Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Overnight Talk Show – radio host played excerpt from television show The View in which Fox News commentator, Bill O’Reilly, stated that the mosque near Ground Zero was “inappropriate” and that “Muslims killed us on 9/11” – radio host discussed comments – allegedly in breach of law and order, controversial issues, accuracy and fairness standards
Standard 2 (law and order) – item did not encourage viewers to break the law or promote, condone or glamorise criminal activity – not upheld
Standard 4 (controversial issues – viewpoints) – listeners would not expect a range of balanced views from a talkback programme – no discussion of a controversial issue of public importance – not upheld
Standard 5 (accuracy) – host’s comments amounted to opinion and analysis – not upheld
Standard 6 (fairness) – no person or organisation treated unfairly – not upheld
This headnote does not form part of the decision.
 During an item broadcast on the Overnight Talk Show on Newstalk ZB at 2.45am on Saturday 16 October 2010, the host commented on and played an excerpt from an American television show, The View, in which Fox News commentator, Bill O’Reilly, expressed his views on the mosque being built near Ground Zero.
 The radio host introduced the item by giving a brief summary of what happened on The View. He stated that Mr O’Reilly had appeared on the chat show to talk about the “so called 9/11 mosque” and that his views had offended the female hosts, causing one of them to walk off stage. The host then played the excerpt, in which Mr O’Reilly stated that the mosque was “inappropriate” because it went against the wishes of “9/11 families” and because “Muslims killed us on 9/11”. The female hosts could be heard objecting to the comments and it was apparent that some of them had walked off the stage.
 After the excerpt was played, the host stated, “That was the interesting thing, the comment that blew it all up, if you missed it, was Bill O’Reilly saying, ‘Muslims killed us on 9/11’”. The host expressed his views on the comments, stating:
This is not an attack on the Catholic Church alright, but I’m using the Catholic Church to show the idiocy of the comment of Bill O’Reilly. The people who flew those planes into the twin towers professed a Muslim faith.
To say that Muslims killed us on 9/11 is the same as saying that Catholics killed millions of Jews because Adolf Hitler professed a Catholic faith. It’s exactly the same. Now obviously if you are part of the Catholic Church, please I don’t say this to offend you, I say this to show the lunacy of saying “Muslims killed us on 9/11”. It’s as ridiculous as saying Catholics killed millions of Jews.
 The host briefly discussed the implications resulting from views such as those expressed by Mr O’Reilly, stating that such “propaganda” perpetuated the racial divide between Christians and Muslims. The host concluded the item by inviting listeners to comment on Mr O’Reilly’s statements.
 Lyn Milnes made a formal complaint to The Radio Network (TRN), the broadcaster, alleging that item breached broadcasting standards relating to law and order, controversial issues, accuracy and fairness.
 The complainant argued that the excerpt from The View was re-broadcast on the radio programme with the intention of “ridiculing it and getting the radio audience to laugh at it”. Ms Milnes argued that TRN’s possession and use of the excerpt for this purpose was illegal under the New Zealand Copyright Act 1994 and amounted to a breach of the law and order standard.
 The complainant argued that the broadcast was unbalanced because only that part of the excerpt that supported the radio host’s perspective was broadcast. The host’s introductory and concluding comments were biased, she argued, and viewers were not presented with alternative viewpoints, which “clearly existed [in] the material itself”.
 Turning to accuracy, the complainant maintained that the item was not “news”, but said that if it was news it lacked impartiality because the “selected clip” was not an accurate portrayal of the “original event”.
 Similarly, Ms Milnes argued that the item was unfair because the broadcaster “deliberately distorted the nature of the original event [on The View] and the overall views expressed” by selecting the comments broadcast.
 Ms Milnes raised Standards 2, 4, 5 and 6 of the Radio Code of Broadcasting Practice in her original complaint. Guidelines 6a and 6b are also relevant. These provide:
Standard 2 Law and Order
Broadcasters should observe standards consistent with the maintenance of law and order.
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.
Standard 6 Fairness
Broadcasters should deal fairly with any person or organisation taking part or referred to.
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).
6b Broadcasters should exercise care in editing programme material to ensure that the extracts used are not a distortion of the original event or the overall views expressed.
 The broadcaster maintained that the excerpt used was an accurate representation of what had occurred on The View and had not been unfairly edited. TRN said that it was entirely legitimate for it to use the excerpt.
 Further, TRN argued that talkback radio was a robust environment where topics were set up for discussion and the audience was given an opportunity to respond, which it argued, “was exactly what happened in this instance”. The Overnight Talk Show programme covered a news issue, hosts of this genre typically took up different positions on those issues, and the audience had a right to agree or disagree, it said.
 Dissatisfied with the broadcaster’s response, Ms Milnes referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. The complainant maintained that the item breached Standards 2, 4, 5 and 6.
 Ms Milnes reiterated her view that TRN’s use of the excerpt was illegal and was inconsistent with the maintenance of law and order in breach of Standard 2.
 Turning to Standard 4, Ms Milnes argued that the host’s introductory comments were “denigrating” and referred only to Mr O’Reilly’s statements and not to other content on The View. The complainant said that she had called Newstalk ZB to “protest” but had been cut off and her statement not broadcast.
 Looking at accuracy, Ms Milnes maintained that the broadcaster used the excerpt in a way that distorted the true nature and content of The View. She said that while the Overnight Talk Show could be broadly classified as talkback radio, the broadcaster had treated it strictly as current affairs, and it was therefore subject to the accuracy standard.
 Ms Milnes reiterated her argument that the programme was unfair and had breached guideline 6b to Standard 6.
 The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Ms Milnes argued that the broadcaster’s use of The View excerpt amounted to “copyright theft” in breach of the Copyright Act 1994.
 We note that in Giles and TVNZ,1 the Authority stated that Standard 2 “does not require broadcasters to comply with all legal requirements; rather it requires respect for the principles of the law.” It is not our function to determine whether TRN complied with New Zealand copyright legislation. Rather we must determine whether the broadcast encouraged viewers to break the law or otherwise promoted, glamorised or condoned criminal activity (see, for example, Findlay and TVNZ2). We do not consider that TRN’s use of the excerpt came within any of these categories because the host simply played the excerpt to encourage discussion. Accordingly, we find that there is no basis for upholding a breach of Standard 2 and we decline to uphold this part of the complaint.
 Standard 4 requires broadcasters to present significant points of view when controversial issues of public importance are discussed in programmes. Guideline 4a to the standard acknowledges that talkback programmes may be subject to a lesser requirement to present a range of views.
 In our view, the item subject to complaint was unambiguously opinion-based. The host was not purporting to discuss whether Muslims “killed us on 9/11” or whether a mosque should be built near Ground Zero. Rather, he was analysing the comments made by Mr O’Reilly on The View and giving his perspective on the issue. The programme did not discuss a controversial issue of public importance, and we therefore decline to uphold a breach of Standard 4.
 Standard 5 requires broadcasters to 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. Guideline 5a to Standard 5 exempts statements which are clearly distinguishable as analysis, comment or opinion. Talkback radio will not usually be subject to the accuracy standard except where the presenter makes an unqualified statement of fact (guideline 5b).
 As noted above, the item subject to complaint consisted of the host’s analysis of the excerpt and his personal opinion on Mr O’Reilly’s views. We do not consider his comments amounted to unqualified statements of fact, and we decline to uphold the Standard 5 complaint.
 Standard 6 requires broadcasters to deal fairly with people and organisations taking part or referred to in programmes. Guideline 6b to the fairness standard states that care should be taken when editing programme material to ensure that the extracts used are not a distortion of the original event or the overall views expressed.
 Ms Milnes did not specify who she thought had been treated unfairly, and only argued that TRN deliberately distorted the true nature of the events on The View by selecting the clips broadcast. We consider that the excerpt was an accurate portrayal of what occurred on The View, and cannot identify unfairness to any individual taking part or referred to on the Overnight Talk Show. Accordingly, we decline to uphold the fairness complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
22 February 2011
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Lyn Milnes’ formal complaint – 14 November 2010
2 The Radio Network’s response to the complaint – 17 November 2010
3 Ms Milnes’ referral to the Authority – 3 December 2010
4 TRN’s response to the Authority – 14 December 2010
1Decision No. 2002-073
2Decision No. 2008-100