Haines and NZME Radio Ltd - 2017-039 (17 July 2017)
- Peter Radich (Chair)
- Paula Rose
- Te Raumawhitu Kupenga
- David Haines
ProgrammeLeighton Smith Show
BroadcasterNew Zealand Media and Entertainment
Channel/StationNewstalk ZB # 2
[This summary does not form part of the decision.]
During a talkback segment on the Leighton Smith Show, the host discussed the recent legal personhood granted to the Whanganui River. The complainant, Mr Haines, phoned in to the programme to discuss the issue. After a two-and-a-half minute conversation, Mr Smith responded that it was ‘stupidity to give [the Whanganui River] equal status as a person. Now get off the phone,’ and made comments about Mr Haines self-identifying as Māori. The Authority did not uphold a complaint that Mr Smith’s statements were derogatory and insulting to Mr Haines and to Māori people. While the Authority acknowledged that Mr Smith’s comments could be seen as dismissive and disrespectful, in the context of the robust talkback radio environment, they did not reach the level necessary to constitute unfair treatment or to encourage discrimination or denigration. Mr Haines was afforded a fair and reasonable time to put forward his views. Mr Smith’s disagreement in response was typical of the talkback genre, in which hosts often express contentious or strong views in the interests of generating debate, and of his well-known forceful style. The Authority noted that the free and frank expression of opinions is an important aspect of the right to freedom of expression, and is valued in our society. Mr Smith was entitled to express his opinion, even if it was critical or if others disagreed, and it did not reach a level which warranted the Authority’s intervention.
Not Upheld: Fairness, Discrimination and Denigration, Balance
 During a talkback segment on the Leighton Smith Show, the host discussed the recent legal personhood granted to the Whanganui River. The complainant, David Haines, phoned in to the programme to discuss this issue. During the phone call, the following exchange occurred with the host:
Mr Haines: Instead of these trite conversations about taking the river to court, which is absolute stupidity…
Mr Smith: It is equal stupidity to give it equal status as a person. Now get off the phone.
 Subsequent to the phone call, Mr Smith referred to Mr Haines and made the following comments:
- ‘Yes, I got agitated. Because [Mr Haines] was mounting an argument that he was convinced about, and that was… what [he does not] understand is, writing that into the English legal code is nonsense. I could say he was brainwashed, but I’m not going to. He’s entitled to his opinion.’
- ‘What was my previous caller’s name? David, was it? I think he has entered into the current trend of self-identification and I think he actually believes he is a Māori, in spite of his protestations about his ancestry. I think he really thinks… he’s self-identifying as a Māori, and a radical one, you might say.’
 Mr Haines complained that Mr Smith’s comments were derogatory and insulting to him and to Māori people, and discounted his views.
 The issue is whether the broadcast breached the fairness, discrimination and denigration, and balance standards as set out in the Radio Code of Broadcasting Practice.
 The item was broadcast on Newstalk ZB on 5 April 2017. 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 of findings and freedom of expression
 The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. The right we have to express ourselves in the way we choose, and to receive information, is a fundamental freedom, but it is not an absolute freedom. It is nevertheless an important right, and we may only interfere and uphold complaints where the limitation on the right is reasonable and justified in a free and democratic society.1
 We consider the broadcast in question, a talkback radio segment, had high value in terms of the right to freedom of expression. The free and frank expression of opinions is an important aspect of this right, and is fundamental to the operation of our democratic society. Talkback radio provides a forum for this exchange of opinions to occur.
 Our task is to weigh the value of the programme (and the importance of the expression) against the level of actual or potential harm that might be caused by the broadcast. Here, Mr Haines has submitted that the item caused harm through Mr Smith’s unfair treatment of him, and to Māori people generally, by Mr Smith’s ‘derogatory’ and ‘insulting’ attitude towards Māori cultural views.
 We recognise the importance of the issues discussed during the item, and that they are of particular personal significance to Mr Haines. We agree that talkback hosts ought to be professional and respectful when dealing with callers, including those who hold different views. However, for the reasons set out below, in the context of talkback radio, we have not identified harm arising from the broadcast that would outweigh the broadcaster’s right to freedom of expression and the audience’s right to receive the ideas broadcast. Mr Haines was afforded a fair and reasonable time to put forward his views, and Mr Smith’s response to him did not reach the level necessary to constitute unfair treatment, or to encourage discrimination against, or the denigration of, Māori people.
Was Mr Haines treated unfairly?
 The fairness standard (Standard 10) 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 Haines submitted:
- Mr Smith said to him, ‘You’re not a Pakeha, you’re a Māori’, which was a derogatory and dismissive statement ‘rubbishing all I had said’.
- Mr Haines advised that his descendants were of Ngāpuhi and Ngāi Tahu ancestry, which ‘makes my family very much a New Zealand family and to be treated in a derisory manner simply because I disagreed with the tenor of the show was insulting to me and Māori’.
 NZME submitted:
- Talkback is a robust environment and hosts are known for making provocative statements to stimulate robust debate. Callers are expected to understand the nature of the programme when choosing to participate.
- Mr Haines was afforded time to put forward his views, which he did so calmly.
- Mr Smith’s critique was of Mr Haines’ views, not of Mr Haines as a person. Even then, Mr Smith’s reference to the idea of giving a river personhood as ‘stupid’ was only given after Mr Haines had stated that discussions about ‘taking a river to court’ are ‘stupid’.
- Mr Smith’s later comments that Mr Haines possibly self-identified as Māori and held Māori cultural beliefs, were not negative and would not have created an unduly negative impression of him for listeners.
 We acknowledge that Mr Smith’s termination of the conversation could be seen as harsh. Some may find Mr Smith’s comments regarding Mr Haines’ self-identification as a ‘radical Māori’, and that Mr Haines was ‘brainwashed’, to be disrespectful and insensitive, and as having racial overtones.
 That being said, the Authority has consistently recognised that talkback radio is a ‘robust and opinionated environment, in which the host and callers often engage in heated conversations and express strong or provocative views, and in which the threshold for a finding of unfairness may be higher’.3 Callers should reasonably expect that by choosing to enter and participate in this forum, they may receive an adversarial response if the host does not share their views.4
 In this case, we do not consider Mr Smith’s treatment of Mr Haines amounted to personal abuse or an attack, which may result in a breach of the fairness standard. While Mr Smith evidently disagreed with Mr Haines’ views, this is typical of the talkback radio genre and in particular the Leighton Smith Show, in which the host has a forceful style that is well known to listeners.
 Mr Haines was afforded a fair and reasonable time to put forward his views during the item – over two-and-a-half minutes – which he did so in an articulate and passionate manner. In our view, Mr Haines did not come across negatively during the item and he was not treated unfairly.
 For these reasons, we do not uphold the fairness complaint.
Did the broadcast encourage the denigration of, or discrimination against, Māori people as a section of the community?
 The objective of the discrimination and denigration standard (Standard 6) is to protect sections of the community from verbal and other attacks. The standard 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.
 ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment. ‘Denigration’ is defined as devaluing the reputation of a particular section of the community.5 It is well established that a high level of condemnation, often with an element of malice or nastiness, is required to conclude that a broadcast encouraged discrimination or denigration in contravention of the standard.6
The parties’ submissions
 Mr Haines submitted:
- ‘It is as if, to [Mr Smith], speaking in favour of the validity of the Māori right to hold a world view based on Māoritanga, [implied] I and Māori are somehow less intelligent’.
- Mr Smith’s statements were at best paternalistic, ‘but in reality, I consider them to be… made… from an ingrained sense of superiority of Pakeha over Māori. Racism.’
 NZME submitted:
- Speech that offends, or is rude, is not determinative of a breach of this standard.
- Mr Smith was clearly critical of those who hold the same cultural views as Mr Haines. However, taking into account the language used (that the argument is ‘nonsense’), the fact the discussion took place during a talkback show, that the host in question is well known for having particularly robust views, and the host was giving a genuine expression of opinion, the necessary level of malice for finding a breach was not demonstrated.
- Regarding Mr Smith’s later comments, these were not negative, nor could be said to devalue the reputation of Māori people.
 We recognise that some listeners may have found Mr Smith’s attitude dismissive of certain Māori cultural views. However, we do not consider that his expression of these views met the high threshold necessary to find a breach of this standard. Talkback hosts often put forward contentious or strong views in the interests of generating debate and discussion. Mr Smith’s comments were clearly not in the category of hate speech, nor vitriolic towards Māori people. He was entitled to present his opinion on the issue of granting legal personhood to the Whanganui River, even if it was critical or if others disagreed with him.
 We therefore do not find a breach of Standard 6.
Did the item discuss a controversial issue of public importance which required the presentation of alternative viewpoints?
 The balance standard (Standard 4) 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 Haines submitted that ‘the whole tenor of the programme was so archaically “white”’ and put forward a Pakeha view of ‘Māoritanga’.
 NZME submitted that the balance standard only applies to news and current affairs programmes, and it did not apply to this talkback programme.
 We do not consider this particular segment amounted to news or current affairs which triggered the requirements of the balance standard. The item was clearly a talkback segment and was analogous to ‘programmes which are wholly based on opinions or ideas’, which are generally not considered news or current affairs.7 While the host and callers discussed topical issues, listeners would not have expected a balanced or authoritative examination of these issues, in the context of the talkback environment.
 Accordingly, we do not uphold this aspect of the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
17 July 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 David Haines’ formal complaint – 5 April 2017
2 NZME’s response to the complaint – 28 April 2017
3 Mr Haines’ referral to the Authority – 12 May 2017
4 NZME’s response to the Authority – 17 and 30 May 2017
5 Mr Haines’ final comments – 9 June 2017
6 NZME’s final comments – 19 June 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.
2Commerce Commission and TVWorks Ltd, Decision No. 2008-014
3 For example, see LQ and New Zealand Media and Entertainment, Decision No. 2016-059 at paragraph .
4 As above
5 Guideline 6a
6 Guideline 6b
7 Commentary on Standard 9 – Accuracy, Broadcasting Standards in New Zealand Codebook, page 18