BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
X105FM – hosts were talking to a man as he attempted to enter the grounds of Premier House where a barbeque for Prince William was about to take place – allegedly in breach of good taste and decency and law and order

Findings
Standard 2 (law and order) – broadcast did not encourage, promote, condone or glamorise criminal activity – not upheld

Standard 1 (good taste and decency) – contextual factors – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   At around 7pm on X105FM on 18 January 2010, one of the station’s employees, Warwick Slow, gained entry to Premier House by jumping over the fence, ahead of a barbecue for Prince William. As he attempted this, the hosts of the radio station were speaking to him via cellphone and discussed how he was going to offer sausages and garlic bread. Mr Slow said that he had jumped over a fence and was moving through bush and then into Premier House. He could be heard telling someone at Premier House that he had sausages and bread, while the other hosts laughed. The phone call was terminated when his phone was confiscated by security.

[2]   The hosts then tried to phone him back but were unsuccessful, and talked and laughed about the fact that they could not believe Mr Slow had made it onto the property and into the building, because if he had been in another country “he would’ve been shot”.

Complaint

[3]   Alex de Villiers made a formal complaint to X105FM, the broadcaster, alleging that the broadcast breached standards relating to good taste and decency and law and order, and in particular guidelines 1a and 2a to those standards.

[4]   Mr de Villiers argued that, by broadcasting Mr Slow breaking in, the broadcaster had endorsed and committed a criminal offence. He maintained that Mr Slow had breached “the security and integrity of Premier House”. Mr de Villiers alleged that the New Zealand police had indicated that future Royal visits were “likely to be affected by the actions of Mr Slow”.

[5]   The complainant requested a public apology and that X105FM be fined the maximum amount allowed.

Standards

[6]   Standards 1 and 2 and guidelines 1a and 2a of the Radio Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Guideline 1a

Broadcasters will take into account current norms of good taste and decency, bearing in mind the context in which any language or behaviour occurs and the wider context of the broadcast e.g. time of day, target audience.

Standard 2 Law and Order

Broadcasters should observe standards consistent with the maintenance of law and order.

Guideline 2a

Caution should be exercised in broadcasting items which explain the technique of crime in a manner which invites imitation.

Broadcaster's Response to the Complainant

[7]   X105FM stated that the station, including its employees, associates and directors “were not charged with a criminal offence nor committed a criminal act in any capacity whatsoever”. It considered that Mr de Villiers’ claims that Mr Slow’s actions had serious ramifications with regard to future Royal visits and the security of Premier House was “purely based on hearsay”, and said that it was not aware of any official stance taken by authorities on this matter.

[8]   In addition, the broadcaster said, Prince William’s visit was of high public interest and “we make no apologies for providing media coverage of it albeit not to your particular taste”.

[9]   X105FM concluded that the broadcast had not breached any broadcasting standards and it declined to uphold the complaint.

Referral to the Authority

[10]   Dissatisfied with the broadcaster’s response, Mr de Villiers referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He argued that, despite not being charged with a criminal offence, the actions of the radio station breached broadcasting standards.

Broadcaster’s Response to the Authority

[11]   X105FM reiterated its belief that it had not breached broadcasting standards, and said that it had done everything possible to endorse compliance with the standards. It considered that Mr de Villiers’ complaint had no substance and was based on opinion and hearsay. The broadcaster said that it made no apologies for media coverage of “such a high profile public event” and that it believed “his interpretation is third party and subsequent media driven and perhaps [he] did not even hear the entire broadcast”.

[12]   X105FM said that its station was entertainment and personality driven, and targeted at 18- to 35-year-olds “with an emphasis on FUN which also under the local license criteria has an obligation to ensure Wellington content is included, this occasion being one”.

Complainant’s Final Comment

[13]   Mr de Villiers repeated his argument that the actions of the radio station would have a long-term effect on future Royal visits. He considered that “in the current state of terrorist activities throughout the world the actions of X105FM were... of the worst kind” and forced police to expend resources.

Authority's Determination

[14]   The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 2 (law and order)

[15]   The Authority has previously stated that the intent behind the law and order standard is to prevent broadcasts that encourage listeners to break the law, or otherwise promote, glamorise or condone criminal activity (see, for example, Taylor and TVWorks¹).

[16]   Mr de Villiers’ concern was that the broadcaster and Mr Slow had committed a criminal offence. We cannot assume the role of a criminal court and determine whether a crime has been committed. Accordingly, we take a common-sense approach in determining whether a broadcast has promoted, glamorised or condoned criminal activity.

[17]   We are of the view that the broadcast consisted of a prank which was intended to be humorous and to entertain listeners. While the actions of the station and of Mr Slow may have been irresponsible, we do not consider that the broadcaster encouraged listeners to act similarly or otherwise promoted criminal activity. Listeners were informed that his actions had consequences; he was apprehended by security guards and questioned by police.

[18]   Accordingly, we decline to uphold the Standard 2 complaint. However, we would like to remind broadcasters to exercise care when orchestrating stunts or pranks which have potentially serious consequences for staff and bystanders.

Standard 1 (good taste and decency)

[19]   When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• the time of broadcast at 7pm

• the station’s target audience of 18- to 35-year-olds

• expectations of regular listeners.

[20]   The Authority has previously stated (e.g. Yeoman and TVNZ²) that standards relating to good taste and decency are primarily aimed at broadcasts that contain sexual material, nudity, violence or coarse language. The broadcast complained about did not contain any material of this kind.

[21]   Taking into account the contextual factors and particularly the station’s adult target audience, we find that the broadcast did not stray beyond current norms of good taste and decency in breach of Standard 1.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
6 July 2010

Appendix

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

1.           Alex de Villiers’ formal complaint – 19 January 2010

2.          X105FM’s response to the complaint – 23 February 2010

3.          Mr de Villiers’ referral to the Authority – 19 March 2010

4.          X105FM’s response to the Authority – 31 May 2010

5.          Mr de Villiers’ final comment – 4 June 2010

¹Decision No. 2010-008

²Decision No. 2008-087