BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

A complaint that Malcolm Brenner was treated unfairly when interviewed for a segment on Dom, Meg and Randell about his previous sexual relationship with a dolphin has been upheld. MediaWorks interviewed Mr Brenner about his relationship with a dolphin but ultimately decided not to broadcast the interview in full. They did however broadcast a small segment of the interview in which one of the hosts called Mr Brenner ‘sick’ and stormed out of the interview. The Authority found that Mr Brenner was treated unfairly and was not adequately informed about the nature of his participation in the broadcast. In particular, he was misled into thinking a four minute version of the interview would be broadcast (rather than only the brief segment including the host’s reaction to him), when the final broadcast had already occurred. The Authority also found that, while listeners may have already formed a negative impression about Mr Brenner, the broadcast of the interview segment had the potential to adversely affect him and he should have been given the opportunity to comment on air. The Authority did not uphold the complaint under the discrimination and denigration, balance and accuracy standards, finding they were not applicable.

Upheld: Fairness
Not Upheld: Discrimination and Denigration, Balance, Accuracy

The broadcast & background

[1]  On 25 March 2019, during a segment on Dom, Meg and Randell, the hosts discussed the viral ‘Florida man’ birthday challenge, in which people conduct a Google search with their date of birth and the words ‘Florida man’, and receive news stories about the behaviour of a ‘Florida man’ on their birthday.

[2]  Host Dominic Harvey (Dom) had conducted such a search using his birth date. The first search result was an article about Malcolm Brenner with the headline ‘Florida Man who had sex with dolphin says it seduced him.’

[3]  The following week on 1 April the hosts discussed how they had found Mr Brenner and decided to interview him.  They also broadcast more information about Mr Brenner including that:

• he had written a book  
• he had been fired from the aquarium where this occurred (which is false)
• he had been interviewed by MediaWorks’ journalist (at the time) David Farrier
• the dolphin's name was Dolly
• he had made a documentary about his relationship with Dolly
• he didn’t go through the court system and wasn’t sent to jail
• he claimed Dolly was in love with him
• he claimed Dolly initiated the behaviour and seduced him over time
• he claimed Dolly was so distraught when they were separated that she took her own life.

[4]  Host Megan Annear (Meg) made clear her opposition to hearing about bestiality and outlined her counter-view that Dolly was ‘traumatised because a man had seduced her and she’s a dolphin.’ The hosts then sought and received feedback from listeners on whether or not to broadcast the interview.

[5]  On the same day Mr Brenner received a note from Dom apologising for Meg’s reaction in the interview and informing him the interview was likely to be broadcast ‘in the next couple of days’.

[6]  On 3 April the hosts described the ‘Florida Man’ challenge again, broadcast extracts of the previous show and emphasised to listeners not to ‘flip out’ because they had heard the audience feedback and weren’t going to broadcast the full interview. They talked about Meg’s opposition to this storyline and played the following extract from the interview:

Mr Brenner: Dolphins’ skin is peeling all the time so they need to have it rubbed. She would roll over on her back and then swim forward until I was rubbing her [bleeped term].

 Meg: This is sick. This is sick. I think you’re sick in the head and this is disgusting. This is a non-consensual situation. A dolphin cannot consensually choose to have sex with a human and you absolutely took advantage of that and I don’t want to be involved with this.

[7]  Meg explained she was flustered and furious and the hosts explained that everyone who got into contact with the show, apart from one listener, had agreed that the topic was not appropriate for broadcast. The full interview was not broadcast on air. However, one listener was given the opportunity to listen to a shortened version of the interview off-air and was then asked for his view of the interview. He indicated that he regretted having heard it.

[8]  On 4 April Dom responded to an email from Mr Brenner, who had requested an update on the status of the interview. Dom sent Mr Brenner a four minute version of the interview (the same segment that had been played to the listener), with no mention that MediaWorks Radio Limited (MediaWorks) had decided not to broadcast it.

[9]  The segment complained about was broadcast on 3 April 2019 on The Edge.

[10]  As part of our consideration of this complaint, we have listened to recordings of the relevant broadcasts and read the correspondence listed in the Appendix.

The complaint

[11]  Malcolm Brenner submitted the broadcast of 3 April 2019 breached the discrimination and denigration, balance, accuracy and fairness standards of the Radio Code of Broadcasting Practice for the following reasons:

Discrimination and denigration

• Mr Brenner was discriminated against and denigrated because of his sexual relationship with the dolphin. Meg called Mr Brenner ‘sick’ and ‘disgusting’ when Mr Brenner was telling his story about his encounter with Dolly.
• The broadcaster’s discriminatory behaviour was reflected in the way Mr Brenner was treated off air – not being informed about what was being broadcast and Dom sending him a clip implying it would be broadcast when it was not.
• MediaWorks treated Mr Brenner as a ‘zoophile’ with no rights.

Balance

• No efforts were made to present Mr Brenner’s viewpoint regarding his encounter with the dolphin, therefore the broadcast was unbalanced.

Accuracy

• MediaWorks stated the story wasn’t ‘factual’. Therefore it cannot be accurate.
• Dom stated on air that Mr Brenner was ‘fired’ from his job, this is inaccurate. ‘I was never fired because I never worked for them. I was a freelance student photographer given free access to the property to produce photos for a book about dolphins.’
• Meg inaccurately stated that a dolphin cannot consent to sex with a human.
• Meg inaccurately stated that Mr Brenner took advantage of Dolly, when in fact Dolly ‘took advantage’ of Mr Brenner’s visits to the park to make advances.

Fairness

• The Edge ‘sabotaged’ Mr Brenner by only playing the part of the interview with Meg’s reaction, which did not reflect the interview as a whole.
• MediaWorks did not give Mr Brenner the opportunity to present his side of the story to listeners. His ‘experiences and words were interpreted by a hostile crew, ignored and disparaged’ and he was called ‘sick’ and ‘disgusting’ by Meg.
• MediaWorks lied to Mr Brenner, failed to keep him informed and gave him misleading information about the nature and extent of his participation in the broadcast.
• Mr Brenner gave the interview under false pretences.
• MediaWorks accepted that there were ‘serious issues’ with how Mr Brenner was treated, how the clip was edited, how the information provided by Dom was misleading and incomplete, and admitted a better decision would have been to not use the interview at all.

The broadcaster’s response

[12]  MediaWorks submitted that the broadcast did not breach any of the standards raised by the complainant for the following reasons:

Discrimination and Denigration

• People who ‘have sex with dolphins, or zoophiles (i.e. people with a persistent sexual interest in animals) do not comprise a “section of the community” within the scope of this Standard.’
• ‘Although the Human Rights Act does prohibit discrimination on the grounds of “sexual orientation”, it defines this as “heterosexual, homosexual, lesbian, or bisexual orientation” only (see section 21(1)(m)), and not an orientation towards animals.’

Balance

• Dom, Meg and Randell is not a news, current affairs or factual programme. The show is promoted as a place for ‘the latest entertainment news, celebrity gossip, scandal, competitions and all the funniest gags to spark up your morning’. Therefore the standard does not apply.

Accuracy

• This standard applies only to ‘news, current affairs and factual programming, which this was not’.

Fairness

• In its initial response MediaWorks admitted there were ‘serious issues’ with how the hosts dealt with Mr Brenner’s contribution. MediaWorks was concerned about the way the interview was edited and broadcast on 3 April 2019, noted it would have been a better decision not to broadcast any of the interview and found the information which Dom provided to Mr Brenner after the interview, was ‘misleading and incomplete.’
• MediaWorks raised these concerns with the show's producers and presenters and have reminded them of their obligations under the fairness standard. MediaWorks has also reviewed its processes to take into account ‘the slightly unusual situation here, where a storyline was modified in response to clear listener feedback.’
• However, overall MediaWorks was satisfied that the storyline and the 3 April broadcast were not ‘unfair’ to Mr Brenner and fairly reflected his ‘position in relation to [his] interactions with Dolly’ and found that in light of the audience’s clear expectations, it was not appropriate to play the entire interview. MediaWorks was also satisfied Mr Brenner’s position was adequately presented across the series of broadcasts.
• MediaWorks concluded that any negative impression was a result of pre-existing perceptions of bestiality and those who engage in it. There is ‘already widespread distaste for the behaviour’ Mr Brenner engaged in.
• Prior to the broadcast Mr Brenner was adequately informed of the intended nature of his participation. ‘At that time the hosts did plan to broadcast [his] interview in full or use it for a podcast. It was only after they received overwhelming listener feedback and appreciated that there was no audience appetite for this story, that the hosts and production team reconsidered their approach.’ 
• MediaWorks noted that Mr Brenner is experienced in dealing with the media and would have expected and been prepared for opposition or condemnation of his behaviour.

The relevant standards

[13]  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.²

[14]  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.

[15]  The balance standard (Standard 8) 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.

[16]  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.

Our findings

[17]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information, and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[18]  In this case, the harm alleged to have been caused arises from the portrayal of Mr Brenner in the broadcast and his treatment by the broadcaster regarding his participation in the broadcast.

[19]  We note the challenging subject matter of the broadcast, the likely public perception of Mr Brenner’s actions, and the consequential implications for the level of harm that can be caused as a result of this broadcast. However, for the reasons set out below, we consider Mr Brenner was treated unfairly by MediaWorks. Upon balancing freedom of expression against the potential harm to Mr Brenner, we consider the threshold for limiting the broadcaster’s freedom of expression has been met on this occasion.

Fairness

[20]  Mr Brenner has submitted that only broadcasting Meg’s reaction to him, without broadcasting any comment from him, and misleading him about what was broadcast amounted to unfair treatment that resulted in harm.

[21]  The purpose of the fairness standard is to protect the dignity and reputation of those featured in programmes.³ While the subject matter of the broadcast and the nature of Mr Brenner’s past may be widely considered challenging and controversial, the issue for us to consider is whether, having decided to interview Mr Brenner and to broadcast some of that interview, MediaWorks treated him fairly.

[22]  We note the threshold for finding a breach of the fairness standard in relation to public figures and people who are familiar with dealing with the media is higher than for a layperson or someone unfamiliar with the media.⁴ While Mr Brenner may not be widely known to the public, as per the parties’ submissions, he has experience with the media.

[23]  After extensive discussion we found the following fairness principles of the most relevance in our consideration under this standard:

• Participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution, except where justified in the public interest, or where their participation is minor in the context of the programme.⁵
• If a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before the broadcast. What is ‘fair and reasonable’ will depend on the circumstances.⁶
• Edited excerpts should fairly reflect the tenor of the overall events or views expressed.⁷
• Individuals, particularly children and young people, featured in a programme should not be exploited, humiliated or unfairly identified.⁸

[24]  These principles are considered further below.

Participants to be informed of nature of programme and their contribution

[25]  With respect to whether Mr Brenner was informed about the nature of his participation in the broadcast, we recognise that it was reasonable for Mr Brenner to expect a significant portion of the interview would be broadcast, given his correspondence with Dom. While this expectation did not create an obligation for MediaWorks to broadcast the interview, having created an expectation that it would be broadcast, it was appropriate to inform Mr Brenner of the nature of what would be broadcast, particularly considering Meg’s adverse comments regarding Mr Brenner. However, Mr Brenner was not informed that MediaWorks had decided to only broadcast the segment including Meg’s reaction to him. Further, when Mr Brenner sought an update on the status of the interview from Dom, Mr Brenner was misled into thinking a four minute version of the interview would be broadcast, even though Dom had stated on air that the interview would not be broadcast.  This would have given the impression that at least some of Mr Brenner’s own comments would be aired.  However, they were not.

[26]  While the decision not to air the interview may have been justified, the failure to inform Mr Brenner of the nature of his involvement was not justified in the public interest. In addition, we consider his participation was more than ‘minor in the context of the programme’ considering his life was discussed in the broadcast and also as he was the focus of Meg’s strong reaction. While the focus of the broadcast had shifted from Mr Brenner’s perspective to Meg’s reaction, Mr Brenner was the recipient of insults from Meg and considering the strong, personal nature of her reaction, we find Mr Brenner’s participation was more than minor in the context of what was broadcast.

Fair and reasonable opportunity to comment where adversely affected

[27]  The first question under guideline 11d is whether Mr Brenner was adversely affected by the broadcast. MediaWorks has submitted that any negative impression created of Mr Brenner would have been due to listeners’ pre-existing perceptions of bestiality and those who engage in it (rather than this broadcast). We accept that many will have pre-existing views of bestiality which will influence their opinion of Mr Brenner.  However, we consider that the edited extract and the comments made about him had the potential to negatively impact him.

[28]  In addition, we are charged with considering whether there was any adverse effect on Mr Brenner himself. A reduction in others’ potential estimations of his character is only one potential adverse effect.  Another is the impact (on Mr Brenner himself) of being described as ‘sick’ and ‘disgusting’ on air (with no opportunity to present any alternative perspective).  In the circumstances, we are satisfied that Mr Brenner was adversely affected.

[29]  The next question is whether he was given a fair and reasonable opportunity to comment for the programme before the broadcast. We consider he was not. MediaWorks chose to interview Mr Brenner and he agreed on the assumption his views would be expressed on air. MediaWorks was not inherently obligated to broadcast Mr Brenner’s views. However once they decided to broadcast negative, personal insults about Mr Brenner, Mr Brenner should have been given the opportunity to respond (particularly considering the adverse effect being publicly insulted can have on people).

Edited excerpts should fairly reflect the tenor of the overall events/views

[30]  Only a small portion of the interview, featuring Meg’s walk out, was played on air.  This did not reflect the overall tenor of the views expressed by Mr Brenner during the interview.

Individuals featured in a programme should not be exploited or humiliated

[31]  We have given careful consideration as to whether MediaWorks’ treatment of Mr Brenner (as a person featured in their broadcast) served to exploit or humiliate him. We are conscious that MediaWorks expressly sought out Mr Brenner (whose story is now somewhat historic given relevant events happened in 1970) and he shared his story with the hosts on the assumption his perspective would be communicated to listeners on air.

[32]  MediaWorks clearly appreciated the potential ‘shock value’ of Mr Brenner’s story and how their audience was likely to perceive him (noting their ultimate decision not to play more of the interview based on audience feedback). 

[33]  In these circumstances, broadcasting an interview excerpt which portrayed him only as an object of ‘disgust’ suggests an element of exploitation. We also consider it would have humiliated Mr Brenner to have been called ‘sick’ and ‘disgusting’ on air (with no opportunity to present his own perspectives)⁹.

Finding on fairness standard

[34]  In summary, there were clear elements of substantive and procedural unfairness in the way Mr Brenner was treated by MediaWorks. Having chosen to interview Mr Brenner and having chosen to play that specific extract from that interview, MediaWorks were required to comply with the fairness standard and Mr Brenner was entitled to be treated fairly in accordance with the standard.

[35]  MediaWorks’ decisions not to inform Mr Brenner that they decided not to air the full interview, to play the extract featuring Meg’s reaction without playing any of Mr Brenner’s response, and to send (via Dom) Mr Brenner an edited version of the interview implying that it would be broadcast, amounted to misleading and ultimately unfair treatment of Mr Brenner.

[36]  Accordingly, we uphold the complaint under this standard.

Discrimination and Denigration

[37]  The discrimination and denigration standard states that ‘broadcasters should not encourage discrimination against, or denigration of, any section of the community… as a consequence of legitimate expression of religion, culture or political belief.’ The standard applies only to recognised ‘sections of the community’ which is consistent with the grounds for discrimination listed in section 21 of the Human Rights Act 1993.¹⁰

[38]  While sexual orientation is listed in the codebook under the grounds of discrimination under the standard, we do not consider the standard intended to cover sexual acts now considered illegal in New Zealand,¹¹ or any sexual orientation that involves animals (zoophilia). This approach is consistent with the Human Rights Act 1993 which, while prohibiting discrimination on the grounds of sexual orientation, defines it as ‘heterosexual, homosexual, lesbian, or bisexual orientation’ only.¹²

[39]  For the above reasons, we find the discrimination and denigration standard does not apply and we do not uphold the complaint under this standard. 

Remaining standards raised

[40]  Both the balance and accuracy standards only apply to ‘news, current affairs and factual programming.’

[41]  The Authority has consistently found that programmes, similar to Dom, Meg & Randell on The Edge, are not news, current affairs or factual programmes to which the accuracy or balance standards apply.¹³

[42]  As the balance and accuracy standards do not apply, we do not uphold the complaint under these standards.

The Authority upholds the complaint that the broadcast breached Standard 11 of the Radio Code of Broadcasting Practice.

[43]  Having upheld aspects of this complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on orders

[44]  Mr Brenner requested a public apology and that MediaWorks be fined and required to broadcast his full interview.

[45]  MediaWorks accepted the Authority’s finding that this broadcast breached the fairness standard and acknowledged that Mr Brenner should have been given an opportunity to comment on air. It offered to broadcast an apology and the interview in full. It also submitted that orders under sections 16 and 13 of the Broadcasting Act 1989 were not warranted as it was not necessary for the complainant to engage legal counsel nor was the complaint considered under the privacy standard.

Authority’s decision on orders 

[46]  When the Authority upholds a complaint, we may make orders (such as directing the broadcaster to broadcast and/or publish a statement, and/or pay costs to the Crown).  Alternatively, we may determine that the publication of our decision is sufficient to sanction the conduct of the broadcaster and to provide guidance to the broadcaster which is the subject of the complaint, and other broadcasters more generally.

[47]  In determining the appropriate response, the factors we take into consideration include:¹⁴

• the seriousness of the breach, and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or to the audience generally
• the objectives of the upheld standard(s)
• the attitude and actions of the broadcaster in relation to the complaint (eg whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• past decisions and/or orders in similar cases.

[48]  In this case, our primary concern with respect to MediaWorks’ breach of the fairness standard was Dom’s conduct towards Mr Brenner and specifically his having misled Mr Brenner regarding how much of the interview would be aired. In its response MediaWorks has acknowledged that there were serious issues with this conduct and that steps have been taken by the producer in response. MediaWorks advise that its processes have been reviewed with respect to how it responds to audience feedback on challenging topics. Taking into account the above factors and the action taken by MediaWorks, the Authority considers that the publication of this decision is sufficient to censure MediaWorks’ conduct and clarify our expectations of broadcasters under the fairness standard.

[49]  Accordingly we do not make any orders.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

6 November 2019

Appendix

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

1                 Correspondence between Mr Brenner and Dominic Harvey (Dom) – 5 April 2019

2                 Correspondence between Mr Brenner and MediaWorks’ legal team – 13 April 2019

3                 Mr Brenner’s original complaint – 11 April 2019

4                 MediaWorks’ original response – 15 May 2019

5                 Mr Brenner’s referral to the Authority – 22 May 2019

6                 MediaWorks’ confirmation of no further comment – 6 June 2019

7                 Mr Brenner’s submissions on orders – 27 August 2019

8                 MediaWorks’ submissions on orders – 12 September 2019

¹ Wendy Palmer resigned as a board member with effect from 7 November 2019. 
² Guideline 11a
³ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁴ See, for example: Holland and MediaWorks TV Ltd, Decision No. 2017-048
⁵ Guideline 11b
6 Guideline 11d
7 Guideline 11e
8 Guideline 11h
9 Guideline 11f
¹⁰ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15
¹¹ Crimes Act 1961, s 143(1) ‘Every one is liable to imprisonment for a term not exceeding 7 years who commits bestiality.’
¹² Human Rights Act 1993, s 21(1)(m)
¹³ See, for example: BC and MediaWorks Radio Ltd, Decision No. 2014-128, Baird and RadioWorks Ltd, Decision No. 2013-041, Simmons and Walker-Simmons and RadioWorks Ltd, Decision No. 2012-004
¹⁴ Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58