BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Radio Tarana – Saheri Programme – comments made about presenter of another programme broadcast by Radio Tarana – Aaj Juma Hai – comments unfair and derogatory

Findings
Principle 5 – no tape available – decline to determine

Principle 7 – no tape available – decline to determine

This headnote does not form part of the decision.

Summary

[1] A difference in religious observance as to whether, after a Muslim person dies, dates and times needed to be fixed for making supplications was aired on programmes broadcast on Radio Tarana in November 2002. On the Saheri programme, a Muslim priest stated that dates and times did not need to be fixed. The contrary view was advanced on the Aaj Juma Hai programme broadcast on 15 November, sponsored by the New Zealand Milad Committee and presented by Mr Mujeeb Sayed Hydrabadi. An announcer on the next Saheri programme, Mr Shaiyaz Mohammed, broadcast on 16 November, expressed the opinion that the first speaker was correct.

[2] Mujeeb Sayed Hydrabadi, the presenter of Aaj Juma Hai, complained to Radio Tarana (NZ) Ltd, the broadcaster, that the announcer on the Saheri programme, when giving his opinion, had been unfair and derogatory and had accused him, among other things, of being religiously illiterate.

[3] In response, Radio Tarana said that the derogatory comments had in fact been made by the complainant when he referred to the priest’s opinion given earlier. Consequently, it added, the Aaj Juma Hai programme had been cancelled.

[4] Dissatisfied with Radio Tarana’s decision, Mujeeb Sayed Hydrabadi referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to determine the complaint.

Decision

[5] The Authority has sought, unsuccessfully, a tape of the Saheri programme broadcast on Radio Tarana on 16 November 2002. The members of the Authority have read a transcript (translated into English) of part of the Aaj Juma Hai programme (broadcast on 15 November) and a transcript (also translated) of part of the Saheri programme (broadcast on 16 November).

The Programme

[6] The Saheri Islamic programme was broadcast on Radio Tarana on 16 November 2002. The presenter, Mr Shaiyaz Mohammed, referred to some comments in the programme, Aaj Juma Hai, broadcast on Radio Tarana on 15 November 2002. The programme, Aaj Juma Hai, is a religious programme designed to cater for the needs of Sunni Muslims in New Zealand and has been running weekly on Radio Tarana for some six years. It is sponsored by the New Zealand Milad Committee Inc. and, for the past three years, has been presented by Mr Mujeeb Sayed Hydrabadi.

The Complaint

[7] In a Saheri programme broadcast earlier in November 2002, Mr Shaiyaz Mohammed (the announcer) had interviewed a Muslim priest, a Mr Ishaq, who said in response to a question that, after a Muslim person dies, there was no need to fix dates and times for making supplications for the deceased.

[8] The President of the New Zealand Milad Committee Inc. (Mr Mushtaq Sheikh) reported that he had advised Radio Tarana that the priest’s observation was wrong and, unless the matter was clarified, it would be dealt with on the forthcoming Aaj Juma Hai programme. It was not clarified, the President continued, and the Aaj Juma Hai programme broadcast on 15 November included comment, approved by the Committee and presented by Mr Hydrabadi, that Mr Ishaq’s comments were not applicable to members of the Milad Committee.

[9] The President then stated that in a Saheri programme broadcast on the morning of 16 November, the announcer, Mr Shaiyaz Mohammed "blew the whole thing out of proportion" and attacked Mr Hydrabadi for his comments.

[10] Mr Hydrabadi complained to Radio Tarana, initially about the "defamatory remarks made on air by Radio Tarana". He later complained that the remarks breached the broadcasting standards in that, by not describing his views accurately, the broadcaster had failed to deal with him justly and fairly.

[11] In the initial letter to Radio Tarana, Mr Hydrabadi noted that the New Zealand Milad Committee had sought a copy of the tape of the broadcast complained about. His solicitor also asked for a copy of the tape.

The Standards

[12] While the broadcaster has not nominated a standard against which the complaint has been assessed, it follows from the correspondence that Principles 5 and 7 of the Radio Code of Broadcasting Practice are the relevant standards. Principles 5 and 7, and relevant Guideline, read:

Principle 5

In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.

Principle 7

In programmes and their presentation, broadcasters are required to be socially responsible.

Guideline

7a  Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:

i) factual; or

ii) a genuine expression of serious comment, analysis or opinion; or

iii) by way of legitimate humour or satire.

The Referral to the Broadcasting Standards Authority

[13] As Mr Hydrabadi did not receive a reply from Radio Tarana, he referred the complaint to the Broadcasting Standards Authority.

The Broadcaster’s Response to the Authority

[14] Radio Tarana was advised of the referral. In its response the Authority, pointed out that one of the two letters sent to it by Mr Hydrabadi’s solicitors had been addressed incorrectly.

[15] Radio Tarana explained that the programme, Aaj Juma Hai which was sponsored by the New Zealand Milad Committee, had been running for six years and had been hosted by a number of people, including Mr Hydrabadi. It recalled that some two years previously a broadcast, hosted by Mr Hydrabadi, had included some remarks derogatory of another religion. Radio Tarana stated that it had broadcast an apology and had been assured by the Milad Committee that there would be no further similar incidents. However, during the broadcast on 15 November 2002:

Mr Hydrabadi again made derogatory remarks against a sect of Islamic believers, namely Mr Ishaq. This was during the month of Ramadan and caused chaos in the Muslim Community.

[16] In response to a request from the President of the Milad Committee, Radio Tarana said that it had supplied him with the tapes of all the relevant broadcasts between 15 and 17 November. The tapes, it added, were sought urgently and as a result the original tapes were provided. The President had guaranteed to look after them. Radio Tarana noted that it had listened to the tapes beforehand as part of its own investigation and they were all of "top standard".

[17] Radio Tarana advised that it had sent a letter to the Milad Committee in which it required that Mr Hydrabadi be removed as host "due to the breach of station rules regarding derogatory remarks he had made the 2^nd time in 3 years".

[18] On receipt of an earlier letter from Mr Hydrabadi’s solicitor, Radio Tarana said, it had assumed that the Milad Committee was involved with Mr Hydrabadi in conducting legal proceedings and, by telephone, the President of the Milad Committee had been asked to pass the recordings of the programme on to Mr Hydrabadi’s solicitor.

The Complainant’s Response to the Authority

[19] Through his solicitor, Mr Hydrabadi maintained that the incident which was said to have happened two years previously had nothing to do with the current situation.

[20] Mr Hydrabadi denied making derogatory remarks on 15 November about another sect of Islamic believers or Mr Ishaq. His solicitor noted that he had listened to a tape of Mr Hydrabadi’s comments on 15 November and that "no derogatory remarks were made at that stage". In addition, the complainant denied making the comments about Mr Ishaq which the broadcaster said that he had made. Mr Hydrabadi said those remarks were made by Mr Shaiyaz Mohammed against him.

[21] Regarding the tapes, the complainant said he understood that they were with the Milad Committee and he was prepared to arrange for them to be forwarded to the Authority.

Further Correspondence

[22] The President of the New Zealand Milad Committee Inc., Mushtaq Sheikh, wrote to the Authority in response to Radio Tarana’s letter of 23 February.

[23] The broadcaster, the President wrote, was incorrect to suggest that Mr Hydrabadi was involved in any form of investigation some three years ago, as the Committee had never been informed of any investigation.

[24] In his letter to the Authority, Mr Sheikh summarised what he regarded as the issues:

"Mr Ishaq used Radio Tarana’s airwaves to talk about a religious issue which was not applicable to the Sunni Muslims including the members of New Zealand Committee.

The announcer was asked to clarify the issue which he did not do.

Mr Hydrabadi while presenting the Aaj Juma Hai programme clarified the issue for the benefit of the members of New Zealand Committee.

The announcer of Radio Tarana acted as a judge and announced that Mr Ishaq was correct in what ever he said.

The announcer condemned Mr Hydrabadi’s comments and also made defamatory remarks against him.

New Zealand Milad Committee tried to resolve the matter with Robert Khan [of Radio Tarana] but Mr Khan would not give audience to New Zealand Milad Committee.

Tape recordings of the programmes were not made available to resolve the dispute. My information is that the programmes were not recorded.

Without giving a chance to explain, Mr Hydrabadi was banned from talking on the air.

Mr Hydrabadi’s solicitors complained to the Broadcasting Authorities.

Radio Tarana terminated the Aaj Juma Hai programme of New Zealand Milad Committee that has been running for 6 years.

Radio Tarana took this action and terminated the programme while the matter is still pending."

[25] The President concluded:

We urge the authorities to hear the tapes in order to establish the truth. If Radio Tarana is unable to supply the tapes, New Zealand Milad Committee will be able to assist through its members with some if not all of the recordings.

The Broadcaster’s Response to the Authority

[26] Radio Tarana made ten points in its letter:

Mr Hydrabadi, it said, was the offender in the earlier incident and the broadcaster was dissatisfied that another breach had occurred.

Radio Tarana’s contract with the Milad Committee for the broadcast of Aaj Juma Hai required the host to follow the station’s rules which forbade the presentation of political or opinionated material. Aaj Juma Hai, it wrote, meant "today is prayer day" but Mr Hydrabadi admitted he had been preaching about the rights and wrongs of society.

As it appeared that Mr Hydrabadi had not told his solicitor about the incident which had occurred two years previously, Radio Tarana suggested that the solicitor speak to Mr Azad of the Milad Committee. He was aware, Radio Tarana continued, of Mr Hydrabadi’s remarks at that time.

Radio Tarana requested a copy of the tape of Mr Hydrabadi’s broadcast held by his solicitor.

The broadcaster questioned the solicitor’s assurance that the tape contained no derogatory comments as those comments were made in a language which needed "scripted translation".

Further, the solicitor’s letter implicitly admitted that Mr Hydrabadi had made derogatory comments.

Radio Tarana again asked for a copy of Mr Hydrabadi’s tape to confirm that he had not made any statements "against another priest".

Radio Tarana said that the tapes released to the Milad Committee included the broadcasts to which the complaint related. He added that affidavits to confirm could be provided.

Radio Tarana maintained that Mr Hydrabadi’s solicitor’s letters were sent to two different box numbers and it sought confirmation that the faxes, which the solicitor said had been sent, had in fact been sent as it had moved premises at that time.

While it was considered strange that Mr Hydrabadi had not had access to the tapes sent to the Milad Committee, as he was a member of the Committee, the broadcaster said it was acceptable for his solicitor to uplift the tapes from the Committee.

Further Correspondence

[27] In view of the comments made by the parties about the tapes of the broadcasts on 15 and 16 November, the Authority sought copies of the tapes from Mr Hydrabadi’s solicitor. It also sought affidavits from Radio Tarana and the New Zealand Milad Committee confirming the information which had been in the correspondence.

[28] The New Zealand Milad Committee provided material including affidavits, the tapes it had received from Radio Tarana and a translated transcript.

[29] The Managing Director of Radio Tarana, Robert Khan, provided an affidavit in which he maintained that the information forwarded earlier to the Authority was correct. He also asked for an independent translation of the tape provided by the New Zealand Milad Committee.

[30] In response, the New Zealand Milad Committee reiterated that the tapes supplied to it by Radio Tarana did not contain the programmes sought.

[31] Radio Tarana maintained that the transcript of part of Shaiyaz Mohammed’s comments on the Saheri programme on 16 November showed no abusive remarks. In contrast, Mr Hydrabadi’s comments were defamatory.

[32] Radio Tarana observed:

All informal attempts to solve this matter have been unsuccessful and my effort to find an amicable solution has been fruitless.

The Complainant’s Final Comment

[33] Expressing concern that the broadcaster was delaying the process by raising "irrelevant" matters, the complainant stated that Radio Tarana had failed to comply with its obligation to retain a recording of the broadcast complained about. Further, in view of the information provided, the complainant contended that "clearly defamatory" comments had been broadcast. The complainant’s solicitor wrote:

We believe our client has proven at least on the balance of probability if not beyond a reasonable doubt that the comments were made which was uncalled for and unjustified and therefore defamatory to our client. We seek from the Authority a conclusion of this matter.

The Authority’s Determination

[34] The Authority accepts that the dispute between the New Zealand Milad Committee and Committee Member Mujeeb Sayed Hydrabadi on the one hand, and Radio Tarana on the other, is intense and of considerable importance to them. The Authority regrets that it is unable to determine the complaint.

[35] At a reasonably early stage in the process, the Milad Committee pointed out that the Authority would be in a position to determine the complaint once it had read a transcript of the broadcast complained about – the Saheri programme on 16 November 2002.

[36] The Authority’s efforts to follow this eminently sensible advice have been fruitless. It was advised by Radio Tarana that the tapes of all the relevant programmes had been provided to the Milad Committee in response to a letter dated 16 November. Moreover, Radio Tarana wrote, the tapes were of "top standard." The Authority was advised by the Milad Committee that the tapes obtained in response to that letter did not contain the programmes complained about. At various times, the Milad Committee has raised with the Authority the possibility that Radio Tarana had in fact failed to record the programmes.

[37] In an effort to resolve the disagreement about the tapes, the Authority sought affidavits from Radio Tarana and the New Zealand Milad Committee. Each one confirmed in a sworn affidavit the information earlier provided: ie from Radio Tarana that a recording of the programmes in dispute was included on the original tapes supplied; and from the Milad Committee that the tapes received did not contain those programmes. Subsequent efforts to obtain tapes and translations of Aaj Juma Hai on 15 November and Saheri on 16 November have not been successful in locating the comments said to have been broadcast on Saheri which were the focus of the complaint.

[38] The unavailability of audio tapes of radio programmes has been an ongoing concern for the Authority. Principle 8 of the Radio Code of Broadcasting Practice provides:

Principle 8

For a period of 35 days after broadcast, broadcasters are required to be able to provide a copy of the tapes of all open line and talk back programmes, and all outside broadcast news and current affairs coverage. For the same period, broadcasters are also required to retain, or be able to obtain, a tape or script of all news or current affairs items.

Guidelines

8a  In the event of a formal complaint, broadcasters will retain all relevant programme information, records and recordings until the complaint has been finally dealt with.

8b  Tapes and transcripts required pursuant to Principle 8 and all relevant information retained in the event of a formal complaint shall be made available to the Broadcasting Standards Authority on the Authority's written request.

[39] In 2002, the Authority’s dissatisfaction with some radio broadcasters’ tape retention practices gave rise to consideration of invoking the powers in s.30 of the Broadcasting Act. These provide for statutory rules in relation to the retention of recordings of programmes. However, after agreement was reached with the Radio Broadcasters Association (RBA) about tape retention practices, the development of rules was deferred.

[40] The current complaint highlights the problem that the agreement with the RBA does not apply to broadcasters who are not members of that industry group.

[41] The Authority reiterates that it regrets that it cannot determine this complaint because of the absence of a tape of the programme complained about. Whatever the merits of the dispute between Radio Tarana and the New Zealand Milad Committee, it is the broadcaster’s responsibility to ensure that a tape of the programme such as the programme complained about is retained for 35 days. Radio Tarana’s inability to provide a tape to the Authority, for whatever reasons, is a serious matter for the Authority and, if further retention failure recurs, the Authority will look again at the preparation of rules under s.30 of the Act.

For the above reasons, the Authority declines to determine the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
20 November 2003

Appendix

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

a. New Zealand Milad Committee to Radio Tarana seeking tapes of broadcasts of Aaj Juma Hai and Saheri programmes – 16.11.02
b. Radio Tarana to Milad Committee advising that Aaj Juma Hai can continue only if Mujeeb Sayed Hydrabadi is no longer the presenter in view of his defamatory comments – 18.11.02
c. Mr Hydrabadi’s solicitor’s letter (Kashyap Ng) to Radio Tarana challenging Radio Tarana’s letter of 18.11.02 to Milad Committee – 02.12.02
d. Milad Committee to Radio Tarana denying that tapes received contain the programmes complained about – 05.12.02
e. Mr Hydrabadi’s formal complaint to Radio Tarana – 11.12.02
f. Referral of Mr Hydrabadi’s formal complaint to Broadcasting Standards Authority – 17.02.02
g. Radio Tarana to Milad Committee cancelling contract for Aaj Juma Hai – 21.02.03
h. Radio Tarana to BSA responding to formal complaint – 21.02.03.
i. Mr Hydrabadi’s solicitor’s response to BSA – 20.03.03
j. Milad Committee to BSA also responding to Radio Tarana’s 21.02.03 letter – 04.04.03
k. Radio Tarana to BSA responding to Mr Hydrabadi’s solicitor’s letter of 20.03.03
1. BSA to Radio Tarana seeking affidavit regarding tapes – 29.05.03
m. BSA to Milad Committee seeing affidavit regarding tapes – 29.05.03
n. BSA to Mr Hydrabadi seeking tape – 29.05.03
o. Milad Committee to BSA with affidavits and part transcripts – 10.06.03
p. Mr Hydrabadi’s solicitor to BSA with audio tape – 11.06.03
q. Radio Tarana to BSA with affidavit – 18.06.03
r. Milad Committee to BSA responding to Radio Tarana’s affidavit – 25.06.03
s. Radio Tarana to BSA in response – 22.08.03
t. Mr Hydrabadi’s solicitor in response to Radio Tarana – 24.09.03
u. Milad Committee’s response to Radio Tarana – 15.09.03
v. Radio Tarana’s response to both letters – 03.10.03