BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

Warning: This decision contains coarse language that some readers may find offensive

[This summary does not form part of the decision]

The Authority has not upheld a complaint that the action taken by NZME in response to a breach of the good taste and decency standard during an episode of the programme Bhuja was insufficient. The Authority agreed that the programme breached standards, by failing to signal to viewers that a highly aggressive interview was staged, and by broadcasting offensive language. However, the Authority found the action taken by the broadcaster holding the hosts to account with regard to language used, was proportionate to the breach and any further action would unreasonably limit the broadcaster’s right to freedom of expression. The Authority also found that the fairness, discrimination and denigration, violence and accuracy standards did not apply to the material broadcast.

Not upheld: Good Taste and Decency (Action Taken), Fairness, Discrimination and Denigration, Violence, Accuracy

The broadcast

[1]  An episode of comedy radio show Bhuja, broadcast at 4:15pm on 31 July 2019, included a mock interview with a man advocating for a recycling plant to be built in Auckland, for Aucklanders, using money from national taxes. The interview descended into aggressive argument about whether Aucklanders thought they were more important than the rest of New Zealand, and ended with the interviewee saying ‘fuck you’ and one of the hosts calling the interviewee an ‘arsehole’.

[2]  The Authority has listened to a recording of the broadcast complained about and has read the correspondence listed in the Appendix.

The complaint

[3]  Reid Beban complained that the broadcast breached the good taste and decency, fairness, discrimination and denigration, violence and accuracy standards of the Radio Code of Broadcasting Practice for the following reasons:

• The interview was ‘absolutely ridiculous and unprofessional’ and ended in a ‘full blown argument’.
• The guest was verbally assaulted by one presenter who was ‘yelling and abusing them in a violent manner’ and not given ‘reasonable opportunity to comment’.
• The interview included ‘offensive and aggressive language’ for ‘an extended period’.
• ‘[We] have the radio playing in the office and the commotion on the radio caused several clients to comment at how offensive the comments were.’
• It was not clear that the broadcast was satire or a staged interview.
• Hosting a fake or staged interview is ‘at best morally ambiguous and at worst false marketing and propaganda’, as ‘hosts could abuse their platform to spread their own opinions about any topic that they wish, and have the debate “go their way”’.
• ‘In my opinion the interview was not presented with any hint of satire, and the opinions expressed in the interview could lead to real world consequences, such as people supporting the views expressed in the interview, based on false or misleading evidence presented during the airing, under the guise of comedy.’
• This ‘sets a dangerous precedent’ where broadcasters could ‘sway public opinion about local, regional or national politics as long as they maintain some sense of satire in the event that a complaint is raised’.

The broadcaster’s response

[4]  The broadcaster, NZME Radio Ltd (NZME), explained:

[H]aving discussed the broadcast with the Content Director, it transpires that the guest was a fictitious person and the interview was intended to be humorous.

[5]  NZME upheld the complaint under the good taste and decency standard as the language used in the broadcast (specifically, ‘arsehole’ and ‘fuck you’) was found to be inappropriate in an interview situation by the BSA in its research ‘Language that may offend in broadcasting’.¹ NZME ‘recognised that the hosts overstepped the mark on this occasion’ and informed Mr Beban that they ‘have been counselled in regard to their language and to be mindful of how they engage with guests in future.’

[6]  NZME did not uphold any of the remaining standards for the following reasons:

Violence

• This standard rarely applies to radio.
• There was ‘no reference to violence or incitement to violence.’

Discrimination and Denigration

• The standard only applies to sections of the community protected under the Human Rights Act 1993.
• The complainant has not identified which standard of the community has been denigrated or discriminated against.

Fairness

• ‘In this case, the hosts engaged in a mock interview with a fictitious guest, who was a willing participant in the segment.’
• NZME appreciates that this may not have been apparent, however it considers there was no breach of this standard.

Accuracy

• This standard ‘only applies to news and current events programmes, of which Bhuja is not.’

The relevant standards

[7]  The good taste and decency standard (Standard 1) states that current norms of good taste and decency should be maintained, consistent with the context of the programme. The Authority will consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause widespread undue offence or distress.²

[8]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. A consideration of what is fair will depend on the nature of the programme.³

[9]  The discrimination and denigration standard (Standard 6) protects against broadcasts which encourage the denigration of, or discrimination against, 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.

[10]  The violence standard (Standard 4) states that broadcasters should exercise care and discretion when dealing with the issue of violence.

[11]  The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The purpose of this standard is to protect the public from being significantly misinformed.⁴

Our findings

[12]  The starting point when we determine a complaint about an alleged breach of broadcasting standards is to recognise the importance of the right to freedom of expression. We weigh the value of the broadcast, as well as the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused to individuals, or to audiences generally, as a result of the broadcast.

[13]  Satire and humour are important and valued parts of freedom of expression. Programmes of this kind may employ performance techniques for the purposes of comedic effect and entertainment that would in other contexts be considered aggressive or offensive. However, as we discuss below, it is important that where such techniques are used, it is signalled to the audience, so that they can understand the context of the programme.

[14]  Before we turn to the standards, we wish to address what we see as the complainant’s key concern. Mr Beban argued in his submissions that it was not clear that the interview was fake and intended to be satirical, which was misleading to viewers. He was concerned that staged interviews could be used by broadcasters to spread their own views, and opinions expressed ‘could lead to real world consequences’. We understand Mr Beban’s concerns and agree that it is important for broadcasters to clearly signpost for audiences when an interview is genuinely news or current affairs, or is a performance intended purely for entertainment. This distinction is important in determining when certain standards apply⁵ and we have previously encouraged broadcasters to take care not to mislead listeners even when presenting material intended to be entertaining rather than factual.⁶

[15]  We have previously found that Radio Hauraki is well-known for its challenging content and style of humour⁷ and has well-established audience expectations regarding edgy material.⁸ One of the hosts, Leigh Hart, has been described as ‘one of the worst professional radio hosts in New Zealand broadcasting history’ and his time on Radio Hauraki described as a ‘debacle of a chapter in New Zealand broadcasting history’.⁹

[16]  This particular interview quickly descended into a chaotic and inane argument with neither side trying to engage in genuine debate. The interview faded into a song which was then cut short by the continuing argument. These features did provide some suggestion that the interview was not real (in a real interview, the song would have played in full and we would expect that the producer would have intervened).

[17]  However, despite the above points and likely audience expectations of Radio Hauraki, we did not find the interview to be clearly satirical. The subject matter of the interview, recycling, is an important and topical issue, which would have contributed to listeners engaging with the interview as if it were real. The language and aggressive tone in the item that was not clearly satire would have been confronting for listeners. We consider the broadcaster should have better signposted the nature of the interview. 

[18]  For reasons we expand on below, we also agree that the language used went beyond what is generally acceptable on radio during children’s normally accepted listening times¹⁰ and consider NZME was correct to uphold the complaint under the good taste and decency standard.

Good taste and decency – Action taken

[19]  Where a broadcaster has upheld a complaint in the first instance and taken action with which the complainant is not happy, it is the Authority’s role to consider whether the action taken by the broadcaster was sufficient action to remedy the potential harm.

[20]  In making this assessment we must consider the severity of the conduct, the extent of actual or potential harm that may have arisen, and whether the action taken by the broadcaster appropriately remedied the alleged harm.¹¹

[21]  NZME upheld the complaint with regard to the language used. We agree that ‘arsehole’ and the phrase ‘get fucked’ are unsuitable for broadcast at a time when children may be listening and when such language is outside audience expectations. We have previously found language like this to be unexpected and offensive to many listeners, especially due to audience expectations for content broadcast at this time of day.¹²

[22]  To address the breach, NZME counselled the hosts in regard to their language and to be mindful of how they engage with guests. We consider that this was a step taken by the broadcaster to hold the hosts to account for their conduct which fell below standards. In the context of a radio station that is known for its edgy approach and adult target audience, we find this to be a sufficient response to the breach and any further action would be disproportionate and unreasonably limit the broadcaster’s freedom of expression.

[23]  We have considered whether it would have been appropriate for the presenters to have made an apology on air at the time of the initial complaint. While we do not condone the language used (and this decision stands as an endorsement of the uphold of the complaint) we do not consider that an on air apology was required in light of the immediate internal actions taken by the broadcaster to deal with the issue and counsel the hosts involved. We note also that one of the hosts, Leigh Hart, no longer works at Radio Hauraki, as of 1 November 2019.¹³

[24]  For those reasons, we do not uphold the complaint that there was insufficient action taken under the good taste and decency standard.

Remaining standards

[25]  We consider that the remaining standards raised by the complainant were not applicable for the following reasons:

• Fairness: This standard only applies to individuals or organisations taking part or referred to in a broadcast. As the guest in the interview was a willing participant, acting the part of a fictitious character, there can be no argument that he was treated unfairly by the broadcaster for the purposes of this standard.¹⁴
• Discrimination and Denigration: The complainant has not specifically identified a section of the community which was discriminated against or denigrated.¹⁵ However, if his complaint under this standard is directed at discrimination or denigration against Auckland residents, we note that the standard applies only to recognised ‘sections of the community’, consistent with the grounds for discrimination listed in the Human Rights Act 1993 (and Auckland residents are not such a section of the community).
• Violence: There was no description of or reference to violence in the broadcast.¹⁶
• Accuracy: The accuracy standard only applies to news, current affairs and factual programming. Bhuja is not such a programme.¹⁷

For the above reasons the Authority declines to uphold the complaint.
 

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

22 January 2020

Appendix

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

1.               Reid Beban’s complaint to NZME – 31 July 2019

2.               NZME’s response to the complaint – 21 August 2019

3.               Mr Beban’s referral to the Authority – 21 August 2019

4.               NZME’s response to the referral – 6 September 2019

5.               Mr Beban’s final comments – 26 September 2019

6.               NZME’s final comments – 11 October 2019

¹ ‘Arsehole’ was considered inappropriate for an interview situation on radio by 48% of people surveyed; ‘fuck’ was considered inappropriate by 64% and ‘get fucked’ by 70%.
2 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
³ Guideline 11a
⁴ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁵ For example, the accuracy and balance standards only apply to news, current affairs and factual programmes.
⁶ See Neumegen and MediaWorks Radio Ltd, Decision No. 2018-014 at [13]
⁷ See Hagger and The Radio Network, Decision No. 2014-074, Neal and The Radio Network Ltd, Decision No. 2014-041
⁸ See Leighton and NZME Radio, Decision No. 2018-034
⁹ See ‘Leigh Hart farewells Radio Hauraki’ (Stuff, 1 November 2019)
¹⁰ Children’s normally accepted listening times are usually up until 8:30pm and especially before school and after school (see Definitions, Broadcasting Standards in New Zealand Codebook, page 9)
¹¹ Horowhenua District Council and MediaWorks Radio Ltd, Decision No. 2018-105 at [19]
¹² See for example Ragoonanan and Base FM, Decision No. 2013-055
¹³ See ‘Leigh Hart brings in emotional support dog to announce Radio Hauraki departure’ (Stuff, 24 October 2019)
¹⁴ Guideline 11b
¹⁵ Guideline 6a
¹⁶ Guideline 4b
¹⁷Bhuja is a ‘chat, comedy and music show’ that gives a ‘broad daily dissection of everyday life’ – ‘Bhuja boys Leigh Hart and Jason Hoyte given daily slot on Hauraki’ (StopPress, 5 February 2015)