BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Radio Pacific – talkback – caller referred to Prime Minister Helen Clark as "a barren bitch and a sleeping homosexual" – failure to cut off caller – breach of good taste and decency – broadcaster failed to respond to complaint within statutory 20 working days – later advised the broadcast of derogatory comments against policy – host apologised and gave assurance that it would not occur again

Findings
Principle 1 – personal abuse – unacceptable – uphold

Principle 8 – no tape – no excuse – uphold

Order
Principle 1 – broadcast of approved statement

This headnote does not form part of the decision.

Summary

[1] During a talkback programme broadcast on Radio Pacific on 20 September 2001 between 9.00pm and 10.00pm, a listener heard a caller to the station describe Prime Minister Helen Clark as "a barren bitch and a sleeping homosexual".

[2] The listener, Marjorie Lawrence, complained to The RadioWorks Ltd, the broadcaster, that the language was "foul and disgraceful". She said she understood there was a seven-second delay in the airing of calls to the station, and therefore there was no need for the language to have been broadcast.

[3] When she did not receive a response from the broadcaster with the statutory 20 working days, Ms Lawrence referred her complaint to the Broadcasting Standards Authority under s.(8)(1)(b) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint and orders the broadcast of an approved statement.

Decision

[4] The members of the Authority have read the correspondence listed in the Appendix. They have not listened to a tape of the item complained about as the broadcaster was unable to provide one. The Authority determines the complaint without a formal hearing.

The Programme

[5] During a talkback programme broadcast on Radio Pacific on 20 September 2001 between 9.00pm and 10.00pm, a listener heard a caller to the station describe Prime Minister Helen Clark as "a barren bitch and a sleeping homosexual".

The Complaint

[6] The listener, Ms Lawrence, complained to The RadioWorks that the language was "foul and disgraceful". She said she understood there was a seven-second delay in the airing of calls to the station, and therefore there was no need for the language to have been broadcast.

The Referral to the Authority

[7] When she did not receive a response from the broadcaster with the statutory 20 working days, Ms Lawrence referred the complaint to the Broadcasting Standards Authority.

The Broadcaster’s Response to the Authority

[8] TRW responded to the Authority that it had no record of having received Ms Lawrence’s complaint and that, as more than 35 days had elapsed since the broadcast, it no longer had a recording of the item complained about.

[9] Following a request from the Authority to respond to the substance of the complaint, TRW again responded that it had no record of having received Ms Lawrence’s complaint and that it no longer had a recording of the broadcast. Repeating the explanation offered in its first response to the Authority, The RadioWorks advised:

We note that this is the second instance where we have no record of receiving correspondence from complainants.

We cannot offer an explanation as to why this has occurred, but do point out that the [other letter it had no record of receiving] was sent to a Wellington address while this is the first instance where an Auckland address has been involved.

The Broadcaster’s Response to the Substance of the Complaint

[10] In its reply to the Authority dealing with the substance of the complaint, The RadioWorks advised that it was company policy that comments like the one in question should not go to air. The RadioWorks said that the host did not react quickly enough to "dump" the caller. The RadioWorks noted that the host had been reminded of the company policy, had apologised for this incident and had given an assurance that it would not recur.

[11] While not recording the specific standard against which the complaint had been assessed, the broadcaster appears to have referred to Principle 1 of the Radio Code of Broadcasting Practice. It reads:

Principle 1

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.

Guideline

1a  Broadcasters will take into consideration current norms of decency and good taste in language and behaviour bearing in mind the context in which any language or behaviour occurs and the wider context of the broadcast eg time of day, target audience.

The Complainant’s Final Comment

[12] In her final comment, Ms Lawrence stated that the host’s reactions were usually "quite rapid" but he appeared "amused", and "empathetic" to the caller’s comments.

The Authority’s Determination

[13] Principle 8 of the Radio Code of Broadcasting Practice reads:

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.

[14] The RadioWorks has no record of Ms Lawrence’s original complaint. When asked by the Authority to respond to Ms Lawrence’s complaint, The RadioWorks advised that the 35 day period had elapsed and it had not retained the recording.

[15] As Principle 8 requires that tapes of the talkback radio be retained for 35 days, and as there is no apparent legitimate reason for the complainant’s correctly addressed letter not to have arrived with the broadcaster, the Authority finds that Principle 8 has been breached.

[16] As its correspondence had focused on absence of a tape, The RadioWorks, at the Authority’s specific request, dealt with the substance of the complaint. It advised that it had a policy of not allowing comments, such as the ones used on 20 September last year, to go to air.

[17] On this occasion, The RadioWorks advised, the host "did not react quickly enough to dump the caller". The host, The RadioWorks continued, had apologised and given an assurance that there would be no repeat of such an incident.

[18] The Authority agrees with the broadcaster that the broadcast was unacceptable. It considers the comment was abusive and unacceptable on radio and that the broadcast breached the requirement for good taste and decency in Principle 1.

[19] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. It is the clear intention of the Broadcasting Act to limit freedom of expression. Section 5 of the New Zealand Bill of Rights Act 1990 provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". The Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. In addition, for the reasons given in this decision, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In coming to this conclusion, the Authority has taken into account all the circumstances of the complaint, including the nature and the context in which the comments complained about were used, and the potential impact of an order.

[20] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion.

For the above reasons, the Authority upholds the complaint that the broadcast by The RadioWorks Ltd of an item on Radio Pacific on 20 September 2001 breached Principles 1 and 8 of the Radio Code of Broadcasting Practice.

[20] Having upheld the complaints, the Authority may make an order under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[21] In regard to the finding that Principle 1 had been breached, The RadioWorks considered "an on air apology from the host would be the suitable penalty". Given the lack of a tape, it argued that no penalty for the Principle 8 finding was warranted. Ms Lawrence expressed her satisfaction that the complaint had been upheld and did not want to make a submission in regard to penalty.

[22] The Authority upholds The RadioWorks’s submission in regard to its findings on both Principles, and does not impose an order in regard to the breach of Principle 8. In imposing the following Order for the finding under Principle 1, the Authority has considered the provisions of the New Zealand Bill of Rights Act 1990, and is firmly of the opinion that the Order is reasonable and demonstrably justified in a free and democratic society.

Order

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders The RadioWorks Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld. The statement shall be broadcast at a time and date to be approved by the Authority.  The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainant of the manner in which the order has been complied with.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
9 May 2002

Appendix

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

1. Marjorie Lawrence’s Formal Complaint to The RadioWorks Ltd – 21 September 2001
2. Ms Lawrence’s Referral to the Authority – 23 October 2001
3. TRW’s Response to the Authority – 6 November 2001
4. TRW’s Further Response to the Authority – 19 December 2001
5. Ms Lawrence’s Further Letter to the Authority – 11 January 2002
6. TRW’s Response to the Authority on Substance of Complaint – 5 February 2002
7. Ms Lawrence’s Final Comment – 12 February 2002
8. Ms Lawrence’s Submission on an Order – 5 April 2002
9. TRW’s Submission on an Order – 30 April 2002