BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Michael Laws talkback – discussed the release of a report by the Children’s Commissioner and Barnados which stated a quarter of a million children in New Zealand were living below the poverty line – host made critical comments about the Children’s Commissioner and the report – allegedly unfair and failed to present significant viewpoints

Findings
Standard 4 (controversial issues) – listeners would not expect a range of balanced views from Michael Laws’ talkback – no discussion of a controversial issue of public importance – not upheld

Standard 6 (fairness) – host’s criticisms not unfair in robust talkback environment – important principle of freedom of speech that public officials are open to criticism – not unfair to deny complainant’s request to appear on air during unrelated programme – not upheld

This headnote does not form part of the decision.

Broadcast

[1] During a Radio Live talkback programme, broadcast between 9am and 12pm on 8 August 2008, the host Michael Laws discussed the release of a report by the Children’s Commissioner, Dr Cindy Kiro, and Barnados which concluded that a quarter of a million children in New Zealand were living below the poverty line. Throughout the three-hour programme, the host and a number of callers made comments critical of the report and the Children’s Commissioner.

[2] The host informed listeners at the end of the show that:

...we contacted the Office of the Children’s Commissioner this morning to alert them to the fact that this was being discussed. Interestingly they had already been alerted and were listening to the programme this morning so they’ve had ample opportunity to come on air and give their side of the story.

Complaint

[3] Through her lawyer, the Children’s Commissioner, Dr Cindy Kiro, made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that the broadcast was unbalanced and unfair to her.

The programme

[4] Dr Kiro argued that the programme “often cast aspersions on [her] competence” and that she was personally mentioned more than 50 times during the programme. The thrust of the programme, she said, emerged from the host’s introductory remarks. The essence of the view advanced by the host over three hours was that “Dr Kiro is seeking to blame society for child poverty and ‘throw money’ at the problem instead of sheeting home responsibility to bad parents, and particularly Māori parents”.

[5] The complainant argued that during the show, Mr Laws contended that:

• The report was “a remarkable, remarkable cop out by Children’s Commissioner Cindy Kiro”, “academically lazy”, “crap research”, “an almost subversive report”.
• The report contained “specious, anti-academic blame-shifting”, “bureaucratic sophistry”.
• The report “mostly consists of... giving beneficiaries more money”.
• The report “comes to one conclusion... people on benefits need more money”.
• The poverty line drawn in the report was “arbitrary”.
• The real problem was “useless parents” and “sick” Māori and Pacific Islands culture.
• Cindy Kiro, “from Māori extraction”, was an apologist for the Māori community’s failure to take responsibility for their problems: “And really, can I just say this to Cindy Kiro because I know you’re listening this morning Cindy, or at least your office is – stop being an apologist for dropkick mums and deadbeat dads”.
• Dr Kiro “wouldn’t have a clue what real poverty looked like”.
• Dr Kiro “doesn’t understand” the problems.
• The problem “is not poverty of money, it’s poverty of mind”, and “it’s the cycle of uselessness, not the cycle of poverty”.
• “This is the point that Cindy Kiro simply has refused to address: how are you going to try and change parents, or a parent, who has no aspiration for themselves, let alone their children, into a fully functioning member of the human race who advantages their child no matter that they are not rich?”
• Parents, and especially Māori parents, would be likely to “piss up against the wall” any increased social welfare support they are given.

[6] The complainant noted that a former Children’s Commissioner featured in the programme as the first caller, and that the host had “harked back” to his comments several times later in the programme. She contended that he had “made a series of serious and controversial comments and allegations directed specifically at [her]”, including:

• “...my blood boils when I hear suddenly Cindy Kiro, after four or five years, springing into life with all of this font of knowledge about what would be best for our children when she’s had so long to do something and she’s said nothing”.
• Dr Kiro “can’t dine out...forever” on the 1992 welfare cuts.
• Dr Kiro is “currying up favour to the National Party who she thinks might become the next government, and she’s wanting to be seen to be criticising the current infrastructure because of so many children being in a poor state”.
• “For goodness’ sake, why doesn’t she just focus on what we need for children? They need a loving, kind adult, hopefully a parent, but not necessarily, in charge of the child and ensuring that they get three meals a day, that they are kept warm at night, that they get off to school and there’s somebody at home when they get home at night. It’s pretty basic stuff”.
• “Why doesn’t she advocate some parenting courses because some of these young parents do need a bit of help”.

[7] Dr Kiro also noted the comments that the radio host made at the end of the programme (see paragraph [2]).

Opportunity to respond

[8] The complainant said that a producer from Radio Live had called her office at about 9.40am on the day of the broadcast to advise that the programme was discussing the Children’s Commissioner’s Office. The producer said that she could call Radio Live if she wished but emphasised that it was not an invitation to go on air. Another staff member had been phoned by Radio Live at 9.30am so was already aware that the programme was discussing the Children’s Commissioner.

[9] Dr Kiro said that she was not able to listen to most of Radio Live that morning because she was being interviewed on another radio station at 9am and then spoke to another journalist before another engagement late in the morning. While she was made aware that the programme was criticising her, she said, she had little time to listen to it and knew that no one in her office had heard the first half-hour of the programme.

[10] The complainant said that she instructed her staff to obtain a copy of the programme so that she could ascertain what criticisms had been advanced. This was because she intended to respond to them the following week, she said. On Tuesday 12 August at 9am Dr Kiro called Radio Live and asked to be put on air so she could respond to the allegations made during the Friday programme. She was told by the person that answered her call, after checking with the programme host, that she would not be allowed on air because the programme was on different themes, and that she should have responded during Friday’s programme. Dr Kiro explained that this was the first chance she had had to respond, and asked whether she could go on air later in the week. She was told again that each day discussed a different topic and that the topic she wished to discuss was no longer on Radio Live’s agenda.

[11] The complainant then wrote to RadioWorks’ legal counsel explaining that she had been busy at the time of the programme and requesting an on-air opportunity to respond to the criticisms as a matter of fairness and balance. She specified times when she would be available. RadioWorks denied Dr Kiro the opportunity to appear on the programme. She attached email correspondence to this effect.

Balance and Fairness

[12] Dr Kiro said that she was surprised that Radio Live did not accept that it had an obligation to allow her to respond to the criticisms made during the programme. The criticisms were strident, she said, and she was repeatedly criticised by name. The complainant argued that the criticisms suggested, among other things, that she was “incompetent, biased toward her race, out-of-touch, wasteful, deluded, lazy, and politically motivated”. “Simple fairness dictates she be given a right of reply”, the complainant wrote. In addition, Dr Kiro believed that many of the criticisms were based on a misleading characterisation of the report which was the subject of the programme.

[13] The complainant argued that it was plain that the host was raising a controversial issue of public importance. She considered this was, in particular, whether Dr Kiro and the report on child poverty were seeking to blame society for child poverty and were ineffectively “throwing money” at the problem, and whether they should instead be sheeting home responsibility to bad parents, and particularly Māori parents.

[14] Other controversial issues that were raised, the complainant argued, included whether the report was sound, whether Dr Kiro was an apologist for poor parenting, whether she understood poverty, and whether her ethnicity affected her job performance.

[15] The complainant maintained that Roger McLay, a former Children’s Commissioner, had raised issues about whether she had “during her tenure said and done nothing about what would be best for children, whether she is ducking responsibility for children’s welfare by blaming benefit cuts, whether her motivation is political, and whether she doesn’t focus on children’s needs”. Dr Kiro said that she was not suggesting she be given a right of reply to every allegation made by every caller. However, she noted that this was the first call on the programme, that Mr McLay was “warmly supported” by the host, and that his allegations were “serious and in many points plainly wrong”, and were repeated throughout the programme. Dr Kiro concluded that:

The issues being discussed, then, contained the two elements that the BSA has emphasised most call for balance: personal attacks and discussions of important matters of policy. [I] was obviously the appropriate person to respond to both.

[16] Dr Kiro considered that the broadcaster had not made reasonable attempts to achieve balance and fairness. Her office was contacted well after the programme was underway, she said, and although she was told she could phone in, it was emphasised that she was not being invited to appear on air. Her morning was busy, and it was entirely reasonable for her to ascertain what criticisms had been broadcast before offering her response, she said. The complainant noted that the broadcaster’s obligation was to provide the opportunity for comment within the period of current interest. That period was plainly still open the following week, she wrote.

[17] With regard to Radio Live’s argument that “its programmes have themes, and this precludes any offer of balance”, Dr Kiro noted that:

• There was nothing to stop particular themes being revisited; “indeed this happens relatively commonly on Michael Laws’ show”.
• There was nothing to stop the broadcast of an interview during a programme that dealt with another theme.
• Mr Laws indicated on 8 August that he would in future be revisiting the theme of the Children’s Commissioner and the report.
• In any event, the “themed” nature of a programme was no excuse for not providing reasonable balance.
• Mr Laws had previously, and inaccurately, criticised Dr Kiro for refusing to appear on his show.
• Dr Kiro offered to be flexible and appear on air on a day that suited Radio Live.

Dr Kiro’s response

[18] Dr Kiro outlined how she would have responded to the allegations about her personally and the report generally, given the opportunity. In response to Mr McLay, she said that she wanted to tell listeners that, in fact:

• She had frequently spoken out and taken action against child poverty and abuse.
• Far from “dining out” on the welfare cuts, this was the first time she had mentioned them publicly.
• She had advocated parenting courses.
• In almost every speech she gave, she emphasised the primary need for loving parents.
• The very report being discussed on the programme pointed to evidence that some parents could not afford to provide three meals and warm shelter for their children, and was addressed to providing support for that “basic stuff”.
• She could demonstrate that her entire focus had been on what we need for children.

[19] In response to the main themes addressed by Mr Laws, Dr Kiro said that she would have liked to tell listeners that, among other things:

• The report was commissioned by Barnardos and the Children’s Commissioner, but was written by experienced and well-qualified experts.
• The report’s main conclusion was that the best pathway out of poverty was helping parents into full-time paid work.
• The report contained a range of recommendations aimed at helping parents into work, such as free childhood care, support for teen parents’ education, extension of paid parental leave, and provision of rent and benefit incentives to work.
• The report also contained a range of recommendations aimed at directly helping children, such as improving immunisation, expanding free medical visits for children, and reading recovery programmes.
• The report referred to evidence that low benefit levels were compromising the health, nutrition and educational and social development of young children, particularly in solo parent families.
• Dr Kiro and the report challenged the stereotype that beneficiary parents were wasteful. The report examined the circumstances of beneficiaries raising children and found that many were facing disabilities or chronic illnesses, or where one parent is on a benefit in order to devote themselves to raising the children. The report suggested that many simply need adequate support to raise their children in a decent way.
• Dr Kiro herself grew up in poverty.
• She has often spoken out against bad parenting.
• She has often called on the Māori community to take greater responsibility for their problems; equally she has pointed out that the problems of child abuse and poverty are not unique to Māori, and are not simply caused by “dropkick mums and deadbeat dads”.
• She has promoted supporting parents to care for their children better.

[20] Dr Kiro considered that these points demonstrated that her perspective was relevant and vital to the issues and criticisms raised in the programme, as well as demonstrating that many of the criticisms advanced were misleading or unfair. She acknowledged that Mr Laws would be free to challenge her views in the course of an interview, and to raise other points. However, she maintained that refusing to have her on Radio Live altogether breached standards of fairness and balance.

Remedy

[21] The complainant sought recognition that the 8 August programme and its aftermath breached standards of fairness and balance. She considered that to redress those breaches she should be given the opportunity to participate in an on-air interview with Mr Laws as soon as possible to give her a fair chance to respond to the criticisms made and to provide balancing information on the issues raised. Dr Kiro emphasised that Mr Laws refused to allow her on the show when she sought to provide a response, and that if reference was made to her failure to contact Radio Live on the Friday her reasons for not doing so should be made clear.

Standards

[22] Dr Kiro nominated Standards 4 and 6 of the Radio Code of Broadcasting Practice in her complaint. These provide:

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or 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.

Standard 6 Fairness

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

Broadcaster's Response to the Complainant

Standard 4 (controversial issues – viewpoints)

[23] RadioWorks argued that Standard 4 did not apply because Radio Live on 8 August did not discuss a controversial issue of public importance. An issue of controversy, it said, was one which has “topical currency and excites conflicting opinion”, and there must be an “ongoing public debate about the issue” being discussed. It noted that the Authority said in Decision No. 2007-123 that even where the issue addressed was of importance to the public, the way in which the topic was approached by the participants must itself amount to a discussion of a controversial issue.

[24] While it accepted that the complaint and Mr Laws’ comments were very important to Dr Kiro, the broadcaster concluded that the issues raised in the programme did not reach the threshold of being controversial or of public importance. It considered that the programme was a talkback discussion which consisted of “a topic selected to elicit viewpoints on a report just released”.

[25] The broadcaster considered that the points raised by Dr Kiro with regard to balance were really issues of fairness and so more appropriately dealt with under Standard 6.

[26] Nevertheless, even if the programme did discuss a controversial issue of public importance, RadioWorks argued that the programme did not breach the balance standard. Radio Live was well-known for providing “a robust talkback format”, the broadcaster said, and “many of its hosts are renowned for consistently being outspoken, opinionated and provocative and, in doing so, create a stimulating and entertaining environment for listeners”.

[27] Further, RadioWorks maintained that:

Radio Live has a niche audience which is overwhelmingly adult, astute and abundantly capable of independent thought – particularly when it comes to evaluating comments made by Radio Live hosts, such as Michael Laws, who have reputations for being provocative – and for taking no prisoners.

[28] In any event, the broadcaster argued, reasonable efforts were made to provide an opportunity for the Commissioner or her office to comment. The call to her office, it said, in the context of this programme, “easily equated (in our view) to reasonable efforts made and opportunities given” to present significant points of view. RadioWorks maintained that “it was a clear and direct invitation to the Commissioner’s office to engage on the issues being discussed”.

[29] The broadcaster noted that the Authority had signalled in Decision Nos. 2006-054 and 2004-133 that if a person or organisation being criticised on talkback hears the show, but does not call in, the Authority may find that they did not utilise their reasonable opportunity to present their views. RadioWorks concluded that the Commissioner’s Office had a reasonable opportunity to present its views on the issues raised in the programme.

[30] With regard to the Commissioner’s request to appear on the programme on the following Tuesday, RadioWorks argued that a refusal was not unreasonable. Both the producer and legal counsel explained that the programme was themed, that it was not produced, and that calls were monitored and controlled to ensure they were consistent with the theme. To require a call to be accepted or to order an on-air interview “would be a significant trespass into editorial freedom and completely unacceptable”, RadioWorks wrote. It noted that the Authority “has many times made it clear that it will not undertake an editorial role and the High Court [in Ransfield v TRN and Others [2005] NZLR 233] has made it clear that it is a radio station’s right to accept (or not) callers to the station”.

[31] The broadcaster accepted that Mr Laws did not set out to provide an objective view on the issues that he raised and that the tone of the broadcast was critical of the complainant. However, this did not mean that the programme failed to allow an opportunity for a contrary view to be expressed, it said. The broadcaster argued that it was implicit in Mr Laws’ invitation for the expression of a contrary view that a contrary view may exist. Dr Kiro’s failure, despite an explicit invitation, to take up the invitation to express that contrary perspective and engage in the issues raised “indicates an unwillingness to present her perspective or to have someone from her office do so”, RadioWorks said.

[32] Accordingly, RadioWorks declined to uphold the Standard 4 complaint.

Standard 6 (fairness)

[33] The broadcaster noted that Dr Kiro was a public figure with a public role, that she controlled a department and that she had the ability to issue press releases and make public statements. It said that a Google search showed that the release of the report was reported across all mainstream media, and in support included the first page of search results.

[34] Given the extent of reporting of her position, Radioworks argued, it seemed unlikely that Radio Live’s listeners would have been left with an unfair perspective on her work and her position on the report. It accepted that the comments from callers and from the host were critical, but maintained they were “not unfairly so”. The comments did not denigrate her personally, the broadcaster said, but were critical of her work and her position on the issue. It contended that “this sort of (sometimes harsh and outspoken) comment is grist to the mill for any talkback host and in particular this host”.

[35] RadioWorks argued that “Dr Kiro cannot expect to have all media dance to her dictate – talk radio is the very essence of democracy in action”. There will often be comments that are outspoken or outrageous, it said, but in this context, on this subject and in relation to the issue, the comments were not unfair. RadioWorks emphasised that Dr Kiro was informed that the issue and her work were being considered, and that she had the best part of three hours to arrange for her perspective to be put, either by her or someone representing her. It considered that, as a government appointed official, the complainant had considerable means of getting her perspective in the media. She was not denied the chance to come on the show on the day of the broadcast, it said, but she chose not to make herself or a representative available. Further, the radio station and the host have the right to determine editorial content. RadioWorks said, “she has no right to demand that they make airtime available to her to present her ‘response’”.

[36] In these circumstances, RadioWorks concluded that Dr Kiro was not treated unfairly, and it declined to uphold the fairness complaint.

Referral to the Authority

[37] Dissatisfied with RadioWorks’ response, Dr Kiro referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. Her referral responded to selected points made in RadioWorks’ decision.

The balance standard has no application to this talkback programme

[38] The complainant stated that it was well-settled that the balance standard could apply to talkback programmes when they squarely focus on an important public issue and did so in a controversial way. In Decision Nos. 2004-133 and 2006-054, Dr Kiro said, the Authority found that the balance standard applied to talk shows. She noted that the Radio Code explicitly referred to talkback shows with regard to the balance standard.

[39] The complainant pointed out that few such balance complaints were upheld for a variety of reasons, such as there was no serious discussion of the issue, the discussion played into other balancing coverage, a range of views was provided by the talkback callers, or the host provided balancing information. None of these factors applied here, she said; “this was no mere throwaway line or peripheral comment”. The host specifically raised the issues in the introduction that were the theme of the entire three hours, and the host and others commented on them at length.

[40] Dr Kiro considered that the discussion was “serious and protracted”, and that the host, along with other callers, “made repeated analytical and factual statements and criticisms”.

[41] Issues concerning the causes and proper solutions for child poverty and the competence of the Children’s Commissioner to deal with that issue were surely issues of public importance, the complainant said. They were also undoubtedly controversial, given “the stinging and repeated nature of the criticisms”. Further, it could not be suggested, given the length and nature of the comments and statements over three hours, that there was no “discussion” of these issues. Dr Kiro said it was surprising that Radio Live could believe that it was entitled to broadcast three hours of coverage of an important public topic, “made up largely of scathing criticisms of an office-holder and a significant policy report”, and then assert that the balance standard did not apply.

[42] The complainant noted that the two decisions cited by RadioWorks did not support its argument, first because both accepted that the balance standard applied to talkback. Second, neither was upheld because callers had provided opposing viewpoints, the complainant was offered a chance to participate in a later interview, or an appropriate person was interviewed by the programme in order to provide a contrary viewpoint. No such opportunities were provided here, Dr Kiro said.

[43] In addition, the complainant said, the broadcaster “conveniently [omitted]” any reference to the Authority’s decisions which suggested that:

• The mere opportunity for talkback callers to supply balance is not enough if no one calls in to do so; and
• If a person is seriously criticised on talkback they should be approached for comment.

[44] The complainant considered there was no doubt that she was seriously criticised.

[45] As to whether other talkback callers supplied balance, the complainant urged the Authority to listen to the entire three-hour programme. There was only one significant opposing viewpoint aired, she said, and the air time given to that viewpoint was “patently inadequate”. Dr Kiro said that “the host interrupted [that caller], accused her of bias, then cut her off, subsequently delivering a tirade against her”.

Reasonable opportunity for Children’s Commissioner to comment

[46] The complainant noted that RadioWorks did not deny that, although it alerted the Commissioner’s Office to the nature of the programme at about 9.40am, the producer emphasised that the broadcaster was not inviting her to appear on air for an interview. However, she said, RadioWorks considered that this amounted to a “clear and direct invitation”.

[47] Dr Kiro referred to the broadcaster’s argument that the Authority has found that, if those being criticised on talkback are listening, but do not call in, they may be found to have failed to utilise a reasonable opportunity to present their views. She argued that there were other factors in those decisions, such as that the broadcaster had later offered an interview which the complainant refused.

[48] In any event, Dr Kiro argued, it was unreasonable to expect her to phone the show during the broadcast because:

• She was told she was not being invited to appear on air.
• She was not listening to the programme, as she was busy for most of the morning with other interviews and engagements.
• She was not aware of all the criticisms that were advanced, for example her office knew that Mr McLay, a former Commissioner, had phoned but did not know what he said because that happened before the office was told about the programme. She considered it was reasonable for her to gather that information before responding.
• At the end of the show, the host promised to revisit the issue.
• The host had previously, on air, criticised her for not coming on his show to answer his criticisms. Dr Kiro attached a statement broadcast by Radio Live relating to an earlier complaint in which the host had accused Dr Kiro of refusing to appear on the show, which he was misinformed about. She “could not be expected to predict that Mr Laws would hypocritically refuse to let her appear on this occasion after lambasting her for failing to do so earlier”.
• She contacted the station at the first opportunity after she had familiarised herself with the criticisms advanced during the broadcast.

[49] Dr Kiro noted that the balance requirement could be satisfied within the period of current interest. She considered that period surely extended into the following week. Radio Live refused her request to address the serious criticisms made against her and the important policy issues raised, even though she offered to be flexible about when she could appear on air. The complainant concluded that this clearly breached the balance standard.

The themed nature of the show prevented Radio Live allowing the Commissioner on air

[50] The complainant argued that this point, made by RadioWorks, if taken literally would mean that a broadcaster could “sidestep the balance requirement almost whenever it wished, simply by saying it had moved on to other topics”. If the Authority upheld this complaint, it would not be interfering with editorial freedom any more than it did whenever it upheld a balance or fairness complaint.

[51] Dr Kiro considered that it was “mischievous” of RadioWorks to suggest that the High Court case of Ransfield had any bearing on this matter, because it specifically referred to the jurisdiction of the Authority to determine balance and fairness complaints, even in the context of talkback radio.

[52] The Children’s Commissioner said she was “encouraged that the [broadcaster] acknowledges that there are contrary perspectives on the issue being discussed”. Those perspectives were outlined in her original complaint, she said, yet the broadcaster did not see fit to air her viewpoints.

The Commissioner’s views have been reported across mainstream media

[53] The complainant argued that the range of articles cited by the broadcaster did not contain information that responded to the specific issues raised by Mr Laws or the criticisms he advanced. She invited RadioWorks to identify the elements of those stories that did so.

The comments by the host and callers were “not unfair”

[54] Dr Kiro reiterated that her main concern under fairness was that she was seriously criticised and not given a fair chance to reply. This in large part overlapped with the balance standard, she said, and was exacerbated by the unfairness of many of the criticisms, including:

• The inaccuracy of almost everything Mr McLay said;
• The host’s repeated implication that Dr Kiro’s ethnicity made her biased in favour of Māori;
• The host’s inaccurate characterisation of the report as seeking to “throw money” at the problem of child poverty, when the report’s main conclusion was that the best pathway out of poverty was to help parents into full-time paid work;
• Mr Laws’ failure to refer to any aspect of the report that was inconsistent with the picture of it he wanted to paint;
• Mr Laws’ suggestion that the research was “anti-academic” and “crap” without reference to the qualifications of those who conducted and peer-reviewed it;
• The host’s inaccurate suggestion that Dr Kiro had never experienced poverty;
• The host’s failure to refer to any of Dr Kiro’s many activities and speeches that were directed at precisely the things he accused her of not addressing.

Conclusion

[55] The complainant contended that this involved precisely the sort of ethical conduct that the balance and fairness standards were aimed at: ensuring that listeners were given the chance to hear from those seriously criticised, and those best placed to address significant criticisms of policy proposals concerning important public issues. Radio Live denied this both to listeners and to her, she said, yet believed it had acted appropriately. If balance and fairness did not apply here, the Commissioner said, it was difficult to see that they could have any application at all to talkback radio.

Broadcaster’s Response to the Authority

[56] RadioWorks considered that Dr Kiro had “attempted to elevate the broadcast to a level well beyond its overall importance in the scheme of things – claiming that this was an issue of public importance and controversy”. It noted that she invited the Authority to listen to the entire broadcast in order to fully appreciate the scale and force of what was said by Mr Laws on the subject he was using as his theme that day.

Standard 4 (controversial issues – viewpoints)

[57] RadioWorks said that it remained of the view that Standard 4 did not apply, even to the limited extent that was appropriate for a talkback environment. It referred the Authority to the points made in its original argument.

[58] In the event that the Authority took a contrary view, the broadcaster said, the standard must be applied and interpreted in a “proportionate and reasonable manner”. The Authority must take account of both the purpose of the standard’s requirements and the overall context of the broadcast, it said. RadioWorks maintained that relevant considerations were:

• The standard is concerned for the rights of listeners, not the rights of participants or those referred to; those are addressed in the fairness standard.
• The purpose of the standard is to ensure that where an issue is controversial, that is, important and publicly debated, and there are different perspectives, listeners appreciate those different perspectives. There need not be equality of treatment regarding the different perspectives but they must be presented sufficiently for them to be understood by listeners.
• Listeners of this programme, who typically tune in for short periods rather than the whole show, would have clearly understood that Dr Kiro’s perspective was support for the report she had released and was promoting.
• Dr Kiro’s office was contacted and advised that the report was being discussed. That was the opportunity for her office to present her perspective directly rather than letting the report speak for itself. If Dr Kiro was unavailable, a member of her staff, such as a communications person, was able to present her perspective during the programme.
• Listeners might reasonably be expected to be aware of the perspective of the Children’s Commissioner, given the amount of other coverage.
• In a programme of this type there is a very limited listener expectation that they will be presented with a range of viewpoints. It is the very essence of talkback radio that people with strong views on the topic who phone in “get to have their say”. If a person fails to call, they “miss out”. Context is important as this show has an established format, and therefore strong listener expectation, in that there will be a number of themes or topics each day with the host prepared to take an opinionated view on the topics discussed.

[59] RadioWorks maintained that, if there was an obligation to present a range of views in this context, it was at a very low level and the threshold was easily met in the context of this radio broadcast. To set the threshold any higher would “create a restraint on freedom of expression that is disproportionate to the purpose of the restraint”, it said.

[60] The broadcaster emphasised that talkback radio was a robust environment that fulfilled an important function in allowing spontaneous and free-ranging discussion of society’s topics of the day. It considered that:

There is no need, in this environment, to establish a regime requiring a more structured approach – that need is met by news and current affairs... reporting in other timeslots on this radio station and in other media.

[61] RadioWorks reiterated that the standard was about listeners’ rights and their understanding of the topic discussed. It considered that no listener would have failed to understand the range of views that exist on the topic discussed in the programme on 8 August.

[62] The broadcaster considered that Dr Kiro’s other concerns about the “stinging and repeated nature of the criticisms” were more appropriately dealt with under fairness.

Standard 6 (fairness)

[63] RadioWorks argued that, as an appointed official carrying out a public function, Dr Kiro’s work and her conduct were appropriately the subject of scrutiny, comment and criticism. Public figures must accept more stringent scrutiny and criticism than private individuals, it said. People in a democracy are entitled to form views in that respect.

[64] The broadcaster reiterated that Dr Kiro’s office was aware of the broadcast from early in the programme because it was alerted to it by the broadcaster. It considered that this was sufficient to ensure Dr Kiro was treated fairly, because she or her office could have phoned the station and refuted or disagreed with what was being said about her and her work. She and her office chose not to do this, it said, even though they had the means and the opportunity. RadioWorks argued they were unable to now say that she was busy and needed time to prepare. It said:

Public officials need to [be] agile, quick-witted and thick-skinned – they need to be ready to make their case – they do not have the luxury, in a democracy, of controlling what the media will say, when they will say it and how they will express themselves. They cannot be allowed to orchestrate when an issue will be addressed and set a timetable that suits them and only them. Editorial freedoms are at risk of being overborne by defensive public officials if that is allowed to happen. Persons in the position of this complainant have their own publicity machinery for getting their message across – talk radio is a democracy’s balance to that exercise of power – it allows the listener to “have their say” even if they lack a publicity machine to make their views known to the audience.

[65] The broadcaster argued that the Authority should be slow to restrain free speech unless it could be clearly demonstrated that some harm had occurred as a result of the broadcast. There was no evidence to suggest that Dr Kiro had suffered some harm as a result of the programme, it said. She continues in office, the report she released has had wide media coverage, and her reputation could not be said to have been denigrated or blackened.

General comments

[66] RadioWorks maintained that talk radio is not the home of “ethical” journalism as contended by the complainant. Talk radio is tough, it said, and is the public’s direct opportunity to engage in discussion and publish its comments, whether they are right or wrong, fair or unfair. It considered that public figures should be slow to call upon broadcasting standards in an endeavour to protect themselves from criticism even where that criticism is strongly worded, “stinging” and “repeated”.

[67] The broadcaster contended that if the complainant did not like being criticised she should front up to it when the time and opportunity arises. If she fails to do so, she should move on, just as talkback hosts and listeners move on, to the next day’s topic. Democracy and free speech should be respected as such by public officials and the broadcasting regulator, it said.

[68] RadioWorks argued that the complainant had escalated the complaint in a manner that allowed the complaints process to unreasonably restrain free speech.

Complainant’s Final Comment

[69] Dr Kiro stated that she was concerned about both the unfairness to her and the lack of perspectives provided in the programme to the listening audience. The essence of her complaint was that both she and listeners were done a disservice because the talkback radio programme did not give her a fair chance to “talk back”. Listeners would have had no idea what Dr Kiro’s response would be to the criticisms advanced, she said. Even though they may have assumed she would disagree with them, this was a far cry from the broadcaster making reasonable efforts to present her views. The complainant noted that RadioWorks had not identified any parts of the broadcast which portrayed her views on the issues raised in the broadcast. RadioWorks also failed to identify any parts of other media coverage that contained her response to the criticisms made, she said.

[70] Dr Kiro accepted that the balance standard “applies in a diminished way in the talkback environment”. However, she considered this broadcast was:

...not just a couple of angry calls or a pointed barb. It [was] an entire three-hour programme where the host advanced, again and again, criticism against a senior public servant, and encouraged others to do the same. The criticisms squarely concerned an important matter of public policy. The criticisms were based on misleading and unfair information.

[71] In those circumstances, the complainant considered that enforcing standards of balance and fairness would not undermine media freedom but rather support their objective of informing listeners of a range of viewpoints so that they could properly assess criticisms of public people and policies. There was a strong case that requiring balance and fairness actually advances free speech values, she said, since “it leads to more speech, greater diversity of sources, a contest of ideas, and more information for the audience”.

[72] The complainant stated she was confused by the broadcaster’s repeated reference to the themed nature of the show. The programme often had several themes within one show, she said. She reminded RadioWorks that the host promised to revisit the issues raised, and that she had offered to appear on air at a time convenient to the station.

[73] Dr Kiro accepted that she was subject to public evaluation and criticism, but argued that it was not consistent with broadcasting standards for the media to expect in every situation that the person criticised could immediately respond while the broadcast was still in progress. If that was the case, she said, “broadcasters could easily evade fairness and balance requirements by timing its attacks for when its targets are known to be busy”. It was not fair or reasonable, she contended, to insist that she had lost her chance to respond to the criticisms advanced because she or a representative did not call the radio station during the show. Further, Radio Live had 15 hours of air time per week in which it could fit a balancing interview.

[74] The complainant disagreed with RadioWorks that she had not been harmed by the broadcast, as she was “accused of incompetence, wastefulness, stupidity, ineffectiveness, racism, sophistry and being out-of-touch”. In those circumstances, she said, listeners deserved to hear the other side of the story. Dr Kiro emphasised that she did not take issue with the public’s opportunity to engage in discussion, but that her complaint centred on the behaviour of the talkback host.

Authority's Determination

[75] 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 (fairness)

[76] Standard 6 requires broadcasters to deal justly and fairly with all individuals who participate or are referred to in a programme.

[77] The Authority has previously acknowledged the robust nature of the talkback radio environment (see, for example, Decision Nos. 2007-006 and 2006-088). It is of the view that, contrary to the complainant’s arguments, the radio station was under no obligation to notify Dr Kiro that she and the report were being discussed on the programme. The Authority considers that it was reasonable for Radio Live, as a matter of courtesy, to alert Dr Kiro’s office to the broadcast and indicate that it was open to her or a representative to phone the programme, while not explicitly inviting her to appear on air. It agrees with the broadcaster that, given the nature of talkback radio, this was the appropriate time for Dr Kiro or someone from the Commissioner's office to join the conversation if they wished to react. Further, because the programme has an established format and it is an editorial decision which themes will be discussed each day, it was not unfair for Michael Laws to refuse Dr Kiro’s request to appear during a later, completely unrelated broadcast.

[78] The Authority observes 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. As an appointed official carrying out a public function, Dr Kiro's work and her conduct were appropriately the subject of scrutiny, comment and criticism. The question for the Authority is whether that criticism overstepped the boundaries of fairness, that is, whether it strayed into abusively personal territory. The Authority is not persuaded that this was the case.

[79] Accordingly, in light of the robust nature of talkback radio, the fact that Dr Kiro was advised that the broadcast was taking place, and the complainant’s role as a public official, the Authority finds that Dr Kiro was not treated unfairly. It declines to uphold the Standard 6 complaint.

Standard 4 (controversial issues – viewpoints)

[80] 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.

[81] The Authority has previously said that Standard 4 exists primarily for the benefit of the listening or viewing public (see, for example, Decision No. 2005-083). 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.

[82] 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.

[83] 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.

[84] The Authority is in no doubt that the Michael Laws show fell into the latter category. While the level of child poverty, its causes and solutions are 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.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
19 December 2008

Appendix

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

1.      Email correspondence between RadioWorks and the complainant – 12 August 2008
2.     Dr Cindy Kiro’s formal complaint – 22 August 2008
3.     RadioWorks’ response to the complaint – 12 September 2008
4.     Dr Kiro’s referral to the Authority – 25 September 2008
5.     RadioWorks’ response to the referral – 16 October 2008
6.     Dr Kiro’s final comments – 3 November 2008