BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Michael Laws Talkback – host spoke about shooting journalists – allegedly in breach of good taste and decency, law and order, and violence standards

Findings
Standard 1 (good taste and decency) – specific nature of the comments had clear potential to distress and offend, whether or not they were intended to be taken literally – upheld by majority

Standard 2 (law and order) – host was not seriously encouraging listeners to shoot journalists – not upheld

No Order

This headnote does not form part of the decision. 

Background

[1]  Talkback radio is an important part of broadcasting in New Zealand and has been for a long time. Research which we have conducted has shown that about one-third of the adult population in New Zealand listens to talkback radio from time to time.¹ They do so for different reasons. For some it is for stimulation and challenge, for others it is for entertainment. Some listen for companionship and so that they can feel as if they are part of a community and yet others do so to be informed and educated. The reach of talkback radio is extensive and its place in broadcasting is such that we need to be careful about controlling what is broadcast.

[2]  Our research shows, and it is a matter of commonsense, that the expectations of the listening public are that the hosts of talkback radio will endeavour to maintain proper standards. There is a community expectation that a proper balance between standards and freedom of expression will be achieved. Talkback radio is not to be a standards-free zone.

[3]  What callers say is difficult to control and inevitably there will be things said by callers which are unacceptable according to usual standards. This is recognised as being a consequence of the spontaneous nature of talkback radio and it is regarded as being an acceptable consequence. Listeners do not expect the hosts of talkback radio to engage in unacceptable behaviour and we agree that they should not do so. The question however is, what is unacceptable.

[4]  Michael Laws is a well known host on a regular morning talkback radio programme broadcast by RadioWorks. Mr Laws was previously a national politician and was more recently a local government mayor. He is known for comments which at times are extreme.

The Broadcast

[5]  On 18 November 2011 Mr Laws was conducting one of his usual morning talkback radio sessions. The topic he was discussing was the “tea tapes” which had become a national political issue. In the course of raising this topic for discussion, Mr Laws made the following comments:

We are discussing this morning, really one of the great issues of the campaign, but unfortunately you won’t have to hear it because the media have gone mad, rabid. If I had a gun I’d shoot them, put them out of their misery, because they have gone rabid and they may infect others.

And that’s the thing about the media, have you noticed? That one – the Herald on Sunday for example which is rabid all the time, no idea why somebody just hasn’t taken a shotgun there and cleaned out the entire news room. But the infection has spread, so it goes to the Herald of course it does, and it infected TV3, well they’re in Auckland of course it does, and then it sort of spreads from there.

This is the reason why, if you see a rabid journalist, you shoot them straight away, and then the infection doesn’t spread. But look at them now, you know they’re all completely mad, so you know, you just lay your bait, put down a bit of cyanide somewhere in a news room, and you know just hope there isn’t too much collateral birdlife that’s killed.

The Complaint and the Response

[6]  Simon Blissett made a formal complaint to the broadcaster alleging that the host’s “general derogatory remarks [that] all news media should be shot” and the host “encouraging mass murder” breached Standards 1 (good taste and decency), 2 (law and order) and 10 (violence). The Radio Code does not contain a violence standard so the broadcaster when faced with the complaint addressed Standards 1 and 2. The broadcaster declined to uphold the complaint for a number of reasons which we will broadly summarise as follows:

• Talkback is a robust and provocative forum. While the opinions of Mr Laws could be considered extreme by some listeners, there is a general expectation on the part of listeners that talkback hosts will make narrow, one-sided, hyperbolic and controversial statements for effect and to generate discussion and debate.
• Regular listeners to Mr Laws would have become accustomed to this sort of thing and would not find it surprising.
• The statements were not beyond the boundaries of what the usual audience would expect.
• Most people listening to the broadcast in its context would not have understood it as seriously promoting any criminal activity.
• There was a humorous component to what Mr Laws said.

The Standards

[7]  The most relevant standards are Standard 1 (good taste and decency) and Standard 2 (law and order). Standard 1 requires broadcasters to “...observe standards of good taste and decency”. Standard 2 requires broadcasters to “...observe standards consistent with the maintenance of law and order”.

Majority View (Peter Radich, Leigh Pearson and Te Raumawhitu Kupenga)

[8]  This complaint has resulted in there being a decision by the majority of this Authority and a dissenting view by a minority. We will set out the views and the decision of the majority and then follow these with the dissenting views of the minority.

Standard 1 (good taste and decency)

[9]  Standard 1 of the Radio Code states that “Broadcasters should observe standards of good taste and decency”. Guideline 1a to the standard states, “Broadcasters will take into account current norms of good taste and decency, bearing in mind the context in which any language or behaviour occurs and the wider context of the broadcast e.g. time of day, target audience”.

[10]  The purpose of the good taste and decency standard is to reflect and preserve community norms of decorum and civility and to protect viewers from material that may disturb or offend them. While complaints about good taste and decency generally focus on four main concerns (bad language, sexual material, nudity and violence), the standard is wider and the Authority will consider it in relation to any broadcast that discusses material in a way that is likely to cause offence or distress.²

[11]  When something is broadcast which in its context is outside current norms of good taste and decency, that does not necessarily mean that the broadcast will be unacceptable. There is a balance to be struck and an integral part of the balancing process involves the consideration of the concept of freedom of expression.

Freedom of Expression

[12]  The principles relating to freedom of expression have been expressed in many ways on many occasions. As an example, we give some words taken from the judgment of Lord Neuberger MR in Gaunt v The Office of Communications and Other:³

Freedom of expression, that is the right to say what one wants and how one wants, and to impart and to receive information and ideas, is a fundamental human right. In the light of the power of language, ideas and information, freedom of expression underpins a free society. It has been described as “the lifeblood of democracy” by Lord Steyn in R v Secretary of State for the Home Department ex p Simms. Freedom of expression is not by any means a purely cosy right. As Sedley LJ said in the Divisional Court, “freedom only to speak inoffensively is not worth having”.

However, like virtually all human rights, freedom of expression carries with it responsibilities which themselves reflect the power of words, whether spoken or written. Hence the need for some restrictions on freedom of expression, as recognised by Article 10.2, and indeed by the reservation of the right of governments to control broadcasting in Article 10.1. Having said that, as the limited number of circumstances identified in Article 10.2 recognises, any attempt to curtail freedom of expression must be approached with circumspection.

[13]  In New Zealand and through most of the western world, principles of freedom of expression are enshrined in the law and are required to be given the respect they deserve. Our entitlement to interfere with and limit any broadcast is governed by the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act) and if we are to impose limitations on the freedom of expression which this Act protects, we must demonstrate that they are justified. The higher the degree of importance of what is being broadcast, the greater the justification must be.

[14]  The Broadcasting Act 1989 requires us, in certain circumstances, to place a limit on what is able to be broadcast on radio and television. Broadcasters and this Authority are responsible for the maintenance of standards which, amongst other things, are consistent with the observance of good taste and decency and the maintenance of law and order. Plainly there are limits on what is able to be broadcast having regard to the requirement to observe good taste and decency and to maintain law and order.

[15]  In the case of good taste and decency, identifying the current acceptable norms in the context and then having regard to principles of freedom of expression to determine what is acceptable, can often be challenging and difficult. In reaching an outcome, consideration is to be given to the harm that a broadcast may cause and the harm, in a general sense, that may be caused by limiting the freedom of broadcasters and others to express themselves and the freedom of their audiences to receive what they broadcast. Harm need not be direct harm and it can extend to the harm which is done by standards of good taste and decency not being observed. We are all, in our lives, subject to limitations on our rights of freedom of speech and expression.

[16]  It is not the case in New Zealand that the principles of freedom of expression amount to a licence given to broadcasters to offend the appropriate norms of good taste and decency. In some situations, the value of the speech will be such that the importance of there being a freedom to express what is being said means that the cost of the resulting offensiveness has to be carried by society. Obscenities or intimidatory expressions have little or no value which needs to be protected but other expressions such as political, cultural or religious expressions are given a higher value and the liberty to express views of this kind is more worthy of protection.

[17]  These testing concepts have been considered a number of times by courts in New Zealand in recent years. The need for there to be a balancing exercise and for any limitation to be no greater than necessary was noted by Elias CJ in Hansen v R [2007] NZSC 7 when she said in relation to the issue of justified limitations on rights and freedoms under the Bill of Rights Act:

The objective sought to be achieved by the limiting provision must be of sufficient importance to warrant infringement of a fundamental human right. The limitation must be no more than is reasonably necessary to achieve the purpose. The objective against which a provision is justified cannot be wider than can be achieved by the limitation of the right.

[18]  Having made these general comments about freedom of expression, we approach the request of the complainant with caution or, as Lord Neuberger said, “with circumspection”. We do not wish to interfere with the rights of broadcasters lightly. Nor do we wish to put in place limitations which on a long and broad view cannot be justified and are harmful in themselves. We recognise the importance of openness in communications. It is against this background that we address the specifics of the complaint.

Analysis of Comments by Mr Laws

[19]  The comments made by Mr Laws need to be examined carefully, which we have done. These are some relevant points:

• The first comment was that the media had gone mad and become rabid. The target of this comment was the media generally. The reference to the word “rabid” raised the metaphor of a mad dog.
• Mr Laws then said generally in relation to the media that if he had a gun he would shoot the media to put them out of their misery and to stop them infecting others. To this point, the comments were generally directed at a large group of people.
• Mr Laws then became more specific. He focused on the people in the newsroom at the Herald on Sunday. He said that he could not understand why somebody had not already taken a shotgun into the newsroom and cleaned out (killed) the entire news room.
• Mr Laws then stated that the so-called infection had spread from the Herald to TV3 and it would spread from there.
• He then said to listeners that if they see a rabid journalist they should shoot them straight away so that the infection does not spread.
• Mr Laws concluded by saying that cyanide could be placed in newsrooms to kill journalists.

[20]  We have looked at the comments of Mr Laws in three parts but we emphasise that ultimately, what was broadcast needs to be looked at as a whole:

• In the first part, the comments introduce the mad dog metaphor and apply this generally to the media.
• In the second part, the comments become much more specific and graphic. Mr Laws said that he had “...no idea why somebody just hasn’t taken a shotgun [to the newsroom of the Herald on Sunday] and cleaned out the entire newsroom”. At this point Mr Laws had narrowed the focus of his comments to a small group of identifiable local people.
• In the third part, Mr Laws returns more directly to the mad dog metaphor and then introduces a type of pest destruction metaphor and all of this is reasonably generic and non-specific.

[21]  We have carefully listened to the sound and tone of the words on a number of occasions. The words were delivered in flat, expressionless speech. It was as if Mr Laws was reading from a pre-prepared text although we do not know whether in fact he was.

Good Taste and Decency

[22]  It is our function to see that proper standards of good taste and decency in broadcasting are maintained. In our opinion the words which Mr Laws used and the whole of his statement plainly raise the question of whether this sort of language is in keeping with reasonable standards of good taste and decency in the particular context in which they were uttered.

[23]  We accept that Mr Laws was not intending that any listener should follow his advice. His comments were so extreme as not to be taken literally by anybody other than somebody who was mentally unbalanced. We do not think, however, that just because Mr Laws did not intend these comments to be taken literally, and no sane person would take them seriously, that is the end of the matter, for reasons which we will explain.

[24]  When we look at the different parts of the statement we see some different levels of acceptability:

• In the first part of the statement Mr Laws was speaking in general terms in relation to the whole of the media. He was referring to the New Zealand media. He was speaking in a metaphorical, albeit unpleasant, way by likening the New Zealand media to mad dogs and saying that he would shoot them to stop them infecting others. Had he gone no further we would have seen those comments as a type of ranting which some more extremist talkback hosts engage in and we would have seen it as being within the present norms of acceptable behaviour in that context. But Mr Laws went further.
• In the second part of his statement Mr Laws took his focus from a general focus down to the specific journalists in the newsroom of the Herald on Sunday. He stated that he had no idea why somebody had not taken a shotgun and killed all of these people. Then he said that the Herald people had contaminated the TV3 media people as well.
• In the third segment Mr Laws returned to some generalised comment about journalists who he said should be shot or poisoned.

[25]  When the whole of the statement is heard or read together it is, in our opinion, contrary to current norms of good taste and decency in the context of talkback radio. We will set out our reasoning later. If we find that a statement by Mr Laws was not in keeping with standards of good taste and decency then that is not enough to take us to the point where the complaint can be upheld. Instead, we must judge the value of what was said by Mr Laws and determine whether, having regard to its value, it is speech which we judge should not be spoken in a broadcast of this kind.

Previous Decisions

[26]  We have addressed complaints in relation to talkback radio on a number of occasions previously. In some we have found the language used to be unacceptable and in others, although the language has been challenging, we have declined to interfere.

[27]  The following are some examples of complaints in relation to radio and television talkback programmes and how these complaints have been dealt with:

• A description of people of the exclusive Brethren faith as being mad, ignorant, bad neighbours and probable child abusers who should be bred out of the human race, was found to be unacceptable.⁴
• A description by a talkback host of Fire Service spokespeople as cocks, idiots, morons and arseholes, was found to be unacceptable.⁵
• A television host saying that obese children “should be taken away from their parents and put in a car compactor”, was found to be acceptable.⁶
• A television host commenting, in relation to prisoners being handed over to Afghan security forces, “does anyone care if we put drills through the heads of these people?” and, “we need to get out the Stanley knives”, was found to be acceptable.⁷
• A television host questioning the correctness of a previous Governor-General’s appointment on account of his race, was held to be unacceptable.⁸ and
• A television host criticising the state of preparedness of the facilities for the Indian Commonwealth Games by ridiculing the name of an Indian minister was held to be unacceptable.⁹

[28]  These decisions demonstrate that the line between what is acceptable and what is unacceptable is not a bright line. It is to be noted that most of these broadcasts have been in what can be broadly called “a political area”.

[29]  Similar issues to those raised in the present complaint have arisen elsewhere. Soon after Mr Laws made his comments in New Zealand, Jeremy Clarkson, a British media commentator, said on a television programme in the United Kingdom that striking public sector workers should be “shot”. He said that he would take striking workers outside and “execute them in front of their families”. The British regulator, Ofcom, did not uphold complaints made to it for a number of reasons. A principal reason was that comments of this kind were to be expected from Mr Clarkson and would not have surprised his usual audience. The editorial nature of the programme was intended to be light and, in the introduction to the item, there was reference with light-hearted irony to Mr Clarkson’s provocative and outspoken nature. Ofcom also referred to the presenter on that programme having made a wide ranging apology at the end of that programme and as well, the BBC publicly acknowledged later that there was an element of misjudgement and it apologised for any offence caused. Ofcom therefore concluded that, on balance, the comments by Mr Clarkson did not breach British broadcasting standards.

[30]  The use of other cases for comparative purposes has to be done carefully and judiciously. It is all too easy to go to previous cases, read the printed words, compare those words with the words in question and draw conclusions that are misleading and wrong. Each case will be different. Words will be spoken differently and by different people. Contexts will be different. Radio is different to television. Talkback radio is different to other forms of radio programming. There will be differences in the way in which words are targeted and there will be differences in the ways in which words find their target. Some of the targets will be local and identifiable but in other cases the targets will be distant. The purpose and value of the words in the speech will be different. The primary consideration in each case is to consider the detail and the specifics of that case and most importantly the context in which the words are being used. As was said by the Judge in Gaunt (above), “In this field at any rate, I suspect that consideration of the facts of other cases normally provides little help, and sometimes can amount to a positive distraction as each case is so dependent on its particular facts, context and issues.”

Our Reasoning on Good Taste and Decency

[31]  The subtlety of the English language allows some words, and some combinations of words, to be used in different contexts and to produce quite different meanings. Sometimes words which if used literally would cause offence can be used in such a way as not to give offence and to show plainly that a literal or inoffensive meaning is not to be taken. One technique is to surround words, which if literally taken would be offensive, with humour, so as to neutralise their offensiveness. The humour can be introduced by the tone in which the words are delivered or by some other surrounding context. Another means of converting words which would be offensive if literally taken, into something which is inoffensive, is to introduce the absurd and take the words to such extremities that it would be absurd for a literal interpretation to be taken. Sometimes words are used in a way that is clearly metaphorical. The purpose of these techniques and their effect, is to disconnect the words being used from their literal reality and take away the harshness of the words being used.

[32]  When words which if used literally could be offensive are delivered so that they cannot be taken literally, they may nevertheless remain offensive. There are some combinations of words and there are some images which are produced by combinations of words which remain harsh, ugly and unacceptable even when they have been stripped of their literal dimension. The classic expletive words are examples of this.

[33]  We have thought carefully about whether the statement of Mr Laws as a whole was light-hearted and inoffensive. As we have listened to the words, there was no softening of the words delivered with laughter or light-heartedness (if there ever could be). We have also thought carefully about whether the statement was so disconnected from reality as to become light-hearted and inoffensive.

[34]  In our view, some of the words in the statement embraced specificity. They embraced specific people in a specific target area and they referred to the specific weapon of a shotgun being used to kill these people. When these words are heard or read, they do convey an image of a small group of known and specified people in Auckland being shot. We do not think that the use of metaphor or any attempt at humour was sufficient to disconnect the words used from the reality of the image. We think it likely that there was a conscious effort on the part of Mr Laws to create this image to shock and attract attention but in such a way that it could be passed off as something light and frivolous. It is difficult to achieve both of these objectives, that is, to shock and attract attention with imagery, but to have this imagery being seen as humorous or unreal.

[35]  When we consider the acceptability of what is spoken on talkback radio we need to consider who might be affected or influenced by such speech. It may well be that regular listeners to programmes of this kind become case-hardened and unaffected by this sort of commentary; indeed they may well come to expect it and like it. There are others, not in that category, who will find it offensive. Importantly, there are those against whom the speech is directed and whose responses need to be taken into account. Then there is the wider public interest which is directed at broad-based standards being observed.

[36]  Parts of the statement were directed at such a wide group of media people in New Zealand that none in that group would have seen themselves as being a particular target of such speech. The journalists and media people in the wide group may well have brushed the comments aside and categorised them as intemperate venting by a radio host trying to attract attention. We would expect that the small and identifiable group of journalists at the Herald on Sunday, could with justification have been offended by the comments and the extreme nature of them as could some of the people within TV3. Some listeners could, with justification, have been offended by the comments directed at the particular people. Some listeners would have been concerned by the language coming as it did from a radio host who is meant to have the responsibility of maintaining reasonable standards.

[37]  We are conscious of the broadcaster’s position that while this language might have offended some people, Mr Laws’ usual listeners would not have been surprised and offended. We note that this approach was taken to some extent in relation to Mr Clarkson. We think that this sort of justification can only be taken a short distance. If this were to be the standard then, progressively, as listeners became desensitised almost anything would go and there would be a need for more and more extremism to attract attention. There would also be markedly different standards applying to different radio hosts. We accept that there will be some difference but it cannot be too marked. In the present case, if a caller into talkback were to speak in the sort of language that Mr Laws spoke in, we would expect most responsible talkback hosts to express their disapproval in some way.

[38]  We have considered the question of what is the proper context in which the Laws comments should be judged. In our opinion, this is not the narrow context of the Laws talkback programme to the exclusion of everything else. Instead, it is the context of talkback radio in New Zealand, part of which is made up of programmes such as those of Mr Laws. In a broader way, the context of talkback radio in New Zealand has to be seen in the context of general broadcasting standards in New Zealand. While much of the focus will properly be on the Laws programme and the expectations of listeners to that programme, it is necessary to look beyond that and see what is happening in broadcasting elsewhere. Presenters such as Mr Laws can and will express extreme views from time to time. When these extreme views are expressed it should not be said, setting aside everything else, that this is the particular style of the programme and this is what most listeners to that programme expect. If that were to be the case, then offensive language could be justified on the basis that this goes with this particular territory.

[39]  For reasons which we have given, we are cautious about going too far in comparing this speech with other examples of speech, some of which have been found to be acceptable and some to be unacceptable. We have nevertheless made some comparison and in our view the present speech as a whole goes further than anything that has previously been found to be acceptable. A combination of its length, its repeated use of graphic imagery, its specificity, and its mode of delivery takes us to this conclusion.

The Value of the Speech

[40]  As we have endeavoured to explain, the value that we attribute to the speech of Mr Laws must determine whether, notwithstanding it being contrary to ordinary standards of good taste and decency in broadcasting, it should be allowed. Amongst the several reasons which the broadcaster gave to justify its decision that the speech was acceptable, the broadcaster did not specifically include any assertion that the speech ought to be given any special weight on account of its cultural or political value. We accept that in making his statement, Mr Laws referred to a political topic, that is the “tea tapes” issue and the response of the media to the “tea tapes” issue. We have not had access to the whole of the broadcast segment. In the absence of anything from the broadcaster suggesting that the part that is before us was in the context of some higher value political discourse, we have to judge it according to what we have been given. Having carefully weighed the value of the speech and in particular the part of it which we think was offensive, we do not see it as being of high value.

[41]  We endorse the freedom of Mr Laws and the broadcaster to publicly criticise the media in relation to the “tea tapes” and particular sections of the media such as the Herald on Sunday and TV3 journalists. These criticisms could have been strong and trenchant. We do not however endorse the use of specific and violent language directed at small groups of identifiable people. We attribute the highest value to the right of Mr Laws to criticise journalists. We see little value in the words which on their face may normalise violent behaviour.

[42]  As the broadcaster has explained, the comments of Mr Laws were “for effect”. What, may we ask, is the effect that was sought? One of the sought effects would have been to shock listeners and attract their interest. If language is of sufficient strength to shock and attract interest from listeners, it should be seen as having an impact on those against whom it is directed, in this case to small groups of journalists. We do not want to be advocating oversensitivity, particularly in talkback radio. We think, however, that a person who is given the freedom to enter people’s homes, workplaces and vehicles with his views should not be expressing them in language of this kind. We think that the repeated layers of violent imagery and the narrowing of the focus to smaller groups of people went too far.

[43]  We have thought about whether because journalists operate in a political environment it is to be expected by our society that they should be targets of this sort of speech. We do not think that any small group of identifiable local people should be subject to language of the kind that Mr Laws used in the central part of his comment. We see no difference between specific journalists in their specific newsroom and other specific people doing their work in a specific place. These people may be specific teachers in an identified classroom, judges in a specific courthouse or any group of workers in a particular workplace.

[44]  There is some irony in Mr Laws, under the mantle of freedom of expression, saying that journalists who expressed views with which he did not agree should be closed down (or “shot”). We see that as being a legitimate manifestation of freedom of expression so long as the language does not go too far.

[45]  There is a tendency for some broadcasters, out of a desire to shock, to test the boundaries of acceptability. It is our responsibility to endeavour to determine where the boundaries of acceptability lie. On this occasion we judge the totality of the words used by Mr Laws as having gone too far.

[46]  Our consideration of the present complaint shows that the ordering and reordering of combinations of English language words can produce kaleidoscopic outcomes where each combination is different and each combination needs to be looked at for its subtleties and sensitivities and its context. It can be seen that we have endeavoured to do this.  We have undertaken a careful analysis of what we think are all relevant factors. We are conscious of the dangers of over-analysis. We also remind ourselves that the broadcast of these words would have happened quickly, and that subtleties of metaphor could have been missed. It is likely that the impression on listeners would have been that Mr Laws had just made some statements of an extremist kind involving repeated layers of violent imagery.

Outcome

[47]  For these reasons, and without having come to this decision quickly or lightly, we find that Standard 1 (good taste and decency) has been breached. We do not find that the comments about the people in the Herald on Sunday newsroom being killed with a shotgun were of such value that for us to say that they should not have been spoken by a radio host would pose any danger to our democratic freedoms. We emphasise that it is part only of what Mr Laws said which takes the broadcast over the line. We recognise that in these areas of judgment, there is room for other views.

[48]  The term “good taste and decency” has a very wide scope which is capable of being applied in a wide range of different circumstances. In the past, this standard has been applied more to items of a sexual or violent kind and to language which can be categorised as “swearing”. We do not see this standard as being limited to these situations and consider that Mr Laws’ language breached standards of good taste and decency in the sense that it had the potential to distress or offend.¹⁰

[49]  We see this as a complaint which requires boundaries to be set. We think that the broadcaster went over the boundary. Having endeavoured to mark the boundary more clearly, and expecting broadcasters to take care in the future, we do not consider that any order is warranted.

Standard 2 (Law and Order)

[50]  The law and order standard has a different purpose to the purpose of the good taste and decency standard. The purpose of the law and order standard is to prevent broadcasts that may encourage listeners to break the law, or otherwise promote, glamorise or condone criminal activity.¹¹ The standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society.¹²

[51]  In this case, where we have found that Mr Laws was not advocating actual shooting or poisoning, it follows that he has not breached Standard 2. His comments were not able to be taken literally and were not intended to be taken literally. They did not incite rational listeners to commit unlawful acts. We therefore decline to uphold this part of the complaint.

Minority View (Mary Anne Shanahan)

[52]  I have read and considered the decision of the majority but do not agree. For the reasons set out below I agree with the broadcaster that there was no breach of either standard in this broadcast, and I would not uphold the complaint.

Bill of Rights

[53]  Determination of this complaint must be made against the background of the Bill of Rights Act and in particular the protection of freedom of speech in New Zealand. The corollary of freedom of speech is that there is no general right not to be offended. The right to offend is at the heart of every struggle for justice. It is a bedrock of every liberal society. Few limitations as possible must be put on this right so that we can speak our minds. Vehemence, an aggressive response to the views of others, forcefulness of expression, incendiary commentary and inflammatory speech are permissible and common hallmarks of speech.

[54]  Talkback operates in the marketplace of ideas. It promotes discussion about social issues, sparks and provokes debate and facilitates audiences’ understanding and engaging in debates. The context of this particular broadcast was essentially political. Mr Laws was challenging the media’s behaviour following the so-called “tea tapes” incident in the week prior to the election. The speech was provocative and invited debate. To uphold a complaint in the context of a political discussion requires convincing justification. It is the type of speech that has a high value. Mr Laws’ programme was akin to current affairs in exploring a matter of public interest.

Standard 2 (Law and Order)

[55]  Standard 2 (law and order) states that in the preparation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

[56]  The Authority has stated on previous occasions (for example, Gregory and Television New Zealand Ltd¹³) that the intent behind the law and order standard is to prevent broadcasts that encourage viewers or listeners to break the law, or otherwise promote, glamorise or condone criminal activity. The words “encourage”, “promote”, “glamorise” and “condone” are strong words and reveal that, to breach the standard, a broadcast must be unequivocal in its support of criminal activity”.

[57]  The Authority considered a similar complaint (though under the Free-to-Air Television Code) in Kearney and Television New Zealand Ltd.¹⁴ Paul Holmes, speaking of Noam Chomsky, said, “He should be shot”. The Authority did not uphold a complaint under Standard 2, saying:

In the Authority’s view there are often items broadcast on the Holmes programme which are perceived by the public as being somewhat controversial. However, of particular relevance in this instance is the Authority’s view that the remarks “he should be shot”, is clearly a recognized colloquialism.

In the Authority’s opinion, when it takes into account the nature of the remark and the manner in which it was used, the type of programme and character or the interviewer, it is most unlikely that the remark would ever be taken seriously. It was clearly delivered tongue in cheek and apropos of nothing and although the Authority considers additional information concerning the remark may have been useful, its use fell well short of an advocating shooting...

...In the Authority’s view, the remark was a random colloquialism delivered as an expression of opinion with no malice intended and as such, there has not been a breach of Standard 2...

[58]  In the case at hand it is obvious that Mr Laws did not intend that any listener should take a shotgun and kill journalists or, more specifically, the Herald on Sunday journalists. Notwithstanding that Mr Laws repeated the colloquialism, (whereas Mr Holmes used it only once), the true sense of the colloquialism would have been well understood by listeners. Mr Laws was not promoting or encouraging violence. The outcome of the complaint would have been different if he had, but he did not. The comments were so extreme as not to be taken seriously, nor could they reasonably be expected to incite listeners to commit unlawful acts. I find no breach of this standard.

Standard 1 (Good Taste and Decency)

[59]  The Authority’s practice note on good taste and decency records that, in general, the Authority uses two key principles to determine radio complaints under this standard, namely, children’s interests and the expectations of the target audience. This broadcast was outside children’s listening hours (during school hours) and unlikely to interest children. The target audience was adult talkback listeners, and specifically Mr Laws’ audience. Mr Laws’ talkback programme is on five days a week. He has been hosting this programme for many years, and his style and manner is well known. Mr Laws is outspoken and combative. The comments in this programme were well within the expectations of his audience. There are those who agree with Mr Laws on a wide range of issues. He clearly represents a section of the community. It is also clear that there are those who find Mr Laws offensive and his views distasteful. They are often offended when they hear him. In this broadcast the comments made by Mr Laws were controversial and offensive to some individuals and perhaps some journalists. If that is so it comes with the territory when freedom of speech is upheld. However, for a breach of this standard there must be more than that people were offended. In my view, it would require an intent that the comments be taken seriously, and a call to action or encouragement. Neither intent nor encouragement was part of the comments made. They were satire, or an attempt at satire and not unexpected within the context of his programme.

[60]  Whilst Mr Laws was provocative and outspoken, he spoke in a dispassionate way. Mr Laws’ tone was his usual tone used when introducing his programme. There was humour here (albeit not to everyone’s taste). Mr Laws’ comments were clearly tongue-in-cheek. Crucially, Mr Laws did not intend his comments to be taken seriously nor in my view could they have reasonably been taken seriously.

[61]  The approach of this Authority has consistently been that, when allegedly objectionable material is being considered, context is all important. Words need to be considered in the context in which they are used and in the context in which they are broadcast. It is not the collection of letters that makes a word unacceptable but rather it is the meaning which some words have, the context in which they are delivered and the context in which they are broadcast.

[62]  It follows that Mr Laws’ speech must be assessed by reference to the intended and properly understood meaning of the words used and not in this case their literal meaning. As noted under the law and order standard it would have been clear that the comments were not to be literally interpreted. The context here is that Mr Laws was using a well understood colloquialism. While speaking of “shooting people”, in reality he was using a socially acceptable, well understood, colourful and vehement expression of disagreement. The English language is nuanced. Meaning “depends on tone and context”. At one level, to talk of “shooting” someone is clearly a violent notion. However that is to ignore the well understood meaning of the colloquialism. Most people would understand that Mr Laws was not promoting or suggesting that anyone be shot.

[63]  Soon after Mr Laws made his comments in New Zealand, Jeremy Clarkson, the British media commentator, said on a television programme in the United Kingdom that striking public sector workers should be “shot”. He said that he would take striking workers outside and “execute them in front of their families”. The British regulator, Ofcom, did not uphold the complaint made to it, that it exposed members of the public to harmful and unjustified offence. Ofcom referred to:

Mr Clarkson’s well established public persona. His often controversial (and to some offensive) views are widely published in both print and on television... the audience... would have expected Jeremy Clarkson to make potentially controversial or offensive statements.

Further, we consider that it would have been clear to most viewers that his comments were not an expression of seriously held beliefs or views that should be literally interpreted.

The parallels with Mr Laws’ comments are obvious.

[64]  The wider context here is the political debate of the time. The comments were made during a highly charged period of the 2011 election campaign when the actions of the media were under scrutiny. Worldwide, political speech has adopted violent rhetoric. Politicians ‘attack’, political polls show a party is ‘annihilated’, opponents are ‘targeted’. Mr Laws took this violent rhetoric further in his programme known and understood to be at times provocative and inflammatory.

[65]  Some of Mr Laws’ comments had a degree of specificity about them, namely:

That one – the Herald on Sunday for example which is rabid all the time, no idea why somebody just hasn’t taken a shotgun there and cleaned out the entire news room. But the infection has spread, so it goes to the Herald of course it does, and it infected TV3, well they’re in Auckland of course it does, and then it sort of spreads from there.

These were in the past tense (and so they lack encouragement or intent) and do not single out individuals or name individual journalists. These comments refer to institutions. While there was a degree of specificity it is insufficient to curb free speech.

[66]  The Authority has considered, and declined to uphold, complaints about three similar instances in relation to Standard 1 of the Free-to-Air Television Code. In Amnesty International Aotearoa New Zealand and Television New Zealand Ltd,¹⁵ a host on Breakfast commented, in reference prisoners being handed over to Afghan security forces, “Does anyone care if we put drills through the heads of these people?” and, “We need to get out the Stanley knives.” The Authority said in its decision:

We acknowledge the offence caused to the complainant and accept that Mr Henry’s comments may have offended or distressed other viewers. However, while Mr Henry’s choice of expression could have been less indelicate, we consider that he was not seriously advocating for the use of “indiscriminate violence and torture” against Afghan prisoners, as contended by the complainant. In our view, he was being deliberately provocative and hyperbolic to stimulate a response on an important and topical political issue.

This approach, when exercised within proper bounds, is permissible and legitimate in a society which values and protects the right to freedom of expression. We consider that views expressed strongly, or which are highly controversial, can sometimes cause people to consider issues which would not otherwise attract their attention.

Taking into account the above contextual factors, particularly that Breakfast was an unclassified news and current affairs programme targeted at adults, we do not consider that Mr Henry’s comments breached standards of good taste and decency. We therefore decline to uphold the Standard 1 complaint.

[67]  In Mathias and Television New Zealand Ltd,¹⁶ the same host, when commenting on what people should have in their civil emergency survival kits, said, “I just wonder if we do need to have some kind of weapon in our survival kit? …And don’t forget you’ll need bullets. There’s no point having a gun without bullets. That’s as much as I know about guns.” He went on to suggest, “Keep a gun and that way you can get someone else’s kit. You can just go hunting the streets and say, oh I like what you’ve got, out comes the gun…” The Authority declined to uphold the complaint on the basis that “Mr Henry’s comments formed part of the regular banter that occurred between the programme’s presenters. ...Mr Henry was attempting to be humorous and... his remarks were not intended to be taken seriously.”

[68]  In Bladen and Television New Zealand Ltd,¹⁷ the same host said that obese children “should be taken from their parents and put in a car compactor”. The Authority declined to uphold the complaint, saying, “the comment was a light-hearted attempt at humour; the host was not seriously suggesting that children be put into a car compactor.”

[69]  I find that Mr Laws’ speech on this occasion fell within the same permissible range as the speech considered in these cases. I do not consider that the “specificity” of Mr Laws’ comments in this case took them beyond what was acceptable. In previous complaints which were not upheld, Paul Henry was specific in his comments about Afghan security forces.¹⁸ Paul Holmes was specific in suggesting Noam Chomsky be shot.¹⁹ Indeed the colloquialism invariably involves a specific candidate, or candidates, for shooting. The target of Mr Laws’ speech was specific (but not to the degree of identifying an individual), and legitimately so, as that necessarily follows given the subject being considered was the media, and specifically the Herald on Sunday, and its behaviour over the “tea tapes” incident.

[70]  Further, Mr Laws’ speech reflected the way he likes to speak. Mr Laws may have been deliberately provocative for effect. However, as the broadcaster commented in its response to the complaint:

...it is a reasonable expectation for talkback hosts to make narrow, one-sided hyperbolic and controversial statements for “effect” and to generate discussion and debate.

As Lord Neuberger MR stated, freedom of expression is not only the right to say what one wants, but also “how one wants” (see paragraph [12] above). It is always easy to argue that “he could have said this another and less offensive way”. However this approach must be used warily as it can be used to restrict almost any speech. Speech is not always civil. It can be shocking, offensive and disturbing for some. Whilst Lord Neuberger acknowledged the need for some restrictions on freedom of expression, he noted that any attempt to curtail freedom of expression must be approached with circumspection.

[71]  Further, Guideline 1a to Standard 1 requires us to take into account the context of the broadcast, including the time of broadcast and the likely or target audience. This was considered in some detail by the Authority in respect of numerous complaints about an episode of South Park that depicted the Virgin Mary menstruating. The Authority recognised that the broadcast was offensive to the Catholic community. However, the Authority commented:²⁰

While some may have found the subject matter distasteful, the Authority agrees with CanWest that the show’s adult target audience would not have been offended. Those outside the demographic at which South Park is aimed would have been sufficiently well informed by the 9:30pm timeslot, the AO classification, the pre-broadcast warning, and the well known nature of this series, to enable them to make an informed choice about whether or not to watch.

[72]  The Authority’s decision was upheld on appeal to the High Court where Wild J stated:²¹

...it has now famously been said that “in law context is everything”... In my view the same can be said of television and other media broadcasts or publications. This is another way of my expressing disagreement with the... submission that there are universal standards of good taste and decency that can and must be upheld irrespective of the context of the matter in issue.

[73]  The style of talkback hosts may and does vary widely. The context here is Mr Laws. Like South Park, his programme has its own demographic. His programme is long-running. Mr Laws’ usual listeners would not have been surprised or offended. Others who find him distasteful are sufficiently well informed by the well known nature of his programme to make an informed choice about whether or not to listen.

[74]  If Mr Laws (or any host) becomes more extreme in the future it may well be that Mr Laws then contravenes the standard. Should that occur a breach may be found. That is not a matter for this decision. In the past the Authority has upheld complaints that Mr Laws transgressed. For example, complaints under the fairness standard were upheld where he engaged in abusive rants against the New Zealand Fire Service²² and against the Exclusive Brethren.²³ In the latter case the good taste and decency standard was subsumed. It is my view that the broadcast now before us was restrained in comparison. In those cases Mr Laws conducted sustained and abusive rants against the named organisations, including the use of offensive language.

Conclusion

[75]  In the context of Mr Laws’ programme I do not agree that the comments here went too far or were so offensive as to breach the standard. Mr Laws was, in a provocative way, challenging the media for its role in the “tea tapes” saga and inviting debate. Further, the speech here was essentially political, which is speech that is valued, and should be curbed only to prevent the harm to which the standard is directed. Here the standard is to protect the community from material that may disturb or offend regardless of its context. I find no harm to community norms in this broadcast given the context of this item and the use of an accepted and well understood colloquialism. Further, there was no explicit description of violence or violent behaviours so the piece was unlikely to contribute to desensitisation to violence or the promotion of violent behaviour.

[76]  This is not to say that in talkback “anything goes”. There is no doubt that if the literal meaning of the words had been intended and one had promoted shooting an individual journalist, or anyone else, it would be a breach of community norms together with a breach of the law and order standard. Here this is not what occurred.

Freeman Analysis by Majority

[77]  In situations where the decision of this Authority is a majority decision, it is appropriate for the majority to consider the views of the minority to ensure that the majority remains satisfied that its position is correct.²⁴ We the majority have carefully considered the views of the minority as we will now endeavour to demonstrate.

[78]  There is no difference between the majority and the minority in relation to the principles of freedom of expression. There is general agreement that any attempt to curtail freedom of expression must be approached with circumspection.

[79]  It is well understood by the majority and the minority that in any society there are limitations on freedom of expression and from the perspective of the majority, there have to be. The first part of Lord Neuberger’s statement – “the right to say what one wants and how one wants” – cannot be seen alone and has to be read with the second part where he acknowledged “the need for some restrictions on freedom of expression”. It also has to be seen in the context of that case where the Court considered that the broadcasting regulator, Ofcom, had acted correctly in holding that an interviewer on a radio sports programme had breached the relevant broadcasting standards by engaging in what the Court described as a “rant”.

[80]  The majority’s understanding of the position of the minority is that, in the context of the Michael Laws’ talkback programme, the comments he made did not breach standards of good taste and decency, particularly because the expressions used were colloquialisms. The majority considers that some of the comments went much further than colloquialisms and these comments made the whole of the statement unacceptable.

[81]  We do not see the speech which we consider unacceptable to be made acceptable by its having referred to a political topic, that is the “tea tapes” issue. We are very conscious that it is possible to put a lot of speech which on its face is offensive, into a political context to seek to justify it being allowed. When a television presenter spoke offensively about a Governor-General, the broadcaster recognised this as being unacceptable even though, arguably, matters of political or constitutional relevance were being discussed.²⁵ This Authority unanimously agreed with the broadcaster that the comments breached standards of good taste and decency.²⁶ When the same television journalist as part of a criticism of the preparedness of India for the Commonwealth Games spoke in what was said to be a humorous way about an Indian Minister, there was widespread condemnation of this, and the broadcaster found, and this Authority unanimously confirmed, the language to be unacceptable under Standard 1.²⁷

[82]  In relation to the specificity of the targets of the speech, we see a difference between targets of speech such as  prisoners in Afghanistan and Noam Chomsky in  an unidentified place in North America on the one hand, and journalists in their newsrooms in Auckland on the other.

[83]  We accept the view of the minority that the speech reflects the way Mr Laws likes to speak. We see that as the difficulty, not the answer to the difficulty. We are all subject to reasonable limitations on what we can say. We all have to have regard to the expectations of the society in which we live. In private the restrictions are very few but on open radio they are greater. Expressing in detail on radio the view that specific people should be killed to a point where it has gone beyond mere colloquialism, and gone beyond humour and metaphor, is in our view to go a step too far.

[84]  We the majority therefore affirm our decision that the complaint should be upheld under Standard 1 (good taste and decency), but we respect the views of the minority on these matters of judgement.

For the above reasons a majority of the Authority upholds the complaint that the broadcast by RadioWorks Ltd of Michael Laws Talkback on 18 November 2011 breached Standard 1 of the Radio Code of Broadcasting Practice.

[85]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. Taking into account our reasons at paragraph [49], and that our decision was not unanimous, we consider that the publication of this decision is sufficient in all the circumstances.

Signed for and on behalf of the Authority

Peter Radich
Chair
5 July 2012