BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint alleging Kerre McIvor’s comments regarding cyclists breached the discrimination and denigration, fairness and balance standards. The comments did not refer to a recognised section of society as required by the discrimination and denigration standard and would not have reached the high threshold required to breach the standard. The individuals referred to in the broadcast were not treated unfairly, and the fairness standard does not apply to cyclists as a group. The balance standard was not breached as listeners were likely to have understood the comments as coming from Ms McIvor’s perspective.

Not Upheld: Discrimination and Denigration, Fairness, Balance

The broadcast

[1]  On Kerre McIvor Mornings broadcast on 31 May 2021 on Newstalk ZB, Kerre McIvor discussed the recent ‘Liberate the Lane’ protest and her experience as a driver sharing the road with cyclists, including the following comments:

There was, well, what seemed like thousands of the hooers coming from everywhere. If you've seen the mice in Australia, you know, the hordes of mice sweeping through the farms, if you can imagine mice in lycra and on bikes. That's what they look like. The swarm of them heading towards the park from every street in every road…Lucky I wasn't ten minutes later setting off, had that been so, I would not have been able to make the appointment because the cyclists whipped up by that perennial spinning wheeler Julie Ann Genter went from a lawful rally at Point Erin Park, to a law breaking ride across the Harbour Bridge, backing up traffic for hours on State Highway One…I have no problem with cycling proponents wanting a way to get from North Shore City to Auckland City….But right now I don't feel like ever again being supportive of cyclists or cycling lanes. There is absolutely no difference between these law breaking, entitled, demanding gits and the law breaking entitled gits on motorbikes who take over the roads and the highways when they feel like it… Bike Auckland chair Barb Cuthbert addressed the protesters after they returned from the bridge crossing. Ooh, how did you like our lane? I bet they were ever so thrilled with their smug lycra-clad moment of daring-do and bravery, and taking on the police…Seriously, what difference is there between those tits and the tits on motorcycles…you do not care who's inconvenienced while you make your point.

The complaint

[2]  Cycling Action Network (CAN) complained the broadcast breached broadcasting standards for the following reasons:

Discrimination and Denigration

• The comparison between cyclists and mice had ‘malicious intent’ and was ‘setting the stage to dehumanise cyclists.’
• ‘…this dehumanising language, often pitched as “funny”, is particularly dangerous when used by influential public figures, such as radio hosts.’
• ‘Ms McIvor also claims…that cyclists are worse than patched gangs…Gang membership is a primary criminogenic factor that negatively impacts an individual's ability to desist from offending successfully, and it is the opposite of what cycling represents. Cycling is a convenient and healthy means of transportation that is better for physical and mental health and reduces the overall stress of individuals’.
• ‘Drawing a comparison between cyclists and patched gang members is a blatant attack against cyclists aimed towards devaluing the reputation of cyclists and promoting negative views against this section of the New Zealand community.’
• ‘Ms McIvor's sustained use of abusive names (i.e. tits and huas), vermin metaphors (i.e. mice and rats), and gang analogies are the type of dehumanising language that increases levels of violence and aggression towards cyclists.’

Fairness and balance

• ‘Cyclists and cycling advocacy groups were not given reasonable opportunity to present their views, and they were not portrayed truthfully and fairly’.
• ‘Cycle lanes, urban planning and issues related to cycling, in general, are matters of public importance, and they are controversial. It is imperative to ensure that all significant points of view of cycling and urban planning issues are given reasonable opportunity to be presented. When they are, it should be done in a fair manner, where the referred or portrayed organisation is given a fair and reasonable opportunity to comment before the broadcast/publication.’
• Ms McIvor …only referenced cycling advocates such as Julie Anne Genter and Barb Cuthbert in the same dehumanising, denigrating and provocative manner as she described cyclists. Fair and reasonable opinion was not given to these individuals, or any cycling advocates for that matter, including allowing pro-cycling listeners to voice their views on the talkback show’.

The broadcaster’s response

[3]  NZME did not uphold the complaint for the following reasons:

Discrimination and denigration

• Cyclists are not a recognised section of the community, so the standard does not apply.
• ‘In any event, we do not consider that the comments of the host…contain the required level of invective to constitute a breach of this standard. The host was critical of those who cycled over the Harbour Bridge for flouting the law.’
• ‘Following receipt of your complaint we checked with the host who confirmed that she used the word ‘hooers’ in the sense given in the Macquarie Dictionary, that is to mean “fools who drive like maniacs”.’
• ‘We strongly reject your claim that the host comments can be viewed as similar to Nazi propaganda vis à vis Jews. Nor did the host claim that “the cyclists are worse than patched gangs”; rather the host drew a comparison between those cyclists who had flouted the law on this occasion and motorcyclists generally who break the law, a group that is not limited to motorcycle-riding gang members.’

Balance

• The comments were made during the Kerre McIvor Mornings talkback show which is not subject to the balance standard.
• If the balance standard does apply, ‘we do not believe that the segment can be viewed as lacking in balance due to the fact this story had been widely covered in other programming other the same period, such that “significant points of view” were presented in “in other programmes within the period of current interest”.’

Fairness

• The fairness standard only applies to individuals or organisations, and ‘is not intended to prevent criticism of public figures’.
• ‘In the course of this segment, the only persons referred to by name were Green Party MP Julie Anne Genter and Bike Auckland Chair Barb Cuthbert and we do not consider that either was treated unfairly’.

The standards

[4]  The fairness standard¹ requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.² It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.

[5]  The discrimination and denigration standard³ states that broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief. ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment.⁴ ‘Denigration’ is defined as devaluing the reputation of a particular section of the community.⁵

[6]  The balance standard⁶ states when controversial issues of public importance are discussed in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.⁷ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁸

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.

Discrimination and denigration

[9]  This standard applies only to ‘recognised sections of the community’, which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.⁹ Cyclists are not a ‘recognised section of the community’ to which the standard applies, as they are they are not a homogenous group identifiable under one of the grounds listed in the standard.

[10]  In any event, the relevant comments did not involve the high level of condemnation necessary for a finding of discrimination and denigration.¹⁰

Fairness

[11]  The fairness standard is concerned with protecting against undue harm to the dignity and reputation of any person or organisation taking part or referred to in a programme.¹¹ The broadcast referred briefly to Green MP Julie Anne Genter and Barb Cuthbert from cycle advocacy group Bike Auckland. However, these comments did not go beyond the robust criticism expected of politicians, or spokespeople for a controversial cause, and comment from Ms Genter or Ms Cuthbert was not required in the context of an opinion piece.

[12]  ‘Cyclists’ do not amount to an organisation for the purposes of the standard. The Cambridge Dictionary defines ‘organisation’ as ‘a group of people who work together in an organized way for a shared purpose’. Previously we have applied the standard to established groups, such as political parties,¹² lobby groups,¹³ government agencies,¹⁴ businesses¹⁵ and organised protest groups.¹⁶

[13]  In comparison to these groups, cyclists are a loose category of people with a shared activity but do not necessarily work together in an organised way. There are organisations made up of cyclists or based around cycling, but none of these were criticised in the broadcast. Accordingly, the fairness standard does not apply.

Balance

[14]  For the balance standard to apply, the subject matter of the broadcast must be an issue of ‘public importance’, it must be ‘controversial’ and it must be ‘discussed’ in a news, current affairs or factual programme.¹⁷

[15]  We consider the item discussed a controversial issue of public importance, and note controversial topics commonly feature in talkback radio. The ‘Liberate the Lane’ protest regarding the Auckland Harbour Bridge was a significant event, with a government plan to build a cycling and walking bridge costing $685 million revealed five days after the protest¹⁸ (and later scrapped¹⁹).

[16]  However we do not consider it was necessary for this item to include further perspectives for the following reasons:²⁰

• Kerre McIvor Mornings is a talkback show where topics are presented from the host’s perspective.
• A reasonable listener is likely to have interpreted the content as commentary and statements of Ms McIvor’s opinion.
• Listeners can be expected to have been aware of other views and news items around the issue given its topicality and importance.²¹

[17]  Accordingly, the omission of any further perspectives was unlikely to have left the audience misinformed.

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

Susie Staley
Acting Chair
10 November 2021    

Appendix

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

1  Cycling Action Network’s complaint to NZME – 24 June 2021

2  NZME’s decision on the complaint – 22 July 2021

3  CAN’s referral to the BSA – 16 August 2021

4  NZME’s comments on the referral – 13 September 2021

5  CAN’s final comments – 24 September 2021

6  NZME’s confirmation of no further comments – 8 October 2021

¹ Standard 11 of the Radio Code of Broadcasting Practice
² Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
³ Standard 6 of the Radio Code of Broadcasting Practice
⁴ Guideline 6a
⁵ As above
⁶ Standard 8 of the Radio Code of Broadcasting Practice
⁷ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁸ As above
⁹ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
¹⁰ Guideline 6b
¹¹ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
¹² See for example Morton and Radio New Zealand Ltd, Decision No. 2020-150 (20 April 2021) or Wilding and Discovery NZ Ltd, Decision No. 2020-161
¹³ See for example Andrews & Murray and Radio New Zealand Ltd, Decision No. 2020-153
¹⁴ See for example Davis and Radio New Zealand Ltd, Decision No. 2019-061
¹⁵ See for example Real Nappies Ltd and Television New Zealand Ltd, Decision No. 2020-148
¹⁶ See for example Honour the Maunga and Radio New Zealand Ltd, Decision No. 2020-049
¹⁷ Guideline 8a
¹⁸ Todd Niall, “New $685 million cycling and walking bridge for Auckland's Waitematā Harbour” Stuff (online ed, Auckland, 4 June 2021)
¹⁹ Todd Niall, “Government scraps $785m cycle and walking bridge across Auckland harbour” Stuff (online ed, Auckland, 2 October 2021)
²⁰ Commentary: Balance, Broadcasting standards in New Zealand Codebook, page 18
²¹ News video “‘Liberate the Lane’ protest group rides bikes onto Harbour Bridge” NZ Herald (online ed, Auckland, 30 May 2021); Todd Niall “$51m spent on axed Auckland harbour cycling bridge project, residents 'in limbo'” Stuff (online ed, Auckland, 5 October 2021); Sunday Morning “Live cross to the Auckland 'Liberate the Lane' rally” RNZ (online ed, Auckland, 30 May 2021)