Esler and Mediaworks Radio Ltd - 2017-068 (16 November 2017)
- Peter Radich (Chair)
- Paula Rose
- Te Raumawhitu Kupenga
- Brent Esler
ProgrammeAfternoons with Wendyl Nissen
BroadcasterMediaWorks Radio Ltd
Channel/StationRadio Live # 3
[This summary does not form part of the decision.]
An interview was broadcast on Afternoons with Wendyl Nissen with a journalist, about an article she had written regarding the upcoming perjury trial of the secret witnesses who testified in David Tamihere’s murder trial. During the interview the journalist discussed the discovery of one victim’s body, saying, ‘you think of a body turning up… it’s really… bones. The trampers who found [the] body actually stepped on it before they saw it.’ Ms Nissen replied: ‘So there was a crunch’, adding, ‘– sorry to be disgusting’. A complaint was made that this comment was ‘disgusting, disrespectful’ and ‘in poor taste’. The Authority did not uphold the complaint under the good taste and decency standard, finding that Ms Nissen’s immediate apology after the comment, and other contextual factors, mitigated any potential harm or distress caused by the comment, and it did not reach the high threshold necessary to find a breach of the good taste and decency standard.
Not Upheld: Good Taste and Decency
 An interview was broadcast on Afternoons with Wendyl Nissen with a journalist, about an article she had written regarding the upcoming perjury trial of the secret witnesses who testified in the 1990 trial of David Tamihere for the murder of Swedish tourists Urban Höglin and Heidi Paakkonen. During the interview the journalist spoke about the discovery of Mr Höglin’s body. She noted the extent of decomposition and contextualised how difficult it can be to locate a body, particularly in rugged terrain, saying:
You think of a body turning up… it’s really… bones. The trampers who found Höglin’s body actually stepped on it before they saw it.
 In response to this Ms Nissen said (laughing): ‘So there was a crunch’, adding, ‘– sorry to be disgusting’.
 Brent Esler complained that this comment was ‘disgusting, disrespectful’ and ‘in poor taste’. He said that the entire interview was biased towards Mr Tamihere being innocent and that he was disgusted at the discussion of the idea that Mr Tamihere was framed for prior rape convictions. Mr Esler said he was left feeling ‘absolutely disgusted’, and found the segment as a whole ‘unbalanced and disrespectful’.
 The issue raised in Mr Esler’s complaint is whether the broadcast breached the good taste and decency standard of the Radio Code of Broadcasting Practice.
 The segment was broadcast at 12.20pm on 25 July 2017 on RadioLIVE. The members of the Authority have listened to a recording of the interview subject to complaint and have read the correspondence listed in the Appendix.
Did the comment threaten current norms of good taste and decency?
 The purpose of the good taste and decency standard (Standard 1) is to protect audience members from listening to broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards. In a radio context this is usually in relation to offensive language, sexual material, or, sometimes, violence.1
The parties’ submissions
 Mr Esler submitted:
- The joke made by the host was the ‘most disgusting, disrespectful, poor taste thing I have ever heard on the radio’.
- To imply that Mr Tamihere was innocent and framed by the police due to prior rape convictions was ‘disgusting’.
- The entire segment was ‘unbalanced and disrespectful to this case, the entire New Zealand justice system and to the murdered’.
- MediaWorks should make a formal apology to the murder victims and their families.
 MediaWorks submitted:
- Relevant contextual factors in this case are:
- RadioLIVE targets an adult audience
- In-depth discussion and interviews are a regular feature of Afternoons with Wendyl Nissen and listeners would be accustomed to the frank exchange of opinion, recognising that they might not always agree with the views expressed
- Ms Nissen followed her ‘crunch’ remark with an apology and it was clear that the interviewee disapproved of the comment
- The remark was a spur-of-the-moment quip which, while off-colour, was not made with malicious intent.
- It accepted Ms Nissen’s ‘crunch’ remark was in poor taste and MediaWorks apologised for the offence this broadcast caused to Mr Esler.
- It also accepted the remark was startling in the context of a serious discussion of a murder case. However, it was not intended to be malicious and did not threaten standards given the remark appeared in a broadcast which regularly features robust current affairs discussion.
- The broadcast did not claim that Mr Tamihere was framed. Rather, the broadcast examined certain aspects of the police investigation and David Tamihere’s trial which were interesting, controversial or relevant to the perjury case about which the journalist had written.
 When we consider a complaint alleging a breach of broadcasting standards, our starting point is to recognise the importance of the right to freedom of expression, including both the broadcaster’s right to impart ideas and information and opinions, and the audience’s right to receive that information. We may only interfere and limit the right to freedom of expression where we consider the potential or actual harm that may be caused by the broadcast outweighs the importance of that right. In this case, Mr Esler has submitted that Ms Nissen’s comment was disgusting and disrespectful, with the potential to cause significant harm considering the sensitive nature of the interview’s subject matter and the ongoing nature of the Tamihere case.
 Context is crucial in determining whether a broadcast threatens community norms of taste and decency, and a broadcast’s context may, in some cases, minimise its harmfulness.2 The following contextual factors are relevant in the present case:
- The segment was broadcast at 12.20pm.
- Afternoons with Wendyl Nissen operates within the talkback radio environment where robust and challenging conversation is commonplace and expected.
- Both RadioLIVE and this programme are targeted at an adult audience who recognise the programme may contain sometimes controversial or provocative content.
- RadioLIVE describes Wendyl Nissen as ‘a straight-talking journalist with a wealth of experience from editing top-selling magazines, producing ground-breaking television documentaries and engaging with talkback radio callers without batting an eyelid’.3
- The host’s comment was preceded by a serious discussion of recent developments in the Tamihere case.
- The comment was brief in the context of the segment as a whole, which ran for approximately eight minutes.
- The comment was made without malice and represented a clear departure from the factual and investigative tone of the rest of the interview.
- Ms Nissen apologised immediately after making the comment and acknowledged it was ‘disgusting’.
 Having regard to these factors, we do not consider that Ms Nissen’s comment reached the high threshold necessary to find that it threatened current norms of good taste and decency, or that the level of potential harm or offence justifies limiting the important right to freedom of expression in this case. In the context of an eight-minute item this was a brief, spur-of-the-moment comment reacting to the journalist’s description of the manner in which Mr Höglin’s body was found. Ms Nissen immediately apologised and recognised the comment was ‘disgusting’, which mitigated its potential offensiveness. In our view this fleeting comment did not undermine the remainder of the interview or take it beyond what was acceptable in the context of this programme and audience expectations.
 For these reasons, we do not uphold the good taste and decency complaint.
 For completeness we note that Mr Esler also raised concerns about the segment and the discussion of Mr Tamihere’s guilt or innocence being biased and unbalanced. These are concerns which may have been better addressed under the balance standard (Standard 8). However, as the balance standard was not raised in the original complaint to the broadcaster we are not able to consider it.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
16 November 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Brent Esler’s formal complaint – 25 July 2017
2 MediaWorks’ response to the complaint – 22 August 2017
3 Mr Esler’s referral to the Authority – 4 September 2017
4 MediaWorks’ confirmation of no further comment – 8 September 2017
1 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
2 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12