Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Newstalk ZB – afternoon host made comments about Green Party MP Keith Locke – allegedly in breach of good taste and decency, and fairness standards
Standard 6 (fairness) – viewers would have realised comments were host’s and callers’ interpretation of Mr Locke’s stance – public figures are open to criticism – not upheld
Standard 1 (good taste and decency) – subsumed into consideration of Standard 6
This headnote does not form part of the decision.
 During Newstalk ZB’s afternoon show, broadcast between 1pm and 4pm on 5 January 2009, the host started a discussion about Green Party MP Keith Locke, saying:
Keith Locke’s another one. He’s an apologist for terrorism. It’s people like him who allow terrorism to thrive with their stance. I don’t know why Keith Locke stays living in the West. Why doesn’t he just move out and move to one of those countries whose people he sympathises with so much...
 The following exchange then took place between the host and a listener who had phoned the station:
Caller: I think Keith Locke should go and join the terrorists. It sounds like he wants to be
a terrorist himself.
Host: ...Was he one of the ones who advocated – do you remember in Iraq they had the
Caller: Yes, that’s right. Well, you know it wouldn’t really be any great loss if he took a
bullet in the head would it?
Host: We don’t like to think of anybody taking a bullet in the head... unless they’re
somebody like some of those real hard core criminals... I don’t think there’s
anything in the head for the bullet to lodge in.
Caller: Might be a waste you think?
Host: I reckon. I reckon it would be.
 Another caller phoned in and initiated a conversation with the host about how Mr Locke was “still a card-carrying member, like his mother was, of the Soviet Communist Party”. The following exchange took place:
Host: Still a card-carrying member, is he?
Caller: Yeah. That’s where his anti-Americanism comes from.
Host: Well it doesn’t surprise me.
Caller: Anything you can do or say to get at America, he does.
Host: So he’s green on the outside and red in the middle – he’s a true watermelon.
Caller: He is. You’re right onto it.
Host: ...Keith Locke is on the side of anything that’s anti-America. He’s on the side of
terrorism. That’s the way I look at it, and I can’t look at it any other way because
every time we have something like this Keith Locke sympathises with those who
do the bombing and the head-cutting.
 A listener then phoned the station and said that, “Keith Locke is, as I see it, sponsoring the idea, if not sponsoring physically, the entry of terrorists in New Zealand. That’s treason, is it not?” The host replied, “Well, I think so. We all know what a terrorist is. ... He knows full well what it is too, but these people who don’t seem to mind bringing Guantanamo Bay inmates into New Zealand will be importing terrorists”.
 The Green Party made a formal complaint to The Radio Network Ltd (TRN), the broadcaster, alleging that the programme had breached standards of good taste and decency and denigrated Mr Locke. It attached an unofficial transcript of the segments of the broadcast it considered had breached broadcasting standards.
 The complainant argued that the programme included “repeated predominantly personal attacks” against Mr Locke. His political positions were distorted, it said, and the programme inaccurately portrayed his personal beliefs – for example, he was portrayed as an apologist for terrorism and a communist.
 The Green Party then referred to a comment made by a caller that “it wouldn’t really be any great loss if [Keith Locke] took a bullet in the head”, and the host’s response. It said that “the graphic suggestion of violence by the caller was first met with ‘ha ha’, followed by a derogatory and violent comment about the prospect of a bullet lodging in Mr Locke’s head”. The host’s comment that it would be appropriate for “hard core” criminals to be attacked in this way also breached broadcasting standards, the Green Party argued. It said the context for these comments was a “highly charged and malicious personal attack that impugned Mr Locke’s character and asserted beliefs over a significant period of time during the broadcast”.
 TRN assessed the complaint under Standard 6 and guideline 6a of the Radio Code of Broadcasting Practice, which provide:
Standard 6 Fairness
Broadcasters should deal fairly with any person or organisation taking part or referred to.
A consideration of what is fair will depend upon the genre of the programme (e.g. talk/talkback radio, or factual, dramatic, comedic and satirical programmes).
 TRN considered that the complaint would be better dealt with under Standard 6 than Standard 1 (good taste and decency).
 Referring to the exchange between a caller and the host, TRN said that the caller made “what some may describe as a callous comment” about Mr Locke. However, it said, this was in the context of a conversation about Mr Locke using himself as a human shield in Iraq. TRN argued that “whatever connotation you put on the host’s reply to ‘taking a bullet in the head’, he did not agree with what the caller said”. It considered it was “banter of a light-hearted nature without any degree of seriousness”.
 The broadcaster maintained that, in the context of the robust arena of talkback, “this exchange represented opinion, opposing in a metaphorical way, the pro-Palestinian stance of Keith Locke”. Mr Locke was a controversial political figure, it said, who takes a stance that appeared to some people to support those involved in terrorism. TRN considered that, in talkback, Mr Locke should expect strong opposition to his beliefs.
 In those circumstances, TRN concluded that guideline 6a and Standard 6 had not been breached.
 Dissatisfied with TRN’s response, the Green Party referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. It noted TRN’s reference to “Keith Locke using himself as a human shield in Iraq”, and maintained that Mr Locke “was not a human shield in Iraq; nor did he ever offer himself to be a human shield in Iraq”.
 TRN clarified that in the broadcast the host asked, “was he one who advocated the use of human shields?” It said there was no implication of Mr Locke either “using himself” or “offering himself” as a human shield, and apologised for the misinterpretation conveyed in its previous response.
 The Green Party made further submissions in response to the broadcaster’s decision. It was happy for the complaint to proceed under Standards 1 and 6.
 The complainant considered that in the context of the whole three-hour programme, the conversation about Mr Locke “taking a bullet in the head” could not be dismissed as “banter of a light-hearted nature without any degree of seriousness”. It pointed out that Mr Locke had not advocated people using themselves as human shields; although he respected people who “put themselves out in the cause of peace”, he did not advocate people putting themselves in harm’s way, he said. The host’s reference in the programme to his position on this was one of many errors, the complainant argued.
 The Green Party referred to a number of comments made by the host about Mr Locke and terrorism. It maintained that Mr Locke had repeatedly spoken out against terrorism during his time in Parliament, and had “never supported it”. Around the time of the broadcast, Mr Locke was repeatedly criticising Hamas for firing rockets into Israel. The complainant said that Newstalk ZB was also well aware of Mr Locke’s position on whether New Zealand should take any prisoners from Guantanamo Bay, because the host had used a direct quote from an interview he had with TVNZ on that issue. The Green Party noted that, in an interview on TVNZ 7 on 3 January 2009, Mr Locke had “absolutely opposed” New Zealand taking any terrorists from Guantanamo Bay, and had also pointed out that many people detained there had no connection with terrorism.
 The complainant then noted comments made on the programme between 2pm and 3pm to the effect that Mr Locke was a “card carrying member like his mother of the Soviet Communist Party”. It said that Mr Locke had never been a member of the Communist Party or any Soviet-aligned party, and his mother left the Party in 1956.
 The Green Party maintained that the host had attached “absurd and prejudicial labels to [Mr Locke], like ‘anti-Americanism’, knowing full well that millions of Americans (including the American Green Party) espouse exactly the same policies” as he did. Later, the host endorsed a caller’s suggestion that Mr Locke was guilty of “treason”, the complainant said.
 The complainant concluded that many of the host’s comments were “clearly inaccurate and slanderous, and certainly unfair” to Mr Locke, and this “repeated denigration” had breached standards of good taste and decency.
 TRN said it stood by its decision to deal with the complaint under Standard 6. It responded to the points made by the complainant.
 First, the broadcaster maintained its argument that the comment about “taking a bullet in the head” was light-hearted banter, and further the host did not agree with the comment. Second, it confirmed that the “human shield” comment was a question, not a fact. Third, TRN argued that Mr Locke could not deny that many of his public positions were supportive of countries and organisations at odds with America. Therefore, it considered comments made by the host and callers were their opinion based on those positions. Fourth, TRN noted that Mr Locke had tried to justify his position on why New Zealand should allow Guantanamo Bay prisoners into New Zealand. He was entitled to that position, it said, but had to expect others to hold opposing views, as the host and callers expressed. Fifth, the broadcaster maintained that “card-carrying member of the Communist party” was “a metaphor for those opposing things American” and was not conveyed as a fact. Finally, TRN argued that the “treason” comment was an idea, not a fact.
 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 6 requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme. The complainant argued that the programme was unfair because it included “repeated predominantly personal attacks” against Mr Locke, and misrepresented his political positions and personal beliefs.
 The Authority has previously described talkback radio as a “robust” environment because it typically involves a free and frank exchange of ideas (e.g. Decision Nos. 2007-006 and 2006-088). It must be recognised that, for the most part, talkback programmes do not explore serious issues in a factual and authoritative way. They are forums which allow the public to air their views on a range of issues and events, generally not places for objective discussion. Many talkback shows could aptly be described as entertainment programmes, where a host adopts a deliberately provocative stance on an issue and invites callers to express their own opinions, whether they be ill-informed, biased, hyperbolic, or otherwise. While broadcasters will censor bad language or content and attempt to broadcast a range of views if possible, they do not have a responsibility to monitor the quality of callers’ information. Guideline 6d to the fairness standard, which states that broadcasters should respect the right of individuals to express their own opinions, reflects the right to freedom of expression protected by the New Zealand Bill of Rights Act 1990. On this point, the United States Supreme Court has stated in memorable fashion that freedom of expression must be given “breathing space to survive”.1
 Listeners to the “entertainment” variety of talkback programme would be well aware that the hosts and callers are not a serious or credible source of factual information. In the Authority’s view, the talkback programme complained about on this occasion falls squarely into this category. With that in mind, it proceeds to consider the fairness complaint.
 In Decision No. 2008-108, regarding a complaint that a radio host unfairly scrutinised the actions of a public figure, the Authority observed that the fairness standard:
... does not prevent criticism of public figures. Indeed, it is an essential element of free speech that even the most trenchant criticism of public figures be allowed. ...The question for the Authority is whether that criticism overstepped the boundaries of fairness, that is, whether it strayed into abusively personal territory.
 As a publicly elected MP who has taken what might be regarded as controversial or unpopular stances on a number of issues, Mr Locke should have expected that there would be people who would disagree with his views and be critical of him. With regard to comments such as that Mr Locke was “anti-American” and “an apologist for terrorism”, the Authority considers that the host and callers were expressing their personal interpretations of the positions he had taken throughout his time as an MP. In the Authority's view, listeners would have understood that the host and callers were expressing personal opinions because they couched their remarks in terms such as “I think” and “as I see it”. For example:
Caller: I think Keith Locke should go and join the terrorists...
Host: I think Keith Locke is an apologist for terrorism...
Host: Keith Locke is on the side of anything that’s anti-America. He’s on the side of
terrorism. That’s the way I look at it...
Caller: Keith Locke is, as I see it, sponsoring the idea, if not sponsoring physically, the
entry of terrorists in New Zealand...
 The Authority is of the view that, while some of the comments were ill-informed, they criticised Mr Locke’s political stance rather than being abusive of or malicious towards Mr Locke personally.
 The complainant was particularly concerned with a caller’s remark that “it wouldn’t really be any great loss if [Mr Locke] took a bullet in the head”. In the Authority’s view, this statement was clearly said for effect. It was hyperbolic and provocative, and the Authority notes that the host did not encourage or support the comment, saying, “We don’t like to think of anybody taking a bullet in the head” and then changing the topic of conversation.
 Overall, the Authority concludes that reasonable listeners would not have been left with an unfairly negative impression of Mr Locke’s character or conduct. Accordingly, it declines to uphold the Standard 6 complaint.
 In the Authority’s view, the complainant’s concerns have been adequately and appropriately addressed in its consideration of fairness above. Accordingly, it subsumes its consideration of good taste and decency into its consideration of Standard 6.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
29 June 2009
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Green Party of Aotearoa New Zealand’s formal complaint – 28 January 2009
2. TRN’s response to the complaint – 25 February 2009
3. Green Party’s referral to the Authority – 24 March 2009
4. TRN’s response to the Authority – 2 April 2009
5. Green Party’s final comment – 17 April 2009
6. TRN’s final comment – 30 April 2009
1N. A. A. C. P. v. Button, 371 U.S. 415, 433