrative thinking, who can?
    Thanks Steven.

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