Birchfield and The Radio Network Ltd - 2004-213
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Brent Birchfield
BroadcasterNew Zealand Media and Entertainment
Complaint under section 8(1)(a) of the Broadcasting Act 1989
ZM radio in Timaru – announcer said that the owner of a rival radio station in Timaru had supported the launch of the new station and that his revenue would be cut in half – allegedly in breach of good taste and decency, privacy, fairness and social responsibility
Principle 1 (good taste and decency) – words used not in poor taste or indecent – not upheld
Principle 3 (privacy) – complainant publicly listed as director and owner of Port FM Ltd – not upheld
Principle 5 (fairness) – comments clearly light-hearted and very mild – not upheld
Principle 7 (social responsibility) – no suggestion that broadcaster failed to act in socially responsible manner – not upheld
This headnote does not form part of the decision.
 On 24 September 2004 The Radio Network Ltd commenced broadcasting a new ZM station in Timaru. During the first transmission the announcer stated:
Today’s launch of ZM has been heavily supported by Brent Birchfield of Port FM. Thank you Brent for supporting the ZM…there. It’s great news for Brent. It will cut his revenue in half.
 Brent Birchfield, the owner of Port FM Limited (a radio station in Timaru), complained to the Radio Network Ltd that the comments amounted to a breach of the Radio Code of Broadcasting Practice. He stated that he and his radio station were well known in Timaru.
 The complainant alleged that the comments did not maintain standards consistent with the observance of Principle 1 (good taste and decency). Mr Birchfield also contended that he had not been dealt with justly or fairly (Principle 5), as the comments “gratuitously poked fun” at him and his station and stated that his revenue would be cut in half.
 In addition, Mr Birchfield argued that the broadcast was not socially responsible (Principle 7) and that his privacy had been breached contrary to Principle 3 because his name had been disclosed without his consent.
 TRN assessed the complaint under Principles 1, 3, 5 and 7 and Guideline 7a of the Radio Code of Broadcasting Practice, which provide:
In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.
In programmes and their presentation, broadcasters are required to maintain standards consistent with the privacy of the individual.
In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.
In programmes and their presentation, broadcasters are required to be socially responsible.
Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:
i) factual; or
ii) a genuine expression of serious comment, analysis or opinion, or
iii) by way of legitimate humour or satire.
Broadcaster's Response to the Complainant
 In its response to the complainant, TRN stated that ZM is “an edgy radio station” and noted that the show complained about “has a reputation for entertainment and is adept at ‘poking the borax’ at a range of topics and people”.
 Considering whether the broadcast had breached Principle 1 (good taste and decency), the broadcaster contended that the comments were made in good humour in the context of a “well known, fun, edgy show”. It did not consider that the remarks breached good taste and decency.
 Similarly, TRN did not find that Principle 3 (privacy) had been breached. It alleged that the complainant was, by his own admission, a well known radio station owner in Timaru. The broadcaster contended that the only thing disclosed by the host was “a good humoured opinion”.
 Turning to consider Principle 5 (fairness), the broadcaster noted that the complainant was a “public figure” in the competitive business of radio. In declining to uphold the complaint alleging unfairness, it said:
There are frequent exchanges of banter across the competitive radio divide and there was no intention in this ‘tame’ little piece to do more than have a bit of fun.
 Finally, TRN referred to Guideline 7a in its consideration of whether the remarks amounted to a breach of Principle 7 (social responsibility). It argued that the comments were “clearly legitimate humour” and noted its surprise that the complainant had “taken the matter so seriously”. The broadcaster declined to uphold this aspect of the complaint.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr Birchfield referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He reiterated the points outlined in his original complaint to the broadcaster.
Broadcaster’s Response to the Authority
 The broadcaster added nothing further to its original reply to the complainant.
 The members of the Authority have listened to a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The Authority does not uphold the complaint, and records that it concurs with the decision of the broadcaster. In particular the Authority notes that:
 In relation to good taste and decency, the words used were not obscene, conveyed no obscene imagery and raised no issues at all of poor taste or indecency.
 In relation to privacy, Mr Birchfield is publicly listed as both director of and primary shareholder in Port FM Ltd. Accordingly, no issue of privacy arises in respect of broadcasting his name in this context.
 In relation to fairness, the words complained about were a mild and objectively inoffensive teasing of another local radio personality. No issue of fairness arises.
 In relation to social responsibility, the complainant provided no explanation of why he considered the broadcast to be socially irresponsible. The Authority can conceive of no manner in which the words complained of could be seen in this light.
For the above reasons the Authority does not uphold the complaint
Signed for and on behalf of the Authority
18 February 2005
The following correspondence was received and considered by the Authority when it determined this complaint:
- Brent Birchfield’s formal complaint – 8 November 2004
- The Radio Network Ltd’s decision on the formal complaint – 16 November 2004
- Mr Birchfield’s referral to the Authority – 2 December 2004
- The Radio Network Ltd’s response to the Authority – 20 December 2004