BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Martin Crump Late Night Live – stand-in host encouraged running over possums – complainant phoned the show and disagreed with the host – allegedly in breach of good taste and decency, law and order, and fairness standards

Findings
Standard 1 (good taste and decency) – talkback is a robust forum – host’s comments were “tongue-in-cheek” and not intended to be taken seriously – contextual factors – not upheld

Standard 2 (law and order) – not Authority’s role to determine whether deliberately running over possums is a crime – two callers gave the view that it was irresponsible – host discouraged dangerous driving – broadcast did not encourage listeners to break the law or otherwise promote, condone or glamorise criminal activity – not upheld

Standard 6 (fairness) – complainant was allowed more than two minutes to air his views – callers who disagree with a talkback host’s views should expect that they might be rude towards them – termination of the call was not unfair – not upheld

This headnote does not form part of the decision

Broadcast

[1]   During Martin Crump Late Night Live, broadcast between 10pm and 1am on 20 and 21 December 2010, the host, Jeremy Parkinson, who was standing in for Martin Crump, discussed a number of times his view that people should try to run over possums over the Christmas and New Year period. The following comments were made during the programme by the host and callers:

• “You were talking about how every young guy should squash so many possums and trying not to laugh...” (caller)
• “We should, every Christmas/New Year period we should have not the death toll on the road for humans, but for possums.” (host)
• “...there’s fun in killing possums with a car.” (host)
• “When you squash one on the road mate when you’re a young man that’s awesome.” (caller)
• “So if you do get to run over a possum or two this New Year’s give us a call, and I’ll be on over the Christmas/New Year period, I’ll do a running tally of possums, and the person who can knock off the most possums we’ll probably find a DVD or something to give them.” (host)
• “I thought that was a bit irresponsible you advocating people going and hitting possums on the road...” (caller)
• “No I mean don’t go over the centre line to hit a possum, don’t put your lives in danger, but if there’s a possum there run it over.” (host)
• “I don’t think it’s really responsible of you to be saying to people, get out there and be hitting as many possums as you can on the roads, you’ll get a DVD...” (caller)
• “What’s wrong with that? ...Don’t you like native bush? Don’t you like native forests?” (host)
• “I know it’s Christmas, and at Christmas, give a gift to a native forest and kill the odd possum. What’s wrong with that?” (host)
• “I was just laughing, I thought I was the only one that hit possums when they’re on my side of the road.” (caller)
• “Well you know, don’t be silly. Don’t be lining someone else’s possum up. ...Anyway, no nothing wrong with knocking off the odd possum.” (host)
• “No, there’s nothing wrong with it. You’ve got to see if you can get them... so they’re still not too badly damaged you can have the odd possum stew now and then.” (caller)

[2]   At approximately 12.10am, the complainant phoned in to the programme and spoke with the host. They had the following discussion:

Caller:   On the aspect of the um... possums. You’re advocating...

Host:     Death to them all that’s what I’m advocating.

Caller:   Yeah no I hear that. But the way you’re thinking of going about it is not a very good idea.

Host:     Well I’m not saying that it’s you know going to solve the problem but I mean I’m just saying
            that if there is a possum and you’re not going to cause yourself, your passengers and
            people on the other side of the road harm by nailing it, then nail it. Don’t hesitate.

Caller:   Yeah I know what you’re saying.

Host:    I’m not saying that it’s going to cure the country of the scourge that is the possum but you’ll
            be doing your part.

Caller:   Well that is not a way to treat a creature, and it’s not the way to look at it. And I’ve got to
            admit...

Host:     It’s a human right.

Caller:   You’ve got to listen...

Host:     It’s a human right, Mike. ...It’s a rite of passage for young New Zealanders. ...It’s in the Bill
            of Rights, subsection 4. It’s in there somewhere.

Caller:   Listen I’m telling you, you would probably find that you’re not only wrong, it’s totally the
            opposite. You’re probably liable if you do that and you don’t go back and check on that
            animal. You’re potentially liable to be taken to court for it.

Host:    Good luck to them Mike, is all I can say.

Caller:   Why do you think they do that?

Host:    Okay say there’s a possum, right, there’s a possum smack bang in the middle of the road.
            What do I do? Do I move out of the way to avoid it or do I run it over?

Caller:   Ideally if you can avoid it, you do.

Host:    No you do not know the road rules do you, Mike. Because you don’t brake, you don’t try to
            avoid it. The most important thing is, you don’t put a human life at the expense of a bloody
            possum, Mike. Sorry, but you’re wrong.

[3]   At that point, the host terminated the phone call with the complainant.

Complaint

[4]   Michael O’Halloran made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that the programme’s “promotion of cruel acts to animals by telling people that they are doing the country a service by driving around and running down possums on the road” breached standards relating to good taste and decency, law and order, and fairness. He said that he had phoned the station and informed the host that it was probably illegal to deliberately run over possums, and that the host had no respect for the law. The host interrupted him, he said, and then terminated the phone call without letting him voice his views.

Standards

[5]   Mr O’Halloran nominated Standards 1, 2 and 6 of the Radio Code of Broadcasting Practice in his complaint. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 2 Law and Order

Broadcasters should observe standards consistent with the maintenance of law and order.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[6]   RadioWorks contended that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was aired. It noted that the Authority had previously acknowledged that talkback is a robust and provocative forum, and an opinionated environment in which the host and callers often put strong views across forcibly. It also noted that the programme had an adult target audience.

[7]   RadioWorks argued that the host’s humour was clearly “tongue-in-cheek”, for example calling running over possums a “human right” and “a rite of passage for young New Zealanders”, and saying that it was in the “Bill of Rights subsection 4”. It considered that it was clear that the host was not “entirely serious”. The broadcaster concluded that in this context the host’s comments did not go beyond the expectations of the target audience, and it declined to uphold the complaint under Standard 1.

[8]   The broadcaster noted that the Authority had stated on a number of occasions that the intent behind Standard 2 was to prevent broadcasts that encouraged viewers to break the law or otherwise promoted, glamorised or condoned criminal activity (e.g. Byles and TVNZ¹). RadioWorks maintained that nothing in the broadcast encouraged listeners to break the law. It considered that the host made it clear that he did not condone unsafe driving, and that he discussed hitting possums in a “tongue-in-cheek” manner which did not seriously encourage listeners to “go out and run over possums with cruel intent”. RadioWorks therefore declined to uphold the Standard 2 complaint.

[9]   Turning to fairness, the broadcaster argued that, given the robust nature of talkback, and the fact that it is well known that the hosts forcibly express their opinions and sometimes cut callers off, Mr O’Halloran was not treated unfairly. It considered that “being cut off and talked over can be normal practice on talkback” and that people who phoned in should expect this. RadioWorks said that, although the host criticised the complainant’s opinion, it did not amount to “vicious personal criticism” of the complainant that would breach Standard 6. Accordingly, it declined to uphold the fairness complaint.

Referral to the Authority

[10]   Dissatisfied with the broadcaster’s response, Mr O’Halloran referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He maintained that deliberately running over possums was “probably illegal”, and that the host’s decision to terminate his phone call deprived listeners of an alternative viewpoint.

Authority's Determination

[11]   The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 1 (good taste and decency)

[12]   When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• Martin Crump Late Night Live was broadcast on Radio Live between 10pm and 1am
• the programme’s adult target audience
• expectations of regular listeners
• the robust nature of talkback, which the Authority has acknowledged on numerous occasions.

[13]   The Authority has previously acknowledged that talkback is generally recognised as a robust forum in which hosts and callers often express strong or provocative views (e.g. Lochead and RadioWorks²). On this occasion, we consider that the host’s comments about running over possums were tongue-in-cheek and were not intended to be taken seriously. He was clearly attempting to provoke a reaction from listeners. The comments also formed a very small part of a three-hour talkback programme which canvassed a range of topics.

[14]   Taking into account the above contextual factors, we find that the host’s comments did not threaten standards of good taste and decency in breach of Standard 1, and we decline to uphold this part of the complaint.

Standard 2 (law and order)

[15]   The complainant suggested that deliberately running over possums might be illegal, and considered that the host had no respect for the law. The Authority cannot assume the role of a criminal court and determine whether an action amounts to a criminal offence; its task is to determine whether the programme breached broadcasting standards. The Authority has previously stated that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity (for example, Taylor and TVWorks³).

[16]   We note that two callers, including the complainant, put forward the view that it was irresponsible to try and run over possums, saying, for example:

• “I thought that was a bit irresponsible you advocating people going and hitting possums on the road...” (caller)
• “I don’t think it’s really responsible of you to be saying to people, get out there and be hitting as many possums as you can on the roads, you’ll get a DVD...” (caller)
• “...that is not a way to treat a creature, and it’s not the way to look at it.” (complainant)
• “You’re probably liable if you do that and you don’t go back and check on that animal. You’re potentially liable to be taken to court for it.” (complainant)

[17]   We also note that the host specifically discouraged people from driving dangerously in order to kill possums, when he made the following comments:

• “I mean don’t go over the centre line to hit a possum, don’t put your lives in danger, but if there’s a possum there run it over.”
• “Well you know, don’t be silly. Don’t be lining someone else’s possum up.”
• “...if there is a possum and you’re not going to cause yourself, your passengers and people on the other side of the road harm by nailing it, then nail it.”
• “The most important thing is, you don’t put a human life at the expense of a bloody possum”.

[18]   Accordingly, we do not consider that the broadcast encouraged listeners to break the law, or otherwise promoted, condoned or glamorised criminal activity. We therefore decline to uphold the Standard 2 complaint.

Standard 6 (fairness)

[19]   Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. Mr O’Halloran argued that he was treated unfairly because he was not allowed to voice his views, and the host cut him off.

[20]   The Authority has previously recognised that “talkback radio [is] a robust environment, in which hosts will sometimes behave rudely. Rudeness is not in itself a breach of broadcasting standards, but where hosts cross the line and abuse a caller, their manner and language needs to be considered as a potential breach of the fairness standard” (see Mazer and RadioWorks⁴).

[21]   The Authority has also previously commented that “broadcasters are entitled to exercise their editorial discretion to screen calls to talkback shows, provided that such screening does not breach standards relating to balance or fairness” (see Cao and TRN⁵). 

[22]   We note that Mr O’Halloran was allowed more than two minutes to engage with the host and voice his opinions on air. While it was clear that the host disagreed with the complainant’s views, we consider that he allowed Mr O’Halloran a fair opportunity to present his perspective, and that he was not rude or abusive towards him. In our view, it is well known that talkback hosts forcibly express their views and sometimes cut callers off, and the complainant should have been aware that the host could terminate his call if he disagreed with the host’s position on the topic under discussion.

[23]   Accordingly, we find that the complainant was not treated unfairly, and we decline to uphold the Standard 6 complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
7 June 2011

Appendix

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

1   Michael O’Halloran’s formal complaint – 21 December 2010

2   RadioWorks’ response to the complaint – 22 February 2011

3   Mr O’Halloran’s referral to the Authority – 3 March 2011

4   RadioWorks’ response to the Authority – 6 April 2011

¹Decision No. 2006-051

²Decision No. 2010-031

³Decision No. 2010-008

⁴Decision No. 2010-021

⁵Decision No. 2008-143