Green and MediaWorks Radio Ltd - 2015-087 (3 March 2016)
- Peter Radich (Chair)
- Paula Rose
- Te Raumawhitu Kupenga
- Peter Green
ProgrammeTalk with Sean Plunket
BroadcasterMediaWorks Radio Ltd
Channel/StationRadio Live # 3
Leigh Pearson declared a conflict of interest and did not participate in the determination of this complaint.
[This summary does not form part of the decision.]
During Talk with Sean Plunket, the CEO of the National Foundation for the Deaf called in to discuss captioning on television, and especially the perceived problem of the lack of captioning of broadcasts of the 2015 Rugby World Cup. Mr Plunket argued, ‘You can actually watch the rugby with the sound off, you can see – they’ve got big numbers on their backs – you can see what’s happening’ and asked, ‘Really is this such a problem?’ After further discussion, he stated, ‘You do have a hearing problem because you’re not actually engaging in a conversation’. The Authority did not uphold a complaint that Mr Plunket’s comments amounted to bullying and denigrated the deaf community. Taking into account freedom of expression and the context of talkback radio and this particular broadcast, Mr Plunket’s comments did not reach the high threshold necessary for a finding that the broadcast encouraged discrimination or denigration, nor did they go so far as to breach standards of good taste and decency.
Not Upheld: Discrimination and Denigration, Good Taste and Decency
 During Talk with Sean Plunket, the CEO of the National Foundation for the Deaf called in to discuss captioning on television, and especially the perceived problem of the lack of captioning of broadcasts of the 2015 Rugby World Cup.
 Mr Plunket, in a way which is typical of talkback radio hosts, took a position contrary to that of his caller. He argued, ‘You can actually watch the rugby with the sound off, you can see – they’ve got big numbers on their backs – you can see what’s happening’, and asked, ‘Really is this such a problem?’ The caller pressed on with the position she was taking. A point was reached when Mr Plunket stated, ‘You do have a hearing problem because you’re not actually engaging in a conversation’. When the caller asked, ‘What was that?’ Mr Plunket repeated his comment about her having a hearing problem. He then hung up on the caller.
 Peter Green complained that it was ‘unacceptable’ for Mr Plunket to ‘bully callers based on their disabilities’ and that the broadcast ‘encouraged denigration of the deaf community’.
 The issue for us is whether the broadcast breached the discrimination and denigration and good taste and decency standards of the Radio Code of Broadcasting Practice.
 The discussion was broadcast on Radio Live at approximately 10.30am on 25 September 2015. We have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Nature of the programme and freedom of expression
 In considering any complaint that comes before us, the importance of the right to freedom of expression must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards.1 We are only able to limit the broadcast and the right to freedom of expression – both the broadcaster’s right to impart information and the audience’s right to receive it – if it is justified and reasonable to do so.
 Mr Plunket's talkback show was part of a regular and longstanding talkback format on Radio Live. We have noted in previous decisions that this is territory where excessive language and inappropriate comments are often heard from listeners calling in and sometimes from the radio host.2 To stimulate reactions and responses the talkback host sometimes uses extravagant language and intentionally ‘goes over the top’. Provocative and extravagant language has also been used by previous radio hosts on this programme.3
 Here, the caller phoned in to Mr Plunket’s show and introduced herself as follows:
I’m the CEO for the National Foundation for the Deaf, and I’m also on the International Federation for Hard of Hearing board globally and with human rights responsibilities... I’m hard of hearing and I’ve got a lot of knowledge [about] the Convention on the Rights of People with Disabilities, and we have got this major issue with the lack of captioning on the Rugby World Cup games for people like me, and under Article 9 of the Convention – which New Zealand signed in 2008 – we have been assured accessibility, and there’s no captioning, we can’t access the Rugby World Cup games.
 An exchange followed between the caller and Mr Plunket:
Mr Plunket: Now [caller], you have come right out of left field at me, but this is interesting, I do think it’s interesting, thank you for calling and raising this issue. How many people do have a hearing disability in New Zealand?
Caller: The World Health Organisation says one in six people have some type of hearing loss and they estimate by 2050 it will be one in four. So we’re looking at hundreds of thousands of New Zealanders who want to use captioning.
Mr Plunket: Ok, so have you had hundreds of thousands of New Zealanders contact you beefing about this?
Caller: We have hundreds contacting us, yes.
Mr Plunket: Hundreds?
Caller: Well, probably more than hundreds when you think about it.
Mr Plunket: ...They’ve all contacted you to complain about this?
Caller: Yes, there’s a number of Facebook pages up running about it... we’ve all got blogs going about it. I talked to the Prime Minister about it two days ago and Mojo Mathers raised it in the House yesterday asking, you know, ‘What’s going on?’ We had captioning in the last Rugby World Cup series when it was put on by TVNZ, but it’s SKY TV that are not giving such. In the UK...
Mr Plunket: Well hang on, what would the captions be? Because actually... you can watch the rugby with the sound off, you can see – they’ve got big numbers on their backs – you can see what’s happening.
Caller: Someone like me for instance, I don’t actually understand who’s in what number, but I listen, and I understand what’s going on in the game by reading what’s going on.
Mr Plunket: Look... why don’t you learn what the positions are and who’s in what position? What don’t you just learn who wears what number on their back, you wouldn’t have to – look, to be honest, a lot of us turn the commentary off because it’s so rubbish.
Caller: Yeah, but you have the choice. We don’t.
Mr Plunket: Really, is this such a problem?
Caller: Yes, it is a really serious problem.
Mr Plunket: What, that you don’t hear [the commentators] flapping on, you don’t hear the inane sideline comments?
Caller: That’s the Rugby World Cup, but in fact it’s across all television. We’ve got really low rates of captioning across all television... It’s not just rugby, it’s right across everything. In the UK it’s legislated and in the US it’s legislated...
 Mr Plunket and the caller then discussed the commercial viability or otherwise of captioning for broadcasters. At times the two talked over each other. The conversation ended with the following exchange:
Mr Plunket: You do have a hearing problem because you’re not actually engaging in a conversation.
Caller: What was that?
Mr Plunket: You do have a hearing problem because you’re not engaging in a conversation.
Caller: Yes, I do have a hearing problem, you’re right.
 Mr Plunket then terminated the call, and said:
I think we’d heard all we could from [the caller] and not really got a word in edgeways. Look, I would hate to have a disability like that, a hearing disability. Is it really such a big deal? Has really hundreds of people complained to [the caller] about this? Or is it just, ‘Let’s jump on the Rugby World Cup bandwagon to push our point’... I’m not being hardarse here. I’m also saying it is pretty simple to watch rugby with the sound turned off and know what’s going on. Big letters on the back of those jerseys, big letters... I don’t know, am I being mean? What do you think?... I’d like to hear from you if you are one of those hundreds of people who did complain.
Did the broadcast encourage discrimination against, or the denigration of, people with a hearing disability as a section of the community?
 The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, 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.
 The term ‘denigration’ has consistently been defined by the Authority as blackening the reputation of a class of people.4 ‘Discrimination’ has been consistently defined as encouraging the different treatment of the members of a particular group, to their detriment.5
 As we have said many times in previous decisions, all programmes which are the subject of complaints need to be assessed in the context in which they are broadcast. We have also said that talkback radio is a particular broadcasting genre where robust give-and-take is to be expected and is necessary to maintain the flow of exchanges.6 Talkback radio is an example of freedom of expression in action and it serves a valuable public purpose, giving some who may not otherwise have any opportunity to have a voice, a forum where their views can be expressed. While views expressed may sometimes be extreme or unpleasant, the value of freedom of expression is such that in our society we must pay the price for keeping the conduits of expression open and free. Nevertheless there are of course limits even in talkback radio and the question here is whether those limits were reached.
 Mr Green argued that it was ‘unacceptable for [Mr] Plunket to encourage denigration of the deaf community with this sort of insult’. He said that, as the caller was speaking in her capacity as the CEO of the National Foundation for the Deaf, it was ‘not unreasonable to assume that the impact of [Mr] Plunket’s insult would be felt by the section of the community she represents’.
 Mr Green also included a letter from the caller (responding to his questioning how she felt about what had happened) in which she stated that Mr Plunket’s behaviour towards her left her ‘stunned’ and ‘incredibly humiliated’. She described how the interaction was a ‘ghastly experience’ that made her feel ‘ashamed’ and ‘violated’.
 MediaWorks emphasised the context of the discussion, namely the nature of the talkback environment and Mr Plunket’s well-established style. It acknowledged that ‘Sean Plunket’s strongly held opinions could be considered extreme by some listeners.’ It also recognised that his comment ‘you do have a hearing problem’ was ‘indelicate and may have been offensive to some listeners (particularly those unfamiliar with Plunket’s particular brand of broadcasting)’. However, it said, ‘there is a significant level of expectation that talkback hosts will on occasion make narrow, one-sided, hyperbolic or controversial statements “for effect” and to generate discussion and debate’. In terms of whether the broadcast could be said to encourage discrimination or denigration, MediaWorks argued that, as Mr Plunket’s comment was ‘directed at a specific individual in relation to... her conduct’, it did not ‘devalue the reputation of a class of people’. It said that this comment was intended as a ‘darkly humorous quip – delivered in [Mr Plunket’s] typically abrasive style – in an attempt to gain ascendancy in an argument’. MediaWorks argued that the comment did not ‘carry a high level of invective’, was not ‘hostile or abusive’ and was not intended to ‘ridicule [the caller] on the basis of her disability or malign people with hearing problems’. It also said that ‘it was clear that Mr Plunket was not seriously suggesting that [the caller’s] failure to acknowledge his point of view was because she had a hearing problem’. It concluded by saying that ‘the contention that Mr Plunket implicitly approved the ridicule of persons with disabilities is a very flimsy inference to take’.
 At the outset, we note that there are elements of the complaint, for example that Mr Plunket was ‘bullying’ the caller, that lend themselves to a consideration of fairness principles and whether the caller was treated fairly. The fairness standard (Standard 6) has not been raised here, so we are not able to consider it. However any assessment we make of the manner in which the caller was treated, including the host’s language and tone, will be relevant to our assessment of whether the broadcast as a whole encouraged discrimination or denigration of the deaf community.
 The question for us is whether Mr Plunket’s comments moved beyond being a robust exchange with a talkback caller to the point where they could be seen as devaluing the reputation of other people with hearing disabilities, or encouraging the different treatment of that group of people, to their detriment. To get to a point where we are able to find that a breach of the discrimination and denigration standard has occurred we need to be satisfied that what happened in this broadcast would likely have hurt or disadvantaged people with hearing disabilities generally.
 In previous decisions we have said that it is unacceptable for a broadcasting host to mock and make fun of any person or persons on the basis of a disability. In Ashurst and 10 Others and Television New Zealand Ltd we upheld complaints about a television presenter’s reference to a singer as ‘retarded’.7 We said that ‘if a person discriminates against or denigrates a single person on account of that person’s characteristics which are common to others, then other people who have those features or characteristics are also subject to discrimination or denigration’. We did not think that the comments in that case were acceptable as humour, satire or otherwise. In Adams and 4 Others and Television New Zealand Ltd we upheld discrimination and denigration complaints against a broadcaster where a television presenter’s comments were directed at a former Governor-General who was said not to look like or sound like a New Zealander.8 Then in Adams, Godinet and Parsons and Television New Zealand Ltd we expressed strong disapproval of a television commentator’s insults of a racist kind against a foreign politician.9 So it can be seen that there is a line which must not be crossed. However, it will also be appreciated that this is not a bright line but rather one which has to be found in each case. Sometimes the line is easy to find but in other cases, and this is one, it is not so simple.
 In this case there were broadly two sets of comments made by Mr Plunket. In the first set, he was expressing his reaction to the caller’s suggestion that it was a serious problem that no captioning was provided on rugby games during the Rugby World Cup. He made comments such as:
- ‘...you can watch the rugby with the sound off, you can see – they’ve got big numbers on their backs – you can see what’s happening...’
- ‘Look... why don’t you learn what the positions are and who’s in what position? What don’t you just learn who wears what number on their back... to be honest, a lot of us turn the commentary off because it’s so rubbish...’
- ‘Really, is this such a problem?’
 The second lot of comments involved Mr Plunket saying twice to the caller, ‘You do have a hearing problem because you’re not actually engaging in a conversation.’
 Taking a broad view, we can understand how the first set of comments could be seen to apply to all people with a hearing disability, as a section of the community. The suggestion that could be drawn from the comments was that these people should take extra steps to understand the game of rugby, while, as the caller pointed out, others ‘have a choice’ whether or not to pay attention to the sports commentary offered and to use it as a means to follow the game. The caller indicated she had received many complaints about the absence of captioning on rugby games and also that she personally prefers to follow what’s happening through the commentary.
 In terms of the second set of comments, it is clear to us and we think it would have been clear to all listeners that when the radio host was referring to the caller as having a ‘hearing problem’ he was saying that the caller had a listening problem, rather than bullying her on the basis of her disability. By this he meant, and he made it reasonably clear, that in his view the caller was presenting a position in a determined way and did not have her mind open to engage with the radio host in a debate about his contrary position. It may be that Mr Plunket would not have made this particular comment, in this language, had the caller not had a hearing disability. However even if we found that the caller herself had become the subject of denigration on the basis of this comment, that would not be enough because this standard is not directed at preventing harm to individual persons, which, as we have said, is a matter of fairness.
 The fact that some of Mr Plunket’s comments may be seen as extending to a section of the community is not sufficient in itself to conclude that the broadcast as a whole breached the discrimination and denigration standard.10 It is well-established that in light of the importance of the right to freedom of expression, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard. Usually, some element of malice or nastiness is required to make such a finding.
 We have considered this complaint and the broadcast very carefully and overall we do not think that Mr Plunket was being malicious or vitriolic, or that his comments reached the high threshold necessary for us to intervene.
 In the broadcast Mr Plunket was expressing his views in a forceful, provocative manner. Some listeners may have found this to be abrasive and rude, and his treatment of the caller questionable. However, that Mr Plunket was abrupt or rude in his handling of the conversation is not sufficient in itself to breach standards and ultimately we do not think he crossed the line of what is acceptable. This was talkback where some rough and tumble is what is expected and what is accepted. This is not a place where only soft, genteel and elegant exchanges are to be expected. Callers going on to talkback radio ought reasonably to expect that they may have a rough ride at the hands of the radio host or other callers. This caller was an articulate communicator who was determined to express her point of view. The radio host adopted a sceptical and questioning tone in response, and neither would yield. The radio host, using his control, terminated the conversation by hanging up and then getting in the ‘last word’. Clearly, if the radio host formed the opinion that the caller was not willing to engage in a debate, then the radio host had the freedom to express that view, and that would not have been surprising to regular listeners of talkback.
 Nor do we think, on the basis of this exchange, that reasonable listeners would have been encouraged to malign people with a hearing disability or treat them differently. Mr Plunket encouraged others to phone in and contribute to the debate and we think it likely that those who did phone in would have reflected both sides of the argument. We know that most people who suffer from disabilities do not like to be treated with special sensitivity and none will enjoy being patronised. We need to be careful not to put up artificial shields around people with disabilities such that they feel treated as being weak or different. But at the same time we have to be careful to ensure that people with vulnerabilities are not hurt by having their disabilities targeted for ridicule or abuse. There are many factors to be put into the balance and inevitably, different people will have different views as to where the ultimate balance lies. The view that we have reached is that while the host’s comments may have been construed as insensitive and he may have handled the conversation better, the point has not been reached where we should intervene and say broadcasting standards have been breached.
 For these reasons, we do not uphold the complaint under Standard 7.
Did the broadcast threaten current norms of good taste and decency?
 The good taste and decency standard (Standard 1) is usually concerned with broadcasts containing sexual material, nudity, coarse language or violence.11 However the Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.12
 Mr Green’s concern was that it was ‘unacceptable’ for Mr Plunket to ‘bully callers based on their disabilities’. For similar reasons to those we have outlined in relation to Standard 7, we have reached the view that the content of this broadcast did not threaten standards of good taste and decency. Context is all-important in a consideration of this standard, which here includes the robust nature of the talkback environment, the radio station’s adult target audience, audience expectations of this particular Radio Live slot and expectations of Mr Plunket. While Mr Plunket’s approach to this conversation may not have been to everyone’s liking, we do not think the general audience would have been unduly offended or distressed by the broadcast.
 We therefore do not uphold the Standard 1 complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
3 March 2016
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Peter Green’s formal complaint – 26 September 2015
2 MediaWorks’ response to the complaint – 21 October 2015
3 Mr Green’s referral to the Authority – 27 October 2015
4 MediaWorks’ response to the Authority – 26 November 2015
5 Mr Green’s final comments – 7 December 2015
6 MediaWorks’ final comments – 21 December 2015
1 See sections 5 and 14 of the New Zealand Bill of Rights Act 1990
2 For example, see Parlane & Wilson and MediaWorks Radio Ltd, Decision No. 2015-009
4 See, for example, Mental Health Commission and CanWest RadioWorks, Decision No. 2006-030
5 For example, Teoh and Television New Zealand Ltd, Decision No. 2008-091
6 For example, see Parlane & Wilson and MediaWorks Radio Ltd, Decision No. 2015-009
10 E.g. McCartain and Angus and The Radio Network, Decision No. 2002-152
11 Turner and Television New Zealand Ltd, Decision No. 2008-112
12 Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November 2006)