BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

During Leighton Smith the host discussed Wicked Campers with a caller and commented, ‘Now I’m interested to know what your reaction is to my suggestion that if you see one of these, you know, if you’re offended by one of these vans, run a screwdriver down through the so-called artwork’. The Authority did not uphold a complaint that the comments were irresponsible and encouraged listeners to break the law. It did not consider Mr Smith was seriously advocating damaging the campervans or that listeners would have been incited to commit unlawful acts, taking into account the target audience and the nature of the programme.

Not Upheld: Law and Order

Introduction

[1]  During Leighton Smith, the host had the following conversation with a caller about Wicked Campers, a campervan rental company known for its controversial slogans:

Mr Smith: [Wicked Campers] are the product of a sick mind as far as I’m concerned. Now I’m interested to know what your reaction is to my suggestion that if you see one of these, you know, if you’re offended by one of these vans, run a screwdriver down through the so-called artwork. And you say to that, what?

Caller: (Laughs) It’ll be just my luck there’ll be a security camera somewhere and then I’ll get done.

Mr Smith: I wonder what the outcome would be if you’re going around damaging other people’s property – it’s not on my list of things to do, mind you – but is there a time where, justifiably, you can do something like that?

[2]  Leanne Cowsill complained that Mr Smith’s comments were irresponsible and encouraged listeners to break the law.

[3]  The issue is whether the broadcast breached the law and order standard as set out in the Radio Code of Broadcasting Practice.¹

[4]  The item was broadcast on 21 March 2016 on Newstalk ZB. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Jurisdictional matter – scope of complaint

[5]  In her original complaint, Ms Cowsill specified that the broadcast took place at 9am and identified Mr Smith’s comment about using a screwdriver to cause damage, saying, ‘Leighton Smith was suggesting to people to go and key [Wicked Campers] with either a key or a screwdriver as he didn’t like the comments painted on their vehicles’. The corresponding comment transcribed above in paragraph [1] was contained in the recording supplied to us by NZME, with the time of broadcast being 9.11am.

[6]  In subsequent correspondence with the Authority, Ms Cowsill suggested that perhaps NZME had not supplied a recording containing the full extent of Mr Smith’s comments, but had only provided an excerpt from ‘after he calmed down’. We asked for further information from the broadcaster on this point, and it argued that any additional broadcast material was not within the scope of the complaint and that Ms Cowsill was now outside of the legislative time limit to complain about additional material.

[7]  The Authority’s task is to review the broadcaster’s decision. Our well-established approach to the scope of complaints and their determination is that our jurisdiction is limited to matters raised in the original complaint, and cannot extend to issues added at a later stage in the complaints process. We agree with the broadcaster that Ms Cowsill’s concerns about additional material or comments made by Mr Smith were not the subject of her original complaint, which specified the time of broadcast of 9am and one particular comment. Therefore we must limit our determination to the comments regarding screwdrivers set out at paragraph [1], and to the recording that has been provided to us.

Did the broadcast encourage viewers to break the law, or otherwise promote, condone or glamorise criminal activity?

[8]  The intent behind the law and order standard (Standard 2) is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.² The standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society.³

[9]  Ms Cowsill argued that Mr Smith’s comments were ‘irresponsible as people who were actually using Wicked [Campers] were at risk of having confrontations with people who may choose to take [Mr Smith’s] advice’. She considered that, rather than being light-hearted, the comments were ‘serious’ and ‘definitely directing people to go and [damage Wicked Campers]’.

[10]  NZME argued that Mr Smith ‘was not directing people to go and destroy these vehicles’, but was ‘in a relatively light-hearted way, pondering what might happen if you did do that’. It noted that, ‘While something may be against the law, mulling it over on air does not necessarily invite others to do the same.’ NZME did not consider that listeners ‘would see this as an instruction to destroy the campervans’.

[11]  In considering whether the broadcast could reasonably be expected to incite listeners to commit unlawful acts, we have had regard to the following relevant factors:

•  the nature of talkback radio, as a robust, opinionated environment
•  the light-hearted and jovial tone of the conversation between Mr Smith and the caller
•  Newstalk ZB’s adult target audience
•  audience expectations of the host and the programme.

[12]  We do not consider that Mr Smith was seriously advocating for listeners to damage Wicked Campers. Nor do we think that it would have had this effect, taking into account the above contextual factors. Mr Smith’s comments did not amount to a call to violence or to inciting a criminal act, but rather posing a question and musing about what would happen if people took matters into their own hands. The caller’s reaction reinforced that the comments were not to be taken seriously, as he laughed and responded in a joking manner. Additionally, Mr Smith pointed out that damaging Wicked Campers with a screwdriver was ‘not on his list of things to do’, which supports the view he was not intending to encourage such action.

[13] Talkback radio programmes and their hosts, including Mr Smith, are known for making provocative statements with the aim of instigating robust discussion with callers. In this case we think Mr Smith was simply reflecting public sentiment on the issue, and we are satisfied this was all that the comments amounted to. Having regard to Newstalk ZB’s adult target audience, we are satisfied that listeners would not have interpreted the comments as inciting them to commit unlawful acts in the manner envisaged by the law and order standard.

[14]  Accordingly we do not uphold the complaint under Standard 2.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich

Chair

27 June 2016

Appendix

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

1      Leanne Cowsill’s formal complaint – 21 March 2016
2      NZME’s response to the complaint – 1 April 2016
3      Ms Cowsill’s referral to the Authority – 11 April 2016
4      NZME’s response to the Authority – 21 April 2016
5      NZME’s response to request for further information – 16 May 2016

¹ This complaint was determined under the previous Radio Code, which applied up until 31 March 2016. The new Broadcasting Standards in New Zealand Codebook took effect on 1 April 2016 and applies to any programmes broadcast on or after that date: http://bsa.govt.nz/standards/overview

² See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082

³ Hunt and Māori Television, Decision No. 2009-010