Complaint under section 8(1)(a) of the Broadcasting Act 1989
Simulcast by broadcasters of the Good Vibrations Carnival at Cooper’s Beach between 1pm and 5pm Saturday 15 April 2006 – carnival organised as community response to Dr Neil Benson’s plan to open a brothel at Cooper’s Beach – broadcast included comments critical of brothel proposal and extracts critical of the proposal from the meeting at Mangonui Town Hall organised to discuss brothel proposal – broadcasts allegedly in breach of privacy, unbalanced, inaccurate and unfair
Doubtless Bay Family Radio
Principle 3 (privacy) – no private facts disclosed – not upheld
Principle 4 (balance) – approach taken in broadcast clearly explained and reasonable opportunities given for other significant points of view – not upheld
Principle 5 (fairness) – Bensons not dealt with unfairly – not upheld
Principle 6 (accuracy) – no inaccuracies – not upheld
Principle 7 (social responsibility) – brothel owners not denigrated or discriminated against – not upheld
Far North Cable TV
Standard 1 (accuracy) – no inaccuracies – not upheld
Standard 4 (fairness) – Bensons not dealt with unfairly – not upheld
Standard 5 (respect principles of law) – no disrespect shown – not upheld
Standard 6 (balance) – approach taken in broadcast clearly explained and reasonable opportunities given for other significant points of view – not upheld
Standard 7 (deceptive practices) – no deceptive technical practices – not upheld
Standard 12 (encouraging denigration) – brothel owners not denigrated – not upheld
Standards 13, 14, 17, 18 (accuracy and fairness) – broadcasts not documentary, news or current affairs – not upheld
Appendix 1 (privacy) – no intrusion into seclusion – not upheld
This headnote does not form part of the decision.
 Dr Neil Benson, a general practitioner in Cooper’s Beach, decided to close his medical practice and turn the building he had used as a surgery into a brothel. This change of career path created media interest and evoked some opposition locally. In late February 2006, a meeting was held in the Mangonui Town Hall to which Dr Benson was not invited. Media reports stated that about 130 people attended the meeting. It was addressed by Scott McMurray, formerly of the Maxim Institute, who said that research indicated an increase in crime when a brothel was opened in an area. The reports also state that 21 of the 23 people who spoke at the meeting were opposed to the brothel.
 Early enquiries suggested that the brothel was planning to open on 15 April. Rather than confine their opposition to a demonstration, the brothel opponents decided to protest in a positive way. A “Good Vibrations Carnival” was organised for Cooper’s Beach for the afternoon of 15 April, with a focus on family and community values.
 Mr Robert Cooper was one of the opponents to the brothel proposal and he had expressed his views strongly in the letter columns of the Doubtless Bay Times, the local newspaper. Mr Cooper is also the owner and operator of Far North Cable TV (FCNTV) and Doubtless Bay Family Radio (DBFR) and he decided to broadcast the Good Vibrations Carnival by way of simulcast on DBFR and FNCTV.
 The “Good Vibrations Carnival” took place between 1pm and 5pm on Saturday 15 April 2006. There were 33 stalls and local groups played music during the afternoon. The event was covered live on a simulcast from Doubtless Bay Family Radio (DBFR) and Far North Cable TV (FNCTV). Robert Cooper and local resident John Haines were the announcers in the studio. A remote TV camera showing the carnival grounds was linked to the studio. Two trainee reporters arranged for people at the carnival to be interviewed. These people stood in front of the remote camera and were interviewed with the use of cell phones and UHF two-way radios.
 In addition to the interviews and music played from the studio, the broadcast included extracts from a meeting in the Mangonui Town Hall, held in late February 2006, to discuss the brothel proposal. The extracts broadcast were critical of the proposal.
 During the broadcast, the announcers phoned the proposed brothel and played the answer-phone message, which stated that it was intended to open later in April. The audience was told that the voice on the answer-phone was that of Mrs Benson (the wife of Dr Neil Benson).
 Helen Benson complained to DBFR and FNCTV that the simulcast breached a range of broadcasting standards from the Radio Code of Broadcasting Practice and the Pay Television Code of Broadcasting Practice.
 Noting that both DBFR and FNCTV were controlled by Robert Cooper, Mrs Benson considered the coverage of the brothel proposal by the named broadcasters fell “substantially short” of the standards. She wrote:
I feel a personal vendetta by Bob Cooper has adversely affected his judgment regarding his professional obligations in covering an event of major public interest. His use of his media outlets to damage us personally and negatively impact on our new business, is at the heart of the breaches I have outlined in both the radio and pay TV standards.
 In the complaint against FNCTV, Mrs Benson referred first to a camera which, she said, had been installed to focus on the brothel site, and second, to some factual errors about the proposed opening date. The central complaint was that the broadcast was inaccurate, unbalanced and unfair in the way it dealt with her, her husband and the brothel issue and, despite its presentation of the carnival as a community event, its slant was “vehemently anti-brothel”. Only anti-brothel views from the February community meeting were screened, she said, and no attempt was made to present any of the publicly voiced support for the brothel.
 The complaint against DBFR was similar. Mrs Benson considered that playing the brothel answer-phone message without her consent was designed to ridicule her. Some of the announcers’ comments and the clips from the community meeting, she wrote:
… questioned my and my husband’s abilities as parents and our standing in the community, which I view as slanderous.
 Mrs Benson attached to her complaint articles from the Doubtless Bay Times dated 5 and 19 April, a “Good Vibrations Carnival” flyer, and information from a website which, she said, had been prepared by Mr Cooper and showed his “animosity towards us and our business”.
 The complainant nominated the following Standards from the Pay Television Code of Broadcasting Practice, and the following Principles from the Radio Code.
In the preparation and presentation of programmes, broadcasters are required:
S1 To be truthful and accurate on points of fact.
S4 To deal justly and fairly with any person taking part or referred to in any programme.
S5 To respect the principles of law which sustain our society.
S6 To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.
S7 To avoid the use of any deceptive programme practice in the presentation of programmes which takes advantage of viewers’ confidence in the integrity of broadcasting.
S12 To avoid portraying people in a way which represents as inherently inferior, or is likely to encourage discrimination against, any section of the community on account of sex, race, age, disability, occupational status, sexual orientation or the holding of any religious, cultural or political belief. This requirement is not intended to prevent the broadcast of material which is:
i) factual, or
ii) the expression of genuinely-held opinion in a news or current affairs programme, or
iii) in the legitimate context of a humorous, satirical or dramatic work.
The following standards are headed News, Current Affairs and Documentaries and read:
S13 News must be presented accurately, objectively and impartially.
S14 The standards of integrity and reliability of information sources in news, current affairs and documentaries should be maintained.
S17 Edited extracts of programme material must be a true reflection and not a distortion of the original event or the overall views expressed.
S18 No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, and this can be done only by judging every case on its merits.
The Code includes the Privacy Principles and Mrs Benson cited the following:
i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.
iv) The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.
Principle 3 Privacy
In programmes and their presentation, broadcasters are required to maintain standards consistent with the privacy of the individual.
Guideline 3a Broadcasters shall apply the privacy principles developed by the Broadcasting Standards Authority.
Principle 4 Balance
In programmes and their presentation, broadcasters are required to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
4a Broadcasters will respect the rights of individuals to express their own opinions.
4b Broadcasters may have regard, when ensuring that programmes comply with Principle
4, to the following matters:
[i] An appropriate introduction to the programme; and
[ii] Any reasonable on-air opportunity for listeners to ask questions or present rebuttal within the period of current interest. Broadcasters may have regard to the views expressed by other broadcasters or in the media which listeners could reasonably be expected to be aware of.
Principle 5 Fairness
In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.
5a No telephone conversation will be recorded or broadcast for the purpose of news, current affairs or any other programme, unless the recipient has been advised that it is being recorded for possible broadcast, or is aware that the conversation is being broadcast. Exceptions may apply depending upon the context of the broadcast, including the legitimate use of humour.
5b Care must be taken in the editing of programme material to ensure that the extracts used are a true reflection and not a distortion of the original event or the overall views expressed.
5c Programmes shall not be presented in such a way as to cause panic, or unwarranted alarm or undue distress.
Principle 6 Accuracy
In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.
6a Broadcasters will not use deceptive programme practices.
6c Factual reports on the one hand, and opinion, analysis and comment on the other, shall be clearly distinguished.
6d Broadcasters shall ensure that the editorial independence and integrity of news and current affairs is maintained.
Principle 7 Social Responsibility
In programmes and their presentation, broadcasters are required to be socially responsible.
Guideline 7a Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:
i) factual; or
ii) a genuine expression of serious comment, analysis or opinion, or
iii) by way of legitimate humour or satire.
 On behalf of both broadcasters, Robert Cooper responded to the complaints. With regard to the complaint that the coverage of the Good Vibrations Carnival was one-sided in that it was anti-brothel, Mr Cooper said that Dr Benson had reaped rich media rewards “by popularising his turning a failed medical practice into a Brothel”. The intention of the carnival, he wrote, was to demonstrate to the media that Cooper’s Beach did not totally support Dr Benson’s plan. He stated that the carnival had been scheduled for the day that the brothel had been planning to open.
 Mr Cooper argued that the coverage of the brothel proposal on DBFR was fair and balanced, unlike the coverage in other media. Moreover, in view of the other media coverage, he said, the Bensons could not now argue that their privacy was being invaded.
 Outlining the preparations for and the content of the coverage between 1pm and 5pm on 15 April, Mr Cooper acknowledged that the brothel’s answer-phone message had been broadcast. He explained that he had done so to ensure that the audience was aware of the brothel’s plans. As the message was intended for the public, he continued, it could not be regarded as private information.
 Mr Cooper pointed out that he and his co-announcer had repeatedly asked anyone who had anything to say about the brothel to telephone and be interviewed live on air. He recalled that nobody had phoned in favour of the brothel.
 The extensive favourable media coverage that the brothel proposal had received elsewhere, Mr Cooper wrote, omitted the issue of “family values”. The coverage had suggested that the only opposition was religion based. He stated:
If – IF – our coverage carried a bias, it is simply this. Non-religious people opposed to the brothel should have an opportunity to be heard as well. Both Dr Benson’s view and the religious view have been well covered; those opposed for non-religious reasons have had no say to date. If – IF – we somehow had an agenda, it was simply to offer such an opportunity to be heard, to speak out.
 Mr Cooper concluded his response in respect of the DBFR broadcast:
DBFR coverage of the “Good Vibrations Carnival” was fair, balanced and allowed every opportunity for participants to voice their opinion in a public way. I believe we have quite properly fulfilled our mandate to be “Doubtless Bay’s local-community radio station”. I, therefore, reject totally the complaints filed by Mrs Helen Benson.
 In response to the complaint against FNCTV about a camera located across the road from the brothel, Mr Cooper said that no TV camera had been installed on the site.
 He also made the point dealt with in his response to the DBFR complaint that, during the broadcast, repeated requests were made for telephone calls in favour of the brothel. However, none was received. Two of the participants at the carnival who were interviewed, he noted, gave a neutral view.
 Dissatisfied with the broadcaster’s response to each complaint, Mrs Benson referred her complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
 In response to the broadcaster’s contention about the extensive and world-wide media interest in the plan for the brothel, she maintained that the coverage was neither as extensive nor as one-sided as alleged. She added:
I believe that Mr Cooper is overstating the amount of media hype that he felt needed to be countered in order to justify the ferocity of his attack on us.
 Mrs Benson contended that two or three people had spoken in favour of the brothel at the meeting in the Mangonui Town Hall, and she asked why the broadcast had not included some clips of these speakers. She described as “remiss” the broadcaster’s failure during the broadcast to speak to supporters of the brothel.
 Turning to the coverage of the carnival, Mrs Benson described it as “very anti-Benson, anti-brothel” which was “supported and encouraged” by the announcers. She considered that the broadcast of the brothel’s answer-phone message was “a gross misrepresentation of a private business message to potential clients”, and it had been included to ridicule and embarrass her.
 She noted that the coverage of the carnival included excerpts from the Mangonui Town Hall meeting. She postulated the following reasons for including this material:
I believe that Bob Cooper deliberately slanted the coverage to an anti-Benson, anti-brothel angle for his own purposes: personal revenge and perhaps the desire to boost his business by appealing to the religious sector of the community. There is no excuse for such careless disregard of the need for balanced coverage: this was an issue of great interest and importance to the community.
 In response to the broadcaster’s contention that the broadcast was designed to allow non-religious opponents the opportunity to voice their objection, Mrs Benson argued that broadcasters had a responsibility to ensure balanced broadcasts. This would include the religious and non-religious brothel supporters.
 Turning to the four-hour coverage of the Good Vibrations Carnival, Mrs Benson maintained that the broadcast was not balanced. Further, it was the broadcaster’s responsibility, not hers, to ensure that the broadcast was balanced. She had decided on the day not to telephone as she
… did not feel that I would have received fair treatment, live on air, by Mr Cooper as he had already showed tremendous bias against me in the local media prior to the celebration.
 Mrs Benson dealt at some length with the installation of a camera across from the brothel and, in conclusion, she maintained that the broadcast breached the standards. She acknowledged that the Authority did not have jurisdiction over the website which she said had been set up by Mr Cooper, or the articles in the local paper. However, she had drawn the Authority’s attention to them
… to show the level of Mr Cooper’s animosity towards us and the lengths that he would go in order to damage our reputations and our business.
 Pointing out that no functional camera ever operated from the garage building opposite the brothel site, Mr Cooper said that the allegations in regard to this matter did not raise an issue of broadcasting standards.
 In response to the complaint that the coverage of the Good Vibrations Carnival was “pointedly anti-brothel”, Mr Cooper explained that the carnival was planned as a positive response by those who opposed the brothel. The date was set, 15 April, based on inquiries which suggested that this was also the intended date of the brothel opening. The Bensons, he added, then cancelled the opening date to avoid unpleasant media coverage.
 He described the coverage of the carnival in the following way:
Even a casual inspection of the 4-hour DVD illustrates the upbeat, positive nature of the people interviewed at the Carnival and our support coverage from the studio…
 Public protests had been a major theme at the Mangonui Town Hall meeting but, he claimed, he had persuaded a number of local residents to “soft-peddle” the planned protests. He added that it was his decision to hold a carnival which would reflect positive community values.
 Mr Cooper repeated a number of his earlier comments. These included the points that there was widespread media interest in the brothel being opened by a medical general practitioner and that Dr Benson, by claiming that he had been mistreated by the medical establishment, had damaged the nation’s health system. He also insisted that 15 April was the planned opening date. As for the meeting in the Mangonui Town Hall, he said only two out of 23 speakers from the audience of about 130 spoke in favour of the brothel.
 As for the simulcast coverage, Mr Cooper disagreed with Mrs Benson’s description that it was “unfair and biased”. The field reporters were asked to find people at the carnival for interview but there were no instructions about the attitude of the interviewees towards the brothel. “If any of the interviews were anti-Benson, anti-Brothel, they were genuine, with no pre-arrangements.” The inclusion in the coverage of speakers at the Mangonui Town Hall meeting was a fair reflection of the speakers at the meeting, Mr Cooper said.
 He repeated the point that the announcers made frequent requests for people to telephone and comment, and no caller who agreed to go on-air was denied the opportunity to do so. He did not accept that the answer-phone message was a private business message which was confined to potential clients, as it was heard by anyone who called the number.
 He summarised his response in the following way:
The DBFR broadcast provided an opportunity for a “reality check” to a community “held in ridicule” by a man whom the community relied upon, depended upon for their medical needs, and who without apparent legal justification simply shut down leaving more than 2000 on-roster patients devoid of a local medical practitioner.
 Mr Cooper pointed out that the attachments to Mrs Benson’s complaint when she referred it to the Authority included an offer of a prepared interview he had made to her on 25 April. Mrs Benson, Mr Cooper pointed out, “repeatedly refused” the offer.
 On the basis, first, that no more than two of the 23 speakers at the Mangonui Town Hall supported the brothel, and secondly, that the Bensons did not avail themselves of the opportunity to telephone during the coverage of the carnival, Mr Cooper considered that the complaint was based on “unsubstantiated assumptions and hypothecation of thinly understood facts”. He asked that the complaint be declined, stating:
We have created, at our own expense, a quality, public-spirited, public-backed “community radio” which serves an otherwise “under-served” region of rural New Zealand. For the event in question, we did not set out to do more than provide a public event (the Carnival which DBFR co-sponsored) which would focus the region on rediscovering its own unique identity.
 In her final comment, Mrs Benson dealt in detail with a number of points made by Mr Cooper. She summarised her concerns in her conclusion, when she wrote:
 The members of the Authority have viewed and listened to a recording of the simulcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Mrs Benson’s privacy complaint focused mainly on a camera which the broadcaster arranged to install on a building across the road from the brothel. There is some dispute as to how far the installation went. Nevertheless, there is agreement that no broadcast by FNCTV contained any footage taken by that camera. Consequently, this aspect of the complaint does not raise a broadcasting standards issue and, accordingly, the detailed correspondence on the point has not been summarised and the matter is not covered by the Authority in its determination. The Authority does not uphold the privacy complaint which focused on this matter.
 Under Standard S6 of the Pay Code, broadcasters dealing with questions of a controversial nature are required to show “balance, impartiality and fairness”. Principle 4 of the more recently revised Radio Code applies to programmes dealing with controversial issues of public importance and, in such programmes, reasonable efforts must be made or reasonable opportunities given to present significant points of view.
 The Authority acknowledges that the requirements of each standard differ. However, because the wording in Principle 4 of the Radio Code mirrors the wording in s.4(1)(d) of the Broadcasting Act, the Authority gives precedence to the requirements in that standard in its determination of the balance complaint.
 Taking into account the media coverage which Dr Benson’s planned brothel has attracted both locally and nationwide, the Authority accepts that the brothel proposal was a controversial issue to which both Standard S6 and Principle 4 apply.
 The Authority considers that the tone of the broadcast was anti-brothel, although both announcers stressed the importance of positive opposition, rather than just taking a negative approach. The announcers’ approach to the issue was not vehement and they frequently asked listeners and viewers to telephone and express their views about the proposed brothel. The Authority does not accept that the broadcast in itself was a balanced discussion of the proposal and it finds that its tone, while relatively measured, was definitely anti-brothel. However, while the simulcast came close to breaching the requirement for balance, for the reasons outlined below the Authority finds that the standards were not breached.
 The Code records that Guidelines are included to assist in applying the Principles to specific complaints and, in reaching this decision, the Authority has been assisted by the Guidelines in the Radio Code which accompany Principle 4. They read:
4a Broadcasters will respect the rights of individuals to express their own opinions.
4b Broadcasters may have regard, when ensuring that programmes comply with principle4, to the following matters:
(i) An appropriate introduction to the programme; and
(ii) Any reasonable on-air opportunity for listeners to ask questions or present rebuttal within the period of current interest. Broadcasters may have regard to the views expressed by other broadcasters or in the media which listeners could reasonably be expected to be aware of.
 First, the Authority notes that the broadcaster did not set out to provide an objective view of the brothel proposal, and this approach was made clear in the introduction and throughout the simulcast. Mr Cooper contended that the simulcast presented the non-religious opposition to the brothel. The Authority notes that many viewpoints – including Mr Cooper’s and Mrs Benson’s – had earlier been published in the local newspaper. The national media had also reported on Dr Benson’s brothel proposal and the fact that there was a degree of local opposition to the proposal. Accordingly, the Authority is of the view that – in addition to the clear perspective advanced in the simulcast – listeners would have been well aware that there were a number of significant perspectives on this issue.
 Second, the Authority observes that the announcers made repeated requests for callers to express their views. Mrs Benson stated that she considered calling but decided not to do so because she assumed she would be treated unfairly. However, the Authority notes that the anti-brothel tone of the broadcast did not appear to constrain others who were not opposed to the brothel from voicing their opinion on air, which two people interviewed at the carnival chose to do. In both cases, they were permitted to have their say without interruption or criticism.
 Further, Mr Cooper offered Mrs Benson the opportunity to participate in a prepared interview on 25 April. Despite the fact that Mrs Benson chose not to participate in the 15 April broadcast or afterwards, the Authority considers that reasonable opportunities were given to Mrs Benson and others to present significant points of view on the issue under discussion.
 Accordingly, given the clear approach taken by the broadcaster in the simulcast’s introduction, the reasonable on-air opportunities given at the time to express a point of view about the proposal, and the wide media coverage that Dr Benson’s brothel proposal had received, the Authority concludes that Principle 4 and Standard S6 were not breached.
 The requirement to deal fairly with a person referred to is contained in both Codes. The Bensons were referred to in the broadcasts, and Mrs Benson contended that they were not dealt with justly and fairly. She mentioned the broadcast of the answer-phone message as a specific example of unfairness.
 The Authority considers that identifying Mrs Benson as the voice on the answer-phone was not unfair, because it was widely known that Mrs Benson and her husband were the proprietors of the proposed brothel. Further, the Authority finds that broadcasting a business answer-phone message – which is recorded for any member of the public to hear – is not unfair. In addition, the Authority notes that the playing of the message was not accompanied by any negative comments.
 Looking at the broadcasts overall, the Authority has found that reasonable opportunities were given to the Bensons to be interviewed; indeed, a specific request was made for them to participate in an interview on 25 April. Further, the Authority observes that, while the tone of the broadcasts was anti-brothel, they did not include any negative comments about the Bensons personally. In these circumstances, the Authority does not uphold the complaint that the broadcasts were unfair to the Bensons.
 Mrs Benson complained that the broadcast was inaccurate when it said that the brothel opening date was now 29 April. The Authority notes that this date, and another date in May, were advanced as speculation during the broadcast – not as facts – and concludes that the simulcast was not inaccurate on this point.
 Mrs Benson contended that the broadcast of the answer-phone message and her name breached her privacy. The Authority does not agree. By its very nature, an answer-phone message for a business is not a private fact. Further, it was widely known that Mrs Benson and her husband were the proprietors of the proposed brothel, and therefore the fact that it was Mrs Benson’s voice on the answer-phone was not a private fact. The Authority declines to uphold this part of the complaint.
 Mrs Benson also complained that the broadcast encouraged denigration of and discrimination against brothel owners as a lawful occupational group. It is well-established that in light of the requirements of the Bill of Rights Act, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standards (see for example Decision No. 2002-152).
 On this occasion, while the broadcast expressed disapproval about the brothel and its opening, neither the announcers nor the callers made any comments which contained the high level of invective which would contravene the standard. The Authority does not uphold this aspect of the complaint.
 Mrs Benson also nominated the standards in the Pay TV Code dealing with respecting the principles of law and deceptive programme practices. Taking into account its previous decisions which have dealt with these standards (for example 1995-115 and 2000-169), the Authority considers that the simulcast neither showed any disrespect for the principles of law nor contained any technically deceptive practice. It declines to uphold these complaints.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
14 August 2006
The following correspondence was received and considered by the Authority when it determined this complaint: