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 made comments about the complainant in relation to discussion about whether tobacco should be phased out as a legal product – allegedly in breach of privacy, inaccurate and unfair

Findings
Standard 5 (accuracy) – subsumed into consideration of Standard 6

Standard 6 (fairness) – not necessary to inform the complainant he would be referred to on the programme – host misrepresented complainant's views when he told listeners that the complainant believes smoking is a “Pakeha plot to kill Māori” and tells his clients that –complainant’s personal and professional reputation affected – unfair – upheld

Standard 3 (privacy) – complainant was identifiable – complainant did not have reasonable expectation email correspondence would remain private when aware of the host’s media role – no private facts disclosed – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   One topic of discussion during Talkback with Michael Laws, broadcast on Radio Live between 9am and 12pm on Thursday 24 September 2009, was MP Hone Harawira’s opinion that tobacco should be phased out as a legal product. During the programme, Mr Laws made the following comments:

Yesterday I gave you the comment of, you know, the slightly racist Māori educator by the name of Boyd who works for the Counties Manukau District Health Board who believes that it’s all a white plot...
...
One of the things I’d love a Māori caller to tell me this morning is why do Māori smoke? And why is the message not getting through? And would it work with you if you do what Boyd at the Counties Manukau District Health Board clearly does, and he tells clients that it’s all a Pakeha plot to kill Māori. Would that stop you?
...
Well having said that yet again, and this so-called smoking educator in the Counties Manukau Health Board is a classic example. I think a lot of them try and shift responsibility again. And maybe, you know what I mean, so, it’s not your fault you’re smoking, it’s a white man’s plot.
...
I don’t know, I mean that’s what I’m intrigued by, I think I got an inkling into the failure of the system with this bizarre email correspondence I had with this guy called Boyd who works as a Māori smoking educator for the Counties Manukau District Health Board, and which during that correspondence it was clear that he regarded the cause of Māori smoking to essentially be white genocidal cigarette companies out to basically kill Māori. And I thought, if he is giving that message to Māori, it means you’re not accepting personal responsibility so therefore, you know what I mean? You don’t have to confront the fact that you’ve got a problem. It’s somebody else’s fault. ...In this particular case though, they’re being exploited by the white man.
...
...The message isn’t getting through. And I actually posited on this view that one of the reasons why is because I don’t think they actually put individual responsibility on smokers to cure themselves. And I gave you the example of the email correspondence I’ve had with a public health educator who suggests at the end of the day that it’s all a white man’s plot.

Complaint

[2]   Boyd Broughton made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that the host’s comments breached standards relating to privacy, accuracy and fairness.

[3]   The complainant argued that the accuracy standard was breached because Mr Laws’ comments did not reflect Mr Broughton’s email correspondence with the host, which he attached. He maintained that he had never said explicitly or implicitly in the course of his job that tobacco was a “white man’s plot to kill Māori”. The beginning of the email correspondence was as follows:

Laws:          Stick to trying to get Māori to quit smoking, will you? Not exactly a sparkling 
                   success story, is it?

Broughton:  Not really. Not when Pakeha continue to allow it in the country and make profits
                  from it, both the government AND industry, but I know you’ll have another
                  excuse for your behaviours...

[4]   Mr Broughton considered that the broadcast was unfair because “Michael Laws has displayed a complete distortion of the original event and the overall views expressed [in the email correspondence]”, and he had not been informed that he would be referred to in the programme.

[5]   Finally, the complainant contended that the disclosure of his name and workplace without his consent breached his privacy. He said he had not contacted Mr Laws as part of his radio work and he had not given permission for the disclosure of any personal information on air.

[6]   Mr Broughton requested a formal apology in writing from Radio Live and Michael Laws, as well as a public apology in print and on air.

Standards

[7]   RadioWorks assessed the complaint under Standards 3, 5 and 6 and guidelines 5a and 5b of the Radio Code of Broadcasting Practice, and privacy principles 1 and 4 of the Authority’s Privacy Principles. They provide:

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.

Privacy principles

1.   It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

4.   The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable individual, in circumstances where the disclosure is highly offensive to an objective reasonable person.

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.

Broadcaster's Response to the Complainant

[8]   RadioWorks stated that it must first consider whether the person whose privacy had allegedly been interfered with was identifiable in the broadcast. It considered that there was “no issue” with identification in this instance.

[9]   The next issue, it said, was whether the broadcast disclosed private facts about Mr Broughton or whether the disclosure of his name and occupation could be regarded as highly offensive to an objective reasonable person. RadioWorks argued that nothing revealed in the broadcast was a private fact. It said:

Whether or not the communications were made by yourself in a personal or professional capacity, the opinion you expressed to Michael Laws was a political one and could not reasonably be considered a private fact, especially in the forum and manner in which it was disclosed (i.e. to [Mr] Laws who is a columnist, local politician and talkback host).

[10]   The broadcaster argued that a confidentiality disclaimer in Te Reo Māori in an email to a person who does not speak Māori was not sufficient to create an expectation that the information was private and confidential.

[11]   RadioWorks considered that the disclosure of the complainant’s name and occupation was not offensive given that the disclosure related to and was an interpretation of his correspondence with the host.

[12]   The broadcaster therefore declined to uphold the complaint under Standard 3 (privacy).

[13]   Turning to accuracy, RadioWorks argued that Mr Laws’ remarks about Mr Broughton clearly fell within guideline 5a to the accuracy standard, which states that the standard does not apply to analysis, comment or opinion. It contended that the remarks were an interpretation of the comments made by the complainant in one of his emails, and that whether or not Mr Broughton agreed with that interpretation, the remarks were “fair comment in this context”. Further, the broadcaster considered that most regular listeners were “aware of the rhetoric that [Mr] Laws uses in his show and would interpret the comments as such”.

[14]   RadioWorks maintained that the host’s comments did not fall under guideline 5b, which states that talkback radio will not usually be subject to the accuracy standard, unless a presenter makes an unqualified statement of fact. It said, “an interpretation of a person’s political or social views based on the exchange that occurred between [the complainant] and the announcer cannot be construed as factual content that can be proven inaccurate or otherwise”.

[15]   The broadcaster therefore concluded that Standard 5 (accuracy) did not apply and that the complainant’s concerns would be better dealt with under the fairness standard.

[16]   RadioWorks said it had considered the complainant’s concern that he had not been informed of his participation prior to the broadcast “against the fact that the email exchange occurred in an open and frank manner, where the two parties were clearly aware of each other’s occupation and view on the issue at hand”. It was of the view that Mr Broughton had offered his “personal views on specific health issues to a well-known talkback announcer in a provocative manner and equally [Mr] Laws engaged [him] in a similar tone”. RadioWorks noted that Mr Laws had not elicited the information from Mr Broughton by way of any misrepresentation.

[17]   The broadcaster considered that “a reasonable person would not normally engage in such an exchange without explicitly qualifying the remarks, or without knowledge that they could potentially be referred to by a talkback host with a controversial and outspoken reputation”. RadioWorks accepted that Mr Broughton had not been informed of his “participation” in the programme. However, taking into account its view that the remarks did not constitute the disclosure of private facts and that there was no reasonable expectation of confidentiality, RadioWorks concluded that Mr Broughton had not been treated unfairly. It declined to uphold the Standard 6 complaint.

Referral to the Authority

[18]   Dissatisfied with RadioWorks’ response, Mr Broughton referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Authority's Determination

[19]   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 3 (privacy)

[20]   The complainant contended that the disclosure of his name and workplace without his consent breached his privacy.

[21]   The Authority notes that Mr Broughton nominated privacy principle 4 in his complaint. It has stated on a number of occasions that privacy principle 4 was developed to prevent the broadcast of a person’s details in circumstances where they are disclosed for the purposes of encouraging harassment of that person by members of the public (see, for example, De Villiers and TVNZ,¹South Pacific Pictures Ltd and TVWorks ²). In this case, the host’s references to Mr Broughton were incidental to the discussion and did not encourage listeners to harass him.

[22]   Accordingly, in the Authority's view, Mr Broughton’s complaint is appropriately addressed under privacy principle 1, which states:

It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[23]   When the Authority deals with a complaint that an individual's privacy has been breached, it must first consider whether the individual was identifiable in the broadcast. As the complainant’s first name and place of work were disclosed in the broadcast, it concludes that Mr Broughton was identifiable.

[24]   Second, the Authority must determine whether the broadcast disclosed private facts about the complainant. Mr Laws disclosed Mr Broughton’s first name, his occupation and place of work, and the fact he had engaged in email correspondence with the host. In the Authority’s view, as an employee of a District Health Board, Mr Broughton did not have a reasonable expectation that his name or occupation would remain private. Further, Mr Broughton willingly engaged with a well-known radio host and, even though his emails contained a confidentiality disclaimer in Te Reo Māori, the Authority considers that Mr Broughton did not have a reasonable expectation that the contents of his email correspondence would remain private.

[25]   Having found that no private facts about Mr Broughton were disclosed in the broadcast, the Authority declines to uphold the privacy complaint.

Standard 6 (fairness)

[26]   Standard 6 requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme. Mr Broughton considered that the broadcast was unfair because the host distorted the views he gave in the email correspondence, and he had not been informed that he would be referred to in the programme.

[27]   At the outset, the Authority notes that Mr Broughton willingly engaged in a provocative exchange with a well-known politician and media personality. However, he was also entitled to expect that his views would be accurately and fairly represented by Mr Laws.

[28]   The Authority notes that in his email correspondence with Mr Laws, Mr Broughton stated that “Pakeha continue to allow [smoking] in the country and make profits from it, both the government AND industry, but I know you’ll have another excuse for your behaviours...” (see paragraph [3]).

[29]   During the broadcast, Mr Laws told listeners that Mr Broughton:

• “regarded the cause of Māori smoking to essentially be white genocidal cigarette companies out to basically kill Māori”; and
• “tells clients that it’s all a Pakeha plot to kill Māori”.

[30]   The Authority considers that the statements made by Mr Laws misrepresented the content of the email correspondence, with respect to Mr Broughton’s views and the conduct of his job.  Based only on Mr Broughton’s statement that “Pakeha continue to allow [smoking] in the country and make profits from it”, Mr Laws told his listeners that Mr Broughton believes, and tells his clients, that smoking is a “Pakeha plot to kill Māori”, an assertion he made several times during the course of his programme.  The Authority is firm in its view that such blatant misrepresentation cannot be regarded as “fair comment”, as argued by the broadcaster.

[31]   In the Authority’s view, the host’s comments unfairly represented Mr Broughton’s views and professional conduct, and had the potential to negatively affect his personal and professional reputation. It therefore finds that Mr Broughton was treated unfairly.

[32]   Having reached this conclusion, the Authority must consider whether to uphold the complaint as a breach of Standard 6 (fairness).

[33]   The Authority acknowledges that upholding the Standard 6 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Commerce Commission and TVWorks³ the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:

One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

[34]   The Authority must now consider whether it would be a reasonable and proportionate limit on RadioWorks’ freedom of expression to uphold a breach of Standard 6 on this occasion. It has found above that Mr Broughton was treated unfairly because his views were misrepresented in a way that portrayed him in an unfairly negative light.

[35]   Upholding a breach of the fairness standard on this occasion would remind broadcasters to ensure that they deal with people referred to in a programme in a just and fair manner. In this respect, upholding this complaint clearly promotes the objective of Standard 6 (as outlined in paragraph [32] above).

[36]   In these circumstances, the Authority finds that upholding this part of the complaint places a justified and reasonable limit on RadioWorks’ freedom of expression. Accordingly, it upholds the Standard 6 complaint.

[37]   The Authority notes that Mr Broughton also complained that he was treated unfairly because he was not informed that he would be referred to in the broadcast. In the Authority’s view, Mr Laws’ references to the complainant were incidental to the programme, which discussed several topics over three hours. It was not necessary, in the interests of fairness, to alert Mr Broughton that he would be mentioned in the broadcast because his views on the general topic were not required. The Authority therefore finds that the broadcaster did not treat the complainant unfairly in this respect.

Standard 5 (accuracy)

[38]   The Authority considers that the essence of Mr Broughton’s complaint has been appropriately and adequately dealt with above in its consideration of the fairness standard. Accordingly, it subsumes the Standard 5 complaint into its consideration of Standard 6. 

For the above reasons the Authority upholds the complaint that the broadcast by RadioWorks Ltd of Talkback with Michael Laws on 24 September 2009 breached Standard 6 of the Radio Code of Broadcasting Practice.

[39]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to do so on this occasion. The Authority considers that the publication of the decision is sufficient to remedy the unfair statements made by the host in relation to the email correspondence, and to remind broadcasters that talkback hosts must fairly represent the views of people referred to in programmes.

Signed for and on behalf of the Authority

Peter Radich
Chair
15 February 2010

Appendix

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

1.           Boyd Broughton’s formal complaint – 24 September 2009
2.          RadioWorks’ response to the complaint – 6 November 2009
3.          Correspondence between Mr Broughton and RadioWorks – 6 November 2009
4.          Mr Broughton’s referral to the Authority – 10 November 2009
5.          RadioWorks’ response to the Authority – 7 December 2009

¹Decision No. 2008-089

²Decision No. 2008-017

³Decision No. 2008-014