Leighton and NZME Radio Ltd - 2018-034 (23 July 2018)
- Peter Radich (Chair)
- Paula Rose
- Wendy Palmer
- Te Raumawhitu Kupenga
- Matthew Leighton
BroadcasterNew Zealand Media and Entertainment
[This summary does not form part of the decision.]
During Hauraki Breakfast, hosts Jeremy Wells and Matt Heath discussed smoking marijuana, in relation to several National Party MPs who had recently publicly stated they had never tried it. The hosts took calls from listeners who had also never tried marijuana and asked them why they had never tried it. The Authority did not uphold a complaint that the broadcast promoted and encouraged the use of marijuana. The Authority found the broadcast amounted to a comedic discussion of smoking marijuana that did not go beyond established audience expectations of Radio Hauraki, Hauraki Breakfast or the hosts. The Authority noted that humour and satire are important aspects of free speech, and found that on this occasion, there was insufficient risk of harm to justify limiting the broadcaster’s right to freedom of expression.
Not Upheld: Law and Order, Children’s Interests
 During Hauraki Breakfast, hosts Jeremy Wells and Matt Heath discussed smoking marijuana, in relation to several National Party MPs who had recently publicly stated they had never tried it. The hosts invited calls from listeners who had also never tried marijuana to discuss why they had never tried it.
 Matthew Leighton complained the segment amounted to the promotion and encouragement of drug use and had the potential to put social pressure on young people to engage in an illegal activity.
 The issues raised in Mr Leighton’s complaint are whether the broadcast breached the law and order and children’s interests standards, as set out in the Radio Code of Broadcasting Practice.
 The segment was broadcast at 7.40am on 26 February 2018 on Radio Hauraki. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Freedom of expression
 The starting point when we determine a complaint about an alleged breach of broadcasting standards is to recognise the importance of the right to freedom of expression. We weigh the value of the broadcast, as well as the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused to individuals, or to audiences generally, as a result of the broadcast.
 Hauraki Breakfast is an entertainment-style morning show known for the hosts’ often absurd and satirical humour. Satire and humour are important and valued parts of freedom of expression. Programmes of this kind will often touch on controversial subjects that offend some people or push the boundaries, for the purposes of comedic effect and entertainment, targeted at the station’s established audience.
 For the reasons we outline below, we have not found that the broadcast caused harm in the manner alleged in the complaint, or otherwise reached the threshold which warrants restricting the right to freedom of expression. We therefore do not uphold any aspect of the complaint.
Did the programme encourage listeners to break the law, or otherwise promote, condone or glamorise criminal activity?
 The purpose of the law and order standard (Standard 5) is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity. Programmes should not actively promote serious antisocial or illegal behaviour (guideline 5a). The context of the programme and the wider context of the broadcast are important considerations when assessing complaints under this standard (guideline 5b).
The parties’ submissions
 Mr Leighton submitted:
- Throughout the segment the hosts clearly promoted and endorsed marijuana use.
- The presenters sought to normalise drug use and encouraged trying drugs.
- The broadcast was not framed as one of serious debate or social commentary and therefore the hosts’ encouragement of listeners to try marijuana was a clear breach of broadcasting standards.
- Regardless of the statistics and the current political context, the use of marijuana is still illegal.
- Given the position of authority and influence the hosts have, extra weight may be attributed to their comments, so they may have greater influence.
 NZME submitted:
- Given audience expectations of Hauraki Breakfast and the hosts, it was clear that this broadcast did not act as an endorsement for, or encouragement of, the misuse or abuse of marijuana.
- The hosts did not encourage drug use in the broadcast, they explicitly stated that ‘no one should feel like they should ever have to’ try marijuana, and gave air time to people who had not tried it.
- The conversation was based on the fact that, statistically, many New Zealanders have tried marijuana. While statistics vary as to how many New Zealanders have tried marijuana, it could be up to half of New Zealanders aged between 15 and 65, with one in six people defining themselves as regular users. Marijuana is the most widely used illicit drug in New Zealand.
- Notwithstanding its decision not to uphold the law and order complaint, the broadcaster discussed this matter with the Content Director to remind hosts not to encourage drug use, and to be cognisant of their responsibilities under the broadcasting standards.
 The law and order standard does not prevent the discussion of criminal behaviour or other law-breaking, and does not prevent genuine criticism, or even provocative criticism, of laws or their enforcement.1 It is designed to protect against broadcasts which actively encourage audience members to engage in criminal activity.
 While the broadcast discussed smoking marijuana, which is ‘illegal behaviour’ (guideline 5a), we do not consider the broadcast actively encouraged or promoted illegal behaviour.
 During the broadcast, the hosts did not suggest that ‘everyone should try marijuana’. On the contrary, they acknowledged at several points during the broadcast that people should not feel pressured to try it, or anything else, if they did not want to. When one host raised the issue of whether National MPs should try it, the other host shut down the question, stating it was a ‘legal issue’.
 The hosts’ humour and remarks were also balanced with the opinion of callers who had never tried marijuana. The callers outlined the reasoning behind their decisions and whether or not it had affected their lives. It was clear from the calls and the hosts’ reactions that the focus of the segment was exploring why people don’t try marijuana, in a comedic fashion and out of curiosity, rather than promoting or encouraging listeners who had never smoked marijuana to try it for the first time.
 The programme was satirical in nature and, as discussed below, Radio Hauraki has well-established audience expectations regarding humorous and edgy material. While the broadcast was not a genuine in-depth debate about the legality of marijuana in New Zealand, it was an open discussion (albeit comedic) of first-time marijuana use. The nature and tone of the broadcast was in keeping with the established expectations of Radio Hauraki’s target audience. The hosts provided timely and relevant comedic content, considering the prevalence of marijuana in Aotearoa and the current public and political interest in marijuana law reform.
 For these reasons we find that upholding this part of the complaint would unreasonably restrict freedom of expression and we therefore do not uphold the complaint under Standard 5.
Did the broadcaster adequately consider children’s interests?
 The children’s interests standard (Standard 3) requires broadcasters to ensure children can be protected from broadcasts which might adversely affect them. The standard will only apply during times children are likely to be listening to the radio – usually up until 8.30pm, and particularly before and after school (guideline 3a).
The parties’ submissions
 Mr Leighton submitted:
- While children are not the target audience, the target demographic of Radio Hauraki may include students and young adults.
- It is not unreasonable to expect younger people still at school and below the age of 18 may be listening to this broadcast.
- Young people face enough peer pressure when it comes to marijuana use without morning radio contributing to its normalisation.
 NZME submitted:
- Radio Hauraki is targeted at an adult audience aged 30 to 59.
- Hauraki Breakfast is not targeted at children, and, given the edgy nature of this show in particular, there is an audience expectation of broadcast content which is challenging or ‘pushes the boundaries’.
- The hosts gave airtime to callers who do not smoke (and have never smoked) marijuana.
 Context is highly relevant to a consideration of the children’s interests standard, nominated in Mr Leighton’s complaint. In this case relevant contextual factors include:
- the time of broadcast at 7.40am, when children may be listening
- the adult target audience of Radio Hauraki and Hauraki Breakfast
- audience expectations of Hauraki Breakfast
- audience expectations of the hosts, Jeremy Wells (a comedian) and Matt Heath (media personality), who are known for humour that can be provocative or challenging
- the light-hearted tone of the segment as whole.
 For the purposes of this standard a child is defined as a person under the age of 14.2 As noted by both parties, Radio Hauraki is not targeted at children, however some children may have happened to hear parts of this broadcast, for example in the car on the way to school.
 There are established audience expectations that Radio Hauraki, Hauraki Breakfast and these hosts will provide content that is satirical, humorous and edgy. This segment focused on ‘adult’ subject matter that could be challenging and controversial. However, in our view, the hosts’ measured treatment of the issue and the way the discussion progressed mitigated the risk of harm to any children who may be listening. The introduction of the topic provided parents and caregivers with an indication of the content, enabling them to choose whether they and their children should continue to listen. As we have said in relation to law and order, there was no active encouragement in this broadcast to listeners or young people to try marijuana. Comments were included from callers about the reasons why they had chosen not to.
 For these reasons, we consider the broadcaster met the requirements of the children’s interests standard, and that upholding the complaint would unreasonably limit the broadcaster’s right to freedom of expression on this occasion.
 Accordingly, we do not uphold the complaint under this standard.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
23 July 2018
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Matthew Leighton’s formal complaint – 26 February 2018
2 NZME’s response to the complaint – 26 March 2018
3 Mr Leighton’s referral to the Authority – 6 April 2018
4 NZME’s response to the referral – 25 April 2018
5 Mr Leighton’s final comments – 3 May 2018
6 NZME’s final comments – 14 May 2018
1 Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
2 Definitions, Broadcasting Standards in New Zealand Codebook, page 9