BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 6 (fairness) – host made comments that were personally abusive and threatening – Mayor Neil Sinclair, Deputy Mayor Jenny Shattock, named councillor, Classic Hits and its staff treated unfairly – host’s comments about other council members and staff were brief, general criticisms mainly related to professional capacity and as such they were not treated unfairly – host abused his position by using the airwaves to discredit council members and staff at a rival radio station – upheld in relation to 12 and 19 October broadcasts

Orders
Section 13(1)(a) – broadcast statement
Section 16(4) – costs to the Crown $2,500

This headnote does not form part of the decision.

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Background

[1]  The broadcasts subject to complaint consisted of two interviews on Cruise FM aired on 12 and 19 October 2012, in which the host and owner of Cruise FM, Johnny Dryden, and the interviewee, Councillor Lyn Corban, made comments that were critical of certain members of the South Waikato District Council (SWDC), including the Mayor and Deputy Mayor, and a rival radio station. In addition, a complaint was made about the broadcast of a Cruise FM news bulletin on 26 November 2012, in which Mr Dryden’s employee, the newsreader, reported on alleged inappropriate behaviour displayed by the Deputy Mayor at a recent council meeting.

[2]  The content of the broadcasts, the complaints, and the correspondence between the parties, indicate the existence of deep-rooted tensions within the Tokoroa community, between Mr Dryden and Councillor Corban on the one hand, and certain members of the SWDC and a rival radio station, Classic Hits 97.3 FM, on the other hand. One of the complainants, Jenny Shattock (the Deputy Mayor and manager of Classic Hits), alleges that, for personal and professional reasons, Mr Dryden has continuously used his position, as the owner of Cruise FM, to level false accusations and insults at her and other Classic Hits staff members, and at elected councillors and SWDC staff. The broadcasts subject to complaint are said to be examples of the type of content that regularly features on Cruise FM.

Complaints

[3]  Three members of the SWDC, namely, Neil Sinclair (the Mayor), Jenny Shattock (the Deputy Mayor), and Brenda Watkins (a councillor), made formal complaints to Cruise FM, the broadcaster, arguing that the interviews broadcast on 12 and 19 October contained comments that were derogatory, unfair, inaccurate, in bad taste, and in breach of the law and order standard. Kathy Anderson, a staff member at Classic Hits, also complained about the 19 October broadcast, on the same bases.

[4]  In addition, Ms Shattock made a formal complaint about the 26 November news item, arguing that it was inaccurate, denigrating, and in bad taste.

[5]  We consider that the fairness standard (Standard 6) is most relevant to the complainants’ concerns about the 12 and 19 October broadcasts, and we have limited our determination accordingly. The other standards raised by the complainants are addressed at paragraph [34] below.

[6]  In terms of the 26 November broadcast, Ms Shattock did not raise the fairness standard in her complaint, and so our assessment is limited to whether the standards she nominated were breached.

[7]  The focus of this decision therefore is:

• First, whether the 12 and 19 October broadcasts breached the fairness standard (Standard 6), as set out in the Radio Code of Broadcasting Practice.
• Second, whether the 26 November broadcast breached the broadcasting standards raised by Ms Shattock in her complaint.

[8]  The members of the Authority have listened to recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.

Nature of the items and freedom of expression

[9]  In assessing an alleged breach of broadcasting standards, we must give proper consideration to the right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. Any restriction on the right to free speech must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5). 

[10]  The starting point is to assess the value of the particular speech in issue, and then to balance this against the potential harm that is likely to result from allowing the unfettered dissemination of that speech. The 12 and 19 October interviews with Councillor Corban contained political commentary on issues facing the South Waikato community, and the perceived response to those issues by certain members of the SWDC. The 26 November news bulletin reported on the alleged behaviour of the Deputy Mayor, an elected representative of the local community, at a recent council meeting.

[11]  The broadcast of general criticisms of public figures and comment on political activity is usually legitimate and carries high value in terms of freedom of expression. This type of speech promotes accountability and transparency, and is generally in the public interest and welcomed in our democratic society. A strong justification, in terms of the harm caused by the broadcasts, is required to restrict the broadcaster’s right to have these types of discussions, and the audience’s right to be exposed to critique on political matters and aimed at public figures in their professional capacity.

[12]  The alleged harm, in terms of the underlying objectives of the relevant broadcasting standards, was said to derive from the host, Mr Dryden, using his position as the owner and host of Cruise FM, to launch a personal attack against SWDC members and staff, and a rival radio station and its staff. The substantive harm alleged was the creation of an unfairly negative and misleading impression of the individuals and organisations referred to, with a detrimental impact on their reputations and dignity.

Was any person referred to in the 12 and 19 October broadcasts treated unfairly?

[13]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[14]  One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.¹

[15]  The interviews with Councillor Corban, broadcast on 12 and 19 October, contained discussions about a high profile and controversial dog case involving significant expenditure of public money by the SWDC. Mr Dryden and Councillor Corban made comments that were critical of the Mayor, the Deputy Mayor, and other council members, in regards to the dog issue, and in terms of other council matters. For the most part, these comments were acceptable and legitimate political commentary on issues of importance and of interest to the local community.

[16]  While the broad issues discussed in the interviews were important because there is public interest in examining the actions of elected representatives, and Mr Dryden was entitled to express his opinion on these issues in a forceful and critical manner, we consider that, overall, the broadcasts were unfair. This is because they contained comments which, in our view, went beyond what could be considered acceptable comment on political activity. In particular, Mr Dryden made comments about the Mayor and the Deputy Mayor that were not related to their public or professional duties, but were personally abusive and insulting. The Authority has previously stated:²

[T]he fairness standard does not prevent criticism of public figures. Indeed, it is an essential element of free speech that even the most trenchant criticism of public figures be allowed… The question for the Authority is whether that criticism overstepped the boundaries of fairness, that is, whether it strayed into abusively personal territory.

[17]  During the interviews, Mr Dryden made the following comments:

• “I think the sooner somebody ballses up in the [SWDC] and pulls down the Mayoral message on the [SWDC] website, the less we’re going to be embarrassed by a dirty old dentist running our district.”
• “...if they ever want to balls up and pick up the phone and ring me or write a letter, I’ll reply to them... well you know why they don’t bother, because they know they’ve got nothing to stand on, they’ve got nothing to stand on and they prefer to play catty little games amongst emails, amongst phone calls, amongst meeting people in cafes around town...”
• “He [the Mayor]’s got a bitch following him around” (the use of the term “bitch” being a dog analogy and a clear reference to the Deputy Mayor).
• “Is our Mayor in good health? He didn’t sound in good health in the interview. I am actually glad you [Councillor Corban] interview on this radio station because you sound young and vibrant. He sounded quite old and unhealthy.”
• “I wonder whether I’ll get birthday wishes said on the radio like I did for my former boss, the catty one, you know the catty one” (this was a reference to the Deputy Mayor and manager of Classic Hits, and related to comments made by Mr Dryden in a previous broadcast).

[18]  These comments, among others, had an underlying tone of contempt towards the Mayor, the Deputy Mayor, and other council members, which permeated all three broadcasts, and was said to be typical of content regularly featured on Cruise FM. In making these comments, Mr Dryden used his position to personally criticise SWDC members, under the guise of public interest, and in the context of a discussion about political matters.

[19]  Mr Dryden claimed that his comment that the Mayor was a “dirty old dentist” was a reference to the Mayor’s previous career in dentistry and questions raised in that context about his personal hygiene. We think that the comment was open to being interpreted in another way, as contended by one of the complainants, and had the potential to be very damaging to the Mayor’s reputation, and in turn, his position in public office, especially in circumstances where he had no right of direct reply.

[20]  Mr Dryden also made comments about a rival radio station, and by implication a particular staff member at that station, claiming that that individual had approached one of his advertisers, “selling their wares with their undies down around their ankles”. Again, this could be very damaging to that individual. We accept that the station was not named. Nevertheless, given the history between the two rival stations, and that Tokoroa is a small community, we think that listeners could have understood the comment to be a reference to Classic Hits, and as an indirect reference to a particular staff member – whether or not the comment was intended to be understood or interpreted that way.

[21]  In addition, Mr Dryden made explicit threats towards a named councillor in the 19 October broadcast, as follows:

• “...the guy that gets the big bad cross – and this man wants be to very wary because I know a lot about his past from his days at Papatoetoe City Council and South Auckland – [name] needs a kick up the pants… so [name], just remember, that I know a little bit more about you than you would care to want other people to know about you in this community. Be very, very careful that you’re not acting out a personal grudge match.”
• “…I’m afraid [name] needs to watch his course. That’s the public warning from me out there on the radio today, he is not infallible, Lyn, and we’ve made many people fall from this radio station and not one of them have got me. I’ve got indemnity to defame, defamation insurance, and not one of them has approached me to put a claim, so my argument is that if you behave yourself in this community and contribute positively, I will be there and I will make sure you are looked after. Do the other way, and I’ll pull you up.”

[22]  Mr Dryden’s comments that he had “indemnity to defame” and “defamation insurance” and his boasting that “not one of them have got me”, displayed an attitude of superiority and Mr Dryden’s belief that he was above the law. The comments indicated his willingness to use the airwaves to discredit the SWDC and its current membership, and to advance his own personal agenda.

[23]  These comments had little, if any, value in terms of freedom of expression, and were, in our view, merely an opportunity for Mr Dryden to publicly abuse and insult members of the SWDC, as well as Classic Hits and its staff. The question for us is whether the harm caused by the broadcasts was of such a level that it outweighed the host’s right to free speech. We think that it was. Not only were the comments likely to impact negatively on the reputations and dignity of those referred to, but they also had the potential to discourage the effective performance by councillors in fulfilling their civil duty of serving and representing the interests of the community. The right to broadcast material carries with it privileges and responsibilities, including reasonable consideration of anyone who might be affected by a broadcast. We think that Mr Dryden has abused this privilege and overlooked what was required of him as a responsible broadcaster.

[24]  We therefore find that the 12 and 19 October broadcasts were unfair to Mr Sinclair, Ms Shattock, and the councillor who was threatened (see paragraph [21]). Classic Hits and its staff were also treated unfairly. We therefore uphold this part of the Standard 6 complaints.

[25]  The complainants also argued that the broadcasts were unfair to an unnamed SWDC staff member and to two other councillors mentioned in the broadcasts. Mr Dryden’s comments were as follows:

• “Is the person who updates the [SWDC] website, is English their second language?” (referring to alleged spelling mistakes on the website)
• “I hope there are no kids being looked after by the people… watching the way they look after people who actually care about animals, you wonder whether they would actually be good parents, and I am particularly looking at [named councillor] and Neil Sinclair, are they good parents, by the way they are behaving, you know, with this dog issue?”
• “[Named councillor] was a ‘nobody’ in this town before he jumped on the council.”

[26]  We are satisfied that these comments were general in nature and/or related to the individuals mentioned in their professional capacities, as opposed to being personally abusive. Accordingly, we decline to uphold these aspects of the complaints.

Did the 26 November item breach the broadcasting standards raised in the complaint?

[27]  The brief news bulletin, which presented itself as “local news,” reported on alleged events at a council meeting which discussed the re-distribution of remuneration of a recently deceased elected member. The newsreader stated:

At least three members of the public were shocked at the blatant disrespect displayed by Deputy Mayor Jenny Shattock towards the late Councillor [name]… On two occasions during the morning Councillor Shattock laughed openly when the late Councillor’s name was mentioned… Cruise FM News said this was not a shocked or nervous laugh, but deliberate, and not the type of behaviour people would expect from the Deputy Mayor, particularly when there were nine impressionable students in the public gallery, as well as two journalism students from Hamilton. Perhaps, if this is indicative of the calibre of the senior counsellors at the [SWDC], the district should be welcoming amalgamation with open arms.

[28]  Ms Shattock argued that the information contained in the news bulletin was inaccurate, in breach of Standard 5.

[29]  Standard 5 applies to news, current affairs and factual programmes. The content formed part of what Cruise FM defined as “news” only to use it as a vehicle for its own opinions, outlandish interpretations and innuendo. The item discredited all news programmes and its “spin” reflected on Cruise FM and the wider issues raised in this complaint. Despite calling itself news, the item did not reflect basic journalistic principles. Opinions can and do form part of news, so in this instance we are unable to make a determination as to whether the item was accurate on points of “fact”. However, it is our view that listeners would have recognised the item for what it was – not news but innuendo and spin from a station not respecting its responsibilities as a broadcaster.

[30]  Had Ms Shattock raised balance or fairness, we think there would be a strong argument for upholding her complaint under either or both of those standards, as plainly this item was not impartial, it cast aspersions on Ms Shattock’s character and she was given no right of reply.

[31]  The item was illustrative of the ongoing pattern of broadcasts by Cruise FM, designed to discredit members of the SWDC and to influence public opinion in this respect by using the airwaves inappropriately. We consider that our findings in regard to the 12 and 19 October broadcasts should be sufficient to indicate to Cruise FM our views and expectations surrounding content of this nature.

[32]  Ms Shattock also argued that the broadcast breached the good taste and decency, and discrimination and denigration standards. A summary of our findings on these standards is set out at paragraph [34] below.

[33]  Accordingly, we decline to uphold Ms Shattock’s complaint about the 26 November broadcast.

Did the broadcasts breach the other standards raised in the complaints?

[34]  The complainants also raised standards relating to good taste and decency (Standard 1), law and order (Standard 2), accuracy (Standard 5), and discrimination and denigration (Standard 7). In summary, these standards were not breached because:

• The good taste and decency standard (Standard 1) is primarily concerned with the broadcast of sexual material, nudity, violence and coarse language, though it can be considered in relation to other material that has the potential to offend or distress the audience. While we accept that the broadcasts offended the complainants, their concerns in this respect are better addressed in relation to fairness and the treatment of them as individuals (rather than considering whether the audience as a whole would have been offended).
• The 12 October item did not contain anything that would encourage listeners to break the law or that otherwise promoted or condoned criminal activity (Standard 2).
• The comments made in the 12 and 19 October interviews amounted to the host’s and Ms Corban’s “opinion” rather than statements of fact, and were therefore exempt from standards of accuracy under guideline 5a to the accuracy standard (Standard 5). In any case, we think the complainants’ concerns in this respect are more appropriately addressed as matters of fairness.
• The discrimination and denigration standard applies to sections of the community, and not to individuals (Standard 7).

[35]  Accordingly, we decline to uphold the complaints that these standards were breached.

For the above reasons the Authority upholds the complaints that the broadcast by Cruise FM Waikato of items on 12 and 19 October 2012 breached Standard 6 (fairness) of the Radio Code of Broadcasting Practice.

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

Submissions on Orders

[37]  Ms Shattock and Mr Sinclair submitted that Mr Dryden should be ordered to broadcast a statement summarising the decision and acknowledging that his behaviour was not acceptable, and including an apology to those named or alluded to in the broadcasts. Mr Sinclair asked that the statement be aired in similar timeslots to the original broadcasts. All of the complainants submitted that Mr Dryden should be ordered to provide personal letters of apology to those he treated unfairly, and/or an assurance that he would not make such comments in future. Ms Shattock and Ms Anderson asked the Authority to order costs to the Crown to deter Mr Dryden from continuing to broadcast such comments.

[38]  Mr Dryden accepted that a broadcast statement summarising the upheld aspects of the decision was appropriate. He submitted that an order of costs to the Crown was not warranted because nine months had elapsed since the broadcasts and no further complaints had been made to Cruise FM. Mr Dryden asserted that Cruise FM had “proactively toned down” its regular weekly interviews with Ms Corban. He argued that ordering a personal apology was outside the Authority’s jurisdiction.

Authority’s decision on Orders

[39]  Having considered the parties’ submissions on orders, we are satisfied that ordering a broadcast statement summarising the upheld aspects of our decision and including an apology for the unfair treatment of those referred to, is appropriate. As outlined in the Orders below, given the nature of the complaints, the Authority will draft the statement and issue it to Cruise FM for comment (the Authority will have the final say on its content). The statement should then be pre-recorded and provided to the Authority for its approval. It will be broadcast during the same timeslot on Cruise FM, immediately preceding the interview with Councillor Corban. In regard to the parties’ submissions that Mr Dryden should be ordered to send personal letters including apologies and assurances, we note that our jurisdiction is limited to ordering a “published” statement so we are unable to require Cruise FM to write personal apologies or undertakings.

[40]  Costs to the Crown are usually ordered to mark a significant departure from broadcasting standards. We have found that Mr Dryden abused his position as a public broadcaster by making comments across a number of broadcasts that were personally abusive and insulting, and that the comments were likely to have a detrimental impact on the reputations and dignity of those referred to. We therefore consider that an order of costs to the Crown is warranted. We have taken into account previous decisions by the Authority, and in all the circumstances we consider that costs in the amount of $2,500 would be appropriate.

Orders

The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:

1.  Pursuant to section 13(1)(a) of the Act, the Authority orders Cruise FM to broadcast a statement. That statement shall:

• be written by the Authority and sent to Cruise FM for comment
• be pre-recorded and provided to the Authority for its approval
• be broadcast within one month of the date of this decision
• be broadcast at a time and on a date to be approved by the Authority
• contain a comprehensive summary of the upheld aspects of the Authority’s decision
• contain an apology to members of the SWDC, Classic Hits and its staff for the unfair treatment of them.         

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 of the manner in which the above order has been complied with.

2.  Pursuant to section 16(4) of the Act, the Authority orders Cruise FM to pay to the Crown costs in the amount of $2,500 within one month of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
25 July 2013

Appendix

The correspondence listed below was received and considered by the Authority when it determined these complaints:

Kathy Anderson’s complaint

1          Kathy Anderson’s formal complaint about 19 October broadcast – 7 November 2012

2          Cruise FM’s response to the complaint – 5 December 2012

3          Ms Anderson’s referral to the Authority – 7 December 2012

4          Cruise FM’s response to the Authority – 21 March 2013

5          Ms Anderson’s final comment – 3 April 2013

6          Ms Anderson’s submissions on orders – 19 June 2013

7          Cruise FM’s submissions on orders (relating to all complaints) – 10 July 2013

Jenny Shattock’s complaint about 12 October broadcast

1          Jenny Shattock’s formal complaint about 12 October broadcast – 29 October 2012

2          Cruise FM’s response to the complaint – 24 December 2012

3          Ms Shattock’s referral to the Authority – 21 and 29 January 2013

4          Cruise FM’s response to the Authority – 21 March 2013

5          Ms Shattock’s final comment – 4 April 2013

6          Cruise FM’s final comment (including attachments) –18 April 2013

7          Ms Shattock’s further comments – 27 April 2013

8          Ms Shattock’s submissions on orders – 24 June 2013

Jenny Shattock’s complaint about 19 October broadcast

1          Ms Shattock’s formal complaint about 19 October broadcast – 26 and 29 October 2012

2          Cruise FM’s response to the complaint – 24 December 2012

3          Ms Shattock’s referral to the Authority – 22 January 2013

4          Ms Shattock’s final comment – 4 April 2013

5          Cruise FM’s response to the Authority (including attachments) – 21 March and 18 April 2013

6          Ms Shattock’s further comments – 27 April 2013

7          Ms Shattock’s submissions on orders – 24 June 2013

Jenny Shattock’s complaint about 26 November broadcast

1          Ms Shattock’s formal complaint about 26 November broadcast – 26 November 2012

2          Cruise FM’s response to the complaint – 21 December 2012

3          Ms Shattock’s referral to the Authority – 11 January 2013

4          Cruise FM’s response to the Authority – 21 March 2013

5          Ms Shattock’s final comment – 3 April 2013

6          Cruise FM’s final comment – 18 April 2013

Neil Sinclair’s complaint about 12 and 19 October broadcasts

1          Neil Sinclair’s formal complaint about 12 and 19 October broadcasts – 2 November 2012

2          Cruise FM’s response to the complaint – 21 January 2013

3          Mr Sinclair’s referral to the Authority – 23 January 2013

4          Cruise FM’s response to the Authority – 21 March 2013

5          Further comments from Mr Sinclair – 6 May 2013

6          Mr Sinclair’s submissions on orders – 24 June 2013

Brenda Watkins’ complaint about 12 and 19 October broadcasts

1          Brenda Watkins’ formal complaints about 12 and 19 October broadcasts – undated

2          Cruise FM’s response to the complaints – 29 November 2012

3          Ms Watkins’ referral to the Authority (including email correspondence with Cruise FM)
            – 18 December 2012

4          Cruise FM’s response to the Authority – 21 March 2013

5          Ms Watkins’ submissions on orders – 21 June 2013

²Kiro and RadioWorks Ltd, Decision No. 2008-108, at paragraph [78]