BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

The fate of money belonging to Holocaust victims but deposited in Swiss bank accounts during World War II was the subject of commentary on "Aspects of Israel" broadcast on Access Radio on 29 June 1997 beginning at 11.15am. The commentator questioned the honesty of the Swiss in dealing with the money.

Mr Carson of Wellington complained to Access Radio, the broadcaster, that the remarks impugned the integrity of the Swiss and, therefore, were offensive and discriminatory.

Access Radio responded that the comments related to Swiss banks and bankers, and did not refer to the Swiss as a people. Further, it considered that even if ill will was incited against those bankers who controlled the assets of Holocaust victims, it was unlikely that any of those people were in New Zealand. Referring to standard R14 of the Radio Code of Broadcasting Practice, Access Radio argued that the exemption, which permits expression of serious opinion, applied. It declined to uphold the complaint. Dissatisfied with Access Radio’s decision, Mr Carson referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

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

Decision

The members of the Authority have listened to a tape of the item complained about and have read the correspondence, which includes a transcript (summarised in the Appendix). On this occasion, the Authority determines the complaint without a formal hearing.

During the programme "Aspects of Israel", broadcast on Access Community Radio (Wellington) on 29 June 1997, beginning at 11.15am, the commentator, David Zwartz (Chair of the New Zealand Jewish Council) referred to the fate of money belonging to Holocaust victims which was deposited in Swiss bank accounts during World War II. He noted that two years ago Swiss banks had discovered they had about 800 dormant accounts which they knew belonged to Jews who had perished in the war, and which they had frozen for fifty years, denying access to them on behalf of relatives. He reported that a committee was appointed to investigate the accounts, and suddenly the Swiss revealed that they had another 15 – 20,000 dormant accounts which were opened during the war years. He continued:

I must say personally I think that the Swiss have absolutely no credibility whatsoever any more in terms of their honesty in relation to this issue of the surviving assets of Jews who died during the Holocaust. It seems to me that their so-called reputation as bankers or as honest people has just gone down the drain totally, and of course it’s compounded by the treatment of the security guard who discovered that documents were being shredded which related to the holding of wartime bank accounts, and when he revealed this and actually smuggled some documents out has been reviled and threatened and I think now has gone to the United States because that was the only place where he would be able to get some peace for his family.

Mr Carson complained to Access Community Radio, the broadcaster, that questioning the honesty and reputation of the Swiss was a breach of standards R6 and R14 of the Radio Code of Broadcasting Practice. In his view, the remarks made by Mr Zwartz referred to the Swiss people as a whole and were not qualified or limited. Mr Carson also suggested that to challenge the honesty and reputation of the Swiss was an offence under the Human Rights Act 1993.

The nominated standards require broadcasters:

R6 To respect the principles of law which sustain our society.

R14 To avoid portraying people in a manner that 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 is not intended to prevent the broadcast of material which is

i)   factual, or

ii)  the expression of serious opinion, or

iii)  in the legitimate use of humour or satire.

In a brief response, Access Radio advised that standard R6 was not applicable in this case. Turning to standard R14, it argued that serious opinion was permissible under exemption (ii) of that standard. It advised that it accepted the commentator’s assertion that he was not talking about Swiss people but only about those involved with banking. Access Radio considered that the context fully supported that interpretation.

When Mr Carson referred the complaint to the Authority he contended that the transcript contradicted Access Radio’s interpretation of the remarks made. He argued that if the commentator intended to talk only about bankers, he had no reason to use the word people. Further, he contended, the tone of the commentary made it clear that it was intended to be received as serious opinion.

A comprehensive submission by the commentator on behalf of Access Radio responded to Mr Carson’s referral to the Authority. First, it maintained that the context clearly indicated that the comment was about Swiss banks and/or the Swiss government, and not the Swiss people in general. Further, it argued, the comments were protected as factual under exemption (i) of standard R14, and the expression of serious opinion (exemption ii). In addition, it contended that even if the comment had been about Swiss people, it would not encourage denigration or discrimination against Swiss people in the New Zealand community as required under standard R14.

In his final comment, Mr Carson responded that the comments complained about were not factual, but belonged in the opinion category. He repeated his observation that if the commentator intended to talk about bankers, he should not have said people.

In its determination of this complaint, the Authority confines its deliberations to the broadcast, and to an assessment of the complaint against standards promulgated under the Broadcasting Act 1989.

At the outset the Authority records that some misconceptions from both parties about the procedural aspects of the complaints process were apparent. The process for dealing with formal complaints is set down in the Broadcasting Act 1989. Broadcasters are required to have a proper procedure for dealing with complaints (s.5(a)) and, when notifying the complainant of the outcome, are required to advise the complainant that they have a right, by way of referral to the Authority, to seek an investigation and review of the broadcaster’s decision or action (s.7(3)). Complaints are confined to an allegation about breaches of s.4 of the Act (s.6). The question of penalty is a matter for the Authority when it decides that a complaint is justified (s.13) and the types of orders are circumscribed in that section and in s.16(4) as amended in 1996.

The Authority therefore puts to one side the submissions regarding the process by which a complaint about a former contributor was dealt with (it not being a matter of broadcasting standards which could be referred to the Authority for ajudication); the analysis of case law under the Human Rights Act 1993; and the question of penalty. It reminds Access Radio of its obligations under s.5(a) and s.7(3).

The matter for the Authority is whether the comments made on "Aspects of Israel" breached the standards nominated by the complainant.

Dealing first with standard R6, the Authority points out that even if there were breaches of the Human Rights Act 1993, it is not for it to determine such a matter. It therefore declines to uphold this aspect of the complaint.

Next it turns to the complaint that the words spoken in the commentary denigrated or discriminated against the Swiss people. The Authority considers that the context made it clear that it was the Swiss banking community which attracted the criticism from the commentator, because it was the bankers who allegedly withheld the information about the dormant accounts for so many years. The whole theme of the commentary, it considers, was that the banking system, and individuals within it, were responsible for questionable banking practices concerning the accounts of victims of the Holocaust.

However, even if the comments could be extended to include the Swiss people as a whole, there is an exemption under R14(ii) regarding the expression of serious opinion. The comments were introduced by the phrase "I must say personally I think…" and "It seems to me…" . The Authority notes that Mr Carson himself acknowledged that it was clear that the remarks were the opinion of the commentator. It therefore declines to uphold this aspect of the complaint.

As an additional point, the Authority refers to standard R4 which requires broadcasters:

R4 To acknowledge the right of individuals to express their own opinions.

It is the Authority’s view that the commentator’s right to his opinion is further safeguarded by this standard. Accordingly, it declines to uphold any aspect of the complaint.

For the reasons set forth above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Lyndsay Loates
Member
7 May 1998

Appendix

Don Carson’s Complaint to Access Radio (Wellington) – 9 July 1997

Mr Carson of Wellington complained to Access Radio (Wellington) about comments made during the programme "Aspects of Israel" on 29 June 1997 at about 11.30am. During the programme, the presenter discussed the issue of money belonging to Holocaust victims which was deposited in Swiss bank accounts by Nazis during World War II. He noted that surviving relatives had been denied access to the accounts and that the manner in which Switzerland had dealt with the assets had been an issue for fifty years. He described the Swiss as having no credibility in terms of their honesty in relation to this issue.

Mr Carson complained that the presenter’s judgment on the integrity of the Swiss people was a clear violation of the law, and of standards R6 and R14 of the Radio Code of Broadcasting Practice.

When asked by the station to be more specific, Mr Carson responded in a letter dated 13 August. The station sent him a transcript of the relevant part of the broadcast.

Mr Carson observed that the remarks made about the Swiss banks or government were quite acceptable, and were sentiments he agreed with. However, he noted the commentator had gone beyond that when he stated:

"The Swiss have absolutely no credibility whatsoever any more in terms of their honesty…their so called reputation as bankers or honest people has just gone down the drain totally."

Mr Carson pointed out that those remarks were against a people of a nation at large. They were not qualified or limited. He suggested that if one were to change the word "Swiss" to "Jews", it would be clear that the comments were highly objectionable.

Mr Carson noted that under the Human Rights Act 1993, it was an offence to "incite hostility or ill will against, or bring into contempt or ridicule" any group on the ground of their national origins. He concluded:

The Swiss people are a national group, and challenging their honesty and reputation has brought them into such odium as described in the act.

Access Radio’s Response to the Formal Complaint – 10 October 1997

Access Radio advised that it had considered the complaint under the provisions of the Human Rights Act, the Broadcasting Act and the Radio Code of Broadcasting Practice.

With respect to a breach of the Human Rights Act, section 61, it responded that in the context, the reference to the Swiss was in relation to Swiss banks and bankers, and could not be construed as meaning the Swiss at large.

Turning to s.131 of the Human Rights Act, it acknowledged that the words might have had the effect of inciting ill will against Swiss bankers who controlled the assets of Jews who had died, but considered it was extremely unlikely that any of those people were in New Zealand.

It advised that it did not consider standard R6 was applicable, and noted that under standard R14, exemption (b) permitted the expression of serious opinion. It accepted the presenter’s assertion that he was not talking about Swiss people in New Zealand or anywhere else, but only about Swiss involved with banking.

Access Radio therefore declined to uphold the complaint.

Mr Carson’s Referral to the Broadcasting Standards Authority – 6 November 1997

Dissatisfied with Access Radio’s decision, Mr Carson referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Mr Carson noted first that Access Radio failed to comply with s.7(3) of the Broadcasting Act 1989, which requires broadcasters to notify complainants of their right to refer the complaint to the Authority for investigation and review of their decision.

He also complained about the process Access Radio used to deal with the complaint. He noted that after it received the complaint it then heard from the party complained against. There was no opportunity to cross examine the party complained against, nor to know what their defence was based on until after the matter had been decided. Therefore, Mr Carson pointed out, he did not know what Mr Zwartz’s defence was until after he had been notified of its decision. He regarded this as neither sufficiently transparent nor following the rules of natural justice.

Mr Carson accepted that Mr Zwartz was mostly referring to Swiss Bankers. Nevertheless, he argued, the mention of the Swiss people was specific and severable. He noted that a similar reference was found to be actionable in Templeton v Jones [1984] 1 NZLR 448. In Mr Carson’s view, the assertion that he was only talking about Swiss bankers was contradicted by the words spoken in the broadcast. If he had only intended to talk about bankers, he would not have used the word "people". He wrote:

There is no requirement to discover ordinary meanings, dictionary meanings or innuendo. His repeated references to bankers set no limits. The reference to the Swiss people is in addition to the references to Swiss bankers, but is in no way contradicted or limited by them. The transcript words speak for themselves "…the Swiss have absolutely no credibility whatsoever any more in terms of their honesty…their so-called reputation as bankers or as honest people has just gone down the drain totally."

Access Radio is therefore demonstrably not correct when it states (10 October) "The expression (Swiss banks) (also) qualifies and limits the meaning of the expression to that of the Swiss banks and bakers. It cannot be construed as meaning Swiss at large…"

Furthermore intent is not a requirement under s.61 of the Human Rights Act.

Mr Carson said he did not believe the presenter’s intention was to only refer to bankers and he considered the words breached s.131 of the Human Rights Act as well.

Mr Carson referred to previous authority on the point, citing Proceedings Commissioner v Archer (1996) 3 HRNZ 123, which he enclosed. He noted that the test in Archer was whether the words were taken as abusive and insulting. In Mr Carson’s view, the remarks about the Swiss people were abusive and insulting.

Mr Carson concluded that as ss.61 and 131 of the Human Rights Act were breached, accordingly so was s.4 of the Broadcasting Act.

He then distinguished Archer from the present case. He noted that in Archer, humour was presented as a defence. In contrast, "Aspects of Israel" was "a serious and sober programme with a large component of measured political propaganda." Mr Carson noted that the presenter of the programme, Mr Zwartz, was President of the New Zealand Jewish Council, and that he gave his interpretation of current affairs in the Middle East.

The second aspect of Mr Carson’s complaint was with regard to a 1995 case where another presenter was taken off the air because of a complaint by Mr Zwartz. Mr Carson detailed some aspects of Access Radio’s dealing with that incident which he considered showed that it did not have regard for the principles of natural justice.

Mr Carson suggested that an appropriate penalty was to take Mr Zwartz off the air for a period not exceeding three months. He wrote:

This would sufficiently convey the level of concern while preserving the importance of the principle of freedom of speech.

Access Radio’s Referral to the Authority – 21 January 1998

Access Radio’s response came by way of an affidavit from Mr Zwartz, the presenter of the programme.

Mr Zwartz contended that the comment about the Swiss had to be considered in the context in which it was made. Pointing to the repeated reference to the Swiss banks and government, he argued that the context clearly indicated that the comment was about Swiss banks and/or the Swiss government and not the Swiss people in general. Moreover, he continued, the context was specifically articulated in parts of the comment that Mr Carson omitted to quote. Mr Zwartz advised that he said in the broadcast:

I must say personally I think that the Swiss have absolutely no credibility whatsoever any more in terms of their honesty in relation to this issue of the surviving assets of Jews who died during the Holocaust. It seems to me that their so-called reputation as bankers or as honest people has just gone down the drain totally.

The words in bold were omitted from Mr Carson’s complaint, he noted. However, he argued, those words made clear that the issue of the surviving assets of Jews who had perished in the Holocaust was an issue which involved Swiss banks and the Swiss government, and not Swiss people in general, and certainly not the Swiss people in New Zealand.

He maintained that the topic and context were well established in the mind of the listener before the comment was made.

Mr Zwartz distinguished the case of Templeton v Jones [1984] 1 NZLR 448 which was cited by Mr Carson in support of his contention that the reference to the Swiss people was severable and actionable.

He maintained that his comments relating to Swiss banks and/or the Swiss government were protected as "factual" and "the expression of serious opinion" under standard R14 of the Radio Code of Broadcasting Practice. Moreover, he argued, they represented a legitimate exercise of free expression under s.14 of the New Zealand Bill of Rights Act.

However, he continued, even if the comment had been about Swiss people, it would not encourage denigration of or discrimination against Swiss people in the New Zealand community, as required under standard R14.

With respect to standard R6, Mr Zwartz submitted that the complainant had not made out a case that his broadcast failed to respect the fundamental legal tenets that hold together civilised society.

Mr Zwartz pointed out that standard R14 was not a hard and fast restriction and noted that it had to be balanced under the standard R4 freedom of individuals to express their own opinions. He argued that his comment, even if it were about the Swiss people, was a legitimate exercise of free speech. In addition, he noted that the Access Radio Code of Practice had a particular focus on free speech issues (standard R(A)9. He also pointed to s.14 of the New Zealand Bill of Rights Act 1990 which guarantees the right to freedom of expression. Mr Zwartz wrote:

As Chair of the New Zealand Jewish Council I believe that I am well-placed to exercise the freedom to express opinions about discrimination against Jewish people – discrimination which historically has been extreme and, as evidenced by the Swiss banking issue, continues to this day.

Mr Zwartz emphasised that his comments were introduced by "I must say I personally think", which clearly indicated that it was an expression of opinion.

With respect to the penalty suggested by Mr Carson, Mr Zwartz submitted that his proposal went beyond the powers of the Authority under the Broadcasting Act, and was excessive.

Mr Zwartz noted that the Authority did not have jurisdiction to determine breaches of the Human Rights Act. He suggested that it was open to Mr Carson to make a complaint to the Human Rights Commission.

Finally, with respect to the argument that Access Radio’s response was at variance with a previous decision, Mr Zwartz responded that even if that were so, both Access Radio and the Authority were able to make a decision on the facts alone.

Mr Zwartz concluded that Access Radio’s decision not to uphold the complaint was correct as a matter of law.

In a letter dated 28 January 1998, Access Radio advised that Mr Zwartz’s submission constituted the station’s response.

Mr Carson’s Final Comment – 7 April 1998

Mr Carson advised that his final comment was a response to Mr Zwartz’s submission. He added that the thrust of his case was contained in his two earlier letters.

Mr Carson rejected the submission that the comments were protected under R14 (i) because they were factual. He maintained that the comments were Mr Zwartz’s opinion.

Next Mr Carson refuted Mr Zwartz’s argument that he had interpreted the word "people" out of context. He referred to his letter of 6 November where he had argued that a logical interpretation of Mr Zwartz’s commentary was that it was the Swiss people in general, and not just Swiss bankers who reviled and threatened the security guard who smuggled documents out of the country which related to the wartime bank accounts.

Mr Carson repeated that if Mr Zwartz meant only Swiss bankers, he should not have said "people".

Mr Carson challenged Mr Zwartz’s interpretation of the decision in Templeton v Jones.

Regarding Mr Zwartz’s argument for free speech, Mr Carson responded that Access Radio had denied that right to a former commentator on Access Radio.

Turning to Mr Zwartz’s response to the recommendation that a suitable penalty was to restrain Mr Zwartz from broadcasting for three months, Mr Carson responded that it was extraordinary that Mr Zwartz sought to restrain the Authority from imposing a penalty which was less than the ban imposed on a former Access Radio commentator.

Mr Carson argued that Mr Zwartz’s interpretation of the application of standard R6 ws too narrow.

Finally, he commented on the process used by Access Radio to determine complaints.