BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1C) of the Broadcasting Act 1989
Talkback with Michael Laws – host compared the All Whites to disabled athletes and their win of supreme Halberg trophy to awarding disabled sports award – allegedly in breach of discrimination and denigration standard

Findings
Standard 7 (discrimination and denigration) – talkback radio a robust environment – host’s comments amounted to opinion – discussed legitimate issue – did not encourage discrimination against or denigration of disabled athletes or people with disabilities – not upheld

This headnote does not form part of the decision. 

Broadcast

[1]  During Talkback with Michael Laws, broadcast on Radio Live between 9am and 12pm on Friday 11 February 2011, the host discussed the win by the All Whites of the supreme Halberg trophy at the Westpac Halberg Awards for sporting excellence, and expressed his view that they did not deserve to win in light of their performance at the 2010 Football World Cup. The host criticised the attitude that he believed this reflected – that New Zealand celebrates those who have done “very well considering” rather than “winners... achievers... those who get to the top of the pinnacle”.

[2]  Throughout the programme, the host and a number of callers made the following comments with regard to disability sports and disabled athletes:

• “It’s sort of like the disabled sport award, giving it to the All Whites, the supreme Halberg trophy last night. It’s like watching a small child who you know will never be an athlete, complete a hundred metres and go, ‘Well done! That was a very good achievement,’ and then giving them the award although seven people in the same race finished ahead of them. It is in essence the special kids’ education award, but for some reason, because they did very well and we didn’t expect them to, we give them the top one.” (host)
• “...what message does it to send to sportsmen and sportswomen and young boys and girls in this country, when you don’t have to win to win? That you are doing really well considering your enormous disability.” (host)
• “...You’re comparing [the win] to giving a disabled sports award. I mean, my goodness me. We have disabled sports people, like rugby and world chess, we celebrate that too. And how dare you compare the All Whites to that. I think that is really rather rude...” (caller)
• “It’s almost like, I call it the Special Olympics syndrome, that we say gosh, haven’t they done well, those people who are mentally, you know, damaged... and we clap, we make a song and dance about it, and fair enough. But how we feel about those people and the fact that they make us feel good even though they will never achieve, is somehow judged as is good as, I don’t know, an athlete competing at the Olympic Games.” (host)
• “...this is the Special Olympics, why don’t we just give the Halberg Award to some special Olympian.” (host)
• “The Halberg Awards is not about exceeding our expectations. Like I said, if that’s the case then somebody out there with cerebral palsy who can run around a track a couple of times would win it every year”. (host)
•  “What about this gentleman who’s got no legs and he’s skiing and fell over and still went through to win? To me that there is commitment and dedication and guts...” (caller)
• “Listen I was agreeing with you right up until that last moment. I think if you’ve had your legs chopped off, you shouldn’t be in there at all. I mean, and I’ll tell you why, it’s because you’re not able to compete against, I mean, how can I put this nicely? Dammit, I’ll just say it. Disability games is all about people who are disabled, automatically it excludes everybody who’s able, doesn’t it? And even within disability sport, I mean it’s ludicrous disability sport – I think the Paralympians – it’s just crazy stuff, you’ve got different types of disability competing against each other. I mean the fact that that guy was able to fall down, get up again and still win shows that really there wasn’t a hell of a lot of competition in his field was there?” (host)
• “I think my point towards it Michael, is that people with disabilities, sometimes they seem to be doing better than people that are fully able.” (caller)
• “Well then have that competition. Put the disability people against the able people and then let them go. They’ll lose 99 times out of 100, but hey...” (host)
• “I’m not being nasty, it’s just the reality. It’s why somebody who is disabled could never win a Halberg Award – ‘yes you’ve done really, really well but you’ve got to remember that 95 to 96 percent of New Zealand could never actually participate in your sport because they’re not disabled.’” (host)
• “With the disabled athletes though, I disagree with you totally. I think that if you play within the rules of your sport and you beat everybody who’s there to beat, you win against all covers, that you can call yourself a world champion and hold your head up high and be considered for any award that goes.” (caller)
• “No, you see, but how can that be? I mean if I was to compete at either the Special Olympics or the Paralympics Games, it automatically excludes most of humanity from being able to compete against me doesn’t it... you’ve got to be disabled or intellectually handicapped to participate in them?” (host)
• “But that doesn’t mean that they have not achieved through the training, through the hard work of competing, within the rules, of those that are put in front of them...” (caller)
• “I’m not saying that, I’m not saying that at all. What I’m saying is that you cannot, though, expect those people to be competing for the same superior awards like the Halbergs against able-bodied athletes... ” (host)
• “... you can only beat who’s in front of you to beat. You can’t compete with an opposition who’s not there...” (caller)
• “Yes, but what I am saying is that you can’t take someone from a Paralympics Games or Special Olympics and put them against the Richie McCaws or the All Blacks of this world, and then say that it’s an equal contest for the overall award, you just can’t do that.” (host)

Complaints

[3]  Mike Freeman and Terri Purchase made formal complaints to RadioWorks Ltd, the broadcaster, alleging that the programme breached Standard 7 (discrimination and denigration).

Mr Freeman

[4]  Mr Freeman argued that the host’s comments with regard to disabled athletes denigrated people with disabilities. In particular, he noted that the host said that disability sports were “ludicrous” and should not be recognised alongside able-bodied pursuits, that it was “crazy” that paralympians were eligible for Halberg awards, and that “If you’ve had your legs chopped off you shouldn’t be there at all”.

Ms Purchase’s complaint

[5]  Ms Purchase considered that the host’s comments extended far beyond being controversial and thought-provoking to being “totally outlandish”, and sent a “terrible message to young children who are disabled and who are fighting to achieve their sporting goals”. The complainant was of the view that, in order to be successful, disabled athletes had to work harder than their able-bodied counterparts and faced the added obstacle of being treated differently because of their disabilities. She considered that their “tremendous driven spirit to succeed” should be “celebrated and encouraged not trampled on”. Ms Purchase requested a public apology from Mr Laws to be broadcast in MediaWorks news bulletins, as well as a personal apology to the skier with no legs who was referred to in the broadcast. She considered that Mr Laws should be severely reprimanded for his behaviour.

Standards

[6]  Mr Freeman and Ms Purchase nominated Standard 7 of the Radio Code of Broadcasting Practice in their complaints. Guideline 7a is also relevant. These provide:

Standard 7 Discrimination and Denigration

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.

Guideline 7a

This standard is not intended to prevent the broadcast of material that is:

• factual
• a genuine expression of serious comment, analysis or opinion; or
• legitimate humour, drama or satire.

Referrals to the Authority

[7]  Having not received a response from the broadcaster within the statutory timeframe, Mr Freeman and Ms Purchase referred their complaints to the Authority under section 8(1C) of the Broadcasting Act 1989. They maintained that the programme denigrated and discriminated against disabled athletes.

Broadcaster’s Response to the Authority

[8]  The broadcaster noted that, during Talkback with Michael Laws broadcast on 14 February, Mr Laws clarified his position on disability sports following an article published in the Herald on Sunday. It said that Mr Laws criticised the article as mischaracterising his comments from the 11 February broadcast, stating:

And somehow [my comments] got extrapolated into an attack on all disabled athletes... so I just thought I would explain that.

[9]  Turning to consider the 11 February broadcast subject to complaint, the broadcaster said that it had carefully considered whether Mr Laws’ comments amounted to “hate speech” or blackened the reputation of disabled athletes. It said that it had taken into account the context of the broadcast, including the tone of the comments and the exchange between the callers and host as part of an “established radio show infused with characteristically challenging comments from Michael Laws”.

[10]  The broadcaster considered that the host’s comments were “non-aggressive”, “conversational and relatively muted,” which contributed to a “rational debate rather than an unjustifiable ‘attack’ on a section of the community”. While it conceded that some listeners may have found the content “immoderate”, the broadcaster argued that the comments were clearly distinguishable as Mr Laws’ opinion. It noted that they were made in the context of a conversation with a caller who contributed a different view to the discussion and were followed by other callers who expressed similar support for disabled athletes. This highlighted the nature of the host’s comments as opinion, it said, and left listeners to make their own judgements about the “relevance or insightfulness” of his comments. The broadcaster contended that freedom of speech meant that “listeners are entitled to receive a range of views in a functioning democracy which enables them to consider and form their own views”.

[11]  RadioWorks asserted that Radio Live’s adult target audience was well aware of Mr Laws’ style in the talkback arena. While it acknowledged that Mr Laws’ style was not to everybody’s taste and that his comments were considered “provocative and upsetting” by some people, it was of the view that he was entitled to voice his opinion within the bounds of broadcasting standards.

[12]  The broadcaster concluded that while the comments could be construed as “critical” of a section of the community, they did not encourage an “adverse reaction by listeners”, or contain the required invective to be characterised as “hate speech”. Accordingly, RadioWorks declined to uphold the complaints that the broadcast breached Standard 7.

Authority’s Determination

[13]  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 complaints without a formal hearing.

[14]  Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community. The complainants argued that Mr Laws’ comments denigrated and discriminated against disabled athletes and people with disabilities in general. We consider that these groups constitute sections of the community to which the standard applies.

[15]  The term “denigration” has consistently been defined by the Authority as blackening the reputation of a class of people (see, for example, Mental Health Commission and CanWest RadioWorks¹). “Discrimination” has been defined as encouraging the different treatment of the members of a particular group to their detriment (see, for example Teoh and TVNZ²).  

[16]  It is also well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard (see, for example, McCartain and Angus and The Radio Network³).

[17]  On this occasion, Mr Laws made a number of comments that were critical of disabled athletes and disability sports. For example, he stated that disability sport was “ludicrous”, that it was “crazy stuff”, and that special Olympians were mentally “damaged”. He also made disparaging comments about a member of the New Zealand Paralympic Ski team, stating, “I think that if you’ve had your legs chopped off you shouldn’t be [competing] at all”.

[18]  While we agree that Mr Laws’ comments would be considered by some to be objectionable and provocative, we note that comments will not breach the prohibition against denigration or discrimination simply because they are critical of a particular group, because they offend people, or because they are rude.

[19]  In determining whether the comments reached the high threshold required for finding a breach of the discrimination and denigration standard, the wider context of the broadcast is relevant. On this occasion, the comments formed part of a discussion on talkback radio, which is generally recognised as a robust forum in which the host and callers express strong opinions on issues which provoke extreme viewpoints. They were made by a well-known host renowned for his challenging style and in the context of a discussion of a legitimate and relevant issue. We consider that, on this occasion, Mr Laws expressed his opinions in relatively moderate terms, and we agree with RadioWorks that his comments were balanced by callers who contributed opinions that were supportive of disabled athletes throughout the programme.

[20]  We recognise that allowing the free and frank expression of a wide range of views is a necessary part of living in a democracy. It is only where the expression of these views goes too far that Standard 7 will be found to have been breached. On this occasion, we consider that the views expressed by Mr Laws clearly came within the right to freedom of expression in section 14 of the Bill of Rights Act 1990.

[21]  Accordingly, we find that Mr Laws’ comments did not encourage the denigration of, or discrimination against, disabled athletes or people with disabilities in breach of Standard 7.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
8 July 2011

Appendix

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

1                  Mike Freeman’s formal complaint – 14 February 2011

2                 Mr Freeman’s referral to the Authority – 18 March 2011

3                 RadioWorks’ response to the Authority – 8 April 2011

4                 Mr Freeman’s Final comment – 8 April 2011

5                 RadioWorks’ Final comment – 6 May 2011

1                  Terri Purchase’s formal complaint – 16 February 2011

2                 Ms Purchase’s referral to the Authority – 28 March 2011

3                 RadioWorks’ response to the Authority – 27 April 2011

¹Decision No. 2006-030

²Decision No. 2008-091

³Decision No. 2002-152