BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Warning: This decision contains language that some readers may find offensive

Summary  

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

The Authority has not upheld a complaint that action taken by NZME was insufficient, after it upheld a complaint about language used in an interview on The Nutters Club. The interviewee told his story of overcoming drug addiction and offending, and now working to help others do the same. After saying, ‘Excuse all my language I use, too, it will get a little bit worse, it’s just how it is when you remember’, the interviewee used the words ‘fuck’, ‘shit’, and ‘arse’ (and variations of these) repeatedly. The Authority determined it would not have found a breach of the standards in the first instance, in the context of the broadcast. In particular: the interview carried high value in terms of the exercise of the right to freedom of expression and the narration of an important story about hope, transformation, and community-building, it was broadcast late at night, and the interviewee signposted he would use coarse language, giving listeners an opportunity to decide whether to continue listening. The Authority noted the action taken in response to the language and complaint was significant, which reflected the broadcaster’s sensitivity to the needs and interests of its listeners.

Not Upheld: Good Taste and Decency (Action Taken), Programme Information (Action Taken)

The broadcast

[1]  During an episode of The Nutters Club (broadcast at 11pm on 13 June 2021, on Newstalk ZB), the hosts interviewed a man who told his story of overcoming drug addiction and offending, and now working to help others do the same. Approximately 12 minutes into the 63-minute interview, the interviewee said, ‘Excuse all my language I use, too, it will get a little bit worse, it’s just how it is when you remember’, before frequently using the words ‘fuck’, ‘shit’ and ‘arse’ (or derivations of these) repeatedly as part of telling his story.

[2]  Approximately 54 minutes into the interview, the interviewee also said, ‘I was told not to swear too much at the start but I just want everyone to know…I’m not trying to offend anyone or anything but when you’ve lived the life like I have and many others have, that’s just our language, and that’s how we understand each other and that’s what that lifestyle brings and…when I talk about what I’ve done it’s because I’m talking about being in that moment, and if I try and dress it up for you guys you’ll think I’m full of shit and I’m lying. So I’m just telling you straight how it is.’

[3]  The interview was terminated early by the producer, 63 minutes in, and removed from NZME’s online platform, because of the coarse language used by the interviewee. Following termination of the interview, the hosts discussed the themes of hope, transformation and community-building illustrated by the interviewee’s story, and received listener feedback, all of which was positive.

The complaint and the broadcaster’s response

[4]  Andrew Johnston complained the broadcast breached the good taste and decency and programme information standards through the repeated use of coarse language and the broadcaster’s failure to intervene when this occurred.

[5]  NZME upheld Mr Johnston’s complaint:

• ‘Notwithstanding the fact that the show in question is broadcast at a late hour when only adults are likely to be tuning in, we recognise that the level of bad language broadcast was unacceptable and that the hosts failed to intervene to caution the interviewee about his language.’
• ‘Consequently, we accept that this broadcast did not meet our usual standards and uphold your complaint in respect of [the good taste and decency] standard.’
• ‘On this occasion we accept that the language contained in the broadcast was outside audience expectations and we uphold your complaint in respect of [the programme information] standard [that an audience advisory should have been broadcast].’

[6]  NZME outlined, for the complainant, action it had taken following receipt of the complaint:

• ‘Following receipt of your complaint, the Content Director followed up with the hosts and producer of this show and counselled them about their failure to manage the guest appropriately during this broadcast.’
• ‘The hosts apologised unreservedly to listeners for any offence caused by their failure to ensure the interviewee moderated his language while on air.’ (We note NZME subsequently clarified that there was no on-air apology. The hosts’ apology was conveyed to the complainant.)
• ‘We have also arranged for the hosts to undergo further training on the broadcasting standards to prevent similar situations arising in future.’

[7]  In response to the referral, NZME further advised:

• ‘On the night of the programme (shortly after midnight), immediately after being alerted of the language being broadcast, the Content Director contacted the producer and instructed him to terminate the interview right away and take the interviewee off air. To minimise offence to our listeners, the interview was also removed from our On Demand online platform.’
• ‘The following morning (Monday 14 June), the Content Director followed up with The Nutters Club team to find out what had happened…’  The hosts and producer apologised to the Content Director and the Newstalk ZB team. ‘We decided that the best way to communicate this apology was to pass it onto the complainant individually in our written response.’
• ‘The Content Director has also given clear instructions that in future if The Nutters Club team have any concerns about what a guest might say on air, the interview must be pre-recorded.’
• ‘NZME values the reputation of its stations including Newstalk ZB and provides regular training to its staff on the Broadcasting Standards Authority’s Code of Broadcasting Practice. In this case, we immediately scheduled further training for all members of The Nutters Club team on the Radio Code, to ensure they are clear on what is and is not acceptable on-air content. This training was conducted in June.’
• ‘Finally, NZME wishes to apologise to the complainant for the offence caused by this broadcast.’

[8]  Mr Johnston referred the complaint to the Authority on the basis the broadcaster’s actions were insufficient. In light of the further action advised in the broadcaster’s response to the referral, Mr Johnston alleged inconsistency and fabrication on the part of the broadcaster, and complained he never received an apology. He added:

• ‘Wherever the truth may lie [about what action was actually taken], it is of no consequence, as the broadcast took place.’
• ‘Because public money is being used to fund this programme and difficult, sensitive social issues are addressed, I believe that “The Nutters Club” should be measured against a higher bar of professionalism than perhaps is used in other public broadcasts.’
• ‘The broadcast could not have been more offensive and I was highly offended and affected by it.’
• ‘[The broadcaster has] admitted to most serious breaches of the Code, and I believe should receive the harshest penalties because of that.’

[9]  In its final comments, NZME added:

• ‘As already stated the training referred to was conducted in June (17 June to be precise). The complainant appears to be suggesting that this training did not take place when it did. NZME take serious issue with and rejects such a claim.’
• ‘NZME wishes to reassure Mr Johnston that his complaint has been treated seriously. While an apology was provided in our initial response (from the hosts to the listeners), NZME recognises that it should have also apologised directly to Mr Johnston in our initial reply.’
• ‘We recognise that Mr Johnston was affected and offended by this broadcast, however, the language used by the guest was not malicious or nasty or directed at a particular individual or group of people; rather it was reflective of his usual speech habits and turns of phrase. The guest himself made it clear during the broadcast that it was not his intention to offend anybody and apologised to any listeners who may have been offended. This does not excuse the failure by the hosts or the producer to intervene sooner, but it is an important factor when considering the potential for harm caused by the broadcast.’

The standards

[10]  The good taste and decency standard¹ states current norms of good taste and decency should be maintained, consistent with the context of the programme. The standard is intended to protect audiences from content likely to cause widespread undue offence or distress, or undermine widely shared community standards.²

[11]  The programme information standard³ states broadcasters should, where reasonably possible, issue an audience advisory where the content of a broadcast is outside audience expectations. It ensures audiences are properly informed about the content of programmes on offer. The application of the standard differs across the codes, reflecting the different platforms from which content is delivered,⁴ and the standard will rarely apply to radio.⁵

Our analysis

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

[13]  We have also considered the important right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of ideas, information and content and the public’s right to receive those. We may only intervene and uphold a complaint where the broadcast has caused actual or potential harm at a level that outweighs the right to freedom of expression, and has not been remedied by the action taken.

[14]  For the reasons below, we do not consider regulatory intervention or restricting the right to freedom of expression is justified in this case.

Action taken: Good taste and decency, and programme information

[15]  Where the broadcaster has already upheld the complaint, we are primarily concerned with the action it has taken assessed against the gravity of the breach.⁶ This necessarily first involves a consideration of the nature and severity of the conduct. In this case, we would not have found a breach of standards in the first instance.

[16]  Contextual factors relevant to this assessment include:⁷

• The broadcast aired, live, at 11pm.
• The target audience is adults aged 30-64.
• As above, the interview was terminated early by the producer, 63 minutes in, because of the language used by the interviewee, and it was also removed from the broadcaster’s online platform on this basis.
• The Nutters Club is a publicly-funded programme, founded by Mike King in 2009, tackling a range of challenging issues facing New Zealand society including mental health and addiction.
• The episode in question told the story of the interviewee’s struggle with addiction, crime and prison, his journey to overcome that addiction and reintegrate into society, and his work now helping others do the same, in collaboration with some of the police who were directly responsible for his arrest and incarceration. The overall tone of the piece emphasised themes of hope, transformation, and community-building.
• The broadcast was introduced as ‘the show where we talk about your mental health every Sunday night and Monday morning and see if we can help you along the way’.
• The interviewer’s approach was to be open with the interviewee and allow him to tell his story in his own voice, which is a signature of the programme.
• The interviewee was not introduced with reference to his experience with drugs, crime, or prison.
• The interviewee clearly signposted that his language would ‘get a little bit worse’, before using coarse language.
• The interviewee also set the scene, before using coarse language, in terms of drug dealing and crime, which indicated the content could be of a nature that may offend.
• The interviewee then quickly established the tone with a voice and vocabulary that made it clear the narration of his story would continue to use coarse language.
• The use of ‘fuck’, ‘shit’, and ‘arse’ and variations of these was specific to the narration of the interviewee’s journey, which occurred within a particular socio-cultural context, and often quoted individuals using these words in the moment.
• The coarse language was reflective of the nature of the experience that was being recounted, characterised by drugs and crime, and the interviewee’s recalling of some difficult memories and sharing intimately personal details of his journey. The Authority has previously recognised the value in allowing individuals to express themselves, and tell their personal stories, in their own words.⁸
• The interviewee stated towards the end of the interview, ‘I just want everyone to know…I’m not trying to offend anyone or anything but when you’ve lived the life like I have and many others have, that’s just our language’.
• As noted above at [3], following the termination of the interview, the hosts discussed the themes of hope, transformation and community-building illustrated by the interviewee’s story, and received listener feedback, all of which was positive.

[17]  Overall, there was significant value and public interest in the broadcast, in terms of giving the interviewee a platform to tell his story, supporting those struggling with addiction or in conflict with the law, for whom this story likely conveyed a sense of hope and solidarity, and also giving others an insight into the realities of drug addiction and the impact it can have on people.

[18]  This value and public interest, combined with key contextual factors including the late time of broadcast, the adult target audience, and the interviewee’s signposting of the language, in our view minimised any potential harm.

[19]  Although a specific pre-broadcast advisory may have been useful for listeners, taking the broadcast as a whole, we consider listeners had an adequate opportunity to exercise choice and control and decide whether to continue listening.

[20]  As a result, we do not consider restricting the right to freedom of expression – including the broadcaster’s right to present this interview, the audience’s right to hear it, and the interviewee’s right to express himself – would be reasonable or justified in the circumstances. 

[21]  It follows that we do not uphold the complaint that the action taken by the broadcaster was insufficient. We note this action, and that taken in response to the language in the interview of the broadcaster’s own initiative was, in fact, significant, which reflects the broadcaster’s sensitivity to the needs and interests of its listeners.

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

Susie Staley
Acting Chair
15 September 2021    

Appendix

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

1  Andrew Johnston’s formal complaint – 14 June 2021

2  NZME’s decision on the complaint – 12 July 2021

3  Mr Johnston’s referral to the Authority – 12 July 2021

4  NZME’s response to the referral – 30 July 2021

5  Mr Johnston’s final comment – 2 August 2021

6  NZME’s clarification regarding apology – 13 August 2021

7  NZME’s final comments – 18 August 2021

¹ Standard 1 of the Radio Code of Broadcasting Practice
² Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
³ Standard 2 of the Radio Code of Broadcasting Practice
⁴ Commentary: Programme Information, Broadcasting Standards in New Zealand Codebook, page 13
⁵ Guideline 2a
⁶ See, for example, Horowhenua District Council and MediaWorks Radio Ltd, Decision No. 2018-105 at [19]; and Du Fall and the Radio Network Ltd, Decision No. 2014-055 at [8]
⁷ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
⁸ See, for example: Cant and Television New Zealand Ltd, Decision No. 2021-030 at [17], [18]; and Family First New Zealand and TVWorks Ltd, Decision No. 2012-037 at [8]