BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
91ZM – Countdown – Drive Show – comments about bus rage on buses operated by Stagecoach in Auckland – presenter (Stables) advised passengers not to take out frustrations on bus drivers but to damage buses – some broadcasts from buses – passengers encouraged to dance (rage) – failure to maintain standards consistent with law and order – unsuitable for children – complaint under Principle 2 and Principle 7 and Guideline 7b upheld by broadcaster – agreed to broadcast apology and pay half complainant's costs – unable to agree on wording of apology

Findings
Action taken insufficient

Order
Broadcast of statement including the words "reckless, irresponsible and inappropriate"

This headnote does not form part of the decision.

Summary

[1] "Bus rage" on buses operated by Stagecoach in Auckland was an issue dealt with on 91ZM during Countdown broadcast on Sunday afternoon 6 April 2003, and in comments on the Drive Show, broadcast at 4.20 and 4.50pm on Wednesday 9 April. In the Countdown programme, the presenter, Stables, advised passengers not to take out their frustrations on bus drivers but to damage buses. Part of the Drive Show repeated the comments made on Countdown and part involved broadcasts from buses in which passengers were encouraged to "rage" by dancing.

[2] Transportation Auckland Corporation Limited (Stagecoach) complained to The Radio Network Ltd (TRN), the broadcaster, that the broadcasts, by encouraging criminal behaviour, breached the standards relating to the maintenance of law and order. Arguing that children were likely to be influenced by the broadcasts, the complainant also contended that the broadcasts breached the requirement for broadcasters to be mindful of the effect of programmes on children.

[3] TRN upheld the complaints that the broadcasts suggesting damage to the buses breached the standards. However, on the basis that they were intended to be satirical, it did not accept that the broadcasts from the buses themselves breached the standards. TRN offered to broadcast an apology and, in addition, later agreed to pay half the complainant's costs as well.

[4] However, as Stagecoach and TRN were unable to agree on the wording of the apology, Stagecoach referred the matter to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaints that the statement proposed by the broadcaster was insufficient.

Decision

[5] The members of the Authority have listened to a tape of part of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.

The Programme

[6] The abuse of bus drivers on Stagecoach buses by commuters was the subject of comments by the presenter, Stables, broadcast on 91ZM on Sunday afternoon 6 April 2003, and again at 4.20pm and 4.50pm on Wednesday 9 April. The presenter advised commuters not to take out their anger on drivers but on the bus. He suggested "upholstery modification", the use of a "vibrant vivid" to mark seats or walls, and there was reference to pulling the lever of the emergency exit.

The Complaints

[7] Transportation Auckland Corporation Ltd, known as Stagecoach, complained to TRN that the comments were a "flagrant breach" of the provision which required broadcasters to maintain standards consistent with the maintenance of law and order.

[8] The complainant stated that the presenter encouraged commuters not to take their frustrations out on the drivers, but to damage the buses instead, commenting at one point:

If Stagecoach pisses you off, this is a way to get back at them.

[9] Stagecoach also argued that the broadcasts breached the requirement in Standard 7, Guideline 7b that broadcasters are to be mindful of the effect of any programme on children, stating:

We consider that inciting wilful damage to the property of Stagecoach at any time to be highly irresponsible, even more so at a time of the day when children are being released from primary and secondary school. Primary and secondary school students are easily influenced by others (in particular radio personalities and celebrities) and are unlikely to appreciate the consequences of their actions if they were to follow the encouragement of that radio presenter.

[10] Stagecoach contended that the comments constituted a criminal offence. It also referred to broadcasts where individuals were heard boarding buses and encouraging passengers to stand up and dance. That occurred, it wrote, as part of a practical joke about "bus rage", but involved harassment of individuals and a threat to the provision by Stagecoach of a safe environment.

[11] The complainant sought that an on-air formal apology be made by the presenter for the offensive comments, after it had approved it.

Further Correspondence

[12] The complainant sought a response within seven days. However, apparently because of some inadequacy in the broadcaster's internal processes, for which it apologised to the complainant, TRN did not reply until two weeks had elapsed.

The Standards

[13] TRN assessed the complaints under the broadcasting standards nominated by the complainant. Principles 2 and 7, and relevant Guidelines, of the Radio Code of Broadcasting Practice provide:

Principle 2

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the maintenance of law and order.

Principle 7

In programmes and their presentation, broadcasters are required to be socially responsible.

Guidelines

7b  Broadcasters shall be mindful of the effect any programme may have on children during their normally accepted listening times.

The Broadcaster's Response to the Complainant

[14] TRN explained, first, that the broadcasts complained about involved some suggested action and, secondly, some of the broadcasts were live and made from a number of buses. It wrote:

The ZM Drive show with Stables is a fun radio show where the host uses heavy satire and parody to highlight issues of note. The Sunday broadcast is a three-hour countdown programme. In these broadcasts he took up the well-publicised subject of ‘bus-rage'.

[15] During the broadcasts, TRN advised, the presenter had suggested that people should take their rage out on the bus, not the bus driver. The comments, it found, were in breach of both Principles 2 and 7.

[16] As for the three live broadcasts from a bus, TRN explained that they had involved two bus trips and each broadcast had lasted for some 30 seconds. They had been regarded with "great amusement" by the passengers and neither driver had complained. TRN regarded the broadcasts from the buses as "clearly satire" and declined to uphold them as a breach of Principle 7.

[17] TRN stated that it intended to broadcast an apology for the presenter's comments on a forthcoming Wednesday and Sunday, and enclosed a proposed statement.

Further Correspondence

[18] Stagecoach advised that it agreed with most of TRN's conclusions. However, it did not accept that encouraging the public to damage property could be excused as satire. It enclosed a redrafted apology to be read by the presenter involved. It also asked to approve the apology once it had been recorded, and sought its full costs.

[19] In response, TRN advised that it did not accept the redrafted statement, and enclosed a new version. It acknowledged that the apology would be pre-recorded and made by the presenter involved. It did not agree to pay the complainant's full costs, but stated "as a gesture of goodwill", it was prepared to pay half the complainant's costs.

[20] Stagecoach declined to accept the revised apology as, it contended, it failed "to address the serious nature" of the presenter's actions. It argued that the presenter had to acknowledge that his actions "were reckless and irresponsible". It agreed, also as a "gesture of goodwill", to accept half its costs, provided TRN made a payment to charity of an amount equal to half the total costs, and that the payment was acknowledged in the statement.

[21] In response to this letter, TRN maintained that the apology which it had drafted did not trivialise the matter under discussion. It added:

In dealing with on air apologies over many years if the level of self-flagellation forced on the host is beyond what could be construed as reasonable and appropriate then the apology is markedly diminished.

[22] TRN insisted that the matter was being treated with "the utmost seriousness", that it had counselled the presenter and, unlike its normal procedures, it had required him to broadcast the apology. It agreed to pay half the complainant's costs, but refrained from agreeing to make a payment to charity until it was aware of the sum involved.

The Referral to the Broadcasting Standards Authority

[23] In the referral, Stagecoach outlined the details of the complaints, and the negotiations which had taken place after TRN had upheld the complaints. It had not been possible, its solicitors noted, to agree on the wording of the apology, contending:

The suggested texts provided by The Radio Network Ltd appear to be an exercise in public relations rather than any real attempt to address the concerns of our client. Our client requested that Stables acknowledge that at a minimum his comments were reckless and irresponsible, however, any references to the reckless and irresponsible were deleted from the text with softer words such as ‘inappropriate' suggested as an alternative.

[24] Stagecoach also considered that TRN's assertion that the comments were satire were wrong, reporting that it could not agree that the criminal act of inciting damage to its property was satirical humour. TRN had not appreciated, it said:

 a. That the comments made by Stables were criminal;

 b. That by dual broadcasts of similar comments, they were encouraging as part of a
     continued campaign, damage to our clients' property;

 c. That the repair of such damage is often difficult;

 d. That the repair of such damage causes great expense to the Company; and

 e. That the employees of Stagecoach go to great lengths to ensure that the buses are
     maintained in good condition, and were extremely upset and disturbed by Stables' action.

The Broadcaster's Response to the Authority

[25] TRN pointed out that a "major" part of the complaints had been upheld, an apology had been offered, and a commitment made to meet half the costs. It also stated that a recording was not available for part of the broadcast in view of the number of days which elapsed between the broadcast and actioning the complaint.

[26] Nevertheless, on the evidence available, TRN said, it did not appear that the presenter had advised passengers to "rip up seats" or leave chewing gum in the seats. Moreover, there was no evidence that the passengers, while surprised at the live broadcasts, were disturbed by them.

The Complainant's Final Comment

[27] In its final comment, Stagecoach reiterated its concern that the broadcaster had not taken the complaints seriously. Repeating its concerns that its drivers often worked in a difficult and stressful situation, Stagecoach said that they took pride in ensuring the cleanliness and safety of the buses. Pointing out that the bus was the driver's work place, Stagecoach maintained that the roving reporter's broadcasts, albeit designed to be fun, were unacceptable behaviour. It also noted that a driver would have been unlikely to interfere as it could result in the broadcast of a disparaging comment.

[28] Stagecoach acknowledged that TRN had offered an apology, but repeated that the word "inappropriate" to describe the presenter's behaviour was "completely inappropriate". While it was prepared to compromise on the adjectives used, Stagecoach believed it should reflect the recklessness and criminality of the behaviour.

[29] Stagecoach referred to media coverage of other incidents in which the same presenter had been involved and:

For these reasons, we consider that serious action needs to be taken against Stables and the Radio Network. Stables continually shows little or no regard for the property of others, and often encourages acts that endanger public safety. Although the Radio Network dismisses such encouragement as "satirical humour", we consider that unless an example is made of [the presenter], such incidents will continue unabated. To describe [the presenter's] conduct as "satire" is sick and gobellesque.

The Authority's Determination

[30] The Authority's task in regard to this complaint is to decide whether the statement and apology, which the broadcaster has agreed will be read by the presenter who made the remarks complained about, will describe the presenter's comments as "inappropriate" (as the broadcaster contended), or as "reckless, irresponsible and inappropriate" (as the complainant maintained). The broadcaster believed that the word "inappropriate" was an adequate summary, while the complainant argued that the comments, while inappropriate, were in addition "reckless and irresponsible". In reaching its decision, the Authority has focused on the current complaint and has not taken into account the allegations made by the complainant in regard to the presenter's actions on other occasions.

[31] The broadcaster was unable to provide the Authority with a tape of the broadcast when the presenter first made the comments complained about on Countdown because the complaints, due to the inadequacies of the broadcaster's internal processes, were not actioned until after the tape had been re-used. However, the broadcaster accepted in large part that the presenter had made the comments to which the complaints referred.

[32] Having considered the material, the Authority accepts the complainant's contention that the use of the adjective "inappropriate" by itself does not convey the seriousness of the presenter's remark. The Authority has considered what other words would adequately convey the complainant's concerns and agrees with the complainant that "reckless, irresponsible and inappropriate" better reflect the presenter's behaviour.

[33] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision No: 2002-071/072, the Authority is firmly of the opinion that the limits of the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provision of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion. For the reasons given in this decision, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of these complaints, including the nature of the complaints

For the reasons above the Authority upholds the complaints that the action taken by The Radio Network Ltd, having upheld the complaints that broadcasts on 91ZM on 6 and 9 April 2003 breached Principles 2 and 7 of the Radio Code of Broadcasting Practice, was insufficient. The Authority imposes the following Order.

Order

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders The Radio Network Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld. The statement, to include the words "reckless, irresponsible and inappropriate", shall be approved by the Authority and broadcast on a day and at a time to be approved by the Authority.

The Authority draws the broadcaster's attention to the requirements of section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and with the complainant in the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
28 August 2003

Appendix

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

1. Stagecoach New Zealand Ltd's Complaint (through its solicitors) to The Radio Network Ltd
   – 2 May 2003
2. Stagecoach New Zealand Ltd's Complaint (through its solicitors) to The Radio Network Ltd
   – 13 May 2003
3. Stagecoach New Zealand Ltd's Complaint (through its solicitors) to The Radio Network Ltd
   – 14 May 2003
4. TRN's Acknowledgment of the Complaint – 15 May 2003
5. Stagecoach's Acknowledgment – 15 May 2003
6. TRN's Response to the Formal Complaint – 15 May 2003
7. Stagecoach's Reply to TRN – 20 May 2003
8. TRN's Response to Stagecoach – 22 May 2003
9. Stagecoach's Reply to TRN – 26 May 2003
10. TRN's Response to Stagecoach – 27 May 2003
11. Stagecoach's Referral to the Broadcasting Standards Authority (through its solicitors)
    – 12 June 2003
12. TRN's Response to the Authority – 17 June 2003
13. Stagecoach's Final Comment – 9 July 2003