BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Radio Pacific – talkback segment discussing Ahmed Zaoui – host said “I don’t care if we shoot him and send him out in a dog food can” – several other statements relating to Mr Zaoui’s activities – allegedly in breach of good taste and decency and inaccurate

Findings
Principle 1 (good taste and decency) – context – not upheld

Principle 6 (accuracy) – decline to determine accuracy of one statement – two statements inaccurate – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1] A talkback segment on Radio Pacific in the early evening on 11 November 2004 discussed the Algerian refugee Ahmed Zaoui. The host expressed strong views that Mr Zaoui should leave New Zealand, and said “I don’t care if we shoot him and send him out in a dog food can”.

[2] During the discussion, the host also made the following statements:

“[He’s a terrorist]…it’s been proven in Switzerland”

“They put him in a cell with no access to fax machines, mobile phones or emails [in Switzerland]”

“Of course he is [allowed to go back to Malaysia]. He can go tomorrow if he wants to pack his kit bag”

Complaint

[3] Vivienne Parre complained to CanWest RadioWorks Ltd, the broadcaster, that the item had breached standards of good taste and decency and accuracy. She argued that it was “profoundly distasteful and offensive” to suggest that a person be turned into dog food.

[4] In the complainant’s view, this comment was an example of inarticulate “hate speech” which added nothing to the debate about the manner in which Mr Zaoui’s case should be handled.

[5] Mrs Parre also asserted that the discussion had contained several inaccuracies. The host’s statement that “[he’s a terrorist]…it’s been proven in Switzerland” was incorrect because Mr Zaoui had never been charged with any offence in Switzerland, she said.

[6] The complainant also argued that Mr Zaoui had never been imprisoned in Switzerland, which made the host’s remark “they put him in a cell” inaccurate. Similarly, in response to the statement that Mr Zaoui was allowed to return to Malaysia, Mrs Parre stated that he had no right to enter or live in Malaysia.

Referral to the Authority

[7] Having received no response from the broadcaster, Mrs Parre referred her complaint to the Authority. In relation to Principle 1 (good taste and decency), Mrs Parre added that the comment was even less acceptable because

…it was directed towards a man who is a recognised refugee, who has been tortured in the past, and whose psychological state at the time had been professionally assessed as fragile due to his prolonged imprisonment and uncertain future.

[8] Mrs Parre argued that the host’s comments could have serious repercussions for Mr Zaoui and his family, while also having the potential to bring the justice system into disrepute.

[9] Mrs Parre also referred to four additional statements in the broadcast which she contended were misleading.

Principles

[10] Principles 1 and 6 of the Radio Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:

Principle 1

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.

Principle 6

In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.

Broadcaster’s Response to the Authority

[11] When asked to respond to the referral, CanWest advised the Authority that it had no record of receiving Mrs Parre’s complaint. It stated that it was “most unlikely” that it would have been mislaid or inadvertently destroyed. The broadcaster said that it had retained a copy of the broadcast, but that it did not contain the comment “I don’t care if we shoot him and send him out in a dog food can”.

[12] Responding to the complaint about Principle 1 (good taste and decency), CanWest contended that the host’s “strong negative” views were not unexpected or surprising within the context of the programme and in light of its target audience. The host had “nailed his colours to the mast” on the issue and he had invited reaction and comment from his listeners. CanWest found the comments to be within the bounds of good taste and decency.

[13] The broadcaster argued that Principle 6 (accuracy) only applied to news and current affairs programmes. Arguing that the talkback programme did not fall into this category, CanWest said the provisions of the principle did not apply.

Complainant’s Final Comment

[14] In response to CanWest’s letter, Mrs Parre first referred to the broadcaster’s assertion that the host did not say “I don’t care if we shoot him and send him out in a dog food can”. She provided the Authority with her own recording of the talkback discussion which did contain the comment. In addition, she maintained that she had faxed and mailed her complaint through to Radio Pacific. Mrs Parre questioned the broadcaster’s process of dealing with complaints.

[15] The complainant noted CanWest’s arguments with regard to Principle 1. In terms of target audience she asserted:

• The acceptability of violent imagery such as that used by the host should not be assessed simply by reference to the target audience, but by reference to wider community standards.
• The most significant harm is caused to the victim of hate speech, therefore the reaction of that person is more important than the target audience.
• The attitude of the listener with whom the host was speaking indicated that the target audience may include people who would find the comment offensive.
• While the host’s job involved igniting interest in his programme by making shocking remarks, the Code established that comments which offend against good taste and decency may not be employed to that end.

[16] Referring to CanWest’s statement that the comment was an example of the host’s “strong negative views”, Mrs Parre contended that it had gone much further than that. She said:

[17] The imagery “conjured up” by [the host] is of a person being executed, minced or otherwise processed as meat and ultimately fed to dogs. The comment was profoundly disrespectful, violent and hateful.

[18] The issue of whether the comment was “unexpected or surprising” did not, in the complainant’s view, have any real significance under the Code. Nevertheless, she did not accept that the comment met that description, because it was made in the context of a fairly measured discussion about Mr Zaoui’s case. Mrs Parre stated that the listener was eliciting information when the host “suddenly made a personal attack” on Mr Zaoui. This had introduced a novel and highly emotive tone into the discussion, she said.

[19] While CanWest had asserted that the host was inviting reaction and comment from his listeners, the complainant argued that further discussion could not have undone the damage caused by a comment of that nature. Furthermore, she contended that the onus must lie with the broadcaster to ensure the accuracy of such serious allegations, and that it would not be fair to expect Mr Zaoui or members of the public to bear that responsibility.

[20] Turning to consider Principle 6 (accuracy), Mrs Parre referred to a previous decision of the Authority which stated that “specific aspects of talkback may indeed be current affairs” (Decision No. 2001-103).  She noted that the issue of whether a talkback show was news or current affairs is to be determined according to whether the content was “editorial comment”, involving the expression of opinions rather than the presentation of facts.

[21] The complainant accepted that the host did express opinions during this broadcast. However, she also contended that he had made a number of assertions of fact about Mr Zaoui’s case. These statements, she said, were outlined in her original complaint. In Mrs Parre’s view, “taking a purposive and practical approach to the Code”, the requirements of Principle 6 did apply to those statements.

[22] In the event that the Authority did not find that the programme was a news or current affairs programme, Mrs Parre asked that her comments in respect of accuracy be dealt with as a complaint under Principle 5 (fairness).

[23] Should her complaint be upheld, Mrs Parre drew the Authority’s attention to several matters which she suggested it should consider in determining the nature and scope of any orders.

Further Information

[24] Mrs Parre provided the Authority with a copy of the Refugee Status Appeals Authority decision in Mr Zaoui’s case, and a copy of the Refugee Convention.

Further Correspondence

[25] After receiving the complainant’s final comment and further information, CanWest reiterated that it had never received Mrs Parre’s original complaint. It submitted that the complainant had not been prejudiced in any way, because CanWest had allowed the process to continue as though the complaint was received and no response to it was made.

[26] Referring to its original assertion that the comment “I don’t care if we shoot him and send him out in a dog food can” was not in the broadcast, CanWest observed that the host did not say this during the time period specified by the complainant (6–6.30pm). CanWest provided the Authority with a tape of the broadcast between 6.13pm and 6.40pm on 11 November, after the news and weather. It noted that the comment was not made during that time.

[27] The broadcaster contended that it could not scan audio searching for topics or key words; rather it could only look at the time period specified by a complainant. CanWest felt it was reasonable to cut off the audio at 6.40pm, by which time the “dog food” comment had not been made. Having now heard the audio provided by the complainant, CanWest said that it was able to respond to the issue of whether the comment was a breach of Principle 1.

[28] The broadcaster advised the Authority that it had asked the host of the talkback show for a response about the comment. He said:

I don’t believe it, but I accept I did say it. It was without malice, I promise! Is there no room here for asides, humour…and given my attitude to the guy this was humour, a little leg pulling. I absolutely guarantee there was no malice in the comment.

[29] CanWest asserted that the host had intended the comment as a joke, and noted that the caller had laughed about it. While stating that the comment was made in the context of a robust exchange of views which was expected of the talkback genre, CanWest accepted that the host had gone a step too far. The broadcaster was of the view that the comment amounted to a breach of Principle 1.

[30] Turning to consider Principle 6 (accuracy), CanWest submitted that the programme did not constitute a news or current affairs programme to which the principle should apply. It said:

The absolute requirement for accuracy which is the standard employed by the Authority is that expected of a carefully prepared and presented news and current affairs programme. To task a live talk show with the requirements of the principle would, in [the Standards Committee’s] submission, be wrong. Arguably that would be imposing a restriction on freedom of expression beyond what is reasonable in our society.

[31] Even if the Authority was to decide that the programme was news or current affairs, the broadcaster contended, it was clear that the presenter was expressing his opinion on the matters. The presenter believed that Mr Zaoui was a terrorist and should go back to Malaysia, it said.

[32] CanWest advised the Authority that it had not “ventured into the minefield of who convicted Mr Zaoui of what”, and it had not independently researched the point. Further, it was conscious that the effort to “unravel these complex issues has defeated even judicial bodies specially charged with such a role”.

[33] The broadcaster disagreed with Mrs Parre’s assertion that the position in Switzerland was more straightforward than the situation in Belgium or France. Even on “a swift reading of her selected material” CanWest saw that Mr Zaoui had been described as having been confined, restricted and detained and then deported. The broadcaster asserted that the host’s comment that “he was associated with terrorist activities in Switzerland” was reasonable under these circumstances.

[34] CanWest noted Mrs Parre’s request that the Authority assess the complaint under Principle 5 (fairness) should it find that Principle 6 did not apply. It objected to this, asserting that the complainant should be confined to the principles outlined in the original complaint and referral.

[35] Having received CanWest’s letter, Mrs Parre responded that the host’s comment was not light-hearted. While he may have found it funny, she said, the comment was “unusually vicious and crude”.

[36] In addition, the complainant contended that CanWest had failed to recognise that the issue before the Authority was whether this particular programme was current affairs – the issue of whether all talkback shows met that description was beside the point, she said. She reiterated her view that the host’s remarks were “clearly framed as assertions of fact” as opposed to being his opinions.

[37] Mrs Parre stated that Mr Zaoui had clearly not been charged with or convicted of any crime in Switzerland, nor had he been associated with any terrorist activities in that country. She argued that the host should not have made such serious allegations without taking the trouble to check his facts.

Authority's Determination

[38] The members of the Authority have listened to a tape of the broadcast supplied by the complainant and have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.

Procedural Matters

[39] In her referral to the Authority, Mrs Parre identified four other alleged inaccuracies in addition to the matters she had raised in her original complaint. Complaints must be made within 20 working days of a broadcast under s.6(2) of the Broadcasting Act 1989, and the complaint about the four additional statements did not meet that criterion. Accordingly, the Authority has confined its consideration of Principle 6 to the three statements identified in Mrs Parre’s formal complaint to the broadcaster.

[40] The Authority observes that CanWest was unable to locate a copy of the complainant’s formal complaint. This was despite her contention, which the Authority accepts, that she both faxed and mailed it to the broadcaster.

[41] The Authority also notes that there is some confusion about the timing of the broadcast in question, and it has been presented with conflicting information on this point. The Authority considers that the specific time of the broadcast is not relevant on this occasion and proceeds to determine the complaint.

Good Taste and Decency

[42] The complainant has alleged that the presenter’s remark “I don’t care if we shoot him and send him out in a dog food can” breached standards of good taste and decency. In its response to the Authority, CanWest agreed that the comment amounted to a breach of Principle 1.

[43] When the Authority considers a complaint which alleges a breach of good taste and decency, it is required to take into consideration the context of the broadcast. On this occasion, relevant contextual factors included:

• the target audience of adult listeners
• the robust and opinionated environment of talkback radio
• the fact that no obscene language was used.

[44] The Authority considers the comment was on the fringe of acceptability and that the complaint was appropriately made. Nevertheless, the Authority takes a different view from CanWest and concludes that the requirement for good taste and decency was not transgressed. The Authority considers that the presenter's tone suggested that he was being deliberately outrageous and provocative, and that his comments were not intended to be taken seriously. Rather, they were spoken to emphasise his general stance on Ahmed Zaoui’s situation.

[45] Taking into account the relevant contextual factors, the Authority declines to uphold this aspect of the complaint as a breach of Principle 1.

Accuracy

[46] Principle 6 requires factual accuracy in “news and current affairs programmes”, and the Authority must determine whether this talkback programme fell into one of these categories.

[47] In previous decisions dealing with complaints about comments made on talkback radio, the Authority has declined to make a definitive ruling as to whether talkback is always, or never, “current affairs”. Rather, the Authority has ruled that each complaint will be considered on its own particular circumstances.

[48] The Authority considers that one situation in which a talkback programme amounts to “current affairs” is when a host makes unqualified statements of material fact that set the basis for the discussion. Given the nature of the host’s remarks on this occasion, the Authority finds that they fell within that definition. Accordingly, it considers that the host’s remarks were subject to the requirement for accuracy.

[49] In determining the accuracy of the statements below, the Authority has had regard to the decision of the Refugee Status Appeals Authority (RSAA) in Ahmed Zaoui’s application to be granted refugee status in New Zealand.

“[He’s a terrorist]…it’s been proven in Switzerland”

[50] The RSAA decision unequivocally states that Mr Zaoui was not charged with any criminal offences in Switzerland. Further, the RSAA accepted that there was no evidence to suggest that Mr Zaoui was “engaged in or encouraged extremist or terrorist activities” in that country. On the basis of this information from an independent body, the Authority concludes that the statement noted above was inaccurate and in breach of Principle 6.

“They [the Swiss] put him in a cell with no access to fax machines, mobile phones or emails”

[51] The RSAA decision states that Ahmed Zaoui made a brief visit to Switzerland in October 1994, at which time he was “detained” at the German border when officials discovered that he had false travel documentation. The decision states that he disclosed his true identity and was “released after a few days”.

[52] It is also apparent that Mr Zaoui arrived in Switzerland again in November 1997, and was confined to a village by order of the Swiss authorities. In April 1998, Mr Zaoui’s fax machine was confiscated and his internet access was blocked. The Swiss police “detained” the Zaoui family on 28 October 1998 and took them to a military base, from which they were flown by helicopter to Geneva and then escorted on a flight out of the country.

[53] The Authority is unable to determine whether Mr Zaoui was ever “put in a cell” during either of his visits to Switzerland. The RSAA decision refers to Mr Zaoui being “detained”, but it does not explicitly say whether he was placed in a cell on either occasion.

[54] As it is unable to categorically determine the accuracy of this point, the Authority declines to determine this aspect of the complaint.

“Of course he is [allowed to go back to Malaysia]”

[55] The Authority has considered this statement in the context of the surrounding discussion. It notes that the host also stated that Mr Zaoui was “living in perfect peace and happiness in Malaysia”, and that Mr Zaoui could go back there “tomorrow if he wants to pack his kit bag”. In the Authority’s view, the overall impression given to listeners was that Mr Zaoui was able to return to Malaysia at any time he liked, and that he would be perfectly safe upon arriving there.

[56] The RSAA accepted that Mr Zaoui avoided contact with Algerian residents in Malaysia because it might lead to “the risk of deportation”. It also recognised that Mr Zaoui learned that there had been discussions at the Algerian embassy about deporting him. He then went into hiding and arranged to travel to New Zealand.

[57] The Authority accepts that Malaysia is not a signatory to the Refugee Convention and has no obligation to grant Mr Zaoui asylum. If Mr Zaoui were to return to that country it seems clear that he would be subject to deportation to Algeria, as an international warrant for his arrest was issued at the time he was living in Malaysia. The Authority also considers it unlikely that Mr Zaoui possesses the necessary travel documentation to allow him to travel freely from New Zealand to Malaysia.

[58] In light of the impression given by the host that Mr Zaoui was able to return to Malaysia and live safely there with his family, the Authority finds that this statement was inaccurate and in breach of Principle 6 of the Code.  

Bill of Rights

[59] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast by CanWest RadioWorks Ltd on 11 November 2004 breached Principle 6 of the Radio Code of Broadcasting Practice.  It declines to uphold the other aspects of the complaint.

[60] Having upheld the complaint, the Authority invited submissions from the parties on orders. 

[61] Mrs Parre advised the Authority that she would prefer that no order be made, and in particular she did not want a statement broadcast if it included her name. She asked the Authority to delete her name from the decision in view of the “unpleasant experiences” encountered by those who had publicly supported Ahmed Zaoui.

[62] CanWest made no submissions on orders in light of the complainant’s specific request that no statement be made. However, it opposed the complainant’s request to have her name removed from the decision. The broadcaster submitted that much more than unspecified “unpleasant experiences” would be required to support a decision by the Authority to suppress a complainant’s name. CanWest noted that the Authority had only ever suppressed a complainant’s name in relation to privacy complaints.

[63] The Authority has considered the submissions advanced by the parties. While finding that the item was inaccurate on two points, the Authority considers that the breaches were not sufficiently serious to justify an order. It finds that the public release of its decision is sufficient in all the circumstances. 

[64] With respect to name suppression, the Authority notes that it is generally only sympathetic to requests for name suppression when a complaint involves an alleged breach of the complainant’s privacy. The Authority finds no compelling reasons on this occasion to depart from that general principle. The Authority declines the complainant’s request for name suppression.

Signed for and on behalf of the Authority

Joanne Morris
Chair
24 June 2005

Appendix

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

1.    Mrs Parre’s formal complaint – 3 December 2004
2.    Mrs Parre’s referral to the Authority – 14 January 2004
3.    CanWest RadioWorks Ltd’s response to the Authority – 4 March 2005
4.    Mrs Parre’s final comment – 24 March 2005
5.    Further correspondence from CanWest – 4 May 2005
6.    Further correspondence from Mrs Parre – 8 May 2005