BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The Authority has upheld a complaint that the action taken by MediaWorks in response to a breach of the alcohol standard during The Morning Rumble was insufficient. The Authority agreed that the item, which focussed on an interviewee’s ability to ‘down’ alcohol at a rapid rate, amounted to alcohol promotion that was socially irresponsible. While the broadcaster had apologised to the complainant, and communicated the importance of the alcohol standard internally to content directors of The Rock FM, the Authority found that this was insufficient to remedy the harm caused by the broadcast.

Upheld: Alcohol (action taken)

Orders: Section 13(1)(a) – broadcast statement; Section 16(4) – $1,000 costs to the Crown

The broadcast

[1]  On 16 April 2020, at around 7.10am The Rock FM featured an interview with a social media influencer on The Morning Rumble. The relevant parts of the broadcast follow:

Host 1: …it’s 10 past 7, Thursday morning, which is three weeks since we went into lockdown. Our first show in lockdown was three weeks ago, three Thursdays ago and we’re still going strong and so is this man here. His name is [guest]. Bit of a coronavirus legend so to speak.

Guest: Hey there’s a lot of uh fun stuff going on during the lockdown, I just thought I’d start my own thing, um and just nominate people to do just absolutely f***ing nothing because I’m not f***ing interested in doing 20 press ups or sending you that um you matter, I’d rather just do f*** all and just drink some piss…

…

Host 2: ...mate you um you can delete piss like no one I’ve seen in my life and I went to uni in Dunedin… where has this gift come from…?

Guest: You know you just got to be the best at one thing, and you know, my Scout leader did say…practice makes perfect, and the other thing was like don’t tell your parents about this… it’s just when you need the thirst, you need it so bad you can’t help but just, you know, open the gates of hell and fire that down.

Host 1: It goes down your throat faster than you could pour it out almost, it seems.

Guest: Yes, yea it can, which is a blessing and a curse...

Host 2: …do you ever sip your way through a beer like a normal person or does it always go down in one sip?

Guest: Normally, I’ll do, I do the half and half you know, I will drink half the pint and then I will drink the other half, um, and then after about six or seven, then you start, you know, sipping, but you double park for quite a while because you don’t want to be lining up at the bar…

Host 1: [Guest] on Instagram, he’s a good man, he’s a folk hero of the times…

[2]  In considering this complaint, we have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The complaint

[3]  On 4 May 2020, Alcohol Healthwatch made a formal complaint to MediaWorks that the broadcast breached the alcohol standard of the Radio Code of Broadcasting Practice because ‘the discussion between the Rock FM and [the guest] did not avoid advocacy of excessive alcohol consumption.’ MediaWorks upheld the complaint.

[4]  In its referral, Alcohol Healthwatch submitted that the action taken by MediaWorks was insufficient because:

• The public should have been informed. Breaches under the standard should be communicated publicly to ensure broadcasters are kept accountable.
• ‘In recognition of the serious harms from alcohol in Aotearoa, New Zealand, and the likelihood that many of The Rock’s listeners may be drawn from demographic groups in society that have high rates of hazardous drinking and harm, we feel that the public should be informed of this breach of the BSA radio code.’

The broadcaster’s response

[5]  MediaWorks upheld the complaint in the first instance, finding that the segment did not avoid advocacy of excessive alcohol consumption. MediaWorks and the team at The Rock apologised to Alcohol Healthwatch for the breach.

[6]  MediaWorks also said that as a result of the complaint, they have ‘taken the opportunity to communicate with our content directors across all of the MediaWorks radio stations, not just The Rock, to reinforce the need and importance of responsible alcohol messaging’.

[7]  MediaWorks also clarified for the Authority that this issue will ‘form part of future training for on-air and online staff’, and that their Senior Legal Counsel has ‘regularly scheduled meetings with every Radio Content Director, [where] he has discussed the requirements of both Standard 7 and the ASA's Code for Advertising and Promotion of Alcohol, in particular the need for messaging around responsible drinking behaviour’.

The relevant standard

[8]  The purpose of the alcohol standard (Standard 7) is to prevent broadcasts that promote alcohol in a socially irresponsible way in the context of their genre.

[9]  Assessment of complaints under this standard is done in two stages:¹

• We first assess whether or not the broadcast amounts to alcohol promotion. Alcohol promotion may be in the form of the promotion of an alcohol product, brand or outlet, alcohol sponsorship or the advocacy of alcohol consumption.²
• If the broadcast amounts to alcohol promotion, we then determine whether the alcohol promotion was socially irresponsible in breach of the standard.

[10]  Alcohol promotion in a broadcast will usually be found to be socially irresponsible if it portrays excessive alcohol consumption as positive and desirable, is dominated by alcohol promotion or fails to acknowledge the negative effects of alcohol consumption.³

Our analysis

Freedom of expression and public interest

[11]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. However, freedom of expression is not an absolute freedom. When assessing complaints, we weigh the right to freedom of expression against the level of potential harm caused by the broadcast. The importance of freedom of expression means that we may only intervene when it is reasonable and justified. The broadcasting standards are designed to guide broadcasters in exercising their freedom of expression responsibly.

Alcohol (action taken)

[12]  Considering the following, we agree with MediaWorks that the broadcast amounted to alcohol promotion that was socially irresponsible:⁴

• The Morning Rumble is a radio talkback programme with a humorous note.
• The broadcast portrayed excessive alcohol consumption as positive and desirable. The guest spoke about preferring to do nothing and ‘get pissed’ rather than undertaking other lockdown-related challenges.
• The hosts referred to the guest as a ‘good man’ and a ‘folk hero’ of the times.
• The subject of alcohol consumption made up a big part of the interview. The focus of the interview was on the guest’s ability to consume alcohol really quickly.
• The segment failed to acknowledge the negative effects of alcohol consumption.

[13]  Having determined that the broadcast breached the alcohol standard, the next question is whether or not the action taken by the broadcaster appropriately remedied the alleged harm. In making this assessment, we also consider the severity of the conduct, and the extent of the actual or potential harm that may have arisen.⁵

[14]  While the broadcaster has apologised, and taken the step of providing training to MediaWorks’ content directors about the importance of their obligations under the alcohol standard, there was no public acknowledgment of the breach. While training may prevent future harm, we do not consider that it appropriately remedied the harm caused by the broadcast. We further note the following:

• The programme was aired in the morning, during the COVID-19 lockdown period where it portrayed doing nothing and getting drunk as a desirable activity to get through this time.
• In addition to these broadcasts, segments of the interview can also be found on The Rock’s website (and these items have not been removed).
• The Rock’s target audience is males between the ages of 18-44 and this group is amongst the demographic groups of society that tend to have high rates of hazardous and harmful drinking.⁶

[15]  We therefore uphold Alcohol Healthwatch’s complaint that the action taken by MediaWorks was insufficient. 

For the above reasons the Authority upholds the complaint that the action taken by MediaWorks Radio Ltd regarding an item on The Morning Rumble on 16 April 2020, having upheld the complaint under Standard 7 (Alcohol) of the Radio Code of Broadcasting Practice, was insufficient.

[16]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the complainant and the broadcaster.

The complainant’s submissions

[17]  Alcohol Healthwatch requested that the Authority order a broadcast statement to be made by MediaWorks on The Rock FM on a Thursday morning between 7.10am and 7.20am, at a similar time to the original broadcast. The complainant supplied suggested wording for the statement, and also requested that the statement and surrounding discussion does not revisit the content complained about, or mention the guest’s name.

[18]  Alcohol Healthwatch also requested that MediaWorks issue a media release, to be published on its website, outlining the actions it has taken in response to the breach of standard 7.

[19]  Alcohol Healthwatch said it was not requesting any order for the broadcaster to refrain from advertising or broadcasting, or any order for costs.

The broadcaster’s submissions

[20]  MediaWorks accepted the Authority’s decision and otherwise made the following points in relation to any penalty:

• The Authority should take into account that MediaWorks upheld the complaint in the first instance and apologised to the complainant.
• The MediaWorks Standards Committee has taken efforts to address the breach by meeting with the management and staff at The Rock who were responsible for the broadcast, to ensure they understand the importance of responsible alcohol messaging.
• The publication of the Authority’s decision is sufficient to remedy the breach and no other orders are warranted.

Our decision on orders

[21]  In determining whether orders are warranted, the factors we take into consideration are:⁷

• the seriousness of the breach, and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or to the audience generally
• the objectives of the upheld standard
• the attitude and actions of the broadcaster in relation to the complaint (eg, whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• past decisions and/or orders in similar cases.

Application of these factors in this case

[22]  We consider the following aggravating and mitigating factors are relevant in this case:

Aggravating Factors:

• We consider the harm caused by this broadcast, and the seriousness of the conduct, were at the higher end of the spectrum.
• The broadcast was aired during the level 4 lockdown period and was focussed on excessive alcohol consumption as a preferred pastime over this period, portraying it as positive and desirable, without any acknowledgement of negative effects.
• The broadcaster did not consider or make any attempt to avoid alcohol advocacy in the programme, despite clear directions on this under standard 7.
• The broadcaster had full control over the circumstances of the breach; the presenters of the show invited the guest onto the programme for the purpose of questioning him about his ‘gift’ for drinking alcohol quickly.
• The broadcast was also published on The Rock’s website with the title ‘[The guest] deletes piss like a madman’. This item was still available online in August, even after the broadcaster had upheld the original complaint and taken steps to address the breach.
• There is a further item on The Rock’s website featuring a clip of [the guest] drinking beer from a vessel in record time. This item is still available on the website.  

Mitigating Factors:

• MediaWorks upheld the complaint in the first instance and apologised to the complainant for the breach.
• MediaWorks submitted that they have taken steps to educate their stations on the importance of standard 7.
• The corresponding online video clip mentioned above, ‘[the guest] deletes piss like a madman’, has now been removed from the website.

Broadcast statement

[23]  Taking the above factors and the parties’ submissions into account, we consider that an order of a broadcast statement is an appropriate response to the breach of standards on this occasion. A broadcast statement will provide a public denunciation of the breaches and help remedy the harm caused by the broadcast. The statement may also give guidance to broadcasters on the application of the standard and confirm the Authority’s expectations which will have a general deterrent effect on other broadcasters.

[24]  Consistent with the Authority’s usual practice, the broadcaster will draft a statement summarising the upheld aspects of our decision, for approval by the Authority. We agree with the complainant that the statement should be broadcast at a similar time, and on the same day of the week, as the original broadcast, in order to reach a similar audience.

[25]  Given that the offending broadcast has now been taken off The Rock FM website, we are not ordering that the broadcast statement also be published online. We do not have jurisdiction or powers with respect to the related item that is still available on the website.  

[26]  The Authority does not have the power to order MediaWorks to issue a media release, although we note that following publication of this decision, the complainant is free to publicise the decision as it wishes.

Costs to the Crown

[27]  The Authority may also make an award of costs to the Crown, having regard to various factors including the conduct of the broadcaster, the seriousness of the breach and previous decisions. Under section 16(4) of the Act, the maximum amount of costs to the Crown we are able to award is $5,000.

[28]  Having balanced the aggravating and mitigating factors outlined above, we consider that in this instance, although the complainant has not sought costs, the conduct and seriousness of the breach justify an award of costs to the Crown. We consider a punitive response is required to hold the broadcaster to account, deter future non-compliance and confirm our expectations.

[29]  In considering the quantum of the costs, we have reflected upon the factors discussed above, as well as previous Authority decisions, and consider an order of costs in the amount of $1,000 is appropriate.

Orders

1.    Under section 13(1)(a) of the Broadcasting Act 1989, the Authority orders MediaWorks Radio Ltd to broadcast a statement. The statement shall:

• be broadcast during The Morning Rumble on The Rock FM
• be broadcast at a similar time, and on the same day of the week, as the original broadcast
• be broadcast within one month of the date of this decision
• contain a comprehensive summary of the upheld aspects of the Authority’s decision
• be approved by the Authority prior to being broadcast.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainant of the manner in which the above orders have been complied with.

2.  Under section 16(4) of the Act, the Authority orders MediaWorks Radio Ltd to pay to the Crown costs in the amount of $1,000 within one month of the date of this decision.

The order for costs is enforceable in the District Court.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

28 October 2020

Appendix

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

1  Alcohol Healthwatch’s formal complaint – 4 May 2020

2  MediaWorks’ decision on the complaint – 29 May 2020

3  Alcohol Healthwatch’s referral to the Authority – 11 June 2020

4  MediaWorks’ confirmation of no further response – 17 June 2020

5  MediaWorks’ clarification of the action taken – 9 July 2020

6  Alcohol Healthwatch’s submissions on orders – 24 September 2020

7  MediaWorks’ submissions on orders – 29 September 2020

¹ Commentary: Alcohol, Broadcasting Standards in New Zealand Codebook, page 16
² Definitions, Broadcasting Standards in New Zealand Codebook, page 9
³ Commentary: Alcohol, Broadcasting Standards in New Zealand Codebook, page 16
⁴ Commentary: Alcohol, Broadcasting Standards in New Zealand Codebook, page 16
⁵ Horowhenua District Council and Mediaworks Radio Ltd, Decision No. 2018-105, at [19]
⁶ See The Radio Bureau – TRB “About the Rock” <www.trb.co.nz>; Alcohol Healthwatch (5 December 2019) “Factsheet: hazardous drinking, New Zealand Health Survey 2018/19” <www.ahw.org.nz>; Stats NZ “Potentially hazardous drinking” <www.archive.stats.govt.nz>; Ministry of Health (5 April 2019) “Annual Update of Key Results 2017/18: New Zealand Health Survey” <www.health.govt.nz> and Health Promotion Agency (May 2019) “Key facts about drinking in New Zealand”
⁷ Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58