BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Mr Hayes, the Executive Officer of the Hastings A & P Society, was called a "dork" on

air at about 6.15am on 20 October 1995 by the announcers of 93FM in Hastings

because, they said, he had told them to "piss off". The broadcast arose when Mr Hayes

questioned the station manager of 93FM as to why a crew had attended the A & P show

without prior arrangement and in a vehicle used for promotional purposes.

Through his solicitor, Mr Hayes complained to Radio Otago Ltd trading as 93FM,

Hastings, that the comments which were broadcast failed to comply with the standards

relating to good taste, privacy and accuracy.

Upholding the complaint that the broadcast of the announcers' opinion about Mr Hayes

was inappropriate, at 6.15am on 30 November 93FM broadcast an explanation to that

effect and also an apology to Mr Hayes. Dissatisfied with the broadcast on 30

November as it did not place the remarks in context, Mr Hayes referred his complaint to

the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

He also sought costs.

For the reasons below, the Authority declines to uphold the complaint.

Decision

The members have not listened to a tape of the broadcast complained about but they

have read a transcript of the 30 November item. They have also read the

correspondence – summarised in the Appendix. As is its practice, the Authority

determines the complaint without a formal hearing.

At about 6.15am on 20 October on 93FM in Hastings, Mr Hayes was described on air

by the announcers as a "dork" because they said, he had told them to "piss off" when

they were handing out popcorn. Mr Hayes is the Executive Officer of the Hawkes Bay

Agricultural and Pastoral Society and at the time, 93FM were broadcasting from the

Showgrounds without prior permission.

The above facts as to the content of the broadcast are not in contention. The parties

differ as to whether Mr Hayes in fact asked 93FM to leave on the morning of the 20th.

He maintained that he did not do so. He stated that he had asked them to confine their

activities to the particular area which they were using. The broadcaster claimed that he

had told them to leave the Showgrounds on the basis that the station was not a paying

exhibitor.

On receipt of the complaint about the comments broadcast, 93FM broadcast the

following statement at 6.15am on 30 November:

On the 20th of October Kevin and I broadcast comments and personal opinions,

regarding a Mr Eddie Hayes, who has seen fit to lay an official complaint under

the Broadcasting Act ... namely that our comments were made without

observance to good taste and decency and the privacy of the individual ... namely

himself.

For this we apologise to Mr Eddie Hayes, and recognise that the broadcasting of

such commentary, based purely on our own personal opinions was not

appropriate, and had no place in being made public in such a manner. We now

consider the matter resolved, and the complaint satisfactorily dealt with.

Mr Hayes, through his solicitor, complained to the Authority that he was dissatisfied

with the broadcaster's action. He was dissatisfied with the above statement, first,

because it did not include any record of the exchange from which the offending

broadcast arose, and secondly, because it did not acknowledge that the offending

broadcast included an inaccurate summary of the circumstances it had described. Mr

Hayes requested a written apology from the announcers and the broadcaster and, in

addition, payment of his legal costs of $250.

In response 93FM refuted "vehemently" the claims about inaccuracy and said that the

statement above contained in full the broadcast on 30 November. It maintained that the

matter was resolved satisfactorily and wrote:

As to Mr Hayes' claims for payment of his costs in pursuing this matter - we

reject his claim on the grounds that matters regarding broadcast material is a matter

for the Broadcasting Standards Authority and can be done by any member of the

general public at no cost. The fact that Mr Hayes sought legal opinion is a

decision he personally made. It is a course of action not necessary and one we

will not accept financial liability for.

On this point, Mr Hayes's solicitor replied:

Mr Hayes is perfectly entitled to seek legal advice in respect of this matter and be

reimbursed for those costs.

The Authority finds the correspondence somewhat unsatisfactory as the broadcaster, in

dealing with a complaint alleging a breach of the standards relating to the observance of

good taste and decency, and privacy, does not indicate under which standards in the

Radio Code the complaint was upheld.

Despite this shortcoming, the broadcaster accepted that the comments breached the

standards and broadcast a statement which, in addition to acknowledging that the

comment should not have been broadcast, apologised to Mr Hayes. The matter has

been referred to the Authority because Mr Hayes is dissatisfied with the extent of the

action taken by 93FM.

Part of the issue dealt with in the correspondence involves a dispute as to what was said

between Mr Hayes and the staff of 93FM on the morning of 20 October. In view of the

entrenched positions, it is a dispute which the Authority is unable to resolve from the

information to hand. There is no doubt that Mr Hayes was described on air as a "dork",

and that this remark was apologised for in a broadcast on 30 November. While the

contents of the full statement broadcast on 30 November would have differed had it

been necessary to obtain the Authority's approval in advance, the Authority accepts that

it deals sufficiently with the substance of the complaint.

Because it considers that the broadcast on 30 November was adequate in view of the

on-air description of Mr Hayes broadcast on 20 October, the Authority does not

consider that it is appropriate to order the payment of costs.

For the above reasons, the Authority declines to uphold the complaint

that the action taken was insufficient.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
22 February 1996

Appendix

Mr Hayes' Complaint to Radio Otago Ltd trading as 93 FM, Hastings - 1

November 1995

Through his solicitor (K C France of Sainsbury, Logan and Williams, Napier) Eddie

Hayes complained to Radio Otago Ltd trading as 93FM Hastings. It was recorded that

Mr Hayes was the Executive Officer of the Hawkes Bay Agricultural and Pastoral

Society Inc and it was alleged that a broadcast at about 6.15am on 20 October failed to

comply with the standards relating to good taste and decency, and the privacy of the

individual.

The standards had been breached, the letter continued, by the early morning announcers

- Mark and Waggs - when they had referred to Mr Hayes as a "dork" because, they

said, he had told them to "piss off" when they were handing out popcorn. The

comment was incorrect, the solicitor stated, as Mr Hayes had spoken at the time only to

Mr Lay of 93FM and he had asked what the station was doing at that show. He

concluded:

At no time did Mr Hayes request them to leave and merely asked that their

activities be restricted to the particular area that was already being used by them.

93FM, Hastings' Response to the Formal Complaint - undated

(November 1995)

The General Manager of 93FM, Richard Lay, sent Mr Hayes' solicitor a copy of a

memo written to the breakfast team of announcers (Messrs McCarron and Wagg) with a

script of a formal apology for broadcast at 6.15am on 30 November.

He expressed his hope that this would resolve the matter.

The memo to Mr McCarron noted that the opinions expressed on air were personal and

had no place as part of the broadcast. The proposed statement read:

On the 20th of October Kevin and I broadcast comments and personal opinions,

regarding a Mr Eddie Hayes, who has seen fit to lay an official complaint under

the Broadcasting Act ... namely that our comments were made without

observance to good taste and decency and the privacy of an individual ... namely

himself.

For this we apologise to Mr Eddie Hayes, and recognise that the broadcasting of

such commentary, based purely on our own personal opinions was not

appropriate, and had no place in being made public in such a manner. We now

consider the matter resolved, and the complaint satisfactorily dealt with.

Mr Hayes' Response to 93FM's Decision - 1 December 1995

Mr Hayes' solicitor advised the broadcaster that he was not satisfied with the action

taken for the following reasons:

1) The proposed statement did not place the apology in context.

2) The proposed statement did not acknowledge that the comments were untrue or

reflect the circumstances which gave rise to them.

3) Mr Hayes expected a written apology from the broadcaster and the announcers.

4) Mr Hayes sought payment of his legal costs amounting to $250.00.

He advised that the matter would be referred to the Broadcasting Standards Authority

should a reply be not forthcoming.

Mr Hayes' Complaint to the Broadcasting Standards Authority - 6

December 1995

As he was dissatisfied with the broadcaster's action and had not received a response to

his 1 December letter, Mr Hayes' solicitor referred the matter to the Broadcasting

Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Explaining that the matter arose at the Hawkes Bay Show held on 18 - 20 October

1995, the solicitor stated that staff members from 93FM attended the show, without

prior arrangement, in a vehicle used for promotional purposes. He continued:

Mr Hayes spoke to the station manager Mr Lay and requested for safety reasons,

that their activities be restricted to a particular area of the showgrounds (which

was in fact the area being used by the staff members of 93FM). At no time did

Mr Hayes ask any of the staff members to leave.

93FM's Response to the Authority - 19 December 1995

On 93FM's behalf, the station manager (Mr Richard Lay) advised the Authority:

1. The apology broadcast on 30th November was more than appropriate given the

nature of the original complaint from Mr Hayes.

2. The apology did not include the "preceding and subsequent" comments on the

basis that any further referrals to the particular conversation and comments would

merely inflame an already volatile situation.

3. The issue of Mr Hayes' dissatisfaction "with the content of the statement

broadcast because it does not acknowledge that the comments broadcasted (sic)

were not true" is simply due to the fact that we refute his claims vehemently.

He continued:

On the basis that Mr Hayes' complaint is based on the use of the term "dork"

when referring to him ... this has already been addressed and resolved with a

formal apology having been broadcast.

Mr Lay agreed that Mr Hayes had discussed safety and the broadcaster's intention with

him. However, Mr Lay maintained, Mr Hayes had asked them to leave the

showgrounds as he had said that the station was not a paying exhibitor. Mr Lay was

adamant that 93FM had been asked to leave.

As the broadcast comment was appropriate in the circumstances, it had been dealt with

and, in the broadcaster's opinion, the complaint had been resolved. The broadcaster

also refused to accept liability for the legal costs as it was Mr Hayes' decision to seek

legal advice which was not necessary in view of the requirements in the Broadcasting

Act.

Mr Hayes' Final Comment - 10 January 1995

Maintaining the complaint as outlined in the previous correspondence, Mr Hayes

through his solicitor insisted that the members of the 93FM crew had not been asked to

leave the showgrounds. The comments broadcast preceding and following the apology

were again sought.

Further, as Mr Hayes was perfectly entitled to seek legal advice, he should be

reimbursed for those costs.

Further Correspondence

On 15 January 1996, by telephone, the broadcaster advised the Authority that the

transcript of the broadcast apology was the item in full. It believed that it was

appropriate in view of the comment which had been broadcast and which it

acknowledged to be offensive.