BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Talkback with Michael Laws – host started discussion about the Star Anise Waru murder investigation – stated that the baby’s parents were “poster children for sterilisation” – included an argument with a caller who contended Mr Laws was promoting eugenics – allegedly in breach of good taste and decency, controversial issues, accuracy, fairness, discrimination and denigration and responsible programming

Findings
Standard 6 (fairness) – talkback radio is a robust environment – callers aware that Mr Laws could be rude to them if they disagreed with his views – remarks did not amount to abuse – not upheld

Standard 1 (good taste and decency) – contextual factors – comments were rude and obnoxious, but not abusive – not upheld

Standard 4 (controversial issues – viewpoints) – involuntary sterilisation of child abusers not a controversial issue of public importance – not upheld

Standard 5 (accuracy) – comments were clearly opinion – host made no unqualified statements of fact – not upheld

Standard 7 (discrimination and denigration) – complainant did not identify the group or section of the community she believed had been denigrated or discriminated against – comments lacked necessary invective to reach threshold – not upheld

Standard 8 (responsible programming) – host entitled to voice his opinions on involuntary sterilisation in the manner that he did – adult audience would have known host was being provocative to generate discussion – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   During an episode of Talkback with Michael Laws, broadcast on Radio Live between 9am and 12pm on Thursday 19 November 2009, the host began a discussion about the investigation into the murder of a seven-month-old baby, Star Anise Waru.

[2]   At approximately 11.30am, a caller rang in to express his disgust and anger at the conduct of the baby’s parents and also commented on other crimes where small children had been victims of family violence. Towards the end of the conversation, the host stated:

You know, Nyree Hoper and Robert Waru are poster children for sterilisation in this country... these are the sorts of people that should not be allowed to have children.

[3]   Later, referring to the suspects in the murder case involving the Kahui twins, the host said:

These people, for God’s sake, the whole idea that they can go out and breed... what, the next generation of misfits and baby-killers like them, I’m sorry it shouldn’t be an option.

[4]   At approximately 11.45am, a caller rang in and argued with Mr Laws about his views. The caller stated that she was “troubled” by Mr Laws’ repeated emphasis on sterilisation of individuals as a panacea for crime, in particular, child abuse. She contended that Mr Laws was talking about a eugenics programme.

[5]   Mr Laws disagreed with the caller that he was talking about eugenics and said, “No, you’re under a misapprehension... I’m talking about making sure that bad people who kill children should not be allowed to breed”.

[6]   The caller responded by saying, “But once you get a body politic or a committee of people deciding who breeds, who lives, who dies, you are definitely talking about eugenics”. The host continued to disagree with the caller saying, “This is why you’re crazy. You’re a crazy Yank coming over here and telling us how to live our lives”.

[7]   The caller said, “I’m not trying to tell you how to live your life, I’m telling you to be frightened of recommending a programme of eugenics... It’s a very, very dangerous road to go down”. The caller continued to reiterate her argument that a committee would be needed to decide who should be sterilised, and that this was a “frightening prospect”. The host then cut her off and said:

What is frightening is that people like you are defending child murderers in our midst, that’s what’s frightening... please go back to the United States of America, can you do that for me? Off you go, see you later, and take your stupidity with you and your defence of child murderers.

I loathe Yanks that come over here and lecture to us. We get the same type of left-wing, liberal Yanks and seriously, can you guys just go home... head off home now, we really don’t want you here.

Complaint

[8]   Cathryn Mazer made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that Mr Laws’ comments breached broadcasting standards relating to good taste and decency, controversial issues, accuracy, fairness, discrimination and denigration and responsible programming.

[9]   The complainant contended that Mr Laws had been talking about eugenics when commenting on sterilisation. She said that she found Mr Law’s remarks about sterilisation “deeply troubling”, because such methods had fallen into disrepute over the years. She also believed that the New Zealand public listening at the time would have been “generally unaware of the history of eugenics”.

[10]   Ms Mazer said that eugenics was the study or belief in the possibility of improving the qualities of the human species by means such as discouraging reproduction by persons with birth defects or inheritable traits that were undesirable. She argued that Mr Laws had not proposed a method for deciding when sterilisation should occur or who decided which people should be sterilised.

[11]   The complainant contended that Mr Laws had dismissed entire populations of people as “feral, without citing any social research on crime statistics and origins”.

[12]   Ms Mazer said that she had called in to challenge the philosophy being espoused by Mr Laws, but that he had told her he was “sick of Yankees”, described her as “you people” and said that he “loathed” her.

[13]   The complainant argued that the broadcaster was allowing Mr Laws to disseminate “very, very extreme views involving human breeding programmes” couched as a “mainstream panacea for crime”. She contended that the dialogue surrounding eugenics was “extremely serious” and that Mr Laws’ comments in relation to sterilisation were controversial.

Standards

[14]   RadioWorks assessed the complaint under Standards 1, 4, 5, 6, 7, and 8 and guidelines 1a, 4a, 5a, 5b, 6a, and 7a of the Radio Code of Broadcasting Practice. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Guideline 1a

Broadcasters will take into account current norms of good taste and decency, bearing in mind the context in which any language or behaviour occurs and the wider context of the broadcast e.g. time of day, target audience.

Standard 4 Controversial Issues –Viewpoints

When discussing controversial issues of public importance in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guideline 4a

The assessment of whether a reasonable range of views has been allowed for takes account of some or all of the following:

• the programme introduction;
• the approach of the programme (e.g. taking a particular perspective);
• whether listeners could reasonably be aware of views expressed in other coverage;
• the programme type (e.g. talk or talkback which may be subject to a lesser requirement to present a range of views)

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Guidelines

5a   The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

5b   Talkback radio will not usually be subject to the accuracy standard, except where the presenter makes an unqualified statement of fact.

Standard 6 Fairness

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

Guideline 6a

A consideration of what is fair will depend on the genre of the programme (e.g. talk/talkback radio, or factual, dramatic, comedic and satirical programmes).

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

Guideline 7a

This standard is not intended to prevent the broadcast of material that is:

(i) factual

(ii) a genuine expression of serious comment, analysis or opinion; or

(iii) legitimate humour, drama or satire.

Standard 8 Responsible Programming

Broadcasters should ensure that programme information and content is socially responsible.

Broadcaster's Response to the Complainant

[15]   With respect to Standard 1, RadioWorks argued that talkback radio was a robust environment and a provocative and opinionated forum that had an adult target audience. It contended that Mr Laws’ comments constituted a “hyperbolic remedy to the themes that were being discussed”.

[16]   The broadcaster contended that the host was “expounding opinion using hyperbole, and not submitting a serious proposal”. It argued that there was reasonable expectation of talkback hosts, and Mr Laws in particular, to make narrow and one-sided controversial statements “for effect” in order to generate discussion and debate.

[17]   RadioWorks considered that, in the context of the programme, Mr Laws’ comments did not stray beyond the bounds of what the target audience would have expected and were within the parameters of the Radio Code. It declined to uphold the Standard 1 complaint.

[18]   Turning to Standard 4, the broadcaster contended that, in relation to Mr Laws’ comments about sterilisation, the programme had not involved a discussion of a controversial issue of public importance. It contended that, while sterilisation was an extreme position, it was not controversial in the sense that there was ongoing public debate about it.

[19]   RadioWorks maintained the host’s comments were mentioned in an off-hand and cavalier manner and that they were not a serious proposal set aside for discussion. It declined to uphold the complaint that the programme breached Standard 4.

[20]   Dealing with accuracy, the broadcaster contended that the complainant had not specifically stated what parts of the broadcast she considered to be inaccurate. However, it reiterated that Mr Laws was not discussing the policy of eugenics, but simply stating his provocative opinion in a flippant manner. It considered that the standard had no application in the circumstances and declined to uphold the accuracy complainant.

[21]   With respect to Standard 6, RadioWorks said that, while Mr Laws’ hosting style is not to everyone’s taste, he was consistent. It said regular callers had an expectation of how Mr Laws may handle their participation in the programme, particularly if he disagreed with them. It contended that people would expect to be cut-off by the host.

[22]   The broadcaster argued that, while Mr Laws’ comments about Ms Mazer could be described as combative, quarrelsome and at certain points disrespectful, they did not exceed the threshold of what was acceptable in this context. It contended that Mr Laws’ remarks did not amount to abusive behaviour and declined to uphold the complaint that Ms Mazer had been treated unfairly.

[23]   Looking at Standard 7, RadioWorks argued that Ms Mazer had not identified which section of the community she considered had been discriminated against or how a section of the community had been denigrated by Mr Laws. In any event, it argued that Mr Laws’ remarks had not reached the required threshold of “blackening the reputation of a class of people”.

[24]   Turning to Standard 8, the broadcaster considered that Mr Laws’ comments about sterilisation were not a “call to action” and reiterated that his comments were not presented as a realistic political policy to deal with child murderers. It pointed out that the comments about sterilisation arose during a conversation with another caller who was responding to the topic of the right to silence of the suspects in the Star Anise Waru case.

[25]   RadioWorks argued that Mr Laws had not requested listeners to campaign or petition any authorities on the matter and that just because some people would find the proposition dangerous or abhorrent, this did not preclude the host’s right to give his opinion. It declined to uphold the complaint.

Referral to the Authority

[26]   Dissatisfied with the broadcaster’s response, Ms Mazer referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Authority's Determination

[27]   The members of the Authority have viewed 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 6 (fairness)

[28]   Standard 6 requires broadcasters to deal justly and fairly with all individuals who participate or are referred to in a programme. The Authority recognizes that talkback radio as 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.

[29]   In the present case, we consider that while the comments made were on the fringe of acceptability, they were not unfair. The complainant was given a fair opportunity to outline her views, and the host’s comments, while derogatory, did not amount to the level of abuse that in the robust context of talkback radio constitutes a breach of the fairness standard.

[30]   Accordingly, we decline to uphold the complaint that Ms Mazer was treated unfairly in breach of Standard 6.

Standard 1 (good taste and decency)

[31]   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:

• Talkback with Michael Laws was broadcast between 9am and 12pm
• the programme had an adult target audience
• audience expectations.

[32]   In our view, while Mr Laws’ views on involuntary sterilisation were extreme, he was entitled to hold those views, to discuss them, and to defend them vigorously against those who held a different perspective. We also find that listeners would have been aware that Mr Laws was taking a deliberately controversial and extreme position, as he is well known for doing, to be provocative and to generate discussion.

[33]   Taking the above contextual factors into account, we find that Mr Laws’ comments did not stray beyond the bounds of good taste and decency and we decline to uphold the complaint that Standard 1 was breached.

Standard 4 (controversial issues – viewpoints)

[34]   Standard 4 requires broadcasters to present significant points of view when a controversial issue of public importance is discussed in a programme. When the Authority considers an allegation that a programme has breached Standard 4, it must consider not only whether a controversial issue of public importance was raised, but also how a programme has approached that issue, the nature of the programme, the context of the discussion, and how a reasonable listener or viewer would have understood the information being presented to them. 

[35]   The Authority has previously said that Standard 4 exists primarily for the benefit of the listening or viewing public (see, for example, Benson-Pope and RNZ¹). The standard is intended to ensure that audiences are being presented with a wide range of significant viewpoints on controversial issues of public importance, so that they can reach a reasoned and informed opinion.

[36]   However, the standard is not intended to prevent the kind of discussions for which talkback radio is well known – free-ranging, robust, spirited, and strongly opinionated. The Authority agrees with the broadcaster that talkback is a means for the public to express their views on a range of issues. There is no requirement for those views to be well-informed, balanced or considered.

[37]   What is important in Standard 4 is how the audience perceives the discussion. The Authority distinguishes between a programme which purports to present a serious and even-handed examination of an issue, and one which is unambiguously opinion-based, as most talkback is, and in which the host's role is to elicit audience reaction by taking a strong position on a topical issue.

[38]   The Authority is in no doubt that the Michael Laws show fell into the latter category.  While the concept of involuntary sterilisation is controversial, the way in which the issue was raised and discussed in the programme did not amount to a discussion of a controversial issue as envisaged by Standard 4. Accordingly, the Authority concludes that Standard 4 does not apply, and therefore it declines to uphold this aspect of the complaint.

Standard 5 (accuracy)

[39]   Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programmes are accurate in relation to all material points of fact and do not mislead.

[40]   Guidelines 5a and 5b state that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion and that talkback radio will not usually be subject to the accuracy standard, except where the presenter makes an unqualified statement of fact.

[41]   In our view, Mr Laws was clearly espousing his personal views and opinions on involuntary sterilisation and he did not make any unqualified statements of fact to which the accuracy standard applied. As stated above in paragraph [32], Mr Laws was taking an extreme position and being deliberately provocative to generate discussion.

[42]   Accordingly, we decline to uphold the complaint that the programme was inaccurate.

Standard 7 (discrimination and denigration)

[43]   Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community.

[44]   We note that Ms Mazer has not identified which section of the community she considered had been discriminated against or denigrated by Mr Laws. In any event, we agree with the broadcaster that Mr Laws’ comments, while disrespectful, could not be seen as encouraging discrimination against or denigration of any section of the community.

[45]   Accordingly, we decline to uphold the Standard 7 complaint.

Standard 8 (responsible programming)

[46]   Standard 8 requires broadcasters to ensure that programme information and content is socially responsible.

[47]   Talkback with Michael Laws is targeted at an adult audience who would have appreciated the fact that Mr Laws was taking a controversial and extreme position to be deliberately provocative and to generate discussion.

[48]   In our view, the programme did not contain any material that could be considered to be “socially irresponsible” and we decline to uphold the Standard 8 complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
27 April 2010

Appendix

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

1.           Cathryn Mazer’s formal complaint – 7 December 2009
2.          RadioWorks’ response to the formal complaint – 2 February 2010
3.          Ms Mazer’s referral to the Authority – 15 February 2010
4.          RadioWorks’ response to the Authority – 2 March 2010

¹Decision No. 2005-083