Sasha Borissenko: Cultural appropriation and racial discrimination – it’s not okay


Meri Kirihimete. What better way to celebrate Christmas than to look at some of this year’s cases of “ho ho no” – be it cultural appropriation, or racial discrimination. Identity politics and human rights are fraught areas to discuss, particularly as they also bring to light issues around representation, and virtue signalling.

And for every complaint of tone-deaf marketing and discrimination, there will be screeds of potential perpetrators who can’t handle the discomfort and who scream “political correctness-gone mad” from the rooftops.

Nevertheless, it wasn’t that long ago (maybe it was) when I was an intern pitching a story about golliwogs being sold at a major retail outlet, only to be told by my chief reporter that it “was just a toy”. And hell is just a sauna.

'Ho ho no' examples of 2020

Just this month Kiwi fashion outlet Trelise Cooper labelled its latest design a “Trail of Tiers”, which was said to be mocking the forced mass relocation and ethnic genocide of native Americans between 1830-1850. In a written statement, Dame Trelise Cooper said she was “completely unaware” of the phrase’s history, and the dress was pulled from its online store.

In 2011, the company used tape to stretch the skin around the eyes of its models for a catwalk and in 2014 its models wore a Native American headdress.

Fellow designer Annah Stretton was slammed in October for displaying a poster in the window of her Wellington store that featured the designer alongside two women of colour, wearing makeup akin to golliwog dolls, and the text “Most people will tell you what you can’t do. I am only interested in what I can do”.

Stretton issued a statement saying: “Out of context the image may be difficult for some in light of ‘Black Lives Matter’ and other ongoing positive (global and national) changes to what is acceptable and what is not, in current day.”

The poster was removed accordingly.

In June this year, an advertisement for Tasti Bars was criticised for portraying Kiwiana icons and taonga Māori in a light-hearted manner, and incorrectly implied that Captain Cook was killed and eaten by Māori. The advert showed Cook being spit-roasted over an open fire while Māori in piupiu played music.

Managing director Josette Prince pulled the advertisement and apologised for any offence caused.

That same month, Nestle announced it would re-name Chicos and Red Skins candy in a bid to ensure “friends, neighbours, and colleagues weren’t marginalised”. Tip Top said it would rename its Eskimo Pie ice cream bars because the name had “changed meaning” since the product was introduced in 1940. And Pascall’s Eskimo lollies would also follow suit.

You have to question, however, have these names changed “meaning” or simply has society started to recognise the fact that marginalisation and commercialisation of culture and discriminatory history is no longer acceptable?

I could go on (and on) but instead let’s look at the legal framework.

The legal framework

The Advertising Standards Code provides the criteria to ensure advertisements are legal, decent, honest and truthful, and respect the principles of fair competition. Under rule 1(c), advertisements must not contain anything that is indecent, or exploitative, or degrading, or likely to cause harm, or serious widespread offence, or give rise to hostility, contempt, abuse, or ridicule.

Interestingly, stereotypes may be used to simplify communication, but they must not feature roles or characteristics which, through their content and context, are likely to be harmful or offensive. The advertisement must not include irresponsible or offensive depictions of differences including race, body shapes and sizes.

If an advertisement is found in breach of the code, it must be removed and/or amended. All decisions are released to the media. If a regulatory authority considers there has been a serious breach, the Commerce Commission, Medsafe, and/or the Financial Markets Authority, for example, could prosecute the advertisers.

In the November case of ASB Bank Limited (the tautology gets me every time), an advertisement showed a mixed-race couple arriving to view a house on sale. As they walked up the driveway, the neighbour began to play the bagpipes while sporting a Scottish kilt. The couple backed away from the house and the bagpiper smiled wryly.

A complaint was made saying the advertisement could be promoting racism against mixed-race couples and cultural insensitivity towards Scottish people. The complaints were settled and the advertisement was removed before it went before a Complaints Board.

Human rights considerations

One step further: unlawful discrimination on the grounds of race occurs when a person is treated unfairly or less favourably than others, according to the Human Rights Commission.

About a third of all complaints to the commission are about racial discrimination. Nine out of 10 complaints are resolved by the commission’s team of mediators.

According to this year’s annual report, the commission received 5915 new inquiries and complaints. Of these, 1445 were complaints of alleged unlawful discrimination and 383 were race-related.

The Director of Human Rights Proceedings made 65 decisions on applications for legal representation in the Human Rights Review Tribunal. Of these, the director granted legal representation to 19 applicants.

What does this tell me, as a privileged “European other” woman? Do your research; avoid profiting off those marginalised; consult and include widely; and do no harm. It may take more time, it may seem complicated, and it may be uncomfortable, but it could be worse – imagine a lifetime of discrimination.

Sasha Borissenko is a freelance journalist who has reported extensively on the law industry.

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