BP Oil New Zealand Limited and CanWest RadioWorks Ltd - 2005-131
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- BP Oil New Zealand Limited
BroadcasterCanWest RadioWorks Ltd
Complaint under section 8(1)(a) of the Broadcasting Act 1989
Devlin Live – discussion of a press release from BP Oil explaining prices – allegedly unfair and in breach of good taste and decency
Principle 1 (good taste and decency) – context – not upheld
Principle 5 (fairness) – BP Communications Manager not personally attacked – not unfair – not unfair to criticise BP’s policy on fuel prices – not upheld
This headnote does not form part of the decision.
 On Wednesday 7 September 2005, at around 8.45am, the host of the Radio Live breakfast show Devlin Live, Martin Devlin, made a number of critical comments about a press release from BP Oil concerning petrol prices. The host referred to the press release as “PR BS” (public relations bullshit), and offered his view that BP Oil were trying to “screw” and “root” consumers.
 The host concluded by saying that the author of the press release, whom he had earlier named, must have been “sniffing the product” when she wrote it. The author was BP Oil’s Communications Manager.
 BP Oil, through its solicitors, complained to CanWest RadioWorks, the broadcaster, that the item breached Principles 1 and 5 of the Radio Code of Broadcasting Practice. It stated that while it accepted that the company was ordinarily open to criticism, it was particularly concerned with the use of the name of the BP Communications Manager.
 It noted examples of comments which it considered were ill-informed, highly offensive and personally abusive, and which it considered breached the requirement of good taste and decency:
“what they are trying to say is we want you to swallow this PR BS word for word”
“we want you to swallow this PR BS so we can screw you”
“we’re trying to root you, is what they’re saying”
“and we’re trying to tell you how we root you in a way that you accept it”
“Okay, right, I am undoing my belt as I speak, so that you can get quicker access to where you really want to put the fuel pump”
“Whoever wrote it must have been sniffing it, sniffing the product before you actually put the pen to it”
 The complainant considered that the comments amounted to a derogatory attack on BP Oil and its Communications Manager. It rejected any allegation of substance abuse by its Communications Manager.
 CanWest assessed the complaint under Principles 1 and 5 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 deal justly and fairly with any person taking part or referred to.
Broadcaster's Response to the Complainant
 In its response to the complaint, CanWest noted that The host had characterised the pricing decisions made by BP covered in the press release as exploitative. It described the host’s comments as a “critical analysis” of the media release. It described Devlin’s comments as “colloquial and colourful”.
 In considering Principle 1, the broadcaster noted that relevant factors included the fact that the comments occurred during a breakfast programme in the challenging and provocative “talk radio” environment, and the adult target audience.
 While CanWest acknowledged that the comments were “colourful”, it considered that they did not stray from the “mildly suggestive” into what might be classed as obscene or offensive. It contended that no coarse language was used, and no explicit obscene suggestions were made. It considered that no significant sector of the listeners to Radio Live were likely to have found the comments inconsistent with standards relating to good taste and decency.
 Turning to Principle 5, CanWest considered whether the comments were unfair to BP Oil’s Communications Manager. It noted that she had been mentioned once in the item, at the beginning of the piece, and her name was not mentioned again.
 CanWest considered that it was clear from the broadcast, that The host’s criticisms had been directed at the policies and rationalisations presented by BP Oil to justify its pricing decisions. It argued that, throughout the item, the host alluded to the company and did not level any specific criticism towards the Communications Manager personally.
 In particular, CanWest noted that the host did not identify the Communications Manager in respect of his remark about “sniffing the product” – he simply said “whoever wrote this”. CanWest did not agree that there was any suggestion, either implicit or explicit, that because a certain employee of BP sent the press release she either wrote it, or was a substance abuser.
 The broadcaster did not accept that the adult target audience of Radio Live would have believed that the Communications Manager was responsible for the policies of her employer, nor that she was a substance abuser “or was likely to employ force to exploit the people who use the BP product”.
 CanWest concluded that it was not unfair to identify the BP Oil Communications Manager by name as the person who sent the press release. It did not consider that the criticism of BP Oil in this context breached Principle 5. Accordingly, the complaint was not upheld.
Referral to the Authority
 Dissatisfied with the response from the broadcaster, BP Oil referred its complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.
 BP Oil reiterated its submission that the broadcast breached Principles 1 and 5 of the Code. It acknowledged that talkback radio was a robust and opinionated environment, but considered these remarks were derogatory and in breach of the Radio Code of Broadcasting Practice. It argued that the contextual factors did not save the broadcast from breaching the Code, and that the subject matter did not warrant the comments.
 In respect of Principle 5, the complainant asserted that the host did not deal justly with the Communications Manager. It considered that the comments were not based on fact, and were unfair. It noted that the Communications Manager was not a publicly prominent person and had not sought any media exposure.
 The members of the Authority have listened to a copy of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
Good taste and decency
 Radio Live primarily broadcasts talk radio and news, targeted at an adult audience. The Authority accepts that the talk radio environment is robust, and is often lively and controversial. Furthermore, it notes that the host in question is well-known for expressing strong views on current issues, and using colloquial language.
 In this context, in light of the fact that the language used was coarse but not explicit, the Authority considers that the good taste and decency standard was not threatened.
 It is unclear from BP Oil’s correspondence whether its allegation of unfairness is limited solely to the comments allegedly made about the BP Communications Manager, or whether it considered the broadcast was also unfair to BP Oil generally. For the avoidance of doubt the Authority addresses both issues.
 The Authority does not agree with BP Oil that the broadcast amounted to a derogatory attack on the Communications Manager. While she was mentioned by name – albeit only once, and briefly – it was clear that the host’s comments were not directed at her personally, but instead at the pricing policy of BP Oil, and its attempt to justify its position. In any event, having put her name to a press release, acting as the public voice of BP Oil, there was nothing unfair in the host criticising the justifications the Communications Manager had offered on behalf of BP Oil.
 Nor does the Authority agree that the comment about “sniffing the product” amounted to an allegation that the Communications Manager was a substance abuser. In the view of the Authority, the comment was transparently a tongue-in-cheek way for the host to offer his criticism of BP Oil’s justification of its pricing policy. No reasonable listener would have thought that the comment was intended to be taken literally.
 In relation to BP Oil generally, the Authority observes that the company is a large corporate entity well-able to withstand public criticism of its operations. Having chosen to defend its fuel prices in public by issuing a press release, some criticism was predictable. In the view of the Authority, there was nothing unfair in a talkback host voicing a critical opinion.
For the above reasons the Authority declines to uphold the complaint
Signed for and on behalf of the Authority
22 February 2006
The following correspondence was received and considered by the Authority when it determined this complaint:
- BP Oil’s formal complaint to CanWest – 27 September 2005
- CanWest’s response to the formal complaint – 5 October 2005
- BP Oil’s referral to the Authority – 2 November 2005
- CanWest’s response to the referral – 21 November 2005