BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

The Authority has not upheld a complaint that a segment of Overnight Talk breached the discrimination and denigration, offensive and disturbing content, and fairness standards. A caller to the show advised the host he believed Russia was acting in ‘the least violent way possible’ in its invasion of Ukraine, to which the host responded heatedly, referring to the caller’s opinion as ‘stupid’ and ‘bullshit’. The Authority was satisfied the language used amounted to low-level language, and the host’s comments, while potentially seen as disrespectful by some, did not reach the level necessary to constitute unfair treatment. The discrimination and denigration standard did not apply as the comments were directed at the caller as an individual.

Not Upheld: Discrimination and Denigration, Offensive and Disturbing Content, Fairness

The broadcast

[1]  During a segment of Overnight Talk on 6 October 2022 just after midnight, host Tim Beveridge took a call from a listener who initiated a conversation about the rising cost of goods due to the war in Ukraine. The caller stated he got his information from RT.com, and believed ‘Russia’s position is they want to do things the most non-violent way possible.’ The exchange continued with the following dialogue:

Host:                         [laughing] Are you kidding me? They want to do things in the most non-violent way possible. Can you be serious?

Caller:                      Absolutely. Well, they’ve been trying for years to try and stop Ukraine things.

Host:                         Oh, for God's sake, [caller], come on. They invaded the country.

Caller:                      Well, if your history is only from February, you are correct.

Host:                         Oh god.

Caller:                      But. But can you afford to pay lots of fuel. What sort of economy… [Appears caller was taken off air]

Host:                         Oh, who cares? I can't be bothered with your bullshit. Geez. I mean, what a stupid remark. Oh, Russia. I mean, seriously, why don’t you go and get a job working at the Kremlin or something. Fly over there, live in Russia. Hopefully they won't draft you. What a joke. Come on. I just. I'm just not here to do talkback on, you know, with this sort of. God sakes. Oh, Russia is trying to do things less violently. Have you heard a stupider comment? Seriously. [Caller] is normally good for a good old chat. He's not normally that obtuse and stupid. I don't think he is stupid. I think he is, I don't know what it is that makes people drawn to watching RT.com. The Kremlin's mouthpiece. Which represents the regime led by Vladimir Putin, who is a murderous dictator, who has caused the deaths of not just tens of thousands of Ukrainians, but also his fellow countrymen. Who poisons and assassinates people who represent any sort of threat. Geez, I'm sick of this. Sorry. And I apologize for saying ‘B’, ‘U’, ‘L’, ‘L’, ‘S’, ‘H’, ‘I’, ‘T’. I can't even dump myself. But come on. Come on [caller]. Why don't you pull your head out of RT.com and stop priding yourself on being the only person who's got the insight on this stuff? Because you are reading a website that is just nonsense. Maybe Russia will cut its production in oil, but to say, oh, they're looking for less violent means. For God's sakes. Have you heard such nonsense ever? Well, I probably have heard such nonsense, but I'd have to... anyway, that was cathartic.

The complaint

[2]  Ella Johnson complained the broadcast breached the discrimination and denigration standard of the Code of Broadcasting Standards in New Zealand on the basis the host ‘ridiculed the caller regarding his political beliefs’.

[3]  The complainant added:

‘The broadcaster uses foul language after speaking with [the caller] and ridiculed him with nastiness and malice. [The caller] was treated differently than other callers and it was so sad to hear.’

Jurisdiction

[4]  Under section 8(1B) of the Broadcasting Act 1989, the Authority is only able to consider complaints under the standard(s) raised in the original complaint to the broadcaster. However, in limited circumstances, the Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording, and where it is reasonably necessary in order to properly consider the complaint.¹

[5]  While the original complaint did not explicitly rely on the fairness and offensive and disturbing content standards, its wording at [3] raises issues relevant to both standards. We do not consider that the standard raised (discrimination and denigration) adequately captures the key concerns of the complainant in this area. On this basis, analysis under the offensive and disturbing content and fairness standards is reasonably necessary in order to properly consider the complaint. We therefore consider the offensive and disturbing content and fairness standards can be reasonably implied into the original complaint.

The broadcaster’s response

[6]  NZME did not uphold the complaint under the discrimination and denigration standard, stating ‘the comment complained [about] was directed at a particular individual rather than a section of the community within the meaning of this standard and therefore this standard does not apply.’

[7]  While disagreeing with the Authority’s decision to read in the offensive and disturbing content and fairness standards, the broadcaster did provide comments on each standard:

Offensive and disturbing content

• ‘The language used by the host (bullshit) during this broadcast falls into the category of low-level bad language’ which the Authority has advised “will rarely breach standards”.’ 
• ‘Newstalk ZB is an adult targeted radio station for 30-64 year olds.’
• ‘Tim Beveridge is a talk host known for his frank and forthright discussion of all manner of topics and regular listeners and callers (the complainant falls into this category) would be aware of this.’  
• ‘This was a late-night talkback show.’
• ‘Talkback is an opinionated environment and is granted some latitude to be provocative and edgy in the interests of robust debate.’
• ‘The host apologised for the language used.’

Fairness

• ‘In the context covered above, the caller (a regular caller to the programme) sought to characterise Russia as a non-violent actor vis à vis the Ukraine despite incontrovertible evidence to the contrary. NZME consider that the host treated the caller fairly, giving him ample time to express his views on air. The host was entitled to challenge the caller strongly on statements that in his view sought to justify and excuse the actions of Russia and Putin in the Ukraine and, as such, the host was also entitled to interject and end the call when he did.’

The standards

[8]  The discrimination and denigration standard² protects against broadcasts which encourage the 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.

[9]  The purpose of the offensive and disturbing content standard³ is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.⁴ The standard takes into account the context of the programme, and the wider context of the broadcast, as well as information given by the broadcaster to enable the audience to exercise choice and control over their viewing or listening.

[10]  The fairness standard⁵ protects the dignity and reputation of those featured in programmes.⁶ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

[11]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[12]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁷

[13]  Talkback radio fills an important place in our liberal democratic society.⁸ We have previously found the robust nature of talkback radio means the threshold for finding a breach in this context is high.⁹ While we agree talkback hosts ought to be professional and respectful when dealing with callers, including those who hold different views, we do not find Beveridge’s comments and approach met the high threshold of harm justifying intervention or restriction of the right to freedom of expression.

Discrimination and denigration

[14]  The complainant alleged the caller was discriminated against on the basis of his political belief.

[15]  The discrimination and denigration standard only applies to recognised ‘sections of the community,’ which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.¹⁰ While political belief is a protected ground under the Act, the standard does not apply to individuals and organisations, which are dealt with under the fairness standard.¹¹ In this case the host’s comments were directed at the caller as an individual – and to the caller’s comments that Russia was acting in the most ‘non-violent’ way possible – not at a section of the community for the purpose of the standard. Therefore the standard does not apply, and we have assessed this part of the complaint under the fairness standard.

[16]  For completeness, we note that even if this standard were to apply, ‘comments will not breach the standard simply because they are critical of a particular group, because they offend people, or because they are rude.’ Political discussions are important, and ‘allowing the free and frank expression of a wide range of views is a necessary part of living in a democracy’.¹² The standard is not intended to prevent the broadcast of material that is ‘a genuine expression of serious comment, analysis or opinion.’¹³ The comments complained about were the host’s genuine opinion of the validity of RT.com as a source of news, and of the invasion of Ukraine by Russia, which is widely regarded as unprovoked and has led to significant loss of life and displacement of Ukrainians.¹⁴ This would not amount to discrimination and denigration for the purpose of this standard.

Offensive and disturbing content

[17]  The complainant has alleged the host used offensive language during the broadcast, and ‘ridiculed’ the caller. Words within the broadcast that might have been considered offensive include ‘bullshit’, ‘for god’s sake’, ‘oh god’ and ‘stupid’.

[18]  Context is crucial in assessing whether disturbing and offensive content standard has been breached. This includes the context in which the material complained about was presented and the wider context of the broadcast.¹⁵

[19]  We acknowledge the complainant’s concern about Beveridge’s comments and approach. However, in its context, we do not consider this broadcast was likely to cause widespread undue offence or distress. Relevant contextual factors supporting our view are:

• The broadcast was a talkback radio show, an environment where robust statements are to be expected in the interests of generating debate.
• Newstalk ZB has an adult target audience.¹⁶ The segment of concern was aired just after midnight, well outside of children’s accepted listening times.¹⁷
• Tim Beveridge is known for his upfront, and robust discussions of a wide range of topics.¹⁸
• The caller voluntarily called the show, initiated the discussion on a controversial topic, and would have known the topic was one which could attract heated opinions.
• The host apologised for using the word ‘bullshit’, and acknowledged he had been unable to ‘dump’ it (cut it out before it aired).
• The words ‘bullshit’ and ‘stupid’ amount to low-level bad language, and come within the BSA’s guidance on complaints that are unlikely to succeed.¹⁹
• While some people may find them offensive, the phrases ‘for god’s sake’ and ‘oh god’ are not widely considered to be coarse language, and also come within our guidance on complaints that are unlikely to succeed.²⁰

[20]  Taking into account the factors listed above, we do not consider the exchange overstepped audience expectations of a late-night talkback radio show, and was unlikely to disproportionately offend a significant number of listeners. Accordingly, we do not uphold the complaint under this standard.

Fairness

[21]  A consideration of what is fair depends on the nature of the programme and its context (including the public significance of the broadcast). Participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution.²¹ The nature of the individual, for example a public figure familiar with dealing with the media, is also a relevant factor when considering what is fair.

[22]  In this case, the complainant was concerned the host ‘ridiculed’ the caller during the segment. We note the host described the caller, and the caller’s comments as ‘stupid’ on several occasions, and stated the caller’s opinion was ‘bullshit’.

[23]  In a similar previous decision relating to talkback radio, where the host referred to a caller as a ‘sad pathetic creature’, we found the comments did not reach the threshold for finding a breach of the fairness standard.²² For similar reasons to that complaint (as explained below), and for reasons addressed under the offensive and disturbing content standard at [19], we do not find Beveridge’s comments amounted to unfair treatment justifying regulatory intervention in this case.

[24]  While we acknowledge cutting off the caller, and describing them and their comments as ‘stupid’ was likely insulting, the threshold for finding a breach of the fairness standard may be higher in a talkback environment.²³ Callers should reasonably expect by choosing to enter and participate in this forum, they may receive an adverse response if the host does not share their views, particularly where the host has a forceful style well-known to listeners. In this case, we note the caller appears to be a regular caller of the show, and was known to the host (the host stated ‘[caller] is normally good for a good old chat’). This would indicate the caller understood the type of show and the host he was choosing to engage with.

[25]  Further, the host clarified that he did not think the caller was stupid, but thought the caller had been drawn in by RT.com, which the host believed was ‘the Kremlin’s mouth piece’, and ‘nonsense’.

[26]  We consider listeners would have understood Beveridge’s comments, within the context of the discussion, reflected Beveridge’s honestly held opinion on RT.com and Russia’s conduct in its invasion of Ukraine – rather than a personal attack on the caller. In the circumstances, we find the exchange did not breach the fairness standard.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
8 February 2023

Appendix

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

1  Ella Johnson’s formal complaint to NZME – 6 October 2022

2  NZME’s response to the complaint – 6 November 2022

3  Johnson’s referral to the Authority – 7 November 2022

4  NZME’s further comments – 12 December 2022

¹ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
² Standard 4, Code of Broadcasting Standards in New Zealand
³ Standard 1, Code of Broadcasting Standards in New Zealand
⁴ Commentary, Standard 1, Code of Broadcasting Standards in New Zealand at page 8
⁵ Standard 8, Code of Broadcasting Standards in New Zealand
⁶ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
⁷ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁸ Singh and NZME Radio Ltd, Decision No. 2020-089 at [7]
⁹ Day & Moss and NZME Radio Ltd, Decision No. 2018-090 at [22]
¹⁰ Commentary, Standard 4, Code of Broadcasting Standards in New Zealand at page 12
¹¹ As above
¹² As above
¹³ Guideline 4.2
¹⁴ Michael Shields “U.N. reports at least 240 civilian casualties, 64 deaths in Ukraine” Reuters (online ed, 27 February 2022); Martin Belam and Léonie Chao-Fong “Russia-Ukraine war at a glance: what we know on day 328 of the invasion” The Guardian (online ed, 17 January 2023)
¹⁵ Guideline 1.1
¹⁶ The Radio Bureau “Brand profiles: Newstalk ZB” <trb.co.nz>
¹⁷ Guideline 2.1
¹⁸ Boulton and NZME Radio Ltd, Decision No. 2022-043, at [12]; Blomfield and NZME Radio Ltd, Decision No. 2022-027 at [15]; see also: Tim Beveridge “If you want to win us over, stop the patronising nonsense” NewstalkZB (online ed, 13 May 2022); Tim Beveridge “The Government is turning us into a nation of beneficiaries” Newstalk ZB (online ed, 20 May 2022); Tim Beveridge “I’m angry it’s taken this long for the PM to get here” Newstalk ZB (online ed, 10 November 2021)
¹⁹ See: “Complaints that are Unlikely to Succeed” (accessed 16 November 2022) Broadcasting Standards Authority | Te Mana Whanonga Kaipāho <www.bsa.govt.nz> at “Low Level Language”
²⁰ See: “Complaints that are Unlikely to Succeed” (accessed 16 November 2022) Broadcasting Standards Authority | Te Mana Whanonga Kaipāho <www.bsa.govt.nz> at “Blasphemy”
²¹ Guideline 8.2
²² Benge and NZME Radio Ltd, Decision No. 2022-013
²³ Benge at [19]