Gregory and NZME Radio Ltd - 2017-081 (2 November 2017)
- Peter Radich (Chair)
- Paula Rose
- Te Raumawhitu Kupenga
- Robert Gregory
ProgrammeRadio Sport Weekender
BroadcasterNew Zealand Media and Entertainment
[This summary does not form part of the decision.]
Following the broadcast of a Labour campaign advertisement on Radio Sport Weekender, presenter Mark Watson commented: ‘I like Jacinda Ardern’s optimism; I just want to know how you pay for it all. That’s all I want to know… if it’s that easy, I think everybody would have done it by now.’ The Authority did not uphold a complaint that this comment amounted to alleged political editorialising, which was unacceptable and unprofessional. While listeners might not have expected the host to comment on political issues during a sports programme, this was an opinion open to the host to express, provided broadcasting standards were maintained. The Authority recognised the important role of the media during an election period, when political parties and leaders should expect to be subject to robust scrutiny, and found that Mr Watson’s comments did not result in the Labour Party, or its leader Ms Ardern, being treated unfairly. The Authority found the balance standard did not apply to the Radio Sport Weekender programme, as listeners would not expect to hear balanced or authoritative coverage of election issues during this talkback sports programme.
Not Upheld: Fairness, Balance
 Following the broadcast of a Labour campaign advertisement on Radio Sport Weekender, presenter Mark Watson commented:
I like Jacinda Ardern’s optimism; I just want to know how you pay for it all. That’s all I want to know… if it’s that easy, I think everybody would have done it by now.
 Robert Gregory complained that Mr Watson abused his privilege by commenting critically on an election advertisement immediately after it had played on air.
 The issues raised in Mr Gregory’s complaint are whether the broadcast breached the fairness and balance standards of the Radio Code of Broadcasting Practice.
 The item was broadcast 10.05am on 10 September 2017 on Radio Sport. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Overview – Election-related broadcast content
 This complaint does not relate to an election programme, but rather to the host’s comments. As such, it is a complaint about election-related content and as the election continues to be a matter of topical importance, we have determined it under our fast-track procedure. We thank the parties involved in this matter for their timely responses to our request for submissions.
Overview – The right to freedom of expression and political speech
 The starting point for our determination is to recognise the importance of the right to freedom of expression, and specifically the importance of political speech, which includes the right of broadcasters to impart ideas and information, and the public’s right to receive that information about party policies and election related issues. This is an important right in a democratic society and is particularly important in the lead up to a general election, when political parties and candidates are seeking to influence voters, and audiences are seeking information to enable them to make informed voting decisions.
 We may only interfere and uphold a complaint where to do so would impose a limitation on the right which is reasonably justified in a free and democratic society.1 In deciding whether any limitation on the right to freedom of expression is justified, we first consider the value and public interest in the broadcast, and then weigh that value against the level of actual or potential harm that might be caused by the broadcast. Given the importance of political speech and of enabling political discourse in the lead up to a general election, we will generally only interfere to limit the exercise of that speech when we consider that the harm is great.
Was any individual or organisation taking part or referred to in the broadcast treated unfairly?
 The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.2
The parties’ submissions
 Mr Gregory submitted that Mr Watson ‘took it upon himself’ to comment negatively in response to the Labour Party’s election campaign advertisement. This amounted to political editorialising, which was unacceptable and unprofessional during an election campaign.
 NZME submitted:
- Broadcasters are entitled to give their opinion in relation to election issues. While it may have been unusual for a host to discuss politics in a sports programme, Mr Watson had the right to impart his opinion. Such political discussion is particularly important during a general election in New Zealand.
- Talkback hosts are known for making provocative statements to stimulate robust debate. The Authority has recognised that it is common for talkback radio hosts to disagree with callers and contributors, sometimes in a forceful manner.
- Ms Ardern is a public figure and during an election period could expect some degree of public criticism and comment on party policies, actions and statements. Further, election advertisements were designed to attract attention and discussion and political parties and candidates could reasonably expect to be subject to criticism.
- Although it did not uphold Mr Gregory’s complaint, NZME nevertheless asked Mr Watson to think carefully about making any political statements during the programme.
 While Mr Watson’s comment was brief and made in the context of sports talkback radio, we consider that the ability for the media to comment critically on political parties and policy in the lead up to a general election is an important aspect of the right to freedom of expression in a democratic society.
 In the lead up to an election period, it is expected that politicians and political parties will be subject to intense public scrutiny in relation to their policies. Ms Ardern, and the wider Labour Party, could reasonably expect a high level of scrutiny, and some degree of criticism, in relation to the party’s policies discussed during the period, including in their campaign material.
 For this reason, while we acknowledge Mr Watson’s comments were critical, we do not consider this resulted in Ms Ardern or the Labour Party being treated unfairly. Mr Watson’s comment, even though it was made in the context of a sports programme, represented an opinion open to him to make, in response to the advertisement. In the unique environment of talkback radio, in which hosts sometimes use challenging or provocative language to encourage debate and a response from listeners, we do not consider these comments went beyond what could be expected by the Party during this period.
 In these circumstances, and taking into account the high public interest in political comment and public discourse around party policies, as well as the robust political environment in the lead up to the general election, we do not agree that the right to freedom of expression ought to be limited in this case.
 We therefore do not uphold the fairness complaint.
Was the item sufficiently balanced?
 The balance standard (Standard 8) states that when controversial issues of public importance are discussed in news, current affairs and 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. The standard exists to ensure that competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.
The parties’ submissions
 Mr Gregory submitted that Mr Watson should not have commented on the campaign advertisement, and that his comments amounted to political editorialising which was unacceptable.
 NZME submitted:
- The balance standard applies only to news and current affairs programmes. As this comment was made by Mr Watson during his talkback show, the standard did not apply.
- The Authority has previously recognised that talkback programmes ‘are analogous to programmes which are wholly based on opinions or ideas’, which are generally not considered news or current affairs. As such, listeners would not expect a balanced or authoritative examination of the issues.3
 A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.4
 The first question is whether this programme was news, current affairs or factual programming. Radio Sport Weekender is described as ‘3 hours of talk, opinion, reaction, preview and review of the weekend sport’.5 We do not consider it was a news or current affairs programme triggering the requirements of the balance standard. As the broadcaster has noted in its submissions, the Authority has previously found that talkback segments are analogous to ‘programmes which are wholly based on opinions and ideas’, which are generally not considered news or current affairs.6 In the context of a talkback programme focused on sport, audiences would not have expected in-depth or authoritative coverage of election issues and would have received Mr Watson’s passing comment as his opinion only.
 We therefore do not uphold this aspect of Mr Gregory’s complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
2 November 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Robert Gregory’s formal complaint – 8 September 2017
2 NZME’s response to the complaint –10 October 2017
3 Mr Gregory’s referral to the Authority – 11 October 2017
4 NZME’s response to the referral – 25 October 2017
1 See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.
4 Standard 8 – Balance and guideline 8a
6 See, for example: Matthewson and NZME Radio Ltd, Decision No. 2017-060; and Haines and NZME Radio Ltd, above, at  and Commentary, Standard 9 – Accuracy, Broadcasting Standards in New Zealand Codebook, page 18