BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has upheld a complaint that action taken by NZME in response to a breach of the promotion of illegal or antisocial behaviour standard during a segment of Fletch, Vaughan and Hayley on ZM was insufficient. The Authority agreed that the item, which discussed searching for the cheapest alcohol with the highest alcohol by volume (ABV), amounted to alcohol promotion that was socially irresponsible. While the broadcaster upheld the complaint, removed the relevant segment from their online podcast and counselled the content directors and hosts of ZM on their obligations around alcohol promotion, the Authority found this was insufficient to remedy the harm caused by the broadcast – noting, in particular, there had not yet been any public acknowledgement of the breach for the audience.

Upheld: Promotion of Illegal or Antisocial Behaviour (Action Taken)

Order: Section 13(1)(a) – broadcast statement 

The broadcast

[1]  During a segment on ZM’s Fletch, Vaughan and Hayley, broadcast from 7.09am-7.16am on 15 March 2024, the hosts discussed a Reddit post titled “Highest alcohol percentage for least amount of bucks, what’s the best from any liquor store?” which had been posted on the r/auckland subreddit.¹ The segment was introduced as follows:

Vaughan:    Well, I stumbled across something on Reddit last night… that’s a bloody good question and I needed an answer…this was the question posed… on Reddit: Highest alcohol percent for least amount of bucks. What’s the best?

…

Fletch:         Also, are we the only people in the world that look at the percentage of alcohol before we decide on what we’re drinking on for a night out?

Hayley:        This is me all the time – look at the bottle, turn it around, how many standards [standard drinks]?

…

Fletch:         You want bang for buck if you’re going out.

Hayley:        That’s the thing. I’m not gonna drink it if it’s not gonna get me drunk – what’s the point?

[2]  Following a story from one host relating how she had purchased drinks mistakenly thinking they were one standard drink rather than two, and how this had quickly made her more drunk than she had intended to be, the hosts made comments about drinking responsibly as follows:

Fletch:         I will say at this point, please drink responsibly.

Vaughan:    Of course, drink responsibly.

Hayley:        Of course.

Vaughan:    But we’re not talking about getting wasted, we’re talking about economy.

Fletch:         Bang for buck.

Vaughan:    Yeah, bang for buck.

[3]  The hosts discussed some of the comments responding to the Reddit post as follows:

Vaughan:    So the comments on this are pretty good... Someone said ‘West Aucks eight-and-a-half percent alcoholic ginger beer, 1.25 litres for twelve bucks.’

Hayley:        Yeah because I was thinking like a Scrumpy, because that’s heavy in the drinks.

…

Vaughan [reading out comment]: ‘If you can get Harvest Scrumpy on special, that’s a great power-to-weight ratio.’

[4]  The hosts also discussed their own experiences drinking, and some of the consequences of alcohol consumption:

Hayley:        Used to get a goon of Kristov and Orange, and you’d get a box which had 30 [standard drinks] in it.

Vaughan:    That thing was a headache... you’d be drinking, and the hangover was kicking in.

Hayley:        When you’re, quote unquote, ‘eighteen’, hangovers are nothing – you just like, whatever, bounce back the next day.

Fletch:         I reckon I deal with it better now than I ever have.

Hayley:        Yeah me too, I’m pretty resilient.

Vaughan:    I’m just a trained professional.

…

Vaughan [reading out comment]: ‘Cask wine from Pak N Save, mix it with a Lift Plus.’

…

Fletch:         This is good, good stuff.

[5]  The hosts then discussed how purchasing alcohol had changed since they first started drinking:

Vaughan [reading out comment]: ‘I miss my teen years of buying a Mississippi Moonshine bottle for ten bucks and that would take care of eight of you.’

…

Fletch:         The days of 10-dollar bottles of Kristov are long gone.

Vaughan:    And you know what? Rightly so.

Hayley:        Oh, thank god.

…

Vaughan:    Absolutely rightly so. That was nuts.

Fletch:         Because of the quality? Or the ease to buy cheap liquor?

Hayley:        Yeah, I dunno, both.

Vaughan:    Both. For 10 dollars?

Fletch:         Yeah, that’s crazy, huh.

Vaughan:    No, that’s wildly irresponsible.

…

Vaughan:    Somebody else said ‘Haagen beers…. 7.2%, 16 bucks for a four-pack of high-quality European alcohol’… Someone else said, ‘this is depressing’.

The complaint and the broadcaster’s response

[6]  Communities Against Alcohol Harm (CAAH) complained the broadcast breached the promotion of illegal or antisocial behaviour standard of the Code of Broadcasting Standards in New Zealand on the basis the segment ‘advocated excessive consumption of alcohol and portrayed such consumption as positive and desirable’.

[7]  The broadcaster NZME upheld the complaint, for the following reasons:

• It accepted the segment amounted to alcohol promotion in the form of ‘advocacy’ as defined under the standard.
• Considering whether the alcohol promotion was socially responsible, NZME noted the context of the broadcast is crucial in assessing its likely practical effect. Relevant factors in this case include:
  • The hosts talking about how they check the ABV and number of standard drinks when purchasing alcohol, with Fletch saying he wanted ‘bang for buck’ and Hayley indicating she looked for alcohol with a large number of standard drinks.
  • All three hosts endorsed drinking responsibly, with one saying, ‘we’re not talking about getting wasted, we’re talking about economy’.
  • The hosts referred to hangovers as a consequence of drinking, but subsequently noted younger drinkers tend to recover faster from hangovers, and that they felt they recovered more quickly now than when they first started drinking.
  • The hosts editorialised the Reddit post to an extent, for example refraining from reading comments discussing drinking isopropyl alcohol and methylated spirits.
  • ZM has a target audience of 18–39-year-olds and is known for its ‘edgy and irreverent humour’.
• ‘While finely balanced, taking into account the overall tone, content and context of the broadcast… the broadcast segment may not have met the test of social responsibility set out in the guidelines to this standard.’

[8]  NZME advised it took the following actions in response to upholding the complaint:

• The hosts of the broadcast were ‘counselled on their responsibilities regarding alcohol, as set out in guidelines 3.3 to 3.5 of the Code’.
• NZME’s Chief Audio Officer, Chief Content Officer – Music Brands, and ZM’s Content Director were made aware of the complaint and its outcome.
• The segment was removed from the relevant episode of the Fletch, Vaughan & Hayley Podcast and is no longer available online to listeners.

[9]  CAAH referred the complaint to us on the basis it was dissatisfied with the action taken by the broadcaster. It considered the action taken by NZME was insufficient because:

• There was no public acknowledgement of the breach, and it is important that the public are aware of breaches, so they are better equipped to hold broadcasters accountable. CAAH requested a broadcast statement be ordered by the Authority to publicise the breach and the actions NZME has taken to remedy it.
• The disclaimer to drink responsibly during the segment was disingenuous in tone and context and ‘did not wind back the advocacy of excessive consumption or portrayal of such consumption as positive and desirable in the segment’.
• ‘the actions taken by NZME have not appropriately remedied actual or potential harm that may have arisen from the breach of Standard 3 which deals with promotion of illegal or antisocial behaviour, with specific clauses relating to alcohol, a harmful drug’.

[10]  Responding to the referral, NZME maintained the actions taken to address the breach were sufficient and proportionate because:

• The social media post which inspired the segment remains online and can be easily found via online search, as well as numerous other social media posts with similar content, which NZME has no control over.
• ‘NZME considers that any further on-air discussion of this online content would carry a risk of drawing further attention to it and compounding the harm’.
• ‘there are numerous decisions of the Authority which have considered complaints that were upheld by a broadcaster in the first instance, and decided no further action was required’.
• There is no presumption that a broadcast statement will be ordered when a formal complaint is upheld.

The relevant standard and guidelines

[11]  The purpose of the promotion of illegal or antisocial behaviour standard² is to prevent broadcasts that encourage audiences to break the law or are otherwise likely to promote criminal or serious antisocial activity.³ The commentary defines serious antisocial activity as ‘contrary to the laws or customs of society to such a degree that a significant number of people would find it unacceptable (e.g. sexual violence, suicide, substance abuse). It involves actions which are likely to have consequences for people in the real world. It is broader than illegal activity and can include other antisocial behaviour (e.g. bullying real people in broadcasts).’⁴

[12]  Context, and the audience’s ability to exercise choice and control, are crucial in assessing a programme’s likely practical effect under this standard.⁵ Relevant factors may include the time of broadcast, the target and likely audience, and audience expectations of the programme and the radio station.

[13]  As it relates to alcohol promotion, guidelines to the standard state:⁶

Alcohol promotion may be in one or more of the following forms:

• Promotion of an alcohol product, brand or outlet (‘promotion’)
• Alcohol sponsorship of a programme (‘sponsorship’)
• Advocacy of alcohol consumption ('advocacy’).

Any alcohol promotion in a broadcast should be socially responsible including that it:

• Must not encourage consumption by people who are under the legal age to purchase alcohol.
• Must not occur in programmes specifically directed at children.
• Must not dominate a broadcast.
• Must avoid advocacy of excessive alcohol consumption and portraying it as positive or desirable.
  …

Our analysis

[14]  We have listened to the broadcast and read the correspondence listed in the Appendix. Both parties have provided the Authority with further submissions.

[15]  We have also considered the right to freedom of expression, which is our starting point in determining any complaint. Our task is to weigh the right to freedom of expression – which here includes the broadcaster’s right to offer a range of content targeted to the station’s audience, and the audience’s right to receive it – against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the resulting limit on the right to freedom of expression is demonstrably reasonable and justified in a free and democratic society.⁷

Promotion of Illegal or Antisocial Behaviour

[16]  Where the broadcaster has already upheld the complaint in the first instance, our role is to consider whether the action taken by the broadcaster was sufficient to remedy the breach.⁸

[17]  We first considered whether we agreed with NZME’s finding that there was a breach of the promotion of illegal or antisocial behaviour standard.

[18]  We also find the broadcast amounted to alcohol promotion that was socially irresponsible, in breach of the standard, for the following reasons:

Did the segment amount to ‘alcohol promotion’?

• The subject of alcohol purchase and consumption made up the majority of the segment.⁹ The focus was on choosing alcohol products with the highest ABV for the cheapest price. In our view, this amounted to ‘advocacy’ of alcohol consumption.
• During the segment the hosts read out recommendations from listeners for various alcohol products, including mentioning multiple brands and some prices. This arguably also amounted to ‘promotion’ of particular products and brands.

If yes, was the alcohol promotion ‘socially responsible’?

• The Authority has previously found alcohol promotion in a broadcast to be socially irresponsible where excessive alcohol consumption is portrayed as positive and desirable without acknowledging the negative effects.¹⁰
• Viewed as a whole, the segment did not avoid advocacy of excessive alcohol consumption or portraying it as positive and desirable. The introduction regarding the Reddit post and the hosts’ initial comments support this; the hosts spoke about deliberately looking for the cheapest alcohol with the highest ABV when purchasing alcohol and referred to wanting ‘bang for buck’ and ‘I’m not going to drink if it’s not going to get me drunk’.
• The hosts endorsed ‘drinking responsibly’ and there were some other mitigating comments (e.g. one Reddit comment, ‘this is depressing’; the hosts commenting ‘rightly so’ in relation to alcohol that was once very cheap now costing a lot more). We do not consider these were ‘disingenuous’ as alleged in the complaint. However, they were undermined by the remainder of the segment and therefore ineffective in our view; the mitigating comments were both preceded and followed by reading out further recommendations from the Reddit post, and the segment as a whole was dominated by alcohol promotion and positive comments about alcohol consumption.
• The segment did not adequately acknowledge the negative effects of alcohol consumption. References to hangovers as a consequence of excessive drinking were undermined by the hosts’ comments, ‘I reckon I deal with it now better than I ever have’, ‘Yeah me too, I’m pretty resilient’ and ‘I’m just a trained professional’.
• The Authority has previously noted that the time of broadcast can be a factor in determining whether a broadcast is socially responsible.¹¹ This segment aired at 7.09am which is recognised to be during children’s listening times, whether or not the programme or station was targeted at children.

Action taken

[19]  Having determined that the broadcast breached the promotion of illegal or antisocial behaviour standard, the next question is whether or not the action taken by the broadcaster appropriately remedied the alleged harm. In making this assessment, we consider the severity of the conduct, the extent of actual or potential harm that may have arisen and whether the action taken appropriately remedied the alleged harm.¹²

[20]  Considering first the extent of actual or potential harm, we accept some mitigating actions were taken by the hosts during the broadcast:

• During the segment, the hosts made a number of comments reminding listeners to ‘please drink responsibly’.
• The hosts commented on how much cheaper alcohol had been when they first started purchasing alcohol, including spirits being available for as little as $10. They referred to this being ‘wildly irresponsible back in the day’ and said it was good that alcohol was no longer available for that price.
• The hosts of the programme did edit the contents of the social media post to an extent for discussion on air and chose not to read out comments about drinking isopropyl alcohol or suggesting cheap Russian or Finnish alcohol with a high number of standard drinks.

[21]  However, we consider these mitigations were undermined by other comments throughout the segment, with the overall impact being that alcohol promotion dominated the broadcast – placing the breach at the higher end of the spectrum.

[22]  Turning to the broadcaster’s conduct, we acknowledge the broadcaster has upheld the complaint, removed the relevant segment from their online podcast and taken the steps of providing counselling to the hosts of the programme about their obligations relating to responsible alcohol promotion. Training may prevent future harm, and removing the broadcast from an online platform prevents further harm from being caused by the segment.

[23]  However, we do not consider these actions are sufficient to remedy the potential harm caused by the broadcast, for the audience – namely the promotion of excessive alcohol consumption, and particularly at a time when children or young people could be listening, which we have found to be socially irresponsible. As yet there has been no public acknowledgement of the breach.

[24]  For these reasons, we uphold the complaint with respect to the action taken.

For the above reasons the Authority upholds the complaint that the action taken by NZME Radio Ltd regarding an item on Fletch, Vaughan and Hayley on 15 March 2024, having upheld the complaint under Standard 3 (Promotion of Illegal or Antisocial Behaviour) of the Code of Broadcasting Standards in New Zealand, was insufficient.

[25]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We issued our provisional decision and invited submissions on orders from the complainant and the broadcaster.

Submissions on orders

[26]  CAAH welcomed the decision. On orders it submitted: 

• ‘…it would be appropriate for the BSA to order NZME to broadcast a statement acknowledging breach of Standard 3, summarising the key facts of the decision, and informing their audience that they failed to meet their responsibilities as set out in the Code.’
• The statement should be broadcast on a Friday morning after 7am and before 7.20am.
• NZME should submit the statement to the Authority for prior approval.
• ‘…it is appropriate for the public in general to be informed when broadcasting standards are breached to ensure broadcasters are kept accountable, and… it is particularly important for the audience who were subject to the breach of the broadcasting standards to be informed, so they can have better awareness of what standards to expect from their broadcasters.’
• ‘…it is not unreasonable that a statement be broadcast acknowledging this breach of standards. Such an on-air acknowledgment is appropriate and provides a non-onerous route to provide a limited remedy to the harm from the broadcast.’
• Ordering a statement would be ‘proportionate, precedented, and does not represent a limit on NZME’s freedom of expression’.
• ‘We are not requesting orders for NZME to pay costs or suspend broadcast of ZM.’

[27]  NZME noted the Authority’s decision upholding the complaint and did not request any changes to the decision. It submitted no order should be made in this case, on the basis:

• The complaint was upheld by NZME in the first instance, the relevant clip of the broadcast was removed from the Fletch, Vaughan and Hayley podcast, and the hosts were counselled on their responsibilities regarding the Promotion of Illegal or Antisocial Behaviour standard.
• In addition to the action already taken, publication of the Authority’s decision will be sufficient to publicly censure NZME, and to provide guidance to broadcasters on the application of the standard.
• CAAH had earlier expressed the view that the severity of the breach in this case did not warrant an order to pay costs or to suspend broadcasting.

Authority’s decision on orders

[28]  In determining whether orders are warranted and the type of order to impose, we consider the following factors: 

• the seriousness of the breach and the number of upheld aspects of the complaint 
• the degree of harm caused to any individual, section of society or the audience generally 
• the objectives of the upheld standard(s) 
• the attitude and actions of the broadcaster in relation to the complaint (e.g. whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated the breach and 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. 

[29]  Drawing from our findings above, we consider the following factors are relevant in this case: 

• We have found the broadcast breached guidelines relating to alcohol promotion under the Promotion of Illegal or Antisocial Behaviour standard and upheld the complaint that action taken by NZME in response to that breach was insufficient.
• We have found the overall impact of the broadcast – notwithstanding some mitigations by the hosts – was that alcohol promotion dominated the segment, at a time when children could be listening. This places the breach at the higher end of the spectrum. There was a clear potential for harm through the promotion of excessive alcohol consumption, including to younger listeners.
• We acknowledge the broadcaster’s decision to uphold the complaint in the first instance, and the actions it took in response – removing the segment from the online version of the broadcast,¹³ making chief NZME Content staff aware of the complaint and the outcome and counselling the hosts on their responsibilities regarding the Promotion of Illegal or Antisocial Behaviour Standard.
• However, to date, there has been no public acknowledgement of the breach for ZM’s or Fletch, Vaughan and Hayley’s audience. Publication of our written decision will not necessarily serve this purpose.
• We have taken into account two past similar cases in which the Authority upheld breaches of guidelines relating to alcohol promotion on morning radio broadcasts, during children’s listening times. In both cases, broadcast statements were ordered.¹⁴
• Finally, we noted this appears to be the first complaint, as well as the first uphold, against NZME regarding alcohol promotion.

[30]  In these circumstances, we agree with the complainant that ordering the broadcast of a statement summarising the upheld aspects of the decision, is an appropriate and proportionate response to the breach in this case. We consider the rationale and objectives of such an order, as described in the Alcohol Healthwatch case, also apply here (notwithstanding that the breach and the broadcaster’s conduct in that case may be viewed as more serious).¹⁵ A broadcast statement will provide a public denunciation of the breaches and help remedy the harm caused by the broadcast. It will also give guidance to broadcasters on the application of the standard and confirm the Authority’s expectations around ensuring any alcohol promotion is socially responsible.

[31]  Consistent with the Authority’s usual practice, the broadcaster will draft a statement summarising the upheld aspects of our decision, for approval by the Authority. We agree with the complainant that the statement should be broadcast at a similar time, and on the same day of the week, as the original broadcast, in order to reach a similar audience.

[32]  Given the segment has not been available anywhere online since NZME upheld the complaint and removed the relevant clip from the corresponding Fletch, Vaughan and Hayley podcast, we do not consider it necessary to order that the broadcast statement also be published online.

[33]  We also agree no other orders are justified in this case. The broadcaster has acknowledged the breach from the outset, taken reasonable steps to prevent ongoing and future harm, and accepted our decision. Therefore, the conduct does not warrant any punitive response or an order for costs.

Order

Under section 13(1)(a) of the Act, the Authority orders NZME Radio Ltd to broadcast a statement. The statement shall: 

• summarise the upheld aspects of the Authority’s decision
• be approved by the Authority prior to being broadcast 
• be broadcast during Fletch, Vaughan and Hayley on the same day of the week and at a similar time to the original broadcast
• be broadcast within one month of the date of this decision. 

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainant of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Susie Staley
Chair
2 September 2024

Appendix

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

1  CAAH’s formal complaint to NZME – 20 March 2024

2  NZME’s response to the complaint – 10 April 2024

3  CAAH’s referral to the Authority – 15 April 2024

4  NZME’s comments on the referral – 3 May 2024

5  CAAH’s further comments – 9 May 2024

6  NZME’s confirmation of no further comments – 14 May 2024

7  CAAH’s submissions on Authority’s Provisional Decision and orders – 23 July 2024

8  NZME’s submissions on Authority’s Provisional Decision and orders – 30 July 2024

9  NZME clarification re availability of segment online – 2 August 2024

¹ Originally posted on Wednesday 13 March 2024 by reddit user F3L1Xgsxr at
² Standard 3, Code of Broadcasting Standards in New Zealand
³ Commentary, Standard 3, Code of Broadcasting Standards in New Zealand at page 11
⁴ Commentary, Standard 3, Code of Broadcasting Standards in New Zealand at page 11
⁵ Guideline 3.1
⁶ Guidelines 3.4 and 3.5
⁷ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁸ See, for example, Muir & Knight and Radio New Zealand Ltd, Decision No. 2024-008 at [17] and Horowhenua District Council and MediaWorks Radio Ltd, Decision No. 2018-105 at [19]
⁹ See Alcohol Healthwatch Trust and MediaWorks Radio Ltd, Decision No. 2020-053 at [12] for a similar finding.
¹⁰ See O’Neill and TVWorks Ltd, Decision No. 2011-127 at [19]
¹¹ See Turner and Television New Zealand Ltd, Decision No. 2008-048 at [13]
¹² See, for example, Muir & Knight and Radio New Zealand Ltd, Decision No. 2024-008 at [23] and Lerner and MediaWorks Radio Ltd, Decision No. 2021-091 at [9]
¹³ ZM “Fletch, Vaughan & Hayley’s Big Pod – 15 March 2024” (15 March 2024)
¹⁴ Alcohol Healthwatch Trust and Mediaworks Radio Ltd, Decision No. 2020-053; Regional Public Health, Hutt Valley District Health Board and The Radio Network Ltd, Decision No. 2007-030.
¹⁵ Alcohol Healthwatch Trust and Mediaworks Radio Ltd, Decision No. 2020-053 at [23].