BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

At the beginning of the Weekend Sport programme on Newstalk ZB, host Miles Davis referred to the ‘gridlock’ protest regarding COVID-19 restrictions. Davis said he had a message for the protestors, critiquing their form of protest and expressing what he would do if the protest blocked Davis on the road, including they would gain ‘a tyre iron’ through their windows followed up with some ‘football hooliganism’. The complainant stated this portion of the programme breached the good taste and decency, violence, and law and order standards as it incited violence. The majority of the Authority declined to uphold the complaint, finding the comments, on balance, constituted satire and humour and did not reach a threshold justifying regulatory intervention. The minority found the comments were likely to incite violence and breached all standards raised.

Not Upheld by Majority: Good Taste and Decency, Law and Order, Violence

The broadcast

[1]  In the beginning of Weekend Sport on 13 November 2021 on Newstalk ZB, host Miles Davis referred to the ‘gridlock’ anti-lockdown protest occurring across New Zealand that day:

One thing I want to say before we kick off with the show is that I've got a message for you anti-social maggots that are out on the motorways trying to block it. Mate, if you want to have a protest, do it. If you want to sort of put your case forward, do it, but don't do it by alienating the rest of the innocent populace of New Zealand, or particularly in Auckland at the moment. What do you think you're gonna gain? Do you know what you're going to gain? A tyre iron through your window if you get in the way of me, all right. And then I should follow up with a bit of good old football hooliganism, which I haven't been able to indulge for many, many years. But I still think, you know, in my memory banks, I remember how to do it. It may be a bit hard with these slides I've got on at the moment. But if there's any shops open, now that retail's open, I shall go and buy a pair of steel toe cap Dr Martens just to make sure I do an efficient job for you.

The complaint

[2]  Janet Curran complained the comments breached the good taste and decency, violence, and law and order standards:

• ‘This was a programme broadcast in the middle of the day which would attract a general audience including impressionable, young people’.
• ‘The host was presenting a sports talkback show and not a general talkback show. To bring up protestors and to state that he would throw a tyre iron through their car window and infer that he would use steel capped boots on them is completely out of context in a sports talkback show.’
• The comments do not ‘fall under “satire and humour” but are violent, extravagant comments that the host should not have uttered on public radio’.
• Citing previous incidents,¹ the suggestion of ‘throwing a tyre iron through a car window could certainly incite others to commit a similar violent act, as could the suggestion of’ using Dr Martens.
• ‘Any broadcaster, in this day and age, when we have so much violence reported in society and a breakdown in law and order, needs to be professional and consider their words very carefully and refrain from any type of language that might encourage people to break the law or incite violence, which is what I consider Miles Davis’s intemperate statements could easily have done.’

The broadcaster’s response

[3]  NZME Radio Ltd (NZME) did not uphold the complaint. It noted:

• ‘Newstalk ZB is an adult targeted radio station for 30-64 year olds.’
• ‘Miles Davis is a talk host known for his frank and forthright discussion of all manner of topics and regular listeners would be aware of this.’
• ‘The show in question is a sports talkback show, which has been recognised as a special category of radio by the Authority’.² ‘While the show in question is sports-focussed, that does not mean the host should not discuss non-sports related topics during the show.’
• ‘The host is known for his irreverent humour and outspoken style as a presenter on his sports talkback show… it would have been clear to listeners from the tone used and the fact that the host laughed during the segment that the comments complained of were made in jest and as such were unlikely to cause widespread undue offence or distress, or undermine widely shared community standards.’ NZME also acknowledged the complainant did not find the comments humorous, but noted ‘humour is subjective.’
• ‘As the Authority has recognised, “satire and humour are important and valued parts of freedom of expression”’.³
• Regarding the violence and law and order standards, NZME did not consider the comments, ‘which as already stated were made in jest’, fell into the ‘unduly disturbing or graphic violent content’ category, or were such as to ‘actively promote serious anti-social or illegal behaviour.’ ‘In view of the tone and clearly humorous nature of the host’s comments, they were not likely to incite or encourage violence or brutality.’
• Referring to a previous Authority decision finding a breach of the same standards,⁴ ‘the host’s comments during that broadcast called for collective violent action from his community. This is very different from the comments by the host here.’
• For the same reasons, the ‘broadcast did not actively promote serious antisocial or illegal behaviour’.

The standards

[4]  The purpose of the good taste and decency standard⁵ is to protect audience members from broadcasts likely to cause widespread undue offence or distress, or undermine widely shared community standards.⁶

[5]  The purpose of the law and order standard⁷ is to prevent broadcasts encouraging viewers to break the law, or otherwise promoting, glamorising or condoning criminal or serious antisocial activity.⁸ The standard states broadcasters should observe standards consistent with the maintenance of law and order.

[6]  The purpose of the violence standard⁹ is to protect audiences from unduly disturbing violent content.¹⁰ It states broadcasters should exercise care and discretion when referencing violence. The standard rarely applies to radio (as violent material has more impact visually).¹¹

Our analysis

[7]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[8]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified, in light of actual or potential harm caused.

[9]  The Authority was split on whether to uphold this complaint. The majority found the broadcast did not reach the thresholds justifying regulatory intervention. The minority found the broadcast went beyond these thresholds. As the Authority agreed on the facts and applicable principles, these areas are outlined first before addressing each decision.

Context

[10]  The context of the programme, and the wider broadcast are important considerations when assessing complaints under all three standards.¹² Regarding the programme, we have identified the following contextual factors:

• Newstalk ZB has an adult (35–64 year olds) target audience (although this specific programme was broadcast during times children and young people may be listening).¹³
• Weekend Sport is a sports talkback programme.
• Davis is known for his irreverent humour, and frank and forthright discussion of all manners of topics.¹⁴
• The comments were made at the start of the programme and were preceded with ‘One thing I want to say before we kick off with the show…’
• Davis stated what he personally would do to the protestors and was specific about putting a ‘tyre iron’ through their windows and wearing steel-capped boots.
• There was public interest in the protest (and consequent disruption) Davis referred to.
• The comments were critical about the form of the protest. They did not engage with the issues underlying the protest.
• Davis did not claim he was speaking on behalf of any group or collective. He also did not call for anyone to act in any way.
• Davis laughed during this segment.
• Davis’s comments were unchallenged.

[11]  Although talkback radio is recognised as an opinionated environment, and is granted some latitude,¹⁵ the comments occurred outside of the talkback portion of the programme and were not intended to stimulate any further discussion (given the programme is a sports talkback programme).¹⁶ The ordinary thresholds should therefore apply.

[12]  We also considered the wider context at the time of the broadcast:

• The ‘gridlock’ protest concerned COVID-19 restrictions, both existing at the time of the broadcast, and proposed substitutions to the restrictions following a change in frameworks.¹⁷
• Auckland was in ‘alert level 3, step 2’ at the time,¹⁸ restricting facilities allowed to open and outdoor gatherings to 25 people.¹⁹
• COVID-19 restrictions were protested around the world in a similar manner.²⁰
• Various protests of COVID-19 restrictions have involved, or ended in, violence.²¹

Relevant previous decisions

[13]  The decisions of the Authority issued over time provide guidance to broadcasters about what is acceptable under the broadcasting standards. We have previously dealt with complaints regarding radio hosts allegedly inciting violence:

• In Bhatnagar,²² a host expressed his support for workers in an industrial dispute, stating ‘look, I’m into militant action’ among other comments, which were challenged at the time by the co-host, and later retracted and explained by the host. The Authority found the comments were the host’s ‘vehemently expressed opinion’, constituted protest speech (which has high value), were challenged and did not reach the threshold of encouraging violence.
• In Cowsill,²³ the host asked for a caller’s reaction to running a screwdriver through a van branded with controversial slogans. The context (including the talkback environment, audience expectations, note it wasn’t on the host’s ‘list of things to do’, and the light-hearted tone) suggested the comments were not seriously advocating for listeners to damage vans.
• In Kean,²⁴ a radio panelist noted her ‘slightly murderous fantasies of putting’ a single-use plastic bag over the head of an individual escaping COVID-19 managed isolation and acknowledged ‘that’s not a rational response at all’. The Authority found the comments were satirical and intended to be humorous (important aspects of freedom of expression), supported by her acknowledgment.
• In Reekie,²⁵ the host said he’d ‘like the gangs’ to ‘look after’ the terrorist behind the 15 March attacks. The Authority found the comment was flippant in nature and did not go beyond audience expectations for the show. Viewers would not have taken the comment as a direction to break the law.
• In Singh,²⁶ the host made several comments to a caller in response to violent incidents in India, including ‘… it is a threat but I would call it a request. Wait for a year friends… be careful.’ The Authority upheld the complaint, acknowledging the comments were aimed at a specific community group, were specific in nature, and called for collective violent action. The comments went beyond audience expectations, even in a talkback radio environment, and were likely to incite or encourage violence or brutality.

Majority view (Susie Staley MNZM, John Gillespie)

[14]  After careful consideration, we, the majority, find the comments do not reach a threshold justifying regulatory intervention.

[15]  We acknowledge the complainant’s concern that, in our current climate with ‘so much violence reported in society’, broadcasters need to carefully consider the potential consequences of their language. We are conscious that if the comments were made in respect of the more recent protests (including the occupation at Parliament), heightened tensions nationwide would have certainly elevated the risk they presented.²⁷ However, broadcasts must be assessed in the context of the day they were broadcast.²⁸ In a different climate, the host may have chosen to use different language, or not have commented on the protest at all.

[16]  It was difficult to determine Davis’s tone in the broadcast, but we found the context pointed towards the comments being made in jest. The imagery created through the reference to Davis’s slides, and his memory of ‘football holiganism’ was inconsistent with a genuine intention to carry out the actions he was proposing. Neither did Davis call for anyone else to behave in the way mentioned. This is ‘the sort of ranting society is willing to allow and not take seriously’.²⁹ There is value in allowing people to freely express their opinions about issues such as a protest.

[17]  Although not conclusive, there is nothing before us to suggest the comments stimulated further unlawfulness during the protest.

[18]  Therefore, on balance, we do not find the complaint breached any of the standards complained of. We elaborate on our reasoning for each standard below.

Good Taste and Decency

[19]  Attitudes towards taste and decency differ widely and continue to evolve in a diverse society such as ours. Caution must therefore be exercised when considering matters of taste. The feelings of the particularly sensitive cannot be allowed to dictate what can be broadcast.³⁰ However, there are limits and the broad limit is a broadcast must not seriously violate community norms of taste and decency.³¹

[20]  The key issue we considered under this standard is whether Davis’s comments undermined widespread community standards or were likely to cause widespread undue offence or distress. In the context described above, we found they did not.

[21]  This finding is influenced in particular by our view listeners are likely to have understood the comments as humorous (rather than as a call to act). Humour is an important form of speech on which society places value.³² In addition, the protest was clearly a matter of public interest. The comments could be seen as commentary on the bounds of the right to protest. There is, as noted above, value in allowing discussion and debate about such issues. In our view, any potential harm in this context does not outweigh the broadcaster’s right to freedom of expression.

Law and Order

[22]  This standard is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes.³³ The key question is whether the broadcast would have had the effect of encouraging listeners to break the law, or otherwise promoting, glamorising or condoning criminal activity.³⁴

[23]  In reaching our finding, we refer to our decision in Bhatnagar where we stated:³⁵

In evaluating speech which is the subject of a complaint… we need to do more than assess the literal meaning of the words used. We need to look carefully at the context in which the words were used and then judge the likely consequences as best we can. If speech inciting violence is being seriously addressed to an audience that is likely to respond, then clearly that would amount to a breach of the standard. On the other hand, if words which on their face encourage violence but are delivered in a flippant or humorous way and would never be taken seriously, these would not amount to a breach. There is a wide area between these two points where speech will sometimes offend a standard and sometimes it will not.

[24]  The contextual factors identified in the preceding section,³⁶ and our reasoning under the good taste and decency standard, are also relevant to this standard. In particular we are conscious of:

• the audience’s likely interpretation of the comments as humorous
• the absence of any specific call to action
• the time of broadcast, November 2021, before the environment of heightened tension existing after COVID-19 vaccination and mandate protests had escalated into the occupation at Parliament and other sites around New Zealand.

[25]  In this context, we do not consider the ‘likely consequences’ of the comments as listeners being encouraged to break the law.

[26]  While appreciating the violent connotations of the comments, we also consider the comments were similar to those in Bhatnagar, amounting to Davis’s ‘vehemently expressed opinion’ rather than ‘serious advocacy of violence’.³⁷   

Violence

[27]  Violent content should be justified by context, and audiences should be adequately informed of likely content and warned if it is likely to disturb a significant number of listeners.³⁸ Further, broadcasters should exercise caution with content likely to incite or encourage violence or brutality.³⁹ Our inquiry here is whether the comments referred to violence, and if so, whether the comments were justified by their context or listeners were otherwise protected from their effect.

[28]  Again, in the context,⁴⁰ we consider the comments were unlikely to incite or encourage violence or brutality.

[29]  Although the comments were detailed, they also fall short of describing bloodshed or other ‘graphic’ content envisaged by the standard.

Minority view (Tupe Solomon-Tanoa’i)

[30]  While accepting the principles referenced by the majority, I reach a different conclusion regarding the nature and value of the comments.

[31]  It is well established the type of expression at issue may affect the level of public interest in a broadcast. For example, expressions dealing seriously with political issues or other topics that help govern ourselves and hold our leaders accountable will carry a high level of public interest.⁴¹ A subset of this category of speech is protest speech, which is important in a democratic society.⁴² It is more difficult to justify limiting such speech. The social benefit of upholding a complaint, and restricting freedom of expression, must outweigh the social loss caused by such an encroachment on the right.⁴³

[32]  When assessing the value of a particular broadcast or comment, it is therefore useful to consider the meaning the expression attempted to convey.⁴⁴ I note the Court of Appeal has suggested behaviour communicating nothing of meaning does not engage the right to freedom of expression as envisaged under the Bill of Rights Act 1990.⁴⁵

[33]  For the following reasons, I consider the comments were of low value:

• Firstly, I acknowledge the value in criticism of how the protestors chose to protest. As the majority has noted, it is important to debate the reasonable limits of the right to freedom of protest and to what extent it is demonstrably justified in a free and democratic society.⁴⁶
• However, it takes an unreasonable level of abstraction to conclude the comments on the whole constituted such a criticism. Any critique ended early in the comments.
• The comments were not satirical. Generally, satire is used as a tool to convey a political comment or to otherwise belittle a person / group for a purpose.⁴⁷ Davis did not engage with the reasons underlying the Gridlock protest,⁴⁸ but rather took the opportunity to vent regarding their expression of that right.
• The comments regarding putting a ‘tyre iron through’ the window, or buying a pair of ‘steel toe cap Dr Martens’ conveyed no meaningful message.

[34]  I also consider the broadcast had the potential to cause a deal of harm:

• The level of detail in the comments were likely to incite violence. Davis supported his criticisms with descriptions on how his frustration would be expressed, through the references to the tyre iron and Dr Martens. The broadcast included both motivation (frustration at the protest) and mechanism (tyre irons, Dr Martens and ‘good old football hooliganism’) providing support for like-minded listeners.
• Davis’s frustrations were expressed towards the gridlock protesters, providing a clear target for any further heightened emotions.⁴⁹
• As noted at paragraph [12], similar protests had ended in violence overseas. There was a reasonable risk of such speech inflaming the situation.⁵⁰

Standards raised

[35]  By reference to each of the standards raised, I conclude the value of the broadcast was outweighed by its potential harm:

• Good taste and decency: In the context and for the reasons outlined above, I consider the comments likely to cause widespread offence and to undermine widely shared community standards. In reaching this conclusion I am also conscious the comments were said at a time when people may not have been feeling safe and reflected fears communities held in light of overseas events (exacerbating the potential harm).
• Law and Order: the broadcast likely had the effect of promoting, glamorising, or condoning criminal activity, being violent action towards protesters. Although there was no specific call to arms, as in Singh¸ Davis’s coupling of his motivation (frustration at protesters inconveniencing others) along with a mechanism for action (eg tyre iron through windows) could incite others to act accordingly. Again, the wider context of overseas COVID-19 protests involving violence needs to be considered: the fuse was (and continues to be) shorter than usual.
• Violence: Although falling short of ‘graphic’ or other content traditionally envisaged by the violence standard, the broadcast likely incited or encouraged violence or brutality, as outlined above. The comments were not justified by their context, were gratuitous to the programme and were intentional on Davis’s part.

[36]  Accordingly, I uphold the complaint on all standards.

Conclusion

[37]  In conclusion, while there is agreement amongst us regarding the principles that govern our decision, there is a difference in position with respect to the application of these principles to this specific situation. As the majority of the Authority members have found the broadcast did not breach the standards, the complaint is not upheld.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
11 April 2022    

Appendix

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

1  Janet Curran’s formal complaint to NZME – 13 November 2021

2  NZME’s response to the complaint – 13 December 2021

3  Curran’s referral to the Authority – 28 December 2021

4  NZME’s response to the referral – 2 February 2022

5  Curran’s final comments – 3 February 2022

6  NZME’s final comments – 21 February 2022

¹ Tim Newman “Prison likely after man pleads guilty to throwing bricks at cars in Nelson” (8 November 2021) Stuff <stuff.co.nz>; “Driver cheats death after bottles drop from highway overbridge” The New Zealand Herald (online ed, 18 December 2017); The Nelson Mail “Police warn pranks risk lives” (22 July 2014) Stuff <stuff.co.nz>
² Parlane & Wilson and Mediaworks Radio Ltd, Decision No. 2015-009 at [14]
³ Citing Beban and NZME Radio Ltd, Decision No. 2019-063 at [13]
⁴ Singh and Radio Virsa, Decision No. 2019-081
⁵ Standard 1, Radio Code of Broadcasting Practice
⁶ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
⁷ Standard 5, Radio Code of Broadcasting Practice
⁸ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
⁹ Standard 4, Radio Code of Broadcasting Practice
¹⁰ Commentary: Violence, Broadcasting Standards in New Zealand Codebook, page 14
¹¹ Guideline 4a
¹² Guidelines 1a, 4b and 5b
¹³ The Radio Bureau “Brand profiles: Newstalk ZB” <trb.co.nz>
¹⁴ See John Cowan “Interview: Miles Davis” Newstalk ZB (online ed, 8 October 2018) where Davis said (jokingly) “the more that I can give opinions and upset people, the more topics and the broader the subjects, the more I enjoy it.”; and Vaimoana Tapaleao “Radio sports host Davis sad to be departing” New Zealand Herald (online ed, 25 November 2011) where Davis stated “I'm quite an obnoxious Pom who sometimes upsets people — I've been surprised how affectionate people have been."
¹⁵ Guideline 1c; Oluwole and NZME Radio Ltd, Decision No. 2021-023 at [13], Singh and Radio Virsa, Decision No. 2020-124 at [15]; and Te Whata and Mediaworks Radio Ltd, Decision No. 2020-141 at [13]–[14]; and see our previous research suggesting the environment provides some leniency: Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Matters of Opinion: Expectations and Perceptions of Standards in Talkback Radio” (1 June 2011) <bsa.govt.nz>
¹⁶ For an overview on why talkback radio is granted this leniency, see Parlane & Wilson and Mediaworks Radio Ltd, Decision No. 2015-009 at [14]
¹⁷ “Motorists warned to expect disruptions from anti-lockdown traffic protests” Te Ao Māori News (online ed, 13 November 2021)
¹⁸ Unite Against COVID-19 | Mā tātau katoa e ārai atu te COVID-19 “History of the COVID-19 Alert System” (22 February 2022) New Zealand Government | Te Kāwanatanga o Aotearoa <covid19.govt.nz>
¹⁹ James Ensor “Coronavirus: Alert level 3, step 2 rules for Auckland” Newshub (online ed, 10 November 2021)
²⁰ Abigail Censky “Michigan Stay-At-Home Order Prompts Honking, Traffic-Jam Protest" NPR (online ed, 15 April 2020); BBC “Coronavirus: Anti-lockdown car protest draws thousands” (online ed, 23 May 2020) (referring to the protest in Spain); The Associated Press “Israel tightens COVID-19 'green pass' rules, sparking protest” CTV News (online ed, 3 October 2021)
²¹ “Covid-19 Delta outbreak: Protests erupt over virus rules in Austria, Italy, Croatia” The New Zealand Herald (online ed, 21 November 2021); Rachel Treisman “Anti-Vaccine Protestors Clash With Police In Melbourne, Australia, For The 2nd Day” NPR (online ed, 21 September 2021), Elise Labott “Get Ready for a Spike in Global Unrest” (22 July 2021) Foreign Policy <foreignpolicy.com>; “Covid-19: 'Covidiots' protest against lockdowns across Europe” RNZ (online ed, 17 May 2020)
²² Bhatnagar and Radioworks Ltd, Decision No. 2012-045
²³ Cowsill and New Zealand Media and Entertainment, Decision No. 2016-031
²⁴ Kean and Radio New Zealand Ltd, Decision No. 2020-097
²⁵ Reekie and Mediaworks TV Ltd, Decision No. 2019-033
²⁶ Singh and Radio Virsa, Decision No. 2019-081
²⁷ RNZ “Parliament grounds 'reclaimed': Police operation ends 23-day protest” (online ed, 2 March 2022)
²⁸ See Barclay and Radio New Zealand Ltd, Decision No. 2019-003 at [14]–[16] for a similar finding regarding language broadcast prior to the 15 March attacks
²⁹ Bhatnagar and Radioworks Ltd, Decision No. 2012-045 at [22]
³⁰ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
³¹ As above
³² Taiuru and New Zealand Media and Entertainment, Decision No. 2015-045 at [7]
³³ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
³⁴ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
³⁵ Bhatnagar and Radioworks Ltd, Decision No. 2012-045 at [10]
³⁶ Guideline 5b
³⁷ Bhatnagar and Radioworks Ltd, Decision No. 2012-045 at [20] and [22]
³⁸ Commentary: Violence, Broadcasting Standards in New Zealand Codebook, page 14
³⁹ Guideline 4c
⁴⁰ Guideline 4b
⁴¹ Commentary: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
⁴² Bhatnagar and Radioworks Ltd, Decision No. 2012-045 at [7]
⁴³ Commentary: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
⁴⁴ See Attorney-General v Smith [2018] NZCA 24 at [46]
⁴⁵ Attorney-General v Smith [2018] NZCA 24 at [46]
⁴⁶ New Zealand Bill of Rights Act 1990, s 5
⁴⁷ For example, see Millar and Discovery NZ Ltd, Decision No. 2021-064 at [12] and Moir and Television New Zealand Ltd, Decision No. 2021-016 at [11] acknowledging the use of comedy and satire to create awareness about social issues
⁴⁸ To the contrary, he recognised their right to protest
⁴⁹ See Singh and Radio Virsa, Decision No. 2019-081 at [24] where targeting a specific section of the community was found to be an aggravating factor
⁵⁰ See Bhatnagar and Radioworks Ltd, Decision No. 2012-045 at [18] for a similar finding