BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint a segment of Overnight Talk breached several standards. In the programme, a caller to the show queried the validity of the host’s statement that 1400 Israelis had died in the 7 October 2023 attack by Hamas, and asked what evidence the host had of the attack. The host’s response included suggesting the caller should not be ‘an idiot’, saying he was not going to waste his time, terminating the call and advising the caller that they could see ‘uncensored footage’ of the attack on the ‘deepest, darkest parts of the internet’ if they needed evidence. The Authority found that, within the robust forum of talkback radio, the host’s comments did not reach the threshold for a breach of the offensive and disturbing content standard; did not amount to unfairness to the caller, who had voluntarily participated in the call; and that there was no discrimination or denigration of any section of the community. The accuracy and balance standards did not apply.

Not Upheld: Offensive and Disturbing Content, Fairness, Discrimination and Denigration, Accuracy, and Balance

The broadcast

[1]  During an episode of Overnight Talk, broadcast on 25 October 2023, the host, Tim Beveridge, took a call from a listener who discussed the Israel and Hamas war. Discussion included the following:

Caller:          Getting back to the Gaza Strip, like, um 

Host:            Oh yeah.   

Caller:          It's genocide, isn't it? It's just – they're just going to flatten two million people. 

Host:            Well, I don't think that's what's gonna happen, but there's gonna – it's not gonna be – it's not a happy situation. I – and the thing is, I guess, what – what is Israel supposed to do?

Caller:          … against absolute warfare. They're gonna go in there and stomp them to pieces. And –

Host:            I guess the thing is, what is – what is Israel to do in response to 1400 civilians being murdered by Hamas? What – what should they do?

Caller:          Where’s your – where – where is your proof of that?

Host:            Oh, don't be an idiot.

Caller:          No, no, oh, no. It's a genuine question.

Host:            Oh, come on. What?

Caller:          It’s a genuine question. Well, where… 

Host:            Well, do you – do you not – do you not believe the news, Ryan? Do you not believe the news?

Caller:          [chuckles] Oh, I – I do to a point. But I mean, come on, I'd – I'd like to see sustenance [sic] in these – in these stories.

Host:            Oh geez, I'm not gonna waste my time. 

[Call ends] 

Host:            You're being a – you're being – don't be ridiculous. That is absolutely ridiculous. And if you wanna be cynical about the news, it's like, well, there's a point where your cynicism can lead to stupidity. Sorry, mate. That – that's just bloody ridiculous. Go and look it up on social media, even – if you can see everything you want to see, if you want to see the most horrendous things that they did, uh, Hamas, when they went over the border and murdered people. Um, murdered children, whatever. And I know it goes the other way now, and – but I guess the thing is, are you targeting for civilians or are you targeting a military target? When Hamas came over, they were targeting innocent civilians and they did pretty well at knocking them off. And if you think, “Where's the evidence?” I mean, I can't argue with a mind like that. I'm sorry [caller], but you need to go and just – go and start having a look on some of the deepest, darkest parts of the internet where you can actually see the uncensored footage of what went on. Um, and I – I don’t know, you might look at it and go, “Oh, how do I know that's not doctored?” Well, if – if you're living in that universe where everything is not to be trusted, then it is gonna be difficult for you. But good luck on your journey. But I mean, seriously, mate, I just think that… yeah, I just think that's just ridiculous. Sorry. Sorry to be so harsh. It does sound harsh, doesn't it? But there we go. 

The complaint

[2]  Dan Alderston complained that the broadcast breached several standards stating:

• ‘[Beveridge] cut off a caller who was sharing his views on the Israel and Palestine war who challenged [Beveridge’s] views. [Beveridge] then humiliated [the caller] for his views. The caller was not treated fairly because of his speech and his rights to free speech on the programme were not accounted for. [Beveridge] gave the caller nastiness with his harsh tone and told him to go to the 'darkest areas' of the internet to look at gore/referred to looking at graphic content of war photos. [Beveridge] may not [have] been accurate by saying Hamas mass murdered Israeli Citizens … specific content said from [Beveridge] needs to be fact checked. [Beveridge] … did not share both viewpoints of the Israeli War painting Hamas/Palestinians as the bad guys by cutting off the views that the caller shared and [the host’s] comments on the war which were pro-Israeli. The balance was not quite right. This all is offensive to those who are [Palestinian] and fairly could have offended them; especially with people being told to look into the darkest areas of the internet.’

[3]  In subsequent submissions, the complainant expanded on these points, including:

• Contextual factors such as the time, genre of broadcast, and host style/audience expectations ‘should not be wielded as justifications for offensive language or the humiliation of callers’. 
• The host's graphic reference to uncensored footage, could disturb the audience and potentially expose the audience and caller to harmful content.
• ‘While it's important to distinguish between Hamas and ordinary Palestinians, the host's comments should be scrutinized for potential discrimination or denigration, especially when discussing a sensitive topic like the Israel-Palestine conflict.’
• While the balance standard may not be a strict requirement for this broadcast, it is important to present balanced perspectives on sensitive topics like the Israel-Palestine conflict. Achieving a fair representation of diverse viewpoints is essential for fostering a more comprehensive and respectful discussion.
• Specific statements made by the host, such as regarding Hamas mass murdering Israeli citizens, ‘need fact-checking for accuracy’.

The broadcaster’s response

[4]  NZME did not uphold the complaint for the following reasons:

Offensive and disturbing content

• ‘Newstalk ZB is an adult-targeted radio station which is targeted at 40- to 59-year-olds.’ It is a ‘night-time talkback show broadcast at a time when only adults are likely to be tuning in’ and the comments complained about were made ‘during a live broadcast’.
• Talkback hosts, including Tim Beveridge, are ‘known for making provocative statements to stimulate robust debate’, and talkback ‘is granted some latitude to be provocative and edgy in the interests of robust debate’.
• ‘The caller had invited discussion of where evidence of Israeli civilian casualties could be found, having asked the host “where is your proof of that?” After the call, the host then discussed places where this evidence could be found.’
• ‘[NZME] acknowledged that the host’s suggestion that the caller could look for uncensored footage on social media and “the deepest, darkest parts of the internet” would be challenging for some listeners’ and accepted ‘some listeners would find the host’s remarks offensive’. However, NZME did not ‘consider that the host’s description of uncensored footage was likely to disproportionately offend or disturb the audience’.
• ‘The host acknowledged, shortly after making these comments that his remarks were harsh – which they were.’ However, given the above context, NZME did not consider the content of the broadcast seriously violated community standards of taste and decency and did not meet the high threshold required to breach this standard.

Discrimination and Denigration

• This standard does not apply to individuals or organisations, which are dealt with under the fairness standard. Accordingly, to the extent [the] complaint concerns unfairness to the caller, this standard does not apply.
• ‘The host referred to actions taken by Hamas and did not at any point refer to Palestinians. [NZME] consider it important to distinguish between the organisation Hamas, and Palestinian people as a group.’
• ‘[NZME] accept the host’s remarks expressed strong views against Hamas. However, as noted above, the standard does not apply to organisations.’
• ‘[NZME] do not consider that any adverse opinion was expressed in this segment towards 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.’

Balance

• The Broadcasting Standards Authority has confirmed in previous decisions that talkback radio does not generally fall into the genre of news, current affairs and factual programming, and as a result the balance standard does not apply.¹
• ‘Notwithstanding [NZME’s] view that the balance standard does not apply to this broadcast, [NZME] note that the host acknowledged the caller’s position about Israel’s attacks on civilians in Gaza and said “it’s not a happy situation”, before presenting a counterpoint view by asking how Israel should respond to the initial attacks on Israeli civilians.’

Accuracy

• The guidelines state that talkback programmes will not usually be subject to this standard.
• ‘[NZME did] not consider that the host’s response to the caller’s request for evidence of Israeli civilian casualties in this conflict could have materially misled the audience as to any point that the caller presented their personal view on.’

Fairness

• ‘The broadcast was a late-night radio talkback show with well-established audience expectations. [NZME does] not consider the host’s comments about the caller’s beliefs were unfair, or that they humiliated the caller and were delivered with nastiness and a harsh tone as claimed in [the] complaint. Nor does [NZME] believe that the host’s comments following the call adversely affected the dignity or reputation of the caller.’

The standards

[5]  The purpose of the offensive and disturbing content standard² is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.³ The standard takes into account the context of the programme, and the wider context of the broadcast, as well as information given by the broadcaster to enable the audience to exercise choice and control over their viewing or listening.

[6]  The discrimination and denigration standard⁴ protects against broadcasts which encourage the 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.

[7]  The fairness standard⁵ protects the dignity and reputation of those featured in programmes.⁶ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

[8]  We do not consider the accuracy or balance standards applied to this broadcast. These standards are dealt with briefly at [23].

Our analysis

[9]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[10]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁷

[11]  We have previously noted how talkback radio provides a forum for the free and frank expression of opinions.⁸ This is an important aspect of the right to freedom of expression and is fundamental to the operation of our democratic society.

Offensive and Disturbing Content

[12]  This standard regulates broadcasts that contain sexual material, nudity, violence or coarse language or other material that is likely to cause offence or distress. 

[13]  The context in which content occurs and the wider context of the broadcast are relevant to assessing whether a broadcast has breached this standard.⁹ Relevant factors in this instance include:

• Overnight Talk is a talkback programme, with an adult target audience and is broadcast after midnight. 
• The caller voluntarily participated in the programme.
• It was clear Beveridge was expressing his own view, and encouraged the caller to do their own research regarding the Hamas attack if they did not believe the news. 
• The host apologised for being ‘harsh’. 
• Talkback, and NewstalkZB in particular, is known for its robust nature.¹⁰

[14]  We acknowledge that directing the caller to look at the ‘deepest, darkest parts of the internet where you can actually see the uncensored footage’ could be seen as inappropriate. However, taking into account the opinionated environment of talkback radio and the expectation that it will provide a forum for robust and provocative debate and critique, the host’s comments – which did not describe in any detail the violence that might be viewable from such a search – do not reach the high threshold necessary to breach the offensive and disturbing content standard.

Fairness

[15]  The fairness standard applies to individuals or organisations participating in or referred to in a broadcast.¹¹ The complainant’s concerns under this standard are that Beveridge humiliated the caller, cut the caller off, treated the caller with ‘nastiness’ and spoke to the caller with a ‘harsh tone’. 

[16]  A consideration of what is fair depends on the nature of the programme and its context (including the public significance of the broadcast).¹² Participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution.¹³

[17]  In assessing whether the programme breached the fairness standard, we considered the factors outlined above at [13], as well as the following:

• The nature of talkback is that callers willingly contact and participate in debate with the hosts. We have previously found callers who willingly participate in talkback radio are not treated unfairly even when the host disagrees with or disparages the callers.¹⁴
• It is a standard format of talkback that the host takes a contrary position to that of callers, in order to generate debate.
• The caller was allowed to express their view, before Beveridge ended the call.
• Callers should reasonably expect by choosing to enter and participate in this forum, they may receive an adverse response if the host does not share their views.

[18]  While the host clearly took issue with the caller’s opinion, and voiced his disagreement, including by stating the caller was being ‘ridiculous’ and that the caller’s cynicism might lead to ‘stupidity’, on listening to the broadcast and taking into account the above factors (particularly the robust forum of talkback radio, which the caller had voluntarily participated in), we found no unfairness to the caller justifying regulatory intervention. We therefore do not uphold the complaint under the fairness standard.

Discrimination and Denigration

[19]  ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment and ‘denigration’ is defined as devaluing the reputation of a particular section of the community.¹⁵

[20]  The complainant argued the host painted ‘Hamas/Palestinians as the bad guys’ and was ‘pro-Israel’. The complainant also considered the broadcast could have been offensive to Palestinian people, including by directing the caller to ‘look into the darkest areas of the internet’.

[21]  Firstly, we note that the standard only applies to recognised sections of the community which are consistent with the grounds for discrimination listed in the Human Rights Act 1993. It does not apply to Hamas as an organisation, but does apply to the Palestinian people.

[22]  While we acknowledge the sensitivity around discussion of the Israel and Hamas conflict, we do not consider the host’s comments, including his direction as to where the caller could find evidence on the attack, amounted to discrimination or denigration of the Palestinian people for the purposes of the standard. The host’s comments specifically referenced the acts of Hamas and did not reference Palestinian people at any point in the segment. We do not consider the host’s comments could be said to encourage the different treatment of Palestinians or to tarnish their reputation. Accordingly, we do not uphold the complaint under the discrimination and denigration standard.

Remaining standards

[23]  The balance and accuracy standards apply only to news, current affairs and factual programming. Talkback radio does not generally fall within these genres.¹⁶ While we have occasionally assessed talkback under these standards, given the ‘opinion focused’ content in this broadcast, and the segment’s focus on the merits of belief versus cynicism with regard to news content, we see no reason to depart from our usual position.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
31 January 2024    

Appendix

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

1  Dan Alderston’s formal complaint – 25 October 2023

2  NZME’s response to the complaint – 24 November 2023

3  Alderston’s referral to the Authority – 26 November 2023

4  NZME’s further comments – 11 December 2023

5  Alderston’s further comments – 14 December 2023

6  NZME’s further comments – 15 December 2023

7  Alderston’s final comments – 5 January 2023

¹ Blomfield and NZME Radio Ltd, Decision No. 2022-027; Day & Moss and NZME Radio Ltd, Decision No. 2018-090; and Haines and NZME Radio Ltd, Decision No. 2017-039
² Standard 1, Code of Broadcasting Standards in New Zealand 
³ Commentary, Standard 1, Code of Broadcasting Standards in New Zealand, page 8
⁴ Standard 4, Code of Broadcasting Standards in New Zealand
⁵ Standard 8, Code of Broadcasting Standards in New Zealand
⁶ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand, page 20
⁷ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁸ See for example Blomfield and NZME Radio Ltd, Decision No. 2022-027 at [13]
⁹ Guideline 1.1
¹⁰ See for example Curran and NZME Radio Ltd, Decision No. 2021-165 and Grant & Findlay and NZME Radio Ltd, Decision No. 2021-117
¹¹ Standard 8, Code of Broadcasting Standards in New Zealand, page 19
¹² Guideline 8.1
¹³ Guideline 8.2
¹⁴ See for example Blomfield and NZME Radio Ltd, Decision No. 2022-027 at [19]
¹⁵ Guideline 4.1
¹⁶ See for example: Blomfield and NZME Radio Ltd, Decision No. 2022-027; Day & Moss and NZME Radio Ltd, Decision No. 2018-090; and Haines and NZME Radio Ltd, Decision No. 2017-039