BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

While filling in on Magic Talk’s Magic Mornings, John Banks discussed former CEO Grainne Moss’s departure from Oranga Tamariki. One talkback caller made comments which were endorsed by Mr Banks. MediaWorks found these were denigrating towards Māori and breached the good taste and decency and discrimination and denigration standards. The Authority upheld a complaint that the action taken by MediaWorks did not sufficiently remedy the harm caused by the breaches. It found the comments were foreseeable in the broadcast environment MediaWorks had created.

Upheld: Good Taste and Decency (Action Taken), Discrimination and Denigration (Action Taken)

Orders: Section 13(1)(a) – broadcast statement; Section 16(4) – $3,000 costs to the Crown

Background

[1]  On 26 January 2021, John Banks was filling in for Peter Williams on Magic Talk’s Magic Mornings. Mr Banks discussed Grainne Moss’s departure from Oranga Tamariki with former MP Michael Bassett, who commented that Oranga Tamariki is ‘dealing with really bad substrata of Māori society that needs straightening out’.

[2]  Mr Banks then outlined Ms Moss’s background and said ‘she moved to Oranga Tamariki, the vulnerable children, Māori kids government department’. He discussed the issue with a caller then invited further calls on the subject:

They collectively believe that the problem we have with vulnerable Māori kids being beaten up by their mothers and fathers in their homes can be fixed with giving and handing out more money. I don't believe that. It will be fixed by leadership coming from within. Those Māori Dames that got rid of Grainne Moss from the vulnerable Māori kids division of the government, those leaders need to take responsibility, grasp the nettle and give us solutions, not abuse someone who's come from Ireland to do her best to save the Māori race. Then we need solutions. What are their solutions? We've got the lines open for them.

[3]  Another caller (Richard) commented on the Māori leaders who had called for Moss’s departure and went on to say:

…this notion that Māori are victims, they're victims of their own genetic background, they are genetically predisposed to crime, alcohol and underperformance educationally. They just do not have the – they're a Stone Age people from a Stone Age culture. And I'm not interested one bit, and neither have my children been interested, in their Stone Age culture.

[4]  Mr Banks responded, ‘Oh, just a minute. Just a minute. Your children need to get used to their Stone Age culture because if their Stone Age culture doesn't change, these people will come through your bathroom window’. Callers subsequently rang in to the show to disagree with these comments.

[5]  The section of the broadcast outlined in paragraphs [3] & [4] was posted to social media. Mr Banks apologised on 27 January 2021 (the following day) and as a result of public outcry, Vodafone, and Kiwibank (among others) pulled advertising from Magic Talk.¹ Mr Banks’ apology was as follows:

This is the ‘put the record straight’ component of this broadcast, because we like to do that, we don't like to malign people, we don't like to insult people. And we always talk about truth radio. Yesterday morning … we had a big discussion about why [Grainne Moss] was sacked from the vulnerable Māori division of the government, Oranga Tamaki (sic) and we talked about her, and a man made some very denigrating [re]marks about Māori.

I didn't pick it up at the time, and here when you're broadcasting, you're talking to producers, you're talking to bosses, you're talking to Lindsay, you're looking at ad breaks coming up, you're counting down seconds on the clock, and I didn't pick it up at the time. I spoke to people later in the show who disagreed with the man and I picked it up then. However, this wasn't enough to demonstrate that his comments were wrong and racist. His comments were wrong and they were racist. And they have no place on this broadcast. This is truth radio. We don't deliver gratuitous insults to people, racist or otherwise.

I also made some generic negative statements about Māori people and practices that could have been misconstrued as racist. And I apologise for that, it's not my intention. I'm not racist. I'm not racist. I'm truthful. I'm open, I'm honest. I don't want to be hurtful. I do want to be honest, but I don't want to be and won't be racist.

[6]  Mr Banks was taken off-air by Magic Talk for the remainder of the week during which he was to cover for Peter Williams. MediaWorks made a statement:

We recognise comments broadcast yesterday during a call discussing the departure of Oranga Tamariki’s chief executive were hurtful, and today John Banks unreservedly apologised on air for these.

[7]  MediaWorks chief executive Cam Wallace told staff in an internal memo that Mr Banks would not work at the company again while he was in his role.²

The complaint

[8]  Jamie McAulay complained the broadcast was in breach of the good taste and decency and discrimination and denigration standards, and referred his complaint to the Authority on the basis the action taken by MediaWorks was insufficient:

• ‘The station has not acknowledged the racism or its role in paying for these views to be aired. I'm absolutely disgusted at MediaWorks’ complicity in this racist attack on Māori.’
• The breaches occurred at an organisational level, ‘yet organisational change has not occurred’.
• While the broadcaster accepted that ‘poor…editorial decisions led to frankly abhorrent comments’, this was ‘not an isolated incident but a pattern of behaviour by Magic in the last 7 months, and by the radio industry in the last 15 years’.
• ‘While MediaWorks have offered an apology and put in place some scant policy changes, the fact remains the company has profited from a very serious racist outburst which very clearly breaches to the standards they have agreed to.’
• ‘The blog topic being discussed was bound to generate some negative racial stereotypes and it is not implausible the host and editorial team selected this topic [to] generate controversial content and drive listeners/advertising revenue.’
• ‘Despite acknowledging the “organisational and editorial failures”' that led to this broadcast, there is little evidence of organisational or editorial change - the decision issued by [MediaWorks] repeatedly refer[s] to 'Richard’s' and 'John’s' statements, while not accepting as an organisation that they have created the situation in which these views are aired.’

The broadcaster’s response

[9]  MediaWorks upheld the complaint under both standards:

• ‘…the broadcast fell outside expectations for talkback radio and amounted to hate speech that was offensive to many people, including regular talkback listeners’.
• ‘…both Richard’s comments and the host’s response were extremely denigrating to Māori’.
• ‘Nor did the apology broadcast the following day sufficiently ameliorate the original broadcast. There is an expectation that announcers and producers will have the ability to manage on-air content while attending to technical demands.’
• ‘The broadcast was both an organisational and editorial failure of responsible broadcasting.’
• MediaWorks noted the public’s response: ‘The broadcast received widespread negative media coverage, including the most controversial section of it being shared on Tiktok and Twitter. MediaWorks experienced the withdrawal of support by some advertisers and commercial partners. Several articles and blogs condemned the broadcast and discussed the wider format of talkback including the ability to ‘dump’ hate speech before it goes to air, and John Banks’s broadcast history.’
• ‘Other MediaWorks staff and brands took to the air and social media to address the nature of the comments, including Ryan Bridge of Magic Talk and the Morning Crew from Mai FM. They reiterated that the comments were not acceptable and offered support to those who felt harmed or hurt by the broadcast.’

[10]  MediaWorks commented, ‘Magic Talk management took the immediate step to prevent further breaches by standing down the host on the same day that the apology was aired. Both MediaWorks management and the Committee acknowledge that in order to address both organisational and editorial foundations of the breach, significant steps are required.’ It stated it undertook the following response to the breach of standards:

• ‘Individual meetings were held with Technical Producers, editorial producers and hosts to discuss causes of the breach and the expectations for broadcast standards.’
• ‘A full staff meeting was held with all Magic Talk team members (with Director of HR & Legal and Director of Content) to reiterate and reset processes and the station charter.’
• ‘A written guidance note was prepared by the internal legal team to provide further training on the Broadcasting Standards, in particular, Standard 6.’
• ‘Internal structure is being adjusted to have individual producers for each main weekday programme to maintain a level of editorial control and increase oversight, and give a third party access to the dump button.’
• ‘Other risk reduction measures.’
• ‘Further sessions on cultural understanding and broadcasting standards are to be conducted imminently.’

[11]  In response to Mr McAulay’s referral, MediaWorks submitted:

• ‘In the response to the complainant, MediaWorks explicitly and publicly accepted responsibility for the broadcast, it upheld the complaint, apologised and enforced significant changes to staffing and the operational structure to ensure such a breach does not happen again.’
• ‘The company has not profited from this broadcast, the opposite has occurred, a fact that was widely publicised with the withdrawal of some high profile advertisers as a result of this broadcast. MediaWorks took the announcer off air for the comments he made and publicly stated that the comments were racist and upheld the complaint with an apology acknowledging the harm they caused and took action to ensure that the harm could not be repeated.’
• ‘The complainant's request for staff training and to be ordered off-air fails to objectively consider:
  1. the wide range of actions that have been taken by the broadcaster in response to the serious breaches of Standard 1 and 6 (which include staff training),
  2. the public response to the broadcast that negatively impacted Magic Talk and MediaWorks
  3. the upholding of complaints, and the public apology for organisational and editorial failures that was reported widely in the media.’

The standards

[12]  The good taste and decency standard³ states current norms of good taste and decency should be maintained, consistent with the context of the programme and the wider context of the broadcast. The standard is intended to protect audiences from content likely to cause widespread undue offence or distress, or undermine widely shared community standards.⁴

[13]  The discrimination and denigration standard⁵ protects against broadcasts which encourage the denigration of, or discrimination against, 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. ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment; and ‘denigration’ is defined as devaluing the reputation of a particular section of the community.⁶

Our analysis

[14]  We have listened to the broadcast and read the correspondence listed in the Appendix. Due to the serious nature of the breach, as acknowledged by MediaWorks, we required MediaWorks to supply, and listened to, the full three hour programme to ensure we had the context for the specific comments complained about and which MediaWorks found to breach standards. 

[15]  The right to freedom of expression is an important right in a democracy and we weigh it and the value and public interest in the programme, against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.

[16]  The public interest in a discussion of leadership in a government agency is relatively high. However, the way in which the broadcaster chose to frame this topic for discussion was deeply flawed, served to invite the type of comment listeners heard from ‘Richard’, and ultimately led to a discussion that did not carry such public interest. Weighing this limited public interest against the harm potentially caused by this broadcast, we have concluded that a limitation on the right to freedom of expression is reasonable and justified in this case. Our reasons are set out below.

Action taken (good taste and decency and discrimination and denigration)

[17]  When the Authority receives a complaint which the broadcaster has upheld in the first instance, our role is to consider whether the action taken by the broadcaster effectively addresses the breach. Our consideration of whether the action taken by MediaWorks was sufficient depends on the nature of the breach of standards – that is, the severity of the conduct and the level of harm caused – and the specific circumstances of the complaint. The more serious the breach, generally the more the broadcaster will need to do to remedy it.

[18]  We agree with MediaWorks that the broadcast was in breach of the good taste and decency and discrimination and denigration standards:

• The comments by caller Richard and the endorsement of these by Mr Banks were racist, violating current norms of good taste and decency.
• The comments were beyond audience expectations of the programme and were not justified in the public interest.⁷
• The comments devalued the reputation of Māori as a section of the community, and would have effectively encouraged the different treatment of Māori.⁸
• The comments were malicious and nasty, particularly in the context of the full programme.⁹
• Mr Banks’ apology did not acknowledge the real effect and harm of his comments.

[19]  In considering the sufficiency of MediaWorks’ actions, first we note the robust and opinionated environment that talkback radio represents. This sets audience expectations and grants some latitude to be provocative and edgy in the interests of robust debate.¹⁰ However, this environment also carries a high risk requiring strong editorial guidance and oversight due to the way in which callers’ (and hosts’) commentary may unfold. In a case like this, where the host is a reliever and not the regular ‘personality’, this need for editorial oversight is greater. 

[20]  The breach in this case was not a simple slip-up where MediaWorks personnel failed to identify and respond to an isolated discriminatory comment before it could be broadcast. The way the talkback topic was framed by Mr Banks as part of his introduction (see paragraph [2]) created an environment in which such discriminatory comments were foreseeable and practically inevitable. Mr Banks was not only able to frame the topic in this way, he was also able to conduct talkback conversation on it for an hour. This included the mispronunciation of a caller’s name, Hone, likely to signal to listeners he was welcoming racist discourse (Mr Banks pronounced ‘Hone’ correctly later in the programme). The acknowledged lack of editorial boundary-setting and the systems within the production of the programme increased the severity of the breach to a level which was not sufficiently addressed by the broadcaster.

[21]  We are also conscious that the public platform enjoyed by broadcasters places them in a unique position to influence public views, effectively ‘normalising’ certain behaviours. In these circumstances, the comments broadcast had the potential to cause significant harm within society, particularly amongst Māori communities.

[22]  We consider the actions taken by MediaWorks may have been appropriate in different circumstances (for example, in response to an isolated unintentional breach), but they are not capable of properly addressing what appeared to be the purposeful creation of an environment in which the broadcast of such harmful comments was practically inevitable.

For the above reasons the Authority upholds the complaint that the action taken by MediaWorks Radio Ltd regarding the broadcast of Magic Mornings with John Banks in for Peter Williams on 26 February 2021, having upheld the complaint under Standards 1 and 6 of the Radio Code of Broadcasting Practice, was insufficient.

[23]  Having upheld these complaints under the good taste and decency, and discrimination and denigration standards, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions

[24]  MediaWorks submitted it ‘accepts the Provisional Decision and deeply regrets and apologises for the breach that has occurred’. It submitted a list of factors relevant to the question of orders:

• It undertook a ‘review of and improvement of operational procedures including:

(a)  Individual meetings were held with Technical Producers, editorial producers and hosts to discuss causes of the breach and the expectations for broadcast standards.

(b)  A full staff meeting was held with all Magic Talk team members (with Director of HR & Legal and Director of Content) to reiterate and reset processes and the station charter.

(c)   A written guidance note was prepared by the internal legal team to provide further training on the Broadcasting Standards, in particular, Standard 6.

(d)  Internal structure is being adjusted to have individual producers for each main weekday programme to maintain a level of editorial control and increase oversight, and give a third party access to the dump button.

(e)  Staff were surveyed on their current ability and desire to learn te reo and tikanga which demonstrated strong interest, and a series of workshops have been implemented.’

• It ‘terminated the contract of the relieving announcer’ (Mr Banks).
• ‘The loss of revenue from the withdrawal of advertising since the broadcast over a period of approximately five months (to date)…has equated to $125,000.’
• ‘The clear and unreserved public apology from MediaWorks in its response to complainants that was widely reported by traditional media and on social media.’
• ‘The publication of the Authority’s decision is likely to generate wide media coverage of the breach, and the Authority’s reasoning.’

[25]  The complainant submitted ‘a 24-hour non-broadcast period is the most appropriate action available to the Authority in this case’ given:

• ‘The broadcaster has stated that “The broadcast fell outside expectations for talkback radio and amounted to hate speech” (paragraph 9). This is amongst the most serious breach of standards possible for a media platform in New Zealand.’
• ‘In their analysis, the Authority has determined this was not a simple slip up (paragraph 20), but a “purposeful creation of an environment” in which this hate speech was aired (paragraph 22). To my knowledge, the BSA has not made such a finding previously, and it carries a unique weight in its meaning.’
• ‘Prior precedent for the use of a 24 non-advertising period under section 13 does not align with a breach of this severity. The use of such a mechanism would be inconsistent with past use, and the severity of this breach - given the “purposeful creation of an environment” determination by the Authority.’

Authority’s decision on orders

[26]  In determining whether orders are warranted, the factors we take into consideration are:¹¹

• the seriousness of the breach, and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or to the audience generally
• the objectives of the upheld standards
• the attitude and actions of the broadcaster in relation to the complaint (eg, whether the broadcaster upheld the complaint and/or took mitigating steps, or whether the broadcaster disputed the standards breach and/or aggravated any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• he following aggravating and mitigating factors are relevant in this case:

Aggravating factors:

• The conduct is at the serious end of the spectrum, similar to that in Tualamali’i & Whittaker and MediaWorks Radio, Decision No. 2020-063.
• Two standards were breached.
• The broadcast date was 26 January 2021, a month after the Tualamali’I & Whittaker decision was upheld against MediaWorks (21 December 2020), and a week after the broadcast statement from that decision was aired (20 January 2021).
• We found there was ‘the purposeful creation of an environment in which the broadcast of such harmful comments was practically inevitable’ (see paragraph [22]).
• Mr Banks’ apology the following day failed to acknowledge the real effect and harm of his comments.
• The issues discussed in the broadcast which led to the framing of the talkback conversation, around problems within Oranga Tamariki, continue to be subject to media coverage, and this decision provides guidance and signals the risk of allowing these discussions to be broadcast with limited editorial oversight.

Mitigating factors:

• MediaWorks upheld the complaint in the first instance, apologised and took steps to address the breach, outlined at para [10] of the decision, although the Authority found these were not sufficient to address the breach.
• Mr Banks’ contract with MediaWorks was terminated.
• This decision is likely to receive high public attention.
• According to their submissions, MediaWorks has already lost revenue through withdrawal of advertising following the broadcast.

Broadcast statement – section 13(1)(a)

[28]  A broadcast statement is typically ordered where we consider publication of the decision is insufficient to publicly denounce the breach of broadcasting standards, censure the broadcaster, or rectify the harm caused.

[29]  The breach of standards in this case had the potential to cause significant harm to Māori and to cause widespread offence and distress in our society, as outlined above in paragraph [21]. The apology by Mr Banks the following day was insufficient to address the breach. An ineffective apology in such situations can serve to worsen the harm, by not addressing it seriously.

[30]  We consider a broadcast statement is an appropriate remedy for the harm caused in this case. A broadcast statement will provide a public denunciation of the breach and help remedy this harm.

[31]  Consistent with the Authority’s usual practice, the broadcaster will draft a statement summarising the upheld aspects of our decision, for approval by the Authority. The statement should be broadcast at a similar time, and on the same day of the week, as the original broadcast, in order to reach a similar audience.

Costs to the Crown – section 16(4)

[32]  Costs to the Crown (up to $5,000) are usually ordered where a broadcaster’s conduct resulting in a breach of standards is at the medium-to-serious end of the spectrum, and the Authority determines a punitive response is required.

[33]  Having balanced the factors outlined above, we consider that in this instance, the conduct and seriousness of the breach justify an award of costs to the Crown. We consider a punitive response is required to hold the broadcaster to account, deter future non-compliance and confirm our expectations.

[34]  We note in Tualamali’i & Whittaker we commented:

While we do not have the power to require MediaWorks to provide evidence of due diligence such as training and organisational meetings to avoid future breaches, we note that any actions undertaken by MediaWorks will prove their effectiveness by preventing outcomes such as this decision.

[35]  In light of that, it is disappointing to see a more severe breach so close to that decision.

[36]  We considered the breach in this case to be more severe than that in Tualamali’i & Whittaker given the lack of editorial boundary-setting, as discussed above. However, MediaWorks’ response in this case, having upheld and taken steps to address the complaint, was more appropriate. It has also accepted our findings and outlined specific actions it has taken and will take in response to the breach. The costs order in this case would have been higher than that in Tualamali’i & Whittaker but for the broadcaster’s response to the breach. Given that response, we consider it is appropriate to make a costs order not exceeding that in Tualamali’i & Whittaker. We consider an order of costs in the amount of $3,000 is appropriate.

Other actions

[37]  Mr McAulay has requested we order MediaWorks to refrain from broadcasting for a period. We do not consider any more severe orders, such as directions to refrain from advertising (s13(1)(b)(ii) or from broadcasting (s13(1)(b)(i)), appropriate in this instance. Orders of this nature are made rarely and only in exceptional circumstances, and are intended to respond to significant breaches of broadcasting standards resulting in:

• numerous and serious deficiencies
• significant personal damage
• denial of natural justice
• breach of professional ethics
• breach of responsible journalism principles 
• substantial harm to individuals or society generally.

[38]  This case, while serious, does not reach a threshold justifying such orders.

Orders

1.  Under section 13(1)(a) of the Broadcasting Act 1989, the Authority orders MediaWorks Radio Ltd to broadcast a statement. The statement shall:

• be broadcast during Magic Mornings with Peter Williams on Magic Talk
• be broadcast at a similar time, and on the same day of the week, as the original broadcast
• be broadcast within one month of the date of this decision
• contain a comprehensive summary of the upheld aspects of the Authority’s decision
• be approved by the Authority prior to being broadcast.

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 above orders have been complied with.

2.  Under section 16(4) of the Broadcasting Act 1989, the Authority orders MediaWorks Radio Ltd to pay to the Crown costs in the amount of $3,000 within one month of the date of this decision.

The order for costs is enforceable in the District Court.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

11 August 2021

Appendix

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

1  Jamie McAulay’s complaint to MediaWorks – 27 January 2021

2  MediaWorks’ decision – 25 February 2021

3  Mr McAulay’s referral to the BSA – 25 February 2021

4  MediaWorks’ comments on the referral – 31 March 2021

5  Mr McAulay’s final comments – 14 April 2021

6  Mr McAulay’s submissions on orders – 22 June 2021

7  MediaWorks’ submissions on orders – 9 July 2021

¹ Bonnie Flaws “Vodafone, Kiwibank pull advertising from Magic Talk after racist comments endorsed by host John Banks” Stuff (online ed, New Zealand, 27 January 2021)
² Hayden Donnell “MediaWorks admits 'organisational failure' over racist radio broadcast” RNZ (online ed, New Zealand, 26 February 2021)
³ Standard 1 of the Radio Code of Broadcasting Practice
⁴ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
⁵ Standard 6 of the Radio Code of Broadcasting Practice
⁶ Guideline 6a
⁷ Guideline 1a
⁸ Guideline 6a
⁹ Guideline 6b
¹⁰ Guideline 1c
¹¹ Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58