BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 4 (controversial issues – viewpoints) – item focused on interviewee’s views – no discussion of a controversial issue of public importance – not upheld

Standard 7 (discrimination and denigration) – comments conveyed interviewee’s personal opinion – no discrimination or denigration – not upheld

Standard 5 (accuracy) – complainant did not specify any alleged inaccuracies or provide any evidence of inaccuracy – not upheld

Standard 6 (fairness) – no individual or organisation taking part or referred to treated unfairly – not upheld

Standard 1 (good taste and decency) – contextual factors – not upheld

Standard 8 (responsible programming) – interview would not have alarmed or distressed viewers – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   On the Larry Williams Drive Show, broadcast on Newstalk ZB on Wednesday 25 August 2010, the host interviewed Daniel Pipes, who was introduced with the following statement:

An expert on the Middle East is making a fleeting visit to this country. Daniel Pipes is the director of Middle East Forum and a well respected authority on Islam and the Middle East. He is also fluent in four languages, writes for a number of publications in the United States and around the world. Today he addressed a lunch at the Wellington Club where he spoke about his concerns with the growing Muslim population in Europe.

[2]   The following exchange took place between the host and Mr Pipes:

Host:
What concerns do you have over the growing influence of Islam in Europe?

Mr Pipes:
I see three possible scenarios for the future of Europe. One is, in one, the immigrant, the Muslim immigrant, Muslim population and the indigenous European Christian population get along well, symbiotically and then dynamically and so forth. This is the point of view of most Europeans - that somehow things will work out. But I feel that there are two alternative futures, which are much less rosy.

Host:   What are those futures?

Mr Pipes:
One is that the Muslim presence increases, Islamisation increases, Islamic law increases, and the historic civilisation of Europe disappears in the face of Islam and it becomes an Islamic continent. The other is that the Europeans, the indigenous Europeans say, “No. We don’t like this new Islamisation.” Then one sees civil insurrection, neo-Nazism, nativism, possibly violence.

[3]   Mr Pipes went on to say that he considered the second or third possible outcomes, which he termed “Muslims on top” and “Muslims repressed” respectively, the most likely to eventuate. He said that he feared the relationship between Muslims and Europeans was not going well, that this would become increasingly important to the population, and that it would lead to some kind of trouble.

[4]   Later in the interview, the host asked Mr Pipes why he thought it was not possible for Muslims and others in Europe to cohabitate, and Mr Pipes said, “I think that the problem lies, to a certain extent, on both sides”. After saying that a lot of bias existed on the part of Europeans towards Muslims, Mr Pipes made the following statement:

But even more on the other side, the Muslims are in large part represented by Islamist trends that seek to change Europe, that see European civilisation, indeed Western civilisation, as inferior and wish to replace it with their own, and this is of course highly problematic.

[5]   When asked whether he believed Muslims wanted to take over Europe, Mr Pipes stated that, while he “wouldn’t put it quite that way”, he believed that many Muslims, especially “the ones that are most active politically”, would like to see “a transformation of Europe to Islamic society”.

[6]   This was followed by a discussion about the emergence of Shariah law in various parts of Europe. Mr Pipes stated, “for example, in Britain, it is now legal to engage in polygamy, so long as the polygamous marriage was contracted in a country where it is legal”. He outlined what he saw as some of the reasons for this, including demographic decline due to Europeans not having enough children, as well as the collapse of Christianity in Europe. The following exchange then took place between the host and Mr Pipes:

Host:
So there’s a place in the UK for Shariah law and yet this law, as I understand it, doesn’t actually recognise much in the way of human rights anyway?

Mr Pipes:
No it doesn’t, and that’s the problem. It’s a law that hasn’t evolved. It is a medieval law and I hope it will evolve but it hasn’t evolved so far and I for one am not willing to accept Shariah in my life or to rule me, and I hope that you and your listeners won’t accept it either.

[7]   The interview also canvassed various countries’ reactions to the growing Muslim presence in Europe, for example, the host and Mr Pipes discussed banning the burqa and calls for anti-immigration laws in The Netherlands and France. It also touched on the debate over the New York Mosque at Ground Zero and the upcoming Middle East peace talks.

[8]   The host concluded the interview by stating, “It’s a worry about Islam and Muslim, and, you know, the future”.

Complaint

[9]   R Bush made a formal complaint to The Radio Network Ltd, the broadcaster, alleging that the programme breached standards relating to good taste and decency, controversial issues, accuracy, fairness, discrimination and denigration and responsible programming.

[10]   Ms Bush argued that the programme’s analysis of the growing Muslim population in Europe was “made without any presented basis, evidence or research”, and that to say that “Islam was taking over the world, when it is in fact being banned in many aspects (especially visual, e.g. burqa, minarets, headscarves etc) would no doubt be defined as controversial”. In her view, the interview amounted to a “warped one-sided discussion” that was designed to create a perception that Islam and Shariah law was “imminent in ruling the world/Europe and that people need to resist”. Ms Bush argued that TRN did not offer the “slightest alternative to Mr Pipes’ self-fulfilling conspiracies, and in fact presented only that offensive and misrepresentative possibility as being the only one existent.”

[11]   The complainant disputed the accuracy of Mr Pipes’ assertions, arguing that he was an “Islamophobe”, and that very few “serious academics” would agree with him. Ms Bush contended that the programme’s host did not question these assertions, but in fact “reinforced” them.

[12]   Turning to fairness, the complainant considered the programme was presented as an “expert analysis” and was unfair to “the minority community of those faithful, peaceful, and law abiding to the Abrahamic faith of Islam”. Similarly, she considered it was not in good taste or decent for a programme to be “one-eyed and entirely derogatory” of those adhering to Islam.

[13]   Ms Bush argued that the broadcast did not attempt to make valid distinctions between Islam and Muslims, first and subsequent generation Muslims, old/conservative Muslims and younger more integrated Muslims. Instead, she argued, the programme singled out all those belonging to Islam, which she said, “does not by itself do anything but of course [is enforced] rather through its followers”. The complainant argued that the programme’s analysis of Islam, presented as a “medieval religion” whose followers were “trying to take over the world”, amounted to “blatantly directed denigration of a specific faith”. In her view, the discussion did not constitute “factual or serious comment or analysis that could, in any authoritative, serious, mainstream way, be said to justify this wholesale denigration”.

[14]   The complainant argued that it was not responsible programming to “cause insult to a community already the subject of hate crimes, verbal and physical abuse, discrimination in everywhere from the workplace, to the public streets, and who are often easily visibly identifiable through religious attire or other visible signs”. She contended that “Islam/Muslims are already disproportionately targeted for abuse, discrimination etc based on events following September 11th, and various media reporting such as this programme”. The complainant considered the programme a “one-eyed defiling piece” against an already vulnerable and targeted community.

[15]   Referring to guideline 8e to the responsible programming standard, Ms Bush argued that the programme was presented in such a way as to cause unwarranted alarm in the interests of perpetuating “Islamophobic” analysis. This alarm was reinforced by the host’s closing comment that the growing Muslim population in Europe was “a worry”, she said.

Standards

[16]   Standards 1, 4, 5, 6, 7 and 8 and guidelines 5a, 5b, 6a, 7a and 8e of the Radio Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

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 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or

• does not mislead.

Guidelines

5a   The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

5b   Talkback radio will not usually be subject to the accuracy standard, except where the presenter makes an unqualified statement of fact.

Standard 6 Fairness

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

Guideline 6a

A consideration of what is fair will depend upon the genre of the programme (e.g. talk/talk back radio, or factual, dramatic, comedic and satirical programmes).

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

Guideline 7a

This standard is not intended to prevent the broadcast of material that is:

(i)   factual

(ii)   a genuine expression of serious comment, analysis or opinion; or

(iii)  legitimate humour, drama or satire.

Standard 8 Responsible Programming

Broadcasters should ensure that programme information and content is socially responsible.

Guideline 8e

Programmes should not be presented in such a way as to cause panic, or unwarranted alarm or undue distress.

Broadcaster's Response to the Complainant

[17]   TRN said that Newstalk ZB was an opinionated radio station that canvassed the views of experts and newsmakers on a wide variety of topics. The opinion was delivered in a variety of ways, it said, including from the host, the guest or the audience.

[18]   The broadcaster did not dispute that the discussion subject to complaint dealt with a controversial issue of public importance. However, it argued that it was a legitimate interview based on Mr Pipes’ personal beliefs, and approached from a particular point of view. TRN stated:

This discussion naturally had a slant based on Mr Pipes’ beliefs, but this was why he was invited to appear on the programme. He was in the country for speaking engagements, he is an expert on Middle East matters and was questioned across that topic.

[19]   TRN referred to guideline 4a to Standard 4, which provides that an assessment of whether a reasonable range of views has been allowed for takes account of whether the programme was approached from a particular point of view, and which states that talkback may be subject to a lesser requirement to present a range of views. For these reasons, the broadcaster declined to uphold the Standard 4 complaint.

[20]   Turning to discrimination and denigration, TRN argued that the analysis and opinion aspects of the interview were covered by guideline 7a(ii) to Standard 7, and it therefore declined to uphold that part of the complaint.

Referral to the Authority

[21]   Dissatisfied with the broadcaster’s response, Ms Bush referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[22]   Ms Bush reiterated her view that the broadcast “stigmatised literally millions around the world, including tens of thousands of New Zealanders who live as part of a peaceful minority and are, at least for the time being tolerated (until people who have listened to enough programmes like this one take the law into their own hands).”

[23]   The complainant argued that Mr Pipes was introduced as a “well-respected authority in Islam and the Middle East”, and that the broadcaster was “complicit in attempting to (mis)represent [Mr Pipes] as an authority, as asserted, without any regard to the reality of how he is viewed, not by Muslims, or any particular lobby or interest group, but by his peers, academics, news commentators, [and] the international press”. Ms Bush argued that it was inaccurate and misleading to introduce Mr Pipes as a well respected authority on Islam.

[24]   Ms Bush considered the discussion was superficial, and said that this was especially relevant in light of TRN’s assertion that the interview amounted to serious comment, analysis or opinion. The complainant reiterated that no distinction was made to enable listeners to ascertain which “segment/ideology/version of the hugely multifaceted religion of Islam they are talking about”. This distinction was “crucial to any assertion of Islam/Muslims taking over Europe, because each is quite different”, she said. In the complainant’s view, the broadcast suggested that Islam/Muslim as a whole were of concern. She argued that this “stigmatised” and “denigrated” the vast number of Muslims not only in Europe, but also in New Zealand, who were Muslim “but not of the Islamism that Mr Pipes has some apparent basis for concern about”. Furthermore, Ms Bush argued, the programme presented little evidence to support the contention that Muslims were “taking over” Europe.

[25]   Ms Bush reiterated her view that the host accepted Mr Pipes’ assertions without question, and played a somewhat supportive role in the interview. The complainant questioned whether the host’s concluding comment, “It’s a worry about Islam and Muslim, and you know, the future”, would be interpreted by listeners to be serious comment, analysis or opinion. She accepted that, while the host was entitled to form his own opinions, “For the sake of there being a standard, there has to be some sort of demarcation between informative (no matter how opinionated or slanted) analysis, and seemingly colluded agreement and conclusion between host and guest”.

[26]   The complainant considered that, while Western media tended to misrepresent Islam/Muslims, “that is in the context of non-expert comment, often fuelled by misinformation itself. The crucial difference here of course being, there was an asserted well-respected authority on Islam”.

[27]   Ms Bush argued that it was “irresponsible and indiscriminate” broadcasting against Islam and Muslims to use “alleged experts” to raise alarm about the growing Muslim population in Europe. She argued that responsible broadcasting should ensure that Muslims are not “callously and indiscriminately condemned” in the name of serious comment, analysis or opinion, or by relying on the “lesser requirement exemption” applying to talkback radio.

[28]   Ms Bush sought name suppression on the basis that Mr Pipes allegedly published the names of his critics online.

Broadcaster’s Response to the Authority

[29]   In regard to the credibility of Mr Pipes, TRN contended that he was generally regarded as a senior scholar who focused on radical Islam, and that it was fair to describe him as an expert in his field.

[30]   TRN referred to the complainant’s contention that the interview was superficial, and argued that this was a matter of opinion. It stated that “commercial radio requires a fairly rapid turnover of the segments and this applied to the [interview with Mr Pipes]”. It said that, while this factor meant that only cursory comment was made on some topics, “the thrust of the interview” such as the number of Muslims in Europe, was covered in some detail.

[31]   TRN argued that the host was entitled to take a “relatively supportive role” in the interview and that his “incursions” had some validity based on his approach, which was to extract the views of Mr Pipes, which, it said, would not generally have been known to the New Zealand audience.

[32]   The broadcaster stated that while it was satisfied that its decision based on Standards 4 and 7 was appropriate and revealed no breaches of those standards, it was prepared to further consider the complaint under Standards 5 and 6, which were raised by Ms Bush in her original complaint.

[33]   Turning to accuracy, the broadcaster argued that the interview could clearly be distinguished as analysis, comment or opinion as envisaged by guidelines 5a and 5b to that standard. It therefore declined to uphold the Standard 5 complaint.

[34]   With regard to fairness, TRN argued that guideline 6a to Standard 6 allowed some “leeway” for opinions and views expressed by participants. It accepted that Mr Pipes made “pointed comments about Islamic entry into Europe”, but argued, “this was clearly seen as one person’s view and in this case a person with knowledge and views on this issue”. For these reasons, TRN declined to uphold the Standard 6 complaint.

Authority's Determination

[35]   The members of the Authority have viewed 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.

Preliminary matter

[36]  Ms Bush sought name suppression on the basis that Mr Pipes allegedly published the names of his critics online. We note that name suppression is usually granted where an individual’s privacy has been breached or in other exceptional circumstances. We consider that no such circumstances exist in this case, and we therefore decline the request on this occasion.

Standard 4 (controversial issues – viewpoints)

[37]   Standard 4 states that when controversial issues of public importance are discussed 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.

[38]   Our first consideration in determining an alleged breach of Standard 4 is whether the item subject to complaint formed part of a news, current affairs or factual programme. On this occasion the item aired on Newstalk ZB, a station well-known for its talk radio, but which also includes news, music and sports. In our view, the Larry Williams Drive Show does not fall within the talkback genre, but is a current affairs programme that provides news updates and interviews, and therefore falls within the scope of Standard 4.

[39]   Next, we must consider whether the interview with Daniel Pipes discussed a controversial issue of public importance, typically defined by the Authority as something that would have a significant potential impact on, or be of concern to, members of the New Zealand public (e.g. Powell and CanWest TVWorks Ltd¹). To determine this, we first consider what was the principal focus of the item.

[40]   In our view, the item focused on Mr Pipes and his personal views, and we consider that the item’s introduction clearly defined the scope of the interview, when the host said:

An expert on the Middle East is making a fleeting visit to this country. Daniel Pipes is the director of Middle East Forum and a well respected authority on Islam and the Middle East. He is also fluent in four languages, writes for a number of publications in the United States and around the world. Today he addressed a lunch at the Wellington Club where he spoke about his concerns with the growing Muslim population in Europe.

[41]   The focus of the interview was further reinforced by the host’s opening question, when he asked Mr Pipes, “what concerns do you have over the growing influence of Islam in Europe?” We agree with TRN when it said:

This discussion naturally had a slant based on Mr Pipes’ beliefs, but this was why he was invited to appear on the programme. He was in the country for speaking engagements, he is an expert on Middle East matters and was questioned across that topic.

[42]   We consider that although Mr Pipes’ opinions could be said to be controversial and of public importance, the interview was clearly presented as Mr Pipes’ comment and analysis of the increased presence of Muslims in Europe and its potential ramifications, rather than as a “discussion” of a controversial issue of public importance for the purposes of Standard 4.

[43]   Accordingly, we decline to uphold this part of the complaint.

Standard 7 (discrimination and denigration)

[44]   Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community. “Denigration” has consistently been defined by the Authority as blackening the reputation of a class of people (see, for example, Mental Health Commission and CanWest RadioWorks²), and “discrimination” as encouraging the different treatment of the members of a particular group, to their detriment (for example, Teoh and TVNZ³).

[45]   It is also well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard (see, for example, McCartain and Angus and The Radio Network⁴).

[46]   As noted above at paragraph [40], we consider that the item focused on Mr Pipes and his personal views on the growing influence of Islam in Europe. Guideline 7a(ii) to Standard 7 states that the standard is not intended to prevent the broadcast of material that is a genuine expression of serious comment, analysis or opinion. We note that this does not mean that the standard can never be breached where the material subject to complaint falls within one of these categories. Rather, it means that where alleged discriminatory or denigrating material can be characterised as serious comment, analysis or opinion, a higher level of invective will be necessary to establish a breach (see, for example, Clayton and Triangle Television⁵). A higher threshold is required because democratic societies place a high value on these forms of expression, and the Authority has previously stated that the material would have to move towards the realm of hate speech or vitriol before the threshold would be crossed (e.g. Naqvi and The Radio Network⁶).

[47]   On this occasion, we consider that while Mr Pipes’ comments were critical of some aspects of Islam including Shariah law, they did not reach the threshold for encouraging discrimination against, or denigration of Muslims for the purposes of the standard. We therefore decline to uphold the Standard 7 complaint.

Standard 5 (accuracy)

[48]   Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.

[49]   Although the complainant questioned the overall accuracy of the programme, she did not specify any statements of fact in the item which she considered were inaccurate. As we have not been presented with any evidence upon which we could reasonably conclude that the item was inaccurate, we decline to uphold the Standard 5 complaint.

Standard 6 (fairness)

[50]   Ms Bush contended that the broadcast was unfair to “the minority community of those faithful, peaceful, and law abiding to the Abrahamic faith of Islam.”

[51]   We note that the fairness standard requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme. In our view, the complainant’s fairness concerns related to the perception of Muslims in general, as a religious group, and not to an individual or organisation to which the fairness standard applies. We therefore find that Standard 6 does not apply and we decline to uphold this part of the complaint. However, we note that Ms Bush’s concerns in this regard have been addressed in our consideration of Standard 7 above.

Standard 1 (good taste and decency)

[52]   The Authority has previously stated (e.g. Yeoman and TVNZ⁷) that standards relating to good taste and decency are primarily aimed at broadcasts that contain sexual material, nudity, violence or coarse language. However, the Authority has also said that it will consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.

[53]   While we acknowledge that some listeners might have disagreed with Mr Pipes’ opinions, we consider that there was nothing in the way he expressed those opinions that could be said to have threatened standards of good taste and decency. We therefore decline to uphold this part of the complaint.

Standard 8 (responsible programming)

[54]   The broadcaster did not address Standard 8 in its decision, although it was raised by the complainant. Ms Bush argued that the item was presented in such a way as to cause unwarranted alarm in the interests of perpetuating “Islamophobic” analysis, in breach of guideline 8e.

[55]   In our view, Mr Pipes was entitled to voice his opinions, and we do not consider that the interview was presented in a way that would have caused alarm or distress to listeners. We therefore decline to uphold the Standard 8 complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
23 November 2010

Appendix

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

1.           R Bush’s formal complaint – 25 August 2010

2.          TRN’s response to the formal complaint – 2 September 2010

3.          Ms Bush’s referral to the Authority – 4 September 2010

4.          TRN’s response to the Authority – 30 September 2010

¹Decision No. 2005-125

²Decision No. 2006-030

³Decision No. 2008-091

⁴Decision No. 2002-152

⁵Decision No. 2004-001

⁶Decision No. 2008-142

⁷Decision No. 2008-087