BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A television documentary about Irish immigrant families living in New Zealand

provided the subject matter for a talkback show on Access Community Radio on 11

January 1995 between 10.00–11.30pm. The show, hosted by Oliver Lee, was titled

Ireland Calling and included an interview with the producer of the television

programme.

Mr O'Dea, one of the immigrants featured in the television documentary, complained

to Access Community Radio that comments made about him during the talkback

programme were defamatory, unfair to him and breached his privacy.

In its response, Access Radio pointed out that the programme included the comments

of Vincent Bourke, the producer of the television documentary, who had explained the

reasons for inclusion of all of the participants, including Mr O'Dea. Mr Bourke had

noted that many of those who left Ireland because of poor living and working

conditions had come to New Zealand determined that conditions here would be

different. Access also noted that the presenter had apologised both on-air and

personally to Mr O'Dea. Dissatisfied with that response, Mr O'Dea referred his

complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting

Act 1989.

For the reasons given below, the Authority declined to uphold the complaint.

Decision

The members of the Authority have listened to a tape of the programme complained

about and the apology, and have read the correspondence which is summarised in the

Appendix. As is its normal practice, the Authority has determined the complaint

without a formal hearing.

The programme Ireland Calling, broadcast by Access Radio in Auckland on 11

January 1995 between 10.00–11.30pm, focussed on a television documentary

screened the previous evening which had featured three Irish immigrant families to

New Zealand. During the programme, the presenter Oliver Lee interviewed Vincent

Bourke, the producer of the documentary, seeking his reasons for including those

particular families and challenging his view of whether they were all representative of

the Irish immigrants in New Zealand. He also reported comments made by listeners

who had seen the documentary and gave his own views about the inclusion of Mr

O'Dea on the programme. After the broadcast, the presenter apologised by telephone

to Mr O'Dea. The following week he broadcast an apology and retraction to Mr

O'Dea for any offence the remarks had caused and offered him an opportunity to

speak on the programme.

Mr O'Dea complained to Access that comments made about him were defamatory and

that it was unfair to state that he was a loser and had made no contribution to New

Zealand society. He also regarded it as unfair that he was described as being a full-

time protester and that if he had spent more time working he would have a better

home than a state house. He regarded the apology given by the presenter as

inadequate and the offer of airtime insufficient to correct the harm which had been

done. As well as a full apology, he sought monetary compensation for the invasion of

his privacy and resulting distress.

Access Radio confined its assessment of the complaint to a consideration of standard

R5, which requires broadcasters:

R5  To deal justly and fairly with any person taking part or referred to in

any programme.

Access noted that in the interview, Vincent Bourke, the producer of the television

programme, provided a justification for the inclusion of the families in the

documentary, including Mr O'Dea. He explained that thousands of Irish people like

Mr O'Dea had left Ireland because of the poor working and living conditions and that

many of them had been associated with the Trade Union movement. He noted that

many had changed the fabric of life in New Zealand because of their socialist beliefs

and their determination that such conditions as existed in Ireland and Britain should

not be perpetuated in New Zealand. As for the comments made by the presenter of

the programme, Access observed that he had apologised personally to Mr O'Dea and

had also made an apology and retraction on his programme the following week, which

was delivered with "obvious sincerity". In addition, Access noted, Mr O'Dea had

been offered an opportunity to appear on air, but had refused to do so. In its view,

the treatment received by Mr O'Dea was just and fair and it declined to uphold the

complaint.

The Authority's first task was to decide whether Access was correct to confine its

consideration of the complaint to the standard requiring fair treatment only, when Mr

O'Dea had also sought redress for breach of his privacy. The Authority noted that

Mr O'Dea's original complaint alleged that he had been defamed and had been brought

into odium and contempt because of the broadcast. Since defamation in itself is not a

standards matter, the Authority's view was that his concerns were adequately

addressed by standard R5. It noted that Mr O'Dea had addressed a letter to Access

Radio in Wellington advising that he was amending his complaint to include both

standard R5 and the privacy provisions and sought rulings on both provisions. In the

Authority's view, Access Radio (Auckland) was not obliged to consider that request

since it was outside the statutory time limits.

Although it did not see the television programme, the Authority understood that it

portrayed three immigrant families who the producer (Vincent Bourke) considered

were representative of the thousands of Irish immigrants who had come to seek a

better way of life in New Zealand. It was apparent, from the comments made by the

presenter of Ireland Calling, that many Irish immigrants did not agree that Mr O'Dea

was a good representative of their group because he was unemployed and seen to be a

political activist. While the producer explained that the documentary was an attempt

to show an accurate picture of the life of the Irish in New Zealand and not to paint too

rosy a picture, the presenter disagreed, describing Mr O'Dea as a full time protester

and a bit of a loser.

In the Authority's view, because Mr O'Dea had consented to appear on the television

programme, he had exposed himself to justifiable comment. Although the host's

comments may have been somewhat unfair, the Authority considered the remarks

were not vindictive in any way. It believed that since Access had accepted full

responsibility for the comments, had offered both a personal and an on-air apology,

and had given the complainant the opportunity to appear on air, it had dealt with the

matter appropriately. Accordingly, it declined to uphold the complaints that Mr

O'Dea had been treated unfairly and, that having upheld the complaint, the apology

given by Access together with the opportunity to be heard was insufficient.

For the reasons set forth above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Iain Gallaway
15 June 1995

Appendix

Mr O'Dea's Formal Complaint to Access Community Radio Auckland Inc - 24

January 1995

Mr James O'Dea of Auckland complained to Access Community Radio Auckland Inc

that its broadcast of the programme Ireland Calling on 11 January 1995 contained

statements that defamed him and brought him and his family into odium and

contempt.

The programme, hosted by Oliver Lee, examined a television documentary which had

screened the previous evening and in which Mr O'Dea was featured as one of the

immigrants who had come to New Zealand from Ireland to begin a new life.

Although Mr Lee later apologised to Mr O'Dea for the comments he made, in Mr

O'Dea's view his apology did not undo the damage done to him and his family.

He attached a part of the transcript and a copy of an article in New Truth on 20

January 1995 which reported some of the comments made.

Further Correspondence

In its initial response, dated 7 February 1995, Access asked Mr O'Dea to specify

which standards he alleged had been breached by the broadcast. It provided a copy of

the Complaints Procedures pamphlet.

It also pointed out that the host had broadcast an apology to Mr O'Dea on 18 January

on his own initiative and had apologised personally and offered Mr O'Dea the

opportunity to speak on his next programme, which he had declined.

Upon receipt of the information about the complaints process, in a letter dated 16

February, Mr O'Dea wrote directly to the Broadcasting Standards Authority alleging a

breach of his privacy. Citing statements made during the programme which he alleged

were in breach, he sought a full apology and a monetary settlement as compensation.

On 22 February Access provided Mr O'Dea with a copy of the relevant portion of

the Radio Code of Broadcasting Practice highlighting standard R5.

Upon learning that his complaint to the Broadcasting Standards Authority was outside

of the statutory time limits, Mr O'Dea, in a letter dated 7 March 1995, addressed his

complaint to Access Radio in Wellington, advising that he was now complaining that

standards R5 and R11 had been breached by the broadcast.

Access Community Radio Auckland Inc's Response to the Formal Complaint -

22 March 1995

Access advised Mr O'Dea that it had considered his complaint under standard R5 of

the Radio Code of Broadcasting Practice. It noted that the guest speaker, television

producer Vincent Bourke, successfully justified inclusion of all of the participants in

the documentary. When he referred to the thousands of Irish people (such as Mr

O'Dea) who had left Ireland because of the poor working and living conditions, he

noted that many of those Irish people changed the fabric of life in New Zealand

because of their beliefs and their determination that such conditions as existed in

Ireland and Britain should not be perpetuated in New Zealand.

In its view, the programme dealt justly and fairly with everyone referred to.

In addition, Access noted that the host had offered Mr O'Dea a personal apology and

air-time on his programme, which had been declined. Further, Mr Lee had broadcast

an apology and a retraction the following week on his programme which, according to

Access, he had delivered with obvious sincerity.

Access advised that Mr O'Dea's letter addressed to Access Wellington was not

included as part of its consideration.

A transcript of the programme was provided.

Mr O'Dea's Referral to the Authority - 14 April 1995

Dissatisfied with Access Radio's decision not to uphold his complaint, Mr O'Dea

referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

Mr O'Dea wrote that the decision by Access implied that comments made by the host

were balanced by the statements of Mr Bourke, the producer. However, he argued,

Mr Bourke's comments were part of the general complaint as they added to the

generally insulting tone of the programme. Furthermore, he added, comments by Mr

Bourke about the views of Mr O'Dea's former associates in Ireland did not reflect the

views of those people as expressed in the unedited television tapes.

Referring to the apology made "with obvious sincerity", Mr O'Dea pointed to the

remarks made in the New Truth on 20 January where Mr Lee was quoted as saying

"...people were angry at the idea of a loser being seen as representing the Irish

community in New Zealand" indicated how insincere the apology was.

Turning to the station's offer of air-time, Mr O'Dea wrote that he declined the offer

because he felt that going on air would only exacerbate the situation and further

damage his reputation. In addition, to accept that offer would have precluded him

from pursuing other legal remedies. He noted that there had been no apology from the

station.

Mr O'Dea repeated that he sought damages for the breach of his privacy and for the

harm done to his reputation. If damages were not possible, Mr O'Dea requested that

he go on air to discuss his views on Ireland and the political situation in New Zealand.

He suggested that returning to a debate about his personal integrity would not be

helpful.

Access Radio's Response to the Broadcasting Standards Authority - 24 April

1995

Access sought to point out that it was not responsible for what was broadcast on the

television documentary, nor for the editing process. It described the content of the

unedited tapes as irrelevant to the complaint.

Access also maintained that it was not responsible for the reporting and editorial style

of the article published in New Truth.

Mr O'Dea's Final Comment - 12 May 1995

Commenting on Access Radio's response to the Authority, Mr O'Dea submitted that

he referred to the New Truth article to show that the apology made by Mr Lee lacked

sincerity and that he later reiterated the same comments. The unedited television

tapes were referred to as they demonstrated that the comments made by Mr Bourke

on radio, which purported to reflect the views of Mr O'Dea's associates in Ireland,

did not in fact reflect those views.