BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
Willie and JT Show – hosts discussed sentencing of ‘Urewera Four’ members – comparisons made with treatment of complainant who was discharged without conviction after being found guilty of similar charges – complainant phoned in to the programme and explained background to his case – hosts accused him of lying and called him a “psychopath” and “sociopath” and compared him to “Hannibal Lecter” – allegedly in breach of standards relating to privacy, controversial issues, accuracy, fairness, discrimination and denigration, and responsible programming

Findings
Standard 6 (fairness) – hosts’ use of the terms “psychopath” and “sociopath” and comparison with “Hannibal Lecter” amounted to personal abuse – Mr Shapiro unable to defend himself as phone call had ended – Mr Shapiro treated unfairly – upheld

Standard 4 (controversial issues) – broad focus of the item was a controversial issue of public importance – however, item did not amount to a “discussion” of that issue but was a presentation of hosts’ opinions on Mr Shapiro and his court case – in any event, broadcaster made reasonable efforts, and gave reasonable opportunities, to present significant viewpoints – not upheld

No Order

This headnote does not form part of the decision.

Introduction

[1]  During the Willie and JT Show, a talkback radio programme, the hosts discussed the recent sentencing of members of the ‘Urewera Four’, and made comparisons with the judicial treatment of Bernard Shapiro, a musician with the Christchurch Symphony Orchestra, who was discharged without conviction in 2009 after being found guilty on similar charges under the Arms Act 1983. Mr Shapiro phoned in to the programme and explained the background to his case. After the phone call ended, the hosts called him a “psychopath”, and “sociopath”, and compared him to “Hannibal Lecter”. The show was broadcast on Radio Live on the afternoon of 28 May 2012.

[2]  Bernard Shapiro and Stan Blanch made formal complaints to RadioWorks Ltd, the broadcaster, alleging that the programme, and in particular the hosts’ comments, were unfair, inaccurate, unbalanced, and irresponsible. In addition they argued that the comments encouraged discrimination and denigration, and breached Mr Shapiro’s privacy.

[3]  Standards relating to controversial issues and fairness are the most relevant to the complainants’ concerns, and we have limited our determination accordingly. The complainants also raised standards relating to privacy, accuracy, discrimination and denigration, and responsible programming. In summary, these standards were not breached because:

• Mr Shapiro was an active and willing participant, and his name and court case are matters of public record (privacy)
• the hosts did not make any unqualified statements of fact (guideline 5a), and the accuracy complaints are better addressed as matters of fairness (accuracy)
• the discrimination and denigration standard applies to sections of the community, not individuals
• the interview formed part of a talkback radio programme, and the content was not socially irresponsible; it would not have caused panic, alarm or distress to the general audience (responsible programming).

[4]  The issue therefore is whether the programme, and specifically the hosts’ comments, breached Standards 4 (controversial issues) and 6 (fairness) of the Radio Code of Broadcasting Practice.

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

Nature of the programme and freedom of expression

[6]  The right to freedom of expression is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In determining an alleged breach of broadcasting standards, we assess the importance of the particular speech and the extent to which the values of freedom of expression are engaged, and weigh this against the level of harm in terms of the underlying objectives of the relevant broadcasting standards.

[7]  The context of the discussion was the sentencing of members of the ‘Urewera Four’, Tame Iti and Te Rangikaiwhiria Kemara, to two-and-a-half years’ imprisonment on firearms charges. The focus of the comments subject to complaint was Mr Shapiro and his court case, and, in particular, the circumstances leading to his being discharged without conviction for similar charges. The hosts sought to compare the judicial treatment of Mr Shapiro on the one hand with that of Tame Iti and Te Rangikaiwhiria Kemara on the other, a comparison which had been highlighted publicly by Māori Party MP Ururoa Flavell.¹

[8]  The discussion raised questions about the adequacy of our justice system, in particular in terms of the fairness and consistency of sentencing, and whether standards differed depending on the accused’s background and race. There was a high level of public interest in this discussion, which the courts have suggested is an indicator that speech is socially important.²

[9]  We therefore think we should be cautious about interfering with the programme’s broadcast and reception.

Was Mr Shapiro treated unfairly?

[10]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[11]  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.³

[12]  Mr Shapiro said that he called the programme to talk openly and honestly about his court case, but instead he was laughed at, and accused of lying. The complainants argued that the hosts were unfair in their treatment of Mr Shapiro, and specifically that the hosts suggested he was “let off lightly” compared to Tame Iti because he was “white”; they called him a “psychopath” and compared him to “Hannibal Lecter”; and they suggested that he was “going to kill people, train terrorists, and had kept machine guns and grenades”.

[13]  In addition, the complainants argued that the hosts inaccurately stated that Mr Shapiro was found guilty on seven firearm-related charges. Mr Shapiro said that it was wrong for the hosts to say that he “got done”, as he was discharged without conviction. He said that he was found guilty on technical grounds arising from the fact he owned the property where the items were discovered.

[14]  RadioWorks referred to the robust nature of talkback radio, and said there was a reasonable expectation that hosts would make “narrow, one-sided, hyperbolic and controversial statements ‘for effect’ and to generate discussion and debate”. It  accepted that Mr Jackson made comments that were “deliberately challenging and antagonistic”; however, it considered that the comments were clearly extreme and delivered with humour so were unlikely to be taken seriously. Overall, it considered that Mr Shapiro was given ample opportunity to put forward his perspective and so listeners were able to make up their own minds about Mr Shapiro and his court case.

[15]  Mr Shapiro, when he called the programme, outlined the background to his case and explained that he had “acted in good faith, looking after a firearms case for a friend who had lost his firearms licence” and that he was “found guilty only on the act of possession because [he] owned the property… [but] actually did not have any idea what [he] had”. He said the judge found him to be “a man of good character who thought [he] was doing something good” but who “unfortunately, through naivety… had taken someone else’s word and not searched through all the other bits and pieces”.

[16]  It was clear that the hosts were sceptical of Mr Shapiro and his explanation. For example, JT stated, “One other thing, Bernard, when you get an armed cache of this sort it’s huge, it’s heavy, it’s big, there’s a lot in it, and this didn’t stir your imagination or your curiosity at all, to open it and think ‘my word, this is half a ton of explosives’?” Willie Jackson stated:

Bernard, this sounds, I mean you know honestly, we’re not stupid… you just sound too lovely, mate…Bernard, because if I was the lawyer on the other side I would think you were a big bullshit artist…this just sounds like a bloody tale, a fairytale, Bernard, seriously…this is almost an insult to our intelligence. You get all this ammunition and you don’t check it out… use a bit of common-sense… it doesn’t sound right, Bernard… and you got off very lightly didn’t you… how did you pay? You only had to pay $5,000, big deal…

[17]  It is permissible for hosts to be critical and challenge the views of participants or individuals being discussed, and we consider that these comments were acceptable in the context of talkback radio. We agree with the broadcaster that there is an implied understanding on the part of callers, that by choosing to take part in such programmes, they may be challenged in a manner that could be construed as rude or offensive. In addition, we do not consider that it was unfair for the hosts to say that Mr Shapiro “got done”, considering that he was found guilty (as conceded by Mr Shapiro), even though he was then discharged without conviction at sentencing.

[18]  However, the hosts did not stop here, and following the telephone conversation with Mr Shapiro, the hosts’ criticism of him and his explanation of events, escalated. In particular, they made the following comments:

• “I actually think he’s worse (than Tame Iti)… he just sounds like a psychopath… sounds like a total psychopath, just my opinion, Mr Shapiro…” (Willie)
• “There is no doubt… does anybody believe Bernard? Is Bernard this loving, caring symphony orchestra player, do you believe him, or reckon he’s worse than… geez he was lucky to get off those charges, how gullible do you get… total psychopath, sociopath… 0800 Radio Live, if you believe Bernard Shapiro. Give me a break…” (Willie)
• “If I took your view, [Willie], he did come across as a very credible Hannibal Lecter... a sociopath waiting to explode”. (JT)

[19]  Later in the programme the hosts laughed at a caller’s comment, “Hey, David Bain was in a choir as well so… you’re bang on the button. [Mr Shapiro] is a nutter...”

[20]  In our view, while the hosts’ comments started off innocently enough, their subsequent use of extreme terms such as “psychopath” and “sociopath”, and the comparison of Mr Shapiro to “Hannibal Lecter”, when he was no longer on air or able to defend himself, went beyond what could be considered simply “rude” or “offensive”.

[21]  We note the broadcaster’s contention that because the comments were clearly extreme and apparently delivered with humour, they were unlikely to be taken seriously. While we accept that reasonable listeners were not likely to seriously believe that Mr Shapiro was a psychopath as a result of the broadcast, in our view the comments nevertheless overstepped the boundaries of fairness and strayed into “abusively personal territory”.⁴ They created an unfairly negative impression of Mr Shapiro’s character and conduct, and the potential harm to his reputation and dignity was significant.

[22]  For these reasons, and giving full weight to the requirements of the New Zealand Bill of Rights Act 1990, we find that upholding the fairness complaint would be a reasonable and proportionate limit on the broadcaster’s right to freedom of expression. Accordingly, we uphold the complaints as a breach of Standard 6.

Did the item discuss a controversial issue of public importance requiring the presentation of significant viewpoints?

[23]  Standard 4 states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[24]  The Authority has previously stated that the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.⁵ The standard only applies to programmes which discuss “controversial issues of public importance”, and therefore this objective is of vital importance in a free and democratic society.

[25]  As noted above, the focus of the programme was Mr Shapiro and the background to his court case, in the context of the recent sentencing of Tame Iti and Te Rangikaiwhiria Kemara. We accept that questions about the adequacy of our justice system would be of concern to members of the New Zealand public, and that in the context of the ‘Urewera Four’ case, the issue had topical currency and excited conflicting opinion. We therefore accept that the focus of the programme was a controversial issue of public importance.

[26]  However, the programme did not amount to a “discussion” of that issue, as it did not purport to present a serious and even-handed examination of the perceived inadequacies of our justice system in terms of the alleged inconsistent sentencing. Rather, it was simply a presentation of the hosts’ opinions of Mr Shapiro and his court case. Guideline 4a recognises that talkback radio may be subject to a lesser requirement to present a range of views, and the Authority has previously stated that listeners do not expect talkback radio to be balanced to the same extent as other genres.⁶

[27]  We are satisfied that in this context the broadcaster made reasonable efforts, and gave reasonable opportunities, to present significant viewpoints. The very nature of talkback, which has an open line format, allows for listeners to call in and put forward alternative perspectives on a controversial issue of public importance.⁷ Here, Mr Shapiro called the programme and provided his perspective uninterrupted. He explained the background to his case and sought to distinguish it from the ‘Urewera Four’, so listeners could make up their own minds about whether or not his case was comparable, and therefore whether his sentence was justified.

[28]  For these reasons, we decline to uphold the Standard 4 complaint.

For the above reasons the Authority upholds the complaint that the broadcast by RadioWorks Ltd of the Willie and JT Show on 28 May 2012 breached Standard 6 of the Radio Code of Broadcasting Practice.

[29]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. Taking into account the nature of the breach, we consider that the publication of this decision is sufficient in all the circumstances.  

Signed for and on behalf of the Authority

Peter Radich
Chair
24 October 2012