spinofflive
Image by Tina Tiller
Image by Tina Tiller

MediaJanuary 28, 2022

Benedict Cumberbatch loved New Zealand – he also stank it out

Image by Tina Tiller
Image by Tina Tiller

Local media has again erupted after Benedict Cumberbatch revealed that he loved his 2020 stay in New Zealand. But something stinks about his story. 

This week Benedict Cumberbatch made the mistake of mentioning, for about the three thousandth time, that he loved being in New Zealand while filming Jane Campion’s The Power of the Dog in 2020. Spending over five months here, including during the first Covid-19 lockdown, Sir Cumbers has been extremely generous in his praise of our country, gushing to various media outlets about this “welcoming place” that he “loved” and considered “a new home.” 

But there’s one crucial detail missing in the latest round of crooning Cumberbatch coverage: the notoriously yum-smelling actor chose to absolutely stink himself up while he was here. To fully embody The Power of the Dog’s brooding ranch owner Phil Burbank, Cumberbatch stopped showering in preparation for filming. He told Esquire that he craved a “layer of stink” on the character, saying: “I wanted people in the room to know what I smelt like.” 

It didn’t stop at bathing, either. Phil Burbank goes hard on the durries, so Cumberbatch went hard on the durries. “I gave myself nicotine poisoning three times,” the Esquire article also revealed, “when you have to smoke a lot, it genuinely is horrible.” This, combined with the fact that he asked wardrobe to stop laundering his costumes, creates quite the tang in the mind’s nose. “The minute I put those clothes on, I was [Phil]. I could smell him,” Cumberbatch said, . 

Do you smell?

Given that this is not even the first time that a stinky actor has plagued our pristine shores, The Spinoff has crunched the data and done the relevant contact tracing to try and stop the stench. Here are the locations of stink-terest visited by a possibly ponging Benedict Cumberbatch while he was in Aotearoa, a place that he allegedly “loved”, nearly two years ago. 

Ponsonby Social Club, Auckland

If you were in Ponsonby Social Club on Saturday June 20, 2020, you are a close contact of the Cumberstench. As reported by Newshub, Benedict Cumberbatch and co-stars Kirsten Dunst and Jesse Plemons were said to enjoy “top shelf stuff” at the Ponsonby Road hotspot, including some Japanese whiskey and tequila. Sounds like some pretty pungent liquor. Sounds like somebody trying to cover their tracks. Sounds like the exact kind of stinker who would move into a “more private area” (smell-proof chamber?) as the night progressed. 

Summerlee Luxury Retreat, Hawke’s Bay

In one of the most impressive examples of investigative journalism of the last decade, an eagle-eyed Hawkes Bay Times reporter spotted a bookshelf in the background of Benedict’s Zoom call that looked a lot like the bookshelf in Summerlee Luxury Retreat in the Hawke’s Bay. According to their website, Summerlee Luxury Retreat boasts plenty of places to bathe, including a pool, a spa and seven bathrooms. 

But, using the power of important journalistic tool of red circles, I would like to draw your attention to ANOTHER crucial detail that suggests NONE of those facilities were utilised by the ‘Batch. 

Original circle on right by Hawkes Bay Today, additional circles on left by The Spinoff.

Do you see? His nostrils are flaring. His mouth is upturned in disgust. All my modeling points to one possible scenario: Cumberbatch is smelling himself in this moment. Given that Summerlee is within “easy reach” of New Zealand’s largest gannet colony, and that gannets are famously New Zealand’s stinkiest bird, you have to once again ask – coincidence or cover-up? 

Unnamed Sushi restaurant, New Zealand

Cumberbatch has repeatedly shared an anecdote about director Jane Campion inviting him out to a sumptuous sushi lunch while he was, as The Spinoff understands, in a state of peak stench. “I was literally emanating – I had a biohazard zone around me,” he told USA Today. “It was not a good time to cuddle up to Cumberbatch and take a selfie.” Retelling the story again on Late Night with Seth Meyers, he recalled walking “five feet” in front of the director, and that his malodorous musk caused selfie hunters to “run in the opposite direction”.

To be safe, anyone who went to any sushi restaurant in New Zealand in 2020 should probably have a shower. 

Uptown Bounce, Auckland

The Spinoff has spoken to an anonymous source who spotted Cumberbatch at popular Auckland trampoline park Uptown Bounce in July, 2020. “Most memorable thing from him being there was that he was wearing trackpants but they seemed like the most expensive/luxurious trackpants in the world,” they said, “and he stunk.” 

Anyone who has been on or near a trampoline in the last two years is being asked to spray themselves with Impulse and/or Lynx Africa. 

Camberley Dairy, Hastings

As reported by Hawke’s Bay Today, the go-to publication for all things Cumber and Batch, a dubious source claimed to have seen the star at the Camberley Dairy. “Pretty sure he shoplifted a bag of Burger Rings,” they recalled. The Spinoff has no further comment to make without a lawyer present, apart from that Burger Rings are one of the top three chips, and that anyone who has come into contact with Burger Rings in the last two years is deemed a legend. 

Mudbrick Vineyard, Waiheke Island

“Sometimes I forget that I work at a bougie winery,” said Haylee Oliver, assistant vineyard manager at Mudbrick Vineyard, “but today I was cruising by the winery restaurant on my tractor and saw Benedict Cumberbatch sitting there.” The key words “cruising” and “tractor” suggest that the exposure event was both fleeting in duration and physically distanced, so Waiheke residents are advised to self-monitor for any alarming aromas. 

Craggy Range, Hawkes Bay

“Saw him at Craggy Range for lunch! I fangirl’d out BIG TIME!” Nic Olsen told The Hawkes Bay Today. “He wasn’t keen on a selfie.” There’s no mention of what he smelled like during his visit, but the selfie rejection suggests it was most likely because of the fumes. I would also like to point out another chilling detail from my very own Craggy Range reporting from 2019

See the caption on this rump shot from my own trip? “Oh misty eye of the mountain below” is of course a lyric from the song ‘I See Fire’ by Ed Sheeran, which was of course commissioned for the soundtrack for The Hobbit: The Desolation of Smaug in 2013, which of course stars Cumberbatch as the titular Smaug. Coincidence? Almost certainly. Interesting? Barely. More to come on this story as it develops. 

Did you smell Benedict Cumberbatch in 2020? Get in touch alex@thespinoff.co.nz

This article has been updated to reflect the fact that Benedict Cumberbatch was spotted, and possibly smelt, at both Craggy Range and Mudbrick Vineyards. 

Keep going!
Image design: Tina Tiller
Image design: Tina Tiller

MediaJanuary 26, 2022

The worrying implications of the Tova O’Brien decision

Image design: Tina Tiller
Image design: Tina Tiller

In purely legal terms, the former Newshub reporter’s case is of limited interest. But in practical terms, the decision could have a wide reach.

On Monday, the Employment Relations Authority held that ex-Newshub political editor Tova O’Brien must wait out a seven-week “non-competition” period before starting her new gig as a morning radio presenter. Beyond the decision’s meaning for the media world – something The Spinoff’s Duncan Greive considers here, and Newsroom’s Nikki Mandow here – it has focused attention on the murky topic of restraint of trade clauses in employment contracts.

Such clauses come in various flavours. O’Brien’s contract, for example, contained three different ones: a non-compete clause; a non-solicitation clause; and a non-dealing clause. These clauses seek to impose a (temporary) legal restriction on an employee’s freedom after their employment ends, often preventing them from starting a new job for a period of time, or limiting what they can do when they’re working for someone else.

The starting point with such provisions is simple; they presumptively are unlawful, and so unenforceable, on public policy grounds. That’s because of the basic imbalance of power that exists between an employer and an employee, one of whom controls the means of production and the other of whom must sell their labour to survive (as Karl Marx has taught us). Not only does this empower an employer to impose terms on the relationship that are greatly to their benefit, but it also makes the impact of a restraint of trade provision quite disproportionate. If the price of leaving your job is to have to wait weeks or months before getting paid to do a new one, you’re far, far less likely to do so (unless you have won Lotto or similar).

There are then flow-on societal effects from imposing such restraints. They interfere with the free transfer of skills and talent to the place where these are most valued (as Adam Smith has taught us). And stripping employees of the power of exit means they are disempowered in the employment relationship generally. Will your boss value you as much if you realistically can’t walk out the door on them? And will you really complain about conditions, or challenge workplace culture, or join a union if doing so might not only get you sacked, but you then have to wait for weeks or months before you can start getting paid by someone else?

Here’s how one judge summarises the underlying policy approach, in a case we’ll come back to:

“It is of paramount importance that the courts should maintain intact the principle that employment contracts must be free from servile elements. The progress of civilisation since the abolition of slavery has been by uncertain and stumbling steps. The international community has found it necessary repeatedly to condemn and prohibit colourable attempts at dominion and control imitating or resembling slavery. Despite the general rule favouring freedom of contract, the court must remain vigilant to safeguard the weak from becoming the possessions of the strong. Pygmalion may have made Galatea and Professor Higgins may have made Eliza Doolittle what she was but neither man owned his fair lady.”

However, this doesn’t mean that it is unlawful to put a restraint of trade clause into an employment contract (more on this later). Rather, the courts have said that these clauses will only be enforced in certain circumstances where it is fair and reasonable to do so. This approach recognises that there are situations where it very well might be legitimate for an employer to seek to temporarily limit who their employee works for next, or what they may do for a new employer. A senior executive of a company who has access to all its future commercial plans. A technician working on some new industrial process. If these sorts of employees can jump over to a direct rival and immediately start using all the information they hold in their new job, then that could do real harm to a business.

Tova O'Brien in parliament
Tova O’Brien reporting for Newshub (Image: Newshub)

To catch such situations, the courts have carved out an exception to their general non-enforcement stance where an employer can prove certain things. They must show that they have some special proprietary interest that deserves protection, over and above simply having an employee going to work for a rival. They must show that the particular restraint in question is a fair and reasonable one, having regard to an employee’s right to earn a living. And finally, they must show that their interest in having the restraint of trade provision enforced outweighs any wider interests of the public.

Did Tova O’Brien’s case then really fit into this narrow exception, such that the particular restraint of trade clauses in her contract should be enforced? Well, that’s questionable. For one thing, the various special proprietary interests that Discovery (Three’s owner and Tova O’Brien’s former employer) claimed to want to protect don’t seem particularly relevant to her new role as an on-microphone presenter of a breakfast radio show. Instead, it seems more that they didn’t like having a talent they had made a household name headlining a show on another media company’s platform. And the courts have rejected previous attempts at preventing exactly this: “I decline to accept that an employer can acquire any proprietary interest in that talent, continuing after the end of the employment, merely because it has made that talent known or better known.”

But perhaps more notably, the authority engages in no real discussion regarding the “interests of the public” criteria. For, even if Discovery do have special proprietary interests to protect, the price of their doing so is keeping Tova O’Brien off the nation’s airwaves for seven weeks. While there’s a lot of social media haters out there (hard eyeroll at them), that’s a genuine loss to the public discourse. And it places fetters on not only O’Brien’s right to freedom of expression under the New Zealand Bill of Rights Act 1990, but also on the rights of those who may want to hear from her. None of which receives any attention in the authority’s decision, despite that legislation being binding on it.

As such, there’s a reasonable argument that the authority got this particular decision wrong. In purely legal terms, that is of limited interest. The authority is an investigative body set up to: “resolve employment relationship problems by establishing the facts and making a determination according to the substantial merits of the case, without regard to technicalities”. Restraint of trade cases turn primarily on their own unique factual situations. While the outcome is binding on O’Brien, and undoubtedly is hard for her on both emotional and financial grounds, it doesn’t technically bind any future decisions by other members of the authority. And if O’Brien (or her new employers at Mediaworks) is minded to pay lawyers more money, the outcome may be appealed to the Employment Court for a fuller examination.

Beyond this strictly legal aspect, however, the case may resonate more widely. All sorts of employment contracts have some form of restraint of trade provision inserted into them. Many of these actually may be completely unenforceable; they’re mere paper tigers, as opposed to genuinely legally binding obligations that will bite if you quit for another job. But how can you be sure which is which? If you’ve seen a news story about someone like Tova O’Brien having to sit out seven weeks without pay, are you really going to risk finding out if the clause in your contract is just words or something that you will be made to follow? And in that case, does the mere fact that such clauses can be inserted into your employment contract represent something of a fait accompli? Meaning that perhaps our parliament, along with our courts, must remain vigilant to safeguard the weak from becoming the possessions of the strong.


Follow Duncan Greive’s NZ media podcast The Fold on Apple Podcasts, Spotify or your favourite podcast provider.

But wait there's more!