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 about a talkback programme which discussed the protests and occupation of Parliament. The Authority found the programme was within audience expectations and did not contain language in breach of the good taste and decency standard. Callers were not treated unfairly, given the talkback environment. The remaining standards were not breached or did not apply.

Not Upheld: Good Taste and Decency, Fairness, Discrimination and Denigration, Programme Information, Balance, Accuracy

The broadcast

[1]  On 14 February 2022, from 1am–5am, Roman Travers hosted Overnight Talk with Roman Travers and invited listeners to call and text to discuss the protesters occupying Parliament grounds. Travers was clear the topic for discussion was the protest and the response from Speaker Trevor Mallard and the police. He asked to hear from people at the protest or people living in Wellington affected by the protest, and said he did not want to discuss the COVID-19 vaccine, its safety or efficacy.

[2]  Relevant sections from the broadcast include:

• ‘I think because there’s an element, whatever percentage that is, that looks Polynesian, there’s that, ooh, that trepidation, that, “oh we can’t step in here, because someone’s gonna say that it’s racist”, so everyone’s standing back behind barriers, eyeballing each other.’
• ‘This text – I don’t think – this text is not accurate: “Hi Roman, the protest was peaceful until Māori turned up. Go figure.” Well, where did you get that data from? You and your watching of the livestream? I think there’s always been a fair mix of races involved …’
• ‘This text is concerning and I will read it out, but I don’t want to get into the efficacy or effectiveness of a vaccine, because if you don’t understand it by now you’re probably never going to understand it: “Good morning Roman, I’m for them. I changed as to how they were injecting the children, it’s horrible. The information is out there and it’s not coming through. It’s not being reported and it’s so one-sided. It all comes out, but at what cost, our children’s future, our future, the future of the country. Oh my god, thanks for your time.” Says Jethro. Jethro, do you know what, that kind of comment it just makes me want to say nothing, because I can’t think of anything to describe how angry I am that you would write something so vacuous and stupid.’
• To a caller who suggested the vaccine was experimental, Travers asked ‘What expertise do you have to analyse that data to make any sense of it?’ When the caller replied ‘I have none,’ Travers ended the call.
• ‘You’ve now got linky, stinky you know poop on you know, what do you call them, portaloos, slishing and sloshing their ploppy crap down into the – they’re now talking about it being a health hazard. You’ve got children playing in the hay, mixed with the mud and the poos, this is just disgusting …if you’re listening in your faeces festering tent right now, with straw, muck and poos and wees, bugger off. You’re not allowed to be there, you’ve got very little support and you don’t even know why you’re there. It’s a lost cause. Go home.’
• To a caller who said ‘the only way you can disperse them…is spray them with tear gas’, Travers said ‘there’s children involved as well.’ Another caller said ‘I think they should give them a couple of hours warning and then get in there with tear gas. Enough warning to get the kids out and if they don’t get the kids out well then so be it. I mean this has got to end and got to end now.’ A third caller said, ‘Last person suggesting tear gassing was way over the top. As is bringing batons by the police.’
• To a caller from the protest, Travers said, ‘What gives you the right to stuff up Molesworth Street…it’s people like you that are just barking, barking bonkers.’ When the caller said the government was ‘creating apartheid,’ Travers responded ‘Oh, don’t be ridiculous, how offensive to anybody who has grown up in apartheid. Don’t be so stupid.’ Travers also said ‘What you said to me about the vaccine frightens the pants off me, because if you're telling children a whole lot of lies and crap about the vaccine because you clearly don't know the truth, you're responsible. We are here because of people like you.’
• One caller referred to the protesters as ‘dickheads’, and Travers said ‘Gee, I don’t know if we can use that language on the radio, I’ll have to read the manual…it’s fine, because I’d like to use stronger language’.
• Travers referred to protesters as ‘idiots’ and also discussed the Speaker, suggesting he was ‘childish’.

The complaint

[3]  Anthony Blomfield complained this broadcast was in breach of the good taste and decency, discrimination and denigration, balance, accuracy, fairness and programme information standards:

• There was ‘explicit use of swearing’ more than five times, ‘the most extreme words’.
• ‘He spent more than 2 minutes per caller to personally insult them, degrade them, slander their character and mental state.’
• ‘He misrepresented the callers views.’
• He said ‘there was not violence until they [Māori] turned up’.
• ‘He talked over people and hung up mid sentence.’
• ‘He called the callers stupid, dumb, idiots, uneducated, pathetic, waste of time, useless.’
• ‘He talked of weapons on the protest and keep exaggerating.’
• ‘He pulled facts, from nowhere with no source for us to check.’
• ‘He talked of children playing in “poos and turds and piss”.’
• ‘He let a caller say “gas them [and] if the kids don’t get out too bad”.’

[4] The complainant also raised the privacy, law and order and violence standards in the referral to the Authority. Pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider the complaint under the standard(s) raised in the original complaint to the broadcaster. The High Court has clarified that in certain circumstances:¹

…it is permissible [for the Authority] to fill gaps… or cross boundaries between Code standards…but only if these things can be done within the wording, reasonably interpreted, of the original complaint, and if a proper consideration of the complaint makes that approach reasonably necessary…

[5]  We considered whether aspects of the complaint impliedly raised the privacy, violence or law and order standards, particularly the allegation ‘‘He let a caller say “gas them [and] if the kids don’t get out too bad”.’ We consider this did not amount to an allegation the programme incited or depicted violence (as covered by the violence standard) nor that it encouraged illegal or seriously anti-social activity (as required by the law and order standard). The complaint also did not allege that the broadcast breached anyone’s privacy. We also consider the nature of the complaint can be, and is most appropriately, addressed under the good taste and decency and fairness standards.

The broadcaster’s response

[6]  NZME Radio Ltd (NZME) did not uphold the complaint for the following reasons:

Good taste and decency

• ‘Newstalk ZB is an adult targeted radio station for 30-64 year olds.’
• ‘Roman Travers is a talk host known for his frank and forthright discussion of all manner of topics and regular listeners would be aware of this.’
• The programme did not contain ‘the most extreme words’. ‘During the course of this programme, the host described the protest as a “shit‑show” on two occasions. The host also used the term “pissed off” and “crap”. A caller referred to the protesters as “dickheads”. A further caller used the phrase “crapping”.’ BSA research and guidance suggests these words have a low-level of offence and are acceptable when used on a talkback programme.
• ‘When a caller stated, “The only way you can disperse them I can see is spray them with tear gas”, the host responded to note that children were present. A second caller later stated, “I think they should give them a couple of hours warning and then get in there with tear gas. Enough warning to get the kids out well then so be it. I mean this has got to end and got to end now.” This statement was not endorsed by the host and a subsequent caller took issue with it when he stated, “the last person that suggested tear gassing was way over the top”.’

Programme information

• ‘This standard aims to ensure that audiences are properly informed as to the content of programmes so as to allow for the audience to make informed choices regarding whether they listen…We do not consider that the content of this programme, where the host is known for voicing strong opinions and engaging in robust debate, can be viewed as outside audience expectations.’

Discrimination and Denigration

• ‘While Māori are a recognised ‘[section] of the community’ protected under the Human Rights Act, to which this standard may apply, we do not consider that the statements of the host or the caller cited below can be viewed as encouraging discrimination against or denigration of Māori. The host read out the following text, “Hi Roman, the protest was peaceful until Māori turned up. Go figure”. However the host did not endorse this text but instead challenged the texter on the content of this text and was critical of this text.’

Balance

• This standard does not apply to talkback programmes.
• If it did apply, then ‘we do not believe that the segment can be viewed as lacking in balance due to the fact that it is an established principle of this standard that programmes can portray an issue from a particular perspective as long as this is clearly signalled in the programme. We consider that it would have been clear to listeners that it was the perspective of the host that was being presented here.’
• ‘In any event, during the course of this programme, the host fielded calls and read out texts from those who were opposed to and in favour of the protest, such that ‘significant points of view’ were presented within the programme. The host was also critical of the police and of the Speaker for their actions in relation to the protest.’

Accuracy

• ‘…the host stated that when watching the livestream he had seen one protestor who was in possession of a patu. Secondly, the host cited a report from the Wellington District Commander which stated that some of the protest[e]rs were carrying baseball bats. While we accept these statements to be statements of fact they are not materially inaccurate.’
• The complainant alleged the host ‘talked of children in poos and turd and piss’. ‘What the host said was that “You’ve got children playing in the hay, mixed with the mud and the poos …”. The issue of unsanitary conditions at the protest had been widely reported in the media.’
• ‘The host also referred to another report from the Wellington District Commander and to news articles in the NZ Herald, thus it would have been clear to listeners where the information being referred to was being sourced.’
• ‘…the statements of Mr Travers critiquing the protest and protest[e]rs and the Speaker of the House fall into the category of analysis, comment or opinion and as a result this standard does not apply to them.’

Fairness

• ‘In the context of a late night talkback show discussing a polarising and controversial protest, where callers can expect to be challenged robustly by the host, and where the broadcaster is responsible for limiting the dissemination of misinformation and disinformation regarding the Covid-19 vaccine, we consider that the host treated the callers fairly. The host gave each caller an opportunity to express their views, however the host was entitled to end a particular call when a caller expressed unsubstantiated anti-vaccine sentiment.’
• ‘While the host was critical of some callers and texters, he was also sharply critical of the Speaker of the House for his behaviour and actions.’

The relevant standards

[7]  We focused our consideration on the good taste and decency, discrimination and denigration and fairness standards as those were most relevant to the substance of the complaint. We deal with the remaining standards below at paragraphs [26] and [27].

[8]  The good taste and decency standard² states current norms of good taste and decency should be maintained, consistent with the context of the programme and the wider context of the broadcast. It protects audience members from broadcasts likely to cause widespread undue offence or distress, or undermine widely shared community standards.

[9]  The discrimination and denigration standard³ states broadcasters should not encourage 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. It protects sections of the community from verbal and other attacks, and fosters a community commitment to equality.⁴

[10]  The fairness standard⁵ protects the dignity and reputation of those featured in programmes.⁶ It requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.

Our analysis

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

[12]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified, in light of actual or potential harm caused.

[13]  The harm alleged in this instance is primarily the offence caused by the way in which Travers referred to protesters in Wellington and the way he treated some callers. We have previously noted how talkback radio provides a forum for the free and frank expression of opinions.⁷ This is an important aspect of the right to freedom of expression and is fundamental to the operation of our democratic society.

Good taste and decency

[14]  We begin by noting the complainant did not specify which words were ‘the most extreme words’, however, we did not hear any words which we would describe as ‘the most extreme’ in the broadcast. There was some low-level offensive language such as ‘idiot’, ‘dickhead’, and ‘shit-show’.

[15]  The context in which content occurs and the wider context of the broadcast are relevant to assessing whether a broadcast has breached this standard.⁸ Relevant factors in this instance include:

• Overnight Talk is a talkback programme on Newstalk ZB, with the tagline ‘have your say’.
• It has an adult target audience and was broadcast overnight from 1am–5am.
• It was clear Travers was expressing his own view, and he encouraged callers to refrain from discussing the science behind the vaccine.
• The comments were made over the course of a four-hour broadcast which aired overnight. Callers and listeners were sufficiently able to choose their level of participation in the programme.
• Talkback, and NewstalkZB in particular, is known for its robust nature.⁹

[16]  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 comments did not reach the high threshold necessary to breach the good taste and decency standard.

Fairness

[17]  The fairness standard applies to individuals or organisations participating in or referred to in a broadcast. The complainant was concerned Travers degraded callers and misrepresented their views.

[18]  A consideration of what is fair depends on the nature of the programme and its context (including the public significance of the broadcast).¹⁰ Participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution.¹¹

[19]  The nature of talkback is that callers willingly contact and participate in debate with the hosts.¹² 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.¹³

[20]  In assessing whether the programme breached the fairness standard, we considered the factors outlined above at [15], and the following:

• Callers willingly participated in a talkback show discussing the protests in Wellington, knowing Travers did not want to discuss the vaccine’s safety or efficacy, and that he was taking a critical view of the protesters.
• It is a standard format of talkback that the host takes a contrary position to that of the callers, in order to generate debate.
• Callers were allowed to express their views, and Travers read out texts he disagreed with.
• 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.

[21]  On listening to the broadcast and taking into account those factors, we found that the callers were not treated unfairly in the broadcast.

Discrimination and denigration

[22]  The discrimination and denigration standard also involves a consideration of contextual factors.¹⁴ ‘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

[23]  The complainant did not identify which section of society was discriminated against or denigrated in the programme. The standard does not apply to individuals so does not apply to callers in to the programme, and the treatment of callers has been considered under the fairness standard above.

[24]  The complainant alleged Travers said ‘there was not violence until they [Māori] turned up’. In fact, Travers read out a text along those lines, prefacing it with the statement ‘this text isn’t accurate’ and then said ‘I don’t know where you’re getting your data from’.

[25]  We do not consider this amounts to discrimination and denigration against Māori, as Travers made it clear the text was incorrect and did not endorse it. Therefore we do not uphold the complaint under this standard.

The remaining standards

[26]  The programme information standard rarely applies to radio¹⁶ and requires appropriate audience advisories to be broadcast if content is likely to be outside audience expectations. As outlined under good taste and decency, above at paragraphs [15] and [16], this programme was within audience expectations.

[27]  The balance and accuracy standards apply only to news, current affairs and factual programming. Talkback radio does not generally fall within these genres.¹⁷ In addition, given the ‘opinion focused’ content in this broadcast (and the subject of the complaint), we see no reason to depart from this usual position.

[28]  Accordingly, we do not uphold the complaint under these standards.

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

Susie Staley
Chair
18 May 2022   

Appendix

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

1  Anthony Blomfield’s complaint to NZME – 14 February 2022

2  NZME’s decision on the complaint – 14 March 2022

3  Blomfield’s referral to the Authority – 14 March 2022

4  NZME’s confirmation of no further comments – 29 March 2022

¹ See Attorney General of Samoa v TVWorks Limited, CIV-2011-485-1110 at [62]
² Standard 1 of the Radio Code of Broadcasting Practice
³ Standard 6 of the Radio Code of Broadcasting Practice
⁴ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁵ Standard 11 of the Radio Code of Broadcasting Practice
⁶ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁷ See for example Te Whata and NZME Radio Ltd, Decision No. 2020-141 at [12]
⁸ Guideline 1a
⁹ See for example Curran and NZME Radio Ltd, Decision No. 2021-165 and Grant & Findlay and NZME Radio Ltd, Decision No. 2021-117
¹⁰ Guideline 11a
¹¹ Guideline 11b
¹² See for example McCullough and NZME Radio Ltd, Decision No. 2020-008
¹³ See Benge and NZME Radio Ltd, Decision No. 2022-013, where a caller was referred to as a ‘pathetic creature’; and Singh and NZME Radio Ltd, Decision No. 2020-089, where a caller was called ‘pathetic’.
¹⁴ Guideline 6d
¹⁵ Guideline 6a
¹⁶ Guideline 2a
¹⁷ See for example: Day & Moss and NZME Radio Ltd, Decision No. 2018-090 and Haines and NZME Radio Ltd, Decision No. 2017-039