BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Radio Pacific talkback – (1) racist remarks – offensive language; (2) denigrated Maori

Findings
No tape provided – unable to determine complaint on merits

Principle 8 – relevant

Order
Costs of $250 to the complainant

This headnote does not form part of the decision.

Summary

Talkback host John Banks was reported to have made critical references to the contribution by Maori to the millennium celebrations in New Zealand in a programme broadcast on Radio Pacific on 17 January 2000 between 8.15–8.50am.

Hohepa Campbell complained to The RadioWorks Ltd, the broadcaster of Radio Pacific, that the host’s comments were offensive and anti-Maori and incited racial disharmony. As he did not receive a response from The RadioWorks within the statutory time frame, he referred the matter to the Authority under s.8(1)(b) of the Broadcasting Act 1989.

The broadcaster responded first that it had not interpreted the complaint as a formal one requiring response. It advised that it had no tape of the programme. It reported that it did not consider the remarks constituted a breach of the good taste and decency standard, or the standard relating to the maintenance of law and order. In relation to the principle prohibiting encouragement of discrimination, the broadcaster pointed to the exemption which provides for the broadcast of material which is a genuine expression of serious comment or opinion. It declined to uphold the complaint.

For the reasons given below, the Authority declines to determine the complaint about the broadcast. It orders The RadioWorks to pay costs to Mr Campbell of $250.00.

Decision

The members of the Authority have read the correspondence which is listed in the Appendix. No tape of the programme was provided. On this occasion, the Authority determines the complaint without a formal hearing.

During his talkback programme broadcast on Radio Pacific on 17 January 2000 between 8.15 – 8.50am, host John Banks reportedly criticised the contribution of Maori to the millennium celebrations in New Zealand. According to the complainant, he portrayed Maori as "natives who have nothing better to do than wave spears on television" and made comments to the effect that Maori should stop being Maori. Because of Maori, he reportedly said, New Zealand had become a third world country.

Hohepa Campbell complained to Radio Pacific that such comments were offensive. As a Maori, he said, he took offence to being "made inferior" by people like the talkback host. In addition, he continued, the host’s attitude would have contributed to engendering racial unrest and incited racial disharmony. In Mr Campbell’s view, the programme breached Principles 1, 2 and 7a of the Radio Code of Broadcasting Practice.

As The RadioWorks, the broadcaster of Radio Pacific, did not respond to the complaint within the statutory time frame, Mr Campbell referred the matter to the Authority under s.8(1)(b) of the Broadcasting Act 1989.

The Authority sought comments from The RadioWorks. It advised the Authority that as Mr Campbell’s letter of complaint to the station had been a copy of a letter addressed to the Authority, it had not interpreted it as being a formal complaint requiring a response. It noted that a copy of the tape had consequently not been retained.

The Authority advised the broadcaster that it expected it to respond to the complaint. Subsequently, The RadioWorks provided a response. It dealt with the complaint under the nominated principles of the Radio Code, which provide:

Principle 1

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.

Guidelines

1a  Broadcasters will take into consideration current norms of decency and good taste in language and behaviour bearing in mind the context in which any language or behaviour occurs and the wider context of the broadcast eg time of day, target audience.

Principle 2

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the maintenance of law and order.

Principle 7

In programmes and their presentation, broadcasters are required to be socially responsible.

Guidelines

7a  Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:

    -    factual, or

    -    a genuine expression of serious comment, analysis or opinion, or

    -    is by way of legitimate humour or satire.

The RadioWorks maintained that the remarks attributed to the host did not contravene either Principle 1 or 2. With respect to the complaint under Principle 7, Guideline 7a, The RadioWorks emphasised that the views expressed had been "a genuine expression of serious comment or opinion" and that accordingly, there was no breach of the Code of Practice.

Mr Campbell, in his final comment, noted first that his letter to Radio Pacific had been clearly marked "Formal Complaint". He suggested that The RadioWorks had disposed of the tape of the broadcast in order to avoid proceedings against it. As a final point, Mr Campbell stated that he did not believe that the broadcast had been a "genuine expression of serious comment or opinion".

The Authority’s Findings

Absence of tape

The Authority records its concern that no tape of this broadcast was available. It notes that the broadcaster has advised that it had not interpreted Mr Campbell’s initial complaint as a formal one, and for that reason had not retained a copy of the tape. The Authority is not satisfied with this explanation. Mr Campbell’s letter was clearly marked as a formal complaint. It was addressed to the Broadcasting Standards Authority but a copy was sent to the broadcaster. A handwritten letter accompanying the complaint was addressed to the Chief Executive of The RadioWorks. It, too, identified the correspondence as a formal complaint.

The requirement to retain a tape of any broadcast complained about is set out in Principle 8 of the Radio Code of Broadcasting Practice, which reads:

Principle 8

For a period of 35 days after broadcast, broadcasters are required to be able to provide a copy of the tapes of all open line and talk back programmes, and all outside broadcast news and current affairs coverage. For the same period, broadcasters are also required to retain, or be able to obtain, a tape or script of all news or current affairs items.

Guidelines

8a  In the event of a formal complaint, broadcasters will retain all relevant programme information, records and recordings until the complaint has been finally dealt with.

8b  Tapes and transcripts required pursuant to Principle 8 and all relevant information retained in the event of a formal complaint shall be made available to the Broadcasting Standards Authority on the Authority’s written request.

The Authority observes that consistent with the principle of self-regulation it invited broadcasters to consider and submit content when the Code was reviewed in 1999. The Radio Broadcasters Association at that time submitted a draft of Principle 8 which was substantially in the same form as provided for in the Code. That wording and the new standard came into force with the gazetting of the Code on 1 July 1999. If there had been doubt previously about the responsibility of broadcasters to retain tapes of programmes or to ensure that these were available if required, then, in the Authority’s view, the position was made clear by the provisions of the new Code.

As a further point, the Authority notes that The RadioWorks was warned, in Decision No: 2000-007, dated 10 February 2000, that its continued failure to provide a tape of programmes complained about would likely give rise to the imposition of a penalty.

The Authority draws to The RadioWorks’ attention the Amendment to the Broadcasting Act 1989 which comes into effect on 1 July 2000 which amends section 30 of the principal Act. The amended provision reads:

s.30(1) The Authority may from time to time make and promulgate rules in relation to broadcasters to ensure that recordings of programmes broadcast by them are retained by the broadcaster or some other person, and are able to be obtained by the broadcaster when required to do so by the Authority.

It has been the Authority’s preference not to resort to further rules at this stage. But the continued non-observance of Principle 8 by The RadioWorks may require the Authority to reconsider the position.

The Broadcaster’s Processing of the Complaint

The Authority next turns to the manner in which the complaint was dealt with by the broadcaster. Again it records its dissatisfaction with The RadioWorks’ apparent failure to have in place "a proper procedure" to deal with complaints as required under s.5 of the Broadcasting Act. In the Authority’s view, the broadcaster’s handling of the complaint fell short of its statutory obligations. In particular, the Authority notes the broadcaster’s failure first to recognise that this was clearly a formal complaint and secondly, its failure to respond appropriately to the complainant.

The Complaint

Turning finally to the substance of the complaint, the Authority has held on other occasions that in the absence of a tape it is inclined to adopt the version of events which is most favourable to the complainant. But in this case it finds it impossible to assess the complaint without knowing the content of the exchange and the context in which it arose. Even on the complainant’s view of the matter, there is room for doubt as to whether the broadcast infringed standards and, in those circumstances, the Authority is not prepared to find against the broadcaster. The better course is for it to decline to determine this part of the complaint.

Conclusion

Notwithstanding the broadcaster’s explanation, the Authority finds that its conduct fell short of its statutory obligations. The initial complaint was dealt with inadequately by the broadcaster leading inevitably to a reference on to the Authority. Further, that reference has now been frustrated by the absence of the tape, leading to a most unsatisfactory outcome. Both the complainant and the Authority have been put to expense and inconvenience as a result.

For the reasons set forth above, the Authority declines to determine part of the complaint. It finds that Principle 8 of the Radio Code of Broadcasting Practice was breached because the broadcaster failed to retain a recording of the programme.

The Authority sought from the parties submissions under s.16(1) of the Broadcasting Act in relation to costs.

The broadcaster submitted that the absence of broadcast tapes was related to the inexperience of a newly appointed member of staff. It also advised that it intended to install a data recording system to overcome the problems it was experiencing with not retaining tapes of its programmes, as required.

In his submission, Mr Campbell maintained that, in his view, the tapes had been disposed of in order to hide the evidence that racist remarks were broadcast on Radio Pacific. He said he did not accept The RadioWorks’ explanation which blamed a staff member’s inexperience.

Given the unsatisfactory manner in which this complaint was dealt with by The RadioWorks, including the lack of a tape of the broadcast and the apparent absence of a proper system to deal with formal complaints as required under the Act, the Authority decides that an order is appropriate on this occasion.

As the Authority declined to determine the substantive complaint, it does not have the power to order the broadcaster to pay costs to the Crown under s.16(4). However, s.16(1) confers on it the power to order costs to be paid to any party in any proceedings. In the circumstances it decides it is appropriate to order the broadcaster to pay costs to the complainant in the amount of $250.00. It reaches this decision because the complainant’s right to have his complaint dealt with by the Authority was thwarted by the broadcaster’s failure to comply with the provisions of the Broadcasting Act 1989. In those circumstances the Authority decides it is appropriate to make an order in his favour. The Authority also takes into account that this is the seventh decision it has released this year relating to a broadcast on Radio Pacific where the broadcaster failed to provide a tape of the broadcast.

Order

Exercising its powers under s.16(1) of the Broadcasting Act 1989, the Authority orders The RadioWorks Ltd to pay Hohepa Campbell the sum of $250.00 within one month of the date of this decision.

The Order shall be enforceable in the Palmerston North District Court.

Signed for and on behalf of the Authority

Rosemary McLeod
Member
29 June 2000

Appendix

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

1.    Hohepa Campbell’s Complaint to The RadioWorks – 17 January 2000
2.    Mr Campbell’s letter to the Authority – 21 February 2000
3.    The RadioWorks’ Response to the Authority – 3 March 2000
4.    The RadioWorks’ Response to the Formal Complaint – 14 March 2000
5.    Mr Campbell’s Final Comment – 18 March 2000
6.    Mr Campbell’s Submission on Penalty – 19 May 2000
7.    The RadioWorks’ Submission on Penalty – 30 May 2000
8.    Mr Campbell’s Further Comment – 31 May 2000